Bani Kanta Das &
ANR. Va. State of Assam & Ors.  INSC 986 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 457 OF 2005 Bani
Kanta Das and Anr. ...Petitioners Versus State of Assam and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
petition under Article 32 of the Constitution of India, 1950 has been filed by
Smt. Jayanti Das w/o Late Jay Ram Das and Shri Bani Kanta Das S/o Late Jay Ram
Das. Challenge in the writ petition is to the legality of the order passed by
the Governor of Assam, conveyed by the Secretary, Judicial Department,
Government of Assam. By the said order the Governor of Assam had directed to
commute the sentence of death awarded to one Rajnath Chauhan @ Ramdeo Chauhan
(hereinafter referred to as the `accused') to that of life imprisonment. The
death sentence awarded to the convict by the trial Court was confirmed by the
Guwahati High Court and was upheld by this Court.
is basically submitted that no reason has been indicated to direct such
commutation and apparently the order of commutation had its foundation on
recommendations made by the National Human Rights Commission (in short the
is basically stated that no reason was indicated as to why the Governor decided
to commute the death sentence to that of life imprisonment when the accused was
guilty of heinous, abominable crime where a family was massacred, and
considering the nature of crime the death sentence as awarded by the trial
Court came to be confirmed by this Court and a review petition filed was
dismissed. Four persons of a family were brutally murdered by the accused.
is submitted that the accused has taken various dilatory steps to undo effects
of this Court's judgment. It is submitted that NHRC had no role to play but it
went beyond its jurisdiction to recommend purportedly on the basis of a
complaint made by Prof. Ved Kumari.
we come to the merits of the case as regards requirement to record reasons,
considering the important issue raised relating to the jurisdiction of the
NHRC, learned counsel for the NHRC was directed to file copy of the entire
record of the case. Notice was also issued to Prof. Ved Kumari to have her say
in the matter. Certain important aspects are there which need to be gone into
some detail. In her affidavit Prof. Ved Kumari has stated that she was not the
complainant and the proceedings were initiated suo motu by NHRC. Though the
records point to the contrary, learned counsel for the NHRC stated that
actually the proceedings were initiated suo motu by NHRC. The other question
which then arises is did NHRC have any jurisdiction to make recommendation in
the manner done? To substantiate her stand that the proceedings were initiated
suo motu, Prof. Ved Kumari has annexed to her affidavit a copy of the Article
"Has child been executed in India" and copies of certain
correspondences. One of them is a letter dated 20.9.2000. The same reads as
Rights Commission Sardar Patel Bhawan, Sansad Marg, New Delhi-110001 20.9.2000
3 M.L. Aneja Joint Registar (Law) Dr. Ved Kumari G3/47 Model Town 3rd Stop,
Opp. Chhatrasal Stadium, New Delhi.
Madam, Apropos my
telephonic talk with you regarding handing over of copy of the record of the
Sessions Court in Criminal Appeal No.4 of 2000 decided by the Supreme Court on
31.7.2000- Ram Deo Chauhan alias Raj Nath Chauhan vs. State of Assam, kindly
hand over the same to the bearer of this letter.
As already informed
you on telephone that the matter will be listed before the Full Commission on
Monday the 25.9.2000 at 3.00 p.m. I am directly to request you to kindly appear
before the Commission in the Conference Room at Sardar Patel Bhawan on the date
and time mentioned above for further consideration of the matter.
this letter does not form part of copy of the records submitted by NHRC. Though
Prof. Ved Kumari's stand was that the proceedings before NHRC were initiated
suo motu, the verification of the records points to the contrary. In Form No.1
under Regulation 12 in para 3 it has been stated that "Is it a public
interest complaint". The name and address of the complainant is that of
Prof. Ved Kumari. The name of the "victim" is stated to be Ramdeo
Chauhan. In the order dated 25.9.2000 the name of the complainant is stated to
be Prof. Ved Kumari. In the said order there is reference that on 20.9.2000 a
direction was given by the Chairperson to list the matter. This direction does
not form part of the record. In the proceeding dated 27.9.2000 it is noted by
the NHRC that mercy petition is pending consideration of the Government of
Assam. Prof. Ved Kumari stated that would also get in touch with an advocate
and steps would be taken to move this Court also through a lawyer in the
matter. In the order dated 16.10.2000 the name of the complainant is stated to
be that of Prof. Ved Kumari. In the letter addressed to Dr. Ved Kumari dated
20th October, 2000 the subject is "Your complaint dated 20.9.2000".
Similarly, in the order dated 27.11.2000 the name of the complainant is stated
to be Dr. Ved Kumari. Similar is the position in the letter dated 16.5.2001
where it is clearly stated regarding complaint of Dr. Ved Kumari. Then comes
the order of 21.5.2001 where it refers to the complaint made by Dr. Ved Kumari
and the NHRC referred to the order passed by this Court in review petition and
ultimately made the following recommendations:
this Commission makes the above recommendation in terms of the opinion of
Thomas J for due consideration by the Governor of Assam and/or the President of
India, as the case may be in the event of a mercy petition being filed for the
basic question raised is whether NHRC could have entertained any complaint
either suo motu or on the basis of an application filed by any person in
respect of a judicial order. In the documents filed before this Court by NHRC
as noted above the name of victim has been stated and cause of action is stated
to be the date of judgment of this Court i.e. 31.7.2000. The Protection of
Human Rights Act, 1993 (in short the `Act') was enacted for constitution of
NHRC for better protection of human rights and for matters connected therewith
or incidental thereto. The expression `human rights' is defined in Section 2(d)
which reads as follows:
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 courts in India."
17 in Chapter IV deals with inquiry into complaints regarding violation of human
rights. Obviously, there have to be atleast two persons individual. One whose
human rights have been violated and the other who has violated the human
rights. It was pointedly asked to learned counsel for the NHRC who has violated
the human rights of the accused. An evasive reply was given that when any
action violated the human rights, there can be violation of the human rights.
This situation is not conceivable in law. Since the date of cause of action was
indicated to be the date of this Court's judgment, it was pointedly asked to
learned counsel for the NHRC as to whether the Judges of the Supreme Court or
the court itself had violated the human rights. Here again an evasive reply was
given stating that under Section 13 i.e. "powers relating to inquiries"
there is power of requisitioning any public record or copy thereof from any
court or office. This is not the same thing saying that by an order of this
Court there has been violation of human rights. Such a position can never be
counsel for the NHRC also referred to Section 18 (a) dealing with steps during
and after inquiry.
stress is led on the recommendation to the concerned government or authority.
That clause has absolutely no application to a case of the present nature.
was also made to Section 12 (Functions of the Commission);
clauses (a) and (b). The provisions do not provide any answer to the questions
(a) authorizes action to be taken on the basis of a direction or any order of
any Court. In the instant case there was no such direction. Clause (b) permits
intervention in any proceeding "with approval of such Court".
That also is not the
counsel for the NHRC also referred to Section 12 (j) of the Act contending the
Commission shall perform all or any of the functions i.e. such other functions
as it may consider necessary for the protection of human rights. According to
learned counsel since there were certain observations by one of the Hon'ble
Judges in the review petition, therefore the Commission had the rights to do
it. Here again, the submission is without substance because the proceedings
itself before the NHRC were without sanction of law.
the NHRC proceedings were not in line with the procedure prescribed under the
Act. That being so, the recommendations, if any, by the NHRC are non est.
State of Assam has indicated that not only the recommendations of NHRC but
several other aspects have been take note of. But the order directing
commutation does not indicate any reason. This is contrary to what has been
stated by this Court in Epuru Sudhakar v. Govt. of A.P. and Ors. (2006) 8 SCC 161.
In para 38 it was observed as follows:
"38. The same
obviously means that the affected party need not be given the reasons. The
question whether reasons can or cannot be disclosed to the Court when the same
is challenged was not the subject-matter of consideration. In any event, the
absence of any obligation to convey the reasons does not mean that there should
not be legitimate or relevant reasons for passing the order."
in the instant case that has not been done. We, therefore, set aside the
impugned order of commutation of death sentence to life imprisonment and direct
reconsideration of the application filed by the accused for commutation of
writ petition is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)