POLITICS OF APPOINTMENTS IN THE NHRC
The appointment of P.C.Sharma, former Director CBI, as a member of the National Human Rights Commission (NHRC) has raised a hornet’s nest. As per a press report, a public interest petition, questioning the appointment, has already been filed in the Supreme Court.
The appointment raises important issues regarding the composition of the NHRC. According to Section 3 of the Protection of Human Rights Act, 1993, the NHRC consists of a chairperson and four members. Two of these members must be from the higher judiciary and two "from amongst persons having knowledge of, or practical experience in, matters relating to human rights." Sharma has obviously been considered by the government a person having knowledge or experience of dealing with human rights.
Selection of chairperson and members of the NHRC is made on the recommendations of a committee consisting of the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the People and Deputy Chairman and leader of opposition in the Council of States. It is presumed that the government fulfilled all the formalities required by law before appointing Sharma to the post
Does Sharma’s appointment violate any provision of the Protection of Human Rights Act? Probably, not. However, the important question is- do the public perceive this appointment as legitimate?
One perception is that Sharma has been rewarded for the way he handled certain cases, like the Babri Masjid demolition case, for instance. In September last year, the Rae Bareli special court absolved Advani from the Babri Masjid demolition case, while charges were framed against the HRD Minister Murli Manohar Joshi and others. Many at that time, particularly the opposition leaders, questioned CBI’s role in the case. Even if this is not true, the government should have avoided taking a step that would give rise to such misgivings. NHRC is too important an organisation to be fiddled with by the government.
A part of the problem is lack of transparency in making such appointments. These are generally decided through notings in secret files or during hush hush closed-door meetings between the politicians and their favourite bureaucrats. The public therefore look upon such appointments as the government’s way of distributing largesse to the selected few.
The status of national institutions for the protection and promotion of human rights is to be governed by internationally accepted principles, known as the Paris Principles. One of these principles says that the composition of the national institution must reflect the “pluralist representation of social forces” through the presence of representatives of (a) NGOs), (b) trends in political or religious thought, (c) universities and qualified experts, (d) Parliament, and (e) government departments (only in an advisory capacity).
Though the Government of India is a signatory to the United Nations General Assembly Resolution adopting the Paris Principles, unfortunately, it has never followed the principles in letter or in spirit. In fact, the government has never looked beyond its nose in selecting the two non-judicial members of the Commission. In the absence of any prescribed process of selection, the appointments provide a means of extending patronage. Sometimes, they are also the result of intense lobbying done by the services. For instance, one post in the NHRC has through out been occupied by an officer from the Indian Foreign Service. No human rights activist, academician or a representative of civil society has ever been considered for the two posts. The NHRC has always had very restricted composition, definitely lacking the plurality of perspectives envisaged in the Paris Principles.
A large number of civic oversight bodies have been established in foreign countries to deal with citizens’ complaints against police. One principle followed is that none of the members of the complaint bodies can be a police officer. For example, Section 9 of the Police Reforms Act 2002, that sets up an Independent Police Complaints Commission in the UK, clearly debars a person who “holds or has held office as a constable in any part of the United Kingdom” from becoming the chairperson or a member of the Commission. Similar provisions exist in the legislation of other countries. Not allowing a police officer to hold such an assignment is considered important for ensuring an independent and impartial functioning of such bodies. The NHRC is of course not a police complaint body, but the majority of complaints received by the NHRC every year are against police personnel.
Even if there is no bar against the employment of a police officer, does the Commission need police expertise? The Commission’s secretariat already has the services of a few police officers who are senior to Sharma. For instance, there are two IPS officers of 1964 batch who have been working in the Commission as Special Rapporteurs- Chaman Lal and P.G.J. Nampoothiri. Sharma belongs to the 1966 batch of the Indian Police Service. Santosh Kumar, Director General (Investigation) is only one year junior to him. In its zeal to appoint Sharma, the government has not bothered to consider how his induction as a member of the Commission will affect the existing secretarial set up of the Commission.
The Supreme Court in its havala case judgement issued three important directions to insulate the CBI from illegitimate control of the politicians. One, its superintendence should be transferred from the government to the CVC; two, the appointment of Director CBI should be made on the recommendation of a high-powered committee headed by the chairperson CVC; and three, Director CBI should have a fixed minimum secure tenure. There is enough evidence to prove that the judgement has failed to insulate the CBI from illegitimate pressures and influences exerted by those at the helm of affairs in the government.
The appointment of former Director CBI as a member of NHRC brings to the fore an important issue for debate. Should there be a provision in law debarring government servants occupying such important posts as Director CBI from holding any public office of profit after retirement?
