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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, 685/2020, 4456/2020, 4980/2020, 5139/2020, 5143 to 5147/2020 and W.P.(MD) Nos.15492/2012,25881/2019 and 27187/2019 and Connected Writ Misc.Petitions W.P.No.41791 of 2006:
Abdul Sathar .... Petitioner Versus
1.The Principal Secretary to Government, Home Department, Fort St. George, https://www.mhcC.tnh.geovn.inn/jaudii-s6/ 00 009
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 for UoI & NHRC Ms.Narmatha Sampath, AAG Mr.B.Vijay, Amicus Curie Mr.Jayaprakash Narayan, GP Mr.T.M.Pappaiah, Spl.GP Mr.Suresh GA Mr.M.Nagoormeeran for R3 in WP 41791 of 2006 Dr.G.Kirusnamurthy Mr.A.K.M.Samsunihar for R4 in WP 41791 of 2006 Prefatory Note M.SUNDAR, J.
It is often said that interpretation is a journey of discovery, which is not akin to a regular journey of discussion and dispositive reasoning which predominantly turns on 'construction'. Interpretation (unlike construction) is more in the nature of determining the idea of legal meaning of a Statute. Interpretation is a jurisprudential journey as it is the process of sifting a statute and/or its provisions to seek the intention of the Legislature. In this order, we had embarked upon such a jurisprudential journey, which under the normal circumstances should have reached its destination before the dawn of December 2020, but that was not to be owing to the Corona virus pandemic and consequent lock down, which is now widely and commonly referred to as 'Covid-19 situation'; Covid-19 was something which we did not portend or presage when this journey commenced on 17.02.2020 and thereafter we had no means of prophesying that it would impact one of us and personal staff of another of us.
2. We are much conscious over the joint effort to raise the efficiency and therefore, we feel it appropriate to state as to why there is a little delay in delivering this judgment, though it is not imperative for us to narrate the reasons, we believe that keeping a clear conscience is always better. We can speak only through our order with none to articulate these facts if this order is assailed in the Apex Court. Owing to conflict of judgments with regard to human rights violations, these batch of cases were referred to us by constitution of a Special Bench by the then Hon'ble Chief Justice, for a firm judicial pronouncement on the said aspect. These matters were heard by us on several listings / days in virtual Courts (Web hearing on a video conferencing platform) and finally judgment in this case was reserved on
29.09.2020.
3. The Hon'ble Supreme Court in the case of Balaji Baliram Mupade and another vs. The State of Maharashtra and Others [Civil Appeal No.3564 of 2020 (SLP(C) No.11626 of 2020), decided on 29.10.2020, referring to its earlier decision in Anil Rai vs. State of Bihar reported in
2001 (7) SCC 318, was pleased to hold as under:
"3.... It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments."
S.VAIDYANATHAN, J.
4. After reserving judgment in these batch of cases, one of us (Justice S.Vaidyanathan) was deputed to the Madurai Bench of Madras High Court for three months and thereafter, one of our Personal Assistants was affected with Covid-19 and there were sudden deaths of two parents of two Personal Staff, all of which made us postpone our dictation for a short while and continue thereafter. Thereafter, all of a sudden, one of us (Justice S.Vaidyanathan) was hospitalized for few days and soon after recovery, https://www.mhca.tnn.gootvh.ine/jurd iso/ ne of us (V.Parthiban, J.) tested Covid-19 positive and was hospitalized for a considerable period. Owing to such circumstances beyond our control, we have been forced to defer the continuation of our dictation consecutively, as each one of us has played a role in shaping the judgment, so as to put in all the finesse and felicity at our command in articulation. As Constitutional functionaries, we owe the responsibility of delivery of orders at the earliest, but there may be certain circumstances, which may be beyond the control of humans, like the present situation.
5. We have thought it appropriate and pertinent to write this prefatory note in the light of matters now before different Hon'ble Division Benches which are awaiting this verdict. Suffice to say that pronouncing of this order which should have happened before the dawn of December 2020, is happening now owing to circumstances narrated herein which we could neither foretell nor foreshadow.
ORDER
V.PARTHIBAN, J.
6. The origin that gave rise to the reference before this Full Bench is to be traced to divergent views expressed by two Hon'ble Judges of this Court, in their respective decisions as under.
7. In W.P.Nos.21604 to 21607 of 2000, a learned Judge of this Court, Shri Justice S.Nagamuthu, in the matter of Rajesh Das versus Tamil Nadu State Human Rights Commission and others reported in 2010 (5) CTC 589 has passed a detailed order dated 27.08.2010 answering the question placed before him for consideration as to-
'Whether the Human Rights Commissions constituted under the Protection of Human Rights Act, 1993 (hereinafter referred to 'H.R.Act') have power of adjudication in the sense of passing an order which can be enforced propri vigore ?'
8. After referring to various provisions of the 'Protection of Human Rights Act, 1993' (hereinafter, referred to 'H.R.Act') and comparing the same to the similar provisions of the Commission of Inquiry Act, 1952 (hereinafter referred to 'C.I.Act'), concluded that the recommendations made by the Human Rights Commissions are recommendatory in nature. The learned Judge has come to the conclusion on the premise that from the Statement of Objects and Reasons of H.R.Act, it was noticed that the Commission will be a fact finding body with powers to conduct inquiry into the complaints of violation of human rights. Based on the said premise, the learned Judge has drawn parallel to several provisions of H.R.Act and C.I.Act and found that many of the provisions of both the Acts are pari https://www.mhcm.tn.agotve.irni/jaudis /to each other and therefore, the learned Judge founded his conclusion that the provisions of H.R.Act being 'pari materia' to the provisions of C.I.Act, the recommendations of the Human Rights Commission under Section 18 of H.R.Act cannot be enforced. The learned Judge in his judgment, compared Section 13 of H.R.Act which deals with the powers relating to the inquiries, namely, the Commission shall have all the powers of a Civil Court summoning and enforcing the attendance of witnesses and examining them on oath, discovery and production of any document, receiving evidence on affidavits, and requisitioning any public record or copy thereof from any Court of office, etc. is 'pari materia' to Section 4 of C.I.Act. wherein similar powers are vested in the Commission under C.I. Act as well. Likewise, the learned Judge has compared Section 14 of H.R. Act which deals with investigation and utilization of services of certain officers, with that of Section 5A of the C.I. Act, which is 'pari materia'. Further, Section 15 of H.R. Act which states that no statement made by a person during the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceeding except a prosecution for giving false evidence by such statement. In fact, this provision is a replica of Section 6 of the C.I.Act, though not specifically referred to by the learned Judge. Section 16 of H.R.Act which states that the 'persons likely to be prejudicially affected to be heard'. It also states that he should be allowed to cross examine the witnesses who speak adverse to him and also produce evidence in his defence. So is section 8-B of the C.I. Act being pari materia to Section 16 of H.R.Act, provides such right to the persons likely to be affected. The learned Judge has also compared Section 18 (a)(i) of H.R.Act which states that the Commission shall make a recommendation to the concerned Government or authority to make payment of compensation or damages to the complainant or to the victim or to the members of his family with that of Section 3 of the C.I.Act which also state that the Commission shall submit its report. The learned Judge compared H.R.Commission to the Commission functioning under similar enactments like, National Commission for Minorities Act, 1992, National Commission for Women Act, 1990, National Commission for Backward Classes, 1993
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