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.

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