THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO.32893 OF 201.22-03-2012 S. Satyam Reddy Union of India, Rep by its Secretary, Law and Justice,New Delhi and 3 others Counsel for the Petitioner : Sri S. SATYAM REDDY Counsel for the Respondents: SRI PONNAM ASHOK GOUD - ASST. SOLICITOR GENERAL GOVERNMENT PLEADER FOR GAD Gist: Head Note: CITATIONS: ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This writ petition is instituted for declaring Section 3(2)(a) and Section 21(2)(a) of the Protection of Human Rights Act, 1993, in so far as they restrict the choice of appointment for the offices of Chairperson of National Human Rights Commission and State Human Rights Commissions respectively to a retired Chief Justice of India and retired Chief Justice of High Court respectively as arbitrary, illegal and ultra vires Constitution of India and further to set- aside the appointment of the fourth respondent as Chairperson of the Andhra Pradesh State Human Rights Commission, notified through G.O.M.S.No.622 General Administration Department (Human Rights Commission) dated 23.11.2011.
2. The writ petitioner is a respected senior member of the Bar. With a public spirit for securing broader choice for consideration for offices of Chairpersons of the National Human Rights Commission and State Human Rights Commissions, he has instituted the present writ petition.
3. Since India is a party to the International Covent on Civil and Political Rights and the International Covent on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations on 16.12.1966 and in view of the international obligations to legislate, the Protection of Human Rights Act, 1993, for short 'The Act', has come to be enacted. Section 3 of the Act which dealt with the constitution of National Human Rights commission required the Central Government to constitute a body to be known as 'The National Human Rights Commission' to exercise the powers conferred upon and to perform the functions assigned to it under the Act. Sub-section 2 of Section 3 dealt with the composition of the Commission and required the Commission to comprise of five members. It is to be headed by a Chairperson who has been a Chief Justice of the Supreme Court, while one of the members ought to be a Judge of the Supreme Court, while the other should have been a Chief Justice of a High Court. The remaining two members are to be appointed from amongst persons having knowledge or practical experience in matters relating to human rights. Sub- section 3 requires the Chairperson of the National Commission for Minorities, The National Commission for Scheduled Castes and Scheduled Tribes and the National Commission for Women to be the members of the commission for discharge of functions specified in Clauses (b) to (j) of Section 12. Similarly, Section 21 of the Act requires every State Government to constitute a body to be known as the State Human Rights Commission to perform the functions assigned to such a body by the Act. Sub-section 2 dealt with the composition of the State Commission. Of the five members of the Commission, the Chairperson should be one who has functioned as a Chief Justice of a High Court, one other member ought to have functioned as a Judge of the High Court, while another ought to have functioned as a District Judge. Two other members are required to be appointed from amongst persons having knowledge or practical experience in matters relating to human rights. Section 4 of the Act requires the President to appoint the Chairman and other members of the National Commission, after obtaining the recommendations of a Committee consisting of the Prime Minister as the Chairman of the said Committee and the Speaker of the House of the People, Minister in- charge of the Ministry of Home Affairs in the Government of India, Leader of the Opposition in the House of the People, Leader of the Opposition in the Council of States and Deputy Chairman of the Council of States as the other members of the said Committee. Similarly, Section 22 enabled the Governor of the State to appoint the Chairperson and the other members. After obtaining the recommendations of the Committee consisting of the Chief Minister, Speaker of the Legislative Assembly, Minister in-charge of the Department of Home, Leader of the Opposition in the Legislative Assembly and wherever there is a Legislative Council, the Chairman of that Council and the Leader of the Opposition in that Council shall also form part of the Selection Committee. Thus, both Section 3(2) as well as Sub-section 2 of Section 21 mandated that the Chairperson of the National Commission shall be a person who functioned as Chief Justice of the Supreme Court and insofar as the State Commission, a person who was a Chief Justice of a High Court.
4. Validity to these provisions is challenged in this writ petition especially for restricting the choice to only a very limited group who have functioned as the Chief Justice of the Supreme Court or Chief Justice of High Courts, as the case be. This narrow choice provided by the statute, according to the petitioner, amounts to exclusive reservation to the limited class and shutting out the other eminent persons in the field of Human Rights or Civil Liberties from becoming a Chairperson. These provisions, according to the petitioner, also run counter to the basic principles of openness of competition and competence based selection, and above all, temperamental suitability. These provisions, according to the petitioner, leave a temptation behind, for those who have functioned as Chief Justices to tow the line of the Government while in office as Chief Justice, so as to be in the reckoning for assignment later on as a Chairperson. There is no rational principle behind choosing the Chief Justices alone for these posts when, there is no dearth of persons with established credentials for the pioneering work carried out by them for protecting the Human Rights of our countrymen. Further, by virtue of the provisions contained under Section 6 and Section 24, the Chairperson and the members of the National Commission or the State Commission, as the case may be, cannot hold office beyond the age of 70 years and consequently the choice of their selection gets narrowed down and in the matter of appointment of a Chairperson a situation may arise where, there may not be many eligible persons who may be willing to take up the said assignment.
5. It is also contended by the petitioner that, the case of no other Chief Justice, except, the fourth respondent was considered for appointment as Chairperson of the State Human Rights Commission thus, reflecting that the State Government and the Selection Committee constituted in terms of Section 22 are only interested in appointing the fourth respondent from the very beginning. It was further contended that, considering only one name when there is a large pool of Chief Justices of High Courts eligible for holding the post of Chairperson of the State Human Rights Commission is available and appointing this sole candidate so considered as Chairperson amounts to abdicating the powers conferred upon the second and third respondents by the Act. The third respondent/Selection Committee has failed to discharge its functions properly and objectively by not recommending the name of a proper person to be the Chairperson. It was further contended that the Chairperson of the State's Human Rights Commission should be a person who can become accessible easily for the people to meet and narrate their grievances and he should be a person who should be able to understand the language spoken to by vast majority of the complainants. It is pointed out that, 95% of the complaints are lodged in the local language, namely Telugu and by virtue of respondents 2 and 3 choosing a person who can neither speak nor understand Telugu language, they have only ensured that the State's Human Rights Commission does not function very effectively. This apart, the fourth respondent has been provided with 'Z Category' security and consequently, he is surrounded by the specially trained armed forced personnel who will be causing hindrance for people to gain free access to him. Thus, the very objective of the statue to provide an effective mechanism for grievance redressal of the citizens against Human Rights violations is completely ignored. It was further contended that, the second and the third respondents have not bestowed any attention on the work culture traits of the fourth respondent as a Chief Justice of the High Court of Andhra Pradesh and consequently, grossly erred in making the selection of the fourth respondent.
6. The State Government, at our request, has made available the original file bearing number 157/HRC/A-2/2011, for our perusal. The State Government addressed the High Court and obtained on 08.02.2011 the updated list of retired Chief Justices of High Court of Andhra Pradesh along with their dates of birth and their present residential addresses. Further, the State Government has gathered the necessary information and prepared a list of 50 names of former Chief Justices of various High Courts as well as Judges of the Supreme Court, who are proposed to be considered for appointment as Chairperson of the State's Human Rights Commission. Though, we wound not wish to note down all their names, but however, we have noticed that, names of the following Honourable Chief Justices and / or Judges of the Supreme Court have been considered. Amongst them are: i. Hon'ble Sri Justice B. Sudershan Reddy, who functioned as Chief Justice of Guwhati High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 08.07.2011. ii. Hon'ble Sri Justice R.V. Raveendran, who functioned as Chief Justice of Madhya Pradesh High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 15.10.2011. iii. Hon'ble Sri Justice Markandey Katju, who functioned as Chief Justice of Madras High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 19.09.2011. iv. Hon'ble Sri Justice H.S. Bedi, who functioned as Chief Justice of Bombay High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 05.09.2011. v. Hon'ble Sri Justice V.S. Sirpurkar, who functioned as Chief Justice of Calcutta High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 21.08.2011. vi. Hon'ble Sri Justice J.M. Panchal, who functioned as Chief Justice of Rajasthan High Court prior to his elevation as a Judge of the Supreme Court and who retired as such on 5.10.2011. vii. Hon'ble Sri Justice Ajit Prakash Shah, retired Chief Justice of Madras High Court. viii. Hon'ble Sri Justice Jawahar Lal Gupta, former Chief Justice of Kerala High Court. ix. Hon'ble Sri Justice Nauvdip Kumar Sodhi, former Chief Justice of Kerala High Court. x. Hon'ble Sri Justice Rajeev Gupta, former Chief Justice of Kerala High Court. xi. Hon'ble Sri Justice V.K. Bali, retired Chief Justice of Kerala High Court. xii. Hon'ble Sri Justice S.R. Bannurmath, former Chief Justice of Kerala High Court. xiii. Hon'ble Sri Justice Sujeet Roy, former Chief Justice of Orissa High Court. xiv. Hon'ble Sri Justice Bilal Nazki, former Chief Justice of Orissa High Court. xv. Hon'ble Sri Justice N.K. Jain, former Chief Justice of Karnataka High Court. xvi. Hon'ble Sri Justice K.R. Vyas, former Chief Justice of Bombay High Court. xvii. Hon'ble Sri Justice Nissar Ahmed Kakru, former Chief Justice of Andhra Pradesh High Court. Thus, apart from the fourth respondent, several others were included in the list of Hon'ble Judges prepared and proposed for appointment as Chairperson of the State's Human Rights Commission. Thereafter, the Principal Secretary to the Government (Political) GAD through his communication dated 17.11.2011 intimated rest of the members of the Selection Committee that the Hon'ble Chief Minister desires to hold a meeting of the Selection Committee at 4.30 P.M on 22.11.2011 in his office chambers at Secretariat building for recommending a suitable name for Governor for appointment as Chairperson of the State's Human Rights Commission. Accordingly, the meeting was convened under the Chairmanship of the Hon'ble Chief Minister and the meting was attended to by the remaining five members. The Committee has been circulated with the list of Chief Justices together with their details. Thereafter, discussions took place amongst the members and finally the Committee recommended the name of the fourth respondent for appointment as Chairperson of the State Human Rights Commission. His Excellency The Governor, after studying the file, has accorded his approval to the recommendation made by the Committee on 23.11.2011 and accordingly the appointment of the fourth respondent was notified. It is, therefore, manifestly clear that the assertions made by the petitioner to the contra have no basis.
7. We, therefore, confine our scrutiny to the contentions canvassed with regard to how far the narrow choice for selection and appointment of Chairperson would vitiate the exercise.
8. The legislative policy behind the Act is clearly discernable. The statute has conferred very wide ranging powers upon the Human Rights Commission both at the National Level and State Level with far-reaching implications. The statute maker wanted to send a message, loud and clear, that, there will be zero tolerance towards Human Rights violations in this country. It has put in place various remedial measures for prevention of any such violations and hence, conferred power to inquire suo-motu or on a petition, not only of violation of human rights or abatement thereof, or even negligence exhibited by a public servant in prevention of such violation. A mere look at Sub-section (b) of Section 12 clearly brings out the reach of powers conferred upon the National Human Rights Commission by providing for intervention in any proceeding involving any allegation of violation of human rights pending before a Court, of course with the approval of such Court. Powers were also conferred to review the safeguards provided by or under the constitution or any law for the time being enforced for the protection of Human Rights and to recommend measures for their effective implementation. Power was also conferred upon the National Commission to review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures and the intimation to the State Government concerned. The National Human Rights Commission has got the power to visit any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make necessary recommendations obviously for further improvements to be carried out there. The National Human Rights Commission was also conferred power to study treaties and other international instruments on human rights and to make recommendations for their effective implementation in our country. These powers conferred by the statute clearly demonstrate the spread of canvass for securing and putting in place such measures which ensure the maximum protection of human rights for our countrymen. The best practices adopted world over can also be brought in for securing further improvement of our own practices and standards. When such was the sweep of powers, the Commission is therefore required to be constituted with persons who held very high constitutional offices earlier, so that all aspects of good governance and adjudicatory practices and procedures would be too familiar to them. It does not call for a second opinion, that the extraordinary quantum of maturity achieved through hard grinding work and intellectual application coupled with fiercely independent qualities exhibited for resolving complicated and competing claims over a long stretch of time alone can make one reach the position of the Chief Justice of Supreme Court. The vast quantum of learning and wisdom earned in the process, tempered with an extraordinary balance makes one reach the outstanding position to hold the high office of Chief Justice and discharge the functions to the great satisfaction of all. This is the obvious reason why the policy of the legislation weird around such a person to be appointed as a Chairperson. Persons who have risen in life to hold such offices seldom look for anything beyond thereafter. If an offer comes their way, may be, they would not be reluctant to stretch their extraordinary working schedule even in their retired life, more for the sake of contributing benefits to the society at large by putting to further use all their experience and wisdom, thus far gained. We are clearly averse to the notion that such men can be ever tempted into accepting those offices quite easily. They may be gently persuaded into accepting another office after their retirement in the best interests of the society. We have therefore no hesitation to reject the contention that the choice of limited number of retired Chief Justices vitiates the selection procedure for appointing the Chairpersons.
9. Further, apart from entry 13 of list I of the VII Schedule, Article 253 of our Constitution has conferred exclusive power on the Parliament to make any law for implementing any treaty, agreement or convention with any other countries or to give effect to any decision made at any international conference, association or other body. Therefore, the legislative wisdom behind this piece of legislation has manifested by confining the choice of selections of Chairpersons to persons who held the offices of Chief Justices. The expediency of such a policy choice or even the notion that, a better policy could have been evolved, is clearly not justiciable. The Writ Court has no role to enter upon the charter of assessment of good, bad or indifferent nature of the legislative wisdom. We are clearly of the view that, we cannot sit in appeal over such policy choices of the legislature and at the same time, we also feel that it is out of bounds for a Writ Court to weigh the possible pros and cons of the legislative policy and test it on the supposed beneficial or equitable purposes sought to be achieved in the process. Every piece of legislation takes its form and final shape after enormous amount of debate and intellectual contribution. The propriety or justness of a statute is very much within the realm of legislative activity and the same cannot be called in question in a Writ Court, so long as it does not run counter to any of the guaranteed fundamental rights or any other provisions of the constitution or another law. It is a very well established principle of law that, so long as the legislative policy is clear and unambiguous, the consideration that weighed with the choice of the legislature is an irrelevant factor. It is not for the Courts to suggest as to what best alternative methods are available for achieving the stated legislative goal in preference to the choice exercised by the legislature. The notion that, there can be scope for improvement or availability of an attractive and efficacious alternative method for securing the desired result, is not an issue which can be taken into consideration or account for invalidating a piece of legislation. Hence, we reject the contention canvassed by the petitioner that confining the choice to those who have held the office of Chief Justices and omitting to consider the cases of eminent personalities who carried on laudable work in the field of Human Rights or Civil liberties for appointment as Chairperson of a Human Rights Commission is bad.
10. The petitioner has also raised a contention about the failure of the third respondent/Committee in properly discharging its functions in the matter of selection of a Chairperson. In a democratic system of governance, there is bound to be always a struggle for power. Those who are not in office will constantly endeavor to oust from office those who formed the Government for the time being. In a Parliamentary system of governance, it is the opposition which wages the most visible form of the struggle for ceasing the power by constantly putting to test the policies adopted by those who are in power. From the time the system of parliamentary governance emerged, rapid strides for its improvement and efficacy have been made. One of the significant achievements of this evolving process was the recognition conferred upon the role liable to be played by the opposition on the floor of the Legislature. As an off-shoot of this concept, the leader of the opposition is sought to be taken along with by those who form the Government, particularly in matters relating to decisions of larger public importance. Therefore, the leader of the opposition has come to be associated with the decision making process. The leader of opposition therefore takes a careful measure of the intended action and only when he finds that the larger public interest would be satisfactorily met with, would he be according approval to the measures sought to be adopted by those who formed the Government. The role of the leader of the opposition in a Parliamentary democracy is no less difficult than that of the leader of the House himself. Thus, while performing his duties and obligations, the leader of the opposition is always conscious of his present day position but also of his aspirations for tomorrow. This is the primary reason why the Selection Committee comprised of the leaders of the opposition in both the houses of the legislature. The very presence of such men in the Selection Committee brings out not only transparency to the entire exercise but it effectively neutralizes the prospects of the Government in power pushing through any hidden agenda. Therefore, we cannot concur with the views canvassed by the petitioner.
11. For all the aforesaid reasons, we have not found any infirmity, illegal or otherwise, in the selection and appointment of the fourth respondent as the Chairperson of the Andhra Pradesh State's Human Rights Commission.
12. The writ petition is dismissed but we prefer not to impose costs. __________________________ GHULAM MOHAMMED, J ________________________________ NOOTY RAMAMOHANA RAO, J