Before the National Human Rights Commission
New Delhi
Case No. 1/97/NHRC
(Arising out of the Order dt. 12th December, 1996
of the Hon'ble Supreme Court of India
in Writ Petition 447/1995 and 497 of 1995)
CORAM:
Justice Shri M.N. Venkatachaliah, Chairperson
Justice Shri V.S. Malimath, Member
Shri Virendra Dayal, Member
Order on the Scope of Inquiry
We are called upon to examine the true scope of inquiry which the National Human Rights Commission is required to undertake under the remit of the Supreme Court’s order dated 12th December, 1996 in Writ Petition (Cr.) No. 497/95 and 447/95. The petitioners contend that the Commission is required to inquire into all incidents of what are referred to as “extra-judicial eliminations” or “involuntary disappearances”, “fake encounters”, “abductions and killings”, etc. allegedly by the Punjab Police during the decade of 1984-1994.
On a careful consideration, the Commission is unable to subscribe to the expansive interpretation of the scope of its task suggested by the petitioners.The contention of the Union and the State of Punjab on the other hand is that the inquiry is restricted only to 2097 cases of cremation of the bodies – 585 fully identified, 274 partially identified and 1238 unidentified – in the Police Districts of Amritsar, Tarn Taran and Majitha.
As the controversy centers around the correct understanding of the order of remit of Supreme Court, dated 12.12.1996, the same is extracted below: –
“ORDER”
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. (Underlining is ours). 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 enquiry 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. (Underlining is ours). 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.”
The Court on December 11, 1996 passed the following order:
“Pursuant to this Court's order dated November 15, 1995, the CBI has placed on record the 5th and final report dated December 9, 1996 regarding the cremation by the police of lawaris dead bodies in various Districts of Punjab. Mr. M.L. Sharma, Joint Director, CBI is personally present in the Court. We agree with the suggestion of Mr. Sharma that the contents of the report be kept secret, as at present, because further investigation has to be undertaken by the CBI. Mr. Sharma has suggested that since large number of cases may have to be registered, the CBI may be permitted to undertake investigation of 10 – 15 cases and the remaining cases be investigated by the Punjab police. We appreciate the suggestion but since the CBI has done the initial investigation in this matter and has placed detailed reports before this Court while appreciating the work of the CBI, we are of the view that as at present, the CBI should undertake the investigation of all the cases which are to be registered as a result of the final report. 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.
We, however, give liberty to the CBI to seek further directions, if necessary, from this Court in line with the suggestion made by Mr. Sharma or for any other purpose. The CBI shall, after every three months, place a status report regarding the investigation in this court”.
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 Sections 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 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 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”.
There were two writ petitions before the Supreme Court, the first one being WP 447/95 brought by the “Committee for Information and Initiative on Punjab” in which petitioner sought a direction for initiation of punitive action against the officers said to be responsible for the illegal cremations; and payment of compensation to the next of kin of all the persons killed and cremated by the Punjab Police. Some statements in paragraphs 4 and 5 (xviii) of the petition refer to extra-judicial executions said to have occurred all over the State of Punjab by the Punjab Police and in ground (d) to cremations in various districts/cities of Punjab. These allegations in paragraph 4 and 5 (xviii) are general in nature and are not accompanied by material particulars and do not admit of specific traversal except by way of general denials.
However, there were suggestions in the course of the writ petition that the cremation of the bodies at Durgyana Mandir Crematorium and Patti Municipal Committee cremation ground which were done by the police themselves did indicate earlier extra judicial killings. The estimate of the number of these bodies was given at about 2000. Particulars of the same are furnished in paragraphs 2 and 5(i) of the petition. The affidavits filed in support of the writ petition also relate to the cremations at the said two crematoria. The list of dates furnished also referred to the cremations that are alleged to have place in these two cremation grounds. What emerges from an examination of the pleadings taken as a whole in the writ petition is that the main grievance brought before the Court for examination relates to extra-judicial killings/disappearances that culminated in the bodies of those killed being cremated at Durgyana and Patti Municipal Cremation Grounds.
The connected Writ Petition 497/95 was brought by Smt. Paramjit Kaur, the wife of Shri Jaswant Singh Khalra, for the issue of a writ of habeas corpus to produce Shri Jaswant Singh Khalra before the Court. During the pendency of this writ petition, attention of the Supreme Court was drawn to the Press Note dated 16.1.1995 under the title “DISAPPEARED” “CREMATION GROUNDS” based on the investigation by Shri Khalra and Shri Dhillon. The Press Note states that a large number of human bodies were cremated in the District of Amritsar as “unidentified”, 700 bodies at Tarn Taran Municipal Crematorium, 400 at Patti Municipal Cremation Ground and 2000 at Durgyana Mandir Crematorium. The Press Note only referred to the alleged cremations during the relevant period in the abovesaid three crematoria. The Press Note did not speak of any illegal executions or similar cremations in any other District of Punjab.
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 indicates 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 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 to the Commission was similar though the purpose is different.
In carrying out the orders of the Supreme Court, the CBI published the following Press Note inviting information from the general public:
“Appeal to Public”
Under the orders of the Hon’ble Supreme Court of India, the Central Bureau of Investigation (CBI) is making an enquiry into the matter pertaining to disposal of unidentified/unclaimed dead bodies in three Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 to December, 1994. Through this notice, it is informed to the public at large that if any persons/authority/Govt. office has any information/material which may be of any assistance to the CBI in the enquiry, the same may be placed before the CBI in their camp office at Sainik Rest House, Court Road, Amritsar.”
This indicates that the CBI understood the Supreme Court’s order dated 15.11.1995 as requiring it to inquire only into the disposal by cremation of unidentified/unclaimed dead bodies in three Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 and December, 1994. If, as contended by the learned counsel for the petitioners, the scope of the inquiry was not limited to the above said Police Districts alone it would be reasonable to expect that petitioner would have moved the Supreme Court for a direction to the CBI appropriately to enlarge the scope of inquiry to the entire state of Punjab and not to limit it to the Police Districts of Amritsar, Majitha and Taran Taran, as sought to be done by the Press release. The absence of any such endeavour is an indication as to how all concerned have understood the scope of the inquiry and the subject matter. In pursuance of the inquiry conducted by them, the CBI was submitting its reports, from time to time. At no stage were any objections raised by the petitioners against limiting of the inquiry to the three police districts of Amritsar alone. The fifth and final report was filed in the Court on the 9th December, 1996, copy of which has been sent to the Commission under the orders of the Supreme Court.
The 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, leaving the whole matter to be dealt with by the Commission.
The Commission may notice here that the arguments strongly urged in support of the more expansive view of the scope of the proceedings yet remains specifically unanswered. Ms. Nitya Ramakrishnan drew the Commission’s attention to the observations of the Supreme Court in the course of its order dated 11th December, 1996 to the effect that “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……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” (emphasis supplied). She 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 expectation 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. She was conscious, she said, that such an exercise would be a demanding and difficult one requiring expansive mechanisms for investigation; but said that was no consideration when such an important issue of the very survival of democratic fabric, Rule of Law and the right to life had been challenged. The Commission has bestowed anxious though to this argument which was articulated in strong and emotional terms. The Commission should not be understood as belittling the seriousness of the questions 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 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. In view of the clear and specific direction of the Supreme Court, it is not possible to accede to the contention of the learned counsel for the petitioners that the scope of inquiry is not limited to cremations that took place in the crematoria located in the three Police Districts of Amritsar, Majitha and Tarn Taran but the entire gamut of all “extra-judicial eliminations” in the State of Punjab.
The view that the commission takes of the matter, received further support from what the Supreme Court itself said in its order dated 10.09.1998 while disposing of the application of Union of India challenging the Commission’s order dated 4.8.1997 on the preliminary issues. The Supreme Court said:
“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.”
In the light of this categorical direction of the Supreme Court itself, there is no justification for any doubt in regard to the true scope of inquiry which the Commission is to undertake under the remit of Supreme Court.
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 2907 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 Supreme Court dated 15.11.1995. 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.
Sd/
(Justice M.N. Venkatachaliah)
Chairperson
Sd/
(Justice V.S. Malimath)
Member
Sd/
(Shri Virendra Dayal)
Member
13th January, 1999
