Appendix C - Rules Of The Peoples' Commission

RULES OF THE PEOPLES' COMMISSION ON HUMAN RIGHTS VIOLATIONS IN PUNJAB

Having been established by the Committee for Coordination on Disappearances in Punjab, the Peoples' Commission on Human Rights Violations in Punjab (hereinafter referred to as "the Commission") shall function in accordance with the following provisions:

Article 1

The Terms of Reference

The Commission will conduct its inquiries within the parameters of the following terms of references:

1. The Commission will examine the complaints of illegal abductions, custodial torture, enforced disappearances, summary executions and en masse illegal cremations, and to give its findings on (a) whether from 1979 to 1997 the agencies of the State carried out and tolerated - directly or indirectly - any of the above mentioned atrocities and thereby committed violation of human rights as guaranteed under the constitution of India and various international covenants and declarations, (b) whether the State agencies/individuals have prima facie committed any offense under the law of the land or international law, and (c) the remedies available to the victims of the aforementioned atrocities including their entitlement to compensation from the State and its agencies.

2. The security forces in Punjab were equipped with extraordinary powers to meet the law and order situation, in particular arising out of the alleged militant activities. Draconian powers were given to the investigating agencies to prosecute the individuals and the groups suspected to be engaged in violence. The Commission will go into the causes and reasons for the utter failure of the State and its agencies in the performance of their duties as required under the rule of law.

Article 2

Preview of the Inquiry

The Peoples' Commission shall make inquiries into commission or instigation and abetment to commission of grave breaches of the fundamental rights guaranteed by Chapter III of the Indian Constitution and other international instruments such as the Universal Declaration of Human Rights, the Geneva Convention of 12 August 1949, the International Covenant of Civil and Political Rights, and other international human rights covenants to which India is a signatory. The following acts against persons or property protected under the provisions of the relevant statutes would fall within the purview of its inquiries:

(a) wilful killing of prisoners in custody, whether legally arrested or not;

(b) their torture or inhuman treatment;

(c) wilfully causing great suffering or serious injury to body or health;

(d) destruction and appropriation of property, not justified by necessities of police functions, and carried out unlawfully and wantonly;

(e) compelling a prisoner, detained legally or otherwise, to assist the clandestine operations of the security forces;

(f) wilfully depriving a prisoner of the rights of fair and regular trial;

(g) taking of civilians as hostages to compel their relatives and friends, who may be absconding from the law, to surrender to the authorities;

(h) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and words of art and science;

(i) plunder of public or private property;

(j) Acts of Genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide:

(1) killing, conspiring, inciting or conniving in the killing of members of a group;

(2) causing serious bodily or mental harm to members of the group;

(3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(4) imposing measures intended to humiliate and abuse the identity of the group

Article 3

Territorial And Temporal Jurisdiction

The Commission's purview of inquiry will cover all persons affected by aforementioned acts of crime, either as victims or perpetrators. committed in Punjab during the relevant period between 1979 and 1997. The inquiries will extend to all such persons from Punjab domiciled in the territory of India, as well as those who may have migrated to foreign countries to escape persecution or prosecution, or for any other reason.

Article 4

Individual Criminal Responsibility

1. A person who planned, instigated, ordered, committed, conspired or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Article 2 of the present Provisions, shall be individually responsible for the crime.

2. The official position of any accused person, high or low, shall not relieve such person of civil or criminal responsibility/liability.

3. The fact that any of the acts referred to in Article 2 of the present Provisions was committed by a subordinate does not relieve his superior of civil and/or criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a Government or a superior shall not relieve him of civil and/or criminal responsibility, but many be considered in mitigation of personal responsibility if the Peoples' Commission determines that justice so requires.

Article 5

Non-bis-in-idem

1. Inquiries by the Peoples' Commission into cases that are sub-judice shall be categorized separately.

2. The Peoples' Commission may conduct inquiries into the conduct of persons who have already been tried by a court of law only if it can be established that the court proceedings were not impartial or independent, and were designed to shield the accused from criminal responsibility, or the case was not diligently prosecuted.

Article 6

Organization of the Peoples' Commission

The Peoples' Commission shall consist of the following organs:

(a) The Chamber of Judges, comprising three retired judges of the Supreme Court or any High Court,

(b) The Investigator, and

(c) A Secretariat, servicing both the Chamber of Judges and the Investigator.

Article 7

Rules of Procedure and Evidence

The judges of the Commission shall adopt rules of procedure and evidence for the conduct of the preliminary hearings, taking cognizance of complaints, issue of notice, the admission of evidence, the protection of victims and witnesses and other appropriate matters in accordance with the rules of procedure under the Commissions of Inquiry Act. They shall also take into account the rules of natural justice.

Article 8

The Investigator

1. The Investigator shall be responsible for verifying complaints and initiating proceedings against persons suspected of serious human rights violations, as define din Articles 2 and 4, and within the territorial and temporal jurisdiction as defined under Article 3 of this statute.

2. Although the Investigator and other qualified staff under that office will be appointed by the Committee for Coordination on Disappearances in Punjab, they shall act independently as an organ of the Commission, and shall not seek or receive instructions from any human rights organization affiliated to, or any member of, the Committee.

Article 9

Investigation And Initiation Of Proceedings

1. The Investigator shall initiate investigations on the basis of information obtained from any source, particularly from the Committee for Coordination on Disappearances in Punjab, other organizations unconnected with the Committee, and private citizens. The Investigator shall assess the information received or obtained and decide whether there is sufficient evidence to proceed.

2. The Investigator will attempt to interview suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Investigator may, as he may deem appropriate, seek the assistance of any human rights organization, other bodies and individuals.

3. When interviewed by the Investigator, persons suspected of human rights violations shall be entitled to be assisted by counsel of their choice.

4. Upon a determination that a prima facie case exists, the Investigator shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Rules.

5. The indictment transmitted to the Commission shall be supported by affidavits by way of evidence. Other documents filed in support of the case shall also be supported by affidavits.

Article 10

Scrutiny Of The Indictment

1. The judges of the Commission to whom the indictment has been transmitted shall examine it. If satisfied that a prima facie case has been established, they shall confirm the indictment. If not so satisfied, they may either require the Investigator to carry out further investigation, or dismiss the indictment.

2. Upon confirmation of the indictment, the Commission may issue notices and any other orders as may be required for the conduct of the proceedings, and may have them served on the respondents by registered post, through the head of the government department to which the accused person is or was attached and by publication in the press.

Article 11

Cooperation And Judicial Assistance

1. As appropriate, the Commission will also send separate notices to the State authorities to seek their cooperation in the investigation of complaints of grave human rights offences.

Article 12

Commencement and Conduct of the Commission's Investigative Proceedings

1. The Commission shall ensure that the proceedings are fair and expeditious and that they are conducted in accordance with the rules of procedure and evidence, as to be adopted under Article 7 of this statute, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

2. A person against whom an indictment has been confirmed shall be immediately informed of the charges against him, and will be requested to present himself for the hearing of the matter. The Commission shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Commission shall then set the date for examination and cross-examination of evidence against him.

3. The examination and cross-examination of evidence shall be public unless the Commission decides to hold the proceedings in chamber, for reasons to be recorded in writing.

Article 13

Rights of the Accused

1. All persons shall be equal before the Commission.

2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to Article 12 of this statute.

3. The accused shall be presumed innocent until proved guilty according to the provisions of the present statute.

4. In the determination of any charge against the accused pursuant to the present statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which they understand of the nature and cause of the charges against them;

(b) to have adequate time and facilities for the preparation of their defence;

(c) to have the proceedings of the Commission conducted in their presence, and to defend themselves in person or through legal assistance of their choice;

(d) to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.

Article 14

Findings

1. The Commission shall give its findings/report/recommendations, if any, with regard to the evidence and other material placed before it. The Commission shall also recommend compensation to victims of atrocities, or their relatives, as deemed appropriate.

2. The findings shall be rendered by a majority of the judges of the Commission, and shall be delivered in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.

Article 15

Expenses of the Commission

The expenses of the Commission shall be borne by the budgetary allocations made by the Committee for Coordination on Disappearances in Punjab, to be administered independently by the Secretary to the Commission.