Holding

A former police officer is ineligible to be appointed as a member of the NHRC under Section 3(2)(d), and the appointment is declared null and void.

Summary

A vacancy arose in the National Human Rights Commission (NHRC) and a retired Director of the CBI, a former police officer, was appointed as a member under Section 3(2)(d) of the Protection of Human Rights Act, 1993. The petition challenged his eligibility, arguing that police officers are disqualified and that the appointment violated the requirement of consultation with the NHRC Chairperson. The Court examined the language of Section 3(2)(d), the purpose of the Act, and the Paris Principles on pluralistic composition of national human rights institutions. It held that the provision intends members to have knowledge of human‑rights protection, not merely investigative experience, and that a police background creates a perception of bias undermining public confidence. Consequently, the appointment was declared null and void. The petition was allowed, though a dissenting opinion argued the opposite interpretation.

Issues considered

The eligibility of a former police officer to be appointed as a member of the NHRC under Section 3(2)(d) of the Protection of Human Rights Act, 1993.
Whether the appointment violated the statutory requirement of consultation with the NHRC Chairperson.
Whether the selection committee's recommendation can be set aside on grounds of public perception and the Paris Principles.

Legislation cited

Constitution of Indias. Article 21
Protection of Human Rights Act, 1993s. 11, s. 14, s. 3(2)(d), s. 37, s. 4, s. 7

Subjects

National Human Rights CommissionEligibilityPolice officerSection 3(2)(d)Protection of Human Rights ActParis PrinciplesPublic confidenceAppointmentJudicial review

Judgment

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.

Respondent No. 1 contended that respondent 2 has adequate
F 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
become a part of the decision making process of NHRC and not the process
B 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

'1,,.
D 3.3. 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
E
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.

3.4. The expertise in investigation cannot be confused with expertise
G 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 ofColumbia, 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
disclosure of relevant factors considering that the appointment is being
B
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
PEOPLE'S UNION FOR CIVIL LIBERTIES i-. U.0.1. [SABHARWAL, J] 5QJ

-t was made. 1518-E-FI A
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 B
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 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. I05
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.
F
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
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
Economic, Social and Cultural Rights, adopted by the General Assembly of B
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
system of administration of justice, with a view to bringing about greater
c
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
the 16th December, 1966 [Section 2(1)(t)]. Besides two members to be E
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
Council of States, has been entrusted with the responsibility to make G
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 -4.
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
be necessary for the efficient performance of the function of the Commission.
B
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 'r

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)].

The power to conduct any investigation pertaining to the inquiry has
E 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.

Chapter V deals with constitution of State Human Rights Commission
F
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
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'. D
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.
E
(b) Autonomy from Government.
(c) Pluralism in membership.
(d) Broad mandate based on human rights standards.
(e) Adequate power of State. F
(f) Sufficient resources."

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
506 SUPREME COURT REPORTS [2005] I S.C.R.

A (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;

Trends in philosophical or religious thought;

Universities and qualified experts;
c 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
508 SUPREME COURT REPORTS [2005] I S.C.R.

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 "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
D 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 sub-
consciously 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.
c
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
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
.......,
I

510 SUPREME COURT REPORTS [2005) I S.C.R.

A ascertaining them. He must think dispassionately and submerge private
feeling on every aspect of a case. There is a good deal of shallow talk
that the judicial robe does not change the mari within it. It does. The
fact is that on the whole judges do lay aside private views in
discharging their judicial functions. This is achieved through training,
professional habits, self-discipline and that fortunate alchemy by which
B men are loyal to the obligation with which they are entrusted. But it
is also true that reason cannot control the subconscious influence of
feelings of which it is unaware. When there is ground for believing
that such unconscious feelings may operate in the ultimate judgment,
or may not unfairly lead others to believe they are operating, judges
c recuse themselves. They do not sit in judgment. They do this for a
variety ofreasons. The guiding consideration is that the administration
of justice should reasonably appear to be disinterested as well as be
so in fact." (Emphasis supplied)

The aforesaid passage has been quoted with approval in Ranjit Thakur
D v. Union of India and Ors., [1987] 4 sec 611.

When a Police officer is a member of NHRC, the question to be asked
is not to his bias but is the impression of a reasonable right minded person
and the confidence the Commission would generate as a result of participation
of a person of such a background.
E
The principles laid in aforesaid decisions can be reasonably 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.

F In respect of violations of (luman rights during investigation, in D.K.
Basu v. State of West Bengal, [1997] I 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 Pol ice Station or lockup, the victims being
G 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
H factor. Experience shows that worst violations of human rights take
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SABHARWAL, J] 511

place during the course of investigation, when the police with a view A
to secure evidence or confession often resorts to third-degree methods
including torture and adopts techniques of screening arrest by either
not recording the arrest or describing the deprivation of liberty merely
as a prolonged interrogation. A reading of the morning newspapers
almost everyday carrying reports of dehumanising torture, assault, B
rape and death in custody of police or other governmental agencies
is indeed depressing. The increasing incidenc,: 01 !orture and death in
custody has assumed such alarming proportion that it is affecting the
credibility of the rule of law and the administration of criminal justice
system. The community rightly feels perturbed. Society's cry for justice
becomes louder." c
The Court also took note of various other security forces and other
agencies where too there were instances of torture and death in custody. N.C.
Doundial v. Union of India and Ors., [2004] 2 SCC 579 was a case where
the Commission enquired into violation of human rights by officials of CBI.
D
Respondent No. 2 has been a Police Officer throughout his service
· career. We assume that he was a very efficient officer and investigated i:nany
cases including complicated and sensitive cases but what is relevant for the
present purpose is the 'sanskar', to borrow, words from P.N. Duda 's case,
i.e., conscious or sub-conscious bias in favour of investigating agencies.
E
Once again, we wish to make it clear that neither we are condemning
any force nor upright officers of which there is no dearth, but are examining
the confidence the communiiy at large is likely to generate on officers of
such services being appointed as member of the Commission, particularly,
when the language of Section 3(2)(d) does not admit of only one interpretation.
When two interpretations are possible, the interpretation which promotes the
F
object of the Act and public confidence deserves to be adopted.

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 G
crime. Human Right violations are of various forms which besides Police
brutality is - gender injustice, pollution, environmental degradation, mal-
nutrition, social ostracism of Dalits etc. Police officer can claim to have
experience of only one facet. That is not the requirement o.f the sectio11.

Let us also note some of the decisions, in which drawing aid from H
512 SUPREME COURT REPORTS [2005] I S.C.R.

A international covenants, law enacted by Indian Parliament was construed and
relief of protection of human rights was given.

In Makinnon Macken:ie and Co. Ltd. v. Audrey D'Costa, [I 987] 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
B 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
C 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
D 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 and which elucidated norms for the protection of children
cast an obligation on the State to implement their principles. The Court said:

"Children are the citizens of the future era. On the proper bringing up
E of children and giving them the proper training to turn out to be good
citizens depends the future of the country. In recent years, this position
has been well realized. In 1959 the Declaration of all the rights of the
child was adopted by the General Assembly of the United Nations in
Article 24 of the International Covenant on Civil and Political Rights,
1996, the importance of the child has been appropriately recognized.
F India as a part to these International Charters having ratified the
Declaration, it is an obligation of the Government of India as also the
State machinery to implement the same in the proper way."

In the aforesaid case, th is Court traveled one step further than m
G Makinnon Mackenzie and made not merely a reference to an international
convention but a stronger expression of the binding nature of its obligations.

The endeavour of this Cou1i to ensure a virtual judicial incorporation
of treaty law into the corpus Juris is demonstrated by its opinion in Vishaka
v. State of Rajasthan, AIR (1997) SC 3011 at 3015, in the following words:
H
PEOPLE'S UNION FOR CIVIL LIBERTIES r U.0.1. [SABHARWAL, J J 5J3
"The meaning and content of the fundamental rights guaranteed in A
the Constitution of India are of sufficient amplitude to encompass all
the facets of gender equality including prevention of sexual harassment
or abuse. Independence of judiciary forms a part of our constitutional
scheme. The international conventions and norms are to be read into
them in the absence of enacted domestic law occupying the field B
when there is no inconsistency between them. It is now an accepted
rule of judicial construction that regard must be had to international
conventions and norms for construing domestic Jaw when there is no
inconsistency between them and there is a void in the domestic law."

Again in People's Union for Civil Liberties v. Union of India and Anr., C
[1997] 3 sec 433, dealing with the criticism against reading of conventions
and covenants into the national laws, it was opined :

"For· the present, it would suffice to state that the provisions of the
covenant, which elucidate and go to effectuate the fundamental rights
guaranteed by our Constitution, can certainly be relied upon by courts D
as facets 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, E
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, for there is a primafacie presumption
th2' 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 F
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 G
expressed his opinion against appointments of such persons.

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

The challenge to the appointment of respondent No.2 was also made on H
+·

514 SUPREME COURT REPORTS [2005) I S.CR.

A two other grounds, namely. (I) Absence of effective consultation with the
Committee members and, therefore. the recommendation was not in accord
with Section 4 of the Act and (2) breach of established norm of consultation
with the Chairperson of NHRC.

Facts relevant for considering aforesaid grounds have already been
B noticed. Under Section 4 every appointment has to be made after obtaining
the recommendations of a Committee. The requirement of Section is not of
'consultation' but of recommendation of the Committee. It is true that the
recommendations are required to be made after taking into consideration all
relevant factors eschewing irrelevant factors. Since notice of the meeting had
C been given to Leader of Opposition in the Council of States, it cannot be said
that the recommendations of the Committee would stand viti&ted as a result
of his 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 disclosure of relevant factors
considering that the appointment is being recommended for a highly expert
D 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 ·r
of the NHRC were asked and since the Chairperson was opposed to the
appointment of a member of the force, the proposal was dropped. It is,
however, unnecessary to examine its effect in view of the answer to the main
E question.

Regarding the second ground, namely, the requirement of consultation
with the Chairperson of the NHRC for appointment of members under Section
3(2)(d), the fact that the opinion of the Chairperson was sought on earlier two
occasion would not tantamount to setting up of a convention requiring the
F Chairperson to be mandatorily consulted. Section 4 also does not postulate
consultation with the Chairperson, However, having regard to the position of
the Chairperson and the laudable objects the Commission is serving, its
functions being offar reaching public impact, we hope that till the amendment
of the Act, the Central Government would consider developing a healthy
G 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
H Government. It deserves to be expedited.
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [DHARMAbHIKARI, J.] 5 J5

> Before parting, we reiterate that this Court should not be understood to A
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 B
relating to human rights within the meaning of Section 3(2)(d) read with
Paris principles. We also wish to place on record our appreciation for the
assistance rendered by Mr. Gulam E. Vahanvati, learned Solicitor General on
request made by this Court.
"1'·
In view of the aforesaid discussion, the appointment of respondent C
No.2 as.member of the National Human Rights Commission is declared null
and void but it shall not affect the validity of the decisions taken while he
was a member of the Commission.

The petition is allowed accordingly and the rule made absolute.
D
DHARMADHIKARI J. With utmost respect, I am unable to endorse
'f· all the views and the conclusion recorded in his opinion by learned Brother
Sabharwal J.

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

The composition of the Commission as provided in Section 3(2) of the
Act with Judges on its membership in majority, is not as pluralistic as indicated
in 'Paris Principle.'
F
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, render then 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 case that happen to come G
before them in the law courts and which they get chance to deal 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
incident and occurrences of violation of human rights. Such person, as
H
+

516 SUPREME COURT REPORTS [2005] I S.C.R.

A envisaged by use of a wide language in clause (d) of sub-section (2) Section _,.
3, may include reputed Human Rights Activi>ts or high ranking police officers
who have acquired experience in investigation and prevention of human
rights violations.

The expression 'from amongst person having knowledge of, or practical
B experience in matters relating to human rights' as used in clause (d) of sub-
section (2) of Section 3 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 the language used in
clause (d), neither expressly nor by implication, exclude suitable police officers .,,_
C with high record of experience and integrity.

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 preventors of such crimes cannot be
held to be disqualified or considered unsuitable for membership of the
D Commission.

In accordance with Section I l ( l )(b) of the Act, the Commission has to
be aided and assisted by a team of police and investigative staff 'under an
officer not below the rank of a Director General of Police'. The Central
Government is obliged by section I I to provide suitable police officers and
E staff for efficient performance of the functions of the Commission. In their
capacity as members of the staff for aiding and assisting the commission in
discharge of its functions, there are several police officers of that category
attached to the Commission who are directly dealing with human rights
violations and thereby get a chance to acquire necessary knowledge and
F .practical experience in the field of human rights. Such 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 member
under clause (d) of sub-section (2) of Section 3.

Public perception, to which learned Brother has given great importance,
G of police as a force, can change only if the high ranking police officers with
exemplary record of service and of integrity are given chance to act as member
of the commission.
r
Learned Brother has referred to 'Paris Principle' which was accepted by
H the countries which were parties to international covenants on civil, Social
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [DHARMADHIKARI, J.] 517

and Political Rights. International Law and guidelines have been taken aid of A
by this Court in interpreting the 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. 'Paris Principle' is at best merely in the nature of
guidelines to be followed by covenanting countries who are parties to the
resolutional taken in the international conferences on °human rights. There is B
no obligation on acceptance of 'Paris Principle', to incorporate it word by
word in statutory 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,
-1·
judges have a majority. A real pluralistic composition ought to include in its C
membership with judges; human rights activists, scientists, academicians and
even the 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. The 'Paris Principle' can at best be D
taken aid of to understand and interpret the provision of the Act but not to
substitute or supplement it.

In my view, selection of a high ranking police officer known for high
integrity and character with record of commendable service cannot be held
to be beyond the purview of sec 3(2)(d) of the Act. Section 3(2)(d) empowers E
the selection committee to induct 2 members other than judges, having
knowledge and practical experience in matters relating to human rights. Judges
by the very nature of their office and conduct, no doubt, as members not only
make the commission an independent body but also impart it an appearance
of independence. Yet, as the membership of the Commission has to be of a p
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.
G
With utmost respect, I fail to agree with the observations and conclusion
of learned Brother that under the provision of sub-section (2) of section 3,
....,; police officers are not intended to be included in the membership of the
National Human Rights Commission.
H
+
518 SUPREME COURT REPORTS (2005] I S.C.R.

A There are and would be police officers who have gained and are likely
to gain knowledge and practical experience in matters relating to human
rights by virtue of their duties. They 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,
B they acquire knowledge as to how and where human right 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
C 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 chance of serving
D 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 demoralizing effect on the police force as such.

The selection Committee, provided in section 4(1) of the Act, which
has to recommend appointment to the membership of the Commission, is a
E pluralistic body comprising of elected representatives of the people and
political parties i;i 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
F 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.

·G The credentials and bio-data of respondent No.2 who has been chosen
for membership of the Commission have been highlighted by the Union of
India in its counter affidavit. The relevant portion reads thus:-

"Respondent No.2 is a distinguished officers of the Indian Police
Service, having retired as Director of the Central Bureau of investigation
H (CBI). In the courses of his career from 1966 to 2003, he has had occasion
PEOPLE'S UNION FOR CIVIL LIBERTIES v. U.O.l. [DHARMADHIKARI, J] 5 J9

to supervise the conduct of investigation and prosecution of several offences, A
including serious offences against Human Rights. Among the cases investigated
by the CBI was during the tenure of respondent No. 2 as Director where the
Punjab Mass Cremation cases and the Gujarat riots cases both of which
involved serious violation of human rights. The investigation of the Punjab
Mass Cremation case by CBI on the direction of this Hon'ble Court and the
case has now been transferred to the commission for deciding the issue of B
compensation. The Gujarat riot cases are also pending before this Hon. Court,
in which the CBI investigation reports are being placed before this Hon.
Court. Other human right cases handled by CBI during third period including
inter alia cases on police encounter such as the death of Vashish Narayan
Singh in Azamgrah, U.P. and Varghese in Kerala. Cases of police torture in C
West Bengal (torture of minor boys named Manjeet Gowala and Pinter Jadav
in Darjeeling) and cases of picking up of a citizen Shri Kuldip Singh in
Amritsar in treating him as untraced, have also been investigated by CBI. In
many of these cases CBI has commenced prosecution against police officers.
Further Respondent No.2 is also the Vice President (Asia) of Interpol, an
international police organization. In this capacity also, he has been involved D
in developing mechanisms for police cooperation in investigation and
'r' prosecution of crimes across borders, including terrorism, human safety and
human trafficking, which are all offences against human rights. The function
of the Commission under the Act inclm.le inquiry and investigation function.
For this purpose, the Commission has been given the power of investigation E
under section 14 including the power of utilize the service of any officers or
investigation agency of the Government and consider the report of such
investigation. The staff of the Commission, since its inception include a
senior officer of the Indian Police Service as Director General (Investigation)
of the Commission and the function of the investigation division of the
Commission are carried on under the supervision and direction of the F
Commission itself. It is submitted that there is no illegality in an officer of
the Indian Police Service being considered for appointment as a member of
the Commission. During the course of their careers, police officers gamer in
vast practical experience in police methodology, investigative techniques and
other practical matters relating to human rights. It is submitted that such G
experience would inter alia aid the Commission in identifying cases of police
malpractice 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. H
+·
520 SUPREME COURT REPORTS [2005] I S.C.R.

A I do not th ink that the above mentioned record of service of respondent
No. 2, in any manner, makes him disqualified 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 the reputed NGOs who are actively
B 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
No.2 who cannot be held to be disqualified under section 3(2) (d). He has,
C in fact, served on the Commission for a period of almost one year.

So far as the observations made by learned Brother suggesting the need
of developing a healthy convention of consulting the chairperson for
appointment of members of the Commission are concerned, I am in respectful
agreement with him.
D
In view of my dissent on the main issu.! of validity of appointment of
respondent no. 2, I do not consider it necessary to elaborate my views in any
greater detail particularly on the interpretation of section 3(2)(d) of the Act,
because in any event, on disagreement between us, the case will have to be
decided by the larger Bench of th is Court.
E
ORDER

Jn view of difference of opinion between us, the matter is referred to
a larger Bench. We are of the view that the matter deserves to be heard
expeditiously.
F
D.G. Referred to the larger bench.