writ to larger benches
That on earlier at least two occasion the unlawful conviction under Contempt jurisdiction by this Hon’ble Court are quashed and set aside by larger Benches in Writ Petition. [ M. S. Ahlawat Vs. State of Haryana (2000) 1 SCC 278, Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409] 13.14. That in In Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209 it is ruled as under; “39. NHRC was constituted under Section 3 of the 1993 Act for better protection of human rights. The term “human rights” as defined in Section 2(d) of the 1993 Act reads as follows: “2. (1)(d) ‘human rights’ means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India;” 46. The jurisdiction of NHRC thus stands enlarged by Section 12(j) of the 1993 Act to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he is entitled, whether by a private party, a public institution, the Government or even the courts of law. We are of the opinion that if a person is entitled to benefit under a particular law, and benefits under that 90 law have been denied to him, it will amount to a violation of his human rights. 47. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislations of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to the rule of law put into force mechanisms for their enforcement and protection. 48. Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as UDHR) adopted by the General Assembly of the United Nations on 10-12- 1948 recognises and requires the observance of certain universal rights, articulated therein, to be human rights, and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term “human rights” itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein. 49. Possibly considering the wide sweep of such basic rights, the definition of “human rights” in the 1993 Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human 91 rights and NHRC has the jurisdiction to intervene for protecting it. 50. The contrary finding in the judgment under review about the absence of jurisdiction of NHRC to make some recommendations to the Governor is thus vitiated by errors apparent on the face of the record. Of course, NHRC cannot intervene in proceeding pending in court without its approval [Section 12(b)] as it is assumed that the court will remedy any case of violation of human rights. The assumption in the judgment under review that there can be no violation of a person's human rights by a judgment of this Court is possibly not correct. 51. This Court in exercise of its appellate jurisdiction has to deal with many judgments of the High Courts and the Tribunals in which the High Courts or the Tribunals, on an erroneous perception of facts and law, have rendered decisions in breach of human rights of the parties and this Court corrects such errors in those judgments. The instances of this Court's judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen. 52. We can remind ourselves of the majority decision of the Constitution Bench of this Court in ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521] . The majority opinion was that in view of the Presidential Order dated 27-6-1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention (Maintenance of Internal Security Act of 1971), on the ground that the order is illegal or mala fide or not in compliance with the Act (see SCC paras 78 and 136 of the Report). 92 53. The lone dissenting voice of Khanna, J. in ADM, Jabalpur case [(1976) 2 SCC 521] interpreted the legal position differently by inter alia holding: (SCC p. 777, para 593) “593. (8) Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential Order in question.” 54. There is no doubt that the majority judgment of this Court in ADM, Jabalpur case [(1976) 2 SCC 521] violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachaliah in the Khanna Memorial Lecture delivered on 25-2- 2009, observed that the same be “confined to the dustbin of history”. The learned Chief Justice equated Khanna, J.'s dissent with the celebrated dissent of Lord Atkin in Liversidge v. Anderson [1942 AC 206 : (1941) 3 All ER 338 (HL)] . In fact the dissent of Khanna, J. became the law of the land when, by virtue of the Forty-Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during Emergency. 76. For the reasons discussed above and considering the aforesaid legal issues, this Court concludes as follows: 77. The review petition is allowed to the extent indicated hereinabove. The parties are left to bear their own costs.”