Protecting and upholding human rights just got more difficult in India. Vacant positions in the NHRC are going to pliant retired judicial officers, policemen on deputation, and sleuths who probe and track complainants and not the human rights issues they raise, writes human rights activist RAVI NAIR.
THERE is a certain insouciance and disesteem on the part of the Bharatiya Janata Party government in matters of upholding norms or respecting institutions. The National Human Rights Commission (NHRC) appointments committee has picked former Supreme Court judge Arun Kumar Mishra as chairperson. It has also made an insidious choice in Rajiv Jain, former head of the Intelligence Bureau. The third appointment is of a former Chief Justice of the Jammu and Kashmir High Court, Justice Mahesh Mittal Kumar.
Evidently, the NHRC under the Modi-Shah dispensation will be the new sword arm of an unethical central government, ready to open a new front against Opposition state governments and attack sections of civil society that have not genuflected. The quislings will find themselves on core committees of NGOs and other foundations, run directly or indirectly by the security machinery.
The Paris Principles are the international minimum standards that all National Human Rights Institutions (NHRIs) are encouraged to conform to. These principles recommend pluralistic appointments of a chairperson, members and staff, including representatives who are experts in human rights.
In March 2017, the sub-committee on accreditation of the Global Alliance of National Human Rights Institutions (GANHRI) said pluralistic composition is directly linked to an independent, credible, effective and accessible NHRI. However, India does not even appoint NHRC members transparently.
It said that if the members and staff of an NHRI are representative of social, ethnic, religious and geographic diversity, the public is more likely to believe that it will understand and be more responsive to their needs. The integrity and quality of members is a key factor that impacts the effectiveness of an NHRI, it the GANHRI sub-committee felt.
Despite repeated recommendations made by the sub-committee, recent as well as earlier NHRC members were not appointed in a transparent and consultative manner. The government of India did not advertise the vacancy or spell out the criteria of assessment but made these appointments secretively, through a selection committee that was given little information about the nominees.
Note that representatives from the ruling party are in a majority in the selection committee, as the position of Leader of Opposition is vacant in the Lower House since May 2014. The central government has failed to make the selection broad-based and transparent yet again. It could have considered a wide-ranging pool of desirable candidates from different segments of society—academics, social scientists, jurists and civil society—but this was not done.
Pluralism and Diversity in NHRC Composition
Concerning pluralistic representation, the SCA notes diverse models to ensure pluralism in the composition of the NHRIs. For example, it says, “a) Members of the decision-making body represent different segments of society as referred to in the Paris Principles.
Criteria for membership of the decision-making body should be legislatively established, made publicly available and subject to consultation with all stakeholders, including civil society. Criteria that may be unduly narrow and restrict the diversity and plurality of the composition of the NHRI’s membership should be avoided;
b) Pluralism through the appointment procedures of the governing body of the NHRIs, for example, where diverse societal groups suggest or recommend candidates;
c) Pluralism through procedures enabling effective cooperation with diverse societal groups, for example, advisory committees, networks, consultations or public forums; or d) Pluralism through staff that are representative of the diverse segments of society…”
The SCA notes that the Paris Principles require an NHRI to be independent of the government in its structure, composition, decision-making and method of operation. It must be constituted and empowered to consider and determine the strategic priorities and activities of the NHRI based solely on its determination of the human rights priorities in the country, free from political interference.
The Leader of Opposition in the Upper House, Mallikarjun Kharge, wanted a Dalit or Scheduled Tribe individual to be appointed. There are many superb legal and other academics from both groups who would have brought specialised expertise to the NHRC.
The SCA, in its General Observations made in 2013, had mentioned that “pluralism refers to a broader representation of the national society”. This includes representation from civil society as well. Though the founding law of the NHRC provides that two persons with knowledge and experience on human rights shall be appointed as its members, such people have not been appointed in key posts.
Justice Arun Kumar Mishra: Match Fixing
The post of the Chairperson of the NHRC has been vacant since December last year. Justice Arun Kumar Mishra retired as a Supreme Court judge in September. He was required to vacate his official accommodation within a month of demitting office. He should have been paying market rent for the last seven months.
The Chairperson of the NHRC is housed at a designated bungalow located in a tony central Delhi neighbourhood. In prestige-conscious New Delhi, your address denotes your position in the pecking order. So, the NHRC chair’s address is something to hanker after in Delhi’s dog-eat-dog culture. Surprisingly, some time ago, the NHRC wrote to the Ministry of Urban Housing seeking to give up its lien on this house, located on Tughlak Road. This was a signal that any new appointment to be the chairperson of the NHRC already had official accommodation. That a sinecure was in the offing was preordained.
The Peoples Union for Civil Liberties (PUCL) has said it all, “By appointing Justice Arun Mishra, whose tenure as a former Supreme Court judge was very controversial, the Modi government has demonstrated once again that the basis for their selection is not guided by the requirements of a head of the NHRC or even the track record of defending human rights by the person so selected. Instead, what matters is whether the person selected was close to the ruling dispensation.”
The PUCL said Justice Mishra was much criticised for ordering as a judge of the Supreme Court the eviction of millions of poor forest dwellers in a Public Interest Litigation (PIL) challenging the Forest Rights Act. The order was kept in abeyance only after the affected tribal communities launched nationwide agitations.
It added, “…in all politically sensitive cases he always sided with the central government or acted in a manner to help some of the top leaders of the central government. These include the Loya Case, Sahara Birla Corruption Case, Sanjiv Bhat Case, Haren Pandya Case, the tussle within CBI case, bail for Anand Teltumbde and Gautam Navlakha.”
The PUCL further said, “In contrast, in matters where the appeals were filed by the state [governments] and its instrumentalities, invariably, he either allowed the appeals or partly decided them in their favour. He infamously presided over a five-judge Bench on land acquisition, set up to reconcile a conflict in opinion between an earlier three-judge Bench and a Bench presided by him.
“Requests that he should recuse himself as there was conflict of interest with him heading the five-judge Bench which was examining his previous judgment not only fell on deaf ears but [was] brushed aside.”
The civil liberties organisation held forth: “It is very clear that Justice Arun Mishra seems to have been rewarded for having declared his fealty to Prime Minister Narendra Modi in a Judicial Conference involving judges from 24 countries on 20 January 2020. Notwithstanding that he was still a sitting SC judge, Justice Mishra unabashedly described Modi in glowing terms in his presence, as ‘an internationally acclaimed visionary… [and a] versatile genius who thinks globally and acts locally’.”
It went on, “The supreme irony of a sitting Supreme Court judge openly describing the PM, the head of the Executive, in such flowery terms indicating his closeness to the ruling regime was not lost on discerning jurists, lawyers and concerned citizens.”
The PUCL was even more scathing, “Few have forgotten the unprecedented action of four of the senior-most Supreme Court judges consisting of Justice Ranjan Gogoi, Chelameswar, Madan Lokur and Kurien Joseph, conducting a press conference in January 2019. The immediate trigger for the press conference was the assignment of the Judge Loya case to a bench headed by Justice Arun Kumar Mishra. The four judges also pointed how cases were being fixed and sent to particular Benches—and people inside the judicial system knew that the court was of Justice Arun Mishra—for favourable orders.”
Justice MM Kumar
Justice Kumar seems to be the only redeeming appointment amongst the three. He was the Chief Justice of Jammu and Kashmir High Court from 8 June 2012 to 4 January 2015.
According to Parvez Imroze, a prominent lawyer and human rights activist in Kashmir, during his tenure, he proactively dealt with matters related to the floods in September 2014. It is learnt that he passed orders that directed insurance companies to overcome technicalities, thereby providing a large number of those affected with relief. He also ordered the constitution of expert committees to mitigate the suffering of people.
Justice Kumar also quashed a Master Plan for Pahalgam, which was a scam, while hearing a Public Interest Litigation on the matter. He approved a new master plan prepared by an expert committee constituted through an order of the High Court, which proved beneficial for the locals and protected the environment from degradation.
He ordered payment of compensation to victims and survivors of the Kunan-Poshpora mass rape. He ordered further investigation into the incident as well, which was publicly construed as an indictment of the Indian armed forces.
Justice Kumar also played a satisfactory role in detention matters. He invited the ire of the government when he allowed the president of the Jammu and Kashmir High Court Bar Association (JKHCBA) to present arguments challenging the sovereignty of India in open court.
Other activists stated that he was part of the good cop-bad cop routine the government of India constantly plays in the Valley.
On 17 December 2016, the Union government appointed Rajiv Jain as Director of the IB. The 1980-batch IPS officer served in various departments of the IB including the Kashmir desk. Interestingly, he was the Subsidiary Intelligence Bureau chief in Ahmedabad from 2005 to 2008. At the time, Modi was the chief minister of Gujarat and Amit Shah a minister and go-to man in the state.
He got a six-month extension of his tenure until June 2019 after he retired in December 2018. This, coincidentally, overlapped with the parliamentary elections of 2019. He was appointed Deputy National Security Advisor in September 2019. Why or when he moved on from that post is not in the public domain.
Jain was appointed an independent external monitor to look after the affairs of the Military Engineer Services (MES) and Border Road Organisation (BRO) on 31 May 2021 for three years.
This is an important assignment given the Chinese are nibbling at India’s side thanks to non-existent infrastructure and non-demarcation of territory on the Indian side. Yet, as Alice would say, curiouser and curiouser. Within a day, far from trudging the heights of Bomdilla, he became an NHRC member on 1 June.
Appointments of police personnel as NHRC members weaken the independence of the country’s top human rights body. The three present members of the NHRC, including a former judge, also have made no substantive contribution in the human rights field.
In 2004 as well, PC Sharma, a police officer, was appointed to NHRC. It was challenged in the Supreme Court as well. Sharma had retired as CBI director and was appointed by the ruling National Democratic Alliance (NDA) government despite opposition from then NHRC chairman Justice AS Anand.
Justice YK Sabharwal was Chief Justice of India at the time and he said as part of the Division Bench hearing the matter that it was a “complete no for a former CBI or a police official to be appointed as a member of the apex human rights body”. The Supreme Court narrowly upheld Sharma’s appointment.
Staff members are largely deputed temporarily to the NHRC from other government departments. The PHRA does not specifically require the inclusion of minorities, marginalised communities, persons of diverse sexual orientation or persons with disabilities.
Appointments from the Police
The NHRC employs police officers to investigate complaints, which creates a real or perceived conflict of interest in cases of abuse committed by police and impacts the ability of the victims to access justice. These police officers are mostly not permanent employees but on deputation to the NHRC. Their primary loyalty, therefore, is to their parent police departments. A downgrade in their salary and perks is being contemplated for their tenures at the NHRC. This will ensure the end of any residual enthusiasm for their present assignments.
Even more worrying is that a large number of IB staff are deputed at the NHRC. These officers are not answerable to the NHRC and have no expertise in human rights. A past instance is of senior Intelligence Bureau officer, Ashok Chakravarty, who, before retirement, was integrated within the staff of the NHRC.
The IB and RAW have no parliamentary oversight and no financial accountability to the Comptroller and Auditor General either. In the NHRC, their primary task is to profile complainants and the issues they raise and keep the Deep State posted.
Another IB officer, PS Rao, was on deputation to the NHRC and retired a few years ago. Presently, OP Vyas, an IB official has been integrated within the NHRC. Yet another former Special Director of the IB was appointed Director-General of Investigation in the NHRC!
There is presently an officer from the Research and Analysis Wing (RAW), India’s external Intelligence agency, also posted in the NHRC.
Will SCA Revisit NHRC Accreditation?
That the Indian NHRC was granted “A” status by the SCA in 2017 is a scandal. This was perturbing as the NHRC, for its November 2017 review, had done nothing credible to attest to improvements nor was there was any substantive compliance with the SCA recommendations of 2011 and 2016.
The grounds for deferral of accreditation—the appointment of political representatives, failure to ensure gender balance and pluralism in staff, among other reasons—in November 2016 were unchanged by November 2017.
In the one year of deferral, the Indian NHRC did not take any substantive action—none that is available in the public domain at least—that would demonstrate even a willingness to respect and adhere to the November 2016 recommendations.
These were argued and explained in detail in reports submitted to the GANHRI Secretariat by the South Asia Human Rights Documentation Centre and the Asian NGO Network on NHRIs.
The new appointment will ensure the death of much-required reforms in the Indian NHRC as suggested by the Justice Ahmadi report and bury reforms in the more than 170 other national and state-level human rights institutions in India. All of them are opaque and toothless.
Aporia is the Greek term for the state of helplessness—the inability to proceed. It is what the bulk of the informed human rights community feels. Protecting and upholding human rights in India just got harder.
(Ravi Nair is with the South Asia Human Rights Documentation Centre. The views expressed are personal.)