Appeal for expeditious arrangements for heart surgery of Harihar Behara lodged in Central Jail, Berhampur, Ganjam (Orissa)
Murder of Dinesh Pathak, editor of a newspaper in Baroda
Illegal chaining of a patient in a hospital in Orissa
Conditions of Chakma & Hajong refugees settled in Arunachal Pradesh
Enhanced compensation to persons affected by the activities of extremists in Andhra Pradesh
Complaint of Dr. Subramanian Swamy, President, Janata Party, alleging systematic denial of permission to him and to his party, by the Govt. of Tamil Nadu, to hold public meetings in the State.
End to discriminatory treatment in the remission of unexpired portion life sentence in Orissa
Compensation to the next of kin of riot victims in Gujarat
Release of foreign nationals in Indian jails
Right to form Association: State Govt.’s Orders prohibiting teachers and other faculty members (APCLS), Andhra Pradesh
Killing of 29 Bus Passengers in Peren, Nagaland
Protection of right of victims in cases of industrial hazards, U.P.(CASE NO :19900/24/97-98 )
Negligence by a medical officer, U.P.(CASE NO:7122/24/98-99)
Death of an innocent person owing to negligence of State Electricity Board, Bihar (CASE NO: 2010/4/98-99)
Killing of 35 Sikhs by militants in Anantnag District of J&K by militants (CASE NO:206/9/1999-2000)
Death due to Electrocution- strict liability of the State, Jharkhand (CASE NO:1509/4/2000-2001)
Cases where decision of the Commission has been upheld by Court-Sh. Mohammed Khan, Haryana (CASE NO:7/21/96-LD)
The Commission received a representation from Shri D.N. Panda, Advocate, Cuttack, stating that prisoner Harihar Behera in Central Jail, Berhampur, in the State of Orissa needed immediate heart surgery as advised by the Cardiology Department, S.C.B. Medical College Hospital, Cuttack, and asked for the intervention of the Commission.
The Commission called for a report from the inspector General of Prisons, Cuttack and directed him to make provision for medical assistance in the manner asked for, if the matter was urgent.
The Inspector General of Prisons responded to the Commission's directions and stated that the Government of Orissa had been moved to approve the journey of Shri Harihar Behera outside the State and that sanction of funds and orders to that effect were awaited.
On 24 March 1994, the I.G. Prisons further informed the Commission that on the petition of the wife of Shri Harihar Behera for release of her husband on special parole for a period of 90 days for open heart surgery at C.M.C. Vellore or at AIIMS, New Delhi at her own cost, the Government of Orissa had sanctioned 90 days special parole. Accordingly, Shri Harihar Behera had been released on special parole for 90 days with effect from 28 February 1994.
The Writers in Prison Committee of International P.E.N. had in February 1994 taken up with the Commission, inter alia, the case of Shri Dinesh Pathak who was stabbed to death reportedly by Shiv Sena activists on 22 May 1993. The Commission took cognizance of the case and directed the authorities concerned to submit a report.
The Commission has since been informed that 19 Shiv Sena activists were involved in the crime and they have all been arrested. One of the arrested persons was killed when he tried to escape from police custody. Out of the accused who were arrested, 16 are still in judicial custody. The trial is likely to commence shortly.
The Commission received a complaint from the Kalahandi Consumers Welfare Organization alleging that, in a misuse of poer by public servants, a social worker, Shri Radhanath Pradhan, had been chained to his hospital bed. The complaint was accompanied by photographs of the incident. The Commission accordingly called for a report from the Collector and District Magistrate, Kalahandi.
On perusing that report, the Commission noted that Shri Radhanath Pradhan had been prosecuted for offences committed under Sections 448/294/353 of the IPC in regard to incidents which were mentioned in the complaint. The Chief Judicial Magistrate had found him guilty and had sentenced him to imprisonment of one year and a fine of Rs. 1,000/-. It was also noted that Shri Pradhan had filed an appeal in the Court o the Sessions Judge. Without taking a position on Shri Pradhan’s arrest, as that issue was before the Sessions Judge, the Commission expressed grave displeasure over the changing of Shri Pradhan to his hospital bed. The Commission added that, unless there wire special reasons and a judicial order in support of such action, patients under treatment in hospitals must not be chained.
Following these directions, the State Government has issued appropriate instructions to all concerned officials in the State
The Commission received representations from the Peoples Union for Civil Liberties (PUCL) and Amnesty International regarding the plight of Chakma and Hajong refugees living in Arunachal Pradesh. It was stated that these groups, comprising respectively Buddhists and Hindus, fed for fear of persecution on grounds of their religion from the Chittagong Hill Tracts, in what was formerly East Pakistan, between the years 1964-1971. Onginally welcomed to India and to parts of NEFA, which today form Arunachal Pradesh, they were now increasingly being harassed and threatened in that State. when some of them tried to flee to Assam, it was alleged that the Government of Assam threatened to shoot them if they did so. Allegations regarding threats to the life and property of Chakmas and Hajongs were also conveyed directly to the Chairperson of the Commission through representatives of their communities who had traveled to Delhi from Arunachal Pradesh.
The Commission, in a communication to the State Government on 29 September 1994 stated that it was the obligation of that Government to accord protection to the person and property of the members of the two communities and to ensure that their human rights were not violated. In addition, the Commission called upon the State Government to take prompt action to restore normalcy. It also urged the Ministry of Home Affairs to ensure prompt and necessary action by the State Government.
The "Committee for Citizenship" of the Chakmas in Arunachal Pradesh also sent a representation to the Commission asserting that while the Chakmas and Hajong communities settled in other North-Eastern States of India were enjoying the full-fledged rights of Indian Citizenship, those settled in Arunachal Pradesh were not being granted such citizenship because o the State Government’s adamant opposition to the Central Government’s policies in this respect in consequence, the Committee stated, human rights abuses were being constantly perpetrated against the Chakmas in Arunachal Pradesh. In respect of this complaint, too, the Commission called for reports from the State Government and the Home Ministry.
The State Government stated that there is no threat to the life and property of members of the two communities in question and that an adequate police force has been deployed to protect them. The Home Ministry reported that the State Government had been advised to ensure normalcy in the law and order situation as also to supply needed essential commodities and medical facilities to the Chakma and Hajong refugees. As regards the granting of citizenship to them, the Home Ministry reported that the matter was under consideration, in consultation with the State Government.
The Chairperson addressed a further letter on 7 December 1994 to the Union Home Minister and also to the Chief Minister, Arunachal Pradesh, stressing the need to provide adequate protection to the members of these two communities with a view not only towards instilling a sense of safety and security in their minds but also in order to ensure that their human rights were fully respected.
During the Commission’s visit to certain districts in Andhra Pradesh in August 1994, a number of representations were received by the Commission from the victims of Naxalite and extremist activities. A majority of these representations sought adequate compensation to the next of kin of the deceased, or for those permanently disabled or seriously injured at the hands of extremists. A number of other petitioners sought profection for their life and property, consequent upon violence resulting from the actions of extremists.
By an order of the Government of Andhra Pradesh issued on 2 April 1991, compensation to victims of Naxalite violence was paid at the rate of Rs. 25,000/- in case of death, Rs. 10,000/- in case of permanent incapacitation, and Rs. 5,000/- in case of injury. The Commission discussed this issue with the Chief Minister of Andhra Pradesh, stressing the inadequacy of these levels of compensation. The Commission impressed upon him the need to increase the amounts on the lines of a similar scheme existing in Punjab. As a result of this discussion, the State Government issued an Order on 20 August 1994 enhancing the compensation to Rs. 50,000/-, 20,000/- and 10,000/- in respect of the three situations mentioned above, with the order to come into effect from 1 April 1994.
The Commission, however, in its proceedings held in September 1994, insisted that a uniform rate of compensation be adopted in respect of the three situations, namely, death, permanent disablement and serious injury, irrespective of and without reference to the date of occurrence of the event on the ground. It was of the view that a "widow" of a person killed on 31.1.1994 and another killed on 1.4.1994 should stand on no different footing:. The State Government thereafter amended its Order on 21 November 1994 providing for payment of the enhanced compensation of Rs. 50,000/- in all cases of death, effective from 1 January 1991 instead of 1 April 1994.
The Commission them took up 616 petitions which had been received by it during its visit to Andhra Pradesh, and that requested enhanced compensations. It forwarded these complaints to the Collectors of Karimnagar, Nalgonda, Warangal and Medak districts with a direction to pay the compensations, at the enhanced rates, to the affected petitioners of their respective districts, before 31 March 1995. Action-taken reports from the Collectors of these districts are awaited.
Another batch of 140 petitions were forwarded by the Commission to the State Government with the direction that necessary protection be provided to the petitioners against extremist violence. The State Government had sent a report recently, furnishing a statement giving the details of the protection provided to these petitioners.
On receipt of a complaint from Dr. Subramanian Swamy, President, Janata Party alleging the systematic denial of permission to him and to his party, by the Government of Tamil Nadu and its officers, to hold public meetings in the State, the Commission fixed 17 February 1995 as a date of hearing. Notices were accordingly issued to both the parties, namely, the complainant Dr. Subramanian Swamy and the State of the Tamil Nadu. The complainant appeared in person on the said date, but there was no appearance on behalf of the State of Tamil Nadu. On the basis of the papers available, the matter was disposed of by the Commission by its order of 24 February 1995 with the following recommendations:
a) application made for permission should ordinarily be disposed of within three days of making;
b) permission granted could be recalled, if there be sufficient and justifiable cause of be stated;
c) in such cases, where request for permission is not intended to be accorded, the applicant may be given an opportunity of interacting of with the authority either in person or through writing;
d) granting of permission should be the rule, subject to the requirement of maintenance of law and order.
The Commission has been informed by the complainant that the recommendations issued by it are now being followed by the State Government.
Upon the intervention of the Commission, the Orissa Government has remitted the unexpired portion of thesentence passed on a life convict, Gopal Banerjee, and has ordered his release. The wife of Gopal Banerjee complained to be Commission stating that discriminatory treatment was shown by the Orissa Government in regard to her husband’s premature release.
In a sessions trial in 1975, four persons, Gopal Banerjee, Ashit Dey, Amulya Rai and one other were convicted and were sentenced to life imprisonment by the Sessions Judge of Cuttack, Gopal Banerjee was lodged in cusody at the Dum Dum Central Jail, Calcutta. Ashit Dey and Amulya Rai were released prematurely in 1989 and 1993 respectively, upon the State Government remitting the unexpired portion of their sentence.
In response to a writ petition filed by the wife of Gopal Banerjee in 1992, the Supreme Court had asked the Orissa Government to take a decision on his release. Thereupon, the StateGovernment, which considered the mercy petition of Smt. Gopal Banerjee praying for premature release of her husband, had rejected the same.
The Commission examined the matter following an application of Smt. Gopal Banerjee and felt that the State Government’s stand in the case affected the right to equlity of treatment.
The Chairperson of the Commission, in a letter to the Chief Minsiter of Orissa, drew his attention to the fact that Gopal Banerjee, like the other co-accused, was from West Bengal. As he had spent more than 20 years in a jail situated in another State, there was no occasion for the Orissa police to make any assessment of the possible impact of his release prematurely. While considering the claim of Gopal Banerjeefor premature release, the fact that two other co-accusedhad been so released, had perhaps not been kept in view, the letter noted. The State Government responded in December 1995 saying that the unexpired portion of the sentence passed on Gopal Banerjee has been remitted, and orders passedfor his release.
Upon the intervention of the Commission, a sum of Rs. 2,00,000/- was sanctioned to the heirs of Gulab Nabi Bandey and Zahir Ahmad Bandey, who died in communal riots in Surat, Gujarat, following the demolition of Babri Masjid.
The Commission received arepresentation from Bashir Ahmed Mir of Jammu & Kashmir stating that thedeceasedwere his relatives and that they were trading in Kashmiri shawls in Surat, Gujarat where they were killed in communal riots which broke out in December 1993.
Giving details of the efforts made by him to find the where abouts of his uncle and cousin, Bashir Ahmed Mir complained of inaction on the part of the concerned government authorities and prolonged delay in the dispensation of justice.
The Commission issued notices to the Jammu & Kashmir Government and to the Gujarat Government. The Home Department of Gujarat reported to the Commission that the matter pertained to the Revenue Department and that it was transmitting the papers to the latter for necessary action.
As no response came from the State Government for about four months, the Commission issued summons to the Chief Secretary and the Revenue Secretary to appear in person before the Commission, which they did. Following that hearing, the Gujarat Government reported to the Commission that ex-gratia payment of Rs, 2,00,000/- had been sanctioned to each of the heirs of the decased.
A complaint was received from Shri Sazwara Khan and four other nationals of Pakistan, alleging that they were confined illegally and unconstitutionally by the Government of Rajasthan under Section 100 Cr.P.C. and were confined in different jails of Rajasthan. The Commission took cognizance of the matter and issued notice to the Government of Rajasthan and the Government of India.
The External Affairs Ministry vide its communication dated 24 December 1997 intimated that the Government had decided to repatriate Shri Sazwara Khan in view of his advanced age.
Right to form Association: State Government’s orders prohibiting teachers and other faculty members of Universities from associating with Andhra Pradesh Civil Liberties Committee (APCLC) : Andhra Pradesh
The Commission received a number of complaints from NGOs and academic institutions from India and abroad stating that the Government of Andhra Pradesh issued a circular ordering universities to prevent teachers and other faculty members of Universities from associating themselves with the Andhra Pradesh Civil Liberties Committee (APCLC). It was alleged that such a directive was violative of the Freedom of Association and Political Rights. Five academics of Osmania Krishnadevaraya and Nagarjuna Universities were asked to resign from the membership of APCLC, a non-governmental organisation. The State Government had issued such a direction, apparently based on a rule that bars university employees from participating in political activities. It was stated by the NGOs that membership of a human rights organisation could not be construed as political activity.
The Commission took cognizance of the matter and issued notice to the Chief Secretary, Andhra Pradesh. In response to the notice from the Commission, the Secretary, Department of Higher Education, Government of Andhra Pradesh sent a communication to the Commission informing it that the Government had reviewed the whole matter and decided not to take any further action in pursuance of the letter issued by the Education Department, Government of Andhra Pradesh.
Proceedings in this case were initiated on a communication from the Chairperson of the Assam State Human Rights Commission. This related to an incident in which 29 persons had lost their lives in an attack by certain insurgent elements when the latter intercepted a Dimapur bound passenger-bus and opened indiscriminate fire on the passengers. On notice being issued, the Ministry of Home Affairs, Government of India, submitted a report. The report did not dispute that the deaths occurred as a result of violent activities of insurgents. On examination of the report, the Commission considered it reasonable to infer that the State Government had failed to protect the lives of these innocent citizens. It further observed that the State Government itself had sanctioned ex-gratia relief of Rs.10,000/- to the dependents of the deceased and Rs.5,000/- to those severely injured and Rs.2,500/- to those who had sustained minor injuries.
The Commission felt that ex-gratia payment of Rs.10,000/- sanctioned to each of the families of the deceased was not adequate; and recommended to the State Government that it enhance the quantum of ex-gratia relief from Rs.10,000/- to Rs.50,000/- to the families of the 29 persons killed in the incident and make the payment accordingly.
The State Government of Nagaland intimated that the amounts of ex-gratia payments of Rs.50,000/- each to the next to kin of 28 victims have since been made on 1.4.1998.
The petitioner, Ms. Subhashini Ali, drew the attention of the Commission to the occurrence of a ghastly incident in the factory premises of Jyoti capsules on 4 January 1998 in Kanpur, in which 8 workers had lost their lives. The accident occurred due to an explosion caused by the leakage of an inflammable chemical, hexane. The petitioner alleged that the factory had resumed production without taking due care of safety conditions.
The Special Rapporteur of the Commission investigated the case and stated that the accident was the result of criminal negligence by the factory owner in handling and storing explosive chemicals and that he had failed to maintain safe working conditions in the factory. A major contributory factor was supervisory lapse on the part of the Inspectorate of Factories. The Commission directed the Government of Uttar Pradesh to finalise criminal cases registered against the owner and also ordered that the factory should not be permitted to resume production without complying with all safety requirements. The Labour Department of the Government was directed to investigate the reasons for the supervisory lapse and to penalise the culprits. The District Magistrate, Kanpur was directed to ensure early payment of all financial benefits in case of death and injuries. The intervention of the Commission brought about the award of immediate relief of Rs. 5000/- each to the victims apart from the compensation which was sanctioned to them by the State.
The Directive Principles contained in Art. 48A of the Constitution direct the State to endeavour to protect and improve the environment.
Principle 13 of the UN Declaration on Environment and Development (Rio Declaration, 1992) proclaims that States shall develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. The Public Liability Insurance Act 1991 is in consonance with the spirit of principle 13 of the Rio Declaration, in as much as it aims at providing for public liability insurance for the purpose of providing immediate relief to persons affected by accident occurring while handling any hazardous substance or matters connected therewith or incidental thereto. Under the Act, any person handling any hazardous substance is required to take out insurance policies so that he is insured against liability to give relief in case of death or injury to a person, or damage to any property, arising from an accident occurring while handling any hazardous substance. This Act has been enacted subsequent to the Bhopal Gas leak disaster where MIC leaked from the plant of Union Carbide India Ltd. and caused the death of over 3000 persons and serious injuries to a large number of others.
It is important to mention here that in the case brought before the Commission by Ms. Subhashini Ali, negligence was involved on the part of the factory owner. In such cases, exemplary compensation and damages are to be awarded to the victims. The Supreme Court of India has modified the English rule of strict liability in M.C. Mehta vs. UOI (AIR 1987 S.C. 1087) and has laid down the concept of ‘absolute liability’ in the case of industrial hazards, even though there might not have been any negligence on the part of the enterprise owner. By providing additional relief and ordering the expeditious criminal trial of the culprits, the Commission has kept in mind the constitutional obligations of the State and also the UN Declaration on the Environment and Developments.
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.
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.
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).
The Commission took suo motu cognizance of a newspaper report in ‘The Times of India’ dated 22 March 2000 in respect of the killing of 35 persons of the Sikh community in Anantnag District, Jammu & Kashmir by militants.
Upon notice being issued to the State Government, a report was received saying that a Commission of Inquiry consisting of Justice Shri S.R. Pandian, a retired Judge of Supreme Court, had been appointed by the Government of Jammu & Kashmir to enquire into causes and circumstances leading to the event of firing on 3 April 2000 which led to the death of 8 persons, justification for use of force and fixation of responsibility for use of excessive force, if any.
On considering this report, the Commission observed that Justice Pandian Commission of Inquiry had not been mandated to enquire into either the incident of 20 March 2000 in respect of the massacre of 35 innocent Sikhs or the incident of 25 March 2000 in which reportedly 5 foreign mercenaries were killed by the Security Forces.
A subsequent report submitted by the Director General of Police, Jammu & Kashmir indicated that a case had been registered in respect of the killing of the 35 Sikhs and that investigation was in progress. The report further indicated that, of the twenty accused persons identified in connection with the killing of 35 Sikhs, 6 were killed in subsequent encounters; 2 were further detained under the Public Safety Act and 12 were absconding. A chargesheet had been filed in the case on 13 November 2000. The report stated that three Pakistan nationals belonging to Lashkar-e-Toiba had confessed their involvement in the killings. The State Government had made adequate security arrangements for the protection of villagers residing in vulnerable areas and provided an ex-gratia payment of Rs. 1 lakh to the next of kin of the deceased and Rs. 75,000 to those permanently disabled.
The Commission had directed the State Government to furnish a report on the action taken on the findings and recommendations of the Justice Shri S.R.Pandian Commission, as well as to furnish a progress in respect of the case before CJM Anantnag in respect of the killings of 5 persons on 5 March 2000, allegedly in a fake encounter.
The State Government in its letter dated 4 July 2001, informed the Commission that it had decided to accept the report of the Justice S.R.Pandian Committee of Inquiry in toto, in terms of the recommendations of the Commission. It further informed the Commission that the concerned personnel of Jammu and Kashmir police personnel had been formally charge sheeted and a full fledged departmental enquiry was being conducted. The State Government added thazt an FIR had been registered against them and that a special team of investigators had been appointed to complete the investigation. In respect of the police personnel of the Central Security Forces, the Ministry of Home Affairs, Government of India, had been requested to take disciplinary action. Ex-gratia relief at Rs. 1 lakh to the next-of-kin of each of the deceased, and at Rs.5,000/- per head to the injured persons, had been paid by the concerned District Magistrate.
In view of this report, the Commission closed the case before it in its proceedings recorded on 25 July 2002.
The Commission took cognisance of a complaint from Maku Murmur, resident of Dumka, Jharkhand alleging that her husband, Babu Ram, had died on 9 July 2000 as a result of being electrocuted by a live transmission wire. She stated that the death was the result of negligence of the Bihar State Electricity Board.
Upon a notice sent to the Chairman, Bihar State Electricity Board as well as to the District Magistrate, Dumka, it was confirmed that the victim had died after being electrocuted. It was, however, contended that a severe storm had occurred on the date of the incident and that deceased might have come into contact with the electricity wires, which would have fallen to the ground because of the storm and rain. It was stated that the death had not resulted from the fault of any person of the electricity department or any other authority.
The Commission, while over-ruling the contentions of the State, held that the Bihar State Electricity Board could not be absolved of its responsibility of properly maintaining the whole system; that rain and storms were not an unusual phenomenon and care was needed to avoid such situations. Accordingly, the Commission in its proceedings dated 29 August 2001 issued a notice to the State of Bihar to show cause why immediate interim relief u/s 18(3) of the Protection of Human Rights Act, 1993 be not awarded to the petitioner.
The Bihar State Electricity Board sought a review of the matter on two grounds, namely, (i) that the State of Bihar had been bifurcated with the formation of the State of Jharkhand with effect from 15 November 2000 and that this had transferred the liability to the State of Jharkhand; and, (ii) that the death of Babu Ram Tudu was in an accident, resulting from heavy rains and a storm which led to the snapping of a hightension wire and the lowering of its height.
The Commission did not find any justification in these submissions. In a decision of 11 January 2002, it referred to the doctrine of strict liability recognised and applied by the Apex Court in a similar situation in the case of M.P. Electricity Board vs. Shail Kumari and Others. The Commission accordingly recommended the payment of Rs.2 lakhs by the Bihar State Electricity Board as immediate interim relief u/s 18(3) of the Protection of Human Rights Act, 1993 to the next of kin of the deceased.
As regards the bifurcation of the State of Bihar following the creation of the State of Jharkhand, the Commission held that this was now a matter for adjustment between the two States, it did not however exonerate the State of Bihar of its liability to a third party, which had been incurred on a date prior to bifurcation of the State.
In view of the compliance report received from the Bihar State Electricity Board, the case was closed on 29 January 2003.
This case relates to a complaint received from one Sher Mohammed Khan, alleging beating and torture at the hands of police officials in Gurgaon, Haryana. The Commission called for a report from the DGP, Haryana and after considering the report, recommended on 20 February 1998 that a case be registered against the SHO Police Station, Sadar, Gurgaon and compensation in the amount of Rs.25,000 be paid to the complainant. Feeling aggrieved by the recommendation of the Commission, Shri Sheodan Singh, the then SHO PS Sadar, Gurgaon, filed a petition Crl. Misc. No.12078/98 — Sheodan Singh vs. State of Haryana and others before the High Court of Punjab and Haryana. The High Court, by its order dated 30 November 2000, dismissed the petition directing that it would be wholly inappropriate to exercise the extraordinary jurisdiction of the court u/s 482 of the Code of Criminal Procedure in the instant case. Shri Sheodan Singh then moved a special leave petition in the Supreme Court against the order of the High Court of Punjab and Haryana in Crl. Misc. No.12078 - M/1998. The Supreme Court took the view that since the police had registered an FIR against Shri Sheodan Singh, and that FIR had been transformed into a final report and the Magistrate had taken action on the said final report, it did not feel inclined to interfere in the matter and disposed of it accordingly. The amount of compensation has since been paid by the State Government.
The Commission received a complaint dated 16 October 1999 from Smt.
Leelawati, a resident of District Unnao, Uttar Pradesh alleging that on 31
May 1997, an electric pole in her village fell on her and her son Govind.
This resulted in the death of her son and grievous injuries to her, leading
to the amputation of a hand, making her permanently disabled. She had been
paid a mere Rs.20,000/- for the death of her only son and Rs.12,000/- for
the injuries suffered by her, in March 1999. A prayer was made for an
independent investigation into the negligence of the Electricity Department
and payment of adequate compensation.
The Commission received a complaint on 25 February 2000 from Shri
Kumpampadom Thomas Skaria, a citizen of the United States of America of
Indian origin, stating that he had arrived at Mumbai Airport on 6 March 1999
to attend to the last rites of his father who had passed away in Kerala.
Despite his passport and visa being in order, he stated he was harassed by
the Immigration Officer on the grounds that his entry visa had been tampered
with. He was not allowed to visit his native village in Kerala, but was sent
back to the USA from Mumbai airport itself. He added that, a result, he
suffered great mental agony and torture and incurred a huge financial loss.
Earlier annual reports of the Commission have recounted, in
great detail, the efforts of the Commission since 1996 to deal with
allegations of deaths by starvation in the ‘KBK” districts of Orissa and the
remit of the Supreme Court to the Commission to pursue and monitor this
The Commission received a complaint dated 18 September 2003 XXX, an HIV
positive patient stating that he had been denied treatment both by the
Government and non-government hospitals. He also alleged that he had got
dialysis conducted at the Apollo Hospital, New Delhi after incurring a huge
expenditure but no surgery was performed to remove the stones at the Apollo
Hospital. After his admission to All India Institute of Medical Sciences, he
was discharged after 15 days. He complained that during his stay at the Lok
Narayan Jaiprakash Hospital from 2 September 2003 to 9 September 2003 he was
again refused dialysis.
The Commission received a letter from the office of the Director General
Prisons, Delhi stating that an under-trial prisoner, Charanjit Singh, had
been languishing in the Tihar Jail since 28 October 1985. The prison
authorities had observed that the prisoner had already spent around 16 years
in jail and even if he was convicted, his case would have to be placed
before the Government for premature release. They also stated that there was
no one to stand surety for him and that he was mentally frail.
Cyril Fernandes, Human Rights Monitoring Society, Goa had sent a
newspaper clipping of Gomantak Times dated 25.8.2000 which reported the
death of a five year old boy due to alleged negligence of Goa State
Electricity Department. The press report indicated that a five year old boy,
Mahabub Imam Navalgund, while playing with two of his friends noticed some
guavas on a tree. In his excitement to pluck some guavas, he came into
contact with the electric wires entangled to the tree and was electrocuted.
It was alleged that immediately after the mishap, the electricity officials
rushed to the site before the arrival of the police and repaired the wire
which was dangling from the pole.
The Commission received a complaint from the widow of one Dirisam Lajer,
who died as a result of electrocution in Katuru, Krishna District, Andhra
Pradesh on 24 May 1999. She alleged that when her husband had gone to the
field for collecting fodder, he came in contact with a live electric wire
lying on the ground and was electrocuted. She in her complaint to the
Commission thus prayed for the grant of financial assistance. Accordingly,
the Commission issued a notice to the Chief Engineer, Southern Power
Distribution Company, Andhra Pradesh.
The Commission took suo-motu cognizance of media reports on the
outrageous terrorist attack of Langer at Ban Ganga near Katra, Distt.
Udhampur, Jammu & Kahsmir on their way to the Vaishno Devi Shrine on 21 July
2003, killing seven devotees, including a child and injuring many innocent
civilians. The Commission had consistently taken the position that such
criminal acts were wholly unjustified and were violative of every
conceivable human right. The Commission therefore called upon the
authorities to ensure that the full force of the law must be brought to bear
in dealing with such acts of terrorism and bringing to justice those who
perpetrate or abet them. The Commission extended its deepest condolences to
the families to those who had lost their lives or been injured in the
The Commission was seized of the complaint from the Secretary General,
Jammat-e-Islami, Jammu & Kashmir, alleging ill-treatment meted out to ailing
Syed Ali Shah Geelani, veteran political leader of J&K, who was detained in
Birsa Munda Central Jail, Ranchi in Jharkhand under the Public Safety Act,
though the doctors attending on him in Jail had recommended that he be
immediately shifted to AIIMS, New Delhi. It was further alleged that the
State/Central Governments had taken no steps for shifting him to AIIMS
deliberately on the grounds of non-availability to proper security
arrangements for his treatment in the hospital.
As many readers of the annual reports of the Commission have continued to
express an interest in knowing about the action taken on the cases reported
in the proceeding annual reports. Information in respect of the cases
reported in the annual reports of 2001-2002 and 2002-2003 has been updated
and further action taken in respect of those cases in summary form has been
included in the following paragraphs:-
The Commission received a complaint dated 19 January 2001 from Smt.
Dirisam Swarooparani w/o Late Dirisam Lajer resident of Krishna District,
Andhra Pradesh, an agricultural labourer, having three children and no
landed property, alleging that on 24 May 1999 her husband Shri D. Lajer,
while cutting grass in the fields of a farmer, came in contact with a live
electrical wire lying under the grass and died due to electric shock.
The Commission received a remit, from the Supreme Court of India to
examine 2097 cremations of dead bodies as un-identified by the Punjab Police
in the Police District of Amrisar, Majitha and Tarn Taran of District
Amritsar, Punjab during the period w.e.f. 1984 to 1994. While remitting the
matter to the Commission, the Hon’ble Supreme Court of India directed the
CBI to take further action into the matter and register the cases where
necessary, hold investigations and proceed in accordance with the law on the
basis of material collected through investigation. For the remaining issues
the Hon’ble Supreme Court of India requested the Commission to examine the
Shri V. Kishore Chandra S. Deo, former Union Minister vide his reference
dated 4th February 2003 invited attention of the Commission towards the
misery and suffering which had occurred on account of the proposed
construction of a barrage across the river Nagavalli near Thotapalli village
of Vizianagaram District in Andhra Pradesh. According to the complaint, a
large number of farmers who are dependent upon the present regulator for
irrigation would be seriously affected. Besides, the agricultural labourers
would also lose their jobs.
The Commission received a complaint from Shri G. Mohan of Swami
Vivekananda Youth Movement, Karnataka in respect of the rehabilitation and
resettlement of the tribals of H.D. Kote Taluk District, Mysore, Karnataka
who were affected by the construction of the Kabini Reservoir in early 1970s
and the formation of Bandipur Project Tigar National Park in 1973-74.
The Commission took suo-motu cognizance of various news items reporting
incidents of suicide by farmers in Andhra Pradesh due to crop failure and
mounting debt burden. It was alleged in the report that since 1998 more than
1000 farmers had committed suicide while the non-official sources put the
deaths at over 3000. The Commission also received a petition from Dr. Y.S.
Rajasekara Reddy the then leader of opposition alleging negligent attitude
of the State Govt. in formulating a policy to tackle the situation arising
out of suicide being committed by the farmers in the State.
The Commission received a complaint from Shri P. Kodanda Ramaiah, Ex. M.P.,
Sh. B.R. Patil, Ex. Vice Chairman, Legislative Council, Sh. K. Sharananna,
Ex. MLA, Kushtagi and Sh. Srishailappa Bidarur, Ex. MLA, Ron alleging that
the farmers in Karnataka are committing suicide due to hunger caused due to
drought resulting in failure of crops.
Taking suo-motu cognizance of the calamity that arose from devastating
tsunami waves which hit large areas of coastal India, including Andaman &
Nicobar Islands, Pondicherry, Tamil Nadu, Andhra Pradesh and Kerala on
26.12.2004, the Full Commission, vide its proceedings dated 13/01/2005,
The Commission received a reference dated 11 August 2003 from Dr.
Poornima Advani, Hon’ble Chairperson, National Commission for Women inviting
attention to a newspaper report published in “The Tribune” dated 2/8/2003
captioned “Two girls reportedly beaten to death by ultras” in the State of
Jammu & Kashmir. A prayer was made to the Commission for getting a joint
investigation conducted by it along with the National Commission for Women
and the National Minority Commission.
The Coordinator, Human Rights Promotion Cell, Rural Uplift Centre,
Tirunelveli District, Tamil Nadu forwarded a complaint alleging that on
14.1.2003 one Mr. Jones and his accomplice Stephen had thrown bleaching
powder solution on the face of Ms. Jeena Kumari, a student of Bachelor of
Pharmacy, belonging to SC community. The girl suffered injuries and was
hospitalized. On complaints at Thuckalay Police Station, Kanyakumari
District, a FIR was registered against the accused under the IPC. Later,
provisions of SC/ST (Prevention of Atrocities) Act. 1989 were added. After
the investigations were completed, a charge sheet was filed in the court of
Judicial Magistrate. It was alleged that again on 31.3.2003, when the
victim, Ms. Jeena Kumari got down from the bus in front of her college,
Jones threw acid on her face. Consequently, her face as well as both the
hands were disfigured. On the basis of her statement Police at Koondankulam
Police Station registered a case No. 77/03 under various sections of Indian
Penal Code as well as SC/ST (Prevention of Atrocities) Act, 1989.
The Commission received a reference dated 28.4.2003 from the Chairman,
National Commission for Minorities in respect of large number of sikh
Non-Resident Indians (NRIs) who had been black-listed by the Ministry of
Home Affairs for their emotional outbursts and raising of slogans outside
Indian Embassies in protest of the Golden Temple episode of 1984. These NRIs
had been denied visas even in the most compassionate and humane situations
when they were required to be by the side of their dying parents or were to
attend the religious ceremonies in their family. A request was, therefore,
made by the Minority Commission to get list totally scrapped.
The Commission received a complaint dated 18.9.2003 from four Pakistani
Nationals confined for more than one and a half months in Restricted
Foreigners Camp Lampur, Delhi, on release from Tihar Jail after undergoing
imprisonment in connection with different cases under IPC and Foreigners Act
for entry in India without valid documents. They alleged that no action had
been taken by the authorities for their deportation to Pakistan. A prayer
was, therefore, made for intervention by the Commission for their