Excerpts from the Global Alliance of National Human Rights Institutes’ (GANHRI’s) Report and Recommendations of the United Nations’ Sub-Committee on Accreditation (SCA), which has decided that further consideration of the re-accreditation application of the National Human Rights Commission of India (NHRCI) to be deferred to its second session of 2017 in November:
Composition and pluralism
In accordance with section 3(2) of the Act, the NHRCI shall consist of: a) a Chairperson who has been a Chief Justice of the Supreme Court; b) one member who has been a Judge of the Supreme Court; c) one member who has been Chief Justice of the High Court; d) two members amongst persons having knowledge of, or practical experience in, matters relating to human rights.
The SCA reiterates its previous concerns from October 2006 and May 2011, and remains of the view that the requirement that the Chair be a former Chief Justice of the Supreme Court and the majority of members be recruited from the senior judiciary severely restricts the potential pool of candidates, particularly as it relates to the representation of women in the governing body of the NHRCI.
The SCA acknowledges that the justification for these requirements is based on the NHRCI’s quasi-judicial function. However, it notes that:
– the quasi-judicial function is but one of the ten (10) functions enumerated in section 12 of the Act;
– section 3(2) also provides for the appointment of two (2) members amongst persons having knowledge of, or practical experience in, matters relating to human rights, who are not required to be chosen from the judiciary; and
– no women have been appointed to any of the positions on the governing body of the NHRCI since 2004.
The SCA further acknowledges the NHRCI’s position that the presence of “deemed members” from the National Commissions addressing caste, women’s rights, minorities, scheduled tribes, and children’s rights – two (2) of whom are women – on the statutory full commission contributes to the pluralism of the NHRCI. However, the SCA notes that the NHRCI reported that the member from the National Commission on scheduled castes rarely attends full statutory commission meetings and that the SCA has received information from civil society organizations indicating that the other deemed members similarly rarely attend meetings where decisions on the focus, priorities and core business of the NHRCI’s nonjudicial functions are made. Accordingly, the SCA remains of the view that this method of ensuring pluralism is insufficient.
Finally, the SCA notes that the NHRCI reports that, of its 468 staff, 92 (20%) are women. The SCA is accordingly of the view that the NHRC has not taken the necessary steps to ensure pluralism of its institution through its staff complement.
The SCA notes there are diverse models for ensuring the requirement of pluralism in the composition of the National Human Rights Institutes (NHRI) as set out in the Paris Principles. For example:
a) Members of the decision-making body represent different segments of society as referred to in the Paris Principles. Criteria for membership of the decision-making body should be legislatively established, be made publicly available and subject to consultation with all stakeholders, including civil society. Criteria that may unduly narrow and restrict the diversity and plurality of the composition of the NHRI’s membership should be avoided;
b) Pluralism through the appointment procedures of the governing body of the NHRIs, for example, where diverse societal groups suggest or recommend candidates;
c) Pluralism through procedures enabling effective cooperation with diverse societal groups, for example advisory committees, networks, consultations or public forums; or
d) Pluralism through staff that are representative of the diverse segments of society. This is particularly relevant for single member Institutions, such as an Ombudsperson.
The SCA encourages NHRC to ensure pluralism, including appropriate gender balance, within the NHRI. The SCA refers to Paris Principles B.1 and B.2 and to General Observations 1.7 on ‘Ensuring pluralism of the NHRI’ and 2.4 on ‘Recruitment and retention of NHRI staff’.
Selection and appointment
In accordance with section 4 of the Act, the Chairperson and other members of the NHRCI are appointed by the President based on the recommendation of a Committee consisting of the Prime Minister, the Speaker of the House of the People, the Minister in-charge of the Ministry of Human Affairs in the government of India, the Leader of the Opposition in the House of the People, the Leader of the Opposition in the Council of States, and the Deputy Chairperson of the Council of States.
The SCA is of the view that the selection process currently enshrined in the Act is not sufficiently broad and transparent. In particular, it does not:
– require the advertisement of vacancies;
– establish clear and uniform criteria upon which all parties assess the merit of eligible applicants; and
– specify the process for achieving broad consultation and/or participation in the application, screening, selection and appointment process.
It is critically important to ensure the formalization of a clear, transparent and participatory selection and appointment process for an NHRI’s decision-making body in relevant legislation, regulations or binding administrative guidelines, as appropriate. A process that promotes merit-based selection and ensures pluralism is necessary to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The SCA encourages the NHRCI to advocate for the formalization and application of a process that includes requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups and educational qualifications;
c) Promote broad consultation and / or participation in the application, screening, selection and appointment process;
d) Assess applicants on the basis of pre-determined, objective and publicly-available criteria; and
e) Select members to serve in their individual capacity rather than on behalf of the organization they represent.
The appointment of the Secretary General and the Director of Investigations from Central Government
Section 11 of the Act requires that the Central Government second to the NHRCI a civil servant with the rank of Secretary to take the role of Secretary General of the Commission, and a police officer of the rank of Director General of Police or above to take the post of Director (Investigations).
In October 2006 and May 2011, the SCA emphasized that a fundamental requirement of the Paris Principles is that an NHRI is, and is perceived to be, able to operate independent of government interference. Where an NHRI’s staff members are seconded from the public service, and in particular where this includes those at the highest level in the NHRI, it brings into question its capacity to function independently.
Also in May 2011, the SCA expressed its concern about the practice of having police officers and former police officers involved in the investigation of human rights violations, particularly in circumstances where the alleged perpetrators are the police. It noted that this practice has adverse implications for the actual and perceived independence of the NHRCI.
The SCA acknowledges the NHRCI’s position that:
– As concerns the Secretary General, the fact that this individual is seconded from the senior levels in the civil service means that they have wide knowledge of government functioning and standing among various levels of government. However, the SCA notes that, in the past five (5) years, the position has been held by a variety of people and has been vacant for a substantial period of time.
– As concerns the Director General (Investigation) and the practice of using former police officers to investigate complaints, these individuals know how the system works and, as a result, are unable to unearth truth in cases where others could not. However, for victims of abuses by police, there is a real or perceived conflict of interest, and this may impact the ability of such persons to access human rights justice.
Notwithstanding the justifications provided, the SCA remains concerned that these practices have a real impact on the perceived independence of the NHRCI. The SCA therefore recommends that:
– the Secretary General be recruited through an open, merit-based selection process; and
– the NHRCI consider policy options to address the perceived independence issue created by having former police officers investigate complaints, for example, by providing for civilian oversight of these activities.
Political representatives on NHRIs
The NHRCI reports that the Chairperson of the National Commission for Scheduled Castes is a Member of Parliament, and that this individual has voting rights in the full statutory commission.
The SCA notes that the Paris Principles require an NHRI to be independent from government in its structure, composition, decision-making and method of operation. It must be constituted and empowered to consider and determine the strategic priorities and activities of the NHRI based solely on its determination of the human rights priorities in the country, free from political interference.
For these reasons, government representatives and members of parliament should not be members of, nor participate in, the decision-making organs of an NHRI. Their membership of, and participation in, the decision-making body of the NHRI has the potential to impact on the real and perceived independence of the NHRI.
The SCA recognizes that it is important to maintain effective working relationships, and where relevant, to consult with government. However, this should not be achieved through the participation of government representatives in the decision-making body of the NHRI.
Where government representatives or members of parliament, or representatives of government agencies, are included in the decision-making body, the NHRI’s legislation should clearly indicate that such persons participate only in an advisory capacity. In order to further promote independence in decision-making, and avoid conflicts of interest, an NHRI’s rules of procedure should establish practices to ensure that such persons are unable to inappropriately influence decision-making by, for example, excluding them from attending parts of the meeting where final deliberations and strategic decisions are made.
The participation of government representatives or members of parliament, or representatives of government agencies, should be restricted to those whose roles and functions are of direct relevance to the mandate and functions of the NHRI, and whose advice and cooperation may assist the NHRI in fulfilling its mandate. In addition, the number of such representatives should be limited and should not exceed the number of other members of the NHRI’s governing body.
Cooperation with other human rights bodies
The NHRCI highlights the existence of Core/Expert Groups as the means by which it complies with the Paris Principles’ requirement for pluralism and engagement with civil society and other human rights defenders. However, the SCA notes that it has received information from civil society organizations that these mechanisms are not functioning effectively as a means of engagement and cooperation between the NHRCI and civil society. The SCA notes that this was raised as an issue of concern during the SCA’s May 2011 review of the NHRCI.
The SCA again highlights that regular and constructive engagement with all relevant stakeholders is essential for NHRIs to effectively fulfil their mandates. It encourages the NHRCI to take steps to facilitate increased engagement and cooperation with all civil society organizations.
Access to NHRC’s complaints process
The SCA has received information from civil society groups alleging that the NHRCI’s complaint handling functions suffer from extended delays. The SCA notes with concern that the NHRCI confirmed to have a substantial backlog of 40,000 cases.
In fulfilling its complaint handling mandate, the NHRI should ensure that complaints are dealt with fairly, transparently, efficiently, expeditiously, and with consistency. In order to do so, a NHRI should:
- ensure that its facilities, staff, and its practices and procedures, facilitate access by those who allege their rights have been violated and their representatives; and
- ensure that its complaint handling procedures are contained in written guidelines, and that these are publicly available.
The SCA encourages the NHRCI to handle complaints in timely manner and permit all individuals, regardless of their legal status, to access to its complaint process.
The SCA refers to Paris Principle D(c) and to its General Observation 2.10 on ‘The quasijudicial competence of NHRIs’.
The most recent annual report of the NHRCI publicly available is for 2011-2012. The SCA notes that, in accordance with section 20(2) the Act, an annual report cannot be made public until it is tabled in Parliament by the government, and that this cannot be done until the government has prepared a response for follow-up and recommendations made by the NHRCI in the report. The SCA acknowledges that the NHRCI reports that its annual reports for 2012-2013, 2013-2014, and 2014-2015 have been submitted to the government, but as the government has not developed its responses to the recommendations in those reports, they have not been tabled in Parliament or made public.
The SCA notes that this was raised as an issue of concern during the SCA’s May 2011 review of the NHRCI.
The SCA considers it important that the enabling laws of an NHRI establish a process whereby its reports are required to be widely circulated, discussed and considered by the legislature. It again notes that the SCA finds it difficult to assess the effectiveness of an NHRI and its compliance with the Paris Principles in the absence of a current annual report.
The SCA acknowledges that the NHRCI reports that it has mitigated this limitation in its ability to publicize current annual reports by publishing other reports on thematic issues or the state of human rights generally. The SCA encourages the NHRCI to seek a solution to this issue, and to continue to advocate for its annual reports to be tabled in Parliament and made public as soon as possible.
Download full report HERE