The National Human Rights Commission is a Wolf in Wolf's Clothing

Democracy, the highest form of human rights, is at peril in India today. The 2023 V-Dem Institute at the University of Gothenburg in Sweden report refers to India as “one of the worst autocratisers in the last 10 years” and places India in the bottom 40-50% on its Liberal Democracy Index at rank 97, below even Nigeria. India also ranks 108 on the Electoral Democracy Index. In 2021, the same institute classified India as an “electoral autocracy”.

In such a decaying democracy, there are several factors that indicate clear and present danger to free and fair elections to India’s parliament that are just around-the-corner. People have also opposed the use of electronic voting machines (EVMs) and demanded a  return to the paper ballot in particular. The INDIA block of opposition parties has also echoed this demand. At the core of these demands is the scathing criticism of the Election Commission of India (ECI), indicating that many have lost trust in the election watchdog.  

UN High Commission for Human Rights has recognised people’s right to participate in the conduct of public affairs as a fundamental imperative. According to the commission genuine and credible elections remain the most compelling and effective way for people to participate in governance and have their voices heard. Genuine and credible elections are nourished by a complex ecosystem made up of interlocking human rights protections: the impartial rule of law; and respect for fundamental freedoms and essential rights, such as education, which empower people to make free and informed choices. And this fundamental human right imperative of free and fair election is under grave threat in India.

Volker Turk, UN High Commissioner for Human Rights, in his opening remarks at the 55th Human Rights Council said, “In India, with an electorate of 960 million people, the coming election will be unique in scale. I admire the country’s secular and democratic traditions and its great diversity. I am, however, concerned by increasing restrictions on the civic space – with human rights defenders, journalists and perceived critics targeted – as well as by hate speech and discrimination against minorities, especially Muslims. It is particularly important in a pre-electoral context to ensure an open space that respects the meaningful participation of everyone.” 

Let’s look at what is happening to the farmers. In brazen violation of human rights and liberties enshrined in the constitution, Indian riot police in North-India used excessive force on farmers trying to reach New Delhi to demand guaranteed crop prices. Earlier, the lines of hundreds of tractors have been stalled by fearsome barricades of concrete blocks and lines of razor wire. Police have also ringed the capital on three sides, blocking highways with metal spikes, blocks and steel barricades, while mobile internet services have been cut. In places, deep ditches have been dug to stop the tractors. 

On another front, academics from around the world have urged India to cancel a huge construction project on Great Nicobar Island, warning it would be “a death sentence” for the Shompen hunter-gatherer tribals who live there. The $9 billion port project, planned to transform the Indian Ocean island of 8,000 inhabitants into what has been called the “Hong Kong of India”, includes the construction of an international shipping terminal, airport, power plant, military base and industrial park. It will also develop tourism.

Also read: For An Already Diminished NHRC, Justice Mishra’s Appointment Spells Further Doom

In an open letter to the President Droupadi Murmu, 39 scholars from 13 countries have warned that “if the project goes ahead, even in a limited form, we believe it will be a death sentence for the Shompen, tantamount to the international crime of genocide.” 

There are many more instances of similar nature, including the cold-blooded killing of 12 innocent civilians in Thoothukudi who were demanding the closure of poison-spilling Sterlite Copper smelter. None of these cases of ‘murder of human rights’ and even ‘genocide of tribals’ has touched the the National Human Rights Commission of India (NHRC) that is due for its next review for accreditation by the Global Alliance of National Human Rights Institutions (GANHRI) in March 2024. This will be the NHRCI’’s sixth round of accreditation following past processes in 2006, 2011, 2016, 2017 and 2023. 

Fact of the matter is that NHRC has failed to protect basic human rights of citizens. The office-bearers are handpicked to ensure that the charter of human rights remains merely on paper. Although meant to protect the citizens, the rights body has instead resorted to covering the government’s violations. 

Kavita Srivastava, national secretary of People Union for Civil Liberties puts it bluntly: “The state is the main violator of human rights, as per their data regarding the complaints. But there is no effort by the NHRC for the rule of law. For instance, has the NHRCI made any statement on anybody’s arrest, whether the Delhi riots conspiracy case or say Bilkis Banos accused getting remission? Hate crimes against Muslims galore, dissenters are being attacked all the time, but the NHRC is silent… The body which was supposed to act as a mechanism to protect human rights has lost its soul, so what is the point of having it, if this be the case?” 

The reasons for the miserable performance of NHRC are not far to seek. Of the six foundational principles (Paris Principles) the composition and functioning of NHRC seriously violates at least three:

(1) Independence: International law recognises that even though NHRI’s are State institutions, set up and funded by the State, NHRI’s must be independent from government and from NGOs. As one international document points out, NHRI’s must have legal independence, operational independence, policy independence and financial independence.

(2) Pluralism: ensuring that the composition of the NHRI’s reflects the social forces (from civilian society) who are the targets of social discrimination, inequality and rights violations.

(3) Accountability: The NHRC’s are morally accountable to the larger citizenry who is at the receiving end of the brazen rights violations committed with impunity by state forces confident that they are always immune from being held accountable for their actions. While the NHRCs may comply with the legal accountability of placing reports before Parliament, the issue of owning up to their moral and ethical accountability is of utmost importance.”

The appointment of the current chairman of NHRC, Justice Arun Mishra, in June 2021, by tweaking the rules is a typical case of deliberate and brazen violation of basic principles of human rights. It was condemned as a “deliberate blow to the constitution” by activists and members of various human rights organisations.

An analysis of his performance as a judge of the Supreme Court revealed that in personal liberty matters, he tended to prefer a hard line, favouring state action over charges of violation of individual liberties. In land acquisition matters, his orders indicated a tendency to favour the state as against individual landowners who challenged the land acquisition. In short, in all politically sensitive cases, he always sided with the Union government or acted in a manner to help some of its top leaders.

The cases where Justice Mishra has appeared to have helped the Union government include the judge Loya case, Sahara-Birla corruption case, Sanjiv Bhat case, Haren Pandya case and bail for activists Anand Teltumbde and Gautam Navlakha – all cases of serious human rights violation. 

According to a statement issued by activists and human rights defenders, Justice Mishra seems to have been rewarded for having declared his fealty to Prime Minister Modi in an international conference, calling him an “internationally acclaimed visionary” and a “versatile genius, who thinks globally and acts locally,” when he was still a sitting Supreme Court judge.

“How can a person who made an improper and unwarranted statement praising the prime minister in his very presence, be trusted by people to act without fear or favour to protect their human rights violated by the government?” the statement read.

For NHRC, under Justice Mishra, state hegemony and ‘national security’ far outweigh liberty and human rights of individuals. In this he is in tandem with the National Security Adviser Ajit Doval and his dictum that “in the game of power, the ultimate justice lies with the one who is strong,” and his doctrine: “The new frontiers of war, what you call the fourth-generation warfare, is the civil society.” This means that the civil society, including human rights defenders, is an ‘enemy of the state’ and should be treated as such. 

It is evident that the NHRC is ‘a wolf in wolf’s clothing’ and should be dealt with as such.