the cremation cases..indians murder thousands of sikhs

8/9/2019 The Cremation Cases..Indians Murder Thousands of Sikhs

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The Punjab Mass Cremations Case:India Burning the Rule of Law

January 2007 iensw&


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The Punjab MassCremations Case:

India Burning theRule of LawThe Punjab Mass Cremations Caserepresents the best opportunity tochallenge institutionalized impunityin India. Its ultimate resolution willset precedent in India on the redressof state-sponsored human rightsviolations.

Impunity occurs when perpetrators of hu-man rights violations are not held account-able by the state for their actions. Impunityhas been rampant in Punjab, where in evenwell-documented abuse cases, there is nopolitical will to prosecute because of statesupport for the abuses and the protectionof high-ranking ofcials. Furthermore, India

has several provisions in its laws aimed atshielding its military personnel and civilianofcials from legal accountability for theirhuman rights abuses. Such laws are contraryto the right to an effective remedy and repa-rations for gross violations of internationalhuman rights law. These forms of impunityencourage more human rights violations andsend a particularly negative message to vic-tims about state indifference and complicity

in their suffering. The Punjab Mass Crema-tions Case can challenge impunity for grosshuman rights violations in India because:

(1) the abuses are thoroughly documented;

(2) violent conict in Punjab has ended,allowing room for advocacy; and

(3) the Supreme Court has jurisdiction overthe case.

These circumstances have created an ex-traordinary opportunity to end impunity andachieve justice for human rights violations inIndia.

Indisputable Evidence ofMass CremationsFrom 1984 to 1994, Punjab security forces en-gaged in counter-insurgency operations thatincluded widespread and systematic humanrights abuses such as torture, disappear-ances, and extrajudicial executions, whichclaimed an estimated 10,000 to 25,000 lives.

In the early 1990s, Director General of Police(Punjab) KPS Gill expanded upon a system ofrewards and incentives for police to captureand kill militants, leading to an increase indisappearances and extrajudicial executionsof civilians and militants alike. Hundreds ofperpetrators, including all of the major archi-tects of these crimes, have escaped account-ability.

Proof of these human rights violations

emerged in early 1995, when human rightsactivist Jaswant Singh Khalra used govern-ment crematoria records to expose over6,000 mass cremations in just one of then13 districts in Punjab. After threatening hislife because of his human rights work, Pun-jab Police abducted Jaswant Singh Khalra onSeptember 6, 1995, secretly detained andtortured him for almost two months, andmurdered him in late October 1995.*

The extrajudicial executions, custodialdeaths, disappearances and widespread tor-ture perpetrated by the Punjab Police in thename of national security are clear violationsof international human rights law. Theseviolations are not the result of a few roguepolice ofcers ghting terrorism, but symp-toms of a deeply embedded system indiffer-ent to human life and the rule of law.

The ultimate resolution of the Punjab masscremations case will set precedent in Indiaon the redress of mass state crimes.

* On November 18, 2005, a district court in Patiala convicted six Punjab police ofcials in Khalras 1995abduction and/or murder.

It is horrifying to visualize that dead-bodiesof large number of personsallegedlythousandscould be cremated by the policeunceremoniously with a label unidentied.

Indian Supreme Court


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Legal ProceedingsIn 1995, the Committee for Information andInitiative on Punjab (CIIP) moved the Su-preme Court to demand a comprehensiveinquiry into the mass cremations. The Su-

preme Court ordered the Central Bureauof Investigation (CBI) to investigate thesecrimes. In December 1996, the SupremeCourt referred the matter to the National Hu-man Rights Commission (NHRC), observingthat the CBIs inquiry report disclosed a-grant violations of human rights on a massscale. The December 1996 report by the CBIshowed 2,097 illegal cremations at threecremation grounds of Amritsar district. How-

ever, this number does not accurately repre-sent the total number of individuals illegallycremated in Amritsar. Interviews with crema-tion ground workers disclosed that multiplepeople were often cremated with the re-wood normally required for completely burn-ing one body, and Khalra himself discussedover 6,000 cremations in Amritsar district.

The Supreme Court appointed the NHRC asits sui generis body, with the powers of the

Supreme Court under Article 32 to redressfundamental violations of human rights, inthe Punjab mass cremations case. Unfor-tunately, over the past ten years, the NHRCignored the fundamental rights violationsthat had occurred throughout Punjab andshielded perpetrators from accountability.The Commissions major failings in the Pun-jab mass cremations litigation include:

Territorially restricting its mandate to threecrematoria in Amritsar district, ignoringdisappearances, extrajudicial execu-tions, custodial deaths and illegal cre-mations throughout Punjab.

Limiting its mandate to the narrow issue ofthe procedural correctness of the crema-tions, ignoring the violations of the rightto life and liberty.

Refusing to investigate a single cremation,and thus never hearing any evidencefrom survivor families.

Refusing to hold any ofcials accountablefor the violations, repeatedly stating in

its orders: [W]e are not expressing anyopinion about the culpability or other-wise of any police ofcer or ofcials,nor shall we be understood to have ex-pressed any opinion about the respon-sibility of any of the ofcials of the statefor the unlawful and unceremoniouscremations of the deceased, without fol-lowing the rules, conventions and thehumanitarian law.

Refusing to apply international law to de-velop criteria for reparations.

Rejecting briefs and reports by internationalgroups. In its October 10, 2006 order,the Commission attacked the credibil-ity and report of Physicians for HumanRights and Bellevue/NYU Program forSurvivors of Torture.

In its October 9, 2006 order, which effective-ly closed the case, the NHRC compensatedthe next of kin of 1,245 individuals for thewrongful cremation of the decedent, wherethe Punjab Police did not follow the rulesfor proper cremations. It also appointed aCommissioner for conducting an inquiry toidentify the remaining 814 bodies underits consideration, if possible, within eightmonths. Thus, in ten years of litigation, theNHRC only found that the police had not fol-lowed the rules, guidelines, and proceduresrequired before cremating 1,245 identieddecedents.

When the Supreme Court designated theNHRC as its body to investigate the humanrights violations raised by the Punjab masscremations case, it also entrusted the CBIwith investigations into the culpability of po-

He was just a boy. AndI want to know whatthey did with him. Iheard he was crematedin Amritsar. Will theCommission listen to mycase or not?

Darshan KaurMother of victim(pictured on cover)

The Commission refusedto investigate a singlecase, and thus never heardany evidence from survivorfamilies.

A mockery has beenmade of the law.

Jaswant Singh Khalra

We dont require anycompensation. Even 50 lakhs,even a crore of rupees wedont require. We simplywant justice and we wantthose people to be punishedcompensation is not a matterof my child.

Gurcharan SinghFather of victim


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lice ofcers. The CBI was ordered to submitquarterly progress reports. Ten years later,nothing is known of these investigations andwhether there have been any prosecutions.

The conclusion of the matter in front of the

NHRC is the culmination of a decade of deni-als and refusals to acknowledge the suffer-ing of the families of the disappeared andthe widespread and systematic violations ofthe rights to life and liberty. The state pro-moted the perpetrators who organized andcommitted the crimes, rather than punish-ing them. The counter-insurgency strategiesemployed in Punjab continue to be executedin all corners of the country. The NHRCs

refusal to investigate the disappearancesamounts to a sanction of these practices andbetrays Indias claim to be the worlds larg-est democracy.

The Supreme Court retains seisin over thePunjab mass cremations case, and its ulti-mate resolution will occur there.

International HumanRightsInternational law establishes that enforcedor involuntary disappearances are gravehuman rights abuses that violate the rightto be free from arbitrary arrest, the right tobe free from cruel and inhuman treatment,the right to liberty, and the right to life, allof which are rights also guaranteed by the

Indian Constitution. International law furtherobligates States to investigate each disap-pearance, custodial death and extrajudicialexecution and provide an effective remedy tothose whose rights have been violated.

A victims right to an effective remedy im-poses an obligation on the state to under-take investigations to identify and prosecutethe perpetrators of human rights violations.The responsible state is further obligated to

provide comprehensive reparations for thedamage caused by the violations, which in-cludes: restitution, compensation, rehabili-

tation, and satisfaction and guarantees ofnon-recurrence. The satisfaction and guaran-

tees of non-repetition include, among otherinitiatives: full public disclosure of the truthand investigation of the facts; the search for

bodies of the killed and disappeared; publicacknowledgment of the abuses and accep-tance of State responsibility; and judicial oradministrative sanctions against the perpe-

trators. Further, reparation is premised onthe principle of non-discrimination, where allvictims who have suffered like violations re-ceive like reparations. The reparations prin-

ciples were developed in consultation withvictim groups.

The National Human Rights Commission hasfailed to provide an effective remedy equallybefore the law by refusing to investigate ex-trajudicial executions, custodial deaths, and

disappearances throughout Punjab, shield-ing perpetrators from accountability, andawarding arbitrary compensation amounts

without reference to the full spectrum ofrights violations and other components ofreparations.

International human rights groups have in-tervened in the Punjab mass cremationscase because of its signicance in measur-ing Indias fulllment of its obligations under

international law.

Examples include:

A legal brief submitted by Human RightsWatch and Harvard Law Student Advo-

cates for Human Rights in December2003, demonstrating Indias obligationunder international law to investigate allallegations of disappearances in Punjab,

and secondly, to allow circumstantial andtestimonial evidence to be admitted andweighed in cases of disappearance.

International human rightsgroups have intervened in thePunjab mass cremations casebecause of its signicance inmeasuring Indias fulllmentof its obligations underinternational law.

Despite receiving praise as the worlds largestdemocracy, Indias human rights record fallsdismally behind countries that have onlyrecently shed their legacy of dictatorships.

Jaskaran KaurCo-Director, Ensaafquoted in the Boston Globe


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A torture and trauma report submitted byPhysicians for Human Rights and Bellev-ue/NYU Program for Survivors of Torturein October 2005, revealing that deathsin custody and illegal cremations tookplace within a context of widespread hu-man rights violations that included re-peated torture, extrajudicial execution,and illegal cremation of the decedents.The experts also found alarming ratesof current and past psychological andphysical suffering among the survivors.

An open letter by Human Rights Watch tothe NHRC in November 2005, urgingit to order a full accounting of the sys-

tematic abuses that occurred in Punjab,determine liability after detailed investi-gations into the violations, and providecompensation to surviving family mem-bers based on a detailed understandingof the scope of violations suffered byeach individual.

RecommendationsThe ultimate resolution of the Punjab masscremations case will serve as precedent forvictims of mass state crimes throughout In-dia and will give content to the rights to lifeand redress. Thus, it is imperative to chal-lenge the NHRCs ten-year denial of justiceand create precedent based on internationalhuman rights and Indian law. In order to ful-ll its obligations under Indian and inter-national law, the Indian government must,

among other requirements:

Acknowledge its full role and responsibilityin the widespread and systematic abus-es that occurred throughout Punjab dur-ing the counter-insurgency period;

Investigate the abuses that occurred through-out Punjab during the counter-insurgen-cy period;

Identify the perpetrators of the human rightsviolations, and conduct speedy and im-partial investigations and prosecutions;

Provide reparations that redress the entirescope of violations, requiring individualdeterminations of compensation basedon the familys specic circumstancesand violations, and according to criteriaestablished by international and domes-tic precedent;

Eliminate the requirement of prosecutionsanction found in sections 45 and 197 ofthe Code of Criminal Procedure, whichserve to prevent criminal prosecutionsagainst government ofcials accused ofcommitting human rights violations andother crimes;

Enact and ratify legislation ensuring thatno military, police, law-enforcement, orother state agents receive immunity oramnesty from criminal prosecutions ordisciplinary proceedings for past or fu-ture violations of the rights to life andliberty, and that in such prosecutions orproceedings, no defense of obedience tosuperior orders is available;

Engage in a public accounting of how the

government has allowed its institutionsto participate in the perpetration ofgross human rights violations; and

As a member of the United Nations HumanRights Council, invite UN human rightsmechanisms, such as the UN SpecialRapporteur on Torture, into India to in-vestigate the abuses.

Punjab is cited as a model for

handling security crises. The result ofsuch a model has been more killings,torture, fear, and a police culturethat relies on violent repressionrather than the rule of law. Ensaafurges the Indian government to faceresponsibility for its past and createa new culture of respect for rights,so that victims of gross human rights

violations can obtain truth, justice,and reparations, and Indias citizenscan truly feel secure.


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Additional ResourcesFor a detailed background to the PunjabMass Cremations Case, as well as links tomajor orders, please visit:http://www.ensaaf.org/docs/nhrc.php.

For further documents on the human rightsviolations in Punjab, including Reduced toAshes, the amicus brief by Harvard Law

Student Advocates for Human Rights andHuman Rights Watch, and reports on thePunjab Mass Cremations Case, please visitEnsaafs online library at:http://www.ensaaf.org/info/.

For links to international advocacy onthe Punjab mass cremations case, pleasevisit: http://www.ensaaf.org/programs/advocacy.php#cremations.

EnsaafEnsaaf meansjustice in many South Asianlanguages. Ensaaf works to end impunityand achieve justice for mass state crimesin Punjab, India by documenting andexposing human rights violations, bringingperpetrators to justice, and organizingsurvivors to advocate for their rights.

Ensaaf works in partnership with thepetitioner Committee for Information andInitiative on Punjab to litigate the Punjabmass cremations case and organizeadvocacy.

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