Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.129 OF 2012

EXTRA JUDICIAL EXECUTION VICTIM FAMILIES

ASSOCIATION (EEVFAM) AND ANOTHER PETITIONER(S)

VERSUS

UNION OF INDIA & ANOTHER RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO.445 OF 2012

SURESH SINGH PETITIONER(S)

VERSUS

UNION OF INDIA & ANOTHER RESPONDENT(S)

O R D E R

These two writ petitions, each filed under Article 32 of the

Constitution of India, raise some disquieting issues pertaining to the

State of Manipur. In writ petition (criminal) No.129 of 2012, it is stated

that, over the years, a large number of people, Indian citizens, have

been killed by the Manipur Police and other security forces while they

were in custody or in stage-managed encounters or in ways broadly

termed as ‘extra-judicial executions’. In writ petition (civil) No.445 of

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Page 2 2012, it is stated that for a very long time, the State of Manipur is

declared as “disturbed area” and is put under the Armed Forces

(Special Powers) Act, 1958, subverting the civil rights of the citizens of

the State and making it possible for the security forces to kill innocent

persons with impunity.

In this order, we deal with the first writ petition, i.e., writ petition

(criminal) No.129/2012.

In this writ petition it is stated that during the period May, 1979 to

May, 2012, 1528 people were killed in Manipur in extra-judicial

execution. The statement is mainly based on a memorandum prepared

by ‘Civil Society Coalition on Human Rights in Manipur and the UN’ and

submitted to one Christof Heyns, Special Rapporteur on extrajudicial,

summary or arbitrary executions, Mission to India, 19-30 March, 2012.

The Memorandum compiles the list of 1528 people allegedly killed

unlawfully by the State Police or the security forces. The writ petitioners

later on filed “Compilation 1” and “Compilation 2”. In “Compilation 1”

details are given of ten (10) cases relating to the killings of eleven (11)

persons (out of the list of 1528); in “Compilation 2”, similarly details are

given of thirteen (13) cases in which altogether seventeen (17) persons

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Page 3 (out of the list of 1528) are alleged to have been killed in extra judicial

executions.

A counter affidavit is filed on behalf of the State of Manipur. In

the counter affidavit there is not only a complete denial of the

allegations made in the writ petition but there also seems to be an

attempt to forestall any examination of the matter by this Court. The

plea is taken that the National Human Rights Commission (NHRC) is

the proper authority to monitor the cases referred to in the writ petition.

It is stated that in regard to all the ten (10) cases highlighted in

“Compilation 1” filed by the petitioners, reports have been submitted to it

and in none of those cases the NHRC has recorded any finding of

violation of human rights. It is stated that the occasion for this Court to

examine those cases would arise only if it holds that the NHRC had

failed to perform its statutory functions in safeguarding the human rights

of the people in the State. This Court should not examine this matter

directly but should only ask the NHRC to indicate the status of the cases

listed and highlighted in the writ petition. We are unable even to follow

such a plea. The course suggested by the State will completely

dissipate the vigour and vitality of Article 32 of the Constitution. Article

21 coupled with Article 32 of the Constitution provides the finest

guarantee and the most effective protection for the most precious of all

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Page 4 rights, namely, the right to life and personal liberty of every person. Any

indication of the violation of the right to life or personal liberty would put

all the faculties of this Court at high alert to find out the truth and in case

the Court finds that there has, in fact, been violation of the right to life

and personal liberty of any person, it would be the Court’s bounden duty

to step-in to protect those rights against the unlawful onslaught by the

State. We, therefore, see no reason not to examine the matter directly

but only vicariously and second-hand, through the agency of the NHRC.

A reference is next made in the counter affidavit to an appeal

pending before this Court against the judgment of the Bombay High

Court and a writ petition, also pending before this Court, filed by the

State of Gujarat on the subject of fake encounters and it is stated that

this case should be tagged with those other two cases to be heard

together. We fail to see any relevance of the two cases referred to in the

counter affidavit and, in our view, the plea that these two writ petitions

should only be heard along with those two cases is meant to detract

from consideration the grave issues raised in the writ petition.

It is thirdly stated in the counter affidavit that the State of

Manipur is faced with the menace of insurgency for many years and

details are given of policemen and civilians killed and injured by the

insurgents. There are about 30 extremist organizations in the State out

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Page 5 of which six are very powerful and they are armed with sophisticated

weapons. Their aim and object is to secede from the Republic of India

and to form an independent State of Manipur. For realization of their

objective they have been indulging in violent activities, including killing

of civilians and members of security forces. It is stated in the counter

affidavit that during the period 2000 to October, 2012, 105 policemen,

260 security forces personnel, and 1214 civilians were killed; the

number of injured during the same period is 178 for the policemen, 466

for members of security forces and 1173 for civilians.

There is no denying that Manipur is facing the grave threat of

insurgency. It is also clear that a number of the insurgent groups are

operating there, some of which are heavily armed. These groups

indulge in heinous crimes like extortion and killing of people to establish

their hegemony. It is also evident from the counter affidavit filed by the

State that a number of police personnel and members of security forces

have laid down their lives or received serious injuries in fighting against

insurgency. But, citing the number of the policemen and the security

forces personnel and the civilians killed and injured at the hands of the

insurgents does not really answer the issues raised by the writ

petitioners.

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Page 6 In People’s Union for Civil Liberties v. Union of India and

another

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, this Court earlier dealt with a similar issue from Manipur itself.

In that case, it was alleged that two persons along with others were

seized by the police and taken in a truck to a distant place and shot

there. In an inquiry by the District and Sessions Judge, Manipur (West),

held on the direction of this Court, the allegation was found to be

correct. In that case, dealing with question of the right to life in a

situation where the State was infested with terrorism and insurgency,

this Court in paragraphs 5 and 6 of the judgment observed as follows:

“5. It is submitted by Ms S. Janani, the learned counsel for the

State of Manipur, that Manipur is a disturbed area, that there

are several terrorist groups operating in the State, that Hamar

Peoples' Convention is one of such terrorist organizations, that

they have been indulging in a number of crimes affecting the

public order — indeed, affecting the security of the State. It is

submitted that there have been regular encounters and

exchange of fire between police and terrorists on a number of

occasions. A number of citizens have suffered at the hands of

terrorists and many people have been killed. The situation is

not a normal one. Information was received by the police that

terrorists were gathering in the house on that night and on the

basis of that information, police conducted the raid. The

raiding party was fortunate that the people inside the house

including the deceased did not notice the police, in which case

the police would have suffered serious casualties. The police

party was successful in surprising the terrorists. There was

exchange of fire resulting in the death of the terrorists.

6. In view of the fact that we have accepted the finding

recorded by the learned District and Sessions Judge, it is not

possible to accede to the contention of Ms Janani insofar as

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(1997) 3 SCC 433

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Page 7 the manner in which the incident had taken place. It is true that

Manipur is a disturbed area, that there appears to be a good

amount of terrorist activity affecting public order and, may be,

even security of that State. It may also be that under these

conditions, certain additional and unusual powers have to be

given to the police to deal with terrorism. It may be necessary

to fight terrorism with a strong hand which may involve vesting

of good amount of discretion in the police officers or other

paramilitary forces engaged in fighting them. If the version of

the police with respect to the incident in question were true,

there could have been no question of any interference by the

court. Nobody can say that the police should wait till they are

shot at. It is for the force on the spot to decide when to act,

how to act and where to act. It is not for the court to say how

the terrorists should be fought. We cannot be blind to the fact

that even after fifty years of our independence, our territorial

integrity is not fully secure. There are several types of

separatist and terrorist activities in several parts of the country.

They have to be subdued. Whether they should be fought

politically or be dealt with by force is a matter of policy for the

Government to determine. The courts may not be the

appropriate forum to determine those questions. All this is

beyond dispute. But the present case appears to be one

where two persons along with some others were just

seized from a hut, taken to a long distance away in a truck

and shot there. This type of activity cannot certainly be

countenanced by the courts even in the case of disturbed

areas. If the police had information that terrorists were

gathering at a particular place and if they had surprised them

and arrested them, the proper course for them was to deal

with them according to law. “Administrative liquidation” was

certainly not a course open to them.”

(emphasis added)

We respectfully reiterate what was earlier said by the Court in

People’s Union for Civil Liberties.

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Page 8 In 1997, in the Peoples’ Union for Civil Liberties this Court,

dealing with the case of killing of two persons in Manipur had cautioned

the State against “Administrative liquidation”. But, after 15 years in this

case, we are faced with similar allegations on a much larger scale.

For this Court, the life of a policeman or a member of the

security forces is no less precious and valuable than any other person.

The lives lost in the fight against terrorism and insurgency are indeed

the most grievous loss. But to the State it is not open to cite the

numbers of policemen and security forces killed to justify custodial

death, fake encounter or what this Court had called “Administrative

liquidation”. It is simply not permitted by the Constitution. And in a

situation where the Court finds a person’s rights, specially the right to

life under assault by the State or the agencies of the State, it must step-

in and stand with the individual and prohibit the State or its agencies

from violating the rights guaranteed under the Constitution. That is the

role of this Court and it would perform it under all circumstances. We,

thus, find that the third plea raised in the counter affidavit is equally

without substance.

Lastly, the counter affidavit, and the Supplementary Counter

Affidavit filed by the State give the State’s version of the 10 cases

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Page 9 highlighted in the Compilation 1, filed by the petitioners. But on that we

would not like to make any comment at this stage.

The Union of India has also filed a separate counter affidavit. It

is a more responsible affidavit in that it does not evade the issues nor

does it try to dissuade the Court from examining the cases of alleged

extra-judicial executions brought to its notice by the writ petitioners. In

the counter affidavit filed by the Union, first a reference is made to

different legal provisions (Section 146 and Sections 129 to 132 of the

Criminal Procedure Code, Sections 99 to 106 in Chapter IV of the Indian

Penal Code and Section 4 of the Armed Forces (Special Powers) Act,

1959) and it is contended that subject to the conditions stipulated in

those provisions, killing of a person by a police officer or a member of

the armed forces may not amount to an offence and may be justified in

law. It is stated in the counter affidavit that all the cases listed and/or

highlighted in the writ petition and described as extra-judicial executions

are cases of persons who died during counter-insurgency operations or

in performance of other lawful duties by the police and the personnel of

the armed forces. It is emphasized that in most of the cases the so-

called victims might have been killed in the lawful exercise of the

powers and/or in discharge of official duties by the police and the armed

forces personnel. It is further said that “public order” and, by

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Page 10 implication, the maintenance of “law and order” are primarily State

subjects and the role of the Central Government in deploying the armed

forces personnel in the State is only supportive in aid of the law and

order machinery of the State. The State of Manipur has the primary

duty to deal with the issue of investigation in relevant cases, except

where provided to the contrary in any other law for the time being in

force. It is stated that the “very gloomy picture” of the State of Manipur

sought to be presented by the writ petitioners is incorrect and

misleading. It is asserted that Manipur is fully and completely integrated

with the rest of the country and it is pointed out that in the 1990

elections the voting turnout for the 60 assembly seats in the State was

89.95%. Similarly, during the recent 2012 assembly elections, the voting

turnout was 83.24%. It is added that the voting percentage in Manipur is

amongst the highest in the country as a whole and it clearly shows that

the people of Manipur have taken active participation in the elections

showing their full faith in the Constitution and the constitutional process.

Coming to the issue of insurgency, it is stated in the counter

affidavit as under:

“It is only a handful of disgruntled elements who have

formed associations/ groups that indulge in militant and

unlawful activities in order to retain their influence and

hegemony in the society. These groups also challenge the

sovereignty and integrity of the country by following aims

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Page 11 and objectives which are secessionist in nature. It is

emphasized that only around 1500 militants are holding a

population of 23 lakhs in Manipur to ransom and keeping

the people in constant fear. The root cause of militancy in

Manipur is the constant endeavour of these insurgent

groups so that they can continue to extort money and the

leaders of such groups can continue to lead luxurious life in

foreign countries. The tribal divide and factions in the

society and the unemployed youth are being exploited by

these militant outfits to fuel tension in the society.”

It is further stated in paragraph 13 of the counter affidavit as

under:

“It may also be submitted that the ethnic rivalries amongst

the different tribal groups viz. Meities, Kukis and Nagas are

deep-rooted and the militant groups fervently advance their

ideologies by taking advantage of the porous international

border with Myanmar which is 256 km long, heavily forested

and contains some of the most difficult terrain. The border

area is inhabited by the same tribes on either side. These

tribes have family relations and for social interactions a free

movement regime for the locals to move up to 16 kms on

both sides is permitted. Taking advantage of this situation

the militant outfits utilize the other side of the border (which

is beyond the jurisdiction of the Indian Armed Forces) for

conveniently conducting their operations of extortions/

kidnapping/ killing/ looting and ambushing the security

forces.”

The counter affidavit goes on to explain that the operations of

not only the State Police but the different security forces under the

control of the Central Government are being strictly monitored and kept

within the parameters set out by the different laws under which those

forces operate. It is stated that different statutory agencies acting as

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Page 12 watchdog ensure that the armed forces do not overstep the

Constitutional or the legal limits in carrying out the anti-insurgency

operations.

Ms. Guruswamy, the learned amicus has, on the other hand,

presented before us tables and charts showing the inconsistencies in

the materials produced by the State of Manipur itself concerning the 10

cases highlighted in “Compilation 1” filed by the petitioners. She also

submitted that though enquiries were purported to be held by an

Executive Magistrate in the 10 cases described in “Compilation 1”, in

none of those cases the kin of the victims came before the Magistrate to

give their statements even though they were approaching the court,

complaining that the victims were killed in fake encounters. She further

pointed out that in some of the cases even the police/security forces

personnel who were engaged in the killings did not turn up, despite

summons issued by the Magistrate, to give their version of the

occurrence and the Magistrate closed the enquiry, recording that there

was nothing to indicate that the victims were killed unlawfully. In some

cases the Magistrate, even while recording the finding that the case did

not appear to be one of fake encounter made the concluding

observation that it would be helpful to sensitize the police/armed forces

in human rights. She submitted that the so-called enquiries held by the

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Page 13 Magistrate were wholly unsatisfactory and no reliance could be placed

on the findings recorded in those enquiries.

Apart from the criticisms made by the amicus against the

Magisterial enquiries held in the 10 cases of “Compilation 1” it is

important to note that a number of cases cited by the petitioners had

gone to the Gauhati High Court and on the direction of the High Court,

inquires, of a judicial nature, were made into the killings of (1) Azad

Khan, age 12 years (according to the State, 15 years) (from

“Compilation 1”), (2)Nongmaithem Michael Singh, age 32 years, (3)

Ningombam Gopal Singh, age 39 years, (4) (i) Salam Gurung alias

Jingo, age 24 years, (ii) Soubam Baocha alias Shachinta, age 24 years

(5) (i) Mutum Herojit Singh, age 28 years (ii) Mutum Rajen, age 22

years (6) Ngangbam Naoba alias Phulchand Singh, age 27 years (7)

Sapam Gitachandra Singh, age 22 years (8) (i) Kabrambam Premjit

Singh, (ii) Elangbam Kanto Singh (9) Longjam Uttamkumar Singh, age

34 years (10) Loitongbam Satish @ Tomba Singh, age 34 years (11)

Thockhom Inao @ Herojit Singh, age 31 years, (12) Khumallambam

Debeshower Singh (13) (i) Km. Yumnam Robita Devi (ii) Angom

Romajitn Singh (14) Thoudem Shantikumar Singh (all from “Compilation

2”).

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Page 14 In all those cases the judicial inquiry found that the victims were

not members of any insurgent or unlawful groups and they were killed

by the police or security forces in cold blood and stage-managed

encounters.

It is stated on behalf of the petitioners that though it was

established in the judicial enquiry that those persons were victims of

extra-judicial executions, the High Court simply directed for payment of

monetary compensation to the kins of the victims. Learned Counsel for

the petitioners submitted that payment of rupees two to four lakhs for

killing a person from funds that are not subjected to any audit, instead of

any accountability for cold blooded murder, perfectly suits the security

forces and they only get encouraged to carry out further killings with

impunity.

On a careful consideration of the averments made in the writ

petition and the counter affidavits filed by the respondents and on

hearing Ms Guruswamy, the amicus, Mr. Gonsalves the learned counsel

appearing for the writ petitioners, Mr. Kuhad, the Additional Solicitor

General appearing for the Union of India, Mr. Ranjit Kumar, senior

advocate appearing for the State of Manipur and Ms. Shobha, advocate

appearing for the NHRC, we find it impossible to overlook the matter

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Page 15 without further investigation. We are clearly of the view that this matter

requires further careful and deeper consideration.

The writ petitioners make the prayer to constitute a Special

Investigation Team comprising police officers from outside Manipur to

investigate the cases of unlawful killings listed in the writ petition and to

prosecute the alleged offenders but at this stage we are not inclined to

appoint any Special investigation Team or to direct any investigation

under the Code of Criminal Procedure. Instead, we would first like to be

fully satisfied about the truth of the allegations concerning the cases

cited by the writ petitioners. To that end, we propose to appoint a high

powered commission that would tell us the correct facts in regard to the

killings of victims in the cases cited by the petitioners. We, accordingly,

constitute a three-member commission as under:

1.Mr. Justice N. Santosh Hegde, a former Judge of the

Supreme Court of India, as Chairperson

2.Mr. J. M. Lyngdoh, former Chief Election

Commissioner, as Member

3.Mr. Ajay Kumar Singh, former DGP and IGP,

Karnataka.

We request the Commission to make a thorough enquiry in the

first six cases as detailed in “Compilation 1”, filed by the petitioners and

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Page 16 record a finding regarding the past antecedents of the victims and the

circumstances in which they were killed. The State Government and all

other concerned agencies are directed to hand over to the Commission,

without any delay, all records, materials and evidences relating to the

cases, as directed above, for holding the enquiry. It will be open to the

Commission to take statements of witnesses in connection with the

enquiry conducted by it and it will, of course, be free to devise its own

procedure for holding the enquiry. In light of the enquiries made by it,

the Commission will also address the larger question of the role of the

State Police and the security forces in Manipur. The Commission will

also make a report regarding the functioning of the State Police and

security forces in the State of Manipur and in case it finds that the

actions of the police and/or the security forces transgress the legal

bounds the Commission shall make its recommendations for keeping

the police and the security forces within the legal bounds without

compromising the fight against insurgency.

The Commission is requested to give its report within twelve

weeks from today.

The Central Government and the Government of the State of

Manipur are directed to extend full facilities, including manpower

support and secretarial assistance as may be desired by the

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Page 17 Commission to effectively and expeditiously carry out the task assigned

to it by the Court.

The Registry is directed to furnish a copy of this order and

complete sets of briefs in both the writ petitions to each of the members

of the Commission forthwith.

Put up on receipt of the report by the Commission.

…..………………………….J.

(Aftab Alam)

…..………………………….J.

(Ranjana Prakash Desai)

New Delhi;

January 4, 2013.

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