Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : - The Expression "recommend" Would Dilute The Efficacy Of The NHRC And Defeat The Statutory Object...State Govt. Is Duty Bound To Comply With The Order.
JUDGEMENT TITLE : State Of U.P. And 2 Others Vs. N.H.R.C. And 3 Others On 04/08/2016 By Allahabad High Court
CASE NO : WRIT - C NO. 15570 OF 2016
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- WRIT - C No. - 15570 Of 2016

Petitioner :- State Of U.P. And 2 Others
Respondent :- N.H.R.C. And 3 Others
Counsel For Petitioner :- Piyush Shukla

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ)

An Order Has Been Passed By The National Human Rights Commission1 On 4 April 2015 In The Course Of An Enquiry Under Section 17 Of The Protection Of Human Rights Act, 19932.
A Notice To Show Cause Was Issued To The Chief Secretary Of The State Government On 2 September 2014. In Response To The Notice, A Reply Was Submitted By The Superintendent Of The District Jail, Muzaffarnagar On 10 October 2014. The Commission Issued An Order On 4 April 2015 By Which It Came To The Conclusion That A Case Of Violation Of Human Rights Was Made Out In The Death Of An Under-trial Prisoner, Omendra (son Of Brahm Dutt) Who Died On 21 May 2012 While In The Custody Of The District Jail, Muzaffarnagar. The Prisoner Was Lodged In The District Jail On 9 September 2011 In Criminal Case No. 905 Of 2011 Under Sections 406, 420 And 506 Of The Penal Code, Police Station Kotwali Nagar. He Was Under Treatment Of The Jail Hospital From 15 May 2012. On 21 May 2012, His Condition Became Serious And He Was Referred To The District Hospital Where He Was Declared "brought Dead".
During The Course Of The Proceedings Before The Commission, The Treatment Record Of The Deceased Was Examined By Dr Adarsh Kumar, Additional Professor In The Department Of Forensic Medicine, AIIMS, New Delhi. After Examining The Postmortem Report, Medical Treatment Papers, Health Report And The Report Of The Magisterial Enquiry Together With All Other Papers, A Report Was Submitted.
The Opinion Of Dr Adarsh Kumar Was In The Following Terms:

"The UTP Was Admitted Into Jail On 09.09.2011 In An Apparently Healthy Condition. On 15.05.2012 He Complained Of Difficulty In Respiration For Which He Was Diagnosed As A Case Of Asthma And Was Provided Requisite Treatment. However, On Deterioration Of His Condition He Was Referred To District Hospital, Muzaffarnagar, On 21.05.2012 Where He Was Declared Dead On The Same Day. The Cause Of Death Has Been Given As 'asphyxia Due To Chronic Lung Disease'.
Considering The Chronology Of Events And Various Findings, I Am Of The Considered Opinion That The UTP Died As A Result Of 'acute Exacerbation Of Bronchial Asthma'. This Disease Is Chronic In Nature And Needs Regular Treatment. Perusal Of Record Shows That No Treatment Was Provided During His Stay Into Jail.
Prima Facie, It Appears As A Case Of Medical Negligence On Part Of Jail Officials In Not Providing Adequate Medical Treatment During His Stay Into Jail."

The Commission, After Taking Note Of The Medical Opinion, Observed Thus:

"The Following Points May Kindly Be Noted In This Regard :
(i) The Deceased Was About 40 Years Of Age And Was Having Normal Health At The Time Of Admission Into The Jail In The Year 2011 (September).
(ii) As Per PMR, Pus Pockets Were Present In The Lungs. The Cause Of Death Was Opined As Death "due To Asphyxia As A Result Of Chronic Lung Disease".
(iii) The Treatment Record Indicates That The Deceased Was Provided Treatment Only From 15.05.2012 Onwards And The Deceased Died On 21.05.2012. The Deceased Was Admitted In The Jail On 09.09.2011 And Since Then Till 15.06.2012, No Medical Check-up Was Done To Detect His Disease. The Deceased Was Under Treatment With Jail Hospital And Died Due To Asthmatic Attack Which Is A Common Ailment. The Deceased Was Not Sent To Higher Hospital Till His Condition Deteriorated.
(iv) As Per Medical Forensic Expert On The Panel Of NHRC, No Treatment Was Provided To The Deceased During His Stay In Jail. Prima Facie, It Appears As A Case Of Medical Negligence On Part Of Jail Officials In Not Providing Adequate Medical Treatment During His Stay Into Jail". The Commission Has Perused And Considered The Report. As A Case Of Violation Of Human Rights Is Made Out, The Next Of Kin Of The Deceased Under-trial Prisoner Omendra Deserve To Be Compensated. Issue Notice U/S 18 Of The Protection Of Human Rights Act, 1993, To The Government Of Uttar Pradesh, Through Its Chief Secretary, To Show Cause As To Why The Commission Should Not Recommend Monetary Relief For The Next Of Kin Of The Deceased Prisoner Omendra.
Pursuant To That, A Reply Dated 10.10.2014 Has Been Submitted By The Superintendent, District Jail, Muzaffarnagar In Which He Has Stated That The Senior Consultant Did Not Make Any Recommendations For Admitting The Deceased In The District Hospital. This Reply Is Not From The Chief Secretary, Govt. Of Uttar Pradesh. The Reply Of Superintendent, District Jail Has Not Even Been Endorsed By The Concerned Authority And Hence It Could Not Be Treated As A Proper Reply. The Matter Has Been Discussed In Detail In The Report Of Dr. Aakash Kumar, Addl. Professor, Deptt. Of Forensic Medicines, AIIMS, New Delhi (as Quoted Above).
In These Circumstances, A Clear Case Of Violation Of Human Rights Is Made Out. Keeping In View The Facts And Circumstances Of The Case, The Commission Recommends To The Govt. Of Uttar Pradesh Through Its Chief Secretary To Pay A Compensation Of Rs.200000/- (Rupees Two Lakhs Only) To The Next-of-kin Of The Deceased Prisoner Omendra.
The Chief Secretary, Govt. Of Uttar Pradesh, Is Directed To Submit Compliance Report Alongwith Proof Of Payment Within 08 Weeks."

On 11 April 2015, The Assistant Registrar (Law) Of The Commission Addressed A Communication To The State Government Through The Chief Secretary With A Direction To Submit A Compliance Report Along With A Proof Of Payment Of The Compensation Within Eight Weeks.
The Challenge In The Writ Petition Is To The Order Dated 28 April 2015, Communicating The Decision To Award Compensation.
The Challenge Before The Court Which Is Addressed During The Course Of Submissions Is That The Power Of The Commission Under Section 18 (a) (i) Of The Act Is To "recommend" To The Concerned Government Or Authority To Make Payment Of Compensation Or Damages To The Complainant Or To The Victim Or The Members Of His Family. Hence, It Has Been Submitted That The Power Of The Commission Being Recommendatory In Nature, The Directive To Furnish Proof Of Compliance Is Contrary To Law And Is Liable To Be Set Aside. We Now Proceed To Consider The Submission.
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.
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.
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 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."

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.
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."

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 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.
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.
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 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.
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.
For These Reasons, We Find No Substance In The Petition. The Writ Petition Is, Accordingly, Dismissed.
There Shall Be No Order As To Costs

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