National Human Rights Commission: The role revisited

In a recently delivered decision, the Supreme Court in Remdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das [later reported as AIR 2011 SC 615] revisited the role and jurisdiction of the National Human Rights Commission  (NHRC) in the area of human rights. The Court was called upon to examine the legality of actions of NHRC by recommending to the Governor to commute the death sentence of a convict to life imprisonment despite the Supreme Court having turned down his review petition. 

Having analyzed the provisions of law and the role played by NHRC, the Supreme Court held that the ambit of human rights being wide the NHRC could validly make recommendations to such end. In this context the Supreme Court examined the role of NHRC in the following terms;

44. The NHRC was constituted under Section 3 of the 1993 Act for better protection of human rights. The term ‘human rights’ as defined in Section 2(d) of the 1993 Act, reads as follows:

“2. (d) "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.”

45. The functions of NHRC have been set out in Section 12 of the 1993 Act. Section 12 reads 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 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 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 nongovernmental organization and institutions working in the field of human rights;

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

46. The NHRC has been constituted to inquire into cases of violation of and for protection and promotion of human rights. This power is an extensive one, which should not be narrowly viewed.

47. It must be jurisprudentially accepted that human right is a broad concept and cannot be straitjacketed within narrow confines. Any attempt to do so would truncate its all-embracing scope and reach, and denude it of its vigour and vitality. That is why, in seeking to define human rights, the Legislature has used such a wide expression in section 2(d) of the Act. It is also significant to note that while defining the powers and functions of NHRC under section 12 of the Act, the said broad vision has been envisioned in the residuary clause in Section 12(j).

48. Therefore, it is imperative that while interpreting the powers and jurisdiction of NHRC, the Court construes section 2(d) of the 1993 Act along with its long title and also the Statement of Objects and Reasons of the said Act. The relevant portion of the statement of objects and reasons are excerpted below: 

“2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures, and system of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation.”

49. In his Tagore Law Lecture (The Dialectics and Dynamics of Human Rights in India), Justice V.R. Krishna Iyer describes the width and sweep of human rights in his matchless words and which are worth quoting:

“Human rights are writ on a large canvas, as large as the sky. The law makers, lawyers and particularly, the judges, must make the printed text vibrant with human values, not be scared of consequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. Remember, we are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future.”

50. We share the same view.

51. What was said by Alexander Hamilton, the great constitutional expert and political philosopher, way back in 1775, is poignant still today for having a clear perception of what human rights are. The words of Hamilton still resonate with a strange relevance and immediacy, and are quoted below:

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power.”

52. Keeping those broad principles in our mind if we look at Section 12(j) of the 1993 Act, we mind that it confers on NHRC “such other functions as it may consider necessary for the promotion of human rights.” It is not necessary that each and every case relating to the violation of human rights will fit squarely within the four corners of section 12 of the 1993 Act, for invoking the jurisdiction of the NHRC. One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed. That is why the residuary clause in sub-section (j) has been so widely worded to take care of situations not covered by subsections (a) to (i) of Section 12 of the 1993 Act. The jurisdiction of NHRC thus stands enlarged by section 12(j) of the 1993 Act, to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he is entitled, whether by a private party, a public institution, the government or even the Courts of law. We are of the opinion that if a person is entitled to benefit under a particular law, and benefits under that law have been denied to him, it will amount to a violation of his human rights.

53. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. Constitution and Legislations of civilized country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to rule of Law put into force mechanisms for their enforcement and protection. Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as UDHR) adopted by the General Assembly of the United Nations on 10th December 1948 recognizes and requires the observance of certain universal rights, articulated therein, to be human rights, and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term ‘human rights’ itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein.

54. Possibly considering the wide sweep of such basic rights, the definition of ‘human rights’ in the 1993 Act has been designedly kept very broad to encompass within it all 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.

55. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it.

56. The contrary finding in the judgment under review about the absence of jurisdiction of NHRC to make some recommendations to the Governor is thus vitiated by errors apparent on the face of the record. Of course NHRC cannot intervene in proceeding pending in Court without its approval [Section 12(6)] as it is assumed that Court will remedy any case of violation of human rights. 

57. The assumption in the judgment under review that there can be no violation of a person’s human right by a judgment of this Court is possibly not correct. This Court in exercise of its appellate jurisdiction has to deal with many judgments of High Courts and Tribunals in which the High Courts or the Tribunals, on an erroneous perception of facts and law, have rendered decisions in breach of human rights of the parties and this Court corrects such errors in those judgments.

58. The instances of this Court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.

59. We can remind ourselves of the majority decision of the Constitution Bench of this court in Additional District Magistrate Jabalpur v. Shivakant Shukla reported in (1976) 2 SCC 521.

60. The majority opinion was that in view of the Presidential order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention{ Maintenance of Internal Security Act of 1971}, on the ground that the order is illegal or malafide or not in compliance with the Act.(See paras 78 and 136 of the report)

61. The lone dissenting voice of Justice Khanna interpreted the legal position differently by inter alia holding: 

“(8) Article 226 under which the High Courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question.”(Point 8 at page 777 of the report)

62. There is no doubt that the majority judgment of this court in the ADM Jabalpur case (supra) violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be ‘confined to the dustbin of history.’ The learned Chief Justice equated Justice Khanna’s dissent with the celebrated dissent of Lord Atkins in Liversidge v. Sir John Anderson reported in (1942) AC 206. 

63. In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency.

64. But we hasten to add that NHRC cannot function as a parallel seat of justice to rectify or correct or comment upon orders passed by this Court or any other Courts of competent jurisdiction. For correcting an order in a judicial proceeding, the aggrieved party has to avail of the well established gamut of the corrective machinery of appeal, revision, review, curative petition and so on. 

65. In fact in this case the NHRC did not send any recommendation as long as the first review proceedings were pending in this court. The NHRC was keeping a track of the proceeding in the Court. From its order dated 16.10.09, it is revealed that NHRC was aware that a review petition was filed against the judgment of this Court in Criminal Appeal No. 4/2000, in addition to a mercy petition filed before the Governor of Assam. The NHRC closely followed the proceedings of the review petition.

66. The NHRC made its recommendations on 21.5.2001 only after the judgment in first review (No.1105/2000) was passed on 10.5.2001 by this Court.

67. About NHRC, this Court in Paramjit Kaur v. State of Punjab and Ors. – (1999) 2 SCC 131 held: 

“10. The Commission headed by a former Chief Justice of India is a unique expert body in itself. The Fundamental Rights, contained in Part III of the Constitution of India, represent the basic human rights possessed by every human being in this world inhabited by people of different continents, countries, castes, colours and religions. The country, the colour and the religion may have divided them into different groups but as human beings, they are all one and possess the same rights.”

11. The Chairman of the Commission, in his capacity as a Judge of the High Court and then as a Judge of this Court and also as the Chief Justice of India, and so also two other members who have held high judicial offices as Chief Justices of the High Courts, have throughout their tenure, considered, expounded and enforced the Fundamental Rights and are, in their own way, experts in the field. The Commission, therefore, is truly an expert body to which a reference has been made by this Court in the instant case.”

68. After the aforesaid observations this court decided that when in exercise of its power under Article 32, this Court gives any directions to NHRC, then like all other authorities in this country, NHRC is bound by such directions. In such situations, NHRC acts ‘sui-generis’. The statutory bar of limitation under Section 36(2) of the 1993 Act will not stand in the way (paras 12 and 15, pages 137-138 of the report). 

69. Therefore, NHRC, a statutory body, in a given situation, may have to act under the order or direction given by this Court in exercise of its constitutional power of judicial review.

Have a look at the decision.