A Case of Respectability

No more playing cops-and-sleuths in Faridkot House

The legal challenge to the appointment of Mr. P.C. Sharma, former director of the Central Bureau of Investigation, to India’s National Human Rights Commission (NHRC) has resulted in a split decision by the Supreme Court of India. While Justice Y.K. Sabharwal ruled against the appointment, Justice D.M. Dharmadhikari held that the appointment had conformed to all legal procedures and requirements, and was therefore valid. The case will now be heard by a larger bench.

There is, nevertheless, even at this interim stage, a lesson for the government. For, even if the legal procedures in this appointment were followed, it still does not absolve the government of its responsibility, in this case as well as in future cases, of ensuring that such appointments are above board, and more importantly, seen to be above board.  

Question of Credibility

 At the core of the issue is the credibility of the NHRC. As Justice Sabharwal emphasised in his order, the NHRC is a high-powered statutory body functioning as an instrument to protect and promote human rights, and “the credibility of such an institution depends upon [a] high degree of public confidence”.

Again, as Justice Sabharwal pointed out, “[a]n individual Police officer may be very good but his participation in decision making as a member of the Commission is likely to give rise to a reasonable apprehension in the minds of the citizens that he may sub-consciously influence the functioning of the Commission. Such reasonable perception[s] of the affected parties are relevant considerations to ensure the continued public confidence in the credibility and impartiality of institution like NHRC.” 

Public confidence is clearly nowhere at the top of the government’s agenda – neither the Central Government’s, nor the States’. If it was, the NHRC’s annual reports would not have been stowed away in the Ministry of Home Affairs, waiting to be presented to Parliament. The annual report for 2002-2003 has only recently been tabled in Parliament – in December 2004. If public confidence was indeed on the agenda, the NHRC’s directions would be complied with as a matter of priority. State Human Rights Commissions would have been established in every state. The dismal performance of the existent state human rights commissions would be reason enough to bring them under the purview of the NHRC. 

Eligibility 

In addition to the general impropriety on part of a career police officer to accept a position on a human rights monitoring body, Mr. Sharma also lacks the necessary qualifications for membership of the NHRC. Section 3 of the Protection of Human Rights Act stipulates that the four members of the NHRC shall include one former judge of the Supreme Court, one former Chief Justice of a High Court and two persons having knowledge of, or practical experience in, matters relating to human rights. Mr. Sharma does not have either a judicial or a human rights background.  

Further, as Justice Sabharwal’s order states, “A Police officer may be very good investigator.  He may have vast experience in respect of the nature of commission of crime and consequentially its prevention.  But, for the present purposes what is relevant to be borne in mind is that [a] number of cases reported to NHRC relate to acts of omission and commission by the members of such forces.”  

The order also questioned the utility of having a former police officer serve as a Member of the NHRC on the grounds that the NHRC could put his expertise in investigation to good use. “[T]he knowledge or practical experience in relation to commission of crime, investigation and solving a crime which may show violation of human rights is one thing and the knowledge or experience relating to protection of life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India is altogether different,” Justice Sabharwal observed. “The requirement of section 3 (2)(d) – relating to the constitution of the Commission”, he held, “is of [the] latter and not [the] former.”  

Amendments to the Protection of Human Rights Act  

SAHRDC has long advocated the raising of the bar. According to Section 4 of India's Protection of Human Rights Act 1993 - the enabling legislation for the setting up of the National Human Rights Commission - the President of India appoints the Chairperson and other members of the Commission based on the recommendations of a Committee comprising of the Prime Minister of India, the Speaker of the Lok Sabha (lower house of Parliament), the Home Minister, the leader of the opposition in the Lok Sabha and Rajya Sabha (upper house of Parliament) and the Deputy Chair of the Rajya Sabha.  

The Appointments Committee is not free from political influence and in practice recommendations evince a pro-government stance. The opposition is given two spots in the Committee and the representatives of the Government form two-thirds majority in the Committee. Independence in the appointment committee, as is insisted upon by the Paris Principles – the minimum criteria for the establishment and functioning of national human rights institutions – is therefore not assured. Thus, while an appointment may have been carried out with due regard to the consultation process, it is worth examining if the process itself is adequate, in letter and in spirit.  

The Protection of Human Rights Act 1993 specifies that the Commission shall be headed by a person who has been Chief Justice of India. The other members shall include a former judge of the Supreme Court, former Chief Justice of a High Court, and experts in matters relating to human rights. The current NHRC membership comprises two former judicial officers and one retired police official. There are two vacancies. Chairpersons of the National Commission for Minorities, National Commission for the Scheduled Castes and Tribes and the National Commission for Women are ex-officio members.   

Although, the legal fraternity has been represented in the NHRC, persons having knowledge and experience in the field of human rights (the Act provides for two such persons) have no representation in the NHRC. It seems unlikely that a Commission meant to protect and promote human rights can achieve its objective without giving any representation to those who work directly for the cause of human rights and are aware of the various issues that need to be addressed in this area. If the Commission is to be represented only by present and former public servants, a true and fair representation of the human rights situation in India cannot be expected.   

The enabling legislation setting up the Commission is restrictive in scope so far as membership is concerned and fails to guarantee a pluralistic membership to the Commission as is required by the Paris Principles, thus violating the standards in practice.  

What next?  

Hopefully not a former chief of the Intelligence Bureau. As SAHRDC has pointed out in the past, a significant percentage of NHRC staff is drawn from the Intelligence Bureau. In a functioning democracy, this should be considered sacrilege. Those who belong to the intelligence community, on becoming part of the NHRC, must resign from their parent cadre and agree to be absorbed as regular NHRC staff. The NHRC, most of all, cannot allow for dual loyalties in its serving personnel.   

With more vacancies arising in the NHRC, it is incumbent on the government to ensure that future appointments are made with the utmost discretion. There is a vast pool of human rights expertise in this country that the government can tap into. It is inconceivable that from the entire range of available human rights lawyers, activists, and academics, the government could only find a person who has had no human rights experience worth the name. Mr. Sharma’s official profile on the NHRC website is proof of the inadequacy of his credentials. Any more dubious appointments will serve to greatly lower the prestige of the NHRC, both domestically and internationally.  

Get cracking 

The NHRC will also need to engage in some activism of its own, for its own sake. This, the Commission has been reluctant to do. With India's free and vibrant press the NHRC could have developed a dynamic relationship and used newspaper columns and television interviews as a platform.  In its engagement with peer networks and other human rights bodies at the international level, it could be more forthcoming about its problems, and use them as a sounding board.  

Instead, when questioned about its work, ability, or bottlenecks encountered, the NHRC's reaction is to go on the defensive. It appears to do no introspection, and its approach to inquiries and suggestions is, at best subdued and aloof, at worst, prevaricating.  

With non-governmental organisations, which continue to regard the NHRC with hope and promise, the NHRC could have established a transparent and constructive method of interaction, one that goes beyond token meetings and perfunctory, dead-end discussions. Meetings of the NHRC’s Core Committee of NGOs are desultory exercises in defensiveness on the part of NHRC officials, and repeated attempts by some NGO Core Committee members to elicit concrete action from the NHRC on substantive issues have failed. The NHRC’s failure to act on – or even comprehensively discuss – the appointments issue prompted the resignation of Ravi Nair, Executive Director of the South Asia Human Rights Documentation Centre (SAHRDC) from the NGO Core Committee in December 2004. That leaves only two human rights activists on the Committee - Mr. Y.P. Chhibber of the People’s Union for Civil Liberties (PUCL) and Henri Tiphagne of People’s Watch, Tamil Nadu.   

The Indian NHRC was among the first to be established in the Asian region. It was hoped that it would serve as an inspiration, a blueprint for other upcoming NHRIs throughout the region. It now appears that it is more likely to show other NHRIs the way to the bottom.   

The corrosion from within must halt immediately. Let the physical relocation to Faridkot House be the start of a new innings.

 Human Rights Features