EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) AND ANOTHERversusUNION OF INDIA & ANOTHER

                         [2013) 1 S.C.R. 140

A        EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
            ASSOCIATION (EEVFAM) AND ANOTHER
                                   v.
                   UNION OF INDIA & ANOTHER
             (Writ Petition (Criminal) No. 129 of 2012)
B                         JANUARY 4, 2013
     [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

        Constitution of India, 1950-Article 32 - Unlawful killings
C - Extra Judicial Execution - Writ petitions raising disquieting
    issues pertaining to the State of Manipur - Statement made
    that, over the years, large number of Indian citizens, have
    been killed by the Manipur Police and other security forces
    while they were in custody or in stage-managed encounters
D   or in ways broadly termed as 'extra-judicial executions' and
    that for a very long time, the State of Manipur is declared as
    "disturbed area" and is put under the Armed Forces (Special
    Powers) Act, 1958, subverting the civil rights of the citizens
    of the State and making it possible for the security forces to
E   kill innocent persons with impunity - Three member high
    powered commission appointed by Supreme Court to make
    thorough enquiry in the first six cases filed by the petitioners
    and record a finding regarding the past antecedents of the
    victims and the circumstances in which they were ki/led -
F   State Government and all other concerned agencies directed
    to hand over to the Commission, without any delay, all
    records, materials and evidences relating to the cases, as
    directed above, for holding enquiry - It will be open to the
    Commission to take statements of witnesses in connection
G   with the enquiry conducted by it and it will be free to devise
    its own procedure for holding the enquiry - In light of the
    enquiries made by it, the Commission to also address the
    larger question of the role of the State Police and the security
    forces in Manipur - Commission to also make a report

H                                 140
  EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                 141
   ASSOCIATION (EEVFAM) v. UNION OF INDIA
regarding the functioning of the State Police and security        A
forces in the State of Manipur and in case it finds that the
actions of the police and/or the security forces transgress the
legal bounds, the Commission shall make recommendations
for keeping the police and the security forces within the legal
bounds without compromising the fight against insurgency -        B
Commission to give its report within twelve weeks - Central
Government and the Government of the State of Manipur to
extend full facilities, including manpower support and
secretarial assistance as may be desired by the Commission
to effectively and expeditiously carry out the task assigned to   c
it by the Court - Matter to be put up on receipt of the report
by the Commission - Armed Forces (Special Powers) Act,
1958.
    People's Union for Civil Liberties v. Union of India and
another (1997) 3 sec 433 - referred to.                           D
                      Case Law Reference:
     (1997) 3 sec 433          referred to            Para 8
    CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)         E
No. 129 of 2012.

     Under Article 32 of the Constitution of India.

                             WITH
                                                                  F
Writ Petition (C) No. 445 of 2012.
     Menaka Guruswamy (Amicus Curiae), Paras Kuhad, ASG,
Colin Gonsalves, Jaideep Gupta, Ranjit Kumar, V. Giri, Bipin
Aspatwar, Surabhi Shukla, Raeesa Vakil, Jubli, Jyoti              G
Mendiratta, Sapam Biswajit Meitei, Ashok Kumar Singh, Neeraj
K. Sharma, Ashok Dhamija, B.K. Prasad, Khwairakpam Nobin
Singh, Shobha, Mehak for the appearing parties.
     The following Order of the Court was delivered
                                                                  H
    142        SUPREME COURT REPORTS                    [2013] 1 S.C.R.

A                                ORDER
        1. These two writ petitions, each filed under Article 32 of
  the Constitution of India, raise some disquieting issues
  pertaining to the State of Manipur. In writ petition (criminal)
8 No.129 of 2012, it is stated that, over the years, a large number
  of people, Indian citizens, have been killed by the Manipur
  Police and other security forces while they were in custody or
  in stage-managed encounters or in ways broadly termed as
  'extra-judicial executions'. In writ petition (civil) No.445 of 2012,
C it is stated that for a very long time, the State of Manipur is
  declared as "disturbed area" and is put under the Armed
  Forces (Special Powers) Act, 1958, subverting the civil rights
  of the citizens of the State and making it possible for the
  security forces to kill innocent persons with impunity.

D         2. In this order, we deal with the first writ petition, i.e., writ
    petition (criminal) No.129/2012.

        3. In this writ petition it is stated that during the period May,
  1979 to May, 2012, 1528 people were killed in Manipur in extra-
E judicial execution. The statement is mainly based on a
  memorandum prepared by 'Civil Society Coalition on Human
  Rights in Manipur and the UN' and submitted to one Christof
  Heyns, Special Rapporteur on extrajudicial, summary or
  arbitrary executions, Mission to India, 19-30 March, 2012. The
F Memorandum compiles the list of 1528 people allegedly killed
  unlawfully by the State Police or the security forces. The writ
  petitioners later on filed "Compilation 1" and "Compilation 2".
  In "Compilation 1" details are given of ten (10) cases relating
  to the killings of eleven (11) persons (out of the list of 1528); in
  "Compilation 2", similarly details are given of thirteen (13)
G cases in which altogether seventeen (17) persons (out of the
  list of 1528) are alleged to have been killed in extra judicial
  executions.

     4. A counter affidavit is filed on behalf of the State of
H Manipur. In the counter affidavit there is not only a complete
  EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                    143
   ASSOCIATION (EEVFAM) v. UNION OF INDIA
denial of the allegations made in the writ petition but there also A
seems to be an attempt to forestall any examination of the
matter by this Court. The plea is taken that the National Human
Rights Commission (NHRC) is the proper' authority to monitor
the cases referred to in the writ petition. It is stated that in regard
to all the ten (10) cases highlighted in "Compilation 1" filed by B
the petitioners, reports have been submitted to it and in none
of those cases the NHRC has recorded any finding of violation
of human rights. It is stated that the occasion for this Court to
examine those cases would arise only if it holds that the NHRC .
had failed to perform its statutory functions in safeguarding the c
human rights of the people in the State. This Court should not
examine this matter directly but should only ask the NHRC to
indicate the status of the cases listed and highlighted in the writ
petition. We are unable even to follow such a plea. The course
suggested by the State will completely dissipate the vigour and 0
vitality of Article 32 of the Constitution. Article 21 coupled with
Article 32 of the Constitution provides the finest guarantee and
the most effective protection for the most precious of all rights,
 namely, 'tt:ie right to life and personal liberty of every person. Any
 indication of the violation of the right to life or personal liberty E
would put all~ faculties of this Court at high alert to find out
 the truth and in case the Court finds that there has, in fact, been
violation of the right to life and personal liberty of any person, it
would be the Court's bounden duty to step-in to protect those
 rights against the unlawful onslaught by the State. We, therefore,
see no reason not to examine the matter directly but only F
 vicariously and second-hand, through the agency of the NHRC.

     5. A reference is next made in the counter affidavit to an
appeal pending before this Court against the judgment of the
Bombay High Court and a writ petition, also pending before this G
Court, filed by the State of Gujarat on the subject of fake
encounters and it is stated that this case should be tagged with
those other two cases to be heard together. We fail to see any
relevance of the two cases referred to in the counter affidavit
and, in our view, the plea that these two writ petitions should H
    144        SUPREME COURT REPORTS                [2013] 1 S.C.R.


A only be heard along with those two cases is meant to detract
  from consideration the grave issues raised in the writ petition.

        6. It is thirdly stated in the counter affidavit that the State
  of Manipur is faced with the menace of insurgency for many
8 years and details are given of policemen and civilians killed
  and injured by the insurgents. There are about 30 extremist
  organizations in the State out of which six are very powerful and
  they are armed with sophisticated weapons. Their aim and
  object is to secede from the Republic of India and to form an
C independent State of Manipur. For realization of their objective
  they have been indulging in violent activities, including killing
  of civilians and members of security forces. It is stated in the
  counter affidavit that during the period 2000 to October, 2012,
  105 policemen, 260 security forces personnel. and 1214
  civilians were killed; the number of injured during the same
D period is 178 for the policemen, 466 for members of security
  forces and 1173 for civilians.

       7. There is no denying that Manipur is facing the grave
  threat of insurgency. It is also clear that a number of the
E insurgent groups are operating there, some of which are heavily
  armed. These groups indulge in heinous crimes like extortion
  and killing of people to establish their hegemony. It is also
  evident from the counter affidavit filed by the State that a
  number of police personnel and members of security forces
F have laid down their lives or received serious injuries in fighting
  against insurgency. But, citing the number of the policemen and
  the security forces personnel and the civilians killed and injured
  at the hands of the insurgents does not really answer the issues
  raised by the writ petitioners.
G        8. In People's Union for Civil Liberties v. Union of India
    and another1, this Court earlier dealt with a similar issue from
    Manipur itself. In that case, it was alleged that two persons along
    with others were seized by the police and taken in a truck to a

H   1.   (1977) 3 sec 433.
   EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                    145
    ASSOCIATION (EEVFAM} v. UNION OF INDIA

distant place and shot there. In an inquiry by the District and       A
Sessions Judge, Manipur (West}, held on the direction of this
Court, the allegation was found to be correct. In that case,
dealing with question of the right to life in a situation where the
State was infested with terrorism and insurgency, this Court in
paragraphs 5 and 6 of the judgment observed as follows:               B

    "5. It is submitted by Ms S. Janani, the learned counsel for
    the State of Manipur, that Manipur is a disturbed area, that
    there are several terrorist groups operating in the State,
    that Hamar Peoples' Convention is one of such terrorist
    organizations, that they have been indulging in a number          C
    of crimes affecting the public order - indeed, affecting the
    security of the State. It is submitted that there have been
    regular encounters and exchange of fire between police
    and terrorists on a number of occasions. A number of
    citizens have suffered at the hands of terrorists and many        D
    people have been killed. The situation is not a normal one.
    Information was received by the police that terrorists were
    gathering in the house on that night and on the basis of
    that information, police conducted the raid. The raiding
    party was fortunate that the people inside the house              E
    including the deceased did not notice the police, in which
    case the police would have suffered serious casualties.
    The police party was successful in surprising the terrorists.
    There was exchange of .fire resulting in the death of the
    terrorists.                                                       F

    6. In view of the fact that we have accepted the finding
    recorded by the learned District and Sessions Judge, it
    is not possible to accede to the contention of Ms Janani
    insofar as the manner in which the incident had taken             G
    place. It is true that Manipur is a disturbed area, that there
    appears to be a good amount of terrorist activity affecting
    public order and, may be, even security of that State. It
    may also be that under these conditions, certain additional
    and unusual powers have to be given to the police to deal
                                                                      H
    146        SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A         with terrorism. It may be necessary to fight terrorism with
          a strong hand which may involve vesting of good amount
          of discretion in the police officers or other paramilitary
          forces engaged in fighting them. If the version of the police
          with respect to the incident in question were true, there
B         could have been no question of any interference by the
          court. Nobody can say that the police should wait till they
          are shot at. It is for the force on the spot to decide when
          to act, how to act and where to act. It is not for the court to
          say how the terrorists should be fought. We cannot be blind
c         to the fact that even after fifty years of our independence,
          our territorial integrity is not fully secure. There are several
          types of separatist and terrorist activities in several parts
          of the country. They have to be subdued. Whether they
          should be fought politically or be dealt with by force is a
          matter of policy for the Government to determine. The
D
          courts may not be the appropriate forum to determine
          those questions. All this is beyond dispute. But the
          present case appears to be one where two persons
          along with some others were just seized from a hut,
          taken to a long distance away in a truck and shot
E         there. This type of activity cannot certainly be
          countenanced by the courts even in the case of
          disturbed areas. If the police had information that
          terrorists were gathering at a particular place and if they
          had surprised them and arrested them, the proper course
F         for them was to deal with them according to law.
          "Administrative liquidation" was certainly not a course open
          to them."
                                                     (emphasis added)
G
        9. We respectfully reiterate what was earlier said by the
    Court in People's Union for Civil Liberties.
      10. In 1997, in the Peoples' Union for Civil Liberties this
  Court, dealing with the case of killing of two persons in Manipur
H had cautioned the State against "Administrative liquidation".
  EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                    147
   ASSOCIATION (EEVFAM) v. UNION OF INDIA
But, after 15 years in this case, we are faced with similar A
allegations on a much larger scale.

      11. For this Court, the life of a policeman or a member of
the se~urity forces is no less precious and valuable than any
other person. The lives lost in the fight against terrorism and B
insurgency are indeed the most grievous loss. But to the State
it is not open to cite the numbers of policemen and security
forces killed to justify custodial death, fake encounter or what
this Court had called "Administrative liquidation". It is simply not
permitted by the Constitution. And in a situation where the Court
finds a person's rights, specially the right to life under assault C
by the State or the agencies of the State, it must step-in and
stand with the individual and prohibit the State or its agencies
from violating the rights guaranteed under the Constitution. That
is the role of this Court and it would perform it under all
circumstances. We, thus, find that the third plea raised in the D
counter affidavit is equally without substance.

      12. Lastly, the counter affidavit, and the Supplementary
Counter Affidavit filed by the State give the State's version of
the 10 cases highlighted in the Compilation 1, filed by the          E
petitioners. But on that we would not like to make any comment
at this stage.

      13. The Union of India has also filed a separate counter
affidavit. It is a more responsible affidavit in that it does not F
evade the issues nor does it try to dissuade the Court from
examining the cases of alleged extra-judicial executions brought
to its notice by the writ petitioners. In the counter affidavit filed
by the Union, first a reference is made to different legal
provisions (Section 146 and Sections 129 to ·j 32 of the
Criminal Procedure Code, Sections 99 to 106 in Chapter IV G
of the Indian Penal Code and Section 4 of the Armed Forces
{Special Powers) Act, 1959) and it is contended that subject
to the conditions stipulated in those provisions, killing of a
person by a police officer or a member of the armed forces
                                                                      H
    148       SUPREME COURT REPORTS                 [2013) 1 S.C.R.


A   may not amount to an offence and may be justified in law. It is
    stated in the counter affidavit that all the cases listed and/or
    highlighted in the writ petition and described as extra-judicial
    executions are cases of persons who died during counter-
    insurgency operations or in performance of other lawful duties
B   by the police and the personnel of the armed forces. It is
    emphasized that in most of the cases the so-called victims might
    have been killed in the lawful exercise of the powers and/or in
    discharge of official duties by the police and the armed forces
    personnel. It is further said that "public order" and, by
c   implication, the maintenance of "law and order" are primarily
    State subjects and the role of the Central Government in
    deploying the armed forces personnel in the State is only
    supportive in aid of the law and order machinery of the State.
    The State of Manipur has the primary duty to deal with the issue
    of investigation in relevant cases, except where provided to the
0
    contrary in any other law for the time being in force. It is stated
    that the "very gloomy picture" of the State of Manipur sought to
    be presented by the writ petitioners is incorrect and misleading.
    It is asserted that Manipur is fully and completely integrated with
    the rest of the country and it is pointed out that in the 1990
E   elections the voting turnout for the 60 assembly seats in the
    State was 89.95%. Similarly, during the recent 2012 assembly
    elections, the voting turnout was 83.24%. It is added that the
    voting percentage in Manipur is amongst the highest in the
    country as a whole and it clearly shows that the people of
F   Manipur have taken active participation in the elections
    showing their full faith in the Constitution and the constitutional
    process.

        14. Coming to the issue of insurgency, it is stated in the
G   counter affidavit as under:

          "It is only a handful of disgruntled elements who have
          formed associations/ groups that indulge in militant and
          unlawful activities in order to retain their influence and
          hegemony in the society. These groups also challenge the
H
   EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                   149
    ASSOCIATION (EEVFAM) v. UNION OF INDIA

     sovereignty and integrity of the country by following aims      A
     and objectives which are secessionist in nature. It is
     emphasized that only around 1500 militants are holding a
     population of 23 lakhs in Manipur to ransom and keeping
     the people in constant fear. The root cause of militancy in
     Manipur is the constant endeavour of these insurgent            B
     groups so that they can continue to extort money and the
     leaders of such groups can continue to lead luxurious life
     in foreign countries. The tribal divide and factions in the
     society and the unemployed youth are being exploited by
     these militant outfits to fuel tension in the society.~         c
     15. It is further stated in paragraph 13 of the counter
affidavit as under:

    "It may also be submitted that the ethnic rivalries amongst
    the different tribal groups viz. Meities, Kukis and Nagas        D
    are deep-rooted and the militant groups fervently advance
    their ideologies by taking advantage of the porous
    international border with Myanmar which is 256 km long,
    heavily forested and contains some of the most difficult
    terrain. The border area is inhabited by the same tribes         E
    on either side. These tribes have family relations and for
    social interactions a free movement regime for the locals
    to move up to 16 kms on both sides is permitted. Taking
    advantage of this situation the militant outfits utilize the
    other side of the border (which is beyond the jurisdiction       F
    of the Indian Armed Forces) for conveniently conducting
    their operations of extortions/ kidnapping/ killing/ looting
    and ambushing the security forces."

      16. The counter affidavit goes on to explain that the
operations of not only the State Police but the different security   G
forces under the control of the Central Government are being
strictly monitored and kept within the parameters set out by the
different laws under which those forces operate. It is stated that
different statutory agencies acting as watchdog ensure that the
                                                                     H
    150       SUPREME COURT REPORTS                 [2013) 1 S.C.R.


A   armed forces do not overstep the Constitutional or the legal
    limits in carrying out the anti-insurgency operations.

        17. Ms. Guruswamy, the learned amicus has, on the other
  hand, presented before us tables and charts showing the
  inconsistencies in the materials produced by the State of
8
  Manipur itself concerning the 10 cases highlighted in
  "Compilation 1" filed by the petitioners. She also submitted that
  though enquiries were purported to be held by an Executive
  Magistrate in the 10 cases described in "Compilation 1", in
  none of those cases the kin of the victims came before the
C Magistrate to give their statements even though they were
  approaching the court, complaining that the victims were killed
  in fake encounters. She further pointed out that in some of the
  cases even the police/security forces personnel who were
  engaged in the killings did not turn up, despite summons issued
D by the Magistrate, to give their version of the occurrence and
  the Magistrate closed the enquiry, recording that there was
   nothing to indicate that the victims were killed unlawfully. In some
   ca~es the Magistrate, even while recording the finding that the
   case did not appear to be one of fake encounter made the
E concluding observation that it would be helpful to sensitize the
   police/armed forces in human rights. She submitted that the so-
   call ed enquiries held by the Magistrate were wholly
   unsatisfactory and no reliance could be placed on the findings
   recorded in those enquiries.
F
        18. Apart from the criticisms made by the amicus against
  the Magisterial enquiries held in the 10 cases of "Compilation
  1" it is important to note that a number of cases cited by the
  petitioners had gone to the Gauhati High Court and on the
G direction of the High Court, inquires, of a judicial nature, were
  made into the killings of (1) Azad Khan, age 12 years
  (according to the State, 15 years) (from "Compilation 1"),
  (2)Nongmaithem Michael Singh, age 32 years, (3) Ningombam
  Gopal Singh, age 39 years, (4) (i) Salam Gurung alias Jingo,
H age 24 years, (ii) Soubam Baocha alias Shachinta, age 24
    EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                     151
     ASSOCIATION (EEVFAM) v. UNION OF INDIA
 years (5) (i) Mutum Herojit Singh, age 28 years (ii) Mutum             A
 Rajen, age 22 years (6) Ngangbam Naoba alias Phulchand
 Singh, age 27 years (7) Sapam Gitachandra Singh, age 22
 years (8) (i) Kabrambam Premjit Singh, (ii) Elangbam Kanto
 Singh (9) Longjam Uttamkumar Singh, age 34 years (10)
 Loitongbam Satish @ Tomba Singh, age 34 years (11)                     B
 Thockhom lnao @ Herojit Singh, age 31 years, (12)
 Khumallambam Debeshower Singh (13) (i) Km. Yumnam
 Robita Devi (ii) Angom Romajitn Singh (14) Thoudem
 Shantikumar Singh (all from "Compilation 2").

       19. In all those cases the judicial inquiry found that the       C
  victims were not members of any insurgent or unlawful groups
· and they were killed by the police or security forces in cold blood
  and stage-managed encounters.

       20. It is stated on behalf of the petitioners that though it     D
 was established in the judicial enquiry that those persons were
 victims of extra-judicial executions, the High Court simply
 directed for payment of monetary compensation to the kins of
 the victims. Learned Counsel for the petitioners submitted that
 payment of rupees two to four lakhs for killing a person from          E
 funds that are not subjected to any audit, instead of any
 accountability for cold blooded murder, perfectly suits the
 security forces and they only get encouraged to carry out further
 killings with impunity.

        21. On a careful consideration of the averments made in         F
 the writ petition and the counter affidavits filed by the
 respondents and on hearing Ms Guruswamy, the amicus, Mr.
 Gonsalves the learned counsel appearing for the writ
 rt!:!titioners, Mr. Kuhad, the Additional Solicitor General
 appearing for the Union of India, Mr. Ranjit Kumar, senior             G
 advocate appearing for the State of Manipur and Ms. Shobha,
 advocate appearing for the NHRC, we find it impossible to
 overlook the matter without further investigation. We are clearly
 of the view that this matter requires further careful and deeper
 consideration.                                                         H
    152        SUPREME COURT REPORTS               (2013] 1 S.C.R.

A       22. The writ petitioners make the prayer to constitute a
  Special Investigation Team comprising police officers from
  outside Manipur to investigate the cases of unlawful killings
  listed in the writ petition and to prosecute the alleged offenders
  but at this stage we are not inclined to appoint any Special
B investigation Team or to direct any investigation under the Code
  of Criminal Procedure. Instead, we would first like to be fully
  satisfied about the truth of the allegations concerning the cases
  cited by the writ petitioners. To that end, we propose to appoint
  a high powered commission that would tell us the correct facts
c in regard to the killings of victims in the cases cited by the
  petitioners. We, accordingly, constitute a three-member
  commission as under:

          1.    Mr. Justice N. Santosh Hegde, a former Judge of
                the Supreme Court of India, as Chairperson
D
          2.    Mr. J. M. Lyngdoh, former Chief Election
                Commissioner, as Member

          3.    Mr. Ajay Kumar Singh, former DGP and IGP,
                Karnataka.
E
       23. We request the Commission to make a thorough
  enquiry in the first six cases as detailed in "Compilation 1", filed
  by the petitioners and record a finding regarding the past
  antecedents of the victims and the circumstances in which they
F were killed. The State Government and all other concerned
  agencies are directed to hand over to the Commission, without
  any delay, all records, materials and evidences relating to the
  cases, as directed above, for holding the enquiry. It will be open
  to the Commission to take statements of witnesses in
G connection with the enquiry conducted by it and it will, of course,
  be free to devise its own procedure for holding the enquiry. In
  light of the enquiries made by it, the Commission will also
  address the larger question of the role of the State Police and
  the security forces in Manipur. The Commission will also make
H a report regarding the functioning of the State Police and
   EXTRA JUDICIAL EXECUTION VICTIM FAMILIES                   153
    ASSOCIATION (EEVFAM) v. UNION OF INDIA
security forces in the State of Manipur and in case it finds that    A
the actions of the police and/or the security forces transgress
the legal bounds the Commission shall make its
recommendations for keeping the police and the security forces
within the legal bounds without compromising the fight against
insurgency.                                                          B
     24. The Commission is requested to give its report within
twelve weeks from today.

     25. The Central Government and the Government of the
State of Manipur are directed to extend full facilities, including   C
manpower support and secretarial assistance as may be
desired by the Commission to effectively and expeditiously
carry out the task assigned to it by the Court.

    26. The Registry is directed to furnish a copy of this order     D
and complete sets of briefs in both the writ petitions to each of
the members of the Commission forthwith.

     27. Put up on receipt of the report by the Commission.
                                                                     E .
B.B.B.                                          Matter pending.
          \