Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 3 August 2005
Review: /84/05
A Bad Case:
NHRC of India clogged under operational inefficiency

1. Introduction.
2. Statutory limitations
a. Lack of plurality
b. Lack of jurisdiction over the armed forces
c. Prison visit
d. Procedures for appointment
3. Operation inefficiency
a. Non-registration of complaints
b. Denial of the right to information: No response from the NHRC.
c. The Kangaroo Court: Violation of cardinal principle of jurisprudence.
d. Dismissal of complaints on frivolous grounds
e. Exposing the complainants
f. Flawed investigation process
g. Informing the complainant through the press! The NHRC style.
h. Lack of follow up for prosecution.
4. Conclusions and recommendations

Sample acknowledgements issued by NHRC

1. Introduction

All the National Human Rights Institutions (NHRIs) have statutory limitations. Since the NHRIs are not expected to supplement the judiciary and do not have enforcement powers, the inability to implement their recommendations often raises questions about their credibility.

The National Human Rights Commission of India is no exception. It has its statutory limitations, among others, inability to investigate abuses by the armed forces and the need to give prior intimation to the authorities to visit any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates.

However, it is not the statutory limitations which has made India’s NHRC more ineffective but its operational inefficiencies such as non-registration of complaints, denial of the right to information on the complaints, violation of the cardinal principle of administration of justice by not providing response of the State to the complainant in the course of considering the complaints, closure of cases on frivolous grounds, exposing the complainants, flawed investigation processes and lack of follow up mechanisms for prosecution.

Asian Centre for Human Rights (ACHR) can unequivocally assert that its observations are not based on assumptions or hearsay but consistent and systematic engagement with the NHRC. Undoubtedly, NHRC has played a critical role and continues to play a critical role for the protection and promotion of human rights in India. However, for those who engage with the NHRC, it is only a database centre for human rights violations. The NHRC suffers from serious credibility crisis.

2. Statutory limitations

Among the statutory limitations, four key issues of concern are the lack of plurality, keeping the armed forces out of the purview of the NHRC and the requirement of prior permission to visit prisons.

a. Lack of plurality

The composition of National Human Rights Commission does not reflect the plurality as required under the Paris Principles on National Human Rights Institutions. Although Chairman of the National Commission for Scheduled Tribes, National Commission for Scheduled Castes, National Commission for Women and National Commission for Minorities are included as statutory members, these members are busy with their own commissions. Effectively, there is no representation from the Scheduled Castes, Scheduled Tribes, Women and Minorities. So much for plurality, NHRC’s website on the composition of the Commission does not even include the National Commission for Scheduled Castes and National Commission for Scheduled Tribes!

b. Lack of jurisdiction over the armed forces

According to 2003-04 Annual Report of Ministry of Home Affairs, India faces intensive internal armed conflicts in Assam, Arunachal Pradesh, Jammu and Kashmir, Meghalaya, Manipur, Mizoram, Nagaland and Tripura. In addition, Indian states of Andhra Pradesh, Bihar, Chattisgarh, Orissa, West Bengal, Madhya Pradesh, Maharashtra, and parts of Uttar Pradesh are afflicted by left wing Naxalites movement against inequity and social injustices. In most of these situations, armed forces have been deployed.

Yet, under Section 19 of the Human Rights Protection Act, NHRC does not have jurisdiction over the armed forces of the government of India who are responsible for gross and widespread human rights violations in armed conflict situations. It has a detrimental effect on NHRC's effectiveness [1] , particularly in view of the human rights violations by the armed forces.

c. Prison visit

The need to provide prior intimation to the authorities for visiting any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates defeats the purpose of prison reforms.

d. Procedures for appointment

The appointment of Mr P C Sharma, former Director of Central Bureau of Investigation has been challenged before the Supreme Court. As the Supreme Court has observed, there is nothing wrong with the procedures for appointment of Mr Sharma as a member of the Commission. [2] The critical issue is the conflict of interest when a police officer is appointed as a member of the NHRC when most allegations of human rights violations are against the police. The issue of conflict of interest is not restricted to Mr Sharma but extends to the staffing of the NHRC who serve on deputation from various Ministries.

Even though the then leader of Opposition, Mrs Sonia Gandhi, was part of the panel but she reportedly did not respond to the intimation sent to her on the appointment. [3] The Congress party while in opposition described the appointment of Mr Sharma as "highly regrettable".  The party did not favour the appointment because Mr. Sharma, as the CBI chief, had acquired the "odious reputation of being a pliable police officer," the AICC chief spokesperson, S. Jaipal Reddy said. He had "connived in sabotaging" the Ayodhya case, he alleged. [4] Yet, the UPA government led by the Congress in its affidavit before the Supreme Court supported Mr Sharma’s appointment.

In July 2005, the People’s Union of Civil Liberties (PUCL), which had challenged in the Supreme Court the appointment of Mr Sharma as National Human Rights Commission (NHRC) member, has sought the review of court’s order approving his selection. [5] The question is whether the Supreme Court could regulate conflict of interest when those who are supposed to nominate members of the NHRC do not do their job.

3. Operational inefficiency

More than the statutory problems, it is the operational inefficiency of the NHRC that has been hampering its effectiveness. The operational inefficiency ranges from simply non-recognition of complaints to violation of cardinal principle of jurisprudence.

a. Non-registration of complaints

In its 2003-2004 Annual Report, NHRC states that it has taken 3,75,758 cases in its first 10 years. One wonders as to how many of the complaints were simply not registered. These complaints also do not violate Article 36 (2) of the Human Rights Protection Act which stipulates that the Commission “shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.”

As NHRC does not register the complaints, Asian Centre for Human Rights has been delivering the complaints by hand on which NHRC puts the “receipt stamp”.

Presuming that NHRC is able to examine the complaints in six months irrespective of how serious the complaint is, ACHR did not receive any acknowledgement on the following complaints, which can be presumed rejected:

21 March 2003: Complaint against alleged torture and custodial death of one Pitambar Pradhan alias Bhalu on 1 February 2003 at Mahanga police station of Orissa;

3 April 2003: Complaint against alleged torture and extrajudicial execution of Mr Harilal Yadav (52), a Food Corporation of India employee at the Rani ki Sarai police station, Lucknow, Uttar Pradesh on 31 March 2003;

26 March 2003: Complaint against alleged torture and custodial death of Himangtosh Baraik, 24 years on 10 February 2003 at Alipurduar, Siliguri under West Bengal;

22 March 2003: Complaint against custodial death of Mr Dipak Lama, an under trial at the Alipurduar subsidiary correctional home under Siliguri district of West Bengal on 3 February 2003;

3 April 2003: Complaint against alleged torture and custodial death of a 23-year-old youth, Ramesh in Doddaballapur town police station in Bangalore Rural District, Karnataka in the afternoon of 10 January 2003;

3 April 2003: Complaint against custodial death of Mallepalli Ramakrishna (30) of Yerragudipalle in Pulivendula mandal, Cuddapah of Andhra Pradesh;

24 April 2003: Complaint against alleged torture and custodial death of lorry driver, Mailapalli Satya Srinivasa Rao, 33 in Kotabommali police station in the Srikakulam district of Andhra Pradesh on 1 March 2003;

17 June 2003: Complaint against alleged harassment and unprovoked firing by the Special Services Bureau in Siliguri, West Bengal on 8 June 2003;

17 June 2003: Complaint against alleged torture and subsequent death of L Bhoominaathan alias Kuttiyappan (35 years) from his house at Manimutheeswaram village under the Thatchanallur police limits under Tirunelveli on the night of 15 June 2003;

17 June 2003: Complaint against alleged extrajudicial execution of Mr Lalkholun Hangsing of Wakotphai in Senapati district under Kangpokpi police station by the 25th Assam Rifles personnel on 19 May 2003;

20 June 2003: Complaint alleged torture and custodial death of one Ganesan (50) of Pudur village under Thanjavur of Tamilnadu on 18 June 2003l;

23 June 2003: Complaint against alleged torture and custodial death of one Mr. Qayyum, a suspect in the murder of one Srinivas, by Andhra Pradesh Police of Sadasivapeta police station, under Sangareddy of Medak district, Andhra Pradesh on 19 June 2003;

27 June 2003: Complaint against alleged torture of two minor Dalit boys - Gobinda Mallick (17) and Ashok Mallick (16) in Nuagaon village in Jagatsinghpur district of Orissa;

4 July 2003: Complaint against custodial death of Gurupado Gope who succumed to his injuries at Dhanbad’s central hospital, Jharkhand on 2 July 2003 after battling for life since June 26, 2003;

14 July 2003: Complaint for full implementation of the of the Supreme Court judgement in the case of NHRC Vs State of Arunachal Pradesh (CPW 720 of 1995) of 9 January 1996;

16 July 2003: Complaint against the inhumane torture and custodial death of Mr Suresh Kumar in the custody of Lambi Police under Batinda district of Punjab on 14 July 2003;

18 August 2003: Complaint against custodial death of a Dalit, Vasant Ravji Vankar who was found dead in the Sabarmati police station, Ahmedabad, Gujarat on 14 August 2003;

27 October 2003: Complaint against the custodial death of Mr Deben Sardar, 46, of Sardarpara, Arabpur, Nadia District, West Bengal in the custody of the Hogalberia Police Station on 12 October 2003;

14 November 2003: Complaint against alleged brutal beating of juvenile Samran Desai (16) at Mahim police station in Mumbai, Maharashtra on 10 November 2003;

14 November 2003: Complaint against alleged tortured to death of one Nitai Sarkar (35) Rakshmari area under Dhekiajuli police station of Sonitpur district of Assam on the evening of 7 November 2003;

28 November 2003: Complaint against alleged custodial death on one Sheikh Bana, 40, in Digras police station under Yavatmal in Maharashtra on 11 November 2003;

8 December 2003: Complaint against alleged torture and custodial death of Beer Singh, a Dalit and a resident of Dehera village, under the jurisdiction of Dhaulana police station of Ghaziabad on 6 December 2003;

12 June 2004: Complaint against alleged torture of Bonison Gustin Fernandes (16) of Chendia in Karwar in North Kannada District of Karnanataka by Chendia Police on 28 May 2004;

15 June 2004: Complaint against illegal detention and custodial death of Mr Rangapppa  in the custody of Aijoor Police station in Ramanagaram taluk in Bangalore Rural district in the morning on 2 June 2004;

5 July 2004: Complaint against alleged beating and custodial death of Mr Yugal Kishore Chauhan (50) in the custodial of Loyabad police under Dhanbad district of Jharkhand;

5 July 2004: Complaint for impleadment with Chief Judicial Magistrate, Amritsar against tattooing – Yeh Chor Hai – of one Mr Rockey alias Fakkar inside Central Security Jail, Amritsar in Punjab;

14 July 2004: Complaint against alleged torture and custodial death of Mr Rajiv Sharma (35), resident of Sadar Bazaar police station area in Meerut city of Uttar Pradesh at Sadar Police Station, Meerut city on 6 July 2004;

4 October 2004: Complaint against alleged tortured to death of a pregnant Dalit woman – Smt Bhanumati, W/o Shri Rameshwar Jatav of Simra village in Pilibhit district of Uttar Pradesh on the night of 3 August 2004 by policemen;

4 October 2004: Compliant against alleged denial of medical treatment for delivery to a Dalit woman – Ramrati (20), resident of Karanpur village in Mohanlalganj on the outskirts of Lucknow by the doctors at Community Heath Centre, Mohanlalganj, Lucknow on 30 July 2004;

4 October 2004: Complaint against alleged rape of 30-year-old woman by a Railway Protection Force constable named kapil Deorai inside a train compartment at Hasnabad railway station in North 24-Parganas district of West Bengal on the night of 17 August 2004.

5 October 2004: Complaint against the alleged extrajudicial execution of Jamkholien Changloi alias Yangmilien (28), s/o Helkholen Chongloi of Saikul Purum Likli by Manipur Police Commandoes at Khonhsai Veng under Lamphel Police Station in Imphal West district around 2.30 pm on 31 August 2004.

6 October 2004: Complaint against police firing at the demonstrators, injuring 20 people at Alamgiri Bazar in Srinagar on 8 August 2004.

8 October 2004: Complaint against alleged custodial death of a Dalit named Banau Satnami in the custody of Piparia police station in Raipur district of Chhattisgarh on 6 October 2004 evening.

8 October 2004: Complaint against alleged custodial death of a 21-year-old youth, Senthil in Shastri Nagar police station lock-up in Chennai, Tamil Nadu on the intervening night of 2 and 3 October 2004

30 October 2004: Complaint against alleged gang rape of a 20-year-old girl by seven persons including two Army jawans and three policemen at Sahara Guest House at Zero Bridge, Rajbagh in Srinagar on the night of 27 October 2004.

1 November 2004: Complaint against alleged abduction and rape of a 15-year-old girl of Kolkata by a CRPF jawan Karunakar Jena, posted at Nayapalli in Bhubaneshwar city of Orissa.

1 November 2004: Complaint against alleged custodial death of Mr. Gangaraju Jawahara Babu (36), son of Abraham, in Sattenapalli police station lock-up in Guntur of Andhra Pradesh on the morning of 29 October 2004.

6 December 2004: Complaint against alleged beating of a Dalit woman, Ramkali Bai, by five upper caste men for drawing water from a handpump reserved for them in a village in vidisha district of Madhya Pradesh on the morning of 1 November 2004.

23 December 2004: Complaint against alleged custodial death of Gangaaju Gangaiah, 55, in the lock up of the Srikalahasti police station in Chittoor district of Andhra Pradesh on the night of 21 December 2004.

If NHRC wishes to take action on these complaints, Asian Centre for Human Rights would be happy to provide copies where the stamp of the NHRC has been given to prove that these complaints were received but never acted upon.

b. Denial of the right to information: No response from the NHRC

“The delays (in making its annual reports public) have amounted to the denial of right to information. The delay in tabling the annual report before Parliament has resulted in a corresponding delay in releasing its contents to the public. In the process, both the elected representatives and the public have, in effect, been denied timely and comprehensive information on the work and concerns of the Commission”- lamented the National Human Rights Commission of India in its Annual Report 2002-2003

One wished NHRC followed what it rightly preaches to the government of India. Once NHRC registers a complaint, the State authorities submit the reply. NHRC has no standard practice to provide such response from the State to the complainant.

In the case of shooting on a teenaged youth, Naorem Naobi (15/14/2003-2004) in Manipur by the police, NHRC received the reply from the State government of Manipur on 6 September 2003. The NHRC sat over the reply from the State government of Manipur for about two years and then issued notice to the Asian Centre for Human Rights on 18 June 2005 directing it to reply by 23 July 2005. As ACHR is still inquiring from the victim, NHRC will most probably dismiss the complaint for non-receipt of comments!

The NHRC does not practice right to information. On 16 December 2002, the Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (CCRCAP) filed a complained with the National Human Rights Commission of India against the non-implementation and violation of the Supreme Court judgement of 9 January 1996 in the case of NHRC Vs State of Arunachal Pradesh & Anr (720/1995). After one and half year, on 27 May 2004, the National Human Rights Commission in its letter (D.O NO.5/1/2001 – PRP&P) forwarded the excerpts from the Ministry of Home Affairs and requested the CCRCAP to comment on those excerpts.

On 29 July 2004, the CCRCAP requested the NHRC to give the “permission to inspect the complete file” as the two paragraph excerpts from the response from the Ministry of Home Affairs is insufficient to submit comments. In a telephonic call, one secretary to the Deputy Secretary (Research) informed that NHRC couldn’t give permission to inspect the file. There has not been any written communication from the NHRC.

The inability of the complainants to study full replies of the government authorities has negative effects on the determination process of the NHRC. It simply favours the State authorities.

In any case, it is only those complainants and NGOs which are based in Delhi and are aware of the basic principles on fair trial that can request to inspect the files, if granted.

In a number of cases, Asian Centre for Human Rights has not received any response except the initial acknowledgement. Some of the cases are given below:

- Torture to death of Farman Ali (Case No. 327/25/2003-2004/UC): NHRC issued the notice the State government of West Bengal on 12 September 2003 to reply in four weeks.

- Custodial death of Md. Anil (Case No. 446/25/2004-2005-AD/UC): NHRC issued the notice on 29 July 2004 to Director General of Police, West Bengal asking him to submit the requisite report within 4 weeks.

- Custodial death of Lakhsminarayan/ Nagabhushanam (Case No.614/1/2003-2004-AD/UC): NHRC issued the noticed on 21 March 2004 and directed the District Magistrate and Superintendent of Police, Anantapur, Andhra Pradesh to explain as to why intimation about the death in police custody was not sent to the NHRC in time within 2 weeks.

-  Custodial Boya Vekatanna (Case No.6/1/2003-2004-AD/UC): NHRC registered the complaint on 9 April 2003 and directed the Director General of Police, Andhra Pradesh to submit the post-mortem, inquest and magisterial inquiry reports within 4 weeks.

- Rape of Smt. Gangavalli Pushpakumari by a Sub-Inspector (Case No. 248/1/2004-2005-WC/UC): NHRC registered the complaint on 12 July 2004.

- Rape of Mrs. Manju Boro (Case No. 52/3/2003-2004-AF/UC) by two army jawans: NHRC registered the complaint on 12 September 2003.

- Torture and Custodial death of Animul Islam (Case No. 52/3/2003-2004-AF/UC): NHRC registered the complaint on 1 September 2003 and directed to reply in four weeks.

- Illegal detention of Mukesh Kumar (Case No.220/34/2003-2004/UC): NHRC registered the complaint on 15 July 2003.

- Custodial death of Shiv Charan (Case No 2120/7/2003-2004-AD/UC): NHRC registered the case on 31 December 2003.

- Custodial death of Khamela (Case No 417/12/2003-2004-AD/UC): NRHC issued the first direction on 15 July 2003

- Torture of Nashir Ahmed, Abdul Wahid & his family (Case no 18/14/2003-2004-PF/UC): NHRC issued the order on 12 August 2003.

- Sexual harassment of Ms Forest Gaite (14) and Ms Gangte Veng (Case No 22/14/2003-2004-PF/UC): NHRC issued the direction on 12 September 2003.

- Illegal detention and custodial death of Dollchand (Case No 9802/24/2003-2004-AD/UC): NHRC issued direction on 17 July 2003.

- Torture and custodial death of Haliram Saikia (Case No. 29/3/2003-2004-AD/UC): NHRC registered the complaint on 1 July 2003.

- Killing of Maibam Dhanashyam alias Yangba (22) and Ngangom Binoy alias Bobo (Case No. 14/14/2003-2004-AD/UC): NHRC registered the complaint on 30 July 2003 and issued notice to the Secretary, Ministry of Home Affairs, Government of India, and DGP, Manipur to send report within two weeks.

- Extrajudicial killing of Kamkholal Haokip (17) and his younger brother Sumkhosat Haokip and Satkholun Haokip (15) (Case No 16/14/2003-2004-AF/UC): On 25 July 2003, the Commission ordered Defence Secretary, Government of India, and DGP, Manipur to submit report within four weeks.

- Torture of Hemlun Kipgen and extrajudicial killing of Seikholen Kipgen (Case No. 17/14/2003-2004-PF/UC): The Commission considered it on 1 August 2003.

- Torture of Reel Mehenpha, Franky Chara, Seloky Chara and SB Borniching (Case No. 2/14/2003-2004-AF/UC): On 12 May 2003, NHRC issued notice to Chief Secretary, Ministry of Home Affairs, Government of India to submit report within four weeks.

- Custodial death of Dipak Kumar Swain (35) (Case No. 32/18/2003-2004/OC): On 22 May 2003, the Commission asked the Superintendent of Police, Balasore, Orissa, to submit the Action Taken Report within 6 weeks.

- Custodial death of juvenile delinquent Sukant Das (Case No 185/18/2003-2004-AD/UC) - on 19 July 2003, the Commission issued notice to the DGP Orissa to submit report within 4 weeks.

If the above complaints of the ACHR, which are about 2 years old, are not old enough by NHRC standards to give any reply, there are other NGOs which have not received any reply for over 4 years. The NHRC failed to communicate any reply in the case of custodial death of Benudhar Daimary (Case No 155/3/2000-2001-AD of 22 January 2001), rape of Ms Mayanti Reang (Case No. 8/23/2002-2003/OC WC of 20 April 2002, torture of Neo Sing Hasnu and his family and extrajudicial execution of Bijendra Hasnu by Assam Police (Case No. 403/3/2002-2003/UC of 17 June 2002), custodial death of Rupen Mushahary  (case no. 68/3/2002-2003-CD of 26 July 2002), alleged torture and custodial death of Hiking Lyngdoh 1(3/15/2002-03/CD of 1 October 2005) and torture of Kuki villagers (Case No. 16/14/2002-2003/OC of 5 October 2002).

c. The Kangaroo Court: Violation of cardinal principle of jurisprudence

While NHRC rightly laments the government of India for not amending the Human Rights Protection Act of 1993, the statutory strengths in-built under the Human Rights Protection Act of 1993 have not helped. Section 3 of the Human Rights Protection Act (HRPA) of 1993 requires that among five members three must senior most judges respectively the Chairperson who has been a Chief Justice of the Supreme Court; one Member who is or has been, a Judge of the Supreme Court and one Member who is, or has been, the Chief Justice of a High Court.

The fact that three out of five members of the NHRC consist of persons who have been Chief Justice of the Supreme Court, a judge of Supreme Court and a Chief Justice of the High Court has not resulted in the NHRC upholding the cardinal principle of administration of justice. The cardinal principle of jurisprudence requires that both the prosecution and defence must be provided copies of each other replies. In a number of cases cited below, Asian Centre for Human Rights has not received except the acknowledgement and the final order. ACHR was never permitted to submit comments. It is more disappointing considering that the NHRC exercises the powers of a   civil court relating to inquiries under section 13 of the HRPA.

The “Kangaroo Court” may not be just another epithet to describe the National Human Rights Commission of India.

In the case of alleged extra-judicial execution of 14-years-old Jitendra Reang, a class VIII student of Ranguna High School under Pechartal Police Station of North Tripura district of Tripura by Tripura police on 11 February 2002, NHRC registered the complaint (No. 24/23/2002-2003/UC) on 4 September 2002. Thereafter, there was no information from the NHRC until 28 March 2005 when it gave its final order and closed the case. Asian Centre for Human Rights was never given any information about the proceedings despite that NHRC received report from the State government of Tripura on 12.1.2003 and 3 December 2004.  Even though the victim was killed by the police, the State Government of Tripura took “a decision to provide assistance to the next of kin of Jitendra Reang under the assistance to the victims of extremists violence".

In another case, pertaining to the gang rape of a Reang tribal girl by three Special Police Officers of Tripura Police on 26 May 2003 (Case No. 5/23/2003-2004-WC/UC), the NHRC did not provide any information to the Asian Centre for Human Rights except the acknowledgement on 6 June 2003 and its final order on 1 January 2005. The NHRC held proceedings on 21.7.2004 and 15.9.2004.

Whether NHRC should share the responses from the State authorities depends on the whims and fancies of the individual member of the NHRC or possibly the Assistant Registrar. As the above cases show, it is not mandatory for NHRC to involve the complainant and it delivers ex-parte order without giving any opportunity to the complaint to submit his or her comments. It is a sacrilege of justice.

d. Dismissal of complaints on frivolous grounds

NHRC often dismisses the complaints on frivolous grounds. While NHRC takes little action when the State authorities fail to provide response within stipulated time, if the complainant cannot provide the information in time, the cases are summarily closed.

Asian Centre for Human Rights vide its written complaint dated 5 July 2004 filed a complaint (No.44/3/2004-2005-WC/UC) seeking the intervention of the National Human Rights Commission into the gang rape of an Adivasi woman of Padmapakuri village under Gossaigaon police station in Kokrajhar district of Assam by three jawans of the 11th J & K Light Infantry Regiment during the night of 29 June 2004. On 16 September 2004, the NHRC sent a copy of the Action Taken Report of the Superintendent of police of Kokrajhar district to the ACHR. The Commission sought the comments of the ACHR in response to which the AHCR requested the Commission to direct the State Government of Assam to submit findings and recommendations of the magisterial enquiry. As the findings and recommendations of the magisterial enquiry was a part of the action taken by the State Government of Assam, it was necessary for ACHR to have a copy of the same to make its comments and therefore, ACHR requested the commission to send a copy of the same. On 8 February 2005, the Commission informed the complainant that the case has been close for non-receipt of comments of the complainant!   

NHRC is a law unto itself without any established appeal mechanism!

e. Exposing the complainants

Asian Centre for Human Rights has been raising the issue of lack of protection of witnesses/complainants. NHRC as a routine matter forwards the complaints to the concerned authorities who are invariably the security forces.

Across the world, complainants face intimidation and harassment from the security forces. Every year, the United Nations Commission on Human Rights adopts a resolution on “Cooperation with representatives of United Nations human rights bodies”. The resolution urges Governments to refrain from all acts of intimidation or reprisal against:

-          Those who seek to cooperate or have cooperated with representatives of United Nations human rights bodies, or who have provided testimony or information to them;

-          Those who avail or have availed themselves of procedures established under United Nations auspices for the protection of human rights and fundamental freedoms and all those who have provided legal assistance to them for this purpose;

-          Those who submit or have submitted communications under procedures established by human rights instruments;

-          Those who are relatives of victims of human rights violations;

It is a standard practice in the UN system that when a complainant requests anonymity, the request must be respected to ensure his/her safety, security and dignity. NHRC has failed to introduce any reform in this regard.

f. Flawed investigation process

In most of the cases, NHRC cannot investigate the complaints.  NHRC fails to indicate as to how many cases it investigated.

With regard to the complaint (D.O NO.5/1/2001 – PRP&P) filed by the CCRCAP on 16 December 2002, it was the NHRC which was constrained to approach the Supreme Court of India to protect the lives and liberties of the Chakmas and Hajongs of Arunachal Pradesh after the State government of Arunachal Pradesh failed to comply with is the directions in 1994-95.  In its reply, the State government reiterated the lies that the Chakmas and Hajongs are being given all the facilities.

Since the CCRCAP filed the complaint, NHRC on many occasions promised to send its Special Rapporteur to visit Chakma and Hajong inhabited areas of Arunachal Pradesh. Both Mr Shankar Sen, former Director General of Investigation of the NHRC and Mr Chaman Lal, Special Rapporteur of the NHRC were scheduled to visit. But NHRC failed to send any team so far.

The fact that the NHRC could not send any investigation on a case in which it approached the Supreme Court of India shows the lack of seriousness.

In another complaint (No.100/3/2002-2003) against police atrocities including torching of the houses at the Hojaipur village under Diphu police station, Karbi Anglong, Assam on 25 August 2002, Dimaraji Mohila Samaj (Damaraji Women’s Organisation), Hojaipur branch of Assam alleged that a combined police team comprising of the Central Reserve Police Force, Black Panthers, Assam Police etc. under the command of Mr. K K Sarma, Superintendent of Police of Karbi Anglong attacked the Hojaipur village on 25 August 2002. The police team allegedly dragged the villagers out of their houses and torched the houses to ashes along with their belongings without any provocation.

Many people were rendered homeless and reduced to destitute. The police force surrounded the village and did not allow the villagers to recover anything from the burning houses. Referring to the atrocities committed by the Superintendent of Police, the Mohila Samaj further said that he perpetrated similar atrocities at Dhansiri and other parts of the region.

Yet, NHRC gave its judgment on the basis of the report filed by the same Superintendent of Police Mr K K Sarma against whom the complaint was filed in the first place. Mr Sharma reported that “the socalled victims of the petitioners have burnt their own houses themselves for reason known to them”.

If NHRC, which consists of renowned judges, follows such a bizarre procedure where the accused can act as judge and jury of his own conduct, how could a common man trust NHRC as “fair, reasonable and just” institution?

g. Informing the complainant through the press! The NHRC style

Prior to the 7th Annual Conference of the National Human Rights Institutions in Seoul in September 2004, NHRC issued a press release stating that the Ministry of External Affairs informed that Burmese refugees could stay in India till their refugee status is confirmed by the office of the UN High Commissioner for Refugees. The NHRC sought clarification from MEA and Ministry of Home Affairs and Commissioner of Police, Delhi, with regard to the allegations made in the complaint filed by the Asian Centre for Human Rights. It was possibly pertaining to the complaint no.2893/30/2003-2004/UC. Since September 2004, ACHR has not received a copy of the response of the Ministry of External Affairs from the NHRC! ACHR came to know about it only through the media.

h. Lack of follow up for prosecution

The NHRC in its 1999-200) Annual report stated that it provided compensation to the tune of Rs 7,67,83634 in 598 cases. The NHRC often orders interim compensation but seldom follows up final compensation.

Once compensation is awarded, there is no follow up for prosecution of the culprits. It ends with compensation.

Whenever NHRC participates in a meeting related to the refugee issue, NHRC proudly refers to the case of NHRC vs. State of Arunachal Pradesh and Anr (C.W.P. No. 720 of 1995). The National Human Rights Commission had approached the Supreme Court of India to protect the lives and liberties of the Chakmas and Hajongs in Arunachal Pradesh. In its judgement on 6 January 1996, the Supreme Court among others directed the Central Government and the State government of Arunachal Pradesh to process the citizenship applications of those who had migrated and protect the lives and liberties of the Chakmas and Hajongs.

Nine years have passed, not a single Chakma and Hajong has been granted citizenship. The NHRC has failed to follow up implementation of its own case. 

4. Conclusions and recommendations

It is beyond the powers of the NHRC to address the statutory limitations. The NHRC has indeed raised many of these issues. Chairman of the NHRC Justice A S Anand has regretted that amendments to the Human Rights Act are yet to be implemented despite the commission's recommendations about five years ago. [6]

While the attitude of the government of India remains condemnable, what about the operational inefficiencies of the NHRC? NHRC in fact cannot make any excuse. There is no need for statutory changes to address operational inefficiencies but mere instructions from the Chairperson or the Secretary General to clear up the clogged up system. In this regard, Asian Centre for Human Rights makes the following recommendations to the NHRC.

-          NHRC must establish an in-house complaint mechanisms against non-registration of complaints etc; 

-          NHRC must make it mandatory to provide all the responses from the State to the complainants WITHOUT ANY CENSORSHIP. If the State authorities request to keep certain information confidential, the complainant must be informed to enable him/her to take necessary measures including appealing to the NHRC or the courts;

-          NHRC must set a specific time frame within which the responses from the state authorities be forwarded to the complainant;

-          NHRC should develop a computerized system where all the complaints must come up for scrutiny/follow up every six months;

-          NHRC should develop mechanisms to consider appeals against the closure of complaints on frivolous grounds;

-          NHRC must develop mechanisms to protect the complainants and order not to provide the addresses of the complainants to the authorities if so requested and that NHRC must publicise in its website that the complainants can request to remain unanimous;

-          NHRC must order that under no circumstances, the police officer/s against whom the allegations are pending be requested to conduct the inquiries against himself/herself;

-          NHRC must create a separate unit for implementation of its judgements or orders obtained from the courts.


[1] .  Office of the High Commissioner for Human Rights, National Human Rights Institutions, no.4 (Geneva: United Nations, 1995), 29.

[2] . Sharma is member of NHRC: Top court, The Asian Age, 30 April 2005

[3] . Rights Act: NHRC concerned, The Tribune, 14 May 2005

[4] . Congress criticises Sharma's appointment as NHRC member, The Hindu 5 March 2004

[5] . Review of SC order on NHRC appointment sought, The Tribune, 12 July 2005

[6] . NHRC chief slams Govt on not amending HR Act, The Pioneer, 1 February 2004; Cong decries CBI chief’s appointment as NHRC member, The Tribune, 5 March 200
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