# People's Union for Civil Liberties v. State of U.P. and others

- **Citation:** High Court of Judicature at Allahabad #39642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/people-s-union-for-civil-liberties-v-state-of-u-p-and-others-39642
- **Pages:** 16

## Text

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INDIAN LAW REPORTS ALLAHABAD SERIES [2000
34
the 'Bharat Petroleum' is to the effect that
every drop of Petrol should be saved as it is
not going to last for ever. Obviously the
emphasis is on its limited resources and on its
weight/measurement and utilisation to the
maximum.
The
Parliament
has
made
endeavours to protect the consumer's interest.
The law stands well settled that there is a
presumption of constitutionality of an Act and
the onus lies on the person challenging its
vires.
Having
gone
through
the
aforementioned sections and other provisions
of the Act we find substance in the
contentions of Mr. Parekh and Mr. Bisaria
both.

15.
By
installation
of
computerised
machines in the petrol pumps the variations
have now been brought to the minimal as
claimed by the learned Standing counsel for
the Union, which has not been disputed before
us. Unfortunately the Petitioners have not
impleaded
the
Oil
Companies,
whose
presence would have been useful to know
their view points. Thus, the assertion of the
petitioners that it is impossible for them to
install foolproof machines, is not acceptable
to us. The submission in this regard being
based on mere self serving statements of
petitioner no.2 is not worthy of acceptance.
True it is that is well known dectum that the
law does not expect a party to do the
impossible- "impossibilium mulla obligatio
est"- but here we do find that the law is asking
the petitioners to do impossible rather the
Petitioners have been given a latitude to
supply upto 0.3 % deficient fuel to the
consumers out of 5 litres. It, thus, cannot be
held to be unreasonable or an arbitrary
legislation. The Act is a socio economic
legislation which intends to remedy the evil of
short
supply
of
Petrol/Diesel/or
any
commodity which may be purchased by any
consumer.

16. We have also perused the judgement
relied upon by Sri Ravi Kant. They do not
support his contentions as claimed.
17. We thus do not see any vice of
arbitrariness or unreasonableness so as to hold
these sections as violative of Articles 14, 19
(1) (g) and 21 of the Constitution of India.

18. For the reasons aforementioned we
dismiss this writ petition but without cost.

19. The office is directed to hand over a
copy of this order within one week to (i) Sri
K.K. Parekh, the learned Additional Standing
Counsel of the Union and (ii) Sri P.K.Bisaria,
learned Standing Counsel of the State of U.P.
both for its intimation to the authorities
concerned.

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1ALL] People's Union for Civil Liberties V. State of U.P. and others

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By the Court

1. The Petitioner has come up to this
Court for commanding Respondent no.1 the
State of U.P. to (I) constitute a State Human
Rights Commission (hereinafter referred to as
S.H.R.C.) under section 21 of the Protection
of Human Rights Act, 1994 ( hereinafter
referred to as the Act) and (ii) create Human
Rights Courts at district level under section 30
of the Act.

2. The case of the petitioner is to this
effect :- The Petitioner is a non-political
organisation of such citizens of India who are
committed to promote and protect, interalia,
human rights; a copy of its aims and object is
filed as Annexure - 1; after recording his
satisfaction that the circumstances existed for
an immediate action for protection of human
rights and to achieve the objects/purpose as
contained in Section 2(1) (d) the read with
preamble, the President of India promulgated
Protection of Human Rights Ordinance, 1993
(Ordinance No. 30 of 1993) on 28.9.1993
which was later replaced by the Act; Section 3
of the Act provides that the Central
Government shall constitute a body to be
known as the National Human Rights
Commission
(hereinafter
referred
to
as
N.H.R.C.) pursuant to which Respondent no.3
was constituted; Section 21 of the Act
provides that the State Government may
constitute a body to be known as S.H.R.C.;
Respondent
no.3
started
functioning
immediately, and receiving complaints in
regard to custodial deaths, rapes, fake
encounters and other police excess; this Court
passed direction for consideration by the State
of U.P. for establishing a S.H.R.C. on the
ground that the legislative intent of the
Parliament is being ignored for long vide its
Judgement & Order dated 9.2.1996 in
C.M.W.P No. 32984 of 1994 Uttarakhand
Sangharash Samiti Versus State of U.P.; the
Governor of U.P., when the State was under
President's Rule, issued a Notification on
4.4.1996 under section 21(1) of the Act for
constitution
of
S.H.R.C.
realising
the
extremely grim condition of law and order
problem in the State; the former C.J.I. Sri
R.N. Misra, after he became a Member of
Rajya Sabha, revealed on 22.7.1998 on the
floor of the Rajya Sabha of the fact
aforementioned which is evident from the
report published in the Newspaper "Times of
India"
23.7.1998
Edition
appended
as
Annexure -2; Respondent no.3. in its Annual
Report 1996-97 stated that "a country of the
size and diversity of India needs Human Right
Commission at the state level, the reasons are
obvious, the redressal of grievance must be
swift and inexpensive, the message of human
rights must reach the gross-root level in the
languages of the people of the country, the
federal character of our Constitution must be
respected . the nation-wide challenge need an
army of activist in each State and in each
district, if societal and attitudinal changes are
to be brought about"; State Human Rights
Commissions have been established in the
States of West Bengal, Himachal Pradesh,
Assam, Punjab and Tamil Nadu; Respondent
no.3 had received8497 complaints from our
State out of Total number of 20833 in 196-97;
Sri Kalyan Singh the present Chief Minister
had openly said in a press conference and in
his interview with Sri Rajesh Joshi, special
Correspondent of "Out Look" that a criminal
should have no human rights, he should either
be in jail or dead; according to press report as
many as 156 criminals have been killed in
encounter with the police; it is common
knowledge that the State is also prone to
communal disturbances about which this court
should take Judicial notice; the Parliamentary
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
36
Affairs Minister Sri Hukam Singh on
23.7.1998 made a statement on the floor of
the Assembly that the government has taken
a decision that there is no need of constitution
of a State Human Rights Commission for the
reasons mentioned in his speech and hence
this writ petition.

3. This writ petition came up for
consideration before one of us (Binod Kumar
Roy, J) and Hon'ble Mr. Justice R.K.
Mahajan, since retired, on 10.8.98. After
submissions were made by Sri Ravi Kiran
Jain, the learned Senior Counsel appearing on
behalf of the petitioner, time was granted to
Sri. H.R. Misra, Learned Standing Counsel
with an observation, interalia., that the writ
petition is likely to be disposed of at the Stage
of admission itself and that a copy of the
counter affidavit, if any, must be served on
the petitioner by 21.8.98.

4. Counter affidavit was filed on behalf of
Respondent nos. 1 and 2, sworn by Secretary
(Home), Government of U.P. on 21.8.98. It
was stated interalia, therein that the State
attaches utmost importance to the human
rights and a Human Right Cell has been
constituted (I) in the Home Department, and
(ii) in the Police Organisation under the direct
supervision of D.G.P., U.P. and an officer of
the rank of A.D.G. is its Incharge; the State
Government is endeavoring to protect the
fundamental rights and human rights of the
person and is taking all precautions to ensure
that no violation of human rights or abatement
thereof or negligence in the prevention of
such violation by any one should take place;
the State is taking all actions necessary to
prevent the abuse, violation, abatement of
human rights as well as any negligence to
prevention of such violation; it has already
constituted Minority Commission, Backward
Caste Commission and Schedule Caste
Schedule Tribe Commission; any violation of
human
rights
or
abatement thereof or
negligence in the prevention of such violation
with regards to women, minorities, backward
casts, scheduled casts and scheduled tribes are
being enquired into, intervened. Investigated
upon and reviewed; the factors and safe
guards provided by or under the Constitution
or any law for the time being in force and for
protection of rights are being looked into by
the respective Commissions; it is mandatory
for the officer Incharge of any Police Station
to report about every arrest to concerned
District Magistrate, who can make an enquiry
with regard to any arrest with or without
warrant; section 58 of the Code of Criminal
Procedure has sufficient checks on any
violation of human rights in the police
custody; under section 176 of the Code of
Criminal Procedure whenever any death
occurs in police custody or a person dies in a
police encounter a Magisterial enquiry can be
ordered to bring about correct facts; whenever
any report is made under the aforementioned
sections the Magistrate takes all necessary
action in accordance with law to safeguard the
person in police custody and ensures that no
violation of any fundamental right and human
right of the person takes place; enlightened
citizens keep invoking these provisions to
ensure that the human rights are not violated
by
the
police;
and
in
view
of
the
aforementioned facts and circumstances on
16.6.98 the State decided not to constitute the
State Human Rights Commission at this stage,
the constitution of which is also not
mandatory as Act has left a decision to be
taken by the State Government in this regard;
the figures as obtained from the Annual
report 1996-97 of the National Human Rights
Commission showed that 2900 were the
number of total cases registered during199596 and 8728 during 1996-97; the State
Government attaches utmost importance to
maintenance of law and order and the
contention that they are extremely grim is
denied; the Notification dated April 4, issued
by the State Government with a view to
honour the suggestions made by this Court
during the Presidential Rule and the
contention that it was issued on account of '
extremely grim law and order situation' is not
1ALL] People's Union for Civil Liberties V. State of U.P. and others

37
correct; it would be wrong to conclude that
only S.H.R.C. could address to the public
grievance; the popular government would
directly handle all matters relating to violation
of human rights, if any, and through the
legislature, which is the supreme body before
which matters relating to human rights
violation are brought up and debated; beside
Judicial Officers are competent to take
cognizance where someone has suffered due
to wrongful act; rapid rise in the number of
complaints received by the N.H.R.C. is a
pointer of increasing awareness regarding
human rights as well as its activities;
N.H.R.C. is based in Delhi, adjacent to the
State of U.P. which is the most populous and
its citizen find it convenient to address the
grievances to it due to its proximity which is
the prime factor responsible for origin of
maximum complaints; as per Annual Report
1996-97 N.H.R.C U.P. accounts for 42.17%
of total cases out of which 8048 cases (42.8%)
were dismissed in limine during 1996-97 out
of 2722 cases disposed of with directions U.P.
accounted for 56.99% and out of 6503 cases
considered/admitted for disposal during 199697 U.P. accounted for 40.38%; the statements
made in paragraph 37, 38 and 39 (pertaining
to the statements made in a press conference
and
in
the
interview
by
the
Special
Correspondent out Look ) are false and
frivolous and are denied and it is submitted
that the statement should be read with
reference to context " clamping down the
illegal activities of criminals in order to
maintain "law and order" and emphasizes that
the police should not give up its fight against
offenders of law and human rights and in
safeguarding the law abiding citizens; there is
complete communal harmony at present; even
the long standing Shia-Sunni dispute at
Lucknow
has
been
resolved
amicably
recently;
the
direction
of
the
state
Government to the police is to improve law
and order situation by clamping down heavily
on the criminals and to make the society a
safe place for law abiding citizen and in
pursuance of this objective stringent measures
have been taken by the police; in some hot
pursuit there have been exchange of fire
between the police and the criminals in which
at times police men and /or criminals fall
victim which are commonly termed as
'encounter', though it is well within the ambit
of law for the police to fire in exercise of its
right of self-defence and to term this as extra
judicial killings of the criminal is distortion of
fact.

5. To the aforementioned Counter
Affidavit a Rejoinder was filed by the
Petitioner stating following facts:- There has
been concealment of a very material fact that
the Chairperson of National Human Rights
Commission wrote a letter on 30.7.1998
(appended
as Annexure -RA1) to the
Respondent no.2 referring to the Notification
for setting up of a State Human Rights
Commission after taking into consideration of
his suggestions and the view of the Division
Bench of this Court telling that a logical
sequence would have been a final Notification
under section 21 (2) of the Act; the letter
further indicated that substantial percentage of
the complaints received in his office pertain to
this State and a State Commission will
obviate the need for the aggrieved parties to
approach Courts and burden the already heavy
docket of the courts of law; yet another
Division Bench of this Court in Hari Krishna
Maheshwari @ Hari Maheshwari Vs. State of
U.P., 1996 J.I.C. 1034. had made request to
the State Government to constitute a State
Human Rights Commission and Human
Rights Courts as provided under the Act as
early as possible; in a matter like this in which
extremely serious allegations of violation of
human rights were made against him, the
Chief Minister himself should have filed his
counter affidavit; in regard to the press reports
the petitioner shall place the clipping of the
newspapers and news magazine containing
the reports; according to the press report the
greatest form of human rights violations are
occurring in U.P. these day, like of which
might not have been found in any democratic
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
38
country at any point of time in the human
history; in D.K. Basu V. State of West
Bengal, decided by the Supreme Court on
18.12.96, it took judicial notice of the fact that
custodial torture could be ascertained by
reading morning newspapers and High Court
may also take notice of the relevant reports
through press; despite request of National
Human Rights Commission and by this Court
through its two Division Bench judgments the
decision of the State Government not to
constitute a State Human Rights Commission
shows that it has no regard to human rights
and no concept in regard to what the human
rights are and why such a Commission is
required and its disregard in that regard
requires passing of a very severe stricture by
this Court against the present Government.

6. On 25.8.1998 the case was heard
further by the earlier Division Bench, as
stated above comprising one of us. The
learned advocate General came up with a
prayer for adjournment on the ground that
some new facts have been stated in the
Petitioner's Rejoinder. The Bench repeatedly
asked as to whether the State Government has
any real intention to constitute a State Human
Right Commission or not in regard to which
the learned Advocate General took up a stand
that this will require some further consultation
with the Government. The Bench also
reiterated that the Court intends to dispose of
this writ petition at the stage of admission
itself.

7. On 9.9.1998 this case was placed
before a Division Bench consisting one of us
(Binod Kumar Roy, J) and Hon'ble Mr.
Justice J.C. Mishra. The case was heard
directing the State Government to produce the
entire records to know as to what action it has
taken in regard to the directions made by the
Court earlier in the two cases (Uttarakhand
and H.K. Maheshwari) and in regard to the
request made by the chairperson of National
Human Rights Commission. The National
Human Rights Commission was permitted to
be impleaded as Respondent no.3.

8. The case was again listed before the
aforementioned Bench on 22.9.1998 and Sri
Shahshi Kant Agarwal, learned counsel
appearing on behalf of Respondent no. 3
informed the bench that he has instructions to
state that the Chairperson of Respondent no 3.
Has already twice recommended to the state
Government for setting up of a State Human
Rights Commission at Lucknow as also in
districts at the earliest and that Respondent
no.3
stands
by

recommendation
aforementioned made by its Chairperson.

9. On 24.9.1998 the Bench was informed
by the learned Advocate General that the two
Mandamus issued earlier by the Court were
considered by the Cabinet which, however,
took a decision not to constitute a State
Human
Rights
Commission
as
it was
considered not beneficial. On that day an
affidavit was filed, sworn by the Under
Secretary (Home), stating that the letter sent
by the Chairperson of National Human Rights
Commission has not been received. The
learned Advocate General further informed
the Bench that there will be every likelihood
of inclusion of an agenda in the next meetings
of the cabinet for consideration in regard to
the desirability of constitution of a State
Human Rights Commission. In this view of
the matter the case was adjourned noting in its
order dated 24.9.1998 that the letter of the
Chairperson of National Human Rights
Commission has already been reproduced in
Court's order dated 9.9.1998 and since the
Court after pooja holiday will reopen on
5.10.1998 the case is adjourned to 27.10.1998
hoping and trusting that the two mandamus
issued by the Court earlier and the letter of the
Chairperson of National Human Rights
commission shall be considered by the
Cabinet further stating that it is needless to
clarify what the word "considers" means.
1ALL] People's Union for Civil Liberties V. State of U.P. and others

39
10. On 27.10.1998 this case was listed
before a Division Bench comprising M. Katju
and S.L. Saraf, J. but it was directed to be
placed before a Bench of which Hon'ble Mr.
Justice M. Katju is not a member. The then
Hon'ble the Chief Justice vide his order dated
6.11.1998 directed this case to be placed
before a Bench presided over by one of us (
Binod Kumar Roy, J). That is how this case
was placed before this Bench.

11. An affidavit of General Secretary,
Home Department, U.P. Government was
filed stating that the question of desirability of
constituting State Human Rights Commission
was considered in extenso by the State
Cabinet and it was decided that as the existing
institutional frame work for redressal of
human rights related grievances are adequate,
therefore, its constitution is not necessary; and
that pursuant to the aforesaid decision of the
Cabinet, vide Notification no. 2238/6-H.R./98
dated October26,1998 (copy enclosed as
Annexure -1 to this affidavit) the earlier
Notification no. 2254 KHA/6-496 dated April
4,1996 has been rescinded

12. We heard Sri R.K. Jain, learned Senior
counsel in part, who drew our attention to the
fact that the direction in regard to production
of the entire records by the State was not
complied with. His submissions will be
referred to, later. We adjourned this case for
further hearing reiterating the earlier order of
the court for production of the records by the
State.

13. On 16.11.98 the petitioner filed an
application
under
Article
215
of
the
Constitution of India for taking suo motu
action of contempt against Sri Kalyan Singh,
the Chief Minister and his Cabinet colleagues
for the reasons stated in the accompanying
affidavit.

14. On 20.11.98 Sri Yatindra Singh, the
learned Additional Advocate General filed
documents in a sealed cover but indicated that
the State claims privilege and intends to file
an appropriate application supported by an
affidavit.

15. On 1.12.98 an application was filed on
behalf of the State praying to recall the order
summoning the records and uphold the
privilege and protection of the records and for
return of the documents on the grounds inter
alia that apart from the fact that those
documents are not required for decision of
the case, they cannot be looked into in view of
Article 163(3) of the constitution and are also
privileged documents under section 123 of
the Evidence Act. In the affidavit supporting
the said application it has been added that
the records are unpublished official records
relating to the affairs of the State, which
include papers prepared for the submission to
the cabinet for taking a decision about
establishment of the State Human Rights
Commission,
Cabinet
meetings,
Cabinet
papers and high level documents relating to
framing of policy which are confidential as
well as of sensitive nature; and that the public
interest will suffer by their disclosure.

16. An objection was filed by the
petitioner
in
regard
to
the application
aforementioned stating interalia, that it is a
result of an after thought; the claim of
privilege
and
protection
is
manifestly
misconceived; the submission that the public
interest will suffer by the disclosure of the
documents, and as such production is
withheld, is of the deponent of the affidavit
and not based on the legal advice of the
Advocate General or some State Law Officer;
the State has come out for the first time at the
advanced stage of hearing that they are
entitled to privilege; by no stretch of
imagination it can be conceived that the
disclosure of documents will be against
public interest rather non-disclosure of the
documents is injurious to the public interest.

17. Thereafter Sri S.K. Agrawal, learned
counsel for Respondents no.3 was heard on
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
40
4.1.1999 and 5.1.1999. On 5.1.1999 Sri
Agrawal informed us that a writ petition was
filed earlier before the Lucknow Bench of the
Court in this regard but details thereof is not
available with him and he was requested to
furnish details thereof. Sri S.K.Agrawal, had
contended as follows:- The Notification under
section 21(1) of the Act constituting State
Human Rights Commission having been
made, the only issue before this Court was to
command the Government of U.P. to (a)
nominate the Members of the Commission in
terms of section 21(2) of the Act and (b)
appoint necessary staff in accordance with
section 21(3) of the Act and we are very much
competent to issue such a direction. Reliance
in this regard was placed by him on the
observations made by the Supreme Court in
paragraph 631, 734,735 and 1251 to 1253 of
S.P. Gupta Versus Union of India A.I.R 1982
S.C. 149. The direction of this Court in its
order 24.4.1998 for consideration of the
matter has really not been obeyed and the
circumstances clearly unfold the capricious
and
malafide
conduct
of
the
State
Government. In the garb of consideration of
the issues it was not open for the Government
to recall the Notification constituting the State
Human Rights Commission itself inasmuch as
the Court never meant nor had it permitted the
government to do so. National Human Rights
Commission stands by every word written
through its Chairperson to the Chief Minister
advising him for constitution of State Human
Rights Commission which, if constituted,
would even reduce the workload of the High
Court in entertaining writ petitions concerning
the subjects touching human rights. The claim
of privilege was made by the State much after
passing the order for production of the
documents so that we could not peruse them
through the affidavit which is not in terms
of the decisions of the Supreme Court in State
of Punjab V Sodhi Sukhedeo Singh A.I.R.
1961 S.C. 493 and Amar Chand Butail A.I.R.
1964 S.C. 1658. It does not involve any policy
decision but the matter being of considerable
public importance touching the constitutional
safeguards provided to its citizens as well as
non-citizens both, it would be in the interest
of Justice to overrule the privilege and peruse
the records so as to find out as to whether the
stand taken by Respondent nos. 1 and 2 are
borne out of the records and are correct or not.
The explanation given in the Counter are
merely eye-wash and highly capricious.

18. Thereafter Sri Yatindra Singh, learned
Additional Advocate General was heard. The
learned Additional Advocate General, on the
other hand, contended as follows:- The
reasons advanced for non constitution of State
Human Rights Commission are valid; though
the State has no objection to the perusal of
the records, which were produced but
nevertheless privilege is being claimed
having regards to the sensitivity etc.; It is a
question of policy which is neither arbitrary
nor unreasonable hence it cannot be quashed
by placing reliance on K.Kakkanath V State
of A.I.R. 1997 S.C. 128; Indian Railways V.
D.R.T.S.A. 1993 Supp. (4) S.C.C. 474 and
State of Punjab V R.L. Bagga 1998 (4) S.C.C.
117. The High Court cannot issue a
Mandamus for constitution of State Human
Rights Commission which is a policy matter
of the Government. Reliance was placed on
A.K. Roy V. Union of India A.I.R. 1982 S.C.
710; Aeltemesh Rein Vs. Union of India 1988
(4) S.C.C. 54 (=A.I.R. 1988 S.C.1768); Bar
Counsel of U.P. V. Union of India 1997 (3)
U.P.L.B.E.C. 1551; Misbah Alam Sheikh V.
State of Maharashtra 1997 (4) S.C. C.528 and
Tata Cellular V. Union 1994 (6) S.C.C. 651.
No reliance can be placed on the newspaper
report which are inadmissible. No contempt
was committed by the Chief Minister Sri
Kalyan Singh or his Cabinet colleagues and
the
contempt
petition
being
thoroughly
misconceived
is
fit
to
be
dismissed
summarily.

19. By 12.1.1999 Mr. Jain concluded his
replies who also pressed the petition filed for
initiation of proceedings in contempt against
the cabinet including the Chief Minister of the
1ALL] People's Union for Civil Liberties V. State of U.P. and others

41
State. He also addressed us in regard to the
petition
dated
12.1.1999
filed
for
impleadment of Sri Kalyan Singh as one of
the respondents 'for the facts and reasons
disclosed in the accompanying affidavit' but
without serving a copy on Sri. H.P. Misra,
learned Standing Counsel for the State and
the
Chief
Minister.
In
the
affidavit
accompanying
the
application
seeking
impleadment reference was made to several
killings in the State and several X-rox copy of
paper clippings were also produced and
referred to.

20. The judgement was reserved by us on
12.1.1999. Thereafter we tried our level best
to locate the reference of the case said to
have been filed before the Lucknow Bench
but could not succeed partly due to the
reason that Sri S.K. Agrawal, learned counsel
for Respondent no.3 was elevated to the
Bench in February, 1999. Thereafter we learnt
from newspapers that some of the aspects
touching this case had been pressed before
another Bench by Sri Jain and in another writ
petition before the Lucknow Bench. Before
we could deliver the judgement Sri Jain
desired to be heard further and the case was
brought up for further hearing giving further
opportunities to him as well as learned
Advocate General.

20.1 Sri Jain contended interalia that as
serious allegations have been made by the
Petitioner
against
the
Chief
Minister
Respondent no. 2 in view of the decision of
the Supreme Court in R.P Kapoor V. Sardar
Pratap Singh Kairon A.I.R. 1961 S.C. 1117,
he owed a duty to file an affidavit stating the
correct position regarding the allegations and
not to leave their refutation to the Secretary
of the Departments who could speak only
from the Records and thereby the allegations
be accepted by us; that the Commissions
referred to by the Learned Advocate General/
Additional Advocate General are no substitute
of State Human Rights Commission at all,
which has to consist of a former Chief Justice
of a High Court, a member who has been or is
a Judge of a High Court, another Member
who has been or is a District Judge of our
State and two Members to be appointed from
amongst persons having knowledge of, or
practical experience in matters relating to
human rights and thereby an expert body. At
the time when this Court had passed its order
for production of records no privilege was
claimed; nothing has been produced by
Respondent nos. 1 and 2 to show that the two
requests made earlier by the Court and the
interim Mandamus issued even by us have
been 'considered'. The attitude of Respondent
no.2 the Chief Minister from his statements
that criminals have no rights etc. made to the
journalists from time to time, which are on
the record, and which were not denied by
filing of any counter by him personally, is
crystal clear that he and/or his government
does not want to fulfil the legislative
intention enshrined in Section 21 of the Act
by
constituting
State
Human
Rights
Commission. Even resort to falsehood has
been taken in the Counter filed on behalf of
Respondents nos.1 and 2 in stating that since
the decision was taken to constitute State
Human Rights Commission at a time when
the popular government was not in power but
when the state was under the presidential Rule
inasmuch as after the decision taken by the
Government, had in fact taken a decision for
constitution
of
State
Human
Rights
Commission which because of mere obstinity
of Sri Kalyan Singh is not being followed up
to its logical end. The defence taken in regard
to financial crunch is also of no significance
at all because the Chief Minister has formed a
Zumbo Cabinet burdening the State exchequer
unnecessarily and the attitude of the State
Government in regard to non-constitution is
apparently callous and condemnable. He is
seriously pressing the petitions filed for
initiating proceedings in contempt against the
then Chief Minister Sri Kalyan Singh and his
Cabinet colleagues as well as the application
seeking impleadment of the former.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
42
21. The learned Advocate General
appearing on behalf of Respondent Nos. 1 & 2
repeated the arguments made earlier by Sri
Yatinder
Singh,
the
learned
Additional
Advocate General, who in the meantime was
elevated to the Bench. He contended that no
contempt was committed by the then Chief
Minister and his cabinet colleagues. The
petition seeking impleadment of the Chief
Minister is infructuous due to his resignation
and formation of the new Government under
the Chief Ministership of Sri Ram Prakash
Gupta which, however, is of the same view in
regard to non constitution of S.H.R.C.. he
informed us that under section 30 of the Act
almost in every district Human Rights Courts
have been established. In this regard Sri Jain
took up a stand that those courts are not
functional, to which the learned Advocate
General stated that those courts will be made
functional expeditiously even by specifying
the
Special
Public
Prosecutors
as
contemplated under section 31 of the Act.

22. Our Findings :-

22.1
The purpose of the Act reads thus:-
"An Act to provide for the constitution of a
National Human Rights Commission, State
Human Rights Commissions in States and
Human Rights Courts for better protection of
human rights and for matters connected
therewith or incidental thereto."

From this the intention of the Parliament
is crystal clear that S.H.R.C. is for better
protection of human rights.

22.2
Section 12 of the Act enumerates
the functions of the commission, which reads
as follows:- "Functions of the Commission -
The Commission shall perform all or any of
the following functions, namely: -

(a) inquire, suo motu or on a petition
presented to it by a victim or any person on
his behalf, into complaint of -
(i) violation of human rights or abetment
thereof; or
(ii) negligence in the prevention of such
violation,
by a public servant;

(b) intervene in any proceedings involving
any allegation of violation of human rights
pending before a court with the approval of
such court;
(c) visit, under intimation to the State
Government, any jail or any other institution
under the control of the State Government,
where persons are detained or lodged for
purposes
of
treatment,
reformation
or
protection to study the living conditions of the
inmates and make recommendations thereon;

(d) review the safeguards provided by or
under the constitution or any law for the time
being in force for the protection of human
rights and recommend measures for their
effective implementation;

(e) review the factors, including acts of
terrorism, that inhibit the enjoyment of human
rights and recommend appropriate remedial
measures;

(f) Study treaties and other international
instruments on human rights and make
recommendations
for
their
effective
implementation;

(g) undertake and promote research in the
field of human rights;

(h) Spread human rights literacy among
various sections of society and promote
awareness of the safeguards available for the
protection
of
these
rights
through
publications, the media, seminars and other
available means;
(i) encourage the efforts of non-government
organisations and institutions working in the
field of human rights;

(j) such other functions as it may consider
necessary for the promotion of human rights.
1ALL] People's Union for Civil Liberties V. State of U.P. and others

43
22.3
Section 13 of the Act states the
powers of the Commission relating to the
enquiries into the complaints made under the
Act and section 14 confers powers on it to
utilise the services of any officer or
investigating agency of the State with its
concurrence, as the case may be.

22.4
Sections 21 of the Act deals with the
constitution
of
State
Human
Rights
Commission, which reads thus :-

"Constitution of State Human Rights
Commission - (1) A state Government may
constitute a body to be known as .....( name
of the State ) Human Rights Commission to
exercise the powers conferred upon, and to
perform the functions assigned to, a State
Commission under this Chapter.

(2.) The State Commission shall consist of --
(a) a chairperson who has been a Chief
Justice of High Court;
(b) One Member who is, or has been, a
Judge of a High Court;
(c) One members who is, or has been, a
district Judge in that State;
(d) Two members to be appointed from
amongst experience in, matters relating to
human rights.

(3) There shall be a Secretary who shall be
the chief Executive Officer of the state
Commission and shall exercise such powers
and discharge such functions of the State
Commission as it may delegate to him.
(4) The
headquarters
of
the
State
Commission shall be at such place as the
State Government may, by notification,
specify.
(5) A State Commission may inquire into
violation of human rights only in respect of
matters relatable to any of the entries
enumerated in List II and List III in the
Seventh Schedule to the Constitutions:

Provided that if any such matter is already
being inquired into by the Commission or any
other Commission duly constituted under any
law for the time being in force, the State
Commission shall not inquire into the said
matter:

Provided further that in relation to the
Jammu
and
Kashmir
human
Rights
Commission, this sub- section shall have
effect as if that for the words and figures 'list
II and List III in the Seventh Schedule to the
Constitution", the words and figures " List III
in the Seventh Schedule to the Constitution as
applicable to the State of Jammu and
Kashmir and in respect of matter in relation to
which the Legislature of that State has power
to make laws" had been substituted".

The Supreme Court in Premjit Kaur V.
State of Punjab J.T. 1998 (6) S.C.338 had
held N.H.R.C. to be a unique expert body in
itself which is also a body sui juris created
under the Central Act for examining and
investigating the question and complaints
relating to violation of human rights, as also
the negligence on the part of any public
servant in preventing such violation. In our
view the same distinction has to be conferred
on S.H.R.C. also.

22.5
Section 22 of the Act deals with the
appointment of the Chairperson and other
members
of
the
State
Human
Rights
Commission on the recommendation of a
committee consisting of persons enumerated
therein, which reads thus :-
"Appointment of Chairperson and other
members of the State Commission - (1)
The Chairperson and other Members shall
be appointed by the Governor by warrant
under his hand and seal :

Provided that every appointment under this
sub-section shall be made after obtaining the
recommendations of a Committee consisting
of, -

(a) the Chief Minister
- Chairperson;
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
44
(b) Speaker of the Legislative Assembly-
Member
(c) Minister in-charge of the Department of
Home in that State Member
(d) Leader of the opposition in the legislative
Assembly - Member

Provided further that where there is a
Legislative council in a State, the Chairperson
of that Council and the Leader of the
Opposition in that Council shall also be
members of the Committee:

Provided also that no sitting Judge of a
High Court or a sitting district judge shall be
appointed except after consultation with the
Chief Justice of the High Court of the
concerned state.

(2) No appointment of a Chairperson or a
Member of the State Commission shall be
invalid merely by reason of any vacancy in
the committee."

22.6
Section 29 of the Act talks of
jurisdiction/power of the S.H.R.C. to deal
with complaints by applying Sections 9,10 &
12 to 18 with suitable modification.

23. We take up Prayer no.2 of the petitioner
first in view of the stand taken regarding
Section 30 of the Act.

23.1 In view of the fair Stand of the learned
Advocate General noted in paragraph no.21
supra we dispose of prayer no.