In What Ways are Human Rights Protected

Historically human rights have been seen to hold essentially against the State of which one is a member. [1] The implementation of international human rights treaties instruments and obligations are eventually national issues, and it is the States that are under an obligation under the international human rights treaties to safeguard, uphold, protect, and promote the human rights of individuals within their individual territories. National and domestic mechanisms to protect the human rights of the citizens can take various forms. They primarily consist of the courts, ombudsmen, and the National Human Rights Institutions [2].

A National Human Rights Institution (hereinafter NHRIs), which is a recent development, [3] has been described as “a body, which is established by a government under the Constitution, or by law or decree, the functions of, which are specially defined in terms of the promotion, and protection of human rights.” [4] Though these institutions are especially intended to protect and promote human rights, they do not take over the role of the judiciary, legislative bodies, government agencies, political parties, or NGOs [5] . They mainly monitor the human rights situation, audit laws, make recommendations, train personnel, educate the public, report to international bodies, hold inquiries. [6] Since the effective protection of human rights necessitates flexible mechanisms that cannot ordinarily be provided within the traditional court system, NHRIs “with their “complimentary mechanisms,” have become the much needed “third force” for the protection and promotion of human rights at the national level.” [7] Further since not all human rights violations are of such degree so as to attract international attention the NHRIs could perform these functions at the national level. [8]

In India, the institutional framework for protection of human rights was enhanced when the Parliament enacted the Protection of Human Rights Act, 1993. It was under the mandate of this Act, that the National Human Rights Commission (hereinafter NHRC) was set up in India on 12 October 1993 [9] . This Commission is among one of the first established in the 1990s as well as the first in South Asia. [10]

This paper is an attempt to evaluate and assess the role of the NHRCs in protecting and promoting human rights of citizens. The paper begins with a brief history of the events which led to the formation of the National Human Rights Commission. The Paris Principles will be discussed and highlighted in this regard. The second part of the paper will deal with workings of NHRC and how in the recent years, the NHRC has gradually extended its jurisdiction, and have dealt with a wide variety of cases ranging from suggestions for police reforms to rights of disabled, health, rights of mentally challenged, food security, education, rights of minorities, Scheduled Castes and Scheduled Tribes and internally displaced persons, etc. [11] The next part of the paper will deal with two specific issues – the disappearance cases in Punjab and the right to food issue in Kalahandi, which has been successfully tackled by the NHRC. Finally the researcher will probe into the question as to how to further strengthen and increase the effectiveness of the NHRC.

RESEACRH QUESTIONS

What were the background events which led to the creation of the NHRC in India?

How the has the jurisdiction of NHRC been expanded over the recent years?

How has the NHRC dealt with the cases of ‘disappearance in Punjab’ and the ‘Right to Food’ case in Kalahandi?

III. CREATION OF THE NATIONAL HUMAN HIGHTS COMMISSION IN INDIA

For several years, the United Nations (hereinafter UN) has been vigorously trying to promote independent and effective human rights institutions, for it may be the best way to guarantee respect for human rights within the domestic sphere. [12] In 1991, the first major international meeting on this issue, took place in the Workshop on National Human Rights Institutions held in Paris [13] , where the Principles relating to the Status of National Institutions (or the Paris Principles) [14] were adopted. The Paris Principles, endorsed later by the UN Commission on Human Rights [15] and the UN General Assembly, [16] sets out the minimum criteria for the effective functioning and strengthening of the NHRIs. [17] It calls for the establishment of independent commissions to protect human rights, and it has become the benchmark against which national human rights institutions are measured. [18]

The Paris Principles prescribe seven important principles which aim at creating independent and credible NHRIs. According to the Paris Principles, a NHRI must be: independent of the Government, guaranteed either by statutory law or constitutional provisions; be pluralistic in their roles and membership; have a broad mandate, which could collectively protect and monitor the implementation of human rights through various means, including recommendations and proposals concerning existing and proposed laws and policies; have powers of investigation, capacity to hear complaints and transmit them to the concerned authorities; be regular and effective in functioning; be funded adequately and not be subject to financial control, which may affect their independence; and must be easily accessible to the general public. [19]

Discussions surrounding the establishment of a NHRI in India dates back to 1991. Throughout the late 1980’s India faced politically turbulent times, for the nation, especially Kashmir, Punjab and Assam was engulfed in a powerful wave of foreign-funded terrorist violence, which resulted in a severe loss of human life and property. [20] In order to combat movements the Indian Government deployed the army, and enacted the draconian Terrorist and Disruptive Activities (Prevention) Act, 1987, that vested vast powers in the police. [21] This resulted in the rise of state-sponsored terrorism, and the police flagrantly caused grave violations of human rights, victimizing innocent persons. [22] This resulted in international outcry and ‘scathing’ reports were submitted by the Amnesty International and Asia Watch manifesting that abuses including torture, rape, custodial deaths, were being committed by state security agents [23] . The Government was heavily criticized for failing to establish a credible mechanism to monitor the situation and punish the guilty. [24]

Apprehending indictment from the international community and a resultant fall-out with international financial institutions like World Bank, the Congress government, led by P.V. Narasimha Rao, initiated discussions on establishing a NHRI [25] . On 16 March 1992, the then Home Minister, Mr. S. B. Chaban stated that the goal of the proposed human rights commission was to “counter the false and politically motivated propaganda by foreign and Indian civil rights agencies” [26] . Further, Mr. V.N. Gadgil, the then official spokesperson of Congress (I) added, that the findings of the NHRC “will act as correctives to the biased and one-sided reports of the NGOs. It will also be an effective answer to politically motivated international criticism.” [27] . Many commentators labeled this initiative as an endeavor to counter the criticisms over India refusing access to the international human rights groups for conducting research missions in various parts of India. [28] .

It is in the midst of these criticisms that the President of India promulgated an Ordinance on September 28, 1993 and by virtue of the Protection of Human Rights Act, 1993, on October 12, 1993, the NHRC was established. [29]

IV. EXPANSION OF THE JURISDICTION OF THE NATIONAL COMMISSION ON HUMAN RIGHTS

The National Human Rights Commission of India was constituted “for the better promotion of human rights and for matters connected therewith or thereto.” [30] It is a statutory body, having an independent and autonomous character, and is vested with powers, duties, and functions. Indeed over the past 17 years the Commission has strived to positively give effect to the objectives set out in the Protection of Human Rights Act. [31] Special powers are conferred to the NHRC under Section 10(2), according to which the Commission shall regulate its own procedure. [32] According to Section 3 the Commission should comprise of five members out of which three should be from the judiciary and two from persons having knowledge or practical experience in matters regarding human rights. The composition of the Commission makes it a unique body, keeping it untainted from political bureaucracy, which infests most of the other Statutory Commissions.

The Commission has various powers like inquiring suo motu against any public servant [33] , intervening the proceedings of courts involving allegations of violating human rights if the court approves of the intervention [34] , monitoring prison or custodial practice and visiting any jail [35] and making recommendations to State governments based on such visits, reviewing the safeguards guaranteed under the Constitution or any other law [36] . Section 12(f) empowers the commission to make recommendations for their effective implementation of international human rights treaties. While Section 12(g) advocates promotion of research, Section 12(h) enables the Commission to spread literacy between various sections of the society, and to promote awareness for human rights. It can also encourage efforts of NGOs operating in the field of human rights [37] , and can perform any other necessary functions for promoting human rights.

Section 2 (d) of the Act defines “human rights” as “rights relating to life, equality, and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”. It is evident that the law requires the NHRC to give more importance to civil and political than on social and economic rights. [38] However, the Commission has not limited its jurisdiction to only civil and political rights, but has expanded its jurisdiction and has dealt with wide variety of cases. Initially the efficacy of NHRC and the force of its recommendations within the limitations of its jurisdiction were doubted [39] . The Commission has been identified as the major institution preserving the human rights culture in the country.

Since its inception, the Commission had received numerous complaints with respect to violation of human rights by the police, and it has intervened in cases on police reforms pending before the Supreme Court. It has dealt with cases regarding police administration and has set up a Police Complaint Authority in the office of the Director General of Police in each state in order to have a general oversight of the conduct of the police officials. [40] It has also given serious attention to improving the prevailing conditions in the jails, and about the conditions of the under trials, and mentally ill persons in prisons. It also urged people to report cases of custodial deaths, rapes etc, including those involved in the army and para-military forces to the Commission immediately. [41]

According to the Commission only realizing that political freedom would not be purposeful for those who suffer from poverty and social evils unless economic, social and cultural rights are assured to them, the Commission, during the past few years has made serious efforts towards realization of economic social and cultural rights. [42]

The Commission has been espousing for the right to free and compulsory education till the age of 14 years since 1994. [43] The Commission has dealt with the right to health, the requirement of assurance of quality in mental hospitals and protection of the rights of mentally ill. Compulsory rural attachment for the doctors and the involvement of nurses to resolve the issue of manpower was also suggested. [44] On the direction of the Supreme Court, the Commission has been also supervising the enforcement of administration of laws against bonded laborers in the states. This involvement of the commission at the instance of the Supreme Court is an illustration of strategic alliance between the two institutions in securing human rights of the vulnerable. [45] The role of the Commission is complements the role of judiciary. This complementary role of the Commission and the judiciary in India is an illustration of ‘best practice’. [46]

Further, it has also taken care of the rights of those who are affected adversely by natural calamities. For example in the aftermath of the Orissa Super-cyclone, in 1999, the Commission had suo-motu taken cognizance and made recommendations to the State Governments to ensure that the human rights of the marginalized groups are protected [47] . Commission took suo-motu cognizance of the communal violence which took over Gujarat in 2002 and since then has been seized of the issue. A Special Leave Petition was filed by Commission in the Supreme Court, asking the court to enforce “the right of fair trial” for the concerned parties and for transferring about nine cases for trial outside Gujarat. [48] The Commission has also intervened to transfer of some serious cases to outside Gujarat, has reopened several cases and convicted those guilty in `Best Bakery’ and Bilkis Bano cases [49] .

Based on the Commission’s efforts and advice, India has signed the Torture Convention, and has also signed and ratified two Optional Protocols to the Convention on the Rights of the Child [50] and the Convention on the Rights of Persons with Disabilities [51] . It has been urging the Government to ratify the 1951 UN Convention relating to the Status of Refugees and the Torture Convention. [52] Further it has also been advocating for a National Law on Refugees. [53] The Commission has also constituted a ‘Working Group and an Advisory Committee’ which included representatives of various departments of the Government, NGOs, and eminent lawyers to prepare a National Action Plan for Human Rights in 2006. The Working Group is focusing on areas like education; criminal justice system; rights of vulnerable groups like women, children, bonded labourers, dalits, tribals, minorities, disabled and the elderly. Issues like right to food, water, health, and environment, and right to social security globalization and human rights are also being dealt with by the Commission. [54]

This shows that the Commission has been actively engaged in safeguarding the economic, social, and cultural rights of the teeming millions in India.

V. DISAPPEARANCE CASES IN PUNJAB AND THE RIGHT TO FOOD CASE IN KALAHANDI:

Since its inception in 1993, the Commission has dealt with various cases, some of which has been referred to by the Supreme Court, while some others, which the Commission has taken up suo motu. Among the important cases which were dealt by the Commission, the disappearance cases in Punjab and the right to food case in Kalahandi, Orissa are discussed below.

Punjab Mass Cremation And The Disappearance Cases In Punjab:

Punjab, during the 1980s, experienced a long insurgency marked by battles between insurgents and state forces [55] . From 1984 to 1994, thousands of persons in Punjab “disappeared” and were believed illegally ‘cremated’ by the police to suppress insurgency outbreaks in the state. [56] Police counter-insurgency efforts involved cruelty, torture, forced disappearances, and a system of cash rewards for the summary execution of alleged Sikh militants. There were numerous instances of police abuses and there was no absolutely effort to account for these forced disappearances and summary killings which resulted in the death of many innocent and ordinary civilians. [57] In 1994, Jaswant Khalra, Chairman of the Human Rights Wing, Akali Dal, and Jaspal Dhillon, then General Secretary of the Wing, responding to the reports of mass disappearances took initiatives to investigate the illegal cremations conducted by the Punjab Police in Amritsar district. [58] After the findings were publicized, a writ petition was filed in the Punjab and Haryana High Court by Khalra to investigate these mass cremations. However, since the High Court dismissed his petition on basis of vagueness, and absence of sufficient proof, Khalra moved to the Supreme Court [59] . Two writ petitions [60] were filed in the Supreme Court, which prayed that the State should be held liable for the flagrant violation of human rights. The Court after examining a report submitted by the Central Bureau of Investigation (CBI) pointed out that the report stated that nearly 585 dead bodies could be fully identified, 274 could be partially identified, and 1238 were unidentified. [61] On 12 December 1996 the Court requested the NHRC to examine and investigate the matter and determine the issues relating to the case. [62] During the pendency of the case before the Supreme Court, the police abducted Khalra.

The Commission has recommended compensation of Rs. Two lakh fifty thousand to each of the next of kin of 195 deceased identified to be in the custody of police and Rs. One lakh seventy-five thousand to each of next of kin of 1103 identified persons whose dead bodies were cremated by the police. It further acknowledged that monetary or pecuniary compensation is an effective and sometimes maybe the only remedy for redressing the infringement the basic human rights by public servants and the State. [63] According to the Commission, the claim of citizens who are affected is founded on the doctrine of strict liability, where compensation, could not be denied on the ground of sovereign immunity [64] .

Kalahandi And Right To Food Case In Orissa:

The NHRC has since long maintained that right to food is inherent to living a life with dignity. It has also expressed that right to food includes nutrition at an appropriate level. [65] Since December 1996, the Commission has been looking into complaints which alleged starvation deaths in Koraput, Bolangir and Kalahandi districts of Orissa. The case started in 1996 when the when the Commission took cognizance of a letter from Mr. Chaturanan Mishra ,the then Union Minister of Agriculture, with respect to deaths caused as a result of starvation in the various districts of Orissa. [66] On December 23rd, 1996, under Article 32 a writ petition in the Supreme Court was filed by the Indian Council of Legal Aid and Advice and others, alleging deaths by starvation and that it continued to occur in the districts of Orissa. [67] However, the Supreme Court realized that simply giving a decision for the present case will not suffice, and that program and policy initiatives were requires. The court therefore stated that that that since the matter had been taken up by the NHRC, the petitioner should approach the Commission. [68] The importance of NHRC for the first time was realized by the Apex court in this case. Since then, the Commission has been actively involved in monitoring programs and policies in this regard.

The Commission acted immediately, prepared interim measures for the next two years. Commission was of the view that‘to be free from hunger’ is not only a fundamental right of the citizens of India, but is also a basic human right [69] . To ensure the proper execution of Right to Food, the Commission has recommended setting up of Committees whose work would be to monitor the access and availability of food grains to the most vulnerable sections of the society. [70] The Orissa Government was requested to constitute a Committee for inspecting of all issues regarding land reforms in the affected districts. [71] For monitoring the implementation of its directions, a Special Rapporteur was also appointed. The Commission came to the conclusion that deaths resulting from starvation reported from some parts of the country were most certainly due to consequence of mis-governance from acts of omission or commission on the part of public servants. [72]

After organizing a meeting with the legal experts on the issue of right to food, in January 2004, Commission approved the constitution of a Core Group on Right to Food [73] , who will have the power to advice and suggest appropriate measures, which can be undertaken by the Commission. [74] It has also issued the guidelines on the constitution and functioning of such committees to all the State governments and the Central Ministries. [75] If these committees are implemented in a proper manner, they can act as Watch Committees, which would pave the path for a ‘hunger free India’. Further the Commission has also drafted a National Action Plan on Right to Food, and is also seriously monitoring malnutrition in Maharashtra. [76]

The manner in which the Commission has dealt with the above two cases, has firmly established that in India, both the courts and the Commission are beginning to treat the economic, social and cultural rights are being treated at par with civil and political rights. India is one of the few countries in the world to have “accorded justiciability of economic, social, and cultural rights” [77] , thereby safeguarding the rights of teeming millions.

VI. CONCLUSION

Though every nation has its own priorities and goals to achieve, there are certain minimum standards which they are expected to fulfill, in order to meet their international human rights obligations and the larger world order. The Paris Principles, adopted by the General Assembly is the edifice on which national human rights institutions have been set up. A free and fully autonomous national institution is the best guarantor for the protection of human rights within the domestic sphere and the National Human Rights Commission of India is fully conscious of the same. It is evident from above that with the advent of National Human Rights Commission human rights protection has taken a leap in India. Inspite doubts about the Commission’s independent functioning, it has surprised both the domestic and international community with its decisive and credible actions. The Commission, ever since its inception, has always tried to expand the reach of its jurisdiction, and has been seriously engaged in the protection of economic and social rights. It has dealt with number of issues like right to food, right to clean drinking water, right to shelter, right to health, right against discrimination etc.

However, there are areas where there are avenues for improvisation. The Commission must be able to provide concrete remedies to the hapless victims, and must be vested with explicit powers of prosecuting delinquent public servants in case it finds sufficient evidence of violation human rights. Further it must also be empowered to refer any person for prosecution who for no reason obstructs the functioning of the Commission. This will provide teeth to the system. [78] It is only then that the Commission will be able to investigate cases in a proper manner. Given the fact that the task of protecting and preserving the human rights in the India is task of huge magni