“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 35 OF 2012
Common Cause …. Petitioner
Versus
Union of India & Ors. …. Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Through the instant Writ Petition filed by Common Cause invoking the
jurisdiction of this Court under Article 32 of the Constitution of India,
it is brought out, that there are extensive allegations against the present
Chairman of the National Human Rights Commission (hereinafter referred to
as the “Commission”), which require to be enquired into. It is submitted,
that under the provisions of the Protection of Human Rights Act, 1993
(hereinafter referred to as the “1993 Act”), the authority to initiate an
enquiry into the matter, is vested with the President of India. It is
accordingly pointed out, that a communication dated 4.4.2011 was addressed
by Campaign for Judicial Accountability and Reforms, to the President of
India, requesting her to make a reference to the Supreme Court for holding
an enquiry, to probe the allegations levelled against Mr. Justice K.G.
Balakrishnan, ex-Chief Justice of India, under Section 5 of the 1993 Act.
2. It is pointed out, that even though a period of more than one year
has lapsed since the aforesaid communication was addressed to the President
of India and the Prime Minister of India, the petitioner has neither
received a response to the communication dated 4.4.2011, nor has a
reference been made by the President of India to the Supreme Court under
Section 5 of the 1993 Act.
3. During the course of hearing, learned counsel for the petitioner
invited our attention to a newspaper report, which had appeared in the
Economic Times dated 22.6.2011, containing allegations against three
relatives of Mr. Justice K.G. Balakrishnan. It is submitted, that two sons-
in-law and a brother of the present incumbent of the Office of Chairman of
the Commission, were blamed for having assets beyond their known sources of
income. Reference was also made to the communication dated 4.4.2011
addressed by the Campaign for Judicial Accountability and Reforms to the
President of India, where allegations were levelled against the Chairman of
the Commission under five heads. Firstly, for owning benami properties in
the names of his daughters, sons-in-law and brother ; secondly, for getting
allotted benami properties from the Chief Minister of Tamil Nadu in the
name of his former-aide M. Kannabiran ; thirdly, for approving evasive and
false replies to an application under the Right to Information Act filed by
Shri Subhash Chandra Agarwal, relating to declaration of assets by Judges
of this Court ; fourthly, resisting attempts to stop the elevation of
Justice P.D. Dinakaran to the Supreme Court of India, despite allegations
of land-grab, encroachment and possessing assets beyond his known sources
of income ; and lastly, suppressing a letter written by a Judge of the High
Court of Madras, alleging that a former Union Minister (A. Raja) had tried
to interfere in his judicial functioning. Based on the aforesaid
allegations, it was sought to be concluded, that Justice K.G. Balakrishnan,
the present incumbent of the Office of Chairman of the Commission, has been
guilty of several acts of serious misbehaviour. It was accordingly the
claim of the petitioner, that a reference be made for an enquiry into the
aforesaid alleged acts of misbehaviour at the hands of Justice K.G.
Balakrishnan, to the Supreme Court under Section 5 of the 1993 Act.
4. Section 5 of the 1993 Act is being extracted hereinbelow:-
“5. Resignation and removal of Chairperson and Members
(1) The Chairperson or any Member may, by notice in writing
under his hand addressed to the President of India, resign
his office.
(2) Subject to the provisions of sub-section (3), the
Chairperson or any Member shall only be removed from his
office by order of the President of India on the ground of
proved misbehaviour or incapacity after the Supreme Court,
on reference being made to it by the President, has, on
inquiry held in accordance with the procedure prescribed in
that behalf by the Supreme Court, reported that the
Chairperson or the Member, as the case may be, ought on any
such ground to be removed.
(3) Notwithstanding anything in sub-section (2), the
President, may, by order, remove from office the
Chairperson or any other Member if the Chairperson or such
other Member, as the case may be, -
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid
employment out side the duties of his office: or
(c) is unfit to continue in office by reason of infirmity
of mind or body; or
(d) is of unsound mind and stands so declared by a
competent court; or
(e) is convicted and sentenced to imprisonment for an
offence which in the opinion of the President
involves moral turpitude.”
A perusal of Section 5(2) reveals the procedure for removal of a
Chairperson/Member of the Commission. It is apparent from the procedure
contemplated under Section 5(2) of the 1993 Act, that on being satisfied,
the President of India shall require an enquiry to be conducted by the
Supreme Court. It is also apparent that the President of India, while
discharging her duties, is to be guided by the Council of Ministers.
Accordingly, in terms of the mandate of Section 5(2) of the 1993 Act, if a
decision is to be taken to hold an enquiry against an incumbent
Chairperson/Member of the Commission, the President of India would require
the advice of the Council of Ministers. It is only thereafter, if a prima
facie case is found to be made out, that the President of India on being
satisfied, may require the Supreme Court to initiate an enquiry into the
allegations, under Section 5(2) of the 1993 Act.
5. The facts narrated in the pleadings of the instant case and the
submissions made by the learned counsel appearing on behalf of the
petitioner reveal, that a series of allegations have been levelled against
the Chairman of the Commission, in the communication addressed by Campaign
for Judicial Accountability and Reforms, to the President of India and
Prime Minister of India, on 4.4.2011. These allegations ought to have been
forwarded to the Supreme Court, for an enquiry into the matter. The same
having not been done, a prayer has been made by the petitioner, for the
issuance of a writ in the nature of Mandamus, requiring the President of
India to make a reference to this Court under Section 5(2) of the 1993 Act,
for holding an enquiry against respondent No. 3, i.e., the present Chairman
of the Commission.
6. We have given our thoughtful consideration to the solitary prayer
made in the instant Writ Petition. It is not possible for us to accept the
prayer made at the hands of the petitioner, for the simple reason that the
first step contemplated under Section 5(2) of the 1993 Act is the
satisfaction of the President of India. It is only upon the satisfaction
of the President, that a reference can be made to the Supreme Court for
holding an enquiry. This Court had an occasion to deal with a similar
controversy based on similar allegations against respondent No. 3 in
Manohar Lal Sharma Vs. Union of India [W.P. (C) No. 60 of 2011 decided on
7.5.2012], wherein this Court, while disposing of the Writ Petition,
required the petitioner to approach the competent authority under Section
5(2) of the 1993 Act. As noticed above, the satisfaction of the President
of India is based on the advice of the Council of Ministers. The pleadings
in the Writ Petition do not reveal, whether or not any deliberations have
been conducted either by the President of India or by the Council of
Ministers in response to the communication dated 4.4.2011 (addressed to the
President of India, by the Campaign for Judicial Accountability and
Reforms). It is also the submission of the learned counsel for the
petitioner, that the petitioner has not been informed about the outcome of
the communication dated 4.4.2011.
7. In the peculiar facts noticed hereinabove, we are satisfied, that the
instant Writ Petition deserves to be disposed of by requesting the
competent authority to take a decision on the communication dated 4.4.2011
(addressed by the Campaign for Judicial Accountability and Reforms, to the
President of India). If the allegations, in the aforesaid determination,
are found to be unworthy of any further action, the petitioner shall be
informed accordingly. Alternatively, the President of India, based on the
advice of the Council of Ministers, may proceed with the matter in
accordance with the mandate of Section 5(2) of the 1993 Act.
8. Disposed of in the abovesaid terms.
…………………………….J.
(B.S. Chauhan)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
May 10, 2012.
HS
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