Rajesh Das, I.P.S. v Tamil Nadu State Human Rights Commission (2010)

Every student can say that the recommendations of a human rights commission are not binding. Very few can say what follows from that, and this is the case that spells it out, in seven numbered propositions, and is then contradicted by another Judge of the same High Court, so that the point stands referred to a larger Bench.

That makes it doubly useful. It gives you the settled content of section 18 and it gives you a live controversy, which is exactly what a question asking whether the commissions are effective is looking for.

Section 18 sets out the steps the Commission may take on completing an inquiry. Where the inquiry discloses the commission of a violation of human rights, or negligence in the prevention of a violation, by a public servant, the Commission may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as it may deem fit; it may approach the Supreme Court or the High Court concerned for such directions, orders or writs as that court may deem necessary; and it may recommend the grant of immediate interim relief to the victim or the members of his family. It provides the report to the petitioner, sends the report and its recommendations to the Government, which must within one month or such further time as the Commission allows forward its comments including the action taken or proposed, and it publishes the report with those comments.

Section 28(2) completes the design: the Government must lay the Commission's annual and special reports before the legislature together with a memorandum of the action taken or proposed and the reasons for non-acceptance of the recommendations, if any.

So the Act's whole enforcement mechanism is: recommend, publish, and require the Government to explain itself in public. It never says order.

The Court summarised the law relating to the recommendations of human rights commissions as follows.

1. What is made under section 18 by a State Human Rights Commission is only a recommendation; it is neither an order nor an adjudication.
2. Such a recommendation is not binding on the parties to the proceeding, including the Government.
3. But the Government has an obligation to consider the recommendation and to act upon it so as to take forward the objects of the Act, the International Covenants and Conventions, against the background of the fundamental rights guaranteed by the Constitution, within a reasonable time.
4. If the Government tentatively decides to accept a recommendation holding a public servant guilty of a human rights violation, it must furnish a copy of the Commission's report to that public servant, call upon him to make his explanation, and then pass an appropriate order accepting or rejecting the recommendation.
5. Until the Government passes its final order, neither the complainant nor the respondent can challenge the recommendation, as a challenge would be premature except in exceptional circumstances.
6. If, on the recommendation, the Government decides to launch a prosecution, it must order an investigation by the police, culminating in a final report under section 173 of the Code of Criminal Procedure.
7. If the Government decides to pay compensation to the victim, it may do so; but if it proposes to recover that amount from the public servant concerned, it can do so only by initiating appropriate disciplinary proceedings against him under the relevant service rules, if those rules so empower it.

Proposition 3 is the one that repays thought. The recommendation is not binding, but it is not nothing: it generates a duty to consider and to decide within a reasonable time. That is a familiar administrative law consequence, and it means that inaction on a recommendation is itself reviewable, even though the recommendation is not enforceable.

Another single Bench of the same High Court, in a writ petition decided on 29 September 2010, declined to accept propositions 4 and 5. Its objection was practical and is quoted here because it is a good argument stated bluntly: "If Rajesh Das's case is accepted, then it will become a paradise of remedies for the delinquent Government servant not once, but three times." The three occasions would be before the Commission, then before the State Government which had accepted the Commission's report, and then again before any amount were recovered following that acceptance. Neither the Act nor the service rules contemplates such multiple opportunities for a person who has violated the law with impunity; and the officer cannot say he was denied a hearing, having had a full opportunity of placing his case before the Commission, which is itself a statutory body mandated to protect human rights.

Because two single Judges of the same High Court differed, the question was referred to a larger Bench and remained pending.