India’s National Human Rights Commission At Risk Of Losing Top-Level Ranking For Second Time Since 1999

24 May 2023 12 min read  Share

Lack of diversity in staff and leadership. Political interference in appointments. Involvement of police officers in investigations of human rights violations. Lack of cooperation with civil society. Insufficient action to protect marginalised groups. These are the reasons cited by a global alliance of human rights organisations in deferring, for the second time in nearly a quarter century, the accreditation of India’s National Human Rights Commission, for its highest rating.

NHRC Delegation led by Chairperson Arun Mishra accompanied by JS Anita Sinha at GANHRI annual meeting - March 16 2023.

Kolkata: Lack of diversity in staff and leadership. Political interference in appointments. Involvement of police officers in investigations of human rights violations. Lack of cooperation with civil society. Insufficient action to protect marginalised groups.

These are the reasons cited by a global alliance of human rights organisations in deferring the accreditation of India’s National Human Rights Commission (NHRC) for the second time in nearly a quarter century. 

If the NHRC, India’s apex body for the promotion and protection of human rights, does not address concerns and recommendations, it may be downgraded to ‘B’ status during the next review in 2024. If it corrects its failings, it will be re-accredited with top-rung ‘A’ status.

The NHRC’s ‘A’ status was put on hold during the latest round (20-24 March 2023) of accreditation by the Global Alliance of National Human Rights Institutions (GANHRI), which represents more than 110 human-rights organisations worldwide. 

The deferral, which came after the NHRC failed to address GANHRI concerns raised in 2017, followed a review and submissions made to it by national and global human-rights organisations, which urged it to take note of what they said was a worsening human-rights situation in India.

Neither the NHRC nor the government has issued a formal response to GANHRI’s review, which is done every five years. 

Article 14 sought comment over email from former Supreme Court Justice Arun Mishra, chairperson of the NHRC, the secretary general, the director general and the registrar of the Commission. There were no responses despite reminders over email and telephone.

Article 14 also sought comment from GANHRI chairperson Maryam Abdullah Al Attiyah, but there was no response. 

The global alliance works with the UN Human Rights Office, the United Nations Development Programme (UNDP) and other UN agencies, as well as with other international and regional organisations, NGOs, civil society and academia, reviewing the performance of national human rights institutions across the world.

This review gauges compliance with the Paris Principles, internationally recognised standards, which require national human rights institutions to have a broad mandate; inclusive, transparent selection and appointment process for the leadership; be independent both in law and practice; have access to sufficient resources and staff; and cooperate with national and international stakeholders.

An ‘A’ status is conferred on institutions that are fully compliant with the Principles. A  ‘B’ status indicates partial compliance. 

All national human rights institutions that hold an ‘A’ status are subject to re-accreditation every five years. Decisions on accreditation are deferred when institutions fail to comply fully with the Paris Principles

This is, as we said, the second time that the NHRC has lost its ‘A’ status since it was first categorised thus in 1999. The Commission retained its status in the 2006 and 2011 reviews. In 2016, its accreditation was deferred by 12 months; in November 2017, it was re-accredited as ‘A’.

‘Deferral  Reflects Human-Rights Situation’

At its March 2023 session, GANHRI’s sub committee on accreditation, which meets in Geneva twice every year to consider accreditation applications, deferred the review of India’s NHRC for 12 months.

If the NHRC does not address the sub committee’s concerns, it may be downgraded to B in the next review.

Similar treatment was meted out to national human rights institutions of only two other of 13 countries subjected to review—Costa Rica and Northern Ireland, where accreditation was deferred by 12 and six months respectively.

The Commission also “has not taken sufficient action in protecting the rights of marginalised groups,” and it “did not provide sufficient information with regards to how it implements its full mandate to monitor, promote, and protect the rights of everyone,” the sub committee noted.

The NHRC lost its ‘A’ status despite changes in its composition in line with recommendations made by the sub committee in 2017, and a reduction in the backlog and disposal time of complaints. The decision drew, in large measure, from advocacy by a range of civil society groups and international non-governmental organisations. 

Human rights groups and activists in India welcomed GANHRI’s decision, arguing that it reflected the deteriorating situation of human rights in the country, as well as the NHRC’s failure to come to the aid of human rights defenders. 

“The government’s official line is that India is the mother of all democracies, but there is little by way of a rights-based approach to governance, and the NHRC’s case is no different,” said Venkatesh Nayak, director, Commonwealth Human Rights Initiative, a think tank based in New Delhi. “Let alone adherence to the Paris Principles, it has even failed to deliver on its statutory mandate.”

The Protection of Human Rights Act 1993 requires that NHRC inquire into violations of human rights by state actors, either by addressing complaints from victims and defenders or by taking cognisance of violations of its own accord. Its statutory mandate is to protect human rights and establish accountability for their violation.

Nayak and other activists hoped the NHRC would use the opportunity for course correction instead of questioning the interests of those behind it, as the union government has consistently done with a variety of rankings (here, here, here, here and here).

NHRC Urged To Be More Diverse

In its 2017 recommendations, the GANHRI sub committee urged NHRC to address the lack of diversity within—there were no women or representatives from other marginalised social groups among five Commission members then, and only 20% of the staff were women.

An amendment to the Protection of Human Rights Act in 2019 sought to address these concerns. It increased the members of the Commission from five to six, including three persons and at least one woman with knowledge or practical experience of human rights. 

The amendment also made chairpersons of the National Commission for Backward Classes and the National Commission for Protection of Child Rights, and the Chief Commissioner for Persons with Disabilities deemed members of the NHRC.

Advocate Jyotika Kalra, who has filed several public interest litigations about women’s issues, including non-recruitment of women in the armed forces, was the only female member of the Commission 2017 onwards, but she retired in April 2022. The percentage of women among NHRC staff increased from 20% in 2017 to 24% in 2023.

Uptick in backlog clearance, case disposal time 

Meanwhile, a number of human rights activists who regularly filed appeals with the NHRC reported significant improvement in the time it took to clear cases and reduce their backlog. 

Though the Commission’s website does not provide any data on these issues, a former official, speaking on condition of anonymity, concurred with the activists. 

He attributed the improvements to digitisation of the complaint-redressal process and recruitment of nearly 35 junior law assistants, who examine cases received by the Commission daily. 

Both exercises had been on the anvil for some time, but were undertaken in earnest in the weeks after the nationwide Covid-19 lockdown in 2020, the source said. 

The NHRC leadership was likely aware that these improvements were not enough to get a top grade from GANHRI. 

This explains why, on 5 August 2022, about six months ahead of the review, the NHRC advertised a vacancy for a consultant on international affairs, who was expected to “deal with the matter related to GANHRI” and other international issues and agencies.  

Article 14 emailed questions on the need for such an expert and if someone was indeed hired to Justice Mishra, the secretary general, the director general and the registrar of the NHRC. There were no responses, despite reminders over email and phone.

The former official quoted previously said the Commission did not hire anyone eventually, as no suitable candidate was found.

Civil Liberties Ignored

The sub committee on accreditation provided a detailed analysis of NHRC’s deviation from the Paris Principles. 

The NHRC’s members, including the secretary general, were “seconded from public service”, the report said. Police officers were engaged in probing human rights violations, including those committed by police. There was no woman in NHRC’s leadership body. 

Three of six member positions—specifically those that required knowledge or practical experience of human rights—were vacant. Its process of application, screening, selection and appointment was neither “sufficiently broad and transparent,” nor formalised and consultative, the report said. 

These shortcomings affected the Commission’s “capacity to fully function independently,” as well as “the ability of victims to access human rights justice”, said the report.

The most scathing comments in the report pertained to NHRC’s record on addressing human rights issues, and cooperating with civil society. 

“The relationship between the NHRC and civil society is not effective or constructive,” particularly with respect to the Commission’s core group on non-government organisations and human rights defenders, said the GANHRI report.

This was corroborated by civil society groups and activists in India.

“The current core committee has several exceptionally qualified members, but the NHRC leadership has no idea about how to use their expertise,” said Henri Tiphagne, who was a member of NHRC’s core group on non-government organisations from 2003 to 2011. 

“Meetings are held only once in a year or so, and there is neither any agenda, nor follow-up,” said Tiphagne, now national working secretary of the All India Network of NGOs and Individuals Working with National and State Human Rights.

The report acknowledged NHRC’s claim of considering all cases of human rights violations, but expressed concern over the high number of complaints “apparently dismissed at the very first stage” and the lack of any information on how they were addressed and/or followed up. 

The report said the Commission had failed “to exercise its mandate in relation to reviewing laws regarding civil liberties and fundamental rights”, such as the Foreign Contribution (Regulation) Act or FCRA 2010, the Citizenship (Amendment) Act  or CAA 2019, and the Unlawful Activities (Prevention) Act or UAPA 1967. 

The Bharatiya Janata Party government of Prime Minister Narendra Modi has, in combination with national-interest narratives and surveillance technology, used these laws to stifle dissent and create a security playbook, as Article 14 reported in March 2022. 

The targets of such government action include advocacy groups and think tanks, such as Amnesty International, the Centre for Policy Research and the Commonwealth Human Rights Initiative, whose FCRA licenses were cancelled or withheld by the Ministry of Home Affairs.

Criticism From Civil Society

Ahead of the latest review, a number of civil society groups and NGOs submitted statements to GANHRI alleging the NHRC’s non-compliance with the Paris Principles. 

In October 2022, two civil society platforms—the All India Network of NGOs and Individuals Working with National and State Human Rights, and the Asian NGO Network on National Human Rights Institutions— made a joint submission to the GANHRI sub committee, urging it to defer the NHRC’s accreditation till it complied with the Paris Principles. 

The 68-page submission, endorsed by 72 organisations and 84 individuals within India, correlated earlier recommendations of the sub committee with the human-rights situation in India since the previous review, including changes in laws, major incidents of human-rights violation and the functioning of the NHRC. 

The submission criticised NHRC’s silence on numerous incidents of hate speech, mob lynching, online abuse/auction of Muslim women, targeting of human rights defenders, including the Bhima-Koregaon case, and discriminatory changes in law, including to the CAA, the FCRA and the abrogation of Article 370 of the Indian Constitution in 2019. 

The submission provided case studies of NHRC’s handling of specific complaints—such as those pertaining to police violence and repression of anti-CAA protests; the incarceration of the late Jesuit priest Father Stan Swamy, who defended the constitutional rights of adivasis and Dalits; G N Saibaba, who taught English in Delhi University; and activist Sarfoora Zagar, who participated in anti-CAA protests—urging the sub committee “to see through this farce and note the non-compliance with the Paris Principles”.

Global Organisations Join Indian Criticism

On 9 March, a similar submission was made to the GANHRI chairperson Maryam Abdullah Al Attiyah by seven international organisations. They included Amnesty International, Christian Solidarity Worldwide, Frontline Defenders, Human Rights Watch, International Commission of Jurists, International Federation for Human Rights and World Organisation Against Torture

The submission expressed “deep concerns regarding the commission’s lack of independence, pluralism, diversity, and accountability.” 

It said the NHRC selection process was dominated by the government: the six-member committee that appointed the chair included the Prime Minister, the home minister, speaker of the Lok Sabha, deputy chair of the Rajya Sabha and the leader of the Opposition in the Lok Sabha and Rajya Sabha, respectively. 

This lack of independence, the submission said, accounted for the appointment of former Supreme Court judge Arun Mishra as chair of the Commission in May 2021. 

Mishra had delivered several judgments in favour of the government and against marginalised and vulnerable populations, and his appointment prompted widespread criticism from legal experts and human rights groups. 

Mishra’s tenure, law professors Anup Surendranath and Aparna Chandra and lawyer Suchindran Baskar Narayan wrote in Article 14 in September 2021, was riven with controversy and decisions that hove to government interest.

“Justice Mishra’s tenure epitomised the very worst tendencies and practices of the present day Supreme Court as an institution,” they wrote.

The global advocacy organisations in their submission said, “The commission has also proven unwilling to work with human rights organizations to address growing attacks on the rights to freedom of expression and peaceful assembly.” 

They urged the GANHRI subcommittee to “evaluate NHRC’s rating carefully during the accreditation process”.

The NHRC’s Belligerence

Civil society groups and activists hoped that both the government and the NHRC would take the deferral of the Commission’s accreditation “in the right spirit,” rather than question the intent of those offering criticism.  

Some said the NHRC could correct course, if it chose to. 

“In 2009, the Malaysian counterpart of NHRC, called SUHAKAM, utilised a similar opportunity and came up with an ordinance that brought about a lot of constructive changes,” said Tiphagne, the former NHRC core group member quoted earlier. “As a result, Malaysian civil society and the general public today gets the service of a stronger human rights institution.” 

Tighagne said the NHRC could regain its ‘A’ status by evolving an “action plan” on each of the GANHRI sub committee recommendations, with specific strategies, indicators and timeline.

Others hoped the NHRC would refrain from attacking civil society groups and its own former members, as it had done in the past .

For instance, in 2011, former NHRC chairperson (1999-2003) Justice JS Verma released a report by the All India Network of NGOs and Individuals working with National and State Human Rights at the Constitution Club in Delhi, which was critical of the NHRC. 

The Commission issued a belligerent rebuttal following the release of the report, saying those behind it had not made “any contribution” to the NHRC despite repeated requests, and were “only interested in criticizing the NHRC only to distort public perception and faith in it.”

“We hope that this time, the NHRC will not label those who provided inputs to GANHRI as anti-national or question the methodology of accreditation, since it involves peer review,” said Nayak, the CHRI director. 

(Aritra Bhattacharya is a journalist and researcher based in Kolkata.)

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