The conduct of Justice P.G. Agarwal Commission of Inquiry so far appears to be a threat to media freedom in India. The single-member Commission, appointed on August 27 is the state government’s response to the large-scale and prolonged public protest against the killing of two persons by the Manipur State Police Commando Unit on July 23 in Imphal, Manipur state. From the manner in which the witnesses are allowed to be questioned during the inquiry, it appears that the mandate of the Commission is not to find the truth behind the murder that it is asked to investigate but to allow intimidation of those who were bold enough to speak against it. Agarwal is a retired judge formerly serving at the Assam High Court.
The July 23 murder happened in the state capital in public view. Of the two persons killed in the incident, one was a male, who was led inside a medical store and shot by the officers. The police also fired into the crowd killing a pregnant woman who had come to the town for medical check-up, and seriously injuring five others on the street.
Without the officers’ knowledge a person took pictures of the incident and handed them over to the media. The Tehelka, a weekly newspaper published the pictures and wrote about it. For further information about the incident please see: AHRC-UAC-098-2009.
Immediately after the incident, the Chief Minister of the state justified the killing in the state legislative assembly. He said that the terrorists could be only dealt by force and that the persons killed by the police are members of the militant groups operating in the state. The Director General of Police supported the government’s position by arguing that the incident was a defensive act by the police against armed militants when they threatened to fire at the police. Eyewitness statements and the pictures from the scene of crime suggested that these arguments are false.
The government silenced a state-wide protest against the killing by arresting its leaders. Human rights activist and freelance journalist, Mr. Jiten Yumnam, who was part of the peoples’ protest movement, was one of the persons who were arrested. The police registered a false case against Jiten and seven other persons under the draconian National Security Act, 1980 (NSA). It is reported that the police tortured Jiten in custody by applying electric shock on his genitals, a fact noted by the doctor who examined Jiten while he was in police custody.
A team of human rights activists published a report on November 23 about the incident after visiting Manipur. They also met officers at the Home Ministry in New Delhi on the same day and shared their findings, including their concern about the arbitrary use of draconian laws against innocent persons with an intention to detain them indefinitely. Probably due to their persuasion, the ministry on the next day withdrew the charges under the NSA registered against Jiten.
Application of criminal law and its jurisprudence mandates that a crime could be registered against a suspect only when the investigation in the case reveals a specific offense. As repeatedly held by the Asian Human Rights Commission (AHRC) and many other civil society organisations, draconian laws like the NSA are used selectively by the state to silence opposition.
About the July 23 incident, the people’s demand was to inquire about the killing. What is expected from the Agarwal Commission is also the same. The terms of reference warrants the Commission to enquire the facts and circumstances leading to the incident of firing and death. It does not empower the Commission to recommend prosecution of anyone. But the Commission has a larger mandate to make recommendations to the government to prevent similar incidents in the future.
Like many other government orders and reports of some other Commissions appointed by the government, the terms of reference of the Agarwal Commission, though an important public document, is not available in the public domain. At least the government has not thought that it must be made available to the public. The terms of reference furnished to the AHRC by Mr. Meihoubam Rakesh, Advocate and Director, Human Rights Law Network (Manipur) is available here.
It is a fact that on July 23 the state police shot dead two persons. All that the Commission is required to do is to find out, if possible, what lead to the firing. But so far the conduct of the Commission appears to be reducing itself to become a venue for the government to identify the sources that ‘leak’ information about the atrocities committed by the state agencies to entities outside the state.
Ms. Shoma Chaudhury, the journalist who wrote the Tehelka column was allowed to be cross-examined in the Commission’s proceedings on January 20. Chaudhury was asked to divulge the source of her information, the photographer in particular. Chaudhury refused to answer questions asking her to divulge information concerning the persons who she interviewed before writing the column. Unfortunately, none of the country’s national media have expressed concern or extended support to their colleague while their professional space to work independently is challenged.
A journalist forced to divulge the source of information will be unable to write independently should the freedom to be informed with privilege is challenged. This is one of the basic guarantees for unbiased media.
In India, such a privilege is not covered by the Indian Evidence Act, 1872. In Europe on the contrary, secrecy concerning source of information is a privilege under Article 10 of the European Convention on Human Rights. This is a settled position of law since the decision of the European Court of Human Rights in Goodwin v. United Kingdom.
In India also this question was brought to the attention of the court. The Delhi High Court in a suo motu adjudication against the Pioneer in 1997 decided that a journalist does not have absolute privilege not to reveal the source of information. The 93rd report of the Law Commission of India has recommended an amendment to the Evidence Act to provide immunity to journalists from being forced to reveal their source of information.
In the Pioneer case the court however held that under ordinary circumstances a journalist must be protected from being forced to reveal the source. The legal position thus is information about source can be demanded from a journalist only if it is necessary for the interest of justice, or if the case involves a question of national security.
Indeed, the July 23 incident involves issues that affect national security. But knowing the source of information about a few photographs is not definitely one among them. Agarwal, as the person leading the inquiry has the duty to ensure that the proceedings of the Commission are conducted in a manner that would encourage witnesses to come forward freely and depose the truth that would shed light upon the incident.
In that context, what is relevant are probably questions concerning under what circumstances did the firing occur? It would be also important for the Commission to find what led the police officers to fire upon the public killing a pregnant woman and injuring other members of the public.
To find answers to these questions the Commission should resort to scientifically investigating the incident and talking to the witnesses. But in the context of state and militant sponsored terror in Manipur, witnesses require protection to depose in public. The Commission is neither capable of nor equipped with to provide witness protection.
The people of Manipur have seen several Commissions in the past. The latest in the series is the Justice Jeevan Reddy Committee that was asked to review the use of the Armed Forces (Special Powers) Act, 1958. The government neither made the report public, nor acted on it. In such a context the ordinary citizen of Manipur has no reason to volunteer to depose before the Agarwal Commission.
On the contrary, the government order has already spoken the mind of the government. The opening sentence of the order has already convicted deceased, Mr. Chungkham Sanjit Meetei, a person killed by the police as the member of a prohibited organisation, the People’s Liberation Army (PLA) of Manipur. So far no court in the country has adjudicated that Sanjit died while serving the PLA.
The failure of the government of Manipur and that of the government of India so far to contain the violence committed by the state and anti-state agencies in the state also does not help the people to change their mind. If an inquiry will not lead to prosecution or punishment of the criminals or at the very minimum, the proper publication of its report, why should the ordinary citizen take the trouble to participate in it?
The only person who probably did not have such a thought is Justice Agarwal.