A judgment of the Supreme Court in Ramdeo Chauhan v. Bani Kant Das (Review Petition 1378 of 2009, judgment dated November 19, 2010) has discussed in detail issues in human rights law. On a first glance through this judgment, it seems to have considerable implications on several areas of public law.
The facts as detailed in the judgment are that the petitioner was accused of a crime u/s 302 of the Indian Penal Code on the basis of an FIR lodged by the first respondent. The trial court held the accused guilty, and also held that the death penalty was warranted in the circumstances of the case. The plea was raised on behalf of the accused that at the time of commission of the crime, he was below 16 years of age. The Trial Court rejected this plea. The High Court confirmed the conviction and sentence of death against the accused. Before the High Court, the Counsel for the accused specifically submitted that he was not challenging the finding of the trial Court as to the age of the accused- petitioner. The appeal from the judgment of the High Court was dismissed by a bench of the Supreme Court without going into the issue of the age of the accused-appellant at all.
A review petition was filed against the order; and in that review petition it was held that while the question of conviction could not be gone into, the question of age of the petitioner could be looked at, in view of a legal prohibition against sentencing a juvenile. The matter was referred to a three-Judge Bench of the Supreme Court. The three-Judge Bench held, per Justice Sethi that, "From the evidence produced and the material placed before the courts below, there is not an iota of doubt in my mind to hold that the petitioner was not a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act." Justice Phukan, concurring, held that the question of death penalty could not be reviewed. However, he went on to say, "the factors which have weighed with my learned Brother Mr. Justice Thomas can be taken note of in the context of section 432(2) of the Code." It appears that Justice Phukan was thus of the view that the facts stated in the dissenting judgment had force; but in law, a review petition was not the appropriate remedy. Justice Thomas, dissenting, held that the age of the accused at the relevant time was not conclusively established to be above 16, and consequently, in view of the small doubt, the death sentence should not be awarded.
Meanwhile, before the judgment in the review petition, the petitioner had also filed a mercy petition before the Governor for commutation of sentence. While this mercy petition was pending, a scholarly article appeared in a journal, asking whether a child was about to be executed. This article came to the notice of the National Human Rights Commission. After the judgment in the review petition, but before a decision on commutation, the NHRC opined, "The Commission is of the view that the above opinion of Thomas, J. in the judgment disposing of the review petition and the above quoted observations of Phukan, J. are very strong reasons to support the view and this is a fit case for commutation of the sentence... This Commission is of the considered view that the case, placing reliance on the views of Thomas, J. and Phukan, J., who were two of the three learned Judges, constituting the Bench deserves the highest consideration by the executive authority while considering the question of commutation of sentence..."
The Governor on the basis of this commuted the death sentence. A writ petition was filed by the relatives of the victims under Article 32 of the Constitution; challenging the order of the Governor. The NHRC was also made a party to this writ. A Bench of the Supreme Court set aside the order of the governor, holding that the NHRC proceedings were not in accordance with the Protection of Human Rights Act, 1993; and consequently, could not have formed the basis of the Governor's order commuting the death sentence. The Governor was directed to consider the matter afresh. Another review petition was filed; and was disposed off in the judgment dated November 19, 2010.
Article 137 of the Constitution provides, "137. Review of judgments or orders by the Supreme Court: Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it." The relevant Rules are the rules framed under Article 145 of the Constitution. Relevant to review proceedings is Part VIII Order XL of these rules. Order XL Rule 1 provides that in reviewing the judgment in a civil proceeding, the Court will go by the grounds as in Order XLVII Rule 1 of the CPC. However, it is also provided that in case of criminal proceedings, no review is permissible except on the ground of error apparent on the face.
The Supreme Court found that in the impugned judgment under review, the Court had come to the conclusion that (a) the NHRC had no jurisdiction to interfere in the matter and make any recommendation, and (b) The order of the Governor in commuting the death sentence was bad in law. The Court disagreed with both these conclusions.
The Court referred to Section 2(d) of the Human Rights Act, 1993, which defines 'human rights' to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India." Taking this into account, and also considering that the NHRC is given wide powers under section 12 of the Act, the Supreme Court held that "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." The Court then described what its approach in human rights cases should be. The Court observed:
"It must be jurisprudentially 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). Therefore, it is imperative that while interpreting the powers and jurisdiction of NHRC, the Court construes section 2(d) of the 1993 Act along with its long title and also the Statement of Objects and Reasons of the said Act. The relevant portion of the statement of objects and reasons are excerpted below: "2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures, and system of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation." ... What was said by Alexander Hamilton, the great constitutional expert and political philosopher, way back in 1775, is poignant still today for having a clear perception of what human rights are. The words of Hamilton still resonate with a strange relevance and immediacy, and are quoted below: "The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power." Keeping those broad principles in our mind if we look at Section 12(j) of the 1993 Act, we find that it confers on NHRC "such other functions as it may consider necessary for the promotion of human rights." It is not necessary that each and every case relating to the violation of human rights will fit squarely within the four corners of section 12 of the 1993 Act, for invoking the jurisdiction of the NHRC. One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade 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, are never really closed. That is why the residuary clause in sub-section (j) has been so widely worded to take care of situations not covered by sub- sections (a) to (i) of Section 12 of the 1993 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 is 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 a particular law, and benefits under that law have been denied to him, it will amount to a violation of his human rights."
The approach of the Court thus far appears to be clearly correct; both as a matter of constitutional law and as a matter of statutory interpretation. On this basis alone, the Court could have said that there was an error apparent in the judgment under review.
However, the Court also went ahead with some bold observations. It stated, "The assumption in the judgment under review that there can be no violation of a person's human right by a judgment of this Court is possibly not correct..." Furthermore, "There is no doubt that the majority judgment of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be `confined to the dustbin of history." Factually, these propositions are hard to argue against. However, as a matter of law, does this mean that fundamental rights can be violated by judicial orders? Where does that leave the whole debate as to whether judiciary is state under Article 12 of the Constitution? If so, can such order be challenged by way of a writ petition under Article 32 (notwithstanding the availability of curative/review petitions, appeals etc., considering that Article 32 gives a right to judicial remedies)? Again, undoubtedly, the judgment in the Habeas Corpus case was clearly incorrect. However, is it open to a 2 Judge Bench effectively to say so? To my knowledge, the judgment of ADM Jabalpur has never been specifically overruled – there has been no need to do this given subsequent constitutional amendments. Are readers aware of any such decision specifically overruling ADM Jabalpur? (Of course, as I already stated above, the Court's decision itself is on much sounder footing.)
Coming back to the NHRC issue, the Court also clarified that "NHRC cannot function as a parallel seat of justice to rectify or correct or comment upon orders passed by this Court or any other Courts of competent jurisdiction. For correcting an order in a judicial proceeding, the aggrieved party has to avail of the well established gamut of the corrective machinery of appeal, revision, review, curative petition and so on..." It was held that on the facts of the case, the NHRC had acted within its jurisdiction; as it was simply making a recommendation to the Governor for commutation, and was not subverting the judicial hierarchy in any manner. Accordingly, the review petition was allowed; and the order of the Governor was upheld. The Court went on to clarify that the Court was not making any specific finding on the applicability of the Juvenile Justice Act; as the issue in the review proceedings was solely limited to those issues which were considered in the original proceedings.
It is submitted that the Court's decision is based on a detailed interpretation of the Human Rights Act and is in accordance with the principles of review of judgments; however, some of the observations (as highlighted above) do require to be understood in their context. It is perhaps time for a fresh consideration of the issue of whether judiciary is state under Article 12. Independent of that, the judgment offers strong guidance on the interpretation of human rights legislation.