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Is justice possible without looking for the truth?

Siddharth Narrain

There is a demand that the NHRC take a more proactive role in the Punjab illegal cremations case.

ON NOVEMBER 11, 2004, the National Human Rights Commission (NHRC), in a landmark ruling, awarded Rs.2,50,000 each as compensation to the next of kin of 109 people found to be "admittedly in the custody of the Punjab police at the time of their death." The Commission held the State of Punjab accountable and vicariously responsible for the infringement of the indefeasible right to life of these people as it "failed to safeguard their lives and persons against the risk of avoidable harm while in the custody of the state." The Commission's order was part of the Punjab mass cremations case in which it is looking into the alleged illegal cremation of 2,097 people by the State police in three crematoria in Amritsar district.

The case was initially filed by the Committee for Information and Initiative on Punjab (CIIP) in the Supreme Court in April 1995. The Supreme Court, through its order of November 15, 1995, directed the Central Bureau of Investigation (CBI) to appoint a high-power team to investigate claims contained in the press note released by Jaswant Singh Khalra, general secretary of the Akali Dal's human rights wing. The press note, released on January 16, 1995, a few months before he was abducted from outside his house, alleged that security forces in Punjab had been secretly cremating thousands of bodies labelled as unidentified. Most of them were picked up for interrogation, it added.

On December 10, 1996, the CBI submitted its final report on the issue of police abductions and illegal cremation of bodies. The court decided to keep the full contents of the report secret but disclosed 2,097 illegal cremations, including 582 fully identified, 278 partially identified, and 1,238 unidentified bodies. The court's order of December 12, 1996, requested the NHRC to look into the matter and determine all issues concerning the matter raised by counsel for the parties.

In the last hearing before the NHRC, counsel for the CIIP and the Committee for Coordination on Disappearances in Punjab (CCDP) pointed out that the Commission's award was given without adjudicating on facts based on a prima facie view of the situation. Arguing that there was nothing in the Supreme Court's orders that restricted the Commission's mandate to only determining if there were illegal cremations, they argued that the Commission should go into the question of civil culpability.

The CIIP identified a further 175 people who had been cremated. Punjab admitted to the identity of 111 of them and said it was scrutinising the rest for which it needed to inspect their records, which were with the CBI. The affidavits filed by the Punjab police show that, in an overwhelming number of cases, the police knew the identity of those cremated, but did not inform the families concerned. Only seven per cent of the cases in the list of identified bodies were unidentified at the time of cremation. In 95 cases, the police admitted custody at the time of death.

The affidavits reveal that the Punjab police violated the basic requirements under the Punjab Police Rules. In 115 cases, they did not conduct an inquest. In 55 cases, it was done after the post-mortem examination. The rules say that a post-mortem should be done if there is a doubt as to the cause of death as stated by the inquest report. In 286 cases, the bodies were cremated on the same day as the death — a next to impossible feat if the police had complied with all the procedures related to conducting an inquest and post-mortem as laid down by the Punjab Police Rules.

According to the Draft Convention on the Protection of All Persons from Enforced Disappearances, currently under consideration by the United Nations Sub Commission on the Promotion and Protection of Human Rights, enforced disappearances undermine the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedom, and that the systematic practice of enforced disappearances is of the nature of a crime against humanity.

Human rights groups are hoping the NHRC will set a precedent that will strengthen the protection of human rights in the country.

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