Accountability And International Commitments

The human rights community in India protested the stonewalling of the Supreme Court's order of a thorough probe even after the facts regarding illegal police abductions, executions and cremations have been so unambiguously established. This situation not only contradicts India's claims of adherence to human rights standards, but also leads to the surmise that the Union Government itself sanctioned mass killings of civilians as a counter to the Sikh separatist threat.

The right to life of citizens, which the State must protect in all circumstances against all arbitrary violations, is the heart of India's Constitution. The Supreme Court of India has, in a large number of cases, expounded on the permissible limits within which the Legislature may abridge, but not abrogate, the fundamental rights of citizens without damaging the basic structure of the Constitution. The entire constitutional edifice would however become a dead letter if the State is permitted to abdicate its obligation to safeguard the basic right to life against arbitrary violation, derogation from which is impermissible under Article 21 and Amendment 44 of the Indian Constitution. It is a guarantee which may not be suspended even in a state of emergency. The independent human rights community therefore rejects the legality of attempts to circumvent the right to life and to inhibit investigation into abuses thereof.

The 1997 Annual Report of the UN Working Group on Disappearances refers to the writ petition before the Indian Supreme Court on secret cremations, and recommends that "all persons alleged to have perpetrated an act of enforced disappearance should be brought to justice, in accordance with Article 14" (of the UN Declaration on the Protection of All Persons From Enforced Disappearance, adopted by the General Assembly on 18 December 1992), and that "pursuant to Article 7 of the Declaration, no circumstances whatsoever may be invoked to justify enforced disappearances." Further, the Annual Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions for 1997 concluded the following for India: "The perpetrators of extrajudicial, summary or arbitrary executions reportedly continue to enjoy virtual impunity." (The UN Working Group on Disappearances had previously insisted that impunity is the single most important factor that explains the unrelenting persistence of disappearances in 41 countries around the world.) The Special Rapporteur also referred to the letter from the Government of India dated 22 November 1995 - about ten weeks after the Khalra disappearance - professing its commitment to openness, transparency, and full cooperation.

The Government of India also received a communication from the UN Committee on the Elimination of Racial Discrimination in 1996, which points out that Clause 19 of the Protection of Human Rights Act which prevents the NHRC from directly investigating allegations of abuse involving the armed forces, and also Clause 36(2) which bars the Commission from investigating cases more than a year old, contribute to a climate of impunity.

These are some of the legal issues that underlie the demand of Indian human rights groups that the independent and thorough investigation into complaints of disappearances in Punjab be allowed to proceed unhampered. Insofar as the Union Government did not allow this investigation to take place under the terms ordered by the Supreme Court of India, human rights organizations in Punjab came together to pursue this matter independently.