The rhetoric surrounding the establishment of India’s National Human Rights Commission (NHRC) was lofty, evoking “life, liberty, equality, and [the] dignity of the individual”. However, the NHRC has been purposefully designed to have the semblance of functionality while lacking the powers, resources and independence to fulfill its mandate. These design “flaws”—in truth design “features”—are exacerbated by a caseload far outstripping the NHRC’s meagre resources and the Indian government’s routine disregard for the NHRC’s recommendations. It should come as no surprise that the NHRC has been unable to make significant headway in improving the human rights situation in India.
To its credit, the NHRC has at times been able to rise above its myriad limitations and make a positive impact on the human rights situation in India. But such episodes have been far too rare, and in fact only illustrate that the restraints under which the NHRC operates are no excuse for its own relative lack of initiative or courage.
Amendment of the PHRA
The Protection of Human Rights (Amendment) Act, 2006 (PHRAA)—the first and only amendment of the Protection of Human Rights Act, 1993 (PHRA) that created the NHRC—is a profound disappointment.
The PHRAA’s few improvements fall far short of the expectations and hopes of the NHRC and Indian NGO community, and the standards of the Paris Principles. For example, the NHRC is no longer required to give advance warning (intimation) to a state government prior to conducting prison visits in that state. But this new provision does not apply to visits to detention and interrogation centers 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. Further, the PHRAA’s expanded definition of the term ‘International Covenants’ beyond the ICCPR and the ICESCR is still limited to UN treaties that ‘the Central Government may, by notification, specify’. The executive still has final say over the scope of human rights protections.
What is more, the PHRAA rectifies none of the NHRC’s major outstanding structural flaws—a list that reads like an inversion of the Paris Principles. These include:
(i) lack of jurisdiction to independently investigate human rights violations perpetrated by the armed forces;
(ii) negligible powers of enforcement;
(iii) complete financial dependence on the central government, which may allocate to the NHRC such sums of money as it “may think fit”;
(iv) a politicised appointment process that all but assures reliable and government-friendly Commission members;
(v) a staff hiring process that borrows most staff members from other government departments (including most problematically from the intelligence services) for relatively short assignments at the Commission;
(vi) a chronic shortage of well-trained and resourced staff;
(vii) a lack of capacity to process the avalanche of individual complaints in a timely manner; and
(viii) inexcusable parliamentary delays in considering the NHRC’s annual reports, thereby delaying the reports’ public release.
The NHRC has also been frustrated by its restrictions, and in 1998, formed its own committee—headed by Justice A.M. Ahmadi, former Chief Justice of India—to review the PHRA. The comprehensive Draft Amendment Bill of the Ahmadi Committee suggested a number of modest but important improvements to the PHRA and was forwarded by the NHRC to the Central Government in early 2000.
After sitting on the Ahmadi Committee proposal for six years, the government incorporated only the most innocuous of its recommendations into the text of the PHRAA. As a result, the first political opportunity in 13 years to reform the NHRC was squandered.
The government’s indifferent response to the Ahmadi Committee’s suggested PHRA amendments was characteristic of its attitude towards the NHRC in general. Year after year in its Action Taken Reports, the government ignored the substance of the Commission’s Annual Reports or simply stated that the Commission’s recommendations were “under consideration”.
Despite the resulting inadequacies of the PHRAA 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 in its own disempowerment.
Poor handling of complaints
The NHRC has failed to adequately redress grievances from individual complainants in a timely manner. According to the NHRC’s most recent publicly available report, the Investigation Division of the Commission consists of one officer of the rank of Director General of Police, one Deputy Inspector General of Police, three Senior Superintendents of Police, and 21 other investigators of various ranks. This staff was responsible for investigating 2,805 cases during 2004-2005. However, this represents only a small fraction of the nearly 75,000 complaints lodged with the Commission during that same time period, or the almost 50,000 cases still pending as of 31 March 2005. It is telling that of the pending cases, over 95 percent are “cases in respect of which reports were either awaited from the authorities concerned or the reports had been received and were pending further consideration within the Commission itself.”
These statistics illustrate the Commission’s pro forma approach to the vast majority of its investigations. All too 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 addressed 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 end result is that the NHRC has become a glorified courier service. It forwards complaints from victims to perpetrators, receives reports from perpetrators denying the allegations, and then forwards notices to victims explaining that their cases have been closed. This is a farce. Without the resources and will to conduct independent investigations, the NHRC should get out of the business of entertaining individual complaints.
The NHRC has served its intended purpose of presenting a positive human rights story about India to the outside world. Commission members are feted at international conferences and UN events while their reports sit unread by Parliament and NHRC staff process complaints instead of investigating them.
We recognise that the NHRC alone cannot solve all of India’s human rights problems. However, reform must begin somewhere—and the NHRC had great potential to be a catalyst for even more comprehensive reform efforts. An opportunity to remake the Commission presented itself in 2006 with the amendment of the PHRA. But this opportunity was wasted. Unfortunately, there may not be many more opportunities for reform before the NHRC is completely delegitimised.
HRDC, 28 Feb 2007