Despite glaring deficiencies in its decade-long inquiry into the Punjab mass cremations case, the most recent order of India’s National Human Rights Commission[1] represents a step forward in the lengthy proceedings and should be recognised as such. Misguided attempts by some civil society organisations to reopen issues that have been conclusively determined only serve to stagnate the issues and further reduce the likelihood that victims and their families will receive compensation and justice. 

The violent Sikh separatist movement in Punjab during the 1980s triggered an aggressive counterinsurgency operation during which state security forces were responsible for the arbitrary detention, torture, execution and cremation of thousands of Sikhs.[2]  It was not until 1995, when evidence of mass secret cremations by security forces came to light, that the Indian Supreme Court was petitioned[3] to order an inquiry into the extrajudicial executions that occurred in Punjab during the insurgency.[4] 

Since then, responsibility for investigating these crimes has primarily rested with the NHRC, which was vested with broad jurisdiction to “determine all the issues which are raised before [it]”.[5] However, the NHRC has drawn criticism for its prolonged proceedings, flawed methodology and self-restricted jurisdiction.[6] Its failure to apply basic human rights standards to the conduct of the investigation resulted in victims’ families and witnesses being precluded from giving testimony and unchallenged evidence from the Punjab police being given far greater weight than it deserved.[7]  

Despite its broad mandate to determine all issues relating to the human rights violations that occurred throughout Punjab, the NHRC decided early on to limit its investigation to just 2097 unlawful cremations that took place in the district of Amritsar.[8] It also eschewed direct liability of individual perpetrators in favour of making the state strictly liable for violations of the right to life[9] and violations of the dignity of the dead. In doing so, the NHRC served to perpetuate a culture of impunity for those actually responsible for abuses. 

Bhalla Commission 

By October 2006, the NHRC had concluded most of the main issues in its investigation and delegated the task of identifying the remaining unknown 814 cremation victims to a secondary commission.[10] The new commission was headed by retired Punjab and Haryana High Court judge, Justice K.S. Bhalla, and given a nine month timeframe in which to carry out its mandate. As with the NHRC investigation before it, the Bhalla Commission was plagued with accusations of partiality, arbitrariness and incompetence.[11] It presented its report to the NHRC on 30 June 2007 with 657 victims still unidentified.  

NHRC’s 2008 order 

In response to the Bhalla Commission’s report, the NHRC handed down an order on 25 February 2008 that justifiably criticised the commission’s arbitrary procedures and erroneous approach and recognised that it had adversely affected the participation rights and compensation entitlements of victims’ families.[12] For example, Justice Bhalla only allowed 70 persons to take part in the inquiry, despite the fact that 219 had requested permission to participate. The commissioner reasoned that 11 of these persons had already been granted relief and that 138 did not follow the proper procedure for filing a claim and were therefore precluded from claiming relief in the Bhalla Commission’s inquiry. [13] The NHRC did not agree and rightly held that “[t]he non filing of a claim could not … obliterate or efface the right to compensation”.[14] 

Similarly, the NHRC criticised the Bhalla Commission for only accepting testimony from witnesses who had actually seen the victim’s dead body or cremation, and for refusing to consider evidence that only demonstrated police custody of a victim prior to his or her death. The NHRC held that circumstantial evidence is “crucial” for identifying victims in this case where killings and cremations were carried out in secret.[15]  

Also in its February 2008 order, the NHRC decided to appoint a three-member committee to determine the identities of the remaining 657 cremation victims. The committee’s ability to consider both firsthand and circumstantial evidence from victims’ families across the state of Punjab will substantially improve the likelihood that victims will be correctly identified and next of kin rightfully compensated.  

The NHRC should also be commended for its insistence that the committee use a comprehensive incident report form to solicit claims from all over Punjab and its declaration that “[a] compact system shall have to be put in place and a well defined methodology shall have to be adopted”.[16] 

Recommendations 

Despite the encouraging direction of the NHRC’s latest order, some groups have unwisely maintained focus on the NHRC’s prior shortcomings and continue to criticise it for relying on the state to investigate and prosecute. It is not practical to expect the process to be entirely independent, particularly as the state is responsible for enforcing any judgments and awards of compensation. Nor is it constructive to dwell on aspects of the case that have been concluded when there is an opportunity to influence the current and future direction of the inquiry. SAHRDC therefore proposes the following three recommendations for the NHRC’s consideration in order to further the investigation and move forward with reparation and reconciliation. 

1. Investigate a pattern of extrajudical killings, mass cremations and disappearances throughout Punjab                      

The NHRC’s continued limitation of the scope of its inquiry to illegal cremations carried out in Amritsar is disappointing. As noted above, its decision to allow participation of next of kin from across Punjab to assist with the identification of the remaining 657 cremation victims is commendable, but it must be stressed that the Supreme Court mandated the NHRC to “determine all the issues which are raised before the Commission”[17] which includes the disappearances, extrajudicial killings and mass cremations that occurred in the rest of Punjab.  

Once the data from the incident report forms is collected and collated, we urge the NHRC to acknowledge a pattern of widespread abuse and expand its scope to encompass the violation of rights throughout Punjab. Not only so that all those rightfully entitled are compensated for their kin’s illegal cremation, but so that those institutions and individuals criminally responsible for any and all rights violations across the region are held accountable. 

2. Ensure the non-recurrence of systematic rights violations  

In its order dated 9 October 2006, the NHRC recognised that “[i]t is an obligation of every civilized State to ensure that its acts, which have been found to be violative of humanitarian laws and/or which impinge on human rights of the citizens, do not reoccur…”.[18] Compensation without justice is not sufficient to satisfy a victim’s right to an effective remedy. Ending impunity is essential to ensure that the violence and violations that took place in Punjab do not recur. 

International law obliges states to bring perpetrators of serious crimes to justice,[19] and this requires identification of those individuals who bear the greatest responsibility for such crimes. Under the doctrine of command responsibility, superiors will be held criminally liable for crimes committed by their subordinates where the superior ordered the commission of the crime, or knew about its commission and failed to prevent it.[20]  

Justice for victims and victims’ families is the foundation upon which reparations are built. It follows that access to information, compensation, rehabilitation and freedom from fear builds confidence in the state and goes a long way to ensuring non-recurrence of systematic rights violations.  

3. Provide psychological rehabilitation to victims’ families 

Also in its order of 9 October 2006, the NHRC stated that it had “no doubt that the State of Punjab would offer medical/psychological assistance to a member/members of any such family which has suffered as a result of the tragedy, who approaches it, at State expense so that the healing process started by it becomes meaningful”.[21] The NHRC’s faith in the state of Punjab has proven misplaced, as a system of reparations that includes counselling for victims’ families has not been established.[22] 

The NHRC is obliged to play an active role in securing widely available, competent and comprehensive psychological rehabilitation facilities accessible to all those who may require them.  

Conclusion 

The NHRC’s most recent order in the Punjab mass cremations case represents an improved approach to its investigation and a greater likelihood that more cremation victims will be identified. SAHRDC hopes the NHRC will continue to improve its methodology and implement a system of comprehensive reparations for all of Punjab.

 Human Rights Features