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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: 29/04/2005

BENCH:

S.B. Sinha, N. Santosh Hegde & B.P. Singh

JUDGMENT:

J U D G M E N T

SANTOSH HEGDE, J.

In this writ petition filed under Article 32 of the Constitution

of India, the petitioner is challenging a decision of the first

respondent Union of India appointing the respondent No.2 as a

member of the National Human Rights Commission (the

Commission). The primary basis of the challenge to his

appointment is on the ground that prior to the impugned

appointment the second respondent was holding the post of

Director, Central Bureau of Investigation and was also holding the

post of Vice-President (Asia) Interpol. According to the petitioner,

the appointment of a person who served in the police force as a

Member of the N.H.R.C. is contrary to the provisions of the

Protection of Human Rights Act, 1993, (the Act), apart from being

opposed to the very aims and objects for which the said

Commission was constituted. The petitioner urges that such

appointment would undermine the status and international

recognition of the Commission as an institution for protection of

human rights. It is also urged that the appointment of the second

respondent is also opposed to the Constitution of India on the

grounds that it is arbitrary and violative of Article 14. It is

submitted that it is also violative of international covenants. For

this purpose the petitioner has heavily relied on the principles laid

down in the meeting of representatives of the national institutions

in Paris wherein certain principles were evolved in regard to

protection of human rights which principles came to be known as

"Paris Principles". According to the petitioner, these principles

were subsequently endorsed by the U.N. Commission of Human

Rights and the U.N. General Assembly. The petitioner further

contends that the U.N. Resolution dated 19.12.1993 concerning

national institutions for protection of human rights, the compliance

of the Paris Principles has become mandatory and since the Paris

Principles prohibited the appointment of a civil servant like a

Police Officer to such a Commission, such appointment of the

second respondent would send wrong signals to the international

community as well as to the United Nations. The petitioner also

urges that the appointment of the second respondent has been made

without consulting the Chairperson of the Commission which was

the practice since the inception of the Commission. It is also urged

that such appointment would have a direct impact on the effective

implementation of human rights and fundamental rights enshrined

in the Constitution including the right to life under Article 21.

According to the petitioner, under Section 3 (2) (d) of the Act, two

members of the Commission should have knowledge of, and

practical experience in matters relating to human rights; which

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definition has been defined under section 2(d) of the Act to mean :

"Human Rights means the rights relating to life,

liberty, equality and dignity of the individual

granted by the Constitution or embodied in the

International Covenants and enforceable by Courts

in India."

According to the petitioner, a person who headed a

prosecution agency cannot be taken as a person who has

knowledge of, or practical experience in matters relating to human

rights. The petitioner also urges that the appointment of second

respondent as a member of the Commission could lead to potential

conflict of interest between the CBI and the Commission as the

Commission is often called upon to decide on complaints of

violation of fundamental rights by the CBI and also the police.

According to the petitioner, the appointment of respondent No.2

destroys the independence of the Commission.

The first respondent, Union of India, in its counter opposed

the writ petition contending that the appointment of the second

respondent as a Member of the Commission is in accordance with

the Act and the second respondent is qualified to be a member of

the Commission under the Act. The first respondent contends that

the composition of the Commission is provided under section

3(2)(d) of the Act which provides that a person having knowledge

of and practical experience in matters relating to human rights is

eligible for such appointment. It is further submitted that

respondent No.2 is a distinguished Officer of the Indian Police

Service, having retired as the Director of CBI. It is submitted that

in the course of his career between 1966 and 2003, he has had

occasions to supervise the investigation and prosecution of several

offences including the serious offences against human rights. As an

example the first respondent has stated that as the Director of CBI,

the second respondent was responsible for investigating the

Punjab mass cremation cases and the Gujarat riot cases; both of

which involved serious violation of human rights. It was also

submitted that as an institution, the CBI is often entrusted by this

Court to conduct inquiries into sensitive matters where violation of

human rights is involved and the second respondent has been a part

of such investigations. It is also pointed out by the learned Solicitor

General appearing for the Union of India that the petition does not

make any personal allegation against the second respondent as to

any act of violation of human rights either by him personally or as

being party to such violation. It is also submitted that the second

respondent as the Vice-President (Asia) Interpol has been involved

in developing mechanism in Police cooperation and prosecution of

crimes across borders including terrorism, human safety and

human trafficking which are all offences against human rights. The

first respondent has submitted that there is no illegality in

appointing an Officer of the Indian Police Service as a member of

the Commission. It is further stated that on the contrary, very often

during the course of their careers Police Officers garner vast

practical experience in Police methodology, investigative

techniques and other practical matters relating to human rights

enforcement. It is submitted that such experience would, inter alia,

aid the Commission in identifying the areas of Police malpratices

and the Commission will be able to look behind the causes of

cover-up and attempts to shield the guilty Police Officers.

It is denied that the appointment of second respondent would

send wrong signals to the international community or to the United

Nations. The first respondent states that though on a prior occasion

the Chairperson of the Commission was consulted in regard to the

appointment of a former police officer of the Indian Police Service

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and the said Chairperson had expressed his disagreement on such

appointment, such consultation is not mandatory in all cases; more

so in the background of the fact that statute does not require any

such consultation. Therefore, non-consultation with the

Chairperson of the Commission would not in any manner vitiate

the appointment of the 2nd respondent. The first respondent also

denied the argument advanced by the petitioner that there has been

a violation of Article 14 of the Constitution in the appointment of

the second respondent. Relying on the judgment of this Court in

R.K. Jain v. Union of India, (1993 4 SCC 119), it is submitted that

the judicial review in the matter of appointments is confined to the

area of examining whether the appointee possesses the statutory

qualifications or not and such power of judicial review does not

extend to re-assessing the merit of the particular appointee. It is

also contended that the provisions of the Act are in conformity

with the Paris Principles and neither Paris Principles nor the U.N.

Resolution prohibit a former civil servant or a Police Officer from

becoming a member of the Human Rights Commission. More

importantly, it is submitted that once the Indian Legislature enacts

a law pursuant to an international convention then the legislative

area in that field being covered it is the municipal law alone that

prevails hence, the validity of the appointment of second

respondent can only be examined with reference to the provisions

of the Act.

This petition came up for consideration before a Bench of

two learned Judges of this Court. Since the said two learned Judges

had a difference of opinion in regard to the question involved, by

their reasoned order, they referred the matter to a larger Bench

because of which the matter is now before this Bench of three

Judges.

Having heard learned counsel for the parties and on the basis

of their pleadings and arguments recorded hereinabove, at the

outset we must notice that neither the Paris Principles nor the U.N.

Resolution and much less the Act does either expressly or

impliedly exclude the inclusion of a Police Officer in the

Commission. The argument of the petitioner is that taking into

consideration the object of the Act and the public perception of the

Police as violators of human rights, Section 3 (2) (d) should be so

interpreted to exclude Police Officers from becoming members of

the Commission. We do not think such an interpretation is

permissible when the statute is express in its language. We should

note herein that there is no challenge to the validity of the Act,

therefore, we will have to proceed on the basis that the Act is intra

vires. From the argument of the learned counsel for the petitioners,

the question for consideration is whether Section 3 (2) (d) of the

Act requires any interpretation or a construction which would

exclude Police Officers from becoming member of the

Commission. Section 3(2)(d) which refers to two members to be

appointed to the Commission reads thus :

"two Members to be appointed from amongst persons

having knowledge of, or practical experience in,

matters relating to human rights."

A plain reading of this Section does not give any room for

interpretation because the language is quite clear. In our view it

only means that any two persons having knowledge of, or practical

experience in, matters relating to human rights are eligible to be

Members of the Commission. This clear language of the Section

cannot be distorted by any inference based on any public

perception or prejudice. It is relevant to note herein that this

Section does not exclude any class of persons so long as they have

the knowledge of, or practical experience in, matters relating to

human rights which is a requirement to be satisfied by the

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Selection Committee. In the absence of any clear and specific

exclusionary provision in the statute, the court should plainly treat

it as a general provision instead of delving in search of any

possible hidden or implied exclusion. It was so said in A.R.

Antulay v. Ramdas Sriniwas Nayak & Anr. (1984 2 SCC 500).

While so saying this Court in para 18 of the said judgment held

that "It is a well-established canon of construction that the court

should read the section as it is and cannot rewrite it to suit its

convenience; nor does any canon of construction permit the court

to read the section in such manner as to render it to some extent

otiose. x x x The Legislature provided for both the positive and the

negative. It positively conferred power on Special Judge to take

cognizance of offences and it negatively removed any concept of

commitment. It is not possible therefore, to read Section 8(1) as

canvassed on behalf of the appellant that cognizance can only be

taken upon a police report and any other view will render the

safeguard under Section 5-A illusory."

If we apply the said principle of law to the facts of the case,

there being no exclusion in section 3(2)(d) of the Act and the

language being clear, we cannot by looking back into the Paris

Principles or the U.N. Resolution interpret an exclusionary clause

to keep the Police Officers from being the Members of the

Commission in spite of the Act not providing for the same.

Having dealt with the provisions of the Act in regard to the

qualification of two members to be appointed under section 3(2)(d)

of the Act, we will now refer to the argument of public perception

about the Police about which lengthy arguments supported by

various judgments of the Court have been addressed by the learned

counsel for the petitioner. Learned counsel for the petitioner

submitted that it is a well known fact that Police force all over the

world especially in India are the biggest violators of human rights

hence it would be doing violence to the object of the Act if a Police

Officer is selected as a Member of the Commission. Having very

carefully gone through the entire Statement of Objects and

Reasons of the Act, we do not find that the objects as reflected in

the Act indicate towards a perception of the Police force of the

country as a violator of human rights. Further the objects of the

Act do not envisage an exclusion of the members of any force

from being considered for membership of the Commission.

Learned counsel for the petitioner did place reliance on a number

of reported cases of this Court, in support of his contention that the

judicial and public perception of the Police force in India is such

that the Police force is considered as the biggest violator of

human rights. He relied on the judgment of this Court in Paramjit

Kaur v. State of Punjab & Ors. (1999 2 SCC 131), D.K. Basu etc.

v. State of West Bengal etc. (1997 1 SCC 416), Munshi Singh

Gautam (D) & Ors. v. State of M.P. (2004 10 JT 547), N.C.

Dhoundial v. Union of India & Ors. (2004 2 SCC 579). He also

placed reliance on the report of the National Human Rights

Commission (Annual Report 2001-02 at page 362). Learned

Solicitor General opposing this contention of the petitioner

submitted that the cricism of the Police in the abovesaid judgments

of the Court is based on the facts of each one of those cases and

none of the judgments cited hereinabove has in terms said that the

Police force in India as an institution is a violator of human rights.

He submitted that the Police force has more than 2.2 million

personnel working under various conditions prevailing in different

parts of the country. It is possible that some of them commit

violation of human rights but that would not ipso facto make each

and every police personnel by presumption, a violator of human

rights. Such an inference, according to learned Solicitor General,

would amount to expressing an institutional bias in regard to an

institution which many a times has rendered meritorious service to

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the nation, both in maintaining law and order, investigation of

crimes and facing various other internal and external threats. He

submitted that such a general condemnation of an institution like

the Police force would only demoralise the said force, consequence

of which could be disastrous. In our opinion the learned Solicitor

General has rightly relied on certain passages from the judgment of

this Court in The State of Uttar Pradesh v. Mohammad Naim (AIR

1964 SC 703) wherein this Court had deprecated the practice of

courts making sweeping and general observations against the entire

Police force of a State though the case related to only one Police

Officer. In such a situation, this Court held that such general

remarks were neither justified on the facts of the case nor were

they necessary for disposal of the said case, hence, expunged such

general remarks.

While we cannot take exception in regard to the remarks

made against the Police in each one of the above cases relied on by

the learned counsel for the petitioner, we certainly feel that these

remarks cannot be so generalised as to make every personnel of the

force, consisting of nearly of 2.2 million people, violators of

human rights solely on the ground that out of thousands of cases

investigated and handled by them, in some cases the personnel

involved have indulged in violation of human rights. Learned

counsel for the petitioner, however, contended that the judgments

apart, the public perception of the Indian Police force as a whole is

so poor that it considers the Police as an organisation to be a

violator of human rights. Therefore, selecting a retired police

officer as a member of the Commission would lead to erosion of

confidence of the people in the Commission. We are sincerely

unable to gauge this public perception or its magnitude so as to

import this concept of institutional bias. There are no statistics

placed before this Court to show that there has been any census or

poll conducted which would indicate that a substantial majority of

the population in the country considers the Police force as an

institution which violates human rights nor do we think that by

such generalisations we could disqualify a person who is otherwise

eligible from becoming a member of the commission.

Public displeasure as presently perceived is not confined to

the Police force only. The views expressed in the media very often

show that this displeasure is reflected against many a Department

of the Government including constitutional bodies and if public

displeasure or perception were to be the yardstick to exclude

people from holding constitutional or statutory offices then many

such posts in the country may have to be kept vacant.

Then again what is the yardstick to measure public

perception. Admittedly, there is no barometer to

gauge the perception of the people. In a democracy there

are many people who get elected by thumping majority to high

legislative offices. Many a times public perception of a class of

society in regard to such people may be that they are not desirable

to hold such post but can such a public opinion deprive such

people from occupying constitutional or statutory offices without

there being a law to the contrary ? There is vast qualitative

difference between public prejudice and judicial

condemnation of an Institution based on public perception. At

any rate, as stated above, public perception or public opinion

has no role to play in selection of an otherwise eligible

person from becoming a member of the Commission under the

Act.

A perusal of Section 4 of the Act shows that the appointment

of Chairperson and other members shall be made after obtaining

the recommendations of the Committee consisting of

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? The Prime Minister

? The Speaker of the House of People

? The Minister Incharge of the Ministry of Home Affairs in

the Government of India

? Leader of Opposition in the House of People

? Leader of Opposition in the Council of States

? Deputy Chairman of the Council of States.

Proviso to the above section further stipulates that no sitting

Judge of the Supreme Court or sitting Chief Justice of the High

Court shall be appointed except after consultation with the Chief

Justice of India. There is absolutely no requirement under the Act

that this Committee consisting of such high office holders of this

country should further consult the Chairman of the Commission

before appointing a member. The entire argument of the petitioner

in this regard rests on the fact that on some previous occasion the

Committee did consult the Chairperson of the Commission and in

the present case this was not done. We are in agreement with the

learned Solicitor General on this point that when a statute vests a

function in a Committee comprising of such high dignitaries

holding high constitutional positions, it would be impermissible to

read into the statute the requirement of consultation with the

Chairman of the Commission. The provision for appointment of

Chairperson and other members of the Commission contemplate a

self-contained procedure and no other mandatory provision can be

imported into the Act where none actually exists. The allegation

made by the petitioner in regard to non-consultation with the

Chairman in the appointment of second respondent is vague and

from the counter affidavit filed the same cannot be accepted.

It is nextly argued by the learned counsel for the petitioner

that there was no proper consultation amongst the members of the

Selection Committee. This is based on the fact that one of the

members who was then the leader of the Opposition in the House

of the People did not respond to the intimation sent to him in

regard to the selection of the members since he was in the hospital

at that point of time. A perusal of the Act does not show that there

is any quorum fixed for the selection nor does it provide for any

meeting nor any particular procedure has been provided.

Under the Act, consultation by circulation is

not impermissible. In such a situation, if one out of six

did not respond, it would not vitiate the opinion of the

other five Members. On the contrary sub-clause 2 of section 4

specifically says that no appointment of a Chairperson or a

member shall be invalid merely by reason of any vacancy in the

Committee. In the instant case the Prime Minister, the Speaker of

the House of the People, Minister Incharge of the Ministry of

Home Affairs in the Government of India, Leader of Opposition in

the House of People and Deputy Chairman of the Council of States

having agreed on the appointment of the second respondent, we

find no statutory error in the appointment of the second

respondent.

In the ordinary course the above analysis itself would have

been sufficient to dispose of this petition. However, since this

matter has been referred to this Bench due to the divergence of

views between Hon. Sabharwal and Dharmadhikari, JJ. it is in the

fitness of things that we note their judgments also and particularly

the judgment of Hon. Sabharwal, J. as our conclusions are different

from his conclusions.

In arriving at his decision Hon. Sabharwal, J. has treated the

Paris Principles and the U.N. General Assembly Resolutions as

covenants. Thereafter, he has applied the law applicable to

international covenants and imported the obligations under the

Paris Principles and the U.N. General Assembly Resolution as if

they are binding as legal obligations on India even in the municipal

context. While doing so he has relied upon the judgments of this

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Hon'ble Court in Mackinon Mackenzie v. Audrey D'Costa, AIR

1987 SC 1281; Sheela Barse v. Secretary, Children's Aid Society,

(1987) 3 SCC 50; PUCL v. UoI, (1997) 3 SCC 433; Vishaka v.

State of Rajasthan, (1997) 6 SCC 241.

Having noted the above we would with respect like to point

out that neither the Paris Principles nor the subsequent U.N.

General Assembly Resolution can be exalted to the status of a

covenant in international law. Therefore merely because India is a

party to these documents does not cast any binding legal obligation

on it. Further, all the above cases which Hon. Sabharwal, J. has

relied upon deal with the obligations of the Indian State pursuant to

its being a party to a covenant/ treaty or a convention and not

merely a declaration in the international fora or a U.N. General

Assembly Resolution.

Apart from the above, the fact that the field in relation to the

constitution of the NHRC is covered by an Act of the Indian

Parliament, it follows that neither the Paris Principles nor the U.N.

General Assembly Resolution can override the express provisions

of the Act. Therefore, we are not in agreement with the decision of

Hon. Sabharwal, J. After considering the views expressed by

Hon. Dharmadhikari, J. on this aspect of the case, we are in

agreement with the same.

For the reasons stated above this petition fails and is

dismissed.