NHRC asserts ‘democratic space’ is required for proper functioning of National Institutions: 58th Session of the UN Commission on Human Rights
The NHRC was represented at the 58th Session of the UN Commission on Human Rights by Justice J.S. Verma, Chairperson and Shri Virendra Dayal, Member. They were accompanied by Smt. S. Jalaja, Joint Secretary and Shri Y.S.R. Murthy, P.S. to the Chairperson. The delegation was in Geneva from 15 – 18 April 2002 to attend a meeting of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights and for the annual consideration of the item on National Institutions by the UN Commission.
In a statement circulated on behalf of the National Human Rights Commission of India, the Chairperson expressed profound regret that, during the 58th Session of the UN Commission, extending over a period of some 6 weeks, that Commission had considered it appropriate to allocate barely one hour to hear the views and voices of National Institutions. The decision, he said, reversed the effort, extending over the past 8 years, to encourage National Institutions to participate in their own right and with a distinct status of their own, in the work of the UN Commission. In such circumstances, the NHRC had chosen to circulate in full the text of its Statement rather than take the floor.
The NHRC statement emphasized that National Institutions have a unique and individual voice. The work of each is country-specific. It is therefore unacceptable to the Indian Commission that either the International Coordinating Committee of National Institutions (which it itself chaired for some 5 years), or any regional grouping of National Institutions can or should speak for it. This position was also in keeping with the principle that National Institutions must function with complete independence, if they are to maintain their integrity. In this connection, the Indian Commission appreciated the solidarity of the other National Institutions of the Asia Pacific Region, all of whom are took a similar stand. The Fijian National Institution was requested by them to make a statement from the floor of the house, explaining this position.
Referring to the role of National Institutions, the NHRC statement asserted that they can be amongst the most powerful and sustained voices for Human Rights if they are recognized as players in their own right, and given their own space, both literally and metaphorically, to fulfill their purpose.
Just as National Institutions need the protection of their right and the space to speak in the UN Commission on human rights, so it is within their own countries and jurisdictions. There too, National Institutions need the space that the constitutional structures of democracy provide, if they are to function with real effectiveness. They do not flourish adequately outside democratic polities, however heroic their efforts may be. This is because National Institutions, to be effective, require to be constantly vigilant and outspoken in the defence of human rights, a responsibility that – not infrequently – compels them to draw attention to the performance of the State and its agents that result in the violation of human rights – whether through acts of commission, omission, abetment, or negligence. It requires the openness and freedom of a democratic polity to ensure that such criticism, which is essential to the well-being of society, is received with respect, even if not always with full agreement, and that the dialogue for the better protection of rights is sustained as an objective of all elements of the State and society. That, at least, has been the experience of a number of National Institutions, including that of India. The defence of human rights thus requires the defence of a democracy that is inclusive, and all of its institutions.
The statement added that the capacity to differ with civility and mutual respect is the hallmark of a democratic society. This is witnessed in a number of ways in the work of the National Human Rights Commission of India – even in respect of some of the most sensitive political and societal issues facing the country.
For all of the difficulties of the choices to be made, the National Human Rights Commission of India opposed the draft Prevention of Terrorism Bill, 2000 that was under consideration in our country. Further, it had opposed the Prevention of Terrorism Ordinance, 2001. The latter had, since then, been enacted into a Law on 26 March 2002, following a joint session of Parliament. The Commission respects and honours the Constitutional process leading to the adoption of this Act. It retains, however, its responsibility under its Statute, to ensure that the Act is not implemented in a manner that is violative of the Constitution and treaty obligations of our country.
The ‘democratic space’ within which the Indian Commission has functioned was vividly illustrated in another matter of considerable national debate in the past months. This related to the stance that the country should take at the World Conference in Durban in relation to Dalits, a matter of great societal and political significance. This Commission stated that it was not the ‘nomenclature’ of the form of discrimination that must engage our attention, but the fact of its persistence that must cause us concern and compel us to act. The Constitution of India, in Article 15, expressly prohibits discrimination on the grounds of both `race’ and `caste’ and that Constitutional guarantee has to be vigorously implemented. The Commission holds the view that the instruments of governance in our country, and the energetic and committed non-governmental sector of society can unitedly triumph over the historical injustices that have hurt the weakest sections of our country, particularly Dalits and Adivasis (Scheduled Tribes). In the view of the Commission, this is, above all, a national responsibility and a moral imperative that can and must be honoured.
The statement added that, in recent weeks, the Commission had been much preoccupied with events in Gujarat beginning with the Godhra tragedy and continuing with the violence that occurred subsequently. It recounted that the Preliminary Comments and Recommendations of the Commission had been made public on 1 April 2002 and that the full text of its Proceedings of that date could be seen on its website.
The statement concluded with Mahatma Gandhi’s sage words:
“The human voice can never reach the distance that is covered by the still voice of conscience.”
It added that in the din and intolerance that too often resonates in the social and political scene today, the “still voice of conscience” is the voice of human rights, and it is often best expressed in the words and actions of National Institutions. It is the voice that all must endeavour to hear above the strife, including the Members who comprise the UN Commission.
Earlier, in the 6th International Conference of National Institutions held in Copenhagen and Lund from 10 – 13 April 2002, Chairperson Justice J.S. Verma delivered the keynote speech on “Monitoring: Legal Frameworks relevant for Racial Discrimination”.
In his address, he elaborated on
The Legal Frameworks relevant to racial discrimination, and
The Role of National Institutions in monitoring respect for such legal frameworks and contributing to them; and
He illustrated his observations with comments on the situation in India and stated that
First, as with other forms of discrimination, so with racial discrimination, the nature of discrimination can be, and often is, multiple in characters.
Second, in practical terms, when performing their monitoring functions, National Institutions must be vigilant not only to the acts of racial discrimination as defined in CERD, but also to acts that might result from the other grounds of discrimination listed in the Universal Declaration and the two International Covenants on Human Rights of 1966. Further, National Institutions must constantly keep in mind the vast range of subject-specific instruments mentioned in detail in this speech, if their monitoring is to be comprehensive. In addition, National Institutions should be especially vigilant to the specific forms of discrimination particular to their own countries or societies – which may not be explicitly defined in any international instruments, but which may well be known to them or referred to in their national Constitutions or laws. In the case of India, discrimination based on `caste’ is one such example; other countries may have yet other society - specific grounds of discrimination.
Commenting on some of the specific actions that National Institutions could take to improve monitoring, the Chairperson said that first, at the most basic level, National Institutions need to urge the Governments of their respective countries to consider acceding to or ratifying the international instruments on racial discrimination and non-discrimination listed in the Durban Programme of Action.
Second, National Institutions need to monitor the manner in which the Governments of their respective States implement the treaties to which they are party.
Third, the relationship between Treaty Bodies and National Institutions is still inadequately developed. Thus, the Treaty Bodies should specifically invite National Institutions to join in discussions with them when country reports are considered. Other “special mechanisms” of the United Nations should also take similar initiatives.
Fourth, National Institutions should encourage the Governments of their respective countries to respect the International Human Rights Regime established under the auspices of the United Nations and consistently observe the discipline of the treaties to which they are States Parties, even if the comments of the Treaty Bodies are at times discomforting and at variance with the established wisdom of the Government.
Fifth, National Institutions must have the statutory competence to examine international human rights instruments and make recommendations for their effective implementation. Likewise, they must have the statutory responsibility to review proposed legislation or any law in force in their respective countries in order to ensure that these are compatible with their national Constitutions and international instruments and do, indeed, further the better protection of human rights.
Sixth, National Institutions can gain immensely in their capacity to monitor the various legal frameworks if they can act in complementarity with the senior judiciary of their respective countries.
Seventh, it also strengthens the hands of National Institutions in their monitoring function if they have the capacity to “intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court”, as can the National Human Rights Commission of India.
Eighth, proper monitoring and action by National Institutions also depends on whether or not they have the statutory capacity to receive and investigate complaints both in respect of individuals and well as situations more generally which indicate practices of discrimination; whether they can order interim measures to avert or prevent human rights violations; whether they can award interim relief to those who have suffered.
Ninth, the area that appears to need greater attention in most National Institutions if they are to strengthen their capacity, particularly in respect of analyzing and proposing legislation and keeping abreast of human rights law, relates to the improvement of research capacity.
Tenth, in the final analysis, however, it will be the readiness or otherwise of National Institutions to set about their responsibilities with courage and integrity that will determine whether or not they will contribute with purpose and effect to the fight against discrimination.
In a statement circulated on behalf of the National Human Rights Commission of India, the Chairperson expressed profound regret that, during the 58th Session of the UN Commission, extending over a period of some 6 weeks, that Commission had considered it appropriate to allocate barely one hour to hear the views and voices of National Institutions. The decision, he said, reversed the effort, extending over the past 8 years, to encourage National Institutions to participate in their own right and with a distinct status of their own, in the work of the UN Commission. In such circumstances, the NHRC had chosen to circulate in full the text of its Statement rather than take the floor.
The NHRC statement emphasized that National Institutions have a unique and individual voice. The work of each is country-specific. It is therefore unacceptable to the Indian Commission that either the International Coordinating Committee of National Institutions (which it itself chaired for some 5 years), or any regional grouping of National Institutions can or should speak for it. This position was also in keeping with the principle that National Institutions must function with complete independence, if they are to maintain their integrity. In this connection, the Indian Commission appreciated the solidarity of the other National Institutions of the Asia Pacific Region, all of whom are took a similar stand. The Fijian National Institution was requested by them to make a statement from the floor of the house, explaining this position.
Referring to the role of National Institutions, the NHRC statement asserted that they can be amongst the most powerful and sustained voices for Human Rights if they are recognized as players in their own right, and given their own space, both literally and metaphorically, to fulfill their purpose.
Just as National Institutions need the protection of their right and the space to speak in the UN Commission on human rights, so it is within their own countries and jurisdictions. There too, National Institutions need the space that the constitutional structures of democracy provide, if they are to function with real effectiveness. They do not flourish adequately outside democratic polities, however heroic their efforts may be. This is because National Institutions, to be effective, require to be constantly vigilant and outspoken in the defence of human rights, a responsibility that – not infrequently – compels them to draw attention to the performance of the State and its agents that result in the violation of human rights – whether through acts of commission, omission, abetment, or negligence. It requires the openness and freedom of a democratic polity to ensure that such criticism, which is essential to the well-being of society, is received with respect, even if not always with full agreement, and that the dialogue for the better protection of rights is sustained as an objective of all elements of the State and society. That, at least, has been the experience of a number of National Institutions, including that of India. The defence of human rights thus requires the defence of a democracy that is inclusive, and all of its institutions.
The statement added that the capacity to differ with civility and mutual respect is the hallmark of a democratic society. This is witnessed in a number of ways in the work of the National Human Rights Commission of India – even in respect of some of the most sensitive political and societal issues facing the country.
For all of the difficulties of the choices to be made, the National Human Rights Commission of India opposed the draft Prevention of Terrorism Bill, 2000 that was under consideration in our country. Further, it had opposed the Prevention of Terrorism Ordinance, 2001. The latter had, since then, been enacted into a Law on 26 March 2002, following a joint session of Parliament. The Commission respects and honours the Constitutional process leading to the adoption of this Act. It retains, however, its responsibility under its Statute, to ensure that the Act is not implemented in a manner that is violative of the Constitution and treaty obligations of our country.
The ‘democratic space’ within which the Indian Commission has functioned was vividly illustrated in another matter of considerable national debate in the past months. This related to the stance that the country should take at the World Conference in Durban in relation to Dalits, a matter of great societal and political significance. This Commission stated that it was not the ‘nomenclature’ of the form of discrimination that must engage our attention, but the fact of its persistence that must cause us concern and compel us to act. The Constitution of India, in Article 15, expressly prohibits discrimination on the grounds of both `race’ and `caste’ and that Constitutional guarantee has to be vigorously implemented. The Commission holds the view that the instruments of governance in our country, and the energetic and committed non-governmental sector of society can unitedly triumph over the historical injustices that have hurt the weakest sections of our country, particularly Dalits and Adivasis (Scheduled Tribes). In the view of the Commission, this is, above all, a national responsibility and a moral imperative that can and must be honoured.
The statement added that, in recent weeks, the Commission had been much preoccupied with events in Gujarat beginning with the Godhra tragedy and continuing with the violence that occurred subsequently. It recounted that the Preliminary Comments and Recommendations of the Commission had been made public on 1 April 2002 and that the full text of its Proceedings of that date could be seen on its website.
The statement concluded with Mahatma Gandhi’s sage words:
“The human voice can never reach the distance that is covered by the still voice of conscience.”
It added that in the din and intolerance that too often resonates in the social and political scene today, the “still voice of conscience” is the voice of human rights, and it is often best expressed in the words and actions of National Institutions. It is the voice that all must endeavour to hear above the strife, including the Members who comprise the UN Commission.
Earlier, in the 6th International Conference of National Institutions held in Copenhagen and Lund from 10 – 13 April 2002, Chairperson Justice J.S. Verma delivered the keynote speech on “Monitoring: Legal Frameworks relevant for Racial Discrimination”.
In his address, he elaborated on
The Legal Frameworks relevant to racial discrimination, and
The Role of National Institutions in monitoring respect for such legal frameworks and contributing to them; and
He illustrated his observations with comments on the situation in India and stated that
First, as with other forms of discrimination, so with racial discrimination, the nature of discrimination can be, and often is, multiple in characters.
Second, in practical terms, when performing their monitoring functions, National Institutions must be vigilant not only to the acts of racial discrimination as defined in CERD, but also to acts that might result from the other grounds of discrimination listed in the Universal Declaration and the two International Covenants on Human Rights of 1966. Further, National Institutions must constantly keep in mind the vast range of subject-specific instruments mentioned in detail in this speech, if their monitoring is to be comprehensive. In addition, National Institutions should be especially vigilant to the specific forms of discrimination particular to their own countries or societies – which may not be explicitly defined in any international instruments, but which may well be known to them or referred to in their national Constitutions or laws. In the case of India, discrimination based on `caste’ is one such example; other countries may have yet other society - specific grounds of discrimination.
Commenting on some of the specific actions that National Institutions could take to improve monitoring, the Chairperson said that first, at the most basic level, National Institutions need to urge the Governments of their respective countries to consider acceding to or ratifying the international instruments on racial discrimination and non-discrimination listed in the Durban Programme of Action.
Second, National Institutions need to monitor the manner in which the Governments of their respective States implement the treaties to which they are party.
Third, the relationship between Treaty Bodies and National Institutions is still inadequately developed. Thus, the Treaty Bodies should specifically invite National Institutions to join in discussions with them when country reports are considered. Other “special mechanisms” of the United Nations should also take similar initiatives.
Fourth, National Institutions should encourage the Governments of their respective countries to respect the International Human Rights Regime established under the auspices of the United Nations and consistently observe the discipline of the treaties to which they are States Parties, even if the comments of the Treaty Bodies are at times discomforting and at variance with the established wisdom of the Government.
Fifth, National Institutions must have the statutory competence to examine international human rights instruments and make recommendations for their effective implementation. Likewise, they must have the statutory responsibility to review proposed legislation or any law in force in their respective countries in order to ensure that these are compatible with their national Constitutions and international instruments and do, indeed, further the better protection of human rights.
Sixth, National Institutions can gain immensely in their capacity to monitor the various legal frameworks if they can act in complementarity with the senior judiciary of their respective countries.
Seventh, it also strengthens the hands of National Institutions in their monitoring function if they have the capacity to “intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court”, as can the National Human Rights Commission of India.
Eighth, proper monitoring and action by National Institutions also depends on whether or not they have the statutory capacity to receive and investigate complaints both in respect of individuals and well as situations more generally which indicate practices of discrimination; whether they can order interim measures to avert or prevent human rights violations; whether they can award interim relief to those who have suffered.
Ninth, the area that appears to need greater attention in most National Institutions if they are to strengthen their capacity, particularly in respect of analyzing and proposing legislation and keeping abreast of human rights law, relates to the improvement of research capacity.
Tenth, in the final analysis, however, it will be the readiness or otherwise of National Institutions to set about their responsibilities with courage and integrity that will determine whether or not they will contribute with purpose and effect to the fight against discrimination.