# DILIP K. BASU v. STATE OF WEST BENGAL & ORS

- **Citation:** [2015] 7 S.C.R. 814
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Crl. M. P. No. 16086of1997
- **Bench:** T.S. Thakur, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dilip-k-basu-v-state-of-west-bengal-ors-30945
- **Pages:** 39

## Headnote

Human rights - Violation of - Instances of custodial
c deaths and torture in police station and jails -
Recommendation by Amicus Curiae to curb these -
Issuance of certain directions by this Court- States of Delhi,
Himachal Pradesh, Mizoram, Arunachal Pradesh,
Meghalaya, Tripura and Nagaland to set up State Human
D Rights Commissions(SHRC) for their respective territories
· within a period of six months- Vacant post of Chairperson or
Member of SHRC to be filled up by State Governments within
a period of three months - State Governments to take
appropriate action in terms of s. 30 in regard to setting up/
E specifying Human Rights Courts - Direction issued to State
Governments to install CCTV cameras in all the prisons
within one year - States to consider installation of CCTV
cameras in police stations- State Governments to take steps
to appoint non-official visitors to prisons and police stations
F - State Governments to launch appropriate prosecution for
the commission of offences disclosed by such enquiry report
and/or investigation -And that each police station to have at
least two women constables - Protection of Human Rights
Act, 1993-ss. 21, 30.
'
G
Disposing of the petitions, the Court
HELD: 1.1 On examining the scheme of the
legislation and the provisions of s.21 of the Protection
of Human Rights Act, 1993, the following brpad features
H emerge that the Act is aimed at providing an efficacious
814
DILIPK. BASU v. STATEOFWESTBENGAL&ORS.
815
and transparent mechanism for prevention of violation A
of human .. nghts both at national level as also at the state
level; ·that the National Human Rights Commission is
vested with the powers and functions set out in Chapter111 of comprising Sections 12 to 16 of the Act. While in
relation to State Human Rights Commissions similar B
provisions of Sections 9, 10, 11, 12, 13, 14, 15 to 18 apply
mutatis mutandis subject to certain modifications
referred to in clauses (a) to (d) of the said provision. This
implies that the powers exercisable by the State
Commissions under the said provisions are pari materia C
with the powers exercisable by the National Human
Rights Commission; and that while Section 3 does use
the word 'shall' in relation to the constitution of a National
Human Rights Commission, the absence of a similar 0
expression in Section and the use of the word 'may'
makes little difference as the scheme of the Act and the
true intention underlying the legislation is to be
determined by the Court depending upon whether the
power was coupled with a duty to exercise the same or E
was conferment of power simpliciter. [Para 13) (837-DH; 838-A-B]
. '
Sardar Govind Rao and Ors. v. State of Madhya Pradesh
AIR 1965 SC 1222 : 1965 SCR 678; The Official
Liquidatorv. Dharti Ohan Pvt. Ltd. 1977 (2) SCR 964:
(1977) 2 SCC 166; N.D. Jayal andAnr. v. Union of/ndia
and Ors. 2003 (3) Suppl. SCR 152: (2004) 9 SCC 362;
Manushkhlal Vithaldas Chauhan v. State of Gujarat
1997 (3) Suppl. SCR 705: (1997) 1 sec 622;
Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur
and Anr. 2008 (2) SCR 424: (2008) 12 SCC 372 -
referred1o:· ,
·
Julius v. Bishop of Oxford (1880) 5 AC 214- referred
to.
F
G
H
816
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SUPREME COURT REPORTS
[2015] 7 S.C.R.
1.2 The power of the State Governments under
Section·21 to set-up State Human Rights Commission
in their respective areas/territories is not a power
simpliciter but a power coupled with the duty to exercise
such power especially when it is not the case of anyone
B of the defaulting States that there is no violation of
human rights in their territorial limits. The fact that Delhi
has itself reported the second largest number of cases
involving human rights cases would belie any such claim
even if it were made. It is not the case of the NorthC Eastern States where such Commissions have not been
set-up that there are no violations of Human Rights in
those States. The fact that most if not all the States are
affected by ethnic and other violence and extremist
D activities calling

## Text

_Characters 0–39,959 of 72,552. This is a partial read: ask again with offset=39959 for what follows._

[2015) 7 S.C.R. 814
A
DILIP K. BASU
v.
STATE OF WEST BENGAL & ORS.
B
(Crl. M. P. No.16086of1997 in Crl. M. P. NO. 4201of1997)
JULY24, 2015
[T.S. THAKUR AND R. BANUMATHI, JJ.]
Human rights - Violation of - Instances of custodial
c deaths and torture in police station and jails -
Recommendation by Amicus Curiae to curb these -
Issuance of certain directions by this Court- States of Delhi,
Himachal Pradesh, Mizoram, Arunachal Pradesh,
Meghalaya, Tripura and Nagaland to set up State Human
D Rights Commissions(SHRC) for their respective territories
· within a period of six months- Vacant post of Chairperson or
Member of SHRC to be filled up by State Governments within
a period of three months - State Governments to take
appropriate action in terms of s. 30 in regard to setting up/
E specifying Human Rights Courts - Direction issued to State
Governments to install CCTV cameras in all the prisons
within one year - States to consider installation of CCTV
cameras in police stations- State Governments to take steps
to appoint non-official visitors to prisons and police stations
F - State Governments to launch appropriate prosecution for
the commission of offences disclosed by such enquiry report
and/or investigation -And that each police station to have at
least two women constables - Protection of Human Rights
Act, 1993-ss. 21, 30.
'
G
Disposing of the petitions, the Court
HELD: 1.1 On examining the scheme of the
legislation and the provisions of s.21 of the Protection
of Human Rights Act, 1993, the following brpad features
H emerge that the Act is aimed at providing an efficacious
814
DILIPK. BASU v. STATEOFWESTBENGAL&ORS.
815
and transparent mechanism for prevention of violation A
of human .. nghts both at national level as also at the state
level; ·that the National Human Rights Commission is
vested with the powers and functions set out in Chapter111 of comprising Sections 12 to 16 of the Act. While in
relation to State Human Rights Commissions similar B
provisions of Sections 9, 10, 11, 12, 13, 14, 15 to 18 apply
mutatis mutandis subject to certain modifications
referred to in clauses (a) to (d) of the said provision. This
implies that the powers exercisable by the State
Commissions under the said provisions are pari materia C
with the powers exercisable by the National Human
Rights Commission; and that while Section 3 does use
the word 'shall' in relation to the constitution of a National
Human Rights Commission, the absence of a similar 0
expression in Section and the use of the word 'may'
makes little difference as the scheme of the Act and the
true intention underlying the legislation is to be
determined by the Court depending upon whether the
power was coupled with a duty to exercise the same or E
was conferment of power simpliciter. [Para 13) (837-DH; 838-A-B]
. '
Sardar Govind Rao and Ors. v. State of Madhya Pradesh
AIR 1965 SC 1222 : 1965 SCR 678; The Official
Liquidatorv. Dharti Ohan Pvt. Ltd. 1977 (2) SCR 964:
(1977) 2 SCC 166; N.D. Jayal andAnr. v. Union of/ndia
and Ors. 2003 (3) Suppl. SCR 152: (2004) 9 SCC 362;
Manushkhlal Vithaldas Chauhan v. State of Gujarat
1997 (3) Suppl. SCR 705: (1997) 1 sec 622;
Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur
and Anr. 2008 (2) SCR 424: (2008) 12 SCC 372 -
referred1o:· ,
·
Julius v. Bishop of Oxford (1880) 5 AC 214- referred
to.
F
G
H
816
A
SUPREME COURT REPORTS
[2015] 7 S.C.R.
1.2 The power of the State Governments under
Section·21 to set-up State Human Rights Commission
in their respective areas/territories is not a power
simpliciter but a power coupled with the duty to exercise
such power especially when it is not the case of anyone
B of the defaulting States that there is no violation of
human rights in their territorial limits. The fact that Delhi
has itself reported the second largest number of cases
involving human rights cases would belie any such claim
even if it were made. It is not the case of the NorthC Eastern States where such Commissions have not been
set-up that there are no violations of Human Rights in
those States. The fact that most if not all the States are
affected by ethnic and other violence and extremist
D activities calling for curbs affecting the people living in
those areas resulting, at times, in the violation of their
rights cannot be disputed. Such occurrence of violence
and the state of affairs prevailing in most of the States
cannot support the submission that no commissions are
E required in those States as there are no human rights
violations of any kind whatsoever. [Para 15] [839-C-F]
1.3 Human rights violations in the States that are
far removed from th~ NHRC headquarters in Delhi itself
makes access to justice for victims from those States
F an illusion. While theoretically it is possible that those
affected by violation of human rights can approach the
NHRC bY. addressing a complaint to the NHRC for
redressal, it does not necessarily mean that such access
to justice for redressal of human rights violation is
G convenient for the victims from the States unless the
States have set-up their own Commissions that would
look into such complaints and grant relief. Access to
justice so much depends upon the ability of the victim
H to pursue his or her grievance before the forum
DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
817
competent to grant relief. North-Eastern parts of the A
country are mostly inhabited by the tribal&. Such regions
cannot be deprived of the beneficial provisions of the
Act simply because the States are small and the settingup of commissions in those states would mean financial
burden for the exchequer. Even otherwise there is no B
real basis for the submission that financial constrains
prevent these States from setting-up their own
Commissions. At any rate, the provisions of Section 21 (6)
clearly provide for two or more State Governments
setting-up Commissions with a common Chairperson C
or Member. Such appointments may be possible with the
consent of Chairperson or Member concerned but it is
nobody's case that any attempt had in that direction been
made butthe same had failed on account of the persons 0
concerned not agreeing to take up the responsibility visa-vis the other State. It is a matter of regret that despite
the National Human Rights Commission itself strongly
and repeatedly recommending setting-up of State
Commission in the States the same have not'been setE
up. [Para 17, 21) [840-F-H; 841-A-D; 845-C·E).:
1.4 In terms with the recommendations of the
Amicus Curiae the following directions are issued:
(i) The States of Delhi, Himachar Pradesh, F
Mizoram, Arunachal Pradesh, Meghalaya, Tripura and
Nagaland shall within a period of six months from today
set up State Human Rights Commissions for their
respective territories with or without resort to provisions
of Section 21(6) of the 1993Act
G
(ii) All vacancies, for the post of Chairperson or
the Member of SHRC wherever they exist at present shall
be filled up by the State Governments concerned within
a period of three months from today.
H
818
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A
(iii) Vacancies occurring against the post of
B
Chairperson or the Members of the SHRC in future shall
be filled up as expeditiously as possible but not later
than three months from the date of such vacancy
occurs.
(iv) The State Governments shall take appropriate
action in terms of Section 30 of the 1993Act, in regard to
setting up/specifying Human Rights Courts.
(v) The State Governments shall take steps to
C install CCTV cameras in all the prisons in their respective
States, within a period of one year from today but not
later than two years.
(";.i) The State Governments shall also consider
0
installa~ion of CCTV cameras in police stations in a
phased manner depending upon the incidents of human
rights violation reported in such stations.
(vU) The State Governments shall consiqer
appointment of non-official visitors to prisons and police
E stations in terms of the relevant provisions of the Act
wherever they exist in the Jail Manuals or the relevant
Rules and Regulations.
(viii) The State Governments shall launch in all
cases where an enquiry establishes culpability of the
F persons in whose custody the victim has suffered death
or injury, an appropriate prosecution for the commission
of offences disclosed by such enquiry report and/or
investigation in accordance with law.
G
(ix) The State Governments shall consider
deployment of at least two women constables in each
police station wherever such deployment is considered
necessary having regard to the number of women taken
for custodial interrogation or interrogation for other
H purposes over the past two years. [Paras 21, 31] [851-
DILIPK. BASU v. STATEOFWESTBENGAL.&ORS.
819
B-H; 852-A-D; 845-D)
A
D.K. Basu etc. v. State of West Bengal etc. 1!96 (10)
Suppl. SCR 284: (1997) 1SCC416; JoginderKumar
v. State of U.P and Ors. (1994) 4 SCC 260; Smt. Nilabati
Behera alias Lalita Behera v. Staie of Orissa and
.
.
B
Ors.1993 (2) SCR 581: (1993) 2 sec 746; State-o(M.P
v. Shyamsunder Trivedi and Ors. 1995 (1) Suppl.
SCR 44: (1995) 4 SCC 262; Di/ip K. Basu v. State of
WB. and Ors. 1997 (3) Suppl. SCR 219: (1997) 6 SCC
642; Dilip K. Basu v. State of WB. and Ors. (1998) 9
c
SCC 437; Di/ip Kumar Basu v. State of WB. and Ors.
(1998) 6 SCC 380; Dilip K. Basu and Ors.~ v. State of
WB. and Ors. (2002) 10 sec 741; Dilip K._B<j1su and
Ors. v. State ofWB. and Ors. (2003) 11SCC723; Dilip
K. Basu and Ors. v. State of WB. and Ors. (2003) 11
D
SCC 725; Dilip K. Basu v. State of WB. and or5: (2003)
12 SCC 17 4; lmtiyaz Ahmad v. State of Uttar Pradesh
and Ors. 2012 (1) SCR 779: (2012) 2 SCC 688 -
referred to.
.. -
Case Law Reference
.1;
E
,. ,c1996 (10) Suppl. SCR 284
referred to.
Para 1
(1994) 4 sec 260
referred to.
··Para 1
. I
1993 (2) SCR 581
referred to.
1r1\Para 1
F
1995 (1) Suppl. SCR 44
referred to.
Para 1
1997 (3) Suppl. SCR 219
referred to.
Para 3
.;.,....,_:
(1998) 9 sec 437
referred to.
Para 3
(1998) 6 sec 380
referred to.
Para 3
G
(2002) 10 sec 741
referred to.
Para 3
(2003) 11 sec 123
referred to.
Para 3
(2003) 11 sec 125
referred to.
Para 3
(2003) 12 sec 114
referred to.
Para 3
H
820
A
B
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SUPREME COURT REPORTS
[2015] 7 S.C.R.
1965 SCR 678
referred to.
Para 10
1977 (2) SCR 964
referred to.
Para 10
2003 (3) Suppl. SCR 152
referred to.
Para 11
1997 (3) Suppl. SCR 705
referred to.
Para 11
2008 (2) SCR 424
referred to.
Para 11
2012 (1) SCR 779
referred to.
Para 16
CRIMINAL ORIGINAL JURISDICTION : Crl. M. P. No.
16086of1997 in Crl. M. P. No. 4201of1997.
Under Article 32 of the Constitution of India
WITH
Crl. M. P. No. 4201OF1997, 4105 OF 1999, 2600 OF
D 2000, 2601' OF 2000, 480 OF 2001, 3965, 10385 OF 2002,
12704 OF 2001, 19694of2010 in Crl. M.P. No. 4201of1997,
Crl. M.P. No. 13566of2011 in Crl. M. P. No. 16086of1997 in .
Crl. M. P. No. 4201 of 1997, Crl. M.P. No. 15490 of 2014 &
15492 of 2014 in Writ Petition (Crl.) No. 539of1986.
E
A. Mariaputham,AG, K. Radhakrishnan, Gaurav Bhatia,
Manjit Singh, Suryanarayana Singh, V. Madhukar, AAGs, Dr.
Abhishek Manu Singhvi (AC.), Pranab Kumar Mullick, Soma
Mullick, Amit Bhandari, Suruchii Aggarwal, Sushma
F Manchanda; Roshni Malhqtra, Sushma Suri, P.K. Dey, T.A.
Khan, M. Khairati, B.V. Balaram Das, S.A. Siddiqui, Gunwant
Dara, S.K. Mishra, D.S. Mahra, Ravi P. Mehrotra, Ashutosh
Kr. Sharma,::Gopal Prasad, Jayesh Gaurav, Ranjan Mukherjee,
S.C. Ghosh, S. Bhowmick, Soumi Guha, C.D. Singh, Sakshi
G Kakkar, Gopal Singh, Manish Kumar, Chandan Kumar, Ritu
Raj Biswas, Vimla Sinha, Nupur Choudhary, Vivekta Singh,
Kamal Mohan Gupta, Aruna Mathur, Yusuf Khan (for Arputham
Aruna & Co.), Riku Sarma, Navnit Kumar, Corporate Law
Group, Pragyan Pradip Sharma, Nitesh Kumar, P.V.
H Yogeswaran,Ashok Panigrahi, Santosh Kumar,Ashmi Mohan,
DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
821
Guntur Prabhakar, Prema Singh, V.G Pragas~m. S.J .. Aristotle, A
Prabu Ramasubramanian, Ruchi Kohli, Nidhi Jaswal, Anil
Srivastav, Pragati Neekhra, Sapam Biswajit Meitei, Ashok
Kumar Singh, Z.H. Isaac Haiding, Kh. Nobin Singh, Anip
Sachthey, Mohit Paul, Anvita Cowshish, Mohit Cowshish, Kuldip
Singh, M. Yogesh Kanna, Santha K., Bina Madhavan, S. Udaya B
Kumar Sagar, Krishan Kr. Singh, K. Enatoli Serna, Amit Kumar
Singh, Balaji Srinivasan, Asha G. Nair, Preshit Sureshe, A.P.
Mayee, K. V. Jagdishvaran, G. Indira, Ashutosh Kr. Sharma,
Jatinder Kumar Bhatia, V. N. Raghupathy, Parikshit P. Angadi, C
Abhijit Sengupta, Ajay Pal, Anil K. Jha, Ansar Ahmad
Chaudhary, Anuvrat Sharma, Balaji Srinivasan, G Prakash,
Gunnam Venkateswara Rao, Javed Mahmud Rao, K. R.
Sasiprabhu, Manish Kumar Saran, Naresh K. Sharma, Pravir
Choudhary, P. V. Dinesh, Ratan Kumar Chaudhuri, Ravi 0
Prakash Mehrotra, Sanjay R. Hegde, D. Bharathi Reddy, Sunil
Fernandes, T.C. Sharma, T. Harish Kumar, T. V. Ratnam, Indra
Sawhney, Kamini Jaiswal for the appearing parties,.
The Judgment of the Court was delivered byT. S. THAKUR, J. 1. In D. K. Basu etc. v. State of E
West Bengal etc.1 [D.K. Basu (1)] this Court lamented the
growing incidence of torture and deaths in police custody. This
Court noted that although violation of one or the other of the
human rights has been the subject matter of, several F
Conventions and Declarations and although commitments have
been made to eliminate the scourge of custodial torture yet
gruesome incidents of such torture continue unabated. The
court described 'custodial torture' as a naked violation of human
dignity and degradation that destroys self esteem of the victim G
and does not even spare his personality. Custodial torture
observed the Court is a calculated assault on human dignity
and whenever human dignity is wounded, civilisation takes a
step backwards. The Court relied upon the Report of the Royal
1 (1997) 1sec416
H
822
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Commission on Criminal Procedure and the Third Report of
the National Police Commission in India to hold that despite
recommendations for banishing torture from investigative
system, growing incidence of torture and deaths in police
custody come back to haunt. Relying upon the decisions of
· B this Court in Joginder Kumar v. State of U. P. and Ors. 2;
Smt Nilabati Behera alias Lalita Behera v. State of Orissa
and Ors. 3; State of M. P. v. Shyamsunder Trivedi and Ors. 4;
and the 1131h report of the Law Commission of India
recommending insertion of Section- 114-B in the Indian
C Evidence Act, this Court held that while the freedom of an
individual must yield to the security of the State, the right to
interrogate the detenus, culprits or arrestees in the interest of
the nation must take precedence over an individual's right to
0 personal liberty. Having said that the action -of the State:
observed this Court, must be just and fair. Using any form of
torture fQ_r extracting any kind of information would neither be
right nor just or fair, hence, impermissible, and offensive to
Article 21 of the Constitution. A crime suspect, declared the
E court, may be interrogated and subjected to sustained and
scientific interrogation in the manner determined by the
provisions of law, but, no such suspect can be tortured or
subjected to third degree methods or eliminated with a view
to eliciting information, extracting a confession or deriving
F knowledge about his accomplices, weapons etc. His
constitutional right cannot be abridged except in the manner
permitted by law, though in the very nature of things there would
be a qualitative difference in the method of interrogation of
such a person as compared to an ordinary criminal. State
G terrorism declared this Court is no answer to combat terrorism.
It may only provide legitimacy to terrorism, which is bad for the
State and the community and above all for the rule of law. Having
said that, the Court issued the following directions and
2 (1994) 4 sec 260
H
3 (1993) 2 sec 746
4 (1995) 4 sec 262
DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
[T. S. THAKUR, J.]
guidelines in all cases of arrest and/or detention:
"35. We therefore, consider it appropriate to issue the
following requirements to be followed in a!/ cases of
affest or detention till legal provisions are made in that
behalf as preventive measures:
(1) The police personnel carrying out the arrest and
handling the interrogation of the affestee should bear
accurate, visible and clear identification and name
togs with their designations. The particulars of all
such police personnel who handle interrogation of
the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of
the arrestee shall prepare a memo of arrest at the
time of arrest a such memo shall be attested by _
at/east one witness who may be either a member of
the family of the affestee or a respectable person of
the locality from where the arrest is made. It shall
also be counter signed by the arrestee and shall
contain the time and date of arrest.
(3) A person who has been arrested or detained and
is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled
to have one friend or relative or other person known
to him or having interest in his welfare being
informed, as soon as practicable, that he has been
arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
( 4) The time, place of arrest and venue of custody of
an affestee must be notified by the police w~ere the
next friend or relative of the arrestee lives outside
the district or town through the legal Aid Organisation
in the District and the police station of the area
823
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824
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SUPREME COURT REPORTS
[2015] 7 S.C.R.
concerned telegraphically within a period of 8 to 12
hours after the arrest.
(5) The person arrested must be made aware of this
right to have someone informed of his arrest or
detention as soon he is put under arrest or is
detained.
(6) An entry must be made in the diary at the place
of detention regarding the arrest of the person which
shall also disclose the name of he next friend of the
person who has been informed of the arrest and the
names and particulars of the police officials in whose
custody the arrestee is.
(7) The arrestee should, where he so requests, be
also examined at the time of his arrest and major
and minor injuries, if any present on his/her body,
must be recorded at that time. The "Inspection
Memo" must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided
to the arrestee.
(8) The arrestee should be subjected to medical
examination by trained doctor every 48 hours during
his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health
Services of the concerned Stare or Union Territory.
Director, Health Services should prepare such a
penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo
of arrest, referred to above, should be sent to the
illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his
lawyer during interrogation, though not throughout the
interrogation.
·DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
[T. S. THAKUR, J.]
(11) A police control room should be provided at all
district and state headquarters, where information
regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be
displayed on a conspicuous notice board."
,,
825
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2. This Court also examined whether compensation
could be awarded and declared that pecuniary compensation
was permissible in appropriate cases by way of redressal upon c
proof of infringement of f1,mdamental rights of a citizen by the
public servants and that the State was vicariously liable for
their acts. The Court further held that compensation was
payable on the principle of strict liability to which the defence
of sovereign immunity was not available and that the citizen D
must receive compensation from the State as he/she has a
right to be indemnified by the government.
3. D.K. Basu(1) was followed by seven subsequent
orders reported in Dilip K. Basu v. State of W.8. and Ors. 5;
E
Dilip K. Basu v. State ofW.B. and Ors. 6; Dilip Kumar Basu
v. State of W.B. and Ors. 7; Dilip K. Basu and Ors. v. State
of W.B. and Ors. 8; Dilip K. Basu and Ors. v. State of W.B.
and Ors. 9; Dilip K. Basu and Ors. v. State of W.B. and Ors. 10;
and Dilip K. Basu v. State of W.B. and Ors. 11• All these orders F
were aimed at enforcing the implementation of the directions
issued in D.K. Basu(1). It is not, in our view, necessary to
refer to each one of the said orders for observations made
therein and directions issued by this Court simply show that
this Court has pursued the matter touching enforcement of the G
directions with considerable perseverance.
5 (1997) s sec 642
s (1998) 9 sec 437
1 (1998) s sec 380
8 (2002) 10 sec 141
9 (2003) 11 sec 123
1 o (2003) 11 sec 125
11 (2003) 12 sec 174
H
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SUPREME COURT REPORTS '
[2015] 7 S.C.R.
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· 4. What falls for consideration before us at present are
the prayers made in Crl.M.P. No.15492 of 2014 filed by Dr.
Abhishek Ma nu Singhvi, Senior Advocate, who was appointed
Amicus Curiae in this case. The Amicus has, in the said
application, sought further directions from this Court in terms
B of Paras 1 O(A) to 10(0) of the said Crl. M. P. When the
application initially came-up for hearing before this Court on
51h August, 2014, we gave a final opportunity to the
respondents-States to respond to the prayers made in the
same. We, at the same time, requested Dr. Singhvi to identify
C areas that need attention and make _specific recommendations
for consideration of this Court based on the responses filed
by the States/Union Territories to the application filed by him.
Dr. Singhvi has accordingly filed a summary of
D recommendations, which, according to him, deserve to be
examined and accepted while concluding these proceedings
which have remained pending in this Court for the past 30 years
or so. We, therefore, propose to deal with the
.recommendations so summarised by the Amicus Curiae,
E having regard to the responses of the States filed and also the
need for giving quietus to the issues that have engaged the
attention of this Court for such a long time.
5. The Amicus has, in paras 1 O(A) to 1 O(B) of the
application, sought suitable directions from this Court of settingF up of State Human Rights Commissions in the States of Delhi,
Arunachal Pradesh, Mizoram, Meghalaya, Tripura and
Nagaland, where such Commissions have not been set-up
even after two decades have passed since the enactment of
G the Protection of Human Rights Act, 1993. The application
points out that Delhi has reported the second highest number
of human rights violation cases reported to National Human
Rights Commission (NHRC). It refers to the NHRC Curtain
Raiser published on its 201h Foundation Day, according to
H which out of a total number of 94,985 fresh cases registered
in the NHRC the largest number of cases ( 46, 187) came from
DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
827
[T. S. THAKUR, J.]
the State of Uttar Pradesh followed by Delhi, which reported A
7,988 cases and Haryana, which reported 6,921 cases.
Despite a large number of complaints alleging violation of
human rights from the Delhi region, the Delhi Government has
not set-up a State Human Rights Commission so far. The
application further points out that Mizoram, Meghalaya, T ripura B
and Nagaland are all disturbed States with problems of
insurgency, foreign immigration, tribal warfare and ethnic
violence apart from custodial violence and deaths, which
according to the Amicus, are rampant in each one of these
States making it necessary to have a proper authority to look C
into such violations and grant redress wherever necessary.
6. Despite an opportunity granted for the purpose, the
States that haye failed to set-up Human Rights Commissions
have not come forward to offer any justification for their omission D
to do so. All that was argued by some of the counsel appearing
for the defaulting States is that the establishment of a
Commission is not mandatory in terms of Section 21 of the
Protection of Human Rights Act, 1993. It was urged that the
use of words 'A State Government may constitute a body to · E
be known as the ............... (Name of the State) Human
Rights Commission' clearly suggests that the State
Government may or may not choose to constitute such a body.
In the absence of any mandatory requirement under the Act
constitution of a State Human Rights Commission cannot, it F
was urged, be ordered by this Court in the present proceedings.
7. There is, in our opinion, no merit in the contention
I
urged on beh'alf of the defaulting States. We say so for reasons
more than one, but, before we advert to the same we wish to G
point out that Protection of Human Rights Act, 1993 symbolises
the culmination of a long drawn struggle and crusade for
protection of human rights in this country as much as elsewhere
is the world. The United Nations (UN) General Assembly in
December, 1948 adopted the Universal Declaration of Human H
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A Rights which was a significant step towards formulating and
recognizing such rights. It was, then, followed by an International
Bill of Rights which was binding on the covenanting parties.
Since the Universal Declaration of Human Rights was not
legally binding and since United Nations had no machinery for
B its enforcement, the deficiency was removed by the UN General
Assembly by adopting in December, 1965 two covenants for
the observance of human rights viz. (i) the Covenant on Civil
and Political Rights; and (ii) the Covenant on Economic, Social
and Cultural Rights. The first covenant formulated legally
C enforceable rights of the individual while second required the
States to implement them by legislation. These covenants
came into force in December, 1976 after the requisite number
of member States ratified them. Many of the States ratified
D the Covenants subsequently at the end of 1981. These
Covenants thus become legally binding on the ratifying States
and since India is a party to the said Covenants, the President
of India promulgated the Protection of Human Rights
Ordinance, 1993 on 28th September, 1993 to provide for the
E constitution of a National Human Rights Commission, State
Human Rights Commissions in the States and Human Rights
Courts for better protection of human rights and for matters
connected therewith. The ordinance was shortly thereafter
replaced by the Protection of Human Rights Act, 1993.
F
8. In the Statement of Objects and Reasons of the
Protection of Human Rights Act, 1993 it, is inter alia, mentioned
that India is a party to the International Covenant on Civil and
Political Rights and the International Covenant on Economic,
G Social and Cultural Rights adopted by the General Assembly
of the United Nations on 16th December, 1966. It is further
stated that the human rights embodied in the said Covenants
are substantially protected by the Constitution and that there
is a growing concern about the changing social realities and
H the emerging trends in the nature of crime and violence. The
Statement of Objects and Reasons also refers to the wide
blLIP K. BASU v. STATE OF WEST BENGAL & ORS.
829 ,
[T. S. THAKUR, J.]
ranging discussions that were held at various fora such as the A
Chief Ministers' Conference on Human Rights, seminars
organized in various parts of the country and the meetings with
leaders of various political parties, which culminated in the
presentation of Protection of Human Rights Bill, 1993 that came
to be passed by both the Houses of Parliament and received B
the assent of the President on 81h January, 1994 taking
retrospective effect from 281h September, 1993. The
significance of the human rights and the need for their
protection and enforcement is thus beyond the pale of any
debate. The movement for the protection of such rights is not C
confined only to India alone. It is a global phenomenon. It is, in
this backdrop that the provisions of Section 21 of the Act need
to be examined. It is true that a plain reading of the provisions
may give the impression that the setting-up of a State Human 0
Rights Commission rests in the discretion of the State
Government. But a closer and more careful analysis of the
provisions contained in the Act dispel that impression. Section
21 of the Act, which deals with the setting-up of State Human
Rights Commission, is in the following terms:
E
"21.
Constitution of State Human
Rights
Commission.-
(1) A State Government may constitute a body to be
known as the ............................. (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, with effect from such
date as the State Government may by notification
specify, consist of.-
(a) a Chairperson who has been a Chief Justice of a
High Court;
F
G
(b) one Member who is, or has been, a Judge of a High
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Court or District Judge in the State with a minimu_m of
seven years experience as District Judge;
(c) one Member to be appointed from among persons
having knowledge of or practical 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 Ill in the
Seventh Schedule to the Constitution: 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 for the words and figures "List II
and List Ill in the Seventh Schedule to the Constitution",
the words and figures "List Ill in the Seventh Schedule
to the Constitution as applicable to the State of Jammu
and Kashmir and in respect of matters in relation to
which the Legislature of that State has power to make
laws" had been substituted.
(6) Two or more State Governments may, with the
consent of a Chairperson or Member of a State
Commission, appoint such Chairperson or, as the case
may be, such Member of another State Commission
-DILIPK. BASU v. STATEOFWESTBENGAL&ORS.
831
[T. S. THAKUR, J.]
simultaneously if such Chairperson or Member
A
consents to such appointment: Provided that every
appointment made under this sub-section shall be
made offer obtaining the recommendations of the
committee referred to in sub-section (1) of section 22
in respect of the state for which a common chairman or
B
member, or both, the case may be, is to be appointed."
9. A plain reading of the above would show that the
Parliament has used the word 'may' in sub-Section ( 1) while
providing for the setting-up of a State Human Rights c
Commission. In contrast the Parliament has used the word
'shall' in sub-Section (3) while providing for constitution of a
National Commission. The argument on behalf of the defaulting
States, therefore, was that the use of two different expressions
which dealing with the subject of analogous nature is a clear D
indication that while a National Human Rights Commission is
mandatory a State Commission is not. That argument is no
doubt attractive, but does not stand close scrutiny. The use of
word 'may' is not by itself determinative of the true nature of
the power or the obligation conferred or created under a E
provision. The legal position on the subject is fairly well settled
by a long line of decisions of this Court. The stated position is
that the use of word 'may' does not always mean that the
authority upon which the power is vested may or may not
exercise that power. Whether or not the word 'may' should be F
construed as mandatory and equivalent to the word 'shall'
would depend upon the object and the purpose of the
enactment under which the said power is conferred as also
related provisions made in the enactment. The word 'may' has
been often read as 'shall' or 'must' when there is something in G
.
the nature of the thing to be done which must compel such a
reading. In other words, the conferment of the power upon the
authority may having regard to the context in which such power
has been conferred and the purpose of its conferment as also H
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A the circumstances in which it is meant to be exercised carry
with such power an obligation which compels its exercise. The
locus classicus on the subject is found in Julius v. Bishop of
Oxford12where Justice Cairns, LC. observed:
B
c
D
" ... The words 'it shall be lawful' are not equivocal. They
are plain and unambiguous. They are words merely
making that legal and possible which there would
otherwis'J be no right or authority to do. They confer a
faculty or power, and they do not of themselves do more
than confer a faculty or power. But there may be
something Jn the nature of the thing empowered to be
done, something in the object for which it is to be done,
something in the conditions under which it is to be done,
something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple
the power with a duty, and make it the duty of the person
in whom the power is reposed, to exercise that power
when called upon to do so . ... "
.
Lord Blackburn in the same case observed:
E
"I do not think the words "it shall be lawful" are in
themselves ambiguous at all. They are apt words to
express that a power is given; and as, prima facie, the
donee of a power may either exercise it or leave it
F
unused, it is not inaccurate to say that, prima facie, they
are equivalent to saying that the donee may do it; but if
the object for which the power is conferred is for the
purpose of enforcing a right, there may be a duty cast
on the donee of the power, to exercise it for the benefit
G
of those£ho have that right, when required on their
behalf .... "
10. A long line of decisions of this Court starting with
Sardar GoVfnd Rao and Ors. v. State of Madhya Pradesh13
H
12 (1880) 5 AC 214
13 AIR 1965 SC 1222
91LIP K. BASU v. STATE OF WEST BENGAL & ORS.
833 v
[T. S. THAKUR, J.]
have followed the above line of reasoning and authoritatively A
held that the use of the word 'may' or 'shall' by themselves do
not necessarily suggest that one is directory and the other
mandatory, but, the context in which the said expressions have
been used as also the scheme and the purpose underlying
the legislation will determine whether the legislative intent really B
was to simply confer the power or such conferment was
. , ,
accompanied by the duty to exercise the same. In The Official
Liquidator v. Dharti Dhan Pvt. Ltd.1' this Court summed up
the legal position thus :
"In fact it is quite accurate to say that the word ~·may" by
itself, acquires the meaning' of "must" or "shall"
sometimes. This word however, always signifies a
conferment of power. That power may, having regard to
the context in which it occurs, and the requirements
· contemplated for its exercise, have annexed to it an
obligation which compels its exercise in a certain way
on facts and circumstances from which the obligation
to exercise it in that way arises. In other words, it is the
context which can attach the obligation to the power
compel-ling its exercise in a certain way. The context,
both legal and factual, may impart to the power that
obligatoriness. Thus, the question to be determined in
such cases always is, whether the power conferred by
the use of the word "may" has, annexed to it, an
obligation that, on the fulfilment of certain legally
prescribed conditions, to be shown by evidence, a
particular kind of order must be made. If the statute
leaves no room for discretion the power has to be
exercised in the manner indicated by the other legal
provisions which provide the legal context. Even then
the facts must establish that the legal conditions are
fulfilled: A power is exercised even when ~
Court
,_
14 (1977) 2 sec 166
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rejects an application to exercise it in the particular way
in which the applicant desires it to be exercised. Where
the power is wide enough to cover both an acceptance
and a refusal of an application for its exercise,
depending upon facts, it is directory or discretionary. It
is not the conferment of a power which the word "may"
indicates that annexes any obligation to its exercise
but the legal and factual context of it."
11. So also, this Court in ND Jaya/ andAnr. v. Union
c of India and Ors. 15 interpreted the provisions of the
Environmental Protection Act, 1986 to mean that the power
conferred under the Act was not a power simpliciter, but, was
power coupled with duty. Unless the Act was so interpreted
sustainable development and protection of life under Article
D 21 was not possible observed the Court. In Manushkhlal
Vithaldas Chauhan v. State of Gujarat16 this Court held that
the scheme of the statute is determinative of the nature of duty
or power conferred upon the authority while determining
whether such power is obligatory, mandatory or directory and
--E that even if that duty is not set out clearly and specifically in the
stature, it may be implied as correlative to a right. Numerous
other pronouncements of this Court have similarly addressed
and answered the issue. It is unnecessary to refer to all those
decisions for we remain content with reference to the decision
F of this Court in Bachahan Devi and Anr. v. Nagar Nigam,
Gorakhpur and Anr.17 in which the position was succinctly
summarized as under:
"18. It is well settled that the use of word 'may' in a
G
statutory provision would not by itself show that the
provision is directory in nature. In some cases, the
legislature may use the word ·may' as a matter of pure
conventional courtesy and yet intend a mandatory force.
In order, therefore, to interpret the legal imporl of the
H 1 s (2004) 9 sec 362
16 (1997) 1 sec 622
17 c2ooei 12 sec 372
DILIP K. BASU v. STATE OF WEST BENGAL & ORS.
[T. S. THAKUR, J.]
word 'may', the court has to consider various factors,
namely, the object and the scheme of the Act, the
context and the background against which the words
have been used, the purpose and the advantages
sought to be achieved by the use of this word, and the
like. It is equally we/I-settled that where the word 'may'
involves a discretion coupled with an obligation or where
it confers a positive benefit to a general class of subjects
in a utility Act, or where the court advances a remedy
and suppresses the mischief, or where giving the words
directory significance would defeat the very object of
the Act, the word 'may' should be interpreted to convey
a mandatory force. As a general rule. the word 'mav' is
permissive and operative to confer discretion and
especially so. where it is used in juxtaposition to the
word 'shall'. which ordinarily is imperative as it imposes
a dutv. Cases however, are not wanting where the words
'may' 'shall'. and 'must' are used interchangeablv. In
order to find out whether these words are being used in
a directory or in a mandatory sense. the intent of the
legislature should be looked into along with the pertinent
circumstances.