In April 2000 the law ministry received a report from its advisory body – the law commission – on viable legislative options to combat terrorism and anti-national activities. It had been five years since the infamous Terrorist and Disruptive Activities (Prevention) Act (TADA) lapsed on account of numerous allegations of its misuse. The home ministry was nervous. It felt an important blank had not been filled in a timely manner. It feared this negligence could lead to grave consequences. On the government’s request, therefore, the law commission drafted the Prevention of Terrorism Bill.

In the meanwhile, the National Human Rights Commission (NHRC), under the chairmanship of veteran supreme court judge late justice JS Verma, deliberated on the bill and gave its opinion to the government. Stressing the uselessness of the move, the NHRC cited about a dozen Acts already in place to criminalise unlawful activities. The commission recommended that wherever necessary, the quantum of punishment under the existing Acts be increased. It also advised against the need to have a “separate new bill for the purpose of creating new offences”.

The NHRC told the government to increase speed and efficiency while investigating a case instead of making cosmetic changes. The commission strengthened its case by citing examples of wrongful use of TADA – in effect from 1985 to 1995 – and MISA (Maintenance of Internal Security Act) during the Emergency days earlier. It argued that the proposed bill, if enacted, could have similar ill-effects of providing, unintentionally, the government with a strong weapon capable of gross misuse and violation of human rights.

All this, however, did not move the government, and it introduced the Prevention of Terrorism Ordinance in 2001. The commission once again warned the government. It said, “Undoubtedly, national security is of paramount importance. Without protecting the safety and security of the nation, individual rights cannot be protected. However, the worth of a nation is the worth of the individuals constituting it. Article 21, which guarantees a life with dignity, is non-derogable.” Despite the commission’s attempts, the bill was eventually passed in parliament, making way for yet another controversial law, the Prevention of Terrorism Act (POTA), 2002.

However, after just two years the Act was revoked. Reason: The draconian law facilitated gross violation of human rights. Had the government paid heed to the recommendations of the NHRC, it could have saved many tormented lives, saved itself from humiliation, and saved time and capital as well.

Apart from the government’s cold-shouldering of the commission, the incident primarily reflects the poor say the national institution has, even in matters of its expertise. Now, with the commission taking suo motu cognizance of the April 7 ‘encounter’ of 20 alleged red sanders smugglers by the Andhra Pradesh police, the significance of the NHRC’s yet-to-be-delivered verdict would again stand on trial soon.

The inception

An autonomous body, the NHRC was constituted in 1993 under the Protection of Human Rights Ordinance, which was later converted into an Act. The chairperson of the commission is a former chief justice of India, while the members include a sitting or former judge of the supreme court, a sitting or former chief justice of a high court, and two persons having knowledge or practical experience in matters relating to human rights. All members are appointed by the president, in consultation with the prime minister, home minister, leaders of opposition in Lok Sabha and Rajya Sabha, speaker of the Lok Sabha, and deputy chairman of the Rajya Sabha. 

The commission, while inquiring into complaints, has powers of a civil court trying a suit under the Code of Civil Procedure. In particular, the commission can summon and enforce the attendance of witnesses and examine them on oath, call for the production of any official document, receive evidence on affidavits and issue notices to government bodies and officials seeking a report on any incident of human rights violation. However, it does not have power to penalise, or ensure accountability from a concerned authority or individual accused of human rights violation. Saurav Datta, programme officer (police reforms) at the Commonwealth Human Rights Initiative, closely observes NHRC’s role in providing relief to victims whose rights are violated. “The commission derives its power to set up inquiries from the Commissions of Inquiry Act. As such, it is not mandatory for the government to act upon them, and it can very well keep the commission’s report on the backburner,” says Datta.

Prabhakar Sinha, a resident of Muzzafarpur, Bihar, heads the People’s Union for Civil Liberties, a prominent human rights body. Sinha recalls an incident from his hometown on which an important report by the NHRC was put aside by the state government to gather dust.
“On January 26, 1994, Bihar police killed Jogi Thakur, a criminal, in an encounter. Thakur’s wife alleged the encounter was fake. She approached the NHRC for justice. Acting on the complaint, the commission sent a letter to the Bihar police seeking an explanation on the incident. Fortunately, the then deputy inspector general of police of Champaran was an upright officer, who after investigating the case, sent a report to the NHRC concluding that the police had indeed killed the criminal in a fake encounter. The NHRC then asked the Bihar government to start prosecution against the SP concerned, but no action was taken.”

The reason behind giving status with no power to the NHRC lies behind a major reason that had led to its formation. During the early 1990s, the Indian government was being highly criticised by international organisations, particularly Amnesty International, for alleged violations of human rights primarily in Jammu and Kashmir and Punjab. Both the states were suffering from insurgency and terrorism. What followed was gross violation of human rights in the form of brutality by police and army on civilians. As the government was still coming to grips with the situation, added international pressure reiterated the need to form a body to deal exclusively with human rights violation cases.

In the first few months of its inception, the NHRC found itself in the spotlight with the civil society enthralled to see, for the first time in the country, formation of an autonomous body meant to protect human rights. There was also a sense of anxiety among human rights activists, keen to watch the results of the commission’s work. Virendra Dayal was one of the first members to be appointed to the NHRC in 1993. He served the commission for the next 10 years. Dayal says though the statute was not perfect, the commission made efforts to work around its inadequacies. To remove lack of clarity in handling cases, the NHRC started meeting state human rights commissions annually, to deliberate upon human rights issues and violations. “It is always better to have a weak Act that is implemented well than to have a strong Act implemented weakly,” says Dayal.

Even a strong Act implemented strongly would be acceptable, in the case of the NHRC, even a weak Act is not being implemented strongly. Prabhakar Sinha flags both structural and implementation flaws in the Act that make the commission less effective. Apart from former CJI and senior judges, two posts of NHRC members are reserved for people who have knowledge and experience in the field of human rights. However, they are seldom occupied by individuals carrying the required expertise. The government has often come under heavy criticism for appointing “its own men” to the posts reserved for human rights experts.  IPS officer PC Sharma was appointed as an NHRC member in 2004, one year after his retirement as Central Bureau of Investigation (CBI) director. Sharma retained his position for eight years. Even Sharad Chandra Sinha, a former director general of the National Investigation Agency, is an NHRC member. “Such attitude shows the lack of the government’s intention to protect human rights,” says Prabhakar Sinha.

But the larger issue that plagues the NHRC is that its recommendations are not binding on the government. “Even the rulings of the central information commission are binding on the government, unlike in the case of the NHRC which handles issues of far more importance in society,” says Prabhakar Sinha. But for Dayal, the commission can make its presence felt by being persistent. “If the NHRC feels very strongly about a particular matter, it can take it from the state to the central government or move court.”

But does the commission take a strong stance in each complaint it receives? For Prabhakar Sinha, an assessment of the NHRC’s annual reports can say a lot of things. “Most of the commission’s achievements pertain to ensuring compensation by the government to family members of victims whose rights have been violated. Money has never been a problem for the government, as it is anyway required to provide compensation. However, one would hardly find the commission recommending that the government take strict action against the public servant responsible for the violation,” says Prabhakar Sinha.

Also, the commission is weighed down by the ever increasing number of complaints. In the first six months of its inception it received 486 complaints, which rose to 6,987 in 1994-95. In 2000-01, the number jumped to 71,555. This year, 9,236 complaints were received by the NHRC in February alone. In the same month, the commission disposed of 12,736 complaints, even as 43,729 complaints remained under consideration.   

The ups and downs

In its first decade, the NHRC did notable work. It had a role in letting TADA lapse in 1995, by way of repeated talks with parliamentarians and government functionaries to repeal the Act. It took up the cause of Chakma refugees in Arunachal Pradesh. Accepting the NHRC’s writ petition, the apex court in 1996 ordered the state government to protect life and personal liberty of each member of the ethnic community, and to initiate the application process for citizenship as sought by the refugees. The commission heavily criticised the Gujarat government’s ‘inaction’ in the 2002 communal riots and recommended a CBI probe.

However, its second decade was not so illustrious. Justice AS Anand was accused of abusing his office even though no inquiry was conducted to verify the allegations. To add to the lack of landmark recommendations and interventions, the commission’s image in society has further been tarnished by the not-so-credible track record of its outgoing chairperson, KG Balakrishnan.

The former CJI has courted a number of controversies. In 2010, Balakrishnan was accused by justice HL Gokhale, a sitting SC judge, of misrepresenting facts to allegedly protect former telecom minister A Raja, who had been accused of attempting to influence justice R Regupathi in a criminal case. The report about the attempt to influence a judge was sent to Balakrishnan by Gokhale when the latter was serving as the chief justice of Madras high court. Justice Regupathi was also serving in the Madras high court at that time.  

Balakrishnan has consistently opposed the decision of the chief information commission to bring CJI’s office under the Right to Information Act, which mandated judges to disclose their assets in the public domain. An RTI query on Balakrishnan’s income tax returns was also declined upon the former CJI’s request. In 2011, Balakrishnan’s son-in-law PV Sreenijan was accused of acquiring assets disproportionate to his known sources of income. Soon the income tax department in Kochi revealed that more relatives of Balakrishnan were apparently holding disproportionate assets.

In the past few years, many prominent lawyers and non-government organisations have pressed for Balakrishnan’s resignation as the NHRC chief. Now, with his term ending on May 11, another controversy has set in pertaining to the appointment of the next chief.

On April 17, senior advocate and president of All India Bar Association, Adish C Aggarwala, filed a writ petition in the supreme court challenging the selection procedure for NHRC chairperson. Aggarwala contends that the government had apparently approached only one former CJI, P Sathasivam, for the post of NHRC chief while ignoring three other former CJIs – Justice SH Kapadia, Justice Altamas Kabir and Justice RM Lodha. “There is no specific rule to appoint the NHRC chairperson. Though the statute mentions the people who appoint the chairperson and other members, a proper methodology to make the selection process transparent is nowhere to be found,” says Aggarwala.

Sathasivam was caught in a controversy when he accepted the post of governor of Kerala in September 2014, four months after retiring as CJI. “Once one accepts the position of a governor, he stands at the mercy of the executive. He would be in support of the government, which is often the accused in a case taken up by the NHRC,” says Aggarwala. He feels that members of the appointing committee should select the chairperson after taking consent of all former CJIs. Another suggestion, Datta says, to assess the suitability of a former CJI is by analysing the observations made and verdicts delivered by the former CJIs in the lower courts, particularly in cases pertaining human rights violations.

Still, the commission needs a stronger statute. “The NHRC needs powers of a criminal court to summon individuals so that one cannot choose to ignore its notices,” says Datta. Prabhakar Sinha agrees that recommendations made by the commission need to be binding. “There should be a separate cadre of police officers for the NHRC to investigate cases. The cadre should not be part of the state police,” he adds.

Dayal, however, says, the NHRC must keep performing its duty. “The NHRC never claimed to be parliament or the judiciary of the country, but it indeed is the conscience of the country. So it must speak and express its views.”

yogesh@governancenow.com

(The article appears in the May 16-31, 2015 issue)