Madras High Court Judgment is a Harbinger of Hope for Human Rights

The Madras High Court’s judgment delivered earlier this year on February 5 is a landmark decision for giving teeth to State Human Rights Commissions and paving the way for them being potentially empowered to enforce their own decisions, explains N. KAVITHA RAMESHWAR.


OF more worth is one sincere action than all the decorated promises. That in effect is the principle that propelled the full bench of the Madras High Court to deliver its 516-page judgment dated February 5, 2021, on the enforceability of the recommendations of a State Human Rights Commission (SHRC) under Section 18 of the Protection of Human Rights Act, 1993 (the Act).

This judgment, mammoth in form and monumental in purpose, is of critical importance to the human rights jurisprudence in our country as it is the singular authoritative pronouncement in India on the specific question of whether the decision made by the SHRC under section 18 of the Act is only a recommendation or an adjudicated order capable of immediate enforcement and binding on the state government. Though there have been various rulings on the limited aspects of the Act by several High Courts over the years, there is no judgment either of the Supreme Court or of any of the High Courts which has dealt exclusively with this very question that forms the fulcrum of the reference answered by the Madras High Court in the instant case.

Also read: Recommendations of state human rights commission binding on govt, rules full bench of Madras HC; recommends Parliament empower commissions to directly execute recommendations

Panoramic view 

Before pronouncing its findings, the High Court laid out all the germane material that aided its decision-making, with the judgment making its way through a labyrinth of judgments of the Supreme Court and various High Courts, a huge corpus of human rights literature, the prevailing law in other countries, and the laws of interpretation, in determining the concrete legal position.

Most importantly, the Court has drawn from international conventions like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The Act has expressly drawn its conception of human rights from the latter two.

Protection of Human Rights Act – a rickety structure

The judgment, while being progressive in approach and purposive in interpretation, has, in order to be faithful to the solemn objective of upholding the sanctity of human rights and inviolability of human dignity, nevertheless exposed that the existing legislation is a loosely held framework that can be compared to a rickety structure standing feebly on a frail foundation.

It lays down with certitude that the recommendation or decision made by an SHRC under section 18 of the Act is binding on the government, and that it is imperative for the government to act on the recommendation by filing a report on the action taken pursuant to the recommendation. However, the court makes an important distinction between the word “recommendations” employed in Section 12 of the Act, which deals with the advisory functions of the Commission, and that under section 18 of the Act, which deals with adjudicatory functions of the Commission.

The use of the same word ‘recommendation’ in both provisions of the Act, though not confounding to the discerning eye, when viewed in the right legislative perspective, has proved to be a chink in the armour of the Commission. It has time and again been abused by government authorities to appropriate to themselves the final decision-making power while treating the Commission’s decision under section 18 as a mere recommendatory directive rather than as an authoritative and binding one.

In this context, it is relevant to note that the High Court has rightly rubbished the claim that the phrase “proposed to be taken” in section 18 could be interpreted to mean even a rejection of the recommendation of the Commission. 

The Act, hitherto in a powerless position, has now been lent with judicial crutches and empowered by the judgment to ensure that justice is truly done in terms of the objects sought to be achieved by it.

Also read: Democratising human rights commissions through better representation across gender and non-judicial axes is a much-required amendment

Culling out callow comparisons

The foremost clarification rendered decisively by the Madras High Court was that, viewed from the angle of objects and reasons as well as from the perspective of statutory provisions, there was absolutely no logical scope for comparison between the provisions of the Protection of Human Rights Act, 1993 and the Commissions of Inquiry Act, 1952.

The Court has held in no uncertain terms that while a Commission of Inquiry under the latter owes its very existence to the terms notified by a government and continues to survive only along the lines of the will and pleasure of the government, the Commission under the Act owes its origin and founding to a statute, and has been conferred with adjudicatory powers akin to a judicial body. It is bestowed with functions of great importance, primarily the vindication of human rights along with powers to conduct inquiry, and to issue concrete recommendations on measures to be taken, including on issues of compensation and interim relief. This is evident in section 18 of the Act.

Secondly, the Court has clarified that though there is a difference between the evidentiary value of the statements made before the civil and criminal courts, and those made before quasi-judicial and adjudicatory authorities like the Commissions, the sanctity of the evidence of the statements made before the latter cannot be whittled down to such an extent so as to emasculate the very process of embarking upon an inquiry and thereafter passing a considered decision (recommendation) as contemplated under the Act. The Court has rightly held that any interpretation that would dilute the powers of the Commission in a way as to take it farther from its avowed objectives, would denude the Act of its very purpose of protection of human rights.

Also read: Parliament watch: Centre seeks to change composition of NHRC and SHRCs through statutory amendment

Judicial review and restraint – a commendable comity

The judgment has effectively laid the blueprint for a complete overhaul of our human rights jurisprudence, specifically stating that the Act needs to be amended in order to make it a self-contained and self-sufficient code so that the Commission may be afforded enough powers to implement and execute its own orders like a judicial authority.

In the same breath, the Court has expressly cautioned that it does not wish to transplant provisions into the Act where there are none. Viewed from this angle, the judgment displays exemplary judicial restraint and dishes out the best possible interpretation within the four corners of the existing legislation.

What a better Protection of Human Rights Act would look like

However the spirit of the judgment, if taken forward and given shape to by way of new legislation, must be such as to empower the Commission and elevate its status to that of a judicial body that does not need to approach the constitutional courts for implementation of its own orders, as is being done presently.

The present process is an affront to its own legal status, and continuing with it would be a travesty of justice, relegating the fulfilment of human rights to step-motherly treatment that is anathema in a democracy that holds the ideals of justice and equality in the highest esteem.

A new legislation must closely consider the directives and interpretative judicial wisdom with respect to each provision. This could be done by making specific provisions for enforceability of the decisions of the Commission by granting it powers of execution of its orders, the conduct of enquiries and recording of evidence; the remedy to be made available to the government to approach the constitutional courts if it seeks review of a particular decision of the Commission; the remedy available to the delinquent officers found guilty of the violation of human rights by the Commission, as well as the other provisions on the powers and functions of the Commission.

Also read: NHRC Appointments: Hindutva Deep State Expands Armoury

This judgment clearly acts as a momentous harbinger of hope while reminding one of the words of American civil rights activist Martin Luther King Jr. – “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny whatever affects one directly affects all indirectly.”

A portending extension of this can also be seen in the Preamble to the Universal Declaration of Human Rights which says that human rights should be protected by the rule of law, if man is not to be compelled to have recourse to rebellion against tyranny and oppression.

(N. Kavitha Rameshwar is an Advocate at the Madras High Court. The views expressed are personal.)