Thursday, September 9, 2010

Human Rights Act has anomalies: HC Madurai Bench

Human Rights Act has anomalies: HC

Madurai, Sept 7 (PTI): Highlighting some anomalies and shortcomings in the Protection of Human Rights Act 1993, the Madras High Court today expressed the hope that lawmakers will enact appropriate amendments to make it "workable".

Justice S Nagamuthu of the Madurai bench said sections 2(d) and 30 of the Act were vague. A conjoint reading of these two provisions may lead one to believe that all offences committed by public servants relating to human rights shall be tried only the human rights courts.

Nagamuthu made the observation while disposing of a batch of petitions by police personnel and other public servants questioning the recommendations of the National Human Rights Commission, including slapping of fine, against them.

He said provisions of the IPC would reflect that most of the penal provisions could be brought within the ambit 2(d) of the HR Act. "If this section is so understood, it will automatically oust the jurisdiction of the ordinary criminal courts against public servants," the judge said.

"For example, if a policeman meted out cruelty to his wife and committed an offence under Sec 498-A of the IPC or if the father of a public servant commits suicide due to abetment by a public servant, such cases may have to be tried only by human rights courts. Surely this position would not have been intended by the lawmakers."

He said the HR Act was silent as to whether HR courts can try the non-public servants along with the public servants for the commission of offence by all of them as a group. This anomaly also should be addressed.

Observing that NHRC''s recommendations were not binding on any party, including the government, Nagamuthu said neither the accused nor the victim could approach the high court challenging the NHRC''s order until the government took a decision either to accept or reject it.

Courtesy_

Read FULL Judgment hereinbelow collected from:


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27..08..2010

CORAM: THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

W.P.Nos.21604 to 21607 of 2000

Rajesh Das, I.P.S.,
S/o.Pranabandhu Das,
superintendent of Police,
T.N.U.S.R.B. Chennai. ... Petitioner in all the writ petitions


-Versus-


Tamil Nadu State Human Rights Commission,
Rep. by its Secretary, Chennai 600 014.... 1st Respondent in all the Writ Petitions

Mr.Ariasamy ... 2nd respondent in W.P.No.21604 of 2000

A.Laxmanan ... 2nd respondent in W.P.No.21605 of 2000

Tmt.A.Francina ... 2nd respondent in W.P.No.21606 of 2000

Tmt.Lakshmi.... 2nd respondent in W.P.No.21607 of 2000

The Govrenment of Tamil Nadu, Rep. By its Secretary to Government,
Home Department, Fort St. George, Chennai 600 009.
[3rd respondent impleaded as per order of this Court dated 22.04.2002 in W.P.M.P.No.16257 to 16260 of 2002 respectively]... 3rd respondent in all the Writ Petitions

Prayer in W.P.No.21604 of 2000:-

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.850 of 2000/RSS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein.


Prayer in W.P.No.21605 of 2000:-

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.851 of 2000/RSS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein.

Prayer in W.P.No.21606 of 2000:-

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.852 of 2000/RSS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein.

Prayer in W.P.No.21607 of 2000:-

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.853 of 2000/RSS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein.


For petitioner in all the writ petitions:

Mr.Vijaya Narayanan, Senior Counsel for Mr.A.Stalin

For respondent (s) in all the writ petitions:

Mr.R.Srinivas for R1:

Mr.V.Selvaraj for R2:

Mr.S.Sivashanmugam, Govt. Advocate for R3
COMMON ORDER

"Whether the Human Rights Commissions constituted under the Protection of Human Rights Act, 1993 have power of adjudication in the sense of passing an order which can be enforced propri vigore?" These writ petitions are all about this important question.

2. The occurrence which has given rise to these litigations happened on 15.03.2000 in the Police Battalion Ground at Trichy. During the relevant time, the petitioner in these writ petitions, an I.P.S. Officer, was working as Commandant, TSP Battalion No.1, Trichy. His wife, Dr.Beela Rajesh, an I.A.S. Officer, during the relevant period, was working as Sub Collector at Chengalpattu. On date of occurrence, his wife along with two other women police constables was waiting near the Shuttlecock Court in the Battalion Ground to play. At that time, two police constable by name Prabhu and Anbarasan attached to Armed Reserve came near them and eve teased the women. The Police Constables by name Nagarathinam, Krishnamurthy, Shankar and Dinesh, who intervened, were manhandled and attacked by Prabhu and Anbarasan. On a complaint preferred in respect of the same, a criminal case was registered against Prabhu and Anbarasan in Cr.No.55 of 2000 at K.K.Nagar Police Station for offences under Section 341, 323 and 509 of IPC.

3. The respondent Ariasamy is the father of Anbarasan and the respondents A.Lakshmanan, Tmt.A.Francina and Tmt.Lakshmi are the father, mother and wife respectively of Prabhu. According to them, the petitioner's wife and other police personnel were actually playing shuttlecock. At that time, Prabhu came to the spot and on seeing Havildar - Mr.Krishnamuthy [the 4th respondent in the complaints], he made fun of him. The wife of the petitioner mistook it and questioned the same. On hearing the call from his wife, the petitioner rushed to the spot along with the other police personnel. It is alleged that Prabhu was attacked by the petitioner and his subordinates. His father, mother and wife came to the place of occurrence and questioned. They were also attacked. Then, Anbarasan came and questioned. He was also attacked. Anbarasan and Prabhu were kicked by the petitioner and forced to make somersaults. For sometime, they were illegally detained by the petitioner. They were latter on arrested by registering a false case against them. They underwent treatment for the injuries sustained in the occurrence for few days. On the complaint of Mrs.Lakshmi, a case was registered against the assailants on the file of K.K.Nagar Police Station, Trichy.
4. In respect of the above occurrence, alleging human rights violations, there were four complaints made by M.Ariasamy, A.Lakshmanan, Tmt.Francina and Tmt.Lakshmi and the same were entertained by the Tamil Nadu State Human Rights Commission in SHRC Nos.850 to 853 of 2000/RSS respectively on the file of the 1st respondent. The petitioner was the 1st respondent in all the four cases and the other police personnel by name Kandasami [Sub Inspector of Police], Manickam [Sub Inspector of Police] and Krishnamurthy [Havildar] were respondents 2 to 4. The petitioner and the other respondents in the SHRC cases denied the allegations made against them.

5. On service of notice, the petitioner herein and three other respondents in SHRC cases appeared before the Commission and filed their counters denying all these allegations. Before the Commission, besides the victims, few other witnesses were examined on the side of the complainants and some documents were exhibited. They were allowed to be cross examined by the petitioner herein and the other respondents in the SHRC cases. On side of the petitioner, he was examined besides few more witnesses. Some documents were also exhibited on his side. Having considered all the above, the Commission by its proceedings dated 08.12.2000 made the following recommendations:-

(1) Prabhu and Anbarasan be paid a compensation of Rs.2,00,000/- (Rupees Two lakhs) each by the Government.
(2) Lakshmanan and Tmt.Lakshmi be paid a compensation of Rs.50,000/- (Rupees Fifty Thousand) each by the Government.
(3) The compensation amount so paid by the Government has to be recovered from the First Respondent.
(4) The Commission recommends that a circular be issued to the police officers and any indulgence by them of hitting the subordinates and directing them to do somersaults (front rolls) will be against law and should be strictly avoided.
(5) The above recommendations are required to be complied within a month.
Challenging the above recommendations the petitioner has come up with these writ petitions raising several grounds assailing the correctness of the conclusions arrived at by the State Human Rights Commission and its recommendations.

6. At the outset, this court expressed its doubt regarding the maintainability of these writ petitions at this stage since what is under challenge is only a recommendation by the State Human Rights Commission. Therefore, this Court invited the counsel on either side to address on the question of maintainability, first. Accordingly, on the said question, the learned counsel on either side putforth their arguments at length.

7. Mr.Vijaya Narayanan, the learned senior counsel, appearing for the petitioner would submit that the writ petitions are maintainable; whereas Mr.V.Selvaraj, learned counsel appearing for the 2nd respondent in the writ petitions would submit that the writ petitions are not maintainable at this stage.

8. In order to resolve this issue, let us begin the journey with the Scheme of "The Protection of Human Rights Act, 1993". Chapter III of the The Protection of Human Rights Act, 1993 deals with the Functions and Powers of the Commission and Chapter IV deals with the procedure.
9. Having taken note of the Scheme of the Act, the Hon'ble Supreme Court, in N.C.Dhoundial v. Union of India and ohters, (2004) 2 SCC 579 while dealing with the proceedings of the National Human Rights Commission, in para 14 has held as follows:-

"14. .......... 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 fora which can redress the grievances arising out of the violations of human rights. 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. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter."

10. Keeping in mind the above observations of the Hon'ble Supreme Court, let me now have a glimpse of the relevant provisions of the Act. Section 12 of the Protection of Human Rights Act, 1993 read as follows:-

"12. Functions of the Commission.- The Commission shall perform all or any of the following functions, namely:-

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of-

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

(c) visit, notwithstanding anything contained in any other law for the time being in force , any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights;

(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

(j) such other functions as it may consider necessary for the promotion of human rights."

11. A cursory reading of Section 12 of The Protection of Human Rights Act, 1993 would make it abundantly clear that in respect of violation of human rights or abetment thereof, the commission shall inquire either suo motu or on a petition to be presented by a victim or any person on his behalf or on a direction or order of any Court.

12. Section 13 of the Act speaks of the powers relating to inquiries such as the power to summon and enforce the attendance of witnesses, examination of witnesses on oath, receipt of evidence on affidavits , etc. The next relevant provision, Section 17 deals with the procedure for inquiry into the complaints. Section 18 of the Act is more relevant which reads as follows:-

"18. Steps during and after inquiry.- The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely-
(a) where the inquiry discloses, the commission of violation of human rights or abetment thereof by a public servant, it may recommend it may recommend to the concerned Government or authority -
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(c) recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(d) subject to the provisions of clause (e) provide a copy of the inquiry report to the petitioner or his representative;
(e) 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;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission."

13. From a close reading of the above provisions, it is crystal clear that while inquiring into any complaint of human rights violation, the commission shall exercise the power of a civil court to the limited extent of securing the presence of witnesses, examination of witnesses, etc. After completing the inquiry, as envisaged in Section 18 of the Act, the commission shall make only a recommendation to the Government such as to make payment of compensation or damages to the complainant or to the victim or member of his family as the commission may consider necessary, in the event the inquiry discloses violation of human rights or negligence in the prevention of such violation by a public servant.

14. A deep understanding of Section 18 of the Act together with Sections 12, 13 and 17 of the Act would go to show 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. This is evident from the statement of objects and reasons of the Act, wherein while describing the salient features of the Act, it has been stated by the Parliament as follows:-
" (3) The commission will be a fact-finding body with powers to conduct inquiry into the complaints of violation of human rights;"

15. Thus, there can be no doubt that the commission is only a fact-finding body and not an adjudicatory authority. If, it is an adjudicatory authority, there can be no doubt that on adjudicating upon the issues involved, the commission can pass an order which will be binding on the parties to the issues. But, as per the Scheme of the Act, the commission is not an adjudicatory authority at all. Therefore, the recommendations made by the commission under Section 18 of the Act cannot be termed as a verdict on resolving the disputed facts and thus the same is not binding on the parties before the commission.

16. In this regard, I may refer to the judgement of the constitution Bench of the Hon'ble Supreme Court in State of Karnataka v. Union of India and another, (1977) 4 SCC 608, wherein the provisions of the Commissions of Inquiry Act, 1952 [hereafter referred to the CI Act] came up for consideration. It is needless to point out that many of the provisions of the said Act, which I am going to refer to herein below, are in pari materia to the provisions of The Protection of Human Rights Act, 1993 [herein after referred to as "the HR Act"] It is needless to point out that a commission to be appointed under the CI Act also has got similar power to hold inquiry and submit a report to the Government. After having a complete survey of the provisions of the CI Act, speaking for majority, Hon'ble Chief Justice M.H.Beg in para 33 of the aforesaid judgement has held as follows:-

"33. .... The Act, however, contains no provisions for giving any effect to the findings of the Commission or for enforcing any order which could be made by the Commission against any person as a result of an inquiry. In fact, the only orders a Commission under the Act is empowered to make against anybody are those relating to adduction of evidence, whether oral or documentary, and those which may be required to protect the Commission against "acts calculated to bring the Commission or any member thereof into disrepute". The proceedings of a Commission could only result in a Report which is to be laid before the Legislature concerned under the provisions of Section 3(4) of the Act. Hence, the obvious intention behind the Act is to enable the machinery of democratic government to function more efficiently and effectively. ........"
17. In the said judgement , the Hon'ble Supreme Court has further referred to yet another judgement in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 wherein the Hon'ble Supreme Court had earlier held as follows:-
" The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision, which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken."

18. The Judgement of the Constitution Bench of the Hon'ble Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar, AIR 1958 SC 538 has also been referred to with approval. In Shri Ram Krishna Dalmia's case cited supra, the Hon'ble Supreme Court has held as follows:-

" .......As has been stated by the High Court itself in the latter part of its judgement, the only power that the Commission has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case "

19. In State of Karnataka v. Union of India and another , (1977) 4 SCC 608, in the concurring judgement, His Lordship Justice Y.V.Chandrachud [as he then was] has approved the view taken by Nagpur Bench of the Bombay High Court in M.V.Rajwade v. Dr.S.M.Hassan, AIR 1954 Nag 71 wherein it was held that Section 4 of the Act merely clothes the Commission with certain powers of a Civil Court but does not confer on it the status of a Court and that the Commission is only fictionally a Civil court for the limited purposes enumerated in Section 5(4) . The Court observed that there is no accuser, no accused and no specific charges for trial before the Commission, nor is the Government, under the law, required to pronounce one way or the other on the findings of the Commission.

20. In the said judgement in para 186 His Lordship Y.V.Chandrachud.J., has concluded as follows:-

"On receipt of the Commission's report, the Central Government may or may not take any action, depending upon the nature of the findings recorded by the Commission. If it decides to take any action, the validity thereof may have to be tested in the light of the constitutional provisions. But until that stage arrives, it is difficult to hold that the Central Government is exercising any control or supervisory jurisdiction over the executive functions of the State Government. As observed by this court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar, AIR 1958 SC 538, "the Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore."

21. Following the above judgements, a Full Bench of this court in P.P.M.Thangaiah Nadar Firm v. The Government of Tamil Nadu, 2006 (5) CTC 97 has held as follows:-

"40. It cannot be disputed that the report of a Commission of Inquiry is not binding on the State which constitutes such Commission of Inquiry nor its findings are binding on those against whom any recommendation is made. The conclusions of a Commission of Inquiry are not admissible in a Court of law, in criminal case or even in civil case. Such conclusions are merely advisory in nature."


22. In T.T.Antony v. State of Kerala, 2001 (6) SCC 181 a Division Bench of the Hon'ble Supreme Court after having followed Shri Ram Krishna Dalmia's case cited earlier has held in para 33 as follows:-

"33. It is thus seen that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act upon it. ....."

23. From the above judgements, it is ipso facto clear that the Commission's report under the Commissions of Inquiry Act is only in the nature of a recommendation and it is not an order on any adjudication. Therefore, the same is not binding on the parties who are likely to be affected by such recommendation. Nor is it binding on the Government as well.

24. Now the question is whether the above law laid down by the Hon'ble Supreme Court with reference to the Commissions of Inquiry Act [in short CI Act] could be imported to the HR Act. As I have already stated, one of the objects of the CI Act is "To appoint Commissions of Inquiry vesting with certain powers as a fact-finding body and to submit a report to the Government to enable the Government to take necessary action on the same". Similarly, as I have already extracted, "The State Human Rights Commission will be a fact-finding body with powers to conduct inquiry on the complaints of violation of human rights" [vide the objects and reasons of the Act]. Apart from this, most of the provisions in respect of the Functions, Powers and Procedure of the National Human Rights Commission / State Human Rights Commission are in pari materia to the provisions relating to the Functions, Powers and Procedure of the Commissions under the CI Act.

25. For instance, Section 13 of the HR Act deals with the powers relating to inquiries. It says that the Commission shall have the powers of a Civil Court trying a suit in particular in respect of the matters viz., summoning and enforcing the attendance of witnesses, examining them on oath, discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for the examination of witnesses or documents, any other matters which may be prescribed.

26. Section 4 of the CI Act is verbatim the same of Section 13 (1) of the HR Act. Similarly, Section 13 (2) of the HR Act is in pari materia to Section 5(2) of the CI Act. Section 13 (3) of the HR Act is in pari materia to Section 5(3) of CI Act. Section 13 (4) of HR Act is in pari materia to Section 5(4) of the CI Act. Section 13 (5) of the HR Act is in pari materia to Section 5 of the CI Act.

27. Section 14 of HR Act deals with the investigation and utilisation of services of certain officers. Section 5A of the CI Act is in pari materia to the said provision. Section 15 of the HR Act states that no statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement:- (a) is made in reply to the question which he is required by the Commission to answer ; or (b) is relevant to the subject-matter of the inquiry.

28. Section 16 of the HR Act states that the persons likely to be prejudicially affected to be heard. It states that he should be allowed to cross examine the witnesses who speak adverse to him and also produce evidence in his defence. Section 8-B of the CI Act is in pari materia which also provides for such right to the persons likely to be affected.

29. Section 18 of the HR Act, as I have already extracted, among other things, states that the Commission shall make a recommendation to the concerned Government or authority to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary [vide Section 18 (a) (i) of the HR Act]. Section 3 of the CI Act is in pari materia which states that the Commission shall submit a report.

30. As I have already stated, the nature of the Commissions under the HR Act is to function as a fact-finding body. The Commissions of Inquiry appointed under the CI Act also do the same job but in a different area. Thus, the functions, powers and procedure of the State Human Rights Commissions under the HR Act as well as Commissions under the CI Act are more or less similar.

31. Thus, both the Acts are in pari materia and so, the law laid down in the judgements cited supra shall be applicable to cases under the Protection of Human Rights Act as well. As held by the Hon'ble Supreme Court in various judgements, which I have extracted above, including the larger Bench of the Hon'ble Supreme Court in State of Karnataka v. Union of India and another, (1977) 4 SCC 608, I have to hold that the State Human Rights Commission is only a fact-finding body and it has got no power to adjudicate upon the disputed facts and also to issue any order to any party or to the Government so as to be complied with.

32. I may also refer to the National Commission for Minorities Act, 1992 wherein also Section 9 speaks of functions of the Commission, according to which, the commission shall perform viz., look into specific complaints regarding deprivation or rights and safeguards of the minorities and take up such matters with the appropriate authorities. There also what is submitted to the Government by the Commission is only a recommendation and such recommendation does not bind the Government. Section 10 of the National Commission for Women Act, 1990 also states that the Commission shall look into the complaints and take suo motu notice of matters relating to deprivation of women's rights, etc. Here also what is submitted by the Commission is only a recommendation and it does not bind the Government. National Commission for Backward Classes , 1993 and National Commission for Safai Karmcharis Act, 1993 are some of Central enactments wherein also Commissions appointed have to submit their reports/ recommendations to the Government which are not binding on the Government.

33. Having come to this conclusion, if I do not proceed further to deal with the duty of the Government on receipt of such recommendation from the Commission, it may leave an impression that the Government has no obligation at all to act upon the same. Exactly, a similar question came up for consideration before the Hon'ble Supreme Court in T.T.Antony v. State of Kerala, 2001 (6) SCC 181 wherein, the Hon'ble Supreme Court, as I have already extracted, has held that the Government is duty bound to consider the recommendations of the Commission and to act upon the same. I may also add that for any reason, if the State Government tentatively decides to accept the report of the Human Rights Commission, since such acceptance may result in civil consequences, the Government shall afford sufficient opportunity to the persons who are likely to be affected by the same [vide Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others, 1993 (4) SCC 727] .

34. The next question is a to whether at this stage [i.e.,] before a final decision is taken by the Government on the recommendation, the present writ petitions are premature warranting dismissal. In this regard, I may refer to a judgement of the Hon'ble Supreme Court in State of Bihar v. Lal Krishna Advani and others, AIR 2003 SC 3357. That was a case where a report submitted by a Commission appointed under the CI Act without following the principles of natural justice came up for consideration. While considering the same, in para 10, the Hon'ble Supreme Court has held as follows:-

"10. We have already observed that had it been only a question of any adverse action being taken against the person against whom some adverse finding has been recorded, the contention of the learned counsel for the appellant may perhaps would have been entertainable. The Government actually takes action or it does not or the fact that the report is yet to be considered from that angle, cannot be a reason to submit that it won't be appropriate stage to approach the Court . There may be occasions where after consideration of report the Government may not decide to take any action against the person concerned yet the observation and remarks may be such which may play upon the reputation of the person concerned and this aspect of the matter has been fully taken care of under Clause (b) of Section 8B of the Act. It is not, therefore, necessary that one must wait till a decision is taken by the Government to take action against the person after consideration of the report. We have already dealt with the point about the right to have and protect one's reputation. We, therefore, find no force in the submission that the respondent No.1 had approached the Court at pre-mature stage. "

35. In that case, it was contended before the Hon'ble Supreme Court, after referring to Shri Ram Krishna Dalmia's case [AIR 1958 SC 538] and State of Karnataka's case [1977 (4) SCC 608] cited earlier as follows:-
"The recommendations of Commission of Inquiry are not enforceable proprio vigore. It is not an adjudication. It is merely a recommendation of the Commission. On the basis of the decisions referred to above, much stress has been given on the point that this was not the stage for respondent No.1 to have approached the Court raising any grievance in respect of some observations made here and there while" inquiring into the Bhagalpur communal riots, its reasons and to recommend measures to check such recurrences in future."

This argument was, however, negatived by the Hon'ble Supreme Court which is obvious from the following observation :-

"10. We have already observed that had it been only a question of any adverse action being taken against the person against whom some adverse finding has been recorded, the contention of the learned counsel for the appellant may perhaps would have been entertainable."

36. Proceeding further the Hon'ble Supreme Court has held that there may be occasions where after consideration of report the Government may not decide to take any action against the person concerned yet the observation and remarks may be such which may play upon the reputation of the person concerned. Therefore, in that case the Hon'ble Supreme court held that since reputation of the individual is involved, he can challenge even the report submitted without waiting for the final decision of the Government. That was an exceptional circumstance. In the cases on hand, it is not at all the case of the petitioner that the report of the State Human Rights Commission, in any manner, is likely to cause injury to his reputation. Thus, appropriate final stage has not yet reached for the petitioner to make any challenge. He may wait till final decision is taken by the Government on the report. Thus, the present writ petitions are highly premature.

37. In the instant cases, the commission, in its recommendation, has not only recommended for payment of compensation to the victims , but has further gone to the extent of recommending to the Government to recover such amount from the petitioner. In this context I may state that the Government itself has got no power to order for recovery of the said amount from the public servant concerned, except in accordance with the service rules. If the service rules provide for recovery of such amount paid as compensation, which is a loss to the Government, after following the procedure contemplated in such service rules / regulations, the Government may recover such amount from the public servant concerned. In the cases on hand, the recommendation of the commission to recover the compensation amount straightway from the petitioner herein cannot be countenanced. Therefore, the Government is only obliged to consider such recommendation of the commission in the light of the relevant service rules applicable to the petitioner.

38. During the course of argument, there was also some debate on the power of the Government to initiate prosecution against the human rights violators before the Human Rights Courts. The said debate relating to Section 30 of the HR Act together with Section 2(d) of the HR Act is necessitated in these writ petitions because , on the recommendation of the State Human Rights Commission, not withstanding the fact that the recommendation is for payment of compensation, the Government may decide to prosecute the petitioner and the others who allegedly involved in the offences. In this context, it needs to be stated that regarding the power of Human Rights Court to take cognizance, it has been held by this Court in Dr.Sourubarani v. C.Selvi, 2005 1 L.W. [Crl.] 139 that since the Human Rights Court is deemed to be a Sessions Court, the Said Court cannot take cognisance of any offence without the case being committed to it in view of the bar contained in Section 193 of the Code of Criminal Procedure, 1973. Here again, on the recommendation of the Commission, the Government cannot straightway prosecute the matter before the jurisdictional Magistrate. On the basis of the Commission's report the matter has to be further investigated by the Police on the directions of the Government and thereafter a final report is to be submitted before the jurisdictional Magistrate. There upon the learned Magistrate will have to commit the case to the Human Rights Court for trial. It has also been well settled that pendency of the enquiry before the Human Rights Commission or even any order passed by the Government shall not prevent the victims of Human Rights Violation from filing a prosecution before the jurisdictional Magistrate by way of private complaint or to approach civil court for compensation. However, there appears to be a great amount of vagueness in Section 30 and Section 2(d) of the HR Act. Section 30 of the HR Act reads as follows:-

"30. Human Rights Courts.- For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences:

Provided that nothing in this section shall apply if- (a) a Court of Session is already specified as a special court; or (b) a special court is already constituted, for such offences under any other law for the time being in force."

39. The term "Human Rights" is defined in Section 2(d) of the HR Act as follows:-

"Human Rights" means the rights 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
40. A conjoint reading of these two provisions may lead one to believe that all the offences committed by public servants relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable in the Courts of India shall be tried only by the Human Rights Courts. A glance through the provisions of the Indian Penal Code would reflect that most of the penal provisions could be brought within the ambit of Section 2(d) of the HR Act. If Section 2(d) of the HR Act is so understood , it would automatically oust the jurisdiction of the ordinary criminal courts as against the public servants. In other words, all the public servants could be tried for these offences under the Indian Penal Code only by the Human Rights Courts. For instance, if a police constable treats his wife with cruelty, thereby committing an offence under Section 498-A of IPC or if the father of a public servant commits suicide due to abetment caused by the public servant making out an offence under Section 306 of IPC, such cases may have to be tried only by the Human Rights Courts. Surely, this position would not have been intended by the law makers. In practice, cases relating to Section 304 (B) of IPC committed by public servants are tried by the Court of Sessions, Additional Sessions and Assistant Sessions Courts. In the State of Tamil Nadu, these cases are not conducted by Special Public Prosecutors appointed under Section 32 of the HR Act as these cases are not tried by Human Rights Courts. Instead, the Public Prosecutors appointed under Section 24 of the Code of Criminal Procedure only do these cases. Similarly, the HR Act is very silent as to whether the Human Rights Courts can try the non-public servants along with the public servants while trying such public servants for the commission of offence committed all of them as a group in the same occurrence. These are all certain anomalies which have surfaced out of experience with the working of the Act. These anomalies should draw the attention of the law makers to debate and to decide to rectify the same by bringing in necessary amendments.

41. To sum up:-

(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.

(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.

42. Applying the above legal principles to the facts of the present cases, I have to hold that the report of the State Human Rights Commission in all these cases needs to be considered by the Government objectively by following the procedure indicated above. The State Human Rights Commission's report in all these cases shall not be construed as a direction to the Government. More particularly, the direction of the State Human Rights Commission to the Government to recover the compensation amount from the petitioner shall be treated only as a recommendation and not as an order.

43. In view of the above conclusions, I hold that these writ petitions, at this stage, are highly premature and they are not maintainable. Since I am inclined to dismiss these writ petitions as premature I do not deal with the other grounds raised in the writ petitions in respect of the merits of the recommendations of the human rights commission. It is for the petitioner to raise all these grounds by way of explanation to the Government, if he is called upon to do so by the Government. I am also hopeful that the short comings in the implementation of the Protection of Human Rights Act, 1993 which I have indicated hereinbefore, shall attract the attention of the law-makers and accordingly, the law-makers will debate and decide to make the Protection of Human Rights Act vibrant and workable by bringing in necessary amendments.

44. In the result, the writ petitions are dismissed as not maintainable at this stage. No costs.

kmk

To

1.The Secretary, Tamil Nadu State Human Rights Commission,
Chennai 600 014.

2.The Secretary to Government, Home Department, Fort St.
George,
Chennai 600 009

Courtesy_

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This Blog Spot is meant for publishing landmark judgments pronounced by the Court of law as we collected from the renowned Dailies, Magazines, etc., so as to create an awareness to the general public and also to keep it as a ready reckoner by them. As such the readers may extend their gratitude towards the Original Author as we quoted at the bottom of each Post under the title "Courtesy". Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.



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