STATE OF U.P. and 2 OTHERS V. NATIONAL HUMAN RIGHTS COMMISISON

WRIC/7890/2014

AI Insights

The case revolves around a writ petition filed by the State of U.P. challenging a communication from the NHRC, which requested a report on the actions taken by the State in response to the NHRC's recommendations regarding compensation for human rights violations. The NHRC had previously found that there was a grievous violation of human rights in the case of Shamim, who died under circumstances warranting state compensation. The court examined the statutory powers of the NHRC under the Protection of Human Rights Act, 1993, particularly focusing on Section 18, which outlines the Commission's powers post-inquiry. The court concluded that the NHRC's request for a report was a legitimate exercise of its powers and dismissed the petition.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 726694 (HC-UTTAR_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 01-02-2019
• Assessment Year: misc
• Other Referred Cases: State of UP and 2 Ors. Vs. NHRC & 3 Ors., UP Power Corporation Ltd. & Anr. Vs. NHRC & Anr., Tinsukhia Electric Supply Com. Ltd. Vs. State of Assam & Ors., Commissioner of Income Tax Vs. M/s Hindustan Bulk Carriers
• Laws Referred To: Protection of Human Rights Act, 1993
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ABHINAVA UPADHYA; YOGENDRA SRIVASTAVA
• Assessee Lawyers: PIYUSH SHUKLA; RAMESH UPADHYAYA
• Keywords: Compensation; Human Rights; Violation; NHRC; Report Compliance
• Section: 18

Judgement Text

"1 AFR Court No. - 38 Case :- WRIT - C No. - 7890 of 2014 Petitioner :- State Of U.P. And 2 Others Respondent :- National Human Rights Commisison Counsel for Petitioner :- Piyush Shukla,Ramesh Upadhyaya Counsel for Respondent :- S.C. Hon'ble Abhinava Upadhya,J. Hon'ble Dr. Yogendra Kumar Srivastava,J. (Per : Dr. Yogendra Kumar Srivastava,J.) 1. The present writ petition has been filed seeking to challenge a communication dated 24.05.2013 whereby the observations made and directions issued by the National Human Rights Commission (in short the 'NHRC') while considering a matter in exercise of powers under the Protection of Human Rights Act, 1993 (in short the 'Act, 1993'), on 16.05.2013, were forwarded with a request that a report in the light of the directions be sent to the Commission by 05.09.2013 for further consideration. 2. The facts of the case as disclosed from the petition before us are that upon an intimation dated 30.03.2010 received from the Senior Superintendent of Police, Ghaziabad, UP regarding the death of one Shamim son of Mujiburrahman on 29.03.2010, the Commission on 09.04.2010 directed the Director General of Police, UP, District Magistrate, Ghaziabad and Senior Superintendent of Police, Ghaziabad, UP to take appropriate action with regard to investigation of the case as per the guidelines laid down by the Commission in its letter dated 02.12.2003. The Commission on 15.04.2010 requested the Senior Superintendent of Police, Ghaziabad, UP that the action taken report be sent to the Commission. 3. Subsequently a show cause notice dated 05.10.2012 was issued to the Chief Secretary, Government of UP, under Section 18 of the Act, 1993 (Act No.10 of 1994) to show cause why suitable monetory relief 2 be not recommended to be paid to the next of kin of the deceased. 4. Upon considering the reply dated 04.12.2012 submitted in response to the show cause notice, the Commission on 16.05.2013 held that grievous violation of human rights had been committed for which it would be appropriate for the State to make reparations and the Commission made a recommendation that a payment of Rs.5,00,000/- as relief be made to the next of kin of the deceased. 5. In the light of the aforementioned directions the communication dated 24.05.2013 was sent in terms of which the Chief Secretary, Government of UP was requested that a report in the light of the directions issued by the Commission on 16.05.2013 be sent for further consideration. 6. It is at this stage that the petitioners have come up before this Court seeking to challenge the communication dated 24.05.2013 issued by the NHRC. 7. Heard Sri Suresh Singh, learned Additional Chief Standing Counsel for the petitioners, and perused the record. 8. The principal ground of challenge raised in the writ petition is that the powers of NHRC under Section 18 of the Act, 1993 are confined only to making a recommendation to the State Government, and that no directions could have been issued to call for a report on the action taken. 9. In order to appreciate the contentions raised in the present petition it would be appropriate to consider the relevant statutory provisions. 10. The Act, 1993 was enacted to provide for the constitution of National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and for matter connected therewith or incidental 3 thereto. 11. The Statement of Objects and Reasons of the Act makes reference to the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16.12.1966 and also the fact that India is a party to the said covenants. 12. The ambit and scope of the functions of the NHRC constituted under the Act No.10 of 1994 has been considered in detail in State of UP and 2 Ors. Vs. NHRC & 3 Ors.1, wherein it was observed as follows:- \"9. The National Human Rights Commission has been constituted, together with the State Human Rights Commissions, “for better protection of human rights” and for related ancillary matters. The Commission is a high powered body whose Chairperson is a person who has been the Chief Justice of the Supreme Court. Among its members is a person who is, or has been a Judge of the Supreme Court; and another who is, or has been the Chief Justice of a High Court. Two other members are to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. The appointment of the Chairperson and Members is by a Committee chaired by the Prime Minister and which includes among other persons, the Speaker of the Lok Sabha, Union Minister of Home Affairs, the leaders of the opposition in the Lok Sabha and Rajya Sabha and the Deputy Chairperson of the Rajya Sabha. The presence of these high dignitaries on the selection committee is indicative of the importance which Parliament has ascribed to the functions of the Commission. 10. The functions of the Commission under Section 12 include among other things, the power to inquire suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction of a court, into a complaint of the violation of human rights or abetment thereof or negligence in the prevention of such a violation, by a public servant. 11. Section 12 which defines the functions of the Commission is in the following terms: “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 [or on a direction or order of any court], 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 1 2016 (4) ALJ 98 4 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 organisation and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the promotion of human rights.” 12. When it makes inquiries, the Commission under Section 13 has all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 and, in particular, in respect of the matters enumerated therein. The Commission for the purposes of investigation is empowered under Section 14, to utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government. The procedure before the Commission is governed by Chapter IV of which Section 17 provides an enquiry into a complaint of a violation of human rights. The Commission is empowered to call for information or a report from the Central Government or State Government or any other authority or organization subordinate to them.\" 13. We may note that in the aforesaid case, on a similar set of facts an order passed by the NHRC during the course of inquiry under the Act No.10 of 1994 had been called in question raising a similar plea that the power of the Commission under Section 18(a)(i) of the Act being recommendatory in nature, the direction to furnish proof of compliance was contrary to law and was liable to be set aside. 14. Considering the scope of the powers of recommendation under the Act, 1993 (Act No.10 of 1994) and, in particular, referring to 5 Section 18 of the Act, this Court in State of UP and 2 Ors. Vs. NHRC & 3 Ors. (supra) held as follows:- \"13. Section 18 deals with the steps to be taken during and after the enquiry and is in the following terms: “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 negligence in the prevention of violation of human rights or abetment thereof by a public servant, 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 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; (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.” 14. Section 18 vests wide powers in the Commission. Under clause (a), it is empowered to recommend the payment of compensation or damages to the concerned government or authority where the enquiry has disclosed the commission of a violation of human rights or negligence in the prevention of a violation of human rights or abetment thereof. The provisions of Section 18(a) correspond to the functions of the Commission specified in Section 12(a). The Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as that Court may deem necessary. The Commission under clause (c) of Section 18 can recommend to the concerned government or authority at any stage of the enquiry to grant interim relief to the victim or the members of his family. Under clause (e), the Commission has to send a copy of its 6 inquiry report together with its recommendations to the concerned Government or authority which shall, within a period of one month or such further time as may be allowed, forward its comments on the report, including the action taken or proposed to be taken thereon to the Commission. 15. These provisions emphasize three aspects. First, the enactment of the Protection of Human Rights Act, 1993 is an intrinsic part of the enforcement of the fundamental right to life and personal liberty under Article 21 of the Constitution. Equally, by enacting the legislation, Parliament has evinced an intention to enact legislation in compliance with India's obligations under the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations. Secondly, the Commission is a high powered body which has been vested with exhaustive powers to order an investigation, conduct enquiries and for which it is vested with all the powers of a civil court. Clauses (a) to (f) of Section 18 are not evidently an exhaustive enumeration of the powers of the Commission since the use of the expression “and in particular” would indicate that the powers which are enumerated are illustrative in nature. The Commission follows a procedure which is governed by Section 17 for the purpose of making inquiries upon which it has to take steps in conformity with Section 18. 16. The basic question is whether the use of the expression “recommend” in Section 18(a) can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. In our view, to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. An authority or a government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned. Having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement, cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary. Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is 7 available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated. The provisions of the Act which have been made to enforce the constitutional protection of life and liberty by enabling the Commission to grant compensation for violations of human rights would be rendered nugatory. A construction which will produce that result cannot be adopted and must be rejected. 17. The order which has been passed by the Commission has been passed on a careful appreciation of materials which were placed on the record. The deceased was an under trial prisoner who was lodged in the district jail in Muzaffarnagar. The treatment record indicated that he was provided treatment only from 15 May 2012 and he died on 21 May 2012. Though he had been admitted to jail on 9 September 2011, until 15 May 2012, no medical check up was carried out to control or treat his lung disease. He was not sent to a competent medical facility until his condition had deteriorated. Consequently, finding a case of negligence on the part of jail officials in providing medical treatment, the Commission has ordered the grant of compensation. The Commission is entitled to do so where it finds either a violation of human rights or a negligence in the prevention of a violation of human rights. 18. For these reasons, we find no substance in the petition. The writ petition is, accordingly, dismissed.\" 15. The powers of the NHRC under Section 18 of the Act No.10 of 1994 were also considered in UP Power Corporation Ltd. & Anr. Vs. NHRC & Anr.2 wherein a challenge to the orders passed by the NHRC and the UP Human Right Commission was repelled and it was observed as follows:- \"7. The orders impugned have been passed by the National Human Rights Commission and the U.P. Human Rights Commission in exercise of their jurisdiction under section 18 of the Protection of Human Rights Act, 1993. The Protection of Human Rights Act, 1993 has been enacted by Parliament to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions for better protection of human rights and for matters connected therewith or incidental thereto. “Human rights” have been defined under section 2(d) which is as follows: “human rights” means 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.” 8. The definition of word “human Rights” includes rights relating to life. Any violation of rights to life can be a violation of a human rights. Human rights are thus minimal rights which every individual must have against the State or other public authority by virtue of he/she being a human being. Article 21 of the Constitution of India guarantees life and personal liberty. Article 21 prohibits deprivation 2 AIR 2010 All 139 8 of life or personal liberty except due process of law. One of the submissions which has been pressed by learned counsel for the petitioners in both the cases is that there is no violation of human rights hence, National Human Rights Commission and U.P. Human Rights Commission committed error in initiating proceedings under the 1993 Act. x x x x x 13. According to section 18(a) where inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority to make payment of compensation or damages as the Commission may consider necessary. Thus, the commission has jurisdiction to recommend compensation as the Commission may consider necessary. The power of the Commission under section 18 is not inhibited by any other provisions or any State Legislature or subordinate legislation. The power of the Commission under section 18 is in addition to any other provisions covering the subject matter and not in derogation of any other provisions of law. Entitlement of a person whose human rights have been violated in accordance with the relevant statutory provisions governing payment of compensation, does not in any manner create a fetter in the right of Commission to find out the magnitude of violation of human rights and award a compensation. Thus, the mere fact that under the orders issued by the U.P. Power Corporation, amount of Rs. 1,00000/- has been fixed in case of death or injury by the Corporation, does not fetter the rights of the Commission to award compensation over and above the amount of Rs. 1,00000/-. Thus, the order of the Commission awarding compensation more than Rs. 1,00000/- cannot be faulted on the above ground.\" 16. In the present case, the communication dated 24.05.2013 of the NHRC making a request to the State Government that a report in the light of its earlier directions issued on 16.05.2013 be sent to the Commission for its further consideration is sought to be challenged. 17. The aforesaid communication calling for a report from the State Government on the action taken pursuant to a recommendation made by the NHRC is clearly referable to the powers under Section 18(e) of the Act, 1993 wherein it is provided that upon completion of an inquiry held under the Act, the Commission shall send a copy of the inquiry report together with its recommendations to the concerned Government whereupon the said Government would forward its comments on the report, including the action taken or proposed to be taken thereon. The facts of the case are fully covered by the earlier judgment of this Court in State of UP & 2 Ors. Vs. NHRC & 3 Ors. 9 (supra) and we find no reason to take a different view. 18. We may also observe that the object for enactment of the Act, 1993 being for better protection of human rights and enforcing the constitutional guarantee of life and liberty in consonance with the international covenants adopted by the UN General Assembly, this Court would adopt a construction which would advance the object of the Act. For the said reason also the contention sought to be raised on behalf of the petitioners cannot be accepted. 19. In Tinsukhia Electric Supply Com. Ltd. Vs. State of Assam & Ors.3 the Supreme Court held as follows:- “118. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle \"ut res majis valeat quam periat\". .....” 20. A similar view was taken in Commissioner of Income Tax Vs. M/s Hindustan Bulk Carriers4 wherein it was held as follows:- “23. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. [See Broom's Legal Maxims (10th Edition), page 361, Craies on Statutes (7th Edition), page 95 and Maxwell on Statutes (11th Edition), page 221.] 24. A statute is designed to be workable and the interpretation thereof by a Court should be to secure that object unless crucial omission or clear direction makes that end unattainable. (See Whitner v. Commissioner of Inland Revenue (1926) AC 37 p. 52 referred to in Commissioner of Income Tax v. S. Teja Singh [AIR 1959 SC 352], Gursahai Saigal v. Commissioner of Income Tax, Punjab [AIR 1963 SC 1062]. 25. The Courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe (1886) 11 AC 627 p. 634 (PC), Curtis v. Stovin (1839) 22 CBD 513 referred to in S. Teja Singh's case (Supra). 26. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to 3 (1989) 3 SCC 709 4 AIR 2003 SC 3942 10 futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries (1940) 3 All E.R. 549 (CL) referred to in Pve v. Minister for Lands for NSW (1954) 3 All ER 514 (PC). The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India (AIR 1992 SC 1).” 21. Learned counsel for the petitioners has not been able to point out any other illegality in the communication dated 24.05.2013 issued by the NHRC calling for a report from the State Government, and a prayer is made that liberty may be granted to the petitioners to submit the report to the NHRC. 22. The writ petition is devoid of merits and is, accordingly, dismissed leaving it open to the petitioners to take appropriate steps in the matter including submission of the report to the NHRC as per the provisions contained under the Act, 1993. Order Date :- 01.02.2019 Shahroz (Dr. Y.K. Srivastava,J.) (Abhinava Upadhya,J.) "