1. Order Dated 09/10/2006

2. Order Dated 15/05/2006

3. Order Dated 08/03/2006

4. Order Dated 11/11/2005

5. Order Dated 4/10/2005

6. Order Dated 11/11/2004

 

 

 

BEFORE
THE NATIONAL HUMAN RIGHTS COMMISSION
NEW DELHI


Reference Case No.1/97/NHRC
Dated: 9th October, 2006
CORAM:
Dr.Justice A.S. Anand, Chairperson
Dr.Justice Shivraj V. Patil, Member
Justice Y. Bhaskar Rao, Member
Shri R.S. Kalha, Member

ORDER

This order is in continuation of the order made by the Commission on 11th November, 2004.

The Commission noticed in its order dated 11th November, 2004:

“Learned counsel for the parties have agreed that as a first step, the Commission may consider the cases of such of the deceased persons who were admittedly in the custody of the police prior to their death and were cremated in police districts of Amritsar, Majitha and Tarn Taran, for the purpose of awarding ‘compensation’ to their next of kin. Agreeing with the submissions of learned counsel for the parties, the Commission has heard arguments on the following questions:

(a) Whether any of the deceased who were cremated in police districts of Amritsar, Majitha, Tarn Taran by the police were admittedly in the custody of the Punjab police prior to the time of their death and cremation?

(b) Whether the State of Punjab is not liable to pay compensation to the next of kin of those deceased, who were admittedly in the custody of the police prior to their death and cremation?

If the answer to (b) is in the affirmative, then

(c) What should be the quantum of compensation payable to the next of kin of those deceased?”

After hearing learned counsel for the parties and taking note of various legal pronouncements, the Commission observed:

“On the basis of the settled law, we, therefore, unhesitantly hold that human rights of 109 persons, who were admittedly in the custody of the police immediately prior to their death, stood invaded and infringed when they lost their lives, while in custody of the police thereby rendering the state vicariously liable. There was a very great responsibility on the part of the police and other authorities to take reasonable care so that citizens in their custody were ‘safe’ and not deprived of their right to life as in such cases “the duty of care on the part of the State is strict and admits of no exception”. The State of Punjab is, therefore, accountable and vicariously responsible for the infringement of the indefeasible right to life of those 109 deceased persons as it failed to “safeguard their lives and persons against the risk of avoidable harm”. The first question is answered accordingly.”

After answering the first question, as noticed above, the Commission answered the second question, thus:

“It, therefore, follows that this Commission would be totally justified and, in the facts and circumstances of the case, duty bound and obliged to redress the grievances of the next of kin of the deceased by award of monetary compensation for infringement of the indefeasible right to life of deceased and apply balm to their wounds. This claim, as has been noticed in an earlier part of the order is based on the principle of strict liability. The award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is an appropriate remedy available in public law jurisdiction for repairing the public wrong. The NOK of the deceased, therefore, must receive the amount of compensation from the State of Punjab which is vicariously liable and cannot be absolved of ‘its responsibility of safe keeping of the citizen in its custody. We accordingly hold the State of Punjab liable to make monetary amends for the infringement of the right to life of the deceased, who were in the custody of its police prior to their death by paying compensation to NOK of the deceased. The second question is answered accordingly.”

It was further observed:

“It is clarified that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for infringing the right to life of the deceased by any act of omission or commission, lest it should prejudice any of the parties in the investigation being carried out by the CBI to determine the culpability under orders of the Hon’ble Supreme Court. In fact, the grant of this monetary relief by us is without prejudice to the rights of the parties.”

The Supreme Court in the order of remit dated 12th December, 1996 referred to the fifth and final report filed by the CBI, which indicated that 585 fully identified bodies, 274 partially identified bodies and 1238 unidentified bodies (total 2097) had been cremated by the Punjab Police in the three crematorias of Amritsar, Tarn Taran and Majitha. The Commission, therefore, commenced the inquiry regarding the cremation of 2097 bodies in the those crematorias. During the proceedings before the Commission, the CBI was asked to file the lists of the fully identified, partially identified and unidentified bodies. Lists A, B and C were accordingly filed. List A (582 fully identified bodies); List B (278 partly identified bodies) and List C (1237 unidentified dead bodies).

While in cases of identified bodies, the next of kin of the deceased could be provided with same monetary relief, if it was found that the cremation of the bodies was done by ignoring the legal mandate/statutory rules etc. and overlooking the sanctity of the dignity of the dead and sentiments of the families of the deceased, it was the cases of partially identified or unidentified bodies which required further probe. The Commission, therefore, directed all the parties to assist it in identifying as many as possible out of the unidentified (List C) or partially identified (List B) as possible so that their next of kin could be provided with some monetary relief also.

Learned counsel for CIIP during the course of inquiry filed a further list of 163 persons out of List B and C (partly identified and unidentified dead bodies) stating that those deceased also had now been identified and would fall in the same category as the identified deceased mentioned in List A. The State of Punjab, after verification accepted that out of the list of 163 persons submitted by CIIP, identity of 111 persons out of List B and C, had been verified and that those deceased would qualify to be placed in the same class of persons as mentioned in List A. With regard to the remaining 52 bodies, out of the list of 163 persons submitted by the CIIP, the State of Punjab stated that their particulars were still being verified. On March 3, 2005, CIIP filed yet another list of 12 persons from out of List B and C with their identifications and submitted that those 12 persons had also been identified and would also fall in the same category as fully identified persons of List A. During the hearing before the Commission on 9th September, 2005, the State of Punjab accepted the identity of 10 persons out of the list of 12 persons. Thus, it was admitted case of the parties that total number of identified bodies now stood as 703 (582+111 + 10 = 703) with corresponding reduction from List B & C. Out of the two remaining persons from the list of 12 persons, one was Amrik Singh, s/o Shri Charan Singh, CBI No. 391/56 (B). The State of Punjab submitted that his name stood already included in List A and his next of kin had already been awarded monetary relief by the Commission vide its order dated 11.11.2004 which position was not disputed by CIIP.

It was also submitted by learned counsel for CIIP that out of the List of 12 persons filed by the CIIP, one Gurbachan Singh, s/o Shri Karnail Singh, CBI No. 159/22 was, as per police record itself, in police custody at the time of his death and that his case would be squarely covered by the parameters of the order of the Commission dated 11.11.2004 relating to grant of monetary relief to next of kin of 109 deceased. This position was not disputed on behalf of the State of Punjab. Accordingly, the Commission on 9th September, 2005, directed that the next of kin of Gurbachan Singh, s/o Shri Karnail Singh, would also be entitled to receive monetary relief in terms of the order of the Commission dated 11 November, 2004 and the Deputy Commissioner, Amritsar was directed to take appropriate steps for making payment in terms of that order to the next of kin of Gurbachan Singh.

As already noticed, a total of 703 bodies out of the three lists A,B,C had been identified, However, the Commission was continuing with its efforts to get the remaining deceased of Lists B and C identified. On 9th January, 2006, a direction was issued to the State of Punjab by the Commission to make further efforts, after inspection of records with the CBI and fields visits, to identify as many more of the dead bodies out of Lists ‘B’ and ‘C’ as was possible. This exercise was undertaken and has yielded some useful results.

The State of Punjab has filed a chart detailing 580 cases of identified bodies. It was stated by the State that these identified persons were in addition to the already identified bodies, including those whose next of kin had already been granted monetary relief by this Commission vide its directions dated 11th November, 2004 and 4th October, 2005, out of lists A,B,C. Copies of the chart were supplied to learned counsel for the petitioners for verification and response, if any, as regards the identities of those persons.

During the hearing, Shri Gonsalves, learned Sr. Advocate for the CCDP stated that there was no dispute as regards the identity of anyone of the 580 bodies, identified subsequently by the police and that in its response dated 18.7.2006, the CCDP had only questioned the correctness of the procedure followed by the State of Punjab while cremating the dead bodies of all those deceased.

During the hearing on 3rd April, 2006, the State of Punjab submitted that the name of following 10 persons were appearing in duplicate in the three lists A,B and C. Those 10 persons are as follows:

Sl. No. Name of the Deceased CBI No. (1st) CBI No. (2nd)
(duplicate)
1. Dalbir Singh s/o Karnail Singh, r/o Balsaran, PS Beas, Amritsar A-160/11 C-123/154
2. Rajinder Singh s/o Pritam Singh r/o Guru Nanak Pura, Amritsar A-161/12 C-124/155
3. Vijay Kumar s/o Joginder Pal r/o Near Jwala Flour Mill, PS Islamabad, Amritsar A-162/12 C-125/156
4. Harish Chander s/o Inderjit r/o Nawa Kot, PS Islamabad, Amritsar A-163/14 C-126/157
5. Prakash Singh s/o Shingara Singh r/o Sultanwind, Amritsar A-145/9 C-115/114
6. Lakhwinder Singh s/o Sucha Singh r/o Takhu Chak, PS Sadar Tarn Taran B-30/406 B-34/411
7. Amrik Singh s/o Harnam Singh r/o Dubli PS Patti Police District Tarn Taran B-96/892 B-103/913

8. Palwinder Singh @ Sona s/o Ajit Singh (wrongly mentioned as Balwinder Singh) r/o Khalram C-187/254 B-255/38
9. Gurbachan Singh s/o Karnail Singh r/o Islamabad, PS Islamabad, Amritsar B-159/22 C-127/158
10. Lal Singh @ Lalli s/o Apaar Singh C-112/87 C-110/86

On 1st of June, 2006, learned counsel for the State of Punjab stated that apart from the 10 persons mentioned on 3rd April, 2006 as twice appearing, there were the following 28 deceased also whose names figured twice in the lists A,B and C:
Sl. No. Name of the Deceased CBI No. (1st) CBI No. (2nd)
(duplicate)
1. Pargat Singh S/o Udham Singh
R/o Marrimegha, PS Khalra A-267/37 A-278/39
2. Balbir Singh @ Gulla s/o Ajit Singh, r/o Thoru A-277/38 A-279/40
3. Raghbir Singh s/o Partap Singh r/o RansikeTale, PS Dera Baba Nanak A-233/24 B-245/27
4. Nirmal Singh s/o Mohinder Singh r/o Ransike Tale, PS Dera Baba Nanak A-234/25 B-246/28
5. Balwinder Singh @ Billu s/o Ajit Singh r/o Kakkar Kalan A-291/47 B-288/34
6. Santok Singh s/o Arjan Singh r/o Kakarkalan PS Lopoke A-289/45 A/290/46
7. Gulzar Singh @ Baba Bullet s/o Achhar Singh r/o Ghansham Pura A-571/157 C-565/319
8. Gurdev Singh @ Bhutto s/o Harbans Singh r/o Pakhode A-395/80 C-398/260
9. Randhir Singh @ Dhira s/o Mann Singh Jat r/o Mundapind A-95/5 C-104/81
10. Jaswinder Singh @ Dhamaka s/o Darshan Singh Arora r/o Shaheed Udham Singh Nagar A-93/4 C-94/76
11. Angrej Singh @ Amrik Singh s/o Channan Singh r/o Jalalabad A-392/78 B-391/56
12. Partao Singh @ Taba s/o Charan Singh r/o Sultanwind A-349/61 C-231/347
13. Kulwinder Singh @ Bittoo s/o Amrik Singh A-84/3 B-81/11
14. Rajbir Singh (in CBI List Raghubir Singh @ Ranbir Singh @ Raghu) s/o Pritam Singh. (List of 2593 cases at Sl. No.530) A-85/4 B-82/12
15. Kulwant Singh s/o Charan Singh A-480/128 (Dalbir Singh @ Kala s/o Kulwant Singh) B-484/7
16. Devinder Singh s/o Foola Singh r/o Sultanwind, Amritsar B-53/575 C-333/237
17. Gurbachan Singh s/o Narain Singh r/o Naushara Pannuan B-54/577 C-334/238
18. Ranjit Singh s/o Chanan Singh r/o Dinewal B-55/578 C-335/239
19. Gurdev Singh s/o Suba Singh r/o Biharpur B-331/54 C-222/332
20. Satnam Singh @ Shinkanja s/o Bakhshish Singh r/o Cheema B-570/89 C-566/320
21. Surinder Singh @ Shinda r/o Cheema Khudi B-572/90 C-568/322
22. Sukhdev Singh Jhamka s/o Inder Singh r/o Chamka B-79/9 B-80/10
23. Gurnam Singh @ Damaka s/o Charan Singh r/o Ram Diwali Musalmana B-549/85 B-550/86
24. Narinder Singh @ Bittu s/o Darshan Singh Jat r.o Bharath PS S.H. Gobindpur B-341/43 C-342/244
25. Manjinder Singh @ Jinda s/o Thakur Singh r/o Pakhoke, PS Sadar Tarn Taran B-396/58 C-397/259
26. Jagtar Singh @ Jagga s/o Sunder Singh r/o Dhing Nangal B-215/35 B-297/36
27. Daljit @ Jeet s/o Hans Raj Brahman r/o Bhalipur C-164/126 C-165/127
28. Manjinder Singh @ Nikka s/o Thakur Singh Jat r/o Pakhoke C-384/256 C-386/258

Thus, it would be seen that according to the State of Punjab, names of 38 deceased had appeared in duplicate in the three lists A,B and C and, therefore, the Commission was required to confine its inquiry in respect of 2059 deceased (2097-38) cremated in the three crematoria only. Learned counsel for the petitioners, after verification, did not dispute that out of the identified bodies, 38 names had occurred in duplicate as stated by the State of Punjab.

From an analysis of the chart of 580 persons (supra), considered with the police record, it was found that 38 identified bodies (description given below) were also in the “deemed custody” of the police prior to their death and cremation.
Police District – Tarn Taran

S.No. NHRC Sr. No. CBI No. Particulars of the deceased, parentage and address
1 1156 A/51/129 Harbhajan Singh s/o Fauja Singh Jat r/o Jandoke Police Station, Sadar, Tarn Taran
2 846 A/64/158 Ruldu s/o Bawa Muslim, r/o Pringri, Police Station Harike, Police District, Tarn Taran
3 420 A/73/197 Chanan Singh s/o Darshan Singh Jat, r/o Chuslewar, Police District Tarn Taran
4 248 A/93/268 Harbhej Singh @ Angrej Singh, s/o Ravail Singh Jat, r/o Dharar, Police Station Sadar, Tarn Taran
5 N.A. A/120/389 Kulwant Singh, s/o Mohinder Singh Jat, r/o Musse Police Station Jhabal, Police District Tarn Taran
6 N.A. A/128/421 Balwinder Singh, s/o Surjan Singh Mazbi, r/o Banwalipur, Police Station Sadar, Tarn Taran
7 881 A/152/589 Tarsem Singh @ Laddi, s/o Dalbir Singh Jat, r/o Bundala, Police Station Jandiala, Police District Majitha
8 1433 A/158/611 Jagir Singh @ Kulwinder Singh, s/o Jang Singh, r/o Sangatpura, Tarn Taran
9 N.A. A/255/914 Harjit Singh, s/o Gurbaz Singh Jat, r/o Majhupur, Police Station Jhabal, Police District Tarn Taran
Police District - Amritsar
10 N.A. A/76/2 Karnail Singh, s/o Ram Singh Jat, r/o Khadoor Sahib, PS Verowal, Amritsar
11 1713 A/145/9 Parkash Singh, s/o Shingara Singh, r/o Sultanwind, Amritsar
12 1713 A/146/10 Dharam Singh, s/o Shingara Singh, r/o Sultanwind, Amritsar
13 N.A. A/185/19 Manjit Singh @ Lali, s/o Didar Singh, r/o Fattu Bhila, Amritsar
14 1128 A/195/23 Beer Singh, s/o Virsa Singh, r/o Khaper Kheri, PS Chheherta, Amritsar
15 N.A. A/200/24 Dilbar Singh @ Titoo, s/o Ajit Singh, r/o Vishkarama Industry, G.T. Road, Amritsar
16 60 A/276/37 & A/278/39 Pargat Singh, s/o Udham Singh, r/o Marrii Megha, Amritsar
17 N.A. A/277/38 & A/279/40 Balbir Singh, s/o Jeet Singh, r/o Tharoo, PS City Tarn Taran
Police District - Majitha
18 N.A. A/109/8 Karnail Singh, s/o Shingara Singh, r/o Village Ghaniake Banger PS Fatehgarh Churian District Gurdaspur, Majitha
19 464 A/125/14 Gurjit Singh @ Baba Bota Singh, s/o Kunan Singh, r/o village Lushkari Nangal PS, Majitha
20 1657 A/175/18 Jagjit Singh, s/o Amar Singh Jat, r/o village Vanchari
21 N.A. A/249/27 Harbhajan Singh, s/o Sohan Singh, r/o Verka,
22 637 A/250/28 Gurmej Singh, s/o Lakha Singh Jat, r/o Pabbarali
23 211 A/266/34 Sukhdev Singh @ Sukha, s/o Amrik Singh Jat, r/o Bolian
24 774 A/324/53 Ranjit Singh @ Rana, s/o Avtar Singh, r/o village Ghanike Banger PS Fatehgarh Churian
25 442 A/377/72 Sukhwinder Singh @ Bittu, s/o Kabal Singh, r/o Chogawan PS Lopoke
26 134/1769 A/388/77 Kewal Singh, s/o Hazara Singh, r/o Dilwan, Dera Baba Nanak
27 148 A/409/85 Satnam Singh @ Retho, s/o Sher Singh Mazbi Sikh, r/o Sohian Kalan PS Majitha
28 N.A. A/445/107 Surinder Singh, s/o Dalip Singh Jat, r/o Baba Bakala
29 N.A. A/454/115 Pardeep Kumar @ Dilsher Singh, s/o Harbans Lal Pandit, r/o Bhagowal PS Sadar, Batala
30 857 A/472/123 Amrik Masih @ Gora s/o Rehmat Masih, r/o Abadi Faizpura
31 644 A/496/133 Baldev Singh @ Sabhi, s/o Karam Singh Jat, r/o Bundala PS Jandiala
32 1346 A/531/148 Gurmeet Kaur, D/o Mehnga Singh, r/o Pandori Thakhat Mal
33 488 A/557/154 Daljit Singh, s/o Kashmir Singh, r/o village Khiala
34 657 A/619/178 Balbir Singh, s/o Swaran Singh Mehra, r/o village Malakpur PS Ramdas
35 41 B/27/359 Satinder Singh @ Shindu, s/o Pritam Singh Jat, r/o Talwandi Chanchak, Police Station Patti, Police District Tarn Taran
36 1115 B/333/55 Tasbir Singh @ Tasbira, s/o Anoop Singh Jat, r/o Jhander, PS Majitha
37 828 B/591/94 Harbans Singh, s/o Narain Singh Mazbi, r/o village Gasitpura
38 541 C/191/150 Swaran Singh, s/o Dhian Singh Jat, r/o Mandranwala

The question, therefore, was whether the next of kin of these 38 persons should also be given the benefit of our orders dated 24-11-2004 and 4-10-2005.
Learned counsel for CIIP and CCDP submitted that the next of kin of the above noted 38 bodies were also entitled to be granted monetary relief at the rate of Rs.2.50 lakhs, for the reasons given in the order of the Commission dated 11.11.2004.
In fairness to the State of Punjab, we also wish to record that learned counsel for the State of Punjab, Shri R.S. Suri, did not dispute that the next of kin of those 38 deceased persons (supra) were to be treated at par with those who were covered by the orders of the Commission dated 4th October, 2005 based on the order dated 11th November, 2005 and that the next of kin of those 38 persons were also entitled to receive monetary relief in the same terms. The Commission, accordingly, held that the cases of the 38 deceased persons (supra) fell within the parameters considered by the Commission in its earlier orders of 11th November, 2004 and 4th October, 2005 and that their next of kin were entitled to receive monetary relief to the tune of Rs.2.50 lakhs each in terms of the order dated 11th November, 2004. The State of Punjab was accordingly directed to deposit the amount for payment of monetary relief for disbursement to the next of kin of these 38 persons with the concerned DM, who was directed to make disbursement in accordance with the procedures settled by the Commission in its order dated 11th November, 2004.
Thus, the resultant position that emerged was that out of the identified bodies, 148 deceased persons (109+1+38) were found to have been in the actual/deemed custody of the police prior to their death and cremation and, therefore, for the reasons stated in the order dated 11.11.2004, their next of kin were held entitled to monetary relief to the tune of Rs.2.50 lakhs each. On 12th March, 2006 the State of Punjab filed an application stating that on further analysis of the affidavits filed by the State of Punjab, it appeared that out of the chart filed by the State detailing 580 deceased subsequently identified, 42 deceased persons, detailed in that chart, also satisfied the parameters fixed by the Commission in its orders of 11th November, 2004 and 4th October, 2005, and qualified to be treated as ones in the “deemed custody” of the police, prior to their death and cremation. Besides, Mr.R.S. Suri also stated that out of the earlier lists filed by the State, three deceased persons, namely, Raghbir Singh, S/o Sh.Mohinder Singh Jat; Manjit Singh @ Manna, S/o Ajit Singh Jat and Rajinder Singh S/o Kishan Singh also fall in the category of being in deemed custody of the police prior to their death and cremation and their next of kin could be treated at par with similarly other deceased, dealt with by the Commission in its earlier orders of 11th November, 2004 and 4th October, 2005.. Learned counsel opposite did not join any issue in this behalf.

In the petition dated 29th March, 2006 filed by the State of Punjab, it was conceded that the case of Ram Singh, son of Gura Singh of Police District Tarn Taran (CBI No.276-959) also within the category of persons in the deemed custody of the police prior to his death and cremation. Learned counsel for the State of Punjab, therefore, stated that the case of Ram Singh son of Gura Singh mentioned above would also be covered under the parameters laid down by the Commission in its order dated 11th November, 2004 and 4th October, 2005. The Commission, accordingly, on 3rd April, 2006 directed that the next of kin of Ram Singh, son of Gura Singh be also paid monetary relief to the tune of Rs.2.50 lakhs. The State of Punjab was required to deposit the amount within three weeks and the concerned Deputy Commissioners were directed to disburse that relief in accordance with the procedure settled by the Commission in its order dated 11th November, 2004.

By our order dated 15th May, 2006, it was directed that the next of kin of each one of those deceased persons mentioned in the petitions filed by the State of Punjab dated 12.3.2006 referred to in an earlier part of this order, who admittedly, fell within the parameters fixed by the Commission on 11th November, 2004, would be entitled to receive monetary relief of Rs.2.50 lakhs each. The State of Punjab was directed to deposit the amount for disbursement of monetary relief with the concerned Deputy Commissioner. Thus, in all, it is seen that monetary relief at Rs.2.50 lakhs has been held payable to each one of the next of kin of 194 deceased persons (109+1+38+42+3+1), (Raghbir Singh S/o Mohinder Singh, Manjit Singh S/o Ajit Singh, Rajinder Singh S/o Kishan Singh and Ram Singh S/o Gura Singh).

Deputy Commissioner, Amritsar, vide its communication dated 3rd July, 2006 reported that besides disbursing the amount to the next of kin of Ram Singh, disbursement had also been made in 28 out of 38 cases and process for disbursement in respect of remaining 10 was in place. It was also reported that in respect of next of kin of 45 deceased persons who were also held entitled to monetary relief at the rate of 2.50 lakhs as per proceedings of the Commission dated 15.5.2006, funds to the tune of Rs.1,12,50,000/- had been deposited by the State of Punjab with the Deputy Commissioner, Amritsar for disbursement of the monetary relief to their next of kin and appropriate steps were being taken.

Thus, having dealt with the cases of the violation of human rights of those 194 persons, who were admittedly in the custody of the police ‘immediately prior to their death and their cremation’ and holding the State of Punjab accountable and vicariously responsible for the violation of the indefeasible right to life of those deceased persons who had died while being in the custody of the police and unlawfully cremated by the police and awarding monetary relief to their next of kin at the rate of Rs. 2.50 lakhs each, the Commission has now to consider the cases of the remaining dead bodies, fully or partially identified, as well as unidentified bodies which were cremated by the Punjab police in the police districts of Amritsar, Tarn Taran and Majitha to determine if there had been any violation of their Human Rights and if the answer is in the affirmative, to grant appropriate monetary relief to the next of kin of such deceased persons.


In its order of January 13, 1999 the Commission had opined:


“The Commission desires to point out that the initial burden of establishing that the cremations done by the police were so done in accordance with the procedures prescribed by law in that behalf rests upon the authorities of the State. The State Government shall also state whether in respect of each of those cremations the rules for the time being in force regulating cremations of unclaimed/unidentified bodies have been followed by the police. However, further details of the compliance with the rules and the consequence of their compliance or non-compliance shall be examined at the appropriate stage later.”

Thus, the Commission had placed the initial onus on the State of Punjab to satisfy the Commission that cremations were done in accordance with the procedure prescribed by law more particularly in the Police Rules.

Though initially only 582 bodies had been identified as the ones cremated by the State of Punjab in the three police districts of Amritsar, Taran Taran and Majitha (List A submitted by the CBI to the Supreme Court of India), the efforts of the Commission, with useful assistance from learned counsel for all the parties, the total number of deceased whose identity has by now been established comes to [(582+111+10+580)-38](Duplicate names) = Total 1245, out of the total of 2059 [2097-38 (duplicate names)] bodies cremated by the State of Punjab in the crematoria of the said three police districts.

What, therefore, now requires consideration by the Commission is the issue whether the rules and procedures prescribed by law were followed before cremation of the identified bodies in the three police districts of Amritsar, Tarn Taran and Majitha as contained in lists A, B and C and the consequence of compliance or non-compliance with the rules and procedure, keeping in view the dignity of the dead and the sensitivities of the families of the deceased and the requirements of the humanitarian law.

Following questions, thus, now require determination:

1. Did the State follow rules, guidelines, procedure and practices before cremating the dead bodies of identified persons out of lists A, B, C.?

2. If the answer to the above is in the negative, is the State not liable to make monetary amends for violating the dignity of the dead and causing distress to the next of kin of such persons and violating the acceptable standards of humanitarian law ?

3. If the answer to the above is in the affirmative, what should be the quantum of compensation payable to the next of kin of those “unceremoniously cremated?

4. What relief, if any, can be granted in respect of the unidentified bodies (List C) or partially identified (List B) cremated by the State of Punjab in the three police districts?

The State of Punjab as well as learned counsel appearing for the claimants and writ petitioners were heard on these questions.

With a view to answer the questions detailed above, one of the directions of the Commission on 9th January, 2006 to the State of Punjab was:

“…………… to file a detailed chart indicating the fact position by reference to the affidavits filed in the case in respect of each one of them giving chapter and verse from the record to indicate which of the procedural guidelines were not followed before the cremations were done in respect of those who were cremated. The State shall also indicate various steps taken by it before cremating the dead bodies with reference to the affidavits to submit the circumstances under which procedural safeguards could not be followed in those cases.”

The needful was done with copies to learned counsel opposite.
We now proceed to deal with the questions posed above.

Questions 1, 2 and 3 are inter-related and interdependent and it would be appropriate to deal with the questions together.

To answer the above questions, before we examine the rules, guidelines and procedure for cremating dead bodies, we must start on the undisputed premise that 2059 (2097-38) bodies detailed in the three lists A, B and C, filed by the CBI in the Hon’ble Supreme Court had been cremated by the Punjab Police in the three crematoria of Amritsar, Tarn Taran and Majitha. During the inquiry by the Commission, the total number of dead bodies whose identity has by now been established is 1245 (including 582 mentioned by the CBI in the List A) including 194 deceased persons whose next of kin have already been held entitled to receive monetary relief to the tune of Rs.2.50 lakh each. 663 more dead bodies have, thus, been identified out of Lists B and C, with corresponding reduction of the figures in Lists B and C as filed by the CBI in the Supreme Court, during the course of enquiry by the Commission. Out of the total of 2059 dead bodies, only 814 bodies, out of lists B and C, thus, remain unidentified.

The fact that during the course of inquiry before the Commission as many as 663 more bodies have been identified (initially List A had only 582 identified dead bodies) shows that they were capable of being identified but apparently sincere efforts do not appear to have been made by the Punjab Police to identify the deceased before they were cremated. Had sincere efforts been made by the State Police to identify the dead and locate and intimate their families or next of kin, about their death, the dead would not have been denied the right to be cremated/buried by their near and dear ones, besides the feelings and sentiments of their families and next of kin would not have been hurt. We find that there has been a serious lapse on the part of the State Police in this behalf.

According to the learned counsel appearing for the State of Punjab, dead bodies of identified as well as unidentified persons were handed over to the concerned Municipal Corporation or other local bodies for performing last rites as per the religion of the deceased, as unclaimed bodies, and proper respect was shown to the dead. It is also stated that some of the identified dead bodies were handed over to the families of the deceased for cremation / burial and those families did the needful, a factor which, however, is disputed by learned counsel for the petitioners / claimants.

The argument does not find any support from the record. No explanation, is forthcoming as to why efforts were not made to contact the relatives or trace next of kin of the identified deceased persons or justification for handing over the dead bodies to the Municipal Corporation or other local bodies. No affidavit of any official of Municipal Corporation or other local bodies has either been filed about the steps taken by them before cremation of the dead bodies.

Regarding obligations of the State/Municipal Corporation for causing burial or cremations of dead bodies, assuming the same to be unclaimed, it would be advantageous to notice some of the observations of Their Lordships of the Supreme Court in Ashray Adhikar Abhiyan Vs. Union of India (2002 SOL Case No. 012) decided on 9.1.2002.

In the aforesaid case, a letter was addressed to Hon’ble the Chief Justice of India by the members of Ashray Adhikar Abhiyan, making a complaint to the effect that when homeless persons, meet death, they are not cared for and are not given a decent burial. The writer of the letter prayed for an intervention by the Court with a view to issue necessary directions to all those concerned, so that a person dying on the road, can at least get a decent burial or cremation. An important question as to the rights of homeless deceased, to have a decent burial, as per their religious belief with the corresponding obligation of the State towards such person, led to the letter being treated as a Writ Petition. On notices being issued by the Supreme Court, the Deputy Commissioner of Delhi and the then Deputy Municipal Health Officer filed affidavits, detailing the procedure which was being followed when a person dies on the streets and the dead body remains unclaimed. It was stated that in such cases, the unclaimed body of the deceased is handed over to the M.C.D. by the Delhi Police and thereafter the dead body is cremated at Electric Crematorium, Bela Road by the Health Department of M.C.D., free of cost. In case the dead body is that of the Muslim, then the same is buried on a burial ground near Delhi Gate by the Waqf Board and the Municipal Corporation of Delhi bears the expenses.

On behalf of the Municipal Corporation of Delhi, it was submitted:

“Mr. B.A. Mohanti, the learned senior counsel appearing for the Municipal Corporation of Delhi, submitted on instructions that Police reaches the spot of occurrence as soon as it is made known that a dead body not being claimed is there on the road and then steps are taken to identify the dead body and to establish the reasons of the death. The dead body is photographed, where after, if is sent to mortuary for post-mortem. An Intimation is also sent to the Sub Divisional Magistrate. In the matter of identification, wireless message giving complete description of the dead body is sent all over India and intimation is given for its publication in newspaper. There is also a proforma, which is sent along with the photograph to the Missing Persons’ Squad and the same is published in Police Gazette.”

The court accepted the submissions and opined:

“…..since affidavit filed indicates that the unclaimed dead body is cremated in the Electric Crematorium, we do not think it necessary to issue any further directions in that regard. On the materials on record, we are satisfied that the Municipal Corporation of Delhi is taking all possible steps for a decent burial of the unclaimed dead bodies found on the road and, therefore, question of issuing any further direction in that regard does not arise.”

[Emphasis supplied]

These observations of the Hon’ble Supreme Court, thus, indicate the following minimal requirements, for burial/cremation of unclaimed dead bodies, which are required to be carried out by the State/Police/Municipal Committee/local body authorised to cremate/bury an unclaimed dead body of a citizen. The Police on reaching the spot of occurrence as soon as it is made known to it that there was a dead body, which had not been claimed, are:
(a) shall take steps to identify the dead body;
(b) take steps to establish the reason of death;
(c) get the photographs of the dead body whereafter it should be sent to mortuary for post mortem;
(d) send an intimation to the SDM concerned;
(e) for the purposes of identification, wireless message giving complete description of the dead body should be sent all over India besides giving intimation for its publication in the newspaper;
(f) send a copy of the photographs together with proforma to the Missing Persons Squad for its publication in the police gazette.

In the present case, the Punjab Police did not take those steps before the dead bodies were cremated in these crematories.

A reference to some of the relevant provisions of Punjab Police Rules, 1934, dealing with the questions under consideration, regarding the manner of dealing with the unclaimed dead bodies of a citizen would at this stage be appropriate.
Rule 25. 33 Investigating officer – action of at scene of death – On arrival at the place where the body of a deceased person is lying, the police officer making the investigation shall act as follows:
xxx
xxx

(5) He shall draw a correct plan of the scene of death including all features necessary to a right understanding of the case.
(8) He shall take the finger prints of the deceased person if the body is unidentified.

(9) The photographing of the body in situ and of the scene of the occurrence may prove of great evidential value.

Rule 25.36 Post-mortem examination – when and by whom held-

(1) The legal requirements in respect of post-mortem examination by a qualified surgeon are contained in section 174(3), Code of Criminal Procedure. In every case where death appears to have been due to suicidal, homicidal, accidental or suspicious causes and where any doubt exists as to the exact cause of death, or if it appears to the officer conducting the investigation – whether under section 157 or section 174, Code of Criminal Procedure – expedient to do so, the body shall be sent to the nearest medical officer authorised by the Local Government to conduct post-mortem examination. The sending of bodies for examination may only be dispensed with, where such action is otherwise required when conditions exist, such as advanced putrefaction, which would clearly make examination useless.

xxx

xxx

(4) In cases where it is impossible either to send a body to a qualified medical officer or to have it examined by such officer on the spot, the investigating officer may, at his discretion, request the nearest Government medical officer, even though such officer be not authorized to conduct post-mortem examinatino, to assist him with his anatomical and other expert knowledge in estimating the effects and causes of injuries etc. Such medical officers are not empowered to perform any operation on the body. Medical officers of the Irrigation and Public Health Departments and of local bodies cannot be called upon in this connection unless they have been specifically authorized by the Local Government to undertake the medico-legal work (vide rule 25.19).

25.37. Post-mortem examinations – action to be taken by police – When corpses are sent for medical examination the following rules shall be observed:
xxxx

xxxx

(6) As soon as the Civil Surgeon has intimated that his examination is complete, the police shall, unless they have received orders from a competent authority to the contrary, make over the body to the deceased’s relatives or friends or, if there are no relatives or friends, or they decline to receive it, the police shall cause the body to be buried or burnt according to the rules framed in this behalf by the District Magistrate.

25.38. Unidentified bodies – If a body is unidentified, the officer making the investigation shall record a careful description of it, giving all marks, peculiarities, deformities and distinctive features, shall take the finger impressions and, in addition to taking all other reasonable steps to secure identification shall, if possible, have it photographed, and, in cases where such action appears desirable, a description published in the Criminal Intelligence Gazette.

Unidentified corpses should be handed over to any charitable society which is willing to accept them, and if no such society comes forward, they should then be buried or burnt.

“………..”

Thus, what is spelt out from the relevant Punjab Police Rules, 1934 (supra) is that it is obligatory on the part of the police in cases where they find unclaimed dead body of a citizen to:
i) draw a correct plan of the scene where dead body is;
ii) take finger prints of the deceased where the body is unidentified;
iii) get the photographs of the body taken at the scene of occurrence;
iv) get a post mortem examination of the dead body conducted by the nearest qualified surgeon as per the provisions of Section 174 (3) of the Code of Criminal Procedure;
v) to follow rules contained in Rule 25.37 of the Punjab Police Rules, 1934 at the time of sending the dead body for medical examination;
vi) record a careful description of the unidentified dead body giving all marks, pecularities, deformities and distinctive features with a view to facilitate identification of the body;
vii) take steps for burial/cremation of body by handing over the unidentified body to either the Municipal Council or any other charitable society willing to accept it. The Municipal Council or the charitable body, as the case may be shall follow the basic rules of cremiantion/burial according to the religion of the deceased.

While it is possible to agree with the learned Solicitor General, assisted by Shri R.S. Suri, that the police had got the post mortem conducted in each and every case of the unclaimed body before its cremation, no material has been placed on the record to show that the officer conducting the investigation had in letter and in spirit followed the requirements of Section 174 of the Code of Criminal Procedure. In so far as other Rules, as noticed above, are concerned, the learned Solicitor General fairly conceded that appropriate steps under the Punjab Police Rules were not taken before cremation of identified dead bodies and that steps were also not taken to identify the unclaimed dead bodies, where identity of the deceased was not known. It is also admitted that even bare minimal steps like taking the photographs of the deceased or taking of the finger impressions, recording of marks, pecularities, deformities and distinctive features of the dead bodies were not undertaken by the Punjab Police before getting the bodies cremated in the three crematoria of Amritsar, Majitha and Tarn Taran.

Shri R.S. Suri, learned counsel, however, submitted that in the state of affairs which was existing at the relevant time, with terrorism at its peak and a war like situation, it was not possible for the State to take all such steps as are envisaged by the Punjab Police Rules, 1934 and in particular Rules 25.33, 25.36, 25.37 and 25.38 without risking deterioration in the already surcharged atmosphere. Mr.Gonsalves, Sr.Advocate as well as Smt.Nitya Ramakrishnan, Advocate, countered the submissions of the State of Punjab by urging that the plea being raised to justify non following of its own rules was an attempt to hide its activities and justify the clandestine manner of hurriedly and unceremoniously cremating the dead bodies, without making any efforts to identify the deceased. Learned Counsel referred to certain paras of various affidavits filed by the State of Punjab to urge that the State actually took no steps at all to identify the unidentified deceased or even to contact the relatives and family members of those deceased, whose identity was not in doubt. It is urged that there was a systematic breach of procedure which resulted in total violation of the rules.

We have given our anxious consideration to the respective submissions raised before us.

The fact that 2059 bodies had been cremated in the three crematoria of Amritsar, Majitha and Tarn Taran of persons is not in dispute. In view of the fair concession made on behalf of the State of Punjab by the learned Solicitor General regarding non following of the procedural requirements, (except for getting the post-mortem done) we find on the admitted premise that the Punjab Police Rules, convention and practices as also the observations of the Supreme Court were respected in their breach by the police before undertaking the cremation of 2059 bodies. This action of the police coupled with their lapses has resulted in violation of the human rights of the deceased as well as their family members and next of kin. Dignity of the dead has been offended.

Human dignity is the spine of human rights. Human dignity is infact the very foundation on which Human Rights rest. Emphasis on human dignity is enshrined in the UN Charter, the Universal Declaration of Human Rights and several covenants as also in the Constitution of India, which proclaims “dignity of individual” as a core value in its Preamble. Human dignity includes the dignity of the living as well as the dignity of the dead. Every State is required to abide by the rules of humanitarian law regarding disposal of bodies of unclaimed deceased persons. This also is the core of good governance which postulates ensuring and protecting human dignity. It is also a basic rule of Geneva Convention, to which India is a party that the State must protect the dignity not only of the living citizens but also of the dead. We find support for our view from Article 130 of the Fourth Geneva Convention which provides thus:

“The detaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged and that their graves are respected, properly maintained, and marked in such a way that they can always be recognized.

Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his expressed wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased. The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred as soon as possible to the next of kin on their request.”

The right to respect the dignity of the dead is not only important for the deceased but is also equally important for the sentiments of the family and friends of the deceased. The rights of the family of the deceased include receiving of the dead body, its funeral ceremony including performing last rites with all essential ceremonies, before burial or cremation. The next of kin have indeed a right to the dead and even if be limited to taking possession of the dead body for the purposes of burial or cremation, it cannot be permitted to be breached. As already noticed, the State of Punjab made no efforts whatsoever to contact or trace the relatives of the identified deceased. No explanation, much less an acceptable or a satisfactory explanation has been offered by the State for not following the basic requirements keeping in view the dignity of the dead and the sentiments of the family of the deceased. The submission of Mr.Suri on behalf of the State about the prevailing situation, cannot, absolve the State of its obligations under the Rules and practices. A similar argument raised before the Commission by the State of Punjab was rejected by it vide its order dated 11th November, 2004. It was observed:

“Before we consider the submissions of learned counsel for the parties in their correct perspective, it needs to be pointed out that human rights of citizens are non-negotiable and non-derrogable. No compromise with violations of the same is permissible in any civilized society. These rights recognize the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economical level of living. While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence. No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.

It needs to be acknowledged that there can be no alibis and justification for terrorism and nothing justifies terrorism and that the menace of terrorism has to be curbed. However, the Commission is firmly of the view that whereas terrorism must be countered effectively and strongly, no democratic society can be permitted to chill civil liberties of the citizens while taking measures against the terrorists. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy. Counter-terrorism measures should, therefore, not undermine democratic values or subvert the rule of law. It is during anxious times, like the decade in Punjab under our consideration, when care has to be taken that State does not recourse to bend the rule of law.


The State of Punjab was required to take all necessary steps to identify the unclaimed dead bodies and contact the next of kin of those whose identity was not in doubt. This was necessary to show respect to the dignity of the dead and to be sensitive to the feelings and emotions of the families of the deceased. The State of Punjab failed on both these counts, thereby providing some justification to the submissions of learned counsel for CIIP and CCDP that the cremations were done “unceremoniously”, “unlawfully” and in a hurry showing scant respect to the dead.

Every society has certain traditions which it follows. The respect for those traditions necessitates that the State does not interfere with the same unless they are in breach of any law. In case of dead bodies, it is already an unmitigated tragedy for the family whose member has died and that tragedy gets compounded if without following its established tradition and religious customs, the body is cremated or buried rather unceremoniously. Every religion has respect for the dignity of the dead. Religious ceremonies, before cremation or burial, vary but the genesis of these ceremonies is in honouring the dead. Respecting the dead is not limited only to the body of the deceased but it involves respecting emotions and sentiments of the family of the deceased also. This is also a well accepted injunction of humanitarian law.

Thus, the receiving of the body for burial/cremation, arranging the funeral ceremony are all essentials in comprehending the reality of death of a relative and friend and accept and dealing with it. It is obviously in furtherance of those rights and the humanitarian law that relevant provisions had been incorporated in the Punjab Police Rules. The police authorities were expected to follow and honour the mandate of those Rules. They obviously showed scant respect for the rules and committed their breach with impunity. The answer to question No.1 is, therefore, in the negative.

Now coming to questions Nos.2 and 3 i.e.: Whether State is not liable to make monetary amends for violating the dignity of the dead and causing distress to the next of kin of the deceased and the quantum of compensation payable to the next of kin of those unceremoniously cremated?

The importance of affirmed rights of every human being, at all times, needs no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of this Commission as a forum for protection and promotion of human rights of the citizens. Assault on human dignity cannot be permitted in any civilized society. Human dignity cannot be allowed to be set at naught or circumvented. As a necessary corollary it follows that whenever human dignity is wounded by functionaries of the State, it is against the State that the remedy must be sought for its failures to protect human dignity of the citizens. Enjoyment of basic human rights including the right to have its human dignity respected are the entitlements of every citizen and their protection an obligation of every civilized State because they are inherent in and essential to the structure of the society. An assault on human dignity makes the civilization take a step backward. Protection of human rights and grant of redress where the same have been infringed is a part of legal consequences of the infringement of those human rights. Award of monetary relief in such cases, of course, does not imply enforcement of the human rights which had been violated but is clearly a form of redress which a person is entitled to claim. It is a claim in public law for making monetary awards for deprivation of guaranteed human rights of the concerned citizens. It is a well accepted proposition in law that 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 human rights of a citizen by the public servants and the State must be held vicariously liable for the acts of its public servants. The object of granting such monetary or pecuniary relief to the aggrieved party is only to apply balm to the wound and not to punish the transgressor or the offender as awarding appropriate punishment for the offence has to be left to the criminal courts in which the offender may be prosecuted. The grant of the monetary relief is also without prejudice to the rights of the parties in any other manner.

Out of 2059 bodies cremated in the three crematoria of Police Districts Amritsar, Majitha and Tarn Taran we have, in an earlier part of our order, held that 194 of the deceased persons were in the “custody” or “deemed custody” of the police prior to their death and cremation and have held the next of kin of each one of them entitled to grant of monetary relief at the rate of Rs.2.50 lakhs. Though, initially only 582 bodies had been identified, during the inquiry the identity of as many as 1245 (including 582 of List A) was established. Thus out of the total 2059 bodies cremated by the State of Punjab in the crematoria referred to above, the identity of 1245 stands fixed. Since the next of kin of 194 have already been awarded monetary relief as already noted, that leaves 1051 bodies to have been cremated by the State of Punjab without following the Punjab Police Rules, guidelines, practice and humanitarian law. Next of kin of each one of these 1051 families are also entitled to receive monetary relief, to apply balm to their wounds for the reasons already recorded.

As regards the extent of monetary relief, in our order of 11th November, 2004 we had observed:

“Indeed, the quantum of compensation depends upon the circumstances of each case and there is no rule of thumb which can be applied to all cases nor even a universally applicable formula. In our opinion the compensation has to be fair and reasonable. It should neither be punitive nor illusory.”

On the issue of monetary relief, learned counsel, Shri Navkiran Singh, appearing for the widow of the decease Shri Jaswant S. Khalra, the original petitioner in the writ petition in the Supreme Court, submitted a petition stating that an amount of Rs. 1.50 lakhs should be considered as appropriate monetary relief to be awarded in favour of the next of kin of all those deceased who by now stand identified and had been cremated by the Punjab police in the three crematoria. Learned counsel further submitted that this amount should also become payable, in addition to the sum of Rs. 2.50 lakhs already granted by the Commission, by way of relief to the next of kin of such of the deceased persons who had died while in ‘actual or deemed’ custody of the police. Mr. Colin Gonsalves, learned counsel for CCDP submitted that an amount of Rs. 2 lakh should be awarded by way of monetary relief, to the next of kin, of each one of the other identified deceased who were unceremoniously cremated by the Punjab police. Ms. Nitya Rama Krishnan made certain oral submissions and sought permission to file written submissions in support of her submissions. She has filed a written statement dated 20.09.2006 in the Commission on 21.09.2006 on the issue of compensation. In the written submissions inter-alia she has stated :-
“The NHRC has taken the view that its remit is the 2097 bodies (identified, unidentified and partially identified). The issue is now of the fixing of compensation in respect of the human rights violation that is seen to be inherent in the illegality of or lapses in the cremations in respect of these cases.”


“CIIP is aware of the limits placed on the NHRC’s remit by pronouncements. CIIP is equally aware of the fact that its plea regarding all cases of extra judicial executions and disappearances throughout the state stands rejected. However, it is submitted with respect, that the above would, in no way foreclose the CIIP’s submissions on the nature of compensation to be awarded in the cases where the NHRC has come to the conclusion that it must be awarded.”


“NHRC has taken the view that the lapses and illegalities in the formalities attending the cremations would render the same an affront to the dignity of the dead. It is this affront that is now being sought to be healed by the remedial action under human rights jurisprudence. If this view is the bases for award of compensation, then, CIIP submits that there is no reason to distinguish between one irregular cremation and another ……”
………….
………….

Having said that, the CIIP states that it has no submission whatsoever to make on the quantum of monetary relief fixed. As would become evident in the following paragraphs, the CIIP would stress on the remedial compensation which is in keeping with human rights jurisprudence. This Hon’ble Commission is not a motor accidents tribunal and the CIIP does not intend to address it as one.”
…………
………...


“The Reparation Principles describe four forms of reparation that States should provide to victims of violations of human rights and humanitarian law: restitution, compensation, rehabilitation and satisfaction and guarantees of non-repetition. Restitution is described as the restoration of the victim, whenever possible, to the original situation prior to the occurrence of the violation. This includes measures such as “restoration of liberty, legal rights, social status, family life and citizenship; return to one’s place of residence; and restoration of employment and return of property.”……..
………….
………….

“The Principles include the satisfaction and guarantees of non-repetition in the definition of reparation, stressing: the cessation of continuing violations………”.


In certain other paragraphs of the written submissions, Ms. Nitya Rama Krishnan has repeated some of the arguments earlier advanced on behalf of the CIIP, which have elaborately been discussed by the Commission on various earlier occasions and need not be repeated. She has also referred to what she classifies as international human rights ‘precedents’ to indicate the type of and the extent of monetary relief which has been granted, under certain circumstances, in different countries. We do not find it necessary to refer to those precedents, from various other countries which according to her had also experienced systematic human rights violations and the extent of compensation granted in those cases. In matters of grant of compensation, it is the facts and the circumstances of each case which alone are required be taken into consideration and can govern the exercise of the power of the concerned forum to grant monetary relief to the victims or their next of kin. During her oral submissions, while elaborating on the nature of non-monetary relief, she submitted that the State should takes steps for psychological, rehabilitation of the families of the deceased besides restoration of institutional integrity. She urged that the State of Punjab be directed to takes steps to ensure non-recurrence of such acts in the future.

The Learned Solicitor General appearing for the State of Punjab in response to the submissions made by learned counsel for the writ petitioner, CIIP and CCDP submitted that the amount of monetary relief to be granted to the next of kin of the identified deceased, whose bodies were cremated by the Punjab police, should indeed be fair and reasonable and suggested that an amount of Rs. 1.50 lakhs, as suggested by learned counsel for the original writ petitioner, appeared to him to be reasonable. He, however, submitted that there was no justification to re-open the issue, already settled by the Commission in its earlier orders and award further monetary relief of Rs.1.50 lakhs to the next of kin of each of those 194 deceased who had been granted relief at the rate of Rs.2.50 lakhs. He drew attention of the Commission to the following issues (order dated 11.11.2004):

(a) Whether any of the deceased who were cremated in police districts of Amritsar, Majitha, Tarn Taran by the police were admittedly in the custody of the Punjab police prior to the time of their death and cremation?

(b) Whether the State of Punjab is not liable to pay compensation to the next of kin of those deceased, who were admittedly in the custody of the police prior to their death and cremation?


to urge that both these issues were deliberated and discussed by the Commission and its finding on the two issues recorded in its order of 11.11.2004 were clear and specific. According to the learned Solicitor General, the State of Punjab was, by that order required to make monetary amends, for the unlawful cremation of the dead bodies of those deceased persons who were admittedly in the custody of the Punjab police prior to their death and cremation in the three crematoria, by granting Rs. 2.50 lakhs to the next of kin of each of those deceased. He asserted that the issue having been settled, no further, amount by way of monetary relief could be granted in favour of the next of kin of the 194 deceased persons.

Responding to the submission of learned counsel for CIIP, the Learned Solicitor General stated that the State of Punjab had been taking all such steps as are necessary to heal the wounds of the effected families. He stated that the return of normalcy in the State of Punjab was a positive proof of the efforts made by the State and that the State would continue with its efforts in that behalf and that he was under instructions to say that the State shall not be found wanting in that behalf. We record the statement.

We have given our anxious consideration to the submissions raised before us.

We find substance in the submission of the Learned Solicitor General countering the prayer made by learned counsel for the writ petitioner regarding grant of additional relief in favour of the next of kin of 194 deceased persons. The Commission, under order of the Supreme Court dated 12.12.1996 as well as various subsequent orders, which have already been referred to in our proceedings of 11th November, 2004, had been entrusted with the task of examining the issue of “unlawful cremations” of 2097 bodies (on re-check only 2059). The two issues referred to in our order of 11th November, 2004 (supra) were discussed by the Commission in that context. The Commission granted monetary relief for ‘the unlawful cremation of 194 bodies’, who were ‘prior to their death and cremation in the custody of the police’ by holding the State to be vicariously liable for the infringement of their rights, to their next of kin at Rs.2.50 lakhs while fixing the extent of monetary relief, the Commission had taken into consideration not only the violatin of rules / norms for cremation of 194 dead bodies by the police but also the fact that they were in custody of the police before their death and the police failed to protect their lives. There is, therefore, no justification to grant any further monetary relief in the case of those 194 deceased persons. A similar prayer for enhancement of the extent of monetary relief granted in favour of next of kin of those deceased persons was rejected by the Commission on an earlier occasion. That apart, we are informed that the order of the Commission dated 11th November, 2004 has been put in issue (as regards extend of relief) before the Supreme Court of India in a SLP. The matter, therefore, is also sub-judice before the Supreme Court. Under these circumstances, we are unable to persuade ourselves, to agree with the learned counsel, Shri Navkiran Singh, to grant further monetary relief of Rs. 1.50 lakhs to the next to kin of each of those 194 dead persons, who have been granted relief @ of Rs. 2.50 lakhs.

In our opinion, the submission of Ms. Nitya Rama Krishnan, that the State of Punjab should take steps to ensure non-recurrence of such acts in future is quite reasonable. The learned Solicitor General with his usual fairness did not join any issue in that behalf and rightly so. It is an obligation of every civilized State to ensure that its acts, which have been found to be violative of humanitarian laws and/or which impinge upon human rights of the citizens, do not reoccur. We have no doubt that the State of Punjab as well as the Union of India are alive to their obligations in this behalf and would take appropriate steps which would also restore institutional integrity. We have also no doubt that the State of Punjab would offer medical/ psychological assistance to a member/members of any such family, which had suffered as a result of the tragedy, who approaches it, at State expense so that the healing process started by it becomes meaningful. In view of the statement of the learned Solicitor General no further directions in that behalf are as such necessary to be issued by the Commission.

After giving our careful consideration to the submissions made before us and the facts and circumstances of the case, it appears to us reasonable to grant monetary relief to the extent of Rs. 1.75 lakhs (Rupees One lakh seventy five thousand) to the next of kin of each of the 1051 identified deceased persons, who were unceremoniously cremated by the Punjab Police in the three crematoria. The details of those deceased are given as “Annexure A” to this order.

The State of Punjab shall deposit an amount of Rs. 18,39,25,000/- with the concerned District Magistrate within three months for disbursement to the next of kin of those deceased persons, at the rate of Rs. 1.75 lakhs for each of the deceased.

The manner of its disbursement shall, of course, be as settled by us in our order of 11th November, 2004 viz.:

“The District Magistrate of Amritsar himself or through the concerned SDM, shall pay the amount to the next of kin of the concerned deceased. 50% of the amount shall be deposited in fixed deposit for five years in the name of the next of kin in a nationalized bank, who shall be entitled, during the term, to withdraw interest on the fixed deposit. The balance amount of 50% shall be given to them in cash or through cheque against proper receipt. The disbursement shall be made by the District Magistrate or the concerned SDM within two months from the date of receipt of the amount from the State Government.”

The District Magistrate shall furnish proof of payment to the Commission.

We would, however, like to clarify that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for the unlawful and unceremonious cremations of the deceased, without following the rules, conventions and the humanitarian law, which actions impinged the dignity of the dead and hurt the sentiments of their families, lest it should prejudice any of the parties in the investigation being carried out by the CBI, who has been mandated to determine the culpability, under orders of the Hon’ble Supreme Court. The grant of monetary relief by us is without prejudice to any other right which the parties may have.
We also consider it appropriate to once again reiterate what we had said in our order of 11th November, 2004:
“Before parting with this order, we would like to observe that after the unfortunate turmoil in Punjab, things have returned to near normalcy. Both the State Authorities and the citizens should, therefore, treat this order as an application of balm to whatever wounds were still left and to engage themselves to make the State of Punjab more prosperous and peaceful, in keeping with the great traditions of the State. This order should not be considered in the spirit of ‘Win’ or ‘Loose’ as, indeed, it is not meant to be so construed. We hope our observations would be received in the right spirit and the State Authorities as well as the citizens would ungrudgingly work towards the prosperity of the State. Peace must prevail hereafter.”

Questions 2 and 3 are answered accordingly.
This now takes us to Question No.4 which reads thus:
“What relief, if any, can be granted in respect of the unidentified bodies (List C) or partially identified (List B) cremated by the State of Punjab in the three police districts?”

As already noticed in our previous order, the case was remitted to the Commission by the Hon’ble Supreme Court vide order dated December 12, 1996. On 16th October, 1998, the Commission heard arguments from Learned Counsel of the parties with regard to what they perceived as the proper scope of inquiry which the Commission was required to under take under the remit of the Supreme Court. The Commission after detailed discussion observed:-

“For the reasons stated above, the Commission considers it fair to say that the scope of the inquiry under the Supreme Court’s direction, is limited only to those illegal killings / disappearances that culminated in the cremation of 2097 bodies (585 bodies fully identified, 274 bodies partially identified and 1238 bodies unidentified) in the crematoria located at Durgyana Mandir, Patti Municipal Committee Crematorium and Tarn Taran Crematorium located in the Police districts of Amritsar, Majitha and Tarn Taran, which were also the subject matter of inquiry by the CBI in pursuance of the Order of Supreme Court dated 15th November 1995.

Learned counsel for CIIP wanted to ‘reopen’ the issue of scope of the remit. After hearing learned counsel for the parties, the Commission, on 13th January, 1999 held that the scope of the Commission’s jurisdiction was confined to matters relating to ‘the alleged unlawful cremation of 2097 bodes in the three Police Districts of Amritsar, Tarn Taran and Majitha’. A Public Notice inviting claims/petitions from the legal heirs/next of kin of the deceased claiming that the deceased was illegally cremated by the Punjab Police was, accordingly, thereafter issued. In response to the said notice only 88 claim petitions were received by the Commission. In the proceedings of the Commission dated 15th February, 2001; it was obsereved:

“The scope of this enquiry relates to 2097 cremations according to the CBI report out of which 585 were identified, 274 partially identified and the remaining 1238 unidentified. In response to the public notice issued by the Commission, only 88 claims have been filed. It is obvious that as far as practicable efforts must be made to enquire into all or as many out of 2097 cremations as possible and for that purpose the necessary particulars would be required. In respect of 585 cases which according to the CBI report are identified, the particulars available in the CBI report should furnish the basis for proceeding with the enquiry irrespective of the question whether any claim has been filed in respect of them or not. In respect of the 274 partially identified, the available particulars have to be utilized for making full identification and obtaining the requisite particulars to enable the inquiry to proceed. In respect of the remaining 1238 unidentified cremations, efforts should be made to obtain the necessary particulars in every possible manner so that even in respect of them an enquiry, if possible, can be held.”


The case, however, made no progress of any consequence and vide its proceedings of 2nd September, 2003, the Commission granted time to the parties to verify the details given in the three Lists, A, B and C filed by the CBI and they were directed to file a tabulated chart in respect of the persons detailed in those three lists.

On March 17 2004, , the Commission, in the course of its proceedings, observed:

“It appears to us that for proper adjudication of the rights and for effective determination of compensation etc. in respect of the cases of identified and partially identified bodies, it is desirable that the Commission once again issues a public notice inviting the ‘NOK’ of all such persons whose names figure in these lists to submit their claims, if any, or make other submissions in person or through counsel. Even NOK of persons, other than those mentioned in Lists ‘A’ & ‘B’, who also consider that they have some claims to prefer in respect of any of their ‘unidentified’ deceased relations, may also likewise submit their claims to the Commission in person or through their counsel. The claims shall be accompanied by affidavits of the claimants indicating their relationship with the deceased and also disclosing the names and addresses of the legal heirs of the deceased.

Those 88 claimants who had responded to the Commission’s earlier notice shall also be served with personal notices regarding the next date of hearing. They shall also be called upon to file affidavits in support of their claims disclosing their exact relationship with the deceased and also the names and addresses of other legal heirs of the deceased so that their claims are also considered properly.”

Public notices were accordingly published on 19th July, 2004 in various news papers. The Commission received in all 1769 claim petitions. These were in addition to the 88 claim petitions which had been received in response to the earlier notice. Most of the claimants are represented by CCDP. However, Shri Ashok Aggarwal appearing on behalf of the CIIP stated before the Commission on 23rd September, 2004 that he would not be addressing the Commission on any individual claim or filing an individual claim on behalf of any persons but would address the Commission on broader issues of the case.

As a result of the efforts made by the Commission with the assistance of learned counsel for CIIP, CCDP and the State of Punjab, as against 582 identified bodies (List A filed by the CBI), the total number of bodies which have till now been identified and connected with the deceased cremated by the Punjab Police in the three crematoria Amritsar, Majitha and Tarn Taran is, as already noticed, 1245. Out of 1245 identified deceased persons, next of kin of 194 who were found by the Commission to have been in the “actual” or “deemed custody” of the police before their death and were unceremoniously cremated by the Punjab Police have already been granted monetary relief by the Commission by its various earlier orders. We have, in an earlier part of this order, also granted monetary relief to the next of kin of remaining identified 1051 deceased persons who were unceremoniously cremated by the Punjab Police ignoring the rules, conventions, practices and humanitarian law. Thus, what we now find is that 814 bodies have still remained unidentified out of List B (partly identified) and List C (unidentified bodies).

During its proceedings, both prior to and after the 11th November, 2004, the Commission has been making efforts to identify the remaining unidentified bodies by requesting for assistance by the parties. It was stated by the learned counsel for the CIIP and CCDP that despite efforts made by them they could not furnish any further list of identity of any one out of the unidentified 814 bodies. Mr.Suri, Learned counsel, on behalf of State of Punjab also stated that though further field visits had been undertaken by the Punjab Police and all available records both with the CBI and the police examined, their efforts have not yielded any further results. He, however, assured that the State of Punjab would continue to make efforts to identify, if possible, any one of the remaining 814 unidentified bodies so that the next of kin of those unfortunate deceased persons are also able to receive some solace.

On 22nd September, 2006, CIIP has filed one more set of written submissions on the issue of ‘the Government’s purported failure to identify 814 bodies’. In the written submissions, ithas , inter alia, been stated:

“The CIIP had also repeatedly argued, much to the exasperation of the Commission, for an inclusive approach to generating and verifying information on the identities of cremated persons, covering all of Punjab, primarily because the Commission had obtained conclusive evidence establishing that mass secret cremations had been repeated in other districts throughout the State and security forces had perpetrated abductions, custodial torture, and murder without total disregard for jurisdictional limitations. On the basis of this evidence, the CIIP had come to the conclusion that all persons from Amritsar who had disappeared following police abductions may not necessarily have been cremated in three crematoria of Durgiyana Mandir, Patti and Tarn Taran. As a matter of fact, in its application to the Supreme Court filed on 24th August, 1999, the CIIP had attached the municipal corporation records of illegal cremations at six additional crematoria, all outside Amritsar, from Faridkot, Kapurthala, Ludhiana, Mansa, Moga and Zira in Ferozepur district. These records showed cremations of 934 bodies, labeled as unidentified and unclaimed, which the Punjab Police had carried out. Although the Supreme Court refused to interfere at that point with the manner in which the NHRC had chosen to conduct the proceedings in the case, it is our conviction that by refusing to take an inclusive approach to generating and verifying information on the identifies of the cremated persons, it foreclosed the possibility of complete identification of all the unidentified cremations cited in the CBI’s lists.” (Para 11)
“The petitioner CIIP has consistently argued that the manner in which these lives were eliminated, even limited to the 2097 cases of extrajudicial executions, was an attempt by the government to ensure that the victims’ identity and the circumstances of their murders never became known.”


In certain other paragraphs reference has been made to some “illustrations” based on its “report which listed” “cases of police abductors leading to illegal cremations in Amritsar District”. ….”the facts speak for themselves and establish custodial torture, expropriation, harassment of the families, and the undoubted role of military and paramilitary forces in extra judicial executions. The facts also expose the functioning of the lower judiciary and the role of doctors”.

Similar submissions had been earlier unsuccessfully raised by the CIIP both before the Commission and the Supreme Court even earlier and had been rejected keeping in view the scope of the remit. Reference in this connection may be made to various earlier orders more particularly the orders of the Commission dated 4th August, 1997; 13th January, 1999; 14th March, 1999 and the detailed orders dated 11th November, 2005 on Misc. Petition No.A 1-9/9 and the orders of the Supreme Court dated 10th September, 1998 and 11th October, 1999. The above submissions, therefore, do not require any fresh consideration.

Since, the efforts made, thus, far have resulted into the identification of many more dead bodies, then those mentioned in List A, as detailed elsewhere, the Commission is of the view that the possibility of identification of some more out of the unidentified bodies cannot be ruled out. Therefore, in the interest of justice, we would like to make one final effort to identify as many dead bodies out of the 814 unidentified bodies as possible. For this limited purpose, the Commission now considers it appropriate and expedient to appoint a Commissioner of the rank of a retired High Court Judge for receiving evidence and conducting an inquiry to fix the identity of as many dead bodies, as possible, out of the 814 unidentified deceased persons; subject ofcourse, to the final imprimatur thereon by the Commission itself. With a view to select a Commissioner, the Chairman of the Commission requested the Hon’ble Acting Chief Justice of the High Court of Punjab and Haryana to suggest a panel of names of retired High Court Judges who would be willing to assist the Commission in this assignment and conduct an enquiry at Amritsar. Mr. Justice H.S. Bedi, the Hon’ble Acting Chief Justice vide his letter dated September 22, 2006 has, in response suggested a panel of names.
Keeping in view the need for having knowledge of Punjabi language as well as Punjabi ethos, the Commission entrusts the inquiry to Mr. Justice K.S. Bhalla, Retired Judge of the High Court of Punjab and Haryana, out of the suggested panel, to act as a Commissioner on behalf of the Commission subject, ofcourse, to the final imprimatur by the Commission. He shall be paid an honorarium at the rate of Rs.50,000/- per month with effect from the date he takes over the assignment. He shall submit his report within eight months from the date of taking over the assignment as the Commissioner. The State of Punjab shall make available the services of Additional District Magistrate, Amritsar to act as Member-Secretary to the Commissioner. For facility of the claimants, the Commissioner shall hold its sittings at Amritsar.

Hon’ble the Acting Chief Justice of Punjab and Haryana High Court in his letter dated September 22, 2006 has also conveyed to the Chairperson, NHRC that he had contacted Shri Gurdev Singh, the District and Sessions Judge, Amritsar, who has assured him that all possible facilities, which include the facilities of providing office space in the new Judicial Complex at Amritsar, would be provided to the assignee Commissioner.

On conclusion of the enquiry, the learned Commissioner shall submit his findings regarding the identity of the deceased to the Commission, if any, for further action regarding grant of monetary relief.

In the written submissions filed by the CIIP on 22nd September, 2006, it has also been stated:
“…….if access and infrastructure is made available to the CIIP, the CIIP can attempt to identify the 776 bodies. Indeed, it is incumbent on the State to cooperate with the petitioners and Commissions in this effort.” (Para 6)

……………

……………

“After thoroughly understanding the scope of the problem, the CIIP made methodological suggestions and pleas to the Commission in the early days of these proceedings. The CIIP is now again offering to help identify the bodies and will gladly work in cooperation with any legitimate and transparent mechanism constituted to monitor and complete the identification process.” (Para 8)

The learned Commissioner shall associate Punjab Police, CIIP, CCDP and such of the claimants, (who had approached the Commission) who wish to lead evidence to connect their next of kin with any one out of 814 deceased persons while conducting the inquiry.

We direct the State of Punjab and the Punjab Police to offer all possible assistance to the Commissioner for carrying out the task assigned to him.

So far as other modalities and details for conducting the enquiry are concerned, the same shall be settled by the Commission in consultation with Mr. Justice K.S. Bhalla.


(A.S. Anand)
Chairperson



(Shivraj V. Patil) (Y. Bhaskar Rao) (R.S. Kalha)
Member Member Member






































































































This order will dispose of Miscellaneous Petition A1-9/9 filed by the Committee for Information and Initiative on Punjab (CIIP) on 9th September, 2005. The petition aims at seeking a clarification on “certain basic and/or questions of law germane to the present proceedings”.

Ms. Indira Jaisingh, learned Senior Advocate, assisted by Mr. Ashok Agrwaal, learned counsel for CIIP appearing in support of the Misc. Petition referred to various paragraphs of the petition as also the written submissions filed on 5.7.2005 on behalf of the CIIP. She submitted that while considering the issues of “unlawful cremations of 2097 bodies” in the three police districts of Amritsar, the Commission shall have to first hold a full-scale inquiry into “manner and method of death” and “pattern of killing” of all those who were “unlawfully cremated as unidentified/unclaimed by the police”. Referring to the order of the Commission dated 4.8.1997, she submitted that quantification of compensation could only be made after ‘factual foundations’ are first laid to fasten the liability, after an inquiry into the “pattern of killings” or the “manner and method” of death of those persons whose bodies were “unlawfully cremated”. She submitted that Commission, by interpreting Supreme Court’s remit as requiring it to conduct an inquiry only about “unlawful cremations of 2097 bodies” as unclaimed/unidentified by Punjab Police and not about factum of how they had died, was unduly restricting its jurisdiction. It was urged that the Commission had failed to appreciate the import of observations of the Supreme Court to the effect that it shall decide “all issues that may be raised” by learned counsel for the parties before it while considering the scope of inquiry pursuant to the remit and that the issues raised by CIIP to the effect that the Commission should inquire into “pattern of killing” and “manner of death” were required to be decided by the Commission before proceeding further.

Learned counsel also submitted that the Commission, which awarded compensation to the NOK of 109 persons on the basis of principles of strict liability vide its order dated 11.11.2004 needs to “clarify its stand with regard to award made vide its order dated 11.11.2004” and to clarify whether the award is by way of “interim relief or final compensation”.

Mr. C. Gonsalves, learned Sr. Counsel appearing for The Committee for Coordination on Disappearances in Punjab (CCDP) also referred to the written submission filed by the CCDP and urged that the Commission, with a view to find out whether or not there have been violations of human rights, needs to go into the larger question of manner in which deaths occurred and fix responsibility therefor. He also submitted that compensation awarded by the Commission on 11.11.2004 in respect of 109 persons was ‘inadequate’ and should be enhanced to at least Rs. 10 lakhs for each of the families.

Mr. Vahanwati, the learned Solicitor General assisted by Mr.R.S. Suri, learned Sr. Counsel appearing for the State of Punjab in response submitted that the petition filed by the CIIP (A1-9/9) was only a delaying tactic and was aimed at protracting the disposal of the matter. He submitted that all the pleas being raised in the petition (A1-9/9) as also in the written submissions filed on 5.7.2005 had been considered time and again by the Commission and rejected. He emphasized that the orders of the Commission determining the scope of inquiry were explicit and had also been upheld by the Supreme Court vide its order dated 10.9.1998 and asserted that after the order of the Supreme Court and dismissal of the review petition filed by the CIIP, the petition A1-9/9 was an abuse of the proceedings. Learned Solicitor General drew the attention of the Commission to various orders made by the Commission from 4th August, 1997 onwards and in particular to the orders of the Commission dated 13.1.1999, 24.3.1999 and 15.2.2001 to emphasise that the Commission had repeatedly expressed its view that it was required by the remit to only consider ‘the issue of violation of human rights emanating from the unlawful cremations of 2097 bodies and to award compensation if it was found that there had been violation of human rights on that account’. He argued that the view taken by the Commission had been upheld by the Supreme Court vide orders dated 10.9.1998 and 11.10.1999 and there was, therefore, no scope to reopen the issue. He pointed out that the petitioner had withheld reference to the orders of the Supreme Court dated 11.10.1999 dismissing the petition of the petitioner against the orders of the Commission dated 13.1.1999 and 15.2.1999 in its petition A1-9/9 as well as in the written submissions filed by it and that ‘suppression’ was to say the least ‘unfortunate’.

Learned Solicitor General also submitted that the task of “investigating into the manner of deaths as well as the culpability of the persons involved” had been left by the Supreme Court to the CBI, which was investigating into various cases and therefore, the Supreme Court had confined the remit to the complaints of alleged “unlawful cremations” of 2097 bodies in the three police districts of District Amritsar only and if after an inquiry the Commission came to the conclusion that there had been violation of human rights on that account, to award compensation to the next of kin of those whose bodies had been unlawfully cremated as “unclaimed/unidentified” by the police.

Mr. Vahanwati stated that though it is desirable that in matters relating to human rights, a broad approach is taken but the Commission is bound by the limitations of the remit from the Supreme Court and was required to consider the matter as per the Supreme Court order only and could not enlarge the scope of inquiry which stood rightly determined by the Commission by its various orders.

In order to consider the petition (A1-9/9) and the submissions made before us, it is necessary to recount, in brief, the proceedings which have taken place before the Supreme Court as also before this Commission till date. At the first instance it would be advantageous to extract some relevant portions from the order of remit by the Supreme Court dated 12.12.1996:

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

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

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

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

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

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

Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable. If any approval or further assistance from this Court is necessary, the same may be sought by the Commission. The necessary papers be sent to the Commission within one week in a separate sealed cover.”
(Emphasis supplied)
This Commission, thereafter, heard the parties regarding the scope and ambit of the inquiry before it. It noticed the circumstances under which remit was made in its order of 4th August, 1997. The Commission observed:

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

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

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

(Underlining ours)

The Commission held that the remit from the Supreme Court required the Commission to adjudicate on the issue of compensation and that any compensation awarded by the Commission “shall be binding and payable” by the Government. For considering the nature and concept of the award of compensation in such cases, the proceedings of the Commission dated 4th of August, 1997 referred to a range of decisions of the Supreme Court in Neelabati Behera vs. State of Orissa 1993 (2) SCC – 746, D.K. Basu vs. State of West Bengal (9) Scale – 298 and PUCL vs. Union of India (1997) 2JT 311, which had laid down broad parameters of the concept of damages in public law as part of the constitutional regime. The Commission observed:

“…… Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that 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 of 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.”

The order of the Commission dated 4th August, 1997 defining the scope of enquiry was challenged in the Supreme Court by the Union of India, who also sought “clarification of the order dated 12th December 1996” passed by the Supreme Court. Their Lordships, while upholding the order of the Commission dated 4th August, 1997, once again on 10th September 1998, reiterated:

“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.”

xxx xxx xxx
“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 22.7.1996, 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.

The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, 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. 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 Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter.”
(Emphasis ours)

A conjoint reading of the orders of the Supreme Court dated 12.12.1996 and 10.9.1998 shows that from a reading of the Press Note dated January 16, 1995, their Lordships 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 the dead bodies of large number of persons – allegedly thousands – could be cremated by the police unceremoniously with a label “unidentified”. Our faith in democracy and rule of law assures us that nothing of the type can ever happen in this country but the allegations in the Press Note – horrendous as they are – need thorough investigation.”

After noticing the contents of the 5th and final report filed by the CBI in the Court on December 9, 1996 concerning the large number of cremations of “unidentified” dead bodies, their Lordships found:

“The report indicates that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. Needless to say that the report discloses flagrant violation of human rights on a mass scale. Without going into the matter any further, we leave the whole matter to be dealt with by the Commission.”

Their Lordships then noted:

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

and in their order of 10th September, 1998 referring to the ambit of the inquiry by the Commission, observed:

“…if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated.”

Their Lordships noticed that since this Commission was required to examine and decide the remitted issue in terms of Section 17 and 18 of the Act, lest there be any ambiguity as to whether the Commission could, on being satisfied about the violation of human rights, only make a recommendation for payment of ‘interim relief’ or award compensation in appropriate cases, they said:

“Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable.”

This is precisely the manner in which the Commission understood the ambit and scope of the remit and repeatedly said so notwithstanding the submissions of CIIP, repeatedly raised, that the Commission should first examine the “pattern of killing” and the “manner and method of deaths” which led to the cremations. The Commission has observed on earlier occasions also that since the Supreme Court had directed:

“…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.”

and had also, in its order of 10th September, 1998, observed:

“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……………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.”

Therefore, the view repeatedly reiterated by the Commission regarding the scope of remit and that the investigation into issues of culpability of those responsible was to be done by the CBI is fully in accord with the observations of the Supreme Court.

However, inspite of the clear observations of the Supreme Court and the determination of scope of inquiry by the Commission on 4th August, 1997, learned counsel for the CIIP once more raised an issue regarding the ‘true’ scope of inquiry contending that the scope of inquiry was being ‘unduly’ restricted by the Commission. On 16th of October, 1998, the contentions of the petitioners once again failed and were rejected.

Learned counsel for the CIIP, it appears, once again raised an issue relating to the scope of inquiry. After hearing learned counsel for the parties, the Commission vide its detailed order dated 13th January, 1999 reiterated that the scope of the Commission’s jurisdiction was confined to matters relating to the alleged ‘unlawful cremation’ of the 2097 bodies in the police districts of Amritsar, Tarn Taran and Majitha only and to award compensation under Section 18 of the Act in case it is found during an inquiry under Section 17 that there had been “violation of human rights” of those 2097 who were illegally / unlawfully cremated as “Lawaris”. It, accordingly once again rejected the plea raised by the learned counsel for the CIIP to the contrary. It was held that the Commission was required to enquire into violation of human rights as per the remit under the Supreme Court’s order dated 12th December, 1996 and took the view that the scope of the subject matter of the inquiry by the Commission pertained to the examination of and grant, in appropriate cases, of relief to such of the legal heirs of 2097 persons, whose bodies were “unlawfully cremated” in the crematoria of the three police districts of Amritsar, Tarn Taran and Majitha, if it was found that their Human Rights had been violated.

A perusal of the record reveals that proceedings could not, even thereafter, make any headway as learned counsel for the CIIP on 28th February, 1999 filed a Review Petition seeking re-consideration and review of the orders of the Commission dated 13th January, 1999. While rejecting the review petition dated 28th February, 1999, by its order dated 14th March, 1999, the Commission recounted in para 2 of its order various submissions raised by the learned counsel for CIIP before the Commission during the hearing culminating in its order of 13th January, 1999 and opined that the pleas raised in the review petition were a repetition of the submissions made before the Commission, on earlier occasions, which had not been accepted by the Commission. Quoting from its earlier order of 13th January, 1999, whereby the Commission had rejected the argument raised by the petitioner, it said:

“She (Ms Nitya Ramakrishan, Counsel for CIIP) urged that in view of the wide terms in which the Supreme Court expressed itself for the proceedings before the Commission, the Commission would be in error in imposing upon itself a narrow view of its own jurisdiction. She urged that an interpretation consistent with upholding justice and Human Rights and human dignity should be preferred, as else, she said, the high expectations of the people would remain unfulfilled as the matter concerns a tumultuous phase in modern Indian history where the State had lost control over the situation and those who wielded the coercive force of the State had run amuck…….”

………….
………….

“The Commission has bestowed anxious thought to this argument which was articulated in strong and emotional terms. The Commission should not be understood as belittling the seriousness of the question and issues raised by the learned counsel; but the question is whether such a larger exercise was intended by the Supreme Court to be undertaken by the Commission. On a careful consideration, the Commission is unable to subscribe to the expansive interpretation of the scope of its task suggested by the petitioners.

In our opinion, the observations of the Supreme Court excerpted above and relied upon by Ms.Nitya Ramakrishnan do not have the effect of enlarging the scope of inquiry which, by the order dated 15.11.1995 was confined to the averments in the Press Note of 16.1.1995…..”.


The Commission also reproduced some of the paragraphs from the review petition and then observed:

“The Commission wishes to say that these are no doubt important issues. If the Commission had, otherwise than through the order of the Supreme Court, jurisdiction to go into the aforesaid issues, the argument that the Commission unfairly restricted its own powers would be meaningful. But the Commission, in view of its statutory limitations, has to draw its jurisdiction from the remit and mandate of the Supreme Court. The question, therefore, is not whether it is desirable that serious issues arising out of what is perceived as a violation of human rights on a mass scale alleged to have occurred in Punjab should be investigated or not. The limited question is whether such is the scope of the present remit of the Commission.”


The Commission rejected the plea raised by the CIIP to the effect that the task of the Commission was “to ascertain the general pattern in the killings that culminated in the cremations”. The prayer of the learned counsel for the petitioner that the Commission could seek clarifications from the Supreme Court if it doubted “the correctness of the stand of the petitioners in regard to broad scope of the remit” was also rejected.

The argument of the learned counsel for the CIIP that the observations of the Supreme Court that the Commission shall examine all issues that may be raised by learned counsel for the parties required the Commission to adjudicate on the issue regarding the “pattern of killing” raised by CIIP was rejected. The Commission explained the import of the expression “all the issues which are raised before the Commission by the learned counsel for the parties” in the order of remit and opined:

“The observations of the Apex Court relied upon merely convey that all issues that may be raised by the learned counsel for the parties related to and arising in connection with the cremation of the dead bodies in the crematoria located in the three Police Districts of Amritsar shall be determined by the Commission. The issues would be such as the awarding of compensation and other appropriate and related reliefs wherever appropriate and justified.”

For these very reasons, the argument of Ms. Jaisingh on the same lines, which was rejected on the earlier occasion, cannot be accepted now. Also, on a parity of reasoning, the submission of Ms. Jaisingh that the requirement of determining “factual foundations” (order dated 4.8.1997) implied that the Commission was required to investigate into the ‘manner and method of killing’ of the persons whose bodies were unlawfully cremated, cannot be accepted. The “factual foundation” which has to be considered concerns the violation of human rights on account of ‘unlawful cremations’ of the bodies as ‘unclaimed/unidentified’ and not matters which were entrusted by the Supreme Court to the CBI.

We may also at this stage refer to the first Public Notice issued by the Commission. On 13th January, 1999, the Commission by its separate order directed issuance of a ‘Public Notice’ inviting claims from legal heirs of 2097 persons alleged to have been “unlawfully cremated” in the three specified police districts. The format of the public notice formed part of the order. In the public notice it was, inter alia, said:

“Under the directions of the Hon’ble Supreme Court of India, the National Human Rights Commission is conducting an inquiry into the circumstances, leading to the cremation by the Punjab Police of 2097 bodies as unclaimed/unidentified in the Police Districts of Amritsar, Majitha and Taran Taran between June 1984 – December, 1994. If, as a result of the inquiry, it is found that the cremation of the bodies was not in accordance with lawful procedure or done with a view to destroying evidence of any offence committed in relation to such person, the Commission may in appropriate case or cases consider the further question of grant of compensation to the legal heirs/dependants of the deceased.

For the aforesaid purpose the National Human Rights Commission invites claims/applications from the legal heirs/dependants of the deceased claiming that he was illegally cremated by the Punjab Police consequent upon his or her death in unnatural circumstances.”
(Emphasis supplied)

‘Public Notice’ (supra) was in tune with the consistent view of the Commission that under the remit, it was required to investigate into complaints of “unlawful cremations” of 2097 bodies in the three police districts of Amritsar and in appropriate cases consider the further question of grant of compensation to the legal heirs/dependants of the deceased. The CIIP did not question the “correctness of the Public Notice” A similar notice was once again published in the leading news papers on 19th July, 2004, pursuant to the proceedings of the Commission dated 17th March, 2004 and the Commission has received more than 1800 claims in response thereto.

After the order of the Commission dated 24.3.1999 rejecting the review petition filed by the CIIP, the petitioner, CIIP, through its counsel on 23-8-1999 filed a Criminal Misc. Petition in the Supreme Court seeking “clarification of scope of reference” made by the Supreme Court to the NHRC vide its order dated 12.12.1996. In that application, history of the case was recounted and many questions were formulated. We may, however, only refer to some of the paragraphs in the application.

In paragraph (4) (H), it was said:

“Whether, the reference to the NHRC dated 12.12.1996, asking it to adjudicate upon, all the “remaining issues” and/or all “the issues which are raised before the Commission by the learned counsel for the parties” can be interpreted as being restricted to the issue of grant of compensation and related issues? The Indian Constitution guarantees the right to life as a fundamental right. The allegation is that this right was violated on a massive scale, throughout the State and in a systematic manner, over several years. It is also submitted that such a scale and spread of violations could not have been committed at just the local level. Any investigation into the thousands of “disappearances” alleged would have to encompass within itself the systemic aspects of the crime. This would also be necessary for the purpose of coming to a just and fair measure of compensation (which after all is a measure of justice) as a remedy in Public law. This is also necessary in order to keep faith with India’s international commitments under the international Covenant and Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966.”

Paragraph (5) (xi):

“Upon entering into the reference the NHRC first invited the parties before it to submit on the scope and terms of the reference made to it by this Court as well as, the nature of the jurisdiction enjoyed by the Commission with respect to the reference. It was the case of the petitioners before the Commission that, for the purposes of the reference, it was a sui generis designate of the Supreme Court with all the powers necessary to complete the inquiry entrusted to it, including those conferred upon it by the Protection of Human Rights Act, 1993. The petitioners pointed out that, the factum of ‘violation’ having been established, it was the role of the NHRC to delve deeper and to inquire into the implications of this violation. This inquiry would include, besides grant of compensation to the victims, investigation into the systemic aspect of the violation. Elaborating on the ‘systemic aspect’ of the matter it was, inter-alia, submitted that:


a) in themselves the ‘cremations’ were illegal and violative of the Punjab Police Rules;

b) the ‘cremations’ must be viewed in the context of the fact that over two thousand persons were missing in the district of Amritsar alone;

c) such a massive (and systemic) operation could not have been carried out without the knowledge/support of the higher echelons of the State apparatus;

d) since the CBI investigation into three cremation grounds discloses a ‘pattern’ it was necessary to understand and investigate how far the patter extended to the rest of the State;

e) it was also necessary to discover the correlation between the complaints about missing persons, police abductions, illegal detentions and false encounters on the one hand and the illegal cremations on the other;

f) it was also the mandate of the NHRC to understand the nature of the ‘systems failure’ in the State structure that permitted such flagrant and widespread human rights violations;

g) the NHRC would also need to enumerate the ‘steps’ necessary to ensure that such violations do not recur”.

(underlined by us)



Paragraph (5) (xxii) (e):

“The NHRC is misconceived in attempting to make “cremation” a necessary criterion for a claim before it where it is the allegation that, post abduction by the police, the killing and the cremation was done without the knowledge of the family.”

Paragraph (5) (xxiv):

“By order dated 13.1.1999, the NHRC passed yet another order which is called “ORDER ON THE SCOPE OF INQUIRY”. In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to – “award of compensation and other appropriate and related reliefs wherever appropriate”) connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon’ble Court. Further, that the scope of the inquiry under this court’s direction is limited only to those illegal killings/disappearances that culminated in the cremation of 2097 bodies in the said crematoria namely, the Durgyana Mandir, Amritsar, the Patti Municipal Committee Crematorium and the Tarn Taran Crematorium, located in the above said district of Amritsar.”

(underlined by us)
Paragraph (5) (xxvi) (j):

“The NHRC’s mandate is based upon the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966. The attempts of a human rights tribunal must always be to ensure State accountability and discourage attempts to win impunity.”

Paragraph (5) (xxvii):

“However, the NHRC rejected the plea for a reconsideration of the said order on the erroneous view that, under the terms of the ‘remit’ from this Hon’ble Court, it was only referred the “…issue of cremation of 2097 dead bodies as unclaimed bodies by the police in the aforesaid police districts”. The NHRC also rejected the prayer asking that it itself seek a clarification from this Hon’ble Court by holding that the view of the petitioner is not “….one of the possible views flowing from the directions of the Apex Court.”
(underlined by us)
Paragraph (5) (xl):

“Having failed to persuade the NHRC to reconsider its stand in the lights of its submissions or even to refer matter back to the Supreme Court for clarification, the petitioners have no choice but to move this Court for necessary clarifications. Particularly since, this Court and the NHRC have both held that the Supreme court retains “seisin over the matter”.”

The prayer made in the petition was:

“a) The NHRC has to investigate and give its finding on every complaint of illegal abduction, enforced disappearance, arbitrary execution and disposal of dead bodies carried out through out Punjab;

b) The NHRC has to examine the antecedents, circumstances, character, and contexts of such violations to determine the variety of over lapping rights inherent in the rights to life, liberty and equality before the law, which have been destroyed;

c) The NHRC has also to determine the multi fold spiral of responsibility that permitted such a systematic practice of crimes against humanity, including the identities of officials and agencies that conducted connived or knew, and did not take measures in their power to prevent, suppress or to report them;

d) The inquiry must also identify the victims, i.e. the persons who individually and collectively suffered harm, including physical and mental injury, emotional suffering, economic loss or impairment of their fundamental rights in other ways. The process of identification must also include, apart from family and dependents of the disappeared and killed, such other persons who suffered harm in process of attempting to prevent these offensives and in helping the victims;

e) Quantification of compensation and development of other measures of restitution and rehabilitation, including suggestions for ensuring that such crimes are not repeated in the future, must then be evolved based on criteria through the determination of the aforementioned issues.”

In the petition, the petitioner also referred to certain interim report based upon “a detailed documentation of 838 cases of disappearances’ and the inquiry conducted by the CCDP in respect of alleged disappearances in Punjab during the period 1984 to 1995.

The application filed by the CIIP on 23-8-1999, was dismissed on 11.10.1999. Their Lordships of the Supreme Court, while rejecting the application, said:

“We are not prepared to interfere with the order of the National Human Rights Commission or proceedings which are being conducted there at the instance of this Court. If any fresh instances of killing or disappearance have come to the notice of the applicant, which are not the subject mater of enquiry of the CBI, the applicant may either approach the Court under Article 32 of the Constitution or recourse to any other remedy available under law including a writ petition under Article 226 of the Constitution.

Applications for clarification and stay rejected.”

The petitioner, CIIP, however made no reference to the filing of the application dated 23-8-1999 against the orders of the Commission dated 24th march, 1999 rejecting the review petition filed by CIIP, or the order of the Supreme Court dated 11.10.1999 either in their written submissions filed before the Commission (supra) or in the present petition (A1-9/9). It appears that the petitioner, CIIP, kept back this information from the Commission, which is not only unfortunate, but makes CIIP guilty of suppressio veri . The rejection of the application, filed by the CIIP on 23.8.1999 in the Supreme court (supra), clearly negatived all such pleas as were raised by the petitioner repeatedly before the Commission.

Shri Ashok Agrwaal, learned counsel for the CIIP even after the order of the Supreme Court dated 11-10-1999 once again asked for enlarging the scope of enquiry or in the alternative to make a reference to the Supreme Court to seek clarification about the scope of inquiry. No reference was made to the rejection of its application by the Supreme Court, vide order dated 11th October, 1999 even at that point of time. The Commission by its order dated 15th February 2001 rejected the “fresh prayer for reviewing its earlier orders and enlarging the scope of enquiry” or to seek “clarification” from the Supreme Court regarding the scope of the remit. The Commission observed:

“So far as the scope of these proceedings emanating from a remit by the Supreme Court is concerned, that is already determined by the earlier orders of the Commission dated 4.8.1997 and 13.1.1999. The order of the Supreme Court dated 10.9.1998 also does not give any indication that the determination of the scope of enquiry by this Commission requires any reconsideration. It is for this reason that earlier by orders dated 24.3.1999 and 8.9.1999 prayers made for reviewing the Commission’s order determining the scope of inquiry were rejected. For the same reason a fresh prayer for reviewing the earlier order and enlarging the scope of enquiry by this Commission cannot be accepted.

Shri Agrawal then submitted that the Commission may make a reference to the Supreme Court seeking clarification on the scope of enquiry remitted to the Commission by its order dated 12.12.1996. We do not consider it necessary to seek any such clarification since the Commission does not entertain any doubt in that behalf. It is, however, open to the petitioners to seek any such clarification from the Supreme Court, if so advised.”

(Emphasis ours)

On 11th November, 2004, the Commission while awarding compensation in favour of next of kin of 109 persons, who had died while in the custody of the police and whose bodies had been cremated as unidentified/unclaimed, once again reiterated its view about the scope of inquiry before the Commission and recapitulated some of the earlier orders in that behalf.

For the detailed reasons given in the order dated 11.11.2004, we are not persuaded to review the order dated 11-11-2004, as regards the amount of compensation also, as pleaded by learned counsel for CCDP.

Undeterred by the clear mandate of the remit by the Supreme Court and its orders dated 10th September, 1998 and 11th October, 1999 upholding the consistent view of the Commission, repeatedly expressed, regarding the scope of inquiry, learned counsel for CIIP has now filed this petition (A1-9/9) raising pleas similar to the ones raised by him on various earlier occasions which stood repeatedly rejected. Some of the pleas had been raised even in the application filed by CIIP in the Supreme Court on 23-8-1999 which was rejected by that court on 11-10-1999. There is, thus, force in the submission of the learned Solicitor General that the filing of the petition A1-9/9 is an abuse of the process of the Commission. The petition (A1-9/9) contains no fresh material. It again aims at asking the Commission to enlarge the scope of enquiry overlooking various earlier orders of the Commission more particularly the orders of 4th August, 1997; 13th January, 1999; 24th March, 1999; 15th February, 2001 and 11th November, 2004.

We are constrained at this stage to observe that despite the following comments of Their Lordships of the Supreme Court, made in their order dated 10.9.1998, deprecating the attitude of the parties to delay the 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 various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, 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. 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 Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter.”
(Emphasis ours)

the same attitude of CIIP has continued even after 10th September, 1998. Thanks to the permissiveness of the judicial system and the indulgence by the Commission, CIIP has continued to file application after application for “clarification”; “reconsideration”; “review” and to “seek clarification from the Supreme Court regarding scope of inquiry”. We have already referred to all such petitions and do not wish to repeat the same. The manner in which repeatedly settled issues regarding the scope of inquiry before the Commission have been sought to be reopened by the CIIP, creates an impression that it perhaps is not sensitive to the need for an expeditious grant of compensation and rehabilitation to the affected families. The repeated petitions filed by CIIP have delayed the “grant compensation to the legal heirs” or next of kin of the deceased whose bodies had been “unlawfully cremated” as “unidentified” / in appropriate cases as well as the rehabilitation of the effected families, and we disapprove that attitude.

As a result of the above discussion we reject and dismiss the petition (A1 – 9/9) filed by CIIP.

Before parting with the order, however, there is one more aspect we wish to comment upon. It is the objectionable and intemperate language used by the learned counsel for the petitioner in this petition A1-9/9. In this connection, we may only refer to some paragraphs of the petition.



In para-1(C) at page-12, it is stated:

“Whether the Commission can not conclude the present proceedings by restricting its inquiry to the violations of rules pertaining to cremation of unidentified/unclaimed bodies by the police?

This proposition has never been aired prior to the hearing in the case on 5.5.2005. It has only to be stated to be rejected.”

Again, the following statements:

“It is respectfully submitted that the petitioner committee cannot agree with this interpretation of mandate by the NHRC. It, further, submits that the order dated 11.11.2004 (unless interpreted as amount to award of an interim compensation) and, the pronouncements by the Commission with respect to the manner it wishes to proceed in the other cases comprising the present proceedings, hit at the core of these proceedings. The stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence.”

In para 3 of the petition , it is stated:

“Without clarifying its stand with respect to the award made vide its order dated 11.11.2004, in subsequent hearings, the NHRC has orally indicated that it is inclined to conclude the proceedings with respect to the “remaining” cases also, on the basis of a severely restricted interpretation of the expression “human rights violation”. By this interpretation, the Commission has stated that it would consider its mandate from the Supreme Court discharged by a determination of whether the cremations carried out by the police were in accordance with the rules or not.”

Not only is it objectionable and not permissible to refer to some observations of the Commission/Bench made during hearing, not based on any court record or proceedings but to say that the ‘proposition’ of the Commission ‘has only to be stated to be rejected’ is most uncalled for. The use of the expression “the stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence”, is equally objectionable. Learned counsel for the CIIP has permitted himself the liberty of using such objectionable expressions as farcical and mockery – it is, in any event, not for a party to ‘reject’ a proposition made by the Bench. It is open to it to question it in higher forum, which has not been done.

Even, otherwise it is also factually incorrect to say that the ‘proposition’ had “never been aired prior to the hearing of the case on 5.5.2005”. In this connection a reference to various averments made by the petitioner itself in its application filed in the Supreme Court on 23.8.1999, exposes the falsity of the statement. Reference in this connection be made to various paragraphs including paragraph 5 (xxiv) of that petition, wherein interalia it was said :

“By order dated 13.1.1999, the NHRC passed yet another order which is called “ORDER ON THE SCOPE OF INQUIRY”. In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to – “award of compensation and other appropriate and related reliefs wherever appropriate”) connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon’ble Court.”

It would be relevant in this connection to also refer to paragraph 8 of the order of the Commission dated 13.1.1999, wherein it was observed:

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

Thus, making such factually incorrect statements do no credit to the petitioner.

Besides, it is unknown to legal jurisprudence that the Commission be asked by a party to litigation that it needs to, before proceeding further, “clarify its stand with respect to the award made vide its order dated 11th November, 2004.

The order of 11th November, 2004 is clear. A short reference to the following observations in the order dated 11.11.2004 would show that no “clarification” of any “stand” of the Commission is required. It only requires the order to be read carefully and understood.

“It, therefore, follows that this Commission would be totally justified and, in the facts and circumstances of the case, duty bound and obliged to redress the grievances of the next of kin of the deceased by award of monetary compensation for infringement of the indefeasible right to life of deceased and apply balm to their wounds. This claim, as has been noticed in an earlier part of the order is based on the principle of strict liability. The award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is an appropriate remedy available in public law jurisdiction for repairing the public wrong. The NOK of the deceased, therefore, must receive the amount of compensation from the State of Punjab which is vicariously liable and cannot be absolved of ‘its responsibility of safe keeping of the citizen in its custody. We accordingly hold the State of Punjab liable to make monetary amends for the infringement of the right to life of the deceased, who were in the custody of its police prior to their death by paying compensation to NOK of the deceased. The second question is answered accordingly.”
xxx xxx xxx
xxx xxx xxx
“It is clarified that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for infringing the right to life of the deceased by any act of omission or commission, lest it should prejudice any of the parties in the investigation being carried out by the CBI to determine the culpability under orders of the Hon’ble Supreme Court. In fact, the grant of this monetary relief by us is without prejudice to the rights of the parties.”

The CIIP did not question the award / order of the Commission dated 11th November, 2004. Various proceedings which took place after 11-11-2004, show that not only the State of Punjab honoured the award, as indeed it was duty bound to because of the clear direction of the Supreme Court in its order of remit to the effect that “any compensation awarded by the Commission shall be binding and payable” but the beneficiaries, barring a few, have already received the compensation and accepted the order dated 11-11-2004. We, therefore, record our strong disapproval against the language used by the petitioner. Learned counsel for the petitioner would be well advised to conform to judicial discipline and desist from making use of intemperate and objectionable language in his applications. We leave the matter at that and say no more.

Petition A1-9/9 is, for what precedes, dismissed.


(A.S. Anand)
Chairperson


(Shivaraj V. Patil) (Y. Bhaskar Rao) (R.S. Kalha)
Member Member Member


















BEFORE
THE NATIONAL HUMAN RIGHTS COMMISSION
NEW DELHI

Misc. Petition No. A1- 9/9 in
Reference Case No.1/97/NHRC



The draft proceeding in the above case is sent herewith for perusal and consideration.


Chairperson

Dr. Justice Shivraj V. Patil, Member
Justice Y. Bhaskar Rao, Member
Shri R.S. Kalha, Member
 

 

NATIONAL HUMAN RIGHTS COMMISSION

FARIDKOT HOUSE

NEW DELHI

 

Reference Case No. 1/97/NHRC

 

Date :    15th May, 2006

 

Reference made by the Supreme Court of India on Writ Petition Nos. 447/95 and 497/95.

 

CORAM

 

         Dr. Justice A.S. Anand, Chairperson

          Dr. Justice Shivaraj V. Patil, Member

          Justice Shri Y. Bhaskar Rao, Member

                Shri R.S. Kalha, Member

                                         

PRESENT

 

1.      Smt. Nitya Ramakrishnan, Advocate for  the petitioners in

       W.P. No. 447/95, CIIP

 

2.    Shri Pandey Rajesh, Advocate and Shri Jai Singh 

       Advocate  on behalf of  Committee

       for  Coordination  on Disappearances  in Punjab

 

3.    Shri R.S. Suri,  Advocate for the State of Punjab

 

4.    Shri Sudhir Walia, Advocate  for Punjab Police Officers

 

5.    Shri Jagdish Kumar, DIG/Litigation along with

       Shri H.S. Sidhu, AIG, Litigation, Punjab

 

PROCEEDINGS

 

On 3rd April, 2006, certain directions were issued to the State of Punjab. 

 

Pursuant to the directions, State of Punjab has placed on record copy of the publication in the newspaper ‘Daily Ajit’ and ‘Punjab Kesari’ in respect of the deceased mentioned at Sl. No. 452. Copies of those publications be retained on the  record.

 

Shri R.S. Suri, Counsel for the State of Punjab has submitted that the amount of Rs.95 lakhs has been deposited with  the Office of Deputy Commissioner, Amritsar for disbursement as compensation to the next of kin of  38 deceased.  This fact is  also confirmed by a FAX message dated  12th May, 2006 received from the Office of Dy. Commissioner, Amritsar, in the Commission.

 

It is further submitted by the Counsel for State of Punjab that disbursement of compensation have been made to  next of kin of the 20 deceased out of 38 deceased pursuant to the directions of the  Commission and efforts are on to disburse compensation to the next of kin of remaining  18 deceased. Counsel for State of Punjab shall inform the Commission about the disbursement of compensation to remaining NOK by the next date of hearing.

 

Shri R.S. Suri further states that Rs.2.50 lakhs, for payment as compensation to the next of  kin of Ram Singh s/o Bura Singh has also been deposited by the State of  Punjab with the Office of  the Dy. Commissioner concerned. He shall inform the Commission by the next date of hearing whether the compensation amount has been disbursed to the  next of kin of the deceased, Ram Singh.

 

Learned Counsel for the petitioners submit  that they have not been able to verify the contents of  affidavit  filed by the State of Punjab dated 29th March, 2006  because of the voluminous nature of record. It is submitted by Ms. Nitya Ramakrishnan appearing for petitioners that the requisite response would be filed within  next two weeks  with  an advance copy to the State of Punjab.

 

The State of Punjab, today has  filed an application dated 12th May, 2006,  stating that on further analysis  of the affidavits filed on behalf of the  State of Punjab vis-à-vis the parameters fixed by the Commission in its earlier orders dated 11th November, 2004 and 4th October, 2005,  it has been found that 42 deceased persons out of the deceased persons detailed in chart of further identified 595 dead bodies  filed on last occasion, particulars whereof have  been given in Annexure ‘A’  to the application also fall within the category of  “deemed custody” of the police,  immediately prior to their death and cremation. Besides, it is submitted that three other deceased who were mentioned in the earlier lists of identified deceased,  namely,  (1)Raghbir Singh, S/o Shri Mohinder Singh Jat; (2) Manjit Singh @ Manna s/o Ajit Singh Jat, and (3)  Rajinder Singh, S/o Kishan Singh would also be covered in the category of  “deemed custody” cases. Thus,  NOK of all these 45 deceased would squarely fall within the parameters  fixed by the Commission on 11th November, 2004. Ms.Nitya Ramakrishnan, Counsel for the petitioners does not dispute the correctness of this statement.

 

The Commission, therefore, directs that next of kin of the 45 deceased persons viz:-

Police District-Tarn Taran

 

 

S. No.

CBI NO.

 

Particulars of the deceased

1

53/131

Shri Raghbir Singh, S/o Shri Mohinder Singh Jat R/o Sirhali Khurd, PS Sadar, Tarn Taran

 

2

166/648

Shri Manjit Singh @ Manna S/o Ajit Singh Jat, R/o Baserke, Police Station Chheharta, District Amritsar

 

3

B-36/412

Kashmir Singh, S/o Dalip Singh, R/o Kotli Naseerpur, PS Sadar Batala

 

4

C-67/132

Tarsem Singh @ Manga, S/o Mohinder Singh Majbi, R/o Sirhali Mandan PS Patti

5

C-68/133

Swaran Singh @ Swarna, S/o Teja Singh Majbi, R/o Sanghe, PS Sadar, Tarn Taran

 

Police District-Amritsar

 

6

A/223/29

Rajinder Singh, S/o Kishan Singh, R/o Kotli Malian, Kathunangal

7

B-43/4

Kulwinder Singh, S/o Sadhu Singh, R/o Tibba, PS Sultanpur Lodhi

8

B-52/7

Jasbir Singh @ Major Singh, S/o Nirajan Singh Jat R/o Samrai PS Hgargobind Put up thereafter. Distt. Gurdaspur

9

B-77/11

Malkiat Singh, S/o Gian Singh, R/o Muddal

10

B-78/12

Parmjit Singh @Pamma, S/o Bachan Singh Jat, R/o Longomahal PS Ramdas

11

B-79/13

Balbir Singh @ Bira @ Kanda Hawaldar Gurdaspuri, S/o Kartar Singh Parjapat, R/o Fathegarh Churian

12

B-183/26

Gurdev Singh, S/o Bhagwan Singh, R/o Thathgarh now Adarsh Nagar

13

B-214/34

Jagjit Singh, S/o Harbans Singh, R/o Chowk Karrori

14

B-284/42

Arjan Singh, S/o Swaran Singh, R/o Dalla, PS Lopoke

15

C/28/31

Ranjit Singh, S/o Harjit Singh, R/o Chatan Pura PS Majitha

16

C/37/40

Ajmer Singh, S/o Lal Singh, R/o Vadala, PS Majitha, Asr.

 

 

 

Police District-Majitha

 

17

B-40/1

Gurmej Singh, S/o Hari Singh, R/o Vaiee Pooien PS Verowal

 

18

B-41/2

Baldev Singh, S/o Jagir Singh, R/o Sangar Kalan

 

19

B-117/17

Baldev Singh, S/o Khazan Singh Jat, R/o Gujjarpura, PS Majitha

 

20

B-252/29

Major Singh, S/o Darshan Singh Jat, R/o Johal Raju Singh

 

 

21

B-293/35

Kulwinder Singh @ Kanta @ Fauji, S/o Mohinder Singh, R/o Kot. Hyat

 

22

B-326/39

Hardial Singh, S/o Gurnam Singh, R/o Ghaseetput Dera Baba Nanak

 

23

B-328/40

Gurcharan Singh @ Bishnindi, S/o Joginder Singh, R/o Jatio

24

B-341/43

C-342/244

Narinder Singh @ Bittu, S/o Darshan Singh Jat, R/o Bharath PS S.H. Gobindpur

25

B-346/45

Dalbir Singh, S/o Dham Singh Jat, R/o Lohka PS Patti

26

B-351/47

Gurdarshan Singh @ Bagel Singh @ Bagela, S/o Bahadur Singh, R/o Dheriwal

27

B-352/48

Rakesh Kumar @ Pappu, S/o Jagdish Raj, R/o Mehsampura

28

B-367/51

Surjit Singh @ Bubbi, S/o Gurbachan Singh, R/o Bhangali Kalan

29

B-368/52

Amanpreet Singh @ Mintu, S/o Joginder Singh, R/o Butala

30

B-373/53

Bhagwant Singh @ Bhatta, S/o Diwan Singh, R/o Loggarh

31

B-399/59

Karamjit Singh, S/o Santokh Singh, R/o Pachade

32

B-422/65

Jagir Singh, S/o Gurdial Singh, R/o Dhodian

33

B-423/66

Charanjit Singh, S/o Puran Singh, R/o

Kalaha

34

B-431/68

Sukhraj Singh @ Laddi, S/o Kartar Singh, R/o Gumtala

35

B-534/80

Daljit Singh @ Billa, S/o Gopal Singh, R/o Anaitpura, PS Ramdas

36

B-551/87

Sardara Singh, S/o Deba Singh, R/o Ramana Chak

37

B-620/100

Pargat Singh, S/o Sardara Singh,

 

38

C-28/28

Lakhwinder Singh, S/o Ram Singh Jat, R/o Bannian

39

C-32/32

Davinder Singh, S/o Chanan Singh, R/o Vill. Chainpura, PS Ajnala

 

40

C-152/115

Sukhchain Singh @ Doctor, S/o Tarlok Singh, R/o Kandowali

41

C-462/273

Sucha Singh @ Joga Singh, S/o Pratap Singh, R/o Bhaswan 

42

C-463/274

Raj Singh @ Raja, S/o Mangal Singh, R/o Village Tole Nangal PS Raja Sansi

43

C-493/285

Billa, S/o Karaj Singh, R/o Krishna Nagar, Amritsar

44

C-561/315

Sarabjit Singh, S/o Shingara Singh Mazbi, R/o Vill. Pathan Nangal

45

C-585/328

Sarabjit Singh @ Sabha, S/o, Satnam Singh, R/o Cheema Khudi

 

 

are also entitled to receive monetary relief in terms of directions of the Commission dated 11th November, 2004 @ Rs.2.50 lakhs. The State of Punjab shall deposit the amount for disbursement of monetary relief to the next of kin of the aforesaid 45 deceased within four weeks  with Deputy Commissioner, Amritsar,  who shall thereafter take expeditious steps for disbursement of the amount to the concerned NOK.

 

The State of Punjab has also, with the petition dated 12.5.2006, appended a list (Annexure ‘B’) stating that the names of 28 deceased persons in Lists ‘A’,  ‘B’ and ‘C’ filed by the CBI have been duplicated. Ms.Nitya Ramakrishnan submits that she would verify the correctness of this and within two weeks give a response, if any.

 

The matter to come up on 1st June, 2006 at 11.30 A.M.

 

 (Justice A.S. Anand)

Chairperson

 

(Justice Shivaraj V. Patil)

 Member

 

(Justice  Y. Bhaskar Rao)

Member

          (R.S.Kalha)

Member

 

NATIONAL HUMAN RIGHTS COMMISSION

FARIDKOT HOUSE

NEW DELHI

 

 

Reference Case No. 1/97/NHRC

 

Date :    8th March, 2006

 

Reference made by the Supreme Court of India on Writ Petition Nos. 447/95 and 497/95.

 

CORAM

 

         Dr. Justice A.S. Anand, Chairperson

          Dr. Justice Shivaraj V. Patil, Member

          Justice Shri Y. Bhaskar Rao, Member

                Shri R.S. Kalha, Member

                                         

PRESENT

 

 

1.      Shri Trideep Pais, Advocate for  the petitioners in

       W.P. No. 447/95, CIIP

 

2.    Shri Ashok Panigrahi, Advocate on behalf of Amicus Curiae

 

3.    Shri C.Gonsalves, Sr, Advocate  along with 

       Shri Jai Singh,  Advocate  on behalf of  Committee

       for  Coordination  on Disappearances  in Punjab

 

 

4.    Shri R.S. Suri,  Advocate for the State of Punjab

5.    Shri V.K. Shailendra, Advocate for the State of Punjab

 

6.    Shri Sudhir Walia, Advocate  for Punjab Police Officers

 

 

7.    Shri Jagdish Kumar, DIG/Litigation, Punjab

 

 

8.    Shri A.S. Singh, Advocate on behalf of

       Shri  R.V. Sinha, Advocate for Union of India

 

9.    Shri Veerender Kumar, Sr. Public Prosecutor, CBI

 

 

PROCEEDINGS

 

On 9th January, 2006, certain directions were issued to the State of Punjab.

 

The first direction pertained to ascertaining the reasons for non-disbursement of monetary relief to the next of kin of persons mentioned in the list at serial numbers – 65, 59, 70, 48, 31 and 452.

 

The second direction was to file a detailed chart indicating the fact position by reference to the affidavits filed in the case in respect of each one of  them giving chapter and verse from the record to indicate which of the procedural guidelines were not followed before the cremations were done in respect of those who were cremated.  The State shall also indicate various steps taken by it before cremating the dead bodies with reference to the affidavits to submit the circumstances under which procedural safe-guards could not be followed in those cases.

 

 

 

The third direction  related to efforts to be made by the State after inspection of records with the CBI and the Commission and the field visits to identify as many  as possible persons mentioned in Lists ‘B’ and ‘C’.

 

Learned Counsel for the State of Punjab has conveyed that disbursements to the next of kin of the deceased mentioned at Sl.No.59 ( CBI No. 401/82)  and 31 (CBI No. 234/25) has been  made. It is also stated that in respect of deceased mentioned at Sl.No.70 (CBI No. 481/129), 50% of monetary relief has been disbursed to the mother of the deceased and the remaining amount has not been disbursed as the matter regarding other successors is under consideration of the civil court. With regard to the deceased mentioned at Sl.No.48 (CBI No.344/57)  and 452 (CBI No. 27/54), it is stated that because of the non-availability of the heirs the disbursement has not been made. Shri Suri submits that in case of deceased mentioned at Sl.No.48,  monetary  relief could not be disbursed as the deceased left no real brother or sister and his parents had also expired and with regard to deceased mentioned at Sl.No.452 (SBI No.27/54, it is stated that none of the heirs were available and therefore, disbursement could not  be made. Shri Suri also submitted that next of kin of the deceased mentioned at Sl. No. 65 (CBI No.447/109) have declined to accept the compensation.

 

 We direct that efforts should be  made to find out the next of kin of the deceased mentioned at serial numbers 48 and 452  and in that regard to issue requisite notification in the newspapers calling upon the next of kin to put forward their claim before the Dy.Commissioner concerned.

 

The needful shall be done within four weeks.

 

In the chart filed by the State of Punjab detailing 593 cases of identified bodies, it is stated that this chart is apart from the ones to whom monetary relief had already been granted by this Commission vide its direction dated 11th November, 2004 and 4th October, 2005.

 

It is seen from the chart that  38 identified bodies (description given below) were admittedly in the  deemed custody of the police prior to their death and cremation.

 

Police District-Tarn Taran

 

 

S.No.

NHRC Sr. No.

CBI No.

Particulars of the deceased, parentage and address

1

1156

A/51/129

Harbhajan Singh s/o Fauja Singh Jat r/o Jandoke Police Station, Sadar, Tarn Taran

2

846

A/64/158

Ruldu s/o Bawa Muslim, r/o Pringri, Police Station Harike, Police District, Tarn Taran

3

420

A/73/197

Chanan Singh s/o Darshan Singh Jat, r/o Chuslewar, Police District Tarn Taran

4

248

A/93/268

Harbhej Singh @ Angrej Singh, s/o Ravail Singh Jat, r/o Dharar, Police Station Sadar, Tarn Taran

5

N.A.

A/120/389

Kulwant Singh, s/o Mohinder Singh Jat, r/o Musse Police Station Jhabal, Police District Tarn Taran

6

N.A.

A/128/421

Balwinder Singh, s/o Surjan Singh Mazbi, r/o Banwalipur, Police Station Sadar, Tarn Taran

7

881

A/152/589

Tarsem Singh @ Laddi, s/o Dalbir Singh Jat, r/o Bundala, Police Station Jandiala, Police District Majitha

8

1433

A/158/611

Jagir Singh @ Kulwinder Singh, s/o Jang Singh, r/o Sangatpura, Tarn Taran

9

N.A.

A/255/914

Harjit Singh, s/o Gurbaz Singh Jat, r/o Majhupur, Police Station Jhabal, Police District Tarn Taran

 

Police District-Amritsar

 

10

N.A.

A/76/2

Karnail Singh, s/o Ram Singh Jat, r/o Khadoor Sahib, PS Verowal, Amritsar

11

1713

A/145/9

Parkash Singh, s/o Shingara Singh, r/o Sultanwind, Amritsar

12

1713

A/146/10

Dharam Singh, s/o Shingara Singh, r/o Sultanwind, Amritsar

13

N.A.

A/185/19

Manjit Singh @ Lali, s/o Didar Singh, r/o Fattu Bhila, Amritsar

14

1128

A/195/23

Beer Singh, s/o Virsa Singh, r/o Khaper Kheri, PS Chheherta, Amritsar

15

N.A.

A/200/24

Dilbar Singh @ Titoo, s/o Ajit Singh, r/o Vishkarama Industry, G.T. Road, Amritsar

16

60

A/276/37 & A/278/39

Pargat Singh, s/o Udham Singh, r/o Marrii Megha, Amritsar

17

N.A.

A/277/38 & A/279/40

Balbir Singh, s/o Jeet Singh, r/o Tharoo, PS City Tarn Taran

 

Police District-Majitha

 

18

N.A.

A/109/8

Karnail Singh, s/o Shingara Singh, r/o Village Ghaniake Banger PS Fatehgarh Churian District Gurdaspur, Majitha

19

464

A/125/14

Gurjit Singh @ Baba Bota Singh, s/o Kunan Singh, r/o village Lushkari Nangal PS, Majitha

20

1657

A/175/18

Jagjit Singh, s/o Amar Singh Jat, r/o village Vanchari 

21

N.A.

A/249/27

Harbhajan Singh, s/o Sohan Singh, r/o Verka,

22

637

A/250/28

Gurmej Singh, s/o Lakha Singh Jat, r/o Pabbarali

23

211

A/266/34

Sukhdev Singh @ Sukha, s/o Amrik Singh Jat, r/o Bolian

24

774

A/324/53

Ranjit Singh @ Rana, s/o Avtar Singh, r/o village Ghanike Banger PS Fatehgarh Churian

25

442

A/377/72

Sukhwinder Singh @ Bittu, s/o Kabal Singh, r/o Chogawan PS Lopoke

26

134/1769

A/388/77

Kewal Singh, s/o Hazara Singh, r/o Dilwan, Dera Baba Nanak

27

148

A/409/85

Satnam Singh @ Retho, s/o Sher Singh Mazbi Sikh, r/o Sohian Kalan PS Majitha

28

N.A.

A/445/107

Surinder Singh, s/o Dalip Singh Jat, r/o Baba Bakala

29

N.A.

A/454/115

Pardeep Kumar @ Dilsher Singh, s/o Harbans Lal Pandit, r/o Bhagowal PS Sadar, Batala

30

857

A/472/123

Amrik Masih @ Gora s/o Rehmat Masih, r/o Abadi Faizpura

31

644

A/496/133

Baldev Singh @ Sabhi, s/o Karam Singh Jat, r/o Bundala PS Jandiala

32

1346

A/531/148

Gurmeet Kaur, D/o Mehnga Singh, r/o Pandori Thakhat Mal

33

488

A/557/154

Daljit Singh, s/o Kashmir Singh, r/o village Khiala

34

657

A/619/178

Balbir Singh, s/o Swaran Singh Mehra, r/o village Malakpur PS Ramdas

35

41

B/27/359

Satinder Singh @ Shindu, s/o Pritam Singh Jat, r/o Talwandi Chanchak, Police Station Patti, Police District Tarn Taran

36

1115

B/333/55

Tasbir Singh @ Tasbira, s/o Anoop Singh Jat, r/o Jhander, PS Majitha

37

828

B/591/94

Harbans Singh, s/o Narain Singh Mazbi, r/o village Gasitpura

38

541

C/191/150

Swaran Singh, s/o Dhian Singh Jat, r/o Mandranwala

 

In this fact situation, the case of these 38 persons would also be covered by the order of this Commission dated 11th November, 2004 read with order dated 4th October, 2005. In fairness to the State of Punjab it may be recorded  that Learned Counsel for the State of Punjab, Shri R.S.Suri, did not  dispute the suggestion that the cases of these 38 deceased cannot be treated in any different manner than the case of Paramjit Singh dealt with in our order of  4th  October, 2005 based on the  order dated 11th November, 2004.

 

In view of what we have noticed above, we hold that the cases of these 38 cases fall within the parameters considered by the Commission in its earlier orders of 11th November 2004 and 4th October 2005. We hold that the next of kin of all these 38 persons are also entitled to receive monetary relief to the tune of Rs.2.50 lakhs each  in terms of the order dated 11th November, 2004. The State of Punjab is directed to deposit the amount for payment of monetary relief to the next of kin of these 38 persons within three weeks. After the amount so deposited with the concerned DM, disbursement shall be  made in accordance with the procedures settled by the Commission in its order dated 11th November, 2004. Compliance of payment of monetary relief shall be submitted to the Commission within 12 weeks.

 

Learned Counsel for the State of Punjab submits that efforts have already been made to identify as many as possible out of the remaining unidentified bodies from the Lists ‘B’ & ‘C’ and that some progress has been made but for completing the exercise of identification of the deceased from Lists ‘B’ and ‘C’, some more time is required as efforts are being made to identify other persons. Three weeks more time is granted to Shri Suri, Learned Counsel for the State of Punjab, as requested, for doing the needful.

 

The matter to come up on  3rd  April, 2006 at 3.00 P.M.

 

 

 (Justice A.S. Anand)

Chairperson

 

 

(Justice Shivaraj V. Patil)

 Member

 

 

(Justice  Y. Bhaskar Rao)

Member

 

          (R.S.Kalha)

Member

 

 

 

 

NATIONAL HUMAN RIGHTS COMMISSION

FARIDKOT HOUSE, COPERNICUS MARG,

NEW DELHI

 

Reference Case No.1/97/NHRC

 

Date: 4th October, 2005

 

Reference made by the Supreme Court of India on Writ Petition Nos.447/95 and 497/95

 

CORAM:

          Dr.Justice A.S. Anand, Chairperson

          Dr.Justice Shivaraj V. Patil, Member

          Justice Y. Bhaskar Rao, Member

          Shri R.S. Kalha, Member

 

PROCEEDINGS

 

This order flows from our proceedings dated 11.11.2004 and will dispose of two miscellaneous applications filed by the State of Punjab on 11.1.2005 and 12.1.2005. Through these applications, the prayer made is that the District Magistrate, Amritsar be directed not to disburse monetary relief in terms of the order of the Commission dated 11.11.2004 in the following cases:

 

1.         Paramjit Singh (Sl. No. 67 in the list attached to the order dated 11.11.2004);

2.         Shinda Singh (Sl. No. 105 in the list attached to the order dated 11.11.2004);

 

3.         Jagdeep Singh (Sl. No. 98 in the list attached to the order dated 11.11.2004); and

4.         Desa Singh (Sl. No. 104 in the list attached to the order dated 11.11.2004)

 

            It is the case of the State of Punjab that these four persons were not in the admitted custody of the Punjab Police prior to their death and therefore, their cases do not qualify for inclusion in the list of 109 persons attached to the order dated 11.11.2004.

 

            Notice of the applications was issued to the opposite side and the Committee for Information and Initiative on Punjab (CIIP) has filed a response affidavit.  According to the affidavit, the assertion of the State of Punjab to the effect that S/s Jagdeep Singh (Sl. No. 98); Desa Singh (Sl. No. 104) and Shinda Singh (Sl. No. 105) were not in the ‘admitted’ custody of the Punjab Police prior to their death has not been controverted.  However, so far as the case of Paramjit Singh (Sl. No. 67) is concerned, the assertion of the State of Punjab to the effect that he was not in the custody of Punjab Police prior to his death, is disputed.  It is stated that on the own showing of the Punjab Police, through the affidavit of Shri Dilbagh Singh, Paramjit Singh had been apprehended by the Punjab Police in an injured condition and he died after he had been apprehended: It is, therefore, stated that in the established facts and circumstances, the name of Paramjit Singh was correctly included at Serial No.67 in the list and his next of kin are entitled to receive the compensation in terms of the order dated 11.11.2004.   Mr. Ashok Aggarwal has reiterated the same submissions.

 

            Since, during the arguments on 9.9.2005, learned counsel for the parties were in agreement that the names of S/s Jagdeep Singh (Sl. No. 98); Desa Singh (Sl. No. 104) and Shinda Singh (Sl. No. 105) did not qualify to be included in the list of 109 persons attached to the order of the Commission dated 11.11.2004, a direction was issued to the District Magistrate, Amritsar not to disburse monetary relief to the next of kin in respect of the said three deceased persons. The controversy at this stage, therefore, only is whether Paramjit Singh (Sl. No. 67) was in the custody of the Punjab Police prior to his death or not.

 

            The State of Punjab, through Shri Altaf Ahmed, Sr. Advocate, submitted that the circumstances under which Paramjit Singh, s/o Jaswant Singh, had died have been given in the affidavit of Shri Dilbag Singh, PPS (then Supdt. of Police (Detective), Majitha) filed in this Commission on 21st May, 2003. He submitted that Paramjit Singh had not been ‘arrested’ by the Punjab Police, and, therefore, the assertion that he died while in ‘custody’ of the police was incorrect.  In support of his assertion, he referred to the affidavit of Shri Dilbagh Singh as well as the response filed by the State dated 22.10.2004 and argued that the circumstances detailed in the affidavit of Shri Dilbath Singh established that prior to his death Paramjit Singh was not in the custody of Punjab Police. 

 

The circumstances as deposed to by Shri Dilbag Singh, PPS (then Supdt. of Police (Detective), Majitha) in the affidavit deserve a notice at this stage. It is stated:

 

“that the present case relates to FIR No. 52 dated 23.7.1992 u/s 307/34 IPC, 25/54/59  Arms Act, 5 TADA (P) Act PS Ramdas to the effect that on 23.07.1992 police party laid an ambush at turning point link road village Dujowal.  Then at about 9.30 pm three suspected persons were seeing coming on foot from village Dujowal side, who were signaled to stop but instead to stopping they started firing on the police party with intention to kill them.  The police party also retaliated the firing in self-defence. The firing between the police party and the terrorist continued with utmost precaution.  On search one wounded terrorist was found who disclosed his name as Paramjit Singh s/o Jaswant Singh Jat r/o village Vachhova, who succumbed to his injuries after some time.  The other associates of the deceased terrorist managed to escape under the cover of darkness.

                       

One 12 Bore DBBL rifle alognwith 6 empty cartridges of AK-47, a bag containing 1½ Kg. explosive were recovered from the site of encounter.”

 

            The response filed by the State of Punjab on 22.10.2004 is also to the similar effect.

 

            The affidavit filed on behalf of the State of Punjab, as reproduced above, clearly shows that Paramjit Singh was apprehended in an injured condition during the search of the area after an encounter between the suspected terrorists and the police party. According to the affidavit of Shri Dilbagh Singh, an injured Paramjit Singh had disclosed his name together with his parentage and address to the police when the police apprehended him prior to his death. In the affidavit of Shri Dilbag Singh, all that is stated is that the injured “succumbed to his injuries after sometime”. This assertion is totally vague. How soon was “after sometime” after the police party apprehended injured Paramjit Singh has not been disclosed?  According to the affidavit, dead body of Paramjit Singh was cremated “on 24.7.1992 at cremation ground of Shiv Puri Durgian Mandi, Amritsar”.  Encounter with the suspected terrorists took place at about 9.30 p.m,  but the affidavit does not disclose the time when injured Paramjit Singh was ‘found’ by the Police party during the search operations.  Where was the injured taken from the site is also not stated?  The time of death of Paramjit Singh has also not been disclosed nor is it stated as to the ‘place’ where the death actually took place.  Ofcourse, it is stated that the post-mortem of the dead body was conducted in the Medical College, Amritsar on 24.7.1992, but when and from where the dead body was sent for post-mortem examination has not been disclosed.  All these factors were in the exclusive knowledge of the Punjab Police only but they have not ‘disclosed’ the same in their affidavit, for reasons best known to them.     The very fact that the deceased, according to the affidavit of Shri Dilbag Singh, disclosed his name, parentage, caste and even the name of his village, indicates that the deceased was alive and in a position to speak after being apprehended by the police.  The affidavit also does not disclose whether any effort was made to provide medical aid to an injured person apprehended by the police and if no medical aid was provided the reasons for the same.  The affidavit of Shri Dilbagh Singh conceals more than what it reveals.  After the deceased was apprehended by the police party, he was both ‘defacto’ and ‘dejure’ in the custody of the police, as his right of free movement was certainly taken away by the Punjab Police. The death of Paramjit Singh, thus, occurred while the custody of the injured Paramjit Singh was with the police party. Whether or not his formal arrest was shown by the police prior to his death would not be of any consequence or relevance when the ‘defacto’ custody is established.

 

            The arguments on this issue were heard on 9.9.2005 and order was reserved.  After 10 days, on 19.9.2005, apparently to “meet” the arguments raised before the Commission and the observations of the Commission, a petition has been filed under the signature of counsel for the State of Punjab with a request to consider certain ‘additional information’ contained therein while making appropriate orders with regard to Paramjit Singh (Sl.No.67).

 

            The petition filed by the Advocate for the State of Punjab on 19.9.2005 is not supported either by an affidavit or any other material in support of the assertions contained therein.  An effort has been made in the application to improve upon the affidavit of Dilbagh Singh and the response filed by the State of Punjab on 22.10.2004.  A careful perusal of the petition shows that the sequence of events as narrated therein is almost similar to the one contained in the affidavit of Shri Dilbagh Singh and the response of the State dated 22.10.2004 except for two assertions.  In the affidavit filed by Shri Dilbagh Singh, it was stated thus:

 

When firing ceased, a search of the area was conducted with utmost precaution.  On search one wounded terrorist was found who disclosed his name as Paramjit Singh s/o Jaswant Singh Jat r/o village Vachhova, who succumbed to his injuries after some time.” (Emphasis supplied)

 

 

In the response filed by the State on 22.10.2004, the sequence is given thus:

 

“When the firing stopped, area was searched and police found one wounded terrorist who disclosed his name as Paramjit Singh, s/o Jawant Singh r/o Village Vachova but he succumbed to his injuries after some time.”  (Emphasis supplied)

 

 

The effort made in the petition dated 19.9.2005 appears to be to explain the vague term “after some time” and the state of health of the injured when apprehended.  In this petition it is stated:

 

After the firing stopped, the area was searched with the help of search lights and it was found that one sikh young man who was hit with the bullet was lying on the ground and was breathing with some difficulty.  The SHO who was leading the police party, inquired his name and address and he disclosed that he was Paramjit Singh, son of Jaswant Singh, Jat, resident of Village Vacchoa.  The injured person succumbed to his injuries within four/five minutes.” (Emphasis supplied)

 

 

The petition filed by the counsel for the State of Punjab, unsupported by any other evidence or even an affidavit, for the first time, states that the injured was found lying on the ground and “breathing with some difficulties”, and further that “the injured succumbed to his injuries within four/five minutes”.  These are new statements now sought to be introduced. What is the basis on which these assertions have been made is not at all understandable?  Surely, if these were in the knowledge of the Punjab Police, it would have found mention in the affidavit of Dilbagh Singh filed on 23.3.2003 or atleast in the response of the State of Punjab filed on 22.10.2004.  It is not there.  It appears to be clearly an after-thought, and in any event does not advance the case of the Punjab Police.  What is the basis for the counsel for the State of Punjab in the petition to say that the deceased was “breathing with some difficulties” or “he succumbed to his injuries within four/five minutes” is not at all spelt out in the petition.  There is no supporting material.  Where from did he acquire this knowledge? We do not know. The assertions, therefore, merits notice only to be rejected.

 

Some other factors mentioned in the petition filed on 19.9.2005 which are requested for being taken into consideration are contained in sub-paras (a) to (c) of para 5, which read thus:

 

“(a)      That the encounter took place at 9.30 p.m. in the area of village Dujowal, P.S. Ramdas and an FIR No.52 was registered on 23.7.1992.

 

(b)       That the nearest hospital where any medical treatment could be provided was at a distance of 10 kilometers from the place of occurrence.

 

(c)        That the village Dujowal is 4 kms away from the border of Pakistan and during the days of terrorism, there used to be curfew in the districts abutting the Pakistan Border for the security reasons.”

 

 

These assertions are also neither supported by an affidavit nor any other evidence placed on the record.  Why were these not disclosed earlier in the affidavit or response is not known? These factors now appear to have been introduced to explain as to why even medical aid could not be provided to the injured.  These are also clearly an after-thought.  These factors in any case do not show that the deceased was not in the custody of the Punjab Police prior to his death.  Various ‘new’ assertions contained in the petition filed by the counsel for the State of Punjab on 19.9.2005 as noticed above, are not at all relevant for deciding the issue under our consideration.  We, therefore, rule them out of consideration.

 

In the facts and circumstances of the case, as noticed above, it is logical to hold that the police party had apprehended an injured Paramjit Singh when he was alive and was in a position to disclose all the details about himself to the Punjab Police.  He died after being so apprehended by the Punjab Police “after some time”.  His death, therefore, occurred when he was in actual custody of the Punjab Police.   His case, therefore, clearly falls within the parameters considered by the Commission in its order dated 11.11.2004  and his name was rightly included in the list of 109 ‘custody cases’ attached to that order. The application of the State of Punjab requesting for deletion of his name from the list of 109 persons is accordingly rejected.  We hold that the next of kin of Paramjit Singh are entitled to receive the compensation in terms of the order dated 11.11.2004.

 

The District Magistrate, Amritsar is directed to disburse compensation to the next of kin of deceased Paramjit Singh (mentioned also as Paramdeep Singh in the Response  dated 22.10.2004)  (Sl. No. 67) in terms of the directions contained in the order dated 11.11.2004.  Compliance shall be reported to the Commission within four weeks.

            Both the applications filed by the State of Punjab are accordingly disposed of.

 

 

(A.S. Anand)

Chairperson

 

 

(Shivaraj V. Patil)                   (Y. Bhaskar Rao)                (R.S. Kalha)       

Member                                   Member                           Member

 

 

Reference made by the Supreme Court of India on Writ Petition Nos. 447/95 and 497/95.

CORAM

Dr. Justice A.S. Anand

Justice Shri Y. Bhaskar Rao, Member

Shri R.S. Kalha, Member

 

PRESENT

1. Shri Ashok Agrwaal,Advocate for the petitioners in

W.P. No. 447/95, CIIP

2. Shri R. Venkataramani, Amicus Curiae along with

Shri Ashok Panigrahi, Advocate

3. Shri C.Gonsalves, Sr, Advocate along with

Shri Parminder Singh Grewal, Advocate on behalf of Committee for Coordination on Disappearances in Punjab

4. Shri H.S. Phoolka, Sr. Advocate along with Shri P.S.Grewal

and Shri Siddhartha Shankar Ray, Advocates, AFDP/CCDP

5. Shri Navkiran Singh, Advocate on behalf of

Smt. Paramjit Kaur & 32 applicants

6. Shri Altaf Ahmad, Senior Advocate along with

Shri R.S. Suri, Advocate for the State of Punjab

7. Shri Sudhir Walia, Advocate for Punjab Police Officers

8. Shri H.S. Dhillon, I.G.P. /Commando, Punjab

9. Shri Jagdish Kumar, DIG/Lit, Punjab along with

Shri H.S. Sidhu, AIG, Litigation, Punjab

10. Shri I.G. Sindwani, Under Secretary, Ministry of Home

Affairs, Government of India

11. Shri Dhan Kishore, Public Prosecutor, CBI

ORDER

This matter is under consideration of the Commission on a remit from the Hon’ble Supreme Court of India. The facts and circumstances under which the reference came to be made require a brief notice at the threshold:

Two writ petitions were filed before the Supreme Court of India being W.P. (Crl.) No. 497/95, Paramjit Kaur Vs. State of Punjab and others; and Writ Petition (Crl.) No. 447/95, Committee for Information and Initiative on Punjab Vs. State of Punjab. Serious allegations were made in the writ petitions about large scale cremations resorted to by the Punjab Police of persons allegedly killed in what were alleged as “encounters”. The main thrust of the Writ Petitions was that there were ‘extra-judicial executions’ and hasty and ‘secret cremations’ rendering the State liable for action. The two writ petitions relied upon a Press Note issued on 16th January 1995 by the Human Rights Wing of the Shiromani Akali Dal under the caption “Disappeared” “cremation ground”. The Press Note had alleged that a large number of human bodies had been cremated by the Punjab Police after labelling them as “unidentified”. The Supreme Court was apparently disturbed by the gravity of the allegations and it ordered an inquiry by the CBI into the allegations. Accordingly, the CBI, after completing its enquiry, submitted its fifth and final report to the Supreme Court on 9th December 1996. The Supreme Court after examining the report relating to cremation of dead bodies on December 11, 1996 after examining the final report (5th) of the CBI observed:

“The report indicates that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. Needless to say that the report discloses flagrant violation of human rights on a mass scale”.

and directed:

“We, therefore, direct the CBI to take further action into the matter and register the cases, where necessary, hold investigations and proceed in accordance with law on the basis of the material collected during investigation ……………….. The CBI shall, after every three months, place a status report regarding the investigation in this Court”.

The Hon’ble Supreme Court vide its order dated 12th December 1996, made a reference to this Commission observing:-

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

.

Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be bind0.ing and payable. If any approval or further assistance from this Court is necessary, the same may be sought by the Commission………..”

(emphasis supplied)

That is, how, the matter is before the Commission. On receipt of the reference, Commission issued notice to the parties and the authorities and directed the listing of the case for preliminary hearing on 28th January 1997.

By its proceedings dated 28th January 1997, the Commission desired to know from the parties and their learned counsel their views “as to the scope and ambit of the subject-matter before the Commission” in the proceedings pursuant to the orders of the Supreme Court of India “and the capacity in which the Commission was to function: whether under within the pale of the Protection of Human Rights Act, 1993 (‘Act’ for short) on the premise that the mandate of Supreme Court has had the effect of removing the bar of limitation under section 36(2) of the Act or whether the NHRC is designated sui-generis to perform certain functions and adjudicate certain issues entrusted and referred to it by the Supreme Court”. Learned counsel were asked to “clarify what according to them is the concept and content of the idea of compensation referred for determination by the Commission.”

On 4th August 1997 after hearing Learned Counsel for the parties the Commission framed following preliminary issues with a view to determine the Commission’s jurisdiction under the Hon’ble Supreme Court’s dispensation and the capacity in which it was to function under that dispensation:-

1. Whether the order dated 12th December 1996, is referable to the plenitude Article 32 and has the effect of designating the National Human Rights Commission, not as a mere statutory authority functioning within the strict limits of the provisions of the Act, but as a body sui- generis to perform functions and determine issues entrusted to it by the Supreme Court.

2. If the answer of issue no. 1 is in the affirmative, whether in the discharge of its functions under the said remit, the powers of the Commission are not limited by Section 36(2) and other provisions of the ‘Act’.

3. Whether, the order of the Supreme Court, requires the Commission to adjudicate on the compensation and whether such adjudications are binding on the Governments concerned. Whether such empowerment of the Commission amounts to an investiture of a new jurisdiction on the Commission not already existing under law and whether the order of the Supreme Court amounts to a constitutionally impermissible delegation of its own judicial powers.

4. Whether the Commission could, to aid speedy disposal of the claims for compensation, set-up adjudicatory mechanism under it, subject in each case to its final approval.

The Commission after hearing learned Counsel for the parties and examining their written submissions, decided the preliminary issues. On issues no. 1 and 2, it observed:-

“In the light of the foregoing discussion, the Commission holds that the Commission was designated as a body sui-generis to carry out the mandate of the Supreme Court. As a logical consequence, it requires to be held on Issue No. 2 that the powers of the Commission in carrying – out this mandate are not limited by Section 36(2) or other limiting provisions, if any, under the Act.”

While deciding issue No. 3, the Commission held that the order of remit from the Supreme Court required the Commission to adjudicate on the issue of compensation and that any compensation awarded by the Commission “shall be binding and payable” and negatived the plea that the conferment of such power would amount to “a constitutionally impermissible delegation of its own judicial powers” by the Supreme Court. Issue No. 4 was then decided in the affirmative.

In the course of the aforesaid proceedings dated 4th August 1997, it was also observed:-

“Now a word as to the nature and content of the idea of compensation in such cases. Today, public law remedies are expanded and include award of compensation for violation of Human Rights. A range of decisions of the Supreme Court, more notably in Neelabati Behera vs. State of Orissa 1993 (2) SCC – 746, D.K. Basu vs. State of West Bengal (9) Scale – 298 and PUCL vs. Union of India (1997) 2JT 311 lay down the broad parameters of this emerging concept of damages in public law as part of the constitutional regime. There are also guidelines as to the nature and content of the idea of compensation in public law, its distinctiveness from the private-law remedies and of component elements in its quantification.”

The Commission then went on to say:-

“In India great strides have since been made in the field of evolving legal standards for remedial, reparatory, punitive and exemplary damages for violation of Human Rights. In a recent judgment of far reaching significance that will shape the future in D.K. Basu Vs. State of West Bengal, the Supreme Court said:

“…… Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that 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 of 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.”

and added:

“The Supreme Court has laid down that principles for award of compensation by the courts as a part of the public law regime which will supplement the inadequacies of the statutory law. There is, thus, an enforceable right to compensation recognized in the public regime in India.”

On 4th September 1997 the Union of India moved an application before the Commission for stay of further proceedings, for a period of three months, in order to enable the Union of India to approach the Supreme Court against the order of the Commission dated 4th August 1997. The proceedings in the Commission were accordingly adjourned.

The Supreme Court on September 10, 1998, disposed of the Petition filed by the Union of India questioning the correctness of the order of the Commission dated 4th August 1997. While declining to interfere with the order of the Commission it observed: -

“The findings on all the issues are explicit and clear and truly reflect the intention of this Court as set out in its order dated 12th December 1996, which was passed in the aforesaid two Writ Petitions under Article 32 of the Constitution.

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.”

The Court explained:

“In the present case this Court in exercise of the jurisdiction under Article 32 of the Constitution entrusted the National Human Rights Commission to deal with certain matters in the manner indicated in the course of its order. All authorities in the country are bound by the directions of this Court and have to act in aid of this Court. National Human Rights Commission is no exception. The Commission would function pursuant to the directions issued by this Court and not under the Act under which it is constituted. In deciding the matters referred by this Court, National Human Rights Commission is given a free hand and is not circumscribed by any conditions. Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature not covered by enactment or law, and thus acts sui generis.”

The Court then clarified :-

“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 22.7.1996, 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.

The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, 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. 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 Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter.”

(Emphasis ours)

Even after the above order of the Supreme Court and the observations made therein the matter could not make any progress because a controversy was raised by learned counsel for the petitioners as to the “scope” of enquiry before the Commission.

On 16th October, 1998, the Commission heard arguments from Learned Counsel of the parties with regard to what they perceived as the proper scope of inquiry which the Commission was required to under take under the remit of the Supreme Court of India. The Commission after detailed discussion held:-

“For the reasons stated above, the Commission considers it fair to say that the scope of the inquiry under the Supreme Court’s direction, is limited only to those illegal killings / disappearances that culminated in the cremation of 2097 bodies (585 bodies fully identified, 274 bodies partially identified and 1238 bodies unidentified) in the crematoria located at Durgyana Mandir, Patti Municipal Committee Crematorium and Tarn Taran Crematorium located in the Police districts of Amritsar, Majitha and Tarn Taran, which were also the subject matter of inquiry by the CBI in pursuance of the Order of Supreme Court dated 15th November 1995. The contention of the Petitioners to the contrary that the Commission should undertake an investigation of all the alleged Police killings in the State of Punjab, apart from being extremely expansive in nature, does not seem to square or be reconcilable with the express terms of the Court’s remit”.

(Emphasis supplied)

Subsequent to the above order of the Commission, some proceedings took place before it on various dates for settling the modalities in regard to the issue of a public notice and processing of the claims. It transpires from the record that the issue of scope of enquiry which the Commission was to undertake under the remit of the Supreme Court’s order dated 12th December 1996 was once again raised before the Commission. Learned counsel for the petitioner argued that the Commission was required to inquire into all incidents of what are referred to as “extra judicial eliminations” or “involuntary disappearances” “fake encounters” etc. while the contention of the State of Punjab and the Union of India, on the other hand was, that the enquiry was restricted to 2097 cases in the three districts as opined by the Commission on October, 1998. After hearing learned Counsel for the parties, the Commission on 13th January 1999 held that the scope of the Commission’s jurisdiction was confined to matters relating to the alleged ‘unlawful cremation’ of the 2097 bodies in the police districts of Amritsar, Tarn Taran and Majitha only and rejected the plea raised by Learned Counsel for the petitioners.

A “public notice” inviting claims / applications from the legal heirs/ defendants of the deceased claiming that the deceased was illegally cremated by the Punjab Police was thereafter issued. 88 claim petitions were received in response to the said notice. The case was adjourned to consider the claims etc. however, before the scrutiny could take place Learned Counsel for the Petitioners once again pleaded before the Commission to review its order or seek a clarification from the Hon’ble Supreme Court about the true scope of enquiry by it. On March 24, 1999 the plea was once again rejected by the Commission.

An application was filed by learned counsel for the petitioners for “disclosure and inspection” of the status reports filed by the CBI in the Supreme Court, which were being forwarded to the Commission under sealed covers. The petition was disposed of by the Commission on 5th August, 1999. Following observations from that order need a notice at this stage :-

“In the meanwhile, as directed in the Supreme Court’s order, the C.B.I. is conducting investigations in respect of a related area – as to the criminal liability, if any, of public authorities for the deaths and the cremations. During the course of investigation, again as directed by the Supreme Court, the CBI has been forwarding status reports from time to time to the Supreme Court which are, in turn, forwarded by the registry of the Supreme Court to the Commission. They are kept in sealed covers. The present application has come to be filed by the petitioners for disclosure and inspection of those status reports from the CBI.

(Emphasis ours)

The question, therefore, is whether it is proper and expedient at this stage to permit the petitioners to inspect the Status Reports of the CBI by opening the sealed covers and giving them access to information contained in them. There are two aspects of this question. The first is the general principle of the need for fairness and openness in administration and how this great principle is served by the recognition of the Right to Know. The second is the more mundane question of the law of criminal procedure treats and endorses confidentiality of information particularly during the investigation into crimes. Commission may take-up the second aspect first.”

After referring to various provisions of Code of Criminal Procedure and some decided cases on the subject the Commission declined the prayer of learned Counsel for the petitioners and opined:

“It would thus be seen that it is the duty of the Commission to balance the competing interests of the public service and the access to information, by assessing the effects of disclosure whether it is would advance the cause of justice or impede the progress of investigation. As stated earlier, it is not the contention of the Counsel for the C.B.I. that the contents in the sealed cover of the status reports are not to be looked into by the Commission. But their objection is that the access to the contents of the documents to the claimants / complainants / Public Police officials would hamper smooth investigation.

It would, therefore, be seen that the Code prescribes, under Section 173, the procedure to supply, along with the charge-sheet/ Police report, all documents or relevant extracts thereof, on which the prosecution proposes to rely, to the accused person, other than those already sent to the Magistrate during investigation. The status reports at the present stage indicate the progress of investigation conducted by the CBI. In view of the legal position and the circumstance that in many cases investigation is yet to be completed, the Commission is of the view that it should decline to throw open the status-reports of the CBI for inspection by the petitioners.”

[emphasis supplied]

A perusal of the record of the case reveals that on 15th February 2001, a plea was once again raised by Shri Ashok Agrwaal, Learned counsel for the petitioners to make a reference to the Supreme Court seeking ‘clarification about the scope of enquiry remitted to the Commission’. (Shri Justice J.S. Verma had by then taken over as Chairperson of NHRC on the expiry of the term of Shri Justice M.N. Venkatachaliah). The Commission however, did not consider it necessary to seek “any such clarification” and observed :-

“The scope of this enquiry relates to 2097 cremations according to the CBI report out of which 585 were identified, 274 partially identified and the remaining 1238 unidentified. In response to the public notice issued by the Commission, only 88 claims have been filed. It is obvious that as far as practicable efforts must be made to enquire into all or as many out of 2097 cremations as possible and for that purpose the necessary particulars would be required. In respect of 585 cases which according to the CBI report are identified, the particulars available in the CBI report should furnish the basis for proceeding with the enquiry irrespective of the question whether any claim has been filed in respect of them or not. In respect of the 274 partially identified, the available particulars have to be utilized for making full identification and obtaining the requisite particulars to enable the inquiry to proceed. In respect of the remaining 1238 unidentified cremations, efforts should be made to obtain the necessary particulars in every possible manner so that even in respect of them an enquiry, if possible, can be held.”

Vide its proceedings dated 3rd May 2001, the Commission took on record the three lists marked as List ‘A’ (identified dead bodies), List ‘B’ (partially identified dead bodies) and List ‘C’ (unidentified dead bodies). List ‘A’ contained a total number of 582, List ‘B’ – 278 and List ‘C’ – 1237 items.

The proceedings of the Commission dated 8th May, 2003, state:

“Vide proceedings of the Commission dated 16 September, 2002, while granting time to the State of Punjab to inspect documents in possession of the CBI, the Commission had fixed a time schedule for examination of those documents and directed the affidavits to be filed by the State of Punjab by 31st October, 2002. Shri R.S. Suri, learned counsel appearing for the State of Punjab submits that the inspection of documents could not be completed within the time specified by the Commission because of the huge volume of records and that the inspection could be completed only by 31st January, 2003. He also submitted that the State of Punjab has already filed affidavits of 216 officers in respect of the bodies which stood identified. It is submitted that since the records have to be translated from vernacular, they would require more time to file affidavits regarding remaining 366 identified bodies. We grant him time to do the needful on or before 21st July, 2003 so that the matte can be taken up on 24 July, 2003 at 3 P.M.”

On 2nd September 2003, the Commission granted some more time to the parties to verify the details given in the three lists filed by the CBI. Learned counsel for the parties agreed that they would file a tabulated chart in respect of the persons mentioned in the three lists and the case was adjourned to 20th October, 2003. Tabulated charts were filed in the meanwhile.

On 20th October 2003, Learned Counsel for the petitioners pointed out that the State had admitted that some of the deceased were in the custody of the police before their death and that it would be useful to deal with their cases. The Commission, in its proceedings of October 20, 2003 observed:-

“It has been stated before us that there are a number of cases in which the State itself has admitted that the deceased persons had been taken into custody. It would be helpful to have a chart of such cases in which there is admission of the State of taking the deceased persons into custody. Shri Agrwall submits that he will submit a list of such cases from the material already furnished before this Commission to Shri Suri before 25th October 2003. Shri Suri submits that he would submit comments, if any, on that list by 28th October 2003.”

In its proceedings dated 13th November 2003, the Commission noticed that Shri Agarwal had submitted a list of deceased persons, from the material already furnished before the Commission, who were according to him “admittedly” in the custody of the police before their death and cremation. Shri R.S. Suri submitted his comments on the list filed by learned counsel for the petitioners. It was noticed that the issues which were framed on 4th February 2002, centered around consideration of 582 fully identified bodies which were cremated out of the total of 2097 bodies only and not qua the alleged illegal cremation of all the 2097 bodies. Learned Counsel for the parties submitted before the Commission that for proper disposal of the matter before the Commission, the issues framed on 4.2.2002 required to be reframed. The Commission found merit in their submission Learned counsel undertook to file draft issues for assistance of the Commission.

While the matter rested thus, on March 17, 2004, the Commission in the Course of its proceedings observed:

“It appears to us that for proper adjudication of the rights and for effective determination of compensation etc. in respect of the cases of identified and partially identified bodies, it is desirable that the Commission once again issues a public notice inviting the ‘NOK’ of all such persons whose names figure in these lists to submit their claims, if any, or make other submissions in person or through counsel. Even NOK of persons, other than those mentioned in Lists ‘A’ & ‘B’, who also consider that they have some claims to prefer in respect of any of their ‘unidentified’ deceased relations, may also likewise submit their claims to the Commission in person or through their counsel. The claims shall be accompanied by affidavits of the claimants indicating their relationship with the deceased and also disclosing the names and addresses of the legal heirs of the deceased.

Those 88 claimants who had responded to the Commission’s earlier notice shall also be served with personal notices regarding the next date of hearing. They shall also be called upon to file affidavits in support of their claims disclosing their exact relationship with the deceased and also the names and addresses of other legal heirs of the deceased so that their claims are also considered properly.”

Public notices were accordingly prepared and published in different newspapers on 19.7.2004. The public notice required filing of claims by individual claimants within 8 weeks from the date of the publication of the notice. In response to the public notice, 1536 claim petitions were received in the Commission by due date duly supported by affidavits in support of the claims. 55 claim petitions supported by affidavits were received from the office of Shri Ashok Agarwal on 20.9.2004 after the due date, but they were also entertained waving the delay in the submission of the same.

On 23.9.2004, when the Commission took up for consideration the responses received from the NOK of some of the claimants, it was observed that the total number of claim petitions received in the Commission were 1591. Since, most of the petitions were filed in Punjabi language, the Registrar (Law) was directed to have them translated into English for assistance of the Commission. Learned Counsel appearing for the parties also volunteered to assist the Commission by furnishing English translations of the claim petitions. Counsel for the petitioners were also permitted to file other claim petitions, before the next date with an advance copy to the State of Punjab, as it was submitted by them that some more claim petitions were in the pipeline. Case was adjourned to November 5, 2004.

Learned counsel for the parties have agreed that as a first step, the Commission may consider the cases of such of the deceased persons who were admittedly in the custody of the police prior to their death and were cremated in police districts of Amritsar, Majitha and Tarn Taran, for the purpose of awarding ‘compensation’ to their next of kin. Agreeing with the submissions of learned counsel for the parties, the Commission has heard arguments on the following questions:

(a) Whether any of the deceased who were cremated in police districts of Amritsar, Majitha, Tarn Taran by the police were admittedly in the custody of the Punjab police prior to the time of their death and cremation?

(b) Whether the State of Punjab is not liable to pay compensation to the next of kin of those deceased, who were admittedly in the custody of the police prior to their death and cremation?

If the answer to (b) is in the affirmative, then

(c) What should be the quantum of compensation payable to the next of kin of those deceased?

Shri Altaf Ahmed, learned Senior Counsel assisted by Shri R.S. Suri, appearing for the State of Punjab submitted that though the State does not dispute that 99 persons, as mentioned in the affidavits filed by the State of Punjab, were in the custody of the police prior to their death but it was asserted that none of the officials of the State could be held directly responsible for causing the death of any of those deceased persons. He, therefore, submitted that strictosenso the judgment of the Supreme Court in “Nilabati Behera Vs. State of Orissa and others” (1993 2 SCC 746) would not be applicable to the facts and circumstances of the case since the police was performing their duty of protecting the sovereignty and security of the nation and was responding to a situation which was of an extraordinary nature.

He argued that during the relevant period, the State was facing terrorist activities and the police was obliged to act in defence of the State and while performing such duties if a citizen lost his life, not attributable to any direct action of the State officials, the State should not be blamed for it. He pointed out that during that period, the State itself had lost as many as 10,784 police and para military personnel and 300 family members of such police and para military forces besides as many as 11,694 civilians as a result of terrorist related violence. Shri Altaf Ahmed went on to submit that the Commission should take into account the extraordinary situation prevailing in the State while considering the question of grant of any monetary relief to the next of the kin of the deceased. According to Shri Altaf Ahmed, in case the Commission decides to order payment of money to the NOK of the deceased, the same should be in the nature of ex-gratia payment and not by way of damages or compensation and should be without prejudice to the rights of the State and its officials in any civil, departmental or criminal actions. He added that while fixing the quantum of the amount payable to the next of kin of the deceased, who were admittedly in the custody of the police, prior to their death, all these factors be kept in view. Learned counsel asserted that the terrorists who were fighting against the law did not deserve to be treated at par in the matter of award of monetary relief, with what would be payable to an ordinary citizen who lost his life while in police custody due to some action of the police. He, however, fairly submitted that though the State was engaged in a war like situation, he was not even remotely pleading sovereign immunity but pleaded that the Commission, while dealing with the case, at this stage, should also clarify that since CBI investigation as directed by the Supreme Court, was already in progress, its order of granting monetary relief to the next of kin of the deceased was without prejudice to the rights of the parties and that the same should not be construed as any expression of opinion on the culpability of any of the State functionaries.

Learned senior counsel for the petitioners, Shri Gonsalvis submitted that State could not be permitted to take the life of a citizen in its custody as it was obliged to keep the citizens in its custody safe from any harm and if the state failed to do so, it was liable to pay compensation to the next of kin of the deceased, who prior to their death, were admittedly in the custody of the police. The arguments of Shri Ashok Agrwaal, Advocate, oral as well as written were also on the same tenor. Shri Phoolka and Shri Nav Kiran Singh, Advocates, also argued on the same platitude and asserted that the State was vicariously liable where a citizen looses his life while in custody of its officials. They also submitted that the amount of compensation should be fair and reasonable. It was pointed out that the Supreme Court had in certain cases awarded as much as ten lakh of rupees while the High Court had awarded amounts ranging from 3.5 lakhs to 5 lakhs under somewhat similar circumstances. It was pointed out that the State has also been making upward revisions of the amount of compensation payable to NOK of its employees, who died in terrorist related violence.

Shri Venkatramani, Learned Counsel assisting the Commission, submitted that in any civilized country, the power to detain a person in custody, where the necessity for the same is felt, only can be conceded, but that power cannot be extended to the taking away of the life of such a person, while the person is in its custody. Learned counsel submitted that no such right can ever be conceded to the State by which it can resort to “extra judicial killing” even of hardened criminals whether by its act or omission. He went on to say that for loss of life there is an obligation of the State to compensate but agreed with Shri Altaf Ahmad that any award made by the Commission in favour of the NOK of the deceased, must be without prejudice to the rights of the parties and the same should not be construed as any expression of opinion on the culpability or otherwise of anyone.

Before we consider the submissions of learned counsel for the parties in their correct perspective, it needs to be pointed out that human rights of citizens are non-negotiable and non-derrogable. No compromise with violations of the same is permissible in any civilized society. These rights recognize the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economical level of living. While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence. No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.

It needs to be acknowledged that there can be no alibis and justification for terrorism and nothing justifies terrorism and that the menace of terrorism has to be curbed. However, the Commission is firmly of the view that whereas terrorism must be countered effectively and strongly, no democratic society can be permitted to chill civil liberties of the citizens while taking measures against the terrorists. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law. It is during anxious times, like the decade in Punjab under our consideration, when care has to be taken that state does not take recourse to bend the rule of law.

In this connection, it would be useful to refer to the opinion of the Supreme Court of India in D.K. Basu Vs. State of West Bengal 1997(1) SCC 416:

Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to “terrorism”. That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human right except in the manner permitted by law.

According to the petitioners 146 number of persons were in the custody of the police prior to their deaths and cremation, while according to the State of Punjab 99 persons only are admitted to have been in the custody of the police prior to their death. Our independent analysis of the charts filed by the petitioners and the affidavits filed by the State show that atleast 109 persons were in the custody of the police prior to their death and cremation. Even if it be assumed for the sake of arguments, though not conceding, that all or some of them were ‘terrorists’, they were still required to be dealt with in accordance with law and their human rights had to be protected by the police while those persons were in its custody. In D.K. Basu’s case (supra) it was observed:

“That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human right except in the manner permitted by law.

Expressing its anguish in cases of “deaths in custody”, in D.K. Basu’s case it was said:

“Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. ……….. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrest him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law placing such reasonable restrictions as are permitted by law.”

It would also be useful to recall the following observations of the Supreme Court in Nilabati Behera Vs. State of Orissa, [1993 (2) SCC 746]:

“It is axiomatic that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of this life except according to the procedure established by law.”

[Emphasis supplied]

That State would, therefore, be liable where it fails to keep the prisoner in its custody ‘safe’ as its duty of care is strict. The responsibility on the police and authorities to ensure that the right to life of a citizen is not taken away, while the citizen is in its custody, except in accordance with law and that proper care to safeguard the lives of such persons against the risk of avoidable harm, even self harm, while they are in their custody cannot be disputed. This view is fortified by judgements of other jurisdictions also.

We may here usefully refer to the opinion of the House of Lords in R (on the application of Amin) Vs. Secretary of State for the Home Department, 2003 (4) All E.R. page 1264. Lord Bingham of Cornhill in his opinion, with which Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead and Lord Hutton concurred, said:

“A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under Article 1 and 2 of the convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. As Anand J. succinctly put in Nilabati Behera V. State of Orissa (1992) 2 SCR 581 at 607 : ‘There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life.’ Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self harm (See Reeves v. Comr. Of Police of Metropolis [1993] 3 All ER 897, [2000] 1 AC 360). Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.”

[Emphasis ours]

On the basis of the settled law, we, therefore, unhesitantly hold that human rights of 109 persons, who were admittedly in the custody of the police immediately prior to their death, stood invaded and infringed when they lost their lives, while in custody of the police thereby rendering the state vicariously liable. There was a very great responsibility on the part of the police and other authorities to take reasonable care so that citizens in their custody were ‘safe’ and not deprived of their right to life as in such cases “the duty of care on the part of the State is strict and admits of no exception”. The State of Punjab is, therefore, accountable and vicariously responsible for the infringement of the indefeasible right to life of those 109 deceased persons as it failed to “safeguard their lives and persons against the risk of avoidable harm”. The first question is answered accordingly.

The next question, which now requires our consideration is regarding the nature of relief to be granted to the heirs of the deceased for the infraction or invasion of the right to life of the deceased guaranteed under Article 21 of the Constitution of India. It is not our concern in these proceedings to determine as to which police officer or officers were responsible for violation of the right to life of those persons, as that is a matter to be decided by the competent court, after the CBI concludes its inquiry / investigation, as per the directions of the Supreme Court, and files chargesheets wherever so required and our order should be read in that context. While considering the nature of relief to be granted to the next of kin of the deceased we are of the opinion that in the facts and circumstances of case monetary amends need to be made by the State by way of redressal for the infringement of the right to life of the deceased. This issue came up for consideration of the Supreme Court in Nilabati Behera Case (supra) wherein it was held:

“Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.”

A similar approach of redressing wrongs by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by Courts in other jurisdictions also.

The informative and educative observation of O’Dalaigh, CJ in State (At the Prosecution of Quinn) vs. Ryan [1965 IR 70] (IR at p.122) deserve a special notice. The Learned Chief Justice said:

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizens that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodian of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them and that the court’s power in this regard are as ample as the defence of the Constitution requires.” (Emphasis supplied)

The Court of Appeal in New Zealand in Simpson v. Attorney General [1994 NZLR 667] held as under:

“Enjoyment of the basic human rights are the entitlement of every citizen, and their protection an obligation of every civilized State. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared.”

The Court of Appeal then relied upon and referred to the law laid down in Nilabati Behera v. State and opined:

“Another valuable authority comes from India, where the Constitution empowers the Supreme Court to enforce rights guaranteed under it. In Nilabati Behera v. State of Orissa, the Supreme Court awarded damages against the State to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to ‘forge new tools’, of which compensation was an appropriate one where that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. These observations of Anand, J. (at p.2912 of Cri LJ) may be noted: (SCC p.768, paras 33 and 34).

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. … The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights.”

The Supreme Court of India in D.K. Basu’s case (supra), the dealing with the issue observed:

“The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim—civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.”

The court further opined:

The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”

The concluding paragraph of the judgment in D.K. Basu’s case is educative it reads:

“To sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed and 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 from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The object is to apply balm to the wounds and not to punish the transgressor for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf.” (Emphasis Supplied).

It, therefore, follows that this Commission would be totally justified and, in the facts and circumstances of the case, duty bound and obliged to redress the grievances of the next of kin of the deceased by award of monetary compensation for infringement of the indefeasible right to life of deceased and apply balm to their wounds. This claim, as has been noticed in an earlier part of the order is based on the principle of strict liability. The award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is an appropriate remedy available in public law jurisdiction for repairing the public wrong. The NOK of the deceased, therefore, must receive the amount of compensation from the State of Punjab which is vicariously liable and cannot be absolved of ‘its responsibility of safe keeping of the citizen in its custody. We accordingly hold the State of Punjab liable to make monetary amends for the infringement of the right to life of the deceased, who were in the custody of its police prior to their death by paying compensation to NOK of the deceased. The second question is answered accordingly.

The next question for our consideration is with regard to the quantum of compensation to be paid to the next of kin of the deceased. Learned counsel for the petitioners, as already noticed, have referred to various orders of the courts pointing out that compensation in some of the cases in similar circumstances had been granted ranging between 3.5 lakhs to 10 lakhs while Shri Altaf Ahmed, Senior Advocate and Shri R.S. Suri, learned counsel appearing for the State of Punjab have argued that the monetary relief to be granted to the next of kin of the deceased should be reasonable and not excessive.

Indeed, the quantum of compensation depends upon the circumstance of each case and there is no rule of thumb which can be applied to all cases nor even a universally applicable formula. In our opinion the compensation has to be fair and reasonable. It should neither be punitive nor illusory. After giving our careful consideration to the submissions made before us by learned counsel for the parties, it appears to us that it would be reasonable to grant monetary relief to the extent of Rupees Two Lakh Fifty thousand (Rs. 2,50,000/-) to the next of kin of each of the following deceased persons.

POLICE DISTRICT-- AMRITSAR

 

Sr.No.

CBI No.

Name of deceased, parentage and address

1.

53/1

Tejinder Singh s/o Roor Singh r/o Tharu, PS Tarn Taran City, Distt. Amritsar

2.

88/6

Nishan Singh s/o Bahal Singh r/o Ranian, PS Lopoke, Ajnala Distt., Amritsar

3.

121/7

Parminder Singh @ Balour S/o Amrik Singh Jat r/o Kalia Sakatra, P.S. Khemkaran, Amritsar

4.

122/8

Harinder Singh @ Shaheed s/o Pyara Singh r/o Kohali, PS Lopoke, Ajnala Distt., Amritsar

5.

160/11

Dalbir Singh s/o Karnail Singh r/o Bal Saran, PS Beas, Phatak Dhanpai Road, PS Islamabad, Amritsar

6.

161/12

Rajinder Singh s/o Preetam Singh r/o Gali No. 13, Gurunanak Pura, PS Islamabad, Distt. Amritsar

7.

162/13

Vijay Kumar s/o Joginder Pal r/o Near Jwala Flour Mills, PS Islamabad, Amritsar.

8.

163/14

Harish Chander s/o Inderjit r/o Nawan Kot, PS Islamabad

9.

167/16

Arjinder Pal Singh @ Toni @ Nihal Singh s/o Chain Singh Jat r/o Kasel, Mane KI Patti, Sarai Amanat Khan, The TTN, P S Sadar, Distt. Amritsar

10.

201/25

Daljit Singh @ Billa s/o Sucha Singh r/o Mohalla Bog, Phagwara

11.

202/25

Gurinder Singh @ Jinda s/o Bhakshish Singh Jat s/o Basarke Gillan, PS Chheharta, Distt. Amritsar

12.

218/27

Kashmir Singh @ Laddu s/o Kundan Singh r/o Nehru Colony, Amritsar

13.

220/28

Jaspal Singh s/o Preetam Singh r/o Mustafabad, Batala Road, PS Sadar, Distt. Amritsar

14.

263/33

Avtar Singh s/o Dalip Singh r/o Kot Khalsa, PS Sadar, Amritsar

15.

266/34

Amrik Singh @ Bau @ Fakkar s/o Jagir Singh r/o Kirtangarh, Thandey, PS Sadar, Distt. Amritsar

16.

273/36

Harjinder Singh @ Kala s/o Sadhu Singh r/o Amritsar, Shahid Udham Singh Nagar, Gali No. 2, Distt. Amritsar

17.

292/44

Sucha Singh @ Charan s/o Mohinder Singh r/o Chhina Subjpur PS Raja Sansi, Ajnala Distt. Amritsar

18.

313/50

Udham Singh s/o Gajjan Singh r/o Thathgarh, PS Jhabal, Distt. Amritsar

19.

350/62

Randhir Singh @ Dhir Singh s/o Chanan Singh r/o Pairewal, PO & PS Ramdas, Ajnala Distt. Amritsar

20.

352/63

Mohinder Singh s/o Mohan Singh r/o Sultanwind

21.

363/67

Piara Singh s/o Shingara Singh Jat r/o Sultanwind, Amritsar

22.

379/69

Jhujar Singh @ Neetu s/o Heera Singh r/o Gali No. 1, Anterzami Colony, PS A-Division, Distt. Amritsar

23.

198/32

Swaran Singh S/o Lal Singh

R/o Talwandi, Jalle Khan, PS Zira, Amritsar

24.

199/33

Daljit Singh s/o Saudagar Singh

R/o V Chhapa, PS Chabal, Amritsar.

25.

219/37

Inderjit Singh S/o Harbhajan Singh Jat

R/o Shangana, PS Sadar, Amritsar







POLICE DISTRICT--MAJITHA

26.

93/4

Jaswinder Singh , S/o Darshan Singh Arora, R/o Shaheed Udham Singh Nagar

27.

95/2

Randhir Singh @ Dhira, S/o Mann Singh Jat R/o Munda Pind, PS Jandiala.

28.

100/6

Jaswant Singh ,S/o Chanan Singh,R/o Sharifpura, District Amritsar

29.

124/13

Sukhdev Singh @ Sukha S/o Pyara Singh,R/o Tarsikka, PS Majitha.

30.

233/34

Raghbir Singh @ Bira S/o Pratap Singh,R/o Runseeke , PS & Tehsil Derra Baba Nanak, Distt. Gurdaspur, Punjab.

31.

234/25

Nirmal Singh @ Bittu S/o Mohinder Singh, R/o Runseeke, Ramgarian PS & Tehsil Derra Baba Nanak, Distt. Gurdaspur, Punjab.

32.

239/26

Satnam Singh, S/o Ajit Singh Jat, R/o Bhagupur, PS Patti, Police District Tarn Taran, Distt. Amritsar, Punjab.

33.

253/30

Kartar Singh @ Fauji, S/o Buta Singh Mazbi, R/o Adaliwal, PS Raja Sansi, Tehsil Ajnala, Distt. Amritsar, Punjab.

34.

255/31

Mangal Singh @ Bittu, S/o Kartar Singh caste Mazbi R/o Adaliwal, PS Raja Sansi, Tehsil Ajnala, Distt. Amritsar, Punjab.

35.

262/32

Gurmail Singh @ Gullu @ Pappu @ Udhna Sup S/o Naranjan Singh, R/o Village Cheema Bath, PS Beas, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

36.

263/33

Prem Singh @ Prema S/o Mohinder Singh, R/o Village Cheema Bath, PS Beas, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

37.

270/36

Lakhwinder Singh, S/o Balwant Singh, R/o Sathiali PS Kahnuwan District Gurdaspur

38.

272/37

Narinder Singh @ Ninda, S/o Rattan Singh, R/o Bham, PS Shri Har Gobindpur, Batala, Distt. Gurdaspur, Punjab.

39.

274/39

Baljit Singh @ Chhota , S/o Gurdit Singh, R/o Nangli , PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

40.

284/42

Swaran Singh @ Swarana, S/o Dhian Singh Jat , R/o Mandranwala, Po & PS Ramdas, Tehsil Ajnala, Distt. Amritsar, Punjab.

41.

298/44

Randhir Singh @ Dhira s/o Chanan Singh Jat R/o Natibpura, Model Town, Division No. VI, Jalandhar, Punjab.

42.

311/50

Gurinder Singh @ Hira , S/o Major Singh Jat, R/o Nagoke, PS Verowal, Tehsil Tarn Taran, Distt. Amritsar, Punjab.

43.

316/51

Narinder Singh, S/o Manga Singh Jat , R/o Jalalpura, PS Majitha, Tehsil & Distt. Amritsar, Punjab.

44.

322/52

Mangal Singh @ Manga, S/o Sohan Singh Jat , R/o Village of Arjun Manga, PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

45.

327/54

Paramjit Singh, S/o Avtar Singh, R/o Udhowali

46.

332/55

Surta Singh, S/o Malook Singh Jat, R/o Harar Kalan, PO,PS & Tehsil Ajnala, Distt. Amritsar, Punjab.

47.

343/56

Kewal Singh, S/o Hazara Singh, R/o Village Kiampur

48.

344/57

Paramjit Singh @ Kala, Ranjha, S/o Hazara Singh, R/o Chhina Shahbazpur.

49.

348/58

Balwant Rai @ Gulu @ Gurdit Singh, S/o Harichand Arora, R/o Khilchian

50.

349/59

Balkar Singh, S/o Mohinder Singh, Village Jabhowal District Amritsar.


51.

350/60

Gurjit Singh @ Phumman Singh, S/o Bhajan Singh, R/o Chajjalwadi, PS Jandiala, Tehsil Baba Bakala, Distt. Amritsar, Punjab.
52. 371/68 Malkiat Singh @ Meeta, S/o Gulzar Singh Jat, R/o Rana Kala, PO Jabbowal, PS Jandiala Guru, Tehsil & Distt. Amritsar, Punjab.
53. 372/69 Gurmukh Singh @ Gorkhi , S/o Veer Singh, R/o Jani ki Patti, Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.
54. 375/70 Trilochan Singh, S/o Joginder Singh, R/o Doojowal, PS Ramdas, Tehsil Ajnala, Distt. Amritsar, Punjab.
     







55.
378/73
Balwinder Singh S/o Ajit Singh Jat, R/o Village Nangli Nusehra, PS Sadar, Distt. Amritsar, Punjab.

56.
392/78
Angrej Singh, S/o Charan Singh Jat, R/o Jalal Usma, PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

57.
395/80
Gurdev Singh @ Bhutto S/o Harbans Singh, R/o Pakhoke, PS Tarn Taran (Sadar), Tehsil TarnTaran, Distt. Amritsar, Punjab.

58.
400/81
Lakhwinder Singh @ Lakha, S/o Surjit Singh Jat, R/o Chak Kamal Khan, PO Sorian, PS Ajnala, Tehsil & Distt. Amritsar, Punjab.

59.
401/82
Harjit Singh @ Har singh Butter, S/o Kashmir Singh, R/o Buutar Kalan, Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

60.
415/89
Jagtar Singh @ Jagga, S/o Dilip Singh, R/o Kairon, PS Patti City, Tehsil Patti, Distt. Amritsar, Punjab.

61.
416/90
Sarwan Singh, S/o Mohinder Singh, R/o Village Makhi Margindpura, PS Bhikhiwind, Tehsil Patti, Distt. Amritsar, Punjab.

62.
417/91
Satnam Singh, S/o Jarnail Singh, R/o Kairon, PS Patti, Distt. Amritsar, Punjab.

63.
436/100
Sukhwinder Singh, S/o Dalip Singh Jat, R/o Manawala, PS Lopoke, Tehsil Ajnala, Distt. Amritsar, Punjab.

64.
437/101
Sucha Singh, S/o Bhagwant Singh, R/o Madiawala, PO Bhilowal, PS Lopoke, Tehsil Ajnala, Distt. Amrisar, Punjab.

65.
447/109
Sawinder Singh @ Shindu, S/o Shiv Singh, R/o Manga Sarai, PO Dhadde, PS Kathu Nangal, Distt. Amritsar, Punjab.

66.
449/111
Tarlochan Singh @ Husna, S/o Kishan Singh Jat, R/o Saidolehal, PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

67.
450/112
Paramjit Singh, S/o Jaswant Singh Jat, R/o Village Vachnova, PS Jhander Singh, Tehsil Ajnala, Distt. Amritsar, Punjab.

68.
479/127
Baldev Singh @ Deva @ Fauji, S/o Buta Singh, R/o Basarke Baini, PS Chheharta, Tehsil & Distt. Amritsar, Punjab.

69.
480/128
Dalbir Singh @ Kala, S/o Kulwant Singh, R/o Pallah, PO Gagar Bhana, PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

70.
481/129
Balwinder Singh, S/o Najar Singh.,R/o Pallah, PO Gagar Bhana, PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

71.
482/130
Shaib Singh, S/o Kahan Singh, R/o Chung, PO & PS Mehta, Tehsil Baba Bakala, Distt. Amritsar, Punjab.



72.
525/145
Tarsem Singh @ Sema, S/o Meju Kaka Sansi , R/o Bhourwala, PO Mohan Bhandarian, PS Ramdas, Tehsil Ajnala, Distt. Amritsar, Punjab.

73.
526/146
Anokh Singh, S/o Banta Singh, R/o Bindi Aulakh, PS Lopoke, Tehsil, Ajnala, Distt. Amritsar, Punjab.

74.
608/170
Lakhwinder Singh @ Lakha, S/o Harbhajan Singh Ramgaria, R/o Chowgan PS Mattewal Chogawan, Tehsil Baba Bakala, Distt. Amritsar, Punjab.

75.
611/171
Rupinder Singh @ Fauji, S/o Harbans Singh, R/o Borewal kang, PS Majhitha.

76.
207/25
Shri Kashmir Singh S/o Gulzar Singh Jat

R/oV Jhander, Tehsil Ajnala, Amritsar.

77.
330/41
Kulwinder Singh S/o Bawa Singh Jat

R/o Vill Dhardeo, PS Mehta, Majitha.

78.
396/58
Manjinder Singh @ Jinda S/o Thakur Singh

R/o Village Pakhoke, Majitha.

79.
582/92
Sukhdev Singh @ Billa S/o Kishan Singh

R/o Village Harian, PS K Nangal



POLICE DISTRICT --TARN TARAN

80.

37/99

Sarbjeet Singh S/o Tirath Singh Jat, r/o Nagoke, PS Verowal, Police District Tarn Taran, Amritsar.

81.

38/100

Gurbir Singh @ Raju S/o Joginder Singh Jat r/o Jhabal, PS Jhabal, Police District Tarn Taran, Amritsar

82.

48/121

Kuldip Singh @ Ghuggi S/o Kartar Singh Mehra r/o Chola Sahib, PS Sarhali, Police District Tarn Taran, Amritsar.

83.

49/122

Jassa Singh S/o Dharam Singh Majbi r/o Chola Sahib, PS Sarhali, Police District Tarn Taran, Amritsar.

84.

54/135

Darshan Singh S/o Dayal Singh Jat, r/o Mehmodpura, PS Valtoha, Police District, Tarn Taran.

85.

56/147

Balbir Singh @ Pappu S/o Mukhtiar Singh Jat, r/o Jella Roda, PS Mallanwala, District Ferozpur, Punjab. (However in CBI list, his name is mentioned as Balwinder Singh S/o Mukhtiar Singh)

86.

57/148

Dilbagh Singh @ Baba S/o Ram Singh Jat, r/o Koharka, PS Patti, Police District, Tarn Taran.

87.

72/183

Kashmir Singh S/o Dharam Singh Jat, r/o Jhander, PS Sadar Tarn Taran, Police District Tarn Taran, Amritsar.

88.

161/628

Inderjeet Singh @ Hardeep Singh @ Deepa S/o Karam Singh Jat , r/o Thatha, PO Sarhali Kalan, PS Harike, Tehsil Tarn Taran, District Amritsar.

89.

169/655

Dilbagh Singh @ Bagha S/o Harnam Singh Mazbi, r/o Ratoul PS City, Tarn Taran District Amritsar.

90.

172/662

Manjinder Singh S/o Ajit Singh Jat, r/o Ratoul, PS City Tarn Taran, District Amritsar.

91.

181/682

Kulwinder Singh @ Pappu S/o Jassa Singh Jat, r/o Valtoha, PS Valtoha, Police District Tarn Taran, District Amritsar.

92.
186/695
Shri Manjit Singh @ Manna S/o Sardool Singh Jat, r/o Tanda, PS Sarhali, Police District Tarn Taran District, Amritsar.

93.

202/745

Harjit Singh S/o Amrik Singh Jat, r/o Sukhawala, PS Jandiala Guru, Police District Majitha, District Amritsar.

94.

205/773

Jatinder Singh S/o Jagir Singh Mehra, r/o Nurdi, Bazar Tarn Taran PS City Tarn Taran, Police District Tarn Taran, Amritsar.

95.

206/774

Salwant Singh @ Kulwant Singh S/o Tarlok Singh Jat, r/o Padri Kalan, PS Jhabal, Police District Tarn Taran, District Amritsar.

96.

216/811

Parabhjot Singh @ Jyoti S/o Avtar Singh Jat , r/o Muradpur, PS City Tarn Taran, Police District, Tarn Taran.

97.

260/920

Gurnam Singh @ Palli S/o Mohinder Singh Swarnkar, r/o Gali Kaselian Wali, Nurdi Adda, Police Station - City Tarn Taran.

98.

261/925

Jagdeep Singh @ Makhan Singh S/o Pritam Singh Goldsmith, r/o Adda Nurdi, Tarn Taran, PS City Tarn Taran..

99.

262/926

Jatinder Singh S/o Darbara Singh Jat, r/o Mehmoodpura, PS Valtoha, Police District Tarn Taran, District Amritsar.

100

263/932

Rajinder Singh @ Bhupinder Singh Jat S/o Charan Singh Ramgarhia, r/o 3/36 Jandiala Road, Tarn Taran, PS Tarn Taran

101

264/933

Udham Singh @ Pastol Singh @ Bahadur Singh S/o Mehar Singh Ramgarhia, r/o Nanaksar, PS Tarn Taran, Police District Tarn Taran..

102

266/942

Harbans Singh @ Kabal Singh S/o Santokh Singh Jat r/o Rasulpur, PS Tarn Taran (Sadar), Police District Tarn Taran, District Amritsar.

103

305/101

Harbans Singh @ Bansa s/o Milkha Singh Jat r/o Uboke, PS Patti, Police District Tarn Taran, District Amritsar.

104

319/104

Desa Singh S/o Amar Singh Majbi, r/o Raniwalah, PS Sirhali, Police District Tarn Taran , District Amritsar.

105

320/104

Shinda Singh S/o Bachan Singh Majbi, r/o Raniwalah, PS Sarhali, Police District Tarn Taran, District Amritsar.

106

322/104

Mangal Singh @ Manga S/o Karnail Singh Majbi, r/o Dhunda, PS Gonidwal, Police District Tarn Taran, District Amritsar.

107
84/746
Shri Rupinderjit Singh S/o Bhajan

Singh Jat, R/o Village Kang, Police Station Sadar Tarn Taran

108.
113/1030
Paramjit Singh @ Pamma s/o Narinder Singh Jat

R/o Bahmiwala, Police Station Patti, Tarn Taran.

109.
629/1073 To 634/1078
Jagtar Singh @ Jagga s/o Bawa Singh Mehra

R/o Village Tarsika, Police Station Mehta, Majitha.

The amount, as directed by the Supreme Court “shall be binding and payable” by the State of Punjab. It would be disbursed in the following manner:

The District Magistrate of Amritsar himself or through the concerned S.D.M., shall pay the amount to the next of kin of the concerned deceased. 50% of the amount shall be deposited in fixed deposit for five years in the name of the next of kin in a nationalized bank, who shall be entitled, during the term, to withdraw interest on the fixed deposit. The balance amount of 50% shall be given to them in cash or through cheque against proper receipt. The disbursement shall be made by the District Magistrate or the concerned S.D.M. within two months from the date of receipt of the amount from the State Government. The State of Punjab shall deposit the amounts at the rate mentioned above with the concerned District Magistrate within two months. After disbursement has been made by the District Magistrate, proof of payment shall be forwarded to the Commission by the District Magistrate.

It is clarified that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for infringing the right to life of the deceased by any act of omission or commission, lest it should prejudice any of the parties in the investigation being carried out by the CBI to determine the culpability under orders of the Hon’ble Supreme Court. In fact, the grant of this monetary relief by us is without prejudice to the rights of the parties.

Before parting with this order, we would like to observe that after the unfortunate turmoil in Punjab, things have returned to near normalcy. Both the State Authorities and the citizens should, therefore, treat this order as an application of balm to whatever wounds were still left and to engage themselves to make the State of Punjab more prosperous and peaceful, in keeping with the great traditions of the State. This order should not be considered in the spirit of ‘Win’ or ‘Loose’ as, indeed, it is not meant to be so construed. We hope our observations would be received in the right spirit and the State Authorities as well as the citizens would ungrudgingly work towards the prosperity of the State. Peace must prevail. Let us remember the words of wisdom of Father of the Nation, Mahatma Gandhi, who said:

“Peace will not come out of a clash of arms, but out of justice lived and done”

For remaining issues, the case be listed on 23rd Dec., 2004 at 2.30 pm.

(Justice A.S. Anand)

Chairperson

(Justice Y. Bhaskar Rao) (R.S.Kalha)

Member Member

 Punjab Mass Cremation Order dated 11 November 2005
 

BEFORE
THE NATIONAL HUMAN RIGHTS COMMISSION
NEW DELHI

Misc. Petition No. A1- 9/9 in
Reference Case No.1/97/NHRC
DATE: 11th November, 2005
Reference made by the Supreme Court on Writ Petition No.447/95 and 497/95

CORAM:
Dr.Justice A.S. Anand, Chairperson
Dr.Justice Shivraj V. Patil, Member
Justice Y. Bhaskar Rao, Member
Shri R.S. Kalha, Member

ORDER

This order will dispose of Miscellaneous Petition A1-9/9 filed by the Committee for Information and Initiative on Punjab (CIIP) on 9th September, 2005. The petition aims at seeking a clarification on "certain basic and/or questions of law germane to the present proceedings".

Ms. Indira Jaisingh, learned Senior Advocate, assisted by Mr. Ashok Agrwaal, learned counsel for CIIP appearing in support of the Misc. Petition referred to various paragraphs of the petition as also the written submissions filed on 5.7.2005 on behalf of the CIIP. She submitted that while considering the

issues of "unlawful cremations of 2097 bodies" in the three police districts of Amritsar, the Commission shall have to first hold a full-scale inquiry into "manner and method of death" and "pattern of killing" of all those who were "unlawfully cremated as unidentified/unclaimed by the police". Referring to the order of the Commission dated 4.8.1997, she submitted that quantification of compensation could only be made after 'factual foundations' are first laid to fasten the liability, after an inquiry into the "pattern of killings" or the "manner and method" of death of those persons whose bodies were "unlawfully cremated". She submitted that Commission, by interpreting Supreme Court's remit as requiring it to conduct an inquiry only about "unlawful cremations of 2097 bodies" as unclaimed/unidentified by Punjab Police and not about factum of how they had died, was unduly restricting its jurisdiction. It was urged that the Commission had failed to appreciate the import of observations of the Supreme Court to the effect that it shall decide "all issues that may be raised" by learned counsel for the parties before it while considering the scope of inquiry pursuant to the remit and that the issues raised by CIIP to the effect that the Commission should inquire into "pattern of killing" and "manner of death" were required to be decided by the Commission before proceeding further.

Learned counsel also submitted that the Commission, which awarded compensation to the NOK of 109 persons on the basis of principles of strict liability vide its order dated 11.11.2004 needs to "clarify its stand with regard to award made vide its order dated 11.11.2004" and to clarify whether the award is by way of "interim relief or final compensation".

Mr. C. Gonsalves, learned Sr. Counsel appearing for The Committee for Coordination on Disappearances in Punjab (CCDP) also referred to the written submission filed by the CCDP and urged that the Commission, with a view to find out whether or not there have been violations of human rights, needs to go into the larger question of manner in which deaths occurred and fix responsibility therefor. He also submitted that compensation awarded by the Commission on 11.11.2004 in respect of 109 persons was 'inadequate' and should be enhanced to at least Rs. 10 lakhs for each of the families.

Mr. Vahanwati, the learned Solicitor General assisted by Mr.R.S. Suri, learned Sr. Counsel appearing for the State of Punjab in response submitted that the petition filed by the CIIP (A1-9/9) was only a delaying tactic and was aimed at protracting the disposal of the matter. He submitted that all the pleas being raised in the petition (A1-9/9) as also in the written submissions filed on 5.7.2005 had been considered time and again by the Commission and rejected. He emphasized that the orders of the Commission determining the scope of inquiry were explicit and had also been upheld by the Supreme Court vide its order dated 10.9.1998 and asserted that after the order of the Supreme Court and dismissal of the review petition filed by the CIIP, the petition A1-9/9 was an abuse of the proceedings. Learned Solicitor General drew the attention of the Commission to various orders made by the Commission from 4th August, 1997 onwards and in particular to the orders of the Commission dated 13.1.1999, 24.3.1999 and 15.2.2001 to emphasise that the Commission had repeatedly expressed its view that it was required by the remit to only consider 'the issue of violation of human rights emanating from the unlawful cremations of 2097 bodies and to award compensation if it was found that there had been violation of human rights on that account'. He argued that the view taken by the Commission had been upheld by the Supreme Court vide orders dated 10.9.1998 and 11.10.1999 and there was, therefore, no scope to reopen the issue. He pointed out that the petitioner had withheld reference to the orders of the Supreme Court dated 11.10.1999 dismissing the petition of the petitioner against the orders of the Commission dated 13.1.1999 and 15.2.1999 in its petition A1-9/9 as well as in the written submissions filed by it and that 'suppression' was to say the least 'unfortunate'.

Learned Solicitor General also submitted that the task of "investigating into the manner of deaths as well as the culpability of the persons involved" had been left by the Supreme Court to the CBI, which was investigating into various cases and therefore, the Supreme Court had confined the remit to the complaints of alleged "unlawful cremations" of 2097 bodies in the three police districts of District Amritsar only and if after an inquiry the Commission came to the conclusion that there had been violation of human rights on that account, to award compensation to the next of kin of those whose bodies had been unlawfully cremated as "unclaimed/unidentified" by the police.

Mr. Vahanwati stated that though it is desirable that in matters relating to human rights, a broad approach is taken but the Commission is bound by the limitations of the remit from the Supreme Court and was required to consider the matter as per the Supreme Court order only and could not enlarge the scope of inquiry which stood rightly determined by the Commission by its various orders.

In order to consider the petition (A1-9/9) and the submissions made before us, it is necessary to recount, in brief, the proceedings which have taken place before the Supreme Court as also before this Commission till date. At the first instance it would be advantageous to extract some relevant portions from the order of remit by the Supreme Court dated 12.12.1996:

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

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

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

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

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

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

Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable. If any approval or further assistance from this Court is necessary, the same may be sought by the Commission. The necessary papers be sent to the Commission within one week in a separate sealed cover."
(Emphasis supplied)
This Commission, thereafter, heard the parties regarding the scope and ambit of the inquiry before it. It noticed the circumstances under which remit was made in its order of 4th August, 1997. The Commission observed:

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

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


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

(Underlining ours)

The Commission held that the remit from the Supreme Court required the Commission to adjudicate on the issue of compensation and that any compensation awarded by the Commission "shall be binding and payable" by the Government. For considering the nature and concept of the award of compensation in such cases, the proceedings of the Commission dated 4th of August, 1997 referred to a range of decisions of the Supreme Court in Neelabati Behera vs. State of Orissa 1993 (2) SCC - 746, D.K. Basu vs. State of West Bengal (9) Scale - 298 and PUCL vs. Union of India (1997) 2JT 311, which had laid down broad parameters of the concept of damages in public law as part of the constitutional regime. The Commission observed:

"…… Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that 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 of 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."

The order of the Commission dated 4th August, 1997 defining the scope of enquiry was challenged in the Supreme Court by the Union of India, who also sought "clarification of the order dated 12th December 1996" passed by the Supreme Court. Their Lordships, while upholding the order of the Commission dated 4th August, 1997, once again on 10th September 1998, reiterated:

"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."

xxx xxx xxx
"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 22.7.1996, 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.

The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, 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. 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 Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter."
(Emphasis ours)

A conjoint reading of the orders of the Supreme Court dated 12.12.1996 and 10.9.1998 shows that from a reading of the Press Note dated January 16, 1995, their Lordships 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 the dead bodies of large number of persons - allegedly thousands - could be cremated by the police unceremoniously with a label "unidentified". Our faith in democracy and rule of law assures us that nothing of the type can ever happen in this country but the allegations in the Press Note - horrendous as they are - need thorough investigation."

After noticing the contents of the 5th and final report filed by the CBI in the Court on December 9, 1996 concerning the large number of cremations of "unidentified" dead bodies, their Lordships found:

"The report indicates that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. Needless to say that the report discloses flagrant violation of human rights on a mass scale. Without going into the matter any further, we leave the whole matter to be dealt with by the Commission."

Their Lordships then noted:

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

and in their order of 10th September, 1998 referring to the ambit of the inquiry by the Commission, observed:

"…if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated."

Their Lordships noticed that since this Commission was required to examine and decide the remitted issue in terms of Section 17 and 18 of the Act, lest there be any ambiguity as to whether the Commission could, on being satisfied about the violation of human rights, only make a recommendation for payment of 'interim relief' or award compensation in appropriate cases, they said:

"Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable."

This is precisely the manner in which the Commission understood the ambit and scope of the remit and repeatedly said so notwithstanding the submissions of CIIP, repeatedly raised, that the Commission should first examine the "pattern of killing" and the "manner and method of deaths" which led to the cremations. The Commission has observed on earlier occasions also that since the Supreme Court had directed:

"…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."

and had also, in its order of 10th September, 1998, observed:

"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……………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."

Therefore, the view repeatedly reiterated by the Commission regarding the scope of remit and that the investigation into issues of culpability of those responsible was to be done by the CBI is fully in accord with the observations of the Supreme Court.

However, inspite of the clear observations of the Supreme Court and the determination of scope of inquiry by the Commission on 4th August, 1997, learned counsel for the CIIP once more raised an issue regarding the 'true' scope of inquiry contending that the scope of inquiry was being 'unduly' restricted by the Commission. On 16th of October, 1998, the contentions of the petitioners once again failed and were rejected.

Learned counsel for the CIIP, it appears, once again raised an issue relating to the scope of inquiry. After hearing learned counsel for the parties, the Commission vide its detailed order dated 13th January, 1999 reiterated that the scope of the Commission's jurisdiction was confined to matters relating to the alleged 'unlawful cremation' of the 2097 bodies in the police districts of Amritsar, Tarn Taran and Majitha only and to award compensation under Section 18 of the Act in case it is found during an inquiry under Section 17 that there had been "violation of human rights" of those 2097 who were illegally / unlawfully cremated as "Lawaris". It, accordingly once again rejected the plea raised by the learned counsel for the CIIP to the contrary. It was held that the Commission was required to enquire into violation of human rights as per the remit under the Supreme Court's order dated 12th December, 1996 and took the view that the scope of the subject matter of the inquiry by the Commission pertained to the examination of and grant, in appropriate cases, of relief to such of the legal heirs of 2097 persons, whose bodies were "unlawfully cremated" in the crematoria of the three police districts of Amritsar, Tarn Taran and Majitha, if it was found that their Human Rights had been violated.

A perusal of the record reveals that proceedings could not, even thereafter, make any headway as learned counsel for the CIIP on 28th February, 1999 filed a Review Petition seeking re-consideration and review of the orders of the Commission dated 13th January, 1999. While rejecting the review petition dated 28th February, 1999, by its order dated 14th March, 1999, the Commission recounted in para 2 of its order various submissions raised by the learned counsel for CIIP before the Commission during the hearing culminating in its order of 13th January, 1999 and opined that the pleas raised in the review petition were a repetition of the submissions made before the Commission, on earlier occasions, which had not been accepted by the Commission. Quoting from its earlier order of 13th January, 1999, whereby the Commission had rejected the argument raised by the petitioner, it said:

"She (Ms Nitya Ramakrishan, Counsel for CIIP) urged that in view of the wide terms in which the Supreme Court expressed itself for the proceedings before the Commission, the Commission would be in error in imposing upon itself a narrow view of its own jurisdiction. She urged that an interpretation consistent with upholding justice and Human Rights and human dignity should be preferred, as else, she said, the high expectations of the people would remain unfulfilled as the matter concerns a tumultuous phase in modern Indian history where the State had lost control over the situation and those who wielded the coercive force of the State had run amuck……."

………….
………….

"The Commission has bestowed anxious thought to this argument which was articulated in strong and emotional terms. The Commission should not be understood as belittling the seriousness of the question and issues raised by the learned counsel; but the question is whether such a larger exercise was intended by the Supreme Court to be undertaken by the Commission. On a careful consideration, the Commission is unable to subscribe to the expansive interpretation of the scope of its task suggested by the petitioners.

In our opinion, the observations of the Supreme Court excerpted above and relied upon by Ms.Nitya Ramakrishnan do not have the effect of enlarging the scope of inquiry which, by the order dated 15.11.1995 was confined to the averments in the Press Note of 16.1.1995…..".


The Commission also reproduced some of the paragraphs from the review petition and then observed:

"The Commission wishes to say that these are no doubt important issues. If the Commission had, otherwise than through the order of the Supreme Court, jurisdiction to go into the aforesaid issues, the argument that the Commission unfairly restricted its own powers would be meaningful. But the Commission, in view of its statutory limitations, has to draw its jurisdiction from the remit and mandate of the Supreme Court. The question, therefore, is not whether it is desirable that serious issues arising out of what is perceived as a violation of human rights on a mass scale alleged to have occurred in Punjab should be investigated or not. The limited question is whether such is the scope of the present remit of the Commission."


The Commission rejected the plea raised by the CIIP to the effect that the task of the Commission was "to ascertain the general pattern in the killings that culminated in the cremations". The prayer of the learned counsel for the petitioner that the Commission could seek clarifications from the Supreme Court if it doubted "the correctness of the stand of the petitioners in regard to broad scope of the remit" was also rejected.

The argument of the learned counsel for the CIIP that the observations of the Supreme Court that the Commission shall examine all issues that may be raised by learned counsel for the parties required the Commission to adjudicate on the issue regarding the "pattern of killing" raised by CIIP was rejected. The Commission explained the import of the expression "all the issues which are raised before the Commission by the learned counsel for the parties" in the order of remit and opined:

"The observations of the Apex Court relied upon merely convey that all issues that may be raised by the learned counsel for the parties related to and arising in connection with the cremation of the dead bodies in the crematoria located in the three Police Districts of Amritsar shall be determined by the Commission. The issues would be such as the awarding of compensation and other appropriate and related reliefs wherever appropriate and justified."

For these very reasons, the argument of Ms. Jaisingh on the same lines, which was rejected on the earlier occasion, cannot be accepted now. Also, on a parity of reasoning, the submission of Ms. Jaisingh that the requirement of determining "factual foundations" (order dated 4.8.1997) implied that the Commission was required to investigate into the 'manner and method of killing' of the persons whose bodies were unlawfully cremated, cannot be accepted. The "factual foundation" which has to be considered concerns the violation of human rights on account of 'unlawful cremations' of the bodies as 'unclaimed/unidentified' and not matters which were entrusted by the Supreme Court to the CBI.

After the order of the Commission dated 24.3.1999 rejecting the review petition filed by the CIIP, the petitioner, CIIP, through its counsel on 23-8-1999 filed a Criminal Misc. Petition in the Supreme Court seeking "clarification of scope of reference" made by the Supreme Court to the NHRC vide its order dated 12.12.1996. In that application, history of the case was recounted and many questions were formulated. We may, however, only refer to some of the paragraphs in the application.

In paragraph (4) (H), it was said:

"Whether, the reference to the NHRC dated 12.12.1996, asking it to adjudicate upon, all the "remaining issues" and/or all "the issues which are raised before the Commission by the learned counsel for the parties" can be interpreted as being restricted to the issue of grant of compensation and related issues? The Indian Constitution guarantees the right to life as a fundamental right. The allegation is that this right was violated on a massive scale, throughout the State and in a systematic manner, over several years. It is also submitted that such a scale and spread of violations could not have been committed at just the local level. Any investigation into the thousands of "disappearances" alleged would have to encompass within itself the systemic aspects of the crime. This would also be necessary for the purpose of coming to a just and fair measure of compensation (which after all is a measure of justice) as a remedy in Public law. This is also necessary in order to keep faith with India's international commitments under the international Covenant and Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966."

Paragraph (5) (xi):

"Upon entering into the reference the NHRC first invited the parties before it to submit on the scope and terms of the reference made to it by this Court as well as, the nature of the jurisdiction enjoyed by the Commission with respect to the reference. It was the case of the petitioners before the Commission that, for the purposes of the reference, it was a sui generis designate of the Supreme Court with all the powers necessary to complete the inquiry entrusted to it, including those conferred upon it by the Protection of Human Rights Act, 1993. The petitioners pointed out that, the factum of 'violation' having been established, it was the role of the NHRC to delve deeper and to inquire into the implications of this violation. This inquiry would include, besides grant of compensation to the victims, investigation into the systemic aspect of the violation. Elaborating on the 'systemic aspect' of the matter it was, inter-alia, submitted that:

a) in themselves the 'cremations' were illegal and violative of the Punjab Police Rules;

b) the 'cremations' must be viewed in the context of the fact that over two thousand persons were missing in the district of Amritsar alone;

c) such a massive (and systemic) operation could not have been carried out without the knowledge/support of the higher echelons of the State apparatus;

d) since the CBI investigation into three cremation grounds discloses a 'pattern' it was necessary to understand and investigate how far the patter extended to the rest of the State;

e) it was also necessary to discover the correlation between the complaints about missing persons, police abductions, illegal detentions and false encounters on the one hand and the illegal cremations on the other;

f) it was also the mandate of the NHRC to understand the nature of the 'systems failure' in the State structure that permitted such flagrant and widespread human rights violations;

g) the NHRC would also need to enumerate the 'steps' necessary to ensure that such violations do not recur".

(underlined by us)
Paragraph (5) (xxii) (e):

"The NHRC is misconceived in attempting to make "cremation" a necessary criterion for a claim before it where it is the allegation that, post abduction by the police, the killing and the cremation was done without the knowledge of the family."

Paragraph (5) (xxiv):

"By order dated 13.1.1999, the NHRC passed yet another order which is called "ORDER ON THE SCOPE OF INQUIRY". In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to - "award of compensation and other appropriate and related reliefs wherever appropriate") connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon'ble Court. Further, that the scope of the inquiry under this court's direction is limited only to those illegal killings/disappearances that culminated in the cremation of 2097 bodies in the said crematoria namely, the Durgyana Mandir, Amritsar, the Patti Municipal Committee Crematorium and the Tarn Taran Crematorium, located in the above said district of Amritsar."

(underlined by us)
Paragraph (5) (xxvi) (j):

"The NHRC's mandate is based upon the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966. The attempts of a human rights tribunal must always be to ensure State accountability and discourage attempts to win impunity."

Paragraph (5) (xxvii):

"However, the NHRC rejected the plea for a reconsideration of the said order on the erroneous view that, under the terms of the 'remit' from this Hon'ble Court, it was only referred the "…issue of cremation of 2097 dead bodies as unclaimed bodies by the police in the aforesaid police districts". The NHRC also rejected the prayer asking that it itself seek a clarification from this Hon'ble Court by holding that the view of the petitioner is not "….one of the possible views flowing from the directions of the Apex Court."
(underlined by us)
Paragraph (5) (xl):

"Having failed to persuade the NHRC to reconsider its stand in the lights of its submissions or even to refer matter back to the Supreme Court for clarification, the petitioners have no choice but to move this Court for necessary clarifications. Particularly since, this Court and the NHRC have both held that the Supreme court retains "seisin over the matter"."

The prayer made in the petition was:

"a) The NHRC has to investigate and give its finding on every complaint of illegal abduction, enforced disappearance, arbitrary execution and disposal of dead bodies carried out through out Punjab;

b) The NHRC has to examine the antecedents, circumstances, character, and contexts of such violations to determine the variety of over lapping rights inherent in the rights to life, liberty and equality before the law, which have been destroyed;

c) The NHRC has also to determine the multi fold spiral of responsibility that permitted such a systematic practice of crimes against humanity, including the identities of officials and agencies that conducted connived or knew, and did not take measures in their power to prevent, suppress or to report them;

d) The inquiry must also identify the victims, i.e. the persons who individually and collectively suffered harm, including physical and mental injury, emotional suffering, economic loss or impairment of their fundamental rights in other ways. The process of identification must also include, apart from family and dependents of the disappeared and killed, such other persons who suffered harm in process of attempting to prevent these offensives and in helping the victims;

e) Quantification of compensation and development of other measures of restitution and rehabilitation, including suggestions for ensuring that such crimes are not repeated in the future, must then be evolved based on criteria through the determination of the aforementioned issues."

In the petition, the petitioner also referred to certain interim report based upon "a detailed documentation of 838 cases of disappearances' and the inquiry conducted by the CCDP in respect of alleged disappearances in Punjab during the period 1984 to 1995.

The application filed by the CIIP on 23-8-1999, was dismissed on 11.10.1999. Their Lordships of the Supreme Court, while rejecting the application, said:

"We are not prepared to interfere with the order of the National Human Rights Commission or proceedings which are being conducted there at the instance of this Court. If any fresh instances of killing or disappearance have come to the notice of the applicant, which are not the subject mater of enquiry of the CBI, the applicant may either approach the Court under Article 32 of the Constitution or recourse to any other remedy available under law including a writ petition under Article 226 of the Constitution.

Applications for clarification and stay rejected."

The petitioner, CIIP, however made no reference to the filing of the application dated 23-8-1999 against the orders of the Commission dated 24th march, 1999 rejecting the review petition filed by CIIP, or the order of the Supreme Court dated 11.10.1999 either in their written submissions filed before the Commission (supra) or in the present petition (A1-9/9). It appears that the petitioner, CIIP, kept back this information from the Commission, which is not only unfortunate, but makes CIIP guilty of suppressio veri . The rejection of the application, filed by the CIIP on 23.8.1999 in the Supreme court (supra), clearly negatived all such pleas as were raised by the petitioner repeatedly before the Commission.

Shri Ashok Agrwaal, learned counsel for the CIIP even after the order of the Supreme Court dated 11-10-1999 once again asked for enlarging the scope of enquiry or in the alternative to make a reference to the Supreme Court to seek clarification about the scope of inquiry. No reference was made to the rejection of its application by the Supreme Court, vide order dated 11th October, 1999 even at that point of time. The Commission by its order dated 15th February 2001 rejected the "fresh prayer for reviewing its earlier orders and enlarging the scope of enquiry" or to seek "clarification" from the Supreme Court regarding the scope of the remit. The Commission observed:

"So far as the scope of these proceedings emanating from a remit by the Supreme Court is concerned, that is already determined by the earlier orders of the Commission dated 4.8.1997 and 13.1.1999. The order of the Supreme Court dated 10.9.1998 also does not give any indication that the determination of the scope of enquiry by this Commission requires any reconsideration. It is for this reason that earlier by orders dated 24.3.1999 and 8.9.1999 prayers made for reviewing the Commission's order determining the scope of inquiry were rejected. For the same reason a fresh prayer for reviewing the earlier order and enlarging the scope of enquiry by this Commission cannot be accepted.

Shri Agrawal then submitted that the Commission may make a reference to the Supreme Court seeking clarification on the scope of enquiry remitted to the Commission by its order dated 12.12.1996. We do not consider it necessary to seek any such clarification since the Commission does not entertain any doubt in that behalf. It is, however, open to the petitioners to seek any such clarification from the Supreme Court, if so advised."

(Emphasis ours)

On 11th November, 2004, the Commission while awarding compensation in favour of next of kin of 109 persons, who had died while in the custody of the police and whose bodies had been cremated as unidentified/unclaimed, once again reiterated its view about the scope of inquiry before the Commission and recapitulated some of the earlier orders in that behalf.

For the detailed reasons given in the order dated 11.11.2004, we are not persuaded to review the order dated 11-11-2004, as regards the amount of compensation also, as pleaded by learned counsel for CCDP.

Undeterred by the clear mandate of the remit by the Supreme Court and its orders dated 10th September, 1998 and 11th October, 1999 upholding the consistent view of the Commission, repeatedly expressed, regarding the scope of inquiry, learned counsel for CIIP has now filed this petition (A1-9/9) raising pleas similar to the ones raised by him on various earlier occasions which stood repeatedly rejected. Some of the pleas had been raised even in the application filed by CIIP in the Supreme Court on 23-8-1999 which was rejected by that court on 11-10-1999. There is, thus, force in the submission of the learned Solicitor General that the filing of the petition A1-9/9 is an abuse of the process of the Commission. The petition (A1-9/9) contains no fresh material. It again aims at asking the Commission to enlarge the scope of enquiry overlooking various earlier orders of the Commission more particularly the orders of 4th August, 1997; 13th January, 1999; 24th March, 1999; 15th February, 2001 and 11th November, 2004.

We are constrained at this stage to observe that despite the following comments of Their Lordships of the Supreme Court, made in their order dated 10.9.1998, deprecating the attitude of the parties to delay the 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 various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, 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. 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 Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter."
(Emphasis ours)



The same attitude of CIIP has continued even after 10th September, 1998 and it has continued to file application after application for "clarification"; "reconsideration"; "review" and to "seek clarification from the Supreme Court regarding scope of inquiry". We have already referred to all such petitions and do not wish to repeat the same. The manner in which repeatedly settled issues regarding the scope of inquiry before the Commission have been sought to be reopened by the CIIP, creates an impression that it perhaps is not sensitive to the need for an expeditious grant of compensation and rehabilitation to the affected families. The repeated petitions filed by CIIP have delayed consideration of "grant of compensation to the legal heirs" or next of kin of the deceased whose bodies had been "unlawfully cremated" as "unidentified"/ unclaimed resulting in the delay in their rehabilitation and we disapprove of that attitude.

There is one other aspect we wish to comment upon. It is the objectionable and intemperate language used by the learned counsel for the petitioner in this petition A1-9/9. In this connection, we may only refer to some paragraphs of the petition.

In para-1(C) at page-12, it is stated:

"Whether the Commission can not conclude the present proceedings by restricting its inquiry to the violations of rules pertaining to cremation of unidentified/unclaimed bodies by the police?

This proposition has never been aired prior to the hearing in the case on 5.5.2005. It has only to be stated to be rejected."

Again, the following statements:

"It is respectfully submitted that the petitioner committee cannot agree with this interpretation of mandate by the NHRC. It, further, submits that the order dated 11.11.2004 (unless interpreted as amount to award of an interim compensation) and, the pronouncements by the Commission with respect to the manner it wishes to proceed in the other cases comprising the present proceedings, hit at the core of these proceedings. The stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence."

In para 3 of the petition , it is stated:

"Without clarifying its stand with respect to the award made vide its order dated 11.11.2004, in subsequent hearings, the NHRC has orally indicated that it is inclined to conclude the proceedings with respect to the "remaining" cases also, on the basis of a severely restricted interpretation of the expression "human rights violation". By this interpretation, the Commission has stated that it would consider its mandate from the Supreme Court discharged by a determination of whether the cremations carried out by the police were in accordance with the rules or not."

Not only is it objectionable and not permissible to refer to some observations of the Commission/Bench made during hearing, not based on any court record or proceedings but to say that the 'proposition' of the Commission 'has only to be stated to be rejected' is most uncalled for. The use of the expression "the stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence", is equally objectionable. Learned counsel for the CIIP has permitted himself the liberty of using such objectionable expressions as farcical and mockery - it is, in any event, not for a party to 'reject' a proposition made by the Bench. It is open to it to question it in higher forum, which has not been done.

Even, otherwise it is also factually incorrect to say that the 'proposition' had "never been aired prior to the hearing of the case on 5.5.2005". In this connection a reference to various averments made by the petitioner itself in its application filed in the Supreme Court on 23.8.1999, exposes the falsity of the statement. Reference in this connection be made to various paragraphs including paragraph 5 (xxiv) of that petition, wherein interalia it was said :

"By order dated 13.1.1999, the NHRC passed yet another order which is called "ORDER ON THE SCOPE OF INQUIRY". In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to - "award of compensation and other appropriate and related reliefs wherever appropriate") connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon'ble Court."

It would be relevant in this connection to also refer to paragraph 8 of the order of the Commission dated 13.1.1999, wherein it was observed:

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

Thus, making such factually incorrect statements do no credit to the petitioner.

Besides, it is unknown to legal jurisprudence that the Commission be asked by a party to litigation that it needs to, before proceeding further, "clarify its stand with respect to the award made vide its order dated 11th November, 2004.

The order of 11th November, 2004 is clear. A short reference to the following observations in the order dated 11.11.2004 would show that no "clarification" of any "stand" of the Commission is required. It only requires the order to be read carefully and understood.

"It, therefore, follows that this Commission would be totally justified and, in the facts and circumstances of the case, duty bound and obliged to redress the grievances of the next of kin of the deceased by award of monetary compensation for infringement of the indefeasible right to life of deceased and apply balm to their wounds. This claim, as has been noticed in an earlier part of the order is based on the principle of strict liability. The award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is an appropriate remedy available in public law jurisdiction for repairing the public wrong. The NOK of the deceased, therefore, must receive the amount of compensation from the State of Punjab which is vicariously liable and cannot be absolved of 'its responsibility of safe keeping of the citizen in its custody. We accordingly hold the State of Punjab liable to make monetary amends for the infringement of the right to life of the deceased, who were in the custody of its police prior to their death by paying compensation to NOK of the deceased. The second question is answered accordingly."
xxx xxx xxx
xxx xxx xxx
"It is clarified that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for infringing the right to life of the deceased by any act of omission or commission, lest it should prejudice any of the parties in the investigation being carried out by the CBI to determine the culpability under orders of the Hon'ble Supreme Court. In fact, the grant of this monetary relief by us is without prejudice to the rights of the parties."

The CIIP did not question the award / order of the Commission dated 11th November, 2004. Various proceedings which took place after 11-11-2004, show that not only the State of Punjab honoured the award, as indeed it was duty bound to because of the clear direction of the Supreme Court in its order of remit to the effect that "any compensation awarded by the Commission shall be binding and payable" but the beneficiaries, barring a few, have already received the compensation and accepted the order dated 11-11-2004. We, therefore, record our strong disapproval against the intemperate and objectionable language used by the petitioner and hope that they shall be careful in future. We leave the matter at that and say no more on this aspect.

As a result of the above discussion we reject and dismiss the petition (A1 - 9/9) filed by CIIP.



(A.S. Anand)
Chairperson


(Shivaraj V. Patil) (Y. Bhaskar Rao) (R.S. Kalha)
Member Member Member
 

 

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