TMI Blog2005 (4) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... rector, Central Bureau of Investigation and was also holding the post of Vice-President (Asia) Interpol. According to the petitioner, the appointment of a person who served in the police force as a Member of the N.H.R.C. is contrary to the provisions of the Protection of Human Rights Act, 1993, (the Act), apart from being opposed to the very aims and objects for which the said Commission was constituted. The petitioner urges that such appointment would underline the status and international recognition of the Commission as an institution for protection of human rights. It is also urged that the appointment of the second respondent is also opposed to the Constitution of India on the grounds that it is arbitrary and violative of Article 14. It is submitted that it is also violative of international covenants. For this purpose the petitioner has heavily relied on the principles laid down in the meeting of representatives of the national institutions in Paris wherein certain principles were evolved in regard to protection of human rights which principles came to be known as Paris principles . According to the petitioner, these principles were subsequently endorsed by the U.N. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(d) of the Act which provides that a person having knowledge of and practical experience in matters relating to human rights is eligible for such appointment. It is further submitted that respondent No. 2 is a distinguished Officer of the Indian Police Service, having retired as the Director of CBI. It is submitted that in the course of his career between 1966 and 2003, he has had occasions to supervise the investigation and prosecution of several offences including the serious offences against human rights. As an example the first respondent has stated that as the Director of CBI, the second respondent was responsible for investigating the Punjab mass cremation cases and the Gujarat riot cases; both of which involved serious violation of human rights. It was also submitted that as an institution, the CBI is often entrusted by this Court to conduct inquiries into sensitive matters where violation of human rights is involved and the second respondent has been a part of such investigations. It is also pointed out by the learned Solicitor General appearing for the Union of India that the petition does not make any personal allegation against the second respondent as to any act of vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es nor the U.N. Resolution prohibit a former civil servant or a Police Officer from becoming a member of the Human Rights Commission. More importantly, it is submitted that once the Indian Legislature enacts a law pursuant to an international convention then the legislative area in that field being covered it is the municipal law alone that prevails hence, the validity of the appointment of second respondent can only he examined with reference to the provisions of the Act. 5. This petition came up for consideration before a Bench of two learned Judges of this Court. Since the said two learned Judges had a difference of opinion in regard to the question involved, by their reasoned order, they referred the matter to a larger Bench because of which the matter is now before this Bench of three Judges. 6. Having heard learned counsel for the parties and on the basis of their pleadings and arguments recorded hereinabove, at the outset we must notice that neither the Paris Principles nor the U.N. Resolution and much less the Act does either expressly or impliedly exclude the inclusion of a Police Officer in the Commission. The argument of the petitioner is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible therefore, to read Section 8(1) as canvassed on behalf of the appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under Section 5A illusory. 8. If we apply the said principle of law to the facts of the case, there being no exclusion in Section 3(2)(d) of the Act and the language being clear we cannot by looking back into the Paris Principles or the U.N. Resolution interpret an exclusionary clause to keep the Police Officers from being the Members of the Commission in spite of the Act not providing for the same. 9. Having dealt with the provisions of the Art in regard to the qualification of two members to be appointed under Section 3(2)(d) of the Act, we will now refer to the argument of public perception about the Police about which lengthy arguments supported by various judgments of the Court have been addressed by the learned counsel for the petitioner. Learned counsel for the petitioner submitted that it is a well known fact that Police force all over the world especially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion the learned Solicitor General has rightly relied on certain passages from the judgment of this Court in The State of Uttar Pradesh v. Mohammad Naim [1964]2SCR363 wherein this Court had deprecated the practice of courts making sweeping and general observations against the entire Police force of a State though the case related to only one Police Officer. In such a situation, this Court held that such general remarks were neither justified on the facts of the case nor were they necessary for disposal of the said case, hence, expunged such general remarks. 10. While we cannot take exception in regard to the remarks made against the Police in each one of the above cases relied on by the learned counsel for the petitioner, we certainly feel that these remarks cannot be so generalised as to make every personnel of the force, consisting of nearly of 2.2 million people, violators of human rights solely on the ground that out of thousands of cases investigated and handled by them, in some cases the personnel involved have indulged in violation of human rights. Learned counsel for the petitioner, however, contended that the judgments apart, the public perception of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister Incharge of the Ministry of Home Affairs in the Government of India Leader of Opposition in the House of People Leader of Opposition in the Council of States Deputy Chairman of the Council of States. 14. Proviso to the above section further stipulates that no sitting Judge of the Supreme Court or sitting Chief Justice of the High Court shall be appointed except after consultation with the Chief Justice of India. There is absolutely no requirement under the Act that this Committee consisting of such high office holders of this country should further consult the Chairman of the Commission before appointing a member. The entire argument of the petitioner in this regard rests on the fact that on some previous occasion the Committee did consult the Chairperson of the Commission and in the present case this was not done. We are in agreement with the learned Solicitor General on this point that when a statute vests a function in a Committee comprising of such high dignitaries holding high constitutional positions, it would be impermissible to read into the statute the requirement of consultation with the Chairman of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d imported the obligations under the Paris Principles and the U.N. General Assembly Resolution as if they are binding as legal obligations on India even in the municipal context. While doing so he has relied upon the judgments of this Hon'ble Court in Mackinon Mackenzie v. Audrey D'Costa (1987)I LLJ 536 SC ; Sheela Barse v. Secretary, Children's Aid Society [1987]1SCR870 ; PUCL v. UOI AIR 1997 SC 1203 ; Vishaka v. State of Rajasthan, (1991) 6 SCC 241. 18. Having noted the above we would with respect like to point out that neither the Paris Principles nor the subsequent U.N. General Assembly Resolution can be exalted to the status of a covenant in international law. Therefore merely because India is a party to these documents does not cast any binding legal obligation on it. Further, all the above cases which Hon. Sabharwal, J. has relied upon deal with the obligations of the Indian State pursuant to its being a party to a covenant/ treaty or a convention and not merely a declaration in the international fore or a U.N. General Assembly Resolution. 19. Apart from the above, the fact that the field in relation to the constitution of the NHRC is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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