PUCL Bulletin, September 2002

PUCL plea for establishment of UP State Human Rights Commission

(The latest chapter of the efforts of the UP PUCL for the establishment of a State Human Rights Commission was in the shape of a petition that came for hearing on August 12 2002. Shri K.G. Kannabiran, President, PUCL appeared for the UP PUCL.

There were objections to some paragraphs in the petition as being contemptuous, which were withdrawn with apology. JJ Rafat Alam and M Chaudhary delivered the Judgement appended at the end. The history of the struggle for UP SHRC is summarized in the shape of a letter to the CJ UP, which is excerpted below -Chief Editor)

Dear Hon'ble Chief Justice, dear Hon'ble Judges,
The National Human Rights Commission in its Annual Report (1966-67) observed:

"In a democracy, good governance requires that each of its three pillars, the Legislature, the Executive and the Judiciary function with competence and integrity, watched-over by a free and independent press. When any of the pillars shows weakness, or a loss of integrity, a disproportionate burden falls on the others, leading to excesses that negatively affect the fine balance of the Constitution and the equilibrium of democracy itself, including the manner in which the rights of its citizens are respected".

The National Human Rights Commission rightly observed that when any of the three pillars shows weakness, a disproportionate burden falls on the others. But what would happen, if all the three pillars including Judiciary "shows weakness".

This court is showing the weakness in not being able to implement its judgments, to constitute State Human Rights Commission which is apparent by the facts stated below and the said facts, are borne out from the records of the proceedings of this court. This weakness of this Hon'ble Court is encouraging the police to indulge a large scale fake encounters, custodial violence and other blatant violation of Human Rights.

The PUCL (UP branch) by moving an intervention application in Uttarakhand Sangharsh Samitee Vs. State of UP 1996(1) U.P.L.B.E.C. 461 sought a relief of a mandamus commanding the State of UP to establish a State Human Rights Commission. This court after noticing blatant and large scale violations of Human Rights in which many citizens were shot dead, many women were raped; molested and their modesty was outraged; manner in which inhuman and bestial activities were conducted by State machinery, held that the State machinery in this state is acting in violation of all norms of law and then granted the relief sought by UP PUCL in the following terms.

This Court, accordingly, is of the opinion that the reliefs and directions as have been enumerated hereinafter would be just, equitable and expedient. The reliefs are:

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The State of Uttar Pradesh may consider establishing a Human Rights Commission for complaints as are alleged within the State, as envisaged in the Human Rights Act, 1992, a legislative intent of the Parliament which is being ignored by the State for long.

Thereafter, in Harikrishna Maheshwari Vs. State of UP 1996 JIC 1034, another mandamus was issued for the establishment of a State Human Rights Commission 'as early as possible'.

On 4-4-1996, a notification was issued by the Governor of Uttar Pradesh U/s 21(1) of protection of Human Rights Act. In the said notification, it was mentioned that it was being issued in view of the mandamus by this court to establish 'State Human Rights Commission'. After that the Government of UP came to receive a letter from the Chairperson, National Human Rights Commission (Former CJI, MN Venkatchaliah) advising the Government of UP to issue notification under section 21(2) or the Act. Soon thereafter, writ petition No. 24962 of 1998 was filed by PUCL UP branch, inviting the attention of the court to the earlier two mandamus issued by this court and the letter of Mr. Justice Venkatchaliah. In this wit petition, by an interim order dated 25-8-98 this Hon'ble Court desired to know as to whether the State Government has any intention to appoint a State Human Rights Commission or not'.

Then, in an order dated 9-9-98 this court reminded the State Government that this "Court earlier in cases of Uttarakhand and H. K. Maheshwari has sent the copies of their judgments, requesting the State Government to consider, constitution of a State Human Rights Commission in this State". This Hon'ble Court further observed 'we will also like to know as to what action was taken in that regard'. The State Government was directed 'to produce the entire records which must have been constructed after receiving the copies of the judgments referred to above in two cases". In the same order dated 9-9-98, the letter of Mr. Justice Venkatchaliah was quoted verbatim and then it was observed, 'on the adjourned date, we will also like to known, what action the State Government has taken in regard to the request made by the Chairperson of the National Human Rights Commission.'

Curiously, a counter affidavit was filed on behalf of the State Government in which no source of knowledge was disclosed, alleging that the State Government was not aware of the letter of Mr. Justice Venkatchaliah as it had not received the said letter. This court, in its order dated 14-9-98, took serious notice of the allegation in said counter affidavit and pointed out, that the letter sent by Chairperson of National Human Rights Commission was reproduced in the courts order dated 9-9-98. the Learned Advocate General was present in the Court Room on 24-9-98 who informed the court that in the next meeting of the cabinet, there was every likelihood of consideration of desirability of establishing a State Human Rights Commission. The Court, took notice of this statement and observed' we hope and trust that two mandamus issued by the court, earlier for consideration of constitution of State Human Rights Commission along with the letter of the Chairman of National Human Rights Commission dated 30-701998 quoted in extension in Para 6 of the courts order shall be considered by the Cabinet of the State. It is needless to clarify what the word "consider means".

On the next date, along with an affidavit dated 27-10-98, the State Government filed notification dated 26-10-1998, in which referring to the two earlier mandamus of this court, and the letter dated 30-7-98 of the Chairman, National Human Rights Commission, the State Government in purported exercise of its power under section 21 of the General Clauses Act, rescinded the Government notification dated 4-4-1996, which was issued under the Protection of Human Rights Act, 1993. It was height of defiance with impunity of the two mandamus issued by this Court.

The PUCL (UP Branch) filed an application dated 16-11-1998 in the writ petition No. 24962 of 1998, as the conduct of the then Cabinet was a gross contempt of this Court and prayed that this court may exercise its suo motto power under Article 215 of the Constitution of India to punish the then Chief Minister and his cabinet colleagues.

In the writ petition No. 24962 of 1998 of the PUCL UP branch judgment was received on 12-11-1999 but it was allowed by a Judgement dated January 12th, 2000 (just after one year) by which the notification dated 26-10-98 was quashed and a direction was issue to the State Government' to take expeditious steps within three months from today, for obtaining the recommendation of the Statutory Committee, constituted under section 22(1) of the Act and to proceed to make the appointment in term of Section 21(2) and (3) of the Act within three month from today'. However, in the same Judgement, this court observed: 'having regard to the peculiar facts and circumstances, we are of the view that no contempt at all was committed by the then Chief Minster and his cabinet colleagues'. Some strictures were however passed against the government for not taking the repeated request of this court seriously and the view expressed by Chairman of National Human Rights Commission.

More than one year has passed. The State Government is conveniently sleeping over the matter. Not only this, the State Government is consistently and deliberately defying this courts mandamus issued from time to time. The UP PUCL filed a contempt petition No. 1645 of 2000 in which a counter affidavit was directed to be filed by Secretary, Government of UP by the order dated 24-4-2000 within two weeks. On 15-5-2000, no counter affidavit was filed within two weeks. The counter affidavit was filed thereafter, in which a stand was taken that no contempt was made out. In the meantime Division Bench at Lucknow consisting of Hon'ble Mr. Justice S. H. A. Raza and Hon'ble Mr. Justice R.P. Nigam issued direction on 4-7-2000 in writ petition No. of 2000 (PUCL Vs. State of UP, and others) to know what action had been taken regarding the setting up of a State Human Rights Commission in pursuance of the earlier mandamus issued by the High Court. In view of this direction the PUCL moved an application to withdraw the contempt petition No. 1645 of 2000 by stating that it would pursue the matter at Lucknow. The writ petition at Lucknow has not been taken up thereafter as happens with most of the cases, pending in this court.

We are waiting this is anguish. It is extremely shocking that this court is silent even after the direction given by the Division Bench of Lucknow Bench on 4-7-2000.

We hope and trust that this court will not remain silent any more. Not constituting a State Human Rights Commission is a grossest violation of the Human Rights of the people of this State. In the objects and reasons of the Protection of Human Rights Act 1993, it is observed that 'there has been growing concern in the country and abroad about issues relating to Human Rights and having regard to changing "social realities and barging trends in the nature of crime and violence, the government came to the conclusion that the said Act. Might be enacted. There are petitions pending in this court, filed by the UP PUCL in which the reliefs have been claimed for fake encounters, custodial deaths and other violation of Human Rights. About 60% of the complaints in the National Human Rights Commission are from State of UP.
It is not only the power, but the Constitutional obligations of all the Hon'ble Judges of this High Court to grant relief for violation of Human Rights. Not establishing a State Human Rights Commission, as already submitted is grossest violation of their rights and sulling the image of this august institution. With regards, Yours Sincerely. -- Ravi Kiran Jain, Senior Advocate; K. K. Roy, Advocate, The Hon'ble Chief Justice and other Hon'ble Judges of High Court of Judicature at Allahabad

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JJ Rafat Alam and M Chaudhary ruled on August 13 2002:
"It is contended by Sri Kannabiran, learned Senior Counsel for the petitioner that in view of Section 21 of the Protection of Human Rights Act 1993, it is obligatory on the State Government to constitute State Human Rights Commission. He further placed definition of 'human rights' given in the definition clause of the Act. He submitted that earlier on three occasions vide its judgements in the cases of Uttarakhand Sangharsh Samiti Vs State of UP, reported in 1996 (1) UPLBEC 461; HK Maheshwari Vs State of UP, reported 1996 JIC 1034; and PUCL Vs State of UP, reported in 2000 (1) AWC 729, this court directed the State Government to constitute the State Human Rights Commission but no steps have been taken in this regard. He further placed reliance on paras 18 & 19 of the Judgement of the Apex court reported in AIR 1987 SC (illegible) and submitted that this court even its writ jurisdiction can issue Mandamus for enforcing its order.

Learned Additional Advocate General prays and is allowed two weeks time seek instruction and file counter affidavit stating therein as to what steps have been taken by the State Government pursuant to the direction of this Court for the constitution of State Human Rights Commission. It should also be stated that in the counter affidavit as to within what time the State Government is likely to constitute the State Human Rights Commission. Rejoinder affidavit, if any, may be filed within a week thereafter.

List the matter on 3. 9. 2002 as requested by the learned Additional Advocate General"

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