During the course of the hearing in the Punjab disappearances
case on July 5, 2005 the National Human Rights Commission, NHRC, reaffirmed that
it saw its mandate in this case as being confined to awarding compensation on
the basis of a scrutiny of the legality (or otherwise) of the cremation by the
Punjab police. In other words, the Commission would like to contend that the
legality (or otherwise) of the killing of these persons is not an area of
concern for it. The Commission took the parties through a series of
orders/observations in an attempt to justify this stance.
It is impossible to agree with this construct, a construct that
amounts to saying that the living had no rights but the moment they died, their
dead bodies acquired rights! If adopted, this position would amount to taking
the fundamental rights (and more particularly, the right to life) jurisprudence
of the country into the dark ages, negating all that has been achieved in this
regard in the last 55 years. Limited though this achievement is in concrete
terms, at no point of time has any court or tribunal of the country come to the
point of denying the right to life in normative terms. It would be absurd if a
human rights commission were to say so, especially in a case that is being
adjudicated upon a remit from the Supreme Court under Article 32 of the
Article 32 is part of the guaranteed fundamental rights
available to Indian citizens and in some cases to non-citizens, subject to the
jurisdiction of the Indian Constitution. Under this Article, the Supreme Court
is obliged to entertain all complaints pertaining to the violation of
fundamental rights and, if found true, provide effective protection for those
rights. One of the rights that the Indian Constitution guarantees to all is the
right to life.
Article 21 says that: "No person shall be deprived of his life
or personal liberty except according to procedure established by law". The
phrase "procedure established by law" lies at the crux of this guarantee. The
Supreme Court started from a narrow, pedantic interpretation of this phrase in
the AK Gopalan case.1 In that case, a majority of the judges of the Court held
that the word "law" as used in the phrase meant "State-made law" and, was not
"an equivalent of law in the abstract or general sense embodying the principles
of natural justice".
In other words, the Court held that howsoever unreasonable, a
law was valid if made by a legislature competent to enact it. Thus, for example,
under this dispensation, if Parliament had validly enacted a law permitting the
State to kill without any judicial process, the circumstances in which such
killing was permitted by that law would amount to "procedure established by law"
and such killings would not violate the guarantee contained in Article 21.2
This interpretation was abandoned in a series of decisions
starting from the 1970s and culminating in the judgement in the Maneka Gandhi
case.3 Thus it was no longer enough to claim that a law was validly passed by
Parliament and had received the assent of the President. For a law to be valid
it had also to pass the test of being in consonance with the "basic structure"
of the Constitution. If a law violated this "basic structure" then it was not
valid law, even if validly passed by Parliament or a state legislature. The
whole of Chapter III of the Constitution, containing the fundamental rights
guaranteed under it, has been held to be part of this "basic structure".
In this manner, the meaning of the phrase "procedure established
by law" was transformed to mean procedure that is just, fair and proper; in
accord with the objects underlying the establishment of the Indian republic and
not just procedure prescribed by Parliament.
In the Maneka Gandhi case the Supreme Court also declared that
the fundamental rights were an expression of what was "indelibly written in the
subconscious memory of the race which fought for well nigh thirty years for
securing freedom from British rule". We hope that the Punjab disappearances case
will not go down as the one that erased this "indelible" racial memory!
Besides, the state of Punjab has admitted before the NHRC, in
affidavits filed in response to the "identified" cremation cases, that "human
rights violation in the present context" can take "two forms". These are stated
as: "i) Where the dignity of the dead body has been compromised and the
appropriate procedures have not been complied with; ii) Where the unlawful death
has been caused by the act of a state/Union employee" When the Punjab government
itself admits that violation of rights can arise from the causing of "unlawful
death" by a "state/Union employee", it is inexplicable why the NHRC should be
disinclined to go into this aspect of the matter.
Not that the Punjab government was itself very good at following
"procedure" while dealing with the bodies of those killed or in respecting the
"dignity" of the dead. An analysis of the affidavits filed by the state of
Punjab before the NHRC reveals gross illegalities in the cremation "procedure"
and complete disregard for the "dignity" of the deceased and their families. The
first fact that stands revealed by these affidavits is that the cremation of
those killed by the police as "unidentified/unclaimed" was a matter of policy.
This has been explicitly admitted in some of the affidavits, where it is stated
that "the dead body was cremated being un-identified and as such, it was not
possible to inform to his next of kins".
In the same affidavit, it is admitted that the body of the slain
person was identified on the spot, immediately after he was killed! This
admission confirms what the Committee for Information and Initiative on Punjab,
CIIP, has been saying since the inception: that the bodies were cremated as
"unidentified/unclaimed" as a matter of policy and not because the police did
not know the identity of the deceased person.
The above admission, when read in conjunction with other facts
that emerge from an analysis of the affidavits filed by the Punjab police, place
this position beyond all doubt.
Ø Over 65 per cent of the bodies were identified before
cremation and of these over 86 per cent were identified on the spot.
Ø Less than seven per cent of the bodies cremated as
unidentified/unclaimed were actually unidentified at the time of cremation.
Ø Despite this fact, the police admit to handing over the bodies
of persons killed by them to the families of the deceased in less than three per
cent of the cases.
Needless to say, there is no rule or legal provision that could
be used to justify the cremation of identified persons as
"unidentified/unclaimed" by the police.
The police record of compliance with the other rules governing
cremation of these persons is equally abysmal. The CIIP submitted a partial
analysis of the illegalities of cremation during the July 5 hearing. The
Commission asked the state of Punjab to respond to this analysis and submissions
within four weeks. Meanwhile, the CIIP is continuing with its analysis and will
submit its further findings on the next date for hearing.n
(See Communalism Combat, June 2005, article titled ‘Et
tu NHRC’, pp. 24-28, for background and details of the case and the issues