Human rights
Justice Bhalla’s mandate is limited
by Ram Narayan Kumar
THE matter of enforced disappearances leading to mass cremations in Punjab epitomises a unique combination of the legal process, under the fundamental rights jurisdiction of the Supreme Court, and a rigorous documentation of facts of human rights abuses, which the human rights community involved with the case has managed to develop.
Yet, the objectives of truth, justice and reparation remain unrealised. Though the facts of abuses have been established and partially acknowledged, the state agencies have found ways to evade the binding obligations of justice under the law and the imperatives of reform.
The matter has been pending before the National Human Rights Commission for a decade after the Supreme Court, in December 1996, mandated it to adjudicate all the issues and to award compensation following a report by the CBI, which disclosed “flagrant violations of human rights on a mass scale” and 2097 illegal cremations at three sites in Amritsar district alone.
After 10 years of litigation, exhausted mainly in futile legal wrangling and denials by the state agencies, the NHRC has effectively disposed of the matter with its October 10, 2006 order that awards arbitrary sums of monetary compensation to 1,245 victims.
The order also appoints Justice K. S. Bhalla, a retired judge of the Punjab and Haryana High Court, to ascertain, over the next eight months, the identities of the remaining persons cremated in the district. It is ironical that the NHRC should appoint a retired judge of the Punjab and Haryana High Court to do over the next eight months what it has not been able to accomplish over a decade, that too, without providing clear methodological principles and the necessary powers of discovery.
The appointment is ironical also for the reason that in course of a decade-long engagement with the matter, the NHRC has failed to record the testimony of a single victim family. It refused to go into the systemic patterns of violations and declined to investigate the issues of rights to life and liberty.
Yet, the NHRC’s October 2006 order affirms faith that Punjab and the Union Government will take appropriate steps to ensure that violations do not recur. How can there be a guarantee of non-recurrence when there is no knowledge of what occurred?
Despite this history, this writer will appear before the Justice Bhalla Commission at Amritsar on January 2, 2007 and try to assist it with information and evidence that it will need to resolve the remaining unidentified cremations listed in the CBI’s report.
The state government officials are on the record saying that more than 300 “militant collaborators” who had publicly been killed and cremated got rehabilitated under assumed identities and that they will not reveal further details on how and where these forgeries were actually affected or who were the actual persons killed and burnt in lieu of such “militant collaborators”.
The requirements to fix the true identities of remaining anonymous cremations carried out in three crematoria of Amritsar district oblige the Bhalla Commission to call for information on these admitted forgeries and to clearly determine the cremation grounds at which they were actually carried out.
Other source of information that this commission should avail itself of is in the incident reports of such police abductions and enforced disappearances that occurred outside Amritsar. This writer is able to clearly demonstrate that the police agencies in Punjab operated without respect for the norms and regulations of their territorial jurisdictions and that persons abducted and disappeared in one district were often confined, interrogated and killed in other districts. Many who belonged to Amritsar were abducted, killed and cremated outside Amritsar.
Likewise, many shown to have been cremated as unidentified bodies in the crematoria of Amritsar came from other areas. The task of resolving their true identities requires the commission to investigate and analyse all reports of police abductions resulting in enforced disappearances throughout Punjab and we will be able to assist the commission with methodology and the field work if it is able to take on the challenge.
This writer must also remind the Commission about the cases of 18 persons who Punjab had, in January 2000, categorised as qualifying to receive compensation without admitting liability or the merits of their claims. The families of all the 18 had rejected the offer on the ground that it came without the admission of wrongdoing and was fixed without any reference to the fundamental rights violations they had suffered. These 18 cases were out of a total of 88 claims that the NHRC had received in response to a public notice inviting complaints. Their claims and their objections to the terms of compensation being offered have remained unresolved.
The expert literature on the subject is unanimous in the view that for the concept of reparation to be meaningful, victims must be able to return to the state of being, as close as possible, at which they were before violations occurred. They must receive compensation for physical and mental injury, including lost opportunities, emotional and moral harm and legal costs. Their rehabilitation must include medical care, including psychological and psychiatric treatment.
Justice Bhalla’s mandate is limited and he cannot be blamed for the perversions of the process that have interfered against the case becoming an experiment in social reconciliation through a judicial affirmation of accountability. However, Justice Bhalla can make a difference if he is able to approach his limited but important mandate with attention to the principles and the potential of the case, with the Supreme Court mandating the NHRC to marshal the powers of Article 32 to “forge new tools” in order to do “complete justice”.
If this opportunity is not to be frittered away, under the culture of impunity that prevails, it is also important that the civil society in Punjab, across social divisions, gets involved in developing a climate of receptive dialogue and informed public opinion on the issues at stake.
The writer is a human rights researcher.
Justice Bhalla’s mandate is limited
by Ram Narayan Kumar
THE matter of enforced disappearances leading to mass cremations in Punjab epitomises a unique combination of the legal process, under the fundamental rights jurisdiction of the Supreme Court, and a rigorous documentation of facts of human rights abuses, which the human rights community involved with the case has managed to develop.
Yet, the objectives of truth, justice and reparation remain unrealised. Though the facts of abuses have been established and partially acknowledged, the state agencies have found ways to evade the binding obligations of justice under the law and the imperatives of reform.
The matter has been pending before the National Human Rights Commission for a decade after the Supreme Court, in December 1996, mandated it to adjudicate all the issues and to award compensation following a report by the CBI, which disclosed “flagrant violations of human rights on a mass scale” and 2097 illegal cremations at three sites in Amritsar district alone.
After 10 years of litigation, exhausted mainly in futile legal wrangling and denials by the state agencies, the NHRC has effectively disposed of the matter with its October 10, 2006 order that awards arbitrary sums of monetary compensation to 1,245 victims.
The order also appoints Justice K. S. Bhalla, a retired judge of the Punjab and Haryana High Court, to ascertain, over the next eight months, the identities of the remaining persons cremated in the district. It is ironical that the NHRC should appoint a retired judge of the Punjab and Haryana High Court to do over the next eight months what it has not been able to accomplish over a decade, that too, without providing clear methodological principles and the necessary powers of discovery.
The appointment is ironical also for the reason that in course of a decade-long engagement with the matter, the NHRC has failed to record the testimony of a single victim family. It refused to go into the systemic patterns of violations and declined to investigate the issues of rights to life and liberty.
Yet, the NHRC’s October 2006 order affirms faith that Punjab and the Union Government will take appropriate steps to ensure that violations do not recur. How can there be a guarantee of non-recurrence when there is no knowledge of what occurred?
Despite this history, this writer will appear before the Justice Bhalla Commission at Amritsar on January 2, 2007 and try to assist it with information and evidence that it will need to resolve the remaining unidentified cremations listed in the CBI’s report.
The state government officials are on the record saying that more than 300 “militant collaborators” who had publicly been killed and cremated got rehabilitated under assumed identities and that they will not reveal further details on how and where these forgeries were actually affected or who were the actual persons killed and burnt in lieu of such “militant collaborators”.
The requirements to fix the true identities of remaining anonymous cremations carried out in three crematoria of Amritsar district oblige the Bhalla Commission to call for information on these admitted forgeries and to clearly determine the cremation grounds at which they were actually carried out.
Other source of information that this commission should avail itself of is in the incident reports of such police abductions and enforced disappearances that occurred outside Amritsar. This writer is able to clearly demonstrate that the police agencies in Punjab operated without respect for the norms and regulations of their territorial jurisdictions and that persons abducted and disappeared in one district were often confined, interrogated and killed in other districts. Many who belonged to Amritsar were abducted, killed and cremated outside Amritsar.
Likewise, many shown to have been cremated as unidentified bodies in the crematoria of Amritsar came from other areas. The task of resolving their true identities requires the commission to investigate and analyse all reports of police abductions resulting in enforced disappearances throughout Punjab and we will be able to assist the commission with methodology and the field work if it is able to take on the challenge.
This writer must also remind the Commission about the cases of 18 persons who Punjab had, in January 2000, categorised as qualifying to receive compensation without admitting liability or the merits of their claims. The families of all the 18 had rejected the offer on the ground that it came without the admission of wrongdoing and was fixed without any reference to the fundamental rights violations they had suffered. These 18 cases were out of a total of 88 claims that the NHRC had received in response to a public notice inviting complaints. Their claims and their objections to the terms of compensation being offered have remained unresolved.
The expert literature on the subject is unanimous in the view that for the concept of reparation to be meaningful, victims must be able to return to the state of being, as close as possible, at which they were before violations occurred. They must receive compensation for physical and mental injury, including lost opportunities, emotional and moral harm and legal costs. Their rehabilitation must include medical care, including psychological and psychiatric treatment.
Justice Bhalla’s mandate is limited and he cannot be blamed for the perversions of the process that have interfered against the case becoming an experiment in social reconciliation through a judicial affirmation of accountability. However, Justice Bhalla can make a difference if he is able to approach his limited but important mandate with attention to the principles and the potential of the case, with the Supreme Court mandating the NHRC to marshal the powers of Article 32 to “forge new tools” in order to do “complete justice”.
If this opportunity is not to be frittered away, under the culture of impunity that prevails, it is also important that the civil society in Punjab, across social divisions, gets involved in developing a climate of receptive dialogue and informed public opinion on the issues at stake.
The writer is a human rights researcher.
Labels: Human rights
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