PUCL Bulletin,
February 2003
Undermining
the NHRC
-- By Rajindar Sachar
The
Ansal Plaza Incident has pitch forked the National Human Rights Commission
(NHRC) into the centre of uncalled for controversy. Its critics have seized
the opportunity to attack the Commission's jurisdiction - some have even
gone to the extent of calling it a National Commission for Terrorists.
This is slander. Such criticism goes against the very core of our Constitution
which enshrines the fundamental rights to life.
It may be sobering especially for young critics to inform themselves of
the compelling international pressure which forced the Central Government
to legislate the Protection of Human Rights Act, 1993, notwithstanding
the reservations of the executive and the bureaucracy.
In a background note on the imperative need for setting up the NHRC, Government
of India itself emphasised "that National and International organisations
in this field have been highlighting alleged violations of Human Rights
by various Government functionaries. There is a growing feeling that the
Government is not serious about such violations and excesses and bringing
the guilty persons to book. Against this background, any impression of
Government's lack of seriousness on the issue of Human Rights is a matter
of serious concern and needs to be dispelled."
Notwithstanding the above, the Government of India and State Governments
of all political hues continue to be indifferent to remedying the deficiencies
in the NHRC's working. To improve its functioning, the then Chairperson
of the NHRC, Justice Venkatachaliah, constituted a Committee of some of
us under the Chairmanship of the former Chief Justice of India, Ahmadi.
Based on the Committee's report, the Commission sent its recommendations
to the Ministry of Home Affairs on March 7, 2002. The NHRC considers these
proposed amendments absolutely essential if its purpose of safeguarding
human rights is to be served. In the present Act, the Armed Forces have
been defined to include all the security agencies, including the BSF and
the CRPF. Section 19 permits the Commission only to send reports to the
Centre with regard to the Armed Forces; it cannot on its own take any
action.
This
is a big drawback considering that most of the Human Rights violations
are done by these security agencies. The recommendations, therefore, suggest
that Armed Forces should mean only the Army, the Navy and the Air Force
thus striking a balance between the felt need to keep the Armed Forces
outside public controversy and the people rights (though some of us would
want to include the Armed Forces too within the Commission's jurisdiction).
It may be noted that the present provision excluding paramilitary forces
is the subject of adverse comment, which affects the NHRC's credibility
and calls into question the Government's commitment to human rights.
At present, the only qualification for the two members of the public to
be appointed to the Commission is that they should have knowledge or practical
experience in matters relating to human rights. This is too vague. The
amendment suggests that they should be persons who are working or had
worked in the field of human rights so as to make certain that the composition
of the NHRC shall ensure that the Commission reflects the pluralist character
of society. Another important amendment suggested is that the chairperson
who is at present kept out of the selection of the members be included
in the selection committee.
Section 11 is sought to be amended to provide that the staff for the NHRC
be made available with its concurrence, to stress its autonomy. The present
provision that the Commission can visit a jail only after intimation to
the State Government is also sought to be deleted. Power is sought to
be given to the Commission to recommend to the Government for grant of
interim relief to a victim during the pendency of the inquiry, where there
is a prima facie ) case for giving relief. At present, Section 19 only
requires the Central Government to inform the Commission of the action
taken on its report. In order to given more teeth to NHRC's report, it
is proposed that if the Government does not accept the recommendations,
it shall communicate the reasons for its inability within three months
and that the Commission shall consider the same and make final recommendations.
The annual reports of the Commission are to be laid before Parliament.
But Parliament has unfortunately not yet even discussed the report submitted
for period ended March 2000. As the Commission can publish its report
only after it has been discussed in Parliament, it is suggested that the
Government shall within three months from the date of report cause it
to be laid before Parliament with the action taken on the recommendations.
And where such a report is not laid before Parliament within that period
it shall be open for the Commission to publish it. Shockingly, even after
a lapse of two years, the Government continues to maintain a studied silence
and the work of the Commission continues to suffer.
The Commission consists of Chairperson who is a retired Chief Justice
of India and four members - a former judge of the Supreme Court, a former
Chief Justice of a High Court and two persons having knowledge in matters
relating to human rights. The appointments are to be made by the President
on the recommendation of a Committee consisting of the Prime Minister,
the Speaker of the House of People, the Union Home Minister, Leaders of
the Opposition in the Lok Sabha and the Rajya Sabha and the Deputy Chairman
of the Rajya Sabha.
But such is the total indifference of the Central Government to the functioning
of the Commission that even its full strength is not maintained. One member,
Sudarshan Aggarwal, retired about two years back and another, Justice
Ramaswamy, retired on July, 2002. Both these posts are still unfilled.
It is distressing that even the Leaders of the Opposition should not have
taken up this matter which touches on the human rights of the common person.
But then the Opposition at the Centre has its Government in various States
and, as figures reveal, in the matter of violations of human rights, Governments
of various political hues are equally guilty.
The
total number of complaints registered in the Commission in 1999-2000 was
50,634 - Uttar Pradesh accounted for the most complaints, 56.5 percent.
Bihar followed with 4,409 complaints, and Delhi was third, with 3,077
complaints. As for custodial deaths, there were 1,093 in 1999-2000. Maharashtra
had the highest (30 deaths) followed by West Bengal (19).
The indifferent attitude of the Central Government is further highlighted
by the fact that the present Chairperson, Justice J.S. Verma, is to retire
by January 18, 2003, and there is no announcement as yet of his successor.
Considering that, under the Act, the choice is limited to three available
retired CJIs. This delay seems a deliberate attempt to devalue the Institution
, a sad commentary on the present state of political morality.