Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I


Published on

Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I
Harsh Dobhal, Mathew Jacob

Published in: Education
1 Like
  • Be the first to comment

No Downloads
Total Views
On Slideshare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I

  1. 1. VOLUME-I EDITED BYHARSH DOBHAL & MATHEW JACOB human rights law network new delhi, india
  2. 2. rugged road to justiceA Social Audit of State Human Rights Commissions in IndiaVolume-I, April 2012© Socio Legal Information Centre*ISBN 81-89479-83Edited ByHarsh DobhalMathew JacobCopy EditingAnupam KishoreSarah PughRavindra KarnenaResearch and CoordinationWest Bengal: Kirity Roy, Debashis Banerjee, Mathew JacobAssam: Debasmita Ghosh, Sailen Dutta, Manjit Kumar Das, Raju DoleyKarnataka: Sheela R., Manohar R., Ailbhe Garvey, John Joseph, Bhavana Appana, Veena RaiKerala: Pretty Rachel Koshy, Mathew JacobAndhra Pradesh: D. Padmavathi, Hemalatha, Mathew JacobUttar Pradesh: Lenin Raghuvanshi, Neha Wadhawan, Rudra Prasad Mishra, UshaDesignChetna BoraPrinted atShivam SundaramC-9, Green Park Extn., New Delhi, IndiaPublished byHuman Rights Law Network(A division of Socio Legal Information Centre)576, Masjid Road, Jangpura, New Delhi – 110014, IndiaPh: +91-11-24379855/56Email:, Website: www.hrln.orgSupported byEuropean Union Dan Church Aid DisclaimerThe views and opinions expressed in this publication are not necessarily views of the HRLN.The presentations in this publication have been paraphrased from oral, sometimes impromptu,speeches made by the participants. Every effort has been made to avoid errors, omissions, andinaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, theHRLN takes the sole responsibility.*Any section of this volume may be reproduced without prior permission of the HRLN/SLICfor public interest purposes with appropriate acknowledgement.
  3. 3. AcknowledgementsA t the outset, we express our deep gratitude to the victims and their family members for reposing their faith in the Independent People’s Tribunal on the functioning of State Human Rights Commissions, and for displaying remarkable courage in coming out in front of the jury to narrate their talesof horror fearlessly. We are grateful to hon’ble jury members, some of whom were contacted at the lastminute, who took time off from their busy schedule, travelled all the way to differentplaces, gave patient hearings to victims, studied all the cases meticulously and finallyput down their incisive findings and recommendations. This volume owes everything to members of the HRLN units in West Bengal,Assam, Karnataka, Kerala, Andhra Pradesh and Uttar Pradesh. Despite all odds andbusy court schedules, HRLN lawyers and social activists are doggedly pursuing theirdream for justice and peace. They have worked tirelessly for days and nights. Theywere faced with the challenging task to convince the victims’ families to come forthand depose before the tribunal. Their guidance and leadership in each state has beenremarkable, before and after the tribunal process. Much thanks to the volunteersand students who have contributed immensely through research, documentationand logistics. We would like to acknowledge the untiring efforts of collaboratingorganisations in these states. Our special gratitude to Kirity Roy of West Bengal, Lenin Raghuvanshi of UttarPradesh, Matthew Phillip and Manohar of Karnataka and Murali of Andhra Pradeshfor their massive support and encouragement in the entire process. These individualshave provided the much-needed strength with all possible help in order to make thetribunals as meaningful forums. We are also thankful to all the following organisations who collaborated withHRLN towards organising the IPTs: West Bengal - Banglar ManabadhikarSuraksha Mancha; Amreswar Jana Seva Sangha; All India Anti CorruptionOrganisation; Bamunia Janokolyan Samity; Basanti Border Dospanchal SurakshaSamity; Bhangore Sankhya Laghu Mahila o Shishu Unayan Samity; Bidhan SaraniIntegrated Disable Welfare Society; Care Home; Childline (East Midnapur);New Alipur Prajak Development Society; International Organisation for Human iii
  4. 4. Rights Protection; Lodha Shabar Kalyan Samity; Praajak Malda; Right Track; Sruti Disability Centre; Narikel Bariya Vivekananda Seva Sangha. Assam - Manab Adhikar Sangram Samittee; All Assam Students Union; Assam Tea Tribe Students Association; Society for Social Transmission and Economic Progress; Asian Centre for Human Rights; Women Empowerment Cell; People’s Rights Forum; Childline; North East Network; Legal Assistance Forum. Karnataka - Karavali Ale; People’s Democratic Forum; South India Cell for Human Rights Education & Monitoring; People’s Union for Civil Liberties; Karnataka Dalit Mahila Vedike; National Dalit Movement for Justice; Mangalore Secular Forum; National Confederation of Human Rights Organisations; Stree Jagruti Samiti. Kerala - Cultural Academy for Peace; Parivaar Kerala; Pratyasha; People’s Union for Civil Liberties; People’s Watch; National Domestic Worker’s Union; National Network of Positive People; Welfare Service Society. Andhra Pradesh - Aman Vedika; Association for Promoting Social Action; Church’s Auxiliary for Social Action; Center for Caring Citizens; Caring Citizens Collective; Campaign for Housing and Tenural Rights; Civil Liberties Monitoring Committee of India; Confederation of Voluntary Associations; Centre for Social Justice; Child Rights Protection Forum; Human Rights Forum; International Human Rights Association; Mountfort Social Institutions; M Venkatarangaiah Foundation; National Alliance of Dalit Organisations; National Dalit Forum; Parivarthan Hyderabad; People’s Union for Civil Liberties Andhra Pradesh; Swadhikar. Uttar Pradesh - Uttar Pradesh Alpsankhayak Utpeedan Manch; People’s Vigilance Committee on Human Rights; People’s Union for Civil Liberties; People’s Union for Human Rights; Patha Dalit Adhikar Manch; Asangatith Mazdoor Manch; Dynamic Action Group; Savitri Phule Mahilla Adhikar Manch. Each state-wise chapter of the social audit report is the cumulative outcome of a prolonged process where a number of individuals have contributed. Conceptualising the IPT process, identifying the cases, approching victims and organisations in the far- flung areas, convincing and bringing them to the venue, meticulous documentation of cases and finally drafting the report has been an ardous journeys. We have tried to give credits to as many persons as possible in the following chapters but it is difficult to mention all names here. We are grateful to all of them. We thank Rekha Koli for filing RTIs and follow up in every state, thus contibuting to the background research. Finally, we must thank Ravindra Karnena for much required help in copy editing hundreds of pages of the report. Last, but not the least, we thank our colleagues and friends Anupam Kishore and Sarah Pugh for painstakingly going through the draft, making corrections and giving final touches to this volume. —Harsh Dobhal & Mathew Jacobiv SHRC: SOCIAL AUDIT REPORT
  5. 5. ContentsIntroduction 1WEST BENGALUrsula Urdillo, Shreya Bhattacharya, Nivedita Guhathakurta, Kevin ClarkeEXECUTIVE SUMMARY 25chapter-Ipatterns of violations and functioning of WBSHRC 38 CHAPTER-IITestimonies 80interview with justice Chittatosh Mukherjee,former chairperson of wbshrc 103chapter-IIIJury Report 104assamAlin Mohanta, Nita Das, Mathew Jacob, Harsh DobhalEXECUTIVE SUMMARY 113chapter-Ipatterns of violations and functioning of ASHRC 124CHAPTER-IITestimonies 140EXPERT & JURY observations 183CHAPTER-IIIJury Report 196 SHRC: SOCIAL AUDIT REPORT v
  6. 6. Contents karnataka Mathew Jacob, Harsh Dobhal, Maya Cheringhandy Patteri EXECUTIVE SUMMARY 203 chapter-I patterns of violations and functioning of kSHRC 214 CHAPTER-II Testimonies 228 Expert observations 308 WRITTEN SUBMISSION TO THE JURY MR. JAVED PASHA, SECRETARY, kshrc 316 chapter-III jury report 320 kerala Heather K Sager, Jerome Belanger, Sandhya Raju EXECUTIVE SUMMARY 327 chapter-I patterns of violations and functioning of kSHRC 340 CHAPTER-II Testimonies 348 chapter-III jury report 372vi SHRC: SOCIAL AUDIT REPORT
  7. 7. ContentsANDHRA PRADESHHeather K Sager, M A Shakeel, M ChalapathiEXECUTIVE SUMMARY 379chapter-Ipatterns of violations and functioning of ApSHRC 390CHAPTER-IITestimonies 404CHAPTER-IIIJURY REPORT 430uttar pradeshHeather K Sager, K K RoyEXECUTIVE SUMMARY 439chapter-Ipatterns of violations and functioning of upSHRC 452CHAPTER-IITestimonies 462CHAPTER-IIIJURY REPORT 482conclusion 489 SHRC: SOCIAL AUDIT REPORT vii
  8. 8. INTRODUCTIONT he need to have independent bodies which will oversee and monitor the State’s protection and promotion of human rights and contribute towards such policies is widely acknowledged and established within the frame- work of the Constitution of India. The Indian Consti-tution is a repository of these human rights available to citizens andpersons living in India. The majority of these rights are availableagainst the State and it is the duty of the State to guarantee the pro-tection of these rights. The Constitution also sets out the manner inwhich these rights can be enforced. The establishment of independ-ent institutions is an effort to further the commitment of the IndianState under the Constitution, and to help it fulfill its commitmentunder several international human rights conventions which man-date the State to respect, protect, promote and fulfill rights. The United Nations emphasises that national human rights institutions (NHRIs)should play a critical role “in promoting and monitoring the effective implementationof international human rights standards at the national level.”1 In order to dischargetheir functions in an impartial and effective manner, such institutions should be ac-corded independence and autonomy. They can be created either under the Consti-tution or a statute. In India, the statutory route has been the preferred mechanismfor establishing the majority of the human rights institutions (HRI). Whether suchinstitutions are indeed independent or not has been the subject matter of severalwevaluations. HRIs are uniquely positioned between the government and civil society organisa-tions. Yet, they have to be independent of the influence of both. This can be compli-1. “OHCR and NHRIs” at INTRODUCTION 1
  9. 9. cated, particularly for the national and state commissions of India, as they are supposed to be consti- tuted by the state as well as funded by them.2 In order to gain credibility and earn the confidence of the people, such institutions will have to discharge their functions without any fear or favour concerning the State. They should be willing to challenge the government and hold it to task for violations of hu- man rights. At the same time these institutions should not be driven by NGOs. Anne Smith describes the complexities: …if an NHRI is seen as being too close to the government or holding an agenda dictated by government departments, especially those who provide the funding, then they will be viewed by NGOs and the civil society at large as simply a puppet of the government and, therefore, damage their credibility. Conversely, if a NHRI allows NGOs to influence its workings such that an overly close relationship develops between the two, a NHRI will simply be seen as an- other “pro-NGO” ...Notwithstanding, if it is deemed to be pro-NGO, the NHRIs credibility in the eyes of the most powerful group, the government, will be diminished. (Ibid, 209) Unfortunately, HRIs in India are clearly allied with the State. They have effectively become an instrument of the state and have been largely viewed as puppets of the State. One can refer to K.G. Kannabiran for a further understanding of the same. In an article published in the Economic and Political Weekly in 19923, Kannabiran argued that the creation of such institutions was due to international pres- sure on India. India is constantly criticised for its human rights record, and therefore needs an institu- tion that legitimises the exploitative orders of the inhumane state agencies. India has therefore created bodies which guard and supervise the political system, whilst having no intention of reducing human rights violations. These are bodies with a mandate to protect and promote human rights but which will actually act like a shield for the state by giving the appearance of setting its human rights records straight in front of the international community. ...the government obviously doesn’t propose to give up its present policy. Then the present proposal is one of those familiar political sleight of hand devices like the appointment of commissions of enquiry under the ineffective and over-worked Commissions of Inquiry Act 1956. A human rights commission is not going to resolve the political crises. Until these are resolved, violence by the State is bound to continue ... If the government is really concerned about setting right its human rights record it has to take serious steps to rebuild the existing institutions, namely, the courts, instead of merely multiplying institutions. In fact it is more the responsibility of persons who regularly interact with these institutions, such as lawyers, public interest and human rights groups, jurists and academics to exert pressure on these institutions. The human rights record can never improve by the setting up of a commission without changing the existing social order. The debate on the setting up of a human rights commission should lead to a review of the functioning of the justice system and attempts have to be made to rebuild these institutions. The setting up of a human rights commission as a response to criticism of the government’s human rights record will at best be a formal act. This will not reduce human rights violations, but may be used to cover up such violations. (ibid, 2093) What Kannabiran argued in 1992 is still valid two decades later. Despite the creation of 21 state 2. Anne Smith, “The Unique Position of National Human Rights Institutions: A Mixed Blessing?, Human Rights Quarterly, 28 (2006), 904-946, at 909 3. Kannabiran, KG, “Why a Human Rights Commision?” Economic and Political Weekly, September 26, 1992, (Commentary). Page 2092-20942 SHRC: SOCIAL AUDIT REPORT
  10. 10. human rights commissions and a National Human Rights Commission, a National Commission forMinorities, a National Commission for Scheduled Castes, a National Commission for Scheduled Tribes,a National Commission for Women, a National Commission for Protection of Child Rights etc, the hu-man rights record of the State has actually worsened. However, India has attained a high level of legiti-macy and acceptance through the establishment of these commissions. These commissions have seldombeen successful in promoting and protecting human rights. Be it the cases of disappearances in Assam,killings by army and paramilitary forces in Kashmir, Manipur, West Bengal and Chhattisgarh, farmersuicides in Maharashtra and Andhra Pradesh, land acquisitions and mining in Orrisa and Jharkhand,droughts in Rajasthan and the rotting of food grains in the Haryana, atrocities against dalits and trib-als, crime against women or the Batla House encounter in New Delhi, all that the commissions havedone is seek a report from the Government of India or respective state government concerned. In somecases, they have carried out investigations and issued recommendations but these are seldom abided by. ‘Paper Tigers’ or ‘Toothless Tigers’ are the words that came up somewhat rampantly during theconsultation meetings held with various human rights groups across India. With mere recommendatorypowers can we expect any more from these commissions? The images of human rights activists protest-ing in front of the NHRC during the Batla House encounter are still fresh. Can justice be expected froman institution which is another organ of the perpetrator, i.e., the State? Or, in the struggle for justice,will approaching human rights institutions simply result in re-victimisation from the same forces thatare accused of the violation. The NHRC, being insensitive to the human rights issues, has asked thesame accused to carry out the investigation into the issues. In other words, the NHRC has asked thepolice to investigate themselves, and then submit a report. There is no doubt that there is a clear lackof political will amongst the commission members. This can clearly be correlated with the political ap-pointments in the commissions which will be discussed later in this section of the report. The action taken by the NHRC under the leadership of Justice J.S. Verma during the Gujarat riotswas exemplary. But there are not many success stories to count and mention with regard to the interven-tions made by the NHRC and SHRCs. During various meetings and Independent People’s Tribunals(IPTs) held on the functioning of the SHRCs across the country, a mixed feeling came to the fore con-cerning these institutions. The participants in these meetings were various civil society groups, humanrights organisations and individuals, lawyers, members of the media, retired judges of high courts andthe Supreme Court and other eminent civil society members such as academics and individuals fromother professions. While one part of civil society condemned the current functioning of the commis-sions and asked for their closure for reasons of huge investments, political appointment and wastage oftax payers’ money, the other group, though understanding and condemning the current functioning ofthe commissions, proposed a strengthening and streamlining of the commissions. That there is a need for human rights commissions cannot be denied. One of the prime reasons isthat they are quasi-judicial bodies with powers enshrined through the Constitution of India. They actas an accessible justice mechanism, an alternative to court proceedings which in India are very lengthy,time-consuming and unimaginably expensive. The NHRC and SHRCs have the power of a civil courtunder the Code of Civil Procedure, 1908. The commissions also have the power to move the highcourts and the Supreme Court. The Protection of Human Rights Act, 1993 (PHRA) specifically men-tions the establishment of a human rights court in each district. In some states they have been notifiedbut are not yet working, whilst in other states they are yet to be notified and not much information isavailable in the public domain with regard to their functioning. These human rights courts mostly existjust on paper, as revealed by a number of civil society groups during the IPT process. INTRODUCTION 3
  11. 11. Globally, HRIs have gained enormous acceptability. They are a recent phenomenon and their es- tablishment can be easily dated back two decades to the early 1990s. The international community had constantly moved for the establishment of national infrastructures for the protection and promotion of human rights, for bodies which would be constant watch dogs on matters related to human rights. This much was apparent at the Vienna World Conference on Human Rights in 1993. Later in Decem- ber 1993, the UN General Assembly adopted the principles relating to the status and functioning of national institutions for the protection and promotion of human rights, famously known as the Paris Principles. The Paris Principles are the benchmarks which clearly lay down procedures for the establish- ment and functioning of national human rights institutions. In the early 1990s, India was transitioning itself into the global market through newly adopted policies of liberalisation, privatisation, and globalisation. At the same time India was under enormous international pressure concerning its human rights records. In a neo-liberal framework, it was of the utmost importance for India to be accepted as a potential market and partner, and to have the adequate infrastructure that promotes and protects human rights. The first mention of the potential establishment of a human rights commission in India was in the election manifesto of both the Congress and Bharatiya Janata Party in 1991. The Congress party came to power in 1991 and in the year 1992 started having discussions on establishing human rights com- missions. On March 16, 1992, speaking in the Rajya Sabha, the then Home Minister, Mr. S.B. Chavan, mentioned that the proposed commission was to counter the false and politically motivated propaganda being spread by foreign and Indian civil rights agencies. On April 24, 1992, Mr. V Gadgil, the of- .N. ficial spokesperson of Congress, stated that the commission’s findings would act as correctives to the biased and one-sided NGO reports and would be an effective answer to politically motivated interna- tional criticism.4 The above statements by the home minister and the spokesperson of the ruling party make evident the international pressure under which the Act was passed, and the fact that the Indian State had no real interest in providing the institution with sufficient powers, resources and autonomy. The purpose of the establishment of the commissions and the enactment of the PHRA 1993 seems to have been driven by international pressure and to showcase India’s pro-human rights image to the international community. The State, in the meanwhile, has appeared to be continuing with the rights violations. There were hardly any discussions held before the enactment of the Act. Almost all the major civil society organisations were excluded from the seminars and consultations that took place. The govern- ment’s background note on the establishment of the commissions was not made public and placed before the Parliament. The government didn’t even follow normal parliamentary procedures of first referring a bill to the Parliamentary Standing Committee for scrutiny, but instead rushed the bill to be adopted.5 It was later referred to the Parliamentary Standing Committee where it faded from notice. The NHRC was established on September 28, 1993 by a Presidential Ordinance. Two months later, a fresh bill was submitted to Parliament and on January 8, 1994, after a relatively indifferent parlia- mentary discussion, the “Protection of Human Rights Act, 1993” won Presidential approval and came into effect.6 4. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, pages 2-3, SAHRDC, New Delhi 5. Nierhoff, S (2006), “From Hope to Despair: The Complaints Handling Mechanism of the National Human Rights Commission of India”, page 2-3, People’s Watch, Madurai 6. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National4 SHRC: SOCIAL AUDIT REPORT
  12. 12. Since the inception of the PHRA 1993, there have been talks about its amendment. The Act clearlycontradicts the Paris Principles, which will be discussed in detail in the later sections of this report. In1996, the Kerala High Court submitted a draft proposal for amendments to the NHRC’s proceduralregulations after conducting a spot study of various sections of the NHRC’s Law Division. A year anda half later, McKinsey & Co. prepared a report highlighting what it found to be the commission’s mainproblem – a severe backlog of pending cases – and suggesting solutions. In May 1999, the Staff Inspec-tion Unit (SIU) conducted a staff study of the commission, the first since its inception, at the requestof the Ministry of Home Affairs. Unfortunately, few, if any, of the extensive recommendations madein these reports have been implemented.7 Minor amendments were made in the year 2000 and 2006. It’s now almost two decades since the inception of the commission. To date, 21 SHRCs and anNHRC have been created. Article 21 of the Act states, “A state government may constitute a body to beknown as the...” In other words, it is not binding on states to establish an SHRC. The states of Haryana,Uttrakhand, Mizoram, Meghalaya, Nagaland, Tripura and Arunachal Pradesh still don’t have SHRCs.Furthermore, the SHRCs in many states are defunct and dormant for several reasons; for example, noappointments being made for long periods of time, no infrastructure by the government etc. Examplesof this can be seen in the SHRCs of Manipur and Himachal Pradesh. Many SHRCs came into existenceas a result of civil society movements and public interest litigations. When the NHRC was contactedin this regard, it claimed that it had already requested the state governments to establish SHRCs. TheNHRC and SHRCs are parallel bodies and the NHRC is not an appellate body for the SHRC. The following report is a social audit of the functioning of six SHRCs in West Bengal, Assam, Kar-nataka, Kerala, Andhra Pradesh and Uttar Pradesh. The objective for and methodology of undertakingthe social audit is mentioned below. This section will also give a critical understanding of the PHRA1993 vis-à-vis the Paris Principles with examples from the six states. A social audit of all the SHRCsand the NHRC is being conducted by the Human Rights Law Network (HRLN) in collaborationwith several civil society groups across India. The social audit reports of the remaining SHRCs and theNHRC will be published in subsequent volumes.OBJECTIVEThe NHRC and SHRCs were constituted following the PHRA 1993, with an aim to provide access tojustice to a number of people who find it difficult and expensive to approach Indian courts. However,despite this mechanism being in place, these commissions have not been able to achieve desirable re-sults, and the human rights situation has continued to deteriorate. Most of the violations reported tothese commissions are committed by the country’s law enforcement agencies and security forces. Thecommissions suffer from a number of handicaps, such as a lack of autonomy, politically made appoint-ments, inadequate resources and no independent investigative mechanism, thus making them incapableof effectively addressing violations. Over the years, there has been a huge trust deficit between thesecommissions and the people in general, and rights groups in particular. The country’s image as a vibrantdemocracy will be at stake if such institutions fail to live up to people’s expectations. The study of the institutions, which protect and promote human rights, specifically the interests ofmarginalised sections of society, is important, given that there is limited information available on theHuman Rights Commission of India”, pages 2-3, SAHRDC, New Delhi7. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the NationalHuman Rights Commission of India”, page 3, SAHRDC, New Delhi INTRODUCTION 5
  13. 13. actual functioning of these institutions and the positive gains obtained. With the growing number of incursions on human rights, these statutory institutions assume a lot of importance in the state. Such commissions play a significant role in evaluating existing safeguards, recommending amendments to strengthen the safeguards, inquiring into violations of rights by the State, and developing human rights literacy amongst the general public. Given the recent records of violations and of State complicity, we felt it was imperative to study this independent quasi-judicial body in each state, and to evaluate their work, results, function, powers and people’s assessment of these institutions in light of the statutory law and the international principles on human rights institutions. It is with this backdrop that we conceptualised the plan to engage with these institutions (by filing complaints and following them up, building a network of civil society closely working with the commissions, conducting IPTs and social audits, and disseminating awareness material), and con- vince lawmakers, government officials, the judiciary and media to strengthen these commissions, to build and change public opinion, to strengthen civil society’s capacity and partner with groups to en- gage with commissions, and to press for desired amendments to the Act through campaigns, lobbying and advocacy. RESEARCH METHODOLOGY For the purpose of our study, we are examining the working of all the functioning SHRCs across India. What are the benchmarks against which we can judge the SHRCs across 18 diverse states? What is the perception of the people and civil society organisations concerning the commissions and their work? What changes to the law are necessary for their effective functioning? These are some of the questions the final report will seek to answer. We believe that the key ingredient that determines the success or failure of a human rights institution is independence. The commissions should have the foundational, functional, operational, and financial independence to conduct their affairs and discharge their func- tions. We have attempted to assess whether the commissions are truly independent in their working, whether they are meeting their statutory objectives and whether the legislation itself is in compliance with the Paris Principles8 and other international standards such as the Commonwealth Secretariat’s National Human Rights Institutions Best Practice (2001), the ICHRP & OHCHR’s Assessing the Effective- ness of National Human Rights Institutions (2005) and Amnesty International’s National Human Rights Institutions: Recommendations On Effective Protection and Promotion of Human Rights (2001). The research methodology adopted for the purpose of the report included collecting data on the work of the commissions, like annual reports, cases and orders/recommendations passed by the com- missions. Additionally, we interviewed staff, members and chairpersons of the commissions and civil society organisations, and gathered media reports on the work of the commissions. We approached legal experts and former members and chairpersons of the SHRCs to throw light on the working of the commissions. In cases where we were denied access to information, RTI applications were filed under the Right to Information Act, 2005. The information collected was tested against the set standards and objective of the parent statute, the Protection of Human Rights Act, 1993 and the International Guidelines. 8. In 1993, the UN General Assembly adopted Principles relating to the Status of National Institutions (The Paris Principles) which laid down the core minimum standards on competence, composition, responsibilities, and methods of operation. There is a definite need to assess whether the Commissions are working in compliance with the Paris Principles6 SHRC: SOCIAL AUDIT REPORT
  14. 14. A. Document AnalysisPrimary data from the states of Uttar Pradesh, Andhra Pradesh, Karnataka, West Bengal, Assam andKerala was gathered; this included cases, complaints, orders/recommendations passed and annual re-ports of the last two years. We gathered information about the administrative set-up, complaints re-ceived and disposed of, significant work done, budgets, and details of staff from the annual reports ofthe SHRCs.B. Applications under the Right to Information Act, 2005We also obtained information about the total number of complaints received and disposed of, and thedetails of the staff working at the SHRCs through RTI applications. We have requested informationon annual budgets, action taken reports, and recommendations passed by the SHRCs in certain cases.The SHRCs have denied us information on specific reports and recommendations on the grounds thatthese are confidential. Inspections were requested under RTI Section 2(J) and a large volume of datawas analysed.C. Media ReportsWe tracked media reports on the commissions from 2006-2011 so as to assess the nature of their inter-ventions in matters concerning human rights issues.D. Independent People’s TribunalIn each state, to start the process of participatory analysis of the functioning of the SHRCs, a consulta-tion meeting was held. This meeting has the representation of people who have constantly engagedwith the SHRCs through complaints and research, and also a set of lawyers and activists from variousdistricts within the state that are trained in the procedures of approaching the commissions. This meet-ing helps by providing a detailed situational analysis of the commission’s functioning, capacity buildingof the people and the formation of a civil society working group which will engage with the commissionat various stages of the campaign and work towards strengthening and streamlining it. For the purpose of this study a format was developed and was sent to civil society organisations,legal experts, and the chairperson, members, secretary and staff of the commissions. The questionsranged from constitution of the commission, knowledge of the staff on laws pertaining to humanrights, initiatives in the last two years, powers, complaint mechanisms and relationship between thecommission and civil society organisations. The questions were framed to assess the independence,function, transparency and accessibility of the commissions. Samples of representative complaints weredocumented with all the available information in the testimony format. The objective of organising the IPTs is to engage with and look at the functioning of these commis-sions critically through the eyes of the victims, experts and human rights activists, thus to catalyse theSHRCs to function as effective, efficient, transparent and accountable institutions that address humanrights violations. The IPT exercise aims at putting together evidence dispassionately and comprehen-sively, so that cases of human rights violations not addressed adequately by the SHRC mechanism canbe brought before the courts and orders can be obtained to address specific failures and problems. IPTs were held in all the six states. The cases deposed before the jury in the IPTs pertained todiverse sections of people covering most part of the states. Thus the effort was made to select casesfrom as many parts of the state as possible that represent a certain pattern of vioaltion. The selectionprocess meticulosly ensured that cases of all vulnerable sections like women, dalits, tribals, children and INTRODUCTION 7
  15. 15. members of minority communities were taken up in the IPTs. Similary, it was ensured that the different and diverse patterns of violations such as custodial torture, extrajudicial killings, rape, violence against women and children, dalits and tribals, matters related to land rights, etc were represented in the IPT. Further, these cases were deposed before a jury panel comprising retired high court judges, senior ad- vocates, academicians and other renowned civil society members. Along with the victims, experts who have thorough knowledge and experience of the functioning of the SHRCs also deposed before the jury. After listening to the victims and experts, each jury passed its observations and recommendations with regard to the functioning of the commission and suggested ways of strengthening the instituion. PARIS PRINCIPLES The Paris Principles are the principal source of normative standards for HRIs. In 1991, the United Nations organised an international workshop, which resulted in the formulation and adoption of these principles. They are a detailed set of guiding principles for establishing and maintaining strong and effective HRIs. The Paris Principles were subsequently endorsed by both the UN Commission on Human Rights and the UN General Assembly.9 They started the process of serious international co- operation and standardisation of HRIs. The Paris Principles are broad and general. They apply to all HRIs, regardless of structure or type. They provide that a national institution should be established in the national constitution or by a law that clearly sets out its role and powers and that its mandate should be as broad as possible.10 They lay down four factors needed to establish and monitor the HRIs, namely independence through legal and operational autonomy, independence through financial autonomy, independence through appointment and dismissal procedures and independence through pluralism of composition.11 The first principle under the head ‘Composition and Guarantees of Independence and Pluralism’, clearly states that the HRIs should be pluralistic and should co-operate with a range of social and political groups and institutions, including non-governmental organisations, judicial institutions, pro- fessional bodies and government departments. It clearly mentions the involvement of HRIs with all stakeholders in civil society. It also clearly mentions the role of government departments as ‘advisors’. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of: (a)  Non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organisations, for example, associations of lawyers, doctors, journalists and eminent scientists; (b) Trends in philosophical or religious thought; (c) Universities and qualified experts; (d) Parliament; 9. General Assembly Resolution 48, U.N. GAOR, 85th meeting, U.N. Doc. A/Res/48/134(1993) 10. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR 11. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, page 21, SAHRDC, New Delhi8 SHRC: SOCIAL AUDIT REPORT
  16. 16. (e) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity).12 The third principle under this heading mentions the independence through legal and operationalautonomy of the HRIs. While it is important to have an HRI, it is equally important to empower itwith constitutional powers to carry out and enforce its mandate. In order to ensure a stable mandatefor the members of the national institution, without which there can be no real independence, theirappointment shall be effected by an official act which shall establish the specific duration of the man-date. This mandate may be renewable, provided that the pluralism of the institution’s membership isensured.13 It has to be noted that the idea of pluralism, or diversity, in the membership of a humanrights commission figures strongly in the Paris Principles. Pluralism, through the participation of peoplefrom a variety of professions across of civil society and from members of different marginalized groups,ensures a diversity of viewpoints within the commission and helps legitimize the roles of these com-missions. Maintaining pluralism is one of the most important factors in guaranteeing the efficacy of anHRI. It fosters independence from the government, and helps an HRI deal with complaints against theState with a reduced worry that the HRI will be improperly influenced by the State. The second principle under the heading ‘Composition and Guarantees of Independence and Plural-ism’, states that the HRIs should have an infrastructure that allows them to carry out their functions.Particular importance is attached to the need for adequate funding to allow the institution to be func-tionally and financially autonomous. The national institution shall have an infrastructure which is suitedto the smooth conduct of its activities, in particular adequate funding. The purpose of this fundingshould be to enable it to have its own staff and premises, in order to be independent of the governmentand not be subject to financial control which might affect its independence.14 The Paris Principles clearly lay down the factors that should be involved in the establishment andmonitoring of the HRIs, with special emphasis on plurality and independence. The principles also men-tion the functioning of the HRIs. The various functions of the HRIs are described in the principles as“responsibilities”, suggesting that these are the things that institutions are obliged to do.15 The functioning of the HRIs can be broadly categorised beneath the headings of recommendationsand proposals to the government, the protection and promotion of human rights, acting as a humanrights monitoring agency, the promotion of international cooperation, and compliance of the statewith regard to various human rights statutes and treaties, human rights education, and functioning as aquasi-judicial body (not a compulsion). The third clause, under the heading ‘Competence and Respon-sibilities’, clearly lays down the responsibilities of the HRIs.“ (a) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicise them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas: (i) Any legislative or administrative provisions, as well as provisions relating to judicial organisa-12. Paris Principles13. Paris Principles14. Paris Principles15. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on HumanRights Policy, OHCHR INTRODUCTION 9
  17. 17. tions, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures; (ii) Any situation of violation of human rights which it decides to take up; (iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters; (iv) Drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government; (b) To promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the state is a party, and their effective imple- mentation; (c) To encourage ratification of the above-mentioned instruments or accession to those instruments, and to ensure their implementation; (d) To contribute to the reports which states are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence; (e) To cooperate with the United Nations and any other organisation in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the protection and promotion of human rights; (f) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles; (g) To publicise human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.”16 The Principles provide that HRIs should make recommendations and proposals to governments on various matters relating to human rights, including existing and proposed laws, human rights violations and the national human rights situation in general. They require national institutions to promote teach- ing and research on human rights and organise public awareness and education programmes. The Paris Principles also address methods of operation and by implication, the powers of national institutions. They are entitled to consider any issue falling within their competence without authorisation from any higher authority. They are entitled to hear any person or gather any evidence needed to consider mat- ters falling within their competence. Furthermore, HRIs are called on to publicise their decisions and concerns, as well as to meet regularly.17 “(a) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its mem- bers or of any petitioner, 16. Paris Principles 17. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR10 SHRC: SOCIAL AUDIT REPORT
  18. 18. (b) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;(c) Address public opinion directly or through any press organ, particularly in order to publicise its opinions and recommendations;(d) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly concerned;(e)  Establish working groups from among its members as necessary, and set up local or regional sec- tions to assist it in discharging its functions;(f)  Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights (in particular, ombudsmen, mediators and similar institutions);(g)   In view of the fundamental role played by the non-governmental organisations in expanding the work of the national institutions, develop relations with the non-governmental organisations devoted to promoting and protecting human rights, to economic and social development, to com- bating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas.”18 The Paris Principles do not require HRIs to have a ‘quasi-jurisdictional’ function – that is, to handlecomplaints or petitions from people whose human rights are alleged to have been violated. However,where HRIs do have this function, the Paris Principles list particular obligations: — To seek an amicable settlement through conciliation, a binding decision or on the basis of con- fidentiality; — To inform petitioners of their rights, and available remedies, and promote access to them; — To hear complaints and transmit them to competent authorities; and — To make recommendations to competent authorities.19 The Indian NHRC and SHRCs have quasi-jurisdictional functions. This will be discussed in de-tail later in this section. A complaint can be brought to the notice of a commission by individuals,their representatives, third parties, non-governmental organisations, associations of trade unions or anyother representative organisations. In such situations, the HRIs need to abide by the above mentionedfour points. From the discussion above, it can be easily established that the Paris Principles clearly lay down theframework for HRIs. It can be said that the Paris Principles are the first systematic effort to enumeratethe role and functions of HRIs. While it can be called an ideal document with regard to the establish-ment of HRIs, it clearly lacks guidelines highlighting the functioning of the HRIs. For example, thePrinciples are silent with regard to cases against armed forces. The Paris Principles are a good startingpoint for discussion with regard to HRIs. The role of the Indian State is much larger than what hasbeen prescribed for in the Principles for an effective and strong HRI.PROTECTION OF HUMAN RIGHTS ACT 1993The narrative on the inception of the PHRA 1993 has already been dealt with in the earlier sections.While some practitioners call it a token and a toothless act, others are of the belief that whatever limited18. Paris Principle19. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on HumanRights Policy, OHCHR INTRODUCTION 11
  19. 19. provisions are prescribed for in the Act, if utilised to the fullest, they can lead towards the protection and promotion of human rights. This section is an attempt to glance through the Act and get an under- standing with regards to the powers and functioning of the commissions. The definition of human rights20 as per the Act is very clear. It reflects the fundamental rights enshrined in the Constitution of India and the Universal Declaration of Human Rights. It refers to rights relating to the life, liberty, equality and dignity of the individual. The underlying objective of the Act, as the name suggests, is to protect human rights in India. The Constitution of India is a reposi- tory of human rights available to citizens and persons living in India. The majority of these rights are available against the state, in that, it is the duty of the State to guarantee the protection of these rights. The Constitution also sets out the manner in which these rights can be enforced against the State. The NHRC and several SHRCs have been established through the PHRA 1993.21 Section 21 of the PHRA 1993, with regard to the establishment of SHRCs, has stated that, “A state government may constitute a body to be known as...” Legally it is not binding for states to have SHRCs. Many states like Karna- taka and Uttar Pradesh have seen Public Interest Litigations (PILs) filed by civil society groups for the establishment of a commission. Higher judiciary, on various instances, have asked state governments to establish the SHRCs. The NHRC ought to consist of a chairperson who has been a Chief Justice of the Supreme Court, one member who is, or has been, a judge of the Supreme Court, one member who is, or has been, a judge of a high court and two members who have practical knowledge and experience of human rights.22 The members of other national commissions are deemed to be the members of the NHRC.23 The chief executive officer of the commission is a secretary general.24 Similarly, the SHRCs ought to consist of a chairperson who has been a chief justice of a high court, one member who is, or has been a judge of a high court or district judge with a minimum of seven years of experience, and one member having practical knowledge and experience of human rights.25 Similar to the NHRC, the chief executive officer of the state commission is a secretary general.26 The appointment of chairperson and the members of NHRC is done by a committee consisting of the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition in Lok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairperson of Rajya Sabha.27 The duration of the term of the chairperson and the members is five years.28 Similarly, the appointment of the chairperson and members of the SHRCs is done by a committee consisting of the Chief Minister, Speaker of the Legislative Assembly, Minister in-charge of the Department of Home Affairs and the Leader of the Opposition in the Legislative Assembly.29 The duration of the term of the chairperson and the members is five years.30 20. Section 2 Definitions of PHRA 1993 21. Sections 3 and 21 of PHRA 1993 22. Section 3 (2) of PHRA 1993 23. Section 3 (3) of PHRA 1993 24. Section 3 (4) of PHRA 1993 25. Section 21 (2) of PHRA 1993 26. Section 21 (3) of PHRA 1993 27. Section 4 (1) of PHRA 1993 28. Section 6 (1 and 2) of PHRA 1993 29. Section 22 (1) of PHRA 1993 30. Section 24 (1 and 2) of PHRA 199312 SHRC: SOCIAL AUDIT REPORT
  20. 20. With regard to the functions and powers of the commissions, they have the power to look intoany matter of human rights brought before them through the victim or on behalf of the victim by acomplainant.31 Though it is largely argued that the commissions can only look into complaints againstpublic servants as mentioned in Section 12 (a) (ii), Section 12 (a) (i) clearly says that it has the obliga-tion to look into any complaint of violations of human rights. It also has the power to carry out suo motoinquiries.32 The commissions have dismissed a large number of matters stating that they are sub judice.They have the power to intervene in any proceeding involving any allegation of violation of humanrights pending before a court with the approval of such court.33 The commissions have the power to re-view and study the safeguards provided by the constitution, treaties and other international instrumentson human rights and institutions and make necessary recommendations to the government.34 The com-missions should involve and encourage the efforts of non-governmental organisations and institutionsand spread human rights literacy among various sections of the civil society.35 The commissions, while enquiring into a complaint, have the power of a civil court.36 Every pro-ceeding before a commission is deemed to be a judicial proceeding.37 A commission, for the purposeof investigation into a matter, can utilise the service of any officer or agency.38 The appointed officer orthe agency needs to submit a report before the commission within a stipulated time and on that reportthe commission, after satisfying itself with the facts (cross verifying and asking for replies from differentparties) will issue recommendations.39 The recommendations can direct the concerned for paymentsof damages, initiate proceedings for prosecution, and/or move the high court or the Supreme Court.40The recommendation issued by the commission has to be supplemented with a compliance report bythe government normally within a period of one month.41 However, in dealing with the complaintsagainst armed forces, the commission can only seek a report from the central government. Obtain-ing the report, the commission can either proceed with it or make its recommendations to the centralgovernment which is duty bound to furnish the action-taken report normally within a period of threemonths. The commission should then publish its report together with the recommendations and actiontaken. It has to be noted that other sections of this law are not applicable with regard to complaintsagainst the armed forces.42 The commissions are duty bound to furnish annual reports, and special reports if needed. The re-ports have to be tabled on the floor of the house by the government along with the action taken report.If any recommendation has not been accepted by the government, the reason has to be mentioned.43 One of the ground-breaking sections under the PHRA 1993 is the establishment of Human RightsCourts (HRCs). The HRCs were envisaged for a speedy trial in cases of human rights violations. In31. Section 12 (a) of PHRA 199332. Ibid33. Section 12 (b) of PHRA 199334. Section 12 (c), (d), (e) and (f) of PHRA 199335. Sections 12 (h) and (i) of PHRA 199336. Section 13 of PHRA 199337. Section 13 (5) of PHRA 199338. Section 14 (1) of PHRA 199339. Section 14 (2), (3), (4) and (5) of PHRA 199340. Section 18 of PHRA 199341. Section 18 (f) of PHRA 199342. Section19 of PHRA 199343. Section 20 of PHRA 1993 INTRODUCTION 13
  21. 21. each district a court of session may be specified as a human rights court. For each human rights court, there should be a specified public prosecutor or an advocate with not less than seven years of practice.44 The above sections have clearly laid out the broad understanding of the Paris Principles and the PHRA 1993. Based on the Paris Principles and the PHRA 1993, the following section tries to under- stand the functioning of six State Human Rights Commissions of West Bengal, Assam, Karnataka, Kerala, Andhra Pradesh and Uttar Pradesh. While looking into the functioning of the commissions, an attempt is also made to refer to the powers of the PHRA 1993 vis-à-vis the Paris Principles. For the same purpose the indicators used are Establishment, Independence, Appointments and Composi- tion, Infrastructure, Relationship with Civil Society, and Accessibility.45 Examples from the above- mentioned SHRCs will be quoted wherever deemed fit for a clearer understanding. ESTABLISHMENT The Paris Principles clearly state that for the establishment of the HRIs, they should be part of the law and entrenched in the Constitution. This legitimises the independence of a commission and enshrines it with legal powers. Following this, the NHRC and SHRCs were established under the PHRA 1993. The reasons for the Act, and how it came into existence have already been discussed in earlier sections of this report. Although the PHRA 1993 lays the ground for the establishment of the commissions, it con- tains many flaws contradicting the Paris Principles, in terms of independence, appointments, engaging with civil society etc. Civil society groups lobbied for amendments to be made to the PHRA 1993, and for it to be in accordance with the Paris Principles but, to date, they have been ignored. There has been a clear decline in the way the commissions function over the years if we look at the nature of complaints taken up and action taken hitherto. As mentioned, the social audit process brings out that the commis- sions’ failures are not only because of the weak PHRA 1993, but also because of the lack of political will of the commissions. Positive clauses with regard to the effective powers of the commissions have not been put into practice. While the Act refers to engagement with civil society organisations and encour- ages human rights work in the country, the commissions appear to be happy to ignore civil society and be content being an extension of the State. The PHRA and the establishment of the commissions serve as mere showpieces to portray a posi- tive image to the rest of the world. It has been an extremely sad state of affairs. India has yet to make its National Human Rights Plans of Action, an action it committed to at the World Conference on Human Rights in Vienna. The lack of will to uphold its own mandate has affected the entire state of affairs, and people who held great hopes for the commissions now tend to take the old route to justice back with the courts. There are visible gaps in the jurisdictions of the national and state commissions. The complainant is unaware of whom to approach in which case. Sometimes cases have been addressed by the NHRC whilst in other instances similar cases have been transferred to a SHRC. It also has to be noted that transfer of a case means closure at the NHRC’s end and is shown as a disposed of case, while in reality the complainant is still seeking justice. 44. Sections 30 and 31of PHRA 1993 45. The following indicators are part of the Benchmarks as prescribed by the OHCHR through its publication; Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy14 SHRC: SOCIAL AUDIT REPORT
  22. 22. INDEPENDENCEA commission’s independence reflects its effectiveness. It establishes its legitimacy and credibility. In-dependence from the government and any other private interest is the strong foundation on which acommission needs to be established. The indicators of independence are appointment mechanisms,terms of office, mandate, powers, funding, investigation etc. The PHRA 1993 clearly violates the Paris Principles when it comes to independence. The NHRCand SHRCs have been established by the PHRA 1993 and are answerable to the Parliament. The linebetween the legislative and the executive is very thin. Instead of answering to an independent authority,the NHRC and SHRCs are responding to the government of the day. The NHRC and SHRCs report tothe Ministry of Home Affairs, the same ministry which also oversees the work of the police, immigra-tion, communal harmony, border management, special laws for terrorism and insurgency etc. Althoughmost complaints lodged with the commissions are made against these departments, the NHRC andSHRCs appear to be bound by restrictions to move against them. This makes the commissions totallyineffective and allows a huge scope for government invasion into the commissions’ functioning. The PHRA 1993 fails to make the NHRC and SHRCs independent bodies. They receive instruc-tions from government ministers, since they are required to report to them by virtue of their appoint-ments having been made by them. There has been no recorded evidence of the NHRC and SHRCstaking suitable action against the government of the day or of moving a court to action. In most of thecomplaints of grave human rights violations, in which state parties are perpetrators, matters are closedby simply recommending petty compensations. The commissions’ silence on the issues of armed kill-ings and torture in various states, arbitrary arrests, sedition laws etc., are clear examples of the same.While the NHRC did brilliant work to take suo-moto action in the Gujarat carnage and conducted theinvestigation, its silence in the court was evident of government pressure. In the report from Assam, it can be seen that the NHRC and SHRCs have been quiet observersof secret killings and disappearances. Victims’ narrations and the commissions’ proceedings have beendocumented in order to investigate the role of the latter. In the case of Biman Bose46, it took the AssamSHRC 10 years to order a compensation of Rs. 20,000, while no action was initiated against the perpe-trators of the crime. This token-like justice clearly demonstrates the restrictions under which these com-missions operate. There are similar examples from the state of Karnataka, where the Karnataka SHRChas not moved an inch to protect the victims of communal attacks led by the members of the VishwaHindu Parishad and Rashtriya Swayamsevak Sangh. Attacks on progressive journalists have become acommon occurrence in the state. The commission in Karnataka is scared to move against the communalforces which have the support of the ruling BJP government. In West Bengal, the SHRC has not movedan inch in the huge volume of cases filed by many human rights groups on the issues of BSF killings.In cases of custodial deaths and brutal police tortures, there are instances where the commission has or-dered compensatory payments to victims of only Rs. 5000 and 3000. Most of the cases are, shockingly,still pending for many years. The story is no different in Andhra Pradesh, Kerala and Uttar Pradesh.Because commissions are not guaranteed their independence, they remain mere showpieces of the State. Payment of compensation is, on principle, not accepted by many civil society organisations. For anact of crime by State forces tax payers’ money is wasted, while the State forces and agencies continueto operate in the same way. There are no recorded instances available which prove that departmental46. This case was deposed in the Assam IPT organised by HRLN in Guwahati INTRODUCTION 15
  23. 23. proceedings or criminal charges have been initiated against the accused. The State and the commission are hand in glove when it comes to the protection of the accused fellow from their department. The commissions have zero independence when it comes to investigation into a matter of human rights violation. The investigation mechanism of the commissions is completely flawled in nature. In the reports from various states compiled in this edition, one can find several instances where the perpe- trators of the crime and the accused were asked by a commission to clarify the charges against them and furnish a report. Upon receiving a complaint of police torture, a commission has asked the same police to investigate the matter, and based on the report has closed the matter. Or, upon receiving a complaint of negligence by a government department leading to violation of human rights of the victims, the com- mission has asked the same department to conduct the investigation and furnish the report. It has been very shocking to learn that commissions seldom conduct independent investigations. This results not only in biased investigation and manipulations of facts, but in many instances in the form of a re-abuse of the victims for having approached the commission to file a complaint against the accused. Investigations of complaints concerning human rights violations are different to criminal investigations. Even in criminal matters, human rights violations can be investigated independently of the criminal charges. In such cases we need not have the police doing all the investigation. It can be conducted by a team comprising of doctors, academicians, psychologists, human rights activists etc. Financial autonomy of a commission guarantees its overall freedom. This also means an independ- ent way of operating, and no commitment to the government. But the commissions in India depend solely upon the Ministry of Home Affairs. The commissions don’t raise their funds on their own. The commissions should determine their budget and channel funds for the same. In the national plan, a separate fund is to be kept for the commissions to operate on. Financial independence will ensure the commissions are not accountable to the government but rather to the people. The financial situation of the commissions is very disappointing. During the visit to the Assam SHRC it was observed that even paper and printing resources were not available, and most of the time they have to be supplied by the people approaching the commission. In Karnataka SHRC, the corridors were filled with files and staff trying to sort through them, while the commission has asked the state government repeatedly for a new building to operate in. The situation of other commissions is no better. The staff members are also ap- pointed after requests to the government, and are sent to these commissions on deputation, more often on punishment posting. In brief, the commissions are completely under the control of the government of the day. Be it with regards to appointment, investigation, finance or their functioning. The idea of the Paris Principles, for an independent autonomous commission, has been defeated in the past two decades. APPOINTMENT AND COMPOSITION The composition and appointment process of the commissions is the most crucial element in determin- ing the independence and adequate functioning of a commission. The PHRA 1993 contradicts the Paris Principles on the appointments to and composition of the commissions. It has legitimised the appoint- ments in such a way that is always in favour of the ruling government. While the Paris Principles mention the diversity in the composition of the commissions, keeping it positioned between the government and civil society, the PHRA 1993 has given all the power to the government with regards to the appointments to the commissions. The provisions laid down by the Paris Principles have already been discussed in the earlier sections of this report. According to the PHRA16 SHRC: SOCIAL AUDIT REPORT
  24. 24. 1993, the appointment of members to the commissions is to be conducted by a committee comprisingof the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition inLok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairman of Rajya Sabha. If we lookcritically at the appointment committee, four out of six members are from the ruling government. It isevident that a person not acceptable to the ruling government can’t become a member or Chairpersonof the NHRC. The story is the same for the SHRCs. With the current provisions, the bias in appoint-ment can’t be dismissed. Most civil society groups see the appointments to the commissions as postretirement benefits for government friendly bureaucrats and judges. The commissions have turned outto be parking lots and means of welfare for the retired bureaucrats and judges. There has been no representation of members of civil society in the existing commissions. Humanrights activists are not welcomed onto the boards of the commissions. Members of State forces, who inmost instances have been party to or guilty of the crimes investigated, have been in the commissions.Representation of women in the commissions has been a serious worry. No woman has ever been ap-pointed as a member or chairperson of a commission. Representation of the marginalised, such as dalitsand tribals is also seldom seen. While the commissions deal with a large volume of complaints involv-ing women, dalit and tribal cases, the lack of representation of these sections of society makes themequally vulnerable and marginalised in front of the commissions too. Though the Act mentions theappointment of one member who has knowledge and experience of human rights work, this provisionis generally not adhered to. To ensure diversity in the appointment process, there needs to be an engagement between the gov-ernment and civil society. There need to be nominations for the commissions which can then be electedby the committee, which again needs to be comprised of members who are independent of the govern-ment. While the government argues that there are retired judges in the commissions who provide legiti-macy, these judges need to act like advisors for the commissions which should be represented by peoplewho have expertise in human rights and have carried on such work for a considerable amount of time. The composition of the commissions is also not adequate to deal with a large volume of cases.With only a chairperson and a few members, it is impossible to do justice to the complaints that comebefore the commissions. The commissions now need to move out from the national and state capitalsand have offices at the district level. It is extremely difficult for a person from a far-off village to continu-ously come to the state capital in order to deal with their case. The complainant incurs a huge amountof expenses in this way. Operating in each district would ensure that the workload of national and statecommissions is more appropriately distributed, and hence they would be more able to reach out toeveryone approaching them for justice. The narrative from the six states that we are looking at specifically is not encouraging. The commis-sions have constantly struggled to have a full board as per the current provisions of the PHRA 1993.States like Assam, West Bengal and Uttar Pradesh have run for years without a chairperson. When weapproached the Assam SHRC, there was no chairperson, and both the members had been on leave/medical leave for a long time. It operated with only one secretary who was on a part-time appointment.West Bengal and Uttar Pradesh have been without chairpersons for a considerable amount of time.Civil society groups in Uttar Pradesh allege that the seat was kept vacant for more than a year to accom-modate the current chairperson, since he had given a favourable order for the government. Through anRTI, it was found that he had come to the office for only some 30 odd days in the previous calendaryear. The situation of the southern states which are part of this report seems relatively better but thesame flaws can be observed from time to time. INTRODUCTION 17
  25. 25. With the current situation, it is evident that the commissions are actually at the mercy of the ruling government, whilst civil society, in all regards, is kept at the periphery of the operations. Out of a whole pool of civil rights activists in India, none has ever made it to the NHRC. The international community concerned with the functioning of human rights institutions should look into the matter, the reasons for this are loud and clear. In such a situation commissions are not doing anything but justifying the horrendous acts of the state. The criteria for appointment mentioned are in favour of the ruling government. Appointment to a commission has been laid out in such a way that an entire section of society, people who have been fighting for rights for several decades, have been excluded from the operations of the commissions. For the appointments to be transparent and pluralist in nature there need to be amendments to the existing PHRA 1993. The powers with regard to the appointment and composition have to shift to an autonomous body which looks into the functioning of the commissions. The direct appointment by the executive and the legislative is not desirable and the records of the last two decades show that they have failed to protect and promote human right in India. The commissions, as they stand, don’t reflect the social and political diversity of India. INFRASTRUCTURE Proper infrastructure remains a concern for the commissions in India. They are at the mercy of the government for everything with regard to their operations. Most of the SHRCs operate from the build- ings allotted to them by the state governments. Despite several years of existence none of them have managed to obtain their own buildings. Most of them are located among other government offices and share an inadequate amount of space. The NHRC, despite having been operational for the past two decades, and despite having a huge building, lacks financial resources and proper knowledge of human rights. This is the case with state commissions too. There can be genuine concerns raised when it comes to the infrastructure of the commissions in As- sam, Andhra Pradesh, Karnataka, Kerala, West Bengal and Uttar Pradesh. During the visit to the Assam SHRC, it was found that it operates from an old building that it shares with the Guwahati Metropolitan Development Authority. The building not only smells bad because of the lack of maintenance, but also, the staircases are dark and don’t contain a single light-bulb. The office is situated on the 3rd floor which makes it impossible for a disabled or elderly complainant to access. The Andhra Pradesh SHRC, when approached with regard to a few cases, seemed to have lost the details of the cases amongst their files. There was no file maintenance system and everything was just stacked haphazardly in a room. The at- titude of the staff towards us was also rather negative. The Karnataka SHRC meanwhile operated from a new building. They have been asking the government for an independent building for years but this has not been granted to them. The current office doesn’t have enough space to accommodate the com- mission’s staff. Many members of staff were working in the corridors of the floors allotted to the SHRC. This situation is similar with other SHRCs too. To enter into the West Bengal SHRC one needs to go through a security check like the ones at the airport. Very few amongst the commissions have a website. For those commissions who do have a website, there is hardly any information available with regard to the commission. The most operational website of all the commissions is that of the NHRC. It has to be mentioned that all these commissions are not disabled-friendly. Their presence amongst other state offices makes it difficult for victims to approach them. In some commissions, even to get a RTI reply, paper has to be furnished by the other party.18 SHRC: SOCIAL AUDIT REPORT
  26. 26. RELATIONSHIP WITH CIVIL SOCIETYFrom the above discussions it is quite evident that the commissions are allied with the governments.They have been set up to be just another government department. While their mandate is for the pro-tection and promotion of human rights, they are just engaged in giving a clean chit to the governmentand upholding its human rights record. The commissions’ relationship with civil society is very limited and restricted, if in fact there is anyrelationship at all. There is no membership of representatives of civil society in the commissions in anycapacity. While conducting the IPTs, the commissions stayed away from the proceedings and in mostcases we were told that the commissions are not answerable to civil society and that they are constitu-tional bodies answerable only to the government. Such is the attitude of these commissions that theyseldom engage in any concrete manner with civil society organisaitons and human rights groups. The commissions need to engage in human rights education programmes and build awarenessamongst the general public concerning their rights. No commission seems to be carrying out these ac-tivities. It was surprising to discover that even some lawyers and human rights activists don’t know thecommission’s address in their state. Over the years, the commissions have just fulfilled the bare mini-mum of their mandate, by being in existence, and they have never reached beyond this. The impressionof these commissions being just another government department is validated by the fact that they neverinvolve themselves with civil society. For members of civil society, the only way they can engage with the commissions is by way of be-ing a complainant. As mentioned before, the websites are not functional in most cases. Furthermore,the websites are mostly in English, thus making it difficult for the local people to understand them.The attitude of the commission members, and their view that they are supreme authorities, alienatesthem from the people. Even the most urgent of human rights violations, instead of being immediatelyinvestigated by the commission, are simply transferred from desk to desk. While the Karnataka SHRChas constantly asked the government for the involvement of civil society members in investigating com-plaints, the government has never paid this request any attention.ACCESSIBILITYCommissions mandated with protecting and promoting human rights ought to be accessible to thepeople, especially to those belonging to various marginalised communities. The commissions shouldgive special importance to hearing the complaints of such groups. Also, public information should beavailable and shared with a larger group through various mediums. The commissions in India operate from the state capitals. None of the commissions have shownany intent to move out from the comfort zone of the capital in order to be at district level, with theexception of the Karnataka SHRC. For people living in different districts in the state it is increasinglydifficult and expensive to come to the state capital again and again for their complaints. There is not asingle individual present representing the commissions in the districts. The commissions are not acces-sible to people with disabilities or to elderly citizens. The commissions in all the states have failed to equip themselves with a diverse staff. Most of theappointments are made by the government and most of the members are men belonging to the highersocio-economic strata of society. It is very difficult for a woman or individual from the marginalisedsections to approach the commissions and seek justice. In grave cases of custodial rape and torture, a INTRODUCTION 19
  27. 27. woman victim has to address her case to the exclusively male members of the commission. Sensitivity and compassion amongst the members is clearly lacking. Also the commissions have seldom conducted any activities in the past, whereby the people in far off districts can learn about the existence of the commissions and their powers. For most people, the commissions remain an unknown entity. There is a clear lack of awareness among the common people about the commissions, and therefore most of the complaints lodged with the commissions are sent by civil society groups on behalf of the victims. In accordance with the PHRA 1993, for the commissions to be more accessible, it is important that human rights education programmes are conducted in each district by the commissions along with civil society groups. Also, the commissions need to have representatives at district level, making it easier for people to approach them and follow up their cases. The establishment and proper functioning of the human rights courts will also help in this process. CONCLUSION The NHRC and SHRCs in India are currently in a grave state of disarray. The hopes of the millions of people who were advocating for these commissions have been turned into despair. While many have al- ready given up the hope of any improvement in the functioning of these commissions and do not want to engage with these institutions, there are yet a large number of activists, lawyers and social workers who for years have constantly engaged themselves with the commissions in an attempt to seek justice, work and campaign towards streamline their functioning and to help make them more effective. The idea of the IPT has been the same; to monitor and strengthen the functioning of the com- missions. These IPTs clearly depict a representative sample from each state of the voices of victims of human rights violation and the responses of the commissions. Examining the testimonies of victims from each state will give a clear idea of the functioning of these commissions. The jury reports are also indicative of the fact that reforms are needed in the functioning of these commissions by the way of amendment to the Act and by the way of proper compliance with the current provisions in the Act. With this attempt, we are hopeful that the idea of a strong commission is possible, whereby the commissions take strong cognisance of their current state of affairs and take necessary actions to protect and promote human rights effectively and efficiently.20 SHRC: SOCIAL AUDIT REPORT
  29. 29. West Bengal Ursula Urdillo | Shreya Bhattacharya Nivedita Guhathakurta | Kevin ClarkeSL.No 01 City KolkataTotal Cases before Jury 30 Date July 31, 2011Jury: Justice Malay Sengupta – Retd. Acting Chief Justice Sikkim High Court; Adv. Sadhan Roy Choudhry -Advocate Kolkata High Court; Mr. Sarfaraz Ahmed Khan - Assistant Professor, West Bengal National Universityof Juridical Sciences, Kolkata; Mr. Sujato Bhadra – Eminent Social ActivistNetworking GroupsBanglar Manabadhikar Suraksha Mancha; Amreswar Jana Seva Sangha; All India Anti Corruption Organisation;Bamunia Janokolyan Samity; Basanti Border Dospanchal Suraksha Samity; Bhangore Sankhya Laghu Mahilao Shishu Unayan Samity; Bidhan Sarani Integrated Disable Welfare Society; Care Home; Childline (EastMidnapur); New Alipur Prajak Development Society; International Organisation for Human Rights Protection;Lodha Shabar Kalyan Samity; Praajak Malda; Right Track; Sruti Disability Centre; Narikel Bariya VivekanandaSeva SanghaNote: In West Bengal due to a court order, whereby it is prohibited to hold ‘Tribunal’, we called the proceedings as a‘Fact-Finding Meeting’ on the functioning of West Bengal State Human Rights Commission.
  30. 30. The fact finding meeting on the functioning of west bengal state human rights commission
  31. 31. EXECUTIVE SUMMARYEstablishment of Human Rights CommissionsThe West Bengal Commission was the first State Human Rights Commission (SHRC)to be established in India. Established on January 31, 1995, by the State of West Ben-gal via notification No. 42 HS/HRC, it has the power to perform the functions setforth in Chapter V of the national wide Protection of Human Rights Act of 1993.The functions of the commissions are: “to inquire, on its own motion or on a petitionpresented to it by a victim or any person on his behalf into the complaint of – violationof human rights or abetment; or negligence in the prevention of such violation by apublic servant...”1 The commission begins this process by starting an investigation onits own (suo moto), following a petition submitted by a victim or any person on thevictim’s behalf or following a direction or court order. If evidence of abuse is found,the commission may recommend actions to the state government to redress the issue.Most redress granted comes in the form of monetary compensation for the victim orvictim’s family. Generally, the State Government in West Bengal accepts the recom-mendations given by the commission. In this sense, the commission constitutes anefficient instrument of redress. Although the birth of the commission brought about a resource for victims of hu-man rights violation, it faced a lot of opposition from the government and law enforce-ment agencies. For example, the Chief Minister Buddhadeb Bhattacharjee, in 1997, in-structed the police to use the guns provided by the government to combat crime and notto inconvenience themselves by worrying about criticisms by the commission, whichhe would ‘handle’. This hostile reaction by the executive highlights the importance forcommissions to hold sufficient powers to function independently from the govern-ment. Due to the ineptitude of the commissions, NGOs have brought claims againstthe commissions before the courts. Following one of these petitions, the CalcuttaHigh Court ordered in 2010 the establishment of a committee to ascertain the actionstaken by the commissions on cases of torture previously submitted before them andwhich had not received any response. This committee is allowed to make recommen-dations to the commissions. Unfortunately, to date no action has been recorded by thecommittee.1. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights(Amendment) Act, 2006 No. 43 of 2006, Chapter III, Section 12 (a) WEST BENGAL 25
  32. 32. Fact-Finding Meeting Due to the overwhelming inefficiency of the commission in West Bengal, it was evident that the role of the commission needed to be significantly improved. For example, many complaints submitted by NGOs before the commission remained in a stalemate. This resulted in NGOs submitting RTIs and writ petitions before the Calcutta High Court, however nothing resulted from this action. For these reasons, many NGOs started to resort to other human rights commissions, in their plea to improve the situation of human rights in West Bengal. Due to the overwhelming frustration with the national and state commissions, a Fact-Finding Meeting (FFM) was held on July 31, 2011, in Calcutta. The main objective of this event was to streamline and strengthen the commission to function as an effective, efficient, transparent, and accountable institution that addresses human rights violations. In so doing, twenty-one cases, which include torture, rape, fake encounters, extrajudicial killings, and inaction by authorities, were deposed by victims in front of a panel of four members. All the cases show negative aspects of the commission’s operation. For example, many cases describe incidents where complaints or petitions were filed, but there was no response or update regarding the matter. In addition, some cases describe incidents where the WBSHRC closed a matter due to ongoing investigations occurring in other departments. This was disturbing because the department that was investigating the matter was the same department that was being accused for the human rights violations in question; therefore, an independent investigation was not possible. Thus, the selection of cases reflects the lack of clarity in the commission’s operations, which favours political interference. Independence First, the legitimacy and credibility of a commission is strongly related to its independence from the government. Although the commission is limited by legislation, these limits should not hamper the commissions to efficiently carry out their mandate. However, the commission is dependent upon the state government for its funds and the personnel needed to accomplish its aims. This dependency has allowed the commission to become inefficient in protecting human rights. Therefore, the independence of the commission is non-existent. Jurisdiction and Adequate Power A defined jurisdiction that clearly establishes the scope of an institution facilitates an effective function- ing and prevents overlapping with other bodies. Although, the commission is granted with the power to investigate into complaints on allegations of human rights violations or abetment or negligence in the prevention of such violation, there are four restrictions limiting whether the commission can inves- tigate a matter or not. First, it can only investigate cases involving violations, abetment, or negligence by civil servants.2 Second, the commission may only investigate in a matter one year from its execution.3 Third, the commission cannot investigate allegations against the armed forces.4 Fourth, the commission 2. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No. 43 of 2006, Chapter III, Section 12(a). 3. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No. 43 of 2006, Chapter VIII, Section 36(2) 4. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.26 SHRC: SOCIAL AUDIT REPORT
  33. 33. may not investigate cases pending before another human rights commission.5 In regards to the one-yeartime limitation, this allows offenders to avoid the action of the commission. Furthermore, the commission has not fulfilled many of its functions under Section 12 of the Act.Although the commission does investigate allegations of human rights, there are no records of anyactivity aiming at monitoring and enhancing the fulfillment of international standards by domestic lawand its implementation.6 Therefore, the commission is losing an opportunity to enhance human rightsprotection. Also, Section 36 in Chapter VIII of the Act prevents the commission from inquiring into com-plaints under investigation by other human rights commissions. The Act recognises the similaritiesbetween the national and state commissions, however, the Act does not provide avenues or protocols toensure complementarity among human rights agencies. A better-defined jurisdiction or the establish-ment of committees with representation from all commissions to discuss jurisdictional matters couldsimplify overlapping related issues and help lessen the commissions’ workload. In addition, adequate power is necessary for the commission to fulfill its goal and mission. Thecommission has the capacity to make recommendations to the state government on different issues forthe protection of human rights, such as punitive actions against perpetrators of violations, grantingcompensation to victims or monitoring conditions of jails.7 However, these recommendations made bythe commission to the high courts are not binding on the state. This inevitably limits the ability of com-missions to transfer their work into real actions, and the ability of victims to see their rights fulfilled.AccessibilityAccessibility to the commission is essential to provide a resource to victims who have suffered violationsof their human rights. An institution cannot be accessed if the citizenry do not know of its existence oris ill-informed on its functioning. The public not being informed on the commission’s functions addsto the amount of complaints that are filed with the commission that may not be within its jurisdiction.This adds to the frustration of the public when they see their claims are unattended, and thus, under-mines the commission’s credibility. In addition, physical accessibility is a huge issue. There is only one office, which is located inBhabani Bhavan in Calcutta. The commission is located in an urban area, which adds to the hardshipof individuals who must give testimony or obtain advice there, in terms of transportation and costs.CooperationCooperation with NGOs working to protect and promote human rights is fundamental for the com-mission to increase its visibility and to reach the most vulnerable population in terms of human right43 of 2006, Chapter IV Section 19 and WBSHRC, ’The PHRA, 1993’, as amended by the Protection of Human ,Rights (Amendment) Act, 2006 No. 43 of 2006, Chapter V Section 29. ,5. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.43 of 2006, Chapter VIII, Section 36(1).6. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.43 of 2006, Chapter III, Section 12(d) and (f)7. WBSHRC, ‘The PHRA,1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.43 of 2006, Chapter III, Section 12 WEST BENGAL 27