3-9 November 2001
Economic and Political Weekly; Vol. XXXVI No. 44
by A. G. Noorani
Has the National Human Rights Commission (NHRC) made a significant impact on the state of human rights in India? Is it at all relevant to the Kashmiri who has to bear the brunt of systematic custodial deaths, encounters, disappearances and other forms of brutal repression. The South Asia Human Rights Documentation Centre has published a much-needed audit of the NHRC’s work.
A G Noorani
There is no institution which needs an audit and critical appraisal of its work more than does the National Human Rights Commission (NHRC). There is no organisation which is better qualified and equipped to undertake this task than the South Asia Human Rights Documentation Centre (SAHRDC). Its director and founder, Ravi Nair, is a scholar and activist who fought against heavy odds, including police attacks on its offices to bring it to its present status. It is internationally respected and enjoys special consultative status with the Economic and Social Council of the UN.
Publications of the SAHRDC are well received because they conform to international standards of scholarship. Ravi Nair is highly respected because he is not a publicity hunter. In this, both the organisation and its moving spirit provide a glaring contrast to some who masquerade as civil libertarians.
This publication* lives up to those high standards. Has the NHRC made any significant impact on the state of human rights in India? Is it at all relevant to the Kashmiri who has to bear the brunt of systematic custodial deaths, encounters, disappearances and other forms of brutal repression, not only from the paramilitary but particularly from the Special Operations Group of the state police and from the surrendered, renegade militants in the pay of the state and central governments. The answer to the second question can only be in a resounding negative.
It is significant that all the three chairmen of this body, who were chief justices of India, earned a deserved repute for an illiberal outlook on civil liberties: Ranganath Misra of the Delhi Riots Inquiry fame; M N Venkatachaliah of the Ayodhya fame (vide this writer’s article in The Statesman, January 18-20, 1995 entitled ‘CJI and Ayodhya’); second only to prime minister P V Narasimha Rao, this CJI was responsible for allowing the kar sevaks to proceed apace despite warnings from counsel including attorney-general Milon Banerjee. As for the present chairman justice (retd) J S Verma, he was the author of the report on the security aspects of Rajiv Gandhi’s tragic assassination, delivered the pathetic majority judgment in the Ayodhya case upholding the action of the criminals who demolished the Babri masjid, installing a ramshackle temple on the results of crime, legitimised the cry of Hindutva in notable election cases. On September 16 the NHRC directed the Karnataka government to pay a compensation of Rs 1.5 lakh to two persons who were illegally arrested, detained and tortured by the state police (The Hindu, September 17, 2001). One hopes this was not reported in the Kashmir press. It would be such a cruel reminder of their status as non-citizens. They have persistently complained of this treatment. The NHRC is not interested.
The SAHRDC’s study considers the NHRC’s entire set-up. It was set up by the Protection of Human Rights Act, 1993 not as a genuine monitor but to serve as an answer to annual criticisms before the UN Human Rights Commission. The BJP wanted it to replace the Minorities Commission. The inherent weaknesses of a body set up with such a motivation are becoming increasingly clear. The commission itself seems to go along with that objective. Hence, its stance on terrorism to the neglect of state terrorism and excesses by security forces.
In 1996, the Kerala High Court submitted a draft proposal for amendments to the NHRC’s procedural regulations after conducting a spot study of various sections of the NHRC’s Law Division. A year and a half later, McKinsey & Co, prepared a report highlighting what it found to be the commission’s main problem – a severe backlog of pending cases – and suggesting solutions. In May 1999, the Staff Inspection Unit (SIU) conducted a staff study of the commission, the first since its inception, at the request of the Ministry of Home Affairs. Few, if any, of the extensive recommendations made in these reports have been implemented.
In October 1999, after unprecedented access to the work of the NHRC’s Law Division over a period of three months, the SAHRDC privately conducted a comprehensive evaluation of its own and submitted its findings to the commission. “Having given the NHRC nearly two years to begin to rectify the problems it found, SAHRDC is now making its study public.” It is a brief assessment of the NHRC’s 1997-98 Annual Report, synopses of the three earlier external reports –, by the Kerala High Commission, McKinsey & Co and the Staff Inspection Unit – an analysis of the Ministry of Home Affairs Action Taken Memoranda and a reprint of the “Final report of a study into the procedural and substantive issues related to the management of the case load of the National Human Rights Commission of India” produced by SAHRDC. The Annual Reports are sadly deficient in imparting information, as the study shows.
It points out the flaws in the Annual Reports – sparse information, because of incomplete investigation. The case was ‘handled’, not concluded. It became a statistic. The study backs its comments with detailed analyses of important cases.
Worse still are cases of non-compliance with the NHRC’s orders. The Bijbehara case in Kashmir earned international notoriety; around 60 persons were killed by security forces. The NHRC took it up with great fanfare. The result merits full exposure as the study spares none. It records:
The NHRC, after reading press reports on the incidents, issued an order on November 1, 1993, directing that notices be issued to the secretaries in the Ministries of Defence and Home Affairs and to the Chief Secretary of the Government of the State of Jammu and Kashmir. The notices called on the officials to submit a detailed report to NHRC within two weeks of the date of the order. In a letter to the NHRC, dated November 13, 1993, the Ministry of Defence denied its involvement in the affair. In a letter to the Commission dated November 15, 1993, the Ministry of Home Affairs requested an extension of the time for submission of its report. This extension was granted by the NHRC, and the Ministry of Home Affairs was given until November 30, 1993 to make its submission. The submission of the Ministry of Home Affairs informed the NHRC that 37 persons had died and 73 others had been injured as a result of the firing in the incident. On December 22, 1993, the commission acknowledged receipt of the report of the Magisterial Inquiry and of the Staff Court of Inquiry (SCOI), which was conducted by the Border Security Force, against the officials and jawans involved in the incident.
On January 17, 1994, the commission made its recommendations and directed that they be communicated to the central government in the appropriate ministry for action to be taken. The recommendations were as follows:
(1) The loss of life cannot be adequately compensated in monetary terms. Yet in order to provide assistance to the kin of the deceased and those injured by gunshot, payment of Rs 50,000 should be made to each of the former, and Rs 25,000 to each of the latter. Other persons injured in the incident should receive payment of Rs 10,000 each. This recommendation of compensatory payments must not be advanced for any legal or related purpose in the proceedings that are now either pending or contemplated.
(2) Given the gravity of the occurrence in Bijbehara, a thorough review should be undertaken by government of the circumstance and conditions in which units of the Border Security Force are deployed and expected to operate in situations involving only civilian population.
In a letter dated November 12, 1996, “Shri A K Tandon, director general, Border Security Force informed the commission that a General Security Force Court (GSFC) trial was conducted in respect of the 12 BSF personnel involved in the said incident, but that confirmation of the trial was being withheld for the time being as additional ROE was to be conducted against sub-inspector Mahar on a charge of u/s 302 of the Ranbir Penal Code (RPC) as applicable in the state of Jammu and Kashmir.” Tandon also informed the Commission that the trial of sub-inspector Mahar Singh by GSFC was conducted and that the trial had been concluded on October 30, 1996 and the accused was found not guilty. The confirmation proceedings were said to be pending at that time.
Sixteen months later, in an order dated March 16, 1998, the Commission acknowledged receipt of the report from the Ministry of Home Affairs, but stated that, before taking any final view in the matter, it first wanted to review the proceedings on the issue. It directed that the records of the proceedings of the trial conducted by the SCOI, the proceedings of the trial held by the GSFC and the record of the administrative proceedings be summoned from the Ministry of Home Affairs.
The Ministry of Home Affairs did not honour this request. In a letter dated May 5, 1998, Mr Rakesh Hooja, joint secretary in the Ministry of Home Affairs “informed the Commission of the inability of the government of India to show records of GSFC to any authority other than those provided under the Border Security Force Act”. In response to the refusal to provide the documents requested, the Commission referred the matter for an expert opinion to Mr Rajeev Dhavan, senior advocate, and issued an order, dated August 20, 1998, that the opinion “[b]e brought to the notice of the Ministry of Home Affairs to request them to forward the record called for from them to the Commission in confidence for its perusal and necessary action without further delay”.
In an order dated January 11, 1999, the Commission recorded that the Ministry of Home Affairs had not forwarded these records and directed the issuance of a ‘conditional summons’ for the personal presence of the home secretary before the Commission on February 8, 1999 with the stipulation that “in case the requisite records were received in the Commission before the said date, the requirement of personal appearance would stand dispensed with”. Mr Sandeep Bagchee, joint secretary, Ministry of Home Affairs, responded stating that its position was the same: “as per the act, a report based on facts from BSF on the incident including the action on the delinquent persons as per the General Security Force Code (GSFC) has been sent to the Commission our letter of even number dated February 13, 1988”.
The Commission pleaded its case once more and, in an order dated February 8, 1999, the Commission directed the registry to communicate to the government that all the records relevant to this incident be preserved as the Commission intended to move the Supreme Court of India. Bringing the case before the Supreme Court, the commission requested that the court “issue a writ…to make available to the petitioner the relevant records of the court martials conducted in respect of the armed forced personnel involved in the said incident” and to “declare that the petitioner must have access to all such public documents that in its opinion are relevant to be perused to arrive at a just and fair determination of a complaint…”
After this long attempt by the Commission to compel compliance with its orders, the Supreme Court has still not issued its ruling on the matter. Significantly, the chairman of the Commission is a former Chief Justice of the Supreme Court. It is hard to understand the period of delay over the course of 1997 and why the NHRC has not seen fit to move the Supreme Court for expeditious disposal of the case, given the delay in satisfaction of its orders and the increased difficulties in reviewing and remedying the original situation as each month passes. The government officials’ poor excuses for failure to comply with the NHRC’s orders are tantamount to contempt of the institution’s proceedings.
The second case of non-compliance concerns the Chakmas and Hajong of Arunachal Pradesh. The state government did not comply even with the Supreme Court’s orders in the case lesson – in sensitive cases the NHRC does not matter.
In 1991, the United Nations organised an international workshop, which resulted in the formulation and adoption of the “Paris Principles” – a detailed set of guiding principles for establishing and maintaining strong and effective NHRIs. The Paris Principles were subsequently endorsed by both the UN Commission on Human Rights and the UN General Assembly.
“The Paris Principles outline four factors in establishing and measuring the independence of National Human Rights Institutions: independence through legal and operational autonomy; independence through financial autonomy; independence through appointment and dismissal procedures; and independence through pluralism of composition.” In light of these standards, the ‘independence’ of India’s National Human Rights Commission is examined in the SAHRDC’s study.
Incidentally the NHRC’s own recommendations made in the light of its experiences were not accepted – bar only one. A seven-member Advisory Committee headed by justice A M Ahmadi, former chief justice of India, was established to review the PHR Act, the NHRC’s charter and suggest amendments to it. The Committee toiled hard and thoroughly. It submitted a Draft Amendment Bill to the NHRC which sent it to the Home Ministry, which said, “the proposal received from the Commission is being examined”.
The SAHRDC Study’s comments on the NHRC’s stance on terrorism is noteworthy and deserve quotation in extenso:
The NHRC discusses at length the UN resolutions on terrorism. While terrorism must be addressed and condemned, the NHRC fails to point out that when the state agencies stood to the level of terrorists through behaviour such as arbitrary arrest and extrajudicial killing, the distinction between terrorism and state action blurs. In this context, the issue of state accountability becomes indispensable.
Distressingly, the NHRC report neglects to highlight this important issue of accountability. The NHRC provides little information on human rights abuses committed by security forces in volatile areas. The marked absence of any illustrative case from north-east India consisting of Assam, Mizoram, Tripura, Meghalaya, Arunachal Pradesh, Nagaland and Manipur in the Annual Report once again highlights the shortcomings of the National Human Rights Commission while dealing with complaints concerning the armed forces’ behaviour.
The government shows little signs of cooperation with the NHRC, as demonstrated by its lack of response to the NHRC’s writ petitions before the high court of Jammu and Kashmir, No 335/99 concerning non-production of records by the Ministry of Home Affairs in the Bijbehera case and Habeas Corpus Petition No 32/96 concerning the killing of Jalil Andrabi, a prominent human rights defender, by the Security Forces. In the telling words of the NHRC, “it is a matter of deep regret that the perpetrators have still not been brought to justice. The Commission considers this unacceptable. It urges greater seriousness of purpose in the effort to track down and bring to book the abductors and killers of Jalil Andrabi.” It is impossible to imagine that the government of India cannot track down the officer responsible for the killing of Jalil Andrabi. Despite such impunity on the part of the government, the NHRC remains helpless.
The NHRC’s Annual Report states, “Data received from the Army indicates that, whereas it was necessary for it to investigate 942 allegations of human rights violations by its personnel in Jammu and Kashmir and north-eastern states during the year 1997-98, during the year 1998-99 it needed to investigate 144 such allegations. While 109 Army personnel of various ranks received punishments ranging from reprimands to dismissal in the preceding year, in the current year three members of the Army were sentenced to rigorous imprisonment, of whom one was also subsequently dismissed.”
This generalised method of reporting does not promote transparency. Unless the names, ranks and specific type of punishment given for specific allegations of human rights violations are made public and put on the website of the NHRC, it is unlikely that such action will have any deterrent effect. Moreover, NHRC’s report does not explain as to whether the Army has provided detailed information as to these allegations and whether proportionate punishment has been awarded. The fact that NHRC had to approach the Supreme Court to compel production of documents by the Ministry of Home Affairs in the case of the Bijbehera killings does not evoke confidence. NHRC’s report is also distinctly silent on the human rights abuses committed by the paramilitary forces such as Border Security Force, Central Reserve Police Force, Rashtriya Rifles, Assam Rifles and others.
It is unlikely that the NHRC will behave differently in the future in this area. Come to think of it, will the Indian Bar and media have been as indifferent to the killing of a Supreme Court advocate by an army man as it has been to the murder of Jalil Andrabi in 1995, six years ago?
As for the rest, the study recommends greater transparency in the work of the NHRC and better communication with NGOs and members of the public, especially with the complainants.