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:

UN-linked body GNAHRI defers accreditation of NHRC India for second term, flags absence of autonomy and diversity

Nothing ‘Right’ about India’s Human Rights Commission

Major embarrassment for India: UN rights body puts NHRC accreditation on hold

The post NHRC: Need for accountability to human rights & reforms in appointing members appeared first on SabrangIndia.

 
Since its formation following a statute in 1993, in response to international commitments, the NHRC has functioned as an institution falling short of the immense expectations from a population getting more and more aware of their rights and violations by state and non-state actors.

From being called a toothless tiger to one that requires a far less centralised mode of operation, a serious limitation in the NHRC’s functioning has been the over arching domination of the political class in choosing those that represent this institution. The chairperson and members need to be of such a calibre who actually become the pallbearers of human rights protection in the country. Except for a few halcyon moments for the 24 year old institution (for example the Punjab Cremations Case and Gujarat 2002 Suo Moto Investigation), this august body –in popular perception –has failed to become the vibrant watchdog it was set out to be.

A prominently placed news report in the Hindu today informs readers that the Home Ministry has moved the Cabinet (GOI) to amend the recruitment process of the National Human Rights Commission (NHRC). According to the newspaper, a key change being contemplated is that a retired Supreme Court judge could also be considered for the Chairperson’s position, currently reserved for former Chief Justices of the Supreme Court.Similarly an amendment for appointment of members is also being considered. The members could be picked from a pool of retired Chief Justices of High Courts. Currently, a serving or retired SC judge is considered. The NHRC was constituted under the Protection of Human Rights Act in 1993. The Act was last amended in 2006.

“The amendments are being done on the request of the NHRC itself. Complying with international norms, some changes are being made in the Act that will open the floor for recruitment from a wider pool,” said a senior government official.The Commission consists of a chairperson, one member who is or has been a Judge of the Supreme Court, one member who is or has been the Chief Justice of a High Court and two members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights.

Appointments Should be About Autonomy & Commitment to Human Rights Protection First
While on the face of it the move is welcome –since rights groups itself have been recommending that the restrictive categories from where the chairperson and members can currently be chosen is limited, the track record and actual choice of persons will be as material as simply ‘creating a wider pool.’

Currently, the appointments of the chairperson and other members  are appointed by the President obtaining recommendations from a Committee consisting of the prime minister, speaker of the house, home minister, leader of both the houses of parliament and deputy chairperson of the Rajya Sabha.

But what happens when we have a government in power that simply does not recognise political opposition and debate and in fact has not even granted the single largest party the position of leader of the opposition?
The Modi Government has been curiously selective in allowing the largest party in the lower house (Lok Sabha) to have a say in key appointments to such bodies. Today while Gulam Nabi Azad enjoys the position of leader of the opposition in the Rajya Sabha, while Mallikarjun Kharge is considered to be ‘de facto’ leader has not been formally given the position.

This anomaly or gap has been rather cleverly, if crudely twisted by the ruling dispensations when it comes to appointments. For example when it came to the appointment to the Director of the CBI, to suit its ends, the ruling party pushed through an amendment to the ‘Delhi Police Establishments Act’. Now instead of consulting with ‘Leader of the Opposiiton in Lok Sabha’ the appointment process is felicitated by consulting with ‘Leader of the Largest Party in the Lok Sabha.’ Significantly however such an amendment to allow consultation with the political opposition has not been felicitated in for instance, the appointment of the Lok Pal (through an amendment to the act). And it is unlikely that the new amendments to the PHRA (Protection of Human Rights Act, 1993) will include such an amendment that will also take into consideration the opinions of the political opposition.

In any case, the present Modi-led NDA II government had come in for some flak from the Supreme Court earlier this year when the court had asked the body to appoint the NHRC DG within a week.

Last November, the same central government that is today speaking of ‘widening the pool of appointments to the NHRC’ had come in for sharp criticism when it had tried to push through a political appointment.
 
Then again, earlier this year the current chief of NHRC, Justice HL Dattu, was quoted as saying  “There should be amendment in the Protection of Human Rights Act, 1993 so that the commission can take action against officials who ignore its recommendations.”
 
 
Modi Govt Pushes Political Appointments into NHRC
 
Sabrangindia had reported (November 10, 2016) that while opposing the appointment of a senior office bearer of the Bharatiya Janata Party (BJP) as a member of the National Human Rights Commission (NHRC), several judges and human rights activists have roundly condemned the decision – first of its kind – to appoint a career politician to the national human rights body. 

We had pointed out that the decision, last November, to clear a politician to be on its panel is one more step of the ruling dispensation’s sinister intents to erode the autonomy of institutions. The Modi government, had tried once before to bring in a judge of the Supreme Court — Justice Sathasivam who had already accepted an executive post  of Governor of Kerala. That controversial appointment had also been challenged by the People’s Union for Civil Liberties (PUCL). We had also informed readers that this was not the first Time, NDA I too had encroached on NHRC’s Autonomy: before that NDA I, under Advani had brought in a CBI director seen favourable to the regime, in 2004. Then, LK Advani, India’s deputy prime minister and home minister in 2004, overruled the objections of Chief Justice AS Anand and insisted on the appointment, to the NHRC of a just retired Director of CBI.

Also Read
Political Appointment to NHRC Wrong in Principle: Justice Rajinder Sachar

A committee that appoints members to NHRC is chaired by prime minister and includes the home minister, leader of opposition from both the houses, speaker of Lok Sabha and deputy chairman of Rajya Sabha as its members. The committee headed by PM Modi had earlier anonymously cleared appointment of BJP VP Avinash Rai Khanna as a NHRC member despite his insufficient qualification and his participation in active politics. Khanna has had only a short stint (13 months) with Punjab State Human Rights Commission, which he quit on being elected to Rajya Sabha. The Congress had first claimed ignorance of the move.

Justice Rajinder Sachar, former chief justice of Delhi High Court and former member of United Nations Sub-Commission on the Promotion and Protection of Human rights, criticising both  the ruling BJP and the Congress had then told SabrangIndia, “How is that even possible? He himself is a leader of opposition in Rajya Sabha and Khanna is a former member of Rajya Sabha. How can he not be aware of Khanna’s affiliation with BJP? The Government is taking such a step and surprisingly even Congress is not opposing it? Their duplicity must be exposed.”

Further, Sachar called decision to appoint Khanna wrong “in principle” and also said that the People’s Union for Civil Liberties (PUCL) will be taking steps to cancel Khanna’s appointment.
 
Justice Hosbet Suresh also condemned the committee’ decision, calling it, “fundamentally wrong”. “I am unable to understand how the committee cleared appointment of a politician anonymously. This needs to be challenged in the court,” he said.
 
Interestingly, when in opposition, BJP had opposed appointment of former Supreme Court judge Cyriac Joseph to NHRC citing his alleged closeness to “certain political and religious organisations”. However, the objection by the then Leader of Opposition Arun Jailtley was rejected by the panel and the appointment was cleared.

The post Appointments of Chairperson & Members to NHRC Should be About Integrity, Independence & Commitment to Human Rights Protection appeared first on SabrangIndia.