Unanimous Verdict ( FB) -Lending Teeth and Might to Human Rights Commissions Narasimhan Vijayaraghavan (Justices S. Vaidyanathan, V. Parthiban and M. Sundar) Recently, I had occasion to pen a piece on Justice H R Khanna, as a master and daring dissenter in ADM Jabalpur (SC) , during the troublesome internal emergency vintage times in India. I extracted the following quotes from his brilliant dissent, which has shone bright ever since.

Unanimous Verdict ( FB) -Lending Teeth and Might to Human Rights Commissions
Narasimhan Vijayaraghavan

(Justices S. Vaidyanathan, V. Parthiban and M. Sundar)

Recently, I had occasion to pen a piece on Justice H R Khanna, as a master and daring dissenter in ADM Jabalpur (SC) , during the troublesome internal emergency vintage times in India. I extracted the following quotes from his brilliant dissent, which has shone bright ever since.

“The cases before us raise questions of
utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic values affecting life, liberty and the rule of law. More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of an order. What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we say with justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law, even if it chooses to act contrary to law or in an arbitrary and capricious manner. The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment, even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat”.

And then again,

“Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethren has not stood in the way of my expressing the same. I am aware of the desirability of unanimity, if possible. Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes, judges are not there to simply decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice.”

Now, closer home, I have got this wonderful opportunity to go eloquent on ‘unanimity’ as opposed to ‘dissent’. Justice H R Khanna beautifully dissented, while alluding to unanimity for the sake of unanimity as anathema to one’s own conscience. Now, I grow big to say that three learned judges from the Madras High Court- Justices S Vaidyanathan, V Parthiban and M Sundar, in one fell swoop, have done the institution, immense proud to elevate their unanimity to the status of the daring dissent of Justice H R Khanna. Current Tamil Nadu Cases, Chennai is no New York Times and I have no editorial pedigree to eulogise on this ‘unanimity’, like Justice H R Khanna attracted for his dissent.

Authored by Justice V Parthiban and said to be running to near 500 pages, going by the answers to the Terms of Reference, extracted below, it is a ringing and rounded affirmation of the elevated status of Human Rights -with a a capital H and R- as in Justice H R Khanna. It is unfair or rather lacking in propriety to comment on a judgment without having the benefit of it in full. But this is different, as the answers to the Terms of Reference made to the Full Bench, contain everything that one needs to know and the basis upon which the 3 brothers on the bench reached unanimity to infuse teeth and meaning to Human Rights Commissions in India, literally pales, even on the constitutional plane, for this paused minute.

The answers are pregnant with meaning. They have given enormous thrust and lent the much needed impetus to Human Rights Commissions, to invigorate the fundamental rights to life and liberty, which are the ‘heart and soul of our constitution’ as the father of the mother of all laws, Dr. Babasaheb Ambedkar put it.

The summing up is exquisite and succinct as it needed to be and as it has turned out to be as well . More power to the life and times of such Justices in the Khanna mould , burying the ghost of ADM Jabalpur many more fathoms deep and beyond, as in Justice K S Puttasamy and Ramdeo Chauhan genres, from the top court.

For now, it may suffice to extract what is available in public domain as a pronouncement- with the operative portion being read by Justice V Parthiban, sitting in the Madurai Bench on 5th February,2021, Friday. As for the reasons and basis leading to the answers which have infused huge life and meaning to Human Rights Commissions in India, a long felt and dire need in the times we live in, well, for the compulsive writer this author is, when fully out or uploaded, in a day of two, it would or could be grist for further mill in these columns. What else?

“ IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 29.09.2020
Delivered on:05.02.2021
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
AND
THE HONOURABLE MR. JUSTICE M.SUNDAR
W.P.Nos.41791/2006, 31071/2005, 3861/2010, 7151/2010,
7152/2010, 16751/2010, 13164/2010, 24646/2010,
26496/2010, 28551/2010, 12823/2011, 14942/2011,
20045/2011, 20073/2011, 20883/2011, 20950/2011,
23997/2011, 28616/2011, 1870/2012, 6519/2012,
10063/2013, 19297/2013, 19562/2013, 32041/2014,
22760/2017, 25166/2017, 28604/2018, 28611/2018,
29295/2018, 29300/2018, 30709/2018, 30867/2018,
33652/2018, 7201/2019, 17071/2019, 17577/2019,
27708/2019, 35379/2019 and W.P.(MD) Nos.15492/2012,
25881/2019 and 27187/2019

W.P.No.41791 of 2006:
Abdul Sathar …. Petitioner
Versus
1.The Principal Secretary to Government,
Home Department,
Fort St. George,
Chennai-600 009

2.The Secretary to Government,
Public Department,
Fort St. George,
Chennai-600 009
3.The State Human Right Commission,
rep. by its Acting Chairperson,
Greenways Road, Chennai-600 028.
4.Poovarasu
5.The Registrar,
National Human Rights Commission, GPO Complex,
Manav Adhikar Bhavan, C-Block,
INA New Delhi-110 023.
6.The Secretary to Government,
Union of India,
Ministry of Social Justice, Shastri Bhavan,
C-Wing, Dr.Rajendra Prasad Road,
New Delhi-110011.
7.The Home Secretary,
Union of India,
Ministry of Home Affairs,
North Block, New Delhi-110001. .. Respondents
(R5 to R7 impleaded as per the Court
order dated 26.06.2019 made in
WMP No.17549 of 2019 in
WP.No.41791 of 2006)
Prayer: Petition filed under Article 226 of The Constitution of India praying for issuance of a Writ of Certiorari to call for the records relating to the recommendation made in SHRC case No.73/47 of 2004 dated 03.08.2006 on the file of the third respondent and quash the same.
For Petitioner .. Mr.R.Srinivas Mr.Arun Anbumani
For Respondents .. Mr.Sankara Narayan,
Addl.Solicitor General
assisted by Ms.M.P.Jaisha,
Central Govt.Standing Counsel
Ms.Narmatha Sampath, AAG
Mr.B.Vijay, Amicus Curie

490. In the conspectus of the above discourse, the following is our summation to the terms of the Reference:
(i) 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. 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 H.R.Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable. If the concerned Government or authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e) of the Act, the Commission can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate Writ/order/direction. We having held the recommendation to be binding, axiomatically, sanctus and sacrosanct public duty is imposed on the concerned Government or authority to implement the recommendation. It is also clarified that if the Commission is the petitioner before the Constitutional Court under Section 18(b) of the Act, it shall not be open to the concerned Government or authority to oppose the petition for implementation of its recommendation, unless the concerned Government or authority files a petition seeking judicial review of the Commission’s recommendation, provided that the concerned Government or authority has expressed their intention to seek judicial review to the Commission’s recommendation in terms of Section 18(e) of the Act.
(ii) 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: As our answer is in the affirmative in respect of the first point of Reference, the same holds good for this point of Reference as well. We having held that the recommendation is binding, 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.

(iii) 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 we have held that 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 of the Act 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, we clarify 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.

‘(iv) 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 concerned Government. 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.

(v) 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 we have held that 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.
491. As a corollary to the above conclusion, since the recommendation of the H.R.Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage qua complaint or inquiry by the Commission but only on substantial legal grounds.”

It is a mouth-watering look out and prospect of a certain and sure escalation to the Supreme Court by the State. One dreads to think if the ‘teeth’ that Justice V Parthiban has authored into the Human Rights Act, and convinced his brothers to assent to, may be seen as not being statutorily ‘there’ in the statutes by the top court and categorised as Judicial Legislation. Would this infused power of bite, prove to be of a transient and ephemeral kind, or the legal fiction seen to be real, live and mandatory. Watch this space for more.

(Author is practising advocate in the Madras High Court)