REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 129 OF 2012

Extra Judl. Exec. Victim Families Assn. & Anr.          ….Petitioners

        versus

Union of India & Ors.    ...Respondents  

WITH  WRIT PETITION (C) NO. 445 OF 2012

J U D G M E N T

Madan B. Lokur, J.

1. In the present petitions, the allegation was that 1528 persons had been

killed in fake encounters by police personnel and personnel in uniform of the

armed forces of the Union.  By our judgment and order dated 8 th July, 20161

we respectfully followed the view laid down by a Constitution Bench of this

Court in  Naga People’s Movement of Human Rights v. Union of India.2

The Constitution Bench held that an allegation of use of excessive force or

retaliatory force by uniformed personnel resulting in the death of any person

necessitates a thorough enquiry into the incident.  We were of  opinion that

1   (2016) 14 SCC 578 (2) 2  (1998) 2 SCC 109

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 1 of 26

even the ‘Dos and Don’ts’ and the ‘Ten Commandments’ of the Chief of

Army Staff believe in this ethos and accept this principle.  However, after

considering the submissions at law, we found that the documentation was

inadequate to immediately order any inquiry into the allegations made by the

petitioners  and  therefore  directed  them  to  complete  the  documentation

indicating whether the allegations were based on any judicial enquiry or an

enquiry conducted by the National Human Rights Commission or an enquiry

conducted under the Commissions of Inquiry Act, 1952.

2. A tabular statement has since been filed by learned counsel for the

petitioners and this statement has been accepted by learned Amicus and no

objection was raised by the Union of India or by the State of Manipur.  We

therefore proceed on the basis of the tabular statement before us.   

3. The petitioners have been able to gather information with regard to

655 deaths out of 1528 alleged in the writ  petitions.   The break-up is as

follows:

Sl. No. PARTICULARS No. of cases 1. Commission of Inquiry cases 35 2. Judicial  Inquiry  and  High

Court cases 37

3. NHRC cases 23 4. Cases with written complaint 170 5. Cases with oral complaint 78 6. Cases with eye witnesses 134 7. Family claimed cases 178

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 2 of 26

Total number 655

4. We have perused the tabular statement given with regard to cases with

written  complaints,  oral  complaints  and  eye-witness  accounts  as  well  as

family  claimed  cases  but  find  that  apart  from a  simple  allegation  being

made, no substantive steps appear to have been taken by either lodging a

First Information Report (FIR) or by filing a writ petition in the concerned

High  Court  or  making  a  complaint  to  the  National  Human  Rights

Commission (NHRC).  The allegations being very general in nature, we do

not think it appropriate to pass any direction for the time being in regard to

the cases concerning these written complaints, oral complaints, cases with

eye-witness accounts and family claimed cases.   It is not that every single

allegation must necessarily be inquired into.  It must be remembered that we

are not dealing with individual cases but a systemic or institutional response

relating to constitutional criminal law.   

Deaths investigated by Commissions of Inquiry  

5. With regard to 35 deaths dealt with in reports given by Commissions

constituted under the Commissions of Inquiry Act, 1952 we find that two of

the deaths:  in respect of  L.D. Rengtuiwan and  N. Sanjita Devi were not

mentioned in the writ petition.   We pass no orders in respect of these two

cases.  

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 3 of 26

6.  As far as the death of Thangjam Manorama is concerned, the issues

are pending in this Court in Civil Appeal Nos. 65-69 of 2015 and therefore

we make no comment in this regard.   

7. As far as the remaining 32 deceased victims are concerned, we find

that  independent  Commissions  of  Inquiry  have  made  adverse  comments

against personnel of the Manipur Police and the Central Reserve Police force

(as the case may be) for the use of excessive force or retaliatory force.  In

our opinion, more than a prima facie case is made out for lodging an FIR in

the appropriate police station in respect of the death of these 32 persons. We

direct the registration of FIRs in these cases.  The details of ‘Commissions

of Inquiry Cases’ are given below in Table-I.

COMMISSIONS OF INQUIRY CASES

Sl.No. NAME OF VICTIM (Total = 35)

NOTIFICATION DATE

UNIT

1. L. D. Rengtuiwan 16.03.2005 Not in WP 2. Thangjam Manorama ? Pending in SC 3. N. Sanjita Devi 06.12.2003 Not in WP

4 to 14. Amom Rajan Meitei and 10 others

04.07.2001 CRPF  

15 to 19. Major Shimareingam  Shaiza and 4 others

? Manipur Police

20 to 21. Thoudam Munindro Singh  and another

27.12.1996 Manipur Police

22. Oinam Ongbi Amina Devi 06.04.1996 CRPF  23 to 35. Angom Raghumani Singh  

and 12 others 15.06.1985 CRPF  

TABLE-I

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 4 of 26

Deaths considered by Judicial Inquiries and High Court  

8. With regard to the ‘Judicial Inquiry and High Court cases’ the Gauhati

High Court had entertained writ petitions into allegations of the death of as

many  as  37  persons  in  fake  encounters  through  the  use  of  excessive  or

retaliatory force and in some cases ordered a judicial enquiry.   

9. Two writ petitions  are still pending in the High Court and we request

Hon’ble the Chief Justice of the concerned High Court (whether it is the

Gauhati High Court or the Manipur High Court) to expeditiously dispose of

the writ petitions if they have not already been disposed of.

10. One  writ  petition  [W.P.  (Criminal)  No.103  of  2009]  has  been

dismissed meaning thereby that the High Court found no substance in the

allegations made and therefore this case may be treated as closed.   

11. There  is  no  specific  information  with  regard  to  two  other  writ

petitions and we leave it to the investigating team that we propose to appoint

to ascertain the correct factual position.

12. With  regard  to  the  remaining  writ  petitions,  the  High  Court  has

awarded compensation to the next of kin of the deceased meaning thereby

that more than a prima facie case has been found of a fake encounter or the

use  of  excessive  or  retaliatory  force  contrary  to  the  decision  of  the

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 5 of 26

Constitution Bench of this Court.  We direct the registration of FIRs in these

cases.  The details of these writ petitions are given below in Table – II.

JUDICIAL INQUIRY & HIGH COURT CASES

S. No. NAME OF VICTIM (TOTAL= 37)

CASE NO. RESULT UNIT

1to 3. Moirantem Ibungo +  2 others

W.P. (C) No. 92 of 2013

Pending Manipur Police, Assam Rifles

4. Athokpam  Angousana Meitei

W.P. (Crl.) No.  108 of 2011

Compensation awarded

Manipur Police

5. Leishangthem  Santosh

W.P. (Crl.) No.  40 of 2009

Compensation awarded

Manipur Police

6. Sorensangbam  Sanayaima  

W.P. (Crl.) No.  103 of 2009

Dismissed Manipur Police

7. Ningthoujam  Thokchao Singh

W.P. (C) No. 75 of 2008

Compensation awarded

BSF

8. Ningthoujam Binoy  alias Khaiba Singh

W.P. (Crl.) No.  25 of 2009

Compensation awarded

Manipur Police

9. Sagolsem Vikram  Singh

W.P. (Crl.) No.  5 of 2007

Compensation awarded

Assam Rifles

10. Pheiroijam Keshorjit W.P. (Crl.) No.  2 of 2006

Compensation awarded

Assam Rifles

11to 12. Sanasam Ngongo + 1  other

W.P. (C) Nos.  1201 and 1205  of 2005

Compensation awarded

21 PARA

13. Pharoijam Sanajit W.P. (Crl.) No.  2 of 2005 and  W.P. (Crl.) No.  16 of 2012

Compensation awarded

Rajput Rifles

14 to 17. Seikholun Baite + 3  others

W.P. (C) No.  752 of 2010  and W.P. (C)  No. 663 of  2007

Compensation awarded

CRPF

18 to 27. Kshetrimayum  Inaocha + 9 others

W.P. (C) No.  1268 of 2002

Compensation awarded

Assam Rifles

28. R.K. Lakshana alias W.P. No. 10 of Compensation Manipur

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 6 of 26

Beto 2010 (Ref: W.P. (C) No. 1986 of 2001)

awarded  (but not yet paid)

Police

29. Ramaso Shingnaisui W.P. No. 591 of 1999

Compensation awarded

Assam Rifles

30. Md. Zakir W.P. (C) No.  114 of 1999

Compensation awarded

CRPF

31 to 32. Seram Priyokumar +  1 other

W.P. (C) No.  840 of 2014

Pending Assam Rifles

33. Khudrakpam  Tejkumar  

W.P. (Crl.) No.  3 of 2005

Compensation awarded

Assam Rifles

34. Asem Romajit W.P. (C) No.  646 of 2007

? CRPF

35. Yumnam Robita W.P. (C.) No.  647 of 2007

? CRPF

36. Kangujam Ojit Reported as  1999 Cri. L. J.  3584

Compensation awarded

Indian Army

37. Naorem  Krishnamohon Singh

First Revision  Appeal No. 3 of 2009

Compensation awarded

Manipur Police

TABLE- II

Deaths inquired into by the NHRC

13. As many as 20 deaths were reported to the NHRC as a result of fake

encounters or the use of excessive or retaliatory force. Of them, 7 complaints

are pending before the NHRC.  We request the NHRC to take a decision on

these complaints as soon as possible.   

14. There is no specific information with regard to two complaints and we

leave it to the investigating team to ascertain from the NHRC the result of

these complaints.

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 7 of 26

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 of FIRs in respect of these complaints.   

16. The details of the complaints in which a reference has been made to

the NHRC are given below in Table-III.

NHRC CASES   

S. No. NAME OF VICTIM (TOTAL= 23)

RESULT UNIT

1. Md. Zamir Khan Compensation  awarded

Imphal West Police  Commando

2 to 3. Md. Ishaque Ali + 1  other

Compensation  awarded

Imphal East and West  Police Commando

4. Hawaibam Amujao Pending Assam Rifles 5 to 6. Oinam Ananda alias  

Girani Meitei + 1 other Pending Assam Rifles

7. Longjam Dhamen Pending Imphal East and West  Police Commando

8. Wahengbam Jayenta Pending Imphal West Police  Commando

9. Sorem Ranjit Singh  alias Rojit

Compensation  awarded

Imphal East Police  Commando

10. Wahengbam  Manglemba Singh

Compensation  awarded

BSF

11. Ningthoujam  Premkumar

? Manipur Police  Commando

12. Thokchom Somorjit Pending Manipur Police  Commando, Maratha  Light Infantry

13 to 14. Kshetrimayum Govind  + 1 other

Pending Imphal West Police  Commando, Maratha  Light Infantry

15. Thangjam Anil Compensation Imphal West and East  

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 8 of 26

recommended, but  not yet received.

Police Commando,  Sikh Regiment

16. Irengbam Ratankumar Compensation  recommended, but  not yet received.

Imphal West Police  Commando

17. Laishram Ranbir alias  Eshel

Compensation  awarded

Imphal West Police  Commando

18. Laishram Lincoln alias  Nicolson

Pending Imphal West Police  Commando

19. Thokchom Ranjit Compensation  awarded

Imphal East Police  Commando

20 to 23. Khular Prakash  Lamkang + 3 others

? BSF

TABLE - III

Inquiry by Justice Santosh Hegde Commission

17. It  may  be  recalled  that  six  cases  were  earlier  considered  by  a

Commission  headed  by  Justice  Santosh  Hegde   (a  retired  judge  of  this

Court) 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,

further  steps  need  to  be  taken  in  accordance  with  law.  We  direct  the

registration of FIRs in these cases also.

Submissions and consideration

18. It  was submitted by the learned Attorney General  that some of the

incidents are of considerable vintage and at this point of time it may not be

appropriate to re-open the issues for investigation.  We are not in agreement

with the learned Attorney General.  If a crime has been committed, a crime

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 9 of 26

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 acceptable is

that the law having been laid down by the Constitution Bench, it was the

obligation of the State to have suo motu conducted a thorough inquiry at the

appropriate time and soon after each incident took place. Merely because the

State has not taken any action and has allowed time to go by, it cannot take

advantage of the delay to scuttle an inquiry.

19. It was also submitted by the learned Attorney General that there were

local pressures and the ground level situation was such that it would not be

surprising if the inquiries were biased in favour of the citizens and against

the State.  This is only a submission which is noted and rejected.  If there

had been a break-down of the rule of law in the State of Manipur, surely the

Government of India was under an obligation to take appropriate steps.  To

suggest  that  all  the  inquiries  were  unfair  and  motivated  is  casting  very

serious aspersions on the independence of the authorities in Manipur at that

point of time, which we do not think is at all warranted.   

20. It was also submitted that in many instances the next of kin of the

deceased  had not  approached  this  Court  and there  is  no  reason why we

should entertain a petition filed by a third party.  Since the next of the kin

had themselves given a quietus to the incidents, there is really no occasion

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 10 of 26

for this Court to take up the issue at the instance of a third party.  We reject

this submission as well.   

21. Access to justice is certainly a human right and it has been given a

special place in our constitutional scheme where free legal aid and advice is

provided to a large number of people in the country.  The primary reason is

that for many of the deprived sections of society, access to justice is only a

dream.   To  provide  access  to  justice  to  every  citizen  and  to  make  it

meaningful, this Court has evolved its public interest jurisprudence where

even  letter-petitions  are  entertained in  appropriate  cases.   The  history  of

public interest litigation over the years has settled that the deprived sections

of society and the downtrodden such as bonded labourers, trafficked women,

homeless persons, victims of natural disasters and others can knock on the

doors of our constitutional courts and pray for justice.  This is precisely what

has happened in the present petitions where the next of kin could not access

justice even in the local courts and the petitioners have taken up their cause

in public interest.   Our constitutional jurisprudence does not permit us to

shut the door on such persons and our constitutional obligation requires us to

give justice and succour to the next of kin of the deceased.

22. It  was  finally  submitted  by  the  learned  Attorney  General  that

compensation has been paid to the next of kin for the unfortunate deaths and

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 11 of 26

therefore  it  may  be  not  necessary  to  proceed  further  in  the  matter.   We

cannot agree.  Compensation has been awarded to the next of kin for the

agony they have suffered and to enable them to immediately tide over their

loss and for their rehabilitation.  This cannot override the law of the land,

otherwise all heinous crimes would get settled through payment of monetary

compensation.  Our constitutional jurisprudence does not permit this and we

certainly cannot encourage or countenance such a view.  

Special Investigation Team

23. As  far  as  the  appointment  of  a  Special  Investigating  Team  is

concerned (which we have adverted to above), it was suggested to us that

officers  of  the  Manipur  Police  may  be  associated.  We do  not  think  it

appropriate to associate any officer of the Manipur Police particularly since

in some of the cases the role of the Manipur Police itself has been adversely

commented upon.   

24. In Bharati Tamang v. Union of India & Ors.3 this Court held that to

ensure  that  criminal  prosecution  is  carried  on  without  any  deficiency  a

special team can be constituted under the orders of this Court. Consequently,

we have no hesitation in directing the constitution of a Special Investigating

Team to investigate the cases that we have mentioned above.  It is interesting

to note at this stage that we were informed that in none of the cases has an 3  (2013) 15 SCC 578

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 12 of 26

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 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

Manipur Police has not registered any FIR at the instance of the next of the

kin of the deceased.

25. In R.S. Sodhi v. State of U.P.4 this Court observed as follows:-

“…We think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final  outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them.”

It is in view of the above that the more appropriate course of action would be

to  appoint  an  independent  investigating  team  to  examine  the  cases

mentioned above.

26. Having considered the issues in their entirety, we are of opinion 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

4  (1994) Supp. 1 SCC 143

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 13 of 26

force.  Accordingly, the Director of the CBI is directed to nominate a group

of five officers to go through the records of the cases mentioned in the three

tables given above, lodge necessary FIRs and to complete the investigations

into the same by 31st 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 extend full  cooperation and

assistance to the Special Investigating Team. We also expect the Union of

India 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.  

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.   

28. There is no doubt that the rule of law has been placed on a pedestal

ever since the time of Aristotle.  More recently Dicey has also expounded on

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 14 of 26

the constituents of the rule of law and it is now expected that all modern

democratic jurisdictions accept the rule of law as the guiding light and a

shield available to the people against arbitrary executive action.  As far as

we are concerned, the rule of law has also been accepted as a part of the

basic  structure  of  our  constitutional  jurisprudence.  Undoubtedly,  the

protection and preservation of human rights is one of the most important

aspects of the rule of law.

29. Keeping this in mind, as well as the Universal Declaration of Human

Rights, Parliament enacted the Protection of Human Rights Act, 1993.  The

Statement of Objects and Reasons for the Protection of Human Rights Act,

1993 is of considerable significance and accepts the importance of issues

relating to human rights with a view, inter alia, to bring accountability and

transparency in human rights jurisprudence.  The Statement of Objects and

Reasons reads as under:-

“1.  India  is  a  party  to  the  International  Covenant  on  Civil  and Political Rights and the International Covenant on Economic, Social and Cultural rights, adopted by the General Assembly of the United Nations on the 16th December, 1966.  The human rights embodied in the  aforesaid  covenants  stand  substantially  protected  by  the Constitution.

2. However, there has been growing concern in the country and abroad about issues relating to human rights.  Having regard to this, changing social realities  and the emerging trends in the nature of crime and violence,  Government  has  been reviewing  the  existing laws,  procedures  and systems of  administration of  justice;  with a view to  bringing about  greater  accountability  and transparency in

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 15 of 26

them, and devising efficient and effective methods of dealing with the situation.

3. Wide ranging discussions were held at various fora such as the  Chief   Ministers’  Conference  on  Human  Rights,  seminars organized in various parts of the country and meetings with leaders of various 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  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.   

31. In Ram Deo Chauhan v. Bani Kanta Das5 this Court recognized that

the words ‘human rights’  though not defined in the Universal Declaration of

Human Rights have been defined in the Protection of Human Rights Act,

1993 in very broad terms and that these human rights are enforceable by

courts  in  India.   This  is  what  this  Court  had  to  say  in  this  regard  in

paragraphs 47-49 of the Report:

“Human rights  are  the  basic,  inherent,  immutable  and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are 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

5   (2010) 14 SCC 209

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 16 of 26

committed to the rule of law put into force mechanisms for their enforcement and protection.

Human rights are universal in nature. The Universal Declaration of Human Rights  (hereinafter  referred  to  as  UDHR) adopted by  the General Assembly of the United Nations on 10-12-1948 recognises and requires the observance of certain universal rights, articulated therein,  to  be  human  rights,  and  these  are  acknowledged  and accepted  as  equal  and  inalienable  and  necessary  for  the  inherent dignity and development of an individual. Consequently, though the term “human rights” itself has not been defined in UDHR, the nature and  content  of  human  rights  can  be  understood  from  the  rights enunciated therein.

Possibly  considering  the  wide  sweep  of  such  basic  rights,  the definition of “human rights” in the 1993 Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty,  equality  and  dignity  of  the  individual  guaranteed  by  the Constitution  or  embodied  in  the  International  Covenants  and enforceable by courts in India. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human rights and NHRC has the jurisdiction to intervene for protecting it.”

32. It was submitted (and we agree) that the NHRC has essentially four

roles  to  play, namely  that  of  protector, advisor, monitor  and educator  of

human rights.  It is in this capacity that the NHRC as a protector and monitor

of human rights through effective investigations has issued guidelines from

time to time with regard to various aspects including reporting of matters

relating  to  custodial  death  and  rape,  videography  of  post-mortem

examination etc.   

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 17 of 26

33. On 14th December, 1993 the NHRC directed law and order agencies

across the country to report matters relating to custodial deaths and rapes

within 24 hours.  (At that time, death in police action was classified under

‘custodial deaths’). 34. A couple of years later, on 10th August, 1995 the NHRC sent a letter to

all  Chief  Ministers  advising  them  of  the  necessity  of  introducing

video-filming of post-mortem examinations from 1st October, 1995 onwards

to avoid distortion of facts. This was followed by another letter dated 27th

March, 1997 sent by the NHRC to all Chief Ministers recommending that all

States  adopt  the  “Model  Autopsy  Form”  and  “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 29th March 1997 the NHRC issued Guidelines recommending the

procedure to  be followed by States  and Union Territories  with regard to

encounter deaths. It was recommended, inter alia, that: i. Deaths should be entered in an appropriate register at the Police

Station; ii. 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;

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 18 of 26

iv. Compensation to the victim’s dependants should be considered

in cases ending in conviction. 36. These Guidelines were revised and circulated on 2nd December, 2003

to introduce greater transparency and accountability, since the States were

not  regularly intimating the NHRC of encounter  deaths thereby affecting

statistical  data.  The  revised  Guidelines  contained  the  following  major

changes, in addition to the previous Guidelines: a. If a specific complaint was made against the police, an  

FIR must be lodged; b. A  Magisterial  Inquiry  was  now  mandatory  in  every

encounter death;  c. It also required the State Director General of Police to

send  a  6-monthly  statement  of  details  of  all  deaths  in

police action to the NHRC. 37. As  one  would  expect,  there  was  continued  non-compliance  of  the

Guidelines by the States, making it necessary for the NHRC to further revise

and circulate  the  Guidelines  on 12th May, 2010 containing the  following

major changes, in addition to the previous guidelines: a. The Magisterial  Inquiry  was required  to  be  completed  within  3

months; b. Every death in police action was to be reported to the NHRC by

the District Superintendent of Police within 48 hours; c. A second  report  was  to  be  sent  to  the  NHRC  by  the  District

Superintendent of Police within 3 months, with the Post-Mortem

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 19 of 26

Report,  Inquest  Report,  Ballistic  Report  and  findings  of  the

Magisterial Inquiry.

These Guidelines are currently operational.

38. It  was  submitted  by  the  NHRC  that  all  its  communications  and

Guidelines have remained only on paper and are not enforced by any State

Government.  The submission of the NHRC was that to ensure that good

quality reports are available, the Guidelines need to be strictly enforced.  We

agree with this submission and make it clear that the intention of the NHRC

is to more effectively assist the criminal justice delivery system and avoid

any factual controversies while respecting human rights. It is not as if the

dignity of only living persons needs to be respected but even the dignity of

the  dead  must  be  given  due  respect.   Unless  the  communications  and

Guidelines laid down by the NHRC (which have been prepared after wide

ranging and detailed consultations) are adhered to, the respect and dignity

due to the dead and the human rights of all us will remain only on paper.

Other issues concerning the NHRC

39. Apart from a lack of concern for the communications and Guidelines

issued  by  the  NHRC  or  the  absence  of  attention  that  they  deserve,  the

difficulty  faced  by  the  NHRC  is  that  even  if  there  is  half-hearted

compliance,  there  are  unexplained  delays  on  the  part  of  the  State

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 20 of 26

Government in sending reports; the quality of the reports is certainly not up

to the mark and as expected; sometimes some columns are left blank in the

reports and on other occasions some documents are illegible etc.   All this,

according to the NHRC, hampers its efficient functioning and causes delays

in the implementation of the human rights of aggrieved persons.

40. It was also submitted that the NHRC receives a very large number of

complaints on a daily basis and quite frequently as many as 450 complaints

are received in one day.  The NHRC has been requesting for an adequate

number of trained staff but, instead of additional staff being provided, the

staff strength is depleting.   This has resulted in overburdening the existing

staff.  In this context, our attention was drawn to Section 11 of the Protection

of Human Rights Act, 1993 which reads as follows:

“11. Officers and other staff of the Commission - (1) The Central Government shall make available to the Commission -  (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 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.

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 21 of 26

(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (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  provide

adequate  officers  and  staff  so  that  the  NHRC can  perform its  functions

efficiently. The difficulties faced by the NHRC due to inadequate officers

and staff and something to worry about from a human rights perspective.  

42. The  general  submission  of  the  NHRC  is  that  there  should  be

implementation of its communications and Guidelines, enforcement of the

orders passed by it and serious consideration of the recommendations made

by the NHRC and necessary provision for its effective functioning.  

43. The NHRC has placed before us the following table indicating the

change in  its  work-load and a  careful  scrutiny  of  it  clearly  indicates  the

remedial steps that need to be taken with regard to the staff strength.

Comparison between the Investigation Division Sanctioned Strength and work load during 2014-15 with that in 1995-96.

Present (31-03-2015)

Previous (31-3-1995)

% Increase/decrease

Sanctioned Staff 49** 59* - 16.94%* decrease in staff

strength Total complaints  received annually

1,14,167 7843 1455% increase

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 22 of 26

Investigation 53 13 407% increase Custodial Death  Cases

5496 444 1237% increase

Fact Finding  Cases

1851 706 262% increase

Rapid Action  Cell (RAC) cases (started after  2007)

120 (More than 100 cases were added in last three months

alone).

NIL 120 times

Table-IV

44. Considering  that  such  a  high  powered  body  has  brought  out  its

difficulties through affidavits and written submissions filed in this Court, we

have no doubt that it  has been most unfortunately reduced to a toothless

tiger.  We are of the clear opinion that any request made by the NHRC in this

regard must be expeditiously and favourably respected and considered by

the Union of India otherwise it would become impossible for the NHRC to

function  effectively  and  would  also  invite  avoidable  criticism  regarding

respect for human rights in our country.  We direct the Union of India to take

note of the concerns of the NHRC and remedy them at the earliest and with a

positive outlook.

45. In the context of non-compliance of the orders of the NHRC, it has

also been brought by the NHRC that the directions issued by it for payment

of compensation to victims of violation of human rights are sometimes not

adhered to.  We have seen in Table – III above that there are some instances

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 23 of 26

where the directions given by the NHRC for payment of compensation have

not been implemented by the State of Manipur.  This is very unfortunate but

we accept the assurance of learned senior counsel appearing for the State of

Manipur that the compensation awarded by the NHRC will soon be paid to

the next of kin of the deceased.

46. We expect all State Governments to abide by the directions issued by

the NHRC in regard to compensation and other issues as may arise from

time to time.  If the people of our country are deprived of human rights or

cannot have them enforced, democracy itself would be in peril.

State Human Rights Commissions

47. We  have  been  informed  that  not  all  States  have  Human  Rights

Commissions and this is confirmed from the website of the NHRC.6 While

the Protection of Human Rights Act, 1993 provides for the constitution of a

State Human Rights Commission under Section 21 of the said Act, it is not

made mandatory. However, in our opinion, the provisions of Part III of our

Constitution particularly the essence of Article 21 of the Constitution does

require every State to constitute a State Human Rights Commission, but we

do not think it appropriate to issue any direction, particularly in the present

6  nhrc.nic.in

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 24 of 26

writ  petitions,  to  State  Governments  to  constitute  a  State  Human Rights

Commission. But, we do feel it imperative to bring it to the notice of all

State Governments that it would be but a small step in the protection of life

and  liberty  of  every  person  in  our  country  if  a  State  Human  Rights

Commission is constituted at the earliest.

Annual Reports

48. We must express our disappointment on the failure of the NHRC to

bring out its Annual Reports. A perusal of the website of the NHRC brings

out that the latest Annual Report is of 2012-2013. Several years have gone

by since then, but no Annual Report has been published – we have no idea

what is the stage of preparation or consideration of the subsequent Annual

Reports. We express the hope that given the importance of human rights, the

Annual Reports of the NHRC will be made available with due expedition.

Orders    

1. As  already  directed,  the  Director  of  the  Central  Bureau  of

Investigation will nominate a team and inform us of its composition

within two weeks,  as also any other requirement.   List  these cases

immediately after three weeks for compliance.

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 25 of 26

2. These petitions should also be listed positively in the second week of

January,  2018  to  ensure  compliance  with  our  directions  for

investigation by Central Bureau of Investigation.

……………………………J   (Madan B. Lokur)  

              ……………………………J New Delhi;                                                        (Uday Umesh Lalit)  July  14 , 2017

 W.P. (Crl.) No. 129 of 2012 etc.                                                                                          Page 26 of 26