High Court Direction to Constitute State Human Rights in Uttar Pradesh
By K. K. Roy
UP-PUCL, Dec 2001
In a landmark Judgement, the Allahabad High Court has issued mandamus, directing the State of UP to complete the formality to constitute a State Human Rights Commission within three months. It also directed the State Government to specify for each district, a Court of Session to be the Human Rights Court in terms of Section 30 of the Protection of Human Rights Act. The judgement was delivered on 12.1.2000.
A writ petition was filed by the People's Union for Civil Liberties (PUCL), UP branch, which was heard by a division bench consisting of BK. Roy and RK Singh JJ. Senior advocate and President PUCL, UP State, Shri Ravi Kiran Jain argued the writ petition. The writ petition was filed on the ground that there is total negation of Human Right values in the State of Uttar Pradesh. The then Chief minister Kalyan Singh has openly said in a Press Conference that a criminal should have no Human Rights, he should either be in Jail or dead. There have been incidents of 156 encounter deaths in the garb of eliminating criminals. According to the annual report of National Human Rights Commission for 1996-97, 8497 complaints are received from UP out of a total for 208333 complaints from all over the country. The State Human Rights Commissions have already been set up in West Bengal, Himachal Pradesh, Assam, Punjab, and Tamil Nadu. There are already two Mandamus issued by the Allahabad High Court in the case of Uttarakhand Sangharsh Samiti State of UP, Hari Krishna Maheswari asking the state of UP to constitute State Human Rights Commission and Human Rights Courts. The Government of Uttar Pradesh had on 4th April 1996 issued a notification under section 21(1) of the protection of Human Right Act, 1993, for the setting up of a state Human Rights Commission. The chairperson of the NHRC had also written a letter, dated 30 July 1998, requesting the Chief Minister to make a nomination of the Chair person and members by issuing appropriate notification under section 21(2) of the protection of Human Rights Act.
In the counter affidavit, filed by the state of UP, it was replied that the state of UP attaches utmost importance to Human Rights and there is already a Human Rights cell, constituted in the home department and in police organisation under the supervision of Director General of Police. An officer of the rank of A.D.G. is incharge. The State Commission in Uttar Pradesh Govt. has already constituted minority commission, backward classes commission and scheduled caste, scheduled tribes commission to protect the interest of weaker sections of society. Sections 58 and 176 of the criminal Procedure Code, also give ample power to intervene in such matters; so the state has decided not to constitute 'State Human Rights Commission' at this stage. Under the provisions of Protection of Human Rights Act, it is not mandatory to constitute it.
On 9/9/98, during the course of arguments, the court had directed the state of UP to produce the entire record to know as to what action it had taken in regard to the direction made by the court earlier in the two cases (Uttarakhand and H.K. Mahaesheari) on 20/11/98, the Advocate General filed documents in a sealed cover but indicated that the State claims privilege and protection of the records. The records can not be looked into in view of Article 163(3) of the constitution and are also privileged documents under section 123 or the Evidence Act. Later, an affidavit of special secretary (Home) filed by the State of UP, informing the Court that the State cabinet had met on 26/10/98 and after considering the desirability to constitute a State Human Rights Commission, found it not necessary to constitute it. It rescinded the earlier notification no. 2254KHA/6-466 dated April 4, 1996.
On 16/11/98, the petitioner (PUCL) flied a detailed application under Article 215 of the Constitution of India for taking suo mote action of contempt of the court against Sri Kalyan Singh, the then Chief Minister and his Cabinet Colleagues. It was stated in the affidavit that Kalyan Singh has given a free hand to the police to kill persons in the name of eliminating criminals and he does not constitute state Human Rights commission for extraneous reasons, deliberately flouting two mandamuses of this court in two cases. In spite or the order or the court the state is not producing the records under the cover or Article 163(3) of the Constitution. Grossest form of Human Rights violation are taking place in Uttar Pradesh which might not have been found in any democratic society at any point of time in human history. The Chief Minister openly announced on the floor of the Assembly on 29/6/98, 'Criminals' had no rights. The incidence of fake encounters, custodial deaths, custodial torture have multiplied in his regime. The Court in its judgement stated that the state of UP was a party to the 'Uttarakhand' and 'Maheswari' cases and the request made there by this court could not be taken lightly. It did not go before the Supreme Court against it. It can not lightly brush aside or ignore the mandamus already issued.
Human Rights Jurisprudence is of recent growth. On the spectrum of Human Rights, which are the very recent essence of human life, there are manifold subjects enumerated in list Il/Ill or the constitution. Some of the general topics relate to human existence, like freedom of religion, Right of privacy and information legal aid, Clean and wholesome Environment, Custodial violence, Torture, Terrorism, Gangsterism, Prisoners right/prison justice, Capital Punishment, Atrocities against women, Child abuse, Right of Child, Atrocities on scheduled cast and scheduled Tribes, Right of Child of Child, Rights 6f workers, Right of minorities, Right of Juveniles, etc. The court has also rejected the plea of privilege claimed under Article 163(3) or the constitution in public interest and said that the facts and circumstances including the public interest involved in the constitution of SHRC, compels us to look into the government record. The court expressed its anguish and said, after perusal, we find that unfortunately the records have not been produced in their entirety in as much as we do not find on record as to how the matter was considered by the Cabinet and what had happened allegedly on 22.10.'98 in the Cabinet Meeting. The State can not act as an ordinary litigant. The state has nullified the earlier notification i.e. at arbitrary manner. The State Government should have taken the repeated requests of this Court seriously and the views expressed by the Chairperson of the NHRC not lightly and refused to constitute the SHRC. The Court said, "other ground namely financial crunch also does not appeal to us." -- K.K. Roy, UP-PUCL