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.”
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
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.”
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
“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-ŕ-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
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 1˝ 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