The pandemic claimed countless victims across India for several months now. It was expected, once the lethal effects of the Wuhan virus were known. Till such a time as a vaccine was discovered, all were helpless. And the media was full of news about the scourge, with no space or stamina left for any other news. But then, it must be said that the media were discharging their responsibility towards the general public. Away from the public gaze, however, the pandemic claimed another victim, a most improbable one, so to say ‘institutional in tegrity’.
A landmark judgment of a Division bench of the apex court, headed by the then Chief Justice had ruled that good governance implies that the Executive must ensure “integrity of the institutions” so that the rule of law is safeguarded. This buttressed the earlier finding of the World Bank that rapid economic growth is brought about not by individuals, however bright but sound institutions, however imperfect. India is a signatory to the UN Convention on Human Rights, committed to protect individual freedom and liberty. It is as it sho – uld be, being the world’s largest democracy under the rule of law.
In order to protect individual liberty, India enacted the Human Rights Protection Act, 1993, in concert with other democracies. The Act provides for the establishment of a National Human Rights Commission, to be headed by a former Chief Justice of India and four other members, including a Chief Justice of a state high court. Ever since the establishment of the Commission, it has been headed by a former Chief Justice of India, in accordance with law.
In a departure from law, the Government appointed a retired judge of the Supreme Court. This has serious implications for the rule of law. Secondly, it sets up an unhealthy precedent by vesting the Executive with discretion to pick and choose retiring judges who may be most “convenient.” Thirdly, and which is most serious, it will compromise the ‘independence of the judiciary’, part of the basic structure of the Constitution. It is a violation of the apex court judgment in the celebrated case of Keshvananda Bharti outlining the inviolability of the ‘basic structure’ of the Constitution.
The preamble to the Commission outlines the institution as an aid to “better protection of human rights”. The next logical issue that is seldom raised in the public narrative is protection against whom? Obviously, against the State and its everexpanding coercive agencies. It implies that the Commission must be independent of the Government so that it can be effective in safeguarding the rights of the common man. For this reason, the Parliament in its wisdom provided for the appointment of a retired Chief Justice of India so as to leave no discretion with the Executive to pick and choose ‘convenient’ judges.
By appointing a retired judge other than the Chief Justice, the government has through this seemingly minor deviation from the law, assumed, through the back door the authority to pick and choose retiring judges. This has the potential to compromise the independence of the judiciary, contrary to the ‘basic structure’ of the Constitution. Once this possibility is there before the serving judges of the apex court, the temptation to go soft on the executive cannot be ruled out.
A Supreme Court judge retires at 65 years but in the Commission, he can serve up to 70 years. As a great judge of the US Supreme Court, Justice Jackson put it: “It is easier to bribe a judge by ambition than by money.” His wisdom was repeated in the Indian context by the distinguished former Chief Justice of India, late P.N. Bhagwati. As it is, the composition of the Commission vests with the Government. But the discretion of the Government was circumscribed by the Act itself.
Another member is a sitting or retired judge of the Supreme Court. Regarding the high courts, the Executive has the limited discretion to appoint only a retiring or retired chief justice. There is some kind of check on appointment of sitting members of the higher judiciary in the form of man datory consultation with the Chief Justice of India. Two other members must be those having “practical experience relating to human rights.” Basically, the Commission serves as a kind of check on Executive exce sses on the hapless citizen. It is authorized by law to investigate offences by the main coercive arm of the state ~ the police. Year after year, the maximum number of complaints with the Commission relate to police excesses.
And yet a retired police officer is invariably appointed as a member. The government in its great wisdom is of the view that unless the accused, so to say, is a part of the investigation agency, human rights cannot be upheld. Never mind that the First Police Commission had specifically recommended that to obviate the politicisation of the police, retiring senior officers should not be tempted with post-retirement sinecures. The subtle attempt to manipulate what might be called the last vestige of police accountability did not escape international opprobrium. The then chief of South Asian UN Human Rights body resigned in protest.
The Government’s response was on expected lines ~ ‘bash on, regardless.’ The current Commission also comprises a retired police officer, besides a retired jud ge of the apex court as the Chairman. This subtle attempt to subvert an institution set up under an international Convention is bound to get noticed, sooner or later. It will further demote India in the UN’s Human Rights index. Coming back to the current composition of the Commission, it must be said with respect that the Chairman was not exactly lauded by the nation for his independence from the ruling executive while serving in the apex court. His formal address before an international jurists meet, openly extolling the ruling political dispensation was widely reported in the national media.
With the advantage of hindsight, it could be said that the Hon’ble Judge was preparing for his post-retirement reward. His somewhat embarrassing paeans of praise for the political executive did get favourably noticed. The judge retired in 2020. He was residing in prime Government accommodation in the heart of Lutyens’ Delhi, which he was expected to vacate soon thereafter, ironically in terms of several rulings of the apex court itself. The Court has repeatedly frowned upon the practice of politicians and government servants lingering in official accommodation even after their term is over, on one pretext or another. But the judge lingered on for several months, perhaps in the surety of a post-retirement sinecure. Several months later, he was appointed to the present post, even though not eligible. Obviously, he must have meanwhile kept his political contacts alive. In sum, another hallowed institution has been hollowed out.
(The writer is a retired IAS officer)