Understanding deferral of global recognition to India's human rights watchdog

The deferral placed the spotlight squarely on the country's human rights watchdog, as it indicated it was out of sync with international norms, better known as the Paris Principles.
Understanding deferral of global recognition to India's human rights 
watchdog

The apex certification body of all National Human Rights Institutions (NHRIs) recently deferred its re-accreditation to the National Human Rights Commission (NHRC) in India for the second year in a row.

The deferral placed the spotlight squarely on the country's human rights watchdog, as it indicated it was out of sync with international norms, better known as the Paris Principles.

The Global Alliance of National Human Rights Institutions (GANHRI) takes the accreditation call through a sub-committee. Of the 120 member NHRIs in the GANHRI, 88 have 'A' status of accreditation as they are fully compliant with the Paris Principles, while 32 others are in 'B', as they are rated as partially compliant. Countries where the situation is worse than ‘B’ are not assigned any status. Those in the 'A' bracket are subjected to reassessment every five years.

GANHRI was established in 1993 as the International Coordinating Committee of national institutions for the promotion and protection of human rights. It was renamed GANHRI in 2016. The global body has a mechanism for appealing against its rating so as to promote transparency and due process. It aims to make its recommendations more focused and widely disseminates them for remedial action by NHRIs.

India got its 'A' status for the first time in 1999 and retained it in 2006 and 2011. During the 2016 review, the country's case was deferred to the second session of 2017, after which it retained 'A'. It's the subsequent review that is hanging fire. The NHRC would have lost further face had the sub-committee on accreditation (SCA) downgraded it to 'B'.

For accreditation, all NHRIs must have a legislative or constitutional basis; a broad mandate to promote and protect human rights; independence from government and other actors; promote pluralism, including through membership, staff and/or effective cooperation; transparent appointment, dismissal and security of tenure for members; adequate resources, including human and financial; robust powers of investigation; cooperation with national and international actors, including civil society; and accountability, in particular through annual reporting. The evaluation for accreditation is peer-reviewed by the SCA that comprises representatives from Africa, Americas, Asia Pacific and Europe.

Amnesty intervention

On March 9 last year, Amnesty International wrote to the GANHRI on behalf of seven organisations suggesting a review of the NHRC's accreditation at the SCA's 2024 meeting, alleging it was not functioning in accordance with the Paris Principles. Amnesty recalled that the NHRC had in 2017 assured that it would make changes to its enabling law and take steps to enhance its effectiveness and independence, so as to align itself with the recommendations made by the SCA during its review. That was how it was granted ‘A' status. Instead of improving, the situation further regressed, Amnesty complained.

“We strongly believe the National Human Rights Commission of India’s current ‘A’ rating is inappropriate under the circumstances,” Amnesty charged.

Importance of accreditation

NHRIs with ‘A’ status have specific participation rights in international and regional mechanisms, including speaking rights in the UN Human Rights Council and before UN treaty bodies. They also get to act as interlocutors for multilateral mechanisms. Besides, they have voting rights and can hold governance positions in NHRI networks. As for the NHRIs with ‘B' status, they can participate in GANHRI meetings but can't vote or hold governance positions.

Deferral

While the GANHRI’s latest report on the NHRC is awaited, deferral means its existing rating of ‘A' will continue till specified otherwise. As per the rules, if the SCA decides to defer an application instead of making a decision on the NHRI status, it cannot be challenged. However, NHRIs too can request a deferral of their re-accreditation. "In this case, the written justifications provided by the NHRI are reviewed, and a deferral can be granted for a limited period, where the request is considered to be reasonable. During that time, the accreditation status of the NHRI is maintained," according to the European Network of NHRIs.

2023 report

In its report last year, the GANHRI had cited several reasons for recommending the deferral for the NHRC, including the lack of transparency in appointing members to it, appointment of police officers to oversee human rights investigations, and the lack of gender and minority representation on the panel. It also observed that the NHRC has failed to create the conditions required to be “able to operate independent of government interference”.

“The SCA received a third-party submission indicating that the relationship between the NHRC and civil society is not effective or constructive, particularly with respect to collaboration through its core group on non-government organisations and human rights defenders," the earlier report read. The SCA also raised concerns about the lack of diversity and recommended a “pluralistic balance in its composition and staff” through representation of a cross-section of the society, including religious or ethnic minorities.

To rebut criticism of its lack of engagement with the civil society, the NHRC last year re-constituted the core group on NGOs and human rights organisations. But it failed to take note of the deliberate and sustained targeting of religious minorities and human rights defenders through broad and vague laws and policies, leading to hate crimes against Muslims, Christians and Dalits, Amnesty argued.

Origin of NHRC

The NHRC was set up by an Act of Parliament under the Protection of Human Rights Act, 1993. Till a few years ago, the NHRC had the distinction of having a former Chief Justice of India as its chairperson. In 2019, the Protection of Human Rights Act was amended to open the position of the NHRC head to any retired judge of the Supreme Court. That's how Arun Kumar Mishra, a former judge of the Supreme Court, became its chairperson. Justice M M Kumar, Dr D M Mulay and Rajiv Jain are the other members of the commission.

Mishra’s appointment drew trenchant criticism, as he had once made laudatory references to Prime Minister Narendara Modi when he was a Supreme Court judge. It led to questions on the independence of the NHRC, which Amnesty flagged in its letter. Besides, Rajiv Jain is an Indian Police Service officer of the 1980 batch and former director of the national Intelligence Bureau, which was among the negatives cited by Amnesty.

Human rights activist and Supreme Court advocate Colin Gonsalves lit into the NHRC saying its performance is pathetic. “This body covers up for the Central government all the human rights crimes committed in the country. It acts like the puppet of the Centre. Now, in India, we have no remedy. Even the Supreme Court is not active in

human rights issues,” he said. The only remedy therefore is to go to the main body, which is the international GANHRI. “By not giving them accreditation for the second year, the NHRC has brought disgrace to India," said Gonsalves.

Accreditation process

  • NHRIs without status or with B status write to the SCA Secretariat asking for accreditation. Upon invitation by the SCA Secretariat, NHRI submits documentation

  • NHRIs with ‘A’ status invited by SCA Secretariat to submit documentation for review every 5 years

  • SCA Secretariat summarises information received from NHRI and shares the summary and information received from third parties with NHRI under review for response

  • SCA meets to review the NHRI application and organises a teleconference with the NHRI under review to seek clarification on any outstanding issues

  • SCA shares recommendations with the applicant NHRI. The NHRI has 28 days to challenge the report of the SCA

  • The GANHRI Bureau decides on the accreditation status and the SCA report is made public

  • NHRI acts to address the SCA recommendations

Key players

  • Sub-Committee on Accreditation (SCA): Panel for peer review on accreditation consists of one A-status institution from each of the GANHRI regional groupings - Africa, Americas, Asia Pacific and Europe

  • SCA Secretariat: UN Office of the High Commissioner for Human Rights serves as the Secretariat

  • GANHRI and regional representatives: One representative from GANHRI and each regional network assist the SCA in understanding UN and regional contexts and clarify procedural matters. They do not take part in decision-making. They assist NHRIs undergoing review

  • Third parties (civil society organisations): Provide information to SCA such as on the NHRI’s compliance with Paris Principles. This information is shared with the NHRI before its review

Source: European Network of NHRIs

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