With an escalation is human rights violations in all spheres of the society, more recently the alleged custodial torture and death of two shopkeepers, Jayaraj and Bennix in Tamil Nadu, it is exigent for the common man to know the law, particularly human rights.
The said infamous incident has created a furor not only in Thoothukudi but also amidst several netizens on social media. It is without any doubt that the concerned issue would fall under gross and flagrant violation of human rights, and political leaders have also sought for an intervention by the Human Rights Commission. Therefore, an introspection of the human rights law in India and the effectiveness of the Human Rights Commissions is imperative.
What good is an order if it cannot be enforced?
A decision of any adjudicatory body ought to be binding, in absence of which, the remedy shall only be a mirage. Likewise, only if the decisions of the Human Rights Commissions have a binding or authoritative value, they can, in reality, act as the guardians of inalienable human rights.
If the decisions of the Commissions do not possess the ability to be âenforcedâ, it becomes directory in nature and takes the shape of a mere recommendation. It will render an adjudicatory institution to be âtoothlessâ.
As far as the aspect of âenforceabilityâ of the orders of the Commission is concerned, it is very well in context to quote the passionate plea raised by Justice YK Sabharwal in a function organized by Madhya Pradesh Human Rights Commission at Bhopal on September 6, 2006. He poignantly spoke of the futility in litigations between the Commission and the state.
"Before I conclude, I must say that no purpose is served by the Commission engaging the other agencies of the State in adversarial litigation to secure enforcement of its recommendations. In this context, I would like to impress upon the State executive that by augmenting the human rights protection machinery in the State, the Government is, in fact, acquiring a partner in good governance,â he had said.
âThe law casts an obligation on each State Government to sustain the human rights apparatus by acting in its aid rather than at cross-purposes. I hope and trust that the State Government would do all it can to reinforce this partnership for the common good of the people of the State and would abide by the provisions of protection of the Human Rights Act in letter and spirit,â he had added.
The question of whether the decisions of the Commissions can be enforced âproprio vigoreâ (of or by its own force independently) has not been answered uniformly by the courts. The aspect of âenforceabilityâ of the decisions of the State or National Human Rights Commission has suffered a great deal of judicial divergence, only in the Madras High Court alone.
The judicial divergences
The Madras High Court in Rajesh Das, IPS, vs Tamil Nadu State Human Rights Commission (order dated August 27, 2020), while considering the powers of the State Human Rights Commission, after drawing parallels with a Commission set up under the Commission of Inquiry Act, 1952, held that an outcome arrived by the Commission is only a ârecommendationâ and it is neither an âorder nor an adjudicationâ. The High Court ultimately held that such a recommendation made by the State Human Rights Commission is not binding on the parties to the proceeding, including the government.
Subsequently, in T Vijayakumar vs Madhavi (order dated September 29, 2010), another single judge of the court took a slightly contradictory view and held that âthe State Government is bound to place the report of the Human Rights Commission before the State legislature along with the memorandum of action taken or proposed to be taken on the recommendation of the Commission.â The court further held that in case of a non-acceptance of its recommendation, it has to give reasonsâ and there is such other power with the State Government to repudiate the report of the Commission.
A contrary view was taken by the high court than that of its coordinate bench and the legal issue was not referred to a larger bench. Thereafter, one other similar case â Abdul Sathar v Principal Secretary and Others (order dated 2006), the single judge directed the Registry to place the papers before the then Chief Justice of the Madras High Court to decide which law (Rajesh Das, IPS vs Tamil Nadu State Human Rights Commission, or Abdul Sathar v Principal Secretary and Others) was the âgood lawâ as per the law and the wisdom of courts.
The division bench, led by the then Chief Justice, in a January 27, 2016 order upheld the decision in Rajesh Das, IPS vs Tamil Nadu State Human Rights Commission, which was that recommendations made by the State Human Rights Commissions were not binding.
Nevertheless, it was not the end of the story, as another division bench, hearing a batch of writ petitions concerning the identical question of law, observed that there was âan apparent conflict of views by different orders of the Division Benches of the Courtâ and referred the matter to the Chief Justice of the Court, asking that a full Bench of three judges be set up as required by the comity of discipline, probity and propriety.
The High Court as a Human Rights Court
The High Courts, particularly the Madras High Court, has consistently adopted a liberal approach while hearing writ petitions seeking compensation for custodial death and has consciously refrained from relegating the victim to remedies available in civil law limits. In R.Parvathi, v. State of Tamil Nadu, where the wife of the deceased sought compensation for her husbandâs death in custody, the court held that the government cannot afford to be mute spectators.
In P Amaravathy vs The Government of Tamil, reported in 1996, where the petitioner, wife of a man who died in police custody sought for a compensation of a sum of Rs 20 lakhs, the Court ordered compensation of Rs 1 lakh as interim compensation, to be adjusted at a later stage when regular compensation is claimed.
In Henri Tiphagne vs. State of Tamil Nadu, 2008, the High Court directed the State Government to pay compensation of Rs.3 lakhs for the death of a woman in police custody.
In Rajammal v. State of Tamil Nadu & Others, reported in 2010, the Division Bench of the Madras High Court on appeal by the State increased the compensation from Rs 3 lakhs to 5 lakhs, to be paid to the wife of a man who was found dead after being taken to police station.
Thus, in a catena of cases, the Madras High Court granted compensation while hearing a writ filed under Article 226 of the Constitution of India. By doing so, the High Court has secured âhuman rightsâ in as much as assuring the citizens that they live under a legal system which aims to protect their interests and preserve their rights. It is such a role which is generally accepted by a âCommon Manâ. When one can seek justice from the High Court, why a Commission at all, one may wonder.
Mandatory or recommendatory?
Whether the Commissionâs decisions are binding or recommendatory only, that question remains to be answered.
The legal issue of the enforceability of the decisions rendered by the Human Rights Commission is still pending before the full bench. The outcome of the full bench is highly crucial as the law which will be laid down therein shall decide if the Human Rights Commissions will be a mighty sword with a pointy edge or a toothless saw with a serrated edge in the eyes of a âcommon manâ.
Views expressed here are personal.
Pawan Jhabakh and Salai Varun are both advocates practising at Madras High Court.