When the lapse in the law becomes the defense for judiciary: SC on the petition to inquire into allegations against the chairman of NHRC

The law prescribes a procedure, I follow it but when the procedure is defective to bring justice what shall I do. Approach the court would be the immediate answer. The petitioner in Common Cause v. Union of India, Writ Petition (C) No. 35 of 2012, decided by the SC on 10the May, 2012 prayed for a writ of mandamus to direct the President of India to refer the complaints against the Chairman, NHRC for inquiry on which she has been sleeping over for more than a year. The connivance of the executive need not be specifically stated as the President assumes and court observes that she has to act according to aid and advice of the executive.

The complaint authority sure is the President of India but what is the solution when the President keeps quiet despite such complaints, especially when the complaint procedure does not prescribe time limit for taking actions. The court gets an immediate way out in the relief prayed for, we cannot direct the President as Section 5 (2) of the Act speaks about satisfaction of the President to initiate inquiry and courts can not interfere. The court responded in the following way:

"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 … 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."

Section 5 (2) does not make any timeline of action as in so many other legislations. A convenient way out for the executive when does not wish to act on issues that might be inconvenient. This is one issue to be flagged. True, court has not much role here than to point out the lacunae, else, there would be uproar against judicial legislation. It is another fact that the bench ignored this anomaly in law to be highlighted.

Next is an issue of constitutional importance. Is there anything the law prescribes about the satisfaction of the President, if so, is the satisfaction solely bound by the will of the executive.

Here is the reading of Section 5 (2)

"the Chairperson or any other Member of the Commission shall only be removed from his office by order of the President 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 such other Member, as the case may be, ought on any such ground to be removed."

The provision does not seem to give power to the President to withhold reference to the SC. It may be convincingly argued that the position of the President is not to act as a mere clearing and forwarding centre that it mindlessly forward all such complaints to the SC but is a well thought after filter mechanism.  The observation made by the court that "the satisfaction of the President of India is based on the advice of the Council of Ministers" raises a further issue. Is the President bound by the advice and have to wait ad infinitum for a nod? Two issues; first, totally basing the action of the president on the advice of the executive is concentration of power, the appointing authority being the executive seldom there is a chance that it may refer the matter for inquiry unless there is a change of government. Second, the President then is not a filtering mechanism but an extension of the executive without any real power.

Therefore in the context of issues arose it will be beneficial that section 5 (2) is amended to figure-in timeline for action on the complaints and to clarify that the President's action is not solely dependent on the advice of the cabinet but it is a power vested in the office to be exercised conjointly with the executive with clear mandate with the President to override the advice in befitting cases as the matter will anyway go under the scrutiny of the apex court of the nation. This clarification would have sounded better from the Judiciary.