TMI Blog2015 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... State Governments shall take steps to install CCTV cameras in all the prisons in their respective States, within a period of one year from today but not later than two years. 6. The State Governments shall also consider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violation reported in such stations. 7. The State Governments shall consider appointment of non-official visitors to prisons and police stations in terms of the relevant provisions of the Act wherever they exist in the Jail Manuals or the relevant Rules and Regulations. 8. The State Governments shall launch in all cases where an enquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the commission of offences disclosed by such enquiry report and/or investigation in accordance with law. 9. The State Governments shall consider deployment of at least two women constables in each police station wherever such deployment is considered necessary having regard to the number of women taken for custodial interrogation or interrogation for other purposes over the past two yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an dignity and whenever human dignity is wounded, civilisation takes a step backwards. The Court relied upon the Report of the Royal Commission on Criminal Procedure and the Third Report of the National Police Commission in India to hold that despite recommendations for banishing torture from investigative system, growing incidence of torture and deaths in police custody come back to haunt. Relying upon the decisions of this Court in Joginder Kumar v. State of U.P. and Ors. (1994) 4 SCC 260; Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. (1993) 2 SCC 746; State of M.P. v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262; and the 113th report of the Law Commission of India recommending insertion of Section 114-B in the Indian Evidence Act, this Court held that while the freedom of an individual must yield to the security of the State, the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take precedence over an individual s right to personal liberty. Having said that the action of the State, observed this Court, must be just and fair. Using any form of torture for extracting any kind of information would neither be right no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. What falls for consideration before us at present are the prayers made in Crl.M.P. No.15492 of 2014 filed by Dr. Abhishek Manu Singhvi, Senior Advocate, who was appointed Amicus Curiae in this case. The Amicus has, in the said application, sought further directions from this Court in terms of Paras 10(A) to 10(O) of the said Crl. M.P. When the application initially came-up for hearing before this Court on 5th August, 2014, we gave a final opportunity to the respondents-States to respond to the prayers made in the same. We, at the same time, requested Dr. Singhvi to identify areas that need attention and make specific recommendations for consideration of this Court based on the responses filed by the States/Union Territories to the application filed by him. Dr. Singhvi has accordingly filed a summary of recommendations, which, according to him, deserve to be examined and accepted while concluding these proceedings which have remained pending in this Court for the past 30 years or so. We, therefore, propose to deal with the recommendations so summarised by the Amicus Curiae, having regard to the responses of the States filed and also the need for giving quietus to the issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion urged on behalf of the defaulting States. We say so for reasons more than one, but, before we advert to the same we wish to point out that Protection of Human Rights Act, 1993 symbolises the culmination of a long drawn struggle and crusade for protection of human rights in this country as much as elsewhere is the world. The United Nations (UN) General Assembly in December, 1948 adopted the Universal Declaration of Human Rights which was a significant step towards formulating and recognizing such rights. It was, then, followed by an International Bill of Rights which was binding on the covenanting parties. Since the Universal Declaration of Human Rights was not legally binding and since United Nations had no machinery for its enforcement, the deficiency was removed by the UN General Assembly by adopting in December, 1965 two covenants for the observance of human rights viz. (i) the Covenant on Civil and Political Rights; and (ii) the Covenant on Economic, Social and Cultural Rights. The first covenant formulated legally enforceable rights of the individual while second required the States to implement them by legislation. These covenants came into force in December, 1976 after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 21 of the Act, which deals with the setting-up of State Human Rights Commission, is in the following terms: 21. Constitution of State Human Rights Commission.- (1) A State Government may constitute a body to be known as the ............................. (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, with effect from such date as the State Government may by notification specify, 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 or District Judge in the State with a minimum of seven years experience as District Judge; (c) one Member to be appointed from among 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line of decisions of this Court. The stated position is that the use of word may does not always mean that the authority upon which the power is vested may or may not exercise that power. Whether or not the word may should be construed as mandatory and equivalent to the word shall would depend upon the object and the purpose of the enactment under which the said power is conferred as also related provisions made in the enactment. The word may has been often read as shall or must when there is something in the nature of the thing to be done which must compel such a reading. In other words, the conferment of the power upon the authority may having regard to the context in which such power has been conferred and the purpose of its conferment as also the circumstances in which it is meant to be exercised carry with such power an obligation which compels its exercise. The locus classicus on the subject is found in Julius v. Bishop of Oxford(1880) 5 AC 214 where Justice Cairns, L.C. observed: The words it shall be lawful are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attach the obligation to the power compel- ling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness. Thus, the question to be determined in such cases always is, whether the power conferred by the use of the word may has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evidence, a particular kind of order must be made. If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provisions which provide the legal context. Even then the facts must establish that the legal conditions are fulfilled: A power is exercised even when the Court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised. Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary. It is not the conferment of a power which the word may indicates that annexes any obligation to its exercise but the legal and factual context of it. 11. So also, this Court in ND Jayal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word shall or may depends on conferment of power. Depending upon the context, may does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes his duty to exercise that power. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. 20. If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word may will not prevent the court from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd transparent mechanism for prevention of violation of human rights both at national level as also at the state level; that the National Human Rights Commission is vested with the powers and functions set out in Chapter-III of comprising Sections 12 to 16 of the Protection of Human Rights Act, 1963. While in relation to State Human Rights Commissions similar provisions of Sections 9, 10, 10, 12, 13, 14, 15 to 18 apply mutatis mutandis subject to certain modifications referred to in clauses (a) to (d) of the said provision. This implies that he powers exercisable by the State Commissions under the said provisions are pari materia with the powers exercisable by the National Human Rights Commission. (iii) that while Section 3 does use the word shall in relation to the constitution of a National Human Rights Commission, the absence of a similar expression in Section and the use of the word may as observed by this Court in Bachahan Devi (supra) case makes little difference as the scheme of the Act and the true intention underlying the legislation is to be determined by the Court depending upon whether the power was coupled with a duty to exercise the same or was conferment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Commission in their respective areas/territories is not a power simpliciter but a power coupled with the duty to exercise such power especially when it is not the case of anyone of the defaulting States that there is no violation of human rights in their territorial limits. The fact that Delhi has itself reported the second largest number of cases involving human rights cases would belie any such claim even if it were made. So also, it is not the case of the North-Eastern States where such Commissions have not been set- up that there are no violations of Human Rights in those States. The fact that most if not all the States are affected by ethnic and other violence and extremist activities calling for curbs affecting the people living in those areas resulting, at times, in the violation of their rights cannot be disputed. Such occurrence of violence and the state of affairs prevailing in most of the States cannot support the contention that no such commissions are required in those States as there are no human rights violations of any kind whatsoever. 16. There is another angle from which the matter may be viewed. It touches the right of the affected citizens to access justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -up their own Commissions. At any rate, the provisions of Section 21(6) clearly provide for two or more State Governments setting up Commissions with a common Chairperson or Member. Such appointments may be possible with the consent of Chairperson or Member concerned but it is nobody s case that any attempt had in that direction been made but the same had failed on account of the persons concerned not agreeing to take up the responsibility vis-a-vis the other State. Even the NHRC had in its Annual Report (1996-1997) suggested that if financial constraint was really one of the reasons for not setting-up of Commission in the North-Eastern Regions, the State Governments could consider setting-up such commissions by resorting to Section 21(6), which permits two States having the same Chairperson or Members thereby considerably reducing the expenses on the establishment of such Commissions. 18. Reference in this connection may be made to the recommendations of the NHRC published in its Annual Report for the year 2004-2005 where the commission observed: 16.1 State Human Rights Commissions have been set up in 151 States viz., the States of Andhra Pradesh, Assam, Chhattisgarh, Hima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly keeping in view the social, cultural and linguistic diversity that comprises our society. Institutionalizing the mechanism of these annual interactions is one way the Commission hopes to keep up the process of dialogue. It is thus, all the more important that all the states expeditiously set up human rights Commissions. (emphasis supplied) 19. A similar recommendation was made in the Annual Report for the year 2009-2010 of NHRC. It said: 10.1 Section 21 of the PHRA, 1993 as amended in 2006, provides for constitution of State Human Rights Commissions (SHRCs) in all the States. The existence and functioning of a Human Rights Commission in the State goes a long way in the better protection and promotion of human rights. It is now an accepted fact that good governance and human rights go hand in hand. The SHRCs have been set-up in 18 States. The names of these States are: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh, Jammu Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal . 10.2 The NHRC is keen that SHRCs are set-up in all the States so that each and ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to set-up State Human Rights Commission in their respective territories. 22. The other recommendation which the Amicus has noted for issue of suitable directions relates to the filling-up of vacancy of Chairperson and Members in several State Human Rights Commissions. The Amicus points out that in the States of Manipur and Himachal Pradesh SHRC is not functional since post of Chairperson and several Members remains unfilled. In the State of Jammu and Kashmir, the post of Chairperson and one Member is vacant. In the State of Jharkhand, the Chairperson is in position but the post of sole Member is vacant. So also, in the State of Karnataka two Members in the Commission are working while the post of Chairperson and one member remains vacant. Even in the State of Tamil Nadu the post of Chairperson remains vacant. The Amicus states that similar is the position in several other States also which means that although States have set up SHRC, the same are dysfunctional on account of non filling-up of the vacancies on account of administrative apathy and lethargy. It was argued by the Amicus that dysfunctional SHRCs are as good as there being no such Commissions at all thereby defea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments that since the dates on which vacancies are scheduled to occur are known well in advance, (save and except where an incumbent dies in office) the process for appointment of the incumbents against such vacancies should be initiated well in time in future so that no post remains vacant in any State Human Rights Commission for a period or unfilled for any period for more than three months from the date the vacancy arises. 24. That brings us to the third recommendation that Amicus has formulated concerning the constitution of Human Rights Court in different districts in terms of Section 30 of The Protection of Human Rights Act, 1993. Section 30 of the Act provides that the State Government shall specify with the concurrence of the Chief Justice of the High Court, for each district a Court of Session to be a Human Rights Court so that the offences arising out of violation of human rights are tried and disposed of speedily. It was submitted that while the State of Sikkim has complied with the said provision, other States are silent in that regard. It was urged that if a small State like Sikkim could comply with the requirement of specifying Sessions Courts to be Human Rights Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the State have already been installed. So also the State of Tamil Nadu plans to equip all police stations with CCTV cameras. State of Haryana has stated that CCTV cameras should be installed in all police stations, especially, at the entrance and in the lockups. Union Territories of Andaman Nicobar and Puducherry has also installed CCTV cameras in most of the police stations. Some other States also appear to be taking steps to do so. Some of the States have, however, remained silent and non-committal on the issue. We do not for the present consider it necessary to issue a direction for installation of CCTV cameras in all police stations. We are of the opinion that the matter cannot be left to be considered by the State Governments concerned, having regard to the fact that several other State Governments have already taken action in that direction which we consider is commendable. All that we need say is that the State Governments may consider taking an appropriate decision in this regard, and appropriate action wherever it is considered feasible to install CCTV cameras in police stations. Some of these police stations may be located in sensitive areas prone to human rights vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards deployment of women constables all that we need say is that the States concerned would consider the desirability of posting women constables in the police stations wherever it is found that over a period of past two years women were detained in connection with any criminal case or investigation. Needless to say that in case women constables are needed in such police stations for interrogation or detention, the State shall provide such infrastructural facilities for such constables as are required. To sum up: 1. The States of Delhi, Himachal Pradesh, Mizoram, Arunachal Pradesh, Meghalaya, Tripura and Nagaland shall within a period of six months from today set up State Human Rights Commissions for their respective territories with or without resort to provisions of Section 21(6) of the Protection of Human Rights Act, 1993. 2. All vacancies, for the post of Chairperson or the Member of SHRC wherever they exist at present shall be filled up by the State Governments concerned within a period of three months from today. 3. Vacancies occurring against the post of Chairperson or the Members of the SHRC in future shall be filled up as expeditiously as possible but not later ..... X X X X Extracts X X X X X X X X Extracts X X X X
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