The Protection of Human Rights (Amendment) Bill, 2005, does little to improve the Indian NHRC’s prospects

On 7 July 2006, the Cabinet of Ministers of the Government of India announced that the Protection of Human Rights (Amendment) Bill, 2005 [“hereafter “Amendment Bill”], would be tabled before the Lok Sabha – the Lower House of the Indian Parliament – during the 2006 Monsoon session scheduled to take place from 24 July until 30 August 2006.  

The bill seeks to amend the Protection of Human Rights Act, 1993 (PHRA), which established the National Human Rights Commission of India (NHRC). The PHRA has long been in need of amendment. It has been criticised by independent NGOs and the NHRC itself for the limitations its places on the NHRC’s powers, independence and effectiveness. 

The first attempt to revise the Act comes 12 years after the establishment of the NHRC. The Amendment Bill fails, however, to address the concerns expressed by civil society and by the NHRC itself during the past 12 years. In fact, apart from two half-hearted attempts to upgrade the monitoring powers of the NHRC, the Amendment Bill actually contains regressive provisions that will actually further undermine the NHRC’s independence and functioning. 

Prison visits 

First, the good news. Under the PHRA [Section 12(c)], the NHRC could visit jails or other institutions under the control of State Governments only after intimation, thus giving advance warning to the authorities in those institutions and allowing them time to prepare for the visit with a view to projecting an inaccurate picture. The Amendment Bill proposes doing away with the requirement of prior intimation ahead of prison visits, thus enabling surprise visits and empowering the NHRC to form an opinion on the actual conditions inside prisons.  

However, while the amendment is a positive step, it does not go all the way. The NHRC should have the power to inspect without advance warning all jails, institutions, and other detention centers, including informal holding centres. This should apply not merely to jails and institutions under the State Government, but also to detention and interrogation centers used by the Army and paramilitary forces across the country. There is also the need for the NHRC to actively investigate the existence of illegal detention centres in states like Jammu and Kashmir. The NHRC has been severely shackled when it comes to inquiring into human rights violations by the Army and paramilitary forces, and granting it the power to visit all detention centres would have been a useful step towards minimising such violations. 

International conventions 

Under the PHRA, the definition of ‘International Covenants’ is restricted to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This provision in the PHRA falls far short of the conditions prescribed by the United Nations ‘Principles relating to the status and functioning of national institutions for the protection and promotion of human rights’, (‘the Paris Principles’), which are the minimum international standards for national human rights institutions. The Paris Principles stipulate that institutions must seek to harmonise national legislation with the international instruments to which the State is party. 

However, the Amendment Bill promises no great improvement. It seeks to expand on the PHRA by extending the definition to cover “such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify”. However, this still does not fulfil the Paris Principles since it does not even cover the instruments India has ratified. 

The procrastination is legendary. For example, the Indian government has been staving off ratification of the UN Convention Against Torture for nine long years on the grounds of “technical” problems. There is little reason to expect that the Central Government will “specify” additional international human right instruments for the NHRC’s consideration in a hurry. 

Appointment of Chairperson and Members 

The Amendment Bill proposes that “no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy or absence of any member in the [Selection] Committee”. The intended implication of this provision is clear, and derives from the controversial appointment of a former police official as NHRC member in 2004. Civil liberties organisations had challenged the appointment of Mr. P.C. Sharma, former chief of the Central Bureau of Investigation, on several grounds, one of them being the fact that the consultation process that led to his appointment had been inadequate as one of the members of the Appointments Committee had been absent from the discussions. 

The proposed amendment is undoubtedly aimed at pre-empting future challenges to appointments such as Mr. Sharma’s. 

Further, it is not as if the Appointments Committee can be relied upon to make independent judgments on NHRC appointments. It 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 is therefore not assured. 

The implication of this provision is that it can conveniently be used or misused by the government for selection of candidates using absence or vacancy in the Committee. The purpose of having a proper Selection Committee comprising individuals like the Prime Minister, Speaker of the Lok Sabha, Leader of Opposition in the Rajya Sabha and Deputy Chairperson of the Rajya Sabha establishing a fine balance, is defeated by such a provision. Justice Santosh Hegde held that the PHRA did not expressly mandate the presence of all members of the Selection Committee and that if one out of six did not respond the appointment would not be vitiated. Pre-empting the possibility of a different interpretation by the courts, the government, by way of this proposed amendment, is attempting to legitimise an undemocratic method of appointment. 

Another amendment provides for an expansion of the eligibility criterion for the Chairpersons of the NHRC and SHRCs allowing other judges of the Supreme Court and High Courts respectively, with a minimum of three and five years experience, to be considered. The earlier stipulation of having retired chief justices as Chairpersons was to invest the SHRCs and NHRC with a certain moral authority. While on the surface this change may not mean much, it will signify a diminution of the moral authority of the human rights commissions. The number of retired justices is enormous and many of them are available for post retirement appointments. It makes little sense for the Chairperson of the NHRC, a post of importance and prominence, to be filled by a retired justice when there are retired Chief Justices available for the post. 

More powers for the Secretary General 

One of the amendments clearly detrimental to the protection of human rights concerns the enhanced powers of the Secretary General of the NHRC. The Amendment Bill seeks to empower the Chairperson to delegate functions to the Secretary-General, a serving civil servant, who is appointed directly by the Central Government. This risks further undermining the independence and credibility of the NHRC since an overwhelming proportion of its staff is on deputation from other government departments, including, notably, from the Intelligence Bureau. 

Inquiries 

While there is a provision enabling the NHRC and the SHRCs to make interim recommendations during an inquiry is welcome, it is of limited utility as the Commissions can only make recommendations that are largely persuasive in nature.  

Conclusion 

The Amendment Bill could have been an opportunity to bring about substantive changes in the way the NHRC functions. However, this is clearly not intended. 

The NHRC, over the years since its formation, has underlined the weaknesses in the PHRA to the central government in its annual reports. Calls for amendments to the PHRA were ignored, and finally in 1998 the NHRC initiated a comprehensive and independent examination conducted by a committee headed by Justice A.M. Ahmadi to review the PHRA. The Ahmadi committee submitted a Draft Amendment Bill to the NHRC incorporating all the subsequent proposals and also new structural amendments for the PHRA. In particular, the Ahmadi Committee suggested revising the PHRA to give greater financial independence to the NHRC. The NHRC forwarded the Draft Amendment Bill to the Central Government, which ignored the proposals. 

The Amendment Bill does little to address the fundamental weaknesses of the PHRA. The omissions are glaring. There is no attempt to address the desperate need to have the NHRC independently inquire into human rights violations by the armed forces. Nor does the Amendment Bill seek to empower the Commission to initiate proceedings for prosecution and grant interim compensation as it may consider necessary, restricting its role to making recommendations. The need to guarantee the NHRC’s financial independence has not been considered necessary. Finally, there has been no attempt to expand the NHRC’s mandate so that it can inquire into cases of human rights violations that took place more than a year ago. 

The establishment of the NHRC in 1993 was tainted by the fact that it was intended to be a rejoinder to the international opprobrium the Indian government had been receiving on human rights, particularly on the human rights situation in Jammu and Kashmir. The promotion and protection of human rights was furthest from the mind of the government of the day. Twelve years on, the half-hearted amendments sought to the Protection of Human Rights Act indicate that little has changed.

 Human Rights Features