Inquiry ordered Into death of new born baby, over alleged medical negligence

The New Delhi based statutory child-rights body, the National Commission for Protection of Child Rights, (NCPCR) asked the deputy commissioner of Hailakandi district of the North East Indian state Assam for a report on how the first child of Mr Bijoy Dev and Mrs Tumpa Dev of Ward No. 13 at College Road in Hailakandi town died on 1 April 2012 after delivery.

The nation's child rights watchdog moved into action after receiving a complaint from the Barak Human Rights Protection Committee (BHRPC) on 11 April. It was alleged that the child died due to negligence and dereliction in duties by the doctors of the Sontush Kumar Civil Hospital of Hailakandi. The NCPCR registered the case based on the complaint as case No. 13016/32389/2010-11/COMP.

The BHRPC alleged that Mrs Dev went in labour, and was brought to the S K Roy Civil Hospital at about 1pm on 30 March. No doctors saw the woman and with the help of nurses, she gave birth to a male child. It was a forced birth as some doctors who later examined the baby and his mother said she was in need of caesarian section and that complications leading to the death arose due to the injuries caused to the baby during delivery. The condition of both the mother and child started to worsen soon thereafter. Still no doctors in the hospital saw them. They then went to the Silchar Medical College and Hospital, Silchar (SMCH) and the baby died there at about 6pm on 1 April.

According to BHRPC, this appears to be a clear case of causing death by negligence within the meaning of section 304A of the Indian Penal Code, 1860, even keeping in mind the rules laid down by the Supreme Court of India in Jacob Mathew Vs State of Punjab (2005) (Appeal (Crl.) 144-145 of 2004) for application of the section in cases of negligent and rash acts or omissions of doctors. Most importantly, it is a prima facie case of violations of fundamental right to life as laid down in Article 21 of the Constitution of India. In a catena of cases, the Supreme Court held that the right to health care is a part of the right to life.

The rights group also claimed that the negligent conduct of the doctors, particularly that caused the death of the baby also amounts to violations of the rights enshrined in Article 25 of the Universal Declaration of Human Rights, 1948. The allegations also constitute violations of provisions of legally binding human rights instruments to which India is a state party. Such as the right to life provided under Article 6 of the International Covenant of Civil and Political Rights, 1966. As a positive entitlement, the right to health and health care is recognised in Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966. Further, it is also a case of violations of relevant provisions of other United Nations conventions, such as Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) and Article 6 of the UN Convention on the Rights of the Child, 1989 (CRC).

The case also falls under section 13 (1) (j) of the Commissions for Protection of Child Rights Act, 2005.

Secretary Lov Barma wrote on 17 April 2012 (vide No AS-13016/32389/2010-11/COMP/10930) to the Hailakandi Deputy Commissioner, Mr A Nanda Babu Singha, asking for a report within a moth.

After receiving the notice, Mr Singha formed a three-member inquiry committee on 3 May 2012, headed by the Hailakandi circle officer Dhrubajyoti Dev. The other two members are the joint director of health and the district programme officer of the National Rural Health Mission (NRHM). Mr Singha asked the committee to file their report within 15 days.
                                                                                                                     
This news was first published in the Newsblaze and available at http://newsblaze.com/story/20120511095852lask.nb/topstory.html

Human Rights Defenders Attacked in Hailakandi, Assam - Friends for Freedom

Human Rights Defenders Attacked in Hailakandi, Assam - Friends for Freedom

Human Rights Defenders Attacked in Hailakandi, Assam

APPEAL FOR URGENT ACTIONS PRGRAMME

Urgent Appeal Event No. 08/2009, Date: 3 July 2009

Subject: Human Rights Defenders Attacked and Injured for Working against Corruption in Assam, India

ISSUES: Right to Defend Human Rights, Right to Information, Development & Employment and Police Inaction.

BARAK HUMAN RIGHTS PROTECTION COMMITTEE (BHRPC), a human rights organisation working in Assam, India, requests your urgent actions in the following situation in North East India:

BRIEF DESCRIPTION OF THE SITUATION: BHRPC has received information from reliable sources that Mr. Choudhury Charan Gorh, a human rights defender working as Secretary, NGO HELP, Mr. Shyama Prasad Kurmi, member, All Assam Students Union (ASSU), Ms Shanti Gorh, Ms. Premlata Ree, Ms Basanti Koll, Ms. Gouri Koll, Mr. Bimal Mall, members of the public were attacked and injured severely on 30 June, 2009 in Hailakandi, Assam (India).

BHRPC has been informed that the above mentioned human rights defenders and members of the public were attacked by a team of hired goons comprising of Mr. Kamal Kurmi, Mr. Binod Koll, Mr. Debashish Ree, Mr. Lakkhi Narayan Bhor, Mr. Bharat Ree, Ms. Heeralal Chowhan, Mr. Mahadev Kalindri and others led by Mr. Prakash Bhor at the instance of Mr. Raj Kumar Bhor, elected president of Aenakhal Gaon Panchayat (grass root level unit of the local governance institution—the Panchayati Raj) in a public meeting held at the common campus of J. R. Pandey L P School and Rama Janaki M E School, Aenakhal Bazar, Monacherra under Lala Police Station, Hailakandi, Assam.

The public meeting was convened jointly by NGO HELP, a village level organisation working for practical realisation of rural empowerment, development, right to information and right to employment under the National Rural Employment Guarantee Act, 2005 in Aenakhal-Nishchintapur Zila Parishad Constituency, Hailakandi (Assam), Bowar - Aenakhal Unit of the ASSU and Mazuri Shramik Union, a local labour organisation to create awareness among the people about various development schemes of the Union Government of India and the State Government of Assam such as Indira Avas Yojana (a rural housing project for indigent people), National Rural Employment Scheme (under the NREGA), Gram Sadak Yojana (rural infrastructure project) etc. and to discuss the scale of corruption in the implementation of these schemes in the area. These schemes are implemented generally through the local self governance system—the Panchayati Raj. The District Magistrate of Hailakandi, Superintendent of Police, Hailakandi, Officer-in-Charge of Lala police station were duly informed and requested for providing security. There was a fear that an attempt may be made to disrupt the meeting by those who are involved in malfeasance in the above mentioned development schemes and projects, particularly the Gaon Panchayat President Mr. Raj Kumar Bhor and his accomplices. But no arrangement of security was made by the police. Hardly the meeting was started at about 3pm on 30 June, Mr. Prakash Bhor, the younger brother of the G P President, made the foray with his team who were bearing weapons such as daggers, sticks, swords etc. The attackers started to assault the organisers and the members of the audience indiscriminately. The organisers ran away to save their lives and the people got dispersed.

The injured persons have been admitted in the Public Health Centre, Lala for treatment and a case has been registered concerning the attack in the Lala Police Station vide Lala P S Case No. 135/2009 under sections 147, 148, 149, 323, 379, 427 of the Indian Penal Code, 1860. But so far no visible actions have been taken by the police and administration either to investigate the case and bring the perpetrators to justice or to deter them from committing further offences. BHRPC has been informed that other members of NGO HELP, Local Unit of the ASSU and Mazuri Sramik Union and their families are still receiving threats and living in great apprehension and fear.

The way the attack was conducted and the case is being handled indicates that the perpetrators have been receiving support and encouragement from the persons enjoying political power and the police.

ACTIONS REQUESTED: Please write to the authorities in India urging them
To take all necessary actions to guarantee the physical safety and mental integrity of Mr. Choudhury Charan Singh, Mr. Shyama Prasad Kurmi, Ms Shanti Gorh, Ms. Premlata Ree, Ms Basanti Koll, Ms. Gouri Koll, Mr. Bimal Mall, and other members of NGO HELP, Local Unit of ASSU and Mazuri Shramik Union and their family members;
To conduct a prompt, thorough and impartial investigations into the incident of attack on them and charge the attackers accordingly;
And to conduct a prompt, thorough and impartial investigation into the allegations of corruptions in the implementation of the development schemes in Aenakhal-Nishchintapur Zila Parishad Consituency area.

Or you may forward the following letter adjusting the salutation part to the addresses given bellow:

To
******************************,
******************************,
******************************

Subject: Urgent Appeal Regarding Attack and Threat to Life to Human Rights Defenders in Hailakandi, Assam.

Dear Sir/Madam,
I am deeply concerned over the report of attack on the human rights defenders Mr. Choudhury Charan Gorh, Secretary, NGO HELP, Mr. Shyama Prasad Kurmi, member, All Assam Students Union (ASSU), and members of the public Ms Shanti Gorh, Ms. Premlata Ree, Ms Basanti Koll, Ms. Gouri Koll, Mr. Bimal Mall on 30 June, 2009 in Hailakandi, Assam (India).

I am informed that the above mentioned human rights defenders and members of the public were attacked by a team of hired goons comprising of Mr. Kamal Kurmi, Mr. Binod Koll, Mr. Debashish Ree, Mr. Lakkhi Narayan Bhor, Mr. Bharat Ree, and others led by Mr. Pakash Bhor at the instance of Mr. Raj Kumar Bhor, elected president of Aenakhal Gaon Panchayat (grass root level unit of the local governance institution—the Panchayati Raj) in a public meeting held at the common campus of J. R. Pandey L P School and Rama Janaki M E School, Aenakhal Bazar, Monacherra under Lala Police Station, Hailakandi, Assam.
The lack of police action in providing security to the meeting as requested by the organisers and in investigation of the case which was registered with the Lala Police Station vide. 2009, suggests that Mr. Raj kumar Bhor is using his influence to prevent the due process of law from taking its own course. In these circumstances, I request that you immediately take swift assertive action to ensure that Mr. Choudhury Charan Singh, Mr. Shyama Prasad Kurmi, and other members of NGO HELP, Local Unit of ASSU and Mazuri Shramik Union and their family members remain safe throughout the investigation of the case and after, and that an investigation is ordered into the allegations of corruption in the implementation of the rural development schemes in the area. I also request that the accused in the above mentioned case be taken into custody.

I believe that human rights defenders carry out a valuable and necessary service, often at the expense of their lives. The Government should give their safety utmost priority.

Yours sincerely,

Your Signature

Your Address

Addresses to be sent to:
1. The Prime Minister's Office,
South Block, Raisina Hill,
New Delhi-110 011, India
Telephone: 91-11-23012312.
Fax: 91-11-23019545 / 91-11-23016857
Email: manmohan@sansad.nic.in ,
pmosb@pmo.nic.in

3. Home Minister,
Ministry of Home Affairs
Government of India,
North Block, Central Secretariat,
New Delhi - 110 001
Phone: 23092011, 23092161,
Fax : 23093750, 23092763
Email: websitemhaweb@nic.in

4. The Chief Justice of India,
The Supreme Court of India,
Tilak Marg, New Delhi-110 001 (India)
PABX NOS: 23388922-24,23388942-44,
FAX NOS: 23381508, 23381584, 23384336/
23384533/23384447
e-mail at: supremecourt@nic.in


5. The Chairperson,
National Human Rights Commission
Faridkot House,Copernicus Marg,
New Delhi-110001, INDIA
Fax: +91-11-23386521
E-mail: covdnhrc@nic.in

6. The Chief Minister of Assam,
Assam Secretariat, Dispur
Guwahati-6, Assam
Phone: (O) 0361-2262222, 2266188, 2237043
( R ) 2360291, 2361112

7. The Chief Justice,
Gauhati High Court,
Mahatma Gandhi Road,
Guwahati-781001
Assam, India
Phone & Fax: 0361-2735866,
0361-2735877
Email: hc-asm@nic.in

8. The Chairperson,
Assam Human Rights Commission,
STATFED HO Building
Bhangagarh, Guwahati
Pin - 781 005 (Assam), India
PHONE: (+91 361) 2529450, 2527076,
2452387, 2457369
FAX: (+91 361) 2529450
EMAIL: secy-ahrc@nic.in

9. The Director General of Police,
Government of Assam, Ulubari
Guwahti-5, Assam

10. The District Magistrate of Hailakandi
Hailakandi, Assam

URL for the pdf format:
http://pages.google.com/edit/bhrpc.net/APPEAL_FOR_URGENT_ACTIONS_PRGRAMME__.pdf

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LET’S MOURN THE DEATH OF MOYFAR RAJA

WALIULLAH AHMED LASKAR

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.