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A Public Interest Litigation has been filed by the NGO, Common Cause in the Supreme Court of India seeking the initiation of an inquriy into several allegations made against ex-Chief Justice of India and current Chairperson of the National Human Rights Commission (NHRC), Justice KG Balakrishnan. This is the second attempt made by Common Cause to initiate proceedings against the former Chief Justice of India.
In its petition, Common Cause has not only stated that there is “overwhelming evidence” indicating misbehaviour on the part of Justice Balakrishnan, but also states that former top judge is guilty of amassing disproportionate assets and benami properties in the names of his relatives and associates.
In April of 2011, the Campaign for Judicial Accountability and Reforms (CJAR) had made representations before the Prime Minister and the President of India to initiate steps for the removal of Justice Balakrishnan from the NHRC. Failing to evoke a response to the said communication, the petitioner had filed a petition in 2012 seeking a reference to Supreme Court under Section 5(2) of the Protection of Human Rights Act, 1993 for holding an inquiry into the allegations against Justice Balakrishnan.
“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”.
Once this order was passed, in January this year the government decided that no action could be taken since the allegations pertain to the time before Justice Balakrishnan was appointed to the NHRC. The government also placed reliance on an earlier judgment of the Supreme Court in in Krishna Swami v. Union of India and Another [1992(4) SCC 605]. According to Common Cause, this reliance is wholly untenable.
The petition states that in fact, the decision in Krishna Swami does allow for investigation into Justice Balakrishnan, observing that,
“[A]ccording to the law laid down in Krishna Swami vs Union of India and Another (supra), misbehaviour would extend to conduct of the Judge in or beyond the execution of judicial office…. even the prior conduct of a Chairperson/member of National Human Rights Commission remains germane for making a Presidential reference under Sec 5(2) , PHR Act.”
It has also submitted that the NHRC is a quasi-judicial body whose Chairperson has to be a former Chief Justice of India (CJI) and, therefore, appointment as Chairperson of the National Human Rights Commission is only an “elongation of the judicial functions of a CJI”. The petitioner further alleged that the refusal on the part of the government to initiate action against the former CJI is mala fide.
The matter is likely to be heard on August 16. Advocate Prashant Bhushan will represent the petitioner.