Amendment and any effort to reform bodies like NHRC or any other institution should always be welcomed if the amendment and reform aims at strengthening the institution and making it more effective in order to serve the purpose. The amendment however should not scuttle the independent identity of the institution. Instead, it should be aimed at providing more constitutional safeguards like those of Chief Election Commissioner and other constitutional bodies.
Long ago, former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said, “When the fundamental principles of human rights are not protected, the centre of our institution no longer holds. It is they that promote development that is sustainable; peace that is secure; and lives of dignity.”
As per the new amendment, it will not be mandatory that the chairperson of the National Human Rights Commission will be a retired chief justice of the Supreme Court. The government can now appoint any judge or retired judge of the Supreme Court as the chief of NHRC. Many believe that it will provide the government to pick and choose their ‘yes man’ as chairperson and it will further dilute the power and effectiveness of the NHRC.
Former UN Deputy Secretary General Jan Eliasson once said, “There can be no peace without development, no development without peace, and no lasting peace or sustainable development without respect for human rights and the rule of law.”
The amendment further provides that the Commission will have three members, instead of two in the past. One may argue that it was done to strengthen the Commission but many believe that the increase of one more member may be aimed at downsizing the clout of the chairperson of the Commission in the same manner when two more election commissioners were added without constitutional safeguards to the Election Commission headed by former Chief Election Commissioner T.N. Seshan.
N.D. Pancholi, president of PUCL Delhi, told Radiance, “This amendment giving leverage to the government in choosing chairperson of NHRC will have deleterious effect on human rights movements as government will have wider choices in choosing a chairperson of its liking who will work more favourably to government than in the interest of human rights.”
However, the announcement made by the Defence Minister Rajnath Singh to set up human rights cell in the army is a welcome step if it serves the purpose. “An umbrella organisation under VCOAS for enhanced focus on human rights issues – To give high priority to observance of human rights convention and values, it has been decided to set up a special Human Rights Section headed by ADG (Major General rank officer) directly under the VCOAS,” an official release said. “It will be the nodal point to examine any Human Rights violation reports. To enhance transparency and ensure the best of investigative expertise is available to the section, a Police officer of SSP/SP rank will be taken on deputation,” it added.
Ravi Nair, Director, South Asia Human Rights Documentation Centre, while sharing his perspective on the issue, told Radiance, “The Defence Ministry and Army Headquarters, it is evident, have no institutional memory. On 21 August 2019, they stated a special human rights section headed by ADG (major general rank officer) directly under the Vice Chief of the Army Staff. Clearly, they forgot that they allegedly had set up a Human Rights Cell (HRC) at Army Headquarters in March 1993. It allegedly had the same mandate, the same rank officers in it. The only new cosmetic change is that they will include a junior Indian Police Service officer in it.
“The Army top brass did itself no credit by giving the Major Gogoi a commendation even while we were told that the army was holding an internal inquiry! Reinstating Col Purohit while the charges still stand against him in a court of law testifies to the so-called adherence to human rights of the Indian Army,” argued Nair.
“The international human rights and humanitarian law community has been concerned by the complete immunity and impunity enjoyed by the Indian armed forces in Kashmir and the North East. The recent report of the UN Human Rights machinery on Kashmir has clearly rattled the Government of India. The response needs to be more honest. Old wine in new bottles will not do,” said Nair.
Another social and human rights activist, John Dayal, while speaking to Radiance, said, “Any effort that introduces officers and jawans of the Indian armed forces, not just the army, is to be welcomed. The forces were meant to defend the country against external enemies. In course of time, largely because of failed political policies and government failing to stem unrest, stop widening economic divisions and similar issues, the army has been used against the Indian citizens within the country.”
“This has been the case against insurgencies in the states of the North East. They are now permanently stationed in the Kashmir Valley and Kargil in Ladakh as much against Pakistan and Chinese incursion as against people’s uprising against unpopular policies. The result has been major incidents that have verged on the criminal. Many others have made international headlines, such as tying of a common citizen to the front of a military jeep as human shield. Pellet guns have caused untold misery. Stray cases of rape and assault are also known. Human Rights and constitutional guarantees must be part of the curricula in military training for jawans and officers. There must be periodic refresher courses,” opined Dayal.
Sankar Sen, Senior Fellow, Institute of Social Sciences, Ex-Director-General, NHRC, in his latest article, published in The Tribune on 22 August, under the heading, “New law may tighten govt’s control over NHRC” has reasonably argued, “Unfortunately, the Protection of Human Rights (Amendment) Act (PHRA), which created the NHRC, handcuffed the commission, and stood in the way of its efficient and effective functioning. It created a weak and toothless commission. From the outset, the NHRC pressed for major amendments to the Act. In 1998, during the chairmanship of Justice Venkatachaliah, it set up a committee under Justice AM Ahmadi, a former Chief Justice of India, to suggest an amendment with a view to enhancing the effective functioning of the commission.” Whether the new amendment will enhance the effective functioning of the Commission or it will further create hindrance in the modus operandi of the Commission is a big question.