- (1.) THE petitioner has come up to this Court for commanding Respondent No. 1 the State of U. P. to (i) constitute a State Human Rights Commission (hereinafter referred to as S. H. R. C.) under S. 21 of the Protection of Human Rights Act, 1994 (hereinafter referred to as the Act) and (ii) create Human Rights Courts at district level under S. 30 of the Act.
(2.) THE case of the petitioner is to this effect:- THE petitioner is a non-political organisation of such citizens of India who are committed to promote and protect, inter alia, human rights; a copy of its aims and object is being filed as Annexure-1; after recording his satisfaction that the circumstances existed for an immediate action for protection of human rights and to achieve the objects/purpose as contained in S. 2 (1) (d) read with preamble the President of India promulgated Protection of Human Rights Ordinance, 1993 (Ordinance No. 30 of 1993) on 28-9-1993 which was later replaced by the Act; S. 3 of the Act provides that the Central Government shall constitute a body to be known as the National Human Rights Commission (hereinafter referred to as N. H. R. C.) pursuant to which Respondent No. 3 was constituted; S. 21 of the Act provides that the State Government may constitute a body to be known as S. H. R. C. Respondent No. 3 started functioning immediately, and receiving complaints in regard to custodial deaths, rapes, fake encounters and other police excess; this Court passed direction for consideration by the State of U. P. for establishing a S. H. R. C. on the ground that the legislative intent of the Parliament is being ignored for long vide its Judgment and Order dated 9-2-1996 in C. M. W. P. No. 32984 of 1994 Uttarakhand Sangharsh Samiti v. State of U. P. ; the Governor of U. P. , when the State was under President's Rule, issued a Notification on 4-4-1996 under S. 21 (1) of the Act for constitution of S. H. R. C. realising the extremely grim condition of law and order problem in the State; the former C. J. I. Sri R. N. Misra, after he became a Member of Rajya Sabha, revealed on 22-7-1998 on the floor of the Rajya Sabha of the fact aforementioned which is evident from the report published in the Newspaper "times of India" 23-7-1998 Edition appended as Annexure-2; Respondent No. 3 in its Annual Report 1996-97 stated that "a country of the size and diversity of India needs Human Right Commission at the State level, the reasons are obvious, the redressal of grievances must be swift and inexpensive, the message of human rights must reach the grass-root level in the languages of the people of the country, the federal character of our Constitution must be respected, the nation-wide challenge needs an army of activists in each State and in each district, if societal and attitudinal changes are to be brought about"; State Human Rights Commissions have been established in the States of West Bengal, Himachal Pradesh, Assam, Punjab and Tamil Nadu; Respondent No. 3 had received 8497 complaints from our State out of total number of 20833 in 1996-97; Sri Kalyan Singh the present Chief Minister had openly said in a press conference and in his interview with Sri Rajesh Joshi, Special Correspondent of "out Look" that a criminal should have no human rights, he should either be in jail or dead; according to press report as many as 156 criminals have been killed in encounter with the police; it is common knowledge that the State is also prone to communal disturbances about which this Court should take judicial notice; the Parliamentary Affairs Minister Sri Hukum Singh on 23-7-1998 made a statement on the floor of the Assembly that the government has taken a decision that there is no need of constitution of a State Human Rights Commission for the reasons mentioned in his speech and hence this writ petition. This writ petition came up for consideration before one of us (Binod Kumar Roy, J.) and Hon'ble Mr. Justice R. K. Mahajan, since retired, on 10-8-98. After submissions were made by Sri Ravi Kiran Jain, the learned Senior Counsel appearing on behalf of the petitioner, time was granted to Sri H. R. Misra, learned Standing Counsel with an observation, inter alia, that the writ petition is likely to be disposed of at the stage of admission itself and that a copy of the counter-affidavit, if any, must be served on the petitioner by 21-8-98. Counter-affidavit was filed on behalf of Respondent Nos. 1 and 2, sworn by Secretary (Home), Government of U. P. on 21-8-98. It was stated, inter alia, therein that the State attaches utmost importance to the human rights and a Human Right Cell has been constituted (i) in the Home Department, and (ii) in the Police Organisation under the direct supervision of D. G. P. , U. P. and an officer of the rank of A. D. G. is its incharge; the State Government is endeavouring to protect the fundamental rights and human rights of the person and is taking all precautions to ensure that no violation of human rights or abatement thereof or negligence in the prevention of such violation by any one should take place; the State is taking all actions necessary to prevent the abuse, violation, abatement of human rights as well as any negligence in the prevention of such violation; it has already constituted Minority Commission, Backward Caste Commission and Schedule Caste Schedule Tribe Commission; any violation of human rights or abatement thereof or negligence in the prevention of such violation with regards to women, minorities, backward castes, scheduled castes and scheduled tribes are being enquired into, intervened, investigated upon and reviewed; the factors and safe guards provided by or under the Constitution or any law for the time being in force and for protection of rights are being looked into by the respective Commissions; it is mandatory for the officer incharge of any Police Station to report about every arrest to concerned District Magistrate, who can make an enquiry with regard to any arrest with or without warrant; S. 58 of the Code of Criminal Procedure has sufficient checks on any violation of human rights in the police custody; under S. 176 of the Code of Criminal Procedure whenever any death occurs in police custody or a person dies in a police encounter a Magisterial enquiry can be ordered to bring about correct facts; whenever any report is made under the aforementioned sections the Magistrate takes all necessary action in accordance with law to safeguard the person in police custody and ensures that no violation of any fundamental right and human right of the person takes place; enlightened citizens keep invoking these provisions to ensure that the human rights are not violated by the police; and in view of the aforementioned facts and circumstances on 16-6-98 the State decided not to constitute the State Human Rights Commission at this stage, the constitution of which is also not mandatory as the Act has left a decision to be taken by the State Government in this regard; the figures as obtained from the Annual Report 1996-97 of the National Human Rights Commission showed that 2900 were the number of total cases registered during 1995-96 and 8728 during 1996-97; the State Government attaches utmost importance to maintenance of law and order and the contention that they are extremely grim is denied; the Notification dated April 4, 1996 was issued by the State Government with a view to honour the suggestions made by this Court during the Presidential Rule and the contention that it was issued on account of 'extremely grim law and order situation' is not correct; it would be wrong to conclude that only S. H. R. C. could address to the public grievances; the popular government would directly handle all matters relating to violation of human rights, if any, and through the legislature, which is the supreme body before which matters relating to human rights violation are brought up and debated; besides Judicial Officers are competent to take cognizance where someone has suffered due to wrongful act; rapid rise in the number of complaints received by the N. H. R. C. is a pointer of increasing awareness regarding human rights as well as its activities; N. H. R. C. is based in Delhi, adjacent to the State of U. P. which is the most populous and its citizen find it convenient to address the grievances to it due to its proximity, which is the prime factor responsible for origin of maximum complaints; as per Annual Report 1996-97 N. H. R. C. U. P. accounts for 42. 17% of total cases out of which 8048 cases (42. 8%) were dismissed in limine during 1996-97, out of 2272 cases disposed of with directions U. P. accounted for 56. 99% and out of 6503 cases considered/admitted for disposal during 1996-97 U. P. accounted for 40. 38%; the statements made in Paragraphs 37, 38 and 39 (pertaining to the statements made in a press conference and in the interview by the Special Correspondent Out Look) are false and frivolous and are denied and it is submitted that the statements should be read with reference to context "clamping down the illegal activities of criminals in order to maintain "law and order" and emphasizes that the police should not give up its fight against offenders of law and human rights and in safeguarding the law abiding citizens; there is complete communal harmony at present, even the long standing Shia-Sunni dispute at Lucknow has been resolved amicably recently, the direction of the State Government to the police is to improve law and order situation by clamping down heavily on the criminals and to make the society a safe place for law abiding citizen and in pursuance of this objective stringent measures have been taken by the police; in some hot pursuit there have been exchange of fire between the police and the criminals in which at times police men and/or criminals fall victim which are commonly termed as 'encounter', though it is well within the ambit of law for the police to fire in exercise of its right of self-defence and to term this as extra-judicial killings of the criminal is distortion of fact.
(3.) TO the aforementioned Counter-Affidavit a Rejoinder was filed by the Petitioner stating following facts:- There has been concealment of a very material fact that the Chairperson of National Human Rights Commission wrote a letter on 30-7-1998 (appended as Annexure-RA1) to the Respondent No. 2 referring to the Notification for setting up of a State Human Rights Commission after taking into consideration of his suggestions and the view of the Division Bench of this Court telling that a logical sequence would have been a final Notification under Section 21 (2) of the Act, the letter further indicated that substantial percentage of the complaints received in his office pertain to this State and a State Commission will provide quicker access to remedy to the victims of human rights violation and will obviate the need for aggrieved parties to approach Courts and burden the already heavy docket of the Courts of law; yet another Division Bench of this Court in Hari Krishan Maheswari alias Hari Maheshwari v. State U. P. , 1996 JLC 1034, had made request to the State Government to constitute a State Human Rights Commission and Human Rights Courts as provided under the Act as early as possible; in a matter like this in which extremely serious allegations of violation of human rights were made against him, the Chief Minister himself should have filed his counter-affidavit; in regard to the press reports the petitioner shall place the clipping of the newspapers and news magazine containing the reports; according to the press report the greatest form of human rights violations are occurring in U. P. these days, like of which might not have been found in any democratic country at any point of time in the human history; in D. K. Basu v. State of West Bengal decided by the Supreme Court on 18-12-96 (reported in AIR 1997 SC 610), it took judicial notice of the fact that custodial torture could be ascertained by reading morning newspapers and the High Court may also take notice of the relevant reports through press; despite request of National Human Rights Commission and by this Court through its two Division Bench judgments the decision of the State Government not to constitute a State Human Rights Commission shows that it has no regard to human rights and no concept in regard to what the human rights are and why such a Commission is required, and its disregard in that requires passing of a very severe stricture by this Court against the present Government. On 25-8-1998 the case was heard further by the earlier Division Bench, as stated above comprising one of us. The learned Advocate General came up with a prayer for adjournment on the ground that some new facts have been stated in the Petitioner's Rejoinder. The Bench repeatedly asked as to whether the State Government has any real intention to constitute a State Human Rights Commission or not in regard to which the learned Advocate General took up a stand that this will require some further consultation with the Government. The Bench also reiterated that the Court intends to dispose of this writ petition at the stage of admission itself.;