Asian Centre For Human Rights vs National Human Rights Commission
2011 Latest Caselaw 3559 Del

            *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.

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

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

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.

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..