http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10

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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

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.