In 2012, families whose loved ones were killed by security forces in Manipur decided to fight the injustice and formed the Extra-Judicial Execution Victim Families Association. They moved the supreme court against Assam Rifles, the army and Manipur police over alleged encounter killings of 1,528 people from 1979 to 2012. Their resentment was not only against the centre and state police machinery but also against the National Human Rights Commission (NHRC), which was supposed to investigate cases of human rights violation. The petition raises a pertinent question about the mandate of the NHRC, and describes it as a “toothless tiger”.

In its defence, the NHRC, which is an autonomous body set up under the Protection of Human Rights Act, 1993, to investigate human rights abuses, told the court it has no powers to act against persons or authorities who do not follow the guidelines laid down by it. Nor does it have the power to give directions or pass orders: it can only make recommendations. This is the trouble with all commisions – the power to speak without the power to take corrective, or, if necessary, punitive action.

The verdict in the Manipur case is pending. The commission, however, exp­ects that once the judgment is pronounced, it will add more clarity to its mandate, powers, and functions. Speaking on its 23rd Foundation Day on October 21 last year, NHRC chairman HL Dattu, a former chief justice of India, hoped the judgment would make the commission “roar like a tiger”. 

The impact

Over the years, there have been cases of human rights abuse across the country, particularly in Jammu and Kashmir, Chhattisgarh, Jharkhand and the northeast region. So, has the commission made a significant impact on the state of human rights in the country?
“Over 23 years, it [NHRC] has definitely contributed in terms of giving credibility to the term ‘human rights’,” says Henri Tiphagne, who was awarded the Amnesty International Human Rights Award for 2016. “Before NHRC came up, the term ‘human rights’ was taken in a wrong sense by the states.”

He recalls how, in 1982, the founders of the People’s Union of Civil Liberties (PUCL) were thrashed by the police simply for taking out a procession against police atrocities.

“Individuals in favour of human liberties were looked upon as if there was some hidden meaning behind their work or some political agenda behind it. The state considered the words ‘human rights’ as a cover-up for Maoism or Naxalism,” says Tiphagne, who is the executive director of People’s Watch, a human rights organisation.

Ravi Nair, of the South Asian Human Rights Documentation Centre (SAHRDC), says the NHRC was never intended to prevent human rights violations. He says that then union home minister SB Chavan had told the Rajya Sabha on March 16, 1992 that the proposed human rights commission was to “counter the false and politically motivated propaganda by foreign and Indian civil rights agencies. We still have to decide whether the body will be totally government sponsored or whether it will be placed in the voluntary sector”.

Nair says the idea was that the findings of the commission would act as correctives to the allegedly biased and one-sided reports of the NGOs, which drew international criticism to India.

“The proposed commission was seen as an instrument to blunt or deflect the increasing international criticism of India’s human rights practice rather than creating accountability processes,” says Nair.

The leadership

The NHRC, however, has steadily become more busy. From 496 complaints it received in 1993-94, in 2015-16, the commission registered more than one lakh cases of civil, political, economic, social and cultural rights.

The moot question is whether the NHRC is effective in successfully tackling those complaints. Clearly, it depends largely on the chairperson, who has to be a former chief justice of the supreme court (SC). He is assisted by four members – a sitting/former judge of the SC, a sitting/former chief justice of high court and the remaining two having knowledge or practical experience relating to human rights.

An institution is defined by the person who leads it. Pro-active chairpersons have made NHRC count. Some of the seven chairpersons the commission has had till now have been quite effective, pushing state governments to take accountability of human right violations. The 2002 Gujarat violence is a good example in which the NHRC under the chairmanship of justice JS Verma – followed by justice AS Anand – took up cudgels on behalf of the victims.

Justice Verma pushed for a Central Bureau of Investigation (CBI) probe into the riots. The investigation agency then probed the horrific cases of Best Bakery in Vadodara, the Godhra carnage, the Gulberg Society killings, Naroda Patiya and Sardarpura.

Justice Anand petitioned for a retrial in the Best Bakery case (in which 14 people were burned alive by a mob) after the accused were acquitted by the local court. The commission even took suo motu cognisance of the case and directed the then Narendra Modi-led Gujarat government to report the measures taken to restore peace in the state.

There are other instances too where the NHRC has stepped in proactively. A petition related to the militancy period in Punjab, during which police allegedly killed 2,097 people and cremated their bodies, was taken up by the NHRC and the state was ordered to deposit Rs 18.39 crore in compensation.

There have been times when the panel has been led by chairpersons whose previous record came to be questioned: for instance, justice Ranganath Misra, the first chairperson, was criticised for his inquiry report in the 1984 riots in Delhi following the assassination of prime minister Indira Gandhi. The next, justice MN Venkatachaliah, was considered close to prime minister PV Narasimha Rao. He was the CJI when the Babri Masjid was demolished in 1992 and warnings from then attorney general Milon Banerjee had practically gone unheeded.
In an interview, advocate Prashant Bhushan had alleged that justice Anand, who later became the fourth NHRC chief, was involved in land deals made with false affidavits. However, no inquiry was ordered. Previous chief KG Balakrishnan was under a shadow when a judge indicated that he might have shielded former telecom minister A Raja in the 2G spectrum allocation case.

The objective of appointing retired chief justices of India as NHRC chiefs was to make the commission effective. Says Tiphagne, “It was to provide a speedy remedy, which failed. According to international guidelines, a victim of human rights abuse is not only to be compensated but the perpetrator should be prosecuted. There should be apology or assurance of non-repetition of the act. This judge-heavy institution, however, failed to fulfill these basic functions.”

From the likes of justices Verma and Anand, who raised pertinent questions during the Gujarat riots, the NHRC saw a downturn with news reports of an active politician, BJP vice-president Avinash Rai Khanna, being recommended by a high-level panel to be made an NHRC member mid-November. This created quite a furore among rights activists and the opposition. The recommendation was also challenged in the SC. The noise seems to have put the brakes on Khanna’s joining. The NHRC registrar told Governance Now there was no notification yet of Khanna joining. And Khanna himself, when contacted on phone, said, “I am nothing in the NHRC. It was just media reports.”

That the current government even tried to test the limits by trying to sneak in a political appointment is a matter of concern. As Maja Daruwala, of the Commonwealth Human Rights Initiative, puts it, “The possibility of an active politician from the ruling party joining the institution will further destroy trust in the commission’s ability to be impartial.” According to her, the cause of institutional failure is due to the way in which the appointments are made. In the past, bureaucrats and high-ranking police officers with no demonstrable knowledge of or devotion to human rights were appointed as members. IPS officer PC Sharma was appointed as NHRC member in 2004 after his retirement as CBI director. Sharad Chandra Sinha, a former D-G of the National Investigation Agency, is a member of the NHRC.

Activists say that senior police officers should not be made members of the NHRC; instead, the appointments should be of people who are genuinely working in the field of human rights.

More teeth

To make NHRC more effective, amendments were made in the Protection of Human Rights Act, 1993 (PHRA).

“The NHRC is no longer required to give an advance warning [intimation] to a state government before conducting prison visits. But the new provision was never applied to visits to detention and interrogation centres used by the army and paramilitary forces across the country, particularly in the state of Jammu and Kashmir, or to non-prison custodial facilities such as mental institutions,” says Nair.

The centre, and even parliament, seem to take matters related to the NHRC without any sense of urgency. In 1998, the commission set up a committee headed by former chief justice AM Ahmadi to improve the PHRA. Its recommendations were forwarded to the centre in early 2000. But it was six years before just a few of the recommendations were incorporated in the Act. The commission’s annual report gets no priority in parliamentary discussions and is often held up for a year or two. The latest available report is of 2012-13.

“Despite the resulting inadequacies of the PHRA and parliament’s disregard for the Ahmadi committee, the commission remained conspicuously silent on a matter that goes to the heart of its own powers and institutional identity. Such silence is disgraceful. The commission’s failure to stick up for its own recommended draft amendment to the PHRA is only one recent case of its acquiescence,” says Nair.

So far, NHRC can inquire and take suo motu cognisance in cases of human rights violation or negligence in the prevention of such violation by a public servant. It can intervene in any proceeding pending before a court, review the safeguards provided under the constitution, study treaties and make recommendations for their effective implementation.

However, officials at the commission defend its position. “The commission was not constituted to replace the already existing legal and administrative frameworks like courts, executive or any other body.  Exercising the power of a court is not possible for the NHRC,” says RK Chaturvedi, registrar (law) at the commission. “But at least we are able to set the law in motion in a case. We are able to initiate a process and deliver our duty within the given mandate.” The question, though, is how to achieve effectiveness, possibly within the current framework.

The problem

The real trouble is that NHRC is not able to force state governments or state commissions to act on its recommendations. State human rights commissions do not fall under the purview of NHRC. Therefore, NHRC cannot take up a case if it is already taken up by the state.
The encounter killing of 20 Tamils by the police in Andhra Pradesh on April 7, 2015 is an example of the kind of hurdles NHRC faces.
Tiphagne says, “We approached the NHRC to take up the matter and dispose of it at the earliest. They registered the complaint, summoned people and issued notices. But in June, the Andhra Pradesh high court stayed the NHRC’s orders as the state government said in appeal that the national commission should not interfere as a state commission already exists.”

Some of the NHRC reports have also come in for criticism for alleged bias. The NHRC’s report earlier in 2016, on the reported exodus of 250 Hindu families from Kairana in Shamli district of Uttar Pradesh seemed to confirm what BJP MP Hukum Singh claimed – that the families fled owing to the fear of a particular community. However, National Commission for Minorities members Praveen Davar and Farida Abdulla Khan countered that the report of the NHRC was not based on facts but on “communal flavour”.

Similarly, the commission’s report on the Salwa Judum in Chhattisgarh was criticised. Lawyer K Balagopal, in a commentary in the Economic and Political Weekly, wrote: “The report, prepared by a group set up by the police wing of the NHRC, makes no pretence of neutrality or objectivity. It reads like a partisan statement, whose tone and tenor is to protect the Salwa Judum and its image from being tarnished by allegations of crime.”

Nair calls the NHRC a “glorified courier service”. “It forwards complaints from victims to the perpetrators (police and security forces) receives reports from perpetrators denying the allegations, and then forwards notices to victims explaining that their cases have been closed,” he says.

Complaints addressed to the NHRC are disposed of with directions to other authorities that they should take such action as is appropriate, he says. “However, the commission rarely ever follows up to determine whether its instructions have been carried out.”
The NHRC has often cited lack of manpower behind its failure to take up the cases. The commission currently has a staff of 450 people. Several recommendations have been made to increase the manpower.

“This strength was sufficient till 1997, when the commission received some 50,000 complaints a year. Now, as the numbers of complaints are increasing, the workforce has to go up proportionately. There should be an objective assessment of the staff to process the complaints in a timely manner,” says Chaturvedi.

The commission believes that investigating every case is not possible. “We try to settle the case through intervention as we cannot run a parallel investigation in every case,” says Chaturvedi.

archana@governancenow.com

The article appears in the January 16-31,. 2017 issue