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B.L. Hansaria, J.—Oinam : a small unruffled hamlet in Senapati District of Manipur, the farthest north-eastern State of the country. It got a big jerk on 9th July, 1987 when 21 Assam Rifles company post was raided by the National Socialist Council of Nagaland (NSCN) hostiles. In the said, 9 soldiers were killed and three were wounded. This apart, 120 weapons and a large quantity of ammunition were taken away. The combing operations which followed is the subject matter of the present Civil Rule out of which his Miscellaneous Case has arisen. The averments of the petitions, Naga Peoples'' Movement for Human Rights, are that in the wake of combing operation-"Operation Bluebird", the armed forces have committed murders, tortures, assault, rape and destruction and burning of houses in Oinam and surrounding villages of Senapati district, In the writ petition, details of these atrocities have been given. By this application, certain interim reliefs have been sought for. The one which has been presently pressed by Smti Haksar is relating to an enquiry by this Court about the loss of lives, limb, torture, rape, destruction of movable and immovable properties and other damages suffered by the people of Oinam and its neighboring areas at the band of the armed forces. During the course of her submission, the learned Counsel prays that the enquiry may be by an independent commission consisting of one or more persons as deemed fit and proper by this Court. It has been urged that in view of the averments made in the writ petition which clearly make out a case of violation of fundamental rights guaranteed under Articles 14, 19(1), 21, 23, 25 and other constitutional and legal rights of the Respondents of Senapati district, the present is a fit case where this Court should apprise itself about the excesses committed by the armed forces on the residents of Oinam and its neighbouring villages.
As the present application is to aid this Court in disposing of the main petition, it has to be first seen whether enquiry prayed for is in any way connected with the reliefs sought for in the writ application. Smti Haksar urges that as one of the prayers to the writ petition is to pay exemplary damages to:
(a) families of the men tortured to death;
(b) women assaulted, raped or who suffered in any way;
(c) house owners whose houses have been dismantled or burnt down, or those forced to leave their villages;
(d) men and minor boys who were severely tortured, beaten or illegally detained;
(e) families whose grais, domestic animals or other goods were looted; and
(f) people forced to give their labour.
The enquiry is imminently called for Shri Chetia. learned Additional Senior Central Government Standing Counsel, has urged in this connection that this Court cannot be approached merely for seeking compensation for the above wrongs, even if committed. It is contended by the learned Counsel that civil court is the proper forum for this purpose. In reply, Smti Haksar submits that this Court hag ample power and would be acting within its jurisdiction to award compensation for violation, inter alia, of the fundamental rights. In this connection, our attention has also been invited to Section 6 of the Armed Forces (Special Powers) Act, 1955, for short, the Act, which prohibits filing of suit etc. except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the aforesaid Act. Smt. Haksar would not like us to leave hundreds of people who have suffered due to various excesses commuted by the Assam Rifles to file individual suits wherein the question of previous sanction of the Central Government would also arise.
2A. Another submission in this regard is that present is the most appropriate case of public interest litigation and the Petitioner which is championing the cause of human rights of Naga people is the most appropriate body to take up the cause of the victims to seek proper redress, including compensation. In this context, we have been referred to Rudal Shah v. State of Bihar AIR 1983 SC 1036 Sebastian M. Hongray v. Union of India AIR 1984 SC 1026 and Peoples'' Union for Peoples'' Union for Democratic Rights Vs. State of Bihar and Others, wherein the Supreme Court had ordered for payment of compensation on being satisfied, inter alia, about violation of the fundamental rights. What has been stated in para 10 of Rudul Sah is almost clinching in this regard. This is what Chandrachud, C.J. observed therein:
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore the State must repair the damage done by its officers to the Petitioner''s right. It may have recourse against those officers.
The compensation assessed was said to be over and above, damages which could be recovered by filing suit. We are therefore of the firm view that it is within the power of this Court to award compensation as one of the reliefs in case it be satisfied that there has been gross violation of fundamental rights guaranteed to the citizens of this country.
On the question whether there has been any violation of fundamental rights in the present case we may not labour much if the allegations, inter alia, of torture, death and rape, be correct there can be no doubt that there had been gross violation of Article 21 of the Constitution. The learned Advocate General, Manipur, however submitted that not to be killed by torture and not to be raped are rot fundamental rights available to the citizens of this country. We are flabbergasted at this submission. The sublime and sacred document embodying high ideals, proclaiming among other things dignity of the individual and guaranteeing that:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
shall lose all its meaning, message and ethos if right not to be killed torture and not to be raped were not to be regarded fundamental rights of a citizen of this enlightened and civilised country where rule of law, and not rule of jungle prevails, where light is not right, but right is might.
In trying to satisfy us about the permissibility of an dependent enquiry. Smti. Haksar has referred to Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, She read out to us this context paras 14 and 81 of the judgment. In para 14 Bhgawati, J. (as his Lordship then was) stated that in case is approached by poor and disadvantaged who cannot possibly produce relevant materials before the Court in support of their se and equally where an action is brought on their behalf by a taken acting pro bono public, it would be almost impossible for on to gather the relevant materials and place it before the part. In such a case, the Supreme Court would be failing discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the Petitioners were unable to produce the relevant materials for the Court. If the Supreme Court were to adopt a passive approach and line to intervene in such a case because the relevant materials were not produced before it by the parties seeking intervention the fundamental rights would remain a teasing illusion so (sic) as the poor and disadvantaged sections of the community are concerned. It was stated that it is for this reason that the Supreme Court has evolved the practice of appointing commissions for gathering of facts and data in regard to a comment of breach of a fundamental right made on behalf of be weaker sections of the society. In para 81 Pathak J. (as Lordship then was) stated as below:
In various cases, because of the peculiar facts and circumstances of the case the party approaching this Court for enforcement of fundamental rights may not be in a position to furnish all relevant materials and necessary particulars. If, however, on a consideration of the materials placed, the Court is satisfied that a proper probe into the matter is necessary in the, larger interest of administration of justice and for enforcement of fundamental rights guaranteed, the Court in view of the obligations and duty cast upon it of preserving and protecting fundamental rights, nay require better and further materials to enable the Court to take appropriate, action and there cannot be anything improper in the proper exercise of Court''s jurisdiction under Article 32 of the Constitution to try to secure the necessary materials through appropriate agency. The Commission that the Court may direct is essentially for the Court''s satisfaction as to the correctness or otherwise of the allegation of violation to decide the course to be adopted for doing proper justice to the parties in the matter of protection of their fundamental rights.
Some other decisions wherein the Supreme Court ordered enquiry by independent persons or bodies have also been brought to our totice by Smt. Haksar. These decisions are; Sheela Barse Vs. State of Maharashtra, ; Mukesh Advani v. State of M.P. AIR 1985 SC 1383 ; and Sheela Barse (II) and Others Vs. Union of India (UOI) and Others,
On being confronted with these decisions, the reply of Shri Chetia is that what can be done by the Supreme Court under Article 32 of the Constitution would not be available to this Court while acting under Article 226. This contention is easily met by Smt. Haksar by referring to para 15 of Bandoua Mukti Morcha (Supra) where it has been observed that what has been stated regarding appointing of commission in exercise off jurisdiction under Article 32 would apply equally in relation to the exercise of jurisdiction by High Court under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred on the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts under Article 226. The width of Article 226 was stated to be indeed wider because the High Court are required to exercise this jurisdiction not only fur enforcement of fundamental rights but also for enforcement of any legal right.
There is thus no doubt in our mind that in a proper case this Court would be competent, indeed, duty bound, to know by ordering an enquiry whether fundamental and legal rights have really been infringed before deciding what relief should be given for the infringement.
We are now confronted with the question as to whether any enquiry should be ordered in the present case. This question has to be answered keeping in view various aspects of the matter. The first is that the State of Manipur has been afflicted by Naga insurgency since early 1950S. as stated in the counter-affidavit of the Union of India. Sepapati district is said to be one of the worst affected areas of this insurgency. The NSCN is alleged to be the main insurgent group having its base inside Burma and sympathisers in the State of Manipur. This organisation demands secession from the Union of India and to meet this situation, aid of Assam Rifles was sought by declaring Senapati district as a disturbed area u/s 3 of the Act. The attack on the armed forces on 9th July, 1987, was indeed very grave inasmuch as 9 soldiers were killed and three wounded. This apart, 124 weapons and a large quantity of ammunition were taken by the hostiles. The security forces had to start combing operation; and they have to be allowed to take all actions which are deemed necessary to discharge their onerous duty; of course, within the parameters visualised by the Act. When combing operations are carried on, it is apparent that people of the locality would suffer. They shall have to undergo some suffering and this Court would be unjustified in taking serious note of some excess here and some excess there. The armed forces cannot, however, be allowed to trample the fundamental rights of the citizens. In this context we would quote what was observed by this Court, speaking through one of us (Hansaria, J.) in Nungshitomb Devi v. Rishang Keishing (1982) I GLR 756 (Special Leave Petition against which was dismissed by the Supreme Court on 20.4.83 in SLP No. 3257/83) in para 7A:
...We have no hesitation in stating that the entire nation is indebted to the armed forces for their assistance rendered in distress and difficult days and there can be no two opinions about their contribution in quelling even internal disorders. But a harmony has to be struck. A balance between crushing of violence and crushing of liberty has to be found and the legislature has itself done so. It may also be remembered that we have been a free and democratic country for over 35 years by now. Ours is a matured Republic. We occupy a place of pride in the comity of nations. We are a signatory to the International covenant on Civil and Political Rights. Our armed forces have a bright image. They are disciplined and imbibed and imbued with the spirit of service and sacrifice. Let them undergo the discipline of fundamental rights also when operating against their own countrymen.
There is another aspect of the matter. Demand of secession is unconstitutional. Taking up of arms to achieve this end cannot at all be countenanced. Killing of the armed forces personnel deputed to meet insurgency is a crime against the nation. The members of the armed forces while discharging their duty of preserving the unity and integrity of the nation perform a solemn task and law has to permit them to take all such actions which are reasonably necessary to meet the insurgency. They cannot be made ineffective at all in this regard. But then if excesses are committed by the armed forces there has to be some forum where the grievances can be heard and required action and step taken to redress the grievances. In the present case there having been allegations of gross excesses right from the Council of Ministers of Manipur which have been focused by the media, this Court being the custodian and sentinel on the qui viva of the fundamental rights of the citizens has to do all that is called for to come to the rescue of the victims of the excesses.
On Shri Chetia being asked as to why the Union of India is not in favour of any enquiry into the excesses even by the CBI which would stop the effort of interested person to malign the forces which is the aim of these persons as stated by Lt-General Maloy Kumar Lahiri, Director General of Assam Rifles, whose statement in this regard is brought to our notice by Shri Chetia, the answer of the learned Counsel is that the present is not the proper time as the activities of the NSCN are still continuing and the security forces have not been able to recover all the weapons and amunitions taken away by the hostiles. As to the continuation of the activities of the NSCN our attention is invited to a newspaper report finding place in page 3 of the Sentinel, 6th November, 1987, stating that a contractor was shot dead by the NSCN. As Senapati district was declared as disturbed area way back in 1972, and there is no knowing as to when the NSCN activities would come to an end, we do not think if an enquiry, if otherwise called for can await stopage of secessionist activities of the NSCN. This apart, as 41/2 months have passed since the brutal and uncalled for attack on the security forces, we would think that an enquiry may not be denied on the ground that the arms and amunitions have not yet been recovered by the security forces.
We have another important question to answer. The same is whether there are enough materials before this Court to be satisfied that there has really been violation of fundamental rights or legal rights as alleged. Our attention has been drawn to this requirement by the learned Advocate General, Manipur, by referring to what was stated by Pathak, J. (as his Lordship then was) in Bandhua Mukti Morcha (supra):
Before this Court proceeds to exercise its power under Article 32 of the Constitution for enforcing the fundamental rights guaranteed, this Court has to be satisfied that there has been violation of the fundamental rights.
For this purpose, we have to go through the writ petition containing necessary averments and the affidavit-in-opposition of the Union of India in the present case with which the affidavits from 48 villagers/villages have been annexed.
The broad allegations of the Petitioner are: (a) At least 27 men, women and children have been either tortured to death or have died due to harassment, forced starvation and shock suffered by them. The names and other details of these persons have been given in para 5 of the writ petition. (b) 2 women of Phuba village named in para 6(a) were raped. (c) Two woman pregnant worn were compelled to give birth to their babies in full view of the army personnel. (d) More than 300 men-young and old, were severaly beaten and given electric shocks; their limbs were broken whilesoms of them were buried alive in neck-deep mud. An incomplete list of these persons finds place in Annexure B of the petition. Para 7 contains names of 17 persons who were given severe electric shock. (e) There have been systematic dismantling and burning of houses of villagers; a list of 125 such houses finds place in Annexure-B of the petition. (f) There has been large-scale looting of houses. (g) Many public figures including independent MLA Shri B. Bance and 6 elected members of the Senapati District Council were illegally detained. (h) Two other political leaders were also detained and tortured.
These allegations have been denied by the Respondents. Before we take up the case of Union of India, we may note the broad stand of the State of Manipur as it appears from the counter-affidavit filed by its Deputy Secretary (Home). According to it, the alleged excesses are directed against the defence forces who work directly under the Government of India and the allegations may be verified by a Central Agency preferably the C.B.I. to ascertain the truth. Some of the allegations made by the writ Petitioner have been described as highly exaggerated and not correct. As to the prayer of the writ Petitioner that an enquiry into the excesses may be ordered to be conducted by the Superintendent of Police, Senapati District, it has been averred in this affidavit that "it is not practicable or administratively possible for the Superintendent of Police, Senapati District to undertake the task in view of the fact that Assam Rifles is a Central Force and work directly under the Government of India. The enquiry may be entrusted to an independent Agency, preferably the C.B.I."
The Union of India has denied all the allegations. A bird''s eye view of the 48 affidavits annexed along with counter of Respondents 1 and 2 shows that many of the allegations have been refused by the persons swearing in the affidavits. Among these deponents are the residents and elders of different villages where the excesses are alleged to have taken place. These deponents have stated, inter alia, that nobody from their villages had been either tortured, beaten or assaulted by the Assam Rifles personnel. It is, however, worth pointing out that none of the deponents has said that any of the persons named in para 5 of the petition is alive. The residents of Phuba Khuman village have specifically denied that the two women named in para 6(a) of the writ petition had been raped by any Assam Rifles personnel. 12 persons of Khongdei Khuman village, who are among the 17 who were allegedly given severe electric shock as per averments made in para 7 of the writ petition, have specifically denied the same. Some of the persons who were allegedly illegally detained as per averments made in para 11 of the writ petition have refuted the same. The deponents who have denied the allegations of torture, assault, rape, dismantling or burning of houses etc. belong to some of the villages of. Senapati district wherein the alleged excess had taken place according to the Petitioner. Some village elders of Oinam, Purul, Thingba Khonou, Thingba Khollen and Kaoda have denied that any excess was committed on the civilian by the Assam Rifles. Many of the deponents have appreciated the activities of Assam Rifles in protecting the villagers from the excesses of hostiles. One of the deponents ( Shri S.K. Hushon ) is the vice chairman of North Autonomous District Council. He has denied any excess having been committed by the security forces. Though the number of affidavits sworn is 48, the number of signatories varies from 1 to 18. It would thus seen that quit a large number of villages and villagers have come the allegations of the Petitioner, whereas the Secretary of the Petitioner is the only person to have solemnly affirmed the allegations made in the writ petition.
Confronted with the large number of affidavits filed Respondents No. 1 and 2, a submission has been made before her Smt Haksar that we may not go by all that has been (sic) in these affidavits in as much as, according to the learned Counsel, these might have been obtained by force or attention has been invited to the affidavit sworn which was annexed with the counter of the Respondents. Learned Counsel filed another affidavit (sic) than himself making some allegations against the Assam Rifles. Just because there are two versions of Shri (sic) we cannot hold that no reliance should be placed (sic) other affidavits sworn by other persons.
To bslstor up the case of the Petitioner, our attention (sic) invited by Smt. Haksar to certain reportings in the (sic) and what was stated by the Council of Ministers (sic) in a (sic)lasmotandum given to the Hon''ble (sic)House Minister of the Central Government. Though what has been reported in Patriot of 31.8.87, India Today of 30.9.87; Indian Post of 19th and 22nd October, 1987 do speak of excesses upon, and harasment and torture of, the Naga population by the Assam Rifles, we have not deemed it fit to act on these newspaper reports inasmuch as no affidavit of any of the reporters has been filed by the Petitioner. As to the memorandum of the Council of Ministers submitted to the Hon''ble Home Minister of the Central Government, which does speak of excesses committed by the Assam Rifles, we would say that it lacks in detail and as such is not very helpful for the purpose at hand. This apart the somewhat different stand taken by the State In its affidavit filed in the present case cannot also be ignored by us.
There is no doubt in our mind that in a case of the present nature, we would be justified in ordering enquiry only on existence of two conditions: (i) compelling circumstances and (ii) full satisfaction about establishment of a prima facie case relating to violation of fundamental rights. This apart, an enquiry to be ordered by us cannot be omnibus; it has to be confined to specific act(s). Further it has to be by a person, body or agency which commands confidence of both the sides. Though the first condition seems to exist in the present case we are not satisfied in view of our aforesaid analysis of the materials on record, about the existence of the second of the aforesaid conditions. We have pointed our about the dearth of materials put on record by the Petitioner which is in sharp contrast with those supporting the case of Respondents No. 1 and 2. The prayer for enquiry is therefore presently rejected.
Sangma, J.
I agree with the conclusion reached by my learned brother that the prayer for enquiry by an appointed agency of this Court should be rejected. I give my own reasons. The Petitioner alleged that in the name of counter operation against the NSCN insurgents the security forces did shootings to death, beating, torturing, looting, raping etc. on the helpless people of Oinam and other villages of Senapati District from 11.1.87. They also alleged burning of houses. In their counter affidavit the security forces denied the allegations and stated that they did the operation within the legal bounds. In support of the denial they relied on the photostate copies of 43 affidavits which art said to have been given to them by the villagers of operation area. In my opinion, these 48 affidavits can not be the ground for refusing the enquiry because, as contended by Smt. Haksar, this affidavits could as well be obtained by the security forces, by force, coercion or otherwise. The Petitioner''s prayer cannot be said to be wholly unjustified because the prayer is for enquiry by independent persons who have respect and confidence for both sides so that relief can be given to the aggrieved people. Therefore, if the villagers of the operation area would actually support the denial, the security forces should have no objection to agree to the enquiry by such persons because that would only vindicate their case. They have not so far denied the allegation of wrongful detention of Deputy Commissioner and Superintendent of Police of the affected district. They have also not denied the raid on the office of Sub-Divisional Magistrate of Paomata. On the other hand, the Memorandum of the Council of Ministers of the State of Manipur confirmed the wrongful detention of the said Deputy Commissioner and the Superintendent of Police. The Respondents are yet to file counter-affidavit in the main writ petition (C.R. No. 1043/87)
The role of the security forces in a disturbed area is to assist the civil administration so as to give confidence to the innocent and law abiding people. Even on their own showing the bases of NSCN insurgent are inside Burma. They only say that the insurgents have sympathisers in Manipur. No doubt, in an combing operation there may be some excesses but those should not be perpetrated deliberately. All these are not meant to say that I have believed the allegations. But regard being had to the seriousness of the allegations I would think that the present is a fit case of enquiry by an impartial body.
However, the security forces themselves stated in paragraph 23 of their affidavit that they would have no objection to the prayer made in paragraphs 10(i) and (j) of the Petitioner''s application, which means that they would allow the aggrieved people of Oinam and neighbouring villages to file FIRs or private complaints in regard to the offence committed against them by the armed forces during the combing operation, and also allow the members of the Petitioner''s organization to visit Oinam and neighbouring villages of Senapati district to collect further details of atrocities committed by armed forces in that area. Though at one stage of the affidavit, the State of Manipur stated that enquiry may be the CBI, at another stage they also stated that the Government have directed the district administration to assess the alleged damages to the property etc. and that the report thereof was being awaited. I believe that by the word "etc" they mean to include the alleged excesses to the lives and limbs of the innocent people. In view of these statements which are made on behalf of Respondent No. 1, 2, and 4, I agree that we would not be justified to order for an enquiry by an agency of this Court. Hence the application in these Misc. Cases are rejected.