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Tuesday, January 8, 2013

The writ petitioners make the prayer to constitute a Special Investigation Team comprising police officers from outside Manipur to investigate the cases of unlawful killings listed in the writ petition and to prosecute the alleged offenders but at this stage we are not inclined to appoint any Special investigation Team or to direct any investigation under the Code of Criminal Procedure. Instead, we would first like to be fully satisfied about the truth of the allegations concerning the cases cited by the writ petitioners. To that end, we propose to appoint a high powered commission that would tell us the correct facts in regard to the killings of victims in the cases cited by the petitioners. We, accordingly, constitute a three-member commission as under: 1. Mr. Justice N. Santosh Hegde, a former Judge of the Supreme Court of India, as Chairperson 2. Mr. J. M. Lyngdoh, former Chief Election Commissioner, as Member 3. Mr. Ajay Kumar Singh, former DGP and IGP, Karnataka. We request the Commission to make a thorough enquiry in the first six cases as detailed in “Compilation 1”, filed by the petitioners and record a finding regarding the past antecedents of the victims and the circumstances in which they were killed. The State Government and all other concerned agencies are directed to hand over to the Commission, without any delay, all records, materials and evidences relating to the cases, as directed above, for holding the enquiry. It will be open to the Commission to take statements of witnesses in connection with the enquiry conducted by it and it will, of course, be free to devise its own procedure for holding the enquiry. In light of the enquiries made by it, the Commission will also address the larger question of the role of the State Police and the security forces in Manipur. The Commission will also make a report regarding the functioning of the State Police and security forces in the State of Manipur and in case it finds that the actions of the police and/or the security forces transgress the legal bounds the Commission shall make its recommendations for keeping the police and the security forces within the legal bounds without compromising the fight against insurgency. The Commission is requested to give its report within twelve weeks from today. The Central Government and the Government of the State of Manipur are directed to extend full facilities, including manpower support and secretarial assistance as may be desired by the Commission to effectively and expeditiously carry out the task assigned to it by the Court. The Registry is directed to furnish a copy of this order and complete sets of briefs in both the writ petitions to each of the members of the Commission forthwith. Put up on receipt of the report by the Commission.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                    CRIMINAL/CIVIL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.129 OF 2012

EXTRA JUDICIAL EXECUTION VICTIM FAMILIES
ASSOCIATION (EEVFAM) AND ANOTHER        PETITIONER(S)

                                   VERSUS

UNION OF INDIA & ANOTHER                           RESPONDENT(S)

                                    WITH

                    WRIT PETITION (CIVIL) NO.445 OF 2012

SURESH SINGH                                 PETITIONER(S)

                                   VERSUS

UNION OF INDIA & ANOTHER                RESPONDENT(S)

                                  O R D E R



                 These two writ petitions, each filed under  Article  32  of
the Constitution of India, raise some disquieting issues pertaining  to  the
State of Manipur.  In writ petition (criminal) No.129 of 2012, it is  stated
that, over the years, a large number of people, Indian citizens,  have  been
killed by the Manipur Police and other security forces while  they  were  in
custody or in stage-managed encounters or in ways broadly termed as  ‘extra-
judicial executions’.  In writ  petition  (civil)  No.445  of  2012,  it  is
stated that for a very long time,  the  State  of  Manipur  is  declared  as
“disturbed area” and is put under the Armed  Forces  (Special  Powers)  Act,
1958, subverting the civil rights of the citizens of the  State  and  making
it possible for the security forces to kill innocent persons with  impunity.


      In this order, we deal  with  the  first  writ  petition,  i.e.,  writ
petition (criminal) No.129/2012.

      In this writ petition it is stated that during the  period  May,  1979
to  May,  2012,  1528  people  were  killed  in  Manipur  in  extra-judicial
execution. The statement is mainly based on a memorandum prepared by  ‘Civil
Society Coalition on Human Rights in Manipur and the UN’  and  submitted  to
one  Christof  Heyns,  Special  Rapporteur  on  extrajudicial,  summary   or
arbitrary executions, Mission to India, 19-30 March,  2012.  The  Memorandum
compiles the list of 1528 people allegedly killed unlawfully  by  the  State
Police  or  the  security  forces.  The  writ  petitioners  later  on  filed
“Compilation 1” and “Compilation 2”. In “Compilation 1”  details  are  given
of ten (10) cases relating to the killings of eleven (11)  persons  (out  of
the list of 1528); in  “Compilation  2”,  similarly  details  are  given  of
thirteen (13) cases in which altogether seventeen (17) persons (out  of  the
list of 1528) are alleged to have been killed in extra judicial  executions.

      A counter affidavit is filed on behalf of the  State  of  Manipur.  In
the  counter  affidavit  there  is  not  only  a  complete  denial  of   the
allegations made in the writ petition but there also seems to be an  attempt
to forestall any examination of the matter by this Court. The plea is  taken
that the National Human Rights Commission (NHRC) is the proper authority  to
monitor the cases referred to in the writ petition. It  is  stated  that  in
regard to all the ten (10) cases highlighted in  “Compilation  1”  filed  by
the petitioners, reports have been submitted to it  and  in  none  of  those
cases the NHRC has recorded any finding of violation of human rights. It  is
stated that the occasion for this Court to examine those cases  would  arise
only if it  holds  that  the  NHRC  had  failed  to  perform  its  statutory
functions in safeguarding the human rights  of  the  people  in  the  State.
This Court should not examine this matter directly but should only  ask  the
NHRC to indicate the status of the cases listed and highlighted in the  writ
petition. We are unable even to follow such a plea. The course suggested  by
the State will completely dissipate the vigour and vitality  of  Article  32
of the Constitution. Article 21 coupled with Article 32 of the  Constitution
provides the finest guarantee and the  most  effective  protection  for  the
most precious of all rights, namely, the right to life and personal  liberty
of every person. Any indication of the violation of the  right  to  life  or
personal liberty would put all the faculties of this Court at high alert  to
find out the truth and in case the Court finds  that  there  has,  in  fact,
been violation of the right to life and personal liberty of any  person,  it
would be the Court’s  bounden  duty  to  step-in  to  protect  those  rights
against the unlawful onslaught by the State. We, therefore,  see  no  reason
not to examine the matter directly but  only  vicariously  and  second-hand,
through the agency of the NHRC.
      A reference is next  made  in  the  counter  affidavit  to  an  appeal
pending before this Court against the judgment of the Bombay High Court  and
a writ petition, also pending before this  Court,  filed  by  the  State  of
Gujarat on the subject of fake encounters and it is stated  that  this  case
should be tagged with those other two cases to be heard  together.  We  fail
to see any relevance of the two cases referred to in the  counter  affidavit
and, in our view, the plea that these two  writ  petitions  should  only  be
heard along with those two cases is meant to detract from consideration  the
grave issues raised in the writ petition.
      It is thirdly stated in  the  counter  affidavit  that  the  State  of
Manipur is faced with the menace of insurgency for many  years  and  details
are given of policemen and civilians killed and injured by  the  insurgents.
There are about 30 extremist organizations in the State  out  of  which  six
are very powerful and they are armed with sophisticated weapons.  Their  aim
and object is  to  secede  from  the  Republic  of  India  and  to  form  an
independent State of Manipur. For realization of their objective  they  have
been indulging in violent activities, including  killing  of  civilians  and
members of security forces.  It is stated  in  the  counter  affidavit  that
during the period 2000 to October, 2012, 105 policemen, 260 security  forces
personnel, and 1214 civilians were killed; the number of injured during  the
same period is 178 for the policemen, 466 for  members  of  security  forces
and 1173 for civilians.
      There is no denying  that  Manipur  is  facing  the  grave  threat  of
insurgency.  It is also clear that a number  of  the  insurgent  groups  are
operating there, some of which are heavily armed. These  groups  indulge  in
heinous crimes like extortion and  killing  of  people  to  establish  their
hegemony.  It is also evident from the counter affidavit filed by the  State
that a number of police personnel and members of security forces  have  laid
down  their  lives  or  received  serious  injuries  in   fighting   against
insurgency. But, citing the number of the policemen and the security  forces
personnel and  the  civilians  killed  and  injured  at  the  hands  of  the
insurgents  does  not  really  answer  the  issues  raised   by   the   writ
petitioners.
       In  People’s  Union  for  Civil  Liberties  v.  Union  of  India  and
another[1], this Court earlier dealt  with  a  similar  issue  from  Manipur
itself.  In that case, it was alleged that two  persons  along  with  others
were seized by the police and taken in a truck to a distant place  and  shot
there. In an inquiry by the District and  Sessions  Judge,  Manipur  (West),
held on the direction  of  this  Court,  the  allegation  was  found  to  be
correct. In that case, dealing with question of  the  right  to  life  in  a
situation where the State was infested with terrorism and  insurgency,  this
Court in paragraphs 5 and 6 of the judgment observed as follows:
    “5. It is submitted by Ms S. Janani, the learned counsel for the  State
    of Manipur, that Manipur is a disturbed area, that  there  are  several
    terrorist groups operating in the State, that Hamar Peoples' Convention
    is one of such terrorist organizations, that they have  been  indulging
    in a number of crimes affecting the public order  —  indeed,  affecting
    the security of the State. It is submitted that there have been regular
    encounters and exchange of fire between  police  and  terrorists  on  a
    number of occasions. A number of citizens have suffered at the hands of
    terrorists and many people have been killed. The  situation  is  not  a
    normal one. Information was received by the police that terrorists were
    gathering in the  house  on  that  night  and  on  the  basis  of  that
    information, police conducted the raid. The raiding party was fortunate
    that the people inside the house including the deceased did not  notice
    the police, in which  case  the  police  would  have  suffered  serious
    casualties.  The  police  party  was  successful  in   surprising   the
    terrorists. There was exchange of fire resulting in the  death  of  the
    terrorists.


    6. In view of the fact that we have accepted the  finding  recorded  by
    the learned District and Sessions Judge, it is not possible  to  accede
    to the contention of Ms Janani insofar  as  the  manner  in  which  the
    incident had taken place. It is true that Manipur is a disturbed  area,
    that there appears to be a good amount of terrorist activity  affecting
    public order and, may be, even security of that State. It may  also  be
    that under these conditions, certain additional and unusual powers have
    to be given to the police to deal with terrorism. It may  be  necessary
    to fight terrorism with a strong hand which may involve vesting of good
    amount of discretion in  the  police  officers  or  other  paramilitary
    forces engaged in fighting them. If the  version  of  the  police  with
    respect to the incident in question were true, there could have been no
    question of any interference by the court.  Nobody  can  say  that  the
    police should wait till they are shot at. It is for the  force  on  the
    spot to decide when to act, how to act and where to act. It is not  for
    the court to say how the terrorists should  be  fought.  We  cannot  be
    blind to the fact that even after fifty years of our independence,  our
    territorial integrity is not fully secure. There are several  types  of
    separatist and terrorist activities in several parts  of  the  country.
    They have to be subdued. Whether they should be fought  politically  or
    be dealt with by force is a matter of  policy  for  the  Government  to
    determine. The courts may not be the  appropriate  forum  to  determine
    those questions. All this is  beyond  dispute.  But  the  present  case
    appears to be one where two persons along with some  others  were  just
    seized from a hut, taken to a long distance away in a  truck  and  shot
    there. This type of activity cannot certainly be  countenanced  by  the
    courts even  in  the  case  of  disturbed  areas.  If  the  police  had
    information that terrorists were gathering at a particular place and if
    they had surprised them and arrested them, the proper course  for  them
    was to deal with them according to law.   “Administrative  liquidation”
    was certainly not a course open to them.”
                                  (emphasis added)


      We respectfully reiterate what  was  earlier  said  by  the  Court  in
   People’s Union for Civil Liberties.
      In 1997, in  the  Peoples’  Union  for  Civil  Liberties  this  Court,
dealing with the case of killing of two persons  in  Manipur  had  cautioned
the State against “Administrative liquidation”. But, after 15 years in  this
case, we are faced with similar allegations on a much larger scale.
      For this Court, the life of a policeman or a member  of  the  security
forces is no less precious and valuable than any  other  person.  The  lives
lost in the fight against terrorism  and  insurgency  are  indeed  the  most
grievous loss. But to the State it is  not  open  to  cite  the  numbers  of
policemen and security  forces  killed  to  justify  custodial  death,  fake
encounter or what this Court had called “Administrative liquidation”. It  is
simply not permitted by the Constitution.  And  in  a  situation  where  the
Court finds a person’s rights, specially the right to life under assault  by
the State or the agencies of the State, it must step-in and stand  with  the
individual and prohibit the State or its agencies from violating the  rights
guaranteed under the Constitution. That is the role of  this  Court  and  it
would perform it under all circumstances. We,  thus,  find  that  the  third
plea raised in the counter affidavit is equally without substance.
       Lastly,  the  counter  affidavit,  and  the   Supplementary   Counter
Affidavit filed by the State give  the  State’s  version  of  the  10  cases
highlighted in the Compilation 1, filed by the petitioners. But on  that  we
would not like to make any comment at this stage.
      The Union of India has also filed a separate counter affidavit. It  is
a more responsible affidavit in that it does not evade the issues  nor  does
it try to dissuade the Court from examining  the  cases  of  alleged  extra-
judicial executions brought to its notice by the writ  petitioners.  In  the
counter affidavit  filed  by  the  Union,  first  a  reference  is  made  to
different legal provisions (Section 146 and  Sections  129  to  132  of  the
Criminal Procedure Code, Sections 99 to 106 in  Chapter  IV  of  the  Indian
Penal Code and Section 4 of the Armed Forces  (Special  Powers)  Act,  1959)
and it is contended that subject  to  the  conditions  stipulated  in  those
provisions, killing of a person by a police  officer  or  a  member  of  the
armed forces may not amount to an offence and may be justified  in  law.  It
is stated in  the  counter  affidavit  that  all  the  cases  listed  and/or
highlighted in the writ petition and described as extra-judicial  executions
are cases of persons who died during  counter-insurgency  operations  or  in
performance of other lawful duties by the police and the  personnel  of  the
armed forces. It is emphasized that in  most  of  the  cases  the  so-called
victims might have been killed in the lawful exercise of the  powers  and/or
in discharge  of  official  duties  by  the  police  and  the  armed  forces
personnel.  It is further said that “public order” and, by implication,  the
maintenance of “law and order” are primarily State subjects and the role  of
the Central Government in deploying the armed forces personnel in the  State
is only supportive in aid of the law and order machinery of the State.   The
State  of  Manipur  has  the  primary  duty  to  deal  with  the  issue   of
investigation in relevant cases, except where provided to  the  contrary  in
any other law for the time being in force.  It  is  stated  that  the  “very
gloomy picture” of the State of Manipur sought to be presented by  the  writ
petitioners is incorrect and misleading. It  is  asserted  that  Manipur  is
fully and completely integrated with the rest  of  the  country  and  it  is
pointed out that in the  1990  elections  the  voting  turnout  for  the  60
assembly seats in the State was 89.95%. Similarly, during  the  recent  2012
assembly elections, the voting turnout was 83.24%.  It  is  added  that  the
voting percentage in Manipur is amongst the highest  in  the  country  as  a
whole and it clearly shows that the people  of  Manipur  have  taken  active
participation in the elections showing their full faith in the  Constitution
and the constitutional process.
      Coming to the issue  of  insurgency,  it  is  stated  in  the  counter
affidavit as under:
            “It is only a handful of disgruntled elements  who  have  formed
      associations/ groups that indulge in militant and unlawful  activities
      in order to retain their influence and hegemony in the society.  These
      groups also challenge the sovereignty and integrity of the country  by
      following aims and objectives which are secessionist in nature.  It is
      emphasized that only around 1500 militants are holding a population of
      23 lakhs in Manipur to ransom and keeping the people in constant fear.
      The root cause of militancy in Manipur is the  constant  endeavour  of
      these insurgent groups so that they can continue to extort  money  and
      the leaders of such groups can continue  to  lead  luxurious  life  in
      foreign countries.  The tribal divide and factions in the society  and
      the unemployed youth are being exploited by these militant outfits  to
      fuel tension in the society.”

      It is further stated in paragraph  13  of  the  counter  affidavit  as
under:
      “It may also be  submitted  that  the  ethnic  rivalries  amongst  the
      different tribal groups viz. Meities, Kukis and Nagas are  deep-rooted
      and the militant groups fervently advance their ideologies  by  taking
      advantage of the porous international border with Myanmar which is 256
      km long, heavily forested and contains  some  of  the  most  difficult
      terrain.  The border area is inhabited by the same  tribes  on  either
      side. These tribes have family relations and for social interactions a
      free movement regime for the locals to move up to 16 kms on both sides
      is permitted. Taking advantage of this situation the militant  outfits
      utilize the other side of the border (which is beyond the jurisdiction
      of  the  Indian  Armed  Forces)  for  conveniently  conducting   their
      operations of extortions/ kidnapping/ killing/ looting  and  ambushing
      the security forces.”

      The counter affidavit goes on to explain that the  operations  of  not
only the State Police but the different security forces  under  the  control
of the Central Government are being strictly monitored and kept  within  the
parameters set out by the different laws under which those  forces  operate.
It is stated that different statutory agencies  acting  as  watchdog  ensure
that the armed forces do  not  overstep  the  Constitutional  or  the  legal
limits in carrying out the anti-insurgency operations.
      Ms. Guruswamy, the learned amicus has, on the  other  hand,  presented
before us tables and charts showing the  inconsistencies  in  the  materials
produced by the State of Manipur itself concerning the 10 cases  highlighted
in “Compilation 1” filed by the petitioners. She also submitted that  though
enquiries were purported to be held by an Executive  Magistrate  in  the  10
cases described in “Compilation 1”, in none of those cases the  kin  of  the
victims came before the Magistrate to  give  their  statements  even  though
they were approaching the court, complaining that the  victims  were  killed
in fake encounters. She further pointed out that in some of the  cases  even
the police/security forces personnel who were engaged in  the  killings  did
not turn up, despite  summons  issued  by  the  Magistrate,  to  give  their
version of the occurrence and the Magistrate closed the  enquiry,  recording
that there was nothing to indicate that the victims were killed  unlawfully.
In some cases the Magistrate, even while  recording  the  finding  that  the
case did not appear  to  be  one  of  fake  encounter  made  the  concluding
observation that it would be helpful to sensitize  the  police/armed  forces
in human rights. She submitted that the  so-called  enquiries  held  by  the
Magistrate were wholly unsatisfactory and no reliance  could  be  placed  on
the findings recorded in those enquiries.
      Apart from the criticisms made by the amicus against  the  Magisterial
enquiries held in the 10 cases of “Compilation 1” it is  important  to  note
that a number of cases cited by the petitioners  had  gone  to  the  Gauhati
High Court and on the direction of the High Court, inquires, of  a  judicial
nature, were made  into  the  killings  of  (1)  Azad  Khan,  age  12  years
(according to the State, 15 years) (from  “Compilation  1”),  (2)Nongmaithem
Michael Singh, age 32 years, (3) Ningombam Gopal Singh, age  39  years,  (4)
(i) Salam Gurung alias  Jingo,  age  24  years,  (ii)  Soubam  Baocha  alias
Shachinta, age 24 years (5) (i) Mutum  Herojit  Singh,  age  28  years  (ii)
Mutum Rajen, age 22 years (6) Ngangbam Naoba alias Phulchand Singh,  age  27
years (7) Sapam Gitachandra Singh, age 22 years (8)  (i)  Kabrambam  Premjit
Singh, (ii) Elangbam Kanto Singh (9) Longjam Uttamkumar Singh, age 34  years
(10) Loitongbam Satish @ Tomba Singh, age 34  years  (11)  Thockhom  Inao  @
Herojit Singh, age 31 years, (12) Khumallambam  Debeshower  Singh  (13)  (i)
Km. Yumnam Robita Devi (ii) Angom Romajitn Singh  (14)  Thoudem  Shantikumar
Singh (all from “Compilation 2”).
      In all those cases the judicial inquiry found that  the  victims  were
not members of any insurgent or unlawful groups and they were killed by  the
police or security forces in cold blood and stage-managed encounters.
      It is  stated  on  behalf  of  the  petitioners  that  though  it  was
established in the judicial enquiry  that  those  persons  were  victims  of
extra-judicial executions, the High Court simply  directed  for  payment  of
monetary compensation to the kins of the victims. Learned  Counsel  for  the
petitioners submitted that payment of rupees two to four lakhs  for  killing
a person from funds that are not subjected to  any  audit,  instead  of  any
accountability for cold blooded murder, perfectly suits the security  forces
and they only get encouraged to carry out further killings with impunity.
      On a careful consideration of the averments made in the writ  petition
and the counter affidavits filed  by  the  respondents  and  on  hearing  Ms
Guruswamy, the amicus, Mr. Gonsalves the learned counsel appearing  for  the
writ petitioners, Mr. Kuhad, the Additional Solicitor General appearing  for
the Union of India, Mr. Ranjit Kumar,  senior  advocate  appearing  for  the
State of Manipur and Ms. Shobha, advocate appearing for the  NHRC,  we  find
it impossible to overlook the matter without further investigation.  We  are
clearly of the view that this matter requires  further  careful  and  deeper
consideration.
       The  writ  petitioners  make  the  prayer  to  constitute  a  Special
Investigation Team  comprising  police  officers  from  outside  Manipur  to
investigate the cases of unlawful killings listed in the writ  petition  and
to prosecute the alleged offenders but at this stage we are not inclined  to
appoint any Special investigation Team or to direct any investigation  under
the Code of Criminal Procedure. 
Instead, we would first  like  to  be  fully
satisfied about the truth of the allegations concerning the cases  cited  by
the writ petitioners. 
To that end, we propose  to  appoint  a  high  powered
commission that would tell us the correct facts in regard  to  the  killings
of  victims  in  the  cases  cited  by  the  petitioners.  
We,  accordingly,
constitute a three-member commission as under:
              1. Mr. Justice N.  Santosh  Hegde,  a  former  Judge  of  the
                 Supreme Court of India, as Chairperson
              2. Mr. J. M. Lyngdoh, former Chief Election Commissioner,  as
                 Member
              3. Mr. Ajay Kumar Singh, former DGP and IGP, Karnataka.

      We request the Commission to make a thorough enquiry in the first  six
cases as detailed in “Compilation 1”, filed by the petitioners and record  a
finding regarding the past antecedents of the victims and the  circumstances
in which they were killed. 
The State  Government  and  all  other  concerned
agencies are directed to hand over to the  Commission,  without  any  delay,
all records, materials and evidences relating  to  the  cases,  as  directed
above, for holding the enquiry. 
It will be open to the  Commission  to  take
statements of witnesses in connection with the enquiry conducted by  it  and
it will, of course, be free to devise its  own  procedure  for  holding  the
enquiry. 
In light of the enquiries made by  it,  the  Commission  will  also
address the larger question  of  the  role  of  the  State  Police  and  the
security  forces  in  Manipur.  
The  Commission  will  also  make  a  report
regarding the functioning of the State Police and  security  forces  in  the
State of Manipur and in case it finds that the actions of the police  and/or
the security forces transgress the legal bounds the  Commission  shall  make
its recommendations for keeping the police and the  security  forces  within
the legal bounds without compromising the fight against insurgency.
      The Commission is requested to give its  report  within  twelve  weeks
from today.
      The Central Government and the Government of the State of Manipur  are
directed  to  extend  full  facilities,  including  manpower   support   and
secretarial assistance as may be desired by the  Commission  to  effectively
and expeditiously carry out the task assigned to it by the Court.
      The Registry is directed to furnish a copy of this order and  complete
sets of briefs in both the writ petitions to each  of  the  members  of  the
Commission forthwith.
      Put up on receipt of the report by the Commission.








                             …..………………………….J.
                             (Aftab Alam)




                             …..………………………….J.
                             (Ranjana Prakash Desai)
   New Delhi;
   January 4, 2013.



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[1]    (1997) 3 SCC 433

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