• PHRA Amendment 2019 – A Critical Analysis

    Henri Tiphagne & Mathew Jacob

    July 30, 2019


    The All India Network of NGOs and Individuals working with national and state human rights institutions (AiNNI) has submitted a memorandum to all Members of Parliament expressing concerns over the amendments to the Protection of Human Rights Act, 1993 (PHRA), passed in the Lok Sabha on July 19, 2019.

    The Bangkok-based Asian NGO Network on NHRIs (ANNI) has also released its international mission report to India, examining the independence and functioning of the National Human Rights Commission (NHRC), including its analysis of the recent amendments.

    The NHRC is an ‘A’ accredited commission with direct access to several international human rights forums and mechanisms such as the Human Rights Council and the UN General Assembly important for the Indian government.

    This ‘A’ accreditation was in limbo between 2016-2017, until the NHRC assured the Sub-Committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI) in November 2017 that there would be amendments to the PHRA to ensure NHRC’s complete compliance with the Paris Principles.

    The GANHRI made exceptions to its working procedures and gifted the NHRC an ‘A’ accreditation on its 25thanniversary. According to GANHRI’s own record, no commission was granted an ‘A’ accreditation based on commitments and proposals. Probably, too much was at stake for the NHRC and Indian government.

    Weakening NHRC’s credibility

    Much of NHRCs credibility lies in the fact that it is led by a former Chief Justice of India (CJI). This clause is now proposed to be amended to “broaden” the scope of the NHRC to allow a former judge of the Supreme Court to be in the running for the top post in the human rights body. This will only allow the appointment committee to handpick the most ‘favourable’ judge to head the NHRC which is a matter of grave concern.

    If the NHRC needs to be headed by a judge of the Supreme Court, in the interest of the institution, it is desirable that it is the CJI, hence restricting the government’s influence on the NHRC and the judiciary.

    Justice J S Verma opposed a similar amendment with this provision that was proposed in 2006 and the provision was thereafter withdrawn when the bill came to the Raja Sabha. The same has now been re-introduced and passed in the Lok Sabha.

    In light of GANHRI’s 2011,2016 and 2017 recommendations, and given that quasi-judicial function is only one out of the ten functions laid out in Section 12 of the PHRA, it is important to debate if a judicial appointee is best suited to lead the apex human rights body.

    Lack of diversity

    The proposed amendment states to increase the number of non-judicial members from two to three, with one being a woman. GANHRI recommendations on the need for diversity and pluralism in the NHRC and requirements as per the Paris Principles, seem to have been answered here with a tokenism.

    In its 25 years, the NHRC has had just three women as members and none as its chairperson. In the current setup, if the government is serious with its intentions, it should have proposed that half of its commissioners are women. Further, the amendments are silent about the representation of commissioners from Scheduled Castes, Scheduled Tribes, religious and ethnic minorities communities.

    For a country with over 1.3 billion population, the apex human rights body cannot be left in the control of five or six commissioners representing the majority socio-economic-cultural groups. The number of commissioners needs to significantly increase to ensure that they can respond to the large volume of complaints and allow representation from diverse groups. After all, these are the communities that need an effective NHRC the most.

    Shorter terms mean greater government interference

    Shortening the term of commissioners from five to three years is another change that has not been well thought through. A judicial member is appointed after retirement, after 65 years in case of a chairperson and a judicial member and 62 years in case of another judicial member, with the cap of 70 years as retirement.

    A three-year term, eligible for reappointment, would practically mean a shorter second tenure. Shorter tenures of commissioners create a larger room for government interference to replace commissioners who fail to toe the government line.

    No roar

    The proposed amendments fail to answer concerns about the independence, autonomy, pluralism and functioning of the NHRC. The transformation from a “toothless” to a “roaring” commission is misleading. For it to bite, there must be a change in the composition of the appointing committee. This was what was highlighted by the Subcommittee of Accreditation in its various reports.

    Section 4 of the PHRA provides for a six-member appointment committee guaranteeing at least two seats to opposition party leaders, one from the Lok Sabha and the other from the Rajya Sabha. The three guaranteed members are from the ruling coalition – the Prime Minister, Home Minister and the Speaker of the House. The remaining member – Deputy Chair of the Rajya Sabha – may or may not belong to the ruling party.

    In short, the composition of the appointment committee would be in the ratio of 4:2 in most cases, 3:3 in rare cases or 5:1 as experienced in the past five years with the absence of a Leader of Opposition in the Lok Sabha. As long as the government’s representation in the appointment committee is in the majority, no reform or amendment can sufficiently address the concerns with the NHRC.

    Need for public debate

    Both the NHRC and government should provide an opportunity for people to submit comments. The NHRC has not commented on the proposed amendments. NHRC’s recommendations on the PHRA amendments are not in the public domain. Concerns on the proposed amendments have been raised by the opposition in the Lok Sabha. It is imperative that the NHRC submits publicly its position on these proposed amendments. As this will now be tabled in the Rajya Sabha, it should permit time for greater public debate on the amendments.

    The Bill urgently needs to be referred to a Standing Committee of the Parliament to obtain wider views on the subject and be closely studied in the light of the SCA recommendations as well as the communication of the UN High Commissioner for Human Rights to the Government of India last year. Will our parliamentarians in the Rajya Sabha rise to the occasion across party lines? Compromising with the NHRC means allowing over 169 similar institutions at the national and state level to be totally decimated in this country.


     

    Henri Tiphagne is Madurai-based advocate and Honorary National Working Secretary of AiNNI. Mathew Jacob is the National Coordinator of AiNNI.

    First published in The Leaflet.

    Donate to the Indian Writers' Forum, a public trust that belongs to all of us.