Judicial Decisions Relevant to Human Rights Institutions (Digest 1) The Supreme Court of India and the various High Courts have in several cases opined on the powers, jurisdiction, functions, and limitations of human rights institutions in India. This brief note on the relevant cases will be useful to understand the role of the Commissions and the legal boundaries that they must be mindful of while discharging their functions. The provisions relating to functions and powers of the different Commissions vary. This digest should therefore be read along with the tabular chart on the comparison between the NHRC, NCW, and NCPCR. Appointment Process In the case of Association for Development v. Union of India 1 the appointment of two members of the NCPCR was challenged before the Delhi High Court on the ground that they did not possess the requisite qualifications specified in Section 3 of the Commission on Protection of Children Act, 2005 (CPCR Act). Since the term of the members was to expire shortly, the High Court refrained from looking into the appointments. Instead, the court proceeded to consider the process to be followed for future appointments. On behalf of the Government of India, the Solicitor General submitted that the Selection Committee shall comprise of at least one independent expert of eminence in the field of child rights or welfare. Further, after the completion of the selection process and 30 days before the notification of appointment, the details of the Selection Committee as well as the candidates along with their qualifications shall be put up on the website of the Ministry of Human Resources Development. Compliance with statutory provisions In N.C.Dhoundial v. Union of India 2 the Supreme Court lay emphasis on the need for the NHRC to comply with the parent statute and not step beyond it: 1 2010 (115)DRJ 277. 2 AIR 2004 SC 1272. The Commission which is an 'unique expert body' is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the for[sic] which can redress the grievances arising out of the violations of human rights. 1
Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. (Emphasis added) Jurisdictional Challenge An order of the DCW granting interim maintenance to the petitioner s wife and instructing the amount to be deducted on a monthly basis from the petitioner s salary was challenged in Bhupinder Singh v. Delhi Commission for Women 3 on the grounds that the Commission lacked the jurisdiction to pass an order on interim maintenance and that if such an order was allowed to prevail then it would amount to supplanting the Commission over the Courts. The Delhi High Court held that the Commission was without jurisdiction to pass such an order and made the following observation: An examination of the Statement of Objects and Reasons of the said Act would indicate that the main task of the Commission is to study and monitor all matters relating to the constitutional and legal safeguards provided for women, to review the existing legislations and suggest amendments wherever necessary. The Commission for Women is also required to look into the complaints and take suo moto notice of the cases involving deprivation of the rights of women in order to provide support, legal or otherwise, to helpless women. The Commission is also required to monitor the proper implementation of all the legislations made to protect the rights of women so as to enable them to achieve equality in all spheres of life and equal participation in the development of the nation. Section 10 of the said Act describes the functions of the Commission. While it is true that the Commission by virtue of Section 10(3) has been vested with all the powers of a civil court in carrying out an investigation with regard to the matters relating to safeguards provided for women under the constitution and other laws as also with regard to the matters relating to deprivation of women's rights, there is, however, no power granted to the Commission to pass orders and or directions for maintenance. These powers are vested in the courts, both civil and criminal. Suo motu powers of the Commission can a Commission inquire into individual cases of violation? The jurisdiction of the NCW and the fairness of its decision were considered in the case of U.S. Verma, Principal, DPS v. National Commission for Women 4. The Delhi High Court observed that the suo motu power of the NCW related to generic matters as the provision empowering them to inquire into complaints which refers to "deprivation of women's rights"; "non-implementation of laws enacted to provide protection to women" 3 137 (2007) DLT 411 4 163 (2009) DLT 557. 2
and "Non-compliance of policy decisions, guidelines...aimed at mitigating hardships and ensuring welfare..."is so that they can raise the issues arising from these matters with appropriate authorities. They can submit recommendations or reports to the Central Government or State Government in this regard. The Delhi High Court made the following observations on the nature of complaints that may be considered by the NCW: It is also an unimpeachable fact that the Commission was conceived of, and functions as, a national level body, primarily looking into policy issues to highlight them, and recommend appropriate measures to the Government(s) concerned. It cannot, in principle, look into individual issues, unless they pose, or concern, a wider policy, or legislative structural dilemma, which requires to be addressed. In line with this understanding, it is established that such "findings" or recommendations are of little or no evidentiary value; they do not amount to substantive evidence in judicial proceedings. Compliance with principles of natural justice The Madhya Pradesh Human Rights Commission had received a written complaint from two Assistant Professors of a Government College alleging that the Head of the Department had sexually harassed them. The Commission wrote to the Government seeking its comments on the complaint. On the failure of the government to respond even after a reminder, the Commission proceeded to conduct its own enquiry and had the allegations investigated into by its own investigation team. The investigation team concluded that the allegations were true. The Commission made recommendations to the government based on the investigation report. Instead of acting on it, the Principal of the College issued show-cause notices to the complainants asking them to explain as to why they approached the Commission. Following this, one of the professors withdrew her complaint. The Commission was of the view that this was under the pressure. The government also informed the Commission that it had undertaken an independent inquiry into the allegations and concluded that it was unfounded. The Commission then approached the High Court in M.P. Human Rights Commission v. State of Madhya Pradesh 5 urging that the government had failed to protect the human rights of the women at their workplace and that the government and the college chose to reject the recommendations on vague grounds. The respondent submitted that the HOD had not been heard by the investigating team and had also not been given the opportunity to cross-examine witnesses. Further, the investigation had been conducted by inspectors who were Class III employees of the State Government while the HOD was a Class I-Gazetted Officer and hence the investigation was improper. The Madhya Pradesh High Court held that the Commission had not complied with Section 16 of the Protection of Human Rights Act, 1993 which required that persons likely to be prejudicially affected by the inquiry should be given a reasonable opportunity to be heard and to produce evidence in their defence. It directed 5 AIR 2002 MP 239. 3
the Commission to provide the College and the HOD with an opportunity to present their defence and thereafter address its recommendations to the Government. The Court also added that the inquiry should be conducted by senior responsible officers. Challenge of dismissal of complaint An order passed by the Tamil Nadu SHRC, dismissing a complaint pertaining to harassment by the police was challenged by the complainant in Ram Subbiah v. The State Human Rights Commission. 6 The Madras High Court held that if the Commission s decision is based on its subjective satisfaction that there had been no human rights violation, the same should not be interfered with by the court unless the court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. In this case the court did not interfere with the decision of the Commission and dismissed the petition. Can a mandamus be filed if the government fails to respond to recommendations? In Manipur Human Rights Commission v. State of Manipur 7, the Gauhati High Court considered whether the Manipur Human Rights Commission could file a writ before the High Court praying that a writ of mandamus be issued to the government directing them to perform their public duties by forwarding their comments on the inquiry report and recommendations made by the Commission and also to direct the government to implement the recommendation made by the Commission. The Commission had recommended the payment of compensation to the family of a person who had died while trying to cross an incomplete bridge. The court considered the obligation placed upon the government under Section 18(5) 8 of the Protection of Human Rights Act, 1993 (prior to its amendment in 2006) which reads: (5) the Commission shall send a copy of its inquiry report together with its recommendations to the, concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission. It relied on a decision of the Supreme Court to hold that since the writ of mandamus is a public law remedy that can be used to compel a public or statutory authority to perform its duties, it could be issued against the government. Commissions cannot pass orders in the nature of an interim injunction 6 Decision dated 14.07.2005 of the Madras High Court. 7 2007 (2) GLT 199. 8 Section 18 of the Protection of Human Rights Act, 1993 was amended in 2006. Section 18(5) was replaced with Section 18(e) which also casts the same obligation upon the government. 4
In All Indian Overseas Bank SC & ST Employees Welfare Association v. Union of India 9 the Supreme Court examined whether the erstwhile National Commission for Scheduled Castes and Scheduled Tribes had the power to issue a direction in the nature of an interim injunction. The Commission had issued a direction to the Executive Director of Indian Overseas Bank to stop its promotion process pending further investigation and final verdict of the Commission. This direction had been set aside by the High Court which had held that the Commission had no powers to issue interim orders of this kind. The decision of the High Court was then challenged before the Supreme Court. The appellants submitted that since the Commission had powers of a civil court they had the authority to pass such a direction. Article 338(8) of the Constitution equipped the Commission with the powers of a civil court while investigating into matters relating to safeguards for Scheduled Castes and Scheduled Tribes and inquiring into specific complaints with respect to the deprivation of their rights. The apex court observed that the powers made available to the Commission are essential to facilitate an investigation or an inquiry but do not convert the Commission into civil court. Further, it held: All the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a Civil Court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of Clause 8 of Article 338 of the Constitution. Based on this interpretation, the Supreme Court held that the direction issued by the Commission was lacking in authority. In NDTV Imagine Ltd v. Union of India 10, the petitioners challenged the order passed by NCPCR directing them to stop telecasting Pati Patni or Woh on the ground that the Commission had no powers to pass an interim injunction. The Commission had not issued any show-cause notice to the petitioner before passing he order. The Delhi Court considered Section 14 of the CPCR Act which stipulates the powers available to Commissions while inquiring into complaints and held that no power vested in the NCPCR to pass an ex parte order. The very nature of the power under Section 14 envisages the issuance of a prior notice followed by an inquiry. Further, the Commission can pass recommendations only upon the completion of inquiry in accordance with Section 15. The High Court then set aside the order passed by NCPCR. 9 (1996) 6 SCC 606. 10 Order dated 15.03.2010 in W.P. 12142 of 2009 and CM Appl No. 12335/09 passed by the Delhi High Court. 5