HRF/131/05
30 November 2005
Talking ESCRs
But can the Indian NHRC walk the talk?
For a country that has traditionally touted economic, social and cultural rights (ESCRs) as being of particular, indeed, primary, importance, how does India measure up? Further, as a statutory body charged with the protection and promotion of human rights, how effectively has India’s National Human Rights Commission (NHRC) implemented its mandate in the area of ESCRs?
To be sure, India has plenty to crow about, particularly in the area of jurisprudence on ESCRs. The Supreme Court’s interpretation of the right to life as encompassing the right to livelihood, which has consequently brought within its purview the upholding of the Constitution’s ‘Directive Principles of State Policy’ as justiciable rights, is one of the judiciary’s crowning achievements. The utilisation of this avenue of protection has since been led by public interest litigations submitted by civil society organisations in India.
But to what extent have ESCRs been realised – progressively or otherwise – in practice? And as the NHRC goes through the motions of a three-day seminar with 24 other national human rights institutions from around the world to “exchange views and experiences in order to improve the delivery of [ESCRs]”, can we expect it to draw useful lessons from this exercise?
Not for action
Past experiences, it appears, have not exactly helped influence the NHRC’s thinking. Consider its record. At the domestic level, the NHRC has carried out certain commendable research projects relative to ESCRs, although this is difficult to ascertain upon searching the NHRC’s website (www.nhrc.nic.in). Amongst these is “A Study to Assess the Promotion of Economic, Social and Cultural Rights in India”, entrusted to the National Centre for Advocacy Studies. Although this report has been completed it has not been made public. The same applies to the Core Advisory Group on Health, constituted by the Commission and “comprising of eminent medical experts with a request to prepare a plan of action for systemic improvements in the health delivery systems of the country.”
The last two published reports of the Commission, dated 2001-2 and 2002-3, only address the right to health among the entire panoply of ESCRs. While the 2002 report addresses employment in the context of harassment in the workplace, and education in the context of children and bonded labour, it does not illustrate any substantive consideration of the right to housing, employment, or education as rights to which all are entitled, and the ongoing deprivation of these rights in India. The highlights of the NHRC’s 2003 Annual Report, the last to have been tabled in Parliament, include such activities as “monitoring” the situation in districts that reported starvations deaths, “insist[ing]” on the right to free and compulsory education, and holding consultations on public health and on HIV/AIDS.
The Commission has never offered recommendations on the realisation of ESCRs subject to the availability of resources in India – an elementary starting point.
Another aspect of the Commission’s role and functioning is that of complaints receiving. While the definition of “human rights” in India’s Protection of Human Rights Act (PHRA) incorporates ESCRs, the NHRC receives very few complaints of this nature. The reasons for this may be several, but one aspect of this may derive from the manner in which the Commission’s complaint form is designed. Firstly, the form requires that a complaint must be made against an individual public servant. In the denial of ESCRs, an individual perpetrator is not always so easily identifiable. Further, the complaints form stipulates that complaints are not ordinarily entertainable if “the issue raised relates to service matters” of “the issue raised relates to labour/industrial disputes”.
A perusal of the 2003Annual Report highlights only one notable ESCR case, the “Measures to prevent deaths due to Starvation: Orissa Case No.37/3/97-LD.” There is little else to point to by way of activism on the part of the NHRC.
‘International’ is a dirty word
The ongoing conference (29 November – 1 December) will discuss, among other things, “state obligations to respect, promote, protect and fulfil (sic) ESCR” and to “examine international and regional mechanisms available for the protection and promotion of ESCR”. Since key non-governmental organisations do not appear to have been invited to the conference – SAHRDC, understandably, was not – the scope and quality of the discussions will not be known immediately. However, from previous experience, it can only be surmised that on the above issues, the Indian NHRC will have little to contribute in this area by way of “views and experiences”.
Sample this gem from NHRC Chairperson Justice A.S. Anand, speaking to a mediaperson on the sidelines of the 61st session of the UN Commission on Human Rights: “When it is between States, the NHRC does not come into way [sic].” The Chairperson was responding to a question about India’s actions at the UN Commission, particularly the not-so-progressive stance the Indian delegation was taking on a number of human rights issues. The Indian NHRC seems to believe that its mandate is confined to acting within the domestic frontier and that international deliberations on human rights are only a matter for States.
India’s regressive positions on important human rights initiatives and developments have gone unremarked – and uncontested – thanks to the NHRC’s flawed understanding of its mandate.
For example, one of the discussion points at the ongoing seminar will be the ‘Optional Protocol of Convention [sic] on Economic, Social and Cultural Rights’. It will be interesting to learn what the Indian NHRC has to say here, in the light of Justice Anand’s “between States” argument. The NHRC must surely be aware that India has been holding up the development of the optional protocol, which, on adoption by the UN Commission on Human Rights, will allow for individual complaints on ESCRs to be sent to the ESCR monitoring committee. And yet, at no point has the NHRC taken the government to task for opposing such a mechanism.
India has been at the vanguard of countries that oppose this process. The UN Working Group for the Consideration of the Drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has affirmed, and clarified ad nauseum, how an optional protocol would work, and how it would substantially contribute to strengthening the justiciability of ESCRs worldwide by “giving rise to a legal process that would allow individuals to bring their claims before an international forum in those situations where national recourse has been found wanting.” At the same time, the sponsors of this initiative, Portugal, have had to fend off the hostile reactions of a disparate coterie that includes China, the United States, and India. The mandate of the Working Group ends in February 2006, and the decision will come before the UN Commission on Human Rights in April 2006 on whether to move forward to the drafting of an optional protocol. Gauging by past performance, India will move to oppose it.
The Commission‘s 2005 resolution on the Working Group was merely procedural, welcoming their work and looking forward to their forthcoming recommendations. However, in 2004 the resolution concerned the continuation of their mandate until 2007, and it was here that India expressed that it is “premature” to consider developing an optional protocol as there is no clear standard of measuring ‘progressive realization’, and therefore monitoring State compliance would be virtually impossible. At the voting stage, India joined Australia, Bhutan, Nepal, Pakistan, Saudi Arabia, Sierra Leone, Sri Lanka and the US in supporting Pakistan’s amendment to refuse an invitation to a member of the UN Committee on Economic, Social, and Cultural Rights to address the Working Group. It is clear from this type of stonewalling that India is opposed to a form of justiciability that exists beyond the realm of national sovereignty.
When NHRC officials attend the 2006 session of the Commission on Human Rights, will they discard their customary reticence and speak out in favour of this process? Or, will we be again treated to bland statements – often, stretching beyond the designated speaking time – of the NHRC’s not-so-impressive achievements?
Lean and live
Finally, in view of the NHRC” previously stated desire to “learn of civil-society initiatives to help people claim their economic, social and cultural rights”, it is ironic – if not hypocritical – that the NHRC has chosen not to invite groups such as the Right to Food Campaign and the Narmada Bachao Andolan to such a conference. For, it is these groups that have been at the forefront of efforts to secure these rights in India, not the NHRC.
Perhaps even more baffling is the failure to invite the Asia Pacific Forum of National Human Rights Institutions (APF) – a regional network of national institutions – which has taken up the justiciability of ESCRs as the terms of reference for its Advisory Council of Jurists at next year’s Annual Meeting. These are intended to detail the roles and responsibilities of national institutions in the region, and the reciprocal value of their participation would be obvious. If the genuine objective is to move forward, then such aversions are unfortunate, if not antithetical to the spirit of promoting and protecting human rights.
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