K.P.S. Gill has made the following claim in “The Tribune’ dated 10/8/92 “At about 5 am the police party at the naka adjoining Canal minor bridge near Sahnewal on the Sahnewal Delhon road, saw a Maruti Car coming from Dehlon towards Sahnewal. The police signaled the car to stop with the help of a torch light. The car immediately stopped and two young men jumped out of the car and tried to escape in fields while firing on the police party, the police also fired in self defence and the exchange of fire continued for about half an hour. The police parties from the adjoining areas also joined and kept chasing the Militants. When the firing stopped the body of a young militant aged about 35-36 years was found lying near the site of the encounter. One AK 47 rifle, one empty magazine and one magazine with six rounds were recovered from the site of the encounter. The other militant escaped. The dead militant was identified as Sukhdev Singh alias Sukha resident of Dasuwal (Tarn Taran) and “mukh sewadar of the Babbar Khalsa International (chief general) since 1982.”
As most of us know that at 5 am it is broad daylight in the summers. The owls stop hooting and the birds begin to sing. Therefore can anyone believe that in broad daylight the car stopped seeing the torch light? Gill’s statement further says that the two occupants tied to escape. One of them escaped. Is it possible for any of the two to escape, especially if one has seen a check post where police are armed with deadly weapons? The Tribune states that “Bhai Sukhdev Singh had been heading the most dreaded outfits of the militant for the past 10 years.” If this is correct is it possible that while discharging a whole magazine of an AK 47 rifle Bhai Sukhdev Singh could not do to one of his adversaries what they did to him? In my opinion this is another fake encounter, one of thousands in which Sikhs have been killed without bringing them to trial.
What does the Indian Constitution and law say on the issue of killings by the State? Article 21 of the Indian Constitution says “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This fundamental right of every citizen states unambiguously that the state can deprive a person of his life or liberty but not with-out the “procedure established by law.” If the Indian Constitution had visualized that only Indian citizen deserved “life and liberty” according to the “procedure established by law” then it would have stated this very categorically and clearly. But the Constitution says “no person.” This means that even foreigners, Khalistanis, Nagas, Mizos and even Prabhakaran or Pakistanis or Chinese cannot be killed since they fall into the category and meaning of a person. When the right to life and liberty is a right of every person living in India I am often amazed at how intellectuals of the majority community shrug their shoulders when I protest at any person being killed by the state without the “procedure established by law.” It is not that the Indian Constitution is adverse killings but it has set certain procedures of how a person can be dispatched. Even then, there are certain limitations which I will discuss later.
However, at this juncture let us discuss the procedure established by law which allows the state to deprive a person of his life or personal liberty. Chapter III of the Code of criminal procedure lays down (1) Courts by which offences are tribal, (2) the sentences which these courts can pass including passing of sentence in case of conviction of several offences at one trial, Thus Section 26 of this code states that a person guilty of any offence has to be tried (i) the High Court, (ii) Court of Sessions, or (iii) any other court by which such offence is shown in the First Schedule to be tribal. Thus the procedure laid down by law for bringing a law breaker to book is through trial in a Court of Law, The police or Gill under the law have no right to take away the life of a person. This is very clear.
If a person is found guilty by a court of law and sentenced to death, section 4 13 of the Code of Criminal Procedure says “When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause suck order to be carried into effect by issuing a warrantor taking such other steps as may be necessary. “Section415 of this code further allows an appeal to the Supreme Court. It is only after ever channel is exhausted, including the President’s power to grant pardons and to Suspend, remit or commute sentences under article 72 of the Constitution that a person can be deprived of his life and personal liberty, Once every channel for redress is exhausted the Sessions Judge issues a warrant addressed to the officer-in-charge of the jail in which the accused is confined in Form No,.42 of the Second Schedule by Sessions Judge authorizing him to carry out the order of the Court. During and after Operation Blue Star Sikh women and even pregnant ones have been killed in fake encounters by the police Indian army and security forces However, the law shows some compassion for women as section 416 of the code says “If a woman sentenced to death is found to be pregnant; the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.”
It is now clear that the Constitution and the law have laid out a clear procedure for depriving a person of his life and liberty. Had there been any ambiguity on this question then the law would not have visualized a contingency like a pregnant woman. In the case of a Sikh a price is put on his head and he is executed without a Trial, The Tribune dated 10/8/92 quotes Gill “Reward money of the Budsingwala case had been given to the police personnel.” The Tnbune further states, “he (Gill) said that any policeman doing good work on the anti-militant front would be promoted.” “Good Work” in police parlance means extrajudicial killings. This is how the India state operates in violation of its own Constitution and laws vis a vis the Sikhs. The policy of the state in a nutshell boils down to the English proverb “You give the dog a bad name and ‘hang it’.”
Thus we see that there is a vast difference between law and its practice. The putting of rewards on the heads of Sikhs and then killing them in the most barbaric manner (see the pictures of Budsingwala and Sukhdev Singh) was a medieval Mughal practice, Now this has become a routine. If the Indian Constitution and the law forbid the killing of a person “except according to the procedure established by law,” international law is very clear that no militant or combatant can be killed by the state. These laws have been stated variously, from which I will quote, suffice it to say that the Indian Constitution vide article 51 recognizes these laws as is clear from sub clause (c) of this article which states “the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”
International law recognizes combatants or militants as freedom fighters. The legal status of such persons struggling against colonial and racist regimes for the right of self-determination (The Shiromani Akali Dal passed the resolution for the right of self-determination on the day of Baisakhiat Talwandi Sabo in 1990, Longowal and Badal factions reiterated this at Fatehgarh Sahib in December 1990, A memorandum to this effect was given to the Prime Minister of India in January 1991, which had the approval of the Shiromani Gurdwara Parbhandak Committee and il was again reiterated in a memorandum submitted to U.N. Secretary General on his visit to New Delhi in April 1992, The Memorandum carried the signatures of Sardar Gurcharan Singh Tohra, Sardar Parkash Assembly 1973. The principles agreed were as follows:
(i) Such struggles are legitimate and in full accord with the principles of international law.
(ii) Attempts to suppress Struggles against colonial and fascist regimes are incompatible with the U.N, Charter, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to colonial countries and Peoples as well as with the Principles of International law concerning Friendly Co-operation among sincere, such attempts constitute a threat to peace and security.
(iii) Captured combatants are to be accorded the status of prisoners of war under the Third Geneva Convention,
(iv) The use of mercenaries against national liberation movement is a criminal act.
(v) Violation of the legal status of combatants entails full responsibility in accordance with the norms of international law.
(vi) The U.N. General Assembly declaration of 1974 considers all forms of repression and cruel and inhuman treatment of women and children including imprisonment, torture, shooting, mass arrests, collective punishment, destruction of dwellings, forcible evictions as criminal acts.
(vii) The St.Petersburg Declaration of 1868 bans the use of military force against the civilians. Operations Blue Star, Wooxrose, Rakshak I and II launched by the Indian army against the Sikh peoples are in violation of this declaration.
(viii) The Peace Conference at the Hague in 1899 and 1907 banned the bombardment of undefended towns. The Indian army action in 1984 at Amritsar and 36 other holy shrines of the Sikhs was in contravention of these Conferences.
(ix) In 1929 the Geneva Conferences adopted convention fur providing better provisions for the treatment of the sick and wounded,
(x) All Geneva conventions remain in force today. Since various changes have come about in international humanitarian law, the Diplomatic Conference on the Reaffirmation and Development of International law, which met in Geneva from 1974 to 1977, adopted two Additional Protocols to the 1949 Conventions, As, far as the Sikhs and their genocide are concerned will deal with Protocol Il which deals with victims of internal armed forces of government and dissidents or other organized groups which convoy part of its territory. Any combatant or freedom fighter, according to Protocol II falls into the hands of the adversary shall be considered as a prisoner of war, and the measures for the protection of prisoners are described in this Protocol II contains rules relating to the victims of non-international armed conflicts and thus completes the basic principles laid down in article 3 (annex to the 1949 Convention). Both Protocols furthermore call for humane treatment of all persons who do not, or no longer, take part in hostilities, Murder, torture, mutilation and corporal punishment are totally banned, There are provisions for the case of the sick and wounded, for the protection of civilians against acts or threats of violence, Starvation as to method of combat, and forced movement, Hostile acts against historic monuments, works of art, or places of worship or their use in support of military aims are prohibited. y All that is happening to the Sikhs, their planned extermination, vi0lation of their fundamental and human rights is not only against the India Constitution, the Indian law but also against international law. At the time of writing the Indian State has introduced the most brutal law, Terrorist and Disruptive Activities (Prevention) Act which is violative of article 14 of the Indian Constitution. This article guarantees equality before the law. But whereas the majority community enjoys this right and cannot be held in police custody for more than 24 hours, 38,000 Sikhs all over the country are held under this act TADA. They include a High Court Judge Ajit Singh Bains, Sikh clerics, Gurdey Singh Koenke, Jasbir Singh Rode and Ranjit Singh, lawyers, businessmen, women and children, Harjinder Singh Jinda and Sukhdev Singh Sukha have been awarded capital punishment under this act Secret Trials are held under this draconian law. No press or relatives are allowed. Review and appeal to the High Court is banned. Confessions to a police officer which are inadmissible otherwise in a court of law vide section 25 of the Evidence act are allowed under this act.
The Constitutional validity of this law has been challenged by me in the Supreme Court as way back as 1990 but the Supreme Court and designated courts hand down stuff penalties to innocent Sikhs. It’s the case of putting the cart before the horse. There is no rule of law. The Hindus who massacred thousands of Sikhs in 1984 have not been brought to trial. Some of the accused are Members of Parliament representing the Congress (I) party.
The Congress Party has committed unforgivable crimes against the Sikh peoples and their policies are reminiscent of Hitlers Final Solution, I have been imprisoned or detained in some of the worst Prisons and police stations and they if I may make a comparison are India’s Auschwitz’s. The Congress and other Hindu fundamentalist parties are not ready to redress one Sikh grievance,
All they do is impose Marshal Petain’s Vichy or the Soviet Union’s Najibullaha or Honicker regimes in the Punjab, Today the Congress (I) Beant Singh government in Punjab is not part of the solution but a Part of the problem. State repression, fake encounters, executions of innocents, detentions legal and illegal, are standard government Policy, Gill and the police are the prosecutors, judges and executioners.
“Worse than the executioner is his valet,” said Mirabeau the French Revolutionary politician,
Article extracted from this publication >> October 2, 1992
