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India: Appointments to rights bodies - Why ex-police officers aren’t fit for the job

by Rajindar Sachar, 16 April 2013

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sacw.net - April 16, 2013

One of the tragedies of modern politics is that politicians have no embarrassment in speaking in one way and acting in the other. Dr Lohia, the late socialist leader, always maintained that if there is to be people’s politics that can only happen when there is total approximation between what politicians say and how they act. In this he was only echoing Gandhi’s insistence that politics and morality must go together.

That there is cynical flouting of these norms in present-day politics is a daily occurrence. The latest instance is of BJP leaders Arun Jaitley and Sushma Swaraj objecting to the proposed appointment of Mr SC Sinha, chief of the National Investigation Agency, to be a member of the National Human Right Commission of India (NHRCI) on the ground that by doing so the ruling regime is setting a dangerous precedent. Appointing heads of the country’s premier investigating agencies to such posts after their retirement would have a negative impact on the neutrality of such agencies. The point is well taken and I totally agree. But I would like to refresh the BJP memory with regard to setting a precedent and the matter relates to the BJP-led Central government in 2003.

The BJP forgot this moral stand when it appointed Sharma, who had retired as the Director of the Central Bureau of Investigation (CBI) in December 2003 to the NHRC. Of course, it sought and obtained the consent of Sonia Gandhi, the then Leader of Opposition in the House of people and Dr Monmohan Singh, the Leader of Opposition in the Council of States.

The People’s Union for Civil Liberties (PUCL), founded by Jayaprakash Narayan in the dark days of the Emergency in 1976, challenged the appointment of Sharma in the Supreme Court. It made it clear that it raised no personal objection to Sharma, nor was it talking of his competency or impartiality as an individual. Its objection was on the basis of a fundamental issue that no one from the police or security forces (or in any case on the touchstone of confidence-building measures in the working of the NHRCI) should be appointed to a body which was meant to give relief to the people from the peculiar working of police and security forces.

The PUCL drew to its aid the strong concern expressed by the Supreme Court “at the growing incidence of torture and deaths in police custody”. It relied especially on the Paris Principles endorsed by the UN General Assembly wherein the criteria for the composition of the National Human Rights institutions were adopted — autonomy from the government. Especially in regard to the composition of the Human Right Commission, the principles specifically ruled out government departments’ representatives from the membership of the commission.

But such are the dual standards that when the matter came up for hearing, the BJP-led government threw its full weight justifying the appointment. The matter initially came up before a two-judge Bench comprising Justice YK Sabharwal (as he then was) who held as follows:

“The 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 upon a high degree of public confidence. It cannot be overlooked that notwithstanding the exemplary role of the 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 or not, but what exists in the public mind and whether there is some justification therefore. After all, it cannot be denied that predisposition or subtle prejudice or unconscious prejudice or what is called “sanskar” are inarticulate major premises in the decision-making process. Thus, construing Section 3(2)(d) of the Act, a police officer would be ineligible to be appointed as a member of the NHRC.”

The other justice dissented. The matter was then heard by 3 a three-judge Bench which took a contrary view and held that the appointment of a police officer to the NHRC was legal and permissible though it conceded that it cannot take any exception with regard to the remarks made in many of the Supreme Court cases that the judicial and public perception of the police force is considered to be the biggest violators of human rights.

The unfortunate effect of this judgment has been that since then almost every State Human Rights Commission (HRC) has at least one, sometimes two members, from the state police force as members. Imagine the irony and the discomfort of human rights activists who have been fighting against the police excesses for a long time to find that his remedy provided by law is from the very machinery of police personnel now sitting in the NHRC or state HRCs. In this matter both Congress and BJP- ruled states have a commonly shared preference for police personnel and allergic to any improvement in the working of the NHRC or the State HRCs. This is evident from the fact that the recommendations for improvement in the NHRC made by a committee headed by former Chief Justice Ahmadi as far as 15 years ago have remained in cold storage under both Congress and BJP governments.

As I said, it is not the actual prejudice or the unfairness by a police officer, but the perception of it that is the problem. I, therefore, feel that in spite of the court having held that there is no disqualification of a police or security officer from being appointed as a member, both the Congress and the BJP should agree to debar police and security personnel from the membership of the NHRC and State HRCs.

In this connection let me quote the precedent. Gandhiji had selected a person to be a member of the Congress Working Committee. But before he could be appointed, information was sent to Gandhiji that in a suit filed against that gentleman for the recovery of a loan taken by him, he had replied (Of course drafted by his clever advocate) that he had not taken any loan, hence nothing was payable and, in the alternative, even if he had taken, he was not to pay back because it was now barred by limitation.”

Gandhiji tersely remarked, “If no loan has been taken, then he is right in denying it. But if he has taken it but is refusing to pay because of limitation, then such a person cannot be a member of my working committee.” Here was a meaningful distinction between what may be legally right can be morally wrong. This is the justification for excluding police and security forces from the membership of the NHRC and the State HRCs.

The writer is a former Chief Justice of the Delhi High Court