November 1, 2005
Honorable Dr. Justice A.S. Anand
Chairperson, National Human Rights Commission
New Delhi, India 110001
Fax: +91 11 2338 4863
Re: Mass Secret Cremations in Punjab
Dear Justice Anand,
As the National Human Rights Commission prepares to issue a decision in the Punjab mass secret cremations case, we urge the Commission to order a full accounting of the systematic abuses that occurred in Punjab, determine liability after detailed investigations into the violations, and provide for compensation for surviving family members based on a detailed understanding of the scope of violations suffered by each individual.
On December 12, 1996, the Indian Supreme Court found the inquiry by the CBI into mass cremations in Punjab disclosed a “flagrant violation of human rights on a mass scale” and ordered the National Human Rights Commission (NHRC) to adjudicate these mass crimes and “determine all the issues” (Paramjit Kaur v. State of Punjab). After challenges by the Indian government, the NHRC limited its investigation to illegal cremations in Amritsar district alone. The NHRC has now received 3,500 claims of illegal cremation in Amritsar.
Instead of investigating these secret cremations as unlawful deprivations of life, the Commission has adopted the narrow issue of whether the victims’ bodies were cremated according to police rules. At two hearings in October 2005, the petitioner Committee for Information and Initiative on Punjab (CIIP) challenged the Commission’s decision to discard investigations, especially given the failure to identify the vast majority of victims and establish procedures, standards and mechanisms to adjudicate these cases to capture the full scope of human rights violations.
In almost nine years, the Commission has not heard testimony in a single case, or held a single security official or agency responsible for human rights violations. Further, at hearings in recent months, the Commission has indicated its intention to dispense with investigations into the violations altogether, and only determine whether the cremations occurred according to police procedure. This is an odd decision for a human rights body.
Human Rights Watch strongly urges the Commission to commit itself to detailed investigations into the rights violations suffered by all victims of illegal cremations and their family members, including whether individual deaths were unlawful, the role of state security forces or their agents in planning or carrying out illegal killings, identifying individual perpetrators, and determining proper compensation. It is critical that those cases not addressed by the NHRC's order of November 2004 are also investigated. Until the facts are determined, “disappearances” remain an ongoing crime and the NHRC ruling does not close the case.
Such investigations are required by international human rights law. The International Covenant on Civil and Political Rights, which India ratified in 1979, provides in article 2 that a victim of a rights violation shall have an effective remedy and that the right to such a remedy be determined by a competent authority and be enforced when granted. A victim's right to an effective remedy imposes an obligation on the state to undertake investigations to identify the perpetrators of human rights violations. Indeed, the Commission's August 1997 order concluded that the Commission must lay the factual foundations of the case in order to establish liability, but for reasons that are not clear the Commission has never implemented its own order. Anything less than proper investigations will be a betrayal of victims and their families.
We note that in the nine years since the Commission took cognizance of the Punjab mass cremations matter, it has investigated and resolved numerous other complaints of human rights violations throughout India. Moreover, the Commission has pursued cases suo motu, without even receiving a complaint, after violations came to its attention through media reports. The NHRC has earned a well-deserved reputation for taking on powerful forces in India, which makes the Commission’s decisions in the Punjab cases even more puzzling.
In this upcoming order, we also urge the Commission to clarify that the November 2004 order of compensation is interim. This order announced a total award of 2.5 lakhs rupees (around U.S. $5,500) to 109 families in whose cases police admitted custody of next of kin, without determining individual responsibility, providing other reparatory measures, or engaging in an inquiry into the facts as directed by the Supreme Court. This grant of compensation is not only paltry, but it does not fulfill the Commission's responsibilities under international human rights law to make an individual determination.
Developing a compensation policy requires extensive investigation to clarify the extent of human rights violations, the potential beneficiaries, and the nature of injuries suffered, among other issues. The expert report submitted at the hearing on October 24, 2005 by Physicians for Human Rights (PHR) and the Bellevue/NYU Program for Survivors of Torture (Bellevue), demonstrates that the deprivation of life occurred within a pattern of violations that included intentional abuse among multiple family members of the “disappeared.” The CIIP further called on the Commission to summon the authors of the report to testify. This report should compel the Commission to investigate the deprivation of the right to life of the victim, and the physical and psychological trauma inflicted upon surviving family members. In addition, our brief, submitted to the Commission in December 2003 in conjunction with Harvard Law Student Advocates for Human Rights, demonstrates that human rights bodies have considered evidence from numerous sources to adjudicate “disappearances” and extrajudicial executions, including evidence from international human rights experts. In its upcoming order, we urge the Commission to admit and fully weigh all evidence available, including the PHR/Bellevue report.
To demonstrate its intention to fulfill the mandate of the Supreme Court, the Commission must act to redress the violations of the rights to life and liberty suffered by thousands of families in Punjab. Its failure to do so is contributing to impunity, sending the message that perpetrators of mass crimes are more powerful than the Supreme Court and National Human Rights Commission. The Commission, no doubt, is aware that the prosecution of the officials who “disappeared” Jaswant Singh Khalra, the human rights defender who exposed the mass cremations in Punjab, has not concluded in nine years. The Commission should not allow the Punjab mass cremations case to also stand as an example of the triumph of impunity over the right to justice.
Thank you for your consideration. We look forward to a fruitful dialogue with you and other members of the Commission on this case.
Executive Director, Asia Division
Human Rights Watch