NHRC directs Ministry of Defence and Ministry of Home Affairs, Government of India, to pay Rs. 3.00 lakhs as compensation in a case of custodial disappearance

The National Human Rights Commission has directed the Ministry of Defence and Ministry of Home Affairs, Government of India, to pay ‘immediate interim relief’ of Rs. 3.00 lakhs to a woman from Manipur, whose husband had allegedly disappeared while in the custody of Armed Forces and had not been seen thereafter.

Smt. Mina Khatoon, a resident of Manipur, had filed a complaint with the Manipur State Human Rights Commission alleging that, on 25 July 1999, her husband Mohd. Tayab Ali was picked up by uniformed army personnel while he was going from his village towards Imphal on a two-wheeler. Both he and his moped were put inside a van without a number-plate and taken to the Battalion Headquarters of the 17 Assam Rifles. Local acquaintances of Mohd. Tayab Ali had followed the van and later informed the victim’s family. It was stated that efforts to ascertain the whereabouts of Mohd. Tayab Ali by his relatives and village-elders were resisted by the security personnel at the Headquarters of the Assam Rifles. Thereafter, his whereabouts remained unknown.

The Manipur State Human Rights Commission considered the complaint and examined five witnesses. Pursuant to a notice issued by the State Human Rights Commission to the Inspector General of Police (Law & Order), Manipur, that Commission was informed that the DGP, Imphal, had issued messages to all concerned police authorities in Manipur to find out the whereabouts of Mohd. Tayab Ali. The police had also taken up the matter with the Assam Rifles but were told that no individual by the name of Mohd. Tayab Ali had been picked by any of their Units. The State Commission then referred the case to the NHRC as it related to the armed forces.

Under Section 19 of the Protection of Human Rights Act, 1993, the NHRC then called for a report from the Ministry of Defence and the Ministry of Home Affairs, Government of India. The report submitted by the Ministry of Defence stated that the Assam Rifles had received information that some insurgents, after firing on CRPF personnel were fleeing towards Dimarpur. A team of 17 Assam Rifles had established a mobile check-post to apprehend them. This team had tried to stop a speeding vehicle upon which there had been an exchange of fire and one person had died. The driver managed to escape in the vehicle. The dead body, believed to be that of Mohd. Tayab Ali, was later handed over to the local police.

The Defence Ministry’s report thus concluded that Mohd. Tayab Ali had died in a retaliatory fire by the armed forces and hence no cognizance could be taken of Smt. Mina Khatoon’s complaint. This stand of the Ministry was totally different and inconsistent with the earlier report of the DGP, Manipur, in which the Assam Rifles had reportedly denied picking up any person by the name of Mohd. Tayab Ali.

The Defence authorities further reported to the Commission that the local police had not made any effort to trace the relatives of the dead person and the body was later disposed of as unidentified.

The NHRC, therefore, by its order dated 13 December 2000, directed that the photograph of the person killed in the encounter be shown to the complainant to ascertain whether it was that of her husband. On 15 January 2001, the DGP, Manipur wrote to the Commission stating that the complainant and her family members had denied that the photograph was that of Mohd. Tayab Ali – proving that the person killed in the encounter was not Mohd. Tayab Ali.

The Commission held that the facts clearly indicated that Mohd. Tayab Ali had been picked up by some personnel of the 17 Assam Rifles and was taken to their Headquarters. There was unrebutted testimony of several witnesses who had seen him being taken by them. Mohd. Tayab Ali had been missing since that day. The Commission thus rejected the stand taken by the Defence authorities and concluded that the 17 Assam Rifles, in whose custody Mohd. Tayab Ali was last seen, had failed to account for him thereafter.

Quoting intensively from Supreme Court judgements in similar cases, and the powers given to the NHRC under Sections 17, 18 and 19 of the Protection of Human Rights Act, 1993, the Commission stated that “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 Commission held that its power to make ‘recommendations’ under section 19 (which deals with the procedure with respect to armed forces) must mean, as a corollary, that it has the power to do all that is necessary for the proper discharge of its responsibility. It is the Commission’s view that the ‘report’ that it seeks from the Central Government under Section 19 (1) of the Act must satisfy this requirement and contain all the material that is necessary to enable the Commission to decide objectively whether to accept the government’s report, and not proceed further in respect of the allegations contained in a complaint, or to make ‘recommendations’ in respect of that complaint. In view of the Commission, the ‘report’ must therefore contain a statement of all of the facts and all of the occurrences relating to the alleged violation of human rights contained in a complaint; it must not merely be confined to the findings or conclusions reached by the Central Government on the basis of facts that are not disclosed to the Commission. Only such a construction of Section 19 would promote the ‘better protection’ of human rights, which is the principle object of the Protection of Human Rights Act, 1993 and such a construction must be preferred, since it is in consonance with a settled canon in the interpretation of statutes.

In this case, the Commission held that the complainant had lost her husband at a young age. At the time of her husband’s disappearance, she was pregnant and had five small children. The loss of the sole breadwinner rendered the family destitute. Since the violation of human rights was committed by the members of the armed forces, the Commission, in exercise of its powers under Section 19 of the Protection of Human Rights Act, recommended that it would be just and proper in the circumstances of the case to award an ‘immediate interim relief’ of Rs. 3.00 lakhs to the complainant and her children.

The Commission has asked the Ministries of Defence and Home Affairs to inform it of their compliance with the Commission’s recommendations and of the action taken.