Extra Judicial Execution Victim Families Assn. vs Union of India

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 129 OF 2012

Extra Judl. Exec. Victim Families Assn. & Anr. ….Petitioners

versus Union of India & Ors. ...Respondents

WITH WRIT PETITION (C) NO. 445 OF 2012

JUDGMENT

Madan B. Lokur, J.

1. In the present petitions, the allegation was that 1528 persons had been

killed in fake encounters by police personnel and personnel in uniform of the

armed forces of the Union. By our judgment and order dated 8 th July, 20161

we respectfully followed the view laid down by a Constitution Bench of this

Court in Naga People’s Movement of Human Rights v. Union of India.2

The Constitution Bench held that an allegation of use of excessive force or

retaliatory force by uniformed personnel resulting in the death of any person Signature Not Verified Digitally signed by necessitates a thorough enquiry into the incident. We were of opinion that SANJAY KUMAR Date: 2017.07.14 13:34:20 IST Reason:

1 (2016) 14 SCC 578 (2) 2 (1998) 2 SCC 109

W.P. (Crl.) No. 129 of 2012 etc. Page 1 of 26 even the ‘Dos and Don’ts’ and the ‘Ten Commandments’ of the Chief of

Army Staff believe in this ethos and accept this principle. However, after

considering the submissions at law, we found that the documentation was

inadequate to immediately order any inquiry into the allegations made by the

petitioners and therefore directed them to complete the documentation

indicating whether the allegations were based on any judicial enquiry or an

enquiry conducted by the National Human Rights Commission or an enquiry

conducted under the Commissions of Inquiry Act, 1952.

2. A tabular statement has since been filed by learned counsel for the

petitioners and this statement has been accepted by learned Amicus and no

objection was raised by the Union of India or by the State of Manipur. We

therefore proceed on the basis of the tabular statement before us.

3. The petitioners have been able to gather information with regard to

655 deaths out of 1528 alleged in the writ petitions. The break-up is as

follows:

Sl. No. PARTICULARS No. of cases 1. Commission of Inquiry cases 35 2. Judicial Inquiry and High 37 Court cases 3. NHRC cases 23 4. Cases with written complaint 170 5. Cases with oral complaint 78 6. Cases with eye witnesses 134 7. Family claimed cases 178

W.P. (Crl.) No. 129 of 2012 etc. Page 2 of 26 Total number 655

4. We have perused the tabular statement given with regard to cases with

written complaints, oral complaints and eye-witness accounts as well as

family claimed cases but find that apart from a simple allegation being

made, no substantive steps appear to have been taken by either lodging a

First Information Report (FIR) or by filing a writ petition in the concerned

High Court or making a complaint to the National Human Rights

Commission (NHRC). The allegations being very general in nature, we do

not think it appropriate to pass any direction for the time being in regard to

the cases concerning these written complaints, oral complaints, cases with

eye-witness accounts and family claimed cases. It is not that every single

allegation must necessarily be inquired into. It must be remembered that we

are not dealing with individual cases but a systemic or institutional response

relating to constitutional criminal law.

Deaths investigated by Commissions of Inquiry

5. With regard to 35 deaths dealt with in reports given by Commissions

constituted under the Commissions of Inquiry Act, 1952 we find that two of

the deaths: in respect of L.D. Rengtuiwan and N. Sanjita Devi were not

mentioned in the writ petition. We pass no orders in respect of these two

cases.

W.P. (Crl.) No. 129 of 2012 etc. Page 3 of 26

6. As far as the death of Thangjam Manorama is concerned, the issues

are pending in this Court in Civil Appeal Nos. 65-69 of 2015 and therefore

we make no comment in this regard.

7. As far as the remaining 32 deceased victims are concerned, we find

that independent Commissions of Inquiry have made adverse comments

against personnel of the Manipur Police and the Central Reserve Police force

(as the case may be) for the use of excessive force or retaliatory force. In

our opinion, more than a prima facie case is made out for lodging an FIR in

the appropriate police station in respect of the death of these 32 persons. We

direct the registration of FIRs in these cases. The details of ‘Commissions

of Inquiry Cases’ are given below in Table-I.

COMMISSIONS OF INQUIRY CASES

Sl.No. NAME OF VICTIM NOTIFICATION UNIT (Total = 35) DATE

1. L. D. Rengtuiwan 16.03.2005 Not in WP

2. Thangjam Manorama ? Pending in SC

3. N. Sanjita Devi 06.12.2003 Not in WP 4 to 14. Amom Rajan Meitei and 10 04.07.2001 CRPF others 15 to 19. Major Shimareingam ? Manipur Police Shaiza and 4 others 20 to 21. Thoudam Munindro Singh 27.12.1996 Manipur Police and another

22. Oinam Ongbi Amina Devi 06.04.1996 CRPF 23 to 35. Angom Raghumani Singh 15.06.1985 CRPF and 12 others TABLE-I

W.P. (Crl.) No. 129 of 2012 etc. Page 4 of 26 Deaths considered by Judicial Inquiries and High Court

8. With regard to the ‘Judicial Inquiry and High Court cases’ the Gauhati

High Court had entertained writ petitions into allegations of the death of as

many as 37 persons in fake encounters through the use of excessive or

retaliatory force and in some cases ordered a judicial enquiry.

9. Two writ petitions are still pending in the High Court and we request

Hon’ble the Chief Justice of the concerned High Court (whether it is the

Gauhati High Court or the Manipur High Court) to expeditiously dispose of

the writ petitions if they have not already been disposed of.

10. One writ petition [W.P. (Criminal) No.103 of 2009] has been

dismissed meaning thereby that the High Court found no substance in the

allegations made and therefore this case may be treated as closed.

11. There is no specific information with regard to two other writ

petitions and we leave it to the investigating team that we propose to appoint

to ascertain the correct factual position.

12. With regard to the remaining writ petitions, the High Court has

awarded compensation to the next of kin of the deceased meaning thereby

that more than a prima facie case has been found of a fake encounter or the

use of excessive or retaliatory force contrary to the decision of the

W.P. (Crl.) No. 129 of 2012 etc. Page 5 of 26 Constitution Bench of this Court. We direct the registration of FIRs in these

cases. The details of these writ petitions are given below in Table – II.

JUDICIAL INQUIRY & HIGH COURT CASES

S. No. NAME OF VICTIM CASE NO. RESULT UNIT (TOTAL= 37) 1to 3. Moirantem Ibungo + W.P. (C) No. 92 Pending Manipur 2 others of 2013 Police, Assam Rifles 4. Athokpam W.P. (Crl.) No. Compensation Manipur Angousana Meitei 108 of 2011 awarded Police 5. Leishangthem W.P. (Crl.) No. Compensation Manipur Santosh 40 of 2009 awarded Police 6. Sorensangbam W.P. (Crl.) No. Dismissed Manipur Sanayaima 103 of 2009 Police 7. Ningthoujam W.P. (C) No. 75 Compensation BSF Thokchao Singh of 2008 awarded 8. Ningthoujam Binoy W.P. (Crl.) No. Compensation Manipur alias Khaiba Singh 25 of 2009 awarded Police 9. Sagolsem Vikram W.P. (Crl.) No. Compensation Assam Singh 5 of 2007 awarded Rifles 10. Pheiroijam Keshorjit W.P. (Crl.) No. Compensation Assam 2 of 2006 awarded Rifles 11to 12. Sanasam Ngongo + 1 W.P. (C) Nos. Compensation 21 PARA other 1201 and 1205 awarded of 2005 13. Pharoijam Sanajit W.P. (Crl.) No. Compensation Rajput 2 of 2005 and awarded Rifles W.P. (Crl.) No. 16 of 2012 14 to 17. Seikholun Baite + 3 W.P. (C) No. Compensation CRPF others 752 of 2010 awarded and W.P. (C) No. 663 of 2007 18 to 27. Kshetrimayum W.P. (C) No. Compensation Assam Inaocha + 9 others 1268 of 2002 awarded Rifles 28. R.K. Lakshana alias W.P. No. 10 of Compensation Manipur

W.P. (Crl.) No. 129 of 2012 etc. Page 6 of 26 Beto 2010 (Ref: W.P. awarded (but Police (C) No. 1986 of not yet paid) 2001) 29. Ramaso Shingnaisui W.P. No. 591 of Compensation Assam 1999 awarded Rifles 30. Md. Zakir W.P. (C) No. Compensation CRPF 114 of 1999 awarded 31 to 32. Seram Priyokumar + W.P. (C) No. Pending Assam 1 other 840 of 2014 Rifles 33. Khudrakpam W.P. (Crl.) No. Compensation Assam Tejkumar 3 of 2005 awarded Rifles 34. Asem Romajit W.P. (C) No. ? CRPF 646 of 2007 35. Yumnam Robita W.P. (C.) No. ? CRPF 647 of 2007 36. Kangujam Ojit Reported as Compensation Indian 1999 Cri. L. J. awarded Army 3584 37. Naorem First Revision Compensation Manipur Krishnamohon Singh Appeal No. 3 of awarded Police 2009 TABLE- II

Deaths inquired into by the NHRC

13. As many as 20 deaths were reported to the NHRC as a result of fake

encounters or the use of excessive or retaliatory force. Of them, 7 complaints

are pending before the NHRC. We request the NHRC to take a decision on

these complaints as soon as possible.

14. There is no specific information with regard to two complaints and we

leave it to the investigating team to ascertain from the NHRC the result of

these complaints.

W.P. (Crl.) No. 129 of 2012 etc. Page 7 of 26

15. In the remaining complaints, the NHRC has awarded compensation to

the next of kin of the deceased meaning thereby that there is more than a

prima facie case of a fake encounter or the use of excessive or retaliatory

force. We direct the registration of FIRs in respect of these complaints.

16. The details of the complaints in which a reference has been made to

the NHRC are given below in Table-III.

NHRC CASES

S. No. NAME OF VICTIM RESULT UNIT (TOTAL= 23) 1. Md. Zamir Khan Compensation Imphal West Police awarded Commando 2 to 3. Md. Ishaque Ali + 1 Compensation Imphal East and West other awarded Police Commando 4. Hawaibam Amujao Pending Assam Rifles 5 to 6. Oinam Ananda alias Pending Assam Rifles Girani Meitei + 1 other 7. Longjam Dhamen Pending Imphal East and West Police Commando 8. Wahengbam Jayenta Pending Imphal West Police Commando 9. Sorem Ranjit Singh Compensation Imphal East Police alias Rojit awarded Commando 10. Wahengbam Compensation BSF Manglemba Singh awarded 11. Ningthoujam ? Manipur Police Premkumar Commando 12. Thokchom Somorjit Pending Manipur Police Commando, Maratha Light Infantry 13 to 14. Kshetrimayum Govind Pending Imphal West Police + 1 other Commando, Maratha Light Infantry 15. Thangjam Anil Compensation Imphal West and East

W.P. (Crl.) No. 129 of 2012 etc. Page 8 of 26 recommended, but Police Commando, not yet received. Sikh Regiment 16. Irengbam Ratankumar Compensation Imphal West Police recommended, but Commando not yet received. 17. Laishram Ranbir alias Compensation Imphal West Police Eshel awarded Commando 18. Laishram Lincoln alias Pending Imphal West Police Nicolson Commando 19. Thokchom Ranjit Compensation Imphal East Police awarded Commando 20 to 23. Khular Prakash ? BSF Lamkang + 3 others TABLE - III

Inquiry by Justice Santosh Hegde Commission

17. It may be recalled that six cases were earlier considered by a

Commission headed by Justice Santosh Hegde (a retired judge of this

Court) and which finds mention in our earlier orders. There is no doubt that

in these cases also an FIR must be lodged and after due investigations,

further steps need to be taken in accordance with law. We direct the

registration of FIRs in these cases also.

Submissions and consideration

18. It was submitted by the learned Attorney General that some of the

incidents are of considerable vintage and at this point of time it may not be

appropriate to re-open the issues for investigation. We are not in agreement

with the learned Attorney General. If a crime has been committed, a crime

W.P. (Crl.) No. 129 of 2012 etc. Page 9 of 26 which involves the death of a person who is possibly innocent, it cannot be

over-looked only because of a lapse of time. What is also not acceptable is

that the law having been laid down by the Constitution Bench, it was the

obligation of the State to have suo motu conducted a thorough inquiry at the

appropriate time and soon after each incident took place. Merely because the

State has not taken any action and has allowed time to go by, it cannot take

advantage of the delay to scuttle an inquiry.

19. It was also submitted by the learned Attorney General that there were

local pressures and the ground level situation was such that it would not be

surprising if the inquiries were biased in favour of the citizens and against

the State. This is only a submission which is noted and rejected. If there

had been a break-down of the rule of law in the State of Manipur, surely the

Government of India was under an obligation to take appropriate steps. To

suggest that all the inquiries were unfair and motivated is casting very

serious aspersions on the independence of the authorities in Manipur at that

point of time, which we do not think is at all warranted.

20. It was also submitted that in many instances the next of kin of the

deceased had not approached this Court and there is no reason why we

should entertain a petition filed by a third party. Since the next of the kin

had themselves given a quietus to the incidents, there is really no occasion

W.P. (Crl.) No. 129 of 2012 etc. Page 10 of 26 for this Court to take up the issue at the instance of a third party. We reject

this submission as well.

21. Access to justice is certainly a human right and it has been given a

special place in our constitutional scheme where free legal aid and advice is

provided to a large number of people in the country. The primary reason is

that for many of the deprived sections of society, access to justice is only a

dream. To provide access to justice to every citizen and to make it

meaningful, this Court has evolved its public interest jurisprudence where

even letter-petitions are entertained in appropriate cases. The history of

public interest litigation over the years has settled that the deprived sections

of society and the downtrodden such as bonded labourers, trafficked women,

homeless persons, victims of natural disasters and others can knock on the

doors of our constitutional courts and pray for justice. This is precisely what

has happened in the present petitions where the next of kin could not access

justice even in the local courts and the petitioners have taken up their cause

in public interest. Our constitutional jurisprudence does not permit us to

shut the door on such persons and our constitutional obligation requires us to

give justice and succour to the next of kin of the deceased.

22. It was finally submitted by the learned Attorney General that

compensation has been paid to the next of kin for the unfortunate deaths and

W.P. (Crl.) No. 129 of 2012 etc. Page 11 of 26 therefore it may be not necessary to proceed further in the matter. We

cannot agree. Compensation has been awarded to the next of kin for the

agony they have suffered and to enable them to immediately tide over their

loss and for their rehabilitation. This cannot override the law of the land,

otherwise all heinous crimes would get settled through payment of monetary

compensation. Our constitutional jurisprudence does not permit this and we

certainly cannot encourage or countenance such a view.

Special Investigation Team

23. As far as the appointment of a Special Investigating Team is

concerned (which we have adverted to above), it was suggested to us that

officers of the Manipur Police may be associated. We do not think it

appropriate to associate any officer of the Manipur Police particularly since

in some of the cases the role of the Manipur Police itself has been adversely

commented upon.

24. In Bharati Tamang v. Union of India & Ors. 3 this Court held that to

ensure that criminal prosecution is carried on without any deficiency a

special team can be constituted under the orders of this Court. Consequently,

we have no hesitation in directing the constitution of a Special Investigating

Team to investigate the cases that we have mentioned above. It is interesting

to note at this stage that we were informed that in none of the cases has an 3 (2013) 15 SCC 578

W.P. (Crl.) No. 129 of 2012 etc. Page 12 of 26 FIR been registered against the Manipur Police or any uniformed personnel

of the armed forces of the Union. On the contrary, FIRs have been

registered against the deceased for alleged violations of the law. Under these

circumstances, it would be inappropriate for us to depend upon the Manipur

Police to carry out an impartial investigation more particularly when some

of its own personnel are said to be involved in the fake encounters and the

Manipur Police has not registered any FIR at the instance of the next of the

kin of the deceased.

25. In R.S. Sodhi v. State of U.P.4 this Court observed as follows:-

“…We think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them.”

It is in view of the above that the more appropriate course of action would be

to appoint an independent investigating team to examine the cases

mentioned above.

26. Having considered the issues in their entirety, we are of opinion that it

would be appropriate if the Central Bureau of Investigation (or the CBI) is

required to look into these fake encounters or use of excessive or retaliatory

4 (1994) Supp. 1 SCC 143

W.P. (Crl.) No. 129 of 2012 etc. Page 13 of 26 force. Accordingly, the Director of the CBI is directed to nominate a group

of five officers to go through the records of the cases mentioned in the three

tables given above, lodge necessary FIRs and to complete the investigations

into the same by 31st December, 2017 and prepare charge sheets, wherever

necessary. The entire groundwork has already been done either by the

Commissions of Inquiry or by a Judicial Inquiry or by the Gauhati or

Manipur High Court or by the NHRC. We leave it to the Special

Investigating Team to utilize the material already gathered, in accordance

with law. We expect the State of Manipur to extend full cooperation and

assistance to the Special Investigating Team. We also expect the Union of

India to render full assistance to the Special Investigating Team to complete

the investigation at the earliest without any unnecessary hindrances or

obstacles. The Director of the CBI will nominate the team and inform us of

its composition within two weeks.

NHRC – a toothless tiger

27. We have also heard Mr. Gopal Subramanium, Senior Advocate on

behalf of the NHRC with regard to some issues on the basis of which it was

earlier pleaded before us that the NHRC is nothing but a toothless tiger.

28. There is no doubt that the rule of law has been placed on a pedestal

ever since the time of Aristotle. More recently Dicey has also expounded on

W.P. (Crl.) No. 129 of 2012 etc. Page 14 of 26 the constituents of the rule of law and it is now expected that all modern

democratic jurisdictions accept the rule of law as the guiding light and a

shield available to the people against arbitrary executive action. As far as

we are concerned, the rule of law has also been accepted as a part of the

basic structure of our constitutional jurisprudence. Undoubtedly, the

protection and preservation of human rights is one of the most important

aspects of the rule of law.

29. Keeping this in mind, as well as the Universal Declaration of Human

Rights, Parliament enacted the Protection of Human Rights Act, 1993. The

Statement of Objects and Reasons for the Protection of Human Rights Act,

1993 is of considerable significance and accepts the importance of issues

relating to human rights with a view, inter alia, to bring accountability and

transparency in human rights jurisprudence. The Statement of Objects and

Reasons reads as under:-

“1. India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights, adopted by the General Assembly of the United Nations on the 16th December, 1966. The human rights embodied in the aforesaid covenants stand substantially protected by the Constitution.

2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures and systems of administration of justice; with a view to bringing about greater accountability and transparency in

W.P. (Crl.) No. 129 of 2012 etc. Page 15 of 26 them, and devising efficient and effective methods of dealing with the situation.

3. Wide ranging discussions were held at various fora such as the Chief Ministers’ Conference on Human Rights, seminars organized in various parts of the country and meetings with leaders of various political parties. Taking into account the views expressed in these discussions, the present Bill is brought before Parliament.”

30. Under the provisions of the Protection of Human Rights Act, 1993 the

NHRC has been constituted as a high-powered statutory body whose

Chairperson is and always has been a retired Chief Justice of India.

Amongst others, a retired judge of the Supreme Court and a retired Chief

Justice of a High Court is and has always been a member of the NHRC.

31. In Ram Deo Chauhan v. Bani Kanta Das 5 this Court recognized that

the words ‘human rights’ though not defined in the Universal Declaration of

Human Rights have been defined in the Protection of Human Rights Act,

1993 in very broad terms and that these human rights are enforceable by

courts in India. This is what this Court had to say in this regard in

paragraphs 47-49 of the Report:

“Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislations of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country

5 (2010) 14 SCC 209

W.P. (Crl.) No. 129 of 2012 etc. Page 16 of 26 committed to the rule of law put into force mechanisms for their enforcement and protection.

Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as UDHR) adopted by the General Assembly of the United Nations on 10-12-1948 recognises and requires the observance of certain universal rights, articulated therein, to be human rights, and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term “human rights” itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein.

Possibly considering the wide sweep of such basic rights, the definition of “human rights” in the 1993 Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human rights and NHRC has the jurisdiction to intervene for protecting it.”

32. It was submitted (and we agree) that the NHRC has essentially four

roles to play, namely that of protector, advisor, monitor and educator of

human rights. It is in this capacity that the NHRC as a protector and monitor

of human rights through effective investigations has issued guidelines from

time to time with regard to various aspects including reporting of matters

relating to custodial death and rape, videography of post-mortem

examination etc.

W.P. (Crl.) No. 129 of 2012 etc. Page 17 of 26

33. On 14th December, 1993 the NHRC directed law and order agencies

across the country to report matters relating to custodial deaths and rapes

within 24 hours. (At that time, death in police action was classified under

‘custodial deaths’).

34. A couple of years later, on 10th August, 1995 the NHRC sent a letter to

all Chief Ministers advising them of the necessity of introducing

video-filming of post-mortem examinations from 1st October, 1995 onwards

to avoid distortion of facts. This was followed by another letter dated 27 th

March, 1997 sent by the NHRC to all Chief Ministers recommending that all

States adopt the “Model Autopsy Form” and “Additional Procedure for

Inquest” prepared by the NHRC which was based on discussions with

experts and the UN Model Autopsy Protocol. This was to ensure that all

information was collected by the concerned officer and supplied to NHRC

without delay.

35. On 29th March 1997 the NHRC issued Guidelines recommending the

procedure to be followed by States and Union Territories with regard to

encounter deaths. It was recommended, inter alia, that:

i. Deaths should be entered in an appropriate register at the Police

Station;

ii. It should be treated as a cognizable offence and investigation

should commence;

iii. It should be investigated by an independent agency such as the

State CID, and not by officers of the same Police Station;

W.P. (Crl.) No. 129 of 2012 etc. Page 18 of 26 iv. Compensation to the victim’s dependants should be considered

in cases ending in conviction.

36. These Guidelines were revised and circulated on 2 nd December, 2003

to introduce greater transparency and accountability, since the States were

not regularly intimating the NHRC of encounter deaths thereby affecting

statistical data. The revised Guidelines contained the following major

changes, in addition to the previous Guidelines:

a. If a specific complaint was made against the police, an

FIR must be lodged;

b. A Magisterial Inquiry was now mandatory in every

encounter death;

c. It also required the State Director General of Police to

send a 6-monthly statement of details of all deaths in

police action to the NHRC.

37. As one would expect, there was continued non-compliance of the

Guidelines by the States, making it necessary for the NHRC to further revise

and circulate the Guidelines on 12th May, 2010 containing the following

major changes, in addition to the previous guidelines:

a. The Magisterial Inquiry was required to be completed within 3

months;

b. Every death in police action was to be reported to the NHRC by

the District Superintendent of Police within 48 hours; c. A second report was to be sent to the NHRC by the District

Superintendent of Police within 3 months, with the Post-Mortem

W.P. (Crl.) No. 129 of 2012 etc. Page 19 of 26 Report, Inquest Report, Ballistic Report and findings of the

Magisterial Inquiry.

These Guidelines are currently operational.

38. It was submitted by the NHRC that all its communications and

Guidelines have remained only on paper and are not enforced by any State

Government. The submission of the NHRC was that to ensure that good

quality reports are available, the Guidelines need to be strictly enforced. We

agree with this submission and make it clear that the intention of the NHRC

is to more effectively assist the criminal justice delivery system and avoid

any factual controversies while respecting human rights. It is not as if the

dignity of only living persons needs to be respected but even the dignity of

the dead must be given due respect. Unless the communications and

Guidelines laid down by the NHRC (which have been prepared after wide

ranging and detailed consultations) are adhered to, the respect and dignity

due to the dead and the human rights of all us will remain only on paper.

Other issues concerning the NHRC

39. Apart from a lack of concern for the communications and Guidelines

issued by the NHRC or the absence of attention that they deserve, the

difficulty faced by the NHRC is that even if there is half-hearted

compliance, there are unexplained delays on the part of the State

W.P. (Crl.) No. 129 of 2012 etc. Page 20 of 26 Government in sending reports; the quality of the reports is certainly not up

to the mark and as expected; sometimes some columns are left blank in the

reports and on other occasions some documents are illegible etc. All this,

according to the NHRC, hampers its efficient functioning and causes delays

in the implementation of the human rights of aggrieved persons.

40. It was also submitted that the NHRC receives a very large number of

complaints on a daily basis and quite frequently as many as 450 complaints

are received in one day. The NHRC has been requesting for an adequate

number of trained staff but, instead of additional staff being provided, the

staff strength is depleting. This has resulted in overburdening the existing

staff. In this context, our attention was drawn to Section 11 of the Protection

of Human Rights Act, 1993 which reads as follows:

“11. Officers and other staff of the Commission - (1) The Central Government shall make available to the Commission -

(a) an Officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the Commission; and

(b) such police and investigative staff under an officer not below the rank of a Director-General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the Commission.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.

W.P. (Crl.) No. 129 of 2012 etc. Page 21 of 26 (3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as may be prescribed.”

41. It is quite clear from a reading of the above provision that the Central

Government is under an obligation (‘shall make available’) to provide

adequate officers and staff so that the NHRC can perform its functions

efficiently. The difficulties faced by the NHRC due to inadequate officers

and staff and something to worry about from a human rights perspective.

42. The general submission of the NHRC is that there should be

implementation of its communications and Guidelines, enforcement of the

orders passed by it and serious consideration of the recommendations made

by the NHRC and necessary provision for its effective functioning.

43. The NHRC has placed before us the following table indicating the

change in its work-load and a careful scrutiny of it clearly indicates the

remedial steps that need to be taken with regard to the staff strength.

Comparison between the Investigation Division Sanctioned Strength and work load during 2014-15 with that in 1995-96.

Present Previous % (31-03-2015) (31-3-1995) Increase/decrease Sanctioned Staff 49** 59* - 16.94%* decrease in staff strength Total complaints 1,14,167 7843 1455% increase received annually

W.P. (Crl.) No. 129 of 2012 etc. Page 22 of 26 Investigation 53 13 407% increase Custodial Death 5496 444 1237% increase Cases Fact Finding 1851 706 262% increase Cases Rapid Action 120 (More than NIL 120 times Cell (RAC) cases 100 cases were (started after added in last 2007) three months alone). Table-IV

44. Considering that such a high powered body has brought out its

difficulties through affidavits and written submissions filed in this Court, we

have no doubt that it has been most unfortunately reduced to a toothless

tiger. We are of the clear opinion that any request made by the NHRC in this

regard must be expeditiously and favourably respected and considered by

the Union of India otherwise it would become impossible for the NHRC to

function effectively and would also invite avoidable criticism regarding

respect for human rights in our country. We direct the Union of India to take

note of the concerns of the NHRC and remedy them at the earliest and with a

positive outlook.

45. In the context of non-compliance of the orders of the NHRC, it has

also been brought by the NHRC that the directions issued by it for payment

of compensation to victims of violation of human rights are sometimes not

adhered to. We have seen in Table – III above that there are some instances

W.P. (Crl.) No. 129 of 2012 etc. Page 23 of 26 where the directions given by the NHRC for payment of compensation have

not been implemented by the State of Manipur. This is very unfortunate but

we accept the assurance of learned senior counsel appearing for the State of

Manipur that the compensation awarded by the NHRC will soon be paid to

the next of kin of the deceased.

46. We expect all State Governments to abide by the directions issued by

the NHRC in regard to compensation and other issues as may arise from

time to time. If the people of our country are deprived of human rights or

cannot have them enforced, democracy itself would be in peril.

State Human Rights Commissions

47. We have been informed that not all States have Human Rights

Commissions and this is confirmed from the website of the NHRC. 6 While

the Protection of Human Rights Act, 1993 provides for the constitution of a

State Human Rights Commission under Section 21 of the said Act, it is not

made mandatory. However, in our opinion, the provisions of Part III of our

Constitution particularly the essence of Article 21 of the Constitution does

require every State to constitute a State Human Rights Commission, but we

do not think it appropriate to issue any direction, particularly in the present

6 nhrc.nic.in

W.P. (Crl.) No. 129 of 2012 etc. Page 24 of 26 writ petitions, to State Governments to constitute a State Human Rights

Commission. But, we do feel it imperative to bring it to the notice of all

State Governments that it would be but a small step in the protection of life

and liberty of every person in our country if a State Human Rights

Commission is constituted at the earliest.

Annual Reports

48. We must express our disappointment on the failure of the NHRC to

bring out its Annual Reports. A perusal of the website of the NHRC brings

out that the latest Annual Report is of 2012-2013. Several years have gone

by since then, but no Annual Report has been published – we have no idea

what is the stage of preparation or consideration of the subsequent Annual

Reports. We express the hope that given the importance of human rights, the

Annual Reports of the NHRC will be made available with due expedition.

Orders

1. As already directed, the Director of the Central Bureau of

Investigation will nominate a team and inform us of its composition

within two weeks, as also any other requirement. List these cases

immediately after three weeks for compliance.

W.P. (Crl.) No. 129 of 2012 etc. Page 25 of 26

2. These petitions should also be listed positively in the second week of

January, 2018 to ensure compliance with our directions for

investigation by Central Bureau of Investigation.

……………………………J (Madan B. Lokur)

……………………………J New Delhi; (Uday Umesh Lalit) July 14 , 2017

W.P. (Crl.) No. 129 of 2012 etc. Page 26 of 26