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.