PRESS RELEASE ON PROPOSED POLICE AMNESTY

28 AUGUST 2001

Committee for Cordination on Disappearances in Punjab

PUNJAB ATROCITIES AND THE CAMPAIGN FOR AMNESTY:

AN APPRAISAL

We have called this press conference to state our positions on the ongoing campaign for amnesty to uniformed offenders of human rights in Punjab and elsewhere in India and the legal proposals emanating from the Union Home Minister’s promise to provide “relief” to those facing prosecution, first made at Jalandhar on 18 August 2001. The campaign for impunity is not new. But its latest orchestration, with the television and the mass media ethereally funneling its ideological objectives across the frontier between the State and the civil society, has an edge of audacity that commands attention. First, we shall make a quick appraisal of the events that form the backdrop to the renewed campaign.

In the matter of enforced disappearances leading to secret cremations in Punjab, the National Human Rights Commission passed an important order on 15 February 2001. The order said that every effort had to be made to obtain the necessary particulars of all the unidentified cremations at Amritsar. Pursuant to this order, the Commission allowed all the parties involved in the case to inspect the CBI’s record of investigations into the matter. The record was made available to the Commission for inspection by all the parties, including the Committee, in early June 2001.

On 8 June 2001, K. P. S. Gill published an article in the Hindustan Times titled “Man in uniform demands justice”. The article argued that “those who risked their lives in the defence of the State” were being subject to “a humiliating process of prosecution in a multiplicity of cases that were intentionally and maliciously lodged … as a strategy of vendetta by the front organizations of the defeated terrorist movement.” The article accused the CBI of operating under “enormous pressure” from “powerful political lobbies and by sections of the superior judiciary”. Gill asked: “How long will men continue to fight and to die - and yes, to kill - for India, if no one in the country speaks for the men in uniform? Can the power of the State survive the erosion of the confidence and authority of those who protect it?”

This is asking for the license to kill and to subvert the constitutional processes that threaten to expose the ghastly rituals of torture and murder, which he believes to be necessary to exorcise the specter of militancy. These ghoulish deeds were perpetrated under his command by a small number of handpicked officials. We believe that the vast majority of Punjab police, which totals about 80,000 men and officers including its Indian Reserve and Commando Battalions, are as upright and morally scrupulous as any other section of people in our society. By comparing them all ad nauseam with a handful of officials who stand accused of sordid human rights crimes, Gill is not augmenting the morale or the image of the Punjab police. He is also not enhancing the impression of India’s institutional integrity by accusing the CBI of operating under the pressure of political lobbies, of forging evidence against policemen and by equating the constitutional process of accountability with judicial vengeance. Driven by the negative vigor of hubris, Gill has managed nothing but to repulse possibilities of justice and reparation to hapless victims of State atrocities in Punjab.

A large number of Punjab officials, including policemen, were present in the conference room of the National Human Rights Commission when the Committee’s counsel went there to inspect the CBI’s record of investigations on 26 July 2001. These officials objected when the Committee’s counsel began to inspect a bundle of files. K. L. Gandhi, Assistant Registrar of the Commission, instructed the counsel to stop the inspection and decided to place the objection before the Commission for a decision. The Committee was told that the Inspector General of Police (Litigation), Punjab had moved an application before the Commission objecting to its inspection of the documents. The Committee’s counsel also submitted an application to place on record his protest about the manner in which the process of inspection had been disrupted by the Punjab officials. The application pointed out that as respondents and accused in the matter, they had no control or authority over the CBI’s records and had no locus standi to refuse the inspection after the Commission had explicitly permitted it. On 7 August 2001, the Commission asked all the parties to file their responses to these objections and listed the matter for further hearing on 23 August 2001. The response filed by the Inspector General of Police, Litigation, “strongly apprehended that if any of the petitioner is allowed to inspect the record, his purpose will not be really to facilitate and expedite the process of identification, rather petitioner will be entrusted to rake-up undue and irrelevant issues, with the aim of obstructing the process of identification.” The response also claimed the status of privileged documents to certain police records under section 123 of the Evidence Act, which prohibits even the courts from inspecting them. A separate response from the advocate for the police officials said “if the members of the petitioner Committee are allowed to have free access to the investigation carried out by the CBI, the names of the individual police officials are likely to be disclosed resulting into threat to their life and lives of their family members…”

This is the background to the 18 July announcement by a group of police officials, made in Jalandhar, to return the President’s gallantry awards bestowed on them “for bravery for fighting and stamping out militancy from Punjab” and the array of confessions and their retractions that followed. On August 19, the Union Home Minister spoke in a function organized by the Hind Samachar group of newspapers at Jalandhar to announce that the government was “contemplating steps to provide legal protection and relief to the personnel of the security forces facing prosecution for alleged excesses during anti-insurgency operations” in Punjab, Kashmir and the northeastern provinces of India. According to a report in the Asian Age, the Union Home Minister indicated “some form of general amnesty” and suggested that “forces deployed to combat terrorism anywhere in the country must be given special rights and powers.”

K. P. S. Gill welcomed the move and, according to a story in the Indian Express, repeated his charge that the cases against police officers “were based on concocted evidence by the investigating agencies acting under undue and extra-constitutional pressures.” The Home Minister’s announcement was hailed also by the Communist Party of India and the Congress Party, which promised to “withdraw all the cases against the innocent cops” if voted to power. The Union Law Ministry relayed ambivalent signals. Punjab’s Chief Minister Prakash Singh Badal also seemed to be in two minds. A report in the Tribune on 24 August said that he did not endorse the proposal of a blanket amnesty from the fear that his rivals could use it as an election issue. Speaking to the press in Patiala on the 24th of August, Badal claimed that his government had played no part in registering cases against the policemen. As of today, the Union government is supposed to be preparing a draft Bill to provide special powers to the security forces engaged in counter-terrorism operations. It is not very clear what measures of pardon or relief, promised by the Union Home Minister at Jalandhar, the draft Bill will incorporate. It is, however, important that the people who have led, participated in or been exercised by this debate be aware of the basic legal provisions that guide the involved issues.

The sections 45 and 197 of the Code of Criminal Procedure, 1973 protect members of the Armed Forces and public servants from arrest and prosecution for actions that develop from discharge of official duties by requiring, as appropriate, consent of the Central government or the State government. The requirement applies only to those acts that attend the performance of tasks belonging to official duties. In Shembhoo Nath Misra Vs. State of UP, AIR 1997, S. C. 2102, as also in a number of older judgments, the Supreme Court clearly declared that no sanction is required for prosecution of malicious actions that do not come within the ambit of official duties. Sections 76 and 79 of the Indian Penal Code clarify that injurious acts which engender from mistakes of fact and not mistakes of law and are committed in good faith do not invite prosecution. Willfully abducting people, torturing and eliminating them in custody, and then secretly disposing of their dead bodies are not acts committed in good faith or from the conviction of their legal necessity.

The obligations of police agencies under section 154 of the Code to register and investigate complaints of cognizable offence and the requirement to immediately record in writing “every information relating to the commission of a cognizable offence” are unencumbered by any restriction on the basis that the alleged offenders are members of the armed forces or public servants.

When the direction to investigate a complaint comes from the exercise of Article 226 or 32 of the Indian Constitution, it has to be done under the supervision of the High Court or the Supreme Court without bothering about political or group interests and has to be followed up with expeditious action. The State is required to cooperate in setting up the necessary mechanism to pursue the cases before the evidence is lost.

Likewise, the powers of pardon are clearly defined under the law. The sections 306 and 307 of the Code allow grant of pardon to accomplices of crimes on the condition that they make “a full and true disclosure of the whole of the circumstances” “relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.” Beneficiaries of pardon under 306 and 307 lose their protection and become subject to trial by the stipulations of section 308 of the Code if they willfully conceal anything essential or give false evidence and not comply with the condition on which it has been rendered.

Withdrawal of prosecution under section 321 of the Code is provisional to consent by the court. The public prosecutor can neither move the court mechanically for withdrawal nor can the court grant it in a perfunctory fashion even after recommendations by a Review Committee. Each case has to be examined separately and the retraction of prosecution has to be valid according to settled principles and not be extraneous to the interests of justice.

The Constitution under Articles 72 and 161 confers the power on the President of India and the Governors of the States to “suspend, remit or commute sentences in certain cases”. But the “mercy jurisdiction” of the President and the Governors to absolve punishment becomes operative only after the courts have delivered conviction.

Likewise, section 432 of the Code confers power on the government to suspend or remit punishment for an offence, “without conditions or upon any conditions”. Once again, the power to be exercised after sentence has been rendered remains subject to judicial opinion. If the power is improperly exercised, the higher judiciary can invalidate it. Further, the power of remission or commutation does not avail in cases that involve sentence of imprisonment for life and for offences in which death is one of the punishments provided by law. It also does not apply after a sentence of death has been commuted into imprisonment for life. These are the restrictions under section 433-A of the Code of Criminal Procedure Act, 1973 and sections 54, 55 and 55-A of the Indian Penal Code.

These are the basic stipulations of law that should govern any legislation on the grant of pardon, respite or relief to members of security forces accused of human rights violations, which the Union government may introduce. More fundamentally, the right to life and liberty under Article 21 of the Constitution cannot be taken away outside the legal procedure even in a state of declared Emergency, which Punjab never witnessed. The 44th Amendment Act of 1978 provides that the suspension of fundamental rights under any law or executive order in the situation of a proclaimed Emergency, under Articles 358 and 359 of the Constitution, can be shielded only if the suspension is limited to the purpose of the Emergency through a clear recital. It also provides that the enforcement of right to life and personal liberty, guaranteed by Article 21 of the Constitution, cannot be destroyed even in such a situation.

No legislation introduced in the Parliament can retrospectively cancel out the consequences of established violations of fundamental human rights guaranteed in the Chapter III of the Indian Constitution. It is also an established principle of construction of statute that where an enactment repeals both the substantive rights and obligations of the parties as well as the procedure to enforce them, the old rights and obligations are still to be determined by the old procedure.

As the aforementioned discussion shows, the law can offer no relief to those who have insulated their hearts to the humanity of the victims of their crimes and refuse to repent them. However, we can forge innovative ways to conciliate and rehabilitate all victims of mutually reinforcing situations of hate and violence, as in South Africa, if we can bring them together on a common commitment to avoid the recurrence of evil by seeking out the truth and expressing contrition for past abuses of power.

Ram Narayan Kumar