Amnesty International - ASA 20/002/2003
Torture and custodial violence continue to be regularly reported
in Punjab, despite the end of the militancy period in the state in
One reason for the continuation of serious human rights violations
after the militancy period is that a decade of armed insurgency and
police counter insurgency operations left its mark on the way the
police and the criminal justice system function in the state. Another
reason is that virtually none of the police officers responsible for
a range of human rights violations - including torture, deaths in
custody, extra-judicial executions and "disappearances"
during the militancy period - were brought to justice, creating an
atmosphere in which state officials appear to believe that they can
violate people's fundamental rights with impunity even today.
In this report, Amnesty International (AI) makes the link between
the impunity enjoyed by police officers during and after the militancy
period and the continuation of torture today. This link sends a warning
to states in India presently ravaged by armed conflicts such as Jammu
and Kashmir and states in the northeast that perpetrators of human
rights violations must be held to account in situations of widespread
and prolonged violence, if long-term repercussions for the enjoyment
of human rights are to be avoided.(1)
The report focuses on abuses committed in police custody. AI recognizes
that during the militancy period torture and other forms of violence
were widely used also by armed opposition groups engaged in a conflict
with the security forces in Punjab. The organization condemned these
human rights abuses in the past and continues to do so in the case
of the ongoing conflicts in Jammu and Kashmir and the northeastern
states. It believes that torture must be condemned whatever the identity
or position of the perpetrator and that victims of human rights abuses
by armed opposition groups or other actors have the same right to
justice and reparation as the victims of police abuses.(2) The main
reason for focusing exclusively on the continuation of torture in
police custody in this report is that the majority of the armed opposition
groups are today inactive in Punjab and AI has received no reports
of acts of torture perpetrated by their members after the end of the
militancy period. Similarly, the issue of impunity for abuses committed
by these groups during the militancy period is marginal, as most of
their members in the state were arrested or killed by security forces
in counter insurgency operations in the early 1990s.
This report is part of a series of documents on torture in India
produced in the context of AIs ongoing international Campaign Against
Torture. Recommendations made in it should be read in conjunction
with the document "India: Words into action: Recommendations
for the prevention of torture", submitted to the Indian government
in December 2000 and published in January 2001.(3) In March 2001 AI
received a two-page response from the government to that report: this
pointed out that Indias signature of the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in October
1997 marked a commitment to the prevention of torture; that effecting
further improvements wherever required was an ongoing process; and
that the government was drawing up an Action Plan as part of the UN
Decade on Human Rights Education. The letter concluded by stating
that we welcome all useful suggestions made in the report and shall
have no hesitation in taking steps to implement them.
The present report stands therefore as a further reminder of the
urgent need for the Indian government, as well as state governments,
to take active steps to translate these commitments into action so
that the pattern of torture is ended. It follows a report on violence
against women in Uttar Pradesh and Rajasthan and another on torture
in West Bengal.(4)
AI sent a draft of the present report to the Government of India
and to the Government of Punjab one month before publication, inviting
their comments on its contents in a spirit of constructive dialogue.
A letter (received by fax), from the High Commission of India in London
on 14 January 2003 stated however that "The report on Punjab
has been examined by the concerned authorities in India," and
"that in view of the sweeping, judgemental and non-substantiated
nature of much of the contents, it really does not merit a formal,
written response". AI greatly regrets that specific cases as
well as the larger issues of impunity and the continuation of torture
in the state raised in the report have not been addressed by the Indian
Concerns about the use of torture have been raised by AI during the
Campaign Against Torture about a wide range of countries, including
Brazil, China, Pakistan, the Russian Federation and the USA.
I. Background: The Militancy Period In Punjab And
A Decade Of Violence Shapes Policing Practices
The decade of violent political opposition in Punjab - which lasted
from the mid-1980s to the mid-1990s and is known as the period of
militancy and its pattern of unlawful and indiscriminate arrests and
killings have left a legacy for policing practices in the state. In
a decade of violence about 10,000 civilian lives were reportedly lost,
while hundreds of people were detained without charge or trial. Thousands
of disappearances or extrajudicial executions were allegedly carried
out by the police as part of a deliberate policy to eliminate armed
opposition groups as well as their supporters. The unchecked use of
torture eroded police professional and investigative skills. The protection
from prosecution provided by security legislation during this period
weakened police officers sense of accountability to the judiciary
and society and encouraged continuing misuse of police powers.
The militancy period began in the early 1980s when a movement within
the Sikh community in Punjab turned to violence to achieve an independent
state for the Sikhs, which they would call Khalistan.(5) Some sections
of the ruling Congress party, whose support base included urban Hindu
traders, fomented this radicalization in order to weaken their main
parliamentary opposition in the state, the Akali Dal party, which
represented the Sikh peasantry with a more moderate agenda. In 1982
the Akali Dal launched a civil disobedience campaign against a decision
to divert a river vital to Sikh farmers in the state. A number of
Sikh organizations were banned and several leaders of militant groups
took shelter in the Golden Temple in Amritsar.
The radicalization of the movement for Khalistan was met with arrests
under a series of national security laws that were introduced during
the 1980s to meet the terrorist threat in Punjab but were enforced
also in other parts of India and maintained for several years after
the end of the militancy period in Punjab. The 1980 National Security
Act (NSA), amended in 1984 because of the extremist and terrorist
elements in the disturbed areas of Punjab and Chandigarh, provided
powers to preventively detain people suspected of activities prejudicial
to the defense of India, the relations of India with foreign powers
or the security of India for up to two years in Punjab and up to one
year in the rest of India(6). The Terrorist Affected Areas (Special
Courts) Act followed the NSA in 1984. The Terrorist and Disruptive
Activities (Prevention) Act, in force from 1985 to 1995, subsequently
provided the police in Punjab with sweeping powers of arrest and detention.
These laws left the heaviest legacies of the militancy period on policing
methods in the state and the rest of the country. They explicitly
freed the police from accountability to the criminal justice system
for actions undertaken in good faith, allowing officers to believe
themselves beyond the reach of law.
The Sikh armed opposition groups responded to the arrests by stepping
up their attacks against the police, elected representatives, civil
servants and both Hindu and Sikh civilians. In 1983 the Government
of India imposed direct rule on Punjab in the face of the increased
violence: the state Legislative Assembly and government were therefore
dismissed and the administration of the state came under the control
of the central government, through the Governor of the state. From
this moment the Punjab Police started to take orders from Delhi and
so stopped being accountable to any political institution within the
state. Tensions with the civil administration in the state reportedly
freed the police from any accountability to this civil authority as
Human rights violations by the police during the decade of militancy
were widespread. Indiscriminate and arbitrary arrests continued in
this period, setting a pattern which continued until the mid-1990s.
Civilians were often arrested solely for being related to or living
in the same village as members of armed opposition groups. Such civilians
were often placed on an unofficial blacklist circulated to all police
stations and were liable to be arrested again after their release
on any occasion when there was a militant action in the area. Arrests
often occurred when a quick solution for a case was needed or simply
to fulfil an arrest quota. Arrest procedures were frequently not followed
and the arrest was often not recorded in the daily log of the police
station, thus remaining completely unofficial and leaving detainees
vulnerable to further abuses. Detainees were frequently moved from
one police station to another, or to unofficial interrogation centers,
making it difficult for their families and lawyers to trace them.
Torture was widespread and used both as a substitute for investigation
and as punishment. The police routinely disregarded court orders to
bring detainees before a court, and judges were threatened to deter
them from taking action against the police. When detainees died in
police custody, the police organized the post-mortems and the cremations
before any independent investigation could be carried out into the
cause of death. Undercover agents were also unofficially recruited:
these were often former members of armed opposition groups offered
not to be killed or tortured in exchange for their collaboration with
the police. They were reportedly used to infiltrate militant groups,
to kill militants or to discredit them with violent actions in their
names. Disappearances and the killing of members of armed opposition
groups and their supporters by the police in real or staged "encounters"
were frequent. They were tolerated by the police authorities and government
as part of a policy to eliminate armed opposition groups(7).
The structure of the police force itself underwent some important
changes in order to meet the threat of violent opposition: a system
of monetary rewards was set up, reportedly with the sanction of the
central government, to encourage police officers to kill militants.
The system was not codified in any police manual or law, but a few
circulars issued by the Punjab Home Department reportedly allowed
for the granting of these rewards. The militants were categorised
in different lists, which were given by the Director General of Police
(DGP) himself and circulated to the police stations. Rewards were
different according to the category the militant killed had been put
into, and they could vary from around 50,000 Rs (about US$ 1,030)
to 500,000 (about US$ 10,300) in the early 1990s. It is reported that
the central government created a special fund to finance these rewards,
the fund being operated only by senior police officers at state level.
At the level of the police stations the system of rewards reportedly
generated practices of misappropriation and corruption, the trend
being for senior officers to get the major part of the reward for
themselves, leaving only smaller amounts to the lower ranked policemen
who actually carried out the work. A system of out of term promotions
was also set up in this period for those police officers who distinguished
themselves killing a large number of militants. This system was reportedly
established in order to bring up a new cadre of young officers who,
it was believed, would be better equipped for the fight against terrorism.
In 1984 the violence on both the police and the militants' side reached
such levels that the Indian Army was deployed and the Armed Forces
(Punjab and Chandigarh) Special Powers Act was introduced in designated
disturbed areas of Punjab. In these areas the army was granted powers
to shoot to kill, to enter and search any premises, and to arrest
any person without warrant and with immunity from prosecution. The
army stormed the Golden Temple in June1984, killing thousands of civilians
together with the armed militants who had retreated to its premises.
In retaliation, Prime Minister Indira Gandhi was killed by her Sikh
bodyguards in October 1984, triggering massive anti-Sikh riots in
the Indian capital, New Delhi, and other parts of the country, in
which thousands were killed. The alleged connivance of a section of
Congress leaders in the massacre and the failure of the authorities
to prosecute those responsible further radicalised the Sikh community
In July 1985 the Government of India reached an accord with the Akali
Dal, which subsequently won elections for the restored state assembly
when direct rule was lifted. The accord, however, was never fully
implemented by the central government, causing fresh alignments of
some splinter elements of the party with the militants. In May 1987
the Akali Dal state government fell, and direct rule was again imposed.
State assembly elections were cancelled amid increased violence. Armed
opposition groups assaulted and killed Hindu and Sikh civilians, targeting
civil servants, politicians, journalists, businessmen and moderate
Sikh political leaders whom they considered to have colluded with
the Government of India.
In 1991 a catch and kill counter-insurgency policy was adopted by
Punjab Police prior to new elections. These were held in 1992 but
were widely boycotted by the Sikh electorate and won by the Congress
party. A new Chief Minister, Beant Singh, was sworn into power. Political
analysts and commentators affirm that the low rate of support for
the Congress government in the state compelled Beant Singh to seek
the close cooperation of the Director General of Police K.P.S. Gill
and therefore not to interfere with his methods of fighting the armed
opposition groups in the state: the police were thus again left almost
free from political scrutiny within the state. In an intensified crackdown
on the opposition, the police killed several human rights activists
as well as many members of armed opposition groups, their families
and supporters. By 1993, the authorities declared that terrorism had
been defeated and that normality had returned to Punjab. Arrests of
members of armed opposition groups are still occasionally reported,
although such groups are believed to be inactive.
After The Militancy Period: What Should Punjab Do With Its Past?
A coalition of the Shiromani Akali Dal (SAD) party and the Hindu
nationalist party, Bharatiya Janata Party (BJP), won state elections
in 1997. The new administration, headed by Chief Minister Prakash
Singh Badal, promised the release of detainees charged with offences
under the lapsed Terrorist and Disruptive Activities (Prevention)
Act (TADA); improved accountability for police officers; a Truth Commission
to investigate human rights violations during the militancy period;
and the prosecution of police officers accused of human rights abuses
committed during the decade of unrest.
Few of these promises materialized during the SAD-BJP tenure. Only
a few TADA detainees were released, and at present the number still
detained under the lapsed Act and awaiting trial has been estimated
at between 35 and 100. TADA is reported to be still occasionally used
to arrest suspects in connection with crimes committed before it lapsed.
Some refugees from Punjab - deported to India from western countries
in recent years on the ground that after the end of the militancy
period they would no more be at risk in Punjab - have been detained
and charged under the lapsed Act on their return.
Davinder Pal Singh Bhuller was expelled from Germany after
his application for political asylum was rejected. He was taken into
custody when he arrived at Delhi airport on 18 January 1995, in connection
to his alleged involvement in a car bombing in New Delhi in 1993 in
which 12 people were killed and 29 injured. He confessed to involvement
in the killings but did so only once, allegedly under torture, and
later retracted his confession.
In August 2001 a designated TADA court passed the death sentence
on him. In December 2001 an appeal against the death sentence was
made to the Supreme Court. While the court was making its decision
armed militants perpetrated an attack on the Lokh Sabha (the Indian
parliament) on 13th December 2001 and observers believe that heightened
rhetoric about the threat of "terrorism" in the country
and a hardening of government policies may have influenced the decision.
The appeal was rejected by a three judge bench; two judges believed
the death penalty should be upheld but, unusually, the other ruled
that the accused was innocent. A petition questioning the controversial
appeal decision was upheld by a three judge bench of the Supreme Court
in mid December 2002. A mercy petition is shortly due to be filed
by his lawyers.
No Truth Commission was established. The Government of Punjab failed
to take up a proposal made by the Punjab and Haryana High Court in
August 1999 that a commission of inquiry could be established by the
government itself under the Commission of Enquiry Act, 1952, to investigate
reports of hundreds of alleged disappearances in police custody and
suspected extrajudicial executions. The authorities did not clearly
distance themselves from proposals of an amnesty for at least 500
police officers who have been charged with human rights violations
allegedly committed in their official capacity during the militancy
period (see below). Similarly, the government sanction required by
law to initiate prosecution against police officers involved in criminal
cases was often refused in the state.
A positive achievement was the establishment, under the 1993 Protection
of Human Rights Act, of the Punjab Human Rights Commission (PHRC)
in 1997. In many cases during the last five years, however, the state
government has not complied with recommendations made by the Commission,
particularly to pay compensation to the victims of police abuses.
The role of the Commission is examined in Chapter 5.
In February 2002 state elections brought to power a new Congress
government in the state, led by Chief Minister Amarinder Singh. By
that time all the themes related to justice and impunity - including
an inquiry into human rights violations which occurred during the
militancy period and the issue of accountability of the police force
- had disappeared from the political debate in the state, which focussed
instead on corruption in public affairs, economic development and
the financial difficulties of the state. The Chief Minister stated
his government's intention to "forget the past and think about
the future"(8), but indicated also that "the state government
would fight the legal cases of those police officers who fought against
terrorism and secure their release"(9). Police reforms and the
isolation of police from political pressures did not seem to be priorities
of the new government, which undertook a major reshuffle of all senior
police officers in the state as soon as it took office(10), thus potentially
establishing channels of influence for the government on the police
force. Observers have also pointed to a renewed resort to the political
use of the police force by the state government when the police was
used to crack down on political opponents in November 2002(11). A
strong political will is required if the practice of using the police
force for political ends is to be stopped in the state.
II. The Fight For Justice After The Period Of Militancy
Since the end of the period of militancy individuals and human rights
organizations have pressed the Government of India and the National
Human Rights Commission (NHRC) to provide justice and reparation to
the victims of police abuses which took place during that decade in
Punjab. Their appeals have been met with resistance, refusals or protracted
a. "Disappearences", Possible Extrajudicial Executions
And Illegal Cremations
In January 1995 the human rights wing of the Shiromani Akali Dal
party alleged that it had evidence showing that, during the period
of militancy, Punjab Police had carried out secret cremations of hundreds
of "unclaimed" bodies in the crematoria of Amritsar district.
The party said that some of the bodies were those of people who had
"disappeared" in police custody and had been extrajudicially
Jaswant Singh Khalra's Disappearance
In September 1995 Jaswant Singh Khalra, a member of the Shiromani
Akali Dal research team investigating the cremations, was arrested
by the Punjab Police and subsequently disappeared while in police
custody. His fate remains unknown.
An inquiry by the Central Bureau of Investigation reported in July
1996 that nine police officials were responsible for his abduction,
and they were subsequently charged with murder. During their trial,
which is ongoing, police officers have delayed proceedings and intimidated
witnesses, judicial orders have been disregarded, evidence suppressed
and members of the Khalra Action Committee (a group of relatives and
colleagues formed to pursue investigations into his fate) have themselves
suffered intimidation and abuse(12).
In June 1999 Kuldip Singh, who was an eye-witness to J.S. Khalra's
murder, testified that he was threatened by police to withdraw a statement
filed by him with the Central Bureau of Investigation (CBI) in relation
to the case. Kikkar Singh, another witness, was charged with five
criminal cases by Punjab Police after giving testimony which implicated
police in Khalra's illegal detention and torture. Rajiv Singh Randhawa,
the third key witness in the case, was detained by police in early
July 1998 and again in September 2000; on both occasions his arrest
took place just days before hearings of Khalras case were due for
recording evidence, including that of Rajiv Singh. In July 2000 the
Punjab Human Rights Commission ruled that the charges against Rajiv
Singh were concocted by police as a means of dissuading him from giving
evidence against police(13).
In an unexpected development after years of delay, the case was recently
scheduled for recording of evidence in a Sessions court. By the time
evidence started to be recorded in November 2002 Kikkar Singh, following
years of harassment, denied having been witness to Khalra's illegal
detention and torture.
A few months earlier a human rights activist following the trial
commented on the developments in the judicial proceedings in Khalra's
case: Everyone was ready to give evidence for years but the evidence
was never recorded when the witnesses were ready, willing and available.
Because of this change in the situation [ie. the witnesses might have
turned hostile following police harassment] false cases are now not
being registered against the witnesses. No wonder now that the case
has been fixed for recording of evidence.
In April 1995 the Committee for Information and Initiative on Punjab
(CIIP), a non-governmental human rights organization based in New
Delhi, successfully petitioned the Supreme Court for an investigation
of these allegations(14). The Central Bureau of Investigation (CBI)
was entrusted by the Supreme Court to carry out the investigations
and, having analyzed the evidence available in three crematoria in
Amritsar, found that 2,097 bodies had been illegally cremated by police,
585 of which were fully identified, 274 were partially identified
and 1,238 were unidentifiable. The CBI indicated that it was ready
to initiate prosecutions against police officials in several cases
but did not make its findings public, arguing that disclosure could
hamper further investigations and would cause "embarrassment".
In December 1996 the Supreme Court ordered the National Human Rights
Commission (NHRC) to examine the CBI's findings. After lengthy disputes
over the legal status of its inquiry, in January 1999 the NHRC stated
that it would limit its investigations to the cremations of 2,097
bodies investigated by the CBI in Amritsar district and would invite
claims for monetary compensation from the families of the victims.
This decision excluded from the investigation similar cases of "disappearances"
and suspected extrajudicial executions reported from the other 16
districts of Punjab, despite the fact that the CIIP in the meanwhile
had submitted to the Supreme Court partial records for over 1,700
additional cases from outside Amritsar district, thus indicating that
the pattern of extra-judicial killings might have extended to the
whole state.(15) Out of the 2,097 cases finally retained for investigation,
in only 88 cases did the NHRC receive claims from the legal heirs
of the deceased. Out of these, only 18 cases were forwarded to the
State of Punjab for clarification, while the others were considered
outside the NHRC's jurisdiction or otherwise "disputed".
On the 18 cases received from the NHRC, the State of Punjab took the
position that "without examining the correctness of the claims"
and "without going into the merits of the matter, compensation
may be determined". On 18 August 2000 the NHRC accepted this
position explaining that the government has neither conducted any
detailed examination in these cases on merits nor does it admit its
liability but it offers payment of compensation The order continued:
For this conclusion, it does not matter whether the custody was lawful
or unlawful, or the exercise of power of control over the person was
justified or not; and it is not necessary even to identify the individual
officer or officers responsible/ concerned.
In January 2001 all the 18 claimants to whom compensation had been
offered, and who were shocked by the inconsistency of this order with
the original mandate of the NHRC, demanded that the latter should
either restore the original intent of justice and of a thorough investigation
or stop further proceedings. The NHRC ordered in February 2001 that
investigations should be reopened in all the 2,097 cases.
Pursuant to this order, the NHRC allowed the parties involved in
the case to inspect part of the CBI's records of investigation. The
inspection revealed that the documents collected by the CBI were not
only partly illegible but also contained very little meaningful information.
The NHRC thus decided to invite suggestions from the parties on "points
of substance", to guide its future work. The CIIP urged the NHRC
to examine all available evidence, including the police and families'
accounts, to determine whether the bodies were those of suspects or
detainees, whether their deaths had been unlawful, whether human rights
had been violated in connection with their deaths, and whether any
liability of the police could be established in connection with their
In February 2002 the NHRC eventually spelt out its method of work:
it would initially examine the cases of the 585 fully identified bodies
to ascertain whether police officers had been responsible for the
deaths or for any human rights violations, the liability of those
officers and of the government authorities, and whether compensation
should be given. It also made clear that the burden of proof would
be put on the concerned governments. By November, however, the State
of Punjab had allegedly filed affidavits in only 23 out of the 583
cases under examination, producing only cursory responses to the questions
raised by the NHRC. A hearing fixed for November 2002 was again indefinitely
In AIs view, the Supreme Courts directive to the NHRC in December
1996 to examine these cases marked an opportunity for an impartial
investigation into a long-standing pattern of abuses and an invaluable
occasion to halt the trend towards impunity in Punjab. It opened up
the prospect of establishing mechanisms to deal with large numbers
of complaints, to ensure reparation to victims and to make recommendations
to prevent future human rights violations. The willingness of the
NHRC to assume a significant role in the investigation of disappearances
and illegal cremations in Punjab would have set an historic precedent
for investigations in areas where an internal conflict is taking presently
place, such as Kashmir and the northeast, giving a clear signal that
it is not possible to commit human rights violations and get away
with it in the long term.
However, AI is concerned that on several occasions during the last
six years the NHRC has shown reluctance to seize this opportunity:
it imposed on itself narrow limits with regard to the area of investigation
when it could have included a much wider range of abuses in its purview(16),
it kept a low profile and it showed no will to speed up the process.
Six years after the Supreme Court authorized the NHRCs investigation,
no significant steps have been taken to identify the cremated bodies
or seek more information from relatives. Justice delayed, these relatives
now say, is justice denied.
In addition, the NHRCs mandate and powers in this case are limited
by the Supreme Court order of December 1996 itself. The NHRC is in
fact examining the responsibilities for deaths and cremations with
the sole purpose of awarding compensation and relief to the families
of victims. Any recommendations it may make, for example for the prosecution
of police officers, are not binding on the police, state or national
authorities. The CBI remains - according to that order - the agency
in charge of the criminal prosecution of the police officers. There
is no guarantee, in terms of the Supreme Court's order, that the CBI
will follow up on the NHRC's work with regard to prosecutions.
The failure to bring to justice those responsible for abuses or to
provide redress for the victims prolongs the ordeal of the relatives,
who may continue to face harassment and further human rights violations,
and are losing confidence in the possibility of obtaining justice
at all. It also sends a message that the prosecution of those responsible
for human rights violations in areas where security forces face violent
political opposition is not a priority for the authorities, including
the NHRC, thus potentially creating expectations of impunity in other
parts of the country where there are internal conflicts.
b. A Mechanism To Investigate Large Numbers Of Human Rights Violations
Parallel to the developments in the cremation grounds issue before
the NHRC, other initiatives to oppose the trend towards impunity in
Punjab were organized by the human rights movement in the state, but
were met with inaction on the part of the relevant authorities.
The Committee for Coordination on Disappearances in Punjab (CCDP)
was formed in November 1997 as an umbrella body for several human
rights organizations and individuals seeking a judicial commission
of inquiry into the decade-long violence in the state. Their aims
to collate information on disappearances, police abductions
and illegal cremations, and to press for justice and redress for the
relatives of the victims;
to evolve a workable system of state accountability, and
to build up the pressure of public opinion to counter the bid for
to lobby for national laws to be brought into conformity
with India's commitments to UN human rights standards, particularly
on torture, disappearances, accountability and compensation for victims
of human rights abuses; and
to initiate a national debate on the powers and accountability
of state and national government bodies.
In pursuance of this agenda, in December 1997 the CCDP called on
the new Punjab government to set up a Truth Commission to investigate
all complaints of human rights violations, as promised in its election
manifesto. In April 1998, following the refusal by the Government
of Punjab to set one up, the CCDP announced its intention to constitute
a three-person Peoples Commission on Human Rights Violations in Punjab,
headed by a former Chief Justice of the Calcutta High Court. In August
1998, before formally announcing the first public hearing of the Commission,
a delegation of human rights bodies handed over to the Chief Minister
a list of 2,851 persons missing from police records or possibly killed
in police encounters and demanded a judicial commission to investigate
these cases. They received no substantive response from the government.
The first hearing of the Peoples Commission was therefore held from
8 to 10 August 1998.
Further sittings were however cancelled, because in December 1999
the Punjab and Haryana High Court, reacting to a Public Interest Litigation
filed by a lawyer from Chandigarh, set limits on the work of the People's
Commission on the basis that it was establishing a parallel judicial
system. The objection presented by the People's Commission that it
did not intend to take up cases pending in regular courts and that
the persons summoned by it were under no obligation to attend the
hearings was not accepted. The High Court judgment was upheld by the
Supreme Court in May 2000 and the People's Commission was therefore
During the course of the proceedings in the High Court concerning
the activities of the People's Commission, other opportunities were
offered to the State of Punjab and India to set up mechanisms to investigate
large numbers of "disappearances" and suspected extrajudicial
executions, as well as other human rights violations perpetrated during
the militancy period. Again, these opportunities were not taken up:
In 1998 the Government of Punjab, in its response to the High Court,
suggested that human rights abuses which had taken place during the
militancy period could be investigated if the central government amended
section 36(2) of the Protection of Human Rights Act (PHRA), so that
the Punjab Human Rights Commission (PHRC) could pursue cases of human
rights violations more than a year old. As the majority of "disappearances"
took place several years before the PHRC was set up (in 1997), section
36(2) of the PHRA, which bars the NHRC and state human rights commissions
from investigating alleged abuses which occurred over one year prior
to the complaint being made to them, places the majority of these
cases outside the scope of its scrutiny. The Government of Punjab's
request was refused in February 1999 by the Government of India, on
the grounds that extending the limitation period from one to 10 years
would open the floodgates of litigation which would be beyond the
capacity of both the NHRC and the Punjab Human Rights Commission.
The High Court subsequently asked the Government of Punjab whether
it was prepared to set up an independent commission under the Commission
of Inquiry Act 1952 into past human rights violations, as an alternative
to the activities of the People's Commission. In August 1999 the Government
of Punjab indicated that it would not consider this option.
AI is concerned at the repeated and formal refusals by both the Government
of India and the Government of Punjab to set up mechanisms to investigate
the abuses which took place during the decade-long militancy period
in the state. The organization is particularly worried to learn that
the reason for the refusal presented by the Government of India is
that it would open the floodgates of litigation. Opening the floodgates
of truth, justice and redress not only of litigation is precisely
what the state and its agencies should be doing after more than a
decade of silence on the matter, even if this would require the provision
of additional resources to the agency requested to carry out the task.
AI believes also that the prevention of the work of the Peoples Commission
is yet another opportunity missed by the Government of India, the
Government of Punjab and the criminal justice system as a whole to
elaborate mechanisms of coordination with the human rights movement
in Punjab in order to shed light on the causes and responsibilities
involved in the violence which occurred in the state.
c. An Amnesty For Police Officers?
As a result of complaints filed by the families of their victims
or by human rights groups, in mid 2001 about 500 police officers in
Punjab were facing trial for criminal offences allegedly committed
in their official capacity during the militancy period. These offences
included possible extrajudicial executions, disappearances, torture
including rape, abductions and unlawful detention. By December 2002
between 75 and 100 police officers had been convicted. AI is concerned
at repeated calls for an amnesty for police officers accused of human
rights violations in the state.
In 1997 the apparent suicide of a Senior Superintendent of Police
who faced several criminal charges for alleged abuses during counter-insurgency
operations was followed by requests from police organizations for
In July 2001 police officials in Jalandhar announced that they would
return presidential awards for gallantry during the militancy period
in protest at the criminal charges brought against police officers
for crimes allegedly committed during operations against armed opposition
groups. The Union Home Minister announced in August 2001 that the
government was contemplating steps to provide legal protection and
relief to the personnel of the security forces facing prosecution
for alleged excesses during anti-insurgency operations in Punjab,
Jammu and Kashmir and the North East, and that this would possibly
be some form of general amnesty.
The Home Ministers announcement was welcomed by the Communist Party
of India and by the Congress Party, which promised to withdraw all
the cases against the innocent cops [police officers] if voted to
power. The Union Law Ministry and the Chief Minister of Punjab were
more ambivalent.(17) The amnesty proposal has not been formally confirmed
or withdrawn since.
AI believes that an amnesty for police officers facing charges for
human rights abuses has no basis in law and should therefore be clearly
and urgently rejected by the competent authorities. The Code of Criminal
Procedure requires the consent of the central or state government
for the arrest and prosecution of members of the armed forces and
public servants for actions taken in their official capacity(18).
However, the Supreme Court has confirmed that government sanction
is not required for prosecution of malicious actions that do not fall
within the ambit of official duties.(19) Most of the charges brought
against the 500 police officers pertain to serious human rights abuses.
These acts cannot be considered as falling within the duties of law
enforcement personnel under any circumstances.
The powers of pardon are clearly defined under Indian law. The Code
of Criminal Procedure allows the granting of pardon to accomplices
of crimes on the condition that they make a full and true disclosure
of the whole of the circumstances - relative to the offence and to
every other person concerned, whether as principal or abettor, in
the commission thereof. (20) It also allows the government to suspend
or remit sentences for an offence, but only after the sentence has
been awarded and this also subject to judicial opinion(21). Similarly,
the Constitution allows the President of India and State Governors
the power to suspend, remit or commute sentences in certain cases.
But the mercy jurisdiction of the President and the Governors becomes
operative only after the courts have delivered conviction(22).
More fundamentally, the right to life and liberty guaranteed by the
Constitution must always be protected and redress to its violation
provided, even in a state of declared Emergency, which Punjab however
never officially proclaimed. No legislation introduced in parliament
can retrospectively cancel the legal consequences of violations of
fundamental human rights guaranteed in the Constitution of India.
AI is also concerned that, on several occasions in the course of
the debate on a possible amnesty for police officers in Punjab, elected
representatives have suggested that the NHRC could act as an appropriate
substitute for proceedings in the criminal justice system in cases
of police officers suspected of human rights abuses. The organization
acknowledges the vital role the NHRC has to play in upholding a culture
of accountability among law enforcement personnel. However AI does
not believe that this institution can act as an appropriate substitute
for the normal prosecution process if acting under the PHRA. The NHRC
has powers to investigate and recommend action, but it does not have
the power to initiate prosecutions. Moreover, it is not empowered
to address abuses allegedly carried out by armed forces, or violations
dating back more than one year. (23)
d. Reverse The Trend To Impunity
If human rights violations carried out by the security forces during
the militancy period are not promptly, thoroughly, independently and
impartially investigated and those responsible brought to justice,
the system which allowed them to commit those crimes will remain intact.
The officers concerned will remain free to repeat the violations,
while expectations of impunity are fostered. AI believes that torture
and ill-treatment in police custody continues today in Punjab largely
because police officers were not promptly investigated and prosecuted
for human rights violations committed during the militancy period
and therefore they do not expect now to be questioned about their
recourse to custodial violence.
The Constitution of India clearly sets out the right of victims and
their families to have access to remedies for the enforcement of fundamental
rights when they appear to have been violated (Article 32). The Constitution
is equally clear about the fact that the State shall not deny to any
person equality before the law or equal protection of the laws within
the territory of India (Article 14). This suggests that all victims
of abuses have the right to seek justice, irrespective of who carried
out the abuses, where and when.
The right to legal remedy is reflected in several major international
human rights standards. The International Covenant on Civil and Political
Rights, to which India is a party, requires states to ensure that
any person whose rights or freedoms are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity (Article 2.3). The UN Declaration on
the Protection of all Persons from Enforced Disappearance states that
All acts of enforced disappearance shall be offences under criminal
law punishable by appropriate penalties which shall take into account
their extreme seriousness (Article 4). The UN Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions provide further guidelines on bringing those suspected
of being responsible for human rights violations to justice. They
require that Governments shall prohibit by law all extra-legal, arbitrary
and summary executions and shall ensure that any such executions are
recognized as offences under their criminal laws, and are punishable
by appropriate penalties which take into account the seriousness of
such offences (Article 1). The Principles also state that Governments
shall ensure that persons identified by the investigation as having
participated in extra-legal, arbitrary or summary executions in any
territory under their jurisdiction are brought to justice. Governments
shall either bring such persons to justice or cooperate to extradite
any such persons to other countries wishing to exercise jurisdiction.
This principle shall apply irrespective of who and where the perpetrators
or the victims are, their nationalities or where the offence was committed
The Committee for Coordination on Disappearances in Punjab (CCDP)
shares these views and has significantly observed that The right to
know belongs not only to individual victims and their families, as
the right to truth about what happened, but also to the social collective,
to draw on history to prevent recurrence of evil and to preserve the
knowledge of oppression as part of its heritage. It is only from such
knowledge that it would ever be possible to dismantle the machinery
that allowed criminal behavior to become routine administrative practice.(24)
AI considers that the development of mechanisms to investigate and
prosecute large numbers of human rights violations is a matter of
urgency, if the trend to impunity in Punjab is to be reversed. As
a contribution towards this end, the organization submits a series
of recommendations to the Government of India, the Government of Punjab,
the NHRC and the Supreme Court, which are enclosed at the end of this
III. Torture Continues After The End Of The Militancy Period
Reports of torture by Punjab Police continue, although they are less
frequent than during the period of violent political opposition. The
methods are similar. They often include kicks and blows with sticks
and leather belts. Detainees have been strung up, usually with their
hands behind their back or their head down. They have been subjected
to the roller, a wooden pole or iron rod rolled over their legs by
several police officers leaning on it with their full weight, which
leads to a crushing of muscle tissue and subsequent kidney complaints.
Detainees have been tortured with electric shocks to the genitals
and other sensitive areas such as ear lobes and fingers. They have
been beaten on the soles of their feet (falanga), burned with a hot
iron or boiling water, and had chilli peppers applied to their anus
or eyes. Police officers have threatened to kill them. As a result
of torture, victims have suffered serious physical disabilities, deep
states of depression, disturbed sleep and nightmares.(25)
The continuation of torture in Punjab may largely be considered as
a legacy left by policing practices due to the informal restructuring
of the functioning of Punjab Police during the militancy period: the
unchecked use of torture to extract information from suspects led
to a police force who lost their ability to conduct investigations;
the provisions included in security legislation granting protection
from prosecution for police officers, which contributed to weakening
the sense of accountability of the police, opened the way to a continuing
misuse of police powers; expectations of high extra-salary profits
linked to the policing activity raised by the system of rewards persisted
beyond the militancy period and made a section of police officers
vulnerable to corruption. The de facto impunity of a large number
of police officers suspected of having committed human rights abuses
during the militancy period sent the message to some members of the
police force that policing methods used during those days would be
tolerated even after the end of violent political opposition.
However, the pattern of abuses has changed rapidly after the end
of the militancy period. Torture is no longer used as part of a counter-insurgency
strategy. The legal framework governing the limits of policing activity
has also changed, as the security laws that facilitated torture during
the militancy period are no longer in force or in use: the Terrorist
and Disruptive Activities (Prevention) Act (TADA) lapsed in 1995,
the Armed Forces Special Powers Act has no more relevance after the
withdrawal of the army, the Disturbed Areas (Special Courts) Act has
been withdrawn. The National Security Act is still in force in the
state as in the rest of India, but since the early 1990s there have
been no reports of its misuse or even use in Punjab.
Torture today takes place in two main contexts: in the course of
regular criminal investigations and following unlawful and arbitrary
During criminal investigation police frequently resort to torture
to extract information from suspects while they are in their custody.
Particular pieces of legislation, including the Narcotic Drugs and
Psycotropic Substances Act (NDPSA) and the Arms Act, are reported
to be frequently misused by police to detain suspects for lengthy
periods, during which torture frequently takes place. The NDPSA in
particular is reported to be called by many human rights activists
in Punjab the TADA of peace time. This Act, intended to curb the possession
and trade of narcotics, provides for wide powers of arrest of suspects
and it is reported to be frequently misused by the police for filing
false cases against persons whom they want to get in their custody.(26)
Torture occurs even more frequently during unlawful and arbitrary
arrests. As such detentions are not acknowledged by police, there
is no judicial scrutiny of these cases. The detainee may be held for
several days in incommunicado detention without charge or trial, or
be charged only several days after arrest and after the 24 hours that
a detainee may be legally held by police before their continued detention
must be authorized by the judicial authorities.
This was the case for Kashmir Singh, a 35-year-old bus driver who
was allegedly tortured by police at the police station in Gadian.
Arrested and questioned by the Station House Officer (SHO) about a
theft on 12 December 1995, he was detained illegally and incommunicado
until 24 December, when he was formally implicated in a false case
under the Arms Act and subsequently produced before a Magistrates
Court in Gurdaspur. When brought to court for the second time on 30
December he showed signs of assault and was not able to stand or walk
without help. The police produced a medical report, prepared by doctors
of the Civil Hospital in Gurdaspur and dated 27 December, which stated
that he showed no signs of injury. The court, however, ordered his
release on bail and further medical examination. He was found to have
fractures to both hip joints, required two surgical operations, a
long hospitalization and was left permanently disabled. On 5 January
1996 the police reportedly used his thumb prints to falsify a statement
in which he apparently confirmed that his injuries resulted from a
fall while he was in the Civil Hospital, soon after he was first examined.
On 29 January 1996 his father sought an order from the Punjab and
Haryana High Court for his release because Kashmir Singh was still
held in police custody in the hospital where he was receiving treatment,
although the court had ordered his release on bail.(27) He also petitioned
the court for an independent inquiry into the assault on his son and
On 17 January 1997 the High Court ordered a raid in the hospital
in which Kashmir Singh was detained and entrusted investigations to
the Sessions Judge in Gurdaspur. In a report submitted on 23 November
1998, the judge exonerated the Station House Officer at the Gadian
police station of illegal detention and torture but implicated an
officer of lower rank. His report also found that doctors in the Civil
Hospital in Gurdaspur had signed a false medical report about Kashmir
Singh. On 14 July 1999 the High Court awarded Kashmir Singh compensation
of 150,000 Rs. (about US$ 3,120) and recommended disciplinary measures
against the doctors who prepared the false medical report, but did
not propose any action against the police. In response to a legal
challenge to the High Court order by Kashmir Singhs father, the Supreme
Court of India said on 18 February 2000 that the prosecution of police
officers in the case could only be initiated by the family filing
a fresh complaint with the police. The Court also advised that they
bring a civil claim for damages if they wished to receive higher compensation.
The family is presently considering filing a complaint with the police.
a. Why Does Torture Take Place?
i. A Substitute For Police Investigations
Torture is often used in Punjab to "solve" criminal cases
quickly, without time-consuming investigations. It is widely reported
that many police officers torture suspects or potential informants
- or even persons totally unconnected with the case under investigation
- in order to obtain a confession or the information needed to solve
a case. Confessions extracted in this way are given by the victim
sometimes just to stop torture, and there is no guarantee that they
correspond to the facts.
The use of torture as a means of extorting confessions spread during
the militancy period, as at that time the Terrorist and Disruptive
Activities Act (TADA) allowed for confessions obtained in police custody
to be presented as evidence in courts, and the recourse to custodial
violence to obtain such confessions became therefore routine. The
use of forced confessions is today governed and prohibited by the
Indian Evidence Act. Observers and human rights activists suggest
however that torture continues to be used today in the state because
professional investigative skills have been sapped and no other method
of conducting an investigation is familiar to most of the police force
The lack of investigative capabilities of police officers in Punjab
is also a result of inadequate resources: at present a very minor
part of the budget of Punjab Police is invested in training, research,
development and in modernization of investigative techniques.(28)
Often police officers are not equipped, during their investigations,
with material pertaining to fingerprinting, still photography or videography.
ii. "Teaching A Lesson"
Police officers in Punjab are frequently reported to use torture
to pursue personal interests unconnected to the maintenance of law
and order, to teach a lesson to personal enemies, to favour business
friends or to assert their power.
In a case that illustrates the use of torture to settle personal
disputes, Jagdish Rai Jain, a 52-year-old businessman in the town
of Bathinda, died in police custody, reportedly after being assaulted
by police officers. He had been repeatedly summoned to the Canal Colony
police post in Bathinda and threatened by a police officer acting
on behalf of an acquaintance in a commercial dispute, and on 26 September
1999 he was taken to the same police post from his home by two police
officers. His son, who followed them, said that he saw Jagdish Rai
Jain being pushed around by a police Sub-Inspector and other officers
and collapsing after a particularly strong push. He died shortly afterwards,
before his son could take him for medical treatment. When his son
filed a complaint the next day at Kotwali police station, he was allegedly
made to sign a blank piece of paper. On 15 October he obtained a copy
of the complaint form, but found that it said that Jagdish Rai Jain
had complained of chest pain when his son arrived at the police post
and was taken to a private hospital where he collapsed and died. The
accusation he had made against the police was surprisingly recorded
in the complaint as abetting the commission of suicide and unlawful
assembly, a charge with no clear link with the facts.(29) He wrote
complaint letters to the local Senior Superintendent of Police, the
Inspector General of Police in Patiala, the Station House Officer
of the Kotwali police station and the chairman of the Punjab Human
Rights Commission to seek help in correcting the recorded charge,
but did not receive any response. An application made in October 1999
to the Punjab Human Rights Commission for action against the police
officers involved and for compensation, supported by the affidavits
of two witnesses to the incident, was rejected for reasons not known
to AI.(30). At the time of writing, no information about developments
in this case had reached AI. In November 2002 AI sought the cooperation
of the Punjab Human Rights Commission in updating the information
in this case but the response received from the PHRC did not mention
Jagdish Rai Jain's case.
The police often use torture or the threat of torture to extort money.
News media and social commentators widely report that recruitments,
transfers and promotions within the police force in Punjab take place
on payment of large sums of money by the candidates at all levels.
The post of Senior Superintendent of Police of a district, for example,
is reportedly sold for millions of rupees, the exact price varying
from district to district and decreasing for lower positions. In these
circumstances, police officers see the payment of a large bribe for
their recruitment or promotion as an investment which they will try
to recover by demanding bribes in their turn in return for police
services once they get the desired posting. In criminal cases, officers
may be bribed to take action or not to take action by one or other
of the parties, or may extort money from detainees not to torture
them or to release them.
Expectations of "extra wage" profits within the police
force are also a legacy of the system of rewards for eliminating members
of armed opposition groups during the militancy period. The system
of rewards is no longer in operation in the state but these expectations
continue, and it is commonly accepted in Punjab that every police
activity, including torture, has a price.
Police reportedly demanded 50,000 Rs (about US$ 1,030) to stop torturing
Jagmohan Singh in August 1999. In response to an unofficial order
by the police, he reported to the Sector 19 police station in Chandigarh
on 27 August, where he was stripped and beaten by at least three officers
- including the Station House Officer and two Sub-Inspectors - with
heavy iron rods and leather belts. They demanded money to release
him, and when he refused, he was punched, kicked and tortured with
electric shocks to his ears and genitals. He was implicated in a case
of theft and on 28 August was produced before a magistrates court
and remanded in police custody. The court also ordered a medical examination.
A police Sub-Inspector allegedly threatened to kill him and torture
his family if he told the doctor the cause of his injuries. The medical
examination at EMO Hospital in Chandigarh was reportedly cursory and
the doctor recorded no signs of injury, although Jagmohan Singh later
said that he was bleeding from his ears and had other injuries. On
29 August he was tortured again and made to telephone his family to
ask for money for his release. When he appeared before the magistrates
court again on 30 August, the court acceded to his lawyers application
for a further medical report. A medical examination later the same
day revealed serious injuries. Subsequently, Jagmohan Singh filed
a complaint with the NHRC, and an NHRC investigator took statements
from Jagmohan Singh, the police and witnesses in October 2001. At
the time of writing, the findings of the inquiry were not known.
b. Targets Of Torture
The targets of torture have also changed since the period of militancy,
when the most frequent victims of police abuses were members of the
Sikh community, in particular youths and supporters of Sikh political
parties and armed opposition groups, together with their families.
At that time, anyone deported to India after having sought or received
political asylum abroad also invariably came under the scrutiny of
the police and became a possible target of torture. Now, the majority
of victims are detainees held in connection with criminal investigations,
and include members of all religious communities and social groups.
i. The Poor
Increasingly the poor and the uneducated - the most vulnerable sections
of society - have become targets for police abuse. They do not have
influential acquaintances who can put pressure on the police or money
for bribes to secure their release.
Gurbax Singh and Sher Singh, very poor residents respectively of
Kurukshetra district and of Panipat in the state of Haryana, were
reportedly tortured following their arrest in August 1999 as suspects
in a criminal case. Two lawyers practicing in the district court in
Chandigarh noted their poor health conditions and subsequently helped
Gurbax Singh to file an affidavit testifying to torture with the Magistrates
Court in Chandigarh. He and Sher Singh alleged that they had been
tortured by officers and staff at several police stations in Haryana
and Punjab - including in Patiala and at the Police Interrogation
Centre in Mal Mandi, Amritsar district, both in Punjab - and in Chandigarh,
after having been arbitrarily transferred from one state to the other
without any court order. They also alleged that they had been denied
appropriate medical treatment for injuries resulting from torture.
On 25 August 1999 Gurbax Singh lodged a complaint with the NHRC against
the Station House Officers at police stations in Panipat, Haryana,
and Sector 34, Chandigarh, and against the Incharge of the Police
Interrogation Centre in Amritsar. He asked for an inquiry into his
case, for disciplinary action against the police officials involved
and for compensation. To date, he has reportedly received no information
about the progress of his complaint from the NHRC.
Members of dalit communities (formerly known as "untouchables")
are also particularly easy targets of custodial violence, as in many
cases they are in a situation of double vulnerability resulting from
their poverty and perceived low social status.
Gaje Singh, a 39-year-old tailor and member of the dalit community
in Nayagaon, Ropar District, was allegedly assaulted by police on
17 October 2001. Several officers of the 37 Battalion of the national
Central Reserve Police Force (CRPF) attacked the village in reprisal
after an officer was allegedly beaten up by Gaje Singh and his neighbours
in a personal dispute over the money charged for some work. After
meeting resistance, CRPF officers in uniform and armed with service
weapons returned to the village at about 8pm, ransacked several shops
and beat Gaje Singh with iron rods, rifle butts and sticks. A handicapped
shopkeeper, Darshan Singh, and his 78-year-old mother, Satpal Kaur,
were also beaten with iron rods. Gaje Singh suffered serious injuries
to his head, chest and feet. Darshan Singhs right arm was broken and
his mother suffered injuries to her back. Three officers of the regular
police who were in the vicinity did not intervene during the attack,
nor did any police officer help the injured.
Gaje Singh filed a complaint at Nayagaon police station and the Punjab
police registered a criminal case for minor offences against four
CRPF officers. However, no arrests were made. To initiate criminal
prosecution against officers of a central security force, permission
from the Union government needs to be given(31), but Punjab Police
did not take any steps to seek such permission. A senior CRPF officer
assured a lawyers organization monitoring the case that disciplinary
action would be taken against the officers and that they would be
asked to pay the victims medical expenses. He also suspended three
of the officers involved in the attack and acknowledged that it was
a blatant case of "police highhandedness". Police officers
subsequently tried to convince the victims to settle the matter out
of court by offering them some money, but the offer was reportedly
not accepted. No formal charges were brought against the officers
concerned and the fate of the disciplinary action initiated by the
CRPF is not known. The victims are finding it difficult to obtain
the money needed to take their complaint further to the Punjab Human
Rights Commission and are under pressure from other villagers to drop
There has been an overall increase in crimes against women recorded
in Punjab in the post militancy period, particularly in the context
of matrimonial disputes. In response, the police in Punjab have created
"women cells" at district level to deal specifically with
offences against women. However, these units reportedly lack staffing
and other resources such as means of transport.
Women are particularly vulnerable to police abuse. Rape and other
forms of sexual harassment are reported to be frequent forms of torture
in police custody. Their humiliation is often greater as they are
often tortured solely as a means of putting pressure on their husbands
One case illustrates the obstacles a woman can meet while pursuing
justice when the alleged offender is a police officer. Renu Bala,
a resident of Bathinda, was arrested with her husband in the night
of 10 June 1996 while searching for their son who had not returned
after work. A group of police officers, headed by an Assistant Sub-Inspector
from the Cantonment police station in Bhatinda, reportedly stopped
and questioned them in the street and took them to a nearby hotel.
The Assistant Sub-Inspector allegedly bit Renu Balas face and tore
off her clothes while attempting to rape her in one of the hotel rooms.
Other officers forced her husband to drink alcohol and restrained
him. The couple was later allowed to escape, after the rape attempt
failed. The local police refused to register their complaint about
their ill-treatment, but inquiries initiated by the Senior Superintendent
of Police and the Executive Magistrate in Bathinda, following public
outcry, supported their allegations against the Assistant Sub-Inspector.
At that point Renu Bala and her husband began receiving threats from
unidentified police officers who said that Renu Bala's husband would
be implicated in false cases if they did not stop pursuing the case.
The Executive Magistrate noted in his report that, while he was recording
witnesses statements, the accused Assistant Sub-Inspector had sent
a police employee to his office to threaten Renu Bala's husband. However,
although the police subsequently registered her complaint, they took
no action to investigate it or to protect her or her husband against
further threats by police officers. After about two years the police
filed an application to cancel the complaint, and on 12 November 1998
the Chief Judicial Magistrate recorded that Renu Bala did not wish
to proceed with her complaint, noted that a compromise had been reached
between the parties and accepted the cancellation report. A complaint
that Renu Bala had lodged with the NHRC in June 1996 received an initial
response only in July 2001, but at that time Renu Bala decided not
to pursue her complaint further.
iv. Human Rights Activists
During the militancy period many lawyers and human rights activists
attempted to alert the international community to the human rights
abuses taking place in Punjab and to pursue human rights cases in
the courts. As a result, they were themselves targeted by the police
and a number of lawyers and journalists disappeared. Since 1995 there
have been no reports of killings of human rights defenders. However,
human rights defenders continue to be under constant surveillance
and have been subjected to harassment, threats and violent attacks
by the police in attempts to intimidate and silence them. False criminal
charges have been brought against some as a form of harassment. AI
believes that the authorities share responsibility for encouraging
this attitude. Officials have made unsubstantiated and public accusations
that human rights organizations are anti-national or support terrorist
organizations. Such accusations have been made on several occasions
in recent times by, among others, the Director General of Police,
Punjab, and by the Union Law Minister in late 2001.
Several lawyers involved in cases against the police have been harassed.(32)
Arunjeev Singh Walia, a lawyer in the Punjab and Haryana High Court
and an active member of the organization Lawyers for Human Rights
International, was threatened and illegally detained for several hours
on 4 October 1998 at SAS Nagar Central police station, Mohali, in
Ropar district, while visiting a client. The abuse he suffered was
possibly meant to intimidate him in relation to his activity as a
defense lawyer and human rights activist. A petition requesting that
the police officers concerned be found in contempt of court for preventing
his access to a client is still awaiting a hearing in the High Court.
Veneeta Gupta is a doctor and General Secretary of Insaaf International,
a non-governmental organization. On 20 February 2001 about 20 police
officers in plain clothes and headed by the Deputy Superintendent
of Police (Vigilance) of Bathinda raided her private clinic, apparently
because of her opposition to the closure of a hospital in the same
town. They refused to identify themselves or show her a search warrant.
Dr Gupta requested the Senior Superintendent of Police in Bathinda
to register a case of unlawful and forcible entry, intimidation, threat
and defamation against the intruders, but no action was taken by the
police. On 22 February she was illegally detained and questioned for
two hours by the Deputy Commissioner of Police, Bathinda, who used
gender discriminatory language, attempted to register a false case
against her and accused her of instigating various social and human
rights groups to oppose the closure of a hospital. A complaint filed
before the Punjab Human Rights Commission in December 2001 about the
harassment Dr Gupta was victim of is still pending and is scheduled
for hearing in January 2003.
Ram Narayan Kumar, convenor of the Committee for Coordination on
Disappearances in Punjab (CCDP), has for several years regularly received
anonymous and threatening telephone calls and e-mails, and believes
that he is under close police surveillance. On 4 December 2001 he
was questioned by the Chief Enforcement Officer of Delhi, whose remit
covers financial irregularities and foreign exchange issues, about
his past political activities, his involvement in the CCDPs investigations
into illegal cremations and his foreign contacts. In October 2002
his laptop computer, containing vital data on the cremation grounds
issue, was tampered with by unidentified persons in a hotel room in
c. Failure To Implement Safeguards For Detention
Legal safeguards for detainees exist in Indian law which, if routinely
implemented, would go a long way to prevent the use of torture.(33)
Article 22 of the Constitution states that no person who is arrested
shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest, nor shall be denied the right
to consult, and to be defended by, a legal practitioner of his choice.
Several provisions of the Code of Criminal Procedure provide for judicial
scrutiny of detentions, including:
Section 50, which requires the arrested person to be informed
of the grounds of arrest and of the right to bail;
Section 56, which requires the arrested person to be taken
before a magistrate or officer in charge of the police station;
Section 57, which requires the police not to detain an arrested
person more than 24 hours in absence of judicial scrutiny;
Section 58, which requires the police to report all cases
of arrest without warrant to the local District Magistrate;
Section 167, which requires the police to seek the authorization
of a judicial magistrate when it considers that a detainee should
remain in police custody more than 24 hours to allow the completion
The Evidence Act prohibits the use of confessions obtained in police
custody as evidence in court. In 1996 the Supreme Court issued 11
directives to be followed in all cases of arrest or detention, as
preventive measures against torture in custody in addition to the
safeguards in the Code of Criminal Procedure.(34) They are known as
the D.K. Basu guidelines and, in addition to the provisions of the
Code of Criminal Procedure, require the police inter alia to:
bear identification tags while carrying out an arrest;
make a detailed memo of every arrest;
allow the detainee to inform his or her family or a friend
of the arrest and place of detention;
ensure that the detainee has a medical examination at the
time of arrest and subsequently every 48 hours; and
allow the detainee to meet a lawyer during interrogation.
The International Covenant on Civil and Political Rights, to which
India is a party, further affirms that No one shall be subjected to
arbitrary arrest or detention Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within
a reasonable time or to release (Article 9).
Only by implementing existing safeguards will the police successfully
convert the arbitrary policing methods employed during the militancy
period to those appropriate in peacetime. AI understands that the
Director General of Police (DGP) in Punjab has instructed the police
force that the D.K. Basu guidelines be observed - in accordance with
the Supreme Court's request to all DGPs. However, they have not yet
been incorporated in the Punjab Police Rules, 1935, under which Punjab
Police act, or in any other police manual. The cases below, as many
others in this report, demonstrate that they continue to be routinely
ignored in most police stations.
The story of Bhag Chand, a police officer in Chandigarh, illustrates
the failure to observe the safeguards. On 1 October 1999 he was arrested
while off duty, ostensibly because of a minor traffic offence a number
plate on his scooter was not visible. His arrest was not registered
at the Sector 36 police station where he was taken and his relatives
were not informed that he had been arrested. An Inspector and a Sub-Inspector
asked him to confess his involvement in a robbery. When he denied
the accusation and told them that he was a police officer, they reportedly
stripped him, beat him with sticks, and kicked and punched him on
his back and genitals. They allegedly subjected him to the roller
torture, leaning with two other officers on an iron rod rolled across
his legs, and to have continued to torture him for more than two hours.
The next day a team of interrogators questioned him and on 3 October
he was released uncharged, after having been warned not to tell anyone
about the torture he had been subjected to. During his detention,
he was reportedly given no food and was not medically examined.
He subsequently complained to the Inspector General of Police and
a judicial magistrate ordered an investigation and a medical examination.
The investigation was carried out by the police and, although the
medical examination revealed marks of torture, no action was taken
against the officers responsible. Pressure was exerted on Bhag Chand
to withdraw his complaint. He also filed a complaint before the NHRC,
but his case was not investigated allegedly because an internal police
inquiry was pending.
The failure to implement the legal safeguards for detainees, however,
cannot be attributed solely to the lack of will of individual police
officers to do so, but is in part linked to the difficult working
conditions in which most police officers operate in Punjab. They receive
little training in investigation techniques. They are under public
pressure to inflict "instant punishment" on some categories
of suspects. Officers often operate in a poor working environment,
lacking proper accommodation, lighting, ventilation and furniture
during in their offices. Working hours are not clearly fixed and 24-hour
duty for police officers is widely expected.
Safeguards for detention are routinely disregarded also because the
police hierarchy in Punjab fails to hold those who violate them to
account. In many of the cases in this report, the police authorities
or the Punjab Human Rights Commission (PHRC) have initiated or ordered
internal inquiries or taken disciplinary action against police officers
involved in unlawful practices. It often appears, however, that these
disciplinary actions - which would be expected to lead to the suspension
and possible transfer of the police officers concerned - rarely involve
any consequences for them, as senior officers seem to lack the will
to take forward and implement such internal enquiries. Officers due
for suspension have often in practice remained on active duty at the
same police station in which the offence was committed. Disciplinary
actions are internal to the police force and it is often difficult
for the judiciary, but also for civil society, to monitor their implementation.
The routine violation of safeguards for arrest and detention and
the consequent continuation of custodial violence is rooted in the
recent history of law enforcement in Punjab, but is also a reality
shared by large numbers of other states in India. This points to the
urgent need for a comprehensive review and reform of policing activities
not only in Punjab, but in the country as a whole. Since the 1980s
various commissions (the National Police Commission, the Law Commission,
the Ribeiro Committee, the Padmanabhaiah Committee) have submitted
to the Government of India proposals for police reforms but none of
these recommendations appears to have been taken seriously by either
the central or state governments(35). The high level of torture in
police custody in Punjab, therefore, stands here as a further reminder
of the urgency of such reform.
It points in particular to the desperate need for an effective and
independent mechanism to monitor policing practices and to ensure
that safeguards are observed at all levels of the police force. District
Magistrates at present have powers to monitor the functioning of police
at district level, but have been largely ineffective in this area
of their responsibilities.
d. The Enforcement Of The Prevention Of Terrorism Act In Punjab
The widespread use of torture in Punjab described above sounds a
note of warning in relation to the implementation of the Prevention
of Terrorism Act (POTA) in Punjab, enacted at the national level in
March 2002. The Act gives broad powers of arrest and detention to
the police throughout India; people deemed to be a threat to the unity
or security of the country may be detained without charge or trial
for up to six months and confessions obtained in police custody are
made admissible as evidence in court; immunity from prosecution for
police officers acting ''in good faith" is also provided under
The present government in Punjab - as all Congress-led state governments
in the country - opposes in principle the implementation of the Act
in the state and no case has been registered under POTA until date.
AI welcomes this position. The organization believes that the implementation
of POTA, which is in itself a piece of legislation open to abuse,
would be disastrous in a state like Punjab, where low level of police
accountability, its vulnerability to political pressures and the frequent
recourse to torture prevail. AI urges any future government in the
state not to implement POTA, if human rights are to be protected in
III. The Role Of The Judiciary
During the militancy period the functioning of the courts in Punjab
came to a standstill: a large number of judges at all levels were
threatened by both police and armed militants. Judges frequently absented
themselves from court cases to avoid sentencing members of armed opposition
groups or remanding them in police custody. Magistrates in lower courts
routinely accepted without question police reports of deaths allegedly
resulting from armed encounters with members of armed militants and
refused medical examinations in cases in which detainees alleged they
had been tortured. This abdication of responsibility by the judiciary
led to post-mortems being carried out at police hospitals; in other
cases, the courts failed to investigate allegations that witnesses
and complainants were intimidated by the police or by armed opposition
groups or to ensure that arrests ordered by the courts were carried
out at all.
The situation has improved since the militancy period. Judges have
slowly begun to assume again their proper role, stimulated by legal
actions brought by human rights lawyers active in both district-level
courts and High Courts. Isolated convictions of police officers for
offences including torture of detainees during and after the militancy
period have occurred since the end of violent political opposition.
Such convictions, although very few in number(37), convey the message
that the police can be held accountable for their actions to the judiciary
and the public.
However, many concerns remain about the functioning of the judiciary
and its ability to ensure accountability for acts of torture, especially
at district level.
a. The Lower Judiciary
In lower courts at district level, there remains a high degree of
tolerance by public prosecutors and by judicial officers magistrates
and Sessions Court judges of both procedural inaccuracies and unlawful
practices by the police during arrest, investigation and prosecution,
which allow torture to take place.
An overview of the constraints under which the lower judiciary operates
is crucial to understand this apparently passive attitude. Its members
are seriously overburdened by the number of pending cases. They are
reported to try as many as 100 cases on an average day, with the result
that most hearings take less than 10 minutes each. The pressure on
judicial officers for rapid decisions leads to shortcuts in observing
safeguards. The courts do not always question police failures to comply
with legal requirements on arrest and detention for example when detainees
are not produced before a magistrates court within 24 hours of arrest
or with the D.K. Basu guidelines. In theory, police officers who do
not follow the guidelines could be charged with contempt of court
under the definition of civil contempt under the 1971 Contempt of
Court Act (Section 2). As this rarely happens, the result is that
police continue to consider these guidelines as not binding.
In addition, the lower judiciary does not take a proactive role when
police officers are charged with torture or ill-treatment of a detainee:
the absence of a specific and clearly defined offence of torture in
the Indian Penal Code even allows the courts to operate double standards
and to show more leniency to police officers accused of torture than
to other citizens. Judicial officers and public prosecutors have for
example accepted charges framed by the police for lesser offences
such as voluntarily causing hurt or wrongful confinement which allow
the accused to be released on bail.(38) If the public prosecutor or
the court does not bring more serious charges, such as voluntarily
causing hurt to extort confession or compel restoration of property(39),
the accused police officer is likely to be released immediately on
bail. In some cases, courts even grant preliminary bail without serious
scrutiny of the merits of the charge: the accused police officer simply
signs a personal bond and avoids arrest altogether. Courts have also
granted bail in some cases in which police officers have been charged
with non-bailable offences. Police officers released on bail have
intimidated witnesses or improperly induced or bribed a complainant
to withdraw their complaint. Even when a complaint is not withdrawn,
the officer can file a cancellation report on the case before the
Chief Judicial Magistrate in the hope that the report may not be seriously
scrutinized or that the court may agree to delay prosecution until
an informal settlement has been reached between the police and the
victim or their family.
The case of Sham Lal illustrates how such settlements can encourage
impunity. On 4 September 1997 Sham Lal, a 28-year-old driver, was
reportedly killed after a fight broke out between police officers
and residents of the village of Ajnali in Fatehgarh Sahib district,
who were resisting the arrest of a man in the village over a dispute
with electricity workers. It appeared that Sham Lal may have been
hit by police with a rifle butt. Local politicians and demonstrators
called for the police officers to be brought to justice and compensation
paid to Sham Lals family. The family filed a complaint with the police
of culpable homicide not amounting to murder.(40) On 8 September they
also complained to the PHRC which requested the report of the state
authorities on the incident and the post-mortem report.
The states report, produced after repeated adjournments, said that
Sham Lal had died after falling in a canal (nullah) and not at the
hands of the police. The post-mortem found that his injuries were
not the cause of death. In April 1998 his relatives and other eye-witnesses
confirmed the police account, in contradiction of their original complaint.
The changed position of the witnesses had allowed also the cancellation
of the complaint filed by Sham Lal's family, under an order of the
local Subdivisional District Magistrate. However, the PHRC obtained
further medical analysis of the post-mortem report from a doctor of
Chandigarh hospital who highlighted several inaccuracies in the report
and argued that all the injuries on Sham Lals body could not have
been caused by a single fall. The PHRC concluded in October 1999 that
the victim had suffered these injuries obviously either at the hands
of the police officials or at the hands of the PSEB [Punjab State
Electricity Board] employees. However, the PHRC also concluded that
a compromise agreement had been reached privately between the police
and Sham Lals relatives, and that there was therefore insufficient
evidence for it to establish liability or to take any action on the
case. The PHRC commented:
It is unfortunate that even after the dawn of Independence about
half a century back, the basic character of the Nation has not emerged
as even the relations of the deceased have wilted under the pressure
of the police. To crown it all, it is noticed by the Commission in
all the cases of custodial deaths or torture or rape that the senior
officers of the Police Force manning the districts are prone to give
shelter to the misdeeds of their subordinates for the reasons best
known to them. The matter does not rest here as even the medical officers
posted in the districts are also amenable to the influence of the
Corruption can also ensure judicial decisions favorable to police
defendants. Lawyers and human rights activists in Punjab have reported
that the lower judiciary is sometimes susceptible to bribes and pressure
from rich or otherwise influential defendants, including police officers,
operating in the district courts through touts. Bail or a light sentence
each has its price, and judicial officers refusing to accept these
practices are reportedly a minority. AI was informed that a post in
the lower magistracy may be sold for about 2,500,000 Rs. (about US$
52,050), as a result of the huge demand for such a post. Again, as
in the case of newly appointed police officers seen above, if such
sums are paid for being appointed, then the money will need to be
recovered as soon as possible by the magistrate through the practice
of demanding bribes. As a result, justice for those who cannot afford
to pay bribes may become virtually inaccessible.
The police can exert pressure on the lower judiciary by means other
than the payment of bribes. During the militancy period, judicial
officers under threat from armed opposition groups often required
police protection and this reportedly became a way for police to constantly
keep them under pressure. Since the militancy period, judicial officers
are reported to be routinely assisted by police officers in their
professional as well as private life; this assistance is today considered
simply as a privilege attached to the status of judicial officers,
but it entails that it may be embarrassing for the latter to prosecute
In terms of career prospects, the lower judiciary may fear that convicting
police officers of torture or ill-treatment could harm their career
prospects: the judicial hierarchy above them is not likely to appreciate
such a stance for the reasons seen above and they could therefore
be excluded for example from elevation to the High Court.
b. Punjab And Haryana High Court
Police influence is reported to be weaker at the level of the Punjab
and Haryana High Court than in the lower courts, and corruption and
bribery much less common. This more positive attitude may be linked
to the higher sense of responsibility felt by the judges in this court,
as well as to the fact that High Court judges earn almost double the
salary earned by judges in district courts, approximately 40,000 Rs.
(about US$ 830) a month, which makes them less susceptible to financial
However, police influence is not absent: since the militancy period
a pattern seems to have emerged of compensating the victims of police
torture while failing to prosecute the officers responsible. As noted
above, this approach is inconsistent with Indias commitment under
the International Covenant on Civil and Political Rights to provide
effective remedies for human rights violations, including those committed
The High Court reportedly shares the lower courts tendency to ignore
police violations of the safeguards for arrest and detention. Some
judges apparently consider non-compliance with the D.K. Basu guidelines
as unfortunate but unavoidable. In 1998 the Punjab and Haryana High
Court dismissed an application for officials who were found not to
have complied with the D.K. Basu guidelines to be charged with contempt
of court, reportedly on the grounds that such a ruling would not be
A further weakness of the judicial system at High Court level is
the lack of secure tenure of public prosecutors. Unlike public prosecutors
in the district courts, who are appointed by the state government
on a permanent basis through the Punjab Public Service Commission,
public prosecutors at the High Court are recruited on a contract basis.
Each new state government can bring in its own team of public prosecutors,
which may be therefore vulnerable to political pressure, including
for a lenient line of prosecution in cases of custodial violence:
police investigations or the way charges are framed against police
officers alleged to have committed human rights violations are therefore
rarely questioned by the public prosecutor. The UN Guidelines on the
Role of Prosecutors states: States shall ensure that selection criteria
for prosecutors embody safeguards against appointments based on partiality
or prejudice.(42) The same text highlights also that "Reasonable
conditions of service of prosecutors, adequate remuneration and, where
applicable, tenure, pension and age of retirement shall be set out
by law or published rules or regulations."(43)
c. The Legal Aid Service In Punjab
Defence lawyers have a crucial role in ensuring that safeguards for
arrest and detention contained in law are strictly implemented and
that an accused person is not put in an environment where torture
is allowed to take place: the presence and active involvement of a
lawyer in a case can ensure that established periods of police remand
are strictly observed, that medical checks take place during the detention
period and reports reflect the true physical condition of the detained,
that the detained is physically produced in court and that applications
for bail are made at the appropriate time.
According to the Constitution of India and to the D.K. Basu guidelines,
every arrested person has the right to be represented by a lawyer
of their choice at every step of their detention and prosecution.
Provisions exist, in addition, which ensure that legal aid is provided
free of charge to detainees who cannot afford to pay for a defence
lawyer. AI is however concerned that the Legal Aid Service in Punjab
does not appear to ensure effective assistance to accused who cannot
afford to pay for a private defence lawyer. This situation introduces
an element of further discrimination in the criminal justice system
in the state, as it entails that poor accused enjoy potentially a
lower protection from custodial violence than those who can afford
to pay for a private legal practitioner.
Legal aid lawyers in district courts are normally appointed by a
Sessions Judge on the recommendation of the President of the District
Bar Association. Any lawyer who has completed three years of practice
can be appointed as Legal Aid lawyer. Once appointed, each counsel
is attached to a specific area. (44) AI received reports indicating
that many Legal Aid lawyers are inexperienced and not sufficiently
familiar with criminal codes and procedures when they enter the Legal
Lawyers and human rights groups in the state indicate that when an
accused is arrested, police rarely take the initiative of informing
him/her of the right to obtain free legal aid. If a Legal Aid lawyer
is eventually assigned, he/she does not always question arbitrary
police or magistrate's attitudes which may facilitate custodial violence
and in a significant number of cases do not meet or interview the
accused at all, nor does he/she appear in court when the accused is
produced there. Some magistrates do not question the absence of the
Legal Aid lawyer in court, nor do they put it on record in the case
Legal Aid lawyers are reportedly not always above corruption. Reports
indicate that some of them demand bribes from the family of the accused
to conduct a proper defence or to file a bail application.
IV. The Role Of Doctors
Doctors can play a central role in both preventing and detecting
cases of torture, as medical evidence is a crucial part of the investigation
of allegations of torture.
A doctor should record the state of health of detainees in police
custody shortly after arrest. The D.K. Basu guidelines state that
the arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any, present on
his/her body, must be recorded at that time. The inspection memo must
be signed by both the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
The guidelines also require that the detainee should be subjected
to medical examination by a trained doctor every 48 hours during his
detention in custody.
However, in practice, medical examinations on arrest or during police
detention are extremely rare in Punjab. The detainee is often not
aware of the possibility of such examination and no information is
provided by the police. In any event, no arrangements reportedly exist
for medical examinations to take place.
Nevertheless, doctors have a role to play in the detection of torture
during later stages of the detention and in relation to any subsequent
trial. According to the Code of Criminal Procedure, when brought before
a court a detainee may request a medical examination (Article 54).
Further medico-legal examinations can be ordered by the court at subsequent
stages of detention. In all cases where there is any doubt regarding
the cause of a death, the police must send the body for examination
by a doctor.(45) Under an NHRC directive in December 2001, the post-mortem
must be videotaped in all cases of death in custody where the preliminary
inquest or a complaint has raised suspicion of foul play. Such post-mortems
must be carried out according to guidelines issued by the NHRC.
Evidence emerging from torture cases in Punjab, as well as from doctors
and lawyers practicing in the state, suggests however that health
professionals have often refused to carry out medico-legal examinations
or even to treat torture survivors. They are also alleged to have
provided incomplete or false medical evidence, sometimes under pressure
from the police, but also pursuing their own interest or as a result
of improper inducement. Certain practices are particularly widespread:
Doctors are sometimes threatened, pressured or bribed to
exaggerate the objective findings of a medico-legal examination, often
to build evidence of an assault on the patient. Their report might
subsequently be used to file false charges in a case in which the
patient seeks to figure as the victim of an assault rather than the
The post-mortem is often delayed, by which time decomposition
has begun, making signs of torture difficult to detect. Bodies are
often kept unrefrigerated for this reason before the post-mortem.
Doctors may deliberately delay a post-mortem until evening
in order to be able to produce a report which cannot be challenged
by further examination of the body. The family, wanting to follow
tradition and to cremate the body before sunset, may in fact carry
out the cremation before seeing the post-mortem report. Once the cremation
has been performed the police inform the doctor, who is at this point
free to draw up any report as its accuracy can no longer be challenged.
As most people are not aware of this practice, no efforts are normally
made to get a court order requiring that the post mortem is shown
to the family and their lawyer before the cremation. In cases where
the family asks to see the post mortem before performing the cremation,
they reportedly have to face resistance from the police or their middle
men at local level.
Post-mortem reports often do not differentiate between the
blue marks of post-mortem stains and bruises on the body which may
indicate torture, thus making the report inconclusive. Practicing
doctors have reported that if the doctor carrying out the post-mortem
avoids making this differentiation, it cannot be made on the basis
of a videotape of the post-mortem that might be available in the case
of a death in policy custody.
Doctors often refrain from giving a provisional cause of
death until they have received the report of the forensic examination
of the viscera from the chemical examiner, even in cases where this
report is not relevant to determine the cause of death. This practice
causes unnecessary delays in court proceedings and allows the doctor
to avoid taking sole responsibility for drawing any conclusion on
the causes of death. Bribery and other pressures on forensic experts
are reportedly widespread, so that it is possible to obtain tailored
In cases where medico-legal examinations or post-mortem
examinations result in objective physical findings, doctors often
do not draw conclusions as to their probable cause, as they are reluctant
to take the responsibility for linking symptoms and findings to torture
practices. The Istanbul Protocol on the investigation and documentation
of torture affirms that the medical expert should include in his report
an interpretation as to the probable relationship of the physical
and psychological findings to possible torture or ill treatment.(46)
The Protocol includes Principles to guide such investigations which
make clear that a doctors examination of a person alleging torture
should include: the case history, including alleged methods of torture
or ill-treatment, the times when torture or ill-treatment is alleged
to have occurred and all complaints of physical and psychological
symptoms; physical and psychological examination; and an opinion on
The way the medico-legal report is distributed by the doctor
may hinder the victim of torture from contesting its contents. The
practice is that the doctor is likely to give the report to the victim
if the injuries found are minor. However, if the report was produced
as a result of a formal complaint by the victim to the police, it
is given to the police. If it was produced at the request of a magisterial
inquest, the report is sent to the magistrate and the police are likely
to be informed of its contents. This means that the police get the
report irrespective of the circumstances, while the victim gets the
report only after directions of the court. This is inconsistent with
the Istanbul Protocol which states that medical reports should be
provided to the subject of the report and to the authority responsible
for investigating the allegation of torture or ill-treatment.(47)
AI has been informed by practising doctors and human rights
groups that it is common to find in each district one or two doctors
who are sought after by other doctors doing medico-legal examinations
to assist them in making a 'convincing' false report. This, if confirmed,
would be an indication that the practice of producing tailored medico-legal
evidence is developing into an elaborate technique.
After the reorganization of the Punjab Health System in
1995, a fee was reportedly imposed on medico-legal services requested
by one of the parties in a trial(48). This exacerbates the difficulty
for low-income torture victims in accessing medico-legal expertise.
There are many reasons for the apparent cooperation of some medical
professionals in covering up cases of torture. Doctors often come
under heavy pressures from police officers involved in torture cases.
Police officials, for example, are often present during medico-legal
examinations and post-mortem examinations, and in some cases supervise
the work of the doctor. Pressures on doctors may include direct threats
and intimidation or the registration of false criminal charges against
them. A large number of the government doctors who are entitled to
perform medico-legal duties also run private medical practices which
they are not allowed to do by law and accept bribes to treat patients.
This makes them vulnerable to police pressure.
Another source of pressure is the medical and bureaucratic hierarchy
to which doctors are accountable. Ultimately the health authorities
are accountable to the civil administration of the state(49) which,
through the Punjab Public Service Commission (PPSC), makes decisions
on permanent recruitments and promotions in the health service. At
district level, both the Civil Surgeon, the most senior health official,
and the Senior Superintendent of Police, the most senior police official,
are directly accountable to the District Magistrate, the three working
in close coordination. This entails the possibility for the police
to exercise pressure on health authorities at senior level through
the civil administration. Practicing doctors informed AI that senior
officials of the administration and medical officers, themselves reportedly
subject to the influence of senior police officers and politicians,
have sometimes put pressure on a doctor to review a non-compliant
attitude so as not to damage all their career prospects.
Government doctors are an easy target for bribery by police officers
accused of torture who demand medico-legal reports helpful to their
case. Doctors who have paid bribes themselves to the administration(50)
to gain their posting may seek to recover their investment by in turn
demanding bribes for their services.
The inaccuracies and poor quality of many medico-legal reports reflect
also the difficult working conditions in which government doctors
operate. There appears to be very little training in medico-legal
duties within the three-month general training organized by the Health
Department for junior doctors recruited to government service. Most
of this training is theoretical; it usually includes a visit to the
mortuary and observation of a few post-mortem examinations. It is
the posting and not the qualification that entitles a government doctor
to carry out medico-legal duties.(51)
The shortage of equipment also seriously hampers government doctors
working in post-mortem centers that often lack basic facilities such
as proper lighting and tools. Doctors rely upon old techniques of
physical examination and outdated X-ray machines. In the cases where
hospitals have modern scientific equipment, doctors may not be trained
in how to use it to detect injuries resulting from torture. The Model
Autopsy Form issued by the NHRC is routinely not followed because
it requires skills, equipment and infrastructure which are not available
in most of the post mortem centers.
AI recognises that doctors who acquiesce in the cover-up of police
torture in Punjab are often themselves caught in a net of influences
and pressures. Nevertheless, it is as crucial for medical officers
involved in illegal practices to be held accountable as it is for
police officers and members of the judiciary.
Since the militancy period, however, there have been almost no reports
of medical officers being prosecuted for failing to carry out their
duties. On rare occasions the High Court and the PHRC have summoned
doctors to explain why they have refused to carry out medical examinations
ordered by the courts(52) in torture cases and have openly expressed
dissatisfaction, but have not recommended any action being taken against
them. Similarly, the criminal law has not been invoked against doctors
who have submitted false or incomplete medical reports to the courts.(53)
In a few cases, disciplinary measures have been taken by the Health
Department but no information is available on their implementation
and the sanctions imposed do not appear to have entailed any bar to
promotion for the doctors concerned.
In the following case, the PHRC recommended that there should be
no prosecution of a medical officer because disciplinary action was
reportedly being taken, but in practice neither disciplinary measures
were carried out nor was compensation paid. In August 1999 Tarlok
Singh was detained at the Central Jail, Gurdaspur, awaiting trial
on charges of involvement in a murder. On 27 August he told his wife
that he was being held in solitary confinement and that he feared
being killed by the jail staff. His wife asked the Superintendent
to have her husband removed from the solitary confinement cell (Phansi
Kothi), but he demanded a bribe of 40,000 Rs (about US$ 830) which
she did not have. That night Tarlok Singh apparently suffered from
severe mental stress and breathing problems but was not given any
medical care or taken to hospital. On 28 August, when his wife again
visited the jail, she was told by officials that her husband had committed
suicide during the night. She was not permitted to visit the cell
or to see the body of her husband. Other inmates told her that he
had been crying and screaming for help the whole night. The Deputy
Commissioner of Police, Gurdaspur, ordered an inquiry. It found that
the jail officials were not at fault.
On 30 August 1999 Tarlok Singhs widow filed a complaint with the
PHRC, alleging that he died as a result of negligence and failure
to provide medical care on the part of the Superintendent and the
Medical Superintendent.(54) The PHRC directed the Inspector General
of Prisons to file a detailed report and to present the post-mortem
report, inquest report and video recording of the post-mortem. The
Inspector Generals report stated that Tarlok Singh had committed suicide
as a result of chronic mental disorder, and the post-mortem confirmed
that he had died by hanging. On 24 February 2000 the PHRC concluded
that he had committed suicide but found the Deputy Superintendent
and the Medical Superintendent to have been negligent in failing to
monitor the detainee regularly as required in the Jail Manual. No
prosecution was recommended by the PHRC as internal disciplinary action
was reportedly being taken against the officers, and interim compensation
of 200,000 Rs (about US$ 4,150) was awarded to his widow. However,
she was obliged to initiate legal action in the High Court to effect
payment of the award.(55) She also had to file a fresh complaint with
the PHRC to request that disciplinary action be taken against the
officials responsible for her husbands death. In November 2002 AI
wrote to the PHRC seeking information about the outcome of this complaint,
but this case was not mentioned in the PHRC's response to AI.
V. The Punjab Human Rights Commission
The Punjab Human Rights Commission (PHRC) was set up in May 1997
under the 1993 Protection of Human Rights Act (PHRA). Its purpose
is to inquire into human rights violations and to promote respect
for and awareness of human rights in law and practice. In its first
year of operation it received 195 complaints of human rights violations;
by 2001, the number reportedly exceeded 6,300.
The PHRC is composed of a Chairperson and four Members, selected
for a five-year term by the State Governor acting on the advice of
a committee chaired by the Chief Minister. The selection of the first
members was controversial. Several local human rights organizations
expressed concern that some PHRC members did not appear to have the
record of involvement in the protection and promotion of human rights
that is required under the PHRA (Section 21). They were also concerned
that members of the human rights movement in Punjab had been excluded
from the PHRC.
In August 2002 new members were appointed to the PHRC, after the
term of the previous ones expired. According to the PHRA, the PHRC
shall be constituted by "a Chairperson who has been a Chief Justice
of a High Court; one Member who is, or has been, a Judge of a High
Court; one Member who is, or has been, a district Judge in that State;
and two Members to be appointed from amongst persons having knowledge
of, or practical experience." These provisions appear not to
have been complied with in the appointment of the new members of the
AI believes that appointment procedures contained in the PHRA should
be strictly adhered to. Public confidence in human rights institutions
around the world depends in part on the membership of those institutions,
and it is the responsibility of the appointing authorities to ensure
that, in all cases, the best qualified candidates are selected to
hold these important positions. In its 1997-98 Annual Report the PHRC
stated that "the method of appointment and removal from service
of the Chairperson and Member of the Commission, statutory guarantee
of their tenure, their status, the manner in which staff of the Commission,
including its investigative agency, [...] the financial autonomy of
the Commission, all describe the Commission's authority and autonomy."(56)
AI received disturbing reports that after the appointment of the
new members, the PHRC passed orders concerning the granting of bail
to accused, despite the fact that this institution has not the powers
to issue such orders, but has only recommendatory functions. In September
a human rights group in the state filed a Writ Petition in the Punjab
and Haryana High Court seeking a review of the recent appointments
to the PHRC. The petition was listed for final arguments for December
As of December 2002, in addition, there were three vacancies out
of five posts in the PHRC. AI learnt that as a consequence in late
2002 cases were adjourned without proper hearing to as far ahead as
February 2003. A petition seeking the filling of the three vacancies
in the PHRC has been filed in the Punjab and Haryana High Court by
a human rights group and is presently pending.
Almost five years after its establishment, it is very difficult to
assess the PHRCs work as it has not published annual reports or records
of deaths in custody or other patterns of human rights violations
in the state. The annual report for 1997-98 has been produced and
placed before the Punjab Legislative Assembly, but it has reportedly
not been published so far. Under the Protection of Human Rights Act
(Section 28), every state human rights commission should produce an
annual report and present it for discussion to the state Legislative
Assembly before publication.
The PHRC seems to have circumscribed its role mainly to responding
to individual cases of human rights violations. Activities related
to the promotion of human rights in the state appear to have been
very limited so far.(57) The PHRC also stated its commitment to engage
in a dialogue with the human rights movement in the state(58) in order
"to not only promote human rights culture, but also to propagate
its (the PHRC's) message of transparency". It further identified
areas of possible cooperation between the PHRC and non governmental
organizations, such as the identification of human rights violations,
their investigation and the development of specific recommendations.(59)
AI is not aware of the progress made by the PHRC in this program of
As far as the PHRCs powers to investigate individual cases of human
rights violations is concerned, they are limited by the PHRA itself.
In particular, it may not investigate human rights violations more
than one year after they occurred, which effectively excludes any
examination of human rights violations committed during the militancy
period. In addition, it does not have the authority to make any binding
order to the state government or its agencies, although it may make
Further limitations arise from the composition of the PHRCs investigative
staff. At present two police constables, headed by an Additional Director
General of Police, reportedly compose its Investigation Wing, with
the result that they are effectively investigating human rights violations
allegedly committed by their own colleagues. This raises serious concerns
of conflict of interest, especially if the officers remain accountable
to the police hierarchy and are likely to return to the police force
after completion of their service in the PHRC.
The number of investigators is also very low in relation to the number
of complaints received. The posts sanctioned to the Investigation
Wing number 33, but only three of these posts appear to have been
filled so far. As a result, few PHRC investigations are undertaken
by its Investigation Wing. The majority are carried out directly by
the Punjab Police on behalf of the PHRC, leading again to a situation
in which the police are both investigators and suspects. In cases
where the police investigation does not satisfy the PHRC, it may entrust
further investigation to a retired judicial officer.
The functioning of the PHRC is reported to be bureaucratic and unhelpful
towards the victims of human rights violations. Complainants often
require the services of a lawyer simply to file their complaints,
hindering the access to justice for the poorest and weakest sectors
of society. One complainant told AI:
I visited PHRC recently and was appalled to see people sitting outside
the rooms of chairman and members with their lawyers waiting to be
called as in courts. Each member of PHRC was holding a court separately
and churning out dates without bothering to see that for poor people
it is not easy to afford traveling from far off places and afford
other secondary expenses. The common man cannot even think of representing
[himself before the PHRC] without the help of a lawyer. I had to hire
a lawyer to deal with my representation to PHRC. The Commission [PHRC]
called me for personal appearance and sent [me] back to be called
again. I had to spend money on lawyer and travel to state capital
and also time. I am already repenting that I ever sent copy of my
representation to them.
These weaknesses have limited the effectiveness of the PHRC, particularly
in delivering justice to the victims of torture and to the families
of detainees who have died in police custody. A large number of complaints
about torture and ill-treatment in police custody are dismissed on
technical grounds, for example that the case is sub judice (before
a court of law) or that an internal police inquiry has not concluded.(61)
In other cases, the family of the victim may not pursue a complaint
before the PHRC because an informal settlement has been reached with
The following case illustrates how pressure on victims families or
financial inducements can thwart the PHRCs investigations into human
rights violations by the police. Baljit Kumar Balli, a 30-year-old
rickshaw puller and resident of Patiala, was arrested at his home
on 14 June 1998 after an argument with a neighbour. He was taken to
the Kotwali police station in Patiala where he was allegedly tortured
with electric shocks to his genitals and the skin around his penis
was cut. Following protests by his family and the intervention of
a local politician, he was released on the afternoon of 15 June, in
great pain and bleeding heavily. He died as a result of his injuries
in Rajindra Hospital on 18 June 1998.
The family filed a complaint in which they said that Baljit Ballis
brother and another eyewitness saw him being tortured by officers
at the police station and having difficulty in walking. The police
registered a case of culpable homicide not amounting to murder against
an Assistant Sub-Inspector, a Home Guard Officer and a Special Police
Officer.(62) The Assistant Sub-Inspector was reportedly detained for
a few hours, then released and suspended from duty. A post-mortem
examination by a team of doctors which included the Head of Forensic
Medicine at the Government Medical College in Patiala, found swellings
on the knees, thighs, penis and scrotum but gave no opinion on the
cause of death.
A local lawyers organization registered a complaint before the PHRC,
calling for an investigation and for compensation to be paid to the
victims relatives.(63) However, during the PHRC investigation, the
police produced new affidavits and statements by relatives of Baljit
Balli, including by his widow and brother. In these statements, his
relatives said that his injuries resulted from an accidental fall
during which a heavy bag of potatoes had landed on him. When the PHRCs
investigating officer asked the doctors who had carried out the post-mortem
whether this account was credible, they said that it could not be
ruled out. As a result, the case against the three accused officers
was closed. The PHRC commented that: In view of the stance adopted
by the widow of the deceased and his other close relatives, the commission
has no option but to accept fait accompli with which it has been presented
by the police.
In another case, the PHRC made several efforts to investigate a case
where it was suspected that financial inducement had prevented the
truth emerging about a death in police custody. Jagan Nath, alias
Jagnoo, a member of the dalit community living in the village of Pasla,
District Jalandhar, was arrested on 31 August 1997 after he allegedly
abused police officers. He was reportedly seen by a relative lying
unconscious in the police station in Goraya on 1 September. He died
later the same day in hospital. After a post-mortem, the police organized
the cremation of his body.
An inquiry was opened by the Sub Divisional Magistrate. On 3 September
the Superintendent of Police in Jalandhar opened an investigation
into charges of murder and wrongful confinement against an Assistant
Sub Inspector of the Goraya police station.(64) A complaint was also
filed before the PHRC, which asked for a report from the state government
and the post-mortem report. On 4 March 1998 the police, speaking on
behalf of the state authorities, told the PHRC that the father of
Jagan Nath had lodged a statement with the police in Goraya that his
son had died as a result of an epileptic fit. The post-mortem had
not been video-recorded because Jagan Naths death was not considered
to have occurred in police custody. The post-mortem report stated
that the cause of Jagan Naths death was cardio-respiratory arrest
resulting from shock and haemorrhage and that he had 21 injuries on
his body. The PHRC concluded that these injuries could not have resulted
from a fall following an epileptic fit and directed the police to
conduct a criminal inquiry. The police report, submitted on 30 November
1998, stated that, although Jagan Naths death was suspicious, the
relatives said it resulted from natural causes and no final opinion
can be given due to lack of evidence. The PHRCs Investigation Wing
investigated the case and came to the same conclusion but said that
there was a general rumour in that area that, although the deceased
had died from the results of police torture, due to monetary consideration
the relations of the deceased were supporting the version of his having
died due to injuries suffered after a fall in an epileptic fit. The
PHRC sought to question the relatives and adjourned the case on several
occasions to allow Jagan Naths father to appear, without success.
The complaint was finally dismissed by the PHRC for lack of evidence
on 21 October 1999.
The PHRC allows the state ample time to file its reports in response
to allegations of torture and deaths in custody, and it seldom summons
police officers to respond to the allegations made against them. Even
in cases in which the PHRC recognizes that there is prima facie evidence
of torture, it usually tends to recommend monetary compensation for
the victim or their family but does not recommend the prosecution
of any officers involved. As far as AI is informed, no police officers
were recommended for prosecution in connection with the 26 cases of
deaths in police custody taken up by the PHRC between 1997 and 2001.
Efforts to compensate victims are to be welcomed, and AI acknowledges
the role played by the PHRC to this end. However, redress should not
take the form of monetary awards alone but should include the prosecution
of those responsible. Prosecutions of officials should be pursued
more vigorously and other aspects of reparation for victims addressed.
Adequate and effective reparation for victims should incorporate the
Restitution: steps should be taken to restore the victim to the situation
they were in before the violation occurred, including restoration
of their legal rights, social status, family life, place of residence,
property and employment;
Compensation: steps should be taken to compensate for any economically
assessable damage resulting from violations including physical or
mental harm, emotional distress, lost educational opportunities, loss
of earnings, legal and/or medical costs;
Rehabilitation: steps should be taken to ensure medical and psychological
care if necessary as well as legal and social services;
Satisfaction and guarantees of non-repetition: steps should be taken
to ensure cessation of continuing violations, public disclosure of
truth behind violations, official declaration of responsibility and/or
apologies, public acknowledgement of violations, as well as judicial
or administrative sanctions, and preventive measures including human
The PHRCs lenient attitude is sending a signal to the public and
to the police that a police officer who violates human rights will
suffer no adverse consequences. Such a message allows the cycle of
violence to continue, in which impunity leads directly to further
The effectiveness of the PHRC is further reduced by the failure of
the state authorities to implement its recommendations. Refusal to
award recommended compensation or delay in making payments is common.
In such cases the complainant must obtain a writ from the High Court
to direct the state to comply with the PHRCs recommendations. This
has inevitably resulted in victims of human rights violations filing
complaints directly in the High Court, without passing through the
PHRC. Similarly, PHRC recommendations for the transfer of police officers
found to have committed human rights violations are often ignored
by the authorities. Even orders issued by the PHRC to the state government
and requesting it to file reports in specific cases are often ignored:
in a case concerning the dilapidated conditions of the judicial lock
up in the old court in Ludhiana,(66) the PHRC had to request from
the state government an interim report on the progress made in the
construction of a new lock up at least five times. Although in some
cases the PHRC has itself initiated legal action in the High Court
to have its recommendations effected, follow-up action of this sort
is not routine.
One case illustrates the difficulties faced by the PHRC in getting
its recommendations implemented by the state authorities. Pala Singh,
aged about 24 and living in the village of Bhai Bakhtaur, District
Bathinda, was arrested on 29 August 1997 on suspicion of involvement
in a theft. He was detained by police at the house where the theft
had taken place and was allegedly made to drink a liquid chemical.
He reportedly died at the Civil Hospital in Mour. His family alleged
that some villagers had bribed the police to harm him. The police
said that he was not in police custody, but that he had committed
suicide at the house after becoming depressed about being suspected
A non-governmental organization in Chandigarh filed a complaint with
the PHRC, which concluded that Pala Singh had committed suicide by
deliberately drinking the chemical.(67) The PHRC also said that it
considered Pala Singh to have been held in police custody and that
the police had been negligent in allowing him to commit suicide. It
therefore ordered the police to pay 50,000 Rs (about US$ 1,030) in
compensation to the family within two months. The brother of Pala
Singh also filed a petition to the Punjab and Haryana High Court seeking
an investigation of the case, and the police refused to pay the compensation
recommended by the PHRC until the High Court decision was known.(68)
The PHRC had to issue a specific order in February 2000, making clear
that the pendency of the case before the High Court had no bearing
on the payment of the compensation recommended. In December 2002 the
PHRC wrote to AI stating that the compensation had finally been paid
to Pala Singh's father.(69)
In another case, the police ignored an order of disciplinary action
issued by the PHRC. In the early hours of 29 April 2001 about 35 police
officers reportedly arrested Balwinder Singh and his sons Gurmukh
Singh and Dilbagh Singh, residents of Gurdaspur, and Sukhwinder Singh,
resident of village Hamrajpur in Gurdaspur district, at a house in
Bhukera village. They were allegedly severely beaten over a two-day
period at a police interrogation centre in Gurdaspur. The following
day Manjit Singh, Randhir Singh Dheer and other members of their family
were allegedly arrested. All were reported to have been beaten and
tortured with electric shocks at a police station in Batala, before
being released in the evening of 30 April. When the first group of
detainees were brought before a Sessions Court in Gurdaspur, the police
told the judge that Gurmukh Singh, Sukhwinder Singh, Manjit Singh
and Randhir Singh Dheers had been arrested on 1 May 2001 in a vehicle
packed with arms and explosives. The accused disputed the police report,
which allegedly contained several inconsistencies. The police also
reported that medical examination of the detainees during their detention
revealed no signs of torture or other ill-treatment.
The four detainees and their relatives complained to the PHRC of
forcible entry, illegal detention and torture by the police. On 12
June the PHRC directed that charges against them should not be put
before the court until the PHRC had scrutinized the complaint. Despite
this ruling, on 27 July the police brought formal charges of illegal
possession of arms and explosives against Gurmukh Singh in the court
of the Chief Judicial Magistrate in Gurdaspur. In early 2002 Gurmukh
Singh was reportedly still detained in the Central Jail, Gurdaspur,
while AI received no information about the whereabouts of the other
three detainees. The PHRC recommended to the police that disciplinary
action be taken against the officers who ignored its order in this
case and sought a report from the Home Secretary on the matter by
30 April 2002. No action appears however to have been taken against
any policeman, on the base of police's allegations that the accused
were planning to commit terrorist acts. In November 2002 AI wrote
to the Punjab Human Rights Commission asking for an update on the
status of Gurumukh Singh's case but the response received from the
PHRC did not mention it.
The setting up of the PHRC in 1997 sent a reassuring message to the
international community, anxious for international human rights standards
to be respected in Punjab after the militancy period. However, AI
is concerned that the PHRC has so far not been given the powers, resources
or institutional autonomy to function effectively as a check on torture
and ill-treatment in police custody.
The police and criminal justice system in Punjab are slowly moving
in the direction of a greater accountability to the public compared
with the period of militancy. However, much remains to be done to
transform these institutions so that they can fully perform their
statutory functions, including to prevent torture and ill-treatment
in police custody or to provide full redress for the victims of human
AIs research demonstrates that the continuation of torture after
the end of the militancy period is the result of the impunity for
past abuses. The case of Punjab shows how impunity and further torture
stand in a causal relation, the first feeding the continuation of
the second. There is an urgent need to break this circle and the recommendations
in this report are made as a contribution towards this objective.
The policy adopted in Punjab to deliver justice to victims of abuses
during the period of militancy is watched closely in states such as
Jammu and Kashmir and in the northeast, where armed conflicts continue.
The path taken by Punjab is in fact assessed by many as to its viability
for the other states once conflicts end there. It is therefore crucial
to demonstrate that, although the criminal justice system ceased to
function properly during the militancy period in Punjab, the victims
of that period of violence can still have justice and redress and
that the procedures and attitudes which facilitated abuses during
the period of militancy can be dismantled.
The following recommendations are being made to the relevant authorities
in light of the findings set out in this report. The "recommendations
for the prevention of torture in Punjab" reflect those made to
the Government of India and contained in the report "INDIA: Words
into action. Recommendations for the prevention of torture",
published in January 2001.
A. Recommendations To End Impunity In Punjab
Recommendations To The Government Of Punjab And To The Government
The Government of India should fully implement its obligations
under international law with respect to allegations of human rights
violations in Punjab committed during the period of militancy. Specifically
it should ensure prompt, effective, independent and impartial investigation
of all allegations of human rights violations; the right of victims
to receive redress and reparation; and that those identified as being
suspected of perpetrating human rights violations are brought to justice
in trials which meet international standards for fair trials.
· With this aim, a mechanism should be established to investigate
and prosecute large numbers of human rights violations. Special care
should be taken to ensure that: the agency charged of investigations
under this mechanism is not the one whose members are accused of having
committed the abuses; an in-built guarantee - as the admissibility
of the findings of the enquiry in trial - exists, ensuring that the
result of investigations lead directly to judicial prosecutions, where
appropriate; adequate resources are provided to any agencies entrusted
with the task.
The Government of India and the Government of Punjab should
make every effort to facilitate and cooperate fully with investigations
into human rights violations in Punjab. In the cremation grounds case
they should fully cooperate with the NHRC, providing all documentation
and other evidence which can help clarify the case.
The Government of India and the Government of Punjab should
take steps to ensure non-repetition of past violations. In addition
to bringing those suspected of perpetrating human rights violations
to justice, this should involve provision of systematic and continuous
training in human rights for police and security forces. (see also
The Government of Punjab should state clearly that illegal
practices carried out by the Punjab Police in past years will not
be tolerated and that those suspected of such practices will be prosecuted
in accordance with the law.
The Government of Punjab should ensure that disciplinary
and criminal action is taken against police or administrative officials
who attempt to subvert the process of investigation.
Those participating in the investigation of human rights
violations - including the complainant, lawyer, witnesses and those
conducting the investigation - should be given protection against
ill-treatment, intimidation or reprisal.
Any proposal for an amnesty before trial and conviction which
would cover crimes under international human rights law for law enforcement
officials operating or having operated in areas of armed conflict
should be immediately rejected.
In cases where the crimes were carried out by police under
the order of a senior officer, that officer should also bear criminal
responsibility and be brought to justice for ordering, soliciting,
or otherwise inducing the commission of such offences. Similar responsibilities,
if any, of administrative officers or elected representatives in unlawfully
facilitating or covering up the alleged crimes should be urgently
and thoroughly investigated and prosecuted accordingly.
The criminal justice system should be considered as the first
and most appropriate method of investigation and prosecution of alleged
fundamental rights violations by law enforcement personnel. The normal
functioning of the NHRC cannot be considered as a substitute remedy
to the proceedings of the criminal justice system, unless the Commission
is specially mandated to do so by the Supreme Court and it is provided
with necessary resources.
The Government of India should ensure that the recommendations
of the Advisory Committee made in 1997 -- that the restrictions on
the powers of the NHRC including the time limit for its investigations
be removed and that it be authorized to investigate all allegations
of violations by agents of the State -- are implemented immediately
and that adequate resources are provided to the NHRC to meet its enlarged
Recommendations To The National Human Rights Commission
The NHRC should look beyond monetary compensation and ensure
that its recommendations include means to ensure restitution, rehabilitation,
satisfaction and guarantees of non-repetition.
AI understands that the NHRCs choice to investigate initially
only the cases of the identified bodies illegally cremated in Amritsar
during the militancy period is a pure methodological choice, and that
after the completion of this task the NHRC will turn its investigations
to the cases of the partially identified cremated bodies. A public
commitment by the NHRC to the continuation of the investigations in
this direction will be welcome.
The NHRC as well as the Government of India and the Government
of Punjab should take up any opportunity - and in particular the one
represented by the cremation grounds issue - to elaborate mechanisms
of coordination with willing human rights organizations in the state
in order to shed light into the causes and responsibilities involved
in the decade-long violence in the state.
Recommendations To The Supreme Court Of India
In the cremation grounds case, where the NHRC does not act
under the PHRA but under a Supreme Court order, it should be given
powers by the Supreme Court to accept complaints from any individual
in the state of Punjab whose relative has been missing since last
seen in the custody of the police. These would include cases of "disappearance"
and extrajudicial execution as recognised under international law.
Bearing in mind that this task is likely to lead to the investigation
of a large number of complaints, the NHRC should be given additional
resources for investigating this specific case.
The findings of the NHRC investigations in the cremation
grounds issue should be made admissible in court, to ensure that a
link between the process of investigation and of prosecution is established.
B. Recommendations For The Prevention Of Torture In Punjab
Recommendations To The Government Of Punjab And To The Government
1. Publicly Condemn And Never Tolerate Torture
Officials at all levels of the administration should publicly
condemn all forms of torture and ill-treatment whenever they occur.
They must make clear to all law enforcement officials, public officials,
members of the judiciary and members of civil society that torture
will never be tolerated. Talk of degrees of torture or torture of
certain groups of "hardened criminals" or "terrorists"
as being "acceptable" should be condemned promptly and publicly.
Public officials should lead by example. Any public officials
found responsible for committing acts of torture or ill-treatment
whether in their private or public capacity should be publicly condemned
and prompt action taken against them.
The authorities should institute public education programs
to educate people about the unlawfulness of torture and ill-treatment
in all their forms.
The Government of Punjab should make a public commitment
to end impunity for torturers as an important signal that torture
will not be tolerated.
The Government of India should issue a standing invitation
to visit India to special procedures of the UN Commission on Human
Rights, and especially to the UN Special Rapporteur on Torture.
2. Address Discrimination
Implement existing legal sanctions against police officers
found responsible for illegal actions based on discrimination, including
when the targets are poor, dalits, women and human rights defenders,
and initiate disciplinary action against police officers found to
have acted in a discriminatory manner towards individuals.
Ensure that any program of police reform includes steps to
eradicate discrimination within the police and to specifically prohibit
acts of discrimination which lead to torture or ill-treatment. Reforms
should include ensuring representation within police and security
forces of all sections of society.
The authorities should ensure that training programs for
law enforcement personnel include training on the prevention of violence
against women, on the inviolable right of every person to respect
of their dignity and physical integrity and on prohibiting discrimination
on such grounds as racial, ethnic, caste and religious orientation.
All police stations should hold and display in regional languages
copies of relevant legislation enacted to protect certain vulnerable
groups from violence and abuse.
Incidents of torture and other human rights violations should
be carefully monitored with a view to determining correlation of their
occurrence with victims belonging to certain marginalised categories
in society. Statistics should be published and steps taken to provide
special protection on the basis of this information. Monitoring mechanisms
should involve the statutory commissions established to protect particular
groups in society as well as non-governmental bodies and individuals
who come from or represent these groups in society.
3. Prohibit Torture And Ill-Treatment In Law And Amend Or Repeal
Legislation Which Facilitates It
The law should lay down an active duty on the part of public
officials to protect human rights and prevent torture or ill-treatment
rather than a passive one of merely abstaining from it and should
include offences of ordering, preparation, participation, encouragement
and complicity in torture. Article 5 of the UN Code of Conduct of
Law Enforcement Officials, which states that it is a duty to disobey
any order from a superior to inflict torture or ill-treatment, should
be incorporated in relevant laws, including those governing policing
in Punjab. Such a provision should be included in training of and
instructions to anyone who may be involved in the custody or treatment
Protection should be provided for those refusing to carry
out orders to inflict torture in addition to the prosecution of those
who gave such orders.
Evidence elicited as a result of torture should be excluded
in all trials.
The Government of India should ratify the Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
as a matter of urgency. Domestic legislation should be enabled and
brought in line with the Convention.
4. Address Institutional Problems Which Facilitate Torture
AI urges the Government of Punjab to actively cooperate
with the Government of India in order to initiate a comprehensive
program of police reforms, including training programs, a review of
the system of appointments and promotions, amendments to laws and
creation of new oversight institutions. In the development of proposals
for police reforms the Government of Punjab should thoroughly consult
and include the Punjab Human Rights Commission (PHRC), human rights
organizations and other members of civil society. Any proposals for
police reform should be made public in full.
Police reforms should specifically address the problem of
human rights violations in custodial situations and structural problems
which have been identified as facilitating torture and ill-treatment
and other human rights violations. They should also incorporate international
human rights standards, particularly those relating to arrest and
detention procedures and safeguards against discrimination. They should
incorporate a code of ethics for police officers.
Police reforms should ensure that police are able to operate
independently in the interests of the whole community and are not,
as they are now, open to political and other influences which commonly
lead to abuses of the law including torture and ill-treatment.
Police reforms should ensure that transparency and accountability
inform appointments, transfers and promotions of police officers at
every level. They should ensure that police officers found to have
accepted or offered bribes while performing their duties or with the
aim of obtaining career advantages should meet strong departmental
action. Information about the implementation of these actions should
be accessible to the public.
Working conditions of police officers in the state should
be reviewed. In particular the problem of long duty hours should be
The Punjab Police Rules of 1935, as well as all police manuals
the state, should be urgently updated and brought in line with existing
and any future national legislation and jurisprudence which provides
safeguards to detainees. Any new legislation or manuals governing
the operations of police should be kept under regular periodic review
to ensure that the protection of human rights remains central.
The Government of Punjab should continue to refrain from
implementing the Prevention of Terrorism Act in Punjab, in consideration
of the fact that the present functioning of police in the state does
not guarantee that misuse of the Act would be prevented.
Criminal Justice System
The problem of overload within the criminal justice system
must be urgently addressed recognising that it contributes to public
tolerance of violence as a means of justice and the use of torture
and ill-treatment by law enforcement officials as a means of "instant
punishment", and prevents victims of torture or ill-treatment
from obtaining prompt redress.
Urgent attention must be given to ensuring that evidence
in criminal cases is collected through proper investigation by police
and presented to the courts after careful consideration by members
of the prosecution service. It should be made clear to all within
the criminal justice system that the use of torture and ill-treatment
as a means of coercing confessions from the accused or testimony from
witnesses is unlawful and that all, including police, lawyers (including
those provided through legal aid), prosecutors and judicial officers,
play a crucial role in ensuring that such actions do not form part
of processes for bringing people to trial.
Mechanisms should be developed to isolate judicial officers
from pressures by police, especially when they prosecute charges of
The appointment of public prosecutors at all levels should
be informed by transparency and accountability and should not be open
to pressures or influence from the executive power.
The problem of the ineffectiveness of the Legal Aid Service
in the state must be urgently addressed. Magistrates should be made
aware of their duty to ensure that effective legal representation
is provided to every accused, irrespective of their economic situation,
and that absence of a Legal Aid lawyer in court is put on record in
the case proceedings.
Legal Aid lawyers must be provided proper training to ensure
that they have the necessary competence to perform their role.
The names of Legal Aid lawyers attached to each court should
be notified on the notice board of each court as well as of the District
Bar Association, enabling the accused and their families to approach
A mechanism to monitor the effectiveness of the Legal Aid
Service should be put in place as a matter of urgency.
Political and administrative system
The link between corrupt practices within the political and
administrative system and the use of threats or force often amounting
to torture or ill-treatment must be acknowledged and addressed. In
particular, corrupt political influence over police and the resulting
resort by police to threats or force against individuals must be addressed
by taking relevant steps to remove the police from such influence
and initiating criminal proceedings against public officials found
to have abused their positions of authority for corrupt or malicious
5. Provide Adequate Safeguards For Detainees During Arrest And
Detention In Law And Practice
Police powers to arrest during investigation and without
warrant should be strictly limited and adequate safeguards for arrest
ensured. Police should be required to clearly demonstrate in writing
the need for arresting an individual as a means of reducing the number
of unwarranted arrests at the instigation of vested interests.
Records of all arrests should be kept in a police record
with bound and numbered pages and including details of the officer
arresting, the full name and details of the arrestee, the time and
place of arrest, any witnesses and any other relevant details. There
should be periodic unannounced checks by superior officers or by a
visiting body and action taken against officials found not to have
Safeguards for detainees on arrest which have been set out
by the Supreme Court, particularly in D.K. Basu vs. State of West
Bengal, should be incorporated in relevant statutory law and all police
manuals, including the Punjab Police Rules, as a matter of urgency.
Measures should be put in place to monitor their implementation and
statistics published periodically.
Magistrates should play an active role in monitoring strict
adherence to the guidelines set out by the Supreme Court in D.K. Basu
vs. State of West Bengal and they must not tolerate any failure by
police to comply with them. Any such failure should be construed as
contempt of court and should therefore attract prosecution of the
police officers involved.
Resources should be allocated to ensure that these safeguards
can be implemented in practice by police and security forces including
the provision of basic materials. Regular training should be given
to police officers incorporating these safeguards and any future safeguards
set out by the courts or in law to ensure that police officers are
aware of how such safeguards can be implemented in practice and how
they are an essential part of their role in safeguarding the rights
All detainees and accused should have a right in law to be
informed about their rights in custody. These should be read out to
them in a language they understand (recognizing the low literacy levels
in many areas of the country) and be publicly displayed in all police
stations in relevant languages.
Where unrecorded detentions have been proven, those responsible
should be disciplined and prosecuted for unlawful imprisonment and
the victims granted compensation for illegal detention.
Police manuals, codes of practice and standing orders should
be publicly available documents and be presented at police stations
Resources should be made available so that magistrates are
able to apply themselves fully to the important role they play in
assessing the lawfulness and monitoring the condition of detention
of detainees. It should be a requirement that magistrates ask detainees
questions which will clarify their identity.
In order to ensure a safe environment in which detainees
are able to bring complaints of torture before a magistrate, there
should be an opportunity for detainees to be heard by the magistrate
in the absence of those police officials who have brought them from
the police station and may have been responsible for their arrest,
interrogation and detention. Magistrates should question detainees
brought before them to ascertain that they have not been tortured
or ill-treated, have not made involuntary confessions and are not
being held in conditions amounting to ill-treatment. In doing so,
they must ensure that detainees are not withholding relevant information
from them for fear of reprisals by law enforcement officials and make
it clear to detainees that in the event that a complaint is made steps
will be taken to protect them against reprisals.
Judges should pursue any evidence or allegations of torture
and order release if the detention of an individual is found to be
Detainees should have an enforceable right to a medical examination
and should be informed of that right. A copy of the examination report
should be given to the detainee or their nominated representative
such as their lawyer or relatives. Medical personnel required to carry
out examinations of detainees or to provide treatment to detainees
in custody should be independent of police and should be duty bound
to file an official report of the examination indicating any injuries
Women should be detained separately from men and this should
be carefully monitored by independent mechanisms.
Recognizing the practice of arresting or detaining innocent
relatives, particularly women, against whom there are no charges,
as a means of forcing suspects to surrender or provide information
about wanted people, this practice should be clearly identified as
illegal and constituting the offence of "wrongful confinement".
Reports of such practices should promptly be investigated and action
taken against those responsible.
The treatment of children who come into contact with the
law must be in line with international standards on the administration
of juvenile justice.
6. Provide Adequate Safeguards For Interrogation
The role of proper investigation within the policing system
should be strengthened to reduce reliance on confession as the lynch-pin
of evidence against the accused. Detailed guidelines should be drawn
up for the interrogation of suspects in consultation with lawyers,
Bar Associations, human rights groups and medical professionals. Guidelines
should be published and reviewed periodically to ensure they remain
an effective mechanism to prevent torture and ill-treatment.
The authorities should keep under systematic review interrogation
rules, instructions, methods and practices with a view to preventing
any cases of torture in line with the Convention against Torture.
Those involved in interrogation should receive regular training on
how to implement such rules and regulations.
Lawyers should be present during interrogation of suspects.
Detainees should be given the opportunity to contact their lawyer
or seek the services of a lawyer through legal aid prior to interrogation.
All officials involved in interrogation should clearly identify
themselves to the detainee and their lawyer.
Female security personnel should be present during the interrogation
of women detainees, and should be solely responsible for conducting
body searches in accordance with the directions of the UN Human Rights
Committee and reflected in the Supreme Court's judgement in Sheela
Barse vs. State of Maharashtra (1983 2 SCC 96).
7. Provide Effective Independent Monitoring Mechanisms To Ensure
Implementation Of Safeguards
The government should ensure that there are in place independent
monitoring mechanisms to scrutinize police and security force behaviour
in all districts of the state. Their independence should be assured
by ensuring that they consist of persons of integrity respected in
the local community for their independence of judgement and political
impartiality. Their members should be fully aware of international
human rights standards and national law as well as any new legal judgements
which provide enhanced safeguards for those arrested or detained.
Given that human rights organizations play an important role in the
detection of cases of torture and other forms of ill treatment, AI
believes that they should play a role in monitoring custodial situations.
Monitoring mechanisms should have adequate powers and resources
to undertake their work including powers of unannounced, immediate
and unhindered access to all places where people may be held in acknowledged
or unacknowledged detention; access to interview detainees in private;
and access to judicial processes. They should also have powers to
obtain any documentary evidence necessary to check for implementation
of legal provisions and to promptly obtain information on the enforcement
of announced departmental action against offending police officers.
Failure by police, security forces or judicial officers to cooperate
with these mechanisms should be an offence and the government should
take immediate action against any official who fails to cooperate
promptly and fully.
Monitoring mechanisms should forward any evidence of non-implementation
of safeguards to the PHRC or NHRC and to relevant superior officers
requesting further investigation or recommending action to be taken.
They should regularly publish the results of their findings including
information on specific provisions of law which have most commonly
been violated, details of police stations which have been identified
as abusing legal provisions, and information on the background of
victims of human rights violations as a means of identifying particularly
vulnerable groups in society and identifying the need for special
8. Ensure Investigations Into Torture
The government should ensure prompt independent investigations
into all allegations of torture or ill-treatment (including rape and
death in custody). Investigations of allegations of torture or ill-treatment
should incorporate the Principles included in the Istanbul Protocol.
Those investigating the allegations should be fully independent of
the alleged perpetrators and have the necessary powers and expertise
required to open prompt criminal investigations wherever there is
reasonable ground to believe that an act of torture has been committed.
They should have the necessary resources and powers to carry out investigations
promptly and effectively, including powers to compel witnesses to
attend and to obtain documentary evidence including powers to commission
investigations by medical or other experts.
Public officials suspected of involvement in torture or ill-treatment
should not be allowed to be associated with the investigation into
the allegation of torture in any manner, and should be removed from
any position of influence over alleged victims or witnesses for the
duration of the investigation and any trial proceedings. Firm action
should be taken against any police officers found to have colluded
with colleagues accused of torture or ill-treatment in the cover-up
of the crime including harassment of the victim or witnesses.
Complainants, witnesses and others at risk should be protected
from intimidation and reprisals: a witness protection program should
be established in Punjab.
Police and other officials not promptly or truthfully complying
with the orders of judicial or other investigating officers should
be subject to immediate disciplinary proceedings.
Methods and findings of investigations should be made public
and the victim or the victim's family must be allowed access to the
complete records of the enquiry including post mortem reports and
be given the right to be represented through a competent legal counsel
during the inquiry, if necessary with the help of legal aid.
The government should consider setting up effective, adequately
resourced and independent police complaints investigation mechanisms
at district level, the membership of which should include members
of civil society as well as executive and judicial representatives.
These bodies should maintain and publish uniform and comprehensive
statistics on complaints of torture and ill-treatment by law enforcement
The Government of Punjab should institute a review of the
numerous cases of alleged torture by police which are pending investigation
and prosecution to determine the reasons for delays and to take action
against police officials found to be deliberately interfering in the
investigative or judicial process.
9. Ensure Adequate Procedures For Medical Examination Of Torture
Facilities should be made available for medical examination
by an independent medical practitioner on arrest at the request of
Those who allege torture or ill-treatment including rape
and other forms of sexual abuse should be immediately examined by
an independent medical practitioner. Police should not be present
during the examination and detailed records of the examination should
be kept in accordance with Principle 6(b) of the Istanbul Principles.
Steps should be taken to protect medical professionals carrying
out post mortems and medical examinations of alleged torture victims
from police pressure. As a step towards this, police officials should
not be present during post mortems or the medical examination of detainees.
In addition, the victims relatives or their representatives should
have the right to request any registered doctor of their own choice
to be physically present while a post-mortem is actually being conducted.
Strict departmental action and legal prosecution should be initiated
against police officers found to be interfering with the medico-legal
work of doctors. Appropriate instructions should be issued at this
purpose by the Director General of Police.
Medico-legal reports should be promptly provided to the subject
of the report and to the authority responsible for investigating the
allegation of torture or ill-treatment. This should be clearly communicated
to all government doctors by health authorities at district level.
Training of all medical professionals should incorporate
medical ethics and in particular the UN Principles of Medical Ethics
relevant to the Role of Health Personnel, particularly Physicians,
in the Protection of Prisoners and Detainees against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, and the Principles
on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
Training of the Health Department for junior government doctors,
in particular, should include: suitable sessions of forensic practice;
information on the impact of their reports on the course of justice
and hence on the lives of torture victims; information on their obligation
to comply as far as it is technically possible to the standards set
for post mortems by the NHRC and by Principle 6 of the Istanbul Principles,
including their duty to indicate an opinion about the possible causes
of death or injuries; information on their legal obligations when
dealing with a court and of the legal consequences any illegal behaviour
may attract. The cooperation of human rights organizations in designing
these trainings could be usefully sought. Similar trainings should
be made available periodically also to government doctors already
Adequate resources and proper equipment must be provided
to all post mortem centres in the state.
Any mechanism charged of independently monitor the implementation
of arrest and detention safeguards (see above, recommendation 7) should
be empowered to monitor also the medico-legal activity of doctors
reporting on possible cases of torture or ill treatment.
Strict departmental action, including possible suspension,
barring from promotions or removal from service, should be taken by
the Health Department against doctors found to have participated in
the cover-up or facilitation of torture. Information about the implementation
of these actions should be available to the public.
The PHRC, NHRC, as well as the judiciary in Punjab should
take serious notice of attempts of doctors to cover up torture cases
and should respectively recommend and initiate prosecution against
offending doctors, according to the Contempt of Court Act, 1971, and
to section 177 of the Indian Penal Code.
The Indian Medical Council should take serious notice and
appropriate action in cases in which its members are involved in cover
up of torture.
10. Bring To Justice Those Responsible For Torture
The authorities should bring to justice anyone involved
in acts of torture, and no leniency should be made in consideration
of the position held by the accused. The definition of those responsible
should include those who may have given orders as well as those who
carried out the actions. Officials who are found to have ordered or
tolerated torture by those under their command should be held criminally
responsible for their acts. An order from a superior officer or a
public authority must never be invoked as a justification for taking
part in torture. All officials must be made aware that they have a
duty to disobey a manifestly illegal order and will themselves face
criminal prosecution for such acts. There should be no amnesties for
public officials found guilty of torture.
Any public official indicted for infliction of or complicity
in torture or ill-treatment should be suspended from duty and not
permitted to occupy any public position with responsibility for people
All legal provisions which require government sanction for
the prosecution of police should be removed.
The granting of bail to individuals involved in acts of torture
must be carefully assessed by the courts, in consideration of the
fact that the accused, if released, could intimidate the victims and
their families. No bail must be granted for non bailable offences.
Those found guilty of torture or ill-treatment must be punished
in a way commensurate with the seriousness of the offence, but excluding
the death penalty and other punishments which are themselves human
In cases in which "departmental action" has been
taken against individual police officers, information should be publicly
provided on the exact nature of that action.
11. Provide Reparation To Victims Of Torture
Verification mechanisms should be put in place to ensure
that orders for compensation are implemented promptly by the authorities
and that they are paid directly to the awardee. Judicial officers
should however take notice that granting compensation to victims of
torture is in no way a substitute to prosecution and punishment of
the police officers involved.
Medical care and rehabilitation should be provided through
institutions established with state support.
12. Strengthen And Support The Punjab Human Rights Commission
The Government of Punjab should publicly state its commitment
to human rights and in that regard its support for the work of the PHRC. Adequate resources should be provided for the full and effective
functioning of the Commission including provision of investigative
staff delinked from Punjab Police. The posts already sanctioned to
the PHRC should be filled as a matter of urgency.
Provisions contained in the PHRA and related to the appointment
of members of the PHRC should be strictly adhered to. In particular,
the requirement that the members should have "knowledge of, or
practical experience in, matters relating to human rights" should
inform the appointments.
The PHRC should be given the power to visit custodial institutions
without having to previously notify state officials.
Recommendations of the PHRC should be promptly complied with.
As a means to this, it should be given explicit powers to refer cases
in which it has found sufficient evidence to merit prosecution for
a human rights violation directly to the prosecuting authorities so
that appropriate action can be taken against individuals concerned.
The Government of Punjab should provide information on the nature
of departmental action taken against police officials.
13. Provide Effective Human Rights Training To Police
Training programs for law enforcement officials and others
should include practical methods to prevent torture and not just theoretical
teaching of legal provisions and human rights standards. Human rights
education or ethics training should be integrated into training focussed
upon increasing the professionalism of the police. Training should
acknowledge the context in which violence has become accepted as a
way of "solving" problems and that this situation increases
the use of torture.
Training should include the issue of sensitivity towards
groups already suffering discrimination in the criminal justice system.
In selecting and training of law enforcement personnel, the
qualification of respect and sensitivity to human rights protection
should be a prerequisite, kept under review and counted toward assessment
of their performance and future prospects.
Human rights training including gender sensitive training
should be provided to police, judiciary and medical professionals,
in addition to programs already undertaken. The training should be
provided to all ranks from the highest to the lowest and should be
given at periodic intervals, not just at the start of the job.
The absolute prohibition against torture and ill-treatment
should be reflected in the training and all orders given to officials
involved in arrest and custody. These officials should be instructed
that they have the right and duty to refuse to obey any order to participate
Training manuals should incorporate the following international
UN Basic Principles on the Use of Force and Firearms by Law Enforcement
UN Code of Conduct for Law Enforcement Officials;
UN Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions;
UN Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment;
UN Convention against Torture, and Other Cruel Inhuman or Degrading
Treatment or Punishment.
UN Declaration on the Protection of All Persons from Enforced Disappearance.
14. Increase Cooperation With National Bodies In The Fight To
The Government of Punjab should recognise the crucial role
that many human rights organizations play in detecting and publicising
incidents and patterns of torture, pursuing justice for victims and
their relatives and identifying problems in the system which facilitate
torture or prevent justice. It should effectively respond to the observations
and recommendations made by various organizations in India and include
them in discussions on how to prevent torture.
The Government of Punjab should encourage the holding of
expert meetings of human rights activists, lawyers, medical professionals
and others including international experts, on torture and other human
Recommendations To The Punjab Human Rights Commission
The PHRC should monitor, record and publish the numbers
of complaints of torture and ill-treatment which are brought to them,
including a separate category for the number of complaints of rape
or sexual assault in custody. These records should provide a breakdown
of the profile of victims by gender and social background in order
to provide information on patterns of torture.
An annual report of activities should be regularly prepared
by the PHRC and tabled in the Punjab Legislative Assembly for discussion,
as per section 28 of the PHRA. The publication of press releases and
other special reports marking the position of the PHRC on different
issues touching on the protection of human rights would contribute
in engaging it in a dialogue with the human rights movement and the
general public in the state.
The PHRC should examine its practices and procedures to ensure
that they meet standards of impartiality and rigour and that its standards
of human rights protection are in line with international human rights
standards and do not compromise human rights in any way. Methods of
investigation set out in the Istanbul Principles should be incorporated
into the methodology and training of officials of the PHRC to ensure
professional and impartial investigation.
The PHRC, under section 10 of the PHRA, can institute its
own procedure for "rendering effective, speedy and inexpensive
justice to the victims". A procedure should therefore be designed
to help complainants to file their complaints before the Commission,
or otherwise provide them with free legal aid at state expenses.
The PHRC should establish a mechanism for reviewing its recommendations
on a periodic basis as a means of checking whether its recommendations
have been implemented and followed up by the authorities.
The PHRC should be clear that complicity by police in acts
of torture is an offence and that "communicating its displeasure"
to senior officers who have witnessed torture and taken no action
or taken steps to cover up torture is an insufficient response for
such crimes and the identification of such practices by the PHRC should
be followed by investigation and criminal prosecution.
The PHRC should undertake or facilitate proper medico-legal
training for doctors.
The PHRC should recommend, when appropriate, the prosecution
of all person found guilty of human rights violations as a means to
provide redress to the victims, in addition to the granting of a monetary
Footnotes / Endnotes
(1) This report is based on a number of different sources, including
press items, published and unpublished reports and research studies,
legal proceedings (on which all individual cases are based) and information
kindly forwarded to AI by individuals and human rights groups in the
state. These include the Committee for Coordination on Disappearances
in Punjab, Lawyers for Human Rights International and Insaaf International.
Other organizations and individuals who contributed to this report
with valuable information do not wish to be named. The Punjab Human
Rights Commission also responded to AI's request of information on
(2) See Amnesty International, India: Words into action: Recommendations
for the prevention of torture, January 2001 (AI Index: ASA 20/003/2001).
(3) India: Words into action: Recommendations for the prevention
of torture, January 2001 (AI Index: ASA 20/003/2001).
(4) India: The battle against fear and discrimination. The impact
of violence against women in Uttar Pradesh and Rajasthan, May 2001
(AI Index: ASA 20/016/2001) and India: Time to act to stop torture
and impunity in West Bengal, August 2001 (AI Index: ASA 20/033/2001).
(5) Sikhs are numerically the third largest religious minority in
(6) Under the NSA political suspects may be preventively detained
without charge or trial; in the first 15 days of detention they do
not have the right to know the grounds of their arrest. AI expressed
its concerns about the inconsistency of the provisions of this act
with international human rights standards in the document India: New
National Security Ordinance in India. Background and Amnesty International's
Concerns, October 1980 (AI Index: ASA 20/03/80).
(7) Human rights violations during the conflict have been documented
in various reports by Indian and international human rights organizations,
including: Committee for Coordination on Disappearances in Punjab
(CCDP), Enforced Disappearances, Arbitrary Executions and Secret Cremations:
Victim Testimony and India(s Human Rights Obligations. Interim Report,
New Delhi, 1999 (thereafter referred to as CCDP(s Interim Report);
Human Rights Watch/Physicians for Human Rights, Dead Silence: The
Legacy of Abuses in Punjab, New York, 1994; Amnesty International,
India: An unnatural fate, 1993 (AI Index: ASA 20/042/1993) and India:
Determining the fate of the (disappeared( in Punjab, October 1995
(AI Index: ASA 20/028/1995).
(8) The Tribune, 1 March 2002.
(9) The Tribune, 1 March 2002.
(10) The Tribune, 5 March 2002.
(11) The Tribune, 11 November 2002.
(12) For more information on Khalra's case see Amnesty International,
India: A Mockery of Justice, April 1998 (AI Index: ASA 20/07/98).
(13) For more information on the harassment of witnesses in J.S.
Khalra(s case, see Amnesty International, India: Persecuted for challenging
injustice. Human rights defenders in India, April 2000 (AI Index:
ASA 20/14/00) and India: Arrest of witness points to continuing police
harassment, September 2000 (AI Index: ASA 20/049/2000).
(14) Criminal Writ Petition, No. 447/95.
(15) For a detailed description of the developments until mid 1999,
see Amnesty International, India: A vital opportunity to end impunity
in Punjab, August 1999 (AI Index: ASA 20/024/1999).
(16) The reference here is to the contents of the order of January
1999. AI notes also that the NHRC could have chosen to give a much
wider interpretation of its role in the cremation ground issue even
before that Supreme Court order. International human rights standards,
in fact, state that "acts constituting enforced disappearance
shall be considered a continuing offence as long as the perpetrators
continue to conceal the fate and the whereabouts of persons who have
disappeared and the facts remain unclarified" (Declaration on
the Protection of all Persons from Enforced Disappearance, 1992, Article
17). According to this text, it is open to the NHRC to consider "disappearances"
in Punjab as human rights violations which are presently taking place,
and therefore not to be bound in these cases by Article 36(2) of the
PHRA which bars the NHRC from "inquiring into 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".
The NHRC could therefore have taken action on the cremation grounds
case under the PHRA, without waiting to be mandated to do so by a
Supreme Court order.
(17) The Tribune, India, 24 August 2001.
(18) See Sections 45 and 197 of the Code of Criminal Procedure.
(19) Shembhoo Nath Misra Vs. State of Uttar Pradesh, AIR n. 2102
(20) Sections 306 and 307.
(21) Section 432.
(22) Articles 72 and 161.
(23) AI expressed its concerns on the proposed amnesty for police
officers in Punjab in an open letter sent on 24 August 2001 to the
Minister of Home Affairs L.K. Advani. The organization has received
no response to that letter.
(24) CCDP, Interim Report.
(25) See also: Physicians for Human Rights, The Shadow of Police.
Report of a Fact Finding Mission to Punjab, Denmark 2000.
(26) The pattern of registered offences after the end of the conflict
in Punjab shows how widely the NDPSA is used: since 1994 the NDPSA
is one of the acts under which the majority of criminal cases are
registered in the state, second only to cases registered under the
Indian Penal Code (and in some years to those under the Excise Act).
It is closely followed by the number of cases registered under the
(27) Criminal Writ Petition, No. 134 of 1996.
(28) The largest part of the budget of Punjab Police is spent on
salaries and fuel for vehicles. See J.K. Jain, Management of District
Police. A Study, PhD thesis submitted in Guru Nanak Dev University,
Amritsar, through Punjab Police Academy, Phillaur, 1999.
(29) First Information Report No. 234.
(30) Complaint n. 1587 of 1999.
(31) Code of Criminal Procedure, Section 197.
(32) The cases were reported in Amnesty International, India: Persecuted
for challenging injustice ( Human rights defenders in India, April
2000 (AI Index: ASA 20/008/2000).
(33) For an analysis of strengths and weaknesses of the Indian law
relating to arrest and detention and of the safeguards for detainees
contained in it, see Amnesty International, India: Words into action:
Recommendations for the prevention of torture, January 2001 (AI Index:
(34) D.K. Basu vs. State of West Bengal (Writ Petition, No. 539 of
(35) For a more detailed account of the debate about police reforms
in India, see Amnesty International, India: Words into action: Recommendations
for the prevention of torture, January 2001 (AI Index: ASA 20/003/2001).
(36) See Amnesty International, India: Briefing on the Prevention
of Terrorism Ordinance, November 2001 (AI Index: ASA 20/049/2001).
(37) In mid 1997 30 police officers were reported to be in jail serving
sentences following conviction, 100 were on bail and 140 others were
facing prosecution. By December 2002 police officers convicted for
human rights abuses were reported to be between 75 and 100.
(38) Indian Penal Code, Sections 323 and 342 respectively.
(39) Indian Penal Code, Sections 330 and 331.
(40) Indian Penal Code, Section 304.
(41) Article 2.3
(42) Article 2.a.
(43) Article 6.
(44) AI was informed that Legal Aid lawyers in Punjab are presently
paid around 1,100 Rs. (about 22 US$) per case. Part of the amount
is paid to them when they take up the case, while part is given once
the judgement is passed. Every lawyer can get around 10-15 cases a
(45) Code of Criminal Procedure, Section 174.
(46) Principle 6(b)(iv) of the Principles on the Effective Investigation
and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. The Principles are a valuable tool for training
doctors in documenting torture. They constitute an appendix to the
Istanbul Protocol: a Manual on Effective Investigation and Documentation
of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
(47) Principle 6(c) of the Principles included in the Istanbul Protocol.
(48) Exemptions from this fee exist on paper, but they have reportedly
never been implemented in the case of medico-legal services.
(49) The hierarchy in the Punjab Health System is constituted of:
Medical Officer, Senior Medical Officer, different Heads of wings
(like immunization, family planning etc), Civil Surgeon (head of the
district), Joint Directors, Additional Directors and Director Health.
Up to this level all are professional doctors. They report to the
senior civil administrators (Indian Administrative Service officials),
including Additional Secretaries, Joint Secretaries and Secretary
Health. The post of Principal Secretary, who heads of Health Department,
was added recently.
(50) Permanent recruitments of doctors are made by the PPSC, while
temporary recruitments are made by the Health Department.
(51) Private doctors are allowed to conduct medico-legal examinations,
although not post-mortems. However, they are increasingly reluctant
to offer treatment, even in emergency cases, where there are medico-legal
aspects, for fear of police harassment and to avoid time-consuming
court appearances over several years.
(52) Refusal by a doctor to carry out a medical examination ordered
by a court can be construed as an act of (civil contempt( under the
Contempt of Court Act, 1971.
(53) Section 177 of the Indian Penal Code prescribes the punishment
for furnishing false information to any public servant.
(54) Complaint No. 1087 of 1999.
(55) Civil Writ Petition, No. 7261 of 2000.
(56) Annual Report 1997-98, p. 8.
(57) The PHRC organized a one day seminar on "Human rights education"
on 4 March 1998 and encouraged ten educational institutions in Punjab
to celebrate Human Rights Day.
(58) This commitment is spelt out in the Annual Report 1997-98, at
p. 8 and 14.
(59) Annual Report 1997-98.
(60) For an analysis of the limitations of the PHRA, see Amnesty
International, India: Submission to the Advisory Committee established
to review provisions of the Protection of Human Rights Act 1993, October
1998 (AI Index: ASA 20/26/1998).
(61) Legally, the fact that an enquiry internal to the police force
is taking place should not block the PHRC from taking up a case.
(62) Indian Penal Code, Section 304.
(63) Complaint No. 419 of 1998.
(64) India Penal Code, Sections 302 and 342 respectively.
(65) These recommendations are based on the UN Draft Basic Principles
and Guidelines on the Right to a Remedy and Reparations for Victims
of Violations of International Human Rights and Humanitarian Law.
(66) Complaint n. 37 of 1997.
(67) Complaint No. 12 of 1997.
(68) Criminal Miscellaneous Petition, No. 21627.M of 1997.
(69) Letter n. 12/97/PSHRC/2002/3873, dated 4 December 2002.