ON THE INTERNATIONAL ARENA

In 2016, the Session of the Sub-Committee on Accreditation (SCA) of the UN-mandated Global Alliance of National Human Rights Institutions deferred the re-accreditation of the NHRC for further consideration to its second session of 2017. The NHRC did retain its “A” status of accreditation in 2017, but here are some concerns that the SCA had about the composition and functioning of the NHRC in 2016:

The chairperson of the NHRC has to be a retired Chief Justice of the Supreme Court. One member has to be a present or retired judge of the Supreme Court and one a present or retired chief justice of a

High Court. Two members are appointed from people having domain knowledge of, or practical experience in matters related to human rights. The SCA believed this restricts the pool of potential candidates.

The chairperson and other members of the NHRC are appointed by the President based on the recommendations of a committee that includes the Prime Minister and the leader of opposition in the Lok Sabha. The SCA felt this selection process was not broad or transparent.

It had advised the NHRC to take steps to “to facilitate increased engagement and cooperation with all civil society organisations”. community or group of refugees. Soon after its creation, the NHRC in 1994 had taken up the issue of safety of the Chakma community in Arunchal Prades and in a letter to the state government had stated that it was “the obligation of that government to accord protection to the person and property of the members of th two communities (Chakma and Hajong refugees – Hindus and Buddhists of the erstwhile East Pakistan) and to ensure that their human rights were not violated”. In 1995 the NHRC also petitioned the Supreme Court (SC) for the protection of the rights of these communities, following which the apex Court in 1996 directed the Arunachal Pradesh government to ensure the same. The NHRC’s intervention had gone a long way in protecting the rights of the Chakmas in the north-east.

“The Commission also visits different states to organise open hearings to take cognisance of the problems of people there,” says former NHRC chairperson Justice KG Balakrishnan. While some of the open hearings are issue-based – the problem of bonded labour, for example – others address every kind of human rights violation. The Commission has also gone beyond the physical violation of human rights to protect the economic, social and cultural rights of people. Laxmidhar Mishra, another former NHRC special rapporteur, remembers being assigned to look into the extreme poverty, starvation and malnutrition in Kalahandi, Bolangir and Koraput regions of Odisha. Another of his assignments was to study the malnutrition-related deaths of children in 15 tribal districts of Maharashtra and submit recommendations for improvement in their living conditions. Mishra says that most of his recommendations in this case were accepted by the states. But that is not always the case.

ON SLIPPERY GROUND

“The NHRC chairperson has himself admitted that the NHRC is a ‘toothless tiger’ with no authority to ensure that its recommendations were implemented,”

says Shailesh Rai, director, law and policy, Amnesty International India.

The recommendations of the NHRC are not binding. Lal admits that while in over 90 per cent of cases financial compensation recommended by the NHRC is paid to the victims by the concerned authorities, the Commission has had very little success in getting the guilty punished. “The NHRC may, however, move the SC if its recommendations are not accepted,” says Lal.

One example of this is the Gujarat riots of 2002. “One of the important recommendations by the NHRC was that in five cases – including the Best Bakery case and the Bilkis Bano case – there must be a CBI investigation. But the state government did not accept this and said that the state and state-appointed panels will carry out the investigation. NHRC, along with some civil society groups, took the matter to the SC and later a Special Investigation Team (SIT) was constituted to investigate some of the serious cases,” recalls Lal.

The Commission also has limited powers over the defence forces. “Unlike in most other countries, the NHRC has the power of a civil court. It can conduct investigations into any allegation of human rights violation, summon any person during the course of the investigation and reach conclusions based on it,” says Justice Balakrishnan. But this is not so in the case of the armed forces, where on receiving a complaint or while taking suo motu cognisance of a violation, the Commission can only ask for a report from the concerned department and make recommendations based on it.

( p ) – as Jammu and Kashmir and Manipur – where allegations of violations are common. “In the Manipur fake encounter case, where 1528 people were extra judicially killed, the NHRC did not say a word for years,” says senior advocate Colin Gonsalves. However, the NHRC may not be in a position to intervene in such cases. In September 2016, Attorney General Mukul Rohatgi, on behalf of the Centre, opposed the NHRC’s offer to probe over 1500 cases of alleged extra-judicial killings in Manipur and said even the top court cannot “transplant” any powers on the panel. In , the court had said that the alleged udicial killings by the Army and ur police, over a period of 12 years en 2000 and 2012, required a thorrobe. But in February this year, the satisfied with the investigations of a med by the CBI to look into some of es, directed the NHRC to depute eople to associate with the SIT to out investigation in 17 of 42 incidents ch cases have been registered. e NHRC has been of the view that the A should be repealed,” the Commisad said in response to Henys comin 2012. “However, the SC has held e Act is constitutional.” Now, the feels it is for the Centre to decide er AFSPA should be continued. gger issue is the very nature of forn of the NHRC – by an Act of Parliament and where the chairperson and the members of the Commission are appointed by the President, on the recommendations of a committee that includes the Prime Minister – which has raised doubts in the minds of many about its ability to function independently. “The NHRC is not a government body. It is an autonomous body, set up by the government in tune with its obligations under the Protection of Human Rights Act, 1993,” says Justice Dattu.

THE ROAD AHEAD

But as he himself points out “The SC has dwelt at length upon the constraints of the NHRC...” The SC has also said that the provisions of the PHR Act make it an obligation on part of the Centre to “provide adequate officers and staff so that the NHRC can perform its functions efficiently.”

One of the biggest successes for the NHRC in the last 25 years has perhaps been its ability to raise awareness about the need for human rights protection in the country and to initiate a dialogue on the same. “In future, the NHRC’s attention is also going to be towards new emerging concerns like business and human rights, environmental impact on human rights and LGBT rights,” says Justice Dattu. The journey won’t be easy, as it will doubtless involve pushing the government and the legislation in a direction it may shy away from. The Commission, if it wants to dispense its duty sincerely, may have to first fight for its own rights to protect those of others.