P ARAMJIT KAUR

STATE OF PUNJAB AND ORS.

SEPTEMBER 10, 1998

(S. SAGHIR AHMAD AND S. RAJENDRA BABU, JJ.]

Protectio11 of Huma11 Rights Act, 1993-Sectio11 36(2)-Prohibition from enquiling into ally matter after the expily of one year from the date 011

whicH the act co11stituting violatio11 of huma11 1ights is said to have been C comniitted-The said prohibition can11ot control the plenitude of jurisdictio11 of Supreme Cowt u11der A1ticle 32 of tire Constitution of lndia-Commissio11 acts as a Sui-ge11e1is whe11 it acts under tire remit of Supreme Cowt a11d is

11ot circumsC1ibed by tire prohibition contained in Section 36(2) of the Act.

Limitation-Huma11 Rights Commission-l11quili11g of violation of D huma11 1ights Ufter 011e year can11ot co11trol the plenitude of the jwisdiction of the Supreme Cowt under A1ticle 32.

Constitutio11 of India, I95(}-A1ticle 32-17ze ple11itude of jurisdiction under Alticle 32 can11ot be controlled by any statutmy fetter.

Human Right commission-In decidi11g the matters referred by Supreme Cowt, the Commission is give11 a free ha11d and is not circumsCJibed by any conditio11s and the jwisdiction exercised by Commission is of a special nature not covered by enactme11t of law and thus acts sui-generis.

F Words and Phrases-'Sui-gene1is'-Meaning of.

Contents of a Press Note dated 16th January, 1995 depicted the llagrant violation of human rights on a mass scale in the State of Punjab.

This Court converted the contents of news reports into Writ Petitions under Article 32 of the Constitution of India and directed the National G Human Rights Commission to enquire into the allegation of violation of human rights vide its order dated 12th December, 1996. When Human Rights Commission took up the matter, preliminary objections were raised as to the jurisdiction with reference to its statutory obligation and limita tions, including the prohibition from enquiring into any matter after the H expiry of one year from the date on which the act constituting the violation

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P. KAUR v. STATE 539

of human rights is said to have been committed as set out in Section 36(2) A of the Protection of Human Rights Act, 1993.

The Commission framed four preliminary issues and held as under:

(i) Once the Supreme Court in exercise of its jurisdiction under B Article 32 of the Constitution of India identifies the Commission for enquiring into the allegation of violation of human rights, it becomes a body Sui-gene1is as the one chosen by the Supreme Court for carrying out its behest, and limitations under the Act are not attracted.

(ii) The powers of the Commission in carrying out the mandate of the Supreme Court are not limited by Section 36(2) or other provisions if it acts as a body Sui-genelis under the remit of the Supreme Court.

(iii) If the Supreme Court in exercise of its jurisdiction under Article

32 of the Constitution of India directs the Commission to enquire aliout D the allegation of violation of human rights, then the Commission does not act as an independent adjudicatory body but as a~ instrumentality or an agency of the Supreme Court and thus there is no question of creating a jurisdiction in Commission because Supreme Court is continuing to retain seisin over the case; and

(iv) In view of the large number of claims, the Commission does need greatly to augment its logistical capability, including its administrative and judicial personnel for processing the claim.

Union of India took exception to the above ruling of the Commission F on preliminary objections and approached this Court by way of Misc.

Petition for clarification of order of this Court dated 12th December, 1996 passed in Writ Petitions.

Dismissing the Misc. Petitions; this Court

HELD : I.I. The power and jurisdiction of this Court under Article 32 of the Constitution cannot be curtailed by any statutory limitation, including those contained in Section 36(2) of the Act. If the Commission is directed to investigate any matter and if it acts under remit of order of

this Court, it acts as sui-genelis and the jurisdiction exercised by the H

A National Human Rights Commission is of a special nature not covered by any enactment. [546-D; E]

1.2. In exercise of powers under Article 32, the powers of this Court are unfettered and if this Court has chosen to exercise such powers through National Human Rights Commission as indicated in the order B referring matters to it, it cannot be said that a new jurisdiction is conferred on National Human Rights Commission. [547-A; B]

A.R. Antulay v. Union of India, [1988] 2 SCC 602 distinguished.

1.3. The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the Commission is not a healthy attitude and does not represent the effort to assist the Commission for quick conclusion of the proceedings so that if there have been any violation of human rights, the families affected thereby may be rehabilitated and adequately compen- D sated. [548-G]

2. The concept of sui-gene1is is applied quite often with reference to resolution of disputes in the context of International Law. When the conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to arbiter is entrusted acts sui-generis, that is, on its own and not under any law. [546-G, HJ

CRIMINAL APPELLATE JURISDICTION : Writ Petitions (Crl.) Nos. 497 and 447 of 1995.

Criminal Misc. Petition Nos. 6674 of 1997 and 4868/98.

(Under Article 32 of the Constitution of India.)

R.N. Trivedi, Additional Solicitor General, R.K. Dhawan, Dr. A.M.

Singhvi, R.S. Sodhi, A.D.N. Rao, Tara Chandra Sharma, P. Parmeshwaran, R.S. Suri, Sarup Singh Kuldip Singh, Sudhir Walia, Ms. Nitya Ramakrishnan, M.S. Dahiya and Ashok Aggarwal for the appearing parties.

The Judgment of the Court was delivered by

SAGHIR AHMAD, J. CRL.M.P. No. 1997 in Writ Petitions A (Criminal) Nos. 497 and 447 of 1995.

Union of India has filed this petition for clarification of the order dated 12th December, 1996, passed by this Court in Writ Petitions (Criminal) No. 447 of 1995 and 497 of 1995, by which a request was made to the National Human Rights Commission to examine the flagrant violations of human rights on a mass scale in the State of Punjab as disclosed in the CBI Report submitted to this Court in the aforesaid Writ Petitions in pursuance of the earlier order dated 15th November, 1995, in which it was, inter alia, stated as under :

"Mr. M.L. Sareen, learned Advocate-General, Punjab has very fairly stated that keeping in view the serious allegations levelled by

the petitioner against the officers/officials of the Punjab Police, it would be in the interest of Justice that the investigation in this matter be handed over to an independent authority. Even other- D wise, in order to instil confidence in the public mind and to do justice to the petitioner and his family it would be proper to withdraw the investigation from Pqnjab Police in this case. We, therefore, direct the [)irector, Central Bureau of Investigation to appoint an investigation team headed by a responsible officer to hold investigation in the kidnapping and whereabouts of Khalra. E We further direct the Director General of Police, Punjab, all concerned Punjab Police Officers, Home Secretary and Chief Secretary Punjab to render all assistance and help to the CBI in the investigation.

The second issue highlighted in this petition is equally important.

This Court cannot close its eyes to the contents of the Press Note dated January 16, 1995 stated to be investigated by Khalra and Dhillon. In case it is found that the facts stated in theJ>ress Note

are correct - even partiallyit would be a gory tale of Human-rights violations. It is horrifying to visualize that dead-bodies of large G number of persons - allegedly thousands - could be cremated by the police unceremoniously with a label "unidentified". Our faith in democracy and rule of law assures us that nothing of the type can ever happen in this country but the allegations in the Press Note - horrendous as they are - need thorough investigation, We, H

therefore, direct the Director, Central Bureau of Investigation to appoint a high powered team to investigate into the facts contained in the Press Note dated January 16, 1995. We direct all the concerned authorities of the State of Punjab including the Director General of Police, Punjab to render all assistance to the CB.I in the investigation. All authorities of the Punjab Government shall render all help and assistance to the CBI team as and when asked by any member of the said team. We give liberty to the CBI to seek any further directions from this Court from time to time as may be necessary during the investigation."

C When the matter was taken up by the Commission, preliminary objections were raised as to the jurisdiction with reference to its statutory obligations and limitations, including the prohibition from inquiring into any matter after the expiry of one year from the date on which the act constituting violation of human rights is said to have been committed as set out in Section 36(2) of the Protection of Human Rights Act, 1993, D (hereinafter referred to as 'the Act', for short), which provides as under : ·

"The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act c9nstituting violation of human rights is alleged to have been committed."

The Commission framed four preliminary issues as under :

"l. Whether the order dated 12 December, 1996 is referable to the plenitude Article 32 and has the effect of designating the National F Human Rights Commission, not as a mere statutory authority functioning within the strict limits of the provisions of the Act, but as a body sui-ge11e1is to perform functions and determine issues entrusted to it by the supreme Court.

2. If the answer of issue No. 1 is in the affirmative, whether in the discharge of its functions under the said remit, the powers of the Commission are not limited by Section 36(2) and other provisions of the 'Act'.

3. Whether, the order of the Supreme Court, requires the Com H mission to adjudicate on the t:ompensntion nnd whether such

adjudications are binding on the Governments concerned. A Whether such empowerment of the Commission amounts to an investiture of a new jurisdiction on the Commission not already existing under law and whether the order of the. Supreme Court amounts to a constitutionally impermissible delegation of its own judicial powers.

4. Whether the Commission could, to aid speedy disposal of the claims for compensation, set-up adjudicatory mechanism under it, subject in each case to its final approval."

On Issues No. 1 and 2, tlie Commission in Paras 10 and 12 of its C order dated 4th August, 1997, held as under :

"10. The order of the Supreme Court must be so read as to effectuate it. The Commission, the Governments and the parties are expected to act in aid and effectuation of that order; and not D to frustrate it. The order must be construed reasonably and harmoniously. The expression "to have the matter examined in accordance with law" is not necessarily the same thing as "to function strictly within the limitations of the Act." The Supreme Court made the order in exercise of the plenitude of its jurisdiction under Article 32 of the Constitution. That, for the parties and the Commission, has the effet and force of law.

The reasonable way to construe the order and effectuate it is to hold that the Commission was referred to only for purposes of identifying it as the body to which the Supreme Court was turning,

in this instance, for the protection of fundamental rights. Once the identification was made, it became a body s1ti-ge11eris as the one chosen by the Supreme Court for carrying out its behests. The shackles and limitations under the Act are not attracted to this body as, indeed, it does not function under the provisions of the G Act but under the remit of the Supreme Court. The provisions of the Act do not bind or limit the powers of. the Supreme Court in exercise of its powers under Article 32. It is, therefore, reasonable to hold that the Supreme Court designated the Commission as body suigtmeris to carry out the functions and determine issues as H

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entrusted to it by the Supreme Court. To read the order otherwise is to render it otiose.

12. In the light of the foregoing discussion, the Commission holds that the Commission was designated as a body sui-generis to carry out the mandate of the Supreme Court. As a logical consequence, it requires to be held on Issue No. 2 that the powers of the Commission in carrying out this mandate are not limited by Section 36(2) or other limiting provisions, if any, under the Act."

On Issue No. 3, the finding of the Commission was as under :

"17. If the order of the Supreme Court , for purposes of these preliminary objections, admits of being construed as not creating any exclusive final adjudicatory jurisdiction in the commission, but is understood as implying ( 1) that the Supreme Court continues to retain seisin over the cases; (ii) that the determination by the commission of the issues arising in the matter may require, wherever necessary or appropriate, the 'approval' of the Supreme Court; (iii) that the stipulation that "compensation awarded hy the Commission shall be binding and payable" shall be subject to such "approval" and that (iv) that the Commission discharges its functions under the Supreme Court's Order, it does so not as an independent adjudicatory body but as an instrumentality or agency of the Court, then all these objections do not survive. The order of Supreme Court is amenable to and admits of such a construetion. For the present stage, this should suffice to reject the preliminary objections as to maintainability.

18. Accordingly issue 3 requires to be and is hereby answered in the negative."

The finding of the Commission on Issm: No. 4 is as under :

"19. Issue No. 4

In order to nsure that the large number of claims that are likely to arise for determination are resolved in an expeditious manner, the Commission does need greatly to augment its logistical H ., capability, including its administrative and judicial personnel. An

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adequate staff will thus become necessary and will require to be A placed in position (limited to the period of pendency of these matters). At a stage just below the level of the Commission, some officers with judicial experience (call them enquiry-commissioners, claimscommissioners, special-commissioner, or whatever), require to be inducted. These claim-Commissioners may record and B process the evidence, conduct enquiries under the directions of the Commission and recommend appropriate compensation subject to their final endorsement by the Commission. The Commission will need to create a separate wing or department, .as it were, distinct from the normal staffing of the Commission, to deal with c the requirements of this purpose. This work, as is clear, is not the work of the statutory Commission, in a strict sense, but the responsibility and concern of the body designated (selected) for this purpose by the Supreme Court. For all these matters, special administrative and financial allocations would require to be worked out with assistance of the State of Punjab and the Union D of India. These are some of the future implications of the case and they will have to be borne in mind fully by the concerned Governments. With the foregoing observations, issue 4 is disposed of."

So far as the requirements of the Commission for special administra- E tive and financial allocations are concerned (as indicated in its findings on Issue No. 4), it was stated by learned Addi. Solicitor General, Mr. R.N.

Trivedi, that Union of India would not be found failing in its duty to provide necessary, including administrative and financial, assistance to the Commission to carry out the job entrusted to it by this Court.

The findings on all the issues are ex'plicit and clear and truly reflect the intention of this Court as set out in its order dated 12th December, . 1996, which was passed in the aforesaid two Writ Petitions under Article 32 of the Constitution.

The Matter relating to 585 dead bodies (which were fully identified), 274 partially identified and 1238 unidentified dead bodies, has already been referred to the Commission which has rightly held itself to be a body sui-generis in the instant case.

A The Commission headed by a former Chief Justice of India, is a unique expert body in itself. Fundamental Rights, contained in Part III of the Constitution of India, represent the basic human rights possessed by every human being in this world inhabited by people of different continents, countries, castes, colours and religions. The country, the colour and the B religion may have divided them into different groups but as human beings, they are all one and possess the same rights.

The Chairman of the Commission, in his capacity as a Judge of the High Court and then as a Judge of this Court and also as Chief Justice of India, and so also two other members who have held Judicial Offices as C Chief Justices of the High Courts, have throughout their tenure, considered, expounded and enforced the Fundamental Rights and are, in their own way, experts in the field. The Commission, therefore, is truly an expert body to which a reference has been made by this Court in the instant case.

The power and jurisdiction of this Court under Article 32 of the D Constitution cannot be curtailed by any statutory limitation, including those contained in Section 36(2) of the Act. If this Court can exercise that power unaffected by the prohibition contained in Section 36(2), there is no reason why the Commission, at the request of this Court, cannot investigate or look into the violations of human rights even though the period of limitation E indicated in Section 36(2) might have expired. In such a situation, the Commission will not be affected by the bar contained in Section 36(2) and it will be well within its rights to investigate the matter referred to it by this Court.

Shri R.N. Trivedi in support of the application for clarification F submitted that the order of this Court by which matter was referred to National Human Rights Commission for disposal does not enable National Human Rights Commission to function sui generis. If the effect of the order is that the National Human Rights Commission can function sui generis, this Court could not create a new kind of jurisdiction in view of the decision G in Antulay's case.

The concept of sui generis is applied quite often with reference to resolution of disputes in the context of International Law. When the Conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to H arbiter is entrusted acts sui generis, that is, on its own and not under any

law.

In the present case this Court in exercise of the jurisdiction under Article 32 of the Constitution entrusted the National Human Rights Commission to deal with certain matters in the matter indicated in the course of its order. All authorities in the country are bound by the directions of this Court and have to act in aid of thi~ Court. National Human Right~ Commission is no exception. The Commission would function pursuant to the directions issued by this Court and not under the Act under which it is constituted. In deciding the matters referred by this Court, National

1 Human Rights Commission is given a free hand and is not circumscribed by any conditions. Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature not covered by enactment or law, rnd thus acts stti generis.

In the decision in Antulay's case, this Court was dealing with a situation arising under the Prevention of Corruption Act which provided a special court for trial of cases thereunder. When this Court ordered that D the trial be conducted by the High Court instead of the Special Court, it was found that such a course cannot be adopted so as to create a new jurisdiction. The situation arising in that case is altogether different. In exercise of powers under Article 32, the powers of this Court are unfettered and if this Court has chosen to exercise such powers through National Human Rights Commission as indicated in the order referring matters to E it, it cannot be said that a new jurisdiction is conferred on National Human Rights Commission. On the other hand, National Human Rights Commission acts in aid of this Court in exercise of the powers under Article 32 of the Constitution. Thus the contention of the applicant is misconceived.

The Commission is also a body sui juris created under an Act made by the Parliament for examining and investigating the questions and complaints relating to violation of human rights, as also the negligence on the part of any public servant in preventing such violations.

In the order dated 22.7.1996 in Writ Petition (Criminal) No. 447 of G 1995, it was inter alia, stated as under :

"As stated above the enquiry by the C.B.I. is continuing. Since large null).ber of dead bodies have been allegedly disposed of by the police it may be necessary to seek assistance from the public at large. We direct the C.B.I. in the course of enquiry to issue a H

general direction to the public at large that if any person/authority/Government office has any information/material which may be of any assistance to the C.B.I. in the enquiry in this matter, the same shall be placed before the C.B.I. We direct Mr.

P.S. Sandhu, D.I.G. (Border) to handover the entire relevant record to the C.B.I. immediately. Any delay in this matter shall be taken to be violation of this Court's order which will attract the provisions of Contempt of Court. Mr. M.D. Sarin, Advocate General, Punjab is present in Court. We request Mr. Sarin to personally see that all assistance in this matter is rendered to the

C.B.I."

It is in the background of the above order that the order dated 12th December, 1996 is to be read, in which this Court. had stated as under :

"Without going into the matter any further, we leave the whole matter to be dealt with by the Commission."

At another stage, it was stated in the same order as under :

"While the CBI is investigating the .matter, we are of the view that the remaining issues involved in this case be left for the determination of the Commission which is the appropriate body for this purpose.

The investigation by the CBI has been ordered and is being done to determine and establish some other facets, including culpability of those responsible for violation of human rights. The remaining issues have been referred to the Commission. They obviously relate to violation of human F rights. If on a publication of general notice, as proposed by the Commission, which incidentally was also done by the CBI in pursuance of our Order dated 22. 7 .96, complaints relating to violation of human rights are filed before the Commission, it will investigate into those .complaints in accordance with the provisions of the Act, specially Section 17 thereof and will also take such steps, after enquiry, as are deemed fit by it in the light G of the provisions contained in Section 18 of the Act.

The various objections raised before the Commission, which had to frame preliminary issues and dispose them of, indicate the attitude of the parties appearing before the commission, which we are constrained to say, is not a healthy attitude and does not represent the effort to assist the H Commission for a quick conclusion of the proceedings so that if there have

P.KAUR v. STATE[S.SAGHIRAHMAD, J.] 549

been any violations of human rights, the families affected thereby may be A rehabilitated and adequately compensated. We also do not approve of the conduct of the parties in approaching this Court for clarification of the order of the Commission by way of a Misc. Petition which was filed on 3.10.1997 and has remained pending in this Court for ten months, during which period the Commission could have had disposed of the whole matter.

The Petition for clarifications is disposed of in the manner indicated above.

• • CRL.M.P. No. 4808 of 1998 In Writ Petitions (Criminal) Nos. 497 and 447 ~~ c

We have heard Dr. A.M. Singhvi, Senior Counsel, on this petition which is rejected as no intervention can be permitted in a petition filed on behalf of Union of India for clarification of this Court's order dated 12th December, 1996.

V.K.

Petitions dismissed.