“Human rights commissions, are they doing some work? What power do they have?” asked Justice T.S. Thakur of the Supreme Court last week (5th August 2014) while hearing a three-decade-old petition filed by a former judge of the Calcutta High Court, Justice D.K. Basu, seeking directions against custodial deaths.
According to The Hindu, the Court heavily criticised the efficacy of these commissions. “Retired judges when appointed are given house, office, everything… but when it comes to real service to human rights, they are powerless,” it went on to observe.
An audit of these commissions establishes that the court is not far from the reality in its observation about state of human rights commissions in India and its performance.
These commissions came into being in October 1993 (and after) with the passage of a Presidential Ordinance, which was later introduced in the parliament as the Protection of Human Rights Act, (PHRA)-1993, passed in January 1994 and amended in 2006. As per the Act, the Commission’s mandate is to “inquire, suo motu or on a petition presented to it by a victim or any person on his behalf violation of human rights or abetment thereof; or negligence in the prevention of such violation by a public servant; intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court”.
According to a detailed study of Indian Human Rights Institutions (HRIs), Rugged Road to Justice: A Social Audit of State Human Rights Commissions in India, (Ed. Hrsh Dobhal, Mathew Jacob and Anupam Kishore, HRLN: April 2013), these commissions have “effectively become an instrument of the state and have been largely viewed as puppets of the State.” The study published in two volumes, further states that the commissions despite having power to move the high courts and the Supreme Court, hardly ever exercise this power to dispose off the complaints. Moreover, “the PHRA specifically mentions the establishment of a human rights court in each district,” but the ground reality is that: “in some states they have been notified but are not yet working, whilst in other states they are yet to be notified and not much information is available in the public domain with regard to their functioning. These human rights courts mostly exist just on paper,” it alleges.
The study concludes the HRIs are “in a grave state of disarray” and “the hopes of the millions of people who were advocating for these commissions have been turned into despair.” Citing a case of extra-judicial killing it asks, “Can justice be expected from an institution which is another organ of the perpetrator, i.e., the State? The NHRC, being insensitive to the human rights issues, has asked the same accused to carry out the investigation into the issues. In other words, the NHRC has asked the police to investigate themselves, and then submit a report.” It further adds, “There is no doubt that there is a clear lack of political will amongst the commission members. This can clearly be correlated with the political appointments in the commissions which will be discussed later in this section of the report.”
These scathing observations about the state of HRIs are not based on some perceptions but on a detailed study of 12 SHRCs. The forthcoming volumes of the study scheduled to be released early next year will cover the remaining states. The study has examined the HRIs on various counts such as independence, appointments and composition, infrastructure, relationship with civil society groups and accessibility of the commissions at length, state by state.
The research methodology adopted for the purpose of the report includes collecting data on the work of the commissions (such as annual reports, cases and orders/recommendations passed by the commissions); additionally, they have interviewed staff, members and chairpersons of the commissions and civil society groups, gathered media reports on the work of the commissions and used RTI, where they were denied access to the information directly. All information is tested against the set standards and objectives of the parent statute, the Protection of Human Rights Act, 1993 and various International Guidelines, such as the Paris Principle.
At the same time however, the study does not shy away from appreciating the good work done and cases disposed off (though very limited in numbers) by these institutions. It notes, “while many have already given up the hope of any improvement in the functioning of these commissions and do not want to engage with these institutions, there are yet a large number of activists, lawyers and social workers who for years have constantly engaged themselves with the commissions in an attempt to seek justice, work and campaign towards streamline their functioning and to help make them more effective.”