Madras High Court: A Full Bench of S. Vaidyanathan, V. Parthiban and M.Sundar, JJ. held that the recommendation of the Human Rights Commission made under Section 18 of the Protection of Human Rights Act, 1993 (“Human Rights Act”) is binding on the Government or the Authority concerned. The Government is under a legal obligation to forward its comments on the Report including the action taken or proposed to be taken to the Commission in terms of sub-clause (e) of Section 18. Therefore, the recommendation of the Human Rights Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable.
While answering the questions referred to it, the Court observed:
“In our considered view the word ‘recommendation’ appears in the Act under Section 18 is to be considered as euphemism for the expression ‘order’. An embellished expression drafted into the Act more in tune with the word ‘Commission’ as it understood in common parlance, but may not be intended to reduce the functional status of the Commission as a toothless Tiger.”
The Court said that if such interpretation is not forthcoming, then the high powered Human Rights Commission established under the Act would be denuded of its judicial character, notwithstanding the Commission being manned by former Chief Justice of India, Supreme Court Judges, Chief Justice of High Court, etc. It could not have been the true intention of the framers to have the Commission packed with high judicial dignitaries, but rendering the functioning of the Commission a powerless, inchoate institution worth only on the text of the Statute.
The origin of the dispute, which culminated into the present Reference, can be traced as follows: The starting point of divergence of the judicial opinions began with the decision rendered in Rajesh Das v. T.N. State Human Rights Commission, 2010 SCC OnLine Mad 4543. This decision was penned by S. Nagamuthu, J. who held that recommendation of the Commission under Section 18 was neither an order nor an adjudication and it remains as a recommendation only and as a corollary, and that the recommendation was not binding on the parties to the proceedings including the concerned Government.
Shortly, after the above judgment, another Single Judge, K. Chandru, J. in T. Vijayakumar v. T.N. State Human Rights Commission [WP (MD) No. 12316 of 2010, dated 29-9-2010] differed and disagreed with the views expressed in Rajesh Das case. Thereafter, a few Division Benches had upheld the views in Rajesh Das case.
Finally, a Division Bench in Abdul Sathar v. State [WP No. 41791 of 2006, dated 25-7-2017] felt that there have been divergent views on the status of the “recommendation” made by Human Rights Commission under Section 18 of the Human Rights Act. In pursuance of the same, the reference landed before the instant Full Bench.
B.The not-so Undercurrent
“No organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.”
─ Abraham Lincoln
The idea that ran through the entire analysis of the issues, in the 517-pages long judgment, was the manner of interpretation adopted by the Court. The Court was fairly explicit while stating that:
“It is needless to emphasize that in public law remedy, all the provisions of the Act are to receive broad and liberal construction. In our expedition towards innovative interpretation, mere etymological or lexicon understanding of the expressions within the limited contours of the Act as it perceived would only lead to statutory dead end and would hit cul-de-sac. If we veer around the so-called limited contours of the Act as it perceived, the purpose and the objects behind the enactment would be lost. When certain unintended shortcomings are impeding the effective functioning of the Commission under the Act, as a Constitutional Court, our paramount duty is to save the Act and the Commission functioning under it, from continuing as a toothless and fossilized institutionalized mechanism.”
Protection of Human Rights is not to be pigeon-holed, into a statutory cage and the Commission in the role of the protector of the rights is not to be relegated to a subservient position to the executive. The fundamental rights which are guaranteed in the Constitution of India, are the human rights defined under the Act. Therefore, any interpretation of the statutory provision tantamount to interpretation of the fundamental rights as well, as guaranteed by the Constitution of India. When a Commission is constituted for securing the fundamental rights of the citizens, such Commission being a protector of the human rights, cannot function with emasculated enforceable power.
“Human Rights Commission created to address the exalted human rights concerns is not a show-piece to the world as a token of conformity to the commitment of India to the Universal Declaration of Human Rights and International treaties, viz., International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights. 1966. The institution’s reach and the functional efficacy must be real to carry its constitutional obligation to the hilt.”
C. Analysis & Reasoning
C.1. Section 2(d) of the Human Rights Act
The Court referred to the definition of “human rights” as given under sub-clause (d) of Section 2, and was of the view that the rights are relatable to what is provided in the Indian Constitution and defined as fundamental rights and which are embodied in the International Covenants and enforceable in India. The definition provides a key to the understanding of the Act, its purpose, scope and enforceability. By the very definition of “human rights”, the Human Rights Act becomes a statutory extension of the constitutional rights. In that view of the matter, the interpretation of the Act is not be confined within the statutory boundaries as it perceived, but the rights which are to be protected under the Act require to be examined and appreciated from the Constitutional perspective as well.
C.2. Sections 3 to 17 of the Human Rights Act
The Commission in the course of its inquiry, is clothed with all the powers relating to the inquiries as seen from Section 13 of the Act. The Commission is deemed to be a Civil Court and the proceeding shall also deemed to be a judicial proceeding within the meaning of relevant provisions of the CPC, IPC, CrPC, etc. The Commission is vested with the power of the Civil Court under Section 13 of the Act. Therefore, the Commission enjoys as a whole the status of a Civil Court while conducting inquiries into the complaints.
The provisions as contained in Sections 13 to 17 would cumulatively showcase that the inquiry undertaken by the Commission is a full-fledged investigation and trial. In fact, Regulations 20 to 25 which are framed under the Act, viz., State Human Rights Tamil Nadu (Procedure) Regulations, 1997 provide an elaborate procedure for conducting inquiry including grant of adequate opportunity of personal hearing and also opportunity of cross examining the witnesses. The Regulations and the Act put together, would clearly demonstrate that the Commission in the course of its inquiry undertakes a full-fledged trial before coming up with a finding and makes its recommendation under Section 18 of the Act.
C.3. Section 18 of the Human Rights Act
As per the Court, the most important section in the Act is Section 18 (steps during and after inquiry) which is the very soul of the Act and every limb of Section 18 needs to be examined, comprehending the purpose, status and the nature of recommendations of the Commission.
C.3.1. Section 18 provides a procedure to be followed during or after inquiry. As far as “during inquiries” concerned, sub-clause (c) comes into play which reads as under:
“(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.”
The Commission, when it is satisfied even during the course of the inquiry, is empowered to recommend for grant of immediate interim relief to the victim. When the Commission is vested with the power of making recommendations for grant of immediate relief, such provision would have to be construed on a natural corollary to construct that the recommendation granting immediate relief is binding on the Government for payment of interim relief as recommended by the Commission. The word “immediate” used in the provision would have to be understood as “immediate compliance”. If the recommendations of the Commission are treated to be only “recommendatory” and the implementation of the same ought to depend upon the discretionary response of the Government or Authority, such expression would be stripped-off its natural meaning and loses its relevance in the context. Therefore, the word “immediate” in the provision defines the recommendation of the Commission as to its binding nature. The only option for the Government is to move the appropriate legal forum against the immediate relief granted by the Commission.
C.3.2. Likewise, when the Commission finds that there was commission of violation of human rights in terms of sub-clause (a)(i) and (ii), it can recommend for making payment of compensation or damages or to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit. The word “recommendation” in the context of these provisions, ought not to be given its ordinary or literal sense of the meaning. Merely because the framers used the word “recommendation”, the binding decision of the Commission cannot be whittled down to mere recommendation as it understood in common parlance. When the recommendation as contemplated under Section 18 is made, after following the elaborate procedure laid down in terms of the other provisions of the Act, namely, Sections 13 to 17, such recommendation assumes the character of adjudicatory order which shall be binding on the concerned Government or Authority.
C.3.3. Further reference was made to sub-clause (e) and (f) of Section 18 which make the Commission a judicial forum of different ilk unlike the other Commissions constituted under similar enactments. Sub-clause (e) of Section 18 is reproduced again hereunder:
“(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.”
The above provision contemplates two steps to be followed, viz., (i) by the Commission itself and (ii) by the Government or Authority concerned. The Commission is under obligation to forward its report along with the recommendation and the Government or Authority is correspondingly under an obligation to forward its comments on the report as to what action taken or proposed to be taken thereon, to the Commission. Thereafter, the Commission shall publish the inquiry report as provided under Sub Clause (f) which reads as under:
“(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.”
In Court’s opinion, from a thorough reading of the above sub-clauses and with reference to other provisions of the section, one cannot but come to an inexorable conclusion that the Government or Authority concerned is legally bound to either inform the Commission within the stipulated time, “the action taken” or “proposed to be taken” on the recommendation of the Commission. For illustration, the concerned Government may offer its comments to the Report as to the action taken in implementation of the recommendation or may inform the Commission that it proposed to challenge the Commission’s recommendation before the competent Court. On such action taken or proposed to be taken being revealed to the Commission, sub-clause (f) is pressed into service, namely, publication of the inquiry report together with the comments. But the section mandatorily leave no scope for the third option i.e. informing the Commission of “non-acceptance of the recommendation”.
C.3.4. As to the enforceability of the recommendations of the Commission on its own, there is no provision in the Act. The Court found that it is true that the Act does not contain any specific chapter or provisions for enforcing its own recommendations unlike in certain other enactments referred like Arbitration Act and Consumer Protection Act, etc. But the present Act, in the absence of inbuilt provisions enabling the Commission to enforce its recommendation directly, has been provided with specific provision in Section 18(b) by conferring the status of locus standi to the Commission to enforce its recommendation through constitutional route.
Reference was also made to the subsequent and relevant amendments that have taken place in the Act. In 2006, important amendments have been introduced in the Act, particularly, in Section 18(a), sub-clauses (i) to (iii) have been introduced which read as under:
(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;”
Court said that the above provisions without any iota of doubt, are ample proof that the Commission was clothed with additional powers during and after inquiry. Firstly, it can recommend for payment of compensation to the complainant or to the victim. Secondly, it can initiate proceedings for prosecution against the persons concerned. And thirdly, to take further action as it may think fit. These amended provisions reinforce the fact that the Commission has been clothed with additional powers. When the Commission is endowed with the jurisdiction of recommending payment of compensation or damages, initiating proceedings for prosecution and also to take further action as it may think fit, all that powers which are exercisable by the Commission are not meant to be a vain or fruitless exercise. When the expression “action” used in sub-clause (iii), the natural meaning of the same is something more than what means as a recommendation simplicitor. The word “action” in Section 18 is akin to the Government or Authority taking action in discharge of its duties. The only way to avoid implementation of the Commission’s recommendation by the Government or Authority is to approach the competent Court seeking judicial review by challenging the recommendations.
D. Answer to the Reference
After a comprehensive discussion, the crux of which is summarised above, the Court went on to the answer the questions referred to it:
(1) Whether the decision made by the State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993, is only a recommendation and not an adjudicated order capable of immediate enforcement, or otherwise?
Ans.: The recommendation of the Commission made under Section 18 of the Act, is binding on the Government or Authority concerned. The Government is under a legal obligation to forward its comments on the Report including the action taken or proposed to be taken to the Commission in terms of sub-clause (e) of Section 18. Therefore, the recommendation of the Human Rights Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable. If the Government or Authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e), the Commission can approach the Constitutional Court under Section 18(b) for enforcement by seeking issuance of appropriate writ/order/direction.
It was also clarified that if the Commission is the petitioner before the Constitutional Court under Section 18(b), it shall not be open to the Government or Authority to oppose the petition for implementation of its recommendation, unless the Government or Authority files a petition seeking judicial review of the Commission’s recommendation, provided that the Government or Authority has expressed their intention to seek judicial review to the Commission’s recommendation in terms of Section 18(e).
(2) Whether the State has any discretion to avoid implementation of the decision made by the State Human Rights Commission and if so, under what circumstances?
Ans. The State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission.
(3) Whether the State Human Rights Commission, while exercising powers under sub-clauses (ii) and (iii) of clause (a) of Section 18 of the Protection of Human Rights Act, 1993, could straight away issue orders for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause (i) of clause (a) of Section 18 of that enactment, from the Officers of the State who have been found to be responsible for causing such violation?
Ans. Yes, as the recommendation of the Commission under Section 18 is binding and enforceable, the Commission can order recovery of the compensation from the State and payable to the victims of the violation of human rights under sub-clause (a)(i) of Section 18 and the State in turn could recover the compensation paid, from the Officers of the State who have been found to be responsible for causing human rights violation.
However, it was clarified that before effecting recovery from the Officer of the State, the Officer concerned shall be issued with a show cause notice seeking his explanation only on the aspect of quantum of compensation recoverable from him and not on the aspect whether he was responsible for causing human rights violation.
(4) Whether initiation of appropriate disciplinary proceedings against the Officers of the State under the relevant service rules, if it is so empowered, is the only permissible mode for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause (i) of clause (a) of Section 18 of the Protection of Human Rights Act, 1993, from the Officers of the State who have been found to be responsible for causing such violation?
Ans. As far as the initiation of disciplinary proceedings under the relevant Service Rules is concerned, for recovery of compensation, mere show cause notice is sufficient in regard to the quantum of compensation recommended and to be recovered from the Officers/employees of the Government concerned. However, in regard to imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental enquiry may be conducted only to ascertain the extent of culpability of the Official concerned in causing violation in order to formulate an opinion of the punishing Authority as to the proportionality of the punishment to be imposed on the official concerned. This procedure may be followed only in cases where the disciplinary authority/punishing authority comes to the conclusion on the basis of the inquiry proceedings and the recommendations of the Commission that the delinquent official is required to be visited with any of the major penalties enumerated in the relevant Service Regulations.
As far as imposition of minor penalty is concerned, a mere show cause notice is fair enough, as the existing Service Rules of all services specifically contemplate only show cause notice in any minor penalty proceedings.
(5) Whether Officers of the State who have been found to be responsible by the State Human Rights Commission for causing violation of human rights under Section 18 of the Protection of Human Rights Act, 1993, are entitled to impeach such orders passed by the Commission in proceedings under Article 226 of the Constitution and if so, at what stage and to which extent?
Ans. As the recommendation of the Commission under Section 18 of the Act is binding and enforceable, the Officers/employees of the State who have been found responsible for causing violation of human rights by the Commission, are entitled to assail such orders passed by the Commission by taking recourse to remedies of judicial review provided under the Constitution of India. It is open to the aggrieved officers/employees to approach the competent Court to challenge the findings as well as recommendations of the Commission.
E. Proposed Amendment
Before parting with the Reference, the Court felt constrained to express that despite all the provisions in the Act, covering wide spectrum of human rights concerns in consonance with the Rule of Law governing polity, in the absence of an inbuilt and integral provision within the explicit frame work of the Statute, a perception has been gaining ground in the corridors of the implementing authorities that the recommendation of the Human Rights Commission lacks legal sanctity and hence can be trifled with. Such perception and point of view on the part of the implementing authority may not augur well towards addressing the complaints of human rights violation in the country where the written Constitution reigns supreme and is placed at the altar of governance.
Although the history after the introduction of the Act, reveals that by and large the recommendations of the Commission have been implemented, any discretion to the implementing authorities to either accept or not accept the recommendation would only lead to avoidable delay, forcing the Commission to invoke Section 18(b) of the Act.
The Court was of the considered opinion that the intention of the framers may be given a statutory sanction within the Act itself to make the Act a complete code in itself instead of invoking the jurisdiction of the Constitutional Court for execution of the recommendation. The Court said:
“We earnestly trust and hope that the Parliament in its collective wisdom would bring necessary amendments in the Act to provide wherewithal to the Commission for direct execution of the recommendation. By such initiation, the Parliament would be according befitting status to the Commission steered by the high constitutional dignitaries of the highest legal order.”
In the said circumstances, the Court suggested to the policy makers to make suitable amendment/s in the Act providing for an internal/self-contained mechanism qua Human Rights Commission for enforcing its recommendations under Section 18 of the Act. By such amendment/s, the Act would become complete in all fours, leaving no room for procrastination in offering remedial action promptly.
F. Note of Appreciation
The Court placed on record its appreciation to all the counsel and party-in-person, who appeared and assisted the Court for this “mammoth and momentous task of finding answers to the terms of the Reference“. In particular, the Court appreciated the meticulous homework, articulate and painstaking submissions made by R. Srinivas, ably assisted by Arun Anbumani, counsel for the State Human Rights Commission; B. Vijay, Amicus Curiae; Naga Saila and Sarath Chandran, counsel for enriching the Bench to gain insight into the relevant and important case laws, conventions, treaties and other related materials.
G. Ringing Down the Curtain
All the individual writ petitions will now be posted before the Benches concerned for disposal on the respective merits of the writ petitions, after taking note of the answers to this Reference. [Abdul Sathar v. State, WP No. 41791 of 2006, dated 5-2-2021]