Appointment Of Justice Sathasivam Will Compromise Autonomous Status Of NHRC Says PUCL
06 May, 2015
Sh. Pranab Mukherjee,
Hon’ble President of India.
Our National President, Prof. Prabhakar Sinha, has already sent a representation to you requesting you not to give your consent to the appointment of Justice Mr. P. Sathasivam (presently Governor of Kerala) as Chairperson of the National Human Rights Commission, if such a recommendation is made to you for your approval. In this connection, I will like to emphasize on behalf of our organisation, that the views expressed by Prof. Prabhakar Sinha are the views of Peoples Union for Civil Liberties. I am therefore taking the liberty of sending the same representation which may kindly be treated as the representation on behalf of People’s Union for Civil Liberties, for your kind consideration.
Prof. Sinha has given ample and justifiable reasons in support of his view as to why such an appointment, if it is made, will be contrary to the law, democratic ethic and the spirit of the Indian Constitution and the Protection of Human Rights. We do not want to question either Justice Sathasivam's honesty or his judicial ability, but wish to emphasize that the most essential and indispensable qualification of the Chairperson of the NHRC is the enjoyment of complete and unshakeable trust of the people in his ability to stand for their rights against the almost almighty Executive. By accepting his appointment as a Governor, after holding the post of the Chief Justice of India, he has accepted a position in which he would be taking orders, including for his own resignation, from the Home Secretary of the Union Government. Many Governors have received such orders from the present government and have been dismissed for non-compliance. Justice P. Sathasivam has thus accepted a position in which the incumbent is liable to be hired and fired by the Executive. At least, six or seven Governors have been fired by the present government in a little less than one year.
India is a signatory to the `Paris Principles’ or the `Principles guiding National Institutions for the Promotion and Protection of Human Rights’ (1991) which was adopted by the UN Human Rights Commission in 1992 and the UN General Assembly in 1993.
According to the Paris Principles, National Human Rights Institutions (NHRIs) are expected to be “autonomous” and function “independently” of the government and to exercise their power freely to consider any question falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner”. Importantly, a key function of the NHRIs includes to “drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government ”(emphasis ours).
Thus two of the 6 key elements of the `Paris Principles’ require National Human Rights Institutions to be “autonomous” and “independent” of the government in all their functioning.
As the PUCL National President, Prof. Sinha, points out, how will ordinary citizens have confidence in the impartiality, fairness, objectivity and independence of a person who owes his current position as Governor of a state to the pleasure of the ruling Central Government? When such a person, who is seen as being close to the ruling dispensation and Government, is appointed to head the NHRC, not only will the appointment be seen as tainted but it will also affect the very integrity, credibility and authority of the institution meant to protect violation of the human rights of citizens. It needs no emphasis that some of the biggest violators of human rights are state agencies. Following his retirement, Justice Sathasivam's act of accepting the office of the Governor, with its terms and conditions being dishonourable for a former Chief Justice of India, has destroyed the confidence of the people that such a person may ever stand up to his erstwhile master to protect their human rights.
It is precisely such a compromising situation that is anticipated by the United Nations High Commissioner for Human Rights who points out in a Report in 2010:
“True independence is fundamental to success of the institution ... If it is not independent, or not seen to be independent, it is unlikely it will be able to achieve much of lasting worth”.
It will be relevant to point out at this juncture, that apart from `autonomy and independence’ the Paris Principles also stress the importance of (i) `transparency’ in the appointment process, (ii) wide spread `consultation’ with civil society and human rights organisations and (iii) ensuring `pluralism’ and diversity in the selection and composition of members of Human Rights Institutions. Any dilution in the operation of these standards will lead to a downgrading of the NHRC by the ICC, the accreditation body of the UN Human Rights Council. It will seriously affect the trust and confidence of ordinary citizens of India in the NHRC as an impartial body which will protect their human rights.
We would like to reiterate what our National President, Prof. Sinha has requested of you: not to accept the recommendation of Mr. Justice Sathasivam, retired Chief Justice, Supreme Court of India and presently Governor of Kerala, for the post of the Chairperson of the NHRC.
Sir, fortunately in this case, you can protect our human rights by refusing to appoint Justice Sathasivam as chairperson of the NHRC even if his name is recommended. You have to make the appointment of the Chairperson of the National Human Rights Commission not on the advice of the Council of Ministers, which is binding under Art.74 of the Constitution, but on the recommendation of a Committee (consisting of the Prime Minister, the Union Home Minister, the Speaker of the Lok Sabha, the Deputy Chairperson of the Rajya Sabha and the Leaders of the opposition in both the Houses of Parliament) constituted under sec. 4 of the Protection of Human Rights Act,1993, which is not binding under the Constitution. The only limitation on your power to appoint the Chairperson and the members of the NHRC is that you are not empowered to make the appointment without obtaining the recommendation of the said Committee. Therefore in this case, Sir, the final decision vests with you as the President of India, and not with the Cabinet whose advice is mandatory for the President usually, but not in this case.
We are confident you will take an informed decision and decide what is best for the nation and safeguarding human rights.
With best regards,
Prof. Prabhakar Sinha, President, PUCL
Dr. V. Suresh, General Secretary, PUCL
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