NHRC pulls up UP Government for insensitivity in cases of human rights violation of citizens and custodial crimes Calls for immediate payment of compensation to victim of police excess

In its Proceedings of today, the National Human Rights Commission has expressed its anguish and has recorded that it is disturbed by the insensitivity of the Government of Uttar Pradesh in cases of violation of Human Rights of the citizens in general and custodial crimes in particular. "It appears that the State has conveniently forgotten the observations of the Supreme Court of India that ‘custodial crime is perhaps one of the worst crimes in a civilized society’ and whenever it is established that there has been custodial violence at the hands of those who are supposed to protect the life and liberty of the citizens, that situation is enough ‘to lower the flag of civilization to fly half-mast’ because such custodial violence makes civilization take a backward step. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution cannot be denied to convicts, under-trials or other prisoners in custody of the State. The duty of care on the part of the State to protect the rights of the citizens while in its custody admits of no exceptions. It also appears that the concerned Authorities of the Government of Uttar Pradesh tend to overlook the purpose of grant of “immediate interim relief” under Section 18(3) of the Protection of Human Rights Act, 1993 inspite of having been told so by the Commission on earlier occasions and the clear exposition of law on the subject by the Supreme Court of India.” The Commission in particular has cited the facts of the instant case, a complaint alleging police excesses and harassment of Zameer Ahmed Khan, referred to the NHRC by the National Commission for Minorities. On 28 August 2001, the Commission had taken cognizance of the case and called for a report from the Chief Secretary and Director General of Police, Uttar Pradesh and from the District Magistrate and SSP of Bulandshahar, UP. The Commission had also requested the DG (I) of NHRC to get the matter enquired into by a team of officers of the Investigation Division of the Commission. According to the report of the DM, Bulandshahar in the magisterial enquiry ordered by the State Government, the allegations of custodial torture of Zameer Ahmad Khan stood established on the basis of evidence, including medical evidence, recorded during the enquiry. The SSP, Bullandshahar was directed to take necessary disciplinary action against the delinquent police personnel. However, the SSP had not done the needful and had opined that the disciplinary proceedings be deferred till finalization of the court case, instituted by the complainant, against the police officials. By its Proceedings of 16 January 2002, this Commission did not agree with the view of the SSP and recommended disciplinary proceedings to be taken up and not kept in abeyance because of the pendency of court case. The Commission also issued a notice to the UP Government to show-cause why “immediate interim relief u/s 18(3) of the Protection of Human Rights Act, 1993 be not granted to the victim as in this case the mere fact that the magisterial enquiry had established the allegations of custodial torture, was sufficient for not only the disciplinary proceedings but also for award of interim relief by the Commission. The Government of Uttar Pradesh failed to ‘show-cause’ within the time allowed by the Commission. Therefore, on 3 April 2002, the Commission opined that it was reasonable to assume that the Government had no cause to show against the grant of interim relief. By its Proceedings dated 22 May 2002, the Commission awarded an amount of Rs.20,000 as ‘immediate interim relief’ to Zameer Ahmad Khan for custodial torture inflicted on him and directed the UP Government to pay the amount within a period of eight weeks. The Commission also directed the SSP, Bullandshahar to inform it about the outcome of the disciplinary proceedings against the delinquent officials. Instead of making the payment of Rs.20,000 to the victim of torture as recommended by NHRC, on 3 August 2002 the Government of Uttar Pradesh requested the Commission to reconsider its recommendations regarding the payment on the plea that the victim had not suffered any “serious injury”. In its Proceedings of 9 September 2002, the NHRC repelled the request of UP Government and observed that the insensitivity depicted in the letter of the Government of UP was very disturbing. Custodial torture even without inflicting any visible injury would justify award of some compensation and disciplinary action against the delinquent police personnel. It therefore reiterated its recommendation for payment. The UP Government however did not comply with the recommendation of the Commission and once again wrote to the Commission on 28 December 2002 that while since SSP Bullandshahar had been directed to complete departmental proceedings against the police personnel, but since there was “no allegation of financial loss” in the complaint, therefore, there appeared, to the UP Government, no justification to pay the ‘immediate interim relief’ to the victim till the case was decided by the court. This letter was followed by another communication from the Secretary to the UP Government on 30 January 2003 stating that there appeared no justification to award interim relief to the victim on the ground that the victim did not receive any grievous injury at the hands of the police as per the magisterial enquiry report. This stand of the UP Government was inspite of the earlier proceedings of the Commission where it had adversely commented upon a similar plea of the UP Government and had rejected it. The Commission cited a number of cases arising from the State of UP itself wherein the scope and purpose of the grant of ‘immediate interim relief’ under section 18(3) of the Act had been explained including the recent case of the death of a medical student in Agra, who was “shot dead” by the police due to “mistaken identity”. The Commission has reiterated that the grant of ‘immediate interim relief’ envisaged by Section 18(3) of the Act, which is correlated to the injury/loss which a victim or members of his family have suffered owing to the violation of human rights by public servants is aimed at providing immediate relief by an order of making monetary amends for the wrong done due to breach of public duty. The award of such “immediate interim relief” under Section 18(3) of the Act is not dependent upon either the strict establishment of criminal liability after a full dress court trial or kept in abeyance during disciplinary proceedings. The use of the expression “immediate” and “interim” in Section 18(3) of the Act by the Parliament have a definite meaning and cannot be overlooked. If the argument that the grant of relief under Section 18(3) of the Act must follow only after a full dress court trial in a criminal case or conclusion of disciplinary proceedings, then that relief will cease to be both “immediate” as well as “interim”. The Commission added that “a welfare State recognizing its obligation to afford ‘relief’ to its citizens in distress, particularly those who are victims of violations of their human rights by public servants, has made this law under which the Governments seek advice from the National Human Rights Commission as to what in its view, is reasonable ‘immediate interim relief’ in a given case so that the State can act on the recommendation.” The Commission thus observed that the State of UP, having being told so on numerous occasions in earlier cases, is not justified to raise already rejected pleas to avoid its liability. The Commission was distressed to find lack of requisite sensitivity on the issue which was well settled by authoritative judicial pronouncement and to which attention of the State of Uttar Pradesh had been invited earlier also repeatedly. It has thus said “the liability of the State of Uttar Pradesh for payment of the amount of Rs.20,000, ordered as “immediate interim relief” under Section 18(3) of the Act, cannot, at all, be doubted as that liability of the State Government does not depend upon the fixation of liability of any individual public servant in a criminal case, civil action or disciplinary proceedings. The absence of “financial loss” raised as a plea now, appears to be only an argument of despair. It is alien to the human rights jurisprudence as it is grant of “interim relief” by way of compensation for violation o f human rights of the victim and not for realization of “financial loss”. We hope we shall not have to say all this again. ” Strongly reiterating its recommendations, NHRC has called upon the State of Uttar Pradesh to immediately make the payment of Rs. 20,000 as was ordered by the Commission on 3 April 2002 and reiterated on 9 September 2002. The Commission has also directed its Joint Secretary to address a letter to the Chief Secretary of UP conveying the concern of the Commission to the lack of sensitivity on the part of some officials of the State Government in matters concerning violation of human rights. The Chief Secretary has been requested to personally look into this matter. The Commission has asked for compliance within four weeks.