The Failure Of Other National Remedies

National Human Rights Commission

In January 1995, Jaswant Singh Khalra and Jaspal Singh Dhillon filed a writ petition in the Punjab and Haryana High Court to impel it to investigate their discovery of mass illegal cremations in three crematoria in Amritsar district, Punjab. The High Court dismissed the petition on grounds of vagueness, and they moved the Supreme Court. Before the Supreme Court could hear the matter, the Punjab Police abducted Khalra on September 6, 1995, from outside of his house. Paramjit Kaur, Khalra’s wife, immediately filed a habeas corpus petition in the Supreme Court, hoping the Court could secure the release of Khalra before the police executed him. Unfortunately, like the victims Khalra himself had investigated, the police did not spare him. The Supreme Court ordered the CBI to investigate the abduction of Khalra, and acting under Article 32 of the Constitution, simultaneously ordered the NHRC to investigate allegations of mass illegal cremations in Punjab.[122]

The Indian government had established the National Human Rights Commission under the Protection of Human Rights Act, 1993 (PHRA). The Act gave the NHRC the investigative powers of a civil court, limiting its enforcement powers. Under Section 18 of PHRA, the NHRC can only make recommendations;[123] thus, ultimate enforcement rests with the Indian government. The NHRC has itself often criticized the government for needlessly delaying or failing to implement its recommendations.[124]

In addition to these handicaps, two sections of the Act severely restrict the NHRC’s ability to provide any measure of justice to victims of disappearances in Punjab. Section 19 of the PHRA immunizes members of the armed forces by preventing the NHRC from investigating allegations of human rights violations by members of the armed forces; the NHRC can merely seek a report from the central government.[125] Section 36(2) limits the NHRC to investigating allegations of abuses that have occurred within a year of filing, possibly to prevent an overwhelming inflow of claims.[126] Not only does this protect the police from any of its violations that occurred prior to the establishment of the NHRC, but this section also fails to recognize that “many victims approach the NHRC as a last resort.”[127]

In December 1996, when the Supreme Court referred Khalra’s findings to the NHRC, it gave the Commission an open order to investigate disappearances. In its September 10, 1998 order, the Supreme Court stated that the NHRC was a sui generis appointee of the Supreme Court empowered to conduct investigations, unconstrained by any of the limiting sections of the PHRA mentioned above.[128] Subsequently, however, the Commission itself limited its mandate. In its January 13, 1999 order, the NHRC placed a territorial restriction on its investigation, narrowing its mandate to the three crematoria in Amritsar district.[129] Also, the Commission limited its study to cremations, ignoring the beginning point of enforced disappearances, with illegal cremation marking only one possible end for victims. The petitioners appealed, but the Supreme Court declined to clarify the mandate of the NHRC. Amnesty International criticized the NHRC for proposing “the minimal role that it could play in response to those directions.”[130]

After four years of debating these preliminary issues and deciding to restrict the inquiry, the NHRC collected claims and offered limited redress to eighteen families. In its August 18, 2000 order, the NHRC agreed to the Punjab government’s proposal to offer compensation of 100,000 rupees ($2000) with no admission of wrongdoing or prosecution of officials.[131] The order admitted that the Punjab government had “neither conducted any detailed examination in these cases on merits nor [did] it admit[ ] its liability.”[132] The order concluded: “It does not matter whether the custody was lawful or unlawful, or the exercise of power of control over the person was justified or not; and it is not necessary even to identify the individual officer or officers responsible/concerned.”[133] With its dismissal of liability and illegal detention, the Commission flouted the rights to life and redress of Articles 6 and 2 of the ICCPR, respectively.

The eighteen families unanimously rejected the government’s offer and moved the NHRC to expand the inquiry into enforced disappearances in all of Punjab. Six years after it received this case, the NHRC agreed to investigate illegal cremations in Amritsar district, but held fast to its decision not to expand the inquiry beyond Amritsar or to disappearances in general. However, the NHRC still has not begun to investigate personal claims. In June 2001, both parties to the litigation were poised to begin investigating the police records collected by the CBI in 1996. Modalities of investigation, however, remain tied up in motions. Thus, six years later, the NHRC has not investigated a single case of illegal cremations.

People’s Commission

In his election manifesto, Chief Minister of Punjab Prakash Singh Badal promised to create a People’s Commission to examine complaints of human rights violations.[134] After he failed to deliver on his promise, in 1997 the CCDP organized a private panel of three retired justices to hear people’s petitions about abuses committed by the police. Justice D. S. Tewatia, a former Chief Justice of the Calcutta High Court, chaired the panel, accompanied by Justice H. Suresh, a retired judge of the Maharashtra High Court, and Justice Jaspal Singh, a retired judge of the Delhi High Court. According to Article 1(1) of its Rules, the Commission aimed to investigate complaints of summary executions, mass illegal cremations, illegal abductions, custodial torture, and enforced disappearances in light of national and international law. Ultimately, it hoped to suggest avenues of redress for victims.

Amidst great popular support, the Commission held its first sitting from August 8 to 10, 1998 in Chandigarh. The first and only sitting of the Commission drew a standing crowd. People who, despite influence, knowledge, emotional strength, and a desire for justice had not approached the judicial system, now eagerly submitted petitions for examination by the panel.

In the face of this popular support, advocate Sudershan Goel filed a petition in the High Court on September 3, 1998, accusing the Commission of creating havoc, diminishing police morale, inciting enmity, setting up a parallel judicial system, and serving as a front for foreign interests. To prove the Commission’s support for foreign interests, Goel attached letters from the United Nations High Commissioner for Human Rights, from Amnesty International, and from a member of Britain’s Parliament, among others, asking for the release of detained human rights activists Jaspal Singh Dhillon and Kulbir Kaur Dhami.[135]

Goel also named the Union of India, the State of Punjab, and the Daily Tribune as respondents, for failing to prevent the Commission from holding its hearings and “causing a feeling of loss of governance in the minds of the people.”[136] The State of Punjab replied that the Commission had not yet created a law and order problem. Thus, despite any desire the State may have had to stop the Commission, it could not proactively prevent the Commission from carrying out its activities.

The High Court, however, banned the People’s Commission for creating a parallel judicial system. The Court dissected the language used by the Commission, resting on dictionary definitions to support its decision. “Commission” implied a legal body, and “summons” implied a legal action; thus, the privately organized People’s Commission was attempting to usurp the powers of the judiciary.[137] The Court glossed over the Commission’s Rules where the Commission affirmed that no group had to recognize the Commission and all participation was voluntary.

The Court took issue with the Commission’s plan to re-evaluate judgments passed by the High Court. Article 5(2) of the Commission’s Rules states: 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,” the Commission reserved the option to re-evaluate the judicial decision. Although Supreme Court opinions had affirmed the right of Indian citizens to criticize and analyze judicial decisions, the High Court balked at this transparency.

Goel’s petition and the High Court’s decision mirrored many of the problems petitioners faced with habeas corpus petitions. Neglecting to take note of the limitations imposed by the inefficiency, corruption, and inefficacy of the lower courts in handling police abuses, Justice Dutt of the High Court wrote in his opinion for the People’s Commission case: “The complaints of heinous nature like murder, abduction, rape etc. can be taken cognizance of in the Criminal Courts in India without any limitation standing in the way.”[138] He did not, however, subject Goel to the same recommendation. Instead, Justice Dutt ruled in favour of Goel’s petition before any law and order issue had occurred.