Kerala High Court
Kerala Pouravakasa Samrakshana ... vs Kerala State Human Rights Commission on 29 January, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941
WP(C).No.2514 OF 2020(L)
PETITIONER:
KERALA POURAVAKASA SAMRAKSHANA SAMITHY,
REPRESENTED BY ITS GENERAL SECRETARY K.PRATHAPAN,
AGED 68 YEARS, S/O.KUTTAPPAN ASARI, STATE
COMMITTEE OFFICE, ROOM 10, HINDU MISSION BUILDING,
THIRUVANANTHAPURAM, PIN - 695 001. RESIDING AT
T.C.66/2540(3), SREEVISAK,KODUNGANNUR P.O.,
THIRUVANANTHAPURAM, PIN - 695 013.
BY ADVS.
SMT.SREEDEVI KYLASANATH
SRI.ACHUTH KYLAS
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
SHRI.AMAL DEV C.V.
RESPONDENT:
KERALA STATE HUMAN RIGHTS COMMISSION,
REPRESENTED BY ITS SECRETARY, TURBO PLUS TOWER,
PMG JUNCTION, THIRUVANANTHAPURAM, PIN - 695 033.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.2514 of 2020 2
"C.R"
JUDGMENT
Dated this the 29th day of January, 2020 S.Manikumar, CJ.
Instant writ petition is filed seeking for the following reliefs:
(a) "To issue a writ of certiorari calling for records leading to Exhibit-P12 and quash the same to the extent it cancels petitioner's recognition.
(b) To issue a writ of mandamus directing the 1 st respondent to restore the cancellation of petitioner's recognition with 1 st respondent since there is no irregularities or complaint against the petitioner.
(c) To declare that the petitioner is entitled to function under 1st respondent as a NGO in the light of the Human Rights Act, 1993.
(d) To issue a writ of mandamus directing the respondent to extent all the encouragements to the petitioner's effort in the field of human rights."
2. Kerala Pouravakasa Samrakshana Samithy, the petitioner herein, is a Non-Governmental Organisation (NGO), which was registered on 13.10.1993, in accordance with the provisions of the Travancore Cochin Literary, Scientific and Charitable Society Act, 1995. The activities of the Samithy include Protection of Human Rights, create awareness of human rights, conducting seminars and meetings etc., to educate the society.
Human Rights Commission through Exhibit-P2 notification published in Mathrubhoomi daily dated 17.10.1999, invited applications from Non-
Governmental Organisations (NGOs), for registration under the Kerala W.P.(C) No.2514 of 2020 3 State Human Rights Commission. The Commission also issued Exhibit-P3 guidelines for the same. As per Chapter 3 of the Protection of Human Rights Act, 1933, Section 12(i) gives power to the Commission to encourage the efforts of NGOs and institutions working in the field of human rights. Petitioner was given recognition vide decision taken by the Commission on 4.3.2006 and recognition with the State Human Rights Commission was granted after verification with the District Collector and enquiry by the Tahsildar through the Village Officer. The District Collector vide Exhibit-P4(a) report dated 23.12.2005 stated that the Samithy is actively working from 1993 onwards and that the same is rendering services for the promotion, protection and spreading of human rights without remuneration or monetary consideration.
3. Subsequently, by Exhibit-P5 newspaper report, the recognition granted to the petitioner was withdrawn by the Commission as per decision taken in the meeting held on 27.09.2007. Petitioner has applied under the RTI Act seeking for the information whether the Commission has received any complaint against them. The reply is in negative.
4. The petitioner has approached this Court by filing W.P.(C) No.12798 of 2008 and by judgment dated 2.6.2010 (Exhibit-P9), writ court disposed of the writ petition holding that petitioner continues to be an affiliated/recognized non-voluntary organisation for the purpose of human W.P.(C) No.2514 of 2020 4 rights and directed the 1st respondent, Human Rights Commission, to continue to encourage the efforts of the petitioner's organization working in the field of human rights notwithstanding Exhibits-P5 and P6. Writ court further held that however, this will not stand in the way of the Commission taking a decision on the basis of a definite finding arrived at after affording an opportunity of being heard to the petitioner.
5. In the light of abovesaid judgment, petitioner is engaged in human rights activities and there was no complaint from any quarters.
The 1st respondent in its meeting No.63 reconsidered its decision and decided to cancel the recognition given to the petitioner on the ground that the Act does not contain any enabling provisions for recognition to any Non Governmental Organizations. Consequently, Exhibit-P12 communication dated 20.11.2019 was issued. Being aggrieved, this writ petition is filed on the following grounds:
"A. The course of action that would have been taken by the Commission in misrepresentation or foul play or cheating was to identify such cases and take appropriate action under the respective statute and filing criminal case against them. By the decision of the Commission in de-recognition of the organisation like the one of the petitioner which is working actively for all these years, a wrong signal is given to the public. The public will count petitioner also on par with the NGOs/Persons who played foul play, cheating etc. By the arbitrary decision of the W.P.(C) No.2514 of 2020 5 Commission, the Kerala Pouravakasa Samrakshana Samithy which is actively rendering services for the human rights protection and is having a clean and spotless record for all these years and active in the field, its reputation is highly damaged by the decision taken by the Commission vide Ext. P-12. The action of 15 th respondent is arbitrary, illegal and unjustifiable.
B. The decision taken by the Commission vide Exhibit P-12 is arbitrary and without taking into consideration of the unblemished and active services rendered by the petitioner. Section 12 of the Human Rights Act 1993 deals with functions of Commission. As per Section 12(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". As per Section 12(i) "encourage the efforts of non-governmental organisations and institutions working in the field of human rights". As per the act, it is the function of the Commission to encourage the efforts of Non-Governmental Organisations and Institutions working in the field of human rights. By cancelling petitioner's registration for the fault committed by some other organisation, the 1 respondent is acting in excess of jurisdiction.
C. By the action of the Human Rights Commission, the petitioner's reputation before the public is highly affected.
D. Petitioner has been given recognition vide decision taken by the Hon'ble Commission on 04.03.2006 and to include on the Roll of the Commission. Pursuant to the decision on 04.03.2006 vide letter dated 10.03.2006, the 1 st respondent directed the petitioner to conduct a Seminar on Human Rights during April, 2006. 1st respondent considered its decision in its meeting No. 63, to grant recognition with 1 st respondent. It is W.P.(C) No.2514 of 2020 6 pertinent to note that the cancellation is made on the ground that Act does not contain any enabling provisions for granting recognition to any Non Governmental Organization. As per Section 12(1) of the Act, the commission has to encourage the efforts of nongovernmental organizations and institutions working in the field of human rights. But without encouraging, in violation of the provisions, the recognition already granted and functions for the last 18 years is cancelled in the ground that there is no, provision in the Act to grant recognition to any Non Governmental organization.
E. There is no definite finding arrived at against the petitioner for cancellation of recognition enjoyed for last 13 years as directed in Exhibit-P9. There is no complaint against him from any corner as shown. Exhibit-P12 is issued in violation of Exhibit- P9 judgment dated 2.6.2010. It is after long nine years, Exhibit- P13 is issued. In the light of Exhibit-P9, recognition granted by the 1st respondent is reviewed by the same authority and has cancelled arbitrarily after 13 years without any complaint against the petitioner."
6. Heard learned counsel for the parties and perused the material available on record.
7. Proceedings of the 1st respondent dated 4.4.2014 in HRMP No.2877 of 2014 (Exhibit-P10) is extracted hereunder:
"Kerala State Human Rights Commission, Thiruvananthapuram BEFORE Justice J.B. Koshi, Chairperson Dated 4th April, 2014 H.R.M.P No. 2877/2014 W.P.(C) No.2514 of 2020 7 Complainant: Kerala Pouravakasha Samrakshna Samithi, Represented by General Secretary, Sri. K. Prathapan (Kalipankulam Prabha), T.C.6/2540(3), Sri Vishak, Kodunganur P.O, Pin - 695 013 PROCEEDINGS It was informed through the Kerala Pouravakasha Samrakshna Samithi was recognized as per letter dated 10.03.2006. Although due to the complaints received with respect to functioning of certain organizations the Commission on 2007 decided not to give recognition to any organizations. The complainant organization filed a writ petition before the Honourable High Court and it was directed that cancelling the recognition of those organization without hearing them is incorrect. The News report on 27.02.2014 was due to a complaint against Kerala State Human rights commission. That organization was asked to give an explanationas to whether there was any affiliation with Lok Ayukta or Legal Service authority. That organization gave explanation and the proceedings are continuing. Therefore the report dated 27.02.2014 is not applicable to the complainant organization. Even then Human rights commission does not provide identity card to any members of organization. No act or rule in Human Rights prescribes the need of issuing identity cards. But it is stated in the Act to encourage Human Rights activities. Therefore the members of Human rights Commission tries to attend seminars and other programmes conducted by the Human rights Organizations. Likewise if such organisations point out any human right violation then the same will be considered as complaint and action will be taken against the same.
A commission consists of a Chairperson and two members. Around ten thousand cases are filed in a year. Sitting are held at W.P.(C) No.2514 of 2020 8 the capital and every district headquarters to hear, dispose and proceedings have to be passed for each case. Even then, if time allows the commission and its members try to attend seminars and other programmes conducted by voluntary organizations when invited. Since the sittings and other programmes of the commission are scheduled two months prior, if a date for conducting seminar and other programmes after consulting with the commission prior to the said two months, they shall participate. Similarly if complainant had invited, they will participate. Commission is working with the grant provided by the Government. The commission has no fund to provide financial support to voluntary organization. Commission have not provided grant or identity card to any of its members or organizers of any organisation. The commission has no objection If any of the organization provides identity cards to any of its members or organizers. But in the guise of Human rights activities they cannot collect funds forcefully. The members of the Human Rights organizations or its officers cannot misrepresent themselves as the members of Human Rights Commission. No organization has the authority to use the identity card or board misrepresenting as the member of Kerala State Human Rights Commission Member. Commission shall take action against those who create misrepresentation among the public using the Identity Card or Board. Commission cannot issue identity card to the office bearers of complainant organization. Commission shall issue identity cards only to its employees.
A copy of the proceedings shall be issued to the complainant.
Signature S/d Chairperson"W.P.(C) No.2514 of 2020 9
8. Communication No.15863/CR/A2/2019/HRC dated 20.11.2019 (Exhibit-P12) is extracted hereunder:
"KERALA STATE HUMAN RIGHTS COMMISSION Turbo Plus Tower PMG Jn, Vikas Bhavan P.O., Thiruvananthapuram-13 Phone-0471-2307263, Fax:0471-2307490 e-mail:[email protected] No.15863/CR/A2/2019/ HRC Date:20-11-2019 From The Secretary, Kerala State Human Rights Commission.
To The Secretary, Kerala Pouravakasha --
Samrakshana Samathi, Hind Mission Room No. 10, Thiruvananthapuram.
Sir, Sub:-KSHRC -- WP ( C) No. l2798/ 2008- Hearing and Orders Issued Ref:- 1. WP ( C) No. 12798/2008 "
2. Decision of the Kerala State Human Rights Commission on 06-11-2019 ...
I would invite your attention to the reference 1st cited and I am forwarding herewith the copy of the decision dated 06-11-2019 cited 2nd above for your kind information.
Yours faithfully Sd/-
Secretary Following persons participated in the hearing today (06-11-2019) W.P.(C) No.2514 of 2020 10
1) K. Prathapan, Secretary
2) Adv. K. S. Ashok K umar, Executive Committee Member
3) A.K. Purushothaman, Treasurer During the hearing, the parties were informed that there is no provision in the Protection of Human Rights Act, I993 to grant recognition to any NGO and that in such circumstances, the decision of the Commission in its meeting No. 63, calls reconsideration. Adv. K.S. Ashok Kumar and the others who attended the hearing did not dispute the legal position but requested that since they have not misused the recognition granted by the Commission, their case may be treated as a special one and that the recognition be maintained.The Commission considered the submissions made. This Commission cannot act beyond the provisions of the Act, I993. The Act 1993 does not contain any enabling provision for granting recognition to any NGO. Therefore the decision in the meeting No. 63 to grant recognition to the NGO is an ultra vires decision. Consequently it is decided that the decision granting recognition to Kerala Pouravakasha Samrakshna Samathi be cancelled. However, it is made clear that this decision shall not in any manner affect the statutory function of the Commission under Section 12(i) of the Act, 1993, to encourage NGO's, including the Pouravakasha Samrakshna Samathi.
Secretary will convey this decision to the Kerala Pouravakasha Samrakshna Samathi "
Sd/- Sd/-
Justice Antony Dominic Sri.P.Mohandas
Hon'ble Chairperson Hon'ble Member"
W.P.(C) No.2514 of 2020 11
9. Reply to the application under Right to Information Act dated 23.12.2019 (Exhibit-P14) is extracted hereunder:
"KERALA STATE HUMAN RIGHTS COMMISSION Turbo Plus Tower PMG Jn, Vikas Bhavan P.O., Thiruvananthapuram-13 Phone-0471-2307263, Fax:0471-2307490 No. 21178/P10/19/HRC Date: 23rd December, 2019 From State Public Information Officer To K.S. Ashok Kumar, Advocate, House No. 33, Padma Nagar, Fort P.O, Thiruvananthapuram-695023.
Sir, Sub; Information sought by Sri. K.S. Ashok kumar under Right to nformation Act 20054 reg:-
Ref: Your Application dated 06.12.19 received by this office on 09.12.2019.
Kind attention is invited to the reference cited. Information pertaining to your query with respect of the undersigned State Public Information Officer is as follows:
1. Kindly produce original chalan remitting an amount of Rs.
12/- towards treasury head of account "0070-60-118-99 Receipt under the Right to Information Act 2005"
2. Information sought for does not come under the purview of sec.2(i) of Right to Information Act 2005.
3. No NGO's are recognized by the Kerala State Human Rights Commission.
4. Same as query 2 above
5. No written complaint was received by the Kerala State Human Rights Commission yet.W.P.(C) No.2514 of 2020 12
6. Same as query 2 above.
7. The information asked for is available in the document to be issued under query 1.
If you are not satisfied with the above reply/information, you are entitled to prefer an appeal before the following Appellate Authority of this office within 30 days from the date of receipt of this letter.
Address of Appellate Authority Smt.G.S.Asha, Registrar/Appellate Authority Kerala State Human Rights Commission P.M.G.Junction, Vikas Bhavan P.O., Thiruvananthapuram-33.
Yours faithfully, Raghuram.G, State Public Information Officer"
10. Protection of Human Rights Act, 1993 (Act 10 of 1994) is an act to provide for the constitution of a National Human Rights Commission, State Human Rights Commission n States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto. Chapter II of the Act deals with the National Human Rights Commission. Section 3 deals with Constitution of a National Human Rights Commission and the same reads thus:
"3. Constitution of a National Human Rights Commission.--
(1) The Central Government shall constitute a body to be known as the National Human Rights Commission to W.P.(C) No.2514 of 2020 13 exercise the powers conferred upon, and to perform the functions assigned to, it under this Act. (2) The Commission shall consist of--
(a) a Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme Court;
(c) one Member who is, or has been, the Chief Justice of a High Court;
(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
(3) The Chairperson of the National Commission for Minorities, The National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.
(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission except judicial functions and the power to make regulations under section 40B as may be delegated to him by the Commission or the Chairperson, as the case may be.
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India."W.P.(C) No.2514 of 2020 14
11. Chapter III deals with the functions and powers of the Commission. Section 12 deals with functions of the Commission and the same reads thus:
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 1[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.W.P.(C) No.2514 of 2020 15
(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."
12. Sections 13, 14, 15 and 16 of Act 10 of 1994, which speak about the powers of the Commission relating to inquiries, investigation, statement made by persons to the Commission, persons likely to be prejudicially affected to be heard, are extracted hereunder:
"13. Powers relating to inquiries.--
(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;W.P.(C) No.2514 of 2020 16
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.
(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused W.P.(C) No.2514 of 2020 17 as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act: Provided that no such complaint shall be transferred unless the same is one respecting which the State Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State Commission as if it were a complaint initially filed before it."
14. Investigation.--
(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence W.P.(C) No.2514 of 2020 18 of the Central Government or the State Government, as the case may be.
(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission,--
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.
(3) The provisions of section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.
(4) The officer or agency whose services are utilised under sub-
section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.
W.P.(C) No.2514 of 2020 1915. Statement made by persons to the Commission.--No statement made by a person in 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:
Provided that the statement--
(a) is made in reply to the question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of the inquiry.
16. Persons likely to be prejudicially affected to be heard.--
If, at any stage of the inquiry, the Commission--
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to the person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached."
13. Chapter IV deals with the procedure of the Commission.
Sections 17, 18 and 19 under Chapter IV of Act 10 of 1994 are extracted hereunder:
"17. Inquiry into complaints.--The Commission while inquiring into the complaints of violations of human rights may--
(i) call for the information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it:
W.P.(C) No.2514 of 2020 20Provided that--
(a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry."
"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;W.P.(C) No.2514 of 2020 21
(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."
"19. Procedure with respect to armed forces.--
(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:--
(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;
(b) after the receipt of the report, it may either not proceed with the complaint or, as the case may be, make its recommendations to that Government.W.P.(C) No.2514 of 2020 22
(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative."
14. Chapter V deals with the Constitution of State Human Rights Commission. Section 21 under Chapter V of Act 10 of 1994 is extracted hereunder:
"21. Constitution of State Human Rights Commission.--
(1) A State Government may constitute a body to be known as the ........ (Name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to a State Commission under this Chapter. 1[(2) The State Commission shall, with effect from such date as the State Government may by notification specify, consist of--
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge;W.P.(C) No.2514 of 2020 23
(c) one Member to be appointed from among persons having knowledge of or practical experience in matters relating to human rights.
(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List II and List III in the Seventh Schedule to the Constitution", the words and figures "List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted.
(6) Two or more State Governments may, with the consent of a Chairperson or Member of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if such Chairperson or Member consents to such appointment:W.P.(C) No.2514 of 2020 24
Provided that every appointment made under this sub-section shall be made offer obtaining the recommendations of the committee referred to in sub- section (1) of section 22 in respect of the state for which a common chairman or member, or both, the case may be, is to be appointed."
15. Section 40B of Act 10 of 1994 speaks about the powers of the Commission to make regulations and the same is extracted hereunder:
"40B. Power of Commission to make regulations.--
(1) Subject to the provisions of this Act and the rules made thereunder, the Commission may, with the previous approval of the Central Government, by notification, make regulations to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:--
(a) the procedure to be followed by the Commission under sub-section (2) of section 10;
(b) the returns and statistics to be furnished by the State Commissions;
(c) any other matter which has to be, or may be, specified by regulations.
(3) Every regulation made by the Commission under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session or the successive sessions aforesaid, both Houses agree in making any modification in the W.P.(C) No.2514 of 2020 25 regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.
16. Section 41 of Act 10 of 1994 speaks about the powers of State Government to make rules and the same is extracted hereunder:
"41. Power of State Government to make rules.--
(1) The State Government may, by notification make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(a) the salaries and allowances and other terms and conditions of service of the Chairperson and Members under section 26; the Chairperson and Members under section 26;"
(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the State Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 27;
(c) the form in which the annual statement of accounts is to be prepared under sub-section (1) of section 35. (3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House."
W.P.(C) No.2514 of 2020 2617. In exercise of the powers conferred by Section 41 of Act 10 of 1994, Government of Kerala have framed the Kerala State Human Rights Commission Rules, 1998. Rules 13 and 14 of the said Rules are extracted hereunder:
"13. Officers and other employees of the State Commission:-
(1) All officers and employees of the State Human Rights Commission shall constitute the Kerala State Human Rights Commission Service.
(2) The number of employees of the Kerala State Human Rights Commission, their qualifications, method of appointment and scale of pay shall be specified in the chedule I to these rules and or as may be decided by the State Government from time to time.
(3) In all cases of direct recruitment provisions in rules 14 to 17 of the General Rules in Part 11 of the Kerala State and Subordinate Service Rules, 1958 shall be followed.
(4) Selection of candidates for appointment to selection categories or grades in the Service shall be made by Departmental Promotion Committee constituted by the State Human Rights Commission.
(5) The officers and other employees of the State Human Rights Commission shall be entitled to all allowances and benefits admissible to State Government Employees with corresponding scales of pay.
(6) In matters relating to age for appointment, probation, pay and allowances, disciplinary actions, benefits and W.P.(C) No.2514 of 2020 27 entitlements, and age of retirement, the officers and other employees of the State Human Rights Commission shall be governed by the rules as are applicable to persons holding equivalent posts in the services of State Government."
"14. Administration and disciplinary control over the Officers, employees and investigating staff.-
In the discharge of their functions under the Act, the officers and employees referred to in section 27 of the Act shall, while they are in the service of the Commission, be subject to the exclusive administration and discplinary control of the Commission."
18. None of the provisions of Protection of Human Rights Act, 1993 and the Kerala State Human Rights Commission Rules, 1998, empower the Human Rights Commission, either National or State, as the case may be, to grant recognition to any Non-Governmental Organizations, engaged in human rights activities. Section 12(1) of the Protection of Human Rights Act relied on by the petitioner only states that the Commission shall encourage the efforts of NGOs and institutions working in the field of human rights. It does not clothe any power to issue any order of recognition. Merely because, the State Human Rights Commission in its meeting held on 27.09.2007 has taken a decision to grant recognition to the petitioner, it cannot be contended that the Commission has no power to review the same in the light of the statutory provisions of the W.P.(C) No.2514 of 2020 28 Protection of Human Rights Act, 1993. Letter dated 23.12.2019 of the State Commission is explanatory. When the statute does not confer any right on the part of the NGOs to demand that an order of recognition should be issued by the Commission nor casts a corresponding duty on the part of the Commission to do so, petitioner cannot seek for a writ of mandamus against the Commission. Reference can be made to a few decisions as to when a mandamus can be issued:
"(a) In State of U.P. and Ors. v. Harish Chandra and Ors. reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition...."
(b) In Union of India v. S.B. Vohra reported in (2004) 2 SCC 150, the Hon'ble Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(c) In Oriental Bank of Commerce v. Sunder Lal Jain reported in (2008) 2 SCC 280, at paragraph 11, the Hon'ble Supreme Court has held as under:
W.P.(C) No.2514 of 2020 29"11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr. Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed W.P.(C) No.2514 of 2020 30 by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned- an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action."
These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh (1977 AIR 2149), after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah (1966 AIR 334), Rai Shivendra Bahadur (Dr.) v. Nalanda College (1962 AIR 1210) and Umakant Saran (Dr.) v. State of Bihar (AIR 1973 SC 964), the Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53) "15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief W.P.(C) No.2514 of 2020 31 function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
(d) In State of Kerala v. A.Lakshmi Kutty reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that.-
"A writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of W.P.(C) No.2514 of 2020 32 a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
(e) In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that,-
"Certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi- judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This W.P.(C) No.2514 of 2020 33 principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied)
19. Petitioner, a registered society under the Society Registration Act, 1860, is governed by the statutory provisions contained therein.
There is no provision in Act 10 of 1994 or the Kerala State Human Rights Commission Rules, 1998, enabling the Commission to have any pervasive control or monitoring of the Non Governmental Organisations, engaged in human rights activities. At best, it can only encourage such institutions.
Issue as to whether there was any complaint against the petitioner or not is irrelevant, for the reason that, going through the provisions of Act 10 of W.P.(C) No.2514 of 2020 34 1994, the Commission has come to the conclusion that they cannot act beyond the provisions of the Act, 1993. Act does not contain any enabling provision for granting recognition to any NGOs.
n the light of the above discussion and decisions, relief sought for by the petitioner in this writ petition cannot be granted. Writ petition is dismissed. Impugned proceedings of the Kerala State Human Rights Commission dated 04.04.2014 is sustained. No costs.
S.MANIKUMAR CHIEF JUSTICE SHAJI P.CHALY JUDGE Krj.2/2 W.P.(C) No.2514 of 2020 35 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 13/10/1994 WITH TRANSLATION.
EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION INVITING APPLICATION FROM NGOS FOR REGISTRATION WITH TRANSLATION.
EXHIBIT P3 A TRUE COPY OF THE GUIDELINES ISSUED BY 1ST RESPONDENT FOR THE INCLUSION OF NGOS IN ITS REGISTER.
EXHIBIT P4 A TRUE COPY OF LETTER OF 1ST RESPONDENT DATED 10/3/2006.
EXHIBIT P4 (A) A TRUE COPY OF THE REPORT OF DISTRICT COLLECTOR ON PETITIONER'S FUNCTIONING AND REPUTATION DATED 23/12/2005 WITH TRANSLATION.
EXHIBIT P5 A TRUE COPY OF THE NEWS PAPER REPORT REGARDING CANCELLATION OF REGISTRATION WITH TRANSLATION.
EXHIBIT P6 TRUE COPY OF THE MINUTES OF HE MEETING DATED 27/9/2007.
EXHIBIT P6 (A) TRUE COPY OF THE LETTER DATED 11/10/2007 FORWARDING THE MINUTES OF MEETING.
EXHIBIT P7 A TRUE COPY OF THE REQUEST MADE UNDER RIGHT TO INFORMATION ACT BEFORE THE 1ST RESPONDENT OFFICE DATED 29/01/2008 WITH TRANSLATION.
EXHIBIT P7 (A) TRUE COPY OF THE REPLY RECEIVED FROM 1ST RESPONDENT'S OFFICE DATED 29/02/2008 WITH TRANSLATION.
EXHIBIT P8 A TRUE COPY OF LETTER NO.4371/E2/HRC/08 DATED 12TH MARCH, 2008.
EXHIBIT P9 A TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA DATED 02/06/2010 IN W.P.(C) 12798/2008.
EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 04/04/2014 IN HRMP NO.2877/2014 WITH TRANSLATION.
EXHIBIT P11 A TRUE COPY OF THE NOTICE DATED 19/10/2019 OF 1ST RESPONDENT WITH TRANSLATION.
EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION NO.15863/CR/A2/2019/HRC DATED 20/11/2019 OF 1ST RESPONDENT.W.P.(C) No.2514 of 2020 36
EXHIBIT P13 THE TRUE COPY OF THE RTI APPLICATION DATED 06/12/2019.
EXHIBIT P14 THE TRUE COPY OF THE REPLY TO THE RTI DATED 23/12/2019.
RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A TO JUDGE