Analysis Of The Cases

General Trends

Out of the ninety cases I studied, petitioners withdrew fourteen cases and the High Court dismissed forty-two cases - two of which were dismissed in limine without any initiation of proceedings. At the time of my research, the CBI was investigating three cases and had filed a criminal charge in five cases. In five cases the court authorized the payment of compensation, and twenty-one cases were still pending, some with unfavourable inquiry reports. Thus, the majority of the cases were dismissed or withdrawn.

Dominant Judicial Attitudes

Based on my interviews, the judiciary’s conceptions of the militancy in Punjab and of allegations of human rights abuses committed by the police influenced its disposal of habeas corpus petitions filed on behalf of the disappeared. These conceptions defined which issues the justices found central to the legal analysis, and which they thought were irrelevant. Judicial attitudes influenced issues like their evaluation of a prima facie claim, the burden of proof placed on the petitioner, the judiciary’s faith in the availability of other remedies, and the judiciary’s bias toward exonerating police.

My interviews with petitioners, lawyers, and justices revealed several attitudes underlying the judiciary’s approach to these habeas corpus petitions: justices provided mitigating reasons, such as the preservation of national security, against upholding fundamental rights; they often justified police executions of innocent Sikhs because of similar abuses committed by militants; minority justices made accusations of communalism on the bench; and several justices failed to acknowledge the systematic nature of the disappearances. These attitudes reveal that although justices understood the widespread nature of these disappearances, dehumanization of Sikhs and communalism led to their perception of these disappearances as a necessary evil in combating the militancy. Thus, these judicial attitudes contributed to police impunity. In this section, I discuss attitudes that surfaced in my interviews, rather than in the cases.

Justices and state lawyers denied or minimized the human rights abuses that had occurred in Punjab. Hira Lal Sibbal had served as Advocate General for eleven years and was referred to as a “legend” by High Court justices.[79] However, he refused to believe the extent of the illegal cremations committed by the police in Amritsar and acknowledged by the NHRC. Instead, he referred to reports by human rights groups, such as Amnesty International and HRW, as “all nonsense.”[80] He described his perception of the context of these disappearances, a description echoed by several justices: “When the police tried to nab those who are not innocent, sometimes in an encounter against some guilty persons, some innocent persons were killed in the crossfire.” [81] Thus, he refused to believe the systematic nature of the police abuses, justifying the abuses as accidents bound to occur.

Justices dehumanized Sikhs, judging all Sikhs according to the actions of a few. All Sikhs, innocent and militant alike, were seen as equivalent. Justice G. S. Singhvi, the second senior justice on the High Court, responded to my question regarding the judiciary’s failure to protect the fundamental rights to life and liberty in Punjab, guaranteed in Article 21 of the Indian Constitution: “What about the life and liberty of those killed by the militants and terrorists? [It is] not possible to separate the militants from the innocent people who were killed.”[82] Justices could not disassociate Sikhs alleging human rights abuses from militants. In Dead Silence, HRW also cited how the Indian government answered charges of human rights abuses committed by the Punjab Police “not by denying the charges, but by countering that the Sikh militants have themselves been responsible for abuses.”[83]

Several minority High Court justices confirmed allegations of communalism on the bench. Retired Justice S. S. Sodhi, who served as justice on the Punjab and Haryana High Court and later as Chief Justice of the Allahabad High Court, described the communalism on the bench; of particular salience was his experience with the assignment of cases.

Justice Sodhi accused the Chief Justice of the High Court of funnelling human rights cases away from Sikh judges during his tenure. Justice Sodhi was one of the two judges on the Kulwant Singh case. Kulwant Singh was a Sikh advocate of the High Court representing victims of human rights abuses. On January 25, 1993, Kulwant Singh, his wife, and their two-year-old child left their house and went to the Ropar Police Station. They disappeared that night. The Punjab and Haryana High Court Bar Association went on strike for two months, alleging that police officials had abducted and murdered the entire family. Evidence of the family’s visit to the police station, intimidation of witnesses who changed their statements to favour the police and subsequently received employment in a police post without any application, the police’s recovery of the family car, and false implication of a police official all pointed to the need for a further inquiry into the matter. Justice Sodhi said that although he supported an inquiry, the other justice did not agree. Thus, Justice Sodhi referred the matter to a larger bench of five justices and described his exclusion from the case: “The convention was that when a matter is referred like this, the two judges who heard the case originally, are part of the five judges; but this time, they excluded me. And they did not allow the inquiry to be held by the CBI.”[84] On appeal, the Supreme Court condemned the inaction of the High Court, without specifically citing its communal bias: “The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution.”[85] The CBI found that the police had killed Kulwant Singh and his family.[86]

Especially following the alleged suicide of Ajit S. Sandhu, Senior Superintendent of Police in Tarn Taran, Amritsar, justices subordinated human rights for the preservation of police morale. Sandhu was accused of the disappearance of human rights activist Jaswant S. Khalra, who had exposed the illegal cremations conducted by the Punjab Police. The CBI had charged Sandhu and eight other police officers with the crime, and Sandhu spent a few months in jail before his release on bail.[87] On May 24, 1997, Sandhu allegedly committed suicide by jumping in front of an approaching train. He left a note, which stated: “It is better to die than live in this shame.”[88] Although his death was never verified as a suicide, K. P. S. Gill, the Director General of the Punjab Police during Operation Rakshak II, used his death to launch a campaign against human rights activists.[89] As Ashok Agrwaal, Supreme Court lawyer, human rights activist, and advocate for the NHRC case, suggested, “In the press, we’ve been called agents of terrorists or foreign interests or the murderers of Sandhu. The judges have also tended to take that view, that we’re basically troublemakers.”[90] Navkiran Singh, a human rights lawyer in the High Court, described this attitude in terms of nationalism and counter-terrorism. Justices feared that if they convicted policemen, the insurgency would return in Punjab and the police would not fight it.

Police Responses To Petitions

Police responded to admitted writs with several types of claims: that the detention never occurred, that the disappeared had absconded and was a proclaimed offender, that he was killed in an encounter, that terrorists had kidnapped and killed the disappeared, or that he had escaped after going for recovery of weapons.[91] The most common reply in my selection of cases was that the disappeared was killed in an encounter, going for recovery of weapons while in the custody of the police. The police often explained the escape by declaring that the detainee had ripped his handcuffs from the constable’s belt and had run away while no policeman shot at him.[92] As Gurdarshan Singh Grewal, a former State Advocate General, said, when police replied that the disappeared had escaped, that was synonymous with “escaped from this world.”[93]

Police creatively explained why they did not comply with the rules established for encounter killings, as spelled out in Section 25 of the PPR. In Karnail Singh v. Punjab, the police wrote: “Photographs were arranged but could not be enlarged as the negatives were found defective due to some technical defect in the Camra [sic], as stated by the photographer.”[94] Also, since the body was identified, the police did not publish a report in the Criminal Intelligence Gazette.[95]

Reasons For Dismissing Petitions

In cases where the High Court accepted the police version, both at the initial stages and after an inquiry, justices cited the police denial, claims of a lack of police motive, the proclaimed offender status of the disappeared, disputed technical facts, and the lack of supporting affidavits filed by the petitioner as reasons for finding against the petitioner. In addition to revealing the High Court’s desire to save the police from prosecution, these reasons demonstrate the Court’s failure to acknowledge the realities of the police abuses, the climate of impunity that allowed policemen to act without fearing the consequences, and the police’s ability to manipulate or destroy evidence.

Several High Court justices and lawyers described the judiciary’s attempts to ignore disappearances and “sweep the matter under the carpet.”[96] The High Court’s reliance on the police’s denial or its lack of motive as evidence of its innocence shows that the High Court did not intend to investigate these allegations. In Swinder Singh v. Punjab, Justice R. L. Anand dismissed the petition, asserting, “The directions sought by the petitioner cannot be printed in view of the categorical stand of the State that Mandeep Singh and Harvinder Singh were killed in a genuine encounter.”[97] Thus, the mere fact of the police denial led the judiciary to conclude that the petitioner’s allegations lacked merit and did not constitute a prima facie case of disappearance.

Justices’ dismissal of petitions at the initial filing stage based on autopsy reports, FIRs, the petitioner’s inability to procure supporting affidavits, and other evidentiary problems failed to acknowledge the police’s ability to manipulate evidence and threaten witnesses. In Surjit Kaur v. Punjab, Surjit Kaur accused the Punjab Police of abducting her husband Captain Bahadur Singh. Justices Amarjeet Chaudary and V. S. Aggarwal dismissed Surjit Kaur’s case because the doctor’s written statement claimed that Captain Bahadur Singh’s death did not occur in police custody. The Court failed to probe statements made by Kashmir Singh, who saw other injuries on Captain Bahadur Singh’s body when he identified it that were not mentioned in the autopsy report.[98]

Petitioners often brought this issue of police harassment of themselves and of their witnesses to the court’s attention. In D. K. Basu v. West Bengal, the Supreme Court validated allegations that police tend not to report complaints regarding police abuses, which renders the procurement of evidence difficult for petitioners and leads to the acquittal of policemen.[99] However, the High Court often did not acknowledge these difficulties when petitioners brought the matter to its attention.[100] In Chandan Kumar Banik v. Punjab, the petitioner told Justice G. S. Chahal that the police had detained all of his relatives to prevent them from being deposed.[101] Despite this notice, Justice Chahal criticized the relatives for their “casual” approach to the inquiry.[102]

Where the High Court found a prima facie case of disappearance and ordered an inquiry, petitioners encountered similar biases in the sessions judges. Many sessions judges required petitioners to provide an explanation for the police’s actions. In Swaran Singh v. Punjab, the CBI underscored the friendly relations between the disappeared and the Station House Officer of the local police station as disproving police responsibility.[103] These comments ignored the bounty system of rewards and other inducements that encouraged policemen to commit extra-judicial executions:[104]

The reward for each person abducted or killed was about Rs. 50,000 [$1,670]. Most of the money was divided among SSP Govind Ram, DSP Harbans Singh and SP Anil Sharma. My husband twice received Rs. 3,000 [$1,000] for the people he killed. My husband was under direct orders of SSP Ram. The SSP was the one who recruited informants and decided who was to be arrested and killed.[105]

Beant Singh, Chief Minister of Punjab, announced in the State Assembly that 41,684 Punjab policemen received monetary awards from 1991 to 1992.[106]

Not accounting for the lapse of several years and the illiteracy or lack of education of many petitioners, sessions judges also invalidated petitioners’ allegations because of the petitioners’ difficulty in remembering exact dates. People often remembered events in conjunction with seasons or social events in the family or village. In Harjinder Kaur and Pritam Singh v. Punjab, the sessions judge used this tendency against the petitioners.[107] He claimed that the witness’s ability to remember the actual date of the disappearance was false because people generally did not remember exact dates: “If the witness cannot remember the date of birth of her eldest son, other children and the date of her own marriage, then it was difficult for her to remember the date of the visit of the police officials to the house of Lakhbir Singh.”[108]

When the inquiry reports were returned to the High Court justices, the justices decided whether to order the CBI to charge the policemen with the crime or to dismiss the case. The justices gave the following reasons for dismissing petitions: delay in filing, directions to approach the authorities, directions to file a civil or criminal suit, disputed facts, or lack of evidence. The judiciary hesitated to prosecute policemen, even after the judiciary had made negative findings of custodial violence.[109]

Although there is no statute of limitations for writ petitions, justices dismissed numerous petitions on the grounds of delay. At least nine of the cases I studied were dismissed for delay, six of which came from the bench of Justice R. L. Anand. He initially told me that cases are never dismissed for delay. When I questioned Justice Anand regarding his dismissals and whether fear of police reasonably explained the delay, he justified his dismissals. If people waited to file a case, that meant their grievances were not genuine: “If a man has kith or kin who have been detained illegally, he will rise to the High Court like anything... people are very vigilant of their rights.”[110] Supreme Court lawyer Ashok Agrwaal criticized the use of delay to dismiss petitions. Not only did early dismissal because of delay fail to acknowledge the reasons for delay, such as police harassment, people’s lack of knowledge of legal options, and people’s desire to use non-legal methods, but the dismissal also spoke to the general climate of impunity. Police merely had to harass possible petitioners for three years in order to defeat their petitions in court. Also, legally, laches could not be used to reject claims based on violations of fundamental rights.[111]

Directions by justices to file a criminal complaint or approach the authorities failed to acknowledge the inefficacy and corruption of the lower courts and the fact that petitioners resorted to the legal system when approaches to the police and authorities had failed. Out of my ninety-case sample, at least fourteen cases were dismissed, citing the failure to file a complaint or approach the authorities.

The Decision To Order An Inquiry

The cases in which the court responded positively to the petitioners’ allegations provide guidelines for how the judiciary could have approached the other petitions. The judiciary either caught the police in obvious contradictions or evaluated the petitioners’ allegations in light of the police’s tendency to fabricate evidence, from FIRs, to post mortem reports, to investigations.

In his court order in Ram Chand Singh v. Punjab, Justice M. L. Singhal scrutinized the standard police story of an encounter with militants while going for recovery of weapons with the detainee, and the detainee’s subsequent escape:

It is unbelievable that if there is an armed encounter and Gurmel Singh would try to flee, there would not be even a scratch so far as the police people are concerned .... It is not believable that the Constable who had handcuffed an accused person with the hook of the handcuffs attached to his belt could permit the detained person to escape without either receiving injuries himself or inflicting injuries on the escaping prisoner.[112]

Harjinder Kaur and Pritam Singh v. Punjab shows how extreme the police responses had to be to capture the judge’s attention.[113] In his inquiry report, the sessions judge wrote:

According to [Inspector Sanvir Singh], the [Constable’s] belt buckle was hit by a fire shot. Thus . . . the buckle was broken after the fire shot hit the same. It is also in his statement that Santokh Singh [the disappeared] and Harjinder Singh [Constable] were in a gypsy . . . that . . . was bullet proof. Thus when some unidentified persons had opened firing upon the police party, it is not understood as to why Santokh Singh who was attached to the belt of Harjinder Singh, was taken out.[114]

It was also unlikely that the constable would not have sustained an injury, and that no one was injured by the 400 to 500 shots allegedly fired by the assailants.

Some justices pointed out the irrationality of taking the detainee for recovery of weapons in the middle of the night. In his examination of a witness, Inspector Gopal Singh suggested problems in the police’s response to the alleged encounter killing: Did officers send a wireless message when the encounter occurred? Did they take photos of dead bodies? Did they inform the relatives of the deceased? Where were the bodies cremated?[115] Judges also cited the police’s failure to follow the Punjab Police Rules or to produce any proof identifying the victim.[116]