2005/11/11 ORDER
Punjab Mass Cremation Order dated 11 November 2005 BEFORE THE NATIONAL HUMAN RIGHTS COMMISSIONNEW DELHIMisc. Petition No. A1- 9/9 in Reference Case No.1/97/NHRCDATE: 11th November, 2005Reference made by the Supreme Court on Writ Petition No.447/95 and 497/95CORAM:Dr.Justice A.S. Anand, ChairpersonDr.Justice Shivraj V. Patil, MemberJustice Y. Bhaskar Rao, MemberShri R.S. Kalha, MemberORDERThis order will dispose of Miscellaneous Petition A1-9/9 filed by the Committee for Information and Initiative on Punjab (CIIP) on 9th September, 2005. The petition aims at seeking a clarification on "certain basic and/or questions of law germane to the present proceedings". Ms. Indira Jaisingh, learned Senior Advocate, assisted by Mr. Ashok Agrwaal, learned counsel for CIIP appearing in support of the Misc. Petition referred to various paragraphs of the petition as also the written submissions filed on 5.7.2005 on behalf of the CIIP. She submitted that while considering the issues of "unlawful cremations of 2097 bodies" in the three police districts of Amritsar, the Commission shall have to first hold a full-scale inquiry into "manner and method of death" and "pattern of killing" of all those who were "unlawfully cremated as unidentified/unclaimed by the police". Referring to the order of the Commission dated 4.8.1997, she submitted that quantification of compensation could only be made after 'factual foundations' are first laid to fasten the liability, after an inquiry into the "pattern of killings" or the "manner and method" of death of those persons whose bodies were "unlawfully cremated". She submitted that Commission, by interpreting Supreme Court's remit as requiring it to conduct an inquiry only about "unlawful cremations of 2097 bodies" as unclaimed/unidentified by Punjab Police and not about factum of how they had died, was unduly restricting its jurisdiction. It was urged that the Commission had failed to appreciate the import of observations of the Supreme Court to the effect that it shall decide "all issues that may be raised" by learned counsel for the parties before it while considering the scope of inquiry pursuant to the remit and that the issues raised by CIIP to the effect that the Commission should inquire into "pattern of killing" and "manner of death" were required to be decided by the Commission before proceeding further. Learned counsel also submitted that the Commission, which awarded compensation to the NOK of 109 persons on the basis of principles of strict liability vide its order dated 11.11.2004 needs to "clarify its stand with regard to award made vide its order dated 11.11.2004" and to clarify whether the award is by way of "interim relief or final compensation". Mr. C. Gonsalves, learned Sr. Counsel appearing for The Committee for Coordination on Disappearances in Punjab (CCDP) also referred to the written submission filed by the CCDP and urged that the Commission, with a view to find out whether or not there have been violations of human rights, needs to go into the larger question of manner in which deaths occurred and fix responsibility therefor. He also submitted that compensation awarded by the Commission on 11.11.2004 in respect of 109 persons was 'inadequate' and should be enhanced to at least Rs. 10 lakhs for each of the families. Mr. Vahanwati, the learned Solicitor General assisted by Mr.R.S. Suri, learned Sr. Counsel appearing for the State of Punjab in response submitted that the petition filed by the CIIP (A1-9/9) was only a delaying tactic and was aimed at protracting the disposal of the matter. He submitted that all the pleas being raised in the petition (A1-9/9) as also in the written submissions filed on 5.7.2005 had been considered time and again by the Commission and rejected. He emphasized that the orders of the Commission determining the scope of inquiry were explicit and had also been upheld by the Supreme Court vide its order dated 10.9.1998 and asserted that after the order of the Supreme Court and dismissal of the review petition filed by the CIIP, the petition A1-9/9 was an abuse of the proceedings. Learned Solicitor General drew the attention of the Commission to various orders made by the Commission from 4th August, 1997 onwards and in particular to the orders of the Commission dated 13.1.1999, 24.3.1999 and 15.2.2001 to emphasise that the Commission had repeatedly expressed its view that it was required by the remit to only consider 'the issue of violation of human rights emanating from the unlawful cremations of 2097 bodies and to award compensation if it was found that there had been violation of human rights on that account'. He argued that the view taken by the Commission had been upheld by the Supreme Court vide orders dated 10.9.1998 and 11.10.1999 and there was, therefore, no scope to reopen the issue. He pointed out that the petitioner had withheld reference to the orders of the Supreme Court dated 11.10.1999 dismissing the petition of the petitioner against the orders of the Commission dated 13.1.1999 and 15.2.1999 in its petition A1-9/9 as well as in the written submissions filed by it and that 'suppression' was to say the least 'unfortunate'.Learned Solicitor General also submitted that the task of "investigating into the manner of deaths as well as the culpability of the persons involved" had been left by the Supreme Court to the CBI, which was investigating into various cases and therefore, the Supreme Court had confined the remit to the complaints of alleged "unlawful cremations" of 2097 bodies in the three police districts of District Amritsar only and if after an inquiry the Commission came to the conclusion that there had been violation of human rights on that account, to award compensation to the next of kin of those whose bodies had been unlawfully cremated as "unclaimed/unidentified" by the police. Mr. Vahanwati stated that though it is desirable that in matters relating to human rights, a broad approach is taken but the Commission is bound by the limitations of the remit from the Supreme Court and was required to consider the matter as per the Supreme Court order only and could not enlarge the scope of inquiry which stood rightly determined by the Commission by its various orders. In order to consider the petition (A1-9/9) and the submissions made before us, it is necessary to recount, in brief, the proceedings which have taken place before the Supreme Court as also before this Commission till date. At the first instance it would be advantageous to extract some relevant portions from the order of remit by the Supreme Court dated 12.12.1996:"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. 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 inquiry 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. 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."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 Section 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 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."(Emphasis supplied)This Commission, thereafter, heard the parties regarding the scope and ambit of the inquiry before it. It noticed the circumstances under which remit was made in its order of 4th August, 1997. The Commission observed:"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 indicate 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 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 of the Commission was similar thought the purpose is different."
"This 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."(Underlining ours)The Commission held that the remit from the Supreme Court required the Commission to adjudicate on the issue of compensation and that any compensation awarded by the Commission "shall be binding and payable" by the Government. For considering the nature and concept of the award of compensation in such cases, the proceedings of the Commission dated 4th of August, 1997 referred to a range of decisions of the Supreme Court in Neelabati Behera vs. State of Orissa 1993 (2) SCC - 746, D.K. Basu vs. State of West Bengal (9) Scale - 298 and PUCL vs. Union of India (1997) 2JT 311, which had laid down broad parameters of the concept of damages in public law as part of the constitutional regime. The Commission observed:"…… Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right of life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation." The order of the Commission dated 4th August, 1997 defining the scope of enquiry was challenged in the Supreme Court by the Union of India, who also sought "clarification of the order dated 12th December 1996" passed by the Supreme Court. Their Lordships, while upholding the order of the Commission dated 4th August, 1997, once again on 10th September 1998, reiterated: "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."xxx xxx xxx"The investigation by the CBI has been ordered and is being done to determine and establish some other facets, including culpability of those responsible for violation of Human Rights. The remaining issues have been referred to the Commission. They obviously relate to violation of Human Rights. If on a publication of general notice, as proposed by the Commission, which incidentally was also done by the CBI in pursuance of our Order dated 22.7.1996, complaints relating to violation of human rights are filed before the Commission, it will investigate into those complaints in accordance with the provisions of the Act, specially Section 17 thereof and will also take such steps, after enquiry, as are deemed fit by it in the light of the provisions contained in Section 18 of the Act. The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, is not a healthy attitude and does not represent the effort to assist the Commission for a quick conclusion of the proceedings so that if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated. We also do not approve of the conduct of the parties in approaching this Court for clarification of the order of the Commission by way of a Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter." (Emphasis ours)A conjoint reading of the orders of the Supreme Court dated 12.12.1996 and 10.9.1998 shows that from a reading of the Press Note dated January 16, 1995, their Lordships observed:"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."After noticing the contents of the 5th and final report filed by the CBI in the Court on December 9, 1996 concerning the large number of cremations of "unidentified" dead bodies, their Lordships found:"The report indicates that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. 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."Their Lordships then noted:"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 Section 12 and 18 of the Protection of Human Rights Act, 1993."and in their order of 10th September, 1998 referring to the ambit of the inquiry by the Commission, observed:"…if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated."Their Lordships noticed that since this Commission was required to examine and decide the remitted issue in terms of Section 17 and 18 of the Act, lest there be any ambiguity as to whether the Commission could, on being satisfied about the violation of human rights, only make a recommendation for payment of 'interim relief' or award compensation in appropriate cases, they said:"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."This is precisely the manner in which the Commission understood the ambit and scope of the remit and repeatedly said so notwithstanding the submissions of CIIP, repeatedly raised, that the Commission should first examine the "pattern of killing" and the "manner and method of deaths" which led to the cremations. The Commission has observed on earlier occasions also that since the Supreme Court had directed:"…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."and had also, in its order of 10th September, 1998, observed:"The investigation by the CBI has been ordered and is being done to determine and establish some other facets, including culpability of those responsible for violation of Human Rights. The remaining issues have been referred to the Commission. They obviously relate to violation of Human Rights……………it will investigate into those complaints in accordance with the provisions of the Act, specially Section 17 thereof and will also take such steps, after enquiry, as are deemed fit by it in the light of the provisions contained in Section 18 of the Act."Therefore, the view repeatedly reiterated by the Commission regarding the scope of remit and that the investigation into issues of culpability of those responsible was to be done by the CBI is fully in accord with the observations of the Supreme Court.However, inspite of the clear observations of the Supreme Court and the determination of scope of inquiry by the Commission on 4th August, 1997, learned counsel for the CIIP once more raised an issue regarding the 'true' scope of inquiry contending that the scope of inquiry was being 'unduly' restricted by the Commission. On 16th of October, 1998, the contentions of the petitioners once again failed and were rejected. Learned counsel for the CIIP, it appears, once again raised an issue relating to the scope of inquiry. After hearing learned counsel for the parties, the Commission vide its detailed order dated 13th January, 1999 reiterated that the scope of the Commission's jurisdiction was confined to matters relating to the alleged 'unlawful cremation' of the 2097 bodies in the police districts of Amritsar, Tarn Taran and Majitha only and to award compensation under Section 18 of the Act in case it is found during an inquiry under Section 17 that there had been "violation of human rights" of those 2097 who were illegally / unlawfully cremated as "Lawaris". It, accordingly once again rejected the plea raised by the learned counsel for the CIIP to the contrary. It was held that the Commission was required to enquire into violation of human rights as per the remit under the Supreme Court's order dated 12th December, 1996 and took the view that the scope of the subject matter of the inquiry by the Commission pertained to the examination of and grant, in appropriate cases, of relief to such of the legal heirs of 2097 persons, whose bodies were "unlawfully cremated" in the crematoria of the three police districts of Amritsar, Tarn Taran and Majitha, if it was found that their Human Rights had been violated.A perusal of the record reveals that proceedings could not, even thereafter, make any headway as learned counsel for the CIIP on 28th February, 1999 filed a Review Petition seeking re-consideration and review of the orders of the Commission dated 13th January, 1999. While rejecting the review petition dated 28th February, 1999, by its order dated 14th March, 1999, the Commission recounted in para 2 of its order various submissions raised by the learned counsel for CIIP before the Commission during the hearing culminating in its order of 13th January, 1999 and opined that the pleas raised in the review petition were a repetition of the submissions made before the Commission, on earlier occasions, which had not been accepted by the Commission. Quoting from its earlier order of 13th January, 1999, whereby the Commission had rejected the argument raised by the petitioner, it said:"She (Ms Nitya Ramakrishan, Counsel for CIIP) 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 expectations 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……."………….…………."The Commission has bestowed anxious thought to this argument which was articulated in strong and emotional terms. The Commission should not be understood as belittling the seriousness of the question 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 Commission also reproduced some of the paragraphs from the review petition and then observed:"The Commission wishes to say that these are no doubt important issues. If the Commission had, otherwise than through the order of the Supreme Court, jurisdiction to go into the aforesaid issues, the argument that the Commission unfairly restricted its own powers would be meaningful. But the Commission, in view of its statutory limitations, has to draw its jurisdiction from the remit and mandate of the Supreme Court. The question, therefore, is not whether it is desirable that serious issues arising out of what is perceived as a violation of human rights on a mass scale alleged to have occurred in Punjab should be investigated or not. The limited question is whether such is the scope of the present remit of the Commission." The Commission rejected the plea raised by the CIIP to the effect that the task of the Commission was "to ascertain the general pattern in the killings that culminated in the cremations". The prayer of the learned counsel for the petitioner that the Commission could seek clarifications from the Supreme Court if it doubted "the correctness of the stand of the petitioners in regard to broad scope of the remit" was also rejected.The argument of the learned counsel for the CIIP that the observations of the Supreme Court that the Commission shall examine all issues that may be raised by learned counsel for the parties required the Commission to adjudicate on the issue regarding the "pattern of killing" raised by CIIP was rejected. The Commission explained the import of the expression "all the issues which are raised before the Commission by the learned counsel for the parties" in the order of remit and opined:"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."For these very reasons, the argument of Ms. Jaisingh on the same lines, which was rejected on the earlier occasion, cannot be accepted now. Also, on a parity of reasoning, the submission of Ms. Jaisingh that the requirement of determining "factual foundations" (order dated 4.8.1997) implied that the Commission was required to investigate into the 'manner and method of killing' of the persons whose bodies were unlawfully cremated, cannot be accepted. The "factual foundation" which has to be considered concerns the violation of human rights on account of 'unlawful cremations' of the bodies as 'unclaimed/unidentified' and not matters which were entrusted by the Supreme Court to the CBI.After the order of the Commission dated 24.3.1999 rejecting the review petition filed by the CIIP, the petitioner, CIIP, through its counsel on 23-8-1999 filed a Criminal Misc. Petition in the Supreme Court seeking "clarification of scope of reference" made by the Supreme Court to the NHRC vide its order dated 12.12.1996. In that application, history of the case was recounted and many questions were formulated. We may, however, only refer to some of the paragraphs in the application. In paragraph (4) (H), it was said:"Whether, the reference to the NHRC dated 12.12.1996, asking it to adjudicate upon, all the "remaining issues" and/or all "the issues which are raised before the Commission by the learned counsel for the parties" can be interpreted as being restricted to the issue of grant of compensation and related issues? The Indian Constitution guarantees the right to life as a fundamental right. The allegation is that this right was violated on a massive scale, throughout the State and in a systematic manner, over several years. It is also submitted that such a scale and spread of violations could not have been committed at just the local level. Any investigation into the thousands of "disappearances" alleged would have to encompass within itself the systemic aspects of the crime. This would also be necessary for the purpose of coming to a just and fair measure of compensation (which after all is a measure of justice) as a remedy in Public law. This is also necessary in order to keep faith with India's international commitments under the international Covenant and Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966."Paragraph (5) (xi):"Upon entering into the reference the NHRC first invited the parties before it to submit on the scope and terms of the reference made to it by this Court as well as, the nature of the jurisdiction enjoyed by the Commission with respect to the reference. It was the case of the petitioners before the Commission that, for the purposes of the reference, it was a sui generis designate of the Supreme Court with all the powers necessary to complete the inquiry entrusted to it, including those conferred upon it by the Protection of Human Rights Act, 1993. The petitioners pointed out that, the factum of 'violation' having been established, it was the role of the NHRC to delve deeper and to inquire into the implications of this violation. This inquiry would include, besides grant of compensation to the victims, investigation into the systemic aspect of the violation. Elaborating on the 'systemic aspect' of the matter it was, inter-alia, submitted that:a) in themselves the 'cremations' were illegal and violative of the Punjab Police Rules;b) the 'cremations' must be viewed in the context of the fact that over two thousand persons were missing in the district of Amritsar alone;c) such a massive (and systemic) operation could not have been carried out without the knowledge/support of the higher echelons of the State apparatus;d) since the CBI investigation into three cremation grounds discloses a 'pattern' it was necessary to understand and investigate how far the patter extended to the rest of the State;e) it was also necessary to discover the correlation between the complaints about missing persons, police abductions, illegal detentions and false encounters on the one hand and the illegal cremations on the other; f) it was also the mandate of the NHRC to understand the nature of the 'systems failure' in the State structure that permitted such flagrant and widespread human rights violations;g) the NHRC would also need to enumerate the 'steps' necessary to ensure that such violations do not recur". (underlined by us)Paragraph (5) (xxii) (e):"The NHRC is misconceived in attempting to make "cremation" a necessary criterion for a claim before it where it is the allegation that, post abduction by the police, the killing and the cremation was done without the knowledge of the family."Paragraph (5) (xxiv):"By order dated 13.1.1999, the NHRC passed yet another order which is called "ORDER ON THE SCOPE OF INQUIRY". In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to - "award of compensation and other appropriate and related reliefs wherever appropriate") connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon'ble Court. Further, that the scope of the inquiry under this court's direction is limited only to those illegal killings/disappearances that culminated in the cremation of 2097 bodies in the said crematoria namely, the Durgyana Mandir, Amritsar, the Patti Municipal Committee Crematorium and the Tarn Taran Crematorium, located in the above said district of Amritsar."(underlined by us)Paragraph (5) (xxvi) (j):"The NHRC's mandate is based upon the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant for Social and Cultural Rights, adopted by the General Assembly of the UN in 1966. The attempts of a human rights tribunal must always be to ensure State accountability and discourage attempts to win impunity."Paragraph (5) (xxvii):"However, the NHRC rejected the plea for a reconsideration of the said order on the erroneous view that, under the terms of the 'remit' from this Hon'ble Court, it was only referred the "…issue of cremation of 2097 dead bodies as unclaimed bodies by the police in the aforesaid police districts". The NHRC also rejected the prayer asking that it itself seek a clarification from this Hon'ble Court by holding that the view of the petitioner is not "….one of the possible views flowing from the directions of the Apex Court."(underlined by us)Paragraph (5) (xl):"Having failed to persuade the NHRC to reconsider its stand in the lights of its submissions or even to refer matter back to the Supreme Court for clarification, the petitioners have no choice but to move this Court for necessary clarifications. Particularly since, this Court and the NHRC have both held that the Supreme court retains "seisin over the matter"."The prayer made in the petition was:"a) The NHRC has to investigate and give its finding on every complaint of illegal abduction, enforced disappearance, arbitrary execution and disposal of dead bodies carried out through out Punjab;b) The NHRC has to examine the antecedents, circumstances, character, and contexts of such violations to determine the variety of over lapping rights inherent in the rights to life, liberty and equality before the law, which have been destroyed;c) The NHRC has also to determine the multi fold spiral of responsibility that permitted such a systematic practice of crimes against humanity, including the identities of officials and agencies that conducted connived or knew, and did not take measures in their power to prevent, suppress or to report them;d) The inquiry must also identify the victims, i.e. the persons who individually and collectively suffered harm, including physical and mental injury, emotional suffering, economic loss or impairment of their fundamental rights in other ways. The process of identification must also include, apart from family and dependents of the disappeared and killed, such other persons who suffered harm in process of attempting to prevent these offensives and in helping the victims;e) Quantification of compensation and development of other measures of restitution and rehabilitation, including suggestions for ensuring that such crimes are not repeated in the future, must then be evolved based on criteria through the determination of the aforementioned issues."In the petition, the petitioner also referred to certain interim report based upon "a detailed documentation of 838 cases of disappearances' and the inquiry conducted by the CCDP in respect of alleged disappearances in Punjab during the period 1984 to 1995. The application filed by the CIIP on 23-8-1999, was dismissed on 11.10.1999. Their Lordships of the Supreme Court, while rejecting the application, said:"We are not prepared to interfere with the order of the National Human Rights Commission or proceedings which are being conducted there at the instance of this Court. If any fresh instances of killing or disappearance have come to the notice of the applicant, which are not the subject mater of enquiry of the CBI, the applicant may either approach the Court under Article 32 of the Constitution or recourse to any other remedy available under law including a writ petition under Article 226 of the Constitution.Applications for clarification and stay rejected."The petitioner, CIIP, however made no reference to the filing of the application dated 23-8-1999 against the orders of the Commission dated 24th march, 1999 rejecting the review petition filed by CIIP, or the order of the Supreme Court dated 11.10.1999 either in their written submissions filed before the Commission (supra) or in the present petition (A1-9/9). It appears that the petitioner, CIIP, kept back this information from the Commission, which is not only unfortunate, but makes CIIP guilty of suppressio veri . The rejection of the application, filed by the CIIP on 23.8.1999 in the Supreme court (supra), clearly negatived all such pleas as were raised by the petitioner repeatedly before the Commission. Shri Ashok Agrwaal, learned counsel for the CIIP even after the order of the Supreme Court dated 11-10-1999 once again asked for enlarging the scope of enquiry or in the alternative to make a reference to the Supreme Court to seek clarification about the scope of inquiry. No reference was made to the rejection of its application by the Supreme Court, vide order dated 11th October, 1999 even at that point of time. The Commission by its order dated 15th February 2001 rejected the "fresh prayer for reviewing its earlier orders and enlarging the scope of enquiry" or to seek "clarification" from the Supreme Court regarding the scope of the remit. The Commission observed:"So far as the scope of these proceedings emanating from a remit by the Supreme Court is concerned, that is already determined by the earlier orders of the Commission dated 4.8.1997 and 13.1.1999. The order of the Supreme Court dated 10.9.1998 also does not give any indication that the determination of the scope of enquiry by this Commission requires any reconsideration. It is for this reason that earlier by orders dated 24.3.1999 and 8.9.1999 prayers made for reviewing the Commission's order determining the scope of inquiry were rejected. For the same reason a fresh prayer for reviewing the earlier order and enlarging the scope of enquiry by this Commission cannot be accepted.Shri Agrawal then submitted that the Commission may make a reference to the Supreme Court seeking clarification on the scope of enquiry remitted to the Commission by its order dated 12.12.1996. We do not consider it necessary to seek any such clarification since the Commission does not entertain any doubt in that behalf. It is, however, open to the petitioners to seek any such clarification from the Supreme Court, if so advised."(Emphasis ours)On 11th November, 2004, the Commission while awarding compensation in favour of next of kin of 109 persons, who had died while in the custody of the police and whose bodies had been cremated as unidentified/unclaimed, once again reiterated its view about the scope of inquiry before the Commission and recapitulated some of the earlier orders in that behalf. For the detailed reasons given in the order dated 11.11.2004, we are not persuaded to review the order dated 11-11-2004, as regards the amount of compensation also, as pleaded by learned counsel for CCDP. Undeterred by the clear mandate of the remit by the Supreme Court and its orders dated 10th September, 1998 and 11th October, 1999 upholding the consistent view of the Commission, repeatedly expressed, regarding the scope of inquiry, learned counsel for CIIP has now filed this petition (A1-9/9) raising pleas similar to the ones raised by him on various earlier occasions which stood repeatedly rejected. Some of the pleas had been raised even in the application filed by CIIP in the Supreme Court on 23-8-1999 which was rejected by that court on 11-10-1999. There is, thus, force in the submission of the learned Solicitor General that the filing of the petition A1-9/9 is an abuse of the process of the Commission. The petition (A1-9/9) contains no fresh material. It again aims at asking the Commission to enlarge the scope of enquiry overlooking various earlier orders of the Commission more particularly the orders of 4th August, 1997; 13th January, 1999; 24th March, 1999; 15th February, 2001 and 11th November, 2004.We are constrained at this stage to observe that despite the following comments of Their Lordships of the Supreme Court, made in their order dated 10.9.1998, deprecating the attitude of the parties to delay the quick conclusion of the proceedings, "so that, if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated": The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission, which we are constrained to say, is not a healthy attitude and does not represent the effort to assist the Commission for a quick conclusion of the proceedings so that if there have been any violations of human rights, the families affected thereby may be rehabilitated and adequately compensated. We also do not approve of the conduct of the parties in approaching this Court for clarification of the order of the Commission by way of a Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter." (Emphasis ours)The same attitude of CIIP has continued even after 10th September, 1998 and it has continued to file application after application for "clarification"; "reconsideration"; "review" and to "seek clarification from the Supreme Court regarding scope of inquiry". We have already referred to all such petitions and do not wish to repeat the same. The manner in which repeatedly settled issues regarding the scope of inquiry before the Commission have been sought to be reopened by the CIIP, creates an impression that it perhaps is not sensitive to the need for an expeditious grant of compensation and rehabilitation to the affected families. The repeated petitions filed by CIIP have delayed consideration of "grant of compensation to the legal heirs" or next of kin of the deceased whose bodies had been "unlawfully cremated" as "unidentified"/ unclaimed resulting in the delay in their rehabilitation and we disapprove of that attitude.There is one other aspect we wish to comment upon. It is the objectionable and intemperate language used by the learned counsel for the petitioner in this petition A1-9/9. In this connection, we may only refer to some paragraphs of the petition. In para-1(C) at page-12, it is stated:"Whether the Commission can not conclude the present proceedings by restricting its inquiry to the violations of rules pertaining to cremation of unidentified/unclaimed bodies by the police?This proposition has never been aired prior to the hearing in the case on 5.5.2005. It has only to be stated to be rejected."Again, the following statements:"It is respectfully submitted that the petitioner committee cannot agree with this interpretation of mandate by the NHRC. It, further, submits that the order dated 11.11.2004 (unless interpreted as amount to award of an interim compensation) and, the pronouncements by the Commission with respect to the manner it wishes to proceed in the other cases comprising the present proceedings, hit at the core of these proceedings. The stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence."In para 3 of the petition , it is stated:"Without clarifying its stand with respect to the award made vide its order dated 11.11.2004, in subsequent hearings, the NHRC has orally indicated that it is inclined to conclude the proceedings with respect to the "remaining" cases also, on the basis of a severely restricted interpretation of the expression "human rights violation". By this interpretation, the Commission has stated that it would consider its mandate from the Supreme Court discharged by a determination of whether the cremations carried out by the police were in accordance with the rules or not."Not only is it objectionable and not permissible to refer to some observations of the Commission/Bench made during hearing, not based on any court record or proceedings but to say that the 'proposition' of the Commission 'has only to be stated to be rejected' is most uncalled for. The use of the expression "the stand inherent in these two positions, if adopted explicitly, would render the present proceedings completely farcical, besides making a mockery of fifty years of fundamental human rights jurisprudence", is equally objectionable. Learned counsel for the CIIP has permitted himself the liberty of using such objectionable expressions as farcical and mockery - it is, in any event, not for a party to 'reject' a proposition made by the Bench. It is open to it to question it in higher forum, which has not been done. Even, otherwise it is also factually incorrect to say that the 'proposition' had "never been aired prior to the hearing of the case on 5.5.2005". In this connection a reference to various averments made by the petitioner itself in its application filed in the Supreme Court on 23.8.1999, exposes the falsity of the statement. Reference in this connection be made to various paragraphs including paragraph 5 (xxiv) of that petition, wherein interalia it was said : "By order dated 13.1.1999, the NHRC passed yet another order which is called "ORDER ON THE SCOPE OF INQUIRY". In a virtual reversal of the position enunciated by the Commission in its order dated 4.8.1997, the NHRC held that the scope of the inquiry referred to it by the Supreme Court was restricted to the issues (those too restricted to - "award of compensation and other appropriate and related reliefs wherever appropriate") connected with the cremation of dead bodies in the three crematoria located in the district of Amritsar, which were the subject matter of the CBI report to this Hon'ble Court."It would be relevant in this connection to also refer to paragraph 8 of the order of the Commission dated 13.1.1999, wherein it was observed:"The Commission desires to point out that the initial burden of establishing that the cremations done by the police were so done in accordance with the procedures prescribed by law in that behalf rests upon the authorities of the State. The State Government shall, therefore, cause to be filed on or before 10th March, 1999 before the Commission a list of all the cremations done by the police in respect of 'unclaimed/unidentified bodies' in the crematoria of Police Districts of Amritsar, Majitha and Tarn Taran between June, 1984 and December, 1994. The information shall be furnished in a chronological order crematoria-wise. The State Government shall also state whether in respect of each of those cremations the rules for the time being in force regulating cremations of unclaimed/unidentified bodies have been followed by the police. However, further details of the compliance with the rules and the consequence of their compliance or non-compliance shall be examined at the appropriate stage later." Thus, making such factually incorrect statements do no credit to the petitioner. Besides, it is unknown to legal jurisprudence that the Commission be asked by a party to litigation that it needs to, before proceeding further, "clarify its stand with respect to the award made vide its order dated 11th November, 2004. The order of 11th November, 2004 is clear. A short reference to the following observations in the order dated 11.11.2004 would show that no "clarification" of any "stand" of the Commission is required. It only requires the order to be read carefully and understood. "It, therefore, follows that this Commission would be totally justified and, in the facts and circumstances of the case, duty bound and obliged to redress the grievances of the next of kin of the deceased by award of monetary compensation for infringement of the indefeasible right to life of deceased and apply balm to their wounds. This claim, as has been noticed in an earlier part of the order is based on the principle of strict liability. The award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is an appropriate remedy available in public law jurisdiction for repairing the public wrong. The NOK of the deceased, therefore, must receive the amount of compensation from the State of Punjab which is vicariously liable and cannot be absolved of 'its responsibility of safe keeping of the citizen in its custody. We accordingly hold the State of Punjab liable to make monetary amends for the infringement of the right to life of the deceased, who were in the custody of its police prior to their death by paying compensation to NOK of the deceased. The second question is answered accordingly."xxx xxx xxxxxx xxx xxx"It is clarified that while granting the monetary relief as aforesaid, we are not expressing any opinion about the culpability or otherwise of any police officer or officials, nor shall we be understood to have expressed any opinion about the responsibility of any of the officials of the state for infringing the right to life of the deceased by any act of omission or commission, lest it should prejudice any of the parties in the investigation being carried out by the CBI to determine the culpability under orders of the Hon'ble Supreme Court. In fact, the grant of this monetary relief by us is without prejudice to the rights of the parties."The CIIP did not question the award / order of the Commission dated 11th November, 2004. Various proceedings which took place after 11-11-2004, show that not only the State of Punjab honoured the award, as indeed it was duty bound to because of the clear direction of the Supreme Court in its order of remit to the effect that "any compensation awarded by the Commission shall be binding and payable" but the beneficiaries, barring a few, have already received the compensation and accepted the order dated 11-11-2004. We, therefore, record our strong disapproval against the intemperate and objectionable language used by the petitioner and hope that they shall be careful in future. We leave the matter at that and say no more on this aspect.As a result of the above discussion we reject and dismiss the petition (A1 - 9/9) filed by CIIP. (A.S. Anand) Chairperson(Shivaraj V. Patil) (Y. Bhaskar Rao) (R.S. Kalha) Member Member Member
