Punjab Mass Cremation orders

NATIONAL HUMAN RIGHTS COMMISSION
SARDAR PATEL BHAWAN
NEW DELHI


Reference Case No. 1/97/NHRC

Date :


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 grantin