IN THE SUPREME COURT OF INDIA

UNDER ORDER XXXVIII RULE 7

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:

Dr. Adish C. Aggarwala
Senior 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

2. Committee (constituted under

Section 4 of Protection of Human
Rights Act, 1993)
Through Cabinet Secretary
Cabinet Secretariat,

Respondent No.1

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
DIRECTING

OR
THE

ANY

APPROPRIATE

RESPONDENT

TO

WRIT
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 Advocate

is

Chairman,

All

India

Bar

Association

Former Vice-Chairman, Bar Council of India,

Former Chairman, Bar Council of Delhi, Former
Vice Chairman Bar 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
community.

to

The

more

integrated

Association

has

lawyer
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

Kawamura,

President,

Justice;

Mr.

Akira

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

Commission

restricted
to

membership

judges

and

of

human

the
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, postretirement

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.

The National Human Rights Commission (NHRC)

of India is 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

the national

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 the Supreme 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 as ex officio members.
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

the National

Human

Rights

Commission (NHRC) of India is 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,

the national

1993

(TPHRA). The

human

rights

NHRC

is

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

thereof

conditions

and

make

of

the

inmates

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

governmental

the

efforts

organisations

of

nonand

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

MANU/TN/2029/2010)

is

pertinent

as
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)

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

representation,

days

of

without

rejection
any

change

of
in

the
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
xiii.

to

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

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
xvi.

to

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
Commission

of
to

National
the

Honble

Human

Rights

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 P3. (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

5.

GROUNDS

to

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

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

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 nonarbitrary, 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

Chairperson who is required to be a former Chief

Justice of the Supreme Court. The Chairperson
of

the

Commission

must

be

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, postretirement

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 motherin-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 following
If 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

necessity

interest
for

and

that

the

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

confidence

R. 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.

PRAYER
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

recommend

the

of

the

most

Act

suitable

which

will

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:

.04.2015

FILED ON:

.04.2015

IN 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, DS423/424, 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
Petition

from

to

to

, Writ

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 DS423/424, 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
Petition from

to

to

, Writ

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