Search operations- basic human rights must be protected.

[C.A. DEV KUMAR KOTHARI]

References and links:

The Protection of Human Rights Act, 1993

National Human  Rights Commission (Procedure) Regulation, 1994.

 Chief Commissioner of Income Tax (CCA), Patna and others Vs. The State Of Bihar, The Bihar Human Rights Commission

Rajendran Chingaravelu Vs. R.K. Mishra, Addl. CIT & Ors, reported in (2010) 1 SCC 457,

doctrine of Coram non-judice which speaks about inherent or complete lack of jurisdiction

 Hiralal Patni Vs Srikalinath, reported in A.I.R. 1962 SC 199

Official Trustee West Bengal & Ors Vs Sachindranath Chatterjee & anr, reported in A.I.R. 1969 SC 823

Pooran Mal Vs. Director of Inspection (Inv), reported in 1973 -TMI - 6422 - (SUPREME Court)

M.P. Sharma Vs. Satish Chandra

Charter of human values and dignity.

Ireland Vs the United Kingdom, reported in (1978) ECHR 1

Kalashnikov Vs Russia, reported in (2002) ECHR 596.

Salmouni Vs France, reported in (2000) 29 EHRR 403

The International Covenant on Civil and Political Rights

The Universal Declaration of Human Right

Basic human needs:

In day to day life  even during working hours necessary food , rest (sleep in case working is extended over day and night)  and attending to natural calls of human being are fundamental needs.  Based on these natural needs, one has fundamental human rights to get these. Without adequate rest including sleep, one cannot work for long duration of hours and days. This need to be kept in mind by employers as well as officers who conduct search in premises of public, though in some public interest. Even in jails, the jail authorities are supposed to afford  these facilities even to criminals undergoing sentence.

  Torture:

Not affording chances or opportunity to meet such  basic human needs can be considered a sort of torture.

Searches by tax authorities:

Searches by tax authorities can extend to several days in case circumstances so require. There is no bar to extend the period of search in case of need. Therefore, depriving of  essential human needs, to   assessee and his officers and staff who help in extending co-operation to search authorities can be considered as violation of human rights.

From recent decision of Patna High court against order of The Bihar Human Rights Commission:

On complaint of Shri Rajendra Singh (one of  assessee searched by Income Tax Department),  before The Bihar Human Rights Commission,  learned Commission has held that there has been violation of human rights of Shri Rajendra Singh,(complainant before Commission  and respondent no.3 before the High Court),  by the concerned officials of the Income Tax  Department, while continuing search and seizure operation, for which he would be entitled to monetary compensation and has further asked the department to submit its response as to why the monetary compensation be not awarded to the applicant recoverable from the salary of the concerned officials of the department.

The Income Tax Department filed a Writ Petition (WP) before Patna High Court against the order dated 28.4.2011 passed by the Chairperson, Bihar Human Rights Commission.

From the complaint of Rajendra Singh before the Commission:

   Complainant submitted that  during the search and seizure operation the raiding party committed various acts of omission and commission including violation of his human rights. broad features of the complaint are as follows:

i) The officials of the Income Tax Department confined them in their house for two days in course of search and seizure operation in their business and residential premises almost uninterruptedly.

ii) The search team confined his family members and did not allow him to cook food, thereby compelling them to purchase the same from outside.

iii) The members of the search team misbehaved, abused and tortured respondent no.3 and his family members.

iv) The members of the search team used methods of coercion for recording statements and obtaining signatures forcibly.

v) The members of the search team hurt the religious sentiments of the Sikh community by throwing buts of used cigarettes on the photograph of Golden temple and Sikh Guru

vi) The members of the search team stole two Mobile Phones before leaving the premises.

Proceedings before Commission and order of Commission:

1. On complaint the Commission issued show cause notice to the Income Tax Department to reply to the allegations of  Rajendra Singh ,
2. The department filed its reply and report on 25.11.2010 and 3.2.2011.
3. The Commission made observations and came to a finding as follows:

(i)                  that there was continuous interrogation without a break for more than 36 hours commencing at 9.30 A.M. on 8.9.2010 and the first break was given only at 3.30 A.M. on 10.9.2010 forcing the applicant and his family members to remain awake at hours which was meant for sleeping.

(ii)               The continuous interrogation at odd hours in night is a torturous act being violative of basic human rights of an individual.

(iii)                 The Commission broadly agreed that the department if need be may conduct such search and seizure operation for days together but then they have to stop the same at proper time and resume again at an appropriate time in the morning.

(iv)                  The Commission observed that the search and seizure operation have to be carried out keeping in view the basic human rights of an individual as every individual has inherent human rights which ought not to be infringed upon.

Aggrieved from the  order of the Commission, the petitioners (Income Tax Department)   preferred  writ petition mainly on the following  grounds:

i) The order of the learned Single Member is without jurisdiction being Coram non-judice. In short, in absence of any rules and regulations prepared by the State or the Commission, the order could have been passed only by all the three members sitting together and not by an individual member.

ii) The complainant had not come to this court with clean hands as he had filed a complaint before the NHRC, National Commission of Minorities and the criminal case being Jakkanpur P.S. Case no.246 of 2010.

iii) The Commission ought not to have heard the matter as the department had preferred Cr. Misc. No.43811 of 2010 for quashing of the F.I.R. and the criminal case itself being sub-judice before the Chief Judicial Magistrate, Patna.

iv) The Commission ought not to have held the concerned  officials of the Income Tax guilty of violating human rights without affording an opportunity of hearing them personally under section 16 of the Protection of Human Rights Act, 1993 (hereinafter referred to as „the Act, 1993‟).

v) The officer had acted in good faith and in discharge of their official duty.

vi) The Commission erred in holding that the complainant was not given sufficient break as it was not possible for one officer to keep interrogating for 42 hours. Furthermore, the search and seizure manual permitted continuous interrogation.

Observation of author on the grounds of IT Department:

On reading of the above grounds, it is clear that the IT Department has mainly tried to make out their case more on technical aspects rather than on facts and circumstances. This shows that on factual aspects their case was weak. These technical grounds were almost rejected by the High Court except in relation to compensation payable individually by search officers because Commission had not issued notice in that regard to concerned officers. Thus , appeal by way of WP was dismissed except on ground of personal compensatiation. 

There was situation like torture leading to violation of human rights:

In deciding the WP the honorable judge confirmed finding of the Commission that there was violation of human rights. The observations and order are analyzed below:

1. Even assuming that there were temporary breaks in course of interrogation which continued for 42 hours, it is not in dispute that even on the second night of search and survey on 10.9.2010, the interrogations continued till 3 A.M. and the respondent no.3 and his family members were made to remain awake when it was time for sleep.
2. Any reason has not  been shown as to why it was necessary to continue the interrogations till deep in the second night of interrogations.
3. The case relied by the  department in the case of Rajendran Chingaravelu (supra) would not be of much help, as in the aforesaid case the petitioner was detained for 15 hours on the first day itself, as he was carrying Rs.60 lacs at the Airport which could have been used for the illegal activities.
4.  In the present  case, the interrogation have continued for 42 hours and undisputedly at the odd hours of second night also,
5. Such extended interrogation could  have easily have been avoided and deferred.
6.  No reason has been recorded for not deferring the interrogation till morning.
7.   The judge expressed agreement with the submissions of the  IT department that if required, the search and seizure can continue for days but  judge felt and held that at the same time due regard to human dignity and value cannot be ignored.
8. In the present case, no reason has been assigned as to why it was absolutely imperative to continue with the interrogations at 3 A.M. on 10.9.2010, when search and seizure has commenced on 8.9.2010 at 9.30 A.M.
9. Judge felt and held that “even if I agree with the submissions of petitioners that there were breaks and there were no continuous interrogation for 36 hours as held by Commission, still the department has no plausible excuse for  making interrogations till odd hours of second night till 3 A.M.
10. The judge thus partially affirm the order of learned Commission holding the Income Tax department guilty of violating human rights to the extent indicated in paras 18 and 22 of the order.

Let us hope for better:

In view of this judgment, let us hope that the income Tax Department and for that matter any other government authorities also  acting in similar situations will in future act in such manner that the public detained, interrogated or visited in course of raids will be treated in more human manner. The judgment is silent on some of issues raised by the complainant, but those are also ground reality particularly forcing parties to admit undisclosed income or turnover etc. Presumably these issues will be raised by the complainant in proceedings under the income-tax Act. Threatening by tax authorities to tax payers about attachments of accounts, closing down of business, levying of penalties, causing survey and search etc. are very common arm twisting tactics and harassment practices as felt by public.  

The judgment  of Patna High Court is reproduced below with  necessary high lights (except those discussed in article herein above):