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NHRC has been reduced to a toothless tiger: Supreme Court points out the loopholes

R Venkataraman | Updated on: 17 July 2017, 17:51 IST
(Arya Sharma/Catch News)

The Supreme Court of India on 14 July ordered for a Central Bureau of Investigation (CBI) probe into extra-judicial killings, commonly known as ‘encounter deaths’, in Manipur. In the process what has come to focus is the apex court’s lament that the National Human Rights Commission (NHRC) has been reduced to a toothless tiger.

The issue hasn’t been followed by the media much. But killings in Manipur, involving armed personnel of the Army, the Central Reserve Police Force, the Border Security Force and the police, generated a plethora of complaints before the NHRC.

The apex court’s observation came, ironically, on NHRC’s own affidavit which expressed various “difficulties”. Reacting to this affidavit, the Bench of Justices MB Lokur and UU Lalit made an observation:

“Considering that such a high powered body has brought out its difficulties through affidavits and written submissions filed in this court, we have no doubt that it has been most unfortunately reduced a toothless tiger.

“We are of the opinion that any request made by the NHRC in this regard must be expeditiously and favourably respected and considered by the Union of India otherwise it would become impossible for the NHRC to function effectively and would also invite avoidable criticism regarding respect for human rights in our country.”

This is a clear indication from the country’s apex court about the state of affairs with the apex human rights body and the manner in which it has been treated by the central government itself for years now. Especially in view of the fact that India is a signatory to the international human rights covenant and treaty and that the NHRC was formed on the terms of the treaty.

Further, it is pathetic to note that, as the Supreme Court itself pointed out, many states are yet to form their human rights commissions.

Perhaps nothing could explain the dim situation better than another Supreme Court observation:

“If the people of our country are deprived of human rights or cannot have them enforced, democracy itself would be in peril”.

It said the difficulties faced by the NHRC, as its own affidavit detailed, “is something to worry about from a human rights perspective”.

As such, India’s dismal human rights record is inviting criticism which, in the SC’s observation, could have been avoided if high-powered bodies formed for this purpose are made effective and given real arsenal formed for the purpose. The very formation is of officers whose human rights record is abysmal.

Under Section 11 of the Protection of Human Rights Act, 1993: “ The Central Government shall make available to the Commission -

(a) An officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the Commission; and

(b) Police and investigative staff under an officer not below the rank of a Director-General of Police and other officers and staff, as may be necessary, for the efficient performance of the functions of the Commission.

Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint other administrative, technical and scientific staff as it may consider necessary.”

 

What next though?

The criticism here is that a bureaucrat, who not has only deaf ears often enough but no ears for even an ordinary human problem, a man in uniform who is actually a human rights violator, (as Justice Mullah said in a judgement “Police are criminals in uniform”), will be a part of this human rights commission.

It becomes a body, thus, a centre for rehabilitating superannuating persons like in many tribunals and even consumer commissions.

A judge who is about to retire from court is appointed as chairperson of a tribunal. If the retirement age is 65, add another term of five years and it becomes 70. Likewise, if a judge retires at 62, now he will retire at 67.

In the case of the NHRC, a retired chief justice of India conventionally would be the chairperson.

A bureaucrat retires at the age of 60, and now he would do so at 65. Plus the Lutyens' Delhi bungalow and the lal batti (red beacon lamp) car (thank god now it is defunct).

Section 21 of the Act states that human rights commissions are provided for, but it is not mandatory, and hence many states need not bother about it and thereby about human rights itself.

Now let’s see a portion of the current judgment under discussion.

The Supreme Court says –

“We must express our disappointment on the failure of the NHRC to bring out its Annual Reports. A perusal of the website of the NHRC brings out that the latest Annual Report is of 2012-2013. Several years have gone by since then, but no Annual Report has been published – we have no idea what is the stage of preparation or consideration of the subsequent Annual Reports. We express the hope that given the importance of human rights, the Annual Reports of the NHRC will be made available with due expedition.”

Imagine that an apex body for human rights in India does not even bother to prepare annual reports, where as even if the Press Club of India’s annual reports are not prepared, there would be audit objections besides the company law provisions.

Rest of a portion I leave it to the readers to read and draw own inferences:

India’s top court says that the view laid down by a Constitution Bench of the Court in Naga People’s Movement for Human Rights v. The Union of India is followed:

“Access to justice is certainly a human right and it has been given a special place in our constitutional scheme where free legal aid and advice is provided to a large number of people in the country. The primary reason is that for many of the deprived sections of society, access to justice is only a dream. To provide access to justice to every citizen and to make it meaningful, this Court has evolved its public interest jurisprudence where even letter-petitions are entertained in appropriate cases. The history of public interest litigation over the years has settled that the deprived sections of society and the downtrodden such as bonded labourers, trafficked women, homeless persons, victims of natural disasters and others can knock on the doors of our constitutional courts and pray for justice. This is precisely what has happened in the present petitions where the next of kin could not access justice even in the local courts and the petitioners have taken up their cause in public interest. Our constitutional jurisprudence does not permit us to shut the door on such persons and our constitutional obligation requires us to give justice and succour to the next of kin of the deceased.”

“...We think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them.”

 

Making things clear

 

Keeping this in mind, as well as the Universal Declaration of Human Rights, Parliament enacted the Protection of Human Rights Act, 1993.

The Statement of Objects and Reasons for the Protection of Human Rights Act, 1993 is of considerable significance and accepts the importance of issues relating to human rights with a view, inter alia, to bring accountability and transparency in human rights jurisprudence. The Statement of Objects and Reasons reads as under –

“1. India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations on the 16, December 1966. The human rights embodied in the aforesaid covenants stand substantially protected by the Constitution.

2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, the government has been reviewing existing laws, procedures and systems of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation.

3. Wide-ranging discussions were held at various fora such as the Chief Ministers’ Conference on Human Rights, seminars organised in various parts of the country and meetings with leaders of various political parties. Taking into account the views expressed in these discussions, the present Bill is brought before Parliament.”

Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by the virtue of his being born a human. They are rights which are to be made available as a matter of right.

 

First published: 17 July 2017, 16:07 IST
 
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