Recommendations of Justice V.P Mohankumar , Former Acting Chairperson,Justice A. LekshmiKutty and Prof.S Varghese ,Former Member's of the Commission

1. This case relates to mainly problems of road safety. Primarily, the question raised by the parties in this case relates to the road running between Aluva and Perumbavoor. It can be treated as a model case for the reason of large scale road accidents occurring on National Highway.

2. Right to live includes not merely a mundane existence as human being. It should be a right to lead the life with full human dignity. In order to live peacefully and comfortably with dignity, one has to ensure that his faculties live him throughout his life. A road accident can be a cause for its premature extinction.

3. To enjoy the right to human dignity, the State should take steps to protect from hazards to health in the environment in food and in the road safety as well. It is a common knowledge that there are large scale accidents occurring in cities due to rash and negligent driving of the vehicle. Improper alignment of roads is also a contributory factor. Whatever be the cause, the victim persons commuting are pedestrians and their innocent families. Suffering is transmitted more to the families than to the victims. Such accidents may result in the death of the bread winner. A family is rendered destitute and payments of compensation is little substitute. Such accidents create, a growing category of vagrancy largely indisciplined and revolting. This is the grossest form destruction of constitutionally guaranteed right to live with dignity. I am of the view that the issues raised requires a serious consideration and approach by the authorities concerned.

Some of the broad reason that can be assigned to these accidents which are mostly fatal are the following factors. We would consider the issues in the following headings.

The vehicles now we find on the road is manufactured progressively with an intention to make it fuel efficient. This is a welcome trend as it is intended to save precious oil. And this is sought to be achieved by redesigning the engine by what is called ‘Emission Control System’. Prima facie, implementation of this results in the vehicles complying of to Euro II/Euro III norms to provide cleaner emissions from the vehicles. This is achieved by fixing of turbo changers with intercoolers in the exhaust system of engine. It is scientifically recorded that such engine achieves increase of output by 20 to 30% which helps to accelerate the vehicle quicker and results in the increase the speed by 20%. Such vehicles are fitted with Anti Lock Braking System which enables that vehicle to stop abruptly. Unfortunately, correspondingly the braking system to enable to stop the vehicle abruptly has not been used in all other vehicles. If so, when the vehicle which is fitted with emission control system stops suddenly, the vehicle that is not fitted with system, which follows the other vehicle, would ran into the vehicle ahead. It is noticed that this feature is absent in vehicle which is of less than 1500 CC capacity resulting in serious accidents when a vehicle ahead of a 1500 CC abruptly stops. A uniform device has to be installed compulsorily in all vehicles.

B. Defects of the roads and its maintenance

Secondly, there is another vital aspect to be taken note off. In automobile industry, one car is deemed to be one PCU i.e; (Passenger Carrying Unit) and a lorry or a bus is 5 PCU. It is notified by the Government that if the traffic exceeds 25,000 PCU, then the road should be converted into a four lane track as notified. One lane track should have a width of 3.5 metres. That means, the total width of the vehicle carrying lanes should be 14 metres. Besides this, in Indian situations, it has to be provided with a lane for pedestrians (known s Walk-way) and a lane called carrige way (for commuting of three and two wheel vehicles). This would occupy not less than 3.5 metres width. A survey of the roads would indicate that it should have at least 4 lane. In result, one side of the road should have a width of around 17.5 metres. So unless there be 17.5 metres width of road, there cannot be a road which 25,000 PCU. That apart, when a vehicle takes a turn, it will take a wider angle resulting in having at least 4.5 metres area for it travels. In other words, correspondingly in a turning, a road should have not less than 9 metres width. The roads should have constructed keeping in these parameters in mind. It is unfortunate that none of the roads having constructed in this manner.

C. Defects in the matter of maintenance of roads

The road terrain between Aluva and Perumbavoor is very smooth because of use of bituminised Macadam with asphalt concrete. Such roads are very smooth and would have low rolling resistance. This increases acceleration and speed of vehicle. It will be ideal from the point of view of use of gasoline and from the point of view of comfort and high mileage, low maintenance and durability. But in exchange it becomes highly and dangerously accident prone. When considering the advantages gained by the commuter the accident that it creates would out weigh the advantages gained. When driving along such roads and it becomes necessary to brake the vehicle, the vehicle has a tendency to swerve. This would result in serious and fatal accidents. This defect be given more importance rather than mechanical advantage or monitory gain that the owner of the vehicle may gain. This is more pronounced at road corners, when the vehicles have to take a turn. As indicated earlier since the roads do not have enough width at the turnings it results in fatal and serious accidents. To avoid such fatality at least turning point should be roughened 50 metres ahead of the turning and 50 metres after the turning. This would to an extent lessen the accident possibility.

There are serious defects in Motor Vehicle Acts and Rules as can be seen. The Statute provides that a person who commits an offence is punished by way of fine. It does not provide a means to Motor Vehicle Officers to abate the illegality. As for instance, a wrong parking of vehicle may attract imposition of fine. But the statute does not entitle the Officer to remove the vehicle and prevent future recurrence. Likewise, there are several petty offences with respect to which there is no power conferred by the Statute on the Officers to see that the recurrence of the offence is prevented. There should be suitable amendments to Statute to make it in conformity with that aspect.

(i) Irrespective the capacity of the vehicles, all vehicles should be fitted with Anti-lock Breaking System (ABS)

(ii) A census of vehicles passing along the Highways should be taken. Depending on this number, the width of the road should be fixed.

(iii) A lane in the Highway should have minimum width of 3.5 metres. This should be maintained.

(iv) When the vehicle takes a turn unless the turning point has a width in excess of 3.5 metes, a safe negotiation is not possible. If this area is not wide enough the vehicle would skid. Appropriate direction should be issued to the Public Works Department (Roads) to take care of this situation.

(v) The particular recommendation to be made regarding Aluva-Perumbavoor Road needed is that, by the use of Bituminised Macadam with Asphalt Concreting, the road surface has become very smooth resulting is sudden skidding at turning points. Hence, turning points should be roughened for a distance of 50 metres, while approaching the turning on each side. This will avoid skidding.

(vi) The Motor Vehicles Act & Rules should be suitably amended, clothing traffic police officers power to prevent continued commission of traffic offences. A mere fining will not assist this, but, he should be able to abate the commission of the offence.

The above recommendations are made in accordance with Section 18(1) of the Protection of Human Rights Act 1993 read with Regulations 46 of the Regulations framed by the Kerala State Human Rights Commission under Sec.10 of the said Act. The State Government is called upon to submit the action taken report thereon within 30 days of the receipt of this report.

BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM

Present: Hon’ble Mr.Justice V.P.Mohan Kumar, Acting Chairperson.

Justice A.Lekshmikutty,

Member

H.R.M.P.No. 2156 of 2004.

Petitioner : Rajendran,

Thodiyil Veedu,

Manamboor Village,

Peringulam.P.O,

Chirayinkil.

Respondent : Dr.Balagopal & others,

Medical College,

Thiruvananthapuram.

Order dated 16^th May, 2006

Justice V.P.Mohan Kumar:

1. This complaint is made by the father of one Kumari R.Shalini, in respect of deficit service suffered by her at the hands of a medical personnel at Medical College Hospital, Thiruvananthapuram.

2. The above said patient was suffering from disorder of pancreas and was taken to the Medical College Hospital for treatment. It is allege that two months prior to the filing of the complaint, she was being treated at Sree Chithra Hospital, Thiruvananthapuram and she was operated in respect of a defective valve in the heart. She was advised complete bed rest for six months. It was during this period, it is further alleged that she developed the above said pancreatic disorder. The medical authorities of Sree Chithra Hospital where she initially consulted, referred her to the Medical College Hospital. The complaint relates to the alleged indifference shown to the patient at Medical College Hospital, when he approached them for treatment on 21-11-2004.

3. The patient was taken to the Hospital on 21-11-2004 and that day Dr.Balagopal was officiating as Unit Chief. It is complained that the patient was made to wait for two and a half hours on the pretext that there was no bed available for admission, that despite showing the Discharge Summary to the Medical Personnel no attention was shown to the patient, that since the patient was suffering from pancreatic disorder only liquid food was advised to be given and that the food was to be administered through drips and this was denied to her on the next day from 12 noon to 5.30 pm on the excuse that the drip stand was not available. Thus she suffered medical negligence. This in nut shell is the complaint.

4. On 2-5-2005, this Commission directed the Superintendent of Medical College Hospital Dr.Balagopal to appear before this Commission and the matter was adjourned. The case come up again on 22-9-2005. On that day also the Superintendent of the Hospital was absent. Therefore the Commission passed the following order.

“Despite the order of the Commission dated 2-5-2005, the Superintendent has failed to appear. The matter will be proceeded presuming as if he has nothing to defend. Kept for orders.”

5. The allegation if true is quite disturbing. The relatives of a patient referred to a major hospital would be naturally anxious about the welfare of the patient. If at the crucial stage proper medical attention is not extended to the patient then, their anxiety will be more. If so, it can be a case of indifference being shown to the hardship of human being. It is the duty of the medical practitioner to look after ailing patients and make them comfortable. From the allegations made by the complainant if true, it is evident that there has been negligence on the part of the Medical Officer in-charge on the particular day.

6. This allegation has not been controverted or denied. As such, it is presumed to be correct. May be, there might have been a crowd in the Hospital or shortage of facilities experienced. But someone should tell the Commission all these extenuating circumstance. Regrettably, the respondent has shown callous indifference here as well. Hence, we cannot assume it to be so. It is the duty of the Medical Officer to convince the ailing and suffering patients the draw back if any, they suffer. The indifference is nothing but negligence on their part and this cannot be condoned. As stated, the same conduct, the Medical Officer has exhibited before this Commission as well. They should appear and tell this Commission as to what exactly transpired. Unless properly explained, such short comings have to be presumed as negligence in the discharge of duty causing anxiety to the parents and suffering to the patient.

7. Health Service is vital to the society. The Government has established the same to safe guard the right to life guaranteed under the Constitution. If a person, statutorily ordered to safe guard this right neglects to discharge his duty, it is denying the right to life of a citizen and hence violation of Human Rights. Normally, such violation cannot easily be compensated with money. But, however, a person who had deliberately denied supply of food from 12 noon to 5.30 p.m to a suffering patient has clearly acted in a highly atrocious manner. Hence, we recommend to the Government under Regulation 46 of the Kerala State Human Rights Regulation 2001, to recover from Dr.Balagopal who was the Unit Chief in the Medical College Hospital, Thiruvananthapuram on 21-11-2004 a sum of Rs. 10,000/- to be paid to the father of the patient Kumari. Shalini, namely Sri Rajendran, Thodiyil Veedu, Manamboor Village, Perungulam P.O, Chirayinkil, within a period of one month from today. The Government is directed to take steps to recover the same from the above said persons. Closed.

Dated this the 16^th day of May, 2006

Justice V.P.Mohan Kumar

Acting Chairperson

Justice A.Lekshmikutty

Member

BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM

Present: Hon’ble Mr.Justice V.P.Mohan Kumar,

Acting Chairperson.

H.R.M.P.No. 2210 of 2005.

Order dated 10^th April, 2006

Petitioner : Ajitha.K,

Hari Nilayam,

Kuttikol.P.O.,

Chengala (via)

Kasargod.

Respondent : Aravindan Manikoth

Editor,

The Latest Newspaper,

Kanhangad.

Justice V.P.Mohan Kumar

1. The complainant, a lady who professes to be a public worker undertook a journey to Thiruvananthapuram along with certain people who were the Vice Chairman of the Kuttikol Panchayath Sri. Balan and the Chairman of the Standing Committee of the said Panchayath. Her claim is that the journey is for the purpose of discussion with reference to C.D.S, programme held as per an invitation issued from the office of the Chief Minister with respect to the programmes to be implemented in the Panchayath. She and the Vice Chairman of Panchayath travelled in the same bogie of train and another Member of the Panchayath travelled in a different bogy.

2. Giving his own interpretation and allegedly casting insinuation the infringing paper report was published by the 1^st respondent. Reading between the lines it is alleged that it is clear from the news paper report that certain illicit motive is imputed to the conduct of the complainant as also to the Vice Chairman for undertaking the trip. Hurt by the report, she has moved the Commission complaining that her right to fair reputation, privacy and dignity has been infringed.

3. In the light of the averments made by the complainant as the Commission felt that Section 16 of the Protection of Human Rights Act 1993 (hereinafter referred to as the Act) stood attracted, notice was issued to the respondent and he was heard. He was permitted to lead evidence as well.

4. The Respondent appeared in person and justified his action stating that he merely discharged duties of a Press Reporter and the news item which is true does not impute any illicit motive, either to the complainant or to the Vice President of the Panchayath.

5. To substantiate her allegations, the complainant examined herself. She was cross-examined by the Respondent in detail.

6. The photocopy of the infringing news paper report has been produced along with the complaint. The respondent does not dispute the genuineness of the photocopy. He admitted that the photocopy is the true copy of the original. The respondent examined himself and two other independent witnesses. The attempt of the respondent is to prove that by the alleged report no damage whatever was caused to the complainant as claimed. The defence in effect is justification by truth. In this behalf, the witnesses examined are the Smt. Shylaja, Former Chairman of Kanhangad Municipality and Smt. Subaida, Former Municipal Councillor of the said Municipality. Through the deposition, he attempts to bring out that his paper is of high reputation and that no harm whatever was caused to the complainant.

7. Under Section 17 of the Act, the Commission while conducting any enquiry may call for information from any person or organisation alleged to be the violator of Human Rights. The mode of enquiry as indicated shows that it can set down its own procedure keeping in view the principles of natural justice. Other than this, the Statute does not mention what steps should taken in the matter of inquiry. The only stipulation is what is contained in Section 16 of the Act which mandates that an affected person should be heard when the Commission feels that the conduct of any person is likely to be affected or the Commission is of the opinion that the reputation of any person is likely to be prejudicially affected by the enquiry. It enjoins that such a person shall be given a reasonable opportunity of being heard and defend himself.

8. I have carefully gone through the paper publication. I am prima facie of the view that a person reading the news item will be convinced that it does not in any way enhances the reputation of the complainant. The report casts insinuations and aspertions at the complainant, made in totally bad taste.

9. The question as to whether the complainant need go to Thiruvananthapuram or as to whether she had any official work etc. are all irrelevant issues in the inquiry. Anybody is entitled to travel in any train and if there be a coincidence of any other known person travelling in the same bogy of the train and to the same destination, no motive per se can be imputed. Further even if there be such a coincidence, the question then is whether it is a news of public importance to entitle the Respondent to give wide publicity as a news item in his paper.

10. Article 21 of the Constitution of India protects right to life and personal liberty of a citizen. The right to live, right to one’s dignity, right to liberty, right to equality etc. shows that right to life embraces more than a mere existence of an animal. Right to Reputation is part of that liberty. An infringement of right to Reputation is certainly a violation of Article 21. Section 2 (d) of the Protection of Human Rights Act, 1993 hereinafter referred to as the Act defines that any violation of Right to live, liberty, equality and dignity of an individual guaranteed by the Constitution of India is violation of Human Rights. If it is shown that there is violation of dignity of an individual in any manner, then it has to be inferred that there is violation of Human Rights. If so, this Commission can take cognisance of such a complaint.

11. It is not shown to the Commission that the complainant is a public figure. Publication of news regarding her personal/private behaviour is of no importance to the public. She is a house wife with three children. The fact that she travelled to Thiruvananthapuram or Cochin or to Chennai is of no concern to the common man. Her eldest child is studying in the 10^th Standard and the others are also in the school. Any hurt to the privacy and dignity of these children by the publication of any damaging news in any news paper about their mother’s conduct is violation of the right to dignity and reputation of their family. It is not claimed that the publication of this news is intended to expose the moral conduct of another person who is a public figure. If the publication of news in the paper is for public good then, may be it is a different issue. Even then, the Commission is of the view that as long as the news does not serve any public benefit, the publication would not serve any purpose; but if such reports are intended to satisfy low instinct of a human being then, it certainly violates human dignity and privacy of an individual. At the same time, the press do not have a freedom to attack the character of another, by tarnishing the image of another in consequential person. Had the complainant occupied a public office and had she been earning money from public exchequer, then the news about her private life may probably be of some relevance to the public at large. Even then, the Commission feels that it does not serve any public purpose.

12. Human Right has been defined under the Protection of Human Rights Act 1993 to include any right relating to life, liberty, equality and dignity of an individual embodied in the International covenants. Article 12 of the International Bill of Human Rights declares that no one shall be subjected to arbitrary interference with his privacy, family life, home, attacks upon his honour and reputation. It also declared that everyone has the right to protection of law against such interference. Similar is the right declared under Article 8 of European Convention on Human Rights. Interpreting the said Article, the right to privacy is recognized as a Human Right and it is described as a circle around every individual human being which no Government or individual ought to be permitted to overstep. It visualises an invisible space in human existence entrenched around and sacred from authoritative or other intrusion. (See Principles of Political Economy by J.S.Mill). In other words, it recognises a right to protection in respect of certain personal information which the Court considers, to be supreme and which may not be divulged in public. In the light of various judicial declaration, personal details of a human is privileged and private and in the event, the defendant still indulges in publicising then if the publicity gained thereby would put the plaintiff in a false light in the eye of public then there is violation of right to privacy of an individual. This according to me would be the correct the test. If the particular information which was publicised and put before the public, places the plaintiff in a false light in the eye of public, then there is actionable breach of privacy by the defendant. Applying these tests in the instant case, I am of the opinion that there has been violation of right of privacy of the individual by the Respondent.

13. The defence of justification by truth is not a defence in such cases. The complainant and several other persons travel by the same train and may be in the same compartment. From the report, it can be assumed that what is stated therein is nothing but figment of the imagination of the reporter and is intended to tarnish the image of a person. This is a case of serious violation of personal liberty and dignity of an individual. Such activities of a news paper is a serious violation of Human Rights. A mere fact that a man and woman known to each other travel in the same compartment and to the same destination does not lead to an inference that they did so with any ulterior motive to indulge in illicit activities. To use a news paper to publicise such titbits is a serious case of violation of Human Rights. This Commission is of no doubt that the Respondent is guilty of violation of Human Rights of the petitioner/complainant.

14. A feable attempt was made by the Respondent by leading evidence to show that his paper is of good standing and read by people like PW-2 and PW-3. The mere fact that a paper is of good standing does not mean, every matter reported in the paper be of good taste. It is common knowledge that there are newspapers claiming national standing reporting blatant falsehood. Hence, each case has to be decided on its own merit. It has to be decided in each case when a news item is reported, whether it is in good taste or not. The days when the label of newspaper provide respectability is history of the past.

15. Now, that the respondent has attempted to establish his credibility by examining two witnesses, we would like to examine their evidence i.e; PW-2 and PW-3. Glancing through the evidence of these persons, it clearly shows that these persons are mere hired and tutored witnesses. They have come before this Commission, only to appease the Respondent. PW-2 is a former Chairman of the Kanhangad Municipality. She states that she has been the reader of the paper for several years. It is clear from her evidence, that whatever is printed in the newspaper, she swallows as gospel truth. To a specific question, as to whether, she has the habit of enquiring into the veracity of the report published and had been attempting to ascertain whether the reports are true or not, she answered in the negative. That means if a falsehood is published, she will accept the same as truth. This is a strange and unbecoming conduct of a public servant.

16. To the same effect was the evidence of PW-3. One do not know as to how they happen to place such faith in the Respondent and his reports. This clearly shows that whatever is printed in the paper PW-2 and PW-3 would treat it as true. The contents of the report is totally taken as true. If so, if any falsehood is printed, that will also pass on as truth as far as PW-2 and PW-3 are concerned. PW-2 and PW-3 are ladies and they should for a moment think, their fate had such a report been published about them. Apart from this being an unfortunate state of affairs, this clearly indicates the amount of damage such report can cause to an individual. If a news item is later found to be false, no one corrects the same and the public does not become aware of the correction. As is seen from the evidence of PW-2 and PW-3, they did not take any steps to verify the veracity of the news paper report. This is the common conduct of an ordinary reader of a news paper. He never takes any steps to verify the correctness of the report. It passes as a true story. Thus the damage caused is permanent – be it true or false.

17. Now, PW-2 and PW-3, by tendering evidence have betrayed their anxiety to save the respondent. They declare that they have been reading this paper for more than 15 years. PW-2 is only 31 years old now. It means from the age of 16, she is fed with news that is being reported in this paper. From the fact that they have been swallowing the news items without even cross verification all these years discloses that they do not even attempt to ascertain the truth and believe whatever is fed into them. It is unfortunate that such persons are elected to represent wards in the Municipality and even be the Chairperson.

18. The Respondent certainly is not a moral police. Obviously the respondent’s object is to intimidate people like petitioner, who may be compelled to yield to the demands of the respondent. Such conduct does not at all conform to journalistic ethics. Conduct of the respondent violates journalistic ethics and public taste. He has committed professional misconduct.

19. This Commission would not have pursued this matter had it not been for the gravity of the situation. It is now a common practice in certain class of journalists, be it of national daily or that of local mushroom daily, to indulge in derogatory articles. This practice should be deprecated and condemned. Besides, hired witnesses should also not depose untrue materials. The Commission is of the opinion that PW-2 and PW-3 are discreditable witnesses and untrustworthy. They have demonstrated that they are hired and tortured witnesses. Besides, they are immune to the right of a woman to safeguard her dignity. The complainant is a stranger as far as they are concerned. It was most unfortunate on their part, to turn up before this Commission as a witness. As a woman, they should have considered how they would have reacted, had yet another paper published similar stories about them in low taste.

20. The Commission is of the view that the Respondent did not act with the responsibility of an Editor of a news paper while publishing the report. He seriously breached the right conferred on him as an Editor. Serious dereliction of duty has been committed by him and there is breach of privacy of an individual in the instant case. This is a matter which has to be gone into by the Press Council of India who should take appropriate action. I recommend to the Government to take stringent action against the Respondent for propagating such news item by moving the Press Council of India. The copy of Order be forwarded to Press Council of India, Soochana Bhavan, 8- C.G.O Complex, Lodhi Road, New Delhi - 3.

Dated this the 10^th day of April, 2006.

Justice V.P.Mohan Kumar

Acting Chairperson

List of Documents

Annexure A1 – Photocopy of the paper cutting from the newspaper “The Latest”.

Complainant’s witness

PW1 – Smt. Ajitha (Complainant)

Respondent’s witnesses

DW1 – Aravindan Manikoth (Respondent)
DW2 – Smt. Shylaja
DW3 – Smt. Subaida

Dated this the 10^th day of April, 2006

Acting Chairperson

BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM

Present: Hon’ble Mr.Justice V.P.Mohan Kumar,

Acting Chairperson.

H.R.M.P.No. 2416 of 2005.

Order dated 26^th April, 2006

Petitioner : Smt. Surekha,

W/o Sri. D.Rathod,

C.I.S.F Colony (M.C.F),

Salgave P.O, Hassan,

Karnataka.

Respondent : Nil

Justice V.P.Mohan Kumar, Acting Chairperson:

1. I have perused the complaint as also the records. The facts giving rising to the complaint has occurred outside Kerala State and as such is not within the jurisdiction of this Commission. However, as the allegation deal with alleged ill-treatment of the wife of a Jawan, I examined the case. I find that the basic issue raised from out of which the present grievances arises relates to disciplinary action taken against Constable No: 902330175 Sri D.Rathod under Rule 36 of the CISF Rules 2001. It is not possible for this Commission to weigh the pros and cons of the decision taken and assess whether on the given evidence, the punishment imposed is just and proper. The Commission does not possess any power tantamount to what is conferred under the Industrial Dispute Act. Therefore, none of the grievances raised before the Commission on the question of involvement of the delinquent on the quantum of the punishment imposed on the complainant’s husband can be gone into and re-examine by the Commission.

2. However, I wish to make it clear that the grievances of his wife Smt. Surekha, W/o D.Rathod, residing in CISF Colony (MCF), Salgave.P.O., Hassan, Karnataka has to be gone into and merely because her husband Mr.Rathod was a delinquent in a Departmental enquiry and punishment has been imposed on him does not mean that she also can be proceeded against in any manner. No statute empower the superior officers of Mr.Rathod to take any vindictive action against her nor she as alleged in the complaint can be ill-treated. This Commission declares that the Assistant Commandant, CISF Unit (MCF), Hassan should not in any manner interfere with peaceful residence of Smt. Surekha, W/o Rathod allegedly residing in CISF Colony (MCF), Salgave.P.O, Hassan, Karnataka, if she still resides there as on today, and he should be afforded full protection to safeguard her dignity and honour. No further orders. Closed.

Forward the copy of the order to the Assistant Commandant, CISF Unit (MSF), Hassan, Karnataka State for implementation.

Dated this the 26^th day of April, 2006.

Sd/-

Justice V.P.Mohan Kumar

Acting Chairperson

//True Copy//

Registrar

BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM

Present: Hon’ble Mr.Justice V.P.Mohan Kumar,

Acting Chairperson.

H.R.M.P.No. 4049 of 2005.

Order dated 14^th June, 2006

Petitioner : (1) Pain and Palliative Care

Society,

Medical College.P.O,

Calicut.(represented by

Shri.E.Subair)

(2) Dr. Suresh Kumar,

Director,

Institute of Palliative

Medicine,

Medical College.P.O,

Calicut – 673 008.

Respondent : (1) The State of Kerala

represented by

The Chief Secretary,

Secretariat,

Thiruvananthapuram.

(2) The Director of Medical

Education,

Government of Kerala,

Thiruvananthapuram.

Justice V.P.Mohan Kumar :

(1) Two sets of complaints received in relation to development of programme for Palliative Care in Government Hospitals have been clubbed and registered as the above HRMP. The first one is being submitted by one Mr. Subair, Erinhikad, Shamna’s, 30/433 A, Chevayur.P.O, Kozhikode District and addressed to the KSHRC. The second one is from Dr. Suresh Kumar, Director, Institute of Palliative Medicine, Medical College Hospital, Calicut.

(2) Both the complaints were registered as single HRMP and notices were issued to the complainants to appear before this Commission. Sri Subair represents Pain and Palliative Care Society. Dr. Suresh Kumar appears and high lighted the points alleged in the complaint before this Commission. His request is extracted as under:

“ 1. We request you to issue a note restating the government policy that palliative care is part of Health and family Welfare activities.

2. We request you to establish a program to give basic palliative care training to atleast 50% of the clinical staff in Government hospitals in an year. This can be achieved by encouraging doctors and nurses in Government sector to undergo training in Palliative Care. If District Medical Officers can depute doctors for Four-day Foundation Course in palliative care (which can be organized at the district level), it can help in improving the care of patients with incurable diseases in the state. The nurses can undergo a two-day in service course in Palliative care and the pharmacists, a one-day course.

A. Institute of Palliative Medicine is the main training center in Palliative Care in South East Asia. We will hence be able to provide faculty for these courses with out charging any course fee for their services. However expenses for background training materials and travel and accommodation of the faculty need to be supported. We estimate that Rs. 10,00,000/- (Rupees Ten lakhs only) will cover for these two items of expenses of we plan to train one thousand doctors this year. Training programs can be organized by the District Medical Officers at the convenience of the participants.

3. Our six-week basic certificate courses now enjoy good reputation internationally. Interested doctors and nurses in Government sector can also be deputed for these Basic Certificate Courses as in-service training in palliative care. As part of an arrangement with the government, we will be able to waive the course fee for the candidates selected by the government. We may also be able to arrange accommodation at a subsidized rate at the Institute of Palliative Medicine, Calicut in the case of deserving candidates.

4. If the government can initiate plans to set up palliative care clinics at least in all the Taluk Hospitals, it will be a big step in catering the nee of ever increasing number of people suffering from chronic illnesses. Also it is necessary to initiate steps to make these clinics ‘Recognised Medical Institution’ (RMI) to possess oral morphine, one of the essential medicines for pain relief in chronic severe pain. (Three mandatory requirements for becoming an RMI are i.) There should be a doctor trained in palliative care ii.) There should be facilities to stock and dispense medicines like morphine iii.) There should be facilities to give medical care to the patients.)

5. If a doctor with BCCPM can act as facilitator for the program in each district, the whole program can be better co ordinated.”

This is the relief sought for by Dr. Suresh Kumar in his petition.

Whereas the request of Sri Subair is confined as under:

1. To give training in palliative care to all the medical and nursing staff in public sector through in-service courses.

2. To establish palliative care facilities at least in one government hospital in every block panchayath area.

3. To take up the issue of including palliative care in undergraduate medical and nursing curricula with the medical and nursing councils of India.”

(3) As stated, notices were issued to Director of Medical Education, Kerala to submit their views. In response, they submitted a statement on 16-3-2006 incorporating the following submissions.

“1. To give training in Palliative Care to all the medical and nursing staff in public sector through in service courses. In this regard since the Director of Health Services is the controlling officer of the health staff, a direction may be given to them.

2. To establish palliative care facilities atleast in one government hospital in every block panchayath area. This matter comes under the jurisdiction of the Government of Kerala. Hence direction may be given to the local self government departments to take up the issue.

3. To take up the issue of including palliative care in undergraduate medical and nursing curriculum with the medical and nursing councils of India. In this regard,, we are very much pleased to take up this issue with MCI and NCI and also to make it a state level policy to impart two days training in Palliative care to undergraduate medical students and nursing students in medical colleges in Kerala to give them an exposure to the area. We also plan to include all patients in need of Palliative care irrespective of their diagnosis in the purview of palliative care services. Steps will also be taken to facilitate training and exposure in palliative care for teachers in Medical Colleges service.” (underlining provided for high lighting)

(4) I have considered the issues urged. Admittedly, issues involved are not contentious in nature which have to be adjudicated by contesting sides and evidence.

(5) At the same time, the issues do raise major and sensitive Human Right problems.

(6) A right to peaceful living and dignity is adjunct of Article 21 of the Constitution of India. It is part of a treatment to a terminal malady. It is a fundamental duty on the part of the Government to extend such treatment to a patient and which then crystalises as part of a right to peaceful living of a human being, be he a citizen or otherwise. To receive the said treatment, it should be recognized, he has a right which hence is part of Article 21 of the Constitution of India.

(7) It is a fact that large number of patients with chronic diseases like advanced cancer, chronic neurologic problems, HIV/AIDS, end stage of respiratory and cardiac disease are suffering silently in hospitals and elsewhere due to want of Palliative care. It is stated in the pleadings of Dr. Suresh Kumar that this is pronouncedly demonstrated in Malappuram, Wayanad and Calicut Districts.

(8) Basically, a patient suffering from terminal illness, who is hospitalized expects an active treatment for their pain and symptoms. Pain, it is common knowledge, is the most dreaded symptom of hospital patients. An untreated pain can increase duration of hospitalization besides leading to avoidable medical complication. The common end product of pain is anxiety and depression. A patient who is generally well aware of his illness looks forward for coordinated care through out the course of illness. He desires steps to be taken for their care and to know efforts being made to treat his pain and symptoms. A patient desires to be involved in his treatment, both pre and post treatment care.

(9) To fall ill and to be victim of incurable illness is no sin. Be gone are the days when it was considered as the curse of previous birth. It is not considered, any more as the wages of sin. A human being will dream of naturally, a comfortable life.

(10) There are three faces for a method of treatment. Initially, it is the manifestation of the illness in the form of an outward symptom. If this is treated, and the effect is removed, it does not effect the illness. Unless the cause of the illness is treated, it does not cure the illness. That is the second stage. The third is, when the illness, the cause and effect cannot be cured, then the pain has to be treated and decreased and that is where the palliative treatment steps in. It is thus a composite treatment, that a human being in need of palliative treatment looks forward.

(11) As such, when it is understood that the right to life guaranteed under Article 21 of Constitution of India is not a mere hand to mouth existence but peaceful and comfortable as well then, palliative treatment is also part of the said right. A mere provision for a roof over the head and one square meal a day is not quite something that alone is contemplated by the Constitution of India. Like a rainbow, right to life takes many hues and shades depending on the circumstance. Therefore, a comfortable living despite acute painful illness is also encompassed in the Constitution. As seen from the pleadings of the petitioner Subair intolerable pain, vomiting, foul smelling wounds are part of miserable existence also have to be treated.

(12) In the statement filed by the Director of Medical Education, three things have been stated. Namely;

(i) The Director of Health Services be directed to give training to all Medical and Nursing staff.

(ii) A direction be given to State Government to establish at least one hospital in every Block Panchayath area to extend palliative care facilities.

(iii) That D.M.E is taking up with Medical Council of India to include Palliative care in under graduate Medical and Nursing curriculum.

(13) But the question is that how does one go about it ? It is not seriously in dispute that as at present, the under graduate Medical or Nursing student is not trained in the domains of knowledge and skills covered by palliative medicine. Skill in palliative medicine would encompass organizing of physical, psychological and spiritual privation encountered by the patient suffering from terminal illness as also his family. As such, the need is creation of separate wing in the Medical colleges directed to train the existing Medical graduates/under medical graduates or Nursing students.

(14) In principle, as can be seen from the Statement filed so far the Government has not taken any steps to give effect to palliative care discipline. Hence, the State should take appropriate steps to impart training to equip Medical Practitioners and Nurses in Palliative Medicine. The patient has a right to know the treatment being extended to him. He should also know, the legal right he has, as to the choice of the treatment and consequences of the treatment. The treatment provide, should make known these aspects as well to the patient and his next kith and kin. Hence, it should emphasis that the training imparted should equip the professional in

(i) Communication

(ii) Legal decision making

(iii) Pain in cancer patients

(iv) Medical complication in humans victims of fatal illness

(v) Psychiatric and Neuro problems of patients with terminal illness

(vi) Spiritual support to terminal patients victims of terminal illness.

Such persons, thus trained should possess higher level of clinical and non-clinical expertise, commitment to the patient and his family.

(15) In the light of what is stated above, it is necessary therefore to issue the following directions to Government of Kerala under Regulation 46 of the Kerala State Human Rights (Procedure) Regulation 2001. Namely;

The Government should take steps to include Palliative medicine as a subject in the curriculum of study for Nurses and under graduate Medical students.
The Government should arrange to give training in Palliative care to all Medical Staff in Government/Private Hospitals.
Every Panchayath should have a Pain and Palliative Care Hospital and the postings here should be regular.
The Government should approach the Medical Council of India to insist every Doctor passing out of the College should have training in Palliative medicine. Likewise the Nursing Council of India should also direct the Institutions that every nursing candidate should have training in Palliative medicine.
The Government should establish clinics in the recognized Medical Institutions which has a Doctor trained in Palliative Medicine.
Enough medicines to take care of Palliative treatment.
Such hospitals should have facility to give medical care to the patients.
The Government should see the imparting of training in the discipline of Palliative Medicine should be under the control of Government and such Authorities. There should be licence in specific Authority, that may lead to devaluing the training programme.
An action taken report should be submitted as contemplated under Regulation 46 of Kerala State Human Rights Commission Regulations, 2001, within a period of 30 days of receipt of this recommendation.

Dated this the 14^th day of June, 2006.

Sd/-

Justice V.P.Mohan Kumar

KERALA STATE HUMAN RIGHTS COMMISSION

M.P. Appan Road, Vazhuthacaud, Trivandrum – 695 014

PHONE : 2337263

HRMP 1194/04 Dated, 16^th November 2004

Dear Sri. K.K. Ramachandran Master,

I had a discussion along with Hon’ble Member Prof. S. Varghese with the following Officers of the General Hospital, Thiruvananthapuram with respect to the Hospital condition prevailing there. Namely:

Mrs. Dr. Soya Babu, Superintendent, General Hospital, Thiruvananthapuram.
Dr. Mahesh Kumar, R.M.O, General Hospital, Thiruvananthapuram.
Dr. Dinesh, Dy. Superintendent, General Hospital, Thiruvananthapuram.

From the discussion prima facie it reveals certain steps have to be taken as a corrective measure to improve the existing conditions of the General Hospital. I have detailed below few of them.

1. The existing pipe line supplying water to the General Hospital has to be replaced with a new line with larger bore. It appears that the existing pipe line is old and rusted causing obstruction for free flow of water. Besides, there may be bacterial infection due to fungus within the existing pipe as it is well known that the bore cannot be cleaned, the only means to rectify is to replace it. I understand that the Superintendent of General Hospital has already addressed the Assistant Executive Engineer, Kerala Water Authority, Chala sometime in August, 2004 to take necessary steps in the matter urgently.

2. There is acute shortage of staff strength in the Hospital. The staff position is in the ratio 6:1 i.e; for six beds one Nursing Nurses. Reckoned in this manner, there is requirement of 113 Nursing Nurses and 53 Head Nurses. This is not available in the entire Hospital. In this behalf, I will refer to Ward No: 9 illustratively. This ward has attained “notoriety” because of the media attention drawn due to a photograph published in one of the vernacular daily. The bed strength is 49 (27 Male and 22 Female ). Actually the situation prevailing is that there are three to four times excess patients in this ward. For want of space, these patients are accommodated on the floor and sometimes under another cot. The Doctors informed us that several patients are cured patients and in a position to leave the Hospital. While Police Authorities and others bring abandoned and destitute patients to the Ward and leave them there, they do not at all take away the cured patients out of the Ward. This is mainly because these unfortunate people have no place to go. No one claims them and they have almost forgotten as to from which place they came and as to where they should return. Unless there is a Rehabilitation Centre were such persons can be housed, the will only multiply. Even though there is suitable space in the hospital compound itself to put up a construction to function as a Rehabilitation Centre, yet it may not be advisable to do so for various reasons. That may lead to an undesirable traffic between cured patients in the Rehabilitation Centre and the patients in Ward No.9 and other comfortable wards. The Government should actively consider constructing a Rehabilitation Centre at a suitable place far way from the Hospital atmosphere. Once decided in principle, as to how to go about implementing this can be worked out.

3. Immediately there is a need for constructing one more block adjacent to Block No.9 to house an extension for Block No.9, By putting up this structure, many of the patients who are lying spread on the floor, under the cots and in the verandah could be shifted to this Block. The patients have been taken here and accommodated on the floor space of Block No.9 as there is no other place to house them. Besides such accommodation causing undesirable effect that it breeds infectious diseases among cured persons, it is really inhuman to make aged and invalid patients lie on the floor.

4. There is one other aspect also intimately connected with this Ward No.9. That is this ward is being treated as a place where the Police generally dump people picked up from the streets as destitutes. Normally, there is no by-standers and therefore they have to depend on the Home Nurses arranged by the Hospital authorities. Thus directly these persons are at the mercy of the Hospital Authorities and. Charitable organizations. No doubt, both are doing commendable and wonderful services here, yet more is wanting which could be done to these helpless people. This is one other reason why the Government can consider immediately putting up an additional structure where at least these sick persons can be shifted and can have a proper place to rest. Thereafter the existing arrangement for the distribution of food currently being done by Social Organisations and Hospital Authorities can be streamlined.

5. Next important consideration is regarding the disposal of the waste. There is an Incinerator established expending large sums of money. We were informed that it is not working as an equipment costing Rs.63,000/- has to be purchased to rectify the current defect. We were also told that the Hospital authorities have sought for administrative sanction to acquire this part. The Hospital Authorities informed me that delay in getting administrative sanction from the Government is causing much inconvenience and embarrassment. The accumulation of removable rubbish is yet another item. We were informed that, they should follow the procedure of inviting tender and disposing off the same. This also requires administrative sanction which again is delaying the whole issue. Meanwhile, waste accrues creating nauseating atmosphere. To avoid this statement I suggest to permit them to enter into a running contract valid for 1 or 2 years with the right to remove the waste as and when it accrues. This is a very important in the matter of removal of broken bottled and glasses which are heaped at a place with a chance of being picked-up by anti-social elements and strewn all over. Also it was noticed that there are other wastes collected such as food waste thrown by patients and their by-standers which attract street dogs which is a menace to all in and around the hospital.

6. There is difficulty in the matter of procuring medicines as well. It is desirable that a separate Corporation is formed to procure medicines for all Government Hospitals through out the State who would acquire and replenish stocks and medicines without any delay in all Hospitals. It is a matter which should be engage attention of the Government seriously.

7. There is one other aspect which should be noted by the Government in connection with the cleaning of Hospital. There are two Grade personals recruited for this specific work. They have two categories namely; I Grade and II Grade. Grade I Hospital Attendance attend to the cleaning of the roof, carrying stretchers pushing stretcher cart etc., while Grade II is predominately discharge the duty of cleaning the floor. The II Grade employee are the feeder category of filling up the vacancies in I Grade. It is noticed that the age of superannuation for a II Grade employee is 70. Majority of the II Grade employees have forsaken promotion so much so, they remain in the same category till their retirement. A I Grade employee is eligible to be promoted to the higher category and as and when they are promoted, the I Grade post remains vacant as there may not be any willing candidate to be promoted from the II Grade. As such, I Grade posts are permanently vacant. This anomaly should be rectified by the Government by mending the Service Rules, including making provision for direct recruit as well to the I Grade staff besides promotion from the II Grade.

8. The electrical wiring of the entire hospital has to be replaced. The existing wiring is old at some places it is dangerously separated from the wall. Wherever plastering on the walls have peeled off, it should be replaced..

It is not possible to meet the needs of patients by the Medical Men alone as they have enough more duties and responsibilities in the hospital to discharge. Visits by members of the public, in the wards where patients are convalescing will improve the atmosphere of the Hospital. After making a meaningful discussion N.G.Os should be located, who are willing to visit the hospitals and act as by-standers for lonely and desperate patients. Therefore, after consulting them and this Commission be permitted to constitute a Non-Statutory Committee consisting of persons drawn from N.G.Os and other Non-Government bodies to involve in the functioning of the Hospital under the aegis of the State Human Rights Commission. It is the duty of the Committee after intimating the Human Rights Commission, to take up all appropriate steps to improve the condition in the Hospital.

I would like to have discussion with you on these aspects, time permitting.

Yours sincerely,

Sd/-

Justice V.P. Mohan Kumar

, Acting Chairperson

Shri. K.K. Ramachandran Master

Hon’ble Minister (Health),

Government Secretariat, .

Thiruvananthapuram.

Before the Kerala State Human Rights Commission

Thiruvananthapuram

Present

Hon’ble Mr.Justice V.P.Mohan Kumar,

Acting Chairperson

HRMP No.405 of 2003

Petitioner: Janakeeya Samithi, C/o.S.Akbar, Shine Medicals,

Sasthampadi, Palakkad –678 621.

Respondent: Secretary, Kanjikode Grama Panchayat.

HRMP No.2369 of 2004

Petitioner: R.Ramanadhan, K.N.Puthur V.V.K>Nagar,

Kanchikode.

Respondent: The Proprietor, Kairali Steel, Kanchikode.

Order dated , 2006.

Order delivered by Hon’ble Justice V.P.Mohan Kumar

1. These two cases illustrate the poignancy experienced and sufferings undergone by the villagers near the Industrial Estate in Kanjikode. The dwelling houses are situated ain Pudusseri Grama Panchayath. There are nearly 8 Steel Re-Rolling Mills spread in around the neighbourhood of the residents of the villages. Some of them are:

1) Kairali Steels

2) M/s. A.P.Steel Pvt.Ltd.

3) M/s. Minar Alloys & Forginfs Pvt.Ltd.

4) M/s. Surabhi Espath Pvt.Ltd.

5) M/s. P.P.S. Steels Pvt.Ltd.

6) M/s. M.A.Steels Pvt.Ltd.

7) M/s. Hadeed Steels Pvt.Ltd.

8) M/s. Surabhi Pipe Casting Pvt.Ltd.

Just beyond the limits of these dwellings in the village, the following mills also exist: Namely:

1) M/s.Libra Steel Pvt.Ltd.

2) M/s.Vanjinad Forgings Pvt.Ltd.

3) M/s.Padma Balaji Steel Pvt.Ltd.

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4) M/s.Lal Steel Pvt.Ltd.

5) M/s.Gasha Steel Pvt.Ltd.

6) M/s.Scotfree Steels Pvt.Ltd.

7) M/s.World Wide Steel Pvt.Ltd.

8) M/s.Steel Max Rolling Mills Pvt.Ltd.

9) M/s.Mannarghat Steels Pvt.Ltd.

10) M/s.Bhoopathi Steels Pvt.Ltd.

11) CPS Steels Pvt.Ltd.

12) S.M.M.Steels Pvt.Ltd.

All these Mills stated are situated in the same Pnhayuath ie.Puduseri Grama Panchayat, Palakkad District. Apparently it looks as if a jungle of steel Re-rolling Mills.

3. The existence of such mills, it is alleged, generates impediments to the enjoyment of pollution free environment by the people in and around the area. The villagers filed complaints before this Commission complaining of atmospheric pollution and depriving of clear water in the nearby river. They sought this commission to invoke its jurisdiction to secure pollution free living for them. They ally that there is a river skirting the village and due to the discharge of efflux from the factories, this river is completely polluted. They claimed that the villagers due to the proximity of the river used to use the water for drinking and other purposes. Since the allegations disclosed serious case of atmospheric pollution and acts which contribute to affect the right to live of the villagers, the Commission entertained the complaint and registered the same as HRMPs.

4. On these grievances, to verify the veracity of the allegation I visited the residential houses referred to in the complaint. I noticed that employment in the factories have been secured by persons coming from far off places like Bihar and Uttar Pradesh apparently because of the hard labour work involved in the factory involve and also considering the gains made by the management due to comparatively low wages that need be paid for such workers. However this Commission is not concerned with this issue at present.

5. The complaint relates to the environment pollution experienced by the villagers living in and around these factories. As stated I visited the village surrounding the factories. This village is separated aby a small river. In fact this is only an apology for a river as I noticed that the water is completely polluted. The foul smelling smoke that is emitted from the factory is completely black.

BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM

Present: Hon’ble Mr.Justice V.P.Mohan Kumar,

Member.

H.R.M.P.No.1626 of 2006.

Order dated 1^st September, 2006.

Petitioner : Suo-moto

Respondent: : Kerala State Electricity Board

Recommendation made by Justice(Retd.) V.P.MOHAN KUMAR;

1. The anove HRMP was initiated on the basis of a news item reported in Malayala Manorama dated 28^th May, 2006. The show cause notice issued to the officers representing K.S.E.B. stated as under:

“Whereas, the Malayala Manorama, Eranakulam Edition dated 28-05-2006, carried the enclosed news item disclosing the unfortunate death due to the electrocution of Saddam Hussain, S/o.Mujeed Rahman, aged nine years, a pavement dweller in Aluva,

And whereas, the news discloses an act of negligence on the part of the Officers of K.S.E.B. is not disconnecting power supply through a broken live electric wire.

And whereas, this Commission feels such act on the part of the public authority like K.S.E.B. amounts to callous indifference shown to the safety of public at large.

And whereas, this Commission proposes to take suo-noto proceedings with respect to the incident

It is decided to set the matter for hearing to 24-06-2006 at the sitting at Guest House, Aluva.

Please enter appearance and disclose to the Commission, the steps taken by you to avoid prevention of such incidents in future and as to what compensation would be paid to the legal representatives of victim of the accidents.”

2. In pursuance to the notice, the Executive Engineer, Electrical Division, Alwaye and two other Officers, appeared on 24-06-2006. They made their submission and they sought some time to file detailed statement. On 01-07-2006, a statement was

filed on behalf of the Kerala State Electricity Board, detailing their objection to the show cause notice.

3. The facts are that a child by name Saddam Hussain, aged 9 years, while passing along the National High Way described in the news paper in detail near the KSRTC Garage in Alwaye, came in contact with the broken live electric wire. The allegation in the news paper is tht there was negligence on the part of Electricity Board in not disconnecting the power supply despite notice of the snapping of the wire. It was raining very heavily. The deceased was Saddam Hussain, S/o.Mujeeb Rahman of Thakkala Village in Kanyakumari District. He and his sister and parents were pavement dwellers in and around Alwaye and they were below poverty line. His mother had certain chronic illness disabling her from walking, the father had also certain chronic illness. Their only hope was their son. In view of the physical disability of the mother, the father carried her in a three wheeled cycle rikshaw.

3. As undertaken, the Board filed a statement stating as under:

“On 27-05-2006, a fatal accident was occurred to Master Saddam Hussain, son of Sri.Mujeeb Rahman, Darga Road, Makkayil Palayam, Thakkala P.O., Kanyakumari(District). The incident was happened in the spot opposite to FIT Company, Aluva and in front of Best Bakery. When the information of the accident was received by Sri.Synish, Lineman, he immediately contacted the Sub Station, Aluva and arranged to switch off the 11 KV Thaikkattukara feeder which is feeding the said area. Supply to the said area from 110 KV Sub Station, Aluva was also got switched off as per information from the Section Office at 8.40 a.m. The matter was reported to the Electrical Inspectorate, Eranakulam and Police Station, Aluva for taking further action. Immediately after switching off the feeder the duty staff rushed to the accident spot, meanwhile the victim was taken to the Karothukuzhy Hospital, Aluva.

The accident site was inspected by the Section Assistant Engineer and a site mahazar was prepared. It is understood that there was heavy rain and wind on the morning of 27-5-2006. Due to that a branch of the tree situated beyond the clearance area of the line was broken and fell on the line due to the lashing of heavy wind and caused snapping of the line. Hence it is understood that the fact of snapping of the line failed to reach the notice of the public at once. No sooner did the line snapped, the boy came into contact with the live line and got electric shock. However, the falling of the tree and snapping of line were instantaneous and could not be prevented by normal precautionary measures.”

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5. The parents of the deceased child are street dwellers. As is seen from the paper report, they were not present at the scene at the time of accident. As such, no purpose could be served by directing them to produce evidence. Besides, Electricity Board being a Corporate Body their fight against them would be totally one sided and between unequals. Hence by setting it down for evidence, it may give rise to an avenue to lead perjured evidence. Therefore I decided to proceed without further postings.

6. I considered the submissions contained in the statement. The Board had also produced a photo copy of a Register maintained by them wherein it was noted the time of intimation of the accident. After considering all aspects, I am of the view that it is a clear case where rule in Rylands Vs. Fletcher laid down by Justice Blackburn in 1866 would apply. The rule of strict liability declared therein has come to stay. The said rule decares inter-alia that:

“The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so not do so he is prima-facie answerable for all the damage which is the natural consequence of its escape.”

7. In several cases including M.C.Mehta Vs. Union of India 1987(1) SCC 395, in Parvati Devi & others Vs. Commissioner of Police, Delhi & others 2000 SCC 754 and also in HSEB & others Vs.Ramnath & others 2004(5) SCC 793 this rule has been invoked and applied by the Supreme Court. In Ramnath’s case referred to supra dealing with electricity mishap the Supreme Court observed as under:

“The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and/or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. If they find that unauthorized constructions have been put up close to their wires it is their duty to ensure that that construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that the required distance is kept between the houses, they have to ensure that the required distance is kept between the houses and the wires, even

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though the houses be unauthorized. In this case we do not find any disputed question of fact.”

8. In this context we may rely on the following statement of the Supreme Court made in M.C.Meha’s case cited above relying on Rylands Vs. Fletcha. It is stated,

“Where an enterprise is engaged ain a hazardous or inherently dangerous activity and harm is caused on any one, on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident……”

The Electricity Board has the monopoly in the matter of supply of Electrical energy. There is no gainsay that it is inherently a hazardous industry. If any accident occurs in the course of it carrying on the said activity strict liability is cast on the Board to compensate the victim. As such the Electricity Board, the tortfeaser has strict and absolute liability and there are no exceptions.

9. The question then is whether the Human Rights Commission constituted under the Protection of Human Rights Act 1993, (the Act) can exercise its jurisdiction under the Act in such cases. The answer has to be in the affirmative. The Commission has jurisdiction when its attention is drawn in respect of cases of violation of Human Rights. By virtue of definition contained in Section 2(d) of the Act, a right to life is a Human Right. And when the said right is abridged or destroyed, by an instrumentality of State like the Board, it is clearly a case of human right, and it is a matter that can be enquired into or examined by the Human Rights Commission. The Act enlarges the jurisdiction of the Commission and it cannot be interpreted in a manner to abridge such jurisdiction.

10. In fact, the National Human Rights Commission constituted under the Act has invoked the powers of Commission in similar cases under Section 18(3) of the Protection of Human Rights Act 1993 and recommended to the concerned Government for grant of immediate interim relief for the members of the family similarly placed. The said Commission in Case No.122/1/2000-2001 had stated as under:

“A State professing to be a welfare State is expected to ensure a liberal construction of a beneficent and benevolent legislation like Section 18(3) of the Protection of Human Rights Act, 1993, to promote the philosophy of the

- 5 -Constitution and the Statute. The Commission has no doubt that not only the Government of Andhra Pradesh, but also the instrumentalities of the State like A.P.Southern Power Distribution Company Ltd; are ally of those values. The Commission, therefore, expected a response from the Corporation, in a way which accords with the message and philosophy of law and the obligations of a Welfare State.” “

A funeral expenditure amounting to Rs.2,000/- (Rupees Two Thousand only) has been disbursed to the victim’s father on the same day itself. K.S.E.Board has formulated a scheme in the name of “Vydyuthi Sureksha Insurance Policy” in consultation with M/s.National Insurance Company limited, to extent financial assistance to the families of the victims, in electrical accident as ‘ex-gratia’ as a welfare measure. Under this Policy, the dependants of an electrocuted victims is eligible for an amount of Rs.50,000/- towards ‘ex-gratia’. The legal heirs can claim the said amount provided they fulfil the procedural requirements under the said scheme.” (Underlining for emphasis)

Before the Kerala State Human Rights Commission

Thiruvananthapuram

Present : Hon’ble Mr. Justice Shri.V.P.Mohan Kumar, Acting Chairperson

HRMP No: 2418 of 2005

Petitioner : Sri. A.K.Menon,

C/o. Sri. A.S.Mannadi,

Field View Nagar, Kunnath Lane,

Thiruvambadi, Thrissur-680 001.

HRMP No: 2311 of 2005

Petitioner : Sri. Mukesh Jain, VI/850, New Road,

Mattancherry, Kochi-2

Respondent : The State of Kerala represented by

The Chief Secretary,

Government Secretariat,

Thiruvananthapuram.

Final recommendation under Section 18 (5) & (6) of the Protection of Human Rights Act, 1993.

1. These applications relate to reducing the weight of the school bag being carried by small children who are studying in schools. It is common sight and common knowledge of the parents that children who attend the classes upto the High School level are to carry number of Text Books and Note Books every day to school which materially increase the weight of the school bag. It is apprehended that carrying of such weighty bags may even result in physical deformity of the children. If it continues like this, it is apprehended that there will be more hunch backs in the society than healthy and active children. Considering the complaints from parents, initially received at Palakkad from Sri. A.K.Menon residing at Field View Nagar, Kunnath Lane, Thiruvambadi, Thrissur, the Commission decided to take appropriate steps in the matter and to examine ways and means to reduce the weight of school bag. Sri. Mukesh Jain, yet another well-wisher of suffering children, who is residing at VI/850, New road, Mattancherry, Kochi – 2 also submitted a petition before the Commission in this behalf, as well, along with certain practical suggestions.

2. Carrying of bags with undue weight really has a negative effect on the interest of the children to attend studiously in the class. The oppressive weight on small children can be felt only while carrying such bags. It reminds the pictures of ancient slaves carrying gunny bags on their back. It is real hardship for them and in fact a gross violation of their Human Rights. The parents also suffer mental agony while sending their child like this and apprehend that these children will turn into a modern hunch back of Notre Dame! The mental agony being inflicted on the parents is a clear case of violation of their human rights as well.

3. At the time of the hearing, it was brought to the notice of the Commission that Dr. Abraham Paul and Dr. Sachithananda Kamath, Conveners of the Committee constituted by Indian Academic of Paediatrics, Kerala Chapter, have done certain amount of investigation and study on this issue. On the basis of such studies and investigation they have prepared a report. When the proceedings were made known to the public they intervened and submitted the report prepared by them. When the report was submitted before the Commission, and when Dr. Paul appeared and participated at the hearing, a copy thereof was made available to Sri. Mukesh Jain, one of the petitioners. Thereafter, the above said Medical Doctors were requested to meet along with Sri. Mukesh Jain and study the pros and cons of the proposal. After discussion, the following suggestions have been made:-

1. Pre-primary Classes (L.K.G & U.K.G)

(a) the undue emphasis on reading and writing is detrimental to the development of a pre-school child and it should not be practiced.

(b) Pre-school child should not be subjected to formal examination and home work. Grading should be preferred to ranking or marking.

(c) Bag should be small with minimum weight only to accommodate a snack box, lunch box and a small diary. No text books, note books and water bottle (Total weight less than a kilogram).

(d) Minimum age for entry on the LKG should be four years complete on the day of admission.

(e) Mother tongue should preferably be the medium of communication in pre-school education.

(f) The selection criteria for admission should not be based on interview and testing the child.

(g) Medical fitness and immunization should be must for admission.

(h) RTO Safety Regulation should be strictly followed while transporting children to and from a school.

(i) Pre-school education should not be a must for admission in the 1^st Standard.

(j) The Pre-school activities should be based on the recommendation of NCERT, New Delhi.

2. Lower Primary and Upper primary (Standard 1 to 7)

(a) Text Book: Split the Text Book into 3, specially for eachterm according to syllabus (Education Department should provide)

(b) Note Book: 80 or 100 paged, thin binding (with brown cover) for each subject.

3. High School Classes (Standard 8 to 10)

(a) Text Book: Same as above.

(b) Note Book: Filing system (A4 size paper used in class) as found successful at Holy Grace School, Mala. Papers will be filed on reaching home.

4. This report was presented before the Commission on 15-10-2005 for consideration.

5. After hearing the parties concerned I am, prima-facie, of the view that these suggestions are welcome and feasible methods and as such the Education Department should take steps as far as possible to implement the same in a manner which will reduce the weight of the school bag which the school going children are carrying.

6. A preliminary order dated 18-10-2005 was prepared containing the above directions and proposed to be communicated to the Government. This was made at the sitting of the Commission held at Aluva. As the suggestions were welcomed by the public as reflected in the media, a copy was not sent to the Government.

7. I have considered the recommendation independently. Of the recommendations classified at para 1 (a), (b), (d), (e), (f) and (i) they are not issues which can be gone into by this Commission at this stage and it is more for the Educationists to decide after discussion with other academicians.

8. Hence, as an initial measure, the burden should not be much for the students of LKG and UKG sections as they are carrying now. Carrying of the school bags, as far as they are concerned, should be dispensed with. As far as the other classes are concerned the suggestion referred to above are recorded. Likewise, the suggestions in respect of Lower Primary and Upper Primary Classes and also High School Classes have also to be accepted with respect to the recommendations made in the report submitted by the Committee. Text Books and Note Books should be divided into three sections, each for a Term. That each Term, Text Book should be clubbed as one Volume. Likewise, the parts of Note Book for one Term should be clubbed as one Volume. It means, a student will have to carry only two Volumes. The weight of the bag materials should be drastically reduced. It should not be more than 250 grams to 300 grams as against 750 grams to 850 grams as now exists.

9. This order is being communicated to the Secretary to Government, General Education Department, Government of Kerala, as also the Director of Public Instructions, Thiruvananthapuram as required under Cl. 46 of the Kerala State Human Rights Commission Regulation 2001, to be communicated to all schools for implementation so as to see that undue burden is not caused to the children due to the weight of school bags they are carrying.

10. The Department concerned is free to communicate any suggestion or modification, if needed in this behalf, to the Commission which will then be considered, after notice to the concerned parties.

Dated, this the 15^th day of November, 2005 at Ernakulam.

Justice V.P.Mohan Kumar

Acting Chairperson

Before the Kerala State Human Rights Commission

at Trivandrum

Present : Hon’ble Mr.Justice V.P.Mohan Kumar

Chairperson

HRMP 2753 of 2005

In re: : Sri. K.A.Baburaj,

“Free Birds”,

Centre for Welfare of Street Children

Temple Lane,

Kozhikode.

and

State of Kerala represented by

The Chief Secretary

Order dated 5^th January, 2006

(1) The Malayala Manorama dated 17^th August, 2005, carried a photograph of two children seen digging worms from the Municipal drains in Kannur. The picture described that the children made a living by selling the earth worm they thus dug. Thereupon, the Kerala State Human Rights Commission initiated a suo-moto proceeding and registered the above said HRMP case.

(2) The Acting Chairperson of the Kerala State Human Rights Commission made enquiries regarding the photograph through the Kannur correspondent of the above said newspaper. It was informed that there is an organisation called ‘Free Birds’ associated with Centre for Welfare of Street Children at Calicut who are dealing with the issue. Thereafter, the Commission issued on 30-8-2005, a notice stating inter-alia as follows to them:

“I am enclosing herewith the photograph and the foot note thereto which are self explanatory. It is really unfortunate that two small children who are portrayed in the photograph have to dig out worms from the drains for making a living. This is not the age or time for a sibling like them to work in the gutters to make a living. There is a poignant tailpiece as well to the picture with reference to the said death of their sister Gayathri in a bus accident. The tragedies do not visit alone. Hence before something happens to these kids it is our responsibility to see that such neglected children are put in the gear and educated, whereby they can be useful citizen of tomorrow. A street child may ultimately turnout to be a criminal and an anti-social element.”

(3) To this notice, a reply was initially received from the Calicut office of the Organization on 19-9-2005. The reply stated as follows:

“On the subject stated of two street children at Kannur district regarding rehabilitation, Free Birds enquired this matter, met them and contact with their parents. They are living near the street on K.V.R Tower, Jail Road, Kannur. At present the four children are living with their father separated from mother because of family matters. We offer accommodation, education and other rehabilitation facilities for their better future. But their parents are not interested. We contact with the Street Children Rehabilitation Programme functioning at Kannur named “Dreams” and with the help of them we contacted the Town Circle Inspector of Police Mr. Santhosh and convince the situation of these children. Free Birds make all arrangements for their rehabilitation with the support o ‘Dreams’.”

(4) The above explanation offered was found unsatisfactory. Therefore, a further notice was issued to them on 30-9-2005. To this notice, the Association for Welfare of Handicapped set forth the story of the two children who were seen digging in the photograph. It was pointed out that they were two among the five children of a couple Vijayan and Kantha who were in Kannur and who had no regular employment or place of residence. Besides, they were addicted to alcohol. The family, it was stated, used to spend their nights in a portion of the thatched building on the sides of K.V.R Tower, Jail Road, Kannur. It was stated that a Unit of Association for Welfare of the Handicapped working in Kannur namely; ‘Dreams’ had been providing assistance to these children since 2003 in the manner of non-formal education, recreation and refreshment. Eventhough Vijayan knew plumbing, he was disinterested in seeking any employment and earning a regular income. And as such, they were leading a street life and did not have any regular family bondage. The eldest daughter started rag picking when she was four. Then the younger children also joined her. One of their daughter, Gayathri, met with a fatal accident on 16-3-2005 while she was walking along the road rag-picking. A claim petition for compensation made is pending before the Court. After the incident, the public intervened compelling them to leave the children in the hostel run by Free Birds. They did so initially on 4-4-2005. However, the eldest daughter Adisakthi who was addicted to Pan Masala, jumped the compound wall and ran away. She was no doubt, secured back to hostel.

(5) Later, the father of the children came to the Hostel on 9-4-2005 and took all the children under the pretext of, for conducting certain family religious rites at Coimbatore. But the children did not return to hostel however to continue as permanent residents. Now, the children are using the day care facilities. In view of circumstances that the parents were unwilling to leave the children in the custody of ‘Dreams’, no steps could be taken to control the vagrant habits of the parents or children.

(6) The above facts demonstrate a typical case of street children abandoned by negligent and indifferent parents and who do not have the security of a family life. After receiving this explanation, I desired to visit ‘Dreams’ at Kannur. I visited the premises on 24-10-2005. It was noticed that certain children were assembled in a hall and were being taught Malayalam. It is clear from the atmosphere that none of the child were in any manner interested in what is being taught. The life of street children must have been deeply rooted in them. They did not seem to be impressed with the utility of such an education. Perhaps the instructors themselves may not be in a position to make them interested either. I noticed that the authorities concerned were taking interest to safe guard the interest of the children who were attending the class. However, I did not see any enclosures to prevent a child who is there, escaping from the institution for good. They remain in the school only during the day time. This, according to me, may not serve any purpose. The children will only attend the classes during the day time and returns to the street thereafter. Smt. K.K.Shiny, a devoted officer working as co-ordinator with the Centre for Welfare of Street Children, Kozhikode who accompanied me told me that there is no facility for the inmates to stay. They can remain in the institution during the day time when it functions. That means, it is a recurrent winding and rewinding process. The good things that they may learn during the fore-noon is lost in the after-noon when they return to the street. It is rather unfortunate that other facilities are not made available in the premises to retain them during night fall as well.

(7) During the course of my visit, the Commission was informed that Free Birds is functioning with facility of a hostel accommodation for street children at Calicut.

(8) Hence, I visited the Free Birds at Calicut as well. This was done during the same month. I visited the premises of Free Birds. There is good attendance of children in the school. It was noticed that there was sufficient accommodation for running classes. The Institution has maintained the personal details of the children admitted. Total admission in the Institution is 324. Of them, at present, there are 38 school going children and all of them were classified as Street Children. In Free Birds hostel, there were 64 inmates staying in the Hostel.

(9) I went round the Hostel. But, it is unfortunate that the children have to exist with a bare minimum. The amenities given to them have to be increased. I am told, Rs.8/- is being paid by the Government per day per child as grant for their food. I feel this is hardly sufficient for their maintenance. At the present cost of living index, unless at least Rs. 15/- is paid per child per day, they may not be in a position to make a decent living.

(10) One factor we have to keep in mind is that, these children have been earlier leading an uncontrolled “free bird” life in the streets. That is, the life they were accustomed to, from the day of their birth. As they were street children, they would have been making a living to maintain themselves. This may be commensurate with their way of living. The amount, they earned would have been spent by them in the manner they liked. They thus enjoyed “freedom” and power of money since young age. When both of these are deprived and they are accommodated in a Hostel, such accommodation should be attractive. They should be educated to know that, the life of vagrancy in the street would ultimately end up in a life of misery. It ends up in crime and social vices and total ostracisation. They should be taught about culture and civic sense. They should learn that it makes all the difference by being a disciplined person and by avoiding a vagrancy life. The golden rule that crime does not pay should also be taught to them.

(11) Fundamentally, they should not be given any opportunity to remix with their old way of life and old associates. It means, the alternative life as an inmate of the hostel should be attractive to the child. The Hostel accommodation being provided either in a juvenile home or special home or observation home should be attractive and a whole time affair. If they are allowed to go back home after class hours, the chances are more likely that they will relapse into old association and would be attracted to lead old way of life. As such, the institution in Kannur requires total revamping. Either a hostel should be attached to the same or alternatively, the inmates should be shifted to the place where there is a hostel facility for such children.

(12) Perhaps, our Society is maintaining these children and institutions as necessary means to propagate the egos of certain people. They want such an institution to publicise the ostensible philanthropical attitude of these people. I have noticed, on the road side at several places, large hoardings of certain individuals surrounded by these unfortunate children. These men smile broadly as if enjoying the presence of young crowd whom they call as a separate category “the street children”. It is clear that, the poster is prepared by super imposing the portrait of these persons over a crowd of children who is classified as street children. The depressing aspect is that, why should these hapless children be displayed in such a manner as “Street Children”? No doubt, the children by unfortunate act of fate are compelled to lead a life of street children. If so, should they be treated as gadgets for publicity? Should a normal child be taught at the earliest formative stage, that the street child is a class below them, who deserve their help? These children have considerable amount of psychological limitation. They live with a feeling as the abandoned and under-previleged. We should not inflame their feeling further. It will cause considerable set back to their life and development. We are infact exploting their helplessness. Sympathy thus earned can only breed contempt. In fact, the act of display of hoarding of the picture of helpless children is an act coming within the definition of begging contained in Juvenile Justice (care and protection of children) Act, 2000 (herein after referred to as the Act).

(13) It is indeed an irony that none of these prominent well wishers have cared to notice the fact that only Rs. 8/- is being paid by the Government to meet the food expenses of a boarder residing in the home maintained by the Societies like “Free Birds”. Under the scheme formulated for street children by the Government of India, the grant in aid to be paid is Rs. 250/-(Vide Order No: 12/14 (04)2005-06 dated 13-9-2005) per month. But, though it is so, I am informed by the Hostel authorities that the actual grant is Rs. 135/- per month per child. I feel that this is hardly sufficient to make both ends meet.

(14) Here, an important aspect that is escaping the attention, how could an institution foot the bill once there is escalation of cost of food materials? It is very common that price escalation is a common feature. Such escalation would jeopardize the very existence of the children in such institution.

(15) In order to bring up healthy children who were leading the life of street children, as a first step, it is essential that their stay in the Hostel is comfortable and larger sum is disbursed to meet their day to day expenses. From the trophies displayed in the Office Room, it can be seen that there are talented children attending the school. By denying sufficient funds to exist, the talented is being denied an equal chance to promote their talent and the right guaranteed to them under Article 21 of the Constitution is infringed.

(16) It is to be remembered that most of them are coming from deprived background. They might have been living in abject poverty and misery. It was in such a background that they migrated to the life in an after care hostel. Sufficient food to live comfortably and social recognition would be the fundamental needs of these children. None of them should feel wanting in these basic requirements. The Hostel should be a real home for them than a disguised prison.

(17) It is scientifically proved that the street children grow with considerable amount of handicaps. The scientific study discloses that abused and neglected children have lower level of I.Q than that of the other children. Invariably, they develop a criminal tendency, to react violently against the Society from whom they imagine, they suffered humiliation. They grow with an inherent resistance for the society. It is essential that suitable measures are taken to see that they do not feel neglected and suffer the privation they did suffer as street children. Besides, they should not be subject matter of adverse publicity. The duty of the society is to see that these children live a healthy life along with the other members of society. Earnest attempt should be made to draw them into the main stream. In various decisions rendered by the Supreme Court and High Courts, several recommendations have been made to the authorities in this behalf. Considering various aspects, I make the following recommendations :

1. The children should be fed well and they should lead a contended life. I understand that as far as Juvenile Homes run by the State Government, a prescribed diet is supplied to inmates instead of paying any stipulated amount. This will set off variations of price of food cereals in the market. This practise should be followed in all places established under the Juvenile Justice Act.

2. There should be a police mechanism preventing the children roaming in the streets begging. Section 63 of the Juvenile Justice (Care and Protection of Children) Act 2000, should be implemented strictly in letter and spirit. The Government should have a separate group of trained Police Officers who will prevent the street children, begging in the streets and spending nights in the foot paths or streets.

3. Begging in the street by children or displaying children (be their own or kidnapped) should be banned and made an offence. Police should treat such conduct of the adult as an act coming within the purview of Section 23, 24, 25 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and steps should be taken as contemplated under Section 22 and 27 of the said Act.

4. The children being displayed in any manner, be it to earn contribution to any after care institution or to publicise the philanthropic disposition of a person, should be declared as an act coming within the purview of Section 2 (b) of the Juvenile Justice (Care and Protection of children) Act, 2000.

5. Whenever the authority constituted under Section 4 of the Act comes across or it is brought to their notice, that there exists a juvenile in conflict with law or otherwise neglected or abandoned, then they shall take steps forth with steps for the welfare of the juvenile as contemplated under the Act and in accordance with the decision of the Court of law.

6. The Government should establish accessible mechanism to the children to make confidential complaints regarding physical or sexual harassment or violence by other elders. It should also ensure that prompt and effective investigation of such complaints and prompt action be taken if the allegations are true.

7. The Government should provide compulsory education and training for teachers who teach in Institutions dealing with the street children.

8. The Government should implement measures to protect the safety of street children particularly girls.

9. The Government should take steps to address the root cause of child labour including providing of stipends on condition of school attendance to off set lost income from child labour.

10. The Government should guarantee primary education to street children and educate parents about the risk of hazardous labour and providing basic protection to orphans and other children.

11. The Government should enforce laws governing child labour and develop policies and programmes related to the Human Rights of child worker.

12. The children should not be wanting in the matter of food and shelter. As is being done in juvenile homes, a prescribed quantity of food cereals should be made available to the inmates of hostels referred to above. The State should meet the expenditure.

13. The Government should monitor the admission of each child in a Juvenile Home, Special Home and Observation Home. The Government should ascertain as to how the child performs after he leaves the institution. For this, while the children are in these Homes, they should be taught a craft, such as carpentry, plumbing, electrician, masonry etc. This will help them to support themselves, when they leave the institution after attaining the age of 18. They should be enabled to pursue a vocation in life.

14. It must be made compulsory that an admitee learns a trade while he is in Juvenile Home, Special Home or Observation Home. He should be made self-reliant, once leaves the institution.

15. There should be a Psychiatrist associated with every institution. He should observe and study the inmates. He should advise the authorities to take appropriate steps to rectify the short comings in an inmate.

I record my gratitude to the news paper “Malayala Manorama” for having highlighted the burning issue of Street Children. The Kannur correspondent Sri. M.P.Sukumaran deserves particular complements for having graphically portrayed the issue.

The above recommendation are being made in exercise of the powers conferred under Section 18 (5) of the Protection of Human Rights Act, 1993 and communicated to the Government as required under Regulation 46 of the Kerala State Human Rights Commission (Procedure) Regulation 2001. The State Government shall communicate its comment thereon within 30 days of the receipt of the recommendation.

Dated this the 5^th day of January, 2006.

Justice V.P.Mohan Kumar

Chairperson

Copy to:

1. The Chief Secretary,

Government of Kerala,

Government Secretariat,

Thiruvananthapuram.

2. Sri. M.P.Sukumaran,

Reporter,

Malayala Manorama,

P.B.No: 443,

Kannur – 670 002.

3. The Chief Editor,

Malayala Manorama,

Kottayam.

4. Sri. K.A.Baburaj,

“Free Birds”’

Centre for Welfare of Street Children,

Temple Lane,

Kozhikode.

5. Mr. K.P.Abdul Khader,

Assistant Information Officer,

Collectorate,

Kozhikode.

(a) On petitions and suo moto proceedings

During the year 2005-2006 the Commission made recommendations in 34 cases. During the period Commission recommended that compensation amounting to Rs.4,85,000/- be paid in 8 cases. Further, the Commission directed that disciplinary action be taken in 3 cases. In most of the cases Commission has given direction for implementation.

The Commission would like to reiterate that it is utmost importance that the Government respond promptly to the requests and recommendations made by the Commission. The Government is needed to act without delay on the recommendations of the Commission in respect of individual cases. The Act is based on the ground that the fullest cooperation will be extended by the Government to the Commission. It is therefore incumbent upon the Government to assist the Commission in its efforts to dispose of cases promptly and efficiently, in order to ensure that better protection of human rights, as envisaged under the Act is achieved.

During the period under report the Commission made a number of remarkable recommendations to the Government. In 34 cases, on petitions as well as on visits, Commission forwarded its recommendations to the Government. The summary of which are given below.

1. HRMP 1192/1999

Petitioner :Edavattom G.Vasavan,

Advocate

Respondent :State of Kerala

The allegation in the complaint is that one Satheeshkumar, S/o Sadasivan, Kollasseril House, Neendoor, Harippad was caused to death on 1.11.1999 by the culprits who are the illicit liquor sellers, in the presence of the police, who are duty bound to protect the life of every citizen. Late Satheesh Kumar was an active worker of Prohibition Movement at Harippad. The petition was filed by Advocate Edavattom G.Vasavan, on watching the news items.

Commission called for the report of the Superintendent of Police Alappuzha. Since the Commission felt that the SP’s report is unsatisfactory, the CIO attached to the Commission was requested to investigate the matter and file report. The father of the deceased and two others were examined on the side of the petitioner and Mohandas, one of the Police Constables who was on picket duty was examined as CPW1.

The report of the S.P as well as the CIO would show that on sustaining injuries Mr. Satheesh Kumar fell unconscious and the accused obstructed in taking the injured to the hospital for about 20 minutes and that the incident occurred only 150 meters away from the police picketing. So there is gross negligence and inaction on the part of the police. Consequently there is vicarious liability on the State.

Commission made the following:-

Recommendation

The State is requested to grant an interim relief of Rupees Two Lakh to the father and mother of the deceased Satheesh Kumar.

Action taken

The Government informed the Commission that complying with the request of the Commission sanction has been accorded for the payment of an amount of Rs.2,00,000/- to the father and mother of the deceased Satheesh Kumar towards interim relief.

* * *

2. HRMP 1355/1999

Petitioner : A. Pankajakshan Asari

Respondents : Dr. Jalaja,

Women and Children

Hospital, Thycaud,

Thiruvananthapuram.

The complaint is that petitioner’s daughter named Sindhu died on 4.11.1999 while being taken to SAT Hospital from Women and Children Hospital, Thycaud, Thiruvananthapuram due to carelessness and negligence on the part of the respondent, Dr. Jalaja of the latter referred hospital, under whom the deceased was treating in connection with pregnancy. On 1.11.1999 the deceased had met the respondent and the doctor found no complication and advised to come after one week. But on the next day night the patient suffered leakage of fluid and got admitted in the hospital. On 4.11.1999, hospital authorities informed that her condition is serious and referred her to the SAT hospital. But the patient died before reaching the SAT hospital.

Reports were called for from the hospitals and further the Commission directed the Chief Investigation Officer attached to the Commission to investigate and submit report. The C I O filed the report, which discloses no negligence on the part of the counter petitioner. It was further pointed out that symptoms found on the patient was the ‘Anaphylaxis’ which could be caused due to the presence of allergic chemicals, bacteria or fungus in the drip. The Commission made the following recommendations:-

1. Government shall pay an interim Relief of Rs.1,00,000/- to the dependants of the deceased.

2. Government may evolve an effective mechanism for purchasing of medicines and strengthen the Drug Control Unit of the state.

3. Introduce the ‘Periodic Check of medicines used in the Government Hospitals in the State.

(Hon’ble Acting Chairperson of the Commission declined to recommendation of awarding interim compensation.)

3. HRMP 2259/2000

Petitioner : Savithri

Respondent : Chief Secretary and another

The allegation in the petition is that the petitioner’s son Biju was falsely implicated as accused No.3 in Cr.No.103/95 of Thrikkunnapuha Police station by the Circle Inspector of Police Haripaad which was registered under section 120 (B), 364, 376, 302, 379,201 read with section 34 IPC and 3(1) r/w section 181 of MV Act. In connection with the said crime he was taken in to custody at 10.10 am on 25.6.95 along with four others. While under police custody, Biju was tortured by the police both mentally and physically. He was then produced before the J.F.M.C, Harippad and thereupon he was under judicial custody for 60 days. Thereafter he was released on bail. On account of the torture and erroneous action of police deceased Biju had suffered mental anguish and physical deprivation and he committed suicide on 19.6.2000. The case against Biju and others were reinvestigated by the Crime Branch of the State Police and found that Biju had not involved in the incident and he is innocent and removed from the list of accused on 25.7.1997. He was deleted from the array of accused by the Sessions Court only on 10.8.2000, i.e. after he committed suicide.

The petitioner specifically alleged that even after he was removed from the array of the accused by the Crime Branch, the Police personnel were threatening him that they will implicate Biju in false cases and they used to go to his residence and place of work and used to torture him. The petitioner lost her elder son, his love and affection, protection care etc. Even though the loss of her son cannot be compensated in terms of money, Commission made the following recommendations:

1. An amount of Rs. One Lakh is awarded as an interim relief to the petitioner.

2. Recommend Government job to any of the dependants of deceased Biju.

* * *

4. HRMP No.2280/2000

Petitioner : Eachen Antony

Respondent : Superintendent of Police

Alappuzha

One Eachen Antony filed this petition on the allegation that the police have not properly and fairly investigated the death of his son Tintu Paul aged 15, which occurred on 14.4.2000 while he was staying as a guest in the house of uncle of the mother of the deceased. In respect of the death of Tintu Crime No. 95/2000 was registered by the Mararikulam Police. After investigation the case was referred as drowning. As per the petitioner he bonafide believes that somebody murdered his son.

As per the direction of the Commission the Chief Investigation Officer of the Commission investigated the matter and reported that the death cannot be presumed as accidental, and proper investigation has not been conducted. As per the doctor who conducted postmortem, the cause of death of deceased is shown as drowning. But according to him it is not a case having all the associated features of a usual case of drowning. And it was revealed that the pond in which the dead body was found was not a pond but a ditch formed by removal of earth, which was very small in breadth and depth. There are other circumstances also there are which causes serious doubt regarding the death of Tintu, as accidental.

In such circumstances the Commission recommended the Government to reinvestigate the death of Tintu either by the Crime Branch or CBI

* * *

5. HRMP 1100/2001

Petitioner : Prinston

Respondents : Prabhakaran,S.I.of police

Police constables

S.P.Thrissur

DIG, Central Range, Thrissur

Petitioner’s complaint is that on 30.3.2001 at about 11.30 the Counter Petitioners came to his house and shouted with filthy words. When they enquired the matter the first respondent told about the assault suffered by one Shibu from the hands of the petitioner and others. Petitioner was taken into a jeep and since then he was assaulted by the counter petitioners brutally on his back of chest and other parts of the body. On seeing this mother fell unconscious. Counter Petitioners used abusive language against the other members of the family also. Petitioner was then taken to the police station and released on bail on31.3.2001. on release he made complaint to S.P. and DIG. He was then admitted to the Medical College, Thrissur and treated in the casualty. But proper treatment was denied at the instance Dr. Jayaraj, Deputy. Superintendent who is the uncle of Shibu. He got discharged and admitted in the Jubilee Hospital and treated there till 4.4.2001. No action was taken on his complaint to the S.P. and DIG.

Though summons was issued counter petitioners did not appear before the Commission. SP., Thrissur filed report. Since it was found not satisfactory, the CIO was requested to investigate and report. Mr. George, SP of the O/o the Chief Investigation Office filed report after enquiry.

Petitioner gave evidence in terms of the allegations in the petition. Relying on the report of the CIO, Hon’ble Justice Kumari A. Lekshmikutty found that the allegations in the petition are true and correct and made the following recommendations

a) Government shall give necessary direction to DGP to take disciplinary

action against Sri. V.V. Prabhakaran the then S.I. Police, Thrissur Town Police station and the then H.C.3302 Yohannan of the same police station.

b) Government shall pay an amount of Rs.5000/- as interim relief to the petitioner and recover the same from the CPs

* * *

6. HRMP. 3120/2001

Petitioner : Sathyan

Respondent : R.P.Raveendran. C.I.of Police, Mala

Kassim, Police Constable, Mala

Thomas Panickar

Dy.S.P. Irinjalakkuda.

The complaint is against illegal custody, torture and harassment suffered by the petitioner from the hands of the counter petitioners. Petitioner was taken into custody by the counter petitioners from his house at 2 am on 9.10.2001 and took him to different police stations and tortured and forced him to admit that he committed theft of idol from Iyranikulam temple at Mala.

Summons was issued to the respondents and they filed statements denying the allegations. The investigation was referred to the chief Investigation Officer who filed report. The report also reveals that the petitioner was taken to custody and taken to different police stations. The certificate of examination issued by te doctor also shows that the petitioner was in custody even at 4.30 pm 9.10.2001. Immediately after release from the police station he was having difficulty even to walk. He vomited twice and he was taken for treatment. On examination the doctors found that the lumbar spine of the petitioner showed painful spasam, tenderness over lumbar spine, right scapula, lower abdomen and finger which evidences that he was tortured by the counter petitioners. In these circumstances Hon’ble Justice Kumari A.Lekshmikutty disposed of the petition with following recommendations:

1. The Government shall recommend the D.G.P. to take deterrent disciplinary action against the counter petitioners.

2. The Government shall pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) as interim relief to the petitioners towards the expenses met by him for treatment and for mental agony suffered by him. The said amount shall be recovered from the counter petitioners equally.

* * *

7. HRMP.255/2002

Petitioner : Mohanan

Respondents : Shahul Hameed, C.I. of Police

& Vyasan Pillai, S.I of Police.

Petition was filed against fabrication of false crimes, harassment and torture made by the Counter petitioners. The second counter petitioner accompanied by a group of police constables came to the house of the petitioner and searched his house, took away the R/C book, pass book, documents etc. He proceeded to the police station along with his Advocate and got back the valuables taken from his house. But he was not permitted to go out from the police station. He was detained in the station till 3.30pm on the same day. As he was a patient of peptic ulcer and as he was remaining in the police station without any food or drink, he started vomiting. He was then hospitalised. On 31.8.2001 the first counter petitioner came to his house and taken him to Harippad Police station and detained there and falsely implicated as an accused in an Abkari case along with two others. Another case, Crime No.329/2001 under Abkari Act also was registered against him, after planting a few litres of spirit in a plastic container at his residence in the same night. He was then produced before the Magistrate and remanded to judicial custody.

The Chief Investigation Officer filed report which shows that the petitioner was falsely implicated as 3^rd accused in Crime No.328/2001 of Harippad Police station and the seizure of illicit liquor from the house of the petitioner in the night of 31.8.2001 also is a false story and the FIR in Crime No.329/2001 also is a fabricated document.

The Commission expressed that the police Officers are duty bound to protect the life, liberty and property of every citizen. They are not expected to fabricate false case against any citizen to wreak vengeance.

In the circumstances the Commission made the following:-

Recommendations

Disciplinary action may be taken against the Counter petitioners

i) A vigilance enquiry may be made regarding the allegation of demand of bribe.

ii) An amount of Rs.25,000/- each be recovered from the counter petitioners and pay to the petitioner for the mental agony suffered by him.

* * *

HRMP No.401/2002

Petitioner : K.Surendran

Respondent : G. Venu, S.I.of Police,

The Petition is filed against illegal detention and assault caused by the counter petitioner. The petitioner, a sub contractor under T.G. Pathrose, while supervising the cable work done by the labourers, the counter petitioner and other policemen alighted there in a private jeep and without disclosing anything beat him and kicked him indiscriminately and on sustaining the same he fell down. The counter petitioner and the other policemen took him into custody and put him on the platform of the jeep. On the way also he was brutally assaulted. After half an hour the police brought him back. He was admitted to the District hospital, and treated for several days.

Report of S.P.Kottayam was obtained wherein it is reported that the counter petitioner only warned the petitioner and not taken him in the custody.

On the side of the petitioner three witnesses were examined. All of them categorically sworn before the Commission that the petitioner was assaulted by the counter petitioner and his party without any provocation and took the petitioner in to the jeep and assaulted him. Documentary evidence also were produced by the petitioner.

After considering the evidence the Commission made the following recommendation:

“We recommend the Government to grant an interim relief of Rs.25,000/- to the petitioner.”

Action taken

The Principal Secretary to Government, Home Department in its letter No. 2157/J3/2006/Home dated 28.1.2006 informed that the petition from Sri.K.Surendran, forwarded along with the same, has been sent to the Director General Of Police, Thiruvananthapuram for enquiry and report.

* * *

10. HRMP 1188/2002

Petitioner : K.Babuji

Respondent : T.Vikram, ASP, Trissur.

The complaint is that the petitioner, who is an M.sc. student and Secretary of ABVP of Trissur city , while he was sitting in the office of the RSS, was caught hold by the respondent and pulled him from the chair and drew him against the wall. The ASP fisted him on his chest and kicked him on his abdomen without disclosing anything and took him to the police station along with others in the office. Police showered filthy language against them. The petitioner and other were kept in the lock up till 2 am and released due to the intervention of the superior police officers. The petitioner was admitted in the Aswini Hospital Thrissur and treated as inpatient. On the information the police went to the hospital but his statement was not recorded.

Counter petitioner denied the allegations. As per his statement on 27.4.2002 evening he got information that a group of RSS workers had taken out a torch light procession, armed with sticks and torches, to his camp office. When they reached in front of his house they had raised very provocative and threatening slogans against him and threatened to attack his camp office where his wife and children were staying. The S.I.of Police Thrissur Town west informed that he has arrested 9 persons who had participated in the procession and registered a case and further informed that the RSS leaders who instigated the march were hiding in the RSS Karyalayam at Kottappuram. The respondent accompanied the SI and police party to the said RSS Karyalayam and found petitioner there. He was taken to the Police station. On questioning it was revealed that he has not involved in the case and he was set off. Neither the counter petitioner nor the any other policemen assaulted or misbehaved with the petitioner.

Next day the police got information that the petitioner has got admitted into the hospital alleging police assault. One Head Constable was sent to the hospital for recording statement. But the petitioner refused to give statement.

On considering the evidence the Commission found that on 28.4.2002 the petitioner was admitted and treated in the hospital. The information given to the doctor was assault by the police. In Ext.C. no external injury was noted. But the doctor noted pain over the lower abdomen and chest. The patient was not able to pass urine. Bladder is distended. These injuries correspond to the physical assault alleged to be committed by the counter petitioner and his party. In the circumstances Commission recommended the Government as follows:-

We recommend the Government to conduct a detailed investigation in respect of the incident, which occurred on 27.4.2002 in the office of the Rashtriya Swayam Sevak Sangh.

Action taken

Government through its letter No.1892/J2/06/Home dated 7.2.06 informed the Commission that the petition has been forwarded to the Director General Of Police, for report.

* * *

12. HRMP 1763/2003

Petitioner : Vijayan

Respondent : Secretary, Annmnada Grama

Panchayat

DMO, Thrissur

District Collector, Thrissur

PCB, Thrissur.

The petition is against the pollution problems caused due to the functioning of an unauthorized Diary Farm at Alathur village, Annamnada Grama Panchayat, being conducted by one Shaniba W/o Abdul Azeez. The nearby paddy fields were filled with sand and started the diary farm without obtaining permission from the authorities concerned. Even though notices were issued from the Health Department to stop the diary farm, it was not complied with. The diary farm is being conducted in most unhygienic manner which is hazardous to human life, contaminate drinking water and causing environmental problems.

Reports from Respondents 1,2 and 4 were obtained. Which would show that the allegations in the petition are true and correct. It is further reported that complaint of the petitioner was considered and necessary directions were given to the owner of the diary farm. Even though it was agreed by the owner, she did not take any remedial measures. The report of the Medical Officer, P.H.Center, Mumbra revealed that no treatment plant was constructed and the use of cow dung and urine as manure to their feeding grass contaminate the water in the well in the locality and hence the functioning of the farm was temporarily ordered to be stopped. Against the said order the owner preferred appeal before the Panchayat Committee, which is pending.

The Pollution Control Board filed expert opinion and remarked that the allegations are found genuine and correct.

The second respondent DMO (Health) filed report stating that the Diary Farm in question was started without prior sanction from Health authorities and concerned authorities. The water in the nearby canal is contaminated. Proper sanitary arrangements or wastewater disposal techniques were not implemented, and no proper drainage system was implemented in the farm.

So the authorities are in unequivocal terms comment that the allegations against pollution problem is true and correct. The conduct of diary farm is a threat to life, health and environment and without prior sanction of the authorities.

In the said circumstances the Commission made the following recommendation:

We recommend the Government of Kerala to take immediate steps to stop the Diary Farm, which causes threat to life, health and environmental problem, and direct the owner, if she wants to conduct any diary farm it must be as per law without causing any nuisance to the residents of the locality.

Action taken

Government in its letter No.1467/G1/2006/H&FWD dated 25.2.2006 informed the Commission that necessary instructions have been given to the Member Secretary, Kerala State Pollution Control Board to initiate steps to close down the diary farm in question.

* * *

16. HRMP 36/2005

Petitioner : Suo Moto

Respondents : Secretary, Agriculture Dept

Secretary, Water Resources Dept

District Collector, Tvpm.

As it was noticed by the Commission that the Government have passed an order permitting paddy cultivation at Vellayani Lake after pumping out the drinking water from the lake, a suo moto case was initiated. The Commission visited various plots of the lake on 12.1.2005 after due intimation stipulated under the Act.

On 27.1.2005 the Commission summoned the Secretaries of the concerned Panchayaths. They produced the copy of G.O(Rt) No. 1947/04/AD dated 16.12.2004 which permits the parties to conduct paddy cultivation at Vellayani lake and other relevant documents. After hearing the Commission directed the Government to keep the above said G.O. in abeyance until further orders. Commission also appointed an expert committee to study the matter and submit report.

The expert report was submitted on 31.10.2005, which made out forcefully the need to maintain the Vellayani Lake as a fresh water lake capable of providing water supply not only to the adjoining Panchayaths but also catering for the future requirements of water when Vizhinjam Harbour becomes a reality. The report also projected the danger of encroachments, sand mining taking place on large scale, discharging waste toxicides into the lake and the dangers of reclamation in adversely affecting the water level.

According the expert report the Commission made the following recommendations for implementation :-

1. The Government may conduct an early survey through Revenue Authorities and demarcate the Government Property and private land in Kayal area. The people who have encroached upon the lake area should be evicted, as they are all illegal occupants.

2. The farmers who possess legal revenue punja lands within the lake should be given compensation and the entire lake should be acquired by the Government. Special financial assistance from the central Govt. should be sought for this special purpose.

3. Government may constitute a committee for the protection of the lake headed by District Collector, Thiruvananthapuram. Revenue, Police and Water Recourses departments’ officials may be included in the panel for reviewing the situation twice in a year. The entire area once protected must be under surveillance of the Government.

4. Government may initiate steps to conduct a vigilance enquiry into the allotment of patta in the Vellayani Lake and adjacent properties.

5. Specified boards to give warning not to deposit any waste into lake shall be fixed all along the boundaries of the lake. Restrictions may be imposed in adjoining areas with regard to the use of chemical fertilizers, pesticides and insecticides. Fresh water fisheries may be encouraged to improve

6. The Government may take urgent steps to request the Ministry of

Environment and Forest, Government of India to take immediate action to conserve Vellayani Lake as a wetland of national and international importance.

7. In the light of these above observations G.O (Rt) No.1947/04/GAD dated

16.12.04 is infructous and dewatering shall be prevented permanently.

* * *

19. HRMP 877/2005

Petitioner : Treesa

Respondents : M.D. ,

Kerala Ceramics, Kundara

Divisional Manager .LIC Office

Manager, LIC, Kollam.

The petition was against the non-payment of LIC policy coverage due to the death of petitioner’s son Pradeepkumar, employee of Kerala Ceramics Ltd., Kundara. The petitioner’s husband was an employee of the company and died in 1999. Her only son Pradeepkumar joined in service of the company under the provisions of Dying–in-harness in 2000. He subscribed a policy No.781610344 of LIC under the scheme of Salary Savings for 1,00,000/-. The company was crediting the policy premium from the salary of Pradeepkumar every month. He died on 16.11.2003, while in service. After his death the petitioner approached the LIC for release of policy amount. But she was informed that the policy was in lapsed condition from28.1.2003 due to the non-payment of premium. Revival of policy is possible only during the lifetime of the policyholder.

The first respondent submitted before the Commission that the company was remitting the monthly premium regularly till 6/2003. Thereafter the company became sick and was unable to find means even for its subsistence.

The Commission does not view the action of non-remittance of the insurance premium in time, as proper one. It is a lapse on the part of the officials including the Senior Officers of the first respondent.

In the circumstances the Commission directed that the Kerala Ceramics Company Officials take immediate steps to make available the insurance claims to the eligible persons forthwith. At the same time, they are also free to take action to negotiate with the LIC to get the said amount.

. . .

21. HRMP 2500/2005

Petitioner : M.J.Cleetus

The grievance of the petitioner and others is that one Maniyan has trespassed into the puramboke land lying on the northern side of Kothkulangara Girijan Colony used by the public for the ingress and egress to their property and the road. Maniyan has obstructed the public pathway by planting plantains and other plants.

Report of the Tahsildar, Cherthala obtained that shows that there was a public path way used by the public for time immemorial. But the above said path way was destroyed by Maniyan and he is taking hasty steps to get assignment of the said puramboke.

Hon’ble Member Justice A. Lekshmikutty considered the matter and made the following:-

Recommendation:

“ Hence the Commission recommend the Government, if at all puramboke land is available for assignment, path way already in existence which was subsequently destroyed by Maniyan S/o Krishnan, Kothakulangara Girijan Colony may be restored and remaining portion if any may be assigned to him and necessary direction may be given to the Tahsildar, Cherthala regarding the same.”

Action taken

Government in its letter No.1101/A2/05/RD dated 20.12.05 informed the Commission that the District Collector Alappuzha has been directed to implement the recommendation of the Commission.

* * * *

24. HRMP 3033/2005

Petitioner : Joy. T.,

Baby Vilasam, East Kallada

Respondent :

The complaint of the petitioner, who is casual labourer, is that on 15.9.2005 he fell down from his bicycle and sustained injuries around his left eye. He was taken to the District Hospital, Kollam. The doctor in charge of the casualty sutured the wounds and sent him back. He could not sleep due to bleeding and pain. Next day he consulted the Ophthalmology doctor in the District Hospital Kollam. On examination it was found that he could not close his eye due to the stitches put by Dr. Anilkumar on the previous day.

On his complaint to the DMO, he was insisted to remove stitches and to continue the treatment. But the Doctor of Ophthalmology referred the Medical College, Thiruvananthapuram.

Report of the Superintendent was obtained. Along with the report he sent a copy of the enquiry report also. It was clear from the report that the petitioner could not close his eye after suturing. So it can be gathered that the suturing was not done properly.

In the circumstances Hon’ble Member Justice A.Lekshmikutty passed an order recommending that the State shall pay an amount of Rs.5000/- to the petitioner as interim relief.

* * * *

(a) ON VISITS CONDUCTED BY THE COMMISSION

In fulfillment of the statutory responsibility entrusted to the Commission under section 12(c) of the Act, during the year under report Commission made regular visits to several hospitals, jails and the like institutions wherein people are kept.

The Commission visited at Central Prison, Kannur, Special Sub jail Alappuzha, Sub Jail Ernakulam, Sub Jail Mavelikkara, Sub Jail, Pathanamthitta, Mental Health Centre Trissur, Taluk Hospital Harippad, Taluk Hospital Neyyattinkara, Taluk Hospital Kottarakkara, Govt. Hospital Varkala, Social Welfare Complex at Thavanur in Malappuram, Shelters provided for the Tsunami victims, Sub jail Kozhikode, Open jail, Nettukaltheri, Taluk hospital Cherthala etc.

. . .

28. Special Sub Jail, Alappuzha

Hon’ble Acting Chairperson Justice V.P.MohanKumar and Hon’ble Member Justice A.Lekshmikutty visited the Special Sub Jail, Alappuzha on 4^th July, 2005.

During visit the prisoners made several complaints about the poor quality of food supplied, lack of light and fan etc. Further they have complained that they are forced to lay on floor even in rainy season. Commission noted with displeasure that old fans are seen fixed on the wall of the cells but not working.

In the circumstances the Commission made the following recommendations to the Government:

1. The electrical maintenance work may be done urgently so that the prisoners shall use fans and get light.

2. The quality of food supplied may be improved.

3. Each prisoner may be provided with a mat.

29. Sub Jail, Mavelikkara

Hon’ble Justice A. Lekshmikutty made a visit at Sub Jail, Mavelikkara in Alappuzha District on 26.10. 2005 with a view to inspect the living conditions of the prisoners kept therein. The Commission found overcrowding in the cells that lead to poor living conditions prisoners. The Commission made the following recommendations to the Government:-

1. Government may take steps to reopen the female block, which is kept closed in the Mavelikkara Sub Jail after making necessary repair work to ensure security and creating necessary posts.

2. Daily bata of the prisoners be raised as Rs.25/- instead of Rs.18/-

3. The staff strength be increased proportionate to the number of

prisoners.

30. Sub Jail, Pathanamthitta

Hon’ Member Justice A. Lekshmikutty visited the Sub Jail, Pathanamthitta on 21.1.2006. It is the only one jail in the district. The Superintendent complained about the shortage of staff and overcrowding of prisoners and so that every month about 30 prisoners will be shifted to Central Prison, Thiruvananthapuram due to lack of space. It was noted that the main gate was completely damaged. The Superintendent requested for the Uplift of the Jail as a Special Sub Jail.

The Commission made the following recommendations:-

1. Take urgent steps to complete the construction in the Sub Jail.

2. Take immediate steps to replace the main gate of the Sub Jail.

3. Take necessary steps for the maintenance of the female block.

4. Take necessary steps to uplift the present Sub Jail as a Special Sub jail.

31. Taluk Headquarters Hospital, Harippad

On 22.11.2005 Hon’ble Justice A. Lekshmikutty, the member of the Commission visited at the Taluk Headquarters Hospital, Harippad in Alappuzha district and found that the conditions of the hospital are not satisfactory and hence made the following recommendations to the Government :-

1. Urgent steps be taken to shift the medical, casualty, pharmacy, mortuary, gynic, operation theatre etc. to the newly constructed building and supply of electricity.

2. Necessary cots, beds and sheets be provided to the hospital.

3. Immediate steps be taken for purchase of freezer and supply of electricity to the mortuary.

4. All the vacancies of the doctors and nurses be filled and necessary quarters be provided for the doctors and nurses.

32. HRMP No: 2245/05

Visit at Taluk Hospital, Kottarakkara

On 9.2.05 Hon’ble Member Prof. S. Varghese visited ‘Taluk Head quarter Hospital Kottarakara’. Report of the Commission dated 5.8.05 together with following recommendations is forwarded to Government.

1. Steps should be taken to fill up the vacant posts of all the posts.

2. If a trauma care units allowed to the hospital, further proceedings in the matter should be expedited.

3. A post specialist in skin and mental health may be created and fill up at the earliest.

4. One more refrigerator should be allotted to the blood bank of the hospital for facilitating it to raise the storage capacity.

5. One post of driver should be created and ambulance may be provided to the hospital.

6. Quarters facility should be provided to the doctors.

7. Canteen facility should be provided in the hospital.

8. Steps should be taken to open a ‘neethi’ medical store within the premises of the hospital.

9. Postoperative ward should be established.

10. An incinerator should be installed in the hospital compound for disposal of waste.

11. A post of doctor may be created in the casualty wing.

33. HRMP No: 2246 of 2005

Visit at Taluk Hospital, Neyyattinkara

On 14.12.04 Hon’ble Member Prof. S. Varghese visited ‘Government Taluk Hospital Neyyattinkara’. Report of the Commission dated 6.8.05 together with following recommendations is forwarded to Government.

1. Bed strength of the hospital should be enhanced.

2. An efficient system of disposal of waste material should be introduced. The incinerator should be repaired and utilized on contract basis.

3. All the vacant posts in the hospital should be filled up immediately.

4. Maintenance, rewiring and painting should be done properly to old buildings including Government pay wards and KHRWS pay wards.

5. The old T.B building should be demolished and a new multi-storied building should be constructed.

6. Drainage system and surface drainage system should be modified.

7. Mortuary should be constructed with modern facilities.

8. Separate rooms for Ultrasound scanning and dental X–ray should be provided.

9. Staff Quarters for medical officers and staff nurse should be constructed.

10. A compound wall should be constructed covering all sides of the hospital.

11. Gynecology Department should be expanded with a Theatre Unit and modified labour room.

34. Visit at Primary Health Centre, Perumon

HRMP 2110/04

The office bearers of Melakalakendram, Perumon and some other local people of Perumon filed a complaint before the Hon’ Commission urging to start over the I.P.section in the Primary Health Centre, Perumon. The petition is registered as HRMP 2110/2004 and on the request of the petitioners Hon’ Member of the Commission Justice Kumari A.Lakshmikutty made a visit at the hospital. Prior notice was given to the Government.

The main issue raised in the petition is that I.P. wing should be started in the hospital, considering the number of patients approaching the hospital and the building facilities available therein. The Medical Officers and the DMO conceded to the request of the local people. The District Medical Officer and the medical officers of the hospital collectively said that they have written many times to the Government for favourable action. But, there was no response. Now the PHC is having sufficient Buildings to start IP, but staff is insufficient. For starting IP, service of on call doctor should be made available. Further, service of paramedical staff and security staff also has to be made available. It is submitted that at least one post each of Nursing Assistant Grade II, Nursing Assistant

Grade I, Staff Nurse and Medical Officer are to be sanctioned and be filled by the Government.

Commission made following recommendations to the Government :-

1. The Government may take urgent steps to re-start the I.P. in the Primary Health Centre, Perumon, Kollam District by appointing sufficient medical officer, paramedical staff, nurses and Security staff.

2. The proposal of the District Medical officer, Kollam submitted before the Director of Health Services for converting the Primary Health Centre, Perumon as a Community Health Centre may be considered favourably and urgent steps may be taken.

Apart from the above stated visits at the hospitals and jails the Commission made inspections at various police stations in the state also. The inspections made by the Commission to the police stations in the State were in accordance with the directions of the Hon’ Supreme Court to oversee and monitor whether the 11requirements laid down by the Court in D.K.Basu Vs State of West Bengal (1997(1) SCC416 were being carried out or not by the police stations and also to take all further steps to ensure that those requirements were met.

. . .

CHAPTER V

GOVERMENT’S RESPONSE TO THE COMMISSION’S

RECOMMENDATIONS

HRMP 313/99

Government in its letter No. 34796/F2/04/ID dated 25.10.05 informed that the promoters of M/s Nisha Cements has taken steps to minimise sound pollution and air pollution. They have replaced worn out parts of plant and machinery and the sound/noise level has been brought to a minimum and the unit has started functioning. Also informed that a final report on this matter will be furnished soon.

HRMP 418/99

Government in its letter No.31298/D1/05/Home dated 13.7.05 has informed that report is still due from the Commissioner of Police, Thiruvananthapuram City. On receipt of the same it will be furnished.

HRMP No.1192/99

Government informed that as per Government per G.O (Rt)

Nos.2674/05/Home & 2906/05/Home dated 26.10.05 & 23.11.05 respectively informed that sanction has been accorded for the payment of an amount of Rs.2,00,000/- to the father and mother of the deceased Satheeshkumar towards interim relief as recommended by the Kerala State Human Rights Commission.

HRMP 2907/01

Vide letter No.D6-97395/03 dated 29.4.05 received from Police Headquarters informed by the Superintendent of Police, Thrissur that the investigation of the case in Crime No.653/01 u/s 324 IPC of Kunnamkulam Police Station had already been completed and charge sheeted before the Judicial First Class Magistrate Court, Kunnamkulam on 23.08.04.

HRMP 401/02

The Principal Secretary to Government, Home (J) Department in their letter No.2157/J3/2006/Home dated 28.1.06 informed that the petition from Sri. K. Surendran, forwarded along with the same, has been sent to the Director General of Police, Thiruvananthapuram for urgent enquiry and report.

HRMP 1188/02

Government vide their letter No.1892/J2/06/Home dated 7.2.06 informed the Commission that they are forwarded the petition to the Director General of Police, for report. On receipt of the same it will be forwarded to you.

HRMP 1425/02

Vide Government letter No.47335/H3/2005/Home dated 2.11.05 informed that Government have examined the matter in detail as recommended by the Kerala State Human Rights Commission, Government Ordered an Oral Enquiry against Shri. S. Joseph, Sub Inspector of Police (Traffic) Edappally for perfunctory discharge of the duties entrusted to him and for concocting documents under Rule 6 of the KP DIP & A Rules 1958. The Director General of Police will suggest a suitable officer to conduct the above enquiry.

HRMP 1763/03

Government in its letter No.1467/G1/2006/H&FWD dated 25.2.06 informed that necessary instructions have been given to the Member Secretary, Kerala State Pollution Control Board to initiate steps to close down the dairy farm in question.

HRMP 2317/03

The Secretary, Enmakaje Grama Panchayat, Perla vide his letter No.D/172/02 dated 2.1.06 informed that the Pollution Control Board has issued permission to run the factory and now they have issued closure order to the alleged lime factory. The Panchayat has not issued licence to the factory. Panchayat shall issue only after fulfilling the necessary conditions as per existing rules.

HRMP 2500/05

Government in its letter No.110101/A2/05/RD dated 20.12.05 informed that the District Collector, Alappuzha has been directed to implement the recommendation of the Human Resource Commission.

HRMP 3863/05

Government in its letter No.9100/J2/2006/Home dated 21.2.06 informed the Commission that the Director General of Police has been directed to furnish the report including action taken or proposed to be taken on the order of the Commission on HRMP – 3683/05. A report in this matter will be furnished to you on receipt of the same from the Director General of Police.

Research Programmes

The Statute requires the Commission to undertake and promote research in the field of human rights (Section 12(g) of the Act).

Commission provides all kinds of facilities for the students doing research work on the subject Human rights and connected matters. They can make use of the materials kept in the library of the Commission and can have discussion with the Acting Chairperson or the Members on their subject of research.