Sikh Human Rights Abuses

Enforced Disappearances, Arbitrary Executions and Cremations:
Victim Testimony and India's Human Rights Obligations
Interim Report

Section 3
THE ISSUES AND THEIR HISTORY

The following Incident-Report tries to bring out the politico-legal aspects of the Punjab tragedy, as well its human dimensions. We hope that the reader will share the sense of outrage which impelled us to document the gruesome events of the last decade and a half - enforced disappearances, arbitrary executions and secret disposal of dead bodies, all carried out by the State agencies. The Incident-Report also captures the urgency for accountability and reparation, which the situation calls for.

A PARADIGMATIC CASE:
Fifty-five years old Sardar Ajaib Singh from village Othiyan in Ajnala subdivision of Amritsar district was a man of worldly wisdom, who handled the problems of life in a calm and calculated manner. These qualities of his character had stood him in good stead, enabling him to preserve his family, property and considerable social standing in an area of Punjab that for a decade had remained locked in the spiral of Sikh insurgency and the State repression. Ajaib Singh was the elected head of his village council (Panchayat).
He had three grown up sons: Thirty-five years old Kulwinder Singh, married with three young children, was employed as the Panchayat Secretary at Naushera Pannua block of Tarn Taran subdivision in Amritsar district. It was a challenging job that involved attending to local problems concerning land, revenue and development. Kulwinder was very popular for the fairness and energy with which he performed his duties.
Second son Jagbir Singh, thirty-two, managed the family's twenty-five acres of irrigated agricultural land, which yielded good crops and income. His third son Maminder Singh, twenty-eight, became a registered medical practitioner. Ajaib Singh and his wife Manjit Kaur kept good health. As devout Sikhs, they often went on pilgrimages, and organized and attended with fervor the festivals of the religious calendar.
Ajaib Singh made some extra money as a property dealer and spent his spare time dabbling in the Congress politics, which brought him many influential friends also in the official and police circles. Things seemed to be going as well as they could under the circumstances.
As we said, Ajaib Singh had for long been associated with the Congress Party, and he had not given up the association even after the army assaulted the Golden Temple in June 1984. He was all praise for Rajiv Gandhi when, after winning the parliamentary elections with an unprecedented popular mandate early in the year, he signed an Accord with the Akali Dal's moderate President Longowal in July 1985. The Accord paved the way to the restoration of a popular government in the State. Although Longowal was assassinated soon after, his equally moderate successor, Surjit Singh Barnala led the party to a thumping victory in the State Assembly elections, and went on to form a government.
For a while, the situation seemed to be improving. But the central government was unable to keep the promises it had made in the Longowal Accord. The radical Sikh groups that had been lying low resurfaced. Militancy revived. The slogan of Khalistan was again in the air. In October 87, the Union government brought Punjab under President Rule after dismissing the Akali government. Paramilitary forces were deployed to crack down on extremists.
When he saw that the situation in his part of Punjab was becoming very tense, Kulwinder shifted his residence to Amritsar mainly for the reason that his young children needed education. Ajaib Singh gave him money to build a small house in Amritsar. Kulwinder daily commuted to his work on his motorcycle.
20 December 1991 was a crisp winter day. Kulwinder left for his work little late that morning. On the way, one man asked him for a lift on his motorcycle, a TVS Suzuki No. PB02-C-4455. The man later identified as Palwinder Singh Sona was a known militant.
It is possible that Sona forced Kulwinder to take him along on the pillion of his motorcycle, as his brother Jagbir Singh suggested to me. Subsequent events, however, indicate that the two may have been actually acquainted. That would hardly be inconceivable in the situation then obtaining in Punjab.
Thousands of young Sikhs had embraced the path of gun to confront the Indian State. Many empathized with their sentiments and helped them indirectly to find shelter and food even when disagreeing with the wisdom of their chosen path. Kulwinder's job brought him in contact with all kinds of characters, some of them very weird, who were involved in land and revenue disputes. If we assume that Kulwinder had known Palwinder Sona to be a militant, we must also see that he could not have refused the hitchhiker from the fear of reprisal.
The motorcycle was stopped for a routine check at a barrier set up by Sadar police station of Amritsar on the road across the railway station. Inspector Ajaib Singh, Station House Officer (SHO) of Sadar Police Station, was personally leading the check-over. One police constable at the barrier recognized Sona as a wanted militant and both of them were taken into custody.
By coincidence, the arrest was witnessed by Manjit Singh, head of the village council of Raja Sansi, an influential man with many contacts in the police. He was looking for a taxi near the barrier when the police nabbed the two. Manjit Singh was a friend of Kulwinder's father who also knew Inspector Ajaib Singh. Recognizing Kulwinder, he went up to the Inspector and pleaded for his release. But the Inspector did not agree.
Later, Manjit Singh went to Kulwinder's house and informed his wife Rajbir Kaur who immediately sent a message to her father-in-law in his village Othiyan. Ajaib Singh accompanied by his second son Jagbir Singh rushed to Amritsar and met Inspector Ajaib Singh at Sadar police station, who said that Kulwinder would not be released before a thorough interrogation.
The same night, Sona was killed in a supposed armed combat between the police and a group of militants. Punjab newspapers reported the killing on 21 December. The Tribune said Palwinder Singh Sona was a top militant who carried the designation of a Lieutenant General. The report also said that his three accomplices had escaped and that the police had also killed three other unidentified militants in armed encounters in the outskirts of the city.
The report made Ajaib Singh and his family very nervous. The police could easily kill Kulwinder in their custody and report it as a death of an unidentified militant in a combat. But on 21 December, Inspector Ajaib Singh and a large police force brought Kulwinder to his house No. 24 in Sahebzada Zujjar Singh Avenue on Ajnala road in Amritsar. The entire family was present when the police led him to search the house. The search did not yield anything incriminating. But Kulwinder was not allowed to converse with his family members and was taken away after the search.
Ajaib Singh decided to negotiate Kulwinder's release for money, without wasting any time. He involved some middlemen, including Manjit Singh of Raja Sansi village who knew the Inspector well.
Inspector Ajaib Singh demanded one hundred and fifty thousand rupees. Borrowing the amount from his relatives, Ajaib Singh sent it across to the Inspector through the broker who had negotiated the deal. By then, the Inspector had changed his mind. The case was no longer in his hands, he explained. Senior Superintendent of Police (SSP) Chattopadhyay had taken over the investigation.
Ajaib Singh now went to Raghunandan Lal Bhatia, a senior Congress leader and former Minister in the Union government, for help. Bhatia talked to the SSP two three times on telephone. The SSP said Kulwinder had to be interrogated. The SSP was not particularly courteous to the former Minister refused to talk to him again. Ajaib Singh then requested Surinder Singh Kairon, son of former Chief Minister Pratap Singh Kairon and another influential Congress leader in the State, to intervene. Kairon talked to the SSP who again was less than responsive.
Ajaib Singh asked the Sadar police station to formally register his complaint that Kulwinder had been illegally arrested. His friend, Deputy Superintendent of Police Davinder Singh called the Station House Officer to recommend the registration. But Sadar police station refused to do so.
Punjab was under the Governor's rule. So, Ajaib Singh sent urgent telegrams to the Governor, the Director General of Police (DGP), the Chief Secretary and the Chief Justice of Punjab and Haryana High Court, informing them about the illegal arrest and beseeching them to intervene. Later, he also sent detailed written petitions about the arrest and the disappearance. But there was no response.
Kulwinder had been very friendly with Birendra Singh Kalon, then Additional District Commissioner of Tarn Taran. Approached by Ajaib Singh for help, Kalon found out that Kulwinder was under interrogation and was being forced to identify wanted Sikh radicals in the area. This was confirmed when a month after his arrest, the police took him to the village of Jagrup Singh Dhotiyan, also a known militant. Jagrup was arrested in the combing operation that followed, but one of his associates, also on the wanted list, escaped. As punishment, Kulwinder was badly tortured. Later, he was again seen by his former colleagues at Naushera Pannua. Kulwinder was unable to walk and his body showed signs of terrible torture.
Ajaib Singh pursued the case of his son relentlessly, although to no avail.
In early 1992, Punjab came under the Congress government with Beant Singh as the Chief Minister. Ajaib Singh again requested Raghunandan Lal Bhatia and Surinder Kairon, who had become a Member of Parliament, to help. But no one could ascertain Kulwinder's whereabouts.
Ajaib Singh wanted to know whether he was still being held for anti-insurgency operations, intensified under Beant Singh's regime, or had already been killed. Ajaib Singh met another Congress Member of Parliament Jagmit Singh Brar, who sometimes talked about the issues of justice to Punjab. Brar wrote to Union Home Minister Chahvan and, later in March 1993, personally met him to pursue the case. Ajaib Singh was also in Delhi to goad Brar into action. The Union Home Minister talked to Punjab's Director General of Police K. P. S. Gill who confirmed that Kulwinder Singh had been killed.
But there was no formal acknowledgement. The family never received the dead body, nor the mortal remains from the cremation, if it had taken place. The Sadar police station in Amritsar did not even bother to hide or destroy his Suzuki motorcycle No. PB02-C-4455, confiscated at the time of his illegal arrest. The motorcycle was openly used by its officers.
In 1996, Ajaib Singh engaged lawyer Ranjan Lakhanpal in Chandigarh to file a petition for a writ of habeas corpus - No. 324/1996 - before the Punjab and Haryana High Court. The petition was backed with the supportive affidavits of Manjit Singh, who had witnessed the arrest, and other eyewitnesses. The court issued notice. SHO Ajaib Singh, who had taken Kulwinder into custody on 20 December 91 became nervous about the possibility of his incrimination if the High Court ordered an inquiry.
The officer began to liaison with the family members for a settlement, offering to pay a substantial amount of money if they agreed to withdraw the petition. Ajaib Singh spurned the overtures with contempt. On 12 August 96, Sub-Inspector Gujinder Singh from the CIA staff office in Amritsar picked up Ajaib Singh and his two sons from their house and brought them to the B. R. Model School Interrogation Center. They were held in illegal detention for a day and threatened with elimination if they did not withdraw the petition from the High Court. They were released after Manjit Kaur sent telegrams to the higher authorities complaining about the illegal detention. Ajaib Singh also sent a letter about the illegal detention and the threat given to him at the CIA interrogation center to the Chief Justice of the Punjab and Haryana High Court. But no action followed.
Meanwhile, his second son Jagbir Singh had been employed by the Shiromani Gurdwara Prabandhak Committee (SGPC), as a dispatch clerk, on the recommendation of then President Gurcharan Singh Tohra. Jagbir worked in the head quarters housed within the Golden Temple Complex. Raghubir Singh was the temple's manager, an influential person within the SGPC who was also acquainted with Inspector Ajaib Singh. In March or April 1997, while the inquiry ordered by the High Court was still pending, Raghubir Singh called Jagbir into his office to make a proposal on the Inspector's behalf. He would pay one million rupees if his father agreed to withdraw the petition. Raghuvir Singh also threatened to transfer Jagbir to Jind, a small place in Haryana, if he failed in persuading his father to negotiate with the Inspector. Jagbir agreed to try. In the evening, he could not muster the courage to take up the proposal with his father. Next morning, he opened the topic by mentioning that Raghuvir Singh was harassing him. Ajaib Singh asked him to explain and remained silent for a while after Jagbir completed the narration of his conference with Raghuvir Singh. Ajaib Singh then asked if he wished to accept the proposal. Jagbir said no. Ajaib Singh repeated the question again and again, with Jagbir affirming no compromise. Raghubir Singh had proposed to pay one million rupees on the Inspector's behalf. Ajaib Singh was suddenly seething with anger: He would pay one million and a half to recover his son. If it was not feasible, the Inspector should never contact him again. That was his message to Raghubir Singh. He was confident that the High Court would do him justice.
In the beginning, the matter seemed to be moving in the right direction. At the time of crucial hearing, lawyer Ranjan Lakhanpal went away to America and Canada on invitation from the Sikh expatriate community to lecture on the human rights situation in Punjab. His junior was unable to attend the court proceedings. The judge had also changed. The petition was dismissed by the new judge S. P. Malte in October 96, on the ground of insufficient evidence to prove that his son had been abducted by the police. Returning from his foreign tour, Lakhanpal promised to take the matter to the Supreme Court which, in the meantime, had taken cognizance of illegal mass cremations of supposedly unidentified bodies conducted by the Punjab police. The Supreme Court referred the matter to the National Human Rights Commission for determination and of all the issues, after the Central Bureau of Investigation corroborated the allegations in its report submitted in December 1996. Ajaib Singh expected his case to come up before the Supreme Court, as Lakhanpal had promised. But nothing happened. For the next month or two, Ajaib Singh remained very distressed. Gurcharan Singh Tohra advised him to engage a Supreme Court lawyer in Delhi to file a fresh petition. Lawyer R. S. Sodhi demanded twenty-five thousand rupees, which he immediately paid up. For some time thereafter, Ajaib Singh remained eager with the impression that the hearing before the Supreme Court would soon commence. When it turned out that the court had not admitted the petition, he was crestfallen.
Soon, he started making fresh rounds of Chandigarh where he met the newly elected Akali Chief Minister Prakash Singh Badal. Before the elections, the Akali Dal had promised justice to all victims of human rights violations that had taken place over the last decade. Badal proposed to mark an inquiry about his case to the Police Inspector General of the Border Range. Ajaib Singh said that his son had been murdered by policemen who would not, therefore, allow the truth to come out. Badal then marked the inquiry to the Deputy Commissioner of Amritsar. This was in May 1997. The Deputy Commissioner recorded the statements of several witnesses, and closed the inquiry on 26 June.
It is not clear what happened thereafter, but on 4 July 97 Ajaib Singh returned home in a dejected state of mind. Apparently, he had found out that the inquiry report was not going to say anything conclusive. For the next couple of days, he did not talk to anyone and remained unusually calm. His wife Manjit Kaur tried to engage him in conversation, and to draw him out of his depression. She suggested that they sell a piece of their agricultural land to raise the resources to pursue their son's case in other ways. But Ajaib Singh remained silent.
On 7 July 97 morning, Ajaib Singh left the house after announcing that he was going to the Golden Temple, Darbar Sahib. Although the family members had been very troubled about his unusual silence, they did not see anything aberrant in his visiting the shrine. It was routine.
After doing the round of the temple's circumference and offering obeisance at the main sanctuary, Ajaib Singh sat down on the platform under the northern gate. One relative, who was also visiting the temple, saw him there scribbling something in his diary. The relative assumed that he was calculating or writing something concerning his business as a property dealer. Mota Singh, correspondent of Az Di Awaz, a daily newspaper published from Jalandhar, also saw him likewise engaged in writing something.
Ajaib Singh was composing his suicide note. Probably, he had already consumed poison, which he had somehow procured and taken along with him to the Golden Temple. After finishing the letter, Ajaib Singh walked into the premise of the Bank of Punjab, within the temple complex, whose manager Avtar Singh was his neighbor in Sahibzada Zujjar Singh Avenue. Ajaib Singh, who must already have been feeling the poison's effect, told him that he had swallowed powerful toxins and would not live long.
Avtar Singh probably could not grasp the seriousness of his situation and sent him home in his car. Ajaib Singh was vomiting and told his son Jagbir that he had taken poison with the intention to die because he could not bear the injustice any longer. Immediately, the family members rushed him to a hospital where the doctors, after examining him, said that he must be taken to the main Civil Hospital. Ajaib Singh was already dead when doctors at the civil hospital looked him up.
Lot of his sympathizers gathered for the cremation. Some police officials too approached Jagbir Singh to suggest that he should mention heart attack as the cause of his father's death. Otherwise, there will be consequences, they warned. But Jagbir Singh stated the truth and released his suicide note to the press. The national press blacked out the story. The following is my short translation of the suicide note. It is dated Monday, 7 July 1997 and it says:
"In this house of Guru Ram Das, I seek forgiveness from everyone whom I may have unwittingly hurt or wronged in anyway. Self-annihilation is the only way out of a tyranny that leaves no chance for justice. Tyrants like former SSP Ajit Singh Sandhu, who eliminated thousands of innocent Sikhs and also extorted millions of rupees, also sometimes commit suicide under the unbearable weight of their sins. It is known that Jaswant Singh Khalra had become Sandhu's victim for his human rights work.
My son Kulwinder Singh was picked up by SHO Ajaib Singh of Sadar police station in Amritsar. Neither had he committed a crime nor was he absconding from the police custody. Why did the SHO kill him then? I understand that the time and the place of one's death are predetermined. SHO Ajaib Singh got promoted to the rank of Deputy Superintendent of Police for eliminating hundreds of young Sikhs. As an officer, he extorted millions of rupees from the people whom he held at his mercy.
My grudge is that no one even confirmed my son's death. I did not even receive his ashes. Otherwise, I would not have gone to the High Court for justice, which I never received. I approached Chief Minister Prakash Singh Badal. Some people rightly say that he is not a fit person to rule Punjab. I had approached him for justice. He marked the case to the Deputy Commissioner of Amritsar for inquiry. Badal should find out if he had conducted a fair inquiry. I believe DSP Ajaib Singh gave him a handsome amount of money to muddle it up.
I pray to Guru Ram Das to send me where my son is. I hope my prayers would be answered. Once again I apologize to the residents of my colony, my village Othian and Gumtala for any inconvenience I may have caused them. I am not in anyone's financial debt. Nevertheless, I authorize DSP Davinder Singh to sell my land to settle any claim of liability that may arise. I am grateful for the support I have received from Manjit Singh, Sarpanch of Raja Sansi, DSP Davinder Singh and Bibi Paramjit Kaur Khalra. I wish to be cremated near the Martyr's Shrine, Gurudwara Shahindan. I do not wish any rituals, except the recitation of the Guru Granth, to follow my death. If my family wants to offer any service, it should be made to the charitable organization of Pingalwara.
Now the ink in my pen and also my time in this world are running to their end.
Wahe Guruji ka Khalsa, Waheguru ji ki Fateh!

THE ORDEAL OF SURVIVAL:
Jagbir Singh, with whom I talked at length for the first time in September 97 to understand the train of events that crushed his father's life, is still working for the SGPC. I was struck by the extraordinary melancholy and his obsession with his father's tragic destiny, which seemed to be eating into his very soul. Jagbir would be there whenever I went to Amritsar, with his bundle of papers about the lost court cases, newspaper clippings and photographs of his father and disappeared brother. He would also present himself at every press conference or public meeting organized by any human rights organization anywhere in Punjab. Alas, he would not be the only one around with a tale of tragedy and impossible redress. After his father's suicide, Maminderpal Singh could not carry on with his medical practice in his village, as his mother wanted to live in Amritsar to look after her widowed daughter-in-law and grand-children. Maminderpal is now also employed by the SGPC and lives in Amritsar. Kulwinder Singh's thirty-six years old widow Rajbir Kaur smothers her own grief in bringing up her two daughters Amrita Preetam Kaur and Amanjot Kaur, twelve and ten, and a seven years old son Ranjodh Singh who, although conscious of an all-permeating sense of calamity, do not yet know what exactly happened to their father.
Kulwinder Singh's enforced disappearance, life-exhausting and fruitless pursuit of accountability and justice by his family, suicide by his psychologically broken father, the trauma and the ruin of the surviving members - none of these are unique to this particular Incident-Report. Punjab's countryside is dotted with myriad other examples of people who became victims of India's war against the Sikh separatist threat. But, unlike Kulwinder, most victims are to be found among the poor, the uneducated and the powerless, who cannot afford the mechanical, grinding legal process, whom the elite across the lines of political divide does not mind seeing destroyed.

ABORTION OF A PEACE ACCORD:
As we earlier observed, in October 1987 the Union government dismissed the elected Akali government in Punjab on the ground that it had failed to safeguard the Hindu interests in the State against the Sikh militant attacks. The government under Chief Minister Surjit Singh Barnala had been formed in September 1985 when the Akali Dal, representing the spirit of the Accord which the India's Prime Minister Rajiv Gandhi and the President of the Akali Dal Harcharan Singh Longowal had signed in 24 July 85, won 72 out of 117 seats in the elections to the State Legislative Assembly. The Sikh militants had already assassinated Longowal for compromising with a central government guilty of destroying the Golden Temple and of conniving in the Delhi massacre of November 84. But the Akali Dal under Barnala stood by the terms of the Accord, which promised to "usher in an era of amity, goodwill and cooperation" between the Sikhs and the Center. The Accord delineated eleven points of common consent, making the following main concessions:
(a) It promised to transfer Chandigarh to Punjab by 26 January 1986, (b) to set up tribunals presided by Supreme Court judges to adjudicate the river water and territorial disputes and, (c) to refer the Akali resolution for provincial autonomy to a Commission appointed to recommend changes in the "Center-State relationship to bring out the true federal characteristics of our unitary constitution". The Accord also promised inquiry into the Delhi killings of November 1984, to withdraw the Armed Forces Special Powers Act, and to restore the rule of law and human rights in Punjab.
In the event, the Central government flouted the Accord in toto. Chandigarh was not transferred to Punjab as promised. The Commissions on the river waters and territorial disputes were scuttled. Guilty for the November 1984 massacre in Delhi remained unpunished. On 26 January 86, a large congregation of Sikhs had gathered under the leadership of Bhindranwale's followers at the site of the demolished Akal Takht to review the political developments in the State. Four days earlier, the court that had been trying the case of Indira Gandhi's assassination handed out its judgement sentencing all the accused to death by hanging. On the day of the event, the newspapers headlined that the government had shelved the main part of Longowal's accord with Rajiv Gandhi, the promise to transfer Chandigarh to Punjab before 26 January 1986. These news reports, read out from the stage to thirty thousand participants, carried home the point that India would not make the smallest concession to the Sikhs. This helped the militants, who had been isolated in the last elections.
The political resolution adopted by the congregation said that if the assassins of Indira Gandhi are hanged, they would become the first martyrs of Khalistan. The congregation also appointed a five-member panel called the Panthic Committee to guide the Sikh struggle to its goals, which the incumbent Akali government had betrayed. A repeat of the congregation, called Sarbat Khalsa, held on 13 April 1986, adopted a political resolution that asked the Sikhs to break the shackles of slavery to India. A fortnight later, the Panthic Committee declared the "formation of Khalistan", also creating its own army called Khalistan Commando Force that would fight for the objective. The next day, the government of Punjab had to send the troops to the Golden Temple to flush out the separatists. But the members of the Panthic Committee had already disappeared. The symbolic raid, however, helped the militant cause by precipitating a split in the government of the Akali Dal. An influential section of the party, with 27 members of the Legislative Assembly, broke away from the government to form a separate group. The four most important leaders of the Akali Dal - Tohra, Badal, Sukhjinder Singh and Amrinder Singh - had left the government over this issue.

Undercover operations: Construction of the labyrinth:
Publicity of militant crimes was very helpful to the government, which needed public sanction to introduce new measures of repression in Punjab. An investigative report in the Indian Post of Bombay of 24 April 1988 indicated that sophisticated weapons allegedly used by the terrorists in some sensational attacks might in fact have been planted by the government agencies themselves. According to the story by Dhiren Bhagat, who has since died in a mysterious road accident, the Research and Analysis Wing (RAW), a counter espionage outfit created by Indira Gandhi, had been directly involved in illegally smuggling weapons from Afghanistan, conveying them onwards to Punjab to contrive terrorist outrages with the intention to sustain the anti-Sikh hysteria in the country.
Others involved in the Punjab scene made even more direct allegations against the high ups. One prominent person to make such an allegation was Acharya Sushil Muni, a Jain monk, who had been holding dialogues with the Sikh religious leaders and militant organizations for a solution to the Punjab problem. Sushil Muni gave an interview to a fortnightly magazine India Today about his peace mission, which he claimed had the personal backing of Rajiv Gandhi. The interview was published on 30 April 1988. Sushil Muni claimed that he had been able to persuade the militants to sign an accord by which they would have surrendered arms, following a declaration of amnesty. But the government backed out of the commitment after he succeeded in making this extraordinary breakthrough. Sushil Muni alleged that those "who stand to gain by keeping Punjab on the brink of terrorism" had scuttled the negotiations. He also accused the "vested interests" of getting his associate in the peace process, T. S. Riyasati, a former Minister, murdered. He posed the question: "Who could be responsible for acts of violence when the major extremist organizations were all condemning them?" Sushil Muni added: "You must notice that during the earlier terrorist killings there was no TV coverage. But look how quickly TV crews now reach the scene of the massacre and telecast them in detail all over India."
More startling revelations came from Sampat Singh, Home Minister of Haryana, the only State in northern India ruled by a non-Congress party since December 87. Speaking to the press on 25 April 1989, the Home Minister of Haryana claimed evidence to show that the Union Home Minister and the Agricultural Minister patronized some groups of killers in Punjab. He promised to furnish complete evidence if the Prime Minister cared to institute an inquiry.
My own researches in Punjab of that period suggested that the State agencies were creating vigilante outfits with the view to infiltrate and break the ranks of real radicals. They also benefited by engineering heinous crimes, attributed to Sikh militants, which inspired moral revulsion against the separatist struggle. I had a discussion on the subject with Bhan Singh, the Secretary of the SGPC who had been managing the affairs of once powerful Sikh religious organization for over a decade. I talked to Bhan Singh a week before he was killed reportedly by separatist militants on 25 July 1988. After the Army action against the Golden Temple in June 1984, Bhan Singh's main responsibility had been to look after the personal welfare and legal defense of people who had been arrested from the temple complex and were being held in a Rajasthan jail without trial. Bhan Singh had his office inside the Golden Temple complex and was able to closely observe the developments inside the shrine. He believed that just as Bhindranwale, in his initial days, had been encouraged by the Congress party, so also the Congress government in Delhi was condoning the new breed of militants entrenched inside the Golden Temple with the view to weaken the Akali Dal's political base. He pointed out that given the tight security around the Golden Temple, it was inconceivable that any one should be able to bring large dumps of arms inside without official complicity. I asked him if in his opinion there were no genuine militants in Punjab. Bhan Singh gave the following answer:
"Genuine militants are not entrenched within the Golden Temple. They won't lurk behind its sanctity to save their skins temporarily while inviting its repeated desecration by the government forces. They fight their battles out in the open."
I asked if the government agencies were responsible for all heinous crimes attributed to the separatist militants. Bhan Singh said, with good sense, that there must be just as many anti-social elements involved in crime as there had been before the start of the political crisis. But the government was manipulating the media to attribute all crimes to separatist militants. This was helping the government to generate a public reaction, which it used to deny justice to the Sikhs.
Kripal Singh, a Member of Parliament from Amritsar for many terms and the President of the Chief Khalsa Dewan (a prestigious organization from the days of Sikh renaissance in early 20th century), corroborated these views. Kripal Singh told me that the government agencies had been creating many armed vigilante groups out of anti-social riff-raff, so as to infiltrate and neutralize genuine militant outfits. But these government hirelings usually reverted to their habits of compulsive criminality and often ended up fighting their personal enemies. The outrages they committed were routinely blamed on the separatist groups.
Gurdayal Singh, who had retired as the Inspector General of Police for Punjab in April 1966, provided the clinching evidence. He was Lahore's Superintendent of Police before India's partition in 1947. As the Deputy Inspector General (Intelligence) from 1952 to 1956 he had closely followed the movement for the creation of a Punjabi speaking State. One of his main tasks was to neutralize the Communist insurgency in parts of Punjab, which had been led by Teja Singh Swatantra in the years between 1950 and 1960. Because of his reputation as an officer who had successfully handled many explosive situations, the rulers of Punjab still consulted him on how to deal with the separatist violence. Governor of Punjab Sidhartha Shankar Ray and his Police Chief Julio Ribeiro had deliberated with him on their plans to create armed groups that would take on the militant menace without involving the State apparatus directly. Gurdayal Singh advised them not to pursue these plans as, in his opinion, unscrupulous elements would thrive under official patronage.
Apparently, Ray and Ribeiro went ahead with their undercover operations, using informers and infiltrators from the underworld. Ribeiro concedes this in his book "Bullet for Bullet", which he authored after his retirement. Ribeiro writes with extraordinary candor: "In Punjab there were some persons with criminal propensities, who were known to police officers at various levels. They were approached and a few of them agreed to form groups which would move in the guise of terrorists and confront the real militants in their dens… The police did give them financial and logistical support, but their demands grew to an extent where it was impossible to satisfy them within our resources. Besides, they were very greedy people, with a criminal tendency, who began to prey on law-abiding, rich citizens on the assumption that the police were indebted to them and so would do nothing to stop them."
One such particular man, recommended to Ribeiro by Gur Iqbal Singh Bhullar, a senior police officer, was a smuggler who had once been a police constable. He was reinstated and located in Patiala to search out and neutralize dreaded militants, with the permission to use force. Once he drove into Ribeiro's official residence to escape the Chandigarh police, who chased him after he killed two supposed terrorists on the main road of the city. Ribeiro later found out that this operative committed a robbery in Jammu, with the policemen in his squad participating. The Director General of Police was still contemplating action, when the operative managed to shoot down both the SSP and the SP of Patiala whose security officer then shot him down.
In his book, Ribeiro mentions several other undercover operations, planned by Amritsar SSP Izhar Alam and other officers. The book also narrates how KPS Gill, then Inspector General of the Central Reserve Police Force (CRPF), thwarted all his attempts to discipline his men who had committed atrocities, by pleading with the Union Home Ministry not to sanction their prosecution. Later, Gill replaced Ribeiro by persuading the Governor and the leaders in Delhi that he alone was capable of "the harder line of action that was required to put down the terrorists."
Ribeiro himself is known to have publicly first propounded the policy of "bullet for bullet", as reported in the Hindustan Times of 11 April 1986. He later denied it, though: According to him, it was Arun Nehru, then Union Minister of State for Internal Security, who put these words in the mouth of the correspondent. Be that as it may, dismissal of Barnala's government in October 1987 was preceded by a significant public exchange in which some Akali ministers accused Ribeiro of upholding an extra-judicial approach in handling the separatist militancy. The DGP had alleged that the elected ministers and legislators were offering support and shelter to militants. Ribeiro himself was convinced that the President's Rule was imposed on Punjab because, "the Haryana elections were to be held some time towards the end of May, and the government at the Center wished to show the Hindu majority that it was opposed to the soft-pedalling vis-à-vis the Sikh terrorist activities, favored by the Akalis. Bhajan Lal, the Haryana Congress Chief Minister, Ray and Sardar Buta Singh, the Union Home Minister, all felt that the Congress's electoral prospect would improve if the Center was projected as being very firm." Referring to an interview which Barnala gave to the Times of India on 11 May 87, Ribeiro mentions that the Congress had lost the West Bengal and Kerala elections, and so the stakes in Haryana were very high.

The Legislative Apparatus of Counterinsurgency:
In the event, the Congress did lose the elections in Haryana. Meanwhile, the situation in Punjab was witnessing a runaway deterioration, with a steep increase in the daily reports of Sikh extremist outrages and summary executions by the security forces. In March 1988, the Indian parliament passed the 59th Amendment of the Constitution which enabled the central government to extend the President's rule in the State beyond one year; to impose emergency on the ground of "internal disturbance" and to suspend Article 21 of the Constitution which guaranteed that no person shall be deprived of life and liberty except according to the procedure established by law.
The Union government dragooned this unheard-of constitutional amendment through parliament, despite all the special legislation already at its disposal (which legislation, be it said in passing, not only conflicted with the elemental principles of due process, but also eliminated the existing legal safeguards of free and fair trial).
The legislation already in force included the Terrorist and Disruptive Activities (Prevention) Act, which provided death sentence for terrorist actions resulting in death and the minimum term of five years in imprisonment extendable to life for other offences. Section 21 of TADA commanded the presumption of guilt against the accused. Its definition of "abetment" in section 2(1)(a) eliminated the proof of criminal intention. The section 15 of TADA allowed a police officer of the Superintendent's rank to record confessions of the accused in custody and to use them as evidence against them. Preclusion of anticipatory bail by 20(7) of TADA destroyed the protection, which the section 438 of the Code of Criminal Procedure offers to the innocent against manifest abuse of police power. Section 20(4)(b) of TADA allowed sixty days of police custody of an accused under interrogation, and one year of judicial remand without bail. Section 20(8) prohibited bail even when the prosecution failed to furnish a charge sheet after ninety days of arrest. The section said that no person accused of an offence under TADA would be released on bail unless the designated court was satisfied on "reasonable grounds" that "he is not guilty of such offence and that he is not likely to commit any offence while on bail." The Act did not explain how the accused should adduce the evidence of his innocence in the absence of a charge sheet, or how the judge should authenticate his guiltlessness ahead of the actual trial, and go on to certify that he would not "commit any offence while on bail." TADA cases were heard in special courts by executive magistrates who were appointed centrally. The hearings were held in camera, and could be held in locations far removed from the disturbed area itself. In March 1994, the Supreme Court of India upheld the validity of TADA.
Apart from TADA and the Terrorist Affected Areas (Special Courts) Act, 1984, there were also other black laws like the National Security Act, 1980, as amended by the Act 24 of 1984 specifically with the reference to "the extremist and terrorist elements in the disturbed areas of Punjab and Chandigarh". The Act provided for detention without charge or trial for one year in all parts of India, and two years in Punjab. Also in force was the Armed Forces (Punjab and Chandigarh) Special Powers Act, which empowered the security forces to enter and search any premises, and to arrest any person without 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. If the officers of the Punjab police failed in bringing terrorists to book, in spite of TADA and other draconian legislation, their obsession with extra-judicial activities to the negation of arduous and lustreless tasks of regular police work, must squarely take the blame.

Early investigations and the first reports on State atrocities:
From early 1988, when reports of police atrocities amidst the escalation of the Sikh separatist violence became regular part of the news from Punjab, I as a member of the Committee for Information and Initiative on Punjab began to travel in the State to investigate. During these travels, I came in close contact with many who had suffered illegal detention, interrogation under torture and other atrocities. The cases in which there were witnesses to illegal arrests and custodial torture before the police announced their deaths in encounters were rare in comparison to others in which persons were whisked away by unidentified men, appearing out of the blue, in vehicles without number plates, to be taken to undisclosed places for interrogation, and to disappear for ever. I documented dozens of such cases. Rarely in some instances, the disappeared returned from the "dragon's belly". Some of them survived when the High Court of Punjab and Haryana or the Supreme Court of India issued directions for their production. I became directly involved several such cases. I also got involved with the case of Avtar Singh Sidhu, a leader of the Youth Akali Dal from Muktsar, which brought us in first direct confrontation with K. P. S. Gill, then Director General of Punjab Police. Sidhu had been helpful in gathering information on several cases of faked encounters in his region. On 30 September 1988, the police raided his house and a shop of pesticides owned by him in Muktsar. Sidhu was not present at either place. Many of his relatives including his younger brother were taken into custody to force him to surrender. On 14 October 1988, Sidhu surrendered himself to the custody of K. P. S. Gill at the latter's residence in Chandigarh, in the presence of Amrinder Singh, scion of the Patiala royalty. When three weeks later Sidhu had still not been produced before a magistrate, I and two other members of the Committee went to Faridkot and requested the Senior Superintendent of Police to grant an interview with the detainee. The SSP admitted to Sidhu's detention, but expressed inability to grant our request since the DGP himself was handling the case. We then approached the DGP at Chandigarh. Gill took our application and promising to respond to the request for interview in due course, chided us for "disturbing him at odd hours on unimportant issues". We also gave the particulars of the case to the Secretary of the Punjab's Governor who assured us that he would place them before the Governor. Sidhu was released on 30 November 1988, and he gave us a long interview on his ordeals.
I also came across several examples of purely bestial abuse of police powers, against the absolutely innocent and the meek. In one case, the police officer in-charge of a post at village Bham in Batala subdivision of Gurdaspur district, kidnapped two teenage girls Salvinder Kaur and Sarabjit Kaur in front of eye-witnesses in his official jeep. The officer in-charge of police station in HarGobindpur denied their custody. Four days later, their naked distended bodies were recovered from a nearby canal. Officers of HarGobindpur police station tried to pressurise the parents to sign a declaration that the bodies were unidentified and unclaimed, and were threatened that they would be eliminated in an "encounter" if they disobeyed. But the Sub-divisional Magistrate of Batala interfered and had the bodies handed over to the parents for cremation. One month later, the Senior Superintendent of Police of the district told a newspaper that the policeman alleged to have kidnapped the girls was actually having an affair with one of them. The policeman was later arrested on charges of kidnapping, rape and murder to be soon released on bail, as the prosecution did not file a charge-sheet against him within the stipulated period of three months.
I also came across examples of the police terrorising the whole villages in the border districts known to be militants' strongholds. Unable to distinguish silent sympathisers from active militants, the security forces were using collective humiliation and intimidation to wean them away from their political sympathies. In reality, these methods were only adding to their alienation the thrust of hatred.
The testimonies of victims of police powers, which I recorded, not only established systematic violation of the domestic and international guarantees on inalienable human rights, they also gave the lie to the grand narrative of Indian officials and their sympathisers, who were straining to portray the situation in Punjab as a war between the patriotic forces and anti-national mercenaries. The evidence collected by me discredited their claims that the government agencies represented the forces of social order, justice and legitimacy. I failed to recognise anything noble in the picture of police operations that was emerging from the collected evidence. Although some of the cases documented by me might have involved genuine extremists, I gained the impression that, for the most part, the sufferers were primarily victims of arbitrariness - of a police force that had gone haywire.
These investigations constituted the basis for detailed case studies of human rights violations, which the Committee for Information and Initiative on Punjab then published and circulated in the hope that testimonies of victims might persuade the public - those at least whose ears weren't stopped - that the 'war without quarter' would destroy the very basis of the nation in whose name it was being waged. The bulk of these early reports also form part of my book, published in 1991 under the title, "The Sikh Struggle: Origin, evolution and present phase".

Political consensus on State terrorism:
As we observed earlier, violence in Punjab escalated at a runaway pace after the dismissal of Barnala government. Large number of criminal elements, who passed for militants, had occupied the rooms inside the circumference of the Golden Temple. They summoned prosperous citizens to their rooms and made them cough up large amounts of money. They were also killing the recalcitrant, burying the bodies under the rubble of the Akal Takht. The government mounted a new Operation in May 1988 to displace these bandits from the holy shrine. With Amritsar under curfew, the commandos of the National Security Guard, equipped with sniper rifles and night vision equipment, shot down more than thirty entrenched militants over the next week. Baba Uttam Singh of Khadur Sahib, a friend of the Union Home Minister, appeared on the side of the security forces to direct his followers to surrender. On 15 May, 150 of them gave up; three days later the remaining forty-eight. But the Inspector General Chaman Lal told the press that the committed militant groups had not taken shelter inside the temple. Although the Operation purveyed some strategic gains to the government, including good publicity, it had no effect on controlling the militant outrages.
Meanwhile, Simranjit Singh Mann, former police officer, arrested on charges of sedition, was emerging as the new star on the horizon of the Sikh politics. As Faridkot's SSP, Mann had been close to Bhindranwale. The government found out about his link and transferred him to Bombay. He would have been dismissed from the service if Amrinder Singh, the scion of Patiala royality, had not interceded in Mann's favor. Mann and Amrinder Singh are close relatives, their wives being sisters. After Operation Blue Star, Mann wrote a strong emotional letter to President Zail Singh. In the letter, he upbraided the President for not resigning, after the Indian army, under his supreme command, had destroyed the Akal Takht. The letter became public and Mann was dismissed from the service. He went underground and was arrested in November 84 while trying to cross the border into Nepal, ostensibly to organize the Sikh resistance from abroad. Later, he was also charged of conspiring to assassinate Indira Gandhi. His defiance of the government made him very popular with the Sikhs. Mann had already been nominated as the President of the United Akali Dal, an outfit launched by Bhindranwale's old father who had been pushed by the extremists to become the pivot of a new political allignment. When the government announced parliamentary elections for the end of 1989, Mann declared his candidacy from Tarn Taran constituency, although he was still a prisoner. He also fielded his candidates from eight parliamentary constituencies in Punjab. The results belied the predictions of the political pundits that the division in the Sikh vote would benefit the Congress Party. The group under Mann swept the polls by bagging six out of thirteen parliamentary seats in Punjab. Four additional constituencies elected independent candidates who had received his blessings. Mann himself created a record in his constituency by polling 527, 707 out of the total of 591,883 valid votes cast.
The Congress Party lost the elections at the national level to the Janata Dal, a new formation under V. P. Singh who had resigned his position as the Finance Minister under Rajiv Gandhi to accuse the latter of gargantuan corruption in arms deals. The manifesto of the Janata Dal had promised to end the abuse of civil liberties in Punjab, and to solve the unrest in the State through dialogue in a democratic spirit. Returning from prison to Punjab in his new role as a political leader, Mann promised to strive for the fulfilment of Sikhs' aspirations by adopting the Constitutional means. Speaking to the massive crowd that gathered to welcome him in Punjab on 3 December 89, Mann said: "First we would try out the constitutional ways to get the demands of the Sikhs fulfilled… If the government fails to satisfy the Sikhs, we shall follow a path according to our nation's consensus". According to the newspaper reports, there was no trace of either bitterness or hubris in his meek voice. After consulting all the organisations involved in the struggle, Mann set out five preconditions for the central government to fulfil before they could discuss more substantial political questions. They were:
(1) It should express repentance and seek forgiveness for the army assault on the Golden Temple. (2) It should adopt a condolence motion in both the Houses of Parliament to commemorate those Sikhs who had been killed during the November 84 riots, and take steps to punish those who had orchestrated the anti-Sikh mayhem. (3) It should release from prisons and reinstate those Sikh soldiers who had revolted in the wake of the Operation Blue Star. (4) It should register criminal proceedings against the officials in Punjab including Governor Ray, his police advisor Julio Ribeiro and DGP K. P. S. Gill who excelled all in the policy of blind repression. (5) It should repeal the black laws which violated the fundamental rights of citizens and withdraw from Punjab the paramilitary forces occupying the State.
For a government that had promised justice and restoration of democracy, these conditions should have been agreeable. But the new government, whose Prime Minister staged a theatrical drive through the crowded lanes of Amritsar in an open jeep and proclaimed that "a new era has begun", decided not to come under pressure by accepting their preconditions for a "dialogue". The most bizarre of all was the decision of the government to hold consultations with those moderate groups of the Akalis who had been routed in the elections. These leaders like Prakash Singh Badal and Surjit Singh Barnala advised the central government not to hold elections to the State Assembly as they feared an abrupt end to their own political careers in the new climate. The Janata Dal government not only decided to withhold the Assembly elections, thereby thwarting the process of democracy, but also to retain those police officials who had earned notoriety for human rights violations. "Improving law and order", euphemism for continuation of the police Raj, remained the guiding principle of the new government's policy. This combining with the media build-up that portrayed the new Sikh team as a bunch of fanatics destroyed whatever chance there may have been in resolving the conflict through a rational process of give and take.
Mann could not establish a rapport with the new government, even as the situation in Punjab became increasingly anarchical. On 21 December 89, the security personnel at the Parliament House refused permission to a newly elected Sikh member Dhyan Singh Mand to enter the House along with his sword. Mand refused to take the oath of his membership without it. Mann himself declined to enter Parliament unless the government allowed the newly elected members to carry their swords within the House.

BULLETS AGAINST THE BALLOT:
The government of V. P. Singh fell in November 1990, through defections engineered by his own Party's President, Chandrashekhar. The Congress Party under Rajiv Gandhi installed him as the Prime Minister by supporting his breakaway group of 54 in the House of 542. The Congress withdrew the support in March 1991, forcing fresh polls to elect a new parliament. Chandrashekhar had been hobnobbing with the Sikh militant organizations with the hope to solve a difficult problem, to show as an achievement for his term as the Prime Minister of India. Chandrashekhar decided to hold simultaneous elections to Parliament and the State Assembly in Punjab, a decision that all other national parties vociferously opposed.
Most of the Sikh militant organizations themselves called for a boycott of the elections. The terrorists gunned down candidate after candidate, even as 80,000 paramilitary personnel and eventually the army drove around in their armored vehicles. More than 20 candidates fell to the terrorist bullets as the period of campaigning drew to an end. Chandrashekar's Home Minister, a candidate for parliament from Ludhiana, providentially escaped an attempt on his life. Rajiv Gandhi, visiting Chandigarh on 14 May, promised to cancel the polls in Punjab if his party got elected to Parliament with a majority. The Congress was returned as the single largest party in parliament, although Rajiv Gandhi himself was killed by a woman member of LTTE, a Tamil separatist guerilla group in Sri Lanka. Narsimha Rao of the Congress Party became the Prime Minister and instructed the Election Commission to cancel the polls in Punjab. KPS Gill, whom Chandrashekhar had shifted to Delhi as the Chief of the CRPF, returned to Punjab once again as the Director General of Police.
Since the dismissal of Barnala's government in Punjab, the Union government had changed party hands three times. However, these changes made no difference either to the government's political approach in regard to the problem of unrest in Punjab or to the basic patterns of police functioning in the State. From the very beginning, political elements within the government are known to have hobnobbed with one militant faction or the other. However, there never was any attempt to initiate discussions with the extremist groups on the basis of concrete issues which constituted the hard-core of Sikh discontent. All overtures and contacts were always essentially mercenary in nature, based on calculations of short-term political advantages and negativating the prospects of transparent deliberations on the merits of the issues involved.

POLL BOYCOTT: ENGINEERING OF A MANDATE:
In November 1991, Punjab came under the Disturbed Areas Act, which gave the security forces extensive powers to search, detain and interrogate anyone without judicial warrants. Along with these steps, the central government announced that the elections to parliament and the State Assembly for Punjab would be held in the first quarter of 1992. A meeting of all the major Akali Sikh groups held on 4 January 1992, decided to boycott the elections. The government reported 28 per cent of polling. The turnout in the urban areas was between 25 and 40 per cent. In the rural constituencies it was between 5 and 20 per cent. The results declared on 20 February, returned the Congress with a two-thirds majority in the State Assembly. Beant Singh, who had been dismissed from the Ministry of Darbara Singh in 1983 on the charge of having instigated a faked encounter, formed a Congress ministry as the new Chief Minister of Punjab.

SILENCING THE HUMAN RIGHTS GROUPS:
The state government projected its 'success at the hustings' - a pradicatable consequence of the poll-boycott by the main Akali groups - as the democratic mandate, which it had received to stamp out the Sikh separatist militancy by whatever means. Several human rights groups in Punjab, although disorganised and faction-ridden, had been embarrassing the government by publicising police excesses. The government under Chief Minister Beant Singh decided it had to silence these groups before tackling the larger problems of militancy in Punjab's countryside.
Ram Singh Biling, a reporter with the Punjabi daily newspaper Ajit and the Secretary of Punjab Human Rights Organisation for his home district of Sangrur, was picked up and unceremoniously executed soon after the Congress government took office. Then came the turn of Ajit Singh Bains, retired judge of the Punjab and Haryana High Court and Chairman of the Punjab Human Rights Organization. His illegal arrest in April 1992 was not acknowledged for two days. Bains was manhandled, abused and publicly exhibited in handcuffs. Later, his arrest was formalised under TADA. The accusation was that Bains had taken part in a secret meeting of militant leaders, held at Anandpur on March 18, where they hatched a conspiracy to carry out "terrorist actions". An inquiry later ordered by the High Court of Punjab established that Ajit Singh Bains' name did not figure in the original First Information Report about the "illegal meeting". However, the idea of arresting Bains was not to secure his conviction under the law, but to paralyse PHRO, and to demoralise other human rights groups with the example. Chief Minister Beant Singh told the State Legislative Assembly on April 6 that his government would not release Bains because his organisation was engaged "in defending terrorists".
A human rights lawyer, Jagwinder Singh, was picked up from his house in Kapurthala by a group of uniformed policemen on 25 September 1992 evening. Although the Chief Minister and the Chief Secretary promised to intervene, Jagwinder Singh never returned.
On 18 May 1992, Amritsar police picked up Param Satinderjit Singh, a student of Guru Nanak Dev University, from the university campus. He was forced to identify suspected sympathisers of the separatist cause within the university, who were also picked up. The police brought Param Satinderjit Singh to the university campus several times for this purpose. The university students held a demonstration to protest against the abduction, and his father went on a hunger strike. But Param Satinderjit Singh was not released. There was no trace of him thereafter.
Punjab government kept up the pressure on the PHRO by arresting Malwinder Singh Malli, General Secretary of the organisation, in August 1992. Malli was also the editor of "Paigam", a vernacular journal affiliated to a Marxist-Leninist group, whose work in the field had led to several exhaustive reports on police atrocities. Elimination of Ram Singh Biling and Jagwinder Singh, and arrests of Ajit Singh Bains and Malwinder Singh Malli effectively paralysed the regional human rights groups. Now the security forces could give undivided attention to eliminate the ring-leaders of the separatist militancy.

DECIMATION OF THE GUERILLA GROUPS:
The Sikhs of Punjab had never clearly understood the rationale of the militants' objectives. These groups in their hay-day had generally relied on atavistic sympathies in the preasantry to find hideouts and had received enough support to keep up their operations. But now, with the rural Sikhs in total dismay over the new state of affairs, militants found themselves helpless against the security forces, which began to hunt them down like fair game. Thus, within six months of assuming office, the government of Beant Singh was able to break the backbone of the Sikh militant movement. Main leaders of guerrilla outfits were either killed, or compelled to flee the scene. Hundreds of them also surrendered. Thousands of others suffered torture in custody, long periods of illegal imprisonment and myriad other forms of physical and psychological torment. I have exhaustively documented the historical context of the Sikh separatist violence, its political and psychological aspects and its irrationality in my second book on Punjab, published by Ajanta Books International in 1997 under the title: "The Sikh Unrest and the Indian State: Politics, Personalities and Historical retrospective."

THE WAR WITHOUT QUARTER:
Following the decimation of the guerrilla groups under Beant Singh's government in Punjab, the cleansing the countryside of militant sympathisers apparently became the next main task of the security forces in the State. According to the police figures, published in 1993, security forces in Punjab killed 2,119 militants in the year 1992 under the euphemism of "encounters". A larger number of people in the border districts, picked up by the police for interrogation, simply "disappeared". Evidence that later surfaced showed that the "disappeared" were killed and their bodies quietly disposed of. First there appeared reports that Punjab's irrigation canals had become the dumping ground for bodies of killed militants and their sympathisers. Reports carried by the Pioneer on 26 and 27 March 1992 said that the government of Rajasthan had formally complained to Punjab's Chief Secretary that these canals were carrying large number of dead bodies into the State. The newspaper reports also said that many dead bodies, with hands and feet tied together, were being fished out when water in-flow in canals was stopped for repair works.

EVIDENCE OF MASS CREMATIONS:
Jaswant Singh Khalra from Amritsar, then General Secretary of Shiromani Akali Dal's Human Rights Wing, produced more incriminating evidence in the form of official records from the cremation grounds of Amritsar, Patti and Tarn Taran for the year 1992. These records showed that the police had burnt more than 1400 bodies in these three cremation grounds alone by stating that they were unclaimed or unidentified. Khalra himself had to become an unidentified body before the Supreme Court would take note of the matter and order the Central Bureau of Investigation to undertake a comprehensive inquiry. While alive, all his endeavors and years of campaigning for accountability and justice had met with institutional disdain, public ridicule - and finally death in the oblivion of enforced disappearance. When Khalra went with his records to the Punjab and Haryana High Court through a Writ Petition No. 990 of 1995 to ask for an independent investigation, the court dismissed it in limine with the remarks that it was "too vague" and that the petitioner had no locus standi in the matter.

FURTHER INVESTIGATIONS:
Following the dismissal, I, along with Khalra, traveled extensively in the region of Amritsar to investigate his claims. Examination of cremation records from the office of the Registrar of Births and Deaths showed that three hundred bodies were cremated as unidentified/ unclaimed in 1992 alone at the Durgiana mandir cremation grounds even though in the case of one hundred and twelve the names had actually been recorded. Forty-one were shown as having died of bullet injuries. A firewood purchase register maintained at the Patti municipal cremation grounds showed that five hundred and thirty-eight bodies were cremated as unidentified/ unclaimed between 1991 and 1994. After examining these records, I talked to attendants of the cremation grounds, the doctors who had conducted post-mortems and also the relatives of victims who furnished the necessary evidence to establish linkages between the disappearances and illegal cremations. Two attendants of the cremation ground at Patti told me that the police would often buy firewood for the cremation of one or two persons but would cremate several bodies together on a single pyre. The Chief Medical Officer of the Civil Hospital at Patti confessed that a post-mortem was completed in less than five minutes: The whole procedure had been simplified to the extent that it meant no more than filling a paper that announced the cause of death and the time of death, with the policemen providing the information. He also gave me gruesome details of Sarabjit Singh's post-mortem. On 30 October 1993, a dead body, supposedly that of Sarabjit Singh, was brought to Patti hospital by the officers of Valtoha police station in Amritsar district for post-mortem. The doctor who was to carry out the autopsy discovered that the man who had a bullet injury on his head was still breathing. Thereupon, Valtoha police officers insisted on taking him away. After some time, they brought him back, now dead for good, and forced a different doctor to fill-in an autopsy report. Although a nurse in the hospital was able to identify Sarabjit Singh, and also knew where his parents lived, the police officers took away the body for a hasty cremation. I was also able to interview many serving police officers who, on the condition of anonymity, provided detailed narratives which explained abductions, custodial torture, summary executions and illegal cremations as aspects of a strategy to weed out the Sikh separatist militancy from the roots

THE CASE BEFORE THE SUPREME COURT:
On the basis of these investigations, Delhi based Committee for Information and Initiative on Punjab, of which I am a member, invoked Articles 32, 21, 19 and 14 to move the Supreme Court of India through a Writ Petition (Crl.) No. 447/95, filed on 3 April 1995. The petition backed with the records of illegal cremations at Durgiyana Mandir in Amritsar city and at Patti subdivision drew the attention of the court to the problem of disappearances in the State of Punjab, which was now reinforced by the evidence that its police force had been cremating thousands of bodies labelled as "unidentified" at various crematoria in the State. This was the asseveration in the first paragraph of the petition.
The second paragraph stated that over two thousand families in Amritsar alone have one or more "disappearances" to report. It is in this context that the court must examine the records of illegal cremations of 300 "unidentified" bodies at the Durgiana Mandir in 1992 and of 538 "unidentified" bodies at Patti between 1991 and October 1994. The petition pointed out that out of 300 bodies brought to the Durgiana Mandir in 1992, the names of 112 are actually recorded although they were cremated as unidentified. Forty-one were shown as having died of bullet injuries or in "police encounters". Cause of death of remaining 259 was not given.
The record showed that some of the bodies burnt at Durgiyana Mandir came from outside Amritsar; few from outside the State. One body was shown to come from Chamkaur Saheb in Ropar district. Two of them were shown to have been picked up in Uttar Pradesh and two others from Sopore in Jammu and Kashmir.
After analysing the Patti's firewood purchase records in the like fashion, the petition pointed out that according to the personnel of the crematorium and some farmers in its vicinity, the police had often been purchasing wood for one body but burnt several. With the result that they had to often collect half burnt and charred remains of bodies which stray dogs carried away from the pyres to adjoining fields and had to either cremate them again at their own expense or to dump them in the Rajasthan Feeder Canal.
Clause eighteen of the fifth paragraph in the petition went on to affirm that "These cremations are only part of the story. Punjab is full of canals. Reports about the recovery of dead bodies from all the major and minor canals of the State have been appearing in the local and the national press for the last several years. Clearly, these dead bodies are linked to the "disappearances" reported all over the State."
The paragraph four had already pointed out the main thrust of the petition, which was to affirm "a systematic and sustained policy of murder/extrajudicial execution and disposal of dead bodies by the police all over the State."
The petition then pointed out the grounds on which the Supreme Court was being moved: (a) As the ultimate repository and enforcer of citizens fundamental rights, the court had no option but to act on the disclosures made by the petition, even if partly borne out to be true. (b) Unless the court intervened to establish the truth, to bring the culprits to book and to suitably compensate the next of kin, the people of Punjab would completely lose faith in the possibility of justice within the system, a disillusionment that could give rise to fresh orgies of violence. (c) The court must direct the respondents to give clear explanation as to how the events narrated in the petition were allowed to occur and also direct them to place all information and evidence to "facilitate identification of the cremated persons" before the Inquiry Commission to be constituted. (d) It would not be possible to determine the identity of the cremated bodies unless the court ordered a comprehensive inquiry.
A separate application for interim directions, also filed on 3 April 1995, said that as the entire hierarchy of the Punjab police stood accused, the court had to order a full scale inquiry, also ensuring that the accused were unable to further tamper or destroy evidence. The court should, therefore, direct the the CBI or any other independent agency to commence the investigation and to immediately seize all the records, including the Daily Diary registers and the registers and files maintained under Rule 25.38 of the Punjab Police Rules, which lay down the procedure for the cremation of unidentified and unclaimed bodies. The application also requested the court to ensure full protection from harassment, intimidation and threats to all witnesses and human rights workers connected with the investigation and pursuit of the matter.

DISAPPEARANCE OF JASWANT SINGH KHALRA:
Jaswant Singh Khalra had for some time been receiving direct and indirect threats from the police officials of Amritsar district, particularly from Tarn Taran's Senior Superintendent of Police Ajit Singh Sandhu. The later had warned that unless Khalra ceased his involvement in the matter, he would also become an unidentified body. Although Khalra's friends and associates, including then President of the Shiromani Gurudwara Prabandhak Committee and a senior Akali leader Gurcharan Singh Tohra, advised him to leave the scene for a while, he refused to take to flight, and stuck with his human rights work in his native region.
On 6 September 1995 morning, the armed commandos of Punjab police kidnapped Khalra from outside his house in Amritsar. A bench of the Supreme Court under Justice Kuldip Singh treated a telegram about the abduction, which it received from Gurcharan Singh Tohra, as a petition for the writ of habeas corpus and issued notice to the Punjab authorities to either produce Khalra or account for his whereabouts. The S. P. Sukhdev Singh Chhina of Amritsar city filed affidavits to claim that Khalra was not wanted in connection with any case and that the police had not arrested him. Other officials also filed affidavits to maintain that the Punjab authorities were making all efforts to trace Khalra, contending at the same time that he might have become a victim of inter gang rivalries. SSP Sandhu of Tarn Taran also filed a statement to deny that he had ever threatened Khalra. Meanwhile, Paramjit Kaur Khalra had also filed a regular petition for a writ of habeas corpus, giving a detailed description of the abduction on the basis of eye-witness accounts. On 13 October 95, Advocate-General for the State of Punjab M. L. Sarin assured the court that he was personally supervising the investigation into Khalra's disappearance.

FOUR AFFIDAVITS IN THE CREMATIONS MATTER:
Meanwhile, another bench of the Supreme Court that had been hearing the Committee's Writ Petition (Crl.) No. 447/95 asked us to establish a real connection between the complaints of police abductions and reports on illegal cremations. Only then the court would entertain the petition and issue notice to the Punjab authorities. On 11 October 1995, the Committee filed four affidavits from relatives of persons abducted and disappeared by the Punjab police officials, who also prayed for a comprehensive inquiry. Life chronicles furnished by these four relatives of abducted persons compellingly established the connection between abductions, disappearances and secret disposal of dead bodies.

PYRE HUNTING OF A FATHER:
1. Sixty-five years old Baldev Singh from Amritsar had retired from 9 Punjab Regiment of the Indian army after being seriously injured during the war with Pakistan in 1965, which he fought at Punch sector in Jammu and Kashmir. Baldev Singh's eldest daughter Manjit Kaur had been India's star female weight-lifter, earning nineteen gold medals. She had also represented India in many international events, including the Asian Games held in Peking. His youngest twenty-five years old son Pragat Singh earned his livelihood from a dairy farm. The police began to harass him, picking him up for interrogation and torturing him in illegal custody. Unable to put up with the harassment, Pragat Singh went away from the house but was arrested on 19 September 1990 when he was watching a film at Sandhu Talkies, a cinema hall of Amritsar, along with his cousin Chayan Singh. On 5 November 1992, newspapers reported Pragat Singh's death in a supposed armed encounter with the police near Raja Sansi, a suburb of Amritsar. Baldev Singh talked to an employee at the General Hospital in Amritsar where the post-mortem of the dead body had been conducted. The employee's description of the body matched Pragat Singh's. Baldev Singh reached the Durgiyana Mandir cremation ground in the nick of time even as the police had just lit the pyre. The head was already burning, but the rest of the body was still intact. His son Pragat Singh was burning. Although Baldev Singh was allowed to carry the ashes for the last rites, the abduction and the illegal cremation remained officially unacknowledged. Traumatized by the incident, Pragat Singh's sister Manjit Kaur never again took part in competitive sport.

A CLEAN SWEEP:
2. Lakhwinder Kaur from Tarn Taran in Amritsar district was the mother of thirty-five years old Hardev Singh, a farmer and a member of the All India Sikh Students Federation. Hardev Singh disappeared after the police kidnapped him from the house of a colleague on 28 September 1992.

TEACHING A LESSON:
3. Baljit Kaur, also from Tarn Taran in Amritsar district, was married to a head constable of the Punjab police. Her brother Balwinder Singh, the elected head of the village council of Chabal Khurd, had been vocal against the police abuses and therefore had become an eyesore for the authorities. On 8 March 93, Balwinder Singh was picked up from his house by Balbir Singh, officer in-charge of Chabal police station. The next day, a group of police officials brought Balwinder Singh to his village and thrashed him there publicly until he fell unconscious. Later, he was taken back to the CIA interrogation center in Tarn Taran. Baljit Kaur's husband found out through his police contacts that his brother-in-law was later killed there and his body secretly disposed of.

A FRIVOLOUS PLEDGE:
4. Fifty-five years old Dilip Singh from Amritsar city owned a dairy farm and was an active member of the right wing Hindu Bharatiya Janata Party. His twenty-six years old son Jaswinder Singh was a college student and also worked in pharmaceutical shop. Earlier, he had been arrested under Terrorist and Disruptive Activities (Prevention) Act. Released on bail for lack of evidence, Jaswinder's trial was still pending. On 19 August 1992, Jaswinder Singh attended the special court at Faridkot and pleaded for a expeditious disposal of the case so that he could concentrate on his studies. The court fixed the case for final disposal the next day. The same evening, Jaswinder was abducted by armed commandos of the Punjab police when he was boarding a return bus to Amritsar. Approached by Dilip Singh for help, then Minister for Public Works in the Punjab government Joginder Singh Mann talked to SSP Jasminder Singh of Faridkot on telephone and confirmed that Jaswinder was indeed in his custody. Joginder Singh Mann gave Dilip Singh a letter introducing him to the SSP. The letter mentioned their telephonic talks about Jaswinder and requested him to meet Dilip Singh and to release his son. Dilip Singh met the SSP, who promised to let the boy go in some days. Later, he denied the custody. In early 1993, Vidya Sagar Sharma, SP of Faridkot, told Dilip Singh that Jaswinder Singh was alive and was being held in a CRPF camp. There has been no further information about Jaswinder's whereabouts.
On 11 October 1995, the Committee filed the affidavits of these relatives of the abducted and disappeared persons, supported by their prayer for a comprehensive inquiry. The matter came up for the hearing on 13 October 1995, when the court issued notices to the Punjab authorities and posted the petition for further hearing on 20 November 95.

AN INVESTIGATION INTO A GORY TALE:
Meanwhile, another bench of the Supreme Court under Justice Kuldip Singh was proceedings with the matter relating to Jaswant Singh Khalra's abduction. On 15 November 95, Punjab's Advocate-General M. L. Sareen suggested that the court should hand over the investigation of Khalra's abduction and disappearance to the Central Bureau of Investigation. Accordingly, the court directed the CBI to appoint an investigation team under a responsible officer. The court also took note of the allegations regarding police abductions, disappearances and illegal cremations, which Jaswant Singh Khalra had made in a press release dated 16 January 1995. In the 15 November 95 order instituting these inquiries, Justice Kuldip Singh observed: "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 that dead bodies of larger 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. We direct all the concerned authorities of the State of Punjab including the DGP to render all assistance to the CBI in the investigation… The CBI shall complete the investigation regarding kidnapping of Khalra within three months… So far as the second investigation is concerned we do not fix any time limit but direct the CBI to file interim reports… after every three months."
It is important to notice that the court's order did not set any limit to the inquiry; territorial, numerical or by the mode of body disposal. It only talked about the gory tale of human rights violations, the horrendous allegations and the need to investigate the facts contained in the press note. Following this order, which fulfilled the plea for a comprehensive inquiry, the Committee's petition 447/95 was also transferred to the same bench of the court under Justice Kuldip Singh. Hereafter, both the petitions were heard simultaneously.

INTERIM REPORT AND THE PUBLIC NOTICE:
On 22 July 96, the CBI submitted an interim report that disclosed 984 illegal cremations at Tarn Taran. The CBI also asked for the court to order registration of three separate criminal cases against the police officials in respect of three deaths in suspicious circumstances. The court ordered the CBI to register the cases. It also directed the investigative agency to issue a general notice to the public at large to assist in the inquiry. The court's order dated 22 July 96 said:
"Since large number of dead bodies have been allegedly disposed of by the police it may be necessary to seek assistance from the public at large. We direct the CBI in the course of enquiry to issue a general direction to the public at large that if any person/authority/government office has any information/material which may be of any assistance to the CBI in the enquiry in this matter, the same shall be placed before the CBI. We direct Mr. P. S. Sandhu, DIG (Border) to hand over the entire relevant records to the CBI immediately."

ABDUCTORS OF KHALRA IDENTIFIED:
On 30 July 96, the CBI submitted its report on Khalra's abduction and disappearance, holding nine officers of the Punjab police under SSP Ajit Singh Sandhu responsible. At the CBI's request the court directed their prosecution on charges of conspiracy and "kidnapping with intent to secretly and wrongfully confine a person". The court also directed the Chief Secretary of Punjab to sanction their prosecution within three weeks of the order. The Sanction Order dated 19 August 1996 elucidated the CBI's findings that established the criminal conspiracy to abduct Jaswant Singh Khalra. The Sanction Order pointed out that on 24 October 1995, eighteen days after his abduction, Khalra was found illegally detained at Kang Police Station, by a Kikkar Singh who was also detained there illegally. The Saction Order mentioned that Kikkar Singh witnessed the injuries on Khalra's body, the evidence of his custodial torture. It went on to say that Kikkar Singh helped Khalra to eat before he was taken away from the Kang police station, never to be seen again. Kikkar Singh's illegal detention from 14 October to 11 November 1995, as elucidated in the Governor's Sanction Order, was independently corroborated by an inquiry conducted by the Chief Judicial Magistrate of Chandigarh, which the High Court of Punjab and Haryana relied on to grant him monetary compensation. The evidence on record in the Governor's Order of Sanction confirmed serious offences under sections 302, 364, 346, 330, 331 and 120 of IPC. However, the offenders were arrested only under section 365 of IPC which is "kidnapping with intent to secretly and wrongfully confine a person", a woefully insufficient charge in the face of evidence which proved kidnapping with the intent to murder, illegal confinement, custodial torture and custodial murder. Subsequently, former Special Police Officer Kuldip Singh, who was attached to the Kang police station told the CBI that Khalra was tortured and then shot dead in the night of 24 October 1995. His dead body was quartered and thrown in river Sutlaj near Hari Ke Pattan.

COMPENSATION FOR THE "WORST CRIME AGAINST HUMANITY":
None of these facts were known to the court, which presumed Khalra to be still alive, when it ordered the prosecution of the officials on 30 July 96. On 7 August 96, the court also directed the Punjab government to pay one million rupees as interim compensation to Mrs. Khalra. The court's order said: "The fact remains that the abductors are keeping Khalra away from his family since 6 September 1995. Kidnapping of a person whose family is totally in dark about his whereabouts - even about the fact whether he is alive or dead - is the worst crime against humanity. In the facts and circumstances of this, we direct the Punjab government through the Chief Secretary, Punjab to pay a sum of Rs. 10 lacs as interim compensation to Mrs. Paramjit Kaur, wife of Mr. Jaswant Singh Khalra. In case, the police officers are convicted the State of Punjab can recover the amount from the police officers…" The court had awarded interim compensation for the crime of disappearance, which it described as the worst crime against humanity.

THE REFERENCE TO THE NATIONAL HUMAN RIGHTS COMMISSION:
On 10 December 1996, the CBI submitted its final and fifth report on the larger issue of police abductions and illegal disposal of dead bodies. We do not know what the CBI's inquiry report discloses on the larger patterns of enforced disappearances, extra-judicial elimination and illegal disposal of dead bodies. The court decided to keep its full contents secret, as urged by its officials on the ground that further investigations would be hampered on the publication of the report at this stage. However, the court's 11 December 96 order disclosed the number of 2097 illegal cremations - 585 fully identified, 274 partially identified, and 1238 unidentified -, carried out by the State agencies. Presumably, the CBI obtained these figures by investigating the records for Amritsar's three crematoria, which the Committee had furnished to substantiate its allegations. The Supreme Court observed that "the report discloses flagrant violation of human rights on a mass scale." Instructing the CBI to investigate criminal culpability and to submit a quarterly status report on its progress, the court's 11 December 96 order said: "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 he Commission by the learned counsel for the parties. Since the matter is going to be examined by the Commission at the request of this court, any compensation awarded shall be binding and payable."

CONFLICTS ON THE SCOPE OF THE INQUIRY:
Contentions on the scope of the imminent inquiry flared up before the Commission when it first heard the matter on 29 January 97. The Union and the State governments, as also the Punjab police officials representing themselves separately, vehemently opposed our assertion that the Commission's mandate under Article 32 of the Indian Constitution was to discover the depth and magnitude of all violations divulged by the CBI's report and to restore justice through compensation and other reparative measures. The proceedings of the Commission, under the Supreme Court's reference, had to cover not only the illegal cremations at the three sites revealed in the CBI's report, but also disposal of dead bodies in other ways throughout the seventeen districts of Punjab, without any time limit, which followed illegal abductions, enforced disappearances and extra-judicial executions carried out by the State agencies.

PROBLEMS WITH THE PROTECTION OF HUMAN RIGHTS ACT:
Some genuine confusion arose from the fact that the the Protection of Human Rights Act, 1993, the statute that created the Commission and bound its normal working, did not allow it to take up the issues, which it received from the the Supreme Court's remit. The following are the main limitations in the Act that created obstacles:
1. Section 36(2) of the Act says: "The Commission or the State Commission shall not inquire into any matter after the expiry of one year…" This is the most abhorrent clause in the Act, which has to be first removed if the Commission is ever to be able to recompense, in any measure, the wrongs that have been committed over the last decade and a half in Punjab. This was the period in which the population had been tightly controlled by the security forces, and had been prevented from filing complaints on the pain of reprisals. Prima facie demonstration of evidence should be the principle for the Commissions under the Act to take cognizance of a complaint, without any time limit. Some statutes of limitation impose a time limit only with the view that claims are not made after evidence has been lost. In German law, for example, the periods range from six months for breaches of administrative regulations to 30 years for crimes involving a life sentence but, as also in the United States, there is no limitation on crimes involving genocide and murder. In England, there is no general statute of limitations applicable to criminal actions. In 1968 the UN General Assembly adopted a Convention on the Non-applicability of Statutes of Limitation on War Crimes and Crimes against Humanity. Surely, an Act whose first Statement of Objects and Reasons refers to India's international human rights obligations, should have amended its clause 36(2) in conformity with this principle.
2. Under clause 11(b) and 14 of the Act, the Commission depended on the investigative agencies of the government, themselves accused of grave violations. The Act requires suitable amendment to enable the creation of an investigative mechanism, accountable to the National and the State Human Rights Commissions alone, that would possess statutory powers to demand cooperation from the government authorities under investigation. They must also have the powers to compel production of documents and other evidence, necessary to complete investigations.
3. The section 19 of the Act prohibits the Commissions from directly investigating allegations of human rights violations committed by the military and paramilitary forces. Amendment of this section is essential to the requirement of justice in a state where the military, the paramilitary and other central forces have been routinely deployed to carry out counter-insurgency operations.
4. Likewise, the clause 30 of the Act that provides for the establishment of special human rights courts requires guidelines on the mandate and powers of these courts and on the procedure, which they must follow. Amendment is needed also to remove the requirement of governmental sanction for the prosecution of public servants. Without it, the provision of special human rights courts under the clause 30 of the Act can have no meaning.
5. Finally, the section 18 of the Act has be so amended as to provide the National and the State Human Rights Commissions with the statutory powers to enforce its findings and recommendations.

FORMULATION OF THE PRELIMINARY ISSUES BY THE COMMISSION:
After hearing the diametrically conflicting interpretations of the Supreme Court's mandate, the Commission issued an order on 28 January 1997 asking all the parties to clearly state their views on the scope and ambit of the matter before the Commission. It also required them to opine on the jurisdiction, scope and ambit of the powers of the Commission under the dispensation of the Supreme Court's mandate. Specifically, the Commission's 28 January 97 order asked them to answer the following questions:
(a) Has the mandate of the Supreme Court had the effect of removing the bar of limitation under Section 36(2) of the Human Rights Act, 1993? Or, is the Commission designated sui generis to perform certain functions and adjudicate certain issues entrusted and referred to it by the Supreme Court?
(b) What are the views on the concept and content of the idea of compensation referred by the Supreme Court to the Commission for determination?
(c) What are the other specific issues that require to be decided by the Commission?
(d) Can the Commission set up an adjudicatory mechanism to expeditiously quantify compensation subject to the final decision to be taken by the Commission?

SUBMISSIONS BY THE COMMITTEE:
The Committee argued that the powers of the Commission in this particular case derived from the Supreme Court, within the jurisdiction under Article 32 of the Constitution. It was a well settled law - AIR 1984 SC 802 and AIR 1987 SC 1086) that the Supreme Court had the "amplest power to issue whatever direction or writ appropriate in a given case for enforcement of a fundamental right". Further, Article 32 laid down a "constitutional obligation on the Supreme Court to protect the fundamental rights of the people and for that purpose exercise all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce fundamental rights." Thus, the Commission, in this case, was a sui generis designate of the Supreme Court with all powers under the jurisdiction of Article 32, including its powers under the Protection of Human Rights Act, 1993. However, the limitations under the Act would not apply. In fact, the Supreme Court's 12 December 96 order clearly said that except for the registration of criminal cases against the culprits, which the CBI is to do, the Commission would determine all the other issues.
The Supreme Court's order made it clear that flagrant violation of human rights on a mass scale had taken place. As the Court had left "the whole matter to be dealt with by the Commission", it had to decide on the systemic aspects of the violations as it is inconceivable that violations of this magnitude can take place without the knowledge, approval and complicity of the State's higher echelons. As the CBI's investigations, which established mass cremations appeared to cover only three cremation grounds in Amritsar district, the Commission had to extend the investigation to all other cremation grounds in the State as well as to other forms disposing dead bodies with the enforced disappearance as the starting point. Only through a comprehensive investigation the Commission would be able to propose the corrective measures to ensure that such violations do not recur. In formulating the criteria for compensation, the Commission would be guided by the principles of (a) exemplary damages based on strict liability to penalize the wrong doer, as in 1993 2 SCC 746, and through determinations on the extent to which the imperatives of the State's responsibility to protect the fundamental rights have been offended, and the level of complicity of the political and administrative hierarchies in the violations; (b) the standards of repairing the wrongs caused to the victims and their families, as in 1997 (9) Seale 298, and by taking into account the particular circumstances of each victim and his traumatized family. The Commission should also be guided by the views and decision of the Human Rights Committee under the Optional Protocol on Civil and Political Rights on similar matters.

SUBMISSIONS BY THE STATE OF PUNJAB & THE POLICE:
Their arguments emphasized that the powers of the Supreme Court were not interchangeable with other bodies constituted under statute. For this reason, the referral of the issue of compensation as well as the other issues raised in the two writ petitions to the Commission violated the spirit of the Constitution. The Commission can adjudicate only if it is permissible to do so under the Protection of Human Rights Act, 1993. The mandate of the Supreme Court cannot have the effect of removing the limitations, which the Act imposed on the functioning of the Commission, particularly its section 36(2) that prohibited it to entertain complaints of violations older than a year. Therefore, the Commission had no choice but to decline adjudication in the matter. In any case, the Supreme Court did not intend it to take up any dispute outside the issue of compensation.

SUBMISSIONS BY THE UNION OF INDIA:
Union government's arguments, though couched in slightly more decorous terms, were essentially on the same lines, emphasizing that the Act did not give the Commission adjudicatory powers. It was a fact finding body that could only make recommendations to the government. An order of the Supreme Court or the High Court that extended the jurisdiction of a statutory body would be contrary to the constitutional scheme of things and, therefore, could not be complied. The Commission had to act within the limitation of Section 36(2) of the Protection of Human Rights Act, 1993 and Rule 8(I) of the National Human Rights Commission (Procedure) Regulations, 1994, which prohibited it from investigating complaints older than a year, the cases that were sub-judice and matters outside its purview. The Union government also argued that compensation could not be paid to legal heirs of "terrorists" who died in police actions and that allegations of atrocities and wrong doing against public servants had to be established through proper investigation before any action could be taken against them.

THE COMMISSION'S COUNSEL:
The counsel for the National Human Rights Commission made the following main arguments, which assume importance in contrasting with the changed perceptions that mark its latest stance on the scope of the inquiry. The counsel argued - then! - that the Commission's jurisdiction derived not only from the provisions of the Protection of Human Rights Act, 1993 but also from the Supreme Court's 12 December 96 order as well as the mandate of the International Covenant on Civil and Political Rights, 1966. The Commission was a unique institution established under the Act to implement India's commitments under the International Covenant on Civil and Political Rights and International Covenant on Economic and Cultural Rights. Acting on the additional dimension of jurisdiction under Article 32 provided by the Supreme Court's order in the present case, the Commission possessed the powers to investigate, inquire, determine liabilities, obligations, duties, and also to identify persons and authorities responsible for violations of human rights, to take further steps to ensure enforcement of such determinations, and to suggest remedial and compensatory measures. It would be absurd to suggest jurisdiction if the powers to consummate it are not simultaneously implied.

THE ORDER ON THE PRELIMINARY ISSUES:
On 4 August 1997, the National Human Rights Commission gave a detailed order on these preliminary contentions holding that it was designated as a body sui-generis to carry out the mandate of the Supreme Court, which had referred "the whole matter to be dealt with by the Commission" after concluding that "flagrant violaltion of human rights on a mass scale" had taken place.
Specifically on the question of whether or not the Supreme Court's reference conferred the plenitude of powers under Article 32, the order relied on the Supreme Court's judgments in Bandhua Mukti Morcha Vs. Union of India and M. C. Mehta Vs. Union of India. The two judgements said that where it involved the question of enforcing fundamental rights, the court, under the obligation to protect them which Article 32 imposed, had the power to forge new tools, devise new methods and adopt new strategies. Therefore, Section 36(2), or any other limiting provision of the Protection of Human Rights Act, 1993 would not constrain the Commission's powers, "as, indeed, it does not function under the provisions of the Act but under the remit of the Supreme Court", whose powers under Article 32 are not circumscribed by the Act. On the question of the Commission's power to adjudicate, the order said: "the jurisdiction and the powers of the Commission, to the extent they go, can be sustained on surer grounds which do not attract the vice of "delegation". The Supreme Court in its order has asked the Commission to have the matter examined… and determine all the issues which are raised before the Commission". It also observed that "if any approval or further assistance from this court is necessary the same may be sought by the Commission". Reading these two stipulations together it became obvious that the court retained authority over the matter and any determination by the Commission, wherever necessary and appropriate, would be subject to the court's approval.
Coming to the issue of compensation, the order referred to a range of decisions of the Suprme Court that lay down the broad parameters of the emerging concept of damages, also the guidelines as to the nature and content to the idea of compensation in public law. The order then referred to the requirements of Article 4(1) in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, which the government of India has ratified, and Article 2.3(a) of the UN International Covenant on Civil and Political Rights 1966, which require the State-parties to ensure that their legal systems allow the victims of torture and such persons whose rights or freedoms are violated to obtain redress. They must also have an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible, as well as other effective remedies notwithstanding that the violations have been committed by persons acting in an official capacity. The order also referred to the ratio of the Supreme Court's judgement in PUCL Vs. Union of India, which said that that "the provisions of the Covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such." The PUCL judgement also said that the resolutions of the General Assembly of the United Nations that lay down universal principles are entitled to incorporation as part of any particular fundamental right guaranteed by the Indian constitution. In Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi, the Supreme Court had declared, long before the 1984 Convention against Torture had come into force, that the protection against torture belonged to the right to life entrenched in Article 21. On the question of the State's liability towards victims of human rights violations, the Commission's order strongly relied on the Supreme Court's judgement in D. K. Basu Vs. State of West Bengal, describing it as one of far reaching significance that will shape the future. The judgement said: "…monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation."
On the question of quantification of compensation, the Commission's order said that it was first necessary to lay down the factual foundations to establish liability. With this order, the Commission disposed of the contentions on the scope of the inquiry and the powers of the Commission raised as the preliminary issues. The Commission then went on to invite from all the parties suggestions on modalities for further proceedings, and also to devise a pro-forma to invite complaints by public-notice.

SALIENT POINTS OF THE ORDER:
We shall take note of some salient points of this order before we move on, as they are crucial to understand the subsequent developments in the case. Firstly, the Commission claimed its jurisdiction under Article 32 of the Constitution, a guaranteed remedy and itself a fundamental right, which binds the Supreme Court to act against all complaint human rights violations. Secondly, it concluded that the Supreme Court had referred the whole matter to the Commission, to determine and adjudicate all the issues arising from the CBI's report, which established flagrant violation of human rights on a mass scale. All the references to concepts of damages, fair and adequate compensation in public law, the right to rehabilitation and redressal of established infringements revolve around Article 21 as a compendious guarantee that no person shall be deprived of life or personal liberty except in accordance with the procedure established by law. It is also affirmed that the State is vicariously liable for the acts of infringement committed by public servants and that the argument of sovereign immunity will not be available against claims of citizens for just and adequate compensation and punishment of the offender. Finally, the Commission asked for specific circumstances and the factual contents of all complaints as the basis to establish liability and to quantify compensation.

OUR SUGGESTIONS ON THE MODALITIES OF PROCEEDINGS:
On 30 August 1997, the Commission convened a meeting of all the parties to discuss the modalities of further proceedings and also to make suggestions on the format of the pro-forma, which should be used to invite complaints and claims. The Committee's written submissions emphasised the importance of synthesising the imperatives of transparency as well as the necessity to protect the primary data elicited through pro-formas from the dangers of abuses. It was also important that the Commission devised a way of managing and processing the data to ensure reliability of complaints and also to satisfy the subsequent requirements of analysis and cross-referencing. Because the need for completeness and reliability of disclosures and claims, as also the necessity to clearly understand the patterns of violations could require the Commission to undertake further in-depth investigations. Adjudication on patterns of violations and the development of criteria to quantify compensation could only develop from a satisfactory completion of this investigative process.
The Committee also submitted a design for the suggested pro-forma to elicit complaints and claims, which it had developed after consulting several international human rights organisations. (Annexture ?) It was suggested that the pro-forma should be available at primary health centers, post offices, offices of village revenue officials, block development officers, sub-divisional magistrates and district magistrates. They should also be available at jails and other custodial institutions.
As the first step, the Commission should publish a public notice that would begin with a clear statement on the mandate of the Commission. It should carry an assurance that confidentiality of the information shall be maintained and that complainants need not disclose the identities of witnesses while completing the pro-formas. They could supply this information later to the Commission in complete confidentiality. The notice should also say that anyone who made false statements would be liable to prosecution for perjury. Finally, the notice should specify the places where the pro-forma would be available, the places where the completed forms may be deposited, the date by which it should be done and their right to obtain receipts. These forms should then be forwarded to the Commission in sealed boxes. A specially constituted Secretariat of the Commission should then scrutinize the forms and collate the information in the following categories: a) Cases under each police-district, b) cases in which deaths are established, c) if established, whether there are corresponding entries in any record like the cremation ground record, municipal record or police record; d) cases in which deaths are not established; e) cases in which dead bodies were not handed over to the relatives; f) cases in which dead bodies were handed over to the relatives; g) the cases in which the bodies were cremated by the police as lawaris; h) cases in which prior to disappearance/ death the person was alleged to have been in police custody; i) cases in which there are witnesses to support this allegation; j) cases in which complaint/ representation as to the disappearance or police custody was made; k) cases in which the authorities responded to the complaint/ representation; l) cases in which destruction and/ or expropriation of property is also involved, m) cases in which more than one member of the family disappeared or died.
After processing this data, the Commission should call for information from the police. This should be done by giving them the names and other particulars of the missing/dead person. They may admit or deny knowledge or custody. They may have an explanation of death or disappearance. They will be required to substantiate their position by producing records, their diaries, their own dead-body disposal registers and so on. The police should also be asked to furnish explanation for the illegal cremations detailed in the CBI report. Independently, the Commission should call for the following official records: The cremation ground records of each police district insofar as they relate to cremations carried out by the police; the municipal records pertaining to dead bodies disposed of by the police; the records of each police district pertaining to custodial deaths and encounters; press releases including photographs issued by the police or the state government relating to deaths in custody, escapes and deaths in armed encounters.
Examination and processing of these sources of information would yield patterns of violations, which would lay the foundation for the adjudicative stage of the Commission's proceedings.

THE UNION GOVERNMENT GOES BACK TO THE SUPREME COURT:
When the Commission met for further hearing on 4 September 1997, the standing counsel for the central government moved an application praying that the proceedings of the Commission be stayed for three months as the Central government and the Ministry of Home Affairs, not being in agreement with the Commission's order of 4 August 1997, wished to move the Supreme Court for a clarification. The Commission adjourned the matter till 6 October 1997 to given them time.

THE SECOND VERDICT OF THE SUPREME COURT:
The Union government's application for clarification reiterated the objections, which it had earlier raised before the Commission. The application was heard by Justice Saghir Ahmed, who had shared the bench with Justice Kuldip Singh in remitting the matter to the National Human Rights Commission, and Justice S. Rajendra Babu. The verdict, which came a year later on 10 September 98, said that the National Human Right's Commission's findings on all the four preliminary issues were explicit and clear and reflected the intention of the court as set out in its 12 December 1996 order. The judgment clearly said that "In deciding the matters referred by this court, National Human Rights Commission is given a free hand and is not circumscribed by any conditions."" This elucidation settled the issue of jurisdiction and the Commission's powers.
Unfortunately, the part of the order regarding the ambit of the inquiry contained some ambiguities, which the Commission would later use to make its about turn on the scope of the inquiry. First it said, "The matter relating to 585 dead bodies, which were fully identified, 274 partially identified and 1238 unidentified dead bodies, has already been referred to the Commission, which has rightly held itself to be a body sui generis in the instant case." This emphasis on the number of bodies cited in the CBI's report left some margin for the interpretation, contrary to the mandate of Article 32, that the inquiry would not encompass the wider patterns of police abductions leading to disappearances and secret disposal of bodies. Later in the order, the court seemed to overturn the narrow interpretation on the ambit of the inquiry in favor of a more comprehensive approach. Referring to 22 July 96 direction given by the Court to the CBI to issue a general notice to the public, including any authority and government office, to place any information or material available with them to assist the investigating agency to ascertain the identities and circumstances in which the large number of dead bodies had been cremated, the court concluded that "It is in the background of the above order that the order dated 12th December 1996 is to be read, in which this court had stated as under: "Without going into the matter any further, we leave the whole matter to be dealt with by the Commission". By the force of Article 32, invested in the Commission to overcome its statutory limitations, the "whole matter" obviously meant infringement of all the fundamental rights that arise from the CBI's findings. But the wordings of the order were by no means unequivocal on this important issue, as they should have been.
In fact, the court ought to have known better: It was familiar with the disposition of the authorities to hamper the inquiry from going into the systemic aspects of the violations. The authorities had from the very beginning harped on "impermissible delegation of powers", which exceeded the scope under the Protection of Human Rights Act, 1993, and they had claimed all along that the Commission should, therefore, decline to adjudicate the issues that arose from the reference. True, the court's ruling that "in deciding the matters referred by this court, National Human Rights Commission is given a free hand and is not circumscribed by any conditions," should have been enough to end the controversy. But another observation in the court's order not only left the argument open but also created the necessary legal ambiguity, which would allow the Commission to invert its earlier positions. Referring to the ongoing investigations by the CBI, the court said: "The investigation by the CBI has been ordered and is being done to determine and establish some other facets, including culpability of those responsible for violation of human rights. The remaining issues have been referred to the Commission. They obviously relate to violation of human rights. If on a publication of general notice, as proposed by the Commission, which incidentally was also done by the CBI in pursuance of our Order dated 22 July 96, complaints relating to violation of human rights are filed before the Commission, it will investigate into those complaints in accordance with the provisions of the Act, specially Section 17 thereof and will also take such steps, after enquiry, as are deemed fit by it in the light of the provisions contained in Section 18 of the Act." This part of the order seemed to confuse the issues once again since it was possible to argue that whereas the Commission would adjudicate the matter of 2098 bodies without any limitations, it will investigate other complaints that may result from the publication of the notice in accordance with the provisions of the Act.
This legal muddle was to prove an unremovable stumbling clock, and to frustrate yet again years of efforts - just when these efforts were at last showing promise of bearing fruit and forcing our institutions to account for their deeds..
The court's order concluded with some critical remarks on the attitude of the parties before the Commission. It said, this "is not a healthy attitude and does not represent the effort to assist the Commission for a quick conclusion of the proceedings so that if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated." The court went on to say, "We also do not approve of the conduct of the parties in approaching this court for clarification of the order of the Commission by way of a miscellaneous petition which was filed on 3 October 1997 and has remained pending in this court for ten months, during which period the Commission could have had disposed of the whole matter." .
Although the court's order purported to settle all the preliminary issues, it would soon lead us to a deadlock. It is this deadlock that this report aims to highlight and remedy. As it is, we may have no choice but to revert to the Supreme Court for a clarification even though the court has indicated its disapproval of the parties approaching it for clarification on the Commission's orders.

ARGUMENTS IN A VICIOUS CIRCLE:
But let us get on with the further developments in the case. The Commission met again on 16 September 98, after its proceedings in the matter had been stalled for more than a year. Although the agenda was to develop clear modalities for the inquiry and to finalize the Public Notice to invite complaints and claims, the Commission popped up the issue of "filters" to be applied so that the matter would not become excessively enlarged. The Union and the State governments renewed their claims to circumscribe the inquiry to the locations, the numbers and the mode of disposal of dead bodies cited in the CBI's report. The Committee made written submissions to argue that any contention to limit the inquiry, as desired by the Union and the Punjab governments, would be wholly repugnant to the Supreme Court's express intent. The CBI may have chosen to limit its investigations of the cremations at Durgiyana Mandir, Patti and Tarn Taran crematoria for the reason that their records had already been supplied by the Committee. For the Commission to repeat the same exercise and to exclude all other issues of violations that remained undetermined would not only be devoid of reason but also constitute a substantial abridgement of the Supreme Court's order. Illegal cremations, burials, entombment or quartering and drowning of bodies in canals, as issues, must remain secondary to the principal theme of fundamental rights whose violations had preceded and culminated in one or the other form of disposal.

'DECONSTRUCTION' OF A MANDATE:
On 13 January 1999, the National Human Rights Commission passed yet another order, which it called "ORDER ON THE SCOPE OF INQUIRY", whose net import was to 'deconstruct' - to demolish, if you prefer - our own understanding of the mandate, which was fully consonant with the Commission's earlier decision on the preliminary issues and which the Supreme Court's 10 September 98 clarification seemed to affirm with some ambiguities. The Commission posed the problem succinctly: "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 to have been committed by 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."

STRANGE EMPHASIS ON KHALRA'S PRESS NOTE:
To resolve the controversy, the Commission decided to revert back to the history of the litigation and the Supreme Court's orders to search for the contradictions within their interstices to support a reversal of its earlier position.
The Commission referred to the Court's 15 November 95 order directing the CBI to undertake the inquiry into the Press Note released by Jaswant Singh Khalra on 16 January 95, which was titled "Disappeared: Cremation grounds". According to the Commission, the press note talked about a large number of human bodies being cremated in the district of Amritsar as "unidentified", 700 bodies at Tarn Taran Municipal crematorium, 400 at Patti Municipal ground and 2000 at Durgiyana Mandir cremations ground. The Commission's order claimed that "the Press Note did not speak of any illegal executions or similar cremations in any other District of Punjab". The Supreme Court ordered the CBI to investigate the allegations contained in the Press Note, "which related only to the cremations at the three crematoria of Amritsar district." Accordingly, "the scope of the inquiry was restricted".

THE COMMISSION RENDERS THE GRIEVANCE:
The Commission conceded that some paragraphs in the petition filed by the Committee referred to extra-judicial executions and disappearances alleged to have occurred all over the State. However, these statements were general in nature and were not backed by material evidence to support them. Therefore, "they did not admit of specific traversal except by way of general denials." In the Commission's opinion, the pleadings taken as a whole centered around the main grievance that extra-judicial killings and disappearances had culminated in the cremations at Durgiyana and Patti Municipal cremation grounds. Thus, so far as the CBI was concerned the scope of the inquiry ordered by the Supreme Court was limited to the allegations in the Press Note about the cremations in Amritsar district. As the petitioners did not seek modification of the Supreme Court's order of inquiry by the CBI, it was obvious that all the parties agreed that "the inquiry was and should be limited to cremations in Amritsar district." The Commission went on to conclude: "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."
To buttress the conclusion, the order referred to the Public Notice carried by the CBI in Punjab's newspapers which said that the investigating agency was "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." This showed the CBI's understanding on the scope of the inquiry. The petitioners should have moved the Supreme Court for a direction to the CBI to enlarge the scope, if in their opinion the investigating agency had misunderstood the court's intention. Absence of any such endeavor indicated their agreement. Also, they did not raise objections even as the CBI kept filing its reports, culminating in the fifth and the final report filed on 9 December 96, which disclosed 585 fully identified, 247 partially identified and 1238 unidentified bodies. As the Supreme Court remitted the matter in consideration of this final report, the scope of the inquiry by the Commission had to be accordingly restricted.

THE TERMS OF REFERENCE: NEW INTERPRETATIONS:
The Commission's order then responded to the Committee's arguments on a more expansive scope of the proceedings. About the wide terms in which the Supreme Court had refer the matter to the Commission in its 12 December order, the Commission said that they did not have the effect of enlarging the scope of the inquiry instituted by the court with its 15 November 95 order, limited to the allegations in Jaswant Singh Khalra's 16 January 95 Press Note. The wide terms of reference in 12 December 96 order only related to the issues or compensation and other appropriate reliefs, whenever justified, arising from the cremations in the three police districts of Amritsar. The Commission claimed further support for this conclusion from the Supreme Court's 10 September 98 clarification, which disposed of the Union government's application against the Commission's 4 August 97 order. The Supreme Court's clarification had 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 conclusion, the Commission said: "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."

SOME ABSURD CONCLUSIONS:
The most important point about this order, which restricts the inquiry to "cremations", "the given number of 2097 bodies" and the "location of Amritsar district", is the pivotal importance it attributes to Khalra's 16 January 95 Press Note, and the conclusion that "it did not speak of any illegal executions or similar cremations in any other District of Punjab." It is a matter of record that Khalra's Press Note, (Annexture ?) made a passionate statement on common patterns of police abductions, disappearances and extra-judicial executions throughout the State, using the records of cremations in Amritsar only as an example of the larger reality. It is also known that the Supreme Court had withheld the CBI's report as a secret document, which left us no chance to study its contents let alone challenge them. It was also absurd for the Commission to suggest that the scope of the inquiry was limited by the CBI's understanding of the Supreme Court's order and our failure to seek modifications in the directions. We cannot explain why the CBI decided to confine its investigations to those records of cremations that we had already furnished, in stead of finding out if such events occurred in other parts of Punjab as well. Few substantiated facts through purely voluntary effort were brought to the Supreme Court's notice. That cost Jaswant Singh Khalra his life. The Commission's order suggested that our allegations about larger patterns of abductions, disappearances, extra-judicial killings and secret disposal of dead bodies did not admit of traversal except by way of denial because they were substantiated by material evidence. This is downright absurd. Our specific allegations are all supported by proofs. This should be enough to shift on the State authorities the burden of proving that such violations have NOT taken place in other parts of Punjab. Even the State of India has made no such claim. The CBI report, far from ruling out such occurrences in the rest of Punjab, renders them strongly probable. Be that as it may, this order of the NHRC is an abomination. It grates on our understanding of truth and restorative justice, and it goes squarely against the fundamental principles of human rights law as it has developed in this country. Just marvel at the logic of it all: on the one hand, the Commission is employing the competence of Article 32, a constitutionally guaranteed remedy against infringement of all fundamental rights of citizens, to amplify its powers beyond the statute, which created it. But simultaneously, it insists on disallowing the benefits of this guaranteed remedy to the citizens who have suffered the violations. This indeed is extraordinary.

THE EXCLUDED ISSUES:
The National Human Rights Commission is an expert body created by statute to fulfill Indian obligations under the International Covenant for Civil and Political Rights. By the injunction of Article 32, and agitated by the larger implications of the CBI report, the Supreme Court remitted this matter to the Commission. The main issues to be adjudged are enforced disappearances and arbitrary executions, carried out by the State agencies, which culminated in illegal cremations and disposal of bodies in ways that remain largely unknown. This is the inescapable conclusion that follows from the composite reading of the allegations and the prayers in the writ petitions, the Supreme Court's initial order asking the CBI to investigate, the order by which the Supreme Court referred the matter to the NHRC, the Commission's own findings on the preliminary issues and, finally, the Supreme Court's clarification on the Union government's objections.
The Commission refuses to acknowledge enforced disappearances, arbitrary executions and secret and hasty disposal of dead bodies, outside the CBI's list of 2097 cremations in Amritsar, as issues pertinent to the matter. Article 1 of the Declaration on the Protection of All Persons from Enforced Disappearance condemns this crime as "a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights." The Working Group on Enforced or Involuntary Disappearances points out that cases of disappearance cannot be closed and must be treated as continuing crime until whereabouts of the victims, dead or alive, are made known by the State agencies to the satisfaction of relatives, and their right to obtain redress including medical, psychological, legal and social rehabilitation are recognized. Alike are the stipulations, under the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. As we earlier observed, the Supreme Court itself described enforced disappearance as the worst crime against humanity.

THE PROBLEM WITH THE TERRITORIAL LIMITATION:
The territorial limitation to the inquiry imposed by the Commission would burden us with other restrictions and completely defeat the ends of justice. Without a comprehensive inquiry, it is not possible to establish the regions of Punjab the 1500 unidentified bodies, cited in the CBI's cremation report, came from. The records of the three burning grounds in Amritsar that we had furnished pertained to the period from 1991 to 1993. Presumably, the period of inquiry by the CBI was also limited to this time. However, the notification published by the Commission has enlarged the time span from 1984 to 1994 while keeping the inquiry limited to the number of bodies cited in the CBI's report. The logic behind this expansion of time frame by the Commission, while giving up on all other relevant issues, is inscrutable indeed. Although many unidentified bodies cremated at these sites between 1991 and 1993 would have come from far-flung districts of Punjab, it should be possible to cover up the truth by associating the numbers in the CBI's report to more than 2000 persons in the district of Amritsar who disappeared in the span of a decade.

EMPTY EMPHASIS ON COMPENSATION:
The notification and the questionnaires circulated by the Commission to invite claims put the emphasis on compensation that the legal heirs to illegally cremated victims should eventually receive. However, the questionnaires circulated by the Commission skip over all the destructive experiences of victims so necessary to develop criteria for monetary compensation and other restorative and rehabilitative measures. For example, the questionnaires seek details of occupation, income, property owned by claimants and persons whose bodies had been cremated. But they offer no columns for the claimants to inform the Commission about destruction, theft and confiscation of their immovable property, cattle, crops and chattel. Likewise, no attempt has been made to measure psychological damages and their consequences suffered by relatives of victims. The questionnaires indicate that the Commission does not also care for the plights of widows and orphans as issues relevant to determination of compensation.

THE BURDEN OF PROOF:
The rules of evidence and some other aspects of the procedure suggested by the Commission lack conceptual deftness and comprehension of intricacies involved in an inquiry of this nature. These deficiencies, synthesizing with other anomalies already discussed, would create obstacles in the way of monetarily compensating the victims of illegal cremations in Amritsar by standards of fairness, adequacy and justness. The Commission has invited claims from legal heirs of people who got illegally cremated in Amritsar district in the period between 1984 and 1994. The 13 January 1999 order of the Commission has also asked the State government to file before the Commission a list of all the unidentified cremations in the district done by the police in the same period. The order lays the initial burden to prove legality of the cremations on the State authorities. The supposed onus of proof on the State is meaningless in a situation that does not afford the victims any means to assail plain lies. Sections 107 and 108 of the Evidence Act turn the burden to prove death of a disappeared person on one who claims it. State authorities can take the cover of these sections to disclaim responsibility for such cases of enforced disappearances. Payment of compensation is unlikely for so long as the presumption of death is not established. Some countries like Chile and South Africa have exhumed mortal remains from graves and other undesignated places to forensically identify people who got clandestinely buried after having got abducted by the security agencies. But exhumation and other forensic methods would not salvage identities of those who got surreptitiously burnt and their ashes washed away in rivers and canals. A judicial declaration on presumption of death can help. However, no such declaration can come forth through a process that excludes enforced disappearance as an issue for scrutiny.

OUR UNDERSTANDING OF THE MANDATE:
These are some of the points on which we abhor the NHRC's scuttling of its remit under Article 32 of the Indian Constitution. Our understanding of the mandate is: (1) The Commission is duty bound to investigate and give its findings on every complaint of illegal abduction, enforced disappearance, arbitrary execution and disposal of dead body carried out throughout Punjab. (2) Further, it has to examine the antecedents, circumstances, factors and context of such violations to determine the variety of overlapping rights inherent in the rights to life, liberty, and equality before the law which have been destroyed. (3) The Commission also has to unravel the multifold spiral of responsibility/ irresponsibility that permitted systematic practice of crimes against humanity, and in particular to identify the officials and agencies that conducted, connived or knew, and did not take measures in their power to prevent, suppress or to expose these wrong-doings. (4) The inquiry has also to identify the victims, be they individuals or collectives, who suffered harm, including physical and mental injury, emotional suffering, economic loss or denial of other fundamental rights. The process of identification has also to include, apart from the family and dependents of those disappeared and killed, all such persons who suffered harm in the process of attempting to prevent these offences and in helping their victims. (5) The Commission had then to quantify compensation and develop other measures of restitution and rehabilitation on criteria to be evolved through determination of the aforementioned issues.

THE COMMISSION REJECTS OUR REVIEW APPLICATION:
After marshalling all our arguments against the 13 January 99 order, the review application requested the Commission to seek directions from the Supreme Court by formulating the issues that we had raised, if it was not willing to review its own order. The Supreme Court's 12 December 96 order explicitly mentioned that "if any approval or further assistance from this court is necessary, the same may be sought by the Commission." Our application also requested the Commission to withhold the publication of the Public Notice, which it proposed to issue on 31 January 99, as long as our review application was not disposed of. The Commission decided to go ahead with the publication of the Public Notice, and dismissed our review application, after hearing the arguments, with an order which it released on 24 March 99. The order said that the Commission had carefully considered the Committee's arguments which had been raised earlier, and are nor reiterated. The relevant question was not whether the Commission should or should not investigate the serious issues arising out of what is perceived as a violation of human rights on a mass scale. The relevant question is whether the remit and the mandate of the Supreme Court, from which the Commission draws jurisdiction, has the scope for this. It was the Commission's view that the directions of the Supreme Court did not envisage a wider investigation of all the alleged extra-judicial executions or enforced disappearances in the State of Punjab, but referred to the issue of cremation of 2097 bodies as unclaimed bodies in the police districts of Amritsar, Patti and Tarn Taran. About the contention that the Commission could not ignore the systemic patterns in the killings that culminated in the cremations, the Order said that if such patterns are disclosed from the examination of 2097 cases of cremations, it would then consider what further action to take within the remit. Elucidating the Commission's methods to determine the illegality of cremations, the order explained that apart from inviting claims from the members of the effected public, it has also directed the State of Punjab to explain each cremation in the three police districts. The government had to file before 10 March 99, a chronological list of all the cremations done in the three cremation grounds between June 1984 and December 1994, and also explain in respect of each cremation whether the authorities had observed the rules that have to be followed for cremating unclaimed and unidentified dead bodies. If necessary, and at the appropriate stage, the Commission would examine the details about the compliance or non-compliance with the rules and their consequences. The order also declined the suggestion that the Commission should seek further directions from the Supreme Court on the scope of the inquiry, because it had no doubts on the mandate from the Supreme Court. Thus, the review petition was dismissed.

THE GROUNDS FOR MOVING THE SUPREME COURT:
1: Having failed to persuade the Commission to either review its order, in the light of our submissions, or to refer the matter back to the Supreme Court for clarification, as it has been mandated by the court, we have no option but to take the latter course ourselves. As we have already said, the restrictions imposed on the inquiry fundamentally affront our understanding of truth and restorative justice. As the Commission pointed out in its 4 August 97 order, the court retained "seisin over the matter and any determination by the Commission, wherever necessary and appropriate, would be subject to this power of approval…". Naturally, the principles that would guide the Court in approving or revising any determination by the Commission, must be consistent with the jurisdiction of Article 32, which is not only the source of the court's power, but also the Commission's own authority as a body sui-generis. This matter of enforced disappearances and secret disposal of dead bodies came within the regime of Art. 32, when on 15 November 1995, the court directed the Central Bureau of Investigation to examine the facts contained in Jaswant Singh Khalra's Press Note dated 16 January 1995. As the record will show, the Press Note (Appendix G) makes an ardent appeal on common patterns of police abductions, disappearances and extra-judicial executions throughout the State, using the records of cremations in Amritsar only as an example of the larger reality. Again on 22 July 95, the court directed the CBI to seek assistance from the public at large "since large number of dead bodies have been allegedly disposed of." The direction only refers to alleged disposal of large number of bodies, without circumventing the inquiry in any way. It is not our responsibility to explain how the CBI grasped the court's directions or why it confined its investigations to only those cremation grounds whose records had come essentially from our own investigations. Be that as it may, the CBI's investigation report disclosed, in Supreme Court's own words, "flagrant violation of human rights on a mass scale". It is on this finding, that the court referred "the whole matter to be dealt with by the Commission", requiring it 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". From the very beginning we maintained that the illegal cremations carried out by the police in Amritsar, which we substantiated with the records from three crematoria, are part of a larger pattern of abductions, disappearances, extra-judicial killings and secret disposal of dead bodies that had been common to the whole of Punjab. The specific allegations that we made have been proved, and it cannot be said that the CBI's report rules out such occurrences in the rest of Punjab.

THE LIGHT OF FURTHER EVIDENCE:
For these reasons, the Commission under the mandate of the Supreme Court cannot exclude complaints from other parts of the State, especially in the light of further evidence that we are introducing to brace up our oft-repeated claim that what happened in Amritsar repeated elsewhere. The evidence that we are now presenting has two distinct components. The first part consists of municipal corporation records of illegal cremations at six crematoria, all outside Amritsar. The records are from Zira, Mansa, Kapurthala, Faridkot and Ludhiana.

INCIDENT-REPORTS AND VICTIM TESTIMONY:
The second part of the evidence draws from victim-testimony and survivors discourse, which the Committee has assiduously compiled by recording interviews with the close relatives of those who got abducted, disappeared, killed, and cremated, and by getting them to fill an Incident Report Proforma, designed to capture complaints of human rights violations with all their ramifications. This evidence is specially valuable because it relies on the 'counter memory' of those who were at the receiving end of police brutality in those days, and also, more disturbingly, largely left out of the accounts of many 'human rights champions'. Therefore, to gain a better understanding of the nature of the investigation and of the issues involved, let us hearken to the victims' own voice, and let us for a while forget the dry legalities and theoreticalities into which the Commission has been translating their human woes.

THE OBLIGATION OF A THOROUGH INQUIRY:
All the Incident-Reports and the bodies listed in the six further records of illegal cremations inseparably belong to the same matter of enforced disappearance and illegal disposal of dead bodies, which the Supreme Court brought under the regime of Article 32 in November 95. All these incidents arise out of the same context of State repression, which we had taken to the Supreme Court for remedy and restitution by filing the Writ Petition (Crl.) No. 447/95 in April 95 under Articles 32, 21, 19 and 14 of the Constitution.
There is a close correspondence between the numbers of enforced disappearances reported in Amritsar district and the numbers of illegal cremations cited in the CBI's report. Further records of illegal cremations in other districts of Punjab authenticate a common pattern. Our own documentation of survivor testimonies also show widespread practices of abductions accompanied by destruction of property, custodial torture, extortion, leading to disappearances, reports of killings in so called "encounters", or escapes from the State custody. In the circumstances, the procedure of inquiry by the National Human Rights Commission, mandated by the Supreme Court, must invite all complaints of enforced disappearance and arbitrary killing, as well as all records of cremations carried out by the police, the official records pertaining to custodial deaths and encounters, press releases issued by the State authorities relating to deaths in custody, escapes and deaths in armed encounters. Examination and comparison of these sources of information would help to resolve many cases of enforced disappearance. We have already submitted our suggestions on the modalities for the gathering and processing of data.

STANDARDS OF INVESTIGATION:
Amnesty International's "Disappearances and Political Killings: A Manual for Action," released from Amsterdam in 1994, propose standards and techniques of investigation that confirm to the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, which the UN's Special Rapporteur uses to assess governmental investigations. The UN Manual on page 14 states, "Non-compliance with the standards can be publicized and pressure brought against non-complying governments, especially where extra-legal, arbitrary and summary executions are believed to have occurred. If a government refuses to establish impartial inquest procedures in such cases, it might be inferred that the government is hiding such executions".
The Manual for Action proposes techniques of investigation, some of which would be very efficacious in this case, including collection and examination of evidence from eyewitnesses, interviewing the involved officials, the personnel from the cremation sites, human rights activists, lawyers and journalists who may have investigated these cases, detailed expert examination of the scene of death, ballistic examination of ammunition and firearms used in the killings, and autopsy reports.
Most of the bodies illegally cremated by the police had been subjected to autopsy. These autopsy reports, when compared with unresolved complaints of disappearances, should normally be helpful in establishing identities of victims. The Chief Medical Officer of the Civil Hospital at Patti had informed us that the post-mortem procedure in the period of unrest in Punjab had become a total travesty. The investigation should attempt to ascertain whether the doctors conducting the autopsy were professionally competent, impartial and independent of those responsible for the deaths. It should also answer whether the doctors had independent access to investigative data, including the places where deaths supposedly occurred, whether the autopsy reports described all injuries, including evidence of torture, all marks of identification, details of X-ray examination, photography, histological examination of tissues, etc., as mandated in the Model Autopsy Protocol included in the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
Parallel examination of these varied sources of information and evidence would resolve many cases of enforced disappearances. It would also help in tracing so-called unidentified bodies cremated by the police back to their origin, in identifying the identities of the perpetrators and the common patterns of operations by the security forces, which led to the violations under investigation. The cases in which identities of victims, the causes, manner and the circumstances of their disappearance, death and cremation get established can then move on to the stages of reparation and restitution. The cases in which only enforced disappearance is proved but not the victims' fate, the Commission can devise the appropriate legal procedure to establish the presumption of death and enable the dependants to avail compensation. Instances of illegal cremations in which victims are not identified will enhance the burden of State's liability in the measures for individual and collective reparations.
However, the National Human Rights Commission's 13 January 99 order, later confirmed by its rejection of our review petition, will not only exclude all these cases, including the further records of illegal cremations, but will even embargo the issues of enforced disappearance and custodial killing outside the purview of the CBI's report from the Supreme Court's remit. Because in the Commission's view, as it says in its 24 March 99 order, "the scope of the subject-matter of the inquiry by the Commission pertains to the examination of and grant, in appropriate cases, of relief to the cases of 2097 persons whose bodies were cremated in the crematoria of the three police districts of Amritsar, Tarn Taran and Majitha ...".

THE IMPERATIVES OF INDIAN CONSTITUTIONAL GUARANTEES:
This view of the Supreme Court's remit, if it comes to prevail, would not only subvert the regime of Article 32, but also completely obliterate the meaning of Articles 21 and 14, which have been entreated as constituting the substance of the Committee's petition. Let us briefly recall what these Articles really mean, beginning with Article 21 which says that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law."
Article 21
The meaning of this Article has been very penetratingly deliberated in the history of Indian Supreme Court from the time of A. K. Gopalan Vs. State of Madras. There is no dispute that the Article 21 is a compendious guarantee, in the Chapter III of the Constitution, which includes the variety of requirements that make up the right to life and liberty. Justice Patanjali Shastri explained in A. K. Gopalan that the right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by procedure established by law, which means positive or State made law.
In Kharak Singh Vs. State of U. P., Justice Ayyangar quoted an American Judge of the Supreme Court to explain that "By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world… By the term liberty, as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison." Justice Ayyangar goes on to quote Justice Frankfurter, as from the American Supreme Court, to the meaning of liberty: "The security of one's privacy against arbitrary intrusion by the police… is basic to a free society. It is therefore implicit in the concept of "ordered liberty" and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples… We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the fourteenth amendment."
In straight terms, the right to liberty means that no one be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. As Justice Subba Rao explained in the same case, psychological restraints as also "the creation of conditions which necessarily engender inhibitions and fear complexes" can be described as physical restraint. If a man is shadowed, his movements become constricted. He moves physically like an automaton without freedom. The whole country becomes his jail. "The freedom of movement therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law…"
This comprehensively view of right to life and liberty suffered a major reversal during the period of the Emergency when the suspension of all the fundamental rights by the regime was justified by the Supreme Court in A. D. M., Jabalpur Vs S. Sukhla. Justice M. H. Beg echoed the common position: "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."
This position, inconspicuously present already in the ratio of A. K. Gopalan, became alleviated by the affects of the forty-forth amendment of the constitution in 1978, and by the ratio of Maneka Gandhi Vs. Union of India. The 44th Amendment Act of 1978 provides that the suspension of fundamental rights under any law or executive order in the situation of a proclaimed Emergency, under Articles 358 and 359 of the Constitution, can be shielded only if the suspension is limited to the purpose of the Emergency through a clear recital. It also provides that the enforcement of right to life and personal liberty, guaranteed by Article 21 of the Constitution, cannot be destroyed even in such a situation.
In an important judgement, Minerva Mills Ltd. Vs. Union of India, the Supreme Court pronounced that parliament cannot claim unlimited powers to amend the constitution to the extent that it abrogates its basic features. The judgment resulted in the annulment of the Clause 4 of Article 368 that sought to save amendments of the Constitution including its chapter on fundamental rights from being challenged in any court on any ground. To an extent it also recovered the power of judicial review, which had been lost to the affectation of legislative omnipotence, as an essential feature of the Constitution itself. Maneka Gandhi Vs. Union of India, in so far as it imports the test of reasonableness and fairness to determine the validity of a law that deprives personal liberty, is described as a landmark in the juridical rehabilitation of the concept of due process which had been given a short shrift by the majority view in Gopalan Vs. State of Madras. The emphasis on the "procedure established by law" in Article 21 was now to be moderated by the dictum that the law must also prescribe a procedure which is not arbitrary, unfair or unreasonable. The case also restored the necessary amplitude to the interpretation of rights to life and liberty by underscoring the variety of overlapping rights they incorporate. It followed that a substantive legal restriction on the rights to life and liberty must not, as its inevitable corollary, excessively infringe on other rights immanent in them. Article 32 is the remedy against any such infringement.

Article 32
In Minerva Mills Vs. Union of India Chief Justice Chandrachud referred to the following statement of Dr. Ambedkar, which he had made in the Constituent Assembly, to explain the importance of Art. 32 in the Constitutional scheme of life in India: "If I was asked to name any particular Article in this Constitution as the most important - an Article without which this Constitution wold be a nullity - I could not refer to any other Article except this one. It is the very soul of the Constitution… and I am glad that the House has realized its importance."
Article 32 does not merely empower the Supreme Court to insure enforcement of fundamental rights, guaranteed under Chapter III of the Constitution. It actually exists as a "guaranteed remedy", itself belonging to the Part III of the Constitution, which the citizens can claim as a matter of right. This principle was long ago settled in Romesh Thappar vs. The State of Madras. The principle was further strengthened in Sheoshankar Vs. State Govt. of Madhya Pradesh when Justice Hidayatullah clarified that whereas Art. 226 leaves it within the discretion of the High Court whether to entertain a petition or not, Art. 32 makes it obligatory upon the Supreme Court. It is a power that is to be used "eo instanti".
Kochuni Moopil Nayar Vs. State of Madras reaffirmed these principles and further said that the Court could not refuse a petition under Art. 32 even when it involved disputed questions of fact. In Ujjam Bai Vs. State of Uttar Pradesh, Justice Subba Rao proclaimed: "This court has no more important function than to preserve the inviolable fundamental rights of the people; for, the fathers of the Constitution, in their fullest confidence, have entrusted them to the care of this court and given to it all the institutional conditions necessary to exercise its jurisdiction in that regard without fear or favor. The task is delicate and sometimes difficult; but this court has to discharge it to the best of its ability and not to abdicate it on the fallacious ground of inability or inconvenience…"
Charanjit Lal Chowdhury Vs. The Union of India laid down that the regime of Article 32 cannot be encumbered by determinations of legislative and executive operations which, irrespective of their legality, will have to confirm to its mandate. It further said that the wide regime of Art. 32, which gives the Supreme Court great discretion in the matter of framing its writs to suit the exigencies of particular cases, is such that a petition cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.

Article 14:
Article 14, which has been very extensively debated in the annals of India's higher judiciary, runs as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Corresponding to the equal protection clause of the Fourteenth Amendment of the US Constitution, the Article in plain words means that all persons under like circumstances and conditions shall be treated alike and will not be subject to any kind of discrimination, either in privileges conferred or in liabilities imposed. The first part of the Article is a declaration of equality of the civil rights of all persons, and the second part ensures equal protection of law to all persons in the enjoyment of their rights and liberties without discrimination or favoritism. As Justice K. Subba Rao explained in Lachman Dass Vs. State of Punjab , "Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances."
The Article does not forbid legislative classification, nor does it take away from the State the powers to develop convenient categories for purposes of police, tax or eminent domain laws, or for purposes to ensure public health, safety, morals, in short, the general welfare of the people. But they must be based on reasonable grounds of distinction. It does not allow class legislation, or arbitrary selections. Justice K. Subba Rao explained in Lachman Dass Vs. State of Punjab: "It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification may gradually and imperceptibly deprive the article of its glorious content… the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification."
Article 14 does not require things that are different in fact to be equal in law. But there must exist some reasonable condition to rationalize the difference. Class legislation or administrative actions discriminating in substance and in effect some citizens against others would be unconstitutional. Law for the purposes of Article 14 includes, as defined in Article 13 of the Constitution, any order, notification and executive order. The Article also applies equally to substantive and procedural laws. In order to pass the test, every law and rule of procedure must fulfill three conditions: (1) The classification must be based on perceptible attributes to establish its dissimilarity from what is being left out from the grouping. (2) Those attributes must be relevant to the purpose for which the classification is being made. (3) Every rule of procedure must ensure that all participants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defense with like protection and without discrimination. In other words, the classification has to be examined from two points of view: (1) Does it admit of the possibility of any substantial discrimination, and (2) does it impinge on a fundamental right guaranteed by the Constitution? If the answers to these questions were in the affirmative, the classification would be impermissible under Article 14. The State which is forbidden to discriminate between persons includes the government and parliament of India and the States and all local or other authorities within the territory of India or under the control of the government of India.
The Supreme Court very neatly summed up all these principles in its decision on Union Government's reference on the Special Courts Bill., 1978. The principles themselves had developed through a long parade of cases involving contentions around the obligation under Article 14. I refer to some of the important cases in the footnote.
In Maneka Gandhi Vs. Union of India, Chief Justice M. H. Beg explained that the validity of every executive as well as legislative action is tested against the principles of Articles 14, 19 and 21. The criterion that underlies the test had already been spelt out by the majority in E. P. Royappa Vs. State of Tamil Nadu: "From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."
Justice Bhagavati explained the implication of this on any procedure under the law in Maneka Gandhi Vs. Union of India: "Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied." Referring to the decisions in Express News Papers, Sakal Papers, and R. C. Cooper Vs Union of India, Justice Bhagwati further pointed out that it is the substance and the practical result of the State action which will determine its validity by the standards of Article 14 rather than the form and the object, as it had so far been fashionable under the "pith and substance doctrine."
After making a thorough audit of case law on Article 14, Chief Justice S. R. Das explained in Ram Krishna Dalmia Vs. Justice S. R. Tendolkar that a law would be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. But in order to sustain the presumption of constitutionality the court must take into account matters of common knowledge, common report, the history of the times and every state of facts that can be conceived of. The presumption of constitutionality of a classification cannot be carried to the extent of holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or groups to hostile discrimination. Although a discretionary power is not necessarily a discriminatory power, if it appears that a law or an executive action is arbitrary in the sense that it does not follow any rational principle or policy to justify differentiation, the Court will strike it down. Chief Justice S. R. Das had the occasion to make few more points about Article 14 in Basheshar Nath Vs. Commissioner of Income Tax, Delhi and Rajasthan. In paragraph 14 of the judgement, he explained that Article 14, which does not directly confer any right on any person, is an admonition addressed to the State whose compliance is the measure of the fundamental rights, which every person within the territory of India is to enjoy. The Article does not offer any relaxation on the restrictions imposed by it in the manner some other Articles like 19 do. Thus, the right to equality before the law is comprehensive to the extent that it does not admit any exception, even when the effected person is ready to waive the obligation of Article 14. Chief Justice Das illustrates the point thus: "If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that 'true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it.' I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit… Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State."
Finally, with regard to the relationship of Articles 14 and 19 with Article 32, Chief Justice Chandrachud pronounced in Minerva Mills Ltd., Vs. Union of India that without their effectual guidance "Article 32 will be drained of its life-blood."

Lest these lofty principles of the Indian Constitution, as also their erudite interpretations by India's highest judiciary, should become so much froth and foam - the stuff of impotent discussion, with no power over the forces of chaos and arbitrariness - the Supreme Court cannot permit the NHRC to destroy its mandate under the restrictions which it has imposed. The "flagrant violation of human rights on a mass scale", as confirmed by the CBI's report and as demonstrated by further evidence we offer, cannot be examined within the straight-jacket of a shrunken scope, that would restrict itself to "cremations only", to "the given number of 2097 bodies" and to the "location of Amritsar district". The Supreme Court must recognize that this view of its mandate, which that body has suddenly come up with, is untenable when held against the crying requirements of justice in this case, but is also completely contemptuous of the established facts and the fundamental legal principles on which this matter stands.
The right to restitution under India's international obligations:
As we earlier noticed, both the Supreme Court and the National Human Rights Commission have made repeated references to India's obligations under UN Conventions and other international human rights instruments. The Supreme Court has ruled that the principles contained in these resolutions are enforceable and that the claim of sovereign immunity has no meaning against established infringement of fundamental rights of citizens by public servants.
Before we consider the meaning of sovereignty in comparison with the rights of the people and international human rights regime, let us first be clear on the dimensions of India's international obligations in the present context. The following declarations and instruments have the force of customary international law, binding on India by the dint of purposeful accession: The UN Charter of 1945, 1948 Universal Declaration of Human Rights, also called the Magna Carta of Mankind and described by 1968 proclamation of Tehran as a "common understanding of the people of the world concerning the inalienable and inviolable rights of all members of the human family," the International Covenant on Civil and Political Rights, which India acceded on 10 July 1979. India has also signed, on 14 October 1997, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India has yet to ratify the Convention.

INDIA'S OWN STAND:
Without entering into a broad discussion on these instruments, we shall consider their mandate and the mechanisms with reference to India's obligations in the matter of "flagrant violation of human rights on a mass scale" in Punjab, disclosed by the CBI's report. India's own stand, as we know from its periodic reports to the Human Rights Committee under Article 40 of the Covenant, is as following: "In essence, India's approach to the observance, promotion and protection of human rights has been characterized by a holistic, multi-pronged effort. Primarily, this effort has revolved around the following constituent elements: (a) creation and strengthening of an institutional framework; (b) an effective network of mutually reinforcing safeguards both within and outside the institutional framework, buttressed by a policy of regular review and strengthening of safeguards; (c) a policy of transparency, responsiveness and dialogue with domestic and international non-governmental organizations, adherence to major international human rights instruments and cooperation with the United Nations human rights machinery…"
About the legal status of the Covenant, the Indian report maintains it to be self-executing for the reason, as it explains at great length, the rights and freedoms reflected in it are already guaranteed by the existing provisions of Indian Constitution, other legislative and institutional remedies.
In the relevant period, Punjab was under a "sustained campaign of terrorism and violence" and had been brought under the Central rule for the first time through a Presidential notification issued on 6 October 1983. With the induction of the army in early June 1984, the Armed Forces Special Powers Act was introduced, withdrawn after Rajiv-Longowal Accord in July 1985. Once again because of the unabated militant crimes, the elected government of the Akali Dal was dismissed in October 87 and the President's rule imposed. Although a State of Internal Emergency was never formally proclaimed, in spite of the 59th amendment of the Constitution in March 1988, special legislation like amendments 24 and 60 of the National Security Act and the Terrorist and Disruptive Activities (Prevention) Act, 1985, which we earlier examined, were introduced with the specific reference to the terrorist menace in Punjab. In February 1992, the Congress Party won the parliamentary and the State Assembly elections, boycotted by all the major Sikh political parties, and formed a State government under Beant Singh. The elections themselves had been conducted under the army's supervision. Democracy had supposedly been restored. But Punjab witnessed the most ruthless period of counterinsurgency in the next few years, with all the draconian laws remaining in force.

PRINCIPLES AND PRACTICES OF NON-DEROGATION:
As we already know, the right to life under Article 21 of the Constitution, as a compendious guarantee, cannot be taken away outside the legal procedure even in a state of Emergency which Punjab, without a formal declaration, had witnessed. Responding to the questions about why the derogation from fundamental rights implicit in the special legislation in force in Punjab was not notified to the Human Rights Committee, as it was required to under Article 4 of the Covenant, the government had said that under the Indian Constitution the fundamental rights to life and liberty could not be suspended even during an Emergency. The special statues aimed to combat terrorism and to protect the life and property of ordinary citizens had been enacted by a democratically elected Parliament, with all the necessary safeguards and subject to judicial review. There were judicial remedies against individual and isolated aberrations, including procedures for apprehension and punishment for such perpetrators of human rights violations.
The principles of non-derogation in a State of Emergency and the standards of monitoring to ensure that they are observed, under international human rights law, are well settled. In August 1977, the Sub-Commission on Prevention of Discrimination and Protection of Minorities had initiated a thorough study of this issue under Mrs. Nicole Questiaux. After several years of work, the report was submitted in 1982. The Sub-Commission endorsed the recommendations contained in the report and in 1985 and the Economic and Social Council authorized the appointment of a special rapporteur, Leandro Despouy with the mandate to continuously monitor the compliance of the internal and international rules that maintained the legality of a state of emergency and also to analyze the question of expanding the non-derogable core of human rights in conformity with the current case law. After twelve years of work, the Sub-Commission requested the Special Rapporteur to submit his final conclusions and recommendations by updating the contents of Mrs Questiaux's report and incorporating the later developments and the activities of the international monitoring bodies. The task was completed in June 97.

THE MEANING OF THE STATE OF EMERGENCY:
As the report explains, the state of emergency encompasses the whole range of situations including "state of alert", "special powers", "curfew", etc., resulting from a serious crisis of the sort affecting the population as a whole, which involve restrictions on the exercise of human rights beyond those applicable in normal circumstances. International war, internal armed conflicts, as also the states of tension or domestic disturbances are covered. This is the meaning of public emergency in Article 4 of the International Covenant on Civil and Political Rights, Article 15 of the European Convention on Human Rights, and Article 27 of the American Convention on Human Rights. The state of emergency in this sense belongs firmly to the field of law, in which the conditions which call for it, the measures taken to deal with them, the duration for which they apply as well as the rules of the game must clearly be enumerated, proclaimed and notified, not only to inform the effected population, but also the member States of the United Nations and its monitoring agencies. Thus, emergency does not imply temporary suspension of the rule of law, nor does it allow discretionary exercise of authority. The end of a state of emergency, which can never be prolonged for speculative and abstract purposes such as "national security" or "latent subversion", must also be proclaimed and notified. The fundamental rights under the Covenant, which the State will not derogate from in a emergency situation, include:
the right to life, the prohibition of torture and slavery, non-retroactive nature of criminal law, the right to recognition as a person before the law, freedom of conscience and religion. These non-derogable rights have since been expanded to include children's right to special protection, the remedy of habeas corpus, due process and the right to self defense.

THE RIGHT TO LIFE: THE MECHANISM OF PROTECTION:
The most important of all is the right to life. As the fourteenth report of the special rapporteur on summary and arbitrary executions, submitted in 1996, informs the States: "the right to life is absolute and must not be derogated from, even under the most difficult circumstances. Governments must respect the right to life of all persons, including members of armed groups, even when they demonstrate total disregard for the lives of others." The violations of this right, which come within the purview of the rapporteur and calls for his action, include: death threats by State officials or others cooperating with or tolerated by them, deaths in custody from torture, neglect or use of force, deaths due to the use of force inconsistent with the criteria of absolute necessity and proportionality, breach of the obligation to investigate alleged violations and to bring those responsible to justice, breach of the obligation to adequately compensate the victims. The obligation to carry out exhaustive and impartial investigations into allegations of violations of the right to life, to identify, bring to justice and punish the perpetrators, to grant compensation to the victims and their families, to take effective measure to avoid future recurrence of violations is also absolute.

THE BINDING OBLIGATIONS:
Victims right to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being, which presuppose thorough investigation. The responsibility to fulfil this right continues to exist, irrespective of changes of government, and in cases of people who have disappeared the investigations must continue until there remains any uncertainty regarding their fate. Any financial or other compensation paid to the victims or their families before such investigations are initiated or concluded, would not exempt governments from this obligation. To fulfil these obligations, all States should have the necessary legislation in conformity with Article 8 of the Universal Declaration, Article 14 of the Covenant and Articles 8 and 21 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in its resolution 40/34 of 29 November 1985. These obligations are binding also under Principles 34 and 35 of the Body of Principles for the Protection of All persons under any form of Detention or Imprisonment, Articles 9, 10, 13 and 19 of the UN declaration on the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly on 18 December 1992, and Articles 2, 5 and 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

THREE LEGAL RIGHTS OF VICTIMS:
Following the Vienna Declaration and Program of Action, which requires all States to investigate every complaint of enforced disappearance and to prosecute its perpetrators, Louis Joinet, Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, compiled a report on the principles for the administration of justice. The report discusses the victims' legal rights under three broad principles: (1) the right to know, (2) right to justice and (3) right to reparations.

THE RIGHT TO KNOW:
The right to know belongs not only to individual victims and their families, as the right to truth about what happened, but also to the social collective, to draw on history to prevent recurrence of evil and to preserve the knowledge of oppression as part of its heritage. It is only from such knowledge that it would ever be possible to dismantle the machinery that allowed criminal behavior to become routine administrative practice.

THE RIGHT TO JUSTICE:
The right to justice means that all victims are able to assert their complaints and receive fair and effective remedy, including trial and punishment of their oppressors. This entails clear obligations on the State, to investigate, prosecute and punish the guilty. These obligations relate to all persons cited in allegations of human rights violations, whether they ordered them or actually committed them, acting as perpetrators of accomplices, and whether they are public officials or members of quasi-governmental or private armed groups with any kind of link to the State, or of non-governmental armed movements having the status of belligerents. Whereas the jurisdiction must cover all violations, the focus as a matter of priority must be on those violations, which constitute serious crimes under international law. All expenses incurred by victims, their relatives and witnesses should be borne by the State. If the national courts are not capable of handing down impartial justice, then the complaints must attract universal jurisdiction, either through an ad hoc body like the tribunal established to deal with violations in former Yugoslavia and Rwanda, or a standing international criminal court, as proposed by the Rome treaty signed in July 1998.

THE RIGHT TO REPARATION:
The right to reparation also includes individual measures and collective measures. On the individual basis, victims including their relatives and dependants must receive reparation for all injuries suffered by them by the standards of Theo Van Boven report. Restitution means victims are able to return to the state of being, as close as possible, before violations occurred. They must receive compensation for physical and mental injury, including lost opportunities, defamation and legal costs. Their rehabilitation must include medical care, including psychological and psychiatric treatment.
From the stand point of the collective, reparation means public recognition by the State of its responsibility, commemorative ceremonies, guarantees of non-recurrence, dismantling of the repressive machinery and disbandment of the armed forces that carried out the crimes, removal from office of senior officials implicated in serious violations.
These standards of reparation had already been set in the landmark judgment of the Inter-American Court of Human Rights, involving the disappearance of Valasquez Rodriguez and two others from Honduras, delivered way back in July 1988, which have since guided the Working Group on Enforced Disappearances. The Honduran case of disappearance has so much in common with the patterns of violations following police abductions in Punjab, and the judgment of the court so helpful to the matter before the National Human Rights Commission, that we shall briefly recount its main points.

VALASQUEZ RODRIGUEZ CASE:
According to the petition moved by Inter-American Commission on Human Rights, a joint team of National Office of Investigations (DNA) and G-2 unit of the Honduran army forcefully abducted Manfredo Valesquez and two others in the afternoon of 12 September 81. Valesquez was a student and suspected of violent political crimes. Several eyewitnesses corroborated their abduction, illegal detention and harsh interrogation from 12 to 17 September. On 17 September Mandredo Valasquez was segregated from others and taken to a different interrogation center. The security forces responsible for his abduction denied his custody.
The Secretariat of the Commission received the information in October 1981 and after exhausting all the avenues to pursue the case with Honduras government, moved the Inter-American Court of Human Rights in April 1986. The petition invoked the right to life, right to human treatment, and right to personal liberty. The government of Honduras tried to delay the matter by claiming that its own investigations were on and it was facing difficulties in tracing the witnesses who could testify against suspected culprits. After waiting for some time, the court refused to stall the proceedings any further and began to record the evidence.
A former member of the army testified about the abduction and disappearance. Valesquez had been under surveillance for some time before he was kidnapped in an operation by members of his unit in civil clothes, in Toyota pick-up wagons, their glass tinted, without registration number plates. In the course of the abduction, Valesquez was shot in his leg, either intentionally or by accident. He was then taken to a barrack under the army, and tortured under interrogation. Later, on the orders from the superiors, Valeqeuz was killed with a knife, his body dismembered and buried in different places. Another witness who had also been illegally abducted and tortured in the same interrogation center, to be later released, deposed to say that he had seen Manfredo Valasquez in an adjoining cell through a hole in the door. Valasquez had asked for help. Later, this witness found out from a Sargent that Valasquez had been turned over to the member of a different Battalion to be executed.
The government tried to discredit these witnesses by insinuating that they were ideologically committed, were themselves facing criminal charges, lacked in loyalty to their country, etc. The court ruled the objections to be unacceptable. The court also relied on common patterns and observations on the current human rights situation in the country to give its findings. The court decided that in the period from 1981 to 1984, between 100 to 150 persons had disappeared, many never to be heard of again. Those disappearances followed the same pattern of kidnapping by armed men in civil clothes in vehicles without registration plates, and acting with apparent impunity. Asked by relatives or lawyers, the authorities invariably denied knowledge of the detentions, even when the victims were later released.
The court concluded that Honduran officials had been carrying out and tolerating a practice of disappearances. Manfredo Valesquez also became a victim within the framework of this practice. The government of Honduras failed to guarantee his human rights.
The court announced that the power of the State was not unlimited, not it could resort to any means to attain its ends. The State was subject to law and was also responsible for the acts of its agents, even when they acted outside the legal framework or the sphere of their authority. The State of Honduras was therefore responsible for the involuntary disappearance Manfredo Valasquez Rodriguez and must pay damages and compensation. In a second order made on 21 July 89, the court awarded compensatory damages, also deciding to supervise the indemnification until the money had been paid. Reparation of harm brought about by the violation of an international obligation consisted in 'full restitution'('restitutio in integrum'):
· including the restoration of the prior situation, (here hardly feasible, alas), the reparation of the consequences of the violation, punitive damages, indemnification for patrimonial and non-patrimonial damages, emotional and moral harm. The court ruled that the defects, imperfections, deficiencies or silences within the domestic law couldn't limit this requirement. We feel that the principles held up by the Inter-American Court in Valasquez Rodriguez Case should also guide our National Human Rights Commission in its adjudications on police abductions and secret disposal of corpses.

FINDINGS OF THE UN HUMAN RIGHTS MECHANISMS:
Throughout the period relevant to the matter of enforced disappearances leading to secret disposal of dead bodies in Punjab, the UN Commission on Human Rights had been receiving reports on serious, persistent and large numbers of human rights violations. The Working Group on Enforced or Involuntary Disappearances, established in 1980, reported large number of enforced disappearances for which it held the Punjab police primarily responsible. The Working Group also held that its officers acted with virtual impunity, disobeyed judicial orders, even ignored writs of habeas corpus and intimidated family members of disappeared persons to refrain from making complaints. The Group's 1996/97 report also mentioned the disappearance of Jaswant Singh Khalra after he filed the petition regarding illegal cremations in the High Court, also alleging that many of the cremated had been arrested by the Punjab police.
The government of India turned down an application by the Working Group to visit the country so as to discuss the matters with the competent authorities and to meet with the representatives of the families of the disappeared. The representatives of the Indian government told the working group that "given the fact that the allegations of disappearances have drastically fallen in the last three years, coupled with the government of India's commitment to investigate the old cases", the suggestion of the Working Group regarding a visit to India is "inappropriate and unnecessary." The government also stated that the matter of illegal cremations was now before the Supreme Court, which had instituted an inquiry by the Central Bureau of Investigation. The report concluded with the observation that under Article 14 and 7 of the UN Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly on 18 December 1992, the government of India was under the obligation to "prevent, terminate and punish all acts of enforced disappearance."
The 1997 report by the Special Rapporteur on Torture Nigel S. Rodley renewed his "outstanding request for an invitation to visit the country...", whose refusal was a matter of concern.
The 1997 report focused on widespread and systematic use of torture by the Punjab police. It said: "By letter of 28 April 1997, the Special Rapporteur informed the Government that he had received reports indicating that the use of torture by police in Punjab was widespread. The methods of torture reported include beatings with fists, boots, lathis (long bamboo canes), pattas (leather straps with wooden handles), leather belts with metal buckles or rifle butts; being suspended by the wrists or ankles and beaten; kachcha fansi (suspension of the whole body from the wrists, which are tied behind the back); having the hands trodden upon or hammered; application of electric shocks; burning of the skin, sometimes with a hot iron rod; removing nails with pliers; cheera (forcing the hips apart, sometimes to 180 degrees and often repeatedly, for 30 minutes or more; and the roller method (a log of wood or ghotna (pestle for grinding spices) is rolled over the thighs or calves with one or more police officers standing upon it); and insertion of chili peppers into the rectum."
In the same period, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, appointed by the Commission on Human Rights in August 1982, had also been reporting widespread practice of arbitrary executions carried out by the security forces. The last annual report concludes that "despite the existence of legal provisions for the prosecution of human rights violators" there was de facto impunity in India. The Rapporteur also reiterated his interest in visiting the country, which he had already expressed in three earlier letters.

A FACTUAL APPRAISAL OF INDIAN POSITIONS:
In order to determine India's international human rights obligations, we must appraise these exchanges between the representatives of the Indian State and the United Nations, and the solemn pledges taken on such occasions, and set them against the grim facts that have already been established before the Supreme Court through the CBI's investigation report, further records of illegal cremations and victim-testimonies from the extensive survey undertaken by the Committee. The government of India told the Working Group on Enforced or Involuntary Disappearances that the courts foresee and provide compensation to victims of involuntary disappearances, as part of the public law regime in the country. At the same time, it maintained that "allegations of disappearances have been made concerning persons who have actually been exfiltrated across the border for training in subversion. These can in no circumstances be considered cases of disappearances and no investigation can be undertaken…"
The CBI's report on illegal cremations of supposedly unclaimed and unidentified bodies, and now the further records of similar cremations in other districts of Punjab leave no doubt as to what actually happened to the 'disappeared'. In these circumstances, the order of the National Human Rights Commission to exclude the issues of enforced disappearances and extra-judicial executions altogether, and to limit the inquiry to the technicality of cremations for the numbers cited in the CBI's report for one district in Punjab would not only contradict the mandate of the UN Conventions and Declarations but also completely belie India's official professions before the UN agencies responsible for monitoring its obligations.

SOVEREIGNTY IN TRANSITION AND UNIVERSAL JURISDICTION OF HUMAN RIGHTS:
In D. K. Basu Vs. State of West Bengal, the Supreme Court held that the claim of sovereign immunity has no meaning against established infringements of fundamental rights of citizens by public servants. On this view, 'sovereignty' is something embedded in the common will of the people, which does not tolerate abuse of State power.
The idea that sovereign authority automatically become illegitimate when it oversteps certain permissible limits in the course of policing or repressing its people - that idea is not new to human consciousness. As Indians, we are familiar with Vidura's counsel in Mahabharata: "Improper conduct under the confidence that 'I have gained my kingdom' would not pay... A king who terrorises people, would be rejected by them no matter what the magnitude of his possessions and his might. An unjust king gets destroyed the same way, as clouds get scattered by strong wind. His kingdom would shrink like a piece of leather on fire."
In the modern context, the question whether people have rights beyond what the State deigns to grant them, has been answered, at least in idealistic terms, in the sense that all the institutions, in the last analysis, owe their allegiance to constitutions which the people themselves are supposed to create. It is assumed that the social purpose of sovereign entities is to ensure the well being of their people and to provide them protection from the threats to their fundamental rights. It follows that, when they persecute or constrain their people beyond accepted legal limits, they automatically forfeit their legitimacy. We may add that, by so doing, they also lose the qualification to protect their people from external threats, for their 'protegees' are already being threatened and abused internally. Actually, to put his doctrine on a firm basis, we must extend the meaning of 'sovereignty as a derivative of common consent' to every living human being - to every citizen of the Earth, regarded as a universal realm, to which ultimately our allegeance should go. But this is precisely the spirit that underlies the principle of universal rights, enshrined in the UN declarations and binding on all member States. These declarations and instruments lay the positive basis of an understanding of 'universal rights' and for their defence by all UN-adhering States.

THE TRUE REFERENT OF SOVEREIGNTY:
The rights to life, freedom from torture, slavery and genocide are held as sacrosanct - as rights so basic that their infringement should call for universal accountability, i.e. accoutability before the international community. The implication is that whereas the States, as social constructs built around a social purpose, remain the contracting parties, the referent of sovereignty in international law are the people who live within them. The Universal Declaration of Human Rights makes the point in an unobtrusive language when it says the basis of State's authority is the will of the people. This means that respect for human rights and popular consent are the essential constitutive elements in any legitimate claim to sovereignty. And there is another consequence: as the basic international conventions require the contracting State parties to ensure within their legal systems effective remedies against the violation of these principles, the dividing line between the domestic and international law inevitably - and fortunately - tends to become blurred. As this line erodes, the principle of non-intervention must also weaken.

EFFECTS ON THE PRINCIPLE OF NON-INTERVENTION:
The June 1997 report of Leandro Despouy, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, says that the shift in the area of human rights towards a new, truly universal vision, with the focus squarely on human beings, and less emphasis on the leading role traditionally by the State, is one of the most revolutionary changes of the century. "At present, the States' legitimacy essentially resides in the way they enable individuals and peoples effectively to enjoy their fundamental rights and freedoms." The report goes on to declare: "Thus, the eventual recognition of the individual as a subject of international law highlighted the major transformations that had taken place, in the sphere not only of international legal relations but also of international relations in general. Nowadays, the concept of "non-interference in domestic affairs" has
become blurred and lacks legitimacy when human dignity is at stake. The
most conclusive proof of this assertion is the 'erga omnes' nature ('valid for all') of the obligations deriving from the human rights treaties and conventions. The norms they enshrine apply to all and possess, moreover, a dual dimension: The obligation to comply with the agreement and to object if others fail to do so…"
The point was much more dramatically made by former UN General Secretary Javier Perz de Cuellar when he said: "The case for not impinging on the sovereignty, territorial integrity, and political independence of States is by itself indubitably strong. But it would only be weakened if it were to carry the implication that sovereignty… includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection… It must first of all be recognized just how revolutionary an idea this is… Indeed, does it not call into question one of the cardinal principles of international law, namely, the obligation of non-interference in the internal affairs of States?"
The point was made with much rhetorical flourish. The duty that on the shoulders of the international community - namely, to stop human rights abuses if State institutions are unable or unwilling to do so, - that duty is indeed an inescapable corollary of currently on-going harmonisation between domestic and international law on human rights.

HUMANITARIAN INTERVENTION & THE QUESTION OF IMPUNITY:
In the framework of the Universal Declaration, sovereignty ceases to exist as a binding legal concept. It only remains a political construct whose meaning is contextual and the limits are subjective. India's intervention against the Pakistani forces in 1971, which resulted in the creation of Bangladesh, is cited as a positive case of humanitarian intervention.
Article 7 of the Charter of the International Military Tribunal, also called the Nuremberg Tribunal, established by the four Allied Powers to try war criminals at the conclusion of the Second World War, provided that:
"The official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment." Explaining the principle, the Tribunal ruled that "individuals have international duties which transcend the national obligations of obedience imposed by the individual state. . . The principle of international law, which under certain circumstances protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law". The Charter of the Nuremberg Tribunal, as also its judgment, was unanimously endorsed by the General Assembly of the United Nations through the Resolution 95 of 1946. These principles are also the basis of the Conventions which established the ad hoc international tribunals for the former Yogoslavia and Rwanda. And now the Rome Treaty for a parmanent International Criminal Court (adopted in July 98 by 120 out of 160 countries represented) visualizes the establishment of a permanent judicial body which will bring to justice those responsible for "the most serious crimes of international concern", including crimes against humanity, without any reference to nationality, when domestic justice systems fail to do so.
Of course, this novel view of international human rights obligations which impinges on traditional notions of State sovereignty (and which was also upheld by House of Lords' 24 March 1999 judgment about Pinoche's extradition to Spain in Regina Vs. Bartle) is most unpalatable to those who are affected by it, and it is likely to meet with stiff resistance.

UNIVERSAL JUSTICE & THE STATIST BIAS: CONTRADITIONS IN THE UN REGIME:
From the psychological standpoint, this is quite understandable defensive reaction - it is the usual answer of threatened narcissism, the biting back of privilege under attack. But, strangely, there seems to exist a vague and awkward sympathy for this reactions, even in the international bodies actually responsible for implementing these obligations.
The very same country which once led the humanitarian intervention to liberate Bangladesh, is now barring the "UN human rights mechanisms" from study the problems by directely interacting with the concerned officials and the victims. To fend off the persistent inquiries about its human rights record, India has also demanded that the 'UN human rights mechanisms' must also investigate the violations perpetrated by terrorism. That may sound fair, but when India raised this issue in 1993, the counterinsurgency operations in Punjab were at their peak. They were targeting not so much the armed groups, which had mostly been liquidated by then, but their suspected collaborators and sympathizers in the countryside to ensure that there will be no revival of the unrest. The reaction of the Special Rapporteur on Torture Nigel Rodley was interesting, even if emblematic of the main weakness besetting the working of the United Nations - I mean the ingrainede tendency to view the problems of human rights through and from the perspective of the governments accused of violations. The Special Rapporteur said that, in his view: "the Commission would not wish to dignify the perpetrators of criminal violence by describing them as human rights violators…" The implication, even if unintended, is that there is some dignity in those who violate human rights, which the perpetrators of criminal violence cannot be allowed to share. The Special Rapporteur goes on to "recognize that India's tradition of respect for the rule of law means that serious cases of torture, in particular those resulting in death, may lead to disciplinary action and in some cases to criminal proceedings… As regards action taken against officers in Punjab and in Jammu and Kashmir, the Special Rapporteur would also appreciate learning which such actions were in response to acts within the Special Rapporteur's mandate. The Special Rapporteur is also sensitive to the "ferocity of the terrorism" faced by the government of India in those territories. He understands that the government of India is not seeking to invoke this serious problem to condone torture…"
What could this not so indirect praise for "India's tradition of respect for the rule of law" achieve, except encouraging the security forces in Punjab at that time to press on with their operations against 'the subversive elements'? Needless to say, India's State apparatus is not the only one to benefit from this kind of moral ambivalence that permeates the working of the United Nations on this vexed issue of 'sovereign prerogatives of States' and 'non-interference in the internal matters'. Before 1993 World Conference on Human Rights held in Vienna, the Asian governments met at Bangkok to adopt a declaration in which they resolved to fight against "any attempt to use human rights as a conditionality for extending development assistance." Such strong member countries of the UN as China, India, Russia, Iran, Israel, Turkey, Argentina, Brazil and scores of others across the continents remain committed to the view of 'national competence' and 'inherent right of nations' to determine their own social systems. Against such a formidable alliance for sovereignty existing within the UN regime, the proposition, articulated by Italian Foreign Minister Gianni de Michelis before the General Assembly in 1991 that "intervention that is primarily aimed at securing protection of human righ is a prerogative of the international community, which must have the power to suspend sovereignty whenever it is exercised in a criminal manner…" has an eerie ring of unreality, and remains largely a millennial dream.

SOME QUESTIONS TO THE INTERNATIONAL HUMAN RIGHTS COMMUNITY:
Does this not means that human rights as a universal concern, in spite of the declarations and conventions within the supra-national setting of the UN, is just a myth? After all, no one seems to sympathize with arguments of sovereign immunity when it comes to international commitments in the fields of science, technology, military, commerce and economy, even environment. In those areas, contracts are enforced, liabilities discharged, dues recovered, defaulters punished through stern diplomacy and, when necessary, military intervention. But in the field of human rights the evidence of heinous transgressions would not even induce a formal reprimand, except when it subserves other interests.
Is not this silent international complicity with crimes against humanity due to the fact that their victims world over are overwhelmingly the powerless and the peripheral people, the new slaves of the postcolonial era, or marginalized social critics and other subaltern groups of various kinds?
Isn't this callousness also due to the fact that the leaders of international human rights bodies are themselves closely aligned with the State interests, which think nothing of using ruthless methods against their own enemies, within and without their borders?

EVIDENCE OF HYPOCRISY:
The answers to these questions are so obvious even to casual observers in the field that it would be trite to rehearse them here. We all know the horrors that happened in the name of Cold War behind the Iron Curtain and inside the regimes which the Western countries, led by USA, spawned and sponsored the world over, including Pinochet's Chile, as bulwarks against communism. Argentina's 'dirty war' against its own citizens from 1976 to 1983 under General Videla, who kept his promise to kill as many people as necessary for the national security, had received whole hearted support from the USA. The American sponsored coups against the leftwing governments in Guatemala (1954), invasions of Dominican Republic (1965), and the interventions under President Regan in El-Salvador and Nicaragua were by no means on the side of human rights. Nor was the decade long campaign against North Vietnam, with episodes like the massacre at My Lie, an example of a war justly led. The Western support for the brutal regime of Shah of Iran did not serve the cause of democracy and human rights. It only produced the fiendish figure of Ayatullah Khomeini (also a one-time recipient of CIA subsidies0, who went on to scare the Western countries so much that they decided to put up a Saddam Hussain in Iraq, with the license to kill as many Kurds as he pleased. Throughout his war against Iran, Saddam Hussain received not just the diplomatic but also the military and economic support from the West. Even after the cease-fire in 1988, Iraq continued to acquire all those lethal capabilities, which the USA would later destroy with its own cruise missiles after Kuwait's occupation by Iraq. Now the people of Iraq must pay for these follies, even as the most retrogressive and repressive regimes in that part of the world, including Syria, continue to thrive on the Western support. Hypocrisy and double standards remain the hallmark of the western approach to human rights eight years after the collapse of the Sovient Empire in 1991. In the name of human rights, politically isolated Serbs in Bosnia or Kosovo bear the brunt of military intervention from the NATO, but the countries like Turkey, Azerbaijan, China and India, which are important to western strategic interests, as well as those outside the pale of their vital calculations like Sierra Leone in Western Africa, are allowed to get away with murder.

SOME STRUCTURAL PROBLEMS:
To complete the point, and also to understand a structural defect in the international human rights regime, we should mark the discrepancies between the charter and the organization of the United Nations. The first discernible contradiction is in the membership to the United Nations, which is open to any state that can claim the minimal requirements of sovereignty. It does not have to be a democracy or a constitutional republic, much less establish its credentials as a repository of popular will. The second visible discrepancy is between the principle of decision-making by majority, unlike the system of unanimous voting followed by the League of Nations, and the power of veto that belongs to the permanent members of the Security Council. The principle of decision-making by majority voting suggests that the preferences of sovereign states can be bounded by the mandate of the body collective. The power of veto available to the permanent members of the Security Council means that they are more sovereign than others. Ironically, the United States did not ratify the International Covenant on Civil and Political Rights until 1992. These discrepancies have decisively influenced the manner in which the mechanisms of justice have grown, or should we say have remained stunted, within the United Nations human rights regime.

FORCES OF IMPUNITY & THE INCOMPLETE STRUGGLE FOR UNIVERSAL JURISDICTION:
Way back in 1978, Mr Nicodeme Ruhashyankiko, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities had recommended establishment of a permanent international criminal court, which would have universal jurisdiction against crimes against humanity and be capable of resisting political pressure. In 1983, the Economic and Social Council commissioned a study on this subject, to be prepared by Benjain C. G. Whitaker. The report was submitted in 1985. It recommended the creation of "an impartial but respected international body with permanent authority" on the lines of Nuremberg and Tokyo Tribunals. But nothing happened, as there was no agreement, particularly among the members of the Security Council. They were all committed to protect their own client regimes, which were regularly engaging in grave human rights offences. Again in 1996, the Special Rapporteur on Extraducial, summary or arbitrary executions submitted a report strongly recommending two measures that would contribute to a more impartial and comprehensive approach to the problem of impunity. The measures were: (a) the establishment of a permanent international criminal court with universal jurisdiction over mass violations of human rights and humanitarian law; and (b) adoption of a convention, similar to the Convention against Torture, which would provide domestic courts with international jurisdiction over persons suspected of serious human rights offences.
Already, the discussions for a treaty on a permanent international criminal court had been underway for some time. On the eve of the final discussions in Rome, Amnesty International reported that China, Russia and the US were opposing the provision of an independent prosecutor capable of initiating criminal investigations on the basis of information from victims and other reliable sources without waiting for a reference either from the Security Council or UN member States. Amnesty also reported that other countries like Colombia, Mexico, India, Iran, Japan and Turkey were also taking positions that would seriously undermine the effective working of the court. Finally, when the treaty was adopted in Rome on 18 July 1998, the US voted against it along with China, Libya and Iraq, in spite of many compromises that had been made to accommodate their objections on the principle of universal jurisdiction. The treaty will become effective only after 66 countries ratify it. Even after that, the court would be able take up only those matters which the Security Council refers, except when the State, in whose territory crimes are committed or whose citizens stand accused, submit to its jurisdiction. So, with this century drawing to a close, a universal jurisdiction on human rights still remains a far cry.

SOME CONCLUSIONS FROM THE PEOPLE'S PERSPECTIVE:
What are we then to think of these 'guarantees of human rights laws', in both domestic and international spheres, which the existing apparatus of justice cannot enforce? We do not have much choice about the answer: The law that cannot curb its offenders is nothing but a travesty. A legal system which is so soft on murderers and torturers, and so sympathetic to the 'imperatives of political power', is indeed seriously diseased.
What can then be the conclusion about 'national sovereignty' in this transial stage of history, while a universal order has not incarnated yet? Again, there is little scope for hesitation: Powerful State interests would continue to put their spanners against the wheel of history, and will do all they can to slow down its progress. But there is little chance of their succeeding in reversing its direction. Transnational politics at the movement may be loaded with loathsome double standards on human rights issues. But when the abuses are well documented and the issues feelingly articulated, they cannot be altogether extinguished. Citizens initiatives and local campaigns for accountability and justice can today reckon on a larger international audience and support to keep them blazing than it would have been conceivable even twenty year ago. Amnesty international and other such bodies there to stay, and they will ensure that the cause of universal justice is not stifled under the weight of cynicism, national self-interest and raison d'etat.
The final outcome will depend on the extent to which the volunteer initiative and grass-root organizations succeed in developing their human rights agendas. The ultimate goal, fully consonant with the deeper historical trends of our times, is to bring about a major shift or 'relocation' of State authority, so as to restore its 'human face' and to bring it within the grasp of the people. The redefinition of 'national sovereignty' would then follow naturally, along with the needed legal adjustments.
This is a daunting task. Basically, it is a matter of educating the people in civic self-reliance; of insisting on the supremacy of ethics over law, and of law over State sovereignty. It is also a fight aiming at rolling back some of the prerogatives of the juggernaut of State, which has been crushing so many rights and so many human values under its advance in the course of the last centuries, but which has now outgrown much of its usefulness. As Alexander Wendt suggests, and as common sense confirms, sovereignty is neither a once-and-for-all creation nor a sacred 'principle', floating up there, in the heaven of ideas, beyond the pale of change and critique. It is an on-going accomplishment, born of practice, supported by practice, and no better or worse than actual practice makes it to be. It is also rooted in a people's culture, and integral to their structure of thought. Therefore, the only way of changing it is through social action combined with 'propaganda', taken in the noblest sense of the word.

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