Naga Peoples’ Movement For Human Rights And Others vs Union Of India & Ors

R.S., CJ

[1] The two cases are of the year 1991 filed before the then Gauhati High Court in relation to an infamous incident at Senapati District code named operation "Blue Bird". This is the oldest case pending before this Court after its inception in the year 2013. This case has seen several Benches and has the dubious distinction of clocking 28 years. Hence, the counsel for petitioners was impressed time and again to argue the case for final adjudication.

[2] Heard Mr. M.Ibohal Singh and Mr.M.AjitKevin Singh, learned counsel for the petitioners. Also heard Mr. S.Nepolean, learned Government Advocate for the State respondents and Mr.S.Suresh, learned CGC for the Union respondents finally.

[3] The prayers in CR No. 337 of 1991 are as quoted below.

"A. A writ of certiorari not be issued quashing the notification declaring Senapati District, which forms a part of the Hill Areas of Manipur, as disturbed under section 3 of the Armed forces (Special Powers) Act, 1958.

B This Hon‟ble Court should not formulate guidelines to ensure the presence of Civil authorities at the time of combing operation carried out by the armed forces in purported exercise of powers given under the Armed Forces (Special Powers) Act, 1958 to check possible abuse of military power.

C An appropriate writ, order or directions be not issued declaring section 6 of the Armed Forces (Special Powers) Act, 1958 as unconstitutional and void.

D. An appropriate writ, order or direction be not issued to the Respondents to pay exemplary damages to:-

(a) the families of the men tortured to death;

(b) to the women assaulted, raped or who suffered in any way;

(c) the house owners whose homes were dismantled or burnt down, or those forced to leave their villages;

(d) the men and minor boys who were severely tortured, beaten or illegally detained;

(e) the families whose grain, domestic animals or other goods were looted;

(f) people forced to give their labour;

E. The Registrar (Judicial) of this Hon‟ble Court be not directed to forward the papers or this case accompanied by a writ of mandamus to the Superintendent of Police, Senapati District, Manipur, to be treated as information of cognizable offences and to commence investigation as prescribed under the law as was done by the Hon‟ble Supreme Court in Sebastian Hongray V. Unions of India (A.I.R. 1984 S.C. 1026)."

[4] The prayer in CR No.338 of 1991 is as below:-

" In the premises aforesaid, it is respectfully prayed that Your Lordship may be pleased to Issue a Rule calling upon the Respondents to show cause as to why the Respondents not be prohibited from extracting forced labour from the 381 women mentioned in Annexure 1 to 4 of this petition, requiring these women to attend the Assam Rifles Camps everyday at their behest and/or why such other or further directions not be given to the Respondents to immediately stop subjecting the said women to sexual and other exploitations by the Assam Rifles personnel and/or why the Assam Rifles be not directed to permit free movement of the victimized women to enable them to carry on their own work and/or why such orders for payment of compensation and cost for the above named women be not granted for illegal extraction of forced labour and their daily illegal detention etc. and upon such cause/causes being shown and after hearing parties be pleased to make the Rule absolute and pass appropriate orders in terms of the prayer made hereinabove and be further pleased to lpass any other order/orders as may be deemed fit and proper to secure the ends of justice."

[5] As on today and on record, Shri Ibohal Singh is the new advocate appearing as the counsel for the petitioners and on instruction from Mr. Joyson Mazamo and Mr. Paoterthumna Vanmi who are present in Court and representing the petitioner‟s organization, submitted the case as follows.

The learned counsel, Ibohal Singh on instruction stated that prayer A, B and C are given up because the issue relating to the validity of the Armed Forces (Special Powers) Act, 1958 is presently being adjudicated by the Hon'ble Supreme Court and therefore, the counsel pleaded that the Court may not go into that issue. That leaves us to adjudicate on prayer Nos. D and E.

[6] In respect of prayer No. E is concerned, Mr.Suresh, learned CGC stated that several FIRs have been registered in relation to the occurrence which is the subject matter of the present case and therefore, the question of issuing direction to the Superintendent of Police, Senapati District to register cases and commence investigation does not arise. The investigation based on the FIR will reach its logical conclusion. That leave us to the last and only issue which is the prayer for exemplary compensation to victims on various heads in respect of the alleged incident relatable to operation Blue bird.

[7] The writ petition has been filed by the people of Senapati District, more particularly, the petitioner‟s Association highlighting the allegation of violence committed, the destructions of properties, assault and tortures of men and women and children, rape of innocent women, burning of villagers‟ property etc. by the officers of Assam Rifles abusing their powers under the Armed Forces (Special Powers) Act, 1958.

[8] According to the petitioners, the incident is a fall out of

"Operation Bluebird" by Assam Rifles resulting in large scale destructions of properties, burning down of houses, torture of men and women and children, murder, rape of innocent women, etc. Even the officers of the District were not spared by the Assam Rifles. The fundamental rights of the people of the Senapati District was greatly affected. The present plea is for compensation for the victims.

[9] In the case of CR No.338 of 1991, issue of forced labour, restriction of free movement, illegal detention does not arise at this point of time. The period of turbulence has now passed. However, the women as they claim, allege torture, manhandling, depriving them of livelihood, extraction of labour by force without payment are live issue for which they are entitled to seek compensation after a proper enquiry is made based on the identity of the person concerned and the nature of grievance. They also plead for compensation.

[10] The details of allegations submitted by the petitioner , which will be relevant for adjudication of this case, are extracted as under:-

"3. That the facts giving the background of this petition are stated in brief below:

(a) That Senapati District is a part of the Hill Areas in the State of Manipur and has been declared in the State of Manipur and has been declared disturbed under the Armed Forces Special Power Act, 1958, since on or about 1972.

(b) That the Governor (Respondent No. 3) has special responsibilities in these areas under Article 371 C read with Article 19 (5) and the Sixth Schedule of the Constitution.

(c) That under the pretext of counter insurgency moves the armed forces along with the para military forces have in fact taken over civil administration and undermind the authority of the Deputy commissioner and Superintendent of Police.

(d) That whenever the armed forces move into an area it inevitably results in wide-spread illegal arrests, searches, tortures, and rapes. This is illustrated by the facts of the recent combing operation that took place in Senapati District of Manipur.

That the facts leading up to this petition are stated hereinunder:

(a) That on July 9, 1987, at around eleven in the morning some unidentified people, believed to be members of the National Socialist Council of Nagaland attacked the Assam Rifles post at Oinam and made off with arms and ammunition. In the process, nine jawans were reported to have been killed and three others were seriously injured.

(b) That on the same day the Assam Rifles sealed off the area and on July 11, 1987 the armed forces launched "Operation Bluebird" for recovering the arms under the personal supervision of General Officer-in-Command (M Sector), Major-General P.L. Kukrety.

(c) That in the name of counter insurgency the armed forces unleashed a reign of terror on the villagers of Senapati District. The people from Oinam village and neighbouring villages were made to stand together at the helipad at Oinam village throughout the day and night. Some men and minor boys were separated and taken away to the Assam Rifles camp at Oinam,, others were forces to do manual work for the armed armed forces and still others were severely beaten, given electric shocks and buried neck keep in earth. Many men have died due to torture, others out of shook due to the brutalities committed on the village people. Babies have died due to lack of medical attention and sufficient food.

The armed forces have not allowed anyone to enter the area so it is difficult for the petitioner organization to furnish this Ho‟ble Court with all the facts. However, the petitioners are giving hereinunder some of the facts of violation of fundamental rights of the people of Oinam and neighbouring villages to illustrate the extent of criminal outrage that have been committed by the armed forces. Such excesses of the armed forces can never be justified on grounds of counter-insurgency.

That 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 following is the incomplete list of the people belonging to Oinam and surrounding villages who have lost their life in the operations carried out by the armed forces.

*** ***

*** **

That be it mentioned that women are specially vulnerable targets of army brutality. The searches are carried out by male personnel and no women police accompany such search parties. Given below are some of the specific instances of atrocities committed on women by the armed forces during operation Bluebird :-

(a) At least two women, Miss Solomi (19 years) and Miss Somila (17 years), both of Phuba village near Oinam village were raped by members of the armed forces.

(b) Two pregnant women of Oinam village, Mrs. Khola and Mrs. Lomala were detained at the helipad in the village along with their villagers and were compelled to give birth to their babies in full view of the armed forces personnel. Mrs. Lomala‟s baby did not survive due to the abnormal situation under which she had to give birth.

(c) Miss. V. Kholao (18 years) a Class VIII student of chilivei Christian English School, Lakhamei was taken away from school by the armed forces and her whereabouts are still not known.

That more than 300 men, young and old, have been severely beaten, given electric shocks, their limbs broken down and beaten while some were buried alive in neck-keep mud. Many of these people are still suffering and are urgently in need of medical attention. An incomplete list of men who have been tortured is annexed hereto and marked as Annexure-A to this petition.

H.Fiidai (40) - s/o Haochonva

Ng.Benjamin (22) - s/o Ngaivii

O.Krisol (23) - s/o Hao

D.Bengjamin (22) -s/o- Taufii

S.Kinamo (24) -s/o Sharamvii

Kh.Thava (25) -s/o Khavii

K.Jorah (24) -s/o Khova

T.Chipao (30) -s/o Thafii

D.Karmi (30) -s/o Toufii

M.Sword (42) -S/O Shimshak

S.Jacote (28) -s/o Shikap

12.S.Warson (28) -s/o Shikap

W.Modai (35) -s/o Wushong

S.Fiidai (30) -s/o Shimshak

S.Rishao (15) -S/O Surai

Kh.Khosi (18) -s/o Kharamo

Somi (16) -s/o Tuimak.

That it may be mentioned that the aforesaid people are highly critical conditions and unless urgent medical attention is given to them, they are likely to lose their life.

That the armed forces have gone around systematically dismantling and burning houses of villagers. The petitioners organization has got details of 125 houses which have been either dismantled or burnt. The list of the affected houses owners is annexed hereto and marked as Annexure - B.

Further, the armed forces are threatening villagers and making them leave villages. For instance the villagers of Khongdei Khuman were coerced into signing a petition to the army "requesting" that they be allowed to shifts to Khongdei Shimplung settlement.

**** ****

That the armed forces have indulged in large scale looting of houses in Oinam and other neighboring villages of Senapati District. They have taken away domestic animals, paddy, house-hold goods and even wood stored to build a Church. As a result of this looting, many villagers are literally starving.

*** **** ***

That the actions of the armed forces in Oinam and neighbouring villages has resulted in the gross violation of the fundamental rights guaranteed under Articles 14, 19(1), 21, 22, 23 and 25 of the Constitution, of the people of Senapati District."

[11] In these circumstances, it was prayed for the reliefs as mentioned above were sought for and the case was admitted on 28.10.1987 with the following direction:-

"Heard the learned counsel for the petitioner, Smt. Nandita Haksar. Heard also the learned Advocate-General, Manipur as well as Mr. S.N.Chetia, the learned Additional Senior Central Govt. Standing Counsel.

Let the records be sent for.

Let a Rule issue calling upon the respondents to show cause as to why a Writ should not be issued as prayed for and/or as to why such further or other orders should not be passed as to this Court may deem fit and proper.

The Rule is made returnable within two months.

Mr. Chetia accepts notice on behalf of the respondents 1 and 2 and Mr. N.N.Saikia, Govt. Advocate, Manipur accepts notice for the State of Manipur."

Thereafter, a detailed order was passed on 6.7.1998 which is extracted is below:-

" This Civil Rule was filed on October 5, 1987. In this case, two interlocutory orders were passed, one on October 28, 1987 and the other on December 15, 1987. For the purpose of the instant order, in the latter order, it is held (one of us Sangma J, sitting with Hon‟ble Hansaria J.) no direction for enquiry was called for at that stage of the case therefore - "The prayer for enquiry is therefore presently rejected." Mr.Chand Mahammad, the learned counsel appearing for the Union of India argued having regard to that order no enquiry can be held now because of the order of December 15, 1987. We see in this case pleadings are completed as counter affidavits and rejoinder are now filed. We hold the record warrants an inquiry be held therefore we cannot sustain the objection offered on behalf of the Union of India.

We see in the instant case (a) 27 persons as alleged to have been killed in the encounter known for short operation Blue bird on different dates in Senapati District of Manipur State. The names of the 27 persons are set out in the Civil Rule petititon at pages 7 and 9. (b) Three women were allegedly raped and five women were allegedly sexually molested. (c) 300 persons are alleged tortured by Assam Rifles and names of tortured are found at Annexure-„A‟ appended to the petition (page 25 of the Civil Rule petition and in the re-joinder at pages 346-356). (d) 15 persons shown were detained specified at page 4 in the affidavit-in-opposition in Misc. case no.1127/87.

The persons who were victims of third degree methods like electric shocks are set out at pages 10 and 11. The persons illegally detained and tortured are set out at pages 13 and 14 of the Civil Rule petition. (e) 125 resident houses are alleged burnt, 112 like houses were dismantled vide Annexure „B‟. (f) 6 schools and 10 Churches were dismantled. Particulars are shown at pages 359 to 362 of the re-jonder. (g) 7 villages are enumerated where property worth Rs. 50,79,000/- were looted. The names of the villages are - (1) Oinam, (2) Ngamju Shah, (3) Ngamju Ponvan, (4) Khongdei Shimphung, (5) Khongdei Khuman, (6) Kodum Khullen and (7) Sorbung Village. (h) Villagers belonging to five were forced to work in five villages - (1) Oinam, (2) Thingba Khullam, (3) New Maram, (4) Mam Khullen and (5) Phaibum Khullen. On this account headmen of five villagers , it is represented will be examined.

We direct the learned Sessions Judge, Manipur, Imphal to record the evidence of witnesses at Imphal offered by the petitioner s. If witnesses summons is prayed, summons be issued. All those examined will be tendered for examination by the Union of India, the Defence Department or the Govt. of India and also by State of Manipur.

We direct the learned Sessions Judge, Manipur, Imphal to record the evidence expeditiously. The counsel who have to cross-examine the witnesses be informed the names of witnesses three days in advance before witnesses are examined.

Ms.N.Haskar, the learned counsel for the petitioner expressed it may not be possible for her to visit the villages without assistance of the State of Manipur. If assistance is sought for, State of Manipur will provide assistance.

To obviate any controversy, we may add petitioners can examine witnesses even if no affidavits are filed by this date in this Court in proof of allegations in (a) to (h) as particularised above.

The entire records of the case is ordered to be transmitted to the Court of Sessions Judge, Manipur, Imphal for compliance."

[12] Pursuant to subsequent orders passed by the court, the case was sent to learned District Judge, Manipur, Imphal for enquiry and the case was adjourned from time to time. It is also to be mentioned that the present case was transmitted to Imphal Bench by order dated 9.7.1991 as below:-

" This case is transferred to Imphal Bench as prayed for by the learned counsel Ms. N. Hakser, on behalf of the petitioner , along with Civil Rule No. 1355/87 and Civil Original Petition (Cont.) NO.22/89.

Office to transmit the records to Imphal Bench through Special Messenger within a week."

The case was heard on different dates by the circuit bench and the details of adjournments sought for reveals lack of interest by either side to conclude the proceedings.

[13] Despite several orders of this Court in the recent times, it appears that the entire records could not be identified or located. There is no final or interim report from the District Judge, Imphal. Registrar (Judicial), inform the Court that inspite of several enquiries, he is unable to identify any relevant file except pleadings. Smt. R.K.Memcha, the then Registrar (Judl.) submitted a letter dated 21.02.2019 enclosing certain documents. To our dismay, we found that some of the records referred to in the above said letter are totally unconnected to the present case. The letter dated 21.02.2019 also does not in any way help us in the adjudication of the present case. Faced with such a predicament, this Court has no other choice but to find a solution to the victim if their grievance is justified.

[14] Shri Ibohal, on the previous occasion stated that they have a detail list of victims with supporting affidavit and documents to plead for compensation. For the present, he has produced an indexed set dated 13th June, 2019 containing a list of victims above according to their information. It is a not complete document. This plea is subject to verification and enquiry. He pleaded that he has the affidavit to support all the allegations. However, this was not a part of the record of this Court at any point of time earlier. In view of the nature of allegations made against the Assam Rifles and the grievances expressed by the people of the Senapati District in relation to the incident, namely, Operation Blue bird and also taking note of the new development that has taken place, namely, the affidavit prepared by the victims, the issue that needs consideration is that the claim has to be considered by the competent authority as to who are the victims of Operation Blue bird and if found true thereafter, the question of compensation will arise for determination. The issue raised by the present counsel for the petitioner enlarges the scope of enquiry based on details like affidavit and documents that are to be filed. These affidavits/documents have not been filed before this Court. The learned counsel, Ibohal Singh stated that if a Committee of Officers of the District Senapati is constituted, then the details will be submitted to the Committee for proper enquiry.

[15] Shri S. Nepolean, learned Government Advocate for the State Government has no objection in so far as constitution of a Committee consisting of officers of the Government to look into the allegation and complaint of the alleged victims in terms of the revised list submitted by Mr. Ibohal on 13.6.2019. The issue of compensation will be decided by the government based on the report of the Committee.

[16] Mr. Suresh, learned CGC appearing for the Union denies the allegations, however states that in the event of Court directing a Committee to look into the matter, the Assam Rifles authorities should be given an opportunity to place their version on facts.

[17] Taking note of the subsequent development namely the list of number of victims who have come forward at present to claim compensation as victims of the operation Blue bird, it will be difficult for this Court at this juncture to adjudicate the case because the number of people who have to be examined including witnesses will be substantially large and the detail will have to be collected. Such an exercise can be done only by a team of officials. The veracity of the statement can be corroborated based on oral testimony and documents that will be filed. Further, the respondents need to respond to the allegations by letting in evidence.

[18] Taking note of the present development, that is the statement of Shri M.Ibohal Singh and Shri M. AjitKevin Singh dated 13.6.2019, giving a new list of alleged victims, the allegations in relation to the incident of operation Blue bird and the damages alleged to have been caused will have to be assessed by a Committee constituted by the State Government. The officers of the district along with officers of the State alone can go into details of the grievances of the alleged victims and also assess the damages alleged to have been caused by the personnel of Assam Rifles at that point of time. This can be done without reference to the investigation pursuant to the FIR as the petitioners are seeking compensation as victims on various heads. The multi faceted claims on different heads has to be segregated and analysed. It may not be possible for a judicial officer to determine the quantum of compensation because firstly there is an acute shortage of judicial officers. Secondly, the varied claims include, personal injury, wages for forced labour, damage to property, chattel, poultry, dairy, etc. These aspects have to be assessed by competent officers of the Government. Thirdly, more than 300 claims have to be enquired and the merits considered after examination and cross-examination. This needs to be undertaken by a special forum of competent officers who are people friendly. They will also have to follow principle of natural justice.

[19] In order to end the agony of the victims and for early conclusion of the lis and as agreed by Shri Ibohal Singh, Advocate for the petitioners and all the counsels for respondent, we are inclined to issue the following order. We, therefore, direct the Home Secretary, Govt. of Manipur to constitute a Committee which will include the Superintendent of Police, Senapati District, the Deputy Commissioner, Senapati District and any other competent officer to hold an enquiry into the incident of Operation Blue bird. To receive all the complaints along with affidavit and hold an enquiry on the merits of the allegations made out by the petitioner. The committee will submit an impartial report to the Government and on that basis Government will have to decide the issue of appropriate relief or payment of compensation and for such other remedial measures as may be suggested by the Committee.

[20] We direct the Home Secretary, Govt. of Manipur to constitute the Committee within a period of three months from the date of receipt of a copy of this order and provide the Committee all assistances to take up the work of enquiry into the matter giving the petitioners in the writ petitions as well as other individuals connected to the case to place all their materials before the Committee so as to enable it to give a proper report on the various issue raised by the petitioners. M/s Assam Rifle will be given an opportunity to participate in the proceedings and submit their version to the Committee.

[21] With the above direction, the writ petition stands disposed of.