Girish Menon, The Hindu, 4 July 2006
Over Ordinance to amend provisions on qualification of chairperson
Thiruvananthapuram: The Government's decision not to re-promulgate the Protection of Human Rights (Amendment) Ordinance has virtually set the stage for another round of legal battle. Government sources said the decision not to re-promulgate the Ordinance seeking to amend provisions relating to the qualification of chairperson would restore the original provisions in the Act, requiring a retired Chief Justice to be appointed to the post. The Ordinance also sought to reduce the number of members in the commission from five to three.
The entire issue revolves around the appointment of V.P. Mohan Kumar, who retired as Acting Chief Justice of Kerala High Court, as member of the Human Rights Commission. This was challenged in the High Court, seeking a direction not to appoint him as Chairperson. On February 13, 2004, Mr. Mohan Kumar was appointed acting Chairperson of the commission. This appointment, it is pointed out, was not challenged. The High Court on March 13, 2004 restrained the functioning of the commission till the Chairperson and other members were appointed.
The State Government challenged this order before the Supreme Court. The Supreme Court on July 16, 2004 suspended the High Court order and directed that Mr. Mohan Kumar function as acting Chairperson, besides allowing the HRC to function with two or three members subject to the appointment of the third member.
SC order in operation
On February 10, 2006 while disposing of the Special Leave Petition, the Supreme Court noted that the Kerala Government had promulgated an Ordinance on the qualification of the Chairperson. It said its earlier order on July 16, 2004 would continue in operation till the disposal of the main writ petition by the High Court. It has been contended that since the main writ petition has not been disposed of by the High Court so far, the Supreme Court order was still in operation. By virtue of this, the High Court stay of March 13, 2004 stood suspended and Mr. Mohan Kumar was allowed to function as Acting Chairperson till the disposal of the main writ petition.
According to sources close to the commission, the appointment of Mr. Mohan Kumar as acting Chairperson was under Section 25 of the Protection of Human Rights Act and the Ordinance in fact intends to amend Section 21 of the Act dealing with the qualification of the Chairperson.
`Of no consequence'
The decision not to promulgate the ordinance is of no consequence for the Acting Chairperson to be in office and the commission to function.
Besides, a chairperson or a member can be removed only as per prescribed procedures. Specific charges would have to be framed and forwarded to the President of India, who would have to request the Chief Justice of India to nominate a Supreme Court judge to conduct an inquiry into the charges.
It also pointed out that even if the original provision of the Act comes into play subsequent to the expiry of the Ordinance, a new member cannot be appointed and the commission's strength increased.
2 judges can be members
As per the law now in force, only two retired High Court judges can be commission members. As it is, there are already two and a third judge cannot be appointed unless the services of one is terminated according to statutory provisions. Besides, the new appointment can be made only by the appointment committee consisting of the Chief Minister, the Home Minister, the Speaker and the Leader of the Opposition meeting and concurring to decide, sources said.
Clarifying the Government position, Law Minister M. Vijayakumar said the decision not to re-promulgate the Ordinance has in effect removed the protection afforded by the Ordinance in relation to reducing the qualification of the chairperson and the number of members in the commission. The Government would take an appropriate decision on the writ petition now before the High Court, he added.
Meanwhile, Joemon Puthenpurackal, who had filed the original writ plea before the High Court, said he had submitted a complaint to the Law Minister seeking action against the officials for having filed an appeal before the Supreme Court against the High Court order.