Caste the biggest problem in India; still NHRC has zero powers, no State-will

23Jun07

The statements made by the National Human Rights Commission (NHRC) of India at the 5th United Nations Human Rights Council (UNHRC) sessions appeared as if the NHRC is confused about its own mandate. The NHRC is a human rights monitoring institution constituted by an Act of Parliament, ‘The Protection of Human Rights Act, 1993’. The NHRC need not look elsewhere to identify its role as a national institution in India.

Section 12 of the Protection of Human Rights Act, 1993 empowers the NHRC to enquire into instances of human rights violation in India. The Act also provides the NHRC with legal mandates to investigate and study human rights issues within and outside India. Nowhere in this law is it required that the NHRC to be a blind cheer group for the government. What the law has fallen short of, the NHRC has accomplished through its intervention at the Council sessions.

What else does it mean when the NHRC made interventions at the Council like “…It is a misnomer that the NHRI are only recommendatory bodies … interim relief to a tune of 100,000,000 Indian rupees has been recommended and also distributed to the victims or next of kin as the case may be … it has been categorically clarified by [the] Permanent Mission of India [that] technically caste discrimination does not come under racism. NHRC (India) while endorsing the interpretation… ”

In the light of the above statements the Asian Legal Resource Centre (ALRC) has doubts regarding the conviction of the NHRC of the role that it need to play in international meetings like those held at the United Nations. The ALRC is certain that the role of institutions like the NHRC is definitely not to make exaggerated claims or support false statements made the Government of India.

The Government of India had spared no possibilities thus far to showcase its domestic mechanisms, including the NHRC, to claim that there are enough venues in India to address concerns of human rights violations. These claims are part of the government’s continuing strategy to avoid embarrassment in international meetings whenever the human rights situation in India is examined or debated. But for the government’s false claims the fact is the access to domestic legal mechanisms in India is limited to a select few with the financial capacity and influence to use these mechanisms. This privileged community in India is less than twenty percent of India’s population. The justice mechanisms within India are notorious for their failure to provide reasonable remedies within acceptable span of time. 

It is in this context the interventions made by the NHRC during the UNHRC sessions are relevant. For an observer who is aware about the state of human rights in India, the interventions made by the NHRC are a farce.

Reflecting upon the statements made by the NHRC during the Council sessions, it is true that compensation to victims was awarded by the NHRC. But to claim that the compensation awarded by the NHRC was in fact paid by the government to all the victims is nothing but mendacious. Even the quantum of compensation awarded by the NHRC is questionable. For example in a series of cases recently adjudicated by the NHRC regarding the mass execution of persons in Punjab, the compensation awarded was only 250,000 Indian rupees [5680 USD] per individual. Of similar footing are the other two statements made by the NHRC regarding its recommendatory jurisdiction and caste based discrimination and racism.

The NHRC’s annual reports are indeed placed in the Parliament. The NHRC also often calls for an Action Taken Report (ATR) from the governments. It would be naive however for the NHRC if it is satisfied by the false and thus questionable ATRs submitted by the government. If these reports made by the governments are true there should have been a considerable reduction of cases of human rights violations reported from India after the constitution of the NHRC. Various reports submitted by local, regional and international human rights groups speak however the opposite. Additionally, the reports prepared by experts who hold special procedure mandates of the United Nations like the Rapporteur on adequate housing as a component of the right to an adequate standard of living and the Rapporteur on the right to food also express similar concerns.

If all what the NHRC claims by ‘enforcing compliance’ is placing a report before the parliament and calling for an ATR, it would have been better for the NHRC to limit its statement there and not try to give a false impression that these procedures are taken seriously by the government. Had it been so the NHRC would not have been chocked without appropriate paraphernalia for its day to day function. For example in spite of several requests by the NHRC, the Government of India is yet to provide enough resources for the NHRC’s investigative branch. As of today the NHRC depends upon the respective state police to investigate cases — the pitiful state of a national institution which is forced to depend upon the parties to a dispute to investigate the facts regarding the same dispute.

By endorsing the Government of India’s view on caste based discrimination as ‘just another form of discrimination’ the NHRC has publicly stated that caste based discrimination disserves no serious consideration in India. This means that the NHRC has failed to appreciate the seriousness of caste based discrimination and the plight of millions of Indians. Caste based discrimination is one of the worst forms of discrimination in human history.

For years, the unsuccessful attempt by the Government of India was to dilute the seriousness in dealing with caste based discrimination. The manifest forms of this condemnable strategy are reflected in the Government of India’s reports to agencies like the United Nations and its Treaty Bodies. One of the results of this malicious intent is the unabated practice of manual scavenging in India. By avoiding to admit that caste based discrimination is a form of racial discrimination, the attempt by the Government of India is to take away its treaty liability under the International Convention on the Elimination of All Forms of Racial Discrimination and thus to continue the practice of caste based discrimination in India.

The statutory mandate of the NHRC under Section 12 (f) of the Protection of Human Rights Act, 1993 is to ‘study treaties and other international instruments on human rights and make recommendations for their effective implementation’. By endorsing the government’s view that caste based discrimination is not racial discrimination, the NHRC has demonstrated that it has failed to understand the development in international law and has failed to fulfil its mandate. By this it appears that the NHRC is wilfully trivializing the development of international law and jurisprudence. This by no means is a positive approach by a national institution, but a big leap backwards crushing the expectations of millions of Dalits inside and outside India.

The role of the NHRC is to be a human rights monitoring agency in India. Being a national institution, the role of the NHRC is important in international forums. The NHRC must be a body that critically analyse the human rights situation in the country. It is only through such a process the NHRC can contribute towards the betterment of human rights in India. It is neither a court, nor a mouthpiece for the government. The NHRC must be an independent, credible and active institution that looks forward to addressing the deeper issues concerning human rights in India.

The effectiveness of the NHRC is to be reflected in the contribution made by the NHRC in improving the human rights situation in India. It is for the civil society and the persons who seek the assistance of the NHRC to say whether the NHRC is meeting its mandate. By reducing itself to a position of a blind supporter for the government, the NHRC has tainted its credibility.

By failing to make use of a forum like the UNHRC, the NHRC has lost an opportunity to pressure the government of India, in meeting the recommendations and demands placed by the NHRC. At least this would have ensured that the NHRC has enough paraphernalia to function as expected. Sadly, instead of this, the NHRC of India as of today has compromised its independency and has proved itself that it is utterly confused about its role as a national institution. The NHRC of India is today a failing model for similar institutions in the region to follow.
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Source: ALRC
 



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