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NHRC must prove its impartiality?
June, 03rd 2008
The Supreme Court of India is an internationally acclaimed institution, known for its neutrality and authority. Though there are incidents that have provoked criticism -- sometimes for good reasons -- the Court thus far has preserved its relatively untainted image of being one of the good constitutional courts in the world. This was not an overnight achievement.

The Court's pioneering approach of entertaining Public Interest Litigations and its relative success in preventing political and administrative control over its functions has gained the Court this image that it now enjoys sans jurisdictions.

Even after extraordinary circumstances that prevailed during the period of National Emergency, where there were continuous attacks to infiltrate the Court and its decision making process, the Court as an institution, has survived.

The Court's character is also reflected in the qualitative standard of the judgments the Court has rendered and the contributions it made to the development of jurisprudential theory.
Often in the Supreme Court the Government of India and its various agencies were taken to task by ordinary citizens. The standards set by the Court were largely followed by the subordinate judiciary in the country, of course with rare exceptions. The court through its actions has often reassured the citizens that it is indeed a house of justice where any Indian could approach in times of need.

The courts or tribunals in any country are an integral part of the 'justice delivery mechanism' of that country. There is no reason to consider the role of the National Human Rights Commission (NHRC) of India as inferior to that of any other institution in this mechanism in India.

 If any of these institutions pawn its independency for whatever reason to the government, such an institution will be perceived as an establishment playing to the tunes of the state against the people or as yet another farcical institution. There are examples for such institutions within Asia and elsewhere.

The NHRC of India appears to have voluntarily degraded itself to this shameful position through its recent demeanour.

The first draft of the 'State Party Report' furnished by the Government of India to the United Nations Universal Periodic Review (UPR) was in fact prepared by the NHRC in consultation with a premier law school in India.

This fact was revealed by none other than the Permanent Representative of India to the United Nations Mr. Swashpawan Singh. The Ambassador made this admission in the UN Human Rights Council (UNHRC) during his opening speech in the UPR held on 10 April 2008.

The Principles relating to the Status of National Institutions (Paris Principles) does not prohibit the contributions to be made by institutions like the NHRC in preparing State Party Reports.
In fact, Articles 3 (iii) and 3 (IV) (d) encourage national institutions to contribute to the reports prepared by the states to be submitted to regional and international human rights bodies. However, what is meant by contribution is definitely not becoming the puppet for the state.

A cursory glance of the State Party Report proves this point. The sixteen-page report lacks both clarity and analysis regarding India's compliance to its national and international human rights obligations. The report claims that a perfect legislative and institutional framework exists in India for the promotion, protection and fulfillment of human rights. However, it is widely known that this claim is false and that this framework in India falls far below the prescribed international normative standards.

This could be easily proved by a reading of the draconian laws like the Armed Forces (Special Powers) Act, 1958 and the National Security Act, 1980. The report justifies this law in the pretext of terrorism. The report contains false claims as to the actions taken against the armed forces whenever a case of rights violation was reported against a serving military or a para-military officer.

The report fails to provide any specific information regarding the actual implementation of the domestic laws and the true functionality of the justice delivery mechanisms in India. The report is almost silent about the issues concerning civil and political rights, while considerable space has been spent for discussing the rights of women, children and the aged. It is not that such a category of rights is not important; but a State Party Report is expected to be balanced and honest in its contents.

While the report hails the government's actions for promoting the interests and rights of some vulnerable sections of the society, it is completely silent about other burning problems in India like starvation, malnutrition, poverty and deaths from starvation.

The report is by no means a true depiction of the human rights situation in India. But often, in international forums this is the character of State Party Reports and the UNHRC or the UPR is not an exception.

 Where the NHRC failed in its mandate and stooped down to become nothing more than a cheap propaganda tool for the government of India is when it failed to provide an accurate report of the state of affairs in India in the UPR process in its own report.

The seven-page report submitted by the NHRC to the UPR process speaks the same language that has been used in the State Party Report. It appears that the draft report prepared by the NHRC with the help of an elite law school required less alteration to go well with the state's agenda. Of particular importance is the silence in the NHRC's report concerning the facilities provided to the NHRC by the Government of India to properly discharge its own mandate.
The over emphasis provided in discussing the compliance of the NHRC's orders by the government itself speaks volumes about the impartiality of the NHRC. While the NHRC claims that about 95% of its recommendations are complied with by the government, the truth is completely the opposite.

One example is the guidelines issued by the NHRC concerning custodial deaths. The NHRC has on several occasions insisted that in each case of custodial death, an independent enquiry is to be initiated to determine the truth behind the incident, which is never adhered to by the state governments in India.

 The NHRC has also recommended video documenting of the autopsy conducted upon the victims of encounter killings. The Asian Legal Resource Centre (ALRC) and its sister organization the Asian Human Rights Commission (AHRC) has documented cases where these recommendations were never followed.

In the past, the NHRC has tried to serve its mandate with reasonable independency. There are reflections of such commendable service in the report itself. However, in the recent past the conduct of the NHRC is more suggestive to the fact that this national institution is unbecoming an independent organization and is inclined to march along the lines drawn by the government.
The statements made by the NHRC during the 5th UNHRC session justifying the defiance of the Government of India concerning the issue of caste based discrimination and racial discrimination is one example. Please see AL-017-2007 for further information regarding this.

The UPR was created with the expectation that this process will provide enough open space to encourage creative dialogues between the states and other human rights monitoring mechanisms.

India, while it claims to be a country that is looking forward to set positive precedents in this process, has only tried to sabotage it by submitting a report drafted by its own NHRC, where questionable and shameful acts by the government were sought to be justified. It is a shame that a national institution like the NHRC has colluded with the government in this conspiracy.
The ALRC wonder on what basis did the NHRC conclude that "(t) here is an increasing convergence of the positions amongst various sections - the State, Human Rights Institutions and civil society" in India.  Probably the NHRC might have found its position in this alleged convergence.

This statement by the NHRC is a willful underestimation of the rest of the civil society organizations in India. This is neither a good precedent nor a commendable act. By this act of conspiracy between the NHRC and the Government of India, the NHRC has not only betrayed the people of India, but has started unbecoming to be a model for similar institutions in the region.
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