20th March 2020 : The Hindu Editorials Summary Notes : Mains Sure Shot
Question – Should the National Human Rights Commission (NHRC) be given more powers? Analyse.
Context – The controversy over the NHRC being a toothless tiger.
Why in news?
- A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
What is the controversy?
- This can be best understood through the description given by ex-CJI H.L. Dattu.
- At present he is the chairman of the National Human Rights Commission.
- According to him, the NHRC painstakingly investigates human rights violation cases, sometimes in remote areas, with our limited resources. The evidence collected is put to forensic judicial adjudication by its chairman and members, who are former judges. But at the end, when NHRC arrives at a finding , it can only recommend remedial measures or direct the state concerned to pay compensation.
- They have to keep writing letters to the authorities concerned to implement their recommendations. But at the end it is the will of the authorities concerned. So it is for Parliament to decide whether to confer NHRC with some kind of contempt powers to make authorities implement the recommendations.
- Twenty-six years ago the state of Madhya Pradesh launched human rights activism in a structural manner by the creation of its own State Human Rights Commission (SHRC).
- This was a full year before the National Human Rights Commission (NHRC) was formed. Before the NHRC, the Indian parliament had created two related commissions in 1990 (a National Commission for Scheduled Castes and Scheduled Tribes and a National Commission for Women), as well as a National Commission for Minorities in 1992.
- In June 2016, the current chair of the NHRC and former chief justice of India, HL Dattu, described this institution over which he presided as “a toothless tiger.” In 2017, the Supreme Court of India seemed to support Justice Dattu’s remarks while dealing with the alleged extra-judicial killings of 1,528 persons in Manipur by police and armed forces.
- In 1993, the Indian Parliament enacted the Protection of Human Rights Act. The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution. To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.
- It also acts as the ‘fourth branch’ of democracy. According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
- The complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
- Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General. Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
Has it served its purpose?
- In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions has come under scrutiny and criticism.
- There have been the usual critiques of the politicisation of autonomous bodies, and selectiveness.
- Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.
Is it a toothless tiger?
- Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
- Also while conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on. These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
- But the controversy before the Madras High Court is based on the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
- Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps.
- The key question revolves around the meaning of the word “recommend”.
Should NHRC be given more powers?
- The first is that there is often a gap between the ordinary meanings of words, and the meanings that they have within legal frameworks. Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood.
- This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions. As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights. To fulfil this purpose, the Act creates an institutional infrastructure – the Human Rights Commissions.
- The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
- It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities (effectively, the state judging itself). This, it is clear, would defeat the entire purpose of the Act.
- Past examples – in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity. For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so. It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role that fourth branch institutions are expected to play in the constitutional scheme is significant.
- And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).
Overall/ way forward:
- In sum, the crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which as the Madras HC said, will have a crucial impact upon the future of human rights protection in India.
- Note – There is another article titled ‘COVID-19: What nature seems to be telling us’. This article deals with the issue of having a global approach to such problems and multilateralism. This has been covered well in the article of 18th March.