LexCOMMON CAUSE versus UNION OF INDIA AND ORS.
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[2012] 4 S.C.R. 521 COMMON CAUSE v. UNION OF INDIA AND ORS. (Writ Petition (C) No. 35 of 2012) MAY 10, 2012 [DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR, JJ.] A B 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. F Disposing of the writ petition, the Court 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 s
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