A Decade of NHRC: Too Late Too Little

The National Human Rights Commission (NHRC) is passing almost a decade of its journey towards protection of human rights in the country. However, the realities on the ground have been far below than expected. 

In a recent judgment the High Court Division expressed its deep concern that NHRC is sleeping over its duties keeping its eyes open and further that NHRC is not discharging its duties under the law. 

An eyeballing of the NHRC website will show all the hyped up words and phrases that one wants to read or hear about what the commission is up to. Even the 2009 NHRC Act mandates the commission to serve: (a) as the major human rights watchdog, monitoring implementation of state obligations to respect protection and the fulfillment of the rights of every single member of society; (b) address specific human rights complaints through inquiry, investigation, mediation and conciliation, and where necessary, through constitutional litigation, and more broadly through raising public awareness. 

The lofty idealism in the website does not miss any words to present NHRC as reassuring to fight against human rights violations (HRV) rights as possible having no touch with reality. 

The Commission has, since its inception, been avowedly stated that it lacks power under the law. One may argue that the commission might need to be strengthened with more statuary powers. But the people may legitimately question- how much of the statuary power already given to the commission have so far been used? 

It is true that NHRC is not a court but its activism under the law can prove itself more powerful than the court. The Commission cannot punish anyone but it has power to bring punishment and compensation for violation of human rights and this power of recommending for compensation is such a tool that it can compel all state agencies to be accountable to people. 

To be noted that the NHRC India has, in last 30 years, recommended for compensation of around Rs. 150 crore for 9,220 incidents of human rights violations and has ensured the payment of this staggering amount. Only in September, 2020 the NHRC India recommended for compensation of Rs. 45,25,000; Rs. 44,50,000 in August; Rs. 75,50,000 in July. 

Very unfortunately, in its 11 years of life span NHRC, which enjoys more statutory powers compared to its Indian counterpart, has rarely recommended for any compensation for gross violation of HRVs. Regrettably and very recently it has recommended for Tk. 50,000 as compensation to be awarded to a domestic torture victim named Khadija and its compliance has still not been made by the Home Ministry. 

Question may arise- what makes NHRC to remain silent on repeated incidents of gross violations of human rights in the country? The recent judgment delivered by the High Court in Khadija torture case and also the full Bench hearing and resultant judgment by NHRC is self-evident of its immaturity of understanding the importance of human rights and their enforcement. 

From the judgment given in CCB Foundation vs. State, it seems the NHRC is still unaware of the proper definition of "human rights" as given in section 2(Cha) of the Act. Secondly, when the minority judgment repeatedly speaks about non-filing of criminal case against the incident of Khadija torture, it leaves no doubt that NHRC members have lack of understanding the difference between crime and human rights violations. It is a settled principle of human rights jurisprudence that a violation of human rights has little or nothing to do with a crime. 

Apparently, section 18 of the NHRC Act may give an impression that the Commission has no other power but seeking for reports from authorities and the NHRC from the very beginning has been complaining that the Act has not given the Commission any fruitful power. This statement seems wrong. 

First, the provisions of section 18 are identical with those of section 19 of the Indian NHRC Act. To be noted that the words "if the Commission is satisfied" is absent in the Indian Act although the Bangladeshi Parliament has used the words in the Act and as such these words give more power to NHRC compared to its Indian counterpart regarding violation of human rights by disciplined forces.

Second, construing the provisions of sub-sections 18(1), 18(2), 18(3), 18(4) and 18(5) with other provisions and preamble will give clear idea that in recommending for compensation the power of the Commission is not limited in any manner as it has not been found limited to the Indian counterpart:

1. Section 18(2) states that when the Commission receives any complaint of violation of human rights (HRVs) by any member of disciplined force, it can seek report from the concerned authority and the authority

2. If the Commission does not receive any report within time, it is not powerless because in such a case it can treat non-submission of report as non-satisfaction of the Commission and the Commission can send show cause notice to the concerned Ministry or disciplined force as to why such and such amount of compensation shall not be awarded to the victim of HRVs.

3. Sub-section 18(3)(a) specifies that if the Commission is satisfied with the report then it will not take any further step. However, what will happen when the Commission is not satisfied with the report? This is not mentioned in the law and this is where the real power of the Commission lies.

4. The phrase "If the Commission is satisfied" has doctrinal interpretation. If a report by disciplined force is not appended with the facts and documents, how will the Commission be satisfied that the disciplined force has not kept some facts undisclosed? The powerful weapon of protecting human rights remains within the strategy of "seeking report",  "examining report" and then being satisfied with that "report" from Government. However, unfortunately the Commission has not been able to develop any experience in 'seeking' and 'examining reports' so far.

5. The way the Commission deals with the complaints of human rights violation is questionable. It has not even framed rules on how to deal with complaints even though the apex court has issue rule in this regard back in 2013. 

It is pertinent to mention here two Indian incidents of violation of human rights activism of NHRC, India:

First, in 2000, the Commission received a complaint that BSF killed two people by shooting. NHRC asked for reports from Indian Home Ministry. Ministry gave report but NHRC not being satisfied with the report issued show cause notice as to why compensation of Rs. 2,00,000 should not be paid to the victims. 

Both the Ministry of Home and BSF challenged this power of the Commission. The Commission set a date for hearing and BSF Head and the Secretary of Home Ministry were asked to appear before hearing. Both the Home Ministry and BSF Head argued that section 19 of the Act (equivalent to section 18 in Bangladesh) did not empower the Commission to award compensation. 

However, NHRC contended that once the government or authority sends report and there is indication of human rights violation in it, the power of NHRC in awarding compensation would not be barred by section 19. Commission further explained that the power given in sub-section 19(1)(b) [section 18(3)(b) in Bangladesh] is very wide and this power includes the power to award compensation to victims. Both the Home Ministry and BSF accepted the explanation of the NHRC and eventually paid compensation of Rs. 2,00,000 to the victims. The most recent of such example is the order for compensation of Rs. 5,00,000.00 to the family of Felani who was killed by BSF.

Secondly, the doctrine of Res ipsa loquitor (where the incident itself describes the facts) is a recognised and often-used tool for awarding compensation in tort cases. Using this doctrine the NHRC India took a revolutionary step in taking cognizance of Guzrat riot as gross violation of human rights in 2000 on a suo motu basis.

Incidents of gross HRVs by law enforcers, elected representatives, student wings of political parties, public companies, corporations, slum evictions and so on are pouring in on a daily and hourly basis. 

How many, if any, of these cases the Commission have taken up for action? Although a decade has passed, NHRC is yet to institutionalise its statutory obligations and mandates in line with growing jurisprudence around the globe.

The author is a lawyer. He may be reached at [email protected]

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.