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NHRC – A Tooth-Less Tiger : Detailed Analysis

NHRC – Powers and Functions

What is the NHRC?

The National Human Rights Commission (NHRC) is a statutory body that has been constituted under the provisions of the Protection of Human Rights Act, 1993. (PHRA)

Its function is to protect and promote human rights i.e. rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants (human rights as defined in PHRA, 1993).

Who are its members?

The NHRC consists of the following members:

  • Chairperson who is a retired Chief Justice of India
  • Two members who are sitting/retired judge of Supreme Court or sitting/retired Chief Justice of a High Court
  • Two members who are persons who have knowledge and expertise in the field of human rights.
  • Chairperson of National Commission for SCs (ex-officio member)
  • Chairperson of National Commission for STs (ex-officio member)
  • Chairperson of National Commission for Women (ex-officio member)
  • Chairperson of National Commission for Minorities (ex-officio member)

The chairman and members are appointed by the President of India on the recommendation of a 6 member committee consisting of the Prime Minister, Speaker of the Lok Sabha, Deputy Chairman of the Rajya Sabha, leaders of opposition in both the houses of parliament and the Union Home Minister.

Why is the NHRC called a toothless tiger?

The Supreme Court of India has recently reiterated NHRC’s own observations that it is a toothless tiger. This was in light of the issue of extrajudicial killings in Manipur. The remark was made due to the following lacunae in its functioning and composition:

Functions

1. The NHRC is a recommendatory body and does not have powers to prosecute a human rights violation on its own or see that its recommendations are carried out. It can only make recommendations for corrective actions and punishments to the executive and judiciary respectively.

2. The NHRC is limited by its ability to investigate human rights violations that have occurred up to a year before and not earlier. A genuine grievance that exists in the earlier time period is thus ignored. This is quite an obstacle in seeking justice in a country as big and diverse both in areal as well as population terms.

3. The NHRC cannot directly investigate alleged human rights violations by the armed forces but can only seek a report from the Government on the matter.

4. The PHRA, 1993 does not extend to the state of Jammu and Kashmir thus ending all responsibility for the NHRC for human rights violation in one of the most disturbed regions in the country.

Functionaries

1. Vacancies in the NHRC and Chairperson of various Commissions that have representations on the NHRC are often not filled for long duration.

2. The PHRA also does not require that the judicial members appointed have a proven track record in human rights.

3. The Global Alliance of National Human Rights Institutions (GANHRI) has observed the lack of women appointed to the NHRC due to the restrictive pool of candidates from the higher judiciary, limiting its ability to tackle gender sensitive issues in an effective manner. Moreover, the vacancies to the NHRC are not suitably advertised.

4. The GANHRI has also noted the involvement of political representatives in the NHRC (Chairperson of National Commission of SCs is also a Member of Parliament). This reduces independence of the NHRC.

5. The appointments to the NHRC are often those of retired bureaucrats, even Chairpersons to National Commissions for SCs/STs/Women and Minorities are often members who have served in the civil service. This has led to the NHRC being regarded as an extension of the Government and not an autonomous agency.

6. The NHRC relies on staff that is on deputation from other Government departments. This staff often lacks sensitivity and expertise in human rights issues leading to poorly investigated cases.

Funds

1. Paucity of funds has led to limited expenditure on spreading human rights literacy and awareness.

2. The lack of funds has also led to poor infrastructural support for investigative purposes.

Government Support

1. Delays in tabling of the Annual Reports of the NHRC before the Parliament by the Government of India. Only those reports that have been tabled before the Parliament are made public. The last such report available is for the year 2011-12. The Government has not formulated its responses to the reports since then. This limits accountability of the Executive and efficacy of the NHRC.

2. India is yet to ratify and sign several key conventions that will increase the accountability of the state and empower the NHRC to address other issues. These include:

• Convention Against Torture (signed in 1997, not ratified)

• Convention on the Protection of Rights of All Migrant Workers (not signed)

• Convention for the Protection of All Persons from Enforced Disappearance (signed in 2007, not ratified)

3. The quality of compliance reports submitted to the NHRC by the state governments is often sub-standard and the submissions are irregular and delayed.

What steps can be taken to empower the NHRC?

The NHRC can be strengthened by taking the following measures:

1. Appointments to the NHRC need to be made from a wider pool of candidates. The recommendations of the GANHRI can be considered to relax the criteria for

appointment of members from the higher judiciary. There is also a need to advertise the vacancies widely and fill them promptly without any delays.

2. The expert members criteria needs clear definition and well-defined benchmarks so as to resolve the allegation that it is a post-retirement security for bureaucrats.

3. Political representatives should be strictly limited in their engagement as members of the NHRC so as to ensure independence.

4. There is a need for the NHRC to constitute and maintain an independent cadre of officials that will be able to develop expertise in human rights violation investigation.

5. The PHRA, 1993 needs to be amended to include mandatory time frame for action taken and response formulation by the Government at the Centre and in the states on NHRC recommendations.

6. The NHRC should be granted contempt powers so as to ensure effective implementation of its recommendations.

7. Human rights violations before the one year time frame can be taken on a case by case basis so as to ensure justice and redressal to all.

8. Ratification of Key conventions and enactment of enabling laws as mentioned in the issues above will help strengthen NHRC’s powers.

9. There is a need for a greater role of NHRC in alleged human rights violations by the armed forces. Independent staff that is sensitive about the right balance between human rights and security will enable the NHRC to fulfil its mandate with regards to the armed forces.

10. The NHRC needs to ensure better co-ordination with civil society organisations

(CSOs) to implement its functions -especially of sourcing complaints as well as human rights literacy.

11. Better infrastructural support in terms of more offices and easier accessibility via ICT so as to register complaints and follow up by the aggrieved.

Conclusion

A Human Rights Commission is an essential bulwark against arbitrary action by State or other agencies in a modern day democracy. It serves as an independent platform to not only limit the exercise of powers by the Government but also to guide it on its approach to rights of humans. Also, the NHRC’s reach is limited and the purpose of human rights defeated if the State HRCs too aren’t reformed so as to enable them to conduct their duties effectively. The definition of human rights changes with transformations in society and polity through time. Today, the challenges to human rights are numerous including those of refugees fleeing from persecution (for e.g. Rohingya) as well as environmental refugees. It is thus crucial that the NHRC function properly so as to secure adherence to human rights so that each human can enjoy the opportunity to grow and realise their maximum potential.

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