National Human Rights Commission: Punjab Mass Cremations Case

In January 1995, Jaswant Singh Khalra released official records, claiming they proved that security forces in Punjab had been secretly cremating thousands of bodies as unidentified. He further alleged that these secret cremations were of people “disappeared” by security forces for their purported involvement in the separatist movement from 1984 to 1994 in Punjab. Khalra’s documentary evidence included entries in firewood purchase registers from crematoria in Amritsar district when police officials deposited bodies and purchased wood to burn the bodies. The registries also identified the officers depositing the bodies, and, in some cases, the identities of the bodies.

Read Ensaaf's Summary Report: The Punjab Mass Cremations Case: India Burning the Rule of Law (January 2007) (1 MB, pdf).

That same month, he and Jaspal Singh Dhillon filed a writ petition in the Punjab and Haryana High Court to impel it to investigate their discovery of mass illegal cremations. The High Court dismissed the petition on grounds of vagueness. The Committee for Information and Initiative on Punjab (CIIP) also filed a public interest litigation in the Supreme Court to demand a comprehensive inquiry into the mass cremations. While this petition was pending, the Punjab Police abducted Khalra on September 6, 1995, from outside of his house. The Supreme Court subsequently ordered the Central Bureau of Investigation (CBI) to investigate these crimes.

In December 1996, the Supreme Court referred the matter of police abductions leading to disappearances and secret cremations in Punjab to the National Human Rights Commission (NHRC) as Reference Case No. 1 of 1997, observing that the CBI's report disclosed a "flagrant violation of human rights on a mass scale." The December 1996 report by the CBI showed 2097 illegal cremations at three cremation grounds of Amritsar district. Of these, the CBI identified 585, partially identified 274, and failed to identify 1238. This report was kept under seal.

On August 4, 1997, the NHRC declared that in this case it was a sui generis body of the Supreme Court with its powers under Article 32, and the Supreme Court retained seisin over the case. Thus, the NHRC was not limited by the Protection of Human Rights Act, 1993. The NHRC also held that the quantification of compensation for survivors of victims would arise “only after the factual foundations are laid establishing liability.” In a separate order on proceedings, the NHRC called for a meeting to discuss mechanisms for conducting inquiries. The Government of India challenged the NHRC’s decision before the Supreme Court. The Court largely upheld the NHRC’s interpretation in September 1998.

Subsequently, however, the Commission itself limited its mandate. In its January 13, 1999 order, the NHRC placed a territorial restriction on its investigation, narrowing its mandate to three crematoria in Amritsar district. Also, the Commission limited its study to illegal cremations, ignoring the starting point of forced disappearances and other methods of disposing of bodies. CIIP appealed, and produced detailed evidence of disappearances, arbitrary executions, and illegal cremations in other districts of Punjab. Both the NHRC and the Supreme Court, however, refused to intervene and the scope of inquiry by the NHRC remained limited to 2097 cremations, mentioned in the CBI’s report as having taken place in three crematoria of Amritsar district.

After four years of debating these preliminary issues and deciding to restrict the inquiry, the NHRC collected claims and prepared to offer limited redress to 18 families. In its August 18, 2000 order, the NHRC agreed to the Punjab government's proposal to offer compensation with no admission of wrongdoing or prosecution of officials. The order admitted that the Punjab government had “neither conducted any detailed examination in these cases on merits nor [did] it admit[ ] its liability.” The order concluded: “It does not matter whether the custody was lawful or unlawful, or the exercise of power of control over the person was justified or not; and it is not necessary even to identify the individual officer or officers responsible/concerned.” With its casual dismissal of liability and illegal detention, the Commission flouted the rights to life and redress, enshrined in the Indian Constitution and international law. The 18 families unanimously rejected any potential offer of compensation.

In 2002, the NHRC ordered the Punjab Police to begin to submit affidavits on the identified cases. In 2003, the NHRC again reframed the issues. At its hearing in mid-March 2004, however, the Commission made an about-face and ordered the Punjab government to publish notices in Punjab's daily newspapers, reproducing the CBI lists and the identified people and soliciting claims from families. The order stated: "Even NOK [next of kin] 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."

The notice was published on July 19, 2004, and 1769 families submitted claims. The Commission then began to consider identified cases from the original body of 2097 cases of those who were admittedly in the custody of the police prior to their death and were cremated in the police districts of Amritsar, Majitha, and Tarn Taran, for the purpose of awarding compensation to their next of kin. In November 2004, the NHRC announced a reward of 2.5 lakhs (around $5,500) to 109 families, again, with no admission of liability or inquiry into the facts. The police merely admitted custody of these 109 victims, but maintained that the detainees were killed in the cross-fire after militants attacked police convoys searching for hidden weapons, among other ways.

On October 24, 2005, petitioner Committee for Information and Initiative on Punjab submitted an application to the Commission regarding the Commission’s obligations to investigate cases of extrajudicial executions and justly compensate surviving family members. CIIP’s application focused on the findings and implications of a torture and trauma report independently submitted to the Commission by the Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture. On November 1, Human Rights Watch (HRW) issued a letter to the NHRC, urging the Commission to investigate all violations of the right to life and properly evaluate the PHR/Bellevue report.

On November 11, 2005, in response to the Petitioner’s earlier September 9, 2005 application, the NHRC issued a restrictive order. The November order undermined the victim families' hopes of receiving truth and justice for the murders of their family members and their own human rights violations, as well as hopes that the Commission would honestly address the issues raised in Petitioner CIIP’s October 24 application. The Commission asserted that it would not investigate the illegal cremations. The Commission further criticized the CIIP for raising the issues presented in its September 9, 2005 application. The Commission accused the CIIP of disregarding previous orders, of failing to produce any new material, and of being insensitive to the needs of the victim families. The CIIP, however, was forced to repeat its arguments because the Commission repeatedly failed to address all the issues advanced by the CIIP. Second, the CIIP did present new material, through the torture and trauma study prepared by the Physicians for Human Rights and Bellevue/NYU School of Medicine Program for Survivors of Torture, that directly challenged the Commission’s arbitrary grants of compensation. The Commission stuck by its earlier arbitrary compensation award, confirming that its previous November 11, 2004 order was a final grant of compensation. It ultimately compensated the next of kin of 194 individuals it deemed to have been in police custody, based on police admission, prior to their death.

On October 9, 2006, the NHRC effectively closed the major issues in the case, failing to investigate any cremation cases or record the testimony of a single victim family and relying exclusively on admissions and denials of State agencies to reach its determinations. Based on the Punjab Police’s ability to identify as many as 663 more bodies during the proceedings and an admission by the Solicitor General that procedural requirements were not followed, the NHRC found that the police had not followed the rules, guidelines and procedures required before cremating the dead bodies of the identified persons. The Commission stated that it did not need to consider international precedents because compensation depended on the “facts and circumstances of each case”, which it did not examine. The NHRC awarded Rs. 1.75 lakhs compensation to the next of kin of 1,051 individuals for violation of the “dignity of the dead.” In these cases, the police did not admit custody of the individual prior to his death and cremation. Further, after agreeing to CIIP’s arguments for comprehensive reparations and guarantees of non-repetition, the NHRC concluded that no directions were necessary: “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.” Again, the NHRC clarified that it was not expressing any opinion about culpability. Regarding the remaining 814 unidentified bodies, the NHRC appointed a Commissioner of the rank of a retired High Court Judge for receiving evidence and conducting an inquiry in Amritsar to identify the remaining bodies within eight months.

On October 10, 2006, the NHRC rejected the independent report prepared by some of the world’s most renowned experts on torture and forensic evaluation from Physicians for Human Rights (PHR) and the Bellevue/New York University School of Medicine Program for Survivors of Torture (Bellevue). Ignoring the veracity of the independent report prepared by PHR/Bellevue experts, the NHRC made several false statements attacking the team’s professional credibility. PHR/Bellevue responded to the order in an open letter on December 8, 2006.

The Amritsar Commission submitted its final report in mid-2007. The NHRC responded to the report in its March 2008 order.

On October 18, 2007, Ensaaf and Human Rights Watch released a joint report, "Protecting the Killers: A Policy of Impunity in Punjab, India," that discusses the mass cremations case in extensive detail.

The petitioners continue to insist on knowledge, justice, and reparations. Because the Supreme Court continues to maintain jurisdiction over this case, its ultimate resolution will serve as precedent for victims of mass state crimes all over India and give content to the rights to life and redress.

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