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Tuesday, July 19, 2016

Has The NHRC Failed Its Mandate To Protect And Promote Human Rights In India?

By LIKHAVEER | INNLIVE

The Supreme Court's interim AFSPA judgement suggests that it may examine the role of the 'toothless tiger'.

In an interim judgement on extra-judicial killings of alleged “terrorists, militants or insurgents” by the police and the armed forces in Manipur, the Supreme Court has once again reiterated its commitment to the rule of law and human rights.

The division bench comprising of Justice Madan B Lokur and Justice Uday Umesh Lalit, meticulously examined various contentious issues, including the Armed Forces Special Powers Act or AFSPA, and upheld citizens’ basic fundamental rights, even in territories experiencing internal disturbances.

While lamenting the existing situation, which has fostered an environment of impunity especially in “disturbed areas” and failed to provide effective remedies for the families of fake encounter victims, the court also placed the spotlight on the National Human Rights Commission’s role as a statutory body mandated to protect and promote human rights in India. Indeed, NHRC as an independent watchdog is envisaged to take appropriate steps in such cases with vigour and enthusiasm. However, the opposite seems to be true.

'Toothless tiger'
The NHRC being a “toothless tiger” was a refrain that echoed throughout the judgment, an expression which the Commission appears to have become accustomed to, and one which has even been accepted by it with the acknowledgement of its present Chairperson.

However, the question persists: Has the NHRC failed to maximise its strengths and come up with novel manners of countering systematic rights violations such as in Manipur?

Further, does the lack of support on the part of governments at the Centre and State level justify the seemingly half-hearted measures on the part of the NHRC?

In the present case, in addition to underscoring its statutory limitations, the NHRC took the stage before the Court to place the blame on the Central and the State Governments who were criticised for not taking it seriously.

The Central government has been ignoring its requests to recruit more staff which is leading to long delays and inability to follow up on steps undertaken, said the NHRC, while also insisting that it has released specific guidelines in 1997 to act as safeguards in instances of deaths due to encounters by the police. These guidelines have since been amended twice owing to experiences of States who were either not following the guidelines in their “true spirit” or dismissing them altogether as being merely recommendatory, leading to a compromised procedural safety net against illegal extra-judicial killings.

Valid criticism
The arguments of the NHRC did not impress the Supreme Court which criticised it mainly on two grounds.

First, the Court pointed to an affidavit filed by the NHRC in relation to the alleged fake encounter killings in Manipur which it described as “extremely vague”. In its affidavit, the NHRC only stated that it had held a 3-days camp in Imphal, Manipur, in October 2013 to “consider pending complaints of extra-judicial killings by the armed forces/police”. It had awarded monetary relief in five cases in this camp, the NHRC said, but the documents presented to the Court only contained proceedings relating to one of those cases, while no information was given on any other matters considered.

Second, on a perusal of the cases closed by the NHRC which were also the subject-matter before the Court, the Court observed that some of these complaints had “been closed without any application of mind and simply because of the conclusion arrived at in the Magisterial Enquiry report, which is really an administrative report”. This exclusive reliance on the magisterial enquiry reports suggested a worrisome aspect, the Court said, as it was also the NHRC own contention that these reports in most cases were of “poor quality” which did not even examine the victims’ families or independent witnesses. Eventually, the Court decided not to consider the Magisterial Enquiry reports altogether, which practically quashed the pet recommendation of the NHRC in its guidelines with respect to such enquiries acting as a critical procedural safeguard in matters of extra-judicial deaths.

In this way, the Court may have highlighted the half-hearted efforts of the NHRC both in terms of its actual proceedings as also its guidelines. Also, the Court’s adverse observations may also have endorsed the view of the first Director General (Investigation) of the NHRC who recently said:

“Instead of bemoaning its lack of powers, NHRC has to play a more proactive and transformative role for the advancement of human rights in the country”.

However, that is not to say that the NHRC hasn’t faced its own share of problems and obstacles. In fact, most of its grievances, specifically, pertaining to its infirmity in taking actions against members of the armed forces and the unwillingness of the States to adhere to its non-binding directions, are genuine. Nonetheless, whether it has done enough till now or whether it is prepared to step up once provided with more “teeth to bite” are issues which it must genuinely introspect at the earliest.

Perhaps, the Court’s intention to consider the critical issue of the NHRC being a “toothless tiger” in its final judgment may finally resolve the issue and fast track the Commission’s intended relevant contribution to the fundamental human rights and rule of law in India. Until then, even the Supreme Court couldn’t hide its sarcasm when it said,

“….it is pointed out (perhaps with a tinge of frustration) that the petitioners might not be very wrong in describing the NHRC as a toothless tiger!”.
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