An inappropriate appointment

The National Human Rights Commission (NHRC) is the premier body that investigates abuses and violations of human rights in India. Set up in 1993, the NHRC has wide-ranging powers to investigate, recommend prosecutions, and award compensations for human rights violations. High-profile cases investigated by the Commission include encounter killings by the police and other acts of violence by the state. In 2002, the Commission under former Chief Justice J.S. Verma, was the first official body to visit Gujarat after the riots; it moved the Supreme Court to transfer cases outside the State to secure a fair trial.

The NHRC, set up under the Protection of Human Rights Act, 1993, consists of nine members. Four are ex-office appointments — serving Chairpersons of the National Commissions for Minorities, Scheduled Castes, Scheduled Tribes and Women. Two are persons who have done work in the area of human rights. And three are from the judiciary: a sitting or retired judge of the Supreme Court; a Chief Justice of a High Court; and, the most important of all, a former Chief Justice of India (CJI) who heads the Commission.

Needing an icon of independence

That the head has to be a former CJI is for good reason. Commonly, human rights violations are committed by, or with the connivance of, or allowed to be perpetrated by high-level political leaders, the police or other officers. The public needs to have unquestionable confidence that these cases will be investigated without a tinge of favour, by the most independent persons available. The Commission’s public face and guiding force is the Chairperson. Hence, the insistence on a former CJI as the Chairperson of the Commission. Even a puisne judge of the Supreme Court is not to be considered for the post; nothing less than a person who has occupied the highest rank in the judiciary will do. If there is an icon of independence in the country who has received no favour from the government and is fearless about tackling the powers that be, surely it is the CJI. So proceeds the Act.

Justice P. Sathasivam held the office of the CJI from July 2013 to April 2014. Shortly thereafter, the government offered him the position of Governor of Kerala. He accepted, setting off a chorus of criticism. One former CJI, when asked for his reaction, enigmatically and crisply commented that “standards differ”. Lawyers and retired judges pointed out that the office of the CJI was being devalued. Its holder was part of a constitutional triumvirate of power along with the President and the Prime Minister, they argued, and therefore accepting Governorship meant going to an office not only several rungs lower, but more crucially one which was given entirely as patronage and largesse by the executive. It was also feared that once a precedent was set, and by no less than a CJI, it would not be long before judges on the verge of retirement would have the vision of a comfortable gubernatorial position hazing their eyes while deciding sensitive cases against the government.

Very few voices defended the appointment. One of those was that of Justice Sathasivam himself. He argued that he was accepting just another constitutional post, an untenable argument when the Constitution enumerates many posts barely comparable to the eminence of the CJI. He is also reported to have said that these standards would not apply to a retired CJI, a defence which poses some difficulty.

Indeed, it needs to be remembered that judges, especially of the Supreme Court, will inevitably handle cases of controversy involving the government and political personages. Justice Sathasivam himself has handled cases involving prominent politicians such as Amit Shah, where the accused received relief. Accepting appointment from governments of which such petitioners are a part will invite scrutiny of these cases and give rise to questions. This post facto scrutiny and linkage is one of the main reasons why judges have stayed away from accepting appointments that are decided purely by politicians. Even the eminent Justice M.C. Chagla received strong condemnation from leaders of the Bar for accepting the posts of Union Minister and Ambassador. Over the years, Raj Bhavans have, with distinguished exceptions, become havens for politicians being eased out, or rewarding civil servants for services rendered. Justice Sathasivam was appointed during the season when Governors of several States were being given marching orders telephonically by the Home Secretary. That a just-retired CJI broke precedence and judicial ranks to join this less than august group was an action that was widely seen as diminishing the image of the head of the judiciary, with no countervailing public interest.

An inappropriate appointment

The concern that arises now is that Governor Sathasivam is in the running for appointment as Chairperson of the NHRC. His name is mentioned as one of the likely appointees, and it is said that he has given his consent. This would be an inappropriate appointment, going against the grain of the primary qualification for heading the body, namely, independence from the government and the perceived ability to take hard actions against those in power.

This is an institutional qualification; it is no defence to say that a person who enjoys a sinecure from the government will revert to absolute independence when appointed to head the NHRC. It is true that the statutory qualification for Chairperson does not specify that the candidate should not have held previous office at the hands of the government, but the framers of the Act would not have envisaged, even in their wildest dreams, that there would be a case of a Chief Justice becoming a Governor and then looking to become Chairperson of the NHRC.

Viewed from another angle, it is the proximal position that matters — he ought not to be treated as a former CJI, but as a Governor of a State, and hence not qualified to be Chairperson of the NHRC. It appears that a petition was filed in the Supreme Court raising these grounds, but it was withdrawn on the ground that the objection was being placed before the government. Perhaps judicial determination will have to follow if executive consideration is inadequate.

The position of the head of the NHRC is a crucial one for protecting human and democratic rights. These rights and the Commission are primordial for all citizens, especially for those who fall foul of the powerful in government. The appointment to this office must not be tainted in any way. Justice Sathasivam committed one mistake in accepting governorship and lowering the office of the CJI. One hopes that another such mistake will not be committed.

(Sriram Panchu is a senior advocate. E-mail: )

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Printable version | Jun 14, 2021 12:59:11 PM |

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