2005 Supreme(SC) 94

2005(1) Supreme 454
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal and D.M. Dharmadhikari, JJ.
People’s Union for Civil Liberties —Petitioner
versus
Union of India & Anr. —Respondents
Writ Petition (C) No. 105 of 2004
Decided on 18-1-2005
Counsel for the Parties :
For the Petitioner : Rajinder Sachar, Sr. Advocate, Sanjay Parikh, Ashok Bhan, A.K. Misra and A.N. Singh, Advocates.
For the Respondent No. 1 : Goolam E. Vahanvati, Solicitor General, Gopal Subramanium, T.S. Doabia, Sr. Advocates, A. Subba Rao, Devadatt Kamat, Ms. Lavanya Raghunathan Fischer, Chinmoy Pradip Sharma and Ms. Sushma Suri, Advocates.
For the Respondent No. 2 : Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Kritiman Singh and Saurabh Mishra, Advocates.
For the Intervenor : Ms. Indira Jaisingh, Sr. Advocate, Mrs. Farheen Syeed Kapra and Badri Prasad Singh, Advocates.

Important pointOn the question as to whether a former member of the Police Force is eligible to become a member of the National Human Rights Commission, in view of difference of opinion between the two Judges of the Supreme Court, the matter is referred to a larger Bench.

Headnote:Protection of Human Rights Act, 1993—Sections 3(2), 4, 11 and 14—Appointment of a member of National Commission—Eligibility of a police ­officer for being considered for appointment—Whether a former member of the Police Force is eligible to become a member of the NHRC—(No, as per Y.K. Sabharwal, J.)—(Yes, as per Dharmadhikari, J.)—Difference of opinion between the two Judges—Matter is referred to a larger Bench.

       As per Y.K. Sabharwal, J. :

       Held : 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. (Para 4)

       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 of the Act. (Para 18)

       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-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. (Paras 21 and 22)

       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. (Para 28)

       Thus, construing Section 3(2)(d) of the Act, police officer would be ineligible to be appointed as a member of NHRC. (Para 42)

       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 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. (Paras 45 to 47)

       As per Dharmadhikari, J.

       The statutory provisions under Section (3)(2)(d) from its plain language, in my considered opinion, do not disqualify respon­dent No. 2 from holding the position of member of the National Human Rights Commission. (Para 50)

       Merely because there are instances of human rights violations by some members of the police is no ground to exclude all police officers as a class from the membership of the Commission. The ‘Paris Principle’ can at best be taken aid of to understand and interpret the provisions of the Act but not to substitute or supplement it. In my view, selection of a high ranking police officer known for high integrity and character with record of commendable service cannot be held to be beyond the purview of sec 3(2)(d) of the Act. Section 3(2)(d) empowers the Selection Committee to induct 2 members other than judges, having knowledge and practical experience in matters relating to human rights. Judges, by the very nature of their office and conduct, no doubt, as members not only make the Commission an independent body but also impart it an appearance of independence. Yet, as the membership of the Commission has to be of a pluralistic complexion, induction by selection of members, either from the police force or public would in no manner adversely affect the independence, efficacy or functioning of the Commission. A police officer, on his appointment to the Commission, would enjoy same rights and independence of action as other members do. With utmost respect, I fail to agree with the observations and conclusions of learned Brother that under the provisions of sub-section (2) of Section 3, police officers are not intended to be included in the membership of the National Human Rights Commission. (Paras 58, 59 and 60)