IN THE SUPREME COURT OF INDIA

IN THE SUPREME COURT OF INDIA

UNDER ORDER XXXVIII RULE 7CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2015IN THE MATTER OF: Dr. Adish C. Aggarwala Dr. Adish C. Aggarwala Dr. Adish C. AggarwalaDr. Adish C. AggarwalaSenior Advocate

R/o DS-423/424, New Rajinder Nagar

New Delhi-110060

.Petitioner

VERSUS

1. Union of India

Through Secretary

Ministry of Home,

North Block, Central Secretariat,

New Delhi- 110001

Respondent No.1

2. Committee (constituted under

Section 4 of Protection of HumanRights Act, 1993)

Through Cabinet Secretary

Cabinet Secretariat,

Rasthrapati Bhavan

New Delhi-110001

Respondent No.2

3. Cabinet Secretary

Cabinet Secretariat,

Rasthrapati Bhavan

New Delhi-110001

.. Respondent No.3

(All Contesting Respondents)AND IN THE MATTER OF:

A WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA PRAYING FOR A WRIT OF MANDAMUS OR ANY APPROPRIATE WRIT DIRECTING THE RESPONDENT TO APPOINT CHAIRPERSON, NHRC ACCORDING TO LAW LAID DOWN IN NAMIT SHARMA VS UNION OF INDIA (2013) 1 SCC 745) AND Centre for PIL VS UOI, (2011) 4 SCC 1) AND FURTHER DIRECTIONS FOR FUTURE APPOINTMENTS AND AGAINST THE ILLEGAL AND ARBITRARY CONSIDERATION OF SOLE CANDIDATE FOR THE POST OF CHAIRMAN, NHRC. TO

THE HONBLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HONBLE SUPREME COURT OF INDIA

The humble Petition of the Petitioner above named:

MOST RESPECTFULLY SHEWETH:1. That, the present Writ Petition is being preferred by the Petitioner association herein in Public Interest & in public spirit against the Respondent for appointment of the Chairperson, NHRC according to the law laid down in Namit Sharma Vs Union of India (2013) 1 SCC 745) and Centre for PIL Vs UOI, (2011) 4 SCC 1) and against the illegal and arbitrary consideration of sole candidate for the post of Chairman, NHRC without following the proper procedure. 2. That, the Petitioner herein is also seeking a direction for the future to the Union of India to frame a transparent selection procedure based on definite criteria, and by preparation of empanelment by constituting a search committee which will place on record the various applications as well as definite options of the Retired former Chief Justices of India who are below the age of 70 years after taking their respective consent as well as the complete information, material and comparative data of the empanelled persons before the Committee as contemplated under Section 4 of the Act which will recommend the most suitable person for appointment as the Chairperson, NHRC to the President of India. 3. That, the Petitioner most humbly begs to state that the cause of action of this Writ Petition has never been raised earlier by the Petitioner in any other Writ Petition before this Honble Court or any other Court/Authority in any manner whatsoever and this Petition is in the nature of public interest litigation. 4. That the facts leading to filing present Writ Petition are briefly stated as follows:

i. That, Dr. Adish C. Aggarwala, Senior Advocateis Chairman, All India Bar AssociationFormer Vice-Chairman, Bar Council of India, Former Chairman, Bar Council of Delhi, Former Vice ChairmanBar Council of Delhi, Former Senior Additional Advocate General of Govt. of Haryana, Former Additional Advocate General of Govt. of Punjab, Govt. of Uttar Pradesh and Govt. of Tamil Nadu, Former Vice-President, Supreme Court Bar Association.All India Bar Association/ the Petitioner herein is an Association of various legal fraternities and is committed to a more integrated lawyer community. The Association has been established with a view to facilitate greater interaction and understanding amongst legal fraternity of India. It also aspires to strengthen the relationship between the Bar and the Bench, in turn building an environment conducive to effective administration of justice and maintenance of rule of law.ii. That Mr. Aggarawala through its Association aims at upholding the Constitution of India and the representative, free and democratic form of the Government. It promotes the science of Jurisprudence and encourages research in legal and allied fields. The Association also regularly makes recommendations for improvement of standards of legal education throughout the country. It conducts seminars, symposia, conferences on critical issues of contemporary interest to impart knowledge to the public at large. The conferences were attended by Mrs. Pratibha Devisingh Patil, the then President of India; Dr. APJ Abdul Kalam, the then President of India; Mr. K.R. Narayanan, the then President of India; Mr. M. Hamid Ansari, Vice President of India; Dr. Manmohan Singh, the then Prime Minister of India; Lord Phillips, the then Chief Justice of England and Wales; Dr. Justice K.G. Balakrishnan, the then Chief Justice of India; Ms. Justice Beverley Mc Lachlin, Chief Justice of Canada; Mr. Justice Awn S Al-Khasawneh, the then Vice President of International Court of Justice; Mr. Justice Chan Sek Keong, the then Chief Justice of Singapore; Mr. Justice Sundaresh Menon, Chief Justice of Singapore; Mr. Michael Hwang SC, Chief Justice of Dubai International Financial Centre Courts; Mr. Sushilkumar Shinde, former Minister for Home Affairs of India; Dr. Hadef Jawa'an Al Dhaheri, Minister of Justice, United Arab Emirates; Mr. Justice Y.K.J. Yeung Sik Yuen, the then Chief Justice, Supreme Court of Mauritius; Mr. Arun Jaitley, the then Law Minister of India; Mr. Ram Jethamalani, former Law Minister of India; Dr. Tun Shin, Attorney General of Myanmar; Mr. Antonio Maria Costa, Director General, United Nations Office on Drugs & Crime; Mr. Justice Hassan B. Jallow, Chief Prosecutor, UNICTR; Mr. Wm. T. (Bill) Robinson III, the then President, American Bar Association; Mr. Stephen L. Dreyfuss, President, International Association of Lawyers; Prof. Alexander J. Belohlavek, President, World Jurist Association; Mr. Mark Stephens, CBE, President, Commonwealth Lawyers Association; Prof. Peter Mutharika of Malawi, now President of Malawi; Sir James R. Mancham, Founding President of Republic of Seychelles; Mr. Justice Dalveer Bhandari, Judge, International Court of Justice; Mr. Akira Kawamura, President, International Bar Association; Mr. Fernando Pombo, the then President, International Bar Association; Ms. Christiane Feral-Schuhl, the then President, Paris Bar Association besides Honble Judges of Supreme Court of India and different High Courts in India.iii. That the present Writ Petition is being filed against the arbitrary exercise of power by the State infringing Article 14 of the Constitution.iv. That Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. All are equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.v. That Preamble of the Universal Declaration of Human Rights provides as below:-Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,vi. That Human Rights also include Civil and Political Rights, Economic Social and Political Rights, Rights of Children and further Elimination of Discrimination.vii. That the National Human Rights Commission (hereinafter referred to as the Commission) is the supreme human rights watch body of the country. It has been constituted under Section 3(1) of the Protection of Human Rights Act, 1993 (hereinafter referred to as the Act) and is headed by a Chairperson who is required to be a Former Chief Justice of the Supreme Court. The Chairperson of the Commission must be a person of unflinching integrity, who is competent to deal with cases without fear or favour, and can uphold the rights enshrined in the Constitution. He has to be a person with a reputation for independence, with no prior commitment, political leanings, loyalty or obligation.viii. The Commission hears complaints of violation of human rights by the Government. Such complaints have to be adjudged with utmost impartiality. In order to zealously guard the independence of members of the Commission, the Act restricted membership of the Commission to judges and human rights experts. It did not provide for any representative of the Government, or any person holding any office under the Government being appointed as member of the Commission. The spirit of the Act is aimed at keeping away persons having loyalty to the Government or any political party that may manifest itself into favouritism or undue leverage to the executive. Also, to deter the Government and its officers from seeking judicial favours and offering, in return, post-retirement sinecures/employment as an incentive to the members of the Commission, Section 6(3) of the Protection of Human Rights Act, 1993 laid down that on ceasing to hold office, the Chairperson and Members of the Commission shall become ineligible for further employment under the Central or State Government. This was aimed at insulating the Commission from any influence that may be exerted by the Government.ix. TheNational Human Rights Commission(NHRC) ofIndiais an autonomous public body and was constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993.It was given a statutory basis by the Protection of Human Rights Act, 1993 (TPHRA).The NHRC is thenational human rights institution, responsible for the protection and promotion of human rights, defined by the Act as "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants".

The NHRC consists of:

A Chairperson

One Member who is, or has been, a Judge of theSupreme Court of India

One Member who is, or has been, the Chief Justice of a High Court

Two Members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights.

In addition, the Chairpersons of four National Commissions of ( 1.Minorities 2.SC 3.ST 4.Women) serve asex officiomembers.

Sections 3 and 4 of TPHRA lay down the rules for appointment to the NHRC.

4. Appointment of Chairperson and other Members

(1) The Chairperson and [the Members] shall be appointed by the President by warrant under his hand and seal;

Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a Committee consisting of

(a) The Prime Minister Chairperson

(b) Speaker of the House of the People Member

(c) Minister in-charge of the Ministry of Home Affairs in the Government of India Member

(d) Leader of the Opposition in the House of the People Member

(e) Leader of the Opposition in the Council of States Member

(f) Deputy Chairman of the Council of States Member Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.

(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any [vacancy of any member in the Committee referred to in the first proviso to sub-section (1)].x. That theNational Human Rights Commission(NHRC) ofIndiais an autonomous public body and was constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993.It was given a statutory basis by the Protection of Human Rights Act, 1993 (TPHRA).The NHRC is thenational human rights institution, responsible for the protection and promotion of human rights, defined by the Act as "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants". Various Indian States have also set up their own human rights commissions to deal with violations from within their states. The various functions of the Commission have been provided under Section 12 of the Act which is reproduced as below:-12. Functions of the Commission

The Commission shall perform all or any of the following functions, namely:-

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court], into complaint of

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights;

(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

(j) such other functions as it may consider necessary for the protection of human rights.xi. That from 12.10.1993- till date, various eminent Former Chief Justices of this Honble Court were appointed as the Chairpersons of NHRC.xii. That decision of Kovai Medical Centre Research & Educational Trust & Others vs. State of Tamil Nadu & Others. Writ Petition No. 16417/1998 (reported in Manupatra as MANU/TN/2029/2010) is pertinent to be mentioned here. Ms. K. Palaniammal is the mother-in-law of Mr. Srinivasan, son of Justice Sathasivam. She had acquired rights in land (Survey Nos. 801/1G, 801/1H and 801/2 (Part) in Kalapatti Village in Coimbatore District to the extent of 98 cents, which had already been acquired by the Government. Land, once acquired vests in the Government. Such land cannot be sold or purchased. Though others kept distance from such land, Ms. K. Palaniammal somehow saw manifold profit in the deal. Despite knowing of the duly notified acquisition, she invested in the said land. She, vide her letter dated 6.12.2004, then urged the Government of Tamil Nadu to re-convey the land to her. This request was rejected by the Government vide letter dated 27.3.2007. As held in the cases of Avadh Behari Yadav v. State of Bihar &. Ors., (1995) 6 SCC 31, Allahabad Development Authority v. Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu & Ors., (2000) 4 SCC 322, and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR 2005 SC 492, once land is acquired, even if it wants, the Government cannot divest itself of the land. So the rejection of her representation was inevitable and as per law. The law clearly lays down that anyone who deals with acquired land does so at his own peril and such a transfer is void (Pandit Leela Ram v. Union of India, AIR 1975 SC 2112, Sneh Prabha v. State of Uttar Pradesh, AIR 1996 SC 540, Union of India v. Shri Shiv Kumar Bhargava & Ors., JT (1995) 6 SC 274, U.P. Jal Nigam v. M/s. Kalra Properties Pvt. Ltd., AIR 1996 SC 1170). It is come to the knowledge that at that stage, Justice Sathasivam used his influence to prevail upon the Government of Tamil Nadu. The Government under his influence got a Committee constituted especially for this purpose and appointed a retired High Court Judge as its Chairperson. Within eight days of rejection of the representation, without any change in the circumstances, a second representation dated 5.4.2007 was placed before the Committee and she was given the relief claimed. In this manner, under pressure from Justice Sathasivam, the Government of Tamil Nadu breached the rule of law and overturned its earlier decision and decided to give away the said land to Ms. Palaniammal vide order No 397/LA3 (2)/07-4 dated 18.12.2007. This was done as a special case and the benefit was not even given to other persons who were similarly and better placed. When the matter went to the Madras High Court, the Court condemned the decision of the Government to provide undue benefit to the relative of Justice Sathasivam. However, the court extended the benefit to others similarly placed. It is further pointed out that Ms. Palaniammal, after getting the land from Govt. of Tamil Nadu, in turn transferred the said land to daughter-in-law of Justice Sathasivam. This shows the brazen manner in which Justice Sathasivam misused his judicial office to secure favours for the mother-in-law of his son, even at the cost of important developmental projects.A true and typed copy of the judgment Kovai Medical Centre Research & Educational Trust & Others vs. State of Tamil Nadu & Others Writ Petition No. 16417/1998 (reported in Manupatra as MANU/TN/2029/2010) is annexed herewith and marked as ANNEXURE P-1.

(from pages to )xiii. That on 26.04.2014,Honble Mr. Justice P. Sathasivam retired from Honble Supreme Court as Chief Justice.xiv. That on 03.09.2014, Justice P. Sathasivam was appointed as Governor of Kerela. It may be submitted that with this appointment, Justice Sathasivam became the first Chief Justice of India to be appointed to the post of a Governor of a State, which is lower in warrant of precedence to the CJI. Aside from this, Justice Sathasivam who was the fortieth Chief justice of India holding office from July 2013 to April 2014 is additionally the first non-political person to be appointed for a politician post by any government.xv. That according to the press reports (Deccan Herald, dated 26.3.2015) and other news articles available on the web are to be believed, unmindful of the above, the Central Government is not only considering but has already obtained consent of Justice P. Sathasivam for his appointment as Chairperson of the National Human Rights Commission without considering other eligible former Chief Justices of India including Justice R.M.Lodha, Justice Altamas Kabir and Justice S.H. Kapadia. Failure to obtaining consent of these former Chief Justices for consideration for appointment as NHRC Chairperson and obtaining consent of only Justice Sathasivam despite tainted background would render the selection process faulty and amenable to challenge. There is no due procedure of appointment and there is no empanelment or a search committee. It is humbly submitted that the process of selection has to be constitutional, non-arbitrary and in a manner that enables the selection of best person for the office. This Honble Court has repeatedly held in a large number of judgments that every selection must be after following a process consistent with the rule of law. The process must be non-arbitrary, transparent and designed to select the best candidate.A true and typed copy of the press report (Deccan Herald, dated 26.3.2015) is annexed herewith and marked as ANNEXURE P-2.(from pages to )xvi. That on 14.04.2015, the Petitioner herein has sent Objections on consideration of the name of Mr. Justice P. Sathasivam, Governor of Kerala as Chairperson of National Human Rights Commission to the Honble President and Honble Prime Minister of India through email as well as registered post.A True and typed copy of the Email dated 14.04.2015 sent by the Petitioner to the Honble President and Honble Prime Minister of India is annexed herewith and marked as ANNEXURE P-3. (from pages to )

A True and typed copy of the Letter dated 14.04.2015 sent by the Petitioner to the Honble President and Honble Prime Minister of India through registered post is annexed herewith and marked as ANNEXURE P-4.(from pages to )5. G R O U N D S

In the present Writ Petition following grounds are raised for kind consideration of this Honble Court:

A. Because the Statute creates an important office of the Chairperson, NHRC for which selection has to be made. A selection for such a high position ipso facto postulates a selection consistent with Article 14 of the Constitution that would mean a non-arbitrary selection process based on definite criteria, call for applications & nominations, followed by a transparent and objective selection.B. Because the process of selection has to be constitutional, non-arbitrary and in a manner that enables the selection of best person for the office. This Honble Court has repeatedly held in a large number of judgments that every selection must be after following a process consistent with the rule of law. The process must be non-arbitrary, transparent and designed to select the best candidate.C. Because The National Human Rights Commission is the supreme human rights watch body of the country. It has been constituted under Section 3(1) of the Protection of Human Rights Act, 1993 and is headed by a Chairperson who is required to be a former Chief Justice of the Supreme Court. The Chairperson of the Commission must be a person of unflinching integrity, who is competent to deal with cases without fear or favour, and can uphold the rights enshrined in the Constitution. He has to be a person with a reputation for independence, with no prior commitment, political leanings, loyalty or obligation.D. Because the Commission hears complaints of violation of human rights by the Government. Such complaints have to be adjudged with utmost impartiality. In order to zealously guard the independence of members of the Commission, the Act restricted membership of the Commission to judges and human rights experts. It did not provide for any representative of the Government, or any person holding any office under the Government being appointed as member of the Commission. The spirit of the Act is aimed at keeping away persons having loyalty to the Government or any political party that may manifest itself into favouritism or undue leverage to the executive. Also, to deter the Government and its officers from seeking judicial favours and offering, in return, post-retirement sinecures/employment as an incentive to the members of the Commission, Section 6(3) of the Protection of Human Rights Act, 1993 laid down that on ceasing to hold office, the Chairperson and Members of the Commission shall become ineligible for further employment under the Central or State Government. This was aimed at insulating the Commission from any influence that may be exerted by the Government.E. Because, if press reports (Deccan Herald, dated 26.3.2015) and other online article/ news reports are to be believed, unmindful of the above, the Central Government is not only considering but has already obtained consent of Justice P. Sathasivam for his appointment as Chairperson of the National Human Rights Commission without considering other eligible former Chief Justices of India including Justice R.M.Lodha, Justice Altamas Kabir and Justice S.H. Kapadia. Failure to obtaining consent of these former Chief Justices for consideration for appointment as NHRC Chairperson and obtaining consent of only Justice Sathasivam despite alleged tainted background would render the selection process faulty and amenable to challenge. The proper procedure as laid down in the Act for appointment of the Chairperson is not being followed and the undue preference is being given to one candidate. Justice Sathasivam took over as Governor of the State of Kerala only recently in September 5, 2014. His appointment as Governor had been widely criticized by eminent lawyers, jurists including former Chief Justices of India, academia and mediapersons of the country. Further, it is in knowledge of the Petitioner herein that there are various allegations that Justice Sathasivam had misused his judicial office to obtain a huge array of land from the Tamil Nadu Government for the mother of his daughter-in-law and also that Justice Sathasivam had secured Maruti car agency (Aadhi) for his son Mr. Srinivasan in Coimbatore by getting waived the requirement of security deposit of Rs. 5 Crores. The decision of Kovai Medical Centre Research & Educational Trust & Others vs. State of Tamil Nadu & Others Writ Petition No. 16417/1998 (reported in Manupatra as MANU/TN/2029/2010) may be noted here. Ms. K. Palaniammal is the mother-in-law of Mr. Srinivasan, son of Justice Sathasivam. She had acquired rights in land (Survey Nos. 801/1G, 801/1H and 801/2 (Part) in Kalapatti Village in Coimbatore District to the extent of 98 cents, which had already been acquired by the Government. Land, once acquired vests in the Government. Such land cannot be sold or purchased. Though others kept distance from such land, Ms. K. Palaniammal somehow saw manifold profit in the deal. Despite knowing of the duly notified acquisition, she invested in the said land. She, vide her letter dated 6.12.2004, then urged the Government of Tamil Nadu to re-convey the land to her. This request was rejected by the Government vide letter dated 27.3.2007. As held in the cases of Avadh Behari Yadav v. State of Bihar &. Ors., (1995) 6 SCC 31, Allahabad Development Authority v. Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu & Ors., (2000) 4 SCC 322, and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR 2005 SC 492, once land is acquired, even if it wants, the Government cannot divest itself of the land. So the rejection of her representation was inevitable and as per law. The law clearly lays down that anyone who deals with acquired land does so at his own peril and such a transfer is void (Pandit Leela Ram v. Union of India, AIR 1975 SC 2112, Sneh Prabha v. State of Uttar Pradesh, AIR 1996 SC 540, Union of India v. Shri Shiv Kumar Bhargava & Ors., JT (1995) 6 SC 274, U.P. Jal Nigam v. M/s. Kalra Properties Pvt. Ltd., AIR 1996 SC 1170). At that stage, Justice Sathasivam used his influence to prevail upon the Government of Tamil Nadu. The Government under his influence got a Committee constituted especially for this purpose and appointed a retired High Court Judge as its Chairperson. Within eight days of rejection of the representation, without any change in the circumstances, a second representation dated 5.4.2007 was placed before the Committee and she was given the relief claimed. In this manner, under pressure from Justice Sathasivam, the Government of Tamil Nadu breached the rule of law and overturned its earlier decision and decided to give away the said land to Ms. Palaniammal vide order No 397/LA3 (2)/07-4 dated 18.12.2007. This was done as a special case and the benefit was not even given to other persons who were similarly and better placed. When the matter went to the Madras High Court, the Court condemned the decision of the Government to provide undue benefit to the relative of Justice Sathasivam. However, the court extended the benefit to others similarly placed. It is further pointed out that Ms. Palaniammal, after getting the land from Govt. of Tamil Nadu, in turn transferred the said land to daughter-in-law of Justice Sathasivam. This shows the brazen manner in which Justice Sathasivam misused his judicial office to secure favours for the mother-in-law of his son, even at the cost of important developmental projects. It is humbly submitted that the Petitioner has come to know that the original documents which bear testimony to the misuse of office by Justice Sathasivam duly stand chronicled in the records of the Madras High Court, Government of Tamil Nadu and M/s Maruti Udyog. The records are accessible and their copy could be obtained by your good office for further enquiry on this behalf, either by the CBI or any other independent agency as you may deem fit.F. Because, the appointment of Justice Sathasivam will bring conflict of interest as Justice Sathasivam is now part of the executive arm, he is no longer eligible to be appointed Chairperson of National Human Rights Commission. It is submitted that one cannot associate with politics/politicians and still possess the purity of a judge, since the edifice of our justice delivery system is founded on the oft quoted principle that Not only must justice be done, it must also be seen to be done. On the shift from the position of Governor to Chairperson of the Commission, he will continue to be seen as a representative of the ruling political party. He will always owe a debt of gratitude to the Government for having appointed him Governor and will be under pressure to side with the Government or the ruling political establishment to redeem this debt. If there is loss of public confidence, the same will have a devastating effect on the efficacy of the institution. This Honble Court in the case of Supreme Court Advocates-on-Record Association & Ors. v. Union of India (1993) 4 SCC 441 has held as followingIf the selectee bears a particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. Though it is illogical to spin out a new principle that the keynote is not the judge but the judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest and that the necessity for maintaining independence of judiciary is to ensure a fair and effective administration of justice.G. Because the consent of Justice Sathasivam has been taken when he is still holding an office of Governor which is not only unconstitutional but also arbitrary use of power by the Govt. as well as illegal and unlawful act on the part of Justice Sathasivam. It is submitted that the consent could have only been given after cessation of his previous appointment. The Act of giving consent for an appointment is a condition precedent to appointment and once the said consent is given, it can be said that the same can be stated as initiation of appointment. It is submitted that Justice Sathasivam has been disqualified from being qualified as per the requirement of Section 4 of Act and he has become incapacitated after becoming as Governor of a State.H. Because in a writ petition filed by an NGO Common Cause challenging the appointment of the present incumbent Justice K.G. Balakrishnan, the Supreme Court called for a report of inquiry into each of the allegations leveled against Justice Balakrishnan. Further, Former Chief Justice of India, Justice Y K Sabharwal was not considered for the post of National Human Rights Commission chief because of "adverse media and other reports" about him.I. Because only on enquiry can one examine the correctness of the accusations and an appointment without inquiry is susceptible to challenge on the ground of being hasty and uninformed. Hence, the decision of whether to appoint a person to a key position can validly be taken only after concluding such enquiry and after following a procedure as mandated by the Constitution and the Act and according to the Judicial Principles which are pronounced in the judgements as mentioned above.J. Because as noted by this Honble Court in the P.J. Thomas case, "Transparency is the hallmark of selection procedure and people across should be allowed to apply for the post.K. Because an institution which defends the values and rights of the society must be manned by persons of integrity appointed by a transparent and fair mechanism.L. Because there should be a transparent selection procedure and guidelines for empanelment of the candidates. M. Because the appointment of the Chairperson, NHRC according to the law laid down in Namit Sharma Vs Union of India (2013) 1 SCC 745) and Centre for PIL Vs UOI, (2011) 4 SCC 1) and against the illegal and arbitrary consideration of sole candidate for the post of Chairman, NHRC without following the proper procedure.N. Because sole consideration by the Govt. of Mr. Justice P. Sathasivam, Governor of Kerala, for the post of Chairman, National Human Rights Commission without following the proper procedure and without considering the fact that the integrity of the esteemed Institution will be at stake if the said appointment is given effect to is illegal and arbitrary. There is no proper procedure for short listing the suitable candidates who although may small in number but a definite legal process has to be followed for appointment of the best suitable candidate. The process of selection has to be constitutional, non-arbitrary and in a manner that enables the selection of best person for the office. This Honble Court has repeatedly held in a large number of judgments that every selection must be after following a process consistent with the rule of law. The process must be non-arbitrary, transparent and designed to select the best candidate.O. Because the Union of India to frame a transparent selection procedure based on definite criteria as required under the Act, and by preparation of empanelment by constituting a search committee which will place on record the various applications as well as definite options of the Retired former Chief Justices of India who are below the age of 70 years after taking their respective consent as well as the complete information, material and comparative data of the empanelled persons before the Committee as contemplated under Section 4 of the Act which will recommend the most suitable person for appointment as the Chairperson, NHRC to the President of India. It may be noted here that due to lack of aforesaid guideline, the Chair of the Chairperson was left vacant from November 2006 to March 2007 and further June 2009 to June 2010.P. Because this Honble Court in Namit Sharma vs Union of India, (2013) 1 SCC 745) decided the case of Chief Information Commissioner and Information Commissioners appointed under the Right to Information Act 2005, as there was no procedure prescribed for shortlisting the candidates. The RTI Act only states that the appointment would be made by the President on the recommendation of the Selection Committee consisting of Prime Minister, one Cabinet Minister and Leader of Opposition. This Honble Court has directed that a short list would have to be prepared in a fair and transparent manner after calling for applications by an advertisement, and on the basis of rational criteria.Q. Because in this judgement it was observed as under:-

In furtherance to the recommendations of the High Powered Committee, appointments to the Central and State Information Commissions should be made by the competent authority. Empanelment by the DoPT and other competent authority has to be carried on the basis of a rational criteria, which should be duly reflected by recording of appropriate reasons. The advertisement issued by such agency should not be restricted to any particular class of persons stated under Section 12(5), but must cover persons from all fields. Complete information, material and comparative data of the empanelled persons should be made available to the High Powered Committee. Needless to mention that the High Powered Committee itself has to adopt a fair and transparent process for consideration of the empanelled persons for its final recommendation. This approach, is in no way innovative but is merely derivative of the mandate and procedure stated by this Court in the case of L. Chandra Kumar (supra) wherein the Court dealt with similar issues with regard to constitution of the Central Administrative Tribunal. All concerned are expected to keep in mind that the Institution is more important than an individual. Thus, all must do what is expected to be done in the interest of the institution and enhancing the public confidenceR. Because it was further held as under 10. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded. 11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.S. Because in Centre for PIL Vs UOI, (2011) 4 SCC 1 also known as the CVC appointment judgment, this Honble Court held that shortlisting of candidates must be done on the basis of rational criteria with reasons, and all persons empanelled would be of unimpeachable integrity. This Honble Court also directed that selection process must be fair and transparent. Though the CVC Act of 2003 was silent on the process of short-listing of candidates, detailed directions were given by this Honble Court so that meritocratic selection can be made that could sub serve the purpose of the statute.T. Because this Honble Court has observed as follows:-If a duty is cast under the proviso to Section 4(1) on the HPC to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.U. Because this Honble Court held as follows:-55. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that :(i) In our judgment we have held that there is no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of difference of opinion amongst the Members of the High Powered Committee. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent.

This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decision-making process.

(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.

(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.

(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

(v) The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.

(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee.

(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

P R A Y E R

In the premises aforesaid, it is most respectfully prayed that your Lordships may graciously be pleased to:

a) issue notice on the Respondents;b) issue a Writ in the nature of mandamus or other appropriate writ, order or direction, directing the Respondents for appointment of the Chairperson, NHRC according to the law laid down in Namit Sharma Vs Union of India (2013) 1 SCC 745) and Centre for PIL Vs UOI, (2011) 4 SCC 1)c) issue a Writ in the nature of mandamus or other appropriate writ, order or direction, directing the Respondents not to illegally and arbitrarily consider the sole candidature of Justice Sathasivam for the post of Chairman, NHRC without following the proper procedure. d) issue a Writ in the nature of mandamus or other appropriate writ, order or direction, directing the Respondents to frame a transparent selection procedure based on definite criteria and by preparation of empanelment of all the Retired former Chief Justices of India who are below the age of 70 years after taking their respective consent as well as the complete information, material and comparative data of the empanelled persons before the Committee as contemplated under Section 4 of the Act which will recommend the most suitable person for appointment as the Chairperson, NHRC to the President of India.e) issue a Writ in the nature of mandamus or other appropriate writ, order or direction, directing the Respondents to enquire about the allegations made in the present Writ Petition against Justice Sathasivam.f) pass such other and further order / orders as this Honble Court may deem fit and proper in the interest of Justice.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY:

(ADITYA SINGH)

ADVOCATE FOR THE PETITIONER

DRAWN ON: .04.2015FILED ON: .04.2015IN THE SUPREME COURT OF INDIA

WRIT ORIGINAL JURISDICTION

WRIT PETITION (C) NO. OF 2015

IN THE MATTER OF:-

Dr. Adish C. Aggarwala, Sr. Advocate.... Petitioner

Versus

Union of India

Respondent

AFFIDAVIT

I, Dr. Adish C. Aggarwala, Senior Advocate, S/o Late Mr. Harish Chandra, Advocate, aged about 59 years, R/o, DS-423/424, New Rajinder Nagar, New Delhi-110060, do hereby solemnly affirm and declare as under:-

1. That I am the Petitioner in the abovementioned matter, hence, I am well conversant with the facts and circumstances of the abovementioned matter and I am duly authorized to swear and file this affidavit.

2. That I have read and understood the contents of accompanying synopsis from pages to , Writ Petition from to and paras no. 1 to 5, along with the I.A.(s) and state that the contents therein are true and correct to the best of my knowledge and belief and same has been drafted by the counsel as per my instructions.

3. That no fact of it is false and nothing material has been concealed therefrom.

4. That the annexures are true copies of their respective originals.

DEPONENT

VERIFICATION

Verified at New Delhi, on this 17th of April, 2015 that the contents of para 1 and 4 of this affidavit are true and correct to best of my knowledge and belief. No fact of it is false and nothing material has been concealed therefrom.

DEPONENT

IN THE SUPREME COURT OF INDIA

WRIT ORIGINAL JURISDICTION

WRIT PETITION (C) NO. OF 2015

IN THE MATTER OF:-

Dr. Adish C. Aggarwala,... Petitioner

Versus

Union of India

Respondent

AFFIDAVIT

I, Dr. Adish C. Aggarwala, Senior Advocate, S/o Late Mr. Harish Chandra, Advocate, aged about 59 years, R/o DS-423/424, New Rajinder Nagar, New Delhi-110060, do hereby solemnly affirm and declare as under:-

1. That I am the Petitioner in the abovementioned matter, hence, I am well conversant with the facts and circumstances of the abovementioned matter and I am duly authorized to swear and file this affidavit.

2. That I have read and understood the contents of accompanying synopsis from pages to , Writ Petition from to and paras no. 1 to 5 and state that the contents therein are true and correct to the best of my knowledge and belief and same has been drafted by the counsel as per my instructions.

3. That no fact of it is false and nothing material has been concealed therefrom.

4. That the annexures are true copies of their respective originals.

DEPONENT

VERIFICATION

Verified at New Delhi, on this 17th of April, 2015 that the contents of para 1 and 4 of this affidavit are true and correct to best of my knowledge and belief. No fact of it is false and nothing material has been concealed therefrom.

DEPONENT