The UN Human Rights Mechanisms and
Issues of Accountability in Punjab

Ram Narayan Kumar

November 2003

India is welded to a number of UN declarations and instruments, including the UN Charter of 1945, 1948 Convention on the Prevention and Punishment of Genocide, 1948 Universal Declaration of Human Rights, also called the Magna Carta of Mankind and described by the 1968 proclamation of Tehran as a "common understanding of the people of the world concerning the inalienable and inviolable rights of all members of the human family," and the International Covenant on Civil and Political Rights, acceded on to 10 July 1979.  India also signed, on October 14 1997, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Working Group on Enforced or Involuntary Disappearances, established in 1980, reported large numbers of enforced disappearances, attributing primary responsibility to the Punjab police. The Working Group also held that officers of the Punjab police acted with virtual impunity, disobeyed judicial orders, even ignored writs of habeas corpus and intimidated family members of disappeared persons so as to make them refrain from making complaints. The Group’s 1996/97 report also mentioned the disappearance of Jaswant Singh Khalra after he filed the petition regarding illegal cremations in the High Court, alleging that many of the cremated had been arrested by the Punjab police prior to their death and cremation. [1]

The government of India turned down an application by the Working Group to visit the country so as to discuss the matters with the competent authorities and to meet the representatives of the families of the disappeared. The representatives of the Indian government told the working group that “given the fact that the allegations of disappearances have drastically fallen in the last three years, coupled with the government of India’s commitment to investigate the old cases”, the suggestion of the Working Group regarding a visit to India is “inappropriate and unnecessary.” The government also stated that the matter of illegal cremations was now before the Supreme Court, which had instituted an inquiry by the Central Bureau of Investigation. The report concluded with the observation that under Articles 14 and 7 of the UN Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly on December 18 1992, the government of India was under the obligation to “prevent, terminate and punish all acts of enforced disappearance.” [2]

The 1997 report by the Special Rapporteur on Torture Nigel S. Rodley renewed his “outstanding request for an invitation to visit the country...”, whose refusal was a matter of concern. [3]   This report focused on widespread and systematic use of torture by the Punjab police. It said:

By a letter of 28 April 1997, the Special Rapporteur informed the Government that he had received reports indicating that the use of torture by police in Punjab was widespread. The methods of torture reported included beatings with fists, boots, lathis (long bamboo canes), pattas (leather straps with wooden handles), leather belts with metal buckles or rifle butts; being suspended by the wrists or ankles and beaten; kachcha fansi (suspension of the whole body from the wrists, which are tied behind the back); having the hands trodden upon or hammered; application of electric shocks; burning of the skin, sometimes with a hot iron rod; removing nails with pliers; cheera (forcing the hips apart, sometimes to 180 degrees and often repeatedly, for 30 minutes or more); and the roller method (a log of wood or ghotna – a heavy pestle is rolled over the thighs or calves with one or more police officers standing upon it); and insertion of chili peppers into the rectum. [4]

In the same period, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, appointed by the Commission on Human Rights in August 1982, reported widespread practices of arbitrary executions carried out by the security forces.  The 1997 annual report concluded that “despite the existence of legal provisions for the prosecution of human rights violators” there was de facto impunity in India. The Rapporteur also reiterated his interest in visiting the country, which he had already expressed in three earlier letters. [5]

And what was the government of India’s response?  Mrs. Arundhati Ghose,  then India’s Permanent Representative at the United Nations Office in Geneva, told the Human Rights Commission that it should adopt a cooperative rather an adversarial and “spotlighting” approach. Ms. Ghose said that instead of undertaking direct investigations, the Commission should work only in consultation with the government. She declared: India had a broad range of guarantees built within its constitutional system to safeguard human rights, and did not require foreign intervention: India’s respect for human rights was rooted in its ancient philosophy and culture and, even in the modern context, predated its accession to the United Nations. The tough stand taken by Ms. Ghose received praise in the Indian press, some of them greeting her as the “Iron Lady” for her capacity to “look the western bullies in the eye.” [6]

Well, the Indian State kept its pride and the world community failed to intervene when it may still have been possible to save some lives. Jaswant Singh Khalra, and several other human rights activists and lawyers, were disappeared while trying to expose the truth. The international human rights community could not do very much to save their lives. It could certainly, however, have given more attention to the cause of truth and justice it championed. The survivors and the families of the disappeared in Punjab have been, for nearly a decade, engaged in a life-exhausting and fruitless pursuit of accountability and justice in this matter before the NHRC. What has so far remained a futile struggle for acknowledgment, justice and accountability is a long Kafkaesque tale. I cannot tell you the story here but you can read parts of it in Reduced to Ashes. It is a story that reveals the contradictions between the constitutional law, as a conceptual framework, and the rule of law as the emanation of power, a pragmatic enterprise run by the Political Establishment whose realities are as banally brutal as noble are its constitutional professions.

In the interim report of the Committee, published in July 1999 and its summary later published by SAFHR in 2002 as a paper, I have discussed the suicidal bereavement of Ajayab Singh, a fifty-five year old Sarpanch of a village in Amritsar district who took poison and died inside the Golden Temple on 7 July 1997 after writing an “epistle in black ink” to explain his reasons. His eldest son Kulwinder Singh, a public servant associated with village administration, had disappeared after having been taken into police custody at a check post across Amritsar’s railway station on 20 December 1991. I have narrated the entire story at length elsewhere. The life-exhausting and fruitless pursuit of accountability and justice, which lasted more than five and a half years, finally broke Ajayab Singh’s spirits. His thirty-five years old married son with three young children disappeared in the jaws of the Punjab police, and Ajayab Singh could not do anything to establish that his son’s life had not been a chimera. The State’s power of denial became so magical that it obliterated life retrospectively against the authenticity of history. The constitutional guarantees of human rights and the rule of law seemed to have no meaning. Ajayab Singh’s epistle in black ink said “self-annihilation is my only way out of a life that leaves no scope for justice.”

Ajayab Singh’s is not an isolated example. Our survey of 838 incident-reports of enforced disappearances, conducted in the period of one and a half years from November 1997 to May 1999 and published in our July 1999 Interim Report, shows that 222 relatives of the victims died under trauma. In 500 of 838 incidents, the surviving relatives report morbid psychological effects, including clinical insanity. It is in this situation that we seek international solidarity and effective intervention to ensure that the struggle for accountability and justice they have been waging before the National Human Rights Commission is not shipwrecked. You will recognize, if you get to know these surviving families as I have, that their “inner landscapes” of expectations, in spite of their experiences of State atrocities, are not riveted to notions of revenge. They only seek acknowledgment, reparation of wrong to the extent they are legally feasible and end of impunity.

Personally, I am not familiar with how to cross the hallowed portals of the United Nations, in order to obtain a hearing and try to persuade those who control its human rights mechanisms to recognize that there is something worthwhile they can do here. We are not seeking anything dramatic or out of the ordinary. The National Human Rights Commission was created self-avowedly to help the Indian Executive fulfill its international human rights obligations and in this particular case it is drawing from the extraordinary powers of the Supreme Court under Article 32 of the Indian Constitution. In this context, it should be possible for the UN human rights mechanisms to pressure the National Human Rights Commission to embark on the path of accountability, bridge the gap between public knowledge of human rights and the official postures, offer reparations to hapless survivors and thus provide leadership in terminating the culture of impunity in India. It should use our years of methodologically sound documentation of atrocities for these purposes and we shall be happy to assist in any way we can. Those of you with experience with these mechanisms should guide us to make this possible.

In the early 1990s, when we embarked on this work in Punjab, exhilarating developments towards universal accountability with the detention of Augusto Pinochet of Chile in the United Kingdom, constitution of the Hague Tribunals to try crimes against humanity committed by ethnic warlords in the Balkans and in Rwanda and the adoption of Rome Treaty to organize the International Criminal Court seemed like a universal resolve to enforce human rights and to end the global culture of impunity. It is in the context of these trends that many enthusiastically talked about a New World Order, visualizing a global march towards democracy in political and economic sphere, remolding of the sovereignty principle to make the people its referent, and the advent of universal accountability. Perhaps, the dreamers of this vision had failed to reckon with the critical factors of military and political power and their natural tendency to interfere in history to redefine national conduct and international relations, away from altruistic and normative frameworks, into equations of self-interest and alignments of the strong against the weak.

Over the last several years, we have been watching how the early vision of a “World Order” has been rolling back. I will not go into the subject here to avoid a digression. But before concluding, I want to refer to a NY Times article by Michael Ignatieff which appeared on 5 January 2003. A defender of the American role in Iraq, Ignatieff had in this article some harsh words for the lack of enthusiasm within the United Nations for the manner in which America has pursued its war on Iraq. I quote: “The United Nations lay dozing like a dog before the fire, happy to ignore Saddam, until an American president seized it by the scruff of the neck and made it bark. Multilateral solutions to the world’s problems are all very well, but they have no teeth unless America bares its fangs…” [7] Pardon me for this quote out of the context, but I want to highlight the language of power that flows from the premise that the strong States do what they will and the weak suffer what they must and the United Nations must not stand in the way. This is not the view I subscribe to although I maintain that the United Nations has radically failed in establishing a reasonable balance between the force and law in international relations and also in subordinating the impulses and the power of carnage of its member States to principles of democracy, human rights and international accountability hyped in its charter. However, we can only hope that the current state of affairs does not represent the future of relations between the powerful and the powerless, in both domestic and international relations, and that the United Nations would be able to redeem itself from the compulsions under which it has so far remained an organization of States dedicated to values of power and coercion without accountability.

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