REPORTABLE

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

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. This 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.   

2. It 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 ‘NHRC).   

3. It  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.  

4. It  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.  

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5. Before 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 follows:

“National Human Rights Commission Sardar Patel Bhawan, Sansad Marg, New Delhi-110001

20.9.2000

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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.  

(M.L. Aneja)”

6. Strangely  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  

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“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:

“Accordingly  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 purpose.”   

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7. 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:

“(d) ‘human rights’ means the rights relating to life, liberty,  equality  and  dignity  of  the  individual  guaranteed  by  the  Constitution  or  embodied in  the  International  Covenants  and  enforceable by courts in India.”   

8. Section 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  

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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 countenanced.  

9. Learned counsel for the NHRC also referred to Section 18 (a) dealing  

with steps during and after inquiry.   

10. Specific  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.  

11. Reference was also made to Section 12 (Functions of the Commission);  

more  particularly  clauses  (a)  and  (b).  The  provisions  do  not  provide  any  

answer to the questions involved.  

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12. Clause (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 situation here.  

13. Learned 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.

14. Therefore, 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.  

15. The 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  

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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.”

16. Apparently, 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 sentence.  

17. The writ petition is allowed to the aforesaid extent.    

………………………….………..J. (Dr. ARIJIT PASAYAT)

………………………….………..J.  (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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