India’s NHRC: The best case is quite worse

At the ongoing 7^th International Conference of the National Human Rights Institutions from 14-17 September 2004, India’s National Human Rights Commission (NHRC) could easily be considered as one of the best National Human Rights Institutions in the region. NHRC’s role in the withdrawal of the Terrorists and Disruptive Activities (Prevention) Act and taking appropriate steps to address miscarriage of justice in the aftermath of Gujarat riots of 2002 has been commendable. Yet, as this features shows, it is quite worse.

The appointment of a cop as member of the NHRC makes the full circle. On 25 February 2004, the government of India appointed Mr P C Sharma, former Director of India's Central Bureau of Investigation, a federal police investigating agency as a member of the NHRC. On 4 March 2004, then Opposition Party, Congress regretted the appointment of Mr Sharma and opposed his appointment. The Peoples Union for Civil Liberties filed a petition before the Supreme Court of India challenging the appointment of Mr Sharma. However, on 10 August 2004, the Congress-led United Progressive Alliance government in its affidavit before the Supreme Court supported the appointment of Mr Sharma. In violation of the convention, the Government reportedly did not consult NHRC Chairman Justice A S Anand on Mr Sharma's appointment. Earlier, former Chairman of NHRC, Justice J S Verma had refused the government's proposal to appoint former Delhi Police Commissioner Mr M B Kaushal on the ground that policemen should not be made the commission's members.

The NHRC does not have adequate financial independence as the Ministry of Home Affairs (MHA) controls the purse strings. Although most complaints of human rights violations are against law enforcement personnel who serve under the MHA, the NHRC also has to report to the MHA. The NHRC requires prior permission of the State government to visit to a jail or any other penal institution. In most cases, such a procedure defeats the investigation as there are attempts to paint a rosy picture for the NHRC members. The NHRC does not have adequate investigative staff and no independent forensic department.  Under Section 19 of the HRPA, when a complaint alleges human rights violations by a member of the armed forces, NHRC simply cannot investigate. NHRC’s absolute silence on the alleged extrajudicial killing of Thangjang Manorama of Manipur on 11 July 2004 by the Assam Rifles personnel has been astounding.

Despite such shortcomings, the NHRC has turned into a poor man's court. 66,548 cases taken cognizance of by the NHRC during 1993-2001 vouches it.  Unfortunately, an overwhelming number of the complaints have been pending. According to the Annual Reports of the NHRC, the total number of cases taken cognisance of and disposed of with directions from 1 April 1994 to 31 March 2001 are 66,052, respectively, 1,567 cases during 1994-95, 4,081 cases during 1995-96, 6,503 cases during 1996-97, 5,800 cases during 1997-98, 10,718 cases during 1998-99, 20,944 cases during 1999-2000 and 16,439 cases during 2000-2001. The total number of complaints concluded during the same period i.e. from 1 April 1994 to 31 March 2001 are 9,601, respectively, 276 cases during 1994-95, 546 cases during 1996, 528 cases in 1996-97, 131 cases during 1997-98, 3,395 cases during 1998-99, 1,406 cases during 1999-2000 and 3,319 cases in 2000-2001.  Although, NHRC shows high number of cases being disposed of with directions, it was able to conclude only 14.54% of the complaints and a staggering 85.46% of the cases were pending during 1993-2001. The delivery of justice by the NHRC is as pathetic as the Indian judicial system.

In addition to the restrictions imposed by the Human Rights Protection Act, 1993, the flaws in the functioning of the NHRCs have made it more ineffective.

The NHRC has no protection mechanisms for those who cooperate with it. The NHRC routinely forwards copies of complaints to the concerned authorities, thereby exposing the complainants to the authorities who can take retaliatory measures. On 2 April 2004, Asian Centre for Human Rights has filed a complaint against its harassment by government officials who claimed to be from the Ministry of Home Affairs. They were investigating the complaints lodged by ACHR with NHRC. NHRC failed to acknowledge the compliant as of today.

In addition, the determination processes are biased towards the State. On 16 December 2000, the Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (CCRCAP) filed a complaint against the non-implementation and violation of the Supreme Court judgement of 9 January 1996 in the case of NHRC Vs State of Arunachal Pradesh & Anr (720/1995). NHRC in its letter of 27 May 2004 (D.O NO.5/1/2001 - PRP&P) forwarded three paragraph excerpts from the Ministry of Home Affairs and requested the CCRCAP to comment. On 29 July 2004, the CCRCAP requested the NHRC to give the “permission to inspect the complete file” as the three paragraph excerpts from the response of the Ministry of Home Affairs is insufficient to submit comments. In a telephonic call, one secretary to the Deputy Secretary (Research) informed that NHRC couldn’t give permission to inspect the file.

“When we file complaints to the NHRC despite being vulnerable to abuses by the State government, NHRC forwards our complaints in toto.  However, when the State government replies, we are only given excerpts and not allowed to inspect the file. How could we file our replies without having assessed the full response of the State government?”-stated Subimal Bikash Chakma, President of the Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh.

The investigation processes of the NHRC allow the police to be judge and jury. In a complaint (No.100/3/2002-2003) on 23 September 2002, Asian Indigenous and Tribal Peoples Network (AITPN) sought intervention of the NHRC against police atrocities including torching of the houses at Hojaipur village under Diphu police station, Karbi Anglong, Assam on 25 August 2002. According to the information provided by Dimaraji Mohila Samaj (Dimaraji Women’s Organisation), Hojaipur branch of Assam, a combined police team comprising of the Central Reserve Police Force, Black Panthers and Assam Police under the command of Mr. K K Sarma, Superintendent of Police of Karbi Anglong attacked the Hojaipur village. The police team allegedly dragged the villagers out of their houses and torched the houses to ashes along with their belongings without any provocation. Many innocent villagers were rendered homeless after the houses were burnt and were reduced to destitute. The security personnel surrounded the village and did not allow the villagers to recover anything from the burning houses. Referring to the atrocities committed by the Superintendent of Police, the Dimaraji Mohila Samaj further alleged that he had perpetrated similar atrocities at Dhansiri and other parts of the region.

In its reply on 14 November 2002, the Director General of Police, Assam simply attached the report filed by Superintendent of Police Mr K K Sarma against whom AITPN had filed the complaint in the first place. Mr Sharma reported that “the socalled victims of the petitioners have burnt their own houses themselves for reason known to them!” Such a bizarre procedure where the accused can act as judge and jury of his own conduct is unfair, unreasonable, unjust and unacceptable... Such travesty of justice will continue unless the NHRC is able to conduct independent investigation and stops relying on the report of the alleged perpetrators.

In its 2001-2002 Annual Report, NHRC stated “The delays (in making its annual reports public) have amounted to the denial of right to information... The delay in tabling the annual report before Parliament has resulted in a corresponding delay in releasing its contents to the public. In the process, both the elected representatives and the public have, in effect, been denied timely and comprehensive information on the work and concerns of the Commission”.  Though ACHR requested on 18 March 2004 to share a copy of the report, NHRC failed to even acknowledge the letter. The  “Memorandum of Action Taken” has become an official secret document, so much for the right to information.

The National Human Rights Commission of India must improve its functioning by providing protection to witnesses/complainants by withholding the identity of the complainants from the authorities, sharing information unless otherwise requested by the authorities or complainants subject to the scrutiny of such requests by the full commission of the NHRC, strengthening its investigation processes and developing its forensic department and it must respond urgently to the situations/complaints and deal with complaints in a speedy, effective and transparent manner.