Centre for Child and the Law National Law School of India University, Bangalore. Judicial Decisions On Human Rights Institutions,2011 (Digest 2)

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1 Judicial Decisions On Human Rights Institutions,2011 (Digest 2) Absence of power to set aside a concluded inquiry In Karanataka Antibiotics and Anr v. National Commission SC and ST 1, the Karnataka High Court considered whether the erstwhile National Commission for Scheduled Castes and Scheduled Tribes (NCSCST) had the power to issue a direction to override the findings of an enquiry committee and orders passed by a disciplinary authority and upheld by an appellate authority. In this case, a Senior Manager in a company owner jointly by the Government of India and Government of Karnataka was removed from service by the Disciplinary Authority on charges of corrupt practices after an enquiry. The Manager s appeal against the removal had also been rejected. Thereafter, the Manager approached NCSCST for redress. A Member of the NCSCST met the Company officials and directed them to conduct a fresh enquiry into the matter and to treat the Manager as though he had continued in service and to pay salary and allowances accordingly. The trade union of the company filed a writ petition before the Karnataka High Court against the direction issued by the Member, NCSCST on the ground that Article 338 of the Constitution did not empower the Commission to set aside the order of an Appellate Authority and order for a fresh enquiry. The Commission can only inquire into a complaint received by it and make recommendations to the concerned authority. The High Court relied on the Supreme Court s ruling in All India Indian Overseas Bank SC and ST employees' welfare association v. Union of India 2 as per which the Commission was said to not have the powers of a civil court to issue injunctions to hold that the Commission is not empowered to set aside a concluded inquiry and the order of penalty and the order of appellate authority. Absence of power to review decisions Whether or not human rights institutions have the power of review available to the civil courts has been contested before the courts in two cases. In N.C.Dhoundial v. Union of India 3, the National Human Rights Commission had reopened a closed complaint and this act of exercising the power of review was challenged before the Supreme Court. Even though the apex court heard the parties on this issue, it refrained from deciding on it as it held that the Commission lacked the jurisdiction to take up the matter in the first place. In Indian Institute of Technology v. National Commission for Scheduled Castes and Scheduled Tribes 4, the NSCST s exercise of the review of its own order was challenged before the Delhi High Court. The Delhi High Court observed that review power has to 1 ILR 2008 Kar (1996) 6 SCC AIR 2004 SC (2004)74 DRJ 109. CCL-NLSIU

2 be specifically conferred and cannot be inferred and that while Article 338(8) of the Constitution conferred certain specific powers of a civil court upon the Commission. It held that in the absence of an express power of review being conferred the Commission has no such power. Lack of powers available to a criminal court In Vikram Sharma v. Union of India 5, the National Commission for Women (NCW) had intervened in a matrimonial dispute and written to the Foreigners Registration Regional Office (FRRO) urging them to issue a Look-Out-Circular (LOC) against the petitioner on the basis of which he had been off-loaded from a flight and detained at the airport. No FIR or criminal complaint had been lodged against him at the time the LOC had been issued. The petitioner approached the Delhi High Court seeking several reliefs one of which was inquiry into the wrongful and malafide conduct of the NCW. The issue before the Delhi High Court was whether while exercising the power of a civil court the NCW could ask for an LOC to be issued against a person who is to appear before it. The NCW justified its action of writing to the FRRO based on Section 10(4) of the National Commission for Women Act, 1990, which conferred certain powers of a civil court trying a suit while inquiring into complaints of violation of women s rights. The Ministry of Home Affairs clarified that only the Central or State Government court request for an issue of LOC and a statutory body like the NCW had no such authority. The Delhi High Court held that [b]eing granted the powers of a civil court for a limited purpose does not vest the NCW with the powers of a criminal court and it has no authority to make a request for the issuance of an LOC. It proceeded to order the NCW and the FRRO to each pay a compensation of Rs 20,000 to the petitioner. Complaints should make out a violation of rights In T.Vellaiyan v. Registrar, State Human Rights Commission 6, the Tamil Nadu State Human Rights Commission passed an interim order for transfer of electricity service connection from the petitioner to his brother based on a complaint by the latter. The petitioner challenged the jurisdiction of the Commission to pass such an order. The Madras High Court considered the definition of human rights in the Protection of Human Rights Act, 1993 and observed that the right to property cannot be included within its ambit. The court allowed the withdrawal of the complaint before the Commission and also quashed the order passed by the Commission. In V.M.Thiaggu v. Karnataka State Commission for Women 7, the jurisdiction of the Karnataka State Commission for Women was challenged on similar grounds. A woman had stood as guarantor for a loan taken by her tenants and had also offered her property 5 171(2010)DLT AIR 2005 Mad Decided On: by the Karnataka High Court. CCL-NLSIU

3 as collateral security. When the petitioners defaulted in the payment of the loan, the Bank filed for debt recovery and also added the woman as a party. The woman then approached the KSCWh alleging that she had been mislead into offering collateral security. The Commission issued a letter to the Inspector General of Police and directed him to secure the presence of the petitioners. The Commission refused to provide them with a copy of the complaint. They had to resort to an application under the Right to Information Act, 2005, to gain access to the complaint. The petitioners challenged the action of the KSCW on the ground that its intervention was unwarranted and that the production of the petitioners through police was a coercive measure, which was wholly illegal and without jurisdiction. The High Court scanned through the objectives of the Commission and its functions and concluded that this dispute did not relate to a matter that would come within the jurisdiction of the Commission and then set aside the notice issued by the Commission to the petitioners. Nature of recommendations and when they can be challenged and government s obligations In Rajesh Das vs Tamil Nadu State Human Rights Commission 8 the Madras High Court examined whether Human Rights Commissions have power of adjudication in the sense of passing an order which can be enforced on its own. In this case, the correctness of the recommendations made by the Tamil Nadu State Human Rights Commission was challenged. The Commission had recommended the government to pay compensation and to recover the amount from the errant public servants. The High Court held that the Commission has got no power either to order for payment of compensation or to issue any other order. The power, in simple terms, is only to make appropriate recommendation to the Government. The said recommendation cannot be equated to an executable order at all. The commission is neither a judicial authority nor a quasi judicial authority to adjudicate upon the disputed facts. The court also opined on the obligation of the government, on whether or not compensation paid could be recovered from public servants, and whether such challenges to a Commission s recommendations were premature. It held: (i) What is made under Section 18 of the Protection of Human Rights Act by the State Human Rights Commission is only a recommendation and it is neither an order nor an adjudication. (ii) Such a recommendation made by the State Human Rights Commission is not binding on the parties to the proceeding, including the Government. (iii) But, the Government has an obligation to consider the recommendation of the Commission and to act upon the same to take forward the objects of the Human Rights Act, the International Covenants and Conventions in the back drop of fundamental rights guaranteed under the Indian Constitution within a reasonable time. 8 Decided on by the Madras High Court. CCL-NLSIU

4 (iv) In the event of the Government tentatively deciding to accept the recommendation of the State Human Rights Commission holding any public servant guilty of human rights violation, the Government shall furnish a copy of the report of the Commission to the public servant concerned calling upon him to make his explanation, if any, and then pass an appropriate order either accepting or rejecting the recommendation of the Commission. (v) Until the final order is passed by the Government on the recommendation of the Commission, neither the complainant(s) nor the respondent (s) in the human rights cases can challenge the recommendation of the commission as it would be premature except in exceptional circumstances. (vi) On the recommendation of the Human Rights Commission, if the Government decides to launch prosecution, the Government have to order for investigation by police which will culminate in a final report under Section 173 of the Code of Criminal Procedure. (vii) On the recommendation of the Human Rights Commission, if the Government decides to pay compensation to the victims of human rights violation, the Government may do so. But, if the Government proposes to recover the said amount from the public servant concerned, it can do so only by initiating appropriate disciplinary proceeding against him under the relevant service rules, if it so empowers the Government. Interpretation of the Residuary Function In Remdeo Chauhan v. Bani Kant Das 9 the National Human Rights Commission after taking cognizance of an article written by Dr. Ved Kumari on a possible execution of a child made a recommendation to the Governor of Assam for commutation of the death sentence of the petitioner if a mercy petition is filed before the Governor. Subsequently, a mercy petition was filed before the Governor and he commuted the sentence to life imprisonment. This order of the Governor was challenged by the relatives of the victim and the NHRC was also impleaded. The Supreme Court set aside the order of the Governor and also opined that the NHRC proceedings were not in accordance with the procedure laid down in the Protection of Human Rights Act, 1993 and that its recommendations were void. This decision of the Supreme Court was reviewed as several critical issues remained to be considered. The Supreme Court considered whether or not the NHRC had the jurisdiction to make a recommendation in this case. It referred to Section 12(j) which is similarly worded as Section 13(1)(k) of the CPCR Act which states that the Commission can discharge such other functions as it may consider necessary for the promotion of human rights. The apex court made the following observations regarding the residuary function of the Commission: 9 Decided by the Supreme Court on CCL-NLSIU

5 It is not necessary that each and every case relating to the violation of human rights will fit squarely within the four corners of Section 12 of the 1993 Act, for invoking the jurisdiction of the NHRC. One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed. That is why the residuary clause in Sub-section (j) has been so widely worded to take care of situations not covered by Subsections (a) to (i) of Section 12 of the 1993 Act. The jurisdiction of NHRC thus stands enlarged by Section 12(j) of the 1993 Act, to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he is entitled, whether by a private party, a public institution, the government or even the Courts of law. We are of the opinion that if a person is entitled to benefit under a particular law, and benefits under that law have been denied to him, it will amount to a violation of his human rights. Differences between Human Rights Commission and Human Rights Court In Rasiklal M.Gangani v. Government of Goa through Chief Secretary 10, the petitioner had filed cases relating to human rights violations before Human Rights Court notified in Goa. The Special Judge of the Human Rights Court held that an inquiry by the Human Rights Commission is necessary before a criminal prosecution is launched against persons alleged to have committed human rights violations. Further, it is the Government that should launch the prosecution based on the report of the Commission and that a private individual cannot approach the Human Rights Court directly without approaching the Commission. The Special Judge held that the complaints were not maintainable. This decision of the Special Judge was challenged by the petitioners before the Bombay High Court (Goa Bench). The Bombay High Court examined the provisions of the Protection of Human Rights Act and noted the differences between the Human Rights Commission and Human Right Court and observed that the powers, duties and functions of the Commission under the Human Rights Act do not overlap with the functions, powers of the Human Rights Court. The provisions of the Human Rights Act do not mandate that a prosecution cannot be launched unless and until the complaint has been first inquired into or investigated by the Commission. The provisions of the Act certainly empower the Commission to recommend to the Government the prosecution of the erring officers but that does not mean that a prosecution can only be launched if the Commission recommends the institution of the prosecution. Further, it opined on the nature of the two entities under the Protection of Human Rights Act: By this Act two different forums are created. One forum, namely, the Commission to inquire and investigate into the complaints involving violation of 10 (2004) 106 BOMLR 626. CCL-NLSIU

6 human rights and to suggest either remedial measures or the prosecution of the violators. The second forum, namely, the Human Rights Court to try the complaints involving violation of human rights. The trial before the Human Rights Court is not dependent upon any inquiry or investigation done by the Commission. Trial of an offence by the Human Rights Court is different from the inquiry and investigation by the Commission. The Human Rights Court has to try the cases as per law and is not called upon by the Code of Criminal Procedure or the Human Rights Act to hold any inquiry. The role of the Human Rights Commission is more recommendatory in nature while the role of the Court under the Human Rights Act is to try the offenders and punish them according to law. Based on the above understanding of the Human Rights Commission and the Human Rights Court, the Bombay High Court set aside the decision of the Special Judge and held that his conclusion that one could not approach the Human Rights Court without the Commission having inquired into the complaint was baseless. CCL-NLSIU