In a 6 July 2007 letter responding to the 2006 annual report on human rights defenders by the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), India’s National Human Rights Commission (NHRC) “disdainfully disagree[d]” with what it called the report’s “diatribes” against India. (The full text of letter is available at http://www.nhrc.nic.in/Word-image.doc.) That is, the NHRC disagreed with the report’s conclusion that India comes up short in its protection of human rights defenders. In so doing and in carelessly using florid language to respond to a relatively credible and detailed report, the NHRC makes a mockery of its own mission. Unfortunately, rather than being concerned primarily with human rights and those who defend them in India, the NHRC seems more concerned with burnishing the government’s reputation for foreign audiences. 

Though we have criticised the Commission in the past and disagreed with some of its positions and tactics, we have generally respected the intellectual quality of its work. In contrast, it is hard to believe that this letter could have been approved by the members of the Commission. If it was not, and its signatory Mrs. Aruna Sharma, the Commission’s Joint Secretary, wrote this missive on her own initiative, we must ask how she was permitted to do so on the Commission’s letterhead and how this letter was permitted to be posted on the Commission’s home page. 

The OMCT-FIDH Report 

The joint OMCT-FIDH 2006 annual report entitled “Steadfast in Protest” (available at http://www.omct.org/pdf/Observatory/2007/observatoire_rapport_annuel2006_eng.pdf) focuses on the situation of human rights defenders worldwide, with numerous examples drawn from specific countries. With respect to India, the report identifies 14 individuals by name who had been arrested or otherwise subject to criminal investigations by Indian authorities, or who had their work disrupted by government action or inaction. Government interventions mentioned in the report ranged from the grave — such as the de facto indefinite detention and forced feeding of Irom Sharmila who has been on a hunger strike for seven years in protest against a draconian special security law — to the petty — such as the government’s refusal to grant Association of Parents of Disappeared Persons founder Parvez Imroz a passport to go to France to collect a human rights award.  

In addition to its listing of individual defenders and a discussion of their grievances, the OMCT-FIDH report also briefly discusses several pieces of legislation in India under the heading “Increased criminalisation of human rights activities”. Most of this section of the report discusses a proposed amendment to India’s already very restrictive Foreign Contribution Regulation Act (FCRA). According to the report, the proposed amended law would enable “the government… to control which organisations received foreign contributions, from whom, and for what purpose” in part by banning “the acceptance and use of foreign contributions for ‘any activity prejudicial to national interests’”. The only other piece of legislation discussed is the 2006 amendment to the Protection of Human Rights Act (PHRA) — the NHRC’s founding statute — with the report’s conclusion being that the amendment did not go far enough to remedy some of the PHRA’s flaws. 

The NHRC’s Letter: Overreaction, Disinformation, and Betrayal of Principles 

It is true that the OMCT-FIDH report is hardly complimentary. But is the job of human rights organisations to critique, not praise. And it is mystifying as to why the NHRC thinks such criticism amounts to a “diatribe” (“a bitter and violent criticism” or “an invective” according to the Oxford English Dictionary). There is nothing bitter or violent about the detailed briefs the report makes on behalf of the 14 defenders it profiles. Nor is the discussion of Indian legislation an invective. Rather, it is a measured analysis, which in large part, quotes directly from the text of the legislation and makes logical inferences therefrom. One may disagree with the report’s conclusions, but why, to again borrow its own term, has the NHRC done so “disdainfully”? 

The answer lies, in part, in what the letter does not say as much as what it does say. Even though the NHRC’s letter begins with the categorical declaration that “[t]he report is completely unfounded, uncalled-for an either based on poor research or insinuation”, it limits itself almost entirely to commenting on the brief section relating to amendments to the FCRA and PHRA discussed above. In response to some six pages of specific allegations—many well-documented—of government misconduct and intransigence targeting specifically-named human rights defenders in India, the NHRC had nothing to say. That is, nothing but a blanket denial that such allegations were “completely unfounded”. 

The NHRC’s agenda in refusing to engage with much of the substance of the OMCT-FIDH report is evident from the remainder of the letter, which quickly transitions from colourful language attacking the report to similarly colourful language extolling the virtues of the Constitution, the Government and the Court. The reader is informed that “the Constitution of India provides for the enjoyment of Fundamental Rights”; that “[t]he Government has a firm and abiding commitment to [the Constitution]”; and that “[t]he Supreme Court of India is the sentinel of Fundamental Rights”.  

All of this is well and good, of course, but what does this have to do with the practical grassroots issues tackled in the OMCT-FIDH report? After all, even the most repressive regimes of the former communist bloc had rather impressive formal guarantees of rights “provided for” in their Constitutions, and they even regularly expressed their commitment to such rights in public; but of course such rights were mere words on paper worth no more than the empty promises to enforce them. In short, the NHRC’s legal formalism is so breathtakingly obtuse as to not be worthy of a national human rights institution. 

If the NHRC’s letter had stopped there, that would have been bad enough. However, it goes on to attack the OMCT-FIDH report by attempting to justify the need for the FCRA and an amendment strengthening it. Just to be clear for those who are not familiar with this piece of legislation, the FCRA is no neutral law, but rather a draconian holdover passed more than 30 years ago in the midst of India’s flirtation with autocracy during the Emergency. The FCRA places a stranglehold on all foreign funding for NGOs in India by requiring them to register with the Home Ministry and receive their permission before obtaining monies from overseas. Whereas in other countries, registration of NGOs might be a routine and relatively effortless process, in India, it is heavily politicised, bureaucratised, and ultimately not subject to any formal guidelines or procedures. FCRA approval is a matter of political expediency at the discretion of the Home Ministry. Human rights projects that the Government considers uncontroversial such as AIDS orphans or dowry deaths are relatively easily approved for foreign funding. Projects dealing with human rights violations that call into question the authority of the security apparatus, such as killings by security forces in Kashmir or even incidents of routine torture in jails, find their applications stalled, rejected or approved only on the basis of restrictive conditions.  

It is not merely the NGO community that has expressed opposition to the FCRA and its 2006 amendment. Nobel prize winning economist Amartya Sen has called the proposed law “alarming”. Former Reserve Bank of India Governor and Member of Parliament Bimal Jalan sent a letter to the Home Minister lobbying against what he called its “authoritarian” provisions. N.K. Singh, a former high-level bureaucrat in a number of ministries who once served as the Prime Minister’s chief economic adviser, has written that the entire scheme of NGO registration under the FCRA “needs a quick burial”. The New Delhi-based newspaper Business Standard aptly likened the FCRA to a “license-permit Raj for NGOs” and called the bill strengthening the law a “disgrace”. The OMCT-FIDH report was not merely reproducing the criticisms of members of the NGO community in India, but also echoing the opinions of some rather substantial thinkers outside that community, some of whom have long careers of distinguished public service. 

Even if it were just human rights NGOs “crying foul” as the letter erroneously suggests, the NHRC’s new policy position on the FCRA — that there is no reason for anyone to object to it—is profoundly discouraging. Aside from even acknowledging the legitimate concerns of the NGO community — once praised by the NHRC as “its natural allies, sternest critics and indispensable partners” — the NHRC’s letter suggests that NGOs who question this law or any law passed by Parliament are somehow suspect or disloyal. 

Conclusion 

Why should anyone in the human rights community take the NHRC seriously after a letter such as this? Showing its true colours as an apologist for government excesses and as a cheerleader for India’s image overseas, the NHRC has become more than a disappointment. It has become a hindrance to human rights protection in India by seeking to burnish the Indian government’s reputation rather than attempting to address the very real problems on the ground.

Letters of this kind usually emanate from the government’s publicity departments. Then again, perhaps the NHRC has found itself a new mandate.

 Human Rights Features