New Delhi: The government of Prime Minister Narendra Modi helped two chairpersons of powerful statutory bodies get a second term by amending appointment rules—using a grammatical loophole relating to a conjunction—just before their scheduled farewell last year.
The union ministry of women and child development amended (here, here) the rules for Rekha Sharma of the National Commission for Women and Priyank Kanoongo of the National Commission for Protection of Child Rights just as they were nearing the end of their terms in August and October 2021.
To push through the amendment favouring Kanoongo, the ministry used the solicitor general of India’s off-the-record opinion on how the conjunction “or” in the legal text on appointments could be used favourably, according to previously unpublished documents reviewed by The Reporters’ Collective.
Sharma and Kanoongo head commissions that are powerful enough to initiate inquiries, summon any person from any part of the country and examine them on oath, recommend to the government for action or approach high courts or the Supreme Court for further orders.
In the past, the Supreme Court has even allowed the child rights commission to intervene and produce its own findings while examining appeals by the Tamil Nadu government against a Central Bureau of Investigation (CBI) probe into the suicide of a minor girl.
Unlike central agencies, such as the CBI, which cannot probe a crime without the state government’s consent, except when asked by courts, the commissions don’t need permission from state governments to conduct investigations—an attribute that is valuable to organisations allied with the union government, even though they are not supposed to be.
With these powers, the two have been criticised (here, here) for going after dissenters and critics of the government. Kanoongo had shot off notices that targeted activists, dissenters and even Netflix for a show the child rights commission believed could “pollute young minds”.
The commission’s latest act that appeared closely allied with Modi’s government was a notice on 11 July 2022 to police, asking them to file a first information report against Shiv Sena leader Aditya Thackeray, accusing him of “using” children in a protest to stop a controversial car shed in Mumbai’s lush Aarey Milk Colony.
The child rights commission had filed a complaint against Alt News co-founder Mohammed Zubair and raided children's homes run by an NGO associated with activist and former Indian Administrative Service officer Harsh Mander during Kanoongo’s first term.
Sharma made headlines in 2020 for holding discussions with Maharashtra governor Bhagat Singh Koshyari on “rising love jihad cases”, a conspiracy theory floated by right-wing parties that Muslims were marrying Hindu women to convert them to Islam.
Infringing On Independence
The chairpersons enjoy the perks of a cabinet secretary, the highest-ranked bureaucrat. Though appointment rules of both the commissions explicitly say that no member or chairperson can serve more than two terms, the ministry amended this to allow Sharma, who had just two more days in her tenure, and Kanoongo, with a little over a month, to be reappointed.
"The intent behind limiting the number of tenures, theoretically, is to maintain the independence of the commissions," a former chief secretary of a state, who preferred to remain anonymous, told The Collective.
"Since the government has the authority to make these appointments and also to extend them, the person holding the office may be tempted to toe the government line to get an extension,” said the former chief secretary. “Limiting the number of tenures ensures that such a person's decisions or recommendations are not coloured."
"In the current scenario, independence of commissions is not really evident,” he said. “I won't say they're toeing the government line but they're working harmoniously with it.”
The National Commission for Women Act, 1990, under which the National Commission for Women is established and which governs the appointment rules to the commission is silent on the number of terms a member or chairperson can serve. However, the rules framed under the Act are clearly term-sensitive—allowing only two terms irrespective of the positions held.
The difference between rules and Act is that the Act is the primary legislation that shows the intention and the laws flow out of it. Rules flesh out details to enforce the Act. But what’s important is rules can’t go beyond the power conferred by the Act.
The Commission for Protection of Child Rights Act, 2005, which established the National Commission for Protection of Child Rights, as well the rules under the Act restrict all members and the chairperson to a maximum of two terms.
But whether Kanoongo, who served one term as a member from November 2015 to October 2018 and another as chairperson between October 2018 and October 2021, could be reappointed as chairman narrowed down to interpreting the law.
Official records received through right-to-information queries by transparency activist Anjali Bhardwaj reveal the ministry faced difficulties in getting a legal nod in allowing Kanoongo to continue though the ministry had successfully changed the women’s commission’s appointment rules.
The Ministry wanted to amend the section that restricted every member or chairman to a maximum of two terms. The rules of both the commissions said, “Provided that a person who has held an office of Chairperson or Member for two terms, in any capacity shall not be eligible for renomination as Chairperson or, as the case may be, as Member.”
The changes the ministry proposed were: “Provided that a person who has held office for two terms as member or two terms as chairperson, shall not be eligible for re-nomination as member or chairperson, as the case may be”.
“Provided further that a person who has held office (1) For two terms as member, or (2) one term as a member and one as a chairperson, shall be eligible for one more term as chairperson.”
But the legal nod from the law ministry wasn’t coming through. The Women and Child Development Ministry then relied on the legal opinion from solicitor general Tushar Mehta to push the amendments through though it was not related to amendments to rules but an interpretation of existing ones.
Mehta’s opinion was originally sought by the Kanoongo-led Commission. It had asked him about the legal validity of Odisha government’s decision to reappoint the chairperson to its state child rights commission. Legally, the national commission has no jurisdiction over appointments made to the state commissions but went out of its way to consult Mehta.
The Odisha Commission’s head, Sandhyabati Pradhan, just like Kanoongo, had served one term as a member and another as chairperson.
According to the Act, “no Chairperson or Member shall hold the office for more than two terms”. Tushar Mehta, responding to the national commission’s query, said the case for reappointing an incumbent chairman boils down to how one interprets the word ‘or’ in the phrase ‘Member or Chairperson’ in the Act and the rules.
The Disjunctive And/Or Conjunctive Possibilities
Now comes the Strunk-and-White stuff.
Mehta observed that the ‘or’ in the rules and the Act could be used in a ‘disjunctive’ or a ‘conjunctive’ sense. “The word 'conjunctive' means - 'relating to or forming a connection or combination of things’,” he said. “On the other hand, the word disjunctive means 'expression of a choice between two mutually exclusive possibilities.”
Simply put, he was referring to the intent behind usage of ‘or’: is it a literal ‘or’ or an ‘and/or’?
“Thus, if the legislative intent is to use the word "or" in the Statute and in the Rule in a disjunctive sense, then it means that Statute and the Rule provide that before acquiring disqualification a person has to, respectively, hold office for a consecutive period of two terms either as a Chairman or as a Member but will not include a situation where a person holds one term as a Member and one term as a Chairman,” wrote Mehta. “In the latter situation if the word “or" is read disjunctively then no disqualification will be attracted.”
Finally, the solicitor general said it’s “only the Court which has the power to read the word "or" as “and" and vice versa.”
“Thus, in my opinion applying the aforesaid doctrine of interpretation no disqualification is attracted on re-appointment of an incumbent to the post of chairman if he/she had previously held one term as a member and one as a chairman,” he said.
“Disqualification would be attracted only if such an incumbent successively holds two terms as a Member or as a Chairman.”
Mehta in his legal opinion said that the re-appointment of Odisha’s state commission chairperson was good to go as per existing rules and Acts.
But Mehta had forbidden the child rights commission from using his legal opinion before any public authority. Mehta’s letter, dated 28 May 2021, carried a disclaimer saying: “Not to be produced before any public authority or court of law”.
The Law Ministry’s Legislative Department, on 17 August 2021, did not approve the Women and Child Development Ministry’s proposed changes to the child rights commission’s rules and instead called for a review by the Department of Legal Affairs, another of the three arms of the Law ministry.
It said, referring to the Commission for Protection of Child Rights Act, “the Act restricts the holding of office of the chairperson or member for not more than two terms, irrespective of the person holding such office in any capacity whether member or chairperson.”
It found that the tweaks could allow a person to serve three terms if they had served two terms as a member or one term as a chairperson and another as a member. This, the department said, is contrary to the commission’s Act which governs the rules. It noted that these changes would require an amendment to the Act.
The Women and Child Development Ministry soon resubmitted its proposal along with Mehta’s legal opinion. On 23 August 2021, the Legislative Department in its second response said again it would be appropriate to seek the opinion of the Legal Affairs Department and did not give its nod to the amendments.
It noted, “From the perusal of the legal opinion of Ld Sg (referring to Tushar Mehta), it appears that he has not suggested any amendment in the said rules”.
The next day, the Legal Affairs Department gave its opinion. “The issue is whether the proposed amendment in the rule would be in conflict of Section 5 of the Commission for Protection of Child Rights Act, 2005, or not?”
The Legal Affairs Department relied on Mehta’s opinion to answer that query. “The amendment proposed by the Ministry of WCD for inserting two provisos in the Rule 6 does not appear to be contrary to Section 5 of the Act of 2005, as opined by Ld Solicitor General,” it said.
On 26 August 2021, the Legislative Department, acting on the advice of the Legal Affairs Department, said the amendments were now ‘formally in order’.
The ministry notified the new changes on 3 September 2021. A month later, Kanoongo was reappointed chairman.
(Shreegireesh Jalihal is a member of The Reporters’ Collective, a journalism collaborative that publishes in multiple languages and media.)