Before the National Human Rights Commission

Sadar Patel Bhawan

New Delhi

Case No. 1/97/NHRC

(Arising out of the Order dt. 12th December, 1996
of the Hon'ble Supreme Court of India
in Writ Petition 447/1995 and 497 of 1995)

Order on the Preliminary Issues

1. In two writ petitions filed before the Supreme Court of India in W.P. (Crl.) No. 497/95 Paramjit Kaur Vs. State of Punjab and others; and Writ Petition (Crl.) No. 447/95 Initiative on Punjab Committee for Information and Initiative Vs. State of Punjab, serious allegations were made about large scale cremations resorted to by the Punjab Police or persons allegedly killed in what were alleged as "encounters" In the first of the aforesaid writ petitions, it was alleged that a certain Shri Jasjit Singh Kalra, General Secretary of the Human Rights Wing of the Shiromani Akali Dal was abducted by the Punjab Police. In regard to this the Supreme Court, following the reports of enquiries instituted by it, awarded compensation to the wife of Shri Jasjit Singh Kalra. But the main thrust of the Writ Petitions was that there were extra-judicial executions and hasty and secret cremations.

The shackles and limitations under the Act are not attracted to this body as, indeed, it does not function under the provisions of the Act but under the remit of the Supreme Court. 2. The Supreme Court took cognizance of the allegations made in the writ petitions which, in turn, drew and relied upon a Press Note issued on 16 January 1995 by the Human Rights Wing of the Shiromani Akali Dal under the caption "Disappear:" "Cremation ground". The Press Note alleged that a large number of human rights bodies had been cremated by the Punjab Police after labelling them "unidentified". The Supreme Court was disturbed by the gravity of the allegations. It ordered an investigation by the CBI. Accordingly, the CBI, after completing its enquiry, submitted its fifth and final report in the Supreme Court on 9 December, 1996. The Supreme Court said that the reports disclosed "flagrant violation of human rights on a mass scale". It referred the matter to the National Human Rights Commission observing, "Without going into the matter any further, we leave the whole matter to be dealt with by the Commission". Concluding, the Supreme Court in its order dated 12th December, 1996, said:

"We request the Commission through its Chairman to have the matter examined in accordance with law and determine all the issues which are raised before the Commission by the learned counsel for the parties. Copies of the order dated November 15, 1995 and all subsequent orders passed by this Court alongwith copies of all the CBI reports in sealed covers be sent to the Commission by the Registry.
Since the matter is going to be examined by the Commission at the request of this Court, any compensation awarded by the Commission shall be binding and payable. If any approval or further assistance from this Court be necessary, the same may be sought by the Commission..."

This is how the matter is before the Commission. The Commission issued notices to the persons or authorities who were co-nominee parties to the two writ petitions before the Supreme Court. It also notified the Government of India.

3. At the very first hearing of the matter on 29 January 1997, the Commission desired to know from the parties and their learned counsel their views on certain basic assumptions relating to the Commission's jurisdiction under the Supreme Court's dispensation. The Commission desired the parties to clarify what, according to them, was the capacity in which the Commission functioned: Whether as an authority under the Protection of Human Rights Act, 1993 ('Act' for short) with the only difference that the order of the Supreme Court had had the effect of removing the bar of limitation under Section 36(2) of the Act, or whether the Commission was designated as a body sui-generis to perform certain functions and adjudicate certain issues entrusted and referred to it by the Supreme Court. The Commission also desired to elicit views and stand of the parties as to whether the Commission could, in-turn, set up adjudicatory mechanisms under it for speedier quantification of compensations subject, of course, to the Commission's approval.

4. The parties have since filed their petitions. Certain of these have exposed their objections, in the strongest terms, to the order of the highest court of the land. If accepted, these objections would go to the root of the Commission's power to deal with the matter. It is appropriate, therefore, that these objections be treated as preliminary objections an dealt with and disposed of at this stage of the proceedings.

The range of the objections may be illustrated with reference to some of them. It was thus contended that under Section 36(2) of the 'Act', the Commission stands denuded of jurisdiction in regard to matters which relate to accts occurring beyond an year anterior to the date of cognizance. While the Supreme Court stipulated that the Commission examine the matter "in accordance with law", it was asserted that the Commission was also bound by the provisions of Section 36(2) of the Act, and that, in the light of the undisputed facts, would by itself render the whole exercise irrelevant and the reference nugatory. Further, it was urged that the direction of the Supreme Court that "any compensation awarded by the Commission shall be binding and payable" would not square with the role of the Commission which was merely a recommendatory body under the Act. The Court, it was urged, could not make that legal which the law did not envisage. It could not order the Commission to act contrary to its statutory provisions. It was contended that the Court had virtually delegated its own judicial powers to another body, the Commission in this case, and that this was impermissible. The Supreme Court could not create a new jurisdiction where none existed under law.

5. Arising out of the foregoing objections, the following preliminary issues were framed:

6. Certain incidental questions as to the nature and the concept of compensation awardable in cases of human rights violation were also debated. The Commission has heard Shri R.S. Sodhi, Smt. Nitya Ramakrishnan, Mrs. Rita Manchanda and Shri Rakesh Shukla for the petitioners in the two writ-petitions; Shri R.S. Suri for the State of Punjab, Shri G. Ramaswamy, learned Senior Advocate and Shri Sudhir Walia for Respondents nos. 6 to 10. Shri Venkataramani, learned Senior Advocate assisted the Commission as Commission's counsel.

7. ISSUES 1 AND 2

These issues reflect the contentions of the respondents which if accepted, would render all further proceedings infructuous and pointless. It was urged that the Supreme Court designated the Commission as constituted under the 'Act'. The direction of the Supreme Court that the Commission shall "have the matter examined in accordance with law", in the context, can only mean “in accordance with the strict provisions of the Act”. If that is the intendment, in the undisputed facts of the case the limitation under Section 36(2) of the 'Act' is clearly attracted. Section 36(2) provides:

"The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed."

8. The following excerpts from the pleadings and contentions of respondents illustrate the nature of the objections in this behalf.

State of Punjab and its agencies (Respondents nos. 3, 4 & 5) contend:

"...The Hon'ble Supreme Court has specifically mentioned about the Protection of Human Rights Act, 1993 and has entrusted the issue of compensation being determined by Hon'ble NHRC in accordance with law..."
...Thus the matter has been referred to Hon'ble NHRC as a tribunal functioning under the Protection of Human Rights Act, 1993 and 'for making recommendation in accordance with law' which is the Protection of Human Rights Act, 1993 for the purposes of powers and jurisdiction of NHRC..."

Referring to the bar under Section 36(2) of the Act it is urged:

"...However, Section 36 of the Act specifically excludes certain matters from the purview of the jurisdiction of the Commission..."
"In this case the allegation regarding violation of Human Rights relate to the alleged acts committed more than a year ago. In view of the specific provision of Section 36(2) of the Act, these matters stand excluded from the purview of the jurisdiction of the Commission..."
"The Commission being a special tribunal with specific jurisdiction contemplated by the Act, is to function within the jurisdiction set out for it under the Act. All the matters which are specifically excluded, by the Act, from the purview of the Commission cannot be adjudicated upon by the Commission. The Commission is, therefore, requested to consider and decline the reference beyond its jurisdiction..."

The objections of Respondent nos. 6-10, who are the police officers of the State are also to the same effect. They say:

"...The clear intent of the order of the Apex Court as reproduced above, a reference has been made to this Hon'ble Commission to examine the issues regarding alleged violation of human rights especially in the light of the provisions of the Protection of Human Rights Act, 1993..."

9. These contentions pre-suppose and proceed on the premise that while issuing the directions the Supreme Court overlooked the limitation on the Commission's powers under Section 36(2) of the Act. It is necessary, therefore, to refer to the wide powers of the Supreme Court under Article 32 of the Constitution of India.

The Supreme Court in Bandhua Mukti Morcha Vs. Union of India & Others [1984(3) SCC 16] noticed a contention raised before it by the respondents in that case that, under Article 32, the Court was not empowered to appoint any Commission or investigating body to enquire into the allegations and make report. It rejected this contention as "based upon a total misconception of the true nature of proceeding under Article 32 of the Constitution". It observed:

"While interpreting Article 32, it must be borne in mind that our approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose for which this article has been enacted as a fundamental right in the Constitution and its interpretation must receive illumination from the trinity of provisions which permeate and energise the entire Constitution, namely, the Preamble, the Fundamental Rights and the Directive Principles of State Policy..."
"...We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people..."
"...If we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the qui vive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking..."
"...It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right..."

Again the case of M.C. Mehta Vs. Union of India [1987(1) SCC 395] it was observed:

"...It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental, and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights..."(emphasis supplied)

10. The order of the Supreme Court must be so read as to effectuate it. The Commission, the Governments and the parties are expected to act in aid and effectuation of that order; and not to frustrate it. The order must be construed reasonably and harmoniously. The expression "to have the matter examined in accordance with law" is not necessarily the same thing as "to function strictly within the limitations of the Act". The Supreme Court made the order in exercise of the plenitude of its jurisdiction under Article 32 of the Constitution. That, for the parties and the Commission, has the effect and force of law.

The reasonable way to construe the order and effectuate it is to hold that the Commission was referred to only for purposes of identifying it as the body to which the Supreme Court was turning, in this instance, for the protection of fundamental rights. Once the identification was made, it became a body sui-generis as the one chosen by the Supreme Court for carrying out its behests. The shackles and limitations under the Act are not attracted to this body as, indeed, it does not function under the provisions of the Act but under the remit of the Supreme Court. The provisions of the Act do not bind or limit the powers of the Supreme Court in exercise of its powers under Article 32. It is, therefore, reasonable to hold that the Supreme Court designated the Commission as a body sui-generis to carry out the functions and determine issues as entrusted to it by the Supreme Court. To read the order otherwise is to render it obtiose [sic].

11. Now to the contention that the order of the Supreme Court virtually compels the Commission to function contrary to the law. Respondents rely upon the following observations of the Supreme Court in Union of India Vs. Kirloskar Pneumatic Company Ltd [JT 1996(5) SC 26]:

"...The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law."

This contention, however, begs the question. It presupposes that the Commission was required to function strictly under the provisions of the Act. If this underlying assumption is erroneous, equally, as a corollary, the objection itself becomes erroneous and untenable.

12. In the light of the foregoing discussion, the Commission holds that the Commission was designated as a body sui-generis to carry out the mandate of the Supreme Court. As a logical consequence, it requires to be held on Issue No. 2 that the powers of the Commission in carrying out its mandate are not limited by Section 36(2) or other limiting provisions, if nay, under the 'Act'.

13. ISSUE 3

The assumption underlying this contention is that if the jurisdiction now claimed for the Commission is supportable, it could only be on the premise that the Court had delegated its own judicial power to the Commission. The State of Punjab contends that the:

"...referral of this matter to any other body/agency, in this case Hon'ble NHRC, is in violation of the spirit of the Constitution..."

Likewise, respondents 6 to 10 urge:

"...The Supreme Court did not invest the NHRC with its own judicial powers that were sought to be involved under its Article 32 jurisdiction. No court including the Supreme Court can vest jurisdiction in a forum not contemplated by the Statute..."
"...In this case there is no question of investing Article 32 jurisdiction upon the Commission, nor does the Act contemplate the Commission as anything other than a recommendatory body dependent upon court directions, orders or writs for enforceability..."
"...A direction given by the Apex Court in oblivions of the statutory provisions of the Act are deemed to be inoperative to the extent of the inconsistency with the provisions of the Act..."

The Central Government also contends that the effect of the order of the Supreme Court virtually tantamounts to the extension of ambit of jurisdiction of one statutory body and adds:

"...it is humbly submitted with utmost respect that it may not be strictly in accordance with the constitutional scheme of things..."

14. In substance, the contention is that the conferment of jurisdiction is a legislative act and that the Supreme Court cannot delegate its own judicial powers; and cannot also create and invest a new jurisdiction in a body which did not already possess that under the law. The decisions of the Supreme Court in the case of A.R. Antulay Vs. R.S. Naik & Anr. [1988(2) SCC 602] were referred to in this connection.

The maxim delegates non potest delegare, it is true, is applied with utmost rigour to the proceedings of the ordinary courts. De Smith's "Judicial Review of Administrative Action" (1995 edition Para 1) contains this statement of the law on the operation of this maxim in relation to 'judicial power':

"The maxim is applied with the utmost vigour to the proceedings of the ordinary courts, and in the entire process of adjudication a judge must act personally, except in so far as he is expressly absolved from this duty by statute. Special tribunals and public bodies exercising functions broadly analogous to the judicial are also precluded from delegating their powers of decision unless there is express authority to that effect."

15. Shri Venkataramani, learned Senior Advocate, appearing as Counsel for the Commission asserted, however, that the whole argument of an impermissible delegation, however otherwise apposite, has no place in the context of a constitutional mechanism, like Article 32, for the enforcement of fundamental Human Rights by the Supreme Court of India as their custodian, protector and enforcer. In extraordinary cases involving the violation of the human right to life on a mass scale, as alleged here, it would indeed by a cynical reflection on the great constitutional protections entrenched in the fundamental law of the land, to say that the Supreme Court's power to devise mechanisms for remedial actions is limited by some general concepts of jurisdiction relevant and appropriate only to ordinary civil litigations. The great constitutional power and duty cannot, he stated, be subject to the petty-foggery of civil litigation procedures.

Sri Venkataramani referred to emerging trends in human rights jurisprudence as also to the enforceability of international covenants as part of domestic law. These concepts have enhanced the remedial processes under the domestic laws in relation to human rights regimes. The constitutional duty of the Supreme Court to protect the right to life, the very essence and core of all other fundamental rights and liberties, itself propio-vigore enables and empowers the Court to set-up such agencies, instrumentalities, Commissions and even adjudicatory bodies and to infuse and breathe into them life and appropriate powers to enable the Court effectively to discharge its great duties as the constitutional custodian of the Fundamental Rights. Article 32 is, says Shri Venkataramani, a source of all-comprehending power and is by itself a great charter. The extraordinary constitutional jurisdiction under Article 32 cannot be abbreviated by legislative weakness. The investiture of jurisdiction into its agencies or instrumentalities by the Supreme Court, says counsel, is not one of 'delegation' but of 'devolution'.

16. The Commission is of the view that it is not necessary to seek recourse to these broader principles. The jurisdiction and powers of the Commission, to the extent they go, can be sustained on surer grounds which do not attract the vice of "delegation". The Supreme Court in its order has asked the Commission "to have the matter examined...and determine all the issues which are raised before the Commission". It has also observed that "if any approval or further assistance from this Court is necessary the same may be sought by the Commission." [emphasis supplied]

Reading these two stipulations together it becomes obvious that the Court did retain seisin over the matter and any determination by the Commission, wherever necessary and appropriate, would be subject to this power of approval of the Supreme Court in the very proceedings which is source of the Commission's jurisdiction. This negates and excludes any implications of a "delegation" of its own judicial powers to the Commission. The determination of the issues by the Commission is not, therefore, absolute and unfettered. Implicit in the order is the meaning that, wherever the determination of an issue by the Commission needs-for its finality-the approval of the Supreme Court, the Commission's decisions shall accordingly be subject to such approval.

17. If the order of the Supreme Court, for purposes of these preliminary objections, admits of being construed as not creating any exclusive final adjudicatory jurisdiction in the commission, but is understood as implying (I) that the Supreme Court continues to retain seisin over the cases; (ii) that the determination by the Commission of the issues arising in the matter may require, wherever necessary or appropriate, the 'approval' of the Supreme Court; (iii) that the stipulation that "compensation awarded by the Commission shall be binding and payable" shall be subject, to such 'approval' and that (iv) that the Commission discharges its functions under the Supreme Court's Order, it does so not as an independent adjudicatory body but as an instrumentality or agency of the Court, then all these objections do not survive. The order of Supreme Court is amenable to and admits of such a construction. For the present stage, this should suffice to reject the preliminary objections as to maintainability.

18. Accordingly issue 3 requires to be and is hereby answered in the negative.

19. ISSUE NO. 4

In order to ensure that the large number of claims that are likely to arise for determination are resolved in an expeditious manner, the Commission does need greatly to augment its logistical capability, including its administrative and judicial personnel. An adequate staff will thus become necessary and will require to be placed in position (limited to the period of pendency of these matters). At a stage just below the level of the Commission, some officers with judicial experience (call them enquiry-commissioners, claims-commissioners, special-commissioner, or whatever), require to be inducted. These claim-Commissioners may record and process the evidence, conduct enquiries under the directions of the Commission and recommend appropriate compensation subject to their final endorsement by the Commission. The Commission will need to create a separate wing or department, as it were, distinct from the normal staffing of the Commission, to deal with the requirements of this purpose. This work, as is clear, is not the work of the statutory Commission, in a strict sense, but the responsibility and concern of the body designated (selected) for this purpose by the Supreme Court. For all these matters, special administrative and financial allocations would require to be worked out with assistance of the State of Punjab and the Union of India. These are some of the future implications of the case and they will have to be borne in mind fully by the concerned Governments. With the foregoing observations, issue 4 is disposed.

20. Now a word as to the nature and content of the idea of compensation in such cases. Today, public law remedies are expanded and include award of compensation for violation of Human Rights. A range of decisions of the Supreme Court, more notably in Neelabati Nehera vs. State of Orissa 1993 (2) SCC 746, D.K. Basu vs. State of West Bengal 1996 (9) Scale 298 and PUCL vs. Union of India (1997) 2 JT 311 lay down the broad parameters of this emerging concept of damages in public law as part of the constitutional regime. There are also guidelines as to the nature and content of the idea of compensation in public law, its distinctiveness from the private-law remedies and of component elements in its quantification.

21. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, which the Government of India has recently signified its intention to ratify, has this requirement in Article 14(1):

"Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible."

This Convention is, as of now, not yet adopted; only a decision to do so has been signified. Article 2.3(a) of the UN International Covenant on Civil and Political Rights 1966 require the state-parties:

"to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity."

Customary rules of International Law are part of the domestic law; and treaties and conventions were held not to form part of the Municipal Law without their domestic re-births. But great changes have been emerging in this scenario as well, by virtue of judicial decisions. The Supreme Court of India in the case of PUCL Vs. Union of India (1997) 2 JT 311 has stated:

"For the present, it would suffice to state that the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such.
In so far as they concern fundamental rights in the Indian Constitution, resolutions of the General Assembly of the United Nations which lay down certain universal principles, are entitles to be treated as a part of the norms of international law and are entitled to respect and are susceptible to incorporation as part of any particular fundamental right."

22. Even long prior to the 1984 Convention against Torture, the Supreme Court in Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi & Ors. [1981(2) SCR 516] had held that the Right against Torture was part of the concept of Right to Life entrenched in Article 21 of the Constitution.

23. Historically, cases involving claims for damages for violation of International Human Rights came to be litigated in the US Courts in the last 25 years with increasing frequency. Over approximately the same period, the Supreme Court of India did pioneering judicial work for the development of Public-law standards for constitutional remedies for violation of Fundamental Rights. In one of the earlier American cases viz., Filartiga Vs. Pena-Irala [630 F.2d 876 (2d Cir. 1980)] it was held that "Torture constituted a violation of a customary international law and enforceable per-se in the national Courts".

24. In India great strides have since been made in the field of evolving legal standards for remedial, reparatory, punitive and exemplary damages for violation of human rights. In a recent judgment of far reaching significance that will shape the future in D.K. Basu Vs. State of West Bengal, the Supreme Court said:

"...Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation."

The said judgment set a humane judicial regime governing treatment of custodial prisoners and suspects and, what is more, attached for their violation the pain of committal in contempt for their violations. This is the farthest step taken in any jurisdiction anywhere prescribing such stern sanctions for violations of human rights.

The Supreme Court has laid down that principles for award of compensation by the courts as a part of the public law regime which will supplement the inadequacies of the statutory law. There is, thus, an enforceable right to compensation recognised in the public law regime in India.

25. Indeed the question of quantification of compensation will arrise [sic] only after the factual foundations are laid establishing liability and, only thereafter, the questions of quantification follow.

26. The preliminary issues are disposed of accordingly.

Sd/
(Justice M.N. Venkatachaliah)
Chairperson

Sd/
(Shri Virendra Dayal)
Member

Sd/
(Justice V.S. Malimath)
Member

4th August, 1997

Sign up for e-updates
Make a Donation