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SCOI Report: Should CJI Dattu become NHRC chief?

As the Chief Justice of India (CJI) HL Dattu retires on 2 December, the Government is apparently preparing red carpet for him at the National Human Rights Commission (NHRC) according to several reports, as the post of the chairperson of the NHRC has been vacant since May this year, and only former CJIs are eligible for this high office.

Justice Dattu’s possible elevation has exposed an anomaly in the Protection of Human Rights Act, 1993.

Section 3(2)(a) of the Act says that the Commission shall consist of a chairperson who has been a Chief Justice of the Supreme Court, whereas Sections 3(2)(b)and (c) provide for appointment of one member who is or has been, a Judge of the Supreme Court or the Chief Justice of a High Court.

Limiting the zone of consideration for the Chairperson of NHRC to the former CJIs, as the Act does, defies logic and has crippled the NHRC, when the Government is unable to find a suitable successor to the present incumbent in time.

After Justice KG Balakrishnan retired in May, the other former CJI’s could not be considered for one reason or the other.

Former CJI P Sathasivam became the Governor of Kerala, soon after his retirement. Although he wants to become the chairperson of the NHRC, the Government is unable to appoint him because of the opposition to his appointment on the ground that he suffered disqualification on the ground of his being the Governor, an executive post.

The words “has been a Chief Justice of the Supreme Court” in Section 3(2) (a) has been interpreted by some to mean a cooling off period between the date of retirement and the date of appointment as the Chairperson of the NHRC Sathasivam, it is argued, was a Chief Justice of the Supreme Court, as opposed to “has been”.

Similarly, Justice Dattu’s likely appointment as the next NHRC chairperson, so soon after retirement as the CJ of the Supreme Court is also opposed by some on the ground that if the words “has been” is interpreted as a day after or even a few days after the retirement, it would cause great prejudice to the independence of judiciary.

They point out that there is a reason why the words “has been” were used for the CJ of the Supreme Court, while the words “who is or has been” were used for the Judge of the Supreme Court or the Chief Justice of the high court.

The reason is that as the head of the judiciary, the CJ of the Supreme Court cannot offer himself as the candidate while in office, as it would seriously prejudice the independence of the judiciary. It is argued that what has been expressly prohibited by law, cannot be achieved by circumventing it, by appointing him as the Chairperson a day after the retirement, as the result would be the same. If while in office, he cannot offer himself as the candidate, his likely appointment so soon after retirement would suggest that he was in fact in talks with the Government about his possible elevation after retirement, and therefore, the distinction between elevation while in office, and appointment after retirement would get blurred. It is not without reason that the Proviso to Section 4(1) says that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed as a Member of NHRC except after consultation with the CJI

It is, however, pointed out that if the ‘cooling-off period’ is read into the provision, then no Supreme Court Judge could hold office of Chairperson or the Member for a term of five years because the Supreme Court Judges retire at the age of 65, whereas the retirement age of the NHRC Chairperson or the Member is 70 years.

Former CJI RM Lodha, who retired on 27 September 2014 has, spoken in support of two-years cooling off period, and therefore, is unlikely to offer himself as the candidate for the post of Chairperson of NHRC Former CJI, Altamas Kabir retired on 18 July 2013, and would complete 70 years on 18 July 2018. If appointed to NHRC, he would have a tenure of just two and a half years, just half of the five-year tenure, that the Chairperson is entitled to . Former CJI, SH Kapadia, who retired on 28 September 2012, would have a still less tenure, if appointed to the NHRC, and therefore, is unlikely to offer himself as a candidate.

It is pointed out that the two vacancies at NHRC at present have severely hampered its efficacy to the extent that it is not in a position to constitute its two division benches and two single member benches are unable to respond to the immense volume of cases pending before it. If the former CJIs, other than Justice Dattu, are eligible for the office, why the Selection Committee did not meet before the vacancies arose in March and in May, to select the successors to the retiring members, it is asked.

According to the Act, the Selection Committee consists of the Prime Minister, the Speaker of the Lok Sabha, Home Minister, Deputy Chairman of the Rajya Sabha, and Leaders of the opposition or the single largest parties in the Lok Sabha and the Rajya Sabha.

Some observers have expressed concern that the current appointment process directly contradicts the UN Paris Principles (UN Guidelines for the Establishment of National Human Rights Institutions). Indpendence, diversity, impartiality, and fairness are the main pillars set out in the UN Paris Principles for NHRI’s operations. Two of the six key elements of the ‘Paris Principles’ require NHRIs to be autonomous and independent of the government in all their functioning. As NHRC is due for its next review before the ICC-SCA (International Coordination Committee of NHRIs-Sub Committee on Accreditation) in 2016, it is suggested that appointment process should ensure independence and autonomy of the institution. At the time of reaccreditation in 2011, concerns were expressed by the ICC-Sub Committee on Accreditation with regard to the composition and pluralism of the board of NHRC, appointment of its Secretary General and the Director of Investigation from the Central Government, relationship with civil society, the complaints handling mechanism of NHRC being not efficient and independent, and non-publication of the annual reports of the NHRC before it is presented to Parliament.

It is pointed out that non-appointment of a Member having experience and knowledge of human rights, as required by the Act, and the non-appointment of a woman Member for the past 11 years, go against the principles of plurality and diversity in NHRC’s composition as mentioned in Paris Principles.

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