III. Analysis of the Cases

A. 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 unfavorable inquiry reports. Thus, the majority of the cases were dismissed or withdrawn.

B. 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 mili-

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tants; 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]

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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 funneling 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 favor 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.

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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.