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Too Much of Rights Abuse: It's a Lofty Call for NHRC


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India’s human rights abuses exceed even those of nations who have regularly hit the headlines for their violations of such rights. Augusto Pinochet, ex-Chilean dictator who seized power in 1973 and kept the country under military rule for the next sixteen years, is well known for his crimes against his people and the laws he enacted to protect himself and his henchmen. The Amnesty Law of 1978 protected persons accused of serious human rights crimes from prosecution. Nor could misuse of Anti-Terrorist Law of 1984 be challenged in a regular court. Only military tribunals had jurisdiction is such matters. The security forces in other words, were effectively insulated from the process of accountability with a servile judiciary conniving at this miscarriage of justice. Military tribunals were used to prosecute and convict ‘enemies of the State’ who were denied regular safeguards of law.

With the restoration of partial democracy in 1989 and the establishment of the Chilean National Commission on Truth and Reconciliation established by President Patricio Aylwin, a 1991 report of the Commission revealed that over 2100 Chilean citizens had been executed or had disappeared during the military regime. (It is worth noting that the CBI’s report to the Indian Supreme Court places the number of bodies secretly cremated by Punjab’s security forces in just one district of the state at 2097.)

The reforms that followed the publication of this report “picked up momentum after the second democratic election of Eduardo Frei in December 1993. Slowly, the judiciary began to pick up courage against the forces of impunity. In September 1994, two Santiago Court of Appeals judges applied principles of international law to strike down the 1978 Amnesty Law. They said that Chile’s adoption of the Geneva Convention and ICPR surpassed in its obligations the limitations of the domestic statutes. This decision became possible because of the 1991 Constitutional amendment that placed international obligations above domestic law.”

Pinochet, however, was not quite through with Chile. Despite the enormous power he still wielded as Commander-in-Chief of the Army, he also had himself appointed a Senator-for-Life to get immunity under Chile's Amnesty Law. But his past was catching up. Chile’s Supreme Court revoked his immunity in August, 2000 and he now faces prosecution in 171 criminal complaints filed by the relatives of his regime’s victims. The support of the military, the array of lawyers assembled by him, and the medical grounds he keeps citing will be unable to save him from the due process of justice.

In Argentina, under General Videla’s dictatorship established in March 1976, approximately 30,000 dissenters ‘disappeared’. But the totalitarian state was unable to deal with the vigil organized by the mothers of those who had disappeared. Known as Mothers of the Plaza De Mayo, their determination to keep alive the memory of their near ones forced Argentinean society - no less self-centered than India’s - to respond to their call and in the end these ‘Memory Women’, who would neither take money, nor other inducements, nor yield to threats but only wanted to know who took their relatives away and why, finally forced the military dictatorship into a corner where it collapsed under the weight of its own excesses.

In the African State of Rwanda, the International Criminal Tribunal based in Arusha, is prosecuting the country’s former key leaders for crimes committed against their own people in 1994-95. Altogether 100,000 suspects accused of genocidal crimes are in jail awaiting trial and punishment. While in Cambodia, a quarter of a century after the horrific genocide conducted under the gaze of the Khmer Rouge, “Extraordinary Chambers” have been established to bring guilty leaders to justice through a constructive Cambodian and international legal collaboration aimed at underscoring the paramountcy of human rights.

Compare the history of human rights in these countries - from careering downhill to the journey back to a just society - with the disgraceful and disgusting deeds which go unpunished in India’s ostensibly democratic society. The ultimate tragedy, of course, will be if our highest Courts - and statutory bodies like the National Human Rights Commission - start compromising with the majesty of the law they represent. At present the public looks to them for justice which it cannot get from India’s increasingly corrupt governments. Will it be wise to further alienate large segments of already disenchanted Indians ?

Even the Supreme Court’s own moves, from its prompt response to Khalra’s abduction in 1995 to its direction to the CBI and the NHRC, have - with the passage of time - shown a disconcerting indifference to bringing to justice those guilty of these crimes. When the CCDP failed to persuade the NHRC to review its order on the scope and modality of its inquiry into the disappearances and secret cremations, it moved the Supreme Court once again with the plea that the inquiry should not be confined to the limited area the Commission was insistent on, because of the evidence of illegal cremations the Committee of Disappearances had collected from six other districts in Punjab. But the Supreme Court rejected the petition in October, 1999; the same Court which four years earlier had taken such a principled stand on these inhuman crimes.

What was the nature of the new evidence and why was the Supreme Court disinterested in it ? The evidence from these six districts - other than Amritsar - proved that 934 bodies labelled as unidentified had been burnt there. In the Committee’s own words it had

“also completed a survey of 838 Incident-Reports of illegal abductions leading to disappearances from all over Punjab.

The survey showed that in 222 of the 838 incidents, one or more members of the families either committed suicide in despair or died under trauma. In 500 out of 838, family members reported morbid psychological effects, including clinical psychiatric symptoms. In 224 cases, the security forces had destroyed, damaged and confiscated family properties. In 290 cases of abductions, the persons who eventually disappeared had been seen in police custody. In 129 cases, the surviving relatives possessed sensitive information on 390 other incidents of enforced disappearance.

In 759 out of 836 incidents, the family members of the disappeared persons had also suffered brutal torture in police custody. The relatives of 149 victims incurred legal expenses to move the Punjab and Haryana High Court with petitions for writs of habeas corpus. Most of their petitions were dismissed following routine denials by the Punjab officials.”

Aren’t the above facts gruesome enough to rate the highest priority with the Supreme Court and the NHRC ? Leave aside the perverse delight the police seem to derive from torturing and painfully putting their victims to death (the detailed reports collected from Punjab make chilling reading), isn’t the trauma and psychological toll their disappearance takes of their families of any interest to these august institutions ? Or does the Court’s interest depend on who sits on the bench, and wanes with the change of justices ?

Whatever the reason, the thing to remember is that peoples’ memories are long. And as the Chilean, Argentinean, Rwandan and Cambodian examples show it does not matter how many years elapse before justice is finally delivered. If the paramountcy of law can prevail in those countries after decades of waiting, India too should be able to do it. It too should be able to bring to trial and punish those responsible for crimes against humanity, even though at present the soft and unfocused Indian state lionises such men whose hands are awash with the blood of thousands of their innocent countrymen.

Why do Indians fawn on such killer policemen who do not enforce laws but break them with their wilful ways. As Padam Rosha, whose distinguished career in the police spanned some of the most difficult postings, puts it: “A culture is being built up in India which denigrates the ‘due process’ of law as piddling constraints and glorifies officers who use force to teach lessons. But the use of force by the State, which is not sanctioned by law, can never carry the aura or justice, and this loss of legal and moral underpinning will further alienate people as the police depend on higher levels of force in dealing with them.”

How true ! In the final count the Courts of Justice and the National Human Rights Commission can either be bulwarks against wayward governments and their hitmen in uniform, or they can fall by the wayside as many other institutions in India have already done. Hopefully they will stand up to their lofty calling.

National Human Rights Commission Turns Blind Eye To Sikh Killings

The proceedings of the National Human Rights Commission’s full bench on February 15 in New Delhi could grievously damage the credibility and moral authority of the nation’s premier rights body. Presided over by its Chairman, Justice J. S. Verma, former Chief Justice of the Supreme Court, the bench, acting on a reference by the Supreme Court, rejected arguments which could have revealed the true dimensions of the worst genocide in independent India.

By refusing to look at extrajudicial killings - despite overwhelming evidence of indiscriminate executions by the state’s security forces - which took place in all districts of Punjab instead of just one, it has shaken the confidence many people had placed in it.

It also rejected the plea to ask the Supreme Court for futher elaboration of its mandate, even though the Court’s original order of December 12, 1996 allows the Commission to come back for clarifications or difficulties.

Its stand on enforced disappearances, arbitrary executions and secret cremations in Punjab reinforces the view of those who maintain that it is meant to provide badly-needed respectability to India’s abysmal human rights record, and not to expose and punish those who think nothing of denying Indians even the right to life. This impression was again reinforced on February 15 when the Commission’s unchanging stand dampened hopes of families whose relatives had become victims of police brutalities on Punjab’s killing fields.

No doubt these hearings will continue in the months ahead, just as they have sluggishly continued for over four years which have passed since the Supreme Court first asked the NHRC to determine all the issues arising from a Central Bureau of Investigation’s report to the Court on enforced disappearances and secret cremations by Punjab’s security forces from 1984 to 1994.

Credit for bringing these crimes to the Supreme Court’s attention goes to Jaswant Singh Khalra, a tireless human rights worker from Amritsar, and a group called the Committee for Information and Initiative on Punjab. (CIIP). Khalra had in a press note on January 16, 1995 accused the state’s security agencies of secretly cremating thousands of dead bodies under the label of unidentified. He showed that those cremated were earlier picked up by the police to ascertain their separatist sympathies. Khalra’s disclosures were supported by data gathered from cremation grounds’ registers for the purchase of firewood, and also from the Registrar of Births and Deaths.

With Punjab’s High Court rejecting Khalra’s petition for a comprehensive enquiry into police killings and cremations, the CIIP moved the Supreme Court for “an impartial and independent investigation into the systematic and sustained policy of extrajudicial executions and disposal of dead bodies”.

The Court instituted two CBI enquiries after Khalra himself was abducted by armed policemen from his Amritsar home on September 6 of the same year. Despite widespread outrage, protests by Indian and overseas human rights organizations, and assurances by Punjab’s Advocate General, Khalra was never seen again nor was his body recovered which is what Ajit Singh Sandhu, Taran Taran’s Senior Superintendent of Police had predicted !

Sandhu had warned Khalra that unless he “ceased his involvement in the matter [of investigating police excesses] he would also become an unidentified body”, which in fact this courageous man did become.

Of the two inquiries assigned to the CBI, the first was to ascertain Khalra’s own disappearance, the second to establish the substance of Khalra’s accusations about “a gory tale of human rights violations”.

In the first the CBI held nine officers of the Punjab police responsible for Khalra’s abduction; in the second it fully supported Khalra’s allegations. The CBI’s investigations revealed 2097 illegal cremations in Amritsar district alone of which 585 cremations were fully identified, 274 partially identified and 1238 unidentified. The disclosure of these “flagrant violations of human rights on a mass scale” led the Supreme Court to refer the matter to the NHRC.

With the report of India’s key investigating agency before it, and a clear directive from the nation’s highest Court in its hands, how did the National Human Rights Commission go about its mandate? According to the Committee for Coordination on Disappearances in Punjab (CCDP) “four years after the NHRC received the mandate the matter, as we must report in great anguish, is on the brink of a dishonorable conclusion.

The proceedings have been characterized by an atmosphere of encouragement of impunity and seeming collaboration with the very same forces of injustice and violence that gave rise to the original need to move the Supreme Court. On January 13, 1999, after two years of wrangling on the preliminary issues, the Commission capitulated before the sources of impunity and decided to limit the inquiry to only 2097 cases of cremations in Amritsar district mentioned in the CBI’s report. With the crucial emphasis on cremations, the Commission deliberately shifted the enquiry from its basis in the fundamental human rights law to limited technical issues. More than anything else, the requirement that a complaint of enforced disappearance to qualify attention should first demonstrate cremation was downright absurd.

Further, by limiting the inquiry to incidents of cremation in Amritsar listed in the CBI’s report, the Commission discriminated against identically situated victims of atrocities in other parts of Punjab. It refused to extend the scope of the inquiry to cover all incidents of police abduction, forced disappearance, custodial executions and illegal disposal of dead bodies by cremation and other ways, throughout the state of Punjab.”

This curious stand of the Commission not only degrades the universality of the right to life under Article 21 of the Constitution, it also vitiates the principal of equality before the law under Article 14. According to Ram Narayan Kumar, Convenor of the CCDP, despite all the evidence they could muster to persuade the NHRC to change its stand “the Commission remained unmoved”. This was again evident on February 15.

Kumar maintains that with a former Chief Justice of the Supreme Court at the head of it, the NHRC should know “that all international legal instruments define enforced disappearance as an ongoing crime. The main instruments being the Declaration on the Protection of all Persons from Enforced Disappearance, 1992, the Inter-American Convention on the Forced Disappearance of Persons, 1994, the International Draft Convention on the Protection of All Persons from Forced Disappearance, 1998, and Article 7 (i) of the International Criminal Court Statute.”

Aside from internationally accepted laws framed to deal with such crimes, the Indian judiciary too is invested with wide powers to deal with violations against a citizen’s person and prerogatives. As one observer put it in context of forced disappearances and mass cremations in Punjab:

“In the beginning all seemed well The Commission’s August 4,1997 order on the preliminary issues said that it was a sui generis designate of the Supreme Court under Article 32 and its powers to fulfill the reference will not be constrained by any limiting provision of the Protection of Human Rights Act, 1993. In September 1998, the Supreme Court upheld the Commission’s understanding of its powers in the matter against the Union government’s objections.

Four months after receiving this endorsement the NHRC capitulated before the forces of impunity and imposed technical, territorial and temporal restrictions on the scope of the inquiry, odious to the meaning of Article 32.”

What happened in those four months? Why did the NHRC climb down from its resolve to exercise its powers to the fullest, to the level of quibbling over the scope of its enquiry, and which crimes it would look into and which it wouldn’t ? Was it influenced by the Government of India through its Home Ministry which has over the years not only openly approved state-sponsored police brutalities in Punjab but has continued to give the police ever greater powers which were used with stunning savagery and impunity.

Repeated amendments of the Constitution provide evidence of the extent to which the statute was bent to bring Punjab to its knees, with 30 Punjab-related Acts, Constitutional Amendments and Ordnances promulgated between 1983 and 1989. Why? Because a small percentage of the State’s population was militating against the excesses of the government - including its savaging of the Golden Temple - New Delhi felt it was time to break the will of Punjab’s people !

The separatist movement was exaggerated beyond belief and the enforced disappearances, arbitrary executions, and secret cremations became a part of the pogrom that followed.

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