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Multiplicity of human rights institutions

By Swagata Raha

The proliferation of HRIs to inquire into human rights, women and child rights, minority rights and SC/ST rights has not translated into better protection of human rights as the state machinery remains largely indifferent to them. Is it time to look at the possibility of a merged institution?

Establishment of HRIs in India

India has seven national human rights institutions (HRIs) known as commissions, with varying structures, powers and mandates that have been established with a view to promoting and protecting human rights, women’s rights, children’s rights, rights of minorities, and the rights of persons belonging to scheduled castes and scheduled tribes. Except for the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes (NCST), which have been provided for under the Constitution, all other human rights institutions at the national level have been established through legislation.

The functions of these commissions include evaluation of existing safeguards for human rights protection and making recommendations for strengthening them, inquiry into complaints of human rights violations, inspection of custodial institutions, creation of awareness about rights, promotion of harmony between domestic laws and international conventions, and research and analysis on human rights issues. They have all been empowered with certain powers of a civil court while looking into the violation of rights. After the completion of inquiry, they can recommend that the government or public authorities initiate proceedings against those responsible for the violation, pay compensation, or take further steps to remedy the violation. Although their recommendations have no binding value, these commissions are seen as alternative forums that have the potential to offer speedy, accessible, and inexpensive relief.

The Protection of Human Rights Act, 1993 (PHR Act) and the CPCR Act, 2005 also provide a framework for the establishment of commissions at the state level and have vested the state governments with the discretion to constitute the commissions. Owing to lethargy on the part of the states, only 20 have set up the State Human Rights Commission (SHRC) and 14 have constituted the State Commission for Protection of Child Rights (CPCR). Some commissions were established only because the high courts had directed the state government to do so (1).  However, some of these institutions exist only on paper and some do not function because of poor infrastructure, lack of staff, and the reluctance of the government in appointing a chairperson and members (2).

How independent are HRIs in India?

According to the Principles relating to the Status of National Institutions, 1993 (Paris Principles), a set of internationally accepted minimum standards that states must aim to comply with while establishing a national human rights institution, HRIs must be functionally and financially independent. They must not be controlled by the government and must have adequate funding that allows them to have their own staff and premises. The Paris Principles and other international guidelines and best practices on human rights institutions lay unequivocal emphasis on the independence of these institutions (3). The term ‘independence’ has to be understood in its fullest sense as signifying foundational, functional and operational, and financial independence. Foundational independence depends on the manner in which the institution has been brought into existence, its composition, and the process followed to appoint members. The appointment process should be fair, transparent, and bereft of political influence. Operational autonomy stems from the authority to appoint staff and take administrative decisions. Financial independence is very critical as dependence on the government for funds can stymie the effectiveness of an oversight authority.

In order to discharge its mandate effectively, a human rights institution must be absolutely independent of governmental and political control or interference. It must distance itself from the government whose policies and actions it is expected to scrutinise and inquire into. Further, it must strive to ensure that it is not perceived as a government department or an NGO. The former is likely to compromise its credibility, and the latter might earn it the label of being ‘pro-NGO’.  

Commissions in India enjoy varying degrees of independence. For instance, the National Human Rights Commission (NHRC) is headed by a former chief justice of the Supreme Court, while the chairperson of the National Commission for Women (NCW) has nearly always been a political appointee. The executive exclusively determines the appointment of chairperson and members of all the commissions except the NHRC where appointments are based on the recommendations of a high-powered selection committee comprising representatives of parliament and the executive. The extent of political control over some commissions is more than others. For instance, a change in government at the Centre in 2005 led to the dismissal of members appointed by the previous government (4). All the commissions except the CPCRs have been empowered to frame their own regulations. Further, the National Commission for the Protection of Rights of Children (NCPCR) has to seek the approval of the government before incurring expenditure under certain heads (5) and must abide by the directions of the central government on “questions of policy relating to national purposes” (6). The NHRC can appoint technical staff and the NCPCR can constitute a panel of consultants. However, all commissions are dependent on the government for their establishment, infrastructure, staff, and grants. Though an appropriation is made by parliament, the funds are routed through a ministry. The mandate of the NHRC is limited to inquiring into complaints of violation of human rights or abetment or negligence in the prevention of such violations by public servants. The NCW and NCPCR, on the other hand, can look into complaints relating to deprivation of women’s rights and child rights, respectively, irrespective of whether the complaints relate to public servants or private entities. Because of its composition and powers, the NHRC is perceived as being more independent than others.

Do we need multiple human rights institutions?

Most commissions have earned the reputation of being post-retirement hubs for bureaucrats and a parking lot for members of political parties with no background in or understanding of human rights. This is borne out by facts which indicate that the present chairperson of the NCSC (7) is also a Member of Parliament while the chairpersons of the NCST (8), NCW (9), and the Orissa SCPCR are former MP, MLA, and minister, respectively. The chairperson of the National Commission for Minorities is a retired member of the Indian Administrative Service (10). Although the PHR Act requires that persons with knowledge of or experience in human rights be appointed members, retired bureaucrats have predominantly occupied the position of member. Political appointees and bureaucrats often lack the necessary qualifications and do not inspire confidence in the independence of the commission.

The non-binding nature of recommendations made by the commissions often evokes the sentiment that these commissions do not serve any purpose. Some commissions have openly raised the issue of governmental indifference and refusal to act on recommendations (11). At the state level, commissions fail to take off or fulfil their mandate because of the government’s tardiness in providing them space, staff, finances, and infrastructure. Civil society has also expressed its disappointment over their inefficacy and has tagged them ‘toothless’.

The commissions in India have emerged in response to international and domestic pressures, and barring the NHRC, which has a general mandate, they have been vested with a special mandate. They are premised on the belief that they can protect and promote the rights of a special group more effectively than a single institution with a broad mandate. However, such an approach raises several questions. Does it not ‘undermine the principle of the indivisibility of rights’? (12) Is it efficacious to have multiple institutions with a different composition, mandate, and powers? Will the existence of institutions devoted to issues of a particular group lead to better protection and promotion of their rights? Will they help avoid the risk of prioritising the interests of one group over others? On the other hand, the presence of these institutions has also led to duplication of efforts and simultaneous inquiries, and it is debatable whether they serve as one among many options for a victim of a human rights violation.

In an article on the issue of one versus multiple human rights institutions, Richard Carver reviewed the international legal framework and observed that there is no clear principle or guideline on this matter and that the decision must be driven by the ‘pragmatism and effectiveness’ (13) of the options. Based on these considerations, he states that a single institution is preferable as: ‘…generally the model of a single national human rights institution is likely to lead to greater effectiveness, provided that it is designed with inbuilt guarantees that the interests of particular vulnerable groups will not be neglected and will receive an appropriate level of priority. A single institution offers several clear advantages. It will work within a coherent legal framework with consistent powers in relation to all vulnerable groups. It will maximise institutional resources, avoiding duplication and sharing best practice. It will be more accessible to vulnerable groups and better able to address cases of multiple discrimination. It will exercise greater authority in relation to governmental and other bodies and will offer a clear, comprehensible public profile on human rights issues.’ (14)

He acknowledges that a single institution may be looked upon as being cost-effective by government, but terms this ‘irrelevant’ as it ‘is hard to see the validity in human rights terms of an argument that says that money should be spent wastefully, simply in order that the human rights budget not be cut’ (15). Carver cites the examples of the United Kingdom, Croatia, Sweden, and Australia where multiple institutions were merged to form one single human rights institution.

In India, the composition, mandate, functions, and powers of human rights institutions vary. Carver also makes an important point about the need for equal protection of rights of victims of human rights violations, a service that can be provided consistently only by a single institution (16). This right stands diluted owing to the difference in powers and mandate of multiple institutions. Should a victim not be equally protected no matter which commission he/she may appear before? As commissions are prohibited from looking into complaints before another commission, an ignorant victim should not have to suffer for not approaching the ‘appropriate’ body in the first instance.

The downside of multiple institutions with different powers and mandates is that it leads to inconsistencies in the handling of issues affecting different groups (17). The difference in stature of the chairperson and members in each of the commissions often determines their relationship with government departments and the seriousness with which their recommendations are regarded. On the other hand, it is also cumbersome for officials to deal with and respond to different commissions instead of a single institution. The commissions often cite inadequacy of infrastructure, staff, resources, and funds as critical factors that hinder their effectiveness. Whether or not we need multiple institutions with varying powers and structures at the national and state level to protect and promote the rights of various groups requires close examination.

Conclusion

The proliferation of HRIs at the national and state level has not necessarily translated into better protection of human rights as the state machinery remains largely indifferent towards them. The presence of multiple institutions has also led to parallel inquiries and turf wars which have resulted in loss of considerable time and resources, and secondary victimisation of victims of violations. The merits and demerits of a merged institution vis-à-vis existing institutions need to be looked at.

Nevertheless, there is a definite need for greater cooperation and coordination between HRIs at the national and state level so that considered and effective responses are framed to address issues of overlapping concern. The Protection of Human Rights Act, 1993 (PHR Act) is the only legislation which provides a platform for coordination between some of these institutions at the national level. According to Section 3(3) of the PHR Act, the chairpersons of the NCW, NCM, NCSC, and NCST are deemed to be members of the NHRC for the purpose of discharge of all functions other than inquiry into complaints. The chairperson or member of the NCPCR attends the meetings of the full commission as a special invitee. However, these meetings are usually held only once a year.

At an Inter-Commission Dialogue on Child Rights in India, organised by the Centre for Child and the Law, representatives of six national commissions and chairpersons of various state commissions agreed that commissions must collaborate on policy issues and make joint recommendations to the government as collective action would likely elicit better results (18). They also agreed on the need to develop an integrated complaints registration mechanism that would aid detection of complaints filed before multiple authorities. Pending law reform, a coordinated approach is probably the only way in which HRIs can posit themselves as strong, effective and independent monitors of human rights.

Note: The author has relied on research undertaken at the Centre for Child and the Law, NLSIU, on a project titled ‘Justice to Children through Independent Human Rights Institutions’ and a report she co-authored titled ‘A Review of the Working of the Karnataka State Human Rights Commission and the Karnataka State Commission for Women’, Daksh & Accountability Initiative, April 2011, at http://www.accountabilityindia.in/sites/default/files/daksh_kshrc_kscw_apr_2011.pdf

(Swagata Raha works as an independent human rights researcher based in New Delhi. She has extensively researched and written on human rights institutions in India)

Endnotes

1 In People’s Union for Civil Liberties vs Union of India, 1999 (4) Bom CR 608, the Bombay High Court directed the state of Maharashtra to establish a State Human Rights Commission. Similar directions were issued by the high courts of Allahabad (People’s Union for Civil Liberties vs State of Uttar Pradesh, AIR 2000 All 103) and Karnataka (Shri P Hanumanthappa vs the Home Secretary, the State of Karnataka, decided on 05.12.2006). In the states of Jharkhand, Uttar Pradesh, Manipur and Punjab and Haryana, the respective high courts had directed the state governments to establish SCPCRs
2 The position of chairperson in seven SHRCs is lying vacant while not all six members have been appointed in 12 SCPCRs. While all states have established a State Commission for Women (SCW), this does not necessarily imply that they are active or functional. In Karnataka, for instance, a chairperson was appointed after a gap of three-and-a-half years. SCWs in Arunachal Pradesh, Andhra Pradesh, Chhattisgarh, Maharashtra, Karnataka, Rajasthan, Manipur, Meghalaya and Mizoram are functioning without members. Thirteen state governments have enacted legislation that provide for the establishment of a State Minorities Commission and the states of Manipur and Uttarakhand have constituted non-statutory commissions, that is institutions that have not been created under a statute
3 International Council on Human Rights Policy, Assessing the Effectiveness of National Human Rights Institutions, Switzerland: ICHRP, 2005; Commonwealth Secretariat, National Human Rights Institutions Best Practice, London: Commonwealth Secretariat, 2001, at http://www.asiapacificforum.net/members/international-standards/downloads/best-practice-for-nhris/nhri_best_practice.pdf; National Human Rights Institutions -- Amnesty International’s Recommendations on Effective Protection and Promotion of Human Rights, 2001, at http://www.amnesty.org/en/library/asset/IOR40/007/2001/en/3c676e38-d8e3-11dd-ad8c-f3d4445c118e/ior400072001en.html
4 Anon, ‘Expulsion of NCW Members Degrading and Unconstitutional’, Deccan Herald, May 29, 2005, http://archive.deccanherald.com/Deccanherald/may292005/national1841462005528.asp; Anon, ‘UPA Axe Falls on Three NCW Members’, The New Indian Express, May 21, 2005, http://www.hvk.org/articles/0505/62.html 
5 Rule 24 (3) of the National Commission for Protection of Child Rights Rules, 2006 states: “The chairperson shall obtain prior approval of the central government in matters of creation of posts, revision of pay scales, procurement of vehicles, re-appropriation of funds from one head to another, permitting any officer of the commission to participate in seminars, conferences, or training programmes abroad and such other matters determined by the central government, by order.”
6 Section 33, Commissions for Protection of Child Rights Act, 2005
7 Profile, P L Punia, http://ncsc.nic.in/writereaddata/sublinkimages/156.pdf
8 http://www.ncst.nic.in/writereaddata/linkimages/Biodata-Rameshwar%20Oraon-CP2880148912.pdf
9 http://ncw.nic.in/frmCurrentCommission.aspx
10 http://ncm.nic.in/Wajahat Habibullah.html
11 Sugata Srinivasaraju, ‘Drill Them All Into Line’, Outlook, May 24, 2010, http://www.outlookindia.com/article.aspx?265435
12 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 11
13 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 21
14 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at pp 2-3
15 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 14
16 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at pp 13-14
17 Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take To Protect Human Rights? -- Lessons from the European Experience’, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 2
18 Centre for Child and the Law, Inter-Commission Dialogue on Child Rights in India -- A Report, http://www.nls.ac.in/ccl/justicetochildren/ReportCommissionDialogue.pdf, Centre for Child and the Law, Proposed Plan of Action for a Coordinated Response of Human Rights Institutions to Child Rights, Suggested Plan of Action Emerging out of the Inter-Commission Dialogue on Child Rights, organised by Centre for Child and the Law, National Law School of India University in partnership with UNICEF-India Country Office, on February 22, 2012, New Delhi, p 22, at http://www.nls.ac.in/ccl/cclsuugested/ICD%20annexures/AnnexureB-ICDpalnofaction.pdf

Infochange News & Features, March 2013