- (1.) THE petition raises an interesting question as to whether the petitioner has been lawfully discontinued as Member of THE Uttar Pradesh Human Rights Commission as per the provisions of THE Protection of Human Rights Act, 1993 as amended by Act No. 43 of 2006.
(2.) A State Human Rights Commission was set up in the State of Uttar Pradesh under a Notification dated 4.4.1996 of the provisions of the aforesaid Act; a copy of the said Notification constituting the State Human Rights Commission is Annexure-4 to the writ petition. The petitioner, who was undisputedly a District Judge under the Judicial Services of the State of Uttar Pradesh, was nominated and appointed as a Member of the Uttar Pradesh State Human Rights Commission under the provisions of Section 21 read with Section 22 of the Act as it stood then. The Notification to that effect was issued on 29.6.2006; a copy whereof is Annexure-1 to the writ petition. The terms of appointment of the petitioner was clearly spelled out in the said Notification and which recites that the petitioner shall continue to function, as such, from the date of taking over charge for a period of 5 years or till he attains the age of 70 years, whichever is earlier. Accordingly, the petitioner, in terms of the said provisions, was entitled to continue till 2011. The petitioner took charge on 1.7.2006 and, therefore, his tenure of 5 years would have come to an end on 30.6.2011. The petitioner continued to function, as such, when a fresh Notification impugned in the present writ petition came to be issued on 28.5.2008. According to this Notification, a copy whereof is Annexure-6, the State Human Rights Commission was reconstituted keeping in view the amendment brought about in Section 21 (2) of the Human Rights Commission Act enforced w.e.f. 23.11.2006. To appreciate the controversy which is sought to be raised in the present writ petition, it would be appropriate to quote the relevant provisions as existed before the amendment and as they stand after the amendment brought about through the amending Act No. 43 of 2006: Section-21 Act No. 1 of 1994 (as it stood on the date of appointment of the petitioner) 21. Constitution of State Human Rights Commissions.-(1) A State Government may constitute a body to be known as the..... (name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter. (2) The State Commission shall consist of- (a) a Chairperson who has been a Chief Justice of a High Court; (b) one Member who is, or has been, a Judge of a High Court; (c) one Member who is, or has been, a District Judge in that State; (d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. (3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such function of the State Commission as it may delegate to him. (4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify. (5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution: : Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter: Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures Tist II and List III in the Seventh Schedule to the Constitution", the words and figures "List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted. Amending Act 43 of 2006 (w.e.f.23.11.2006) 21. Constitution of State Human Rights Commissions.-(1) A State Government may constitute a body to be known as the...... (name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter. (2) [The State Commission shall, with effect from such date as the State Government may by notification specify, consist of- (a) a Chairperson who has been a Chief Justice of a High Court; (b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge; (c) one Member to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.] (3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him. (4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify. (5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution: Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter: Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List II and List III in the Seventh Schedule to the Constitution", the words and figures "List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted. (6) [Two or more State Governments may, with the consent of a Chairperson or Member of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if such Chairperson or Member consents to such appointment: Provided that every appointment made under this sub-section shall be made after obtaining the recommendations of the Committee referred to in sub-section (1) of Section 22 in respect of the State for which a common Chairperson or Member, or both, as the case may be, is to be appointed.] SECTION 23 Act No. 10 of 1994 23. Removal of a Member of the State Commission.-(1) Subject to the provisions of sub-section (2), the Chairperson or, any other Member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a 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 such other Member, as the case may be ought on any such ground to be removed. (2) Notwithstanding anything in sub section (1A), the President may by order remove from office the Chairperson or any [Member] if the Chairperson or such [Member] as the case may be,- (a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties:6f his offipe; 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 is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude. Amending Act 43 of 2006 23. [Resignation and Removal of Chairperson or a Member of the State Commission] [(1) The Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed to the Governor, resign his office. (1A) Subject to the provisions of sub section (2), the Chairperson or, any other Member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a 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 such Member, as the case may be, ought on any such ground to be removed.] (2) Notwithstanding anything in sub section (1), 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 outside the duties:6f his offipe; 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 is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude. SECTION 24 Act No. 10 of 1994 24. Term of office of Members of the State Commission.-(1) A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier; (2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years : Provided that no Member shall hold office after, he has attained the age of seventy years. (3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India. Amending Act 43 of 2006 24. Term of office of [Chairperson and] Members of the State Commission.-(1) Aperson appointed as Chairperson shall hold office fora term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier; (2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years: Provided that no Member shall hold office after he has attained the age of seventy years. (3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India. SECTION-26 Act No. 10 of 1994 26. Terms and conditions of service of Members of the State Commission.-The salaries and allowances payable, and other terms and conditions of service of, the Members shall be such as may be prescribed by the State Government: Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment. Amending Act 43 of 2006 26. [Terms and conditions of service of Chairperson and Members of the State Commissions. The salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be such as may be prescribed by the State Government: Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after his appointment]
(3.) ACCORDING to the amendment brought about the qualification of a Member of a State Human Rights Commission to be appointed from amongst a District Judge was altered. The earlier provision was that a Member has to be a District Judge of that State whereas the amended provision recites that the person has to be a District Judge in the State with a minimum of 7 years experience as a District Judge. The reconstitution under the Notification dated 28.5.2008 impugned in the present petition was brought about under the amended provision as a result whereof only a District Judge having an experience of 7 years as a District Judge, could have occupied office as a Member of the Commission. The aforesaid new qualification introduced through the amendment was made the basis for discontinuing the petitioner, as such, the petitioner has preferred this petition questioning the correctness of the Notifications dated 28.5.2008 (Annexures-5 and 6 to the writ petition).;