Justice at last for Tayab Ali

Yambem Laba *

Supreme Court of India at Delhi

The recent Supreme Court verdict directing that the Indian Army can no longer hide behind the shield of the Armed Forces (Special Powers) Act, 1958, and protect officers and men involved in human rights violations – read fake encounters — by quoting provisions of the Act that provide for immunity from prosecution unless the sanction of the Central government is obtained, has brought a fresh ray of hope to the family of Md Tayab Ali of Manipur, who was killed in just such an encounter by the Assam Rifles in 1999.

A division bench of the court comprising Justices BS Chauhan and Swatanter Kumar had made this ruling while deliberating over a case filed by the Army to put on hold the findings of the CBI probe into the killing of seven Kashmiris in Chattisingpora in Jammu and Kashmir in 2000 and another five in Assam in 1994. The Union defence ministry had been refusing to give prosecution sanction till date.

The ruling made it clear that the Army should decide if its officers and personnel found guilty by the CBI probe could be prosecuted by a court martial or criminal courts. In case they are to be tried by court martial, then no Central sanction is required and if they are to be tried by a criminal court then the CBI should seek sanction from the Centre, which, in turn, is directed to take a final decision within three months from the date of receipt of such an application.

Mina Khatun was about 30 years old and carrying her sixth child when her husband, Tayab Ali, the bread-winner of the family, left their house stating that he had to meet his employer in Imphal market. That was on 27 July 1999. On the way from his home in Muslim-dominated Kairang Mayai Leikai in Imphal, he was picked up by a posse of Army/Assam Rifles personnel at Sangakpham Bazar.

They were in mufti and travelling in two unmarked white vans and he was bundled into the first while the moped he was on was shoved into the second. Five fellow villagers who witnessed the incident and were in a taxi decided to follow the vans and saw them entering the headquarters of the 17th Assam Rifles, then located at Kangla in Imphal, through the northern gate and reported the matter to Mina Khatun on their way back.

The same day, Md Baniyamin, Ali's younger brother, visited the Assam Rifles headquarters accompanied by a Muslim police constable, Md. Giyasuddin, where he was told by a Muslim employee of the force that Ali had been picked up and that he would be handed over to the police the next day. But when this didn't happen, Ali's father lodged a missing person's complaint with Heignang Police Station and placed advertisements in the local Press in this regard.

When nothing came of this, Mina Khatun approached the Manipur State Human Rights Commission, of which I was then a member and I clearly remember her standing outside the door, unsure of her footing. We called her in and she narrated her tale to us. Knowing fully well that she could not afford to hire a lawyer to draft a petition, I typed one out for her. We then directed Inspector-General of Police (Law and Order) Ahanthem Romen Kumar Singh, IPS, to inquire into the matter.

He did a thorough job, for apart from recording the statements of the five witnesses testifying to the fact that they saw Tayab Ali being taken inside the 17th Assam Rifles headquarters, the police had sent crash messages to all police stations asking them to report back if Ali had been handed over to any of them. He also wrote to the Army authorities inquiring whether Ali was in their custody or not.

On 22 August 1999, the Staff Officer of the Commander MP Range informed the police that the 17th Assam Rifles had not picked up or arrested Ali. The State Commission then packed the petition along with the reply from the police and forwarded it to the National Human Rights Commission, which then issued notices to the Union ministries of defence and home affairs regarding the matter.

The defence ministry in its report dated 11 April 2000 informed the NHRC that on 25 April 1999 Ali had been shot dead by a column of the 17th Assam Rifles when the moped he'd been riding tried to flee past a mobile checkpost set up at Motbung on National Highway 39. The incident is said to have followed an exchange of fire then. The body was identified to be that of Ali and handed over to the Kangpokpi police station the same day. The defence ministry also contended that since Ali had been killed in retaliatory firing by personnel of the armed forces, no cognizance could be taken of the complaint submitted by Mina Khatun.

This was a totally different and inconsistent stand taken by the defence authorities from the earlier report of the DGP, Manipur, which had denied that any person by the name of Tayab Ali had been picked up by the 17th Assam Rifles or any other Assam Rifles unit, the NHRC noted.

After being deposited with Kangpokpi police station, the body was disposed off as unidentified. The NHRC then directed the Manipur police to show the photographs of the deceased person to Ali's relatives to ascertain whether the said body was his or not. But when photographs were shown to his father, wife and elder brother, they all denied it was Ali. Thus the NHRC contended that the person killed in an encounter on 25 July 1999 was not Tayab Ali and it dismissed the Army's contention that Ali had been killed in an encounter and held the 17th Assam Rifles responsible for failing to account for Ali, in whose custody he was last seen.

A full bench of the NHRC, then headed by Justice JS Verma, for the first time interpreted Article 19 of the Protection of Human Rights Act 1993 to its logical end and held that the onus of proving Ali was not in their custody lay with the Army — in this case the 17th Assam Rifles in whose custody he was last seen — and held it responsible for his disappearance. Thereafter, the NHRC recommended that a sum of Rs 3 lakh be paid to Mina Khatun and directed the Union ministries of defence and home affairs to comply. This ruling was made on 31 May 2002, almost three years after Ali's disappearance.

Mina Khatun did not sit idle. She soon joined ranks with other women of Manipur who had lost relatives to the security forces and became part of the Families of the Involuntary Disappeared Association, Manipur. Then Meihoubam Rakesh, director of the Human Rights Law Network, approached Gauhati High Court seeking a directive for a CBI probe into Tayab Ali's disappearance — which was given. The CBI then registered an FIR (No. RC-06 (S)/2005 dated 16 September 2005) and began the probe.

On 1 May 2009, it submitted a chargesheet and held then Captain PS Banafar (now Lt-Colonel) then Captain Ashish (now Lt-Colonel, havildars Ashok Kumar Singha and Babulal Pradhan and rifleman Laxman Singh of the 17th Assam Rifles and then officer-in-charge of Kangpokpi police station and now Assistant Commandant with the 2nd India Reserve Battalion Md Abdul Latif guilty of murder in a fake encounter and concealment and destruction of evidence.

The probe found that Ali was shot from a range of three-five feet and that Captain Banafar had not recorded his movements in and out of the battalion headquarters and that the encounter had taken place in an area beyond the operational jurisdiction of the 17th Assam Rifles. Subsequent to the filing of this chargesheet, the Judicial Magistrate, Imphal, issued a non-bailable arrest warrant against Md Abdul Latif and the government is said to have sanctioned his prosecution. But the prosecution sanction for the other co-accused has not been given by the Centre till date. But hope has been renewed with the recent Supreme Court verdict of 1 May 2012.

Speaking to The Statesman, Meihoubam Rakesh, the lawyer responsible for the CBI probe, the judicial magistrate could straight away write to the defence authorities giving them the option as laid down by the Supreme Court verdict. "If he does not act soon, we will be compelled to move court or lodge a formal complaint," he added.

Mina Khatun had not heard about the Supreme Court verdict and, huddling with her six children, she told The Statesman that she would perform her husband's last rites once the guilty had been punished.

Ali's 82-year-old father, Md Taher Ali, said that "I cannot and will not punish my son's killers, only Allah will punish them". He hoped his son's soul would now rest in peace. Observers added that this would be the first time Army officers and personnel would be punished for crimes committed in Manipur under the Armed Forces (Special Powers) Act. It bears attention that Tayab Ali was the last person to have disappeared after being taken into custody by the Army in Manipur.

Courtesy: The Statesman