Supreme Court of India
DILIP K. BASUversusSTATE OF WEST BENGAL & ORS.
- Citation
- 2015 INSC 524
- Decided
- 24 July 2015
- Disposal
- Disposed off
- Bench
- T S THAKUR
Holding
Section 21 confers a duty, not merely a discretionary power, on State Governments to constitute State Human Rights Commissions, and the Court may issue mandatory directions to enforce this duty.
Summary
The Supreme Court examined petitions seeking directions to set up State Human Rights Commissions (SHRCs) in several states that had failed to do so under the Protection of Human Rights Act, 1993. The Court held that the word "may" in Section 21 of the Act does not make the power to constitute SHRCs discretionary; it is coupled with a statutory duty, especially where human rights violations are prevalent. Accordingly, the Court ordered the states of Delhi, Himachal Pradesh, Mizoram, Arunachal Pradesh, Meghalaya, Tripura and Nagaland to establish SHRCs within six months and to fill all existing and future vacancies within three months. It also directed states to specify Human Rights Courts under Section 30, install CCTV cameras in prisons (and consider them in police stations), appoint non‑official visitors to prisons and police stations, prosecute custodial deaths, and deploy at least two women constables in each police station. The petitions were disposed of with these directions.
Issues considered
- The interpretation of the word 'may' in Section 21 of the Protection of Human Rights Act, 1993 – whether it creates a discretionary power or a mandatory duty to set up State Human Rights Commissions.
- Whether states that have not established SHRCs are in violation of their statutory obligations under the Act.
- The appropriate remedial measures to ensure effective functioning of SHRCs, including filling vacancies, establishing Human Rights Courts, and enhancing oversight mechanisms such as CCTV and non‑official visitors.
Legislation cited
- Constitution of Indias. Article 21
- Indian Evidence Act, 1872s. 114-B
- Protection of Human Rights Act, 1993s. 12, s. 13(6), s. 21, s. 30
Subjects
Human RightsState Human Rights CommissionProtection of Human Rights ActCustodial tortureAccess to justiceCCTV surveillanceHuman Rights CourtsStatutory dutyVacanciesWomen constables
Judgment
[2015) 7 S.C.R. 814
A DILIP K. BASU
v.
STATE OF WEST BENGAL & ORS.
(Crl. M. P. No.16086of1997 in Crl. M. P. NO. 4201of1997)
B
JULY24, 2015
[T.S. THAKUR AND R. BANUMATHI, JJ.]
Human rights - Violation of - Instances of custodial
c deaths and torture in police station and jails -
Recommendation by Amicus Curiae to curb these -
Issuance of certain directions by this Court- States of Delhi,
Himachal Pradesh, Mizoram, Arunachal Pradesh,
Meghalaya, Tripura and Nagaland to set up State Human
D Rights Commissions(SHRC) for their respective territories
· within a period of six months- Vacant post of Chairperson or
Member of SHRC to be filled up by State Governments within
a period of three months - State Governments to take
appropriate action in terms of s. 30 in regard to setting up/
E specifying Human Rights Courts - Direction issued to State
Governments to install CCTV cameras in all the prisons
within one year - States to consider installation of CCTV
cameras in police stations- State Governments to take steps
to appoint non-official visitors to prisons and police stations
F - State Governments to launch appropriate prosecution for
the commission of offences disclosed by such enquiry report
and/or investigation -And that each police station to have at
least two women constables - Protection of Human Rights
Act, 1993-ss. 21, 30. '
G
Disposing of the petitions, the Court
HELD: 1.1 On examining the scheme of the
legislation and the provisions of s.21 of the Protection
of Human Rights Act, 1993, the following brpad features
H emerge that the Act is aimed at providing an efficacious
814
DILIPK. BASU v. STATEOFWESTBENGAL&ORS. 815
and transparent mechanism for prevention of violation A
of human..nghts both at national level as also at the state
level; ·that the National Human Rights Commission is
vested with the powers and functions set out in Chapter-
111 of comprising Sections 12 to 16 of the Act. While in
relation to State Human Rights Commissions similar B
provisions of Sections 9, 10, 11, 12, 13, 14, 15 to 18 apply
mutatis mutandis subject to certain modifications
referred to in clauses (a) to (d) of the said provision. This
implies that the powers exercisable by the State
Commissions under the said provisions are pari materia C
with the powers exercisable by the National Human
Rights Commission; and that while Section 3 does use
the word 'shall' in relation to the constitution of a National
Human Rights Commission, the absence of a similar
0
expression in Section and the use of the word 'may'
makes little difference as the scheme of the Act and the
true intention underlying the legislation is to be
determined by the Court depending upon whether the
power was coupled with a duty to exercise the same or E
was conferment of power simpliciter. [Para 13) (837-D-
H; 838-A-B]
. '
Sardar Govind Rao and Ors. v. State of Madhya Pradesh
AIR 1965 SC 1222 : 1965 SCR 678; The Official
Liquidatorv. Dharti Ohan Pvt. Ltd. 1977 (2) SCR 964: F
(1977) 2 SCC 166; N.D. Jayal andAnr. v. Union of/ndia
and Ors. 2003 (3) Suppl. SCR 152: (2004) 9 SCC 362;
Manushkhlal Vithaldas Chauhan v. State of Gujarat
1997 (3) Suppl. SCR 705: (1997) 1 sec 622;
Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur G
and Anr. 2008 (2) SCR 424: (2008) 12 SCC 372 -
referred1o:· , ·
Julius v. Bishop of Oxford (1880) 5 AC 214- referred
to. H
816 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 1.2 The power of the State Governments under
Section·21 to set-up State Human Rights Commission
in their respective areas/territories is not a power
simpliciter but a power coupled with the duty to exercise
such power especially when it is not the case of anyone
B of the defaulting States that there is no violation of
human rights in their territorial limits. The fact that Delhi
has itself reported the second largest number of cases
involving human rights cases would belie any such claim
even if it were made. It is not the case of the North-
C Eastern States where such Commissions have not been
set-up that there are no violations of Human Rights in
those States. The fact that most if not all the States are
affected by ethnic and other violence and extremist
D activities calling for curbs affecting the people living in
those areas resulting, at times, in the violation of their
rights cannot be disputed. Such occurrence of violence
and the state of affairs prevailing in most of the States
cannot support the submission that no commissions are
E required in those States as there are no human rights
violations of any kind whatsoever. [Para 15] [839-C-F]
1.3 Human rights violations in the States that are
far removed from th~ NHRC headquarters in Delhi itself
makes access to justice for victims from those States
F an illusion. While theoretically it is possible that those
affected by violation of human rights can approach the
NHRC bY. addressing a complaint to the NHRC for
redressal, it does not necessarily mean that such access
to justice for redressal of human rights violation is
G convenient for the victims from the States unless the
States have set-up their own Commissions that would
look into such complaints and grant relief. Access to
justice so much depends upon the ability of the victim
H to pursue his or her grievance before the forum
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 817
competent to grant relief. North-Eastern parts of the A
country are mostly inhabited by the tribal&. Such regions
cannot be deprived of the beneficial provisions of the
Act simply because the States are small and the setting-
up of commissions in those states would mean financial
burden for the exchequer. Even otherwise there is no B
real basis for the submission that financial constrains
prevent these States from setting-up their own
Commissions. At any rate, the provisions of Section 21 (6)
clearly provide for two or more State Governments
setting-up Commissions with a common Chairperson C
or Member. Such appointments may be possible with the
consent of Chairperson or Member concerned but it is
nobody's case that any attempt had in that direction been
made butthe same had failed on account of the persons
0
concerned not agreeing to take up the responsibility vis-
a-vis the other State. It is a matter of regret that despite
the National Human Rights Commission itself strongly
and repeatedly recommending setting-up of State
Commission in the States the same have not'been set- E
up. [Para 17, 21) [840-F-H; 841-A-D; 845-C·E).:
1.4 In terms with the recommendations of the
Amicus Curiae the following directions are issued:
(i) The States of Delhi, Himachar Pradesh, F
Mizoram, Arunachal Pradesh, Meghalaya, Tripura and
Nagaland shall within a period of six months from today
set up State Human Rights Commissions for their
respective territories with or without resort to provisions
of Section 21(6) of the 1993Act G
(ii) All vacancies, for the post of Chairperson or
the Member of SHRC wherever they exist at present shall
be filled up by the State Governments concerned within
a period of three months from today.
H
818 SUPREME COURT REPORTS [2015) 7 S.C.R.
A (iii) Vacancies occurring against the post of
Chairperson or the Members of the SHRC in future shall
be filled up as expeditiously as possible but not later
than three months from the date of such vacancy
occurs.
B
(iv) The State Governments shall take appropriate
action in terms of Section 30 of the 1993Act, in regard to
setting up/specifying Human Rights Courts.
(v) The State Governments shall take steps to
C install CCTV cameras in all the prisons in their respective
States, within a period of one year from today but not
later than two years.
(";.i) The State Governments shall also consider
installa~ion of CCTV cameras in police stations in a
0
phased manner depending upon the incidents of human
rights violation reported in such stations.
(vU) The State Governments shall consiqer
appointment of non-official visitors to prisons and police
E stations in terms of the relevant provisions of the Act
wherever they exist in the Jail Manuals or the relevant
Rules and Regulations.
(viii) The State Governments shall launch in all
cases where an enquiry establishes culpability of the
F persons in whose custody the victim has suffered death
or injury, an appropriate prosecution for the commission
of offences disclosed by such enquiry report and/or
investigation in accordance with law.
G (ix) The State Governments shall consider
deployment of at least two women constables in each
police station wherever such deployment is considered
necessary having regard to the number of women taken
for custodial interrogation or interrogation for other
H purposes over the past two years. [Paras 21, 31] [851-
DILIPK. BASU v. STATEOFWESTBENGAL.&ORS. 819
B-H; 852-A-D; 845-D) A
D.K. Basu etc. v. State of West Bengal etc. 1!96 (10)
Suppl. SCR 284: (1997) 1SCC416; JoginderKumar
v. State of U.P and Ors. (1994) 4 SCC 260; Smt. Nilabati
Behera alias Lalita Behera . v. Staie of. Orissa and B
Ors.1993 (2) SCR 581: (1993) 2 sec 746; State-o(M.P
v. Shyamsunder Trivedi and Ors. 1995 (1) Suppl.
SCR 44: (1995) 4 SCC 262; Di/ip K. Basu v. State of
WB. and Ors. 1997 (3) Suppl. SCR 219: (1997) 6 SCC
642; Dilip K. Basu v. State of WB. and Ors. (1998) 9 c
SCC 437; Di/ip Kumar Basu v. State of WB. and Ors.
(1998) 6 SCC 380; Dilip K. Basu and Ors.~ v. State of
WB. and Ors. (2002) 10 sec 741; Dilip K._B<j1su and
Ors. v. State ofWB. and Ors. (2003) 11SCC723; Dilip
K. Basu and Ors. v. State of WB. and Ors. (2003) 11 D
SCC 725; Dilip K. Basu v. State of WB. and or5: (2003)
12 SCC 174; lmtiyaz Ahmad v. State of Uttar Pradesh
and Ors. 2012 (1) SCR 779: (2012) 2 SCC 688 -
referred to. .. -
.1; E
Case Law Reference ,. ,c-
1996 (10) Suppl. SCR 284 referred to. Para 1
(1994) 4 sec 260 referred to. ··Para 1
. I
1993 (2) SCR 581 referred to. 1r1\Para 1
F
1995 (1) Suppl. SCR 44 referred to. Para 1
1997 (3) Suppl. SCR 219 referred to. .;.,....,_: Para 3
(1998) 9 sec 437 referred to. Para 3
(1998) 6 sec 380 referred to. Para 3 G
(2002) 10 sec 741 referred to. Para 3
(2003) 11 sec 123 referred to. Para 3
(2003) 11 sec 125 referred to. Para 3
(2003) 12 sec 114 referred to. Para 3 H
820 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 1965 SCR 678 referred to. Para 10
1977 (2) SCR 964 referred to. Para 10
2003 (3) Suppl. SCR 152 referred to. Para 11
1997 (3) Suppl. SCR 705 referred to. Para 11
B
2008 (2) SCR 424 referred to. Para 11
2012 (1) SCR 779 referred to. Para 16
CRIMINAL ORIGINAL JURISDICTION : Crl. M. P. No.
c 16086of1997 in Crl. M. P. No. 4201of1997.
Under Article 32 of the Constitution of India
WITH
Crl. M. P. No. 4201OF1997, 4105 OF 1999, 2600 OF
D 2000, 2601' OF 2000, 480 OF 2001, 3965, 10385 OF 2002,
12704 OF 2001, 19694of2010 in Crl. M.P. No. 4201of1997,
Crl. M.P. No. 13566of2011 in Crl. M. P. No. 16086of1997 in .
Crl. M. P. No. 4201 of 1997, Crl. M.P. No. 15490 of 2014 &
15492 of 2014 in Writ Petition (Crl.) No. 539of1986.
E
A. Mariaputham,AG, K. Radhakrishnan, Gaurav Bhatia,
Manjit Singh, Suryanarayana Singh, V. Madhukar, AAGs, Dr.
Abhishek Manu Singhvi (AC.), Pranab Kumar Mullick, Soma
Mullick, Amit Bhandari, Suruchii Aggarwal, Sushma
F Manchanda; Roshni Malhqtra, Sushma Suri, P.K. Dey, T.A.
Khan, M. Khairati, B.V. Balaram Das, S.A. Siddiqui, Gunwant
Dara, S.K. Mishra, D.S. Mahra, Ravi P. Mehrotra, Ashutosh
Kr. Sharma,::Gopal Prasad, Jayesh Gaurav, Ranjan Mukherjee,
S.C. Ghosh, S. Bhowmick, Soumi Guha, C.D. Singh, Sakshi
G Kakkar, Gopal Singh, Manish Kumar, Chandan Kumar, Ritu
Raj Biswas, Vimla Sinha, Nupur Choudhary, Vivekta Singh,
Kamal Mohan Gupta, Aruna Mathur, Yusuf Khan (for Arputham
Aruna & Co.), Riku Sarma, Navnit Kumar, Corporate Law
Group, Pragyan Pradip Sharma, Nitesh Kumar, P.V.
H Yogeswaran,Ashok Panigrahi, Santosh Kumar,Ashmi Mohan,
DILIP K. BASU v. STATE OF WEST BENGAL &ORS. 821
Guntur Prabhakar, Prema Singh, V.G Pragas~m. S.J. Aristotle, A
Prabu Ramasubramanian, Ruchi Kohli, Nidhi Jaswal, Anil
Srivastav, Pragati Neekhra, Sapam Biswajit Meitei, Ashok
Kumar Singh, Z.H. Isaac Haiding, Kh. Nobin Singh, Anip
Sachthey, Mohit Paul, Anvita Cowshish, Mohit Cowshish, Kuldip
Singh, M. Yogesh Kanna, Santha K., Bina Madhavan, S. Udaya B
Kumar Sagar, Krishan Kr. Singh, K. Enatoli Serna, Amit Kumar
Singh, Balaji Srinivasan, Asha G. Nair, Preshit Sureshe, A.P.
Mayee, K. V. Jagdishvaran, G. Indira, Ashutosh Kr. Sharma,
Jatinder Kumar Bhatia, V. N. Raghupathy, Parikshit P. Angadi, C
Abhijit Sengupta, Ajay Pal, Anil K. Jha, Ansar Ahmad
Chaudhary, Anuvrat Sharma, Balaji Srinivasan, G Prakash,
Gunnam Venkateswara Rao, Javed Mahmud Rao, K. R.
Sasiprabhu, Manish Kumar Saran, Naresh K. Sharma, Pravir
Choudhary, P. V. Dinesh, Ratan Kumar Chaudhuri, Ravi
0
Prakash Mehrotra, Sanjay R. Hegde, D. Bharathi Reddy, Sunil
Fernandes, T.C. Sharma, T. Harish Kumar, T. V. Ratnam, Indra
Sawhney, Kamini Jaiswal for the appearing parties,.
The Judgment of the Court was delivered by-
E
T. S. THAKUR, J. 1. In D. K. Basu etc. v. State of
West Bengal etc. 1 [D.K. Basu (1)] this Court lamented the
growing incidence of torture and deaths in police custody. This
Court noted that although violation of one or the other of the
human rights has been the subject matter of, several F
Conventions and Declarations and although commitments have
been made to eliminate the scourge of custodial torture yet
gruesome incidents of such torture continue unabated. The
court described 'custodial torture' as a naked violation of human
dignity and degradation that destroys self esteem of the victim G
and does not even spare his personality. Custodial torture
observed the Court is a calculated assault on human dignity
and whenever human dignity is wounded, civilisation takes a
step backwards. The Court relied upon the Report of the Royal
1 (1997) 1sec416 H
822 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Commission on Criminal Procedure and the Third Report of
the National Police Commission in India to hold that despite
recommendations for banishing torture from investigative
system, growing incidence of torture and deaths in police
custody come back to haunt. Relying upon the decisions of
·B this Court in Joginder Kumar v. State of U. P. and Ors. 2;
Smt Nilabati Behera alias Lalita Behera v. State of Orissa
and Ors. 3; State of M. P. v. Shyamsunder Trivedi and Ors. 4;
and the 1131h report of the Law Commission of India
recommending insertion of Section- 114-B in the Indian
C Evidence Act, this Court held that while the freedom of an
individual must yield to the security of the State, the right to
interrogate the detenus, culprits or arrestees in the interest of
the nation must take precedence over an individual's right to
personal liberty. Having said that the action -of the State:
0
observed this Court, must be just and fair. Using any form of
torture fQ_r extracting any kind of information would neither be
right nor just or fair, hence, impermissible, and offensive to
Article 21 of the Constitution. A crime suspect, declared the
E court, may be interrogated and subjected to sustained and
scientific interrogation in the manner determined by the
provisions of law, but, no such suspect can be tortured or
subjected to third degree methods or eliminated with a view
to eliciting information, extracting a confession or deriving
F knowledge about his accomplices, weapons etc. His
constitutional right cannot be abridged except in the manner
permitted by law, though in the very nature of things there would
be a qualitative difference in the method of interrogation of
such a person as compared to an ordinary criminal. State
G terrorism declared this Court is no answer to combat terrorism.
It may only provide legitimacy to terrorism, which is bad for the
State and the community and above all for the rule of law. Having
said that, the Court issued the following directions and
2 (1994) 4 sec 260
H 3 (1993) 2 sec 746
4 (1995) 4 sec 262
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 823
[T. S. THAKUR, J.]
guidelines in all cases of arrest and/or detention: A
"35. We therefore, consider it appropriate to issue the
following requirements to be followed in a!/ cases of
affest or detention till legal provisions are made in that
behalf as preventive measures:
B
(1) The police personnel carrying out the arrest and
handling the interrogation of the affestee should bear
accurate, visible and clear identification and name
togs with their designations. The particulars of all
such police personnel who handle interrogation of c
the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of
the arrestee shall prepare a memo of arrest at the
time of arrest a such memo shall be attested by _ D
at/east one witness who may be either a member of
the family of the affestee or a respectable person of
the locality from where the arrest is made. It shall
also be counter signed by the arrestee and shall
contain the time and date of arrest. E
(3) A person who has been arrested or detained and
is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled
to have one friend or relative or other person known
to him or having interest in his welfare being F
informed, as soon as practicable, that he has been
arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
G
(4) The time, place ofarrest and venue of custody of
an affestee must be notified by the police w~ere the
next friend or relative of the arrestee lives outside
the district or town through the legal Aid Organisation
in the District and the police station of the area H
824 SUPREME COURT REPORTS [2015] 7 S.C.R.
A concerned telegraphically within a period of 8 to 12
hours after the arrest.
(5) The person arrested must be made aware of this
right to have someone informed of his arrest or
detention as soon he is put under arrest or is
B
detained.
(6) An entry must be made in the diary at the place
of detention regarding the arrest of the person which
shall also disclose the name of he next friend of the
c person who has been informed of the arrest and the
names and particulars of the police officials in whose
custody the arrestee is.
(7) The arrestee should, where he so requests, be
D- also examined at the time of his arrest and major
and minor injuries, if any present on his/her body,
must be recorded at that time. The "Inspection
Memo" must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided
E to the arrestee.
(8) The arrestee should be subjected to medical
examination by trained doctor every 48 hours during
his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health
F Services of the concerned Stare or Union Territory.
Director, Health Services should prepare such a
penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo
G of arrest, referred to above, should be sent to the
illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his
lawyer during interrogation, though not throughout the
interrogation.
H
,,
·DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 825
[T. S. THAKUR, J.]
(11) A police control room should be provided at all A
district and state headquarters, where information
regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be B
displayed on a conspicuous notice board."
2. This Court also examined whether compensation
could be awarded and declared that pecuniary compensation
was permissible in appropriate cases by way of redressal upon c
proof of infringement of f1,mdamental rights of a citizen by the
public servants and that the State was vicariously liable for
their acts. The Court further held that compensation was
payable on the principle of strict liability to which the defence
of sovereign immunity was not available and that the citizen D
must receive compensation from the State as he/she has a
right to be indemnified by the government.
3. D.K. Basu(1) was followed by seven subsequent
orders reported in Dilip K. Basu v. State of W.8. and Ors. 5; E
Dilip K. Basu v. State ofW.B. and Ors. 6; Dilip Kumar Basu
v. State of W.B. and Ors. 7; Dilip K. Basu and Ors. v. State
of W.B. and Ors. 8; Dilip K. Basu and Ors. v. State of W.B.
and Ors. 9; Dilip K. Basu and Ors. v. State of W.B. and Ors. 10;
and Dilip K. Basu v. State of W.B. and Ors. 11 • All these orders F
were aimed at enforcing the implementation of the directions
issued in D.K. Basu(1). It is not, in our view, necessary to
refer to each one of the said orders for observations made
therein and directions issued by this Court simply show that
this Court has pursued the matter touching enforcement of the G
directions with considerable perseverance.
5 (1997) s sec 642
s (1998) 9 sec 437
1 (1998) s sec 380
8 (2002) 10 sec 141
9 (2003) 11 sec 123
1o (2003) 11 sec 125 H
11 (2003) 12 sec 174
826 SUPREME COURT REPORTS ' [2015] 7 S.C.R.
A · 4. What falls for consideration before us at present are
the prayers made in Crl.M.P. No.15492 of 2014 filed by Dr.
Abhishek Ma nu Singhvi, Senior Advocate, who was appointed
Amicus Curiae in this case. The Amicus has, in the said
application, sought further directions from this Court in terms
B of Paras 1O(A) to 10(0) of the said Crl. M. P. When the
application initially came-up for hearing before this Court on
51h August, 2014, we gave a final opportunity to the
respondents-States to respond to the prayers made in the
same. We, at the same time, requested Dr. Singhvi to identify
C areas that need attention and make _specific recommendations
for consideration of this Court based on the responses filed
by the States/Union Territories to the application filed by him.
Dr. Singhvi has accordingly filed a summary of
D recommendations, which, according to him, deserve to be
examined and accepted while concluding these proceedings
which have remained pending in this Court for the past 30 years
or so. We, therefore, propose to deal with the
.recommendations so summarised by the Amicus Curiae,
E having regard to the responses of the States filed and also the
need for giving quietus to the issues that have engaged the
attention of this Court for such a long time.
5. The Amicus has, in paras 1O(A) to 1O(B) of the
application, sought suitable directions from this Court of setting-
F up of State Human Rights Commissions in the States of Delhi,
Arunachal Pradesh, Mizoram, Meghalaya, Tripura and
Nagaland, where such Commissions have not been set-up
even after two decades have passed since the enactment of
G the Protection of Human Rights Act, 1993. The application
points out that Delhi has reported the second highest number
of human rights violation cases reported to National Human
Rights Commission (NHRC). It refers to the NHRC Curtain
Raiser published on its 201h Foundation Day, according to
H which out of a total number of 94,985 fresh cases registered
in the NHRC the largest number of cases (46, 187) came from
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 827
[T. S. THAKUR, J.]
the State of Uttar Pradesh followed by Delhi, which reported A
7,988 cases and Haryana, which reported 6,921 cases.
Despite a large number of complaints alleging violation of
human rights from the Delhi region, the Delhi Government has
not set-up a State Human Rights Commission so far. The
application further points out that Mizoram, Meghalaya, Tripura B
and Nagaland are all disturbed States with problems of
insurgency, foreign immigration, tribal warfare and ethnic
violence apart from custodial violence and deaths, which
according to the Amicus, are rampant in each one of these
States making it necessary to have a proper authority to look C
into such violations and grant redress wherever necessary.
6. Despite an opportunity granted for the purpose, the
States that haye failed to set-up Human Rights Commissions
have not come forward to offer any justification for their omission D
to do so. All that was argued by some of the counsel appearing
for the defaulting States is that the establishment of a
Commission is not mandatory in terms of Section 21 of the
Protection of Human Rights Act, 1993. It was urged that the
use of words 'A State Government may constitute a body to · E
be known as the ............... (Name of the State) Human
Rights Commission' clearly suggests that the State
Government may or may not choose to constitute such a body.
In the absence of any mandatory requirement under the Act
constitution of a State Human Rights Commission cannot, it F
was urged, be ordered by this Court in the present proceedings.
7. There is, in our opinion, no merit in the contention
I
urged on beh'alf of the defaulting States. We say so for reasons
more than one, but, before we advert to the same we wish to G
point out that Protection of Human Rights Act, 1993 symbolises
the culmination of a long drawn struggle and crusade for
protection of human rights in this country as much as elsewhere
is the world. The United Nations (UN) General Assembly in
December, 1948 adopted the Universal Declaration of Human H
828 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Rights which was a significant step towards formulating and
recognizing such rights. It was, then, followed by an International
Bill of Rights which was binding on the covenanting parties.
Since the Universal Declaration of Human Rights was not
legally binding and since United Nations had no machinery for
B its enforcement, the deficiency was removed by the UN General
Assembly by adopting in December, 1965 two covenants for
the observance of human rights viz. (i) the Covenant on Civil
and Political Rights; and (ii) the Covenant on Economic, Social
and Cultural Rights. The first covenant formulated legally
C enforceable rights of the individual while second required the
States to implement them by legislation. These covenants
came into force in December, 1976 after the requisite number
of member States ratified them. Many of the States ratified
D the Covenants subsequently at the end of 1981. These
Covenants thus become legally binding on the ratifying States
and since India is a party to the said Covenants, the President
of India promulgated the Protection of Human Rights
Ordinance, 1993 on 28th September, 1993 to provide for the
E constitution of a National Human Rights Commission, State
Human Rights Commissions in the States and Human Rights
Courts for better protection of human rights and for matters
connected therewith. The ordinance was shortly thereafter
replaced by the Protection of Human Rights Act, 1993.
F 8. In the Statement of Objects and Reasons of the
Protection of Human Rights Act, 1993 it, is inter alia, mentioned
that India is a party to the International Covenant on Civil and
Political Rights and the International Covenant on Economic,
G Social and Cultural Rights adopted by the General Assembly
of the United Nations on 16th December, 1966. It is further
stated that the human rights embodied in the said Covenants
are substantially protected by the Constitution and that there
is a growing concern about the changing social realities and
H the emerging trends in the nature of crime and violence. The
Statement of Objects and Reasons also refers to the wide
blLIP K. BASU v. STATE OF WEST BENGAL & ORS. 829 ,
[T. S. THAKUR, J.]
ranging discussions that were held at various fora such as the A
Chief Ministers' Conference on Human Rights, seminars
organized in various parts of the country and the meetings with
leaders of various political parties, which culminated in the
presentation of Protection of Human Rights Bill, 1993 that came
to be passed by both the Houses of Parliament and received B
the assent of the President on 81h January, 1994 taking
retrospective effect from 28 1h September, 1993. The
significance of the human rights and the need for their
protection and enforcement is thus beyond the pale of any
debate. The movement for the protection of such rights is not C
confined only to India alone. It is a global phenomenon. It is, in
this backdrop that the provisions of Section 21 of the Act need
to be examined. It is true that a plain reading of the provisions
may give the impression that the setting-up of a State Human
0
Rights Commission rests in the discretion of the State
Government. But a closer and more careful analysis of the
provisions contained in the Act dispel that impression. Section
21 of the Act, which deals with the setting-up of State Human
Rights Commission, is in the following terms: E
"21. Constitution of State Human Rights
Commission.-
(1) A State Government may constitute a body to be
known as the ............................. (Name of the State)
F
Human Rights Commission to exercise the powers
conferred upon, and to perform the functions assigned
to a State Commission under this Chapter.
(2) The State Commission shall, with effect from such
date as the State Government may by notification G
specify, consist of.-
(a) a Chairperson who has been a Chief Justice of a
High Court;
(b) one Member who is, or has been, a Judge of a High H
830 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Court or District Judge in the State with a minimu_m of
seven years experience as District Judge;
(c) one Member to be appointed from among persons
having knowledge of or practical experience in matters
relating /to human rights.
B
_ (3) There shall be a Secretary who shall be the Chief
Executive Officer of the State Commission and shall
exercise such powers and discharge such functions of
the State Commission as it may delegate to him.
c (4) The headquarters of the State Commission shall be
at such place as the State Government may, by
notification, specify.
(5) A State Commission may inquire into violation of
D human rights only in respect of matters relatable to any
of the entries enumerated in List II and List Ill in the
Seventh Schedule to the Constitution: Provided that if
any such matter is already being inquired into by the
Commission or any other Commission duly constituted
E under any law for the time being in force, the State
Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and·"
Kashmir Human Rights Commission, this sub-section
shall have effect as if for the words and figures "List II
-F and List Ill in the Seventh Schedule to the Constitution",
the words and figures "List Ill in the Seventh Schedule
to the Constitution as applicable to the State of Jammu
and Kashmir and in respect of matters in relation to
which the Legislature of that State has power to make
G
laws" had been substituted.
(6) Two or more State Governments may, with the
consent of a Chairperson or Member of a State
Commission, appoint such Chairperson or, as the case
H may be, such Member of another State Commission
-DILIPK. BASU v. STATEOFWESTBENGAL&ORS. 831
[T. S. THAKUR, J.]
simultaneously if such Chairperson or Member A
consents to such appointment: Provided that every
appointment made under this sub-section shall be
made offer obtaining the recommendations of the
committee referred to in sub-section (1) of section 22
in respect of the state for which a common chairman or B
member, or both, the case may be, is to be appointed."
9. A plain reading of the above would show that the
Parliament has used the word 'may' in sub-Section (1) while
providing for the setting-up of a State Human Rights c
Commission. In contrast the Parliament has used the word
'shall' in sub-Section (3) while providing for constitution of a
National Commission. The argument on behalf of the defaulting
States, therefore, was that the use of two different expressions
which dealing with the subject of analogous nature is a clear D
indication that while a National Human Rights Commission is
mandatory a State Commission is not. That argument is no
doubt attractive, but does not stand close scrutiny. The use of
word 'may' is not by itself determinative of the true nature of
the power or the obligation conferred or created under a E
provision. The legal position on the subject is fairly well settled
by a long line of decisions of this Court. The stated position is
that the use of word 'may' does not always mean that the
authority upon which the power is vested may or may not
exercise that power. Whether or not the word 'may' should be F
construed as mandatory and equivalent to the word 'shall'
would depend upon the object and the purpose of the
enactment under which the said power is conferred as also
related provisions made in the enactment. The word 'may' has
.
been often read as 'shall' or 'must' when there is something in
the nature of the thing to be done which must compel such a
G
reading. In other words, the conferment of the power upon the
authority may having regard to the context in which such power
has been conferred and the purpose of its conferment as also H
832: SUPREME COURT REPORTS [2015) 7 S.C.R.
A the circumstances in which it is meant to be exercised carry
with such power an obligation which compels its exercise. The
locus classicus on the subject is found in Julius v. Bishop of
Oxford12 where Justice Cairns, LC. observed:
"... The words 'it shall be lawful' are not equivocal. They
B
are plain and unambiguous. They are words merely
making that legal and possible which there would
otherwis'Jbe no right or authority to do. They confer a
faculty or power, and they do not of themselves do more
c than confer a faculty or power. But there may be
something Jn the nature of the thing empowered to be
done, something in the object for which it is to be done,
something in the conditions under which it is to be done,
something in the title of the person or persons for whose
D benefit the power is to be exercised, which may couple
the power with a duty, and make it the duty of the person
in whom the power is reposed, to exercise that power
when called upon to do so . ... "
. Lord Blackburn in the same case observed:
E
"I do not think the words "it shall be lawful" are in
themselves ambiguous at all. They are apt words to
express that a power is given; and as, prima facie, the
donee of a power may either exercise it or leave it
F unused, it is not inaccurate to say that, prima facie, they
are equivalent to saying that the donee may do it; but if
the object for which the power is conferred is for the
purpose of enforcing a right, there may be a duty cast
on the donee of the power, to exercise it for the benefit
G of those£ho have that right, when required on their
behalf.... "
10. A long line of decisions of this Court starting with
Sardar GoVfnd Rao and Ors. v. State of Madhya Pradesh 13
H 12 (1880) 5 AC 214
13 AIR 1965 SC 1222
91LIP K. BASU v. STATE OF WEST BENGAL & ORS. 833 v
[T. S. THAKUR, J.]
have followed the above line of reasoning and authoritatively A
held that the use of the word 'may' or 'shall' by themselves do
not necessarily suggest that one is directory and the other
mandatory, but, the context in which the said expressions have
been used as also the scheme and the purpose underlying
the legislation will determine whether the legislative intent really B
was to simply confer the power or such conferment .,, was
accompanied by the duty to exercise the same. In The Official
Liquidator v. Dharti Dhan Pvt. Ltd. 1' this Court summed up
the legal position thus :
c
"In fact it is quite accurate to say that the word ~·may" by
itself, acquires the meaning' of "must" or "shall"
sometimes. This word however, always signifies a
conferment of power. That power may, having regard to
the context in which it occurs, and the requirements D
· contemplated for its exercise, have annexed to it an
obligation which compels its exercise in a certain way
on facts and circumstances from which the obligation
to exercise it in that way arises. In other words, it is the
context which can attach the obligation to the power
compel-ling its exercise in a certain way. The context,
both legal and factual, may impart to the power that
obligatoriness. Thus, the question to be determined in
such cases always is, whether the power conferred by
the use of the word "may" has, annexed to it, an F
obligation that, on the fulfilment of certain legally
prescribed conditions, to be shown by evidence, a
particular kind of order must be made. If the statute
leaves no room for discretion the power has to be
exercised in the manner indicated by the other legal
G
provisions which provide the legal context. Even then
the facts must establish that the legal conditions are
fulfilled: A power is exercised even when ~ Court
,_
14 (1977) 2 sec 166 H
834 SUPREME COURT REPORTS [2015) 7 S.C.R.
A rejects an application to exercise it in the particular way
in which the applicant desires it to be exercised. Where
the power is wide enough to cover both an acceptance
and a refusal of an application for its exercise,
depending upon facts, it is directory or discretionary. It
B is not the conferment of a power which the word "may"
indicates that annexes any obligation to its exercise
but the legal and factual context of it."
11. So also, this Court in ND Jaya/ andAnr. v. Union
c of India and Ors. 15
interpreted the provisions of the
Environmental Protection Act, 1986 to mean that the power
conferred under the Act was not a power simpliciter, but, was
power coupled with duty. Unless the Act was so interpreted
sustainable development and protection of life under Article
D 21 was not possible observed the Court. In Manushkhlal
Vithaldas Chauhan v. State of Gujarat16 this Court held that
the scheme of the statute is determinative of the nature of duty
or power conferred upon the authority while determining
whether such power is obligatory, mandatory or directory and
--E that even if that duty is not set out clearly and specifically in the
stature, it may be implied as correlative to a right. Numerous
other pronouncements of this Court have similarly addressed
and answered the issue. It is unnecessary to refer to all those
decisions for we remain content with reference to the decision
F of this Court in Bachahan Devi and Anr. v. Nagar Nigam,
Gorakhpur and Anr. 17 in which the position was succinctly
summarized as under:
"18. It is well settled that the use of word 'may' in a
G statutory provision would not by itself show that the
provision is directory in nature. In some cases, the
legislature may use the word ·may' as a matter of pure
conventional courtesy and yet intend a mandatory force.
In order, therefore, to interpret the legal imporl of the
H 1s (2004) 9 sec 362
16 (1997) 1 sec 622
17 c2ooei 12 sec 372
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 835
[T. S. THAKUR, J.]
word 'may', the court has to consider various factors, A
namely, the object and the scheme of the Act, the
context and the background against which the words
have been used, the purpose and the advantages
sought to be achieved by the use of this word, and the
like. It is equally we/I-settled that where the word 'may' B
involves a discretion coupled with an obligation or where
it confers a positive benefit to a general class of subjects
in a utility Act, or where the court advances a remedy
and suppresses the mischief, or where giving the words
directory significance would defeat the very object of c
the Act, the word 'may' should be interpreted to convey
a mandatory force. As a general rule. the word 'mav' is
permissive and operative to confer discretion and
especially so. where it is used in juxtaposition to the
D
word 'shall'. which ordinarily is imperative as it imposes
a dutv. Cases however, are not wanting where the words
'may' 'shall'. and 'must' are used interchangeablv. In
order to find out whether these words are being used in
a directory or in a mandatory sense. the intent of the E
legislature should be looked into along with the pertinent
circumstances. The distinction of mandatory
compliance or directory effect of the language depends
upon the language couched in the statute under
consideration and its object, purpose and effect. The F
distinction reflected in the use of the word 'shall' or 'may'
depends on conferment of power. Depending upon the
context, 'may' does not always mean may. 'May' is a
must for enabling compliance of provision but there are
cases in which, for various reasons, as soon as a person G
who is within the statute is entrusted with the power, it
becomes his duty to exercise that power. Where the
language of statute creates a duty, the special remedy
is prescribed for non-performance of the duty.
H
20. If it appears to be the settled intention of the
.836 SUPREME COURT REPORTS [2015] 7 S.C.R.
A legislature to convey the sense of compulsion, as where
an obligation is created, the use of the word 'may' will
not prevent the court from giving it the effect of
Compulsion or obligation. Where the statute was passed
purely in public interest and that rights of private citizens
B have been considerably modified and curtailed in the
interests of the general development of an area or in
the interests or removal of slums and unsanitary areas.
Though the power is confeffed upon the statutory body
by the use of the word 'may' that power must be
c construe~ as a statutory duty. Conversely, the use of
the term 'shall' may indicate the use in optional or
permissive sense. Although in general sense 'may' is
enabling or discretional and 'shall' is obligatory, the
connotation is not inelastic and inviolate." Where to
D
interpret the word 'may' as directory would render the
very object of the Act as nugatory, the word 'may' must
mean 'shall'.
21. The ultimate rule in construing auxiliary verbs like
E 'may' and 'shall' is to discover the legislative intent; and
the use of words 'may' and 'shall' is not decisive of its
discretion or mandates. The use of the words 'may' and
'shall' may help the courts in ascertaining the legislative
intent without giving to either a controlling or a
F determinating effect. The courts have further to consider
the subject matter; the purpose of the provisions, the
object intended to be secured by the statute which is of
prime importance, as also the actual words employed."
G (emphasis supplied)
12. The above decision also dispels the impression
that if the Parliament has used the words "may" and "shall" at
the places in the same provision, it means that the intention
was to ma~e a distinction in as much as one was intended to
H be discretionary while the other mandatory. This is obvious
~ ·DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 837
[T. S. THAKUR, J.]
from the following passage where this Court declared that even A
when the two words are used in the same provision'the Court's
power to discover the true intention of the legislature remains
unaffected:
"22. ..... Obviously where the legislature uses iWo words
B
may and shall in two different parts of the same provision
prima facie it would appear that the legislature
manifested its intent on to make one part directory and
another mandatory. But that by itself is not decisive.
The power of court to find out whether the provision is c
directory or mandatory remains unimpaired.:'
13. When we examine the scheme of the legislation
and the provisions of Section 21 (supra) in the light of the above
principles, the follcwing broad features emerge prominently:
D
(i) that the Act is aimed at providing an efficacious and
transparent mechanism for prevention of violation of
human rights both at national level as also at the state
level;
(ii) that the National Human Rights Commission is vested E
with the powers and functions set out in Chapter-Ill of
comp.rising Sections 12 to 16 of the Protection of Human
Rights Act, 1963. While in relation to State Human Rights
Commissions similar provisions of Sections 9, 10, 10,
12, 13, 14, 15 to 18 apply mutatis mutandis subject to F
certain modifications referred to in clauses (a) to (d) of
the said provision. This implies that -he powers
exercisable by the State Commissions under the said
provisions are pari materia with the powers exercisable G
by the Natio.nal Human Rights Commission.
(iii) that while Section 3 does use the word 'shall' in
relation to the constitution of a National H.u.man Rights
Commission, the absence of a similar expression in
Section and the use of the word 'may' as observed by H
838 SUPREME COURT REPORTS [2015] 7 S.C.R.
A this Court in Bachahan Devi (supra) case makes little
difference as the scheme of the Act and the true intention
underlying the legislation is to be determined by the Court
depending upon whether the power was coupled with a
duty to exercise the same or was conferment of power
B simpliciter.
14. Time now to refer to certain other provisions of the
Act. In terms of Section 13(6) of the Act, the National
Commission is empowered whenever considered necessary
c or expedient so to do, to transfer any complaint filed or pending
before it to the State Commission of the State from which the
complaint arises for disposal in accordance with the provisions
of the Act, subject to the condition that the complaint is one
respecting which the State Commission has jurisdiction to
D entertain the same. Upon such transfer the State Commission
is competent to dispose of the matter as if complaint was
initially filed before it. The power of the State Commission, it
is noteworthy, is confined to matters enumerated in List-II and
List-Ill of the Constitution in terms of Section 21 sub-Section
E (5) extracted earlier. Significantly, Section 12 applicable to
State Commissions also provides for not only inquiries into
complaints of violation of human rights or abetment thereof
and negligence in the prevention of such violation, by a public
servant but also matters enumerated in clauses (a) to (g). the
F provision enjoins upon the State Commissions the task of
spreading human rights literacy among various sections of the
society and .,promoting awareness about the safeguards
available for the protection of those rights through publications
in the media, seminars and other available means; and to
G encourage the efforts of non-governmental organizations and
institutions working in the field of human rights; and to perform
all such other functions as may be considered necessary for
the promotion of human rights. All these functions are critical
H for the promotion and protection of human rights at the State
level. The essence of a statutory Commission will, therefore,
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 839
[T. S. THAKUR, J.]
have the effect of negating the legislative intent that human A
rights need to be promoted and protected against violations.
The State Governments cannot frustrate the objects underlying
the legislation but pleading that the legislative measure
notwithstanding they can in their discretion keep the setting-
up of the Commissions at bay. Any such contention will be B
destructive of the scheme of the Act and the promise the law
contains for the protection of the rights of the people.
15. The upshot of the above discussion that the power
of the State Governments under Section 21 to set-up'state c
Human Rights Commission in their respective areas/territories
is not a power simpliciter but a power coupled with the duty to
exercise such power especially when it is not the case of
anyone of the defaulting States that there is no violation of
human rights in their territorial limits. The fact th~t Delhi has D
itself reported the second largest number of cases involving
human rights cases would belie any such claim even if jt were
made. So also, it is not the case of the North-Eastern ~tates
where such Commissions have not been set-up that there are
no violations of Human Rights in those States. The fact that E
most if not all the States are affected by ethnic and other
violence and extremist activities calling for curbs affecting the
people living in those areas resulting, at times, in the violation
of their rights cannot be disputed. Such occurrence of violence
and the state of affairs prevailing in most of the States cannot F
support the contention that no such commissions are required
in those States as there are no human rights violations of any
kind whatsoever.
1G. There is another angle from which the matter may G
be viewed. It touches the right of the affected citizens to
"access justice" and the denial of such access by reason of
non-setting up of the Commissions. In lmtiyaz Ahmad v.
State of Uttar Pradesh and Ors. 18 this Court has declared
18 c2012) 2 sec 688 H
840 SUPREME COURT REPORTS '[201'5] 7 S.C.R.
A that access to justice is a fundamental right guaranteed under
Article 21 of the Constitution. This Court observed:
"25 .... A person's access to justice is a guaranteed
fundamental right under the Constitution and
particularly Article 21. Denial of this right undermines
8
public confidence in the justice delivery system and
incentivises people to look for short-cuts and other fora
where they feel that justice will be done quicker. In the
long run, this also weakens the justice delivery system
c and poses a threat to Rule of Law.
26. It may not be out of place to highlight that access to
justice must not be understood in a purely quantitative
dimension. Access to justice in an egalitarian
democracy must be understood to mean qualitative
D access to justice as well. Access to justice is, therefore,
much more than improving an individual's access to
courts, or guaranteeing representation. It must be
defined in terms of ensuring that legal and judicial
outcomes are just and equitable (See United Nations
E
Development Programme, Access to Justice - Practice
Note (2004)]."
17. Human rights violations in the States that are far
removed from the NHRC headquarters in Delhi itself makes
F access to justice for victims from those states an illusion. While
theoretically it is possible that those affected by violation of
human rights can approach the NHRC by addressing a
complaint to the NHRC for redressal, it does not necessarily
mean that such access to justice for redressal of human rights
G violation is convenient for the victims from the states unless
the States have set-up their own Commissions that would look
. into such complaints and grant relief. We need to remember
that access to justice so much depends upon the ability of the
victim to pursue his or her grievance before the forum
H competent to grant relief. North-Eastern parts of the country
DILIP K, Bf..SU v. STATE OF WEST BENGAL & ORS. 841
[T. S. THAKUR, J.]
are mostly inhabited by the tribals. Such regions car.not be A
deprived of the beneficial provisions of the Act simply because
the States are small and the setting-up of commissions in those
states would mean financial burden for the exchequer. Even
otherwise there is no real basis for the contention that financial
constrains prevent these States from setting-up their own B
Commissions. At any rate, the provisions of Section 21(6)
clearly provide for two or more State Governments setting-up
Commissions with a common Chairperson or Member. Such
appointments may be possible with the consent of Chairperson
or Member concerned but it is nobody's case that any attempt C
had in that direction been made but the same had failed on
account of the persons concerned not agreeing to take up the
responsibility vis-a-vis the other State. Even the NHRC had in
its Annual Report (1996-1997) suggested that if financial
0
constraint was really one of the reasons for not setting-up of
Commission in the North-Eastern Regions, the State
Governments could consider setting-up such commissions by
resorting to Section 21(6), which permits two States having
the same Chairperson or Members thereby considerably E
reducing the expenses on the establishment of such
Commissions.
18. Reference in this connection may be made to the
recommendations of the NHRC published in its Annual Report
for the year 2004-2005 where the commission observed: F
"16. 1 State Human Rights Commissions have been
set up in 151 States viz., the States ofAndhra Pradesh,
Assam, Chhattisgarh, Himachal Pradesh, Jammu &
Kashmir, Kera/a, Madhya Pradesh, Maharashtra, G
Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar
Pradesh and West Bengal. The Commission would like
to reiterate its view that the 'better protection of human
rights' can be ensured if all the States set up Human ·
Rights Commission. The Commission also H
842 SUPREME COURT REPORTS [2015] 7 S.C.R.
A emphasizes that the State Human Rights Commission
which have already been set up or are proposed to be
set up should be in compliance with the 'Paris
Principles'.
16.2 The Commission, on its part, has endeavoured to
B
assist and guide the State Commissions in whatever
manner possible, whenever requests for such
assistance or guidance has been sought. The
strengthening of the State Commissions, is an important
c agenda in the Commission's activities. With this in view;
the Commission has taken the initiative to have annual
interactions with all the State Human Rights
Commissions, where mutual discussions take place.
16.3 The first such annual meeting was held on the 30-
D 01-2004, where the agenda included coordination and
sharing of information between the SHRCs and the
Commission; training, awareness building and
substantive human rights issues. Taking forward the
initiative, the second meeting was convened on the 13-
E
05-2005. Apart from the various issues of concern
discussed in the meeting, the meeting concluded with
the adoption of the following Resolution:-
"The National Human Rights Commission and the
F State Human Rights Commissions present hereby
unanimously resolve to urge the State Governments
to:-
a) Setup, on priority, State Human Rights
Commissions where the same do not exist.
G
b) Where, there are State Human Rights
Commissions or, are in the process of being setup,
it be ensured that they are structurally and financially
independent as envisaged in and, fully confirming
H to, the principles relating to the status of national
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 843
[T. S. THAKUR, J.]
institutions (the "Paris Principles} which were A
endorsed by the UN General Assembly Resolution
481134 of 20-12-1993.
The National and State Commissions also reiterate and
remind the Governments, both, at the Centre and in
B
the States, that the primary obligation towards the
protection of human rights is that of the State and that
the national human rights institutions are for 'better
protection of human rights'.
16.4 The Commission places great importance to these
I
c
interactions especially keeping in view the social,
cultural and linguistic diversity that comprises our
society. Institutionalizing the mechanism of these
annual interactions is one way the Commission hopes
to keep up the process of dialogue. It is thus. all the D
more important that all the states expeditiously set up
human rights Commissions."
(emphasis supplied)
19.Asimilar recommendation was made in the Annual E
Report for the year 2009-2010 of NHRC. It said:
"10.1 Section 21 of the PHRA, 1993 as amended in
2006, provides for constitution of State Human Rights
Commissions (SHRCs) in all the States. The existence F
and functioning of a Human Rights Commission in the
State goes a long way in the 'better' protection and
promotion of human rights. It is now an accepted fact
that good governance and human rights go hand in
hand. The SHRCs have been set-up in 18 States. The G
names of these States are: Andhra Pradesh. Assam.
Bihar, Chhattisgarh, Gujarat, Himachal Pradesh,
Jammu & Kashmir, Karnataka, Kera/a, Madhya
Pradesh, Maharashtra, Manipur, Orissa, Punjab,
Rajasthan, Tamil Nadu, Uttar Pradesh and West H
844 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Bengal ....
10.2 The NHRC is keen that SHRCs are set-up in all
the States so that each and every citizen of the country
has easv recourse to better protection of 'human rights'
as well as for matters connected therewith or incidental
B
thereto. The Commission earnestly recommends to
all those States which have not vet constituted SHRCs
to follow suit at the earliest in the interest of ·better
protection and promotion of human rights . ... "
C (emphasis supplied)
20. Yet again, the same has been reiterated in the
Annual Report for the year 2010-2011 of NHRC in the following
words:
D "15.1 Section 21 of the Protection of Human Rights
Act, 1993 as amended in 2006, stipulates constitution
of State Human Rights Commissions (SHRCs) in all
the States. The creation of a Human Rights
Commission in all the States would definitely facilitate
·E in 'better' protection and promotion of human rights. It
is now an accepted proposition that good governance
and human rights go hand in hand. During the period
under report, SHRCs were set up in two States, namely,
Jharkhand and Sikkim, thus taking the overall total of
F SHRCs in the country to 20. Eighteen States which
already have an SHRC are Andhra Pradesh, Assam,
Bihar, Chhattisgarh, Gujarat, Himacha/ Pradesh,
Jammu & Kashmir, Karnataka, Kera/a, Madhya
Pradesh, Maharashtra, Manipur, Odisha, Punjab,
G
Rajasthan, Tamil Nadu, Uttar Pradesh and West
Bengal. At present, there is no Chairperson and
Members in the Himachal Pradesh State Human Rights
Commission except for a Secretary.
H 15.2 NHRC is keen that SHRCs are set up in every
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 845
[T. S. THAKUR, J.]
State of the country so that its inhabitants have easy A
access to better protection of human rights and justice.
The Commission once again makes an earnest appeal
to all those States which have not yet constituted
SHRCs to take action at the earliest in the interest of
better protection and promotion of human rights. In B
addition, the Commission is in constant touch with all
the SHRCs and renders technical support to them as
and when required by them."
(emphasis supplied) c
21. It is a matter of regret that despite the National
Human Rights Commission itself strongly and repeatedly
recommending setting-up of State Commission in the States
the same have not been set-up. Keeping in view the totality of
the circumstances, therefore, we see no reason why the D
recommendation made by the Amicus for a direction to the
States of Delhi, Arunachal Pradesh, Mizoram, Meghalaya,
Tripura and Nagaland shoul~ not be issued to set-up State
Human Rights Commission in their respective territories.
E
22. The other recommendation which theAmicus has
noted for issue of suitable directions relates to the filling-up of
vacancy of Chairperson and Members in several State Human
Rights Commissions. TheAmicus points out that in the States
of Manipur and Himachal Pradesh SHRC is not functional since F
post of Chairperson and several Members remains unfilled.
In the State of Jammu and Kashmir, the post of Chairperson
and one Member is vacant. In the State of Jharkhand, the
Chairperson is in position but the post of sole Member is
vacant. So also, in the State of Karnataka two Members in the G
Commission are working while the post of Chairperson and
one member remains vacant. Even in the State of Tamil Nadu
the post of Chairperson remains vacant. The Amicus states
that similar is the position in several other States also which
means that although States have set up SHRC, the same are H
846 SUPREME COURT REPORTS . [2015] 7 S.C.R.
A dysfunctional on account of non filling-up of the vacancies on
account of administrative apathy and lethargy. It was argued
bytheAmicus that dysfunctional SHRCs are as good as there
being no such Commissions at all thereby defeating the very
purpose underlying the Act and calling for a direction from this
B Court to the States concerned to fill up the existing vacancies
immediately and also to ensure that no vacancy in the SHRC
whether against the post of Chairperson or Members remains
unfilled for more than three months.
c 23. There is, in our opinion, considerable merit in the
submission made by the Amicus that the very purpose of setting
up of the State Human Rights Commission gets defeated if
vacancies that occur from time to time are not promptly filled
up and the Commission kept functional at all times. There is
D hardly any explanation much less a cogent one for the failure
of the State to take immediate steps for filling-up of the
vacancies wherever they have occurred. The inaction or
bureaucratic indifference or even the lack of political will cannot
frustrate the laudable object underlying the Parliamentary
E legislation. With the number of complaints regarding breach
of human rights increasing everyday even in cities like Delhi
which is the power centre and throbbing capital of the county,
there is no question of statutory Commissions being made
irrelevant or dysfunctional for any reason whatsoever. The
F power available to the Government to fill up the vacancies
wherever they exist is, as noticed earlier, coupled with the duty
to fill up such vacancies. The States ought to realise that the
Human Rights Commission set up by them are not some kind
of idle formality or dispensable ritual. The Commissions are
G meant to be watch dogs for the protection of the human rights
of the citizens and effective instruments for redressal of
grievances and grant of relief wherever necessary. Denial of
access to the mechanism conceptualised under the Act by
H reason of non filling up of the vacancies directly affects the
rights of the citizens and becomes non functional. It is in that
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. &47
[T. S. THAKUR, J.]
spirit that we deem it fit and proper to direct that a II vacancies A
against the post of Chairperson and Members of the State
Human Rights Commission shall be filled up by the concerned
State Governments as expeditiously as possible but, in any
case, within a period of three months from the date of this order.
We only hope and trust that we shall be spared the unpleasant B
task of initiating action against the defaulting State in case the
needful is not done within the time allotted. We also recommend
to the State Governments that since the dates on which
vacancies are scheduled to oecur are known well in advance,
(save and except where an incumbent dies in office) the C
process for appointment of the incumbents against such
vacancies should be initiated well in time in future so that no
post remains vacant in any State Human Rights Commission
for a period or unfilled for any period for more than three months
0
from the date the vacancy arises.
24. That brings us to the third recommendation that
Amicus has formulated concerning the constitution of Human
Rights Court in different districts in tenns of Section 30 of The
Protection of Human Rights Act, 1993. Section 30 of the Act · E
provides that the State Government shall specify with the
concurrence of the Chief Justice of the High Court, for each
district a Court of Session to be a Human Rights Court so that
the offences arising out of violation of human rights are tried
and disposed of speedily. It was submitted that while the State F
of Sikkim has complied with the said provision, other States
are silent in that regard. It was urged that if a small State like
Sikkim could comply with the requirement of specifying
Sessions Courts to be Human Rights Court, there was no
reason why other States cannot follow suit. There is G
considerable merit in that submission. Section 30 of the Act
stipulates that for providing speedy trial of offences arising
out of violation of human rights, the State Government, may
with the concurrence of the Chief Justice of the High Court, by H
notification, specify for each district a Court of Session to be
848 SUPREME COURT REPORTS [2015] 7 S.C.R.
A a Human Rights Court provided that if a Court of Session is
already SP:EWified as a special Court or a special Court is
already constituted for such offences under any other law for
the time ~ing in force, no such specification of a Court would
be necessary,
B
25. There is, in our opinion, no reason why the State
Governments should not seriously consider the question of
specifying human rights Court to try offences arising out of
violation of human rights. There is nothing on record to suggest
c that the Governments have at all made any attempt in this
direction or taken steps to consult the Chief Justices of the
respective High Courts. The least which the State Governments
can and ought to do is to take up the matter with the Chief
Justices of High Courts of their respective St8tes and examine
o the feasibility of specifying Human Rights Court in each district
within the contemplation of Section 30 of the Act. Beyond that
we do not propose to say anything at this stage.
26. There are, apart from .the above, few other
E recommendations made by the Amicus like installation of
CCTV Cameras in all Police Stations C!nd prisons in a phased
manner, and appointment of non-official visitors to prisons and
police stations for making random and surprise inspections.
Initiation of human proceedings Under Section 302/304 IPC
F in each case where the enquiry establishes culpability in
custodial death and framing of uniform definition of custodial
death and mandatory deployment of atleast two women
constables'. ln each district are also recommended by the
Amicus.
G 27. As regards installation of CCTV cameras in police
stations and prisons, with a view to checking human rights
abuie, it is heartening to note that all the States have in their
affidavits supported the recommendation for installation of
CCTV cameras in Police Stations and prisons. In some of the
H
DILIP K. BASU V. STATE OF WEST BENGAL & ORS. 849
[T. S. THAKUR, J.]
States, steps appear to have already been initiated in that A
direction. In the State of Bihar, CClV cameras lfllall prisons
and in 44 police stations in the State have already been
installed. So also the State of Tamil Nadu plans to equip all
police stations with CClV cameras. State of Haryana has
stated that CClV cameras should be installed in all police B
stations, especially, at the entrance and in the lockups. Union
Territories of Andaman & Nicobar and Puducherry has also
installed CClV «lam eras in most of the police stations. Some
. other States also appear to be taking steps to do so. Some of
the States have, however, remained silent and non-committal C
on the issue. We do not for the present consider it necessary
to issue a direction for installation of CClV cameras in all
police stations. We are of the opinion that the matter cannot
be left to be considered by the State Governments concerned,
0
having regard to the fact that several other State Governments
have already taken action in that direction which we consider
is commendable. All that we need say is that the State
Governments may consider taking an appropriate decision in
this regard, and appropriate action wherever it is considered E
feasible to install CClV cameras in police stations. Some of
these police stations may be located in sensitive ~teas prone
to human rights violation. The States would, therefore, do well
in identifying such police stations in the first instance and
providing the necessary safeguard against such"Violation by f
installing CClV camera in the same. The process can be
completed in a phased manner depending upon the nature
and the extent of violation and the experience oittfe past.
28. In regard to CClV cameras in prison, we see no
reason why all the States should not do so. CCTV cameras G
will help go a long way in preventing violation of human rights
of those incarcerating in jails. It will also help the authorities in
maintaining proper discipline among the inmates and taking
corrective measures wherever abuses are noticed. This can H
850 SUPREME COURT REPORTS (2015] 7 S.C.R.
A be done in our opinion expeditiously and as far as possible
within a period of one year from the date of this order.
29. That leaves us with the appointment of non-official
visitors to prisons and police stations for making random and
surprise inspection to check violation of human rights. The
8
Amicus points out that there are provisions in the Prison Manual
providing for appointment of non-official visitors to prisons in
the State. These appointments are made on the
recommendations of the Magistrate of the District in which the
c prison is situated. He urged that the provisions being salutary
ought to be invoked by the Governments concerned and non-
official visitors to prisons in police stations nominated including
independent persons like journalist. There is, in our opinion,
no real harm or danger in appointment of non-official visitors
D to prisons and police stations provided the visitors who are so
appo.inted do not interfere with the ongoing investigations if
any. All that we need say is that the State Governments may
take appropriate action in this regard keeping in view the
provisions of the Prison Manuals and the Police Acts and the
E Rules applicable to each State.
30. That leaves us with the question of initiation of
criminal proceedings in cases where enquiry establishes
culpability in custodial deaths and for deployment of atleast
F two women constables in each district. We see no reason
why appropriate proceedings cannot be initiated in cases
where enquiry establishes culpability of those in whose custody
a victim dies or suffers any injuries or torture. The law should
take its course-and those responsible duly and appropriately
G proceeded against.
31. As regards deployment of women constables all
that we need say is that the States concerned would consider
the desirability of posting women constables in the police
stations wherever it is found that over a period of past two
H
DILIP K. BASU v. STATE OF WEST BENGAL & ORS. 851
[T. S. THAKUR, J.]
years women were detained in connection with any criminal A
case or investigation. Needless to say that in case women
constables are needed in such police stations for interrogation
or detention, the State shall provide such infrastructural facilities
for such constables as are required.
s·
To sum up:
1. The States of Delhi, Himachal Pradesh, Mizoram,
Arunachal Pradesh, Meghalaya, Tripura and Nagaland
shall within a period of six months from today set up
State Human Rights Commissions for their respective c
territories with or without resort to provisions of Section
21 (6) of the Protection of Human Rights Act, 1993.
2. All vacancies, for the post of Chairperson or the
Member of SHRC wherever they exist at present shall D
be filled up by the State Governments concerned
within a period of three months from today.
3. Vacancies occurring against the post of Chairperson
or the Members of the SHRC in future shall be filled
up ~s expeditiously as possible but not later than three E
months from the date of such vacancy occurs.
4. The State Governments shall take appropriate action
in terms of Section 30 of the Protection of Human
Rights Act, 1993, in regard to setting up/specifying F
Human Rights Courts.
5. The State Governments shall take steps to in.~tall CCTV
cameras in all the prisons in their respective States,
within a period of one year from today but not later
than two years .. G
6. The State Governments shall also consider installation
of CCTV cameras in police stations in a phased
manner depending upon the incidents of human rights
violation reported in such stations. H
852 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 7. The State Governments shall consider appointment of
non-official visitors to prisons and police stations in
terms of the relevant provisions of the Act wherever
they exist in the Jail Manuals or the relevant Rules and
Regulations.
B
8. The State Governments shall launch in all cases where
an enquiry establishes culpability of the persons in
whose custody the victim has suffered death or injury,
an appropriate prosecution for the commission of
c offences disclosed by such enquiry report and/or
investigation in accordance with law.
9. The State Governments shall consider deployment of
at least two women constables in each police station
wherever such deployment is considered necessary
D having regard to the number of women taken for
custodial interrogation or interrogation for other
purposes over the past two years.
32. These petitions are, with the above directions,
E disposed of. Liberty is, however, reserved to the petitioner to
seek revival of these proceedings should there be any cogent
reason for such revival at any time in future. No costs.
Nidhi Jain Petitions disposed of.
F
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