Protection of Human Rights (Amendment) Bill 2019 passed in Lok Sabha; Tharoor says the amendment could lead to international embarrassment

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Shashi Tharoor

New Delhi: “In November 2016, the Report of the United Nations Sub-Committee on Accreditation (SCA) had raised several serious concerns about the manner of functioning of our National Human Rights Commission. The UN, therefore, deferred the process of accreditation for India on the ground that we were not fully complying with the Paris Principles as adopted by the UN General Assembly in 1993. To minimize the international embarrassment, the Central Government promised to reform the National Human Rights Commission and based on this assurance, we were re-accredited with ‘A’ status in 2017. This is why the Government has brought the Bill to Parliament. So, the entire logic of this Bill is to fulfill the assurance given to the international community that we will strengthen our Human Rights Commission, reform it in a way that matches the requirements of the Paris Principles.”

This was underscored by Congress MP Shashi Tharoor while speaking on the Protection of Human Rights (Amendment) Bill, 2019, which was passed by Lok Sabha on 19th July. It was introduced by the Minister of State in the Home Ministry Nityanand Rai.

Tharoor went on to ask: “Does the Bill live up to the Paris Principles and does it truly strengthen the Human Rights Commission in defending our citizens’ fundamental rights as enshrined in our Constitution?”

In this context, he said: “I am afraid this Bill fails on both counts for six specific reasons.” The first and most important he said is “lack of autonomy” and the fact is that the most essential feature of the Paris Principles is having an autonomous and independent Human Rights Commission in a country. None other than our own Supreme Court has observed that the National Human Rights Commission is a toothless tiger as the Government ignores its recommendations and directions. As of March 2017, there were 32,085 cases pending with the Commission out of which, 29,548 were pending either for want of reports from the authorities concerned or the reports received being pending for consideration by the Commission, Tharoor pointed out.

Further, Tharoor said, the authorities were not reporting to the Commission. The Commission had acknowledged it and requested the Government to vest it with powers of contempt to punish civil servants who do not follow the Commission’s directions, especially those who fail to submit independent reports on time. The Bill completely ignores this recommendation. This is what the Human Rights Commission itself has asked the Government to do and the Government has ignored it.

Tharoor told the House that the Secretary General of the National Human Rights Commission is a member of the Government and the investigation teams consist of policemen from various State Governments. The SCA had encouraged the Government to open up the post of Secretary General to persons who may not be civil servants; for example, lawyers with human rights background, to diversify investigating teams by including persons who are not part of the police force. But none of these suggestions has been addressed by this Bill. It would have been very easy to do it; the UN would have been very happy because it would show that we are doing the best international practice but we have not bothered to do that; this is just more bureaucrats, more police, and more Government control.

Tharoor’s second objection relates to the reduction of tenure. The Bill reduces the tenure of the Chairperson and Members from five years to three years without providing any explanation or reasons for doing so. Reducing the tenure and the subsequent increase in the frequency of the change of Members and staff can lead to inconsistency in the functioning of the Human Rights Commission and it will impact any long-term investigation undertaken by it because a long-term investigation can often take more than three years.

His third objection is on the re-eligibility to hold the office. The Bill currently allows the Chairpersons of the National Human Rights Commission and the State Human Rights Commissions to be eligible for re-appointment after their term. Therefore, Tharoor said, it is very much possible to foresee a situation where certain members may turn pliable to the Government in the hope of reappointment. The normal practice around the world is to have longer terms but fixed one term, so that no one has any desire to satisfy the Government in order to be re-appointed. The independence of the National Human Rights
Commission must be taken seriously, especially after this Government had tried to appoint one of the Vice Presidents of the Ruling Party as a member of the National Human Rights Commission and finally civil society groups made such an agitation and went to the Supreme Court, then he withdrew his own nomination. We need to expressly bar politicians from becoming members of the Human Rights Commission and that certainly this Bill does not do, he went on to emphasise.

The next objection by Tharoor is on vacancies. He drew the attention of the House towards The National Human Rights Commission and the State Human Rights Commissions stating that they have been plagued by positions which are left vacant for an unreasonable period of time. The post of the Chairperson of the National Human Rights Commission was left vacant for almost eight months. Tharoor went on to observe that the House could not probably discuss the RTI properly, but the positions in Information Commissions were also kept vacant in the same way; the office of the Lokpal was kept vacant for five years. The fact is that the post of DG (Investigations) of the National Human Rights Commission was kept vacant for a period of three years since 2014 until the Supreme Court hauled
up the Government for its failure to make an appointment. The Bill should have provided for time-bound appointments. But it does not do so. Thus, “a hostile Government can cripple the Constitution, letting posts lie vacant for a long time’ he said adding just as the RTI Act has been hollowed out by simply not appointing commissioners and allowing cases to drag, the same problem is there with the Human Rights Commission.

Tharoor’s fifth objection is on removal of the statutory bar. In order to strengthen its functioning, the National Human Rights Commission had recommended amending section 36(2) of the Act because it bars the Commission from taking cognizance of a human rights violation beyond one year from the date of the incident. The problem is that the Bill has completely ignored this recommendation, he said stating hence the Commission cannot take care of a violation which, for various good reasons, may not have been reported to it during the one-year period provided in the Bill.

Finally, Tharoor said, the Bill fails to provide clarity to the Human Rights Commission. Section 30 of the Act empowers the Government to set up Human Rights Courts in each district to handle cases of human rights violations. But the Act is completely unclear about the exact nature of jurisdiction of such courts, due to which very few Human Rights Courts have been set up, thereby increasing the number of complaints before the Human Rights Commission.

In 2016, Tharoor said, the Human Rights Commission had recommended that the Act be amended to clarify this issue about the courts, but this has also been ignored by the Bill. So, he said, “I regret to state that this Bill is piecemeal and cosmetic. It does not even scratch the surface of the problem that led to us being denied our accreditation.”

Tharoor concluded by saying that the Minister must withdraw the Bill and bring in the additional provisions to address the specific gaps that have been listed. This Bill could have been a golden opportunity to reform the Human Rights Commissions and the State Human Rights Commissions also, but it has instead turned out to be a damp squib.

Tharoor also said when the united Nations Sub-Committee looks at all of this, there is a real fear that we will face an international embarrassment.

Tharoor asked whether the Government was conscious of the fundamental concerns relating to the non-inclusion of the citizens of India in the NRC list? Many people cannot prove, even there are Ministers who cannot prove their birth dates or college degrees, he said. he further asked, how can you say that people should be excluded from the basic rights of this country because they cannot prove their birth dates?

writing off, Tharoor said: “it is ironic that we are speaking about strengthening the Protection of Human Rights Act just days after the International Commission of Jurists condemned the attempt of this
Government to stifle the voices of two of the most famous well-known, internationally recognised human rights defenders in our country; two senior advocates, Indira Jaising and Anand Grover, who have been in the forefront of defending the rights of pavement dwellers, cancer patients, women, sexual
minorities and other vulnerable sections of society. At a time when the Harvard Law School was honouring the Human Rights lawyer Sudha Bhardwaj for her work, our Government was busy arresting her and other activists. While this Government did nothing to stop wilfull defaulters from fleeing the country, they were desperate to offload an environmental activist from a plane only to be rapped by the Delhi High Court for doing so. The list goes on and on… This is the dark time for human rights in our country in many ways. I urge our human rights defenders to continue fighting as the conscience keepers of our nation. I urge the Government to ensure that the international standards you need to reach in conformity with the Paris Principles and the spirit of Paris Principles, should be reflected in the Bill that you bring. I would suggest that you take this Bill back…..”

Unfortunately, my ancestors are not Rishis. My ancestors are Homo sapiens, as the science says, and my parents are Shudras. They were not even born of any God, or part of any God. They were born outside and I am here and many people from my State are here because of the social justice movement and the human rights which we fought for till today and we would continue doing that. I think it is a very important part of human rights to preserve the scientific temper of the people of this country. Without that, we cannot have human rights and I think you have to make sure and protect that scientific temper is there in this House and nobody violates that. – Kanimozhi Karunanidhi, Dravida Munnetra Kazhagam MP, speaking in Parliament on the Bill (19 July 2019)

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