Thursday, October 16, 2008

Human Rights in Madras High Court

1. Human rights, as being fundamental to life and civil liberties, as guaranteed through Constitution and other laws, when put through the prism of Court machinery obtain a refraction of diverse hues of reliefs for different categories of persons. The scenario unfolds poignantly more in the context of denial of rights and liberties than their positive assertions. The courts, they are, who invariably play the vital link between rights and their enforcement. If we have come by a situation in Tamil Nadu where human rights transgressions are not alarmingly high but minimal, if we may say modestly, we need to deduce that it is in no small measure due to the role of our courts, more particularly the Madras High Court.
2. The triad of fundamental freedoms of expression, movement and association found the first affirmation in A.K.Gopalan
[1] and V.G.Row, the names that are etched into constitutional history via the Madras High Court. His challenge to preventive detention law only partially succeeded when the Supreme Court[2] ruled that detention law was part of law established under the constitution and hence the reasonable restriction to freedom of movement under Art 19 was satisfied so long as there was a law to deny the freedom. The unanimous opinion was however that the provisions of section 14 of the impugned Act in so far as it prohibited the disclosure of the grounds contravened the requirements of Art 22(5) and hence invalid. A.K.Gopalan was not to rest with order of detention when he challenged the detention on the ground that the period of detention had not been indicated and consequently was ordered to be released on 19.5.50. Just a few days earlier, the Supreme Court had handed down the judgment upholding the Preventive Detention Law and A.K.Gopalan was arrested when he barely came out of the Court to go to meet with his lawyer. This was again challenged by yet another petition for Habeas Corpus. A Division bench held that the order of arrest was being made only to flout the earlier order of release made by the Court. The decision reported In re A.K.Gopalan[3] was a telling reminder to the establishment that mala fides in action in administering the order of detention would be subject to judicial review, when it held the order of detention to be vitiated. In the first order was Gopalan's plea for his freedom of expression and the second order was his right to freedom of movement which was sought to be curtailed by an order of detention. The third ruling relating to freedom of association came too soon through the Full Bench decision of the Court in V.G.Row v State of Madras[4]. The declaration of People’s Education Society as an unlawful association under the provisions of the Criminal Law Amendment Act was challenged by the General Secretary who was also a Barrister at Law. The court inter alia held that the inadequacy of publication of the notification, the omission to fix a time limit for the government to send the papers to the Advisory Board or for Board to make its report, the denial to the aggrieved person of the right to appear in person or through counsel before the Board were features which rendered the Amendment Act unconstitutional. This view was approved by the Supreme Court in the State of Madras v V.G. Row[5].
3. Temple entry of Harijans was an important landmark in the human rights dossier. Social activists like Vaidyanatha Iyer and E.V.Ramasamy had distinct roles to play in breaking the scourge of untouchability and recognise the right of Harijans to enter into temples. A denomination of temple at the shrine of Sri Krishna in Udipi administered by His Holiness Sri Viswothama Thirtha Swamiar of Sode Mutt, Udipi pleaded that the constitutional guarantees as religious denomination
[6] gave it the power to administer and manage its own affairs, which out-rode the provisions of Madras Temple Entry Authorisation Act 5 of 1947 and hence would not fetter its right to prevent anyone community of persons from entering upon the temple. The Division Bench rejected the plea in its decision reported in 1956 1 MLJ 125 when it said,
“By reading Articles 25 and 26 of the Constitution together a question of temple entry is not involved in Article 25(b), but it is considered only in Article 25(2)(b) which was an exception to Article 25(1) which guarantees the right to any citizen freely to profess, practise and propagate his religion. This freedom of practising religion can be restricted by the Legislature when it infringes the rights of all classes of Hindus to worship freely in a Hindu Religious Institutions of a public character. The power of the State to make a law for throwing open Hindu religious institutions of a public character as contemplated in Article 25(2) (b) of the Constitution is not in any way circumscribed, restricted or whittled down by the provisions of Article 26(b) giving a religious denomination the right to manage its own affairs in matters of religion. The prohibition of untouchables from entering into a denominational temples is not a right of that denomination to manage its own affairs in matters of religion.”
A recent decision of the Division Bench in Thol Thirumavalavan v Commissioner HR & CE
[7] quashed the direction of the Executive Magistrate ordering of closure of a Mariamman temple near Salem town purporting to maintain law and order when the entry of SC/ST was sought to be prevented by the management of the temple and the Court referring to the provision of Tamil Nadu Entry Abolition Act 1947 directed the authorities to open the temple and give protection to worship particularly persons belonging to SC/ST,.
4. The Protection to Scheduled Castes/Scheduled Tribes by enacting S.C. & S.T. (Prevention of Atrocities) Act was tested for its potency by the High Court, not through its prerogative writs, but under an expansive interpretation of Section 482 Cr.P.C. In a string of decisions starting with Mariammal v State of Tamil Nadu and others
[8] that awarded compensation of Rs.1.5 lacs to the victims family for death in custody to C.Vijaya v State of Tamil Nadu and others[9] and In Alagarsamy v State of Tamil Nadu[10], the Court had in each case directed further investigations to be made and fresh charge sheets to be laid apart from registering the cases merely under the provisions of the Indian Penal Code by reminding the Magistrates that after perusal of the police report, if they find that there are sufficient materials available on record for the offence committed under the SC & ST Act, they shall commit the same to Special Courts to have trial for the offences under the IPC and for offences under the SC & ST Act.
5. It is not merely a dignity of a person in life that would call for protection of human rights, but there shall be a dignity also in death. So holding, the Division bench held that there can be no declaration before the Civil Court that anyone community was exclusively entitled to use any particular piece of property for burial and cremation and for permanent injunction restraining the persons belonging to Schedule Castes from using the property for that purpose. The Bench ruled in Souriar and others v N.Shanmugasundaram Pillai and another
[11] that “Section 4(iv) of the Untouchability (Offences) Act read with Sections 13 and 16 thereof leaves no room for doubt that no injunction could be given in such matters.” This decision paved way for a summary rejection of a plaint in a ruling under Article 227 of the Constitution, when the suit was merely at the stage of issuance of summons when the High Court in Rajendran v [12] , where the Court held that institution of suit to prohibit Harijans from taking their dead bodies in a particular way amounted to practicing untouchability banished under Article 17 of the Constitution and threw out the plaint, even before calling upon the defendant to file a written statement.
The claim of a poor person to secure the body of his son who was a labourer in a rubber plantation in Malaysia was upheld by a direction of the Madurai Bench of Madras High Court in S.Sethu Raja v Chief Secretary, Government of Tamil Nadu and others
[13]. The High Court had directed the Indian Embassy at Malaysia to intercede to secure the body from the mortuary and arrange for dispatch to India at the cost of the government. The Court said that the provisions of International conventions which elucidate and effectuate fundamental rights could be relied upon by the Courts in all their facets and could be enforced as such. It went on to observe that the right to life guaranteed under Article 21 of the Constitution includes the right to live with human dignity and the same should also be extended to a person who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such humanity.
6. On an occasion of an en mass detention of thousands of political activists, right to liberty cannot be whittled on issues of procedure and the latter shall be subsumed in the norms of substantive justice. In G.K.Moopanar v State of Tamil Nadu
[14] a Division Bench of the Court said that it would not be necessary to file individual bail applications for thousands of persons belonging to a political party when they were taken into custody alleging unlawful assembly. The Court set them at liberty on a writ petition filed under Article 226 of the Constitution as Public interest litigation. It said that the existence of an alternative remedy by means of bail applications did not take away the jurisdiction of the Court in an extraordinary situation where thousands of persons had been kept in confinement and adverting to Section 57, 167(1) and 167(2) of the Criminal procedure Code, the Bench reminded that it was the duty of a Magistrate while remanding persons to custody or extending remand to be satisfied that there are sufficient materials before him for exercising such a power. The court found that there was no justification for keeping the other accused in custody after having released the leaders of the agitation and it really amounted to hostile discrimination under Article 14 of the Constitution. Holding that courts should not mechanically pass orders of remand without verifying the entries in the diaries and satisfying themselves about the real necessity for such remand or extension of remand, the court while entertaining writ petitions for habeas corpus had laid down the safeguards to be followed in Elumalai v State of Tamil Nadu[15].
7. Can a person accused of an offence under the provisions of Prevention of Terrorism Act be released on bail within one year of detention? This question that fell for consideration in the case of P. Nedumaran v State
[16] was that subsections (6) and (7) of Section 49 are a departure from the normal rule of presumption of innocence in favour of the accused and that bail applications could be entertained even before expiry of one year and in such cases the accused will have to prove that there is a prima facie case for acquittal instead of showing that there is no prima facie against him for conviction.
8. Prisoners’ rights have obtained systematic consideration by the High Court in various dimensions. M.Karunanidhi and others v State of Tamil Nadu
[17] had struck down the proviso to Rule 541(1) that in respect of an accused and under-trial prisoners under T.A.D.A. Act, only legal adviser and close relatives shall be allowed to interview them. It excluded a person claiming to be a friend or other relative who was not a spouse or a sibling or a son or daughter of the detenu from interviewing the person. This provision was sought to be resurrected by fresh amendment to the prison rules during the rule under the stewardship of the very same person as a Chef Minister of the State who was instrumental for the decision and it was again struck down in Nedumaran v State[18].
9. The provisions relating to termination of pregnancy under the Medical Termination of Pregnancy Act obtained a rare show of touching concern for pro life and primacy to patient autonomy, when a girl aged 15 years opted to retain the foetus in spite of the father who was a guardian sought for medical termination of pregnancy in V.Krishnan v V.Rajan
[19] . The Division Bench has discussed the abortion issue from the view point of Christianity, Islam and Hinduism. Incidentally, but more importantly, considered this right as upholding the woman’s autonomy over her body even during her minority. In this case, the fundamental right of a sixteen year old girl to keep the child in her womb until safe delivery was seen in the context of a request of the guardian father (mother having died in the infancy of the girl) to secure medical termination of the pregnancy on the ground that teenage pregnancy will lead to complications. The court found that the girl was fully aware of the consequences of pregnancy and child birth and she was categorical that the pregnancy should not be disturbed. The court on an analysis of the medical termination of Pregnancy Act held:
“The entire scheme of the Act shows that the provisions thereof can be invoked only by the pregnant woman. If she happens to be a minor, the registered medical practitioner, who is approached for terminating the pregnancy, must take care to get the consent of the guardian of the minor in writing. Sub.s.(4) (a) can never be understood as dispensing with the consent of the pregnant woman if she is below 18 years of age. The provision is only intended to help the registered medical practitioner to take into account all the relevant facts and circumstances as set out in S.3 so as to decide whether the continuance of the pregnancy will involve any of the risks mentioned in the Section”.
10. But, see how the pendulum swung back to give the primacy of decision making for the guardian of a ward. A child’s right to be imparted education in a language of its choice could not be taken away by the State, said the High Court, by compelling the person to be educated only in the mother tongue for, that meant interfering with a guardian’s right to decide what was appropriate for his child. The Full Bench of the Court was striking down G.O.Ms.No.324 issued by the Government in Tamil Nadu Tamil and English Schools Association, Madras v State of Tamil Nadu
[20] prescribing that Tamil or mother tongue shall alone be the compulsory medium of instruction and termed the G.O. as irrational and arbitrary and thus violative of Article 14 of the Constitution of India.
11. The decision in Ramachandran v The Inspector of Police
[21] ruled that a juvenile cannot be a ‘Goonda’ to be taken in preventive detention. This proposition was taken to its logical extension in Minor Prabhakaran represented by maternal aunt Nagammal v State of Tamil Nadu[22] when the court said that the non-obtante clause under TADA could not operate to eclipse the applicability of Juvenile Justice Act for a person who was aged 15 and to be visited with notice of detention under the former Act. The court said that provisions of the Juvenile Justice Act over-rode TADA, and it was a functional imperative to make way for such an interpretation, whenever the issue concerned the case of a juvenile , ‘to avoid absurdity and injustice by judicial servitude to interpretative literality’.
12. The court responded to the anguished cry of a woman who had been deprived of her liberty by an illegal arrest and detention and was subsequently dispossessed from the house in which she had been residing. In Meera Nireshwalia v State of Tamil Nadu & others
[23], the court held :
“A writ court’s jurisdiction in these matters is more ex debito justitiae than as a rule of law as courts as sentinels of the peoples’ rights, cannot close their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to obey, observe and follow law, decide to violate it’.
The court directed an inquiry to be instituted into the conduct of the police officers and also directed the estranged husband to provide alternative accommodation to the petitioner. Again, the Court sounded with unique passion a stiff warning against the establishment of law enforcers for the cause of the so called mentally ill persons, when it was dealing with a haebes corpus petition in Nethalie Vanderbyranghe v State of Tamil Nadu
[24], a French tourist in India who had been rounded up by the police along with 100 and odd other persons as ‘mentally ill’, certificates were obtained from doctors on perfunctory or nil medical examination, and after securing reception orders from judicial magistrate who passed such orders mechanically, lodged them all in a mental hospital. After directing the detenu to be set at liberty, the court asked:
“Mentally ill persons are not criminals; they have not committed any offence. Thus, is it necessary for their protection that action should commence with a first information report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a police complaint”.
13. The ambit of Section 17 of the Protection of Women from Domestic Violence Act, 2005 was examined by the court in Vandana v T. Srikanth
[25]. The Act being relatively new, a narrow interpretation of the provisions would defeat the object of the Act. By a proactive interpretation, the Court held that it is not necessary for a woman to establish her physical act of living in the shared household either at the time of institution of the proceedings or in the past. As long as there is a domestic relationship, there is a deemed right to live in that house and such a household becomes a shared household and a relief of injunction not to disturb her right of entry.
A right to maintenance claimed under section 20 of the Act was maintainable, said the decision in M.Palani v Meenakshi
[26] on the basis of a “domestic relationship” established through consensual sex. It said, referring to the definition 2(f),
“The above referred provision makes it clear that any woman who is or has been in a domestic relationship with the respondent can make a complaint under the provisions of the said Act. Further the "domestic relationship" thus defined as a relationship between two persons, who live or have, at any point of time, lived together. The provision does not say that they should have lived together for a particular period.”
It said that the Family Court’s power to award maintenance existed independently of any report or intervention of Protection Officer.
14. The law against disability discrimination obtained a liberal interpretation through the decision in Muthu v Tamil Nadu State Transport Corporation
[27] where the Court said that the term ‘disability’ used in Section 47 could draw support not only in respect of the definition ‘disablities’ as contained in Section 2(i) of the Act, but will encompass such other disabilities which disable a person from performing the work which he held immediately, prior to acquisition of such disability and thereby entitled him to avail the benefits conferred under the said provision for having acquired such a disability. Responding to a prayer against the government and HR & CE Department to make facilities for persons with loco-motor disabilities to access places of worship, viz., temples in Tamil Nadu by appropriate infrastructure in Meenakshi and another v State of Tamil Nadu and another[28], the Commissioner of the department issued circulars to all the subordinates to provide wheel chairs to physically disabled devotees with an attender and give priority for darshan.
15. The increasing tendency to convert civil disputes in to criminal cases to harass and embarrass debtors in difficulties and particularly of financial institutions’ and banks’ attempts to arm-twist debtors to obtain unfair bargain came for severe flak from the High Court In P.Ashok Kumar v Inspector of Police (Crimes)
[29] . The Court adversely commented on bank's role as modernised version of Shylock by resorting to complaints through police resulting in direction for further investigation through Magistrates and causing their arrest in the course of such investigation. The Court said,
"Even before talking about the approach of the police, judicial propriety demands that this Court should initiate suitable action against those judicial officers, but (who) knowingly collude with the complainant/banks to grant such orders. “
The Court did not leave the matter without directing the Registrar, Vigilance to collect statistics regarding private complaints regarding credit cards, personal loans, housing loans, higher purchase loans, default in payment of installments, complaints under Section 138 NI Act etc., which involved disputes purely of civil nature, where arrests and investigation by police were ordered under Section 156 (iii) Cr.P.C. by judicial magistrates all over Tamil Nadu.
16. The right to claim compensation against the state for custodial violence and for victims in criminal cases is firmly established now. Not limiting it to State’s vicarious liability for actions of its subordinates but also for failure to protect law and order, the new approach marks the paradigm shift, as reflected in the judgment in K. Venkataraman and another v State of Tamil Nadu & others
[30]. The court was dealing with a writ petition for compensation filed by two advocates whose property had been destroyed by a riotous mob. The mob that was protesting against the inaction of the police in failing to arrest the accused in a murder case attacked the house of the petitioners as the first petitioner had appeared in other cases as counsel for the suspects. Holding that compensation could be claimed under Article 226 even for loss of property, the court held that where the damage caused was not on account of any positive action taken by the State while maintaining law and order but on account of culpable inaction on the part of the police in not taking adequate safety measures, the doctrine of exercise of sovereign power was not applicable and the State was liable to pay compensation to the victim. The court observed that the deletion of the article relating to fundamental right to property made no difference as the right to property was constitutional right under Article 300A. The Division Bench in this case was reiterating the law set out by another Judge of the court in R. Gandhi and others v Union of India & another[31] where compensation was directed to be paid for damage to property of Sikh community in the violence that rocked Coimbatore after the assassination of Smt. Indira Gandhi.
Do not assume that in a criminal case only the person found guilty could be directed to give compensation. A bid to quell communal frenzy in a southern district of Tamil Nadu by Police failed when the mob out-numbered the police. In the orgy of violence and mayhem, a police constable on duty was killed. The criminal case against the village leaders who took active part in the mob violence were acquitted in appeal by the Madurai bench of the Madras High Court in Vijayan and others v State of Tamil Nadu
[32], but the court in novel but admirable gesture in its judgment pleaded for payment of compensation of Rs.1,00,000 to be paid to the victim’s family by the village community as a whole through their village leader.
17. The bar members have also played significant role in protecting the human rights causes. A large group of lawyers had sought for cancellation of bail that had been granted in an appeal against conviction for murder of dalits in caste rivalry but the High Court had originally rejected the right of lawyer to approach the Court for cancellation of bail in public interest. The Supreme Court intervened to hold in P.Ratnam v State
[33] that the High Court had suo motu power to cancel bail and cause arrest that had earlier been released on bail and such a power should have been exercised when the lawyers had sought for cancellation of bail. Chandru v State of Tamil Nadu[34] came close on heels to Olga Tellis dispensation of the Supreme Court providing for alternative accommodation for pavement dwellers but the former went a step more in quoting the Slum clearance’ own motto, God revealeth in the smile of the poor and exhorting the Slum Clearance Board to implement the scheme of providing housing to the displaced pavement dwellers.
18. There is nothing to be alarmed about the fact that human rights issues are talked about mostly by political dissenters, extremists’ groups, social non-conformists, weaklings, goondas and the most disadvantaged. Democracy is strong when dissent is not merely tolerated but respected. Equality is better ensured when the less endowed is not slighted but allowed to grow. Quality of life is more meaningful when the worst criminal is recognised as a worthy son of god waiting to be reformed. Human rights protected through court process by the administration of rule of law are the surest gift to universal brotherhood and prosperity.

[1] The irrepressible communist leader met with conviction for denouncing the police as "good for nothing persons and idiots" under the Police (Incitement to Disaffection) Act 1922, (1947)2 MLJ 376. On 23rd April 1948 he was detained by an Order of the District Magistrate, Malabar, purporting to be under 8. 2 (l) (a), Madras Maintenance of Public Order Act, 1947 (Madras Act I ] of 1947) in the Vellore Central Jail. The Order under Section 3 (l) (a) of Madras Act I [1] of 1947 had been passed by the District Magistrate on his alleged satisfaction that the detention of A. K. Gopalan was necessary for the maintenance of law and Order and Publics safety. At that time, he was already serving a sentence for the criminal case referred to above and hence the Madras High Court said in its decision dated 18.11.1948 (1949 Crl LJ 843) that the detention was illegal. He had brought another complaint that while he was under detention, the police was standing close to his lawyer, when he was giving him instructions. The High court said that Gopalan’s privacy was breached and ruled that a police officer could not be in the vicinity (AIR 1950 Mad 259).
[2] AIR1950SC27, 1950CriLJ1383, (1950)IIMLJ42(SC), [1950]1SCR88
[3] 1952 II MLJ 690
[4] AIR 1951 Madras 147
[5] AIR 1952 SC 196
[6] Commissioner, Hindu Religious Endowments vs. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt AIR 1954 SC 282 guaranteed the denominational status to the temple. This decision affirmed the decision of the Madras High Court in Lakshmindra Theertha Swamiar vs. Commissioner, H.R. & C.E AIR 1952 Madras 613
[7] 2008 (3) TNLJ 545
[8] 1998 1 LW Crl.285)
[9] 1999 2 LW Crl.719
[10] 1999 3 CTC 464
[11] 1972 (2) MLJ 62
[13] 2007 (5) MLJ 404
[14] 1990 1 MLJ Criminal.228
[15] 1983 Law Weekly ( Crl) 121
[16] (2003) I MLJ (Crl) 332.
[17] 1995 MLJ Crl. 1
[18] 2001 4 CTC 549
[19] 1994 1 MLJ Cri.731
[20] 2000(2) MLJ 575
[21] 1994 Crl.L.J.3722
[22] WP 4511/2003 Manu TN/0347/2003
[23] 1990 WLR 313
[24] HCP 1041/2008 decided on 19.9.2008
[25] (2007) 6 MLJ 205
[26] AIR 2008 Mad 162
[27] 2006 (5) CTC 413
[28] W.P.7027 of 2006 decided on 7.7.2006
[29] 2008 2 TNLJ 235
[30] (2007) 2 MLJ 804
[31] AIR 1989 Mad 205
[32] (2008) 3 MLJ (CRL) 98
[33] 2000 (2) SCC 391
[34] (1985) 3 SCC 253

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