empowering-national-human-rights-commission-nhrc-an-analysis

Context: A Full Bench of the Madras High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.

  • NHRC completed 25 years on October 12, 2018.  Its headquarter is located in New Delhi.
  • Background: 
    • Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps. 
    • The key question revolves around the legal meaning of the word “recommend” whether it is binding or not?
  • Significance of the issue:
    • Fourth branch institutions: The complexity of governance has necessitated the existence of a set of independent bodies like the Election Commission, Human Rights Commissions etc apart from the three “branches” — the legislature, the executive, and the judiciary.

 

What are the National Human Rights Institutions (NHRIs) ?

  • NHRIs are state bodies with constitutional and/or legislative mandates to protect and promote human rights. 
  • While they are part of and funded by the state apparatus, they are nonetheless required to function independently from government in accordance with the Paris Principles.

About the Global Alliance of National Human Rights Institutions (GANHRI) 

  • It was established in 1993, and previously known as the ICC (International Coordinating Committee)
  • The Global Alliance is formed by all the NHRIs member of the four regional networks. 
  • Member NHRIs in full compliance with the Paris Principles (‘A’ status) are entitled to become voting members and to hold governance positions. NHRIs partially in compliance with the Paris Principles (‘B’, ‘C’ and no status) can participate in the meetings but are not entitled to vote or to hold governance positions.
  • One of the key functions of the Bureau is to assess the applications for membership, review and determine the accreditation status of NHRIs, following a recommendation from the Sub-Committee on Accreditation (SCA). 
  • The SCA meets twice a year to make recommendations to the Bureau on NHRIs’ accreditation status. 
  • The SCA comprises one ’A status’ NHRI from each of the four GANHRI regional groupings.

About Human Rights: The Universal Declaration of Human Rights (UDHR) was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 by General Assembly resolution 217 A (III) as a common standard of achievements for all peoples and all nations. 

  • It sets out fundamental human rights to be universally protected. 
  • International Bill of Human Rights: The UDHR, together with the International Covenant Civil and Political Rights and its two Optional Protocols (on the complaints procedure and on the death penalty) and the International Covenant on Economic, Social and Cultural Rights and its Optional Protocol, form the International Bill of Human Rights.
  • The Office of the UN High Commissioner for Human Rights (OHCHR) has lead responsibility for the promotion and protection of human rights.
  • The Human Rights Council, established by the General Assembly and reporting directly to it, is the key UN intergovernmental body responsible for human rights. 
  • About the National Human Rights Commission (NHRC)
    • It is an independent statutory body established on 12 October, 1993 as per provisions of Protection of Human Rights Act, 1993, later amended in 2006.
    • It is established in conformity with the Paris Principles endorsed by the General Assembly of the United Nations by its Regulations 48/134.
    • Section 2(1)(d) of the PHRA defines Human Rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
    • State commissions: The NHRC is also the nodal body for the state human rights commissions and has the powers to refer some of its cases to the state bodies
  • Appointments
    • The NHRC is a five-member body that, can only be headed by a former chief justice of India who is below the age of 70. 
    • Each head serves for a tenure of five years.
    • The other members usually include a retired Supreme Court judge and those with expertise or experience in human rights.
    • The chairperson and members are selected by a high-level committee headed by the Prime Minister, and comprising of the Lok Sabha Speaker, the Union home minister, the leader of opposition in the Lok Sabha, leader of opposition in the Rajya Sabha and the deputy chairman of the Rajya Sabha.
  • What functions have been assigned to the Commission under the Act ?
    • The NHRC plays four key rolesprotector, advisor, monitor and educator of human rights.
    • Initiating suo motu inquiries: The Commission can receive complaints or investigate on its own about the “violation of human rights or abetment thereof or negligence in the prevention of human rights violations by public servants”.  
    • The commissions’s guidelines in 1997 mandates every custodial death and encounter killing be reported to it within 24 hours.
    • The NHRC has the authority to make interventions in court proceedings relating to violation of human rights with the approval of the court.
    • It visits, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged make recommendations thereon.
    • It study treaties and other international instruments on human rights and make recommendations for their effective implementation; 
    • It undertakes and promotes research in the field of human rights..
  • Performance of NHRC
  • Recently, the Global Alliance of National Human Rights Institutions (GANHRI), a UN body based in Geneva, re-accredited India’s apex rights watchdog with the ‘A’ status, a perfect score
  • NHRC statistics claim that cases are resolved within months and compensation is granted in 90 per cent of them.
  • As per the data there is disposal of more than 17 lakh cases, payment of more than Rs 1 billion to victims of human rights violations, carrying out over 750 spot enquiries of human rights violations, apart from conducting over 200 conferences to spread awareness of human rights across the country.
  • Interventions in the 2007 Nandigram violence in West Bengal and Salwa Judum-related incidents in Chhattisgarh 
  • The NHRC also states that its role has been significant in combating encounter killings and custodial deaths. 
  • Criticism: The Supreme Court while hearing cases relating to alleged encounter killings in Manipur observed that the NHRC has been most unfortunately reduced to a toothless tiger. 
  • They play an advisory role, with the government left free to disobey or even disregard their findings.
  • Flawed process of verifying complaints: NHRC actually sends it to the police station which would have refused to take action in the first place.
    • Much of the complaints that come to the commission are dismissed even before a preliminary hearing. 
  • Political interference: Laws require a first intervention by the police which on the will of their political masters, have often been accused of botching up investigations and subsequently affecting the outcome of court cases.
    • In its report, GANHRI noted the Commission’s failure in ensuring gender balance and pluralism in its staff and lack of transparency in selecting its members.
  • Impunity for Armed Forces: The Act does not authorise the Commission to inquire into complaints of violations of human rights committed by the members of the armed forces. 
    • “Armed Forces”, as defined in Section 2(1)(a) of the Act, means not only the naval, military and air forces but also the central paramilitary forces.
    • The commission can only send queries to the Defence Ministry.
  • Custodial deaths, one of NHRC’s focus areas, shot up from 444 to 5,496.
  • Dependent on govt. For finance and manpower: 
    • According to Section 32 of the Act, the central government shall pay to the Commission by way of grants such sums of money as it may consider fit.  
    • Section 11 of the Act makes it dependent on the government for its manpower requirements. 
    • The perennial staff shortage has meant that the NHRC, despite its quasi-judicial nature, has a large number of pending cases.
  • Delay in publication of annual reports by two or three years has been a constant problem. 
  • From 2015 to 2016, the number of cases the NHRC referred to state commissions across the country saw a 340 per cent jump, from 7,193 to 24,622.
    • Nearly half of the country’s rights violations come from that state.
  • The case for making recommendations ‘binding’ on governments: 
    • Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken, to the Commission”, within a period of one month. This is the only obligation upon the government. 
    • Powers of a civil court: The Supreme Court has held that “opinions” rendered by the Foreigners Tribunals, were binding. The same logic applies on NHRC too.
    • Legal meaning is a function of context: For example, the Supreme Court has held that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments be read as “concurrence” of the Chief Justice. Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.
  • The case for non-binding recommendations: If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so.

Way forward: 

  • Critical amendments to ‘Protection of Human Rights Act’ needed: NHRC and SHRC must be invested with the power to impose penalties, resist political interference in investigations and be independent of partisan law enforcement bodies
    • The Act should be amended to give power to the  Commission to enforce its decisions. 
    • An amendment to the act is needed to change the criteria from CJI to former SC judge for its chairperson and to mandatorily include women members in the five-member commission.
  • Annual reports for calendar years should be put online as soon as possible and no later than March of the succeeding year. 
    • The hard copy of the report should also be published at the same time.
  • It is particularly critical to find out whether poor people and groups who are socially vulnerable to abuse are being protected by the institution.
  • Although the NHRC organises consultations with NGOs, it needs to be far more proactive and independent in its collaboration with civil society.

In sum, the crucial role played by a Human Rights Commission strongly indicates that the Commission’s recommendations should be binding upon the state.