India

It is now worth examining the institutional apparatus accompanying intermediate remedies in India. Since India is neither party to the Convention nor a signatory to the Optional Protocols allowing indi­vidual petitions to international human rights monitoring bodies,^[1013] it has no Strasbourg Court equivalent.

The National Human Rights Commission

Composition and Functions of the National

Human Rights Commission

The NHRC is a statutory commission established under the Protection of Human Rights Act, 1993 (PHRA).^[1014] It was established in the political context of widespread reports of custodial violence and atrocities per­petrated by police officials—an issue that attracted condemnation from several NGOs, including Amnesty International and Asia Watch.^[1015] The Prime Minister Narasimha Rao-led Congress government feared an international backlash, leading to repercussions in the nation's rela­tionship with financial institutions.^[1016]

Implicit in the statement of objects and reasons in the PHRA was the need for establishing an institutional structure to protect human rights—one that would foster greater accountability and transparency in the administration of government.^[1017] The PHRA prescribed that the NHRC would consist of: (a) a former Chief Justice of the Indian Supreme Court, who would be its chairperson; (b) a current or former judge of the Indian Supreme Court; (c) a current or former Chief Justice of a High Court; and (d) two members who had 'knowledge of, or practical experience in, matters relating to human rights' (in practice, these are usually bureaucrats).^[1018] Appointments to the NHRC were to be made by the President of India on the recommendation of a com­mittee consisting of members of the government and the opposition.

The NHRC is entrusted with performing a large range of statutory functions,^[1020] including inquiring into individual complaints of human rights violations (and making recommendations for redress to the gov­ernment), intervening in human rights proceedings that are pending before courts, visiting jails to examine the living conditions of inmates, studying international human rights treaties and making recommen­dations for their effective implementation, spreading human rights literacy, and encouraging the efforts of NGOs.^[1021] From its inception, therefore, the NHRC was set up with a broad mandate that included many functions—such as public education on human rights issues— that were specifically excluded from the JCHR's mandate.

The function that is relevant for the purposes of this chapter is set out in section 12(d) of the PHRA, which enables the NHRC to 'review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation'. Read broadly, this func­tion empowers the NHRC to follow up and pursue judicial recommen­dations of changes to the law on human rights grounds. The NHRC's functions suggest that it follows two trajectories: the first, a fast-track trajectory for redressing immediate wrongs; the second, a slow-track trajectory seeking to ingrain a culture of human rights protection in India.^[1022]

Given its wide remit, the NHRC now has a dedicated staff of over 300 people at its office in New Delhi.^[1023] It is advised by a number of thematic expert groups, such as the groups on mental health, disability, legal issues, NGOs, right to food, refugees, and emergency medical care. The NHRC sets high standards of transparency and accessibility for itself: its decisions are made public, its proceedings are conducted in the open, complaints can be made to it in the complainant's lan­guage of choice, and complainants do not need to pay fees to access the Commission.^[1024] It publishes reports annually, which, according to the PHRA, need to be presented in Parliament by the central government along with a 'memorandum of action taken or proposed to be taken' on the recommendations of the NHRC.^[1025]

Within its vast range of functions, it is quite clear that the NHRC's focus has been on addressing individual complaints of human rights violations.

Implementation of Directions to the Executive

The NHRC has also had modest success in prodding the executive to implement guidelines or directions laid down by the courts to ensure that legislation is enforced in a manner that is sensitive to human rights concerns. Conscious of the problem of a large number of pris­oners being kept in prison while awaiting trial, the Supreme Court, in Common Cause v. Union of India,^[1030] issued several directions for the release on bail of such prisoners.^[1031] The NHRC welcomed the judg­ment on the basis that it would bring about much-needed reduction in prison population,^[1032] and vigorously pursued the implementation of the court's directions. Members of the NHRC engaged with prison and legal aid authorities to chalk out how the directions should be implemented.^[1033] Prison authorities were also asked to send monthly reports to the NHRC, in order to enable it to assess the impact of the judgment.^[1034] In Joginder Kumar v. State of Uttar Pradesh,^[1035] the Supreme Court directed police authorities to allow people who were arrested to inform a relative or friend of their arrest.

In its well-known judgment in D.K. Basu v. State of West Bengal,^[1038] the Supreme Court issued comprehensive guidelines on arrest and detention procedures.^[1039] In spite of highlighting this judgment in its annual report,^[1040] the central government did not consider how it would address the judgment in its 'memorandum of action taken'. Taking seri­ous note of this lapse, the NHRC reported that the government would need to comply with the Court's guidelines, and that a failure to do so would attach contempt sanctions^[1041]—an important point which, as noted in Chapter 4, distinguishes guidelines to the executive from recommendations to the legislature.

Having said that, the NHRC has not always found it easy to secure the cooperation of the executive. Governments have sometimes delayed complying with, or sidestepped, its recommendations. Notice what the NHRC said in its annual report for 2007-8:^[1042]

[T]he Commission is constrained to point out... [that] State Governments/ Union Territory Administrations and Ministries/Departments of the Central Government have delayed—if not effectively undone—the work of the Commission by their inaction towards its inquiries, notices and recommendations. It is disheartening to note that several cases before the Commission have not been resolved because the office of the concerned State Government/Union Territory Administration has not filed its reply or not complied with the Commission's orders in a case or submitted an action taken report.

Prompting Amendments to Legislation

The NHRC has had less success in prompting legislative change on the few occasions that it has attempted to do so.

Another NHRC recommendation that was intended to deter unlaw­ful violence committed by police authorities fell on deaf ears. Section 197 of the Code of Criminal Procedure, 1973 requires the prior sanc­tion of the government for the criminal prosecution of public servants in relation to acts done in the course of their duties.^[1052] The NHRC sug­gested that section 197 be amended so as to obviate the necessity of governmental sanction for the prosecution of a police officer where a prima facie case of the commission of a custodial offence was estab- lished.^[1053] In spite of reminders from the NHRC,^[1054] this recommenda­tion went unheeded. Once again, in response to a question on the floor of the Rajya Sabha, the Union Home Minister made it clear that section 197 would not be amended, with a succinct answer: 'No, Sir!'^[1055]

Why has the NHRC struggled to prompt changes to primary legisla­tion? Evidence suggests that the Commission does not get the kind of parliamentary attention that it expects.

The annual reports of the Commission serve as an [sic] essential sources of information on the human rights situation in the country. The Commission, therefore, expresses its deep concern over the delay in plac­ing the annual report before the Parliament. The delay in tabling the report leads to further delay in getting a [sic] feedback about the action taken by the Government, and denies timely and comprehensive information on the work and concerns of the Commission, to the Members of Parliament and an opportunity to discuss its contents at the earliest and most appro­priate time.

There are more general difficulties associated with influencing the parliamentary agenda. Prodding Parliament to change the law to address human rights concerns is a complicated process. The plenary bottlenecks in Parliament in recent years have placed a premium on parliamentary time.^[1058] Even though they can be made politically accountable, individual MPs cannot be held to account legally through contempt sanctions for failing to conform with judicial recommenda­tions of changes to the law that have received the NHRC's stamp of endorsement.

It also seems that the NHRC does not invest heavily in legislative review^[1059] and following up on judicial recommendations to change the law, focusing more on its 'fast-track function of redressing individual grievances.^[1060] From this perspective, the NHRC and the JCHR have moved in opposite directions. Interestingly, monitoring compliance with declarations of incompatibility or judicial recommendations to change the law began as peripheral functions for both bodies—in contrast with the Strasbourg Court, for which it was a more direct (even if not explicit) function. The JCHR's terms of reference did not explicitly refer to declara­tions of incompatibility, just as the PHRA did not refer to monitoring compliance with judicial recommendations to change the law. At its inception, the JCHR's primary role involved legislative review, whereas the NHRC focused on addressing individual complaints. However, fol­lowing the Klug Report, the JCHR cut back on its comprehensive scrutiny service for all bills and invested greater resources in monitoring declara­tions of incompatibility. On the other hand, the NHRC faced a docket explosion—prompting increased resource allocation in favour of the 'fast-track⁷ trajectory to the detriment of the 'slow track' trajectory.

We should also be mindful of the fact that there is no formal or informal requirement for the government to notify the NHRC when courts recommend changes to the law based on human rights consider­ations. This could mean that in some cases, the NHRC is either unaware that courts have made such a recommendation, or finds out about the recommendation after the issue has lost momentum. This can be con­trasted with the JCHR, which has secured an in-principle commitment from the government to notify it of declarations of incompatibility as soon as possible, and in any case within 14 days after it is made.^[1061] This difference becomes all the more significant when there is no easily accessible database of judicial recommendations to change the law (in India), as there is with declarations of incompatibility (in the UK).

The composition of the NHRC, which consists of retired judges and bureaucrats, is yet another factor. Its relatively apolitical posture is both a strength and a weakness: a strength, because it adds credibility to its role in dealing with individual complaints of human rights viola­tions; a weakness, because none of its members are MPs or directly connected to the government or the opposition, making it difficult to galvanize political support for amending the law. Again, this stands in stark contrast with the JCHR, which is a committee of the Westminster Parliament. Although largely independent, its members are able to rally their political weight in order to compel the government at least to engage with the JCHR's recommendations.

We should be mindful of the fact that the NHRC's functions are even broader than that of the JCHR. The JCHR does not consider individual cases, which means that its focus is largely on the 'slow-track' trajectory. On the other hand, consideration of individual cases forms a salient part of the NHRC's functioning. The NHRC seeks to promote education about human rights not only in government (as the JCHR does), but also across society in general—a role that it fulfils by hosting seminars, workshops, and training programmes. It will be recalled that the JCHR's abandonment of its comprehensive pre-legislative scrutiny service for all bills unlocked some of its resources, enabling it to more effectively scrutinize responses to declarations of incompatibility. Similar sacri­fices may be required for the NHRC to play a more effective role in influencing Parliament.^[1062]

The NHRC has had one major success story vis-a-vis legisla­tive change. It persuaded Parliament not to renew the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA),^[1063] a statute that was widely considered harsh and draconian in its effects.^[1064] TADA had a sunset clause,^[1065] and with the question of renewal approaching, the Chairperson of the NHRC wrote a letter to all MPs strongly condemning the statute and recommending against its renewal. The strongly worded letter described the statute as incompatible with India's 'cultural tradi­tions, legal history and treaty obligations' and stated that the NHRC would find it difficult to fulfil its mandate unless the law was repealed.^[1066] Even following the repeal of TADA, the NHRC monitored the position of those who had been arrested when the law was in force.^[1067]

It will be recalled from Chapter 4 that in Kartar Singh v. State of Punjab,^[1068] the Supreme Court upheld TADA in spite of expressing seri­ous rights-based misgivings about some of its provisions. As was argued earlier in the book, the Court was reluctant to strike down a statute that formed an essential part of the national security apparatus. The most interesting part of the episode involving its non-renewal was that the NHRC managed to pressurize Parliament not to renew the law in spite of—rather than because of—the Supreme Court's judgment. In fact, part of its overall strategy was to produce a dossier in preparation for a petition asking the Court to review the judgment.^[1069] The NHRC found that even though the Supreme Court attempted to water down some of the provisions of TADA, these attempts were insufficient as the law 'yielded scope for gross abuse'.^[1070] The NHRC also observed that the Court did not adequately weigh the inherent defects in, and draconian procedure established by, the statute.^[1071]

Overall, it can be said that the NHRC does not manage to prompt legislative change based on judicial recommendations. This need not necessarily be seen as a failing of the NHRC—rather, the annual reports of the NHRC suggest that, in contrast with the JCHR, it does not con­ceive of this as being one of its primary institutional responsibilities. On the occasions on which the NHRC has attempted to precipitate legislative change, the outcomes have not been as it might have hoped. Unlike the domestic courts, the Strasbourg Court and the JCHR in the UK, the NHRC and the Indian courts have not been able to work in tandem to prompt amendments to legislation that raises rights-based concerns. The NHRC recently described itself in the following words: '[A]n institution that was unknown sixteen years ago is now very much part of life of the nation, and increasingly, of consequence to the qual­ity of its governance.'^[1072] This may well be true, but not as regards the NHRC's influence on primary legislation.

* * *

This chapter has examined the collateral institutions accompanying the declaration of incompatibility on the one hand, and on the other, inter­mediate remedies falling short of the power to strike down legislation in India. The declaration of incompatibility's institutional apparatus includes the JCHR and Strasbourg Court. These institutions strengthen the declaration of incompatibility, and affect the manner in which the new model of judicial review operates, in different ways. The JCHR presses the government to engage with declarations of incompatibility, ensuring that silence is not a realistic option on the table. The Strasbourg Court usually compels the Westminster Parliament to change the law following a declaration of incompatibility,^[1073] lest an aggrieved litigant armed with a declaration takes her case beyond British shores. Perhaps in the context of its vast range of functions, the NHRC has been quite successful. However, it has struggled on both these counts. The Indian Parliament has been able to ignore the NHRC's recommendations that intermediate remedies be given effect through amendments to the law. In substantive terms, it has found it difficult to influence the Indian Parliament to amend the law based on human rights concerns.