Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I

VOLUME-I

EDITED BY
HARSH DOBHAL & MATHEW JACOB

human rights law network
new delhi, india

rugged road to justice
A Social Audit of State Human Rights Commissions in India
Volume-I, April 2012
© Socio Legal Information Centre*
ISBN 81-89479-83

Edited By
Harsh Dobhal
Mathew Jacob

Copy Editing
Anupam Kishore
Sarah Pugh
Ravindra Karnena

Research and Coordination
West Bengal: Kirity Roy, Debashis Banerjee, Mathew Jacob
Assam: Debasmita Ghosh, Sailen Dutta, Manjit Kumar Das, Raju Doley
Karnataka: Sheela R., Manohar R., Ailbhe Garvey, John Joseph, Bhavana Appana, Veena Rai
Kerala: Pretty Rachel Koshy, Mathew Jacob
Andhra Pradesh: D. Padmavathi, Hemalatha, Mathew Jacob
Uttar Pradesh: Lenin Raghuvanshi, Neha Wadhawan, Rudra Prasad Mishra, Usha

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The views and opinions expressed in this publication are not necessarily views of the HRLN.
The presentations in this publication have been paraphrased from oral, sometimes impromptu,
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Acknowledgements

A t the outset, we express our deep gratitude to the victims and their family
members for reposing their faith in the Independent People’s Tribunal on
the functioning of State Human Rights Commissions, and for displaying
remarkable courage in coming out in front of the jury to narrate their tales
of horror fearlessly.
We are grateful to hon’ble jury members, some of whom were contacted at the last
minute, who took time off from their busy schedule, travelled all the way to different
places, gave patient hearings to victims, studied all the cases meticulously and finally
put down their incisive findings and recommendations.
This volume owes everything to members of the HRLN units in West Bengal,
Assam, Karnataka, Kerala, Andhra Pradesh and Uttar Pradesh. Despite all odds and
busy court schedules, HRLN lawyers and social activists are doggedly pursuing their
dream for justice and peace. They have worked tirelessly for days and nights. They
were faced with the challenging task to convince the victims’ families to come forth
and depose before the tribunal. Their guidance and leadership in each state has been
remarkable, before and after the tribunal process. Much thanks to the volunteers
and students who have contributed immensely through research, documentation
and logistics. We would like to acknowledge the untiring efforts of collaborating
organisations in these states.
Our special gratitude to Kirity Roy of West Bengal, Lenin Raghuvanshi of Uttar
Pradesh, Matthew Phillip and Manohar of Karnataka and Murali of Andhra Pradesh
for their massive support and encouragement in the entire process. These individuals
have provided the much-needed strength with all possible help in order to make the
tribunals as meaningful forums.
We are also thankful to all the following organisations who collaborated with
HRLN towards organising the IPTs: West Bengal - Banglar Manabadhikar
Suraksha Mancha; Amreswar Jana Seva Sangha; All India Anti Corruption
Organisation; Bamunia Janokolyan Samity; Basanti Border Dospanchal Suraksha
Samity; Bhangore Sankhya Laghu Mahila o Shishu Unayan Samity; Bidhan Sarani
Integrated Disable Welfare Society; Care Home; Childline (East Midnapur);
New Alipur Prajak Development Society; International Organisation for Human

iii

Rights Protection; Lodha Shabar Kalyan Samity; Praajak Malda; Right Track;
Sruti Disability Centre; Narikel Bariya Vivekananda Seva Sangha. Assam - Manab
Adhikar Sangram Samittee; All Assam Students Union; Assam Tea Tribe Students
Association; Society for Social Transmission and Economic Progress; Asian Centre
for Human Rights; Women Empowerment Cell; People’s Rights Forum; Childline;
North East Network; Legal Assistance Forum. Karnataka - Karavali Ale; People’s
Democratic Forum; South India Cell for Human Rights Education & Monitoring;
People’s Union for Civil Liberties; Karnataka Dalit Mahila Vedike; National Dalit
Movement for Justice; Mangalore Secular Forum; National Confederation of
Human Rights Organisations; Stree Jagruti Samiti. Kerala - Cultural Academy
for Peace; Parivaar Kerala; Pratyasha; People’s Union for Civil Liberties; People’s
Watch; National Domestic Worker’s Union; National Network of Positive People;
Welfare Service Society. Andhra Pradesh - Aman Vedika; Association for Promoting
Social Action; Church’s Auxiliary for Social Action; Center for Caring Citizens;
Caring Citizens Collective; Campaign for Housing and Tenural Rights; Civil Liberties
Monitoring Committee of India; Confederation of Voluntary Associations; Centre for
Social Justice; Child Rights Protection Forum; Human Rights Forum; International
Human Rights Association; Mountfort Social Institutions; M Venkatarangaiah
Foundation; National Alliance of Dalit Organisations; National Dalit Forum;
Parivarthan Hyderabad; People’s Union for Civil Liberties Andhra Pradesh; Swadhikar.
Uttar Pradesh - Uttar Pradesh Alpsankhayak Utpeedan Manch; People’s Vigilance
Committee on Human Rights; People’s Union for Civil Liberties; People’s Union for
Human Rights; Patha Dalit Adhikar Manch; Asangatith Mazdoor Manch; Dynamic
Action Group; Savitri Phule Mahilla Adhikar Manch.
Each state-wise chapter of the social audit report is the cumulative outcome of a
prolonged process where a number of individuals have contributed. Conceptualising
the IPT process, identifying the cases, approching victims and organisations in the far-
flung areas, convincing and bringing them to the venue, meticulous documentation
of cases and finally drafting the report has been an ardous journeys. We have tried to
give credits to as many persons as possible in the following chapters but it is difficult
to mention all names here. We are grateful to all of them. We thank Rekha Koli for
filing RTIs and follow up in every state, thus contibuting to the background research.
Finally, we must thank Ravindra Karnena for much required help in copy editing
hundreds of pages of the report. Last, but not the least, we thank our colleagues and
friends Anupam Kishore and Sarah Pugh for painstakingly going through the draft,
making corrections and giving final touches to this volume.

—Harsh Dobhal & Mathew Jacob

iv SHRC: SOCIAL AUDIT REPORT

Contents
Introduction 1

WEST BENGAL
Ursula Urdillo, Shreya Bhattacharya, Nivedita Guhathakurta, Kevin Clarke

EXECUTIVE SUMMARY 25

chapter-I
patterns of violations and functioning of WBSHRC 38

CHAPTER-II
Testimonies 80

interview with justice Chittatosh Mukherjee,
former chairperson of wbshrc 103

chapter-III
Jury Report 104

assam
Alin Mohanta, Nita Das, Mathew Jacob, Harsh Dobhal


chapter-I
patterns of violations and functioning of ASHRC 124

CHAPTER-II
Testimonies 140

EXPERT & JURY observations 183

CHAPTER-III
Jury Report 196

SHRC: SOCIAL AUDIT REPORT v

Contents
karnataka
Mathew Jacob, Harsh Dobhal, Maya Cheringhandy Patteri


chapter-I
patterns of violations and functioning of kSHRC 214

CHAPTER-II
Testimonies 228

Expert observations 308

WRITTEN SUBMISSION TO THE JURY
MR. JAVED PASHA, SECRETARY, kshrc 316

chapter-III
jury report 320

kerala
Heather K Sager, Jerome Belanger, Sandhya Raju


chapter-I
patterns of violations and functioning of kSHRC 340

CHAPTER-II
Testimonies 348

chapter-III
jury report 372

vi SHRC: SOCIAL AUDIT REPORT

Contents
ANDHRA PRADESH
Heather K Sager, M A Shakeel, M Chalapathi


chapter-I
patterns of violations and functioning of ApSHRC 390

CHAPTER-II
Testimonies 404

CHAPTER-III
JURY REPORT 430

uttar pradesh
Heather K Sager, K K Roy


chapter-I
patterns of violations and functioning of upSHRC 452

CHAPTER-II
Testimonies 462

CHAPTER-III
JURY REPORT 482

conclusion 489

SHRC: SOCIAL AUDIT REPORT vii

INTRODUCTION

T he need to have independent bodies which will oversee
and monitor the State’s protection and promotion of
human rights and contribute towards such policies is
widely acknowledged and established within the frame-
work of the Constitution of India. The Indian Consti-
tution is a repository of these human rights available to citizens and
persons living in India. The majority of these rights are available
against the State and it is the duty of the State to guarantee the pro-
tection of these rights. The Constitution also sets out the manner in
which these rights can be enforced. The establishment of independ-
ent institutions is an effort to further the commitment of the Indian
State under the Constitution, and to help it fulfill its commitment
under several international human rights conventions which man-
date the State to respect, protect, promote and fulfill rights.

The United Nations emphasises that national human rights institutions (NHRIs)
should play a critical role “in promoting and monitoring the effective implementation
of international human rights standards at the national level.”1 In order to discharge
their functions in an impartial and effective manner, such institutions should be ac-
corded independence and autonomy. They can be created either under the Consti-
tution or a statute. In India, the statutory route has been the preferred mechanism
for establishing the majority of the human rights institutions (HRI). Whether such
institutions are indeed independent or not has been the subject matter of several
wevaluations.
HRIs are uniquely positioned between the government and civil society organisa-
tions. Yet, they have to be independent of the influence of both. This can be compli-

1. “OHCR and NHRIs” at http://www.ohchr.org/EN/COUNTRIES/NHRI/Pages/
NHRIMain.aspx

INTRODUCTION 1

cated, particularly for the national and state commissions of India, as they are supposed to be consti-
tuted by the state as well as funded by them.2 In order to gain credibility and earn the confidence of the
people, such institutions will have to discharge their functions without any fear or favour concerning
the State. They should be willing to challenge the government and hold it to task for violations of hu-
man rights. At the same time these institutions should not be driven by NGOs. Anne Smith describes
the complexities:
…if an NHRI is seen as being too close to the government or holding an agenda dictated by
government departments, especially those who provide the funding, then they will be viewed
by NGOs and the civil society at large as simply a puppet of the government and, therefore,
damage their credibility. Conversely, if a NHRI allows NGOs to influence its workings such
that an overly close relationship develops between the two, a NHRI will simply be seen as an-
other “pro-NGO” ...Notwithstanding, if it is deemed to be pro-NGO, the NHRIs credibility
in the eyes of the most powerful group, the government, will be diminished. (Ibid, 209)
Unfortunately, HRIs in India are clearly allied with the State. They have effectively become an
instrument of the state and have been largely viewed as puppets of the State. One can refer to K.G.
Kannabiran for a further understanding of the same. In an article published in the Economic and Political
Weekly in 19923, Kannabiran argued that the creation of such institutions was due to international pres-
sure on India. India is constantly criticised for its human rights record, and therefore needs an institu-
tion that legitimises the exploitative orders of the inhumane state agencies. India has therefore created
bodies which guard and supervise the political system, whilst having no intention of reducing human
rights violations. These are bodies with a mandate to protect and promote human rights but which will
actually act like a shield for the state by giving the appearance of setting its human rights records straight
in front of the international community.
...the government obviously doesn’t propose to give up its present policy. Then the present
proposal is one of those familiar political sleight of hand devices like the appointment of
commissions of enquiry under the ineffective and over-worked Commissions of Inquiry Act
1956. A human rights commission is not going to resolve the political crises. Until these are
resolved, violence by the State is bound to continue ... If the government is really concerned
about setting right its human rights record it has to take serious steps to rebuild the existing
institutions, namely, the courts, instead of merely multiplying institutions. In fact it is more
the responsibility of persons who regularly interact with these institutions, such as lawyers,
public interest and human rights groups, jurists and academics to exert pressure on these
institutions. The human rights record can never improve by the setting up of a commission
without changing the existing social order. The debate on the setting up of a human rights
commission should lead to a review of the functioning of the justice system and attempts have
to be made to rebuild these institutions. The setting up of a human rights commission as a
response to criticism of the government’s human rights record will at best be a formal act. This
will not reduce human rights violations, but may be used to cover up such violations. (ibid,
2093)
What Kannabiran argued in 1992 is still valid two decades later. Despite the creation of 21 state

2. Anne Smith, “The Unique Position of National Human Rights Institutions: A Mixed Blessing?, Human Rights
Quarterly, 28 (2006), 904-946, at 909
3. Kannabiran, KG, “Why a Human Rights Commision?” Economic and Political Weekly, September 26, 1992,
(Commentary). Page 2092-2094

2 SHRC: SOCIAL AUDIT REPORT

human rights commissions and a National Human Rights Commission, a National Commission for
Minorities, a National Commission for Scheduled Castes, a National Commission for Scheduled Tribes,
a National Commission for Women, a National Commission for Protection of Child Rights etc, the hu-
man rights record of the State has actually worsened. However, India has attained a high level of legiti-
macy and acceptance through the establishment of these commissions. These commissions have seldom
been successful in promoting and protecting human rights. Be it the cases of disappearances in Assam,
killings by army and paramilitary forces in Kashmir, Manipur, West Bengal and Chhattisgarh, farmer
suicides in Maharashtra and Andhra Pradesh, land acquisitions and mining in Orrisa and Jharkhand,
droughts in Rajasthan and the rotting of food grains in the Haryana, atrocities against dalits and trib-
als, crime against women or the Batla House encounter in New Delhi, all that the commissions have
done is seek a report from the Government of India or respective state government concerned. In some
cases, they have carried out investigations and issued recommendations but these are seldom abided by.
‘Paper Tigers’ or ‘Toothless Tigers’ are the words that came up somewhat rampantly during the
consultation meetings held with various human rights groups across India. With mere recommendatory
powers can we expect any more from these commissions? The images of human rights activists protest-
ing in front of the NHRC during the Batla House encounter are still fresh. Can justice be expected from
an institution which is another organ of the perpetrator, i.e., the State? Or, in the struggle for justice,
will approaching human rights institutions simply result in re-victimisation from the same forces that
are accused of the violation. The NHRC, being insensitive to the human rights issues, has asked the
same accused to carry out the investigation into the issues. In other words, the NHRC has asked the
police to investigate themselves, and then submit a report. There is no doubt that there is a clear lack
of political will amongst the commission members. This can clearly be correlated with the political ap-
pointments in the commissions which will be discussed later in this section of the report.
The action taken by the NHRC under the leadership of Justice J.S. Verma during the Gujarat riots
was exemplary. But there are not many success stories to count and mention with regard to the interven-
tions made by the NHRC and SHRCs. During various meetings and Independent People’s Tribunals
(IPTs) held on the functioning of the SHRCs across the country, a mixed feeling came to the fore con-
cerning these institutions. The participants in these meetings were various civil society groups, human
rights organisations and individuals, lawyers, members of the media, retired judges of high courts and
the Supreme Court and other eminent civil society members such as academics and individuals from
other professions. While one part of civil society condemned the current functioning of the commis-
sions and asked for their closure for reasons of huge investments, political appointment and wastage of
tax payers’ money, the other group, though understanding and condemning the current functioning of
the commissions, proposed a strengthening and streamlining of the commissions.
That there is a need for human rights commissions cannot be denied. One of the prime reasons is
that they are quasi-judicial bodies with powers enshrined through the Constitution of India. They act
as an accessible justice mechanism, an alternative to court proceedings which in India are very lengthy,
time-consuming and unimaginably expensive. The NHRC and SHRCs have the power of a civil court
under the Code of Civil Procedure, 1908. The commissions also have the power to move the high
courts and the Supreme Court. The Protection of Human Rights Act, 1993 (PHRA) specifically men-
tions the establishment of a human rights court in each district. In some states they have been notified
but are not yet working, whilst in other states they are yet to be notified and not much information is
available in the public domain with regard to their functioning. These human rights courts mostly exist
just on paper, as revealed by a number of civil society groups during the IPT process.

INTRODUCTION 3

Globally, HRIs have gained enormous acceptability. They are a recent phenomenon and their es-
tablishment can be easily dated back two decades to the early 1990s. The international community had
constantly moved for the establishment of national infrastructures for the protection and promotion
of human rights, for bodies which would be constant watch dogs on matters related to human rights.
This much was apparent at the Vienna World Conference on Human Rights in 1993. Later in Decem-
ber 1993, the UN General Assembly adopted the principles relating to the status and functioning of
national institutions for the protection and promotion of human rights, famously known as the Paris
Principles. The Paris Principles are the benchmarks which clearly lay down procedures for the establish-
ment and functioning of national human rights institutions.
In the early 1990s, India was transitioning itself into the global market through newly adopted
policies of liberalisation, privatisation, and globalisation. At the same time India was under enormous
international pressure concerning its human rights records. In a neo-liberal framework, it was of the
utmost importance for India to be accepted as a potential market and partner, and to have the adequate
infrastructure that promotes and protects human rights.
The first mention of the potential establishment of a human rights commission in India was in the
election manifesto of both the Congress and Bharatiya Janata Party in 1991. The Congress party came
to power in 1991 and in the year 1992 started having discussions on establishing human rights com-
missions. On March 16, 1992, speaking in the Rajya Sabha, the then Home Minister, Mr. S.B. Chavan,
mentioned that the proposed commission was to counter the false and politically motivated propaganda
being spread by foreign and Indian civil rights agencies. On April 24, 1992, Mr. V Gadgil, the of-
.N.
ficial spokesperson of Congress, stated that the commission’s findings would act as correctives to the
biased and one-sided NGO reports and would be an effective answer to politically motivated interna-
tional criticism.4 The above statements by the home minister and the spokesperson of the ruling party
make evident the international pressure under which the Act was passed, and the fact that the Indian
State had no real interest in providing the institution with sufficient powers, resources and autonomy.
The purpose of the establishment of the commissions and the enactment of the PHRA 1993 seems
to have been driven by international pressure and to showcase India’s pro-human rights image to the
international community. The State, in the meanwhile, has appeared to be continuing with the rights
violations.
There were hardly any discussions held before the enactment of the Act. Almost all the major civil
society organisations were excluded from the seminars and consultations that took place. The govern-
ment’s background note on the establishment of the commissions was not made public and placed
before the Parliament. The government didn’t even follow normal parliamentary procedures of first
referring a bill to the Parliamentary Standing Committee for scrutiny, but instead rushed the bill to be
adopted.5 It was later referred to the Parliamentary Standing Committee where it faded from notice.
The NHRC was established on September 28, 1993 by a Presidential Ordinance. Two months later,
a fresh bill was submitted to Parliament and on January 8, 1994, after a relatively indifferent parlia-
mentary discussion, the “Protection of Human Rights Act, 1993” won Presidential approval and came
into effect.6

4. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National
Human Rights Commission of India”, pages 2-3, SAHRDC, New Delhi
5. Nierhoff, S (2006), “From Hope to Despair: The Complaints Handling Mechanism of the National Human
Rights Commission of India”, page 2-3, People’s Watch, Madurai


Since the inception of the PHRA 1993, there have been talks about its amendment. The Act clearly
contradicts the Paris Principles, which will be discussed in detail in the later sections of this report. In
1996, the Kerala High Court submitted a draft proposal for amendments to the NHRC’s procedural
regulations after conducting a spot study of various sections of the NHRC’s Law Division. A year and
a half later, McKinsey & Co. prepared a report highlighting what it found to be the commission’s main
problem – a severe backlog of pending cases – and suggesting solutions. In May 1999, the Staff Inspec-
tion Unit (SIU) conducted a staff study of the commission, the first since its inception, at the request
of the Ministry of Home Affairs. Unfortunately, few, if any, of the extensive recommendations made
in these reports have been implemented.7 Minor amendments were made in the year 2000 and 2006.
It’s now almost two decades since the inception of the commission. To date, 21 SHRCs and an
NHRC have been created. Article 21 of the Act states, “A state government may constitute a body to be
known as the...” In other words, it is not binding on states to establish an SHRC. The states of Haryana,
Uttrakhand, Mizoram, Meghalaya, Nagaland, Tripura and Arunachal Pradesh still don’t have SHRCs.
Furthermore, the SHRCs in many states are defunct and dormant for several reasons; for example, no
appointments being made for long periods of time, no infrastructure by the government etc. Examples
of this can be seen in the SHRCs of Manipur and Himachal Pradesh. Many SHRCs came into existence
as a result of civil society movements and public interest litigations. When the NHRC was contacted
in this regard, it claimed that it had already requested the state governments to establish SHRCs. The
NHRC and SHRCs are parallel bodies and the NHRC is not an appellate body for the SHRC.
The following report is a social audit of the functioning of six SHRCs in West Bengal, Assam, Kar-
nataka, Kerala, Andhra Pradesh and Uttar Pradesh. The objective for and methodology of undertaking
the social audit is mentioned below. This section will also give a critical understanding of the PHRA
1993 vis-à-vis the Paris Principles with examples from the six states. A social audit of all the SHRCs
and the NHRC is being conducted by the Human Rights Law Network (HRLN) in collaboration
with several civil society groups across India. The social audit reports of the remaining SHRCs and the
NHRC will be published in subsequent volumes.

OBJECTIVE

The NHRC and SHRCs were constituted following the PHRA 1993, with an aim to provide access to
justice to a number of people who find it difficult and expensive to approach Indian courts. However,
despite this mechanism being in place, these commissions have not been able to achieve desirable re-
sults, and the human rights situation has continued to deteriorate. Most of the violations reported to
these commissions are committed by the country’s law enforcement agencies and security forces. The
commissions suffer from a number of handicaps, such as a lack of autonomy, politically made appoint-
ments, inadequate resources and no independent investigative mechanism, thus making them incapable
of effectively addressing violations. Over the years, there has been a huge trust deficit between these
commissions and the people in general, and rights groups in particular. The country’s image as a vibrant
democracy will be at stake if such institutions fail to live up to people’s expectations.
The study of the institutions, which protect and promote human rights, specifically the interests of
marginalised sections of society, is important, given that there is limited information available on the

Human Rights Commission of India”, pages 2-3, SAHRDC, New Delhi
Human Rights Commission of India”, page 3, SAHRDC, New Delhi

INTRODUCTION 5

actual functioning of these institutions and the positive gains obtained. With the growing number of
incursions on human rights, these statutory institutions assume a lot of importance in the state. Such
commissions play a significant role in evaluating existing safeguards, recommending amendments to
strengthen the safeguards, inquiring into violations of rights by the State, and developing human rights
literacy amongst the general public. Given the recent records of violations and of State complicity, we
felt it was imperative to study this independent quasi-judicial body in each state, and to evaluate their
work, results, function, powers and people’s assessment of these institutions in light of the statutory law
and the international principles on human rights institutions.
It is with this backdrop that we conceptualised the plan to engage with these institutions (by
filing complaints and following them up, building a network of civil society closely working with
the commissions, conducting IPTs and social audits, and disseminating awareness material), and con-
vince lawmakers, government officials, the judiciary and media to strengthen these commissions, to
build and change public opinion, to strengthen civil society’s capacity and partner with groups to en-
gage with commissions, and to press for desired amendments to the Act through campaigns, lobbying
and advocacy.

RESEARCH METHODOLOGY

For the purpose of our study, we are examining the working of all the functioning SHRCs across India.
What are the benchmarks against which we can judge the SHRCs across 18 diverse states? What is the
perception of the people and civil society organisations concerning the commissions and their work?
What changes to the law are necessary for their effective functioning? These are some of the questions
the final report will seek to answer. We believe that the key ingredient that determines the success or
failure of a human rights institution is independence. The commissions should have the foundational,
functional, operational, and financial independence to conduct their affairs and discharge their func-
tions. We have attempted to assess whether the commissions are truly independent in their working,
whether they are meeting their statutory objectives and whether the legislation itself is in compliance
with the Paris Principles8 and other international standards such as the Commonwealth Secretariat’s
National Human Rights Institutions Best Practice (2001), the ICHRP & OHCHR’s Assessing the Effective-
ness of National Human Rights Institutions (2005) and Amnesty International’s National Human Rights
Institutions: Recommendations On Effective Protection and Promotion of Human Rights (2001).
The research methodology adopted for the purpose of the report included collecting data on the
work of the commissions, like annual reports, cases and orders/recommendations passed by the com-
missions. Additionally, we interviewed staff, members and chairpersons of the commissions and civil
society organisations, and gathered media reports on the work of the commissions. We approached
legal experts and former members and chairpersons of the SHRCs to throw light on the working
of the commissions. In cases where we were denied access to information, RTI applications were
filed under the Right to Information Act, 2005. The information collected was tested against the set
standards and objective of the parent statute, the Protection of Human Rights Act, 1993 and the
International Guidelines.

8. In 1993, the UN General Assembly adopted Principles relating to the Status of National Institutions (The
Paris Principles) which laid down the core minimum standards on competence, composition, responsibilities, and
methods of operation. There is a definite need to assess whether the Commissions are working in compliance with
the Paris Principles


A. Document Analysis
Primary data from the states of Uttar Pradesh, Andhra Pradesh, Karnataka, West Bengal, Assam and
Kerala was gathered; this included cases, complaints, orders/recommendations passed and annual re-
ports of the last two years. We gathered information about the administrative set-up, complaints re-
ceived and disposed of, significant work done, budgets, and details of staff from the annual reports of
the SHRCs.

B. Applications under the Right to Information Act, 2005
We also obtained information about the total number of complaints received and disposed of, and the
details of the staff working at the SHRCs through RTI applications. We have requested information
on annual budgets, action taken reports, and recommendations passed by the SHRCs in certain cases.
The SHRCs have denied us information on specific reports and recommendations on the grounds that
these are confidential. Inspections were requested under RTI Section 2(J) and a large volume of data
was analysed.

C. Media Reports
We tracked media reports on the commissions from 2006-2011 so as to assess the nature of their inter-
ventions in matters concerning human rights issues.

D. Independent People’s Tribunal
In each state, to start the process of participatory analysis of the functioning of the SHRCs, a consulta-
tion meeting was held. This meeting has the representation of people who have constantly engaged
with the SHRCs through complaints and research, and also a set of lawyers and activists from various
districts within the state that are trained in the procedures of approaching the commissions. This meet-
ing helps by providing a detailed situational analysis of the commission’s functioning, capacity building
of the people and the formation of a civil society working group which will engage with the commission
at various stages of the campaign and work towards strengthening and streamlining it.
For the purpose of this study a format was developed and was sent to civil society organisations,
legal experts, and the chairperson, members, secretary and staff of the commissions. The questions
ranged from constitution of the commission, knowledge of the staff on laws pertaining to human
rights, initiatives in the last two years, powers, complaint mechanisms and relationship between the
commission and civil society organisations. The questions were framed to assess the independence,
function, transparency and accessibility of the commissions. Samples of representative complaints were
documented with all the available information in the testimony format.
The objective of organising the IPTs is to engage with and look at the functioning of these commis-
sions critically through the eyes of the victims, experts and human rights activists, thus to catalyse the
SHRCs to function as effective, efficient, transparent and accountable institutions that address human
rights violations. The IPT exercise aims at putting together evidence dispassionately and comprehen-
sively, so that cases of human rights violations not addressed adequately by the SHRC mechanism can
be brought before the courts and orders can be obtained to address specific failures and problems.
IPTs were held in all the six states. The cases deposed before the jury in the IPTs pertained to
diverse sections of people covering most part of the states. Thus the effort was made to select cases
from as many parts of the state as possible that represent a certain pattern of vioaltion. The selection
process meticulosly ensured that cases of all vulnerable sections like women, dalits, tribals, children and

INTRODUCTION 7

members of minority communities were taken up in the IPTs. Similary, it was ensured that the different
and diverse patterns of violations such as custodial torture, extrajudicial killings, rape, violence against
women and children, dalits and tribals, matters related to land rights, etc were represented in the IPT.
Further, these cases were deposed before a jury panel comprising retired high court judges, senior ad-
vocates, academicians and other renowned civil society members. Along with the victims, experts who
have thorough knowledge and experience of the functioning of the SHRCs also deposed before the
jury. After listening to the victims and experts, each jury passed its observations and recommendations
with regard to the functioning of the commission and suggested ways of strengthening the instituion.

PARIS PRINCIPLES

The Paris Principles are the principal source of normative standards for HRIs. In 1991, the United
Nations organised an international workshop, which resulted in the formulation and adoption of these
principles. They are a detailed set of guiding principles for establishing and maintaining strong and
effective HRIs. The Paris Principles were subsequently endorsed by both the UN Commission on
Human Rights and the UN General Assembly.9 They started the process of serious international co-
operation and standardisation of HRIs.
The Paris Principles are broad and general. They apply to all HRIs, regardless of structure or type.
They provide that a national institution should be established in the national constitution or by a law
that clearly sets out its role and powers and that its mandate should be as broad as possible.10 They lay
down four factors needed to establish and monitor the HRIs, namely independence through legal and
operational autonomy, independence through financial autonomy, independence through appointment
and dismissal procedures and independence through pluralism of composition.11
The first principle under the head ‘Composition and Guarantees of Independence and Pluralism’,
clearly states that the HRIs should be pluralistic and should co-operate with a range of social and
political groups and institutions, including non-governmental organisations, judicial institutions, pro-
fessional bodies and government departments. It clearly mentions the involvement of HRIs with all
stakeholders in civil society. It also clearly mentions the role of government departments as ‘advisors’.
The composition of the national institution and the appointment of its members, whether by
means of an election or otherwise, shall be established in accordance with a procedure which affords
all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society)
involved in the protection and promotion of human rights, particularly by powers which will enable
effective cooperation to be established with, or through the presence of, representatives of:
(a) Non-governmental organisations responsible for human rights and efforts to combat racial
discrimination, trade unions, concerned social and professional organisations, for example,
associations of lawyers, doctors, journalists and eminent scientists;
(b) Trends in philosophical or religious thought;
(c) Universities and qualified experts;
(d) Parliament;

9. General Assembly Resolution 48, U.N. GAOR, 85th meeting, U.N. Doc. A/Res/48/134(1993)
10. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human
Rights Policy, OHCHR
Human Rights Commission of India”, page 21, SAHRDC, New Delhi


(e) Government departments (if these are included, their representatives should participate in the
deliberations only in an advisory capacity).12
The third principle under this heading mentions the independence through legal and operational
autonomy of the HRIs. While it is important to have an HRI, it is equally important to empower it
with constitutional powers to carry out and enforce its mandate. In order to ensure a stable mandate
for the members of the national institution, without which there can be no real independence, their
appointment shall be effected by an official act which shall establish the specific duration of the man-
date. This mandate may be renewable, provided that the pluralism of the institution’s membership is
ensured.13 It has to be noted that the idea of pluralism, or diversity, in the membership of a human
rights commission figures strongly in the Paris Principles. Pluralism, through the participation of people
from a variety of professions across of civil society and from members of different marginalized groups,
ensures a diversity of viewpoints within the commission and helps legitimize the roles of these com-
missions. Maintaining pluralism is one of the most important factors in guaranteeing the efficacy of an
HRI. It fosters independence from the government, and helps an HRI deal with complaints against the
State with a reduced worry that the HRI will be improperly influenced by the State.
The second principle under the heading ‘Composition and Guarantees of Independence and Plural-
ism’, states that the HRIs should have an infrastructure that allows them to carry out their functions.
Particular importance is attached to the need for adequate funding to allow the institution to be func-
tionally and financially autonomous. The national institution shall have an infrastructure which is suited
to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding
should be to enable it to have its own staff and premises, in order to be independent of the government
and not be subject to financial control which might affect its independence.14
The Paris Principles clearly lay down the factors that should be involved in the establishment and
monitoring of the HRIs, with special emphasis on plurality and independence. The principles also men-
tion the functioning of the HRIs. The various functions of the HRIs are described in the principles as
“responsibilities”, suggesting that these are the things that institutions are obliged to do.15
The functioning of the HRIs can be broadly categorised beneath the headings of recommendations
and proposals to the government, the protection and promotion of human rights, acting as a human
rights monitoring agency, the promotion of international cooperation, and compliance of the state
with regard to various human rights statutes and treaties, human rights education, and functioning as a
quasi-judicial body (not a compulsion). The third clause, under the heading ‘Competence and Respon-
sibilities’, clearly lays down the responsibilities of the HRIs.
“ (a) To submit to the Government, Parliament and any other competent body, on an advisory basis
either at the request of the authorities concerned or through the exercise of its power to hear a
matter without higher referral, opinions, recommendations, proposals and reports on any matters
concerning the promotion and protection of human rights; the national institution may decide to
publicise them; these opinions, recommendations, proposals and reports, as well as any prerogative
of the national institution, shall relate to the following areas:
(i) Any legislative or administrative provisions, as well as provisions relating to judicial organisa-

12. Paris Principles

INTRODUCTION 9

tions, intended to preserve and extend the protection of human rights; in that connection,
the national institution shall examine the legislation and administrative provisions in force, as
well as bills and proposals, and shall make such recommendations as it deems appropriate in
order to ensure that these provisions conform to the fundamental principles of human rights;
it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation
in force and the adoption or amendment of administrative measures;
(ii) Any situation of violation of human rights which it decides to take up;
(iii) The preparation of reports on the national situation with regard to human rights in general,
and on more specific matters;
(iv) Drawing the attention of the government to situations in any part of the country where
human rights are violated and making proposals to it for initiatives to put an end to such
situations and, where necessary, expressing an opinion on the positions and reactions of the
government;
(b) To promote and ensure the harmonisation of national legislation, regulations and practices with
the international human rights instruments to which the state is a party, and their effective imple-
mentation;
(c) To encourage ratification of the above-mentioned instruments or accession to those instruments,
and to ensure their implementation;
(d) To contribute to the reports which states are required to submit to United Nations bodies and
committees, and to regional institutions, pursuant to their treaty obligations and, where necessary,
to express an opinion on the subject, with due respect for their independence;
(e) To cooperate with the United Nations and any other organisation in the United Nations system,
the regional institutions and the national institutions of other countries that are competent in the
areas of the protection and promotion of human rights;
(f) To assist in the formulation of programmes for the teaching of, and research into, human rights
and to take part in their execution in schools, universities and professional circles;
(g) To publicise human rights and efforts to combat all forms of discrimination, in particular racial
discrimination, by increasing public awareness, especially through information and education and
by making use of all press organs.”16
The Principles provide that HRIs should make recommendations and proposals to governments on
various matters relating to human rights, including existing and proposed laws, human rights violations
and the national human rights situation in general. They require national institutions to promote teach-
ing and research on human rights and organise public awareness and education programmes. The Paris
Principles also address methods of operation and by implication, the powers of national institutions.
They are entitled to consider any issue falling within their competence without authorisation from any
higher authority. They are entitled to hear any person or gather any evidence needed to consider mat-
ters falling within their competence. Furthermore, HRIs are called on to publicise their decisions and
concerns, as well as to meet regularly.17
“(a) Freely consider any questions falling within its competence, whether they are submitted by the
Government or taken up by it without referral to a higher authority, on the proposal of its mem-
bers or of any petitioner,



(b) Hear any person and obtain any information and any documents necessary for assessing situations
falling within its competence;
(c) Address public opinion directly or through any press organ, particularly in order to publicise its
opinions and recommendations;
(d) Meet on a regular basis and whenever necessary in the presence of all its members after they have
been duly concerned;
(e) Establish working groups from among its members as necessary, and set up local or regional sec-
tions to assist it in discharging its functions;
(f) Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for
the promotion and protection of human rights (in particular, ombudsmen, mediators and similar
institutions);
(g) In view of the fundamental role played by the non-governmental organisations in expanding
the work of the national institutions, develop relations with the non-governmental organisations
devoted to promoting and protecting human rights, to economic and social development, to com-
bating racism, to protecting particularly vulnerable groups (especially children, migrant workers,
refugees, physically and mentally disabled persons) or to specialised areas.”18
The Paris Principles do not require HRIs to have a ‘quasi-jurisdictional’ function – that is, to handle
complaints or petitions from people whose human rights are alleged to have been violated. However,
where HRIs do have this function, the Paris Principles list particular obligations:
— To seek an amicable settlement through conciliation, a binding decision or on the basis of con-
fidentiality;
— To inform petitioners of their rights, and available remedies, and promote access to them;
— To hear complaints and transmit them to competent authorities; and
— To make recommendations to competent authorities.19
The Indian NHRC and SHRCs have quasi-jurisdictional functions. This will be discussed in de-
tail later in this section. A complaint can be brought to the notice of a commission by individuals,
their representatives, third parties, non-governmental organisations, associations of trade unions or any
other representative organisations. In such situations, the HRIs need to abide by the above mentioned
four points.
From the discussion above, it can be easily established that the Paris Principles clearly lay down the
framework for HRIs. It can be said that the Paris Principles are the first systematic effort to enumerate
the role and functions of HRIs. While it can be called an ideal document with regard to the establish-
ment of HRIs, it clearly lacks guidelines highlighting the functioning of the HRIs. For example, the
Principles are silent with regard to cases against armed forces. The Paris Principles are a good starting
point for discussion with regard to HRIs. The role of the Indian State is much larger than what has
been prescribed for in the Principles for an effective and strong HRI.

PROTECTION OF HUMAN RIGHTS ACT 1993

The narrative on the inception of the PHRA 1993 has already been dealt with in the earlier sections.
While some practitioners call it a token and a toothless act, others are of the belief that whatever limited

18. Paris Principle

INTRODUCTION 11

provisions are prescribed for in the Act, if utilised to the fullest, they can lead towards the protection
and promotion of human rights. This section is an attempt to glance through the Act and get an under-
standing with regards to the powers and functioning of the commissions.
The definition of human rights20 as per the Act is very clear. It reflects the fundamental rights
enshrined in the Constitution of India and the Universal Declaration of Human Rights. It refers to
rights relating to the life, liberty, equality and dignity of the individual. The underlying objective of the
Act, as the name suggests, is to protect human rights in India. The Constitution of India is a reposi-
tory of human rights available to citizens and persons living in India. The majority of these rights are
available against the state, in that, it is the duty of the State to guarantee the protection of these rights.
The Constitution also sets out the manner in which these rights can be enforced against the State. The
NHRC and several SHRCs have been established through the PHRA 1993.21 Section 21 of the PHRA
1993, with regard to the establishment of SHRCs, has stated that, “A state government may constitute
a body to be known as...” Legally it is not binding for states to have SHRCs. Many states like Karna-
taka and Uttar Pradesh have seen Public Interest Litigations (PILs) filed by civil society groups for the
establishment of a commission. Higher judiciary, on various instances, have asked state governments to
establish the SHRCs.
The NHRC ought to consist of a chairperson who has been a Chief Justice of the Supreme Court,
one member who is, or has been, a judge of the Supreme Court, one member who is, or has been,
a judge of a high court and two members who have practical knowledge and experience of human
rights.22 The members of other national commissions are deemed to be the members of the NHRC.23
The chief executive officer of the commission is a secretary general.24 Similarly, the SHRCs ought to
consist of a chairperson who has been a chief justice of a high court, one member who is, or has been a
judge of a high court or district judge with a minimum of seven years of experience, and one member
having practical knowledge and experience of human rights.25 Similar to the NHRC, the chief executive
officer of the state commission is a secretary general.26
The appointment of chairperson and the members of NHRC is done by a committee consisting
of the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition in
Lok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairperson of Rajya Sabha.27 The
duration of the term of the chairperson and the members is five years.28 Similarly, the appointment of
the chairperson and members of the SHRCs is done by a committee consisting of the Chief Minister,
Speaker of the Legislative Assembly, Minister in-charge of the Department of Home Affairs and the
Leader of the Opposition in the Legislative Assembly.29 The duration of the term of the chairperson
and the members is five years.30

20. Section 2 Definitions of PHRA 1993
21. Sections 3 and 21 of PHRA 1993
22. Section 3 (2) of PHRA 1993
28. Section 6 (1 and 2) of PHRA 1993
30. Section 24 (1 and 2) of PHRA 1993


With regard to the functions and powers of the commissions, they have the power to look into
any matter of human rights brought before them through the victim or on behalf of the victim by a
complainant.31 Though it is largely argued that the commissions can only look into complaints against
public servants as mentioned in Section 12 (a) (ii), Section 12 (a) (i) clearly says that it has the obliga-
tion to look into any complaint of violations of human rights. It also has the power to carry out suo moto
inquiries.32 The commissions have dismissed a large number of matters stating that they are sub judice.
They have the power to intervene in any proceeding involving any allegation of violation of human
rights pending before a court with the approval of such court.33 The commissions have the power to re-
view and study the safeguards provided by the constitution, treaties and other international instruments
on human rights and institutions and make necessary recommendations to the government.34 The com-
missions should involve and encourage the efforts of non-governmental organisations and institutions
and spread human rights literacy among various sections of the civil society.35
The commissions, while enquiring into a complaint, have the power of a civil court.36 Every pro-
ceeding before a commission is deemed to be a judicial proceeding.37 A commission, for the purpose
of investigation into a matter, can utilise the service of any officer or agency.38 The appointed officer or
the agency needs to submit a report before the commission within a stipulated time and on that report
the commission, after satisfying itself with the facts (cross verifying and asking for replies from different
parties) will issue recommendations.39 The recommendations can direct the concerned for payments
of damages, initiate proceedings for prosecution, and/or move the high court or the Supreme Court.40
The recommendation issued by the commission has to be supplemented with a compliance report by
the government normally within a period of one month.41 However, in dealing with the complaints
against armed forces, the commission can only seek a report from the central government. Obtain-
ing the report, the commission can either proceed with it or make its recommendations to the central
government which is duty bound to furnish the action-taken report normally within a period of three
months. The commission should then publish its report together with the recommendations and action
taken. It has to be noted that other sections of this law are not applicable with regard to complaints
against the armed forces.42
The commissions are duty bound to furnish annual reports, and special reports if needed. The re-
ports have to be tabled on the floor of the house by the government along with the action taken report.
If any recommendation has not been accepted by the government, the reason has to be mentioned.43
One of the ground-breaking sections under the PHRA 1993 is the establishment of Human Rights
Courts (HRCs). The HRCs were envisaged for a speedy trial in cases of human rights violations. In

31. Section 12 (a) of PHRA 1993
32. Ibid
33. Section 12 (b) of PHRA 1993
34. Section 12 (c), (d), (e) and (f) of PHRA 1993
35. Sections 12 (h) and (i) of PHRA 1993
36. Section 13 of PHRA 1993
39. Section 14 (2), (3), (4) and (5) of PHRA 1993
41. Section 18 (f) of PHRA 1993
42. Section19 of PHRA 1993

INTRODUCTION 13

each district a court of session may be specified as a human rights court. For each human rights court,
there should be a specified public prosecutor or an advocate with not less than seven years of practice.44
The above sections have clearly laid out the broad understanding of the Paris Principles and the
PHRA 1993. Based on the Paris Principles and the PHRA 1993, the following section tries to under-
stand the functioning of six State Human Rights Commissions of West Bengal, Assam, Karnataka,
Kerala, Andhra Pradesh and Uttar Pradesh. While looking into the functioning of the commissions, an
attempt is also made to refer to the powers of the PHRA 1993 vis-à-vis the Paris Principles. For the
same purpose the indicators used are Establishment, Independence, Appointments and Composi-
tion, Infrastructure, Relationship with Civil Society, and Accessibility.45 Examples from the above-
mentioned SHRCs will be quoted wherever deemed fit for a clearer understanding.

ESTABLISHMENT

The Paris Principles clearly state that for the establishment of the HRIs, they should be part of the law
and entrenched in the Constitution. This legitimises the independence of a commission and enshrines
it with legal powers. Following this, the NHRC and SHRCs were established under the PHRA 1993.
The reasons for the Act, and how it came into existence have already been discussed in earlier sections of
this report. Although the PHRA 1993 lays the ground for the establishment of the commissions, it con-
tains many flaws contradicting the Paris Principles, in terms of independence, appointments, engaging
with civil society etc. Civil society groups lobbied for amendments to be made to the PHRA 1993, and
for it to be in accordance with the Paris Principles but, to date, they have been ignored. There has been
a clear decline in the way the commissions function over the years if we look at the nature of complaints
taken up and action taken hitherto. As mentioned, the social audit process brings out that the commis-
sions’ failures are not only because of the weak PHRA 1993, but also because of the lack of political will
of the commissions. Positive clauses with regard to the effective powers of the commissions have not
been put into practice. While the Act refers to engagement with civil society organisations and encour-
ages human rights work in the country, the commissions appear to be happy to ignore civil society and
be content being an extension of the State.
The PHRA and the establishment of the commissions serve as mere showpieces to portray a posi-
tive image to the rest of the world. It has been an extremely sad state of affairs. India has yet to make
its National Human Rights Plans of Action, an action it committed to at the World Conference on
Human Rights in Vienna. The lack of will to uphold its own mandate has affected the entire state of
affairs, and people who held great hopes for the commissions now tend to take the old route to justice
back with the courts. There are visible gaps in the jurisdictions of the national and state commissions.
The complainant is unaware of whom to approach in which case. Sometimes cases have been addressed
by the NHRC whilst in other instances similar cases have been transferred to a SHRC. It also has to be
noted that transfer of a case means closure at the NHRC’s end and is shown as a disposed of case, while
in reality the complainant is still seeking justice.

44. Sections 30 and 31of PHRA 1993
45. The following indicators are part of the Benchmarks as prescribed by the OHCHR through its publication;
Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human
Rights Policy


INDEPENDENCE

A commission’s independence reflects its effectiveness. It establishes its legitimacy and credibility. In-
dependence from the government and any other private interest is the strong foundation on which a
commission needs to be established. The indicators of independence are appointment mechanisms,
terms of office, mandate, powers, funding, investigation etc.
The PHRA 1993 clearly violates the Paris Principles when it comes to independence. The NHRC
and SHRCs have been established by the PHRA 1993 and are answerable to the Parliament. The line
between the legislative and the executive is very thin. Instead of answering to an independent authority,
the NHRC and SHRCs are responding to the government of the day. The NHRC and SHRCs report to
the Ministry of Home Affairs, the same ministry which also oversees the work of the police, immigra-
tion, communal harmony, border management, special laws for terrorism and insurgency etc. Although
most complaints lodged with the commissions are made against these departments, the NHRC and
SHRCs appear to be bound by restrictions to move against them. This makes the commissions totally
ineffective and allows a huge scope for government invasion into the commissions’ functioning.
The PHRA 1993 fails to make the NHRC and SHRCs independent bodies. They receive instruc-
tions from government ministers, since they are required to report to them by virtue of their appoint-
ments having been made by them. There has been no recorded evidence of the NHRC and SHRCs
taking suitable action against the government of the day or of moving a court to action. In most of the
complaints of grave human rights violations, in which state parties are perpetrators, matters are closed
by simply recommending petty compensations. The commissions’ silence on the issues of armed kill-
ings and torture in various states, arbitrary arrests, sedition laws etc., are clear examples of the same.
While the NHRC did brilliant work to take suo-moto action in the Gujarat carnage and conducted the
investigation, its silence in the court was evident of government pressure.
In the report from Assam, it can be seen that the NHRC and SHRCs have been quiet observers
of secret killings and disappearances. Victims’ narrations and the commissions’ proceedings have been
documented in order to investigate the role of the latter. In the case of Biman Bose46, it took the Assam
SHRC 10 years to order a compensation of Rs. 20,000, while no action was initiated against the perpe-
trators of the crime. This token-like justice clearly demonstrates the restrictions under which these com-
missions operate. There are similar examples from the state of Karnataka, where the Karnataka SHRC
has not moved an inch to protect the victims of communal attacks led by the members of the Vishwa
Hindu Parishad and Rashtriya Swayamsevak Sangh. Attacks on progressive journalists have become a
common occurrence in the state. The commission in Karnataka is scared to move against the communal
forces which have the support of the ruling BJP government. In West Bengal, the SHRC has not moved
an inch in the huge volume of cases filed by many human rights groups on the issues of BSF killings.
In cases of custodial deaths and brutal police tortures, there are instances where the commission has or-
dered compensatory payments to victims of only Rs. 5000 and 3000. Most of the cases are, shockingly,
still pending for many years. The story is no different in Andhra Pradesh, Kerala and Uttar Pradesh.
Because commissions are not guaranteed their independence, they remain mere showpieces of the State.
Payment of compensation is, on principle, not accepted by many civil society organisations. For an
act of crime by State forces tax payers’ money is wasted, while the State forces and agencies continue
to operate in the same way. There are no recorded instances available which prove that departmental

46. This case was deposed in the Assam IPT organised by HRLN in Guwahati

INTRODUCTION 15

proceedings or criminal charges have been initiated against the accused. The State and the commission
are hand in glove when it comes to the protection of the accused fellow from their department.
The commissions have zero independence when it comes to investigation into a matter of human
rights violation. The investigation mechanism of the commissions is completely flawled in nature. In
the reports from various states compiled in this edition, one can find several instances where the perpe-
trators of the crime and the accused were asked by a commission to clarify the charges against them and
furnish a report. Upon receiving a complaint of police torture, a commission has asked the same police
to investigate the matter, and based on the report has closed the matter. Or, upon receiving a complaint
of negligence by a government department leading to violation of human rights of the victims, the com-
mission has asked the same department to conduct the investigation and furnish the report.
It has been very shocking to learn that commissions seldom conduct independent investigations.
This results not only in biased investigation and manipulations of facts, but in many instances in the
form of a re-abuse of the victims for having approached the commission to file a complaint against
the accused. Investigations of complaints concerning human rights violations are different to criminal
investigations. Even in criminal matters, human rights violations can be investigated independently of
the criminal charges. In such cases we need not have the police doing all the investigation. It can be
conducted by a team comprising of doctors, academicians, psychologists, human rights activists etc.
Financial autonomy of a commission guarantees its overall freedom. This also means an independ-
ent way of operating, and no commitment to the government. But the commissions in India depend
solely upon the Ministry of Home Affairs. The commissions don’t raise their funds on their own. The
commissions should determine their budget and channel funds for the same. In the national plan, a
separate fund is to be kept for the commissions to operate on. Financial independence will ensure the
commissions are not accountable to the government but rather to the people. The financial situation of
the commissions is very disappointing. During the visit to the Assam SHRC it was observed that even
paper and printing resources were not available, and most of the time they have to be supplied by the
people approaching the commission. In Karnataka SHRC, the corridors were filled with files and staff
trying to sort through them, while the commission has asked the state government repeatedly for a new
building to operate in. The situation of other commissions is no better. The staff members are also ap-
pointed after requests to the government, and are sent to these commissions on deputation, more often
on punishment posting.
In brief, the commissions are completely under the control of the government of the day. Be it with
regards to appointment, investigation, finance or their functioning. The idea of the Paris Principles, for
an independent autonomous commission, has been defeated in the past two decades.

APPOINTMENT AND COMPOSITION

The composition and appointment process of the commissions is the most crucial element in determin-
ing the independence and adequate functioning of a commission. The PHRA 1993 contradicts the Paris
Principles on the appointments to and composition of the commissions. It has legitimised the appoint-
ments in such a way that is always in favour of the ruling government.
While the Paris Principles mention the diversity in the composition of the commissions, keeping
it positioned between the government and civil society, the PHRA 1993 has given all the power to the
government with regards to the appointments to the commissions. The provisions laid down by the
Paris Principles have already been discussed in the earlier sections of this report. According to the PHRA


1993, the appointment of members to the commissions is to be conducted by a committee comprising
of the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition in
Lok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairman of Rajya Sabha. If we look
critically at the appointment committee, four out of six members are from the ruling government. It is
evident that a person not acceptable to the ruling government can’t become a member or Chairperson
of the NHRC. The story is the same for the SHRCs. With the current provisions, the bias in appoint-
ment can’t be dismissed. Most civil society groups see the appointments to the commissions as post
retirement benefits for government friendly bureaucrats and judges. The commissions have turned out
to be parking lots and means of welfare for the retired bureaucrats and judges.
There has been no representation of members of civil society in the existing commissions. Human
rights activists are not welcomed onto the boards of the commissions. Members of State forces, who in
most instances have been party to or guilty of the crimes investigated, have been in the commissions.
Representation of women in the commissions has been a serious worry. No woman has ever been ap-
pointed as a member or chairperson of a commission. Representation of the marginalised, such as dalits
and tribals is also seldom seen. While the commissions deal with a large volume of complaints involv-
ing women, dalit and tribal cases, the lack of representation of these sections of society makes them
equally vulnerable and marginalised in front of the commissions too. Though the Act mentions the
appointment of one member who has knowledge and experience of human rights work, this provision
is generally not adhered to.
To ensure diversity in the appointment process, there needs to be an engagement between the gov-
ernment and civil society. There need to be nominations for the commissions which can then be elected
by the committee, which again needs to be comprised of members who are independent of the govern-
ment. While the government argues that there are retired judges in the commissions who provide legiti-
macy, these judges need to act like advisors for the commissions which should be represented by people
who have expertise in human rights and have carried on such work for a considerable amount of time.
The composition of the commissions is also not adequate to deal with a large volume of cases.
With only a chairperson and a few members, it is impossible to do justice to the complaints that come
before the commissions. The commissions now need to move out from the national and state capitals
and have offices at the district level. It is extremely difficult for a person from a far-off village to continu-
ously come to the state capital in order to deal with their case. The complainant incurs a huge amount
of expenses in this way. Operating in each district would ensure that the workload of national and state
commissions is more appropriately distributed, and hence they would be more able to reach out to
everyone approaching them for justice.
The narrative from the six states that we are looking at specifically is not encouraging. The commis-
sions have constantly struggled to have a full board as per the current provisions of the PHRA 1993.
States like Assam, West Bengal and Uttar Pradesh have run for years without a chairperson. When we
approached the Assam SHRC, there was no chairperson, and both the members had been on leave/
medical leave for a long time. It operated with only one secretary who was on a part-time appointment.
West Bengal and Uttar Pradesh have been without chairpersons for a considerable amount of time.
Civil society groups in Uttar Pradesh allege that the seat was kept vacant for more than a year to accom-
modate the current chairperson, since he had given a favourable order for the government. Through an
RTI, it was found that he had come to the office for only some 30 odd days in the previous calendar
year. The situation of the southern states which are part of this report seems relatively better but the
same flaws can be observed from time to time.

INTRODUCTION 17

With the current situation, it is evident that the commissions are actually at the mercy of the ruling
government, whilst civil society, in all regards, is kept at the periphery of the operations. Out of a whole
pool of civil rights activists in India, none has ever made it to the NHRC. The international community
concerned with the functioning of human rights institutions should look into the matter, the reasons
for this are loud and clear. In such a situation commissions are not doing anything but justifying the
horrendous acts of the state.
The criteria for appointment mentioned are in favour of the ruling government. Appointment to
a commission has been laid out in such a way that an entire section of society, people who have been
fighting for rights for several decades, have been excluded from the operations of the commissions.
For the appointments to be transparent and pluralist in nature there need to be amendments to the
existing PHRA 1993. The powers with regard to the appointment and composition have to shift to an
autonomous body which looks into the functioning of the commissions. The direct appointment by the
executive and the legislative is not desirable and the records of the last two decades show that they have
failed to protect and promote human right in India. The commissions, as they stand, don’t reflect the
social and political diversity of India.

INFRASTRUCTURE

Proper infrastructure remains a concern for the commissions in India. They are at the mercy of the
government for everything with regard to their operations. Most of the SHRCs operate from the build-
ings allotted to them by the state governments. Despite several years of existence none of them have
managed to obtain their own buildings. Most of them are located among other government offices and
share an inadequate amount of space. The NHRC, despite having been operational for the past two
decades, and despite having a huge building, lacks financial resources and proper knowledge of human
rights. This is the case with state commissions too.
There can be genuine concerns raised when it comes to the infrastructure of the commissions in As-
sam, Andhra Pradesh, Karnataka, Kerala, West Bengal and Uttar Pradesh. During the visit to the Assam
SHRC, it was found that it operates from an old building that it shares with the Guwahati Metropolitan
Development Authority. The building not only smells bad because of the lack of maintenance, but also,
the staircases are dark and don’t contain a single light-bulb. The office is situated on the 3rd floor which
makes it impossible for a disabled or elderly complainant to access. The Andhra Pradesh SHRC, when
approached with regard to a few cases, seemed to have lost the details of the cases amongst their files.
There was no file maintenance system and everything was just stacked haphazardly in a room. The at-
titude of the staff towards us was also rather negative. The Karnataka SHRC meanwhile operated from
a new building. They have been asking the government for an independent building for years but this
has not been granted to them. The current office doesn’t have enough space to accommodate the com-
mission’s staff. Many members of staff were working in the corridors of the floors allotted to the SHRC.
This situation is similar with other SHRCs too. To enter into the West Bengal SHRC one needs
to go through a security check like the ones at the airport. Very few amongst the commissions have a
website. For those commissions who do have a website, there is hardly any information available with
regard to the commission. The most operational website of all the commissions is that of the NHRC. It
has to be mentioned that all these commissions are not disabled-friendly. Their presence amongst other
state offices makes it difficult for victims to approach them. In some commissions, even to get a RTI
reply, paper has to be furnished by the other party.


RELATIONSHIP WITH CIVIL SOCIETY

From the above discussions it is quite evident that the commissions are allied with the governments.
They have been set up to be just another government department. While their mandate is for the pro-
tection and promotion of human rights, they are just engaged in giving a clean chit to the government
and upholding its human rights record.
The commissions’ relationship with civil society is very limited and restricted, if in fact there is any
relationship at all. There is no membership of representatives of civil society in the commissions in any
capacity. While conducting the IPTs, the commissions stayed away from the proceedings and in most
cases we were told that the commissions are not answerable to civil society and that they are constitu-
tional bodies answerable only to the government. Such is the attitude of these commissions that they
seldom engage in any concrete manner with civil society organisaitons and human rights groups.
The commissions need to engage in human rights education programmes and build awareness
amongst the general public concerning their rights. No commission seems to be carrying out these ac-
tivities. It was surprising to discover that even some lawyers and human rights activists don’t know the
commission’s address in their state. Over the years, the commissions have just fulfilled the bare mini-
mum of their mandate, by being in existence, and they have never reached beyond this. The impression
of these commissions being just another government department is validated by the fact that they never
involve themselves with civil society.
For members of civil society, the only way they can engage with the commissions is by way of be-
ing a complainant. As mentioned before, the websites are not functional in most cases. Furthermore,
the websites are mostly in English, thus making it difficult for the local people to understand them.
The attitude of the commission members, and their view that they are supreme authorities, alienates
them from the people. Even the most urgent of human rights violations, instead of being immediately
investigated by the commission, are simply transferred from desk to desk. While the Karnataka SHRC
has constantly asked the government for the involvement of civil society members in investigating com-
plaints, the government has never paid this request any attention.

ACCESSIBILITY

Commissions mandated with protecting and promoting human rights ought to be accessible to the
people, especially to those belonging to various marginalised communities. The commissions should
give special importance to hearing the complaints of such groups. Also, public information should be
available and shared with a larger group through various mediums.
The commissions in India operate from the state capitals. None of the commissions have shown
any intent to move out from the comfort zone of the capital in order to be at district level, with the
exception of the Karnataka SHRC. For people living in different districts in the state it is increasingly
difficult and expensive to come to the state capital again and again for their complaints. There is not a
single individual present representing the commissions in the districts. The commissions are not acces-
sible to people with disabilities or to elderly citizens.
The commissions in all the states have failed to equip themselves with a diverse staff. Most of the
appointments are made by the government and most of the members are men belonging to the higher
socio-economic strata of society. It is very difficult for a woman or individual from the marginalised
sections to approach the commissions and seek justice. In grave cases of custodial rape and torture, a

INTRODUCTION 19

woman victim has to address her case to the exclusively male members of the commission. Sensitivity
and compassion amongst the members is clearly lacking.
Also the commissions have seldom conducted any activities in the past, whereby the people in far
off districts can learn about the existence of the commissions and their powers. For most people, the
commissions remain an unknown entity. There is a clear lack of awareness among the common people
about the commissions, and therefore most of the complaints lodged with the commissions are sent by
civil society groups on behalf of the victims.
In accordance with the PHRA 1993, for the commissions to be more accessible, it is important that
human rights education programmes are conducted in each district by the commissions along with civil
society groups. Also, the commissions need to have representatives at district level, making it easier for
people to approach them and follow up their cases. The establishment and proper functioning of the
human rights courts will also help in this process.

CONCLUSION

The NHRC and SHRCs in India are currently in a grave state of disarray. The hopes of the millions of
people who were advocating for these commissions have been turned into despair. While many have al-
ready given up the hope of any improvement in the functioning of these commissions and do not want
to engage with these institutions, there are yet a large number of activists, lawyers and social workers
who for years have constantly engaged themselves with the commissions in an attempt to seek justice,
work and campaign towards streamline their functioning and to help make them more effective.
The idea of the IPT has been the same; to monitor and strengthen the functioning of the com-
missions. These IPTs clearly depict a representative sample from each state of the voices of victims of
human rights violation and the responses of the commissions. Examining the testimonies of victims
from each state will give a clear idea of the functioning of these commissions. The jury reports are also
indicative of the fact that reforms are needed in the functioning of these commissions by the way of
amendment to the Act and by the way of proper compliance with the current provisions in the Act.
With this attempt, we are hopeful that the idea of a strong commission is possible, whereby the
commissions take strong cognisance of their current state of affairs and take necessary actions to protect
and promote human rights effectively and efficiently.


WEST BENGAL
ASSAM
KARNATAKA
KERALA
ANDHRA PRADESH
UTTAR PRADESH

West Bengal Ursula Urdillo | Shreya Bhattacharya
Nivedita Guhathakurta | Kevin Clarke

SL.No 01 City Kolkata
Total Cases before Jury 30 Date July 31, 2011
Jury: Justice Malay Sengupta – Retd. Acting Chief Justice Sikkim High Court; Adv. Sadhan Roy Choudhry -
Advocate Kolkata High Court; Mr. Sarfaraz Ahmed Khan - Assistant Professor, West Bengal National University
of Juridical Sciences, Kolkata; Mr. Sujato Bhadra – Eminent Social Activist
Networking Groups
Banglar Manabadhikar Suraksha Mancha; Amreswar Jana Seva Sangha; All India Anti Corruption Organisation;
Bamunia Janokolyan Samity; Basanti Border Dospanchal Suraksha Samity; Bhangore Sankhya Laghu Mahila
o Shishu Unayan Samity; Bidhan Sarani Integrated Disable Welfare Society; Care Home; Childline (East
Midnapur); New Alipur Prajak Development Society; International Organisation for Human Rights Protection;
Lodha Shabar Kalyan Samity; Praajak Malda; Right Track; Sruti Disability Centre; Narikel Bariya Vivekananda
Seva Sangha
Note: In West Bengal due to a court order, whereby it is prohibited to hold ‘Tribunal’, we called the proceedings as a
‘Fact-Finding Meeting’ on the functioning of West Bengal State Human Rights Commission.

The fact finding meeting on the functioning of
west bengal state human rights commission

EXECUTIVE SUMMARY
Establishment of Human Rights Commissions

The West Bengal Commission was the first State Human Rights Commission (SHRC)
to be established in India. Established on January 31, 1995, by the State of West Ben-
gal via notification No. 42 HS/HRC, it has the power to perform the functions set
forth in Chapter V of the national wide Protection of Human Rights Act of 1993.
The functions of the commissions are: “to inquire, on its own motion or on a petition
presented to it by a victim or any person on his behalf into the complaint of – violation
of human rights or abetment; or negligence in the prevention of such violation by a
public servant...”1 The commission begins this process by starting an investigation on
its own (suo moto), following a petition submitted by a victim or any person on the
victim’s behalf or following a direction or court order. If evidence of abuse is found,
the commission may recommend actions to the state government to redress the issue.
Most redress granted comes in the form of monetary compensation for the victim or
victim’s family. Generally, the State Government in West Bengal accepts the recom-
mendations given by the commission. In this sense, the commission constitutes an
efficient instrument of redress.
Although the birth of the commission brought about a resource for victims of hu-
man rights violation, it faced a lot of opposition from the government and law enforce-
ment agencies. For example, the Chief Minister Buddhadeb Bhattacharjee, in 1997, in-
structed the police to use the guns provided by the government to combat crime and not
to inconvenience themselves by worrying about criticisms by the commission, which
he would ‘handle’. This hostile reaction by the executive highlights the importance for
commissions to hold sufficient powers to function independently from the govern-
ment. Due to the ineptitude of the commissions, NGOs have brought claims against
the commissions before the courts. Following one of these petitions, the Calcutta
High Court ordered in 2010 the establishment of a committee to ascertain the actions
taken by the commissions on cases of torture previously submitted before them and
which had not received any response. This committee is allowed to make recommen-
dations to the commissions. Unfortunately, to date no action has been recorded by the
committee.

1. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights
(Amendment) Act, 2006 No. 43 of 2006, Chapter III, Section 12 (a)

WEST BENGAL 25

Fact-Finding Meeting

Due to the overwhelming inefficiency of the commission in West Bengal, it was evident that the role
of the commission needed to be significantly improved. For example, many complaints submitted by
NGOs before the commission remained in a stalemate. This resulted in NGOs submitting RTIs and
writ petitions before the Calcutta High Court, however nothing resulted from this action. For these
reasons, many NGOs started to resort to other human rights commissions, in their plea to improve the
situation of human rights in West Bengal. Due to the overwhelming frustration with the national and
state commissions, a Fact-Finding Meeting (FFM) was held on July 31, 2011, in Calcutta. The main
objective of this event was to streamline and strengthen the commission to function as an effective,
efficient, transparent, and accountable institution that addresses human rights violations. In so doing,
twenty-one cases, which include torture, rape, fake encounters, extrajudicial killings, and inaction by
authorities, were deposed by victims in front of a panel of four members. All the cases show negative
aspects of the commission’s operation. For example, many cases describe incidents where complaints
or petitions were filed, but there was no response or update regarding the matter. In addition, some
cases describe incidents where the WBSHRC closed a matter due to ongoing investigations occurring
in other departments. This was disturbing because the department that was investigating the matter was
the same department that was being accused for the human rights violations in question; therefore, an
independent investigation was not possible. Thus, the selection of cases reflects the lack of clarity in the
commission’s operations, which favours political interference.

Independence

First, the legitimacy and credibility of a commission is strongly related to its independence from the
government. Although the commission is limited by legislation, these limits should not hamper the
commissions to efficiently carry out their mandate. However, the commission is dependent upon the
state government for its funds and the personnel needed to accomplish its aims. This dependency has
allowed the commission to become inefficient in protecting human rights. Therefore, the independence
of the commission is non-existent.

Jurisdiction and Adequate Power

A defined jurisdiction that clearly establishes the scope of an institution facilitates an effective function-
ing and prevents overlapping with other bodies. Although, the commission is granted with the power
to investigate into complaints on allegations of human rights violations or abetment or negligence in
the prevention of such violation, there are four restrictions limiting whether the commission can inves-
tigate a matter or not. First, it can only investigate cases involving violations, abetment, or negligence
by civil servants.2 Second, the commission may only investigate in a matter one year from its execution.3
Third, the commission cannot investigate allegations against the armed forces.4 Fourth, the commission

2. WBSHRC, ‘The PHRA, 1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.
43 of 2006, Chapter III, Section 12(a).
43 of 2006, Chapter VIII, Section 36(2)


may not investigate cases pending before another human rights commission.5 In regards to the one-year
time limitation, this allows offenders to avoid the action of the commission.
Furthermore, the commission has not fulfilled many of its functions under Section 12 of the Act.
Although the commission does investigate allegations of human rights, there are no records of any
activity aiming at monitoring and enhancing the fulfillment of international standards by domestic law
and its implementation.6 Therefore, the commission is losing an opportunity to enhance human rights
protection.
Also, Section 36 in Chapter VIII of the Act prevents the commission from inquiring into com-
plaints under investigation by other human rights commissions. The Act recognises the similarities
between the national and state commissions, however, the Act does not provide avenues or protocols to
ensure complementarity among human rights agencies. A better-defined jurisdiction or the establish-
ment of committees with representation from all commissions to discuss jurisdictional matters could
simplify overlapping related issues and help lessen the commissions’ workload.
In addition, adequate power is necessary for the commission to fulfill its goal and mission. The
commission has the capacity to make recommendations to the state government on different issues for
the protection of human rights, such as punitive actions against perpetrators of violations, granting
compensation to victims or monitoring conditions of jails.7 However, these recommendations made by
the commission to the high courts are not binding on the state. This inevitably limits the ability of com-
missions to transfer their work into real actions, and the ability of victims to see their rights fulfilled.

Accessibility

Accessibility to the commission is essential to provide a resource to victims who have suffered violations
of their human rights. An institution cannot be accessed if the citizenry do not know of its existence or
is ill-informed on its functioning. The public not being informed on the commission’s functions adds
to the amount of complaints that are filed with the commission that may not be within its jurisdiction.
This adds to the frustration of the public when they see their claims are unattended, and thus, under-
mines the commission’s credibility.
In addition, physical accessibility is a huge issue. There is only one office, which is located in
Bhabani Bhavan in Calcutta. The commission is located in an urban area, which adds to the hardship
of individuals who must give testimony or obtain advice there, in terms of transportation and costs.

Cooperation

Cooperation with NGOs working to protect and promote human rights is fundamental for the com-
mission to increase its visibility and to reach the most vulnerable population in terms of human right

43 of 2006, Chapter IV Section 19 and WBSHRC, ’The PHRA, 1993’, as amended by the Protection of Human
,
Rights (Amendment) Act, 2006 No. 43 of 2006, Chapter V Section 29.
,
43 of 2006, Chapter VIII, Section 36(1).
43 of 2006, Chapter III, Section 12(d) and (f)
7. WBSHRC, ‘The PHRA,1993’, as amended by the Protection of Human Rights (Amendment) Act, 2006 No.
43 of 2006, Chapter III, Section 12

WEST BENGAL 27

Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I

Rugged Road to Justice, A Social Audit of State Human Rights Commissions In India, Volume I

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