Frontline
December  1999
Special Millennium Issue

‘It is the experience of several human rights groups that NHRC has shown total indifference to their struggles’

Justice Hosbet Suresh (Retd.)

As we take stock of one century and enter into another, we face a two–fold challenge, as U.N. Secretary General Kofi Annan reminds us: to make the next century, the century of human rights and to create a world–wide culture of conflict prevention.

To address the first part of the challenge we don’t need any new laws. We have plenty of them, including the Protection of Human Rights Act, 1993. We only need to put into practice the international norms and standards that exist.

It is under the Protection of Human Rights Act that we established the National Human Rights Commission for the purpose of protection and prevention of violation of human rights. We defined human rights as inclusive of all those rights mentioned in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. In a way they have become statutory rights to be recognised and enforceable like any other statutes.

However, what we are witnessing today is a perceptible increase in the violation of human rights, during the last decade. The National Human Rights Commission has not been able to prevent very many blatant violations of human rights which are taking place, practically in every state.

When "encounter" killings were taking place in Mumbai, almost every day, despite several appeals, the Commission did not bother to act or intervene and inquire into these violations. When in Dangs District, Gujarat, the local tribals and Christians were attacked and the schools and churches were damaged and burnt, NHRC did nothing even though frantic appeals were sent to the Commission. NHRC could not prevent the killing of Graham Staines, nor did it find any necessity to confront Justice Wadhwa Commission’s report with its own findings and revelations. Dara Singh continues to indulge in more killings and NHRC seems to be oblivious to the situation. On July 11, 1997, when Inspector Kadam shot 11 Dalit persons in Ramabai Colony, at Ghatkopar, appeals were made to NHRC but with no response. Again, on July 23, 1999, 17 persons were drowned and killed by the police at Tirunelveli, Tamil Nadu. The NHRC was requested to inquire but it did not respond. Many such instances can be cited showing non–action on the part of the NHRC.

In all instances of major human rights violations, NHRC did not come forward to hold any inquiry. The excuse, perhaps, is that it cannot inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force (S.36). That is how, very often, the government announces a Commission of Inquiry under the Commissions of Inquiry Act, 1952, mainly to silence public condemnation and also to pre–empt a possible action by an agency like the NHRC. The result is, as it has happened in all such cases, the victims of violations of human rights get neither justice nor any relief.

The NHRC has the power to inquire suo motu into any complaint of violation of human rights. It need not wait for a petition or any request from any member of the public. And it can seize the initiative before the government announces any other inquiry. For example, when killings took place at Ramabai Colony, and frantic appeals were sent, NHRC could have taken the initiative to inquire into the atrocity. The government took nearly a month to appoint the Gundewar Committee. So also, recently, on November 17, when riots broke out in Chennai Central Prison resulting in death of 10 persons, and injuries to over 90 persons, a message was sent to the NHRC to inquire into the incident. The NHRC did send Kartikeyan, a member, to Chennai who surprisingly, went back after a day, foregoing the initiative and in the meanwhile enabling the state government to announce a judicial inquiry. If only the NHRC had announced that it was looking into the matter, the government would have had to think twice before it could decide on any parallel inquiry.

So far, the NHRC has mainly concerned itself with excessive police actions and custodial deaths. That is how, generally, human rights issues are equated with physical oppression, encounter deaths, custodial deaths, torture and other acts of State terrorism. What about other human rights violations which are worse than the acts of State terrorism, such as poverty, illiteracy, social alienation, untouchability, caste divisions etc. How would the NHRC consider these violations — as mere social problems or as human rights violations?

The right to life and liberty has been recognised as a Fundamental Right (Art.21) under the Constitution. The Supreme Court has in several judgements pronounced that the right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head. Art.25 of the Universal Declaration of Human Rights and Art.11 of the International Covenant on Economic, Social and Cultural Rights say the same:

"The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and house, and to the continuous improvement of living conditions." (Art.11 ICESCR). Now, by definition, this has become a part of the Act. Surely no parallel inquiry under any Statute is being held by any government. But the NHRC has not said a word about these violations. 44 per cent of the population of this country lives below the poverty-line, in abject misery, with no adequate food, clothing or shelter. Every day people are being forcibly removed from their homes, making them refugees in their own country.

What about attacks on minorities? In Dangs District, attack on Christians was underplayed by raising a bogey of the need to debate on conversion. Art.25 of our Constitution, Art.18 of UDH and Art.18 of ICCPR, all recognise "the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." The NHRC has not said a word about these violations of human rights though they are all by incorporation, part of the Act. The NHRC should have pointed out to the government that the debate on conversions is a meaningless exercise.

Recently, very many human rights activists have been carrying on a campaign against the death penalty. Art.6 of ICCPR refers to abolition of death penalty in terms that strongly suggest that abolition is desirable. The Second Optional Protocol to the ICCPR says that all measures of abolition of the death penalty should be considered "as progress in the enjoyment of the right to life." It urges upon all State Parties to "take all necessary measures to abolish the death penalty within (its) jurisdiction."

In April 1999, the U.N. Commission on Human Rights adopted a resolution calling on all states that maintain the punishment "to establish a moratorium on executions, with a view to completely abolishing the death penalty." The question is what is the attitude of the NHRC? As a human rights body would it support death penalty?

The NHRC is a statutory body. That does not mean that it is a part of the state machinery. It is not bound by state policies and programmes. Its functions include studying "treaties and other international instruments on human rights and make recommendations for their effective implementation." It has also the duty to "encourage the efforts of non–governmental organisations and institutions working in the field of human rights."

There is hardly any instance where the NHRC has even recognised the efforts of non–governmental organisations. It is the experience of several human rights groups that NHRC has shown total indifference to their struggles in the human rights field. It is therefore, necessary that NHRC, in order to gain acceptance and recognition by the people in general and human rights activists in particular, should show that it is independent from the state in all respects.

This takes me to the other part of Kofi Annan’s statement: to create a world–wide culture of conflict prevention. It is here that the NHRC has a special function: "spread human rights literacy amongst various sections of society."

It is sometimes said that these International Covenants are all based on Western values and are not suited to our traditions and cultures. If human rights in essence means the supreme, inherent and inalienable right to life and liberty, these cultural deviations should not be any impediment towards full realisation of human rights.

What is required is elimination of those features in our cultures which are contrary to the universal principle of human rights. For example, ‘Sati’ is still considered by a certain section of our society as a part of our culture and not as a violation of right to life. One would have expected an organisation like the NHRC to come out openly and educate people on such issues.

Our women are still discriminated against and they suffer immensely. There are large number of dowry deaths and burning of women all over the country. We are the victims of caste divisions and considerations followed by untouchability. All these are not considered as an affront to human dignity. Ethnic conflicts, rise in fundamentalism and religious and cultural oppressions do not mean anything to many people in terms of human rights violations. Unfortunately, institutions like the NHRC have miserably failed to take the initiative on all these issues. It looks as if it is a systematic deficiency, the commitment being not to the cause of human rights but to the posts they have created.

Despite these institutional failures, there has been a steady increase in the human rights movement in the country. There are a large number of organisations and groups, though not recognised by the government agencies including the NHRC, who selflessly devote their time and energy in condemning human rights violations, and at the same time spreading awareness of the values of human rights. There are many volunteers who are ready to champion and defend human rights, knowing full well that it is a struggle and a tough long–term task.

To quote the words of Mary Robinson, U.N. Commission for Human Rights: "The message of human rights is a message of hope, a message that things can change that the individuals and the U.N. can have an impact."


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