August-September 2009 
Year 16    No.143
Human Rights


Out of commission

The NHRC – a gradual erosion of rights and responsibilities

BY HENRI TIPHAGNE

w ‘The NHRC recommends five lakh rupees monetary relief in a case of death in custody of J&K police’

w ‘NHRC recommends five lakh rupees monetary relief in a case of death in firing by a police constable in UP’

w ‘Sixth NHRC officer honoured with President’s Police Medal’

w ‘NHRC recommends six lakh rupees monetary relief in a case of fake encounter in UP’

w ‘NHRC recommends three lakh rupees monetary relief in a case of fake encounter in Tamil Nadu’

Some recent headlines on the NHRC website.

w ‘Schemes for the welfare of women deserted by their overseas spouses’

w ‘Draft national integrated plan of action to prevent and combat human trafficking’

w ‘Revised scheme for the relief and rehabilitation of victims of rape’

Some recent headlines on the NCW website.

w ‘Child data’

w ‘Child policies’

w ‘Child laws and conventions’

w ‘Core tasks and responsibilities for the state commission’

w ‘NCPCR and UNICEF organised press dialogue with media to ‘End corporal punishment: The right to protection and dignity’’

Some recent headlines on the NCPCR website.

These headlines represent just one side of the coin – the side of national human rights institutions (NHRIs) in India. But any study of the performance of the National Human Rights Commission (NHRC) of India assumes great importance because the NHRC is one of the most ‘prestigious’ human rights institutions, being the premier human rights body in the world’s largest democracy. Indian democracy boasts the existence of the following human rights institutions at the national level:

Ø The National Human Rights Commission (NHRC) of India set up under the Protection of Human Rights Act 1993;

Ø The National Commission for Women (NCW) set up under the National Commission for Women Act 1990;

Ø The National Commission for Minorities (NCM) set up under the National Commission for Minorities Act 1992;

Ø The National Commission for Scheduled Castes (NCSC) established under Articles 341 and 342 of the Indian Constitution and formally bifurcated from the National Commission for Scheduled Castes and Scheduled Tribes in 2004;

Ø The National Commission for Scheduled Tribes (NCST) established under Articles 341 and 342 of the Indian Constitution;

Ø The National Commission for Protection of Child Rights (NCPCR) set up under the Commission for Protection of Child Rights Act 2005;

Ø The National Commission for Safai Karamcharis (NCSK) set up under the National Commission for Safai Karamcharis Act 1993;

Ø The Central Information Commission (CIC) set up under the Right to Information Act 2005; and

Ø The office of the Chief Commissioner for Persons with Disabilities (CCPD) created under the Persons with Disabilities Act 1995.

At the state level there are 18 State Human Rights Commissions, 34 State Commissions for Women, 15 State Minorities Commissions, 24 State Information Commissions, 12 state headquarter offices of the National Commission for Scheduled Castes, 35 State Commissioners for Persons with Disabilities, six state headquarter offices of the National Commission for Scheduled Tribes and three State Commissions for Protection of Child Rights.

Thus there are over 150 statutory human rights institutions at the national and state level in India. Since all these institutions are meant to collectively contribute to the promotion and protection of human rights and fundamental freedoms in India, the national, regional and global human rights community should, instead of concentrating solely on the NHRC, begin to focus on and monitor the performance of all these institutions, their capacity building and their representations to the UN and other international forums. It is also time for the NHRC and the Office of the High Commissioner for Human Rights in Geneva to ensure that cooperation and collaboration with these numerous other statutory bodies is institutionalised in the years to come. All rights bodies within the country as well as the UN human rights treaty monitoring bodies and special procedures mandate holders that deal with India should henceforth also engage with these institutions to assist in their work.

Another way to assess these organisations and their functioning is to hear what people at the grass roots and victims of violations who have approached them have to say about them. Let us consider just one of several such stories. On May 22, 2003 nine persons approached the State Human Rights Commission (SHRC) in Tamil Nadu with complaints (numbered SHRC 1371-1379/2003) against the police torture that they had been subjected to. The SHRC in Tamil Nadu then set itself in motion, initially deputing its own investigation wing to investigate the case for some months, after which the commission started to examine witnesses. This process took more than four years during which a total of 20 witnesses, including nine victims, six other witnesses and five medical professionals, were examined.

Then when it was finally time for the defendants (the policemen indicted in the case) to present evidence, they approached the victims directly and started ‘settlement talks’ with them. Hearing of this, members of the NGO that had helped the victims by providing them with pro bono legal assistance through the years, met the victims and urged them to try and be patient and not get swayed by the policemen and their promises. This was when they learnt that the ‘settlement’ amount under discussion was around 40 lakh rupees. The head of the NGO then filed a petition before the SHRC on June 24, 2009, stating these facts and specifically asking the SHRC to inquire into possible coercion being applied to effect an outside settlement. However, no action was taken.

The SHRC merely waited patiently for the victims’ new lawyer to file a fresh petition stating that the victims were withdrawing their original petition before the commission, which was by then six years old. The commission was only too ‘pleased to dismiss the petition’ that had been filed six years ago. Is this justice before the SHRC? Who is the guilty party in this case? The SHRC which delayed the matter pending before it for over six years and has now dismissed the case as settled outside the commission? Or the policemen who successfully coerced the victims and their families into accepting the ‘compensation’ amounts?

If one were to travel across the country from the NHRC to every state human rights commission or statutory commission, one would only come across more cases like the one described above. The speedy justice that these statutory institutions were intended to bring about remains a distant dream today, especially when one considers the huge backlog of pending cases before them. Recently, an NGO was delighted that its complaint before the NHRC, concerning an incident that took place on July 2, 2003, had been successfully disposed of when the commission awarded Rs five lakh as compensation to the family of a rickshaw-puller in Amritsar on August 21, 2009, more than six years after the event!

The Indian NHRC was accredited as a grade-A NHRI by the ICC (International Coordination Committee of National Institutions for the Promotion and Protection of Human Rights) Subcommittee on Accreditation some years ago. This grade is due for reassessment in the latter half of next year. Will the NHRC be able to maintain its grade-A status? This will be one of India’s major challenges in the international human rights arena if current practices in the re-accreditation process are anything to go by.

The Sri Lankan NHRC has recently been downgraded to grade-B status and for the past 18 months the Human Rights Commission of Malaysia (SUHAKAM) has been under review as it faces a possible downgrade as well. Certain ‘General Observations’ made by the ICC Subcommittee outline the subjects that will be considered during any such re-accreditation process. A few of these issues are dealt with below so as to comprehend the challenges that the NHRC of India will have to face:

A. The first issue to be considered during such a re-accreditation process is the ‘competence and responsibilities’ of NHRIs. This will be examined in specific contexts:

1. The mandate of the NHRI with specific functions to both protect and promote human rights;

2. The subcommittee interprets the function of encouraging ratification of or accession to international human rights instruments, set out in the Paris Principles (relating to the status and functioning of national institutions for the protection and promotion of human rights), as a key function of an NHRI and therefore encourages the entrenchment of this function in the enabling legislation of the NHRI;

3. It seeks to highlight the importance of NHRI engagement with the international human rights system, in particular, the United Nations Human Rights Council (UNHRC) and its mechanisms (special procedures mandate holders) and the UN human rights treaty bodies;

4. It expects NHRIs to closely cooperate and share information with statutory institutions also established for the promotion and protection of human rights, for example, at the state level or on thematic issues, as well as other organisations, such as NGOs, working in the field of human rights, and to demonstrate that this occurs in their application to the subcommittee;

5. It stipulates that the recommendations of an NHRI, contained in its annual, special or thematic human rights reports, should normally be discussed within a reasonable amount of time, not to exceed six months, by the relevant government ministries as well as the competent parliamentary committees.

B. Composition and guarantees of independence and pluralism: The ICC Subcommittee recognises the efficacy of diverse models in fulfilling the requirement of pluralism as set out in the Paris Principles. However, it emphasises the importance of NHRIs maintaining consistent relationships with civil society, which will be taken into consideration during assessment of accreditation applications.

1. Pluralism: The different ways in which pluralism may be achieved through the composition of an NHRI include:

a) Members of the NHRI to represent different segments of society, as referred to in the Paris Principles;

b) Through procedures for the appointment of a chairperson and members of the NHRI, for example, where diverse societal groups suggest or recommend candidates;

c) Through procedures enabling effective cooperation with diverse societal groups, for example, advisory committees, networks, consultations or public forums; and

d) Through a diverse staff representing the different social groups within society.

The ICC Subcommittee further emphasises that the principle of pluralism includes ensuring the meaningful participation of women in the national institution.

2. Selection and appointment of members: The subcommittee notes that the selection and appointment process for members of an NHRI is critically important in ensuring the institution’s pluralism and independence. In particular, it emphasises:

a) A transparent process;

b) Broad consultation throughout the selection and appointment process;

c) Advertising vacancies widely;

d) Maximising the number of potential candidates from a wide range of societal groups;

e) Selecting members to serve in their own individual capacity rather than on behalf of the organisations they represent.

3. Staffing by secondment: In order to guarantee the independence of an NHRI, the subcommittee notes that as a matter of good practice:

a) Senior level posts should not be filled with secondees;

b) The number of seconded personnel should not exceed 25 per cent and never be more than 50 per cent of the total workforce of the NHRI.

4. As a principle, NHRIs should be empowered to appoint their own staff.

The points listed above are some of the questions that the NHRC of India will have to face from the ICC Subcommittee next year. Does it have adequate responses to these queries?

Looking back on the 16 long years of its existence, the NHRC of India will have to explain the following anomalies when it appears before the ICC Subcommittee on Accreditation:

Ø At present there are no women members in the NHRC and as matters stand today, it will be at least another five years before a woman member can be appointed to the commission.1

Ø At present, and through most of its 16-year history, the NHRC has not had a civil society representative on its list of members. How then can it claim to have fulfilled the requirement of diversity and pluralism that the Paris Principles insist on?

Ø Why is it that the NHRC does not currently have a chairperson (despite the availability of eligible candidates for the post)? Why did a similar situation arise a few years ago when, in the absence of a chairperson, the commission had to work with an acting chairperson at the helm?

Ø Under current law, only a retired chief justice of India can be appointed chairperson of the NHRC. This means that the post could remain vacant for some, often extended, periods of time. Is it possible for the NHRC to have a full-time chairperson before the current chief justice of India retires?2

Ø How is it possible that a retired IPS and IFS officer of the Government of India suffices to serve in the position meant for ‘persons having knowledge of, or practical experience in, matters relating to human rights.’3

Ø How is it that the NHRC’s Core Group of NGOs met only once in 2008 and 2007 and has not yet met in 2009?4 Is this the consultation with civil society organisations that the NHRC envisages through similar core groups on public health, disability, legal issues, etc?

Ø How is it that despite the existence of an Asia Pacific Forum of National Human Rights Institutions (APF) reference as well as an Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on the abolition of the death penalty, the NHRC in India, in its 16 years of existence, has not taken a public position on the death penalty?

Ø How is it that although the NHRC under the Protection of Human Rights Act 1993 has the power to initiate suo motu investigations into cases of human rights violation, the number of suo motu investigations conducted is negligible?

Ø How is it that almost all of the NHRC’s special rapporteurs appointed so far have been retired IAS or IPS officers? Are there no other possible candidates, such as former functionaries of civil society organisations working in the field of human rights, who are considered fit to occupy such positions?5

Ø Why is it that the deemed members of the NHRC6 have not met for several years, since the passage of the Protection of Human Rights Act in 1993 or thereafter, since the act was amended in 2007 up to the present?

Ø Why is it that while the ICC Subcommittee under Article 39 of its General Observations encourages more than one national institution to seek accreditation from the ICC and further states that a state shall have one speaking right, one voting right and, if elected, one ICC Bureau member, no application from any of the NHRC’s deemed members has so far been made to the ICC Subcommittee?

Ø Why is it that the NHRC has not submitted any alternate reports to any of the special procedure holders of the UN throughout its 16-year history? Will mere participation in meetings of the ICC Bureau or the Asia Pacific Forum of NHRIs and attendance at the UNHRC meetings suffice?

Ø Why has the NHRC never written to the Government of India urging it to grant those special mandate holders who have not received any response to their applications permission to visit the country?

If the NHRC of India seeks to be relevant, the Government of India must take the Paris Principles seriously; they must not only be put into practice, they must be ingrained into day-to-day practice. The independence of the NHRC must be actualised as a tangible reality for victims of human rights violations who approach it. If this is not done, the day is not far off when protest actions against such statutory institutions will spread throughout the country. The role of civil society organisations in the monitoring of national human rights institutions has therefore to be a serious, urgent and path-breaking one in the years to come. Those who have served on any of India’s human rights commissions in the past – whether it is the NHRC or the NCW, the NCM or the NCSC – also have a duty to ensure that these institutions do not lose their dignity and relevance altogether.

(Henri Tiphagne is a lawyer and executive director of People’s Watch, a national human rights organisation.)

Notes

1 See the 2009 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia, p. 50.

2 Ibid, pp. 51-52.

3 See Section 3(d) of the Protection of Human Rights Act 1993.

4 See the 2009 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia, pp. 53-55.

5 Ibid, pp. 55-57.

6 Ibid, pp. 57-58.

 

 

 


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