Politician as Member is Another Nail in the Coffin of the National Human Rights Commission

Making a political appointment to the country’s top human rights body is a spectacularly cynical attempt at enfeebling the organisation that is meant to protect India’s vulnerable sections.

Avinash Rai Khanna, BJP national vice president and incharge of Jammu and Kashmir, has been appointed to the NHRC. Credit: Facebook

Avinash Rai Khanna, BJP national vice president and in charge of Jammu and Kashmir, has been appointed to the NHRC. Credit: Facebook

The Narendra Modi-led government will be remembered for many things, but one of its most damaging and lasting legacies will be its systematic and cynical erosion of the credibility and autonomy of a host of educational and cultural institutions, aimed transparently at curbing independent and dissenting liberal education and cultural expression. But even graver is it’s openly dismissive attitude to all democratic institutions for securing public accountability and probity.

There was, for instance, a nine-month delay in the appointment of the chief information commissioner and the central vigilance commissioner. A comparable delay of nine months marked the appointment of the chairperson of the National Human Rights Commission (NHRC), after the retirement of the last incumbent, Justice K.G. Balakrishnan, in May 2015. The statute prescribes that the chair would always be held by a retired chief justice of the Supreme Court. There were many eligible candidates, but the government chose to keep the position vacant until its chosen nominee, Justice H.L. Dattu, retired from the Supreme Court and was available for appointment.

The greatest blow to the independence of the NHRC was the decision by a panel headed by Modi to appoint BJP vice president Avinash Rai Khanna as a member of the commission. This is the first time an active politician has been appointed to the country’s highest human rights oversight institution.

The NHRC was envisaged by the statute under which it was created, the Protection of Human Rights Act, 1993, to be an independent, credible and powerful statutory instrument to hold all governments accountable for upholding human rights. These rights, as mandated by the Act, are “rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants”.

Its record of over two decades in this has been patchy, but under the leadership of Justice J.S. Verma, in 2002 it was severely critical of the Modi-led Gujarat state government for its failures to prevent the communal bloodbath that took the lives of more than a thousand Muslims, many gangraped and burnt alive. It issued many directions for relief and justice for the survivors, and even moved the Supreme Court to ensure justice in ways that had no precedent in the country’s history. Many feared that this is not an institution that Modi, now the country’s prime minister, would wish to function with true independence.

The long delay and obvious selectivity with which the chairperson was belatedly appointed did cause disquiet. But with the appointment of an active senior BJP leader to the commission, the prime minister clearly signals his strategy to reduce the country’s apex human rights institution to a toothless one which is subservient and ideologically compatible with the Hindutva ideology.

Khanna’s appointment

How did Khanna’s appointment come about? The NHRC has four full-time members who are selected by a panel chaired by the country’s prime minister. One of the full-time members has to be a retired Supreme Court judge and another member should be a former chief justice of a high court. The two other members must have “knowledge of, or practical experience in, matters relating to human rights”. The law lays down the process for the selection of the chairperson and members of the NHRC, who are to be selected by a high-level committee headed by the prime minister, with the Lok Sabha speaker, union home minister, leader of the opposition in the Lok Sabha, leader of the opposition in the Rajya Sabha and deputy chairman of the Rajya Sabha.

The extraordinary aspect of Khanna’s appointment is that there was no dissent to his selection. Even the leader of the opposition in the Rajya Sabha, Congress’s Ghulam Nabi Azad, agreed to the appointment without demur. After the wide public criticism of the appointment, Azad told the Indian Express that he concurred to the appointment because he was kept in the dark about Khanna’s political history. “We were unfortunately not kept in the loop… that he is an office-bearer of the BJP,” Azad said. Claiming that he was misled, he said: “We were not told that he is the (BJP) vice-president… We don’t keep track of who is the office-bearer of which political party. … We are given the bio-data, and he fell in the social (workers) category.” We find this defence by Azad curious because both are long-term members of the Rajya Sabha.

The People’s Union of Civil Liberties (PUCL) strongly condemned the decision. In a statement, it said, “The PUCL believes that this decision will harm the credibility, impartiality and effectiveness of the NHRC, which in the past has taken up issues of human rights abuses by government functionaries suo moto or on the basis of complaints and therefore, appointment of a politician of the ruling party… creates a conflict of interest.” Leading human rights lawyer Prashant Bhushan tweeted, “Modi govt’s alarming decimation of all Accountability Institutions continues with Appt of BJP’s JK VP as member NHRC”.

There has been a steady erosion of the principle of appointing persons with a history of credible work as human rights defenders to the Supreme Court. Many of the appointments are of civil servants. But it was once again with the last BJP-led government that for the first time another lakshman rekha was crossed, with the first appointment of a retired police officer to the NHRC as a member. A committee chaired by then Prime Minister Atal Behari Vajpayee in March 2004 appointed P.C. Sharma as a member of the NHRC, who had then recently retired as CBI director. There were allegations from the opposition that he ‘connived’ to sabotage the Ayodhya case and save deputy prime minister L.K. Advani in the Babri Masjid demolition case. He is also accused of dropping the charge of criminal conspiracy against Advani.

There is no legal bar against the appointment of active politicians to the NHRC. But it is obvious that if the NHRC is to retain any independence or credibility, the members should not be committed to advancing any party’s political agenda, particularly that of the ruling party. The double-speak of the ruling party about this, as about much else, if reflected in the opposition of Arun Jaitley as leader of the opposition of the Rajya Sabha to the appointment of former Supreme Court judge Cyriac Joseph in 2013, on the grounds that he allegedly had political links. But today a person who indisputably is an active and senior member of a political party is being appointed as a member by a committee chaired by the prime minister.

Khanna is not just an ordinary member of the BJP or not even just the party vice president. It is not insignificant that he is also the party leader in charge of Jammu and Kashmir, which is the epicentre in the country for some of the gravest human rights violations. At a time when, under a BJP-led government in the Centre and the party’s alliance with the PDP in the state, the Kashmir Valley is reeling under bullets and pellets blinding hundreds of dissenting youth, Khanna’s appointment is even more disquieting.

Khanna’s response to the inhuman repression in Kashmir is both instructive and worrying. Even as curfew continues beyond 100 days covering large parts of the countryside for the first time and public disaffection has arguably reached an all-time high, the BJP claims that the situation in Kashmir is returning to normalcy as people have rejected the ‘stone pelters and Hurriyat leaders’. “People have understood that peace is important for development and they are returning to it, fed up with violence,” said Khanna. He even said that had the BJP not been in coalition with the PDP, Jammu’s reaction to the situation in Valley would have been very grave. “Haven’t you seen how calm Jammu was in the last three months?” he asked.

With the appointment of this BJP vice president to the NHRC, we worry about the communalisation of India’s highest human rights defender institution. As one of the authors of this article (Harsh Mander) observed in a recent article in the Indian Express, the NHRC for much of its tenure has often been criticised for inaction during human rights violations in contexts of communal, caste and gender violence and discrimination, extra-judicial killings, torture and forced disappearances. However, a recent report by the NHRC for the first time opens it to grave criticism not just of inaction, but of actively contributing to a majoritarian communally charged discourse.

NHRC in Kairana

The NHRC’s team visited Muslim majority township Kairana in western Uttar Pradesh in which some Muslim survivors of the communal violence in 2013 had migrated after being uprooted following their villages because their homes and families had been attacked and they felt unsafe to return. The report in effect regards these Muslim migrants not as victims deserving the defence of the NHRC but as people responsible for contributing raised levels of crime and the harassment of women which resulted in the ‘exodus’ of law-abiding Hindu residents of Kairana. It stated that Muslim youth “pass lewd/taunting remarks against the females of the specific minority community in Kairana town”.

It is worth noting that this report of the NHRC came as a follow-up to a complaint from Monika Arora – a vocal RSS and BJP supporter. In the aftermath of the Bhopal ‘encounters’, in a recent blog post she writes, “Legal action must be taken against such persons” who dare to suggest that it could be a fake encounter even though there were way too many loopholes and contradictions in the police narrative. She continues, “They should be disowned by their own political parties. People should boycott them.”

The article by Mander observed that it is highly unfortunate that the NHRC report plays into the communal stereotype that dates back to the Partition riots of Muslim young men sexually harassing Hindu girls. This is even more irresponsible because it was precisely this charge against Muslim youths that sparked off the 2013 communal massacre that led to the killings, arson and forced exodus of Muslims from mixed villages in the regions. For the NHRC to accept these conclusions without any credible independent evidence of any kind reflects it unacceptable complicity in majoritarian communal rumour-mongering and stereotyping. It is significant that the union home minister Rajnath Singh visited Muzaffarnagar and Shamli during his election parivartan yatra and used the NHRC report to charge that “the self-respect of mothers and sisters is being looted in the region”. If elected the BJP “will see how much mother’s milk they (meaning Muslims) have drunk”.

There is a clear attempt on the part of the rulers today to ‘nationalise’ the Gujarat model of divisive politics. From Kashmir to Una, from Dadri to Bhopal, the emboldened followers of the ruling disposition are flouting respect for human dignity and life in many ways in the pursuit of their ideological agenda. This may be in the name of gau raksha, at other times the ‘war on terror’ or ‘akhand Bharat’, or ‘love jihad’ and so on. In such a context, it is of critical importance for the BJP to co-opt and sabotage the institution of the NHRC so as to not leave any credible and effective statutory oversight over its activities.

If the NHRC indeed is reduced to an instrument to advance divisive communal agendas, then this would be the death knell for the highest institution for the defence of human rights in India. The appointment by a committee chaired by the prime minister of a senior party leader of the ruling party is a spectacularly cynical attempt to enfeeble this institution for enforcing accountability of the state for violating the rights of its vulnerable citizens.