Insights into Editorial: Toothless tiger NHRC needs more powers: Apex court
09 July 2016
The Supreme Court recently said it did not augur well for a democracy like India to have a National Human Rights Commission (NHRC) which was helpless to redress human rights violations as states seldom implemented its recommendations.
- NHRC has also informed the court that it had no power to act against persons or authorities who did not follow the guidelines laid down by it nor did it have the power to issue directives or pass orders but could only make recommendations.
While dealing with the alleged extra-judicial killings of 1,528 persons in Manipur by police and armed forces, the court proposed to examine the grievance of NHRC that it has become a toothless tiger. The court has proposed to consider the nature of guidelines issued by the NHRC – whether they are binding or only advisory.
All you need to know about NHRC:
The National Human Rights Commission (NHRC) of India is an autonomous public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993. It was given a statutory basis by the Protection of Human Rights Act, 1993 (TPHRA).
- The NHRC is the national human rights institution, responsible for the protection and promotion of human rights, defined by the Act as “rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants”.
- It consists of a Chairman and 4 members. Chairman should be a retired Chief Justice of India. Members should be either sitting or retired judges of the Supreme Court or a serving or retired Chief Justice of a High Court and 2 persons having practical knowledge in this field.
- Ex officio members are the chairmen of National Commission for Scheduled Caste, National Commission for Scheduled Tribes, National Commission for Minorities and National Commission for Women.
Appointment: The chairman and members are appointed on the recommendation of a 6 member committee consisting of Prime Minister, Speaker of the Lok Sabha, Deputy Chairman of the Rajya Sabha, leaders of opposition in both the houses of parliament and Union Home Minister.
Term: Term of the chairman and members is 5 years or 70 years whichever is earlier. After retirement they are not eligible for further reappointment.
Removal: President has to refer the matter to Supreme Court and if after enquiry Supreme Court holds it right then they can be removed by the President.
Why NHRC is called as a toothless tiger?
It is because NHRC investigates human rights violation cases, sometimes in remote areas, with very limited resources. The evidence collected is put to forensic judicial adjudication by its chairman and members, who are former judges. But at the end, when NHRC arrives at a finding, it can only recommend remedial measures or direct the state concerned to pay compensation.
Problems being faced by NHRC and other State Human Rights Commissions:
- Most human rights commissions are functioning with less than the prescribed Members. This limits the capacity of commissions to deal promptly with complaints, especially as all are facing successive increases in the number of complaints.
- Scarcity of resources is another big problem. Large chunks of the budget of commissions go in office expenses, leaving disproportionately small amounts for other crucial areas such as research and rights awareness programmes.
- NHRC is deluged with too many complaints. Hence, in recent days, NHRC is finding it difficult to address the increasing number of complaints.
- As human rights commissions primarily draw their staff from government departments – either on deputation or reemployment after retirement – the internal atmosphere is usually just like any other government office.
- Strict hierarchies are maintained, which often makes it difficult for complainants to obtain documents or information about the status of their case.
Problems with the current Protection of Human Rights Act, 1993:
- NHRC’s recommendations do not percolate to the ground level as the NHRC does not have the backing of the Protection of Human Rights Act to penalise authorities which do not implement its orders.
- The Act does not extend to Jammu and Kashmir and hence the commission has to keep its eyes closed to human rights violations there.
- The Act does not categorically empower the NHRC to act when human rights violations through private parties take place.
- The Act requires that three of the five members of a human rights commission must be former judges but does not specify whether these judges should have a proven record of human rights activism or expertise or qualifications in the area. Regarding the other two members, the Act is vague, saying simply: “persons having knowledge and experience of human rights.”
- Under the Act, human rights commissions cannot investigate an event if the complaint was made more than one year after the incident. Therefore, a large number of genuine grievances go unaddressed.
- The powers of the National Human Rights Commission relating to violations of human rights by the armed forces have been restricted to simply seeking a report from the Government, (without being allowed to summons witnesses), and then issuing recommendations.
What can be done?
- The effectiveness of commissions will be greatly enhanced if their decisions are immediately made enforceable by the government. This will save considerable time and energy as commissions will no longer need to either send reminders to government departments to implement the recommendations or alternatively to approach High Courts through a cumbersome judicial process to make the government take action.
- Governments should seriously consider the recommendations made by NHRC as NHRC’s orders are passed by persons who had long training and experience as judges of the Supreme Court and high courts. Directives are issued by them after sifting chaff from grain, which they are judicially trained to do.
- Also, a large number of human rights violations occur in areas where there is insurgency and internal conflict. Not allowing NHRC to independently investigate complaints against the military and security forces only compounds the problems and furthers cultures of impunity. It is essential that commission is able to summons witnesses and documents.
- As non-judicial member positions are increasingly being filled by ex-bureaucrats, credence is given to the contention that NHRC is more an extension of the government, rather than independent agency exercising oversight.
- NHRC also needs to develop an independent cadre of staff with appropriate The present arrangement of having to reply on those on deputation from different government departments is not satisfactory as experience has shown that most have little knowledge and understanding of human rights issues.
An important point to be noted is that Human Rights Commissions are not the panacea for all problems related to the subject in a society. They tend to be effective only under a given set of circumstances, but most importantly, a lot depends on the level of funding, functional independence, and institutional autonomy guaranteed to the HRC. It is nearly 15 years since the National Human Rights Commission (NHRC) was established in India through the adoption of the Protection of Human Rights Act, 1993, by Parliament. Now is a good time to examine not only the functioning and effectiveness of the NHRC and the SHRCs but also to identify the central challenges relating to human rights in the future and work towards tackling them. It is important that Human Rights Commissions (HRCs) succeed in their efforts to promote and protect human rights.