January 13, 1999
NHRC Order

 

 

Main Order

BEFORE THE NATIONAL HUMAN RIGHTS COMMISSION
NEW DELHI
Case No. 1/97/NHRC
(Arising out of the Order dt. 12th December, 1996
of the Hon'ble Supreme Court of India
in Writ Petition 447/1995 and 497 of 1995)

CORAM: 

ORDER ON THE SCOPE OF INQUIRY

We are called upon to examine the true scope of inquiry which the National Human Rights Commission is required to undertake under the remit of the Supreme Court's order dated 12th December, 1996 in Writ Petition (Cr.) No. 497/95 and 447/95. The petitioners contend that the Commission is required to inquire into all incidents of what are referred to as "extra-judicial eliminations" or "involuntary disappearances", "fake encounters", "abductions and killings", etc. alleged the Punjab Police during the decade of 1984-1994.

The contention of the Union and the State of Punjab on the other hand is that the inquiry is restricted only to 2097 cases of cremation of the bodies - 585 fully identified, 274 partially identified and 1238 unidentified - in the Police Districts of Amritsar, Tarn Taran and Majitha.

As the controversy centers around the correct understanding of the order of remit of Supreme Court, dated 12.12.1996, the same is extracted below: -

" O R D E R "

Two issues were raised before this court in Mrs. Paramjit Kaur Vs. State of Punjab and Ors. in Writ Petition (Crl.) No. 497/95 and the connected Writ Petition (Crl.) No. 447/95. The first issue concerns the abduction of Mr. J.S. Khalra, General Secretary, Human Rights Wing of Shiromani Akali Dal. This Court after monitoring has passed final order so far as issue regarding Mr. Khalra is concerned. The second issue raised in the Writ Petition related to the Press Note dated January 16, 1995 issued by the Human Rights Wing of the Shiromani Akali Dal under the signatures of Khalra and J.S. Dhillon under the caption "DISAPPEARED", "CREMATION GROUNDS". The Press Note stated that large number of persons were cremated by labeling them as unidentified. This Court dealt with the second issue as under:

"The second issue highlighted in this petition is equally important. This Court cannot close its eyes to the contents of the Press Note dated January 16, 1995 stated to be investigated by Khalra and Dhillon. In case it is found that the facts stated in the Press Note are correct - even partially - it would be a gory-tale of human rights violations. It is horrifying to visualize the dead bodies of large number of persons - allegedly thousands - could be cremated by the police unceremoniously with a label "unidentified". Our faith in democracy and rule of law assures us that nothing of the type can ever happen in this country but the allegations in the Press Note - horrendous as they are - need thorough investigation. We, therefore, direct the Director, Central Bureau of Investigation to appoint a high-powered team to investigate into the facts contained in the Press Note dated January 16, 1995. (Underlining is ours). We direct all the concerned authorities of the State of Punjab, including the Director General of Police, Punjab to render all assistance to the CBI in the investigation. All the authorities of the Punjab Government shall render all help and assistance to the CBI team as and when asked by any member of the said team. We give liberty to the CBI to seek any further directions from this Court from time to time as may be necessary during the investigation".

The CBI has completed its enquiry as directed by us. The 5th and final report was filed in this Court on December 9, 1996. The report is self-explanatory and speaks for itself. The Registry shall send a copy of the report to the National Human Rights Commission (the Commission) under a sealed cover. The report indicates that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. (Underlining is ours). Needless to say that the report discloses flagrant violation of human rights on a mass scale. Without going into the matter any further, we leave the whole matter to be dealt with by the Commission."

The Court on December 11, 1996 passed the following order:

"Pursuant to this Court's order dated November 15, 1995, the CBI has placed on record the 5th and final report dated December 9, 1996 regarding the cremation by the police of lawaris dead bodies in various Districts of Punjab. Mr. M.L. Sharma, Joint Director, CBI is personally present in the Court. We agree with the suggestion of Mr. Sharma that the contents of the report be kept secret, as at present, because further investigation has to be undertaken by the CBI. Mr. Sharma has suggested that since large number of cases may have to be registered, the CBI may be permitted to undertake investigation of 10 - 15 cases and the remaining cases be investigated by the Punjab police. We appreciate the suggestion but since the CBI has done the initial investigation in this matter and has placed detailed reports before this Court while appreciating the work of the CBI, we are of the view that as at present, the CBI should undertake the investigation of all the cases which are to be registered as a result of the final report. We, therefore, direct the CBI to take further action into the matter and register the cases, where necessary, hold investigations and proceed in accordance with law on the basis of the material collected during investigation.

We, however, give liberty to the CBI to seek further directions, if necessary, from this Court in line with the suggestion made by Mr. Sharma or for any other purpose. The CBI shall, after every three months, place a status report regarding the investigation in this court".

While the CBI is investigating the matter, we are of the view that the remaining issues involved in this case be left for the determination of the Commission, which is the appropriate body for this purpose.

Learned Counsel in the two writ petitions have vehemently contended that all the 585 bodies which have been identified, their heirs/dependants are entitled to compensation. Our attention has been invited to various provisions specially Sections 12 and 18 of the Protection of Human Rights Act, 1993.

We request the Commission through its Chairman to have the matter examined in accordance with law and determine all the issues which are raised before the Commission by the Learned Counsel for the parties. Copies of the order dated November 15, 1995 and all subsequent orders passed by this Court alongwith the copies of all the CBI reports in sealed covers be sent to the Commission by the Registry.

Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable. If any approval or further assistance from this Court is necessary, the same may be sought by the Commission. The necessary papers be sent to the Commission within one week in a separate sealed cover".

There were two writ petitions before the Supreme Court, the first one being WP 447/95 brought by the "Committee for Information and Initiative on Punjab" in which petitioner sought a direction for initiation of punitive action against the officers said to be responsible for the illegal cremations; and payment of compensation to the next of kin of all the persons killed and cremated by the Punjab Police. Some statements in paragraphs 4 and 5 (xviii) of the petition refer to extra-judicial executions said to have occurred all over the State of Punjab by the Punjab Police and in ground (d) to cremations in various districts/cities of Punjab. These allegations in paragraph 4 and 5 (xviii) are general in nature and are not accompanied by material particulars and do not admit of specific traversal except by way of general denials.

However, there were suggestions in the course of the writ petition that the cremation of the bodies at Durgyana Mandir Crematorium and Patti Municipal Committee cremation ground which were done by the police themselves did indicate earlier extra judicial killings. The estimate of the number of these bodies was given at about 2000. Particulars of the same are furnished in paragraphs 2 and 5(i) of the petition. The affidavits filed in support of the writ petition also relate to the cremations at the said two crematoria. The list of dates furnished also referred to the cremations that are alleged to have place in these two cremation grounds. What emerges from an examination of the pleadings taken as a whole in the writ petition is that the main grievance brought before the Court for examination relates to extra-judicial killings/disappearances that culminated in the bodies of those killed being cremated at Durgyana and Patti Municipal Cremation Grounds.

The connected Writ Petition 497/95 was brought by Smt. Paramjit Kaur, the wife of Shri Jaswant Singh Khalra, for the issue of a writ of habeas corpus to produce Shri Jaswant Singh Khalra before the Court. During the pendency of this writ petition, attention of the Supreme Court was drawn to the Press Note dated 16.1.1995 under the title 'DISAPPEARED'  'CREMATION GROUNDS' based on the investigation by Shri Khalra and Shri Dhillon. The Press Note states that a large number of human bodies were cremated in the District of Amritsar as "unidentified", 700 bodies at Tarn Taran Municipal Crematorium, 400 at Patti Municipal Cremation Ground and 2000 at Durgyana Mandir Crematorium. The Press Note only referred to the alleged cremations during the relevant period in the abovesaid three crematoria. The Press Note did not speak of any illegal executions or similar cremations in any other District of Punjab.

On a consideration of this Press Note, the Supreme Court by its order dated 15.11.1995 directed the Central Bureau of Investigation to appoint a high-powered team to investigate into the averments contained in the Press Note dated 16.1.1995. The scope of the inquiry was restricted to the allegations contained in the Press Note which related only to the cremations at the three crematoria of Amritsar District. An examination of the averments in Writ Petition 447/95 indicates that they were confined to the alleged cremations at the Durgyana Mandir and Patti Municipal Crematoria. Cremations in these two crematoria are also referred to in the Press Note.

It is also clear that the scope of the inquiry was limited by the Supreme Court to the facts stated in the Press Note which, in fact, referred to the alleged illegal disposal of the bodies at the three crematoria in the District of Amritsar. Petitioners did not seek any modification of the Supreme Court's order of 15.11.1995 which, so far as the CBI was concerned, limited the inquiry to the averments in the Press Note dated 16.1.1995. So far as the scope of the CBI inquiry is concerned, all the parties appear to have accepted that the inquiry was and should be limited to cremations in Amritsar District. By analogy and parity of reasoning, it requires to be understood that the scope of the remit to the Commission was similar though the purpose is different.

In carrying out the orders of the Supreme Court, the CBI published the following Press Note inviting information from the general public:

"Appeal to Public "

Under the orders of the Hon'ble Supreme Court of India, the Central Bureau of Investigation (CBI) is making an enquiry into the matter pertaining to disposal of unidentified/unclaimed dead bodies in three Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 to December, 1994. Through this notice, it is informed to the public at large that if any persons/authority/Govt. office has any information/material which may be of any assistance to the CBI in the enquiry, the same may be placed before the CBI in their camp office at Sainik Rest House, Court Road, Amritsar."

This indicates that the CBI understood the Supreme Court's order dated 15.11.1995 as requiring it to inquire only into the disposal by cremation of unidentified/unclaimed dead bodies in three Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 and December, 1994. If, as contended by the learned counsel for the petitioners, the scope of the inquiry was not limited to the above said Police Districts alone it would be reasonable to expect that petitioner would have moved the Supreme Court for a direction to the CBI appropriately to enlarge the scope of inquiry to the entire state of Punjab and not to limit it to the Police Districts of Amritsar, Majitha and Taran Taran, as sought to be done by the Press release. The absence of any such endeavour is an indication as to how all concerned have understood the scope of the inquiry and the subject matter. In pursuance of the inquiry conducted by them, the CBI was submitting its reports, from time to time. At no stage were any objections raised by the petitioners against limiting of the inquiry to the three police districts of Amritsar alone. The fifth and final report was filed in the Court on the 9th December, 1996, copy of which has been sent to the Commission under the orders of the Supreme Court.

The final report indicates that 585 bodies were fully identified, 247 bodies partially identified, and 1238 bodies remained unidentified. The total number of bodies thus comes to 2,097. It is on consideration of this final report that the Supreme Court remitted the matter to the National Human Rights Commission, leaving the whole matter to be dealt with by the Commission.

The Commission may notice here that the arguments strongly urged in support of the more expansive view of the scope of the proceedings yet remains specifically unanswered. Ms. Nitya Ramakrishnan drew the Commission's attention to the observations of the Supreme Court in the course of its order dated 11th December, 1996 to the effect that "While the CBI is investigating the matter, we are of the view that the remaining issues involved in this case be left for the determination of the Commission which is the appropriate body for this purpose.............We request the Commission through its Chairman to have the matter examined in accordance with law and determine all the issues which are raised before the Commission by the learned counsel for the parties" (emphasis supplied). She urged that in view of the wide terms in which the Supreme Court expressed itself for the proceedings before the Commission, the Commission would be in error in imposing upon itself a narrow view of its own jurisdiction. She urged that an interpretation consistent with upholding justice and Human Rights and human dignity should be preferred, as else, she said, the high expectation of the people would remain unfulfilled as the matter concerns a tumultuous phase in modern Indian history where the State had lost control over the situation and those who wielded the coercive force of the State had run amuck. She was conscious, she said, that such an exercise would be a demanding and difficult one requiring expansive mechanisms for investigation; but said that was no consideration when such an important issue of the very survival of democratic fabric, Rule of Law and the right to life had been challenged. The Commission has bestowed anxious though to this argument which was articulated in strong and emotional terms. The Commission should not be understood as belittling the seriousness of the questions and issues raised by the learned counsel; but the question is whether such a larger exercise was intended by the Supreme Court to be undertaken by the Commission. On a careful consideration, the Commission is unable to subscribe to the expansive interpretation of the scope of its task suggested by the petitioners.

In our opinion, the observations of the Supreme Court excerpted above and relied upon by Ms. Nitya Ramakrishnan do not have the effect of enlarging the scope of inquiry which, by the order dated 15.11.1995 was confined to the averments in the Press Note of 16.1.1995. The observations of the Apex Court relied upon merely convey that all issues that may be raised by the learned counsel for the parties related to and arising in connection with the cremation of the dead bodies in the crematoria located in the three Police Districts of Amritsar shall be determined by the Commission. The issues would be such as the awarding of compensation and other appropriate and related reliefs wherever appropriate and justified. In view of the clear and specific direction of the Supreme Court, it is not possible to accede to the contention of the learned counsel for the petitioners that the scope of inquiry is not limited to cremations that took place in the crematoria located in the three Police Districts of Amritsar, Majitha and Tarn Taran but the entire gamut of all 'extra-judicial eliminations' in the State of Punjab.

The view that the commission takes of the matter, received further support from what the Supreme Court itself said in its order dated 10.09.1998 while disposing of the application of Union of India challenging the Commission's order dated 4.8.1997 on the preliminary issues. The Supreme Court 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 which has rightly held itself to be a body sui generis in the instant case."

In the light of this categorical direction of the Supreme Court itself, there is no justification for any doubt in regard to the true scope of inquiry which the Commission is to undertake under the remit of Supreme Court.

For the reasons stated above, the Commission considers it fair to say that the scope of the inquiry under the Supreme Court's direction, is limited only to those illegal killings / disappearances that culminated in the cremation of 2907 bodies (585 bodies fully identified, 274 bodies partially identified and 1238 bodies unidentified) in the crematoria located at Durgyana Mandir, Patti Municipal Committee Crematorium and Tarn Taran Crematorium located in the Police districts of Amritsar, Majitha and Tarn Taran which were also the subject matter of inquiry by the CBI  in pursuance of the Supreme Court dated 15.11.1995. The contention of the Petitioners to the contrary that the Commission should undertake an investigation of all the alleged Police killings in the State of Punjab, apart from being extremely expansive in nature, does not seem to square or be reconcilable with the express terms of the Court's remit.

                                                                                      Sd/-

                                                                             (Justice M.N. Venkatachaliah)

                                                                                    Chairperson

                                                                                      Sd/-

                                                                             (Justice V.S. Malimath)

                                                                                      Member

                                                                                      Sd/-

                                                                             (Virendra Dayal)

                                                                                      Member

January 13, 1999.

Second Order

BEFORE
THE NATIONAL HUMAN RIGHTS COMMISSION
NEW DELHI
Case No. 1/97/NHRC
(Arising out of the Order dt. 12th December, 1996
of the Hon'ble Supreme Court of India
in Writ Petition 447/1995 and 497 of 1995)

CORAM :

 

PROCEEDINGS

These proceedings are a sequel to the pronouncement of the Commission on the scope of the remit under the orders of the Supreme Court of India. The contention of the petitioners was that the Commission was required to investigate all the cases of what are termed "extra-judicial eliminations", "involuntary disappearances", "deaths in fake encounters", etc. attributable to the alleged police excesses in Punjab.

2. The contention to the contrary by the Union and State Governments was that the Supreme Court had confined the scope of the proceedings before the Commission only to the examination of 2097 cases of persons whose bodies had allegedly been illegally cremated by the police as 'unidentified/unclaimed' in the three Police Districts of Amritsar, Tarn Taran and Majitha in the revenue District of Amritsar.

3. After hearing the Learned Counsel on both sides, the Commission has taken the view that on a proper understanding of the order of the Supreme Court, the scope of the Commission's jurisdiction is confined to matters relating to the alleged unlawful cremation of the 2097 bodies in the district of Amritsar and that the idea of a more expansive view of the Commission's role is not supportable in the terms of the Supreme Court's remit.

4. It is time now for finalising the modalities for the conduct of the further proceedings. Indeed, over two years have elapsed after the orders of the Supreme Court came to be made. Having regard to the urgency of the matter and the purpose and intent of the Supreme Court in remitting the matter to the Commission, it is necessary that the Commission should act with utmost dispatch and dispose of matters with the least possible further delay.

5. As was indicated in the course of the order of the Commission dated 14th August 1997, the requirements of administrative logistical support and additional accommodation shall have to be taken up on an urgent basis. In the course of the order dated 14th August 1997, the Commission had given a broad indication of the nature of the administrative support necessary. It was therein observed:

"The Commission requested Shri R. Venkataramani to convene a meeting of the Learned Counsel for all the parties and officers of State of Punjab and the Union Government to evolve modalities for the conduct of further proceedings. Since a large number of alleged cremations are said to have taken place it may not be possible for the Commission or its instrumentalities, such as Commissions of Inquiry that may be set up it was suggested to the Learned Counsel --- and they seem to be agreed on this --- that the appropriate procedure might be to invite, by public notice, claims in an appropriate proforma from those who are aggrieved and such cases shall be inquired into to ascertain whether the deaths and subsequent cremations or both were the results of acts which constituted violation of human rights or constituted negligence on the part of the State and its authorities in preventing such violations and if either or these questions is answered in the affirmative, then the basis for the quantification of compensation.

Learned Counsel shall also discuss the details of the machinery to be set-up for conducting the inquiries by Commissioners of Inquiry subject, of course, to the final imprimatur thereon by the Commission itself. All the parties and their Counsel shall discuss these matters and place their view before the Commission on the next date of hearing. Learned Counsel may also suggest an appropriate pro-forma for the preferring of the claim".

6. Despite the lapse of nearly an yearly and a half, the State and Union Governments have not made any specific proposal for the requisite accommodation to the Commission for effectuating its functions and obligations on the directions of the Supreme Court. The Joint Secretary in the Ministry of Home Affairs has forwarded a copy of his communication dated 16th December, 1998 addressed to the Ministry of Urban Affairs to make available the requisite space. What is significant in this communication is that it envisages an alternative, namely that the Commission itself should make arrangements to secure the requisite accommodation on rent. This, the Commission is afraid, is not a task that it should be expected to undertake. It is necessary to mention that in the course of the proceedings before the Supreme Court both the State and Union Governments held out assurances of cooperation and assistance to the Commission for the discharge of its responsibilities under the Supreme Court's mandate. The Commission directs that at least 3000 sq. feet of office space for the staff and 3000 sq. feet for the Court-halls and chambers of Commissioners of Inquiry and their personal staff shall be made available at New Delhi, preferably proximate to the headquarters of the Commission. The requisite furniture may be made available by the concerned Departments of the Union and State Governments.

7. Till appropriate alternative staff is secured on deputation or on contract basis, Shri R.C. Jain, Registrar, Law Division of the Commission shall act as the Registrar of the Commission in relation to this assignment undertaken at the Apex Court's behest. The Registrar shall cause to be published public notices in the form prescribed in Appendix-I hereto inviting claims from the legal heirs. The public notices shall be published in one leading English national daily newspapers having circulation in and around the District of Amritsar one each in English, Hindi and Punjabi languages. The public notices shall be caused to be issued on or before 31st January, 1999 fixing 10th March, 1999 as the last date for receipt of the applications which shall be filed in the prescribed Form (Appendix-II) either in person or by registered post in the office of the National Human Rights Commission, Sardar Patel Bhavan, Sansad Marg, New Delhi - 110001 or at the office of the Punjab State Human Rights Commission, Room No. 226, Mini Secretariat, Sector-9, Chandigarh.

8. The Commission desires to point out that the initial burden of establishing that the cremations done by the police were so done in accordance with the procedures prescribed by law in that behalf rests upon the authorities of the State. The State Government shall, therefore, cause to be filed on or before 10th March, 1999 before the Commission a list of all the cremations done by the police in respect of  'unclaimed/unidentified bodies' in the crematoria of Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 and December, 1994. The information shall be furnished in a chronological order crematoria-wise. The State Government shall also state whether in respect of each of those cremation the rules for the time being in force regulating cremations of unclaimed/unidentified bodies have been followed by the police. However, further details of the compliance with the rules and the consequence of their compliance or non-compliance shall be examined at the appropriate stage later.

9. In respect of the procedure for determining the claims in addition to the cases that the Commission may directly enquire into, it would be necessary to have, to begin with, three Commissioners of Inquiry of the rank of retired Judges of the High Courts.

The Commissioners of Inquiry will be required to conduct inquiries into and examine the claims and to make appropriate recommendations to the Commission of their findings and proposals for the relief if any to be  granted.

10. The requirement of the additional staff for the work of the Commission in relating to the "Punjab mass cremation cases" shall be the following: -

 Registry

 Registrar (in the rank of District Judge)

 Dy. Registrars    - 3

 Stenographers    - 4.

 Section Officers    - 6

 L.D.C.s     - 6

 Peons      - 6

 Enquiry Commissioners

 Commissioners of Inquiry  - 3

 Court Masters    - 3

 Private Secretary-cum-Stenographer  - 3

 Peons      - 3

Additional requirements, if any, will be specified as and when occasion might arise.

The staff shall either be taken on deputation basis from other Departments/Courts or appointed on contract basis for a period of one year in the first instance.

11. In order to defray the expenditures the State Government of Punjab shall initially deposit a sum of Rs. 25.00 lakhs with the Commission on or before the 15th of February, 1999.  This will be deposited in a distinct bank account.  Shri D. Kanunjna, Senior Accounts Officer of the Commission shall maintain this account.

                                                                                      Sd/-

                                                                            (Justice M.N.Venkatachaliah)

                                                                                       Chairperson

                                                                                       Sd/-

                                                                             (Justice V.S.Malimath)

                                                                                      Member

                                                                                      Sd/-

                                                                             (Virendra Dayal)

                                                                                      Member

13th January, 1999