Justice Arun Mishra is set to occupy the post of chairperson of the National Human Rights Commission of India. This clearance seems to have been granted by a five-member committee and the selection was opposed only by the Leader of Opposition, Mallikarjun Kharge.
Justice Mishra’s tenure as a judge at the Supreme Court was riddled with controversies (see here, here and here). Much need not be said about his conservative ideology and its impact on his decision-making powers. This is the judge who cleared CJI Ranjan Gogoi of his sexual harassment charge.
His appointment is a severe blow to India’s only national human rights institution which has been accredited by the Global Alliance of National Human Rights Institutions (GANHRI). Even though the NHRC is already an institute that is a mere skeleton of what it used to be, and has failed in living up to its duty of protecting and promoting human rights in India.
Justice Mishra’s appointment would not only confirm the Sub-Committee on Accreditation’s concerns regarding ex-Justices being appointed as the Chair of the NHRC, it could seriously harm India’s accreditation renewal. The appointment must serve as a reminder of what is wrong with the NHRC and why there is a need for its overhaul.
The National Human Rights Commission of India has enjoyed the privilege of an “A” level accreditation by the Sub-Committee on Accreditation of the GANHRI since 1993, when the Paris Principles were adopted.
Why is this accreditation important?
First, the accreditation takes place by essentially scoring NHRIs on the basis of their compliance with these Principles. Secondly, only institutions that possess an SCA accreditation are allowed to represent their nations at the UN Human Rights Commission. This accreditation is up for renewal every five years even for institutions with an “A” rating.
In 2017, the deferment of India’s accreditation renewal came as a rude shock. This deferral was attributed to the November 2016 report of the SCA where it had highlighted certain areas of concern and recommended further consideration. This deferral was short lived as India regained its “A” status in 2017 itself, after the SCA had been assured that steps had been taken by NHRC to address the concerns.
While this turn of events was fortunate, the statement that the NHRC had failed to fulfil its role in accordance with the Paris Principles deserves to be critically evaluated.
The appointment procedure
Independence from the government
The Office of the United Nations High Commissioner for Human Rights maintains that the role of an NHRI be as wide as possible, with two major responsibilities: human rights promotion and human rights protection.
All other responsibilities flow from these two broad roles. However, even more central to the functioning of an NHRI is its independence and autonomy from the government of the day. In light of this, it becomes relevant to note the appointment procedure.
This is usually undertaken by a committee of six, including the Prime Minister, Speaker of the House of the People, Home Minister, Leader of the Opposition in the House of the People, Leader of the Opposition in the Council of States and Deputy Chairman of the Council of the States (Section 4, Protection of Human Rights Act (PHRA), 1993).
While balanced on the face of it, such a composition ensures that the ruling party of the day gets a greater say in the appointment procedure of a commission in case the Deputy Chairman belongs to the ruling party (not required by law).
There have also been concerns regarding this committee of appointment because the Opposition does not really bother much with the process, allowing the appointment of questionable members to the Commission easily. The Opposition has indeed been quite often accused claiming ignorance while failing to keep the appointments in check. The fact that only five people constituted the Committee clearing Justice Mishra’s name is evidence of how little importance is granted to these appointments.
This is by no means the first time that a controversial appointment has been made to the NHRC. The NDA in its previous stint had appointed P.C. Sharma to the Commission. Sharma had earlier been CBI chief during the Babri Masjid riots investigation. Not only had the then Chairman tried to dissuade such an appointment, Ravi Nair of the South Asia Human Rights Documentation Centre had resigned in protest.
A plea was also filed before the Supreme Court by the People’s Union for Civil Liberties ((2005) 5 SCC 363 (Supreme Court)), wherein ultimately a textual interpretation concluded that the appointment of a police officer did not go against the enabling statute.
BJP’s Rajya Sabha candidate Avinash Rai Khanna’s selection as member also sets the NHRC up for criticism as a BJP-controlled institution.
Retired Justices as chairmen
The 2016 SCA report had highlighted concerns over the appointment of retired CJIs as chairmen of the Commission.
The Protection of Human Rights (Amendment) Act, therefore, sought to address this by allowing other Supreme Court judges to become eligible for the post. However, this move might not be the best idea.
Aside from the recent criticism of the judiciary, appointments of former Justices lend credibility to institutes they head, like the NGT. Merely increasing competition by making more judges eligible will not address problems. Instead, the importance of the appointment must be made clear. Perhaps it is time to devise a new model of appointment altogether, looking at a wider, more decentralised NHRC with more active members from the public.
On the issue of the composition of the NHRC, the SCA had said that the mandatory presence of members of the judiciary, with the Chairperson being a Chief Justice of the Supreme Court, restricts the pool of candidates.
However, the NHRC has somewhat tried to resolve this issue by recommending an increase in the number of members of which one would be a woman. It is quite surprising that even at this stage, the NHRC chooses to adopt a tokenistic approach in the appointment of women.
The appointment of Jyotika Kalra as one of the women members was also a move aimed at placating the SCA but has been marred by controversy. Apart from Kalra, the Commission has only had one woman member since 2004, Justice Sujata Manohar.
The present tally is five members, with one post still vacant.
Apart from the ex officio members, it is virtually impossible for marginalised communities to find themselves represented at the NHRC. The Protection of Human Rights (Amendment) Act does not talk about representation from any religious minority, the Scheduled Castes, the Scheduled Tribes or the LGBTQIA community.
Is the NHRC really toothless?
Not only members of the civil society, even the Supreme Court has pointed out how the NHRC is a “toothless tiger” – a body with limited powers apart from its recommendatory nature. Disregard of these recommendations by any state government is commonplace. While it is true that the body has limited powers, it certainly possesses the right to expose state governments and it is this failure to exercise powers that it does possess which is regrettable.
Inquiry into complaints
A cursory glance at pending cases relating to human rights in India would reveal that most such arrests have been closed after a superficial inquiry.
It must be noted that an extensive number of cases have been filed against human rights violations ranging from the arrest of journalist Siddiqui Kappan in the Hathras rape-murder case, to Sharjeel Imam from the anti-Citizenship Amendment Act protests, to Professor Hany Babu, one of the Elgar Parishad case accused, all categorised as cases relating to Human Rights Departments.
While these cases were since closed and removed from the Human Rights Commission Network website, what was interesting to note was that these complaints were closed citing judicial proceedings that are simultaneously underway.
The NHRC is known to cite Regulation 9(xi) of the NHRC (Procedure) Regulations 1997 to reject applications at the outset itself, wherever parallel proceedings are taking place.
This provision is often used even in cases where violation of the rights of undertrials is alleged against authorities, despite the fact that the issue falls clearly under the NHRC’s role as protector of human rights. A similar allegation of mass disposal of cases at the start itself had been raised in Kashmir too, with 99 cases against security agencies being dismissed without orders.
Accountability and transparency
There has been much criticism of the way the NHRC dealt with human rights violations in Chhattisgarh too, with closed door hearings.
This, despite the fact that the Commission has been given the status of a civil court, with all powers associated with the title (Section 13(4), PHRA). In a system where the police are no longer trusted with the handling of evidence, the NHRC ought to have asserted its presence by at least questioning the investigative practices and by intervening in the court proceedings running in parallel.
Sadly, the NHRC has been observed to be extremely lethargic in its handling of such sensitive issues, with tokenistic inquiries seldom leading to any conclusive action apart from the grant of compensation. This compensation is also not mandated by statutory right, contrary to India’s obligations under the International Covenant on Civil and Political Rights towards compensating wrongful arrests.
Performance of functions
Suo motu cognisance
Perhaps the most powerful quasi-judicial function of the NHRC is its ability to take suo motu cognisance of violation of human rights (Section 12, PHRA). However, there have been various instances wherein the NHRC failed to exercise this. This is no longer just an observation of outsiders, but Kalra also had a similar complaint against the institution and even resigned from her post before joining back, attracting controversy.
She had highlighted the issue in her resignation letter, available in media reports:
“Despite the fact that the PHR [Protection of Human Rights] Act gives power to the members to take suo moto cognisance of any human right[s] violation of their own, by an office order, members of the Commission have been divested of their powers, members can’t take cognisance of any human right[s] violations of their own. In furtherance of the same, new Regulations have been proposed, whereby the power of member, to take suo moto cognisance would no more be there.”
Review of Bills
The Commission was also initially appreciated for its review of certain Bills, presenting its own critical analysis from a human rights perspective. Some of these include the Terrorists and Disruptive Activities (Prevention) Act, 1985 (TADA); the Prevention of Terrorism Bill, 2000; the Prevention of Terrorism Ordinance, 2001 (POTO); the Freedom of Information Act; the Domestic Violence Bill; the Child Marriage Restraint Act, 1929; the National Rural Employment Guarantee Bill, 2004 and the Food Safety & Standards Bill, 2005.
However, in recent times, this function has been extremely selectively performed. Despite widespread protests against the Citizenship (Amendment) Bill in late 2019, the Commission failed to investigate these fears of human rights violations. Other legislations that have not been reviewed but were equally controversial are the Unlawful Activities Prevention Act (UAPA), Foreign Contribution Regulation Act (FCRA) and the National Investigation Agency Act (NIA).
It was only after Amnesty International had been forced to wind up following the FCRA Amendments that the NHRC woke up to take suo motu cognisance of the issue by serving a notice to the Ministry of Home Affairs.
The falling state of affairs is perhaps best visible on the website of the NHRC itself. Under the Significant Interventions/ Landmark Judgments section, the NHRC itself boasts only of two – its report on the Gujarat riots in 2002 and its role in the Batla House proceedings.
An institution that was hailed in the early 2000s for proactively protecting human rights has, of late, been in a deep sleep.
Which is not to say that the NHRC did look into the migrant labour crisis as well as the pandemic and the resultant human rights violations – as it should have.
But at present it appears to only push itself to perform the bare basics of its functions.
It has been argued that the leadership certain chairpersons before is what lent the NHRC its credibility in the past. If that is so, then there is an even greater need to rethink the structure of the NHRC. A body with such an important mandate cannot be left to the individual benevolence of its chairperson, no matter who it is.
Sania Abbasi is a fourth year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru.