Full Text
WRIT PETITION (CRL.) NO. 129 OF 2012
Extra Judl. Exec. Victim Families Assn. & Anr. ….Petitioners
JUDGMENT
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 8th July, 2016[1] 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 necessitates a thorough enquiry into the incident. We were of opinion that
W.P. (Crl.) No. 129 of 2012 etc. 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 │ │ 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 │ └─────────────────────────────────────────────────────────────────────────────────────────────┘
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 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:
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 (31-03-2015) Previous (31-3-1995) % Increase/decrease Sanctioned Staff 49** 59* - 16.94%* decrease in staff strength Total complaints received annually 1,14,167 7843 1455% increase Investigation 53 13 407% increase Custodial Death Cases 5496 444 1237% increase Fact Finding Cases 1851 706 262% increase Rapid Action Cell (RAC) cases (started after
2007) 120 (More than 100 cases were added in last three months alone). NIL 120 times 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 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 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.
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