September 2001 | india-seminar.com
DURING the ’90s, following both national and international criticism of India’s lack of institutional mechanisms for the protection of human rights in the country, the central government enacted the Protection of Human Rights Act 1993 (PHRA). One central pillar of this act was the creation of the National Human Rights Commission of India (NHRC). However, the NHRC that it created lacked a specific structure or mandate.
The South Asia Human Rights Documentation Center (SAHRDC), a New Delhi-based NGO has recently issued a report on the NHRC and its impact on the human rights situation of the country. The report highlights the fundamental weakness arising from the fact that this body was created solely for political reasons rather than with a sincere attachment to the promotion and protection of human rights.
The study provides an analysis of the political and institutional framework that surrounds the NHRC. Relations between the government and the NHRC are metaphorically compared to a ‘volleyball game’. As a player in this game, the government does not have much respect for the NHRC. Recommendations from the NHRC to the government receive scant regard. This lack of respect or cooperation with the NHRC highlights its crucial lack of administrative independence and institutional legitimacy.
The SAHRDC publication provides a crucial comparison between existing international standards regarding National Human Rights Institutions (NHRIs) and their inclusion, or lack of inclusion, within the NHRC statute. In 1991, an international workshop organised by the United Nations resulted in the adoption of guidelines known as the ‘Paris Principles’. These principles set out the standards for establishing and maintaining strong and effective NHRIs. Following these, it is clear that the central principle determining the effectiveness of such human rights bodies will be the degree of independence they enjoy vis-a-vis governments.
Based on these international standards, SAHRDC examines the independence of the NHRC using four criteria; independence through legal and operational autonomy; independence through financial autonomy; independence of appointment and dismissal procedures; and independence through pluralism of composition. Judged on these four criteria, the NHRC is shown to be far from respecting international standards. The 1993 PHRA and the independence and impartiality of the commission have to be strengthened if the NHRC wants to accede to the status of a functioning NHRI.
A central purpose of SAHRDC’s work was to invite the NHRC itself to correct and give answers to the lacunae highlighted in the report. The report followed a thorough enquiry by SAHRDC into the work of the commission’s law division, and it was initially submitted to the NHRC in October 1999. However, after two years of inaction on the part of the NHRC and a lack of response to the findings of the report, SAHRDC decided to publish it.
Prior to SAHRDC’s report, only three attempts had been made to encourage the NHRC to evolve into an effective body. In 1996, the Kerala High Court submitted a draft proposal for amendments of NHRC’s procedural regulations for dealing with the complaints received and the suo motu actions taken by the Commission. In 1997, McKinsey and Company Inc. provided a report called ‘Preparing for a fresh start’ which proposed a three-step solution to the growing backlog of pending cases. Finally, in 1999, at the request of the Ministry of Home Affairs, the Staff Inspection Unit (SIU) issued a study on the staffing of the NHRC. Overall, very few of the recommendations made in those reports have been implemented. SAHRDC’s report also points out that the NHRC is not only deficient in implementing such external recommendations, it does not implement its own internal recommendations either. In this sense this report is the first to offer a comprehensive analysis of the NHRC with a particular focus on the reporting mechanism.
A great emphasis is given to the NHRC annual reports. In those reports the commission has on several occasions called for revision of the PHRA, but the Home Ministry has failed to put into effect such recommendations. Besides the emphasis on institutional problems, NHRC has repeatedly issued recommendations regarding the major problem of police brutality. Several proposals have been issued for the reform of police forces, the prison system and other aspects of the criminal justice system that do not conform to fundamental human rights standards. However, based on the annual report 1998-1999, SAHRDC points out that the NHRC reports have neglected to highlight the important issue of accountability. Whereas at the international level a clear consensus exists on the fundamental importance of accountability for human rights violations, especially in the areas of terrorism and insurgency, the NHRC reports provide little information on violations committed by the security forces in those areas.
The North Eastern states of India, for example, are not mentioned. This is due to the fact that the NHRC cannot directly intervene in the human rights violations committed by the armed forces. However, as SAHRDC points out, the commission should push to give itself more credibility by not remaining silent on this issue. In addition, when reports on human rights violations by military personnel are made, the method of reporting does not promote transparency. Generally speaking it appears that the NHRC remains helpless in the fight for accountability in this area, mainly due to lack of cooperation from the government but also due to the functioning of the commission itself.
After analysing in depth the different Memoranda of Action Taken by the Ministry of Home Affairs and the NHRC annual reports, SAHRDC finally gives its own perspective on and recommendations to the NHRC. It divides its list of proposals into 12 main areas, all of which are sub-divided to identify the problem and to offer a solution.
The first fundamental problem deals with the NHRC’s lack of infrastructure to fulfil its tasks. SAHRDC provides some very precise technical recommendations showing various possible ways of enabling the commission to gain in efficiency and independence. The report highlights that the NHRC not only lacks independence but also lacks more basic facilities such as computers and filing space.
SAHRDC also invites the NHRC to fully embrace its role as a human rights body and to push for the promotion and development of a human rights culture in the country. In this sense the commission should fulfil the goal that is clearly provided for in the PHRA. Finally, this publication identifies the general lack of cooperation and communication between the NHRC and other bodies that could be partners – whether NGOs, medical personnel or magistrates.
It is hoped that this report will be given more consideration than its predecessors, and that this time the NHRC will listen to and implement the suggestions that are made. The fundamental message of this publication is that it is crucial for India that such a human rights institution is able do its job effectively, and that this would certainly be the first step towards a future based on respect for human values.
Jeremie Gilbert
Source: http://www.india-seminar.com/2002/512/512%20books.htm