Bhalla Commission of Inquiry: Punjab Mass Cremations Case
In its October 9, 2006 order in the matter of police abductions leading to disappearances and secret cremations in Punjab, the National Human Rights Commission (NHRC) appointed a Commissioner of Inquiry in Amritsar, retired High Court Judge K.S. Bhalla, to identify the remaining 814 (revised to 800) cremation victims from the CBI lists, if possible, by June 30, 2007. The NHRC ordered the Bhalla Commission to complete the identification in association with petitioner Committee for Information and Initiative on Punjab (CIIP) and other parties who wished to provide relevant evidence.
The Bhalla Commission began holding hearings on December 15, 2006. The NHRC also continued to hold hearings regarding the proceedings before the Bhalla Commission. The Bhalla Commission submitted its final report to the NHRC in July 2007.
Although the NHRC limited Justice Bhalla’s mandate to identifying the remaining illegal cremations, it had placed no further restrictions. However, Justice Bhalla demonstrated little interest in the underlying facts. In his February 3, 2007 order, he explicitly stated that human rights violations by the police did not fall within his scope of inquiry. Further, at the April 10, 2007 hearing, Justice Bhalla stated: "Naturally, if the police had known the identity of the individuals, they would have turned over their bodies to the families. What interest would they have in keeping the bodies?" This comment reflected Justice Bhalla’s dismissal of the contention that the police purposely covered up the identities of the individuals and destroyed their bodies in order to eliminate significant forensic evidence of torture and custodial death.
Read further updates in Ensaaf's Dispatch, starting December 2007.
Ensaaf provides litigation support and investigates and documents disappearances and extrajudicial executions in Punjab for the hearings before the Bhalla Commission and NHRC.
Lack of Impartiality and Transparency
The Bhalla Commission and NHRC held ex parte meetings, excluding the petitioner CIIP. As a result of these secret meetings, the NHRC issued an order on October 30, 2006, that restricted participation in the Bhalla Commission proceedings to those families who had submitted claims in response to notices issued in 1999 (88 claims) and 2004 (1,769 claims), resulting in a total of 1,857 claims. The NHRC also severely restricted all 1,857 claimants from participating in the proceedings by requiring the claimants to resubmit their claims in response to a notice issued in November 2006. The end result was that only 70 of 1,857 claimants were eligible to participate in the Bhalla Commission proceedings. Thus, victim families whose relatives were among the 800 unidentified bodies and 1,857 prior claimants, but who failed to respond to the Commission’s November 2006 notice, could not appear before the Bhalla Commission. Similarly, victim families whose relatives were among the 800 unidentified bodies and who submitted claims in response to the November 2006 notice, but failed to submit claims in 1999 or 2004, were excluded.
The failure to conduct proceedings in a transparent and impartial manner continued at the January 2nd hearing, when Justice Bhalla left the courtroom to hold private discussions with representatives of the Punjab Police, before returning to start the hearing. Neither the Commission nor the Punjab Police have informed the CIIP of what transpired in Justice Bhalla’s chambers.
At the February 3rd hearing of the Bhalla Commission, when a survivor attempted to testify about the abduction and murder of his son, Justice Bhalla, at the objection of the Punjab Police, refused to allow the survivor to testify. Instead, Justice Bhalla instructed the CIIP to privately discuss the survivor’s claim with the Punjab Police, stating that he would accept the identification if the Punjab Police agreed to it. The CIIP refused to make an off-the-record deal with police, arguing that it would be a serious breach of transparency and ethics. It argued that the Commission had the responsibility to identify the cremation victims and could not be dependent on the police. The CIIP urged the Commission to verify the claim itself and adopt a methodology to identify the secret cremation victims, but Justice Bhalla refused. CIIP submitted the survivor’s affidavit at the March 3rd hearing as per Justice Bhalla’s directions; Justice Bhalla subsequently agreed with the Punjab Police's rejection of the identification. Justice Bhalla stated that victim families could not submit claims directly to the Commissions, although they could provide information for the limited purpose of identifcation through CIIP or other petitioners. He failed to explain how families excluded by the October 2006 NHRC order and November 2006 notice would have known that they had this limited option.
At the February 5th NHRC hearing, the Punjab police submitted 54 identifications to the NHRC. The NHRC gave CIIP ten days to respond to these identifications. Despite its responsibility and specific resources to investigate the mass cremations, the NHRC refused to verify these identifications, and placed the entire burden on the CIIP. As discussed below, Ensaaf discovered a fraudulent identification made by the police.
Arbitrary and Ineffective Approach to Identifying the Cremation Victims
The NHRC’s October 30th order severely handicapped the Bhalla Commission’s ability to identify the remaining bodies. The order required the 1,857 prior claimants, who may be among the 800, to resubmit their claims. Neither the NHRC nor the Bhalla Commission explained why the victim families, whose claims were already on file with the Commissions, needed to resubmit their claims. Further, as these 1,857 claims were already on file, they should have been automatically reviewed by both Commissions to determine if they corresponded to the 800 unidentified bodies.
At the initial hearings, through written and oral argument, the CIIP, with support from Ensaaf, argued for a rigorous methodology to resolve the unidentified cremations, urging the Commission to require the State to produce FIRs, post mortem reports, habeas corpus petitions, and news reports on abductions, disappearances and encounters. The CIIP pointed out that, in the past, it had identified many of the cremation victims by analyzing such records. The CIIP also urged the Commission to solicit claims from throughout Punjab and allow all prior and new claimants to participate in the proceedings. At least ten percent of the victims previously identified by the NHRC, as having been secretly cremated in Amritsar, lived outside of Amritsar district. The Bhalla Commission rejected these arguments at the February 3, 2007 hearing.
In addition to adopting a defective methodology to identify the remaining victims, the Commissions also managed to un-identify cases that were previously identified. Of the 88 claims that were filed in response to the NHRC’s first public notice in 1999, the Punjab Police had proposed compensation for 18 families with no admission of liability or guilt. All of these families rejected the compensation. Because these families previously qualified for compensation, they should have been included among the identified cremations. However, many of these 18 victims reappeared on the unidentified list of 800.
Justice Bhalla continued the NHRC practice of relying on the Punjab Police for identifications or confirmations of victims of illegal cremations, instead of developing an independent methodology or conducting his own investigations. While CIIP and other petitioners submitted identification information to Justice Bhalla, he waited for confirmation from the Punjab Police. If the Punjab Police rejected the identification, Justice Bhalla placed insurmountable evidentiary burdens on the petitioners, requiring them to produce evidence of the dead body or cremation. Despite placing these requirements on the petitioners to prove their cases, Justice Bhalla failed to require the Punjab Police to offer any proof or explanation when it rejected the identifications.
The Need to Investigate Each Case
Ensaaf's investigations demonstrate that the Punjab Police cannot be trusted to make the identifications. First, the State of Punjab has admitted to forging the identities of over 300 cremation victims in order to protect police collaborators, who were alleged to have been killed in police encounters and then cremated as unidentified bodies, now living under assumed identities. This admission means that the true identities of the cremation victims cannot be established until the Punjab Police reveals either the identities of the police collaborators or the identities of the victims cremated in lieu of the collaborators. This information is necessary to ensure that the disappearances are finally resolved, and that compensation is granted to the true victim families.
Second, the Punjab Police has made fraudulent identifications to claim compensation. After investigating five cases, chosen randomly, of the 54 cases identified in January 2007 by the Punjab Police, Ensaaf learned that one of the cases is a fraudulent identification, and survivors deny the police version of events in the other four cases. In the fraudulent case, the next of kin of the decedent readily admitted that his father, the alleged secret cremation victim, and brother, were both former police officers. However, his father had died of natural causes at home. The local villagers confirmed that his father had died a natural death. A police contact, with the allure of compensation, encouraged him to agree to having his father identified as a victim of a secret cremation. In the other four cases, the victim families reject the assertion of the Punjab Police that their relative was killed in an encounter, and are ready to testify about the extrajudicial execution of their relatives. The CIIP raised its objections to these cases at the February 15, 2007 hearing before the NHRC. With respect to the fraudulent case, the Chairperson of the NHRC, Justice Patil, responded by saying that the CIIP had no standing to challenge the identification and that it did not have the power of attorney to represent the victim family. The CIIP reminded the Commission that it had initiated the mass cremations case through a public interest litigation petition, and thus had standing to participate in the proceedings. Secondly, it was impossible for anybody to produce power of attorney where the victim remained unidentified, and the CIIP had no interest in representing the fraudulent victim family. Thus, the issue of power of attorney was not applicable in this situation. After some argument, Justice Patil instructed the State, which had submitted the incorrect identification, to investigate only that identification. Again, the issue of identifying the true victim and compensating the true next of kin arises.
The Punjab Police subsequently submitted that they had mistakenly identified the secret cremation. As the CIIP urged, the government’s admission should have compelled the NHRC to conduct its own independent investigations into the other cremations identified by the police, but the NHRC has, thus far, failed to take action.
Third, the NHRC is basing the amount of compensation solely on whether Punjab Police admits or denies custody of the victims prior to their cremations. The NHRC has refused to challenge the police version of events and conduct its own investigations to determine whether the victims were killed in custody or in genuine encounters. Furthermore, the NHRC refuses to consider evidence proffered by the victim families. In the four other cases mentioned above, all of the victim families stated that their relative was killed in custody. The NHRC refused to consider the veracity of their contentions and sided with the police.
