IMPUNITY BY ALL MEANS: RIGHTS AND THE DEAD-ENDS OF LAW

Impunity by all means: Rights and the dead-ends of law 73
IMPUNITY BY ALL MEANS: RIGHTS
AND THE DEAD-ENDS OF LAW
CHAPTER TWO
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74 Reduced to Ashes
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Impunity by all means: Rights and the dead-ends of law 75
PART ONE: THE SEARCH FOR TRUTH
The four fundamentals of the Indian democracy, embedded in its republican Constitution,
are: [1] The guarantees of inalienable human rights to all citizens; [2] A
democratic legislature; [3] An independent judiciary; and [4] The freedom of discourse.
On the strength of these constitutional features, India claims to be the largest
functional democracy in the world where wide-spread human rights abuses,
systematic persecution of estranged communities and suppression of political dissent
cannot occur. However, the experiences of the Sikhs in Punjab show that as a
demonised community targeted for abuse by the authorities, they had no protection
from the leaders of supposedly independent institutions, including the judiciary,
either in shielding their fundamental rights against imminent violations or in obtaining
acknowledgement and legal restitution of wrongs. Freedom of discourse
remained an empty promise when even the higher judiciary joined the chorus to
turn the page and obliterate the victims’ memory on the ground that a public discussion
and scrutiny focusing on past abuses and the role of institutions would undermine
the interests of peace and social order. This chapter will discuss these propositions
around the efforts of the Committee for Coordination on Disappearances in Punjab
(CCDP) to initiate a public discourse on human rights violations in Punjab through a
people’s commission, as well as the legal history of the matter of abductions leading to
disappearances and secret cremations carried out by the Punjab police, pending before
the National Human Rights Commission (NHRC) since December 1996.
Election Manifesto
On 10 December 1997, the CCDP held its first convention in Chandigarh and called
on the Punjab government to set up a “truth commission” to investigate all complaints
of human rights violations, as promised by the Akali Dal’s February 1997
election manifesto. The Akali Dal, which represented the issues of the Sikh political
discontent, had returned to power in the state nine years after the Central government
dismissed its government in October 1987. Members of the Akali Dal and
those associated with its programs and policies constituted the largest number of
victims of state atrocities as well as of the militant violence. The CCDP convention
also resolved to establish a people’s commission, comprising three retired high
court judges, to investigate the complaints of human rights violations if the newlyelected
government chose to renege on its electoral pledge. Justice Kuldip Singh,
former judge of the Supreme Court of India and a patron member of the CCDP, was
in charge of this initiative.
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76 Reduced to Ashes
Recent Examples of Truth Commissions
Worldover, the institution of truth commission, is recognized as an important innovation
for the restoration of the rule of law in societies traumatized by widespread
abuses of human rights by state forces and political violence originating from deeper
political maladies. The truth commissions by their uniquely transparent and participatory
methods of work, aim to help hostile sections of people in such societies
recover a common normative and empirical basis for knowledge, justice and good
governance. This innovative instrument of truth and justice has taken new forms
under varied experiments in divided societies across the world. Let us consider the
two recent examples:
In October 2000, Yugoslavia’s democratically elected president, Vojislav
Kostunica, announced the creation of a truth commission to investigate human rights
crimes and collective violence since the fall of the iron curtain. Kostunica explained
the need for the commission in the following words:
We must answer two questions: What really happened and how do we go on?
This is the only way to make the past clear to future generations and to explain
to them how their predecessors found the way out of the maze… In order to
make it happen, we have to revise our near and distant past. We have to face it as
a number of objective facts and myriad subjective observations and experiences
stemming from them. This is going to be a very difficult task in a society in
which nearly every family has its own tragic story… We have to bring together
these dispersed elements of our awareness and conscience, to organise ourselves,
and begin the process of general moral recovery. Without that recovery, any
other will prove impossible…This was the idea that led me to establish the truth
and reconciliation commission. However, it is a mere stone of goodwill thrown
into the waters of the present historic predicament. The notion and wish is that
the stone produces many concentric rings of activity to be carried out by many
associates and activists. The commission’s task is to band together all those who
see truth and reconciliation as the cornerstones of a future resurrected public
life. Whether this historic project will succeed or not depends on all of them and
all of us.1
On 26 May 2001, seven months after the establishment of the Yugoslavian commission,
the Peruvian government announced the establishment of a similar truth
commission to investigate human rights abuses committed in the country over the
last 20 years. The commission promised to scrutinize the actions of Peru’s last three
presidents and also examine the era of terrorism in which 30,000 people died and
4000 disappeared. An interim government under Alan Garcia announced the decision
following the dismissal of Alberto Fujimori in November 2000 on the ground
of his “moral unfitness”. On 9 September 2002, the commission’s chairman Salomon
Lerner especially flew to interview Fujimori in Tokyo, where he has taken shelter
1 “In Search of Truth and Responsibility: Towards a Democratic Future,” Vojislav Kostunica, 19 May
2001, —
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Impunity by all means: Rights and the dead-ends of law 77
2 The BBC News, Saturday, 26 May 2001, “Peru to Create Truth Commission” –
the BBC News, Monday,9 September 2002,
Charles Scanlon, “Peru Truth Inquiry tails Fujimori”, —

3 At Embassy of Peru in London, 15 February 2002, “The Task to Make Justice: Presentation by the
President of the Truth and Reconciliation Commission” –

4 Jonathan D. Tepperman, “Truth and Consequences”, Foreign Affairs, March, 2002 / April, 2002.
5 Volume I, Chapter I, Foreword by Chairperson, para 17 –
Tell all the Truth but tell it slant –
Success in Circuit lies
Too bright for our infirm Delight
The Truth’s superb surprise
As Lightning to the Children eased
With explanation kind
to escape accountability.2 Justice Salomon Lerner spoke to a select audience in
London on 15 February 2002 about another important task of understanding the
roots of political violence in Peru that confronted the commission: “The violence,
besides being an expression of historical bankruptcy, has created in our present and
planted in our future, an abundant and deep sense of unease. Once again, it is difficult
to think about consolidation of democracy in Peru, without having recognised
these wrongs and evils and without proposing a solution.”3
According to Jonathan D. Tepperman, an international lawyer from Canada and
an associate editor of the Foreign Affairs, 10 other commissions have been set up in
the period between the Yugoslavian and Peruvian initiatives and more than 21 truth
commissions have run their course since 1974.4
Paradigmatic Experiences: Argentina and Chile
The importance of truth commissions in endemically violent societies, as suggested
by these examples, seems to lie in the idea that they approach abuse of political
power, violence and victim-hood in their larger historical and normative contexts
and seek accountability, reparation and restoration of human rights in a participatory
process with greater emphasis on repentance and healing than on prosecution
and punishment. The approach follows the premise that those who wield power and
others who suffer it can be welded to a shared perspective on the responsibilities
and limitations of the relationship and can, on that basis, reconcile with a common
position of truth, reparation of wrongs and the commitment to prevent future atrocities.
Clearly, the objective is as hard to achieve as it is noble in its basic conception.
South Africa’s Truth and Reconciliation Commission (TRC), which was instituted
from 1996 to 1998, is by far the most famous example of this approach to justice.
In the introduction to the final report of the TRC, Archbishop Emeritus Desmond
Tutu, the commission’s chairperson, wrote about a Dutch visitor to the post-apartheid
South Africa who observed that the “Truth and Reconciliation Commission
must fail. Its task is simply too demanding”. Yet, she argued, “even as it fails, it has
already succeeded beyond any rational expectations.” She quoted Emily Dickinson,
“The truth must dazzle gradually… or all the world would be blind”.5
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78 Reduced to Ashes
The Truth must dazzle gradually
Or every man be blind.
Emily Dickinson’s poetry can be read at the following site: —

6 Edward Schumacher, “Argentina and Democracy”, Foreign Affairs, Summer 1984,
7 Decree No. 187/83, promulgated Dec. 15, 1983 — Comission Nacional Sobre la Desaparicion de
Personas, quoted in Carlos S. Nino, “The Duty to Punish Past Abuses of Human Rights Put into
Context; the case of Argentina”, Yale Law Journal, 100, pp. 2537 – 2615 June, 1991.
8 Commission Nacional Sobre la Desaparicion de Personas, Nunca Mas – National Commission on the
Disappearance of Persons, Never Again —, Univeritaria de Buenos Aires, 4th edition, 1984, pp. 235-6,
479;Tom J. Farer, “Swallowing Injustice to Build Community: Latin America After the Era of State
Terror”, A lecture delivered at the Institute of International Studies of the University of California,
Berkeley, on 20 April 2000 –
This weighty point is especially supported by the experiences of truth commissions
in Latin American countries like Argentina, Chile, El Salvador and Guatemala.
We shall briefly examine the Argentinean and Chilean experiences that have
some lessons for the issues and the challenges we encounter in Punjab.
The first serious attempt to remedy the past abuses of power through a truth
commission was made in Argentina when Raul Alfonsin, a charismatic democrat,
came into power through elections in 1983, ending the “Dirty War” initiated by the
junta in 1976. Alfonsin dramatically broke from the Latin American tradition of
pacifying past military rulers and ordered the court-martial of nine junta leaders,
who ruled between 1976 and 1982, on charges of spreading “terror, pain and death
throughout Argentinean society.” Included among the nine were ex-presidents
Videla, Viola and Galtieri.6
The National Commission on Disappeared, established by Alfonsin’s government7
and chaired by the famous writer, physicist and humanist Ernesto Sabato,
did the first systematic study of the philosophy and working of “counter-insurgency”
in modern times. Its report Nunca Mas (Never Again), based on extensive
testimony of victim families revealed the counter-insurgency thinking and strategy,
pithily explained by General Saint Jean in the following words: “First we will kill
all the subversives. Then we will kill their collaborators, then their sympathizers,
then those who remain indifferent and finally the indecisive.” This counter-insurgency
thinking justified unconventional and ruthless ways of dealing with clandestine
rebel organizations and considered the use of torture essential for the knowledge
of underground networks. If a captured sympathizer of the rebels could not be
intimidated or induced to become a stooge, he had to be killed. This framework also
viewed human rights organizations as subversive in nature because they “contributed
to the destruction of the pristine power and the moral supremacy of the nationstate”.
The report revealed that the military government systematically tortured, murdered
and disappeared almost 9,000 Argentinian citizens. Many were disappeared
by the unique method of dropping their bodies into the ocean from airplanes so that
their bodies would never be found.8 Following the publication of the report, the
government initiated prosecutions against many senior navy, air force and military
officials. The government tried to permanently establish civilian authority over the
military and retired more than half of the generals and admirals. It slashed military
outlays radically and removed the military control over Fabricaciones Militares, a
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Impunity by all means: Rights and the dead-ends of law 79
9 Edward Schumacher, Argentina and Democracy, Op. Cit.
10 Carlos Nino, “Comment: The Human Rights Policy of the Argentine Constitutional Government: A
Reply,” 11 Yale J. Int.L L, 1985, Ley de Punto Final, Law No. 23492, 24 December 1986.
11 Carlos Nino, “The Duty to Punish Past Abuses of Human Rights put into Context: The Case of
Argentina,” 100 Yale L. J. 618, 620, 1991.
12 Ley de Obediencia Debida, Law No. 23521, 4 June 1987.
13 Edward C. Snyder, “The Dirty Legal War: Human Rights and the Rule of Law in Chile 1973-1995,”
Tulsa Journal of Comparative and International Law, Spring, 1995, p. 253.
14 The Washington Post, 20 September 2000, Vernon Loeb, “CIA Had Covert Fie to Letelier Plotter”.
military industrial complex that produced everything from ploughshares to military
hardware.9
In the beginning all seemed to be moving well towards accountability. Slowly,
the pressure started building up. First, Alfonsin brought the legislation aiming to
protect middle rank officers who supposedly committed crimes under orders but
lacked decision-making capacity. The law, however, excluded from protection those
accused of “abhorrent or atrocious” acts. The law did not satisfy the military and
the government was forced to bring in the so-called “law of full-stop”.10 The law
established a 60-day statute of limitation for new indictments. As the government
appeared to buckle under pressure, the military became bolder and more brazen. A
group of previously indicted officers rebelled and announced their decision to violently
resist enforcement of detention orders. The civilian population of Argentina
sided with the government. Millions swamped the streets of Buenos Aires in President
Alfonsin’s support and the military rebellion was quelled.11
Despite this momentary success, other indicted officers began to defy the judicial
process. The government pacified the military by bringing in new legislation
called the “law of due obedience” to protect all, except the very senior officials,
from legal action.12 The law pacified the military, but the bold experiment in accountability,
initiated by this charismatic Argentinean democrat in 1983, failed.
The same process has been repeated, with rich experimental variations, in Chile
after the December 1989 electoral success of Patricio Alywin Azocar of the Christian
Democrats Party that brought an end to the 17-year-long rule of General Augusto
Pinochet. Alywin was aware of the failures of the accountability process in Argentina,
but still established the National Commission for Truth and Reconciliation in
1990 to confront the legacy of human rights violations that followed the 1973 military
coup against Allende’s elected regime.13
Pinochet had sustained his regime by methods that provided inspiration to brutal
regimes across the world, including the Indian Punjab. First, the Directorate of
National Intelligence (DINA) established in June 1974 under Manuel Contreras,
led the counter-insurgency operations. The DINA specialized in liquidating the “enemies
of the state” and potential adversaries of “national security”.14 Victims were
seized without arrest warrants, often in broad daylight and in front of witnesses, as
in Punjab, and held incommunicado, systematically tortured, killed and disappeared.
In August 1977, Pinochet had to disband the DINA under pressure from the new
American administration under President Jimmy Carter, but he created another outfit
called the National Center of Information (CNI). The new organization specialized
in staging elaborate “shoot-outs” with alleged terrorists, precursors to the Punjab
“encounters”. The CNI was later recognized as a branch of the armed forces.
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80 Reduced to Ashes
15 The Washington Post, 1 July 1999, Karen De Young and Vernon Loeb, “Augusto Pinochet Report:
Documents Show U. S. Knew of Pinochet Crackdown” –
140.html; Edward C. Snyder, Op. Cit, 253.
16 Human Rights Watch Report, October 1999, Vol. 11, No. 1(B), “Chile: When Tyrants Tremble: The
Pinochet Case” –
17 Judgment – In Re Pinochet, House of Lords, Oral judgment on 17 December 1998: Reasons on 15
January 1999 –
Ruth Wedgwood, “Augusto Pinochet & Inernational Law”, (2000) 46 McGill Law Journal
241.
18 The Miami Herald, 3 March, 2000, Kevin G. Hall, “Pinochet released to return to Chile” –

According to the National Commission for Truth and Reconciliation, which released
its reports in 1991 and 1996, a total of 2,095 extra-judicial executions and
deaths under torture took place during the military regime, and 1,102 people disappeared
at the hands of government forces and are presumed dead.15
Already in April 1978, Pinochet had decreed an amnesty law that protected
people from prosecution of all political crimes committed during the state of siege
from September 1973 to March 1998. In October 1980, Pinochet named himself
the president of Chile for an eight year term and reserved for the military nine of 48
seats in the National Senate. He also secured military presence in the judiciary and
constituted a national security council, with half the votes to the military personnel,
to influence the governmental decisions. In 1988, Pinochet lost a plebiscite for the
extension of his rule and the presidential elections in December 1989 returned the
Center-Left coalition of Parties for Democracy under Patricio Alywin Azocar to
power. Pinochet remained the chief of the armed forces till March 1998 when he
surrendered the command to General Ricardo Izurieta after taking his position in
the Senate as its life-member with diplomatic immunity for his travels abroad and
constitutional immunity from arrest or criminal process at home.16
On 16 October 1998, Pinochet was detained in London, while he was there for
medical treatment, at the request of Spanish magistrate Baltasar Garzon for the
murder or “disappearance” of seven Spanish citizens in Chile. The next 16 months
of high legal drama, marked by two path breaking House of Lords decisions on the
principles of sovereign immunity, culminated in March 2000 with the British home
secretary intervening in the process, in a quasi-judicial role, to return the 84-yearold
former dictator to Chile on “medical grounds”. Although many were disappointed
by the outcome, the episode established the principle that former heads of
state responsible for heinous human rights abuses are not immune to prosecution
within the universal jurisdiction of human rights.17 In the course of Pinochet’s 16-
month long detention in Britain, three other countries – Belgium, France and Switzerland
– asked for his extradition on the ground that their citizens had suffered
torture, disappearance and arbitrary execution under his regime. But the British
home secretary turned down their requests. Pinochet’s return to Chile received a
mixed reaction and it seemed unclear whether he would be prosecuted for his crimes
within the country. But he had been branded an outlaw before the international
community and this was an achievement for the human rights movement.18 Also,
Pinochet’s return to Chile, amidst a grand spectacle of welcome staged by the armed
forces, resurrected the discourse on the obligations of the state to investigate,
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Impunity by all means: Rights and the dead-ends of law 81
19 Jinn Magazine, 30 March 2000, Roger Burbach, “Pinochet’s Trial And Tribulations In Chile — Chileans
Eager To Take Care Of Pinochet And Other Domestic Problems” –

20 Amnesty International Report 2001, Chile, —

22 Human Rights and Politics of Agreements, An Americas Watch Report, 41, July 1991, p. 32; Report of
the Chilean National Commission on Truth and Reconciliation, Trans. Philip Berryman, 1993; Edward
C. Snyder, “The Dirty Legal War: Human Rights and the Rule of Law in Chile 1973-1995”, Tulsa
Journal of Comparative and International Law, Spring 1995.
23 International Commission of Jurists and Center for the Independence of Judges and Lawyers, Chile: A
Time of Reckoning, 51 (1993) p. 219.
acknowledge and rectify past human abuses.
New Chilean president Ricardo Lagos promised that the judicial process would
take its course. Even the judiciary seemed to be stirring when it ruled that the old
amnesty legislation would not apply to stymie investigation of “enforced disappearances”.
19 The Chilean council for defence of the state, representing the position
of the state, joined a group of seven human rights lawyers in Santiago to request
the appeals court to lift parliamentary immunity for prosecution, which Pinochet
enjoyed for life. In June 2000, the court decided to waive the immunity by 13 votes
to 9. The court also ordered Pinochet’s house arrest for the kidnapping and murder
of 75 victims of the “Caravan of Death”. But the Supreme Court turned down the
appeal on the ground that the court had not completed the formality of interrogating
Pinochet and that it could not do so without a proper medical certificate that he was
physically and mentally fit to take the strain.20
In spite of these setbacks and amidst controversies, the process of truth and
reconciliation in Chile continued. In June 2000, members of Mesa de Dialogo, a
conflict resolution group dedicated to resolving “disappearances” issued a declaration
asking for a special legislative initiative to obtain authoritative information.
The group called for statutory protection of anonymity to those who came forward
with information. The Congress passed the proposal which became law in July
2002.21
Evidently, these developments, resulting from the publication of the truth
commission’s report in 1991, do not amount to a clear and enduring triumph of
truth, accountability and end of impunity in Chile. However, they constitute a significant
progress for the human rights movement since 1991 when Pinochet had
reacted to the findings of the truth commission in the following words: “The army
of Chile solemnly declares that it will not accept being placed as if on trial before
the citizenry for having saved the freedom and sovereignty of the homeland at the
insistence of the civilian population.”22 The commission’s report, which criticized
the courts for abdicating their independence and for failing to safeguard fundamental
rights of all citizens, had also provoked a strong reaction from the Supreme
Court. The Supreme Court actually issued a public statement holding the government
and the truth commission responsible for creating a climate of animosity and
contempt for the judiciary.23 The events in the wake of Pinochet’s detention in the
UK and the two judgments by the House of Lords on 25 November 1998 and 17
December 1998 have certainly counteracted their political hubris and claims of
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82 Reduced to Ashes
inscrutability. They also show that justice and truth, as goals, move on the power of
patient persistence.

Popular Co-Agency
We hoped that the new Akali government in Punjab would learn from these global
experiences and use the instrumentality of a truth commission, as promised in its
election manifesto, to address the issues of past atrocities and also identify the root
causes of horrid aberrations from the rule of law characterizing the governance in
the state since 1984.
The importance of initiating a public discourse on past abuses, accountability
and the culture of impunity becomes evident when we pay attention to the scale and
contours of state violence in Punjab from 1984 to 1994. As we know, an extraordinarily
large number of people were excluded from the protection of the law on the
basis of their collective identity, and an equally large number of people, in an antithetical
stance in relation to that identity, participated in the perpetration of violence,
directly, in auxiliary roles and as silent supporters. In November 1984, the
Sikhs in Delhi were not whisked away to secret locations to be killed by specialized
gangs of executioners. They were murdered, maimed, burnt and impaled openly on
the streets by large mobs with implements and appliances from their daily working
lives: knives, sticks, clubs, stones, kerosene and other such devices. Murderous
mobs were, no doubt, mobilized, sometimes transported from nearby villages, and
instigated and led by politicians with clout who promised and ensured protection.
But there was nothing anonymous, secretive or remote about the carnage. It was
done openly by hundreds of thousands of people with many playing supplementary
roles and many more returning as spectators from the sites of slaughter, with the
blood and flesh of victims on their faces and clothes.
Also, there was nothing clandestine about the state terrorism in Punjab. Security
forces picked up suspects very openly, kept them under interrogation at local police
stations and other places of detention in accessible localities and then killed them in
so-called “encounters” which everyone in the area knew to be bogus. Yet, given the
communal cleavages of the situation, the security forces operated under approving
eyes and with the complicity of large sections of the population. In our view, attempts
to find remedies and restitution for these situations of organized violence
and state atrocities cannot be effectual unless they account for and address the dynamics
of “popular” co-agency that allowed the abuses to happen and then escape
accountability through a compact of official denial and social silence.
Several scholars have examined the subaltern and “popular” character of the
state’s genocidal projects in other societies, especially the Nazi period of German
history, to understand the historical and political factors that make them manageable.
Mahmood Mamdani’s recent book about the genocide in Rwanda, involving
the Hutu and Tutsi populations, should be particularly helpful in understanding the
communal approval for what happened in Punjab. The book deserves attention because
it ventures into the silent spheres of discourse on genocide by examining the
perspectives and resonances that make it happen. Particularly relevant for comprehending
the Punjabi situation is the approach taken by this outstanding Ugandan
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Impunity by all means: Rights and the dead-ends of law 83
24 Mahmood Mandani, When Victims Become Killers: Colonialism, Nativism and the Genocide in
Rwanda, Princeton University Press, 2002.
25 Michael Lobban, White Man’s Justice: South African Political Trials in the Black Consciousness Era,
Oxford University Press, NY, 1996, p. 184.
26 Quoted in Kumar, Sieberer, The Sikh Struggle, Op. Cit, pp. 288-289
intellectual in examining the histories of “identity formation” in colonial Africa and
his analysis about the failures of nationalist revolutions in endowing them with a
basis of citizenship that can withstand genocidal impulses.24
Toleration and approval of violence against those who live in the same physical
space but do not belong to the inner landscape of human commune is not new in
history. In Mark Twain’s Adventures of Huckleberry Finn, Huck narrates to Aunt
Sally his lucky escape from an explosion in his steamboat. Aunt Sally is startled
enough to ask: “Good gracious! Anybody hurt?” “No’m,” comes the answer: “Killed
a nigger”. Aunt Sally, feeling relieved, says: “Well, it’s lucky, because sometimes
people do get hurt.” Aunt Sally’s contented response captures the heart of darkness
in the American South, 20 years before the Civil War, as no scholarly work of
history can. “Niggers” were not people and their suffering, their rights and their
violations did not filter down to the White consciousness as a matter of concern.25
We know how the ‘demonization’ of Jews as a “deicidal race” and as the progeny
of Judas Iscariot succeeded in insulating the world from reports on the Holocaust at
a stage when it could have been stopped. Such is the one-sidedness of history as it
unfolds in a world that has no regard for a shared perspective on truth.
PART TWO: LEGISLATIVE APPARATUS OF
COUNTER-INSURGENCY
Draconian Laws
Protagonists of the Indian establishment habitually repeat the claim that “excesses”,
meaning illegal detention, custodial torture, arbitrary executions and enforced disappearances,
had become inevitable because terrorism paralyzed the courts of law,
which failed to convict the accused brought before them for trial. Merits of this
claim require a serious scrutiny with reference to the extraordinary powers the security
forces in Punjab enjoyed within the legislative apparatus, created by the Parliament
and upheld by the Supreme Court to deal with the insurgency in the state.
In March 1988, the Parliament passed the 59th Amendment of the Constitution
enabling the Central government to extend President’s rule in the state beyond one
year, impose emergency on the ground of “internal disturbance”, and suspend Article
21 of the Constitution which guarantees that “no person shall be deprived of
life and liberty except according to the procedure established by law”.26
The Union government dragooned this constitutional amendment through Parliament,
despite all of the special legislation already at its disposal. The following
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84 Reduced to Ashes
27 The National Security Act, 1980, Statement of Objects and Reasons to Amending Act 24 of 1984.
28 I. S. Jaijee, Politics of Genocide, Chandigarh, 1995, p. 143
29 The Terrorist and Disruptive Activities (Prevention) Act, 1987, Statement of objects and reasons.
30 TADA 1. [2 a & b]
are some of the black laws then applicable in Punjab, whose draconian provisions
were sustained by the Supreme Court’s power of judicial review.
1. The National Security Act, 1980, which aimed to effectively deal with “the antisocial
and anti-national elements” was amended by the Amending Act 24 of
1984 specifically with reference to “the extremist and terrorist elements in the
disturbed areas of Punjab and Chandigarh.”27 This Act provided for detention
without charge or trial for one year in all parts of India, and two years in Punjab.
2. The Armed forces (Punjab and Chandigarh) Special Powers Act empowered
the security forces to enter and search any premises, and to arrest any person
without a warrant. It also allowed the security forces to destroy any place on the
suspicion of being a “terrorist hideout” and to shoot to kill a suspected terrorist
with immunity from prosecution.28
3. Finally, there were the Terrorist-Affected Areas (Special Courts) Act, 1984, and
Terrorist and the Disruptive Activities (Prevention) Act enacted in May 1985 in
Punjab with its lifetime restricted to a period of two years. At the end of this
period, the Union government realized, as the statement of objects and reasons
in the preamble to the Act explain, that the police required the special powers of
the Act “on account of various factors, what were stray incidents in the beginning
have now become a continuing menace specially in states like Punjab. On
the basis of experience, it was felt that in order to combat and cope with terrorist
and disruptive activities effectively, it is not only necessary to continue the said
law but also to strengthen it further.” With these considerations, the President of
India promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance
in May 1987. This ordinance was replaced with the Terrorist and Disruptive
Activities (Prevention) Act (TADA), 1987, after both the Houses of Parliament
passed it as law in September 1987. The lifetime of the Act was again
prescribed as two years, but on the due dates of expiry in 1989, 1991 and 1993,
TADA was extended for further periods of two years, the last time through the
Amending Act 43 of 1993.29
Examination of Provisions of TADA
To understand the depth and reach of the draconian mandate the security forces in
Punjab received from the Parliament, upheld by the Supreme Court, we shall examine
the provisions of TADA at some length.
The following were the salient features of the Act, extending to the entirety of
India and also applied to Indian citizens outside the country.30 The Act was permitted
to lapse in May 1995, but the cases initiated prior to 1995 continue to hold legal
validity.
The Act defined a terrorist as: (1) “Whoever with intent to overawe the government...
or to strike terror in the people... or to adversely affect the harmony amongst
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Impunity by all means: Rights and the dead-ends of law 85
31 TADA 3. [1], [3], [4]
32 TADA (2) [a] I, II, & III
33 TADA, (4) [2] I-II, [3] A-B
34 TADA (3) [2] I-II, [3], [4]
35 TADA (4)
36 TADA, 5 & 6
37 TADA, (9) 1-4, (11) 1-7
different sections of the people does any act... by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or other lethal weapons
or poisons or noxious gases or other chemicals or by any other substances...in
such a manner as to cause, or as is likely to cause death of, or injuries to, any
person... or destruction of property or disruption of any supplies of services... or
detains any person and threatens to kill or injure such person in order to compel the
government or any other person to do or abstain from doing an act, commits a
terrorist act; (2) Whoever conspires... or advocates, abets, advises or incites or...
facilitates the commission of a terrorist act or any act preparatory to a terrorist act;
(3) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist.
31
Abetment of a terrorist act meant: “(1) Communication or association with any
person... who is engaged in assisting... terrorists or disruptionists; (2) the passing on
or publication of ... any information likely to assist the terrorists or disruptionists...
and publication of or distribution of any document or matter obtained from them;
(3) rendering of any assistance [to them] whether financial or otherwise.’32
Disruptive activity was defined as any action taken, whether by act or by speech
or through any other media or in any other manner... ‘(1) Which questions, disrupts
or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial
integrity of India; or (2) Which is intended to bring about or supports any claim,
whether directly or indirectly, for the secession of any part of India... from the
Union; (3) Which advocates, advises, suggests or incites or predicts, prophesies or
pronounces or otherwise expresses in such a manner as to incite, advise, suggest or
prompt the killing or the destruction of any person bound by oath under the Constitution
to uphold the sovereignty and integrity of India.33
Punishments for terrorist acts were: (1) Death or imprisonment for the life, also
liable to fine if an act resulted in the death of any person; (2) In any other case, the
act was punishable with imprisonment for a term not less than five years and extending
to imprisonment for life, also liable to fine.34
Disruptive activities were punishable with imprisonment for a term not less than
five years and extending for life, also liable to fine.35
Possession of unauthorised arms, ammunition or explosives and helping terrorists
or disruptionists to possess them was punishable with imprisonment for a term
not less than five years, extending to imprisonment for life, also liable to fine.36
Every offence punishable under the Act was to be tried only in the designated
court constituted by the Central or a state government. The government also appointed
the presiding judge and additional judges with the concurrence of the chief
justice of the high court. These judges continued in their offices even after attaining
the age of superannuation under the rules.37
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86 Reduced to Ashes
38 TADA 11 [2] A-C
39 TADA, (14) 1, 5
40 TADA, [16] 1-3, [19] 1-3
41 TADA, [8] 1-3, [22] 17 of TADA Rules, 1987
42 TADA, 22
43 TADA, [20] 7
Jurisdiction, procedure and powers of designated courts:
(1) The Central government could with the concurrence of the Chief Justice of India
transfer any case pending before a designated court in a state to any other
designated court within that state or in any other state if in its opinion such a
transfer was necessary for the requirements of a speedy trial, or safety of the
witnesses, the prosecutor and the judge, or the interests of justice.38
(2) A designated court on receiving a complaint or a police report could take cognizance
of any offence, without the accused being committed to it for trial. It may
also proceed with the trial in the absence of the accused or his pleader and
record the evidence of any witness.39
(3) All proceedings before a designated court could at the discretion of the court be
conducted in camera. The designated court could take necessary measures to
keep the identity and addresses of witnesses secret. It could also decide the
place where to hold the proceedings of the trial and suppress the names and
addresses of the witnesses from its orders, judgments or in any records of the
case. Further, the court could issue directions that the identity and addresses of
witnesses would not be disclosed and the proceedings of the court would not be
published in any manner. An appeal against any judgment, sentence or order of
a designated court could only be addressed to the Supreme Court within a period
of 30 days from the date of the order.40
(4) When a person was accused of an offence under the Act, the designated court
could order that all his properties be attached during the period of his trial. If the
trial ended in conviction, the attached properties were to be forfeited to the
government free from all encumbrances. If the court was satisfied on receiving
a report from a police officer or an officer of the Central government specially
appointed to arrest, investigate and prosecute any person under the Act, that any
person who committed an offence under the Act was absconding or was concealing
himself from apprehension, it could publish a written proclamation requiring
him to appear at a specified place and at a specified time not more than
30 days from the date of publication of such a proclamation. At the non-compliance
of the order, the person was to be declared a proclaimed offender.41
Arrest, investigation and evidence:
(1) When a person had been declared a proclaimed offender, the evidence regarding
his identification by witnesses from his photograph had the same value as
the evidence of a test identification parade;42
(2) No person accused under the Act could avail the remedy of anticipatory bail
under Section 438 of the Code of Criminal Procedure, (CrPC),1973;43
(3) A person arrested under TADA could be produced before any judicial magistrate,
executive magistrate or special executive magistrate, under Section 167 of
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Impunity by all means: Rights and the dead-ends of law 87
44 TADA, [20] 4
45 TADA, [20] 4-b
46 TADA, [20] 8 a & b
47 TADA, [15] 1-2, [21] 1a-d
48 TADA, [20]3
49 TADA, [26]
the CrPC, who could then authorize, irrespective of his jurisdiction, the detention
of the accused for the purpose of investigation under police custody for a
maximum period of sixty days;44
(4) A person arrested for any offence under the Act could be detained without bail
for the maximum period of one year to enable the prosecution to complete investigations
against him;45
(5) Even at the expiry of this period, the accused undertrial could not claim bail
unless the court on reasonable grounds was satisfied that he had neither committed
any offence under the Act nor was likely to commit any while on bail;46
(6) Confessions made by an accused, co-accused, abettor or conspirator before a
police officer of the rank of superintendent of police, either in writing or recorded
in any mechanical device, was admissible as evidence at trial. If the
prosecution established that arms or explosives were recovered from the possession
of the accused, or that his fingerprints were found at the site of the
offence, by the evidence of an expert, or that a co-accused had confessed the
involvement of the accused, or that the accused had confessed his offence to
any person, the designated court had to presume, unless the contrary was proved,
that the accused had committed the offence;47
(7) The recording of confessions and statements, under Section 164 of the Code of
Criminal Procedure 1973, could also be made by metropolitan magistrates, judicial
magistrates, executive magistrates and special executive magistrates,
whether or not they had jurisdiction in the case, at the instance of an officer
investigating a case under TADA;48
(8) No government and its officers could be taken to any court in any form for any
action which they had in good faith done or purported to have done in pursuance
of the Act.49