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Some silences are louder the second time. On July 4, Honey Trehan’s Satluj, a film about Jaswant Singh Khalra, the human rights worker who exposed the secret cremation of Punjab’s disappeared, finally reached Indian audiences after nearly half a decade of cuts and renamings. Two days later, it was taken down. A film about the silencing of a man who counted the dead had itself been silenced, thirty years after his murder.

Most of the commentary called it a censorship story. For those of us who practise at the Punjab and Haryana High Court, it should be an even more uncomfortable saga, because Satluj is not only about the Punjab Police. It is about the constitutional court that sat in Chandigarh through the worst of the militancy, holding the one writ that exists for precisely such moments – habeas corpus, the command to produce a missing person – and seldom used it.

Investigating on the Supreme Court’s orders, the Central Bureau of Investigation (CBI) confirmed that 2,097 bodies had been illegally cremated in Amritsar district alone, most never identified. Khalra himself, it found, was killed in custody and his body thrown into a canal. In Paramjit Kaur v. State of Punjab (1995), the Supreme Court called this “a flagrant violation of human rights on a mass scale.” Against 17,529 TADA cases registered in Punjab between 1985 and 1995, the state secured a single conviction.

Any honest reckoning with the courts, though, has to begin with parliament. In March 1988, the Fifty-ninth Amendment created Article 359A for Punjab alone, so that on a proclamation of Emergency the right to enforce Article 21, life and liberty, could be suspended in the state. For the first time since the post-Emergency settlement had placed that right beyond suspension for the whole country, habeas corpus could be switched off in one state by executive fiat.

No proclamation was ever issued and the provision lapsed in 1990, but for 21 months, the constitution itself said that the lives of Punjabis were negotiable. The police understood the message. The question is whether the judges did too.

The most careful answer we have is Jaskaran Kaur’s A Judicial Blackout: Judicial Impunity for Disappearances in Punjab, India, published in the Harvard Human Rights Journal in 2002. Kaur drew ninety habeas files for the disappeared from the high court’s own record room and interviewed the families and lawyers behind them. The interviews cited in this article are hers, and their arithmetic is damning: of the ninety petitions, 42 were dismissed, 14 withdrawn under pressure, 21 simply left pending for years. The whole process produced criminal charges five times.

Nine petitions were thrown out for “delay,”........

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