Dr. P. M. Kutty v. Kerala State Human Rights Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943** ## **WP(C) NO. 20950 OF 2011** ## **PETITIONER:** **DR. P. M. KUTTY, AGED 62 YEARS, RESIDING AT 'SISU', 19/448, M.N ROAD, CHALAPPURAM, COCHIN-2.** **BY ADVS. SRI. SHYAM PADMAN SMT. M. LISHA** **SRI. A. RANJITH NARAYANAN SRI. S. K. SAJU** ## **RESPONDENTS:** - **1 THE KERALA STATE HUMAN RIGHTS COMMISSION M. P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS REGISTRAR.** - **2 THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOZHIKKODE-673 008.** - **3 MINI GANESH, W/O. GANESH, HARIPRIYA, P.O. MUTTIL, WAYANAD DISTRICT-673 112.** - **4 THE STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **R3 BY ADV. SMT. BIMALA BABY** - **R4 BY SENIOR GOVERNMENT PLEADER SRI. SURIN GEORGE IPE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C):20950/2011 2 ## **J U D G M E N T** ## S. Manikumar, CJ Challenging the orders dated 02.12.2008 and 08.01.2009 (Exhibits-P5 and P6) passed by the Human Rights Commission, respondent No.1, allegedly without affording the petitioner an opportunity of being heard, and in violation of the Act and regulations, instant writ petition has been filed for the following reliefs: - (i) Call for the records leading to Exhibit-P5, order dated 02.12.2008 passed by the Kerala State Human Rights Commission, and to quash Exhibits-P5 and P6 orders by issuance of a writ of certiorari or any other appropriate writ, direction or order. - (ii) To issue a writ of mandamus or any other appropriate writ, direction, or order, directing the Kerala State Human Rights Commission, represented by its Registrar, Thiruvananthapuram, respondent No.1, to reconsider the matter, after affording the petitioner an opportunity of being heard. 2. Short facts leading to the filing of instant writ petition are that the petitioner had completed MBBS and MD from Kozhikode Medical College and took Diploma in Child Health (DCH), FCPS (Pediatric) from Tata Memorial Hospital Mumbai, and M.Sc (Applied Nutrition) from I.C.M.R., NIN, Hyderabad. The Government of India had deputed the petitioner for Commonwealth Medical Fellowship in Hemato Oncology to Birmingham Children Hospital, U.K. during the period 1989 to January WP(C):20950/2011 3 1993. From 1982 to April 2006, the petitioner was working in the Pediatric Departments, in Kozhikode Medical College. He started his career as a senior lecturer in the Pediatrics Department and retired as Associated Professor on 30.04.2006. After retirement, he was working as the Professor and HOD, Pediatrics and Neonatology in M.E.S. Medical College and Hospital, Perinthalmanna. 3. While so, the petitioner came to know from Exhibit P1 news item in Hindu daily that the 1[st] respondent passed Exhibit P5 order dated 02.12.2008, finding him liable for the alleged failure to give proper treatment to the daughter of the 3[rd] respondent, on an application filed by her. Petitioner was not served with any notice nor was he aware of the pendency of the matter. Hence, he filed Exhibit P2 application dated 15.12.2008, for setting aside the _ex parte_ order, after affording him an opportunity of being heard. Exhibit P3 stay application was also filed along with Exhibit P2. 4. Thereafter, Exhibit P4 summons dated 24.07.2010 was issued by the 1[st] respondent directing the petitioner to appear before the Commission, in the camp sitting at Kozhikode, on 11.08.2010, and in due compliance of the same, he had appeared and it was intimated that orders in Exhibits P2 and P3 would be duly intimated to him. However, no orders were ever intimated. Petitioner, then received a notice in W.P(C) No.16102/2011 filed by the 3[rd] respondent seeking for a direction WP(C):20950/2011 4 to implement Exhibit P5 order of the 1[st] respondent. Thereafter, he came to know that Exhibits P2 and P3 applications filed by him were disposed of by Exhibit P6 order dated 08.01.2009, much prior to the issuance of Exhibit P4 summons dated 24.07.2010. 5. Petitioner has contended that Exhibits P5 and P6 orders are not proper, correct, legal or sustainable, and are rendered violating the principles of natural justice and fair play. According to him, the principles laid down by the Hon'ble Supreme Court of India and by this Hon'ble Court in matters relating to medical negligence cases have not been followed while passing Exhibit-P5 order. That apart, no opportunity of hearing was given to him before passing Exhibits-P5 and P6 orders and the same were passed behind the back. The 1[st] respondent has not taken any expert opinion from the Medical Board or from the HOD of the Pediatric Department or from the Principal of Kozhikode Medical College, with regard to the negligence alleged on his part. In such circumstances, the petitioner has approached this Court with this writ petition. 6. Based on the above pleadings, petitioner has raised the following grounds: (a) Exts.P5 and P6 orders passed by the 1[st] respondent are not proper, correct or sustainable, opposed to the principles of natural justice, and the same is against the facts and circumstances of the case, the weight of evidence, law applicable, proof, and probabilities of the case as well. WP(C):20950/2011 5 - (b) The 1[st] respondent ought to have dismissed the petition since there was no negligence or carelessness on the part of the petitioner in the treatment of the patient. The 1[st] respondent ought to have found that medical negligence cannot be presumed but positively proved, by legally admissible evidence, including expert evidence. In the absence of the above, the 1[st] respondent erred in rendering a decision against the petitioner. - (c) The observations, reasoning, and findings of the 1[st] respondent are not proper, correct or sustainable, besides being baseless. The 1[st] respondent has rendered a decision based on conjunctures, surmises and presumptions, having no basis either in the pleadings or evidence in the matter. - (d) The 1[st] respondent ought to have appreciated the fact that the 3[rd] respondent has not issued any notice to the petitioner prior to institution of the complaint. No notice regarding the matter was received by the petitioner from 1[st] respondent, and no opportunity of being heard was afforded to the petitioner before rendering Exts. P5 and P6 orders. The statement in Ext.P5 order that the petitioner made a casual appearance and disappeared from the scene, without further participation, is baseless, a mistaken one, and proved to be so from the other statements and observations in the Ext.P5 itself. - (e) No notice was received at M.E.S. Medical College and Hospital, Perinthalmanna. Neither the HOD of the Department of Pediatrics or the Superintendent of IMCH, MCH, Kozhikode had ever issued any show cause notice or intimation to the petitioner nor WP(C):20950/2011 6 conducted any departmental enquiry regarding the matter. Had the petitioner known about the institution or pendency of the said matter before the 1[st] respondent, he could have definitely entered appearance and submitted true and correct facts. The copy of the alleged complaint has also not been served on the petitioner till date. - (f) The 1[st] respondent has erred in overlooking the fact that the petitioner was only one of the Doctors of the team which treated the patient, and no independent treatment or any private consultations or treatment was done by him on the patient. Leukemia patients are not treated from home and the patient was never treated from the residence of the petitioner. - (g) The 1[st] respondent ought to have held that the petitioner was an unnecessary party in the proceedings because the entire treatment was done by the team of doctors from the Medical College and there was cross consultation as well. Upon reference to the leukemia clinic, the petitioner had treated the patient bestowing all care, caution and attention as per the universally accepted standard medical protocol, and there was absolutely no negligence, indifference or carelessness on his part. - (h) The 1[st] respondent ought to have held that the petitioner has no control or access over the documents pertaining to the treatment of the patients and the same is purely, within the administrative control of the Medical Records Library, under the control of the Superintendent of the Medical College, and the petitioner had retired on 30.04.2006 from Government service. WP(C):20950/2011 7 - (i) The 1[st] respondent ought to have held that in the case of a Medical Negligence to find fault with a doctor, there should be solid and cogent evidence and materials to prove the negligence and in the instant case the same were lacking. - (j) The 1[st] respondent ought to have found that the 3[rd] respondent had failed to discharge the burden of proving the fact that there was negligence on the part of the petitioner. - (k) The 1[st] respondent went wrong in assessing the quantum of damage without any material or substantive evidence on record and solely relying on the claim of the 3[rd] respondent. The amount of compensation directed to be paid is baseless and unsustainable, besides being highly excessive, exorbitant and disproportionate having no rational basis. - (l) The 1[st] respondent, while rendering the impugned Ext.P5 order, failed to take into account the legal position applicable and the authorities relating to the issue of medical negligence. - (m) In **Wilsher v. Essex Area Health Authority** [1988 (1) All ER 871], it has been held that when there are different reasons for the complication, the burden to prove causation is on the complainant. The Hon'ble Supreme Court in **Smt. Vinitha Ashok v. Lakshmi Hospital** [AIR 2001 SC 3914] held that a doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skill in that particular art and if he has acted in accordance with such practice merely because there is a body of WP(C):20950/2011 8 opinion that takes a contrary view would not make him liable for negligence. That apart, he had relied on various decisions of the Hon'ble Supreme Court viz., **Jacob Mathew v. State of Punjab & Another** reported in 2005 (6) SCLE 130; **Martin F D'Souzha v. Mohd. Ishfaq** [(2009) 1 CPR 231 (SC)]; **Kusum Sharma v. Batra Hospital and Medical Research Centre** [(2010 (1) KLT SN 83 (C. No.100) SC]; and this Court in **M. Shoba v. Dr. Mrs. Rajakumari Unnithan & others** (AIR 1999 Kerala 149), to substantiate his contentions. - (n) It is further contended that Medical negligence has to be proved by the 3[rd] respondent, by examining expert witnesses. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. The onus is on the 3[rd] respondent, and alleged negligence has to be proved, by adducing positive evidence, including expert evidence. To prove the negligence of any doctor, the complainant has to lead adequate evidence with supportive medical text. Cases of medical negligence fall in its own category and need to be proved with the help of expert opinion. Such cases are not proved by uncertain evidence and in realms of probability. - (o) Medical negligence has to be established and cannot be presumed, and expert evidence is necessary. The medical practitioner is not an insurer and so cannot be blamed every time if something goes wrong. Things can go wrong in the treatment of patients even with the very best available care. Burden of proving that the doctor negligence rests with the WP(C):20950/2011 9 complainant and it is not for the doctor to show that he was not negligent as seen erroneously held by the 1st respondent in Ext.P5. - (p) In respect of alleged medical negligence, the burden heavily lies on the complainant to prove such negligence. The injury to the reputation of a medical professional is very serious and liable to be appreciated, which is akin to a professional death sentence. - (q) The 1[st] respondent ought to have found that the 3[rd] respondent had not approached the Commission with clean hands and that she had willfully suppressed the material facts, and has set out untrue, untenable and misleading allegations and claims, which as well disentitled her from claiming or getting any relief. There was no proper appreciation of the pleadings and evidence in the matter even going by the available evidence, the 1[st] respondent ought to have dismissed the petition as against the petitioner, especially because the 3[rd] respondent has miserably failed to prove the case and claim set up by her. 7. The 3[rd] respondent, has filed a detailed counter affidavit, controverting the avements made by the petitioner in the writ petition. In the counter affidavit, the 3[rd] respondent has contended as under: - A. Her daughter Anjali, was under treatment in the Kozhikode Medical College from 05.12.1998 for Lymphatic Leukemia L-1. She was under the treatment of Dr. Riyas in Ward No. 55. Chemo therapy was administered to her under his supervision. On transfer of Dr. Riyas from Ward No. 55, the said Ward was under the supervision of the WP(C):20950/2011 10 petitioner. The tests conducted, after 3 years of treatment, as per the direction of the petitioner, indicated that her daughter has recovered from the disease, and check up was continued as advised by the doctor. - B. It was further contended that in 2002, she suffered headache, diminishing sight and vomiting. Though the petitioner was consulted, he did not examine in detail and prescribed medicines for gas and acidity. Thereafter, in December, 2002, when headache and vomiting were increased, Dr. Sajith of Kalpetta Government Hospital was consulted at his residence and as advised by him, on 1/3/2003, scanning was conducted in Doctor's Scan Centre, Kozhikode and the result was shown to the petitioner. He became annoyed and asked the 3[rd] respondent, as to whose permission scanning was done. Thereafter, he directed to check the blood of the patient at his own lab adjacent to his consulting room. Though other laboratories are doing the said test free of cost, the test was conducted at his lab, on payment. As per the test result, Anjali was suffering from Migraine. Thereafter, the treatment was for migraine. - C. When her sight was diminishing further, the petitioner was again consulted and he referred the case to ophthalmic O.P. The doctor in the said department advised specs. Since it did not make any change in her sight, she was taken to Comtrust Eye Hospital, Kozhikode and thereafter, to Aravind Eye Hospital, Coimbatore. The doctors there have advised the 3rd respondent to consult a Neurosurgeon. Since the 3[rd] respondent realized that taking her daughter to Medical College Hospital, Kozhikode WP(C):20950/2011 11 would be futile exercise, she was taken to Sri. Sathya Sai Institute of Higher Medical Sciences, Bangalore and consulted a Neurosurgeon. On expert examination, it was revealed that the disease had spread to such an extent that even radiation treatment of the head is also not possible and she was losing her eyesight. Thereafter, the daughter of the 3[rd] respondent became blind and totally bed ridden. She could not even get up. Doctors of Pain and Palliative Center, Mananthavady, used to visit her residence and attend to her. Ultimately, she succumbed to the dreaded disease. D. The 3[rd] respondent further contended that the petitioner is solely responsible for the untimely and unfortunate death of my daughter. She has also suffered huge financial constraints and mental agony. In such circumstances, she approached the 1[st] respondent Commission seeking for a detailed investigation and to punish the delinquent, in accordance with law. The 1[st] respondent by Ext. P5 order awarded a sum of Rs. 1,75,000/- to the 3[rd] respondent, being the compensation for the shock and mental pain suffered, due to the sheer negligence of the petitioner, and the 4[th] respondent was directed to recover the same from the petitioner and pay to her. It was also directed to forward a copy of the order to the Medical Council of India, to take appropriate action against the petitioner for his conduct. - E. Pursuant to Ext. P5 order, the 4[th] respondent appears to have taken no action to comply with the said order. Therefore, the 3rd respondent caused to send a registered lawyer notice on 9/3/2011 to the 4[th] respondent WP(C):20950/2011 12 requesting to take immediate steps to ensure compliance of Ext. P5 order. Though the said notice was served on the 4[th] respondent, no action was taken. Therefore, the 3[rd] respondent approached the writ court by filing WP(C) No. 16102/2011-K. A learned single Judge of this court admitted the writ petition, ordered notice to the respondents, and the matter is pending consideration. As a counter blast to WP(C) No. 16102/ 2011, the petitioner has filed the present writ petition. F. It cannot be believed that the petitioner was unaware of the institution or pendency of the said matter before the 1[st] respondent, particularly when the Superintendent, Institute of Maternal & Child Health, Kozhikode has filed a statement before the 1[st] respondent on 22/1/2004. As a matter of fact, Ext. P5 order was passed, after writing for 5 years to hear from the petitioner. More than 5 notices were sent to him and once he appeared and a statement was also filed through counsel. Therefore, it is not true that Ext. P5 order was passed _ex parte_ . G. As contemplated under Section 16 of the Human Right Protection Act, 1993, sufficient opportunity was afforded to the petitioner and more than 5 years the case was prolonged due to the deliberate negligence on the part of the petitioner by- not appearing in the case, in spite of repeated notices. In Ext. P6 order, it is stated, "The petitioner herein, did appear in their proceedings but, he never put in his defence. To cover contrary, is a travesty in truth. Besides, the wordings employed in this application is not befitting to a pleading to be filed in a Court. The petitioner cannot describe the orders of the WP(C):20950/2011 13 Commission as 'high handed' etc. No grounds have been made out to entertain the application. Besides, the jurisdiction exercised by the Commission being advisory, proceedings and orders passed are not ex parte orders. Closed." - H. The finding of the 1[st] respondent that, "This clearly demonstrates the crucial role played by Dr. Kutty referred to supra in the matter of treatment; it is indeed sad how differently the Doctor has behaved in treatment of a patient; a Medical Doctor is guilty of violation of right to medical treatment, a victim is entitled to in having treated the patient such a manner; It is thus a case of grossest act of violation of Human Rights of a poor patient", clearly establishes the sheer negligence of the petitioner. Further, in spite of repeated notices, he has neglected to appear before the Commission and to prove his innocence. Even from 2/12/2008 (date of passing of Ext. P5 order) till filing of the WP (C) No. 16102/2011-K by the 3[rd] respondent, the petitioner did not even care to prove his innocence if he is really innocent of the allegations. But when this Court interfered in the matter, the petitioner understood that he had no escape from the eye of law and hence he came up with the above writ petition to circumvent his actions. For the foregoing reasons, the 3[rd] respondent prayed for dismissal of the writ petition. 8. Heard the learned counsel for the respective parties and perused the material on record. 9. The notice issued by the Kerala State Human Rights Commission dated 24.07.2010 to the petitioner reads thus: WP(C):20950/2011 14 “No. HRMP: 2393/P2/03/KKD Dated: 24/7/10 ## **SUMMONS** Whereas your attendance is necessary for an enquiry in HRMP No.2393/03 filed by Smt. Mini Ganesh pending before the Commission against you, you are hereby required to appear before the Commission holding Camp Sitting at 11 AM on 11-08-2010 at PWD Rest House, Kozhikode. …..........................at /statement, if any. Copy of the petition is already forwarded to you. Sd/- To Dr. P. Mohammed Kutty S/o. Moideen 19/1448 M.N. Road, P.O., chalappuram Kozhikode.2” 10. The order dated 02.12.2008 passed by the Kerala State Human Rights Commission in H.R.M.P. No. 2393 of 2003 reads thus: ## “BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM Present: Hon'ble Mr. Justice V.P. Mohan Kumar, Member ## H.R.M.P. No.2393/2003 Present : Smt. Mini Ganesh “Haripriya” Parakkal P.O.Muttil Wayanad. Respondent : 1. Dr. P.M.Kutty 2. The Superintendent Medical College Hospital, Kozhikode. WP(C):20950/2011 15 ## Order dated 2nd December, 2008 This case has been pending before this Commission since more than five years. It is quite an unfortunate case that it ought not to have been pending so long. It is a hard case and it is a well known saying in law that unfortunate cases lead to laying down bad law. This case should be an exception to the said rule. In a given case a patient entrusts himself to the care of the Medical Doctor for treatment. The patient places implicit faith in him and he undergoes the treatment administered by the Medical Doctor without demur. And ultimately the patient, despite the treatment, dies. The legal heirs bring an action for damages against the Medical Doctor. The legal heirs are lay men and not addressed in the intricacies of law. On whom does the burden of proof to establish negligence? This in short is the question addressed in this case. Theoretically, the burden of proof is on the plaintiff who alleges cause of action for the claim to establish the claim. But there may be cases were burden of proof would shift when the question involved may be riddled with intricacies of science or engineering etc. In such a case to cast the burden entirely on the plaintiff/claimant to establish the claim would be like putting the cart before the horse. According to me, in such peculiar circumstances, the initial burden of proving that due care and caution has been taken by the Medical Doctor or the engineer as the case may be lies in the matter of treatment of the patient definitely lies on the Medical Doctor or the expert as the case may be. In the case, the complainant states in her complaint as under: xx xxx xxxxxx WP(C):20950/2011 16 I am compelled to extract the pleading so that none of the allegations should escape the attention of the person who peruses this order. It is rather unfortunate that in response to the notice of the Commission the Respondent, the Medical Doctor against whom the allegations are leveled, only made a casual appearance and disappeared from the scene without further participation. I also find that the Superintendent, Institute of Maternal & Child Health, Kozhikode filed a statement in the form of a letter before the Commission (No. M-6401/03 dated 22.01.2004) stating as under: “The patient Anjali was under the treatment in the department of paediatrics under the case of Dr.P.M.Kutty and it was a case of Leukemia L-1. A report of this matter had been called from Dr.P.M.Kutty, Head of Department, Paediatrics immediately on receipt of the letter from that end. But the case sheet for the treatment of the child during May, 1998 could not be traced out. Explanation was sought from Medical record Librarian as to why case sheet is not traced out and also Head Nurse in-charge of ward 55 as to whether case sheet is handed over to Medical record Librarian or not. Dr.P.M.Kutty is on Haj Pilgrimage from 26-12-2003 and he is expected to rejoin duty by 9-2-2004. Some other case sheets relating to the admission of the patient in 1999 have since been received. On going through the same, the Head of Department of PaediatricsDepartment has stated that it was a case of acute Lymphatic Leukemia L-I and she was on regular Chemotherapy with various anti-malignancy drug. A detailed report on this can be had only on getting a reply from Dr.P.M.Kuty who is expected - - to be back from Haj Pilgrimage on 9 2 2004. (underlining for emphasis) I therefore humbly request that I may be permitted to file a detailed reply within one month.” WP(C):20950/2011 17 This statement makes it clear that it is only Dr. K.M.Kuty, the Respondent herein, who could throw some light on the case. But unfortunately, he did not appear and even after the pilgrimage, he kept the same distance from the case. Perhaps, he wanted the purity he acquired by the pilgrimage to himself. On 25-11-2006, I passed the following order on the fervent hope that some concrete evidence would be tendered. “The allegation discloses an alleged act of negligence in the matter of treatment of child of the complainant resulting in the death of the child, by the 1[st] respondent. The medical doctor is the 1[st] respondent. Despite notice, he did not appear at any of the sittings at Kozhikode. The allegation, if provided, is a serious case of violation of human rights. The petitioner has therefore to prove the allegation. Hence, post at the sitting at S. Battery on 16-12-2006, to produce evidence, in support of the allegation in the petition. Issue notice to the petitioner enclosing the copy of the order” As noticed in the order, the suffering child was already dead leaving the mother to pursue the fight. The complainant complied the above direction issued by me and produced a large number of documents which were only the photo copies of the prescription of the Doctor respondent who treated the child. This was done on 30-032007. In the accompanying application filed by the complainant to receive the documents, she stated inter-alia as under: ## xx xxx xxxx I notice that the complainant had brought the originals of the document, but the Commission had indicated WP(C):20950/2011 18 the production of the photocopy of the same for the time being hoping that as and when the Respondent appears, he may verify the correctness of the copy and if necessary call upon the complainant to produce the original. These documents are prima facie proof that the respondent had treated the child and that she had incurred large sums of money. In fact, on 19-02-2007, I had issued notice to Dr. P.M.Kutty, who was by then the Head of Department (Pediatrics), M.E.S.Medical College, Perinthalmanna to appear by 13-03-2007. Story was the same, he failed to appear. In these circumstances, this Commission closed the case for orders. However, I felt that in the interest of justice a posting be given to the case again to adduce further evidence to hear the defence. Hence, an order was made on 12-06-2008 to that effect. The case was posted to 19-112008. But the complainant alone appeared and filed an affidavit claiming Rs. 7,00,000/- to be the loss sustained by her. Again the Medical Doctor was absent. On that date, the Medical Superintendent, Institute of Maternal & child Health, Kozhikode, filed a statement in the following manner: xx xxx xxxx This clearly demonstrates the crucial role played by Dr. Kutty referred to supra in the matter of treatment. It is indeed sad how differently the Doctor has behaved in treatment of a patient. A Medical Doctor is guilty of violation of right to medical treatment, a victim is entitled to in having treated the patient in such a manner. It is thus a case of grossest act of violation of Human Rights of a poor patient. WP(C):20950/2011 19 When a lay man complains that he has not been properly treated, it is upto the Physician to establish that he has taken reasonable care while treating the patient. To call upon the patient to prove otherwise is tantamount to directing him to prove the negative. Such defence is immoral and violates the oath a Medical Doctor takes before entering upon profession namely: the Hippocratic oath. But many a time, it is observed in its breach than being followed. I fervently wish that this case is the last of such cases showing and thus flouting of the oath generation succeeding would come forward to discharge their duties as a Medical Doctor more avowedly. To begin with, the Medical Doctor should disclose the Commission, what was the ailment that he diagnosed that the patient to be suffering from, as to how he came to that conclusion; what steps he took to treat the patient; what were the medicines he administered, did he inform the near relatives of the ailment, did he advised the patient to avail expert advise if they so feel so to do so, how was the patient responding to the treatment administered, has he bestowed best attention and in what manner was the treatment administered to the optimum skill of the Medical Doctor or could the patient have availed better treatment elsewhere etc. etc. In other words, the Medical Doctor should show to the Commission that he has bestowed best of his attention and that he has taken all reasonable care as a prudent man addressed in his faculty of medicine and also that he has treated similar cases in part or seen at least such cases being diagnosed and successfully treated. If the primary evidence is let in, then the burden would shift upon the complainant to establish the contra. Unfortunately, in this case, the respondent has failed to discharge the burden. WP(C):20950/2011 20 In such a case, the complainant is entitled to the relief sought for. What is the relief that a victim is entitled to, in such a case ? The victim can claim damages from the erring Medical practitioner. It can be in the form of money, expended for treating the deceased child as the advice of the Doctor. In this behalf, I would quote the following observation in the well-known decision Donoghue Vs. ## Stevenson: The grounds of action may be as various and manifold as human errancy, and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life." Awarding of monetary compensation to the mother is of little solace to the mother. The child is dead and the money awarded is no substitute. In the fond hope that the child may recover, its parents would have raised funds may be by several means, "begging or borrowing". They would have yearned to see the toddler play in the courtyard of their home. But due to the indifference (perhaps) of the Doctor the dream is shattered. But there is no detailed evidence to establish the break up of Rs. 7,00,000/- claimed by the complainant. But. I feel taking into account the prolonged treatment and mental agony, it can be restricted and quantified to Rs.1,75,000/-. Rs.1,00,000/- being damages for mental agony and pain and suffering and Rs.75,000/- being the Medical expenses incurred. It is said that, "Men are not hanged for stealing horses but that horses may not be stolen.” This rule be followed here as well. WP(C):20950/2011 21 Hence, taking into account, all circumstances, in exercise of powers under Clause 46 of Kerala State Human Rights Commission (Procedure) Regulation, I award a sum of Rs.1,75,000/- (Rupees One lakh seventy five thousand only) being the compensation for the shock and mental pain suffered by the complainant due to the sheer negligence of the Respondent and I direct the State of Kerala to recover the same from the Respondent and pay the same to the complainant. 1 direct the copy of the order to be forwarded to the Medical Council of India to take appropriate action against the Respondent for the conduct of the Respondent. Dated this the 2[nd] day of December, 2008. Sd/Justice V.P.Mohan Kumar Member” ## 11. The order passed by the 1[st] respondent dated 08.01.2009 (Exhibit-P6), closing the HRMP No.2323 of 2003 reads thus: ## “BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM Present: Mr. Justice V.P. Mohan Kumar, Member ## H.R.M.P. No.2393/2003 Present : Smt. Mini Ganesh “Haripriya” Parakkal P.O.Muttil Wayanad. Respondents : 1. Dr.P.M.Kutty 2. The Superintendent Medical College Hospital, Kozhikode. WP(C):20950/2011 22 ## Order dated 8th January, 2009 The petitioner herein did appear in their proceedings but, he never put in his defence. To cover contrary, is a travesty in truth. Besides, the wordings employed in this application is not befitty to a pleading to be filed in a court. The petitioner cannot describe the orders of the Commission as “high handed” etc. No grounds have been made out to entertain the application. Besides, the jurisdiction exercised by this Commission being advisory, proceedings and orders passed are not ex parte orders. Closed. **==> picture [141 x 36] intentionally omitted <==** //True copy// REGISTRAR” 12. Letter dated 16.03.2017 of the Secretary, Kerala State Human Rights Commission addressed to the Advocate General, High Court of Kerala, regarding compliance of interim order in W.P(C) No.16102/11 filed by the 3[rd] respondent, produced along with the counter affidavit, is extracted hereunder: “KERALA STATE HUMAN RIGHTS COMMISSION Turbo Plus Towers, P.M.G. Jn., Vikas Bhavan. PO. Thiruvananthapuram – 33 No. 5366/C0/17/ HRC Dated 16 March, 2017 From The Secretary WP(C):20950/2011 23 To Advocate General, High Court of Kerala, Eranakulam. Sir, Sub:- WP(C) 16102/11 filed by Smt Mini Ganesh interim order compliance of – reg. Ref:Letter dated 09/02/2017 from the Advocate General's Office. Kind attention is invited. The letter under reference along with the copy of the interim order of Hon'ble High Court in WP(C) 16102 & 20950 of 2011 was received in this office on 27-02-2017. As per the order this office is directed to forward the entire files relating to HRMP No. 2393 of 2003. In obedience to the directions instruction was given to make available the file from the concerned section. As the files are not forthcoming from the section written instructions dated 02-03-2017 were issued to the section dealing Wayanad District and also the records section to trace out the file pointing out the direction from the Hon'ble High Court. But the respective sections have reported that the particular file is not available in the sections. On a reading of the order at two places the number is seen stated as 2393/2008 and therefore efforts were made to trace these files. Though this file was traced it is not connected to the above writ petitions. On further scrutiny with reference to the HRMP register maintained in this office it is seen that file in question 2393/2003 in which the petitioner is the same in WPC also. However, in spite of all efforts, the respective file 2393/2003 could not be traced out so far. The above facts are reported for kind consideration and necessary action. WP(C):20950/2011 24 ## Yours faithfully, ## SECRETARY” 13. Before going into pleadings, we may have a look at the statutory provisions. 14. Protection of Human Rights Act, 1993 is an Act to provide for the Constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto. Section 2(d) of the Act defines human rights to mean 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. 15. Chapter III of the Act, 1993 deals with functions and powers of the Commission. Section 12 under Chapter III of the Act speaks about functions of the Commission and it read thus: ## “ **12. Functions of the Commission.** - The Commission shall perform all or any of the following functions, namely:— (a) inquire, _suo motu_ or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of— (i) violation of human rights or abetment thereof; or WP(C):20950/2011 25 (ii) negligence in the prevention of such violation, by a public servant; (b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; (c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; (g) undertake and promote research in the field of human rights; (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; WP(C):20950/2011 26 (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the promotion of human rights.” 16. Section 16 of the Act, 1993 speaks about persons likely to be prejudicially affected to be heard and it reads thus: ## “ **16. Persons likely to be prejudicially affected to** ## **be heard** .- If, at any stage of the inquiry, the Commission— (a) considers it necessary to inquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry,it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached.” 17. Chapter IV of the Act, 1993 deals with procedure. Section 17 under Chapter IV of the Act speaks about inquiry into the complaints and it reads thus: ## “ **17. Inquiry into complaints.** - The Commission while inquiring into the complaints of violations of human rights may— (i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it: Provided that— WP(C):20950/2011 27 (a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own; (b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly; (ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.” ## 18. Section 18 of the Act speaks about steps during and after ## inquiry and it reads thus: “ **18. Steps during and after inquiry** .-The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:— (a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority— (i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary; (ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons; (iii) to take such further action as it may think fit; (b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; (c) recommend to the concerned Government or WP(C):20950/2011 28 authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary; (d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative; (e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission; (f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.” 19. In exercise of the powers conferred by Section 10(2) read with Section 29 of the Protection of Human Rights Act, 1993, the Kerala State Human Rights Commission made the Kerala State Human Rights Commission (Procedure) Regulations, 2001. Regulation 38 deals with summons and it reads thus” “ **38. Summons** :- (a) The summons to be issued by the Commissioner shall be for the following purposes, namely:- (i) to afford the complainant/respondent or any other person on their behalf a personal hearing. WP(C):20950/2011 29 (ii) to hear any other person who in the opinion of the commission should be heard for appropriate disposal of the matter placed before the Commission; (iii) to cause production of records required by the commission; (iv) to call upon any individual to appear before the commission to be examined as a witness; (v) to secure the presence of any person whose conduct/action is inquired into by it; (vi) to afford an opportunity of being heard, to the person against whom allegations are made or whose reputation is, in the opinion of the Commission, likely to be prejudicially affected by the order to be passed by it. (b) Summons to the persons referred to under this Regulation shall be in Form No.7. (c) Summons issued by the Commission shall ordinarily be signed by the Registrar. (d) The words “By Order” of the Commission shall invariably be prefixed to the signature of the Registrar in such cases. (e) Summons to official witnesses shall be through their immediate Superior Officers or the Head of the Officer, as the case may be. (f) The cases in which summons has been issued for personal appearance shall be placed before the Commission sufficiently in advance or at the latest one day prior to the date noted in the summons for such personal appearance.” 20. Regulation 46 of the Regulations speaks about communication or recommendations and it reads thus: ## “ **46. Communication of Recommendations** .- In cases where the enquiry results in any recommendation to the WP(C):20950/2011 30 Government or any other authority or organisation subordinate thereto a copy of the report thereon shall be forwarded to the Government or the authority or organisation subordinate thereto as the case may be, within 20 days from the date of the order and the Government or authority shall be required to forward its comments on the report, including the action taken or proposed to be taken thereon to the Commission within a period of one month of such further time as the Commission may allow.” 21. We have considered the submissions advanced and the statutory provisions. 22. The basic contention put forth by the petitioner in this writ petition is that he was not provided with sufficient opportunity to participate in the proceedings by the State Human Rights Commission and the petitioner came to know about the order passed by the Human Rights Commission when he received notice in W.P.(C) No.10102 of 2011 filed by the 3[rd] respondent/complainant seeking a direction to the State Government to implement the orders passed by the Kerala State Human Rights Commission. 23. In order to understand the veracity and truth of the contentions so advanced by the petitioner, we have perused the order passed by the Human Right Commission elaborately and find that Human Rights Commission had provided sufficient opportunity of hearing to the petitioner . In fact, apart from the notice issued, when the complaint was received, the Commission had forwarded a copy of the WP(C):20950/2011 31 complaint to the petitioner but the petitioner did not appear. Subsequently, since the Human Rights Commission felt that notice had to be sent to the petitioner to provide opportunity to adduce evidence and put up defence, again notice was issued to the petitioner on various occasions, but the petitioner failed to appear in spite of the same, and it was thereafter that ,after appreciating the pleadings in the complaint and the documentary evidence, as well as the statement of a Doctor of Kozhikode Medical College, Human Rights Commission has evaluated the entire situation as regards the difficulties faced by the complainant, consequent to the negligence in the treatment of the daughter of the complainant, who later died consequent to Leukemia, the recommendatory order was passed. It is relevant and important at this juncture to note that even after taking the complaint for orders, perhaps in order to avoid any future complexities in the matter, the matter was reopened and again issued notice to the petitioner, still the petitioner failed to appear. These aspects are well reflected in the order of the commission, which would in turn speak in volume the efforts taken by the commission to protect the interest of the petitioner too. The 3[rd] respondent/complainant had, in fact, claimed an amount of Rs.7 lakhs towards compensation. However, the State Human Rights Commission was careful enough to evaluate the basic damages suffered by the petitioner and ultimately found that there is no break up of the amount WP(C):20950/2011 32 claimed, in order to adjudicate the entire loss suffered by her and it was accordingly that an amount of Rs.1 lakh would be adequate for the pain, suffering, and mental shock undergone by the 3[rd] respondent/ complainant and Rs.75,000/- towards medical expenses. 24. We are also of the view that it was after finding that there is violation of human rights, the Kerala State Human Rights Commission had arrived at the findings stated above. Discussion of the statutory provisions extracted above, would also show that the Human Rights Commission had the power to entertain the complaint and order compensation. It is also significant to note that, even though the Commission had the power to make recommendations under the act even without hearing the petitioner, it made all efforts to secure the participation of the petitioner and only on failing to achieve the same, Commission was compelled to pass orders based on the satisfactory and reasonable evidence available before it. The contention advanced by the petitioner that the Kerala Human Rights Commission has no power to direct the State Government to recover compensation and order the Medical Council of India to take appropriate action against the petitioner for his conduct cannot be accepted. The fact remains, even assuming that the powers conferred under the Protection of Human Rights Act, 1993 are recommendatory in nature, ultimately the recommendations made by the Commission is after adjudication of a litigation on its merit. WP(C):20950/2011 33 Therefore, the recommendation has to be treated as binding on the Government, enabling the Government to proceed to implement the recommendation made by the Human Rights Commission. 25. That apart, the petitioner has raised various contentions in the writ petition as regards the treatment extended to the daughter of the 3[rd] respondent/complainant, including that the treatment was extended by a team of doctors and not by the petitioner alone. However, these were all matters which should have been placed by the petitioner before the Kerala State Human Rights Commission, enabling the Commission to evaluate the pros and cons and the weight of the pleadings put forth by the petitioner or even the evidence adduced. Having not participated in the proceedings before the Human Rights Commission in spite of the earnest efforts of the Commission, petitioner is not at liberty to call upon this Court to adjudicate the issue afresh taking in account the pleadings put forth by him, nor a writ court is expected to remand a matter as a matter of course. That apart the principles of interference in an order passed by a statutory authority exercising the power of judicial review remains the same, i.e. to identify as to whether there is any arbitrariness or patent illegality justifying such interference. 26. In fact, the petitioner himself has admitted that he has filed an application to set aside the _ex parte_ order passed by the Kerala State Human Rights Commission. Therefore, it cannot be said that the WP(C):20950/2011 34 petitioner was not aware of the proceedings pending before the Human Rights Commission. If he has engaged a lawyer and filed an application or even if he was appearing in person, the petitioner should have shown due diligence to the proceedings before the Human Rights Commission. The Commission is not expected to issue notice periodically once the party has entered appearance personally or through counsel, and the petitioner was responsible and duty bound to verify the posting dates of the complaint and appear before the forum. That is the general or usual procedure adopted in every judicial or quasi judicial proceedings unless otherwise ordered or circumstances required and there can be no unusual practice in the proceedings conducted by the Human Rights Commission. 27. Even though the petitioner has cited various decisions as regards the powers of the Kerala State Human Rights Commission and other aspects, we are of the considered opinion that the Human Rights Commission has basically adjudicated the issue by virtue of the powers conferred under the Act, 1993 and the petitioner has not established before this Court that the issue of negligence in the treatment and the consequential difficulties and inconveniences faced by the 3[rd] respondent/complainant was not a subject matter which ought to have been considered by the Kerala State Human Rights Commission. 28. In **Abdul Sathar v. The Principal Secretary to** WP(C):20950/2011 35 **Government, Home Department, Chennai, and others** [judgment dated 05.02.2021 in W.P. Nos.41791/2006 and other connected cases], a Hon'ble Full Bench of the Madras High Court had occasion to consider various issues, including the recommendatory power of the Human Rights Commission, and, at paragraphs 490 to 498, it was held thus: _“490. In the conspectus of the above discourse, the following is our summation to the terms of the Reference:_ _(i) Whether the decision made by the State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993, is only a recommendation and not an adjudicated order capable of immediate enforcement, or otherwise?_ _**Ans** : The recommendation of the Commission made under Section 18 of the Act, is binding on the Government or Authority. The Government is under a legal obligation to forward its comments on the Report including the action taken or proposed to be taken to the Commission in terms of Sub Clause (e) of Section 18. Therefore, the recommendation of the H.R.Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable. If the concerned Government or authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e) of the Act, the Commission can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate Writ/order/direction. We having held the recommendation to be binding, axiomatically, sanctus and sacrosanct public duty is imposed on the concerned Government or authority to implement the_ WP(C):20950/2011 36 _recommendation. It is also clarified that if the Commission is the petitioner before the Constitutional Court under Section 18(b) of the Act, it shall not be open to the concerned Government or authority to oppose the petition for implementation of its recommendation, unless the concerned Government or authority files a petition seeking judicial review of the Commission's recommendation, provided that the concerned Government or authority has expressed their intention to seek judicial review to the Commission's recommendation in terms of Section 18(e) of the Act._ _(ii) Whether the State has any discretion to avoid implementation of the decision made by the State Human Rights Commission and if so, under what circumstances?_ _**Ans** : As our answer is in the affirmative in respect of the first point of Reference, the same holds good for this point of Reference as well. We having held that the recommendation is binding, the State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission._ _(iii) Whether the State Human Rights Commission, while exercising powers under subclauses (ii) and (iii) of clause (a) of Section 18 of the Protection of Human Rights Act, 1993, could straight away issue orders for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause (i) of clause (a) of Section 18 of that enactment, from the Officers of the State who have been found to be responsible for causing such violation?_ _**Ans** : Yes, as we have held that the recommendation of the Commission under Section 18 is_ WP(C):20950/2011 37 _binding and enforceable, the Commission can order recovery of the compensation from the State and payable to the victims of the violation of human rights under Sub Clause (a)(i) of Section 18 of the Act and the State in turn could recover the compensation paid, from the Officers of the State who have been found to be responsible for causing human rights violation. However, we clarify that before effecting recovery from the Officer of the State, the Officer concerned shall be issued with a show cause notice seeking his explanation only on the aspect of quantum of compensation recoverable from him and not on the aspect whether he was responsible for causing human rights violation._ _'(iv) Whether initiation of appropriate disciplinary proceedings against the Officers of the State under the relevant service rules, if it is so empowered, is the only permissible mode for recovery of the compensation amount directed to be paid by the State to the victims of violation of human rights under sub-clause(i) of clause(a) of Section 18 of the Protection of Human Rights Act, 1993, from the Officers of the State who have been found to be responsible for causing such violation?'_ _**Ans** : As far as the initiation of disciplinary proceedings under the relevant Service Rules is concerned, for recovery of compensation, mere show cause notice is sufficient in regard to the quantum of compensation recommended and to be recovered from the Officers/employees of the concerned Government. However, in regard to imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental enquiry may be conducted only to ascertain the extent of culpability of the Official concerned in causing violation in order to_ WP(C):20950/2011 38 _formulate an opinion of the punishing Authority as to the proportionality of the punishment to be imposed on the official concerned. This procedure may be followed only in cases where the disciplinary authority/punishing authority comes to the conclusion on the basis of the inquiry proceedings and the recommendations of the Commission that the delinquent official is required to be visited with any of the major penalties enumerated in the relevant Service Regulations._ _As far as imposition of minor penalty is concerned, a mere show cause notice is fair enough, as the existing Service Rules of all services specifically contemplate only show cause notice in any minor penalty proceedings._ _(v) Whether Officers of the State who have been found to be responsible by the State Human Rights Commission for causing violation of human rights under Section 18 of the Protection of Human Rights Act, 1993, are entitled to impeach such orders passed by the Commission in proceedings under Article 226 of the Constitution and if so, at what stage and to which extent?_ _**Ans** : As we have held that the recommendation of the Commission under Section 18 of the Act is binding and enforceable, the Officers/employees of the State who have been found responsible for causing violation of human rights by the Commission, are entitled to assail such orders passed by the Commission by taking recourse to remedies of judicial review provided under the Constitution of India. It is open to the aggrieved officers/employees to approach the competent Court to challenge the findings as well as recommendations of the Commission._ WP(C):20950/2011 39 _491. As a corollary to the above conclusion, since the recommendation of the H.R.Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage qua complaint or inquiry by the Commission but only on substantial legal grounds._ _492. Before we part with this Reference, we are constrained to express our considered opinion that despite all the provisions in the Act, covering wide spectrum of human rights concerns in consonance with the Rule of Law governing our polity, in the absence of an inbuilt and integral provision within the explicit frame work of the Statute, a perception has been gaining ground in the corridors of the implementing authorities that the recommendation of the H.R.Commission lacks legal sanctity and hence can be trifled with. Such perception and point of view on the part of the implementing authority may not augur well towards addressing the complaints of human rights violation in the country where the written Constitution reigns supreme and is placed at the altar of our governance._ _493. Although the history after the introduction of the Act, reveals that by and large the recommendations of the Commission have been implemented, any discretion to the implementing authorities to either accept or not accept the recommendation would only lead to avoidable delay, forcing the Commission to invoke Section 18(b) of the Act._ _494. In a constitutional democracy, there is always a possibility of change of Governments, policy makers and so are the policies. The policies are always in a state of_ WP(C):20950/2011 40 _fluidity depending on expectations resulting in shifts and changes of perspective framework of the policy makers. In such circumstances, at the time of enactment of the Act, an assurance given on behalf of the Treasury Bench by the Hon’ble Minister concerned that recommendation of the H.R.Commission would be accorded due respect as in the case of recommendation of the Finance Commission and the Government in the past had never declined to accept the recommendation of the Finance Commission as matter of healthy convention._ _495. The history of politics and governance has been witnessing constant change through evolution of different policies and as a consequence of such change any convention observed in the past has its breaking point in tune with the time. Therefore, the Act which was introduced providing a public law remedy, cannot be operated on the basis of the assurance of the Hon’ble Minister concerned, unless the assurance is transformed into a letter of law for all the time to be followed._ _496. The avowed intention of the policy framed at that point of time was clear but at the same time, following any convention after all is only a matter of choice at the end of the day. If in this context, we are of the considered opinion that the intention of the framers may be given a statutory sanction within the Act itself to make the Act a complete code in itself instead of invoking the jurisdiction of the Constitutional Court for execution of the recommendation._ _497. We earnestly trust and hope that the Parliament in its collective wisdom would bring necessary amendments in the Act to provide wherewithal to the Commission for_ WP(C):20950/2011 41 _direct execution of the recommendation. By such initiation, the learned Parliament would be according befitting status to the Commission steered by the high constitutional dignitaries of the highest legal order._ _498. In the said circumstances, we hereby suggest to the policy makers to make suitable amendment/s in the Act providing for an internal/self-contained mechanism qua Human Rights Commission for enforcing its recommendations under Section 18 of the Act. By such amendment/s, the Act would become complete in all fours, leaving no room for procrastination in offering remedial action promptly.”_ 29. In the light of the above discussion and decision, we are of the view that the petitioner has not made out a fit case for interference with the order passed by the Kerala State Human Rights Commission, in a writ petition filed under Article 226 of the Constitution of India, there being no patent illegality or arbitrariness justifying us to do so. In the result, this writ petition fails and accordingly, it is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly Judge krj WP(C):20950/2011 42 ## **APPENDIX** ## PETITIONER'S EXHIBITS:- P1:- COPY OF THE RELEVANT PAGE OF THE HINDU DAILY DATED 13.12.2008. P2:- COPY OFTHE APPLICATION DATED 15.12.2008 FILED BY THE PETITIONER FOR SETTING ASIDE THE EX PARTE ORDER. P3:- COPY OF THE STAY APPLICATION DATED 15.12.2008 FILED BY THE PETITIONER. P4:- COPY OF THE SUMMONS DATED 24.07.2020 ISSUED BY THE 1ST RESPONDENT. P5:- COPY OF THE ORDER DATED 02.12.2008 PASSED BY THE 1ST RESPONDENT IN HRMP NO.2393/2003. P6:- COPY OF THE ORDER DATED 08.01.2009 PASSED BY THE 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS:- 'NIL' //TRUE COPY// P.A. TO C.J.