IMPLICITY

National and State Human Rights Institutions in India- Need for Revaluation

Posted in Uncategorized by Nehaa on November 5, 2009

This post is with reference to the functioning of the National Human Rights Institutions[1] in India, and more specifically, Karnataka.

 

I attended a meeting (as a part of my internship with SICHREM) on 04-11-2009 of organisations and individuals who work with these National and State Human Rights Institutions. The agenda was essentially for everyone to share their experiences, both positive and negative, and express any concerns they might have with reference to the functioning of these institutions. What follows is an account of what I learnt at the Meeting, and serious issues that were raised and need to be addressed.

 

The formation of various human rights institutions (NHRC etc.) in India has its origins in the Vienna Declaration of the UN in 1993, with the primary aim of these institutions being that they were the delivery bodies for implementing protection and promotion mechanisms in furtherance of human rights in their respective nations.

 

The guiding principles for the functioning of National Human Rights Institutions have been adopted by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) in Geneva, on June 2009. These General Observations, based on the Paris Principles, highlight crucial values that must be adhered to at the time of the formation and working of NHRIs world over. In accordance with these Observations, establishment of national institutions MUST be in a legal or constitutional text, and creation by an instrument of the Executive is not adequate to ensure permanency and independence. The requirements of maintaining plurality and independence in the composition of the NHRIs have to be met, but the same can be achieved in different ways, either by the members of the Governing Body representing different sections of society, through the appointment process and consultations and recommendations from various social groups etc. However, the ICC stresses on the importance of the meaningful participation of women in the NHRIs as an indicator of pluralism. Further, the appointment process of members of the NHRI is required to be transparent, with broad advertising of vacancies, maximising the potential candidates from a wide range of societal groups, and selecting members to serve in their own individual capacity and nor as a part of the organization they might represent; and government representatives on governing or advisory bodies of National Institutions do not have decision making or voting capacity. Simply put, the government cannot have voting rights in an institution they are to be held accountable to. In order to further maintain independence, the NHRIs must have the power to appoint their own staff members, and the dismissal of any member of any NHRI must be made in strict conformity with the substantive and procedural law in force at the time. Another important Observation is that of accreditation, a status which is granted by the ICC. If it appears that the circumstances of the NHRI have changed in any way so as to affect its compliance with the Paris principles, the NHRI would come under the review of the Sub Committee of the ICC, and if the Committee is not satisfied with the submissions of the NHRI at the end of the period of review, the NHRI stands to lose its accreditation status.

 

In view of these aforesaid Observations, it clearly appears that every NHRI across nations is expected to adhere to basic principles of natural justice, manifestations of which are seen in the form of transparency, accountability, accessibility, cooperation, effectiveness, plurality and diversity etc. In the event that these institutions do not adhere to these principles, they risk being downgraded by the ICC, which was seen in the case of Sri Lanka’s NHRI. A similar disaster nearly embraced Malaysia, where however, the government woke up one day before the matter was to come up before the ICC for consideration and passed an ordinance bringing about the required change. The matter is due for consideration and review by the ICC again, later this month. Given the fact that these NHRIs prepare their own reports to the ICC, a pertinent question now arises about the existence of a mechanism to place a check on and review the activities of these institutions within their respective countries. In this situation, the role of NGOs acquires a position of critical importance. Civil and political organizations and human rights groups and activists have the authority, to prepare shadow reports, (that is, reports parallel to those prepared by NHRIs) about the functioning of these NHRIs and their adherence to the aforesaid principles. In the event that the ICC finds merit in these shadow reports and is not satisfied with the response of the NHRIs at the end of a specified period, the NHRI is likely to be downgraded.

 

With this background, the concerns raised about the functioning of the NHRIs in India may be addressed, as India is up for review in 2011, giving us about a year to bring about any changes we might feel necessary in the functioning of these institutions.

 

An observation made by a UN High Commissioner when she was on a visit to India is critical in examining India’s adherence to the principle of plurality. She remarked that in the largest democracy in the world, a country where others can learn so much from, it was shameful that there was no female member in the National Human Rights Commission. A member of an organization called Peoples Watch[2] stated at the meeting that this remark was quite flippantly dismissed by members of the NHRC, when they stated that the National Commission for Women had women members, so what was the need to include them in the NHRC. Evidently, the NCW is a forum for women and the NHRC is a forum for men. Incidentally, these very members are unaware of the existence of the ICC and the fact that every nation gets accreditation from this very body, and also stands to be downgraded. (On a different note, these members of the NHRC are also unaware of the existence of the Guidelines of the NHRC on Encounters)[3]

 

Further concerns pertaining to the jurisdiction of each of these institutions, and what was the adequate forum to voice grievances also came to the fore. There have been instances where a matter was referred to the NHRC, which in turn referred it to the State Human Rights Commission, which in turn referred it back to the NHRC, causing a deadlock, and the case has remained suspended for the past two years.

 

The lacunae in the functioning of these NHRIs is highlighted by the fact that provisions of basic laws such as the IPC and the Cr.PC, forming the basis of the entire criminal justice system have not been made available on the website of the NHRC. Activists stated that websites were available only to a select group of the population, and that these laws should be made available to the general public at large in any and every manner possible. These laws are the touchstone for human rights education and protection in any country. Further issues brought to the fore included inadequacy in the definition of human rights, leading to abuse and mismanagement of this area of law. In addition to defining human rights, each NHRI must have a fixed role identified, in order to bring about clarity and reduce scope for redundancy and confusion and ensure delivery of maximum justice.

 

Each institution is supposedly governed by a set of rules and guidelines, but if these are even in existence is a different matter altogether. A case in point is the Karnataka State Human Rights Commission, where the members are unaware of their powers and their duties, and claim that the rules have not been published yet. Repeated questioning of the government yields the same response that they are being finalised. As a result, members are unaware of the role they are required to play, and the decisions they are entitled to take, thus turning to NGOs and asking them what has to be done in a certain situation. To make matters worse, serious issues pertaining to conflict of interest of members of this SHRC have been raised, as members of the SHRC are also members of the Child Welfare Committee and associated with other NGOs, raising questions about their credibility and the transparency and impartiality of the appointment process.

 

What is more startling than procedural hassles, is the laid back and often callous attitude of certain members of National and State Human Rights Institutions. Certain erstwhile members of the Karnataka SHRC have been involved in getting crucial cases dismissed from the High Court, with false evidence being introduced. A few others encourage a ‘compromise’ between the victim of abuse and the perpetrators of the crime, in cases involving rape and domestic violence.

 

With the number of cases being reported to these institutions increasing by the day, the alarming number of fallacies that they present needs to be tackled at the earliest, because these tend to act as a deterrent to individuals and organizations reporting incidents of human rights violations, as they claim to be losing faith in the system, as a result of repeated encounters with nonchalant attitudes and procedural tangles.

 

NHRIs are very powerful quasi-judicial bodies, where misuse of power can have serious and far-reaching repercussions on the lives of citizens of this country. These institutions are meant to provide a ray of hope to victims of atrocities, and provide a faster mechanism to access and administer justice than conventional courts, plagued with delay and corruption and logistical concerns of their own. To the outside world, we still present our NHRIs as a matter of pride for the nation, bringing them up in most speeches to the UN on the matter of human rights. Within the nation however, these institutions are beginning to lose their credibility. Supposedly, there are about two hundred cases pending against the NHRC in the Delhi High Court alone, questioning the merit of leading institution for the protection of human rights in a country, where there are approximately 150 statutory human rights institutions.

 

Suggestions for improvement included an overhauling of the appointment process, with reservations being made for members to be de facto directly appointed by the Governor or the President (at the State and National levels respectively) with no political influence. Further, greater enforcement of accountability principles and transparency in the working of the Commissions were felt to be the need of the hour. Disclosure of grants, budgetary allocations and expenditure must be adhered to strictly, and RTI petitions must be attended to in their entirety.[4] Allowing these institutions to be open to the scrutiny of certain eminent NGOs in the nation, in order to assess the functioning of these institutions and bring about relevant changes from time to time based on the changing nature of the social fabric, and also to bring about cooperation between these institutions and the individuals and organizations who work closely with them, will have a positive impact on the functioning of National and State Human Rights Institutions.

 

One can only hope and persuade the ‘powers that be’ to institutionalise a few of these changes that are the need of the hour, as change with the backing of law is the most influential and emphatic of all. Until then, justice stands suspended, with the fate of thousands hanging in balance.

 

 


[1]Hereinafter referred to as NHRIs

[2] Peoples Watch is a human rights organization

[3] This was also put forth by the same member of Peoples Watch.

[4] This was felt in light of the growing trend of these institutions to dismiss RTI petitions, or, if a petition asked 5 questions, only the first one was answered, and so on.

Advertisements

One Response

Subscribe to comments with RSS.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: