IN THE HIGH COURT OF ALLAHABAD
C.M.W.P. No. 24962 of 1998
Decided On: 12.01.2000
Appellants: Peoples' Union for Civil Liberties, U.P.
Bench
Vs.
Respondent: State of U.P. and others
2000(1)AWC729
Hon'ble Judges:
Binod Kumar Roy and R.K. Singh, JJ.
Counsels:
For Appellant: Ravi Kiran Jain, K.K. Roy and Pushkar
Mehrotra, Advs.
For Respondents: R.P. Goyal, Yatindra Singh, H.R.
Mishra and S.K. Agrawal, Advs.
Subject: Constitution
Acts/Rules/Orders:
Protection of Human Rights Act, 1993 - Sections 2(1),
3, 9, 10, 12 to 18, 20, 21, 21(1), (2) and (3), 22,
22(1), 29, 30 and 31; Constitution of India - Articles
215 and 226; Protection of Human Rights Ordinance,
1993; Code of Criminal Procedure, 1973 - Sections 58
and 176; Indian Evidence Act, 1872 - Section 123;
President's Rule; Consumer Protection Act, 1986
Cases Referred:
Uttarakhand Sangharsh Samiti v. State of U.P. C.M.W.P.
No. 32984 of 1994; Hari Krishna Maheshwari @ Hari
Maheshwari v. State of U.P., 1996 JIC 1034; D.K. Basu
v. State of West Bengal; S.P. Gupta v. Union of India,
AIR 1982 SC 149; State of Punjab v. Sodhi Sukhdeo
Singh, AIR 1961 SC 493; Amar Chand Butail, AIR 1964 SC
1658; K. Kakkanath v. State, AIR 1997 SC 128; Indian
Railways v. D.R.T.S.A., 1993 Supp (4) SCC 474; State
of Punjab v. R.L. Bagga, 1998 (4) SCC 117; A.K. Roy v.
Union of India, AIR 1982 SC 710; Aeltemesh Rein v.
Union of India, 1988 (4) SCC 54, AIR 1988 SC 1768; Bar
Council of U.P. v. Union of India, 1997 (3) UPLBEC
1551; Misbah Alam Sheikh v. State of Maharashtra, 1997
(4) SCC 528; Tata Cellular v. Union, 1994 (6) SCC 651;
R.P. Kapoor v. Sardar Pratap Singh Kairon, AIR 1961 SC
1117; Premjit Kaur v. State of Punjab JT 1998 (6) SC
338; General Misbah Alam Sheikh, 91997) 4 SCC 528;
Amar Chand Butail v. Union of India, AIR 1964 SC 1658;
Ram Chander v. Union of India, AIR 1986 SC 1173; Union
of India v. S.P. Anand, (1998) 6 SCC 466; Supreme
Court Advocate on Record v. Union of India, 1993 (4)
SCC 441; H.C. Suman v. RENEC Home Building Society,
AIR 1991 SC 2160; Ashok K. Johri v. State of U.P., AIR
1997 SC 610; Neelabati Behra v. State of Orissa, AIR
1993 SC 1960; Common Cause v. Union of India, 1992(1)
SCC 707
JUDGMENT
Binod Kumar Roy and R. K. Singh, JJ.
1. The petitioner has come up to this Court for
commanding respondent No. 1 the State of U. P. to (i)
constitute a State Human Rights Commission
(hereinafter referred to as S.H.R.C.) under Section 21
of the Protection of Human Rights Act. 1993
(hereinafter referred to as the Act) and (ii) create
Human Rights Courts at district level under Section 30
of the Act.
2. The case of the petitioner is to this effect : The
petitioner is a non-political organisation of such
citizens of India who are committed to promote and
protect, inter alia, human rights ; a copy of its aims
and object is being filed as Annexure-1 ; after
recording his satisfaction that the circumstances
existed for an immediate action for protection of
human rights and to achieve the objects/purpose as
contained in Section 2 (1) (d) read with Preamble the
President of India promulgated. Protection of Human
Rights Ordinance, 1993 (Ordinance No. 30 of 1993) on
28.9.1993 which was later replaced by the Act ;
Section 3 of the Act provides that the Central
Government shall constitute a body to be known as the
National Human Rights Commission (hereinafter referred
to as N.H.R.C.) pursuant to which respondent No. 3 was
constituted ; Section 21 of the Act provides that the
State Government may constitute a body to be known as
S.H.R.C. ; respondent No. 3 started functioning
immediately, and receiving complaints in regard to
custodial deaths, rapes, fake encounters and other
police excess ; this Court passed direction for
consideration by the State of U. P. for establishing a
S.H.R.C. on the ground that the legislative intent of
the Parliament is being ignored for long vide its
judgment and order dated 9.2.1996 in C.M.W.P. No.
32984 of 1994, Uttarakhand Sangharsh Samiti v. State
of U. P. : the Governor of U. P., when the State was
under President's Rule, issued a Notification on
4.4.1996 under Section 21 (1) of the Act for
constitution of S.H.R.C. realising the extremely grim
condition of law and order problem in the State ; the
former C.J.I. Sri R. N. Misra, after he became a
Member of Rajya Sabha, revealed on 22.7.1998 on the
floor of the Rajya Sabha of the fact aforementioned
which is evident from the report published in the
newspaper "Times of India" 23.7.1998 Edition appended
as Annexure-2 ; respondent No. 3 in its annual report
1996-97 stated that a country of the size and
diversity of India needs Human Right Commission at the
State level, the reasons are obvious, the redressal of
grievances must be swift and inexpensive, the message
of human rights must reach the grass-root level in the
languages of the people of the country, the federal
character of our Constitution must be respected, the
nation-wide challenge needs an army of activists in
each State and in each district, if societal and
attitudinal changes are to be brought about" : State
Human Rights Commissions have been established in the
States of West Bengal, Himachal Pradesh, Assam, Punjab
and Tamil Nadu ; respondent No. 3 had received 8497
complaints from our State out of total number of 20833
in 1996-97 ; Sri Kalyan Singh, the present Chief
Minister had openly said in a Press conference and in
his interview with Sri Rajesh Joshi Special
Correspondent of "Out Look" that a criminal should
have no human rights, he should either be in jail or
dead ; according to Press report as many as 156
criminals have been killed in encounter with the
police ; it is common knowledge that the State is also
prone to communal disturbances about which this Court
should take judicial notice ; the Parliamentary
Affairs Minister Sri Hukum Singh on 23.7.1998 made a
statement on the floor of the Assembly that the
Government has taken a decision that there is no need
of constitution of a State Human Rights Commission for
the reasons mentioned in his speech and hence this
writ petition.
3. This writ petition came up for consideration before
one of us (Binod Kumar Roy, J.) and Hon'ble Mr.
Justice R. K. Mahajan, since retired, on 10.8.98.
After submissions were made by Sri Ravi Kiran Jain,
the learned senior counsel appearing on behalf of the
petitioner, time was granted to Sri H. R. Misra,
learned standing counsel with an observation, inter
alia, that the writ petition is likely to be disposed
of at the stage of admission itself and that a copy of
the counter-affidavit, if any, must be served on the
petitioner by 21.8.98.
4. Counter-affidavit was filed on behalf of respondent
Nos. 1 and 2, sworn by Secretary (Home), Government of
U. P. on 21.8.98. It was stated. Inter alia, therein
that the State attaches utmost importance to the Human
Rights and a Human Right Cell has been constituted (i)
in the Home Department, and (ii) in the Police
Organisation under the direct supervision of D.G.P.,
U. P. and an officer of the rank of A.D.G. is its
incharge : the State Government is endeavouring to
protect the fundamental rights and Human Rights of the
person and is taking all precautions to ensure that no
violation of human rights or abatement thereof or
negligence in the prevention of such violation by any
one should take place ; the State is taking all action
necessary to prevent the abuse, violation, abatement
of human rights as welt as any negligence in the
prevention of such violation ; it has already
constituted Minority Commission. Backward Caste
Commission and Schedule Caste Schedule Tribe
Commission ; any violation of Human Rights' or
abetment thereof or negligence in the prevention of
such violation with regards to women, minorities,
backward castes, scheduled castes and scheduled tribes
are being inquired into, intervened. Investigated upon
and reviewed ; the factors and safeguards provided by
or under the Constitution or any law for the time
being in force and for protection of rights are being
looked into by the respective Commissions ; it is
mandatory for the officer incharge of any police
station to report about every arrest to concerned
District Magistrate, who can make an enquiry with
regard to any arrest with or without warrant ; Section
58 of the Code of Criminal Procedure has sufficient
checks on any violation of Human Rights in the police
custody ; under Section 176 of the Code of Criminal
Procedure whenever any death occurs in police custody
or a person dies in a police encounter a Magisterial
enquiry can be ordered to bring about correct facts ;
whenever any report is made under the aforementioned
sections the Magistrate takes all necessary action in
accordance with law to safeguard the person in police
custody and ensures that no violation of any
fundamental right and Human Right of the person takes
place ; enlightened citizens keep invoking these
provisions to ensure that the Human Rights are not
violated by the police ; and in view of the
aforementioned facts and circumstances on 16.6.98 the
State decided not to constitute the State Human Rights
Commission at this stage, the constitution of which is
also not mandatory as the Act has left a decision to
be taken by the State Government in this regard ; the
figures as obtained from the annual report 1996-97 of
the National Human Rights Commission showed that 2900
were the number of total cases registered during
1995-96 and 8728 during 1996-97 ; the State Government
attaches utmost Importance to maintenance of law and
order and the contention that they are extremely grim
is denied ; the Notification dated April 4, 1996 was
issued by the State Government with a view to honour
the suggestions made by this Court during the
Presidential Rule and the contention that it was
issued on account of 'extremely grim law and order
situation' is not correct ; it would be wrong to
conclude that only S.H.R.C. could address to the
public grievances ; the popular Government would
directly handle all matters relating to violation of
human rights, if any, and through the Legislature,
which is the supreme body before which matters
relating to Human Rights violation are brought up and
debated ; besides Judicial Officers are competent to
take cognizance where someone has suffered due to
wrongful act ; rapid rise in the number of complaints
received by the N.H.R.C. Is a pointer of increasing
awareness regarding Human Rights as well as its
activities ; N.H.R.C. is based in Delhi, adjacent to
the State of U. P. which is the most populous, and its
citizen finds it convenient to address the grievances
to it due to its proximity, which is the prime factor
responsible for origin of maximum complaints ; as per
annual report 1996-97 N.H.R.C. U. P. accounts for
42.17% of total cases out of which 8048 cases 42.8%)
were dismissed in limine during 1996-97. out of 2272
cases disposed of with directions U. P. accounted for
56.99% and out of 6503 cases considered/admitted for
disposal during 1996-97 U. P. accounted for 40.38% ;
the statements made in paragraphs 37, 38 and 39
(pertaining to the statements made in a Press
conference and in the interview by the Special
Correspondent Out Look) are false and frivolous and
are denied and it is submitted that the statements
should be read with reference to context "clamping
down" the illegal activities of criminals in order to
maintain "law and order" and emphasizes that the
police should not give up its fight against offenders
of law and Human Rights and in safeguarding the
law-abiding citizens ; there is complete communal
harmony at present : even the long standing Shia-Sunni
dispute at Lucknow has been resolved amicably recently
: the direction of the State Government to the police
is to improve law and order situation by clamping down
heavily on the criminals and to make the society a
safe place for law-abiding citizen and in pursuance of
this objective stringent measures have been taken by
the police : in some hot pursuit there have been
exchange of fire between the police and the criminals
in which at times policemen and/or criminals fall
victim which are commonly termed as 'encounter',
though it is well within the ambit of law for the
police to fire in exercise of its right of
self-defence and to term this as extra judicial
killings of the criminal is distortion of fact.
5. To the aforementioned counter-affidavit a rejoinder
was filed by the petitioner stating following facts :
There has been concealment of a very material fact
that the Chairperson of National Human Rights
Commission wrote a letter on 30.7.1998 (appended as
Annexure-RA 1) to the respondent No. 2 referring to
the notification for setting up of a State Human
Rights Commission after taking into consideration of
his suggestions and the view of the Division Bench of
this Court telling that a logical sequence would have
been a final notification under Section 21 (2) of the
Act, the letter further indicated that substantial
percentage of the complaints received in his office
pertain to this State and a State Commission will
provide quicker access to remedy to the victims of
Human Rights violation and will obviate the need for
the aggrieved parties to approach Courts and burden
the already heavy docket of the Courts of law ; yet
another Division Bench of this Court in Hart Krishna
Maheshwari @ Hari Maheshwari v. State of U. P., 1996
JIC 1034, had made request to the State Government to
constitute a State Human Rights Commission and Human
Rights Courts as provided under the Act as early as
possible ; in a matter like this in which extremely
serious allegations of violation of Human Rights were
made against him, the Chief Minister himself should
have filed his counter-affidavit ; in regard to the
Press reports the petitioner shall place the clipping
of the newspapers and news magazines containing the
reports ; according to the Press report the greatest
form of Human Rights violations are occurring in U. P.
these days, like of which might not have been found in
any democratic country at any point of time in the
human history ; in D. K. Basu v. State of West Bengal,
decided by the Supreme Court on 18.12.96, it took
judicial notice of the fact that custodial torture
could be ascertained by reading morning newspapers and
the High Court may also take notice of the relevant
reports through Press ; despite request of National
Human Rights Commission and by this Court through its
two Division Bench judgments the decision of this
State Government not to constitute a State Human
Rights Commission shows that it has no regard to Human
Rights and no concept in regard to what the Human
Rights are and why such a Commission is required, and
its disregard in that regard requires passing of a
very severe stricture by this Court against the
present Government.
6. On 25.8.1998 the case was heard further by the
earlier Division Bench, as stated above comprising one
of us. The learned Advocate General came up with a
prayer for adjournment on the ground that some new
facts have been stated in the petitioner's rejoinder.
The Bench repeatedly asked as to whether the State
Government has any real Intention to constitute a
State Human Right Commission or not in regard to which
the learned Advocate General took up a stand that this
will require some further consultation with the
Government. The Bench also reiterated that the Court
intends to dispose of this writ petition at the stage
of admission itself.
7. On 9.9.1998 this case was placed before a Division
Bench consisting one of us (Binod Kumar Roy, J.). and
Hon'ble Mr. Justice J. C. Mishra. The case was heard
directing the State Government to produce the entire
records to know as to what action it has taken in
regard to the directions made by the Court earlier in
the two cases (Uttarakhand and H. K. Maheshwari) and
in regard to the request made by the Chairperson of
National Human Rights Commission. The National Human
Rights Commission was permitted to be impleaded as
respondent No. 3.
8. The case was again listed before the aforementioned
Bench on 22.9.1998 and Sri Shashi Kant Agrawal,
learned counsel appearing on behalf of respondent No.
3 informed the Bench that he has instructions to state
that the Chairperson of respondent No. 3 has already
twice recommended to the State Government for setting
up of a State Human Rights Commission at Lucknow as
also in districts at the earliest and that respondent
No. 3 stands by recommendation aforementioned made by
its Chairperson.
9. On 24.9.1998 the Bench was informed by the learned
Advocate General that the two mandamus issued earlier
by the Court were considered by the Cabinet which,
however, took a decision not to constitute a State
Human Rights Commission as it was considered not
beneficial. On that day an affidavit was filed, sworn
by the Under Secretary (Home), stating that the letter
sent by the Chairperson of National Human Rights
Commission has not been received. The learned Advocate
General further informed the Bench that there will be
every likelihood of Inclusion of an agenda in the next
meeting of the Cabinet for consideration in regard to
the desirability of constitution of a State Human
Rights Commission. In this view of the matter the case
was adjourned noting in its order dated 24.9.1998 that
the letter of the Chairperson of National Human Rights
Commission has already been reproduced in Court's
order dated 9.9.1998 and since the Court after pooja
holiday will reopen on 5.10.1998 the case is adjourned
to 27.10.1998 hoping and trusting that the two
mandamus issued by the Court earlier and the letter of
the Chairperson of National Human Right Commission
shall be considered by the Cabinet further stating
that it is needless to clarify what the word
"considers" means.
10. On 27.10.1998 this case was listed before a
Division Bench comprising M. Katju and S. L. Saraf,
JJ., but it was directed to be placed before a Bench
of which Hon'ble Mr. Justice M. Katju is not a member.
The then Hon'ble the Chief Justice vide his order
dated 6.11.1998 directed this case to be placed before
a Bench presided over by one of us (Binod Kumar Roy,
J.). That is how this case was placed before this
Bench.
11. An affidavit of General Secretary. Home
Department, U. P. Government was filed stating that
the question of desirability of constituting State
Human Rights Commission was considered in extenso by
the State Cabinet and it was decided that as the
existing institutional framework for redressal of
Human Rights related grievances are adequate,
therefore, Its constitution is not necessary : and
that pursuant to the aforesaid decision of the
Cabinet, vide Notification No. 2238/6-H.R./98 dated
October 26, 1998 (copy enclosed as Annexure-1 to this
affidavit) the earlier Notification No. 2254 KHA/6-496
dated April 4, 1996 has been rescinded.
12. We heard Sri R. K. Jain, learned senior counsel in
part, who drew our attention to the fact that the
direction in regard to production of the entire
records by the State was not compiled with. His
submissions will be referred to later. We adjourned
this case for further hearing reiterating the earlier
order of the Court for production of the records by
the State.
13. On 16.11.98 the petitioner filed an application
under Article 2-15 of the Constitution of India for
taking suo motu action of contempt against Sri Kalyan
Singh, the Chief Minister and his Cabinet colleagues
for the reasons stated in the accompanying affidavit.
14. On 20.11.98 Sri Yatindra Singh, the learned
Additional Advocate General filed documents in a
sealed cover but indicated that the State claims
privilege and intends to file an appropriate
application supported by an affidavit.
15. On 1.12.98 an application was filed on behalf of
the State praying to recall the order summoning the
records and uphold the privilege and protection of the
records and for return of the documents on the
grounds, inter alia, that apart from the fact that
those documents are not required for decision of the
case, they cannot be looked into in view of Article
163 (3) of the Constitution and are also privileged
documents under Section 123 of the Evidence Act. In
the affidavit supporting the said application. It has
been added that the records are unpublished official
records relating to the affairs of the State, which
include papers prepared for the submission to the
Cabinet for taking a decision about establishment of
the State Human Rights Commission, Cabinet meetings,
Cabinet papers and high level documents relating to
framing of policy which are confidential as well as of
sensitive nature : and that the public Interest will
suffer by their disclosure.
16. An objection was filed by the petitioner in regard
to the application aforementioned stating, inter alia,
that it is a result of an afterthought ; the claim of
privilege and protection is manifestly misconceived ;
the submission that the public interest will suffer by
the disclosure of the documents, and as such
production is withheld, is of the deponent of the
affidavit and not based on the legal advice of the
Advocate General or some State Law Officer, the State
has come out for the first time at the advanced stage
of hearing that they are entitled to privilege : by no
stretch of imagination it can be conceived that the
disclosure of documents will be against public
interest rather non-disclosure of the documents is
injurious to the public interest.
17. Thereafter Sri S. K. Agrawal, learned counsel for
respondent No. 3, was heard on 4.1.1999 and 5.1.1999.
On 5.1.1999 Sri Agrawal Informed us that a writ
petition was filed earlier before the Lucknow Bench of
the Court in this regard but details thereof is not
available with him and he was requested to furnish
details thereof. Sri S. K. Agrawal, had contended as
follows : The Notification under Section 21 (1) of the
Act constituting State Human Rights Commission having
been made, the only Issue before this Court was to
command the Government of U. P. to (a) nominate the
Members of the Commission in terms of Section 21 (2)
of the Act and (b) appoint necessary staff in
accordance with Section 21 (3) of the Act and we are
very much competent to Issue such a direction.
Reliance in this regard was placed by him on the
observations made by the Supreme Court in Paragraphs
631. 734, 735 and 1251 to 1253 of S. P. Gupta v. Union
of India, AW 1982 SC 149. The direction of this Court
in Its order dated 24.4.1998 for consideration of the
matter has really not been obeyed and the
circumstances clearly unfold the capricious and mala
fide conduct of the State Government. In the garb of
consideration of the Issues, it was not open for the
Government to recall the notification constituting the
State Human Rights Commission Itself inasmuch as the
Court never meant nor had it permitted the Government
to do so. National Human Rights Commission stands by
every word written through its Chairperson to the
Chief Minister advising him for constitution of State
Human Rights Commission which, if constituted, would
even reduce the workload of the High Court in
entertaining writ petitions concerning the subjects
touching Human Rights, The claim of privileges was
made by the State much after passing the order for
production of the documents so that we could not
peruse them through the affidavit which is not in
terms of the decisions of the Supreme Court in State
of Punjab v. Sodhi Sukhdeo Singh, AIR 1961 SC 493, and
Amar Chand Butail, AIR 1964 SC 1658. It does not
involve any policy decision but the matter being of
considerable public importance touching the
constitutional safeguards provided to its citizens as
well as non-citizens both, it would be in the interest
of justice to overrule the privilege and peruse the
records so as to find out as to whether the stand
taken by respondent Nos. 1 and 2 are borne out of the
records and are correct or not. The explanation given
in the counter are merely eye-wash and highly
capricious.
18. Thereafter Sri Vatindra Singh, learned Additional
Advocate General was heard. The learned Additional
Advocate General, on the other hand, contended as
follows : The reasons advanced for non-constitution of
State Human Rights Commission are valid ; though the
State has no objection to the perusal of the records,
which were produced but nevertheless privilege is
being claimed having regard to the sensitivity, etc.
It is a question of policy which is neither arbitrary
nor unreasonable, hence it cannot be quashed by
placing reliance on K. Kakkanath v. State, AIR 1997 SC
128 ; Indian Railways v. D.R.T.S.A.. 1993 Supp (4) SCC
474 and State of Punjab v. R. L. Bagga, 1998 (4) SCC
117. The High Court cannot issue a mandamus for
constitution of State Human Rights Commission which is
a policy matter of the Government. Reliance was placed
on A. K. Roy u. Union of India, AIR 1982 SC 710 ;
Aeltemesh Rein v. Union of India, 1988 (4) SCC 54 :
AIR 1988 SC 1768 ; Bar Council of U. P. a. Union of
India, 1997 (3) UPLBEC 1551 ; Misbah Alam Sheikh v.
State of Maharashtra, 1997 (4) SCC 528 and Tata
Cellular v. Union, 1994 (6) SCC 651. No reliance can
be placed on the newspaper reports which are
inadmissible. No contempt was committed by the Chief
Minister Sri Kalyan Singh or his Cabinet colleagues
and the contempt petition being thoroughly
misconceived is fit to be dismissed summarily.
19. By 12.1.1999 Mr. Jain concluded his replies who
also pressed the petition filed for initiation of
proceedings in contempt against the Cabinet Including
the Chief Minister of the State, He also addressed us
in regard to the petition dated 12.1.1999 filed for
impleadment of Sri Kalyan Singh as one of the
respondents 'for the facts and reasons disclosed in
the accompanying affidavit' but without serving a copy
on Sri H. R. Misra, learned standing counsel for the
State and the Chief Minister. In the affidavit
accompanying the application seeking impleadment,
reference was made to several killings in the State
and several Xerox copy of paper clippings were also
produced and referred to.
20. The judgment was reserved by us on 12.1.1999.
Thereafter we tried our level best to locate the
reference of the case said to have been filed before
the Lucknow Bench but could not succeed partly due to
the reason that Sri S. K. Agrawal, learned counsel for
respondent No. 3, was elevated to the Bench in
February. 1999. Thereafter we learnt from newspapers
that some of the aspects touching this case had been
pressed before another Bench by Sri Jain and in
another writ petition before the Lucknow Bench. Before
we could deliver the judgment, Sri Jain desired to be
heard further and the case was brought up for further
hearing giving further opportunities to him as well as
learned Advocate General.
20.1. Sri Jain contended, inter alia, that as serious
allegations have been made by the petitioner against
the Chief Minister respondent No. 2 in view of the
decision of the Supreme Court in R. P. Kapoor v.
Sardar Pratap Singh Kairon, AIR 1961 SC 1117, he owed
a duty to file an affidavit stating the correct
position regarding the allegations and not to leave
their refutation to the Secretary of the Departments
who could speak only from the records and thereby the
allegations be accepted by us ; that the Commissions
referred to by the learned Advocate General/Additional
Advocate General are no substitute of State Human
Rights Commission at all, which has to consist of a
former Chief Justice of a High Court, a Member who has
been or is a Judge of a High Court, another Member who
has been or is a District Judge of our State and two
Members to be appointed from amongst persons having
knowledge of, or practical experience in matters
relating to Human Rights and thereby an expert body.
At the time when this Court had passed its order for
production of records, no privilege was claimed ;
nothing has been produced by respondent Nos. 1 and 2
to show that the two requests made earlier by the
Court and the interim mandamus issued even by us have
been 'considered'. The attitude of respondent No. 2
the Chief Minister from his statements that criminals
have no Human Rights, etc. made to the journalists
from time to time, which are on the record, and which
were not denied by filing of any counter by him
personally, is crystal clear that he and/or his
Government does not want to fulfil the legislative
Intention enshrined in. Section 21 of the Act by
constituting State Human Rights Commission. Even
resort to falsehood has been taken in the counter
filed on behalf of respondent Nos. 1 and 2 in stating
that since the decision was taken to constitute State
Human Rights Commission at a time when the popular
Government was not in power but when the State was
under the Presidential Rule inasmuch as after the
decision taken by the Governor Sri Moti Lal Vora, Miss
Mayawati's Government, as a popular Government, had in
fact taken a decision for constitution of State Human
Rights Commission which because of mere obstinity of
Sri Kalyan Singh is not being followed up to its
logical end. The defence taken in regard to financial
crunch is also of no significance at all because the
Chief Minister has formed a Zumbo Cabinet burdening
the State exchequer unnecessarily and the attitude of
the State Government in regard to non-constitution is
apparently callous and condemnable. He is seriously
pressing the petitions filed for Initiating
proceedings in contempt against the then Chief
Minister Sri Kalyan Singh and his Cabinet colleagues
as well as the application seeking impleadment of the
former.
21. The learned Advocate General appearing on behalf
of respondent Nos. 1 and 2 repeated the arguments made
earlier by Sri Yatlndra Singh, the learned Additional
Advocate General, who in the meantime was elevated to
the Bench. He contended that no contempt was committed
by the then Chief Minister and his Cabinet colleagues.
The petition seeking impleadment of the then Chief
Minister is infructuous due to his resignation and
formation of the new Government under the Chief
Ministership of Sri Ram Prakash Gupta which, however,
is of the same view in regard to non-constitution of
S.H.R.C. He informed us that under Section 30 of the
Act almost in every district Human Rights Courts have
been established. In this regard Sri Jain took up a
stand that those Courts are not functional, to which
the learned Advocate General stated that those Courts
will be made functional expeditiously even by
specifying the special public prosecutors as
contemplated under Section 31 of the Act.
22. Our findings :
22.1. The purpose of the act reads thus :
"An Act to provide for the constitution of a National
Human Rights Commission. State Human Rights
Commissions in States and Human Rights Courts for
better protection of Human Rights and for matters
connected therewith or incidental thereto."
From this the intention of the Parliament is crystal
clear that S.H.R.C. Is for better protection of Human
Rights.
22.2. Section 12 of the Act enumerates the functions
of the commission, which reads as follows :
"Functions of the Commission.--The Commission shall
perform all or any of the following functions, namely
:
(a) inquire, suo motu or on a petition presented to it
by a victim or any person on his behalf, into
complaint of:
(i) violation of Human Rights or abetment thereof ; or
(ii) negligence in the prevention of such violation,
by a public servant;
(b) intervene in any proceeding involving any
allegation of violation of human rights pending before
a Court with the approval of such Court ;
(c) visit, under Intimation to the State Government,
any jail or any other institution under the control of
the State Government, where persons are detained or
lodged for purposes of treatment, reformation or
protection to study the living conditions of the
Inmates and make recommendations thereon ;
(d) review the safeguards provided by or under the
Constitution or any law for the time being in force
for the protection of Human Rights and recommend
measures for their effective implementation ;
(e) review the factors. Including acts of terrorism,
that Inhibit the enjoyment of Human Rights and
recommend appropriate remedial measures;
(f) study treaties and other international instruments
on Human Rights and make recommendations for their
effective implementation;
(g) undertake and promote research in the field of
Human Rights ;
(h) spread Human Rights literacy among various
sections of society and promote awareness of the
safeguards available for the protection of these
rights through publications, the media, seminars and
other available means ;
(i) encourage the efforts of non-governmental
organisations and Institutions working in the field of
Human Rights ;
(j) such other functions as it may consider necessary
for the promotion of Human Rights.
22.3. Section 13 of the Act states the powers of the
Commission relating to the enquiries into the
complaints made under the Act and Section 14 confers
powers on it to utilise the services of any officer or
investigating agency of the State with its
concurrence, as the case may be.
22.4. Section 21 of the Act deals with the
constitution of State Human Rights Commission, which
reads thus :
"Constitution of State Human Rights Commissions.--(1)
A State Government may constitute a body to be known
as.....(name of the State) Human Rights Commission to
exercise the powers conferred upon, and to perform the
functions assigned to, a State Commission under this
Chapter.
2. The State Commission shall consist of :
(a) a Chairperson who has been a Chief Justice of a
High Court;
(b) one Member who is, or has been, a Judge of a High
Court :
(c) one Member who is, or has been, a District Judge
in that State, ;
(d) two members to be appointed from amongst persons
having knowledge of, or practical experience in,
matters relating to Human Rights.
(3) There shall be a Secretary who shall be the Chief
Executive Officer of the State Commission and shall
exercise such powers and discharge such functions of
the State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be
at such place as the State Government may, by
notification, specify.
(5) A State Commission may inquire into violation of
human rights only in respect of matters relatable to
any of the entries enumerated in List II and List III
in the Seventh Schedule to the Constitution :
Provided that if any such matter is already being
inquired into by the Commission or any other
Commission duly constituted under any law for the time
being in force. the State Commission shall not inquire
into the said matter :
Provided farther that in relation to the Jammu and
Kashmir Human Rights Commission, this subsection shall
have effect as if that for the words and figures "List
II and List III in the Seventh Schedule to the
Constitution", the words and figures "List III in the
Seventh Schedule to the Constitution as applicable to
the State of Jammu and Kashmir and in respect of
matters in relation to which the Legislature of that
State has power to make laws" had been substituted."
The Supreme Court in Premjit Kaur v. State of Punjab,
JT 1998 (6) SC 338, had held N.H.R.C. to be a unique
expert body in itself which is also a body sui juris
created under the Central Act for examining and
investigating the question and complaints relating to
violation of Human Rights, as also the negligence on
the part of any public servant in preventing such
violation. In our view, the same distinction has to be
conferred on S.H.R.C. also.
22.5. Section 22 of the Act deals with the appointment
of the Chairperson and other Members of the State
Human Rights Commission on the recommendation of a
committee consisting of persons enumerated therein,
which reads thus ;
"Appointment of Chairperson and other Members of the
State Commission.--(1) The Chairperson and other
Members shall be appointed by the Governor by warrant
under his hand and seal:
Provided that every appointment under this sub-section
shall be made after obtaining the recommendations of a
Committee consisting of:
(a) the Chief Minister Chairperson :
(b) Speaker of the
Legislative
Assembly -Member
(c)Minister in-
charge of the
Department of
Home in that
State - Member
(d) Leader of the
Opposition in
the Legislative
Assembly - Member
Provided further that where there is a Legislative
Council in a State, the Chairman of that Council and
the Leader of the Opposition in that Council shall
also be members of the Committee :
Provided also that no sitting Judge of a High Court or
a sitting District Judge shall be appointed except
after consultation with the Chief Justice of the High
Court of the concerned State.
(2) No appointment of a Chairperson or a Member of the
State Commission shall be invalid merely by reason of
any vacancy in the Committee."
22.6. Section 29 of the Act talks of
jurisdiction/power of the S.H.R.C. to deal with
complaints by applying Sections 9, 10 and 12 to 18
with suitable modification.
23. We take up Prayer No. 2 of the petitioner first in
view of the stand taken regarding Section 30 of the
Act.
23.1. In view of the fair stand of the learned
Advocate General noted in Paragraph No. 21 supra, we
dispose of Prayer No. 2 of the petitioner as
follows-Let further steps be taken by the State
Government for specifying for each district a Court of
Sessions to be Human Rights Courts in terms of Section
30 of the Act expeditiously within three months from
today and specify a Special Public Prosecutor or
appoint an Advocate as a Special Public Prosecutor for
the purposes of conducting cases of Human Rights
Courts aforementioned within 8 (Eight) weeks from
today under Section 31 of the Act.
24. Now we take up the submissions made by the learned
counsel in regard to the prayer No. 1 of the
petitioner i.e., for constitution of U. P. State Human
Rights Commission as envisaged under Section 21 of the
Act.
25. We do not want to make our order bulky by
referring to various decisions cited at the Bar by one
or the other learned counsel which were read out
before us.
25.1. According to the learned Additional Advocate,
General Misvah Alam Sheikh, (1997) 4 SCC 528 is a
direct decision where it was held that no mandamus can
be issued in policy matters to constitute a
Commission. A perusal of the Judgment shows, inter
alia, following things : (i) A writ petition filed
challenging the abolition of Minority Commission set
up by the State Government was dismissed by the Bombay
High Court, (ii) On appeal a notice was Issued by the
Supreme Court why the National Commission should not
take up the issue of protecting the Interest of the
minorities in the State of Maharashtra. (iii) The
Central Government filed an affidavit that it had
undertaken to establish branch of the National
Commission at Mumbai, (iv) Due to want of statutory
compulsion, the State cannot be directed by a mandamus
to constitute Commission or to reconstitute it once
abolished, (v) Under these circumstances no compelling
reason was found warranting interference.
25.2. Here the position is somewhat different. A Chief
Minister because of his position as Leader of the
Party in power is expected to influence his Cabinet to
accept his views- The allegations made by the
petitioner against the Chief Minister (respondent No.
2) have not been denied by him in terms of the
decision of the Supreme Court in Kairon's case, AIR
1961 SC 1117, as rightly argued by Mr. Jain. The legal
position is that facts not disputed are deemed to have
been admitted though it is open for a person to show
that the allegations are so absurd that they should
not be believed. Here there is Section 22 of the Act
under which S.H.R.C. Is required to be constituted by
a State Government though in its discretion whereas
under the National Commission for Minorities Act.
1992, there is no such provision enabling the State
Government to constitute Minority Commission. The
State Government was party to 'Uttarakhand' and
'Maheshwari' and the requests made therein by this
Court could not be lightly taken. It did not go up
before the Supreme Court against the directions Issued
by the High Court. It cannot lightly brush aside or
ignore the mandamus already issued. This decision is,
thus, of no help to respondent Nos. 1 and 2.
26. Human Rights Jurisprudence is of recent growth. We
do not want to make our order more bulky by referring
to various aspects pointed out in several books and
articles published in our country as well as in other
countries highlighting the necessity of protection of
such rights. Relevant in this regard is the very
purpose stated in the very beginning of the Act itself
stated earlier.
27. On the spectrum of Human Rights, which are the
very essence of human life, there are manifold
subjects enumerated in List II/III of the Seventh
Schedule of the Constitution. Some of the general
topics are 'Inhuman Existence', 'Freedom of Religion',
'Right to Privacy and Information', 'Legal Aid',
'Clean and wholesome Environment', 'Custodial
Violence', Torture'. 'Terrorism', 'Gangestorism',
'Prisoner's right/Prison Justice'. 'Capital
Punishment'. 'Atrocities against Women'. 'Child
Abuse', 'Right of Child', 'Atrocities of Scheduled
Caste and Scheduled Tribes', "Right of Workers',
'Right of Minorities', 'Right of Juveniles'. The
S.H.R.C. is vested with the power to enquire into
violation of Human Rights in respect of matters
relatable to any of the entries enumerated in List II
and List III in the Seventh Schedule of the
Constitution. Can they be dealt with effectively by
the four Commissions created by our State as
strenuously urged by the learned Advocate
General/Additional Advocate General in preference to
S.H.R.C. Our answer is a definite no. The reason is
obvious. Under Section 21 of the Act, S.H.R.C. Is
manned by its Chairperson who has to be an Ex-C.J..
apart from 4 Members out of whom one has to be sitting
or an Ex-High Court Judge, the other has to be a
sitting or an Ex-District Judge and the remaining two
having knowledge of, or practical experience in
matters relating to human, rights, which as held by
the Supreme Court, is an expert body. The 4
Commissions and the Lokayukt can by no stretch of
Imagination be equated with S.H.R.C. Thus, it cannot
be said that the existence of the 4 Commissions
aforementioned and the Lokayukt obviated the need of
S.H.R.C.
28. True it is that Article 166 (3) of the
Constitution forbids an enquiry in regard to the
advice tendered by the Cabinet to the Government. We
were/are not interested in regard to that advice. No
one suggested either. Thus, such is not a case here at
all. The law permits us overruling of privilege
claimed and perusal of Government records, barring
advice part, in a given case in public interest. See
State of Punjab v. Sodhi Sukhdeo Singh, AIR 1961 SC
493 ; Amar Chand Butail v. Union of India, AIR 1964 SC
1658 and S. P. Gupta v. Union of India. AIR 1982 SC
149. The facts and circumstances including the public
interest involved for constitution of S.H.R.C. compels
us to look to the Government records. We, accordingly,
reject the petition claiming privilege and perused the
two records. After perusal, we find that unfortunately
the records have not been produced in their entirety
inasmuch as we do not find on the record as to how the
matter was 'considered' by the Cabinet and what had
happened allegedly on 22.10.1998 in the Cabinet
meeting earlier or thereafter so as to have a judicial
review of the decision of the Government.
28.1. Be that as it may, the material constituting the
records of the Government discloses, inter alia, the
following facts :
(i) Pursuant to the orders passed by the High Court in
C.M.W.P. No. 32984 of 1994, Uttarakhand Sangharsh
Samiti, Mussoorie v. State of U. P., State Human
Rights Commission was constituted.
(ii) A committee was also constituted by the State
Government under Section 22 of the Act for the purpose
of appointment of Chairperson and 4 Members of the
Commission as required under Section 21 of the Act by
a popular Government of which Miss Mayawati was the
Chief Minister on 10.5.1997. Even letters were Issued
to the Members of such Committee.
(iii) The then Chief Minister Miss Mayawati vide her
order dated 12.6.1997 directed production of records
along with the list of suitable persons . for
appointment of the Chairperson and the Members of the
S.H.R.C.
(iv) Even the then Home Minister of the Government of
India Sri Indrajit Gupta had written letter dated
15.1.1998 to the Chief Minister Sri Kalyan Singh for
constitution of the State Commission.
(v) in regard to this writ petition, it was noted that
keeping in view the financial reasons, etc. of the
State, where there-are already Schedule Caste/Schedule
Tribes Commission, Backward Commission and Minority
Commission, constitution of State Human Rights
Commission will not be of special advantage.
(vi) The topic for discussion was Included in the
agenda of the Cabinet Meeting to be held on
22.10.1998. but In the absence of any material, it is
not known whether it was in fact discussed or not.
29. Apparently the 2nd request made by the Court in
'H. K. Maheshwari', to which the State Government was
a party, for constitution of State Human Rights
Commission has not at all been considered as it
appears from the records as produced. How and in what
circumstances, the Court had proceeded to make
repeated requests stands fully discussed in the
judgments in 'Uttarakhand' and 'H. K. Maheshwari'
which need not be repeated by us. We gave opportunity
to the State to consider the matter. The word
'consider' has been explained by the Supreme Court in
a number of decisions. One of such decisions is Ram
Chander v. Union of India, AIR 1986 SC 1173, in which
it was held to mean an objective consideration after
due application of mind which implies giving of
reasons for its decision.
30. Following the Ist mandamus issued by this Court in
'Uttarakhand', a Notification was made under Section
21 of the Act during the President's Rule. which was
succeeded by Miss Mayawati's Government supported by
the B.J.P. Miss Mayawati's Government was thus a
popular Government which had even proceeded to take
steps in terms of Section 22 of the Act. Thus it as
wrong on the part of respondent Nos. 1 and 2 to take
up a stand in the Counter and during submission that
since the decision was taken during the Presidential
Rule and thus after the popular Government came in
power, it rightly proceeded to consider the
desirabiiity of constitution of State Human Rights
Commission and came to a conclusion that it will not
be beneficial to do so. It is not even for a moment
suggested that it was not open for Sri Kalyan Singh's
Government to reconsider the decision taken by his
predecessor Miss Mayawati's Government which had
proceeded to constitute State Human Rights Commission
under Section 21 (1) of the Act and a committee under
Section 22 (2) of the Act.
31. In Union of India v. S. P. Anand, (1998) 6 SCC
466, the Supreme Court held that a question regarding
justiciability can arise only in respect of an action
that has been taken under the Constitution or a taw.
In Supreme Court Advocate on Record v. Union of India,
1993 (4) SCC 441, it was held by the Supreme Court
that a direction can be issued to fulfil the State
obligation of providing speedy justice. Even in
Altemesh Rein relied upon by Sri Singh, the Supreme
Court went to the extent of holding that every
discretionary power vested in executive should be
exercised in a just, reasonable and fair way and that
Court cannot allow the Government to leave the matter
to lie without applying its mind to the question. Tata
Cellular, strongly relied upon by the learned
Additional Advocate General, also laid down to the
effect that the Government is the guardian of the
finances of the State and is expected to protect its
financial interest, yet the Courts concern regarding
its power of judicial review should be whether it
committed an error of law and abused its powers. Thus,
we hold that the decision of the State Government
under Section 22 of the Act not to constitute S.H.R.C.
Is justiciable.
32. As laid down by the Supreme Court in H. C. Suman
v. RENEC Home Budding Society, AIR 1991 SC 2160,
rescinding of an earlier notification made pursuant to
a judicial order cannot be done in an arbitrary
manner. The common judgment dated 18.12.1996 of the
Supreme Court in Writ Petition (Crl.) No. 539 of 1986,
D. K. Basu v. State of West Bengal and Writ Petition
(Crl.) No. 592 of 1987, Ashok K. John v. State of U.
P. arising out of our own State in AIR 1997 SC 610,
belies the tall claim made by respondent Nos. 1 and 2
in their counter in regard to the following of the
provisions of Code of Criminal Procedure, etc. We
accept the entire arguments of Sri S. K. Agrawal in
this regard and hold that rescinding and/or nullifying
the earlier Notification under Section 21 (1) of the
Act was in any event not fair and/or proper. It was
well known to the Government that the only question
till then was as to whether the Government should
proceed to obtain the recommendations of the committee
already constituted under Section 22 (1) of the Act
and proceed to make the already constituted U. P.
State Human Rights Commission functional which was not
made known to us. The State cannot act as an ordinary
litigant and in the words of the present Hon'ble
C.J.I., the action of the State, however, must be
right, just and fair vide his speech made on September
27, 1999 at Vigyan Bhawan printed in 1999 (3) SCC 10.
This Court will be falling in its duty in not
correcting the acts/omission/commission of the State
Government if it refuses to act as per the
constitutional mandate and/or the other Acts/laws.
Even conceding that the State Government possessed
powers to nullify the earlier Notification, we in the
peculiar facts and circumstances are of the view that
it was done arbitrarily. Beyond this we do not want to
say in this regard. We are of the view that the State
Government should have taken the repeated requests of
this Court seriously and the views expressed by the
Chairperson of N.H.R.C. not lightly and refused to
constitute the State Human Rights Commission, an
Expert Body, the avowed object for which it was
required to be statutorily constituted. We find in
this context that the State is blowing hot and cold in
the same breath inasmuch as on the one hand it had
proceeded to specify Human Rights Courts almost in
every district by now under Section 30 of the Act but
on the other hand refuses to constitute State Human
Rights Commission for the State under Section 20 of
the Act. We also note that much was canvassed about
the word 'may' used in Section 21 (1) of the Act by
the learned counsel but having regard to the peculiar
facts and circumstances, we are of the view that it
cannot refuse to exercise its discretion arbitrarily
and discriminatorily. We are anguished to make such
remarks but we are left with no option. We find an
apparent fallacy in the main defence that there being
several Commissions. Lokayukt and as the departments
in Home/Police are looking into Human Rights
violations, there is no" necessity to have S.H.R.C.
The other ground namely financial crunch also does not
appeal to us. Both defences are thus rejected. Its
decision is not only arbitrary but discriminatory
which is writ large.
33. The present State Government has taken a stand
before us that it is also not in favour of
constituting S.H.R.C. It was thus rightly contended by
Mr. Jain that thus no useful purpose will be served
for directing it to consider this matter and this
Court cannot remain a silent spectator ; and it is
required to create new tools and avenues to achieve
the avowed objects regarding Human Rights. In fact in
Neelahati Behra v. State of Orissa, AIR 1993 SC I960,
the Supreme Court has held that as a protector of
Human Rights, it is the constitutional object of the
Supreme Court and the High Court to force new tool and
invent new remedies to grant relief of enforcement of
Fundamental Rights. The judgment of the Supreme Court
in Common Cause v. Union of India, 1992 (1) SCC 707,
cannot be said to be irrelevant where directions were
issued for establishing Consumer Forums under the
Consumer Protection Act. The 9 Judges judgment of the
Supreme Court in the Judges case AIR 1994 SC 268, that
a writ could be issued for fixation of Judges strength
in the High Court and its justiciability is also
relevant. The decisions relied upon by the learned
Additional Advocate General on the other hand are
distinguishable.
34. We, accordingly, exercising our constitutional
powers enshrined under Article 226 of the Constitution
of India quash the subsequent Notification nullifying
the first Notification as contained in Annexure-1 to
the affidavit of the General Secretary (Home) and
direct the State Government to take expeditious steps
within three months from today for obtaining the
recommendations of the statutory Committee constituted
under Section 22 (1) of the Act and to proceed to make
the appointments in terms of Section 21 (2) and (3) of
the Act within three month from today.
35. The word 'contempt' stands defined under the
Contempt of Courts Act. Having regard to the peculiar
facts and circumstances, we are of the view that no
contempt at all was committed by the then Chief
Minister Sri Kalyan Singh who has also resigned, and
his Cabinet colleagues, who have also not been
impleaded and that no useful purpose will be served by
his impleadment more so when this case has been heard
and re-heard to its full extent. Accordingly, the
petitions, seeking initiation of proceedings in
contempt under Article 215 of the Constitution of
India against the then Chief Minister Sri Kalyan Singh
and his Cabinet colleagues and impleadment of Sri
Kalyan Singh, both are dismissed.
36. This writ petition is disposed of accordingly but
without cost.
37. Let the records produced by the State Government
be returned forthwith to the learned Advocate General
and/or the learned standing counsel Sri H. R. Mishra.
38. The office is directed to hand over a X-rox or
Computerised copy of this order latest by tomorrow
dated January 13, 2000 to the learned Advocate General
and/or Sri H, R. Mishra, the learned standing counsel
of the State for its intimation to and follow up
action.
39. The office is also directed to despatch a similar
copy to respondent No. 3 by post within one week, as
its learned counsel Sri S. K. Agarwal with his
elevation to the Bench has ceased to be its counsel.
