V. The Failure of Other National Remedies

A. 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

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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 generisappointee 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

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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.