The Asia–Pacific regional national human rights institutions network is represented by India’s National Human Rights Commission on the management committee of the Global Alliance of National Human Rights Institutions. This, despite the membership of the commission to the alliance having recently been deferred for a year.
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THE Sub-Committee of Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI), at its meeting from March 20 to 24, deferred the re-accreditation application of the National Human Rights Commission of India (NHRC) for twelve months (or two sessions). This was done pursuant to Article 15 of the GANHRI Statute.
The SCA considered applications for re-accreditation from the national human rights institutions (NHRIs) of India and eight other countries.
Shh! Silence does not beget transparency
The silence of the NHRC, the Union government, most Indian non-government organisations (NGOs), the overwhelming genuflecting Indian news media, the Asia–Pacific Forum (the Asia–Pacific regional NHRI network), and the GANHRI has been curious, to say the least.
Pursuant to Article 14.1 of the GANHRI Statute, the SCA took a decision regarding the re-accreditation of the NHRIs of India, and two other countries.
The NHRC surprisingly enjoyed ‘A’ status at GANHRI. This, in spite of the same recommendations in 2017. The process of re-accreditation is done every five years.
The NHRC “can challenge a recommendation of the SCA by submitting a letter addressed to the GANHRI chairperson and copied to the GANHRI secretariat within … 28 … days of the date of communication of the recommendation. This would have ended recently. At the end of this … 28 … day period, the GANHRI secretariat will forward to bureau members, as soon as practicable, the recommendations of the SCA. If the applicant NHRI has not challenged the recommendation, it shall be deemed accepted by the [GANHRI] bureau.”
Interestingly, the NHRC is presently a member of the GANHRI bureau, which is the committee of management established under the GANHRI Statute. Will it recuse itself for the bureau meeting?
There is no information as to whether the NHRC has preferred any challenge as of date.
Lack of pluralism reiterated
The SCA, in its deliberations on India, “welcome[d] the amendment of the Protection of Human Rights Act of 1993 (PHRA) to include the requirement under Section 3(2)(d) that three members of the NHRC have knowledge of or practical experience in human rights, at least of one of whom must be a woman, as a means of addressing its previous concerns around [the lack of] pluralism.” At the same time, the SCA noted that the amendment does not adequately address its recommendations from its November 2017 accreditation review.
The SCA noted that the amendment to the Protection of Human Rights Act, 1993 does not adequately address its recommendations from its November 2017 accreditation review.
The SCA decided to defer consideration of the NHRC on grounds enumerated below. The SCA encouraged the NHRC to take the actions necessary to address these issues and to provide further information and evidence, as required.
Involvement of police officers in investigations
“Section 11 of the PHRA requires that the Central government makes available to the NHRC a police officer of the rank of director general of the police or above, and other such officers as necessary, for the efficient performance of the NHRC. The NHRC reports that police officers covering its investigative activities are needed for its effective operation.
“The SCA reiterates that a fundamental requirement of the Paris Principles (that is, the Principles relating to the Status of National Institutions) is that an NHRI is, and is perceived to be, able to operate independent of government interference. Where an NHRI’s members are seconded from the public service and in particular where this includes those at the highest level in the NHRI, it raises questions about its capacity to fully function independently. The SCA notes that this concern was raised with the NHRC at its last review in November 2017 and has not been addressed.
“The SCA acknowledges the position of the NHRC that these individuals help in the strengthening of its investigation mechanism.
“However, the SCA reemphasises that there may be a real or perceived conflict of interest in having police officers engaged in the investigation of human rights violations, particularly those committed by the police, and this may impact on their ability to conduct impartial investigations as well as the ability of victims to access human rights justice.
“The SCA recommends that the NHRC advocate for amendments to the PHRA and amend its investigative structure to remove the capacity for government to second police officers to act as investigative staff, ensuring that the NHRC can independently appoint suitably qualified staff to such positions.
“The SCA refers to Paris Principles B1, B.2 and B.3 and to its General Observation 2.4 on ‘recruitment and retention of NHRI staff’.”
Composition and pluralism
“[Section] 3 of the PHRA states that the NHRC shall consist of the chairperson who shall be a former chief justice or judge of the Supreme Court, a commissioner who shall be a current or a former judge of the Supreme Court, a commissioner who shall be a current or former chief justice of a high Court, three commissioners who shall have knowledge of or practical experience in human rights (of whom one shall be a woman) and the chairpersons of seven national commissions. The NHRC informed the SCA that the members of these seven commissions are not full members but ‘deemed members’ who complement the NHRC work in the execution of their individual functions.
“The SCA notes that the current composition of the NHRC is incomplete, with three of the six positions vacant. Moreover, these three positions are those members required to have knowledge of or practical experience in human rights, including the only designated position that must be occupied by a woman. There is currently no woman in the leadership body of the NHRC.
“The SCA acknowledges with appreciation the steps that the NHRC has taken to advocate for amendments to the PHRA to address its previous concerns regarding gender balance in the NHRC’s membership and staff. However, the SCA does not consider these amendments to be sufficient to meet the pluralism requirements of the Paris Principles. In this respect, the SCA recalls its previous assessment of the prospective amendment to the PHRA proposed by the NHRC during its previous review in November 2017 that ‘only having one member who is a woman does not represent appropriate gender balance’. The SCA further notes that, of the 393 staff positions listed by the NHRC as its staff component, only 95 are held by women.
“The SCA is of the view that a diverse decision-making and staff body facilitates the NHRI’s appreciation of and capacity to engage on all human rights issues affecting the society in which it operates and promotes the accessibility of the NHRI to all citizens.
“The SCA recommends that the NHRC advocates for the completion of the appointment process to fill the remaining vacancies in its leadership body, and for further amendments to the PHRA, to ensure a pluralistic balance in its composition and staff, in particular by ensuring that the diversity of Indian society is represented including, but not limited to religious or ethnic minorities.
“The SCA refers to Paris Principle B.1 and to its General Observation 1.7 on ‘Ensuring pluralism of the NHRI’.”
Selection and appointment
“In accordance with Section 4 of the Act, the chairperson and other members of the NHRC are appointed by the President of India 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 [Home] 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 acknowledges the position of the NHRC, that the members of the selection committee are elected officials accountable to the people of India and include voices from diverse political perspectives. However, the SCA does not consider this to sufficiently promote broad consultation or participation in the selection process, nor maximise the number of candidates from a wide range of groups.
“The SCA notes that the selection committee does not provide for the formal involvement of civil society organisations in the process.
“The SCA reiterates the concern raised in its November 2017 review of the NHRC that the selection process currently enshrined in the PHRA is not sufficiently broad and transparent. In particular, it does not:
– require the advertisement of vacancies, nor
– 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 formalisation 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 recommends that the NHRC advocates for the formalization and application of a process
that includes requirements to:
a) Publicise vacancies broadly;
b) Maximise 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.
“The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and
appointment of the decision-making body of NHRIs’.”
The appointment of the Secretary-General
“Section 11 of the PHRA requires that the Central government makes available to the NHRI a civil servant [of] the rank of secretary to the Government to take the role of secretary general of the commission.
“In its previous review of the NHRC in November 2017, the SCA emphasised 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 members are seconded from the public service and in particular where this includes those at the highest level in the NHRI, it raises question (sic) about its capacity to function fully independently’.
The SCA recommend[ed] that the NHRC advocate for amendments to the PHRA and amend its investigative structure to remove the capacity for government to second police officers to act as investigative staff, ensuring that the NHRC can independently appoint suitably qualified staff to such positions.
“The SCA acknowledges the NHRC position that this arrangement ensures the necessary expertise for the role of the secretary general. The SCA further acknowledges the report of the NHRC that it selects the secretary general from a list of names identified by the government and when selected, works under the NHRC’s full control.
“The SCA continues to be of the view that, notwithstanding the justifications provided; these practices have a real impact on the perceived independence of the NHRI. Accordingly, the SCA recommends that the NHRC advocates for amendments to the PHRA to remove the capacity for the government to make a senior civil servant available for the position of secretary general, to empower the NHRC to independently recruit candidates for the position.
“The SCA refers to Paris Principle B.2 and to its General Observation 2.4 on ‘recruitment and retention of NHRI staff’.”
Cooperation with other human rights bodies
“The SCA received a third-party submission indicating that the relationship between the NHRC and civil society is not effective or constructive, particularly with respect to collaboration through its core group on [NGOs] and human rights defenders (‘HRDs’).
“The SCA acknowledges the response of the NHRC that it collaborates with civil society including conducting open hearings along with HRDs and NGOs. The NHRC reports that it has now reconstituted its Core Group of NGOs and HRDs.
“The SCA reiterates that regular and constructive engagement with all relevant stakeholders is essential for NHRIs to effectively fulfil their mandates. The SCA recommends that the NHRC takes additional steps to ensure constructive engagement and cooperation with civil society and HRDs, and that this should include regular modes of collaboration outside of the Core/Expert Groups.
“The SCA refers to Paris Principle C(g) and to its General Observation 1.5 on ‘Cooperation with other human rights bodies’.”
The members of the NHRC’s reconstituted core group on HRDs and NGOs evoke little confidence as to their ability to represent Indian civil society.
Addressing human rights issues
“The SCA received a third-party submission raising concerns about the failure of the NHRC to exercise its mandate in relation to reviewing laws regarding civil liberties and fundamental rights. This includes on the Foreign Contribution (Regulation) Act 2010, Citizenship (Amendment) Act 2019, Unlawful Activities (Prevention) Act 1967 (sic)
“The third-party submission expressed further concerns that the NHRC has not taken sufficient action in protecting the rights of marginalised groups including religious minorities. The submission also expresses concerns about the high number of complaints apparently dismissed by the NHRC at the very first stage.
“The SCA acknowledges that NHRC reports that it has considered all cases of human rights violations, including cases on HRDs. However, the SCA notes that the NHRC did not provide sufficient information with regards to how it implements its full mandate to monitor, promote, and protect the rights of everyone including religious minorities and HRDs.
“The SCA recommends that the NHRC addresses all violations of human rights and to ensure effective follow-up so that the state makes the necessary changes to ensure that human rights are clearly protected. The SCA further recommends that the NHRC ensures that its positions on these issues are made publicly available, as this will contribute to the strengthening of the credibility and accessibility of the institution for all people in India.
A third-party submission [to the SCA] expressed concerns that the NHRC has not taken sufficient action in protecting the rights of marginalised groups including religious minorities.
“An NHRI’s mandate should be interpreted in a broad and purposive manner to promote a progressive definition of human rights, which includes all rights set out in international, regional, and domestic instruments. NHRIs are expected to promote and ensure respect for all human rights, democratic principles, and the strengthening of the rule of law in all circumstances, and without exception. Where serious violations of human rights are imminent, NHRIs are expected to conduct themselves with vigilance and independence.
“The SCA refers to Paris Principles A.1, A.2, and A.3, and to its General Observation 1.2 ‘human rights mandate’.”
How is NHRC in the GANHRI bureau when its accreditation has been deferred?
What is perplexing is that Justice Arun Kumar Mishra, chairperson of the NHRC and another representative of the APF, were elected as GANHRI bureau members during the APF’s general assembly held in September last year. Their election was ratified during the GANHRI general assembly held on March 15 this year, a few days before the accreditation of the NHRC was deferred.
The SCA is presently composed of one NHRI representative from each region. The current SCA members are Palestine for Asia–Pacific (Chair), South Africa for Africa, Great Britain for Europe, and Honduras for the Americas.
The APF still lists the NHRC as a member institution. The APF is represented by the NHRC in the bureau of the GANHRI. However, the membership of the NHRC has been deferred for a year!
Is this puzzlement for real, or is this a brain teaser?