In recent years, the National Human Rights Commission of India has largely abdicated its role. As its review by the Global Alliance of National Human Rights Institutions draws close, Arvind Narrain argues that only accountability will ensure performance improvement.
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INDIA, the world's largest democracy, has unfortunately been witnessing a backsliding on human rights. It is in this context that the National Human Rights Commission of India (NHRC) will be undergoing its review for accreditation by a jury of its peers which is the Global Alliance of National Human Rights Institutions (GANHRI) in March 2024.
Accreditation by GANHRI and the status of A or B, which is awarded, is based on the extent to which an NHRI complies with the Paris Principles— which are the agreed minimum standards that NHRIs must meet to be considered credible.
One of the standards that the NHRC will have to meet is to show that it is exercising its powers to "draw the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government".
In India, the constituency which has mounted the strongest defence of human rights is civil society. There have been strong protests against the Citizenship Amendment Act, 2019 (CAA) as well as by farmers against the farm laws.
“Accreditation by GANHRI and the status of A or B, which is awarded, is based on the extent to which an NHRI complies with the Paris Principles.
There has also been a consistent campaign for the release of political prisoners including the BK-16, the Delhi anti-CAA protestors as well as the thousands of Adivasis who languish in Indian prisons.
The exercise of these fundamental rights to speech, expression and assembly has come at a great cost. Those doing human rights work have faced the brunt of persecution by the State.
Be it Khurram Parvez of the Jammu Kashmir Coalition of Civil Society (JKCCS), Harsh Mander, Henri Tiphagne or Aakar Patel— they have all faced the brunt of State intimidation.
Khurram Parvez, who is an internationally known human rights defender is still in jail, imprisoned under the Unlawful Activities (Prevention) Act (UAPA), 1967 for the 'crime' of human rights reporting on Kashmir.
It is outrageous that the NHRC has not released a single statement on the arrest of Khurram Parvez and Irfan Mehraj and the targeting of the JKCCS, which is the premier human rights organisation based in Kashmir.
When the very raising of a voice is sought to be stifled by the State, democracy is under threat. It is in times such as this, that it is vital that an institution with a mandate of independence stands up for the principle that the work of human rights defenders, however unpalatable it is to the government, is a vital element of our democratic fabric.
The institution which Indian civil society looks to, to stand up for these core democratic principles of speech, expression, association and assembly, is the NHRC.
The mandate of the NHRC under the Protection of Human Rights Act, 1993 is the 'better protection of human rights'. By human rights, the statute under Section 2(d) means, "the rights related to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants."
The question of defending the right to speech, expression, assembly and association is vital to an institution that claims human rights as its very mandate. If the NHRC has remained silent when its core mandate is being threatened, then it needs to be accountable for its inaction.
Leaving aside the question of being a voice in support of those raising human rights concerns, the NHRC also has a mandate to proactively intervene in human rights concerns of the day.
In the past, the NHRC has exercised its power under Section 12(d) of the Act by doing a 'review' of the "safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation".
The NHRC in the past has been responsive to civil society concerns and come out with recommendations on legislation in which there were legitimate concerns expressed about human rights.
Also read: Two years on, human rights defender Khurram Parvez waiting for his human rights to be defended
With respect to the Prevention of Terrorism Ordinance (later Act), the NHRC came out with a finding that, "there was no need to enact the new law" and that the concerns around terrorism could be dealt with under existing legislation.
“In India, the constituency which has mounted the strongest defence of human rights is civil society.
However, the current NHRC has shown no concern about the constitutional implications of anti-terror laws. Ever since the coming into power of the Modi government, both the UAPA and the National Investigation Agency (NIA) Act, 2008 have become the go-to laws with respect to targeting dissenters.
An online People's Union for Civil Liberties (PUCL) conference held in January 2021 had victims and activists testifying from twelve states across the country on how the UAPA continues to be invoked to criminalise dissent, be it of speech, association or assembly.
However, the misuse of the UAPA and the NIA Act while being raised by civil society groups, has not troubled the human rights conscience of the NHRC.
Neither has the current NHRC seen fit to issue any statement or analysis regarding the human rights implications of the three criminal laws that have been passed to replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872.
These laws seriously dilute human rights standards which the NHRC should hold dear, be it the prohibition against handcuffing or solitary confinement. However, the analysis and critique of the same have been left to civil society.
The other important function that the NHRC has under Section 12(b) of the Protection of Human Rights Act, relates to "intervening in any proceeding involving any allegation of violation of human rights pending before any court". In the past, the NHRC has intervened forcefully in the Supreme Court on key human rights violations.
During the Gujarat riots in 2002, the NHRC was a petitioner before the Supreme Court representing the interests of the human rights violated, in a luminous example of the use of its powers under Section 12(b) of the Protection of Human Rights Act.
Also read: Justice Kaul calls for TRC in Kashmir, but look at the fate of those whose work can enable it
However, the NHRC has not said a word in relation to the passing of the CAA by the Union government and its recent notification.
The passing of the law triggered one of the most widespread protest movements in contemporary times, with over 140 petitions being filed challenging the CAA.
The NHRC could have exercised its powers under Section 12(b) and added the weight of its office to the challenge by filing its own petition before the Supreme Court.
“It is outrageous that the NHRC has not released a single statement on the arrest of Khurram Parvez and Irfan Mehraj and the targeting of the JKCCS, which is the premier human rights organisation based in Kashmir.
It took a statement by the Office of the High Commissioner of Human Rights (OHCHR), in which it contemplated intervening in the Supreme Court to expose the failure of the NHRC to a global audience.
The Ministry of External Affairs has opposed this proposed intervention, stating that the Act is "an internal matter of India". It further went on to characterise the United Nations body as a "foreign party" and the intervention itself as bereft of "locus standi" as it related to "issues pertaining to India's sovereignty".
This debate between the ministry and the OHCHR provided the NHRC an opportunity to issue a statement welcoming the OHCHR intervention as adding a welcome dimension of an understanding of international human rights which was in harmony with the definition of human rights in the Protection of Human Rights Act. However, the NHRC remained silent.
Shockingly, the NHRC choose not to comment on one of the most egregious violations of human rights in India. The Gujarat government remitted the sentence passed against those accused of rape and murder during the Gujarat riots of 2002 and released 11 convicts who were serving a life sentence.
The case itself involved the brutal gangrape of Bilkis Bano and several other women of her family along with the murder of her family members, including her 3-year-old daughter.
“The institution which Indian civil society looks to, to stand up for these core democratic principles of speech, expression, association and assembly, is the NHRC.
This shocking case of remission led to the filing of a petition in the Supreme Court by concerned citizens. The NHRC did not see it fit to either intervene or comment on this violation of women's rights to dignity, bodily integrity and life.
Also read: Bilkis Bano judgment: A detailed explainer
The final decision of the Supreme Court, striking down the remission, is entirely due to the intervention of civil society, with the NHRC remaining a silent bystander.
When the government arbitrarily remits the punishment for the most egregious crime of rape and murder and the NHRC remains silent then the question remains as to whether it is performing its statutory and constitutional responsibilities?
From the point of view of Indian civil society, the NHRC has utterly failed to fulfil its mandate. Though it has relatively broad powers, it has failed to exercise them. It has violated its commitment to uphold the Paris Principles by showing a lack of independence in the discharging of its mandate.
“The misuse of the UAPA and the NIA Act while being raised by civil society groups, has not troubled the human rights conscience of the NHRC.
The NHRC must not be given a free pass to continue to abuse its mandate by its partisan silence. The decision of the Sub-Committee on Accreditation (SCA) on the status of the NHRC should be based on a rigorous scrutiny of the record of the NHRC in fulfilling its mandate.
The material in the public domain inspires no confidence at all that the NHRC deserves an A status. Hopefully, this process of scrutiny will provide a much-needed wake-up call to the NHRC to exercise its powers under the Act and work to fulfil the Paris Principles.