Reasons for Dismissing Petitions - Committee for Information and Initiative on Punjab (CIIP)

D. 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 petition-

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ers 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

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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.