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III. Background

Thousands of mothers await their sons even though some may know that that the oppressor has not spared their sons’ lives on this earth. A mother’s heart is such that even if she sees her son’s dead body, she does not accept that her son has left her. And those mothers who have not even seen their children’s dead bodies, they were asking us: at least find out, is our son alive or not?¹
-Jaswant Singh Khalra, human rights activist, killed October 1995

The religious minority community of Sikhs represents two percent of India’s population, and 60 percent of the population in the northern Indian state of Punjab.²

The 1980s in Punjab witnessed a decade-long insurgency by Sikh militants, fueled by failed attempts at procuring greater autonomy. Militants were responsible for numerous human rights abuses during the violent separatist struggle for an independent Khalistan, including the killings of Hindu and Sikh civilians, assassinations of political leaders, and the indiscriminate use of bombs leading to a large number of civilian deaths in Punjab and other parts of India.³ Under the cover of militancy, criminals began to coerce businessmen and landowners, demanding protection money. The Indian government responded with force, leading to numerous allegations of human rights violations.⁴

The Sikh militant movement in Punjab escalated after the Indian Army raided the Harmandir Sahib (Golden Temple) complex in Amritsar, Punjab—the center of Sikh religious and political life—on June 4, 1984, along with 41 other gurdwaras⁵ in Punjab.⁶ Scores of militants had retreated into the Harmandir Sahib complex.⁷

During the exchange of firing with the ensconced militants after troops entered the complex, and the subsequent executions by the Army, thousands were believed to have been killed, the majority of them Sikh pilgrims.⁸ The indiscriminate use of force led to heavy damages to the Harmandir Sahib complex which caused tremendous outrage among Sikhs, many of whom did not support the militant campaign for a separate Khalistan.⁹ On October 31, 1984, two Sikh members of Prime Minister Indira Gandhi’s security staff assassinated her in Delhi. After the assassination, senior politicians and police officers orchestrated pogroms of Sikhs in various cities across India, killing at least 2,733 Sikhs in Delhi alone.¹⁰ Gangs of assailants burned Sikhs alive, raped women, and destroyed their gurdwaras and properties. The violence continued unabated for four days. None of the senior politicians or police officers identified by victims and eyewitnesses as organizing or perpetrating the massacres were held criminally responsible.¹¹ On September 28, 2007, 23 years after the pogroms, the CBI said it was closings its case against some Congress politicians because it was unable to find witnesses; most were dead or had refused to testify.¹² In August 2005, the Justice G.T. Nanavati Commission had found that no proper investigation was done by the police even in cases registered by them.¹³

From May 11, 1987 to February 25, 1992, the Indian government dismissed the elected government in Punjab and imposed President’s Rule, that is, direct governance by the central government.¹⁴ In addition, India’s Parliament enacted counterinsurgency legislation that facilitated human rights violations and shielded security forces from accountability for these violations. The National Security Act was amended to allow for detention without trial for up to two years in Punjab for acts prejudicial to the security or defense of India.¹⁵ The Terrorist and Disruptive Activities (Prevention) Act of 1987 (TADA), provided the police with powers of search, seizure, and arrest.¹⁶ Under Section 15, a confession allegedly voluntarily made before a police officer, not lower in rank than a superintendent of police, was admissible in court against an accused (or co-accused, abettor or conspirator) for an offense under this Act.¹⁷ There were widespread allegations that police routinely used torture to obtain confessions from detainees and/or planted evidence as a means of detaining them under TADA. The Terrorist Affected Areas (Special Courts) Act of 1984 provided for special in-camera courts in “terrorist affected” areas that could conceal the identity of witnesses. In addition, a defendant charged with “waging war” had the burden of proving his innocence.¹⁸ The Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983 empowered security forces to search premises and arrest people without warrant. Section 4 of the Special Powers Act allowed security forces to shoot to kill suspected terrorists, and Section 7 extended prosecutorial immunity to any action taken pursuant to the Act.¹⁹ TADA, too, provided immunity from prosecutions for any acts in “good faith done or purported to be done in pursuance of this Act.”²⁰

Indian security forces arbitrarily detained, tortured, executed, and “disappeared” tens of thousands of Sikhs in counterinsurgency operations.²¹ In the early 1990s, Director General of Police (DGP) KPS Gill expanded upon a system of rewards and incentives for police to capture and kill militants, leading to an increase in “disappearances” and extrajudicial executions of civilians and militants alike.²² The United States government described the Punjab police practice of faked encounter killings in 1993:

In the typical scenario, police take into custody a suspected militant or militant supporter without filing an arrest report. If the detainee dies during interrogation or is executed, officials deny he was ever in custody and claim he died during an armed encounter with police or security forces. Alternatively, police may claim to have been ambushed by militants while escorting a suspect. Although the detainee invariably dies in “crossfire,” police casualties in these “incidents” are rare.²³

In the majority of cases, the police abducted the victims of extrajudicial executions or “disappearances” in the presence of witnesses, often family members.²⁴ Family members of the victims further experienced multiple forms of abuse. A recent study conducted by Physicians for Human Rights (PHR) and the Bellevue/NYU Medical Center Program for Survivors of Torture revealed that family members of the “disappeared” were also tortured in over half of the cases they investigated.²⁵

Security forces further persecuted their victims through extortion and destruction of property, such as crops, livestock, and buildings. They obstructed justice by intimidating witnesses and lawyers, detaining and torturing family members, and failing to comply with court orders to release detainees.²⁶ In the 1994 report Dead Silence: Legacy of Abuses in Punjab, Human Rights Watch/Asia and PHR described the government counter-insurgency operations as “the most extreme example of a policy in which the end appeared to justify any and all means, including torture and murder.”²⁷ Hundreds of perpetrators have escaped accountability,including all of the major architects of these crimes. ²⁸   

In early 1995, human rights activists Jaswant Singh Khalra and Jaspal Singh Dhillon, of the Akali Dal political party, used government crematoria records to expose over 6,000 secret cremations by the police in just one of then 13 districts in Punjab. They focused their investigations on illegal cremations, putting aside other possible ends of the victims’ bodies, such as dismemberment or dumping in canals. Jaswant Singh Khalra described how the hesitation of family members to report “disappearances” led him and Dhillon to the cremation grounds: “[C]ountless mothers, countless sisters weren’t ready to say that [their loved one was “disappeared”]. They said, “[I]f you take this issue further, and our son is still alive, they [the police] will kill him.”²⁹ Thus, Khalra and Dhillon went to the cremation grounds:

We went and asked the employees: ‘…During this time, how many dead bodies did the police give you?’ Some said we burned eight to 10 everyday.  Some said there was no way to keep account; sometimes a truck full of bodies came, and sometimes two to four dead bodies came… [T]hey told us we could get the account from one place: ‘The police gave us the dead bodies, and the municipal committee gave us the firewood.’³⁰

As Khalra began collecting information from the municipal records which gave the number of dead bodies brought by specific police officers and the amount of firewood purchased to burn the bodies, he also began to receive threats from the security forces. Eventually, the Punjab police abducted Jaswant Singh Khalra on September 6, 1995, secretly detained and tortured him for almost two months, and murdered him in late October 1995.³¹ His body was dumped in a canal. Six police officers were convicted of charges relating to his murder and abduction in November 2005, although a petition calling for charges against former DGP Gill remains pending.³²

The end to counterinsurgency operations has brought an end to systematic extrajudicial killings and “disappearances” in Punjab. However, the vast majority of these “disappearances” remain unresolved, and major perpetrators of the abuses from 1984 to 1995 have received promotions and currently occupy senior positions in the Punjab police. Their ongoing tenure and the impunity granted to almost all perpetrators have created a system that continues to facilitate custodial abuses, in particular illegal detention and torture.³³

The Indian government, the state government of Punjab, and Punjab police have all denied the extent of systematic “disappearances,” extrajudicial executions, and torture that occurred in Punjab during the counterinsurgency, at most admitting to a few errant abuses. Some officials privately justified the violations as necessary to combat the insurgency.

For instance, in response to reports by the United Nations (UN), the Indian Government has denied abuses committed during the counterinsurgency. At the 50th session of the UN Human Rights Commission in February 1994, Dr. Manmohan Singh, then India’s finance minister, downplayed widespread human rights abuses in India as “aberrations” that had occurred in confronting terrorism.³⁴ In response to 95 communications sent by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions in 1992, the Indian government replied that the police acted within their code of conduct, and that every allegation of human rights abuse was “scrupulously investigated and most of them were found inaccurate, highly exaggerated or deliberately false.”³⁵ In response to allegations of “disappearances” submitted by the UN Working Group on Enforced or Involuntary Disappearances in 1994, the Indian government failed to acknowledge the systematic abuses and the judicial impunity protecting police perpetrators. The Working Group summarized the government’s response:

The Government denied the allegations that there may be several thousand cases of disappearances in Punjab…. Scrupulous care had been taken to protect the rights of the individual under due process of law. Habeas corpus was available to all under the Indian judicial system in all circumstances. Wherever there was any suspicion of police excesses, action was taken. In Punjab, action had been taken against 210 police personnel…. All cases of alleged disappearance which were brought to the attention of police authorities were investigated.³⁶

Human rights groups, however, have consistently reported on the failure of the judicial system to address human rights abuses in Punjab.³⁷

During the counterinsurgency in Punjab, the Indian government also rejected reports by international human rights organizations on widespread abuses. In a letter issued to Amnesty International that denied the group permission to visit Punjab, the Indian Embassy stated: “The only turmoil in Punjab are the acts of violence by terrorists who have been indiscriminate in their butchery of innocents of all communities.” The letter further stressed India’s sovereignty and its antipathy to foreign interference in its domestic affairs.³⁸ In response to the 1991 Asia Watch report Punjab in Crisis, the Indian government denied the abuses, stating that it did not tolerate any violations of the law.³⁹

Punjab government institutions have equated human rights activists with terrorists and consistently used the insurgency to justify their actions. In the Punjab mass cremations case discussed below, the response of the Punjab police and government of Punjab has been to portray demands for a full accounting of abuses as negating the contributions of police in fighting insurgency.⁴⁰ Submissions by the state of Punjab have stressed the number of police killed in the insurgency.⁴¹ In a 2002 application before the National Human Rights Commission, the state of Punjab denied the abuses but also wrote:

The time frame under consideration of this Hon’ble Commission was an extraordinary time. It was necessary to take all steps to ensure that terrorists do not become role models for the impressionable youth and that they are not glorified and eulogized….An added area of concern for the State was to ensure that attempts of the invisible hand to ignite communal tensions were promptly contained.⁴²

The Punjab police have also associated human rights activists with Pakistan’s Inter-Services Intelligence [ISI] such as in this deposition which claimed:

[C]ertain non-governmental organizations working in the area of preservation, promotion and sensitisation of the public to human rights issues, have undertaken a sustained and well financed campaign of disinformation to malign the image of the Punjab Police so that the low intensity war of terrorism conceived, designed and fuelled by ISI continues unabated.⁴³

In requesting the Supreme Court to rule in their favor, the Punjab police have attempted to gain sympathy by referencing “the barrage of writ petitions” they are facing:

It is respectfully submitted that a large number of writ petitions are being filed on bogus charges. Human rights activists are coaxing people and even threatening them to file writ petitions by incorporating concocted facts. Thus the police is unable to rivet its attention against the terrorists in full measure.⁴⁴

KPS Gill, director general of police in Punjab at the height of the abuses, has led the campaign against police accountability. His writings and speeches have consistently referred to human rights activists as terrorists or agents of Pakistan’s ISI. He has further equated terrorism with the filing of writ petitions. In “The Litigation Weapon Against the Police and the State,” he wrote:

Far more insidiously, however, at some time during the course of the terrorist movement, the weapon of the writ petition was discovered and deployed. A period followed thereafter, when both the Kalashnikov and the writ petition were used in tandem…. But elements unhappy with the return of peace in the State advanced the litigation gun from its status of a support weapon to an instrument of primary attack. By now, this weapon had been upgraded from an inefficient single-shot gun to an automatic rapid-fire implementation of war…. The distortion and manipulation of the legal process and the coordinated orchestration of the media that is being resorted to by an utterly compromised ‘human rights’ lobby are an integral part of a propaganda war aimed against peace and stability.⁴⁵

Gill has consistently denied the systematic aspect of the abuses, at most admitting to aberrations and claiming that he has regularly disciplined his subordinates.⁴⁶ Gill discusses these writ petitions as a threat to national security and a strategy of “front organisations of the defeated terrorist movement.”⁴⁷ He further blamed the alleged suicide of senior police officer Ajit Singh Sandhu—responsible for Khalra’s abduction, torture and murder—on human rights activists:

Had this [writ petition] assault no motive other than justice, one would merely say, ‘Let the law take its own course.’ But when it claimed its first life, that of SSP Ajit Singh Sandhu, I was shaken by the success of those who had failed so abjectly against us in open conflict. The war they lost in the field had been resumed with vigour as a propaganda war. Through this exaggerated barrage of petitions, these forces are pursuing a dual strategy to immobilize and demoralize the police and to create among the people enjoying the fruits of a hard-won peace a sense of oppression that the forces can exploit to their perfidious ends.⁴⁸

In 1997, after SSP Sandhu’s suicide, Gill wrote a letter to Prime Minister IK Gujral, in which he described the legal cases proceeding against SSP Sandhu and other policemen as “an unprecedented and unprincipled inquisition,” “a sustained and vicious campaign of calumny, of institutional hostility and State indifference,” and public interest litigation as “the most convenient strategy for vendetta.”⁴⁹

This refusal to acknowledge crimes committed by security forces, and in fact, choosing instead to condemn the messenger, has only added to the culture of impunity in India, where extrajudicial means to end insurgencies or punish alleged terrorists have claimed numerous lives, many of them innocent.