National Human Rights Commission - One toothless commission?

National Human Rights Commission - One toothless commission?

NHRC stands justified in its demand for more power, but within statutory constraints. It can act more effectively

The Supreme Court has often rued that the recommendations of the National Human Rights Commission (NHRC) are ignored and that the high-powered body has become a “toothless tiger”. The NHRC has now pleaded before the apex court to make its recommendations in human rights violation cases, including those involving the Armed Forces, binding on the Centre and the States. The apex court also expressed its view that the human rights body, headed by a former Chief Justice of Supreme Court, should not be just a recommendatory body whose considered recommendations may or may not be accepted by the Government. For vigorous protection and promotion of human rights in the country this high-powered oversight body should enjoy more powers to implement its decisions.

But the sin is original. The Protection of Human Rights Act, 1993, (PHR Act), emasculated the NHRC as well as the State Human Rights Commissions (SHRCs) and rendered them toothless. The apex court now wants that the NHRC should probe into extra-judicial killings in Manipur and other insurgency affected areas. The Attorney General had to point out to the court that the NHRC was barred from such enquiries under Section 19 of the PHR Act which allows the body to only seek reports from the Government in regard to alleged violations of human rights by the Armed Forces and send its recommendations which may or may not be accepted. The NHRC, in 1995, strongly urged for amendment of this Act as well as few other sections which weaken and restrain it. A committee was set up under Justice AH Ahmedi, former Chief Justice of the Supreme Court, but the committee’s recommendations were cold shouldered by the Government. The amendment of the PHR Act in 2006 made some innocuous in cosmetic changes in the Act but did nothing to empower the commission and betrayed reluctance of the Government to have a powerful body.

Other recommendations of the committee to allow the NHRC to appoint its own personnel and give it greater financial autonomy were also not acted upon. The NHRC is not even able to release its annual report on time because of a delay in putting it in Parliament with action taken report by the Government. This often results in a delay in the release of annual reports.

It is true that human rights commissions are not courts. They can recommend, but not issue legally binding orders. Most of the human rights commissions in countries across the world recommend and not issue legally enforceable orders against which appeals can be filed in the courts. In the case of NHRC, most of its recommendations are accepted by the Government. Further, if some important and pertinent recommendations are not accepted, the PHR Act provides the commission u/s 18(b) of the Act to approach the Supreme Court or the High Court for necessary directions and writs. This writer has seen that this power has often been used with telling effect by the NHRC. Some of the recalcitrant State Governments had to bite the dust and implement the recommendations of the NHRC.

Of course, this provision should be used sparingly.  Unfortunately, the provision is seldom used by the State human rights commissions SHRCs who do not want to cross swords with the State Governments and incur displeasure. The human rights commissions can also publicise their recommendations to build public pressure to implement the measures recommended by it. This arrow in its quiver remains often unused. Truth is that a truly remedial institution may not be best served by teeth. An order grudgingly accepted and implemented can change one result. A recommendation, persuasive and compelling, can change a mindset.

It was hoped that, alongwith the NHRC, SHRCs would function as powerful mechanisms to protect human rights. Unfortunately, that hope has been belied. Most of the SHRCs have become dysfunctional and lack credibility. According to civil society groups and human rights activists, they have become parking lots for retired judges and career politicians and have failed to advance the cause of human rights. Disenchanted complainants prefer NHRC to SHRCs to file their complaints. There is poor coordination between NHRC and SHRCs. The PHR Act makes each SHRC an independent body with little supervisory control exercised by the NHRC. NHRC’s proposal for amendment of the Act to give it a supervisory role over the SHRCs has not found favour with the Government.

Nevertheless, the NHRC has a few achievements to its credit. It displayed commendable initiatives in taking up suomoto cognisance of important human rights concerns like police reforms, prison reforms, child labour, bonded labour, custodial death and torture etc. Any direction of the Supreme Court enabling NHRC to enquire into human rights violations by the Armed Forces and make the NHRC report binding on the Government will run contrary to the express provisions of the PHR Act. The Act needs to be amended.

But within the statutory constraints and other infirmities, the NHRC can play a more effective role. It has to ensure that a large number of complaints are not disposed off in limine. Reasons for such disposal should be explained to the complainants. The NHRC must take suomoto cognisance complaints and get them investigated. At the instance of NHRC, human rights cells have been opened by police authorities in police headquarters to which the NHRC sends a large number of complaints. But these calls are not properly functioning. There is crying need to galvanise them.