Meera Emmanuel

In a landmark ruling, a Full Bench of the Madras High Court has ruled that decisions taken by the Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993are binding on the government and that the State does not have any discretion to avoid its implementation (Abdul Sathar versus The Principal Secretary to Government, Home Department and others).

A Bench of Justices S Vaidyanathan, V Parthiban and M Sundar rendered the decision following a reference made by a Division Bench in 2017 upon noticing divergent views in the matter.

“The recommendation of the Human Rights 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,” the Court ruled.

Pertinently Section 18 of the Human Rights Act deals with the steps a Human Rights Commission may take upon the completion of an inquiry into an alleged violation of human rights.

If the Commission finds that there has been a violation of human rights by a public servant, it can recommend that the concerned government authority carry out any of the following measures:

• to pay compensation or damages to the complainant or victim or the family of the complainant or victim;
• to initiate proceedings for prosecution or such other suitable action against the concerned person or persons;
• to take such further action as the commission may think fit.

Section 18 (b) adds that the Commission may approach the Supreme Court or the High Court for such directions, orders or writs as that Court may deem necessary.

The recommendation of the Human Rights Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable.

Madras High Court

What the Madras High Court Full Bench has ruled

• 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.
• The State has no discretion to avoid implementation of the recommendation. In case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission in court.
• The Commission can order recovery of compensation payable to the victims of the violation of human rights from the State. The State could recover the compensation paid from the officers of the State who have been found to be responsible for causing human rights violation.
• 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 of whether he was responsible for causing human rights violation.
• 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 the imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental inquiry may be conducted only to ascertain the extent of culpability of the official concerned in causing the violation. This is for the punishing authority to formulate an opinion as to the proportionality of the punishment to be imposed on the official concerned. This is only in cases where it is recommended by the Commission that the delinquent official may be meted out a major penalty. For minor penalties, a mere show cause notice is fair enough.
• The officers/employees of the State who have been found responsible for causing the violation of human rights by the Commission are entitled to challenge the Commission’s orders in court.
• Since the recommendation of the Human Rights Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage, with respect to the complaint or inquiry by the Commission, but only on substantial legal grounds.

Amend Human Rights Act to give more teeth to Human Rights Commission: Madras High Court

In passing the ruling, the Court also opined that there is a need to introduce statutory changes so as that the Human Rights Act becomes a self-contained law conferring the Human Rights Commission powers to execute its recommendations.

This was in view of the concern that in the absence of inbuilt provisions within the Act, there is a perception that the recommendations 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 our governance,” the Bench said.

The Court suggested that suitable amendments be made to the law to provide 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,” the Court said.

Advocate B Vijay assisted the Court as Amicus Curiae in the matter. Advocates R Srinivas and Arun Anbumani appeared for the petitioner in the case. Additional Solicitor General Sankaranarayan, assisted by Central Government Standing counsel MP Jaisha and Additional Advocate General Narmatha Sampath appeared for the respondents.

courtesy Bar and Bench