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2018 DIGILAW 8 (GAU)

Th. Suresh Singh v. State of Manipur

2018-01-04

KH.NOBIN SINGH, N.KOTISWAR SINGH

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JUDGMENT AND ORDER : N. Kotiswar Singh, J. Heard Dr. Th. Suresh Singh, the petitioner in person, Ld. Advocate General for the State as well as Sri A. Romenkumar Singh, Ld. Amicus Curiae. 2. The present PIL has been filed seeking for a direction to the State Respondents to fill up the vacancies of the members and other supporting staff of the Manipur Human Rights Commission within a specified time frame and also to depute an officer not below the rank of a Secretary to the Government of Manipur as provided under sub-section (1)(a) of Section 27 of the Protection of Human Rights Act, 1993 and also to depute a police officer not below the rank of an Inspector General of Police as provided under Section 27(1)(b) of the Act. 3. The importance of establishing the State Human Rights Commission had been stressed time and again by the Hon'ble Supreme Court through various judicial decisions. We may only refer to a recent judicial pronouncement in D.K. Basu v. State of W.B., (2015) 8 SCC 744 in which the Hon'ble Supreme Court elaborately dealt with the history, establishment, functioning and scope of the State Human Rights Commissions. We would therefore, prefer to speak in the words of the Hon'ble Supreme Court as far as these are relevant and appropriate. 4. After tracing the history on the enactment of the Protection of Human Rights Act, 1993, the Hon'ble Supreme Court made it abundantly clear that setting up of a State Human Rights Commission is a mandatory requirement and is not dependent upon the discretion of the State Government. This is what the Hon'ble Supreme Court held in D.K. Basu in the following words: "10. .............. It is true that a plain reading of the provisions may give the impression that the setting up of a State Human Rights Commission rests in the discretion of the State Government. But a closer and more careful analysis of the provisions contained in the Act dispel that impression. 11. ................"A plain reading of the above would show that Parliament has used the word "may" in sub-section (1) of Section 21 while providing for the setting up of a State Human Rights Commission. In contrast Parliament has used the word "shall" in Section 3(1) while providing for constitution of a National Commission. 11. ................"A plain reading of the above would show that Parliament has used the word "may" in sub-section (1) of Section 21 while providing for the setting up of a State Human Rights Commission. In contrast Parliament has used the word "shall" in Section 3(1) 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 the word "may" is not by itself determinative of the true nature of the power or the obligation conferred or created under a provision. The legal position on the subject is fairly well settled by a long line of decisions of this Court. The stated position is that the use of the 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." 5. The Hon'ble Supreme Court also examined the scheme of the legislation to come to the aforesaid conclusion in the following words, "17.1. That the Act is aimed at providing an efficacious and transparent mechanism for prevention of violation of human rights both at national level as also at the State level. 17.2. That the National Human Rights Commission is vested with the powers and functions set out in Chapter III comprising Sections 12 to 16 of the Protection of Human Rights Act, 1993. 17.2. That the National Human Rights Commission is vested with the powers and functions set out in Chapter III comprising Sections 12 to 16 of the Protection of Human Rights Act, 1993. While in relation to State Human Rights Commissions similar provisions of Sections 9, 10, 11, 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 the powers exercisable by the State Commissions under the said provisions are parimateria with the powers exercisable by the National Human Rights Commission. 17.3. 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 v. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 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 power simpliciter." 6. The Hon'ble Supreme Court, then expressed that setting up the State Human Rights Commission is a solemn duty, "20. The upshot of the above discussion that the power of the State Governments under Section 21 to set up the State Human Rights Commissions 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.........................................." 7. The Hon'ble Supreme Court then referred to the reports of the National Human Rights Commission portraying a dismal picture of the functioning of the State Human Rights Commission in various States including the State of Manipur. In many States, there were no Chairpersons, members appointed or remained vacant and in some States, the State Commissions have not been set up at all. Specifically referring to the State of Manipur, it was observed that the Manipur Human Rights Commission was not functioning because of lack of appointment of Chairperson and members as noted in para 27 of D.K. Basu as follows: "27. Specifically referring to the State of Manipur, it was observed that the Manipur Human Rights Commission was not functioning because of lack of appointment of Chairperson and members as noted in para 27 of D.K. Basu as follows: "27. 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 the States have set up SHRCs, 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 defeating the very purpose underlying the Act and calling for a direction from this Court to the States concerned to fill up the existing vacancies immediately and also to ensure that no vacancy in SHRC whether against the post of Chairperson or Members remains unfilled for more than three months. 8. The Hon'ble Supreme Court, thereafter, expressed great distress at the non-functioning of the State Human Rights Commissions because of non-appointment of the Chairpersons and members and directed the States to initiate steps for filling the vacancies within three months. 28. There is, in our opinion, considerable merit in the submission made by the Amicus that the very purpose of setting up of the State Human Rights Commission gets defeated if vacancies that occur from time to time are not promptly filled up and the Commission kept functional at all times. There is hardly any explanation much less a cogent one for the failure of the State to take immediate steps for filling up of the vacancies wherever they have occurred. There is hardly any explanation much less a cogent one for the failure of the State to take immediate steps for filling up of the vacancies wherever they have occurred. The inaction or bureaucratic indifference or even the lack of political will cannot frustrate the laudable object underlying the parliamentary legislation. ........................ ... ... ... ... ... ... ... ... ... ... ... ... ..................... .................. 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 Commissions set up by them are not some kind of idle formality or dispensable ritual. The Commissions are meant to be watchdogs 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 State Governments concerned 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 allotted. We also recommend to the State Governments 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." (emphasis added) 9. We would like to remind the State Government through this PIL of all the directions issued by the Hon'ble Supreme Court in DK Basu which are binding and will also cover the relief claimed in this PIL, which we reiterate to be followed as far as the State of Manipur is concerned, as follows; "38.1. The States of Delhi, Himachal Pradesh, Mizoram, Arunachal Pradesh, Meghalaya, Tripura and Nagaland shall within a period of six months from today set up the State Human Rights Commissions for their respective territories with or without resort to the provisions of Section 21(6) of the Protection of Human Rights Act, 1993. 38.2. 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. 38.3. Vacancies occurring against the post of Chairperson or the Members of SHRC in future shall be filled up as expeditiously as possible but not later than three months from the date such vacancy occurs. 38.4. The State Governments shall take appropriate action in terms of Section 30 of the Protection of Human Rights Act, 1993, in regard to setting up/specifying the Human Rights Courts. 38.5. The 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. 38.6. The State Governments shall also consider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violations reported in such stations. 38.7. The State Governments shall consider appointment of nonofficial 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. 38.8. 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. 38.9. 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 years." 10. 38.9. 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 years." 10. This Court in this PIL also had granted sufficient time to the State Government on earlier occasions for appointment of Chairperson and members of the State Commissions. As regards Chairperson, it has been submitted on behalf of the State Government that because of non availability of retired Chief Justice, the State Government could not appointment the Chairperson. We are of the view of that it may not be a valid reason anymore, after the direction of the Hon'ble Supreme Court referred to above, and more so when other States are able to appoint Chairpersons of their respective State Commissions. 11. It may be relevant to mention that similar issues were also considered by the Hon'ble Supreme Court for the State of Tamil Nadu, Rajasthan etc. but the Hon'ble Supreme Court directed for filling the vacancies at the earliest. In K. Saravanan Karuppasamy v. State of T.N., (2014) 10 SCC 406 , the Hon'ble Supreme Court held that: "22. In the status report, it is stated that office of Chairperson, Tamil Nadu State Human Rights Commission has been lying vacant since 27-8-2011 due to non-availability of suitable candidates. It is stated that in response to the request of the State Government, the High Court of Madras has sent the list of retired Chief Justices who were the former Judges of the Madras High Court along with their date of birth and their present addresses. According to the State, in the list sent by the Registrar General, High Court of Madras most of the candidates are either already appointed to different Appellate Tribunals or equivalent post outside Tamil Nadu or have attained the age limit of 70 years or not having any familiarity with the language and culture of Tamil Nadu and it was almost impossible to find a suitable candidate for the post of Chairperson, SHRC, Tamil Nadu. It is stated that in terms of Section 25(1) of the Protection of Human Rights Act, 1993, order dated 4-12-2013 was issued to Ms. It is stated that in terms of Section 25(1) of the Protection of Human Rights Act, 1993, order dated 4-12-2013 was issued to Ms. Jayanthi, IAS (Retd.), Member to act as the Chairperson in the State Human Rights Commission, Tamil Nadu until the appointment of a new Chairperson to the Commission. It is further stated that in this regard the Government of Tamil Nadu has proposed to the Government of India that a suitable amendment to Section 21(2)(a) of the Protection of Human Rights Act, 1993 (for short "the Act") could be made to make eligible retired Judges of the High Court with a minimum experience of seven years as a Judge of the High Court for the post of Chairperson, SHRC, Tamil Nadu and such proposal is under consideration of the Government of India. The status report filed by the State refers to various letter correspondence by the State with the Union of India in this regard. 23. We do not wish to go into the niceties of the proposal made by the State of Tamil Nadu requesting for suitable amendment to Section 21(2)(a) of the Act. We confine our focus only with regard to the vacancy of office of Chairperson, SHRC remaining vacant for quite some time. 24. The Protection of Human Rights Act, 1993 has been enacted to provide for better protection of human rights by constituting a National Human Rights Commission and also State Human Rights Commissions and Human Rights Courts. Section 2(1)(d) of the Act defines "human rights" as the rights relating to life, liberty, equality, dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India. The above rights are traceable to Part III of the Indian Constitution guaranteeing the fundamental rights and particularly Articles 14, 19, 20, 21 and 22. Chapter V of the Act consisting of Sections 21 to 29 deals with the constitution of State Human Rights Commission and its functions thereto. The State Commission consists of a Chairperson who has been a Chief Justice of a High Court and four Members. 25. Chapter V of the Act consisting of Sections 21 to 29 deals with the constitution of State Human Rights Commission and its functions thereto. The State Commission consists of a Chairperson who has been a Chief Justice of a High Court and four Members. 25. The Act has put in place various remedial measures for prevention of any human rights violations and confers power upon NHRC/SHRC to inquire suomotu or on a petition not only of violations of human rights or abetment thereof; or even negligence exhibited by a public servant in preventing such violations. The statute has conferred wide range of powers upon NHRC/SHRC. The Commission is therefore required to be constituted with persons who have held very high constitutional offices earlier so that all aspects of good and adjudicatory procedures would be familiar to them. Having regard to the benevolent objects of the Act and the effective mechanism for redressal of grievances of the citizens against human rights violations, the office of Chairperson of SHRC cannot be allowed to remain vacant for a long time. The State of Tamil Nadu has always shown zero tolerance towards human rights violations and has always sent clear message of its commitment towards protection of human rights. We see no reason as to why the post of Chairperson, SHRC which is to be headed by a person who has been the Chief Justice of a High Court should remain vacant for more than three years. In our view, pending the State Government's request for amendment to Section 21(2)(a) of the Act which process will take long time, it will be in order if the State of Tamil Nadu takes steps to fill up the vacancy of the post of Chairperson, SHRC, Tamil Nadu in terms of Section 21(2)(a) by constituting a Search Committee at an early date. 12. In Dalit Manavadhikar Kendra Samiti v. State of Rajasthan, (2015) 17 SCC 214, the Hon'ble Supreme Court expressed great dismay at the non-appointment of Chairperson and other staff in the State of Rajasthan which were directed to be filled up at the earliest. "2. We are distressed to note that the Rajasthan State Human Rights Commission has been without the services of the Chairperson since 16-7-2010 i.e. for the last more than five years. This is totally unacceptable and in a sense subverts the Protection of Human Rights Act, 1993 (for short "the Act"). "2. We are distressed to note that the Rajasthan State Human Rights Commission has been without the services of the Chairperson since 16-7-2010 i.e. for the last more than five years. This is totally unacceptable and in a sense subverts the Protection of Human Rights Act, 1993 (for short "the Act"). We also find that Human Rights Courts that are required to be set up under Section 30 of the Act have apparently not been set up. In any event, there is no mention of the setting up of these courts in the affidavit filed by the State of Rajasthan. 3. The learned counsel for the State of Rajasthan says that he will check up the position and let us know the progress made and the steps taken in the appointment of the Chairperson of the Rajasthan State Human Rights Commission and for setting up of Human Rights Courts. 4. The affidavit of the Rajasthan State Human Rights Commission indicates that there is a tremendous staff shortage and in spite of several letters having been sent to the State Government, no steps have been taken to fill up the vacancies and the draft recruitment rules sent to the State Government have also not been finalised by the State Government. 5. This is an extremely sad state of affairs insofar as human rights in Rajasthan are concerned. 6. The learned counsel for the State of Rajasthan says that he will get positive instructions indicating a time-frame within which all the deficiencies that have been pointed out not only in the affidavit filed by the State of Rajasthan but also in the affidavit by the Rajasthan State Human Rights Commission will be remedied and will file an affidavit within four weeks. We make it clear that time to file an affidavit will not be extended except on payment of heavy costs. List the matter on 6-11-2015." 13. Thereafter, when the matter was taken up on 6.11.2015, the Hon'ble Supreme Court passed the following order in respect of Rajasthan in the aforesaid case: "7. In this writ petition under Article 32 of the Constitution of India, the petitioner, Dalit Manavadhikar Kendra Samiti has prayed for several reliefs. List the matter on 6-11-2015." 13. Thereafter, when the matter was taken up on 6.11.2015, the Hon'ble Supreme Court passed the following order in respect of Rajasthan in the aforesaid case: "7. In this writ petition under Article 32 of the Constitution of India, the petitioner, Dalit Manavadhikar Kendra Samiti has prayed for several reliefs. The principal relief is for a writ of mandamus directing the State of Rajasthan to appoint a Secretary to the State Human Rights Commission (for short "the Commission") in accordance with Section 21(3) of the Protection of Human Rights Act, 1993 (for short "the Act") as well as to fill up all vacant sanctioned posts in the Commission in terms of Para 11 of the writ petition. In Para 11, it has been pointed out that a large number of posts of staff in various categories, totalling about 67, are lying vacant. 8. By an order dated 9-12-2013, notice was issued to the respondents limited to this prayer only. During the pendency of these proceedings, we were informed that apart from the fact that there is no or inadequate staff with the Commission, the Commission was without the services of the Chairman since 16-7-2010. We were also given to understand that the Human Rights Courts have not been set up as required under Section 13 of the Act. We had recorded this in our order dated 18-9-20152 and had directed the State of Rajasthan to let us know the progress by way of an affidavit. 9. Today, the learned Additional Advocate General appearing for the State of Rajasthan says that for some reason the affidavit could not be filed, but he has handed over to us a Warrant of Appointment dated 20-10-2015 issued by Shri Kalyan Singh, Governor of Rajasthan appointing Shri Prakash Tatia, retired Chief Justice of the Jharkhand High Court as the Chairperson of the Commission for a term of five years from the date on which he enters office or until he attains the age of seventy years, whichever is earlier. The learned Additional Advocate General says that the retired Chief Justice Shri Prakash Tatia has accepted the appointment and to the best of his knowledge he has also entered upon his office. The Warrant of Appointment is taken on record. 10. The learned Additional Advocate General says that the retired Chief Justice Shri Prakash Tatia has accepted the appointment and to the best of his knowledge he has also entered upon his office. The Warrant of Appointment is taken on record. 10. The learned Additional Advocate General has also handed over a Notification dated 5-4-2013 (in Hindi) to the effect that Human Rights Courts have been set up in every district of the State and the District and Session Judges have been designated as the District and Session Judges for their respective boundaries as Human Rights Courts. This Notification dated 5-4-2013 (in Hindi) is also taken on record. 11. With regard to the staff shortage, the learned Additional Advocate General has informed us that today there are 18 sanctioned posts that are lying vacant. He says that the recruitment rules proposed by the Commission are under examination and will be discussed with the Chairperson of the Commission so that all the posts can be filled up and the Commission can start functioning effectively. 12. In view of the above, we request the Chairperson of the Commission to ensure that the State Government complies with the submissions that have been made before us and vacant posts are filled up at the earliest." 14. We do not see any reason why the aforesaid directions of the Hon'ble Supreme Court should not be equally applicable to the State of Manipur. 15. Accordingly, keeping into consideration the importance of State Human Commission, and in the light of the various directions of the Hon'ble Supreme Court, we reiterate the aforesaid directions of the Hon'ble Supreme Court in this PIL not only for appointment of the Chairperson and other members of the Commission but also other staff required under Section 27 of the Act. 16. While doing so, we would like to deal with a submission advanced by the Ld. Advocate General on behalf of the State Government that because of non-appointment of Chairperson of the Manipur State Human Rights Commission, other members cannot be appointed as without a Chairperson, the State Human Rights Commission cannot be constituted, by referring to Section 21 of the Act which provides that the State Commission shall consist of a Chairperson and other members as provided thereunder. Hence, according to the Learned Advocate General, if the Chairperson is not appointed, the State Commission cannot be said to be constituted and till such constitution, no other member can be appointed. 17. We are unable to agree to such a submission advanced, as it is not supported by any of the provisions of the Act. On the contrary, the Act itself contemplates certain situations where there may not be a Chairperson for one reason or other, in which event, any other member can be authorised to function as the Chairperson until the appointment of the new Chairperson as provided under Section 25 of the Act. Section 25 of the Act provides that, "25. Member to act as Chairperson or to discharge his functions in certain circumstances.-(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy. (2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, such one of the Members as the Governor may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties." 18. What Section 25 of the Act provides is that in the event of occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy. It is not only in the case of death, resignation, but for any other reason, as such a situation is covered by the word "otherwise" in the Section. The meaning of the word "otherwise" is wide enough to cover any other situation other than death or resignation. It can also cover such situation when a Chairperson demits office on reaching the age of superannuation or the term because of which a vacancy occurs in the office of the Chairperson. We accordingly, hold that in view of the above provision under Section 25 of the Act, the State need not wait for the appointment of a Chairperson for the other members to be appointed. We accordingly, hold that in view of the above provision under Section 25 of the Act, the State need not wait for the appointment of a Chairperson for the other members to be appointed. The appointment of other members are not dependent or contingent upon appointment of the Chairperson and hence other members can be appointed independent of the existence or absence or appointment of the Chairperson. 19. At the time of hearing of this PIL, the petitioner has brought to our attention a Notification dated 01.07.2017 under No. 1/2/98-Law(HRC)Pt-II, issued by the Law Department, Government of Manipur for appointment of two members of the Manipur Human Rights Commission inviting applications from interested persons to be submitted on or before 4:30 p.m. of 14th July, 2017. Ld. Counsel for the petitioner has submitted that such a notification granting only 2 (two) weeks to apply is too short considering the importance of the posts and the necessity to attract the best talent from the public. 20. We agree with the aforesaid submission. We also feel that the said notification should be given wider publicity for a longer period of time of at least one month. Accordingly, we direct that if the two members of the Manipur Human Rights Commission have not been already appointed in the meantime, the Notification be notified again by giving a notice of minimum period of one month for submission of applications. It goes without saying that those who have already applied under the earlier Notification dated 01.07.2017 may not apply again. The State government may proceed accordingly. 21. In the result, for the reasons discussed above, we allow this PIL reiterating the directions already issued by the Hon'ble Supreme Court in D.K. Basu as reproduced above. The Chairperson and the members of the Manipur Human Rights Commission are directed to be appointed within a period of three months from today as also directed by the Hon'ble Supreme Court. Other directions issued by the Hon'ble Supreme Court in D.K. Basu as reproduced above are also to be followed. The other officers and staff as provided under Section 27 of the Act commensurate with the responsibilities and status are also directed to be appointed in a time bound manner as the State Commission in absence of adequate officers and staff to assist will not be in a position to function effectively and efficiently.