The Hindu : A watchdog weighed down

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Sunday, Oct 26, 2003

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A watchdog weighed down

The National Human Rights Commission is caught in a dysfunctional relationship with government and state, writes Anjali Mody.

TEN YEARS, 400,000 complaints of human rights violations and less than 1000 cases of redress. This is the real story of the National Human Rights Commission, created in 1993, according to the then Union Home Minister, S.B. Chavan, to "counter the false and politically motivated propaganda by foreign and Indian civil rights agencies".

Each year, tens of thousands let down by the law turn to the Commission in the hope of justice. Justice is not the Commission's to give, but the acknowledgement of injustice — a direction to prosecute the offender or to compensate the victim — is. Yet less than two per cent of the complaints that the Commission has received have had even the justice of their claim acknowledged.

The most obvious reason for this is too much work and too few hands. Only the five Members can take decisions at the Commission. This would not in itself be a problem if, in line with the statute under which the NHRC was created, State Human Rights Commissions had been set up in all States, with the intention of working independently of government and state. By and large State Commissions — set up in only 17 States, not including Gujarat, Bihar, Andhra Pradesh, Karnataka, Kerala — lack basic infrastructure and resources to work.

However, this is only part of the NHRC's problem. What seems to inhibit the Commission's work is also how it approaches it and the constraints that are placed on it by its relationship to the state. The Commission has a limited remit. The Act of Parliament by which it was created restricted its inquiries to violations of human rights by `public servants', not including the army or the paramilitary forces.

In the main, it receives complaints against the police. Over two thirds of them are of illegal detentions, illegal arrest, torture, custodial rape, custodial death, disappearances, false implication in cases, failure to take action or file complaints, and `other excesses'. Having received a complaint, the NHRC seeks a report from the Government department concerned. In the vast majority of cases the Commission, by its own admission, accepts the report it receives. In a fraction of the cases, between 100 and 150 a year, it conducts its own investigations.

The Jamshedpur branch of the People's Union for Civil Liberties illustrated what happened to a complaint a few years ago. It had referred a case of police torture to the NHRC, which asked the Bihar Government for a report.

The State Home Department passed the query on to the Inspector-General of Police. From him it was passed on, down the line, to the officers of the police station against whom the complaint had been made. They submitted a report saying the charges were false. The Commission accepted it and closed the case. The PUCL complaint had included a medical report, a statement from a fact-finding committee and other documents.

This is also what has happened with a large number of individual complaints the NHRC received in Gujarat. It had received "many hundred" petitions when its chairperson visited the State in March 2002. The Commission said it was "not possible to go into several thousand small complaints". So it ordered the petitions be sent to the Gujarat Police "to be clubbed with the respective FIRs for a more complete picture of the case".

One of the major complaints in Gujarat was the police's unwillingness to record complaints properly. In fact, in its orders of April and May 2002, the Commission had, among other things, pointed to this violation of rights and law.

The NHRC is clearly aware of the contradictions in the system it works through. In the list of recommendations in its last tabled annual report (2000-2001) it "calls upon senior officers of the State not to mechanically forward report of inquiries received from officers under their jurisdiction but to critically and closely examine and endorse the veracity of facts and conclusions before submitting these reports for acceptance of the commission."

The police and the paramilitary forces have the highest representation in the Commission's staff. No one at the NHRC is willing to be drawn on this matter. The position at the top is "we cannot get anyone other than the police to investigate the police". We asked a gentleman who has served long years with the Commission but did not want to be named, whether this was fair to the complainant. He said, "we work on the principle that a public servant has done an honest job".

This, say other human rights activists, sums up the problem. Although the functions of the Commission, specified by the Protection of Human Rights Act (1993), includes encouraging "the efforts of non-governmental organisations and institutions working in the field of human rights", it does not do so.

A former senior official of the Commission echoed this view. He said that the Commission could hope to make a real impact only if it was less suspicious of non-governmental groups. Critics say the NHRC gives greater credence to public servants and state institutions than to citizens or citizens' groups and cite the case of the documents that PUCL, Jamshedpur, provided counting for nothing against a report from a police officer.

However, the Commission headed by a retired Chief Justice of India is deeply conscious of the "government" tag it carries. It said in its annual report of 1998-1999 that from the start it had determined to "frontally and unequivocally" cast off this burden.

However, it has been unable to do so to any definite degree. In part this is because it is pitted against a state that views the defence of human rights as an assault on national security. But, in the main it is because it has been unable to step out of its skin.

The Commission, which cannot directly inquire into cases involving the `armed forces', had asked the Government for a report on the 1993 killing of 37 civilians by BSF jawans in Bijbehara in Kashmir. The report said that 14 jawans were tried and acquitted, but refused a request for a copy of the trial proceedings. The Commission concerned about a cover-up went to court. The matter remained there for years. NHRC annual reports, until last year, noted with dismay the Government's `lack of transparency'. According to Commission insiders, the case has been shelved, following an "understanding" with the Government.

The NHRC also gives Bijbehara as an example for why one of it main recommendations — to include paramilitary forces within its remit of inquiry — is so important. The Government has consistently refused to accept this. Human rights organisations say that this, among other things, underlines a failure to meet the U.N. standards for national human rights institutions and undermines the credibility of the Commission.

Maja Daruwalla of the Commonwealth Human Right's Initiative said that the NHRC was right in seeking to widen its jurisdiction. While this was so, she added, the Commission "should at least try and do a better job of its existing jurisdiction."

The view in the Commission is that they have to work `with government' or they will not get very far. In a country where the law and justice system works reasonably well, it might be expected that a National Human Rights Commission could rely on government and state to play a supportive role. However, where the law and justice institutions work badly, a cooperative relationship seems to work in favour of the offenders.

In a case relating to over 2097 disappearances and illegal mass cremations in Punjab in the early 1990s, the Commission was ordered by the Supreme Court to examine all issues raised in the matter.

The complainants said there was a pattern of impunity that should be investigated and that the perpetrators held accountable. The Commission restricted itself to identifying cases from the 2097 in which it could award compensation.

In 1999, the Punjab Government, which insists that all those cremated were `terrorists', despite evidence to the contrary, agreed to pay compensation in just 18 cases "without admitting liability". The NHRC felt that some relief was better than none and agreed.

What is interesting, however, is that the NHRC took the view that "for this conclusion it does not matter whether custody was lawful or unlawful, or the exercise of power of control over the person justified or not, and it is not necessary even to identify the individual officer(s) responsible/concerned." This was not acceptable to the complainants, nor was the selection of a handful of cases. So, the case remains unresolved. The NHRC says it is "caught between the Government and the petitioner".

The relationship with the Government, particularly the Home Ministry, was summed up by a former Secretary-General of the Commission who described it as one of "natural antagonism". The Ministry, through whom the Commission deals with the rest of the Government and Parliament, treats it lightly. It tables its annual report in Parliament on average, one and a half years after receiving it. It stonewalls queries. Its `action taken reports' are works of bureaucratic sophistry.

The Commission has recommended changes to the Act to improve its functioning. It has, among other things, asked for a say in appointments, powers to initiate prosecutions instead of only recommending them, and to compel persons it summons to an inquiry to attend. The Government has failed to respond.

The Commission has had at least three reviews of its system of processing complaints. One, in 1997, by the international management consultants McKinsey and Co. predicted that unless matters were remedied quickly, the Commission's ability to process complaints and provide redress would be seriously hampered. Few of their recommendations for re-organisation were implemented. Today the NHRC's annual caseload is around 70,000 a year.

The Commission cannot be accused of meeting the Government's dubious expectation, expressed at the time it was created, that it would act as "a corrective to biased and one sided reports of NGOs and politically motivated international criticism". At that time the Kashmir insurgency was at its peak, as were the complaints of human rights violations by security forces. Ten years later, by putting its stamp of authority on the reports of mass violations in Gujarat, the NHRC belied the expectation that it would cover-up for the state.

Yet tied in a dysfunctional relationship with government and state, the Commission's achievements have been more symbolic than real. Whether it is its espousal of the Best Bakery case, the award of Rs. 10 lakhs as compensation to an ISRO scientist who was jailed in a fake espionage case, or the recommendation that forest officials in Uttar Pradesh be prosecuted for stripping Dalit women, the cases it selects and pursues showcase the magnitude of the human rights problem in the country. But they make only a very tiny dent in it.

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