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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.129 OF 2012

EXTRA JUDICIAL EXECUTION VICTIM FAMILIES  ASSOCIATION (EEVFAM) AND ANOTHER    PETITIONER(S)

VERSUS

UNION OF INDIA & ANOTHER                        RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO.445 OF 2012

SURESH SINGH PETITIONER(S)

VERSUS

UNION OF INDIA & ANOTHER RESPONDENT(S)

O R D E R

                These two writ petitions, each filed under Article 32 of the  

Constitution  of  India,  raise  some disquieting issues pertaining  to  the  

State of Manipur.  In writ petition (criminal) No.129 of 2012, it is stated  

that,  over the years,  a large number of  people,  Indian citizens, have  

been killed by the Manipur Police and other security forces while they  

were in custody or  in stage-managed encounters or  in ways broadly  

termed as ‘extra-judicial  executions’.   In writ  petition (civil)  No.445 of  

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2012,  it  is  stated  that  for  a  very  long time,  the  State  of  Manipur  is  

declared  as  “disturbed  area”  and  is  put  under  the  Armed  Forces  

(Special Powers) Act, 1958, subverting the civil rights of the citizens of  

the State and making it possible for the security forces to kill innocent  

persons with impunity.  

In this order, we deal with the first writ petition, i.e., writ petition  

(criminal) No.129/2012.  

In this writ petition it is stated that during the period May, 1979 to  

May,  2012,  1528  people  were  killed  in  Manipur  in  extra-judicial  

execution. The statement is mainly based on a memorandum prepared  

by ‘Civil Society Coalition on Human Rights in Manipur and the UN’ and  

submitted to one Christof Heyns, Special Rapporteur on extrajudicial,  

summary or arbitrary executions, Mission to India, 19-30 March, 2012.  

The  Memorandum  compiles  the  list  of  1528  people  allegedly  killed  

unlawfully by the State Police or the security forces. The writ petitioners  

later on filed “Compilation 1”  and “Compilation 2”.  In “Compilation 1”  

details are given of ten (10) cases relating to the killings of eleven (11)  

persons (out of the list of 1528); in “Compilation 2”, similarly details are  

given of thirteen (13) cases in which altogether seventeen (17) persons  

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(out of the list of 1528) are alleged to have been killed in extra judicial  

executions.  

A counter affidavit is filed on behalf of the State of Manipur. In  

the  counter  affidavit  there  is  not  only  a  complete  denial  of  the  

allegations  made in  the  writ  petition  but  there  also  seems to  be  an  

attempt to forestall  any examination of  the matter by this Court.  The  

plea is taken that the National Human Rights Commission (NHRC) is  

the proper authority to monitor the cases referred to in the writ petition.  

It  is  stated  that  in  regard  to  all  the  ten  (10)  cases  highlighted  in  

“Compilation 1” filed by the petitioners, reports have been submitted to it  

and  in  none of  those cases  the  NHRC has  recorded any  finding  of  

violation of human rights. It is stated that the occasion for this Court to  

examine those cases would arise only if  it  holds that the NHRC had  

failed to perform its statutory functions in safeguarding the human rights  

of the people in the State.  This Court should not examine this matter  

directly but should only ask the NHRC to indicate the status of the cases  

listed and highlighted in the writ petition. We are unable even to follow  

such  a  plea.  The  course  suggested  by  the  State  will  completely  

dissipate the vigour and vitality of Article 32 of the Constitution. Article  

21  coupled  with  Article  32  of  the  Constitution  provides  the  finest  

guarantee and the most effective protection for the most precious of all  

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rights, namely, the right to life and personal liberty of every person. Any  

indication of the violation of the right to life or personal liberty would put  

all the faculties of this Court at high alert to find out the truth and in case  

the Court finds that there has, in fact, been violation of the right to life  

and personal liberty of any person, it would be the Court’s bounden duty  

to step-in to protect those rights against the unlawful onslaught by the  

State. We, therefore, see no reason not to examine the matter directly  

but only vicariously and second-hand, through the agency of the NHRC.  

A reference is next made in the counter affidavit to an appeal  

pending before this  Court  against  the judgment  of  the Bombay High  

Court and a writ  petition, also pending before this Court,  filed by the  

State of Gujarat on the subject of fake encounters and it is stated that  

this  case should be tagged with  those other  two cases to  be heard  

together. We fail to see any relevance of the two cases referred to in the  

counter affidavit and, in our view, the plea that these two writ petitions  

should only be heard along with those two cases is meant to detract  

from consideration the grave issues raised in the writ petition.  

It  is  thirdly  stated  in  the  counter  affidavit  that  the  State  of  

Manipur is faced with the menace of  insurgency for many years and  

details are given of  policemen and civilians killed and injured by the  

insurgents. There are about 30 extremist organizations in the State out  

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of which six are very powerful and they are armed with sophisticated  

weapons. Their aim and object is to secede from the Republic of India  

and to form an independent State of Manipur. For realization of their  

objective they have been indulging in violent activities, including killing  

of civilians and members of security forces.  It is stated in the counter  

affidavit that during the period 2000 to October, 2012, 105 policemen,  

260  security  forces  personnel,  and  1214  civilians  were  killed;  the  

number of injured during the same period is 178 for the policemen, 466  

for members of security forces and 1173 for civilians.

There is no denying that Manipur is facing the grave threat of  

insurgency.  It is also clear that a number of the insurgent groups are  

operating  there,  some  of  which  are  heavily  armed.  These  groups  

indulge in heinous crimes like extortion and killing of people to establish  

their hegemony.  It is also evident from the counter affidavit filed by the  

State that a number of police personnel and members of security forces  

have laid down their lives or received serious injuries in fighting against  

insurgency. But,  citing the number of  the policemen and the security  

forces personnel and the civilians killed and injured at the hands of the  

insurgents  does  not  really  answer  the  issues  raised  by  the  writ  

petitioners.  

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In  People’s  Union  for  Civil  Liberties  v.  Union  of  India  and  

another1, this Court earlier dealt with a similar issue from Manipur itself.  

In that  case, it  was alleged that two persons along with others were  

seized by the police and taken in a truck to a distant place and shot  

there. In an inquiry by the District and Sessions Judge, Manipur (West),  

held  on  the  direction  of  this  Court,  the  allegation  was  found  to  be  

correct.  In  that  case,  dealing  with  question  of  the  right  to  life  in  a  

situation where the State was infested with terrorism and insurgency,  

this Court in paragraphs 5 and 6 of the judgment observed as follows:

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

6. In  view  of  the  fact  that  we  have  accepted  the  finding  recorded by the learned District and Sessions Judge, it is not  possible to accede to the contention of Ms Janani insofar as  

1 (1997) 3 SCC 433

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the manner in which the incident had taken place. It is true that  Manipur is a disturbed area, that there appears to be a good  amount of terrorist activity affecting public order and, may be,  even security of that State. It  may also be that under these  conditions, certain additional and unusual powers have to be  given to the police to deal with terrorism. It may be necessary  to fight terrorism with a strong hand which may involve vesting  of  good amount  of  discretion  in  the  police  officers  or  other  paramilitary forces engaged in fighting them. If the version of  the police with respect to the incident in question were true,  there could have been no question of any interference by the  court. Nobody can say that the police should wait till they are  shot at. It is for the force on the spot to decide when to act,  how to act and where to act. It is not for the court to say how  the terrorists should be fought. We cannot be blind to the fact  that even after fifty years of our independence, our territorial  integrity  is  not  fully  secure.  There  are  several  types  of  separatist and terrorist activities in several parts of the country.  They  have  to  be  subdued.  Whether  they  should  be  fought  politically or be dealt with by force is a matter of policy for the  Government  to  determine.  The  courts  may  not  be  the  appropriate forum to determine those questions.  All  this is  beyond dispute. But the present case appears to be one  where  two  persons  along  with  some  others  were  just  seized from a hut, taken to a long distance away in a truck  and shot there. This type of activity cannot certainly be  countenanced by the courts even in the case of disturbed  areas.  If  the  police  had  information  that  terrorists  were  gathering at a particular place and if they had surprised them  and arrested them, the proper course for  them was to deal  with them according to law.  “Administrative liquidation” was  certainly not a course open to them.”

(emphasis added)

We respectfully reiterate what was earlier said by the Court in  

People’s Union for Civil Liberties.

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In  1997,  in  the  Peoples’  Union  for  Civil  Liberties this  Court,  

dealing with the case of killing of two persons in Manipur had cautioned  

the State against “Administrative liquidation”. But, after 15 years in this  

case, we are faced with similar allegations on a much larger scale.   

For  this  Court,  the  life  of  a  policeman  or  a  member  of  the  

security forces is no less precious and valuable than any other person.  

The lives lost in the fight against terrorism and insurgency are indeed  

the  most  grievous  loss.  But  to  the  State  it  is  not  open  to  cite  the  

numbers  of  policemen  and  security  forces  killed  to  justify  custodial  

death,  fake  encounter  or  what  this  Court  had  called  “Administrative  

liquidation”.  It  is  simply  not  permitted  by  the  Constitution.  And  in  a  

situation where the Court finds a person’s rights, specially the right to  

life under assault by the State or the agencies of the State, it must step-

in and stand with the individual and prohibit the State or its agencies  

from violating the rights guaranteed under the Constitution. That is the  

role of this Court and it would perform it under all circumstances. We,  

thus,  find that  the third plea raised in the counter  affidavit  is  equally  

without substance.  

Lastly,  the  counter  affidavit,  and  the  Supplementary  Counter  

Affidavit  filed  by  the  State  give  the  State’s  version  of  the  10  cases  

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highlighted in the Compilation 1, filed by the petitioners. But on that we  

would not like to make any comment at this stage.

The Union of India has also filed a separate counter affidavit. It  

is a more responsible affidavit in that it does not evade the issues nor  

does it try to dissuade the Court from examining the cases of alleged  

extra-judicial executions brought to its notice by the writ petitioners. In  

the  counter  affidavit  filed  by  the  Union,  first  a  reference is  made to  

different legal provisions (Section 146 and Sections 129 to 132 of the  

Criminal Procedure Code, Sections 99 to 106 in Chapter IV of the Indian  

Penal Code and Section 4 of the Armed Forces (Special Powers) Act,  

1959) and it  is  contended that  subject  to the conditions stipulated in  

those provisions, killing of a person by a police officer or a member of  

the armed forces may not amount to an offence and may be justified in  

law. It is stated in the counter affidavit that all the cases listed and/or  

highlighted in the writ petition and described as extra-judicial executions  

are cases of persons who died during counter-insurgency operations or  

in performance of other lawful duties by the police and the personnel of  

the armed forces. It is emphasized that in most of the cases the so-

called  victims  might  have  been  killed  in  the  lawful  exercise  of  the  

powers and/or in discharge of official duties by the police and the armed  

forces  personnel.   It  is  further  said  that  “public  order”  and,  by  

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implication,  the  maintenance  of  “law  and  order”  are  primarily  State  

subjects and the role of the Central Government in deploying the armed  

forces personnel in the State is only supportive in aid of the law and  

order machinery of the State.  The State of Manipur has the primary  

duty to deal  with the issue of  investigation in relevant cases, except  

where provided to the contrary in any other law for the time being in  

force. It is stated that the “very gloomy picture” of the State of Manipur  

sought  to  be  presented  by  the  writ  petitioners  is  incorrect  and  

misleading. It is asserted that Manipur is fully and completely integrated  

with  the  rest  of  the  country  and  it  is  pointed  out  that  in  the  1990  

elections the voting turnout for the 60 assembly seats in the State was  

89.95%. Similarly, during the recent 2012 assembly elections, the voting  

turnout was 83.24%. It is added that the voting percentage in Manipur is  

amongst the highest in the country as a whole and it clearly shows that  

the people of Manipur have taken active participation in the elections  

showing their full faith in the Constitution and the constitutional process.  

Coming to the issue of  insurgency, it  is  stated in the counter  

affidavit as under:

“It  is  only  a  handful  of  disgruntled  elements  who have  formed  associations/  groups  that  indulge  in  militant  and  unlawful  activities  in  order  to  retain  their  influence  and  hegemony in the society. These groups also challenge the  sovereignty and integrity of  the country by following aims  

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and  objectives  which  are  secessionist  in  nature.   It  is  emphasized that only around 1500 militants are holding a  population of 23 lakhs in Manipur to ransom and keeping  the people in constant fear. The root cause of militancy in  Manipur  is  the  constant  endeavour  of  these  insurgent  groups so that they can continue to extort money and the  leaders of such groups can continue to lead luxurious life in  foreign  countries.   The  tribal  divide  and  factions  in  the  society and the unemployed youth are being exploited by  these militant outfits to fuel tension in the society.”  

It  is  further stated in paragraph 13 of  the counter affidavit  as  

under:

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

 The counter affidavit goes on to explain that the operations of  

not  only  the  State  Police  but  the  different  security  forces  under  the  

control of the Central Government are being strictly monitored and kept  

within the parameters set out by the different laws under which those  

forces operate.  It  is  stated that  different statutory agencies acting as  

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watchdog  ensure  that  the  armed  forces  do  not  overstep  the  

Constitutional  or  the  legal  limits  in  carrying  out  the  anti-insurgency  

operations.

Ms. Guruswamy, the learned  amicus has,  on the other hand,  

presented before us tables and charts showing the inconsistencies in  

the materials produced by the State of Manipur itself concerning the 10  

cases highlighted in “Compilation 1” filed by the petitioners. She also  

submitted  that  though  enquiries  were  purported  to  be  held  by  an  

Executive Magistrate in the 10 cases described in “Compilation 1”, in  

none of those cases the kin of the victims came before the Magistrate to  

give  their  statements  even though they  were  approaching the  court,  

complaining that the victims were killed in fake encounters. She further  

pointed out that in some of the cases even the police/security forces  

personnel  who were engaged in  the killings did  not  turn up,  despite  

summons  issued  by  the  Magistrate,  to  give  their  version  of  the  

occurrence and the Magistrate closed the enquiry, recording that there  

was nothing to indicate that the victims were killed unlawfully. In some  

cases the Magistrate, even while recording the finding that the case did  

not  appear  to  be  one  of  fake  encounter  made  the  concluding  

observation that it would be helpful to sensitize the police/armed forces  

in human rights. She submitted that the so-called enquiries held by the  

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Magistrate were wholly unsatisfactory and no reliance could be placed  

on the findings recorded in those enquiries.  

Apart  from  the  criticisms  made  by  the  amicus against  the  

Magisterial  enquiries  held  in  the  10  cases  of  “Compilation  1”  it  is  

important to note that a number of cases cited by the petitioners had  

gone to the Gauhati High Court and on the direction of the High Court,  

inquires,  of  a judicial  nature,  were made into the killings of  (1) Azad  

Khan,  age  12  years  (according  to  the  State,  15  years)  (from  

“Compilation  1”),  (2)Nongmaithem Michael  Singh,  age  32  years,  (3)  

Ningombam Gopal  Singh,  age  39  years,  (4)  (i)  Salam Gurung alias  

Jingo, age 24 years, (ii) Soubam Baocha alias Shachinta, age 24 years  

(5)  (i)  Mutum Herojit  Singh,  age 28 years  (ii)  Mutum Rajen,  age 22  

years (6) Ngangbam Naoba alias Phulchand Singh, age 27 years (7)  

Sapam Gitachandra  Singh,  age 22 years  (8)  (i)  Kabrambam Premjit  

Singh, (ii) Elangbam Kanto Singh (9) Longjam Uttamkumar Singh, age  

34 years (10) Loitongbam Satish @ Tomba Singh, age 34 years (11)  

Thockhom Inao @ Herojit  Singh,  age 31 years,  (12) Khumallambam  

Debeshower  Singh  (13)  (i)  Km.  Yumnam  Robita  Devi  (ii)  Angom  

Romajitn Singh (14) Thoudem Shantikumar Singh (all from “Compilation  

2”).

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In all those cases the judicial inquiry found that the victims were  

not members of any insurgent or unlawful groups and they were killed  

by  the  police  or  security  forces  in  cold  blood  and  stage-managed  

encounters.  

It  is  stated  on  behalf  of  the  petitioners  that  though  it  was  

established in the judicial  enquiry that  those persons were victims of  

extra-judicial executions, the High Court simply directed for payment of  

monetary compensation to the kins of the victims. Learned Counsel for  

the petitioners submitted that payment of rupees two to four lakhs for  

killing a person from funds that are not subjected to any audit, instead of  

any accountability for cold blooded murder, perfectly suits the security  

forces and they only get encouraged to carry out further killings with  

impunity.

On a careful consideration of  the averments made in the writ  

petition  and  the  counter  affidavits  filed  by  the  respondents  and  on  

hearing Ms Guruswamy, the amicus, Mr. Gonsalves the learned counsel  

appearing  for  the writ  petitioners,  Mr.  Kuhad,  the Additional  Solicitor  

General  appearing  for  the  Union  of  India,  Mr.  Ranjit  Kumar,  senior  

advocate appearing for the State of Manipur and Ms. Shobha, advocate  

appearing for the NHRC, we find it  impossible to overlook the matter  

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without further investigation. We are clearly of the view that this matter  

requires further careful and deeper consideration.  

The  writ  petitioners  make  the  prayer  to  constitute  a  Special  

Investigation Team comprising police officers from outside Manipur to  

investigate the cases of unlawful killings listed in the writ petition and to  

prosecute the alleged offenders but at this stage we are not inclined to  

appoint  any Special  investigation Team or to direct  any investigation  

under the Code of Criminal Procedure. Instead, we would first like to be  

fully satisfied about the truth of  the allegations concerning the cases  

cited by the writ petitioners. To that end, we propose to appoint a high  

powered commission that would tell us the correct facts in regard to the  

killings of victims in the cases cited by the petitioners. We, accordingly,  

constitute a three-member commission as under:

1. Mr. Justice N. Santosh Hegde, a former Judge of the  

Supreme Court of India, as Chairperson

2. Mr.  J.  M.  Lyngdoh,  former  Chief  Election  

Commissioner, as Member

3. Mr.  Ajay  Kumar  Singh,  former  DGP  and  IGP,  

Karnataka.

 We request the Commission to make a thorough enquiry in the  

first six cases as detailed in “Compilation 1”, filed by the petitioners and  

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record a finding regarding the past antecedents of the victims and the  

circumstances in which they were killed. The State Government and all  

other concerned agencies are directed to hand over to the Commission,  

without any delay, all records, materials and evidences relating to the  

cases, as directed above, for holding the enquiry. It will be open to the  

Commission  to  take  statements  of  witnesses  in  connection  with  the  

enquiry conducted by it and it will, of course, be free to devise its own  

procedure for holding the enquiry. In light of the enquiries made by it,  

the Commission will also address the larger question of the role of the  

State Police and the security forces in Manipur. The Commission will  

also make a report regarding the functioning of  the State Police and  

security  forces in  the State of  Manipur  and in  case it  finds  that  the  

actions  of  the  police  and/or  the  security  forces  transgress  the  legal  

bounds the Commission shall  make its recommendations for keeping  

the  police  and  the  security  forces  within  the  legal  bounds  without  

compromising the fight against insurgency.  

The Commission is  requested to  give its  report  within  twelve  

weeks from today.

The Central  Government and the Government of  the State of  

Manipur  are  directed  to  extend  full  facilities,  including  manpower  

support  and  secretarial  assistance  as  may  be  desired  by  the  

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Commission to effectively and expeditiously carry out the task assigned  

to it by the Court.

The  Registry  is  directed  to  furnish  a  copy  of  this  order  and  

complete sets of briefs in both the writ petitions to each of the members  

of the Commission forthwith.   

Put up on receipt of the report by the Commission.  

…..………………………….J. (Aftab Alam)

…..………………………….J. (Ranjana Prakash Desai)

New Delhi; January 4, 2013.  

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