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Press Release & Statements


Recent NHRC appointments disregard the requisite processes and own commitment to reforms: WGHR

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.

[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.

Allow Refuge to Myanmar Citizens Fleeing Violence and Persecution

STATEMENT FROM THE WORKING GROUP ON HUMAN RIGHTS (WGHR)

New Delhi, 20 April 2021—Raising concern over the escalating crisis in Myanmar, after the takeover by the military junta, we the members of the Working Group on Human Rights in India and the UN (WGHR) urge the Government of India to evolve a swift, humanitarian response to the crisis. 

The pro-democracy protests that have erupted across Myanmar continue to be brutally suppressed by the military junta (Tatmadaw) with excessive violence, extra-judicial killings, and torture, killing over 600 people, including youth, women and children. With internet shutdown, restrictions on media and other emergency measures, the country remains shut off from any external scrutiny of reported extensive human rights abuses.

Under such circumstances, we are concerned by official circulars denying refuge to people fleeing Myanmar. Reports indicate that these include civilians as well as members of the police and other officials who are seeking refuge from reprisals against them.

While the North-Eastern state of Mizoram has urged India to respond as the world’s largest democracy, it also said that it will provide shelter and food on humanitarian grounds. Manipur has withdrawn an official circular that asked officials in border districts to “politely turn back those seeking shelter”. It is important to acknowledge the historical kinship and ties between the communities.

We also invite attention to the insecurity already being faced by members of the Rohingya community seeking help in India. This remains a key concern especially in light of the recent order by Supreme Court of India (in Mohd. Salimullah & Anr. v. Union of India, dated 8 April 2021)  that refused to grant interim relief to the Rohingya refugees detained in Jammu, while stating that they ‘shall not be deported unless the procedure prescribed for such deportation unless the procedure prescribed for such deportation is followed’.

We emphasise that any such deportation of Rohingyas, in the presence of a real and imminent threat to their safety and security would be in breach of the inviolable principle of non-refoulement, which is recognised as an inherent facet of Article 21 of the Indian Constitution and part of India’s international obligations both under treaties to which it is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and customary international law. We noticed with deep concern that a 14-year- old Rohingya girl was taken to the border in Assam to be deported to Myanmar in the midst of the ongoing crisis despite her stating that her parents were in Bangladesh. She had to be brought back when Myanmar refused to accept her.

India has seen a continuous influx of persecuted persons, especially from the neighbouring countries. However, its approach to such situation has largely been ad-hoc and not necessarily rights-based. India has yet to accede to the UN Refugee Convention 1951 and its protocol, and hence to develop a national mechanism and domestic law to address the issues and rights of refugees.

In addition, India has existing obligations to respect and ensure the right to life and security of person, non-discrimination as well as equal protection of the law, as a State Party to other international instruments such as the ICCPR (Article 2 read with Articles 6, 9 and 14) and the Universal Declaration of Human Rights [UDHR] (Articles 3 and 7) and Article 14(1) which says: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

We call on the Government of India — as a responsible member of the international community — to adopt a humanitarian approach and allow refuge to people from Myanmar fleeing violence as a moral and legal obligation. We would also like to reiterate the need to formulate a long-term and clear policy, in keeping with its national and international obligations, to address the issue of refugees fearing political persecution in their respective countries.

Sanjoy Hazarika

Co-Convenor – Working Group on Human Rights in India and the UN [WGHR]; Commonwealth Human Rights Initiative [CHRI]

Enakshi Ganguly

Co-Convenor [WGHR] and Co-Founder HAQ: Centre for Child Rights

Miloon Kothari

Former Special Rapporteur on Adequate Housing, UN Human Rights Council [UNHRC]

Vrinda Grover

Advocate, Supreme Court of India

Henri Tiphagne

People’s Watch

Maja Daruwala

Senior Adviser, CHRI

Anand Grover

Former Special Rapporteur on the Right to Physical and Mental Health, UNHRC and Lawyers Collective

Indira Jaising

Former Member of the UN Committee on the Elimination of Discrimination Against Women [CEDAW] and Lawyers Collective

Shivani Chaudhry

Housing and Land Rights Network [HLRN]

Babloo Loitongbom

Human Rights Alert

Paul Divakar

Asia Dalit Rights Forum

Rahul Singh

National Dalit Movement for Justice [NDMJ] – NCDHR

Kumar Shailabh

HAQ: Centre for Child Rights

Madhu Mehra

Partners for Law in Development [PLD]

Razia Ismail

India Alliance for Child Rights (IACR)

Teesta Setalvad

Citizens for Justice and Peace

Suman

FIAN – India

 

 

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