Rule of Law

(first posted on 10 September 2007)

Savagery is as much part of human nature as mother love. No amount of rationalisation, pontification or persuasion will change this fact. A thousand Buddhas cannot prevent it. Why then does law think it can control it or, even stop it?

Tags: Buddha, Love, Mother, Nature, Savagery. Law

Ubi Jus Ibi Remedium


The Slippery Slope of Indian Human Rights Jurispridence 

Recognising the overwhelming importance of the Latin maxim cited above, the normative basis of fundamental rights jurisprudence in the country, a remedy for the enforcement of these rights is incorporated in chapter-3 of the Constitution, along with the guarantees of these rights. Under Article 32 any person whose fundamental rights have been violated can move the Supreme Court directly and, as a matter of right, for an appropriate writ. Similarly, Article 226 of the Constitution empowers the High Courts of the country to issue writs in protection of these rights.[1] In this manner, the remedy is symbiotically linked with the guarantees of life and personal liberty, under Article 21 of the Constitution.

Article 21, guarantees the fundamental right of life and liberty. It reads as follows—

“No person shall be deprived of his life or personal liberty except according to procedure established by law”[2]

The crux of this guarantee, the expression “procedure established by law” has been the subject of judicial interpretation from the inception of the Constitution. The Supreme Court started from a narrow, pedantic interpretation of this phrase in the AK Gopalan case.[3] In that case, a majority of the judges of the Court held that the word “law”, as used in the phrase, meant “State-made law” and, was not
“an equivalent of law in the abstract or general sense embodying the principles of natural justice”.

Thus, for example, if the parliament passed a Bill permitting the State to carry out executions without any judicial process, and if such a Bill received the assent of the President of India, it would be “law” and the procedure prescribed in such law would be “procedure established by law”, under which the State would be entitled to conduct extra judicial executions. In an attempt to allay the alarming implications of such an exposition, one of the judges to that decision attempted to clarify the Court’s stand by stating that the law so made must be— “the ordinary well established criminal procedure, i.e., those settled usages and normal modes of procedure sanctioned by the Criminal Procedure Code, which is the general law of criminal procedure in this country”.[4] However, this wholly defective interpretation was abandoned by a series of decisions since the 1970s, culminating in the judgement in the Maneka Gandhi case.[5]

In other words, it was no longer enough to claim that a law was validly passed by the parliament and had received the assent of the President. For a law to be valid it had, also, to pass the test of being in consonance with the “basic structure” of the Constitution. If a law violated this “basic structure” then it was not valid law, even if validly passed by the parliament or a State legislature. The whole of the chapter III of the Constitution, containing the Fundamental Rights guaranteed under it, has been held to be part of this “basic structure”. By this way, the meaning of the phrase “procedure established by law” was been transformed to mean procedure that is just, fair and proper; in accord with the objects underlying the establishment of the Indian republic: and, not just procedure prescribed by the parliament. The Maneka Gandhi case also marked the overturning of the notion that the Fundamental Rights must be viewed as separate, watertight compartments. In other words, the pre Maneka Gandhi position was that in order to be struck down a law or, an executive action must directly violate the specific right mentioned in the complaint. The indirect impact of the law or order upon that right, even when it flowed as an inevitable consequence, was not to be considered by the court, while deciding upon the complaint.

The Court relied upon Article 14 of the Constitution to develop a more holistic view. Article 14 states that— “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Calling the Article ‘a founding faith of the Constitution’ and ‘the pillar on which rests securely the foundation of our democratic republic’ the Court quoted from an earlier judgement,[6] to say that—

"… equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14"

It went on to declare that—

“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence…”

Over the next two decades, the Court used the “brooding omnipresence” doctrine to develop the thesis of its obligation to do justice in ‘public law’, as distinct from the remedies available to aggrieved persons under the normal legal processes, which are called ‘private law’ remedies. The Nilabati Behara[7] case and the DK Basu[8] case, two cases that have become part of global human rights jurisprudence, have emerged out of this process. The Nilabati Behara case held that the State has a ‘duty of care’ to ensure that the citizen in its custody is not deprived of his right to life. It held that the duty in this regard, ‘is strict and admits of no exceptions’. In other words—

“The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.”

Expounding on the evolving interpretation of Article 32 of the Constitution, the Court said that the wide powers given to it by that Article impose upon it a corresponding constitutional obligation to forge such new tools ‘for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution’. It said that it was no longer enough to relegate those aggrieved by a violation of their fundamental rights to the “normal” civil law remedies. Further, making it clear that the powers of the High Courts were co-extensive with its own, the Court held that—

“This Court and the High Courts, … have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers …[9]

The decision in the DK Basu case followed a few years later, in December 1996. This is the only decision that addresses the issue of death in custody/ disappearance from custody in general terms, as something that pervades law enforcement in India. It represents a long overdue acknowledgement of the state of affairs. The judgement laid down binding and enforceable guidelines to prevent violation of the fundamental rights of the citizens of India by the law enforcement agencies. The Supreme Court declared that a failure to comply with the guidelines laid down by it would tantamount to contempt of court and, would be punishable as such. Taking the Supreme Court at its word, some lawyers in Kashmir filed contempt petitions, instead of petitions for a writ of habeas corpus. Besides, the DK Basu decision was invoked in many cases, where a regular petition for a writ of habeas corpus was filed, to buttress the argument that the action of the security forces was illegal and not permissible.[10]

The principle of stare decisis requires that subordinate courts, including the High Courts, must always take their cue from the superior court. The Indian supreme court must be found wanting even if this principle is limited only to the formal pronouncements of that court. However, in the real world it is not just the formal decisions of the Supreme Court that delineate the jurisprudence. The attitude of the Court is read from the totality of its pronouncements and, interpreted in the overall context in which the nation subsists. In the DK Basu case, even as the Court held that ‘State terrorism is no answer to combat terrorism’, it attempted to ‘balance’ the needs of the State with those of ‘life and liberty’. It referred to the fact that the ‘police in India have to perform a difficult and delicate task’. In a manner that typifies its approach to human rights jurisprudence, it mentioned— “the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals” to assert that ‘freedom of an individual must yield to the security of the State’. Resorting to other Latin maxims, it implicitly declared that the principles contained in these maxims must be read into the guarantees contained in the fundamental rights chapter of the Constitution. The two principles that the Court thus elevated state that— ‘The safety of the people is the supreme law’ and ‘Safety of the state is the supreme law’.[11] 

Thus, on the one hand the Court held that ‘The cure cannot … be worse than the disease itself’, approvingly citing the decision in Miranda Vs. Arizona (384 US 436), where the American Supreme Court held that the argument of “society’s need” cannot be used to abridge the guaranteed rights of the individual. On the other hand, in the same judgement the Court adverted to criticism in “certain quarters” that increased enforcement of fundamental rights, would make it difficult to detect crimes committed by hardened criminals and that if the court were to lay to much of emphasis on protection of the fundamental rights and human rights such criminals would go scot-free; with the result that crime would go unpunished and, in the ultimate analysis, society would suffer. The Court called this concern “genuine” and called for— “a balanced approach … to meet the ends of justice”.[12] 

The Latin maxims cannot be faulted. The fundamental rights chapter of the Constitution is premised on the first one and, the nation-state paradigm, which the second maxim seeks to exalt, underpins the entire edifice of the Rule of Law in modern times. However, it is not possible to assume that the Court is unaware of the message that such observations will convey to the State and its agencies in a country where impunity is the norm and, where is it routine to invoke the public weal and, threats to the ‘sovereignty and integrity’ of the nation to perpetrate “flagrant violations of human rights on a mass scale”.[13] In such a climate the Court’s remarks can and, have been construed by the police and other agencies engaged in internal security duties as a continuing licence to act in breach of the law. Not surprising, given this ambivalence on the part of the Court, custodial killings and disappearances have been an endemic feature of post independence India. Equally not surprising there is, virtually, no jurisprudence connected with the violation of the right to life, in the country.

This is not to say that the Supreme Court has condoned each and every case of death in custody. However, its attitude has been clearly contingent upon the attendant circumstances. In cases of custodial killing by the police, in non-insurgency situations, cases do get registered against the accused police officers. And, when such matters come to the Supreme Court it, does take a stern view of the matter.[14] But when it comes to the armed forces of the Union and/ or the other security forces ‘battling insurgency’, the Court has consistently avoided dealing with culpability and, the punishment for it. Sarcasm is the most that its ire extends to. For example, in the Sebastian Hongray case, the Supreme Court allowed itself to be trapped into challenging the temerity of the officials in lying to it, failing to address the lawlessness that underlay these lies.[15] For this reason the Court’s outrage became a display of ineffective umbrage over ‘lese majesty’ of its self. In these circumstances, even the “public law” remedy of compensation has become a virtual gag for shutting the possibility of enquiry into the unpalatable aspects of the counter insurgency mechanism that the country has perfected to subdue its rebellious periphery.

If the judicial remedy is a failure, the constitutional guarantees are suspect; since they subsists entirely at the mercy of the executive. We are, then, faced with a conundrum: an executive that abides by the Rule of Law does not violate the rights of the people. In such States, the judiciary is not called upon to protect the rights of the people, except occasionally. Where the executive does not respect these rights, it becomes necessary for the judiciary to intervene and to restore the balance of rights. In such States, however, more often than not, the judicial remedy is ineffective. Though the solution to the problem posed largely lies outside the realm of judicial practice, there is much that ails the commitment of the Indian judicial system to upholding the rights to life and liberty and, the Rule of Law. It is patent that developing the necessary political resolve to rid India of this lawless, impunity will be a painful and a long drawn out process. In the meanwhile, it ill behoves the judiciary of this country to abdicate is responsibility, howsoever arduous. To quote Montesquieu— “Law should be like death, which spares no one.”

[1] The remedy under Article 226 is much broader, encompassing the right to move the court for violation of all legal rights, including the fundamental rights. However, unlike in the case of Article 32, the High Court is not obliged to entertain a petition. Its jurisdiction is discretionary. 
[2]  Over the decades, Article 21 has become an omnibus provision, encompassing within itself everything, from the basic right to life and liberty to the right to livelihood, food, shelter, health, education, environment and much more. Interpreting the provision in ever expanding concentricities the Court has expounded that the right to life includes within itself all that forms part of a life of dignity as a civilised human being. 
[3]  AK Gopalan V. The State of Madras.(AIR 1950 SC 27). This case challenged the validity of a preventive detention law, on the ground that it violated Article 21. 
[4] An expression vague enough to encompass almost everything that might have been done by an ingenious State apparatus over the past century of imperial rule 
[5]  Maneka Gandhi V. Union of India (AIR 1978 SC 597)
[6]  E. P. Royappa V. State of Tamil Nadu (1974 [4] SCC 3) 
[7]  Nilabati Behera V. State of Orissa and others (AIR 1993 SC 1960)
[8]  AIR 1997 SC 3047 
[9]  The Court added that the State, “has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings”. It also stated that relief in exercise of the “public law” powers under Article 32 or 226 can be granted only once it is “established” that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redress is possible. 
[10] Needless to state, invoking this judgement made no difference whatsoever to the proceedings or the outcome of these cases. 
[11] Salus populi est supreme lex and Salus republicae est suprema lex. 
[12] DK Basu V. State of West Bengal, supra 
[13] The words used by the Supreme Court in a case alleging thousands of enforced disappearances in Punjab, upon reading the report of the investigation into these allegations by the CBI (Central Bureau of Investigation), on the orders of the Court. 
[14] Most of these judgements are not in habeas corpus petitions but in cases arising out of the trial of the accused police officers. They were passed while disposing of appeals by the accused police officers, or by the State government, against their conviction/ acquittal, as the case may be. 
[15] Sebastian Hongray V. Union of India, AIR 1984 SC 1026

(Note: This was published in Tehelka in 2004 under the title ‘Bandipora Redux: A Tale From Two Insurgencies’)

From Nagaland to Punjab and from Andhra Pradesh to Kashmir, from the early 1950s to the year 2003, spanning almost the entire time and space comprising independent India, there have been reports of the security forces, including the army, forcing local people to act as shields and to actively participate in anti-terrorist operations. These reports have been consistently denied by the authorities who have routinely give out other reasons, such as ‘caught in the cross-fire’, ‘aiding/ abetting terrorists’, etc, to explain away civilian casualties. This is an account of two such cases, one from Kashmir and the other from Punjab. In both cases, the army and the Punjab police, respectively, categorically denied the allegation against them, claiming that the villagers were killed in the cross-fire between the terrorists and the security forces. Since neither incident was the object of an authoritative fact finding, the truth will never be known. However, the following accounts give us a glimpse of the truth. Both accounts are based upon the eyewitness testimony of those who survived the operation itself, being similarly press-ganged into service by the troops involved and/ or surviving family members and villagers who witnessed the entire operation.

Report by Ashok Agrwaal, advocate and human rights activist

On the 5th of March 2003 there was an encounter at village Kaw-chak, PS, Kreeri, Tehsil Pattan, District Baramulla, J&K. Three militants were stated to have been killed. Some soldiers are also said to have lost their lives. In addition, two villagers were killed and several wounded. The Army/ RR claimed that these “civilian casualties happened in the “cross-fire” between them and the terrorists.

The encounter started early in the morning of the 5th. Villagers were pressed into servicing the Army’s needs from the inception. Teams of soldiers also scoured the surrounding area for more “volunteers”. At about 10 a.m three army vehicles (trucks) came from the direction of Kreeri. Ashiq Hussain Malik was sitting in his shop, by the side of the road. Mohamad Arif Mir s/o Abdul Gafar Mir and his brother Ghulam Mohamad Mir residents of Dolipora were walking on the road from Dolipura, towards Kreeri. Ghulam Mohiuddin, who had just returned from Pattan where he had spent the night, had stopped near a house opposite the shops by the road on hearing about the crackdown/ encounter in his village. The trucks stopped near the shops. Two officers, one in sunglasses and another, jumped out of the vehicles. The officer in sunglasses grabbed Ghulam Mohiuddin from behind and dragged him towards the vehicles. They ordered Ashiq Hussain Malik to close his shop and come with them. The Mir brothers, who had by then reached where the army vehicles were parked, were ordered to get into the army vehicles. However, Ghulam Mohamad Mir, a government employee, was let off when he pleaded that he had to report for duty.

Inside the truck there were four other people, residents of village Watargam, who had similarly been picked up by the Army. They were all brought to the site of the encounter, in village Kaw-chak, in the truck.

At the encounter site they were pulled out, ordered to remove their upper garments and their backs were marked with a rubber stamp, presumably in order to fix their identity. They were divided into pairs. Each pair was given some explosives – that looked like a car battery in shape and weighed about 15 – 20 kilos – and were ordered to carry these into the house in which the militants were holed up and to place the devices against the walls inside the ground floor of the building. The militants were on the upper floors.

On showing hesitation to do the army’s bidding all the villagers were beaten and threatened with death. Each explosive devise (called a “mine”) was picked up by two persons and carried inside the house. Meanwhile the exchange of fire with the militants was going on. The militants were also calling out to the villagers, warning them not to cooperate with the army. Frightened by the firing and the shouts of the militants the villagers were placing the mines against the outside wall of the house. After some mines were in place they were made to carry large stones and pile them against the mines so as to cover them. Eight villagers were doing this work, which went on till two pm.

Around 2 pm, as they were coming out of the house after placing some stones, Ghulam Mohiuddin and Arif were injured. Ghulam Mohiuddin received three bullets in his left arm. Arif was hit by two bullets in his right upper arm, near the shoulder. Both fell down, unconscious. The others dragged them to safety. They were then taken in a matador that had been commandeered by the army and brought to the Bone and Joints Hospital, Barzalla, Srinagar. Ghulam Mohiuddin stayed in the hospital for 15 days. The bones in his arm having been shattered, after two surgeries the doctors told him that he would require at least one more, with no guarantee that he will recover the use of his arm.

Several villagers who houses are close to the site of the encounter had fled to another part of the village (called Harnau) to escape being forced into military service. Sometime that afternoon, some army jawans came to this part and selected four people. These were: Abdul Rashid, aged 42, Ghulam Mohd. Mir, aged 40, Abdul Hamid Bhat, aged 25 and Bashiruddin aged 30.

At the encounter site three of them were taken towards an army truck loaded with boxes. Each of them was given four bottles filled with petrol with cotton wicks stuffed in the neck (Molotov cocktails) and made to sit behind the house of one Mohd. Akbar Bhat, opposite the house of Ali Mohd. Bhat where the militants were holed up.

Ashiq Hussain Malik was sitting already present behind Mohd. Akbar’s house when they reached there. The soldiers were very angry with Ashiq Hussain as they felt that he had spoilt/ damaged one of mines entrusted to him. They claimed that but for this they would have destroyed the house and killed the militants holed up inside, much earlier. Due to this delay, they claimed, one of their comrades had died. They were threatening him with dire consequences while Ashiq was repeatedly pleading his innocence.

The soldiers took the Molotov cocktails from the villagers and carried them inside Mohd. Akbar’s house. The officer with sunglasses (called ‘captain’ by the villagers), asked for more Molotov cocktails. Two of the villagers, Bashiruddin and Abdul Hamid Bhat, were ordered to get some more from the truck. When they returned, Ashiq and Abdul Rashid were not present at the back of the house. They were made to sit down again. No talking was permitted between the villagers but Bashiruddin and Abdul Bhat heard the soldiers shouting – ‘Bhaag gaye saale’ accompanied by heavy firing. They kept sitting there, thinking the soldiers were referring to the militants.

Shortly thereafter, there was a call– ‘Aur civilians ko bhej do’. Bashiruddin and Abdul Bhat were sent inside the house. They were forced to remove their upper garments and their backs were marked with a stamp. Bashiruddin was handed a mine and Abdul Hamid was made to pick up a couple of stones. We were pointed out the spot, near a window, where they were to place the mine. Immediately after they returned the mine they had placed blew up and the house in which the militants had holed up, collapsed. Thereafter, the villagers were ordered to go and pull out the bodies of the militants from the rubble. Initially, they could not find any bodies. The soldiers then ordered them to blow up a cattle shed adjoining the collapsed house. Just after that they heard a cry for help from the rubble. On the soldiers’ orders the villagers placed an explosive device with wires near that spot, which was then exploded. The cries for help persisted. Some other villagers were brought to the site all were put to the task of removing the rubble. The newcomers were: Maksood Ahmed Din, Bashiruddin’s brother, Ali Mohd. Bhat and his younger brother, Abdul Hamid Bhat and Ghulam Nabi Waza. The rubble was very hot. Fires were burning in some places. Their hands and feet were singed by the burning heat. Finally, they pulled out the militant who had been calling out for help. He was still alive. He was asking for water. The officer with sunglasses refused saying— ‘we gave him so many opportunities to surrender’. 

The officer and his men interrogated the captured militant. His name was Shabir. He was from Kachua Mukam (Kandi area), Tehsil and district Baramulla. Then they took him away somewhere. The villagers were ordered to continue their search beneath the rubble. They found two fully clothed bodies. At first they did not recognize them and thought they were dead militants. The soldiers asked them to search their pockets. From one pocket they recovered a purse and from the other a bunch of keys and an identity card. On seeing the identity card they realized that the bodies were of two villagers, both of whom had been pressed into service by the Army. The man with the purse was Abdul Rashid Mir, a teacher by profession and the man with the keys and the identity card was Ashiq Hussain Malik. The keys were to his shop. Half of Abdul Rashid’s face had been torn apart by a burst of bullets. Ashiq had a similar burst of bullets on his back around the waist. The villagers were ordered by the officers to keep quiet about the fact that two civilians, villagers, had been killed in the encounter and made to continue the task of removing/ searching through the rubble. The rubble was very hot – their hands and feet were getting blistered and burnt. However, the officers refused to allow them to pour water on the rubble to cool it. 

Around sunset the Army/RR commandeered some more villagers. They were asked to pick up the bodies. Eight villagers picked up the two bodies and carried them to the army vehicle by the road. Then they were asked to bring a third body. This turned out to be of the militant whom they had pulled out of the rubble, alive. After this, they requested an officer – addressed as ‘CO. Saab’ – that they be allowed to go as they were exhausted. Four of them were allowed to go. They were: Bashiruddin, Ghulam Mohd. Mir, Ishtiaq Ahmed Ganai and Abdul Hamid Bhat. Others continued to work at the Army’s orders, searching the rubble. Bashiruddin’s brother, Maksood was one of them. Maksood and about 30 other villagers were forced to continue removing rubble till 11 AM the next morning. Most of them were from village Dolipura. About eight or ten people were from village Kaw-chak. These people recovered one body around 9 pm. It was fully burnt. Another body was recovered around 10 AM the next day. They also recovered two guns and empty magazines. 

Around 11 AM a procession of protestors from Dolipura arrived at the site. The Army fired in the air to disperse them. Frightened by the firing the protesters ran helter skelter. Shortly thereafter, thinking the situation might deteriorate, the soldiers left the place. The bodies were taken by them to Hambray. Ashiq Hussain’s brother, Tariq Ahmed, who had reached the site in search of his brother, was also forced by the Army to clear the rubble of the demolished house. Even though by that time his body was already in Army custody, they told Tariq that Ashiq’s body was lying beneath the rubble. 

The bodies were handed over to the police at P.S. Kreeri. Ashiq’s parents were away on the Haj pilgrimage when he was killed. Minister Ghulam Hasan Mir, Minister Sharifuddin Niazi and a Corp Commander (a Sikh) from the army came for Taziat (the shared mourning after a death). One of the officers wounded in this encounter, a Major, also came. The Corp Commander expressed regrets for the civilian deaths. ‘However’, he said, ‘the casualties cannot be helped as we cannot do our job effectively without civilian help’. The Ministers promised to take up the issue of the Army using civilians in this manner. They also promised relief to those killed and injured. The Major expressed regrets and said that had he not been injured, he would not have allowed this mishap to occur. 

Both families lodged a report with the police but till the time of this investigation, about a month and a half later, they had not been given a copy of the FIR. The visiting Ministers had ordered that inquiry into the incident and directed that it should be completed within 15 days. They also ordered payment of ex gratia compensation and compassionate appointment to next of kin under SRO 43. According to Ashiq Hussain’s family they had been paid an ex gratia of Rs. 1 lakh but the compassionate appointment had not yet been given. The inquiry against the Army had made no progress. The families of those killed were afraid to press for the inquiry though they wish that justice is done with the guilty officers being identified and punished. 

The villagers asked the CO of the unit concerned, who had come to condole, to produce the guilty officer. He merely echoed the Corp Commander and said ‘We need the civilians. What happened will happen again. This cannot be helped’. Publicly, the Army took the stand that the two villagers, Ashiq Hussain and Abdul Rashid Mir were killed in ‘cross-firing’ during the encounter. However, the truth of the matter was reported extensively by the press who visited the village on the very next day, the 6th of March 2003. On being asked whether their were any circumstances in which they would willingly provide assistance (of the non-dangerous kind) to the security forces in their battle against the terrorists/ militants the response of the villagers was a uniform and vehement no. The villagers also informed the investigation team that some days later, even as the ministers were promising that they would ensure that such incidents are not repeated, the Army conducted a similar operation at Tilgram, using the local villagers as human shields and for menial tasks that thrust them into the midst of the firefight and put their lives at extreme risk. However, fortunately no civilians were killed in that operation. There was only one militant involved in that encounter. 

Report by Ram Narayan Kumar and Amrik Singh, human rights activists[1] Police version Based upon the affidavit filed before the NHRC by Ashok Bath, Superintendent of Police (Detective), Tarn Taran. 

Police Version
On 8.6.92 the police received information that Surjit Singh Behla s/o Tarlok Singh Jat, r/o Behla and Madan Singh @ Maddi @ Sukhdev Singh @ Chota Behla s/o Santokh Singh r/o Behla, self-styled Deputy Chief and Lieutenant General of Bhindranwala Tiger Force of Khalistan (BTFK), a sikh militant outfit was holding a meeting with other terrorists and planning to commit a major terrorist crime. A police party with officers of 91/Bn and 102 Bn CRPF cordoned the village Behla. When the police were searching the first floor of the house of Manjinder Singh Behla the terrorists, who were hiding inside the house, opened fire and killed HC Jarnail Singh and LC Harjit Singh 4160/TT. Constables Pargat Singh,  Som Datt and L/K Kalash Chander were injured. The terrorists “cordoned” the police party who had gone inside the house to conduct their search. The army was deployed to tighten security arrangements for the night. 

The next morning the police officers who were trapped inside the house were freed with the army’s help. The cross-firing continued till the next day. Two jawans of the Punjab Police were killed and one constable and 3 jawans of the CRPF were injured in the encounter. After the firing ceased, the police recovered 9 bullet ridden, dead bodies of terrorists. Four of the bodies were identified on the spot and the remaining five bodies were identified later on. (Note: The affidavit provides the identities of only 8 of the 9 bodies: Harbans Singh, Ajit Singh, Lakhwinder Singh, Paramjit Singh @ Shingara Singh, Sakkattar Singh @ Mangga Singh, Naranjan Singh, Madan Singh @ Maddi @ Sukhdev Singh @ Chota Behla, and Jagtar Singh @ Varpal. A large quantity of arms and ammunition was recovered from the site (house) of the encounter. 

The other side of the story: based upon interviews conducted with the families of the deceased and other eyewitnesses 

Nine persons were killed at village Behla in the course of an encounter on 8-10 June 1992. Out of these nine, three were militants and six were villagers unconnected with the militancy who the security forces used as human shields to storm the house in which the three militants were hiding. The body of one person killed in the encounter remains unaccounted for. The CCDP’s (Committee for Coordination on Disappearances in Punjab) investigation took it to the homes/ families of 8 of these 9 persons and other eye-witnesses in the village. 

On 8 June 1992 morning, a large mixed force, comprised of the Punjab police led by SSP Ajit Singh Sandhu and Khubi Ram, SP (Operations), and units of the army and paramilitary, surrounded the old and abandoned house of Manjinder Singh, a former member of the Punjab Legislative Assembly, in village Behla. Apparently, the house was being used as a hideout by militants associated with Surjit Singh, s/o Tarlok Singh from Behla village. 

One of his associates, 18 year old Sukhdev Singh, alias Maddi, son of Santokh Singh, was also from Behla. After completing his matriculation, he had started working in a Sugar Mill at Sheron. The police often illegally detained and tortured his elder brother Kulbir Singh for information because of their suspicions of his having militant connections. Sukhdev Singh was unable to tolerate this injustice done to his brother and decided to become a militant himself. Later on, his father Santokh Singh was abducted and disappeared by the police. The third associate of Surjit Singh Behla was Harbans Singh, s/o Mehr Singh from Sarhalli in Tarn Taran subdivision of Amritsar district. 

Before storming the house, the police officers decided to round up seven or eight villagers to walk in front of the police force and to act as human shields. The following are the names of the six of those who got killed in the course of the operation that followed: [1] Kartar Singh, s/o Aasa Singh, [2] Niranjan Singh, s/o Boor Singh, [3] Sakatter Singh, s/o Niranjan Singh, [4] Lakhwinder Singh, s/o Channan Singh, [5] Gurmej Singh and [6] Ajit Singh, s/o Mangal Singh. The police randomly selected these people, and this had nothing to do with suspicions of their possible involvement in the militancy. For example: Ajit Singh, from Behla village in Tarn Taran, was a 60 year old man married to Preetam Kaur with seven children. He owned a horse driven cart and was employed by a brick kiln owner to transport bricks to his clients.  He had no political or militant association, no criminal background and no enmity with anyone in his village. Ajit Singh had that morning carried a cartload of bricks to the house of Niranjan Singh when the police came and forced him along with Niranjan Singh and his sons to be part of the front column. Niranjan Singh, a 55 year old farmer, was married to Balwinder Kaur and had three sons and a daughter. He was a devout Sikh unconnected with any political or militant organization and took care of his family by cultivating three acres of land and selling milk from his buffalos. Twenty-five year old Sakatter Singh was Niranjan Singh’s son. He used to help his father with the agricultural work and was married to Sharanjit Kaur with two daughters who are now barely teenagers. He had never been arrested before and had no political or militant connections. Sakatter Singh died in the police operation. His younger brother Sukhchain Singh, also included in the front column, managed to escape after getting seriously wounded. Twenty year old Lakhwinder Singh, the youngest son of Channan Singh and Gurmej Kaur, had no political or militant associations or record. He was watering his fields when the forces picked him up and compelled him to walk in front of them as a human shield. Kartar Singh, a 62 year old farmer, was married to Iqbal Kaur with four adult children. He also had no record of a political or criminal past. 

After entering the house, the security forces discovered that it had a basement but no door to enter it from inside. They started demolishing the floor that was also the celler’s roof. When the militants holed up inside opened fire, the police pushed these six villagers to the front, and using them for cover, fired back. All of the six persons who have been named died in this situation. Two others got seriously injured. The encounter lasted around 30 hours. Three militants, holed up in the cellar who also got killed, are: [1] Surjit Singh Behla, s/o Tarlok Singh, [2] Sukhdev Singh Maddi, s/o Santokh Singh. Both were from Behla village. [3] Harbans Singh, the third militant killed in the action, was a resident of Sarhalli Kalan . 

In the evening of 9th June, the police extricated the bodies of all the people who had been killed in the action without bothering to distinguish the militants from the others who the police had used as human shields. The next morning, the police told the press that they had killed nine militants in the action. In the aftermath, several newspapers published stories questioning the police claims and explaining how the six unconnected villagers had been pushed into the jaws of death. Two others, wounded in the course of the operation, had been abandoned by the police to their own resources to obtain medical help. Embarrassed by the publicity, the Punjab government later announced an inquiry, which was, however, never carried out. 

The police cremated all the bodies at Tarn Taran on 9 June 1992, labeling them as “unidentified/ unclaimed”, though the family of Ajit Singh attended the cremation. Other families were not allowed to attend. Subsequently, in 1995-96, on orders from the Supreme Court the CBI carried out an investigation into the illegal cremation of thousands of bodies by the Punjab police between 1984 and 1994. Its December 1996 report to the Court divided the 2097 such cremations by the police in three cremation grounds in Amritsar district of Punjab into three categories: “identified”, “partially identified”, and “unidentified”. The CBI’s placed the cremations of Ajit Singh, Lakhwinder Singh and Harbans Singh, a militant and an associate of Surjit Singh Behla, in the “identified” list. Five others, [1] Surjit Singh, r/o Behala, [2] Sikkatar Singh, r/o Behala, [3] Niranjan Singh, r/o Behala, [4] Madan Singh, alias Maddi, [5] Kartar Singh, r/o Behala, were placed in the “partially identified” list. 

According to the CBI, SHO Gurbachan Singh of Tarn Taran city police station carried out these cremations in the same case of encounter under FIR No. 57/92. Out of these, Surjit Singh and Madan Singh, alias Maddi, (who must be Sukhdev Singh Maddi) were the militants. The other three, Sikkatar Singh, Niranjan Singh and Kartar Singh had been picked up to serve as human shields.[2] These cremations from the identified and partially identified lists of the CBI do not account for the body of Gurmej Singh, one of the six villagers forced to become a human shield and killed. The CBI’s list of unidentified cremations does not show any cremation on 9 June 1992. 

End Notes 
[1] Reported in Reduced to Ashes: The Insurgency and Human Rights in Punjab pp 293 & 496, Pub. South Asia Forum for Human Rights, Kathmandu, May 2003 
[2] Curiously, the CBI duplicated the record of Niranjan Singh’s cremation under Sl. No. 121/392 of its “identified” list. Here, it recorded Niranjan Singh’s cremation as having occurred on 18 April 1991,over a year earlier than its actual date. Further, the information to identify all was not only available to the police but had also been published in newspaper reports. Hence, it is not clear why the CBI decided to place some of them in the list of partially identified bodies.

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