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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (C)     NO.     35     OF     2012   

Common Cause …. Petitioner

Versus

Union of India & Ors. …. Respondents

J     U     D     G     M     E     N     T   

JAGDISH     SINGH     KHEHAR,     J  .

1. Through the instant Writ 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 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  

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.  

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Justice K.G. Balakrishnan, ex-Chief Justice of India, under Section 5 of the  

1993 Act.

2. It is pointed out, that even though a period of more than 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 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 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 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 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  

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declaration of assets by Judges of this Court ; fourthly, resisting attempts  

to stop the elevation of Justice P.D. 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 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 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.

4. Section 5 of the 1993 Act is being extracted hereinbelow:-

“5. Resignation and removal of Chairperson and Members

(1) The Chairperson or any Member may, by notice in  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 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 the Member, as  the case may be, ought on any such ground to be  removed.

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(3) Notwithstanding anything in sub-section (2), the  President, may, by order, remove from office the  Chairperson or any other Member if the Chairperson or  such other Member, as the case may be, -  

(a) is adjudged an insolvent; or (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 infirmity  

of mind or body; or (d) is of unsound mind and stands so declared 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.”

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 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 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.

5. The facts narrated in the pleadings of the instant case and the  

submissions made by the learned counsel appearing on behalf of the  

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petitioner reveal, that a series of allegations have been levelled against the  

Chairman of the Commission, in the communication addressed by  

Campaign for Judicial 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 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 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.  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 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  

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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.

8. Disposed of in the abovesaid terms.

…………………………….J. (B.S. Chauhan)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; May 10, 2012.

HS

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