Implementation of international human rights treaties

I. INTRODUCTION

Historically human rights have been seen to hold essentially against the State and society of which one is a member.[1] The implementation and compliance with international human rights treaties and obligations are eventually national issues, and it is the States that are under an obligation under the international human rights treaties to safeguard, uphold, protect, and promote the human rights of individuals within their respective territories. National and domestic mechanisms to protect the human rights of the citizens can take various forms. They primarily consist of the courts, ombudsmen, and the National Human Rights Institutions[2].

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The concept of National Human Rights Institutions is a recent development among the mechanisms for the promotion and protection of human rights[3]. A National Human Rights Institution(hereinafter NHRIs) has been described as “a body, which is established by a government under the Constitution, or by law or decree, the functions of, which are specially defined in terms of the promotion, and protection of human rights.”[4] Though these institutions are especially intended to protect and promote human rights, they do not take over the role of the courts and the judiciary, legislative bodies, government agencies, political parties or NGOs[5]. They mainly monitor the human rights situation, audit laws, make recommendations, train personnel, educate the public, report to international bodies, hold inquiries. NHRIs can be of various forms, namely Ombudsmen, Hybrid Human Rights Ombudsmen, or Human Rights Commissions.[6]

Since the effective protection of human rights necessitates flexible mechanisms that cannot ordinarily be provided within the traditional court system, national human rights institutions, “with their “complimentary mechanisms,” have become the much needed “third force” for the protection and promotion of human rights at the national level.”[7] Further since not all human rights violations are of such degree so as to attract international attention the NHRIs could perform these functions at the national level.[8]

In India, the institutional framework for protection of human rights was enhanced when the Parliament enacted the Protection of Human Rights Act, 1993. It was under the mandate of this Act, that the National Human Rights Commission (hereinafter NHRC) was set up in India on 12 October 1993[9]. This Commission is among one of the first NHRIs established in the South Asian countries and also few among the NHRIs, which were established in the early 1990s.[10]

This paper is an attempt to evaluate and assess the role of the NHRCs in protecting and promoting human rights of citizens. The paper begins with a brief history of the events which led to the formation of the National Human Rights Commission. The Paris Principles will be discussed and highlighted in this regard. The second part of the paper will deal with workings of NHRC and how in the recent years, the NHRC has gradually extended its jurisdiction, and have dealt with a wide variety of cases ranging from suggestions for police reforms to rights of disabled, health, rights of mentally challenged, food security, education, rights of minorities, Scheduled Castes and Scheduled Tribes and internally displaced persons, etc.[11] The next part of the paper will deal with two specific issues – the disappearance cases in Punjab and the right to food issue in Kalahandi, which has been successfully tackled by the NHRC. Finally the researcher will probe into the question as to how to further strengthen and increase the effectiveness of the NHRC.

II. RESEACRH QUESTIONS

1. What were the background events which led to the creation of the NHRC in India?
2. How the has the jurisdiction of NHRC been expanded over the recent years?
3. How has the NHRC dealt with the cases of ‘disappearance in Punjab’ and the ‘Right to Food’ case in Kalahandi?

III. CREATION OF THE NATIONAL HUMAN HIGHTS COMMISSION IN INDIA

For several years, the United Nations (hereinafter UN) has been vigorously trying to promote independent and effective human rights institutions, after recognizing that this may be the best way to ensure respect for human rights within the domestic sphere.[12] In the 1990s the UN strongly advocated the establishment of NHRIs, and encouraged the strengthening of the existing NHRIs. In 1991, the first major international meeting on this issue, took place in the Workshop on National Human Rights Institutions held in Paris[13], where the Principles relating to the Status of National Institutions (or the Paris Principles)[14] were adopted. The Paris Principles, subsequently endorsed by the UN Commission on Human Rights[15] and the UN General Assembly,[16] sets out the minimum criteria for the effective functioning of the NHRIs.[17] It calls for the establishment of independent commissions to protect human rights, and it has become the benchmark against which national human rights institutions are measured. [18]

The Paris Principles prescribe seven important principles which aim at creating independent and credible NHRIs. According to the Paris Principles, a NHRI must be: independent of the Government, with such independence guaranteed either by statutory law or constitutional provisions; be pluralistic in their roles and membership; have a broad mandate, which could collectively protect and monitor the implementation of human rights through various means, including recommendations and proposals concerning existing and proposed laws and policies; have adequate powers of investigation, capacity to hear complaints and transmit them to the competent authorities; be characterized by regular and effective functioning; be adequately funded and not subject to financial control, which might affect their independence; and be easily accessible to the general public.[19]

Discussions surrounding the establishment of a NHRI in India dates back to 1991 India. Throughout the late 1980’s India faced politically turbulent times, for the nation, especially Kashmir, Punjab and Assam was engulfed in a powerful wave of foreign-funded terrorist violence, which resulted in a severe loss of human life and property.[20] In order to combat these insurgency and secessionist movements which were gaining ground, the Indian Government deployed the army, the paramilitary, and the Border Security Forces, and enacted the draconian Terrorist and Disruptive Activities (Prevention) Act, 1987, that vested vast powers in the police.[21] The giving of sweeping powers to the police resulted in the rise of state-sponsored terrorism. The police flagrantly caused grave violations of human rights, indiscriminately, victimizing innocent persons.[22] This resulted in international outcry and ‘scathing’ reports were submitted by the Amnesty International and Asia Watch manifesting that abuses including torture, rape, custodial deaths, and disappearances – committed by state security agents – were actual and endemic[23]. The Government of India was heavily criticized for failing to punish the guilty and establishing a credible mechanism to monitor the situation and punish the guilty. [24]

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Apprehending indictment from the international community and a resultant fall-out with international financial institutions such as the World Bank, the Congress government, led by Mr. P.V. Narasimha Rao, and initiated discussions on establishing a National Human Rights Commission[25]. On 16 March 1992, the then Home Minister, Mr. S. B. Chaban stated that the goal of the proposed human rights commission was to “counter the false and politically motivated propaganda by foreign and Indian civil rights agencies”[26]. Further, Mr. V.N. Gadgil, the then official spokesperson of Congress (I) added, that the findings of the NHRC “will act as correctives to the biased and one-sided reports of the NGOs. It will also be an effective answer to politically motivated international criticism.”[27] Hence it is evident that prior to the formation of the NHRC the government had sought to utilize it to deter the criticisms by international community, instead of trying to create a mechanism for better protection of human rights. Many commentators labeled this initiative as an endeavor to counter the criticisms over India’s refusal to give access to international human rights groups for conducting research missions in various parts of India.[28].

It is in the midst of these criticisms that the President of India promulgated an Ordinance on September 28, 1993 providing for the creation of a National Human Rights Commission, human rights commissions in Indian states, and human rights courts. The NHRC came into effect on 12 October 1993 by virtue of the Protection of Human Rights Act, 1993. [29]

IV. EXPANSION OF THE JURISDICTION OF THE NATIONAL COMMISSION ON HUMAN RIGHTS

The National Human Rights Commission of India was constituted “for the better promotion of human rights and for matters connected therewith or thereto.”[30] It is a statutory body, having an independent and autonomous character, and is vested with powers, duties, and functions. Indeed over the past 17 years the Commission has endeavored to give a positive meaning and a content to the objectives set out in the Protection of Human Rights Act. It has moved vigorously and effectively to use the opportunities provided to it by the Act to promote and protect human rights in the country.[31]

The Protection of Human Rights Act is divided into 8 chapters consisting of 43 Sections. Special powers are conferred to the NHRC under Section 10(2), according to which the Commission shall regulate its own procedure.[32]According to Section 3 the Commission shall consist of five members, three of whom should be from the judiciary and two from amongst persons having knowledge of, or practical experience in, matters concerning human rights. Selection of chairperson and members of the Commission is made on the recommendations of a committee consisting of the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the People and Deputy Chairman and leader of opposition in the Council of States.

The Commission has various powers like inquiring suo motu against any public servant[33], intervening in any court proceedings involving allegations of a human rights violation provided the court approves of the intervention[34], monitoring prison or custodial practice and visiting any jail or any other similar institution[35] and making recommendations to State governments based on such visits. The Commission has the power to review the safeguards provided under the Constitution or any law relating to the protection of human rights[36], and review cases pertaining to terrorism, as well as to recommend appropriate remedial measures[37]. Section 12(f) empowers the commission to make recommendations for their effective implementation of international human rights treaties. While Section 12(g) provides for the promotion of research in the human rights field, Section 12(h) empowers the Commission to spread human rights literacy amongst various sections of the society, and to promote awareness through publications, the media, seminars and other available means; It can also encourage efforts of NGOs working in the field of human rights[38], and can perform any other functions which are deemed necessary for the promotion of human rights.

The role of the Commission is complementary to that of judiciary. On various occasions the Supreme Court has referred important matters to the Commission, while on the other hand the Commission has also taken specific cases of violation of human rights to the Courts. This complementary role of the National Human Rights Commission and the judiciary in India is an illustration of ‘best practice”.[39]

Section 2 (d) of the Act defines “human rights” as “rights relating to life, equality, and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”. Thus it is evident that the law requires the NHRC to give more importance to civil and political than on social and economic rights.[40] However, the Commission has not limited its jurisdiction to only civil and political rights, but has expanded its jurisdiction and has dealt with wide variety of cases. Initially the efficacy of NHRC and the force of its recommendations within the limitations of its jurisdiction were doubted. It was thought that the Commission could make recommendations only with respect to matters within its jurisdictions. However, after 17 years of the functioning of NHRC belied these apprehensions[41]. The Commission has acquired high visibility and it has been identified as the major institution preserving the human rights culture in the country. It has constantly sought to interpret its powers and functions under the Act as expansively as possible keeping in mind its over-arching responsibility to protect the human rights of the people.[42]

Since its inception, the Commission had started receiving numerous complaints with respect to violation of human rights by the police. The commission has intervened in cases on police reforms pending before the Supreme Court. It has dealt with cases regarding police administration and has set up a Police Complaint Authority in the office of the Director General of Police in each state in order to have a general oversight of the conduct of the police officials.[43] It has also given serious attention to improving the prevailing conditions in the jails, and about the conditions of the under trials, and mentally ill persons in prisons. With respect to the issue of custodial violence and urged people to report cases of custodial deaths, rapes etc, including those involved in the army and para-military forces should be reported to the Commission immediately.[44]

The Commission is of the view that only realizing that political freedom would not be purposeful for the teaming millions of people who suffer from poverty and social evils unless economic, social and cultural rights are assured to them, the Commission, during the past few years has made serious efforts towards realization of economic social and cultural rights.[45]

Since 1994, the Commission has been advocating for the right to free and compulsory education to all children until they complete the age of 14 years. The 86th Constitutional Amendment Act, which was passed in 2002, mandates that ‘the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.’ It has also been actively involved in the drafting of the Convention on the Rights of Persons with Disabilities and soon after its adoption by the UN General Assembly, the Commission commended it to the Government of India for ratification, which has since been done. According to Article 33 of that Convention the Commission has initiated follow up action, and held regional workshops to spread awareness to various stakeholders about the provisions of the Convention. [46] Further, the Commission has also dealt with the right to Health and the need for Quality assurance in Mental Hospitals and protection of the rights of mentally ill. The Commission recommended compulsory rural attachment for the doctors and having nurse practitioners to resolve the issue of manpower.[47]

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On the direction of the Supreme Court, the Commission has been also supervising the enforcement of administration of laws against bonded laborers in various States. This involvement of the commission at the instance of the Supreme Court is an illustration of strategic alliance between the two institutions in securing human rights of the vulnerable.[48] Further, it has also taken care of the rights of those who are affected adversely by natural calamities. For example in the aftermath of the Orissa Super-cyclone, in 1999, the Commission had suo-motu taken cognizance of the situation, and made recommendations to the State Governments to ensure that the human rights of the marginalized groups -widows, orphans, tribals, destitutes are protected[49]. Commission took suo-motu cognizance of the communal violence which broke out broke out in the State of Gujarat on February 27, 2002 and has been seized of the issue since then. In 2003, the Commission filed a Special Leave Petition in the Supreme Court to enforce “the right of fair trial” for all and a petition for transfer of nine serious cases for trial outside the State of Gujarat. [50]The intervention of the Commission has resulted in the transfer of some serious cases to outside Gujarat, reopening and retrial in significant cases and conviction of the guilty persons in ‘Best Bakery’ and Bilkis Bano cases[51].

Based on the Commission’s efforts and advice, India has signed the Torture Convention, and has also signed and ratified two Optional Protocols to the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. It has been advocating for the ratification of the 1951 UN Convention relating to the Status of Refugees and the Torture Convention. Further it has also been advocating for a National Law on Refugees.[52] The Commission has also constituted a Working Group and an Advisory Committee including representatives of various departments of the Government, NGOs, and eminent lawyers to prepare a National Action Plan for Human Rights in 2006. The Working Group is focusing on areas like education; criminal justice system – including police, prosecution court etc.; rights of vulnerable groups like women, children, bonded labourers, dalits, tribals, minorities, disabled and the elderly. Issues like right to food, water, health and environment, and right to social security globalization and human rights are also being dealt with by the Commission.[53]

There has hardly been any aspect of economic, social and cultural rights which has not been dealt with by the Commission – be it right to food, right to clean drinking water, right to shelter, right to health, right against discrimination, right to clean drinking water, right to shelter, right to against discrimination, right to health, right to a clean environment. Again they have dealt with rights of women, children, bonded labour, displaced persons, denotified and nomadic tribes, members of minorities group and those challenged with disability.

V. DISAPPEARANCE CASES IN PUNJAB AND THE RIGHT TO FOOD CASE IN KALAHANDI:

Since its inception in 1993, the Commission has dealt with various cases, some of which has been referred to by the Supreme Court, while some others, which the Commission has taken up suo motu. It has acted effectively to use the opportunities provided to it by the Protection of Human Rights Act to promote and protect human rights in the country. Among the important cases which were dealt by the Commission, the disappearance cases in Punjab and the right to food case in Kalahandi, Orissa are discussed below.

A. PUNJAB MASS CREMATION AND THE DISAPPEARANCE CASES IN PUNJAB:

During the 1980s, Punjab experienced a long insurgency marked by routine battles between insurgents and state forces[54]. From 1984 to 1994, thousands of persons in Punjab “disappeared” and were believed illegally ‘cremated’ as part of a brutal police crackdown to suppress insurgency outbreaks in the state.[55] Police counter-insurgency efforts involved cruelty, torture, forced disappearances, and a system of cash rewards for the summary execution of alleged Sikh militants. There were numerous instances of police abuses and there was no absolutely effort to account for these of forced disappearances and summary killings. The disappearance of young men suspected of being either being terrorists, or having links with terrorists, became persistent and incidents like enforced disappearances and mass cremations in Punjab continued to take place, resulting in the death of many innocent and ordinary civilians.[56] It is to be noted that international law requires that States investigate all cases of forced disappearances in which State liability is at issue, and obliges the state to conduct thorough investigations of all allegations of forced disappearances and to provide a remedy to the victims. Hence, India was obligated under international law to investigate all cases of alleged disappearances across Punjab.[57]

In 1994, Jaswant S. Khalra, Chairman of the Human Rights Wing of the Akali Dal, and Jaspal S. Dhillon, then General Secretary of the Wing, responding to the reports of mass disappearances took initiatives to investigate the alleged illegal cremations conducted by the Punjab Police between 1984 and 1994 in three crematoria in Amritsar district.[58] After publicizing their findings, Khalra, filed a writ petition in the Punjab and Haryana High Court by Khalra to investigate these mass cremations. However, since the High Court dismissed his petition on grounds of vagueness, and absence of sufficient proof, Khalra moved to the Supreme Court[59].

Two writ petitions[60] were filed before the Supreme Court, which prayed that the State should be held liable for the flagrant violation of human rights and the mass secret cremations. The Supreme Court after examining a report submitted by the Central Bureau of Investigation (CBI) pointed out that the report stated that almost 585 dead bodies were fully identified, 274 were partially identified, and 1238 were unidentified.[61] On 12 December 1996 the Court requested the NHRC to examine the matter in accordance with law and determine all issues relating to the case.[62] While the case was pending before the Supreme Court, the police abducted Khalra. The Supreme Court ordered the CBI to investigate the abduction and under Article 32 of the Constitution, gave the NHRC an open order to investigate disappearances the NHRC to investigate allegations of mass illegal cremations in Punjab on 12th December 1996[63].

Though the case is still pending before the Commission for final consideration, the Commission has recommended compensation of Rs. Two lakh fifty thousand to each of the next of kin of 195 deceased identified to be in the custody of police and Rs. One lakh seventy-five thousand to each of next of kin of 1103 identified persons whose dead bodies were cremated by the police, amounting to Rs. 24,27,25,000.[64] Compensation is granted based on the jurisprudence developed by Indian courts relating to legal standards for remedial, reparatory, punitive, and exemplary damages for human rights violation.[65] It further acknowledges that monetary or pecuniary compensation is a proper, effective and sometimes maybe the only remedy for redressing the infringement the basic human rights of a citizen by public servants and the State. [66] According to the Commission, the claim of citizens who are affected is based on the principle of strict liability, where the citizen must invariably receive compensation, and the defense of sovereign immunity is not available[67].

B. KALAHANDI AND RIGHT TO FOOD CASE IN ORISSA:

The NHRC has since long maintained that right to food is inherent to living a life with dignity. It has also expressed that right to food includes nutrition at an appropriate level. [68] Since December 1996, the Commission has been dealing with complaints alleging starvation deaths in Koraput, Bolangir and Kalahandi districts of Orissa. The case started in 1996 when the when the Commission took cognizance of a letter from Mr., Chaturanan Mishra, the then Union Minister of Agriculture, with respect to deaths caused by starvation after the drought in the Bolangir district of Orissa.[69] On December 23rd, 1996, under Article 32 a writ petition was filed by the Indian Council of Legal Aid and Advice and others, before the Supreme Court. In the petition deaths by starvation was alleged and that it continued to occur in certain districts of Orissa. [70]On 26th July 1997, it was pointed out by the Supreme Court, that since the matter had been seized with the NHRC and the NHRC was likely to deliver a direction in this case, the petitioner should approach the Commission.[71]

The Commission acted immediately and prepared interim measures for a two-year period. Further it requested the State Government of Orissa to constitute a Committee for inspection of all aspects of the land reform question in the affected districts.[72] For monitoring the progress of implementation of its directions, a Special Rapporteur was also appointed. The Commission came to the conclusion that starvation deaths reported from some pockets of the country were most certainly as a result of the consequence of mis-governance resulting from acts of omission or commission on the part of public servants. [73] It was firmly stated that ‘to be free from hunger’ is not only a fundamental right of the citizens of India, but is also a basic human right[74]. Starvation, hence, results in a gross denial and violation of this right. In order to ensure quality execution of Right to Food, the Commission has recommended setting up of Committees which would monitor the access and availability of food grains to the most vulnerable sections of the society.[75]

After organizing a meeting with the leading experts on the issue of right to food, in January 2004, Commission approved the constitution of a Core Group on Right to Food. [76] This Core Group will have the power to advice on issues referred to it and also suggest appropriate measures, which can be undertaken by the Commission.[77] It has also issued the guidelines on the constitution and functioning of such committees to all the State governments and the Central Ministries.[78] If these committees are implemented in a proper manner, they can act as Watch Committees, paving the way for a ‘hunger free India’. Further the Commission has also drafted a National Action Plan on Right to Food, and is also seriously monitoring malnutrition in Maharashtra.[79]

The manner in which the Commission has dealt with the above two cases, has firmly established that in India, both the courts and the Commission are beginning to treat the economic, social and cultural rights are being treated at par with civil and political rights. India is the few countries in the world to have accorded justiciability of economic, social, and cultural rights.[80]

VI. CONCLUSION

Though every nation has its own priorities and goals to achieve, there are certain minimum standards which they are expected to fulfill, in order to meet their international human rights obligations and the larger world order. The Paris Principles, adopted by the General Assembly is the edifice on which national human rights institutions have been set up. A free and fully autonomous national institution is the best guarantor for the protection of human rights within the domestic sphere and the National Human Rights Commission of India is fully conscious of the same. It is evident from the preceding sections that with the advent of National Human Rights Commission, human rights protection has taken a leap in India. Inspite doubts about the Commission’s independent functioning, it has surprised both the domestic and international community with its decisive and credible actions. The Commission, ever since its inception, has always tried to expand the reach of its jurisdiction, and has been seriously engaged in the protection of economic and social rights. It has dealt with number of issues like right to food, right to clean drinking water, right to shelter, right to health, right against discrimination etc.

However, there are areas where there are avenues for improvisation. The Commission must be able to provide concrete remedies to the hapless victims, and must be vested with explicit powers of prosecuting delinquent public servants in case it finds sufficient evidence of violation human rights. Further it must also be empowered to refer any person for prosecution who for no reason obstructs the functioning of the Commission. This will provide teeth to the system.[81]

It is only then that the Commission will be able to investigate cases in a proper manner. Given the fact that the task of protecting and preserving the human rights in the India is task of huge magnitude, the Commission needs to prioritize its work if it seeks to be an effective institution. Hence the Commission needs to identify concrete goals, methodologies which could help them in attaining and accomplishing their goals. Also there is a need to set time-frames within which the goals are to be met. Further, since the implementation of the recommendations of the Commissions by the government is vital to the Commission’s success, there should be a “statutory ensurement” that the NHRC’s recommendations will be faithfully considered by the government[82]. Hence the Commission should be vested with enforceable powers to ensure that its decisions and recommendations are implemented. It is only then that the Commission can truly become and remain an effective agent for promoting and protecting human rights of teeming millions.

V. BIBLIOGRAPHY

PRIMARY SOURCES

• Protection of Human Rights Act, 1993
• Principles Relating to the Status of National Institutions (or the Paris Principles)
• Punjab Mass Cremation Order, 19 April 2005
• National Human Rights Commission of India, Report from Forum Members presented by Dr. Justice Shivaraj V. Patil, 1st August 2006
• Amnesty International Report, India: Torture, Rape, and Deaths in Custody, AI Index: ASA 20/006/1992, 1992.

SECONDARY SOURCES

BOOKS AND JOURNALS

• Abul Hasnat Monjurul Kabir, Establishing National Human Rights Commissions In South Asia: A Critical Analysis Of The Processes And The Prospects, Asia-Pacific Journal On Human Rights And The Law, 2001, Volume 2, Number 1, 1-53.
• Anne Smith, The Unique Position of National Human Rights Institutions: A Mixed Blessing?, Human Rights Quarterly 28 (2006) 904-946.
• B.P. Singh Sehgal, Human Rights in India: Problems and Perspectives, New Delhi, 1st ed., 1999.
• C. Raj Kumar, National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights, 19 Am. U. Int’l L. Rev. 259, 2003
• C.J. Nirmal, Human Rights in India: Historical, Social, and Political Perspectives, Oxford University Press, New Delhi, 3rd ed., 2004.
• Dr. Ashwini and Kataria, Law Relating to the Protection of Human Rights, Orient Publishing Company, 2nd ed., New Delhi, 2005.
• Jaskaran Kaur, A Judicial Blackout: Judicial Impunity for Disappearances in Punjab, India, 15 Harv. Hum. Rts. J. 269.
• Justice J.S. Verma, The New Universe of Human Rights, Universal Publishing Co. Pvt. Ltd, Delhi, 2004.
• M. Kumar Sinha, Implementation of Basic Human Rights, Manak Publications, New Delhi, 1999.
• Mohd. Shabbir, Quest for Human Rights, Rawat Publications, New Delhi, 1st ed., 2005.
• Performance & Legitimacy: National Human Rights Institutions, SSRN BOOK
• Sankar Sen, Human Rights and Law and Enforcement, Concept Publishing Co., New Delhi, 1st ed., 2002.
• Vijayashri Sripati, India’s National Human Rights Commission: A Shackled Commission?, 18 B.U. Int’l L.J. 1, 2000.

INTERNET SOURCES:

• Andrew Byrnes, Andrea Durbach and Catherine Renshaw, Joining the club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the advancement of human rights protection in the region, http://ssrn.com/abstract=1397466.
• Dr Subhash C Jain, The Commonwealth and Human Rights: An Indian Perspective, Commonwealth Law Bulletin, 1999 available at www.rcs.ca/colloquium/Jain.doc (Last visited on March 31, 2010)
• Excerpts from NHRC India Paper for Universal Periodic Review, available at, http:/