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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.