Litigants as Victims under Rule of Judgment
By P. Chandrasekhar, Advocate, Ernakulam
09/01/2015
Litigants as Victims under Rule of Judgment
(By P. Chandrasekhar, Advocate, Ernakulam)
This paper examines the impact of “differend”1 in a case that involved interpretation of Rule 14(e) of Kerala State and Subordinate Service Rules (K.S.&S.S.R.) which embodies principle of affirmative action in public employment. A young lawyer (the petitioner) applied for the post of District Judge in the Kerala Higher Judicial Service. Kerala Higher Judicial Service Rules stipulate that in the matter of selection to the post of District Judges Rules 14 to 17 of K.S.&S.S.R., the rules of reservation for backward classes, shall apply. The notification issued by the High Court of Kerala provides that selection of District Judges shall be by written test and viva voce. The written test consisted of three papers each paper carrying a maximum of 200 marks. The notification also stipulated that General candidates and candidates belonging to Other Backward Classes securing not less than 50% marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 % of marks in each paper of the written examination alone were eligible for being called for viva-voce. The maximum marks for viva-voce was 50. Written test was conducted by the High Court in which the Petitioner also participated. After evaluation of answer papers of the candidates who wrote the written test it was found that those who obtained cut off marks stipulated in the notification were less than the number of candidates required. The High Court therefore decided to give 20 marks to each candidate by way of moderation. After the moderation of marks several candidates including the petitioner became eligible to be included in the short list for viva voce. The candidates were interviewed and a rank list was prepared in accordance with the marks of the candidates in the written test and viva voce. Certain general merit candidates who had the requisite cut off marks in the written test without moderation and who were left out of selection challenged the moderation of marks as illegal. By that time petitioner had already been appointed District Judge and he had joined duty giving up his lucrative practice in a moffussil court. When the matter came up before Division Bench the High Court defended its action based on Rule 14(e) of K.S.&S.S.R. which reads as follows:
“A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published.
Note: - ‘Suitable Candidates’ for the purpose of this rule shall mean candidates with notified minimum qualifications and marks in selection procedure lowered to the extent necessary.
The Division Bench held that moderation of marks was illegal. In the Rules there was no provision for moderation of marks. The Division Bench said that Rule 14 (e) could be applied only at the threshold and not thereafter, lest it should defeat the purpose of Rule 15 of K.S.&S.S.R.which provided that if a suitable candidate was not available for selection from any particular community or group of communities specified in the Annexure to the K.S.&S.S.R. such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. The Division Bench also held that the cut off marks mentioned in the notification could not have been relaxed or lowered after the selection procedure started2. As a consequence, all candidates including the petitioner who had become District Judges and were continuing in service were sent out of service. Prior to termination of his service the petitioner put in a petition that he be allowed to continue in service since there was no other candidate to be appointed from the back ward community to which he belonged and no other candidate other than a person belonging to the community to which petitioner belonged could be appointed in the vacancy which would be arising on termination of his service. Subsequent to the termination of his service he submitted another petition requesting the High Court to take him back in service invoking Rule 14(e) of the K.S.&S.S.R. as there was no candidate to fill up the vacancy in the post held by him. Though the High Court made attempt to fill up the post of District Judge earmarked for the community to which the petitioner belonged subsequently the post could not be filled for want of suitable candidate. The vacancy in which the petitioner had been appointed continued to remain vacant. The Petitioner therefore filed a writ petition to apply rule of reservation stipulated in Rule 14(e) of K.S.&S.S.R. to the selection and appointment of District Judges in the Kerala Higher Judicial Service and to invoke the said Rule in the matter of appointment of back ward class candidates to the post of District Judge.
When the Writ Petition of the petitioner came up for hearing it was contented on behalf of the High Court that the petitioner being party to the earlier writ petition before the Division Bench and the Division Bench having held that Rule 14(e) could not be applied in the case, the writ petition was barred not only by rule of precedent but also by res judicata. The Court rejected the contentions and agreed that the writ petition was neither barred by res judicata nor did the earlier division bench decision constitute a binding precedent in the case. The Court however dismissed the writ petition on the ground of delay and laches on the part of the petitioner in not challenging the action of the High Court earlier3. The Court also held that Rule 14(e) is an enabling provision and not a mandatory one. The petitioner took the matter before the Division Bench and argued that there was no delay or laches as he had taken timely action to put up his grievances before the authorities. Even if there was delay, it was contended, that was no reason to deny him his fundamental rights under Articles 14 and 16 and especially so since no third party would be prejudicially affected. He contended that Rule 14(e) embodies the principles of equality with a view to provide a level playing field and that Rule 14(e) confers a power coupled with duty. The Division Bench did not accept the contentions and dismissed the appeal confirming the judgment of the learned Single Judge4.
A plain reading of Rule 14(e) would show that the application of the Rule 14(e) could not be rejected at the threshold. Use of the word “shall” in the rule, obviously, indicates that the requirement of preparation and publication of supplementary list of suitable candidates, if available, for satisfying reservation quota is mandatory. The Note appended to Rule 14(e) defines a “suitable candidate” as a candidate with notified minimum qualification and marks in the selection procedure lowered to the extent necessary. Obviously, lowering of marks could only from the bench marks already fixed. What is the extent of marks required to be lowered would be known only after starting of the selection procedure and after the marks awarded to the candidates during the selection process were known. The facts were marshalled. The law was settled. The Division Bench, however, dismissed the appeal filed by the petitioner holding that the rule of game could not be changed after the game started. But every one forgot the most important factor. The need to redress the grievance of the victim. The need to compensate the wrong done to him. The Petitioner had accepted the offer of the High Court and took office of District Judge giving up his lucrative legal practice. He lost his job ultimately for no fault of his but the fault of the High Court. Should not he be recompensed? But he had to go out of court as a wronged person and an outlaw, an ignominious title which he definitely did not deserve. A clear case of “differend”.
In yet another case involving interpretation of Rule 14(e)of K.S.&S.S.R., a Division Bench was dealing with the question of segregation of backward class candidates from general merit candidates in the matter of their inclusion in the rank list prepared by the Public Service Commission (P.S.C.). P.S.C. invited applications for the post of Sub Inspector of Police.
42,000 candidates who had the notified minimum qualification applied for the post. P.S.C. conducted an OMR test for short listing the eligible candidates. The short list was restricted to a list of 2000 candidates. The mark of the 2000th candidate was 49. 49 was therefore taken as the cut off mark. Since the list so prepared did not contain sufficient number of backward class candidates to satisfy reservation quota, the cut off marks in respect of backward class candidates were lowered. Different cut off marks were fixed for different backward communities. Cut off mark for Scheduled Tribe was lowered to 32, for Scheduled Caste to 45, for Ezhava to 46 and so on. Total 657 backward class candidates who had cut off marks lowered to the extent thought to be necessary by the P.S.C. were also included in the short list. A unified short list was accordingly prepared. The unified short list came to be challenged before the Kerala Administrative Tribunal. The Tribunal rejected the challenge and upheld the unified short list of the P.S.C. Tribunal held that there was no rule which prohibited the P.S.C. resorting to such a course. This decision of the Tribunal was confirmed by a Division Bench of the High Court of Kerala on an original petition filed by the defeated party against the verdict of the Tribunal under Article 227 of the Constitution of India. P.S.C. conducted a descriptive test for all the short listed candidates. Those who came through the descriptive test were made to undergo physical efficiency test. They were thereafter subjected to interview. After the interview the P.S.C. prepared and published a rank list. P.S.C. included many backward class candidates who had been short listed lowering the cut off marks in the main rank list along with candidates who had more than the requisite cut off mark of 49 in the screening test. This action of the P.S.C. was challenged by general merit candidates in the Kerala Administrative Tribunal. The Tribunal held that ‘candidates are brought in by lowering the marks only for the purpose of satisfying the reservation turns and not for considering them in the open competition turns.’ The Tribunal, while setting aside the impugned action of the P.S.C. also held that ‘communities eligible for reservation can only claim those benefits which are expressly conferred by the Rules’ and that ‘there is no general principle of law or fundamental rights to have the benefit of lowering the marks also for satisfying the reservation turns’. The general principle of law relating to reservation in public employment arises from the concept of affirmative action to bring the weaker to a level playing field at par with the stronger, a facet of Article 14 of the Constitution of India. Quintessence of right to equality embodied in Article 14 of the Constitution of India is a basic feature of the Constitution of India5. It is a part of Rule of Law and is a common law construct. Rule 14(e) of K.S.&S.S.R. is designed to obtain level playing field for the reservation candidates. Rule 14(e) of K.S.&S.S.R. therefore directly flows from Article 14 of the Constitution of India. The moot point was, however, at what stage and in what manner Rule 14(e) had to be applied in a fact situation. Screening test for shortlisting of candidates prior to descriptive test and physical efficiency test was not part of the Special Rules. Screening test was conducted by the P.S.C. to shorten the number of candidates for its own convenience and to reduce its administrative burden. Lowering of marks in the screening test is not a step contemplated by Rule 14(e) of K.S.&S.S.R.. In normal course and going by the Special Rules all 45,000 candidates who had the minimum educational qualification were entitled to participate in the descriptive test. Facts of the case indicate that many of those who failed to reach zone of consideration for not having the cut off marks in the screening test had they been allowed to participate in the descriptive test and physical efficiency test would have got more marks than the general merit candidates who were included in the ranked list. The lowering of marks in the screen test having been legitimized by the Tribunal and the High Court for the reason of the P.S.C. having not been prevented by any statutory provision and not on account of the statutory power conferred under Rule 14(e) of K.S.&S.S.R. it was in order for the P.S.C. to have applied Rule 14(e) at the time of preparation of the Rank List. “Supplementary List” made mention of in Rule 14(e) of K.S.&S.S.R is obviously the Rank List or Select List and definitely not the “short list”. But the facts of the case indicate that Rule 14(e) was not applied by the P.S.C. at the time of preparation of the Rank List. Challenging the decision of the Tribunal, the reservation candidates took the matter to the High Court and argued that having brought to a level playing field after lowering the marks in the screen test, reservation candidates are entitled to compete with the general merit candidates in the descriptive, physical efficiency test and interview and they are entitled to be reckoned for general merit vacancies as well. The Division Bench of the High Court turned down the argument and upheld the decision of the Tribunal6. There was no lowering of marks of the reservation candidates in the descriptive test or in the physical efficiency test as contemplated in Rule 14(e) of K.S.&S.S.R to satisfy the reservation quota. There was also no Rule that those who have been short listed by lowering marks in the screening test should be included only in the supplementary list of candidates for satisfying reservation quota. The decision of the Tribunal and the Division Bench resembles the concept of “separate but equal” propounded by American Supreme Court in Plessy v. Fergusson.7 ' In Plessy a lady who purchased train ticket was not allowed to travel in a compartment meant for whites for the reason that she was black. She challenged the action as discriminatory and violating equality clause. The Railway authorities justified their action stating that the lady had been given all facilities which had been given to the whites travelling in a separate compartment and therefore there was no discrimination. The Court accepted the contention and dismissed the case. In Brown v. Board of Education8 the American Supreme Court made a departure from its earlier stand in Plessy. In Brown American Supreme Court held that segregation of black students from white students was discriminatory and violated equality clause. To ask backward community candidates to stay on a separate channel meant for them in spite of their higher rank over general merit candidates after competing with the latter in a common descriptive test, physical efficiency test and interview is nothing but to ask them to be satisfied with separate but equal treatment a concept the U.S. Supreme Court discarded in Brown. Backward class candidates thus were segregated and the brand of “backwardness” was cast on them to be carried with them throughout their future career. This is another case of “Differend”.
The increasing number of cases of the nature of “differend” in our Courts and Tribunals is a matter for grave concern. If the trend continues, soon the Courts will lose their image as the guardian of fundamental freedoms of the citizens. It is time to identify such cases and avoid the unfortunate outcome.
Foot Note :
1. ‘Differend” is a form of adjudication different from litigation. The word was coined by Jean-Francois Lyotard (See: “Differend: Phrases in Dispute”; Translation by Georges Van Den Abbeele; Manchester University Press, 1988).Lyotard explained “differend” as a ‘case where the plaintiff divested of the means to argue and becomes for that reason a victim’. If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages. A case of ‘differend’ between two parties takes place when the regulation of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.” For Lyotard ‘differend’ is opposed to litigation. Litigation is a dispute which can be equitably resolved because the parties involved can agree on a rule of judgment. Lyotard distinguishes a victim from the plaintiff. The latter is a wronged party in litigation. A victim for Lyotard is not just someone who has been wronged, but someone who has also lost the power to present this wrong. This disempowerment can occur in several ways. It may quite literally be a silencing. The victim may be threatened into silence or in some other way disallowed to speak. Alternatively, the victim may be able to speak, but that speech is unable to present the wrong done in the discourse of the rule of judgment. The victim may not be believed, may be thought to be mad or not be understood. The discourse of the rule of judgment may be such that the victim’s wrong cannot be translated into its terms. The wrong may not be presentable as a wrong. One example is that of tribal people. Tribal groups in Australia claim that land which they traditionally inhabited is now owned and controlled by the descendants of European colonists. They claim that the land was taken from them wrongly and that the land should be given to them back. There is ‘differend’ in this case because Aboriginal land rights are established by tribal law. Such rights are not presentable in court as per the law made by Australian Government. The Court which heard the claim of the Tribal people functions entirely according to law made by Australia and the Tribal law is not considered a valid system. In other words though the tribal people of Australia has a case of wrong it cannot be presented as a wrong. This is ‘Differend’ (See: “Lyotard : Internet Encyclopedia of Philosophy; http://www.iep.utm.edu/lyotard/(last visited on 8.11.2014).
2. Read the judgment reported in 2010 (4) KLT 49.
3. See Judgment dated 30.9.2013 in W.P.(C) No. 22517 of 2012.
4. See Judgment dated 26.5.2014 in W.A. No. 1663 of 2013.
5. I.R. Coelho (Dead) by L.Rs v. State of Tamil Nadu - 2007 (1) KLT 623 (SC).
6.See Judgement dated 8th August 2014 in O.P.(KAT) No.112 of 2014.
7.163 U.S. 537
8.347 U.S. 483
Desirability of Writing Judgment in Malayalam
By V.K. Babu Prakash, Judge, M.A.C.T., Thalassery
09/01/2015
Desirability of Writing Judgment in Malayalam
(By V.K. Babu Prakash, Judge, Motor Accidents Claims Tribunal, Thalassery)
“If the entire Administrative work of the Government and its intellectual activities continue to be carried on in the language of the minority, then whose interests will such a Government and its institution defend? On which side will it lean? Out of 40 crores, English has touched a fringe of 10% Indians only. The ridiculous argument that Bengali, Hindi, Marathi, Tamil and several other native languages are undeveloped, therefore, cannot, give us uptodate idea and information, is nothing, but a fallacy”.
—'Ram Manohar Lohya in his essay titled ‘language’ published in 1950, quoted by Ramachandran Guha in his book ‘Makers of modern India.’-
A retired Professor of English who happened to be a friend of mine put few formidable questions while we were interacting each other on our leisurely talk, the other day. His question really put me aghast and I stumbled to find a suitable answer, therefore, the question is cut into pieces and arranged as follows:-
1. Why do Judges and Magistrates write judgment in English language?
2. When common people are the litigants before the court of law, who are mostly illiterate, why the English language is chosen?
3. Does it not trouble the litigant to read and understand the judgment as he wanted the help of a middle man called lawyer to read and understand the judgment?
4. Most of the judgments written in English are faulty in grammar, usage, sentence construction and what not, so that, they cannot be called wholesome. Then why indulge in such ridiculous exercise, the Professor points out.
5. What is the barricade of law in writing judgment in the language of the litigant?
6. As the judgment is for the litigant and not for the lawyer, Judges and Appellate Court, why is it not written in the language of the litigant?
7. If the judgment is written in an alien language, which cannot be read and understood by the litigant himself, then does the judgment really serve its purpose?
The questions disturbed my mind for a while. I could not give a satisfactory answer to the Professor who made a bitter smile on me, which cut me a sorry figure before him. I try to find out an answer and the article is an attempt on it.
Recently, the All India Junior Advocates’ Association has moved the Supreme Court for a direction to the Central Government to conduct a feasibility of using Tamil and other regional languages in the High Courts and Supreme Court with simultaneous translations through audio system as was being done in Parliament. It also wanted a direction to the Central Government to do complete justice to lawyers in Tamil Nadu for introducing Tamil as the court language. The Tamil Nadu government moved a resolution in its Assembly making Tamil as the Court language which was forwarded to the President of India which was pending consideration with the Union Home Ministry for over six months. It is pointed out that the Bar Council of India hadpermitted Law students to take their Degree examination in regional languages. While so, failure of Government to allow lawyers to argue their cases in their regional languages in the High Courts affected their fundamental rights. It is also said that in Parliament and in several other important international conferences, it was the common knowledge that participants and those who watch proceedings would be able to hear simultaneous translation through the audio system provided in the hall. A similar audio system could be introduced in the High Court and Supreme Court. When carefully analyzed, it appears that the two arms of the democracy namely ‘Legislature and Executive’ are trying to embrace regional language and Hindi as its governing language, whereas, the third arm, Judiciary is consciously or otherwise showing its palm to the regional language making it untouchable for its embrace. Why is Judiciary showing a cold shoulder or inertia to adapt to regional language instead of wearing the English grab and writing judgmentin English language? It really alienates the judicial institutions from the people and gives rise to a frowning comment that it is a sore on the democracy itself.
Article 348 of the Constitution deals with the languages to be used in the Supreme Court and the High Courts and for Acts, Bills, etc. Article 348 can be reproduced as follows:-
(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides—
(a) all proceedings in the Supreme Court and in every High Court,
(b) The authoritative texts—
(i) of all bills to be introduced or amendments thereto be moved in either Houses of Parliament or in the House or either House of the Legislature of a State.
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State and
(iii) of all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3)Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.”
On a careful reading of the Article would shed light to the fact that it deals with the language to be used in the proceedings in the Supreme Court and every High Court. The language of the Supreme Court shall be English and the language of theHigh Courts for official purpose shall either be English or any other language including Hindi as authorised by the Governor with the consent of the President. The Article does not say anything about the language of the Subordinate Courts which makes it clear that the Constitution does not prescribe any embargo on the Subordinate Courts to use the regional language.
Now, let us look at the Civil Procedure Code and the Criminal Procedure Code with relevant Civil and Criminal Rules of Practice regarding the restriction to the use of regional language as the language of the Court. Order 20 of C.P.C. r/w S.33 of the C.P.C. says that:-
“The Court after the case has been heard shall pronounce the judgment in open court either at once or as soon as thereafter as may be practicable.”
Section 353 of Cr.P.C. says that:-
“The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders—
(a) by delivering the whole of the judgment; or
(b) or by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.
The expression ‘language’ of the court occurring in the provision does not define the kind of language. The practice is that all courts including Civil and Criminal are permitting the parties to file plaint, written statement, private complaints, affidavit etc. in the language of the party, which is Malayalam. It allows the chief examination and cross examination to be conducted in Malayalam language. Iteven permits the lawyers to present the argument in Malayalam. But the pity is that it delivers the judgment in English language, which is quite paradoxical to the entire gamut of the system. Why is it so? It appears that Article 349 of the Constitution is also relevant which says that:-
“During the period of fifteen years from the commencement of this Constitution, no Bill or amendment making provision for the language to be used for any of the purposes mentioned in clause (1) of Article 348 shall be introduced or moved in either House of Parliament without the previous sanction of the President, and the President shall not give his sanction to the introduction of any such Bill or the moving of any such amendment except after he has taken into consideration the recommendations of the Commission constituted under clause (1) of Article 344 and the report of the Committee constituted under clause (4) of that Article.”
As any other language could not be introduced as stated under Article 348(1), the CentralGovernment appointed the Official Languages Commission in 1955. Its terms and reference were to make recommendation to—
(a) the progressive use of the Hindi language for the official purposes of the Union.
(b) restrictions on the use of the English language for all or any of the official purpose of the Union;
(c) the language to be used for all or any of the purposes mentioned in Article 348.”
The Commission regarding “Language of Law Courts” held that:-
“ In some States, like Madhya Bharat, Rajasthan, Hyderabad, etc., the use of Hindi/regional language has been authorised for proceedings, other than judgments, decrees or orders of the High Courts. The country’s judicialsystem used to function, for the last few decades, in languages other than English. The change-over to Indian language media from English may appear novel to the present generation which sees before it the English language proliferated over the entire judicial system. However, it is only natural that justice should be administered in a country in its indigenous languages and, provided the change is brought about systematically, the prospect should not provoke alarm or cause apprehension about its basic practicability.
The Commission further held that:-
“When the time comes for the change-over in the lower levels of the judiciary, that is to say, courts of panchayats, Civil and Criminal Courts at the Tehsil level etc., the language of the courts must be the language best understood by thepeople, which would be the regional language(s) of the different States.
Apart from the option of delivering judgments in English, there may be an option to High Court Judges to deliver judgments in their regional languages provided English or Hindi translations of such judgments are authenticated by them.”
Although there were categorical recommendations made by the Commission, just like, the fate of every other commission report, the report of the Language Commission also gathered dust in the coffers of the Government. Why the Subordinate Courts are using English language other than the language of litigant? It appears that there is no legal obstacle standing in the way of Malayalam to be used as the language of the judgment. There are certain lame excuses prevailing among the fraternity that law is taught in English and most of its Canons are from Roman, Latin and Anglo Saxon maxims and diktats, which are unamenable for suitable Malayalam translation. That apart, Malayalam is considered as a brash and razzmatazz language which cannot imbibe legal jargons and its metaphors. Whatever it is, the foremost purpose of the judgment is to communicate to the litigant as to what happened to his case and why is it so decided. It must be in the language of the litigant. If it is not possible to deliver the judgment in Malayalam, at least a true and correct translated copy should be delivered to the litigant. While considering the pros and cons of writing judgments in Malayalam, the competing points for and against the proposition, at the end of the day, it predominantly points out that the judgment should be delivered in the language of the litigant. It is a long and overdue demand of the litigant. Better be late than never.
Jurisdiction of the Human Rights Commission
By J.B. Koshy, Chairperson, Kerala State Human Rights Commission
01/01/2015
Jurisdiction of the Human Rights Commission
(By J.B. Koshy, Chairperson, Kerala State Human Rights Commission,
Former Chief Justice of Patna High Court)
Hon’ble High Court in Sajan Varghese v. Kerala State Human Rights Commission
(2014 (3) KLT 869) held that Kerala State Human Rights Commission (Procedure)
Regulations, 2001 (hereinafter referred to as the ‘regulation’) cannot restrict powers of the Commission as provided under the Act. Following the above decision, several queries were raised regarding the ambit of the jurisdiction of the Commission.
2. Section 12 of the Protection of Human Rights Act, 1993 (hereinafter referred to as the ‘Act’) provides the functions of the Commission which 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;
(i) 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 organizations and institutions working in the field of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights.”
It is very clear from Section 12(a) (i) that the Commission can suo motu or on a petition by a victim or any person on his behalf consider complaints regarding violation of human rights or abetment thereof of any person. Sub-section (ii) of Section 12 (a) deals with the power of the Commission in entertaining complaints regarding negligence in the prevention of such violation by public servants. Section 13 of the Act deals with the powers of the Commission relating to inquiries. Section 13 (1) provides as follows:
“(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters namely:-
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination for witnesses or documents;
(f) any other matter which may be prescribed.”
The Commission can order payment of compensation or initiate proceedings for prosecution or take such further actions as it may think fit (Section 18). The Commission can also approach the Hon’ble Supreme Court or High Court. Further, under Section 18 (c) of the Act, the Commission can recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary. The Government is bound to file an action taken report within one month from the date of receipt of the recommendation of the Commission or in a further time as given by the Commission.
3. The Commission has passed Kerala State Human Rights Commission (Procedure) Regulations, 2001. Under Regulations 17, the Commission can dismiss, in limine, complaints of the following nature. Regulation 17 reads as follows:
“17. Complaints not ordinarily maintainable:-- The Commission may dismiss in limine complaints of the following nature:
(a) illegible;
(b) vague, anonymous or pseudonymous;
(c) trivial or frivolous;
(d) barred under sub-section (1) or (2) of Section 36 of the Act;
(e) allegations do not disclose involvement of any public servant;
(f) issue raised relates to civil disputes, service matters, labour or industrial dispute;
(g) allegations do not raise any violation of human rights;
(h) if the matter raised is subjudice before a Court or Tribunal;
(i) the matter is covered by a Judicial verdict/decision of the National Commission or a State Commission;
(j) where the complaint is only a copy of the petition addressed to some other authority;
(k) where the petition is not signed or where the original petition is not sent to the Commission;
(l) where the matter raised is outside the purview of the Commission or on any other ground.”
This Regulation gives power to the Commission for dismissing applications in limine. Therefore, if a matter is pending before a court or tribunal or the matter is covered by judicial verdict, the Commission will not usually interfere. But, in any proceedings in the Court or a Tribunal, if human rights violations are there, the Commission can implead itself in the proceedings. Further, in respect of service, labour or industrial disputes or in private disputes which does not disclose involvement of any public servant, the Commission has got power to dismiss the application in limine allowing the party to have recourse to civil court or authorities under the labour or respective enactments. It is not a prohibition or bar of jurisdiction. It is an enabling provision for dismissing a complaint in limine using judicial discretion depending upon the nature of the case. This is further clear from Regulation 26. Appendix II provided in Regulation 26 gives list of subject-wise incidents leading to the complaint or suo motu action which cannot be entertained by the Commission. For example, classification 400 reads as follows:
Code Major Sub-Code Sub-Heads
Number Heads Number
(1) (2) (3) (4)
400 Judiciary 400.01 Biased judiciary.
Double jeopardy.
600 Labour 600.01 Bonded Labour.
600.02 Exploitation of Labour.
600.03 Forced Labour.
600.04 Hazardous employments.
600.05 Slavery.
600.06 Traffic on human labour.
1100 Service 1100.01 Disparities in Employment
Matters opportunities.
1100.02 Non-payment of pension/
Compensation.
1100.03 Other service disputes.
1200 Women 1200.01 Abduction, rape and murder.
1200.02 Discrimination against
women.
1200.03 Dowry death or their attempt.
1200.04 Dowry demand.
1200.05 Exploitation of women.
1200.06 Gang rape.
1200.07 Indecent representation of
women.
200.08 Indignity of women.
1200.09 Immoral traffic on women.
1200.10 Rape.
1200.11 Sexual Harassment.
1300 Miscellaneous 1300.01 Disappearance.
1300.02 Land Disputes.
1300.03 Hunger Strike.
1300.04 Family disputes.
1300.05 Matters not included in the
Above mentioned items.
4. Thejurisdiction of the Commission was explained by the Hon’ble Supreme Court in Ramdeo Chauhan alias Rajnath Chauhan v. Bani Kant Das & Ors.(AIR 2011 SC 615).
In the above case, it was held by the Hon’ble Apex Court that whether denial of human rights by private parties, public institutions, governments or even by courts, the Commission can interfere. It was held as follows:
“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 jurisprudentialy 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).”
“52.................One must accept that human rights are not like edicts inscribed on a rock. They are made 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, and never really closed. That is why the residuary clause in subsection (j) has been widely worded to take care of situations not covered by sub-sections (a) to (i) of Section 12 of 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 was 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 the particular law, and benefits under that law have been denied to him, it will amount to violation of his human rights.”
The above Apex Court decision clearly shows that jurisdiction of the Human Rights Commission is very wide in dealing with human rights violationsp and there is no bar in taking action against private individuals if their acts constitute violation of human rights or abetment thereof as provided under Section 12(a) (i) of the Act. Regulations are framed by the Commission itself and it gives power to dismiss, in limine, certain kinds of petitions though it is not an absolute bar as the powers given under the Act are very wide and Regulations cannot restrict the powers given to the Commission by the Act of Parliament as held by the decision of the Hon’ble High Court in Sajan Varghese v. Kerala State Human Rights Commission (supra).
5. The observations of the Court in Sajan Varghese’s case is in conformity with the judgment of the Hon’ble Supreme Court and the Act.
Justice Krishna Iyer Never Dies
By P.B. Sahasranaman, Advocate, Ernakulam
15/12/2014
Justice Krishna Iyer Never Dies
(By P.B. Sahasranaman, Advocate, High Court of Kerala)
Justice V.R. Krishna Iyer has left us on 4th December, 2014. His erudition in English language is reflected through his judgments, articles, forewords, and letters. He has written many books mainly on jurisprudence . But there is only one book which is not on law, Death and After, wherein he has written about life after death.
His wife expired in 1973. Then he started his investigation as to whether there is life after death. According to him life and death live together and in a sense, are even complementary to each other. In the book he has stated real experiences about his communication with her. The book was re-printed five times and the last edition came out in 2012. This time Justice Krishna Iyer wanted a foreword to the same to be written by the Late T.P.Kelu Nambiar whom Justice Krishna Iyer respected. When I approached Mr. Nambiar with a request, he immediately refused that he cannot accept the proposition that there is life after death and unlike other law books this book cannot be accepted. Finally I persuaded him to read the book. On the next day he called me over the telephone and stated that this is a different book that has touched his heart. The book according to Kelu Nambiar is not a dream story but live experience.
The judgment and writings of Justice Krishna Iyer are valuable to all. The views taken by him are still valuable, followed by the Courts. His concept about the independency of judiciary is recently followed by the Supreme Court of India in a judgment rendered on 25th September, 2014 (Madras Bar Association v. Union of India ( 2014 (4) KLT Suppl. 92 (SC) = (2014) 10 SCC 1 at page 138) ), wherein a bench of five Judges , while following his judgment, stated that the necessity of judiciary which is in tune with the social philosophy of the Constitution has nowhere been better emphasized than in the words of Krishna Iyer, J. and quoted the relevant portion. Again in the same judgment it has been stated that Krishna Iyer, J. goes on to say in his inimitable style :
"Justice Cardozo approvingly quoted President Theodore Roosevelt’s stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing." (Mainstream, November 22, 1980)
The Court continued to rely on his eloquent words quoting as follows:-
"Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither Judiciary made to Opposition measure nor Government’s pleasure. (Mainstream, November 22, 1980)
The above judgment is another example of his acceptance of judicial vision to which there is no substitute. According to him death is a temporary phenomenon. In one of the recent book “Centenary Miscellany at Law” (2014) he has stated thus:-
When doctors say you are dead, they mean that the body is dead but spirit lives on and is reborn in appropriate womb. But your spiritual development enables you to realize your Universal Self and then you answer the great question, Who am I ?
In a very recent book, To work is a pleasure, there is an article titled “Death be Not Proud” states thus:-
So long as you are alive your five senses work and that causes pain. One great advantage of death is that the senses cease to function and that there is no pain, once you are dead ? Life exists through the senses but apart from the senses there are other pains of existence like moral and spiritual dimensions of stress and distress. So long as you are alive you are morally sensitive and the suffering of your neighbors makes you share it. This sense of sharing is because you are humane.
It was my dreaming coming true from 2001 onwards when such a great person starts discussing with me. To be idle without doing any work is to be unhappy to him. According to him to be in prison without doing any work is a punishment. He never was idle. When I met him on 29th November, 2014 at the room in the Medical Trust Hospital at about 8.15 a.m. he spoke to me stating that he is tired and told me that he wanted to sleep. That sleep never woke him. He was taken to the Cardiac Care Unit and I saw that he was breathing his last.
In his last book he has written thus:-
After all, I am tired and my limbs are so weak I cannot do my morning walk and my mind like my body refuses to think or write any more. I have written enough number of books, enough number of judgments and other writings that I will be remembered through them long after I am gone.
Sir, you cannot leave us. The people, not only bar and bench, will remember you forever. Your views have miles to reach and will never end. Your teachings will be used today, tomorrow and forever. You are on institution and it will survive as long as the mankind survives.
Good Bye Justice Iyer
By V.K. Babu Prakash, Judge, M.A.C.T., Thalassery
15/12/2014
Good Bye Justice Iyer
(By V.K. Babu Prakash, Judge,
Motor Accidents Claims Tribunal, Thalassery)
Words, words
too many all around.
Like sand crystals,
dewdrops, stars in the sky
words flick around
spreading its blue wings.
I find it hard
to pick few words
suitable to describe him -
and I let down myself
unable to find any.
Silence is the best one
to express one’s
deepest feelings, perhaps.
But, to be sure,
the oldest among us
can recall nothing
to compare with him
and the younger one
among you, however
long you live,
will never see
like him again.
Good Bye Justice Iyer