The Chapter III of the Indian Constitution is a unique compendium of inalienable human rights including the “guaranteed remedy’ of Article 32, which empowers the Supreme Court to enforce them against the executive and legislative aberrations.  The working of this important provision in the Constitution, described by Ambedkar as ‘the very soul of the Constitution” [1] , is the main focus of the discussion in this paper.

 Article 32 confers extraordinary powers on the Supreme Court to enforce the guarantees of the Chapter III, including the rights to life and liberty, freedom of expression and association, and equality before the law. The powers available to the Supreme Court under its regime cannot be curtailed by the legislative and executive operations of the State. The mandate of the Article to protect the fundamental rights of citizens against every complaint of their violation is binding also on the Supreme Court.  It cannot refuse to entertain a petition under Article 32 on the grounds of disputed facts, inappropriate prayer or the court’s inability and inconvenience. [2] Under Article 226 of the Constitution, the High Courts possess the same powers to enforce the fundamental rights of citizens while retaining the discretion to entertain or reject a petition. [3]

Article 32 is an extraordinary bulwark against possible violations of human rights by the State agencies, and it is reasonable to assume that within its regime widespread abuse of police powers, systematic persecution of disgruntled communities, suppression of political dissent cannot occur. Why are then the ground realities, observed and reported by both the domestic and international human rights organizations, so diametrically contrary to the promise of this theoretical position?  The question requires a discussion on the contradictions between the constitutional law, as the conceptual framework, and the rule of law as the emanation of power, a pragmatic enterprise run by the Political Establishment, which by the manipulation of metaphor, interpretation and iteration in the context of the State’s arbitrary Will becomes its antithesis. Henry R. Glick points out that law alone does not explain judicial decisions. To understand how fundamental complaints by citizens against the State are settled by the courts, we have to understand their place and propensities within the structure of political authority. [4] Therefore, we can hardly understand the constitutional guarantees of human rights and their denial in actual working of the legal institutions unless we take into account the political and psychological forces that act on the ‘performers of the law’ and impinge on the system as it is supposed to work on paper.

Let us recall the Supreme Court’s judgement about the period of National Emergency from June 1975 to March 1977 when the Prime Minister Indira Gandhi suspended all the fundamental rights to sustain her unpopular regime on the strength of harsh measures like political arrests and press censorship. The judgement falls in the middle of India’s fifty years of constitutional history, and gives us a pivotal view to survey the conflict between the Will of the State and the human rights jurisprudence in the annals of the Supreme Court. Upholding the suspension of fundamental rights in that period, Justice M. H. Beg had said: “The Will of the State, indicated in some form of expression, is the law, the subject of jurisprudence… no preexisting rule is the measure of that Will.” [5]

This infamous judgment of the Supreme Court borrows the language of the fourth chief justice of the United States, John Marshall, which he employed to rule that “judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.” [6] In reality, Marshall’s positivistic definition of the courts as instruments of law and of the judicial discretion as a function to discern and follow the will of the legislature can in no way justify the Indian Supreme Court’s endorsement of the executive coup during the Emergency. However, as Ingo Muller’s discussion of the German judicial system under the Nazi regime shows, the tendency to acquiesce with the evil is immanent in a positivistic understanding of the law that is not guided by moral principles of a constitutional origin.  The lawyers and judges in Germany, as in India, had been reared in a long established tradition of Rechtsstat, a State based on the rule of law. As they abandoned the Socratic logic of historically transcendent moral supremacy of human rights over the might of the State, the German judiciary became a political adjunct to the law of Fuehrer Principle: “The judges are bound by laws. The laws are the orders of the Fuehrer.” [7] The point explains not only the German crimes of justice in the Nazi era, but generally the decline of judiciary as a legal instrument of the State’s abusive Will when it strays away from the epistemological imperatives of moral principles embedded in a constitution. Professor Sotirios A. Barber suggests that judiciary, in order to maintain its sanctity, must always impute inalienable values and rights to people even when the State decides to take them away. [8]

The Emergency decision of the Indian Supreme Court is often dismissed, in legal and political circles, as an unfortunate aberration that has been rectified by the effects of the forty-third amendment of the Constitution and the subsequent judgments of the Supreme Court on the primacy of fundamental human rights in deciding the validity of all legislative and executive actions of the State. [9] But is the point really that simple? Was the judgement in the A. D. M. Jabalpur really an aberration? Was it not rather the high point of an approach that already had a clear history? Does not this approach, which subordinates the fundamental rights of citizens to the arbitrary powers of the State, survive the infamous Emergency judgement to contaminate the subsequent performance of the judiciary? We must remember what William O. Douglas, another US Supreme Court justice, had said: “A nightfall does not come at once, neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air…” Let us briefly examine how this logic of Justice Douglas reflects on the human rights performance of the Indian Supreme Court from 1950 when it became an institution under a democratic constitution.

A.K. Gopalan, a communist agitator in the State of Madras, was arrested in December 1947 on charges of delivering provocative speeches. Gopalan was also held preventively under the Madras Maintenance of Public Order Act, a colonial piece of legislation so that he would not be released from the State custody even if the trial court acquitted him from the regular case. This happened in October 1949. In January 1950, India adopted its Constitution and also passed the first Preventive Detention Act, which the government used to renew Gopalan’s detention. Gopalan petitioned the Supreme Court for a writ of habeas corpus on the ground that the provisions of the Act contravened the fundamental rights guaranteed by the Constitution. He also argued that the renewal of his preventive detention was mala fide since the government could not construe a criminal intention on his part, to be prevented by his continued detention, as he had already been a prisoner for more than two years. But the Supreme Court upheld the Act and the renewal of his detention. The judgement pointed out that by adopting the phrase “procedure established by law” instead of “the due process of law” the Indian Constitution had given the legislature the final work to determine the law. And that “it is not for the court to question the wisdom and policy of the Constitution…” [10]

In the case of Ram Krishan Bhardwaj, the Supreme Court took the lofty view that “preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced.” [11] Bhardwaj was an important member of a Hindu right wing party in Delhi that had started “an unlawful campaign… for defiance of the law, involving violence” to pressurize the Union government to ignore the popular demand for the State autonomy in Jammu & Kashmir.  The March 10, 1953 order to detain him accused Bharadwaj of making inflammatory speeches to excite violence. The Supreme Court considered these grounds of detention to be unreasonably vague. It was the constitutional right of the detainee to receive “the particulars of the grounds”. The right having been infringed, the detention became illegal. [12] The next example will show the situations in which the rule terminates.

Ujagar Singh and Jagjit Singh were members of the Communist Party in Punjab. They were detained under the East Punjab Public Safety Act in July 1948. In March 1950, their detentions were renewed under the Preventive Detention Act of 1950. The grounds of detention, which they received a month later, verbatim repeated the old charges:  “You tried to create public disorder… by circulating and distributing objectionable literature issued by underground communists…” And, “You were engaged in preparing the masses for a violent revolutionary campaign". [13] Both Ujagar Singh and Jagjit Singh complained that they had already been in the State custody for more than eighteen months. A mechanical repetition of the old charges by the authorities showed mala fide as they could have no factual basis to claim their current validity. They were also too vague to be rebutted on specific terms. The court, however, found no merit in these arguments. As the petitioners had already been in custody for long, the authorities could not attribute fresh activities to them. As to the delay in communicating the grounds of detention, it occurred because there were nearly 250 other detainees also requiring attention. The grounds of detention were no doubt vague. But “mere vagueness of grounds standing by itself and without leading to an inference of mala fide is not a justiciable issue in a court of law…” [14]

The next example shows how the issue of mala fide becomes undeducible when the State action takes the cloak of secrecy in “the public interest”.

Lawrence Jachim Joseph D’Souza was a practicing lawyer before the Bombay High Court. As a Roman Catholic from the Portuguese enclave of Goa, D’Souza was involved with the question of its future and publicly maintained that India should not use the military option to take its possession. This was June 1955, five and a half years before the Indian military occupation of Goa in December 1961. On June 9 1955, D’Souza was taken into custody under the Preventive Detention Act, 1950. The grounds of his detention accused him of engaging in “espionage on behalf of the Portuguese government…” [15]

D’Souza claimed that his detention was mala fide, the ulterior objective being to destroy his freedom of speech and professional involvement with the Goan affairs. The government was free to try him under the Official Secrets Act if it had any evidence of his involvement in espionage. The grounds of detention served on him were slanderous, but the communication did not contain anything concrete for him to rebut. D’Souza also pointed out several instances of official harassment from the immediate past, which disrupted his professional life: In August 1954, his house was searched, and his books, papers and printed material on Goa, also his typewriter, removed. He was illegally detained at a police station and manhandled. In February 1955, D’Souza had rendered professional service to a Portuguese soldier from Goa who had been arrested on the charge of entering India without the necessary permit. The Chief Presidency Magistrate of Bombay ordered his release on bail. But the police foiled the order by whisking the Portuguese soldier away before he could procure the requisite sureties. This background of events, D’souza claimed, indicated the want of bona fide on the part of the detaining authorities.

The government of Bombay claimed that it was not in the public interest to disclose the evidence on which D’Souza had been arrested. The court agreed that the question of their vagueness had to be decided in view of the circumstances. Disclosure of facts considered against public interest cannot be required. The detention was, therefore, legal. [16]

We notice that the police foiled a judicial order of bail by whisking its beneficiary away before he could organize the necessary sureties. The rule of bail under Sections 167, 437, 438 and 439 of the Code of Criminal Procedure became an important axiom of the criminal trial system following the Supreme Court’s decision in Gudikanti Narasimhulu Vs. Public Prosecutor. The aim was to avoid unreasonable incarceration in the following circumstances: (a) the investigations are delayed beyond the statutory limits of time when the accused is already in custody; (b) the court develops doubts on the maintainability of charges, and (c) the accused is not likely to abscond the administration of justice. [17] The following example shows the Supreme Court sanctifying the coercive methods by which the State denied the benefit of bail to Simranjit Singh Mann, a Sikh radical leader who resigned from the Indian Police Service in June 1984 to protest against the military storming of the Golden Temple of Amritsar.

Mann was arrested, along with four companions, at India’s border to Nepal in November 1984. The police registered a case against them under various sections of the Indian Penal Code on the main charge that they were involved in waging a war against the government of India. Simultaneously, Mann and his companions were preventively detained under the National Security Act. The case of waging war had been registered on the basis that Mann, at the time of his arrest, possessed copies of several critical letters he had written to the Indian authorities, including the President of India, about the June 1984 army assault on the Golden Temple. As the prosecution was unable to file a charge sheet within the stipulated period of time, the Judicial Magistrate ordered their bail on the condition that the sureties must be obtained locally. However, by the effect of their preventive detention under the National Security Act, Mann and his companions remained in custody. On December 8, 1985, the High Court of Haryana and Punjab quashed their detention under the National Security Act. In the face of this order, the government had no choice but to release them as they had already been bailed out from the sedition case. However, the police managed to intimidate the persons who had furnished the bail bonds to cancel them. Others who volunteered to stand surety were also either scared away or rejected by the Magistrate. Meanwhile, the prosecution claimed that it had completed the investigation. On January 31 1986, their case was transferred to the court of a Special Judge. This court, as also the High Court of Bihar, refused to enforce the bail order. Mann and others filed two separate petitions before the Supreme Court challenging both the legalities of the proceedings as also the tactics adopted by the prosecution to thwart their release on bail. [18]

In its September 19 1986 order, the Supreme Court agreed that letters written by Mann were the only material basis for the charge that he and his companions waged a war against the government of India. But this basis was enough to justify investigations. As the “investigating agency suspected a conspiracy to wage war, it was duty bound to search for evidence…” [19]

So, where was the evidence after nearly two years of investigations? The court explained that the task of gathering evidence in such cases was not easy “…when the facts are to be discovered … in cases of suspected conspiracies … of a sensitive, political nature. The investigating agency cannot, therefore, be blamed for the slow progress they made in investigating a case of this nature”. [20]

But the simple requirement of criminal trial is that the prosecution should possess enough evidence to frame the charges. If the investigating agency failed to gather the evidence to justify the charges after the accused had already spent twenty months in custody, the charges had to drop. But the Supreme Court would not express any opinion on this question: “It is not a matter to be investigated by us in a petition under Article 32 of the Constitution.”

The legal right to bail was, no doubt, a justiciable issue. [21] But the Supreme Court pointed out that “the order was made long ago, but for one reason or the other, the accused failed to take advantage”. The court refused to exercise its discretion to interfere, “having regard to the entirety of the circumstances”. [22] The case against Mann and his co-accused never progressed to the stage of trial, and was withdrawn in December 1989 after Mann, still a prisoner, was elected to Parliament from a Punjab constituency with an unprecedented majority.

The following is one more example of the double standards which the higher judiciary has maintained in dealing with politically sensitive cases.

In early 1986, Bhim Singh, a member of the Legislative Assembly of Jammu and Kashmir, was detained for three days without having been produced before a magistrate, as required under the law. On a petition from Bhim Singh, the Supreme Court came down severely against the authorities: “If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals”. The court ruled that a mischievous detention, constituting invasion of fundamental rights, cannot be remedied only by a simple order to release the prisoner; it also requires monetary compensation. [23]

The principle of monetary compensation in such cases was already established by the earlier decisions of the Supreme Court. [24] However, the Supreme Court failed to apply this principle on discovering that the security forces in Punjab had rounded up dozens of children from the Golden Temple of Amritsar, and had lodged them illegally for months in special security prisons. This happened during the June 1984 operation conducted by the Indian army. The children along with their parents had come to the temple on a pilgrimage when the authorities imposed a curfew in the city for the impending army action. The Supreme Court ordered a judicial inquiry when a prominent social worker, Kamala Devi, brought the matter of these illegally detained children to its notice through a criminal writ petition. [25]

The report of the judges disclosed “a sad state of affairs”. Twenty-four children from the age of one to sixteen were being held in the Special Security jails. Some of the children were accompanied by their mothers, but their fathers were untraced. Presumably, they had been killed in the army action. The Supreme Court concluded: “It is quite obvious to us that these women and children must be devotees and pilgrims visiting the Golden Temple who have unfortunately been caught by the circumstances in the action that took place on June 5, 1984… We are unable to find any justification for their detention. All of them are directed to be released forthwith.” [26] The Court also directed the State of Punjab to report the authority under which the children were held, and to take the steps to trace their parents. Three weeks after issuing the direction, the court observed that “we have no response from the State of Punjab… They have not cared to file any statement.” [27]

This was not the end of the matter. There were more children, rounded up from the Golden Temple, in Punjab prisons than Kamala Devi had been aware of. To avoid their detection, the Punjab authorities transferred several of them to the high security prison in Nabha. A correspondent of the Indian Express found out that two of them, Jaswant Singh and Kewal Singh, were only eleven and fifteen years old. On the basis of this story, which appeared in the Indian Express on October 24 1984, a Sikh religious organization moved the Punjab High Court to demand their release. [28] Justice M. M. Punchi heard the petition and disposed it of with a terse order: “The petition is extremely vague and tends to ask for a fishing inquiry. Dismissed.” M. M. Punchi, later elevated to the Supreme Court, retired as India’s Chief Justice.

These examples describe the dexterity of constitutional interpretation, which gives the judges a great deal of discretionary power over individual petitioners, to dispense justice arbitrarily and contrary to the mandate of equality before the law, after evaluating their political loyalties.

The phenomenon is not unique to India. Comparative studies in judicial protection of human rights in several advanced countries show that India is by no means the only nation where the ideals of certainty of facts, impartiality of the judges and the rationality of law fail against the forces of politics and prejudice. [29] Even in the United States, as William O. Douglas points out, the police have routinely used the labels like “breach of peace” or “disorderly conduct” to break up and arrest people who protest against the Establishment in unorthodox ways. Paranoid fears of communism, first generated by senator Joseph McCarthy and subsequently sustained by the American Establishment, influenced even the higher judiciary to jettison the libertarian principles of the American constitution. Although the First and the Fourteenth amendments require that the Congress shall not make laws that abridge their guarantees, the judiciary construed that “it may make some laws” to abridge them. The courts ruled that a person may not be punished for believing in, reading, teaching or preaching communist doctrine, but may be punished for being an “active” advocate, for “conspiring” to propagate it, for creating a “clear and present danger” of converting public opinion to adopt that creed. Thousands of people suffered by the American Establishment’s search for the ideological aberrant, especially through the security-loyalty hearings instituted in 1947. Highly qualified people were weeded out of the governmental work for opposing the American support to the French in Vietnam, for predicting the fall of Chiang Kai-Shek in China, later for criticizing the American involvement in Vietnam, for attending social gatherings critical of the Establishment or belonging to civil liberties organizations. Many suffered even for owning Paul Robeson’s records, the works of Picasso and Matisse. Others came under scrutiny for studying the Russian language. Sympathizers of Henry Wallce, 33rd vice president of the United States from 1941 to 1945, were blacklisted after he broke with the Democrats in 1948 to form a left-wing political alliance that advocated closer cooperation with the USSR. America’s foremost China expert, John Paton Davies, had to undergo examination by nine security hearings, before he was dismissed from the Foreign Service by John Foster Dulles in 1954. [30]

Another illustrative example, in a different context, is provided by Michael Lobban’s discussion of the 1970s political trials of people in South Africa who were opposed to the Apartheid. The discussion on the courts’ responses to allegations of torture and custodial violence against the defendants are particularly revealing of the role of prejudice and systemic bias comparable to our Indian examples. The State had a ready stock of explanations to disclaim its atrocities: In one case of custodial death, it claimed the untimely demise from a heart attack although abrasions on the body, cracked ribs and subarachonoid hemorrhages showed custodial violence. The judges ruled that white policemen “could not lie” and dismissed the allegations. [31]

India’s own example shows that a formal independent of the judiciary within a constitutional democracy does not guarantee the protection of fundamental rights, if the groups targetted for abuses happen to be out of favour with the Political Establishment. In its preeminently political environment ridden with social and communal divisions and their antipathies, members of the judiciary too become susceptible to emotions and prejudices common to their fellow citizens, and get away by inflicting social harm on demonized communities because of their negative group identity in the society. [32] The problem cannot be remedied by refining the rhetoric of rights in the constitutional realm since members of the judiciary are quite adept in cynically manipulating legal language to reach partisan and self-interested ends. [33] To dwell endlessly on constitutional principles without an empirical appraisal on the role of politics that frustrates them, can only promote hypocrisy and their reduction to parochial ethics. We shall illustrate, from the experience of our own human rights involvement in Punjab, how the power of the judges to orchestrate the law, in spite of the guaranteed remedy of Article 32, leads to systematic destruction of fundamental rights of the State’s political enemies.

Punjab, as is commonly known witnessed a bloody period of unrest from 1984 to 1994, that resulted from the Sikh political agitation to obtain a radical measure of political devolution from the Indian Union and the latter’s resolve to ruthlessly suppress it. The domestic and international human rights organizations, which have monitored the situation in Punjab, accuse the State agencies of committing serious human rights abuses on a massive scale. Our own exhaustive documentation on the subject shows that illegal detention, enforced disappearance, custodial torture and murder were routine aspects of the strategy adopted by the State agencies to stamp out the Sikh unrest. [34]

In January 1995, Jaswant Singh Khalra, a human rights worker from Amritsar, released some official documents to show that the security agencies in Punjab had been secretly cremating thousands of dead bodies labelled as unidentified. Khalra suggested that most of these cremations were of the people who had earlier been picked up on the suspicion of separatist sympathies. With his evidence, Khalra moved the Punjab High Court to ask for an independent investigation. [35] But the court dismissed the petition with the remark that he had no locus standi in the matter.

Following the dismissal, one of us along with Khalra, traveled extensively in Amritsar to review and corroborate the evidence he had gathered. The investigations provided the basis on which the Committee for Information and Initiative on Punjab, a Delhi based human rights groups, moved the Supreme Court of India to demand a comprehensive inquiry. [36]

On September 6, 1995 morning, it was Khalra’s turn to disappear: he was kidnapped from his Amritsar home by the Punjab police officials. In November 1995,  the Supreme Court instituted two inquiries to be conducted by the Central Bureau of Investigation (CBI). The first inquiry aimed to determine what happened to Khalra. The second inquiry intended to establish the substance in the allegations, which Khalra had made before himself disappearing. In July 1996, the report of the first inquiry held nine officers of the Punjab police responsible. In December 1996, the report of the second inquiry disclosed  “flagrant violation of human rights on a mass scale”, and 2097 illegal cremations at three sites in the Amritsar district alone. Although the court decided to keep the full contents of the report secret, it directed the National Human Rights Commission to comprehensively investigate and to “determine all the issues”. The court’s order also said that any compensation awarded by the Commission shall be binding and payable, and the CBI will continue to investigate the issues of criminal culpability.

The Union and the Punjab governments vehemently opposed the Committee’s plea that the mandate of the Commission was to discover the depth and magnitude of all violations divulged by the CBI’s report and to restore justice through compensation and other reparative measures. The Commission’s order on the preliminary issues delivered on August 4, 1997 seemed to resolve the quarrel. It declared that the inquiry would be guided by Article 32 of the Indian Constitution, a ‘guaranteed remedy’ against infringement of fundamental rights, which conferred on the judiciary all the powers necessary to protect them. The Union government disagreed with the ruling and moved the Supreme Court for a clarification.

Before we proceed with the further developments in this case, we will have to briefly explain the key constitutional guarantees, which bind the Indian institutions to enforce and restore them. Article 32, which we have already explained, is a guranteed remedy against the infringement of the right to life and liberty under Article 21. The Article says, “no person shall be deprived of life or personal liberty except in accordance with the procedure established by law.” 

The meaning of this Article has been very penetratingly discussed in the history of Indian Supreme Court from its early days. [37] The compendious guarantee of Article 21 covers a great variety of requirements by which human life and liberty are distinguished from animal existence. [38] It prohibits mutilation of the body through which the human soul communicates with the outer world. Likewise, liberty means much more than freedom from physical restraint or the bounds of a prison.” [39] It means that there will be no knock at the door, whether by day or by night, as a prelude to a search or an arrest, without the authority of law. [40] Liberty means freedom of movement in a free society. [41]

This comprehensive view of right to life and liberty suffered a major reversal during the period of the Emergency from June 1975 to March 1977, when India came under a brief spell of a constitutional dictatorship. During this period, as we earlier pointed out, the Supreme Court justified the suspension of all the fundamental rights by the regime by equating the law with the Will of the State. [42] The perversity of this position was alleviated by the affects of the Forty-third amendment of the constitution. The amendment not only restored the fundamental rights and the power of the judiciary to enforce them, but also provided that the right to life and personal liberty cannot be destroyed even in a situation of Emergency. [43]   Subsequently, the Supreme Court pronounced that every law that imposes restraints on personal liberty, in order to be valid, must qualify the test of reasonableness and fairness. The procedure adopted by such a law must not be arbitrary, and must not excessively infringe on the variety of overlapping rights that constitute life and liberty. [44] The Supreme Court, with its powers under Article 32, is the ultimate custodian of these rights.

The powers and obligations of the Supreme Court under Article 32 are themselves inflexibly regulated by the principle of equality before the law under Article 14. The Article says: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Corresponding to the equal protection clause of the Fourteenth Amendment of the US Constitution, the Article in plain words means that all persons under like circumstances and conditions shall be treated alike and will not be subject to any kind of discrimination. [45]

The Article does not forbid legislative classification, nor does it take away from the State the powers to develop convenient categories for purposes of special laws, or for the general welfare of the people through executive orders and procedures. But such classifications must be based on reasonable grounds of distinction. [46] In order to pass the test, every law and rule of procedure must be examined to see whether they leave scope for substantial discrimination, arbitrariness or impingement of guaranteed fundamental rights. If the answers to these questions are in the affirmative, the classification would be impermissible. The circumstance or reason for classification must be clearly demonstrable. The principle of equality does not admit exceptions, even when the effected person is ready to wave it. The Supreme Court very neatly summed up all these principles for the first time in a 1978 decision, and a number of other cases thereafter. In one case, the Supreme Court said that without the effective guidance of Article 14 “Article 32 will be drained of its life-blood.” [47]

This is the quintessential summary of the law that applies in the matter of police abductions leading to secret burning of corpses.

The Supreme Court delivered its verdict on September 10 1998, under the shadows of a vehement campaign for impunity launched by the defenders of Punjab police. The order seemed ambiguous and somewhat contradictory. It said: “The matter relating to 585 dead bodies, which were fully identified, 274 partially identified and 1238 unidentified dead bodies, has already been referred to the Commission.” This emphasis on the number of bodies cited in the CBI’s report suggested that the inquiry would not encompass the wider patterns of police abductions leading to disappearances and secret disposal of bodies in the whole of Punjab. But the judgment also said: “In deciding the matter referred by this court, National Human Rights Commission is given a free hand and is not circumscribed by any conditions.”

In the wake of this order, the Commission decided to review the scope of its pending inquiry by posing the conflict of interpretation succinctly: According to the petitioners, the inquiry had to cover all incidents of  “abductions”,  “custodial killings”, “involuntary disappearances”, and “illegal disposal of dead bodies”, attributed to the State agencies in the period from1984 to 1994. The respondent governments claimed that the inquiry was limited to 2097 cases of cremations. The Commission’s order passed on January 13, 1999 decided that it was “unable to subscribe to the expansive interpretation of the scope of its task suggested by the petitioners.” [48]

With the crucial emphasis on “cremations”, the Commission was shifting the inquiry from its basis in the fundamental rights law to a very limited technical issue. By one of its absurd implications, the State did not have to account for those dead bodies that had been quartered, buried or thrown in rivers and canals. The Commission was going to examine the illegality of the cremations, but not the destruction of the fundamental rights to life and liberty, which preceded them. It was also not going to examine any case that belonged to 16 other districts in Punjab. Only the cremations of Amritsar listed in the CBI’s report came within the purview of its inquiry although there existed no method to determine the origins of the 1500 bodies described by the report as unidentified.

After failing in a review application before the Commission, the Committee moved the Supreme Court once again. [49] Its investigations to acquire further evidence had resulted in the acquisition of partial records of “illegal cremations” from six other districts in Punjab. These records showed illegal cremations of 934 bodied. The Committee had also completed a survey of 838 Incident Reports of illegal abductions leading to disappearances from all over Punjab. The survey showed that in 222 of the 838 incidents, one or more members of the families either committed suicide in despair or died under trauma. In 58 out of these 222 cases, the security forces had also illegally destroyed, damaged and confiscated family properties. In 290 cases of abductions, the persons who eventually disappeared had been seen in the police custody. In 129 cases, the surviving relatives possessed sensitive information on 390 other incidents of enforced disappearances. In 759 of the 836 incidents, the family members of the disappeared had also suffered brutal torture in the police custody. The relatives of 149 victims of disappearances approached the High Court of Punjab and Haryana with petitions for the writ of habeas corpus. Most of these petitions were dismissed following routine denials by the Punjab officials. [50]

The Committee placed all of this evidence before the Supreme Court to argue that the ‘flagrant violation of human rights on a mass scale”, as confirmed by the CBI’s report, could not be confined to the limited scope of the inquiry the National Human Rights Commission had imposed. In the second week of October 1999, the Supreme Court rejected the Committee’s petition with the remark that the Commission was proceeding satisfactorily with its mandate.

Meanwhile, a coalition of human rights groups, convened by one of us (Ram Narayan Kumar), had formed a panel of three retired judges, called the People’s Commission on Human Rights Violations in Punjab, to examine and give its findings on the complaints of human rights atrocities. In spite of the government’s attempts to frustrate the working of the panel, the People’s Commission held its first public hearing at Chandigarh from August 8-10, 1998 to receive complaints from thousands of victims from all over Punjab. [51] The successful sitting of the Commission generated hysterical reactions with all the national political parties demanding its ban. [52] The Chief of the Punjab police and other officials of the State government joined the chorus. [53] Soon, a local lawyer filed a petition before the Punjab High Court seeking a ban on the Commission’s proceedings. The petition had been filed with the blessings of the police and the political establishment. [54]

The aims and objectives of the People’s Commission derived legitimacy from the constitutional guarantees on the freedom of expression and association. There was no compulsion on any group of people or individuals to participate in its work. The panel did not break any law by hearing complaints of police atrocities from their victims. No law prevented the People’s Commission from seeking responses from policemen on complaints of human rights violations that had been made against them. The officials were free to ignore the queries to let Commission reach its conclusions without their participation.

The petition to ban the People’s Commission invoked Article 226 of the Indian Constitution, which gives the High Courts wide powers to reach injustice. Before invoking Article 226, it was necessary to show a real or imminent infringement of a vested right. The petitioner had failed to do so. But the High Court admitted the petition and after keeping the matter dangling for fourteen months pronounced its judgment on December 20 1999. The High Court’s order restrained the People’s Commission from holding public sittings, from making investigations into the cases which had already been decided by the courts, and from issuing notices to the officers of the government to appear and cooperate with its investigations. In the High Court’s opinion, the working of the People’s Commission “may… undermine the public peace, safety and tranquility of society.” [55]

The Committee had formed the People’s Commission after the Union and the State governments, the Supreme Court and the National Human Rights Commission had refused to examine the complaints of pervasive violations of the fundamental rights to life and liberty. The High Court was prohibiting the victims from expressing their anguish even in the private sphere. On May 9 2000, the Supreme Court dismissed a petition that challenged the High Court’s order on the ground that it vitiated the freedom of speech and expression, which is a fundamental right under the Constitution. It was a comprehensive victory for the forces of impunity contrary to the fundamental rights guarantees provided by the Indian Constitution and spirit of the national motto of “Satyameva jayate”, meaning “Truth shall prevail”. [56]

What are we then to think of India’s judicial system that will not recognize the constitutional guarantees of fundamental rights when the State in its wrath decides to extinguish them? Is not the law that cannot curb its offenders a travesty? Is not a legal system which, from its sympathies for the imperatives of political power, actively connives in covering up heinous atrocities seriously diseased? [57]

From the point of view of the victims, it is tempting to answer these questions with a categorical condemnation of our legal culture. However, justice like truth does not lend itself to understanding through generalizations, and can only be grasped in its specific contexts. Legal scholars like Gerald Rosenberg have argued that the courts, even when properly constituted, will always kowtow the Establishment in politically sensitive matters for the reason that they are fundamentally constrained by their ‘necessary dependence’ on the executive branch of the State. In his view, the guarantee of equal protection under the law is substantially hollow because its efficacy depends on the receptiveness of the executive and the legislative branches of the government and the sympathy of public opinion to its claims. [58]

This view, in our opinion, is too pessimistic to sustain a vision of justice beyond politics.  It is clear that the denial of justice, as in Punjab, has to do with the institutional organization of our judiciary and the primacy of political commitments it fosters. This experience should not, however, lead us to reject the original vision of human rights that had inspired the writing of the Chapter III of the Indian Constitution, including the mandate of Article 32. No doubt, it would not serve any purpose to dwell endlessly on constitutional principles without an empirical appraisal of actual practices. As a concrete first step for the ‘rebirth of justice’ in the institutional environment, we require a comprehensive review of the working of the higher judiciary, especially in the sphere of its powers to enforce the constitutional guarantees of fundamental rights. Apart from analyzing the structural conditions which hamper their realization and protection, the review should also examine whether the decisional law on fundamental human rights developed by the Supreme Court over the last five decades permits consistent interpretation and implementation. It should also explore the possibility of creating a statutory mechanism to ensure that appointments to the higher judiciary meet the standards of independence, ability and social representation, and that their functioning remains transparent and accountable. The point of such a review should be, as Richard A. Posner of the American Supreme Court suggests, to “nudge the judicial game a little closer to the science game”, a game played with a pragmatic empirical investigation of social reality, and with the insistence that “social thought and action be evaluated as instruments to valued human goals rather than ends in themselves.” [59] The review process itself, in order to be credible, should be conducted by a statutory body like a Commission which is broad-based and should also include representatives of vulnerable communities and human rights groups. Without such a process, the suggestions to enlarge the fundamental rights of citizens through further amendments in the Constitution, as made by members of the recently constituted Constitutional Review Commission, can have no meaning. [60]

Our suggestion for a comprehensive judicial review is not a bolt from the blue and has many international precedents. The Truth and Reconciliation Commission in South Africa subjected its judiciary to a thorough scrutiny, and trenchantly criticized the symbiotic relationship it maintained with the political State in the apartheid era, its failures to enforce even those laws which existed to protect citizens from political and police abuses and for continuing to resist reform. [61]   Yassir Arafat has ordered a through investigation into the working of the criminal and civil justice system in Palestine. [62] Britain has established the Criminal Cases Review Commission to investigate and rectify miscarriage of justice with a special focus on the Northern Ireland. [63] Many States in the United States including New York and California are seeking establishment of judicial ombudsman to deal with complaints about miscarriage of justice, to make the working of the judiciary more transparent and accountable, and to remedy the problems arising from poor scholastic qualifications or plain arrogance of the judges. [64] In Italy, the law provides for compensation from the State if the judges in the course of performing their duties cause serious harm, wrongful financial deprivation or loss of liberty. [65] Most of these initiatives are themselves limited, and suffer from drawbacks attendant on their specific contexts. However, we can learn from these experiments and through diverse paths of an open inquiry adapt them to convert our own judiciary into a contemporary institution, conscious of its obligation of accountability. The process requires an open debate on the basis of hard facts, an eclectic curiosity and a pragmatic commitment to justice within the inescapable pluralism and the conflicting perceptions of the good in our society. A comprehensive review of the working of the judiciary can provide us with the necessary basis to initiate this process.

The recent controversies on the issues of judicial accountability in India, involving the President, the Chief Justice, the Law Minister and the Attorney General underscore the urgency of an informed and an open debate on the subject. It is known that the President’s counsel to adequately include the weaker sections of the society, including women, as judges of the Supreme Court has been opposed by the Chief Justice with the assertion that merit alone had to be the criterion. [66] A reflective judiciary cannot be an arbitrary concept and requires a logical approach and a statutory mechanism to realize it. The point of merit is more intricate as there is no agreement on the standards to evaluate it.  The Law Ministry under Ram Jethmalani, an eminent lawyer, came out with the proposal to constitute a statutory body called the National Judicial Commission to appoint, transfer and remove judges in consultation with major interests in the society. The proposal, which has for long been in circulation, is fundamentally sound and agrees with the constitutional mandate for the appointment of judges under Articles 124(2) and 217(1), which leave the ultimate responsibility on the President of India. The Chief Justice, backed by Chief Justices of various High Courts, once again opposed the proposal. He pointed out that the apex court had already laid down a system for the selection of judges, based on the primacy of opinion of the Chief Justice as the measure of “judicial independence”, which the executive and the legislative wings of the State should not jettison. As an answer to the call of accountability and transparency, the members of the higher judiciary adopted a ‘code of ethics’, which the Law Minister called inadequate. [67] The code merely reiterates the principles of good behavior, which the judges pledge themselves to abide when taking the oath of office. It is silent on several sensitive issues, like the judges taking political and other posts after retirement and the possibilities of legal action against complaints of their misconduct and, most importantly, does not provide for a mechanism of enforcement. [68] The former Law Minister said that the government remained committed to establish a judicial commission, but was asked by the Prime Minister to resign from the Cabinet following another acrimonious exchange between him and the Chief Justice of India. The Prime Minister explained that he did not want to disturb the smooth relationship of his government with the judiciary. [69] We shall not go into the claims and counterclaims of all the personalities involved in this episode, but have referred to it to show the resistance any concrete proposal to enforce transparency and accountability on the judiciary would meet. The government’s proposal to establish a judicial commission failed to garner support from the enlightened sections of the legal community for the reason that all its objectives, the scope and the modalities have not been clearly debated. The proposal has neither originated from a comprehensive review, as we suggest, nor it belongs to the terms of reference before the Constitutional Review Commission. The only honest way to overcome the resistance to reform from within the judiciary would be to first discuss all the contentious issues in an open way and to find their solutions in conformity with the basic constitutional principles.

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