21 January, 2021

Tiger, Tiger Whining Bright!

What was supposed to be India’s watchdog against rights violations has turned into what critics call a government arm for obfuscation and occasional apologies

Tiger, Tiger Whining Bright!

In a 2016 interview to a leading national daily, former chief justice of India and then chairperson of the National Human Rights Commission (NHRC), H.L. Dattu, had lamented that he was heading a statutory body that was, in reality, a “toothless tiger”. The appellation was rei­terated by the Supreme Court, in 2017, while hearing a petition on extra-judicial killings in Manipur. The nation’s apex body for the protection of rights was called out by its own chief and the top court directed the Centre “to take note of the concerns of the NHRC and remedy them at the earliest”. These seem to have had little effect. From being a toothless tiger in 2016, the NHRC appears to have become, in 2020, one that also lost its will to even bare its fangs over growing ini­quities, and suffered an impaired vision that saw flagrant human rights violations only selectively.

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Continuing curbs on freedom in Kashmir met with a Nelson’s Eye from the NHRC but the lynching of three sadhus in Maharashtra’s Palghar immediately prompted the commission to seek an action-taken report from the state’s DGP. The commission saw a “wider conspiracy… organised under disguise of students” in the brutal police action witnessed in Jamia Millia Islamia University on December 15, 2019 but was silent when right-wing goons wreaked havoc at the Jawaharlal Nehru University campus on January 5. Politicians publicly incited violence with their “goli maaro…” slogans days ahead of the February 2020 Northeast Delhi riots evoked no response either. Through the Covid pandemic and the lockdown, the commission did little else besides issuing a ser­ies of ‘advisories’ to safeguard rights of different sections of soc­iety which were mostly forgotten as soon as they were issued.

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Senior advocate Colin Gonsalves says the brickbats coming NHRC’s way are not because it is a toothless tiger but on account of its “deceitful work” which has turned it into a “government arm for obfuscation and occasional apologies”. Gonsalves, founder of the Human Rights Law Network, tells Outlook, “Forget the mandate for a minute; NHRC members have their right to freedom of speech. Even if you claim your orders are not enforceable, why can’t an NHRC chairman or member stand up and unequivocally condemn killings and disappearances of innocent civilians in J&K or targeting of Muslims and Dalits?”

A senior NHRC functionary tells Outlook, on condition of anonymity, that the commission’s steady descent from being “a noisy watchdog” in the earlier phase of its 27-year existence into one “constantly whinging about its lack of teeth has been caused by a number of factors”. He concedes that there are “many shortcomings” in the Protection of Human Rights Act (PHRA), under which the NHRC was constituted, that “prevent the commission from making any meaningful intervention”. “In recent years, there has been a general lack of will among commission members to take the government or its agencies to task,” the functionary says, adding that NHRC members “even lack courage to ask the government for adequate allocation of res­ources or to fill vacancies”.

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In a country where scores of human rights violations are reported every day, the NHRC simply does not have the resources to investigate each of these cases. Posts of any consequence remain vacant for months. Dattu demitted off­ice on December 2. Nearly a month on, the commission remains headless even though the earlier provision in the PHRA that reserved the NHRC chief’s post for a former CJI was diluted last year to open the post for sitting and former judges of the apex court. The commission presently has three members—justice (retired) P.C. Pant, Jyotika Kalra and D.M. Mulay—while posts of the chairperson and another member are vacant. Similarly, posts of director general (investigation), director (administration) and two senior superintendents of police have been lying vacant for varying periods of time.

In a country where scores of human rights violations are reported daily, the NHRC does not have the resources to investigate each of these cases.

The PHRA Amendments passed in 2019 did little to strengthen the NHRC and were limited to rel­axing the eligibility criteria and changing the tenures of its members or those of state human rights commissions (SHRCs). Substantive amendments sought by former NHRC chiefs and rights’ activists over the years were never addressed. As way back as 1998, then NHRC chief, justice M.N. Venkatachalliah, had set up a committee to recommend possible amendments for strengthening the commission. Among the recommendations, reiterated by several of Venkatachalliah’s successors since, were greater financial and administrative autonomy, the power to enquire into human rights violations by the armed forces, power for NHRC to exercise control over SHRCs and power to invoke contempt against governments/agencies for failure to comply with NHRC’s orders. None of these recommendations have made it to the statute books.

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Gonsalves disagrees with the argument that the NHRC’s mandate is too limited to make any real difference but says the rights’ body “has no hope as long as its head remains a former CJI or any judge.” He says, “The past 15 years have shown that retired CJIs appointed to head the commission have no appetite for confronting the government; they are appointed not for their competence but because they are faithful to the government.” Lawyer and activist Teesta Setalvad says the PHRA desperately needs “serious amendments to preclude members of the police and administration from being part of the commission’s adjudication process”. The NHRC’s mandate inc­ludes investigation of extra-judicial killings by the police and egregious lapses by governments in upholding human rights. As such, it often has to probe the role of IPS and IAS officers in these incidents. The presence of IPS and IAS members on the NHRC Board “hampers the perspective and functioning” of the commission, says Setalvad, adding that the commission should include as members “civilians with a record of service in the protection of human rights”.

The commission’s last published annual report, for 2017-2018, lists over a dozen new initiatives, including organising hundreds of camp sittings and open hearings. Dig deeper to analyse what the NHRC actually achieved and this rosy picture turns into an unsettling portrait. Against a high of registering 1.17 lakh fresh cases of rights’ violation in 2015-2016, the commission registered 79,612 new complaints in 2017-2018 (as many as 38,659 of these were from UP alone). The sharp decline in new cases was curiously registered at a time when India was being called out at various international forums for violence against religious min­orities, increasing curbs on press freedom, crackdown on human rights defenders as seen in the infamous Bhima Koregaon case and a steady decline in its global ranking on the human rights and freedom indices.

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Official data also exposes the NHRC’s inability to fulfil its mandate. Of the 86,197 cases disposed by the commission in 2017-2018, a staggering 33,290 were “dismissed in limine”—or at the first hearing its­elf—suggesting a callous scrutiny. Further, in 2017-2018, the commission recommended a total payment of Rs 22.69 crore in compensation against 757 cases. It received compliance reports from Centre/state governments in just 151 of these cases; collectively amounting to a compensation dispersion of Rs 5.67 crore.

Dattu believes the disproportionately low level of compliance of NHRC missives is because the commission has “power to recommend relief but not to compel a government or its agency to enforce the order”. Setalvad says “lac­unae in the law is an excuse” routinely peddled by the NHRC. She says that though the NHRC’s inquiry report into the 2002 Gujarat riots was also “not binding” on the government, “the NHRC exercised its powers to its full cap­acity under the law… the then chief secretary downwards; retired and serving high court Judges were compelled to and did respond to it.”

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Activist Shabnam Hashmi insists that “if its orders are not complied with, the NHRC can approach the courts but it rarely does so”. Gonsalves adds “every NHRC chief will wax eloquent about taking up disability rights, women rights, Dalit rights but if you analyse the real work, you will find it’s only a cosmetic intervention. They’ll hold seminars or workshops on these issues but they’ll keep quite when a Rohith Vemula commits suicide; on the CAA they will keep quiet.”

If the only fight the NHRC can put up against these iniquities is by pleading for more powers for a “toothless tiger”, the commission might just beg to be euthanised—or it can muster all the energy of the beast and growl. 


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