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Human rights commissions in India

C. Raj Kumar


Human rights commissions are most effective when their tasks are adequately supported by other mechanisms that ensure a government’s accountability.


It is nearly 15 years since the National Human Rights Commission (NHRC) was established in India through the adoption of the Protection of Human Rights Act, 1993, by Parliament. Over the years, more than 15 State Human Rights Commissions (SHRCs) have come up. The effort to improve the promotion and protection of human rights in India pre-dates the establishment of the NHRC. Now is a good time to examine not only the functioning and effectiveness of the NHRC and the SHRCs b ut also to identify the central challenges relating to human rights in the future and work towards tackling them. The nature of human rights is such that it immediately creates unparalleled social expectations and invites powerful civil society scrutiny from national and international actors. It is important that Human Rights Commissions (HRCs) succeed in their efforts to promote and protect human rights. The legitimacy and credibility of these commissions rest on their ability to address the problems relating to human rights in a society.

Accountability

HRCs are relatively new and innovative institutions born out of the initiatives of the United Nations to ensure domestic protection of human rights. The fact that international human rights laws have moved toward national constitutionalisation of human rights has strongly shaped the development of HRCs in numerous jurisdictions. HRCs perform a variety of functions.

The include investigating alleged violations, conducting public inquiries, exercising advisory jurisdiction, ensuring the implementation of human rights in prisons and other custodial institutions, providing advice and assistance to governments, creating awareness, promoting interaction, exchange, and better coordination among other national human rights institutions in the region and worldwide, promoting interaction and exchange with non-governmental organisations, and publishing annual reports.

While there is a high degree of consensus on what ought to be the functions of HRCs, their actual performance and indeed their institutional effectiveness vary significantly from country to country.

Some commissions have acquired national legitimacy and international reputation for their work in protecting and promoting human rights. Some others, in the manner of their creation and in the exercise of regular functions, reveal the state apparatus’ arm in legitimising numerous actions that are not in harmony with human rights.

In this regard, the subject of human rights commissions has invited much academic attention in recent years, besides assessment by U.N. bodies. It has also attracted civil society scrutiny following independent assessments of the work of several commissions by numerous international NGOs.

An important point to be noted is that HRCs are not the panacea for all problems related to the subject in a society. They tend to be effective only under a given set of circumstances, but most importantly, a lot depends on the level of funding, functional independence, and institutional autonomy guaranteed to the HRC. Also, the composition of the HRC matters, to a large extent, in determining the kind of focus and activism it will promote. However, HRCs are important institutional approaches that can ensure the protection and promotion of human rights.

The effectiveness or otherwise of human rights commissions does not directly depend upon the existing human rights structure in any society. What is important is how a particular commission locates itself in a society and is able to confront the issues before it. There are various ways through which states ensure human rights accountability. Traditional approaches to human rights protection and promotion have tended to focus on constitutional judicial review, human rights provisions in the constitution or other legislation in a society, and the interpretation of these laws by the courts. Such mechanisms directly ensure the enforceability of human rights through the directions of courts.

However, this method is not without its weaknesses.

Since the courts in most jurisdictions are inundated by civil, criminal, constitutional, commercial, corporate, and other types of cases, direct focus on human rights issues and cases tends to be weak. This creates a situation wherein human rights cases have to be themselves couched in the jargon of administrative or some other public law for them to receive the right kind of attention from the courts. Moreover, the elaborate legal processes and the procedures involved in court cases tend to complicate human rights issues in a court environment. Human rights issues need to be directly and seriously confronted by a body exclusively mandated to perform such a task. It was this realisation that resulted in international opinion moving towards the formation of HRCs. They are most effective when their tasks are adequately supported and supplemented by other legal, judicial, and institutional mechanisms that ensure the government’s accountability. They cannot work in isolation from courts due to their quasi-judicial nature and soft power.

Education

A culture of human rights ought to be promoted through education. Human rights education in India is extremely important, given the fact that society is witness to numerous violations and abuse of powers and that the ability of the people to fight these injustices is limited.

Awareness relating to rights is very important for empowering the people of India to seek policies of good governance from the government. The strategy for inculcating human rights culture among the people needs to be based on a number of factors: social, legal, political, judicial, and institutional.

Human rights education was a focal point of U.N. activities in creating the United Nations Decade for Human Rights Education (1995-2004) in December 1994.

In this process, the United Nations General Assembly defined human rights education as “a life-long process by which people at all levels of development and in all strata of society learn respect for the dignity of others and the means and methods of ensuring that respect in all societies.” The international significance of this is demonstrated by the fact that the UNGA sought the support of the international community and civil society during 1995-2004 in its efforts to promote a culture of human rights worldwide through education and training. The NHRC has taken several significant steps in promoting rights education in India. Recently, it proposed to include lessons on human rights in the curriculum for schools and colleges. The aim is to make common citizens understand the subject from the school level itself.

Role of academia

Human rights education in India needs to go beyond the frontiers of academic learning or, for that matter, professional pursuit. It should aim to forge social transformation and promote a worldview based on the respect for the rights and freedoms of humanity. Thus, the need for empowering the people of India cannot be better achieved than by developing varied components of human rights education. A sustained development of human rights education in India can result in the promotion of a culture of human rights. The starting point for such a development can be to develop knowledge and capacity-building in imparting greater awareness of the Constitution of India and the working of HRCs. In the process of promoting a culture of human rights, human rights education can also ignite activism on the subject.

In recent years, in the context of formulating a legal and institutional framework for implementing the right to information, India has witnessed a unique type of civil society activism that seeks to promote transparency and accountability of the government. Human rights activism is another facet of accountability-seeking endeavours.

The impact of globalisation on the Indian economy and politics is profound. Multinational corporations and business enterprises need to assume obligations they did not recognise before. They need to recognise that corporate social responsibility demands that their working and functions are in accordance with domestic and international human rights. They have a duty to share responsibilities to promote human rights education. They should support the activities of educational institutions, NGOs, and civil society organisations with a view to promoting human rights education.

The culture of human rights that we seek to achieve in India necessitates rights education that examines the policies affecting human rights and to shape the responses of HRCs and civil society with a view to enforcing accountability in governance.

(C. Raj Kumar is Associate Professor of Law at the City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)

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