25 Years of legal delays: The CBI & the NHRC
Of the 22 cases that were investigated by India’s Central Bureau of Investigation (CBI), the majority are currently subject to a judicial stay for the past two decades. Even where the CBI has filed charge sheets (criminal charges), the accused Punjab Police personnel continue to repeatedly manipulate legal processes. Currently, the accused, through their counsel, have maintained that the cases require prosecution sanction from the Central Government. This argument was been rejected by four different tiers of courts in the last 15 years. The Supreme Court in 2016 emphatically rejected this argument. Despite this, the trials of these accused police officers are yet to commence before the CBI Special Court.
The CBI first became involved in the cases of enforced disappearances, fake encounters and illegal cremations, following the disappearance of human rights activist Jaswant Singh Khalra in 1995 by order from the Supreme Court of India. It was told to undertake a “high powered inquiry” into the matter.
In the mid-90s, the CBI had submitted six reports to the Supreme Court with their findings. In their final report submitted on 12 December 1996, they disclosed in open court that the Punjab Police and other security forces had illegally cremated 2,097 “unclaimed and unidentified” bodies in three districts of Amritsar. In some of its reports, the CBI described the situation as a “flagrant violation of human rights on mass scale”. Despite these findings, in the past 20 years, no details of the actual investigations including suspects, alleged perpetrators, or victims were ever made public. Request for their access even by lawyers representing the victims have been repeatedly denied.
On 19 July 2017, during the last hearing of this matter in the Supreme Court, the Court discussed enhancing the meagre compensation for the victims but again sidestepped the issue of disclosure of the contents of the reports. The following information pertinent to the case has never been disclosed:
- how many police officers were investigated,
- the nature of crimes committed by the Punjab Police,
- the total number of victims, and
- how the victims ended up as ”unclaimed and unidentified”.
The fundamental questions of whether this was an organised and systematic policy of killing and mass cremation, and where the ultimate responsibility lies, remain unanswered. The non-disclosure of the CBI investigation reports hampers any attempt to hold the state and prosecuting authorities to account.
Despite the refusal to investigate the vast majority of these cases, the CBI investigations into these 22 victims provide an extremely valuable starting point in demonstrating that the Punjab police had committed acts of murder and have gone to great lengths to conceal the evidence of their crimes that culminated in the victims’ bodies cremated as “unclaimed and unidentified”.
Our investigations revealed that infact only a tiny proportion of the 2,097 “unclaimed and unidentified” cremations exposed by Khalra were investigated by the CBI. The agency concluded its investigation in 1996. However, at that stage most of the bodies had not even been identified. It was not until 2014, 18 years after the CBI concluded its investigation, when the National Human Rights Commission (NHRC) and its sub-committees identified a further 1,527 victims, which were never investigated by the former for illegal cremations.
The 22 cases investigated by the CBI themselves are far from concluded. These cases have already been subjected to protracted delays and litigation for the last 20 years. Through their lawyers, the accused have been successful in not only delaying but even derailing the trials in order to subvert the course of justice. PDAP undertook an extensive and exhaustive process of mapping and identifying potential cases which have been investigated by the CBI.
We believe that the status of these cases has been deliberately obscured or fabricated during various proceedings at the NHRC and the Supreme Court. In the majority of CBI cases the police claimed on the chargesheets that the victim was killed in a genuine encounter. This narrative was maintained by the Punjab police throughout the two decades of litigation before the NHRC. However, the NHRC never considered the CBI findings during the course of these proceedings.
PDAP’s investigation revealed that in the majority of cases in which the CBI concluded that the encounters were fake, the Punjab Police had maintained before the NHRC that the person had escaped their custody and had been killed in a genuine exchange of fire between the police and militants. It is noteworthy that the CBI has in these cases had also filed charges of fabricating, falsifying or destroying official records against the Punjab Police.
Our investigation reveals that 90 per cent of the cases submitted to the NHRC disclose a similar story – fake encounters, and not admitted as custodial deaths – but these were never investigated by the CBI. Therefore, there remains a staggering number of extra-judicial killings that require investigation and criminal prosecution.
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