Protecting the Killers: A Policy of Impunity in Punjab, India | HRW

Protecting the Killers: A Policy of Impunity in Punjab, India | HRW
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Protecting the Killers
A Policy of Impunity in Punjab, India
I. Summary
Key recommendations
II. Methodology
III. Background
IV. International and Domestic Legal Standards and Norms
The right to an effective remedy
Superior responsibility
Indian law...
V. Failure of Justice
A. NHRC and the Punjab mass cremations case..
B. CBI failure to investigate extrajudicial
killings
C. The murder of Jaswant Singh Khalra:
Intimidation of witnesses and superior responsibility
D. The killing of Jugraj Singh: Police
intimidation and failure of due process
E. Attacks on civilians: The killing of Charanjit
Kaur
F. Harrassment of relatives: The case of
Mohinderpal Singh alias Pali
G. The "disappearance" of Ajmer Singh..
H. Dispiriting delays: The killing of Kulwinder
Singh alias Kid.. 100
VI. Remedial Framework to Combat Impunity106
Combating impunity106
Right to knowledge: Commission of inquiry107
Right to justice: Special Prosecutor's Office.. 115
Right to reparations: A comprehensive reparations
program... 118
Acknowledgements123
I. Summary
I did everything in the pursuit of truth and justice. I
even begged. But all this failed me. What else could I have done?...There is a
Punjabi saying that after 12 years, even a pile of manure gets to be heard. But
for me, after 12 years, nobody is listening-this must mean that I am worth even
less than manure.
-Mohinder Singh, father of extrajudicial execution victim
Jugraj Singh
Despite a strong democracy and a vibrant civil society, impunity
for human rights abuses is thriving in India. Particularly in
counterinsurgency operations, Indian security
forces commit human rights abuses with the knowledge that there
is little chance of being held accountable. Human Rights Watch documented this
most recently in its September 2006 report,
"Everyone
Lives in Fear": Patterns of Impunity in Jammu
and Kashmir
, which showed a vicious cycle of
abuse and impunity that has fueled the conflict.
The
impunity gap in India is
nowhere more evident than in Punjab. Over a
decade has passed since the government defeated a separatist Sikh rebellion.
Tens
of thousands of people died during this period, which stretched from early
1980s through the mid-1990s. Sikh militants were responsible for serious human
rights abuses including the massacre of civilians, attacks upon Hindu
minorities in the state, indiscriminate bomb attacks in crowded places, and the
assassination of a number of political leaders. Prime Minister Indira Gandhi's
Sikh bodyguards assassinated her in 1984. The Sikh insurgency paralyzed the
economy and led to widespread extortion and land grabs.
At the same time, from 1984 to
1995 the Indian government ordered counterinsurgency operations that led to the
arbitrary detention, torture, extrajudicial execution, and enforced
disappearance of thousands of Sikhs. Police abducted young Sikh men on
suspicion that they were involved in the militancy, often in the presence of
witnesses, yet later denied having them in custody. Most of the victims of such
enforced disappearances are believed to have been killed. To hide the evidence
of their crimes, security forces secretly disposed of the bodies, usually by
cremating them. When the government was questioned about "disappeared" youth in
Punjab, it often claimed that they had gone
abroad to Western countries.
Special counterinsurgency laws, and a system of rewards and
incentives for police to capture and kill militants, led to an increase in
"disappearances" and extrajudicial executions of civilians and militants alike.
In 1994, Human Rights Watch and Physicians for Human Rights described the
government's operations as "the most extreme example of a policy in which the
end appeared to justify any and all means, including torture and murder."
The Punjab mass cremations case a primary subject of this
report-has its roots in investigations by human rights activists Jaswant Singh
Khalra and Jaspal Singh Dhillon conducted in 1994 and early 1995, when they
used government crematoria records to expose over 6,000 secret cremations by
the police in just one of then 13 districts in Punjab. Based on the information
gathered by them, the Committee for Information and Initiative on Punjab (CIIP)
moved the Supreme Court in April 1995 to demand a comprehensive inquiry into
extrajudicial executions ending in secret cremations.
Meanwhile, after repeatedly
threatening him, several officials of the Punjab
police arbitrarily arrested, detained, tortured, and killed Jaswant Singh
Khalra in October 1995. Khalra's murder, and the eventual conviction of his
killers 10 years later, made the reality of thousands of "disappearances" and
extrajudicial executions impossible to deny. The Indian government even
admitted that it illegally cremated 2,097 individuals in Amritsar. Alarmingly, officials are yet to be
held accountable for these thousands of custodial deaths.
After hearing the CIIP petition, the Supreme Court, in 1996,
ordered India's
National Human Rights Commission (NHRC) to address all issues that arose from
the mass cremations and granted the Commission extraordinary powers to complete
this task. In over 10 years of proceedings, however, the NHRC has failed to
properly address civil liability and accountability issues by refusing to
independently investigate a single abuse or allow a single victim family to
testify. Instead, the Commission has based its findings on information provided
by the Punjab police, the perpetrators of the
cremations. Furthermore, the Commission has limited its inquiry to 2,097
cremations in three crematoria in one district of Punjab and has refused to consider
mass cremations, extrajudicial executions, and "disappearances" throughout the
rest of the state, despite evidence that these crimes were perpetrated.
In an October 9, 2006 order, which effectively closed all of
the major issues in the Punjab mass cremations case, the NHRC appointed a
commissioner of inquiry in Amritsar, retired High Court judge K.S. Bhalla, to
identify the remaining cremation victims from those acknowledged by the
government, if possible, within eight months. Though the Bhalla Commission
received a limited mandate, it could have devised an independent methodology
for identifying victims, conducted its own investigations, and allowed for more
evidence from victim families. Instead, it continued the NHRC practice of
relying on the Punjab police for
identifications or confirmations of victims of illegal cremations.
When the Supreme Court designated the NHRC as its body to
investigate the human rights violations raised by the Punjab
mass cremations case, it also entrusted the Central Bureau of Investigation (CBI)
to look into the culpability of police officials. Over 10 years later, the
petitioners have no information on whether there have been any prosecutions. In
a submission before the NHRC in 1999, the CBI stated that it had registered 30
regular cases for investigation "out of which 12 cases have been finalised
and18 cases are pending investigation." The number of cases registered for
investigation by the CBI demonstrates the limits of the CBI inquiry, since it apparently
found it necessary to register only 30 cases corresponding to 2,097 admitted
illegal cremations. It also ignored the remaining vast majority of
"disappearances" and extrajudicial executions that occurred throughout Punjab.
Even the pursuit for justice for the abduction, torture, and
murder of human rights defender Jaswant Singh Khalra illustrates many of the
challenges facing family members of victims in Punjab
who wish to pursue legal remedies. The police threatened and illegally detained
witnesses and filed false cases against some of them. It took 10 years before a
judge finally convicted six Punjab police
officers for their roles in the abduction and murder of Khalra. Further,
despite eyewitness testimony implicating then Director General of Police (DGP)
KPS Gill in Khalra's illegal detention and murder, the CBI has yet to bring
charges against him.
Worryingly, the Indian
government cites the counterinsurgency operations in Punjab as a model for
handling security crises and has replicated it to tackle law and order problems
and armed conflicts in other parts of India. Security forces, provided
de facto
impunity by the state and
protected by immunity laws, have continued to commit serious human rights
abuses. Indian police often torture security detainees. Human rights groups
have demanded proper investigations because of persistent and credible
allegations that security forces also continue to construct faked encounters to
kill suspects and ordinary persons, in the hope of receiving rewards and
promotions.
Even when investigations identify those responsible for such
grave human rights abuses, the government seldom publicly prosecutes or
punishes the perpetrators. Although many government officials privately agree
that the scale of human rights violations has increased, they resist any
accountability efforts because they claim it would affect the morale of
security forces operating in difficult circumstances. The Indian government
has refused to acknowledge the systemic nature of
the problem of impunity, and has done little to address the underlying problems
that have led to abuse.
India
must act to put an end to the institutional defects that foster impunity if it
is serious about effective conflict resolution and lasting peace. In this
report we focus on select cases in Punjab to
illustrate these institutional defects. The past decade of proceedings
concerning state crimes in Punjab have
represented a series of refusals to acknowledge the widespread and systematic
human rights violations, and the failure to apply international and Indian
standards to provide reparations for these abuses. The cases we investigated
demonstrate the failure of various government agencies including the police,
the courts, the CBI, and the NHRC, to provide justice.
For instance, the Indian government points to its National
Human Rights Commission as proof of its commitment to the protection of human
rights. As the Punjab mass cremations case
shows, the National Human Rights Commission chose to limit the mandate it
received from the Supreme Court and refused to provide redress according to
Indian and international law. Yet, this case represents the best opportunity to
challenge institutionalized impunity in India.Since this matter is still under the
jurisdiction of the Supreme Court, which has extraordinary powers to remedy
human rights violations, there is an opportunity to provide justice in this
case and set a positive precedent for the redress of state abuses.
Victims and their families still demand redress from the
Indian state, but they face severe challenges. These include prolonged trials,
biased prosecutors, an unresponsive judiciary, police intimidation and
harassment of witnesses-many of whom eventually turn hostile-and the failure to
charge senior police officers despite evidence of their role in the abuses.
None of the government officials who bear substantial responsibility for these
atrocities have been brought to justice. Instead, the Indian government's
strategy appears to be to deny its crimes and wait out the demands for
accountability.
Impunity for these atrocities exists despite the fact that a
series of elections have been held in Punjab
since 1992, and almost all of the primary political parties have taken turns in
power. Political leaders have
consistently portrayed
abuses as aberrations and perpetrators as lone, rogue actors, despite evidence
that senior police and civilian leaders knew about and may even have authorized
the abuses. Further, each government has promoted officers accused of gross
human rights violations during the counterinsurgency.
The Indian government consistently denies in its submissions
to the United Nations special procedures that its security forces committed
human rights abuses during the Punjab
counterinsurgency. Officials have instead sometimes equated human rights groups
with terrorists. The leader of Punjab's
counterinsurgency efforts, KPS Gill, has led the attack against the pursuit of
justice, describing legal petitions as a weapon of terrorism-a "litigation gun"
that has served as an "instrument of primary attack."
Such an aggressive position from the government bodes ill
for future progress on impunity, not just in Punjab, but in other parts of India, where
human rights defenders are coming under similar criticism, often accused of
being the "enemy" if they speak against state forces.
Unless Indian officials find the political will to demand
investigations, prosecutions, punishment, and reparations, human rights
violations will continue. There is ample opportunity to take action in Punjab. Security has been restored. Further, strong
documentation of violations has emerged and families continue to pursue
accountability efforts. Although the Indian government claims that it took
action against dozens of security officers for abuses in Punjab,
many of these actions were limited to transfers or demotions. Criminal
convictions, especially of senior officers implicated in abuse, have been rare.
Further, the government has not addressed the thousands of abuses perpetrated.
India
must begin to develop effective mechanisms to redress mass state crimes and the
specific institutional defects that promote impunity. As the mass cremations
case and other cases come before the Supreme Court, the court has the
opportunity and responsibility to create new remedies to redress these
violations. An effective remedy requires the state to take the necessary
investigative, judicial, and reparatory steps to redress the violations.
Reparations should include restitution, rehabilitation, compensation, and
satisfaction and guarantees of non-recurrence. To redress the mass state crimes
in Punjab, India will need to conduct
comprehensive investigations, prosecute the most responsible officials in a
timely manner, and provide and implement reparations for victims and their
families.
We provide a remedial framework in this report to ensure an
effective remedy for all persons whose rights were violated in Punjab during the counterinsurgency. We recommend a
commission of inquiry that will investigate the entire scale and scope of the
crimes, outline institutional responsibility, and identify those who planned
and ordered the abuses; a special prosecutor's office with fast track courts
that will speedily and impartially investigate and prosecute systems crimes, including
command structures and disciplinary practices; and a comprehensive reparations
program, based on the full spectrum of rights violations. When the Punjab mass cremations case returns to the Supreme Court,
the Court could implement such mechanisms in forging its remedy.
The Indian government should not believe that these crimes
will fade into history. International law recognizes enforced disappearance as
a crime for which any statute of limitations must take into account the
continuous nature of the offense.Moreover, the state is under a continuing legal obligation to provide
victims of rights violations and their families an effective remedy and
reparations. The reputation of the Indian state as a gross human rights
violator will persist until it fulfills these obligations.
Key recommendations
The Indian government must publicly announce its
opposition to human rights violations by making clear that torture, custodial
killings, faked armed-encounter killings, and "disappearances" will not be
tolerated under any circumstances.
The government must demonstrate its opposition
to such violations by holding criminally responsible officials who order,
tolerate, or commit such practices. A good beginning will be to prosecute those
found responsible for such abuses in Punjab,
in particular the key architects of the crimes.
The government should appoint a national
commission to a
llow an impartial and
independent investigation into allegations of torture and mistreatment and i
nvestigate
the fate of all those who were "disappeared" or killed by state security forces
in Punjab. All victims and their families
should be able to register allegations of human rights abuses. Unlike numerous
commissions already established to inquire into allegations of state-sponsored
crimes, this one should be strictly time bound and able to access information
from government records and victim families.
All legal provisions providing effective
immunity to members of the police and paramilitary forces should be repealed so
that perpetrators of human rights violations can be brought to justice.
The Indian government should create a Special
Prosecutor's Office and fast track courts to impartially investigate "system
crimes" and prosecute the most responsible perpetrators.
The Indian government should provide victims and
their beneficiaries with reparations through a prompt and effective procedure
that redresses the entire scope of violations.
India
is a member of the United Nations Human Rights Council and thus bound to
cooperate with its mechanisms. The Indian government should issue standing
invitations to relevant United Nations thematic human rights rapporteurs or
working groups to investigate the allegations of human rights abuses in Punjab.
The international community must condemn violations
of human rights by Indian security forces and make future military aid and
sales and all programs of military cooperation with India
conditional to India
taking significant steps to end impunity for its security forces.
II. Methodology
This report is based on a series of trips by Ensaaf
researchers to Punjab, India, between January 2007 and
April 2007, during which time they attended the hearings of the Bhalla
Commission of Inquiry and conducted interviews with 45 families of victims of
"disappearances" and extrajudicial executions. During this time, Ensaaf also
interviewed human rights defenders and journalists and researched key legal
cases. Additional research was conducted by telephone, email, and meetings with
nongovernmental organizations (NGOs), activists, and lawyers outside of India.
Throughout 2006, Ensaaf collected and researched thousands of legal records,
news articles, and other documents. All efforts have been made to provide
current information on unresolved and ongoing cases documented in this reportas of September 2007. In
certain cases, in order protect victims and others who fear reprisal by the
Indian government for speaking about human rights abuses, identifying
information has been withheld.
III. Background
Thousands of mothers await their sons even though some may
know that that the oppressor has not spared their sons' lives on this earth. A
mother's heart is such that even if she sees her son's dead body, she does not
accept that her son has left her. And those mothers who have not even seen
their children's dead bodies, they were asking us: at least find out, is our
son alive or not?
[1]
-Jaswant Singh Khalra, human rights activist, killed
October 1995
The religious minority community of Sikhs represents two
percent of India's
population, and 60 percent of the population in the northern Indian state of Punjab.
[2]
The 1980s in Punjab
witnessed a decade-long insurgency by Sikh militants, fueled by failed attempts
at procuring greater autonomy. Militants were responsible for numerous human
rights abuses during the violent separatist struggle for an independent
Khalistan, including the killings of Hindu and Sikh civilians, assassinations
of political leaders, and the indiscriminate use of bombs leading to a large
number of civilian deaths in Punjab and other parts of India.
[3]
Under the cover of militancy, criminals began to coerce businessmen and
landowners, demanding protection money. The Indian government responded with
force, leading to numerous allegations of human rights violations.
[4]
The Sikh militant movement in Punjab escalated after the
Indian Army raided the Harmandir Sahib (Golden Temple) complex in Amritsar,
Punjab-the center of Sikh religious and political life-on June 4, 1984, along
with 41 other
gurdwaras
[5]
in Punjab.
[6]
Scores of militants had retreated into the Harmandir Sahib complex.
[7]
During the exchange of firing with the ensconced militants
after troops entered the complex, and the subsequent executions by the Army,
thousands were believed to have been killed, the majority of them Sikh
pilgrims.
[8]
The indiscriminate use of force led to heavy damages to the Harmandir Sahib
complex which caused tremendous outrage among Sikhs, many of whom did not
support the militant campaign for a separate Khalistan.
[9]
On October 31, 1984, two Sikh members of Prime Minister Indira Gandhi's
security staff assassinated her in Delhi.
After the assassination, senior politicians and police officers orchestrated
pogroms of Sikhs in various cities across India,
killing at least 2,733 Sikhs in Delhi
alone.
[10]
Gangs of assailants burned Sikhs alive, raped women, and destroyed their
gurdwaras
and properties. The violence
continued unabated for four days. None of the senior politicians or police
officers identified by victims and eyewitnesses as organizing or perpetrating
the massacres were held criminally responsible.
[11]
On September 28, 2007, 23 years after the pogroms, the CBI said it was closings
its case against some Congress politicians because it was unable to find
witnesses; most were dead or had refused to testify.
[12]
In August 2005, the Justice G.T. Nanavati Commission had found that no proper
investigation was done by the police even in cases registered by them.
[13]
From May 11, 1987 to February
25, 1992, the Indian government dismissed the elected government in Punjab and imposed President's Rule, that is, direct
governance by the central government.
[14]
In addition, India's
Parliament enacted counterinsurgency legislation that facilitated human rights
violations and shielded security forces from accountability for these
violations. The National Security Act was amended to allow for detention
without trial for up to two years in Punjab for acts prejudicial to the
security or defense of India.
[15]
The Terrorist and Disruptive Activities (Prevention) Act of 1987 (TADA),
provided the police with powers of search, seizure, and arrest.
[16]
Under Section 15, a confession allegedly voluntarily made before a police
officer, not lower in rank than a superintendent of police, was admissible in
court against an accused (or co-accused, abettor or conspirator) for an offense
under this Act.
[17]
There were widespread allegations that police routinely used torture to obtain
confessions from detainees and/or planted evidence as a means of detaining them
under TADA. The Terrorist Affected Areas (Special Courts) Act of 1984 provided
for special
in-camera
courts in
"terrorist affected" areas that could conceal the identity of witnesses. In
addition, a defendant charged with "waging war" had the burden of proving his
innocence.
[18]
The Armed Forces (Punjab and Chandigarh)
Special Powers Act of 1983 empowered security forces to search premises and
arrest people without warrant. Section 4 of the Special Powers Act allowed
security forces to shoot to kill suspected terrorists, and Section 7 extended
prosecutorial immunity to any action taken pursuant to the Act.
[19]
TADA, too, provided immunity from prosecutions for any acts in "good faith done
or purported to be done in pursuance of this Act."
[20]
Indian security forces arbitrarily detained, tortured,
executed, and "disappeared" tens of thousands of Sikhs in counterinsurgency
operations.
[21]
In the early 1990s, Director General of Police (DGP) KPS Gill expanded upon a
system of rewards and incentives for police to capture and kill militants, leading
to an increase in "disappearances" and extrajudicial executions of civilians
and militants alike.
[22]
The United States government
described the Punjab police practice of faked
encounter killings in 1993:
In the typical scenario, police take into custody a
suspected militant or militant supporter without filing an arrest report. If
the detainee dies during interrogation or is executed, officials deny he was
ever in custody and claim he died during an armed encounter with police or
security forces. Alternatively, police may claim to have been ambushed by
militants while escorting a suspect. Although the detainee invariably dies in
"crossfire," police casualties in these "incidents" are rare.
[23]
In the majority of cases, the police abducted the victims of
extrajudicial executions or "disappearances" in the presence of witnesses,
often family members.
[24]
Family members of the victims further experienced multiple forms of abuse. A
recent study conducted by Physicians for Human Rights (PHR) and the
Bellevue/NYU Medical Center Program for Survivors of Torture revealed that
family members of the "disappeared" were also tortured in over half of the
cases they investigated.
[25]
Security forces further persecuted their victims through
extortion and destruction of property, such as crops, livestock, and buildings.
They obstructed justice by intimidating witnesses and lawyers, detaining and
torturing family members, and failing to comply with court orders to release
detainees.
[26]
In the 1994 report
Dead Silence: Legacy
of Abuses in Punjab
, Human Rights Watch/Asia and PHR described the
government counter-insurgency operations as "the most extreme example of a
policy in which the end appeared to justify any and all means, including
torture and murder."
[27]
Hundreds of perpetrators have escaped accountability,including all
of the major architects of these crimes.
[28]
In early 1995, human rights activists Jaswant Singh Khalra
and Jaspal Singh Dhillon, of the Akali Dal political party, used government
crematoria records to expose over 6,000 secret cremations by the police in just
one of then 13 districts in Punjab. They focused their investigations on
illegal cremations, putting aside other possible ends of the victims' bodies,
such as dismemberment or dumping in canals. Jaswant Singh Khalra described how
the hesitation of family members to report "disappearances" led him and Dhillon
to the cremation grounds: "[C]ountless mothers, countless sisters weren't ready
to say that [their loved one was "disappeared"]. They said, "[I]f you take this
issue further, and our son is still alive, they [the police] will kill him."
[29]
Thus, Khalra and Dhillon went to the cremation grounds:
We went and asked the employees: 'During this time, how
many dead bodies did the police give you?' Some said we burned eight to 10
everyday.Some said there was no way to
keep account; sometimes a truck full of bodies came, and sometimes two to four
dead bodies came [T]hey told us we could get the account from one place: 'The
police gave us the dead bodies, and the municipal committee gave us the
firewood.'
[30]
As Khalra began collecting
information from the municipal records which gave the number of dead bodies
brought by specific police officers and the amount of firewood purchased to
burn the bodies, he also began to receive threats from the security forces.
Eventually, the Punjab police abducted Jaswant
Singh Khalra on September 6, 1995, secretly detained and tortured him for
almost two months, and murdered him in late October 1995.
[31]
His body was dumped in a canal. Six police officers were convicted of charges
relating to his murder and abduction in November 2005, although a petition
calling for charges against former DGP Gill remains pending.
[32]
The end to counterinsurgency operations has brought an end
to systematic extrajudicial killings and "disappearances" in Punjab.
However, the vast majority of these "disappearances" remain unresolved, and
major perpetrators of the abuses from 1984 to 1995 have received promotions and
currently occupy senior positions in the Punjab
police. Their ongoing tenure and the impunity granted to almost all
perpetrators have created a system that continues to facilitate custodial
abuses, in particular illegal detention and torture.
[33]
The Indian government, the state government of Punjab, and
Punjab police have all denied the extent of systematic "disappearances,"
extrajudicial executions, and torture that occurred in Punjab
during the counterinsurgency, at most admitting to a few errant abuses. Some
officials privately justified the violations as necessary to combat the
insurgency.
For instance, in response to reports by the United Nations
(UN), the Indian Government has denied abuses committed during the
counterinsurgency. At the 50th session of the UN Human Rights Commission in
February 1994, Dr. Manmohan Singh, then India's finance minister, downplayed
widespread human rights abuses in India as "aberrations" that had occurred in
confronting terrorism.
[34]
In response to 95 communications sent by the UN Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions in 1992, the Indian government
replied that the police acted within their code of conduct, and that every
allegation of human rights abuse was "scrupulously investigated and most of
them were found inaccurate, highly exaggerated or deliberately false."
[35]
In response to allegations of "disappearances" submitted by the UN Working
Group on Enforced or Involuntary Disappearances in 1994, the Indian government
failed to acknowledge the systematic abuses and the judicial impunity protecting
police perpetrators. The Working Group summarized the government's response:
The Government denied the allegations that there may be
several thousand cases of disappearances in Punjab.
Scrupulous care had been taken to protect the rights of the individual under
due process of law. Habeas corpus was available to all under the Indian
judicial system in all circumstances. Wherever there was any suspicion of
police excesses, action was taken. In Punjab,
action had been taken against 210 police personnel. All cases of alleged
disappearance which were brought to the attention of police authorities were
investigated.
[36]
Human rights groups, however, have consistently reported on
the failure of the judicial system to address human rights abuses in Punjab.
[37]
During the counterinsurgency in Punjab,
the Indian government also rejected reports by international human rights
organizations on widespread abuses. In a letter issued to Amnesty International
that denied the group permission to visit Punjab, the Indian Embassy stated:
"The only turmoil in Punjab are the acts of
violence by terrorists who have been indiscriminate in their butchery of
innocents of all communities." The letter further stressed India's
sovereignty and its antipathy to foreign interference in its domestic affairs.
[38]
In response to the 1991 Asia Watch report
Punjab
in Crisis
, the Indian government denied the abuses, stating that it did not
tolerate any violations of the law.
[39]
Punjab government
institutions have equated human rights activists with terrorists and
consistently used the insurgency to justify their actions. In the Punjab mass
cremations case discussed below, the response of the Punjab police and
government of Punjab has been to portray demands
for a full accounting of abuses as negating the contributions of police in
fighting insurgency.
[40]
Submissions by the state of Punjab have
stressed the number of police killed in the insurgency.
[41]
In a 2002 application before the National Human Rights Commission, the state of
Punjab denied the abuses but also wrote:
The time frame under consideration of this Hon'ble
Commission was an extraordinary time. It was necessary to take all steps to
ensure that terrorists do not become role models for the impressionable youth
and that they are not glorified and eulogized.An added area of concern for the
State was to ensure that attempts of the invisible hand to ignite communal
tensions were promptly contained.
[42]
The Punjab police have also associated human rights
activists with Pakistan's
Inter-Services Intelligence [ISI] such as in this deposition which claimed:
[C]ertain non-governmental organizations working in the
area of preservation, promotion and sensitisation of the public to human rights
issues, have undertaken a sustained and well financed campaign of
disinformation to malign the image of the Punjab Police so that the low
intensity war of terrorism conceived, designed and fuelled by ISI continues
unabated.
[43]
In requesting the Supreme Court to rule in their favor, the Punjab police have attempted to gain sympathy by
referencing "the barrage of writ petitions" they are facing:
It is respectfully submitted that a large number of writ
petitions are being filed on bogus charges. Human rights activists are coaxing
people and even threatening them to file writ petitions by incorporating
concocted facts. Thus the police is unable to rivet its attention against the
terrorists in full measure.
[44]
KPS Gill, director general of police in Punjab
at the height of the abuses, has led the campaign against police
accountability. His writings and speeches have consistently referred to human
rights activists as terrorists or agents of Pakistan's ISI. He has further
equated terrorism with the filing of writ petitions. In "The Litigation Weapon
Against the Police and the State," he wrote:
Far more insidiously, however, at some time during the
course of the terrorist movement, the weapon of the writ petition was
discovered and deployed. A period followed thereafter, when both the
Kalashnikov and the writ petition were used in tandem. But elements unhappy
with the return of peace in the State advanced the litigation gun from its
status of a support weapon to an instrument of primary attack. By now, this
weapon had been upgraded from an inefficient single-shot gun to an automatic
rapid-fire implementation of war. The distortion and manipulation of the legal
process and the coordinated orchestration of the media that is being resorted
to by an utterly compromised 'human rights' lobby are an integral part of a
propaganda war aimed against peace and stability.
[45]
Gill has consistently denied the systematic aspect of the
abuses, at most admitting to aberrations and claiming that he has regularly
disciplined his subordinates.
[46]
Gill discusses these writ petitions as a threat to national security and a
strategy of "front organisations of the defeated terrorist movement."
[47]
He further blamed the alleged suicide of senior police officer Ajit Singh
Sandhu-responsible for Khalra's abduction, torture and murder-on human rights
activists:
Had this [writ petition] assault no motive other than justice,
one would merely say, 'Let the law take its own course.' But when it claimed
its first life, that of SSP Ajit Singh Sandhu, I was shaken by the success of
those who had failed so abjectly against us in open conflict. The war they lost
in the field had been resumed with vigour as a propaganda war. Through this
exaggerated barrage of petitions, these forces are pursuing a dual strategy to
immobilize and demoralize the police and to create among the people enjoying
the fruits of a hard-won peace a sense of oppression that the forces can
exploit to their perfidious ends.
[48]
In 1997, after SSP Sandhu's suicide, Gill wrote a letter to
Prime Minister IK Gujral, in which he described the legal cases proceeding
against SSP Sandhu and other policemen as "an unprecedented and unprincipled
inquisition," "a sustained and vicious campaign of calumny, of institutional
hostility and State indifference," and public interest litigation as "the most
convenient strategy for vendetta."
[49]
This refusal to acknowledge crimes committed by security
forces, and in fact, choosing instead to condemn the messenger, has only added
to the culture of impunity in India, where extrajudicial means to end
insurgencies or punish alleged terrorists have claimed numerous lives, many of
them innocent.
IV. International and Domestic
Legal Standards and Norms
We simply want justice and we want those people to be
punished
-Gurcharan Singh,
father of victim
An enforced disappearance occurs when officials affiliated
with the government arrest, detain, or abduct an individual, and then refuse to
acknowledge the deprivation of the individual's liberty or disclose his fate or
whereabouts.
[50]
The practices of "disappearances" and extrajudicial executions violate several
human rights, including the right to life, the right to liberty and security of
the person, the right to a fair and public trial, as well as the prohibition on
torture and cruel, inhuman, and degrading treatment or punishment. An enforced
disappearance is a continuing crime until the "disappearance" is resolved.
"Impunity" means the impossibility, in law or in fact, of
holding perpetrators accountable.
[51]
De facto impunity takes place when the state fails to prosecute human rights
abusers for lack of capacity or political will. De jure impunity occurs when
laws or regulations providing immunity or amnesty make it difficult or
impossible to prosecute a perpetrator for human rights abuses. Both forms of
impunity prevail in India
and effectively shield perpetrators from accountability, leading to more human
rights violations and undermining faith in the government and security forces.
[52]
The right to an effective remedy
To combat impunity, international law, including treaties to
which India is party,guarantee the
right to an effective remedy for victims of gross human rights violations,
including "disappearances," extrajudicial executions, and torture.
[53]
A victim's right to an effective
remedy obligates the state to take the necessary investigative, judicial, and
reparatory steps to redress the violation and address the victim's rights to
knowledge, justice, and reparations.
[54]
The state is under a continuing obligation to
provide an effective remedy; there is no time limit on legal action and the
right cannot be compromised even during a state of emergency.
[55]
International human rights standards provide that states
investigate allegations of human rights violations with a focus on identifying
perpetrators and holding them to account.
[56]
Every victim is entitled to information on the particular circumstances and
underlying causes leading to his victimization.
[57]
The Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions call upon states to remove officials
implicated in these crimes from direct or indirect power over the complainants
and witnesses, as well as those conducting the investigation.
[58]
In cases of enforced disappearance, the evidence necessary to establish
liability is often under the exclusive control of the state, which has an
incentive to conceal this evidence, and thus international human rights bodies
have held circumstantial, documentary, and testimonial evidence to be
admissible in their investigations of "disappearances."
[59]
States are obligated to bring
perpetrators of serious criminal offenses to justice.
[60]
This obligation is independent of the wishes
of victims, who for various reasons- including being subject to intimidation-may
not press for prosecutions.
[61]
Significantly, the UN Human Rights Committee in its comments to India's report
prepared under the International Covenant on Civil and Political Rights
(ICCPR), urged "that judicial inquiries be mandatory in all cases of death at
the hands of the security and armed forces and that the judges in such
inquiriesbe empowered to direct the prosecution of security and armed forces
personnel."
[62]
In no circumstances, including a state of war or public emergency, shall
immunity from prosecution be granted to alleged perpetrators of extra-judicial
executions.
[63]
The enforcement of judgments is also a crucial aspect of the right to an
effective remedy.
[64]
International law sets out various reparations
mechanisms.According to the Human
Rights Committee, the ICCPR:
requires that States Parties make reparation to individuals
whose Covenant rights have been violated. Without reparation to individuals
whose Covenant rights have been violated, the obligation to provide an
effective remedy, which is central to the efficacy of [enforcing the ICCPR] is
not discharged. [T]he Covenant generally entails appropriate compensation.
[W]here appropriate, reparation can involve restitution, rehabilitation and
measures of satisfaction, such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices, as
well as bringing to justice the perpetrators of human rights violations.
[65]
Superior responsibility
Combating impunity requires the identification of the
specific perpetrators of the violations. The doctrine of superior
responsibility imposes liability on superiors-with either de jure or de facto
command-for the unlawful acts of their subordinates, where the superior knew or
had reason to know of the unlawful acts, and failed to prevent and/or punish
those acts.
[66]
The doctrine of superior responsibility is well-established and is part of
customary international law.
[67]
A superior possesses the requisite culpable mental state for
the imposition of criminal liability when he has actual knowledge or "reason to
know" that his subordinates were committing crimes.
[68]
A superior's actual knowledge is "established through direct or circumstantial
evidence."
[69]
The second type of knowledge-"had reason to know"-requires the superior to
remain informed about the activities of his subordinates; he cannot willfully
blind himself.
[70]
The superior can be liable if he possessed any information that should have put
him on notice of crimes committed or about to be committed by his subordinates.
Although the superior cannot be expected to "perform the impossible," he would
be held criminally liable for failing to take actions within his "material
possibility." The lack of formal legal competence does not preclude
responsibility.
[71]
Indian law
International law not
inconsistent with municipal law is part of India's law.
[72]
The Supreme Court has repeatedly stressed the respect given to the
national implementation of international law, and the need to accommodate
international law "even without express legislative sanction."
[73]
Moreover, the Supreme Court has held that international law can be
incorporated into the fundamental rights under the Indian Constitution.
[74]
Thus, the standards of international human rights law, including the right to
an effective remedy in cases of "disappearances" and extrajudicial executions,
are part of the fundamental rights protected by the Indian Constitution.
When fundamental rights are at
stake, Article 32 of the Indian Constitution gives the Supreme Court the power
to forge new remedies and fashion new strategies designed to enforce these
rights.
[75]
Its power is both injunctive and remedial.
[76]
For example, in addition to awarding compensation for illegal detention, the
Supreme Court has issued detailed mandatory directions that all law enforcement
officials must comply with when they arrest or detain any person.
[77]
These requirements were issued to supplement constitutional and statutory
safeguards. The court has also established guidelines and norms not addressed
in existing legislation.
[78]
In creating commissions, the Supreme Court has stressed that the proceedings
must be appropriate not in terms of any specific form, but in reference to the
purpose to enforce fundamental rights.
[79]
The commission can even diverge from the adversarial procedure
[80]
to allow for a procedure more sensitive to victims' rights in situations of
reparation for gross human rights violations. The court also has the power to
issue directions to the state, including the taking of positive action such as
augmenting the investigative machinery and setting up new courts in order to
ensure a speedy trial.
[81]
All of the individuals interviewed for this report deplored
the lack of an effective remedy for "disappearances" and extrajudicial
executions by the Punjab police. They
repeatedly stressed that the Indian government's offers of compensation did not
equal justice. Many viewed the offer of money, in the absence of justice, as an
effort to buy their silence. For the family members of victims, justice
includes establishing the truth of what happened to their loved ones and
holding perpetrators accountable for their crimes.
V. Failure of Justice
He was just a boy.I
want to know what they did with him.
-Darshan Kaur, mother of victim
The cases detailed in this chapter highlight different aspects
of the impunity that has prevailed since the Punjab
counterinsurgency operations from 1984 to 1995. These cases reflect the failure
of various government institutions including the police, the judiciary, the
Central Bureau of Investigation, and the National Human Rights Commission to
ensure accountability and redress for gross human rights violations.
Many observers had hoped that
the Punjab mass cremations case described in
detail immediately below would redress the systematic "disappearances" and extrajudicial
executions perpetrated by Indian security forces. After 11 years of proceedings
that have excluded victim participation, relied solely on police admissions,
failed to identify responsible officials, and offered only limited compensation
to a small subset of victims' families, many victims' families now feel the
government condones the abuses and the denial of justice.
Another case detailed below, that of murdered human rights
defender Jaswant Singh Khalra, demonstrates the hurdles families face in
pursuing individual cases, as well as the government's reluctance to pursue
investigations and charges against the alleged architects of these systematic
abuses. This case, and the others we discuss in this chapter, highlights biases
within the prosecuting authority, the challenges brought on by prolonged
trials, the police's role in the destruction of evidence and fabrication of
records, and police intimidation and abuses suffered by survivors of those
killed by the police.
In each case, the families continue to call for justice for
the "disappearance" or extrajudicial execution of their loved one. These
families have stated that they cannot move forward in their lives without
knowledge, justice, and reparations.
A. NHRC and the
Punjab
mass cremations case
Human rights groups have
uncovered basic facts of the gross human rights violations perpetrated by
Indian security forces in Punjab during the
counterinsurgency, including details of the destruction of evidence through
thousands of secret cremations. In 1996, after reviewing evidence of mass
cremations, the Supreme Court appointed the National Human Rights Commission
(NHRC) to address these violations.
During the past decade of the proceedings before the NHRC,
the Commission has failed to apply Indian or international human rights
standards to investigate and provide proper reparations for these abuses. Although
the NHRC has failed to provide a remedy for these abuses, because the Supreme
Court retains jurisdiction in this case and will review the NHRC's actions, it
will provide the ultimate resolution of the mass cremations case that will set a
precedent in India
on redressing mass state crimes.
In 1995, after human rights activist Jaswant Singh Khalra
released official records exposing the mass secret cremations perpetrated by
the Punjab police in Amritsar district, the
Committee for Information and Initiative on Punjab (CIIP) moved the Supreme
Court to demand a comprehensive inquiry into extrajudicial executions
throughout Punjab.
[82]
After Punjab police "disappeared" Jaswant Singh Khalra, the Supreme Court
eventually ordered the Central Bureau of Investigation (CBI), India's premier investigative
agency, to investigate these crimes.
[83]
The CBI submitted its final report on December 9, 1996,
[84]
limiting its investigations to Amritsar
district. The CBI's report, which the Supreme Court sealed, listed 2,097
illegal cremations at three cremation grounds of Amritsar
district-then one of 13 districts in Punjab.
[85]
Khalra himself, however, had discussed over 6,000 cremations in Amritsar district.
[86]
Moreover, CIIP had stated in its original writ petition that interviews with
cremation ground workers disclosed that multiple people were often cremated
with the firewood normally required for completely burning one body.
[87]
Thus, many more than 2,097 bodies could have been cremated.
In December 1996, the Supreme Court referred the mass
cremations case to the National Human Rights Commission (NHRC or "Commission"),
observing that the CBI's inquiry report disclosed a "flagrant violation of
human rights on a mass scale." In this case, the Supreme Court appointed the
NHRC as its
sui generis
body, with
the extraordinary powers of the Supreme Court under Article 32 of the Indian
Constitution to redress fundamental human rights violations. The Supreme Court
requested the NHRC "to have the matter examined in accordance with law and
determine all the issues which are raised before the Commission by the learned
counsel for the parties," and also ordered that any compensation awarded by the
NHRC would be "binding and payable."
[88]
Thus, the NHRC had the powers to forge new remedies and fashion new strategies
to enforce fundamental human rights.
[89]
The Supreme Court also entrusted the CBI with investigations
into the culpability of police officials in the secret cremations case,
[90]
leaving "all the issues which are raised before the Commission" to the
NHRC.
[91]
Unfortunately, throughout the
decade-long proceedings, the NHRC ignored the fundamental rights violations
that had occurred in Punjab and thus shielded
perpetrators from accountability. It refused to allow a single victim family to
testify and failed to conduct any independent investigations towards
identifying responsible officers. Instead, the NHRC based its findings on
information provided by the Punjab police, the
perpetrators of the crimes. Furthermore, the Commission refused to consider
mass cremations, extrajudicial executions, and "disappearances" throughout the
rest of Punjab. Despite having wide powers
under Article 32, the NHRC's actions were restrictive even when compared to
steps it has taken in other cases under its normal limited powers. For example,
the NHRC has often sent its own investigatory teams
sua sponte
to examine violations based on news reports, and has
even filed lawsuits to challenge judgments and request the transfer of trials
relating to the Gujarat pogroms.
[92]
In its over ten years of proceedings in the Punjab mass
cremations case, the NHRC compensated the next of kin of 1,051 individuals for
the wrongful cremation of their loved ones, where the Punjab police did not
follow the rules for proper cremations, and 194 individuals for the violation
of the right to life, where the Punjab police admitted custody prior to death
but did not admit liability for the unlawful killing.
In October 2006, the NHRC
appointed retired Punjab and Haryana High Court Justice K.S. Bhalla as a
commissioner for conducting an inquiry in Amritsar
("Bhalla Commission" or "Amritsar Commission of Inquiry") to identify the
remaining cremation victims from the CBI list under its consideration, if
possible, within eight months.
[93]
From 1997 to 1999, the Punjab
mass cremations litigation stalled over the powers of the NHRC to adjudicate
the case. The main question was whether the Commission possessed the Supreme
Court's powers under Article 32 of the Constitution, or if the Commission was
bound by the act that created it, the Protection of Human Rights Act, 1993
(PHRA).
[94]
The PHRA limits the Commission's oversight in its regular operations to violations
that occurred within a year of the filing of the complaint, grants only
recommendatory powers to the NHRC, and prevents it from investigating abuses by
armed forces, among other restrictions.
[95]
In August 1997, the NHRC stated that it possessed the court's Article 32 powers
in this case, quoting a key Supreme Court case on Article 32:
We have therefore to abandon the laissez faire approach in
the judicial process particularly where it involves a question of enforcement
of fundamental rights and forge new tools, devise new methods and adopt new
strategies for the purpose of making fundamental rights meaningful for the
large masses of people...
It is for this reason that the Supreme Court has evolved
the practice of appointing commissions for the purpose of gathering facts and
data in regard to a complaint of breach of a fundamental right.
[96]
That same day, the NHRC issued a second order on
proceedings, proposing the invitation of claims by public notice and inquiries
"to ascertain whether the deaths and subsequent cremations or both were the
results of acts which constituted violation of human rights or constituted
negligence on the part of the State and its authorities."
[97]
The Union of India litigated the NHRC's powers back to the Supreme Court,
challenging its jurisdiction over the mass cremations case.
[98]
In 1998, the Supreme Court held that in the Punjab
mass cremations case, the NHRC possessed the court's Article 32 powers, the
NHRC was not limited by the Protection of Human Rights Act, and the Supreme
Court retained final jurisdiction over the case.
[99]
Although this order meant that the NHRC was fully equipped
to investigate the widespread and systematic human rights abuses that had
occurred throughout Punjab because it possessed the extraordinary powers of
Article 32, in January 1999, the NHRC pronounced an order on the scope of its
inquiry, limiting itself to the 2,097 cremations stated by the CBI to have
occurred in three crematoria in Amritsar district, and divided the cremations
into three lists of identified, partially identified, and unidentified
cremations.
[100]
The limited mandate meant the NHRC would only consider victims of unlawful
killings whose bodies were: (1) disposed of through cremation, and not other
methods; (2) cremated in one of the three crematoria investigated by the CBI in
one of then 13 districts in Punjab; (3) cremated between 1984 and 1994; and (4)
included in the CBI's list of 2,097 cremations.
The CIIP challenged this restriction several times before
the NHRC and ultimately to the Supreme Court.
[101]
The NHRC insisted on its limited mandate and the Supreme Court refused to
intervene at that stage.
[102]
The NHRC thus ignored its Article 32 powers in this case.
[103]
Throughout the entire proceedings, the NHRC refused to
investigate a single case of illegal cremation.
[104]
It relied solely on the accused-the Punjab
police-to provide or confirm identification information on victims of illegal
cremations. Even in cases where CIIP submitted identification information on
partially identified or unidentified cremations, which it had derived by
correlating the information available on the death with its database of
"disappearances" and extrajudicial executions, the NHRC accepted the
identification only if it was confirmed by the Punjab police.
[105]
Only in one case did the NHRC reject the police version of events based on
inconsistencies between an affidavit by the Punjab police and a petition filed
by the state of Punjab concerning the same
cremation.
[106]
The NHRC also relied on the police to determine the type of
violations. Only where the police were willing to admit custody of the victim
prior to his or her death, did the Commission find a violation of the right to
life based on the principle of strict liability.
[107]
The Punjab police never admitted to direct
liability or responsibility for violating anyone's rights, including victims'
right to life or liberty, and continued to maintain that the victims were
mainly terrorists or criminals killed in cross-fire.
[108]
The NHRC identified 194 such cases out of the list of 2,097 cremations.
[109]
Where the police denied they had prior custody of the victim
but acknowledged that they had illegally cremated the person-in 1,051 cases-the
NHRC found that the dignity of the dead had been violated.
[110]
In determining the violation of the dignity of the dead, the NHRC relied
primarily on the solicitor general's admission that the Punjab
police had not followed the rules for cremating unidentified bodies.
[111]
Of the original lists drawn up by the CBI, 814 cremation victims remained unidentified,
and an additional 38 cases were excluded as duplicates identified by the state
of Punjab.
[112]
These victims were passed to the Amritsar Commission of Inquiry for
identification by the NHRC's October 9, 2006 order.
[113]
The Bhalla Commission subsequently reduced this list to 800 cremations, based
on submissions by the Punjab police.
In no case did the NHRC accept testimony from family members
or witnesses, despite the drastically differing accounts put forward by the
families and the accused. Nor did the NHRC accept challenges to the police
version of events, based on victim testimony.
[114]
It relied on the Punjab police for the identifications despite several
troubling indications of lack of trustworthiness and impartiality, not
surprising considering that the Punjab police
was investigating its own colleagues. The NHRC itself found a serious lapse by
the Punjab police for obviously concealing
information at the time of cremation, and only revealing that information years
later in litigation-as evidenced by their subsequent ability to identify 663
victims of illegal cremations during the proceedings before the NHRC.
[115]
The NHRC failed to challenge the police version of events
despite police admissions of forging the identities of its cremation victims. In
February 2006, Punjab state officials admitted that the Punjab
police had forged the identities of cremation victims in order to protect over
300 police informants living under assumed identities.
[116]
The informants were alleged to have been killed in police encounters and
cremated as unidentified bodies. However, these informants were given new
identities and innocent individuals were killed and cremated in their place.
This admission means that the true identities of the cremation victims cannot
be established until the Punjab police reveals
the identities of the victims killed and cremated in lieu of the informants.
[117]
The CIIP demonstrated to the NHRC that the Punjab
police had fabricated at least one identification when the next of kin of the
decedent admitted to Ensaaf that his father, the alleged secret cremation
victim, a former police officer, had died of natural causes at home. A police
contact, offering compensation, encouraged him to agree to having his father
identified as a victim of a secret cremation.
[118]
When the CIIP presented this information at a February 2007 hearing of the
NHRC, after some argument, the Chairperson instructed the state, which had
submitted the incorrect identification, to re-investigate only that
identification.
[119]
At the subsequent hearing, the state submitted that it had made a mistake in
the identification.
[120]
The NHRC has not yet pronounced a ruling on this issue.
Throughout the proceedings, the NHRC has failed to
investigate the illegality of individual killings, the role of state security
forces or their agents in planning or carrying out illegal killings, other
rights violations suffered by family members, or the identities of individual
perpetrators, among other issues. Instead, in its orders granting compensation,
the NHRC repeatedly stated that it was not expressing any opinion regarding
culpability or responsibility for even the limited rights violations that it
had identified.
[121]
The NHRC maintained that it did not want to prejudice the investigations being
carried out by the CBI.
[122]
While the NHRC was not specifically instructed to establish criminal liability,
under its Article 32 mandate, it was empowered to conduct detailed
investigations capable of establishing the rights violations perpetrated as
well as the identity of the responsible officials. In fact, in its August 1997
order, the NHRC had held that it would award compensation "only after the
factual foundations are laid establishing liability."
[123]
The NHRC acted without regard for individual liability with
its August 2000 order on 88 claims. In its submissions before the NHRC, the
state of Punjab proposed awarding compensation
to only 18 of the 88 claimants, with no admission of liability or guilt. The
NHRC endorsed the proposal by the state:
For this conclusion it does not matter whether the custody
was lawful or unlawful or the exercise of power of control over the person was
justified or not, and it is not necessary even to identify the individual
officer or officers responsible/concerned.
[124]
All of the families submitted
affidavits through CIIP rejecting any proposed compensation, stating that
arbitrary cash doles did not meet their expectations of justice.
[125]
The NHRC has used the principle of strict liability to
attribute liability to the state, ignoring the individual actors. Thus, based
on the principle of strict liability rather than any findings of wrongdoing by
specific officials, the state was ordered to pay compensation to 194
individuals for violating their right to life, and to 1,051 individuals for
violating the dignity of the dead.
[126]
The use of strict liability resulted in the preclusion of investigations, where
the establishment of direct liability was possible. For example, in many cases,
the records of the cremation grounds identified the police station and officer
who deposited the body for cremation. Thus, the perpetrators of the illegal
cremation were identifiable and the Commission should have held them directly
liable. However, the NHRC's application of strict liability with the total
exclusion of direct liability, combined with the ineffectiveness of CBI
prosecutions, has resulted in de facto impunity for the perpetrators.
Developing a comprehensive reparations policy requires
extensive investigation to clarify the extent of human rights violations, the
potential beneficiaries, and the nature of injuries suffered, among other
issues. International law identifies various methods of reparations, as
discussed above. The NHRC has not come close to meeting this standard. Instead
it has offered an arbitrarily determined amount of money only to a
small
subset of victims' families
. Given the NHRC's failures to establish
what happened to their loved ones or to identify the security officers
responsible for abuses, many families who have been offered compensation,
moreover, have perceived the offer as an attempt to buy their silence.
[127]
In its first major compensation order in November 2004, the
NHRC quoted Supreme Court precedentwhich
stated that the amount of compensation depended on the facts of each case.
[128]
The NHRC asserted, "Indeed, the quantum of compensation depends upon the
circumstance of each case and there is no rule of thumb which can be applied to
all cases nor even a universally applicable formula." This reiterated a holding
from the NHRC's August 1997 order where it stated, "Indeed the question of
quantification of compensation will arrise [sic] only after the factual
foundations are laid establishing liability and, only thereafter, the questions
of quantification follow."
[129]
Notwithstanding this precedent, the NHRC proceeded to award the same lump sum
in every case in which the Punjab police
admitted having had custody of the victim prior to the cremation.
[130]
It subsequently defined "factual foundations" to mean the violation of the
dignity of the dead as a result of the unlawful cremation, not the "manner and
method of killing."
[131]
Thus, in over 10 years of proceedings, the Commission was not able to establish
any new factual foundations; the fact of illegal cremation had been established
by the CBI and Supreme Court in 1996.
CIIP solicited the intervention of international human
rights groups to demonstrate the need to investigate the violations of the
right to life and the physical and psychological trauma suffered by victims'
family members. Without such an understanding, the NHRC would not be able to
develop or provide meaningful reparations. During a ten-day evaluation of 127
families in May 2005, organized by Ensaaf, experts of the Physicians for Human
Rights (PHR) and the Bellevue/NYU Program for Survivors of Torture (Bellevue)
assessed the torture and trauma suffered by families of some of the
"disappeared" and extrajudicially executed persons, whose cases were part of
the Punjab mass cremations case before the NHRC. The expert report submitted at
the NHRC hearing on October 24, 2005, demonstrated that the deprivation of life
occurred within a pattern of violations that included intentional abuse of
multiple family members of the "disappeared" or extrajudicially executed
person. The PHR/Bellevue evaluation found alarming rates of current and past
psychological and physical suffering among the family members.
[132]
The CIIP called on the Commission to summon the authors of the report to
testify.
[133]
The Commission rejected the report and attacked the authors'
professional credibility.
[134]
The Commission did not attempt to resolve any of the objections it discussed in
its order, in writing or at the multiple hearings that occurred between the
report's submission in October 2005 and the order issued regarding the report
in October 2006. PHR and Bellevue
responded to the NHRC's order with an open letter in December 2006.
[135]
In its last major order on October 9, 2006, the NHRC
dismissed CIIP's arguments regarding the development of a comprehensive
reparations program. The NHRC stated that it was sure the state of Punjab was fulfilling its obligations, and the NHRC did
not feel compelled to make an order:
[T]he Learned Solicitor General stated that the State of
Punjab had been taking all such steps as are necessary to heal the wounds of
the effected families.It is an obligation of every civilized State to ensure
that its acts, which have been found to be violative of humanitarian laws
and/or which impinge upon human rights of the citizens, do not reoccur. We have
no doubt that the State of Punjab
as well as the Union of India are alive to their obligations in this behalf and
would take appropriate steps which would also restore institutional integrity.
We have also no doubt that the State of Punjab
would offer medical/psychological assistance to a member/members of any such
family which has suffered as a result of the tragedy, who approaches it, at
State expense so that the healing process started by it becomes meaningful. In
view of the statement of the learned Solicitor General no further directions in
that behalf are as such necessary to be issued by the Commission.
[136]
The Commission thus left the development of reparations to
the goodwill of Punjab, which has not only consistently denied the rights
violations and refused to accept responsibility throughout the proceedings, but
has also failed to take any reparative steps to heal the wounds of the
families.
We provide some examples below where the NHRC's
interpretation of its mandate has left out individuals who suffered violations
of the rights to life and liberty. By limiting its mandate to these 2,097
cremations, the NHRC has excluded:
Victims of "disappearances" by Indian security
forces, where the families have no knowledge of the victim's ultimate fate;
Victims of unlawful killings whose bodies were
dumped in bodies of water, dismembered and dispersed, or disposed of through
other methods;
Victims of unlawful killings whom the Punjab
police illegally cremated in other districts of Punjab;
Victims of unlawful killings whom the Punjab
police illegally cremated prior to 1984 and after 1994 in the three crematoria
at issue in Amritsar
district;
Victims of unlawful killings whom the Punjab
police illegally cremated, but who were not included in the CBI's list of 2097
cremations, including those cremated at other cremation grounds in Amritsar
district; and
Victims of other human rights violations, such
as custodial torture and illegal detention.
The case of Jugraj Singh, son of Mohinder Singh
Click to expand Image
This case illustrates the exclusion
of cases of individuals cremated in Amritsar
after 1994, and therefore outside the NHRC's limited mandate. Jugraj Singh was
abducted from Ropar district, but killed and cremated in Amritsar district in January 1995. (This case
is discussed in detail later in this chapter to illustrate the failure of the
courts in addressing extrajudicial executions.)
On January
14, 1995, 27-year-old Jugraj Singh, a taxi driver, was driving his Maruti van
towards the market of Phase III B-2 Mohali, Ropar, to get his vehicle repaired.
As he proceeded, individuals in civilian clothes signaled him to stop. An
eyewitness later told Mohinder Singh, Jugraj Singh's father, that the
individuals who stopped the van had been waiting for a while and had come to
the market in a Maruti car with registration No. PCO-42.When Jugraj stopped his vehicle, these
individuals forcibly entered his van and had him drive away.
The next
day, Mohinder Singh went to the police station to register a complaint, stating
that people had witnessed his son's abduction by the police. The day after, he
visited the market and spoke to the owner of the shop next to the mechanic's
shop. This man confirmed that he had seen Jugraj in a van with police, and that
the police had also abducted Sukhdev Singh from his shop.
[137]
The police
reported that Jugraj Singh was killed on January 15, 1995, in Amritsar in what they claimed was an armed
encounter. Considering that eyewitnesses saw Jugraj Singh being abducted by the
police, his father Mohinder Singh believes he was killed in a faked encounter.
[138]
According to a CBI inquiry, officials of the Municipal Corporation in Amritsar cremated his
body.
[139]
Because his son was killed one month after the time boundary fixed by the
Supreme Court and the NHRC, Jugraj Singh has been excluded from the Punjab mass cremations case.
The
case of Charrat Singh and Rashpal Singh, sons of Gurbachan Singh
Click to expand Image
On November 17, 1988, Gurbachan Singh's youngest son Rashpal Singh, about
15 or 16 years old, was traveling on a bus to visit his maternal family, when Punjab police stopped the bus and removed Rashpal and
another youth. That same day, the newspapers reported that the police killed
five persons in an alleged encounter. Gurbachan Singh learned that those five
persons were cremated at Durgiana Mandir cremation ground in Amritsar-one of the cremation grounds
investigated by the CBI. After speaking to employees there, Gurbachan Singh
believes that his son was one of the individuals cremated because his son
matched the physical description of a victim. His cremation, however, does not
appear on the CBI list, and has thus been excluded from the Punjab
mass cremations case by the NHRC's limited mandate.
On June 18,
1989, between 4 and 5 p.m., approximately 100 security personnel from the Punjab
police, Criminal Investigation Agency (CIA) Staff, and Central Reserve Police
Force (CRPF) raided Gurbachan Singh's village Johal Raju Singh in Tarn Taran, Punjab. Gurbachan Singh told Ensaaf:
The security forces proceeded to my residence and then my
fields, where my son Charrat Singh and I were working. The Punjab
police grabbed Charrat Singh and me, brought us to the small tube-well by the
village, and began to savagely beat my son with their rifle butts. They drove
away with me and my son, but dropped me off on the way, and that was the last
time I saw him. The security forces took my son to CIA Staff, Tarn Taran. Many
folks from the village accompanied me to CIA Staff, where we asked to see my
son and requested his release, but the police refused.
[140]
Click to expand Image
On June 24, 1989, the Punjabi daily
Ajit reported that unidentified persons had been killed in an encounter. A few
days later, Gurbachan Singh and his family went to Police Station Tarn Taran
(Sadar) to verify the news of the killing:
At the police station, we spoke with the clerk, who showed us
a pile of clothes, and asked if we recognized any of them. Among the articles
of clothing, we recognized the
parna
(small turban) worn by Charrat Singh on the day the security forces abducted
him. We were allowed to view Charrat Singh's
parna
, but the clerk did not allow us to take it with us.
[141]
Gurbachan
Singh did not receive the bodies of either of his "disappeared" sons, nor was
he informed of their cremations, but he believes them both to have been killed
by the Punjab police.
In response
to the November 2006 notice issued by the Amritsar Commission of Inquiry,
Gurbachan Singh submitted claims regarding both his sons. His claim for Rashpal
Singh was never considered because Rashpal Singh's cremation did not appear on
the CBI list.
Justice
Bhalla eventually allowed Gurbachan Singh to submit information on Charrat
Singh's death because Charrat Singh's cremation matched an unidentified
cremation on the CBI list of 814 remaining unidentified cremations. The Punjab police, however, rejected the identification of
Charrat Singh.
[142]
Justice Bhalla confirmed the police's rejection of the identification, stating
that Gurbachan Singh's affidavit was not sufficient because Gurbachan Singh
himself did not see Charrat Singh's dead body. Justice Bhalla did not mention
Gurbachan Singh's identification of Charrat Singh's belongings in police
custody .
[143]
The unlawful
killings of Gurbachan Singh's two sons highlight the disparate remedies
available because of arbitrary distinctions resulting from the NHRC's limited
mandate and failure to investigate cases.
The
case of Mehal Singh and Gurmail Singh, sons of Dara Singh
Click to expand Image
Dara Singh lost two of his four sons to extrajudicial killings: his
youngest son Mehal Singh, aged 16, and his oldest son Gurmail Singh, aged 37.
[144]
The NHRC did not acknowledge Dara Singh's submission regarding Gurmail Singh
because its limited mandate excluded cremations outside of Amritsar.In August 2000, the State of Punjab
found 18 cases eligible for compensation with no admission
of liability
or wrongdoing, including that of Mehal Singh. Dara Singh rejected this
compensation. Despite the fact that the individuals in these cases had been
fully identified, the case of his son later reappeared on the unidentified
list.
[145]
The Punjab police now denies that Mehal
Singh's body was ever identified.
[146]
The Bhalla Commission has also rejected the identification of Mehal Singh's
remains, because his father did not see his dead body and the doctor who
conducted the post mortem and confirmed his son's identity did not depose
before the Commission.
[147]
Dara Singh
told Ensaaf:
My
youngest son Mehal Singh was an apprentice at a tractor repair workshop in Tarn
Taran. On the night of June 17 to 18, 1989, [names of police officers
withheld] from Tarn Taran (Sadar)
police station led a heavy police force including the Punjab
police and the CRPF, in raiding my house. It was after midnight when they came.
Click to expand Image
The
security forces began beating me and my sons. They tied our hands behind our
backs and lined us up facing a wall in the courtyard and threatened to execute
us right then. The security forces thoroughly searched the house, and stole
several valuable items, but did not recover anything incriminating.
[148]
They
then detained us at the police station for two hours and continued beating us,
especially Mehal Singh. [Names of two police officers withheld] started
torturing Mehal Singh. Around 5 a.m., they transferred all of us to the CIA
Staff Interrogation Centre in Tarn Taran. There again, they segregated Mehal
Singh and tortured him under the supervision of [name of third police officer
withheld]. The rest of us were seated on the floor outside of the cell where
they were torturing him, and we could hear his shrieks from the torture. Later
that day, they transferred all of us, except Mehal Singh, to the Tarn Taran
Sadar police station. They detained us for two days and interrogated us about
weapons and threatened to kill us.
[149]
The police
officers released all of them, except Mehal Singh, on June 19, 1989. Dara Singh
said he then immediately collected many respectable people from his area and
went to CIA Staff Tarn Taran to inquire about Mehal Singh. Gurbachan Singh of
village Johal Raju Singh, whose testimony is cited above, joined the delegation
since his son Charrat Singh had also been abducted by the Tarn Taran police.
But the station house officer denied custody of Mehal Singh and Charrat Singh.
Dara Singh told Ensaaf:
Every
day thereafter, I waited by the butcher shop [referring to CIA Staff Tarn
Taran] to see if they would release my son. On June 24, by chance, I was by the
entrance to the civil hospital where they conduct post mortems. There, I saw a
tractor-trolley parked, and I guessed that there were bodies in the trolley. I
went towards the trolley and attempted to climb in to see if my son was inside,
but a policeman, who was sitting in the passenger's seat,
warned me not to get in. The trolley
took off a few moments later. I followed the trolley, [walking] to the cremation
ground by myself, which took about an hour.
At the cremation ground, I met one of
the workers. He said that the police had just dropped off two bodies for
cremation, and pointed to where they were being cremated. There were several
other bodies being cremated in a line. I went to the cremations he
indicated.
wasn't certain that the bodies were Mehal Singh and Charrat Singh, so I
continued to try to find out what happened to them.
[150]
About 8 to
10 days later, Dara Singh and a colleague who knew the doctor who performed
post mortems at the civil hospital, went and spoke to the doctor. The doctor
told him that he had conducted post mortems on two youth who fit the
description of Mehal Singh and Gurbachan Singh's son Charrat Singh. The doctor
further described the clothes the boys were wearing. Dara Singh told Ensaaf:
We hired an attorney and obtained an order from a judge in
Tarn Taran directing the police to show us the clothes in their possession. We
took the order to Tarn Taran (Sadar) Police Station and spoke with the SHO. He
said that we should perform our religious rites for the dead for Mehal Singh
and Charrat Singh. We took this to mean that they were dead.
[151]
The police
continued to harass Dara Singh and his family, detaining them two to three more
times. They wanted the family to produce Gurmail Singh, Dara Singh's eldest
son:
In the
second week of June 1990, Gurmail Singh joined a Kar Sewa group renovating a
gurdwara at village Gharam in Patiala
district on the Punjab-Haryana border. Ten or 12 days later, a group of police
officers from Ambala district in Haryana came to our village and made inquiries
about the identity of Gurmail Singh, who, according to a newspaper report, had
been killed in an encounter along with four other militants. The newspaper
report did not mention my son's name, but called him an unidentified militant.
However, I recognized my son's photograph that was published in the article.
Fearing further reprisals against my remaining sons, I
Click to expand Image
didn't pursue the matter. The
families of the other encounter victims told us that the youth had been
cremated in Ambala, the place of the encounter.
[152]
In 1999,
Dara Singh responded to the NHRC's notice for claims regarding mass cremations.
He submitted claims on behalf of Mehal Singh and Gurmail Singh. The NHRC
decided that the family was eligible to receive compensation for the wrongful
cremation of Mehal Singh, but Dara Singh rejected the compensation:
[153]
Money
is not justice. The police murdered both of my sons, and they won't even admit
that they did something wrong. They call my sons terrorists! The police are the
terrorists.. The government should also give us copies of their records
relating to the murder of my sons, so we can figure out what really happened.
[154]
In its October 9, 2006 order, which effectively closed all
of the major issues dealing with the matter of police abductions leading to
"disappearances" and secret cremations in Punjab, the NHRC appointed a
commissioner of inquiry in Amritsar, retired High Court Judge K.S. Bhalla, to
identify as many as possible of the remaining 814 cremation victims from the
CBI list within eight months. The number of unidentified cremations was
subsequently revised to 800.
[155]
After its appointment, the Bhalla Commission and NHRC held
ex parte meetings, excluding the petitioner CIIP.
[156]
As a result, the NHRC issued an order on October 30, 2006, that limited
participation in the Bhalla Commission proceedings to those families who were
among the 1,857 families who had submitted claims in response to NHRC public
notices issued in 1999 and 2004. The NHRC also restricted all 1,857 claimants
from participating in the proceedings by requiring the claimants to resubmit
their claims in response to a public notice issued in November 2006.
[157]
The end result was that only 70 of 1,857 claimants were eligible to participate
in the Bhalla Commission proceedings.
[158]
In its October 30, 2006 order, the NHRC did not provide any rationale or legal
justification for narrowing participation in the Bhalla Commission through such
a procedure.
The NHRC limited Justice Bhalla's mandate to identifying the
remaining illegal cremations, but placed no further restrictions. However,
Justice Bhalla demonstrated little interest in the underlying facts. In his
February 3, 2007 order, he explicitly stated that human rights violations by
the police did not fall within his scope of inquiry.
[159]
Further, at the April 10, 2007 hearing, Justice Bhalla stated:
Naturally, if the police had known the identity of the
individuals, they would have turned over their bodies to the families. What
interest would they have in keeping the bodies?
[160]
This comment reflected Justice Bhalla's dismissal of the
contention that the police purposely covered up the identities of the
individuals and destroyed their bodies in order to eliminate significant
forensic evidence of torture and custodial death.
Justice Bhalla continued the NHRC practice of relying on the
Punjab police for identifications or
confirmations of victims of illegal cremations, instead of developing an
independent methodology or conducting his own investigations.
While CIIP and other petitioners submitted identification
information to Justice Bhalla, he waited for confirmation from the Punjab police. If the Punjab
police rejected the identification, Justice Bhalla placed insurmountable
evidentiary burdens on the petitioners, requiring them to produce evidence of
the dead body or cremation.
These
women, whose family members were "disappeared" or extrajudicially executed by
the Punjab police, regularly attended hearings of the Bhalla Commission in Amritsar but did not
receive an opportunity to testify because they were excluded by the
Commission's arbitrary procedures.
2007 Ensaaf
At the initial hearings, through written and oral argument,
the CIIP urged the Commission to adopt a rigorous methodology to resolve the
unidentified cremations, and require the State to produce police records, post
mortem reports, habeas corpus petitions, and news reports on abductions,
"disappearances" and encounters. The CIIP also urged the Commission to solicit
claims from throughout Punjab and allow all
prior and new claimants to participate in the proceedings. The Bhalla
Commission rejected these arguments at the February 3, 2007 hearing.
[161]
Justice Bhalla further restricted the access of relatives to
the commission, stating that victim families could not submit claims directly
to the Commission, although they could provide information for the limited
purpose of identification through CIIP or other petitioners. He did not explain
how families excluded by the October 2006 NHRC order and November 2006 notice
would know that they had this limited option. It was clear, however, that
Justice Bhalla would not allow these families to testify.
The NHRC and Bhalla Commissions never acknowledged the
possibility that the remaining 800 unidentified bodies could not be identified
from the pool of 1,857 prior claims, and that a more inclusive process of
participation was required if the Commissions were serious about establishing
the identities of all 800 victims. At least 10 percent of the victims
previously identified by the NHRC as having been secretly cremated in Amritsar lived outside of Amritsar district.
[162]
The CIIP repeatedly suggested issuing a public notice throughout Punjab,
inviting all victim families who believed their relatives may have been
cremated in Amritsar
to submit claims; these suggestions were rejected by the Bhalla Commission.
[163]
The Bhalla Commission held its last hearing on June 29,
2007, and presumably submitted its final report to the NHRC. This report,
according to the NHRC's October 30, 2006 order, was due on June 30, 2007. The
petitioners have not yet received a copy of the report. The NHRC initially
scheduled a hearing for August 2007, but has postponed the hearing three times.
[164]
B. CBI failure to investigate extrajudicial
killings
The Supreme Court had entrusted the CBI with investigations
into the culpability of police officials in the secret cremations case.
[165]
The CBI was ordered to submit quarterly confidential progress reports.
[166]
Over 10 years later, the petitioners have no information regarding
whether there have been any prosecutions.
In a July 1996 order, the Supreme Court ordered the CBI to
register three cases-those which had specifically been mentioned in Jaswant
Singh Khalra's press release regarding his investigations: Pargat Singh
"Bullet," Piyara Singh, and Baghel Singh.
[167]
The Punjab police responded that Baghel Singh was run over by a truck while
being brought to Amritsar,
[168]
Piyara Singh was killed by an ambush while being taken for recovery of weapons,
[169]
and Pargat Singh was killed in an encounter.
[170]
The case of two Pargat Singhs
The case of Pargat Singh "Bullet" illustrates the Punjab police's practice of falsely identifying cremation
victims, and the CBI's collusion in that practice.
At the time of the July 1996 Supreme Court order mandating a
CBI investigation into Pargat Singh's death, the only information available was
the date and place of cremation, the police station allegedly involved in the
abduction and illegal cremation, and that Pargat Singh had allegedly been
undergoing treatment at the Guru Nanak Dev hospital in Amritsar.
[171]
But Pargat Singh has never
properly been identified. One man, retired army officer Baldev Singh, claims he
saw his son, named Pargat Singh, being cremated. However, the CBI and police
have refused to respond to his pleas, and instead insist that the Pargat Singh
that was cremated by Punjab police was the son
of another man we can only identify as G. Singh at his son's request. Both
Pargat Singhs were nicknamed "Bullet."
In the first year of the legal proceedings, Baldev Singh
submitted an affidavit through CIIP regarding the extrajudicial execution and
illegal cremation of his son, known as "Bullet," after his detention by the
Punjab police on September 19, 1992, from a movie theatre in Amritsar.
[172]
The police started questioning Pargat Singh and his family
in October 1988 and tortured Pargat Singh during six days of illegal detention.
Later, when the police could not find Pargat Singh because he had gone
underground, they illegally detained and tortured Pargat Singh's father and
older brother. Baldev Singh told Ensaaf:
[T]hey arrested me over 200 times during a period of
two-and-a-half years and tortured me on many of those occasions. They would
always ask me to turn over my son. But how could I? He was underground and
never came home. During those days, the entire family stayed away from home. If
I wasn't home when the police came, they would take my wife and son and
wouldn't release them until I turned myself in.
[173]
On September 20, 1992, Baldev Singh learned that Pargat
Singh "Bullet" had been taken into police detention. He learned of the
detention from his sister who met Pargat Singh in custody when she visited her
son who had also been detained. (Her son was later released).
Baldev Singh immediately went to the police station to look
for his son but was refused. He then began desperately to try to locate his
son. One deputy superintendent of police (DSP) confirmed to a close police
contact of Baldev Singh's that Pargat Singh was in police detention, but
refused to release him. Baldev Singh also learned that the police took Pargat
Singh to B.R.ModelSchool,
an unofficial interrogation center, and tortured him.
Five days later, Baldev Singh asked another person who knew
the district's senior superintendent of police (SSP) to inquire after Pargat
Singh. Baldev Singh said,
The SSP told him that Pargat Singh had been taken to the
hospital for treatment. After that, I have no idea where they detained Pargat
Singh or what they did to him, until I learned about his encounter.
[174]
On the morning of November 5, Baldev Singh's friend met with
the SSP to ask about Pargat Singh. This time Baldev Singh heard that his son
had been killed:
The SSP told him that yesterday they had killed Pargat
Singh in an encounter and would cremate his body that day at Durgiana Mandir.
The SSP further said that they would not turn over his body.
[175]
The same day, Baldev Singh also read in the paper that
Pargat Singh "Bullet" had been killed in an encounter. A former member of
parliament (MP) from Amritsar,
who had been helping the family locate Pargat Singh, called the SSP of Tarn
Taran and asked for the body for cremation. The SSP told the MP they could
attend the cremation at Durgiana Mandir cremation ground at 4 p.m. The MP
advised Baldev Singh to go to the cremation ground immediately, since he could
not trust the police. Baldev Singh recounted in his affidavit how he witnessed
the cremation of his son:
I went to the cremation ground at Durgiana temple to ask
whether the police had already cremated him [Pargat Singh]. He had not been.
Then I went to the GeneralHospital [Guru Nanak Dev
hospital] where his post mortem had been conducted. There I talked to an
employee who had helped with the post mortem. He gave a detailed description of
the body confirming that the person murdered in the faked encounter was indeed
my son Pragat [sic]. He also told me that the police had taken the body away
for the cremation. I rushed back to the cremation ground. The pyre had already
been lit.
[176]
Baldev Singh told Ensaaf:
Pargat Singh's body had just started to burn from the head.
His body was on a stack of firewood, and then more wood was stacked on top of
his body. We rushed to the pyre and removed the wood on top. His body was
wrapped in a blanket. We ripped it open with our fingers. The blanket was
rotten so it came apart easily. I immediately recognized my son's body. We saw
bullet wounds on the left side of his body with exit wounds on the right. Once
I was satisfied, we placed the wood back on top and allowed the pyre to burn.
[177]
The police cremated Pargat Singh "Bullet," son of Baldev
Singh, on November 5, 1992; the next day the family collected his ashes.
The CBI visited Baldev Singh in
the winter of 1996. He told them he wanted justice, but never heard from them
again. Baldev Singh later learned that the CBI had refused to list his son as
one of those identified as having been cremated by the Punjab
police. He was instead identified as another Pargat Singh, a resident of
M-village and son of G. Singh. Baldev
Singh said he tried to convince the police that he had witnessed his son's
cremation, but to no avail. He was instead asked to produce his son.
In November 2006, an inspector from B-Division summoned me
to the police station. He asked me to identify my son. I told him that my son
was Pargat Singh and that he had been killed in a fake encounter. He started
berating me saying that he didn't believe me. He said that Pargat Singh
belonged to a family from village M-. He told me that it was impossible for
there to be two Pargat Singh's from two different families, both killed in the
same encounter, yet only one body. He then demanded that I turn over my son. I
told him that he could say whatever he liked, but I saw my son's body with my
own eyes. He continued shouting at me, saying there couldn't be two Pargat
Singhs. I told him that was for him to explain, not me, but I saw him with my own
eyes.
I returned about one week later to determine if they would
acknowledge my son. The inspector said that he wouldn't recognize my claim. He
would recognize the family from M- village. According to his documentation,
they were Pargat Singh's family so he would decide in their favor. There was
nothing else I could say, so I left.
The government should tell me what really happened. They
should acknowledge my son's death. I saw him with my own eyes. How can they
tell me that it wasn't my son?They made my family suffer. Nobody was willing
to marry my daughter. I'm not hungry for money, I'm hungry for justice.
[178]
The CBI continues to identify the Pargat Singh who was
cremated on November 5, 1992, as the son of G. Singh, not Baldev Singh.
The Pargat Singh that the CBI list acknowledges was the son
of G.Singh and nicknamed "Mini Bullet." Pargat Singh's brothers told Ensaaf
that he was a militant with the Khalistan Commando Force (KCF). The police
regularly harassed his family. K. Singh, Pargat Singh's brother, recounted to
Ensaaf:
All in all, over the years, I was abducted and tortured 15
to 17 times. Chabal, Bhikiwind, Khalra, Harike were the main police stations
involved. My father was abducted five to six times. In 1992, the police
detained me continuously for seven months at various police stations, and beat
me. When they transferred me between police stations, they would blindfold me,
so I didn't know where I was. I was released five to six days after they killed
my brother Pargat Singh.
[179]
According to the Punjab
police, Pargat Singh of M-village was cremated on November 5, 1992, the same
day that Baldev Singh witnessed the cremation of his son Pargat Singh. Only one
Pargat Singh's cremation is recorded on that day in the cremation ground
records.
[180]
The family of G.Singh read about the cremation at Durgiana Mandir cremation
ground in the
Ajit
newspaper and went
to collect the ashes; the cremation ground workers did not give the ashes to
them.
As discussed above, in July 1996, the Supreme Court ordered the
CBI to investigate the killing of Pargat Singh "Bullet." One of his brothers,
K. Singh, described the extent of investigation:
Many years later, the CBI visited our house to ask us about
Pargat Singh's death. They came a total of four times. The first two times the
CBI came from Patiala.
The first two times we were afraid to talk to the CBI and told them that we
didn't know anything. Then we spoke with Mrs. Khalra [Jaswant Singh Khalra's
widow] and she said that it was okay to speak with them-that they were
investigating our case.
The CBI from Amritsar
then visited us twice in the same year. We told them about our history of
persecution and whatever we knew about Pargat Singh's death. The CBI actually
had more information than we did. They told us that the Raja Sansi police had
faked the encounter of Pargat Singh. They said that some woman had admitted
Pargat Singh to the hospital ten days earlier because of pain in his appendix.
Then, on November 4, 1992, Raja Sansi police abducted Pargat Singh from the
hospital and then cremated him at Durgiana Mandir the next day. They further
said that Sub-Inspector[Name withheld]of Raja Sansi Police was the main
accused.
[181]
K. Singh described the lack of court proceedings:
In 2001, we received a letter from the CBI Patiala telling
us to come to court to give testimony. About ten days later, I went to Patiala to the address
indicated on the letter. I went to some government office. There, someone told
me to go to an attorney's office. I went to that attorney's office and met a
clerk. The clerk told me to return in about a month. I went back a month later
to the clerk. The clerk told me that if we wanted to fight our case, we would
have to give him 20,000 rupees-5,000 for him and 15,000 for the attorney. I
told him that we had no ability to pay that amount and left. After that, the
CBI never contacted us again. We have no idea if the CBI ever prosecuted
anybody for Pargat Singh's murder.
[182]
Baldev Singh continues to dispute which Pargat Singh was
killed and cremated on November 5, 1992. The CBI acknowledges the cremation of
a Pargat Singh, but still insists he was the son of G. Singh.
The killing of Piyara Singh
In July 1996, the Supreme Court ordered the CBI to register
a case regarding the killing of Piyara Singh.
[183]
Piyara Singh's son Balraj Singh, however, told Ensaaf that the CBI approached
the family only twice during its investigation and the family has no knowledge
of any criminal prosecution pursued in response to the Supreme Court order.
Balraj Singh said that a police team arrested his father in
1987 and tortured him for five to six days. In 1989, a police force arrested
his father at his home and brutally tortured him, using a heavy roller,
suspending him, tearing his legs, pulling his nails out of his feet, and
impaling his legs with sharp, heated iron rods. In 1990, out of fear of the
police, Piyara Singh moved to Uttar Pradesh to live with his sister.
In 1992, Balraj Singh was visiting his father in Uttar
Pradesh when the police came to the village disguised as a group of doctors:
They approached my father's neighbors, saying they wanted
the presence of a prominent person to inaugurate a hospital. The neighbors
mentioned my father, but said that he wasn't home. The police said that they
would wait nearby and asked the neighbors to signal them when my father
returned.
When my father returned home and entered the house, about
10 to 12 policemen rushed in after him and tackled me and my father. They tied
our arms behind our backs and took us away on a mini truck.
[184]
The police took Balraj Singh and his father Piyara Singh to
the B.R.ModelSchoolInterrogationCenter,
and placed them about three cells apart:
They started torturing my father. I could hear his screams
into the morning. That night, around 9 p.m., they came for me and tortured me
for about an hour. But they tortured my father continuously for three days. I
could hear his screams the entire time. After the third day, I could no longer
hear him, so I assumed they had tortured him to death.
[185]
After his release over two weeks later, Balraj Singh learned
that the police reported that his father had been killed in an encounter. He
further learned from his family that his grandfather and Jaswant Singh Khalra
had gone to Durgiana Mandir cremation ground and spoken with a cremation ground
worker. Khalra knew Piyara Singh because they were both bank directors.
According to Balraj Singh, the family did not hear from the
CBI again after 1996.
C. The murder of Jaswant Singh Khalra: Intimidation
of witnesses and superior responsibility
In the early 1990s, human rights defender Jaswant Singh
Khalra joined the Human Rights Wing of the political party Akali Dal.
[186]
In 1994, while investigating the disappearance of a personal friend, Khalra
discovered that the police had secretly cremated his body at Durgiana Mandir
cremation ground in Amritsar
district. Khalra launched a wider investigation into secret cremations.
[187]
In January 1995, Jaswant Singh Khalra and his colleague
Jaspal Singh Dhillon released a report on mass illegal cremations using
government records. KPS Gill, the director general of police (DGP) in Punjab,
responded to their evidence by accusing Pakistan's
Inter-Services Intelligence (ISI) of trying to destroy peace in Punjab and alleging that most of the "disappeared"
persons were living abroad.
[188]
Khalra discussed DGP Gill's statements in April 1995:
KPS Gill said in a press conference in Amritsar, 'These Human Rights Wing
folks-they're not doing anything on human rights. They have one motive, to prop
up their agenda, so there is no peace in Punjab.
They are ISI agents, and they are hatching a conspiracy to discourage the
police machinery and re-incite militancy.' KPS Gill went to the extent of
saying, 'I'll tell you where those kids are.' He said, 'These kids are in
Europe, in Canada, and in America, where
they are earning their daily wages. And these human rights organizations are
telling us that thousands of kids have disappeared.' This was a challenge to
us. This was a challenge to that truth which we sought to bring forward.
[189]
Khalra challenged DGP Gill to an open debate on the
evidence.
[190]
In February 1995, at a press conference, Khalra publicly disclosed the death
threats made to him because of his human rights work.
[191]
He also discussed these death threats with various other individuals,
especially threats made by the Tarn Taran police under the command of Senior
Superintendent of Police (SSP) Ajit S. Sandhu, who had been transferred back to
Tarn Taran district after Khalra released his investigative report.
[192]
Sandhu allegedly threatened Khalra that he, too, would become an unidentified
dead body.
[193]
In March, the police tried to discredit Khalra by alleging that he had links
with a militant group.
[194]
Khalra continued to expose police officials, speaking throughout Punjab and North America on the issue.
On the morning of September 6, 1995, the Punjab
police abducted Jaswant Singh Khalra. Rajiv Singh, a reporter who was present
at the Khalra residence, witnessed the abduction and identified the police
officers involved. Rajiv Singh saw three uniformed policemen and one policeman
in civilian clothes exit a Maruti van. According to Rajiv Singh, two of the
police officers, Station House Officer (SHO) Satnam Singh of Police Station
Chabal and Head Constable (HC) Prithipal Singh of Police Post Manochahal,
carried carbines, and Deputy Superintendent of Police (DSP) Jaspal Singh, also
uniformed, had a walkie-talkie set. DSP Ashok Kumar sat in the front seat of
the Maruti gypsy, or jeep, on the left side of the driver's seat. Surinderpal
Singh, SHO of Police Station Sarhali, sat in the front seat as well. Rajiv
Singh further observed five to six uniformed policemen sitting in the back of
the Maruti gypsy; one of them was Jasbir Singh, in-charge of Police Post
Manochahal, another was Assistant Sub-Inspector (ASI) Amarjit Singh, and a
third was Avtar Singh Sona, son of SSP Sandhu's nephew Jagbir S. Sandhu.
[195]
Rajiv Singh heard DSP Jaspal Singh tell Khalra that SSP
Sandhu wanted to meet him. Khalra was forcibly placed between DSP Jaspal Singh
and HC Prithipal Singh in the van. Rajiv Singh then heard DSP Jaspal Singh make
a call on the walkie-talkie and state that the work was completed.
[196]
Khalra was then taken away in the Maruti van, followed by the Maruti gypsy.
Kirpal Singh Randhawa, a resident of the same neighborhood, also claimed to
have seen the vehicles.
[197]
After the abduction, Rajiv Singh called Paramjit Kaur,
Khalra's wife, and informed her of the abduction. She immediately came home
from work and, accompanied by Rajiv Singh, went to Islamabad Police Station to
make further inquiries. She then informed her family and husband's colleagues,
and also sent telegrams to the chief minister of Punjab, director general of
police, chief justice of India,
and chief justice of the Punjab and Haryana
High Court, among others.
[198]
A few days later, Paramjit Kaur filed a habeas petition in the Supreme Court.
Khalra's abduction by the police was never recorded in police records,
[199]
and the police maintained that there was no criminal case against him and thus
no reason to arrest him.
[200]
As a court subsequently confirmed, the Punjab police
illegally detained and tortured Khalra for almost two months before killing him
in late October 1995 and, discarding his body in the Harike canal in Amritsar, Punjab.
[201]
Several days prior to his murder, the police allegedly took Khalra to SSP
Sandhu's residence, where KPS Gill allegedly joined them and interrogated
Khalra for half an hour. On the ride back to the police station, SHO Satnam
Singh told Khalra that if he had listened to DGP Gill's advice, he would have
saved his life.
[202]
In November 1995, the Supreme Court directed the CBI to
investigate the kidnapping of Jaswant Singh Khalra.
[203]
The CBI filed a charge sheet against nine police officers from Tarn Taran
district on October 30, 1996, but did not arrest any of the accused.
[204]
Initially, the CBI only charged the police officers with kidnapping and illegal
confinement, and not torture or murder.
[205]
After Paramjit Kaur Khalra's attorney intervened in 1997,
[206]
the court revised the charges to include murder charges against three of the
officials.
[207]
On November 18, 2005, over ten years after Paramjit Kaur
Khalra filed a habeas corpus petition regarding her husband's abduction,
Additional Sessions Judge Bhupinder Singh convicted and sentenced six Punjab police officers for their roles in the abduction
and murder of Khalra.
[208]
Two other police officers-SSP Sandhu and DSP Ashok Kumar-died during the course
of the trial, and one other police officer was not prosecuted and discharged.
[209]
The convicted police officers have appealed the convictions.
[210]
Paramjit Kaur Khalra has appealed the leniency of the sentences, arguing that
all who gave orders or otherwise participated in the murder should receive life
sentences.
[211]
The CBI has not filed any appeal.
[212]
While the convictions of lower-level officers more than a
decade after the murder represent an exception to the impunity otherwise
enjoyed by the security forces for serious abuses committed during the
counterinsurgency, even in this case justice has not been done. The truth has
not been established, the most responsible senior police officials have not
been charged, and the proceedings that have taken place have been marred by
inordinate delays and egregious intimidation and harassment of witnesses.
There is even evidence that some of the officers convicted
in 2006 are receiving special treatment. Individuals have informed Khalra's
widow that they have seen some of the convicted police officers out during
weekends at bars, clubs and hotels, suggesting that they are periodically
released from jail.
[213]
Mrs. Khalra's attorney Rajvinder S. Bains informed Ensaaf that DSP Jaspal Singh
has stayed at home in Hoshiarpur when he was supposedly transferred to a local
Hoshiarpur jail for cases proceeding against him in a local court.
[214]
Prior to the conviction, moreover, in part due to the
slowness of the proceedings and the CBI's failure to make arrests, the accused
repeatedly intimidated and threatened witnesses.
Police have retaliated against activists by implicating five
of the key witnesses-Khalra's wife Paramjit Kaur, as well as Kulwant Singh,
Kikar Singh, Rajiv Singh, and Kirpal Singh Randhawa-in false criminal cases,
ranging from bribery, rape, and robbery, to establishing a terrorist organization.
[215]
The police arrested Rajiv Singh, the witness to Khalra's abduction, at least
twice to prevent his appearing in court to testify, and implicated him in a
total of four cases, including the forming of a terrorist organization.
[216]
The Punjab State Human Rights Commission investigated the terrorism charge and
concluded that the police falsely implicated him.
[217]
In 2004, prior to his testimony in the Khalra case, the police falsely
implicated another eyewitness to the abduction, Kirpal Singh Randhawa, in a
rape case, and accused both him and Rajiv Singh of allegedly threatening a
witness in the rape case.
[218]
The police further threatened Kulwant Singh, who saw and
spoke to Khalra in custody on September 6, 1995, the day of Khalra's abduction.
[219]
Kulwant Singh said that he was brought to the office of SSP Sandhu and
questioned about Khalra by Sandhu, Station House Officer (SHO) Satnam Singh and
Deputy Superintendent of Police (DSP) Jaspal Singh, three of the accused police
officers.
[220]
Kulwant Singh stated in his trial testimony that police officers threatened and
asked him not to meet CBI officials in connection with the Khalra case.
[221]
Police harassment appears to have been the reason Kikar
Singh turned hostile during trial. Kikar Singh initially told the CBI that he
saw Khalra in police custody at Police Station Kang on October 24, 1995,
witnessed signs of torture on his body, and helped him eat:
At the time the hair of his [Khalra's] beard and head had
been plucked and he had blue marks of bruises under his eyes. His fingernails
were also blue. He had bruises on his body. He could not eat his food with his
hands. I fed him food with my own hands. After eating the food he was taken out
by the sentry and Jaswant Singh Khalra was not even able to walk properly. I
helped him by supporting him with a shoulder along with another person in
civilian clothes.
[222]
After giving his statement to the CBI, Kikar Singh
repeatedly asked for protection.
[223]
The protection was ineffectual. In his affidavit of August 29, 1996, Kikar
Singh stated that SSP Sandhu and DSP Jaspal Singh were pressuring him to turn
hostile by implicating his father and relatives in false cases and by
conducting raids on his house.
[224]
They forcibly took possession of his house and farm on August 25, 1996 in
connivance with Kikar Singh's security guard.
[225]
After spending time in judicial custody, Kikar Singh turned hostile in Khalra's
case, denying any knowledge of Khalra, that they had been in illegal detention
together, or that he had made two previous statements to the CBI regarding his
knowledge of abuses against Khalra.
[226]
Police officers appear to have intimidated a key witness
into filing a false bribery case against Paramjit Kaur Khalra and her
supporters. In March 1998, officers implicated in Khalra's abduction visited
Special Police Officer (SPO) Kuldip Singh, who had witnessed Khalra's illegal
detention, torture, and the disposal of his body. The police officers
intimidated SPO Kuldip Singh into filing false bribery charges against Paramjit
Kaur Khalra, threatening him and his wife with disappearance.
[227]
The charges against Paramjit Kaur Khalra were quashed after SPO Kuldip Singh's
family denied his statement and human rights groups drew attention to the case.
[228]
In November 2004, SPO Kuldip Singh expressed no confidence in Punjab police
security and requested that a Central Reserve Police Force (CRPF) vehicle
replace the Punjab police vehicle that was
bringing him to court.
[229]
The CBI's failure to charge Punjab Director General of
Police (DGP) KPS Gill for his role in the abuses against Khalra highlights
serious failures in the prosecuting authority of the CBI. To address the CBI's failure
to charge KPS Gill, Paramjit Kaur Khalra petitioned the court to allow her
lawyers to intervene in the case. In a September 1997 order, the special
judicial magistrate allowed her lawyers to argue, examine, and cross-examine
witnesses, while acting under the directions of the public prosecutor.
[230]
In 1997, after SSP Sandhu committed suicide, SPO Kuldip
Singh approached the CBI with direct information on the abuses against Khalra.
He said he had been too afraid to disclose this information while Sandhu was
alive.
[231]
SPO Kuldip Singh had served under SSP Sandhu since 1994, specifically as the
bodyguard of SHO Satnam Singh, another accused in the Khalra case.
[232]
In February 1995, when SSP Sandhu was transferred back to Tarn Taran after
Khalra announced his discoveries, SPO Kuldip Singh and SHO Satnam Singh were
also transferred with him.
[233]
In his statement to the CBI, SPO Kuldip Singh described how he had been
appointed to guard the room where Khalra was detained, and discussed the role
of different officers, including the senior-most officer, DGP Gill, in the
abuses against Khalra.
[234]
The CBI appears to have actively
worked to prevent the addition of Kuldip Singh as a witness in the trial.
According to Kuldip Singh, SHO Satnam Singh told him on March 22, 1998, that
the CBI officials who had recorded his statement had apologized to KPS Gill
under pressure from the central government.
[235]
On August 12, 1998, Paramjit Kaur filed an application in court for a direction
to the CBI to present the supplementary charge sheet with the statement of
Kuldip Singh.
[236]
The CBI opposed this application, as did the accused; the court, however,
ordered the CBI to present its supplementary report within a month.
[237]
In its report, the CBI stated that they refused to add Kuldip Singh as a
witness because his statement did not "inspire confidence" since it had been
made two-and-a-half-years after Khalra's abduction; they imputed his making the
statement to his failure to secure a job in the Punjab police.
[238]
According to the CBI, other police officers stated they had no knowledge of
Khalra's detention and KPS Gill also denied his role.
[239]
Mrs. Khalra filed another application through her attorney in January 2000
arguing for Kuldip Singh to be added as a witness, which the CBI opposed.
[240]
Only in October 2000, by order of the sessions judge, was Kuldip Singh added as
a prosecution witness.
[241]
The sessions judge found Kuldip Singh to be a material witness whose
credibility could be assessed during cross-examination in trial.
[242]
In February 2005, SPO Kuldip Singh gave his testimony in
court and explained the sequence of events leading to Khalra's custodial
torture and murder, including the role of KPS Gill. He described how, in
October 1995, he was handed the key of a room in Police Station Chabal by SHO
Satnam Singh. SHO Satnam Singh told him that a man was being detained there and
that he must serve him meals and keep his detention secret.
[243]
SPO Kuldip Singh opened the door and saw Khalra there; his clothes were torn
and there were bruises on his body.
[244]
He described how he witnessed beatings of Khalra by the accused officers
because Khalra had refused to stop his human rights work.
[245]
One day, the police officers took Khalra to SSP Sandhu's residence:
The condition of Sh. Jaswant Singh Khalra was not good as
he had suffered beatings and was not able to walk and was brought to the car by
me and Sh. Satnam Singh by holding him from arms. His wrist joints were swollen
at that time and he was not able to even take his meals properly. He was also
unable to go to answer the call of the nature. We had to support him for doing
so.
[246]
Thereafter, he said, KPS Gill visited SSP Sandhu's house and
interrogated Khalra for half an hour, and thus witnessed that Khalra could
barely move from the torture he had experienced at the hands of Gill's
subordinate officers.
[247]
SPO Kuldip Singh further testified that SHO Satnam Singh told Khalra to accept
KPS Gill's advice and save himself.
[248]
SPO Kuldip Singh further described Khalra's murder and the disposal of his dead
body in Harike canal.
[249]
SPO Kuldip Singh's testimony established that DGP Gill
defied Supreme Court orders regarding Khalra's habeas petition. On September 6,
1995, Paramjit Kaur Khalra sent Gill a telegram informing him of her husband's
abduction.
[250]
On September 11, 1995, five days after Punjab
police abducted Khalra, the Supreme Court issued formal notice and service to
DGP Gill of the habeas corpus petition filed by Khalra's wife.
[251]
Despite receiving this formal notice, DGP Gill failed to disclose Khalra's
whereabouts while Khalra was alive. On November 15, 1995, the Supreme Court
ordered the CBI to inquire into Khalra's "disappearance" because the police
investigation had not yielded any results. The Court further directed DGP Gill
to "render all assistance and help to the CBI."
[252]
According to the judge who passed the final order, Kuldip
Singh "did respond properly to all the queries put forward to him by the
defense counsel who could not shake his veracity despite detailed and lengthy
cross-examination of this witness."
[253]
The judge found that the in-court statements made by Kuldip Singh were "fully
consistent" with the statements he had given earlier to the CBI.
[254]
Despite this detailed and consistent information, accepted
now as findings of fact by a court of law, the CBI has failed to initiate an
investigation of KPS Gill's role in the abduction, torture, and murder of
Khalra. After writing twice to the CBI requesting that it initiate an
independent investigation and bring charges against former DGP Gill,
[255]
with no reply,
[256]
on September 6, 2006, Mrs. Khalra filed a petition in the High Court.
[257]
Over a year later, this petition has yet to have a substantive hearing.
[258]
One of the greatest obstacles to combating impunity is the
failure to hold superior officials accountable. The international law doctrine
of superior responsibility imposes liability on superiors for the unlawful acts
of their subordinates, where the superior knew or had reason to know of the
unlawful acts, and failed to take necessary and reasonable measures to prevent
or punish those acts.
[259]
Based on his acts and omissions, the Punjab Director General of Police, KPS
Gill, could be liable under the doctrine for Khalra's abduction, illegal
detention, torture, and murder. The evidence suggests that Gill himself
participated in crimes against Khalra, and failed to rescue or order Khalra's
release when he knew Khalra was being ill-treated.
A superior-subordinate relationship exists if the superior
possesses "effective control" over a subordinate,
[260]
which includes the ability to prevent or punish the commission of offenses.
[261]
By his own admission, Gill exercised effective control over the Punjab police, and had intimate knowledge about the
functioning of individual police stations.
[262]
Gill wrote that he created an "active and accountable police leadership" and
described how he worked to be a leader who led "from the front."
[263]
His de jure command, as evidenced by his own admissions and the high-level
tasks he performed, creates a presumption of effective control.
[264]
His de factocommand over his subordinates
also demonstrates his effective control, as evidenced by his ability to issue
orders that were followed.
[265]
Moreover, Gill was in a position to prevent and punish offenses with the power
to initiate investigations and discipline subordinates.
[266]
In September 1992, Gill himself said that his office was investigating more
than 30 allegations of police wrongdoing and had fired more than fifty officers
for misconduct.
[267]
Furthermore, Gill thoroughly exercised his powers to reward and promote
subordinates,
[268]
and demanded regular communications and meetings with subordinates.
[269]
All of these factors demonstrate that Gill had effective control over the
subordinates who committed the crimes against Jaswant Singh Khalra.
KPS Gill appears to have had
actual and constructive knowledge that his subordinates committed and/or were
about to commit unlawful acts against Jaswant Singh Khalra because he witnessed
Khalra's illegal detention and tortured body.
[270]
Further, his position in the chain of command, the timing of the abduction
after Khalra exposed the mass cremations,
[271]
the extensive use of police infrastructure and personnel to commit the crimes,
also are strong evidence of his actual knowledge of the crimes. In this case,
there were no fewer than nine police officers involved in the operation to
abduct Khalra, including officers with the ranks of SSP, DSP, and inspector, who
used police radios, weapons, and unmarked vehicles to abduct Khalra.
[272]
Further, in May 1994, the Supreme Court heard a petition implicating the police
abduction and disappearance of four Punjab
human rights attorneys.
[273]
At the time of Khalra's abduction, one of the accused, SSP Sandhu, had at least
19 charges against him.
[274]
KPS Gill had reason to know, or constructive knowledge, of
his subordinates' crimes against Khalra because of the number of complaints and
court notices he received about Khalra's abduction and threats to Khalra's
life, the information available in the public domain about the role of his
subordinates in Khalra's abduction, and general information on the violent
history of his subordinates. Despite this actual and constructive knowledge that
his subordinates had committed and were about to commit unlawful acts against
Khalra, Gill failed to take necessary and reasonable measures to prevent his
subordinates from committing unlawful acts against Khalra or to punish them
afterwards. Gill could have prevented his subordinates' crimes against Khalra
with a simple release order and an order prohibiting further harm against
Khalra. This measure was necessary because it was legally required by the
Supreme Court and within his ability.
This case demonstrates the serious defects in the way the
government has dealt with the abuses that accompanied the Punjab
counterinsurgency operations. The lack of witness protection, the length of
trials, duplicative investigations, the unwillingness to hold senior officials
accountable, and government interference ensure that impunity for mass state
crimes continues.
D. The killing of Jugraj Singh: Police intimidation
and failure of due process
The lack of justice in India is like a cancer. It's eating
away at Indian society. But if you don't tell people about it, then it will
never get cured. You can't be afraid to tell the truth.
-Mohinder Singh, father of Jugraj Singh
Unfortunately, the Khalra case is not an isolated example.
The experience of Mohinder Singh in pursuing justice for the murder of his son
Jugraj Singh also illustrates the role of the CBI in protecting the police, the
intimidation of witnesses and petitioners, the failures of the judicial
process, destruction of evidence by the police, and the lack of justice despite
considerable efforts by affected families. It is further evidence that impunity
continues to trump the rule of law in India.
On the morning of his abduction on January 14, 1995, Jugraj
visited Mohinder Singh-they lived a few blocks apart in Mohali. Jugraj Singh
told his father that he was going to the scooter market in Phase III B-2 to get
his van fixed. When Mohinder Singh visited Jugraj Singh's house around 8 or 9
p.m. that evening, his daughter-in-law told him that Jugraj had not returned.
After speaking to neighbors, they learned that people at the market were saying
that the police had arrested Jugraj. Mohinder Singh recounted:
A lot of people at the market knew Jugraj so it's no
surprise that they were talking about it. The day after the abduction the juice
vendor, whose stall was in the market, told me that a blue Maruti car with
license plate number PCO-42 parked at his stall around 7 a.m. and four
plainclothes policemen stood around the car. When Jugraj passed the car in his
van they jumped into the car and pulled out after him. The car overtook the
van. Some of the men got out and signaled Jugraj. Jugraj stopped his van
thinking they wanted a ride. They forced themselves into the van and took off
towards Phase 8. Jugraj was a regular customer of the juice vendor's and they
knew each other well. A few days later, the juice vendor packed up and left.
[275]
The next day, accompanied by two friends, Mohinder Singh
went to the police station in Phase 8 to register a complaint:
I didn't go to the police station immediately because it
was late and I didn't want to go alone.
At the police station we met with the clerk and told him
that we wanted to register a complaint about the abduction. The SHO said that
they would register our written complaint and find out in a few days where
Jugraj was. We took a blank sheet of paper from the clerk and sat down and
wrote-up the complaint. I wrote that police had abducted my son and I didn't
know where he was and wanted the police to locate him. I gave the complaint to
the clerk in the presence of the SHO. They didn't register the complaint in
their Daily Diary Report or register a First Information Report (FIR).
[276]
The following day, on Monday, January 16, Mohinder Singh
went to the residence of Deputy Superintendent of Police (DSP) Gurpreet Singh
Gill with a friend and an acquaintance of the DSP. He told Ensaaf:
The SP (Detective) was with the DSP at the time. I told the
DSP about my son's abduction. The DSP asked for the engine and chassis numbers
to Jugraj's Maruti van. He said that without it he couldn't trace Jugraj, but
with it he could find him quickly.
In the meantime the SHO showed up. The DSP asked him if he
had registered our case in the Daily Diary Report or registered an FIR. The SHO
lied and said that he had.
[277]
Mohinder Singh procured a copy of the van's registration
certificate, which recorded the van's engine and chassis numbers and gave that
copy to the DSP.
That same day, Mohinder Singh sent a telegram to the chief
justice of the Punjab and Haryana High Court,
asking the court to intervene and save his son's life.
[278]
He also visited the market to verify the details of the arrest, and spoke to
the owner of the shop next to the mechanic's shop, whom his family knew well.
This man confirmed that he had seen Jugraj in his vehicle with police on
January 14, and that the police had also at that time arrested another man
called Sukhdev Singh from his shop and driven away towards Phase 8. The owner
recognized the SHO seated in the vehicle that was used in the arrest of Sukhdev
Singh, which was followed by Jugraj's vehicle.
The police did not register Mohinder Singh's complaint until
Monday evening; it never registered his FIR. After calling Mohinder Singh to
the police station on Monday evening, the police accompanied him to the market,
where he witnessed them arrest the owner of the shop who had seen Jugraj in
police custody:
We reached the market at 6 p.m. and the SHO arrived
separately at the same time. At the market I explained to the SHO what the
owner of the shop had told me. The SHO then forcefully grabbed the owner by the
arm and dragged him into the jeep and took him away.
The SHO repeatedly asked me in a threatening manner: 'Was
Sukhdev Singh your relative? Did he visit your house? Did you know he was a
terrorist?' I said that I didn't know him so don't keep asking me and
threatening me. He really tried to intimidate me at the market. The shop
owner's father repeatedly asked the SHO why he was taking his son. The SHO also
threatened him and said: 'What's it to you?' The police left with the shop
owner and we quietly came home.
Two to three
days later the shop owner's father told me that he had gotten his son released
that same evening. The police had badly beaten him. The father was upset with
me for naming his son and asked my why I had implicated him. I said that I
simply repeated what his son had told me. The police told the shop owner's
father: 'You better get your son out of here [India] otherwise we're not going to
let him go.' Within a month the shop owner's father had his son in Australia on a
student visa.
I should never have told the police about any of the
witnesses until the witnesses had a chance to record their statements in court.
The police killed or intimidated all of them.
[279]
On the morning of January 16, the newspapers carried
statements from the SSP of Majitha, RS Khatra, that Majitha police had shot
dead one Kashmiri Muslim militant and one Sikh militant in an encounter in Baba
Bakala. (It was later established that the alleged Kashmri militant was
actually Jugraj Singh). A white Maruti van was also shown in one of the
photographs, and the reports stated that the license of Sukhdev Singh had been
recovered from the Sikh.
[280]
However, on January 20, DGP KPS Gill issued a statement saying that the Sikh
militant was not Sukhhdev Singh Sukhi but Didar Singh.
[281]
Following his son's arrest, Mohinder Singh met over 60
individuals in an attempt to gather information about his son, including the
senior-most Punjab police officers, chief ministers and governors of Punjab,
MLAs, MPs, judges, lawyers, journalists, religious leaders, and many other
individuals. None of them were able to help him resolve his son's
"disappearance":
I was in a great deal of pain. I was deeply discouraged.
Peace wouldn't come to my mind. I ran in any direction suggested in the hope
that it might lead me to my son. But my son was gone. How was he going to come
back?
[282]
On January 30, in response to Mohinder Singh's telegram, the
High Court issued notices to DSP Gurpreet Singh Gill and the superintendent of
police of Ropar. Throughout the court proceedings, the police harassed Mohinder
Singh, by coming to his home late at night and ringing the doorbell. After
these incidents, Mohinder Singh would send complaints to senior police officers
and members of the legislative assembly where he had worked.
Mohinder Singh described how he eventually recovered
Jugraj's van, and how investigations that followed prompted the High Court to
order a CBI inquiry:
While the High Court case was pending I filed an
application with the court stating that the white Maruti van was mine and that
I be allowed to recover it from Beas Police Station. The judge passed an order
on March 8, 1996, stating that I could repossess the car at my own expense and
hand it over to the CRPF at the High Court.
The van was outside in the police grounds at the back of
the main building. The police had completely finished it. They had removed the
windows, the wheels, tires, the carburetor, everything was lying outside. They
had welded the engine back in on one side instead of bolting it, probably
because they had misplaced the bolts when they had removed it to destroy the
engine number.
[283]
The following day, Mohinder Singh arranged for a photographer
to take pictures of the van so that its current state could be compared to
earlier pictures of it. After reviewing the recent and old photos, the judge
ordered the CBI investigation on April 23, 1996.
[284]
The CBI DSP and two inspectors were appointed to investigate
Jugraj Singh's killing. Jugraj's van remained at the High Court for two months
before the CBI team took possession of it and transferred it to the Central
Forensic Science Laboratory in Sector 36 in Chandigarh. The DSP asked Mohinder Singh to assist
the forensic team, which included paying for services:
First, the forensic team wanted to see the engine number I
brought two mechanics on my scooter from the gas station in Sector 37 to the
lab. It took them about an hour to remove the engine. After removing it we
could see that the engine number had been welded over with metal. The lab
wanted to remove the welded material but all they had were files. So they told
me to make arrangements to have the welded-on material removed. I then got
another mechanic from Sector 21 who had an electric grinder and brought him to
the Forensic Lab. It took him about an hour to grind through the welded
material. Then, the forensic team applied several different etching chemicals
to remove the remaining material. Unfortunately, none of these efforts revealed
the engine number. The police had completely obliterated it.
At this time, we also checked for the chassis number. When
we got under the van to take a look, there was 2.5 inch hole where the chassis
number used to be.
The forensic team then enlarged the photos from my
negatives and compared all the photos with each other and with the van in their
possession.
[285]
Based on the earlier photographs, the forensic team noticed
many similarities with the van in their possession. The same patterned covers
were visible in the photos and in the recovered vehicle. Mohinder Singh
described other similarities:
The old picture of the van also showed a fan bolted to the
dashboard between the passenger and driver. There was a brown velvet cloth on
the dashboard of the recovered vehicle and when the forensic investigators
removed it they found three bolt holes exactly where the fan would have been.
They also measured the location of the fan on the dashboard in the picture with
the bolt holes in the dash of the recovered vehicle and concluded they were at
the same spot.
Jugraj's van also had red sticker striping on the sides of
its doors which could be seen in the old pictures. There were no stickers on
the recovered van but you could see that there was adhesive residue left on the
same spot where the stickers would have been. I asked the forensic team to
compare the measurements of the stickers on the van in the photos with the
dimensions of the adhesive residue on the van. They did this and concluded that
the stickers were the same size and had been peeled off.
Also, the driver's side door of Jugraj's van had been
damaged in an accident. The handle got bent in and the door got scratched. The
repair shop filled in the dent with powder and painted over it. When I
mentioned this to the forensic team they scrapped at the area where I indicated
the damage should be and powder came loose.
[286]
The director of the forensic lab submitted its report to the
CBI concluding that the van recovered from the Beas Police Station belonged to
Jugraj. Despite this report, the DSP from the CBI challenged the ownership of
the van. Mohinder Singh recounted:
The last piece of the puzzle was the vehicle registration
number which the DSP insisted on. I had mentioned the registration number in
the High Court petition. The DSP took the registration number to the Transport
Department and asked them to check it with their records. They did and
confirmed that the white Maruti van was registered with Jugraj Singh.
[287]
While this was happening, Mohinder Singh described how the
CBI attempted to dissuade him from pursuing this case:
On one occasion when [the officer] from the CBI came to my
house, he told me that I wasn't going to get anything out of this. Not justice
and not even compensation. He further said that: 'I see you running around
pursuing your case. But you shouldn't get into a confrontation with the police.
You have to live here and they can pick you up at any time.' He was indirectly
threatening me.
[288]
The
CBI submitted its report to the High Court on August 16, 1996. The CBI
confirmed the van as Jugraj Singh's.
[289]
The CBI, however, concluded that Jugraj's being taken into police custody could
not be established. The CBI report did state that one of the two encounter
victims was Jugraj and clarified that he was the clean-shaven youth that had
been killed.
[290]
This also meant that the police had cut short the hair of Jugraj Singh, a
devout Sikh who kept his hair uncut according to Sikh discipline. Based on
photographs of the alleged encounter scene, Mohinder Singh disputes the CBI
version, maintaining that Sukhdev Singh was the one whose hair and beard were
cut.
The CBI report
was accepted by the High Court judge on April 29, 1997.
[291]
The judge denied Mohinder Singh's request for further investigation by the CBI.
Mohinder Singh filed another application requesting the CBI
to record the statement of Kesar Singh, who witnessed the police abduction.
[292]
Mohinder Singh described the significance of Kesar Singh and how the judge
failed to order the CBI to examine him as a witness:
Kesar Singh had gone to my attorney for his own reasons. He
told the attorney that he witnessed the police abduction of Jugraj but didn't
know how to get in touch with Jugraj's family. My attorney gave Kesar Singh my
number. He came over and told me everything he had witnessed. He knew Sukhdev
Singh Sukhi alias Didar Singh and Jugraj. Kesar Singh was walking from his
office in Phase 7 to meet someone in Phase IIIA when he witnessed the police
abduct Sukhi and saw Jugraj in the back of his van.
We filed Kesar Singh's affidavit in the High Court along
with an application asking the court to order the CBI to examine him as a
witness. The CBI strongly opposed the application. They argued that it was too late
to introduce a new witness.
The court rejected Mohinder Singh's application:
In the beginning of the investigation the DSP said: "If you
give me even one eyewitness to the abduction I'll hang all of them [the
police]." And when I produced an eyewitness the CBI refused to examine him.
[293]
Judge Srivastava denied this petition, but stated that
Mohinder Singh would receive notice when the CBI filed its final report in the CBI Special Court.
[294]
The High Court disposed of Mohinder Singh's petition on November 21, 1997.
[295]
The CBI filed its final report
in the Court of the special judicial magistrate, CBI, in Patiala on February 27, 1998. After Mohinder
Singh received notice from the court on March 18, 1998, he filed a petition
against the CBI report which recommended closure of the case. Through another
petition, Mohinder Singh requested copies of the documents attached in the CBI
investigation file, but the petition was dismissed.
[296]
He challenged that dismissal to the High Court.
[297]
The High Court order stated that when the final report was presented in the Special CBI Court,
"it is open to the petitioner to file a protest petition before the Special CBI Court
and the Special Judge, CBI Court
will examine the petitioner and other witnesses produced by him."
[298]
Mohinder Singh recounted:
I produced 10 of my witnesses within one to two months with
the exception of DSP Gurpreet Singh Gill and Deputy Inspector General Chadda,
who took a year. The DSP denied that I ever came to him and said he did not
conduct an inquiry. But then I produced the affidavit he had submitted in the
High Court describing his inquiry. Why would he have conducted an inquiry
unless I had gone and complained to him?
[299]
Mohinder Singh finished presenting his evidence in December
2000. In his order of April 9, 2003, the special CBI judge rejected the CBI
report and ordered further investigation. The judge further ordered the CBI to
complete its report within three months. The order stated:
The perusal of the closure report shows that the
Investigating Officer has been toeing the line of the Punjab Police Officials.
The Investigating Officer had tried to justify the alleged encounter by the
Punjab Police killing Jugraj Singh and Sukhdev Singh alias Didar Singh. The
perusal of the case diary reveals that Investigating Officer has kept his
investigation confined to the recording of the statement of Police Officials
involved in the encounter and also the Police Officials working in the Police
Station Phase-8 Mohali or he has kept himself busy to establish the criminal
record of Jagraj [sic] Singh and Sukhdev Singh alias Dari to prove that the
encounter was genuine and both Jagraj [sic] Singh and Sukhdev Singh alias Dari
are hardcore terrorist even thoughthis was not a point to be investigated.
[300]
Meanwhile, another CBI officer had started intimidating
witness Kesar Singh. On October 29, 2003, Mohinder Singh submitted a complaint
to the director of the CBI regarding the conduct of the new investigating
officer.
[301]
He sent three reminders, with no reply.
[302]
Mohinder Singh described the alleged actions of the
inspector [name withheld]:
When the case
was before the CBI Special Court
in Patiala, the
[investigating officer] visited Kesar Singh at work and tried to intimidate him
into changing his statement. [He] told Kesar Singh that they would make his
life difficult. Kesar Singh remained steadfast and said he wouldn't contradict
his High Court affidavit. [The inspector] then handed Kesar Singh a summons to
appear in Delhi
for a lie detector test. Kesar Singh told [the inspector] that he could summon
him wherever he liked but he wasn't going to change his statement. Two days
before the test date the inspector called him and told him not to come to Delhi. The police and CBI
tried to implicate Kesar Singh in false cases. He couldn't attend work because
of the harassment and got suspended. He only got reinstated after he filed an
internal departmental appeal.
The next time [the inspector] visited me I told him that I
had made a complaint against him. He said: 'We get thousands of such
complaints. Do you know what we do with them? We throw them in the trash.'
[303]
After receiving several continuances, the CBI filed its
final report in May 2004. In its closure report, the CBI stated that the
professional and personal conduct of Kesar Singh was "tainted," mentioning that
he had been terminated from his job until 2000 and was an accused in three
criminal cases.
[304]
After receiving a protest petition by Mohinder Singh and a reply by the CBI,
the CBI special judicial magistrate requested the CBI to investigate certain
issues further.
Eventually, on February 9, 2006, the special judicial
magistrate accepted the CBI's final report and dismissed the case, discussing
the unreliability of witnesses and the lack of corroboration of the events as
stated to have occurred by Mohinder Singh.
[305]
Eleven years after his son was executed, after filing
countless petitions, pursuing investigations himself, and presenting numerous
witnesses, Mohinder Singh was left with no remedy. Mohinder Singh continues to
demand justice:
I should receive justice. My son won't come back but the
responsible police officers should be punished. But who will punish them? The judiciary?
The judiciary arbitrarily closed my case. Where can I go? It's not like I have
so much money that I can keep litigating this case. That's why I've given up.
After all my running around and legal advocacy, I didn't get anything. The
facts were on my side but it didn't matter.
Numerous sources told us that Jugraj was tortured to death.
Different policemen approached my legal team in court and told them that Jugraj
was tortured to death on the same night he was picked up. There's no law if
police can shoot and kill people at will. What kind of law is that? There are
no human rights here. It's all on paper. There's no truth. It is the rule of
the jungle here.
[306]
E. Attacks on civilians: The killing of Charanjit
Kaur
The case of Charanjit Kaur illustrates how high the stakes
have been for many families. At least five other family members, including one
son no more than 11 years old at the time, also allegedly were tortured by
authorities.
In October 1992, officers in the Criminal Investigation
Agency (CIA) office in Samana (an office hereafter referred to as "CIA Staff
Samana," following local practice) arrested Charanjit Kaur's husband Kulwant
Singh, suspected to be a militant, at a shop in Patran and detained him for 17
days at CIA Staff Samana and four days at CIA Staff Patiala. The police
released him without charge, and then tried to abduct him again a few days
later.
[307]
According to his brother Jaswant Singh, Kulwant Singh then went underground and
became a militant.
[308]
After Kulwant Singh joined the militants, according to his
brother Jaswant Singh, the police established a permanent check-point at their
village and regularly harassed their relatives.
They also confiscated five acres of my mom's farmland, and
harvested and sold her crop for four to five years. The police beat up the
family, ransacked the house, and then threw us out. After being thrown out,
Kulwant Singh's family and my mother moved in with me in Samana.
[309]
The police continued to detain and torture members of the
family, targeting Kulwant Singh's two brothers, his parents, his wife Charanjit
Kaur, and his young son. Recalls his brother:
Our torture typically included binding us in awkward
positions for prolonged periods, drowning us in water, electrocution,
ghotna
[heavy roller],
falanga
[beating of soles of feet], and
tearing our legs apart. Police detained and brutally tortured me over 10 times,
and detained and tortured Charanjit Kaur over fifty times. During one episode,
in 1993 or 1994, police detained Charanjit Kaur for six months and tortured her
regularly. They also detained and tortured her son Baljit Singh alias Daler
Singh, who was only 10 or 11 at the time. The police tried to use Baljit to
identify other people. They would take him to public places, like
gurdwaras
[Sikh house of worship], in
the hope that people would recognize and approach him, and then apprehend those
people. They even detained and tortured my mother and my father numerous times.
They practically detained and tortured everybody in my immediate and extended
family. As a result of all this detention and torture, our extended family
stopped associating with us.
[310]
On November 20, 1995, police in Samana once again tortured
several of Kulwant Singh's relatives, and threatened them with extrajudicial
execution:
[Names of two officers withheld] brutally tortured me and
my brother and also brutally tortured Charanjit Kaur, including severe
beatings, electric shocks, and other indescribable acts. [One of the officers]
threatened my mother Pritam Kaur and Charanjit Kaur that if we did not produce
my brother Kulwant Singh, they would kill someone from our family.
[311]
On November 29, 1995, they executed that threat when around
midnight, [name of officer withheld] and other police officers came in a Maruti
van and entered the family's house by scaling the walls. According to Jaswant
Singh, they had their faces covered and were carrying assault rifles. In an
affidavit, Pritam Kaur recounted the events of Charanjit Kaur's killing:
The police dragged Charanjit Kaur outside and threw her in
the van. I begged them to release her, but they did not listenThat same night,
I went to CIA Staff Samana, and they told me to go to City Samana Police
Station. When I went there, they told me to go to Sadar Police Station. When I
went to Sadar Police Station, the police told me to go to sleep and they would
find out in the morning.
[312]
Jaswant Singh
told Ensaaf:
At 7:30 in the morning, two policemen came to the
neighbor's house and told him to come along with them to identify a body lying
at a tubewell [water well] in the fields of the neighboring village. Once they
reached the tubewell, our neighbor identified Charanjit Kaur's body.
The post mortem was conducted at Civil Hospital Samana, and
Inspector [name withheld] who was present at the time, took into possession the
bullets that were recovered from Charanjit Kaur's body.
Later, we learned about the final moments of Charanjit
Kaur's murder. A farm worker was sleeping at the tubewell when the police
murdered her. The person sleeping at the tubewell overheard the police say to
Charanjit Kaur that 'if we let you go, you won't tell anybody, will you?'
Charanjit said, 'No, I swear, I have a child and I wouldn't do anything to
jeopardize his life. I swear, if you let me go, I won't tell anybody.' The
police said okay but then she only took two steps, looking over her shoulder at
each step, before they shot her with a burst of bullets, and blew off half of
her face.
[313]
After repeated requests by Pritam Kaur, Kulwant Singh's
mother, the police registered a First Information Report (FIR) as FIR No. 247,
dated November 30, 1995. However, she stated in an affidavit that the police
did not transcribe her version of events as she recounted it. Instead, the
police omitted all mention of the role of police officers and described
Charanjit Kaur's murder as an act perpetrated by unidentified individuals. They
also omitted mention of Pritam Kaur's visits to police stations after Charanjit
Kaur was abducted.
[314]
According to Pritam Kaur,[three
officers, names withheld] at gunpoint forced Pritam Kaur and her granddaughter,
who had accompanied her, to place their thumbprints on the FIR.
[315]
In February 1997, the police returned Pritam Kaur's land.
The family submitted a case to the People's Commission on Human Rights
Violations, a private panel of three retired judges established by the
Committee for Coordination on Disappearances in Punjab,
but did not pursue further advocacy. Jaswant Singh told Ensaaf:
We did not pursue any advocacy at the time because we were
afraid and could not afford an attorney and nobody was willing to stand with
us. But we still want justice. The perpetrators should be punished. Charanjit
was blameless; they shouldn't have killed her. [W]hat was the fault of
[Kulwant Singh's] wife, son, and the rest of the family? Her son should also
receive employment so he can make something of his life. And we should receive
compensation for the destruction of our property and the loss of our income due
to the confiscation of our farming land for all those years.
[316]
On August 21, 1999, the family heard on television that the
police had killed Kulwant Singh in an encounter in Uttar Pradesh. The family
does not believe he died in a genuine encounter, because the previous day's
news had reported the arrest of his associates and that Kulwant Singh had
escaped.
[317]
F. Harrassment of relatives: The case of
Mohinderpal Singh alias Pali
The extrajudicial execution of Mohinderpal Singh provides
further evidence of police fabrication of records, in this case post mortem
reports, as well as abuses against other family members.
Mohinderpal Singh was active in leadership roles with the
All India Sikh Students Federation (AISSF). In 1986, he served as the district
vice-president of the AISSF, and was appointed president after the police
killed the serving president. According to an unpublished biography written by
his father Ajit Singh:
He had been president for about four months when, on
September 26, 1986, comrade Darshan Singh Canadian was assassinated in
Mahilpur. This opened the floodgates of government persecution of Mohinderpal
Singh Pali because he was already under the government's notice. His house was
raided on September 27, but he had already left for Gardiwal college for a
membership drive of the federation.
[318]
Mohinderpal Singh went into hiding. The police then took his
father Ajit Singh into detention instead, as well as several close relatives.
Ajit Singh was detained for over one month until October 31, 1986. Meanwhile,
the police charged Mohinderpal Singh with the assassination of Darshan Singh
Canadian.
The police continued to detain and torture members of
Mohinderpal Singh's family until he was killed in November 1987. Ajit Singh
told Ensaaf that he was detained from 15 to 20 times from 1984 to 1987. Two
days before the death of Mohinderpal Singh, the senior superintendent of police
(SSP) detained Ajit Singh. Ajit Singh told Ensaaf:
The SSP said, 'We're only going to leave you alone once you
turn him in. We'll pick up his mother and everybody else until we get him.'
[319]
Click to expand Image
Ajit
Singh, himself a victim of torture, holds a picture of his son who was tortured
and extrajudicially executed by the police.
2007 Ensaaf
On November 3, 1987 Ajit Singh found that the police had
killed his son:
On November 3, 1987 at 6:30 a.m., two Punjab police head
constables came to my house on a private scooter and told me that their 'Sahib'
(station house officer) wanted to see me. The policemen sat me on their scooter
and took me to Mahilpur Police Station. At that time, only the clerk [name
withheld] was present at the station and he directed me to wait in a room.
About 20 minutes later, around 8:00 a.m., I was called out of the room. I saw
that a large police force had assembled in the station's courtyard. [Names of
three officers, withheld], and a deputy inspector general (DIG) were among the
policemen. These officers told me that they had killed two youths in an
encounter at village Barian Kalan, and they asked me to see if my son was among
them.
[320]
Ajit Singh identified his son's body; the identification was
confirmed by the head of his village council. Ajit Singh accompanied the police
to the hospital. He described his son's body and apparent marks of torture, and
recounted his conversation with the doctor who conducted the post mortem:
Around 1:30 p.m., the SHO ordered the sub inspector to take
Pali's body for post mortem at GarshankarCivilHospital.
They transferred Pali's body to another truck and I sat in the back of the
truck with the body and a constable, and SI [name withheld] and the driver sat
in the front.
Before the post mortem, I bought a cloth from the market
and covered the bodies. During the post mortem, I removed the clothes from my
son's body. There were marks of torture on his body. There were six to seven
scars on his chest from electric shocks, and more on his genitals, neck, and
hands. I also saw the bullet wounds; one in his head and several in his chest.
His back was blown out from the bullet exit wounds.
At that time, [name of doctor withheld] was the senior
medical officer at the civil hospital and personally knew me. I was also a
government employee. The doctor told me that the gunshots had been fired at
Mohinderpal from a very close range (four meters), but that he couldn't write
that in the post mortem report. He said that he would have to write that Pali
was shot from 12 meters, and that if he didn't, the police would tear up the
post mortem report and get it done and signed by another doctor. He clearly
told me that in encounter cases, the government doctors always wrote the post
mortem reports so as not to incriminate the police. He said that in every
police encounter, the gunshots were invariably fired from close range. However,
in compliance with the 'instructions,' he always wrote that the shots were
fired from a long distance. And that is what he would do in this case. As the
doctor was telling me this, it was evident from his facial expressions that he
was either scared of the police or he was carrying out secret government
orders.
[321]
Ajit Singh's family cremated Mohinderpal Singh's body at the
village that evening. One of his alleged killers reportedly attended the
funeral.
[322]
The police had accused Mohinderpal Singh and another individual of killing
innocent villagers in the area where the police killed them.
[323]
Ajit Singh later went to the village and spoke to villagers:
At the village, I saw a grove of trees. That place is also
known as 'Babe da Bagh.' There were many tubewells near there. The owners of
those tubewells told me that on the night of the alleged encounter, they were
irrigating their fields when they heard the sound of police vehicles and
gunshots. Before the gunshots, they heard the voice of a youth who said: 'Do
not kill me blindfolded and bound. Do not shoot me in the back.' According to
the people around there, this youth was arguing with the police in a loud voice
and then they heard the sound of gunshots for quite some time. They heard the
shots at 3:45 a.m. According to the villagers, after sunrise, the police
brought the villagers to the site and showed them the bodies. Later, the police
also took the bodies to the village and showed them to the people.
[324]
After his son's death, Ajit Singh became an active worker of
the Akali Dal (Mann) party, and also served as president of a committee of
families of the "disappeared" and killed from Hoshiarpur district. For five
years after Mohinderpal Singh's killing, the police continued to raid his house
and harass the family.
G. The "disappearance" of Ajmer Singh
Ajmer Singh was a 51-year-old primary school government
teacher in village Lasohi. He had three children. According to his wife,
Bhagwant Kaur, the family had no connections with militants. In February 1993,
the Khanna police detained and tortured Ajmer Singh. Recalls his wife:
He told us about the torture he endured. The police took
off his clothes, hung him from his arms tied behind his back, and beat him.
They also applied the
ghotna
and
stretched his legs apart. They tortured him every day. He also said that he
spoke with another boy detained in the cell opposite his. They were able to see
each other and talk to each other through the cracks in the cell doors. The boy
said that he had been picked up from Amritsar,
and his family had no idea where he was, and that if my husband got out, to
please tell his family, because he was afraid that the police would kill him.
[325]
After paying a bribe and exerting political pressure through
a member of legislative assembly (MLA), the family was able to secure Ajmer
Singh's release after a week. The police never recorded his arrest.
Bhagwant
Kaur sits with her daughter, and holds a picture of her "disappeared" husband
Ajmer Singh.
2007 Ensaaf
On March 4, 1994,
Ajmer Singh left school for home at 3 p.m. When he did not return at 3:30 p.m.,
his wife, Bhagwant Kaur, contacted another teacher at the school who said that
Ajmer Singh had been seen going towards his village. His relatives and other
villagers fanned out in different directions to look for him. Bhagwant Kaur
says that the police took her husband away.
Farm workers along the roadside told my father-in-law that
they saw my husband coming on his scooter, but when my husband saw the police
parked on the road, he turned around. The police jeep came after him and forced
him off the road. Then, the police forcibly abducted him; they put him in the
jeep and put his scooter in the tempo [three-wheeled van] and drove off. He was
abducted around 3:15 p.m. My father-in-law then went home and told the rest of
the family what he had learned. In the meantime, an acquaintance of my husband
came to our house and also said that police had abducted my husband.
[326]
The family contacted the MLA who agreed to help them locate
Ajmer Singh. Bhagwant Kaur told Ensaaf how she saw Ajmer Singh in police
custody:
We went to various police stations to locate my husband,
but everybody denied having custody of him. Then, about two to three days
later, around March 6, we saw him at CIA Staff Malerkotla. We asked some police
officers to release him. They said: 'Don't worry. We'll release him.' We asked
a police employee who those officers were, and he replied that they were [names
of officers withheld] .
We went to Malerkotla CIA Staff again the next day. We met
the same officers, and they said again the second day that they would release
him. By chance, on the way out, we saw Ajmer Singh in a room, but we were too
afraid to speak out and say anything. He wasn't wearing a turban and it looked
as if he had been tortured.
[327]
On both days, Bhagwant Kaur saw her husband's scooter at the
police station.
[328]
The next day, when Bhagwant Kaur and her father-in-law returned to CIA Staff
Malerkotla, the same police officers denied custody of her husband. His scooter
was also not there.
[329]
Her father-in-law continued to pursue leads, but they never saw Ajmer Singh
again.
In April 1994, Bhagwant Kaur attended a meeting organized by
Jaswant Singh Khalra and the Human Rights Wing of the Akali Dal, where she
learned about his investigations into mass cremations and advocacy on behalf of
families of the "disappeared" and killed. Bhagwant Kaur's father-in-law Jagir Singh
filed a complaint with the National Human Rights Commission. The Commission
reviewed his complaint on October 24, 1994, and wrote to Jagir Singh on
November 2, recording the Commission's direction:
The petitioner alleged that on 4.3.1994 [March 4, 1994] his
son Ajmer Singh had been taken away by the police and has since then not been
found out. A notice was issued to the State Government on the complaint. It has
been stated that no person by the name of Ajmer Singh had ever been arrested by
the police and, therefore, the question of not accounting for the custody of
the person does not arise. The SSP, Ropar, has also denied taking into
possession of any Scooter and release thereof later on by the Police. In such
circumstances, no further action is called for.
[330]
Based merely on the police denial, the NHRC dismissed Jagir
Singh's complaint. It did not pursue any further investigation. In 1996, Ajmer
Singh's family filed a habeas corpus petition:
In 1996, we filed a Habeas Corpus Petition, Cr.W.P. No. 963/1996,
in the Punjab and Haryana High Court
Chandigarh through Advocate Ranjan Lakhanpal. The High Court ordered the
sessions court to conduct an inquiry within three months. The sessions judge in
Sangrur, Manmohan Singh Bedi, completed his inquiry within three months, and
submitted a report favorable to our case to the High Court. The High Court then
ordered the Malerkotla Police to register FIRs against the implicated officers.
During the inquiry process, the police would come to my
home and try to persuade me to withdraw the case. I believe they even got me
transferred from my job to make it difficult for me to attend the hearings.
We went to the police station and got the FIRs registered.
A deputy superintendent of police (DSP) from Malerkotla conducted the
investigation, which took three to four months. They would summon me to go to
the police station to give my statement. I went about four times. In his final
report, the DSP exonerated the police. The DSP had obtained statements from
about 18 people from Lasohi village saying that no abduction had taken place.
It's no surprise that he exonerated his colleagues.
[331]
Bhagwant Kaur performed her husband's last rites in December
2006. After receiving no proof of what had happened to her husband, she
resolved in her mind that he must be dead. She told Ensaaf how she lost the
ability to pursue her husband's case:
I don't have the capacity to pursue the case anymore. My
father-in-law is now deceased and I can't do it without him, and I don't
believe that the witness will cooperate. Now, God will do the final
accounting.
My husband was such a hard worker, doing both the school
work and farming. He was
Amrithdhari
He would help every person and every creature, even giving food and water to
stray dogs. The perpetrators should have been punished and I should have been
given justice.
[332]
H. Dispiriting delays: The killing of Kulwinder
Singh alias Kid
It has been 18 years since Tarlochan Singh first began
pursuing a case against the police officers who allegedly killed his son,
Kulwinder Singh alias Kid. During this time, key witnesses have died, others
have been intimidated by police, and evidence has been destroyed. Further,
senior officers have not been charged with their role in the killing, despite
apparent superior responsibility for the crime.
Kulwinder Singh was 20years old
at the time of his killing, and an active participant in the activities of the
All India Sikh Students Federation (AISSF). The police first began to detain
and torture Kulwinder in 1985, even detaining family members when they could
not apprehend him. The police also filed two cases against him. Kulwinder Singh
went into hiding to avoid the repeated police raids. In April 1987, the police
implicated Kulwinder Singh in another estimated 25 cases after detaining and
torturing him. By September 1987, Kulwinder Singh had been acquitted in these
cases.
Kulwinder Singh disappeared on July 22, 1989, in Mohali.
Tarlochan Singh, his father, told Ensaaf:
On that day, I received an anonymous call at the school
where I worked as principal. The caller informed me that House Number 1752,
Phase-V, had been cordoned off by police in civil clothes since 9:30 a.m. I
received this call because I was serving as an active member on the Committee
Against Police Excesses. The committee, which reported abuses to Ajit Singh
Bains, chairman of the Punjab Human Rights Organisation, Chandigarh, was formed to highlight and
protest against police abuses in Kharar. My active involvement in this
committee had brought me into direct confrontation with the police several
times. The committee used to meet daily at 2 p.m. I informed the other members
about the anonymous caller and we decided to proceed to Mohali in a jeep.
As we entered the street where the house was located, from
a distance of about 30 yards, we saw Kulwinder Singh and another youth enter
the specified house. We also saw three vehicles parked in the street, one of
them a gypsy. We saw Kulwinder Singh open the wire-net door of the house, while
the other youth stood in the courtyard of the house. Immediately, seven to
eight men in civilian clothes came out of the garage and pounced on Kulwinder
Singh. They overpowered him and threw him to the ground, covering him with a
blanket. The other youth tried to escape by jumping over the wall of the house,
but persons stationed on the rooftop shot and killed him. My colleagues and I
heard three gunshots fired. Kulwinder Singh was taken to the garage where the
landlady had been detained since morning. Kulwinder Singh was then bundled into
the gypsy and all of the cars sped away, while three to four policemen in
civilian clothes stayed behind with the dead body.
[333]
Tarlochan Singh did not see Kulwinder Singh again.
Tarlochan Singh visited the Phase-I Police station with his
colleagues, but they were not allowed to enter. After waiting two to three
hours, they went to send telegrams to the chief justice of the Punjab and
Haryana High Court, governor of Punjab, the SSP of Ropar, and the director
general of police of Punjab. They next went to
the office of the daily
Punjabi Tribune
where a reporter informed them that the police had issued a press release
stating that Palwinder Singh Pola had been killed in an encounter and Kulwinder
Singh had escaped. He gave the reporter his version of events, and the
Punjabi Tribune
and
Ajit
published that as well.
Two days later, on July 24, human rights attorney Kulwant
Singh and his wife visited Tarlochan Singh. Kulwant Singh had represented
Kulwinder Singh in the cases against him, and told Tarlochan Singh that he had
identified Kulwinder Singh's dead body at the morgue at RoparCivilHospital. The doctor who
conducted the post mortem also stated that one of the bodies of two
unidentified youth killed the night of July 23, 1989, resembled Kulwinder
Singh. The families did not receive the bodies. Justice Ajit S. Bains,
Inderjeet Singh Jaijee, and Baljit Kaur tried to reclaim Kulwinder Singh's body
after receiving permission from the district commissioner, but when they
reached the hospital, the bodies were gone. The police have continued to
maintain that Kulwinder Singh escaped.
On September 22, 1989, Tarlochan Singh filed criminal writ
petition No. 3342/89 before the Punjab and
Haryana High Court. That began a process of multiple inquiries:
During court, the police admitted that ASI Amarjit Singh
raided House No. 1752, Phase V Mohali, on July 22, 1989, and stated that
Palwinder Singh Pola had been killed and Kulwinder Singh had escapedThe writ
petition was initially heard by Justice SS Grewal and he directed the chief
judicial magistrate (CJM) at Ropar to hold an enquiry.
On June 18, 1990, Justice R.S. Mongia of the High Court
directed the CJM Ropar to submit an inquiry report in three months on the issue
of whether Kid was abducted by police. Inspector Surjit Singh and ASI Amarjit
Singh petitioned the High Court to transfer the case to Chandigarh, alleging that no advocate was
willing to take up their case because of militant threats.
I learned of the stay request from the CJM Ropar at the
second hearing. The CJM told me that I'd have to go to the High Court to
challenge the stay petition. He further told me that the police were pressuring
him to do things in their favor. He refused to give into their pressure,
however, and told the police that he would do justice.
My lawyers were not present to argue against the stay
petition, but I told the High Court judge that I could speak for myself. I told
the judge about my conversation with the Ropar CJM: the police were seeking a
transfer because the CJM Ropar refused to succumb to their pressure. Hari Singh
Mann was the counsel for the police. I said I had no objection to the case
being transferred to Chandigarh.
However, the case should not be transfered to a CJM requested by the police, but
some other judge. The High Court agreed with me, and said that the inquiry
would be conducted by Tara Singh Cheema, a sessions judge in Chandigarh.
[334]
The sessions judge began the inquiry but was transferred.
The second judge was promoted to the High Court. The third judge gave
continuances every two to three months, failing to develop the inquiry any
further. A year later, he was also promoted to the High Court. The fourth judge
M.S. Lobhana completed the inquiry. Tarlochan Singh recounted:
The inquiry report was dated April 29, 1995, and the
sessions judge accepted my version of events. He said that my version was fully
corroborated by the landlady Dr. Amarjit Kaur, whose presence at the house was
not disputed by the police.
The High Court accepted the inquiry report of Justice
Lobhana in total and ordered the CBI to conduct an inquiry and then, if
appropriate, register cases. The CBI took about three years to complete its
inquiry, starting in 1996. The CBI, after completing its investigation, registered
cases against 37 officials. Seven were in the first column-the main accused
After analyzing fingerprints taken from Kid's previous
detentions and prints from the post mortem report, the CBI report concluded
that police had killed Kid.
[335]
After receiving the sessions judge's report, Tarlochan Singh
had filed criminal petition No. 329/1995 asking for murder cases to be
registered against Inspector Surjit Singh Grewal and ASI Amarjit Singh, with a
CBI investigation, as well as compensation of 500,000 Indian rupees to the
immediate family. The High Court justice directed the CBI to file the necessary
charge sheet after investigation and ordered 300,000 Indian rupees as
compensation.
Seven years after he had filed the writ petition, charges
had not yet been filed. Tarlochan Singh described the police abuse he suffered
during those years:
While the case was proceeding, I used to receive
threatening phone calls. The caller would say that they had killed thousands of
boys and thrown them into canals, and they would also do that to Kulwinder
Singh's wife, Kid, or me and my wife. I would tell the callers that they knew
where I lived and they could come and get me.
[336]
The High Court asked the central government for approval to
bring a case against state officials. After some delay, the sanction was
ultimately granted. The police challenged the sanction, but the High Court
dismissed their petition. Tarlochan Singh described the trial, and how the
police officers remain free:
The officers were never arrested or suspended. They filed
bail applications, and the sessions judge initially denied their applications.
They appealed to the High Court and the High Court directed the police to go
back to the Sessions Court within 15 days. This time, for reasons known only to
the sessions judge, he granted bail.
The trial has been proceeding since 2002, with very little
evidence being recorded at each hearing, and with two to three months between
hearings. During this time, key witnesses have died. All were members of the
committee which conducted inquiries into the police excesses and witnessed the
abduction.
In this time, the police have also tried to bribe Dr.
Amarjit Kaur, but she still won't say that Kid escaped from her residence.
Surjit Singh Grewal has been promoted to superintendent of police. Earlier, he
was an inspector at CIA Staff Patiala. Many of the other guilty policemen have
retired. They should receive life imprisonment. When they come to court, they
touch my knees and ask me to withdraw my case. This is a mockery of justice.
Justice has been murdered by Justice.
[337]
Eighteen years after Kulwinder Singh's murder, the case
continues with little headway.
VI. Remedial Framework to Combat
Impunity
Impunity arises from a failure by States to meet their
obligations to investigate violations; to take appropriate measures in respect
of the perpetrators, particularly in the area of justice, by ensuring that
those suspected of criminal responsibility are prosecuted, tried and duly
punished; to provide victims with effective remedies and to ensure that they
receive reparation for the injuries suffered; to ensure the inalienable right
to know the truth about violations; and to take other necessary steps to
prevent a recurrence of violations.
-Principle 1, Updated Set of Principles for the Protection
and Promotion of Human Rights through Action to Combat Impunity (2005)
Combating impunity
This chapter proposes detailed
recommendations to the Indian government to ensure an effective remedy for all
persons whose rights or freedoms were violated in Punjab
during the counterinsurgency operations starting in the early 1980s. These
recommendations aim to provide redress for the gross violations of human rights
that occurred and address the institutionalized impunity that has prevented
accountability. The Supreme Court also has the power to implement these
recommendations as the Punjab mass cremations
case and other cases reach the court.
The cases discussed above highlight several issues that must
be addressed in any remedial framework in order for India to fulfill its international
legal obligations. The obstacles to combating impunity include, among other
issues:
a)
The
reluctance of the CBI to properly investigate and prosecute cases of abuse,
particularly those implicating senior officers in the police;
b)
The
failure of judicial and state institutions, cited by India as pillars of its democracy,
to provide justice and their tendency to ignore crimes committed systematically
with government complicity;
c)
The
use of compensation to avoid genuine accountability;
d)
The
destruction and fabrication of evidence by the police; and
e)
The
intimidation and abuse of witnesses and victims' families by the authorities.
In addition, as discussed in the
legal standards chapter above, flaws in existing laws and
regulations-specifically the requirement for prosecution sanction (governmental
approval to bring a case against state officials) and the failure to
incorporate gross human rights abuses and widespread and systematic crimes into
the penal code-are also obstacles to prosecution and should be repealed or
reformed.
The framework proposed in this chapter addresses the rights
to knowledge, justice, and reparations of the victims' families. In order to
provide an effective remedy and combat impunity for these gross violations of
human rights, we recommend a commission of inquiry, a special prosecutor's
office with fast track courts, and a comprehensive reparations program.
Right to knowledge: Commission of inquiry
India
has a rich history of people's commissions and governmental commissions of
inquiry.
[338]
However, in the Punjab and Sikh context, both
of these mechanisms have failed to properly and thoroughly investigate and
acknowledge state abuses. The People's Commission on Human Rights Violations in
Punjab, a civil society initiative of the Committee for Coordination on
Disappearances in Punjab, was banned by the Punjab
and Haryana High Court after one sitting.
[339]
Government-appointed commissions of inquiry on the 1984 massacres of Sikhs
glossed over the massacres and failed to uncover the system through which the
abuses were perpetrated, or assign full responsibility to the planners and
organizers.
[340]
Thus, it is necessary that protections are built-in to ensure that any future
commission operates independently and with credibility. The
internationally-endorsed Impunity Principles, adopted by the UN Commission on
Human Rights (now the Human Rights Council), provide guidance on international
law and best practices on commissions of inquiry, specifically truth
commissions.
[341]
In order to redress the right to knowledge, the government
of India should establish a commission of inquiry to investigate the gross
human rights violations that occurred in Punjab from at least 1984 to 1995
during the counterinsurgency operations. The commission should:
Investigate, clarify, and formally acknowledge
incidents of torture, "disappearances," and extrajudicial executions, among
other abuses perpetrated by Indian security forces during the Punjab
counterinsurgency, in order to build a full and accurate record of abuses;
Outline institutional responsibility and
identify individuals at senior levels involved in planning, ordering, being
complicit in, and perpetrating the abuses;
Make appropriate recommendations about the content,
criteria, and procedures for issuing reparations, and identify steps to prevent
the recurrence of violations;
Possess the powers to subpoena documents and
individuals and have full access to government archives;
Be composed of independent, impartial, and
competent individuals;
Hold public hearings on abuses by all parties
during the counterinsurgency period and have the power to make public
statements during and after its inquiry, including on the government's response
to the commission's recommendations;
Provide witness protection as necessary and
conduct outreach to witnesses and family members of victims;
Ensure the inquiry is conducted in a timely
manner, such as by establishing its operations within six months, conducting
its investigations in one year, and completing its report within six months
following the conclusion of investigations;
Publish its final report and disseminate it
widely; and
Refer cases to the Special Prosecutor's Office
(SPO) for criminal investigation.
A society's right to know the truth about past events
requires an investigation capable of identifying perpetrators and enabling
sanctions against them, as well as an acknowledgment by the state of the abuses
suffered, a public accounting of institutional participation, and access to
archives regarding the abuses. The state must conduct investigations into human
rights violations "effectively, promptly, thoroughly and impartially."
[342]
The investigations should particularly aim to secure "recognition of such parts
of the truth as were formerly denied,"
[343]
such as the identity and fate of the disappeared, the systematic nature of the
abuses, the extent of violations, and the role of senior officials in
perpetrating the abuses. To address the abuses committed in Punjab, the
commission should focus on the rights violations experienced by individual
victims and discard the restrictions and classificatory scheme applied by the
NHRC in the Punjab mass cremations case.
The commission's terms of reference should be confirmed
after public consultations, especially after incorporating the viewpoints of
the victims and family members.
[344]
The Committee for Information and Initiative on Punjab, for example, has argued
in the Punjab mass cremations litigation that the government must investigate
the entire context of abuses relating to the "disappearances" and extrajudicial
executions, such as the torture and trauma suffered by family members of the
disappeared and prior experiences of abuse by the decedent.
[345]
In the medical study conducted by Physicians for Human Rights and the
Bellevue/NYU Program for Survivors of Torture, 48 percent of the respondents
stated that the victim of the extrajudicial execution had experienced prior
episodes of custodial torture.
[346]
Further, in 74 percent of the cases, police arrested family members of the
decedent; in 56 percent of the cases, police tortured family members.
[347]
These abuses all comprise gross violations of human rights that trigger
international legal obligations.
The selection of the individuals who will serve as
commissioners is crucial to the commission's perception as a transparent and
credible body, and its success in bringing to public attention the full extent
of the human rights violations committed. The commission should include experts
in international human rights law, who are independent and not associated with
the institutions implicated in abuses during the counterinsurgency operations,
with a fair representation of gender and religious diversity. The selection
process should be public and inclusive, and solicit the active participation of
victims and their family members; selection should not be left to a private
panel of decision-makers.
[348]
Public proceedings of the commission will increase public
confidence
[349]
and insure transparency. However, witnesses and victims must have the option to
request partial or wholly confidential hearings in their individual case, in
order to protect themselves from retaliation. If possible, provision should be
made for limited access to such closed sessions in order to monitor compliance
with human rights standards.
[350]
The commission should rely on testimony from witnesses and
family members of victims, government and police records, and its own
investigations to reach its conclusions. Refusal of the police or other state
agencies to participate should not prevent the commission from conducting its
investigations.
[351]
The commission must conduct these investigations using its own staff, rather
than relying on the police. As discussed in this report, the history of the Punjab
mass cremations litigation and the experiences of families pursuing legal cases
have amply demonstrated that government agencies suffer from a conflict of
interest that has led to their omitting key perpetrators and faking evidence in
investigations, and also participating in intimidation of witnesses and
complainants, among other questionable and illegal practices. In order to
facilitate the collection of testimony and public education about its work, the
commission should establish offices throughout Punjab
to allow for "'walk-in' availability."
[352]
The commission can further pursue partnerships with universities and human
rights organizations abroad, to facilitate the collection of testimonies from
refugees, including participation through video-conferencing.
[353]
The government must ensure the preservation of and access to
archives that would provide information on the human rights violations.
[354]
Access to confidential records has provided crucial information to
accountability efforts in other countries and indicated the government's
commitment to transparency.
[355]
The Impunity Principles call for the application of technical measures and
penalties to "prevent any removal, destruction, concealment or falsification of
archives."
[356]
The government must provide access to police records, such as First Information
Reports, character rolls that record disciplinary actions taken against
individual officers,
[357]
records of prosecutions and convictions, as well as newspaper reports and press
releases on killings and police actions, among other documents. R
easonable restrictions should be imposed to
safeguard the privacy and security of victims and other individuals.
The commission should use the
balance of probabilities standard in making findings on specific cases. In their
brief submitted to the NHRC on December 10, 2003, Human Rights Watch and
Harvard Law Student Advocates for Human Rights discussed the unfair evidentiary
burdens families face in proving "disappearances" and extrajudicial executions,
because the state often exclusively controls the evidence necessary to prove
the violations, which it rarely turns over. Because of these difficulties,
international human rights bodies have relaxed evidentiary standards and held
circumstantial and testimonial evidence, including hearsay, to be admissible
before such bodies. Such evidence can shift the burden of proof to the state to
refute the allegations of violations, failing which it is presumptively liable.
[358]
The commission should identify and name, in its final
report, the individuals responsible for planning and executing the gross human
rights violations that occurred during the counterinsurgency operations
starting in 1984. As a leading commentator on truth commissions has argued:
"[T]elling the full truth requires naming persons responsible for human rights
crimes when there is clear evidence of their culpability. Naming names is part
of the truth-telling process."
[359]
The commission should clarify the different kinds of
responsibility involved, such as ordering or executing abuses versus
implementing policies that facilitated abuses.
[360]
The commission should focus on naming the individuals who bear the greatest
responsibility, including superior responsibility.
In order to protect the due
process rights of the accused, the commission should notify individuals about
the allegations against them and that the commission intends to name them in
its public report, and afford them with an opportunity to respond to the
allegations.
[361]
This process is similar to Section 8(b) notices in India's Commission of Inquiry Act.
However, the commission should ensure that effective procedures are in place to
ensure that those bringing accusations are not placed at risk.
[362]
The commission must provide protection to victims and
witnesses who participate in its hearings. Some families visited by Ensaaf,
whose cases initially received a measure of support from the government,
expressed that after several years they compromised with the police because
they could not sustain their cases under police intimidation, abuse, and
prolonged legal proceedings. The commission should further provide
psychological and medical support to those who testify, in order to help
witnesses who develop secondary trauma from testifying.
[363]
For further protection, the courts must prohibit police and their agents from
all contact and communication with victim families and their relatives and
attorneys, with the provision of strong penalties for any violations.
A time frame of two years would give the commission
sufficient time to thoroughly investigate the abuses, provided it has adequate
resources. A deadline is needed in order to prevent the excessive delay that
has characterized the Punjab mass cremations
litigation before the NHRC, with the repeated reframing of issues. A delay will
decrease the commission's credibility among victims' families, as some have
already been struggling for truth and justice since the early 1980s. Such a
time frame will not hamper the commission's work. Argentina's truth commission, for
example, took over 7,000 statements in nine months.
[364]
The commission should hand its case files directly to the
Special Prosecutor's Office (SPO) in order to facilitate the investigation of
cases.
[365]
For example, Argentina's National Commission on Disappeared Persons (La
Comision Nacional Sobre la Desaparicion de Personas, CONADEP) issued its report
in 1984; after CONADEP provided its files to the judicial system, the judiciary
was able to quickly build cases against alleged senior perpetrators so that
trials began 18 months after the government transition, including the operation
time of the commission.
[366]
Similarly, in Mexico,
about 270 of the 320 cases initially investigated by the SPO were previously
investigated by the Mexican truth commission. The SPO was directly able to
incorporate documents collected by the truth commission, as long as the records
were authenticated according to law.
[367]
Thus, de novo investigations were not required. This is important in the Punjab context where the judicial process has led to repeated
and redundant investigations, prolonging trials and facilitating the
destruction of evidence, as demonstrated by Tarlochan Singh's 18-year struggle
for justice for his son Kulwinder Singh.
A truth commission cannot be a substitute for prosecutions.
[368]
The commission will serve a crucial truth-telling function, which prosecutions
alone cannot fulfill because of the high standard of proof required for
criminal cases. Thus, the truth commission will provide official acknowledgment
to families in cases where official wrongdoing cannot be established at the
level of criminal culpability, but where the evidence nonetheless is sufficient
to establish a record of "disappearance."
Right to justice: Special Prosecutor's Office
The International Covenant on Civil and Political Rights
requires India
to ensure that those responsible for gross violations of human rights are
brought to justice.According to the
Human Rights Committee's General Comment No. 31, "As with failure to
investigate, failure to bring to justice perpetrators of such violations could
in and of itself give rise to a separate breach of the Covenant."
[369]
Prosecutions through India's existing criminal justice
system have failed to lead to accountability. A study of 90 habeas corpus cases
filed on behalf of the "disappeared" demonstrated that the majority of the
cases were dismissed by the Punjab and Haryana High Court before reaching the
point where charges would be filed. Police denials, disputed technical facts,
claims of a lack of police motive, and the lack of supporting affidavits, which
families had difficulties gathering because of police abuse, among other issues,
were reasons the court used to dismiss the petitions and deny the reality of abuses.
[370]
Petitions were also impermissibly dismissed because of a delay in filing,
even though there is no statute of limitations for filing petitions regarding
violations of fundamental rights.
[371]
As demonstrated in the case studies discussed in this
report, several problems have plagued criminal trials, ranging from pro-police
biases in the investigating and prosecuting authority and the CBI's failure to
charge senior police officers; reliance on police officers to conduct inquiries
into their colleagues' actions; redundancies in the criminal process that lead
to lengthy delays and the destruction of evidence; and falsification of police
and government records to cover up abuses. Police harassment has intimidated
witnesses into turning hostile or refusing to provide evidence, and also caused
complainants to withdraw cases after repeated abuses.
In order to fulfill its international obligations to redress
the right to justice, the Indian government should create a Special
Prosecutor's Office (SPO) and fast track courts that will:
Investigate "system crimes," including command
structures and disciplinary practices, to identify the institutions and
individuals that perpetrated the mass state crimes that occurred during the
counterinsurgency;
[372]
Prosecute the officials most responsible for the
"disappearances," extrajudicial executions and other abuses, including
officials with superior responsibility who knew or should have known about the
pattern of abuses but took no action;
In accordance with Indian law and due process,
allow victim families to select private human rights attorneys who will work in
conjunction with the SPO in conducting the prosecutions;
Constitute fast track courts that will hold
daily hearings in these cases; and
Make provisions for transcripts or
audio-recording of trials in order to increase transparency and accountability.
The government should also reform the Indian criminal
procedure to remove the requirement of "prosecution sanction" and introduce
"disappearance" as a crime in India's
penal code. The CBI should further publicly release detailed information on all
arrests, prosecutions, and convictions against security forces for human rights
violations up to this point.
By focusing on system crimes and the most responsible
officials, India
will be able to more efficiently manage resources in the face of massive state
crimes. As one commentator writing about the special prosecutor's office in Mexico states:
This is important for three reasons. First, a series of
prosecutions of low-level perpetrators, however morally and legally culpable,
runs the risk of giving the appearance of scapegoats being sacrificed to
protect those in positions of power. Second, prosecuting those with the
greatest responsibility offers the possibility of conveying to those victims
whose cases cannot be directly included in a prosecution strategy that those
responsible for the patterns of human rights abuses have been brought to
justice. Even though a particular case may not reach trial, the victim may
derive some moral satisfaction from knowing that those responsible for ordering
or organizing these crimes have been held accountable. Third, if individuals
who hold positions of responsibility within state institutions have abused
their power by directing or permitting serious human rights violations,
institutional legitimacy can be more successfully reconstructed if it is shown
that individuals who abuse responsibility will be held accountable.
[373]
By focusing on system crimes rather than isolated incidents,
the SPO can bring several cases as evidence to support a single charge,
allowing for greater participation by victims and decreased exposure to police
harassment.
[374]
While the commission of inquiry completes its investigations
and prepares the recommendation of cases for the SPO, the SPO should engage in
a consultative process and establish and staff itself. The SPO should begin
operations after the commission has transferred its files and endeavor to
conclude trials promptly in order to prevent eroding of the public trust and
the desire to cooperate.
[375]
However, the government should not set a termination date for the court because
that would create an incentive for the accused to delay the prosecution, or
cause the court to infringe upon the rights of the accused.
The SPO should incorporate outreach to families of victims
into its work, in order to re-establish faith in the judiciary. Thus, it should
visit Amritsar and other major cities in Punjab and create a network of district coordinators.
[376]
Through regular case updates and seminars, the SPO should aim to increase
victims' families' awareness of developments in the prosecutions and their
understanding of why the SPO has selected certain prosecutions. The SPO should
also solicit feedback and work to address any misconceptions.
[377]
In order to increase public faith in the SPO's work and
transparency, the SPO should provide full transcripts of hearings,
[378]
as well as place major decisions and motions online. In accordance with Indian
law and due process, the SPO should also allow the participation of private
attorneys selected by victim families in the prosecution of cases.
[379]
Mrs. Khalra's attorneys played an essential role in the CBI's prosecutions of
the officers accused of her husband's abduction and murder. Among other
contributions, they ensured the inclusion of key witness SPO Kuldip Singh, as
well as the revision of charges to include murder charges.
Right to reparations: A comprehensive reparations
program
The ICCPR requires that states make reparation to
individuals whose rights have been violated.
[380]
The Indian government should provide victims and their beneficiaries with
reparations through a prompt and effective procedure.
[381]
Unlike the procedure adopted by the National Human Rights Commission in the
Punjab mass cremations case-where families were not allowed to directly
participate, confirmations of eligibility for compensation depended on police
approval, and arbitrary restrictions excluded many victims and
beneficiaries-victims and civil society "should play a meaningful role in the
design and implementation" of the reparations program.
[382]
The Reparations Principles, adopted by the UN General
Assembly, include the following components of reparations: restitution,
compensation, rehabilitation, and satisfaction and guarantees of
non-repetition.
[383]
Reparations are premised on the principle of non-discrimination, where all
victims who have suffered like violations receive like reparations.
[384]
Further, reparations "should be proportional to the gravity of the violations
and the harm suffered."
[385]
In order to remedy violations of the right to life, the
Indian government should, among other actions:
Provide compensation to victims and their
beneficiaries based on the spectrum of rights violations they have suffered,
such as enforced disappearance, torture, cruel, inhuman, or degrading treatment
or punishment, arbitrary detention, extortion, and destruction of property;
Provide health care assistance for physical and
mental harm incurred by victims and their families;
Expunge criminal records of false cases filed
against victims and their family members;
Determine the final fate of the "disappeared"
[386]
and
Develop memorials and monuments that commemorate
and acknowledge the victims of the counterinsurgency abuses.
The commission of inquiry should be empowered to provide
reparations as it determines, although a separate administrative body should
dispense the reparations.
[387]
Two of the challenges that face reparations programs are the
completeness or ability of the program to cover all potential beneficiaries
through its selection of rights violations, evidentiary standards, and
structural procedures, as well as the comprehensiveness of the program, or the
harms it attempts to redress.
[388]
The gross human rights violations perpetrated during the counterinsurgency
included several types of violations, ranging from "disappearances" and
extrajudicial executions, to torture, arbitrary detention, extortion, and
destruction of property. Further, one victim typically suffered numerous
violations. Consultations with victims' families and civil society could help
determine the rights violations covered.
According to the Reparations Principles, compensation should
be provided for any economically assessable damage resulting from gross
violations of human rights, such as physical or mental harm, moral damage, lost
opportunities, and material damage and loss of earnings.
[389]
The PHR/Bellevue study, for example, demonstrated that in 35 percent of the
cases, respondents described permanent physical disabilities or injuries.
[390]
Nearly 40 percent of the individuals interviewed "revealed symptoms consistent
with a diagnosis of Major Depression" at the time of the evaluation, and 33
percent reported current symptoms consistent with post-traumatic stress
disorder.
[391]
Further, nearly 80 percent of the individuals had "significantly elevated"
scores on an index that measures overall psychological distress.
[392]
Thus, many victims' family members continue to suffer mental and physical
trauma, over ten years after the violations occurred.
The procedure for securing reparations must also be
developed in consultation with victims' families, so that it does not further
alienate victims. The effectiveness of the program will be determined by its
accessibility. Lessons can be drawn from the failures of the Punjab mass
cremations case, as well as the negative experience with procedures instituted
for victims of the 1984 Bhopal
gas disaster:
[Bhopal
c]laimants had to pass through several stages in order to secure compensation:
registration; identification (requiring proofs of identity, residence and
medical records to prove gas effects); notification of their hearing;
categorization; adjudication and, for an unfortunate few, the appeals process.
Survivors say that the process involved innumerable trips to hospitals,
government offices, lawyers, banks and the court. They said they had to stand
for hours in long lines and endure apathy, indifference, suspicion and
corruption at the hands of employees, brokers, middlemen and lawyers.
[393]
Victims' families should be allowed to file an appeal if
they are denied reparations, with a time limit on the resolution of their
cases.
[394]
The commission should further provide concrete
recommendations on guarantees of non-recurrence of violations. The Indian
government should, with appropriate due process safeguards:
Remove officers and public servants from power
who have been proven to have violated human rights, either through direct
participation or superior responsibility;
Remove officers and public servants from power
who have been proven to have violated ethics, regulations, practices, or
policies that facilitated human rights violations;
Revise the penal code, incorporating
"disappearance" as a crime with punishment commensurate to the crime;
Enact legislation ensuring that no public
official, including a military, police, law enforcement, or other state agent
who has committed violations of human rights be relieved of personal
responsibility by amnesties, legal immunities or indemnities. Other impediments
to the establishment of legal responsibility should also be removed, such as
the defense of obedience to superior orders or unreasonably short periods of
statutory limitation;
Repeal all legal provisions providing effective
immunity to the security forces. These include Section 45 of the Criminal
Procedure Code, which prohibits the arrest of members of the armed forces
without permission of the central government, and Section 197(2) of the
Criminal Procedure Code, which prohibits the prosecution of members of the
armed forces without permission of the central government;
Invite the United Nations Special Rapporteur on
Torture, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, the UN Working Group on Enforced and Involuntary Disappearances,
and the UN Working Group on Arbitrary Detentions to India to investigate and
report on the situation, and implement these agencies' recommendations in a
timely manner; and
Ratify the Convention against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment.
Acknowledgements
This report was researched and written by Jaskaran Kaur and
Sukhman Dhami, co-directors of Ensaaf. The report was edited by Meenakshi
Ganguly, senior researcher in the Asia Division of Human Rights Watch, and Brad
Adams, executive director of Human Rights Watch's Asia Division. Jasmine
Marwaha, program associate at Ensaaf, provided additional review and editing. Human
Rights Watch legal review was done by James Ross, Legal director; program
review by Joe Saunders, deputy program director. Report production was
coordinated by Andrea Holley.
Ensaaf would like to thank the following people for their
generous assistance: Paramjit Kaur Khalra and Sardar Mohinder Singh of the
Association of Families of the Disappeared in Punjab; human rights attorney
Rajvinder S. Bains; and Ram Narayan Kumar, Nitya Ramakrishan and Trideep Pais
of the Committee for Information and Initiative on Punjab.
We also thank the journalists, lawyers, and individuals who provided invaluable
assistance and logistical support. Above all we would like to express our
gratitude to the families of the "disappeared" and extrajudically executed in
Punjab whose remarkable courage, honesty, and leadership we hope will one day
end impunity and achieve justice in India for mass state crimes.
Ensaaf gratefully acknowledges the support of Echoing Green.
[1]
Ensaaf, "Sardar Jaswant Singh Khalra,"
video report, 2006, http://www.ensaaf.org/docs/khalravideo.php (accessed April
13, 2007). This video is an edited recording, with subtitles, of a speech Khalra
gave in April 1995 in Toronto,
Canada,
regarding his human rights investigations.
[2]
Office of the
Registrar General, India, "The First Report on
Religion: Census of India," 2001,
2007).
[3]
Ramachandra Guha, India
After Gandhi
, (New Delhi: Picador), 2006, pp. 557-562. See
also,
Human Rights Watch,
India
-Punjab in Crisis: Human Rights in India
(New
York: Human Rights Watch, 1991), pp. 170-204.
[4]
According to official estimates, although these are disputed, more than 20,000
people were killed during the Punjab conflict
including 11,690 civilians, 1714 policemen and 7,946 militants. Many more are
still missing, suspected to be victims of enforced disappearances perpetrated
by security forces.
[5]
A gurdwara is a Sikh house of worship.
[6]
Ram Narayan Kumar, Amrik Singh, Ashok Aggrwal, and Jaskaran Kaur,
Reduced to Ashes: The Insurgency and Human
Rights in Punjab
(Kathmandu: South Asia
Forum for Human Rights, 2003), p. 35.
[7]
Guha
, India
After Independence
p. 566.
[8]
Mark Tully and Satish Jacob,
Amritsar:
Mrs. Gandhi's Last Battle
(London: J. Cape, 1985), pp. 184-5.
Ram Narayan Kumar, "The Ghalughara: Operation
Blue Star-A Retrospect,"
Sikh Review
(Calcutta: June
2000) .
[9]
Reporter Dhiren
Bhagat described the destruction during a June 24, 1984 visit to the complex:
"But no amount of white paint can cover the bullet marks on the marble and
gold, and each morning as the packed mass of pilgrims pushes itself toward the
shrine hundreds of hands stretch out to trace each bullet hole, to take in each
defacement." Dhiren Bhagat, "Bhindrawale's Escape," in Salman Khurshid, ed.,
The Contemporary Conservative
(New
Delhi: Viking, 1989), p. 93, originally published in
The Spectator
(July 7, 1984). The Akal Takht was also reduced to
rubble according to
Kumar, "The Ghalughara".
[10]
An official
government inquiry established that 2,733 Sikhs were murdered in Delhi. RK Ahooja, "Ahooja
Report," 1987, http://www.carnage84.com/official/ahooja/ahooja.htm (accessed
April 13, 2007).
[11]
For a detailed
analysis of the November 1984 pogroms, based on witness, survivor and
government submissions to government commissions, see Jaskaran Kaur,
Twenty Years of Impunity: The November 1984
Pogroms of Sikhs in India
(Portland: Ensaaf, 2006), 2nd ed.,
inquiry commissions were also ordered by the government, but despite some of
them identifying prominent political leaders as having been involved in the attacks,
there have been no convictions. Some police officials were convicted.
[12]
"CBI Closes Case Against Tytler,"
The
Hindu
, September 29, 2007 http://www.hindu.com/2007/09/29/stories/2007092962071800.htm
(accessed September 29, 2007).
[13]
BBC News, "Leaders 'incited' anti-Sikh riots," August 8, 2005, http://news.bbc.co.uk/2/hi/south_asia/4130962.stm
(accessed August 13, 2007).
[14]
US State Department, Bureau of Democracy,
Human Rights, and Labor, "Country Reports on Human Rights Practices-1990:
India," p. 1437; US State Department, Bureau of Democracy, Human Rights, and
Labor, "Country Reports on Human Rights Practices-1992: India," p.1133. Article
356 of the Indian Constitution empowers the President and Parliament to bypass
the elected state government and administer the state if the governor
determines that "the Government of the State cannot be carried on in accordance
with the provisions of this Constitution."
[15]
The National Security Act, 1980, http://www.satp.org/satporgtp/countries/india/document/actandordinances/NationalSecurityact.htm
(accessed August 13, 2007). The National Security (Amendment) Act, 1987, http://www.mha.gov.in/acts-rules/National_Security%20_Amendment_Act1987.pdf
(accessed August 13, 2007). Also see US State Department, Bureau of Democracy,
Human Rights, and Labor, "Country Reports on Human Rights Practices-1989: India," p.
1388.
[16]
Widely criticized for perpetrating human rights abuses, TADA was eventually
allowed to lapse in 1995. The Prevention of Terrorism Act (POTA) which replaced
TADA in 2001 was repealed in 2004 because of similar abuse.
[17]
The Terrorist and Disruptive Activities
(Prevention) Act, 1987, http://www.satp.org/satporgtp/countries/india/document/actandordinances/TADA.htm
(accessed June 5, 2007).
[18]
US State Department, Bureau of Democracy,
Human Rights, and Labor, "Country Reports on Human Rights Practices-1989: India," p.1389.
[19]
Armed Forces (Punjab and Chandigarh) Special Powers Act (1983),
section 7. Section 7 states: "No prosecution, suit or other legal proceeding shall
be instituted, except with the previous sanction of the Central Government,
against any person in respect of anything done or purported to be done in
exercise of the powers conferred by this Act."
[20]
Section 26, The Terrorist and Disruptive
Activities (Prevention) Act states: "No suit, prosecution or other legal
proceeding shall lie against the Central Government or State Government or any
other authority on whom powers have been conferred under this Act or any rules
made thereunder, for anything which is in good faith done or purported to be
done in pursuance of this Act or any rules made thereunder or any order issued
under any such rule."
[21]
Ram Narayan Kumar, et al.,
Reduced to Ashes
, pp. 56, 58. For other
reports on abuses by Indian security forces, see Human Rights Watch/Asia and
Physicians for Human Rights,
Dead
Silence;
Human Rights Watch,
India-Punjab in Crisis: Human Rights in India
(New York: Human Rights
Watch, 1991); Amnesty International, "Human Rights Violations in Punjab; Use
and Abuse of the Law," May 1991,
(accessed April 13, 2007); Amnesty International, "Punjab Police: Beyond the
Bounds of Law," April 1995,
(accessed April 13, 2007); Amnesty International, "Break the Cycle of Impunity
and Torture in Punjab," AI Index: ASA 20/002/2003, January 2003,
[22]
Human Rights
Watch/Asia and Physicians for Human Rights,
Dead
Silence
, p. 2. In "Endgame in Punjab:
1988-1993," Gill describes how he developed "a radical policy of postings and
promotions." KPS Gill, "Endgame in Punjab:
1988-1993," 2001, South Asia Terrorism Portal,
(accessed May 4, 2007). See also, Shekhar Gupta and Kanwar Sandhu, "KPS Gill: True
Grit,"
India Today
(April 15, 1993),
p.64 (DGP Gill promoted the best officers).
[23]
US State
Department, Bureau of Democracy, Human Rights, and Labor, "Country Reports on
Human Rights Practices-1993: India,"
January 31, 1994,
(accessed April 13, 2007).
[24]
Ram Narayan
Kumar, et al.,
Reduced to Ashes
, p.
175.
[25]
Physicians for Human Rights and Bellevue/NYU
Program for Survivors of Torture, "Evaluation of Litigants Pertaining to Writ
Petition (Crl.) No. 447/95
Committee for
Information and Initiative on Punjab v. State of Punjab
," October 18, 2005,
p. 7: "Torture of family members other than the decedent was reported in 56% of
cases, with an average of 1.4 family members tortured per respondent and a
maximum of nine."
[26]
Jaskaran Kaur, "A Judicial Blackout: Judicial
Impunity for Disappearances in Punjab,
India,"
Harvard Human Rights Journal
, vol. 15
(2002), p. 269. This articles analyzes how the Punjab and Haryana High Court disposed
of habeas corpus petitions filed on behalf of the disappeared from 1990 to
1997, as well as the personal experiences of the victims' families, lawyers and
justices involved. The study draws from 90 habeas petitions, as well as 30
interviews with survivors and 30 interviews with lawyers and retired and
sitting justices.
[27]
Human Rights Watch/Asia and Physicians for
Human Rights,
Dead Silence
, p. 2.
[28]
US State Department, Bureau of Democracy,
Human Rights, and Labor, "Country Reports on Human Rights Practices-2006: India," March
6, 2006, http://www.state.gov/g/drl/rls/hrrpt/2006/78871.htm (accessed April
13, 2007).
[29]
Ensaaf, "Sardar
Jaswant Singh Khalra,"
video report, 2006,
[30]
Ibid.
[31]
CBI v.
Ajit Singh Sandhu & Others
, Sessions Court, Case No. 49-T of
9.5.1998/30.11.2001, November 18, 2005. Copy on file with Ensaaf.
[32]
"High Court Case Filed against Former Police
Chief KPS Gill for Murder of Human Rights Activist Jaswant Singh Khalra," Ensaaf
press release, September 6, 2006, http://www.ensaaf.org/docs/gillpetition.php
(accessed April 13, 2007).
[33]
See Amnesty International, "Break the Cycle."
On August 19, 2005, Justice R.L. Anand, a member of the Punjab State Human
Rights Commission, stated that more than 80 percent of the complaints filed
before the Commission were against Punjab
policemen. "Cops need to amend ways, says Justice Anand,"
Tribune
(Chandigarh),
Aug. 20, 2005, http://www.tribuneindia.com/2005/20050820/punjab1.htm#14
(accessed April 13, 2007). Ensaaf, "Punjab Police: Fabricating Terrorism
through Illegal Detention and Torture" (California:
Ensaaf, 2005).
[34]
"India not to submit to terrorism: Manmohan,"
Press Trust of India,
Tribune
(Chandigarh), February 4,
1994, p.1.
[35]
Report by the Special Rapporteur, Mr. Bacre
Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution
1992/72, E/CN.4/1993/46, December 23, 1992,
paras. 330-347 (accessed May 15, 2007).
[36]
Report of the
Working Group on Enforced or Involuntary Disappearances, E/CN.4/1995/36,
December 21, 1994,
para. 222 (accessed May 15, 2007).
[37]
See, e.g.,
Jaskaran Kaur, "A Judicial Blackout: Judicial Impunity for Disappearances in
Punjab, India,"
Harvard Human Rights
Journal
, vol. 15 (2002); See Amnesty International, "Break the Cycle of
Impunity and Torture in Punjab," ASA 20/002/2003, January 19, 2003,
(accessed April 22, 2007);Brad Adams, "Dead End in Punjab,"
The Asian Age
2007).
[38]
"Amnesty cannot
visit Punjab," United News of India,
Tribune
(Chandigarh),
March 22, 1989, p. 1, 16.
[39]
"Indian leaders,
Sikhs blamed in Punjab strife," Associated
Press,
Toronto Star
, Aug 25, 1991,
p.H8.
[40]
Darshan Singh Mann, SP(D), Additional
Affidavit on behalf of respondents No. 4 to 6 (SSPs of Amritsar, Tarn Taran,
and Majitha), National Human Rights Commission, Reference Case No. 1/97/NHRC,
received August 14, 1998, para. 2: "[P]etitioners are trying to portray the Punjab
Police as 'trigger-happy,' 'blood thirsty' with an extra legal style of
functioning, who were out to eliminate innocents. This amounts to negating the
contribution of hundreds of valiant police officers who laid down their lives
while fighting terrorism." Copy on file with Ensaaf.
[41]
See, e.g., ibid.
See also State of Punjab, "Application for re-framing of points of substance,"
Volume II-Document 1, "Insight to some of the martyred police officers,"
National Human Rights Commission, Reference Case No. 1/97/NHRC, received August
26, 2002. Copy on file with Ensaaf.
[42]
"Application for
re-framing of points of substance," para. 11e.
[43]
Darshan Singh
Mann, SP(D), Additional Affidavit on behalf of respondents No. 4 to 6, para. 2.
[44]
Ibid., para. 12.
[45]
KPS Gill, "By other means: The litigation
weapon against the police and the state,"
Frontline
June 27, 1997, p.115.
[46]
Praveen Swami, "Bad apples are everywhere,"
Frontline
, November 18, 1994, p. 40.
[47]
KPS Gill, "Man in
Uniform Demands Justice," Hindustan
Times
June 8, 2001.
[48]
KPS Gill, "By
other means: The litigation weapon against the police and the state,"
Frontline
, June 27, 1997, p.115.
[49]
KPS Gill, "Letter
to Prime Minister I.K. Gujral on the Death of Ajit Singh Sandhu, May 20, 1997,"
available at http://www.satp.org/satporgtp/kpsgill/terrorism/97PM.htm (accessed
May 15, 2007).
[50]
The International Convention for the
Protection of All Persons from Enforced Disappearancewhich is currently open for signature,
defines "enforced disappearance" as: "the arrest, detention, abduction or any
other form of deprivation of liberty committed by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law." art. 2, http://www.ohchr.org/english/law/disappearance-convention.htm.
India
was one of the initial signatories to the convention, signing the treaty on
February 6, 2007.As a signatory, India must
"refrain from acts which would defeat the object and purpose of [the] treaty." Vienna Convention on the
Law of Treaties (1969), art. 18.
[51]
Updated Set of
Principles for the Protection and Promotion of Human Rights through Action to
Combat Impunity ("Impunity Principles"), U.N. Doc. E/CN.4/2005/102/Add.1,
February
8, 2005, adopted by the UN Commission on Human Rights in Resolution
E/CN.4/2005/81, April 15, 2005.
[52]
Code of Criminal Procedure, 1973, sections 45
and 197. These sections require the prosecutor to apply for "prosecution
sanction," or permission from the state or central government, before
instituting any proceedings against a public servant or member of the armed forces.
This requirement has prevented and halted cases against senior officers charged
with serious human rights abuses.
[53]
International
Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A.
Res. 2200A (XXI), entered into force March 23, 1976, art. 2. See also
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), entered
into force January 4, 1969, art. 6.
[54]
See
Human Rights Committee, General Comment 31, Nature of the General Legal
Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13
(2004) , para. 15 ("States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights" protected by the
ICCPR). See also Impunity Principles, principle I; Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law ("Reparations Principles"), adopted December 16,
2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11.
[55]
See Human
Rights Committee, General Comment 29, States of Emergency (art. 4), U.N. Doc.
CCPR/C/21/Rev.1/Add.11 (2001), para. 14 ("Even if a State party, during a state
of emergency, and to the extent that such measures are strictly required by the
exigencies of the situation, may introduce adjustments to the practical
functioning of its procedures governing judicial or other remedies, the State
party must comply with the fundamental obligation, under article 2, paragraph
3, of the [ICCPR] to provide a remedy that is effective."). See also The
Redress Trust, "Enforcement of Awards for Victims of Torture and Other
International Crimes," May 2006,
(accessed April 22, 2007) pp.10-11.
[56]
See Human Rights Committee, General Comment 29, States
of Emergency (art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para.15 ("A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a
separate breach of the Covenant").; Principles on the Effective Prevention and
Investigation of Extra-Legal, Arbitrary and Summary Executions, Principle 3(b)
("Investigate violations effectively, promptly, thoroughly and impartially and,
where appropriate, take action against those allegedly responsible in
accordance with domestic and international law"); see also European Court of
Human Rights,
Ibrahim Aksoy v. Turkey
Judgment of 18 December 1996, 100/1995/606/694, para. 98. The ECHR ruled that
"the notion of an effective remedy" for torture in Article 13 of the European
Convention includes "a thorough and effective investigation capable of leading
to the identification and punishment of those responsible."
[57]
Reparations Principles, principle 24.
[58]
Principles on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions, principle 15.
[59]
See e.g.
Maria
del Carmen Almeida de Quinteros et al. v. Uruguay
, Communication No.
108/1981, UN Doc. CCPR/C/19/D/107/1981 (1983);
Irene Bleier Lewenhoff and Rosa Valino de Bleier v. Uruguay
Communication No. 30/1978, U.N. Doc. CCPR/C/OP/1 (1985);
Velasquez Rodriguez
, Inter-Am.
Ct. H.R Ser. C No. 4. This issue is discussed in Human Rights Watch, "India Punjab
Amicus Curiae Brief," (2003), http://www.hrw.org/pub/amicusbriefs/punjab.pdf
(accessed April 22, 2007), Argument II.
[60]
See
Human Rights Committee, General Comment 31, para. 18 ("States Parties must
ensure that those responsible are brought to justice. As with failure to
investigate, failure to bring to justice perpetrators of such violations [of
human rights recognized as criminal] could in and of itself give rise to a
separate breach of the Covenant.").
[61]
See The Redress Trust, "Implementing Victims'
Rights: A Handbook on the Basic Principles and Guidelines on the Right to a
Remedy and Reparation," March 2006,
22, 2007), p. 24.
[62]
Concluding Observations of the Human Rights
Committee: India,
August 4, 1997, U.N. Doc No. CCPR/C/79/Add.81,
(accessed May 20, 2007), para. 21.
[63]
See Principles on the Effective Prevention
and Investigation of Extra-legal, Arbitrary and Summary Executions, principle
19.
[64]
See The
Redress Trust, Enforcement of Awards, pp. 6-7, citing Inter-American Court of
Human Rights
, Baena-Ricardo Case
, judgment
of 28 November 2003, Inter-Am. Ct. H.R., (Ser. C) No. 104 (2003), para. 82,
cited in Shelton,
Remedies in International Law
(Oxford: Oxford University Press, 2005) p.
383.
[65]
Human Rights
Committee
, General Comment 31, para.
16.
Others have delineated
four components of reparations: restitution, compensation, rehabilitation, and
satisfaction and guarantees of non-repetition. Restitution is described as the
restoration of the victim, whenever possible, to the original situation prior
to the occurrence of the violation. This includes restoration of liberty,
citizenship, employment, property, or one's place of residence. Compensation
covers material losses, such as medical expenses and the loss of earnings, as
well as economically assessable moral damage, such as pain and suffering.
Rehabilitation includes legal, social, medical, and psychological care and
services. Satisfaction and guarantees of non-repetition include measures such
as the full public disclosure of the truth; the search for the whereabouts of
the "disappeared"; an official declaration restoring the dignity, reputation,
and rights of the victim and persons closely connected to the victim; and
review of laws that contribute to or allow gross violations of human rights.
Reparations must be "proportional to the gravity of the violations and the harm
suffered." Further, reparations are premised on the principle of
non-discrimination, where all victims who have suffered like violations receive
like reparations.
See
Reparations Principles, principles 19-23.
[66]
Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo
International Criminal Tribunal for the former Yugoslavia (ICTY), Case No.
IT-96-21-T, November 16, 1998, para. 346 (Celebici). In Celebici, the Trial
Chamber of the ICTY traced the development of the concept of superior
responsibility from its first international judicial recognition in the Nuremberg and Tokyo
trials of World War II. The Trial Chamber broke down the principal of superior
responsibility into three essential elements: (i) the existence of a
superior-subordinate relationship; (ii) the superior knew or had reason to know
that the criminal act was about to be or had been
committed; and (iii) the superior
failed to take the necessary and reasonable measures to prevent the criminal
act or punish the perpetrator thereof.
[67]
Ibid. at para. 333., affirmed in part and
reversed in part,
Prosecutor v. Delalic
et al.
, ICTY, Judgment (Appeals Chamber), February 20, 2001) ("Delalic
Appeals Chamber").
[68]
Ibid., at 383.
[69]
Ibid.
[70]
Ibid., at 387-388.
[71]
Ibid., at 395.
[72]
Vellore
Citizens
Welfare Forum v. Union of India
INSC 1050 (1996). The Supreme Court held that "the rules of Customary
International Law which are not contrary to the municipal law shall be deemed
to have been incorporated in the domestic law and shall be followed by the
courts of law." As per Article 372 of India's Constitution, all laws in force
in the Indian territory before the
commencement of the Constitution continue in force. India
follows England's
common law and thus designates the same status to customary international law
in domestic law.
[73]
Gramophone
Co. of India Ltd v. Birendra Bahadur Pandey
, AIR 1984 SC 667, 673.
[74]
People's
Union for Civil Liberties & Anr v. Union of India
, (1997) 3 SCC 433.
[75]
See
Bandhua Mukti Morcha v. Union of India and others
, (1984) 3 SCC
161;
M.C. Mehta v. Union of India
AIR 1987 SC 1086.
[76]
M.C. Mehta v. Union of India
, AIR 1987 SC
1086.
[77]
DK Basu v. State of West Bengal
, (1997) 1 SCC 416 at 438, para. 35.
[78]
Vishaka v. State of Rajasthan
, (1997) 6
SCC 241, para. 11.
[79]
Bandhua
Mukti Morcha v. Union of India and others
, para. 11.
[80]
Bandhua
Mukti Morcha v. Union of India and others
, para. 13.
[81]
Hussainara Khatoon & Ors. v. Home
Secretary, State of Bihar
, AIR 1979 SC
1369, 1979 SCR (3)1276.
[82]
Writ Petition (Crl.) No. 447 of 1995,
Committee for Information and Initiative on
Punjab v. State of Punjab
and Others
, April 3, 1995 (Writ Petition (Crl.) No. 447 of 1995). Copy on
file with Ensaaf.
[83]
Order of the
Supreme Court dated November 15, 1995, Writ Petition (Crl.) No. 497 of 1995,
Paramjit Kaur v. State of Punjab &
Others
, with Writ Petition (Crl.) No. 447 of 1995. Copy on file with
Ensaaf.
[84]
Order of the Supreme Court dated
December 11, 1996, Writ Petitions (Crl.) Nos. 497 and 447 of 1995. Copy on file
with Ensaaf.
[85]
Order of the Supreme Court dated
December 12, 1996, Writ Petitions (Crl.) Nos. 497 and 447 of 1995. Copy on file
with Ensaaf.
[86]
Ensaaf, "Sardar
Jaswant Singh Khalra,"
video
report, 2006, http://www.ensaaf.org/docs/khalravideo.php (accessed April 13,
2007).
[87]
Writ Petition (Crl.) No. 447 of 1995,
para. 5x-5xii.
[88]
Order of
the Supreme Court dated December 12, 1996.
[89]
See
Bandhua Mukti Morcha v. Union of India and
others
, (1984) 3 SCC 161;
M.C. Mehta
v. Union of India
, AIR 1987 SC 1086.
[90]
Order of the
Supreme Court dated November 15, 1995, Writ Petition (Crl.) No. 497 of 1995,
Paramjit Kaur v. State of Punjab &
Others
, with Writ Petition (Crl.) No. 447 of 1995. Copy on file with
Ensaaf.
[91]
Order of the
Supreme Court dated December 12, 1996.
[92]
See e.g., "NHRC to send team to Assam
to look into the living conditions in refugee camps," http://nhrc.nic.in/dispArchive.asp?fno=1478
(accessed October 3, 2007); "Nithari: NHRC awaits govt report,"
Tribune
(Chandigarh), Jan. 16, 2007. W.P. (Crl.) No.
109 or 2003,
National Human Rights
Commissionv. State of Gujarat &
Ors.
; W.P. (Crl.) No. 194-202 or 2003 & 326-329 of 2003,
National Human Rights Commission v. State of
Gujarat & Ors
., "India: Gujarat -- Denial of Justice for Victims,"
Amnesty International press release, Feb. 26, 2004, available at
[93]
NHRC
Order dated October 9, 2006, Reference Case No. 1/97/NHRC,
The Bhalla Commission held its last hearing on June 29, 2007 and presumably
submitted its final report to the NHRC. According to the NHRC's October 30,
2006 order, its final report was due June 30, 2007. NHRC Order dated October
30, 2006, Reference Case No. 1/97/NHRC, para. 14. Copy on file with Ensaaf.
Throughout its proceedings, it identified duplicate records and reduced the
number of cases in its mandate to 800 unidentified cremations. Bhalla
Commission order dated May 12, 2007, Reference Case No. 1/97/NHRC and
CI/NHRC/2006.
[94]
NHRC Order dated January 28, 1997,
Reference Case No. 1/97/NHRC. Copy on file with Ensaaf.
[95]
Protection of Human Rights Act, 1993,
[96]
NHRC Order dated August 4, 1997, Reference Case No. 1/97/NHRC, quoting
Bandhua Mukti Morcha v. Union of India &
Others
, 1984(3) SCC 16. Copy on file with Ensaaf.
[97]
NHRC Order on Proceedings dated August 4, 1997, Reference Case No. 1/97/NHRC.
Copy on file with Ensaaf.
[98]
A Petition for
Clarification/Directions filed on behalf of Applicant-Union of India, Writ
Petitions (Crl.) Nos. 497 and 447 of 1995. Copy on file with Ensaaf. The Union
of India wanted the PHRA's one-year statute of limitation to apply, which would
have closed the NHRC inquiry.
[99]
Order of the Supreme Court dated
September 10, 1998, Criminal Misc. Petition Nos. 6674 of 1997 and 4808 of 1998,
Writ Petitions (Crl.) Nos. 497 and 447 of 1995. Copy on file with Ensaaf.
[100]
A cremation is "identified" if the name
of the decedent, his father's name, and his residence are known. A cremation is
"partially identified" if two out of the three above pieces of information are
known. If none of these fields are known, the cremation is "unidentified." The
NHRC based its understanding of its mandate on technicalities, stating that the
CIIP's petition only attached records regarding secret cremations at two
cremation grounds in Amritsar district, and not other districts, and that the
Supreme Court intended it only to investigate those 2,097 cremations. NHRC
order dated January 13, 1999, Reference Case No. 1/97/NHRC. Copy on file with
Ensaaf.
[101]
Application to NHRC by Petitioners in
Writ Petition 447 of 1995 Seeking Review of Order dated January 13, 1999
(Received January 28, 1999); Application by Petitioners in Writ Petition No.
447 of 1995 Seeking Clarification and Directions with Reference to Orders dated
August 4, 1998 [sic], January 13, 1999 and March 24,1999 (Received February 1,
2001); Application for Clarification of Scope of the Reference Made by this
Hon'ble Court to the National Human Rights Commission in the above Writ
Petition vide Order dated December 12, 1996, Writ Petition Nos. 497 of 1995 and
447 of 1995 (Dated August 23, 1999).Copies on file with Ensaaf.
[102]
NHRC order dated
March 24, 1999, Reference Case No. 1/97/NHRC; Supreme Court order dated October
11, 1999, Review Petition No. 447 of 1995. Copies on file with Ensaaf.
[103]
NHRC Order dated August 4, 1997,
Reference Case No. 1/97/NHRC, para. 9, quoting
M.C. Mehta v. Union of India
, AIR 1987 SC 1086. In its August 1997
order, the NHRC had quoted from another key case defining the Supreme Court's
Article 32 powers in which the Court stated: "[O]ur approach must be guided not
by any verbal or formalistic canons of construction but by the paramount object
and purpose for which this article has been enacted as a fundamental right in
the Constitution." NHRC order dated August 4, 1997, para. 9,
quoting Bandhua Mukti Morcha v. Union of India &
Others
, AIR 1984 SC 802. Copy on file with Ensaaf.
[104]
In its first order on preliminary
issues in August 1997, the NHRC discussed setting up commissioners who would
"record and process the evidence" and conduct inquiries in order to resolve
"the large number of claims that are likely to arise for determination." NHRC
Order dated August 4, 1997, para. 19. Neither the commissioners nor the
inquiries ever materialized.
[105]
See NHRC order dated October 9, 2006,
Reference Case No. 1/97/NHRC: "Learned counsel for CIIP during the course of inquiry
filed a further list of 163 persons.The State of Punjab, after verification
accepted...[the] identity of 111 persons.On March 3, 2005, CIIP filed yet
another list of 12 persons.the State of Punjab accepted the identity of 10
persons out of the
list of
12 persons. Thus, it was admitted case of the parties that total number of
identified bodies now stood as 703 (582 [identified by the CBI] + 111 + 10),"
[106]
See
discussion of case of Paramjit Singh (Sl. No. 67 in CBI list). The dispute was
over whether he was in police custody at time of death. NHRC Order dated
October 4, 2005 order, Reference Case No. 1/97/NHRC,
2007). The NHRC also changed the classification of the case of Gurbachan Singh,
son of Karnail Singh, to admitted custody after CIIP revealed that police
records established that he was in police custody at the time of his death, and
the State of Punjab
did not dispute this position. NHRC order dated October 9, 2006.
[107]
NHRC Order dated November 11, 2004,
Reference Case No. 1/97/NHRC.
(accessed April 20, 2007).
[108]
See, e.g., police affidavits submitted
in response to 582 cases identified by CBI, such as Affidavit of Makhan Singh,
SP(Detective), Amritsar in CBI No. 285/43 (victim was a robber and killed
during attempted robbery); Affidavit of Dilbagh Singh, SP(D), Majitha in CBI
No. 281/41 (victim was killed by fellow terrorists). Copies on file with
Ensaaf.
[109]
NHRC Order dated October 9, 2006,
Reference Case No. 1/97/NHRC,
[110]
Ibid.
[111]
"In so far as other Rules, as noticed
above, are concerned, the learned Solicitor General fairly conceded that
appropriate steps under the Punjab Police Rules were not taken before cremation
of identified dead bodies and that steps were also not taken to identify the
unclaimed dead bodies, where identity of the deceased was not known. It is also
admitted that even bare minimal stepswere not undertaken by the Punjab Police
before getting the bodies cremated in the three crematoria of Amritsar, Majitha and Tarn Taran." Ibid.
[112]
The
original number of 2,097 was revised to 2,059 after the Punjab Police
identified duplicate records in the CBI list. Ibid.
[113]
During its proceedings, the Bhalla
Commission identified duplicate records and reduced the number of cases in its
mandate from 814 to 800. Bhalla Commission order dated May 12, 2007, Reference
Case No. 1/97/NHRC and CI/NHRC/2006.
[114]
At a hearing in February 2007, the NHRC heard CIIP's arguments in response to
54 new identifications made by the Punjab Police after the NHRC had established
the Amritsar Commission of Inquiry. The police claimed that the cremation
victims had not been in police custody at the time of their deaths. The
NHRCplaced the entire burden on the
CIIP to dispute the police assertions. In the ten days given by the NHRC,
Ensaaf investigated five out of the 54 cases, and in four out of the five cases
the families denied the police version of events and maintained the police had
custody prior to the unlawful killing. In the remaining case, the police suppressed
the identity of the true victim and his survivors, and colluded with another
family to put forward a fraudulent claim in order to collect compensation. The
NHRC did not invite survivor testimony or respond to these arguments, or in any
way challenge the police identifications. The police later tried to explain
away the fraudulent claim as a case of mistaken identity.
[115]
"The fact
that during the course of inquiry before the Commission as many as 663 more
bodies have been identifiedshows that they were capable of being identified
but apparently sincere efforts do not appear to have been made by the Punjab
Police to identify the deceased before they were cremated.We find that there
has been a serious lapse on the part of the State Police in this behalf." NHRC
Order dated October 9, 2006.
[116]
"DGP Fears Threat to Sukhi's Life,"
Tribune
(Chandigarh), February 20, 2006,
[117]
The CIIP
stressed that this information was necessary to ensure that the compensation
was granted to the true victim families in submissions to the NHRC and later to
the Bhalla Commission but received no response from the NHRC. Copies on file
with Ensaaf. In May 2007, after three such cases of forged cremations came to
light, an inquiry was ordered by the Punjab DGP. Media reported that in at
least one case, police claimed a reward after an innocent individual was killed
and cremated in the place of a militant.Ajay Banerjee, "Fake Encounters: Trouble in Store for Erring Cops,"
Tribune
(Chandigarh),
July 26, 2007, http://www.tribuneindia.com/2007/20070726/punjab1.htm#8
(accessed August 1, 2007); Jyoti Kamal, "Punjab
digs up a 'fake encounter,'"
CNN-IBN
May 8, 2007, http://www.ibnlive.com/news/Punjab-cops-too-staged-encounters/39960-3.html
(accessed May 9, 2007). In early September 2007, former DGP S.S. Virk was
arrested for providing one former militant with a faked identity, after the
militant was shown to have been killed by the police. Ajay Banerjee, "Virk case:
Real issue 'cats,' not just assets,"
Tribune
(Chandigarh),
September 10, 2007,http://www.tribuneindia.com/2007/20070910/main2.htm (accessed September
10, 2007).
[118]
Ensaaf interview
with Joginder Singh, Amritsar,
February 14, 2007.
[119]
Conversations between Trideep Pais, Junior
Counsel to CIIP, and Sukhman Dhami, February 15, 17, and 27, 2007.
[120]
Submission to the
NHRC by Surinderjit Singh Mand, SP (D), Tarn
Taran, Reference Case No. 1/97/NHRC. March 3, 2007. Copy on file with Ensaaf.
[121]
NHRC Order dated October 9, 2006. See
also, NHRC Order dated November 11, 2004, Reference Case No. 1/97/NHRC,
(accessed April 20, 2007).
[122]
Ibid.
[123]
NHRC Order dated August 4, 1997, Reference Case No. 1/97/NHRC. Copy on file
with Ensaaf.
[124]
NHRC Order dated August 18, 2000,
Reference Case No. 1/97/NHRC. Copy on file with Ensaaf.
[125]
Application
by Petitioners in Writ Petition No. 447 of 1995 Seeking Clarification and
Directions with Reference to Orders dated August 4, 1998 [sic], January 13,
1999 and March 24,1999 (Received February 1, 2001). Copy on file with Ensaaf.
[126]
NHRC Order dated October 9, 2006.
[127]
Application by Petitioners in Writ Petition
No. 447 of 1995 Seeking Clarification and Directions with Reference to Orders
dated August 4, 1998 [sic], January 13, 1999 and March 24,1999 (Received
February 1, 2001). Includes 17 affidavits by survivor families. Copy on file
with Ensaaf.
[128]
NHRC Order dated November 11, 2004,
quoting
DK Basu v. State of West Bengal
(1997) 1 SCC 416.
[129]
NHRC Order dated August 4, 1997, Reference Case No. 1/97/NHRC. Copy on file
with Ensaaf.
[130]
NHRC Order dated November 11, 2004,
quoting
DK Basu v. State of West Bengal
(1997) 1 SCC 416.
[131]
NHRC order dated November 11, 2005, Reference
Case No. 1/97/NHRC,
(accessed April 29, 2007).
[132]
"Rates of depression, posttraumatic
stress disorder, and global psychological distress were extremely high, with
nearly 80% of the individuals interviewed reporting a past or present major
depressive disorder and more than half reporting symptoms indicative of
posttraumatic stress disorder." Physicians for Human Rights (PHR) and the
Bellevue/NYU Program for Survivors of Torture (Bellevue), "Evaluation of
Litigants Pertaining to Writ Petition (Crl.) No. 447/95 Committee for
Information and Initiative on Punjab v. State of Punjab," October 24, 2005,
pp. 19-20.
[133]
Application by the Petitioner, October 24,
2005, Writ Petition (Criminal) No. 447 of 1995,
Committee for Information and Initiative on Punjab v. State of Punjab and Others.
[134]
NHRC Order dated October 10, 2006, Misc.
Petition No. A-1 dated 24.10.2005 in Reference Case No. 1/97/NHRC. Copy on file
with Ensaaf.
[135]
Open letter from Physicians for Human
Rights and the Bellevue/NYU Program for Survivors of Torture to Honorable Dr.
Justice Shivaraj V. Patil, Acting Chairperson, National Human Rights
Commission, December 8, 2006, http://www.ensaaf.org/pdf/legal/PHRLetter.pdf
(accessed April 20, 2007).
[136]
NHRC Order dated October 9, 2006.
[137]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[138]
Ibid.
[139]
Report of Investigation
in Crim. Misc. Pet. No. 92 of 1995 & Cr. W.P. No. 87 of 1995, Punjab and Haryana High Court. CBI Case No.
RC.4(S)/96-SIU.I/SIC.I/New Delhi.
S. Prasad, DSP CBI SIC.I. New Delhi,
16 August 1996, paras. 16 (cremation), 20-21, 28 (establishing identity of
unidentified body as Jugraj Singh son of Mohinder Singh). Copy on file with
Ensaaf.
[140]
Ensaaf interview with Gurbachan Singh, Tarn
Taran, February 27 to 28, 2007.
[141]
Ibid.
[142]
"Comments regarding the list of four cases
submitted by CIIP on 03.03.07," by Sudhir Walia, Adv. for Punjab Police.
Submitted March 24, 2007. Copy on file with Ensaaf.
[143]
Bhalla Commission
order dated April 10, 2007. Reference Case No. 1/97/NHRC and CI/NHRC/2006. Copy
on file with Ensaaf. Bhalla Commission order dated April 28, 2007. Reference
Case No. 1/97/NHRC and CI/NHRC/2006 (insufficiency of Gurbachan Singh's
affidavit). Copy on file with Ensaaf. Bhalla Commission order dated June 8,
2007. Reference Case No. 1/97/NHRC and CI/NHRC/2006 (final rejection of
identification). Copy on file with Ensaaf.
[144]
Ensaaf interview with Dara Singh, Tarn Taran,
April 8, 2007. See also, Affidavit of Dara Singh, in Application by Petitioners
in Writ Petition No. 447 of 1995 Seeking Clarification and Directions with
Reference to Orders dated August 4, 1998, January 13, 1999 and March 24,1999 (received
February 1, 2001). Copy on file with Ensaaf.
[145]
CIIP
Submission to Bhalla Commission, March 2, 2007, para. 2 (submitted with April
10, 2007 application). Copy on file with Ensaaf. See also, Bhalla Commission
order dated February 3, 2007. Reference Case No. 1/97/NHRC and CI/NHRC/2006
(referencing CIIP submission on three previously identified cases now marked as
unidentified).
[146]
"Comments
regarding the list of four cases submitted by CIIP on 03.03.07," by Sudhir
Walia, Adv. for Punjab Police. Submitted March 24, 2007. Copy on file with
Ensaaf.
[147]
Bhalla Commission
order dated April 28, 2007. Reference Case No. 1/97/NHRC and CI/NHRC/2006. Copy
on file with Ensaaf.
[148]
Ensaaf interview with Dara Singh, Tarn Taran,
April 8, 2007.
[149]
Ibid.
[150]
Ibid.
[151]
Ibid.
[152]
Ibid.
[153]
Affidavit of Dara
Singh, in Application by Petitioners in Writ Petition No. 447 of 1995.
[154]
Ensaaf interview with Dara Singh, Tarn Taran,
April 8, 2007.
[155]
The Bhalla Commission subsequently revised the number of
unidentified cremations from 814 to 800 because of alleged clerical errors by
the CBI. Bhalla Commission order dated May 12, 2007.
Reference Case No. 1/97/NHRC and CI/NHRC/2006. Copy on file with Ensaaf.
[156]
This includes one meeting between the
NHRC, Bhalla Commission, and Punjab Police in October 2006, and a private
meeting at the January 2nd Bhalla Commission hearing, when Justice Bhalla left
the courtroom to hold private discussions with representatives of the Punjab
Police, before returning to start the hearing. Neither the Commission nor the
Punjab Police have informed the CIIP of what transpired in Justice Bhalla's
chambers. Ensaaf attended the January 2, 2007 hearing.
[157]
NHRC Order dated
October 30, 2006, Reference Case No. 1/97/NHRC, para. 16. Copy on file with
Ensaaf.
[158]
Bhalla Commission
order dated January 2, 2007. Reference Case No. 1/97/NHRC and CI/NHRC/2006.
Copy on file with Ensaaf. Out of the 1,857 claims, those that were not matched
to a cremation were not processed further by any agency.
[159]
Bhalla Commission order dated February 3, 2007. Reference
Case No. 1/97/NHRC and CI/NHRC/2006. Copy on file with Ensaaf. See also, Bhalla
Commission order dated April 28, 2007. Reference Case No. 1/97/NHRC and
CI/NHRC/2006 (stating that it is not the scope of the Commission to determine
the fate of the survivor's son and what happened to the victim's dead body).
Copy on file with Ensaaf.
[160]
Ensaaf attended the hearing.
[161]
Ensaaf attended
all hearings for the Bhalla Commission of Inquiry from January 2, 2007 to April
10, 2007.
[162]
NHRC Order dated
October 9, 2006, Reference Case No. 1/97/NHRC, Annexure A. Copy on file with
Ensaaf. Ensaaf analysis of cremations listed in Annexure A.
[163]
Submissions of the Petitioner Committee for
CIIP in WP No. 447 of 1995 on the issues of Evidence and Inquiry to Fix the
Identity of the Remaining 814 Cremations, Bhalla Commission, January 2, 2007.
Bhalla Commission order dated February 3, 2007.
Reference Case No. 1/97/NHRC and CI/NHRC/2006. Copy on file with Ensaaf.
[164]
At time of writing, the next NHRC hearing was scheduled
for October 18, 2007.
[165]
Order of the
Supreme Court dated December 11, 1996.
[166]
Ibid.
[167]
Order dated July
22, 1996. Writ Petitions (Crl.) Nos. 497 and 447 of 1995. Copy on file with
Ensaaf.
[168]
Affidavit on
behalf of Respondents No. 4 to 6, Writ Petitions (Crl.) Nos. 497 and 447 of
1995 (Received August 14, 1998), Annexure A/4: Affidavit by Sukhdev Singh
Chhina, SP(City) Amritsar, Writ Petitions (Crl.) Nos. 497 and 447 of 1995,
Submission on Merit, para. 5vi (Submission on Merit). Copy on file with Ensaaf.
[169]
Submission on Merit, para. 5vii.
[170]
Submission on Merit, para. 5viii.
[171]
Writ Petition
(Crl.) No. 447 of 1995,
Committee for
Information and Initiative on Punjab v. State of Punjab and Others
, April
3, 1995, para. 5viiii.
[172]
Affidavit of
Baldev Singh, submitted September 27, 1995 to Supreme Court in Civil Writ Pet.
No. 447 of 1995,
Committee for
Information and Initiative on Punjab v. State of Punjab and Others
, para.
4. Copy on file with Ensaaf.
[173]
Ensaaf interview
with Baldev Singh, Amritsar,
March 29, 2007.
[174]
Ibid.
[175]
Ibid.
[176]
Affidavit of
Baldev Singh, para. 5.
[177]
Ensaaf interview
with Baldev Singh, Amritsar,
Marcy 29, 2007.
[178]
Ibid.
[179]
Ensaaf interview with K. Singh, Amritsar, April 8, 2007.
[180]
Annexure A of
Writ Petition (Crl.) No. 447 of 1995,
Committee
for Information and Initiative on Punjab v. State of Punjab and Others
April 3, 1995.
[181]
Ensaaf interview
with K. Singh, Amritsar,
April 8, 2007.
[182]
Ibid.
[183]
Order dated July 22, 1996. Writ Petitions
(Crl.) Nos. 497 and 447 of 1995. Copy on file with Ensaaf.
[184]
Ensaaf interview
with Balraj Singh, Amritsar,
April 9, 2007.
[185]
Ibid.
[186]
Ram Narayan Kumar et al., Reduced to Ashes, p. 53.
[187]
Ibid., p. 54.
[188]
Writ Petition (Civil) No. 16777 of 2006
, Paramjit Kaur Khalra v. State of Punjab and Others
(Gill Petition), (Admitted on
October 23, 2006), List of dates and events. See also Gill Petition, Annexure
P-2, "'Missing Persons' not killed: Gill,"
Tribune
(Chandigarh),
January 19, 2005.
[189]
Ensaaf, "Sardar
Jaswant Singh Khalra,"
video report, 2006,
See also Gill Petition, Annexure P-2,
"'Missing persons' not killed: Gill,"
Tribune
(Chandigarh), Jan. 19, 2005 (reporting that Gill
stated that missing persons had gone abroad and the ISI was trying to revive
the militancy in Punjab).
[190]
Gill Petition,
List of dates and events: January 20, 1995.See also Gill Petition, Annexure P-3/T.
[191]
Gill Petition,
List of dates and events: February 27, 1995.
[192]
State (CBI) v. Ajit Singh
Sandhu & Others
, Additional Sessions Judge
Bhupinder Singh, Patiala, Session No. 49-T of 9.5.1998/30.11.2001, Judgment,
November 18, 2005 (
State v. Ajit Singh
Sandhu & Others
judgment),
paras. 14, 17.
[193]
State v. Ajit Singh Sandhu &
Others
judgment,
paras.
13, 14. Copy on file with Ensaaf.
[194]
Gill Petition,
List of dates and events, March 23, 1995. See also, Counter-Affidavit by
Sukhdev S. Chhina, SP (City) Amritsar, on Behalf of Respondents 1, 2, and 5,
dated September 25, 1995,
Paramjit Kaur
v. State of Punjab
, Writ Petition (Crl.) No. 497 of 1995, para. 8. Copy on
file with Ensaaf.
[195]
State v. Ajit Singh Sandhu &
Others
judgment, para.
15.
[196]
Ibid., para. 15.
[197]
Ibid., para. 16.
[198]
Ibid., para. 15.
[199]
Charge Sheet
against police officers with brief report submitted by AS Joshi DSP CBI (New Delhi), pg 6. Case No.
RC.14/S/95/DLI. Oct. 30, 1996. Copy on file with Ensaaf.
[200]
Counter-Affidavit by Sukhdev S. Chhina, para.
1.
[201]
State v. Ajit Singh Sandhu &
Others
judgment, paras.
28, 31.
[202]
Ibid., para. 17.
[203]
Order of the
Supreme Court dated November 15, 1995,
Paramjit
Kaur v. State of Punjab
, Writ Petition (Crl.) No. 497 of 1995. Copy on file
with Ensaaf.
[204]
Gill Petition,
List of dates and events.
[205]
Charge Sheet,
Oct. 30, 1996-all charges u/s 120-B read with 365, 220 IPC.
[206]
Order of Special
Judicial Magistrate dated September 3, 1997,
State (CBI) v. Ajit S. Sandhu & Others
, para.13. The order
allowed Paramjit Kaur Khalra's attorney to participate under the directions of
the Public prosecutor. Copy on file with Ensaaf.
[207]
Order of Sessions
Judge K.S. Garewal, Patiala,
dated July 25, 1998,
State v. Ajit Singh
Sandhu & Others
, para. 12: "[P]rima facie cases are made out against
the accused as under: 1. Under S.120-B IPC against all of the accused. 2. Under
S. 364/34 IPC against Ashok Kumar, Surinder Pal Singh, Satnam Singh, Jasbir
Singh and Prithipal Singh accused. 3. Under S.302/34 IPC and 201 IPC against
Jaspal Singh, Amarjit Singh and Rachhpal Singh." Copy on file with Ensaaf.
[208]
State
v. Ajit Singh Sandhu & Others
judgment.
[209]
A revision
petition is pending against the acquittal of Rachhpal Singh. Crim. Revision
Petition No. 1814 of 2005.
Paramjit Kaur
Khalra v. State of Punjab
July 30, 2005.
[210]
See, for example, Criminal Appeal No. 865-DB
of 2005,
Jaspal Singh v. State of Punjab
admitted on December 8, 2005. Copy on file with Ensaaf.
[211]
Criminal Revision No. 323 of 2006,
Paramjit Kaur Khalra v. State of Punjab and
Others
, admitted on December 12, 2006.
[212]
Gill Petition,
para.12.
[213]
Ensaaf interview
with Paramjit Kaur Khalra, Amritsar,
March 27, 2007. See also, "Khalra Panel Cries Foul,"
Tribune
(Chandigarh),
Dec. 1, 2005 at http://www.tribuneindia.com/2005/20051201/punjab1.htm#14
(accessed May 1, 2005).
[214]
Ensaaf telephone interview with Rajvinder S. Bains,
September 10, 2007. The next hearing in this case of Jaspal Singh's jailbreaks
will be on November 23, 2007.
[215]
Written Arguments of R.S. Bains in the matter of RC-IV/S/95-SCB-1,
State v. Ajit Singh Sandhu & Others
filed November 8, 2005, para. 8.
[216]
Amnesty
International, "Break the Cycle of Impunity and Torture in Punjab,"
January 2003,
(accessed May 4, 2007), p. 9. Written Arguments of R.S. Bains, para. 8.
[217]
Written Arguments of R.S. Bains, para.
8.Statement of Rajiv Singh s/o Parkash
Singh in court, Prosecution Witness 15,
State
v. Ajit Singh Sandhu & Others
, February 2, 2005. Copy on file with
Ensaaf.
[218]
Written Arguments
of R.S. Bains, para. 8.
[219]
Statement of Kulwant Singh s/o Udham Singh,
Prosecution Witness 14,
State v. Ajit
Singh Sandhu & Others
, January 6, 2004. Copy on file with Ensaaf. See
also, Written Arguments, para. 8, citing Kulwant Singh's acquittal and
judgment, 1998(1) RCR 846.
[220]
State
v. Ajit Singh Sandhu & Others
judgment, para. 17.
[221]
Statement of
Kulwant Singh s/o Udham Singh, Prosecution Witness 14,
State v. Ajit Singh Sandhu & Others
, January 6, 2004. Copy on
file with Ensaaf.
[222]
Statement of
Kikar Singh, s/o Harbans Singh, recorded by P. L. Meena, deputy superintendent
of the CBI on May 29, 1996 in case RC 14(S)95/S.C.B. DLI (translated from Hindi
original). Copy on file with Ensaaf.
[223]
Order of the Supreme Court dated July 30,
1996,
Paramjit Kaur v. State of Punjab
Writ Petition (Crl.) No. 497 of 1995. Copy on file with Ensaaf. The Court
ordered protection for Kikar Singh and other witnesses. See also, Affidavit of
Kikar Singh s/o Harbans Singh, (
Paramjit
Kaur v. State of Punjab
, Writ Petition (Crl.) No. 497 of 1995) Supreme
Court of India, August 29, 1996, para. 1. Copy on file with Ensaaf.
[224]
Affidavit of
Kikar Singh s/o Harbans Singh, para. 3.
[225]
Affidavit of
Kikar Singh s/o Harbans Singh, paras. 3-5.
[226]
Statement of
Kikar Singh s/o Harbans Singh, Prosecution Witness 1,
State v. Ajit Singh Sandhu & Others
, 2002. Copy on file with
Ensaaf. The owner of the vehicle used by the police in the abduction also
turned hostile, warranting further investigation.
[227]
State v. Ajit Singh Sandhu & Others
judgment, para. 30.
[228]
Ibid.
[229]
"Khalra witness
wants CRPF vehicle,"
Tribune
(Chandigarh), Nov. 4,
2004, http://www.tribuneindia.com/2004/20041104/punjab1.htm#7 (accessed May 4,
2007).
[230]
Order of Special Judicial Magistrate, CBI, Patiala, September. 3,
1997. Copy on file with Ensaaf.
[231]
Statement of
Kuldip Singh s/o Harbans Singh, Prosecution Witness 16,
State v. Ajit Singh Sandhu & Others
, February 16, 2005. Copy on
file with Ensaaf.
[232]
State
v. Ajit Singh Sandhu & Others
judgment, para. 17.
[233]
Ibid.
[234]
Closure report in
the matter of RC 14/S/95-SCB-1-New Delhi regarding report u/s 173 (VIII)
Criminal Procedure Code ("Closure report"), Court of Special Magistrate,
Patiala, para. 4. submitted September 22, 1999 by investigating officer, DSP,
CBI/SIC-IV New Delhi. Copy on file with Ensaaf.
[235]
Statement of
Kuldip Singh s/o Harbans Singh, Prosecution Witness 16,
State v. Ajit Singh Sandhu & Others
, February 16, 2005. Copy on
file with Ensaaf.
[236]
Order of Sessions Judge dated October 9,
2000,
State v. Ajit Singh Sandhu &
Others
, para. 6.
[237]
Order of Sessions
Judge dated April 9, 1999,
State v. Ajit
Singh Sandhu & Others
, paras. 1, 4.
[238]
Closure report, para. 13. See also, Statement
of K.S. Joshi, Superintendent, CBI, Prosecution Witness 19, March 23, 2005;
Order of Sessions Judge dated October 9, 2000,
State v. Ajit Singh Sandhu & Others
, para. 8. Copies on file
with Ensaaf.
[239]
Closure report,
paras. 9-10.
[240]
Gill Petition,
Annexure P-8 (CBI Reply to Petition, filed September 29, 2000 by Public
Prosecutor H. Qureshi, CBI SCB-1: New Delhi).
[241]
Order of Sessions
Judge dated October 9, 2000,
State v.
Ajit Singh Sandhu & Others
[242]
Order of Sessions Judge dated October 9,
2000,
State v. Ajit Singh Sandhu &
Others
, para. 15.
[243]
State v. Ajit Singh Sandhu & Others
judgment, para. 17. See also Statement of Kuldip
Singh s/o Harbans Singh, Prosecution Witness 16,
State v. Ajit Singh Sandhu & Others
, February 16, 2005. Copies on file with Ensaaf.
[244]
State v. Ajit Singh Sandhu & Others
judgment, para. 17.
[245]
Ibid.
[246]
Statement of Kuldip Singh s/o Harbans Singh,
Prosecution Witness 16,
State v. Ajit
Singh Sandhu & Others
, February 16, 2005.
[247]
State
v. Ajit Singh Sandhu & Others
judgment, para. 17.
[248]
Ibid.
[249]
Ibid., para. 28.
[250]
Statement of
Paramjit Kaur, Prosecution Witness 2,
State
v. Ajit Singh Sandhu & Others
, September 4, 2002. See also,
Paramjit Kaur v. State of Punjab
Writ Petition (Criminal) No. 497 of 1995, List of Dates and Events (C). Copy on
file with Ensaaf.
[251]
Paramjit Kaur v. State of Punjab
, 1996 SC (7) 20, November 15, 1995. Copy on file with Ensaaf.
[252]
Ibid.
[253]
State
v. Ajit Singh Sandhu & Others
judgment, para. 26.
[254]
Ibid.
[255]
Gill Petition, Annexures P-13, P-14,
Representations to CBI, December 5, 2005 (For further investigation in case no.
RC No. 14(S)/95/Dellhi, under Sections 120-B, 364, 302, 201 read with Section
34 IPC) and January 15, 2006.
[256]
Gill Petition,
para. 11.
[257]
Gill Petition.
[258]
Ensaaf interview with Rajvinder S Bains, Chandigarh, September 15,
2007.
[259]
Prosecutor v. Kordic and Cerkez
, International Criminal Tribunal for the
former Yugoslavia,
Case No. IT-95-14/2-T, Judgment (Appeals Chamber), December 17, 2004, para. 449
("Kordic Appeals Chamber");
Prosecutor v.
Blaskic
, ICTY, Case No. IT-95-14-T, Judgment (Trial Chambers), March 3,
2000, para. 294; see also
Prosecutor v.
Bagilishema
, International Criminal Tribunal for Rwanda, Case No. ICTR-95-1A-T,
Judgment, 7 June 2001, para. 38 ("Bagilishema Trial Chambers").
[260]
Prosecutor
v. Kayishema
, ICTR, Case No. 95-1-T, Judgment (Trial Chambers), May 21,
1999, para. 229 ("Kayishema Trial Chambers"). See also Kordic Appeals Chamber,
para. 462;
Prosecutor v. Blagojevic and
Jokic
, ICTY, Case No. IT-02-60-T, Judgment (Trial Chambers), January 17,
2005, para. 791 ("Blagojevic Trial Chambers").
[261]
Blagojevic Trial
Chambers, para. 791. The power to prevent or punish the commission of offenses
is also demonstrated by: the power to initiate investigations and discipline
subordinates, rewarding subordinates, meeting subordinates and receiving
communications rendered through the chain of command. Bagilishema Trial
Chambers, paras. 172-173; Kayishema Trial Chambers, paras. 501, 483.
[262]
KPS Gill,
"Endgame in Punjab: 1988-1993," 2001, South
Asia Terrorism Portal,
(accessed May 4, 2007).
[263]
Ibid.
[264]
Prosecutor
v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo
, ICTY, Case No. IT-96-21-T, Judgment (Appeals
Chamber), February 29, 2001, para. 197 ("Delalic Appeals Chamber"). In cases of
de jure command, "a court may presume that possession of such power prima facie
results in effective control unless proof to the contrary is produced."
[265]
Giving orders
which are followed is a substantial indication that a superior posses effective
control over his subordinates. See
Prosecutor
v. Serushago
, ICTR, Case No. ICTR-98-39-S, Judgment (Trial Chambers),
February 15, 1999, para. 29;
Prosecutor
v. Blaskic
, Case No. IT-95-14-A, Judgment (Appeals Chambers), July 29,
2004, para. 69.
[266]
In 1989, Gill
stated that he took "internal action" after investigating allegations of
"excesses" committed by a senior superintendent of [olice (SSP), and took
action against those involved in corruption. Amit Buruah, "'We Have Done A Good
Job'-Interview With KPS Gill, DGP,"
Frontline
April 29, 1989, 116. In early 1990, Gill told a visiting delegation of members
of the European Parliament that, in the first two months of 1990, seven police
officers had been suspended and one dismissed for "crimes against the
populous." Amnesty International, "Human Rights Violations in Punjab:
Use and Abuse of the Law," May 1991, http://www.amnestyusa.org/countries/india/document.do?id=8D63FE02A44B98C8802569A600600B91.
[267]
John Ward
Anderson, "Punjab's Cycle of Violence:
Villagers Suffer as Sikh Gunmen and Police Trade Attacks,"
Washington Post
, September 2, 1992, p. A23.
[268]
Gill describes how he developed "a radical
policy of postings and promotions." KPS Gill, "Endgame in Punjab:
1988-1993". See also, Shekhar Gupta and Kanwar Sandhu, "KPS Gill: True Grit,"
India Today
(April 15, 1993), p.64 (DGP
Gill promoted the best officers).
[269]
By his own
description, Gill said that he made it his "practice to move constantly across
the state" to meet with his subordinates. He identified the police stations
most affected by the insurgency, catalogued their weaknesses, and then
addressed them. Gill also received written reports from his subordinates. KPS
Gill, "Endgame in Punjab: 1988-1993."
[270]
A superior's actual knowledge can be
demonstrated through direct or circumstantial evidence. Delalic Trial Chambers,
para. 383; see also Kordic Trial Chambers, para. 427 (same). A superior's
actual knowledge is "easier to prove" if he is "part of an organized structure
with established reporting and monitoring systems." Kordic Trial Chambers,
para. 428. Additionally, the number and type of subordinates involved, type of
illegal acts, and the identity and character traits of the individuals involved
must be considered in establishing the superior's actual knowledge. Delalic
Trial Chambers, para. 386. See also Delalic Appeals Chamber, para. 238.
[271]
Based on the content of his findings and the
timing after Khalra released his investigative report and publicly spoke of the
police threats against him, Judge Bhupinder Singh found that SSP Sandhu and his
subordinates had a motive to kill Khalra.
State
v. Ajit Singh Sandhu & Others
judgment, paras. 13-14.
[272]
State v. Ajit Singh Sandhu & Others
judgment, paras. 15-18. Further, the Sessions
Court, in convicting six officers for their roles in the abduction and murder
of Khalra, specifically cited the use of at least two police stations to
illegally detain Khalra: Chabal, where two individuals witnessed Khalra's
detention, and Kang.
State v. Ajit Singh
Sandhu & Others
judgment, paras. 17, 28.
[273]
Sukhwinder Singh
Bhatti, abducted May 12, 1994; Kulwant Singh, his wife, and his baby, abducted
in January 1993; Ranbir Singh Mansahia, abducted on September 12, 1991; and
Jagwinder Singh, abducted on September 25, 1992.
Navkiran Singh & Ors. v. State of Punjab
, Writ Petition (Crl.) No. 242-258
of 1994, Supreme Court, July 2, 1995. Copy on file with Ensaaf.
[274]
Praveen Swami,
"Forgotten War: Treatment of A.S. Sandhu Raises New Questions,"
Frontline
, June 27, 1997, p.114.
[275]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[276]
Ibid.
[277]
Ibid.
[278]
Copy of telegram on file with Ensaaf.
[279]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007. The shop owner's father
refused to give a statement to the CBI during its investigation, and told the
CBI that his son had not left out of fear. Naresh Talwar, Inspector, CBI/SIC.I/New
Delhi, Final Report under Section 173, Criminal Procedure Code,
RC.4(S)/96-SIU.I.SIC.I/New Delhi, May 19, 2004. Copy on file with Ensaaf.
[280]
"Two Terrorists
Killed in Majitha Police District,"
Tribune
(Chandigarh),
January 16, 1995. Copy on file with Ensaaf.
[281]
"Claim that Identification of the Militant
Killed in the Encounter is Didar Singh Dari,"
Tribune
(Chandigarh),
January 20, 1995. Copy on file with Ensaaf.
[282]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[283]
Ibid. See also,
Crim. Misc. No. 92 of 1995 in Writ Petition (Crl.) No. 87 of 1995,
Mohinder Singh v. State of Punjab
, Order
of the High Court, March 8, 1996. Copy on file with Ensaaf.
[284]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[285]
Ibid.
[286]
Ibid.
[287]
Ibid.
[288]
Ibid.
[289]
Report of
Investigation in Crim. Misc. Pet. No. 92 of 1995 & Cr. W. P. No. 87 of
1995, Punjab and Haryana High Court, CBI Case No. RC.4(S)/96-SIU.I/SIC.I/New
Delhi, S. Prasad, DSP CBI SIC.I, New Delhi, August 16, 1996, paras. 20-23. Copy
on file with Ensaaf.
[290]
Ibid., paras. 16 (establishing cremation of
bodies in Amritsar),
20-21, 28 (establishing identity of one of the two unidentified bodies as
Jugraj Singh, son of Mohinder Singh).See also Crim. Misc. No. 730 of 1996 in Writ Petition (Crl.) No. 87 of
1995,
Mohinder Singh v. State of Punjab
Punjab and Haryana High Court, July 17, 1997.
Copy on file with Ensaaf.
[291]
Crim. Misc. No.
730 of 1996 in Writ Petition (Crl.) No. 87 of 1995,
Mohinder Singh v. State of Punjab
, Order of the Punjab and Haryana
High Court, April 29, 1997. Copy on file with Ensaaf.
[292]
Crim. Misc. No.
608 of 1997 in Writ Petition (Crl.) 87 of 1995,
Mohinder Singh v. State of Punjab
, Punjab and Haryana High Court,
July 17, 1997. Copy on file with Ensaaf.
[293]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[294]
Crim. Misc. No. 608 of 1997 in Writ Petition
(Crl.) 87 of 1995,
Mohinder Singh v.
State of Punjab
, Order of the Punjab and Haryana High Court, August 8,
1997. Copy on file with Ensaaf.
[295]
Writ Petition
(Crl.) 87 of 1995,
Mohinder Singh v.
State of Punjab
, Order of the Punjab and Haryana High Court, November 11,
1997. Copy on file with Ensaaf.
[296]
Application for directing CBI i.e.
Investigation Agency to submit all the documents relating to investigation, No.
RC.4(S)/96/SIU.I/SIC.I.CBI/New Delhi,
April 16, 1998. Order of Special Judicial Magistrate, CBI, Patiala,
RC.4(S)/96/SIU.I/SIC.I.CBI/New Delhi,
July 30, 1998. Copies on file with Ensaaf.
[297]
Crim. Misc. No.
21986-M-1998,
Mohinder Singh v. Central
Bureau of Investigation
, August 26, 1998. Copy on file with Ensaaf.
[298]
Crim. Misc. No.
21986-M-1998,
Mohinder Singh v. CBI
Order of the Punjab and Haryana High Court,
June 2, 1999. Copy on file with Ensaaf.
[299]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007. See also, Order of
Special Judicial Magistrate, CBI, CBI v. Unknown, RC
No.4(s)96/10/5/96/SIU.1.SIC.1.CBI.New Delhi,
April 9, 2003, para. 11. Copy on file with Ensaaf.
[300]
Order of Special
Judicial Magistrate, CBI,
CBI v. Unknown
RC No.4(s)96/10/5/96/SIU.1.SIC.1.CBI.New Delhi,
April 9, 2003, para. 11. Copy on file with Ensaaf.
[301]
Letter from
Mohinder Singh to Director, CBI, Subject: Complaint of mis-conduct against
Inspector Naresh Talwar, CBI-SIC-I, New
Delhi, October 29, 2003. Copy on file with Ensaaf.
[302]
Letter from
Mohinder Singh to Director, CBI, November 24, 2003. Copy on file with Ensaaf.
Letter from Mohinder Singh to Director, CBI, January 7, 2004. Copy on file with
Ensaaf. Letter from Mohinder Singh to Director, CBI, February 12, 2004. Copy on
file with Ensaaf.
[303]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[304]
Naresh Talwar,
inspector, CBI/SIC.I/New Delhi, Final Report under Section 173, Criminal
Procedure Code, RC.4(S)/96-SIU.I.SIC.I/New Delhi, May 19, 2004, p. 16. Copy on
file with Ensaaf.
[305]
Order of Special
Judicial Magistrate, CBI, Punjab,
CBI vs.
Unknown
, RC No. 4(S)/96/SIU.I.SIC-I, New
Delhi, February 9, 2006. Copy on file with Ensaaf.
[306]
Ensaaf interviews
with Mohinder Singh, Ropar, March 13 to April 1, 2007.
[307]
Affidavit of Pritam Kaur, mother of Kulwant Singh, to People's Commission on
Human Rights Violations, para. 1, August 5, 1998. Copy on file with Ensaaf.
[308]
Ensaaf interview with Jaswant Singh,
brother of Kulwant Singh, Patiala,
April 16, 2007.
[309]
Ensaaf interview
with Jaswant Singh, Patiala,
April 16, 2007. See also, Affidavit by Balkar Singh (father of Kulwant Singh)
to Sub-Divisional Officer, Punjab State Electricity Board, Patran, March 31,
1997, para. 3 (regarding reconnecting his motor, which was disconnected while
the police occupied their land starting March 1993. The SSP Sangrur had just
ordered return of the land). Copy on file with Ensaaf.
[310]
Ensaaf interview
with Jaswant Singh, Patiala,
April 16, 2007.
[311]
Ibid.
[312]
Affidavit of Pritam Kaur, para. 5.
[313]
Ensaaf interview
with Jaswant Singh, Patiala,
April 16, 2007.
[314]
First Information
Report No. 247 of 1995, Police Station Samana, District Patiala, November 30, 1995. Copy on file with
Ensaaf.
[315]
Affidavit of Pritam Kaur, para. 6.
[316]
Ensaaf interview with Jaswant Singh, Patiala, April 16, 2007.
[317]
Ibid.
[318]
Ajit Singh Gill,
Biography of Martyr Mohinderpal Singh Pali (unpublished). Copy on file with
Ensaaf.
[319]
Ensaaf interview
with Ajit Singh, Hoshiarpur, April 11, 2007.
[320]
Ibid.
[321]
Ibid.; see also Affidavit by Ajit Singh,
submitted to Supreme Court Justice Kuldip Singh (August 6, 1998), para. 6. Copy
on file with Ensaaf.
[322]
Ensaaf interview with Ajit Singh, Hoshiarpur, April 11,
2007.
[323]
"Seven suspicious individuals among ten
killed-Attack on police post,"
Ajit
(Jalandhar), November 4, 1987, p. 1. Copy on file with Ensaaf.
[324]
Ensaaf interview
with Ajit Singh, Hoshiarpur, April 11, 2007.
[325]
Ensaaf interview
with Bhagwant Kaur, Ludhiana,
April 6, 2007.
[326]
Ibid.
[327]
Ibid.
[328]
"The residents of
Sihora still are startled when they see police,"
Ajit
(Jalandhar), May 26, 1997. Copy on file with Ensaaf.
[329]
Ibid.
[330]
Letter from NHRC,
Law Division, Registrar to Jagir Singh, son of Gurdir Singh, village Sihora,
District Ludhiana, No. 19/250/94-LD/NHRC, November 2, 1994. Copy on file with
Ensaaf.
[331]
Ensaaf interview
with Bhagwant Kaur, Ludhiana,
April 6, 2007.
[332]
Ibid.
[333]
Ensaaf interview
with Tarlochan Singh, Ropar, April 2, 2007.
[334]
Ibid.
[335]
Ibid.
[336]
Ibid.
[337]
Ibid. The last
hearings were on September 28 and 29, 2007 in the CBI special court in Chandigarh.
[338]
See, e.g., Affidavit of Ram Narayan Kumar,
September 28, 1998, Civil Writ Petition No. 14133 of 1998,
Sudershan Goel v. The Union of India and Others
, Punjab
and Haryana High Court, para. 5, (Objections to the maintainability of the
petition).
[339]
Civil Writ Petition No. 14133 of 1998.
Sudershan Goel V. The Union of India
and Others
. Punjab and Haryana High Court.
December 20, 1999.
[340]
See Jaskaran
Kaur,
Twenty Years of Impunity: The
November 1984 Pogroms of Sikhs in India
(Portland:
Ensaaf, 2006), 2nd ed.
[341]
Impunity Principles, principles 6-13.The Impunity Principles define truth
commissions as "official, temporary, non-judicial fact-finding bodies that
investigate a pattern of abuses of human rights or humanitarian law, usually
committed over a number of years."
[342]
Basic Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law ("Reparations
Principles"), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc.
A/RES/60/147 (2005), principle 3(b).
[343]
Impunity Principles, principle 6.
[344]
Impunity
Principles, principle 6.
[345]
Application by the Petitioner, October
24, 2005, Writ Petition (Criminal) No. 447 of 1995,
Committee for Information and Initiative on Punjab v. State of Punjab and Others
Copy on file with Ensaaf.
[346]
Physicians for
Human Rights and Bellevue/NYU Program for Survivors of Torture, "Evaluation of
Litigants Pertaining to Writ Petition (Crl.) No. 447/95
Committee for Information and Initiative on Punjab v. State of Punjab
,"
October 18, 2005, http://www.ensaaf.org/pdf/reports/PHR-Bellevue.pdf (accessed
April 13, 2007), p. 5.
[347]
Ibid., pp. 6-7.
[348]
"Indonesia:
Constitutional Court Strikes Down Flawed Truth Commission Law :
Recommendations," International Center for Transitional Justice (ICTJ) press
release, December 12, 2006, (received by email to Jaskaran Kaur on December 8,
2006).
[349]
Ibid.
[350]
ICTJ, "Comments on Draft Internal Rules for
the Extraordinary Chambers in the Courts of Cambodia," November 2006,
[351]
Argentina's National Commission on
Disappeared Persons (La Comision Nacional Sobre la Desaparicion de Personas,
CONADEP) collected extensive evidence of human rights violations through
witness and victim testimonies. Rebecca Lichtenfeld, ICTJ, "Accountability in Argentina: 20
Years Later, Transitional Justice Maintains Momentum," August 2005, http://www.ictj.org/images/content/5/2/525.pdf
(accessed May 19, 2007), p. 2.
[352]
The Redress
Trust, "Zimbabwe:
From Impunity to Accountability," March 2004,
2007), p. 18, fn. 30 (discussing International Criminal Court's victims-rights
network).
[353]
For example, NorthwesternUniversity
is helping collect testimonies from the Liberian Diaspora community in the US for the
Liberian Truth and Reconciliation Commission. "Transitional Justice in the
News," ICTJ, newsletter, March 15, 2007,
[354]
Impunity
Principles, principle 5.
[355]
For example, in Mexico, the Presidential Accord
ordered the release of secret documents that have considerably helped with
investigations. See, e.g., Paul Seils, ICTJ, "A Promise Unfulfilled? The
Special Prosecutor's Office in Mexico,"
Occasional Paper Series, June 2004,
[356]
Impunity
Principles, principle 14.
[357]
The police
maintain character rolls for each enrolled police officer (inspectors, SI, ASI,
HC and constables).This roll includes
major and minor punishments, the record of posting, and progress report.These rolls are maintained until three years
after the police officer dies or unenrolls.Punjab Police Rules, 1934, (Chandigarh, India: Chawla Publications
(Ltd), 1998), rules 12.28-12.35.
[358]
Human Rights
Watch, "India
Punjab Amicus Curiae Brief," (2003), http://www.hrw.org/pub/amicusbriefs/punjab.pdf
(accessed April 22, 2007), Summary of Argument.
[359]
Priscilla B.
Hayner,
Unspeakable Truths: Confronting
State Terror and Atrocity
, (New
York: Routledge, 2001) p. 107.
[360]
Hayner, p.
130,discussing Human Rights Watch, "Recommendations
to the [South African] Truth and Reconciliation Commission," January 1998.
[361]
Impunity
Principles, principle 9(b).
[362]
See Hayner, p.
129.
[363]
See e.g. Impunity Principles, principle 10.
See also, ICTJ, "Comments on Draft Internal Rules for the Extraordinary
Chambers in the Courts of Cambodia,"
November 2006, http://www.ictj.org/images/content/6/0/601.pdf (accessed May 19,
2007), p. 5.
[364]
See Hayner, p. 34.
[365]
See e.g. Impunity
Principles, principle8(e): "Commissions
of inquiry shall endeavour to safeguard evidence for later use in the
administration of justice."
[366]
Rebecca Lichtenfeld, ICTJ, "Accountability in
Argentina:
20 Years Later, Transitional Justice Maintains Momentum," August 2005,
[367]
Paul Seils, ICTJ,
"A Promise Unfulfilled? The Special Prosecutor's Office in Mexico," Occasional Paper Series,
June 2004, http://www.ictj.org/images/content/1/1/111.pdf (accessed May 19,
2007), p. 14.
[368]
Impunity
Principles, principle 8.
[369]
Human
Rights Committee, General Comment 31, para. 18; see also
Impunity Principles, principle 19; Reparations
Principles, principle 2(b).
[370]
Jaskaran Kaur, "A
Judicial Blackout: Judicial Impunity for Disappearances in Punjab, India,"
Harvard Human Rights Journal
, vol. 15
(2002), pp. 287, 289.
[371]
Ibid.
[372]
See e.g. Paul
Seils, ICTJ, "A Promise Unfulfilled? The Special Prosecutor's Office in Mexico,"
Occasional Paper Series, June 2004,
[373]
Ibid., p. 18.
[374]
Ibid., pp.
ii-iii.
[375]
For example,
public perception is that the Mexican SPO operated slowly because after two and
a half years, it had only issued arrest warrants for three isolated cases, and
only had one person in custody. Paul Seils, ICTJ, "A Promise Unfulfilled? The
Special Prosecutor's Office in Mexico,"
Occasional Paper Series, June 2004,
The SPO's office was disbanded in December 2006, having only initiated
prosecutions in 2.5% of the 532 cases investigated, ultimately resulting in
only 7 arrest warrants. Emilio Godoy, "Rights-Mexico: Truth Commission or
Justice Commission?" IPS News, August 16, 2007,
[376]
Tom Perriello and
Marieke Wierda, ICTJ, "The Special Court for Sierra Leone Under Scrutiny,"
March 2006, http://www.ictj.org/static/Prosecutions/Sierra.study.pdf, p. 36.
[377]
United Nations
Commission on Human Rights, "Independent study on best practices, including
recommendations, to assist states in strengthening their domestic capacity to
combat all aspects of impunity, by Professor Diane Orentlicher,"
E/CN.4/2004/88, February 27, 2004, http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2004.88.En?Opendocument
(accessed May 19, 2007), para. 40.
[378]
ICTJ, "Comments
on Draft Internal Rules for the Extraordinary Chambers in the Courts of Cambodia,"
November 2006, http://www.ictj.org/images/content/6/0/601.pdf (accessed May 19,
2007), p. 11
[379]
See e.g. Impunity
Principles, principle 19.
[380]
Human Rights Committee,
General Comment 31, para. 16.
[381]
Impunity Principles, principle 32.
[382]
Ibid.
[383]
Reparations
Principles, principles 19-23.
[384]
Reparations Principles, principle 25.
[385]
Reparations Principles, principle 15.
[386]
Impunity Principles, principle 34.
[387]
United Nations Commission on Human Rights,
"Independent study on best practices, including recommendations, to assist
states in strengthening their domestic capacity to combat all aspects of
impunity, by Professor Diane Orentlicher," E/CN.4/2004/88, February 27, 2004,
(accessed May 19, 2007), para. 19(b).
[388]
Pablo de Greiff,
"Introduction: Repairing the Past; Compensation for Victims of Human Rights
Violations," in Pablo de Greiff, ed.,
The
Handbook of Reparations
(Oxford:
Oxford University Press, 2006), pp. 6-10.
[389]
Reparations
Principles, principle 20.
[390]
Physicians for
Human Rights and Bellevue/NYU Program for Survivors of Torture, "Evaluation of
Litigants Pertaining to Writ Petition (Crl.) No. 447/95 Committee for
Information and Initiative on Punjab v. State of Punjab," October 18, 2005,
pp. 9-10.
[391]
Ibid., p. 11.
[392]
Ibid., p. 11.
[393]
International
Campaign for Justice in Bhopal,
"Compensation Fact Sheet." Copy on file with Ensaaf.
[394]
In Argentina, a
survivor could file an appeal within 10 days of the rejection of an application,
and the courts had 20 days to resolve the appeal. Maria Jose Guembe, "Economic
Reparations for Grave Human Rights Violations: The Argentinean Experience," in
Pablo de Greiff, ed.,
The Handbook of
Reparations
(Oxford:
Oxford University Press, 2006), p. 31.
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