Hearing a writ petition against an order of the National Human Rights Commission (NHRC) on madrasas, a Division Bench of the Allahabad High Court saw one judge disagreeing with the other over certain observations and passing separate orders. While Justice Atul Sreedharan expressed serious concern over the NHRC not taking up matters like “atrocities by vigilantes and lynching of Muslims”, Justice Vivek Saran disagreed and said adverse observations were not required when there was no one to represent the commission.
The bench was hearing a writ petition filed by the Teachers’ Association Madaris Arabia and others challenging the NHRC order. The judges, however, were in agreement on the adjournment sought by the petitioner’s counsel.
As mentioned in Justice Sreedharan’s order, a complaint was filed before the NHRC alleging that 588 madrasas, running in collusion with officers in the Minority Welfare Department, receive government grants while not meeting any standards and lacking basic education infrastructure such as buildings, furniture, hostels, etc.
It further alleged that uneducated teachers are recruited through bribes, and sought the NHRC’s intervention.
The order stated that the complaint was sent to the Director General, Economic Offences Wing, UP government with a direction by the NHRC to enquire into the allegations and submit an action-taken report.
What Justice Sreedharan said
The order observed that the court, prima facie, is astounded by the order passed by the NHRC. “Powers of the NHRC, and its ambit and scope of application, arise from the Protection of Human Rights Act, 1993,” it said.
It said that under Section 2(1)(d) of the Act, human rights are defined as rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution or embodied in international covenants, and enforceable by courts of India.
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Questioning the NHRC’s decision in response to the madrasa complaint, Justice Sreedharan observed in his order that it’s “surprising” that the Human Rights Commissions in the country are trying to indulge in matters “which should otherwise have been agitated before the High Court under Article 226 by way of a PIL, if need be, for appropriate orders”.
He further observed, “Instead of taking suo motu cognisance in which members of the Muslim community are attacked and at times lynched in some cases, and where cases are not registered against perpetrators or not investigated properly, Human Rights Commissions are seen dabbling in matters that prima facie do not concern them.”
“This Court is not aware of the NHRC taking suo motu cognizance in situations where vigilantes take the law in their own hands and harass ordinary citizens of this country, or harass individuals on account of the nature of the relationship between persons of different communities, or where even having a cup of coffee at a public place with the person of different religion becomes a fearful act,” Justice Sreedharan observed.
He added that no instance has been placed in court of the State Human Rights Commission or NHRC taking suo motu cognizance of such cases. “But instead, it has the time to entertain matters which would fall within the precincts of the High Court under Article 226 and which could effectively render justice,” Justice Sreedharan observed.
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It also observed that human rights commissions are empowered to take cognizance only in case of human rights violations as defined in the Statute. The NHRC and SHRC must realise “that they are not a tribunal under the law which can try cases”, Justice Sreedharan observed.
He observed that if the Human Rights Commission feels it must intervene in a particular case “to protect human rights of citizens of this Country as defined in Section 2(1)(d)”, it can “become a complainant before a court of competent jurisdiction by filing a complaint, if they so desire, or get an FIR registered as a complainant where the victim is unable to do so”.
But in a case where human rights are not involved, Justice Sreedharan observed that prima facie, “… this Court has a doubt whether such direction can be passed to officers of the executive to act in a particular manner…”
Justice Sreedharan stated in the order that under the circumstances, “the manner in which the NHRC has gone ahead and accepted the complaint in a case where prima facie there was no human right involved, the adjournment sought by the counsel for the petitioner is granted”.
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Listing the case for May 11, he directed that a notice be issued to the NHRC to appear before the court through its counsel and file a response in this case.
What Justice Saran said
Justice Saran, in a separate order, stated, “I had the opportunity to go through the order dictated by brother Justice Atul Sreedharan on April 27. The order was dictated when the petitioner’s counsel had asked for an adjournment while making a mention. The petitioner, definitely, was not arguing the case. There was no representation of the… NHRC. However, I am in agreement with the adjournment being allowed.”
He stated, “I am strictly of the opinion that if any order touching on the merits of the case or even touching on the role of the NHRC had to be passed, then all parties concerned ought to have been heard.”
He further stated, “I am also conscious of the fact that a writ court can pass an order even in the absence of any particular party… However, in the instant case, when… certain definite observations were being made, then it would have been in the fitness of things that parties were properly represented in Court. In the absence of the parties, no adverse observations were required.”
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“Since various facts have been mentioned in paragraph nos. 6 and 7, with which I do not agree, I differ from the order… dictated by brother Justice Atul Sreedharan,” he stated.
