Injustice cost votes in Punjab polls

By Jasmine Marwaha and Meenakshi Ganguly

Published in The Asian Age (Feb. 27, 2007)

Mumbai: As Punjab went to the polls to elect a new state government this month, political pundits attributed the lack of a clear Congress victory in exit polls to frustration with the rising consumer prices under the UPA Central administration.

The newly-elected Punjab government, however, may not realise that the cost of ignoring human rights violations in Punjab is also increasing exponentially. The problem of widespread impunity for “disappearances” is being put to the test with the handling of the Punjab mass cremations case. This case will determine the Indian state’s willingness to uphold the rule of law in the face of internal security challenges. The consequences of this case will be felt throughout the country for years to come.

The legal battle is the bitter fruit of the violent Sikh secessionist movement and the brutal counter-insurgency efforts that followed, most infamously symbolised by the Army’s attack on the Sikh “Golden Temple” in Amritsar in 1984, which militants were using as a base. Hundreds of civilian pilgrims died when Prime Minister Indira Gandhi sent in tanks. After Gandhi’s Sikh bodyguards exacted revenge by assassinating her, the government unleashed a pogrom against Sikhs in Delhi and other cities, with thousands massacred. None of the organisers or senior officials involved has been held criminally responsible.

For the next ten years, Indian security forces engaged in a murderous counter-insurgency operation perpetrating torture, enforced “disappearances” and extrajudicial executions of tens of thousands of Sikhs in false encounters. A small percentage of victims have received compensation. Only a handful of victims have received justice.

The family of Udham Singh is among those still waiting. Singh, 62, was abducted by the Punjab police in front of his family on July 1, 1992, taken to an interrogation centre with his son, and a few days later killed and cremated by the police. After a 10-year legal battle for justice, his family has been granted a paltry Rs 250,000 (US $5,663) without any admission of wrongdoing by the government.

A public interest lawsuit on “disappearances” and secret cremations in Punjab, filed in 1995, has yet to be resolved. The Indian National Human Rights Commission (NHRC), cited often by the government as the symbol of its commitment to the protection of human rights, granted compensation in 1,245 cases—but only on the grounds that the Punjab police did not follow the rules for cremating a body. Sadly, it has refused to investigate how those individuals were killed in the first place, hear the testimony of any survivor, or hold a single official liable. And it has only agreed to look at cases of people who were cremated in Amritsar district—one of the then 13 districts in Punjab.

After its decade-long inquiry, the NHRC has established yet another one-man commission in Amritsar to identify and compensate a last group of 814 secret cremation victims. The commission, due to hold its fourth hearing on March 3, is not empowered to investigate the killings or hold those responsible to account.

Mohinder Singh, a member of the Association of Families of the Disappeared in Punjab, says that cash compensation is not enough. Over the past decade, he has collected evidence of his son’s abduction and secret cremation by Punjab Police in 1995. He has repeatedly appealed to politicians, police and the courts to prosecute his son’s killers. Even as he appears before this latest Punjab commission, he has little hope for justice. “Why doesn’t the judiciary take any action against the police?” he asks.

The answer to his question exposes the duplicity of a system that equates compensation with justice and accountability. It is a strategy that covers up gross human rights violations and makes a mockery of the rule of law. The NHRC’s final decree of compensation aims to silence the victims and put the matter to rest with as little disruption as possible to the status quo.

The problem for the Indian government, as with governments all over the world that fail to address past crimes, is that there are many people like Mohinder Singh who will not accept a cash payoff in return for silence. They want justice.

Mohinder Singh and others are ready to take their cases to the Indian Supreme Court. While it will be under great pressure from the state not to recognise these claims, it is crucial that the Supreme Court—one of the most respected in the world—acts to establish the principle of accountability, which is as fundamental to protecting human rights as it is to protecting the economy.

Together, the newly elected government in Punjab and the Supreme Court can change a government’s system focused on silencing victims and avoiding embarrassment into one that is accountable to all its citizens.

Jasmine Marwaha is Programme Associate at Ensaaf. Meenakshi Ganguly is South Asia researcher for Human Rights Watch.

On March 6, 2007, the U.S. State Department released its annual Country Reports on Human Rights Practices.  According to the State Department, India “generally respected the rights of its citizens; however, numerous serious problems remained.”

Among those serious problems, the State Department cited the lack of progress in holding police and security officials accountable for abuses committed in Punjab during the counterinsurgency campaign from 1984 to 1994. The report noted the limited compensation amounts given to a relatively few individuals, in contrast to the thousands of disappearance cases reported to the Indian National Human Rights Commission (NHRC) and estimated by Ensaaf. The report referenced the NHRC case: “The government has made little progress holding hundreds of police and security officials accountable for serious human rights abuses committed during the Punjab counterinsurgency of 1984-94, despite the presence of a special investigation commission.”

The report also highlights the legal petition calling for the investigation and prosecution of former Punjab police chief KPS Gill for the abduction, illegal detention, torture, and murder of human rights activist Jaswant Singh Khalra, citing Ensaaf in describing the petition. Ensaaf drafted the petition’s international law arguments on the doctrine of superior responsibility, and continues to provide litigation support.  

The full country report can be found here.

On October 9th, 2006, the Indian National Human Rights Commission (NHRC) effectively ended its consideration of the Punjab mass cremations case, arbitrarily compensating 1,245 victim families and establishing another commission of inquiry. Among its many failings in the case, the NHRC refused to investigate a single cremation, thus making any compensation arbitrary and inadequate. Moreover, the NHRC failed to hold any officials accountable for the victims’ deaths.

Ensaaf’s summary report, India Burning the Rule of Law (pdf), describes the history and legal proceedings in the Punjab mass cremations case. The ultimate resolution of the case will serve as precedent for victims of mass state crimes throughout India and will give content to the rights to life and redress. Ensaaf is working in partnership with the Committee for Information and Initiative on Punjab, an original petitioner in the case, to challenge the NHRC’s ten-year denial of justice and create precedent based on international human rights and Indian law.

Of the 2000-plus illegal cremations in Punjab acknowledged by the National Human Rights Commission (NHRC) in the Punjab mass cremations case, 814 bodies have yet to be identified. The NHRC appointed a Commissioner, retired High Court Judge K.S. Bhalla, for receiving evidence and conducting an inquiry to identify the remaining bodies, if possible, within eight months. In its October 9, 2006 order, the NHRC stated the Commission must complete the identification in association with petitioner Committee for Information and Initiative on Punjab (CIIP) and any other parties who wished to provide relevant evidence.

The first two official hearings of the Bhalla Commission occurred on December 15, 2006 and January 2, 2007. The Bhalla Commission and NHRC also held ex parte meetings, excluding the petitioner CIIP. Further, as a result of the secret meetings, the NHRC issued an order on October 30, 2006, that restricted the mandate of the Bhalla Commission to consideration of only those claims submitted in response to two notices issued in 1999, which resulted in 88 claims, and in 2004, which resulted in 1,769 claims. Both the NHRC and Bhalla Commission have refused to give CIIP copies of the 1,769 claims, even though the CIIP helped collect those claims.

Lack of Impartiality

The NHRC held an ex parte meeting on October 13th with Justice Bhalla and the Punjab Police, where it limited the Bhalla Commission’s mandate to consideration of the claims submitted in 1999 and 2004, as stated in paragraph 16 of the October 30th order. The Bhalla Commission’s lack of transparency continued at the January 2nd hearing, where Justice Bhalla left the courtroom to hold private discussions with representatives of the Punjab Police, before returning to start the hearing.

Arbitrary and Ineffective Approach to Identifying Cremations

The October 30th NHRC order further reduced the Bhalla Commission’s ability to identify the remaining bodies by issuing notice to the prior claimants through newspapers on one day. Although the Bhalla Commission possessed the addresses of the 1,857 families who had submitted claims to the NHRC in 1999 and 2004, it failed to notify the families by mail. The inefficacy of the newspapers is demonstrated by the fact that merely 219 individuals responded to the notice, of which only 70 were found admissible by the Bhalla Commission. Moreover, as these 1,857 claims were already on file with the NHRC, these claims should have been automatically reviewed by the Bhalla Commission.

Cases that were previously identified have now been labeled unidentified, further demonstrating the defects in both the NHRC’s and Bhalla Commission’s abilities to systematically identify the victims. Out of the 88 claims that were filed in response to the NHRC’s first public notice in 1999, the Punjab Police had agreed to award compensation to 18 families with no admission of liability or guilt. All 18 families rejected the compensation in 2000. Because these families responded to the NHRC’s first public notice and qualified for compensation, they should be included in the list of identified cremations. However, some of their cases correlate with the cases in the unidentified list, based on date of cremation, place of cremation, and police station.

The limitation placed on the Bhalla Commission, to only reviewing those claims submitted in response to the prior NHRC notices, prevents families from identifying new cases in the unidentified cremations list. Even if a family knows that their next of kin was cremated in Amritsar and may be among the remaining 814 unidentified bodies, they are precluded from submitting a claim because they did not respond to the 1999 and 2004 notices. This excludes the case of Darshan Kaur, for example, whose son Hardeep Singh was abducted, killed, and cremated by the Punjab police in Amritsar district in 1991.

Key issues highlight the need for Bhalla to adopt a rigorous methodology to establish the identities of victims, and act independently of the Punjab Police to resolve the identities. First, the NHRC’s own list of 1,245 identified cremations contains at least 115 decedents abducted from outside of Amritsar, but cremated in Amritsar. The Bhalla Commission, however, has refused to look at cases from outside of Amritsar district. Second, in response to the NHRC’s first public notice in 1999, the Punjab Police disputed 44 claims of cremations that may be among the unidentified bodies. These cases must be investigated independently of the Punjab Police.

CIIP’s Arguments

At the first hearing, CIIP argued for the need of a rigorous methodology to resolve the unidentified cremations, especially in light of the admission of the Punjab government that it forged over 300 cremations in order to conceal the identity of police collaborators. It would be necessary to ensure that the true identity of the cremation victim was established in order to prevent the families of individuals who had not been cremated from receiving compensation and ensure that the true victim’s family, who was cremated in lieu of the collaborator, received compensation. CIIP further stressed the need to explore additional sources of information from throughout Punjab, such as First Information Reports, post mortem reports, habeas corpus petitions, and news reports on abductions, disappearances and encounters in order to identify the remaining bodies. The NHRC had itself catalogued that many of the 1,245 identified cremations came from outside of Amritsar district.

At the second hearing on January 2nd, the CIIP again proposed through written submission and oral argument that the Commission adopt a methodology based on receiving claims from throughout Punjab, and police, hospital, and court records.

The Commission’s proceedings have also been covered by the Hindustan Times, among other publications. On December 31, 2006, Ram Narayan Kumar published an op-ed in the Tribune.

On December 23, 2006, Jalandhar and Ropar police officials arrested three Sikhs, Amolak Singh, Jasvinder Singh, and Parmjeet Singh Dhadi, on suspicion of planning terrorist activities to disrupt next year’s assembly elections in Punjab.  Mr. Dhadi, a UK citizen, claims to have been tortured in Jalandhar police custody. They have since been transferred to the high-security Nabha Jail in Punjab. 

The circumstances and reasons for the arrests are being challenged by attorneys for the three accused. Punjab police assert that explosives were recovered from the three. They also claim that ammunition was recovered from a straw heap on Dhadi’s farm in the village of Gakhal. However, the Sarpanch (village leader) claims that police never came to the village before making their assertion.

Family members of Mr. Dhadi allege that police beat him with sticks, stretched his legs, and forcibly removed his articles of faith. They also state that he was forced to sign a confessional statement.