TOPIC 7: AN EVALUATION OF WORKING OF 25 YEARS OF NHRC

TOPIC 7: AN EVALUATION OF WORKING OF 25 YEARS OF NHRC The context: This year marks the 25th anniversary of the National Human Rights Commission (NHRC). The Commission, which draws its mandate from the Protection of Human Rights (PHR) Act 1993, has been mired in controversies since its formation, although it has also emerged as watchdog for protection of human rights. The government also seeks to introduce amendments to the Act in Parliament s Winter Session this year. ABOUT THE NHRC The National Human Rights Commission (NHRC) of India is an autonomous public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993. It was given a statutory basis by the Protection of Human Rights Act, 1993. The NHRC is the national human rights institution, responsible for the protection and promotion of human rights, defined by the Act as "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants". It is a recommendatory quasi-judicial body having powers of a civil court to call for any documents and summon any public authority in a case of human rights violation. In a case of human rights violation, its recommendations are twofold: relief to the victim and punishment to the guilty. FUNCTIONING OF NHRC: The Commission's functioning is focused mainly around the six key areas and allied activities. These include Registration and disposal of complaints of human rights violations, Enquiry into the complaints, Research into the generic issues of human rights and study of related international treaties, covenants and domestic laws as well as the proposed bills, Organizing consultations with different stakeholders on human rights issues, Providing training and orientation in the field of human rights, Bringing out publications and dissemination of information through the news media and the various other alternative media platforms for building widespread awareness on the importance of promotion and protection of human rights, besides meeting the requirements related to the management of infrastructure, manpower and financial resources. THE POSITIVE ROLE PLAYED BY NHRC Focus on marginalised section of our society Against fake encounters EVALUATION OF NHRC WORKING Since its formation, the Commission has taken up some important projects and has, through its reviews, reports and recommendations, taken up the cause of prison inmates, patients at mental health asylums, bonded labourers, people with disabilities, women and children and the economically and socially marginalised sections of the country. The Commission has kept the consistent watch on incidences of encounter killings and deaths in custody. Since May 2010 the Commission has issued guidelines wherein every death in police action has to be reported to the NHRC within 48 hours of the incident CSE 2019 2

Vocal against the draconian laws The NHRC has also been vocal in its opinion against laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act, 2002 (POTA) which had scope for misuse and possible human rights violations. TADA was lapsed in 1995 and POTA repealed in 2004. Expanding reach From 169 complaints received in 1993-94, the NHRC went on to receive 68,713 complaints in 2002-2003. The number crossed one lakh in 2007-2008 and was 1,17,808 in 2015-16. NHRC has disposed of nearly 17 lakh cases of human rights violations in 25 years which includes payment of more than one billion rupees to the victims of human rights violations by various state agencies on the recommendations of the Commission Took actions for settlement of refugees Rohingya immigrants Raising awareness against misuse of AFSPA Conduct seminars and studies in various tribal pockets Soon after its creation, the NHRC in 1994 had taken up the issue of safety of the Chakma &Hajong community (Hindus and Buddhists refugees of the erstwhile East Pakistan) in Arunchal Pradesh and in a letter to the state government had stated that it was the obligation of that government to accord and to ensure that their human rights were not violated.the NHRC s intervention had gone a long way in protecting the rights of the Chakmas in the north-east The Commission also takes suo-motucognisance of human rights violations, based on media reports or other sources of information and investigates them. In August last year, for example, based on media reports, the NHRC issued a notice to the Union Ministry of Home Affairs over the planned deportation of about 40,000 Rohingya immigrants The NHRC has been of the view that the AFSPA should be repealed. However, the SC has held that the Act is constitutional BUT not absolutely immune. Now, the NHRC feels it is for the Centre to decide whether AFSPA should be continued The Commission also visits different states to organise open hearings to take cognisance of the problems of people there. The Commission has also gone beyond the physical violation of human rights to protect the economic, social and cultural rights of people. NHRC special rapporteurs have been assigned to look into the extreme poverty, starvation and malnutrition in Kalahandi, Bolangir and Koraput regions of Odisha. Another assignments was to study the malnutrition-related deaths of children in 15 tribal districts of Maharashtra and submit recommendations for improvement in their living conditions. Recent cases and criticism of NHRC role SC to consider whether NHRC is 'toothless tiger' (2016) NHRC has become a toothless tiger with the apex right s body complaining about difficulties in discharging its duties, including noncooperation from State governments and lack of staff. The court noted the NHRC s submission that it was helpless in taking any coercive measures since it has no power to take action against persons or authorities who do not follow the guidelines laid down by it nor does it have power to give directions or pass orders but can only make recommendations. CSE 2019 3

Handling of Muzaffarnagar riots The SC said it did not augur well for a democracy like India to have a National Human Rights Commission (NHRC) which was helpless to redress human rights violations. There was criticism to NHRC where the large scale displacement by communal violence in Muzaffarnagar riots in 2013 did not lead to any investigation or recommendations by the NHRC. Kairana Case In June, a Lok Sabha Member Hukum Singh released a list of 346 members of Hindu families that had allegedly fled Kairana town in Shamli district of western Uttar Pradesh due to persecution and pressure fearing atrocities at the hands of Muslim criminals and extortionists. The NHRC report released on September 21 observed that these allegations are serious and that several Hindu families have migrated because of the worsening law and order situation after victims of the Muzaffarnagar riots settled there. But the report was not based on proper research and analysis which was criticised in media of poor work by NHRC Chhattishgarh police gang-rape case In 2016 tribal women were gang-raped by police but NHRC had delayed response and didn t even take appropriate interventions like FIR, investigation, compensation under SC/ST LAW rather it was given under NHR LAW. LIMITATIONS OF NHRC Problems with the current Act Non-filling of vacancies As per the Act, the chairperson and members of the commission are appointed by the President, on the recommendations of a committee that includes the PM-- which puts doubts over the independence of NHRC. NHRC s recommendations do not percolate to the ground level as the NHRC does not have the backing of the Protection of Human Rights Act to penalise authorities which do not implement its orders.one example of this is the Gujarat riots of 2002. NHRC recommended there must be a CBI investigation. But the state government did not accept this and said that the state and state-appointed panels will carry out the investigation. The Act does not extend to Jammu and Kashmir and hence the commission has to keep its eyes closed to human rights violations there. The Act requires that three of the five members of a human rights commission must be former judges but does not specify whether these judges should have a proven record of human rights activism or expertise or qualifications in the area. Under the Act, human rights commissions cannot investigate an event if the complaint was made more than one year after the incident. Therefore, a large number of genuine grievances go unaddressed. The powers relating to violations of human rights by the armed forces have been restricted by AFSPA to simply seeking a report from the Government, (without being allowed to summons witnesses), and then issuing recommendations. Most human rights commissions are functioning with less than the prescribed Members. This limits the capacity of commissions to deal promptly with CSE 2019 4

Lack of awareness Non-availability of funds Too many complaints Bureaucratic style of functioning Depends upon will of the authorities No power against private parties complaints, especially as all are facing successive increases in the number of complaints The real challenge lies in the lack of awareness about the law among, particularly, the lower level of officials, who mostly deal with and have a direct interface with the public (said Justice HL Dattu) Scarcity of resources or rather, resources not being used for human rights related functions is another big problem. Large chunks of the budget of commissions go in office expenses, leaving disproportionately small amounts for other crucial areas such as research and rights awareness programmes. NHRC is deluged with too many complaints. Hence, in recent days, NHRC is finding it difficult to address the increasing number of complaints As human rights commissions primarily draw their staff from government departments either on deputation or reemployment after retirement the internal atmosphere is usually just like any other government office NHRC keep writing letters to the authorities concerned to implement recommendations. But it is the sweet will of the authorities whether or not to implement NHRC recommendations. The Act does not categorically empower the NHRC to act when human rights violations through private parties take place. The Protection of Human Rights (Amendment) Bill, 2018 The Protection of Human Rights (Amendment) Bill, 2018 was introduced in Lok Sabha in August, 2018 to amend the Protection of Human Rights Act, 1993. Composition of NHRC Chairperson of SHRC Term of office 1993 Act 2018 Bill The chairperson of the NHRC is a person who has been a Chief Justice of the Supreme Court. two persons having knowledge of human rights to be appointed as members of the NHRC. chairpersons of various commissions such as the National Commission for Scheduled Castes, National Commission for Scheduled Tribes, and National Commission for Women are members of the NHRC. the chairperson of a SHRC is a person who has been a Chief Justice of a High Court. the chairperson and members of the NHRC and SHRC will hold office for five years or till the age of seventy years, whichever is earlier. A person who has been Chief Justice of India, or a Judge of the Supreme Court will be the chairperson of the NHRC. three members to be appointed, of which at least one will be a woman. including the chairpersons of the National Commission for Backward Classes, the National Commission for the Protection of Child Rights, and the Chief Commissioner for Persons with Disabilities as members of the NHRC. provide that a person who has been Chief Justice or Judge of a High Court will be chairperson of a SHRC. reduces the term of office to three years or till the age of seventy years, whichever is earlier. The Bill also allows for the reappointment of chairpersons of the NHRC and SHRCs. CSE 2019 5

Union Territories Powers of Secretary- General The Act provides for a Secretary- General of the NHRC and a Secretary of a SHRC, who exercise powers as may be delegated to them. The Bill provides that the central government may confer on a SHRC human rights functions being discharged by Union Territories. Functions relating to human rights in the case of Delhi will be dealt with by the NHRC. The Bill amends this and allows the Secretary-General and Secretary to exercise all administrative and financial powers (except judicial functions), subject to the respective chairperson s control. Relevance: The amendment to the Protection of Human Rights Act, 1993 will make NHRC and state human rights commissions more compliant with the Paris Principle concerning its autonomy, independence, pluralism and wide-ranging functions in order to effectively protect and promote human rights. Critical evaluation of the Bill: The Amendment Bill intends to strengthen human rights institutions in this country. But it falls short of this objective by some distance. Is the reform, then, merely an attempt to save the country s reputation in international human rights fora? Yes. Why? Bill is just an attempt to get accreditation The selection procedures are still obscure Every five years, India s human rights agency, the NHRC, has to undergo accreditation by an agency affiliated to the UN Human Rights Council (UNHCR). The Commission s compliance to the Paris Principles is ascertained in this process. Thus, if India gets an A-status, the NHRC can play a pivotal role in the decision-making processes of the UNHRC and other important international bodies. In 2016, the accreditation agency deferred grading the NHRC because of the Commission s poor track-record especially, political interference in its working. But the agency was satisfied with the government s commitment to introduce necessary changes to the Commission and granted the NHRC A- status in 2017. The PHR (Amendment) Bill, 2018 is an outcome of this commitment. While the Bill seeks to diversify the Commission s composition, it falls short of bringing out substantial changes to the NHRC. The selection committee tasked with appointing the chairperson and the members to the Commission is dominated by the ruling party. It consists of the prime minister, home minister, Leaders of the Opposition in the Lok Sabha and Rajya Sabha, the Lok Sabha Speaker and the Deputy- Chairman of the Rajya Sabha. There is thus a need to diversify the selection committee. Very often, the government does not publicise vacancies in the Commission. The criteria to assess candidates is also not specified. As a result, appointments to the NHRC have been fraught with disputes. CSE 2019 6