THE STATES

Speeding up justice

SIDDHARTH NARRAIN

The National Human Rights Commission's inquiry into the `disappearances' and `illegal cremations' involving the security forces in Punjab during its decade of separatist trouble is moving to a conclusion.

NEARLY seven years after the Supreme Court directed the National Human Rights Commission (NHRC) to inquiry into the 2,097 "illegal cremations" carried out by the security agencies in Punjab, the commission's proceedings are heading towards a final decision. The Chairperson of the commission Justice A. S. Anand, a former Chief Justice of India, said on September 30 that he wanted to grant compensation in the undisputed cases before Deepavali. The commission directed the two parties to file their versions of the cases with the amicus curiae for the NHRC, R. Venkataramani, so that they could proceed to identify a list of `undisputed cases'.

Other members of the commission are Justices Sujata Manohar and Y. Bhaskar Rao; Virendra Dayal and R.S. Kalha The petitioner in the case is the Committee for Information and Initiative on Punjab (CIIP), an organisation formed in 1988 to address issues relating to human rights violations in the State.

After asking the petitioner questions on individual cases , the commission asked it to rearrange its material into three lists - the first in which the state has admitted taking the deceased person into custody; the second in which there was contemporaneous record, like newspaper clippings, to support the petitioner's claim; and the third in which the evidence revolved around the testimonies of the families of those killed by the police.

In January 1995, Jaswant Singh Khalra, general secretary of the Akali Dal's human rights wing, and Jaspal Singh Dhillon released copies of official documents that showed that security agencies in Punjab had "secretly cremated" thousands of bodies after labelling them as `unidentified' or `unclaimed'. It was alleged that these were the bodies of people abducted by the police and other security forces deployed in Punjab then. The allegations were based on a survey of the number of missing persons in the district and an investigation of the records of three crematoria in Amritsar district - at Durgiana Mandir, Patti and Tarn Taran. Khalra and Dhillon alleged that the police had carried out these cremations in violation of Rule 25.38 in Chapter 25 of the Punjab Police Rules, 1934, under the Police Act of 1861, which lays down clearly the procedure to be followed with regard to unidentified bodies. In April 1995, the CIIP in a writ petition under Article 32 of the Constitution moved the Supreme Court, demanding a comprehensive inquiry into the allegations of disappearances and subsequent "illegal cremations" by the police.

In September 1995, Khalra was allegedly abducted by armed commandos of the Punjab Police from outside his house in Amritsar. At the request of his wife, Paramjit Kaur Khalra, G. S. Tohra, the then president of the Sikh Gurudwara Prabandhak Committee (SGPC) sent a telegram to Justice Kuldip Singh of the Supreme Court, complaining about the abduction. Justice Kuldip Singh, treated the telegram as a petition for a writ of habeus corpus, and directed notice of the petition to the State government and the security agencies. In November 1995, the Supreme Court directed the Central Bureau of Investigation (CBI) to inquire into Khalra's disappearance and the facts contained in Khalra's press note of January 1995.

The CBI, in its final report, said that 2,097 illegal cremations were carried out by the security agencies in three crematoria of Amritsar district. It claimed to have identified 582 of the bodies fully, 278 bodies partially, and could not identify 1,237 bodies. The Supreme Court then directed the NHRC to examine the cases and determine the issues that were raised by the parties. The commission was also empowered to award compensation, which would be `binding and payable'.

The proceedings before the commission have continued for the last seven years in which disputes regarding the scope and purpose of the reference have been argued.

The commission held that it was a sui generis designate of the Supreme Court, vested with all of the powers of the court under Article 32 of the Constitution. It also held that the Supreme Court had referred the whole matter to the commission, with no territorial or other limits on the inquiry.

THERE has been a sense of urgency in the commission's proceedings ever since Justice Anand took over as Chairperson. In May 2003, in the first hearing on the disappearances since he was appointed Chairperson, Justice Anand remarked that the State had sufficient resources to file its replies faster.

Though the commission appears to be keen on speeding up the proceedings, there are a number of contentious issues still to be settled. Venkataramani said: "One of the most contentious questions is whether a militant who is killed in a `real' encounter is entitled to compensation." Besides, the two sides will have to identify a list of undisputed cases.

There is no law that lays down the amount of compensation to be given to the families of those whose disappearance was caused by the security forces. The Supreme Court has awarded damages based on strict liability to penalise the wrongdoer, as in the Nilabati Behera case (Nilabati Behera vs State of Orissa, 1993), by looking at the extent to which the state has abdicated its responsibility to protect the fundamental rights of its citizens and the level of complicity of the political and administrative hierarchies in the violations. In D.K. Basu vs State of West Bengal (1997), the court has laid down standards for compensating victims by taking into account the particular circumstances of each victim and his family.

Says Ashok Agrwaal, the advocate for the petitioners: "In Khalra's case the court awarded a compensation of Rs.10 lakhs within a year. This case did not involve any loss of property or delay in awarding the amount." Many of the cases that are being heard before the commission involve the killing of more than one member of the family and the destruction of their homes. Some of the `disappearances' took place more than 15 years ago, and the urgency that the commission is showing has brought some hope to the families concerned.

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