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TMI Blog2015 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... shi Kakkar, Jatinder Kumar Bhatia, P. V. Yogeswaran, P. V. Dinesh, Shibashish Misra, Ansar Ahmad Chaudhary, T. Harish Kumar, Manish Kumar Saran, Anuvrat Sharma, Balaji Srinivasan, Ajay Pal, Suryanarayana Singh, Sr. AAG Pragati Neekhra, Gunnam Venkateswara Rao, Ruchi Kohli, Sunil Fernandes, K.V. Jagdishvaran, G. Indira, M. Yogesh Kanna, Jayant Patel, Chandra Prakash, Sapam Biswajit Meitei, Z.H. Isaac Haiding, Ashok Kumar Singh, K. Enatoli Sema, Edward Belho, Amit Kumar Singh, A. Subhashini JUDGMENT Crl.M.P. No. 13566 of 2011 in Crl.M.P. No. 16086 of 1997 in Crl.M.P. No. 4201 of 1997, Crl.M.P. No. 15490 of 2014 & 15492 of 2014 in Writ Petition (Crl.) No. 539 of 1986 T. S. Thakur, J. 1. In D.K. Basu etc. v. State of West Bengal etc. (1997) 1 SCC 416 [D.K. Basu (1997) 1 SCC 416] this Court lamented the growing incidence of torture and deaths in police custody. This Court noted that although violation of one or the other of the human rights has been the subject matter of several Conventions and Declarations and although commitments have been made to eliminate the scourge of custodial torture yet gruesome incidents of such torture continue unabated. The court described 'custodial tor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and/or detention: "35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible in appropriate cases by way of redressal upon proof of infringement of fundamental rights of a citizen by the public servants and that the State was vicariously liable for their acts. The Court further held that compensation was payable on the principle of strict liability to which the defence of sovereign immunity was not available and that the citizen must receive compensation from the State as he/she has a right to be indemnified by the government. 3. D.K. Basu (1997) 1 SCC 416 was followed by seven subsequent orders reported in Dilip K. Basu v. State of W.B. and Ors. (1997) 6 SCC 642; Dilip K. Basu v. State of W.B. and Ors. (1998) 9 SCC 437; Dilip Kumar Basu v. State of W.B. and Ors. (1998) 6 SCC 380; Dilip K. Basu and Ors. v. State of W.B. and Ors. (2002) 10 SCC 741; Dilip K. Basu and Ors. v. State of W.B. and Ors. (2003) 11 SCC 723; Dilip K. Basu and Ors. v. State of W.B. and Ors. (2003) 11 SCC 725; and Dilip K. Basu v. State of W.B. and Ors. (2003) 12 SCC 174. All these orders were aimed at enforcing the implementation of the directions issued in D.K. Basu (1997) 1 SCC 416. It is not, in our view, necessary to refer to each one of the said orders for observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Government has not set-up a State Human Rights Commission so far. The application further points out that Mizoram, Meghalaya, Tripura and Nagaland are all disturbed States with problems of insurgency, foreign immigration, tribal warfare and ethnic violence apart from custodial violence and deaths, which according to the Amicus, are rampant in each one of these States making it necessary to have a proper authority to look into such violations and grant redress wherever necessary. 6. Despite an opportunity granted for the purpose, the States that have failed to set-up Human Rights Commissions have not come forward to offer any justification for their omission to do so. All that was argued by some of the counsel appearing for the defaulting States is that the establishment of a Commission is not mandatory in terms of Section 21 of the Protection of Human Rights Act, 1993. It was urged that the use of words 'A State Government may constitute a body to be known as the...............(Name of the State) Human Rights Commission' clearly suggests that the State Government may or may not choose to constitute such a body. In the absence of any mandatory requirement under the Act const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the human rights embodied in the said Covenants are substantially protected by the Constitution and that there is a growing concern about the changing social realities and the emerging trends in the nature of crime and violence. The Statement of Objects and Reasons also refers to the wide ranging discussions that were held at various fora such as the Chief Ministers' Conference on Human Rights, seminars organized in various parts of the country and the meetings with leaders of various political parties, which culminated in the presentation of Protection of Human Rights Bill, 1993 that came to be passed by both the Houses of Parliament and received the assent of the President on 8th January, 1994 taking retrospective effect from 28th September, 1993. The significance of the human rights and the need for their protection and enforcement is thus beyond the pale of any debate. The movement for the protection of such rights is not confined only to India alone. It is a global phenomenon. It is, in this backdrop that the provisions of Section 21 of the Act need to be examined. It is true that a plain reading of the provisions may give the impression that the setting-up of a State Human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if such Chairperson or Member consents to such appointment: Provided that every appointment made under this sub-section shall be made offer obtaining the recommendations of the committee referred to in sub-section (1) of section 22 in respect of the state for which a common chairman or member, or both, the case may be, is to be appointed." 9. A plain reading of the above would show that the Parliament has used the word 'may' in sub-Section (1) while providing for the setting-up of a State Human Rights Commission. In contrast the Parliament has used the word 'shall' in sub-Section (3) while providing for constitution of a National Commission. The argument on behalf of the defaulting States, therefore, was that the use of two different expressions which dealing with the subject of analogous nature is a clear indication that while a National Human Rights Commission is mandatory a State Commission is not. That argument is no doubt attractive, but does not stand close scrutiny. The use of word 'may' is not by itself determinative of the true nature of the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise it for the benefit of those who have that right, when required on their behalf...." 10. A long line of decisions of this Court starting with Sardar Govind Rao and Ors. v. State of Madhya Pradesh AIR 1965 SC 1222 have followed the above line of reasoning and authoritatively held that the use of the word 'may' or 'shall' by themselves do not necessarily suggest that one is directory and the other mandatory, but, the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the same. In The Official Liquidator v. Dharti Dhan Pvt. Ltd. (1977) 2 SCC 166 this Court summed up the legal position thus : "In fact it is quite accurate to say that the word "may" by itself, acquires the meaning' of "must" or "shall" sometimes. This word however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctly summarized as under: "18. It is well settled that the use of word 'may' in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word 'may' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word 'may', the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word 'may' should be interpreted to convey a mandatory force. As a general rule, the word 'may' is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word 'shall', which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed." (emphasis supplied) 12. The above decision also dispels the impression that if the Parliament has used the words "may" and "shall" at the places in the same provision, it means that the intention was to make a distinction in as much as one was intended to be discretionary while the other mandatory. This is obvious from the following passage where this Court declared that even when the two words are used in the same provision the Court's power to discover the true intention of the legislature remains unaffected: "22. .....Obviously where the legislature uses two words may and shall in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive. The power of court to find out whether the provision is directory or mandatory remains unimpaired." 13. When we examine the scheme of the legislation and the provisions of Section 21 (supra) in the light of the above principles, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses (a) to (g). the provision enjoins upon the State Commissions the task of spreading human rights literacy among various sections of the society and promoting awareness about the safeguards available for the protection of those rights through publications in the media, seminars and other available means; and to encourage the efforts of non-governmental organizations and institutions working in the field of human rights; and to perform all such other functions as may be considered necessary for the promotion of human rights. All these functions are critical for the promotion and protection of human rights at the State level. The essence of a statutory Commission will, therefore, have the effect of negating the legislative intent that human rights need to be promoted and protected against violations. The State Governments cannot frustrate the objects underlying the legislation but pleading that the legislative measure notwithstanding they can in their discretion keep the setting-up of the Commissions at bay. Any such contention will be destructive of the scheme of the Act and the promise the law contains for the protection of the rights of the people. 15. The upshot of the above d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that legal and judicial outcomes are just and equitable (See United Nations Development Programme, Access to Justice - Practice Note (2004)]." 17. Human rights violations in the States that are far removed from the NHRC headquarters in Delhi itself makes access to justice for victims from those states an illusion. While theoretically it is possible that those affected by violation of human rights can approach the NHRC by addressing a complaint to the NHRC for redressal, it does not necessarily mean that such access to justice for redressal of human rights violation is convenient for the victims from the states unless the States have set-up their own Commissions that would look into such complaints and grant relief. We need to remember that access to justice so much depends upon the ability of the victim to pursue his or her grievance before the forum competent to grant relief. North-Eastern parts of the country are mostly inhabited by the tribals. Such regions cannot be deprived of the beneficial provisions of the Act simply because the States are small and the setting-up of commissions in those states would mean financial burden for the exchequer. Even otherwise there is no rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining, awareness building and substantive human rights issues. Taking forward the initiative, the second meeting was convened on the 13-05-2005. Apart from the various issues of concern discussed in the meeting, the meeting concluded with the adoption of the following Resolution:- "The National Human Rights Commission and the State Human Rights Commissions present hereby unanimously resolve to urge the State Governments to:- Setup, on priority, State Human Rights Commissions where the same do not exist. b) Where, there are State Human Rights Commissions or, are in the process of being setup, it be ensured that they are structurally and financially independent as envisaged in and, fully confirming to, the principles relating to the status of national institutions (the "Paris Principles') which were endorsed by the UN General Assembly Resolution 48/134 of 20-12- 1993. The National and State Commissions also reiterate and remind the Governments, both, at the Centre and in the States, that the primary obligation towards the protection of human rights is that of the State and that the national human rights institutions are for 'better protection of human rights'. 16.4 The Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Odisha, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal. At present, there is no Chairperson and Members in the Himachal Pradesh State Human Rights Commission except for a Secretary. 15.2 NHRC is keen that SHRCs are set up in every State of the country so that its inhabitants have easy access to better protection of human rights and justice. The Commission once again makes an earnest appeal to all those States which have not yet constituted SHRCs to take action at the earliest in the interest of better protection and promotion of human rights. In addition, the Commission is in constant touch with all the SHRCs and renders technical support to them as and when required by them." (emphasis supplied) 21. It is a matter of regret that despite the National Human Rights Commission itself strongly and repeatedly recommending setting-up of State Commission in the States the same have not been set-up. Keeping in view the totality of the circumstances, therefore, we see no reason why the recommendation made by the Amicus for a direction to the States of Delhi, Arunachal Pradesh, Mizoram, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dysfunctional for any reason whatsoever. The power available to the Government to fill up the vacancies wherever they exist is, as noticed earlier, coupled with the duty to fill up such vacancies. The States ought to realise that the Human Rights Commission set up by them are not some kind of idle formality or dispensable ritual. The Commissions are meant to be watch dogs for the protection of the human rights of the citizens and effective instruments for redressal of grievances and grant of relief wherever necessary. Denial of access to the mechanism conceptualised under the Act by reason of non filling up of the vacancies directly affects the rights of the citizens and becomes non functional. It is in that spirit that we deem it fit and proper to direct that all vacancies against the post of Chairperson and Members of the State Human Rights Commission shall be filled up by the concerned State Governments as expeditiously as possible but, in any case, within a period of three months from the date of this order. We only hope and trust that we shall be spared the unpleasant task of initiating action against the defaulting State in case the needful is not done within the time allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective States and examine the feasibility of specifying Human Rights Court in each district within the contemplation of Section 30 of the Act. Beyond that we do not propose to say anything at this stage. 26. There are, apart from the above, few other recommendations made by the Amicus like installation of CCTV Cameras in all Police Stations and prisons in a phased manner, and appointment of non-official visitors to prisons and police stations for making random and surprise inspections. Initiation of human proceedings Under Section 302/304 IPC in each case where the enquiry establishes culpability in custodial death and framing of uniform definition of custodial death and mandatory deployment of atleast two women constables in each district are also recommended by the Amicus. 27. As regards installation of CCTV cameras in police stations and prisons, with a view to checking human rights abuse, it is heartening to note that all the States have in their affidavits supported the recommendation for installation of CCTV cameras in Police Stations and prisons. In some of the States, steps appear to have already been initiated in that direction. In the State of Bihar, CCTV cameras in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recommendations of the Magistrate of the District in which the prison is situated. He urged that the provisions being salutary ought to be invoked by the Governments concerned and non-official visitors to prisons in police stations nominated including independent persons like journalist. There is, in our opinion, no real harm or danger in appointment of non-official visitors to prisons and police stations provided the visitors who are so appointed do not interfere with the ongoing investigations if any. All that we need say is that the State Governments may take appropriate action in this regard keeping in view the provisions of the Prison Manuals and the Police Acts and the Rules applicable to each State. 30. That leaves us with the question of initiation of criminal proceedings in cases where enquiry establishes culpability in custodial deaths and for deployment of atleast two women constables in each district. We see no reason why appropriate proceedings cannot be initiated in cases where enquiry establishes culpability of those in whose custody a victim dies or suffers any injuries or torture. The law should take its course and those responsible duly and appropriately proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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