CHAPTER SEVEN
PEOPLE'S COMMISSION ON HUMAN RIGHTS VIOLATIONS
IN PUNJAB
Frustrated over their long pending demand of a judicial commission
to probe the decade long violence in the State, all the human rights
bodies formed a Committee for Coordination on disappearances in
Punjab (C.C.D.P.) in November, 1997. An air of distrust and dissention
was built and the State government was caught in a quandary, but
it turned a blind eye to this demand of the people. When all efforts
of the human rights groups failed and ultimately they lost patience
with the ball rolling the right way. In a jam packed press conference
attended by all the member organizations of C.C.D.P. at Chandigarh
on 8th April, 1998, the formation of People's Commission was announced.
This declaration expectedly raised unprecedented undercurrents in
Political circles as well as in the police force. This ensued heated
charges and counter-charges between human rights activists and the
State agencies. Most prominent among the persons speaking against
it were the former Police chief, K.P.S.Gill, BJP leader, Laxmi Kanta
Chawla and Maninderjit Singh Bitta of Indian National Congress.
K.P.S.Gill, known as a staunch supporter of the fascist theory of
immunity for his officers who transgressed law on the pretext of
fighting terrorism in the State, could not digest the historical
declaration and exposed his venomous view point, in an article titled
"Truth lies with People and not Commission" wherein he
wrote :
".... We have thus a commission of three retired Judges, drawn
from outside and unfamiliar with the ground realities of Punjab,
who are to review the mountains of evidence relating to a decade
and a half of turbulence and terror within eighteen months. But
the institutional context within which the commission is to operate
is so manifestly partisan, so intrinsically linked to one of the
most duplicitous actors in Punjab's age of terror, that the trust
of its inquiries are a foregone conclusion.
....... I have reportedly demanded a fair and impartial investigation
of the events that kept Punjab at the brink throughout the 1980's
and into the early 1990's; an investigation that would not stop
at conveniently scapegoating the police, but would go beyond to
discover the murderous web of Political conspiracies that gave birth
to terrorism; one that would create the basis to bring surviving
terrorist, some of whom still swagger around the Punjab in Political
garb, to justice; one that would honestly confront the inquiry and
amoral opportunism of religious institutions and pretenders, especially
of the SGPC; and one that would expose and help punish the unconscionable
defalcation and cowardice of every arm of governance, specifically
the bureaucracy and the Judiciary-other than the uniformed services."
It was clearly an outburst born out of desperation. The above thought
indicates that although serious trouble had now brewed in the police
cadre, something essential seemed to gather force from the constitution
of the People's Commission. Mr. Gill made it sound as if the Police
force was facing an army of terrorists. It seems extraordinary that
such a small number of Human Rights activists would be able to bring
the Police force to its knees. But the Human Rights activists were
not amused by such utterances whether it came from the Advocate
General of Punjab or the Chief Minister Parkash Singh Badal himself,
because it was not a secred that the People like K.P.S.Gill and
the men of his ilk have completely lost the power of thinking and
reasoning. They think the only way to discredit the Human Rights
defenders is to abuse them. They also feel that maligning the Judiciary
and degrading the morale of the Human Rights activists is a legitimate
task of the people like him, but these incidents are engineered
to elicit maximum and uncontrolled reactions involving government
in full glare of the media.
Mr. K.P.S.Gill, had veriforously spoken ill of the People's Commission.
It sounds a bit bizarre, as the allegations of humiliation and demoralizing
situation have come from a person who himself is a convict, and
bore on his shoulders, the burden of a conviction for a pat on a
lady bureaucrat's bottom. No other person in the State's political
history has been so mediocre and yet had a sudden rise and equally
sudden fall as Mr. Gill. Only a few months ago, all those who were
calling him "Supercop" were busy writing his obituary.
To call him a "crusader of peace" or a "brave warrior"
is to give him undue credit. In fact, he has been a failure all
his life. Apart from being a conniving manipulator, he is also corrupt
to the core. There is very little conviction in his voice when he
murmurs against the People's Commission.
While setting the stage for holding first ever historical sitting
of a People's Court, under the name and style of " People's
Commission on Human Rights Violations in Punjab" the three
day proceedings was notified to be held from 8th to 10th August,1998
at Chandigarh. Former Chief Justice of Calcutta High Court, Mr.
Justice Devi Singh Tewatia (Retd.) as its Chairman, Mr.Justice Hosbet
Suresh (Retd.) and Mr.Justice Jaspal Singh (Retd.) were appointed
as its members respectively. The terms of reference given to the
Commission were :
"To examine the complaints of illegal abductions, custodial
torture, enforced disappearances, summary executions and enmasse
illegal cremations and to give its findings on :
(a) Whether from 1979 to 1997 the agencies of the State carried
out and tolerated directly or indirectly any of the above mentioned
atrocities and thereby committed violation of human rights as guaranteed
under the Constitution of India and various International covenants
and declarations;
(b) Whether the State agencies/individuals prima facie committed
any offence under the law of the land or international law.
(c) To suggest the remedies available to the victims of the aforementioned
atrocities including their entitlement to compensation from the
State and its agencies."
Before formally announcing the holding of first Public hearing by
the People's Commission, in a last bid to persuade the State government,
a delegation of human rights bodies met the Chief Minister of Punjab
at his residence on 4th August,1998 and handed over to him a list
of 2,851 persons found "missing" in Police records or
either killed in fake police encounters and demanded a Judicial
Commission to probe these official excesses. They even offered to
wind up the proposed People's Commission, but in the event of failure
of the State Government, it warned that they would go ahead with
the planned sitting of People's Commission. But the State government
did not pay any heed seriously and it was decided to hold the three
day Public hearing from August 8, 1998 to August 10, 1998.
HISTORY RE-WRITTEN : PROCEEDINGS OF THE PEOPLE'S COMMISSION
Date : 8th August, 1998:
Venue : Conference Hall, Gurudwara Sahib, Sector 34, Chandigarh.
The Court room was decently decorated and the wall behind the dais
bore the banner " The People's Commission" . Three chairs
for the Judges with separate microphones affixed to the dais, table
tops, pen-stand and every item of need, besides three powerful Air-Conditioners
were giving the impression of a Court room of the High Court.. The
sitting arrangement for more than five hundred people was suitably
made in the Hall. Separate arrangement for the Panel of Lawyers
and the Press media was also impressive. A separate room for the
registration of fresh complaints with three lawyer investigators
led by Mr. Harshinder Singh, Advocate and assistants was provided
for the purpose. The opening day of the historical sitting of the
People's Commission started at 10 .30 a.m. with flickering still
and Video cameras trying to capture the best scene of the event.
The convention hall of the Gurdwara Sector 34, Chandigarh completely
resembled a High Court. The three Judges namely Mr. Justice Devi
Singh Tewatia (Retd.) at the center as Chairman, Mr. Justice H.
Suresh (Retd.) at the left and Mr. Justice Jaspal Singh (Retd.)
at the right as members respectively occupied their seats and commision
started its proceedings. Two stenographers took down the notes,
with one Secretary calling the names of the people addressing the
Court. Amid pin drop silence, the first speaker to address the Commission
was a leading Supreme Court Lawyer and torchbearer of Women cause
Ms. Indira Jai Singh, who spoke on every issue of human rights in
Punjab during her hour long speech explaining the roots of the Punjab
Problem, instances of Law protectors turning into Law breakers and
ending with some suggestions to the Commission for its proceedings.
After that, Mr. Amar Singh Chahal, President, Lawyers For Human
Rights, International, Mr. Justice Ajit Singh Bains (Retd.) Chairman
of Punjab Human Rights Organization, Mr.Gurtej Singh, a former I.A.S.
Mr. Ranjan Lakhanpal, Advocate, Mr.Ram Narayan Kumar, Convener,
Coordination Committee on Disappearances in Punjab, Mr. Simranjit
Singh Mann Akali leader and many others placed their submissions
before the Commission in the post-lunch session which continued
till the rise of the Court at 4 p.m. The commission also framed
rules for its future functioning. Concluding the first day's sitting,
the Chairman, Justice D.S.Tewatia, observed that the speakers in
the morning session on the next day should confine to "general
presentation" of the causes and cases. Prominent persons attending
the commission proceedings on the first day included Mr. Simranjit
Singh Mann, Bhai Jasbir Singh Rode, Justice Kuldip Singh, Human
Rights Activists, Lawyers, Journalists and large number of victims
of State repression whose tale of woes have gone unheard all these
years. The proceedings during all the three days were exclusively
in English and it successfully attracted every section of the society.
Almost every political party whether in favor or against it sent
its representative to view the functioning of the so-called extra-judicial
court.
9th August,1998: Chandigarh
The commission started its proceedings on the second day at 10.30
a.m. with presentation of particular cases of "disappearances"
during the period 1979-1997. Legally drafted complaints supported
by duly sworn affidavits of the complainants and documentary evidence
including the affidavits of the witnesses in whose presence the
victim was picked up or taken by the Police were read over by the
lawyers on the microphone. The names of Police officers responsible
for the crime were prominently mentioned along with the role of
each of them in the particular case. The counsels namely Mr. Rajvinder
Bains, Mr.Puran Singh Hundal, Mr.Navkiran Singh and Mr.Arunjeev
Singh Walia all practising Lawyers of Punjab & Haryana High
Court explained every case and the set of events which led to the
disappearance of the victims. After hearing the counsel and considering
the evidence on record of each case, Mr.Justice D.S.Tewatia, speaking
on behalf of the Commission issued notices to the State of Punjab,
through Home Secretary, the Director General of Police, Punjab and
individual Police officer allegedly responsible for the crime .
He ordered a copy of the notice to be sent separately to the Director
General of Police returnable by 23.10.1998.
10th August,1998: Chandigarh
The concluding day of the Commission's working witnessed unprecedented
Public support and large gathering. It was largely attended by the
Press, leaders of Political parties and next of kin of those killed
or disappeared. Thousands of people thronged the registration room
to register their complaints along with documents and evidence.
The proceedings of the Commission was video recorded throughout.
At the end of the third day's sitting, the Secretary of the Commission
announced the holding of second sitting of the Commission at Sukhdev
Singh Hall, Punjab Agricultural University Campus, Ludhiana from
23rd October,1998 to 25th October,1998. And the Court was adjourned
till then. (Later on this date was postponed for reasons best known
to the organisers of the People's commission.
PEOPLE'S COMMISSION VS HIGH COURT
In an unsuccessful attempt to scuttle the effort to find out the
truth behind the decade long violence in the State, one Lawyer of
Chandigarh filed a Petition in so-called Public Interest in the
Punjab & Haryana High Court in September,1998 seeking a ban
on the activities of the People's Commission and for a stay on the
proposed next sitting of People's Commission in Ludhiana on 23rd
October,1998. The Petition which later came out to be the handiwork
of anti-human rights forces, interalia alleged that " by sitting
over judgments passed by the Law Courts of competent jurisdiction
in cases of alleged excesses during the period of militancy, as
per article 5(2) of the rules framed by the People's Commission,
an attempt is being made to set up a parallel judicial system which
may have the result of subverting the judicial process of the country
as well as causing a serious threat to the survival of the Republic
of India." It further alleged that "the functioning of
the People's Commission to carry out its avowed object shall bring
the system of administration of justice in the country into disrepute
and will amount to interference in the administration of justice."
The Petitioner also tried to take every benefit from the provocative
statements issued by the then Advocate-General of Punjab, Mr. Gurdarshan
Singh Grewal and the BJP Minister, in the Punjab Cabinet, Mr. Balram
Ji Dass Tandon, against the People's Commission and laid down its
own question of law as to whether an extra-constitutional body like
the People's Commission is entitled to byepass the judicial process
and the system of administration of justice as enshrined in the
Constitution of India ? Different political parties including Indian
National Congress, Bhartiya Janata Party, Communist Party of India,
Rashtriya Savyam Sangh (RSS) etc. streneously and studiously opposed
the activities of the People's Commission so that the truth behind
the genocide of Sikhs in Punjab could not be brought to light.
The Division bench of the High Court, issued notice to the Chairman
of the People's Commission and other parties, without hearing even
a single word of argument from the Petitioner's Counsel. It is noteworthy
that the same bench had to their credit many orders of dismissal
of Public Interest Litigation in limine relating to Custodial death,
false encounter, and rape by Policemen, during the days of State
repression in the State. This undoubtedly boosted the morale of
Punjab Police, especially Mr. P.C. Dogra, the then D.G.P. of Punjab
Police whose public outcry against the Human Rights organisations
in Punjab had defamed many human rights activists of being "terrorists
with pen-bomb". Organisations and political parties known for
their anti-human rights stance rose high up in arms and without
caring a wee bit about the sub-judice nature of the case came down
heavily upon the Commission by making unwarranted statements. Strangely,
the High Court which had taken strong notice of the mis-reporting
by press earlier, ignored these statements.
The Petition came up for further hearing before the bench consisting
Mr. Justice R.S.Mongia and Mr. Justice S.S.Sudhalkar on 25th September,1998
where the Committee for Co-ordination on disappearances in Punjab(which
formed the People's Commission)filed an application seeking permission
to be impleaded as intervenor in the said Writ Petition. In the
said application the C.C.D.P. (Co-ordination Committee on disappearances
in Punjab) stated that since the activities of the People's Commission
are under judicial scrutiny of the Hon'ble High Court in the present
Civil Writ Petition and because the People's Commission has been
formed by the it, the C.C.D.P. being a necessary and interested
party, may be permitted to join in the Petition as respondent. The
case was then further adjourned. On an even date, the State of Punjab,
filed the reply stating that -
......The People's Commission is a private body which has no legal
sanction behind it.
.......So far the functioning of the People's Commission has not
created any law and order problem or infringed any law and there
is no occasion for the State to interfere into the affairs of this
private body.
_____ The Government is closely watching the situation arising out
of its functioning and is keeping a strict vigil and will interfere
whenever any cause or situation warranting intervention of state
arises.
....... Under Section 36(2) of the Protection of Human Rights Act,1993,
the National Human Rights Commission or the Punjab State Human Rights
Commission are prohibited from inquiring into any matter after expiry
of one year from the date on which the act constituting violation
of human rights is alleged to have been committed. The State Government
is of the opinion that this period needs to be extended upto ten
years. The Government proposes to take up the matter with the Union
of India to get the necessary amendment made in Section 36(2) of
the Act so that complaints regarding human rights violations of
the last ten years can be taken up by the Punjab State Human Rights
Commission.
.......The Government is of the view that a private body like the
People's Commission which has no legal sanction and no power to
award punishment or compensation will serve no useful purpose. However,
in view of the fundamental rights guaranteed under the Constitution
of India, the State cannot interfere with such private initiatives
as the People's Commission, unless its functioning infringes any
law or otherwise gives rise to a law and order problem. "
In its reply filed by the Union of India, before the High Court
,Mr.Rohtash Singh, Under Secretary, Ministry of Home Affairs, New
Delhi submitted that -
......The Union of India has sought a factual report about the activities
of the People's Commission from the State Government and would act
appropriately if any action is warranted on its part on the basis
of the said report.
....... The Union of India has no specific comments to offer on
various paragraphs of the petition except that some of the activities
of the People's Commission tend to encroach upon the judicial function
of the State and have no force of law.
...... The People's Commission in issuing notices to public servants
in the State of Punjab, to depose before it is completely illegal
and has no force of law, and after obtaining a report from the State
Government, the Union of India would have no hesitation in advising
the State of Punjab to ask its officers to ignore these notices.
.......In view of the above submissions, Union of India also feels
that the Hon'ble High Court should also take cognizance of the extra-constitutional
nature of functions and activities of the People's Commission and
restrain it from doing anything which may amount to encroaching
upon the judicial function of the State. "
At this stage, three citizens of Punjab, namely Mohan Singh, Narinder
Singh and Ajit Singh all residents of District Gurdaspur in Punjab
joined hands with the Petitioner and filed another Civil Writ Petition
challenging the functioning of the People's Commission on the grounds
that --
......After almost a war like situation in Punjab in this one and
a half decade in which thousands of lives were lost, peace ultimately
settled down and guns fell silent. However, certain elements who
could not digest this prevalence of peace and calm atmosphere in
Punjab , set-up mock courts without any sanctity of law for misguiding
innocent people of Punjab by issuing notices/Summons to various
authorities in Punjab. This was done with a clear cut intent to
subvert the administration of justice and to inflame communal passions
in Punjab to which semblance of law and order had recently returned.
...... it dawned upon them that setting up of this People's Commission
shall certainly lead to revival of terrorism in Punjab. Surprisingly,
the Government of Punjab and Union of India remained a mute witness
to the activities of the People's Commission and no action has been
taken for banning such a Commission which is capable of arousing
communal passions amongst the people and also of spreading seditious
propaganda.
....... The State Government has not even deemed it fit to register
cases against those members of the People's Commission who are openly
subverting the administration of justice and acting as law unto
themselves."
After going through the submissions of the State of Punjab and Union
of India mentioned in their separate replies, the case was listed
for arguments. Meanwhile, another application for permission to
become a party to the petition was moved by one Advocate, Mr. Surjit
Singh Sood, President of Consumer and Citizens Liberty Organization,
Jalandhar wherein he submitted that -
"......The State of Punjab has suffered greatly for the last
about two decades because of suppression of civil liberties by the
members of the Police force in the State of Punjab under the malignant
guidance of the then Governments of Punjab and Center ruled by the
Indian National Congress.
........ The citizens of Punjab had always been demanding that either
the Central Government or the State Government should establish
a commission of enquiry to fix responsibility for the death of several
thousand persons at the hands of police and the so-called extremists
in the period under review, but no such commission has been established
so far. It is a matter of pain for the ordinary citizens of Punjab
that even after the establishment of the popular government of Shromani
Akali Dal in Punjab such a commission has not been established so
far although Shromani Akali Dal is the only organization which has
been tirelessly agitating and pleading the cause of civil liberty
in the State of Punjab and through out India.
.......The said three gentlemen carry a reputation of great honesty,
integrity and love and respect for the cause of justice and also
for the cause of sovereignty and integrity of India.
....... The writ petition filed by the Petitioner is a clumsy effort
to somehow down and cloud the integrity and intentions of the People's
Commission.
.......The applicant has special knowledge of the sufferings of
citizens of Punjab in the wake of Operation Blue Star and thereafter
as he was the counsel incharge for the defence of 365 innocent persons
who were arrested from the precincts of holy Golden Temple Complex,
Amritsar between 3rd and 6th June,1984 and were detained in various
jails and finally in Jodhpur Central Jail. The applicant is also
specially aware of the efforts of the then Governments of Punjab
and Center to thwart the successful effort of Advocates of those
detainees in Jodhpur Central Jail as the applicant and his team
of lawyers were threatened, insulted and hampered in the defence
of those hapless detainees whose only fault was that they had been
working on duty as Sewadars or had gone as devotees to the holy
precincts of Sri Darbar Sahib, Amritsar on the day when Operation
Blue Star was conducted which was the martyrdom anniversary of Guru
Arjan Dev, the 5thGuru of the Sikhs.
........This is the genuine feeling of the applicant that the Civil
Writ Petition filed against the People's Commission has been filed
at the instance of police officials, bureaucrats and others who
have been guilty of committing heinous crimes in the State of Punjab
and who are afraid of the finding by the Commission that they had
committed atrocities on the citizens and took the law into their
own hands.
.......The establishment of the People's Commission is a common
and most appropriate action in a democratic society. Its establishment
is in the greatest interest of democratic functioning of India.
Citizens of India especially the citizens of Punjab shall be greatly
benefited by the enquiry to be conducted by the said People's Commission.
....... The People's Commission has adopted very correct and appropriate
attitude in inviting all the persons against whom allegations of
extra-judicial killings, torture, and atrocities have been made
to present their case before it.
...... In case the High Court directs the ban on the activities
of the People's Commission, the integrity and sovereignty of India
which is dearer than life to the applicant shall suffer an irreparable
damage. "
In its next hearing, the High Court allowed the above mentioned
two applications filed by the C.C.D.P. and Mr. Surjit Singh Sood,
Advocate and impleaded them as respondents.
In its endeavor to sidetrack the issue of legality of the Commission's
functioning the State of Punjab argued before the High Court that
since it has forwarded the proposal to amend Section 36(2) of
the Protection of Human Rights Act,1993 to the Union of India
whereby the Limitation for entertaining complaints by the Punjab
State Human Rights Commission would be extended to 10 years, and
the said proposal is being examined by the Union Home Ministry
and some more time may be granted to the State Government to do
some extra efforts in getting the amendment at the earliest.
During the Course of argument on one hearing, the Counsel for
the Co-ordination Committee on Disappearances in Punjab agreed
to the suggestion that if the Union of India makes an amendment
in the Protection of Human Rights Act,1993 empowering the State
Human Rights Commission to hear complaints pertaining to incidents
of human rights violation earlier to one year, they will wind
up the People's Commission. The counsel of the C.C.D.P. even went
to the extent of giving an undertaking that it would not hold
the future sittings of the People's Commission till the decision
of the present petition before the High Court. Feeling overjoyed
over this undertaking, the parties to the petition agreed to adjourn
the case for awaiting the response of Union of India to the proposal
forwarded by the State of Punjab with regard to the amendment
in the Section 36( 2) of the Protection of Human Rights Act,1993.
The case was adjourned to 24.12.1998.
Expectedly, the undertaking given by the counsel for the C.C.D.P.
and adjourning the future sitting of the People's Commission on
28th November,1998 in Amrtisar sine die , arouse feeling of discontent
among the fellow organizations in the C.C.D.P. Lawyers For Human
Rights International being the first body to express annoyance
over this arbitrary and unwarranted decision said that even if
it is presumed that the there is an amendment in the Protection
of Human Rights Act,1993, there would be no change in the situation
as the People of the State have lost faith in the "toothless
and in-effective" functioning of the State-sponsored Punjab
State Human Rights Commission, due to its biased attitude towards
the Punjab Police. It also argued that during the two years of
its constitution, when the P.S.H.R.C. has not been able to show
the desired results, what justice it could give to the victims
whose cases date back to 1988 or 1990.
Many human rights activists associated with the working of the
People's Commission felt that for the sake of argument, if the
High Court bans the People's Commission, the purpose behind the
formation of the Commission would be vindicated as it would cry
loud and high at every forum that the human rights situation in
the State has gone so abysmal low that the people are even deprived
of the fundamental right to speech and expression and that the
Government of India and the Indian Judiciary does not want to
bring before the world the truth behind the mass genocide of the
Sikhs in Punjab. Notwithstanding some misunderstanding among the
human rights organisations over the indefinite postponing of the
future sittings of the People's Commission, the work of documentation
of cases of disappearance and collection of evidence and data
continued in the secretariat of the People's Commission at normal
pace.
On February 4,1999, in its rejoinder filed on behalf of Union
of India, Sh. Alok K. Srivastava, Director, Ministry of Home Affairs,
Union of India submitted in the High Court that the proposal of
the State of Punjab to amend the section 36(2) of the Protection
of Human Rights Act,1993 to extend the limitation period from
one year to ten years has been finally rejected by the Government
of India, on the ground that by extending the limitation period
from one year to ten years, it would open the flood gates for
litigation and allegations which would be beyond the capacity
of either the National Human Rights Commission or the Punjab State
Human Rights Commission to handle. Even at present both these
Commissions are overcrowded with complaints filed by victims of
human rights violations.
This rejection of the proposal by the Government of India gave
a good ground for the propounders of People's Commission to argue
that it was for this reason that an independent Commission was
greatly needed. Even the opponents of the People's Commission
adopted sympathetic approach towards it. With this rejection,
the role of Central as well as State Government came under severe
criticism . It was felt that the Central as well as State government
do not want to expose the people behind large-scale human rights
violations in Punjab. Every element opposing the People's Commission
got an opportunity to raise a war of words in the media and influence
the mind of the bench hearing the petition and the stage was set
for final battle of Human Rights activists Vs. anti- Human Rights
lobby in the Court room of Mr. Justice G.S. Singhvi and Mr. Justice
Amar Dutt.
JUDGMENT DAY: HIGH COURT BANS PEOPLE'S COMMISSION
Amar Dutt, J. for himself and G.S.Singhvi J.
By this order, we are disposing of three Civil Writ Petitions
as common questions of law and fact are involved in the same.
These petitions have been filed primarily for issuance of a writ
in the nature of mandamus to the Union of India and to the State
of Punjab for taking appropriate action against the People's Commission
by prohibiting it from carrying out the objects set out in its
constitution and from holding its scheduled sittings.
Sudarshan Goel, is a practicing advocate and a member of the Punjab
and Haryana High Court Bar Association since 1979. He says that
he does not have any personal interest and he is not affected
by the working of the People's Commission but he has invoked the
jurisdiction of this Court under Article 226 of the Constitution
of India because the working of the Commission has seriously eroded
the people's confidence in the majesty of law. He further says
that this petition represents the sentiments of millions of citizens
of India especially the persons living in the State of Punjab
and surrounding areas who are interested in upholding the majesty
of law and ensuring that the administration of justice is not
tampered with or interfered with in any manner. He has referred
to the news reports regarding the setting up of the Commission
under the Chairmanship of Mr. Justice D.S. Tewatia, former Chief
Justice of Punjab and Haryana High Court, Mr. Justice H. Suresh,
a retired Judge of Maharashtra High Court and Mr. Justice Jaspal
Singh, retired Judge of Delhi High Court as its members. The Commission,
it is alleged has been set up by 20 odd organizations and political
outfits engaged in work related to the preservation and protection
of civil liberties and human rights who had decided to form an
umbrella organization in the name of the Committee for Coordination
on Disappearances in Punjab (for short, the Committee).
The petitioner's case is that even though the Commission does
not have any authority in law of land to summon any person or
to make adjudication on the complaints filed before it and its
decisions, judgements and orders are not enforceable in any Court
of law, to achieve the object set out in the agenda prepared by
the Committee, the Commission had issued summons to many police
officers calling upon them to answer the charges which have been
leveled against them and to defend themselves before the Commission
and it had held sittings from August 8 to 10, 1998 at Gurdwara
in Sector 34, Chandigarh and the next sitting of the Commission
is scheduled to be held from October 23 to 25, 1998 at Ludhiana.
This functioning of the Commission, according to the petitioner,
amounts to setting up of a parallel judicial system and will result
in subverting the established judicial process in the country
and may pose a serious threat to the survival of the Republic
of India. It is likely to bring disrepute to the system of administration
of justice and amounts to interference with the same. The findings
that may be recorded by the Commission are likely to be used for
the purpose of publicity and may only result in demoralizing the
officers who at the risk to their lives curbed militancy and restored
normalcy in the State of Punjab. Petitioner has made reference
to the demand made by none else than Shri Balramji Dass Tandon
who is a member of the Council of the Ministers of Punjab that
the Commission should be restrained from summoning the officers.
A reference has also been made to the letter written by then Advocate
General, Punjab, Shri G.S. Grewal in which he decried the setting
up of the Commission.
Doubts regarding the validity of the Commission had also been
expressed by the Communist Party of India. In view of all these
circumstances, the petitioner prays for the grant of relief in
the terms already indicated herein before.
In response to the notice issued by the Court, some of the respondents
have filed written statements.
The Union of India, asserted that the functioning of the Commission
tends to encroach upon the judicial functions of the State. It
has also asserted that India has a very strong and independent
judicial system and institutions like National Human Rights Commission
who are seized of the various complaints that have arisen out
of the situation which prevailed in Punjab during the period of
trans-border terrorism in the State. According to the Union of
India, the Commission has no role to play other than assisting
the judicial Courts and the National Human Rights Commission in
its capacity of a private initiative. It has also been asserted
that the action of the Commission in issuing notices to public
servants are illegal and the officers have been advised to ignore
the same. In the end it is asserted that the Court should restrain
the Commission from doing anything which encroaches upon the judicial
functions of the State.
In the written statement filed by State of Punjab, it has been
averred that the commission is a private body having no legal
sanction behind it and it has no power to compel appearance of
government officials who are entitled to ignore the notices and
the so called summons issued to them. At the same time it has
been averred that the functioning of the Commission had not created
any law and order problem or infringed any law so as to call for
interference by the State in the affairs of this private body.
The State, it is submitted, is fully alive to its constitutional
and legal obligations and is closely watching the situation arising
out of the functioning of the Commission and would interfere whenever
any cause or situation arises warranting intervention by the State.
It has also submitted that the Government of India as well as
the State of Punjab has set up National Human Rights Commission.
Both these Commissions examine and investigate complaints relating
to violations of human rights as also the negligence on the part
of any public servant in preventing such violations and a number
of complaints pertaining to Punjab are under consideration before
these Commissions. Further, the stand of the State of Punjab is
that in view of the provisions contained in Section 36 (2) of
the Protection of Human Rights Act, 1993, the National Commission
or the State Commission are prohibited from interfering with any
matter after the expiry of one year from the date on which the
act constituting violation of human rights is alleged to have
been committed. Still further, the State of Punjab has averred
that in view of the availability of the effective statutory bodies
which can exclusively enquire into the allegations of violation
of human rights as also in view of the availability of civil and
criminal Courts and constitutional remedies under Articles 32
and 226 of the Constitution of India and effective statutory bodies
like National Human Rights Commission and the State Human Rights
Commission constituted under the Protection of Human Rights Act,
1993 who can enquire into the violations of human rights, the
People's Commission will not serve any useful purpose. However,
the stand of the State is that in view of the fundamental rights
guaranteed under the Constitution particularly under Article 19,
the State cannot interfere with the private initiatives such as
People's Commission unless these infringe any law or otherwise
give rise to a law and order problem.
The People's Commission itself was served through its Chairman
but none has put in appearance on its behalf. Instead an application
was moved on behalf of the Committee for permission to intervene.
This application was allowed and an affidavit was filed by Shri
Ram Narayan Kumar, a Convener of the aforesaid organization in
which preliminary objection has been taken regarding the maintainability
of the present writ petition on the ground that petitioner has
no locus standi to invoke the writ jurisdiction. It is also submitted
that the Commission derives its legitimacy from the guarantees
under Article 19 (1) of the Constitution of India which are sacrosanct
and can only be curtailed if the exercise of the right is in conflict
with imperatives of national security as indicated in Article
19 (2) of the Constitution of India. In the exercise of right
to collect information guaranteed under the Constitution, the
Commission has been constituted to inquire into the complaints
of human rights violations that are made before it. It has been
averred that perusal of the terms of reference of the Commission
would indicate that all proceedings of the Commission would conform
to the rules made under the Commissions of Inquiry Act and the
procedure laid in these rules and the principles of natural justice.
The Commission, it has been submitted has no intention of dealing
with or commenting upon pending matters. Since all the members
of the Commission have been high functionaries of the Indian Judiciary,
it was improper for the petitioner to raise doubts about their
honesty of purpose.
According to the Intervenor, the People's Commission has been
set up:
a) To develop a voluntary mechanism to collect and collate information
on serious human rights abuses committed by the State agencies,
and to pursue for justice.
b) To evolve a workable system of State accountability.
c) To lobby for India to change the domestic laws in conformity
with UN instruments on torture, enforced disappearances, accountability,
compensation to victims of abuse of power and other related matters.
d) To initiate a debate on vital issues of State powers, its distribution,
accountability and to work for a shared perspective on these matters
with concerned organizations and movements all over India.
According to him, these aims and objectives are also in consonance
with the Universal Declaration of Human Rights, Convention on
the Prevention and Punishment of Genocide, International Covenant
of Civil and Political Rights, the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
the UN Code of Conduct for Law Enforcement Officials, the UN Body
of Principles for the Protection of All persons under any form
of detention or imprisonment and the UN Principles on the Effective
Prevention and Investigation of Extra Legal, Arbitrary and Summary
Executions.
It is also submitted that right to know is a citizen's right.
The freedom of information is fundamental to all fundamental rights.
A People's Tribunal gathering information, collecting relevant
materials on an event of public importance, sorting them out judicially,
marshalling the evidence and conveying the whole testimony so
gathered, in the shape of a report, is the discharge of public
duty of the highest order. No one can, under the laws of India,
stop the right to give or receive information, except where it
is mischievously intended to interfere with or skew the course
of judicial justice. It is also submitted victims of police repression
cannot be prevented from expressing themselves to the People's
Commission and the officials from whom enquiries are made are
free to ignore or entertain the queries whereupon it will be open
to the People's Commission to reach its conclusions even without
their participation. It is also submitted that to say that People's
Commission aims at setting up a parallel judicial system to subvert
the judicial process is irrational in as much as the Commission
is not going to deal with or comment upon any pending matter.
As regards decided cases, it has been urged that any judgement
delivered by the Court of law is always open to critical analysis
and scrutiny. In view of this, if any one has brought to the notice
of the Commission that the Courts have been instrumental in defeating
or demeaning the fundamental rights of the citizens, the Commission
would be within its legal rights to examine such judgements in
decided cases. In its enthusiasm to justify the setting up of
the Commission, the Intervenor has submitted that the judiciary
has often been acting under the erroneous perception of limitation
of authority to enforce fundamental rights. In a society that
tends to relegate human rights to a place secondary to considerations
of political expediency, the judiciary has a crucial role that
holds the balance between democracy and dictatorship, between
life and death for thousands. Its integrity cannot survive if
we place its actions beyond all public scrutiny. After all, we
have an established history of political manipulation and interference
with the judiciary, which has explicitly aimed to destroy its
independence and integrity. It is acknowledged that our judiciary
with its beleaguered judges, its backlog of cases, corruption,
nepotism and political appointments vitiating its capacities for
integrity, courage and dignity is in an unenviable position. We
also know how the officers of the executive and the security agencies
have held judiciary's attempts to enforce human rights with disdain
and even outright hostility. For justifying this, he has relied
upon the comments made by many International Organizations like
Amnesty International, Human Rights Watch, Asia and Federation
of International des Ligues des Droits de L'Homme who commented
Indian judiciary lacking the teeth or the will to bring justice
in extraordinary situations that occured in places like Punjab.
On the basis of these averments, it is asserted that the writ
petition is devoid of any merit and should be dismissed.
Learned Deputy Advocate General, Punjab made a statement that
the State Government has already decided to move the Central Government
to make suitable amendments in Section 36 (2) of the 1993 Act
so that the State Human Rights Commission can take cognizance
of the complaints of human rights violations relating to the incidents
that took place prior to a period of one year. Sometime thereafter,
Shri Ashutosh Mohunta, counsel for the Union of India stated out
that the proposal sent by the Government of Punjab for amendment
of Section 36 (2) of the 1993 Act had not been accepted by the
Government of India. Thereafter, further arguments were heard
and the order reserved. At that stage also, we had given time
to the learned Advocate General/ Deputy Advocate General, Punjab
to inform the Court whether the Government is willing to constitute
an independent Commission under the Commission of Enquiries Act
to look into the circumstances related to terrorist violence and
the violations of human rights. In reply, the counsel representing
the State asserted that the Government of Punjab has again approached
the Central Government for amending Section 36 (2) of the 1993
Act. On August 13, 1999, the counsel for the Union of India stated
that the Government of India has once again rejected proposal
sent by the Government of Punjab. Learned Advocate General also
stated that the State Government had taken a decision not to constitute
a Commission under the Commission of Inquiry Act, 1952.
We shall first deal with the preliminary objections raised by
Co-ordination Committee for Disappearances in Punjab and the Intervenor
to the maintainability of the writ petition on the ground that
no writ lies against a private body like People's Commission and
in any case the petitioners do not have locus standi to seek a
restraint order against the functioning of the People's Commission.
The other objection of the Intervenors is purely hypothetical
and conjectural and has been evinced at a premature stage, which
renders the petitions frivolous and vexatious.
In our opinion, the objection to the locus standi of the petitioners
deserve to be rejected. The petitioner, Sudarshan Goel, Jatinder
Pannu may not have been directly affected by the activities of
the militants in Punjab but the other petitioners namely Ajit
Singh, Mohan Singh and Narinder Singh are direct sufferers of
the actions of the militancy. They have lost their near and dears
at the hands of the militants. Therefore, it is not possible to
accept the submission of the counsel for the non-official respondents
and intervenors that the petitioners should be non-suited on the
ground of locus standi. Otherwise also, we do not find any valid
ground to decline consideration of the petitioners' case on merits.
The objection raised to the maintainability of the petitions has
to be seen in the light of the fact that the petitioners have
approached the Court for issuance of a writ in the nature of mandamus
directing the Union of India, State of Punjab to restrain respondent
no. 3 from acting in a manner which would amount to subversion
of the judicial system prevalent in the State. The main allegation
of the petitioners that the constitution of the Commission is
nothing but an attempt to set up a parallel system of adjudication
of matters like of a particular character, which if allowed, will
shatter the faith and confidence of the people in the existing
judicial system.
It is difficult to comprehend as to how a private body can be
allowed to do so. Neither any functionary of the State nor any
private individual can be allowed to arrogate power to adjudicate
and decide the disputes and usurp judicial powers. Apart from
this, the Charter framed by the Intervenor includes a clause which
empowers the Commission to reopen the decided cases cannot be
done without following the due procedure of law. Moreover, in
our opinion, neither any functionary of the State nor any private
individual can have the right to arrogate unto itself the power
to adjudicate and decide the disputes except when permitted by
law, enacted by the Parliament or the State Legislature. We are,
further of the view that power sought to be conferred on the Commission,
if upheld, would amount to an attack on the established system
in which orders and judgements of the Court are treated as final
unless the same are reversed, modified or set aside by the appellate
Court(s) or reviewed by the Court concerned. The Charter, according
to which the Commission is going to work certainly impinges upon
the functioning of the State and, therefore, we do not find any
cogent reason to non-suit the petitioners by holding that he does
not have the locus standi. For taking this view we draw support
from the decision of the Andhra Pradesh High Court in T. Anjaneyulu
and another Vs. D.T. Naik and others AIR 1997 A.P. 237. We shall
now deal with the main issue as to whether the People's Commission
as set up by the Charter framed for governing its functioning
and released by the Intervenes impinges upon any of the functions
which the State Executive is obliged to discharge in relation
to the collection of information and investigation into any violations
of human rights for eventual adjudication by the Judiciary. According
to the Intervenors, which is a body that claims to be responsible
for the initiative, the setting up of the Commission does not
in any way impinge upon the functioning of the Judiciary. The
Commission operates only as an information gathering body which
has been set up to tabulate the cases where excesses were committed
by the State agencies in Punjab in between the years 1979 to 1997.
The Committee asserts that this function the Commission is entitled
to carry out in the exercise of the right of information guaranteed
to an individual by Article 19 of the Constitution.
While there can be little dispute about the submission that right
of a citizen to freedom of speech has by judicial precedents been
extended to that he has a right to receive and disseminate information
and the recognition of this right is not even disputed on behalf
of the petitioners in the petitions. We will have to determine
whether this right confers on an individual or group of individuals
a right to assume to himself or themselves the right and obligation
to receive complaints regarding any misdemeanor committed by State
officials and after investigating these indict the persons responsible
for the same. With this end in view it becomes necessary to advert
to the Rules of the People's Commission on Human Rights Violations
in Punjab which have been framed by the Committee indicating the
parameters within which the People's Commission would function.
From a perusal of the above provisions, it becomes clear that
People's Commission apart from receiving and tabulating the complaints
of persons who claim to be victims of human rights violation at
the hands of the State and its functionaries during the period
extending from 1979 to 1997 can have the complaints investigated
by the Investigators attached to the Commission who will after
going into the allegations submit a report, which is termed as
indictment to the Chamber of Judges. The Chamber of Judges then
can call upon the person against whom the complaint is to present
himself whereupon the Chamber of Judges explain the indictment
and record the evidence in his presence affording an opportunity
to the person so indicted to cross examine the same.
From the above discussion, it is apparent that the People's Commission
is in fact trying to achieve under the garb of exercise of this
right something much more than receiving and disseminating information
which the citizen is entitled to as has been held in Secretary,
Ministry of Information and Broadcasting, Govt. Of India and others
Vs. Cricket Association of Bengal and others 1995 (2) SCC 161
and in fact what the Commission is arrogating on itself is the
function enjoined on the State executive and the judiciary especially
under the Cr.P.C. as well as under the Protection of Human Rights
Act of receiving information, having it investigated into and
adjudicated upon by the machinery set up by the State for the
purpose. By setting up the Commission and framing the Charter,
the Interveners have tried to project the Commission as a judicial
body which will function side by side with the official machinery
of the State to go into the grievances that any person may have
against the acts of omission and commission impinging upon the
human rights that might have been done by the State functionaries
during the period extending from 1979 to 1997 because Article
21 of the Constitution provides that no one shall be deprived
of his life or personal liberty except by procedure established
by laws. This effort of the Committee in as much as it seeks to
set up a parallel machinery and lay down procedure for investigation
into the trial of human rights violation is nothing but affluent
to the system envisaged by the Constitution of India. In a way
the Commission seeks to arrogate to itself powers conferred under
the Constitution upon the judiciary and statutory bodies like
Human Rights Commission, therefore, cannot be sustained even though
the initiatives taken by the Intervenor for receiving information
regarding human rights violations for the purposes of tabulation
may in itself be a laudable effort. Its attempt to undermine the
authority of various institutions of the Constitution cannot be
approved.
The assertion that Commission has been set up only after SAD/BJP
Government had failed to carry out its electoral promise of setting
up of a Commission to go into human rights violations and also
to determine the reasons for unrest which prevailed in the State
of Punjab during the period from 1979 to 1997 would by itself
call for sanction on the part of the initiatives which impinge
upon the obligation of the State to investigate into, for adjudication
upon the complaints that may be received by it in relation to
the excesses alleged to have been committed by the functionaries
of the State during this period because it would always be open
to the Committee to have information and after tabulating these
as violations, approach the State for getting investigation conducted
into them and in case the response of the State was not adequate
to have approached the Courts for redressal of their grievances.
It is not disputed before us and as a matter of fact it has been
brought out in the pleadings that a number of cases have been
initiated against the functionaries of the State for human rights
violations committed by them during this period in one such case
which was initiated at the behest of Paramjit Kaur against the
State of Punjab and others the Hon'ble Supreme Court had ordered
the Central Bureau of Investigation to investigate into the abduction
and disappearance of Shri J.S. Khalra, General Secretary, Human
Rights Wing of Shiromani Akali Dal and cremation of thousands
of dead bodies by the police in Amritsar District. On the receipt
of the report, the Apex Court requested the National Human Rights
Commission to go into the matter. In view of this, instead of
setting up the People's Commission to go into the human rights
violations and making an effort to project it as a parallel judicial
body, the Intervenors should have limited themselves to the collection
of information of alleged human rights violations and after tabulating
them should have presented before the State for a detailed enquiry
into it and if need be should have taken the assistance of the
Court. The setting up and projecting of People's Commission as
a parallel judicial body which also performs the functions of
the State regarding receiving of complaints and investigation
into them can also not be justified in view of the fact that the
same may adversely affect the public order, discipline and the
society and encourage the setting up of similar Commissions by
other individuals or groups of individuals and thereby undermine
the public peace, safety and tranquility of society.
The matter can be looked from another angle. The upholding of
such a private initiative in view of the provisions of Article
19 (1) (a) of the Constitution which ultimately affects the constitutional
guarantees provided under Article 21 of the Constitution cannot
be encouraged. Where two fundamental rights come into conflict
and one is sought to be extended to the extreme and logical conclusion
at the expense of the other, the Court will be slow to recognize
and upholding such an extension of the fundamental right which
impinges upon and restricts the purview of the other fundamental
right.
Another aspect of the case which has been debated before us is
the failure of the Government to set up an independent Commission
under the Commission of Inquiries Act which according to the respondents
had occasioned the setting up of the People's Commission to some
extent justifies its existence. While the State of Punjab has
taken a categorical stand against the setting up of the Commission
under the Commission of Inquiries Act but they had time and again
highlighted their effort to seek an amendment to the provisions
of Section 36 (2) of the Protection of Human Rights Act by the
Central Government. During the period, the petition remained pending
before us that the State Government had made several unsuccessful
attempts to persuade the Central Government to increase the limitation
from one year to ten years. Although it is none of our function
to go into the validity of the refusal of the Central Government
to accede to the request of the State Government yet it would
not be out of place to consider the propriety of limitation in
the light of the circumstances that the Commission is called upon
to enquire into violations of human rights which as already indicated
by us comprised of the right relating to life and liberty, equality
and dignity of an individual guaranteed by the Constitution or
embodied in the International Covenants and are enforceable by
the Courts in India. These rights which are enshrined in Chapter
III of the Constitution are sacrosanct in case an individual seeks
to enforce them by approaching the High Court through a writ under
Article 226 of the Constitution or approaches the Supreme Court
under Article 32 of the Constitution they would not be subject
to narrow law of limitation which is sought to be incorporated
in Section 36 (2) of the Act.
Looked at from another angle the heinous offences of abduction
and murder, they would not be covered under the law of limitation
provided in Section 467 Cr.P.C. and will be subject to the limitation
of one year. The complaints of heinous nature like murder, abduction,
rape etc. can be taken cognizance of the Criminal Courts in India
without any limitation standing in the way. Furthermore, in appropriate
cases which came up before the High Court or the Supreme Court,
a request can always be made to the National Human Rights Commission
or the State Human Rights Commission set up under the provisions
of the Protection of Human Rights Act for going into alleged human
rights violation and in such a case neither the National Human
Rights Commission nor the State Human Rights Commission would
be bound by the limitation provided under Section 36 (2) of the
Act. This is apparent from the fact that in Writ Petition (Crl)
No. 497 of 1995 (Paramjit Kaur Vs. State of Punjab and others)
decided on 12.12.1996, the Apex Court requested the National Human
Rights Commission through its Chairman to examine the matter in
accordance with law and determine all the issues raised before
the Commission by the learned counsel for the parties and when
the objection regarding the limitation under Section 36 (2) of
the Act was raised before the National Human Rights Commission,
it was overruled with the following observations:
"The order of the Supreme Court must be so read as to effectuate
it. The Commission, the Governments and the parties are expected
to act in aid and effectuation of that order and not to frustrate
it. The order must be construed reasonably and harmoniously. The
expression "to have the matter examined in accordance with
law" is not necessarily the same thing as to function strictly
within the limitations of the Act." The Supreme Court made
the order in exercise of the plenitude of its jurisdiction under
Article 32 of the Constitution. That for the parties and the Commission,
has the effect and force of law. The reasonable way to construe
the order and effectuate it is to hold that the Commission was
referred to only for purposes of identifying it as the body to
which the Supreme Court was turning, in this instance for the
protection of fundamental rights. Once the identification was
made, it became a body sui-generis as the one chosen by the Supreme
Court for carrying out its behest. The shackles and limitations
under the Act are not attracted to this body as, indeed, it does
not function under the provisions of the Act but under the remit
of the Supreme Court. The provisions of the Act do not bind or
limit the powers of the Supreme Court in exercise of its powers
under Article 32. It is, therefore, reasonable to hold that the
Supreme Court designated the Commission as a body sui-generis
to carry out the functions and determine issues as entrusted to
it by the Supreme Court. To read the order otherwise is to render
it otiose.
In view of the above discussion, we do not consider it necessary
to deal with the large number of judicial precedents cited at
the Bar by the learned counsel for the parties on the ambit and
scope of Article 19 (1) and Article 21 of the Constitution of
India. We also refrain from making any observations on the propriety
of the persons who at one time held high constitutional offices
to take up assignment, which according to the petitioners, directly
impinges upon the authority of the Constitution. In our opinion,
it is for the holders of such constitutional offices to decide
whether after having taken oath to maintain and preserve the constitution
and its institutions it will be appropriate for them to associate
themselves with the activities, which undermine the authority
of the State, established by law.
In the result, all the three writ petitions are disposed of in
the following manner:
People's Commission and the Intervenors are restrained from holding
public sittings or making investigations into the cases, which
have already been decided by the Courts or are pending before
the Courts. They are also restrained from issuing summons to the
officers of the Government and other agencies to appear before
the Commission for the purpose of so called investigation/inquiry
into the complaints of alleged violation of human rights committed
by the functionaries of the State. It is however, made clear that
this order will not prevent respondent no. 3 and the Intervenors
from collecting information regarding the violation of human rights,
if any, by the State and its agencies and approach the Court for
reference of such cases to the State Human Rights Commission and
the National Human Rights Commission for appropriate consideration.
sd/-
Amar Dutt J.
G.S.Singhvi J.
A JUDGMENT SANS REASONING - A Critical Study
The Judgment imposing curbs on the activities of the People's
Commission by the Court was widely criticized in the media as
well as legal fraternity. It was a directionless, unreasoned and
politically motivated judgment and many times, the judge seemed
to have run amock in expressing his venomous approach against
the Sikh struggle in Punjab during the decade long violence. It
threw to winds the protection under Article 19 (1)(a) of the Constitution
of India, which guarantees freedom of speech and expression. The
activities of the People's Commission had remained fully within
the ambit of 'liberty' granted under Chapter III of the Constitution
of India. It is in fact a right to hold one's opinion on the basis
of some fact-finding inquiry. It was said that a non-official
body like the commission is not competent to examine such complaints,
which is the function of State agencies only. The critic's assumption
is not un-warranted and flies in the face of any number of such
commissions which have enquired into matters of public importance
both in this country and outside. The Commission was just like
the independent Commission headed by Mr. Justice Hosbet Suresh
in Mumbai for finding truth behind the Mumbai-riots in 1993 after
which the Mumbai Government constituted Sri Krishna Commission
under the Commissions of Inquiry Act. When the activities of that
independent Commission were not taken as unlawful, then how could
the People's commission on human rights violations in Punjab,
be called unlawful? The curb on the activities of the People's
Commission amounts to pre-censorship, which is unconstitutional
and illegal. The formation of the People's Commission was an attempt
to achieve the legitimate goal by invoking one's right to action.
Further, the activities of the People's Commission should have
been banned only if there was any threat to public safety or if
the interest of the State and its subject demanded such action.
And before that the State has to give specific reasons for such
decision, but going through the affidavit of the responsible authority
of the State Govt., it shows that the activities of the People's
Commission have not transgressed article 19(1)(a) of the Constitution
of India. The High Court also ignored the argument that the Commission
neither aimed at becoming a Court nor supplanting a Court of Law
and had never subverted the Rule of Law.
It also completely escaped the Court's notice that the primary
and sole purpose of creating a Constitution, Rules and Regulations
of the People's Commission was to ensure transparency, fairness
in its deliberations and discussions. The Commission had brought
three retired Judges of the High Courts only with the aim that
since these legal luminaries would be the best persons to understand
the constitutional limits of the Commission and they would adopt
fairness at every step. The notice issued by the Commission and
published in all newspapers calling upon all the policemen against
whom a complaint had been filed, to answer to the charges leveled
against them, was a step towards its purpose of providing opportunity
to every person against whom allegations were being made to present
their views. With a view to prevent any act of coercion for the
police officials, the notice had used the term " requested"
and not "directed" which proves that the People's Commission
understands its limitation.
It needed pointing notice of the Court, that the People's Commission
was formed only because the State failed to fulfill its obligation
of constituting a Judicial Commission to go into the causes and
finding out the persons or individuals responsible for such carnage.
Had the State Government constituted an independent Commission
under the Commissions of Inquiry Act, the C.C.D.P. would not have
taken the cudgels to form the People's Commission. Even at one
stage, Mr. Justice G.S.Singhvi asked the Advocate-General of Punjab,
to make their stand clear on the question, as to whether the party
which heads the State Government today had at any time promised
to form such a judicial commision during the polls and if yes,
then why it failed to fulfil that promise ?
Inspite of the high court's order, we must say that the constitution
of the People's Commission and its function in finding out the
truth behind the decade long violence, was justified and in accordance
with the law of the land. The court made great mistake in accepting
the Locus-Standi and Bonafide of the Petitioner-Advocate who had
filed the Petition in the garb of Public Interest, but showed
private interest of the persons who are to be affected by the
findings of the Commission. The petition had been filed with the
malafide intention to sabotage the sincere attempts of the human
rights organisations in its effort to uncover the truth.
In all democracies, it is accepted without debate that people
have an inherent right to know the truth about human rights violations
and in the absence of any official enquiry, there will be people's
commissions. Another untenable argument for banning the people's
commission is that it is not wise to reopen old wounds. This is
a most astounding preposition, completely contrary to human rights
jurisprudence and international covenants. The danger of permitting
extra-legal action in justifying flagrant violation of human rights
will be a permanent danger to the life and security of a common
man. As it is, the Punjab police even now feels itself free to
indulge in illegal acts.
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