Adding Insult to Injury: The State of India’s Human Rights Commissions

The resignation of the Chair of the Jammu and Kashmir State Human Rights Commission at the end of July raises disturbing questions about the future of human rights bodies in India. Justice Mir lamented that the state government was not serious about the Commission, recommendations were routinely ignored, making his continuance in office serve no useful purpose. In March, the Jammu and Kashmir Human Rights Commission in its annual report, presented to the state legislature, had accused government officials of contradicting its recommendations and starting fresh inquiries at their end even after receiving recommendations for action. The Commission also drew attention to the failure of the government to provide it adequate funds and infrastructure.

The manner in which the Jammu and Kashmir Human Rights Commission has been undermined rings true to the experiences of all of India’s national and state human rights commissions. Established under the Protection of Human Rights Act 1993, these commissions are often show cased as proof of official commitment to the international human rights regime and the rights enshrined in the Indian Constitution. A closer look reveals far too many shortcomings in the working of the commissions to make them effective guarantors of human rights protection. Firstly, the central and state governments need to accord commission decisions the weightiness their statutory basis demands. Action on the commissions’ recommendations is often dispensed with, partly implemented or deferred for so long that it becomes meaningless to the complainant or victim. Guidelines of the National Human Rights Commission (NHRC) are routinely flouted by officials, and tabling of the commissions’ annual reports in the legislature, along-with a memorandum of action taken by the government, is often delayed by bureaucratic indifference.

Most of the state commissions are functioning with less than the prescribed number of members, which considerably impedes the processing of complaints.

Even when appointments are made, the process lends itself to political patronage rather than the merit of a candidate being tested by the criteria laid down in law. Frustrated by their attempts to engage with the commissions, human rights defenders and social activists have consistently warned that these institutions are in grave danger of becoming post-retirement retreats for politically savvy judges and bureaucrats, arguably wedded more to the perks of office than to human rights values.

Legislators too, have contributed to the weakening of the commissions. Annual reports when laid in the house are hurriedly passed, though they should really be discussed threadbare. The Government is rarely held to account by the Opposition for failing to act on the commissions’ recommendations. Moreover, insufficient budgetary allocations are bogging down the commissions, leaving meagre funds to pursue projects and programme.

Further, the law itself limits the commissions’ potential in significant ways. For instance, state human rights commissions are prevented from taking up cases involving human rights violations by the security forces of the Union. Even the National Human Rights Commission (NHRC) can only seek a report from the Central Government and make suitable recommendations - it cannot summon witnesses and the necessary documents to get to the bottom of a case. These are serious omissions, as a large number of abuses take place in situations of insurgency and internal disturbances where armed and paramilitary forces are deployed. People living in these areas require enhanced, not reduced, protection of their rights.

The NHRC has consistently highlighted deficiencies in the Protection of Human Rights Act. In 1998, a high level committee headed by a former Chief Justice of India, AM Ahmadi, was constituted to suggest changes in the law. The committee made many useful suggestions, including the need to grant greater financial independence to the commissions. Seven years later, most of these recommendations have been ignored in the Protection of Human Rights (Amendment) Bill 2006, which was passed by the Indian Parliament in August.

It is time for the Government to deliver on its constitutional commitment to uphold human rights values by bringing about the necessary changes in law and policy to allow the commissions to realise their true potential. Some suggestions in this respect are:

Strengthening the Protection of Human Rights Act 1993: Though the Protection of Human Rights Amendment Bill 2006 makes an attempt, albeit feeble, to enhance the effectiveness of the commissions - most notably by removal of the requirement to inform the Government before visiting prisons and detention facilities - the law needs much more teeth. For one, the bar in the Protection of Human Rights Act 1993 that prevents the commissions from instituting complaints after the lapse of one year since the reported violation must be removed. Equally, violations by armed forces of the Union need to be brought within the ambit of the commissions’ powers of inquiry. Incorporation of sound provisions from other Commonwealth jurisdictions in the Act can enhance the effectiveness of the commissions. Examples include providing punishments for those who impede the work of commissions; making it the legal duty of the Government to provide adequate funds to the commissions and fill vacancies within a specified period; obliging the commissions to draw up a state or national action plan on human rights; and requiring the commissions’ annual reports to be tabled in the legislature within three months of the ending of each financial year.

Building Good Precedents: Any good law can fail if those charged with implementing it don’t hold fast to its spirit. Law reform derives sustenance from the development of good precedents. A government’s commitment to public welfare is demonstrated by its willingness to set and abide by democratically robust precedents. One example is to always appoint human rights commissioners on the basis of demonstrable commitment and track record of human rights protection, rather than on superficial fulfilment of the criteria laid down in law. Similarly, the moral strength of the commissions should be reason enough for government officials to take swift action on recommendations. If for some reason, it is untenable for the Government to implement a recommendation, then the matter should be submitted to the High Court but this must happen only in the rarest of rare cases. Law courts themselves need to view the commissions as complementary institutions and allies in discharging their constitutional obligations.

It is a sad commentary on the Government of India’s commitment to public aspirations if even after 13 years of the enactment of the Protection of Human Rights Act, the commissions still face ‘teething troubles’. Human rights commissions must become more than just mere instruments to seek votes in the name of rights protection or ornaments to show case to the international community. They must belong to and act on behalf of the People of India. (Source: Published in The Tribune, India 3 September 2006)