Delhi High Court
Association For Development vs Uoi on 3 February, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10296/2009
% Date of decision: 3rd February, 2010
ASSOCIATION FOR DEVELOPMENT ..... Petitioner
Through: Mr. Prashant Bhushan & Mr. Pranav Sachdeva,
Advocates.
Versus
UOI ..... Respondent
Through: Mr. Gopal Subramanium, SG & Mr. Amarjit Singh
Chandhiok, ASG with Mr. Neeraj Chaudhari CGSC &
Mr. Khalid Arshad, Advocate for R-1,2&3/UOI &
NCPCR.
Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Ravinder Singh
& Mr. D.R. Bhatia, Advocates for R-4.
Ms. Meera Bhatia, Advocate for R-7.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. This writ petition in public interest was filed for declaring the
appointment of respondents No.4&5 as members of the National
Commission for Protection of Child Rights (NCPCR) as illegal and void,
alleging that they did not possess the required qualifications as per Section 3
(2)(b) of the Commission for Protection of Child Rights Act, 2005.
Respondent No.1 Union of India and the respondent No.2 NCPCR have filed
a counter affidavit opposing the petition. It is inter alia their plea that the
respondents No.4&5 were nominated as members of NCPCR way back in
April, 2007 and the writ petition filed in July, 2009 after considerable lapse
of time is liable to be dismissed for the reason of latches alone. They have
even otherwise opposed the petition. The respondent No.4 has also filed a
counter affidavit opposing the petition and justifying her appointment as the
member of NCPCR.
2. The term of appointment of the respondents No.4&5 will be expiring
shortly hereafter on 10th April, 2010. No purpose would be served in
adjudicating on that aspect. The Supreme Court in Arnit Das Vs. State of
Bihar (2001) 7 SCC 657 has held that it is settled practice that the Court
does not decide matter which are only of academic interest on the facts of a
particular case. The learned counsel for the petitioner also has fairly not laid
any stress/emphasis in that regard. He has however urged for transparency in
the fresh appointments to be made to the NCPCR.
3. Even though in the writ petition no relief qua appointments in general
to NCPCR has been claimed but we suggested to the learned Solicitor
General to consider the said aspect and the learned counsel for petitioner has
also made several suggestions on the guidelines for future appointments.
4. Section 3 of the Act aforesaid provides for the constitution of the
NCPCR by issuance of notification by the Central Government. The
NCPCR is to consist of a Chairperson and six members out of which at least
two shall be women. Section 3 (2) (a) provides that the Chairperson shall be
a person of eminence who has done outstanding work in promoting the
welfare of children. The members, in terms of Section 3 (2)(b) are required
to be persons of eminence, ability, integrity, standing and experience in,-
(i) Education;
(ii) Child health, care, welfare or child development;
(iii) Juvenile justice or care of neglected or marginalized children or
children with disabilities;
(iv) Elimination of child labour or children in distress;
(v) Child psychology or sociology; and
(vi) Laws relating to children.
5. The proviso to section 4 of the Act provides as under:-
"that the Chairperson shall be appointed on the
recommendation of a three member Selection Committee
constituted by the Central Government under the
Chairmanship of the Minister in-charge of the Ministry of
Human Resource Development."
6. We had during the course of hearing suggested that the Selection
Committee be broad based and suggested the involvement of independent
experts in the field to ensure appointment of appropriate persons as
Chairperson and members of NCPCR. We had also suggested the presence
of the Chairperson of the UPSC and/or the Leader of Opposition in the Lok
Sabha on the selection Committee. The counsel for the petitioner has
suggested the judicial member of NHRC and the Cabinet Secretary to be the
members of the Selection Committee. He has also proposed public
advertisement inviting applications for the post of members of the NCPCR
and putting in place of a procedure for inviting and considering objections
by members of the public to any of the proposed names and certain other
criteria.
7. The Learned Solicitor General without prejudice to his legal
contentions, after obtaining instructions states that the Govt. of India desires
the composition of the Selection Committee for selection of Chairperson and
members to be left to be decided by and with the Minister in-charge of the
Ministry of Human Resource Development as Chairperson of the Selection
Committee. It is however assured that the suggestions aforesaid of this
Court will be kept in view while deciding the composition of the Selection
Committee and at least one member of the Selection Committee shall be an
independent expert of eminence in the field of child rights or welfare. The
Learned Solicitor General has further assured that immediately after
completing the selection process and at least 30 days before the notification
of appointment, the particulars of the members of the Selection Committee
as well as of the selected candidate/s together with their qualification,
experience and expertise shall be put up on the website of the Ministry of
Human Resource Development. The Learned Solicitor General has
contended that the aforesaid will allay the apprehensions expressed and
should be allowed to be tested in the first instance.
8. We are now concerned with the order to be passed in this petition.
We have considered whether any other directions / guidelines for future
appointments as Chairperson and members NCPCR ought to be issued by us
in this petition. As already observed, the petition is confined only to issuance
of a writ of Quo-Warranto for declaring the appointments of respondents
no.4 & 5 as members of the NCPCR as illegal and void and which relief as
aforesaid now no longer survives. We may notice that besides the
respondents 4 & 5, the respondent No.3 had been appointed as Chairperson
of the NCPCR. The petitioner has in the petition itself stated that the bio-
data of the respondent no.3 shows that she at least fulfills the eligibility
conditions of Section 3 of the Act. It thus cannot be said that all
appointments to the NCPCR till now are vitiated. The counsel for the
petitioner has contended that four other persons were sought to be appointed
as members and who did not have the requisite qualification. Certain
documents in this regard were handed over in the course of hearing.
However, the counsel for the petitioner himself states that owing to the
pendency of the present petition, the said appointments were not made.
Thus, it is not as if notwithstanding the present petition, the appointments
contrary to the statute are being made. The writ petition has had its salutary
effect and the assurance meeted out by the learned Solicitor General on
behalf of the government that in future appointments, due regard shall be
given to the suggestions made by this Court and recorded herein above, also
cannot be ignored.
9. It is not as if the Act does not lay down any criteria whatsoever for the
appointments. However we feel that considering the nature of the duties to
be performed by the Chairperson and the members of the NCPCR, it may
not be possible to lay down an objective criteria or qualification for
appointment.
10. The Supreme Court recently in N. Kannadasan Vs. Ajoy Khose
(2009) 7 SCC 104 in para 128, in the matter of appointments to the State
Consumer Dispute Redressal Commission also held that such objective
criteria cannot always be laid down keeping in view the status of the parties.
There will always be an element of subjectivity in the said appointments.
The parliament has reposed faith in the Minister for composition of a
committee to select the Chairperson and members of the NCPCR. In the
absence of anything to the contrary being shown, this Court specially at this
stage, when the petitioner has not even challenged in the writ petition the
selection procedure laid down in the Act, we are not inclined to lay down
any further guidelines or conditions. The concessions made by the learned
Solicitor General are further likely to bring in an element of transparency
and ensure appointments in accordance with the Act.
11. It is well settled that the mere possibility of abuse of process of law,
does not so invalidate a legislation. It must be presumed, unless the contrary
is proved that administration and application of a particular law would be
done "not with an evil eye and unequal hand" (In this regard, see A.
Thangal Kunju Musaliar Vs. M. Venkatachalam Potti AIR 1956 SC 246 &
Budhan Choudhry Vs. The State of Bihar AIR 1955 SC 191 and both
reiterated in Sushil Kumar Sharma Vs. Union of India (2005) 6 SCC 281).
The possibility of an abuse of process of a provision by the authority does
not make the legislation arbitrary or discriminatory or violative of Article 14
of the Constitution. If a statutory provision is otherwise intra vires,
constitutional and valid, mere possibility of abuse of power in a given case
would not make it objectionable, ultra-vires or unconstitutional. In such
cases, the "action" and not the "section" may be vulnerable. The court while
upholding the provision of law, may still set aside the action, order or
decision and grant appropriate relief to the person aggrieved. Similarly, in
Mafatlal Industries Ltd. Vs. Union of India (1997) 5 SCC 536 a Bench of
nine Judges observed that mere possibility of abuse of a provision by those
in-charge of administering it cannot be a ground for holding the provision
procedurally or substantively unreasonable. It must be remembered that
merely because power may sometimes be abused, is no ground for denying
the existence of power. The wisdom of man has not yet been able to
conceive of a government with power sufficient to answer all its legitimate
needs and at the same time incapable of mischief. The Court only interprets
the law and cannot legislate it. If a provision of law is misused and subjected
to the abuse of the process of law, it is for the legislature to amend, modify
or repeal it, if deemed necessary.
12. In the present case, the petitioner has not laid any foundation with
specific plea, with reference to facts and figures of the need for this Court to
lay down any more / further guidelines / criteria in the matter of appointment
than already existing in the Statute.
13. The Supreme Court in People's Union for Civil Liberties Vs. Union
of India (2005) 5 SCC 363 was concerned with a challenge to the
appointment as a member of the NHRC of a person who prior to the
appointment was holding the post of Director, CBI and also holding the post
of Vice President (Asia), Interpol. The Supreme Court held that neither the
UN Resolution relating to setting up of NHRC nor the Act expressly or
impliedly exclude the inclusion of a Police Officer in the Commission. It
was held that in the absence of any challenge to the validity of the Act, as in
the present case, the Court has to proceed on the basis that the Act is intra
vires; it was further held that the Act requires the members to be appointed
from amongst the persons having knowledge or practical experience in
matters relating to human rights. A plain reading of the said provision does
not give any room for interpretation because the language is quite clear. It
was further held that the language cannot be distorted by any inference
based on any public perception or prejudice. It was further held that the
Court should read the section as it is and cannot rewrite it to suit its
convenience.
14. In this regard reference may also be made to Duport Steels Ltd. v.
Sirs (1980) 1 All ER 529 quoted with approval in the recent dicta in
Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore MANU/SC/0016/2010
as under:-
"But in the field of statute law the judge must be obedient to
the will of Parliament as expressed in its enactments. In this
field Parliament makes and unmakes the law. The judge's
duty is to interpret and to apply the law not to change it to
meet the judge's idea of what justice requires. Interpretation
does, of course, imply in the interpreter a power of choice
where differing construction are possible. But our law
requires the judge to choose the construction which in his
judgment best meets the legislative purpose of the
enactment. If the result be unjust but inevitable, the judge
may say so and invite Parliament to reconsider its provision.
But he must not deny the statute".
15. It is not the duty of the Court to enlarge the scope of the legislation
when the language of the provision is plain and unambiguous. The court
cannot rewrite, recast or reframe the legislation for the very good reason that
it has no power to legislate. The court cannot add words to a statute or read
words into it which are not there. Though, of course a proceeding even at the
instance of a busy body for issuance of writ of quo warranto questioning any
particular appointment would be maintainable.
16. Having said so, we may nevertheless quote from Global Energy Ltd.
Vs. Central Electricity Regulatory Commission AIR 2009 SC 3194:-
"The law sometimes can be written in such subjective manner
that it affects efficiency and transparent function of the
government. If the statute provides for point-less discretion to
agency, it is in essence demolishing the accountability strand
within the administrative process as the agency is not under
obligation from an objective norm, which can enforce
accountability in decision-making process.......... A modern
deliberative democracy cannot function without these
attributes.........The image of law which flows from this
framework is its neutrality and objectivity: the ability of law to
put sphere of general decision-making outside the discretionary
power of those wielding governmental power. Law has to
provide a basic level of "legal security" by assuring that law is
knowable, dependable and shielded from excessive
manipulation".
17. We express our sincere hope that the Minister, being the Chairperson
of the Selection Committee will give regard to the aforesaid principles in
choosing the other members of Selection Committee and also consider
framing guidelines for constitution of Selection Committee to eliminate
allegations of arbitrariness from future appointments and bring more
transparency and objectivity therein. Further, in view of the statement made
by the Solicitor General, we at this stage do not feel the need for making any
further directions specially since the Solicitor General himself has fairly
stated that the appointments to be made in terms of the statement recorded
herein above be allowed to be tested in the first instance. We therefore
dispose of this petition binding the government with the statement made and
recorded herein above.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW
(JUDGE)
February 3, 2010
pp/gsr
