India’s National Human Rights Commission (NHRC) is charged with holding the Government of India accountable for its record on human rights. Unfortunately, all too often in recent years, it has failed to do so. Although much criticism of the NHRC’s structural shortcomings should be directed at the Indian government for deliberately designing a weak institution, the NHRC is not powerless. Its tendency to respond to criticism either by pointing to its lack of formal authority or by reciting a laundry list of formal (but often unused) powers reveals a poverty of imagination and initiative that has only grown more acute over time. 

Are NHRC annual reports de facto state secrets? 

None of the NHRC’s annual reports after the April 2004-March 2005 report have been brought before Parliament. These unreleased reports have already lost much of their purpose as a means of holding the government accountable and as an advocacy tool of the Commission. The message communicated by such delays was clearly and succinctly stated by former Delhi High Court Chief Justice Rajindar Sachar in the Times of India: “[T]he attitude of all governments, including the present one, is to ignore human rights issues and undermine the NHRC.” 

We share the NHRC’s understandable frustration with this state of affairs, and applaud its repeated insistence in past annual reports that the Government consider its reports more expeditiously. However, the NHRC has taken little public action in the last several years to continue to press this issue, and whatever lobbying it may have done behind the scenes appears to have been ineffective. 

After so much government stonewalling, it is time for the NHRC to begin publishing its reports within a reasonable time of their preparation even if they have not yet been officially tabled by Parliament. Nothing in the Protection of Human Rights Act (PHRA) explicitly prohibits the NHRC from submitting reports to the Government and also simultaneously releasing them to Parliament and to the public. In fact, the NHRC already publishes some of the sort of information that would go into an annual report in its monthly newsletter and discloses it in public speeches. 

The NHRC’s other underused powers 

Aside from neglecting its human rights reporting powers, the NHRC has recommended compensation for victims of human rights abuses and prosecution of perpetrators far too sparingly for far too long. It has done so only in an exceedingly small proportion of the cases it has considered—some 600 cases out of hundreds of thousands of individual complaints submitted as of its last available annual report. In a speech in October 2006 (as reported in PUCL Bulletin, January 2007), acting Chairperson Justice Shivraj V. Patil claimed that compensation had been paid in 716 cases and that 637,009 cases had been filed with the Commission until the end of September 2006. The Commission’s record on recommendations for prosecution is even worse.  

Further, the awards recommended have been modest at best. In its last publicly available annual report (2004-2005), the Commission noted that 

[s]ince its establishment in October 1993, the Commission has directed that interim relief to the extent of Rs. 10,07,12,634/- to be paid in 617 cases. During the year 2004-05, the Commission recommended that interim relief amounting to Rs. 23,27,000/- be paid in 46 cases, including 12 cases of deaths in police/judicial custody. 

These compensation statistics amount to an average compensation recommendation of just over Rs. 160,000 per case over the life of the Commission, and an average compensation recommendation of some Rs. 50,600 per case during 2004-2005. Although these averages do obscure some variability in award amounts, even the more sizable awards recommended for families of those killed by security forces only amounted to Rs. 200,000 per family during the 2004-2005 period. In contrast, a 17-year-old girl gang raped by police officers received a recommendation for an award just under the average size of awards in 2004-2005—Rs. 50,000. 

What is the metric by which the Commission decides on the amount of compensation to be awarded? In the rape case mentioned above, the State of Tripura had already compensated the victim with a payment of Rs. 15,000, but the Commission rejected this payment as too low because “the offence of rape not only amounts to violation of the human rights of the victim, but it also tends to violate the mind and scar the psyche of a person permanently. Besides, it carries a social stigma for the victim and her family.” But if the Commission is correct in its analysis of the permanent psychological and social effects of rape—as we believe it is—then why limit compensation to only Rs. 50,000? 

There is a punitive component to these awards, not just a compensatory one. Awards should be fashioned to make it prohibitively expensive for agents of the state to commit serious human rights abuses—not so low that there is essentially a human rights abuse market where death sells for Rs. 200,000 and rape for Rs. 50,000. 

Moreover, with the possible exception of a number of cases of child and bonded labour, the Commission in its 2004-2005 annual report does not recount recommendations of criminal prosecutions or efforts to follow up on prosecutions already initiated by State and Central Government authorities without the Commission’s prodding. 

In his October 2006 speech, Justice Patil reportedly claimed that, during its 13 years, the NHRC had “recommended disciplinary action in 223 cases and prosecution in 74 cases against” state actors who were suspected of committing human rights violations. In comparison, the Commission stated in its 2002-2003 annual report that it had recommended disciplinary action or prosecution in a total of 295 cases. The implication is that, between the end of March 2003 and the end of September 2006, the Commission recommended prosecution or disciplinary action in only two instances. 

That ‘vision’ thing: A media-driven Commission? 

The NHRC is charged under the PHRA with investigating individual human rights complaints as well as initiating suo motu investigations. But the current proliferation of notices being sent by the NHRC is worrisome. It bespeaks a potentially superficial approach to human rights protection issues that is more responsive to the mass media than to the underlying needs of human rights victims in India. To be clear, we are sympathetic to the Commission’s desire to increase its public profile and to improve its institutional legitimacy. However, the NHRC must be more strategic in launching and framing its suo motu investigations. 

Because the Commission’s investigative resources are already being stretched thin by the crush of individual complaints, it should be wary of any approach that encourages recipients of its investigative notices to treat them as junk mail. The Commission investigated 2,805 cases during 2004-2005, out of the 85,661 cases it dealt with during that same time period—47,213 of which it considered on substantive grounds and 38,448 it dismissed “in limine”, that is, on procedural grounds. Thus, the Commission only had the resources to investigate just over three percent of all the cases it considered during 2004-2005, a figure that only rises to six percent if one excludes all of the procedurally-faulty cases which may not have required investigation. 

Furthermore, it is imperative that in its notices and press releases the Commission connect an individual instance of an alleged violation with a broader trend in society or with a larger programmatic goal. For example, in its press release of 29 August 2007 regarding the police in Bhagalpur in the state of Bihar who joined a crowd in beating a suspected thief and dragged him behind a motorcycle, the NHRC missed a golden opportunity. The NHRC could have pointed out that the abuse meted out to Mohammad Aurangzeb was unusual only for the fact that it was captured on film. A wide range of observers of civil rights in India—from foreign governments to international and Indian NGOs—all agree that torture and abuse is routinely used by police and security forces in India even against those accused only of petty crimes. Even the Commission’s first Chairperson “[r]eferr[ed] to the prevalence of third-degree methods as a reason for custodial death”. At the very least, the NHRC should have used Mohammad Aurangzeb’s name in its press release if only to hint ever so obliquely that perhaps his religious  identity had something to do with the police’s outrageous behaviour—an echo of the much deadlier sort of discrimination demonstrated by the police force in Gujarat in 2002. 

Conclusion 

Until it rediscovers a modicum of the independence, initiative, and creativity it had initially displayed, the NHRC will continue to be an ineffective check upon human rights abuses perpetrated by agents of the state. Despite its dearth of formal powers, the early Commission and its leadership did not accept the government’s conception of it as a tool to burnish India’s human rights record at home and abroad. It thought of itself as a bona fide national human rights institution and acted accordingly. It was in this realm of perception and of moral authority that the Commission’s fragile power lay.

 Human Rights Features