Subject: Complaint against torture and disappearance of Mr Tun Tun Shah on 1 April 2003 at Chhtauni Chowk police station of East Champaran district of Bihar.

Dear Justice Anand,

I am writing to seek urgent intervention of National Human Rights Commission against the torture and disappearance of Mr Tun Tun Sah at Chhtauni Chowk under Matihari Sub-Division of East Champaran district of on 1 April 2003. Mr Sah is a fish vendor by profession.

The policemen on night patrol picked up Mr Sah and brutally assaulted him with lathis while he was offering prayers at the Mahabir temple at Chhatauni Chowk. The police had earlier allegedly demanded fish from Mr Sah, which he refused to comply. His skull was allegedly fractured in the beating and succumbed in the beating.

Police claimed that an inebriated Sah was banging his head before Lord Mahabir's idol when the policemen on patrol found him bleeding.

When the family members approached the police, they were told that Mr Sah was sent to a hospital. However, when family members found no trace of Mr Sah at the hospital and the news of his disappearance reached to the people. The people feared that the police had disposed of Sah's body.

It is incongruous to allege that the Mr Sah could bang his head against the wall. Moreover, his body has not been recovered more than 48 hours later despite the protest from the villagers in the area.

Article 1 of the United Nations Declaration on the Protection of all Persons from Enforced Disappearance of 18 December 1992 states:

"Any act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.

Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life."

International human rights law prohibits the arbitrary deprivation of life under any circumstances. Article 3 of the Universal Declaration of Human Rights states that "everyone has the right to life, liberty and security of person." Article 6 of the International Covenant on Civil and Political Rights ('ICCPR') provides that "[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." Article 4 of the ICCPR states that this right cannot be waived "even in times of public emergency threatening the life of the nation." Moreover, under Article 2(3)(a) and (b) of the ICCPR, State parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective. Extrajudicial killings clearly contravene the right to life.

The Indian Government ratified the ICCPR in 1979. By ratifying an international treaty which enshrines the right to life, India is obliged not only to respect that right in principle, but also to take effective measures to ensure that extrajudicial killings do not occur in practice. Moreover, the right to life is enshrined under Article 21 of the Indian Constitution.

The United Nations Principles on the Effective Prevention and Investigation of

Extra-legal, Arbitrary and Summary Executions provides lucid guidelines on investigation of enforced disappearances. On investigation, the Principles provide:

Investigation

9. There shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances. Governments shall maintain investigative offices and procedures to undertake such inquiries. The purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses. The investigation shall distinguish between natural death, accidental death, suicide and homicide.

10. The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation. They shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify. The same shall apply to any witness. To this end, they shall be entitled to issue summonses to witnesses, including the officials allegedly involved and to demand the production of evidence.

11. In cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles.

12. The body of the deceased person shall not be disposed of until an adequate autopsy is conducted by a physician, who shall, if possible, be an expert in forensic pathology. Those conducting the autopsy shall have the right of access to all investigative data, to the place where the body was discovered, and to the place where the death is thought to have occurred. If the body has been buried and it later appears that an investigation is required, the body shall be promptly and competently exhumed for an autopsy. If skeletal remains are discovered, they should be carefully exhumed and studied according to systematic anthropological techniques.

13. The body of the deceased shall be available to those conducting the autopsy for a sufficient amount of time to enable a thorough investigation to be carried out. The autopsy shall, at a minimum, attempt to establish the identity of the deceased and the cause and manner of death. The time and place of death shall also be determined to the extent possible. Detailed colour photographs of the deceased shall be included in the autopsy report in order to document and support the findings of the investigation. The autopsy report must describe any and all injuries to the deceased including any evidence of torture.

14. In order to ensure objective results, those conducting the autopsy must be able to function impartially and independently of any potentially implicated persons or organizations or entities.

15. Complainants, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation. Those potentially implicated in extra-legal, arbitrary or summary executions shall be removed from any position of control or power, whether direct or indirect over complainants, witnesses and their families, as well as over those conducting investigations.

16. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.

17. A written report shall be made within a reasonable period of time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. The report shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The Government shall, within a reasonable period of time, either reply to the report of the investigation, or indicate the steps to be taken in response to it."

Please find enclosed a copy of the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.

I shall be grateful if the NHRC could kindly make an urgent intervention and take the following measures:

- Direct the State government of Bihar to produce the body of Mr Tun Tun Sah immediately and send it for post mortem which should be conducted in full conformity with the guidelines provided by the National Human Rights Commission;

- Direct the State government of Bihar to suspend the concerned police personnel including Santosh Kumar, Officer-in-Charge of Chhtauni Chowk police station;

- Direct the State government of Bihar to order a judicial inquiry into the torture and disappearance of Mr Tun Tun Sah in conformity with the United nations United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions;

- Direct the State government of Bihar to pay an interim compensation of Rs 500,000 (five lakhs) to the victim's family and the same be recovered from the guilty police personnel; &

- Take any other measures that the NHRC deems fit.

With kind regards,

Yours sincerely

Suhas Chakma
Director