High Court Order Bannin People's Commission

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HIGH COURT ORDER
BANNIN PEOPLE’S COMMISSION
CIVIL WRIT PETITION No. 14133 OF 1998

(1) Civil Writ Petition No. 14133 of 1998

Sudershan Goel Vs. The Union of India and others

Present: Shri Jayant Dass, Sr. Advocate with S/Shri M.L. Puri and S.C. Gupta, Advocates for the petitioner.

Shri H.S. Mattewal, Advocate General, Punjab
Shri Rupinder Khosla, Deputy Advocate General, Punjab
For the State of Punjab.
Smt. Indira Jaisingh, Sr. Advocate with
Ms. Anita Shenoy, Advocate for the Intervener.
Shri R.S. Bains, Advocate for the Intervener.
Shri Ashok Aggarwal, Sr. Advocate with
Shri Subhash Goyal, Advocate.

(2) Civil Writ Petition No. 16608 of 1998

Jatinder Pannu Vs. Union of India and others

Present:

Shri D.P.S. Kahlon, Advocate for the petitioner.
Shri H.S. Mattewal, Advocate General, Punjab
With Shri Rupinder Khosla, Deputy Advocate General, Punjab
For the State of Punjab.
Shri Ashutosh Mohunta, Advocate
For the Union of India.

(3) Civil Writ Petition No. 17121 of 1998

Mohan Singh and others Vs. Union of India and others

Present:

Shri Rajan Gupta, Advocate for the petitioner.
Shri Ashutosh Mohunta, Advocate for the Union of India.
Shri H.S. Mattewal, Advocate General, Punjab
With Shri Rupinder Khosla, Deputy Advocate General, Punjab
For the State of Punjab.
Shri S.S. Sood, Advocate for the Intervener.

Amar Dutt, J.

By this order, we are disposing of Civil Writ Petition Nos. 14133, 16608 and 17121 of 1998 as common questions of law and fact are involved in the same. These petitions have been filed primarily for issuance of a writ in the nature of mandamus to the Union of India (respondent no. 1) and to the State of Punjab (respondent no. 2) for taking appropriate action against the People's Commission (respondent no. 3) by prohibiting it from carrying out the objects set out in its constitution and from holding its scheduled sittings. For the purpose of deciding the issues which arise for determination by this Court, we are taking notice of facts largely from Civil Writ Petition No. 14133 of 1998.

Sudarshan Goel, who is a practising advocate and is a member of the Punjab and Haryana High Court Bar Association since 1979. He says that he does not have any personal interest and he is not affected by the working of the People's Commission but he has invoked the jurisdiction of this Court under Article 226 of the Constitution of India because the working of the Commission has seriously eroded the people's confidence in the majesty of law. He further says that this petition represents the sentiments of millions of citizens of India especially the persons living in the State of Punjab and surrounding areas who are interested in upholding the majesty of law and ensuring that the administration of justice is not tampered with or interfered with in any manner. He has referred to the news reports regarding the setting up of the Commission under the Chairmanship of Mr. Justice D.S. Tewatia, former Chief Justice of Punjab and Haryana High Court, Mr. Justice H. Suresh, a retired Judge of Maharashtra High Court and Mr. Justice Jaspal Singh, retired Judge of Delhi High Court as its members. The Commission, it is alleged has been set up by 20 odd organizations and political outfits engaged in work related to the preservation and protection of civil liberties and human rights who had decided to form an umbrella organization in the name of the Committee for Coordination on Disappearances in Punjab (for short, the Committee).

The petitioner's case is that even though the Commission does not have any authority in law of land to summon any person or to make adjudication on the complaints filed before it and its decisions, judgments and orders are not enforceable in any Court of law, to achieve the object set out in the agenda prepared by the Committee, the Commission had issued summons to many police officers calling upon them to answer the charges which have been levelled against them and to defend themselves before the Commission and it had held sittings from October 8 to 10, 1998 at Gurdwara in Sector 34, Chandigarh and the next sittings of the Commission are scheduled to be held from October 23 to 25, 1998 at Ludhiana. This functioning of the Commission, according to the petitioner, amounts to setting up of a parallel judicial system and will result in subverting the established judicial process in the country and may pose a serious threat to the survival to the Republic of India. It is likely to bring disrepute to the system of administration of justice and amounts to interference with the same. The findings that may be recorded by the Commission are likely to be used for the purpose of publicity and may only result in demoralizing the officers who at the risk to their lives curbed militancy and restored normalcy in the State of Punjab. Petitioner has made reference to the demand made by none else than Shri Balramji Dass Tandon who is a member of the Council of the Ministers of Punjab that the Commission should be restrained from summoning the officers. A reference has also been made to the letter written by then Advocate General, Punjab, Shri G.S. Grewal in which he decried the setting up of the Commission in the following words:-

"….. The only effect of the so called People's Commission would be to paint some police officers black in the public eye. The Commission has no financial resources to pay compensation in any genuine case. Ultimately the cases will have to go to Courts. Instead of holding private trial and projecting the police officers criminals before the public, it would have been more in accordance with the judicial norm, if Justice Kuldip Singh had organized a team of Lawyers to scrutinize the facts of each allegation and file petitions for compensation direct in the relevant Court. To hold a public trial before the cases are sent to the Court is objectionable from legal, moral and political point of view. The Commission has issued summons to the police officers to defend themselves before it. Does the Commission have such powers under law? The only sanction behind the Commission is its capacity to black mail the officers who under law cannot appear before the Commission. Judges can exercise only those powers which are vested in them by law. Do retired judges have more powers? If today such private courts are permitted to function, tomorrow we will have private High Court and private Supreme Court. Does the concept of equality and freedom in our Constitution mean this?………"

Doubts regarding the validity of the Commission had also been expressed by the Communist Party of India. In view of all these circumstances, the petitioner prays for the grant of relief in the terms already indicated herein before.

In response to the notice issued by the Court, some of the respondents have filed written statements:-

The Union of India, after submitting that it has taken notice of the activities of the Commission and sought a report from the State of Punjab, asserted that the functioning of the Commission tends to encroach upon the judicial functions of the State. It has also asserted that India has a very strong and independent judicial system and institutions like National Human Rights Commission who are seized of the various complaints that have arisen out of the situation which prevailed in Punjab during the period of trans-border terrorism in the State. According to the Union of India, the Commission has no role to play other than assisting the judicial Courts and the National Human Rights Commission in its capacity of a private initiative. It has also been asserted that the action of the Commission in issuing notices to public servants are illegal and the officers have been advised to ignore the same. In the end it is asserted that the Court should restrain the Commission from doing anything which encroaches upon the judicial functions of the State.

In the written statement filed by Shri Ranbir Singh, Under Secretary, Home, Punjab it has been averred that the commission is a private body having no legal sanction behind it and it has no power to compel appearance of government officials who are entitled to ignore the notices and the so called summons issued to them. At the same time it has been averred that the functioning of the Commission had not created any law and order problem or infringed any law so as to call for interference by the State in the affairs of this private body. The State, it is submitted, is fully alive to its constitutional and legal obligations and is closely watching the situation arising out of the functioning of the Commission and would interfere whenever any cause or situation arises warranting intervention by the State. It has also submitted that the Government of India as well as the State of Punjab has set up National Human Rights Commission. Both these Commissions examine and investigate complaints relating to violations of human rights as also the negligence on the part of any public servant in preventing such violations and a number of complaints pertaining to Punjab are under consideration before these Commissions. Further, the stand of the State of Punjab is that in view of the provisions contained in Section 36 (2) of the Protection of Human Rights Act, 1993, the National Commission or the State Commission are prohibited from interfering with any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. Still further, the State of Punjab has averred that in view of the availability of the effective statutory bodies which can exclusively enquire into the allegations of violation of human rights as also in view of the availability of civil and criminal Courts and constitutional remedies under Articles 32 and 226 of the Constitution of India and effective statutory bodies like National Human Rights Commission and the State Human Rights Commission constituted under the Protection of Human Rights Act, 1993 who can enquire into the violations of human rights, the People's Commission will not serve any useful purpose. However, the stand of the State is that in view of the fundamental rights guaranteed under the Constitution particularly under Article 19, the State cannot interfere with the private initiatives such as People's Commission unless these infringe any law or otherwise give rise to a law and order problem.

The People's Commission itself was served through its Chairman but none has put in appearance on its behalf. Instead an application was moved on behalf of the Committee for permission to intervene. This application was allowed and an affidavit was filed by Shri Ram Narayan Kumar, a Convener of the aforesaid organization in which preliminary objection has been taken regarding the maintainability of the present writ petition on the ground that petitioner has no locus standi to invoke the writ jurisdiction. It is also submitted that the Commission derives its legitimacy from the guarantees under Article 19 (1) of the Constitution of India which are sacrosanct and can only be curtailed if the exercise of the right is in conflict with imperatives of national security as indicated in Article 19 (2) of the Constitution of India. In the exercise of right to collect information guaranteed under the Constitution, the Commission has been constituted to inquire into the complaints of human rights violations that are made before it. It has been averred that perusal of the terms of reference of the Commission would indicate that all proceedings of the Commission would conform to the rules made under the Commissions of Inquiry Acts and the procedure laid in these rules and the principles of natural justice. The Commission, it has been submitted has no intention of dealing with or commenting upon pending matters. Since all the members of the Commission have been high functionaries of the Indian Judiciary, it was improper for the petitioner to raise doubts about their honesty of purpose.

According to the Intervener, the People's Commission has been set up:

a) To develop a voluntary mechanism to collect and collate information on serious human rights abuses committed by the State agencies, and to pursue for justice.

b) To evolve a workable system of State accountability.

c) To lobby for India to change the domestic laws in conformity with UN instruments on torture, enforced disappearances, accountability, compensation to victims of abuse of power and other related matters.

d) To initiate a debate on vital issues of State powers, its distribution, accountability and to work for a shared perspective on these matters with concerned organizations and movements all over India.

According to him, these aims and objectives, the human association on their basis, the work of fact finding their publicity derive legitimacy from the Indian constitutional guarantees. These are also in consonance with the Universal Declaration of Human Rights, Convention on the Prevention and Punishment of Genocide, International Covenant of Civil and Political Rights, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for the Protection of All persons under any form of detention or imprisonment and the UN Principles on the Effective Prevention and Investigation of Extra Legal, Arbitrary and Summary Executions.

It is also submitted that right to know is a citizen's right. The freedom of information is fundamental to all fundamental rights. A People's Tribunal gathering information, collecting relevant materials on an event of public importance, sorting them out judicially, marshalling the evidence and conveying the whole testimony so gathered, in the shape of a report, is the discharge of public duty of the highest order. No one can, under the laws of India, stop the right to give or receive information, except where it is mischievously intended to interfere with or skew the course of judicial justice. It is also submitted victims of police repression cannot be prevented from expressing themselves to the People's Commission and the officials from whom enquiries are made are free to ignore or entertain the queries whereupon it will be open to the People's Commission to reach its conclusions even without their participation. It is also submitted that to say that People's Commission aims at setting up a parallel judicial system to subvert the judicial process is irrational in as much as the Commission is not going to deal with or comment upon any pending matter. As regards decided cases, it has been urged that any judgment delivered by the Court of law is always open to critical analysis and scrutiny. In view of this, if any one has brought to the notice of the Commission that the Courts have been instrumental in defeating or demeaning the fundamental rights of the citizens, the Commission would be within its legal rights to examine such judgements in decided cases. In its enthusiasm to justify the setting up of the Commission, the Intervener has submitted that the judiciary has often been acting under the erroneous perception of limitation of authority to enforce fundamental rights. In a society that tends to relegate human rights to a place secondary to considerations of political expediency, the judiciary has a crucial role that holds the balance between democracy and dictatorship, between life and death for thousands. Its integrity cannot survive if we place its actions beyond all public scrutiny. After all, we have an established history of political manipulation and interference with the judiciary, which has explicitly aimed to destroy its independence and integrity. It is acknowledged that our judiciary with its beleaguered judges, its backlog of cases, corruption, nepotism and political appointments vitiating its capacities for integrity, courage and dignity is in an unenviable position. We also know how the officers of the executive and the security agencies have held judiciary's attempts to enforce human rights with disdain and even outright hostility. For justifying this, he has relied upon the comments made by many International Organizations like Amnesty, Human Rights Watch Asia and Federation International des Ligues des Droits de L'Homme who commented Indian judiciary lacking the teeth or the will to bring justice in extraordinary situations that obtained in places like Punjab. On the basis of these averments, it is asserted that the writ petition is devoid of any merit and should be dismissed.

Shri Surjit Singh Sood, Advocate, had also sought intervention in this matter and he too has filed the affidavit which seeks to justify the setting up of the Commission on the ground that the State of Punjab has not appointed any Commission to conduct inquiries into the human rights violations committed by the functionaries of the State while fighting terrorism between 1979 to 1997.

Shri Madanjit Singh, PPS, who was summoned by the Commission had also filed an application seeking permission to intervene which was allowed. In his affidavit, he has submitted that two of the members of the Committee namely Mr. Jaspal Singh Dhillon and Mr. D.S. Rajput are facing trial in cases registered against them for waging a war against the country and sedition on account of their active involvement with the terrorists involved in blasting the Burail Jail so as to facilitate the escape of Jagtar Singh Hawara, the prime accused in Beant Singh's assassination case. This fact according to him warrants an inference that the Committee under the garb of protection of human rights is in fact helping the terrorist directly as well as indirectly and the Commission has been set up with the sole objective of demoralising the police officials so that no action is taken by them against the terrorist who are again trying to raise their ugly head in the State of Punjab. According to him, one of the objective of the Commission is to grant justice, if the courts in the country have acted in a partial manner or attempted to shield the accused. Such an attempt would clearly fall within the ambit of the Contempt of Courts Act and as no parallel Court can be set up by any group of individuals howsoever eminent they may be, the setting up of the Commission according to him gives an impression that it is working as a superior Court than the duly constituted courts of law which have been functioning in the country. He has elaborated the facts on the basis of which the petitioners are claiming that the setting up of the Commission is illegal and prayed that this Court should restrain the Commission from doing anything which encroaches upon the judicial functions of the State.

The other two petitions have been filed by Shri Jatinder Pannu and Mohan Singh and two others. Shri Jatinder Pannu too has averred that he is invoking the jurisdiction of the High Court under Article 226 of the Constitution of India in larger public interest. Mohan Singh and two others who have filed Civil Writ Petition No. 17121 of 1998 have averred that they are victims of terrorists in the State of Punjab and have witnessed the most gory period in the history of State of Punjab. In paragraph 5 of their petition, it has been averred that Hardip Singh son of petitioner Mohan Singh was killed by the militants on 23.1.1990 when he was participating in the Akhand Path. For this incident F.I.R. No. 8 of 1990 was lodged at Police Station Kahnuwan. On 30.9.1990, the militants attacked his family and killed his wife and other son namely Puran Singh and in this manner his entire family was wiped out. In respect of the second incident, F.I.R. No. 87 of 1990 was registered at Police Station Kahnuwan. Jasbir Singh son of other petitioner namely Ajit Singh is alleged to have been killed by the militants on 25.8.1990 for which F.I.R. No. 71 of 1990 was registered at Police Station Qadian. His wife Smt. Dhanwant Kaur was also injured in that incident. The father and another close relation of third petitioner Narinder Singh were shot dead by the militants on 27.7.1988 in the broad day light. F.I.R. No. 212 of 1988 was registered at Police Station Sadar Batala in respect of this incident. In both these petitions, bona fides of the People's Commission have been questioned and it is alleged that the Commission has been set up with a design to disrupt the peaceful atmosphere prevailing in the State and to subvert the system of administration of justice.

Arguments in all these petitions were heard on different dates. On the first hearing i.e. November 18, 1998, learned Deputy Advocate General, Punjab made a statement that the State Government has already decided to move the Central Government to make suitable amendments in Section 36 (2) of the 1993 Act so that the State Rights Commission can take cognizance of the complaints of human rights violations relating to the incidents that took place prior to a period of one year. On February .., 1999, Shri Ashutosh Mohunta, counsel for the Union of India stated out that the proposal sent by the Government of Punjab for amendment of Section 36 (2) of the 1993 Act had not been accepted by the Government of India. Thereafter, further arguments were heard and the order reserved. At that stage also, we had given time to the learned Advocate General/ Deputy Advocate General, Punjab to inform the Court whether the Government is willing to constitute an independent Commission under the Commission of Enquiries Act to look into the circumstances related to terrorist violence and the violations of human rights. In reply, the counsel representing the State asserted that the Government of Punjab has again approached the Central Government for amending Section 36 (2) of the 1993 Act. On August 13, 1999, the counsel for the Union of India stated that the Government of India has once again rejected proposal sent by the Government of Punjab. Learned Advocate General also stated that the State Government had taken a decision not to constitute a Commission under the Commission of Inquiry Act, 1952.

We shall first deal with the preliminary objections raised by respondent no. 3 and the Intervener to the maintainability of the writ petition on the ground that no writ lies against a private body like respondent no. 3 and in any case the petitioners do not have locus standi to seek a restraint order against the functioning of respondent no. 3. The other objection of the Interveners is purely hypothetical and conjectural and has been evinced at a premature stage which renders the petitions frivolous and vexatious.

In our opinion, the objection to the locus standi of the petitioners deserve to be rejected. The petitioner, Sudarshan Goel, Jatinder Pannu may not have been directly affected by the activities of the militants in Punjab but the other petitioners namely Ajit Singh, Mohan Singh and Narinder Singh are direct sufferers of the actions of the militancy. They have lost their near and dears at the hands of the militants. Therefore, it is not possible to accept the submission of the counsel for the non-official respondents and interveners that the petitioners should be non-suited on the ground of locus standi. Otherwise also, we do not find any valid ground to decline consideration of the petitioners' case on merits. The objection raised to the maintainability of the petitions has to be seen in the light of the fact that the petitioners have approached the Court for issuance of a writ in the nature of mandamus directing the Union of India, State of Punjab to restrain respondent no. 3 from acting in a manner which would amount to subversion of the judicial system prevalent in the State. The main allegation of the petitioners that the constitution of the Commission is nothing but an attempt to set up a parallel system of adjudication of matters like of a particular character, which if allowed, will shatter the faith and confidence of the people in the existing judicial system.

It is difficult to comprehend as to how a private body can be allowed to do so. Neither any functionary of the State nor any private individual can be allowed to arrogate power to adjudicate and decide the disputes and usurp judicial powers. Apart from this, the Charter framed by the Intervener includes a clause which empowers the Commission to reopen the decided cases cannot be done without following the due procedure of law.

Moreover, in our opinion, neither any functionary of the State nor any private individual can have the right to arrogate unto itself the power to adjudicate and decide the disputes except when permitted by law, enacted by the Parliament or the State Legislature. We are, further of the view that power sought to be conferred on the Commission, if upheld, would amount to an attack on the established system in which orders and judgments of the Court are treated as final unless the same are reversed, modified or set aside by the appellate Court(s) or reviewed by the Court concerned. The Charter, according to which the Commission is going to work certainly impinges upon the functioning of the State and, therefore, we do not find any cogent reason to non-suit the petitioners by holding that he does not have the locus standi. For taking this view we draw support from the decision of the Andhra Pradesh High Court in T. Anjaneyulu and another Vs. D.T. Naik and others AIR 1997 A.P. 237 wherein when senior police officers of the State had created a People's Council for holding Panchayats for settling disputes such as land disputes, family matters, civil disputes and enquiries regarding non-cognizable offences, the Andhra Pradesh High Court held that the same amounted to interfering in the functions assigned to the Courts under Constitution and other laws and the police officers and other Members of the Council were restrained from entering upon adjudication and instead on receipt of such a complaint for investigation were directed to inform the superior officers as well as the Magistrate in whose jurisdiction such complaint was registered.

We shall now deal with the main issue as to whether the People's Commission as set up by the Charter framed for governing its functioning and released by the Interveners impinges upon any of the functions which the State Executive is obliged to discharge in relation to the collection of information and investigation into any violations of human rights for eventual adjudication by the Judiciary. According to the Interveners which is a body that claims to be responsible for the initiative, the setting up of the Commission does not in any way impinge upon the functioning of the Judiciary. The Commission operates only as an information gathering body which has been set up to tabulate the cases where excesses were committed by the State agencies in Punjab in between the years 1979 to 1997. The Committee asserts that this function the Commission is entitled to carry out in the exercise of the right of information guaranteed to an individual by Article 19 of the Constitution.

While there can be little dispute about the submission that right of a citizen to freedom of speech has by judicial precedents been extended to that he has a right to receive and disseminate information and the recognition of this right is not even disputed on behalf of the petitioners in the petitions. We will have to determine whether this right confers on an individual or group of individuals a right to assume to himself or themselves the right and obligation to receive complaints regarding any misdemeanour committed by State officials and after investigating these indict the persons responsible for the same. With this end in view it becomes necessary to advert to the Rules of the People's Commission on Human Rights Violations in Punjab which have been framed by the Committee indicating the parameters within which the People's Commission would function. These are appended as Annexure P.1 with writ petition No. 14133 of 1998.

Article 1 indicates that the Commission would examine the complaints of illegal abductions, custodial torture, enforced disappearances, summary executions and illegal en-mass cremations and to give its findings on:

(a) Whether from 1979 to 1997 the agencies of the State carried out and tolerated directly or indirectly any of the above mentioned atrocities and thereby committed violations of Human Rights as guaranteed under the Constitution of India and various international covenants and declarations.

(b) Whether the State agencies/individuals have prima facie committed any offence under the law of the land or international law. The Commission further suggest the remedies available to the victims of the aforementioned atrocities including their entitlement to compensation from the State and its agencies. The said Article also requires the Commission to go into the causes and the reasons for the utter failure of the State and its agencies in the performance of their duties as required under the rule of law.

Article 2 spells out the purview of the enquiry and indicates "the following acts against persons or property protected under the provisions of the relevant statutes would fall within the purview of its enquiries:

a) Willfully killing of prisoners in custody whether legally arrested or not.

b) Their torture or inhuman treatment.

c) Willfully causing great suffering or serious injury to body or health.

d) Destruction and appropriation of property, not justified by necessities of police functions and carried out unlawfully and want only.

e)Compelling a prisoner, detained legally or otherwise to assist the clandestine operations of the security forces.

f) Willfully depriving a prisoner of the rights of fair and regular trial.

g) Taking of civilians as hostages to compel their relatives and friends who may be absconding from the law, to surrender to the authorities.

h) Seizure of, destruction or willful damage done to institution dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.

i) Plunder of public or private property.

j) Acts of genocide as defined in the Convention on the Prevention and Punishment of the Crimes of Genocide.

Article 3 prescribes the territorial and temporal jurisdiction which extends to such persons affected by the aforesaid acts in the territory of India and includes persons who have migrated to foreign countries to escape prosecution or for any other reason.

Article 4 spells out the individual's criminal responsibility for instigating, ordering, committing, conspired or otherwise aiding and abetting in the planning, preparation or execution of a crime referred to in Article 2. It also indicates that the official position of any accused person, high or low, shall not relieve such person of civil or criminal responsibility/liability. It further states that in relation to the acts committed by the subordinates in Article 2, the same will not relieve his superior of civil and criminal liability in case he knew or had reasons to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. It further provides that the mere fact that the accused person acted pursuant to an order of a Government or of a superior shall not relieve him of civil and/or criminal responsibility, but may be considered in mitigation of personal responsibility if the People's Commission determines that justice so requires.

Article 5 states that inquiries into cases that are sub judice shall be categorized separately. It further indicates that the Commission may conduct inquiries into the conduct of persons who have already been tried by a Court of law only if it can be established that the Court proceedings were not impartial or independent and were designed to shield the accused from criminal responsibility or the case was not diligently prosecuted."

Article 6 sets out the organization of the Commission which is composed of

a) The Chamber of Judges, comprising three retired Judges of Supreme Court/any High Court.

b) The Investigators, and

c) A Secretariat, servicing both the Chamber of Judges and the Investigators.

Article 7 prescribes the Rules of procedure and evidence and indicates that procedure which would be followed by the Commission would be prescribed under the Commission of Inquiry Act, 1952, Section 4 whereof states that Commission shall have the power of Civil Court and Sections 4 and 5 of the Act are to the following effect:

"4. Powers of Commission: The Commission shall have the powers of a Civil Court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:

a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath.

b) Requiring the recovery and production of any document.

c) Receiving evidence on affidavits.

d) Issuing commissions for the examination of witnesses or documents.

f) Any other matter which may be prescribed.

"5. Additional powers of Commission. (1) Where the appropriate Government is of opinion that having regard to the nature of the inquiry to be made and other circumstances of the case, all or any of the provisions of sub section (32) or sub section (3) or sub section (4) or sub section (5) should be made applicable to a Commission, the appropriate Government may, by notification in the official Gazette, direct that all or such of the said provisions as may be specified in the notification shall apply to that Commission and on the issue of such a notification, the said provisions shall apply accordingly.

2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters, in the opinion of the Commission, may be useful for, or relevant to the subject matter of inquiry shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and 177 of the Indian Penal Code 45 of 1860).

3) The Commission or any officer, not below the rank of a gazetted officer, specially authorized in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any books of account or other documents relating to the subject matter of the Inquiry may be found and may seize any such books of account or documents or take extracts or copies therefrom subject to the provisions of Section 102 and Section 103 of the Code of Criminal Procedure, 1898 (5 of 1898), in so far as they may be applicable.

4) The Commission shall be deemed to be a Civil Court and when any offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898 (5 of 1898), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under Section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).

5) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860)."

Article 8 indicates the powers of the Investigator and states that he would be responsible for verifying the complaints and initiating proceedings against persons suspected of serious human rights violations.

Article 9 provides for Investigation and initiation of proceedings on the basis of information obtained from any source, particularly from the Committee.

The Investigator is then required to assess the information obtained and decide whether there is sufficient basis to proceed. The said Article further empowers the Investigator to interview suspects, victims and witnesses to collect evidence and to conduct on site investigations and while doing so he is authorized to seek the assistance of any human rights organization, other bodies and individuals. It further provides that when the person suspected of human rights violation is interviewed by the Investigator, that person would be entitled to be assisted by a counsel of his choice. After making investigations, the Investigator is required to prepare an indictment containing a concise statement of facts and the crime or crimes with which the accused is charged. The indictment transmitted to the Commission would be supported by affidavits by way of evidence.

Article 10 indicates that Judges of the Commission to whom indictment has been transmitted shall examine it and if they are satisfied that a prima facie case has been established they shall confirm the indictment. If not so satisfied, they may either require the Investigator to carry out further investigation or dismiss the indictment. In case where the indictment is confirmed, the Commission shall issue notices and other orders as may be required for the conduct of the proceedings and have them served on the respondents by registered post, through the head of the Government Department.

Article 11 empowers the Commission to seek cooperation and judicial assistance of the State authorities in the investigation of the cases.

Article 12 deals with the proceedings which are conducted by the Commission and indicates that the person against whom indictment has been confirmed shall be informed of the charges against him and would be requested to present himself for the hearing of the matter. Thereafter, "The Commission shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Commission shall then set the date for examination and cross examination of evidence against him." According to Article 12, the evidence shall be public unless the Commission decides to hold the proceedings in Chamber for reasons to be recorded in writing.

Article 13 incorporates the rights of the accused and says that in the determination of the charges against an accused he shall be entitled to a fair and public hearing subject to Article 12 of the Statute. It also indicates that the accused shall be presumed innocent unless proved to be guilty and would be entitled to the minimum guarantee in full equality:

a) to be informed promptly and in detail in a language which they understand of the nature and cause of the charges against them.

b) to have adequate time and facilities for the preparation of their defence.

c) to have the proceedings of the Commission conducted in their presence and to defend themselves in person or through legal assistance of their choice; to examine, or have examined, the witnesses against them and to obtain the attendance and examination of the witnesses on their behalf under the same conditions as witnesses against them.

Article 14 deals with the power of the Commission to give findings and indicate that the Commission shall give its findings/report/recommendations if any with regard to the evidence and other material placed before it. The Commission shall also recommend compensation to the victims of atrocities or their relatives as deemed appropriate. It further indicates that the findings of the Commission shall be rendered by a majority of the Judges of the Commission and shall be delivered in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.

From a perusal of the above provisions, it becomes clear that People's Commission apart from receiving and tabulating the complaints of persons who claim to be victims of human rights violation at the hands of the State and its functionaries during the period extending from 1979 to 1997 can have the complaints investigated by the Investigators attached to the Commission who will after going into the allegations submit a report, which is termed as indictment to the Chamber of Judges. The Chamber of Judges then can call upon the person against whom the complaint is to present himself whereupon the Chamber of Judges explain the indictment and record the evidence in his presence affording an opportunity to the person so indicted to cross examine the same.

The 'Commission' according to Black's Law Dictionary, means;

" A warrant or authority or letters patent issuing from the government, or one of its departments, or a court, empowering a person or persons named to do certain acts, or to exercise jurisdiction, or to perform the duties and exercise the authority of an office. Also in private affairs, it signifies the authority or instructions under which one person transacts business or negotiates for another. In a derivative sense, a body of persons to whom a commission is directed. A board or committee officially appointed and empowered to perform certain acts or exercise certain jurisdiction of a public nature or relation; as a "commission of assize".

"An authority or writ issuing from a court, in relation to a cause before it, directing and authorizing a person or persons named to do some act or exercise some special function; usually to take the depositions of witnesses."

"Commission Assize. In English practice. A Commission which formerly issued from the King; appointing certain persons as commissioners or judges of assize to hold the assizes in association with discreet knights during those years in which the justice in eyre did not come. A commission issued to judges of the high court or court of appeal, authorizing them to sit at the assizes for the trial of civil actions."

Thus it is clear that in legal as well as common parlance, Member of a Commission is understood to be a person duly authorized by the State or the Court of law to go into the matter referred to it and his powers include the recording of evidence.

The Charter also uses the word 'indictment' which according to Black's Dictionary means;

"An accusation in writing found and presented by a grand jury, legally convoked and sworn, to the Court in which it is impanelled, charging that a person therein named has done some act, or been guilty of some omission, which by law, is a public offence, punishable on indictment."

According to Chambers English Dictionary, 'indictment' means:

"a formal accusation: the written accusation against one who is to be tried by jury: the form under which one is put to trial at the instance of the Lord Advocate"

According to Webster's Third New International Dictionary, 'indictment' means:

"the action of indictment; the legal process by which a bill of indictment is preferred to and presented by a jury; the state of being indicted; a formal written statement framed by the prosecuting authority of a State and found by a jury charging a person with an offence; a process of bringing a person to trial for a crime at the instance of Lord Advocate."

The Charter also uses the word 'accused' for the person against whom complaint has been preferred which according to Black's Dictionary means:

"Accused is the generic name for the defendant in a criminal case and is more appropriate than either "prisoner" or "defendant"."

The manner in which the Charter is framed, indicates the desire on the part of the framers to project to the general public that the function which is being performed by the Commission/Chamber of Judges is judicial function even when it is neither authorized by the State nor by any Court of law. The fact that no effort has been spared by the Intervener to project this aspect of the functioning of the People's Commission is further evidenced from the manner in which the Rules of Procedure incorporated in the Charter are framed. Article 7 indicates that People' Commission in matters of procedure was to be governed by the provisions of the Commissions of Inquiries Act, which reproduced herein above, indicates that People's Commission would exercise all the powers of the Civil Court and Intervener had tried to project that they would also have the powers and would be treated as a Court for the purposes of Code of Criminal Procedure and Indian penal Code. Further more, the provisions of the Charter also indicate an effort to project that the Commission was performing functions which were analogous to the functions of the State as spelled out in the provisions of the Cr.P.C. For example the Charter authorises the Commission to entertain a complaint which function under the Cr.P.C. is envisaged in Section 172 Cr.P.C. The formation of an indictment by the Investigator is analogous to the function indicated in Section 173 Cr.P.C. It also provides for recording of evidence in the presence of the accused and an opportunity being given to him to cross examine the witnesses whereafter 'the Chamber of Judges will record the finding regarding guilt or innocence of the accused and assess the compensation payable by him which function is analogous to the provisions contained in Section 357 Cr.P.C. Thus, while doing so, the Charter takes upon the functions of the Legislature. This effort of the Intervener while framing the Charter of the People's Commission indicates that the Commission is working as a body which combines the functions of the Investigating Agency and the Criminal Courts as also the Human Rights Commissions which have been set up under the Protection of Human Rights Act in as much as it takes upon itself the power to go into the violations of human rights. According to Section 2 (d) of the Protection of Human Rights Act, 1993, human rights is defined as:

"human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the Courts in India."

The non-official respondents claim that all this is being done by them in the exercise of their right to receive information and disseminate the same as has been recognized by the Apex Court to be an extension of right of freedom of speech and expression envisaged in Article 19 of the Constitution of India.

From the above discussion, it is apparent that the People's Commission is in fact trying to achieve under the garb of exercise of this right something much more than receiving and disseminating information which the citizen is entitled to as has been held in Secretary, Ministry of Information and Broadcasting, Govt. Of India and others Vs. Cricket Association of Bengal and others 1995 (2) SCC 161 and in fact what the Commission is arrogating on itself is the function enjoined on the State executive and the judiciary especially under the Cr.P.C. as well as under the Protection of Human Rights Act of receiving information, having it investigated into and adjudicated upon by the machinery set up by the State for the purpose. By setting up the Commission and framing the Charter, the Interveners have tried to project the Commission as a judicial body which will function side by side with the official machinery of the State to go into the grievances that any person may have against the acts of omission and commission impinging upon the human rights that might have been done by the State functionaries during the period extending from 1979 to 1997 because Article 21 of the Constitution provides that no one shall be deprived of his life or personal liberty except by procedure established by laws. This effort of the Committee in as much as it seeks to set up a parallel machinery and lay down procedure for investigation into the trial of human rights violation is nothing but affluent to the system envisaged by the Constitution of India. In a way the Commission seeks to arrogate to itself powers conferred under the Constitution upon the judiciary and statutory bodies like Human Rights Commission, therefore, cannot be sustained even though the initiatives taken by the Intervener for receiving information regarding human rights violations for the purposes of tabulation may in itself be a laudable effort. Its attempt to undermine the authority of various institutions of the Constitution cannot be approved.

The assertion that Commission has been set up only after SAD/BJP Government had failed to carry out its electoral promise of setting up of a Commission to go into human rights violations and also to determine the reasons for unrest which prevailed in the State of Punjab during the period from 1979 to 1997 would by itself call for sanction on the part of the initiatives which impinge upon the obligation of the State to investigate into, for adjudication upon the complaints that may be received by it in relation to the excesses alleged to have been committed by the functionaries of the State during this period because it would always be open to the Committee to have information and after tabulating these as violations, approach the State for getting investigation conducted into them and in case the response of the State was not adequate to have approached the Courts for redressal of their grievances. It is not disputed before us and as a matter of fact it has been brought out in the pleadings that a number of cases have been initiated against the functionaries of the State for human rights violations committed by them during this period in one such case which was initiated at the behest of Paramjit Kaur against the State of Punjab and others the Hon'ble Supreme Court had ordered the Central Bureau of Investigation to investigate into the abduction and disappearance of Shri J.S. Khalra, General Secretary, Human Rights Wing of Shiromani Akali Dal and cremation of thousands of dead bodies by the police in Amritsar District. On the receipt of the report, the Apex Court requested the National Human Rights Commission to go into the matter. In view of this, instead of setting up the People's Commission to go into the human rights violations and making an effort to project it as a parallel judicial body, the Interveners should have limited themselves to the collection of information of alleged human rights violations and after tabulating them should have presented before the State for a detailed enquiry into it and if need be should have taken the assistance of the Court. The setting up and projecting of People's Commission as a parallel judicial body which also performs the functions of the State regarding receiving of complaints and investigation into them can also not be justified in view of the fact that the same may adversely affect the public order, discipline and the society and encourage the setting up of similar Commissions by other individuals or groups of individuals and thereby undermine the public peace, safety and tranquility of society.

The matter can be looked from another angle. The upholding of such a private initiative in view of the provisions of Article 19 (1) (a) of the Constitution which ultimately affects the constitutional guarantees provided under Article 21 of the Constitution cannot be encouraged. Where two fundamental rights come into conflict and one is sought to be extended to the extreme and logical conclusion at the expense of the other, the Court will be slow to recognise and upholding such an extension of the fundamental right which impinges upon and restricts the purview of the other fundamental right.

Another aspect of the case which has been debated before us is the failure of the Government to set up an independent Commission under the Commission of Inquiries Act which according to the respondents had occasioned the setting up of the People's Commission to some extent justifies its existence. While the State of Punjab has taken a categorical stand against the setting up of the Commission under the Commission of Inquiries Act but they had time and again highlighted their effort to seek an amendment to the provisions of Section 36 (2) of the Protection of Human Rights Act by the Central Government. During the period, the petition remained pending before us that the State Government had made several unsuccessful attempts to persuade the Central Government to increase the limitation from one year to ten years. Although it is none of our function to go into the validity of the refusal of the Central Government to accede to the request of the State Government yet it would not be out of place to consider the propriety of limitation in the light of the circumstances that the Commission is called upon to enquire into violations of human rights which as already indicated by us comprised of the right relating to life and liberty, equality and dignity of an individual guaranteed by the Constitution or embodied in the International Covenants and are enforceable by the Courts in India. These rights which are enshrined in Chapter III of the Constitution are sacrosanct in case an individual seeks to enforce them by approaching the High Court through a writ under Article 226 of the Constitution or approaches the Supreme Court under Article 32 of the Constitution they would not be subject to narrow law of limitation which is sought to be incorporated in Section 36 (2) of the Act. See M/S Tilokchand Motochand and others Vs. H.B. Munshi, Commissioners of Sales Tax, Bombay and another, AIR 1970 SC 898 and the Courts would not deny enforcement of the right merely on the ground of bar of limitation.

Looked at from another angle the heinous offences of abduction and murder, they would not be covered under the law of limitation provided in Section 467 Cr.P.C. and will be subject to the limitation of one year. The complaints of heinous nature like murder, abduction, rape etc. can be taken cognizance of the Criminal Courts in India without any limitation standing in the way. Furthermore, in appropriate cases which came up before the High Court or the Supreme Court, a request can always be made to the National Human Rights Commission or the State Human Rights Commission set up under the provisions of the Protection of Human Rights Act for going into alleged human rights violation and in such a case neither the National Human Rights Commission nor the State Human Rights Commission would be bound by the limitation provided under Section 36 (2) of the Act. This is apparent from the fact that in Writ Petition (Crl) No. 497 of 1995 (Paramjit Kaur Vs. State of Punjab and others) decided on 12.12.1996, the Apex Court requested the National Human Rights Commission through its Chairman to examine the matter in accordance with law and determine all the issues raised before the Commission by the learned counsel for the parties and when the objection regarding the limitation under Section 36 (2) of the Act was raised before the National Human Rights Commission, it was overruled with the following observations:

"The order of the Supreme Court must be so read as to effectuate it. The Commission, the Governments and the parties are expected to act in aid and effectuation of that order and not to frustrate it. The order must be construed reasonably and harmoniously. The expression "to have the matter examined in accordance with law" is not necessarily the same thing as to function strictly within the limitations of the Act." The Supreme Court made the order in exercise of the plenitude of its jurisdiction under Article 32 of the Constitution. That for the parties and the Commission, has the effect and force of law.

The reasonable way to construe the order and effectuate it is to hold that the Commission was referred to only for purposes of identifying it as the body to which the Supreme Court was turning, in this instance for the protection of fundamental rights. Once the identification was made, it became a body sui-generis as the one chosen by the Supreme Court for carrying out its behest. The shackles and limitations under the Act are not attracted to this body as, indeed, it does not function under the provisions of the Act but under the remit of the Supreme Court. The provisions of the Act do not bind or limit the powers of the Supreme Court in exercise of its powers under Article 32. It is, therefore, reasonable to hold that the Supreme Court designated the Commission as a body sui generis to carry out the functions and determine issues as entrusted to it by the Supreme Court. To read the order otherwise is to render it otiose.

Now to the contention that the order of the Supreme Court virtually compels the Commission to function contrary to the law. Respondents rely upon the following observations of the Supreme Court in Union of India Vs. Kirloskar Pneumatic Company Ltd. JT 1996 (5) SC 26..

"……. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law."

This contention, however, begs the question. It presupposes that the Commission was required to function strictly under the provisions of the Act. If this underlying assumption is erroneous, equally, as a corollary, the objection itself becomes erroneous and untenable.

In the light of the foregoing discussion, the Commission holds that the Commission was designated as a body sui generis to carry out the mandate of the Supreme Court. As a logical consequence, it requires to be held on Issue no. 2 that the powers of the Commission in carrying out this mandate are not limited by Section 36 (2) or other limiting provisions, if any, under the Act."

This view of the National Human Rights Commission was challenged by the Union of India in the Supreme Court and while repelling the challenge in Paramjit Kaur Vs. State of Punjab, the Apex Court observed as under:

"The power and jurisdiction of this Court under Article 32 of the Constitution cannot be curtailed by any statutory limitation including those contained in Section 36 (2) of the Act. If this Court can exercise that power unaffected by the prohibition contained in Section 36 (2), there is no reason why the Commission, at the request of this Court, cannot investigate or look into the violations of human rights even though the period of limitation indicated in Section 36 (2) might have expired. In such a situation, the Commission will not be affected by the bar contained in Section 36 (2) and it will be well within its rights to investigate the matter referred to it by this Court."

Shri R.N. Trivedi, in support of the application for clarification submitted that the order of this Court by which matter was referred to National Human Rights Commission for disposal does not enable National Human Rights Commission to function sui generis. If the effect of the order is that the National Human Rights Commission can function sui generis, this Court could not create a new kind of jurisdiction in view of the decision in Antulay's case.

The concept of sui generis is applied quite often with reference to resolution of disputes in the context of International law. When the Conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to arbiter is entrusted acts sui generis, that is, on its own and not under any law.

In the present case, this Court in exercise of the jurisdiction under Article 32 of the Constitution entrusted the National Human Rights Commission to deal with certain matters in the manner indicated in the course of its order. All authorities in the country are bound by the directions of this Court and have to act in aid of this Court. National Human Rights Commission is no exception. The Commission function pursuant to the directions issued by this Court and not under the Act under which it is constituted. In deciding the matters referred by this Court, National Human Rights Commission is given a free hand, is not circumscribed by any conditions. Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature not covered by enactment or law, and thus acts sui generis."

The next question which we would like to deal with is the advisability of referring the matters with the request to the National Human Rights Commission and the State Human Rights Commission which are falling for the consideration of the People's Commission for adjudication for going into the same but we would refrain ourselves from doing so because no such request is forthcoming from the Interveners who while contesting the writ petitions merely confined their submissions to the validity of the same on the ground that it had been set up in the exercise of the right of information which is available to the individuals under Article 19 (1) (a) of the Constitution and in view of the opposition of the State to the setting up of the Commission under the Commission of Inquiries Act. It may also be indicated here that apparently in their enthusiasm to project the work which had been undertaken by them, the Commission has not produced before us any specific complaint which might have been made before it which prima facie constitutes human rights violations that would require investigation by it. Therefore, at this stage, we will not direct that the complaints received by respondent no. 3 may be referred to the Punjab Human Rights Commission or any other individual, the Court will consider the same in the light of the orders passed by the Hon'ble Supreme Court in Paramjit Kaur's case (supra).

In view of the above discussion, we do not consider it necessary to deal with the large number of judicial precedents cited at the Bar by the learned counsel for the parties on the ambit and scope of Article 19 (1) and Article 21 of the Constitution of India. We also refrain from making any observations on the propriety of the persons who at one time held high constitutional offices to take up assignment, which according to the petitioners, directly impinges upon the authority of the Constitution. In our opinion, it is for the holders of such constitutional offices to decide whether after having taken oath to maintain and preserve the constitution and its institutions it wil be appropriate for them to associate themselves with the activities which undermine the authority of the State established by law.

In the result, all the three writ petitions are disposed of in the following manner:

Respondent no. 3 and the Interveners are restrained from holding public sittings or making investigations into the cases which have already been decided by the Courts or are pending before the Courts. They are also restrained from issuing summons to the officers of the Government and other agencies to appear before the Commission for the purpose of so called investigation/inquiry into the complaints of alleged violation of human rights committed by the functionaries of the State. It is however, made clear that this order will not prevent respondent no. 3 and the Interveners from collecting information regarding the violation of human rights, if any, by the State and its agencies and approach the Court for reference of such cases to the State Human Rights Commission and the National Human Rights Commission for appropriate consideration.

Sd/- Amar Dutt.

Sd/- G.S. Singhvi.

Judges.

Dated: 20.12.1999