“NHRC, India retains its status of accreditation with GANHRI,” reads a press release from 2018 on the National Human Rights Commission’s website. There is, predictably no 2024 update. In fact, it is doubtful whether one would find a press release explaining how the same Global Alliance of National Human Rights Institutions (GANHRI) had put India’s accreditation on deferral in 2024 and that the Sub-Committee on Accreditation will decide on this when it meets in March 2025.
Recently, Rahul Gandhi and Mallikarjun Kharge – leaders of opposition in Lok Sabha and Rajya Sabha registered their dissent over the selection process of the NHRC Chairperson calling it a ‘fundamentally flawed’ and a ‘pre-determined’ exercise that ignored consultation and consensus. The dissent note has been made public and can be accessed here.
The previous Chairperson Justice Arun Mishra was appointed to the post 9 months after he retired from the Supreme Court. Arun Mishra had not only described PM Modi as a versatile genius at a public function while being a judge at the Supreme Court, but he also later praised the government for their ‘untiring’ efforts to foster peace in Jammu & Kashmir while being the NHRC Chairperson. The appointment of Justice Arun Mishra as NHRC Chairperson did attract criticism.
From being a flagship institution that people relied on for addressing human rights grievances to its current state of diminished credibility, the reasons for the NHRC’s decline lie not just in the current establishment’s zeal to politicise institutions but also in its inherent structural flaws. This article will highlight one of such structural flaws—lack of independence due to flaws in the appointment process.
The National Human Rights Commission (NHRC) of India was established on October 12, 1993, under the Protection of Human Rights Act (PHRA) of 1993, later amended in 2006 and 2019. As an independent statutory body, the NHRC serves as the watchdog for human rights in the country, ensuring the protection of rights related to life, liberty, equality, and dignity as guaranteed by the Constitution of India and international covenants.
Composition and appointment
The NHRC is a multi-member body comprising a chairperson, five full-time members, and seven deemed members. The Chairperson is typically a retired Chief Justice of India or a Supreme Court judge. The full-time members include:
- One member who is or has been a Judge of the Supreme Court of India.
- One member who is or has been the Chief Justice of a High Court.
- Three members appointed from among persons knowing of, or practical experience in, matters relating to human rights, with at least one being a woman.
- The deemed members are the Chairpersons of the National Commissions for Scheduled Castes, Scheduled Tribes, Minorities, Women, Backward Classes, and the Chief Commissioner for Persons with Disabilities.
Appointments to the NHRC are made by the President of India based on the recommendations of a Selection Committee comprising the Prime Minister (Chairperson), the Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha, the Leaders of the Opposition in both Houses of Parliament, and the union home minister. The Chairperson and member serve for a term of three years or until they reach the age of 70 years whichever is earlier and are eligible for reappointment following the completion of their term.
The President can remove the chairperson or any member of the office if she/he is adjudged insolvent or; engages during his term of office, in any paid employment outside the duties of his office or; is unfit to continue in office because of the infirmity of mind or body or; is of unsound mind and stands so declared by a competent court or; is of unsound mind and stands so declared by a competent court or; is convicted and sentenced to imprisonment for an offence. The President can also remove the Chairperson or any members on the grounds of proven misbehaviour or incapacity. The procedure for the removal however involves referring the matter to the Supreme Court for an inquiry and removing the member on the court’s advice.
Functions and powers
The NHRC is endowed with a broad mandate to promote and protect human rights in India. Its key functions include:
- Inquiry and Investigation: The Commission can suo moto take cognizance of complaints of human rights violations or negligence in preventing such violations by public servants. It can also intervene in ongoing judicial proceedings involving human rights issues with court approval.
- Inspection of Custodial Institutions: The NHRC has the authority to visit jails and other state-controlled institutions to assess the living conditions of inmates.
- Review of Safeguards: It reviews legal safeguards for the protection of human rights and suggests necessary remedial measures.
- Research and Awareness: The Commission undertakes and promotes research in the field of human rights.
- Encouragement of NGOs: It encourages the efforts of non-governmental organizations and institutions working in the field of human rights.
While the NHRC can make recommendations to the government, its decisions are not legally binding. However, it plays a crucial role in highlighting human rights issues and advocating for policy changes.
The NHRC did some pathbreaking work in cases like the Gujarat Carnage case in which it had taken suo moto cognizance through media reports and initiated inquiry into the violence; approached the Supreme Court on behalf of riot victims. In 1997, the NHRC wrote to Chief Ministers regarding the procedure to be followed in cases of deaths in police encounters. This was done based on a complaint brought before the commission by the Andhra Pradesh Civil Liberties Committee (APCLC). Also in 1997, and thereafter right until 2004, The National Human Rights Commission (NHRC), which went through 2,097 cases of killing of youth and mass cremation of their bodies by the Punjab police during the peak of militancy in the State, has ordered a relief of Rs. 27.94 crore to the families of 1,513 victims of such extra-judicial killings. In both the Gujarat carnage case (2002-2004 onwards) and in the Punjab Disappearances case (1997-2004) the NHRC exercised its statutory rights and moved Article 32 petitions on the issue before the Supreme Court of India. Critically, on draconian anti-terror laws like POTA and TADA too, the NHRC has taken a strong stand. In 2000, “Prevention of Terrorism Bill, 2000: NHRC’s Opinion” The National Human Rights Commission has taken the view that there is no need for the enactment of a law based on the Draft Prevention of Terrorism Bill, 2000. This unanimous view was taken at a meeting of the Full Commission held on 11 July 2000 and elaborated in a detailed Opinion issued on July 14, 2000. Earlier the NHRC Chair had even written to all Members of Parliament asking them to repeal the stringent Terrorist and Disruptive Act.
Issues with NHRC
There are multiple issues that restrict the scope of NHRC and hinder it from realising its true potential to be an active safeguarding entity of human rights in India. Not only are its recommendations not binding on the government, but it also has jurisdictional limitations i.e. it cannot address violations by private individuals or entities. It does not have the authority to penalise the authorities that fail to implement its recommendations.
The credibility crisis of the NHRC is not just about operational inefficiencies but is rooted in an appointment process dictated by the ruling government. If the government wants a toothless NHRC, it can have one with little effort. Only an independent NHRC, free from political interference, can demand the resources and autonomy it needs but when led by those who merely echo the government’s line, it risks sinking deeper into irrelevance, eroding its very purpose.
What could constitute reform?
There is a serious need to re-imagine how the appointments are made to NHRC.
The Sub-Committee on Accreditation of the GANHRI noted that the current selection committee does not sufficiently promote broad consultation or participation in the selection process. It also noted that the current process does not maximise the number of candidates from a wide range; that the committee does not provide for the formal involvement of civil society organisations in the process. It had suggested a formalisation process to publicise vacancies broadly, to maximise the number of potential candidates from a wide range of societal groups, and to assess applicants on the basis of pre-determined, objective, and publicly available criteria.
The Paris Principles, a set of international guidelines for National Human Rights Institutions (NHRIs), layout key principles regarding the composition and appointment of NHRIs to ensure their independence and pluralism. Principle 5 emphasizes that the composition and appointment process should guarantee pluralistic representation of various social forces involved in human rights protection.
This principle highlights the importance of diverse perspectives within the NHRI, enabling it to effectively address a wide range of human rights concerns. The selection process, whether through elections or other means, must ensure the inclusion of representatives from various segments of society.
The Paris Principles specifically recommend the inclusion of representatives from:
- Non-governmental organizations (NGOs) focus on human rights, racial discrimination, trade unions, and professional organizations.
- Different philosophical or religious schools of thought.
- Academia, including universities and qualified experts.
- Parliament
- Government departments, but only in an advisory capacity.
A first step would be the incorporation of these principles in letter and spirit in the PHRA, 1993.
Conclusion
The National Human Rights Commission of India stands at precarious crossroads, embodying both the promise of justice and the peril of irrelevance. Yet, all is not lost. The challenges facing the NHRC, though significant, are not insurmountable. Incorporating the Paris Principles in full—ensuring transparency, pluralism, and independence in its appointments—is an essential first step. Equally critical is the empowerment of the NHRC to enforce its recommendations and expand its jurisdiction to cover private entities, enabling it to address the multifaceted realities of human rights violations in contemporary India.
If these reforms are enacted with sincerity and urgency, the NHRC can reclaim its foundational ethos and emerge as a resilient institution, capable of standing firm against injustice regardless of the prevailing political winds. Failing to act, however, risks relegating the commission to a symbolic relic, unable to protect the very rights it was created to uphold.
(The writer is part of the organisations research team)
Related:
Nothing ‘Right’ about India’s Human Rights Commission
Major embarrassment for India: UN rights body puts NHRC accreditation on hold