[2017] l 1 S.C.R. 363

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. & ANR.

UNION OF INDIA & ORS.

(Writ Petition (Crl.) No. 129 of 2012)

JULYl4,2017

[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.]

Constitution oflndia -Art.21 and 32- Fake encounter killings

- Use of excessive Jl>rce or retaliulo(V force b.v police personnel and perso1111el in uniform of the armedforces in the State of Manipur

- Wiit petition alleging that I 528 persons killed in fake encounters

- Documentation found inadequate to order any inquiry into allegations made - issuance of direction lo complete the documen/ation - information collected with regard to 655 deaths out of i 528 alleged. wherein deaths were investigated by Commissions of inquiry, Judicial Inquiries, High Court, NHRC. and Justice Santosh Hegde Commission and registration of FIRs was directed in these complaints - Issuance of direction to CBI lo constitute a Special Invesligation Team lo investigate the alleged ex/ra judicial killings in Manipur - Officers of the Manipur Police not associaled with Special Invesligaling Team, since in some of /he cases the role of the Manipur Police itself has been adversely

con1111e11ted upon.

Administration of Justice - Fake encounter killings - Petition al the instance of third party, next of the kin having lhemse/ves given a quietus to the incidents - Maintainability of-Held: It cannot be said that the Court cannot take up the issue at the instance of a third parzv - Access to justice is certainly a human right and it has been given a special place in the constitutional scheme where free legal aid and advice is provided to a large number of people in the co11111ry - To provide access to justice to every citizen and to make it meaning(td. lhis Court has evolved its public interest jurisprudence

- In the instant petitions, the next of kin could not access justice in the local courts and the petitioners took up their cause in public interest - Constitutional j11rispn1dence does not permit to shut the door on such persons and the constitutional obligation requires to give justice a11d succour to the next of kin of the deceased.

('01n11e11:•; ation - l'ake encounter killing.r,· - ("on11Jensation, whether an appropriate relief - Held: Compensation having bee11 paid lo the next of kin fiJr the unfortunate deaths, it ca1111ot he said that it may be 110/ necessaty to proceed further in the matter - c:o11111e11sation has been lll1'£1r, ietf tu the next of kin for the agon.v they have sujfeted and ro enable them lo immediately tide over their loss and jiJr thrir relwbilitution - This cannot override the law of the land. othe1twise all heinous crimes would gel sellled through payment of moneta1y compensation - Constillllional jurisprudence does not pern1it this and certain/)' cannot encourage ur countenance such a vie-iv.

Delay/Laches - Fake encounter killings - Some of the incidents of considerable vintage - Re-opening of the issues .fur investigation - Held: Crime which involves the death of a person who is possibly in11ocent, ca1111ot be 01•er-looked only because of' a lapse c!f' time - It was the obligation of the State to have suo motu conducted a thorough inqui1y at the appropriate time and soon after each incide11/ look place - Merely because the State has not 1ake11 any action and has allowed rime to go by, it cannot take tu/vantage of the clela,, v to .\-cuttle an inquiry.

Protection of Huma11 Rights Act, 1993 - Natio11al Human Rights Commission - lmple111e11tatio11 of its communications a11d Guide/i11es - Plea of NHRC that there should be implementation of its communicat/011s a11d Guidelines, enforceme11t of the orders passed by it and necessary provision for its effective fi111ctioni11g - Held: Intention of the NHRC is to 111ore effectively assist the crimiolc1ljustice delive1y system and avoid anyji1ctual controversies while reopecting human rights - Unless the communicatio11s and G11ideli11es laid down by the NHRC are adhered lo, the respect and dignity due to the dead and the hu111an rights of all will remain only on paper - Request 111ade by NHRC to be expeditiously and favourably respected and considered by the Union of' India for the effective fimctioning of NHRC - Issuance of direction to Union of India to take note of the concerns of' the NHRC and remedy them at the earliest.

Adjourning the matter, the Court

HELD: 1.1 The submission that some of the incidents are of considerable vintage and at this point of time it may not be

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 365

INDIA

appropriate to re-open the issues for investigation, cannot be A accepted. If a crime has been committed, a crime which involves the death of a person who is possibly innocent, it cannot be overlooked only because of a lapse of time. It was the obligation of the State to have .mo 1110/u conducted a thorough inquiry at the appropriate time and soon after each incident took place. Merely because the State did not taken any action and allowed the time to go by, it cannot take advantage of the delay to scuttle an inquiry. [Para 18][378-A-C] _ 1.2 The submission that there were local pressures and the ground level situation was such that it would not be surprising

ff the inquiries were biased in favour of the citizens and against C . the State, is 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 nwtivated is casting very serious aspersions on the independence of the authorities in D Manipur at that point of time, is not at all warranted. (Para 1911378-

D-EJ

1.3 The submission that in many instances the next of kin of the deceased had not approached this Court and there is no reason why this Court should entertain a petition tiled by a third party, is rejected. Access to justice is certainly a human right and it has been given a special place in the 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 hislory of public interest litigation over the years has settled tha~ 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 the constitutional courts and pray for justice.

This is precisely what has happened in the instant petitions where the next of kin conld not access justice even in _the local courts and the petitioners have taken up their cause in public interest.

The constitutional jurisprudence docs not permit to shut the door on such persons and the constitutional obligation requires to give justice and succour to the next of kin of the deceased. [Paras

20-21][378-F-H; 379-A-B) •

1.4 The submission that compensation has been paid to the next of kin for the unfortunate deaths and therefore, it may be not necessary to proceed further in the matter, cannot be accepted. 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. The constitutional jurisprudence docs not permit this and certainly cannot encourage or countenance such a view. [Para 2211379-C- D]

l.5 As far as the appointment of a Special Investigating Team is concerned, it was suggested that officers of the Manipur Police may be associated. It is not 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. There is no hesitation in directing the constitution of a Special Investigating Team to investigate the cases. In none of the cases has an 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 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. More appropriate course of action would be to appoint an independent investigating team to examine the said cases. [Paras 23-2511379-D-H; 380-A-C]

1.6 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 force. The Director of the CBI is directed to nominate a group of five officers to go

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF "167

INDIA

through the records of the cases mentioned in the three tables A given lodge necessary FIRs and to complete the investigations into the same by 31" 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. It is left to the Special Investigating Team to utilize the material already gathered, in accordance with law. The State ofManipur is expected to extend full cooperation and assistance to the Special Investigating Team. The Union of India is expected to render full assistance to the Special Investigating Team to complete the investigation at the earliest without any unnecessary hindrances or obstacles. [Para 26][380-D-FJ

1. 7 The Director of the Central Bureau of Investigation would nominate a team and inform this Court of its composition within two weeks, as also any other requirement. These petitions should also be listed within the stipulated period to ensure D compliance with the directions for investigation by Central Bureau of Investigation. [Para 48)(388-D-E]

2.1 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. 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. [Paras 30, 32][381-H; 382-A-Bl 2.2 The submission by the NHRC that all its communications and Guidelines have remained only on paper and arc not enforced by any State Government; and that to ensure that good quality reports arc available, the Guidelines need to be strictly enforced is accepted. It is made 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

L~ 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) arc adhered to, the respect and dignity due to the dead and the human rights of all will remain only on paper. [Para 38][384-F-Hl 2.3 It is quite clear from the reading of s. 11 of the Protection of Human Rights Act, 1993 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. [Para 41][385-H; 386-A) 2.4 Considering that such a high powered body-NHRC has brought out its difficulties through affidavits and written submissions filed in this Court, there is no doubt that it has been most unfortunately reduced to a toothless tiger. 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 the country, The Union of India is directed to take note of the concerns of the NHRC and remedy them at the earliest and with a positive outlook. [Para 44[[387-A-Bl 2.5 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 com11ensation to victims of violation of human rights are sometimes not adhered to. There are some instances where the directions given by the NHRC for payment of compensation have not been implemented by the State of Manipnr. This is very unfortunate but the assurance of counsel appearing for the State of Manipur is accepted that the compensation awarded by the NHRC will soon be paid to the next of kin of the deceased. All State Governments are expected 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 the country are deprived of human rights or cannot have them enforced, democracy itself would be in peril. [Paras 45-461(387-C-E)

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 369

INDIA

2.6 It is confirmd from the website of the NHRC that all A States do not have Human Rights Commissions. While the Protection of Human Rights Act provides for the constitution of a State Human Rights Commission u/s. 21 of the Act, it is not made mandatory. However, the provisions of Part III of the Constitution particularly the essence of Article 21 docs require B every State to constitute a State Human Rights Commission, but it is not appropriate to issue any such direction, particularly in the instant writ petitions. But, it is felt 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 if a State Human Rights Commission is constituted at the carliest.[Para C

471[387-F-H)

2. 7 Disappointment is expressed 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 D been published"therc is no idea what is the stage of preparation or consideration of the subsequent Annual Reports. Th'ere is hope that given the importance of human rights, the Annual Reports of the NHRC would be made available with due expedition. [Para

48)(388-B-CI

Naga Peoples Movement of Human Rights v. Union of India. (1998) 2 SCC 109 : [1997] 5 Suppl. SCR 469; Bharati Tamang v. Union of India & Ors. (2013) 15 SCC 578 : [20131 14 SCR 525; R.S. Sodhi v. State of

UP. (1994) Suppl. 1 SCC 143; Ram Deo Chauhan v.

Bani Kanta Das (2010) 14 SCC 209 - referred to.

Case Law Reference

[ 1997] 5 Suppl. SCR 46~ referred to Para 1

[20131 14 SCR 525 referred to Para 24

(1994) Suppl. 1 sec 143 referred to Para 25

(2010) 14 sec 209 referred to Para 31

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 129 of2012.

A Under Article 32 of the Constitution of India

WITH

W. P. (Crl.) No. 445 of2012.

Dr. Mcnaka Guruswamy, Govind Manoharan, Amicus Curies.

Mukul Rohatgi, AG, Colin Gonsalves, Mrs. V. Mahana, V. Giri, Sr.

Advs., Ms. Jyoti Mendiratta, Ms. Olivia Bang. Warcppam Basantakumar, Ashok Kumar Singh, R. Bala, Sunil J. Mathews, M.K. Maroria. Rajiv Nanda, Ms. Binu Tamta. B.K. Prasad, Prabhas Bajaj, Pranav Kumar, Rohit Rathi, Ms. Sabah Iqbal Siddiqui, Sw1il Methoo, Ms. AnanyaMishra, P.K. Dey. Pankaj Pandey, Himanshu Shckhar, Narcsh Kumar Gaur, Niranjan Saanasam, Manav Vohra, Svadha Shankar, Rana Ranjit Singh, Ravish Singh, Satya Mitra, Ms. Mrinmayce Sahu, Ms. Pinky Behcra, Ms. Shobha, Bonny Mehra, Advs. for the appearing parties.

The Judgment of the Court was delivered by MADAN B. LO KUR, J. I. In the present petitions, the allegation was that 1528 pe1sons had been killed in fake encounters by police D personnel and personnel in uniform of the armed forces of the Union.

By our j udgmcnt and order dated g•h July, 2016' we respectfully followed the view laid down by a Constitution Bench of this Court inNaga People'.1 .Mo1•e111ent of Human Rights v. Union of India.' The Constitution Bench held that an allegation of use of excessive force or retaliatory E force by uniformed personnel resulting in the death of any person necessitates a thorough enquiry into the incident. We were of opinion that 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, atlcr 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 cnqt1i1y conducted under the Commissions of!nqui1y 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.

1 (2016) 14 sec 578 (2J

1 (1998)2 sec 109

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 371

INDIA [MADAN B. LOKUR, J.]

3. The petitioners have been able to gather information with regard A to 655 deaths out of 1528 alleged in the writ petitions. The break-up is as follows

SI. No.

PARTICULARS No. of cases

Commission of Inquiry cases 35

Judicial Inquiry and High Court cases 37

NHRC cases 23

Cases with written complaint 170

Cases with oral complaint 78

Cases with eye witnesses 134

Family claimed cases 178

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 apmi from a simple allegation being made, no substantive steps appear to have been taken by either lodging a First lnfonnation Report (FIR) or by filing a writ petition in the concerned High Cowt 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 arc 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 ofL.D. Rengtuiwan and N.

Sanjita Devi were not mentioned in the writ petition. We pass no orders in respect of these two cases.

6. As far as the death ofThangjam Manorama is concerned, the issues are pending in this Court in Civil Appeal Nos. 65-69of2015 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 ofF!Rs in these cases. The clctails of 'Commissions oflnquiry Cases' arc given below in Table-I.

COMMISSIONS OF INQUIRY CASES

SI.No.

NAME OF VICTIM

NOTIFICATION

UNIT

DATE (Total= 35)

L. D. Rcngtui wan 16.03.2005 Not in WP

Thangjam Manorama '!

Pending in

N. Sanjita Devi 00.12.2003 Not in WP

4 to 14.

Amom Rajan Mcitci 04.07.2001

CRPF and l 0 others

15 to 19.

Major Shimareingam '!

Manipur Shaiza and 4 others Police

20to21.

Thoudam Munindro 27.12.1996 Manipur Singh and another Police

22.

Oinam Ongbi Amina 06.04.1996

CRPF Devi

23 to 35.

Angom Raghumani 15.06.1985

CRPF Singh and 12 others

TABLE-I

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 373

INDIA [MADAN B. LOKUR, J.]

Deaths considered by Judicial Inquiries and High Court

A ,

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 3 7 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 B request Hon'blc the Chief Justice ofthe 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.

I 0. One writ petition [W.P. (Criminal) No.103 of2009] has been dismissed meaning thereby that the High Comt found no substance in the pllcgations 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 Constitution Bench of this Court. We direct the registration of FIRs in these cases. The details of these writ petitions arc given below in Table - JI.

JUDICIAL INQUIRY & HIGH COURT CASES .

S. No.

Na1neofVictim Ca.cNo.

Result Unit (fotal=37)

lto3.

Moirantern lbtu.1go + W.P. (C)No.

Pending.

Manipur 2 others 92 of2013.

Polict, Assam Rifles

Athokpam W.P. (Crl .) No.

Co"l'ensati oo Manipur Angousana Meitei l08of201 I awarded Police

Leishangthem W.P. (C1l.) No.

Co"l'ensati oo Manipur Santosli 40 of20(1) awaided Police

A 6.

Sorensangbam W.P. (Cr!.) No. Dismissed Manipur Sanayaima 103 of2009 Police

Ningthoujam W.P. (C) Xo.

Compensatioo BSF Thokch:ao Singh 75 of2008 awarded

B S.

Ningthoujam Binoy W.P. (Cr!.) l\o.

Compcnsauon Manipur alias Khaiba Singh 25 of2009 awarded Police

Sagolsem Vikram W.P. (Cr!.) No.

Compensatioo Assam Singh 5 of2007 awarded Rifles

10.

Pheiioijam W.P. (Cr!.) No.

Compensation Assam Keshorjit 2 of2006 awarded Rifles c

lltol2. Sanasam l\gongo - W.P. (C) Nos.

Compensatioo

21 PARA I other 1201and1205 awarded of2005

D 13.

Pharoijam Sanajit W.P. (Cr!.) No.

Compensation Raj put 2 of2005 and awarded Rifles W.P. (Cr!.) No. 16 of2012

14tol7. Seikholun Baite.,. 3 W.P.(C)No.

Compensatioo CRPF others 752 of2010 awarded and W.P.(C) E

No.663 of 2007

18to27. Kshetrimailm W.P.(C)No.

Compensatioo Assam Inaocha.,. 9 others 1268 of2002 awarded Rifles F 28.

R.K. Lakshana W.P. No. 10 of Compensatioo Manipur alias Beto 2010 (Ref awarded (but Police W.P.(C)No. not yet paid) 1986 of2001)

29.

Rarnaso W.P.No. 591 Compensatioo Assam Shingnaisui ofl999 awarded Rifles G

Mcl.Zakir W.P . .(C)No.

Compensatioo CRPF 114ofl999 awarded

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31to32. Smm Priyokwnar W.P.(C)No.

Pending Assam +I other 840 of2014 Rifles 33.

Khudrakpam W.P. (Cr!.) No. Compensation Assam Tejl..-umar 3 of 2005 awarded Rifles 34.

Asem Romajit WP(C)No. 1

CRPF 646 of2007 35.

Ywnnaln Robita W.P. (C.) No. 1

CRPF 647 of2007 36.

Kangujam Ojit Reponed as Compensation ludian 1999 Cri. L. J. awarded Army 3584 37.

Naorem first Re1ision Compensation Manipur Krishnamohon Appea!No.3 awarded Police Singh of2009

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.

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 ofFIRs in respect of these complaints.

16. The details of the complaints in which a reference has been made to the NHRC arc given below in Table-III.

A NHRC Cases

Name of Victim Result Unit No.

(Total= 23)

B I.

Md . .Zamir Khan Compensation Imphal West Police awarded Commando

2 to Md. Ishaque Ali Compensation Imphal East and 3. + l other awarded West Police c Commando

Hawaibam Pending Assam Rifles Amujao

5 to Oinam Ananda Pending Assam Rifles 6. alias Girani Meitci + l other D

Longjam Pending Imphal East and

Dhamn West Police Commando

E 8.

Waheogbam Pending Imphal West Police Jayenta Commando

Sorem Ranj it Compensation Imphal East Police Singh alias Rojit awarded Commando F

IO.

Wahengbam Compensation

BSF Manglemba awarded Singh

11.

Ningthoujam '!

Manipur Police G Premkumar Commando

12.

Thokchom Pending Manipur Police Sommjit Commando, Maratha Light

H Infantry

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 377

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13 to 14.

Kshetrimayum Pending Imphal West Police Govind +I Commando, other Maratha Light Infantry

15.

Thangjam Anil Compensation Imphal West and B

recommended, East Police bnt not yet Commando, Sikh received Regiment

16. lrengbam Compensation Imphal West Police Ratankumar recommended, Commando c

but not yet received.

17.

Laishram Compensation Imphal West Police Ranbir alias awarded Commando D Eshe!

18.

Laishram Pending lmpha!West Police Lincoln a/ia5 Commando Nicolson E 19.

Thokchom Compensation Imphal East Police Ranjit awarded Commando

20 lo 23.

Khular Prakash '!

BSF Lamkang + 3 others F

TABLE - III

Inquiry by Justice Santosh Hcgdc Commission

17. It may be recalled that six cases were earlier considered by a G Commission headed by Justice Santosh Hcgdc (a retired judge of this Comt) 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, fmther steps need to be taken in accordance with law. We direct the registration of F!Rs.-in these cases also.

Submissions and consideration

18. It was submitted by the learned Attorney Genernl that some of the incidents arc 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 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 acc-:ptable is that the law having been laid down by the Constitution Bench, it was the obligation of the State to have suo mo/11 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 ofManipur, surely the Government of India was under an obligation to take appropriate steps. To suggest that all the inquiries were unfair and motivated is asting 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 ofkin of the deceased had not approached this Court and there is no reason why we should ente11ain 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 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 I itigation 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

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION Of

INDIA [MADAN B. LOKUR, J.]

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 docs 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 nnfortunate deaths and 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 j urisprudencc does not permit this and we ce11ainly 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 ofticers 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 Ta111a11g v. U11io11 of llldia & 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 FIR been registered <1gainst the Manipur Police or any uniformed personnel of the armed forces of the Union. On the contrary. FJRs 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

3 (2013) 15SCC578

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 D 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 force. Accordingly, the Director of the CBI is directed to nominate a gro11p of five officers to go through the records of the cases mentioned in th~ three tables given above, lodge necessary FlRs and to E complete the investigations into the same by 31" 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 F extend full cooperation and assistance to the Special Investigating Team.

We also expect the Union oflndia 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.

G 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.

H '(IW4)Supp. I sec 143

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 381

INDIA [MADAN B. LOKUR, J.]

28. There is no doubt that the rule of law has been placed on a A pedestal ever since the time of Aristotle. More recently Dicey has also expounded on the constituents of the rule oflaw and it is now expected that all modem democratic jurisdictions accept the rule of law as the guiding light and a shield available to the people against arbitmry 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 oflaw.

29. Keeping this in mind, as well as the Universal Declaration of Human Rights, Parliament enacted the Protection oftt:uman Rights Act,

1993. The Statement of Objects and Reasons for the Protection of C Human Rights Act, 1993 is of considemble significance and accepts the importance of issues relating to human rights with a view, inter a/ia, to bring accountability and transparency in human rights jurisprudence. The Statement of Objects and Reasons reads as under:-

" I. India is a party to the International Covenant on Civil and D Political Rights and the International Covenant on Economic, Social and Cultural rights, adopted by the General Assembly of the United Nations on the 16"' 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 them, and devising efficient and effective methods of dealing with the situation.

3. Wide ranging discussions were held at various fora such as the ChiefMinisters' Conference on Human Rights; seminars organized

in various parts of the country and meetings with leaders of various G 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 H

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.

3 I. In Ram Deo Clta11ltan v. Bani Kanta Das' 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 tem1s and that these human rights are enforceable by courts in India. This is what this Colll1 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 arc 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 committed to the rule oflaw 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 Genera! 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 ve1y 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..,

'(2010) 14SCC209

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 383

INDIA [MADAN B. LOKUR, J.]

32. lt was submitted (and we agree) that the NHRC has essentially A 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 B post-mortem examination etc.

33. On 14'" December, 1993 the NHRC directed law and order agencies across the country to report matters relating to custodial deaths and mpes within 24 hours. (At that time, death in police action was classified under 'custodial deaths').

34. A couple of years later, on 1 O'" August, 1995 the NHRC sent c

a letter to all ChicfMinistcrs advising them of the necessity of introducing video-filming of post-mortem examinations from I" October, 1995 onwards to avoid distortion of facts. This was followed by another letter dated 27'" March, 1997 sent by the NHRC to all Chief Ministers recommending that all States adopt the "Model Autopsy Form" and D "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 29'" March 1997 the NHRC issued Guidelines E recommending the procedure to be followed by States and Union Territories with regard to encounter deaths. It was recommended, inter alia, that:

Deaths should be entered in an appropriate register at the Police Station; F

n. 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;

1v. Compensation to the victim's dependants should be considered in cases ending in conviction.

36. These Guidelines were revised and circulated on 2"' December, 2003 to introduce greater transparency and accountability, since the States were not regularly intimating the NHRC of encounter deaths thereby H

A 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 aiso 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-<:ompliance of the Guidelines by the States, making it necessary for the NHRC to further revise and circulate the Guidelines on 12'" 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 E 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 G 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

H rights of all us will remain only on paper.

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF

INDIA [MADAN B. LOKUR, J.]

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 ifthere is halfhearted compliance, there are unexplained delays on the part of the State 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 stall 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 - (I) Th.c Central Government shall make available to the Commissi:on -

(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 F 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.

(3) The salaries, allowaifces and conditions of service of the officers and other staff appointed under sub-secticn (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

A 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

Investigation 53 13 407% increase

Custodial Death 5496 444 1237% increase Cases

Fact Finding 1851 706 262% increase Cases

Rapid Action 120 (More

NIL 120 times Cell (RAC) than I 00 cases (started cases were after 2007) added in last three months alone).

Table-IV

EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF

INDIA [MADAN B. LOKUR, J.]

44. Considering that such a high powered body has brought out its difficulties through atlidavits and written submissions filed in this Court, we have no doubt that it has been most unfortunately reduced to a toothless tiger. We arc of the clcaropinion 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 oflndia to take note of the concerns of the NHRC and remedy them at the earliest and with a positive outlook.

45. In the context ofnon-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 arc some instances where the directions given by the NHRC for payment

of compensation have not been implemented by the State of Manipnr.

This is very unfortunate but we accept the assurance of learned senior D 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 E arise from time to time. If the people of our country arc 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 writ petitions, to State Governments to constitute a State Human Rights Commission. But, we

6 nhrc.nic .. in

A do feel it imperative to bring it to the notice ofall State Governments that it would be but a small step in the protection oflife 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 of2012-2013. 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

!. As already directed, the Director of the Central Bureau of D 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.

2. These petitions should also be listed positively in the second week of January, 20 I 8 to ensure compliance with our directions E for investigation by Central Bureau oflnvestigation.

Nidhi Jain Matter adjourned.