Note: Colin Gonsalves ceased to be a Director of the Human Rights Law Network (SLIC) a long time ago. However, our founder continues to inspire us and he is closely related to HRLN on pro bono litigation. He argues PIL's as a Senior Counsel at The Supreme Court of India and trains young lawyers in human rights litigation. Colin Gonsalves appeared in this matter in his personal capacity as a Senior Counsel at The Supreme Court of India. The Social Justice Bench in Supreme Court comprising of Justice Madan B. Lokur and Justice Uday Umesh Lalit on the 14th July 2017 passed a landmark judgement for the victims of fake encounter Killings of 1528 victims by police personnel and personnel in uniforms of the armed forces of the Union in the 'Extra Judicial Execution of Victim Families Association versus Union of India' This Judgement respectfully followed and up held the view of the Constitutional Bench in 'Naga People's Movement of Human Rights vs Union of India' that an allegation of excess force or retaliatory form by the uniformed personnel resulting in death necessitates a thorough enquiry into the incident. At the first instance of this case, the Hon'ble Court was of the opinion that the documentation filed was inadequate and lacking to order an inquiry therefore directed that these documents should be completed indicating if they were based on Judicial enquiry or enquiry conducted by the National Human Rights Commission or an enquiry made as per the Commissions of Inquiry Act 1952. The petitioners filed tabular statements based on the above differentiation of cases which was accepted by the Amicus Curie as well as the Union and the State. Here the Petitioner gathers information of 655 deaths out of 1528 based on their findings: Sl No 1 / 8
PARTICULARS NO OF CASES 1 Commission of Inquiry Cases 35 2. Judicial Inquiry and High Court Cases 37 3. NHRC Cases 23 2 / 8
4. Cases with written Complaint 170 5. Cases with Oral Complaint 78 6. Cases with Eye Witness 134 7. Family Claimed Cases 3 / 8
178 Total Number : 655 The Hon'ble Court on pursuance of the tabular statements is concern with the first three particular related cases out of the Seven. For the rest of the cases mention being general in nature, the Hon'ble Court did not think it appropriate to pass any direction and is of the opinion that the Hon'ble Court is concern with the systematic or institutional response relating to constitutional criminal Law. Hence : 1. Deaths investigated by Commission of Inquiry. The Hon'ble Supreme Court reserves any direction in three deaths of which were not mentioned in the Writ Petition and that which is pending before same Court as Civil Appeal NO 65-69 of 2015. In the rest of the 32 cases the Hon'ble Court held that the is more than a prima facie case made out for lodging an FIR before the appropriate Police Station. 2. Deaths considered by Judicial Inquiries and High Court 4 / 8
The Supreme Court observed that: The Hon'ble Gauhati High Court had entertained 37 Petitions and ordered a judicial enquiry in some of these cases. Two Writs are still pending before the High Court of Gauhati and is directed to expeditiously dispose them if they have not been disposed off. One Writ has been dismissed having found no substance in the allegations which may be treated as Closed. There is no specific information with regard to two other writs and it is directed that the investigating team to ascertain the correct factual position. With regard to the remaining Writs the High Court has awarded compensation to the next kin of the deceased which establishes that more than a prima facie case has been found of a fake encounter direct the registration of FIRs in these cases. 3. Deaths inquired into by the NHRC There are as many as 20 deaths reported to the NHRC. Of them 7 complaints are pending before the NHRC to which a decision is directed as soon as possible. There is no specific Complain with regard to two complaints and is directed that the investigating team to ascertain the results of these complaints. The remaining Complaints have been awarded compensation to the next kin establishing a 5 / 8
case of fake encounter therefore it is directed that a FIR is registered in respect of these complaints. Inquiry by the Justice Santosh Hegde Commission As per the Six cases which were considered by the Commission headed by Justice Santosh Hegde, ( Retired Judge) it is directed that a FIR must be lodged and after due investigation further steps need to be taken in accordance with Law. Submission and Consideration: The Hon'ble Supreme Court disagrees that incidents of considerable vintage may not be reopen for investigation, it is held that a crime committed which involves a death of a person who is possibly innocent cannot be overlooked because of lapse of time. It is noted that it was the obligation of the State, to have suo moto conducted a thorough inquiry at the appropriate time but merely because the State has not taken any action allowing time to go by, cannot take advantage of the delay to scuttle an inquiry. The Union of India submits that local pressures and ground level situation led to the inquiries being biased in favour of the citizens, is rejected by the Court as any break down of the rule of law in the State of Manipur, the Government of India was under the obligation to take appropriate steps. To submit that the inquiries were unfair and motivated is casting serious aspersions on the independence of the authorities in Manipur. The Hon'ble Court accepts all petitions filed by third party or the next kin that had themselves given a quietus to the incident. Further it stated that constitutional jurisprudence does not permit the courts to shut the door on deprived sections of Society and the importance of PILs. It is observed that compensation money being paid to the victim's family is not the ends of Justice. 6 / 8
Special Investigation Team It is held that the local police should not be associated with the SIT as in some of the cases their role has been adversely commented upon by the Court. ( Please refer to the Order dated 14.7.2017 for reference) NHRC a Toothless Tiger: NHRC in its own capacity can only issue various guidelines, give directions and revising the same if there is no compliance and as such there is no mechanism to implement the various guidelines. Hence it is observed that they only expect all the State Governments to abide by the directions issued by NHRC from time to time. State Human Rights Commission The Protection of Human Rights Act 1993 provides for constitution of State Human Commissions under Sec 21, which is not made mandatory, however the Court is of the opinion that provisions of Part III of our Constitution Art 21 requires every State to constitute a State Human Rights Commission, this Hon'ble Court particularly does not issues any direction on the same in the pending Writ. But the Bench lightly nudge the States to constitute State Human Rights Commission at the earliest for protection of life and liberty of every person in the country. Annual Reports: The Bench expresses the importance of Human Rights and ensures that the Annual Reports of the NHRC will be made available with due expedition. Orders: 7 / 8
The Court was please to pass: Direct the CBI to nominate a team within two weeks. Petition to be list positively in the second week of January 2018. {edocs}manipur-judgement-14-jul-2017.pdf,700,800,link{/edocs} 8 / 8