A Commission in limbo

The future of the National Human Rights Commission, which has done commendable work in recent years, appears uncertain as the vacancies in the Commission remain unfilled.

in New Delhi

JUSTICE J.S. Verma retired as the Chairperson of the National Human Rights Commission (NHRC) on January 18, as per a provision in the Protection of Human Rights Act, 1993 that the NHRC chairperson has to retire at the age of 70. A former Chief Justice of India, Justice Verma had assumed office on November 4, 1999. His was an eventful tenure during which the ambit of the NHRC considerably expanded, and the Commission read more powers into the Act.

The performance of a national institution has to be assessed in terms of not only its successes in achieving its stated objectives, but also the constraints within which it has worked. A pertinent question here is whether the NHRC as the requisite powers to fulfil its functions as a national institution with a statutory basis. Compared to the institutions of similar nature around the world, it has a relatively heavy case-load; that is, it handles a larger number of complaints of violation of human rights, or of negligence in preventing such violation. The Commission received 306,975 complaints between October 1993 and March 31, 2002, of which 295,072 were taken up for consideration. And dealing with complaints is only one of the 10 major functions assigned to the Commission under Section 12 of the Act. Its ambit ranges from reviewing safeguards for the protection of human rights and performing such other functions as it may consider necessary for the promotion of human rights.

However, year after year the NHRC has been complaining of a lack of response from the Union government to its pleas to amend the law so as to realise its objective of "better protection of human rights and for matters connected therewith or incidental thereto".

One of the remedies it has been seeking relates to the definition of "armed forces". The NHRC wants the definition to include only the "naval, military and air forces", and not the paramilitary forces, such as the Border Security Force and the Central Reserve Police Force. The proposal is necessitated by the fact that complaints of human rights violation by these forces have been increasing and that Section 19 of the Act permits the Commission only to seek a report from or make recommendations to the government with regard to complaints against the armed forces, and make the government's response public. Even though the objective of the Act is to keep the armed forces out of public controversy, the Commission is of the opinion that such a provision has led to instances of a lack of accountability, and indeed, of transparency.

The Commission has made it clear to the government that the report it seeks under Section 19 must contain all facts and occurrences relating to the alleged violation of human rights mentioned in the complaint and that it must not merely be confined to the findings and conclusions reached by the Central government on the basis of facts that are not disclosed to the Commission. The Commission has done to ensure that Section 19 serves the Act's principal objects and reasons as constructively as possible.

Other amendments propsed by the Commission include provisions to broaden the definition of "international covenants" in Section 2; reduce the delays in tabling before Parliament the Annual Reports of the Commission together with the Memorandum of Action Taken by the government; remove jurisdictional restrictions in Section 36 (1) on the NHRC's over-arching ability to oversee issues of human rights violation and their remedies; allow the Commission to take cognisance of a case even after the expiry of one year from the date of the alleged incident, if there are good and sufficient reasons to do so, and to entrust the Commission with certain powers of judicial superintendence to ensure that uniform principles are adopted in cases that raise similar issues.

These proposals were annexed to the NHRC's Annual Report for 1999-2000, and conveyed to the Central government after the Commission considered the recommendations of the advisory committee appointed by it. The committee was headed by former Chief Justice of India A.M. Ahmadi. According to its member Virendra Dayal, the NHRC has noted with regret that these proposals are pending consideration with the government for long as it found them "very sensitive with far-reaching consequences".

THE severe constraints on its powers notwithstanding, the NHRC's work during the last three years has been commendable. First, by focusing suo motu on human rights of those affected by natural and man-made calamities, the NHRC has demonstrated its keenness to promote and protect economic and social rights. After the devastating cyclone that struck Orissa in October 1999, the Commission intervened in order to ensure that the rights of the affected people, particularly the most vulnerable section, were protected. It monitored the relief and rehabilitation work of the State government. Similar was its intervention in Gujarat in the aftermath of a devastating earthquake in January 2001. In the words of Dayal, the Commission's on issues of good governance and the needs of the most vulnerable sections of society helped ensure that an appropriate perspective imbued with human rights values was maintained in dispensing assistance to the affected population.

The NHRC's intervention in the aftermath of the Sabarmati Express tragedy on February 27, 2002 at Godhra in Gujarat was unprecedented. In its proceedings on the issue prepared after field visits to examine the human rights situation following the widely reported anti-minorities pogrom carried out by the Hindu Right-wing organisations, the NHRC concluded that the State government had completely failed to control the persistent violation of people's right to life, liberty, equality and dignity. The Commission said that it was deeply disturbed by persisting press reports that charge-sheets filed in respect of certain grave incidents lacked credibility that in some instances the victims were depicted as provocateurs; that First Information Reports (FIRs) on atrocities against women were recorded neither promptly nor accurately; that compensation for damaged property was often set at unreasonably low levels; that some of the victims were told that they could return to their homes only if they dropped or altered the complaints that they had lodged; and that some were pressured to leave the relief camps without safe alternatives.

Despite the Commission's strong strictures against the State government for its role during and after the Gujarat riots, opinions differed on whether the NHRC could have done more to secure justice to the victims. As its proceedings reveal, its concerns helped to force Gujarat Chief Minister Narendra Modi to postpone a series of Gaurav Yatras that he had planned to take out all over the State from July 4, 2002, which it was feared could re-ignite communal violence. During the Commission's visit to the State from March 19 to 22, 2002, Justice Verma had appealed for the cancellation of `Asthi-kalash Yatra' that the Vishwa Hindu Parishad had planned in memory of the victims of the Godhra tragedy. The Commission felt that the yatra, scheduled from March 27, 2002 had the potential to endanger the lives and propertes of people, thereby leading to the violation of their human rights. Modi had to intervene to have that programme withdrawn, the proceedings reveal. The Commission continues to monitor whether its recommendations to the State and Central governments on securing justice to victims are being followed.

THE Commission has found it important to link the issue of providing adequate food, education and health to that of human rights. At a workshop organised in April 2000, it emphasised the need to end the problem of iron and iodine deficiency and maternal anaemia, which adversely affects the right to health of women, and the mental and physical health of the unborn and also infants; It held a major Regional Consultation on Public Health and Human Rights in April 2001, dealing inter alia with the questions of people's access to health care, tobacco control and nutrition. It also convened a National Consultation on HIV/AIDS and human rights in November 2001. In an article published in Journal of the National Human Rights Commission, Dayal says that on each of these matters, the Commission has pursued its recommendations with the government at the highest level.

The issue of discrimination as a cause of human rights violation was examined in great detail, especially in relation to gender- and caste-based discrimination. For the first time, the Commission examined the proceedings and recommendations of certain Treaty bodies before which India had presented its reports. It also made recommendations about the steps that the government should take. During Justice Verma's tenure, the Commission also analysed the human rights dimensions of Census 2001, and commented on the fall in the sex ratio in certain States. It called for policies, programmes and laws to reduce the disparities in respect of access to education, nutrition, and health care that existed between men and women.

The NHRC made ample progress in redressing individual complaints. In several cases, it issued directions to institution concerned to pay immediate interim relief to victims of human rights violations or to their family members and to institute departmental proceedings against or prosecute public servants responsible for such violation. It also issued guidelines to public servants on how they must view and handle matters relating to "encounter" deaths, arrests and detention, use of polygraph tests and so on. In the Commission's experience, its directions, recommendations and guidelines have by and large been observed by the agencies concerned, and this has strengthened the Commission's institutional legitimacy. At times, as its intervention in the controversy on the enactment of Prevention Of Terrorism Act (POTA) revealed, its role has been useful in educating the public.

In the course of fulfilling its statutory objectives, the Commission under Justice Verma came in conflict with the Union government on several occasions. This, observers say, explains the perceived lack of enthusiasm on the government's part in filling the vacancies in the Commission in time. As per the law, the Chairperson and the other members of the Commission are to be appointed by a committee consisting of the Prime Minister, the Leaders of the Opposition in both Houses of Parliament, the Speaker of the Lok Sabha, the Deputy Chairperson of the Rajya Sabha and the Home Minister.

Justice K. Ramaswamy and Sudarshan Agarwal retired as Members of the Commission on July 12, 2002 and June 19, 2001 respectively. The selection committee has not filled these vacancies.

The Commission has a strength of five members, including the Chairperson.

While the Act prescribes that only retired Chief Justices of India are eligible to be appointed as Chairpersons, it does not envisage a role for the incumbent Chairperson either to initiate the process of filling the vacancies in the Commission, or select a successor.