Saturday, 27 September 2008



A vegetable vendor named Moyfar Raja, aged about 45 years, son of late Tajamul Ali, of Village Baldabaldi Part-II, P.O. Jamira under the police outpost of Jamira within the jurisdiction of Katlichera Police Stattion in Hailakandi, Assam was arrested at about 11am on 10 June, 2008 by Pijush Kanti Roy, in-charge of Jamira outpost and allegedly was tortured to death at 5 pm the same day. This information was published in local newspapers on 11 June, 2008.

Having learnt from the newspapers about the incidence, Barak Human Rights Protection Committee formed a fact-finding team. The facts stated herein are based on the preliminary report of that team.

Moyfar Raja, the deceased belonged to the poorest stratum of the society. He worked as a daily wage labourer and sometimes as a vegetable vendor. He was supporting his wife, 3 sons and 3 daughters with livelihood. According to his relatives and neighbours, he was generally a peace loving and law abiding citizen, though there was a police case pending against him.

Family members of the deceased state that he, as usual, he went to Jamira Bazar in the morning on 10 June, 2008 to sell his vegetables. They were later informed that a police team comprising of constable Bashir Uddin and Home Guard Nijam Uddin Laskar led by Sub-Inspector Pijush Kanti Roy, in-charge of Jamira Outpost picked him up. According to them, the police team was going somewhere else but when they saw the deceased they nabbed him. Legal procedure of arrest was not observed properly. Requirements of arrest issued by the Supreme Court of India in D K Basu Vs. State of West Bengal (AIR 1997 SC 610) were not fulfilled. The guidelines regarding arrest issued by the National Human Rights Commission also were not complied with. Even no 'arrest memo' was prepared, it was revealed during the said fact-finding efforts of BHRPC.

Family members of the deceased and his other companion vegetable vendors alleged that the police team started to beat him with cane sticks in front of them. They continued to do so along the way to the police outpost and even in the lock-up. At about 2 pm when his condition became critical due to a serious head injury sustained during the beatings by police, he was taken to Jamira Primary Health Centre. Doctors at the health centre referred him to Hailakandi Sontosh Kumar Roy Civil Hospital due to the seriousness of his condition. Dr. Rehana Begum, a doctor at the H S K R Civil Hospital states that the deceased was received at the hospital at about 5 pm and he was found in coma and it was also observed that he had a serious injury in the head. He died on the stretcher while he was being taken to the ward.

On the other hand, the police alleged that the deceased was wanted in connection with Katlichera police station case No. 70/03 which was registered under sections 147, 148, 149, 323, 427 and 302 of the Indian Penal Code, 1860. There was also a non-bailable warrant against the deceased issued by the Additional Chief Judicial Magistrate of Hailakandi in connection with G R Case No. 545/03, which was registered as a result of the said FIR. Constable Bashir Uddin and home guard Niajm Uddin laskar alleged that soon after the arrest the deceased complained of his ill-health. But there is no answer to the question as to why the deceased was not sent for medical examination and treatment as law also mandates it.

It appears that there were serious charges against the deceased. But allegations of offences, howsoever serious they may be, do not render a person bereft of his basic human rights. Crimes on the person of an accused or suspect are equally prohibited as in the case of any other persons. Facts alleged before the BHRPC team prima facie establish a case of torture and murder attracting punishment under section 302 and 34 of the IPC. Such cases fall under sections 154 and 174 of the Code of Criminal Procedure, 1973. Section 154 mandates the officer-in-charge of a police station to register an FIR on receiving information about commission of a cognizable offence and section 174 enjoins upon such officer a duty to report the case to the nearest magistrate if he receives information that "a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some person has committed an offence" relating to the death. This procedure is prescribed by law to ensure impartial and prompt investigation into the incidence and thus to facilitate the prosecution and conviction of the offender.

This incidence of custodial death amounts to extra judicial killing, which flagrantly violates rule of law, basic features of the Indian Constitution and Articles 21 and 22 of the Constitution as interpreted by the Supreme Court of India.

This incidence is also a gross violation of the international obligation of the state of India, which has bound itself under various human rights treaties and other instruments, such as Articles 3 and 5 of the Universal Declaration of Human Rights. India is a party to the International Covenant on Civil and Political Rights, 1966 and it is the obligation of the state of India under Article 2 of the covenant "to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant". Article 6 of the Covenant recognizes right to life stating, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The present case clearly shows the failure of Indian state to respect its obligation under this Article. Moyfar Raja was deprived of his life arbitrarily by its agents. The case also attracts Article 7 of the covenant, which reads, "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which India is a signatory, defines torture in its Article 1 as " any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". No further analysis is needed to show that this case falls under the definition. In spite of the fact that torture is universally prohibited, the Supreme Court of India held that the right to freedom from torture is also inherent in Article 21 of the Constitution.

The phenomenon of custodial death was brought before the Supreme Court in many cases. The Court issued 11 requirements to be fulfilled in cases of arrest in order to mitigate this evil in D K Basu Vs. State of West Bengal (AIR 1997 SC 610). While issuing he requirements the Supreme Court observed, "the custodial death is perhaps one of the worst crime in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be zealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel inhuman degrading treatment would fall within the inhibition of Article 21 of the Constitution. Whether it occurs during the interrogation or otherwise. If the government becomes law-breakers it is bound to breed contempt for law and would encourage lawlessness to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen". As stated above the requirements pronounced in this landmark judgment was not observed in the present case. No arrest memo was prepared as it is prescribed in requirement No 2.

The National Human Rights Commission has also dealt with the cases of custodial death and issued guidelines regarding arrest and also prescribed procedure in cases of custodial deaths/rapes. It is obvious that NHRC guidelines regarding arrest were not followed in this case.

Justice M N Venkatachalia, Chairperson (as he was then), NHRC sent letters to all chief ministers vide letter No. No. NHRC/ID/PM/96/57 dated March 27, 1997 reminding them of a circular of the commission issued on the 14th December, 1993 requiring all the District Magistrates and the Superintendents of Police to report to the Commission, incidents relating to custodial deaths and rapes within 24 hours of their occurrence. He also stated that "if post-mortem examination is not thoroughly done or manipulated to suit vested interests, then the offender cannot be brought to book and this would result in travesty of justice and serious violation of human rights in custody would go on with impunity." He continued, "with a view to preventing such frauds, the Commission recommended to all the States to video-film the post-mortem examination and send the cassettes to the Commission." The Commission also prescribed a model autopsy form and additional procedure for inquest, which were annexed to the said letter.

Justice Ranganath Misra, Cairperson of NHRC (as he was then), also sent "letters to Chief Ministers of States on the video filming of post-mortem examinations in cases of custodial deaths" dated August 10,1995. These recommendations require (i) informing NHRC regarding custodial deaths or rape within 24 hours of occurrence, (ii) Vedio-filming of post mortem and (iii) prompt and impartial magisterial enquiry. Usually these requirements are not followed in Assam. If a magisterial enquiry was ordered, the report never sees daylight in most of the cases. Where the report is made public, it happens in rare cases, it is too late to have any effect. Such magisterial inquiry is no longer seen by the people as having trustworthiness. As the saying goes, 'justice should not only be done but it should also seemed to be done', this incidence requires a prompt judicial probe.

Friday, 26 September 2008




This a humble effort to present briefly the state of the Right to Information in Assam with particular reference to the situation in Barak valley, southern part of Assam comprising of the districts of Cachar, Karimganj and Hailakandi. Although the law regarding Right to Information is fairly unequivocal in India providing the right to a broad range of information to the citizens and a mechanism for expeditious enforcement of this right it is still a rare phenomenon that a citizen gets information as he seeks within the timeframe stipulated under the Right to Information Act, 2005. It is feared that the law is strangulated slowly in its implementation by applying various tactics ranging from feigning ignorance, insensitivity, apathy, misinterpretation of law to temptation, intimidation, hooliganism, implication in false charges etc.

According to a sample survey conducted recently by Barak Human Rights Protection Committee, 93% of those applicants interviewed told that they did not get any response from the Public Information Officer within 30 days of the receipt of the application as laid down in section 7 (1) of the Act. 86 % of such applicants do not pursue the matter any further. Remaining applicants (14%) either file complaints with the Assam State Information Commission or prefer appeal to an officer higher in rank to the PIO in the same public authority. In the former case, the SIC transfers the applications under section 6 (3) in almost all cases to either the PIO or the Appellate Authority of the concerned public authority. In case where an appeal is preferred to the Appellate Authority the appellants get responses, according to the said survey report, in just 45% of the cases. 73 % of those who do not get response from the Appellate Authority do not make the Second Appeal. In most of the cases where the second appeal are made the SIC without hearing the case itself forwards the petition to the Appellate Authority asking to hear the case giving a timeframe of usually 30 days.

In cases where the First Appeal is preferred, the SIC transfers the Applications to either the PIO or the Appellate Authority and whether in the complaint stage or in the second appeal stage, the redtapism starts invariably. The Appellate Authority or the PIO writes letters to other officers requesting them to supply the information within a specific time limit, in most cases it is 30 days, as he is to furnish them to the applicant with intimation to the applicant. The time limit gets passed and another set of such letters is issued providing another time limit. In the process a period of six months to one year is elapsed.

Meanwhile another unofficial process starts vigorously which involves both temptation and intimidation. 96% of those applicants, who went through this stage and interviewed in the said survey, stated that they faced both temptation and intimidation in one or the other form.

In this regard, communication of Dr. K M Baharul Islam, Chairman and CEO of South Asian Regional
Development Gateway in Guwahati and a public spirited person hailing from Karimganj, Assam, deserves to be quoted in some length: “Read your email. I had the chance to represent a case in SIC Assam from my area. Though the SIC was very categorically given the verdict in front of all the parties imposing the highest penalty on the earring officer, it was an utter shock when I saw the decision on the website that inserts a 'penalty confirmation' hearing at a later date on 3/6/08 !!

“And, on 3/6/08 he has become too apologetic and as expected got the penalty waived!! Look what signal it will give to the other officers that you may do anything but later by giving apology you may get away.

“This officer says he was ignorant, whereas time and again for almost 2 years he made the applicant a mental torture, thought shown various provisions of the RTI Act...public protests, news paper reports all these but he was still 'ignorant' of the provision.

“Even regarding compliance he did not give the documents "authenticated' by him but called the applicant at night on a Sunday to his quarter and with force got the 'sign' of receipts of the documents. An FIR was filed against him after this incident. But as he was present alone at the time of rehearing he just showed the receipts to the SIC Assam and gave an impression that like a good guy who has supplied all the information.

“On the side line, I contacted friend of mine who is an MLA and a member of the Public Accounts Committee where all the reports of this particular Hariyali project were submitted. You will not believe how much money has been embezzled off from this project with fictitious names of works, beneficiaries etc. No wonder that the Officer did not want to give details information to the public...

“This is a very sorry state of affairs. Within moments of taking this case in hand to represent the applicant in
SIC hearing I got threatening calls from "SULFA" ...look at the nexus. Police is now investigating the case and my usual security cover (As Head of a Foreign Mission) has now been increased...So much so for a RTI case.

On the introspective side, I found many times the RTI applicants are also very ignorant of the basic provisions, unnecessarily complicate things without 'asserting' their rights...jump to sign on dotted lines...fears any petty officials sitting in a govt. office ...."Sir" them all the time...and make it very difficult to support their cases as they accept / sign many things under pressure and then start
crying 'foul'.” (Emphasis his)

In another case, of which I have first hand knowledge, members of a local community organization named Kishan Bikash Samity is facing grave criminal charges falsely. Sahidul Haque Laskar, secretary of Kishan Bikash Samity, submitted an application to the PIO of the office of the Block Development Officer, Banskandi Development Block on 9 May 2007 seeking information regarding the implementation of the 11th Finance Commission Award, 12th Finance Commission Award, Indira Avash Yojna and Tara Pump and Ring Well schemes undertaken in the different Gaon Panchayats of the block. But he did not receive any information. Again on 22 June 2007 he filed first Appeal petition to the BDO of the Block, as he is designated as the first appellate authority under the RTI Act, 2005 asking him to furnish the information as he had not received the same. But when he did not receive any information he submitted a petition before the Assam SIC on 31 July 2007 and the SIC transferred the same on 27 August 20007 to the Chief Executive Officer, Cachar Zila Parishad for furnishing the information. Mr. Laskar sent another petition to the SIC on 18 September 2007 as a reminder to his letter dated 31 July 2007. Then he sent another petition to the SIC vide his letter dated 18 January 2008 informing the SIC that on receipt of the transferred petition from the SIC the
CEO, Zila Parisahd, Cachar vide her letter dated 10 October 2007 directed the BDO, Banskandi Development Block to attend her office on 15 November 2007. On the other hand, that the PIO of the Block transferred his petition to each of the Gaon Panchayat Secretaries under the Block on 1 August 2007. Then the BDO issued another letter to each of the Secretaries of the Gaon Panchayat asking them to furnish the information to him on or before 30 November 2007. The CEO once again issued another letter dated 29 October 2007 to the BDO asking him to attend her office with all the relevant documents on 15 November 2007. The BDO issued a letter dated 26 November 2007 to each of the GP Secretaries to furnish information within 7 days of the receipt of the letter.

Eventually almost after seven months of tribulation some information were furnished to the applicant. But most of these were incorrect, incomplete and misleading. Hence he appealed to the SIC vide his letter dated 18 January 2008 for directing the BDO to furnish complete and correct information. It was also stated that the applicant did not receive any information regarding the Tara Pumps and the Ring Wells from the BDO. Moreover, in the list of beneficiaries under the IAY scheme, the father’s name of any of the beneficiaries was not mentioned making it difficult for him to ascertain whether the lists furnished to him were correct or not. Further it was prayed that penalties as per the provisions of the Act may be imposed on the erring officers.

Mr. Laskar confided in me that before submission of appeal to the SIC on 31 July 2007 many persons allegedly on behalf of the said Block Development Officer approached him with offer of handsome rewards in the form of cash or kind. After submission of the said appeal the attitude of these persons turned upside down. They started to intimidate the applicant. The threat meted out to him included that of prosecution, arrest, harassment of relatives and physical assault, injury and even death.

The SIC fixed 3 May 2008 for hearing first but did not take hearing on view of the absence of the respondents. The next date was fixed on 17 June 2008. A false FIR was registered under section 143, 447, 341, 353, 383, 379 and 487 of the Indian penal Code, 1860 vide Lakhipur Police Station Case No. 148/08 against 5 members of Kishan Bikash Samity and 30 other unidentified persons of the locality.

With the excuse of arresting those unidentified persons, police raided houses of the members of Kishan Bikash Samity and their sympathisers and harassed the inmates. Mr. Sahidul Haque Laskar applied for pre-arrest bail in the Gauhati High Court apprehending arrest though he was not named in the FIR. High Court granted him pre-arrest bail vide B A No. 2447 of 2008. The High Court accepted that the ground for apprehension of arrest is the date of hearing on 17 July 2008 before the SIC and mentioned in the bail order that bail should be granted so as he can appear before the SIC on that day

Hearing was held in the absence of the respondents. As requested I accompanied the applicant and presented the case before the SIC on his behalf. During my oral submission the State Information Commissioner Mr. B K Gohain asked for the reasons for seeking such voluminous information. When I replied that the organization of the applicant wants to hold a Public Hearing or Social Audit of the works of Panchayati Raj System in his Development Block Area he repeatedly told me that this is “unauthorized”!!

The SIC ignored the provisions of section 6 (3) of the Right to Information Act, 2005 regarding information relating to Tara Pumps and Ring Wells sought for by the applicant. The said section of law provides that “where an application is made to a public authority requesting for an information,—(i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application”. The SIC directed after more than seven month of filing the application “the CEO, Zila Parishad and the BDO of Banskandi Development Block to furnish information relating to Tara Pumps and Ring wells to the complainant within 30 days of the date of this order if the information was available with them. In case it is not available, they should inform the complainant as to the public authority which implements the schemes”.

The SIC admitted that the information furnished were incomplete and misleading and “direct(ed) the
BDO, Banskandi Development Block to instruct the Secretaries of the Gaon Panchayats under his jurisdiction to allow the complainant to inspect the records containing the names of the beneficiaries under the IAY scheme and to take notes of the fathers’ names of the beneficiaries under the IAY scheme which should be certified by the Secretaries of the Panchayats. This should be completed within 30 days from today”. But SIC also praised the public authorities for furnishing such information stating that “it was seen by the Commission that the Secretaries of the GPs had taken pains to get the lists of the beneficiaries under these schemes copied electronically inspite of their limited resources which is commendable.” The Act in section 4 (1) (a) lays down that ‘every public authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”. It is now nearly three years after the Act came into force and still copying names electronically after seven months of filing application is a commendable work!!

There is a perception that the Right to Information Act, 2005 is stronger and more effective than the earlier versions of the law because it has teeth in the form of penalty clause [section 20 (1)] which lays down that “where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.” But contrary to the law, it seems that where the PIO is not present in the hearing of an appeal against him despite service of notice it is the duty of the SIC to take his burden on its own shoulder and let off the delinquent!! So, it is seen that the teeth of this Act also can not bite. It is an undisputed universally recognized fact that without sanction a law is not effective and cannot serve its purpose.

The survey referred to above cites that only 8% of the applicants who seek information under the RTI Act, 2005 eventually get information and other 92% have to give up and incur financial and other types of loss. Is the RTI is slowly strangulated in Assam before it can even cross its infancy?