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| National Consultation on Strengthening National Human Rights Commission |
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29th – 31st January 2007, New Delhi
Organizers: PAIRVI, ACHR & PWTN Today, in India, the fundamental challenge to the institution of Human Rights is to ensure distributive justice in the national as well as the global context. In the early nineties the International pressure and the then political ambience cajoled the government to pass the Protection of Human Rights Act 1993 under which the National Human Rights Commission was established. It came into being more out of political compulsions than the sense of moral obligation. Thirteen years of its functioning has at best, been a mixed bag. While the Commission has served some of the concerns in a remarkable way even going against the government at times, at many others its voice of reason, in the absence of lack of sincerity on the part of the government has been a cry in the wilderness. Limitations imposed by the Protection of Human Rights Act 1993 notwithstanding, for the human rights defenders; the most disturbing thing has been the inaccessibility and attitude of the NHRC itself. With these concerns PAIRVI, ACHR and PWTN came together to organize a National Consultation on Strengthening Human Rights Commissions in India. The consultation was organized in Delhi on 29th to 31st January 2007. The Consultation discussed the experience of human rights defenders from 12 states of India in their interaction with National Human Rights Commission and the State Human Rights Commission in their respective states. While the first day of the Consultation dealt with training human rights defenders to effectively engage with NHRC & SHRCs, while on the second day testimonies of their experience in dealing with NHRC and SHRCs were recorded leading to intriguing discussion on the role, efficiency and effectiveness of these Commissions. The final day of the consultation discussed the agenda of reforms in the NHRC and PHRA, 1993 and was blessed by the presence of honorable Justice J S Verma (Ex-chairperson), Mr. R V Pillai (first Secretary General), Mr. R S Kalha (Member, NHRC), and Prof. Y P Chibber (PUCL & NGO Core group Member, NHRC) besides a number of other human rights organizations and defenders. A set of recommendations came out of the experience and testimonies, which are annexed and aim at improving the effectiveness and collaboration between the commission and the civil society/human rights defenders. Some of the recommendations also propose specific amendments in the Protection of human rights Act, 1993 with the aim of strengthening the NHRC and State Human rights Commissions in their onerous task of protecting and promoting rights of millions for whom these Commissions are the only ray of hope to the justice and rule of law. A copy of these recommendations has been submitted to Honorable Justice Shivraj Patil Member, NHRC and thus the Commission would be soon considering the same. Recommendations A. GENERAL 1. Show more creativity in the application of the Protection of Human Rights Act 2. Put pressure on the government for amendments of the Protection of Human Rights Act as demanded in previous Annual Reports 3. Adopt a more victim-centred, responsive & problem-solving approach to complaints instead of an overly legalistic one. For eg. advise complainants on other agencies / bodies which might be able to deal with a complaint if it falls outside of the NHRC’s remit 4. Keep complainants informed regularly of the scope, timing & progress of the proceedings & disposition of their cases HUMAN RESOURCES 1. Sensitize all staff members and ensure that they receive training in human rights on their induction into the Commission. 2. Ensure that all vacant government-sanctioned posts in the Commission are filled and lobby the Government for additional permanent posts as well as additional consultants (above & beyond the currently 20 consultants whose engagement in the Commission has been sanctioned) ACCOUNTABILITY AND TRANSPARENCY 1. The cases and their status should be accessible to all on the website 2. Provide detailed info of the complaints process on website so that victims know exactly what to expect and how their complaint will be processed. 3. Limit the initial response time. 4. Provide simple but clear statistics which allow easy comparisons between the numbers of complaints received, rejected, outstanding, finalized, etc. the commission must also distinguish between cases pending due to lack to concerned authorities response or due to commissions own inability to take up the matter effectively. ACCESSIBILITY 1. Create a simple, non-technical pamphlet providing basic info on the Commission’s complaints handling process, the rights which fall into the Commission’s mandate & examples of complaints that cannot be entertained. 2. Take efforts to open regional offices to do away with the geographical bias in redressing complaints. TiME FRAME 1. Standardize and publicize the time limit (with discretion for extension in certain circumstances) for receiving Government responses, reports, etc. instead of stipulating a separate time limit in each direction/order. A standard time limit would be more easily implemented and make it easier to follow up on pending reports 2. In the absence of statutory time frames set clear and realistic voluntary time frames for the different stages of the complaints process (e.g. initial acknowledgement, decision on admissibility, envisaged average pendency period, etc.) so that the complainant is aware of what to expect and the Commission’s staff feel more compelled to act within the stipulated time. COMPLAINTS HANDLING 1. Ensure that cases are dealt with more expeditiously. 2. Assign only a single case number to each case instead of the current practice of assigning a case and a file number which can easily cause confusion and miscommunication 3. As soon as a complaint arrives, enter the name of the complainant, the name of the victim and the date of the complaint into a computer which should allocate a single automatic case number. The other case details can be entered later. The acknowledgement with the allocated case number, date of the complaint, name of the complainant AND name of the victim should be sent to the complainant within a maximum of three days. 4. Ensure that decisions on prima facie admissibility are made within three weeks of receipt of complaint and inform the complainant immediately after deciding whether a case is admissible or not 5. The commission must respond to the queries of the complainants/victims and provide relevant information, even if the only information to be provided is no change in the base status. 6. Create sub-committees on certain rights or issues (e.g. police torture, dalit rights, women rights, children rights, etc.) and assign each complaint to an officer within the respective sub-committee. 7. Allow for decisions made by the Commission to be reviewed/appealed against and establish an appropriate review/appeals mechanism. INVESTIGATION & CLOSURE 1. Inform the complainant when a response from the opposite party has been received and make every response as well as all other relevant documents pertaining to a case available to the complainant for his or her comments. The Commission must give the complainant the opportunity to comment on the alleged perpetrator’s response. This is particularly important in light of the frequently biased and incorrect reports submitted by the authorities. 2. Stop the abhorrent practice of closing a case merely on grounds of receiving the concerned authorities’ reports, which are known to be frequently biased. 3. Carry out proper investigations including the invitation and examination of the complainant’s comments on the authority’s response as well as on-site visits and interviews and where necessary summoning of the concerned officers. The current practice allows the accused to be a judge of his own conduct hence violating the fundamental principles of natural justice 4. Ensure that a complainant is immediately informed if his or her case has been closed 5. Be more prepared to pass favourable orders including the recommendation of interim relief and suggestions for the initiation of criminal proceedings 6. Exploit the Commission’s potential to contribute to the development of a rich human rights jurisprudence, which it is uniquely situated to do due to its powers to intervene in any proceedings involving human rights violations, initiate new litigation, review the constitutional and legal safeguards for human rights protection and recommend measures for their effective implementation 7. Stop declaring all cases which are sub-judice prima facie in limini. The Commission should adopt a creative approach and in line with Amnesty International’s recommendations should, where prosecutions are pending, not consider the substance of the criminal charge but should be able to look at ancillary matters. Further violations might also result from the criminal case and the Commission must investigate such violations even if they are closely related to the subject matter of the court case. Declaring any possible case in limini is an easy way of reducing its case load but it’s not the right way. 8. Stop declaring all cases prima facie in limini which have exceeded the one-year time limit as such cases might relate to very serious violations and there may be good reasons for the delay in filing the complaint before the Commission 9. Make greater use of powers bestowed upon the Commission if authorities do not cooperate. As directed in Practice Direction No. 7, if a report from a concerned authority is not received in time, the Head of the Law Division may issue summons to the defaulting authority/officer for his/her personal appearance before the Commission. These directions should be complied with rigorously. 10. Make greater use of investigative powers under section 14 of the Protection of Human Rights Act including summoning any person for interrogation (at present these powers are rarely used). 11. Make greater use of power under section 17 of the Act to inquire into a complaint if no report from the authority is received or if such report is unsatisfactory 12. Carry out more frequent on-site visits. 13. Involve NGOs in the investigation process of complaints where appropriate. 14. Establish a fast-track procedure for all cases of custodial violence, not only custodial deaths, particularly where victims are still at risk of further abuse 15. Follow up & implementation 16. Improve and strengthen follow-up of directions given by the Commission 17. Take all possible measures to press the Government for implementation through pressure by the media, parliament, international pressure of opinion and through bringing specific cases to the attention of the international human rights bodies. VULNERABLE COMPLAINANTS 1. Ensure that complaints lodged by or on behalf of vulnerable communities are dealt with expeditiously as directed by the Commission itself 2. The Dalit Cell created by the Commission must work more actively and ensure that all cases brought by or on behalf of members of the Scheduled Castes are dealt with speedily and effectively. At present the pendency period for such cases is the longest and the number of final directions passed the lowest despite the special need for swift investigation of such cases 3. The Commission must stop the routine practice of exposing complainants to the authorities and must respect a complainant’s request to be anonymous if he or she so desires 4. Make greater use of the Commission’s ability to recommend immediate interim relief to victims or their families in cases of severe human rights violations or where the victim is particularly vulnerable, has been rendered unable to work due to, for example, severe torture or where a family has lost their main breadwinner, for example, in cases of custodial death. CUSTODIAL DEATH/RAPE 1. Ensure that guidelines on custodial deaths are strictly followed and custodial death cases are processed expeditiously and systematically. The Cell set up exclusively to deal with and process custodial death cases must work rigorously and comply with the directions given by the Commission for its operation. 2. Ensure guidelines for the Government on how to deal with cases of custodial deaths/rape are strictly followed and all cases of custodial death and rape are reported to the Commission within 24 hours of occurrence. The Commission must be more stringent and ensure that governments are fully aware that failure to comply with these guidelines will have adverse consequences. 3. Ensure that the “meticulous review” of custodial death cases (as stated in the NHRC’s 2002-2003 Annual Report) is indeed meticulous and not just empty rhetoric as was found in this study. 4. Order immediate interim relief to the family of the deceased in cases of custodial death SHRC/ CIVIL SOCIETY COLLABORATION 1. Seek active collaboration with other complaints handling mechanisms including the State Human Rights Commissions, as this could potentially reduce the NHRC’s case load 2. Involve State Human Rights Commissions in monitoring the NHRC’s guidelines, for example on custodial death/rape or encounter killings. 3. Establish common guidelines and formats with the State Human Rights Commissions to ensue uniformity in handling complaints, avoid inconsistencies and make it easier to monitor pending cases and create comparable statistics. 4. Increase cooperation with civil society and encourage the efforts of NGOs as stipulated in section 12(i) of the Protection of Human Rights Act 5. Forge close working relationships with NGOs including regular networking and information exchange. RECOMMENDATIONS FOR THE GOVERNMENT 1. Amend the Human Rights Act in accordance with the suggestions made by the Ahmadi Committee and the demands reiterated by the NHRC in its Annual Reports 2. Ensure that the Commission is provided with adequate financial resources 3. Ensure the Commission’s Annual Reports are not pending before Parliament for years as this constitutes a violation of the public’s right to information 4. Ensure greater cooperation with the Commission and swift and accurate responses by the concerned authorities to the Commission’s directions 5. Support the Commission in setting up regional offices across the country 6. Establish effective and well-staffed State Human Rights Commissions 7. Allow the Commission to receive funds from the Consolidated Fund of India in order to ensure the NHRC is less dependent on the Government in power. ACTION POINTS FOR CIVIL SOCIETY/NGOS 1. Demand information on the complaints you have filed before the Commission under the Right to Information Act 2005 2. Demand publication of the NHRC’s Procedural Guidelines, all its Practice Directions and other complaints-relevant information, if necessary under the Right to Information Act 3. Take cases of human rights violations which the Commission has failed to investigate properly to international human rights bodies to increase international pressure on the NHRC 4. Cooperate with regional and international organizations conducting studies and research of national human rights institutions, e.g. Forum-Asia in Bangkok, the Asia-Pacific Forum for National Human Rights Institutions or the Office of the UN High Commissioner for Human Rights, e.g. by providing shadow reports or other details as requested. 5. Put pressure on the Government of India to amend the Protection of Human Rights Act in line with the recommendations made by the Ahmadi Committee and called for by the NHRC in every Annual Report 6. Put pressure on the Government of India to cooperate more closely with the NHRC and comply with its directions and recommendations To Download the Delhi Declaration Report Clck Here |
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