The Protection of Human Rights Act 1993 is the constituent statute for the establishment of the National Human Rights Commission of India (NHRC) and the individual State Human Rights Commissions. The Union Cabinet on April 4, 2018 gave its approval for an amendment to the act through the Protection of Human Rights (Amendments) Bill, 2018 which aims at “better protection and promotion of human rights in the country”.
Background of the Amendment
The Bill was proposed in light of the concerns raised by the Sub-Committee on Accreditation of the Global Alliance of National Human Rights Institutions (GANHRI) on the re-accreditation status of NHRC. India is a member of the Asia Pacific Forum (APF) of National Human Rights Institutions (NHRIs) under GANHRI. One of the key missions of the GANHRI is to support the establishment and strengthening of NHRIs (National Human Rights Institutions) and in order to achieve this, GANHRI through its Sub Committee on Accreditation (SCA) reviews and accredits NHRIs in compliance with Paris Principles. NHRIs are accredited on a scale ranging from A to C, A being the highest which gives the members a right to participate fully in the international and regional work and meetings of national institutions, as voting members, and hold office in the Bureau of the International Coordinating Committee or any sub-committee. They are also able to participate in sessions of the Human Rights Council (HRC) and take the floor under any agenda item, submit documentation and take up separate seating. However, the SCA in its power may decide to defer an application rather than making a recommendation as to the accreditation status of an NHRI.
The NHRC faced a similar position. For January 24, 2017, SCA recommended that further consideration of the re-accreditation application of the NHRC of India be deferred. This was done till its second session of 2017.
In this deferral, the SCA expressed its concern over seven major issues with the National Human Rights Commission. Firstly, it said that the requirement that the Chairperson be a former Chief Justice of the Supreme Court and the majority of members be recruited from the senior judiciary severely restricts the potential pool of candidates, particularly as it relates to the representation of women in the governing body of the NHRC.
Secondly, the SCA underscored that the current selection process under the Act is not sufficiently broad and transparent since it does not mandatorily require the advertisement of vacancies and establishment of clear and uniform criteria upon which all parties assess the merit of applicants.
Thirdly, the SCA questioned the commission’s capability to function effectively as the NHRC Act requires a civil servant with the rank of Secretary to take the role of Secretary General of the Commission, and a police officer of the rank of Director General of Police or above to take the post of Director for Investigations.
Fourthly, the SCA noted that the NHRC was not free from political interference as the Chairperson of the National Commission for Scheduled Castes is a Member of Parliament, with voting rights in the full statutory commission.
Fifthly, the SCA highlighted that the NHRC was not cooperating with other civil society organisations when engagement with civil society was a primary requirement of the Paris Principles.
Sixthly, the SCA expressed its concern over a substantial backlog of cases in the NHRC confirmed to have been up to 40,000 by the NHRC itself.
Finally, the SCA also pointed out that the Annual reports prepared by the NHRC though made public are not tabled before Parliament nor a government response prepared for them which is a requirement under the Paris principles.
GANHRI thus as mentioned above has had serious concerns with the working of the NHRC in India particularly with regard to its independence and efficiency. The deferral was made on these grounds of non-compliance with the mandatory requirements under the Paris Principles.
The Amendment Bill also mentions the concerns raised by certain State Governments as they have been facing difficulties in finding suitable candidates to the post of Chairperson of the respective State Commissions owing to the existing eligibility criteria.
The proposed Amendment
The Amendment provides that a person who has been a Judge of the Supreme Court is also eligible to be appointed as Chairperson of the Commission, in addition to the person who has been the Chief Justice of India. Similarly, with regards to the State commissions, High Court judges in addition to chief justices are proposed to be eligible for appointment. The State Commissions have also been conferred upon the functions related to Union Territories except the Union Territory of Delhi which will be dealt with by the NHRC.
It also increases the Members of the Commission from two to three of which, one is to be a woman. With regard to the term of appointment, it reduces the term of the Chairperson and Members of the Commission and the State Commissions from five to three years while making them eligible for reappointment. Furthermore, The Bill provides for including the chairpersons of the National Commission for Backward Classes, the National Commission for the Protection of Child Rights, and the Chief Commissioner for Persons with Disabilities as members of the NHRC.
The Amendment Bill is aimed at strengthening Human Rights Institutions in India. The Act is, as per the government in perfect sync with the agreed global standards and benchmarks towards ensuring the rights relating to life, liberty, equality and dignity of the individual in the country.
The SCA in November 2017 itself, barely nine months after the deferral, commended the efforts taken by the NHRC to address its previously registered concerns and noted that the NHRC has proposed amendments to its enabling law. On these grounds the SCA re-accredited the NHRC with an “A” grade.
The SCA was referring to the proposed Amendment which has now been given a go-ahead by the Union Cabinet. Though a welcome step, this hardly addressed the concern of the SCA that recruitment from senior judiciary severely restricts the potential pool of candidates particularly with regard to the representation of women. The SCA has noted that one woman was appointed to the NHRC in April 2017 though underlining that appointment of one woman does not create sufficient gender balance. Furthermore, disregarding the concerns expressed by the SCA regarding the appointment of police officials, Senior IPS officer Gurbachan Singh has been appointed as the DG (Investigation) of the NHRC. Gurbachan Singh worked as the Special Director for Intelligence Bureau.
The Supreme Court in case of the Extra Judicial Killings in Manipur had noted that the NHRC has been reduced to a “toothless tiger”. The Bench, comprising Justices M B Lokur and U U Lalit noted that the Union government should expeditiously and favorably respect any requests made by the NHRC. The court also stated that the state governments should act on the directions made by NHRC to pay compensation to victims of human rights abuses which are sometimes not adhered to. The NHRC had submitted before the court that there should be implementation of its communications and guidelines, enforcement of the orders passed by it and serious consideration of their recommendations.
In order to give full effect to the mandate of NHRC, autonomy and independence in its functioning is indispensable.