9 July 2021, New Delhi: The Working Group on Human Rights in India and the UN (WGHR) expresses its disappointment and concern at the manner in which the recent appointments to the National Human Rights Commission (NHRC) of India have been made. The process does not conform to and is in contravention of the spirit of the global agreement articulated in the Paris Principles 1993, assurances given before the Global Alliance of National Human Rights Institutions (GANHRI) and the successive recommendations made by the Sub-Committee on Accreditation (SCA) of that body.[i] It also discounts the intentions envisaged in the Protection of Human Rights (Amendment) Act [PHRA] 2019,[ii] and NHRC’s own submissions to the SCA.[iii]
When, in 2011[iv] and 2017,[v] the SCA reviewed the NHRC and granted it “A” status, it noted its concern on the lack of pluralism in the context of gender, ethnicity, or minorities in NHRC’s governing body. It noted the inadequate representation of caste, tribe and religious minorities and that only 20 per cent of the NHRC staff are women. Diversity is an “essential requirement of the Paris Principles”.[vi] It was only in April 2017,[vii] that a woman was eventually appointed as a Commissioner. Despite this, the overall gender imbalance in the NHRC membership remains. In its 27 years, the NHRC has never had a woman chairperson. The 2019 amendments to the parent Act allowed room for this to be remedied. However, the recent appointments make no attempt to remedy the gender imbalance and retain the lack of other diversities which would have made the NHRC a more representative body which conformed more closely to the Statute and its international commitments.
With a view to ensuring the NHRC’s independence, credibility and effectiveness,[viii] the SCA also noted that the selection process in the PHRA was not sufficiently broad and transparent. This too is an essential requirement under the Paris Principles and necessary to meriting any human rights institution’s “A” status. It urged the NHRC to advocate for the formalisation of the appointment and selection process so that it is reconstructed[ix] and becomes open, transparent and merit-based. This inter alia includes publicising vacancies; assessing candidates based on a predetermined, objective and publicly available criteria; and promoting broad consultation during the selection process.
However, the recent appointment process flies in the face of these SCA recommendations. In fact, a member of the selection committee, the Opposition Leader from Rajya Sabha, Mr. Mallikarjun Kharge, dissociated himself from the process in protest.[x]
Further, the 2019 Amendments to the PHRA were made ostensibly to broaden the pool of people who could become the chairperson and members. The chairperson now need not always be a former Chief Justice of India, but can be any former judge of the Supreme Court. The number of non-judicial members was also increased from two to three with one of them mandated to be a woman. The legislation specifically outlines that the choice be from “amongst persons having knowledge of or practical experience in matters relating to human rights.”[xi]
However, despite the many human rights experts, practitioners and defenders amongst academics, lawyers, doctors, media and civil society, to mention but a few of those with who meet the criteria for selection at all levels and in all geographies, a former director of the Intelligence Bureau has been selected.[xii] This is unprecedented. It is to be noted that the SCA Report of 2011 has specifically disapproved of the practice of having police officers and former police officers as members and emphasised that it would have adverse implications for the actual and perceived independence of the NHRC.[xiii]
In 2017, India won its re-accredited “A” status based on its promise of amending and strengthening the PHRA. The expectation was that it would take all necessary steps to improve its effectiveness and independence and bring itself in line with the Paris Principles.[xiv] However, it failed to address the foundational issue of a selection process that relies on establishing a publicly known, definite criteria for appointments: public announcement of vacancies, or establishing consultative, participatory selection and appointment process. Thus, the recent selection process clearly ignores India’s own assurances given to the SCA for its re-accreditation.
We also note that the NHRC’s Universal Periodic Review (UPR) mid-term report, submitted to the United Nations in 2020, only reiterated achievements as reported by the Government with little independent assessment. As communicated by the WGHR in its letter to the NHRC Chairperson at the time, the NHRC mid-term report did not objectively analyse the implementation of India’s UPR-III recommendations nor did it address the current human rights situation in the country, spanning a range of thematic issues.[xv]
The NHRC is a vital statutory body for the promotion and protection of human rights. It is relied on by thousands of the most vulnerable persons across the country. However, the distance between its promises before the international community and practice at home will open it to reconsideration of its “A” status and affect its international status.
The WGHR, thus, calls on:
(1) All relevant parties to urgently review the NHRC’s appointment procedures in line with its domestic and international commitments.
(2) The NHRC to ensure that, in all its activities and modes of functioning, it complies with the basic requirements laid down for an NHRI with “A” Status.
[i] Office of the UN High Commissioner on Human Rights, SCA Reports of 2011, 2016 and 2017. Available at: https://www.ohchr.org/EN/Countries/NHRI/Pages/SCA-Reports.aspx.
[ii] The Protection of Human Rights (Amendment) Act [PHRA] 2019. Available at: https://nhrc.nic.in/sites/default/files/PHR_ACT2019_27012020_1.pdf.
[iii] SCA Report of 2017, pp. 18–19. Available at: https://www.ohchr.org/Documents/Countries/NHRI/GANHRI/SCA%20Report%20November%202017%20-%20ENG.pdf.
[iv] SCA Report of 2011, pp. 13–14. Available at: https://www.ohchr.org/Documents/Countries/NHRI/GANHRI/SCA%20REPORT%20MAY%202011%20-%20FINAL%20(with%20annexes).pdf.
[v] SCA Report of 2017, supra note iv.
[vi] GANHRI, General Observation 1.7 of the SCA – 2018, pp. 20–21. Available at: https://www.ohchr.org/Documents/Countries/NHRI/GANHRI/EN_GeneralObservations_Revisions_adopted_21.02.2018_vf.pdf.
[vii] NHRC, Appointment of Ms. Jyotika Kalra, April 2017. Available at: https://nhrc.nic.in/about-us/composition-of-commission/bio-data-ms-jyotika-kalra.
[viii] SCA Report 2017, supra note iv.
[ix] GANHRI, Observation 1.8 of the SCA, pp. 22–23, supra note viii.
[x] Deccan Herald, ‘Mallikarjun Kharge dissociates himself from process of selection of NHRC Chairperson, Members”, 2 June 2021. Available at: https://www.deccanherald.com/national/national-politics/mallikarjun-kharge-dissociates-himself-from-process-of-selection-of-nhrc-chairperson-members-992767.html.
[xi] The Protection of Human Rights Act 1993, Section 3(2)(d). Available at: https://nhrc.nic.in/sites/default/files/PHRA_Bilingual_2018.pdf.
[xii] NHRC, Press Release, ‘Mr. Rajiv Jain, former Director of Intelligence Bureau, joins as Member, NHRC, India’, 2 June 2021. Available at: https://nhrc.nic.in/media/press-release/mr-rajiv-jain-former-director-intelligence-bureau-joins-member-nhrc-india.
[xiii] SCA Report 2011, p.14, supra note v.
[xiv] SCA Report of 2017, p. 18, supra note iv.
[xv] Letter from WGHR to the then NHRC Chairperson, Hon’ble Justice H.L. Dattu on the NHRC’s Mid-Term Report on India’s UPR-III. Available at: https://bit.ly/35j1IEO.