Human Rights
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Background
Roots Of Conflict In the 1980s, the economic burdens on Punjabis increased. The army imposed a cap on the percentage of Sikhs in the army, which caused a dramatic rise in the educated unemployed in Punjab. The rise in educated unemployed denied many small farmers their only source of capital investment in the form of wages from family members employed in the army.[4] Central government investment in Punjab fell from 2% to 0.8%, placing further economic burdens on the state.[5] On May 24, 1984, the Akali Dal, the Sikh political party, channelled discontent into an agitation that blocked transport of Punjabi wheat and withheld taxes from the Indian government.[6] The government responded by deploying 100,000 army troops in Punjab, setting the stage for the violent attacks of June 1984.[7] Decade Of Disappearances 1984 exploded in Punjab, beginning the government’s active armed oppression of Sikhs and a violent police crackdown of the Sikh insurgency. On June 3, 1984, the martyrdom anniversary of the fifth Sikh Guru, the Indian army launched Operation Bluestar. The army invaded the Golden Temple complex, the center of Sikh religious and political life, and forty-one other major Sikh gurudwaras[8] with tanks, 70,000 troops, and CS gas,[9] and imposed a state-wide curfew. The government forbade news coverage of the army attacks, expelled foreign journalists, and cut phone lines across Punjab.[10] Eyewitnesses reported that over 10,000 pilgrims and 1300 workers had gathered inside the complex and could not leave before the attack for fear of arrest.[11] The police detained Red Cross volunteers at Jallianwala Bagh, near the Golden Temple complex, preventing them from accessing the pilgrims and workers.[12] Eyewitnesses like Ranbir Kaur, a schoolteacher, described policemen tying the hands of Sikhs behind their backs with their turbans[13] and shooting them at point-blank range. Although the official White Paper cited the deaths of only eighty-three Army personnel and 493 terrorists, eyewitnesses cited figures ranging from 4000 to 8000 people killed, mostly pilgrims.[14] Operation Bluestar alienated the Sikh population, casting the Indian government as a regime oppressive toward Sikhs. On October 31, 1984, two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her in retaliation for Operation Bluestar. After the assassination, local political officials orchestrated pogroms against Sikhs in New Delhi and other cities across India, killing at least 3000 people, and burning Sikh houses and businesses.[15] As a result of the destruction, 50,000 Sikhs were homeless in New Delhi alone.[16] Several eyewitnesses and relief workers identified political party leaders in Delhi who had led mobs and encouraged them to violence.[17] The government, however, has not charged a single political or police official for his role in this violence. The decade-long police crackdown of the insurgency after Operation Bluestar led to the deaths of at least 10,000 people in Punjab.[18] Some estimates range as high as 200,000 Sikhs killed.[19] Human Rights Watch (HRW) describes Operation Rakshak II, the police counter-insurgency movement, as “the most extreme example of a policy in which the end appeared to justify any and all means, including torture and murder.”[20] A system of rewards for police for the capture of militants led to an increase in disappearances and extra-judicial executions.[21] Although all Punjabi Sikhs were vulnerable to disappearance, police especially targeted Amritdharis (initiated Sikhs), those who were politically active with the Akali Dal parties, and families and friends of suspected militants.[22] In 1994, in response to reports of mass disappearances orchestrated by the police,[23] Jaswant S. Khalra, Chairman of the Human Rights Wing of the Akali Dal, and Jaspal S. Dhillon, then General Secretary of the Wing, investigated illegal cremations conducted by the Punjab Police between 1984 and 1994 in three crematoria in Amritsar district. They focused their research on illegal cremations, putting aside other possible ends of the victims’ bodies, such as dismemberment, entombment, or dumping in canals. They also limited their research to only one of the seventeen districts in Punjab.[24] Within this limited focus, they discovered 2097 illegal cremations.[25] A few months after Khalra and Dhillon publicized their findings, Khalra filed a writ petition in the Punjab and Haryana High Court to investigate these mass cremations. The High Court dismissed his petition on grounds of vagueness, and Khalra moved the Supreme Court.[26] While the case was pending before the Supreme Court, the police abducted Khalra from outside of his house.[27] The Central Bureau of Investigation (CBI), India’s investigative agency, ultimately charged nine police officers for his abduction, and the case against these police officers is now proceeding in the Patiala CBI Court.[28] The Supreme Court also ordered the NHRC to investigate these mass cremations and determine relevant issues, such as compensation.[29] Counter-Insurgency Legislation As part of its counter-insurgency operation, the Indian government passed several draconian laws that sanctioned police impunity. The Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1987 established in camera courts and authorized detention of persons in a “disturbed area” based on mere suspicion.[30] Under Section 21, detainees were presumed guilty until proven innocent; Section 20(8) prohibited bail even if the detainee had not been charged after ninety days.[31] Between 1985 and 1995, the police registered 17,529 TADA cases in Punjab;[32] only one person was eventually convicted.[33] The Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983 empowered security forces to search premises and arrest people without warrant. Section 4 gave them the power to shoot to kill a suspected terrorist, with prosecutorial immunity, as granted in Section 7.[34] Amnesty International described this act as emboldening security forces with a “license to torture and kill with impunity.”[35] The National Security Act of 1980, amended in 1984 and 1987, authorized detention of suspected terrorists without trial for two years in Punjab.[36] In 1988, the Parliament dissolved the Punjab State Assembly and passed the Fifty-ninth Amendment to the Indian Constitution, authorizing the extension of President’s rule[37] beyond one year,[38] and suspending due process guarantees for rights relating to life and liberty and to freedom of speech and association in Punjab.[39] This amendment also suspended the writ of habeas corpus.[40] Although the amendment was repealed in 1989, the Parliament again extended President’s rule in Punjab in March 1990.[41] On August 18, 2001, in an effort to consolidate police impunity and supplement the protections of the counter-insurgency legislation, Union Home Minister L. K. Advani announced a proposal to give blanket amnesty to policemen facing prosecution for human rights abuses committed during the counter-insurgency operations. Advani was responding to announcements made by retired police officials who threatened to return their medals if the government did not drop all cases against them.[42] However, according to a press statement released by the Punjab Police Department on August 13, 2001, the Punjab and Haryana High Court has directed the CBI to investigate only eighty cases, which has led to merely seven convictions.[43] Laws Governing Detention And Disappearances After abducting Sikh victims, police kept the detainees in unofficial interrogation and torture centers, such as houses, schools, and police buildings.[44] Contrary to the Punjab Police Rules (1934) (PPR), the police did not report or acknowledge the detentions, much less file arrest reports.[45] In an interview with Physicians for Human Rights/Human Rights Watch (PHR/HRW), a police officer confirmed this process: “The arrest is not recorded in the daily log which includes the names of all criminals arrested on a given day. There is no official record of the arrest or detention.”[46] The unofficial police detention procedures violated Section 26.8 of the PPR, which requires the officer in charge of the police station to report all arrests without warrant to the district magistrate or any other magistrate designated by the district magistrate. Under Chapter 5, Section 57 of the Code of Criminal Procedure, 1973 (CCP), police must also produce detainees before a magistrate within twenty-four hours of arrest. Section 25.38 of the PPR outlines the procedure governing actions after an unidentified person dies in an encounter. The officer must record a careful description of it [the body], giving all marks, peculiarities, deformities and distinctive features, ...take the finger impressions and, in addition to taking all other reasonable steps to secure identification shall, if possible, have it photographed and, in cases where such action appears desirable, a description published in the Criminal Intelligence Gazette. When any sudden or unnatural deaths occur in the jurisdiction of the local police station, Section 25.31(1) requires the officer in charge to inform the nearest magistrate and conduct an investigation as prescribed by Section 174 of the CCP. Section 174 obligates the officer to report on the apparent cause of death and any wounds, fractures, or marks of injury found on the body. Despite these guidelines, the police used a variety of techniques to conceal cases of illegal arrest, detention, and execution. In direct contravention of Section 25 of the PPR, police failed to register complaints or acknowledge detention, influenced police inquiries by having police from the same branch conduct them, and falsified judicial records.[47] The police relied on medical doctors, executive magistrates, and other officials to help them perform perfunctory post mortems, cremate bodies in secret, and suppress evidence of custodial abuse.[48] Amnesty International received accounts of magistrates filling out reports falsely in favour of the police, in the face of overwhelming evidence of police torture.[49] The police also failed to produce detainees before the magistrate within twenty-four hours of arrest.[50] Habeas Corpus Jurisprudence The writ of habeas corpus is an extraordinary remedy, and petitioners can only legitimately invoke it when they have exhausted all other administrative and legal remedies. Articles 32 and 226 of the Indian Constitution define the writ jurisdiction of the Supreme Court and the intermediate courts, such as the Punjab and Haryana High Court. These articles allow these courts to use the writ of habeas corpus to enforce the fundamental rights guaranteed in Part III of the Constitution, such as equality and the protection of life and liberty.[51] The petitioner generally files a writ or sends a telegram to the Supreme Court or High Court. If the justice of the High Court feels that the petitioner has prima facie established a case of disappearance, he orders a district court magistrate, police official, or other person to conduct an inquiry into the facts. Harjinder Kaur and Pritam Singh v. Punjab stresses that the inquiry is a fact-finding process, not a criminal trial requiring proof beyond a reasonable doubt.[52] The magistrate or official then submits an inquiry report to the High Court, and the High Court justice decides whether to recommend that the CBI apply for prosecution sanction under Sections 45 or 197 of the CCP. These sections require consent from the state or central government for the arrest or prosecution of public servants and members of the Armed Forces for actions undertaken in their official capacity. If the government sanctions prosecution, the CBI files a charge sheet against the accused, and prosecution begins at the special CBI court in Patiala, Punjab.[53] The High Court cannot refuse to consider a habeas corpus petition because of disputed facts, inability and inconvenience, or inappropriate prayer for relief.[54] The only requirement is that the petitioner establish a prima facie case of a disappearance. As Justice K. K. Srivastava wrote in paragraph 15 of Karnail Singh v. Punjab:
No concept of laches limits the writ of habeas corpus. |
