People - Court Judgment

Excerpt:
constitution - protection of human rights act, 1993 - sections 2(1), 3(2), 4, 4(1), 7, 11, 11(1), 12, 14, 27, 37 - constitution of india - article 21 - indian penal code - sections 176, 177 - equal remuneration act, 1976 - appointment of a member of national human rights commission - eligibility of former member of police force for becoming a member of nhrc - nhrc to consist of two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights under section 3(2)(d) - vacancy arising in nhrc in november 2003 - respondent 2, a police officer retiring as director of central bureau of investigation in december 2003 recommended for appointment as a member of commission - selection of respondent 2 to be appointed as member of nhrc - appointment challenged on ground of ineligibility of a police officer for being considered for appointment under category contemplated by section 3(2)(d) - difference of opinion between two judges - as per v.k. sabharwal, j. construing section 3(2)(d) in context of police officers' expertise in matters relating to human rights read with paris principles, police officer would be ineligible to be appointed as a member of nhrc - dissenting opinion expressed by dharamadhikari, j. holding that selection of a high ranking police officer known for high integrity and character with record of commendable service could not be held beyond purview of section 3(2)(d) - merely because there being instances of human rights violations by some members of police was no ground to exclude all police officers as a class from membership of commission and that police officers dealing with crimes such as human rights violations, as investigators, as protectors of law or as prevention of such crimes could not be held disqualified for membership of nhrc - matter referred to a larger bench in view of difference of opinion between two judges - [y.k. sabharwal and; d.m. dharmadhikari, jj.] the question that arose on appeal before the supreme court was whether a former member of the police force was eligible to become a member of nhrc under section 3(2)(d) of the protection of human rights act, 1993. the challenge to the appointment of r-2, a retired senior police officer, as a member of nhrc in this petition, was based on this fundamental issue and not on any allegations of a personal nature against him. the contention was that none from the police or security forces was eligible to be a member of such a body and this was clear from the provisions of the act, its scheme, and also from the very concept which gave birth to the protection of human rights. referring the matter to a larger bench due to disagreement on this bench, the supreme court.per y.k. sabharwal, j. - the 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 a high degree of public confidence. while construing the provisions of the statute, the nature and object of the statute cannot be overlooked. it cannot be overlooked that notwithstanding the exemplary role of the 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 therefor. 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 citizens that he may subconsciously influence the functioning of the commission. such reasonable perceptions of the affected parties are relevant considerations to ensure the continued public confidence in the credibility and impartiality of an institution like nhrc. after all, it cannot be denied that predisposition or subtle prejudice or unconscious prejudice or what is called “sanskar” are inarticulate major premises in decision-making process. 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 fulfil 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 the judicial process to advance the cause of protection of human rights. thus construing section 3(2)(d) of the act, a police officer would be ineligible to be appointed as a member of nhrc. international treaties and instruments have influenced interpretation of indian law in several ways. the supreme court has relied upon them for statutory interpretation, where the terms of any legislation are not clear 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 or the provisions of any international instrument in the absence of any law to the contrary, for there is a prima facie presumption that parliament did not intend to act in breach of international law, including state treaty obligations. in this view, section 3(2)(d) is to be read keeping in view the paris principles [set out in para 13 herein]. the 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 pronouncements of the supreme court in the last half a century, keeping in view the international covenants to which india is a party [set out in para 12 herein]. the object has been to place citizens at a central stage and make the state highly accountable. mackinnon mackenzie and co. ltd. v. audrey d'costa, (1987) 2 scc 469 : 1987 scc (l&s) 100; sheela barse v. secy., children's aid society, (1987) 3 scc 50 : 1987 scc (cri) 458; vishaka v. state of rajasthan, (1997) 6 scc 241 : 1997 scc (cri) 932 : air 1997 sc 3011; people's union for civil liberties v. union of india, (1997) 3 scc 433 : 1997 scc (cri) 434, relied on the scheme of the act is to protect and implement human rights including those envisaged in article 21 of the constitution and the international covenants to which india is a party [set out in para 12 herein]. the functions include understanding and dissemination of knowledge on human rights. the members referred to in section 3(2)(d) are required to have knowledge and practical experience in matters relating to human rights of the type expected from those covered under sections 3(2)(a), (b) and (c). the person to be appointed under section 3(2)(d) should also be one who can act as a chairperson under the contingency contemplated by section 7 of the act.  the aspect of investigation is only one part which has been dealt with separately in the scheme of the act, in sections 11, 14 and 37; the other part being the decision-making power and functions of the commission. expertise in investigation cannot be confused with expertise in the matters relating to human rights. the two are entirely different. a police officer may be a 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 a 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 a large number of cases relating to custodial deaths and police encounter deaths came up for inquiry and consideration before the commission. the officers of these forces, while being members of their service necessarily come across such cases. an individual officer may be very good but something inbuilt in a service as a class is the relevant consideration. the commission has also to deal with types of cases, which officers have sometimes to defend, on account of nature of their service. human rights violations are of various forms which besides police brutality are — gender injustice, pollution, environmental degradation, malnutrition, social ostracism of dalits, etc. a police officer can claim to have experience of only one facet. 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 section 3(2)(d) is of the latter and not the former. paramjit kaur case, (1999) 2 scc 131, p. 137, paras 10 and 11, gives an indication as to what type of knowledge or practical experience the act has in contemplation in the matter of human rights, so as to make a person eligible to be appointed as a member of the commission. what has to be considered is 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 the 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 the paris principles [set out in paras 13 and 18 herein]. paramjit kaur v. state of punjab, (1999) 2 scc 131 : 1999 scc (cri) 109, referred to p.k. ghosh v. j.g. rajput, (1995) 6 scc 744; p.n. duda v. p. shiv shanker, (1988) 3 scc 167 : 1988 scc (cri) 589; public utilities commission of the district of columbia, capital transit co. & washington transit radio, inc. v. franklin s. pollak & guy martin, 343 us 451 : 96 l ed 1068 (1951); ranjit thakur v. union of india, (1987) 4 scc 611 : 1988 scc (l&s) 1 : (1987) 5 atc 113, relied on d.k. basu v. state of w.b., (1997) 1 scc 416 : 1997 scc (cri) 92; n.c. dhoundial v. union of india, (2004) 2 scc 579 : 2004 scc (cri) 587, referred to respondent 2 has been a police officer throughout his service career. it is assumed 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”, conscious or subconscious bias in favour of investigating agencies. the appointment of respondent 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. however, the supreme 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 the most difficult and intricate situations and problems and have contributed a lot in their solution. the question considered 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 the paris principles and the confidence that is likely to be generated in the community at large, on officers of such services being appointed members of nhrc, particularly, when the language of section 3(2)(d) does not admit of only one interpretation.per d.m dharmadhikari, j.  - public perception, to which learned brother y.k. sabharwal, j. has given great importance, of the police as a force, can change only if high-ranking police officers with exemplary record of service and of integrity are given chance to act as members of the commission. 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. 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 section 3(2)(d) of the act. international law and guidelines have been taken aid of by the supreme court in interpreting domestic law only if it has found some gap to be filled in the latter or the provisions of domestic law are not clear and do not wholly carry the meaning and effect of international law which it intends to implement. the paris principles are at best merely in the nature of guidelines to be followed by covenanting countries who are parties to the resolutions taken in the international conferences on human rights. there is no obligation on acceptance of the paris principles, to incorporate them word by word in statutory law. in the paris principles, a pluralistic composition of the commission has been advised. contrary to the paris principles of a pluralistic composition of the commission, under the act, in respect of membership, judges have a majority§ a real pluralistic composition ought to include in its membership judges, human rights activists, scientists, academicians and even experienced police officers and social researchers. the paris principles can at best be taken aid of to understand and interpret the provisions of the act but not to substitute or supplement it. the expression “from amongst persons having knowledge of, or practical experience in, matters relating to human rights” as used in section 3(2)(d) is wide enough to allow the selection committee constituted under section 4 to select any suitable person, who in the opinion of the selection committee, possesses knowledge and practical experience in matters of human rights. the expression and the language used in section 3(2)(d) neither expressly nor by implication, exclude suitable police officers with high record of experience and integrity. the selection committee is a pluralistic body comprising elected representatives of the people and political parties in power and in opposition. the perception of the selection committee regarding fitness of a particular person chosen for membership, by considering him to be possessing required knowledge and practical experience in the matters relating to human rights, cannot be faulted by the court by substituting its own opinion for the opinion of the selection committee. such a course of action is not legally permissible to the court. the court cannot sit over the selection of the selection committee unless there is found to be any infraction of law under which the selection was made. 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. judges, by the very nature of their office and duties, with the life of seclusion expected of them, not only for independence but also for appearance of independence, renders them almost “cut off” from society. they lose touch with ground realities existing in the society. their knowledge in matters relating to human rights is hearsay i.e. through the cases that happen to come before them in the law courts and which they get a chance to deal with and decide as judges on the seat of the court. their lack of practical experience in the field of human rights is required to be supplemented by such members of the commission who are either actively in public life or directly dealing with the incidents and occurrences of violations of human rights. such persons, as envisaged by use of a wide language in section 3(2)(d), may include reputed human rights activists or high-ranking police officers who have acquired experience in investigation and prevention of human rights violations. human rights violations, to a great extent, are crimes punishable under different kinds of criminal laws. police officers dealing with such crimes as investigators, as protectors of law or as preventers of such crimes cannot be held to be disqualified or considered unsuitable for membership of the commission. in their capacity as members of the staff for aiding and assisting the commission in discharge of its functions under section 11(1)(b) of the act and otherwise there are and would be several police officers who are directly dealing with human rights violations and thereby get a chance to acquire necessary knowledge and practical experience in the field of human rights by virtue of their duties. police officers who have aided and assisted the commission in discharge of its functions, gain knowledge and experience in the same field for being chosen to act as members under section 3(2)(d). such officers as aid and assist nhrc, and others are seen working courageously on occurrences and events relating to human rights. apart from the knowledge of investigative techniques, from the very nature of their job and functions, they acquire knowledge as to how and where human rights are violated. they also know what preventive action is required to be taken and what course has to be adopted for protection of human rights. a police officer qua purely a police officer, with no knowledge or practical experience in handling matters of human rights, may be found unfit to be chosen as member but a police officer with necessary knowledge and experience in matters of human rights cannot be held to be disqualified merely because he is a police officer. there are instances in india itself where police officers working in terrorist areas or for jail reforms have received national and international recognition and awards. construing section 3(2)(d) narrowly by excluding from its purview police officers altogether would deprive the chance of serving as members of the commission to even police officers with record of exemplary service in the field of human rights. to disqualify them completely would have a demoralising effect on the police force as such. the statutory provisions under section 3(2)(d), from their plain language do not disqualify respondent 2 from holding the position of member of nhrc. the record of service of respondent 2 does not in any way disqualify him for appointment as member of the commission. his record of service shows his knowledge and practical experience in matters relating to human rights. it is another thing to make a general statement that for membership under section 3(2)(d), well-known human rights activists or members of reputed ngos who are actively involved in the field of human rights would have been better choices but the court is concerned only with the legality of the appointment and not the wisdom of the selection body. merely because a more suitable person ought to have been chosen is no ground to invalidate the appointment of respondent 2 who cannot be held to be disqualified under section 3(2)(d). he has, in fact, served on the commission for a period of almost one year.  y.k. sabharwal, j.- 1. the 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 a 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. 2. nhrc has been set up under provisions of the protection of human rights act, 1993 (for short “the act”). its composition is provided for 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.  3. 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 13-2-2004, convening a meeting for 19-2-2004. 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 for recommendation of the name of respondent 2. likewise, the speaker of the house of the people also expressed inability to attend the meeting but conveyed his approval to the appointment of respondent 2. insofar as the 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 19-2-2004 wherein it was decided to recommend the name of respondent 2 to be appointed as a member of the commission. the committee noticed that the leader of opposition in the house of the people and the speaker had both conveyed their approval for the said recommendation. thus on 19-2-2004, respondent 2 was selected to be appointed as a member of nhrc.  4. 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 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.  5. 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 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 16-12-1966, 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, the 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.  6. “human rights” mean 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” mean 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 16-12-1966 [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 the 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 - (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 authorised to act as the chairperson until the appointment of a new chairperson to fill such vacancy.  7. section 11 of the act provides that the central government shall make available to nhrc (a) an officer of the rank of 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.  8. 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, 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 penal code [section 13(2)].  9. the power to conduct any investigation pertaining to the inquiry has been provided for in section 14 of the act. 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.  10. chapter v deals with constitution of the state human rights commission and matters related thereto including appointment of chairperson and other members and functions of the said commission.  11. nhrc is a unique expert body in itself has been amplified in paramjit kaur v. state of punjab1. 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.  12. 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 the commission separately dealt with. let us now note the development at the international level which ultimately led to 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 on 10-9-1948 adopted 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 16-12-1966 form a bedrock of international recognition of human rights.  13. 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”. the 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 the paris principles are: “(a) independence guaranteed by the statute or constitution. (b) autonomy from the government. (c) pluralism in membership. (d) broad mandate based on human rights standards. (e) adequate power of the state. (f) sufficient resources.”  14. 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 a 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, representatives of: non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, social and professional organisations concerned, 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).”  15. 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 parts of that population into the decision-making pr