On 26 February 2004, the People’s Union for Civil Liberties (PUCL) filed a petition before the Supreme Court of India challenging the legitimacy of the appointment of Mr. P.C. Sharma, former director of the Central Bureau of Investigation (CBI), to India’s National Human Rights Commission (NHRC). The initial two-judge decision delivered a split verdict on 18 January 2005, and the matter was consequently referred to a three-judge bench. On 29 April 2005, the larger bench of the Supreme Court ruled unanimously in favour of upholding Mr. Sharma’s appointment. 

The final ruling was problematic in one critical aspect. While the outcome was not unexpected, the Court lapsed in its reading of the most critical provision relevant to the Sharma case; the requirement that any candidate possess “knowledge of, or practical experience in, matters related to human rights.”  

The endorsement of Mr. Sharma’s appointment did not confer legitimacy upon it. It did, however, serve to expose the hollow pretences of the Protection of Human Rights Act (PHRA) in protecting human rights, despite this being outside the scope of the Court’s review. More specifically, it confirmed what Human Rights Features has long since protested; that the appointment process, and the structure of the Select Committee, is so weighed in favour of the government of the day that the idea of independence is trampled underfoot. 

Knowledge or Practical Experience under the PHRA 

The initial judgment of Justice Y.K. Sabharwal had primarily challenged the validity of having a former police officer serve as a Member of the NHRC on the grounds that this did not encompass the required criteria of “knowledge of, or practical experience in, human rights [where human rights is deemed to encompass “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”]. He surmised that “[T]he knowledge or practical experience in relation to commission of crime, investigation and solving a crime which may show violation of human rights is one thing and the knowledge or experience relating to protection of life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India is altogether different.” He thus correctly held that “The requirement of section 3 (2)(d) – relating to the constitution of the Commission is of [the] latter and not [the] former.” The PHRA definition of knowledge of human rights encompasses all civil and political, economic, social and cultural rights in very detail; not just in the realm of criminal procedure, which constitutes a fraction of human rights violations. 

How do policemen fare? 

In the present judgment, the respondent outlined the qualifications of Mr. P.C. Sharma to the Court as per Section 3(2)(d), amounting in total to his involvement in the Punjab mass cremation cases, and his Vice-Presidency of Interpol (Asia), which involved developing mechanisms in police co-operation on crimes such as terrorism, “human safety”, and trafficking. 

The Court, without demur, accepted this as adequate, and in so doing, in our respectful opinion, erred severely in its judgment. Firstly, terrorism and trafficking do not strictly fall within the ambit of human rights violations as embodied in the International Covenants, despite the inclusion of terrorism in the PHRA (Section 12) as a factor that the NHRC may consider, as they are perpetrated not by States but by non-state actors. They are, more correctly, transnational crimes, and that is why Interpol, and not the NHRC, work primarily in this field. Consequently, this experience is of no great import to the Commission, and does not correlate to the “knowledge or practical experience” criteria.  

A look at the biography of Mr. Sharma on the website of the Commission substantiates this lack of experience. All that he can point to is his participation “in various international seminars” on economic offences, corruption, money laundering and “the Ombudsman.” None, bar possibly corruption, have any great bearing on human rights, drawing the reasonable conclusion that he does not come close to what the PHRA envisages under section 3(2)(d). 

Yet the Court did not give any consideration to this most critical aspect, choosing rather to concentrate on the arguments of the impossibility of gauging public perception of the police. The biggest misperception here was judicial. 

Still not clear? Turn to the Paris Principles 

Secondly, the three honourable judges in our respectful opinion were mistaken in their dismissal of the Paris Principles – the minimum standards governing the establishment and functioning of national human rights institutions. Whereas the petitioner had detailed the Paris Principles as the means by which the PHRA should be interpreted in order to uphold the spirit of the Act, the Court ruled that the Act is intra vires in so far as the Paris Principles “neither expressly or impliedly exclude the inclusion of a Police Officer in the Commission.” 

The bench determined that no interpretation was necessary as Section 3(2)(d) was “express in its language” and that “once the Indian legislature enacts a law pursuant to an international convention then the legislative area in that field being covered it is the municipal law alone that prevails hence, the validity of the appointment of second respondent can only be examined with reference to the provisions of the act.” Whilst the prevalence of domestic law is undoubtedly correct, and while the Principles do not even attain the legal status of a Covenant, the above is a misapplied and overly narrow reading of the role of international guidelines. 

Firstly, the judgment states that the PHRA is clear in its meaning. Yet, whilst it may be express in its language, it still lacks legal definition, most precisely in what “knowledge” or “practical experience” may constitute. This is something that the Supreme Court is invested with the powers to determine, and this would be done by applying international norms where gaps in municipal law exist, precisely in an instance such as this where the PHRA was enacted following the adoption of the Principles by the UN General Assembly. 

The correlative importance of Section 12 of the PHRA was overlooked by the honourable Court, which details the function of the Commission. By extension, knowledge or practical experience would be expected to enable a Commissioner to adequately fulfill these functions. This includes reviewing safeguards provided under the Constitution or any law, making recommendations for the effective implementation of international instruments, and encouraging the efforts of non-governmental organisations and institutions working in the field of human rights. It also includes, most importantly, the provision for “such other functions as it may consider necessary for the protection of human rights.” And it here that attention should have turned to the Paris Principles, whereby they refer instead to what should have been a beacon to the Court; the “competence and responsibilities” of institutions. 

Determination may be drawn from what the Paris Principles envisage to be the role of Commissioners, as outlined in Section 3(a)-(g). If an appointee is suitably capable of fulfilling these tasks, additional to the express PHRA provisions, then they could be said to meet the criteria of Section 3(2)(d) of the PHRA. Additional to the Act, the Principles mention advisory submissions to Parliament on any matters, encouraging ratification of international instruments, contributing to reporting to UN bodies and Committees, assisting on the formulation of teaching programs for execution in schools, etc., and publicising efforts to combat discrimination, in particular racial discrimination. 

A cross-reference of the professional experience of Mr. P.C. Sharma, to compound the argument put forward by Justice Y.K. Sabharwal, does not exhibit any competency to fulfill these tasks, either within the PHRA or by reading into international guidelines to expand upon the “other” functions that the Act might envisage according to its spirit. What could a police officer know about the entire range of legislative provisions intended to preserve and extend the protection and promotion of human rights, about submitting shadow reports to the Committee on the Rights of the Child, for example, or combating racial discrimination and formulating programmes for teaching in schools?  

Here the Principles contribute to what knowledge or experience would encompass. The Court instead held forth a positivistic allegiance to municipal law and in so doing entirely missed the core component of Mr. Sharma’s unsuitability to the post of Commissioner.  

Conclusion 

There are a number of factors that have led to the appointment of Mr. P.C. Sharma that could and should have been avoided. He should not have been forwarded for consideration, a move, to quote Ms. Nirmala Sitharaman in the context of the dismissal of three members of the National Commission for Women, that “sends a message of utter disregard to institutions”. Likewise, Mr. Sharma should not have been endorsed by five of the six members of the Select Committee. And he should have had the humility and good grace to turn down the offer, knowing full well the impact that it would have. The end result is that the NHRC is internally weakened and externally discredited, despite what the Supreme Court has to say about public perception and international guidelines. 

Only a thorough amendment of the PHRA can halt the political manipulation and discrediting of a once reputable institution. And no institution is better placed to press for reform than the NHRC itself. The irony, of course, is that a certain Mr. Sharma may not warm to the idea of shooting himself in the foot, and so the inexorable decline in standards is likely to continue.

 Human Rights Features