Supreme Court of India
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2017 INSC 620
- Decided
- 14 July 2017
- Disposal
- Hearing Adjourned
- Bench
- MADAN B LOKUR
Holding
The Court held that the petition is maintainable, the State must investigate the alleged fake encounters irrespective of delay, compensation does not preclude inquiry, and an independent CBI‑led Special Investigating Team must be constituted to register FIRs and investigate the identified cases.
Summary
The Supreme Court entertained a public‑interest writ filed by Victim Families Association on behalf of relatives of 1,528 alleged fake‑encounter victims in Manipur, holding that third‑party petitions are maintainable where access to justice is denied. It ruled that the State must investigate alleged extrajudicial killings irrespective of the lapse of time and that payment of compensation does not extinguish the need for criminal inquiry. The Court rejected the contention that the Manipur Police could investigate the cases, directing an independent Special Investigating Team of the CBI to register FIRs and complete investigations by 31 December 2017. It emphasized the duty of the Union and State governments to implement NHRC guidelines under the Protection of Human Rights Act, 1993, and urged all states to constitute State Human Rights Commissions. The petition was allowed with detailed directions for investigation, compliance with NHRC recommendations, and periodic reporting.
Issues considered
- Whether a public‑interest petition filed by a third party on behalf of victims of alleged fake encounters is maintainable under Article 32.
- Whether the State is obligated to investigate alleged fake‑encounter killings despite the passage of time.
- Whether the payment of compensation to victims' families obviates the need for further criminal investigation.
- Whether the Manipur Police can be part of the investigating team or an independent agency is required.
- Implementation and enforcement of NHRC guidelines under the Protection of Human Rights Act, 1993.
- Whether states are required to constitute State Human Rights Commissions.
Legislation cited
- Commissions of Inquiry Act, 1952
- Constitution of Indias. Art.21, s. Art.32
- Protection of Human Rights Act, 1993s. 11, s. 21
Subjects
fake encounterpublic interest litigationhuman rightsNHRCCBI investigationcompensationaccess to justiceManipurexcessive forcespecial investigating team
Judgment
[2017] l 1 S.C.R. 363
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. & ANR. A
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 129 of 2012)
JULYl4,2017 B
[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.]
Constitution oflndia -Art.21 and 32- Fake encounter killings
- Use of excessive Jl>rce or retaliulo(V force b.v police personnel
and perso1111el in uniform of the armedforces in the State of Manipur
- Wiit petition alleging that I 528 persons killed in fake encounters
c
- Documentation found inadequate to order any inquiry into
allegations made - issuance of direction lo complete the
documen/ation - information collected with regard to 655 deaths
out of i 528 alleged. wherein deaths were investigated by
Commissions of inquiry, Judicial Inquiries, High Court, NHRC. and D
Justice Santosh Hegde Commission and registration of FIRs was
directed in these complaints - Issuance of direction to CBI lo
constitute a Special Invesligation Team lo investigate the alleged
ex/ra judicial killings in Manipur - Officers of the Manipur Police
not associaled with Special Invesligaling Team, since in some of /he
E
cases the role of the Manipur Police itself has been adversely
con1111e11ted upon.
Administration of Justice - Fake encounter killings - Petition
al the instance of third party, next of the kin having lhemse/ves
given a quietus to the incidents - Maintainability of-Held: It cannot
be said that the Court cannot take up the issue at the instance of a F
third parzv - Access to justice is certainly a human right and it has
been given a special place in the constitutional scheme where free
legal aid and advice is provided to a large number of people in the
co11111ry - To provide access to justice to every citizen and to make
it meaning(td. lhis Court has evolved its public interest jurisprudence G
- In the instant petitions, the next of kin could not access justice in
the local courts and the petitioners took up their cause in public
interest - Constitutional j11rispn1dence does not permit to shut the
door on such persons and the constitutional obligation requires to
give justice a11d succour to the next of kin of the deceased.
H
363
364 SUPREME COURT REPORTS [2017] 11 S.C.R.
A ('01n11e11:•;ation - l·'ake encounter killing.r,· - ("on11Jensation,
whether an appropriate relief - Held: Compensation having bee11
paid lo the next of kin fiJr the unfortunate deaths, it ca1111ot he said
that it may be 110/ necessaty to proceed further in the matter -
c:o11111e11sation has been lll1'£1r,ietf tu the next of kin for the agon.v
they have sujfeted and ro enable them lo immediately tide over their
B
loss and jiJr thrir relwbilitution - This cannot override the law of
the land. othe1twise all heinous crimes would gel sellled through
payment of moneta1y compensation - Constillllional jurisprudence
does not pern1it this and certain/)' cannot encourage ur countenance
such a vie-iv.
c Delay/Laches - Fake encounter killings - Some of the
incidents of considerable vintage - Re-opening of the issues .fur
investigation - Held: Crime which involves the death of a person
who is possibly in11ocent, ca1111ot be 01•er-looked only because of' a
lapse c!f' time - It was the obligation of the State to have suo motu
D conducted a thorough inqui1y at the appropriate time and soon
after each incide11/ look place - Merely because the State has not
1ake11 any action and has allowed rime to go by, it cannot take
tu/vantage of the clela,,v to .\-cuttle an inquiry.
Protection of Huma11 Rights Act, 1993 - Natio11al Human
E Rights Commission - lmple111e11tatio11 of its communications a11d
Guide/i11es - Plea of NHRC that there should be implementation of
its communicat/011s a11d Guidelines, enforceme11t of the orders passed
by it and necessary provision for its effective fi111ctioni11g - Held:
Intention of the NHRC is to 111ore effectively assist the crimiolc1ljustice
delive1y system and avoid anyji1ctual controversies while reopecting
human rights - Unless the communicatio11s and G11ideli11es laid down
by the NHRC are adhered lo, the respect and dignity due to the
dead and the hu111an rights of all will remain only on paper - Request
111ade by NHRC to be expeditiously and favourably respected and
considered by the Union of' India for the effective fimctioning of
G NHRC - Issuance of direction to Union of India to take note of the
concerns of' the NHRC and remedy them at the earliest.
Adjourning the matter, the Court
HELD: 1.1 The submission that some of the incidents are
of considerable vintage and at this point of time it may not be
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 365
INDIA
appropriate to re-open the issues for investigation, cannot be· A
accepted. If a crime has been committed, a crime which involves
the death of a person who is possibly innocent, it cannot be over-
looked only because of a lapse of time. It was the obligation of
the State to have .mo 1110/u conducted a thorough inquiry at the
appropriate time and soon after each incident took place. Merely
B
because the State did not taken any action and allowed the time
to go by, it cannot take advantage of the delay to scuttle an inquiry.
[Para 18][378-A-C]
_ 1.2 The submission that there were local pressures and
the ground level situation was such that it would not be surprising
ff the inquiries were biased in favour of the citizens and against C
. the State, is rejected. If there had been a break-down of the rule
of law in the State of Manipur, surely the Government of India
was under an obligation to take appropriate steps. To suggest
that all the inquiries were unfair and nwtivated is casting very
serious aspersions on the independence of the authorities in D
Manipur at that point of time, is not at all warranted. (Para 1911378-
D-EJ
1.3 The submission that in many instances the next of kin
of the deceased had not approached this Court and there is no
reason why this Court should entertain a petition tiled by a third
party, is rejected. Access to justice is certainly a human right and
E
it has been given a special place in the constitutional scheme
where free legal aid and advice is provided to a large number of
people in the country. The primary reason is that for many of the
deprived sections of society, access to .justice is only a dream. To
provide access to justice to every citizen and to make it F
meaningful, this Court has evolved its public interest
jurisprudence where even letter-petitions .are entertained in
appropriate cases. The hislory of public interest litigation over
the years has settled tha~ the deprived sections of society and
the downtrodden such as bonded labourers, trafficked women,
homeless persons, victims of natural .disasters and others can G
knock on the doors of the constitutional courts and pray for justice.
This is precisely what has happened in the instant petitions where
the next of kin conld not access justice even in _the local courts
and the petitioners have taken up their cause in public interest.
H
366 SUPREME COURT REPORTS [2017] ll S.C.R.
A The constitutional jurisprudence docs not permit to shut the door
on such persons and the constitutional obligation requires to give
justice and succour to the next of kin of the deceased. [Paras
20-21][378-F-H; 379-A-B) •
1.4 The submission that compensation has been paid to
B the next of kin for the unfortunate deaths and therefore, it may
be not necessary to proceed further in the matter, cannot be
accepted. Compensation has been awarded to the next of kin for
the agony they have suffered and to enable them to immediately
tide over their loss and for their rehabilitation. This cannot
override the law of the land, otherwise all heinous crimes would
c get settled through payment of monetary compensation. The
constitutional jurisprudence docs not permit this and certainly
cannot encourage or countenance such a view. [Para 2211379-C-
D]
l.5 As far as the appointment of a Special Investigating
D Team is concerned, it was suggested that officers of the Manipur
Police may be associated. It is not appropriate to associate any
officer of the Manipur Police particularly since in some of the
cases the role of the Manipur Police itself has been adversely
commented upon. There is no hesitation in directing the
E constitution of a Special Investigating Team to investigate the
cases. In none of the cases has an FIR been registered against
the Manipur Police or any uniformed personnel of the armed forces
of the Union. On the contrary, FIRs have been registered against
the deceased for alleged violations of the law. Under these
circumstances, it would be inappropriate depend upon the
F Manipur Police to carry out an impartial investigation more
particularly when some of its own personnel are said to be
involved in the fake encounters and the Manipur Police has not
registered any FIR at the instance of the next of the kin of the
deceased. More appropriate course of action would be to appoint
G an independent investigating team to examine the said cases.
[Paras 23-2511379-D-H; 380-A-C]
1.6 It would ·be appropriate if the Central Bureau of
Investigation (or the CBI) is required to look into these fake
encounters or use of excessive or retaliatory force. The Director
of the CBI is directed to nominate a group of five officers to go
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF "167
INDIA
through the records of the cases mentioned in the three tables A
given lodge necessary FIRs and to complete the investigations
into the same by 31" December, 2017 and prepare charge sheets,
wherever necessary. The entire groundwork has already been
done either by the Commissions of Inquiry or by a Judicial Inquiry
or by the Gauhati or Manipur High Court or by the NHRC. It is
B
left to the Special Investigating Team to utilize the material already
gathered, in accordance with law. The State ofManipur is expected
to extend full cooperation and assistance to the Special
Investigating Team. The Union of India is expected to render
full assistance to the Special Investigating Team to complete the
investigation at the earliest without any unnecessary hindrances c
or obstacles. [Para 26][380-D-FJ
1. 7 The Director of the Central Bureau of Investigation
would nominate a team and inform this Court of its composition
within two weeks, as also any other requirement. These petitions
should also be listed within the stipulated period to ensure D
compliance with the directions for investigation by Central Bureau
of Investigation. [Para 48)(388-D-E]
2.1 Under the provisions of the Protection of Human Rights
Act, 1993 the NHRC has been constituted as a high-powered
statutory body whose Chairperson is and always has been a retired E
Chief Justice of India. Amongst others, a retired judge of the
Supreme Court and a retired Chief Justice of a High Court is and
has always been a member of the NHRC. The NHRC has
essentially four roles to play, namely that of protector, advisor,
monitor and educator of human rights. It is in this capacity that
the NHRC as a protector and monitor of human rights through F
effective investigations has issued guidelines from time to time
with regard to various aspects including reporting of matters
relating to custodial death and rape, videography of post-mortem
examination etc. [Paras 30, 32][381-H; 382-A-Bl
2.2 The submission by the NHRC that all its communications G
and Guidelines have remained only on paper and arc not enforced
by any State Government; and that to ensure that good quality
reports arc available, the Guidelines need to be strictly enforced
is accepted. It is made clear that the intention of the NHRC is to
more effectively assist the criminal justice delivery system and
H
368 SUPREME COURT REPORTS (2017] I I S.C.R.
A avoid any factual controversies while respecting human rights. It
L~ not as if" the dignity of only living persons needs to be respected
but even the dignity of the dead must be given due respect. Unless
the communications and Guidelines laid down by the NHRC (which
have been prepared after wide ranging and detailed consultations)
arc adhered to, the respect and dignity due to the dead and the
B
human rights of all will remain only on paper. [Para 38][384-F-Hl
2.3 It is quite clear from the reading of s. 11 of the Protection
of Human Rights Act, 1993 that the Central Government is under
an obligation {'shall make available') to provide adequate officers
and staff so that the NHRC can perform its functions efficiently.
c The difficulties faced by the NHRC due to inadequate officers
and staff and something to worry about from a human rights
perspective. [Para 41][385-H; 386-A)
2.4 Considering that such a high powered body-NHRC has
brought out its difficulties through affidavits and written
submissions filed in this Court, there is no doubt that it has been
D
most unfortunately reduced to a toothless tiger. Any request made
by the NHRC in this regard must be expeditiously and favourably
respected and considered by the Union of India otherwise it would
become impossible for the NHRC to function effectively and would
also invite avoidable criticism regarding respect for human rights
E in the country, The Union of India is directed to take note of the
concerns of the NHRC and remedy them at the earliest and with
a positive outlook. [Para 44[[387-A-Bl
2.5 In the context of non-compliance of the orders of the
NHRC, it has also been brought by the NHRC that the directions
issued by it for payment of com11ensation to victims of violation
F
of human rights are sometimes not adhered to. There are some
instances where the directions given by the NHRC for payment
of compensation have not been implemented by the State of
Manipnr. This is very unfortunate but the assurance of counsel
appearing for the State of Manipur is accepted that the
G compensation awarded by the NHRC will soon be paid to the
next of kin of the deceased. All State Governments are expected
to abide by the directions issued by the NHRC in regard to
compensation and other issues as may arise from time to time. If
the people of the country are deprived of human rights or cannot
have them enforced, democracy itself would be in peril.
H [Paras 45-461(387-C-E)
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 369
INDIA
2.6 It is confirm~d from the website of the NHRC that all A
States do not have Human Rights Commissions. While the
Protection of Human Rights Act provides for the constitution of
a State Human Rights Commission u/s. 21 of the Act, it is not
made mandatory. However, the provisions of Part III of the
Constitution particularly the essence of Article 21 docs require B
every State to constitute a State Human Rights Commission, but
it is not appropriate to issue any such direction, particularly in
the instant writ petitions. But, it is felt imperative to bring it to
the notice of all State Governments that it would be but a small
step in the protection of life and liberty of every person if a State
Human Rights Commission is constituted at the carliest.[Para C
471[387-F-H)
2. 7 Disappointment is expressed on the failure of the NHRC
to bring out its Annual Reports; A perusal of the website of the
NHRC brings out that the latest Annual Report is of 2012-2013.
Several years have gone by since then, but no Annual Report has D
been published"therc is no idea what is the stage of preparation
or consideration of the subsequent Annual Reports. Th'ere is hope
that given the importance of human rights, the Annual Reports
of the NHRC would be made available with due expedition. [Para
48)(388-B-CI
E
Naga Peoples Movement of Human Rights v. Union of
India. (1998) 2 SCC 109 : [1997] 5 Suppl. SCR 469;
Bharati Tamang v. Union of India & Ors. (2013) 15
SCC 578 : [20131 14 SCR 525; R.S. Sodhi v. State of
UP. (1994) Suppl. 1 SCC 143; Ram Deo Chauhan v.
Bani Kanta Das (2010) 14 SCC 209 - referred to. F
Case Law Reference
[1997] 5 Suppl. SCR 46~ referred to Para 1
[20131 14 SCR 525 referred to Para 24
(1994) Suppl. 1 sec 143 referred to Para 25 G
(2010) 14 sec 209 referred to Para 31
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 129 of2012.
H
370 SUPREME COURT REPORTS (2017] 1 l S.C.R.
A Under Article 32 of the Constitution of India
WITH
W. P. (Crl.) No. 445 of2012.
Dr. Mcnaka Guruswamy, Govind Manoharan,Amicus Curies.
Mukul Rohatgi, AG, Colin Gonsalves, Mrs. V. Mahana, V. Giri, Sr.
B Advs., Ms. Jyoti Mendiratta, Ms. Olivia Bang. Warcppam Basantakumar,
Ashok Kumar Singh, R. Bala, Sunil J. Mathews, M.K. Maroria. Rajiv
Nanda, Ms. Binu Tamta. B.K. Prasad, Prabhas Bajaj, Pranav Kumar,
Rohit Rathi, Ms. Sabah Iqbal Siddiqui, Sw1il Methoo, Ms. AnanyaMishra,
P.K. Dey. Pankaj Pandey, Himanshu Shckhar, Narcsh Kumar Gaur,
Niranjan Saanasam, Manav Vohra, Svadha Shankar, Rana Ranjit Singh,
c Ravish Singh, Satya Mitra, Ms. Mrinmayce Sahu, Ms. Pinky Behcra,
Ms. Shobha, Bonny Mehra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MADAN B. LO KUR, J. I. In the present petitions, the allegation
was that 1528 pe1sons had been killed in fake encounters by police
D personnel and personnel in uniform of the armed forces of the Union.
By our j udgmcnt and order dated g•h July, 2016' we respectfully followed
the view laid down by a Constitution Bench of this Court inNaga People'.1·
.Mo1•e111ent of Human Rights v. Union of India.' The Constitution
Bench held that an allegation of use of excessive force or retaliatory
E force by uniformed personnel resulting in the death of any person
necessitates a thorough enquiry into the incident. We were of opinion
that even the 'Dos and Don'ts' and the 'Ten Commandments' of the
Chief of Army Staff believe in this ethos and accept this principle.
However, atlcr considering the submissions at law. we found that the
documentation was inadequate to immediately order any inquiry into the
F allegations made by the petitioners and therefore directed them to complete
the documentation indicating whether the allegations were based on any
judicial enquiry or an enquiry conducted by the National Human Rights
Commission or an cnqt1i1y conducted under the Commissions of!nqui1y
Act, 1952.
G 2. A tabular statement has since been filed by learned counsel for
the petitioners and this statement has been accepted by learned Amicus
and no objection was raised by the Union of India or by the State of
Manipur. We therefore proceed on the basis of the tabular statement
before us.
1 (2016) 14 sec 578 (2J
H 1 (1998)2 sec 109
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 371
INDIA [MADAN B. LOKUR, J.]
3. The petitioners have been able to gather information with regard A
to 655 deaths out of 1528 alleged in the writ petitions. The break-up is as
follows·
SI. No. PARTICULARS No. of cases
I. Commission of Inquiry cases 35 B
2. Judicial Inquiry and High Court cases 37
3. NHRC cases 23
4. Cases with written complaint 170 c
5. Cases with oral complaint 78
6. Cases with eye witnesses 134
7. Family claimed cases 178 D
Total number 655
4. We have perused the tabular statement given with regard to
cases with written complaints, oral complaints and eye-witness accounts
as well as family claimed cases but find that apmi from a simple allegation E
being made, no substantive steps appear to have been taken by either
lodging a First lnfonnation Report (FIR) or by filing a writ petition in the
concerned High Cow·t or making a complaint to the National Human
Rights Commission (NHRC). The allegations being very general in
nature, we do not think it appropriate to pass any direction for the time F
being in regard to the cases concerning these written complaints, oral
complaints, cases with eye-witness accounts and family claimed cases.
It. is not that every single allegation must necessarily be inquired into. It
must be remembered that we arc not dealing with individual cases but a
systemic or institutional response relating to constitutional criminal law.
Deaths investigated by Commissions of Inquiry G
5. With regard to 35 deaths dealt with in reports given by
Commissions constituted under the Commissions of Inquiry Act, 1952
we find that two of the deaths: in respect ofL.D. Rengtuiwan and N.
Sanjita Devi were not mentioned in the writ petition. We pass no orders
in respect of these two cases. H
372 SUPREME COURT REPORTS [2017) ll S.C.R.
A 6. As far as the death ofThangjam Manorama is concerned, the
issues are pending in this Court in Civil Appeal Nos. 65-69of2015 and
therefore we make no comment in this regard.
7. As far as the remaining 32 deceased victims are concerned,
we find that independent Commissions of Inquiry have made adverse
B comments against personnel of the Manipur Police and the Central
Reserve Police force (as the case may be) for the use of excessive
force or retaliatory force. In our opinion, more than a prima facie case
is made out for lodging an FIR in the appropriate police station in respect
of the death of these 32 persons. We direct the registration ofF!Rs in
these cases. The clctails of 'Commissions oflnquiry Cases' arc given
c below in Table-I.
COMMISSIONS OF INQUIRY CASES
SI.No. NAME OF VICTIM NOTIFICATION UNIT
DATE
D (Total= 35)
I. L. D. Rcngtui wan 16.03.2005 Not in WP
2. Thangjam Manorama '! Pending in
SC
E
3. N. Sanjita Devi 00.12.2003 Not in WP
4 to 14. Amom Rajan Mcitci 04.07.2001 CRPF
and l 0 others
15 to 19. Major Shimareingam '! Manipur
F Shaiza and 4 others Police
20to21. Thoudam Munindro 27.12.1996 Manipur
Singh and another Police
22. Oinam Ongbi Amina 06.04.1996 CRPF
G Devi
23 to 35. Angom Raghumani 15.06.1985 CRPF
Singh and 12 others
TABLE-I
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 373
INDIA [MADAN B. LOKUR, J.]
Deaths considered by Judicial Inquiries and High Court A ,
8. With regard to the 'Judicial Inquiry and High Court cases' the
Gauhati High Court had entertained writ petitions into allegations of the
death of as many as 37 persons in fake encounters through the use of
excessive or retaliatory force and in some cases ordered a judicial enquiry.
9. Two writ petitions are still pending in the High Court and we B
request Hon'blc the Chief Justice ofthe concerned High Court (whether
it is the Gauhati High Court or the Manipur High Court) to expeditiously
dispose of the writ petitions if they have not already been disposed of.
I 0. One writ petition [W.P. (Criminal) No.103 of2009] has been
dismissed meaning thereby that the High Comt found no substance in c
the pllcgations made and therefore this case may be treated as closed.
11. There is no specific information with regard to two other writ
petitions and we leave it to the investigating team that we propose to
appoint to ascertain the correct factual position.
D
12. With regard to the remaining writ petitions, the High Court
has awarded compensation to the next of kin of the deceased meaning
thereby that more than a prima facie case has been found of a fake
encounter or the use of excessive or retaliatory force contrary to the
decision of the Constitution Bench of this Court. We direct the registration
of FIRs in these cases. The details of these writ petitions arc given E
below in Table - JI.
.
JUDICIAL INQUIRY & HIGH COURT CASES
S. No. Na1neofVictim Ca.cNo. Result Unit
(fotal=37) F
.
lto3. Moirantern lbtu.1go + W.P. (C)No. Pending. Manipur
2 others 92 of2013. Polict,
Assam Rifles
4. Athokpam W.P. (Crl .) No. Co"l'ensati oo Manipur
G
Angousana Meitei l08of201 I awarded Police
5. Leishangthem W.P. (C1l.) No. Co"l'ensati oo Manipur
Santosli 40 of20(1) awaided Police
H
374 SUPREME COURT REPORTS [2017] ll S.C.R.
A
6. Sorensangbam W.P. (Cr!.) No. Dismissed Manipur
Sanayaima 103 of2009 Police
7. Ningthoujam W.P. (C) Xo. Compensatioo BSF
Thokch:ao Singh 75 of2008 awarded
B S. Ningthoujam Binoy W.P. (Cr!.) l\o. Compcnsauon Manipur
alias Khaiba Singh 25 of2009 awarded Police
9. Sagolsem Vikram W.P. (Cr!.) No. Compensatioo Assam
Singh 5 of2007 awarded Rifles
10. Pheiioijam W.P. (Cr!.) No. Compensation Assam
c Keshorjit 2 of2006 awarded Rifles
lltol2. Sanasam l\gongo - W.P. (C) Nos. Compensatioo 21 PARA
I other 1201and1205 awarded
of2005
D 13. Pharoijam Sanajit W.P. (Cr!.) No. Compensation Raj put
2 of2005 and awarded Rifles
W.P. (Cr!.) No.
16 of2012
14tol7. Seikholun Baite.,. 3 W.P.(C)No. Compensatioo CRPF
others 752 of2010 awarded
E
and W.P.(C)
No.663 of
2007
18to27. Kshetrima~ilm W.P.(C)No. Compensatioo Assam
Inaocha.,. 9 others 1268 of2002 awarded Rifles
F
28. R.K. Lakshana W.P. No. 10 of Compensatioo Manipur
alias Beto 2010 (Ref awarded (but Police
W.P.(C)No. not yet paid)
1986 of2001)
29. Rarnaso W.P.No. 591 Compensatioo Assam
G
Shingnaisui ofl999 awarded Rifles
0. Mcl.Zakir W.P..(C)No. Compensatioo CRPF
114ofl999 awarded
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 375
INDIA [MADAN B. LOKUR, J.]
A
31to32. Smm Priyokwnar W.P.(C)No. Pending Assam
+I other 840 of2014 Rifles
33. Khudrakpam W.P. (Cr!.) No. Compensation Assam
Tejl..-umar 3 of 2005 awarded Rifles
34. Asem Romajit WP(C)No. 1
CRPF B
646 of2007
35. Ywnnaln Robita W.P. (C.) No. 1
CRPF
647 of2007
36. Kangujam Ojit Reponed as Compensation ludian
1999 Cri. L. J. awarded Army
3584 c
37. Naorem first Re1·ision Compensation Manipur
Krishnamohon Appea!No.3 awarded Police
Singh of2009
D
TABLE- II
Deaths inquired into by the NHRC
13. As many as 20 deaths were reported to the NHRC as a result
of fake encounters or the use of excessive or retaliatory force. Of them, E
7 complaints are pending before the NHRC. We request the NHRC to
take a decision on these complaints as soon as possible.
14. There is no specific information with regard to two complaints
and we leave it to the investigating team to ascertain from the NHRC
the result of these complaints. F
15. In the remaining complaints, the NHRC has awarded
compensation to the next of kin of the deceased meaning thereby that
there is more than a prima facie case of a fake encounter or the use of
excessive or retaliatory force. We direct the registration ofFIRs in respect
of these complaints. G
16. The details of the complaints in which a reference has been
made to the NHRC arc given below in Table-III.
H
376 SUPREME COURT REPORTS . [2017) l I S.C.R.
A NHRC Cases
s. Name of Victim Result Unit
No.
(Total= 23)
B I. Md . .Zamir Khan Compensation Imphal West Police
awarded Commando
2 to Md. Ishaque Ali Compensation Imphal East and
3. + l other awarded West Police
Commando
c
4. Hawaibam Pending Assam Rifles
Amujao
5 to Oinam Ananda Pending Assam Rifles
D 6. alias Girani
Meitci + l other
7. Longjam Pending Imphal East and
Dham~n West Police
Commando
E
8. Waheogbam Pending Imphal West Police
Jayenta Commando
9. Sorem Ranj it Compensation Imphal East Police
Singh alias Rojit awarded Commando
F
IO. Wahengbam Compensation BSF
Manglemba awarded
Singh
11. Ningthoujam '! Manipur Police
G Premkumar Commando
12. Thokchom Pending Manipur Police
Sommjit Commando,
Maratha Light
Infantry
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 377
INDIA [MADAN B. LOKUR, J.]
A
13 to 14. Kshetrimayum Pending Imphal West Police
Govind +I Commando,
other Maratha Light
Infantry
15. Thangjam Anil Compensation Imphal West and B
recommended, East Police
bnt not yet Commando, Sikh
received Regiment
16. lrengbam Compensation Imphal West Police
Ratankumar recommended,
c
Commando
but not yet
received.
17. Laishram Compensation Imphal West Police
Ranbir ·alias awarded Commando D
Eshe!
18. Laishram Pending lmpha!West Police
Lincoln a/ia5 Commando
Nicolson
E
19. Thokchom Compensation Imphal East Police
Ranjit awarded Commando
20 lo 23. Khular Prakash '! BSF
Lamkang + 3
others F
·TABLE - III
Inquiry by Justice Santosh Hcgdc Commission
17. It may be recalled that six cases were earlier considered by a G
Commission headed by Justice Santosh Hcgdc (a retired judge of this
Comt) and which finds mention in our earlier orders. There is no doubt
that in these cases also an FIR must be lodged and after due investigations,
fmther steps need to be taken in accordance with law. We direct the
registration of F!Rs.-in these cases also.
H
378 SUPREME COURT REPORTS [2017] II S.C.R.
A Submissions and consideration
18. It was submitted by the learned Attorney Genernl that some
of the incidents arc of considerable vintage and at this point of time it
may not be appropriate to re-open the issues for investigation. We are
not in agreement with the learned Attorney General. If a crime has been
B committed, a crime which involves the death of a person who is possibly
innocent, it cannot be over-looked only because of a lapse of time. What
is also not acc-:ptable is that the law having been laid down by the
Constitution Bench, it was the obligation of the State to have suo mo/11
conducted a thorough inquiry at the appropriate time and soon after
each incident took place. Merely because the State has not taken any
c action and has allowed time to go by, it cannot take advantage of the
delay to scuttle an inquiry.
19. It was also submitted by the learned Attorney General that
there were local pressures and the ground level situation was such that
it would not be surprising if the inquiries were biased in favour of the
D citizens and against the State. This is only a submission which is noted
and rejected. If there had been a break-down of the rule of law in the
State ofManipur, surely the Government of India was under an obligation
to take appropriate steps. To suggest that all the inquiries were unfair
and motivated is ~asting very serious aspersions on the independence of
the authorities in Manipur at that point of time, which we do not think is
E
at all warranted.
20. It was also submitted that in many instances the next ofkin of
the deceased had not approached this Court and there is no reason why
we should ente11ain a petition filed by a third party. Since the next of the
kin had themselves given a quietus to the incidents, there is really no
F occasion for this Court to take up the issue at the instance of a third
party. We reject this submission as well.
21. Access to justice is certainly a human right and it has been
given a special place in our constitutional scheme where free legal aid
and advice is provided to a large number of people in the country. The
G primary reason is that for many of the deprived sections of society, access
to justice is only a dream. To provide access to justice to every citizen
and to make it meaningful, this Court has evolved its public interest
jurisprudence where even letter-petitions are entertained in appropriate
cases. The history of public interest Iitigation over the years has settled
that the deprived sections of society and the downtrodden such as bonded
H labourers, trafficked women, homeless persons, victims of natural
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION Of 379
INDIA [MADAN B. LOKUR, J.]
disasters and others can knock on the doors of our constitutional courts A
and pray for justice. This is precisely what has happened in the present
petitions where the next of kin could not access justice even in the local
courts and the petitioners have taken up their cause in public interest.
Our constitutional jurisprudence docs not permit us to shut the door on
such persons and our constitutional obligation requires us to give justice
B
and succour to the next of kin of the deceased.
22. It was finally submitted by the learned Attorney General that
compensation has been paid to the next of kin for the nnfortunate deaths
and therefore it may be not necessary to proceed further in the matter.
We cannot agree. Compensation has been awarded to the next of kin
for the agony they have suffered and to enable them to immediately tide c
over their loss and for their rehabilitation. This cannot override the law
of the land, otherwise all heinous crimes would get settled through
payment of monetary compensation. Our constitutional j urisprudencc
does not permit this and we ce11ainly cannot encourage or countenance
such a view. D
Special Investigation Team
23. As far as the appointment of a Special Investigating Team is
concerned (which we have adverted to above), it was suggested to us
that ofticers of the Manipur Police may be associated. We do not think
it appropriate to associate any officer of the Manipur Police particularly
E
since in some of the cases the role of the Manipur Police itself has been
adversely commented upon.
24. In Bharati Ta111a11g v. U11io11 of llldia & Ors, 3 this Court
held that to ensure that criminal prosecution is carried on without any
deficiency a special team can be constituted under the orders of this
Court. Consequently, we have no hesitation in directing the constitution f
of a Special Investigating Team to investigate the cases that we have
mentioned above. It is interesting to note at this stage that we were
informed that in none of the cases has an FIR been registered <1gainst
the Manipur Police or any uniformed personnel of the armed forces of
the Union. On the contrary. FJRs have been registered against the G
deceased for alleged violations of the law. Under these circumstances.
it would be inappropriate for us to depend upon the Manipur Police to
carry out an impartial investigation more particularly when some of its
own personnel are said to be involved in the fake encounters and the
3
(2013) 15SCC578
H
380 SUPREME COURT REPORTS (2017] I l S.C.R.
A Manipur Police has not registered any FIR at the instance of the next of
the kin of the deceased.
25. In R.S. Sodhi v. State ofU.P. 4 this Court observed as follows:-
..... We think that since the accusations are directed against the
local police personnel it would be desirable to entrust the
B investigation to an independent agency like the Central Bureau of
Investigation so that all concerned including the relatives of the
deceased may feel assured that an independent agency is looking
into the matter and that would lend the final outcome of the
investigation credibility. However faithfully the local police may
carry out the investigation, the same will lack credibility since the
c allegations are against them."
It is in view of the above that the more appropriate course of action
would be to appoint an independent investigating team to examine the
cases mentioned above.
26. Having considered the issues in their entirety, we are of opinion
D that it would be appropriate if the Central Bureau of Investigation (or
the CBI) is required to look into these fake encounters or use of excessive
or retaliatory force. Accordingly, the Director of the CBI is directed to
nominate a gro11p of five officers to go through the records of the cases
mentioned in th~ three tables given above, lodge necessary FlRs and to
E complete the investigations into the same by 31" December, 2017 and
prepare charge sheets, wherever necessary. The entire groundwork has
already been done either by the Commissions of Inquiry or by a Judicial
Inquiry or by the Gauhati or Manipur High Court or by the NHRC. We
leave it to the Special Investigating Team to utilize the material already
gathered, in accordance with law. We expect the State of Manipur to
F extend full cooperation and assistance to the Special Investigating Team.
We also expect the Union oflndia to render full assistance to the Special
Investigating Team to complete the investigation at the earliest without
any unnecessary hindrances or obstacles. The Director of the CBI will
nominate the team and inform us of its composition within two weeks.
G NHRC - a toothless tiger
27. We have also heard Mr. Gopal Subramanium. Senior Advocate
on behalf of the NHRC with regard to some issues on the basis of which
it was earlier pleaded before us that the NHRC is nothing but a toothless
tiger.
H '(IW4)Supp. I sec 143
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 381
INDIA [MADAN B. LOKUR, J.]
28. There is no doubt that the rule of law has been placed on a A
pedestal ever since the time of Aristotle. More recently Dicey has also
expounded on the constituents of the rule oflaw and it is now expected
that all modem democratic jurisdictions accept the rule of law as the
guiding light and a shield available to the people against arbitmry executive
.action. As far as we are concerned, the rule of law has also been
B
accepted as a part of the basic structure of our constitutional jurisprudence.
Undoubtedly, the protection and preservation of human rights is one of
the most important aspects of the rule oflaw.
29. Keeping this in mind, as well as the Universal Declaration of
Human Rights, Parliament enacted the Protection oftt:uman Rights Act,
1993. The Statement of Objects and Reasons for the Protection of C
Human Rights Act, 1993 is of considemble significance and accepts the
importance of issues relating to human rights with a view, inter a/ia, to
bring accountability and transparency in human rights jurisprudence. The
Statement of Objects and Reasons reads as under:-
" I. India is a party to the International Covenant on Civil and D
Political Rights and the International Covenant on Economic, Social
and Cultural rights, adopted by the General Assembly of the United
Nations on the 16"' December, 1966. The human rights embodied
in the aforesaid covenants stand substantially protected by the
Constitution.
E
2. However, there has been growing concern in the country and
abroad about issues relating to human rights. Having regard to
this, changing social realities and the emerging trends in the nature
of crime and violence, Government has been reviewing the existing
laws, procedures and systems of administration ofjustice; with.a
view to bringing about greater accountability and transparency in F
them, and devising efficient and effective methods of dealing with
the situation.
3. Wide ranging discussions were held at various fora such as the
ChiefMinisters' Conference on Human Rights; seminars organized
in various parts ofthe country and meetings with leaders of various G
political parties. Taking into account the views expressed in these
discussions, the present Bill is brought before Parliament."
30. Under the provisions of the Protection of Human Rights Act,
1993 the NHRC has been constituted as a high-powered statutory body
whose Chairperson is and always has been a retired Chief Justice of H
382 SUPREME COURT REPORTS [2017] ll S.C.R.
A India. Amongst others, a retired judge of the Supreme Court and a retired
Chief Justice of a High Court is and has always been a member of the
NHRC.
3 I. In Ram Deo Clta11ltan v. Bani Kanta Das' this Court
recognized that the words 'human rights' though not defined in the
B Universal Declaration of Human Rights have been defined in the
Protection of Human Rights Act, 1993 in very broad tem1s and that
these human rights are enforceable by courts in India. This is what this
Colll1 had to say in this regard in paragraphs 47-49 of the Report:
"Human rights are the basic, inherent, immutable and inalienable
rights to which a person is entitled simply by virtue of his being
c born a human. They are such rights which arc to be made available
as a matter of right. The Constitution and legislations of a civilised
country recognise them since they are so quintessentially part of
every human being. That is why every democratic country
committed to the rule oflaw put into force mechanisms for their
enforcement and protection.
D
Human rights are universal in nature. The Universal Declaration
of Human Rights (hereinafter referred to as UDHR) adopted by
the Genera! Assembly of the United Nations on 10-12-1948
recognises and requires the observance of certain universal rights,
articulated therein, to be human rights, and these are acknowledged
E and accepted as equal and inalienable and necessary for the
inherent dignity and development of an individual. Consequently,
though the term "human rights" itself has not been defined in
UDHR, the nature and content of human rights can be understood
from the rights enunciated therein.
F Possibly considering the wide sweep of such basic rights, the
definition of"human rights" in the 1993 Act has been designedly
kept ve1y broad to encompass within it all the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and
enforceable by courts in India. Thus, if a person has been
G
guaranteed certain rights either under the Constitution or under
an International Covenant or under a law, and he is denied access
to such a right, then it amounts to a clear violation of his human
rights and NHRC has the jurisdiction to intervene for protecting
it..,
H '(2010) 14SCC209
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 383
INDIA [MADAN B. LOKUR, J.]
32. lt was submitted (and we agree) that the NHRC has essentially A
four roles to play, namely that of protector, advisor, monitor and educator
of human rights. It is in this capacity that the NHRC as a protector and
monitor of human rights through effective investigations has issued
guidelines from time to time with regard to various aspects including
reporting of matters relating to custodial death and rape, videography of B
post-mortem examination etc.
33. On 14'" December, 1993 the NHRC directed law and order
agencies across the country to report matters relating to custodial deaths
and mpes within 24 hours. (At that time, death in police action was
classified under 'custodial deaths').
c
34. A couple of years later, on 1O'" August, 1995 the NHRC sent
a letter to all ChicfMinistcrs advising them of the necessity of introducing
video-filming of post-mortem examinations from I" October, 1995
onwards to avoid distortion of facts. This was followed by another letter
dated 27'" March, 1997 sent by the NHRC to all Chief Ministers
recommending that all States adopt the "Model Autopsy Form" and D
"Additional Procedure for Inquest" prepared by the NHRC which was
based on discussions with experts and the UN Model Autopsy Protocol.
This was to ensure that all information was collected by the concerned
officer and supplied to NHRC without delay.
35. On 29'" March 1997 the NHRC issued Guidelines E
recommending the procedure to be followed by States and Union
Territories with regard to encounter deaths. It was recommended, inter
alia, that:
1. Deaths should be entered in an appropriate register at the
Police Station; F
n. It should be treated as a cognizable offence and investigation
should commence;
iii. It should be investigated by an independent agency such as
the State CID, and not by officers of the same Police Station;
G
1v. Compensation to the victim's dependants should be considered
in cases ending in conviction.
36. These Guidelines were revised and circulated on 2"' December,
2003 to introduce greater transparency and accountability, since the States
were not regularly intimating the NHRC of encounter deaths thereby H
384 SUPREME COURT REPORTS (2017] l l S.C.R.
A affecting statistical data. The revised Guidelines contained the following
major changes, in addition to the previous Guidelines:
a. If a specific complaint was made against the police, an FIR
must be lodged;
b. A Magisterial Inquiry was now mandatory in every encounter
B death;
c. It aiso required the State Director General of Police to send a
6-monthly statement of details of all deaths in police action to the
NHRC.
c 37. As one would expect, there was continued non-<:ompliance of
the Guidelines by the States, making it necessary for the NHRC to further
revise and circulate the Guidelines on 12'" May, 2010 containing the
following major changes, in addition to the previous guidelines:
a. The Magisterial Inquiry was required to be completed within 3
months;
D
b. Every death in police action was to be reported to the NHRC
by the District Superintendent of Police within 48 hours;
c. A second report was to be sent to the NHRC by the District
Superintendent of Police within 3 months, with the Post-Mortem
E Report, Inquest Report, Ballistic Report and findings of the
Magisterial Inquiry.
These Guidelines are currently operational.
38. It was submitted by the NHRC that all its communications
and Guidelines have remained only on paper and are not enforced by
F any State Government. The submission of the NHRC was that to ensure
that good quality reports are available, the Guidelines need to be strictly
enforced. We agree with this submission and make it clear that the
intention of the NHRC is to more effectively assist the criminal justice
delivery system and avoid any factual controversies while respecting
G human rights. It is not as if the dignity of only living persons needs to be
respected but even the dignity of the dead must be given due respect.
Unless the communications and Guidelines laid down by the NHRC
(which have been prepared after wide ranging and detailed consultations)
are adhered to, the respect and dignity due to the dead and the human
rights of all us will remain only on paper.
H
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 385
INDIA [MADAN B. LOKUR, J.]
Other issues concerning the NHRC A
39. Apart from a lack of concern for the communications and
Guidelines issued by .the NHRC or the absence of attention that they
deserve, the difficulty faced by the NHRC is that even ifthere is half-
hearted compliance, there are unexplained delays on the part of the
State Government in sending reports; the quality of the reports is certainly B
not up to the mark and as expected: sometimes some columns are left
blank in the reports and on other occasions some documents are illegible
etc. All this, according to the NHRC, hampers its efficient functioning
and causes delays in the implementation of the human rights of aggrieved
persons.
c
40. It was also submitted that the NHRC receives a very large
number of complaints on a daily basis and quite frequently as many as
450 complaints are received in one day. The NHRC has been requesting
for an adequate number of trained staff but, instead of additional staff
being provided, the staff strength is depleting. This has resulted in
overburdening the existing stall In this context, our attention was drawn D
to Section 11 of the Protection of Human Rights Act, 1993 which reads
as follows:
"11. Officers and other staff of the Commission - (I) Th.c
Central Government shall make available to the Commissi:on -
E
(a) an Officer of the rank of the Secretary to the Government of
India who shall be the Secretary-General of the Commission; and
(b) such police and investigative staff under an officer not below
the rank of a Director-General of Police and such other officers
and staff as may be necessary for the efficient performance of F
the functions of the Commission.
(2) Subject to such rules as may be made by the Central
Government in this behalf, the Commission may appoint such other
administrative, technical and scientific staff as it may consider
necessary.
G
(3) The salaries, allowaifces and conditions of service of the
officers and other staff appointed under sub-secticn (2) shall be
such as may be prescribed."
41. It is quite clear from a reading of the above provision that the
Central Government is under an obligation ('shall make available') to H
386 SUPREME COURT REPORTS [2017] l l S.C.R.
A provide adequate officers and staff so that the NHRC can perform its
functions efficiently. The difficulties faced by the NHRC due to
inadequate officers and staff and something to worry about from a human
rights perspective.
42. The general submission of the NHRC is that there should be
B implementation of its communications and Guidelines, enforcement of
the orders passed by it and serious consideration of the recommendations
made by the NHRC and necessary provision for its effective functioning.
43. The NHRC has placed before us the following table indicating
the change in its work-load and a careful scrutiny of it clearly indicates
the remedial steps that need to be taken with regard to the staff strength.
c
Comparison between the Investigation Division Sanctioned Strength
and work load during 2014-15 with that in 1995-96.
Present Previous %
D (31-03-2015) (31-3-1995) Increase/decrease
Sanctioned Staff 49•• 59* - 16.94%*
decrease in staff
strength
E Total complaints 1.14,167 7843 1455% increase
received
annually
Investigation 53 13 407% increase
Custodial Death 5496 444 1237% increase
F
Cases
Fact Finding 1851 706 262% increase
Cases
Rapid Action 120 (More NIL 120 times
G Cell (RAC) than I 00
cases (started cases were
after 2007) added in last
three months
alone).
H Table-IV
EXTRA JUDL. EXEC. VICTIM FAMILIES ASSN. v. UNION OF 387
INDIA [MADAN B. LOKUR, J.]
44. Considering that such a high powered body has brought out its A
difficulties through atlidavits and written submissions filed in this Court,
we have no doubt that it has been most unfortunately reduced to a
toothless tiger. We arc of the clcaropinion that any request made by the
NHRC in this regard must be expeditiously and favourably respected
and considered by the Union of India otherwise it would become
B
impossible for the NHRC to function effectively and would also invite
avoidable criticism regarding respect for human rights in our country.
We direct the Union oflndia to take note of the concerns of the NHRC
and remedy them at the earliest and with a positive outlook.
45. In the context ofnon-compliance of the orders of the NHRC,
it has also been brought by the NHRC that the directions issued by it for c
payment of compensation to victims of violation of human rights are
sometimes not adhered to. We have seen in Table- III above that there
arc some instances where the directions given by the NHRC for payment
of compensation have not been implemented by the State of Manipnr.
This is very unfortunate but we accept the assurance of learned senior D
counsel appearing for the State of Manipur that the compensation
awarded by the NHRC will soon be paid to the next of kin of the
deceased.
46. We expect all State Governments to abide by the directions
issued by the NHRC in regard to compensation and other issues as may E
arise from time to time. If the people of our country arc deprived of
human rights or cannot have them enforced, democracy itself would be
in peril.
State Human Rights Commissions
47. We have been informed that not all States have Human Rights F
Commissions and this is confirmed from the website of the NHRC. 6
While the Protection of Human Rights Act, 1993 provides for the
constitution of a State Human Rights Commission under Section 21 of
the said Act, it is not made mandatory. However, in our opinion, the
provisions of Part III of our Constitution particularly the essence ofArticle
G
21 of the Constitution does require every State to constitute a State
Human Rights Commission, but we do not think it appropriate to issue
any direction, particularly in the present writ petitions, to State
Governments to constitute a State Human Rights Commission. But, we
6
nhrc.nic. in
H
388 SUPREME COURT REPORTS [2017] II S.C.R.
A do feel it imperative to bring it to the notice ofall State Governments that
it would be but a small step in the protection oflife and liberty of every
person in our country if a State Human Rights Commission is constituted
at the earliest.
Annual Reports
B 48. We must express our disappointment on the failure of the
NHRC to bring out its Annual Reports. A perusal of the website of the
NHRC brings out that the latest Annual Report is of2012-2013. Several
years have gone by since then, but no Annual Report has been published
- we have no idea what is the stage of preparation or consideration of
c the subsequent Annual Reports. We express the hope that given the
importance of human rights, the Annual Reports of the NHRC will be
made available with due expedition.
Orders
!. As already directed, the Director of the Central Bureau of
D Investigation will nominate a team and inform us of its
composition within two weeks. as also any other requirement.
List these cases immediately after three weeks for compliance.
2. These petitions should also be listed positively in the second
week of January, 20 I 8 to ensure compliance with our directions
E for investigation by Central Bureau oflnvestigation.
Nidhi Jain Matter adjourned.
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