A change in the occupancy of 7, Race Course Road, is spelling change in the composition of statutory bodies in India. With the Governors of various States, the office-bearers of the National Disaster Management Authority and the Chairperson of the National Commission for Protection of Child Rights (NCPCR) having been asked to resign, there is a sense of déjà vu: in 2005, the UPA government sacked three members of the National Commission for Women (NCW) before the completion of their term, in gross violation of the removal process stipulated by the NCW Act. Nirmala Sitharaman, a Union Minister of State in the current government, who was one of the members who was removed then, had reportedly called it an “unconstitutional”, “condemnable” and “ill-advised” move. On June 9, when Kushal Singh, Chairperson, NCPCR, approached the Delhi High Court urging it to restrain the government from compelling her to resign, the Court asked, “Where is the cause of action? They have not done anything to remove you.”
Lack of procedures for selection
Although meant to function as watchdogs, human rights institutions in India are treated as subordinate departments with scant regard for their autonomy or statutory character. The political establishment uses them to accommodate their favourites and this explains the pressure on members to quit. Such brazen display of power is possible because of a lack of clear provisions in legislation on selection procedures along with a complete disregard for procedures for removal of members. In the case of the Commission for Protection of Child Rights, appointments are increasingly coming under the judicial scanner as governments have been sluggish in notifying detailed guidelines that can ensure open, transparent and competitive selections to these important public offices.
In two separate judgments (Association for Development v. Union of India, 2010 and 2013), the Delhi High Court emphasised the need for fair and transparent appointments and urged the Ministry of Women and Child Development (MWCD) to develop “objective evaluation methods” to appoint members to the NCPCR. In the 2013 decision, the source of recommendations for candidates was brought on record. Unsurprisingly, of the 130 applications, 35 had been recommended by Union Ministers, 18 were political party functionaries (of which 17 were Congress leaders), 33 had been recommended by MPs and MLAs, seven by Chief Ministers and State Cabinet Ministers, 10 by NCPCR, and three by the Prime Minister’s Office. The petitioners claimed that the Selection Committee “took no steps to verify the credentials” of the candidates. The Delhi High Court quashed the appointment of Dr. Yogesh Dube as Member of the NCPCR on the ground that it was “not based on any objective guidelines.”
Dr. Dube appealed this decision before the Supreme Court, which, in its order dated February 25, 2014, scathingly observed that it saw “no reason why norms and guidelines for selection of candidates should not be framed and published so that the entire process of selection is fair, reasonable, objective and transparent.” The Court observed that “[r]eceiving applications from candidates recommended by people who have no role to play in the process of selection may in fact have the effect of rendering the selection process suspect, for any such recommendations are most likely to influence the selection process in a subtle manner to the prejudice of other candidates who are not resourceful enough to secure such recommendations, no matter they are otherwise equally, if not more, meritorious.”
Eligibility and selection norms
After being judicially rebuked thrice, the MWCD amended the NCPCR rules twice this year (in March and May) to specify eligibility and selection norms. Only Indian nationals who are graduates from a recognised university, who have no record of conviction or imprisonment for an offence or have been removed or dismissed from government service, are eligible. Vacancies have to be advertised in at least four national dailies and also publicised on the Ministry’s website. The Selection Committee is chaired by the Minister-in-charge, with the Secretary of the Ministry and one independent expert nominated by the Minister as members. These provisions may not entirely check political interference and are marginal steps toward streamlining the process.
In many States, appointments are being challenged for having been made on political grounds and this should compel State governments to amend their rules and include selection guidelines in order to insulate appointments from political interference. An important judgment came on February 11, 2014 from the Gauhati High Court, where a Single Judge quashed the appointment of Juriti Borgohain as Chairperson of the Assam State Commission for Protection of Child Rights (ASCPCR) on grounds that it was arbitrary and in gross violation of the selection procedure mandated under the Commissions for Protection of Child Rights Act, 2005 (CPCR Act). Justice Ujjal Bhuyan observed that the Selection Committee did not record its satisfaction about Ms Borgohain’s suitability, nor did it recommend her or anyone to the State government for appointment, and that “…it was a decision of the Chief Minister which was imposed on the Selection Committee.” It termed this lapse not only a “procedural defect” but “an infirmity” that “strikes at the very root of the decision-making process itself,” which the court has the power to review. It concluded that the breach of the mandatory procedure stipulated under the Act rendered the appointment untenable.
While the MWCD was compelled to amend its rules and specify selection procedures as a result of court directions, the Gauhati High Court gave no such directions to the Assam government and it is unclear how similar episodes of political interference will be prevented from recurring. Assam is the only State in the country to have constituted the Commission as early as 2010, but has still not notified the rules detailing the selection process, salaries and allowances, and administrative matters, thereby leaving matters to political uncertainties and executive discretion.
According to the Paris Principles Relating to Status of National Institutions (1993), which serve as an international benchmark, independence from the government is one of the most crucial elements in building effective human rights institutions. This principle is seriously undermined whenever there is political interference in appointments and whenever the tenure and stability of these institutions is subject to the whims and fancies of the government. The judiciary has played its part well by revoking such arbitrary appointments, but now it is for the government to demonstrate its willingness to establish strong and independent institutions according to the rule of law.
Change for the sake of change is meaningless; change in the guise of political opportunism is condemnable.
(Swagata Raha and Archana Mehendale are independent researchers working on human rights institutions for children.)