IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition  14133 of 1998

Sudershan Goel

Petitioner(s)

Versus

Union of India and others

Respondent(s)

Affidavit on behalf of the intervener the Committee for Coordination on Disappearances in Punjab, through its Convener Ram Narayan Kumar c/o House no. 742, Sector 8, Chandigarh.

    I, the above named deponent, do hereby solemnly affirm and declare as under:

Summary of objections to the maintainability of the petition:

1.  The petition is frivolous, and lacks material or legal basis for the relief claimed in the petition and the petition has no locus standi to invoke the writ jurisdiction in this public interest litigation.  It is an attempt to hinder public interest.

2.  Before invoking Article 226 for any writ, the party must clearly show the real or imminent infringement of a vested right, and a concomitant legal duty in the authority whose lapse should warrant the issuance of a writ.

3.The work of the Peoples’ Commission derives legitimacy from the guarantees enumerated under Article 19(1) of the Constitution. These guarantees are sacrosanct and can only be curtailed under the law if their exercise conflict with the imperatives of national security itemized under Article 19(2). These are matters of assessment by authorities designated with the power of such assessment, which cannot be anticipated by a petition under Article 226. 

4.  Intervention of social activists and their organizations in matters involving the rights to life and liberty are judicially recognized principles. This recognition of their role synchronizes with the governmental obligation to respect and facilitate their right to information.

5.   In India and abroad, inquiries into human rights violations by Peoples’ Commissions have for long been routine.

6. There is no compulsion on any group of people to recognize or participate in the work of the Peoples' Commission. There is no law to prevent the Peoples’ Commission from seeking response from opposite parties on complaints of human rights violations that are publicly made. They remain free to ignore or entertain the queries. It is open to the Peoples’ Commission to reach its conclusions even without their participation. If any opinion finally expressed by the Peoples’ Commission constitutes an infringement like defamation or any other violation of law, the remedy lies in the civil/criminal courts for a specific relief, not Article 226 for restraining the Commission from even hearing of the complaints.

7. The insinuations contained in paragraphs 2, 8, 12, 14 and 15 of the petition are not only preposterous, but also reflect distortion of facts and a dismal ignorance of the law. Clause 1 of the Article 5, referred in the paragraph 8 of the petition, is a statement of categorization, and no more. Clause 2 of the same Article is a standard adjunct to the principle of freedom from double jeopardy. The Article 7 of the Rules says that all the proceedings of the Commission would assiduously conform to the rules of procedure under the Commissions of Inquiry Act and the principles of natural justice. The Commission has no intention of dealing with or commenting upon pending matters. The members of the Commission have themselves been high functionaries in India’s judiciary, and it is improper to raise doubts about their honesty of purpose without any basis.

8.    The terms of reference of the Commission, the Article 5 discussed in the petition, and the Article 7 that deals with the principles of procedure are as under:

Terms of reference, article 5 and 7

The Commission would conduct its inquiries within the parameters of the following terms of reference:

1. The Commission would examine the complaints of illegal abductions, custodial torture, enforced disappearances, summary executions and en masse illegal cremations, and give its findings on: (a) whether from 1979 to 1997 the agencies of the state carried out and tolerated - directly or indirectly - any of the above mentioned atrocities and thereby committed violations of human rights as guaranteed under the constitution of India and various international covenants and declarations. (b) Whether the state agencies/ individuals have prima facie committed any offence under the law of the land or international law. The Commission would further suggest the remedies available to the victims of the aforementioned atrocities including their entitlement to compensation from the State and its agencies.

2.   The security forces in Punjab were equipped with extraordinary powers to meet the law and order situation, in particular arising out of the alleged militant activities.  Draconian powers were given to the investigating agencies to prosecute the individuals and the groups suspected to be engaged in violence.  The Commission would go into the causes and the reasons for the utter failure of the State and its agencies in the performance of their duties as required under the rule of law.

Article 5

Non-bis-in-idem

(1) Inquiries by the People's Commission into cases that are sub-judice shall be categorized separately.

(2).The People's Commission may conduct inquiries into the conduct of persons who have already been tried by a court of law only if it can be established that the court proceedings were not impartial or independent, and were designed to shield the accused from criminal responsibility, or the case was not diligently prosecuted.

7.      Rules of procedure and evidence

The judges of the Commission shall adopt rules of procedure and evidence for the conduct of the preliminary proceedings, taking cognizance of complaints, issue of notice, the admission of evidence, the protection of victims and witnesses and other appropriate matters in accordance with the rules of procedure under the Commissions of Inquiry Act.  They shall also take into account the rules of natural justice.

Objections to the maintainability of the petition

1.                  This petition is not only frivolous, and lacking in the material or the legal basis for action, it also relies on deliberate distortion of facts regarding the background and the working of the Peoples’ Commission on Human Rights Violations in Punjab, which the petitioner seeks to prohibit with a writ of Mandamus from this High Court. The true facts on the background, the conceptual and procedural parameters that bind the working of the Peoples’ Commission, as also its objectives, are part of meticulous documentation and record. If required, they can be submitted to this court. The petitioner who claims to speak on behalf of millions of Indians have no experience of either working in the field of human rights nor any pretension to be associated with any such organisation who has special interest or information or factual data on which sweeping assumptions are made and stated in the petition.  It is a pure and simple an exercise in public relations and publicity.   

2.      This petition has been filed under Article 226 of the Constitution that gives the High Courts wide powers to reach injustice wherever it is found, especially for the enforcement of any of the rights conferred by Part III of the Constitution. Before invoking 226 for any writ, the party must clearly show the real or imminent infringement of a vested right. Although the petitioner claims to “represent the sentiments of millions of citizens of India”, he has failed to establish the real or imminent infringement of a right vested either in himself or in any other person, group of persons, or any institution. The petition also fails to establish a concomittal legal or public duty in the authority whose lapse should warrant the High Court to issue a writ. In the event, no writ can issue. This is the law under a plethora of rulings. [1]

Averments contained in the para two of the petition are based on the assumption that the proceedings of the Peoples' Commission constitute grave threat to law and order in the State. The assumption is without any basis. The Commission held its first sitting at Chandigarh on August 8th, 9th and 10th of 1998 without creating any problems. Hundreds of victims appeared before the Commission and many more watched the proceedings, which were conducted with impeccable decorum and openness. The proceedings were open to all members of the public and were extensively reported in the press. The press reports, on the basis of which this petition has been filed, do not disclose any law and order problem created by the organizers, the participants or any other member of the public.

3.                  The Peoples’ Commission on Human Rights Violations in Punjab is a creation of the Committee for Coordination on Disappearances in Punjab that works for the following avowed objectives: (a) To develop a voluntary mechanism to collect and collate information on serious human rights abuses committed by the State agencies, and to pursue for justice, (b) to evolve a workable system of state accountability, (c) to lobby for India to change the domestic laws in conformity with the UN instruments on torture, enforced disappearances, accountability, compensation to victims of abuse of power and other related matters, (d) to initiate a debate on vital issues of state powers, its distribution, accountability and to work for a shared perspective on these matters with concerned organizations and movements all over India. These aims and objectives, the human association on their basis, the work of fact-finding and their publicity derive legitimacy from the Indian constitutional guarantees. They are also in consonance with the Universal Declaration of Human Rights, Convention on the Prevention and Punishment of Genocide, International Covenant of Civil and Political Rights, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. The guarantees under these international human rights instruments have also been pledged by the Indian Constitution, which the State agencies are under the commitment to fulfill. It is also the right and the obligation of all citizens to ensure that the State does not renege on them. This is the ultima ratio of the Indian constitutional guarantees that we invoke to vindicate the activities of our Committee and the Peoples’ Commission.  These guarantees are sacrosanct and can only be curtailed under the law - meaning statute/statutory rules or statutory regulation as defined in Kharak Singh Vs State of U.P - AIR 1963 SC 1295 - on the establishment that their exercise aim at undermining the security of the State or overthrowing it. That is the law since Romesh Thappar Vs State of Madras. [2] Rangarajan Vs P. Jagjivan Ram [3] explains that “the freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion.” (p. 582) Quoting Walter Lippmann, the judgment further says: “When men act on the principle of intelligence, they go out to find the facts… When they ignore it, they go inside themselves and find out what is there. They elaborate their prejudice instead of increasing their knowledge.” And that, “the State cannot prevent open discussion and open expression, however hateful to its policies.” The judgment further explains that: “…freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. Th4 at would tantamount to negation of the rule of law and surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.” (p. 599) Naraindas Indurkhya vs. State of Madhya Pradesh [4] declares: “It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.” Bhagwati Charan Shukla vs. Provincial government, later endorsed in Ramesh vs. Union of India, [5] says:   “That the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in ever hostile point of view.” (p. 586). The rights subsumed under Article 19 of the Constitution are rights which must apply, as the European Court of Human Rights said in the well-known case of Handyside Vs UK 1976: "not only to "information" or "ideas" that are favorably received or regarded as inoffensive but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society." [6]   Both Romesh Thapar Vs State of Madras and S. Rangarajan vs. P. Jagjivan Ram explain precisely when the freedom of expression will conflict with the limitations and the dangers enumerated under Article 19(2). However, those anticipated dangers and limitations should not be remote, conjectural or far-fetched. Further, an organization of individuals whose avowed objectives are in consonance with the rule of law cannot be branded as imminently threatening their breach. If its working runs counter to the avowal, it remains to be seen in what manner and to what extent that working contravenes any law. A petition under Article 226 cannot anticipate matters of assessment by authorities designated with the power of such assessment.

4.                  The Supreme Court and the High Courts in this country have clearly recognized the intervention of social activists in matters concerning life and liberty. Bandhua Mukti Morcha, Sheela Barse, [7] and more recently the matter of illegal cremations carried out by the security forces in Punjab, in which the Supreme Court ordered the CBI to hold an inquiry, [8] uphold the principle that such activists, individuals and human rights organizations are entitled to collect information that can form the basis of intervention under Articles 32 and 226. This recognition of their role synchronizes with the mandate that the government should respect and facilitate their admittance to sources of information, even in sensitive areas. Clear instructions in Sheela Barse vs. Union of India [9] explain these concomitant obligations of the government. Justice V. R. Krishna Iyer, former Supreme Court judge and Chairman, Indian People's Human Rights Tribunal, in his foreword to the People's Commission Report regarding Bombay Communal Rights, dated 7 July 1993, observed as under: "The right to know is a citizen's right. The freedom of information is fundamental to all fundamental rights. A People's Tribunal gathering information, collecting relevant materials on an event of public importance, sorting them out judicially, marshalling the evidence and conveying the whole testimony so gathered, in the shape of a report, is the discharge of public duty of the highest order. No one can, under the laws of India, stop the right to give or receive information, except where it is mischievously intended to interfere with or skew the course of judicial justice." And here is a petition that prays for a writ of mandamus under article 226 to prohibit the activities of a human rights organization.

5.   In India and abroad, inquiries into human rights violations by Peoples’ Commissions have for long been routine. The Indian National Congress had itself set up a Commission to investigate repression in Punjab following the agitation against the Rowlett Act, although the Hunter Commission, an official body, was already going into the matter. Mahatma Gandhi himself worked with Motilal Nehru and C.R. Das to produce a report that differed with the findings of the Hunter Commission on many substantial issues. The Motilal Nehru Committee, which later contributed so significantly to the writing of the Indian Constitution, was the Congress alternative to the Simon Commission's constitutional proposals. Jawaharlal Nehru's Planning Committee, the precursor to the Planning Commission of the later day, was a direct challenge to the Royal Commission on Labour in India, known as the "Whitley Commission" that had been set up in 1929. The Sapru Committee’s Report of 1945, which later contributed significantly to the Chapter III of the Indian Constitution, was also a private initiative. The Committee had been appointed by an "All Parties Conference" in 1944, when the War had not yet ended, Japan having surrendered only in August 1945. INA was still marching with the declared objective to capture the Red Fort. Yet no body talked about banning the Committee. More recently, there have been numerous non-official inquiries into serious allegations of human rights violations and official acquiescence into orchestrated violence against the minority communities and other under-privileged groups of people in various parts of India. Orchestrated pogroms and communal riots in Delhi, Meerut, Aligarh, Karnataka, Ayodhya, Maharashtra have been investigated by Peoples’ Commissions. Justice H. Suresh (Retired), a member of the Peoples’ Commission in Punjab, himself belonged to a Peoples’ Tribunal that investigated the Bombay riots of December 1992 and January 1993, while the official Commission called Shri Krishna Commission was already conducting its proceedings. The Peoples’ Tribunal submitted its report within six months of its constitution whereas the official Shri Krishna report took six years to make public exactly the same findings. The Indian People's Tribunal on Environment and Human Rights (IPT), which authorized the unofficial investigation, was established in 1993 as a permanent body to counter governmental apathy and the judicial red-tape by initiating campaigns and public interest litigation on the strength of such inquiries into human rights and environmental issues. The Indian Peoples’ Tribunal has so far undertaken eleven such investigations and has affiliated with numerous other fact-finding commissions. And here is this petition that prays for a writ under Article 226 to ban the first genuine peoples’ initiative to investigate the reports of human rights violations in Punjab.

6.   If any group of people or individuals do not like the Peoples’ Commission, there is no compulsion on them to recognize it or to participate in its work. If the Peoples’ Commission forces them to do so by any unlawful act, the penal laws of the country are sufficient to protect them, and they cannot invoke the extraordinary writ jurisdiction of Article 226 for the purpose. No agency of the State can claim the right or the duty to ensure that any individual or collection of individuals do not question or talk about or reach their own conclusions about any matter of public importance. How can victims of police repression be prevented from expressing themselves to the Peoples’ Commission if they so wish? Under what law can the Peoples’ Commission be prevented from seeking response from opposite parties on complaints of human rights violations that are publicly made? The officials are free to ignore or entertain the queries. It is open to the Peoples’ Commission to reach its conclusions even without their participation. If any thing expressed by the Peoples’ Commission constitutes an infringement like defamation the remedy lies in the civil/criminal courts, not 226.

7. The petitioner’s insinuations that the Peoples’ Commission aims to set up a parallel judicial system, to subvert the judicial process, and that its work will amount to interference in the administration of justice, made in the paragraphs 2, 12, 14 and 15 of the petition, are not only irrational, they also show the tendency to misconstrue facts to promote a partisan position. To bolster its unctuous claims the petition harps on the Article 5 of Rules of the Peoples’ Commission on Human Rights Violations in Punjab by distorting its context and the meaning. Clause 1 of the Article is a statement of categorization and no more. In any case, as already made clear by the Commission in its proceedings held at Chandigarh, it is not going to deal with or comment upon any pending matter. This position is reiterated. Clause 2 of the same Article is a standard adjunct to the principle of freedom from double jeopardy in the international human rights law, as practiced under the aegis of the United Nations. In any case, it is submitted that any judgment delivered by any court of law is open to critical scrutiny and analysis. The issues involved in cases before the Commission are of fundamental character concerning the rights of the citizens. If brought to the notice of the Commission that the courts have been instrumental in defeating or in any manner demeaning the fundamental rights of the citizens, the Commission would be within its legal rights to examine such judgments in decided cases. It has repeatedly been established that the courts are not beyond error, in determining facts and in interpreting law. There are many internationally celebrated cases to show that grave injustice through judicial error of judgment could be averted only because of public outcry and private initiative of citizens committed to fundamental human rights. The famous Dreyfus affair, that characterized the social and political tensions of the French Third Republic, comes immediately to mind. Alfred Dreyfus had already been convicted in 1894. The people, the courts, the government authorities, the anti-Semitic press, etc., all upheld the conviction. But the members of the Dreyfus family with Emile Zola's help built up a public campaign, and by bringing out new facts compelled retrials. The courts were not easily persuaded. Only in 1905, did a civilian court of appeals set aside the conviction to rehabilitate Dreyfus. This would never have been possible if persons like Zola had not refused to be cowed down by judicial error, belonging to a larger social prejudice. Another famous case, in which judicial error could not be reversed because of public apathy, is from the USA. The case involved Ethel and Julius Rosenberg and Morton Sobell, who in 1951 got convicted to death under the Espionage Act on the charges involving transmission of atomic secrets to the USSR. Rosenberg got electrocuted in 1953. In late sixties, attempts were made, unsuccessfully, to reopen the issues of evidence on behalf of Morton Sobell. It was argued that the original jury had not been given the real facts. These attempts did not succeed, but finally Morton Sobell got paroled in 1969. The evidence of unimpeachable character that has since surfaced shows that Rosenbergs became scapegoats for Edgar Hoover's anti-Communist witch-hunt. Scientists involved in the Manhattan Project, including George Kistakowski and others, as well as Alfred Lilienthal of the Atomic Energy Commission have revealed that the prosecution's evidence was forgery and that the government would have dropped the prosecution if the defense attorneys had not been overawed by claims of vital government secrets that should never be revealed to insist on closer and public examination of the evidence. It would have made a huge difference if these scientists had spoken up before Rosenbergs got electrocuted. But they kept quiet apparently in the national interests, and allowed innocents to die by the incapacity of the courts to determine facts on their own.

It may be argued that the judiciary as an institution of democracy may at times be so affected by political and popular pressures as to falter in saving the "due process". The susceptibility of the judiciary to such pressures was best echoed by Justice M. H. Beg in A. D. M., Jabalpur Vs S. Shukla of 1976: "The will of the state, indicated in some form of expression, is the law, the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the will of the State so indicated. What the State wills is the coterminous measure of law; no preexisting rule is the measure of that will." [10] Although this view has become considerably alleviated by the affects of the forty-fourth amendment of the Constitution in 1978, and by the ratio of Maneka Gandhi v. Union of India and other judgments like Minerva Mills Ltd. Vs Union of India, [11] the judiciary has often been acting under the erroneous perception of limitation of authority to enforce fundamental rights. In a society that tends to relegate human rights to a secondary place on considerations of political expediency, the judiciary has a crucial role that holds the balance between democracy and dictatorship, between life and death for thousands. Its integrity cannot survive if we place its actions beyond all public scrutiny. After all, we have an established history of political manipulation and interference with the judiciary, which has explicitly aimed to destroy its independence and integrity. It is acknowledged that our judiciary - with its beleaguered judges, its backlog of cases, corruption, nepotism and political appointments vitiating its capacities for integrity, courage and dignity - is in an unenviable position. We also know how the officers of the executive and the security agencies have held judiciary's attempts to enforce human rights with disdain and even outright hostility. Many international organizations like Amnesty, Human Rights Watch-Asia, and Federation International des Ligues des Droits de L'Homme have commented on Indian judiciary lacking the teeth or the will to bring justice in extraordinary situations that obtained in places like Punjab. In this context, the objection to the mandate of Rule 5 is only typical of that regressive legal thinking that seeks to transform our courts into Star Chambers of 16th century Britain.

Ram Dulari Saran, versus Sri Yogeshwar Sri Ram Balbhacharya [12] proclaims that the principle of sub-judice does not apply to expositions that develop out of matters of public concern not “merely confined to the contending parties before the court” but one that “overflows and affects a very large section of the people”. In such matters, “comments involving the general nature of the controversy, apart from the dispute before the court, could not be wholly shut out.”(p. 71). Ram Dulari Saran says: “Where, however, as I have mentioned above, the nature of the controversy itself has a broad sweep, then in such a case the court would take notice of only such comments which pointedly refer to the proceedings before it and which may be construed to interfere with the judicial process.” Ram Dulari Saran categorically lays down that only such public expression of views on the merits of claims of contending parties in a matter that is pending before a court of law, which interfere with the flow of justice during the pendency of case amount to contempt of court. (p. 72). The guiding principle was laid down by Justice Holmes in Joseph Lochner vs. People of the State of New York. [13] The principle said:   “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.” There has to be specific demonstration of interference with a pending matter before these principles can come into operation. There is no such demonstration in this petition because there has been no such interference “with the flow of justice” in any pending matter. As to the permissible limits of the general and public airing of criticism about the administration of justice, a plethora of rulings lay down the principles. [14] P. N. Duda vs. P. Shiva Shanker quintessentially sums up the point: “The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew.”(p. 1219). However, these are theoretical considerations that have no application to the points made in the petition. The objection to the Rule 5, raised in the petition, actually hits at the fundamental principles of common law that led to the abolition of prerogative courts, particularly the Star Chamber and High Commission that served the British Monarchy to tyrannically enforce social and religious policies, by the Long Parliament in 17th century Britain. This is one example, stark as it can be, of the regressive tendency in legal thinking in India which, if allowed to prevail, would not only destroy the basis of our judiciary in the common law, but would also transform it as an enforcement agency of misguided interpretations of national interest. The Commission has done nothing to even remotely justify the insinuations contained in the petition. The members of the Commission have themselves held high offices in India’s judiciary, and no doubts have been raised against their integrity, bona-fide and honesty of purpose.

8.                  The present writ petition is not maintainable, as the petitioner does not have any cause of action, either in facts or in law. Therefore, it is respectfully prayed that the above mentioned writ petition be dismissed with costs.  The petitioner neither represents any such group of people who can not approach this court. He has petitioned this court without verifying the simple facts regarding procedure actually followed by the Commission nor attended its hearing.

                            (Ram Narayan Kumar)

Convener, The Committee for Coordination on Disappearance in Punjab

Chandigarh

Dated 28.09.98

(R.S.Bains), (Veena Kumari) & (Manjinder Singh)

Advocate, Counsels for the intervener CCDP

Verification

Verified that the above contents of paras of the affidavit containing objections are based on the legal advice and believed by me to be true and correct. Nothing material has been concealed therein.

Chandigarh

Dated 28.09.98

(Ram Narayan Kumar)

IN THE HIGH COURT OF JUDICATURE FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition  14133 of 1998

          Sudershan Goel
Petitioner(s)

Versus

          Union of India and others
Respondent(s)

Additional affidavit on behalf of the Committee for Coordination on Disappearances in Punjab, added respondent No. 5, through its Convenor Ram Narayan Kumar, in response to the additional submissions filed by the petitioner on 13 November 1998.

1.   The first four paragraphs of the additional submissions filed by the petitioner throw light on a very impressive background of his involvement with social and political issues, spanning over the last two decades. Through his involvement in the movement for “Total Revolution”, launched by charismatic socialist leader Jai Prakash Narayan, and later in the democratic resistance to the dictatorial measure of Emergency regime imposed by Mrs. Indira Gandhi in June 1975, the petitioner becomes a harbinger of the movement for protection of inalienable human rights of all citizens that is slowly gaining ground in our country. Given his background of commitment to human rights, the petitioner should be able to empathize with the perspective, guiding our work, that sovereignty of State is an important principle of civilization rightly suggesting itself to be inviolable so long as it is exercised indivisibly with respect for the fundamental rights of all citizens. The deponent of the present affidavit himself had been imprisoned without trial for nineteen months during the period of Emergency, for the reason of opposing the highhanded measure, and has since then been active in the sphere of human rights without any other political affiliation. He has been involved in documenting human rights abuses in Punjab for more than a decade and, as the author of two books on the Punjab conflict, knows the historical and political context in which the violations occurred. The Committee’s documentation projects aim to ensure completeness and reliability of all serious contentions of human rights abuses. The terms of reference of the People’s Commission on Human Rights Violations in Punjab are very wide and include investigations in all cases of human rights violations, whether committed by the State agencies or by militants. It is open to all that allege victimisation at the hands of militants - including police widows - to approach the People’s Commission, which would treat them equally with other complainants. The Committee’s position on the methods of violence followed by the militants has been reiterated on a number of occasions: They evoke in us nothing but abhorrence. Indiscriminate violence, whosoever be responsible for it, stems from a world-view that blurs individual identities of oppressors and the oppressed behind blanket descriptions and stereotypes. This mentality, which we condemn as the precise antithesis of civilisation, undermines the very foundation of justice, namely the notion of concrete moral agent. However, as we all know, large numbers of militants have already paid for their deeds with their lives. We must also not forget that those who had nothing whatsoever to do with militancy were nevertheless - on extraneous considerations - got abducted, tortured and killed in custody or staged “encounters”. There are hundreds rather thousands of such cases. The victims in this category include lawyers, doctors, workers, religious preachers, journalists and human rights activists. Bread earners - fathers, sons, husbands - belonging to large number of families are either missing or killed. The majority of these people are the poor, the uneducated and the powerless, who cannot afford the process of legal justice, who the elite across the lines of political divide do not mind seeing destroyed.  These are precisely the kind of cases that are being presented before the People’s Commission, a functional-forum, that was constituted after the Punjab government reneged on its electoral pledge to constitute a Truth Commission to investigate all reports of human rights violations in the State. Any compromise with the ongoing campaign to stymie its investigations, at this stage, will only demonstrate that the upper echelons of the Indian society are no longer certain about the historical foundations of Indian nationhood. The main thrust of this offensive lies in projecting those who were responsible for unspeakable violations of human rights as warriors, soldiers of a just war for the preservation of India's unity. The obverse side of this projection lies in denigrating the human rights organisations as allies of India's enemies. The offensive is an attempt to arouse nationalist and patriotic emotions, in themselves noble, for purposes that have extremely negative implications for our country's future. The soul of the Indian Republic lives in a democratic constitution, civil liberties constituting its cornerstone. Violations of fundamental rights, consequently, undermine the very basis on which the Indian Republic is founded. The threat to the territorial integrity of the nation arose, in the first instance, from the alienation of sections of people; a direct outcome of the myopic and divisive politics, which the ruling elite pursued for its own narrow vested interests. Cessation of divisive politics, coupled with reconciliation based on substantial evaluation of the issues that underlie the unrest, can remove the threats to nation's territorial integrity on a permanent basis. The refrain of the offensive, however, is exactly the opposite; it is being claimed that the reign of terror, is the only way to preserve country's territorial integrity. Is it at all possible for a country to keep its own people under a regime of terror without doing grievous injury to its democratic structure and without converting transitory threats into permanent ones? It is therefore imperative that all those who owe allegiance to the Indian Republic realise that if the battle for civil liberties is lost, the overcoming of the myriad threats to Indian sovereignty and territorial integrity, which exist or may arise, would become all the more awesome.

2.The paragraph five of the additional submissions by the petitioner correctly refers to the Rules of the People’s Commission on Human Rights Violations, circulated by the Committee at a press conference held on 27 August 1998.

3.  The paragraph six of the additional submissions filed by the petitioner correctly states the schedule for the second sitting of the People’s Commission on 28th, 29th, and 30th of November 1998, as announced in a Press release of the Committee dated 2 November 1998. It is also correct that the aforementioned Press Release of the Committee declares an organising committee, responsible for making arrangements for the scheduled sitting of the People’s Commission at Amritsar. The organising committee comprises, among others, Mr Kirpal Singh Randhawa as a member. The deponent of this affidavit was not aware of the Criminal Writ Petition pending against Mr. Randhawa, referred to in the paragraph. Mr. Randhawa was included in the organising Committee as the local representative of the Punjab Human Rights Organisation, of which Justice (rtd.) Ajit Singh Bains is the Chairman. As explained in the paragraph three of the first affidavit filed by this deponent on 28 September 1998, the Committee for Coordination on Disappearances in Punjab is an umbrella organisation comprising eighteen affiliate groups and other individuals who subscribe to the perspective and the programs enunciated in a position paper that was adopted at the Committee’s founding conference at Chandigarh on 9 November 1997. The position paper is annexed herewith and marked as Annexure A-1. The organising Committee at Amritsar, announced in the Press Release of 2 November 1998, carries the burden of making the essential infrastructural arrangements, like the venue, accommodation and food, and has no influence on the working or the conduct of the People’s Commission. The elucidation of the contents of the Writ Petition No. 70 of 1998, which is stated to be pending before this Hon’ble court, is improper for the reason that it aims to denigrate a person on the strength of a complaint that has not been proven. Likewise, the paragraph eight of the additional submissions filed by the petitioner refers to the criminal charges against Jaspal Singh Dhillon and D. S. Rajput that are pending trial. This is improper. D. S. Rajput is not even a member of the Committee for Coordination on Disappearances in Punjab. Jaspal Singh Dhillon was a member of the Committee as the representative of Human Rights and Democracy Forum, which became an affiliate organisation after ratifying the position paper, the annexture A-1, that binds the working of the Committee.

4.   The paragraph seven of the additional submissions by the petitions incorrectly mentions that the Public Notice regarding the second sitting of the People’s Commission summons 124 police officials to appear before it. It is open to perusal from the copy of the published notice that apart from intimating the dates and the venue of the hearing, the notice states that the officers against whom complaints have been made, “may appear either in person or through authorised representatives. Reply, if any, may also be filed in writing before the Commission, on or before 28 November 1998.” The Committee has repeatedly made it clear, also through its Press Releases, that there is no compulsion on any group of people to recognise or participate in the work of the People’s Commission, and that they are free to ignore or entertain the queries. The point has been reiterated also in the Press Release, appended by the petitioner as Annexture P-2.

5. The reference to section 3-A in the Section 197 of the Criminal Procedure Code, in the paragraph nine of the affidavit by the petitioner, is totally irrelevant. Section 3-A and 3-B, inserted in the section 197 of the Criminal Procedure Code by Act 43 of 1991, lay stipulations on the courts, which we are not. Besides, the section 197 relates to conditions for prosecution of public servants, whereas the People’s Commission is only mandated to do fact-finding and to submit its report. It is true that we regard special legislations that confer impunity on armed forces as being repugnant to requirements of anti-arbitrariness and reasonableness under Articles 14 and 21 of the Constitution. But it is a matter of opinion, which we are entitled to hold, to propagate and attempt to actualise it by all legitimate means.

6. The paragraphs ten to twelve of the additional submissions made by the petitioner, make wild allegations, which have been answered in the first affidavit of this deponent. The Committee for Coordination on Disappearances in Punjab has sincerely been attempting to persuade all sections of people, and their leaders, to associate with the work of the People's Commission so that all may concertedly move towards a framework of reconciliation and reform without sacrificing the imperatives of truth, justice and transparency. It is task which could have been more effectively pursued if the State of Punjab had appointed a Commission under section 3 of the Commissions of Inquiry Act to examine all human rights violations that occurred in the State over the last decade and a half, and also to determine the genesis of the violent turmoil that plagued the State, as also the reasons for the failure of the State agencies in maintaining law and order in spite of the draconian powers thy received to do so under various laws like TADA. Recently, newspapers in Punjab reported Chief Minister Prakash Singh Badal’s promise to bring about a suitable amendment of the Protection of Human Rights Act, 1993 to allow the State Human Rights Commission to investigate all complaints of human rights violations, without the time bar under clause 36(2) of the Act. In our response, which is annexed herewith as Annexture A-2, we have reiterated that the People’s Commission would cease its exertions if the State of Punjab would set up a Commission under the Commissions of Inquiry Act to examine all complaints of human rights violations.

7.  In the light of the foregoing, it is prayed that the petition be dismissed with costs.

Chandigarh                                                                   Ram Narayan Kumar

November 16, 1998                                                        Deponent

VERIFICATION

Verified that the contents of this affidavit are true and correct to my knowledge. No part of it is false and nothing material has been kept concealed.

Chandigarh                                                                   Ram Narayan Kumar

November 16, 1998                                                        Deponent

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