COMMON CAUSEversusUNION OF INDIA AND ORS.

                    [2012] 4 S.C.R. 521


                    COMMON CAUSE                               A
                             v.
               UNION OF INDIA AND ORS.
             (Writ Petition (C) No. 35 of 2012)

                       MAY 10, 2012
                                                               B
 [DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR,
                            JJ.]

      Protection of Human Rights Act, 1993: s.5(2) -
Procedure for removal of a Chairperson/Member of the C
Commission - Held: 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 D
on being satisfied, may require the Supreme Court to initiate
an enquiry into the a/legations u/s.5(2) of the Act - In the
instant writ petition, a series of a/legations were levelled
against the Chairman of the Commission, in the
communication addressed by Campaign for Judicial E
Accountability and Reforms, to the President of India and
Prime Minister of India, on 4.4.2011 - Prayer was made in
writ petition for the issuance of a writ in the nature of
Mandamus, requiring the President of India to make a
reference to the Supreme Court u/s.5(2) of the Act, for holding F
an enquiry against the Chairman of the Commission - The
prayer made at the hands of the petitioner was not accepted
since the first step contemplated u/s. 5(2) of the Act is the
satisfaction of the President of India - It is only upon the
satisfaction of the President based on advice of the Council G
of Ministers that a reference can be made to the Supreme
Court for holding an enquiry - The pleadings in the writ
petition did not reveal, whether or not any deliberations were
conducted either by the President of India or by the Council
                            521                                H
    522      SUPREME COURT REPORTS               [2012] 4 S.C.R.

A of Ministers in response to the communication dated
  4. 4. 2011 - In the peculiar facts, the instant writ petition is
  disposed of by requesting the competent authority to take a
  decision on the communication dated 4. 4_ 2011 - If the
  allegations, in the said determination, are found to be
B unworthy of any further action, petitioner to 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 s. 5(2) of the Act.

      The instant writ petition was filed by common cause
C wherein extensive allegations were made against the
  Chairman of the National Human Rights Commission
  (respondent no.3). The grievance of the petitioner was
  that communication dated 4.4.2011 was addressed by
  Campaign for Judicial Accountability and Reforms, to the
D President of India, requesting her to make a reference to
  the Supreme Court for holding an enquiry, to probe the
  allegations leveled against the Chairman of the
  Commission under Section 5 of the Protection of Human
  Rights Act, 1993. The petitioner did not receive any
E response to communication dated 4.4.2011 nor reference
  was made by the President to the Supreme Court under
  Section 5 of the 1993 Act.

          Disposing of the writ petition, the Court
F     HELD: 1. A perusal of Section 5(2) of the Protection
  of Human Rights Act, 1993 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
G 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
 COMMON CAUSE v. UNION OF INDIA AND ORS.                 523


decision is to be taken to hold an enquiry against an           A
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         B
enquiry into the "allegations, under Section 5(2) of the
1993 Act. [Para 4) [527-B-E]

     2. A series of allegations were levelled against the
Chairman of the Commission, in the communication
addressed by Campaign for Judicial Accountability and           C
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 was
made by the petitioner, for the issuance of a writ in the       D
nature of Mandamus, requiring the President of India to
make a reference to the Supreme Court under Section
5(2) of the 1993 Act, for holding an enquiry against
respondent No. 3, i.e., the Chairman of the Commission.
The prayer made at the hands of the petitioner cannot be        E
accepted 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. The           F
satisfaction of the President of India is based on the
advice of the Council of Ministers. The pleadings in the
writ petition did not reveal, whether or not any
deliberations were conducted either by the President of
India or by the Council of Ministers in response to the         G
communication dated 4.4.2011 (addressed to the
President of India, by the Campaign for Judicial
Accountability and Reforms). In the peculiar facts, the
instant writ petition is disposed of by requesting the
competent authority to take a decision on the                   H
    524       SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A communication dated 4.4.2011. If the allegations, in the
  said 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
8 with the matter in accordance with the mandate of Section
  5(2) of the 1993 Act. [Paras 5, 6, 7] [527-E-G; 528-A-G]

          Manohar Lal Sharma Vs. Union of India W.P. (C) No. 60
    of 2011      decided on 7.5.2012 - relied on.

C       CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
    35 of 2012.

          Under Article 32 of the Constitution of India.

          Prashant Bhushan for the Petitioner.
D
          Amarjit Singh Bedi, Bina Madhavan for the Respondents.

          The Judgment of the Court was delivered by

        JAGDISH SINGH KHEHAR, J. 1. Through the instant Writ
E 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
F 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
G 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.
H
  COMMON CAUSE v. UNION OF INDIA AND ORS.                    525
        [JAGDISH SINGH KHEHAR, J.]
     2. It is pointed out, that even though a period of more than    A
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            B
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           C
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               D
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      E
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      F
elevation of Justice P.O. 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       G
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         H
    526      SUPREME COURT REPORTS                  [2012] 4 S.C.R.

A 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.

8        4. Section 5 of the 1993 Act is being extracted
    herein below:-

          "5. Resignation and removal of Chairperson and Members

           (1)   The Chairperson or any Member may, by notice in
c                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
D                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
E                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
F                Chairperson or any other Member if the
                 Chairperson or such other Member, as the case
                 may be, -

                 (a)   is adjudged an insolvent; or
G                (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
H                      infirmity of mind or body; or
  COMMON CAUSE v. UNION OF INDIA AND ORS.                    527
        [JAGDISH SINGH KHEHAR, J.]
             (d)   is of unsound mind and stands so declared         A
                   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."
                                                                     B
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          C
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     D
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.
                                                                     E
     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
                                                                     F
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     G
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            H
    528       SUPREME COURT REPORTS                    [2012) 4 S.C.R.


A   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
B   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
C   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
D   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
E   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
F 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
G 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.
    D.G.                                   Writ Petition disposed of.
H