India’s Defanged Human Rights Commission

Hands, bound, tied,
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India's National Human Rights Commission is mandated to protect citizen rights. But can they bite the government?

3:30 a.m., April 5, 2010, Vadamadurai

33-year-old Senthil Kumar is arrested without an arrest warrant. On being asked for one, the police beat up the person asking. Senthil is taken to the police station, but his parents are not allowed to enter inside. They can hear him screaming – but a policeman tells them the sounds are not from their son. They return home. The next morning, a friend informs them that their son is dead, in a government hospital.

2 a.m. April 16, 2014. Bombay

25-year-old Agnelo Valdaris is dragged out of his grandparent’s house by the police. At the station, he’s thrown into a cell with his friends. They’re accused of robbing a man in the local train. The next morning, Agnelo manages the following message to his father.

“Daddy save me, save me. They have been beating me the whole night. They will kill me, Daddy. These policemen will kill me.”

He was dead the next day. The police claimed he’d been hit by a train while trying to escape.

Late night, October 8, 2011, Chhatisgarh

Soni Sori is arrested on the charge of being a Naxalite, and burning down a truck. Unlike many others, she survived her arrest. She says she was tied to a chair and administered electric shocks, stripped naked, and sexually assaulted by police officers and tortured with stones.

Yet in 2013, despite calls from Amnesty International, Human Rights Watch and innumerous media organizations and academics, the National Human Rights Commission (NHRC) gave a clean chit to the Chhatisgarh government on the accusation of torture (though it gave mention to her being singled out and mistreated in prison).

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What all these cases have in common is that each involves deaths or incidence of torture within police custody. The NHRC mandates that these be reported to them, and independent inquiries conducted.

Yet, almost a hundred are killed in police custody in a year without a single case being filed. In the last five years, this numbers at 591 deaths, according to a Human Rights Watch report using government data.

The apex body for human rights in India, the NHRC, finds too often that its hands are tied.

A toothless tiger?

In an interview given to a newspaper in June, 2016, the National Human Rights Commission chairman, Justice H L Dattu, called his own organization a toothless tiger.

NHRC is a toothless tiger. We painstakingly investigate 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.

A month later, the Supreme Court agreed that the National Human Rights Commission might have lived up to their reputation. The case before them was between the Extra Judicial Execution Victim’s Family Association (EEVFAM) and the Union of India. It resulted in the court ordering an inquiry in 1528 cases of extra-judicial killings. EEVFAM alleged that none of these cases accompanied a First Information Report (FIR), though police filed these against family members of the victims, in a bid to shut them up.

The NHRC is no stranger to the indifference of the state – its own abilities are restricted to ordering monetary compensation, or suggesting an inquiry. In a span of three years, the NHRC recommended $343,000 worth of compensation in 432 cases reported to it. It recommended disciplinary action in three, and a prosecution in none. And altogether, 46% of compensation cases filed by the NHRC were still pending in August, 2016

Conflicts of interest

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A 2016 Human Rights Watch Report titled ‘Bound by Brotherhood’ explores the nexus between investigatory authorities, hospitals and magistrates that allow custodial killings to go unpunished. The report noted the NHRC’s “unwillingness to recommend prosecution of police officers, even when there is prima facie evidence that officers have committed a criminal offence.”

The problem is compounded when the violations happen in conflict areas – as the NHRC cannot make complaints or reports pertaining to the armed forces. In 2002, they requested that paramilitary forces be excluded from the ambit of ‘armed forces’ – so the NHRC could check on the numerous reported human rights violations.

When it tried in 2010 to inquire into multiple civilian deaths in Kashmir, it was admonished by the state government of exceeding its jurisdiction (Kashmir has its own state-led human rights commission, also ignored by the state).

Powerless against the powerful

The NHRC has tried to get more powers, since its inception in 1993. In September 2016, it clashed with the Supreme Court on whether its recommendations could get ‘binding’ status. The Court wrung their hands, “Any change ordered by the Supreme Court to make NHRC report binding on the government would amount to judicial legislation, which is barred under the Constitution.” It’s left to lawmakers to give the NHRC fangs.

The problem is that the NHRC has shown a willingness to bite. In 2002, only nine years since their formation, they took on the Gujarat government and much of the state apparatus for its role during the 2002 riots.

It’s no surprise then that in September, the ruling party’s former vice-president was recommended to be nominated for a post on the commission. It will be the first time an active career politician holds a post within the commission. Apparently, the answer to the question ‘who will guard the guards?’ is simply ‘the guards’.

It is not the first time controversy has surrounded an NHRC appointment either. In 2004, 2010, 2014, 2016, the NHRC’s appointments were criticized by journalists, opposition members and civil society for choosing former politicians, police officers and CBI-directors for its members. Maharasthra’s panel today has two former IPS officers within it today – surely a clash of interest for when the state’s human rights commission has to enquire into police brutalities?

The NHRC is not unwilling to change – its chairperson recently called for more powers to the body, arguing that the commission should ‘roar like a tiger.’ In cases like those of Senthil, Agnelo and Soni, the NHRC has guidelines for responsible police practices – the only problem is that few are enforceable.

Between 2015-2016 alone, the NHRC registered over 117,000 cases. Imagine what would happen if these had the power of consequences?

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