Is the NHRC the latest victim of Executive overreach?
Recently the controversial appointment of the chairperson of the National Human Rights Commission made headlines. It is an autonomous body responsible for raising issues related to violations of human rights and making the state accountable. Its autonomy is its principal source of power that it uses to achieve its aforementioned goals. This controversy questions the very source of its power and implies that it is in fact the central government that is controlling the NHRC.
Destructions caused by World War 1 and 2 shook the world. Countries came together under the banner of the United Nations. Universal declaration of human rights (UDHR) was adopted by the UN general assembly in 1948. National and state human rights commissions are constituted under the Protection of Human Rights Act 1993. It was passed after India signed the Paris Principles in 1991.
The protection of Human Rights Act deals with the appointment of members and functions of the NHRC and state human rights commissions. Section 2 (1)( D) of the Act defines human rights as rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by courts in India. NHRC investigates matters involving human rights violations. It studies various treaties and other international instruments related to human rights and make recommendations for their effective implementation. It is responsible to promote research and awareness about human rights among people and recognize the effort of various NGOs working in the same field. It can recommend to the appropriate government authority to pay damages or compensation to the victim in cases involving human rights violation. It can also recommend government authority to initiate proceedings or take other suitable actions. It can approach the Supreme Court or the High Court for directions/orders, as its recommendations are not binding on the state.
The Act was amended in 2006 and 2019. Before 2019, only former chief justice of India could be appointed as chairperson of NHRC. Now any former Supreme Court judge can be appointed as the chairperson of NHRC. The tenure of the chairperson has been reduced from 5 to 3 years. The president appoints chairperson and other members recommended by the committee, which consists of the prime minister, speaker of Lok Sabha, home minister, leader of opposition of both houses and deputy chairperson of Rajya Sabha. The 2019 amendment gives more options to the panel however recent appointment of former Supreme Court judge Arun Mishra as the chairperson has received criticism. The campaign for judicial accountability and reforms (CJAR) issued the letter condemning the appointment based on his judgments in sensitive cases. As per the letter, his insensitivity towards human rights issues and friendly relations with government evident from favorable judgments makes his appointment questionable. It refers to the Forest Dweller case, in which, the bench lead by him directed states to evict around 1 million persons from forest land, whose claims under Forest Rights Act had been rejected. The order was later stayed by another bench also lead by him. The letter further states that he was known for his lack of compassion and listening skills, which compelled many lawyers to walk out of his court. NHRC often deals with the issues of most marginalized and deprived sections of the society and these skills are sine qua non for considering issues of subalterns.
He asked the person with physical disability to get up from the wheel chair and come to the podium. His son almost had to drag him to the podium. He insulted one disability activist and questioned his motives for asking to make public busses accessible. There are plethora of articles written over his friendly relationship with current prime minister and central government. To maintain the independence and credibility of NHRC, we need members, who can make the state accountable in case of human rights violation. Suggestion to appoint someone representing Dalits, Adivasis, minorities and other marginalized community by opposition leader of Rajya Sabha was ignored. The time will tell whether J Arun Mishra would be able to maintain its credibility or not. This controversy raises the larger question of executive’s role in appointment of such an important post. The need of the hour is to review the process of appointment and role of executive in it. Previous appointments of H.L. Dattu and Cyriac Joseph also has been questioned by opposition leaders and other eminent persons.
As highlighted above, NHRC is very important institution, which raises human rights concerns of people. It has done remarkable work in dealing with custodial deaths and police torture. Though former chairperson H.L. Dattu referred it as toothless tiger due to lack of infrastructure, resources and less powers, it disposed more than 1700000 cases and paid more than Rs. 1 billion to the victims till 2018. To retain its credibility as a protector, monitor, adviser and educator of human rights, changes in appointment and functioning is required. Only minimal control of executive can ensure proper functioning of NHRC.
Saiyam Shah is a student of law pursuing his BA LLB from Auro University. (The opinions expressed in this publication are those of the author/s. They do not purport to reflect the opinions or views of The Policy Observer or our members.)
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