The South Asian Human Rights Documentation Centre (SAHRDC) has prepared a report, to be submitted to the Global Alliance of National Human Rights Institutions (GANHRI) to be considered for the purpose of accreditation of the National Human Rights Commission (NHRC) of India that is due in November 2017. GANHRI coordinates the relationship between national human rights institutions (NHRIs) and the United Nations human rights system, and is unique as the only non-UN body whose internal accreditation system, based on compliance with the 1993 Paris Principles, grants access to UN committees. The purpose of the report is to bring to the attention of GANHRI the failures of NHRC and its working. Excerpts:
NHRC was assessed by the Sub-Committee on Accreditation (SCA) of the GANHRI in November 2016 and the report of the same published in January 2017. The SCA decided to defer NHRC’s application for accreditation to its second session in November 2017. The SCA in its January 2017 report, stated specific recommendations to NHRC and Government of India concerning composition and pluralism, selection and appointment of members, appointment of senior staff (secondment from government), political representation, engagement with civil society, annual reports and complaints handling.
India is ostensibly the biggest democracy of the world but the national human rights institution of this democracy is just a titular body with no real autonomy or power. Coming under the purview of the Ministry of Human Rights, this apex institution is for all purposes just another wing of the government cloaked as a quasi-judicial body. The Commission, since its establishment has intervened using the powers given to it under the Protection of Human Rights Act, 1993 (hereinafter referred to as “PHRA”) and succeeded in convincing the government to act on rare occasions and they have become rarer in recent past. The Supreme Court also recognised the NHRC as a toothless tiger.
In the past five years, there is almost no data available on the NHRC’s website of any case in which it either acted in the capacity of amicus curaie to ensure justice or took up suo motu cognizance and follow the case through. In most cases, reports are asked to be submitted, compensation is recommended based on prima facie evidence and there are no independent investigations or action taken against perpetrators. NHRC has not conducted studies or published reports on well known cases of human rights violations and has made no significant contributions when these cases have come for hearing in the Supreme Court or High Courts. Keeping its distance from all controversial subjects, the institution has failed to achieve its mandate of being a protector of human rights in the country.
From subjects like the method of appointments and the autonomy of the institution to the recent human rights cases and the role of NHRC in them, the report will be a comprehensive evaluation of whether the institution has managed to achieve the goal that was it was established for. The report will also evaluate the working of NHRC in consonance with the Paris Principles and the rules of accreditation and point out where they are being flouted.
Independence is a fundamental pillar of the Paris Principles and is necessary in order to effectively promote and protect human rights. The Paris Principles has an entire section titled “Composition and guarantees of independence and pluralism” which are to be guiding principles behind any national human right institution (NHRI) to ensure its autonomy and that the institution can fulfil its duty without any political influence.
The SCA in its accreditation reports of NHRC, in January 2017, stated that “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.”
The SCA further stated that for appointments, NHRC should:
- Publicise vacancies broadly;
- Maximise the number of potential candidates from a wide range of societal groups and educational qualifications;
- Promote broad consultation and / or participation in the application, screening, selection and appointment process;
- Assess applicants on the basis of pre-determined, objective and publicly-available criteria; and Select members to serve in their individual capacity rather than on behalf of the organization they represent.
Despite repeated recommendations made by the SCA, the recent appointments of Ms. Jyotika Kalra and earlier of Mr. Avinash Rai Khanna as NHRC members, were not held in a transparent and consultative process. The Government of India did not advertise the vacancy, did not spell out the criteria of assessment and made these appointments in a very secretive manner though the selection committee. It is to be noted that the representatives from the ruling government are in majority in the selection committee as the post of the Leader of Opposition in the Lower House is vacant since May 2014. The Government of India has yet again failed to make the selection broad based and transparent, which would have led to consideration of a wide-ranging pool of desirable candidates from various segments of the society – academicians, social scientists, jurists, etc.
The lack of independence of the Commission is also witnessed in the composition of its members and staff. As the AiNNI shadow report highlights, the PHRA has rigid criteria for membership to the Commission, that prioritize perceptions of prestige over competence, passion, or experience in the field of human rights. Section 3(2) of the PHRA requires that three of the five members of a human rights commission must be former judges but does not specify whether these judges should have a proven record of human rights activism or expertise or qualifications in the area.
Section 11 of the PHRA relates to the staffing of the NHRC. As per the General Observations of the SCA, adopted by the GANHRI Bureau in March, 2017, where the members and staff of NHRIs are representative of a society’s social, ethnic, religious and geographic diversity, the public are more likely to have confidence that the NHRI will understand and be more responsive to its specific needs. However, the PHRA, 1993 does not provide any breakdown of staff which indicates adequate minority, gender or disabled population representation and thus, the NHRC does not have fair and equal means of representation in terms of gender, religious minority groups and disabled populations. The GANHRI sub-committee report has criticized the current selection process in the NHRC and stated that of its 468 staff, only 92 (20%) were women.
More so, as stated above in Section 11 of the PHRA, the Government is responsible for staffing the Commission and the staff members are largely deputed temporarily to the NHRC from different government departments.
Needless to say, the NHRC also employs police officers to investigate complaints, which creates a real or perceived conflict of interest in cases of abuse committed by police and impacts the ability of the victims to access justice. These police officers are on deputation to the NHRC and are nor permanent employees of the NHRC. As such, their primary loyalty is to their parent police departments. What is even more worrying is the large number of Intelligence Bureau staff deputed to the NHRC. These officers are not answerable to anyone and have no expertise in the field of human rights.
Though the PHRA stipulates that the Commission may appoint such other “administrative, technical and scientific staff” as it may consider necessary, its choices are limited because the Government determines the salaries of all staff members. There is no statutory requirement to include as staff members, academics, representatives of NGOs or other organizations or members of civil society that have significantly contributed towards enhancement of human rights. Many social and human rights activists have the knowledge and practical experience of contemporary trends in the human rights movement and can greatly contribute towards the working of the Commission.
Download full report HERE