*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th July, 2011
+ W.P.(C) 8102/2007
ASIAN CENTRE FOR HUMAN RIGHTS ..... Petitioner
Through: Mr. Nitesh Kumar Singh, Adv.
versus
NATIONAL HUMAN RIGHTS COMMISSION ..... Respondent
Through: Mr. B.S.Gautham, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Not necessary
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The challenge in this petition is to the order dated 3 rd July, 2007 of the National Human Rights Commission (NHRC) closing the complaint made by the petitioner of violation of Human Rights by members of Armed Forces i.e. personnel of 14 Assam Rifles stationed at Kangpokpi during 6th to 9th February, 2005.
W.P.(C) 8102/2007 Page 1 of 5
2. Notice of the petition was issued. Though the records of the NHRC were requisitioned but were unavailable and on 9th September, 2010 it was ordered that this Court will proceed on the basis of the documents annexed by the petitioner.
3. The counsel for the petitioner has impugned the order of the NHRC by inviting attention to the report dated 4th August, 2005 of the Addl. Director General of Police filed at page 41 of the paper book where the version of the affected persons of violation of human rights is recorded. It was nevertheless recorded that no complaint had been lodged by any of the affected persons.
4. Attention of the counsel for the petitioner has been invited to Section 19 of the Protection of Human Rights Act, 1993 which is notwithstanding anything contained in the Act and provides a special procedure for dealing with the complaints of violation of human rights by members of the Armed Forces. The NHRC on such complaint is required to seek a report from the Central Government and after receipt of the said report to take a decision whether, to drop the complaint or make W.P.(C) 8102/2007 Page 2 of 5 recommendations to the Central Government and for the Central Govt. to inform the NHRC of action taken on the recommendations. The procedure so prescribed does not provide for calling for a report from the DGP or acting on the same. The NHRC, on the basis of the report with material submitted by Govt. of India, Ministry of Defence before it has expressed satisfaction that no case of harassment and torture of detained persons or of violation of human rights by personnel of 14 Assam Rifles was made out. It has thus been enquired from the counsel for the petitioner as to how the procedure followed by the NHRC in the present case can be said to be in violation of Section 19 which the counsel for the petitioner also does not controvert is applicable, so as to call for a judicial review thereof.
5. The counsel for the petitioner has contended that Section 19(1)(a) uses the word "may" and thus it is not mandatory for the NHRC to call for the report from the Central Government.
6. I am unable to agree. The word "may" has to be read along with use of the word "shall" in sub-Section (1). Sub Section (1) mandates the NHRC to follow the procedure as prescribed in sub Clauses (a) & (b). As W.P.(C) 8102/2007 Page 3 of 5 aforesaid, Section 19 begins with a non obstante clause. A reading of the entire Section together leaves no doubt that there is no discretion in the NHRC in the case of complaints against members of the Armed Forces but to call for and proceed as per the report of the Central Government and in no other fashion.
7. The NHRC in the impugned order has inter alia recorded that as per the report, there was sufficient cause for questioning of the subject individuals by the troops, the said persons were not detained unnecessarily; they were not subjected to any harassment/physical torture and the allegations of the petitioner about illegal arrest and brutal torture were totally false and baseless. The report was on the basis of the inquires from the Police Authorities, Village Headman and parents and relatives of the concerned individuals and the individuals themselves. It was also reported that each of the persons with respect to whom complaint was made had signed a copy of „No Claim‟ and „No Harassment‟ letter. Accordingly NHRC decided to not proceed with the complaint.
W.P.(C) 8102/2007 Page 4 of 5
8. I am unable to find any error requiring interference in the order of the NHRC.
9. There is no merit in the petition; the same is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) JULY 26, 2011 pp..
W.P.(C) 8102/2007 Page 5 of 5