Armed Forces, Para-Military Forces
Firing by Security Forces in Bijbehara, J&K
Alleged killings of civilians in Ukhrul Town, Manipur, in crossfiring between 20 Assam Rifles and NSCN
Alleged death of Muhammad Akbar Sheikh in armed forces custody, Baramulla Distt. J&K
Alleged death of Allen Kuki of Kholjang Village, Manipur, in custody of the armed forces
Death of Kheshiho Sumi in the custody of the armed forces (Assam Rifles) in Nagaland
Jawan rapes mentally disturbed girl in Public, Assam (CASE NO:27/3/1999-2000)
Complaints against Security Forces: Highhanded Acts of Army Personnel, Andhra Pradesh (CASE NO:67/1/1999-2000)
Procedure with respect to complaints against Armed Forces: Disappearance of Mohammed Tayab Ali, who was last seen in the company of Para-military forces (CASE NO:32/14/1999-2000)
Firing by Security Forces in Bijbehara, Jammu & Kashmir
On 1 November 1993, the Commission, suo motu, took cognizance of press reports about the death of about 60 persons in and around Bijbehara in Jammu & Kashmir, as a result of firing by security forces operating in the areas and called for reports from the Ministries of Defence and Home Affairs as also the Government of J&K
While the Ministry of Defence clarified that the army was not involved, the Ministry of Home Affairs sent a report to the Commission on the basis of the Magisterial Inquiry ordered by the State Government into the incident and the Staff Court of Inquiry ordered by B.S.F. authorities. On examination of the report, the Commission felt that perusal of copies of evidence given by six witnesses was necessary and accordingly called for additional material viz, the evidence given by the witnesses. That evidence having been made available to the Commission and considered by it, together with the report and material provided earlier, the Commission made the following observations/recommendations:
(a) The Commission noted that disciplinary proceedings had been initiated under the Border Security Force Act against 14 members of the Force, and further that, on the basis of a Magisterial Inquiry, steps may be initiated to launch prosecutions. The Commission expected that the dual proceedings would be pursued their respective logical ends and that it would be kept informed of the action taken against those found guilty.
(b) Payment was recommended of interim compensation on a graded scale.
(c) It was recommended that a thorough review should be undertaken by Government of the circumstances and conditions in which Units of the Border Security Force are deployed and expected to operate in situations involving only civilian population.
These were communicated to the Central Government and the Commission has since been informed that the recommendations made by it have been accepted.
Alleged killings of civilians in Ukhrul town, Manipur, in crossfiring between 20 Assam Rifles and NSCN
On a complaint dated 9 June 1994, received from the Committee on Human Rights (COHR), Manipur regarding the death of civilians caught in cross-fire between the 20 Assam Rifles and elements of the NSCN, the Commission called for a report from the Ministry of Defence. The COHR complaint alleged that the firing by the Assam Rifles had been indiscriminate, that civilians had been detained illegally, that there had been acts of physical torture and the looting of cash and valuables and the destruction of properties by the Assam Rifles. It was further alleged that this was in retaliation, consequent to the killing of two Assam Rifles Officers earlier by NSCN guerillas.
In their report of 6 December 1994, Army Headquarters stated that NSCN insurgents had shot two Assam Rifles Officers on duty, in an ambush in Wino Bazar of Ukhrul town, without any provocation. When the wounded officers were being rushed to hospital, the insurgents fired at them again, as a result, the two officers succumbed to their injuries and four others sustained injuries. The Quick Reaction Team of the Assam Rifles cordoned off the area to search for the insurgents. Peace meetings were arranged with prominent church leaders and others of Ukhrul town, along with the District Collector and Superintendent of Police; these gestures were appreciated by all. The Court of Inquiry set up by the General Officer Commanding also expressed the opinion that maximum restraint was exercised by the armed forces and that, contrary to the allegation that 20 mortars were fired, only 2 fired, and that the Assam Rifles unit had not engaged in torture, illegal detentions or looting.
After considering the report of the Ministry of Defence (Army Headquarters) the Commission was satisfied with the response of the armed forces, including the follow-up action taken by them to restore peace. The Commission, however, recommended in its proceedings of 9 February 1995, that compensation of Rs. 50,000/- be paid to the next of kin of each of the 3 civilians killed in the cross-firing.
The Ministry of Defence issued instructions on 31 March 1995 for the payment of the compensation, as recommended by the Commission.
Alleged death of Muhammad Akbar Sheikh in armed forces custody, Baramulla district, Jammu & Kashmir
Inhabitants of a cluster of villages in Barwah tehsil of Baramulla district, Jammu & Kashmir, submitted a written complaint to the Commission alleging the death, in the custody of the armed forces, of Muhammad Akbar Sheikh on 27 December 1993. It was asserted that he was seized during an army crackdown in the area on that date and that his dead body was handed over to the police in Baramulla on 29 December 1993.
Proceeding under Section 19 of the Protection of Human Rights Act 1993, the Commission called for reports from the Defence and Home Ministries. The reply of the Defence Ministry, dated 6 September 1994, forwarded a report from Army Headquarters. According to that report, the 15 Punjab Regiment was involved in an operation against militants on 27 December 1993 around the village of Fategarh. Tehsil Barwah, District Baramulla. A cordon was established at 0700 hours and a search started at about 0900 hours.
All male adults were collected at the local government high school. Muhammad Akbar Sheikh agreed to assist one of companies of the unit in the matter of the search. Five hideouts were shown to the search party and weapons and ammunition too were recovered. The search continued till 1800 hours. The period being the last week of December 1993, the weather was harsh and the terrain difficult. The report attributed the death of Muhammad Akbar Sheikh to exhaustion.
After carefully analyzing the report, the Commission observed that it was apparent that the deceased had been totally exhausted. The valley was in the grip of severe cold at that time. The record further indicated that Muhammad Akbar Sheikh was not a man in normal health. In such circumstances, it was the obligation of those who wanted to utilize his services for the purpose of the search, to take proper care of him. It was evident that exhaustion in this case was the result of the strain put upon him by the search party. Though the case was not one of custodial death, the situation was more or less akin to it.
After considering all aspects of the case, factual and legal, the Commission was of the opinion that Muhammad Akbar Sheikh's life could have been saved if appropriate care had been taken of him by the armed forces. Holding the latter responsible for negligence in the death of Muhammad Akbar Sheikh, the Commission directed the Ministry of Defence to pay Rs. 50,000/- as compensation to the legal heirs of the deceased.
Accepting the recommendations of the Commission, the Ministry of Defence issued a sanction order on 2 December 1994 for the payment of the compensation. The Commission took note of this on 22 December 1994.
Alleged death of Allen Kuki of Khoijang village, Manipur, in custody of the armed forces
On the basis of a press report appearing in The Statesman of 9 March 1994, alleging that a Kuki rebel had died in the custody of the armed forces, the Commission called for a report from the Ministry of Defence.
The latter replied, providing a report from Army Headquarters. According to that report, during the night of 5-6 March 1994, village Kholjang was cordoned by the 4th Regiment of the Assam Rifles for apprehending certain persons who were reportedly hiding in the village. Around 0330 hours, three persons where seen coming towards a group of the security forces. On being challenged, those persons opened fire and the security forces returned fire. One of those persons, later identified as Allen Kuki, jumped into a nullah full of boulders and bamboo stumps to evade capture. The report mentioned that Allen succumbed to injuries at about 1530 hours on that day.
After a thorough examination of the facts stated in the report, the Commission noted that Allen had been taken into custody at about 0330 hours but that no medical help had been provided to him, nor any attempt seemingly made in this respect, until his death about 12 hours thereafter. The Commission observed that it was the obligation of the security forces, who held Allen n custody, to take steps for his immediate treatment and that the obligation arose the moment Allen came into their custody in an injured condition.
Quoting from the Supreme Court's observations in the case of Pandit Paramanand Katia versus Union of India and others (1989), the Commission's order pointed out that "there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored. Whether he be an innocent person or a criminal liable to punishment under the laws of society, it is the obligation of those who are in charge of the patient to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to be tantamount to legal punishment".
The Commission was of the view that what the Apex Court held in the aforesaid decision, applied equally to the situation where a public authority had physical custody of an injured person. The Commission observed "There is no material in the report to indicate the nature of injuries he had received by jumping into the nullah. We have, in the circumstances, to assume that if timely treatment had been provided to Allen, his life could have been saved and the captors have failed to conform to their obligation under the law. In such circumstances, compensation is payable to the next of kin of Allen. Ordinarily, for loss of life, compensation of Rs. 50,000/- to Rs. 1,00,000/- is being given depending upon the different situations in which death occurs. From the report, it appears that Allen had voluntarily jumped into the nullah to avoid capture. We are of the view that compensation of the sum of Rs. 50,000/- would meet the ends of justice".
The Army authorities have indicated that the amount of compensation recommended by the Commission has been paid to the mother of the deceased.
Death of Kheshiho Sumi in the custody of the armed forces ( Assam Rifles) in Nagaland
Upon the intervention of the Commission, the Ministry of Defence has sanctioned a sum of Rs 100,000/- to the next of kin of Kheshiho Sumi, who died in the custody of the Assam Rifles.
The Commission initiated a proceeding on the basis of a report received by it from the Superintendent of Police, Dimapur, Nagaland indicating the custodial death of Kheshino Sumi . Upon notice, the Ministry of Defence reported to the Commission that Kheshiho Sumi was arrested on 12 November 1994 from Purana Bazar as he was observed to be movingaround in a suspicious manner. Two days later, while he was reportedly being taken by the Assam Rifles on a mission to uncover the hide out of insurgents, it was stated that Kheshiho jumped from a running vehicle with a view to escaping andwas injured in the process. After being found in a ditch, the report added that Kheshiho was taken to the civil hospital, Dimapur but that the doctor on emergency duty declared him dead. According to the defence authorities, the salient fact which emerged from the court of enquiry proceedings was that Kheshiho was actively involved in the activities of the outlawed National Socialist Council of Nagaland (IM) and that he was neither maltreated nor beaten after his apprehension.
Upon perusing the report, the Commission noted that, under the Armed Forces (Special Powers)Act, 1958, admittedly in force in the area,"Any commissioned officer warrant officer, non-commissioned officier or any other person of equivalent rank in the armed forces may, in a disturbed area, arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest". Section 5 however requires that any person arrested and taken into custody under the Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances ocasioning the arrest.
The Commission also noted that the Guwahati High Court in a judgement in the case of Purnima Barua vs. Union of India (1991 CRI.L.J 2675) and others interpreted the term "least possible delay" in the following manner:"Whenever the question "least possible delay" arises for decision in computing the period of time, the Court has to have regard to the particular circumstances of the case-physical impossibility or otherwise-to make over the arrested person to the nearest police station, and how, where and in what circumstances the arrest was effected."
The Commission observed that it was the obligation of the Assam Rifles to hand over Kheshiho to the Dimapur police on 12 November itself after he was arrested, and that they were not entitled to keep him in their custody for carrying out any investigation. The Commission held that the act of keeping Kheshiho in their control after arrest was contrary to the provisions of Section 5 of the Armed Forces (Special Powers) Act 1958 (Act 28 of 1959). The Commission noted that the obligation to make over the arrested person to the civil police without delay itself ruled out the legal authority of the investigation by the Assam Rifles. The Commission, therefore, observed that the attempt to engage the deceased in the search of hideouts of insurgents for two days following his arrest was an unauthorized act. It was also felt that, as custodians of Kheshihi, who was injured, the Assam Rifles were under legal obligation to provide prompt and adequate medical care. They were found to benegligent in discharging this obligation.
After a detailed analysis of all the facts stated in the report, the Commission observed that:
I) the"detention of Mr. Kheshiho from 12 to 14 November 1994 was unauthorized and illegal;
ii) taking him out for recoverieswas a part of an attempt to investigate into the alleged offences andwas a matter without jurisdicition so far as Assam Rifles are concerned; and
iii) the explanation about death is not very impressive and at any rate, if due care had been taken, even accepting the fact that he was found unconscious at 5.30 P.M with the injuries said to have been suffered, he might have been saved."
In the absence of positive evidence of assault, theCommission noted that it was not in a position to hold that Kheshiho died on account of physical torture. However, the Commission pointed out that this case involveda violation of law and therefore, recommended compensation of Rs. 100,000/- to the next of kin of Kheshiho Sumi. The Commission has received a report from the Ministry of Defence indicating that its recommendation has been complied with. As indicatedin paragraph 4.3 of this report, the Commission has also begun a process of examining the Act and has asked for the comments of the Central Government on it.
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.
Complaints Against Security Forces: High-Handed Acts of Army Personnel: Andhra Pradesh.(Case No. 67/1/1999-2000)
In a decision dated 1 November 2000, the Commission made far-reaching recommendations to the Ministry of Defence, Government of India to compensate farmers of Andhra Pradesh who were victims of actions taken against them by personnel of the army.
The Commission had, on 19 May 1999, taken suo-motu cognizance of a report stating that some 300 army personnel had gone on a pre-dawn rampage in Hyderabad and had attacked farmers who had come to sell their produce at Rythu Bazaar in that city on 12 May 1999. They threatened the farmers who were sleeping in the compound and severely beat up four of them who had protested. The losses incurred during the incident were estimated by the district administration to amount to some Rs. 12 lakhs. The farmers had occupied sheds set-up at the Bazaar by the State Government on military land with the permission of the army authorities. The State Government had condemned the action of the army personnel for taking the law into their own hands and had lodged a strong protest with the Defence Minister and Army Headquarters.
In reply to a notice from the Commission, the Ministry of Defence had justified the action of the army men in forcibly evicting the farmers. The reply stated that the State Government had backtracked on its assurance to vacate the area within the specified period for which it had been given on lease by the army. The Ministry denied the violation of any human rights by the army.
On the other hand, the report of the Collector of Ranga Reddy District, who was an eyewitness to the whole incident, said that despite her pleadings, hundreds of military personnel had demolished the property erected at Rythu Bazaar while she and the police personnel who were present at that time could only remain silent spectators. Around 80 farmers who were at the site at the time of the incident were manhandled and four of them were seriously injured. Vegetables worth Rs. 1.7 lakhs were strewn around and the temporary structures erected were irreparably damaged. The total damage worked out to Rs. 11.26 lakhs. Photographs supported the Collector’s eyewitness report.
The Commission, on considering both these responses, recorded in its proceedings of 20 September 1999 that the two reports, from two responsible and highly placed functionaries of the Central and State Governments, were in total variance. It observed that the pertinent question was whether or not the army personnel had committed high-handed acts. Therefore, it requested the Secretary, Ministry of Defence, to get the entire matter examined, including the aspect of the propriety of the Ministry in making such sweeping denials of events in the face of an apparently authentic report of senior officers of the State Government.
The Commission also requested the Chief Secretary, Government of Andhra Pradesh to examine both the responses and give his own report. The report of the Chief Secretary clearly pointed to the high-handedness of the army personnel and made the disturbing observation that the role of the Andhra Pradesh Sub-Area Commander in the incident had been questionable. The Chief Secretary’s report was also sent to the Ministry of Defence for its response.
The Ministry of Defence, however, reiterated its earlier version and asked the Commission to call the concerned officers of the Army and State Government and take a view in the matter. However, in the meeting called by the Commission on 6 September 2000, the concerned army officials chose not to come and were represented only by the Civilian Staff Officer of Army Headquarters.
The Commission therefore had to formulate its opinion and consider the allegation of the violation of human rights of the victims based on the facts and circumstances of the case. The Commission had no hesitation in rejecting the version of the army authorities, which was in direct conflict with the version of the State Government. Certain admitted facts and circumstances also supported this conclusion of the Commission.
The Commission also learned that the State Government, keen to ensure the continuance of the Bazaar in the same location, had already moved for this land to be exchanged with some other land of the State Government, which could be given to the army instead. Discussion in this regard was in progress between the State Government and the Army and the Sub-Area Commander had been requested to await the final outcome of this discussion. Thus, there was no occasion for the District Collector to tell the Sub-Area Commander to carry out the eviction, as had been alleged by the Army. Moreover, the unusual time of early morning chosen for carrying out the surprise action, without any prior notice to the occupants or to the District Collector, supported the allegation of high-handedness by the Army men and their intention to take even the State Government by surprise.
Rejecting the clandestine and unlawful action of the army men, the Commission said, "a civilised legal system does not permit even a trespasser with settled possession to be thrown out in this manner without resort to the procedure established by the law".
The Commission thus directed the Ministry of Defence, Government of India to pay a sum of Rs. 12 lakhs as compensation for loss to property, a sum of Rs.10,000 to each of the four farmers beaten up by the army men and a sum of Rs. 5000 to each of the farmers forcibly evicted. The Government of India was asked to pay the above amounts, granted as `immediate interim relief’ under section 18(3) of the Protection of Human Rights Act, 1993, to the Government of Andhra Pradesh. The calculation of the total amount was to be made by the Chief Secretary, Andhra Pradesh and intimated to the Secretary, Ministry of Defence within one month. The Government of India was asked to pay this amount to the Government of Andhra Pradesh within one month thereafter, for disbursement among those entitled, within one month.
The Government of India was also asked to consider initiating proceedings to identify the army personnel responsible for the violation of human rights in the above incident and to take appropriate action against them. The Ministry of Defence was, further, asked to formulate necessary guidelines for the observance of human rights of the civilian population by the Armed Forces while performing their duties in non-combat areas.
In concluding, the Commission emphasised the urgency and need for amending the Protection of Human Rights Act, 1993 to empower the National Human Rights Commission to inquire more effectively into human rights violations by the Armed Forces. Any further delay or inaction, it observed, was likely to erode the credibility of the Government of India in its commitment to respect human rights.
The Commission has since been informed of compliance with its directives in this case.
Procedure with respect to complaints against Armed Forces: Disappearance of Mohammed Tayab Ali, who was last seen in the company of para-military forces (Case No. 32/14/1999-2000)
The Commission received a complaint from Smt. Mina Khatoon, resident of District Imphal (East), which was referred to it by the Manipur State Human Rights Commission, alleging the disappearance of her husband Mohammed Tayab Ali on 25 July 1999 after he was taken away to the headquarters of the 17 Assam Rifles Battalion. He had not been seen thereafter.
The Commission considered the report submitted by the Ministry of Defence and, in the light of the evidence on record, including the deposition of witnesses, who stated that they had seen Mohammed Tayab Ali being picked-up by security men, held that the security forces were liable for the disappearance of Mohammed Tayab Ali. The Commission accordingly awarded a sum of Rs.3 lakhs as immediate interim relief, u/s 18(3) of the Act, to the complainant. A compliance report is awaited.
Given the importance of this case, particularly in respect of the procedure to be followed in regard to complaints submitted against the armed forces, relevant extracts of the proceedings of the Commissions in this case are being reproduced verbatim below:
Mohammed Tayab Ali was seen being picked up in the Maruti van and being taken to the battalion headquarters of 17 Assam Rifles. His relatives and friends also made attempts to reach him at 17, Assam Rifles on the same day, but failed. Pursuant to a notice issued by the Manipur State Human Rights Commission to the Inspector General of Police (Law and Order) to ascertain the whereabouts of Mohd. Tayab Ali, the Inspector General of Police (Law and Order), Manipur submitted his inquiry report to the State Commission. It stated that the Director General of Police, Manipur, Imphal had issued crash messages to all concerned police authorities in the State of Manipur for flashing the information regarding whereabouts of Mohd. Tayab Ali. It had also taken up the matter with the Commander, Manipur Range. On 22 August 1999, the Staff Officer of Commander, Manipur Range, Imphal informed the Director General of Police, Manipur that the case of the alleged arrest of Mohd. Tayab Ali of Kairang Muslim village was investigated and inquiries were made from 17 Assam Rifles and all other units in that behalf. It was confirmed by them that no individual by the name of Mohd. Tayab Ali was picked up by 17 Assam Rifles or any other Assam Rifles unit.
After receipt of this report, the State Commission summoned the complainant Smt. Mina Khatoon in order to find out if her husband had been located. She appeared before the Commission and reiterated that her husband was last seen being carried in a Maruti van to 17 Assam Rifles campus at Kangla, Imphal. She also filed some photographs of her husband.
On consideration of the entire matter, the State Commission referred the case to this Commission as it relates to the ‘armed forces’. On receipt of the reference from the Manipur State Human Rights Commission this Commission issued notices to the Ministries of Defence and Home Affairs, Government of India and called for a report in accordance with Section 19 of the Protection of Human Rights Act, 1993. The report of the Ministry of Defence received with their letter dated 11 April 2000 stated that on 25 July 1999, at around 9.45 hours, information was received that some valley based insurgents after firing on CRPF personnel at Langjing were fleeing towards Dimapur. A column of 17 Assam Rifles accordingly established a Mobile Check Post. Apparently, one of the vehicles attempted to speed towards Dimapur. The security team stopped the vehicle. There was an exchange of fire and one individual died. The driver of the vehicle managed to escape with the vehicle. This body was later identified as that of Mohd. Tayab Ali. It was handed over to Kangpokpi police station on 25 July 1999. Thus the Defence Ministry’s report concluded that Mohd. Tayab Ali had died in retaliatory fire opened by the personnel of the armed forces. Hence no cognisance could be taken of the complaint submitted by Smt. Mina Khatoon. This was a totally different and inconsistent stand taken by the Defence authorities from the earlier report of DGP Manipur which had denied that any person by the name of Mohd. Tayab Ali was picked up by 17 Assam Rifles or any other Assam Rifles unit. As per the report of the Defence authorities, the body of the person killed in the encounter was handed over to Kangpokpi police station. No attempt seems to have been made by Kangpokpi police station to identify the body despite information having been flashed to all the police stations about the disappearance of Mohd. Tayab Ali. The body was disposed of as unidentified. This Commission, therefore, directed by its order dated 13 December 2000, that the photographs of the dead body of the person killed in the encounter on 25 July 1999 should be shown to the complainant to ascertain whether the photographs were of Mohd. Tayab Ali. The Commission received a letter dated 15 January 2001 from the Director General of Police, Manipur, Imphal stating that the Kangpokpi police station had shown the photographs of the unidentified dead body to the close relatives of Mohd. Tayab Ali, i.e. the complainant Mrs. Mina Khatoon, his wife, Mohd. Tahir Ali, the father and Mohd. Vazir Ahmed, the elder brother of Mohd. Tayab Ali. But none of them could identify the deceased in the photograph and they stated that the body was not of Mohd. Tayab Ali. Thus, it is proved that the person who was killed in an encounter on 25 July 1999 was not Mohd. Tayab Ali.
Thus, facts clearly indicate that Mohd. Tayab Ali while he was travelling on a Luna Moped was picked up apparently by some armed forces men in a Maruti van without any registration number and was taken to the Headquarter of 17, Assam Rifles. There is the unrebutted testimony of several witnesses who had seen him being taken in this fashion. Since then Mohd. Tayab Ali is missing. The stand taken by the Defence authorities that Mohd. Tayab Ali was killed in an encounter on 25 July 1999 must be rejected since the dead body of the person killed in that encounter was not that of Mohd. Tayab Ali. It must, therefore, be concluded that 17 Assam Rifles in whose custody Mohd. Tayab Ali was last seen, has failed to account for him, thereafter. In the case of the Union of India vs. Luithukla (Smt.) and Others, (1999) 9 SCC 273, the Supreme Court considered a similar case where the husband of the first respondent had been taken away by the army personnel. His brother had visited the army camp on the next day and inquired about his brother but no information was given to him. Thereafter, a complaint was lodged with the officer in charge of the local police station. Various attempts were made to locate the missing person but to no effect. The Supreme Court upheld the High Court’s finding that the missing person was last seen in the custody of security forces and was not seen since then. The security forces were, therefore, held liable for his disappearance, and payment of compensation to the wife of the missing person. In the present case also, the facts are similar. The security forces in the present case are, therefore, liable to pay ‘immediate interim relief’ to the complainant for the disappearance of her husband Mohd. Tayab Ali while in the custody of 17, Assam Rifles.
Since the violation of human rights is by members of the armed forces, it is appropriate to examine the provisions of sections 17 to 19 of the Protection of Human Rights Act, 1993 Sections 17, 18 and 19 are contained in Chapter IV relating to the procedure to be followed by the Commission for inquiry into the complaints of violation of human rights, which is one of the functions of the Commission specified in sub-section (a) of section 12 of the Act. Section 17 prescribes the general procedure for inquiring into the complaints; section 18 specifies the steps after inquiry that may be taken by the Commission; and section 19 prescribes the special procedure with respect to armed forces while dealing with such complaints. These sections have to be read together for a proper understanding of the scope of section 19 and the limitations in the special procedure. Sections 17 to 19 are as follows:
Section 17. Inquiry into complaints. The commission while inquiring into the complaints of violations of human rights may:
(1) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it; Provided that:
(a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;
(2) without prejudice to anything contained in clause
(i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry. Section 18. Steps after inquiry The Commission may take any of the following steps upon the completion of an inquiry held under this Act namely:
(1) where the inquiry discloses, the commission of violation of human rights or
negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(3) recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(4) subject to the provisions of clause
(5), provide a copy of the inquiry report to the petitioner or his representative;
(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
(6) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.
Section 19. Procedure with respect to armed forces
(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:
(2) (a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.
(3) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.
(4) (3) The Commission shall publish its report together with its recommendations
made to the Central Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under subsection
(3) to the petitioner or his representative.
Section 17 which prescribes the general procedure for inquiry into complaints of violations of human rights says that the Commission may call for information or report from the concerned government or authority etc.; and on receipt of information or report, if the Commission is satisfied that no further inquiry is required or the necessary action has been taken, it may not proceed further with the complaint. It further says that if it considers necessary, then the Commission may initiate an inquiry. Section 18 mentions the steps after completion of the inquiry. It empowers making of recommendations by the Commission, which include that for initiation of action against the concerned person and also for grant of such immediate interim relief to the victim as may be considered necessary. In the case of armed forces, section 19 prescribes the special procedure, which to the extent indicated therein overrides the general procedure. It is necessary now to examine the restriction made by section 19.
Section 19 begins with the non-obstante clause which indicates that the special procedure prescribed therein overrides the general procedure in its application to complaints of violation of human rights by members of the armed forces. The first step in this procedure prescribed by clause (a) of sub-section (1) is to seek a report from the Central Government as against calling for ‘information’ or ‘report’ prescribed in section 17. Clause (b) of sub-section (1) of section 19 then prescribes the next step, that ‘after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.’ Thus, on receipt of the report there are two options: the first is not to proceed with the complaint, and the other is to make ‘recommendations’ to the Central Government. The first option of not proceeding with the complaint is similar to that in proviso (b) to clause (i) of section 17. Obviously, it refers to the situation where on receipt of the report the Commission is satisfied that there is no need to proceed further with the complaint in order to make its recommendations to the Government. This situation being similar under both provisions, it presents no difficulty. The question is of the scope of Commission’s powers when it is not satisfied with the report received from the Central Government and there is need to adopt the second course, which may lead to making its recommendations to the Government. It is this area which needs a closer look. It is clear that the function of the Commission prescribed in clause (a) of section 12 to inquire into any complaint of violation of human rights includes the power to inquire into such complaints made even against members of the armed forces; and section 19 merely prescribes the special procedure for dealing with such complaints overriding the general procedure under section 17. The power to make recommendations, when necessary, in section 19 must be read along with subsections (1) and (3) of section 18 which deal with the nature of recommendations on conclusion of the inquiry, when closure of the complaint is not considered appropriate. There is nothing restrictive in section 19 to curtail this power of the Commission and the express power to make recommendations leads necessarily to
this conclusion. In other words, the only limitation in section 19 vis-à-vis section 17,
is that under section 19, the Commission cannot proceed to ‘initiate an inquiry’ itself, as it can under section 17(ii) of the Act. Implicit in section 19 is the responsibility of proper investigation by the Central Government to enable it to make the report required under section 19 after examination of the complaint in a fair and objective manner in the light of all relevant facts. This requires ascertainment of the relevant facts and examination of the material disclosed by the complainant. The conclusions reached in the Report forwarded by the Central Government to the Commission, must be the logical outcome of the materials and duly supported by the reasons given in its support. It is settled, that when there is power to do an act, there is power to do all that is necessary for the performance of that act. This is implicit in the provision conferring the power to act. Thus, all that is necessary to make ‘recommendations’ for compliance by the Central Government is implicit in the power conferred in section 19(1)(b) to make recommendations, in case the Commission is not satisfied with the report that it is not necessary to proceed with the complaint. To decide whether to accept the report and not proceed with the complaint or to proceed further, itself requires an objective determination which must be based on relevant materials. The ‘report’ of the Central Government must, therefore, satisfy this requirement and contain all relevant materials to enable performance of the exercise by the Commission. The dictionary meaning of the word ‘report’ includes: ‘to write an account of occurrences; to make a formal report; a statement of facts.’ There is nothing in the context to alter the ordinary meaning. The ‘report’ required to be submitted by the Central Government to the Commission must contain a statement of facts and an account of occurrences and not merely the findings or conclusions reached by the Central Government on facts which are not disclosed to the Commission. This meaning given to the word ‘report’ in section 19 is in consonance with its purpose of enabling the Commission to perform the task of dealing with such a complaint against members of the armed forces. The object of enacting the Protection of Human Rights Act, 1993 (POHRA) is the better protection of human rights and constitution of National Human Rights Commission (NHRC) is for this purpose. Jurisdiction of the NHRC to deal with the complaints against armed forces is subject only to a restricted procedure. The construction made of section 19 and the meaning given to the word ‘report’ therein, promotes the object of the enactment. It has to be preferred. This is a settled canon of interpretation of statutes. Another aspect needs mention. A complaint of violation of human rights is based invariably on the allegation of harm to the victim resulting from some act or omission of the alleged violator. Once the harm attributed to the violator is proved or admitted, the burden of proving that the harm resulted from a justified act permitted under the law, is on the person against whom the allegation is made. Unless that burden is discharged by proof of facts or circumstances, which provide justification for the act under the law, the initial presumption of the violators’ accountability remains unrebutted. An obvious illustration is the case of unnatural death caused by use of force or disappearance from custody. As soon as it is proved or admitted that the victim was in the custody of someone, the burden is on that person to prove how he dealt with the detainee, and unless it can be satisfactorily shown that the custodian is not responsible for the harm or disappearance from the custody, the initial presumption of accountability remains unrebutted. The present case is of that kind.
Mohd. Tayab Ali, husband of the complainant is proved to have been taken in custody by the 17 Assam Rifles, and the custodian has been unable to prove satisfactorily the lawful termination of custody, when he was alive. These facts alone are sufficient to uphold the liability of 17 Assam Rifles and to hold it accountable for his disappearance.
Section 105 of the Indian Evidence Act, 1872 places the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or any other justification on the 17 Assam Rifles, which burden it has failed to discharge. Section 106 of Evidence Act places the burden of proving the facts especially within knowledge of any person upon him, irrespective of the general burden of proof being on the other side. This provision also casts the obligation on the custodian to prove how he dealt with the detainee or the victim. Viewed at, in any manner, the 17 Assam Rifles has failed to discharge the burden and the initial presumption of its liability for the disappearance of Mohd. Tayab Ali remains unrebutted. This case falls within the ambit of the second part of section 19(1)(b) since on receipt of the report from the Central Government the Commission is of the considered opinion that it is a fit case for making recommendations in terms of subsection (1) and (3) of section 18 of the Act. The Commission therefore, makes the necessary consequential recommendations. The complainant has lost her husband at a young age. At the time of her husband’s disappearance, she had five children and she was pregnant. The loss of the sole breadwinner rendered the family destitute. Since the violation of human rights in the present case is by members of the armed forces, the Commission, in exercise of its powers under section 19 of the Protection of Human Rights Act recommends that it would be just and proper in the circumstances of the case to award immediate interim relief of Rs.3 lakhs to the complainant and her children. We make this recommendation to the Ministry of Defence and the Ministry of Home Affairs, Government of India for compliance. The action taken should be communicated to the Commission within three months.
The Ministry of Defence reported compliance with the Commission's directions and made payment of the amount of compensation by cheque dated 18 February 2002. The case was therefore closed.