Prabhakar Sinha, National President, PUCL - Letter to President of India

Respected Rashtrapatiji,

Subject: Representation against appointment of Shri Avinash Rai Khanna, Vice-President, Bhartiya Janata Party (BJP) as a member of the National Human Rights Commission (NHRC)

The People’s Union for Civil Liberties (PUCL) is an organization, which has been consistently working for protection and promotion of human

rights and civil liberties in the country. It was established by Shri Jayaprakash Narain, Acharya Kriplani, Shri Krishna Kant and others. Justice V.M Tarkunde, Prof. Rajni Kothari, Justice Rajindar Sachar (former Chief Justice of Delhi High Court) and Shri K.G. Kannabiran  have been associated with PUCL as its President. The important judgments by the Supreme Court on the issues taken up by PUCL are: Telephone tapping case (1997) 1 SCC 301; Fake encounter in Manipur (1997) 3 SCC 463; Disclosure of criminal background and assets by candidates contesting for Parliament and the State Legislature (2003) 9 SCC 490; Challenge to POTA (2004) 9 SCC 980; and Right to food which is still pending before the Supreme Court.

We are seriously concerned about the proposal to appoint Shri Avinash Rai Khanna, Vice-President of BJP as a member of the National Human Rights Commission. We wish to make it clear that our objection is not personally against him, but is based on the principle that a politician should not be appointed to an important and high level institution like the NHRC, which is constituted for protection and promotion of human rights of the people of India -a function, which can be performed only by  persons who are non-partisan and above temptation of future personal promotion and prospect . Shri Khanna was earlier appointed as a member of the State Human Rights Commission, Punjab, but resigned to become a member of the Rajya Sabha and is not ineligible for other similar political appointment in the future Besides, a member of a political party is expected to promote the interest of his party and is not trained to act with impartiality and judiciousness required of a member of the NHRC. Additionally, a member of the NHRC, besides having knowledge and practical experience in matters relating to human rights should also enjoy the trust of the people that he would stand to protect their human rights from violation by the governments. As a politician and a Vice-President of BJP, which is a ruling party at the centre and a number of states, Shri Khanna cannot enjoy the trust of the people whose rights he would be expected to promote and protect against the governments of his own party if he is appointed to the NHRC.

The Protection of Human Rights Act, 1993 was enacted pursuant to the commitment of India towards binding covenants, that is Universal Declaration of Human Rights, ICCPR AND ICESCR. It was realized that due to changing social realties, emerging trends in the nature of violence, greater accountability and transparency are required in the implementation of existing laws, procedures and system of administration of justice. Keeping the growing concern about protection of issues relating to human rights that the said law was enacted. Relevant parts of Section 3 and Section 4 of the Act of 1993 are quoted below:

“ 3. Constitution of a National Human Rights Commission:

(1) The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

(2) The Commission shall consist of:

(a) a Chairperson who has been a Chief Justice of the Supreme Court;

(b) one Member who is or has been, a Judge of the Supreme Court;

(c) one Member who is, or has been, the Chief Justice of a High Court;

(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

4. Appointment of Chairperson and other Members:

(1) The Chairperson and [the Members] shall be appointed by the President by warrant under his hand and seal;

Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a Committee consisting of–

(a) The Prime Minister — Chairperson

(b) Speaker of the House of the People — Member

(c) Minister in-charge of the Ministry of Home Affairs in the Government of India — Member

(d) Leader of the Opposition in the House of the People — Member

(e) Leader of the Opposition in the Council of States — Member

(f) Deputy Chairman of the Council of States — Member

Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.”

As mentioned above, a person who is going to be appointed as a member should have knowledge and practical experience in the matters relating to human rights. His stature and qualifications has to be compared with the other members, who consist of judge of the Supreme Court or the Chief Justice of a High Court. Under Section 4 of the Act of 1993, the appointment of chairperson and the members shall be made by the President by warrant under his hand and seal, after obtaining the recommendations of the Committee consisting of Prime Minister, Speaker of the House of People, Minister in-charge of the Ministry of Home Affairs in the Government of India, Leader of the Opposition in the House of People, Leader of Opposition in the Council of States and Deputy Chairman of the Council of States. PUCL submits that the recommendations made by the Committee are recommendations under the Act. These recommendations are not binding on the Hon’ble President as is the recommendation of the Council of Ministers under Art. 74 of the Constitution. The President is therefore free to not accept a recommendation of the committee   in the interest of the people ,who are the real stakeholders and of the  institution for which  the  appointment is  to be made . Under s 4 of the Protection of Human Rights Act , the President is   obliged to make an appointment to the NHRC only after  obtaining the recommendation of the Committee constituted for the purpose but is not bound to accept   the recommendation of the committee.

    We submit that appointment of a political person would not only be against the interest of the people and incompatible with the aims and objects of the highest institution, which is constituted for the protection of human rights, but would send wrong signals to the international community and to the United Nations where the national representatives have to periodically submit the status of implementation of human rights in the country.

      We humbly request that keeping in view the interest of the people of India and the status and dignity of NHRC, no member of a political party should be   appointed as a member to the NHRC, especially, if he is an important functionary of the ruling party.

Sd./-

Prabhakar Sinha, National President, PUCL