Aakar Patel | After NHRC loses its UN links, India might lose vote at human rights body

On May 13 this year, a headline was published which read: “UN-linked body defers NHRC-India accreditation for second year in a row”. Beneath this was the line: “The decision could now affect India’s ability to vote at the Human Rights Council and some UNGA bodies”.

NHRC stands for the National Human Rights Commission and this column is about why its accreditation was deferred. Last year, on March 9, 2023, a group of non-governmental organisations (including mine) wrote to the Global Alliance of National Human Rights Institutions (GANHRI), the UN-linked body. We told it to review India's accreditation status because the NHRC’s lack of independence, pluralism, diversity, and accountability were contrary to United Nations principles on national institutions (called “The Paris Principles”). Taking cognisance of our letter and other civil society submissions, the global body deferred the NHRC’s re-accreditation by 12 months after considering its failure to effectively discharge its mandates to respond to the escalating human rights violations in India. The NHRC was also told to improve its processes and functions, but a year later this had not happened. This is what led to the second deferral of accreditation.

So, what were the things that were contrary to the “Paris Principles”? First was a lack of independence. Both in the appointing of the NHRC's functionaries and its functioning. The chairperson and other members of the NHRC are appointed by the President, based on the recommendation of a committee consisting of the Prime Minister, the Speaker of the Lok Sabha, the minister of home affairs, the Leaders of the Opposition in the Lok Sabha and Rajya Sabha, and the deputy chairperson of the Rajya Sabha. However, since 2019, the post of the Leader of the Opposition in the Lok Sabha has been vacant, leaving only a single Opposition voice in the selection committee.

After his retirement from the Supreme Court, Justice Arun Mishra was made the NHRC chair on May 31, 2021, despite strong disagreement by the lone Opposition voice in the selection committee. The second problem was that the NHRC has police officers investigating human rights violations by the State, including by the police. This is a conflict of interest, not independence from government interference. Despite this being pointed out in the 2023 review, the Narendra Modi government did not begin a legislative process to correct it or to invite a consultation to begin it.

in November 2023, seven former IPS officers were appointed by the NHRC as special monitors. One of them, accused of corruption in 2018 while working as special director of the CBI, India’s federal investigation agency, was given the responsibility to oversee the thematic areas of terrorism, counter-insurgency, communal riots and violence. A former director of the Intelligence Bureau was made a member of the commission.

India has been repeatedly told of concerns about the lack of diversity in the NHRC, and asked to have a “pluralistic balance in its composition and staff” by ensuring the representation of a diverse Indian society including, but not limited to religious or ethnic minorities. This of course was not done in this country, where the Prime Minister rants against the minorities constantly, including in his election speeches.

Yet another issue was the NHRC’s lack of effective engagement with civil society and human rights defenders in India. Towards this end, the NHRC was asked to interpret its mandate in a “broad and purposive manner to promote a progressive definition of human rights”, and told to address all human rights violations and ensure consistent follow-up with the state authorities. This may surprise those who have bought this government's framing of the matter, where all those who oppose its violence are “anti-nationals”. However, that is not how the rest of the world views it, and proper democracies must engage with civil society.

In India, human rights defenders languish in detention for years without trial under various draconian laws, including UAPA, with not a squeal from the NHRC. This includes those detained in connection with the Bhima Koregaon-Elgar Parishad case for more than five years; Kashmiri human rights defender Khurram Parvez, who has been in detention since November 2021; and Umar Khalid. The NHRC has not taken any concrete steps to respond to the situation of the HRDs or to intervene in a timely manner despite various UN special rapporteurs calling on the Indian authorities to release these individuals. The NHRC has been next to useless on the issue of Manipur, Jammu and Kashmir, communal violence in Haryana and Uttarakhand and other ones that made the headlines. It has not covered itself in glory and the predicament it and the government now find itself in is of their own making. India holds an “A” rating currently and the deferral of reaccreditation means its “A” rating is under threat. That further means that the NHRC stands to lose its voting position in the United Nations Human Rights Council and other bodies. This can only be corrected by doing the right thing, which nobody is stopping the government from doing.

All of us, including all the signatories to that letter, want to see India accredited at the highest level on the global body. However, such an accreditation should be an honest one, reflective of a strong and independent human rights body in India committed in particular to responding to the rights violations by the State. It should not be an automatic right given to the self-appointed “mother of democracy”.