March 2008 
Year 14    No.129
Cover Story


Not another toothless tiger!

A new commission without adequate jurisdiction or operational efficiency
will serve no useful purpose

By Teesta Setalvad

Among the serious contributions that the current UPA government has made in the area of furthering social justice is the presentation of the Sachar Committee report and through its recommendations, the establishment of an Equal Opportunities Commission. (The Right to Information Act and the Rural Employment Guarantee Scheme are two others.)

Quick to act on this recommendation, the central government’s Ministry of Minority Affairs has set up a committee to implement legislation to this effect, of which a draft bill is in circulation. Before we cheer and applaud these steps however, it may be wise to reflect on the serious contestations of basic paradigms that some of us may take for granted but which are, in fact, far from settled criteria as far as the Indian state and its institutions, the Indian polity and its people are concerned.

Equality and Discrimination. Both terms are hotly contested and are inherently liable to grind the proposed EOC into a non-starter of an idea. Coupled with India’s institutional track record (specifically, the functioning and role of the National Human Rights Commission, the National Commission for Minorities, the National Commission for Women and the National Commission for Scheduled Castes and Scheduled Tribes), it would be wise to argue that a much more open-minded and thorough debate is necessary before the UPA, in full throttle pre-election mode, offers yet another sop to the Indian electorate.

The caste-based inequities in Indian society ought not to be the subject of any disputation or debate whatsoever. But not only is their very existence vigorously contested, the Indian social, political and economic elite blithely argue that discrimination on the basis of caste is a thing of the past. The root of the flaming ‘red corridor’ (the Maoist-inspired violent struggle that has swept through large parts of the country) is the crass denial of development to seven per cent of our population, our own indigenous peoples, the Adivasis. Yet a significant section of Indians would, in all probability, not even acknowledge that Adivasis suffer any injustices at all. Taken together with the institutionalised and societal discrimination suffered by India’s religious minorities, this brings the number of Indians who suffer discrimination up to about 48 per cent of our population. This is no insignificant number.

A large section of Indians, victims of the carefully constructed agenda of the Hindu Right, would simply reject this stark reality. (Two sangh parivar-inspired ‘research institutes’ have already challenged the figures of Muslim population growth as presented by the Sachar Committee.)

Foremost in the sphere of discrimination is, however, the gender dimension – women – who constitute 50 per cent of the overall population. Within this segment, the Dalit woman, the Adivasi woman, the Muslim woman, the Christian woman, is thrice discriminated against. Even as India goes global and attempts to shine, girl children and female foetuses are killed with impunity, especially in the richer and more privileged sections of our society.

The first major challenge that the proposed EOC faces is to include and balance these varied discriminations, both legislatively and in practice, and equally or more, to counter casteist, communal and chauvinist protagonists who wish to neutralise such a worthy effort even before it gets off the ground.

That being said, it is our inability to nurture national institutes of discipline, efficacy, accountability and repute that causes this writer the greatest concern. To illustrate this point, I present the track record of one of our premier national institutions, vital and critical for the promotion of human rights observance and practice in the country.

The National Human Rights Commission. In a press release issued on October 12, 2007 the NHRC observes that it has been "trying its best to give a positive meaning and content to the objectives set out in the PHR (Protection of Human Rights) Act for better protection of human rights. The commission has worked effectively and vigorously all these years to create awareness and sensitise public authorities for promotion and protection of human rights; An important intervention of the commission was the recommendation of interim relief of two crore eighty lakh rupees to the victims of atrocities by the Joint Task Force of Karnataka and Tamil Nadu while the forest brigand Veerappan was being chased. The commission constituted a committee on missing children after the Nithari killings and submitted a report on July 2, 2007, and the commission has been monitoring the Supreme Court guidelines on sexual harassment at the workplace called the Vishakha guidelines."

Despite these claims, an independent appraisal of the NHRC reveals a poor track record. The very existence of the NHRC and the significant role the commission has played at certain critical junctures in our recent history cannot, of course, be forgotten. This includes, most notably, its role during the Gujarat genocide of 2002, the commission’s suo motu visit to the state and its report of May-July 2002 on the Gujarat carnage. However, statutory limitations and worse, operational malfunction, have ensured that the NHRC has failed to live up to the enormous expectations that people had of the institution when it was first formed.

Some of the reasons why the NHRC suffers from a serious credibility crisis are:

Statutory limitations: (a) Absence of plurality: One of the major areas of concern is the absence of plurality in the composition of the NHRC as required under international instruments such as the Paris Principles on National Institutions for the Promotion and Protection of Human Rights. Although the chairpersons of the National Commission for Scheduled Castes and Scheduled Tribes, the National Commission for Women and the National Commission for Minorities are included as statutory members of the NHRC, these members are so busy with their own commissions that they hardly ever attend the proceedings or participate in the deliberations of the NHRC.

Consequently, there is no effective representation within the NHRC from among the scheduled castes, scheduled tribes, women or religious minorities. So much for plurality! The NHRC’s website, while listing the commission’s various constituents, does not even include the National Commission for Scheduled Castes and Scheduled Tribes!

(b) Lack of jurisdiction over the armed forces: According to the 2003-2004 annual report of the Ministry of Home Affairs, India faces intensive internal armed conflicts in Assam, Arunachal Pradesh, Jammu and Kashmir, Meghalaya, Manipur, Mizoram, Nagaland and Tripura. In addition, the Indian states of Andhra Pradesh, Bihar, Chhattisgarh, Orissa, West Bengal, Madhya Pradesh, Maharashtra and parts of Uttar Pradesh are afflicted by a left-wing Naxalite movement against inequity and social injustices. In most of these locations the armed forces have been deployed to combat the non-state violence. Yet, under Section 19 of the Protection of Human Rights Act 1993, the NHRC has no jurisdiction over the armed forces of the Government of India who are responsible for gross and widespread human rights violations in armed conflict situations.

(c) Prison visits: The need to provide prior intimation to the authorities before the NHRC can visit a jail or any other institution under government control – where persons are detained or lodged for purposes of treatment, reformation or protection – in order to study the living conditions of the inmates, defeats the very purpose of prison reforms.

(d) Procedures for appointment: There is complete absence of transparency in appointments to the NHRC and any critiques are ignored. For example, the appointment of PC Sharma, former director of the Central Bureau of Investigation (CBI), has been challenged before the Supreme Court. There was nothing wrong, as the Supreme Court observed, with the procedures employed in Sharma’s appointment as a member of the commission. But what of the conflict of interest? The critical issue is the conflict of interest that arises when a police officer is appointed as member of the NHRC, given that the majority of allegations of human rights violations are against the police. The issue of conflict of interest is not restricted to Sharma alone but also extends, in fact, to the staff of the NHRC who serve on deputation from various union ministries.

While the Congress party, sitting then on opposition benches, had described Sharma’s appointment as "highly regrettable", the Congress-led UPA government, in its affidavit before the Supreme Court, supported Sharma’s appointment! In July 2005 the People’s Union for Civil Liberties, which had challenged Sharma’s appointment to the NHRC in the Supreme Court, then sought a review of the court order approving his selection. The question now before the apex court is whether the Supreme Court can regulate conflict of interest when those who are supposed to nominate members to the NHRC do not do their job.

The NHRC has undoubtedly played a critical role, and continues to play a critical role, for the protection and promotion of human rights in India. But the commission’s often lofty attitude and its bureaucratic methods of functioning amount, all told, to operational inefficiency.

It is not the statutory limitations imposed on it that have rendered India’s NHRC largely ineffective. It is the operational inefficiencies within the institution that are the true culprits: The non-recognition and non-registration of complaints; denial of the right to information on complaints; violation of a cardinal principle of jurisprudence by not providing the state’s response to complaints; the closure of cases on frivolous grounds; the disclosure of complainants’ identities; flawed investigation processes; and the lack of follow-up mechanisms for prosecution.

Renowned human rights activist Suhas Chakma has, on behalf of the Asian Centre for Human Rights (ACHR), filed several cases against NHRC procedures in the Delhi high court. A major flaw in the commission’s functioning is the non-recognition and non-registration of complaints. In its last annual report, of 2003-2004, the NHRC states that it has taken up 3,75,758 cases of human rights violations during the first 10 years of its existence. There is no record of, or transparency about, complaints that were not registered at all. The ACHR has made an exhaustive list of the complaints it has submitted to the NHRC that have received no acknowledgement and can therefore be presumed to have been rejected. A list of these cases is available on the ACHR website. These include, in the main, complaints of custodial deaths and torture as well as extrajudicial killings. Is it possible that the presence of the police establishment within the NHRC had some bearing on this?

This writer, on behalf of Citizens for Justice and Peace, informed the NHRC of the gang rape of several Muslim women in Shrawasti in eastern Uttar Pradesh last July. Following up on the complaint, the NHRC sent a team to Shrawasti but despite repeated requests we have not been given a copy of the commission’s report on the incident. This has stymied the process of justice and compensation. When we approached the high court at Lucknow to get the offences registered, the Uttar Pradesh director general of police V. Singh assured the court that a first information report would be lodged but so far nothing of the sort has been done.

It is a fundamental requirement in law that both the prosecution and the defence must be provided with copies of the other’s response to a complaint. But in several cases, in the interests of ‘protecting the investigation team’, the complainant is not allowed to study the investigation report. As a result, while the complainant’s identity goes unprotected, the accused and investigating officers are sheltered.

The absence of any follow-up to its own orders or directives plagues, alas, not only the NHRC but also other institutions and even judicial pronouncements in this country. The non-compliance of its orders has reduced some NHRC reports to a mere farce. In its 2003-2004 report, for example, the NHRC asked for details and information on encounter deaths from every state in the union. Only nine states deigned to reply, the rest deciding to treat the commission and its request with contemptuous disregard.

In November 2007, following the news magazine Tehelka’s "Operation Kalank" (recording confessions from powerful accused admitting their involvement in brutal incidents of the Gujarat genocide), the NHRC promptly issued a suo motu notice to the Gujarat government, even stating that it would order the CBI to investigate the relevant video footage. The Gujarat government responded by questioning the NHRC’s jurisdiction over it by raising the centre-state issue as also the commission’s right to call in the CBI ‘without the state government’s permission’. (The NHRC has country-wide jurisdiction and is, in fact, empowered to take the assistance of both state and central investigating agencies.)

The statutory mandate of the NHRC under Section 12 (f) of the Protection of Human Rights Act is to "study treaties and other international instruments on human rights and make recommendations for their effective implementation". One obvious opportunity to uphold this mandate would have been in the wake of the Gujarat genocide, for the NHRC to have been the forum to compel the government to introduce a law against genocide. Instead, what we have today is the possibility of a pale and rather pathetic law against communal violence that creates more problems than it attempts to solve.

The monitoring of complaints and transparency in functioning are key issues that seem to dog even those of our institutions that are meant to be society’s watchdogs. In a country as large as ours, beleaguered as it is with myriad problems, the institutional monitoring of, say, an equality index, or a human rights index, or a diversity index, is only possible if every police station, every government institution, every educational institution and every court has a non-discrimination officer who receives complaints, collates them, makes them public and forwards them to the NHRC or any other similar institution. If such a network of officers is answerable directly to these organisations and is also watched through the lens of public scrutiny, our institutions, all of them, would be transformed into healthier, robust, more democratic ones.

Until such a mechanism is in place, and as we rejoice or reflect on the forthcoming EOC, it would be wise to study more carefully the track record of key institutions that are already in existence. Else, just as the NHRC has been unable, despite its statutory requirements, to become the nation’s premier human rights monitoring agency, the EOC will also be reduced to a pale shadow of itself.

 


[ Subscribe | Contact Us | Archives | Khoj | Aman ]
[ Letter to editor  ]

Copyrights © 2002, Sabrang Communications & Publishing Pvt. Ltd.