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TMI Blog2005 (1) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealing 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 (a) the Prime Minister;(b) Speaker of the House of the People; (c) Minister in-charge of the Ministry of Home Affairs in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 Interpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of those fundamental rights and hence, enforceable as such. So far as multilateral treaties are concerned the law is, of course, different and 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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