Full Judgment Text
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CASE NO.:
Writ Petition (civil) 105 of 2004
PETITIONER:
People’s Union for Civil Liberties
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 18/01/2005
BENCH:
Y.K. Sabharwal
JUDGMENT:
J U D G M E N T
Y.K. Sabharwal, J.
National Human Rights Commission (NHRC) is a high-powered
statutory body to act as an instrument for the protection and promotion of
human rights. The credibility of such an institution depends upon high
degree of public confidence. In the present case, the important question
that has been raised is whether a former member of the Police force is
eligible to become a member of NHRC.
NHRC has been set up under provisions of the Protection of Human
Rights Act, 1993 (for short ’the Act’). Its composition is provided in Section
3(2) of the Act. The question for consideration in this petition is about the
interpretation of Section 3(2) (d), which stipulates that the Commission
shall consist of two members to be appointed from amongst persons
having ’knowledge of, or practical experience in, matters relating to
human rights’. The fundamental question is whether a Police officer
would fall in the category stipulated under this provision and is
appointment of such a person consistent with the language of the section
and the true intendment of the Act. For determining this fundamental
question, it is necessary to note, in brief, the background relating to the
concept of Human Rights, the provisions of the Act and the scheme
thereof. First the facts which led to the filing of the petition may be briefly
noticed.
A vacancy arose in NHRC in November 2003. It was in respect of
the appointment to be made under Section 3(2) (d). The second
respondent, a Police Officer, retired as Director of Central Bureau of
Investigation (CBI) in December 2003. Every appointment is required to be
made after obtaining the recommendations of a Committee as postulated
by Section 4 of the Act. The notice was sent to the Committee members on
13th February, 2004, convening a meeting for 19th February, 2004. It
seems that on 19th February, the Home Secretary spoke to the Joint
Secretary to the Leader of Opposition who informed him that the Leader of
Opposition in the House of the People would not be able to attend the
meeting but she has conveyed her approval to recommendation of the
name of respondent No.2. Likewise, the Speaker of the House of People
also expressed inability to attend the meeting but conveyed his approval to
the appointment of respondent No.2. Insofar as Leader of Opposition in
the Council of States is concerned, his personal staff informed that being
unwell and admitted in Hospital, he would not be able to attend the
meeting. A meeting was held on 19th February, 2004 wherein it was
decided to recommend the name of respondent No.2 to be appointed as a
member of the Commission. The Committee noticed that the Leader of
Opposition in the House of People and the Speaker had both conveyed
their approval for the said recommendation. Thus on 19th February, 2004,
respondent No.2 was selected to be appointed a Member of NHRC.
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The appointment has been challenged mainly on the ground of
ineligibility of a police officer for being considered for appointment under
the category contemplated by Section 3 (2) (d). We may note that the
challenge is based on the fundamental issue and not on any allegations of
personal nature against respondent No.2. The contention is that none
from police or security force is eligible to be a member of such a body and
it is clear from the provisions of the Act, its scheme as also from the very
concept which gave birth to protection of Human Rights.
The Act has been enacted to provide for better protection of human
rights and for matters connected therewith or incidental thereto. The
statement of objects and reasons notes that the human rights embodied in
international covenant on Civil and Political Rights and the international
covenant on Economic, Social and Cultural Rights, adopted by the General
Assembly of the United nations on 16th December, 1966, stand
substantially protected by the Constitution of India. However, there has
been growing concern in the country and abroad about issues relating to
human rights. Having regard to this, changing social realities and
emerging trends in the nature of crime and violence, Government has
been reviewing the existing laws, procedures and system of administration
of justice, with a view to bringing about greater accountability and
transparency in them, and devising efficient and effective methods of
dealing with the situation. Taking into account the views of all concerned,
the Act was enacted.
The "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 [Section
2(1)(d)]. "International Covenants" means the International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights adopted by the General Assembly of the United
Nations on the 16th December, 1966 [Section 2(1)(f)]. Besides two
members to be appointed from amongst persons having knowledge of or
practical experience in, matters relating to human rights as provided in
clause (d) of Section 3(2), it is stipulated that Commission shall consist of
(a) a Chairperson who shall have been a Chief Justice of the Supreme
Court; (b) one member who is, or has been, a Judge of the Supreme
Court; and (c) one Member who is, or has been the Chief Justice of a High
Court. A high powered Committee consisting of \026 (a) the Prime Minister;
(b) Speaker of the House of the People; (c) Minister in-charge of the
Ministry of Home Affairs in the Government of India; (d) Leader of the
Opposition in the House of the People; (e) Leader of the Opposition in the
Council of States; and (f) Deputy Chairman of the Council of States, has
been entrusted with the responsibility to make recommendations for
appointment of Chairperson and other members, as provided in Section
4(1) of the Act. In the event of the occurrence of any vacancy in the office
of the Chairperson, any one of the members can be authorized to act as
the Chairperson until the appointment of a new Chairperson to fill such
vacancy.
Section 11 of the Act provides that Central Government shall make
available to the NHRC (a) an officer of the rank of the Secretary to the
Government of India who shall be the Secretary-General of the
Commission; and (b) such police and investigative staff under an officer
not below the rank of a Director General of Police and such other officers
and staff as may be necessary for the efficient performance of the function
of the Commission.
The functions and powers of the Commission have been set out in
Part III of the Act. Section 12 whereof, inter alia, provides that the
Commission shall have power to review the safeguards provided by or
under the Constitution or any other law for the time being in force for the
protection of human rights and recommend measures for their effective
implementation and study treaties and other international instruments on
human rights and make recommendations for their effective
implementation. The Commission is also empowered to require any
person, subject to any privilege which may be claimed by that person
under any law for the time being in force, to furnish information on such
points or matters as, in the opinion of the Commission, may be useful for,
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or relevant to, the subject-matter of the inquiry and any person so required
shall be deemed to be legally bound to furnish such information within the
meaning of Sections 176 and 177 of the Indian Penal Code [Section
13(2)].
The power to conduct any investigation pertaining to the inquiry has
been provided for in Section 14 of the Act. The special investigation teams
can be constituted for the purposes of investigation and prosecution of
offences arising out of violation of human rights in the manner provided in
Section 27 of the Act.
Chapter V deals with constitution of State Human Rights
Commission and matters related thereto including appointment of
Chairperson and other members and functions of the said Commission.
The NHRC is a unique expert body in itself has been amplified in
Paramjit Kaur v. State of Punjab & Ors. [(1999) 2 SCC 131]. The
judgment sets out how the Chairman and other two members, postulated
by clauses (a) to (c) of Section 3(2) of the Act, throughout their long tenure
get opportunities to consider, expound and enforce the fundamental rights
and how they are, in their own way, experts in the field.
Having noticed salient features of the Act, it can be seen that the
aspect of investigation is only one part which has been dealt with
separately, the other part being the decision making power and functions
of Commission separately dealt with. Let us now note the development at
international level which ultimately led on the passing of the Act. The
consideration at the international level on the establishment and
functioning of national institutions can provide a backdrop to an
understanding of the Act. Articles 1, 55, 56, 62, 68 and 76 of the UN
Charter provide the basis for recognition, elaboration of the contents of the
standards and the machinery for implementing the protection of human
rights. The General Assembly of the United Nations adopted on 10th
September, 1948 a universal declaration of human rights. The
international covenant on civil and political rights, the international
covenant on economic, social and cultural rights adopted by the General
Assembly of the United Nations on 16th December, 1966 formed a bedrock
of international recognition of human rights.
In the year 1991, the United Nations sponsored meetings of
representatives of National Institutions in Paris wherein a detailed set of
principles on the status of National Human Rights Institutions was
developed. The principles developed therein are commonly known as
’Paris principles’. Paris principles were subsequently endorsed by the
United Nations Commission on Human Rights and the United Nations
General Assembly. The six criteria of National Human Rights Institutions
under Paris principles are:-
"(a) Independence guaranteed by the Statute or
constitution.
(b) Autonomy from Government.
(c) Pluralism in membership.
(d) Broad mandate based on human rights
standards.
(e) Adequate power of State.
(f) Sufficient resources."
The Paris principles set out the principles relating to the status and
functioning of National Institutions for protection and promotion of human
rights. In respect of composition and guarantees of independence and
pluralism, it provides that :
"The composition of the national institution and
the appointment of its members, whether by
means of an election or otherwise, shall be
established in accordance with a procedure which
affords all necessary guarantees to ensure the
pluralist representation of the social forces (of
civilian society) involved in the protection and
promotion of human rights, particularly by powers
which will enable effective cooperation to be
established with, or through the presence of,
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representative of :
non-governmental organizations responsible for
human rights and efforts to combat racial
discrimination, trade unions, concerned social
and professional organizations, for example,
associations of lawyers, doctors, journalists and
eminent scientists;
Trends in philosophical or religious thought;
Universities and qualified experts;
Parliament;
Government departments (if they are included,
these representatives should participate in the
deliberations only in an advisory capacity)."
In regard to structure of such institutions, the guidelines, inter alia,
recommended that they would be so designed as to reflect in their
composition, wide cross sections of the nation thereby bringing all part of
that population into the decision making process in regard to the human
rights.
India is a party to aforesaid covenants. Indian Constitution
guarantees essential human rights in the form of fundamental rights under
Part III and also directive principles of State Policy in Part IV which are
fundamental in the governance of the country. Freedoms granted under
Part III have been liberally construed by various pronouncement of this
Court in last half a century in favour of the subjects also, keeping in view
the international covenants. The object has been to place citizens at a
central stage and State being highly accountable.
The main question is whether Section 3(2)(d), is to be read keeping
in view Paris principles. If it is to be so whether a former member of Police
force or member of any Security Forces as a class, are ineligible to
become members of the Commission.
The investigation under the Act has been separately dealt with in the
manner provided in Sections 11, 14 and 37. A Police officer may be very
good investigator. He may have vast experience in respect of the nature
of commission of crime and consequentially its prevention. But, for the
present purposes what is relevant to be borne in mind is that number of
cases reported to NHRC relate to acts of omission and commission by the
members of such forces. In this regard, reference can be made to NHRC
Report for the year 2001-02. That report shows that large number of
cases relating to custodial deaths and police encounter deaths came up for
enquiry and consideration before the Commission. The officers of these
forces while being members of service necessarily come across such
cases. An individual officer may be very good but something inbuilt in
service as a class is the relevant consideration. The Commission has also
to deal with type of cases, which officers had sometimes to defend, on
account of nature of their service. Further, the knowledge or practical
experience in relation to commission of crime, investigation and solving a
crime which may show violation of human rights is one thing and the
knowledge or experience relating to protection of life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the
international covenants and enforceable by courts in India is altogether
different. The requirement of the section is of latter and not former.
Paramjit Kaur’s case (supra), gives an indication as to what type of
knowledge or practical experience in matter of human rights, the Act has in
contemplation so as to make a person eligible to be appointed as a
member of the Commission. We have to consider the eligibility of a person
who has to become a part of the decision making process of NHRC and
not the process of investigation which commission may direct to be
conducted. The exclusion of the category under consideration seems
evident when seen as to who are included in the light of Paris principles,
namely, representatives of non-governmental organizations
responsible for human rights and efforts to combat racial
discrimination, trade unions, concerned social and professional
organizations, for example, associations of lawyers, doctors,
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journalists eminent scientists; trends in philosophical or religious
thoughts; universities and qualified experts; and parliament.
Regarding the Government departments, their representation in the
deliberations is only in advisory capacity. The scheme of the Act is to
protect and implement human rights including those envisaged in Article
21 of the Constitution and International Covenants. The functions include
understanding and dissemination of knowledge on human rights. The
members referred in Section 3(2)(d) are required to have the knowledge
and practical experience in matters relating to human rights of the type
expected from those covered under Section 3(2)(a),(b) and (c). Reference
may also be made to Section 7 which provides that in the event of the
occurrence of any vacancy in the office of the Chairperson, any one of the
members may be authorized to act as the Chairperson until the
appointment of a new Chairperson. The person to be appointed under
Section 3(2)(d) should also be one who can act as a Chairperson under
contingency contemplated by Section 7 o the Act.
The Union of India, in its counter affidavit, has mentioned certain
cases investigated by respondent No.2 during his tenure as a Police
officer, which includes among other Punjab Massacre case. It has also
been stated that respondent No.2 is a Vice-President (Asia) of Interpol, an
international police organization in which capacity, it is claimed, he is
involved in developing mechanisms for police cooperation in investigation
and prosecution of crimes across borders including terrorism, human
safety and human trafficking, which are all offences against human rights.
Union of India in the counter affidavit claims that :
"During the course of their careers, police officers
garner in vast practical experience in police
methodology, investigative techniques and other
practical matters relating to human rights. It is
submitted that such experience would inter alia
aid the Commission in identifying cases of police
mal-practice and the Commission would be able
to look behind cases of cover up and attempts to
shield guilty police officers. It is, therefore,
submitted that Respondent No.2 has adequate
knowledge and practical experience in matters
relating to human rights, qualifying him for
appointment to the Commission under Section
3(2)(d) of the Act."
The expertise in investigation cannot be confused with expertise in
the matters relating to human rights. Two are entirely different. For
investigation, police and investigating staff is available to the Commission.
The Commission can also require any person to furnish information on
such points or matters as may be useful for, or relevant to, the subject
matter of inquiry. It may utilise services of any officer or investigating
agency as stipulated in Section 14 of the Act for the purpose of conducting
any investigation pertaining to the inquiry. The Central Government is
required to make available to the Commission such police and
investigating staff under an officer not below the rank of Director General
of Police and such other officers and staff as may be necessary for the
efficient performance of the functions of the Commission.
While construing the provisions of the statute, the nature and object
of the statute cannot be overlooked. In these matters, the aspect of public
perception cannot be altogether overlooked. The statute of the nature
under consideration are based on public confidence. It cannot be
overlooked that notwithstanding the exemplary role of police and security
forces, there have been many instances of excesses by the members of
the forces leading to public unrest and deteriorating public faith. The issue
is not whether all are fully true or not but is what exists in the public mind
and whether there is some justification.
An individual Police officer may be very good but his participation in
decision making as a member of the Commission is likely to give rise to a
reasonable apprehension in the minds of the citizens that he may sub-
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consciously influence the functioning of the Commission. Such reasonable
perception of the affected parties are relevant considerations to ensure the
continued public confidence in the credibility and impartiality of institution
like NHRC.
What has been said about the institution of judiciary in P.K. Ghosh,
IAS and Anr. v. J.G. Rajput [(1995) 6 SCC 744] can also be applied for
considering the institution like NHRC. It was said that credibility in the
functioning of justice delivery system and the reasonable perception of the
affected parties are relevant considerations to ensure the continuance of
public confidence in the credibility and impartiality of the judiciary.
Assuming two constructions of Section 3(2)(d) are reasonably
possible, the construction which promotes public confidence, advances the
cause of human rights and seeks to fulfill the purpose of international
instruments has to be preferred than the one which nullifies it. Ambiguity,
if any, in the statutory provision is required to be removed by judicial
process to advance the cause of protection of human rights.
The observations in P.N. Duda v. P. Shiv Shanker & Ors. [(1988) 3
SCC 167] that ’After all it cannot be denied that predisposition or subtle
prejudice or unconscious prejudice or what in Indian language is called
’sanskar’ are inarticulate major premises in decision making process’ are
quite apt in the present context.
On the aspect of sub-conscious mind, what Justice Frankfurter said
for not participating in the decision of Public Utilities Commission of the
District of Columbia, Capital Transit Company & Washington Transit
Radio, Inc. v. Franklin S. Pollak & Guy Martin. [343 US 451], is quite
enlightening. It reads:-
"The judicial process demands that a judge move
within the framework of relevant legal rules and
the covenanted modes of thought for ascertaining
them. He must think dispassionately and
submerge private feeling on every aspect of a
case. There is a good deal of shallow talk that
the judicial robe does not change the man within
it. It does. The fact is that on the whole judges
do lay aside private views in discharging their
judicial functions. This is achieved through
training, professional habits, self-discipline and
that fortunate alchemy by which men are loyal to
the obligation with which they are entrusted. But
it is also true that reason cannot control the
subconscious influence of feelings of which it is
unaware. When there is ground for believing that
such unconscious feelings may operate in the
ultimate judgment, or may not unfairly lead others
to believe they are operating, judges recuse
themselves. They do not sit in judgment. They
do this for a variety of reasons. The guiding
consideration is that the administration of justice
should reasonably appear to be disinterested as
well as be so in fact." (Emphasis supplied)
The aforesaid passage has been quoted with approval in Ranjit
Thakur v. Union of India & Ors. [(1987) 4 SCC 611]
When a Police officer is a member of NHRC, the question to be
asked is not to his bias but is the impression of a reasonable right minded
person and the confidence the Commission would generate as a result of
participation of a person of such a background.
The principles laid in aforesaid decisions can be reasonably applied
for considering the question in issue in relation to NHRC which is headed
by a person who held the position of the head of the judiciary and has the
assistance of a former Chief Justice and Judge of the highest court of the
country.
In respect of violations of human rights during investigation, in D.K.
Basu v. State of West Bengal [(1997) 1 SCC 416], grave concern was
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expressed by this Court in respect of persons who were supposed to be
the protectors of the citizens and committed violence under the shield of
uniform and authority in the four walls of a Police Station or lockup, the
victims being totally helpless. It will be useful to note what was said in
para 18 which reads :
"However, in spite of the constitutional and
statutory provisions aimed at safeguarding the
personal liberty and life of a citizen, growing
incidence of torture and deaths in police custody
has been a disturbing factor. Experience shows
that worst violations of human rights take place
during the course of investigation, when the
police with a view to secure evidence or
confession often resorts to third-degree methods
including torture and adopts techniques of
screening arrest by either not recording the arrest
or describing the deprivation of liberty merely as a
prolonged interrogation. A reading of the morning
newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in
custody of police or other governmental agencies
is indeed depressing. The increasing incidence of
torture and death in custody has assumed such
alarming proportion that it is affecting the
credibility of the rule of law and the administration
of criminal justice system. The community rightly
feels perturbed. Society’s cry for justice becomes
louder."
The Court also took note of various other security forces and other
agencies where too there were instances of torture and death in custody.
N.C. Doundial v. Union of India & Ors. [(2004) 2 SCC 579] was a case
where the Commission enquired into violation of human rights by officials
of CBI.
Respondent No.2 has been a Police Officer throughout his service
career. We assume that he was a very efficient officer and investigated
many cases including complicated and sensitive cases but what is relevant
for the present purpose is the ’sanskar’, to borrow, words from P.N.
Duda’s case, i.e., conscious or sub-conscious bias in favour of
investigating agencies.
Once again, we wish to make it clear that neither we are
condemning any force nor upright officers of which there is no dearth, but
are examining the confidence the community at large is likely to generate
on officers of such services being appointed as member of the
Commission, particularly, when the language of Section 3(2)(d) does not
admit of only one interpretation. When two interpretations are possible,
the interpretation which promotes the object of the Act and public
confidence deserves to be adopted.
The question can also be examined from another angle. The
knowledge or experience of a police officer of human rights violation,
represents only one facet of human right violation and its protection,
namely, arising out of crime. Human Right violations are of various forms
which besides Police brutality is \026 gender injustice, pollution,
environmental degradation, mal-nutrition, social ostracism of Dalits etc.
Police officer can claim to have experience of only one facet. That is not
the requirement of the section.
Let us also note some of the decisions, in which drawing aid from
international covenants, law enacted by Indian Parliament was construed
and relief of protection of human rights was given.
In Makinnon Mackenzie and Co. Ltd. v. Audrey D’Costa [(1987)
SCC 469], this Court considered the case of a "confidential lady
stenographer" who complained that she and other women stenographers
who are in the service of a company were being paid lower emoluments
than their male counterparts. Taking note of the fact that India is a party to
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the international convention concerning equal remuneration for men and
women for work of equal value (the Equal Remuneration Convention,
1951), the Court adopted a principle embodied in the Convention to
construe a law enacted by the Parliament, the Equal Remuneration Act,
1976 to grant relief to the petitioner therein by holding the action of the
employer to be an unconstitutional violation of the principles of equal pay
for equal work.
In Sheela Barse v. Secretary, Children’s Aid Soceity [(1987) 3
SCC 50 at 54], the petitioner complained about the state of affairs in an
observation home for children. While issuing directions to the State of
Maharashtra, it was held by this Court that the international instruments
which had been ratified by India and which elucidated norms for the
protection of children cast an obligation on the State to implement their
principles. The Court said:
"Children are the citizens of the future era. On the
proper bringing up of children and giving them the
proper training to turn out to be good citizens depends
the future of the country. In recent years, this position
has been well realized. In 1959 the Declaration of all
the rights of the child was adopted by the General
Assembly of the United Nations in Article 24 of the
International Covenant on Civil and Political Rights,
1996, the importance of the child has been
appropriately recognized. India as a part to these
International Charters having ratified the Declaration, it
is an obligation of the Government of India as also the
State machinery to implement the same in the proper
way."
In the aforesaid case, this Court traveled one step further than in
Makinnon Mackenzie and made not merely a reference to an international
convention but a stronger expression of the binding nature of its
obligations.
The endeavour of this Court to ensure a virtual judicial incorporation
of treaty law into the corpus juris is demonstrated by its opinion in Vishaka
v. State of Rajasthan [AIR 1997 SC 3011 at 3015], in the following
words:
"The meaning and content of the fundamental
rights guaranteed in the Constitution of India are
of sufficient amplitude to encompass all the facets
of gender equality including prevention of sexual
harassment or abuse. Independence of judiciary
forms a part of our constitutional scheme. The
international conventions and norms are to be
read into them in the absence of enacted
domestic law occupying the field when there is no
inconsistency between them. It is now an
accepted rule of judicial construction that regard
must be had to international conventions and
norms for construing domestic law when there is
no inconsistency between them and there is a
void in the domestic law."
Again in People’s Union for Civil Liberties v. Union of India &
Anr. [(1997) 3 SCC 433], dealing with the criticism against reading of
conventions and covenants into the national laws, it was opined :
"For the present, it would suffice to state that the
provisions of the covenant, which elucidate and
go to effectuate the fundamental rights
guaranteed by our Constitution, can certainly be
relied upon by courts as facets of those
fundamental rights and hence, enforceable as
such. So far as multilateral treaties are
concerned the law is, of course, different \026 and
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definite."
Thus, international treaties have influenced interpretation of Indian
law in several ways. This Court has relied upon them for statutory
interpretation, where the terms of any legislation are not cear or are
reasonably capable of more than one meaning. In such cases, the courts
have relied upon the meaning which is in consonance with the treaties, for
there is a prima facie presumption that Parliament did not intend to act in
breach of international law, including State treaty obligations. It is also well
accepted that in construing any provision in domestic legislation which is
ambiguous, in the sense that it is capable of more than one meaning, the
meaning which conforms most closely to the provisions of any international
instrument is to be preferred, in the absence of any domestic law to the
contrary. In this view, Section 3(2)(d) is to be read keeping in view Paris
Principles. Further, the proposal to appoint police officers on two earlier
occasions was dropped when Chairperson of NHRC expressed his opinion
against appointments of such persons.
Thus, construing Section 3(2)(d) of the Act, police officer would be
ineligible to be appointed as a member of NHRC.
The challenge to the appointment of respondent No.2 was also
made on two other grounds, namely, (1) Absence of effective consultation
with the Committee members and, therefore, the recommendation was not
in accord with Section 4 of the Act and (2) breach of established norm of
consultation with the Chairperson of NHRC.
Facts relevant for considering aforesaid grounds have already been
noticed. Under Section4 every appointment has to be made after obtaining
the recommendations of a Committee. The requirement of Section is not
of ’consultation’ but of recommendation of the Committee. It is true that
the recommendations are required to be made after taking into
consideration all relevant factors eschewing irrelevant factors. Since
notice of the meeting had been given to Leader of Opposition in the
Council of States, it cannot be said that the recommendations of the
Committee would stand vitiated as a result of his non-participation. There
is nothing to even suggest that any request for deferring the meeting was
made. Undoubtedly, for meaningful and purposeful recommendation,
there ought to be complete disclosure of relevant factors considering that
the appointment is being recommended for a highly expert body in relation
to protection of human rights. The members of the Committee were not
informed that on earlier two occasions, the views of the Chairperson of the
NHRC were asked and since the Chairperson was opposed to the
appointment of a member of the force, the proposal was dropped. It is,
however, unnecessary to examine its effect in view of the answer to the
main question.
Regarding the second ground, namely, the requirement of
consultation with the Chairperson of the NHRC for appointment of
members under Section 3(2)(d), the fact that the opinion of the
Chairperson was sought on earlier two occasion would not tantamount to
setting up of a convention requiring the Chairperson to be mandatorily
consulted. Section 4 also does not postulate consultation with the
Chairperson. However, having regard to the position of the Chairperson
and the laudable objects the Commission is serving, its functions being of
far reaching public impact, we hope that till the amendment of the Act, the
Central Government would consider developing a healthy convention of
consulting the Chairperson regarding the appointment of the members and
placing the opinion of the Chairperson before the Committee. We may
also note that long time back the Commission had written to the
Government suggesting amendments in the Act and incorporating a
provision for mandatory consultation with the Chairperson regarding
appointment of the members, but the matter still seems to be pending
consideration of the Government. It deserves to be expedited.
Before parting, we reiterate that this Court should not be understood
to have condemned, in any manner, the Police officers or members of
Security Forces. They are, indeed, doing great service to the nation.
Many of the officers in these services have dealt with most difficult and
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intricate situations and problems and have contributed a lot in their
solution. The question considered by us is only in the context of their
expertise in the matters relating to human rights within the meaning of
Section 3(2)(d) read with Paris principles. We also wish to place on record
our appreciation for the assistance rendered by Mr. Gulam E. Vahanvati,
learned Solicitor General on request made by this Court.
In view of the aforesaid discussion, the appointment of respondent
No.2 as member of the National Human Rights Commission is declared
null and void but it shall not affect the validity of the decisions taken while
he was a member of the Commission.
The petition is allowed accordingly and the rule made absolute.