ILLUSTRATIVE CASES

            An illustrative list of cases decided or considered during the course of the year indicative of the range of complaints addressed by the Commission is given below. Under the category of police brutality, a representative sample of cases are summarised, relating to custodial deaths, torture and fake encounter. These are followed by cases of police harassment resulting from illegal detention, false implication etc. The other major sections include human rights violations in jail custody, negligence of public authorities, violations of rights of women and children, dalits, minorities, disabled etc., human rights violations by the security forces and other important cases

 POLICE BRUTALITY

 (A)        CUSTODIAL DEATHS

 CUSTODIAL DEATH OF HAMID IN RAISEN DISTRICT, MADHYA PRADESH

Case No.1460/95-96/NHRC

             The Commission took suo-motu cognizance of a report which appeared in the newspaper “Naye Duniya”, Bhopal on 15 June 1995 regarding the custodial death of one Hamid, son of Hafizulla.  The news item said that the father of Hamid alleged that his son was picked up by the police from his home for questioning in a theft case reported by his employer, though in fact he was not present at the place on the date of the alleged theft.  He was beaten mercilessly and released on 13 June 1995 and again arrested on 14 June 1995 on the night of which he died.  He was rushed to the Raisen District Hospital and later to Hamidia Hospital, where on arrival he was declared to have been brought dead.

             The Commission called for a report in the matter from the Government of Madhya Pradesh.  The State Government in its report stated that Hamid was summoned on 14 June 1995 to the Police Station for interrogation and had consumed some poisonous substance while in the police custody. He was rushed to the hospital where he was declared brought dead. The Additional District Magistrate had also conducted an inquiry according to which Hamid was illegally detained by the police from 8 June 1995 to 13 June 1995 for interrogation. The post-mortem report indicated that there were simple injuries on his body. The Additional District Magistrate concluded that the death was, indeed, the result of the consumption of poison by Hamid during the period when he was illegally detained in police custody. The officer-in-charge failed to take him to the hospital in an ambulance and, instead, took him in a police van where the personnel were not trained in first-aid. As a result, Hamid died en route to the hospital. What was glaring was the fact that the police records showed that Hamid was summoned on 11 June 1995 and on 13 June 1995, and that he was released on both dates after interrogation.

             The Commission was distressed to see the blatant manner in which records had been tampered with by the very people who were duty bound to maintain  law and order and to uphold the rule of law. Every citizen has the right to life which includes freedom from illegal confinement and torture. Hamid, an innocent citizen, was illegally confined by the police without any formal arrest and later died in police custody. The Commission recommended that Government of Madhya Pradesh pay Rs.50,000/- as immediate interim compensation to Hamid’s family members. The Commission also recommended to the Government of Madhya Pradesh that it initiate proceedings against the errant police officials.

DEATH OF AN ACCUSED IN POLICE CUSTODY DUE TO BEATING

Case No.351/20/97-98/CD

             The District Magistrate, Nagaur, Rajasthan informed the Commission of the death in police custody of one Rameshwar Jat, who had been called to the police station for questioning in a case. It was stated on behalf of the police that the deceased remained in the police station upto 4.15 PM on 19 July 1997 and thereafter quietly slipped out and that one Daulat Singh Rajput reported to the police at about 6.15 PM that a young man had fallen into a well at about 5.00 PM. He was taken out with the help of neighbours and was identified as Rameshwar Jat. He later died in the hospital.

             The Additional District Magistrate, Didwana who conducted the inquest, came to the conclusion that the deceased was illegally called to the police station on 18 July 1997 and 19 July 1997 and was physically beaten up by certain police personnel. Being frightened as a result of the beating, he ran away from the police station and fell into a deep dry well in consequence of which he sustained injuries which proved fatal. The Inquest Magistrate held certain police officials, including the SHO responsible for the incident and ordered registration of a case for being investigated by the CID.

             The Commission agreed with the report of the Inquest Magistrate and awarded a further compensation of Rs.50,000/- to the dependents of the deceased, in addition to the Rs.50,000/- already sanctioned by the Rajasthan State Government to his legal representatives.  The Commission has received a compliance report from the State Government on the payment of compensation of Rs. 50,000/-.

FRUIT VENDOR BEATEN TO DEATH BY POLICE FOR NOT PAYING "HAFTA":  DELHI

Case No.951/96-97/NHRC

The Commission initiated proceedings in this case on the basis of a report received from the Sub-Divisional Magistrate, Shahadra, Delhi indicating that the death had occurred of one Matloob Hussain on 13 July, 1996 following a severe beating inflicted on him by two policemen of Police Station, Geeta Colony, Delhi on 11 July, 1996. 

The Commission subsequently received petitions from certain NGOs, namely the People’s Union for Democratic Rights and the People’s Union for Civil Liberties, and also from Shri Syed Shahabuddin, former Member of Parliament, who raised the general issue of the violation of the human rights of petty vendors in Delhi and elsewhere in the country. They felt that the Commission should protect this group from the atrocities committed against them by the police and other authorities, including the demands made on vendors to pay `hafta’.

In response to the Commission’s notice, the Sub-divisional Magistrate of Shahdara gave a detailed account of the events that had occurred. The report received from the Police, however, gave a somewhat different version. From the reports, however, the Commission inferred that a Head Constable and a Constable had subjected the deceased to physical violence and the beating was so severe that it ultimately proved fatal.

The Commission observed that the higher authorities had done well in taking action against the delinquent police officials by putting them under suspension and prosecuting them after due investigation, though regrettably this was done only after the death of Shri Hussain. The Commission was, however, pained to observe the lack of sensitivity of the concerned Station House Officer (SHO) who had neither taken adequate and immediate action for the medical treatment of Shri Hussain nor for the registration of a case against the errant police officials even though he was aware of the incident. The Commission thus assumed that the atrocities committed were with the knowledge of, or in connivance with, the SHO. The Commission, therefore, recommended that disciplinary action be initiated against him for the various acts of commission and omission of which he has been found guilty by the Magisterial inquiry and by the Commission. The Commission also recommended that the conduct of two police officials, the DCP (East District) and the ACP, Public Grievances Cell be looked into and appropriate action taken.

The Commission further recommended to the Government of the National Capital Territory of Delhi that it ensure an effective and expeditious trial of the errant officials and make sure that they are punished in accordance with law and not allowed to go scot-free because of weak prosecution. It also directed the Government to ensure that the implementation of the scheme framed by the Municipal Corporation of Delhi in regard to hawkers/petty vendors be implemented at the earliest.

The Commission considered it deeply regrettable that an innocent fruit vendor of about 33 years of age and supporting a family of seven, lost his life as a result of a severe beating by two policemen of the Delhi Police mainly because he had failed to oblige them by paying the "Hafta" (the illegal weekly collection made to permit petty vendors to carry out their trade).

The Commission asked the Government of the National Capital Territory of Delhi to pay a sum of Rs.2.5 lakhs to the next of kin of Matloob Hussain who had died of police violence.

The Commission also asked the Delhi Government to constitute a High Powered Committee to look into the menace of the collection of "Hafta" by the police and other civic functionaries from the petty vendors and other similarly placed persons. The Committee was asked to suggest ways and means to curb this menace so that this vulnerable section of society can live in peace.

The Commission subsequently received a report from the Government of the National Capital Territory of Delhi indicating compliance with the directions of the Commission.

DEATH OF NAGESHWAR SINGH FOLLOWING TORTURE AND HUMILIATION IN POLICE CUSTODY :  BIHAR

(Case No. 7482/95-96/NHRC)

            Shri Kameshwar Singh, in a complaint to the Commission, alleged that his brother Nageshwar Singh was arrested on 22 August 1993 by the Railway Police at Barauni and handed over to the Vidupur Police, District Vaishali. He was mercilessly beaten, tortured and humiliated in custody.  His head was shaved, face painted and he was driven around the town on a donkey. Shri Kameshwar Singh also alleged that the torture in police custody was the reason for the death of his brother on 25 August 1993.

             In response to the Commission's notice, a report received from the DGP, Bihar admitted that the death of Nageshwar Singh was caused while he was in police custody though he died while in hospital where he was being treated.  It was reported also that he was not produced before a Magistrate after his arrest and was kept in police custody for more than 24 hours.  As many as 11 injuries on his person were recorded in the post mortem report,  which also mentioned the fracture of three bones in the chest region.  In addition, the allegations about the shaving of his head and being driven around town on a donkey  were substantiated by the statements of witnesses.  The DIG Tirhut range opined that the Station Officer(SO)-In-Charge of the Police Station was guilty and the Superintendent  of Police Vaishali, was directed to take action against him.  However, as the complainant also filed a petition before a court on the same issue, investigation in the said case was stalled.  The guilty SO-In-charge though initially suspended, had been reinstated and no action had been taken against the other erring police officers, though it was admitted that  Nageshwar Singh died owing to torture and beating inflicted by the police.

             Upon perusal of the report, the Commission noted that  the death of the victim in police custody was admitted.  In addition, it was also admitted that the deceased was not produced before the Magistrate within 24 hours of his arrest from which an inference of illegal confinement with ulterior motives could be drawn.  Further, atrocities of the police on the deceased were also admitted. The Commission noted that though six persons were arraigned as the assailants, no action was taken against them on the ground that the matter was pending before the court.

             Having regard to the facts and circumstances of the case, the Commission directed the Government of Bihar to pay Rs. 3,00,000 as immediate interim relief to the dependents of the deceased, complete the investigation of the case expeditiously, and prosecute the guilty police officials invoking, if necessary, the provisions of Section 210 of the Code of Criminal Procedure.  Further, the Commission directed that departmental action be initiated against the errant police officials for causing serious, mortal injuries to deceased.  The Commission also observed that the State Government was at liberty to initiate proceedings for the recovery of the sum of interim relief from the errant police officers.  The Commission was informed that the sanction for compensation was issued.

 COMMENT

The Commission observed that it was unfortunate that the stalling of the investigation and departmental action for more than five years were being justified on the ground of pendency of a private complaint filed by the brother of the deceased.  This was the result of a misreading, designedly or otherwise, of the law. The pendency of a private complaint did not tie the hands of the investigation.  The course to be adopted when there is a case ‘pending otherwise than on a police report’ before the court is expressly provided for by Section 210 of the Code of Criminal Procedure.  All that needs to be done is to bring the matter to the notice of the court where the private complaint is pending.  The court would stay further proceedings to enable the police to complete the investigation. Both cases would then be tried together. The pendency of the private case under which the police tried to take shelter for their inaction, was by itself no ground for inaction.

DEATH IN CUSTODY DUE TO POLICE NEGLIGENCE: UTTAR PRADESH

Case No.3583/24/97-98/CD

             The death of an undertrial prisoner, Rajan Singh, was intimated to the Commission by the Additional Inspector General of Prisons, Uttar Pradesh. According to the report received, Shri Rajan Singh had been detained in District Jail, Agra since 18 January 1995. On 20 September 1995, he tried to escape from a police truck while he was being taken to court along with 13 other under-trial prisoners. It was further reported that another under-trial prisoner, Sanjay Tiwari, who was also travelling in the same truck, jumped and escaped from custody.

             The post-mortem report stated that death had occurred due to shock and haemorrhage caused by ante-mortem injuries. The magisterial report stated that Rajan Singh had consumed liquor supplied by police personnel while in custody and had also picked up a fight with them under the influence of liquor. The report held the police personnel guilty of negligence for not having given adequate and satisfactory escort to the prisoner.

             The Commission was of the view that the theory of escape from custody was make believe. The injuries supposedly caused by jumping from a moving vehicle, particularly when there was no mention that he was prevented by anyone from jumping, could not have been so serious and extensive as to have caused death. Further, the magisterial inquiry indicating that Rajan Singh had been administered liquor while in custody pointed to the fact that he could have been subjected to beating while in the police vehicle.  The Commission concluded that the life of a young man had been cruelly ended owing to  torture and beating by police personnel.

             The Commission thus directed the State to pay immediate interim relief of Rs. 5 lakhs to the next of kin of the deceased. The Commission questioned as to whether the second under-trial prisoner, Sanjay Tiwari, had really escaped from custody or had been done to death and his body disposed of. It directed the Government to entrust the two cases to the State CBCID for in-depth investigation and action thereon. The Commission also recommended initiation of appropriate disciplinary action for major penalty against all those responsible for the two incidents and suitable action taken in accordance with the law.

SUICIDE IN POLICE LOCK-UP: KOLAR, KARNATAKA

Case No.12098/96-97/NHRC

             The Commission was informed by the Superintendent of Police of Kolar District of the death of one Thimmaiah in the Mulbagal Police Station. Thimmaiah had allegedly committed suicide with a nylon rope hung from a window bar in the toilet of the police station. The Commission also received a complaint from the People’s Union for Civil Liberties, Karnataka suspecting foul play in this case and requesting the Commission to have the matter investigated, bring the culprits to justice and compensation awarded to the next of kin of the victim.

                      Pursuant to the Commission’s directions, the Additional Chief Secretary, Karnataka sent a report along with copies of the post-mortem and inquest reports.  These were contradictory in nature and did not establish the fact that the victim had committed suicide. Considering the facts and circumstances as disclosed in the reports, the Commission was of the view that there was justification for a presumptive inference that the death of Thimmaiah, in the absence of a convincing explanation from those who had him in their power and custody, had been caused in custody by the police. In any event, the police who held sway over the person of Thimmaiah are guilty of not preventing the suicide, even if the remote theory of a suicide were at all held to be probable.

             Accordingly, the Commission directed the Government of Karnataka to register a case against the errant police officials and initiate departmental action against them. A case was also to be registered against the doctor who had conducted the post-mortem, on charges of destroying evidence. The Commission directed the investigation to be taken over by the Corps of Detectives of the Karnataka State and since there was a strong prima-facie case of violation of human rights, the Government of Karnataka was directed to pay an interim relief of Rs. 2 lakhs to the next of kin of the deceased. It would be at liberty to initiate proceedings for recovering the sum from those who, by their highhandedness, had exposed the Government to this liability.  The Commission has received a compliance report from the Government of Karnataka on the payment of compensation, disciplinary proceedings and prosecution.

COMMENT

             The liability of the State for damages for violation of the Constitutional rights to life, liberty and dignity of the individual has been recognised and established as a part of the public law regime.  In the decisions of the Apex Court, in particular, in the case of Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others (1981) 1 Supreme Court cases 608 and Nilabati Behera vs. State of Orissa (1993) 2 SCC 746 the constitutional and juristic foundations of this liability of the State have been formally and finally laid down.  Even the claim of sovereign immunity arising out of the State discharging sovereign functions is held to be no defence at all against the acts of violation of the constitutionally guaranteed fundamental human rights.

(B)        TORTURE

TORTURE BY KERALA POLICE WHICH LED TO DEATH OF HUSSAIN

Case No.64/11/1999-2000

             A.J. Antony, a resident of Wynad District, Kerala made a complaint to the Commission alleging that one Hussain, a labourer, was brutally beaten by the police on 19 February 1999 during a raid on a gambling place. According to the complaint, Hussain had explained to the police that he had gone there to collect money from one Khalid Mohammad and not to gamble. However, the police ignored his pleas and had beaten him so brutally that his spinal cord broke and he was paralysed from below the neck. Since his family was not wealthy, he was brought home after the initial treatment. The complainant requested the Commission to recommend action against the guilty police officials and to award a compensation of Rs.6 lakhs to the victim.

             The Commission immediately called for a report from the DGP Kerala. The report from the DGP stated that during a raid on a gambling den, one of the gamblers, Hussain, was beaten as a result of which he fell down. Shri Hussain made a statement that the police had beaten him and then gone away without providing him any medical treatment. On this basis, a case was registered at the Meppady Police Station. The report added that the victim had since been discharged from hospital and was undergoing treatment at his residence. A police constable had been placed under suspension and an oral inquiry had been ordered against him, as also the concerned Sub-Inspector.

             Subsequently, the Confederation of Human Rights Organisations  informed the Commission that Hussain had died on 26 November 1999 as a result of the brutal torture inflicted on him by the police.  The Confederation also sought action against the policemen for murder and for compensation of at least Rs.3 lakhs to the family of the deceased.

             The Commission took note of the report of the DGP Kerala and of the subsequent report of the Confederation of Human Right Organisations.  It observed that the Office of the DGP did not dispute the fact that the victim was beaten by the police. The Commission, accordingly, directed the State Government to institute criminal action against the concerned police officials for the murder of Hussain and also to expedite the departmental proceedings against them.  The Commission also recommended that a sum of Rs.2 lakhs be paid by the Government to the next of kin of Hussain as immediate interim compensation.  The Commission stated that the Government was at liberty to deduct this amount from the salary of the guilty police officials.  The Government of Kerala has sanctioned the payment of a sum of Rs. 2 lakhs to the next of kin of Hussain as compensation.  The Government has also ordered the Director General of Police to institute criminal action against the guilty officials for murder.

 TORTURE BY TIRUCHI POLICE RESULTING IN DEATH OF SHRI MOHAN, Case No.  4444/95-96/NHRC

             The Commission received a telegraphic complaint from Smt. Ayeeponnu stating that her husband was picked up by the police from their home on 3 September 1995, tortured at the police station and was thereafter remanded to judicial custody. While in remand, he was hospitalised in a serious condition and died. The Commission called for a report from DGP Tamil Nadu, Chennai. The DGP stated that Mohan was arrested for selling arrack and had been produced before the Judicial Magistrate the same day and remanded to judicial custody. En-route to jail, he fell down following an epileptic fit and sustained a head injury. He was subsequently hospitalised and died. He also stated that the widow denied having sent a complaint to the Commission.

             The matter was further investigated by the Commission through the State Legal Aid and Advice Board, Chennai and an opinion was also sought from the doctor who had performed the autopsy. While the doctor stated that the deceased appeared to have died of shock and haemorrhage due to a head injury, the Legal Aid and Advice Board also reported that the widow denied having sent a complaint. The Commission examined the facts and circumstances and concluded that the telegram itself was a very telling one and it was obvious that the widow, being an illiterate person, wished to avoid a confrontation with the police and therefore, denied having sent the telegram. The post-mortem report also indicated that the injuries could not have been caused by a mere fall to the ground due to an epileptic fit. The deceased also did not have a history of epilepsy.

             Based on the facts and clinical evidence available,  the Commission came to the conclusion that the death was, indeed, due to head injuries inflicted by the police. The Commission accordingly recommended that in order to compensate for the loss of the precious life of the young man, the Government of Tamil Nadu should pay immediate interim relief in the amount of Rs.2 lakhs to his wife Smt. Ayepponnu within two months of the order. The District Collector was also directed to arrange a house for the widow with Rs.50,000/- and give her a sum of Rs.10,000/- for furniture, and arrange to deposit of the balance amount in her name in a nationalised bank. The State Government was also directed to entrust the matter to the CBI for further investigation, to charge-sheet the persons responsible for the death and to take the case to its logical conclusion. The State Government was further asked to submit compliance reports periodically. The State Government has since sanctioned the amount of compensation recommended by the Commission.

ALLEGATIONS OF DEATH, RAPE AND TORTURE OF TRIBALS AS A RESULT OF ACTIONS OF THE JOINT TASK FORCE SET UP BY THE GOVERNMENTS OF TAMIL NADU AND KARNATAKA TO APPREHEND VEERAPPAN AND ASSOCIATES                                                                                                                                                 

Case No. 222/10/97-98, Case No. 534/22/97-98, Case No. 795/22/97-98, Case No. 249/10/97-98, Case No.79/10/99-2000

 1.         Since mid-1997, the Commission had received a number of communications, both from individuals and from non-governmental organisations, concerning the activities of the sandalwood smuggler, Veerappan, and the efforts of the Joint Special Task Force (JSTF) of the States of Tamil Nadu and Karnataka to apprehend him.  A constant theme in the communications has been harassment caused to the villagers and tribals in the area of operation of the JSTF and the violation of their human rights.

 2.         Brief Summary of the Complaints received:

            The Commission received complaints from Smt. Govindamma, Shri A.Mahaboob Batcha, Managing Trustee of the Society for Community Organisation Trust who transmitted a letter from Justice Shri V.R.Krishna Iyer, former Judge of the Supreme Court, Shri V.P.Gunasekharan, State General Secretary of the Tamil Nadu Tribal Peoples Association, Dr. S.Ramadoss, alongwith 3 Members of Parliament and 2 Members of the Legislative Assembly of Tamil Nadu and Dr. D.M.Chandrashekhar, a retired Chief Justice of Karnataka High Court. Their allegations include killing, rape, molestation, torture, harassment, false implication under TADA and detention for long periods under TADA without trial of tribals and innocent hill people by the personnel of Joint Task Force.

 Actions taken by the Commission

 3.         The action taken by the Commission in response to the communications received is summarized below:

i)                                             On receipt of the complaint from Smt. Govindamma, the Commission, on 26 May 1998, directed its Director-General (Investigation) to collect the facts.  Upon the State Government being contacted, the office of the Commandant of the Task Force, in a response dated 17 June 1999, indicated that the husband of the complainant was arrested by the Task Force on 25 April 1993 as there was sufficient evidence of his deep involvement with the activities of Veerappan and his gang.  He had been produced before the designated court in Mysore and was not innocent, as claimed by the complainant.  While denying any use of third degree methods, the Task Force report stated that, on production before the TADA court, the complainant's husband had not complained of any ill-treatment by police.

Following an analysis of the report, and in the light of the directions of the Hon'ble Supreme Court, the DG (Investigation) recommended that the case of the complainant's husband may be taken up by the Review Committee as he had been categorized as a B class prisoner and had been in jail continuously for more than 5 years.

The Commission also requested Shri Sankar Sen, Special Rapporteur, to offer his comments in the matter.  He opined that the Commission may direct the State Government to place the case of the complainant's husband before the Review Committee for careful scrutiny and consideration, as there were  strong reasons for considering the release of the husband of the complainant on bail.

After considering the communication received from Shri A.M. Batcha and, in particular, the letter that it enclosed from Justice V.R.Krishna Iyer, the Commission, in its Proceedings of 6 March 1998, recalled its various efforts in respect of petitions received in regard to Veerappan and concluded that the Governments concerned must have regard for the safety of innocent persons affected by the situation and that it must ensure that their lives are not endangered or their dignity and worth as human beings violated or jeopardized.

                                               The Commission has consistently taken the position that, in enforcing the law, the apparatus of State must, itself, act in ways that are fully in conformity with the law. It has therefore pronounced itself repeatedly and clearly on acts such as 'fake encounters' which are contrary to the law and therefore, in its view, unacceptable.  It has also, in this connection, laid down specific procedures that should be followed to enquire into and bring to book those who are involved in such acts.  Its proceedings and directives, in this connection, are a matter of public record and have been transmitted to all State Governments for their observance.  They would be applicable to the present case, as to any other.

                                               Likewise, the Commission has consistently taken the view that when acts of public servants, including those of the security forces, have resulted in the violation of the human rights of innocent citizens of the country, and not least of its most vulnerable sections, these acts must be scrupulously enquired into; further, when the results of enquiry so require, it must be ensured that appropriate compensation or other remedies are provided.

 ii)          On 12 September 1998, however, Shri A.M. Batcha again complained that the State Governments concerned had not taken any action on the aforesaid directions of the Commission.

iii)                  The Commission, accordingly, directed the complainant to provide specific particulars in respect of the affected tribal population in order to enable it to take up the matter with the authorities.  Pursuant to this direction, the Tamil Nadu Tribal Peoples' Association on 30 November 1998 submitted a number of affidavits from men and women who stated that they had been adversely affected.  The Commission, thereafter, in its Proceedings of 21 January 1999, directed its DG (Investigation) to discuss the matter further with the complainant.

iv)         Following discussions with Shri Batcha, the DG (Investigation) submitted a report to the Commission dated 16 February 1999.  It drew attention to various grievances and sufferings of the people of the area and also to the fact that innocent people were missing from the camps.  The report referred to the detention of 49 persons, including 12 women, without any trial having taken place for over 5½ years. The Director-General(Investigation) was told that there had reportedly been no review by the Karnataka Government of the detention of the TADA detenues; the human rights courts constituted by the Tamil Nadu Government had not started functioning and the petitions submitted to the Tamil Nadu Human Rights Commission had not been entertained as the issues raised involved more than one State.  The tribals, who were victims of atrocities, lived in remote areas, without even basic needs; they were reportedly unable to file complaints individually.  Suggestions were made during the discussions concerning the need to hold public hearings by the Commission, in one or two places each in Karnataka and Tamil Nadu, as well as a public inquiry at Thalavadi Hill or Satya Mangalam by human rights activists and retired Judges.

 v)          The Commission considered the note of the DG (Investigation) during its Proceedings on 8 March 1999 and observed that the substance of the representation of Shri Batcha and the Tamil Nadu Tribal Peoples' Association was that the Commission should cause a meaningful and effective intervention which may culminate in the voluntary surrender of Veerappan, thus putting an end to the suffering of the local citizens, the periodic loss of lives and bloodshed, and the highly disturbed and insecure conditions in the area.  The killings and retaliatory actions that an operation of this nature involved, could not, in the view of the Commission, be a regular and ongoing feature for decades.  It was further noted, inter alia, that the Commission could not decide on an important and sensitive issue such as this without expert advice.  It was therefore observed that it would be advantageous if the opinion of a Committee of professional experts, with wide experience, could be had both on the advisability of the Commission's intervention, and also on the nature of the intervention, if it is held advisable and in the larger public interest.

vi)         The Commission also examined certain important data furnished by the DG (Investigation), upon its request, on the nature of operations conducted thus far against Veerappan and the costs involved in human and material terms.  It thereafter held detailed discussions with the Chief Secretary and Director General of Police of Tamil Nadu and with the Principal Secretary (Home) and Director General of Police, Karnataka, in a meeting that it held in New Delhi on 13 April 1999.  A decision was then taken to forward the various complaints received by the Commission to the respective State Governments for appropriate action.

 vii)        As regards the complaint received from Shri V.P. Gunasekharan alleging the committing of atrocities on  villagers by the JSTF of Tamil Nadu and Karnataka, the DGP Karnataka, in a report dated 9 October 1998 stated that Veerappan and his gang were involved in 135 cases of murder, dacoity, kidnapping for ransom, extortion and other such serious crimes.  While 59 cases had been registered in Karnataka, 76 cases had been registered in Tamil Nadu.  While furnishing details of the important cases brought against Veerappan, the police denied any ill-treatment to those persons who had been arrested under TADA.  They added that no complaint of ill-treatment had been made by any person before the Designated Court on their production before the court.  The police report further denied the arrest of many of the persons named in the complaint, as well as the allegation that the villagers had abandoned their homes for fear of the police.      

viii)               In their comment dated 30 November 1998 on the police report, the Tamil Nadu Tribal People Organisation, through its General Secretary Shri V.P.Gunasekharan, reiterated that tribals and innocent hill people had been subjected to inhuman atrocities, ill-treatment, and various forms of torture.  Allegations were also repeated of maiming, confinement in dark rooms, of being chained without food for a number of days, of the molesting and rape of women in the camps.  A number of specific incidents were mentioned of tribals who were allegedly subjected to serious mistreatment in the camps.  The Tamil Nadu Tribal Peoples' Association reiterated that directions of the Supreme Court had been violated.  The Review Committee to look into TADA cases had not been formed and innocent people remained without trial for a number of years.  The request was therefore made for an independent and fair inquiry, conducted by a Retired High Court or Supreme Court Judge, so that those who had been affected could come forward to depose in person.

 ix)                 In the light of the various allegations made regarding the situation of persons held in the Central Jail, Mysore, the Commission requested its Special Rapporteur, Shri Chaman Lal, to visit that jail.  He did so on 25 March 1999 and reported that a total of 127 persons had been detained under TADA by the Karnataka Police during the years 1993-97.  Seventy four persons had been released on bail and 3 had expired, leaving 51 still under detention.  Of these 51 detenus, 34 (including 3 women) had been in prison since 1993, 4 since 1994, 11 (including 8 women) since 1995, 2 (including 1 woman) since 1997.  Trial in respect of these 51 TADA detenues had not yet commenced, because the place of trial, reportedly for security reasons, could not be agreed upon.  Shri Chaman Lal further indicated that none of the detenues had availed of any parole since their incarceration.  The Special Rapporteur, therefore, observed that the essential relief that the Commission should recommend, should be by way of immediate commencement of the trials since there could be no legal justification for continuing to keep these persons in custody without trial.

x)         The Commission also received a number of communications during the period under review from Shri Henri Tiphane on behalf of the ‘Campaign for release and rehabilitation of TADA detenues from M.M. Hills (in Karnataka and Tamil Nadu) undergoing detention in Mysore Central Jail’.  He sought the Commission’s intervention under Section 12(b) of the Protection of Human Rights Act, 1993 by taking up the matter before the Supreme Court of India.

 4.         In its proceedings of 18 June 1999, the Commission expressed serious concern that the effort to apprehend Veerappan continued to result in frequent complaints that innocent villagers and tribals, living in the area of operation of the Joint Special Task Force constituted by the State Governments of Tamil Nadu and Karnataka, were subjected to serious violations of their human rights.  The allegations of mistreatment of the villagers and tribals were serious, as were the facts relating the languishing in jail of 51 detenues under TADA, who still await the start of their trials, though 34 of them have been there since 1993. The Commission also expressed its dismay at the continued detention without trial, for a considerable period of time, of the persons held under TADA in the Mysore Central Jail.  It urged that the reasons for this delay, which reportedly relate to the venue of the trial and related security considerations, be resolved expeditiously.  The Commission underlined the great importance that the Hon'ble Supreme Court itself attaches to expeditious trial and to the vital relevance of such trial to a proper respect for human rights of those concerned.

 5.         Having regard to the circumstances, the Commission felt the need for the Constitution of a panel of two eminent persons, one drawn from the judiciary and the other having experience at the highest levels of the police, to look into all relevant aspects of the allegations. In its proceedings of 28 June 1999, the Commisssion requested Justice Shri A.J. Sadashiva, former Judge of the High Court of Karnataka (presently the Executive Chairman, Karnataka Legal Services Authority) to be the Chairman of the Panel.  The Commission also requested  Shri C.V. Narsimhan, former Director, CBI, to be a member of the Panel.  The State Governments of Karnataka and Tamil Nadu were requested to extend necessary cooperation and assistance to the Panel,  which commenced its work.

 6.                   A Writ Petition was, however, filed before the High Court of Karnataka challenging the jurisdiction of the Panel. On 27 March 2000, the High Court passed an interim order staying further proceedings of the Panel.

 7.         The Commission intends to pursue this matter further.

ILLEGAL ARREST, UNLAWFUL CUSTODY AND DEATH OF A YOUNG PERSON: MADHYA PRADESH

Case No. 1432/12/97-98/NHRC

             The Commission was seized of the death of an under-trial prisoner Ram Bhajan Gupta in the Central Jail of Bhopal through a report sent to the Commission by the Additional  District Magistrate of Bhopal.

             Pursuant to the Commission’s directions, the Government of Madhya Pradesh sent the magisterial inquiry report along with the post-mortem and other reports to the Commission. On perusal of the reports, the Commission noted that there was a dispute between police personnel and the victim’s father over the payment of money for tea from the latter’s teashop. Shri Gupta, who had apparently protested over the non-payment, had been arrested along with his father by the police on a series of charges under the IPC without any basis. He was produced before the magistrate who had made a remand order and the deceased had been remanded to judicial custody. He had, however, been brutally roughed up while in police custody and the jail authorities failed to provide prompt medical treatment with the result that the young man had died.

             The Commission noted that Shri Ram Bhajan Gupta had been accused under Section 294 of the Indian Penal Code (IPC) which deals with obscene acts and songs. He had also been charged with preventing a public servant from discharging his duty, criminal assault and criminal intimidation of a public servant. The Commission was distressed to know that a barrage of penal sections was presented before the magistrate, while the public servants i.e. the police were infact not discharging any duty or public service but only resisting a legitimate claim of a citizen for the payment of eatables that they had consumed. The conduct of the jail doctor was also callous and roused strong doubts of collusion. The Commission was convinced that the false arrest and prosecution of the deceased by the police had prevented him from exercising his human and fundamental rights to have access to proper medical treatment, which had resulted in his death. The Commission was thus of the view that the brutal treatment and harassment by the police, and the negligence of the prison authorities and the doctor, had been the causes for the death, which could otherwise have been prevented.

             The Commission thus directed the Government of Madhya Pradesh to pay an immediate interim relief of Rs.2 lakhs to the next of kin of the deceased and to initiate appropriate criminal and departmental action against all the delinquent police officials, jail staff and medical staff responsible for the untimely death of a man in the prime of his youth. 

CUSTODIAL TORTURE OF RAKESH KUMAR VIJ : UTTAR PRADESH

Case No. 12982/ 96-97

            The Commission had received a complaint from one Raj Kumar Vij of Varanasi alleging that his son, Rakesh Kumar Vij had been subjected to severe physical torture by the Uttar Pradesh (UP) Police. This had necessitated the hospitalisation of Rakesh in order to save his life. The complainant alleged that the police had illegally detained his son in connection with a murder investigation. It was mentioned in the petition that the victim was ill-treated and tortured and that electric shocks had been administered to him by making him urinate on a live electric coil - in order to elicit information about the murder. He was also not allowed to meet any family member. The torture had totally incapacitated the victim.

             The Commission subsequently received a number of petitions from various non-governmental organisations and social activists regarding this case. Taking cognizance of the matter, the Commission issued notice to the Director General of Police, UP. The report received from the Senior Superintendent of Police, Varanasi stated that the victim had sustained injuries as a result of a fall while trying to run away from police custody. It also mentioned that Shri Rakesh Vij had a criminal record. The petitioner, when asked to respond, refuted the police version. The Commission then directed its own Investigation Division to inquire into the incident. The report of the Investigation Team affirmed illegal detention and severe torture of the victim. The inquiry by the State CBCID, initiated by the UP Government, substantiated the Investigation Team's report.

             The Commission also asked the UP Government to constitute a Medical Board to assess the extent of physical disability suffered by the victim. The Medical Board, gave a report to the Commission, stating that the victim did not suffer from any gross structural damage, and that most of his complaints were subjective.  The report also stated that the patient had made a good recovery and that all his medical test results were within normal limits. The complainant, however, in a communication to the Commission, expressed his doubts about the impartiality and trustworthiness of the medical report. He requested the Commission to assess the authenticity of the medical report.

             In view of grave apprehensions of miscarriage of justice, the Commission got the victim examined by the Delhi Trauma and Rehabilitation Centre, which gave an entirely different assessment. Due to the discrepancies between the two medical reports, the Commission then directed that Shri Rakesh Vij be referred to the All India Institute of Medical Sciences (AIIMS) for reassessment of his health status. The Commission also directed the State Government to bear all the medical and travelling expenses of the victim.

             According to the report from AIIMS, the victim's spinal cord was compressed leading to deterioration of power in his lower limbs and in his neurological functioning in lower limbs, sensory loss of bladder and bowel movement.

             There were 60 to 80 per cent chances for improvement, but only if the victim undertook high-risk surgery. He was suffering from hearing loss and some of his teeth were missing. He was suffering from severe Post-Traumatic Stress Disorder with no proven treatment.

             The Commission was thus convinced that police officials had perpetrated custodial violence, brutal or savage in nature, on Shri Rakesh Vij. The Commission was also of the opinion that because of this torture, the victim had suffered trauma and stress and had been rendered incapable of living normally for the rest of his life. This was a case of a gross violation of human rights of a citizen resulting from barbaric acts of torture perpetrated on him. The State was, therefore, liable to compensate Shri Rakesh Vij for the damages suffered by him.

             The Commission thus directed the UP Government to pay Shri Rakesh Vij Rs.10 lakhs by way  of  immediate  interim  relief.    It  was  also  directed  to  arrange  for  the  complete medical treatment  of  Shri Vij  at  AIIMS, New Delhi  or  PGI, Lucknow,  as  Shri  Vij  preferred. The expenses of the treatment as well as the travelling expenses of Shri Vij, along with one attendant, from his native place to the place of medical treatment, would also be borne by the State Government.

             The Commission also directed the prosecution of the police officers found responsible for perpetrating various acts of torture on Shri Vij. As recommended by the State CBCID, disciplinary action is to be taken against five police personnel, including the Senior Superintendent of Police and a Superintendent of Police, Varanasi. The Commission has also issued notice to the concerned doctors from Varanasi asking them as to why recommendations should not be made to the State Government of UP to initiate appropriate disciplinary action against them for giving an incorrect report/findings about the status of health and extent of physical disability and incapability suffered by Shri Rakesh Vij.

             The Government of Uttar Pradesh reported to the Commission its acceptance of the Commission's recommendations with regard to the prosecution of errant police officials as also in respect of payment of compensation to the victim.  

 COMMENT

             Under Section 13(1) of the Protection of Human Rights Act, 1993, the Commission shall, while inquiring into complaints under this Act, have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908. Section 13(2) further provides that the Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code.

             Section 15 of the Protection of Human Rights Act, 1993 protects those who give evidence before the Commission. It also provides for prosecution of those who give false evidence. Medical personnel have a crucial role in unearthing vital evidence in cases of allegations of torture and custodial violence. They have a duty to ensure that an accurate description of the victim’s injuries is provided to the Commission. In this case, the Medical Board constituted by the Government of Uttar Pradesh gave a misleading report to the Commission on the extent of injuries suffered by Shri Rakesh Kumar Vij. The Commission, however, got a further assessment made by the Delhi Trauma and Rehabilitation Centre and then by the All India Institute of Medical Sciences (AIIMS). The Commission, using the powers conferred on it by its Statute, recommended the initiation of appropriate action against those who tried to mislead the Commission.  Article 10(1) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates that each State Party shall ensure that education and information regarding the Prohibition against Torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.  Article 10(2) further requires each State Party to include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.  In other words, medical personnel not only have a role in the prevention of Torture but are duty bound to do so.

FALSE IMPLICATION AND TORTURE OF SHRI RAJIV RATTAN BY THE POLICE

Case No. 9302/95-96

             Shri Rajiv Rattan, a clerk-cum-cashier at the Sahauran Branch of Shivalik Kshetriya Gramin Bank, Hoshiarpur, Punjab made a complaint to the Commission that he was falsely implicated, illegally detained for 13 days and was tortured by the police in a theft case that had taken place in the Bank. The Commission, being unsatisfied with the report of the State Government that the police had neither illegally detained him for 13 days nor had tortured him, directed its Director General (Investigation) to take up a field investigation and submit a report. The NHRC Investigation Team, after considering the statements of independent witnesses, bank correspondence, medical papers and opinion given by the doctors at PGI Chandigarh concluded that the police had tortured the complainant on account of which he sustained the fracture of the neck of the femur bone of his leg.

             The Commission expressed its distress at the brutality perpetrated at the police station and the lawless behaviour of those who are duty-bound to maintain law and order and uphold the rule of law, and also took a serious view of the attempt of the Punjab police to cover up its wrongful actions. The Commission held that the police perpetrated brutalities on the complainant causing a fracture of the neck of the femur bone for which he will have to undergo periodic operations after every eight to ten years. While holding that the police of the Ropar Police Station has disabled Shri Rajiv Rattan permanently by its brutal action, the Commission awarded him an immediate interim compensation of Rs.2.5 lakhs and also ordered an in-depth inquiry and initiation of criminal proceedings against the delinquent police officials for falsely implicating and illegally detaining him for 13 days causing him grave physical injuries.  The Commission has received a compliance report with regard to the payment of compensation.

DEATH OF DINESH CHANDRA MISRA OWING TO TORTURE AND BEATING GIVEN BY POLICE

Case No.9071/96-97/NHRC

             The Commission was informed by the Superintendent of the District Jail, Faizabad, Uttar Pradesh that one Dinesh Chandra Misra, an under-trial prisoner aged 25 years, had died in the Jail Hospital while under medical treatment. The Commission considered the report of the IG(Prisons), denying allegations of illegal confinement and torture and also the post-mortem report. Having considered the facts and circumstances surrounding the death of the under-trial prisoner in custody, the Commission was prima-facie of the view that the deceased was wrongfully confined in the police station and was not produced before a Magistrate within 24 hours. It further held that the death was probably the result of, or at least precipitated by, custodial violence which could be presumed in the circumstances of the case. As there was a prima-facie case of torture and unlawful confinement, the Commission ordered the payment of immediate interim relief of Rs.50,000/- to the dependents of the deceased and also the initiation of appropriate departmental action against the errant police officials for inflicting torture on the person of the deceased and for wrongful confinement. 

Comment

 Custodial violence is an unacceptable abuse of power and a serious violation of human rights by those whose duty it is to protect the law.  It violates Article 21 of the Constitution of India which guarantees the fundamental right to life and liberty.  Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR), also assert that every person has the right to life, liberty and security and no one shall be arbitrarily deprived of life.  Further, Article 5 of the Universal Declaration and Article 7 of the Covenant on Civil and Political Rights lay down explicitly that no one shall be subjected to torture, or cruel, inhuman or degrading treatment or punishment.

(C)        FAKE ENCOUNTERS

 KILLING OF FOUR PERSONS IN A FAKE ENCOUNTER BY POLICE :  UTTAR PRADESH.

Case No. 12235/24/98-99

            Shri Panna Lal Yadav, a resident of Village Daulatiya, District Varanasi, Uttar Pradesh, first by means of a telegram dated 19 October 1998 then through a longer complaint, alleged that his son Om Prakash and three others had been killed by the police in a fake encounter on 17 October 1998.

             The SP, Sant Ravi Das Nagar, through a communication dated 18 October 1998 also informed the Commission that four criminals had been killed in an encounter with the police in the area of Police Station,  Bhadoi on 17 October 1998.  It was reported that secret information had been received by the Police that, on 17 October 1998,  one Dhanjay Singh, a dreaded criminal carrying a reward of Rs. 50,000/- on his head, would commit a dacoity at the petrol pump of one Satyanarayan Harsh on the Mirzapur-Bhadoi Road.  Accordingly, Shri Akhilanand Misra, Circle Officer, Bhadoi constituted three teams to track down the criminals and proceeded to the spot.  At about 11.30 am, the police found four persons coming towards the petrol pump who, on seeing the police party, ran away and took shelter in the nearby bushes. They indiscriminately started firing at the police party who returned fire.  After 15 minutes of firing,  the police party at the site found four dead bodies, including one of the dreaded criminal, Dhanjay Singh, the son of the complainant.

             The Commission found the police version unconvincing and therefore, ordered its own Investigation Wing to look into the matter.  Accordingly, a team headed by a Deputy Superintendent of Police conducted an inquiry.  That report indicated that the alleged encounter was a fake one. The SP, Sant Ravidas Nagar also stated that a magisterial enquiry had been ordered into the matter by the District Magistrate and the State Government had ordered the Crime Branch Central Investigation Department (CBCID) to conduct an inquiry.

             On the basis of the enquiry of the CBCID, a case was subsequently registered against 36 persons including 34 police officials.  The CBCID inquiry, on the basis of evidence, opined that the encounter on 17 October 1998 was a fake one and that, in fact, four innocent persons had been taken out by the police from a nearby hotel and later brutally killed.

             The Commission ordered, by way of immediate interim relief, the payment of compensation of Rs. 4,00,000 each to the next of kin/families of each of the victims, namely, Shri Om Prakash alias Munna Yadav, Ajay Kumar Singh, Krisan Harijan and Shamim Natte.  The Commission ordered that, in each instance, Rs. 50,000/- should  be  paid  in  cash  and  the remaining  amount  of  Rs. 3,50,000/- should be put in a fixed deposit for five years in the name of next of kin of the victim in a Nationalised Bank, the interest on which should be paid at quarterly intervals to the next of kin.  The Commission also recommended to the Government of UP that the CBCID enquiry should be completed expeditiously and a chargesheet filed in the competent court of law for the prosecution of the accused persons.  The Commission has received a  report from the Government of Uttar Pradesh stating that of Rs. 4,00,000/- recommended by the Commission, Rs. 2,00,000/- has been paid to each of the families of four victims.

             The Commission has since been informed by the Government of Uttar Pradesh that the State CID has finalised its enquiry and has sought the State Government's approval for the prosecution of 34 police officials involved in the case.  In addition, departmental action is also being taken against 42 police personnel found guilty of various acts of commission and omission in the matter. 

 COMMENT

            The law in India recognizes the right of a citizen to private defence and in the course of such private defence even the causing of death can be justifiable in some circumstances. The same right of self-defence is available to a policeman. In addition, the use of force if it results in causing of death in the course of an attempt to arrest a person accused of an offence punishable with death or imprisonment for life, can also be justifiable under law. However, if a death is caused in an ecounter that cannot be justified on the ground of a legitimate exercise of the right to private defence, or in proper exercise of the power of arrest under Section 46 of Criminal Procedure Code, the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in the encounter in a particular case is justified will therefore depend upon the facts established after a proper investigation.

             Deeply concerned by complaints of fake encounters, the Commission laid down the procedure to be followed in all cases of encounters in its directions on complaint No.234 (1 to 6)/93-94 brought before the Commission by the Andhra Pradesh Civil Liberties Committee. That procedure, which was spelt out in a letter dated 29 March 1997 from the then Chairperson of the Commission to the Chief Ministers of all the States and Union Territories commended the following steps:

 “A.        When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.

 B.               The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.

C.               As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the State CID.

D.               Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.”

(D)        POLICE HARASSMENT

 ILLEGAL DETENTION: UTTAR PRADESH Case No.15016/24/98-99

             The Commission was seized of a complaint from Ms. Kamini Sharma of Mathura, Uttar Pradesh alleging that her father and one of her brothers had been illegally arrested and detained in custody for a day. These arrests had been made to ascertain the whereabouts of her brother Kapil who was a suspect in a murder case.

             The Commission called for a report in this matter from the SSP Mathura. The report stated that the three had been called to the police station but had been let off after a brief interrogation. There had been no illegal detention.

             Finding the report unconvincing, the Commission directed the matter to be investigated by its own Investigation Division. The report of the investigation team confirmed the truth of Ms. Kamini Sharma’s complaint. It was prima-facie established that the arrests and detentions had been illegal and the conclusion was inescapable that they had been detained to put pressure on Kapil Sharma to surrender. The course of action adopted by the police was found to be wholly unjustifiable by the Commission. It could not be backed by any authority of law.

             The Commission thus directed the Uttar Pradesh Government to get a case of illegal arrest/detention registered against the delinquent police officials and initiate appropriate disciplinary proceedings against the SSP, Mathura for his incorrect report and lack of concern for the human rights of the citizenry of the country. The Commission also directed the payment of Rs.10,000/- to each of the victims by way of immediate interim relief.

 HIGH-HANDED ACTS OF POLICE: UTTAR PRADESH (Case No.1970/94-95/NHRC)

             Shri Brijendra Singh in a complaint to the Commission alleged that on 9 April 1994, certain police officials came to his house, destroyed his household articles as well as those of his family members and caused a loss of Rs.2,00,000/- under the directions of the SHO.  Despite protest by the local population, the doors and windows of his house were extensively damaged. The police allegedly also took away Rs.18,400/- in cash and 500 gms. of gold. The complainant supported his allegations by photographs showing the extent of damage done to his properties.

             In response to the notice issued by the Commission, the Government of Uttar Pradesh submitted a report stating that in a pending case against the complainant, the police had gone to his home or a number of occasions to apprehend him. Unable to succeed in their effort, a coercive process in the form of an attachment proceeding was obtained from the court. During the course of attachment, the State Government admitted that some police officials had committed irregularities for which censure had been recorded in their personal files and disciplinary action had also been taken against the Inspectors and subordinate police officers.

             Upon consideration of the report, the Commission noted that though irregularities were admitted in the report, the State Government did not mention clearly whether the guilty police officials were being prosecuted. The report was also silent regarding the allegation of destruction of property worth Rs.2,00,000/- by the police and the taking away of Rs.18,400/- in cash and 500 gms. of gold. The Commission found the report very sketchy as it did not respond to all the allegations. The Commission, therefore, rejected the report and called for a fresh report from the Chief Secretary, Government of Uttar Pradesh, requesting him to respond to all the allegations in the complaint and the observations made by it.

             In a subsequent report, the State Government of Uttar Pradesh stated that a Circle Officer and three Sub-Inspectors had been found guilty of committing irregularities during the attachment proceeding. A censure entry had been made in the confidential report of the Circle Officer and departmental proceedings had been initiated against three Sub-Inspectors involved in this case. The report denied the taking away of cash and ornaments and also causing damage to the properties of the complainant and his family members. It was reported that during the inquiry, no evidence was found to support the involvement of the policemen in criminal activities and they, therefore, had not been prosecuted.

             The Commission noted that the State Government in its report had admitted that during the course of executing the process of attachment, some “irregularities” committed by the police had come to light. The word “irregularities”, the Commission observed, was an apologetic euphemism for wanton destruction.  The Commission noted that in the successive reports of the State Government, the allegations made by the complainant about the ransacking of his house and the destruction of property have not been traversed and have been admitted without, however, mentioning the extent of the damage so caused. The Commission further noted that the photographs filed along with the complaint corroborate the allegation of damage to the property.

        Having regard to the facts and circumstances of the case, the Commission made the following observations and recommendations:

 1.                   The penalty imposed by giving a “censure” in the service book of the Circle Officer was disproportionate to the gravity of the offences on his part. The DGP, Uttar Pradesh was, therefore, requested to review the departmental proceedings and to initiate proceedings to enhance the punishment in a manner that was commensurate with the misconduct, taking into account the gravity of misconduct.

 2.                   As there was prima facie evidence to hold that the petitioner had suffered humiliation, harassment and mental torture at the hands of the Circle Officer and three Sub-Inspectors; sustained losses owing to irregularities, admittedly committed by the police officials in the presence of a Gazetted police officer while executing the process of attachment; and keeping in view the ransacking of articles, destruction of property as admitted by the State Government in its report, an interim relief of Rs.1,00,000/- be paid to the complainant Shri Bijendra Singh.

 The Commission further observed that the State Government was at liberty to initiate proceedings for the recovery of this sum from the errant officials as their highhandedness had exposed the Government to this liability. The Commission was informed by the State Government that interim relief of Rs. 1,00,000 was sanctioned by it.

HARASSMENT OF A SOCIAL WORKER BY POLICE: UTTAR PRADESH

(Case No.9646/96-97/NHRC)

             The Commission received a complaint from one Dr. Rajendra Prasad Pandey, a resident of Lucknow, Uttar Pradesh alleging that he was imprisoned for 24 hours by the local police on 27 December 1995 to please his opponents. The complainant was a social worker and was the Convenor of Hindu Chetna Samiti. The next day, the SHO handcuffed him and took him around the town in broad daylight. The complainant further alleged that though he had complained to the higher authorities, he did not get any justice. The incident had an adverse psychological effect on him and had reportedly been condemned by the intelligentsia of the town.

             In response to the Commission’s notice, the SSP Lucknow submitted a report stating that the concerned SHO was found guilty of handcuffing the complainant, who was a man of status and a social worker. An order was issued to punish that official under the relevant rules.

             Upon considering the report, the Commission took the view that the liberty and dignity of the complainant had been tarnished by the barbaric and disdainful acts of the concerned police official, who had misused his position and power. It also noted that the atrocities perpetrated on the complaint had affected his psychological balance. Having regard to the loss of dignity of the complainant in the eyes of the society when he had been handcuffed and taken round the city, and having regard to the loss of his liberty, the Commission directed the Government of Uttar Pradesh to pay a sum of Rs.2,00,000/- as immediate interim compensation to the complainant within three weeks and observed that the state was at liberty to recover the whole or part of it from the concerned official.

ILLEGAL DETENTION/ABDUCTION OF RAMA RAO BY ANDHRA POLICE

Case No.5828/95-96/NHRC

             Smt. T. Nagarathnam filed a complaint with the Commission alleging that the police abducted her husband T. Rama Rao from his house on the night of 12/13 November 1995 and that his whereabouts were not known. The Commission immediately called for a report from the State Police. The report received was however not found to be satisfactory and therefore, the Commission directed its own Investigation Team to look into the matter and submit a report.

             The NHRC Team upon investigation found that Shri Rama Rao was picked up in the presence of his wife on the night of 12/13 November due to his suspected involvement in an attempt to murder one Tejeshwar Rao, a local CPI leader, on 4 October 1995. He was initially taken to the town police station Srikakulam, from where he was moved to Luvaru Police Station and was tortured to extract a confession. However, when nothing could be established against him, he was produced before an Executive Magistrate on 14 November 1995 and released after he executed a personal bond of Rs.5,000/- Due to the torture that he underwent, Rama Rao’s first desire was to be free and he did not, therefore, lodge any complaint immediately. On 13 November, however, the Andhra Pradesh Civil Liberties Committee (APCLC) had submitted a memorandum to the Commission alleging that Rama Rao had been abducted and that his rights had been violated.  The police records, on the other hand, stated that he was arrested on 14 November and released on the same day after execution of a personal bond. From the investigation by the NHRC Team, it became clear that the police had manipulated the documents and records to cover their misdeeds. Since the police arrest of Rama Rao was both illegal and malafide, the Commission expressed deep distress at the manner in which the police violated the constitutional rights of Rama Rao, an innocent law abiding person, who was illegally confined and tortured. The Commission recommended that the Government of Andhra Pradesh pay Rs.25,000/- as immediate interim compensation to Rama Rao, that they initiate departmental proceedings against the police officials and take such other appropriate action against them as may be necessary.  The Commission has received a compliance report from the Government of Andhra Pradesh with regard to the payment of compensation.

 COMMENT

 Article 9 of the Universal Declaration of Human Rights as well as Article 9 of the International Covenant on Civil and Political Rights emphasise that no one shall  be subject to arbitrary arrest, detention or exile.  In the above case, there is a violation of the fundamental right guaranteed in Article 21 of the Constitution which stipulates that no one shall be deprived of his life or personal liberty except according to procedure established by law.

 Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty.  Nevertheless the Constitution of India as well as International human rights law recognize the power of the State to arrest any person as a part of its primary role of maintaining law and order.  The Constitution requires a just, fair and reasonable procedure established by law under which alone such deprivation of liberty is permissible.

 Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to “forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”.  In actual practice these requirements are observed more in the breach.

 Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article 22(2)] and the Cr. PC (Section 57) is also not adhered to strictly.

 A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention.  The Commission has, therefore, found it necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation. The Commission’s Guidelines regarding Arrest were sent to Chief Secretaries of all States/Union Territories on 22 November, 1999 with a request to translate these Guidelines into their respective regional languages and make them available to all police officers and in all police stations for compliance.

ALLEGED ILLEGAL DETENTION AND CUSTODIAL TORTURE OF SHRI INDER P. CHOUDHRIE IN HIMACHAL PRADESH: ADMINISTRATION OF LIE DETECTOR TEST

(Case No. 117/8/97-98)

             The Commission had received a petition dated 12 May 1997 from Shri Inder  P. Choudhrie, a resident of New Delhi. He alleged that he was arrested by the police in connection with a murder and thereafter subjected to various kinds of custodial torture for a period of 13 days in police custody in Shimla, where he had gone to attend the hearing of a civil suit. He added that he was illegally detained, tortured and subjected to `Lie Detector Test’ without his consent after giving him a certain intravenous drug.  He sought an enquiry into the case by the CBI. 

             As the complainant had also approached the High Court of Himachal Pradesh and later the Supreme Court without any success, the Commission declined to intervene in the matter.  Subsequent review petitions filed before the Commission by the petitioner were also dismissed.   However, while dismissing the last review petition vide its order dated 20 October 1999, the Commission had taken up the issue of the administration of the Lie Detector Test.

        As the Lie Detector Test, which was administered to an accused, was not regulated by ‘Law’, the Commission was of the view that some guidelines should be formulated for the purpose.  

 After a careful consideration of the matter, the Commission laid down the following guidelines relating to the administration of the Lie Detector Test::

§         No Lie Detector Test should be administered without the consent of the accused. Option should be given to the accused as to whether he wishes to avail the test.

§         If the accused volunteers for the tests, he should be given access to a lawyer. The police and the lawyer should explain the physical, emotional and legal implication of such a test to him.

§         The consent should be recorded before a Judicial Magistrate.

 §         During the hearing before the Magistrate, the accused should be duly represented by a lawyer.

§         At the hearing, the person should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the police.

§         The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of interrogation.

§         The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital) and conducted in the presence of a lawyer.

§         A full medical and factual narration of the manner of information received must be taken on record.

             These guidelines were circulated to the Chief Secretaries of States as well as Union Territories by the Commission through a letter dated 11 January 2000.

            COMMENT

The National Human Rights Commission has, from time to time, laid down guidelines to guide the various state and other public functionaries in the proper discharge of their duties.  These  guidelines ensure that while discharging their duties and responsibilities, these functionaries do not violate human rights.  These functionaries have a constitutional obligation to respect and promote fundamental rights and the Directive Principles of State Policy. The constitution has made fundamental rights justiciable.  The Supreme Court, while interpreting and enforcing fundamental rights has whenever possible, interpreted these rights in the light of the Directive Principles of State Policy.  The Supreme Court has also held (vide Visakha v. State  of Rajasthan, (1997) 6 SCC 241 and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, that any international convention not inconsistent with fundamental rights and in harmony with its spirit must be read into these provisions to enlarge their meaning and content in order to promote the object of the constitutional guarantee.  The state in its functioning at various levels, is therefore obliged to respect and preserve these basic human rights.  And the Supreme Court, has in several cases, laid down guidelines and directions for this purpose.  (vide a recital of such cases in Vineet Narain v. Union of India (1998) 1 SCC 226 at 265).

            Under Sec. 12 of the Protection of Human Rights Act 1993, the National Human Rights Commission is entitled, not merely to inquire into any violation of human rights or negligence  in the prevention of such violation, it has also wider statutory obligations for the promotion and protection of human rights, e.g. it has a statutory obligation to “review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.” [see Section 12(d)]. The Commission is also required to “review the factors including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures” [see Section 12(e)]; to “study treaties and other  international instruments of human rights and make recommendations for their effective implementation” [see Section 12 (f)]; and to undertake “such other functions as it may consider necessary for the promotion of human rights” [see Section12(j).  The National Human Rights Commission is, therefore required, from time to time, to lay down guidelines for the effective implementation by the State authorities or other public functionaries of the constitutional guarantees and international human rights norms as interpreted and applied under the judgments of the Supreme Court of India.  These further the objectives of protection and promotion of human rights of ordinary men and women in this country. 

            The guidelines for conducting the Polygraph Test which require prior injection of a drug are meant only to protect and prevent violation of the human rights of the person to be examined; his rights to this effect being guaranteed under Article 21 and Article 20(3) of the Constitution. The guidelines merely spell out in detail the protection available under these Constitutional provisions and have been formulated in the discharge of the functions entrusted upon the Commission by Clause (j) of Section 12 of the Act. The effect of conducting the Polygraph Test without the voluntary consent of the person is a serious violation of his human rights guaranteed under the Constitution. Moreover, these guidelines are in the form of recommendations and non-compliance with the same would result in the evidence recorded becoming inadmissible in a Court of Law and also violative of the provisions of the Constitution and the Statutes governing the field.

     Thus Guidelines help to establish the ‘best practices’ for law enforcing agencies to follow and have usually been accepted and acted upon by the concerned authorities.  In fact, the guidelines also help the concerned authority to ensure that the authority does not act in a manner that is unconstitutional or illegal and violative of human rights.

HUMAN RIGHTS VIOLATIONS: JAIL CUSTODY

 DEATH OF BIHARI BABU DUE TO NEGLIGENCE OF DOCTOR: MADHYA PRADESH

Case No.6096/96-97/NHRC

             The Commission received a complaint from Shri Ajay Jain of Bhopal, Madhya Pradesh referring to a news item in the MP Chronicle alleging that one Bihari Babu had died in the Morena Jail premises under mysterious circumstances. The death was attributed to the negligence of the doctor in-charge of the Jail.

             The reports received from the Deputy Secretary, Government of Madhya Pradesh indicated that Dr. R.S. Sharma was found guilty of dereliction of duty and a strong warning was given to him. The Commission considered the matter and held that a punishment limited to a warning to the doctor for dereliction of duty was grossly inadequate and recommended to the Chief Secretary, Madhya Pradesh, that disciplinary action be against the doctor and compensation in the amount of Rs.2 lakhs be paid to the next of kin of the deceased. 

DEATH OF JAGANNATH PAOJI INGULE, FAILURE ON THE PART OF THE MEDICAL OFFICER TO DIAGNOSE AT AN APPROPRIATE TIME: MAHARASHTRA

Case No. 16102/96-97/NHRC

             The undertrial prisoner, Jagannath Paoji Ingule, aged 44 years, was received in Nasik Road prison from Thane Central Prison on 7 May 1995. After nearly one-and-a-half years of under-trial custody, he complained of a swelling in the abdomen and general weakness. He was admitted in the Prison Hospital on the same day from where he was referred to the Civil Hospital for expert opinion. Later, he was again admitted in the Prison Hospital with amoebic dysentry and severe anaemia and was referred to the Civil Hospital, Nasik for further treatment. On 3 February 1997, he expired in the Civil Hospital, Nasik.

             The inquest report could not arrive at any conclusion on the cause of death. The post-mortem report revealed that the prisoner was suffering from an advanced stage of pulmonary and abdominal tuberculosis. The post-mortem report stated the probable cause of death as cardio-respiratory arrest due to ‘pulmonary tuberculosis and plural effusion’ and ‘abdominal tuberculosis and ascitis and anaemia.’

             The Commission considered it unfortunate that the disease was not diagnosed even though the under-trial prisoner was in custody for more than one-and-a-half years. He was being treated for amoebic dysentery while he was actually suffering from an advanced stage of tuberculosis – pulmonary as well as intestinal – a fact which was revealed in the post-mortem and which could have been diagnosed before the illness reached serious proportions. The Commission held that access to adequate, timely and proper medical diagnosis and treatment is an inherent right of prisoners whose freedom to seek and have access to medical aid outside of the prison and on their own is curtailed by law. It further observed that diagnosis and treatment of tuberculosis is not any more a sophisticated area of medicine. With the large-scale manifestation of this infectious ailment in the jails, any jail medical staff should reasonably be expected to know, or ought to know, what was the diagnosis of the case that had been admitted.

             While holding that there was negligence in the protection of the prisoner’s human right to life and that the dependants of the victim were entitled to immediate interim relief under Section 18(3) of the Protection of Human Rights Act, 1993, the Commission recommended that (i) an immediate interim relief of Rs.1 lakh to be paid by the State Government to the dependants of the deceased; and (ii) that the State Government should make a comprehensive appraisal for the control of the spread of tuberculosis and other infectious diseases in the prisons and to install, wherever lacking, adequate diagnostic facilities.  The Commission has received a compliance report with regard to the payment of Rs. 1 lakh as compensation.

 COMMENT

 In the case of Shri D.K. Basu vs. State of West Bengal (AIR 1997 SC 610), detailed instructions were given by the Supreme Court on the procedures to be followed by the police in cases of arrest or detention.  These instructions, inter-alia, include

 *           The arrestee should, when he so requests, be medically examined at the time of arrest and major and minor injuries, if any, as are present on his or her body, must be recorded in a memo.  The inspection memo should be signed both by the arrestee and by the police officer concerned, and a copy should be given to the arrestee.

 *           The arrestee should undergo a medical examination by a trained doctor every forty-eight hours of his detention in custody.

            The Supreme Court of India imparted a new dimension to the enforceability of these directions by attaching the sanction of commitment for contempt for breach or violation of these requirements.  Article 10(1) of the ICCPR requires the State party to ensure that all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person. Article 11 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates that each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any Territory under its jurisdiction, with a view to preventing any cases of Torture.

NEGLIGENCE OF PUBLIC AUTHORITIES

DEATH OF WITNESS IN POLICE STATION: GUJARAT

Case No.7820/96-97/NHRC

             The death of one Hasmukhbhai Kanubhai was reported to the Commission by the Section Officer of the Department of Home of the Gujarat Government. It was stated that he had died in the Mahuva Police Station, where he had been brought as a witness for interrogation. The report of the Sub-Divisional Magistrate stated that the deceased had been detained overnight in the police station.  The next day, he had complained of pain in the chest and symptoms of diarrhoea. As his condition started deteriorating, his relatives had sought medical help but the police officials on duty brushed aside their request saying that they were waiting for the Investigation Officer, who alone could take a decision in this regard. After a considerable delay, the deceased was taken in an autorickshaw to the hospital, where he was declared as brought dead. The Government, however, did not consider the death as one in police custody as the deceased was not an accused but a witness at the Police Station, brought in for interrogation, and had died on the way to the hospital.

             The Commission held this to be a case of gross negligence on the part of police officials in the police station as they had not provided timely medical assistance.  It also took the view that custodial death did not only mean the death of an accused person in custody; the term included witnesses taken into custody whose freedom of movement was curtailed by the police. The Commission felt that this was a case of ‘custodial ill treatment’ resulting in death. It thus directed the State Government of Gujarat to pay immediate interim relief in the amount of Rs.2 lakh to the dependants of the deceased, with liberty to initiate proceedings for recovery of this sum from those who, by their highhandedness, had exposed the State Government to this liability. It also called for the initiation of disciplinary action against the errant police officials for their negligence in not providing proper and timely medical facilities to the victim. The Commission has received intimation from the Government of Gujarat with regard to the sanction which was issued for payment of Rs. 2 lakhs as compensation.

NEGLIGENCE OF A MEDICAL OFFICER: UTTAR PRADESH

Case No.7122/24/98-99

             Smt. Ram Kumari in her complaint to the Commission stated that her late husband, Shri Krishan Kumar, died in a road accident when his truck collided with a tree and caught fire thereafter. The police prepared an inquest report and sent the burnt body of her husband for post-mortem to Rai Bareilly. A team of three doctors performed the autopsy of the dead body on 17 May 1998 but were unable to give an opinion on the cause and time of death and, therefore, sought the opinion of the State Medico-Legal Expert. The opinion was delayed by six months, as a result of which the complainant was made to rush from Allahabad to Rai Bareilly to plead with the authorities to hand over the remains of her husband’s dead body for performing the last rites. The complainant sought the Commission’s assistance in getting the dead body released early.

             In response to a notice issued by the Commission, the Special Secretary (Medical), Government of Uttar Pradesh, by his letter dated 28 December 1998 admitted the delay in the submission of papers to the Medico-Legal Expert. The Medico-Legal Expert examined the case and found radio opaque shadows of metallic density and referred the matter for examination to check for presence of gunpowder. However, these papers remained lying in the office for about three months. The report of the Medico-Legal Expert also indicated certain deficiencies in the inquest report, site-plan and photographs of the truck. After the report, the bodily remains of the deceased were re-examined on 13 January 1999 by the Chief Medical Officer, Rae Bareilly who did not find metallic particles as indicated in the report of the Medico-Legal Expert.

             A supplementary report was filed by the Special Secretary (Medical), Government of Uttar Pradesh stating that the remains of the deceased were handed over to the complainant on 15 February 1999. By a final report dated 19 April 1999, the Commission was informed that the Chief Medical Officer (CMO) Rae Bareilly was found negligent for not obtaining the Medico Legal Expert Report promptly. An adverse remark had also been noted in his confidential file.

From the reports, the Commission noted that the bodily remains of the deceased were handed over to the complainant nine months after the death; this had resulted in mental agony to her and forced her to rush to Rai Bareilly to contact the authorities. The Commission held that this avoidable delay was directly attributable to the gross negligence of the State authorities at different levels. In the circumstances, the Commission recommended the payment of interim compensation of Rs.10,000/- to the complainant by the Government of Uttar Pradesh within two months.  The State Government has since paid the compensation. 

DEATH OF AN INNOCENT PERSON OWING TO NEGLIGENCE OF STATE ELECTRICITY BOARD :  BIHAR

Case No. 2010/4/98-99

            The Commission received a complaint from Smt. Ranjana Singh alias Ranju, a resident of Daltonganj, Palamu, Bihar alleging that on 2 August 1996, her husband Satyabrat Narain Singh came in contact with a live electric wire lying in front of Morehouse, Patna as a result of which he was electrocuted and died.  She attributed the death of her husband to the negligence of the Bihar State Electricity Board (BSEB).  She also stated that BSEB had failed to award her any compensation though in a similar case the Supreme Court had awarded compensation.  The complainant stated that she was facing an acute financial crisis and was on the verge of starvation and was unable to meet the expenditure required for the education of her minor sons.  She sought an inquiry into the matter and award of suitable compensation to her.

             In response to the  notice, the Government of Bihar in its report stated that the late Satyabrat Narain Singh, husband of the complainant, died of electrocution at Rajinder Nagar, Patna for which a case dated 5 August 1996 was registered in Kadam Kuan Police Station, Patna. The report also brought out that the post-mortem on the body of the deceased was conducted at Patna Medical College and Hospital and that the cause of death was stated to be electrocution.  The report of the Secretary, BSEB confirmed that the L.T. line and live wire of the Transmission/Distribution line of the Bihar State Electricity Board was broken due to a heavy storm on 2 August 1996 and that Shri Satyabrat Narain Singh touched the live wire and died due to electrocution.  The report also stated that no compensation was paid to the wife of the deceased by the BSEB, as her husband died following a natural calamity. 

            The Commission noted that there was no material on record to show that the storm, which had allegedly led to the breaking of the live wire, was of such intensity or unprecedented severity in nature that the concerned authorities responsible for the installation and maintenance of the transmission/ distribution lines could not have foreseen a storm of the intensity that occurred.  On the contrary, all transmission/ distribution lines lying there, by their very hazardous nature, were expected to have been so installed as to withstand the vagaries of nature/ weather like rain, high velocity wind/storm, etc.  Even if it were assumed that the storm was in fact of such a high intensity as could have broken the live wire, the Commission observed that an imperative obligation was cast upon the concerned authorities to take immediate measures to switch off the power so as to prevent disastrous consequences. There was also nothing on record to show that adequate safeguards were taken by the BSEB to guard the live wire of the transmission/distribution line falling on the ground, even if it had broken down as a result of the alleged storm.  The authorities of the State Electricity Board had a duty to see that the live wire was removed immediately and/or that the power was switched off so as to make a public place safe.  The Commission thus noted that there was a clear breach of duty on the part of the State Electricity Board which had resulted in the death of Shri Satyabrat Narain Singh. The Commission was, therefore, of the opinion that the State and Electricity Board Authorities were liable to the victim for damages.

       The Commission accordingly recommended a compensation of Rs. 2,00,000 to the wife of the deceased by way of immediate interim relief, without prejudice or detriment to her right to claim damages under the civil law.  However, in case such a claim is put forth, the Commission said that the concerned adjudicatory authority might take into account the payment of the above interim relief to the complainant while awarding damages.  Further, the Bihar State Electricity Board was directed to constitute an inquiry into the matter and to frame adequate regulations/ guidelines to take appropriate and prompt measures to prevent the recurrence of such incidents involving human life.

             The compliance report with regard to the payment of compensation has been received in the Commission.

 COMMENT

            In Manohar Lal Sobha Ram Gupta vs. M.P. Electricity Board (1975 ACJ 494), the High Court held that it was negligence to omit to use all reasonable means to keep electricity from harming a person.  The standard of care required was held to be high owing to the inherently dangerous nature of electricity, and the burden of proving that there was no negligence was on the authorities.  The principle was reiterated in Angoori Devi vs. Municipal Corporation, Delhi (AIR 1998 Delhi 305) and in Padma Behari vs. Orissa State Electricity Board (AIR 1992 Orissa 68).

             The main plank of defence of the State Government and BSEB was that it was an Act of God (Vis major). The Commission was, however, of the considered view that the said defence was not available to them for the following reasons :

 (a)        Act of God (Vis major) is defined to be such a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted.

 (b)        Vis major, to afford a defence, must be the proximate cause, the causa  causans, and not merely a causa quanon of the damage complained of.  The mere fact that vis major co-existed with or followed on the negligence is not an adequate defence.  Before an Act of God may be admitted as an excuse, the defendant must himself have done all that he was bound to do.

             A more stringent rule of strict liability than the rule in Rylands vs. Fletcher was laid down by the Supreme Court recently in the case of M.C. Mehta vs. Union of India.  The case related to the harm caused by escape of Oleum gas from one of the units of Shriram Foods and Fertilizer Industries. The Court held that the rule of Rylands vs. Fletcher which was evolved in the 19th century did not fully meet the needs of a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries were necessary to be carried on as part of the development programme and that it was necessary to lay down a new rule to adequately deal with problems arising in an industrialised economy.  The Court laid down the rule as follows: Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an incident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands vs. Fletcher.  The Court earlier pointed out that this duty is 'absolute and non-delegable' and the enterprise cannot escape liability by showing that it had taken all reasonable care and there was no negligence on its part.  The bases of the new rule as indicated by the Supreme Court are two: (1) If an enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any incident (including indemnification of all those who suffer harm in the accident) arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads; and (2) the enterprise alone has the resources to discover and guard against hazardous or dangers and to provide warning against potential hazards. (AIR 1987 SC 965).

CASE OF SHRI DEVI SHANKER GUNNED DOWN BY A FOREST OFFICER: RAJASTHAN

Case No.16588/96-97/NHRC

            The Commission received a complaint from Shri Ghasi Lal from District Sawai Madhopur, Rajasthan, alleging that officials of the Forest Department, Rajasthan shot dead one Devi Shanker. It was alleged that a forester was also shot dead by the officials of the Forest Department led by a Forest Ranger, who had spread a reign of terror in the forest area of Bodal Nakka.  The complainant sought impartial investigation into the incident and payment of adequate compensation to the dependents of Devi Shanker.

            The Commission took cognizance of the complaint and issued notices to the Chief Secretary and the DGP Rajasthan calling for their reports. In response, the SP Sawai Madhopur, Rajasthan submitted a report stating that a case No.92/96 was registered u/s 302/342/323/504 IPC with regard to the death of Devi Shanker who was shot dead by forest officials. After investigation of the case, the accused persons Parvinder Singh and Badan Singh were arrested and a charge-sheet was filed against them in the court. The death of the forester was also investigated and after investigation, a case No.93/96 was registered u/s 147/148/149/448/353/332/324/307 IPC.

            Having noted that two cases were registered with regard to the allegations made by the complainant, the Commission asked the SP Sawai Madhopur to apprise it of the present stage of these cases. The Commission directed that departmental inquiry also be initiated against the accused Forest Ranger for dereliction of duty in the gunning down of an innocent person, Devi Shanker. The Commission further directed the Government of Rajasthan to pay a sum of Rs.4 lakhs to the next of kin of the deceased as compensation within four weeks. Further, the Commission asked the Government of Rajasthan to release an amount of Rs.50,000/- immediately and the rest of the amount be deposited in a Nationalised Bank on a long-term basis and the interest earned thereon be paid monthly to next of kin of the deceased.

DEATH OF 64 INNOCENT LABOURERS AND DESTRUCTION IN A VILLAGE OWING TO NEGLIGENCE : BIHAR

Case No. 5910/95-96/NHRC

             The Commission received a complaint from Shri Rakhohari Biswas, a resident of Village Lakaruka, Dhanbad, Bihar alleging that 64 workers had been killed owing to the flooding of water in Gajlitand colliery and that villages located in the surrounding area were affected by a poisonous gas.  Further, it was stated that cultivable land was destroyed following a fire inside the coal mines which also led to cracks in the houses of the villagers.  The complainant alleged that the concerned authorities, namely, the management of the Bharat Coking Coal Ltd. (BCCL) and the Director General (Mines Safety), Dhanbad were insensitive to the situation and that he feared a danger to the lives of the villagers.

             In response to the Commission's notice, the Government of Bihar reported that there were cracks on the walls of some houses and that leakage of poisonous gas was continuing in small quantities. As regards the destruction of cultivable land, it was stated that cultivation had been discontinued for a long period in that area prior to the incident.

             The Commission noted that the State Government's report clearly brought out that an untoward incident could readily occur affecting the lives and property of villagers and there was an immediate need for rehabilitation. The report further stated that the management of BCCL had been contacted for rehabilitation of the villagers, through letters issued in 1995 and in November 1996 and December 1996.

             In view of the imminent danger to both human lives and cattle in the area, as brought out in the report, the Commission, in order to ensure that rehabilitation measures were taken, called for a further report within four weeks.  The Commission, in addition, recommended the payment of Rs. 10,000/- to each of the affected families and Rs. 50,000/- to the families of the deceased, as interim compensation, by the management of BCCL.

DEATH OF AN INJURED PERSON OWING TO NEGLIGENCE BY THE POLICE: BIHAR

Case No. 2054/4/1999-2000

             The Commission received a complaint from Smt. Phoolwanta Kuwar, a resident of Kamur, Bihar stating that on 16 September 1999, her husband Late  Shri Bindeshwar Chaudhary had been brutally beaten by Brij Bihari and others in a false case relating to the theft of a buffalo. In that connection, a case had been registered in the PS Mohania but the police allegedly did not take any action against the accused persons and her injured husband had been kept in the custody of a Medical Officer, Vinay Bahadur Sinha, after being handcuffed.  He had allegedly not been provided proper treatment until he contracted tetanus, at which point, he was referred to a hospital in Varanasi. The complainant stated that her husband died there owing to negligence of the doctor and the police. It was further stated that she became a widow at the age of twenty and that her husband had left behind a six-month-old child. The complainant sought a high level inquiry into the matter and justice for herself and her innocent child.

            Upon perusal of the complaint, the Commission issued notice to the Chief Secretary and the DGP Government of Bihar to conduct an enquiry and send a report in the matter.  The report obtained from the Chief Secretary and the DGP Bihar revealed that an investigation was conducted by Dy. SP Mohania in this case and it was found that on 16 September 1999 at 9.30 PM Sonu Chaudhary brought Bindeshwar Chaudhary in an injured condition to the police station and filed a complaint alleging that the injured Bindeshwar Chaudhary and a few others had been caught red-handed by the locals while stealing a buffalo. The public who gathered on the occasion beat Bindeshwar brutally, thereby injuring him. Following the complaint, a case was registered under Section 379/411 IPC and the injured person was referred to Mohania Hospital for treatment. Owing to excessive injuries on the person of Bindeshwar Chaudhary, he was not produced before a court. On 23 September 1999, his condition had deteriorated and, as a result, he was referred to the hospital in Varanasi, where he succumbed to his injuries. On 27 September 1999, the relatives of the victim had taken away the dead body and filed a complaint which was registered as Case No.263/99 under Section 304(A) IPC against five accused persons. It was also reported that the name of the deceased was in the crime diary Part II in PS Mohania and he was also a suspect in Case No.179/96 under Section 379 IPC. The post-mortem report attributed the cause of death to respiratory failure and to the injuries caused on the body of the deceased.

             Upon perusal of the report, the Commission noted serious short-comings in it.  No information was forwarded to the Chief Judicial Magistrate in Case No.263/99 for not producing the accused (deceased) within 24 hours of his arrest; when the accused (deceased) was brought to the police station in an injured condition, the police failed to register a complaint against those who had caused injuries; the death of the victim was caused while in police custody and, therefore, a video-graphy of the post-mortem report should have been conducted. An inquest report should also have been prepared by the Judicial Magistrate.  While the SHO of PS Mohania was arrested with immediate effect and departmental proceedings were initiated against him, the Commission observed that the police had failed in the performance of their legitimate duties by not registering a case against the wrong doers who had caused serious injuries to the husband of the complainant. The police was also negligent in not referring the seriously injured husband of the petitioner in time to the hospital and in providing proper treatment; this had resulted in his death. The Commission further noted that the report was silent about the allegation of handcuffing of the injured husband.  It was also admitted that no information was forwarded to the Chief Judicial Magistrate for not producing the injured husband of the complainant before the said court, which confirmed that there had been deliberate inaction on the part of the police. The Commission observed that the evidence on record proved the allegation of the complainant of ill-treatment of her husband by the police.

             Having regard to the facts and circumstances of the case and keeping in view that the complainant was widowed at the age of 20 years and left alone with the responsibility of raising a 6 month-old child, the Commission recommended the payment of interim compensation in the amount of Rs. 3,00,000/- to the wife of the deceased. The Commission further directed that a sum of Rs.20,000/- may be paid by a demand draft to the complainant and the balance deposited in a Nationalised Bank and interest be paid to her every month. The Commission also asked the Government of Bihar to expedite disciplinary action against the errant police officer. The Commission was informed that necessary sanction was issued for payment of compensation. 

PROTECTION OF RIGHTS OF CHILDREN/WOMEN

 SUICIDE BY A DALIT WOMAN, FOLLOWING RAPE BY EIGHT PERSONS INCLUDING FOUR CONSTABLES – KARNATAKA

Case No.581/96-97/NHRC

             A complaint dated 10 April 1996 was received from Hasan Mansur, President, PUCL-Karnataka that ABC (name withheld to protect identity), a Dalit woman was raped by eight persons, of whom some were constables, and she subsequently committed suicide. The complaint further mentioned that one Ganga had also allegedly been killed by the police. The Commission was requested to investigate the incidents and render justice to the victims.

             In response to the Commission’s notice, the Government of Karnataka sent a report stating that in ABC case, four police officers had been kept under suspension and a charge sheet was filed against them on 5 November 1996. The case was pending trial. The report further admitted that the four police personnel had misbehaved with ABC. Regarding Ganga’s case, the report stated that a case Cr. No.90-/95 was registered in Azadnagar Police Station and was pending investigation.

             The Commission held that though the husband of ABC might have been involved in a crime, she was fully entitled to respect for the dignity of her person. Unable to bear the ignominy of rape, the Commission noted that she had committed suicide. Her next of kin were entitled to be recompensed for the loss of her life. The Commission, therefore, directed the State to pay a sum of Rs.2 lakhs to the next of kin within six weeks. With regard to the death of Ganga, the Commission directed that if the charge-sheet had not already been filed by them, the investigation should be entrusted to the State CID who should conduct a thorough investigation and take appropriate follow-up action and have the accused prosecuted successfully. In addition, disciplinary action against all erring police personnel for major penalty should be taken and concluded as expeditiously as possible.

FORCIBLE DISPOSSESSION OF A POOR WOMAN: BIHAR

Case No. 1259/4/98-99

 The Commission received a complaint from an elderly woman, Smt. Chinta Devi, alleging that she was forcibly dispossessed of her land at the instance of the local MLA.  She also alleged that that MLA and his group had beaten her, looted household articles and razed her tea stall, which was her only source of income.

 The Commission directed the SP Nalanda to submit a report and also directed its own Investigation Wing to conduct an enquiry.  The Commission’s Investigation Wing reported that though the alleged incident took place on 25 September 1997, the police registered the FIR only on 3 November 1997 and that the delay was willfully caused by the local SHO, who was suspended on 2 November 1997.  It was further stated that the land on which the complainant was running her tea stall was a disputed site and the matter was sub-judice.  A case had already been registered against 11 accused persons for assaulting the complainant and a charge-sheet had been submitted in the court.  No case could be made out against the local MLA for want of sufficient evidence.  The report also stated that household property of the complainant worth Rs.32,000/- could not be recovered and that no compensation had been paid to the complainant.

 The Commission noted that legal action had been taken against the erring officials and the hooligans.  The land on which the complainant had set up her tea stall was the subject matter of an on-going civil suit.  In the circumstances of the case, the Commission felt that an independent inquiry by a senior Police Officer into the alleged involvement of the local MLA was warranted.

 The Commission expressed its dismay that the local SHO – a public servant – had willfully not registered Smt.Chinta Devi’s complaint on time.  In this case, the dereliction of duty by a public servant had failed to avert an unfortunate incident.  The Commission also expressed serious concern that the culprits destroyed the tea stall, which was the complainant’s only source of income.

 Keeping the above in view and the Constitutional provisions on the right to a means of livelihood, the Commission recommended that

 i)                     The Government of Bihar pay Rs.25,000/ (Rupees twenty-five thousand) as immediate interim compensation to Smt. Chinta Devi.

 ii)                   The Government of Bihar consider providing to Smt. Chinta Devi free accommodation under the Indira Avas Yojana scheme to enable  her to continue earning her livelihood.

 iii)                  The Government of Bihar conduct an independent inquiry into the alleged involvement of the local MLA and submit a report.

 Comment:

Every Indian citizen enjoys the fundamental right to life that the Supreme Court has interpreted to include the right to earn a livelihood. And no citizen can be deprived of this right except by a procedure that is just, fair and reasonable. Smt. Chinta Devi, was a woman who was deserted by her husband and was eking out a living for herself and her children by running a small tea stall. By destroying her tea-stall and dispossessing her of her land, the culprits have unlawfully deprived her of her constitutional right to a means of livelihood.

RAPE OF A MINOR DALIT GIRL BY PROTECTORS OF LAW – UTTAR PRADESH

Case No.9133/24/98-99

            Shri Chandradhas Maurya, a member of Samta Sainik Dal and a resident of District Bulandshar, Uttar Pradesh, in a complaint to the Commission alleged the kidnapping, rape and suicide of a 15 year old dalit girl ABC (name withheld to protect identity). He stated that two firemen, along with a police constable, enticed ABC away on 14 August 1998 and took her to their rented premises in front of the police station where they raped her repeatedly. She was allowed to go away next morning with the threat that she would be killed if she reported the incident to anyone. The girl disclosed the incident to her family members and she along with her family members went to the Police Station, Dibai and met the Sub-Inspector and later the Fire Station Officer both of whom, instead of taking cognizance of the case, abused the girl, passed derogatory remarks and also threatened them with implication in false cases. Upon returning home, ABC committed suicide by setting herself on fire and later succumbed to her burn injuries at 9 AM on 15 August 1998.

           As the complaint related to a grave violation of human rights of a dalit girl, the Commission took cognizance of this matter on a priority basis and issued notice to SSP  Bulandshar calling for a report. The report dated 6 October 1998 received from SSP Bulandshar stated that the complainant had denied having sent the complaint in question to the Commission but confirmed the averments and allegations made in the complaint with regard to the suicide by ABC after she was raped by the two firemen. It was also reported that, upon a complaint of the grandfather of the victim, a case FIR No.221/98 under Section 363/366/376/306 IPC and under Section 3(1)/12 of SC/ST Act had been registered and efforts were on to arrest the accused persons.

           Upon considering the report, the Commission thought it expedient to get the matter inquired into by its own Investigation Division. Pursuant to this decision, an Inspector from the Investigation Division made an on-the-spot inquiry and submitted a report. According to it, ABC had developed illicit relations with the two firemen. On the night of 14 August 1998, she was taken by them to their rented house where she was sexually exploited. The next day, ABC approached the Fire Station Officer and SHO to complain about the rape but neither took cognizance of the case. Thereafter, the girl committed suicide by burning herself. A case was registered on 17 August 1998 only after a protest and road blockade by the residents of the village. The report of the investigation team also indicated that the station diary for 16 August 1998 was tampered with. It was also observed that while the SHO had visited the scene of the crime, he did not record the dying declaration of ABC, though she was capable of giving one at that time.

           Upon perusing the report, the Commission held that SHO Dibai and In-charge, Fire Station, Dibai had not conducted themselves in a manner befitting their office and responsibilities and that they had not only shown a lack of sensitivity in a matter of grave importance, namely the protection of a dalit girl subjected to sexual assault, but had been thoroughly negligent in not taking cognizance of the complaint lodged by ABC. Instead, the Commission noted, they had allegedly made derogatory and uncharitable remarks about the girl. The Commission observed that the attitude of these two officers had driven ABC to take the extreme step of ending her life by setting herself on fire, having been left with the impression that she would not get justice. The Commission further observed that the remarks and inaction on the part of the officials might, perhaps, make them liable for the offence of abetment of suicide by ABC, which was punishable under Section 306 IPC and which aspect needed to be investigated.

            On a consideration of all the facts and circumstances of the case, the Commission recommended to the Government of Uttar Pradesh that:

(i)                   While initiating disciplinary proceedings for major penalty against the concerned SHO and Fire Station Officer, they may be placed under suspension with immediate effect;

(ii)                 It entrust the investigation of the case to the State CID in order to ascertain further the role of these two officers, as also that of another Constable, who was alleged to have aided and abetted in the kidnapping and rape of ABC;

(iii)                Pay, by way of immediate interim relief, a sum of Rs.1,00,000/- to Shri Narain Singh, grandfather of ABC within a period of one month. Out of the awarded sum of Rs.1,00,000/- a sum of Rs.25,000/- be paid by way of cash/demand draft and the balance amount of Rs.75,000/- be put in a fixed deposit in a Nationalised Bank for a period of 5 years, periodic interests accruing thereon being payable to him.

Pursuant to the Commission’s recommendations, the State Government started a disciplinary inquiry and an inquiry by the State CID. The compensation was also sanctioned. 

FALSE IMPLICATION OF A WOMAN IN A MURDER CASE:  BIHAR

Case No. 15573/96-97/NHRC

             The People's Union for Civil Liberties (PUCL) drew the attention of the Commission, through a complaint, to the suffering of one Smt. Nilmani, who was falsely charged in a case relating to the murder of her sister-in-law.  As she could not engage a lawyer to defend herself, she had remained behind bars until she was finally acquitted by the court having spent more than ten years in jail.  The Commission was also informed that Nilmani was living in difficult circumstances after her release.  She was reportedly suffering from paralysis and was unable to walk. The PUCL sought adequate compensation to the victim as well as her rehabilitation. 

             In response to the Commission's notice, the Government of Bihar stated that the matter related to proceedings before a court and not to the conduct of the jail authorities. The Commission, however, noted that the victim had been falsely involved in a murder case and had been compelled to live in the jail for more than 10 years for no fault on her part.  Further, there was no record to show if any appeal against her acquittal was pending in any court of law.  Under these circumstances, the Commission observed that the liability of the State arose on account of her harassment and incarceration during a large part of her active life.

             Having regard to the facts and circumstances of the case, the Commission directed the Government of Bihar to pay Smt. Nilmani a sum of Rs. 2,00,000/-  as compensation for her rehabilitation.

ILLEGAL DETENTION OF THREE YEAR OLD CHILD FOR TEN YEARS DUE TO APATHY OF THE POLICE AND OTHER AUTHORITIES

Case No.78/25/98-99

            Syed Shahabuddin, former MP, drew the attention of the Commission to the plight of a young girl who had witnessed a murder and was thereafter detained in police custody for about ten years, as a result of which her childhood was lost. The incident had been reported in “The Times of India” under the caption “Witness spent 10 Years in Custody – Case yet to begin”. The Commission immediately took note of the letter and called for a report from DGP West Bengal. The Office of the DGP forwarded the report which stated that although the name of the girl had not been mentioned by the complainant or in the newspaper item, the report was presumably about a girl named Kalpana Mistry. According to the report, on 30 March 1990, the learned SJDM Kalyani Nadia had ordered that Kalpana Mistry, who was an eyewitness in a  case in which her father had allegedly murdered her own mother, should be lodged at Liluaha Home and produced in the court, as and when required. She was last produced in the court on 20 September 1996 and she failed to identify the accused. She was taken to Liluaha Home on 29 September 1996. In between, in 1992, she was shifted from the Liluaha Home to a Child Care Home (NGO) on the orders of Shri R.M. Zameer, IAS, SP and Ex-Officio Director of Special Welfare, West Bengal for proper upkeep, schooling, protection, care and further rehabilitation. However, when the said NGO moved the learned court for approval of transfer, the learned Sessions Judge termed the act as highly irregular and asked for an explanation from the Director of Social Welfare for having transferred the child without approval and intimation to the court. Subsequently, she was again sent to the Liluaha Home. Though its Memo dated 1 September 1997, the Social Welfare Department again directed transfer of the child to a Government approved/recognised NGO Child Care Home for her education, care and further rehabilitation. The report stated that the court had not passed any order so far.

            The gist of the report from the office of DGP West Bengal was sent to Syed Shahabuddin for his comments. Shahabuddin expressed his anguish both at the callousness of the civil and police authorities who, without a thought regarding the tender age of the child, had kept the girl in isolation, and also the court for not even having cared to pass an order for her future guardianship. He suggested that since the State is a guardian in such cases, the child should be handed over to SOS Children Home and NHRC should give suitable compensation which should be deposited in her name as a trust for her future.

            The Commission expressed its shock at the inhuman and apathetic manner in which the case was handled by the police and other authorities. The Commission found the very idea of retaining a girl child, who was only three years old at the time of the incident, and considering her competent to be a witness in a court of law and keeping her waiting for the commencement of the trial for ten long years, as shocking. The appalling lack of interest shown by the authorities in the welfare of the innocent child resulted in depriving her of her normal childhood which could never be regained. No amount of compensation, the Commission felt, would be adequate for the loss she had suffered. However, in order to alleviate her suffering to some extent, the Commission recommended to the Government of West Bengal to ensure that child is suitably rehabilitated and educated in the SOS Children’s Home or sent to a reputable institute run by an NGO in or around the city of Calcutta, till she became a major. The Commission also recommended that a sum of Rs.50,000/- be deposited in her name through a court guardian, the interest of which would be paid to the institute looking after her, and the principal amount to be released to her on her becoming a major to enable her to settle in life. A Compliance report from the West Bengal Government has since been received.

COMMENT

In the Universal Declaration of Human Rights, 1948, the United Nations has proclaimed that the child is entitled to special care and assistance.  Article 3 of the Convention on the Rights of the Child, 1989 stipulates that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

EDUCATION OF CHILDREN OF SEX WORKERS : DELHI CASE NO.16754/96-97/NHRC

 The Joint Women’s Programme (JWP) and Mashaal Mahila Sangathan (MMS) sent a petition to the Commission on 17 February 1997 complaining about the reluctance of the Municipal Corporation of Delhi (MCD) to allocate one additional room in the MCD Primary School, GB Road, Delhi for the education of children of sex workers and attempts to vacate them from the existing room which was allotted to them.

 In response to the Commission’s notice, MCD stated that it was not their responsibility to provide accommodation to JWP to educate the children of the sex workers or to provide other health programmes to the sex workers and their children. The MCD added that the terms of the initial allotment to JWP to organize their part-time programme after school hours in room no.9 had been violated and that the MCD was itself providing education to all children in the school run by Corporation.  The MCD also said that it would be open to the children of sex workers to get admitted in that school.

 The Commission in its proceedings of 7 July 1999 noted that the increased inflow of students every year compelled the JWP to commit a breach of the conditional order of allotment. The breach of the condition was neither volitional nor for any private profit motive but to serve the public cause. The Commission was of the considered view that the breach was inconsequential. Having regard to the circumstances, the Commission held that MCD, being a local authority and an arm of the State, had a duty to implement the programmes of education and health care of the children of sex workers. In the light of the provisions of the Constitution, relevant Supreme Court judgments and the provisions of international instruments, the Commission recommended the allotment of an additional room to the complainant organization, in addition to it retaining possession of the existing room. After repeated efforts to secure compliance of its directive, the Commission received a report from the MCD indicating that appropriate action had been taken in accordance with the view expressed by the Commission.

COMMENT

In Gaurav Jain vs. Union of India (AIR 1997 SC 3021) the Supreme Court  held that, “it is the duty of the State and all voluntary non-government organizations and public spirited persons” to come to the aid of sex workers and “to retrieve them from prostitution, rehabilitate them with a helping hand to lead a life with dignity of person”. 

 The children of sex workers are entitled to facilities and opportunities for their education and health care.  Article 19(2) of the Convention on the Rights of the Child stipulates that,`State authorities shall take all legislative, administrative, social and education measures to protect the child from neglect or negligent treatment, mal-treatment or exploitation including sexual abuse’. Articles 28 and 29 of the Convention on the Rights of the Child set out the obligations of States party to the Convention in respect of the education of children.

PROTECTION OF RIGHTS OF DALITS, MINORITIES, DISABLED & OTHERS

 ATTACKS AGAINST CHRISTIANS IN SEVERAL STATES

Case Nos.289/6/1999-2000; 351/6/1999-2000; 295/6/1999-2000; 481/6/1999-2000; 1873/4/1999-2000;1933/4/1999-2000

 In its previous Annual Report, the Commission recounted in detail the steps it had taken in respect of the killing of an Australian priest, Mr. Graham Stewart Staines and his two sons in Orissa as well as the attacks that had occurred on members of the Christian community in Madhya Pradesh and Gujarat. The Commission observed that, given the recurrent character of these grievous occurrences, a pattern transcending any single state appeared to be emerging, threatening the pluralistic character of the country and constitutionally guaranteed human rights.

During the year under review, the Commission took cognizance of six specific complaints alleging violations of the rights of members of the Christian community.  These were complaints from:

1.       Mrs. P. Lal Joseph, Barabanki, Uttar Pradesh regarding harassment, torture and an attack on Christians by one Vijay Singh;

2.       Dr. J.J. Bennett concerning attacks on Christians by activists of the Vishwa Hindu Parishad (VHP) and Bajrang Dal in Gujarat;

3.       Shri Samsom C. Christian, concerning acts of religious intolerance by certain groups in Ahmedabad, Gujarat;

4.       Shri P.P. Joseph alleging attacks on Christian minorities by VHP and Bajrang Dal activists in Gujarat;

5.       Shri Samsom C. Christian alleging attacks on some Churches of South Gujarat.

6.       In addition, suo-motu cognizance was taken on reports covering the alleged kidnapping and mistreatment of a nun working in Bihar.

Greatly concerned by these developments, the Commission was in frequent touch with the Chief Secretaries and Directors General of Police of concerned States.  However, as instances of violence directed against members of the Christian community continued to be reported in the press, the Commission set in process a comprehensive review of the arrangements in all States of the country required to fully protect the rights of the community.  The steps taken would be covered in greater detail in the next Annual Report of the Commission.

FACILITIES FOR FOREIGN NATIONALS DETAINED AT LAMPUR SEVA SADAN – DELHI Case No.693/30/97-98

             While considering the petition concerning the possible deportation of Shri Rongthong Kuenley Dorji, it came to the notice of the Commission that he had been detained at Lampur Seva Sadan, an institution for rehabilitation of beggars, administered by the Social Welfare Department of Government of NCT of Delhi. On 24 May 1999, the Commission directed the Director General (Investigation) [DG(I)] of the Commission to visit Lampur Seva Sadan to make an assessment of the conditions prevailing therein. After his visit to Lampur Seva Sadan, DG(I) submitted his report in which he stated that the foreigners were confined to a few barracks in one segregated corner of the campus, with a compound wall and a gate.  Security was being provided by a section of the Rajasthan Armed Constabulary. 

             After considering the report, the Commission recommended that separate enclosures be created for foreign nationals and that the Government of NCT of Delhi undertake immediate repairs and to take the following steps to improve the arrangements:

 (i)                   Replace the asbestos sheets roofing with roofing made up of some other material that would not be harmful to inmates.

(ii)                 Post adequate number of conservancy staff immediately for the cleanliness of the area and for the maintenance of the toilets/bathrooms.

(iii)                Make separate cooking arrangements for the foreigners instead of supplying them food from the beggars home as that might hurt their sentiments and sense of dignity.

(iv)                Consider provision of separate STD/ISD booths for use of the foreign detenues.

(v)                  Establish MI Room where a doctor and the para-medical staff are available round the clock for medical cover.

(vi)                Issue proper instructions to ensure regular visits by senior officers to this detention centre.

 The Commission also directed the Principal Home Secretary, Secretary and Director, Social Welfare Department and the FRRO of the Delhi Administration to visit the Lampur Seva Sadan and work out a proper strategy for bringing about ameliorative changes not only for the foreign detenues but also for the institutions for beggars located in the campus.  The Commission has received a compliance report.

HARASSMENT OF DENOTIFIED AND NOMADIC TRIBALS BELONG TO PARDHIS COMMUNITY IN BIGHWAN VILLAGE, PUNE, MAHARASHTRA

Case No.512/13/98-99

             Shri G.N. Devy, Secretary, Denotified & Nomadic Tribals Rights Action Group, Baroda, Gujarat submitted a complaint to the Commission alleging atrocities on the Pardhis community, a denotified community of tribals living in the backwaters on the banks of the Ujni Dam, Bigwan village, Taluk Indiapur, Pune, Maharashtra by persons in plain clothes serving in the Railway Police on 12 July 1998. It was further alleged that their houses, fishing nets, boats  and other materials were burnt. The police had also beaten up the women of the community, including pregnant women and had attempted rape on two teenaged girls.

             On consideration of the reports of the Investigation Team of the Commission and the Superintendent of Police, Railways, Pune  the Commission found that the police report, sent by the S.P. Railways, Pune also corroborated the report of the Commission’s Investigation Team which conclusively established that the Police Anti-Dacoity Team had tortured four innocent women and molested two young women in their zeal to nab male Pardhis who were alleged to have been involved in committing crimes of theft, dacoity, etc. The evidence also established that several huts belonging to the tribals and their fishing nets were destroyed. The Investigation Team had estimated damage amounting to Rs.10,000/- in respect of each family. In addition, innocent women suffered trauma and torture. The highhandedness and misconduct of the police officials was unbecoming of their profession. Two young women, one of them a teenager, were molested by the police. The evidence on record indicated that, in their zeal to nab certain criminals alleged of belonging to the denotified Pardhi tribe, the police had behaved in a shocking and brutal manner.

             In view of the facts and circumstances, the Commission recommended: of the four women victims, namely, Smt. Shalan Pratap Kale, Smt. Manda Latif, Kum. Jyoti and Smt. Alka Chandrasal Kale, the first three be paid Rs.1 lakh each and Smt. Alka Chandrasal Kale, Rs.1,50,000/- as immediate interim relief;  a sum of Rs.10,000/- may be paid to each of the families of the Pardhis who were staying on the bank of Ujni Dam, near the backwaters, whose huts, utensils and fishing nets were destroyed, as compensation by way of ‘immediate interim relief’; in case a charge-sheet had not yet been filed in the court against the erring police personnel, the case may be entrusted to the State CID and a charge-sheet be filed thereafter against all the culprits in the appropriate court; (d) disciplinary action may be initiated against the erring police personnel.  The State Government has sent a compliance report with regard to the payment of compensation. 

ATROCITIES INFLICTED ON A FAMILY IN MAHARASHTRA Case No.1361/94-95/NHRC

             Shri A.R. Antulay, Member of Parliament (MP) filed a petition dated 12 September 1994 before the Commission highlighting the case of the Haspatel family of village Walwati, Shrivardhan Taluk, Raigad District, Maharashtra, who were allegedly subjected to serious atrocities by the police during the communal riots that took place in Maharashtra in December 1992 - January 1993. The complainant stated that the act of the police against an innocent family had the distinct tinge of communal bias.

             On consideration of the matter, the Commission noted from the report of the State Government that departmental action had been ordered against the police officials involved in the matter. The Commission accordingly recommended that, keeping in view the nature of findings in the departmental proceedings, appropriate prosecution should be launched in respect of all or such of the persons who were found responsible for the conduct which had been indicted in the Government order.

             The matter was again considered again by the Commission on 17 January 2000.  The Commission observed that from the conclusions reached and the findings recorded by the State CID, it was evident that Shri Iqbal Ismail Haspatel, his wife, three sons and a daughter-in-law, i.e. in all six members of that family, were not only humiliated and harassed but also unlawfully tortured. Some of them were subjected to illegal arrest. All of these persons were subjected to several indignities wholly inconsistent with norms of decency. It was also noted that allegations had been made to the effect that valuable property estimated at Rs.1.87 lakh, owned by the victims of the incident, had also been taken away or destroyed by the police officials; this required further verification. The Commission directed the Government of Maharashtra to pay an amount of Rs.5 lakhs as compensation by way of ‘immediate interim relief’ to Shri Ismail and his family members. The Government of Maharashtra has complied with the Commission’s recommendations on the payment of compensation of Rs. 5 lakhs to the victims.

 DEATH OF WORKERS IN SILICON FACTORIES OF MADHYA PRADESH

Case No.7894/96-97/NHRC

             A news-item appeared in the “Sunday Observer” in September 1996 captioned “Death in the Air”. The Commission took suo motu cognizance of the news item and called for a report from the Government of Madhya Pradesh. The report indicated that there were 134 slate factories which were set up in Mandsaur District of Madhya Pradesh.  The health of the majority of the workers employed in these factories was affected due to inhalation of silicon dust. The Government had taken steps to provide medical facilities and ensure that all these workers were covered under the Employees State Insurance (ESI) scheme. There was a mobile van in operation to provide medical facilities to the workers. They were even provided with pensions on the declaration that the worker was affected by the disease, which was an occupational hazard. The district administration had advised owners of these factories to instal BHEL machinery to minimise dust particles. However, many of the owners of these factories were unable to meet the cost of the sophisticated machinery, this resulted in the spread of silicosis dust and affected the workers’ health. The Labour Inspectors were visiting the factories and prosecuting those who were not applying the minimum standards laid down for prevention of this pollution.

Having regard to the provisions of the Indian Constitution as well as to the International Human Rights instruments with regard to the right to life. the Commission gave the following directions to the State for compliance in future:-

 1.                   To ensure the establishing of BHEL machinery in the factories to prevent dust pollution and to ensure that pollution free air is provided to workers.

2.                   Periodic inspection, on a monthly basis, by the Labour Department and reports made to the State Human Rights Commission for monitoring.

3.                   Widows and children of deceased workers to be taken care of by the factory owner by providing assistance.

4.                   To ensure that child labour is prevented by the following methods:

(a)     Establishing schools at the cost of factory owners, with assistance from the State for the education of workers’ children.

(b)     The provision of periodic payments for their education and insurance coverage at the cost of factory owners.

(c)     The position of mid-day meals and clothing to dependent children or children of deceased workers.

 COMMENT

             In examining this matter, the Commission observed that the Right to Health and Medical Care is a fundamental right under Article 21, read with Articles 39(e), 41 and 43 of the Constitution. The Right to Life includes protection of the health and strength of workers and is a minimum requirement to enable a person to live with human dignity. The Universal Declaration of Human Rights as well as other International Instruments also speak of this right. Continuous exposure to the corroding effect of silicon dust can result in the silent killing of those who work in such an environment. The duty of the State, under the Directive Principles of the Constitution, is to ensure the protection of the health of workers employed in such Slate factories in Mandsaur and elsewhere in the State.

 POLICE FIRING ON DALITS: TAMIL NADU

Case No.172/95-96/NHRC

             A complaint dated 28.2.1995 was received from Shri P.Kamnayya, Organiser and Treasurer, Adi Dravida Welfare Rights Sangh, Karaikudi, Tamil Nadu which said that two persons belonging to the Scheduled Castes from Village Vashistpuram, District South Arcot were shot dead by Tamil Nadu police on 17 January 1995, while they were trying to protect others of their community who were being lathi-charged by the police when they tried to hoist a flag of Dr. Ambedkar in the street. The allegation was that the police even helped members of other castes to ransack the homes of those belonging to the Scheduled Castes. Media persons were not allowed to file any report on the matter in the newspapers.

             The Commission took cognizance of the complaint and sought a report from DGP Tamil Nadu. Although a report was received from the DGP, the Commission was not satisfied with it and directed the Director General (Investigation) of the Commission to inquire into the matter. On enquiry, it was found that the clashes had taken place not on 17 January 1995 but on 19 January 1995. The police had fired two rounds causing injury to Jyoti and Mahindra, who were hospitalised and later discharged. However, in the clash, the mob of non-Adi Dravidars had beaten to death two persons, Shri Shanmugham and Shri Ramesh. The police had registered the complaint and charge-sheeted the accused persons.

             The Commission considered the report of the Director General (Investigation) and directed the Chief Secretary, Government of Tamil Nadu to pay Rupees one lakh as compensation to the wife of the deceased, Shri Shanmugham, and to give her a job to earn her livelihood. It was also directed that Rupees One lakh should be paid as compensation to the father of the deceased, Shri Ramesh, who was also a victim of mob anger. Of the Rupees One lakh being paid to them, it was directed that Rs.20,000/- may be paid straight away and the balance Rs.80,000/- kept in a long-term fixed deposit in a Nationalised Bank with the interest earned being paid to them every month. The Commission also directed that Rs.30,000/- each be paid to Shri Jyoti, son of Shri Muthu and Shri Mahindra, son of Shri Peruman, who suffered bullet injuries at the hands of the police. Of this a sum of Rs.5,000/- should be paid in cash and the balance of Rs.25,000/- placed in a long-term fixed deposit in a Nationalised Bank with interest thereof to be paid to them every month. The Government of Tamil Nadu was directed to monitor the prosecution of all those accused and to submit a report to the Commission.

REHABILITATION OF PHYSICALLY HANDICAPPED: MADHYA PRADESH

Case No.1528/96-97/NHRC

             Shri Bihari Lal Thevait, a resident of District Bilaspur, Madhya Pradesh sent a petition to the Commission wherein he said that he was a 26-year old man whose lower limbs had not been affected by polio. He also suffered from a cardiac problem. He had approached the District Collector for assistance and employment. Although the District Collector arranged for his operation at a private hospital, free of cost, the operation was not successful and even after four to five years he was not cured. He alleged that the operation was suggested instead of providing him with a tricycle. The then District Collector also provided him with assistance at the rate of Rs.2,000/- per month and this continued until such time as that Collector was in office. The Collector also passed an order for his appointment as an Assistant Teacher. However, this did not materialise. He, therefore, sought compensation of Rupees Fifty lakhs for violation of his fundamental rights, treatment of his heart ailment, management of his disability and employment as an Assistant Teacher.

             Though the Commission does not normally take action on petitions which relate essential to service matters, the Commission in this case issued a notice to the Collector and called for a report as the petitioner was a disabled person. The Collector responded saying that the complainant was affected by polio when he was one-and-a-half years old and that both his feet were deformed. The opinion of Orthopaedic Doctors was sought, and they had certified that the complainant would have to move on hands and knees, in a crawling position, unless he was operated upon. Accordingly, he was operated upon in 1988 and his limb deformity was corrected to a large extent. In five months time, he was fitted with calipers and a walking frame to help him stand erect. The Collector also stated that the complainant was entitled to be considered for a job under the quota for persons with disabilities. According to the Collector, the complainant had tried to obtain a certificate of complete recovery to enable him to get the job of an Assistant Teacher. He was advised to obtain a disability certificate from the competent authority. The petitioner apparently made the complaint as he was aggrieved by this advice. The report of the Collector was sent to the complainant for his comments. However, the petitioner stood by his complaint and stated that the operation, which was performed, was not successful and his defect was not cured even after four years. The complainant claimed Rupees Twenty lakhs as compensation for mental and physical torture he had undergone and Rupees Thirty lakhs for protection of his rights and for his living.

             The Commission considered the matter carefully and expressed appreciation of the action taken by the District Collector. The question  whether the condition of the petitioner worsened after the operation, as claimed by him, was not probed further. However, the Commission felt that the State Government,  in a Welfare State, should help alleviate the suffering of such disabled persons. Accordingly, the following recommendations were made by the Commission to the State of Madhya Pradesh:

 (a)                 To grant ex-gratia monetary relief to the tune of Rupees One lakh to the petitioner, either from the fund established by the State Government for the welfare of the handicapped persons, or from the Chief Minister’s Relief Fund.

 (b)                 To offer a job to the petitioner commensurate with his academic qualifications and physical ability, in accordance with the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, or on compassionate grounds.

 The State Government has intimated the Commission that it has paid a sum of Rs. 1 lakh as compensation to the petitioner. 

 INHUMAN TREATMENT OF MENTALLY ILL PATIENTS AT SULTAN ALAVUDEEN DURGAH: TAMIL NADU

Case No.427/22/1998-99

 After a visit to the Sultan Alavudeen Durgah at Goripalayam, Madurai on 23 July 1998, Prof. (Mrs.) D. Nazneen, Head of the Department of English, Sri Meenakshi Government College for Women, Madurai, brought to the notice of the Commission what she described as the pathetic plight of mentally ill patients located in the Durgah. She mentioned that there were a few hundred persons staying there, with their wards, seeking a cure for mental illness.  According to her, many of the mentally ill patients were chained and kept in sheds that were open from all sides; there was no space even for free movement of their limbs.  When certain of the patients turned aggressive, they were severely beaten.

 The Commission took cognizance and obtained a report from the Collector of Madurai. He stated that about 92 mentally ill patients were staying in the Durgah for “treatment” and that they were being taken care of by their relatives.  There was no evidence of the beating of patients; instead, it was stated that the patients and their relatives had reportedly expressed the hope of cure.

 Following directions of the Commission, the Director General (Investigation) of the Commission visited the said Durgah and gave an assessment of the situation.  He observed that about 500 patients/devotees were staying in the Durgah.  According to him, faith in the Durgah cut across religious lines as about 75% of those present were Hindu and rest were Muslim.  The accommodation in which these people were living comprised thatched sheds or open verandahs. The DG(I) also mentioned that, in addition to the Goripalayam Durgah, similar places existed in Tamil Nadu, where the mentally ill were taken and often kept in chains in the hope of a cure.

 The Commission observed that it was the helpless situation of the patients and the members of their family that was largely responsible for recourse by them to such courses of treatment. The inadequacy of proper medical facilities and the indifference of Government-run institutes seemed to be other contributory factors.  The Commission, therefore, directed the State Government to get the entire matter examined through a body of persons which could, inter-alia, comprise the representatives of the State Government, the Tamil Nadu State Human Rights Commission and other experts.  The Commission sought a report from the Government of Tamil Nadu as to what steps were being taken to alleviate the hardship of the mentally-ill persons and the persons attending them by providing housing, medical care and other basic amenities. As the response that was received from the Government of Tamil Nadu was inadequate to the situation, the Commission considered the matter again and itself constituted a Committee comprising of Dr. K.S. Mani (former Director, NIMHANS, Bangalore), Dr. (Ms.) Sheela Fenn (retired Professor of Psychiatry, Medical College, Madurai) and the District Collector, Madurai to visit the Durgah and to make specific recommendations to the Commission for the proper treatment of the patients located in the Durgah. At the close of the period under review, the Commission was awaiting the report of the Committee, upon examining which it would pursue this matter further.

DISCRIMINATION AGAINST DALITS: GUJARAT Case No.14/6/1999-2000

             The Chairman of Social Justice Committee, a Non-Governmental Organisation in Amreily, Gujarat made a representation to the Commission on 4 January 1999 wherein he stated that the Patel Community of Devalia village in Amreily District was committing atrocities and practising discrimination against the Dalits of the village. The Patels were preventing the supply of water, milk and butter milk and other essential commodities to the Dalits. They were not being engaged as labourers and the Patel community even prevented the neighbouring villages from engaging the Dalits for labour work. They were prevented from going out of the village, and the crops grown by them were being destroyed by the Patels in the presence of the police who were mute spectators.

             The Commission took note of the complaint and issued a notice to the Collector of Amreily to visit the village and hold discussions with the threatened groups and send a report within two days. Shri P.G.J Nampoothiri, Special Rapporteur of the Commission was also asked to coordinate action in this matter. In his report dated 20 May 1999, Shri Nampoothiri stated that he had contacted the Collector and the SP of the district. The Collector had indicated that due to his busy schedule, he had been unable to visit the district. In the meantime, another NGO called ‘Navjeevan Trust’ of Ahmedabad filed a public interest litigation in the High Court. The main thrust of the PIL was the discriminatory methods being followed by the dominant community, namely, Patels against the Dalits in the district. The problem had begun with encroachment of land which was done by both Patels and Dalits. The High Court had ordered the Panchayat to remove all encroachments. However, the Panchayat, while permitting the Patels to continue with their encroachments, dispossessed the Dalits of the land encroached by them. The Patels had even prevented the Dalits from getting jobs under the Drought Relief Programme initiated by the Government. The District Magistrate in his report of 21 May 1999, stated that he had organised a meeting with the villagers and discussed various problems in the presence of different communities. The Dalits had made demands for continuous police protection, creation of wage employment opportunities, provision of bank loans, etc. The District Collector, with other concerned agencies, was working out the possibility of fulfilling the demands. However, the District Administration had not taken a decision on the economic help to be provided, as the matter was subjudice.  Security cover was, nevertheless, being provided to the Dalits.

             The Commission called for a copy of the Writ Petition and the responses filed in the High Court. The Commission noted, after perusal of the response of the Collector to the Writ Petition that the High Court had further appointed a Committee of three Advocates and officials to inspect and submit a report. This Committee had found that the Collector’s report was not an accurate reflection of the actual situation. There appeared to be large scale discrimination against the Dalits, which was not properly represented in the reply of the Collector. The Collector’s reply was, in fact, based on inaccurate data. The Gram Panchayat officials also did not cooperate with the Committee when the inquiry was being done.  As for the Committee formed by the District Collector, it had not taken any initiative to solve the problem.

             The Committee observed that the Collector was resting on the plea that a Writ Petition was pending in the High Court of Gujarat. The Commission expressed anguish at the fact that, even after fifty years of Independence, the violation of human rights was flagrant and that unwarranted discrimination against Dalits continued, specially in rural India. The dependence of Dalits on agricultural earnings, is the root cause of their being subjugated. The few Dalit youths who strove to rise above their circumstances, the help of education, and asserted their right to equal treatment, were branded as extremists. The Commission further examined the question of whether pendency of the Writ Petition in the High Court actually prevented the District Magistrate from organising economic empowerment programmes and doing real social justice to the Dalits and whether the Commission was precluded from directing the administration to protect human rights and prevent the violation of the human rights of Dalits. Keeping in mind the Constitution of NHRC, it was felt that just as the Hon’ble High Court had powers of jurisdiction and authority under Article 226 to grant such relief as it deems appropriate to the affected persons in the pending Writ Petition, the NHRC was equally possessed by and entrusted with the same function to grant redressal of violation of human rights of the Dalits. The Commission had, therefore, gone into the magnitude of the problems faced by the Dalits and, accordingly, directed the State Government of Gujarat and the District Magistrate Amreily to ensure the economic empowerment of the Dalits adopt the following measures:

 1.                   In accordance with Article 39(B) of the Constitution, the District Collector and the Magistrate, Amreily to ensure delivery of physical possession of the lands to all the remaining Dalits who were given “pattas”.

2.                   Grant “pattas” of any other land available in the village Devalia and within Gram Panchayat’s jurisdiction, as is economical for cultivation as per the rule and, if necessary, organise Cooperative Farming Societies composed of Dalits.

3.                   To organise loan facilities to the youth for self-employment schemes or small scale industries.

4.                   To evolve any other suitable scheme for economic empowerment keeping in mind the availability of local raw materials.

5.                   The State Government and the District Administration to pay ex-gratia compensation at rates varying between Rs.30,000/- to Rs.50,000/- per family depending on the magnitude of suffering undergone by the family. The sum already paid to four Dalits may be deducted from the total payment.

6.                   To ensure supply of drinking water and other essential commodities at controlled prices through Fair Price Shops.

7.                   To continue police protection till the law and order situation becomes normal.

 COMMENT

Article 15 of the Constitution of India expressly prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.  Article 15(2) further stipulates that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -

 (a)        access to shops, public restaurants, hotels and places of public entertainment; or

 (b)        the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Article 46 of the Constitution, under the Directive Principles of State Policy, stipulates that the State shall promote with special care the educational and economic interests of the weakers sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.  Under Article 17 of the Indian Constitution, untouchability is abolished and its practice in any form is forbidden.  The enforcement of any disability arising out of untouchability is an offence punishable in accordance with law.

VIOLATION OF HUMAN RIGHTS OF MEMBERS OF REANG COMMUNITY OF MIZORAM

Case No.40/16/97-98

            The President, Akhil Bharatiya Vanwasi Kalyan Samiti and seven other such like-minded persons submitted petitions to the Commission wherein they alleged that since September-October 1997, the Reang community members had been living in an atmosphere of terror created by the Mizos, with the tacit support of the local administration and police. As a result of this, over 30,000 Reangs left Mizoram for Tripura. There were apparently several incidents of killing, rape, abduction and burning of houses by the Mizos. The condition in the refugee camps established by the Government of Tripura was also not satisfactory. The petitioners requested intervention by the Commission.

            The Commission called for reports from Governments of Mizoram, Tripura and Assam. The Government of Tripura in their report stated that although the influx of Reangs started with about 10,000 people in October 1997, the number had gone up to 30,000. The Government of Tripura was finding it difficult to bear the burden though they were financially helped by the Government of India. They mentioned that efforts made to persuade the refugees to return to Mizoram had failed.

            The Government of Assam in their reply stated that some families had gone into the Karimganj and Balkandi districts of Assam and were living there in forest villages, earning their living by labour on daily wage basis. No refugee camps had been set up. However, medical aid was being provided.

The Government of Mizoram in their reply stated that the administration was making efforts to take action against the local Mizos who had indulged in burning of houses of some Reang families. It was the demand of the Group National Union of the Reangs for an autonomous district council and the murder of a Mizo forest guard by suspected Bru-Reangs militants, which led to violence between the two communities. Some arrests had been made in this regard. The refugees had been requested by the Home Minister of Mizoram to return and they were also given Rs.2,000/- for reconstruction of their houses and a week’s ration. However, some of the Reangs received the amount and again went back to the refugee camp in Tripura. The Ministry of Home Affairs also confirmed this position and stated that the matter was being closely monitored.

            Shri Sudarshan Agarwal, Member, NHRC and Shri R.C. Jain, Registrar General visited the spot to make an assessment of the situation. The Special Rapporteur Shri Chaman Lal was also deputed to meet the Reang refugees and make a report on their problems. According to his report there were certain inadequacies in the arrangements made at the refugee camps. The Special Rapporteur made certain recommendations to improve the situation. Shri Agarwal, Member, NHRC held a meeting with Chief Secretary, Tripura and other concerned officers who were requested to implement the recommendations of Shri Chaman Lal on a time bound basis. The Member, NHRC also held separate meetings with the petitioners who emphasised the urgency for settlement of the issue since they had serious apprehensions about their security in Mizoram. The Member, NHRC subsequently held meetings with Chief Secretaries of three States and the Additional Secretary of the Ministry of Home Affairs. It was made clear to the Government of Mizoram that there is a specific provision in the Mizoram Accord regarding the protection of rights and privileges of minorities of their economic and social development by the Government of Mizoram. The Ministry of Home Affairs assured Government of Mizoram that para-military forces in adequate strength would be provided to the Government for ensuring safety and security of the repatriated families. The Government of Mizoram was reminded of their constitutional obligations to take back the refugees and ensure their peaceful settlement in the villages.

            The Commission, taking into consideration the reports from Member, NHRC and Special Rapporteur made the following recommendations:

(i)                   The Reangs are lawful inhabitants of Mizoram and the Government of Mizoram should not only take them back in accordance with the agreement made in November 1997, but should also instill in them a sense of confidence and security.

(ii)                 The Government of India should play an active role to arrange repatriation of the Reangs to Mizoram and should also give special attention to the safety and security of the Reangs on their return to Mizoram.

(iii)                The Ministry of Home Affairs and the State Governments of Mizoram and Tripura shall keep the Commission informed of the progress made at regular intervals.

The Commission has received reports from the Governments of Tripura, Mizoram and the Government of India with regard to the action taken on its recommendations.

HUMAN RIGHTS VIOLATIONS BY SECURITY FORCES

CUSTODIAL DEATH OF RAMASO SHINGANAISUI, A FARMER OF AWANGKHULIN IN THE CUSTODY OF SECURITY FORCE PERSONNEL

Case No.49/14/97-98/ACD

            William Wekselman of Pittsburgh, USA and three others petitioned the Commission alleging that, on 17 July 1997 at about 8.45 AM, an Assam Rifles convoy was ambushed by members of the armed opposition near the Saint Savio English School, Ukhrul District, Manipur. Later, at about 10 AM on that day, Shri Ramaso Shinganaisui, a farmer of Awangkhul Ukhrul town was arrested by the Assam Rifles in connection with the said ambush and he was reported dead at 4 PM on the following day. The complainant alleged that this was a case of extrajudicial execution and requested the Commission to inquire into the matter, identify the persons responsible for the said killing and subject them to appropriate criminal, civil and administrative sanctions as provided by law.

            The report received from the army authorities confirmed the ambush of the convoy of six vehicles belonging to 20 Assam Rifles by Naga Armed underground elements near Savio English School at Ukhrul on 17 July 1997 at about 8.45 AM in the course of which there was heavy exchange of firing resulting in injuries to 5 Assam Rifles ‘other rank’ officers and 24  civilians. The report also stated that subsequent to the ambush a cordon and search operation was carried out in which some civilians, including the late Ramaso were rounded up and brought to Battalion Headquarters at Samsai for questioning. On the intervening night of 17 and 18 July 1997, at about 0100 hrs. when being questioned, Ramaso complained of chest pain and he was immediately evacuated and was administered necessary medical aid. But his condition deteriorated and he expired around 0130 hrs. on 18 July 1997. His body was handed over to the civil police at Ukhrul on 19 July 1997 at about 1730 hrs. A staff court of inquiry investigated into the circumstances leading to the death of Ramaso and concluded that the death was due to “shock and haemorrhage as a result of multiple blunt force injuries homicidal in nature.” The Court of Inquiry also found certain officers of the 20 Army Rifles Unit responsible for various acts of commission and omission leading to the death of Ramaso in the custody of the unit and recommended disciplinary action against Capt. S.V.Yadav, Officer-in-charge of the interrogation team and action against Havildar Chhhetri, Havildar M.R. Singh and Rifleman S.K. Sharma for beating Ramaso to death.

            The Commission, on a consideration of the entire facts and circumstances and the material brought on record, was not satisfied with the proposed disciplinary action against the Havildars who were directly responsible for causing injuries to Ramaso leading to his death and therefore recommended to the Government through the Secretary, Ministry of Defence, that a court-martial be held against them for the offence(s) which were shown to have been  committed by them and also recommended the payment of a sum of Rs.2.5 lakhs to the next of kin of the deceased.

COMMENT

            Article 21 of the Constitution provides for the “Right to Life,” which is a fundamental right without which other rights cannot be realised. Custodial violence is prohibited by the laws of India as well in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture.  Keeping this in view, the Commission, soon after its establishment in October 1993, issued instructions to all States and Union Territories to submit a report on any instance of custodial death or rapes within 24 hours of occurrence. In its Annual Report for 1996-97, the Commission recommended that paramilitary forces and the armed forces should also report directly to the Commission any instance of death or rape that may occur when a person is in their custody. As in the case of allegations of custodial death or rape involving the police, the Commission is convinced that any such charges against Members of the Armed Forces must be inquired into promptly and effectively. This recommendation was reiterated in subsequent Annul Reports.

JAWAN RAPES MENTALLY DISTURBED GIRL IN PUBLIC – ASSAM

Case No.27/3/1999-2000

            The Commission took suo motu cognizance of a news item published in “The Statesman” dated 20 April 1999 entitled “Jawan rapes mentally disturbed girl in public” and directed that a report be had from the Secretary, Ministry of Defence in the matter.

            The report from the Ministry of Defence confirmed the allegation that one Ajit Singh had raped ABC (name withheld to protect identity), a 15 year old mentally deranged girl and that an FIR was lodged by a civilian. The girl was examined medically and the Medical Officer had confirmed the offence. Ajit Singh was arrested and placed in military custody. Summary General Court Martial tried Ajit Singh and awarded him 8 years rigorous imprisonment and dismissal from service.

            The Commission while taking note of the action taken by the Military authorities against the accused, expressed the view that the victim, ABC, a mentally disturbed girl also needed to be compensated. It accordingly directed the District Magistrate, Kokrajhar to pay a sum of Rs.25,000/- to the parents of ABC by way of immedite interim relief.  The Commission has received a compliance report with regard to the payment of compensation.

OTHER IMPORTANT CASES

ALLEGED KILLINGS OF 18 PERSONS BY MASKED GUNMEN IN BARAMULLAH DISTRICT: JAMMU & KASHMIR

Case No.163/9/1998-99

            Shri Ghulam Mohammad Bhat, an office bearer of Jamaat-E-Islami Party, Srinagar, Jammu & Kashmir complained of the killing of 16 persons and critically wounding of 2 others in District Baramullah, allegedly by masked gunmen commonly known as ‘Ikhwanies’.  In his complaint dated 28^th September, 1998, he stated that these surrendered militants were allegedly used by the political parties and other government agencies.  He added that Jamaat-E-Islami J&K leaders and cadres and even their relatives were feeling insecure and their right to life, property, honour and dignity threatened.

            On 20 October, 1998, the Commission decided to take up the matter during its next visit to Jammu & Kashmir.  On 30 October 1998, it also issued notice to the Chief Secretary and the Director General of Police, Government of Jammu & Kashmir calling for a report.

            In response, the Commission received an interim report dated 18 May 1999 from the Home Department, Government of J&K giving details of the killings.  The Commission directed on 2 August, 1999 that it be transmitted to the complainant for his comments and asked the State Government to send its final report.  The Commission subsequently received the final report.  Upon perusing it, the Commission on 8^th September, 1999 observed that it was disquieting that 18 persons had admittedly lost their lives allegedly at the hands of counter insurgency elements, allegedly acting under the protection of the police.  According to the report, the assailants had not been traced. While it is not possible, in the absence of evidence, to say that the killings were the result of the activity of alleged counter insurgency elements who are acting under the protection of the State Authorities, the Commission noted the fact that in none of the 18 cases, the assailants had been traced. 

The Commission, therefore, requested the Director General of Police, J&K to be present before the Commission to discuss this issue further.  On 6^th December, 1999, the Director General of Police, J&K appeared before the Commission. Not satisfied with his response, the Commission, however, acceded to his request for grant of more time to study all the relevant papers and to gather all the relevant information to be able to assist the Commission in this case in a proper manner.  On 22 December, 1999 he reappeared before the Commission and promised to send an interim status report.  On 10 January 2000, the Inspector General, Jammu Range gave an overall view of the current status of investigation in these cases.

 Pursuant to Commission’s efforts, DGP, J&K reported that inquiry into the cases of killings of all 18 persons had been reopened and was being supervised by an officer of the rank of Inspector General of Police. Reports received in these cases after the current reporting period under review was over have revealed that  the  killings of these persons were the result of a factional infighting between Jamaat-E-Islami activists and Hizb-ul-Mujahideen cadres. The cases will be covered in greater detail in next annual report of the Commission.

KILLING OF 35 SIKHS BY MILITANTS IN CHATISINGHPORA:   JAMMU & KASHMIR.

Case No.206/9/1999-2000

            The Commission took suo-motu cognizance of reports dated 22 March 2000, which appeared in all leading newspapers, concerning the killing of 35 members of the Sikh community in Chatisinghpora village of Anantnag District during the night of 21 March 2000 by heavily armed militants.  It was stated that all those killed were men, aged between 16 and 55.  Later, a woman died of shock on seeing the bodies of those killed.  Atleast two families lost all of their male members. The incident occurred a few hours before the President of the United States of America was to begin an official tour to India.  The Commission issued notice to the Chief Secretary and Director General of Police, Government of J&K as well as to the Secretary, Ministry of Home Affairs, Government of India calling for detailed reports.   As of the close of the period under reporting, the Commission was pursuing this matter.  

MASS CREMATION OF UNIDENTIFIED DEAD BODIES BY PUNJAB POLICE : REFERRAL BY SUPREME COURT

Case No.1/97/NHRC

           A reference to this case was made in the annual reports of the Commission since 1996-97. Having considered the objections and issues raised by various parties in detail, particularly in regard to the legal provisions as well as the facts and circumstances, the Commission passed an Order on 4 August, 1997, disposing of the preliminary issues.

           In regard to the objection relating to the time limitation on its jurisdiction, the Commission took the position that the Supreme Court, by its Order had designated the Commission as a body sui generis to carry out the functions and to determine issues as entrusted to it by the Supreme Court. “The shackles and limitation under the Act are not attracted to this body as, indeed, it does not function under the provisions of the ‘Act’ but under the remit of the Supreme Court”. “As a logical consequence, the powers of the Commission in carrying out this mandate are not limited by Section 36(2) or other limiting provisions, if any, under the ‘Act’,” the Commission ruled.

           The Commission also “answered in the negative” the objections relating to the legality of the alleged delegation of authority by the Supreme Court, stating that the Court’s order made it clear that it had “not created any exclusive final adjudicatory jurisdiction in the Commission”, but implied that “the Commission discharged its functions as an instrumentality or agency of the Court”.

           The Commission further stated that  it would need to augment greatly its logistical capability; it would have to induct officers with judicial experience to record and process the evidence and conduct enquiries under the directions of the Commission and recommend appropriate compensation subject to final endorsement by the Commission.

             On receipt of the above Order of the Commission, the Ministry of Home Affairs filed a petition seeking clarification of the Supreme Court’s Order of 12 December 1996, in the light of Commission’s orders settling the objections of the Government of India and laying down modalities which it intended to follow in pursuing the inquiry into this case. On 10 September 1998, the Supreme Court disposed of the said petition, upholding the stand of the Commission that it was a body sui-generis, in addition to it being a body sui-juris created under the Act of Parliament.  The Supreme Court criticised the Union Home Ministry for the various objections raised by it before the Commission, and for later approaching the Court for clarifications which had led to delay in providing relief to the affected families.

           Thereafter, the Commission proceeded to examine the scope of the enquiry which it was required to undertake under the remit of the Supreme Court’s order dated 12 December 1996.  While it was contended on behalf of the petitioners that the Commission was required to inquire into all incidents of what were referred to as ’extra–judicial eliminations’, or involuntary disappearances , ‘fake encounters’, ‘abductions’ and ‘killings ‘ etc., alleged against the Punjab Police during the decade 1984-1994, the Union Government and the State of Punjab contended that the inquiry should be restricted only to the 2097 cases of cremation of bodies - 585 fully identified, 274 partially identified and 1238 un-identified – in the police districts of Amritsar, Tarn Taran and Majitha.

           After hearing the Counsel for the parties, the Commission in its order dated 13 January 1999 settled the scope of inquiry under the Supreme Court’s direction, by holding that it was limited only to those illegal killings/ disappearances that culminated in the cremation of 2097 bodies (585 bodies fully identified, 275 bodies partially identified and 1238 bodies unidentified) in the crematoria located at Durgyana Mandir, Patti Municipal Committee Crematorium and Tara Taran which were also the subject matter of inquiry by the CBI in pursuance of the order of Supreme Court dated 15 November 1995. The contention that the Commission should undertake the investigation of all the alleged police killings in the State of Punjab was not found to square or reconcile with the express terms of the Court’s remit.

           As a sequel to the order on the scope of the inquiry, the Commission in a separate order of 13 January 1999, laid down the modalities for the conduct of further proceedings.  The Commission directed that a public notice be published in the newspapers having circulation in and around the District of Amritsar  for inviting applications/claims, by 10 March 1999.  The Commission clarified that the initial burden was on the State Government to establish that the cremations, undertaken by the police were in accordance with the procedure prescribed by law.  The Commission directed the State Government to file on or before 10 March 1999 a list of all the cremations done by the police in respect of un-claimed/ un-identified bodies in the crematoria of the police districts of Amrtisar/Majitha/Tarn Taran between June 1994 - December 1994.  The order also provided for the setting up of a separate cell for dealing with this inquiry, and directed the Government of Punjab to deposit initially a sum of Rs.25 lakhs  with the Commission before 15 February 1999.  This was complied with by the Government of Punjab.

           The petitioners moved a petition for a review of Commission’s order dated 13 January 1999 seeking enlargement of the scope of the inquiry so as to cover the extra judicial killings and disappearance in whole of the State of Punjab.  The Commission, vide its order dated 24 March 1999, declined any such extension of the scope of the inquiry.

           Pursuant to the public notice issued by the Commission, 88 claims were received which have been processed. Out of these 88 applications, the comments of State of Punjab were invited.  In 23 applications, the State of Punjab have informed that the individuals who have made claim applications had stated that their relatives were not cremated in three police districts of Majitha, Tarn Taran and Amritsar.  These 23 applications were straight-away rejected by the courts as they were not covered by the remit of the Supreme Court of India.  As regards 18 applications, the Government of Punjab agreed to pay compensation as per its policy.   For the remaining 47 claim applications, the Commission directed Shri R. Venkataramani, Sr. Advocate as amicus curiae to have discussion with the Counsels of the State of Punjab as well as with the Punjab police officers.  In the meanwhile, the Punjab police officers approached the Commission with a request that the CBI officers had not been supplying the relevant information about the cases which were being investigated by that agency.  On 30^th November 2000, the Commission directed the CBI authorities to make available all the information which was required by the State of Punjab so that they might be in a position to process the remaining 47 claim applications.  

           The Commission has been aware of the concerns expressed in certain quarters that the scope of the enquiry by the Commission should be enlarged and that the Commission should make a reference to the Supreme Court seeking clarification on the scope of the enquiry remitted to it.  As these and other issues were brought up before the Commission after the current reporting period, these issues will be covered in greater detail in the next Annual Report.