This order is in continuation of the order made by the Commission on 11th
November, 2004.
The Commission noticed in its order dated 11th November, 2004:
“Learned counsel for the parties have agreed that as a first step, the
Commission may consider the cases of such of the deceased persons who were
admittedly in the custody of the police prior to their death and were
cremated in police districts of Amritsar, Majitha and Tarn Taran, for the
purpose of awarding ‘compensation’ to their next of kin. Agreeing with the
submissions of learned counsel for the parties, the Commission has heard
arguments on the following questions:
(a) Whether any of the deceased who were cremated in police districts of
Amritsar, Majitha, Tarn Taran by the police were admittedly in the custody
of the Punjab police prior to the time of their death and cremation?
(b) Whether the State of Punjab is not liable to pay compensation to the
next of kin of those deceased, who were admittedly in the custody of the
police prior to their death and cremation?
If the answer to (b) is in the affirmative, then
(c) What should be the quantum of compensation payable to the next of kin
of those deceased?”
After hearing learned counsel for the parties and taking note of various
legal pronouncements, the Commission observed:
“On the basis of the settled law, we, therefore, unhesitantly hold that
human rights of 109 persons, who were admittedly in the custody of the
police immediately prior to their death, stood invaded and infringed when
they lost their lives, while in custody of the police thereby rendering
the state vicariously liable. There was a very great responsibility on the
part of the police and other authorities to take reasonable care so that
citizens in their custody were ‘safe’ and not deprived of their right to
life as in such cases “the duty of care on the part of the State is strict
and admits of no exception”. The State of Punjab is, therefore,
accountable and vicariously responsible for the infringement of the
indefeasible right to life of those 109 deceased persons as it failed to
“safeguard their lives and persons against the risk of avoidable harm”.
The first question is answered accordingly.”
After answering the first question, as noticed above, the Commission
answered the second question, thus:
“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.”
It was further observed:
“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 Supreme Court in the order of remit dated 12th December, 1996 referred
to the fifth and final report filed by the CBI, which indicated that 585
fully identified bodies, 274 partially identified bodies and 1238
unidentified bodies (total 2097) had been cremated by the Punjab Police in
the three crematorias of Amritsar, Tarn Taran and Majitha. The Commission,
therefore, commenced the inquiry regarding the cremation of 2097 bodies in
the those crematorias. During the proceedings before the Commission, the
CBI was asked to file the lists of the fully identified, partially
identified and unidentified bodies. Lists A, B and C were accordingly
filed. List A (582 fully identified bodies); List B (278 partly identified
bodies) and List C (1237 unidentified dead bodies).
While in cases of identified bodies, the next of kin of the deceased could
be provided with same monetary relief, if it was found that the cremation
of the bodies was done by ignoring the legal mandate/statutory rules etc.
and overlooking the sanctity of the dignity of the dead and sentiments of
the families of the deceased, it was the cases of partially identified or
unidentified bodies which required further probe. The Commission,
therefore, directed all the parties to assist it in identifying as many as
possible out of the unidentified (List C) or partially identified (List B)
as possible so that their next of kin could be provided with some monetary
relief also.
Learned counsel for CIIP during the course of inquiry filed a further list
of 163 persons out of List B and C (partly identified and unidentified
dead bodies) stating that those deceased also had now been identified and
would fall in the same category as the identified deceased mentioned in
List A. The State of Punjab, after verification accepted that out of the
list of 163 persons submitted by CIIP, identity of 111 persons out of List
B and C, had been verified and that those deceased would qualify to be
placed in the same class of persons as mentioned in List A. With regard to
the remaining 52 bodies, out of the list of 163 persons submitted by the
CIIP, the State of Punjab stated that their particulars were still being
verified. On March 3, 2005, CIIP filed yet another list of 12 persons from
out of List B and C with their identifications and submitted that those 12
persons had also been identified and would also fall in the same category
as fully identified persons of List A. During the hearing before the
Commission on 9th September, 2005, the State of Punjab accepted the
identity of 10 persons out of the list of 12 persons. Thus, it was
admitted case of the parties that total number of identified bodies now
stood as 703 (582+111 + 10 = 703) with corresponding reduction from List B
& C. Out of the two remaining persons from the list of 12 persons, one was
Amrik Singh, s/o Shri Charan Singh, CBI No. 391/56 (B). The State of
Punjab submitted that his name stood already included in List A and his
next of kin had already been awarded monetary relief by the Commission
vide its order dated 11.11.2004 which position was not disputed by CIIP.
It was also submitted by learned counsel for CIIP that out of the List of
12 persons filed by the CIIP, one Gurbachan Singh, s/o Shri Karnail Singh,
CBI No. 159/22 was, as per police record itself, in police custody at the
time of his death and that his case would be squarely covered by the
parameters of the order of the Commission dated 11.11.2004 relating to
grant of monetary relief to next of kin of 109 deceased. This position was
not disputed on behalf of the State of Punjab. Accordingly, the Commission
on 9th September, 2005, directed that the next of kin of Gurbachan Singh,
s/o Shri Karnail Singh, would also be entitled to receive monetary relief
in terms of the order of the Commission dated 11 November, 2004 and the
Deputy Commissioner, Amritsar was directed to take appropriate steps for
making payment in terms of that order to the next of kin of Gurbachan
Singh.
As already noticed, a total of 703 bodies out of the three lists A,B,C had
been identified, However, the Commission was continuing with its efforts
to get the remaining deceased of Lists B and C identified. On 9th January,
2006, a direction was issued to the State of Punjab by the Commission to
make further efforts, after inspection of records with the CBI and fields
visits, to identify as many more of the dead bodies out of Lists ‘B’ and
‘C’ as was possible. This exercise was undertaken and has yielded some
useful results.
The State of Punjab has filed a chart detailing 580 cases of identified
bodies. It was stated by the State that these identified persons were in
addition to the already identified bodies, including those whose next of
kin had already been granted monetary relief by this Commission vide its
directions dated 11th November, 2004 and 4th October, 2005, out of lists
A,B,C. Copies of the chart were supplied to learned counsel for the
petitioners for verification and response, if any, as regards the
identities of those persons.
During the hearing, Shri Gonsalves, learned Sr. Advocate for the CCDP
stated that there was no dispute as regards the identity of anyone of the
580 bodies, identified subsequently by the police and that in its response
dated 18.7.2006, the CCDP had only questioned the correctness of the
procedure followed by the State of Punjab while cremating the dead bodies
of all those deceased.
During the hearing on 3rd April, 2006, the State of Punjab submitted that
the name of following 10 persons were appearing in duplicate in the three
lists A,B and C. Those 10 persons are as follows:
Thus, it would be seen that according to the State of Punjab, names of 38
deceased had appeared in duplicate in the three lists A,B and C and,
therefore, the Commission was required to confine its inquiry in respect
of 2059 deceased (2097-38) cremated in the three crematoria only. Learned
counsel for the petitioners, after verification, did not dispute that out
of the identified bodies, 38 names had occurred in duplicate as stated by
the State of Punjab.
From an analysis of the chart of 580 persons (supra), considered with the
police record, it was found that 38 identified bodies (description given
below) were also in the “deemed custody” of the police prior to their
death and cremation.
Police District – Tarn Taran
The question, therefore, was whether the next of kin of these 38 persons
should also be given the benefit of our orders dated 24-11-2004 and
4-10-2005.
Learned counsel for CIIP and CCDP submitted that the next of kin of the
above noted 38 bodies were also entitled to be granted monetary relief at
the rate of Rs.2.50 lakhs, for the reasons given in the order of the
Commission dated 11.11.2004.
In fairness to the State of Punjab, we also wish to record that learned
counsel for the State of Punjab, Shri R.S. Suri, did not dispute that the
next of kin of those 38 deceased persons (supra) were to be treated at par
with those who were covered by the orders of the Commission dated 4th
October, 2005 based on the order dated 11th November, 2005 and that the
next of kin of those 38 persons were also entitled to receive monetary
relief in the same terms. The Commission, accordingly, held that the cases
of the 38 deceased persons (supra) fell within the parameters considered
by the Commission in its earlier orders of 11th November, 2004 and 4th
October, 2005 and that their next of kin were entitled to receive monetary
relief to the tune of Rs.2.50 lakhs each in terms of the order dated 11th
November, 2004. The State of Punjab was accordingly directed to deposit
the amount for payment of monetary relief for disbursement to the next of
kin of these 38 persons with the concerned DM, who was directed to make
disbursement in accordance with the procedures settled by the Commission
in its order dated 11th November, 2004.
Thus, the resultant position that emerged was that out of the identified
bodies, 148 deceased persons (109+1+38) were found to have been in the
actual/deemed custody of the police prior to their death and cremation
and, therefore, for the reasons stated in the order dated 11.11.2004,
their next of kin were held entitled to monetary relief to the tune of
Rs.2.50 lakhs each. On 12th March, 2006 the State of Punjab filed an
application stating that on further analysis of the affidavits filed by
the State of Punjab, it appeared that out of the chart filed by the State
detailing 580 deceased subsequently identified, 42 deceased persons,
detailed in that chart, also satisfied the parameters fixed by the
Commission in its orders of 11th November, 2004 and 4th October, 2005, and
qualified to be treated as ones in the “deemed custody” of the police,
prior to their death and cremation. Besides, Mr.R.S. Suri also stated that
out of the earlier lists filed by the State, three deceased persons,
namely, Raghbir Singh, S/o Sh.Mohinder Singh Jat; Manjit Singh @ Manna,
S/o Ajit Singh Jat and Rajinder Singh S/o Kishan Singh also fall in the
category of being in deemed custody of the police prior to their death and
cremation and their next of kin could be treated at par with similarly
other deceased, dealt with by the Commission in its earlier orders of 11th
November, 2004 and 4th October, 2005.. Learned counsel opposite did not
join any issue in this behalf.
In the petition dated 29th March, 2006 filed by the State of Punjab, it
was conceded that the case of Ram Singh, son of Gura Singh of Police
District Tarn Taran (CBI No.276-959) also within the category of persons
in the deemed custody of the police prior to his death and cremation.
Learned counsel for the State of Punjab, therefore, stated that the case
of Ram Singh son of Gura Singh mentioned above would also be covered under
the parameters laid down by the Commission in its order dated 11th
November, 2004 and 4th October, 2005. The Commission, accordingly, on 3rd
April, 2006 directed that the next of kin of Ram Singh, son of Gura Singh
be also paid monetary relief to the tune of Rs.2.50 lakhs. The State of
Punjab was required to deposit the amount within three weeks and the
concerned Deputy Commissioners were directed to disburse that relief in
accordance with the procedure settled by the Commission in its order dated
11th November, 2004.
By our order dated 15th May, 2006, it was directed that the next of kin of
each one of those deceased persons mentioned in the petitions filed by the
State of Punjab dated 12.3.2006 referred to in an earlier part of this
order, who admittedly, fell within the parameters fixed by the Commission
on 11th November, 2004, would be entitled to receive monetary relief of
Rs.2.50 lakhs each. The State of Punjab was directed to deposit the amount
for disbursement of monetary relief with the concerned Deputy
Commissioner. Thus, in all, it is seen that monetary relief at Rs.2.50
lakhs has been held payable to each one of the next of kin of 194 deceased
persons (109+1+38+42+3+1), (Raghbir Singh S/o Mohinder Singh, Manjit Singh
S/o Ajit Singh, Rajinder Singh S/o Kishan Singh and Ram Singh S/o Gura
Singh).
Deputy Commissioner, Amritsar, vide its communication dated 3rd July, 2006
reported that besides disbursing the amount to the next of kin of Ram
Singh, disbursement had also been made in 28 out of 38 cases and process
for disbursement in respect of remaining 10 was in place. It was also
reported that in respect of next of kin of 45 deceased persons who were
also held entitled to monetary relief at the rate of 2.50 lakhs as per
proceedings of the Commission dated 15.5.2006, funds to the tune of
Rs.1,12,50,000/- had been deposited by the State of Punjab with the Deputy
Commissioner, Amritsar for disbursement of the monetary relief to their
next of kin and appropriate steps were being taken.
Thus, having dealt with the cases of the violation of human rights of
those 194 persons, who were admittedly in the custody of the police
‘immediately prior to their death and their cremation’ and holding the
State of Punjab accountable and vicariously responsible for the violation
of the indefeasible right to life of those deceased persons who had died
while being in the custody of the police and unlawfully cremated by the
police and awarding monetary relief to their next of kin at the rate of Rs.
2.50 lakhs each, the Commission has now to consider the cases of the
remaining dead bodies, fully or partially identified, as well as
unidentified bodies which were cremated by the Punjab police in the police
districts of Amritsar, Tarn Taran and Majitha to determine if there had
been any violation of their Human Rights and if the answer is in the
affirmative, to grant appropriate monetary relief to the next of kin of
such deceased persons.
In its order of January 13, 1999 the Commission had opined:
“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 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, the Commission had placed the initial onus on the State of Punjab to
satisfy the Commission that cremations were done in accordance with the
procedure prescribed by law more particularly in the Police Rules.
Though initially only 582 bodies had been identified as the ones cremated
by the State of Punjab in the three police districts of Amritsar, Taran
Taran and Majitha (List A submitted by the CBI to the Supreme Court of
India), the efforts of the Commission, with useful assistance from learned
counsel for all the parties, the total number of deceased whose identity
has by now been established comes to [(582+111+10+580)-38](Duplicate
names) = Total 1245, out of the total of 2059 [2097-38 (duplicate names)]
bodies cremated by the State of Punjab in the crematoria of the said three
police districts.
What, therefore, now requires consideration by the Commission is the issue
whether the rules and procedures prescribed by law were followed before
cremation of the identified bodies in the three police districts of
Amritsar, Tarn Taran and Majitha as contained in lists A, B and C and the
consequence of compliance or non-compliance with the rules and procedure,
keeping in view the dignity of the dead and the sensitivities of the
families of the deceased and the requirements of the humanitarian law.
Following questions, thus, now require determination:
1. Did the State follow rules, guidelines, procedure and practices before
cremating the dead bodies of identified persons out of lists A, B, C.?
2. If the answer to the above is in the negative, is the State not liable
to make monetary amends for violating the dignity of the dead and causing
distress to the next of kin of such persons and violating the acceptable
standards of humanitarian law ?
3. If the answer to the above is in the affirmative, what should be the
quantum of compensation payable to the next of kin of those
“unceremoniously cremated?
4. What relief, if any, can be granted in respect of the unidentified
bodies (List C) or partially identified (List B) cremated by the State of
Punjab in the three police districts?
The State of Punjab as well as learned counsel appearing for the claimants
and writ petitioners were heard on these questions.
With a view to answer the questions detailed above, one of the directions
of the Commission on 9th January, 2006 to the State of Punjab was:
“…………… to file a detailed chart indicating the fact position by reference
to the affidavits filed in the case in respect of each one of them giving
chapter and verse from the record to indicate which of the procedural
guidelines were not followed before the cremations were done in respect of
those who were cremated. The State shall also indicate various steps taken
by it before cremating the dead bodies with reference to the affidavits to
submit the circumstances under which procedural safeguards could not be
followed in those cases.”
The needful was done with copies to learned counsel opposite.
We now proceed to deal with the questions posed above.
Questions 1, 2 and 3 are inter-related and interdependent and it would be
appropriate to deal with the questions together.
To answer the above questions, before we examine the rules, guidelines and
procedure for cremating dead bodies, we must start on the undisputed
premise that 2059 (2097-38) bodies detailed in the three lists A, B and C,
filed by the CBI in the Hon’ble Supreme Court had been cremated by the
Punjab Police in the three crematoria of Amritsar, Tarn Taran and Majitha.
During the inquiry by the Commission, the total number of dead bodies
whose identity has by now been established is 1245 (including 582
mentioned by the CBI in the List A) including 194 deceased persons whose
next of kin have already been held entitled to receive monetary relief to
the tune of Rs.2.50 lakh each. 663 more dead bodies have, thus, been
identified out of Lists B and C, with corresponding reduction of the
figures in Lists B and C as filed by the CBI in the Supreme Court, during
the course of enquiry by the Commission. Out of the total of 2059 dead
bodies, only 814 bodies, out of lists B and C, thus, remain unidentified.
The fact that during the course of inquiry before the Commission as many
as 663 more bodies have been identified (initially List A had only 582
identified dead bodies) shows that they were capable of being identified
but apparently sincere efforts do not appear to have been made by the
Punjab Police to identify the deceased before they were cremated. Had
sincere efforts been made by the State Police to identify the dead and
locate and intimate their families or next of kin, about their death, the
dead would not have been denied the right to be cremated/buried by their
near and dear ones, besides the feelings and sentiments of their families
and next of kin would not have been hurt. We find that there has been a
serious lapse on the part of the State Police in this behalf.
According to the learned counsel appearing for the State of Punjab, dead
bodies of identified as well as unidentified persons were handed over to
the concerned Municipal Corporation or other local bodies for performing
last rites as per the religion of the deceased, as unclaimed bodies, and
proper respect was shown to the dead. It is also stated that some of the
identified dead bodies were handed over to the families of the deceased
for cremation / burial and those families did the needful, a factor which,
however, is disputed by learned counsel for the petitioners / claimants.
The argument does not find any support from the record. No explanation, is
forthcoming as to why efforts were not made to contact the relatives or
trace next of kin of the identified deceased persons or justification for
handing over the dead bodies to the Municipal Corporation or other local
bodies. No affidavit of any official of Municipal Corporation or other
local bodies has either been filed about the steps taken by them before
cremation of the dead bodies.
Regarding obligations of the State/Municipal Corporation for causing
burial or cremations of dead bodies, assuming the same to be unclaimed, it
would be advantageous to notice some of the observations of Their
Lordships of the Supreme Court in Ashray Adhikar Abhiyan Vs. Union of
India (2002 SOL Case No. 012) decided on 9.1.2002.
In the aforesaid case, a letter was addressed to Hon’ble the Chief Justice
of India by the members of Ashray Adhikar Abhiyan, making a complaint to
the effect that when homeless persons, meet death, they are not cared for
and are not given a decent burial. The writer of the letter prayed for an
intervention by the Court with a view to issue necessary directions to all
those concerned, so that a person dying on the road, can at least get a
decent burial or cremation. An important question as to the rights of
homeless deceased, to have a decent burial, as per their religious belief
with the corresponding obligation of the State towards such person, led to
the letter being treated as a Writ Petition. On notices being issued by
the Supreme Court, the Deputy Commissioner of Delhi and the then Deputy
Municipal Health Officer filed affidavits, detailing the procedure which
was being followed when a person dies on the streets and the dead body
remains unclaimed. It was stated that in such cases, the unclaimed body of
the deceased is handed over to the M.C.D. by the Delhi Police and
thereafter the dead body is cremated at Electric Crematorium, Bela Road by
the Health Department of M.C.D., free of cost. In case the dead body is
that of the Muslim, then the same is buried on a burial ground near Delhi
Gate by the Waqf Board and the Municipal Corporation of Delhi bears the
expenses.
On behalf of the Municipal Corporation of Delhi, it was submitted:
“Mr. B.A. Mohanti, the learned senior counsel appearing for the Municipal
Corporation of Delhi, submitted on instructions that Police reaches the
spot of occurrence as soon as it is made known that a dead body not being
claimed is there on the road and then steps are taken to identify the dead
body and to establish the reasons of the death. The dead body is
photographed, where after, if is sent to mortuary for post-mortem. An
Intimation is also sent to the Sub Divisional Magistrate. In the matter of
identification, wireless message giving complete description of the dead
body is sent all over India and intimation is given for its publication in
newspaper. There is also a proforma, which is sent along with the
photograph to the Missing Persons’ Squad and the same is published in
Police Gazette.”
The court accepted the submissions and opined:
“…..since affidavit filed indicates that the unclaimed dead body is
cremated in the Electric Crematorium, we do not think it necessary to
issue any further directions in that regard. On the materials on record,
we are satisfied that the Municipal Corporation of Delhi is taking all
possible steps for a decent burial of the unclaimed dead bodies found on
the road and, therefore, question of issuing any further direction in that
regard does not arise.”
[Emphasis supplied]
These observations of the Hon’ble Supreme Court, thus, indicate the
following minimal requirements, for burial/cremation of unclaimed dead
bodies, which are required to be carried out by the State/Police/Municipal
Committee/local body authorised to cremate/bury an unclaimed dead body of
a citizen. The Police on reaching the spot of occurrence as soon as it is
made known to it that there was a dead body, which had not been claimed,
are:
(a) shall take steps to identify the dead body;
(b) take steps to establish the reason of death;
(c) get the photographs of the dead body whereafter it should be sent to
mortuary for post mortem;
(d) send an intimation to the SDM concerned;
(e) for the purposes of identification, wireless message giving complete
description of the dead body should be sent all over India besides giving
intimation for its publication in the newspaper;
(f) send a copy of the photographs together with proforma to the Missing
Persons Squad for its publication in the police gazette.
In the present case, the Punjab Police did not take those steps before the
dead bodies were cremated in these crematories.
A reference to some of the relevant provisions of Punjab Police Rules,
1934, dealing with the questions under consideration, regarding the manner
of dealing with the unclaimed dead bodies of a citizen would at this stage
be appropriate.
Rule 25. 33 Investigating officer – action of at scene of death – On
arrival at the place where the body of a deceased person is lying, the
police officer making the investigation shall act as follows:
xxx
xxx
(5) He shall draw a correct plan of the scene of death including all
features necessary to a right understanding of the case.
(8) He shall take the finger prints of the deceased person if the body is
unidentified.
(9) The photographing of the body in situ and of the scene of the
occurrence may prove of great evidential value.
Rule 25.36 Post-mortem examination – when and by whom held-
(1) The legal requirements in respect of post-mortem examination by a
qualified surgeon are contained in section 174(3), Code of Criminal
Procedure. In every case where death appears to have been due to suicidal,
homicidal, accidental or suspicious causes and where any doubt exists as
to the exact cause of death, or if it appears to the officer conducting
the investigation – whether under section 157 or section 174, Code of
Criminal Procedure – expedient to do so, the body shall be sent to the
nearest medical officer authorised by the Local Government to conduct
post-mortem examination. The sending of bodies for examination may only be
dispensed with, where such action is otherwise required when conditions
exist, such as advanced putrefaction, which would clearly make examination
useless.
xxx
xxx
(4) In cases where it is impossible either to send a body to a qualified
medical officer or to have it examined by such officer on the spot, the
investigating officer may, at his discretion, request the nearest
Government medical officer, even though such officer be not authorized to
conduct post-mortem examinatino, to assist him with his anatomical and
other expert knowledge in estimating the effects and causes of injuries
etc. Such medical officers are not empowered to perform any operation on
the body. Medical officers of the Irrigation and Public Health Departments
and of local bodies cannot be called upon in this connection unless they
have been specifically authorized by the Local Government to undertake the
medico-legal work (vide rule 25.19).
25.37. Post-mortem examinations – action to be taken by police – When
corpses are sent for medical examination the following rules shall be
observed:
xxxx
xxxx
(6) As soon as the Civil Surgeon has intimated that his examination is
complete, the police shall, unless they have received orders from a
competent authority to the contrary, make over the body to the deceased’s
relatives or friends or, if there are no relatives or friends, or they
decline to receive it, the police shall cause the body to be buried or
burnt according to the rules framed in this behalf by the District
Magistrate.
25.38. Unidentified bodies – If a body is unidentified, the officer making
the investigation shall record a careful description of it, giving all
marks, peculiarities, deformities and distinctive features, shall take the
finger impressions and, in addition to taking all other reasonable steps
to secure identification shall, if possible, have it photographed, and, in
cases where such action appears desirable, a description published in the
Criminal Intelligence Gazette.
Unidentified corpses should be handed over to any charitable society which
is willing to accept them, and if no such society comes forward, they
should then be buried or burnt.
“………..”
Thus, what is spelt out from the relevant Punjab Police Rules, 1934
(supra) is that it is obligatory on the part of the police in cases where
they find unclaimed dead body of a citizen to:
i) draw a correct plan of the scene where dead body is;
ii) take finger prints of the deceased where the body is unidentified;
iii) get the photographs of the body taken at the scene of occurrence;
iv) get a post mortem examination of the dead body conducted by the
nearest qualified surgeon as per the provisions of Section 174 (3) of the
Code of Criminal Procedure;
v) to follow rules contained in Rule 25.37 of the Punjab Police Rules,
1934 at the time of sending the dead body for medical examination;
vi) record a careful description of the unidentified dead body giving all
marks, pecularities, deformities and distinctive features with a view to
facilitate identification of the body;
vii) take steps for burial/cremation of body by handing over the
unidentified body to either the Municipal Council or any other charitable
society willing to accept it. The Municipal Council or the charitable
body, as the case may be shall follow the basic rules of cremiantion/burial
according to the religion of the deceased.
While it is possible to agree with the learned Solicitor General, assisted
by Shri R.S. Suri, that the police had got the post mortem conducted in
each and every case of the unclaimed body before its cremation, no
material has been placed on the record to show that the officer conducting
the investigation had in letter and in spirit followed the requirements of
Section 174 of the Code of Criminal Procedure. In so far as other Rules,
as noticed above, are concerned, the learned Solicitor General fairly
conceded that appropriate steps under the Punjab Police Rules were not
taken before cremation of identified dead bodies and that steps were also
not taken to identify the unclaimed dead bodies, where identity of the
deceased was not known. It is also admitted that even bare minimal steps
like taking the photographs of the deceased or taking of the finger
impressions, recording of marks, pecularities, deformities and distinctive
features of the dead bodies were not undertaken by the Punjab Police
before getting the bodies cremated in the three crematoria of Amritsar,
Majitha and Tarn Taran.
Shri R.S. Suri, learned counsel, however, submitted that in the state of
affairs which was existing at the relevant time, with terrorism at its
peak and a war like situation, it was not possible for the State to take
all such steps as are envisaged by the Punjab Police Rules, 1934 and in
particular Rules 25.33, 25.36, 25.37 and 25.38 without risking
deterioration in the already surcharged atmosphere. Mr.Gonsalves,
Sr.Advocate as well as Smt.Nitya Ramakrishnan, Advocate, countered the
submissions of the State of Punjab by urging that the plea being raised to
justify non following of its own rules was an attempt to hide its
activities and justify the clandestine manner of hurriedly and
unceremoniously cremating the dead bodies, without making any efforts to
identify the deceased. Learned Counsel referred to certain paras of
various affidavits filed by the State of Punjab to urge that the State
actually took no steps at all to identify the unidentified deceased or
even to contact the relatives and family members of those deceased, whose
identity was not in doubt. It is urged that there was a systematic breach
of procedure which resulted in total violation of the rules.
We have given our anxious consideration to the respective submissions
raised before us.
The fact that 2059 bodies had been cremated in the three crematoria of
Amritsar, Majitha and Tarn Taran of persons is not in dispute. In view of
the fair concession made on behalf of the State of Punjab by the learned
Solicitor General regarding non following of the procedural requirements,
(except for getting the post-mortem done) we find on the admitted premise
that the Punjab Police Rules, convention and practices as also the
observations of the Supreme Court were respected in their breach by the
police before undertaking the cremation of 2059 bodies. This action of the
police coupled with their lapses has resulted in violation of the human
rights of the deceased as well as their family members and next of kin.
Dignity of the dead has been offended.
Human dignity is the spine of human rights. Human dignity is infact the
very foundation on which Human Rights rest. Emphasis on human dignity is
enshrined in the UN Charter, the Universal Declaration of Human Rights and
several covenants as also in the Constitution of India, which proclaims
“dignity of individual” as a core value in its Preamble. Human dignity
includes the dignity of the living as well as the dignity of the dead.
Every State is required to abide by the rules of humanitarian law
regarding disposal of bodies of unclaimed deceased persons. This also is
the core of good governance which postulates ensuring and protecting human
dignity. It is also a basic rule of Geneva Convention, to which India is a
party that the State must protect the dignity not only of the living
citizens but also of the dead. We find support for our view from Article
130 of the Fourth Geneva Convention which provides thus:
“The detaining authorities shall ensure that internees who die while
interned are honourably buried, if possible according to the rites of the
religion to which they belonged and that their graves are respected,
properly maintained, and marked in such a way that they can always be
recognized.
Deceased internees shall be buried in individual graves unless unavoidable
circumstances require the use of collective graves. Bodies may be cremated
only for imperative reasons of hygiene, on account of the religion of the
deceased or in accordance with his expressed wish to this effect. In case
of cremation, the fact shall be stated and the reasons given in the death
certificate of the deceased. The ashes shall be retained for safe-keeping
by the detaining authorities and shall be transferred as soon as possible
to the next of kin on their request.”
The right to respect the dignity of the dead is not only important for the
deceased but is also equally important for the sentiments of the family
and friends of the deceased. The rights of the family of the deceased
include receiving of the dead body, its funeral ceremony including
performing last rites with all essential ceremonies, before burial or
cremation. The next of kin have indeed a right to the dead and even if be
limited to taking possession of the dead body for the purposes of burial
or cremation, it cannot be permitted to be breached. As already noticed,
the State of Punjab made no efforts whatsoever to contact or trace the
relatives of the identified deceased. No explanation, much less an
acceptable or a satisfactory explanation has been offered by the State for
not following the basic requirements keeping in view the dignity of the
dead and the sentiments of the family of the deceased. The submission of
Mr.Suri on behalf of the State about the prevailing situation, cannot,
absolve the State of its obligations under the Rules and practices. A
similar argument raised before the Commission by the State of Punjab was
rejected by it vide its order dated 11th November, 2004. It was observed:
“Before we consider the submissions of learned counsel for the parties in
their correct perspective, it needs to be pointed out that human rights of
citizens are non-negotiable and non-derrogable. No compromise with
violations of the same is permissible in any civilized society. These
rights recognize the essential worth of a human being and acknowledge the
dignity inhering in all human beings, irrespective of their race, sex or
economical level of living. While this is a historical fact, it is also a
reality that the cult of terrorism strikes at the very root of human
rights of innocent people. Terrorism and human rights are natural enemies
with no possibility of their co-existence. No person who supports human
rights can support terrorism, which results in a grave violation of human
rights of innocent citizens.
It needs to be acknowledged that there can be no alibis and justification
for terrorism and nothing justifies terrorism and that the menace of
terrorism has to be curbed. However, the Commission is firmly of the view
that whereas terrorism must be countered effectively and strongly, no
democratic society can be permitted to chill civil liberties of the
citizens while taking measures against the terrorists. In the fight
against terrorism, sensitization level of human rights cannot be allowed
to be sacrificed. A critical task of striking a fair balance by way of
security concerns and human rights is to be performed and need of
proportionality must not be ignored. While fighting war against terrorism
relentlessly, the State cannot be permitted to go over board and in effect
declare a war on the civil liberties of people because the rationale of
anti-terrorism measures is aimed at protecting human rights and democracy.
Counter-terrorism measures should, therefore, not undermine democratic
values or subvert the rule of law. It is during anxious times, like the
decade in Punjab under our consideration, when care has to be taken that
State does not recourse to bend the rule of law.
The State of Punjab was required to take all necessary steps to identify
the unclaimed dead bodies and contact the next of kin of those whose
identity was not in doubt. This was necessary to show respect to the
dignity of the dead and to be sensitive to the feelings and emotions of
the families of the deceased. The State of Punjab failed on both these
counts, thereby providing some justification to the submissions of learned
counsel for CIIP and CCDP that the cremations were done “unceremoniously”,
“unlawfully” and in a hurry showing scant respect to the dead.
Every society has certain traditions which it follows. The respect for
those traditions necessitates that the State does not interfere with the
same unless they are in breach of any law. In case of dead bodies, it is
already an unmitigated tragedy for the family whose member has died and
that tragedy gets compounded if without following its established
tradition and religious customs, the body is cremated or buried rather
unceremoniously. Every religion has respect for the dignity of the dead.
Religious ceremonies, before cremation or burial, vary but the genesis of
these ceremonies is in honouring the dead. Respecting the dead is not
limited only to the body of the deceased but it involves respecting
emotions and sentiments of the family of the deceased also. This is also a
well accepted injunction of humanitarian law.
Thus, the receiving of the body for burial/cremation, arranging the
funeral ceremony are all essentials in comprehending the reality of death
of a relative and friend and accept and dealing with it. It is obviously
in furtherance of those rights and the humanitarian law that relevant
provisions had been incorporated in the Punjab Police Rules. The police
authorities were expected to follow and honour the mandate of those Rules.
They obviously showed scant respect for the rules and committed their
breach with impunity. The answer to question No.1 is, therefore, in the
negative.
Now coming to questions Nos.2 and 3 i.e.: Whether State is not liable to
make monetary amends for violating the dignity of the dead and causing
distress to the next of kin of the deceased and the quantum of
compensation payable to the next of kin of those unceremoniously cremated?
The importance of affirmed rights of every human being, at all times,
needs no emphasis and, therefore, to deter breaches thereof becomes a
sacred duty of this Commission as a forum for protection and promotion of
human rights of the citizens. Assault on human dignity cannot be permitted
in any civilized society. Human dignity cannot be allowed to be set at
naught or circumvented. As a necessary corollary it follows that whenever
human dignity is wounded by functionaries of the State, it is against the
State that the remedy must be sought for its failures to protect human
dignity of the citizens. Enjoyment of basic human rights including the
right to have its human dignity respected are the entitlements of every
citizen and their protection an obligation of every civilized State
because they are inherent in and essential to the structure of the
society. An assault on human dignity makes the civilization take a step
backward. Protection of human rights and grant of redress where the same
have been infringed is a part of legal consequences of the infringement of
those human rights. Award of monetary relief in such cases, of course,
does not imply enforcement of the human rights which had been violated but
is clearly a form of redress which a person is entitled to claim. It is a
claim in public law for making monetary awards for deprivation of
guaranteed human rights of the concerned citizens. It is a well accepted
proposition in law 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 human
rights of a citizen by the public servants and the State must be held
vicariously liable for the acts of its public servants. The object of
granting such monetary or pecuniary relief to the aggrieved party is only
to apply balm to the wound and not to punish the transgressor or the
offender as awarding appropriate punishment for the offence has to be left
to the criminal courts in which the offender may be prosecuted. The grant
of the monetary relief is also without prejudice to the rights of the
parties in any other manner.
Out of 2059 bodies cremated in the three crematoria of Police Districts
Amritsar, Majitha and Tarn Taran we have, in an earlier part of our order,
held that 194 of the deceased persons were in the “custody” or “deemed
custody” of the police prior to their death and cremation and have held
the next of kin of each one of them entitled to grant of monetary relief
at the rate of Rs.2.50 lakhs. Though, initially only 582 bodies had been
identified, during the inquiry the identity of as many as 1245 (including
582 of List A) was established. Thus out of the total 2059 bodies cremated
by the State of Punjab in the crematoria referred to above, the identity
of 1245 stands fixed. Since the next of kin of 194 have already been
awarded monetary relief as already noted, that leaves 1051 bodies to have
been cremated by the State of Punjab without following the Punjab Police
Rules, guidelines, practice and humanitarian law. Next of kin of each one
of these 1051 families are also entitled to receive monetary relief, to
apply balm to their wounds for the reasons already recorded.
As regards the extent of monetary relief, in our order of 11th November,
2004 we had observed:
“Indeed, the quantum of compensation depends upon the circumstances of
each case and there is no rule of thumb which can be applied to all cases
nor even a universally applicable formula. In our opinion the compensation
has to be fair and reasonable. It should neither be punitive nor
illusory.”
On the issue of monetary relief, learned counsel, Shri Navkiran Singh,
appearing for the widow of the decease Shri Jaswant S. Khalra, the
original petitioner in the writ petition in the Supreme Court, submitted a
petition stating that an amount of Rs. 1.50 lakhs should be considered as
appropriate monetary relief to be awarded in favour of the next of kin of
all those deceased who by now stand identified and had been cremated by
the Punjab police in the three crematoria. Learned counsel further
submitted that this amount should also become payable, in addition to the
sum of Rs. 2.50 lakhs already granted by the Commission, by way of relief
to the next of kin of such of the deceased persons who had died while in
‘actual or deemed’ custody of the police. Mr. Colin Gonsalves, learned
counsel for CCDP submitted that an amount of Rs. 2 lakh should be awarded
by way of monetary relief, to the next of kin, of each one of the other
identified deceased who were unceremoniously cremated by the Punjab
police. Ms. Nitya Rama Krishnan made certain oral submissions and sought
permission to file written submissions in support of her submissions. She
has filed a written statement dated 20.09.2006 in the Commission on
21.09.2006 on the issue of compensation. In the written submissions inter-alia
she has stated :-
“The NHRC has taken the view that its remit is the 2097 bodies
(identified, unidentified and partially identified). The issue is now of
the fixing of compensation in respect of the human rights violation that
is seen to be inherent in the illegality of or lapses in the cremations in
respect of these cases.”
“CIIP is aware of the limits placed on the NHRC’s remit by pronouncements.
CIIP is equally aware of the fact that its plea regarding all cases of
extra judicial executions and disappearances throughout the state stands
rejected. However, it is submitted with respect, that the above would, in
no way foreclose the CIIP’s submissions on the nature of compensation to
be awarded in the cases where the NHRC has come to the conclusion that it
must be awarded.”
“NHRC has taken the view that the lapses and illegalities in the
formalities attending the cremations would render the same an affront to
the dignity of the dead. It is this affront that is now being sought to be
healed by the remedial action under human rights jurisprudence. If this
view is the bases for award of compensation, then, CIIP submits that there
is no reason to distinguish between one irregular cremation and another
……”
………….
………….
Having said that, the CIIP states that it has no submission whatsoever to
make on the quantum of monetary relief fixed. As would become evident in
the following paragraphs, the CIIP would stress on the remedial
compensation which is in keeping with human rights jurisprudence. This
Hon’ble Commission is not a motor accidents tribunal and the CIIP does not
intend to address it as one.”
…………
………...
“The Reparation Principles describe four forms of reparation that States
should provide to victims of violations of human rights and humanitarian
law: restitution, compensation, rehabilitation and satisfaction and
guarantees of non-repetition. Restitution is described as the restoration
of the victim, whenever possible, to the original situation prior to the
occurrence of the violation. This includes measures such as “restoration
of liberty, legal rights, social status, family life and citizenship;
return to one’s place of residence; and restoration of employment and
return of property.”……..
………….
………….
“The Principles include the satisfaction and guarantees of non-repetition
in the definition of reparation, stressing: the cessation of continuing
violations………”.
In certain other paragraphs of the written submissions, Ms. Nitya Rama
Krishnan has repeated some of the arguments earlier advanced on behalf of
the CIIP, which have elaborately been discussed by the Commission on
various earlier occasions and need not be repeated. She has also referred
to what she classifies as international human rights ‘precedents’ to
indicate the type of and the extent of monetary relief which has been
granted, under certain circumstances, in different countries. We do not
find it necessary to refer to those precedents, from various other
countries which according to her had also experienced systematic human
rights violations and the extent of compensation granted in those cases.
In matters of grant of compensation, it is the facts and the circumstances
of each case which alone are required be taken into consideration and can
govern the exercise of the power of the concerned forum to grant monetary
relief to the victims or their next of kin. During her oral submissions,
while elaborating on the nature of non-monetary relief, she submitted that
the State should takes steps for psychological, rehabilitation of the
families of the deceased besides restoration of institutional integrity.
She urged that the State of Punjab be directed to takes steps to ensure
non-recurrence of such acts in the future.
The Learned Solicitor General appearing for the State of Punjab in
response to the submissions made by learned counsel for the writ
petitioner, CIIP and CCDP submitted that the amount of monetary relief to
be granted to the next of kin of the identified deceased, whose bodies
were cremated by the Punjab police, should indeed be fair and reasonable
and suggested that an amount of Rs. 1.50 lakhs, as suggested by learned
counsel for the original writ petitioner, appeared to him to be
reasonable. He, however, submitted that there was no justification to
re-open the issue, already settled by the Commission in its earlier orders
and award further monetary relief of Rs.1.50 lakhs to the next of kin of
each of those 194 deceased who had been granted relief at the rate of
Rs.2.50 lakhs. He drew attention of the Commission to the following issues
(order dated 11.11.2004):
(a) Whether any of the deceased who were cremated in police districts of
Amritsar, Majitha, Tarn Taran by the police were admittedly in the custody
of the Punjab police prior to the time of their death and cremation?
(b) Whether the State of Punjab is not liable to pay compensation to the
next of kin of those deceased, who were admittedly in the custody of the
police prior to their death and cremation?
to urge that both these issues were deliberated and discussed by the
Commission and its finding on the two issues recorded in its order of
11.11.2004 were clear and specific. According to the learned Solicitor
General, the State of Punjab was, by that order required to make monetary
amends, for the unlawful cremation of the dead bodies of those deceased
persons who were admittedly in the custody of the Punjab police prior to
their death and cremation in the three crematoria, by granting Rs. 2.50
lakhs to the next of kin of each of those deceased. He asserted that the
issue having been settled, no further, amount by way of monetary relief
could be granted in favour of the next of kin of the 194 deceased persons.
Responding to the submission of learned counsel for CIIP, the Learned
Solicitor General stated that the State of Punjab had been taking all such
steps as are necessary to heal the wounds of the effected families. He
stated that the return of normalcy in the State of Punjab was a positive
proof of the efforts made by the State and that the State would continue
with its efforts in that behalf and that he was under instructions to say
that the State shall not be found wanting in that behalf. We record the
statement.
We have given our anxious consideration to the submissions raised before
us.
We find substance in the submission of the Learned Solicitor General
countering the prayer made by learned counsel for the writ petitioner
regarding grant of additional relief in favour of the next of kin of 194
deceased persons. The Commission, under order of the Supreme Court dated
12.12.1996 as well as various subsequent orders, which have already been
referred to in our proceedings of 11th November, 2004, had been entrusted
with the task of examining the issue of “unlawful cremations” of 2097
bodies (on re-check only 2059). The two issues referred to in our order of
11th November, 2004 (supra) were discussed by the Commission in that
context. The Commission granted monetary relief for ‘the unlawful
cremation of 194 bodies’, who were ‘prior to their death and cremation in
the custody of the police’ by holding the State to be vicariously liable
for the infringement of their rights, to their next of kin at Rs.2.50
lakhs while fixing the extent of monetary relief, the Commission had taken
into consideration not only the violatin of rules / norms for cremation of
194 dead bodies by the police but also the fact that they were in custody
of the police before their death and the police failed to protect their
lives. There is, therefore, no justification to grant any further monetary
relief in the case of those 194 deceased persons. A similar prayer for
enhancement of the extent of monetary relief granted in favour of next of
kin of those deceased persons was rejected by the Commission on an earlier
occasion. That apart, we are informed that the order of the Commission
dated 11th November, 2004 has been put in issue (as regards extend of
relief) before the Supreme Court of India in a SLP. The matter, therefore,
is also sub-judice before the Supreme Court. Under these circumstances, we
are unable to persuade ourselves, to agree with the learned counsel, Shri
Navkiran Singh, to grant further monetary relief of Rs. 1.50 lakhs to the
next to kin of each of those 194 dead persons, who have been granted
relief @ of Rs. 2.50 lakhs.
In our opinion, the submission of Ms. Nitya Rama Krishnan, that the State
of Punjab should take steps to ensure non-recurrence of such acts in
future is quite reasonable. The learned Solicitor General with his usual
fairness did not join any issue in that behalf and rightly so. It 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 upon
human rights of the citizens, do not reoccur. We have no doubt that the
State of Punjab as well as the Union of India are alive to their
obligations in this behalf and would take appropriate steps which would
also restore institutional integrity. We have also no doubt that the State
of Punjab would offer medical/ psychological assistance to a
member/members of any such family, which had suffered as a result of the
tragedy, who approaches it, at State expense so that the healing process
started by it becomes meaningful. In view of the statement of the learned
Solicitor General no further directions in that behalf are as such
necessary to be issued by the Commission.
After giving our careful consideration to the submissions made before us
and the facts and circumstances of the case, it appears to us reasonable
to grant monetary relief to the extent of Rs. 1.75 lakhs (Rupees One lakh
seventy five thousand) to the next of kin of each of the 1051 identified
deceased persons, who were unceremoniously cremated by the Punjab Police
in the three crematoria. The details of those deceased are given as
“Annexure A” to this order.
The State of Punjab shall deposit an amount of Rs. 18,39,25,000/- with the
concerned District Magistrate within three months for disbursement to the
next of kin of those deceased persons, at the rate of Rs. 1.75 lakhs for
each of the deceased.
The manner of its disbursement shall, of course, be as settled by us in
our order of 11th November, 2004 viz.:
“The District Magistrate of Amritsar himself or through the concerned SDM,
shall pay the amount to the next of kin of the concerned deceased. 50% of
the amount shall be deposited in fixed deposit for five years in the name
of the next of kin in a nationalized bank, who shall be entitled, during
the term, to withdraw interest on the fixed deposit. The balance amount of
50% shall be given to them in cash or through cheque against proper
receipt. The disbursement shall be made by the District Magistrate or the
concerned SDM within two months from the date of receipt of the amount
from the State Government.”
The District Magistrate shall furnish proof of payment to the Commission.
We would, however, like to clarify 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 the unlawful and unceremonious cremations of
the deceased, without following the rules, conventions and the
humanitarian law, which actions impinged the dignity of the dead and hurt
the sentiments of their families, lest it should prejudice any of the
parties in the investigation being carried out by the CBI, who has been
mandated to determine the culpability, under orders of the Hon’ble Supreme
Court. The grant of monetary relief by us is without prejudice to any
other right which the parties may have.
We also consider it appropriate to once again reiterate what we had said
in our order of 11th November, 2004:
“Before parting with this order, we would like to observe that after the
unfortunate turmoil in Punjab, things have returned to near normalcy. Both
the State Authorities and the citizens should, therefore, treat this order
as an application of balm to whatever wounds were still left and to engage
themselves to make the State of Punjab more prosperous and peaceful, in
keeping with the great traditions of the State. This order should not be
considered in the spirit of ‘Win’ or ‘Loose’ as, indeed, it is not meant
to be so construed. We hope our observations would be received in the
right spirit and the State Authorities as well as the citizens would
ungrudgingly work towards the prosperity of the State. Peace must prevail
hereafter.”
Questions 2 and 3 are answered accordingly.
This now takes us to Question No.4 which reads thus:
“What relief, if any, can be granted in respect of the unidentified bodies
(List C) or partially identified (List B) cremated by the State of Punjab
in the three police districts?”
As already noticed in our previous order, the case was remitted to the
Commission by the Hon’ble Supreme Court vide order dated December 12,
1996. On 16th October, 1998, the Commission heard arguments from Learned
Counsel of the parties with regard to what they perceived as the proper
scope of inquiry which the Commission was required to under take under the
remit of the Supreme Court. The Commission after detailed discussion
observed:-
“For the reasons stated above, the Commission considers it fair to say
that the scope of the inquiry under the Supreme Court’s direction, is
limited only to those illegal killings / disappearances that culminated in
the cremation of 2097 bodies (585 bodies fully identified, 274 bodies
partially identified and 1238 bodies unidentified) in the crematoria
located at Durgyana Mandir, Patti Municipal Committee Crematorium and Tarn
Taran Crematorium located in the Police districts of Amritsar, Majitha and
Tarn Taran, which were also the subject matter of inquiry by the CBI in
pursuance of the Order of Supreme Court dated 15th November 1995.
Learned counsel for CIIP wanted to ‘reopen’ the issue of scope of the
remit. After hearing learned counsel for the parties, the Commission, on
13th January, 1999 held that the scope of the Commission’s jurisdiction
was confined to matters relating to ‘the alleged unlawful cremation of
2097 bodes in the three Police Districts of Amritsar, Tarn Taran and
Majitha’. A Public Notice inviting claims/petitions from the legal
heirs/next of kin of the deceased claiming that the deceased was illegally
cremated by the Punjab Police was, accordingly, thereafter issued. In
response to the said notice only 88 claim petitions were received by the
Commission. In the proceedings of the Commission dated 15th February,
2001; it was obsereved:
“The scope of this enquiry relates to 2097 cremations according to the CBI
report out of which 585 were identified, 274 partially identified and the
remaining 1238 unidentified. In response to the public notice issued by
the Commission, only 88 claims have been filed. It is obvious that as far
as practicable efforts must be made to enquire into all or as many out of
2097 cremations as possible and for that purpose the necessary particulars
would be required. In respect of 585 cases which according to the CBI
report are identified, the particulars available in the CBI report should
furnish the basis for proceeding with the enquiry irrespective of the
question whether any claim has been filed in respect of them or not. In
respect of the 274 partially identified, the available particulars have to
be utilized for making full identification and obtaining the requisite
particulars to enable the inquiry to proceed. In respect of the remaining
1238 unidentified cremations, efforts should be made to obtain the
necessary particulars in every possible manner so that even in respect of
them an enquiry, if possible, can be held.”
The case, however, made no progress of any consequence and vide its
proceedings of 2nd September, 2003, the Commission granted time to the
parties to verify the details given in the three Lists, A, B and C filed
by the CBI and they were directed to file a tabulated chart in respect of
the persons detailed in those three lists.
On March 17 2004, , the Commission, in the course of its proceedings,
observed:
“It appears to us that for proper adjudication of the rights and for
effective determination of compensation etc. in respect of the cases of
identified and partially identified bodies, it is desirable that the
Commission once again issues a public notice inviting the ‘NOK’ of all
such persons whose names figure in these lists to submit their claims, if
any, or make other submissions in person or through counsel. Even NOK of
persons, other than those mentioned in Lists ‘A’ & ‘B’, who also consider
that they have some claims to prefer in respect of any of their
‘unidentified’ deceased relations, may also likewise submit their claims
to the Commission in person or through their counsel. The claims shall be
accompanied by affidavits of the claimants indicating their relationship
with the deceased and also disclosing the names and addresses of the legal
heirs of the deceased.
Those 88 claimants who had responded to the Commission’s earlier notice
shall also be served with personal notices regarding the next date of
hearing. They shall also be called upon to file affidavits in support of
their claims disclosing their exact relationship with the deceased and
also the names and addresses of other legal heirs of the deceased so that
their claims are also considered properly.”
Public notices were accordingly published on 19th July, 2004 in various
news papers. The Commission received in all 1769 claim petitions. These
were in addition to the 88 claim petitions which had been received in
response to the earlier notice. Most of the claimants are represented by
CCDP. However, Shri Ashok Aggarwal appearing on behalf of the CIIP stated
before the Commission on 23rd September, 2004 that he would not be
addressing the Commission on any individual claim or filing an individual
claim on behalf of any persons but would address the Commission on broader
issues of the case.
As a result of the efforts made by the Commission with the assistance of
learned counsel for CIIP, CCDP and the State of Punjab, as against 582
identified bodies (List A filed by the CBI), the total number of bodies
which have till now been identified and connected with the deceased
cremated by the Punjab Police in the three crematoria Amritsar, Majitha
and Tarn Taran is, as already noticed, 1245. Out of 1245 identified
deceased persons, next of kin of 194 who were found by the Commission to
have been in the “actual” or “deemed custody” of the police before their
death and were unceremoniously cremated by the Punjab Police have already
been granted monetary relief by the Commission by its various earlier
orders. We have, in an earlier part of this order, also granted monetary
relief to the next of kin of remaining identified 1051 deceased persons
who were unceremoniously cremated by the Punjab Police ignoring the rules,
conventions, practices and humanitarian law. Thus, what we now find is
that 814 bodies have still remained unidentified out of List B (partly
identified) and List C (unidentified bodies).
During its proceedings, both prior to and after the 11th November, 2004,
the Commission has been making efforts to identify the remaining
unidentified bodies by requesting for assistance by the parties. It was
stated by the learned counsel for the CIIP and CCDP that despite efforts
made by them they could not furnish any further list of identity of any
one out of the unidentified 814 bodies. Mr.Suri, Learned counsel, on
behalf of State of Punjab also stated that though further field visits had
been undertaken by the Punjab Police and all available records both with
the CBI and the police examined, their efforts have not yielded any
further results. He, however, assured that the State of Punjab would
continue to make efforts to identify, if possible, any one of the
remaining 814 unidentified bodies so that the next of kin of those
unfortunate deceased persons are also able to receive some solace.
On 22nd September, 2006, CIIP has filed one more set of written
submissions on the issue of ‘the Government’s purported failure to
identify 814 bodies’. In the written submissions, ithas , inter alia, been
stated:
“The CIIP had also repeatedly argued, much to the exasperation of the
Commission, for an inclusive approach to generating and verifying
information on the identities of cremated persons, covering all of Punjab,
primarily because the Commission had obtained conclusive evidence
establishing that mass secret cremations had been repeated in other
districts throughout the State and security forces had perpetrated
abductions, custodial torture, and murder without total disregard for
jurisdictional limitations. On the basis of this evidence, the CIIP had
come to the conclusion that all persons from Amritsar who had disappeared
following police abductions may not necessarily have been cremated in
three crematoria of Durgiyana Mandir, Patti and Tarn Taran. As a matter of
fact, in its application to the Supreme Court filed on 24th August, 1999,
the CIIP had attached the municipal corporation records of illegal
cremations at six additional crematoria, all outside Amritsar, from
Faridkot, Kapurthala, Ludhiana, Mansa, Moga and Zira in Ferozepur
district. These records showed cremations of 934 bodies, labeled as
unidentified and unclaimed, which the Punjab Police had carried out.
Although the Supreme Court refused to interfere at that point with the
manner in which the NHRC had chosen to conduct the proceedings in the
case, it is our conviction that by refusing to take an inclusive approach
to generating and verifying information on the identifies of the cremated
persons, it foreclosed the possibility of complete identification of all
the unidentified cremations cited in the CBI’s lists.” (Para 11)
“The petitioner CIIP has consistently argued that the manner in which
these lives were eliminated, even limited to the 2097 cases of
extrajudicial executions, was an attempt by the government to ensure that
the victims’ identity and the circumstances of their murders never became
known.”
In certain other paragraphs reference has been made to some
“illustrations” based on its “report which listed” “cases of police
abductors leading to illegal cremations in Amritsar District”. ….”the
facts speak for themselves and establish custodial torture, expropriation,
harassment of the families, and the undoubted role of military and
paramilitary forces in extra judicial executions. The facts also expose
the functioning of the lower judiciary and the role of doctors”.
Similar submissions had been earlier unsuccessfully raised by the CIIP
both before the Commission and the Supreme Court even earlier and had been
rejected keeping in view the scope of the remit. Reference in this
connection may be made to various earlier orders more particularly the
orders of the Commission dated 4th August, 1997; 13th January, 1999; 14th
March, 1999 and the detailed orders dated 11th November, 2005 on Misc.
Petition No.A 1-9/9 and the orders of the Supreme Court dated 10th
September, 1998 and 11th October, 1999. The above submissions, therefore,
do not require any fresh consideration.
Since, the efforts made, thus, far have resulted into the identification
of many more dead bodies, then those mentioned in List A, as detailed
elsewhere, the Commission is of the view that the possibility of
identification of some more out of the unidentified bodies cannot be ruled
out. Therefore, in the interest of justice, we would like to make one
final effort to identify as many dead bodies out of the 814 unidentified
bodies as possible. For this limited purpose, the Commission now considers
it appropriate and expedient to appoint a Commissioner of the rank of a
retired High Court Judge for receiving evidence and conducting an inquiry
to fix the identity of as many dead bodies, as possible, out of the 814
unidentified deceased persons; subject ofcourse, to the final imprimatur
thereon by the Commission itself. With a view to select a Commissioner,
the Chairman of the Commission requested the Hon’ble Acting Chief Justice
of the High Court of Punjab and Haryana to suggest a panel of names of
retired High Court Judges who would be willing to assist the Commission in
this assignment and conduct an enquiry at Amritsar. Mr. Justice H.S. Bedi,
the Hon’ble Acting Chief Justice vide his letter dated September 22, 2006
has, in response suggested a panel of names.
Keeping in view the need for having knowledge of Punjabi language as well
as Punjabi ethos, the Commission entrusts the inquiry to Mr. Justice K.S.
Bhalla, Retired Judge of the High Court of Punjab and Haryana, out of the
suggested panel, to act as a Commissioner on behalf of the Commission
subject, ofcourse, to the final imprimatur by the Commission. He shall be
paid an honorarium at the rate of Rs.50,000/- per month with effect from
the date he takes over the assignment. He shall submit his report within
eight months from the date of taking over the assignment as the
Commissioner. The State of Punjab shall make available the services of
Additional District Magistrate, Amritsar to act as Member-Secretary to the
Commissioner. For facility of the claimants, the Commissioner shall hold
its sittings at Amritsar.
Hon’ble the Acting Chief Justice of Punjab and Haryana High Court in his
letter dated September 22, 2006 has also conveyed to the Chairperson, NHRC
that he had contacted Shri Gurdev Singh, the District and Sessions Judge,
Amritsar, who has assured him that all possible facilities, which include
the facilities of providing office space in the new Judicial Complex at
Amritsar, would be provided to the assignee Commissioner.
On conclusion of the enquiry, the learned Commissioner shall submit his
findings regarding the identity of the deceased to the Commission, if any,
for further action regarding grant of monetary relief.
In the written submissions filed by the CIIP on 22nd September, 2006, it
has also been stated:
“…….if access and infrastructure is made available to the CIIP, the CIIP
can attempt to identify the 776 bodies. Indeed, it is incumbent on the
State to cooperate with the petitioners and Commissions in this effort.”
(Para 6)
……………
……………
“After thoroughly understanding the scope of the problem, the CIIP made
methodological suggestions and pleas to the Commission in the early days
of these proceedings. The CIIP is now again offering to help identify the
bodies and will gladly work in cooperation with any legitimate and
transparent mechanism constituted to monitor and complete the
identification process.” (Para 8)
The learned Commissioner shall associate Punjab Police, CIIP, CCDP and
such of the claimants, (who had approached the Commission) who wish to
lead evidence to connect their next of kin with any one out of 814
deceased persons while conducting the inquiry.
We direct the State of Punjab and the Punjab Police to offer all possible
assistance to the Commissioner for carrying out the task assigned to him.
So far as other modalities and details for conducting the enquiry are
concerned, the same shall be settled by the Commission in consultation
with Mr. Justice K.S. Bhalla.
(A.S. Anand)
Chairperson
(Shivraj V. Patil) (Y. Bhaskar Rao) (R.S. Kalha)
Member Member Member
This 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.”
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
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.”
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
“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.
We may also at this stage refer to the first Public Notice issued by the
Commission. On 13th January, 1999, the Commission by its separate order
directed issuance of a ‘Public Notice’ inviting claims from legal heirs of
2097 persons alleged to have been “unlawfully cremated” in the three
specified police districts. The format of the public notice formed part of
the order. In the public notice it was, inter alia, said:
“Under the directions of the Hon’ble Supreme Court of India, the National
Human Rights Commission is conducting an inquiry into the circumstances,
leading to the cremation by the Punjab Police of 2097 bodies as
unclaimed/unidentified in the Police Districts of Amritsar, Majitha and
Taran Taran between June 1984 – December, 1994. If, as a result of the
inquiry, it is found that the cremation of the bodies was not in
accordance with lawful procedure or done with a view to destroying
evidence of any offence committed in relation to such person, the
Commission may in appropriate case or cases consider the further question
of grant of compensation to the legal heirs/dependants of the deceased.
For the aforesaid purpose the National Human Rights Commission invites
claims/applications from the legal heirs/dependants of the deceased
claiming that he was illegally cremated by the Punjab Police consequent
upon his or her death in unnatural circumstances.”
(Emphasis supplied)
‘Public Notice’ (supra) was in tune with the consistent view of the
Commission that under the remit, it was required to investigate into
complaints of “unlawful cremations” of 2097 bodies in the three police
districts of Amritsar and in appropriate cases consider the further
question of grant of compensation to the legal heirs/dependants of the
deceased. The CIIP did not question the “correctness of the Public Notice”
A similar notice was once again published in the leading news papers on
19th July, 2004, pursuant to the proceedings of the Commission dated 17th
March, 2004 and the Commission has received more than 1800 claims in
response thereto.
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 g
