BY HEIGRUJAM PREMKUMAR
The National Human Rights Commission (NHRC) was established on October 12, 1993 through an Act of Parliament titled “The Protection of Human Rights Act, 1993”. From the Government’s side, the Commission is an embodiment of India’s concern for the protection of human rights.
In a note circulated by the Ministry of Home Affairs, three specific objectives of the establishment of the NHRC were mentioned. These are
- to strengthen the institutional arrangements through which human rights issues could be addressed in their entirety in a more focused manner;
- to look into allegations of excesses independently of the government, in a manner that would underline the government’s commitment to protect human rights; and
- to complement and strengthen the efforts that have already been made in the direction.1
The Act itself states its objectives as to “provide for the constitution of the National and State Human Rights Commissions and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.”2
However, the credibility of the NHRC cannot be defined simply in terms of the Commission’s own stated goals- doing that would undermine the vast roles the NHRC is supposed to play. Thus, the credibility of the NHRC should be weighed in the Commission’s effectiveness, efficiency and Indian people’s confidence in Commission’s functioning and capacity. This article is an attempt to critically assess how far the NHRC has succeeded in ensuring and protecting the rights of the Indian people and how far the Commission can safeguard these rights. Along with this is the attempt to assess the limitations in the statute itself in empowering the Commission and how it limits its performance.
The Performance and the Credibility of NHRC
Of course, the Commission has fulfilled though partially what the Act promised to constitute National and State Human Rights Commissions and Human Rights Courts. But the other promise, ‘for better protection of human rights and for matters connected therewith and incidental thereto’, needs further re-examination and re-assessment.
The National Human Rights Commission undoubtedly has some laudable achievements to its credit. The Commission has taken up many important cases for the better protection and promotion of human rights in the country. Some important cases the Commission took up include the following:
- Custodial Deaths
- Police Excesses (Torture, Illegal Detention/Unlawful Arrest, False Implication etc.);
- Fake Encounter;
- Cases related to Women and Children;
- Atrocities on Dalits/ Members of Minority Community/ Disabled;
- Bonded Labour; and
- Armed Forces/ Paramilitary Forces, etc.6
Custodial Deaths: Alleged custodial deaths both in police custody and judicial custody are major human rights concerns that the NHRC has been facing since its very inception.
According to the National Human Rights Commission, 2,318 cases of death in police custody and 716 fake encounters have been registered with it since 1993 (The Hindu, April 21, 2010). Most of these cases are related to custodial violence (death of Sanjay Sitaram Mhaskar: Maharashtra; Case No. 210/13/98-99-ACD), negligence on the part of the prison authorities (death of an inmate: Bihar; Case No. 3165/4/1998-99), delay in the provision of timely medical aid (death of Sibu: Kerala; Case No. 136/11/2000-2001-ACD), police firing, police mistreatment, police beating or police torture (death of Radhey Shyam: Rajasthan; Case No. 205/20/1999-2000-CD, and death of Punjabhai Somabhai Thakor: Gujarat; Case No. 6123/95-96/NHRC), police negligence (killing of Mahendra Pal Singh: Utter Pradesh; Case No. 39/24/97-98/ACD) and so on.
In all these cases, the Commission either directed the authorities or the state governments concerned to pay compensations to the families of the victims or made certain recommendations to undertake enquiry into the case or to pay compensation to the bereaved families. In most of the cases, their recommendation were complied with and in certain cases ignored or asked for review of its order (Killing of Mahendra Pal Singh: Uttar Pradesh; Case No. 39/24/97-98/ACD).
However, one significant point to be noted here is that the NHRC ‘has brought into sharp focus the problem of custodial deaths and taken steps to see that these are not suppressed by the state agencies and the guilty persons are made to account for their sins of commission and ommission’.7 As early as 14 December, 1993, the NHRC issued instructions, based on newspaper reports, to all state governments and union territory administrations that district magistrates or superintendents of police must submit reports, within 24 hours of the occurrence of any custodial death. (The first suo motu action was the Bijbehara incident in Jammu and Kashmir involving the death of 31 civilians and injury of about 75 in a firing incident by the Border Security Force. It was informed that the recommendations made by the Commission were later accepted by the Central Government).8
Thereafter, on 10 August 1997, the Chief Ministers were requested to ensure that all post-mortem examination of deaths in custody be videographed. The NHRC also succeeded in persuading the Central Government to sign the United Nations Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Punishment or Treatment (UNCAT) on the 14 October 1997. After much persuasion the “Prevention of Torture Bill, 2010” was introduced in the Lok Sabha on the 26th April, 2010. It has to be passed yet. The Bill is seen as the first step towards ratification of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment adopted by the United Nations General Assembly in December 1975. Ratification of the convention requires enabling legislation having provisions that would be necessary to give effect to the articles of the convention.
Police Excesses: Torture, illegal detention/unlawful arrest, false implications, fake encounters are some forms of police excesses resulting in the gross violation of human rights in the country. The Batla House Encounter Case on 19, September 2008 is an example to this. There are many other cases of inhuman treatment by the policemen such as the alleged amputation of male organ of Shri Jugtaram in police custody, Barmer, Rajasthan; torture and gang rape by police officers in Tripura (Case No. 5/23/2003-2004-WC); illegal detention and torture of Anil Kumar, Maharashtra (Case No. 517/13/98-99); false implication and torture of the complainant and others by police, Delhi (Case No. 3069/30/1999-2000); policemen turns robbers and kill innocent citizens (Case No. 144/93-94/NHRC); and there are many more instances of police harassment and torture which are not reported.
The NHRC has made recommendations for enquiries and compensation and reforms in most of these cases of police excesses and police high-handedness.
The issue of police reform was first raised by the Commission in 1995-96 when it soon became apparent that the handling of individual complaints, important as it was, would not provide a lasting cure for human rights violations because the supposed protectors of rights were often themselves the predators.9
The Commission has been persuading the Central Government to replace the century-old Indian Prisons Act, 1894 since 1994-1995. This would ensure more effective implementation of the rule of law rather than rule by force. However, despite various recommendations by the Commission, the Act is still there. The Commission has also been making recommendations on issues of over-crowding in jails, the lack of sanitation, delays in trial, the health of prisoners, the payment of wages, the remission of sentences and the release of prisoners sentenced to life imprisonment. The NHRC has also been voicing against capital punishment. The NHRC also suggested the adoption of a model all-India Jail Manual.
The issue of ‘encounters’ was the subject of detailed hearings by the Commission in 1996-97, comprehensive guidelines being sent to Chief Ministers on 27 March 1997 in respect of the manner in which such ‘encounters’ should be investigated and reported upon.10 Further, the NHRC also sent guidelines on the subject arrest and detention, and to the use of polygraph tests, However, such guidelines of the Commission are violated in many cases.
As to the administration of criminal justice, substantive proposals were first made by the Commission in the same year and elaborated in succeeding years.11 The Ministry of Home Affairs, the Government of India by its order dated 24 November 2000 constituted a Committee on the Reforms of the Criminal Justice System (Justice Malimath Committee) with a view to examine the possibility to review the main statutes governing the criminal justice system in India, namely the Constitution of India of 26 November 1949, the Indian Penal Code (Act No 45 of year 1860), the Code of Criminal Procedure (Act No 2 of 1074), and the Indian Evidence Act (Act 1 of 1872).12 The Committee submitted its report in March 2003 with 158 recommendations. However, the aftermath of the recommendations is the same story of long period of silence.
Besides this part of the story, the most important contribution of the NHRC in this regard is that, after making an in-depth study with the Law Commission, the Commission recommended to the Central Government that the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) not be renewed when its life expired on 23 May 1995, on the grounds that it was “incompatible with our cultural traditions, legal history and treaty obligations”.13
Treatment of Refugees: Another most important work of the NHRC is the directions it has given and the efforts it has taken in the treatment of refugees. The Commission asked the Arunachal Pradesh Government to take all possible measures to ensure the safety of the life and property of Chakmas and Hajongs living in the state. The Commission approached the Supreme Court, which acted with great swiftness to protect this group, laying down in the process, the obligations of the state in the matter under Article 21 of the Constitution and the relevant international instruments relating to the status of refugees.14 The court ordered the Arunachal government to repel any attempt to forcibly evict or drive Chakmas out of the state by organised groups, if necessary by requisitioning the services of paramilitary or police force, and requesting the Centre to provide such additional force as was necessary.15 The Chakmas experience was a great success of the Commission.
The Commission has since been active in protecting the rights of the refugees in India. In that year (1994), the NHRC also directed the Tamil Nadu state government to provide immediate medical treatment to Sri Lankan Tamil refugees located at a camp in Vellore and to conduct periodic medical checks on them.
In November 2003, the Commission has constituted an Expert Committee on Refugees to look into the matters concerning the refugees in India and for the better protection of their rights. India has not signed any Convention on Refugees and the silence on the Commission’s part is being questioned at the international fora.16
Economic and Social Rights: The attainment of economic and social rights is considered essential for enjoying other human rights. The NHRC has been insisting that the state has the obligation to ensure to its people that these rights are respected. The Commission has made many recommendations in this regard. It has been insisting, since 1994, for the right to free and compulsory education; for the right to food; the right to health care and public hearings for access to health care; enunciation of a national accident policy and so on.
Following the starvation deaths arising out of drought conditions in Koraput, Bolangir and Kalahandi districts of Orissa the Commission recommended several short term and long term measures like emergency feeding programmes, old age pensions, employment generation, land reform and paradigm shift in public reforms and relief codes relating to public relief.
The Rights of Women and Children: The NHRC has been working to protect and promote the rights of women and children in various ways. Some of its efforts can be recounted under the following:
- Issues related to discrimination against women and children and gender related violence were touched upon from the beginning, in the Annual Report for 1993-94.
- Prevention and combating of Child Marriages (Child Marriages: Chhattisgarh .Case No.56/33/2003-2004).
- Elimination of child labour from hazardous industries in the country. In 1998-99, the Commission recommended the prohibiting of employment of children below the age of 14 years by government servants. The Commission took suo motu cognizance in seven cases of alleged human rights violations during July, 2011 and issued notices to the concerned authorities for reports. (One such case- A child worker beaten to death in Madhya Pradesh. Case No. 1319/20/0/2011).
- Prevention of sexual harassment at the work place. (Sexual harassment in the work place and suicide of Sangeeta Sharma, Advocate, Andhra Pradesh. Case No. 203/1/2000-2001).
- The issue of ‘discrimination’ as a cause of human rights violations was examined in great detail in the Commission’s Annual Report for 1999-2000, especially in relation to gender and caste based discriminations. The Commission commented on matters relating to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
- Prevention of human trafficking particularly women for sex trade; increase in the maintenance allowance for divorced women; the protection of the anonymity of victims of rape; the conditions of women in Vrindavan; nomenclature to be used in official documents for addressing the wives of persons who have died; the establishment of a cell within the Commission to examine complaints from women; and the education of the children of sex workers.
From all these efforts, it can be observed that the Commission has approached the rights of women and children in a variety of ways: legal, social, cultural, through the route of the right to health and the right to education.
Moreover, the NHRC is concerned with the rights of the Marginalised and Vulnerable Sections of the Society, that is, the rights of Dalits and Adivasis, and the rights of Minorities; the rights of Persons displaced by Mega Projects; rights of the Disabled; rights of the Elderly; the rights of Denotified and Nomadic Tribes; rights of Persons affected by natural Disasters. Besides, continuous attempts are being made by the Commission to address various human rights issues.
Consideration of Important Bills/Ordinances and Monitoring Their Impact17: The Commission has regularly examined and has communicated on important Bills or Acts such as-
- The Terrorist and Disruptive Activities (Prevention) Act, 1987
- The Prevention of Terrorism Bill, 2000
- The Prevention of Terrorism Ordinance, 2001
- The Freedom of Information Bill, 2000
- The Child Marriage Restraint Act, 1929
- The Protection from Domestic Violence Bill, 2002
The Commission also reviews the implementation of international treaties.
Cases Related to Armed Forces: The NHRC cannot do much regarding the human rights violations perpetrated by the members of the armed forces. However, the Commission has taken up many cases of human rights violations by the members of the armed forces and also made valuable recommendations. The initiative the Commission has taken up to teach members of the armed forces about human rights is a significant step.
Some Major Accomplishments of NHRC18
Some important achievements of NHRC can be highlighted as follows:
- A fast-track system for complaints has been introduced, and computerization and other procedural changes adopted, to deal with the heavy load of casework.
- All States have set up Human Rights Cells in the Offices of the Directors-General of Police. Seventeen States have set up State Human Rights Commissions. A number of States have also set up Human Rights Courts.
- Apart from attending to individual complaints, the Commission has also recommended systemic reforms in Police functioning and prison administration.
- The Commission has also laid down stringent reporting requirements in cases of deaths/rapes in custody.
- On the recommendation of the NHRC, the Government of India ratified the two optional protocols to the Convention on the Rights of the Child, viz. (i) Optional Protocol to the CRC on the involvement of children in armed conflict; and (ii) Optional Protocol to the CRC on the sale of children, child prostitution and child pornography.
- Pursuant to the Commission’s efforts, the subject of human rights has been introduced in the curricula of educational institutions.
- The Commission has contributed to the evolution of a National Plan of Action on Human Rights Education and is closely monitoring the preparation of a National Plan of Action for the protection and promotion of human rights.
- The NHRC is actively involved, in collaboration with other organisations, in providing human rights sensitisation and training to civil servants, personnel of army and paramilitary forces, judicial officers and prison officials.
- In collaboration with the Department of Women and Child Development, Government of India and UNICEF, the Commission has prepared a handbook for sensitizing the subordinate judiciary on Trafficking of Women and Children for commercial sexual exploitation.
- Recognising the crucial linkages between public health and human rights, the Commission has made significant recommendations on maternal anaemia, HIV/AIDS and access to healthcare.
Besides these, the NHRC has made significant major recommendations for better protection and promotion of human rights in the country.
Assessing the Credibility of NHRC
The NHRC is the supreme and independent body for providing human rights protection in the country. Since its inception in 1993, however, the Commission is underrated for providing quality services. While the Government of India was at fault for not complying with the recommendations made by NHRC on various occasions, the Commission was also responsible for not supporting its strong words with action.19
NHRC Fails to Use Its Meagre Powers20
Although much criticism of NHRC’s structural shortcomings should be directed at the Indian Government for deliberately designing a weak institution, the NHRC is not powerless.
Annual Reports: None of the NHRC’s Annual Reports after the April 2004-March 2005 report have been brought before Parliament. These unreleased reports have lost much of their purpose as a means of holding the government accountable and as an advocacy tool of the Commission. However, the NHRC has taken little public action in the last several years to continue to press this issue, and whatever lobbying it may have done behind the scenes appears to have been ineffective.
Nothing in the Protection of Human Rights Act explicitly prohibits the Commission from submitting reports to the Government and also simultaneously releasing them to Parliament and to the public. This would create an image of reliability on the Commission by the people.
Modest Compensations: Aside from neglecting its human rights reporting powers, the NHRC has recommended compensation for victims of human rights abuses and prosecution of perpetrators far too sparingly for far too long.
Further, the awards recommended have been modest at best. There is a punitive element to these awards, not just a compensatory one. Awards should be fashioned to make it prohibitively expensive for agents of the state to commit serious human rights abuses- not so low that there is essentially a human rights abuse market where death sells for Rs. 200,000 and rape for Rs. 50,000.
Poor Handling of Complaints21
The NHRC has failed to adequately redress grievances from individual complainants in a timely manner. There is lack of investigative resources and personnel. Often, the Commission receives a complaint and, instead of asking its own personnel to investigate, it merely requests a written report from the police department or other government office accused of wrongdoing. Such government reports are often accepted by the Commission without question, and many complaints are dismissed without any independent investigation. In other instances, complaints address to the NHRC are disposed with directions to other authorities concerned to take such action as is appropriate. However, the Commission rarely ever follows up to determine whether its instructions have been carried out.
The result is that the NHRC has become a ‘glorified courier service’. It forwards complaints from victims to perpetrators, receives reports from perpetrators denying their allegations, and then forwards its notices to victims explaining that their cases have been closed. Without the resources and will to conduct independent investigations, the NHRC should get out of the business of entertaining individual complaints.
NHRC and The Armed Forces
The experience of the NHRC in relation to Armed Forces is a tragedy. The NHRC does not have any jurisdiction to independently investigate human rights violations perpetrated by the armed forces. However, a very large number of complaints of human rights violations are directed against the members of the armed forces. This is certainly true of Jammu and Kashmir and many parts of the North-East region where there is application of the Armed Forces Special Powers Act, 1958. In this connection, the Protection of Human Rights Act weakens the NHRC’s effectiveness in providing redress to the public in such cases. All that the Commission, under Section 19 of the Act, can do is to call for reports from the Central Government in such cases and then make recommendations to the Government or not “proceed with the complaint” at all. This makes mockery the Commission.
The Protection of Human Rights (Amendment) Act, 2006, the first and the only amendment of the Protection of Human Rights Act, 1993 that created the NHRC could not bring much significant improvement in making the Commission an effective and efficient institution. It is still characterised by
- Lack of jurisdiction to independently investigate human rights violations perpetrated by the armed forces;
- Negligible powers of enforcement;
- Complete financial dependence on the Central Government;
- A politicised appointment process that all but assures reliable and government- friendly Commission members;
- A staff hiring process that borrows most staff members from other government departments for relatively short assignments at the Commission;
- A chronic shortage of well-trained and resourced staff;
- A lack of capacity the avalanche of individual complaints in a timely manner; and
- Inexcusable parliamentary delays in considering the NHRC’s annual reports, thereby delaying the report’s public release.
The performance of the National Human Rights Commission as a protector and promoter of human rights in the country is not always satisfactory. Added to the frustration of having meagre powers is the failure of the Commission to use these powers in an effective and efficient manner. We can say that the NHRC has so far served its intended purpose of presenting a positive human rights story about India to the outside-the reality of the situation being often overlooked. It tells about credibility the Commission possesses. The credibility of such a public institution depends upon a high degree of public confidence. And, how far the NHRC commands such public confidence over the people of India is questionable.
However, this is not to say that the NHRC has done nothing regarding the protection and promotion of human rights in India. In fact, it has done a lot. And, it is the only such body that has the potential and capacity to protect human rights in the country. Moreover, the Commission has succeeded in cultivating a ‘human rights culture’ in India to a significant extent. The intended extra effort the NHRC has to take is the will and some more powers to fight for those rights that we deserve as human beings equally.
Notes and References
- V. Vijayakumar, The Working of the National Human Rights Commission: A Perspective, p.219 (interview with Chandru, Advocate, Madras, 5 December 1996).
- The Protection of Human Rights Act, 1993.
- The “Principles relating to the status of National Institutions” adopted at the first international workshop on national institutions for the protection and promotion of human rights held in Paris in October, 1991, and endorsed by the United Nations General Assembly in Resolution 48/134 of December 20, 1993. Source: NHRC.
- Virendra Dayal, Evolution of the National Human Rights Commission, 1993-2002: A Decennial Review, Journal of the NHRC, Vol. 1, 2002, p.42-43.
- Ibid. p.47.
- NHRC website: selected case summaries.
- G. P. Joshi, National Human Rights Commission: Need for Review, Commonwealth Human Rights Initiative.
- V. Vijayakumar, the Working…., p.224.
- Virendra Dayal, Evolution…., p.56.
- Ibid. p.55.
- Ibid. p.57.
- Criminal Justice Reform In India: ICJ Position Paper, Review of the Recommendations made by the Justice Malimath Committee. Submitted to a national conference held on 9th and 10th August, 2003.
- Virendra Dayal, Evolution…., p.54.
- Ibid. p.51.
- Vijayakumar, the Working…., p.228.
- Justice A. S. Anand, Meeting of Expert Committee on Refugees, 9 March, 2004.
- Description of a book titled, “Judgement Reserved: The Case of the NHRC of India” (2001), SAHRDC.
- India’s NHRC fails to use its meagre Powers, HRF/174/07, SAHRDC.
- Wasted Opportunity to Reform NHRC, HRF/160/07.
This article was written as part of my masters coursework.