CHAPTER FIVE
JUSTICE AT CROSSROADS

"All great truths begin as blasphemies". - Bernard Shaw

Since independence Indian Judicial system has been inflicted with many ills amongst which insensitivity, arbitrariness, judicial delays and corrupt practices have assumed alarming proportions. A growing concern for our justice system is that most of the ills are largely exotic, much too expensive and oriented on methods and goals where the suppressed and the oppressed, are below the visibility line of the law-in-action and does not attract the attention of the judges. More than two million cases pending across the country and judges behaving in a most callous fashion have brought the institution to disrepute. We have truly come to a sorry pass when people feel that judiciary today has become a tool in the hands of the rich and the influential. In this depressing scenario, if still the people opts to knock at the doors of the 'so-called temple of justice', it is only a compulsion, not a choice. The Court meant to dispense justice has become so irresponsive that it does not hear the wails of hundred and thousands of poor and hapless victims of judicial injustice. For nearly a decade now; the Judiciary has been embroiled in the controversy regarding its role of checking human rights abuses and doing justice to the victims of State repression in Punjab.
The role of Indian Judiciary in matters of human rights have always remained on the back seat, with few exceptions like Justice V.R.Krishna Iyer, Justice B.N. Bhagwati and the men of their ilk. A reading of the morning newspaper almost everyday carrying reports of dehumanizing torture, forced disappearances and so-called encounters is indeed depressing. The increasing incidents of fake encounters have assumed such alarming proportion that it seems that there is no Rule of Law and no court is able to check such gross abuse of human rights of the people. This casual approach and inaction of the Indian judiciary affected the credibility of criminal justice system. The community rightly feels perturbed. Society's cry for justice has become louder.
Fake encounters, inhuman torture and making any innocent person 'disappear' strikes a bodyblow at the Rule of Law which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. It is aggravated by the fact that it is committed by the persons who are supposed to be the protectors of the citizens. Crimes of heinous nature are committed in Punjab under the shield of uniform and authority in the four walls of a police station, the victim being totally helpless. No judge or lawyer ever cared to ensure compliance of various judgements of Supreme Court in ensuring human rights to the hundred and thousands of undertrials languishing in jail without trials, victims of police and prison torture and numerous people killed in police custody, communal and political riots, although much has been said on the subject. Sensitivity of the judges has sunk to an abysmal low, and all they could do is ruthlessly ensure that the laws on statute books, as far as its applicability in Punjab is concerned, are kept in storehouse. Pretty soon, the lower magistracy and civil administration were toeing their line. It would not be gainsaying the fact that the judiciary in Punjab appeared to have closed its eyes at the police atrocities which has subverted the process of law. It behaved in the manner unexpected of the trustworthiest organ of Justice delivery system. None has the courage to ask a Policeman "Could you justify behaving in the same manner as the criminals do?" If it were true that the Judges in Punjab acted under fear of militants, it is also not false that the Police had more "control" over Judiciary while dealing with the Sikhs. Law those days was not the same for both Sikhs and the Police. It may be partisan to either of the two, but the constitutional guarantees of the people were blown to winds. A pointer case, which could well explain the mindset of the Lower judiciary those days, is of a Sikh Youth of Morinda in Distt. Ropar named Parminder Singh alias "Heera" who was picked up by Chandigarh Police in 1993 under the instructions of the then Senior Superintendent of Police, Mr. Sumedh Saini, and subjected to inhuman third degree torture during a week long illegal detention. He was produced before the Court of Judicial Magistrate at Chandigarh for a 10 day Police remand, while his face was seriously injured with blood oozing out of every part of his body and eye lids badly scratched and he was crying with pain, but the Magistrate who seemed to have "prior information" about the accused, remanded him to Police custody for a week without affording him any medical treatment or legal aid. Such was the pressure on the Judge that not even a minute was spared for calling a lawyer. The Courts routinely used to give Police remand of the suspects termed as "terrorist" without any justification or procedure of law. However, claiming fairness, the State agencies do not deny this allegation, but lay their hand on a different situation where the Judge preferred to take leave than to give police remand to the hardcore militants produced before them after receiving threatening calls.
This indifferent attitude of the judiciary in Punjab, is mainly responsible for eroding the faith of the masses in judicial integrity leading to a big credibility gap in the wisdom, impartiality, honor and truthfulness of their findings. If a judge was wrong in favoring the militant produced before him, what is to be said of a judge who failed to appreciate overwhelming evidence of police excesses, still condoning it for inexplicit reasons? Who failed to administer justice according to the laws of the land for over a decade in terrorist-related cases? It is really a sad question haunting every justice loving person. Why our Judges have become so perverse minded towards the genuine grievances of the victims and occasionally tilts the balance in favor of the wrongdoer breeding contempt for law ? In this exercise, the institution completely succumbed to the police pressure mainly due to their selfish appetites, opposing have-nots and abetting massive injustices salving his conscience by some dubious or untenable sophistic precedent, which has put us all to shame. The judicial institution is completely under the grip of legal chaos and jurisprudential failure. Human rights have not been given the right meaning and place in the administration of justice. Injustice is writ large. The judiciary has consistently failed to ensure that proper investigations--a pre-requisite for bringing the criminal to justice-are held in cases of fake encounters. The result is that very few policemen were brought to justice for their acts of cruelty. The government and the bureaucracy also did nothing or very little to arraign the guilty. If the brutality had not attracted much attention, it was ignored. During the year 1990-96 as many as 2367 writ petitions seeking CBI inquiry into the disappearance or killing of Sikh Youth in false police encounters by the Punjab police were dismissed in limine by the Punjab & Haryana High Court on flimsy grounds. If the matter had drawn media attention, the least the court could do was to order a judicial or CBI inquiry. Yet, no inquiry made any difference to the victim's family. Nor did it restrain the police from repeating the act.
Judges even today adopt a hostile attitude against the litigants. To them every case poses a cold question of law. It is a period when there is a lawyer sans justice, a judge sans humanism and a humanist sans philosophy. The courts believe in camouflaging opinions with silky platitudes. They fail to understand that a judge has an activist role to play. They do not have to merely hear the case but have to activate the flow of justice.
Can anybody tell, why any institution failed to take cognizance of the first ever invasion by Indian Army into the highest religious temple of Sikh community in Amritsar and committing murder, rape, plundering the wealth of the Sikhs and looting more than 25,000 innocent pilgrims in June, 1984? It was felt that the Indian judiciary had become completely oblivious to the unprecedented bloodshed and not even a single judge across the country found the courage to condemn such barbaric act and take judicial notice of such inhuman and heinous crime against humanity, or it had adopted 'could not careless' attitude justifying all that was happening in Punjab on the orders of the Central Government ? If any of the above circumstance were correct, then it is indeed a matter which every body concerned with the institution must feel ashamed of. It has raised serious questions on the integrity and competence of the judiciary. Justice Jagannath Shetty of the Supreme Court even went to the extent of observing in his concurring judgement in the matter of assassination of Indira Gandhi. He wrote:
"The Blue Star Operation was not directed to cause damage to Akal Takht. Nor it was intended to hurt the religious feelings of Sikhs. The decision was taken by the responsible and responsive government in the national interest."
The mass genocide of Sikhs in Delhi and other parts of the country in November, 1984 after the assassination of the Prime Minister also failed to move the judges of our land. While Sikhs were running for their lives and mobs chasing every turban clad person like a cat running after the mouse, no judge thought it fit to use his good offices to prevent further loss of lives. Where were Justice Ranganath Mishra or Justice G.T. Nanavati or all other judges on November 1, 1984 when the whole city of Delhi was burning and thousands of Sikhs were being massacred in a grisly fashion? They did not do anything when they could have done everything because of their position. Still we people expect everything from these insensitive and stone heart judges? What good they would do after sixteen years of the tragedy is anybody's guess. Only people having respect for human rights like the legend of constitutional freedom and a true humanist, Justice V.R. Krishna Iyer are competent and really willing to do something. It was only he who had the courage to say that,
"When the history of Human Rights in India for half century comes to be written the most blood-stained pages will be reserved for the three deadly November days in the life of the nation..... Where is law ? Where is justice? What is the truth ? Lying dead in the streets of Delhi's democracy ? Where are the guilty? Untouchable and unapproachable in high offices ? How can the highest in the executive and members of the Supreme Court ever command the confidence of those who have concern for fundamental freedoms when mass casualty of human lives and rights remain a poignant interrogation?"
The decision of Supreme Court in sentencing Satwant Singh and Kehar Singh to death, for killing and abetting the murder of Smt. Indira Gandhi, the former Prime Minister of India, shocked the nation's conscience. If the Supreme Court had unabashedly taken pride in the sickening executions, the majority of people had taken it with undisguised glee. The judgment of this type has completely exposed the mindset of the judges and their venomous outbursts made in the judgment have wounded the entire Sikh nation. What invests the entire sordid situation with macabre irony is the fact that Kehar Singh was neither guilty of the murder, nor the conspiracy. He simply happened to be known to Satwant Singh and Beant Singh, that's why Kehar Singh could not withstand the gross injustice of awarding death sentence. Mammu Singh, popularly known as Mammu Jallad (Executioner), who conducted the hangings of Satwant Singh and Kehar Singh, made a heart touching revelation during an interview. While recalling the events of the day of hanging, he said, "both Satwant Singh and Kehar Singh were brought in together. While Satwant Singh had no expression on his face as he stood motionless, waiting for the inevitable, Kehar Singh was too depressing. He collapsed there. He pleaded to be allowed to speak to Satwant but the request was turned down." When some innocent is hanged for no fault, remorse and depression is inevitable. Perhaps, Kehar Singh who had nothing to do with the assassination was in the same state. One important aspect ignored by the apex court while applauding Operation Blue Star, and to condemn the assassins of Indira Gandhi to death, was that every person who resisted army's entry into the Golden Temple Complex was acting in self defence guaranteed under section 96,97,98 and 100 of Indian Penal Code which confer on every person, a right to defend his body and property or body and property of any other person. Section 96 clearly lays down that nothing is an offence which is done in the exercise of the right of private defence. Court failed to deal with the case in a realistic manner and with the leniency that the two accused deserved. It was indeed a sad day. This grossly biased manner of dispensing justice by the highest court of law recalls similar mistakes done by it in the past, that brings the murder of justice to fore. To many, the two were given such extreme punishment only because they were Sikhs. If one day, the other judges sit over the judgment of the apex court and hold the judgment to be erroneous, can anybody undo the wrong done to Kehar Singh? Can anybody return his life, much less the present Supreme Court Judges? By no means, the judiciary in the country can be allowed to stay away from a set judicial precedent which lays down standards for awarding death sentence only because the accused belonged to a particular minority community. If the Court is right in holding that, 'the accused committed the murder of the most honorable leader of the country, Mrs. Indira Gandhi', and termed it as a rarest of rare case demanding death penalty, then why accused in the 1984 Delhi Riots case were treated differently? What different crime Kishori, a convict who burnt to death four innocent persons on November 1, 1984, had committed? But Kishori's act, according to the apex court was not so heinous and inhuman, as to justify death sentence. May I ask My Lords, Why ? Simply because Kishori had killed the Sikhs and Satwant Singh's victim was a Hindu ? Was the life of a Prime Minister costlier for the nation than the four innocent persons of minority community who fell victim to the madness of a hindu fanatic ? Does life of two different persons has different meaning in the eyes of Supreme Court ? The answer to these questions must be an emphatic "No".
The approach of the judiciary since long is a story of wobbling. Their role as sharp instrument to suppress or retard the justice due to the people, changed. Instead of standing as a bulwark of democracy against the unconstrained depredations of the security forces, the judges sacrificed their ethics and compromised with the corrupt system. At this time, the actions-or the failure to act-of every other branch of government demonstrated their abject surrender before police might. Their focus on self and flexible rules justifying the extra-legal actions of the Punjab police, their malpractice absolved by the judicial hierarchy, their apathy towards the wails of victims have won notoriety for the calling. Few judges who dared to talk of the law found themselves target of a sustained and vicious campaign of calumny, of institutional hostility and state indifference. The Judges who indicted policemen for committing excesses and convicting them in accordance with the established principles of law were sidelined and ignored from being elevated to the High Court. Most of these judges were Sikhs and their confidential reports were spoiled with adverse remarks by the Intelligence agencies for having soft eye towards the militants. The ultimate irony is that the instrument and institution of upholding the law was arrayed against the very people who respected them the most. In the bargain, the law itself and the legal process had fallen into disgrace. The suspects were being denied even the basic minimum of an impartial investigation and competent defence. There was a consistent failure on the part of the higher judiciary to ask the basic question from the lower magistracy as to the undeclared submission to the police might. But who cares for the right? The existing legal system has reached a breaking point, not because as many seems to think, of delayed procedure and out-dated laws-that is a problem which can be solved-but because the system proved itself incapable of delivering the goods, and also of doing justice under fear or favor of the police force.
The real question which arises is that will our judiciary gag with contempt writ any effort to scan the orders and judgments of the High Court and Supreme Court ? The dead silence maintained by the Courts in the matter of State repression is unfortunate. It is a pity that we have somewhat sick judiciary with a serious disease, more serious than the cancer. It remained unfazed by the increasing frequency and variety of custodial violence. The crisis in the judicial system, the collapse of values in this organ of justice, the inner tension "red in tooth and claw", the corruption that makes for sensual indulgences, the barbarities that harden the innocent and never heal them-all these processes should be reviewed and humanization resorted if, only if, our philosophy towards crime and punishment change. If vengeance is the spirit of punishment, violence will be the society's way of life.
It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law. Today many suffer from remediless evils which Courts are incompetent to deal with. Justice cried in silence for long, for too long. The procedural wrangle had completely eroded the faith of the common man in our justice system. It is a criticism which every objective thinker must make, if the damage control measures are to be adopted. The maladies of the system in search of urgent remedies are many and and one will be a dope to hope that by tinkering with law, courts and lawyers, all will be well. The practice of law faces a moral, nay, spiritual crisis, and problems abound which threaten to break up its integrity, dignity and authority. We mean, the attitude of the judges in throwing away the case files and even sentencing frustrated and distressed litigants and lawyers for contempt without affording 'right of defence". If the judges continued conducting themselves in this manner any more, they will hold people's justice to ransom, and their effectiveness thrashed to ground. Every body is realizing that standards of conduct of the judiciary have collapsed. Professional mal practices, overseen by peers, flourished and disciplinary action never proved a deterrent. The Courts scared away people and the severest sentence for them was not death penalty, but the deathless litigation preceding the case. To be truthful, the real villain is not the individual judge but the whole decrepit, petrified, amoral and value-neutral system-a fallout of long judicial callousness. It is in this perspective that the instrumentality in which they work needs overhauling, restructuring and democratizing. A stern audit of every judge's conduct is an urgent desideratum. If he remained unconcerned when human injustices of blatant breaches are committed or are afraid to intervene browbeaten by police power, he has betrayed the trust and deserves right action. Precisely this happened in Punjab in the earlier days. Independence of judiciary was seen by many judicial officers as a professional luxury, rather than a necessary insulation. Uncontrolled by various viral and immunization from executive and police authority, the monopoly conferred upon them was stultified . It has been rightly said that " where judiciary is partisan, there tyranny is unbridled. Tyranny cannot be reformed. It must be abolished."
We know that, with all our unpleasant criticisms and heretical proposals, there is a good case against us for blaspheme.
The system has been so disgraced by a decline and fall in social conscience, self-above-service ethics unprincipled and ill-prepared judgement and stoop-to-conquer tactics. The beginning of the end is in sight and the time to arrest the rot has come. More, the institution is rapidly loosing its esteem because it has recklessly abused its monopoly. Words like ethics, values and principles ceased to have even the minimum meaning they possessed in the fast degenerating society. There is evidently a sad decline in standards of our judges. There are no instances when the judges lashed out collectively against grave judicial misconduct or battle against the odds which mis-ruled the erring magistracy. When did Indian judiciary showed demonstrative concern against arrogance and arbitrariness of the Bench, handpicked partiality and vicarious nepotism, with close relatives of the judges becoming alleged beneficiaries? When did the institution shake itself up when human rights of the people suffer homicide and trust of the victims suffer irreparable loss?
In a democratic country, the conduct of every arm of government, every wing of the state, must be subject to review. And yet, the conduct of the judiciary throughout the years of repression in Punjab has completely escaped examination.
The situation in Punjab during the period 1984-1995 was the worst period of bloodshed in this century. If the State government and the security forces were to be blamed for subverting the process of law and eliminating hundred and thousands of innocent people in fake encounters, forced disappearances and summary executions, the State judiciary was equally responsible for abdication of duty. The Courts completely lost sight of the fact that death in police custody is perhaps one of the worst crimes in a civilized society governed by the rule of law and poses a serious threat to an orderly-civilized society. It flouts the basic right to life of the citizen and is an affront to human dignity. It has undoubtedly tarnished the image of Indian judiciary and encouraged the men in "Khaki" to consider themselves to be above the law and sometimes even to become law unto themselves. Failure to take any punitive measure, shook the foundations of the criminal justice system and civilization itself risked the consequences of heading towards perishing. Though the framers of the constitution did make a demarcation of powers and functions between the three organs, the distinction was never adhered to. The saner element in the judicial circle has by now realized that the judiciary those days used to behave, as Justice Staple once observed, 'like mice squeaking under the home minister's chair.' Consequently, at times the judiciary had been found accusing the Punjab police of intruding into its domain. The PCS Officers association even came on record by mentioning in its memorandum to the Governor of Punjab in August, 1993 that, " the magistrates were repeatedly approached by the people highlighting the blatant atrocities committed against the innocent just to extort money. Whenever they tried to intervene, they were snubbed and the complainants were brutally dealt with by the Police, as a result of which people became so terrified that even the Khula Darbar (Open Court) of the Governors could not attract any complaint against Police atrocities. It needs to be enquired how the people's complaints against police were silenced and steps to be taken for redressal of grievances against the police were thwarted. But it's also a fact, that a most unfair degree of "free hand' was granted to the police by every organ of administration and even by the judiciary which gave unquestionable power to them and assured them immunity to even judicial accountability. To put it more bluntly, an impression was gaining ground that every act of barbarity done by the police in Punjab had the approval of the judiciary. It would not be gainsaying the fact that the judiciary had submitted itself to the will of the police perhaps in assisting them to 'fight terrorism'. In propagating this policy, they allowed such arbitrary and discriminatory immunity to the police especially as it mitigates against the Criminal Procedure Code which does not provide special immunity to them against custodial crime. There was a rising annoyance against the judges who justified the police action of 'summary execution' of innocent Sikhs. None among the thousands of judges protested at this uncivilized practice of their superiors.
It was a period when the state was run by the gun and not by the law. The lives of the people were in danger and the fundamental rights put in abeyance. Nobody knew as to when and where he would fall to the bullets of militants or the police. Any body picked up by the police was treated as 'missing' forever. Even the police while taking a suspect with them, used to tell the relatives to perform the last rites of the victim. There was no remedy or way left for the helpless family members to seek the release of the victim. Instead of knocking at the doors of the Courts, they chose to sit at the gate of either the police station where the victim was detained or at the feet of the same police official who had picked up their near and dear ones. Even fulfilling the 'demands' of the police could not ensure the safety and liberty of the victim. After a decade of an uneasy balance between the judiciary and executive on the one side and police and criminal on the other, the scale was then clearly tipped in the favor of the police. And that had got the executive and the judiciary worked like a flock of sheep in the hands of Punjab police. Every rule in the book was broken while dealing with the cases of Sikh militants in Punjab. By this bias, the nobility of the institution was denigrated. When human dignity is wounded as in Punjab everyday, civilization takes a step backward-flag of humanity must on each such occasion fly half-mast.
Courts were receiving hundreds of cases of forced disappearances, police highhandedness and brutality practiced by some overzealous police officers committing inhuman, barbaric and archaic acts. But remorsefully, one has to say that the Courts were too casual to condone their misdeeds. By approaching the Courts they would simply get their petitions dismissed in limine on totally whimsical grounds. In very few cases, the Courts issued notice on the habeas corpus petitions, but dismissed soon thereafter on receipt of police reply that the detainee is neither in police custody nor wanted in any case or that he was a hardcore terrorist who had been killed in inter-gang rivalry. Police officials sitting in the Police Stations with the same detainee, usually boasted to their relatives that it was only a matter of a day when their affidavit would be filed in the High Court and the court will dismiss the petition admitting their version as gospel truth. In very few cases, where the Supreme Court and the High Court, after considering the gravity of the crime, ordered a CBI or judicial inquiry into elimination of innocent people in fake encounters, police officials who were never arrested or suspended got favorable inquiries by tampering with the evidence and bribing the inquiry officers. However, even this little bit of judicial interference was enough to raise undercurrent in the police circles and they launched a sustained campaign for seeking a free hand in dealing with the militants. The judges were approached and pressurized to decline the petitions of police highhandedness, in the name of a proxy war for protecting the security and integrity of India. They were convinced that these Sikhs have waged an open war against the country and if they are not killed, they will kill the entire nation. Punjab police had succeeded in wresting back its control at every level of judiciary in the State. After this, the situation deteriorated to an abysmal low. When extra-legal acts of Punjab police were escalating and thousands of people looked for some help of the State as well as courts, the Courts which owed a sacred duty to the society, ignored their tragic stories with a cold face. The courts were firstly reluctant to take up these matters on the ground of delay and latches or lack of material evidence. Daily, petitions filed to know the whereabouts of the 'missing' or inquiry into fake encounter were got dismissed by the Punjab & Haryana High Court and Supreme Court. The lower magistracy used to please the police by accepting reports of 'encounter-deaths', 'escaped from custody' or 'killed in the cross-fire', knowing fully well that those were concocted. Everyday, police remand of 'suspected terrorist' was given on trumped-up-charges when the judge used to get call from the police with pressing request for police remand. There are numerous instances of the magistrates repeatedly ignoring their legal duty to act when detainees claimed that they have been tortured or appeared in court with clear signs of torture. In almost every case, the judge used to refuse a proper medical examination when a detainee alleged torture by the police. In doing so specific provisions of Code of Criminal Procedure were blown to winds and inspite of seeing clear evidence of torture when detainees were produced before them by the police for seeking police remand in some other case, the judges used to oblige the police officials. Cases of magistrates issuing false reports supporting police version of events in the face of overwhelming evidence to the contrary were quite common. In many cases judicial magistrates-who are judicial officers appointed by the High Courts and are subject only to judicial control- have been seen hand in glove with the policy in the attempt to conceal the truth. By condoning the acts of barbarities and inhuman torture in police custody, the courts accomplished the tasks which were forbidden by our legal order. No law can permit it.
This lackadaisical attitude of the judiciary encouraged lawlessness and every policeman was having the tendency to become law unto himself thereby leading to anarchism. The human rights groups strongly criticized the lower judiciary for having failed to respond and exercise its jurisdiction to inquire into the allegations of third degree in custody. The Courts exhibited a total lack of sensitivity while appreciating the role of police authorities in fighting terrorism, instead of hauling them for their extra-legal acts. Extra-judicial killings which of late were on the increase, became an order of the day and the Punjab police received tremendous encouragement and reinforced the belief in their minds that no harm would come to them, if any odd person dies in their custody. The question repeatedly asked in this context is, " Was the judge justified in allowing police remand or admitting the final report of armed encounter? That shouldn't be surprising ! There was no dearth of fanatic protagonists willing to junk the concept of human rights from the Indian Constitution. To them, "there should be no mercy for a terrorist who does not have mercy on the innocent people'. Whosoever talked of human rights was considered soft, or worse, unpatriotic. The situation was so horrible that even the judges were cynical of the rule of law; they had little regard for the efficacy of their own justice delivery system which they were duty bound to uphold; they believed in giving greater freedom to the police to resort to extra-legal methods while eliminating terrorists from the land. It is evident that the judiciary was discriminating between the common man and the police in favor of the latter. It has remained a silent spectator to the sufferings of the people. This attitude has caused greatest injustice. Legal experts point out that the capacity of these insensitive judges, to do damage is incalculable because of the vital position the judiciary occupies in our justice system. How does this happen? Who did this brainwashing of the entire system? The looming specter of terrorism is, of course, a standard excuse to throw civil liberties to the winds. Most of the judges believed that in 'hostile situations' the police was justified in resorting to extra-legal methods or in even denying fundamental rights to terrorists and insurgents. The number of judicial officers brazen enough to condone fake encounters was comparatively more, but there were few others too, who considered it to be an 'extinction of a species'. Due to this attitude of the higher judiciary, people felt disillusioned with the law courts. As was feared, the public was accepting widespread lawlessness as an unavoidable adjunct to the way of life.
Where injustice verging on inhumanity, emerges from hacking human rights guaranteed in the Constitution and the victim beseeches the court to intervene and relieve, the Court became a functional futility as a constitutional instrumentality for its guns did not go into action against the wrongdoer, out of fear or favor. There is compelling evidence that the police and security forces in Punjab, felt free to act with impunity in violating the rights of those in their custody. It was possible because of an informal but nevertheless pervasive system of judicial complicity in covering up human rights violations. Several well-established procedural techniques for evading prosecution for human rights violations provide informal but effective impunity for police and security forces throughout the country. These include systematic cover-up of human rights violations by the police, the security forces and the government. The police regularly resorted to a range of techniques to cover-up instances of custodial violence; failure to register complaints, acknowledge detention or to apply other legal safeguards; denial of responsibility; falsification of judicial records and post-mortem reports sometimes by having them carried out at police hospitals; intimidation of witnesses and complainants; and influencing police inquiries by having them conducted from the same branch and delaying their outcome and prosecutions. It was not the police alone that used these methods, they often relied on the active complicity of doctors, executive magistrates and other officials who contributed in cover-ups by writing false reports or suppressing evidence of police torture.
Due to this, social order had virtually failed and there was no regard for the human rights anywhere. The judiciary even at the highest level had failed to prevent and punish brutality by police methodology. Resultantly the credibility of the rule of law in our Republic vis-a-vis the people of the country deteriorated. Daniel Webster words starred at the face of the judge with regret--
"Justice.... is the greatest interest of man on earth. It is the ligament which holds civilized beings and civilized nations together.... Justice is the end of a government. It is the end of the civil society. It behooves us, therefore, to bring into friction, justice which is truth in action and makes the legal system in each country viable as an instrument of national fulfillment. It becomes crystal clear that in any system of administration of justice in which a party is the judiciary -particularly when there was only police force with absolute power over every organ of administration of justice-law becomes a casualty." No judge can boast of being always right. The important thing, however, is that the court must enjoy the respect of all those who enter its precincts and inspire confidence in them that justice here is administered with an even hand, in any legal combat between the rich and the poor, between the mighty and the weak, between the state and the citizen, without fear or favor. Going hostile to the conventional wisdom and experience that judges should not be amenable to fear or favor, every right or wrong decision was being rendered by the judiciary without being asked anything. It is regrettable that certain findings unfortunately facilitated the carrying of extra-legal acts by the police."
The Judge is an activist, though impartial, chasing truth, wherever it lies hidden, and determined to decide to the best of his ability as an independent yet humane, stern, not soft, adjudicator. It is wisely said that the duty of a judge is done only when the truth is won. It was to play an activist role in fighting the injustices the people bear at the hands of Punjab police. The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. A righteous judge uses the rule of law and moulds the legal system so as to deliver to every member of the populace, even the humblest have-not and the depressed pariah, his constitutional title to justice. We must demand justice, human rights and values of democracy and fight the lawless laws that diminish or destroy social and political justice. We must stand for the writ of justice. The justice should be restless unless it reaches towards common humanity, renews its resolve to stand by tormented man, to resist the terror unleashed by the arrogance of Power and to radicalize jurisprudence to serve the new dimensions of human justice.
Justice Krishna Iyer's warning to the present day judges has been buried in the graveyard. He said, "You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man may commit, he still is a human being and has feelings.... if you treat a man like an animal then you must expect him to act like one. For every action there is a reaction. This is only human nature. And in order to prevent a person from becoming militant, you must treat him humanly. Treating him like an animal will only get negative results from him. You can't spit in his face and expect him to smile and say thank you. Suffice it to say that, so long as judges are invigilators and enforcers of constitutionality and performance auditors of microcosm called injustice by the mandate of the Court, a continuing institutional responsibility vests in the system to monitor the incarceration process and prevent security 'excesses'."
It is an obligation of the law enforcing organs to ensure that, there is no infringement of the indefeasible rights of a citizen to life except in accordance with law while in police custody. There is even more greater responsibility on the judiciary to ensure that the citizen in police custody is not deprived of his right to 'life and liberty'. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the judge is strict and admits no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life in an extra-judicial fashion.
It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops.
Police is, no doubt, under a legal duty and has a legitimate right to arrest a suspect and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit torturing or even killing of the terrorist or any criminal for that matter, in the same manner he killed others. End cannot justify the means. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? These questions touch the spinal cord of human rights jurisprudence. The answer indeed, has to be an emphatic "No". Here lies the positive role of a judge. He cannot sit silent if in the name of 'fighting terrorism' human rights are hacked. He must understand that we live in dangerous days when tyranny tortures democracy and skin-deep democracy double-speaks and legally strangles life and liberty. In ensuring a judgment free from fear and favor, a judge no doubt runs grave risks, challenges authoritarian writs and seeks deliverance for the people through the process of the fundamental law. The law cannot and should not sit with folded hands when the adversary system operates as the adversary of poor man's justice. Law is the means by which established injustices are sanctioned. Above all, as the servant of social justice, as the constitutional sentinel of people's deliverance and as the auditor of the justice processes of the Republic, a judge has a challenging identity, inspiration and vision binding him to the larger cause of humanity. In tough words, a 22-carat judge is a dangerous man in action with law as his missile, truth as his dedication and justice as his battle cry. India, at this hour of crisis, badly needs this breed of judges. The Courts have an obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.
Many cases establishing a fake encounter or falsified police version beyond doubt when brought to the Courts notice, evoked a lukewarm response and in some cases where police excesses were writ large, the Courts did order Judicial or CBI inquiries. In most cases of judicial inquiries, the Courts belied the police version and recommended further inquiry by an independent agency. But the CBI inquiries in majority of cases were not conducted with due diligence and many cases remained unsolved as was the case of. three lawyers, Ranbir Singh Manshaia of Bathinda, Sukhwinder Singh Bhatti of Sangrur and Jagwinder Singh of Kapurthala. In cases where the CBI was directed by the court to Chargesheet the guilty police officials and bring them to justice, the police officials involved in the crime were either not arrested and if arrested, admitted to bail without any objection being raised by the CBI The trials of many of these cases are still pending due to indifferent attitude of the CBI and the perpetrators of most heinous crimes are roaming Scot free. It has defied the very spirit of natural justice where sagacity is the first casualty.

CASES OF JUDICIAL MURDER :-

1. Two Sikhs Harjinder Singh "Jinda" and Sukhdev Singh "Sukha", wtih no previous criminal record were arrested and tried for killing General A.S.Vaidya, the retired Army Chief who carried out the attack on the highest religious temple of the Sikhs, The Golden Temple, Amritsar. They had no personal enmity or rivalry with the General and out of anger and to take revenge for the attack on their religious temple, both of them shot the General dead on August 10,1986 at Pune. Both Sukhdev Singh Sukha and Harjinder Singh Jinda were convicted for the murder and sentenced to death by Vasant L.Rukar, Designated Judge, Pune which was confirmed by the Supreme Court. They were finally executed in Pune on 9th October, 1995. They are widely considered second among the line of Sikh freedom fighters sacrificing life for protecting the dignity of the religion, first being Beant Singh and Satwant Singh who killed Indira Gandhi, the former Prime Minister of India. The Supreme Court refused to hear even the simple argument of the defence that their act was a result of provocation, because they considered the General responsible for the attack on their religious temple and their religious feelings got hurt and under the influence of the feeling of revenge in their heart, they killed him, and ignored their own judgement in the case," Apron Joseph Versus State of Kerala"(A.I.R. 1973 SC 1) in which it held that " the determination of sentence in a given case depends on a variety of considerations, the more important being the nature of the crime, the manner of its commission, the motive which compelled it and the character and antecedents of the accused." In another judgement titled," Subbiah Thevar Vs. State of Tamil Nadu", the apex court observed that, " the altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. In these circumstances, we feel that the extreme penalty of death was not called for and that lesser sentence of imprisonment for life would meet the ends of justice." But jurists fail to understand why this precedent was not followed in the present case which was quite similar. Because the accused were Sikhs?

2. Rupan Deol Bajaj, an IAS cadre officer of Punjab was misbehaved with by none other than the former Director General of Police, Punjab, Mr.K.P.S. Gill, under the influence of liquor at a dinner party in Chandigarh on July 18,1988. The First Information report registered on the basis of her complaint and the private complaint filed by her husband against the mighty police officer were quashed by the Punjab & Haryana High Court vide a 'worst judgment' of the times in May,1989. The dejected lady could not bear the embarrassment and humiliation of being victimized in judicial battle and filed a petition in the Supreme Court against the judgment of the High Court. She had to fight for eight long years before being referred back by the Supreme Court to the Chief Judicial Magistrate, Chandigarh for trial of the accused. It is indeed a matter of ignominy that even a case where concrete evidence of outraging the modesty of a woman is available, the trial court and the High Court can dismiss it on technical grounds and the victim is left remediless. What would be the fate of an ordinary woman, when there may not be as sufficient evidence and money to fight the case as she had, is anybody's guess ?

3. Sarwan Singh, son of Gurcharan Singh, resident of Village Ladhuwal, Distt.Gurdaspur was booked for murder and was made to surrender by his relatives before the DIG Border Range, D.R. Bhatti on 31.1.1993. He had assured the safety of the suspect to his relatives. But was killed in police custody on 3.2.1993. His relatives had seen his dead body being taken out from the CIA Staff premises in Gurdaspur. The body bore marks of torture and established that he had died due to torture in police custody. But newspaper reports quoted the police as saying that Sarwan Singh had escaped from police custody when the police party taking him for the recovery of arms was ambushed. An F.I.R. was also registered in the Police Station in this regard. At another point of time, it said that while crossing over to Indo-Pak border, Sarwan Singh had been killed in the crossfire by Pakistan Rangers. The matter was taken to the Supreme Court by the wife of Sarwan Singh and after finding different police stories on each occasion, the Supreme Court ordered a judicial inquiry into the killing of Sarwan Singh. Ironically, after six years of legal battle, the petition was ultimately dismissed by the Supreme Court on the ground that the Sessions Judge had not given a clear finding that the victim had indeed been killed by the Punjab Police. It is pertinent to mention here that the Sessions Judge, Gurdaspur after examining more than sixty witnesses from both sides, described in clear words, the police version as palpably false and indigestible. Surprisingly, the report of the Sessions Judge had been concealed from everybody and ordered to be kept in a sealed cover in the case file so that nobody could know the findings of the Sessions Judge and the extent of exercise done by him. The proximate reason for this may be that the bench which heard the petition at the final stage was headed by none other than the controversial Chief Justice M.M. Punchhi who had his sons practicing law at Chandigarh. It was believed that the guilty police officials had paid hefty amount to the kin of the Chief Justice for some job few days before the judgment.

4. On January 25,1993 a young lawyer Kulwant Singh practicing in District Courts, Ropar along with his wife and two years old child were abducted and killed by Ropar Police. Reason: he was defending suspects of terrorist activities against Punjab police. Police denied having arrested the couple and falsely implicated one Harpreet Singh Lucky and held him responsible for the killing and throwing the dead bodies of the trio in the Sirhind Canal. Lawyer fraternity all over the region protested against this murder of the lawyer, his wife and two years old son and belied the police story. A related petition was filed by a litigant against the lawyers strike. The High Court Bar Association also intervened to be impleaded as a party and it was vehemently demanded that an independent inquiry may be ordered in the kidnapping and murder of the lawyer family. But the five-judge constitutional bench of the High Court dismissed the plea of the lawyers leaving them high and dry. The Bar Association filed an appeal in the Supreme Court which ultimately ordered a CBI inquiry into the gruesome murder of the lawyer and his family. The gravest form of error and inhuman approach adopted by the High Court to the flagrant violation of human rights of the lawyer family even provoked the Supreme Court to pass strictures against the High Court and reprimand it to be careful in future. It said:
" The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution. After giving our thoughtful consideration to the facts and circumstances of this case, we are of the view that the least the High Court could have done in this case was to have directed an independent investigation/inquiry into the mysterious and most tragic abduction and alleged murder of Kulwant Singh Advocate and his family."

5. Bhai Kanwar Singh Dhami, his wife Kulbir Kaur and seven years old son Randhir Singh were kept in illegal detention from March 1993 till March 1994. During this long incarceration, they witnessed many heinous crimes and custodial killings. They were themselves brutally tortured and forced to admit surrender. A high level surrender drama was enacted in Govt. Officers Mess in Chandigarh on March 29,1994 where a press conference was called by K.P.S. Gill, the D.G.P. of Punjab to produce Bhai Kanwar Singh Dhami, a hardcore terrorist surrendering to police force. But the drama turned out to be a fiasco and Bhai Kanwar Singh Dhami refused to surrender and told the whole world that he was in the illegal detention of Punjab police for one year during which period he was subjected to such inhuman and degrading treatment that it was better to die than to live. He also said that he would like to be killed rather surrendering to the cruel officer like K.P.S. Gill." He and his wife were booked under TADA on flimsy grounds and put to trial. Inspite of unimpeachable evidence of the illegal detention and false implication and the prosecution case falling like house of cards, the trial court sentenced Dhami to seven years imprisonment, acquitting his wife of all the charges. Interestingly, the same charges and same evidence was recorded against both of them, but one accused was acquitted and the other punished. Could any call it a natural justice ? Terribly indeed, the Supreme Court also confirmed the sentence imposed upon Bhai Kanwar Singh Dhami. The million-dollar question that arises is should every sentencing judge, high and low hang his helpless head in frustration and humiliation because institutional aberrations and personal perversions have sullied and stultified the justice of his sentence ?

6. Justice Ajit Singh Bains, a former Judge of Punjab & Haryana High Court was arrested on different charges, like supporting the cause of militants, sedition etc. It's a matter of shame for our judiciary that a Senior judge of the High Court having been charged of serious criminal charges only because of raising voice against State terrorism was put to jail for more than four months, and there was no hue and cry from any corner of judicial hierarchy.

7. On May 17, 1993 a team of Punjab police led by the then Superintendent of Police, Bhatinda district, S.K. Singh, went to Calcutta without the knowledge of the West Bengal government and raided a flat in the Tiljala locality where a couple, Basheer Mohammad alias Laxman Singh and his wife Saleema Begum were living. The police team dragged out the couple and shot them dead at point-blank range and disposed of their bodies. Police termed them to be dreaded terrorists but the C.B.I. inquiry on Supreme Court orders disclosed the most heinous crime which was unique in the annals of a civilized society. Five policemen including the Superintendent of Police were tried for the murder by Sessions Court in Calcutta and ultimately held guilty of the murder and sentenced to life imprisonment. But going contrary to the rule in the books, the appellate court admitted all the convicts to bail after conviction, which is neither lawful nor justifiable under the circumstances. Can anybody tell us why this concession has been granted by blowing all rules to winds ?

8. Great injustice has been done by the courts in the case of Cremation of un-identified bodies by Punjab police which was highlighted by Jaswant Singh Khalra, a human rights activist. The background of the case is that Khalra started investigating into the matter of "forced disappearances" of about 25,000 un-identified bodies in Punjab and the disposing of their dead bodies in a clandestine manner from 1984 till 1994. He had collected clear evidence that in the districts of Amritsar and Gurdaspur alone, there were as many as 3000 such cases of young men, who were cremated as 'unidentified terrorists' without any information given to their families. He was in the process of unearthing more facts and figures and making similar revelations regarding other districts as well. He had also collected evidence that around 2000 policemen in Punjab had been killed by the police itself for not co-operating in counter-terror operations. He had found that the police had burnt more than 1400 bodies in the cremation grounds of Amritsar, Patti and Taran Taran in the year 1992 only by stating that they were unclaimed or unidentified. He also disclosed in a press release that during the period Ist June, 1984 to the end of 1994 about 2000 bodies had been cremated as unclaimed in the cremation ground near Durgiana Mandir in Amritsar alone. On the basis of his investigations, Khalra firstly approached Punjab & Haryana High Court by way of a Public Interest Litigation seeking independent inquiry into the allegations of Cremation of un-identified bodies by Punjab police. The High Court in its usual fashion challenged his locus standi and dismissed the petition as being too vague. He then decided to approach the Supreme Court. At the same time, a human rights organisation, Committee for Initiative on Punjab filed a Public Interest Litigation in the Supreme Court alleging large-scale disappearances in Punjab during the militancy period. On their petition, the court issued notice to the State of Punjab. Khalra was assisting this organisation and continued with his investigations in other parts of the State. During this time, he had been receiving direct and indirect threats from the police officials of Amritsar district, particularly from Tarn Taran's Senior Superintendent of Police Ajit Singh Sandhu. The latter had warned that unless he stopped his activities, he would also become an 'unidentified body'. But Khalra refused to take to flight, and stuck with his human rights work in his native region. On the morning of September 6, 1995, the armed commandos of Punjab police kidnapped Khalra from outside his house in Amritsar. He then too became 'missing'. The SSP Ajit Singh Sandhu had fulfilled his word. A bench of the Supreme Court headed by Justice Kuldip Singh treated a telegram of Gurcharan Singh Tohra, regarding abduction of Khalra, as a petition for the writ of habeas corpus and issued notice to the Punjab authorities. The S. P. Sukhdev Singh Chhina of Amritsar city filed affidavits to claim that Khalra was not wanted in connection with any case and that the police had not arrested him. Other officials also filed affidavits to maintain that the Punjab authorities were making all efforts to trace Khalra, contending at the same time that he might have become a victim of inter gang rivalries. SSP Sandhu of Tarn Taran also filed a statement to deny that he had ever threatened Khalra. On 15 November 1995, the court ordered a CBI inquiry into the disappearance of Khalra. After the CBI submitted its report on Khalra's abduction and disappearance, holding nine officers of the Punjab police under SSP Ajit Singh Sandhu responsible, the court directed their prosecution on charges of conspiracy and "kidnapping with intent to secretly and wrongfully confine a person". But it's surprising that a human rights activist striving for upholding the human rights has been done to death and the police officials who committed the heinous crime have been charged only with kidnapping, a woefully insufficient charge in the face of evidence which proved brutal murder after subjecting torture. Due to lesser serious charge framed against them, all the accused in the case have been enlarged on bail by the Court, inspite of serious allegations of tampering with the witnesses and implicating them in false cases against the police officials. Very recently, one key witness in the Khalra abduction case, Rajeev Randhawa was falsely implicated in a bank dacoity case, but was discharged by the court for lack of evidence. On the other side, the petition of Committee for Information and Initiative on Punjab was also referred to the C.B.I. for holding inquiry into the cremation of un-identified bodies in Punjab. In 1996, the C.B.I submitted its interim report disclosing that 984 illegal cremations had been done in Taran Taran alone. The C.B.I. then issued a general public notice in the newspapers inviting public to assist in the inquiry. On 10 December, 1996, the C.B.I. submitted its final report. But the report was kept in sealed cover and not allowed to be seen by anybody. However, the Court's order dated 11 December, 1996 disclosed that the CBI has been able to identify 2097 illegal cremations-585 fully identified, 274 partially identified and 1238 unidentified, carried out by the State agencies. Supreme Court in its order observed, " the report discloses flagrant violation of human rights on a mass scale." While referring the National Human Rights Commission to examine the whole matter and determine all issues, the Supreme Court authorised the Commission to act as its organ and widened its powers. But after prolonged deliberation and discussions on different issues of dispute between the parties, the Commission made a detailed order that it had the jurisdiction more than provided under the Protection of Human Rights Act, because as per the Supreme Court Judgment, it was a body sui-juris with wide powers as the Supreme Court has in similar matters. After the Union of India went to the Supreme Court for clarification of its earlier order and Supreme Court referring back the matter to the Commission after a delay of ten months, the Commission sat for another three months to formulate the modalities of proceedings and ultimately held that " the petitioners contend that the Commission is required to inquire into all incidents of what are referred to as "extra-judicial elimination" or "involuntary disappearances", "fake encounters", "abductions and killings" etc. alleged to have been committed by Punjab Police during the decade of 1984-1994. The Contention of the Union and the State of Punjab on the other hand is that the inquiry is restricted only to 2097 cases of cremation of the bodies--585 fully identified 274 partially identified and 1238 unidentified in the police districts of Amritsar, Taran Taran and Majitha. In our view the Commission would restrict its inquiry to "cremations" of 2097 bodies within the three police districts of Amritsar, Taran Taran and Majitha." Even after the August 1999 order of the National Human Rights Commission limiting its scope of inquiry into the "illegal cremations" in only three police districts, not even a single sitting or hearing has taken place till October, 2000 to proceed with the investigation, which is a matter of rejoice for the Punjab police and a sad display of lukewarm response of the Commission to the Punjab problem. It gives ample reason to doubt the integrity and intentions of the Commission in finding out the truth behind the gravest form of human rights violation in the State where hundred and thousands of sons of mothers and brothers of sisters had been mercilessly killed and burnt like dead wood. Is this the justice Indian Constitution guarantees to every citizen?

9. The role of National Human Rights Commission and Punjab State Human Rights Commission in providing necessary relief to the victims of human rights violation has been very negligent. The National Human Rights Commission which was established in 1994 had not taken up more than fifty cases of violation in Punjab and in very few cases have ordered compensation to the next of the kin of killed person. There is no instance on record where the Commission had ordered the prosecution of the erring police officials. Actually, the National Human Rights Commission has been inflicted with few maladies, most important of which is non-transparency in its working. The complainant is never informed about the decision of the Commission, nor afforded any opportunity of personal hearing or to lead evidence in its support. Undue weightage is given to the Police denials. The Commission does not come with its annual report, although it is mandatory to submit annual report every year to the Parliament which will be placed before the Parliament by the Central Government along with action taken report. Interestingly, the Commission has not been able to submit its annual report for the year 1999 even till the end of 2000, due to reasons best known to it. The Punjab State Human Rights Commission is no better than the National Human Rights Commission. (For detailed information about the functioning of the Commission, see Chapter Six).

10. In 1998 all the human rights organizations of Punjab joined hands and formed a Committee for Co-ordination on disappearances in Punjab for finding the causes and effect of the State repression and doing justice to the families of victims. The Committee (in short called "C.C.D.P") decided to hold first ever three day public hearing of "PEPOLE'S COMMISSION ON HUMAN RIGHTS VIOLATIONS IN PUNJAB". Three retired high court judges having a record of their contribution in the field of human rights viz. Justice D.S.Tewatia, Justice H.Suresh and Justice Jaspal Singh were made the members of the bench. The Commission held its sitting from 8th to 10th August, 1998 in Chandigarh and issued notice to more than a hundred police officials against whom complaints relating to Custodial deaths, fake encounters and illegal detention were filed with cogent piece of evidence. The manner in which the Commission conducted its proceedings and the wide publicity given to it by the media, baffled police authorities and they raised a war of words against the People's Commission. A High Court lawyer filed a Petition in Public Interest seeking a ban on the People's Commission in the Punjab & Haryana High Court. The High Court took up the petition unexpectedly and issued notice to the respectable judges of the Commission without thinking that the Hon'ble judges were more respectable and senior than the one calling them to the court. After prolonged hearing for more than two years, the Division bench of the High Court imposed a blanket ban on the further sittings of the People's Commission and gave wholly absurd grounds for such a harsh judgment. They even denied, to be fair, the right to voice one's grievances in the garb of upholding the institution of judicial system.

11. In a very surprising but sad judgment in the era of human rights awareness, Justice K.S.Grewal of the Punjab & Haryana High Court granted regular bail to three senior police officers of Punjab police who are accused in a case of abduction and forced disappearance of an alleged militant, Sukhdev Singh alias Sukha. The three police officers are DSP Ramesh Chander(then SHO Police Station Sohana,Distt.Ropar), DSP Jagtar Singh(then SHO Police Station Ropar) and S.P. Mohinder Singh Chahal on 3rd April, 2001. Mrs.Kamaljit Kaur, wife of Sukhdev Singh alias Sukha had filed a Writ Petition in the High Court in 1996, seeking a CBI probe into the disappearance of her husband in 1993. The High Court considered the gravity of the allegations made in the petition and ordered a CBI inquiry in 1998. The CBI had registered a First Information Report on September 29, 1998, under Sections 364,365,344 and 34 of the Indian Penal Code against DIG Sanjeev Gupta, the then SSP Ropar, DSP Ramesh Chander and DSP Jagtar Singh, the then SHO of P.S.Sohana and S.P. Mohinder Singh Chahal, Ropar and started a thorough probe into the allegations leveled in the Petition. The CBI inquiry revealed that Sukhdev Singh alias Sukha was called to Police Station Sohana by the then SHO Ramesh Chander to meet the then SSP Sanjeev Gupta on 18th March, 1993. Sukha alongwith his friend Jaspal Singh, the Sarpanch of Village Raipur, Distt.Ropar, had gone to the Police Station Sohana, but only Jaspal Singh returned back, while Sukhdev Singh was detained in the Police Station Sohana till March 29, 1993. Thereafter he was shifted to CIA Staff, Ropar but brought back to Sohana on April 29, 1993 and was kept there till July 4, 1993. Surjit Singh, younger brother of Sukhdev Singh used to visit him daily to provide food, clothes etc. However, Sukhdev Singh was again taken to CIA staff, Ropar after July 4, 1993 by the then SHO Ropar, Jagtar Singh and thereafter his whereabouts are not known. The CBI after conducting detailed investigation filed a Chargesheet in the Court of Sh. Jaspinder Singh Heyer, Special CBI Judge, Patiala on February 1, 2001.The DIG Sanjeev Gupta who is an accused in the case applied for anticipatory bail in the case and Sh.Birinder Singh, Additional Sessions Judge, Patiala stayed the arrest of the police officer till February 19, 2001 which was extended till February 26. On this date, the Judge while staying the arrest of the officer till March 4, ordered him to surrender before the Special CBI Judge and apply for regular bail on February 28. Thereafter the accused moved a regular bail application before Sh.S.N.Aggarwal, Sessions Judge, Patiala. The Sessions Judge Patiala granted regular bail to Sanjeev Gupta on March 2. Similarly SP Mohinder Singh Chahal, DSPs Jagtar Singh and Ramesh Chander also applied for interim bail before Sh.Birinder Singh, Additional Sessions Judge, Patiala. The Judge while staying their arrest on March 15, till March 21 directed them to surrender before the Special CBI Court and apply for regular bail. They did so, but the Special CBI Judge, Mr. J.S.Heyer dismissed their applications on March 16. They moved the Sessions Court, Patiala but were declined bail by even that court on March 21. Aggrieved by that order, the trio had moved an anticipatory bail application before the Punjab & Haryana High Court, which was allowed by Justice K.S.Grewal, vide his order dated 3rd April, 2001. In his order, the Judge recorded that "since the incident is eight years old and the wife of Sukhdev Singh kept silent for four long years, therefore, there is no possibility of accused misusing the concession of bail. The evidence is circumstantial in nature and the police officers have not absconded and there is no likelihood of their absconding from the process of law. They are allowed the concession of bail on the condition of furnishing bail bonds in the sum of Rs. 1 lac each with one surety of the like amount and they should deposit their passports with the trial court forthwith". According to Criminal law experts, few strange things have been witnessed in this particular case. It's the first case where the anticipatory bail applications of the accused were repeatedly rejected, but the magistrate or even the Sessions Judge failed to order their arrest in custody after their so-called surrender. At the top of it, the High Court overlooked the fact that in the event of dismissal of their anticipatory or regular bail applications, the accused should have been in judicial custody in consonance with the provisions of Section 439 of the Code of Criminal Procedure. But none of the accused underwent even a day's custody, inspite of their prayer for bail being declined more than once. The ground made by the High Court is itself unwarranted. If the time gap between the incident and the launching of prosecution is material for considering the concession of bail, then thousands of poor undertrials under NDPS Act or TADA Act deserves to be given similar concession. And if delay in approaching the court seeking justice is also considered an important factor in the eyes of law, then almost all the police officers facing trial in the cases of fake encounters, summary executions and forced disappearances also deserve to be released forthwith, because the CBI had taken many years before launching prosecution against the police officers. That's why even a single police officer accused of human rights violations in the militancy period has not been arrested. Human rights activists are at loss to understand the indifferent approach of the lower and even the higher judiciary in the State. Orders like this will certainly have serious repercussions and give fuel to the fire in the sordid situation being rebrought again in the State. Nonetheless it has given wrong signals in the Police force where policemen will consider themselves even more powerful and free from the law.

JUDICIARY IN ACTION

After speaking much about the lackadaisical and negative role of the Indian judiciary towards various issues of human rights in Punjab, it would be a grave mistake, if we do not discuss, few cases of judicial activism and the positive role played by few judges in coming to the rescue of the victims. It is believed that in a situation where most of the judges used to raise irrelevant and wholly technical objections while throwing petitions of 'illegal detention', 'disappearance' and 'fake encounter', there were very few judges, who heard the matters sympathetically and where the police failed to give satisfactory explanation for their wrong, they ordered a judicial or C.B.I. inquiry to find out the real truth. Following are among the many cases in which the Courts conducted itself with due diligence and a degree of fairness in its proceedings:
1. On 1st November, 1993, Justice A.H.Ahmadi of the Supreme Court took Suo moto notice of a news item "Killed once, twice ....." when Sarabjeet Singh alias Surjit Singh of Valtoha was killed by the policemen at point blank range, after he was found alive at the post mortem table. The C.B.I. inquiry ordered by the apex court found four policemen responsible for the murder of Sarabjeet Singh. Jora Singh, Additional Sessions Judge, Amritsar after trying the four policemen for more than four years, held only S.I. Sita Ram guilty of kidnapping and murder of the deceased and sentenced him to 10 years rigorous imprisonment and a fine of Rs.2000. His three gunmen were however, acquitted of the charge.

2. The Supreme Court ordered a C.B.I. inquiry into the disappearance of three youths Nishan Singh, Sukhdev Singh and Jagjit Singh on December 7,1992 by Punjab police. A Superintendent of Police, Kuldip Singh and DSP Chaman Lal besides others are facing criminal trial for kidnapping and destroying vital evidence in a Patiala Court.

3. On 31st January, 1993 Sarwan Singh of Village Ladhuwal in district Gurdaspur surrendered before the then DIG (Border Range) D.R. Bhatti, because he was an accused in a murder case. The DIG assured his relatives that Sarwan Singh would not be harmed. But he was tortured to death in CIA Staff, Gurdaspur on 3.2.1993 and later on was shown to have escaped from police custody during an armed ambush by militants on the police party. The relatives of the deceased finding foul play approached the Supreme Court. The Supreme Court ordered a judicial inquiry by a Sessions Judge. The Sessions Judge although belied the police version as a cock and bull story, did not say as to whether the deceased was killed by the police or not. However, the Supreme Court closed the matter without any relief in 1998 and the inquiry report is gathering dust in the registry of Supreme Court even though it could reveal many startling facts regarding the modus operandi of the police in the matter.

4. In 1992, four ladies were arrested by the Punjab police on the charge of pick-pocketing and tattooed "jeb katari" (pick-pocket) on their forehead. The High Court took suo moto notice of the incident and ordered a C.B.I. probe and the guilty policemen were tried for the offence and compensation was granted to the victims.

5. On September 24, 1994, Punjab & Haryana High Court ordered the registration of case for murder against Inspector Lakha Singh and eight other policemen of Hoshiarpur. The charge against the police was that Bagicha Singh, a village granthi and was picked up by the police party for allegedly having links with one Raminderjit Singh of Jalandhar, an alleged terrorist. He was so badly tortured that he died of excessive torture in Police Station Hariana in district Hoshiarpur. H.P.Handa, Additional Sessions Judge, Hoshiarpur after a prolonged trial ultimately convicted Inspector Lakha Singh, S.I. Harpal Singh, H.C.Harbhajan Singh and Surinder Singh, Constables Satnam Singh, Raj Pal Singh, Sodhi Singh, Amarjit Singh and SPO Amarjit Singh and sentenced each of them to 20 years rigorous imprisonment with fine of Rs.2000 each.

6. On a public interest litigation filed by a Delhi Lawyer, B.L.Wadhera, the Supreme Court ordered a C.B.I. probe into the killing of a couple, Lachmi Singh alias Bashir Ahmed and Renuka alias Sakina Begum, in their house in Tiljala locality of Calcutta by a police party led by Bhatinda S.P. S.K.Singh on May 17,1993 and disposing of their bodies without the information of West Bengal government. The infamous case commonly known as " Tiljala encounter" shook the nation's conscience. The CBI after inquiry put to trial five police officials including an S.S.P. and D.S.P. in a Sessions Court at Calcutta. After trial, the Court sentenced all of them to life imprisonment. The Supreme Court's fear that "human life has virtually no value to the officers who wear the uniform and are supposed to be protectors of human life" has proved justified with this judgment.

7. On August 28, 1999 the Punjab & Haryana High Court ordered a judicial inquiry into the disappearance of Mukhtiar Singh of Verka in District Amritsar who was reportedly picked up by a police party on December 20,1990 and thereafter his whereabouts were not known. According to the police, he was killed in an encounter on February 3, 1991. The inquiry conducted by C.J.M. Amritsar is in progress.

8. Similarly another judicial inquiry was ordered by the High Court into the disappearance of Amarjit Singh of Village Landran in district Ropar, on June 25, 1992 by Punjab police.

9. The High Court had earlier ordered a C.B.I. inquiry into the killing of two police constables Rajwinder Singh and Mukhtiar Singh in 1992. After the inquiry by CBI found enough evidence to start criminal proceedings for murder against Inspector Amrik Singh and S.I. Ajit Singh. The two are facing murder trial in a Sessions Court at Hoshiarpur.

10. In March, 1993 Maninder Singh of Sangrur was picked up by a police party headed by Bhawanigarh SHO Harinder Pal Singh and done to death in fake encounter. The High Court firstly ordered a C.B.I. inquiry into the incident and thereafter a judicial inquiry which held that Maninder Singh had been eliminated by the police. Now all the seven accused policemen are facing trial for murder and kidnapping in the Court of Sessions Judge, Patiala.

11. The High Court yet ordered another C.B.I. inquiry in May,1997 into the abduction of Paramjit Singh of Hoshiarpur in 1992 where three police officers are expected to be brought to the dock.

12. On the orders of the High Court in 1996, C.B.I. chargesheeted the Additional Director General of Punjab Police, Daljit Singh Bhullar and four other police officers for murdering three persons, Paramjeet Singh Sahota, his cousin Satnam Singh and driver Vikram Singh for personal dispute in Mohali in September, 1995. All the five are still facing trial in the case but have succeeded in obtaining bail from the court.

13. Balbir Singh of Nabha in district Patiala was picked up by a police party on July 27,1996 and taken to CIA staff, Nabha. After torturing to death, his dead body was thrown into the Sirhind Canal bridge by the police. Later on, the police alleged that he had escaped from police custody and jumped into the canal and died. The High Court ordered a C.B.I. probe into the death of Balbir Singh in May, 1997.

14. Another C.B.I. inquiry regarding the death of Harjit Singh of Taran Taran in October, 1992 was ordered by the High Court in July, 1997. Harjit Singh, according to his father, Kashmir Singh was picked up by Taran Taran Police and was tortured in Mal Mandi Interrogation Center in Amritsar. A warrant officer appointed by the High Court even found him in the cell, but before he could act, the boy was whisked away. The High Court ordered a judicial inquiry into the incident, but the Sessions Judge did not give any concrete finding. Thereafter, the Court ordered a C.B.I. inquiry to go into the circumstances under which the boy was eliminated.

15. A judicial inquiry was ordered into the death of Dalbir Singh of Ropar district on March 11, 1992 by the High Court. While his father Shiv Ram stated that his son was picked up from his residence, the police alleged that he was killed in a police encounter on March 13, 1992.

16. Inder Singh, a businessman of Patiala was murdered by his wife and her paramour. But the police took his business partner Kuldip Singh into custody on April 22, 1994 and Inspector-Incharge C.I.A. Staff, Darshan Singh Mann demanded Rs.1.5 lakh as bribe, otherwise he threatened false implication in the murder case of his partner. Kuldip Singh supplied one lakh bricks for the palatial house of Darshan Singh free of cost, but later complained to the Senior authorities. An inquiry into the allegations proved that Darshan Singh was actually a Sub-Inspector, but secured promotion to the post of DSP by killing people in anti-terrorist drive. It was also established that he was indulging in extortion in the area. He was therefore, demoted to the rank of Sub-Inspector. The High Court ordered the registration of a criminal case against him.

17. Yet another judicial inquiry was ordered by the High Court in the case of fake encounter of Swaran Singh of Payal in Ludhiana district on 5th July, 1993. He had dared to contest the assembly election against Beant Singh, the then Chief Minister. He was liquidated by torturing to death, but termed it as 'escaped from police custody". A compensation of Rs. 50,000/- was also ordered by the High Court to the next of kin of the deceased.

18. On the orders of the High Court, a criminal case of kidnapping and murder was registered against Inspector Kashmira Singh, ASI Teja Singh and HC Amarjit Singh of Police Station Faridkot, for the custodial death of Mandeep Singh of Faridkot in 1993. According to the F.I.R. Mandeep was picked up by the three policemen from his house on December 9,1993 and kept in the police station for 11 days. On 20th Dec., they threw his dead body outside his house.

19. Nirmal Singh, Sarpanch of Hothian village in Taran Taran district was kidnapped in 1991 by Punjab police and thereafter his whereabouts were not known. The Supreme Court ordered a C.B.I. inquiry into the incident and thereafter a F.I.R. of abducting Nirmal Singh was registered against thirteen police officials of Taran Taran.

20. Interestingly, as per a C.B.I. counsel, more than eight criminal cases of abduction and murder were registered on court orders against many police officials of Taran Taran police district alone since 1995.

21. High Court also took up the matter of the elimination of three businessmen of Ludhiana by the then SSP, Ludhiana, Sumedh Saini in 1994 and ordered the prosecution of Sumedh Saini, SP Sukhminder Singh Sandhu and Inspector Paramjit Singh and Balbir Chand Tiwari, after a judicial inquiry found them involved in the murder of the three persons.

22. High Court also ordered a murder case against the then Superintendent of Police, S.P.S. Basra of Hoshiarpur after a C.B.I. inquiry found him and two others guilty of kidnapping Kuljit Singh Dhatt of district Hoshiarpur in July, 1989.

23. Ajit Singh Sandhu, the then SSP, Taran Taran and eight other police officers were ordered to be prosecuted for the murder of Jaswant Singh Khalra, a human rights activist by the Supreme Court in 1995.

24. DSP Jaspal Singh of Ropar and three other policemen are facing trial in connection with the abduction and killing of Kulwant Singh Saini Advocate, his wife and two years old child of Ropar in police custody in 1994. The Supreme Court had ordered a C.B.I. inquiry into the incident when all the lawyers from Punjab, Haryana and Chandigarh went on a two month long strike against the dastardly killings by Punjab police and ultimately the C.B.I. revealed that the advocate was tortured to death while in illegal custody and since his wife and child were witnesses to the gruesome murder, they were also killed and thrown into the Sirhind Canal alongwith their vehicle.

25. On the directions of the Supreme Court, the Bathinda police had registered a case of murder against Punjab police Inspector Gurjeet Singh and 10 others for murdering Paramjit Singh of Bathinda in 1992 and later branding him as terrorist. A judicial inquiry was conducted by Sessions Judge, Bathinda who indicted the police officials for murdering Paramjit Singh.

26. High Court also ordered the registration of a murder case against Inspector Gurjeet Singh for killing Gurmail Singh of Village Akkanwali in district Bathinda in 1993.

27. The High Court firstly ordered a C.B.I. probe into the elimination of seven family members of Baba Charan Singh, a religious person of Taran Taran in 1993 and then ordered the C.B.I. to prosecute the then SSP, Ajit Singh Sandhu and other police officials in connection with the crime. It is the same case when it was highlighted by the media that the police indulged in large scale loot and plundered the house of the Baba. The driver of the Baba was torn into two pieces by tying his legs with two jeeps and driving them in opposite directions. The judicial inquiry conducted by the Sessions Judge, Amritsar although exonerated the police officials, but the High Court on the basis of CBI inquiry ordered the prosecution of the police officials for murder.

28. The High Court had ordered the C.B.I. to investigate a case of alleged police encounter on 25 January, 1994 in which two young persons of Village Kahnuwan were killed. The C.B.I. found 28 police officials including SP Vivek Mishra and DSP Baldev Singh responsible for the murder and filed chargesheet in the CBI court at Patiala.

29. The judicial inquiry into the fake encounter by Punjab police in 1993 in which Gurbaj Singh alias Baja was killed, held the police officials responsible for the fake encounter. On receipt of the inquiry report, the High Court directed the State of Punjab to pay a compensation of Rs.1.5 lakh to the dependants of the deceased.

30. The National Human Rights Commission, Delhi had directed the Punjab police in 1993 to register murder case against ex-SSP Harinder Singh Chahal and S.I. Darshan Singh and SPO Sarabjeet Singh, for killing a Constable Basant Singh of Sangrur district and on its orders, a murder case was registered against the three in 1997.

31. The death of Kulwinder Singh alias 'Kid' of Mohali, in a fake encounter near Chandigarh in July, 1992 was taken to the High Court by his headmaster father Tarlochan Singh. The High Court firstly marked a C.B.I. inquiry. Thereafter a judicial inquiry was ordered to be conducted by Sessions Judge, Chandigarh. The judicial inquiry held the Punjab police responsible for the fake encounter. Thereafter the High Court has now ordered the trial of seven police officials including Inspector S.S.Grewal, SI Birbal Dass, ASI's Amarjeet Singh and Chanan Singh, HC's Gurcharan Singh and Nikka Ram, besides Constable Dayal Singh.

DRACONION LAWS :-

Draconian laws enacted during the past years had reduced the State to a trynnical police state curbing all constitutional freedoms of the people guaranteed in the Indian Constitution. The Central government with a view to perpetrate more heinous crimes upon the innocent people had enacted the most draconian law, Terrorist and disruptive activities act (TADA) in 1984 only for dealing with the situation in Punjab. Later on it was applied in other parts of the country. Another law which was mostly used during the Operation Blue Star was the National Security Act,1980. These acts alongwith a whole lot of similar acts had given unquestionable authority to the police to kill anybody and arrest anybody without trial for months and even years together.
Under National Security Act, a person can be jailed without disclosure of reason, without trial and without redress for two years in Punjab. His detention can be extended from time to time for an indefinite period. The grounds of detention may fall within any of the wide rubrics such as maintenance of public order, the maintenance of supplies and services essential to the community, the security of the state or of India etc. This kind of judicial terrorism practiced in the name of fighting with "extra-ordinary situation of 'proxy war' would remain a blot on constitutional justice in India. The Custodians of the state power have much to answer to the bar of world opinion for their barbaric statutes and its application against their own men. This authority to arrest and detain a person for unlimited period was seen by many jurists as highly unethical and unwarranted. Justice Krishna Iyer had once said in this context that " the power of detention without trial, when vested with the executive, is an enemy of civil liberties and has been an imperial weapon to hit below the belt whenever open justice has been processual nuisance for authoritarian."

T.A.D.A.-- HANDCUFFING THE HUMAN RIGHTS

Another draconian act, meant only for the State of Punjab, Terrorist and disruptive activities act, 1984, popularly known as TADA was passed in the form of a presidential ordinance in 1984. This act made gross departures from the ordinary notion of public trial. Anybody could be termed as a terrorist at the whims and fancies of the third rate policeman and put behind bars for unlimited period. Possibility of granting bail was the rarest of rare." Bail not jail" is the general rule which has been adopted in the criminal trials which began with the presumption of innocence in favor of the accused. But in Punjab, the rule was changed into: 'jail not bail'. Anybody raising a voice of dissent against the policies of the government was being booked under this act, although due to lack of any evidence or ingredient to frame the charge, most of them were simply discharged after a long incarceration. According to this act, the appeals against the decisions of the designated courts under TADA could only be made to the Supreme Court and not to High Court even though the trial court was a Sessions Judge. About this Act, Justice Krishna Iyer observed, " The Rowlatt Act is far fairer and whatever the situation in Punjab, a pan Indian criminal procedure prescribed by this special legislation must shock the conscience of those who hold humanist values of justicing inalienable." He further said, " Prima facie, the anatomy of the Terrorist and disruptive activities act is incredibly terrorist in operation. Legal terrorism is not an answer to illegal terrorism, and if the hit list tactic of the extremist is horrendous the police operated and politically fuelled hit list of the executive extremist may be doubly deadly. It wears the garb of law and has, therefore, a mareecha mein of jurisprudence. Secondly, the people who are clawed by this law are larger in number, weaker as victims have no remedy under the law since the law itself turns lawless." Another jurist pointed out that the procedural provisions of the TADA are unjust and unreasonable not only in regard to the accused, but in regard to the society as a whole. In the first place, the TADA provisions lead to unjustified arrests of innocent persons, their detention in police and judicial custody for long periods and their conviction even when they may be innocent. The injustice thus caused leads to intense dissatisfaction among the relations and friends of the person accused and tried under the TADA and thereby swells the ranks of terrorist gangs. The arbitrary powers given by this act to the police are justly described as amounting to state terrorism which is clearly counterproductive because it fuels the fumes of terrorism. The repressive legislation, unprecedented in its ferocity, was fraught with danger because it could treat as terrorist all those who would normally come under the category of dissenters. The law soon came to be used by the ruling congress party for narrow political ends.
The TADA was grossly mis-used in Punjab. According to the intelligence agencies, around twenty five thousand people were booked under TADA since its enactment all over the country out of which more than fourteen thousand persons were arrested in Punjab alone. Surprisingly, most of the accused who were brought to trial under this act were acquitted due to lack of evidence. The police justification of large acquittals that the witnesses were intimidated and influenced holds no ground, because in many cases the witnesses were only policemen and still the accused were acquitted. A pointing case of mis-use of this draconian legislation is of Baljit Singh of Chandigarh who had broken a small stone called "Shivling" in a ground near his house, where some hindus were planning to built a temple. He was arrested under TADA for attempting to commit an act of terrorism and was shown to have raised Khalistan slogans. The Chandigarh designated trial court while acquitting him passed strictures against the Chandigarh police for having booked him under TADA, as no ingredients of a terrorist act were made out. But before this judgment came, the poor fellow had already undergone two years of his valuable life in jail.
Pathetically, inspite of TADA being withdrawn few years ago, hundreds of youth are languishing in Punjab jails without any trial. Would anybody listen to their wails for a speedy trial and disposal of their cases ?

 

 

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