# PEOPLE'S UNION FOR CIVIL LIBERTIES -+ v. UNION OF INDIA AND ANR

- **Citation:** [2005] 1 S.C.R. 494
- **Court:** Supreme Court of India
- **Decided:** 2005-01-18
- **Bench:** Y.K. Sabharwal, D.M. DHARMADHIKARl
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/people-s-union-for-civil-liberties-v-union-of-india-and-anr-20452
- **Pages:** 27

## Headnote

Protection of Human Rights Act, 1993-Section 3(2)(d)-National Human
Rights Commission-Members-Eligibility of Police Officer to be appointed
as Member-Held: Per Sabharwal, J-Not eligible-Per Dharmadhikari, J
·"'
c -Eligible-In view of difference of opinion, matter referred to a larger Bench.
One post of Member in the National Human Rights Commission
(NHRC) fell vacant. Respondent No.2, retired Director of Central Bureau
of Investigation (CBI) was recommended for the post. The appointment
D was required to be made after obtaining the recommendations of a
Committee. When a meeting was fixed, the Committee members informed
their inability to attend the meeting but conveyed their approval to
recommendation of the name of respondent No. 2. Thereafter, respondent
No.2 was appointed a Member of NHRC. His appointment is under
challenge on the ground that a Police Officer is not eligible to be member
E of such body in view of clear language of Section 3(1)(d) and the true intent
of the Act, its scheme as also from the very concept which gave birth to
protection of Human Rights; and that recommendation was in breach of
established norm of consultation with Chairman of NHRC.
F
Respondent No. 1 contended that respondent 2 has adequate
knowledge and practical experience in matters relating to human rights,
qualifying him for appointment to Commission; that Respondent No. 2
-1
during his tenure as a Police officer had investigated cases such as Punjab
Massacre case and Gujarat Riot cases which involved serious violation of
human rights; and that he is also the Vice-President (Asia) of Interpol,
G an international police organization in which capacity, he is involved in
developing mechanisms for police cooperation in investigation and
prosecution of crimes across borders including terrorism, human safety
and human trafficking, which are all offences against human rights.
y
Referring the matter to larger Bench, the court
H
494
~.
I
PEOPLE'S UNION FOR CIVIL LIBERTIES 1·. U.O.L
495
HELD: (By the Court): In view of the difference of opinion, the A
matter is referred to larger Bench. The matter deserves to be heard
expeditiously.
Per YK Sabharwal, J:
HELD: I. The appointment of respondent No.2 as member of the B
National Human Rights Commission is declared null and void. [515-C)
2. The Protection of Human Rights Act, 1993 was enacted to provide
for better protection of human rights and for matters connected therewith
--<
or incidental thereto. India is a party to international covenants on human
rights. Indian Constitution guarantees essential human rights in the form C
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 D
place citizens at a central stage and State being highly accountable. These
developments at international level ultimately led to the passing of the Act.
[503-A; 506-E-F; 505-A]
3.1. Investigation under the Act has been separately dealt with in
the manner provided in Sections 11, 14 and 37. A Police officer may be E
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 is that number of cases reported to
NHRC relate to acts of omission and commission by the members of such
forces. In this regard, reference is made to NHRC Report for the year p
2001-02 which shows that large number of cases relating to custodial
. .i.
deaths and police encounter deaths came up for enquiry and consideration
before the Commission. The officers of these forces while being members
of service necessarily come across such cases. An individual officer may
be very good but something inbuilt in service as a clas

## Text

_Characters 0–39,917 of 67,810. This is a partial read: ask again with offset=39917 for what follows._

A
PEOPLE'S UNION FOR CIVIL LIBERTIES
-+
v.
UNION OF INDIA AND ANR.
JANUARY 18, 2005
B
[Y.K. SABHARWAL AND D.M. DHARMADHIKARl,JJ.]
Protection of Human Rights Act, 1993-Section 3(2)(d)-National Human
Rights Commission-Members-Eligibility of Police Officer to be appointed
as Member-Held: Per Sabharwal, J-Not eligible-Per Dharmadhikari, J
·"'
c -Eligible-In view of difference of opinion, matter referred to a larger Bench.
One post of Member in the National Human Rights Commission
(NHRC) fell vacant. Respondent No.2, retired Director of Central Bureau
of Investigation (CBI) was recommended for the post. The appointment
D was required to be made after obtaining the recommendations of a
Committee. When a meeting was fixed, the Committee members informed
their inability to attend the meeting but conveyed their approval to
recommendation of the name of respondent No. 2. Thereafter, respondent
No.2 was appointed a Member of NHRC. His appointment is under
challenge on the ground that a Police Officer is not eligible to be member
E of such body in view of clear language of Section 3(1)(d) and the true intent
of the Act, its scheme as also from the very concept which gave birth to
protection of Human Rights; and that recommendation was in breach of
established norm of consultation with Chairman of NHRC.
F
Respondent No. 1 contended that respondent 2 has adequate
knowledge and practical experience in matters relating to human rights,
qualifying him for appointment to Commission; that Respondent No. 2
-1
during his tenure as a Police officer had investigated cases such as Punjab
Massacre case and Gujarat Riot cases which involved serious violation of
human rights; and that he is also the Vice-President (Asia) of Interpol,
G an international police organization in which capacity, he is involved in
developing mechanisms for police cooperation in investigation and
prosecution of crimes across borders including terrorism, human safety
and human trafficking, which are all offences against human rights.
y
Referring the matter to larger Bench, the court
H
494
~.
I
PEOPLE'S UNION FOR CIVIL LIBERTIES 1·. U.O.L
495
HELD: (By the Court): In view of the difference of opinion, the A
matter is referred to larger Bench. The matter deserves to be heard
expeditiously.
Per YK Sabharwal, J:
HELD: I. The appointment of respondent No.2 as member of the B
National Human Rights Commission is declared null and void. [515-C)
2. The Protection of Human Rights Act, 1993 was enacted to provide
for better protection of human rights and for matters connected therewith
--<
or incidental thereto. India is a party to international covenants on human
rights. Indian Constitution guarantees essential human rights in the form C
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 D
place citizens at a central stage and State being highly accountable. These
developments at international level ultimately led to the passing of the Act.
[503-A; 506-E-F; 505-A]
3.1. Investigation under the Act has been separately dealt with in
the manner provided in Sections 11, 14 and 37. A Police officer may be E
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 is that number of cases reported to
NHRC relate to acts of omission and commission by the members of such
forces. In this regard, reference is made to NHRC Report for the year p
2001-02 which shows that large number of cases relating to custodial
. .i.
deaths and police encounter deaths came up for enquiry and consideration
before the Commission. The officers of these forces while being members
of service necessarily come across such cases. An individual officer may
be very good but something inbuilt in service as a class is the relevant
consideration. The Commission has also to deal with type of cases, which G
officers had sometimes to defend, on account of nature of their service.
Further, 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 oflife, liberty, equality and dignity of the individual guaranteed H
496
SUPREME COURT REPORTS
[2005) I S.C.R.
A by the Constitution or embodied in the international covenants and
+ '
enforceable by courts in India is altogether different. The requirement of
the section is of latter and not former. [506-G-H; 507-A-C[
3.2. Question to consider is the eligibility of a person who has to
B
become a part of the decision making process of NHRC and not the process
of investigation which 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 Paris principles, namely, representatives
of non-governmental organizations responsible for human rights and
efforts to combat racial discrimination, trade unions, concerned social and
"
c professional organizations, for exam pie, associations of lawyers, doctors,
journalists eminent scientists; trends in philosophical or religious thoughts;
universities and qualified experts; and parliament. Regarding the
Government departments, their representation in the deliberations is only
in advisory capacity. (507-D-FI
D
3.3. The scheme of the Act is to protect and implement human rights
'1,,.
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
E experience in matters relating to human rights Of the type expected from
those covered under Section 3(2)(a),(b) and ( c). Section 7 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 •mtil
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
F contingency contemplated by Section 7 of the Act. (507-F-H; 508-A[
Paramjit Kaur v. State of Punjab and Ors.,(1999[ 2 2 SCC 131, referred
..
to.
G
3.4. The expertise in investigation cannot be confused with expertise
in the matters relating to human rights. These two are entirely different.
For investigation, police and investigating staff is available to the
Commission. The Commission can also require any person to furnish
information on such points or matters as may be useful for, or relevant
to, the subject matter of inquiry. It may utilise services of any officer or
H investigating agency as stipulated in Section 14 of the Act for the purpose
PEOPLE'S UNION FOR CIVIL LIBERTIES 1·. U.0.1.
497
of conducting any investigation pertaining to the inquiry. The Central A
Government is required to make available to the Commission such police
and investigating staff for the efficient performance of the functions of
the Commission. (508-E-GI
4.1. While construing the provisions of the statute, the object of the
statute and the aspect of public perception cannot be altogether B
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 C
or not but is what exists in the public mind and whether there is some
justification. (508-H; 509-Al
4.2. 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 D
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. (509-B-CI
P.K. Ghosh, !AS and Anr. v. JG. Rajput, (199516 sec 744, relied on. E
4.3. 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 than the one which nullifies it. Ambiguity,
if any, in the statutory provision is required to be removed by judicial F
'>
process to advance the cause of protection of human rights. (509-El
Ranjit Thakur v. Union of India and Ors., (1987) 4 SCC 611, referred
to.
Public Utilities Commission of the District of Columbia, Capital Transit G
Company & Washington Transit Radio, Inc. v. Franklin S. Pollak & guy
Martin, (343 US 451 (, referred to.
4.4. 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 H
498
SUPREME COURT REPORTS
(2005] I S.C.R.
A person and the confidence the Commission would generate as a result of
+ •
participation of a person of such a background. :510-DI
D.K. Basu v. State of West Bengal, 119971 l SCC 416 and N.C. Doundial
v. Union of India and Ors., 120041 2 SCC 579, referred to.
B
4.5. Respondent No.2 has been a Police Officer throughout his service
career. Assuming 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', i.e., conscious or sub-conscious bias
in favour of investigating agencies. 1511-DI
C
P.N. Duda V.P. Shiv Shanker and Ors., [19881 3 SCC 167, relied on.
5. The question can also be examined from another angle. The
knowledge or experience of a police officer of human rights violation,
represents only one facet of human right violation and its protection,
namely, arising out of crime. Human Right violations are of various forms
D which besides Police brutality is - gender injustice, pollution,
environmental degradation, mat-nutrition, social ostracism of Dalits etc.
Police officer can claim to have experience of only one facet. That is not
the requirement of the section. (511-GI
Makinnon Mackenzie and Co. ltd v. Audrey D 'Costa, (19871SCC469;
E Sheela Barse v. Secretary, Children's Aid Soceity, 1198713 SCC 50; Vishaka
v. Stale of Rajasthan, AIR (1997) SC 3011 and People's Union for Civil
liberties, v. Union of India and Anr., 119971 3 SCC 433, referred to.
6.1. While construing any provision in domestic legislation which is
ambiguous, in the sense that it is capable of more than one meaning, the
F 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
Principle~. Further, the proposal to appoint police officers on two earlier
occasions was dropped when Chairperson of NHRC expressed his opinion
G against appointments of such persons. Thus, construing Section 3(2)(d) of
the Act, police officer would be ineligible to be appointed as li member of
NHRC. 1513-F-HI
6.2. The fact that the opinion of the Chairperson was sought on
earlier two occasions would not tantamount to setting up of a convention
H requiring the Chairperson to be mandatorily consulted. The requirement
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.0.1.
499
-t
of Section is not of 'consultation' but of recommendation of the Committee. A
Since notice of the meeting had been given to Committee Members, it
cannot be said that the recommendations of the Committee would stand
vitiated as a result of non-participation. There is nothing to even suggest
that any request for deferring the meeting was made. Undoubtedly, for
meaningful and purposeful recommendation, there ought to be complete B
disclosure of relevant factors considering that the appointment is being
recommended for a highly expert body in relation to protection of human
rights. The members of the Committee were not informed that on earlier
two occasions, the views of the Chairperson of the NHRC were asked and
...,.
since the Chairperson was opposed to the appointment of a member of
the force, the proposal was dropped. [514-F, B, C-D]
c
Per D.M. Dharmadhikari, J:
l. The statutory provisions under Section (3)(2)(d) from its plain
language, do no disqualify respondent No. 2 from holding the position of
member of the NHRC. [515-E]
D
2.1. Judges by the very nature of their office and duties, render them
almost 'cut ofr 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 chance to deal and decide as judges in the seat E
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 active 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 F
>
Rights Activists or high ranking police officers who have acquired
experience in investigation and prevention of human rights violations.
(515-F-H; 516-A]
2.2. Human Rights violations, to a great extent, are crimes punishable
under different kinds of Criminal Laws. Police Officers dealing with such G
crimes as investigators, as protectors of law or as preventors of such crimes
cannot be held to be disqualified or considered unsuitable for membership
•
of the Commission. [516-C-DI
2.3. Public perception, of police as a force, can change only if the
high ranking police officers with exemplary record of service and of H
500
SUPREME COURT REPORTS
(2005] I S.C.R.
A integrity are given chance to act as members of the Commission. (516-GI
+
3. 'Paris Principle' is 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 'Paris Principle', to incorporate it word by word in statutory
B law. In the 'Paris Principle', a pluralistic composition of Commission has
been advised. Contrary to Paris Principle 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
with judges; human rights activists, scientists, academicians and even the
·,..
C experienced police officers and social researchers. 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. (517-B-DI
4. Police officers from the very nature of their job and function
D 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 <if human rights. 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
E 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 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
F completely would have a demoralizing effect on the police force as such.
[518-8, C-DJ
5. Selection Committee is a pluralistic body comprising of elected
representatives of the people and political parties in power and in
G 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. Such a course of actions is not legally permissible to the
court. The court cannot sit over the selection of the Selection committee
H unless there is found to be any infraction of law under which the selection
-t
PEOPLE'S UNION FOR CIVIL LIBERTIES i-. U.0.1. [SABHARWAL, J]
5QJ
was made. 1518-E-FI
6. Record of service of respondent no. 2 shows his knowledge and
practical experie.nce 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 the reputed NG Os 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
A
B
-.
appointment of respondent No. 2 who cannot be held to be disqualified
under Section 3(2)(d). 1520-A-q
C
ORIGINAL AP PELLA TE JURISDiCTION : Wrti Petition (C) No. I 05
of 2004.
(Under Article 32 of the Constitution of India).
Rajinder Sachar, Sanjay Parikh, Ashok Bhan, A.K. Misra and A.N. D
Singh for the Petitioner.
Goolam E. Vahanvati, Solicitor General, Gopal Subramanium, T.S.
Doabia, A. Subba Rao, Devadatt Kamat, Ms. Lavanya Raghunathan Fischer,
Chinmoy Pradip Sharma and Ms. Sushma Suri for the Respondent No. I.
E
Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Kritiman Singh
and Saurabh Mishra, for the Respond~nt No . 2.
Ms. Indira Jaisingh. Mrs. Farheen Syeed Kapra and Badri Prasad Singh.
for Intervenor.
The following Judgments/Order of the Court were delivered by
Y.K. SABHARWAL, J. National Human Rights Commission (NHRC)
is a high-powered statutory body to act as an instrument for the protection
F
and promotion of human rights. The credibility of such an institution depends G
upon high degree of pi,iblic 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.
NHRC has been set up under provisions of the Protection of Human
Rights Act, 1993 (for short 'the Act'). Its composition is provided in Section H
3(2) of the Act. The question for consideration in this petition is about the
502
SUPREME COURT REPORTS
[2005] I S.C.R.
A 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
B 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.
C
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,
D 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 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
to recommendation of the name of respondent No.2. Likewise, the Speaker
E of the House of People also expressed inability to attend the meeting but
conveyed his approval to the appointment of respondent No.2. Insofar as
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 19th February, 2004 wherein
it was decided to recommend the name of respondent No.2 to be appointed
F as a member of the Commission. The Committee noticed that the Leader of
Opposition in the House of People and the Speaker had both conveyed their
_.
approval for the said recommendation. Thus on 19th February, 2004,
respondent No.2 was selected to be appointed a Member of NHRC.
G
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
H the provisions of the Act, its scheme as also from the very concept which
PEOPLE'S UNION FOR CIVIL LIBERTIES r. U.0.1. [SABHARWAL, J.]
503
+
gave birth to protection of Human Rights.
A
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 international
covenant on Civil and Political Rights and the international covenant on
B
Economic, Social and Cultural Rights, adopted by the General Assembly of
the United nations on 16th December, 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, Government has been reviewing the existing laws, procedures and c
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.
The "Human Rights" means the rights relating to life, liberty, equality D
and dignity cif the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by Courts in India [Section
2(I)(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 E
the 16th December, 1966 [Section 2(1)(t)]. 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 F
) ,.
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 (t) Deputy Chairman of the
G
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. ln the event of the occurrence of any
vacancy in the office of the Chairperson, any one of the members can be
authorized to act as the Chairperson until the appointment of a new Chairperson
to fill such vacancy.
H
504
SUPREME COURT REPORTS
[2005] I S.C.R.
A
Section 11 of the Act provides that Central Government shall make
available to the NHRC (a) an officer of the rank of the 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
B
be necessary for the efficient performance of the function of the Commission.
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
c 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
D 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
Indian Penal Code [Section 13(2)].
E
The power to conduct any investigation pertaining to the inquiry has
been provided for in Section 14 of the Act. The 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.
F
Chapter V deals with constitution of State Human Rights Commission
and matters related 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 and Ors., [ 1999] 2 SCC 131. The judpment
G 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
H of investigation is only one part which has been dealt with separately, the
-4.
'r
.<;
(
PEOPLE'S UNION FOR CIVIL LlilERTIES v. U.O.L [SABHARWAL, J.]
505
other part being the decision making power and functions of Commission A
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 B
of the contents of the standards and the machinery for implementing the
protection of human rights. The General Assembly of the United Nations
adopted on 10th September, 1948 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 16th December, 1966 formed a bedrock C
of international recognition of human rights.
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'.
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 Paris principles are:-
"(a) Independence guaranteed by the Statute or constitution.
(b) Autonomy from Government.
( c) Pluralism in membership.
( d) Broad mandate based on human rights standards.
( e) Adequate power of State.
(f)
Sufficient resources."
D
E
F
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, G
it provides that :
"The composition of the 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 H
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(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, representative of:
non-governmental organizations responsible for human rights and
efforts to combat racial discrimination, trade unions, concerned social
B
and professional organizations, for example, associations of lawyers,
doctors, journalists and eminent scientists;
c
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)."
In regard to structure of such institutions, the guidelines, inter alia,
D 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 <he human rights.
India is a party to aforesaid covenants. Indian Constitution guarantees
E 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
F 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
G members of the Commission.
The investigation under the Act has been separately dealt with in the
manner provided in Sections I I, 14 and 37. A Police officer may be 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
H purposes what is relevant to be borne in mind. is that number of cases reported
PEOPLE'S UNION FOR CIVIL LIBERTIES 1'. U.0.1. [SABHARWAL, .I.]
507
to NHRC relate to acts of omission and commission by the members of such A
forces. In this regard, reference can be made to NHRC Report for the year
2001-02. That report shows that large number of cases relating to custodial
deaths and police encounter deaths came up for enquiry and consideration
before the Commission. The officers of these forces while being members of
service necessarily come across such cases. An individual officer may be B
very good but something inbuilt in service as a class is the relevant
consideration. The Commission has also to deal with type of cases, which
officers had sometimes to defend, on account of nature of their service.
Further, 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 C
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 the section is of
latter and not former. Paramjit Kaur's case (supra), gives an indication as to
what type of knowledge or practical experience in matter of human rights,
the Act has in contemplation so as to make a person eligible to be appointed D
as a member of the Commission. We have to consider 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 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 Paris principles, namely, E
representatives of non-governmental organizations responsible for human
rights and efforts to combat racial discrimination, trade unions, concerned
social and professional organizations, for example, associations of la·vyers,
doctors, journalists eminent scientists; trends in philosophical or religious
thoughts; universities and qualified experts; and parliament. Regarding the
Government departments, their representation in the deliberations is only in F
;.._
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 G
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 H
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A Chairperson under contingency contemplated by Section 7 of 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 Interpol, an international police
B organization in which capacity, it is claimed, he is involved in developing
mechanisms for police cooperation in investigation and prosecution of crimes
across borders including terrorism, human safety and human trafficking, which
are all offences against human rights. Union of India in the counter affidavit
claims that :
c
D
"During the course of their careers, police officers garner in vast
practical experience in police methodology, investigative techniques
and other practical matters relating to human rights. It is submitted
thai such experience would inter alia aid the Commission in identifying
cases of police mal-practice and the Commission would be able to
look behind cases of cover up and attempts to shield guilty police
officers. It is, therefore, submitted that Respondent No.2 has adequate
knowledge and practical experience in matters relating to human rights,
qualifying him for appointment to the Commission under Section
3(2)( d) of the Act."
E
The expertise in investigation cannot be confused with expertise in the
matters relating to human rights. Two are entirely different. For investigation,
police and investigating staff is available to the Commission. The Commission
can also require any person to furnish information on such points or matters
as may be useful for, or relevant to, the subject matter of inquiry. It may
F utilise services of any officer or in_vestigating agency as stipulated in Section
14 of the Act for the purpose of conducting any investigation pertaining to
the inquiry. The Central Government is required to make available to the
~
Commission such police and investigating staff under an officer not below
the rank of Director General of Police and such other officers and staff as
may be necessary for the efficient performance of the functions of the
G Commission.
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
H notwithstanding the exemplary role of police and security forces, there have
.,.
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SABHARWAL, J]
509
)
been many instances of excesses by the members of the forces leading to A
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. i1\dividual 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 B
reasonable apprehension in the minds of the citizens that he may subconsciously influence the functioning of the Commission. Such reasonable
perception of the affected parties are relevant consideration> 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, !AS
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
c
are relevant considerations to ensure the continuance of public confidence in D
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 than the one which nullifies it. Ambiguity, if any, in the E
statutory provision is required to be removed by judicial process to advance
the cause of protection of human rights.
The observations in P.N. Duda v. P. Shiv Shanker and Ors., [1988] 3
SCC 167 that 'After all it cannot be denied that predisposition or subtle
prejudice or unconscious prejudice or what in Indian language is called F
'sanskar' are inarticulate major premises in decision making process' are
quite apt in the present context.
On the aspect of sub-conscious mind, what Justice Frankfurter said for
not participating in the decision of Public Utilities Commission of the District G
of Calumbia, Capital Transit Company & Washington Transit Radio, Inc. v.
Franklin S. Pollak & Guy Mart, [343 US 45 l], is quite enlightening. It
reads:-
'The judicial process demands that a judge move within the framework
of relevant legal rules and the covenanted modes of thought for H
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ascertaining them. He must think dispassionately and submerge private
feeling on every aspect of a case.