2th Anniversary
Year 11    No.109-110


Whither human rights?

The NHRC’s stance in the Punjab disappearances case amounts to saying that the living had no rights but the moment they died, their dead bodies acquired rights! A follow-up report.


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 Constitution.

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 mentioned here.)

(Ashok Agrwaal is a senior lawyer and civil rights activist based in Delhi, and a member of the Committee for Information and Initiative on Punjab, CIIP).



 1 AK Gopalan v. State of Madras (AIR 1950 SC 27).

 2 The Armed Forces Special Powers Act, 1958, which unfortunately continues to remain on the statute books, is an example of one such law.

 3 Maneka Gandhi v. Union of India (AIR 1978 SC 597).

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