LK Advani, India’s deputy prime minister and home minister in 2004, overruled the objections of Chief Justice AS Anand and insisted on the appointment, to the NHRC of a just retired Director of CBI.
BJP leader Avinash Rai Khanna. Image credit: Alchetro
Political Appointment to NHRC Wrong in Principle: Justice Rajinder Sachar
Opposing the appointment of a senior office bearer of the Bharatiya Janata Party (BJP) as a member of the National Human Rights Commission (NHRC), several judges and human rights activists have roundly condemned the decision – first of its kind – to appoint a career politician to the national human rights body.
The decision of the NHRC to clear a politician to be on its panel is one more step of the ruling dispensation’s sinister intents to erode the autonomy of institutions. The Modi government, had tried once before to bring in a judge of the Supreme Court -- Justice Sathasivam who had already accepted an executive post of Governor of Kerala. That controversial appointment had also been challenged. Before that NDA I, under Advani had brought in a CBI director seen favourable to the regime, in 2004.
A committee that appoints members to NHRC is chaired by prime minister and includes the home minister, leader of opposition from both the houses, speaker of Lok Sabha and deputy chairman of Rajya Sabha as its members. The committee headed by PM Modi had earlier anonymously cleared appointment of BJP VP Avinash Rai Khanna as a NHRC member despite his insufficient qualification and his participation in active politics. The Opposition Congress finds itself in an awkward position as its senior party leaders have been found to have agreed to the controversial appointment. Khanna has had only a short stint (13 months) with Punjab State Human Rights Commission, which he quit on being elected to Rajya Sabha.
However, Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad yesterday claimed that he was not aware that Khanna was a BJP office-bearer. “We were unfortunately not kept in the loop… that he is an office-bearer of the BJP,” Azad told The Indian Express. Stating that he was misled, he said “We are given the bio-data, and he fell in the social (workers) category.”
Slamming Azad for his claim, Justice Rajinder Sachar, former chief justice of Delhi High Court and former member of United Nations Sub-Commission on the Promotion and Protection of Human rights told SabrangIndia, “How is that even possible? He himself is a leader of opposition in Rajya Sabha and Khanna is a former member of Rajya Sabha. How can he not be aware of Khanna’s affiliation with BJP? The Government is taking such a step and surprisingly even Congress is not opposing it? Their duplicity must be exposed.”
Further, Sachar called decision to appoint Khanna wrong “in principle” and also said that the People’s Union for Civil Liberties (PUCL) will be taking steps to cancel Khanna’s appointment.
Justice Hosbet Suresh also condemned the committee’ decision, calling it, “fundamentally wrong”. “I am unable to understand how the committee cleared appointment of a politician anonymously. This needs to be challenged in the court,” he said.
Although, he was skeptical if cancellation of his appointment would make any difference to the rights body, the NHRC, he felt it still should be opposed. “What purpose will it serve? NHRC is already pretty useless. This government, and also the previous governments have been doing very little to ensure effective functioning of NHRC,” opined Justice Suresh.
“The institution is very weak,” confirmed Henry Tiphagne, a renowned human rights activist and recipient of this year’s Amnesty International Human Rights Award 2016. “India used to be regarded as a leader with 160 human rights institutions functioning in the country. But, everyone knows that these have been systematically weakened,” he said.
Fearing a “bad trend” that this appointment can set off, he appealed to civil society to oppose this move. “This is just the beginning. Tomorrow, they’ll start appointing their staff members to the commission. This is a serious blow to the institution’s independence. Civil society should stand up against this,” said the founder of human rights organisation People’s Watch. “We’re waiting for the input from our advisors. After that, we’re going to approach the court,” added Tiphagne.
Ravi Nair, Executive Director, South Asian Human Rights Documentation Centre (SAHRDC) told SabrangIndia, “This is not new. Back in 2004, director of Central Investigation Bureau (CBI) P C Sharma was appointed to the commission, following, which I had resigned. This time, what’s new is BJP is trying to induct a crass political person to the Commission.”
He lambasted Azad as well for his ignorance and called his comment on the matter ‘preposterous’. “Are you sitting there simply ticking on papers put in front of you? While making statutory appointment to a human rights body, don’t you check a candidate’s background? Congress too needs to be told off,” said the ex-member of NHRC core group.
Around March 2004, the first government of the National Democratic Alliance (NDA-I) invited national and international criticism when it had appointed PC Sharma, just retired director of the Central Bureau of Investigation (CBI) as member to the NHRC. Sharma had held the post when the federal agency, CBI withdrew the conspiracy charge against them deputy prime minister and home minister, LK Advani in the Babri masjid demolition case.
The Caged Parrot Syndrome? Or a Quid Pro Quo ?
This proposal to appoint a senior policeman to a post on the national rights body had led to senior rights activist and academic, Ravi Nair, executive director of the South Asia Human Rights Documentation Centre (SAHRDC) to resign in protest from the NGO Core Committee of the NHRC.
Then chairperson of the NHRC, former CJP Justice AS Anand had protested against the proposal and even written a letter to the prime minister Vajpayee and the home minister. To no avail. The appointment went through and was challenged in the Supreme Court by the PUCL. On January 18, 2005, a two-member of the Supreme Court had a spilt verdict with Justice Sabherwal allowing it and Justice Dharmadhikari opposing it. On April 29, 2005, a three judge bench consisting of Justices Santosh hedge, BP Singh and SB Sinha dismissed the plea not to litter the rights body with a senior policeman, that too one who had won favours with a political dispensation.
Questioning the very motive of formation of the Commission (NHRC), Ravi Nair further claimed that it was formed only to be “used as a buffer against international criticism”. “It was dead on arrival. During the tenure of its first there chairmen, there were at least some efforts to ensure human rights accountability. But after that, it’s been a downfall. Ninety percent of its staff members are related to the Intelligence Bureau. How can you expect any credibility from them?” he claimed.
Expecting anything from NHRC is like expecting a cat to climb a glass mountain, jostled Nair.
Maja Daruwala, senior advisor, Commonwealth Human Rights Initiative called the appointment “a bad precedent”. “It might be okay to appoint an active politician in a strictly legal sense, but it’s indeed an abuse of public trust. Government must rethink its decision, in the interests of the NHRC as an institution independent and apart from the ruling regime of the moment.” she said.
Interestingly, when in opposition, BJP had opposed appointment of former Supreme Court judge Cyriac Joseph to NHRC citing his alleged closeness to "certain political and religious organisations". However, the objection by the then Leader of Opposition Arun Jailtley was rejected by the panel and the appointment was cleared.
This is not the first time that the Modi-led NDA II government at the centre, has tried to make a controversial appointment. 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”. Then, lawyers and retired judges had 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. The PUCL had strongly opposed this appointment.
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. The proposed appointment had been challenged in the Supreme Court.
NDA’s Dubious Track Record
In 2004, under NDA I, Kuldip Nayar had written scathingly in the The Indian Express, March 23, 2004:
“..the vacancy arose in November 2003 when Virendra dayal, a member of the NHRC retired after two terms. It was kept vacant intentionally because Sharma was still in service. When he retired in February, he was posted against the vacancy. It was of little concern to the BJP that Sharma did not fulfill the qualifications laid down in the NHRC charter and that Justice Anand had opposed the proposal. Apparently, the BJP has no respect for institutions like NHRC. Even earlier, it had tried to nominate to the commission two other police officials, MB kaushal and DR Karthikeyan…….Soon after joining the NHRC, Sharma wanted to attend a meeting of Interpol at Geneva. Justice Anand refused to release the necessary funds for the trip. I believe the CBI, or some other government intelligence agency, footed the bill. ‘Shining’ BJP is setting a new precedent by allowing a NHRC member to be part of Interpol at the same time.”
What is the NHRC?
Image credit: My Republica
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.
Crucial Need for Autonomy and Integrity
The PHR Act dictates that the chairperson needs to be a former CJI. This itself has been at the heart of many discussions within human rights circles and academia. 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 need for a head who’s autonomy is unquestionable. Unfortunately, despite its existence for a quarter of a century, the NHRC has not inspired the confidence on human rights abuse as it ought to have.
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