Dear and Respected Madam,
i) To inquire into the causes and circumstances leading to the opening of fire resulting in death and injuries to many people on 11.09.2011 at Paramakudi in Ramanathapuram District and the subsequent law and order disturbances including large scale damages to public and private properties ;The 11th of September, 2011 marked a scene of violations that is continuously being probed by political parties, Dalit organizations, human rights organizations, writers, academics and several others from Tamil Nadu and from throughout the country. The Hon’ble Chief Minister on the floor of the Legislative Assembly immediately after the incident announced the appointment of a Commission of Enquiry as per the Commission of Enquiry Act 1952 to be headed by Justice K. Sampath, a retired Judge of the Madras High Court. The terms of reference of the Commission of Enquiry in G.O. Ms. No. 845 dated 13th September, 2011 read as follows:
(ii) To ascertain whether appropriate force was used as warranted by the circumstances and whether all prescribed formalities were observed before opening fire;
(iii) To ascertain whether there was any excess on the part of Police officials and if so, to suggest the action to be taken;
(iv) To recommend suitable measures to prevent the recurrence of such incidents in future;
The Commission is to submit its report within a period of two months from the date of publication of this notification, i.e. on or before 13th November, 2011. A week has passed and there has been no information whatsoever in the public domain as regards the functioning of the Commission of Enquiry.
In the light of the above, I wish to draw your kind attention to certain facts which are not contested by the State in this issue.
· The first is that on 11th September, 2011 there were 3 different incidents took place at three different places. In chronological order was the first police firing that took place not in Ramanathapuram, but in Madurai district in a place called Chinthamani wherein nobody was killed, but two persons were very seriously injured.
· Then came the Paramakudi police firing; and after that another police firing that took placed in Ilayankudi that falls within the jurisdiction of Sivagangai district.
Thus, what is referred to as the ‘Paramakudi incident’ by all political parties, Dalit organisations, writers, academicians and human rights organisations in all their reports are not actually what took place at Paramakudi alone, but the incidents that took place on the same day in relation to and connected with the Paramakudi incident, thereby including the Chinthamani incident in Madurai district and in Ilayankudi of Sivagangai district - both police firings on the same day.
· It is also to be pointed out that there were certain incidents that took place in connection with the said “Paramakudi incident” which started off as early as on 7th September, 2011 with flex banners reading “Desiya Thalaivar, Deiva Thirumaganar Immanuel Sekaran’ – which translates in English as, ‘National Leader, Divine Descendent, Immanuel Sekaran’ being exhibited within the limits of the Paramakudi police station and the same resulting in a formal complaint at Paramakudi police station followed by peace talks initiated by DSP Ganesan and Inspector Sivakumar.
· The Hon’ble Chief Minister herself has on the floor of Assembly also alleged the depicting of certain wall writings derogatorily referring to a leader of another community in Muthuramalingapuram village as if the incident that lead to violence. On the 9th of September, 2011 Mr. Palanikumar – a student, studying 12th standard from Dalit community of Pacheri village in Ramanathrpuram district was brutally murdered while on his way home in the night with a friend and a well adjacent to Pachari village is alleged have also been poisoned.
· Finally the arrest of Mr. John Pandian at Thoothukudi was the incident that led to a road roko by a group of persons - whose exact number is in dispute - but the facts remain - that triggered of the incident, now popularly referred to as the ‘Paramakudi firing’.
When such are the background events from the 7th to the 11th September, 2011, all of them - namely the Chinthamani firing, Paramakudi firing and the Ilayankudi firing - it is completely unfortunate that the Public (Law and Order–F) Department of Government of Tamil Nadu in G.O. Ms. No. 845 dated 13th September, 2011 has restricted its terms of reference for the Commission of Enquiry by Hon’ble Justice K. Sampath to only the police firing incident at Paramakudi of Ramanathapuram District. From the terms of reference mentioned above, it is clear that the Ilayankudi firing and the Chinthamani firing could not be covered and we are now informed that the District Administrations of Sivagangai and Madurai have or are in the process of ordering separate enquiries by their respective RDOs into the police firings that have taken place in their jurisdiction.
It is time therefore for us as a human rights organisation to bring to the kind attention of the Hon’ble Chief Minister of Tamil Nadu that after the passing of the Protection of Human Rights Act, 1993 that has led to the constitution of the National Human Rights Commission of India and a State Human Rights Commission in Tamil Nadu only to attend to matters relating to human rights exclusively. The role therefore, of such Commissions of Enquiry becomes extremely limited. The Protection of Human Rights Act, 1993 [PHRA] in Chapter III titled functions and powers of the Commission reads as follows :
Section 12: Functions of the Commission:
The Commission shall perform on any of the following function, namely,
(a) enquire suo motu or all petitions presented to it by a victim or any person on his behalf that are on the direction or order of any Court, into a complaint of
(i) violation of human rights or abatement there of; or
(ii) Negligence in provision of such violation by a public servant.
The avenue is open to the statutorily established National Human Rights Commission and State Human Rights Commission to enquire into human rights violations U/S 12(a)(i) & (ii) PHRA. When the Government, Central or State, requires the conduct of an urgent enquiry by a retired High Court Judge using the Commission of Enquiry Act and the purpose is only to find out the truth, the best way to do it when what is to be investigated in a matter falling within the definition of ‘human rights’ is not to take recourse to the Commission of Enquiry Act 1952 but to the PHRA 1993. Not taking recourse to the PHRA 1993 is to thwart the independent function of an institution like the NHRC created solely for the purpose of protecting human rights in this country. The NHRC and the SHRCs established in 20 States so far, are governed by International standards for NHRIs known as ‘Paris Principles’ which insist on their independence, on their jurisdiction and adequate powers, on their accessibility, on cooperation, on their efficiency and their transparency. The NHRC and SHRCs are further also bound by recent International Human Right standards and developments in the human rights arena. The reports that these Commissions generate U/S 20 and 28 of the Act mandate the NHRC and the SHRC to submit special reports at any time. The said section also mandates both the Central and State Governments, as the case may be, to cause such special reports to be laid before each house of Parliament or State Legislature with a memorandum of action taken.
In addition, the NHRC and the SHRC have independent investigation teams headed by an officer of the rank of the DGP of the State who heads the investigation at the NHRC as its Director General of Investigation and at the SHRC an officer of the rank of an ADGP who heads the investigation wing.
Therefore, a Government which requires an independent, urgent, efficient and transparent enquiry into the allegation of human rights violation - just what the Paramakudi incident is – calls for taking recourse to an enquiry by the NHRC comprising 5 members, 3 of whom are former Judges (Headed by a former Chief Justice of India, and comprising a former Judge of the Supreme Court of India and a former Chief Justice of a High Court as its Chair and Members) and two other Members with knowledge and experience in human rights. Thus an enquiry U/S 12(a) of the Protection of Human Rights Act conducted by the NHRC would be of far greater significance than an investigation conducted by a single Judge headed Commission of Enquiry under the Commission of Enquiry Act 1952.
In the present circumstances in Tamil Nadu, since the State Government is yet to appoint the Chairperson of the SHRC, taking recourse to the NHRC would be a better avenue for speedier remedy in seeking justice and for truth to prevail. Just as the Commission of Enquiry is only a recommendatory body, whose reports have to be placed on the floor of the Assembly, the special report of the NHRC also contains only recommendations and not ‘court directions’ to be placed on the floor of the Assembly. However, if the recommendations of the NHRC are not followed, the NHRC may U/S 18(b) “approach the Supreme Court or High Court concerned for such directions, orders or Writs or that Court deems necessary”. Thus the recommendations of the Commission of Enquiry cannot be put to implementation by the Commission. But on the contrary a recommendation by the NHRC can be implemented if they are fair by taking recourse to the Sec 18(b) of the PHRA. This is the advantage that the Hon’ble Chief Minister will have over the Commission of Enquiry Act by referring the Paramakudi incidents to the NHRC for enquiry and redressal.
It is therefore that People’s Watch working as the conscience of the larger human rights community in the State appeals to the Hon’ble Chief Minister hoping sincerely that the Hon’ble Chief Minister is only interested in seeking the truth and not in any way attempting to cover up any lapses that might have taken place by the instrumentalities of the State - in this case its police officials and makes the following recommendation. It fervently appeals to the Hon’ble Chief Minister, in the light of the deficiencies already pointed out as regards the scope of the enquiry and particularly in the context of evaluating the merits of an enquiry by the NHRC and the merits of an enquiry by a Commission of Enquiry, to kindly review the decision to appoint a Commission of enquiry. The Hon’ble Chief Minister, in the absence of a Chairperson in the Tamilnadu SHRC and the national importance of the human rights violation in question in Paramakudi, should be able to hand over this issue to the NHRC to step in and conduct an enquiry.
Since this has to be a time bound enquiry and the Hon’ble Chief Minister, may also express her wish that the same be conducted by the NHRC by a full Commission of the NHRC. The Hon’ble Chief Minister may also assure the NHRC that it is willing to pay the costs that the NHRC may incur in matters of travel, stay, conduct the enquiry, etc., which would have in any way spent for the Justice K.Sampath Commission of Enquiry.
People’s Watch hopes that the Hon’ble Chief Minister will appreciate the suggestion and immediately undertake measures to go ahead with the enquiry. Although the NHRC has suo motu powers to initiate enquiries and since the Hon’ble Chief Minister has, as early as on 13th September, 2011, constituted this Commission of Enquiry, the NHRC is bound by Sec. 36(1) of the PHRA by which it shall not enquire into any matter which is pending before any other Commission duly constituted under any law. Thus, while the Justice K.Sampath Commission of Enquiry is in force, the NHRC is bound not to enquire into this matter and in order to allow the NHRC jurisdiction it is the State Government that will have to take these efforts to approach the NHRC in this regard.
Executive Director, People’s Watch