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2026 DAILYLAW 10558 (GAU)

Tsufuchu And Ors. S/o T. Yeteli v. Union of India

2026-05-19

Yarenjungla Longkumer

body2026
JUDGEMENT AND ORDER : YARENJUNGLA LONGKUMER, J. The instant writ petition has been filed by the 3 (three) petitioners with the following prayers:- i) to direct the Respondents that 1(one) family member of each petitioner no. 1,2 and 3 be given employment in the government service within the State or Central Department. ii) Pass an order of monetary amends as a mode of redressal by ordering the Respondents to pay compensation amount of Rs.50 lakhs (Rupees fifty lakhs) each in favour of petitioner No. 1 and 2 who are the biological brothers of deceased Aso and Tüzali for flagrant infringement of Article 21, 14 and 15 of the Constitution; for depriving them of their right to life and for failing to secure their rights by the Respondents keeping in mind the mental trauma and irreparable loss incurred to the family consequent upon their unjustified killing. iii) Pass an order of monetary amends as a mode of redressal by ordering the Respondents to pay compensation amount of Rs.50 lakhs (Rupees fifty lakhs) in favour of petitioner No.3 for the permanent injury inflicted upon her and for preventing her from enjoying her fundamental rights under Article 14, 15, 19 and 21 guaranteed by the Constitution due to the act of omission and commission by the Respondents. 2. The facts of the instant case is that on 15.07.2015, a patrolling unit of 12 Para Commandoes (SF) and 46 Assam Rifles was engaged in a shootout with NSCN (K), one of the insurgency groups in Nagaland. This incident took place in Avangkhu Village, Meluri Sub-Division, Phek District. In the shootout two (2) cadres of the NSCN-(K) were killed one of them being from Wuzu village. On the next date i.e., 16.07.2015 the villagers of Wuzu village gathered at Wuzu village to request Major Surinder Singh of the 46 Assam Rifles to handover the mortal remains of one of the slain NSCN (K) cadre who hailed from their village in order to give him a proper burial as per the customary practices of the Nagas. 3. While the villagers were pleading with Major Surinder Singh, a blank fire was fired by the occupant of the Gypsy vehicle of the Army convoy which was immediately followed by indiscriminate firing upon the innocent villagers by the occupants of the fourth and fifth vehicles in the Convoy of the 46 Assam Rifles /12 Para Commandos(SF). 3. While the villagers were pleading with Major Surinder Singh, a blank fire was fired by the occupant of the Gypsy vehicle of the Army convoy which was immediately followed by indiscriminate firing upon the innocent villagers by the occupants of the fourth and fifth vehicles in the Convoy of the 46 Assam Rifles /12 Para Commandos(SF). The spot where the firing took place was outside the residence of one Shri Yichuli. The firing lasted for 20 minutes and the convoy fled away thereafter towards their camp at Akhegwo. 4. In the indiscriminate firing by the 46 Assam Rifles and 12 Para Commandos (SF), under the Respondent Nos. 1, 2, 5, 6 and 8, Miss Aso, aged 13 years, and Mr. Tüzali, aged 14 years were killed and the petitioner No. 3 was injured in her right arm. 5. The petitioner Nos. 1 and 2 are the brothers of the two (2) children, Ms Aso, aged 13 years, and Mr. Tüzali, aged 14 years who were killed and the petitioner No. 3 is a survivor of the incident who has been permanently disabled for life as the injuries sustained from the bullets caused permanent injury. 6. Heard learned counsel for the petitioners Ms. Neiteo Koza, Mr. Yangerwati, learned CGC for respondents 1, 2, 5, 6 & 8 and Mr. L.T. Sangtam learned Addl AG for the respondents 3, 4, and 7. 7. It is submitted by the learned counsel for the petitioner that the 2 (two) Children who were killed, were outstanding students, and obedient and sincere children. However, their lives have been cut short by the arbitrary firing and unjustified killing by the Assam Rifle Forces and 12 Para Commandos (SF), under the Respondent Nos. 1, 2, 5, 6 and 8. The petitioner No. 3 hails from a poor economic background and due to the permanent injury caused by the bullet firing she is now unable to work in the field nor carry out her daily chores. She has incurred huge financial expenses for medical treatment. Moreover, the little resources she had got exhausted during the course of the medical treatment. 8. Learned counsel for the petitioner submits that the Naga Students’ Federation and Naga Hoho have conducted fact-finding exercises and their reports are annexed in the writ petition. 9. She has incurred huge financial expenses for medical treatment. Moreover, the little resources she had got exhausted during the course of the medical treatment. 8. Learned counsel for the petitioner submits that the Naga Students’ Federation and Naga Hoho have conducted fact-finding exercises and their reports are annexed in the writ petition. 9. It is also stated by the petitioner that a judicial inquiry commission was constituted by the Government of Nagaland vide Notification dated 13 th November, 2015 appointing a Single Member Commission of Shri Veprasa Nyekha (Retd) District & Sessions Judge. The report of the Judicial Commission dated 6 th May 2019 has been placed before this Court. 10. During the hearing the learned counsel for the petitioners has fairly stated that petitioner’s Nos. 1 and 2 have already received Rs. 5 (five) Lakhs each as ex gratia compensation from the Government of Nagaland. The petitioner No. 3 has also received an amount of Rs. 2 (two) Lakhs as ex-gratia compensation from the Government of Nagaland for the injuries sustained by her. The counsel for the petitioner has also produced a copy of the order passed by the National Human Rights Commission on 19.05.2023, wherein, the Commission has recommended an amount of Rs. 2 (two) Lakhs each as compensation to the next of kin of each of the 2(two) deceased children. No compensation was recommended for the injured person/petitioner no.3 by the NHRC. Learned counsel therefore prays that this Court may award appropriate and just compensation as deemed fit and proper by taking into account the amount already received as ex-gratia. 11. The respondent Nos. 1, 2, 5, 6 and 8 have filed their affidavit-in-opposition. By filing the affidavit, the respondents have stated that a complaint has already been submitted to the National Human Rights Commission by the Naga Mothers Association with regard to the instant case. It is also stated that the Government of Nagaland has also granted Monetary compensation of Rs. 5 Lakhs each to the family of the deceased children and Rs. 2 Lakhs to the injured Miss Esther/Petitioner No. 3. However, the petitioner has not brought this fact to the notice of this court and therefore, the writ petition should be dismissed on this ground alone. 12. Learned CGC, Mr. 5 Lakhs each to the family of the deceased children and Rs. 2 Lakhs to the injured Miss Esther/Petitioner No. 3. However, the petitioner has not brought this fact to the notice of this court and therefore, the writ petition should be dismissed on this ground alone. 12. Learned CGC, Mr. Yangerwati has also submitted that there is an alternative remedy of approaching the appropriate Civil Court for damages and without availing the alternative remedy, the petitioner cannot be permitted to invoke the writ jurisdiction of this Court. Learned CGC also submits that the petitioners have been already paid compensation by the State government as well as by the National Human Rights Commission and therefore, the instant petition deserves to be dismissed due to concealment of material facts. However, none of the respondents have disputed the fact regarding the death of the two children on 16.07.2015 or the injury caused to the petitioner no.3 on 16.07.2015 nor the findings in the Judicial Commission Report. 13. This Court has perused the fact-finding reports as well as the Judicial Enquiry Commission Report. The Judicial Enquiry Commission Report reveals that the Army Personnel did not exercise restraint and did not act as a disciplined and trained body of troops. The statement of the witnesses corroborated with each other to prove that the jawans from the advance party started firing and that was followed by firing by the jawans from Major Surinder Singh’s vehicle and the last vehicle in the convoy. All the witnesses did not dispute that 2 (two) children were killed in the exchange of fire and one Smti. Esther suffered injuries. The conclusion arrived at by the Judicial Enquiry Commission is as follows: - “32.1 Upon conspectus of the entire evidence, including the written pleadings and oral evidence of the witnesses, the Commission has come to a conclusion that the fact of firing upon the villagers at Wuzu on 16th July, 2015 by the jawans of Assam Rifles and Para commandos is a fact. There is also no dispute that the two persons killed by the Security Forces near the ITC at Avangkhu/Phokungri were insurgents and cadres of banned NSCN (K) insurgent organization. The core issue before this Commission is as to what prompted the jawans to fire upon the villagers at Wuzu, while carrying the dead bodies of dead insurgents. There is also no dispute that the two persons killed by the Security Forces near the ITC at Avangkhu/Phokungri were insurgents and cadres of banned NSCN (K) insurgent organization. The core issue before this Commission is as to what prompted the jawans to fire upon the villagers at Wuzu, while carrying the dead bodies of dead insurgents. 32.2 Apparently, the Security Forces have also not taken any plea that the deceased children and the injured lady were the victims of the alleged firing by the insurgents. Hence, there can be no two conclusions that the jawans of 46 Assam Rifles and 12 PARA Commandos convoy were solely responsible for causing casualty and damages to household properties of the civilians. Any firing under the initial shock and panic was certainly unjustified and indefensible. 32.3 Soldiers are taught to fire only on specific targets and the theory of "ek goli, ek dushman" is drummed to a soldier till retirement and this theory appears to have been given a complete go-by in as much as IMI empty cases (5.56mm), 82 Nos. of IMI live round (5.56 mm), 3 Nos. of AK-47 empty cases, 40 Nos. of INSAS empty cases were seized from the Place of Occurrence but not a single insurgent could be killed, injured or apprehended at Wuzu village. 32.4 The command and control are being imparted to all commissioned officers, JCOs and even NCOs to exercise adequate command and control over their men, but in this particular case command and control had completely broken down as would be evident from the quantum and nature of firing. When VCC/eyewitnesses stated that they saw that one jawan covered half face aimed at Mrs. Vitsürho. To me it seems that the convoy personnel, including the officers and JCOs acted in the most irresponsible manner. They perhaps thought that it was time to teach the Pochury Nagas a lesson that wouldn't be easily forgotten. Firing was accompanied by cold blooded murder of two innocent minors, injury to a woman and damage of 3 (three) houses. 32.5 I have analysed and evaluated the evidences of the civilian witnesses, Army witnesses and State Government witnesses namely Pitu Thurr, Mrs. Vitsurho, Esther, Plainchu, S. Teti, Nyupuli, Saul, D.Maghazu, Chilli, Y.Azah, Yichitu, Rafu, Solomon, Pichu and D. Tarali. Firing was accompanied by cold blooded murder of two innocent minors, injury to a woman and damage of 3 (three) houses. 32.5 I have analysed and evaluated the evidences of the civilian witnesses, Army witnesses and State Government witnesses namely Pitu Thurr, Mrs. Vitsurho, Esther, Plainchu, S. Teti, Nyupuli, Saul, D.Maghazu, Chilli, Y.Azah, Yichitu, Rafu, Solomon, Pichu and D. Tarali. I have no hesitation in finding that the 46 AR and 12 PARA convoy personnel on that day had resorted to indiscriminate, unnecessary and uncontrolled firing under the imaginary apprehension that NSCN(K) had opened fire at them and on that imagination they had killed innocent civilians in the cold blooded manner and also damaged dwelling houses. 32.6 I have perused the Affidavits of 17 civilian independent witnesses and also crossed examined them to which all affirmed that it was due to the blank firing by the advance convoy starting first from the Gypsy vehicle was immediately followed by panic firing by the occupants of 4th and 5th vehicle which were commanded by Major Surender Singh and Captain Abhishek Singh respectively resulting to the killing of two minors. The Commander of 46 AR, 'C' Coy Major Surender Singh should have at least enquired from the occupants of Gypsy whether they were attacked by insurgents (NSCN-K cadres). But he failed to enquire from the commander of that Gypsy vehicle and did not restrain his jawans who were sitting in his vehicle and opened fire upon the innocent waiting villagers. 32.7 I do not see merit in the Affidavits of Assam Rifles and 12 PARA commandos (SF) for indiscriminate firing purportedly under the garb of self defence. The indiscriminate firing upon the innocent children and Mrs. Vitsurho, who had no criminal antecedent, cannot be approved by the Commission.” 14. 32.7 I do not see merit in the Affidavits of Assam Rifles and 12 PARA commandos (SF) for indiscriminate firing purportedly under the garb of self defence. The indiscriminate firing upon the innocent children and Mrs. Vitsurho, who had no criminal antecedent, cannot be approved by the Commission.” 14. Upon consideration of the facts and circumstances and on consideration of the submissions of the learned counsel for the parties and the Judicial Enquiry Commission Report, this Court is of the view that the incident was not an accidental firing but it was due to the irresponsible behavior and unjustified firing by the personnel of 46 Assam Rifles and 12 para commandos (SF) commanded by Major Surender Singh and Captain Abhishek Singh which led to the killing of the 2 (two) minors and the injury to the petitioner no.3 and hence the Court is of the view that the petitioners have to be compensated for the loss of the lives of the two children and the injuries caused to petitioner 3. 15. In the case of D.K. Basu Vs. State of West Bengal reported in ( 1997) 1 SCC 416 , the Hon’ble Apex Court held that the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of public service. Public law proceedings serve a different purpose from the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law. Grant of compensation in a proceeding under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21 is an exercise of the courts under Public Law Jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. The Hon’ble Supreme Court held that: “54. The Hon’ble Supreme Court held that: “54. Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit”. 16. Also in the case of M.C. Mehta and Another Vs. Union of India and Others reported in ( 1987) 1 SCC 395 , a Constitution bench of the Supreme Court established the legal doctrine of absolute liability for industries and companies engaged in hazardous activities. 16. Also in the case of M.C. Mehta and Another Vs. Union of India and Others reported in ( 1987) 1 SCC 395 , a Constitution bench of the Supreme Court established the legal doctrine of absolute liability for industries and companies engaged in hazardous activities. The court ruled that companies involved in dangerous industries have an absolute duty to ensure safety and compensation must be paid to the victims; the court further went on to say that the power of the court to grant remedial relief in cases where fundamental rights have been violated, would include the award of compensation in appropriate cases. The court held that ordinarily a writ petition cannot be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of the civil court. It is only in exceptional cases that compensation maybe awarded in a writ petition. The Supreme Court accordingly held that: “7. We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32”. 17. In the case of Nilabati Behera Alias Lalita Behera Vs. State of Orissa and Others in ( 1993) 2 SCC 746 , the Hon’ble Supreme Court was of the view that the liability of the State of Orissa to pay compensation could not be doubted. The Supreme Court also spelled out the principles as regards the liability of the State for payment of compensation as opposed to the liability in private law for payment of compensation in an action tort. The Supreme Court also spelled out the principles as regards the liability of the State for payment of compensation as opposed to the liability in private law for payment of compensation in an action tort. It was observed that the award of compensation in a proceeding under Article 32 or Article 226 of the Constitution of India is a remedy available in public law, based on strict liability for contravention of fundamental right to which the principle of sovereign immunity does not apply, even though it maybe available as a defense in private law in an action based on tort. The Hon’ble Supreme Court in Nilabati Behera (supra) held that :- “17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah' and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 20. This is what was indicated in Rudul Sah' and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have- nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. 22. The above discussion indicates the principles on which the court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimize the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah¹ and others in that line have to be understood and Kasturilal distinguished therefrom. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimize the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah¹ and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.” 18. A Division Bench of this Court in WP(C)/206/2020 through a judgment dated 28.02.2023 had also awarded a compensation of Rs. 10 Lakhs to the petitioner in a similar case. 19. From the discussion above and the aforementioned authorities, it can be seen that the Hon’ble Supreme Court or the High Court in exercise of power under Article 32 and Article 226 of the Constitution of India is competent to award compensation in cases where the fundamental rights guaranteed in the Constitution of India have been infringed by the state authorities. It is to be noted that in the aforementioned decisions, the Hon’ble Supreme Court has laid down the principles on the general issues relating to the liabilities of the State to pay compensation in the cases of violation of fundamental rights. The law is therefore well settled that compensation awarded for violation of Article 21 is a public law remedy, distinct from ex gratia payments, which are discretionary and administrative in nature and also distinct from NHRC recommendations, which are recommendary though persuasive. These payments do not bar the writ court from granting compensation in fit cases. At best, they can influence the quantum of compensation and not the entitlement. 20. In view of the above discussion, the present writ petition is disposed of with a direction to the respondent Nos. 1, 2, 5, 6 and 8 to pay compensation of Rs. 3 (three) Lakhs each to the petitioner Nos. 1 and 2 and Rs. At best, they can influence the quantum of compensation and not the entitlement. 20. In view of the above discussion, the present writ petition is disposed of with a direction to the respondent Nos. 1, 2, 5, 6 and 8 to pay compensation of Rs. 3 (three) Lakhs each to the petitioner Nos. 1 and 2 and Rs. 5 (five) Lakhs to the petitioner No. 3 within a period of 6 (six) months from the date of receipt of a copy of this order. 21. The petitioners are also at liberty to approach the appropriate civil court for redressal of their grievances towards payment of damages. 22. The writ petition is disposed of accordingly. 23. No orders as to cost.