Complaints, non-compliance, pro-govt stance: Inside the rise and ruin of India’s human rights regime

Last week, when the Supreme Court told the National Human Rights Commission that it can’t supersede the state election commission in West Bengal, it wasn’t the first time the NHRC had faced criticism for an ostensible bias.

The commission had decided to deploy observers in West Bengal in anticipation of poll-related violence merely on the basis of media reports. But it’s yet to take a step of similar scale in violence-hit Manipur, where it has sought the government’s response to a clutch of complaints before arriving at any “final decision”.

As per media reports, the NHRC swung into action in Manipur only after a viral video in July showed two Kuki-Zo women being paraded naked by a mob. However, as per a response to an RTI filed by Newslaundry, the NHRC had received 11 complaints by May 9 pertaining to mob violence and arson in Churachandpur, Bishnupur, Imphal, Tengnoupal and Kangpokpi districts.  

It initially sought the Manipur government’s response by June 12, but it took another month to notice flaws in FIRs and compensation. On July 12, it then asked the Biren Singh government to file a detailed report by August 19. 

But as a viral video of a sexual assault in Manipur triggered outrage, the NHRC eventually told the Biren Singh government to expedite the reports on the complaints – seeking a response within two weeks as against the four-week window.

This was in contrast to the events of the past few months. 

Days after the NHRC had received 11 complaints from Manipur, the panel had held its full commission meeting at its Delhi headquarters on May 23, with the Manipur conflict conspicuous by absence. 

What the meeting instead discussed were issues such as “forced” conversions and quota benefits for “illegal immigrants” to a museum of human rights.

Radhakanta Tripathy, who had filed a complaint on Manipur violence as early as on May 8, told Newslaundry that NHRC’s response to the complaints on Manipur was not as per his “expectations”. He also maintained that he had raised the issue in a meeting of the NHRC core group where he participated as special invitee. “I demanded a team should be sent there for investigation.”

A source at NHRC claimed the chairperson, Justice (retired) Arun Mishra, had been regularly sent news clips since the outbreak of violence in the northeastern state. 

Could the NHRC have done more? 

That’s a question which has repeatedly come up over the years – be it in the aftermath of hate crimes, bulldozer “justice” in BJP-governed states, crackdown on human rights defenders, excesses by security forces, and the gradual unravelling of the human rights regime in India. 

Even global rights bodies have taken note. 

In 2021, Sweden-based organisation, Varieties of Democracy Institute classified India as a “electoral autocracy”. 

Last year, the US department of state and UN special rapporteur pointed to discriminatory steps by agencies against religious minorities and low-income groups. The global rights body Human Rights Watch even went on to accuse the NHRC of bias. 

And in March this year,  global human rights bodies wrote to the United Nations Human Rights Council seeking urgent attention to the deteriorating human rights situation in the country.

Meanwhile, for the second time in several decades, the UN-recognised Global Alliance of National Human Rights Institutions (GANHRI) – which is an international group of 16 human rights agencies – this year deferred its accreditation to NHRC. It cited political interference in appointments, involvement of the police in probes into human rights violations, and poor cooperation with civil society. 

When the NHRC was set up three decades ago through the Protection of Human Rights Act, 1993, it was envisioned as an autonomous statutory unit to hold all governments accountable on “rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants”.

The only national statutory body dealing with human rights, the NHRC has powers to summon witnesses, gather evidence, access public records, conduct investigations, demand compensation and damages, initiate prosecution proceedings, seek the court’s intervention, and recommend action to authorities. Under the NHRC operate the state human rights commissions, in 26 states so far.

However, over the years, the NHRC has disposed of more and more cases without any enquiry, asking that the complaint be referred to “the appropriate authority for appropriate action”. About 80 percent of the total cases filed were junked in this manner in 2017-18, 85 percent in 2018-2019 and 84 percent in 2019-2020.

While complaints have increasingly been disposed of through this mechanism, the commission’s recommendations to officials have been gathering dust, with a higher pendency of official compliance to its recommendations. Pendency of compliance suggestions rose from 36 percent in 2010-2011 to 74 percent in 2019-2020, with the highest figure of 90 percent in 2015-2016, as per the NHRC’s annual reports.

Let’s take a look at certain crucial aspects inextricably linked to the NHRC’s role in tackling cases of rights violations.

Encounters

In 2017, the Supreme Court had slammed the NHRC for closing down several cases of encounter killings in Manipur. The court noted that the commission acted “without any application of mind’’ and on the basis of a magisterial inquiry which is an administrative finding.  

The court then termed the commission, which has a probe wing led by a DGP rank officer, as a “toothless tiger”.

In July 2010, then NHRC chairperson KG Balakrishnan had in fact defended encounter killings, saying that they were “unavoidable sometimes”.

More recently, NHRC’s inquiries into alleged extrajudicial killings by UP Police have been marred by repeated delays and over-reliance on the police version.

In 2018, civil society outfits and families of nine people gunned down in police action had filed two separate complaints before the NHRC, highlighting 17 cases of “extrajudicial killings” in Uttar Pradesh. The NHRC clubbed the complaints and directed the commission’s investigation division to form a four-member team to initiate the inquiry.

Five years later, 15 of those cases are shut with the panel saying that the police only acted in self-defence. 

However, a report to the global amalgam GANHRI last year flagged that the NHRC’s probe had “infirmities”. “NHRC did not scrutinise apparent contradictions in the police versions, which were evident from witness statements, medical records and the analysis of forensic and ballistic evidence,” claimed the report by the AiNNI, or the All India Network of NGOs and Individuals working with National and State Human Rights Institutions.

NHRC’s action, in numbers

According to its annual reports, NHRC receives nearly one lakh complaints in a year, but most of these cases are junked at the first stage. 

The number of cases in which it recommends monetary relief has been shrinking. In 2017-2018, the NHRC suggested monetary relief in 0.8 percent of the total cases – this went down to 0.7 percent and 0.5 percent in 2018-19 and 2019-20, respectively. 

And non-compliance of such recommendations has only increased – from 45 in 2009 to 240 in 2019-2020.

Even the number of cases in which it has suggested action against erring officials has been shrinking, from 38 in 2017-2018 to 25 in 2018-2019 and just two in 2019-2020.

Human rights outfits, meanwhile, allege the commission is not even recording a large number of complaints. 

According to a report by AiNNI, only 83 percent of the total complaints – sent by the Human Rights Defenders Alert India (HRDA) – were registered by the NHRC between 2015 and 2020. In only one percent of the cases, the NHRC initiated a probe, as per the report while seeking an action taken report from the authorities in nearly 60 percent of the cases. No recommendations were passed to initiate legal proceedings against any state authority, it said.

The commission disposed of more than half of the complaints – sent by human rights outfit Bangalar Manabadhikar Suraksha Samiti (MASUM) between 2019 and 2021 – based on the reports filed by authorities, according to AiNNI.

‘Only a recommendatory body’

Helmed by a former Supreme Court judge, the NHRC lacks the power to implement its own recommendations, with either lip service or complete ignorance by authorities.

“NHRC is only a recommendatory body; implementation rests with the authorities. So follow-up and constant reminders are the only way to ensure compliance,” a former senior employee, who was associated with the organisation for more than two decades, told Newslaundry. 

According to KG Balakrishnan, who was the NHRC chairperson between 2010 and 2015, it is not possible for the rights body to follow up on its recommendations for disciplinary action. “Disciplinary action in any government organisation requires time.…We are not very much concerned with the outcome: whether he or she is suspended…if the department has taken some action or initiated some action. That is sufficient for us.”

Since its creation, autonomy has been at the centre stage of discussions around NHRC, with the inherent design of the Protection of Human Rights Act making the panel depend on the centre for its constitution and funds

Additionally, the rights body is placed under the union ministry of home affairs.

As per the PHR Act, the Centre, after due appropriation by Parliament, may grant the NHRC funds it considers fit for utilisation.

In its first annual report of 1993-94, NHRC suggested redrafting this clause by removing the phrase “as the Central government may think fit”. But this never materialised.  

What is also at the core of the debate around NHRC’s independence is its appointment procedure. As per section 4 of the PHR Act, the six-member panel in charge of appointing the NHRC chairperson and members has four members from the government and only two representatives from the opposition – one each from the Lok Sabha and Rajya Sabha.

Changes to this act in 2019 raised more eyebrows, with the five-year tenure of the chair and all members being reduced to three years, and the eligibility criteria for the chairperson being widened to include former judges of the Supreme Court – only a former Chief Justice of India was eligible for the job before.

Section 3 of the PHR Act was changed to increase the number of members from four to five, and the number of deemed or ex-officio members from four to seven, including the chairpersons of the National Commission for Backward Classes, the National Commission of Protection of Child Rights, and the Commission for Persons with Disabilities. Human rights outfits have claimed that the changes give greater leverage to the government.

Structure and funds

The NHRC is made up of five divisions, including law, investigation, training, policy, and administration wings.

The law division is responsible for registration and disposal of cases while the investigation division verifies official claims and conducts spot inquiries, custodial death analysis, and fact-finding projects. The policy research, projects and programmes division carries out research and monitors NHRC compliance while the training division is responsible for awareness.

The administration division manages NHRC’s administrative and personnel matters, with its communication unit dealing with the media.

In the last three years, the NHRC’s expenditure stood at Rs 154 crore, but over 97 percent of this was functional spending, including salaries, professional fees, travel, office expenses, maintenance, etc. Barely four percent was spent on human rights research, seminars and conferences. 

After a complaint is filed, the NHRC decides whether to seek further information or an affidavit from the complainant in support of the allegations. The panel then either junks the complaint or seeks an official report or inquiry. The complaint is closed if the NHRC deems the official report or response appropriate. But it can pursue the case if it wants, carrying out a probe through its investigation wing. And if it finds a violation, it can recommend prosecution or disciplinary action against the guilty. It can also approach the court and file a case.

But despite the funds and the five divisions comprising 400 staff, the NHRC personnel lack adequate training to process the hundreds of complaints received each day based on the commission’s guidelines.

Political appointments?

The NHRC’s autonomy received a major blow with the appointment of its first ever political appointee under the Narendra Modi government in 2016. Then BJP vice president Avinash Rai Khanna was chosen as a member of the commission. 

Incidentally, the BJP had stressed on the significance of independent appointees before it came to power in the centre.

Meanwhile, the first appointment after the 2019 amendment was former Supreme Court judge Arun Mishra, who took over as the NHRC chairperson in June 2021. Mishra had courted controversy in February 2020, when as a sitting of the apex court, he described Prime Minister Narendra Modi as an “internationally acclaimed visionary who could think globally and act locally” at a global conference.

The panel that cleared Mishra’s name also inducted former Intelligence Bureau director Rajeev Jain as an NHRC member. It also approved the appointment of former bureaucrat Dr Dnyaneshwar M Mulay, whose book Naukarshahi Ke Rang was launched by Union minister Nitin Gadkari.

But how has the NHRC looked at complaints of rights violations over the years?

‘State instrument’

During the 2020-2021 farmers’ protest, the NHRC received multiple complaints about disruption of livelihoods of those living near the protest site, as well as about lathicharge on protesting farmers.

While the complaint about the lathicharge was dismissed with the panel relying on the police version, the NHRC directed the Delhi School of Social Work to depute teams to assess the disruption of livelihoods and the Indian Institute of Economic Growth to examine the adverse impact of the farmers’ agitation on industrial and commercial activities.

In December 2019, when police personnel barged into Jamia Millia Islamia and were captured on camera caning students amid protests against the controversial citizenship law, the NHRC initially asked the government to identify the erring officials, take “suitable action”, and compensation to injured students. 

Noticing an absence of compliance of the NHRC’s recommendations, the complainant approached the panel, but it refused to reopen the case. “At no stage the commission intended to carry the matter further in a supervisory role calling for compliance.”

The conclusion of the NHRC’s spot inquiry later appeared to echo the police version. It blamed students for the police action and demanded to know the “real motive” behind the anti-CAA protest.

More noticeable has been the commission’s role during the crackdown on activists and human rights defenders.

When Amnesty International shut its operations in India in September 2020 citing “reprisals” from the government, the NHRC took suo motu cognisance of a news report and directed the Union home ministry to file a report in the matter. 

But again, relying on the home ministry’s claim that the Enforcement Directorate had found Amnesty’s activities questionable, NHRC closed the case in November 2020.

The commission also adopted silence when the government cracked down on several human rights outfits over alleged violations of the FCRA.

The death of tribal rights activist Stan Swamy, who died due to Covid in July 2021, nine months after his arrest in the Bhima Koregaon case, raised more questions about the NHRC’s role. 

It had taken an application and a month after it for jail authorities in Maharashtra to provide Swamy a straw and sipper to drink water – his hands were too shaky due to Parkinson’s disease. Swamy had repeatedly approached court saying that he was being denied medical facilities in jail. 

But the NHRC only took note a day before his death, issuing a notice to the Maharashtra government to ensure his basic human rights are protected. 

While the United Nations Working Group on Arbitrary Detention noted that Swamy died in “circumstances that were utterly preventable”, O P Vyas, a former senior employee at NHRC who was involved in Swamy’s proceedings, insisted that the rights body had taken adequate steps in the case. 

“All these allegations against NHRC on Stan’s case is nothing but a campaign to malign NHRC,” he said.

In November 2020, NHRC had received a complaint from members of the European Union seeking its intervention against the judicial harassment and pre-trial detention faced by nine human rights defenders in relation to the Bhima Koregaon case.

The EU members requested that the charges be dropped, these activists be immediately released, and the authorities desist from action against more. While the NHRC took cognisance of the EU request, it closed the case on the same day saying  that it is not desirable to interfere with the judicial process. 

In another case linked to NIA raids at premises linked to at least 20 rights activists in Telangana and Andhra Pradesh in 2021, the NHRC had disposed of the case by referring the complaint to the union home ministry for “appropriate action”. After no response was received from the home ministry, the complainant again approached the commission multiple times, but the NHRC refused to reopen the case.

Last year, after the violent protests over Nupur Sharma’s anti-Prophet remarks, the house of activist Afreen Fatima was demolished in Prayagraj – her father and activist Javed Ahmed was accused by officials of “inciting” the protests. However, the NHRC referred the complaint against the demolition to the district magistrate for “appropriate action.”

“In cases of serious human rights violation, NHRC often calls an action taken report or initiates its own inquiry. But this direction to take appropriate action shows it has no interest in pursuing the case further,” said Lenin Raghubanshi, convener of the People’s Vigilance Committee on Human Rights and the complainant in the case.

Kirity Roy, secretary of MASUM, an outfit that focusses on rights violations by security forces in border areas, said many cases filed by the organisation end with the NHRC seeking a report from the authority or directing them to take “appropriate action”. “One approached the NHRC after his efforts to get justice failed at the level of local authorities. Now if NHRC sends the complaints to the same authority for appropriate action, what do you expect to be the outcome,” asked Roy.

In a periodic review in 2017, the NHRC had told the United Nations Human Rights Council that the use of plastic pellets by security forces in Kashmir is controversial. “NHRC has taken up a case on the matter but withholds its comments now because human rights of both sides are involved, when young crowd pelt stones at the police personnel.”

That wasn’t all. On violence by cow vigilantes, it said, “The fringe of the right wing Hindutva brigade is alleged to be behind these incidents which are few and far between. Though disquieting, it is too early to assess as to be a threat to secular and pluralistic structure of Indian society.”

Last month, the UN high commissioner for human rights, in a letter to external affairs minister S Jaishankar on the outcome of the latest periodical review, said that “the tightening of space for human rights non-governmental organisations is of concern, including through use of the Foreign Contribution (Regulation) Act”. “The proliferation of hate speech and violence against religious minorities is a concern that was raised prominently during India’s review.”

Amid such concerns, press freedom has not been entirely unimpacted.

Last year, when Kashmiri journalist Sana Irshad Matto was barred from travelling to New York to receive the Pulitzer Prize, a complaint was filed at the NHRC, alleging that several journalists from the erstwhile state have been put on a no-fly list. But NHRC refused to intervene. “Article 19 (1) of the Constitution of India is subject to the conditions mentioned in the Article 19 (2), (3), (4), (5) and (6) of the Constitution of India.”

Golden era

The NHRC has had its golden period too. As per former employees, it was during the tenure of the first three chairpersons. 

“There were a lot of cases that NHRC handled efficiently in that period. Be it the Punjab mass cremation case where NHRC was referred by the SC to ensure compensation to victims or the Allahabad ‘living dead’ case. There had been multiple instances of court referring cases to the commission…The same has drastically reduced in the post-2006 period. This only shows the credibility that the commission used to have at the initial period,” a former employee said.

As recently as this month, the Supreme Court appointed panel on Manipur lacked any NHRC representation.

Another former official pointed to the role played by the rights body in the aftermath of the 2002 Gujarat riots, documenting the shortcomings of the state and central government in safeguarding citizens, and helping with relief, rehabilitation, and access to legal justice. NHRC had also moved the Supreme Court to oversee the probe and trial of the major cases.

Last month, the UN high commissioner on human rights had pointed to the continued existence of the Unlawful Activities Prevention Act. But decades before such global criticism about such laws, it was the NHRC which had played a key role to ensure the UAPA’s predecessor, the Terrorist Disruptive Activities (Prevention) Act or TADA, was allowed to lapse in 1995 with a letter to MPs.

Newslaundry has mailed a questionnaire to the NHRC chairperson. This report will be updated if a response is received.

“The commission used to take firm stands on issues of human rights. Be it on TADA, the Prevention of Terrorism Bill, 2000, or consistent work on bonded labour. These would always be part of NHRC’s glory,” a former official said. “Justices Ranganath Mishra, M N Venkatachaliah and J S Verma had vision and were fearless. So the working of the  commission was also different from what it is now.”