I am extremely happy to inform you that my journalist colleague Yogesh Joshi, Associate Editor of The Hindustan Times, based in Pune, has been awarded the Degree of Philosophy as per the details below:
Hearty Congratulations: Kiran Thakur
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Sant Gadge Baba Amravati University
SUMMARY
of the thesis for degree of Doctor of Philosophy for subject Political Science in the faculty of Social Sciences
for research topic
Critical Evaluation of Functioning Of
Maharashtra State Human Rights Commission (2001-2011)
by
Researcher
Yogesh Madhukar Joshi
Under the supervision of
Dr. Shailendra K Deolankar
Date on which PhD degree awarded: October 30, 2016
--
Critical Evaluation of Functioning of
Maharashtra State Human Rights Commission (2001-2011)
Introduction
Every human being, irrespective of race, religion, region, gender, nationality, is inherently entitled to basic rights. These rights seek to ensure not just the survival of every member of the society but also insist for a civilized life that provides fundamental freedom and security. The progress of the society is possible only when the state and the citizenry are mindful of human rights, which in turn advocate peace and protection to the mankind. Human rights are universal and every human being is equally entitled to them without any discrimination. Human rights find place in both – national and international – laws either as natural rights or legal rights. The process of accepting Natural rights as legal rights began during eighteenth century following the idea of natural law started taking shape. Subsequently the legal rights found place in the constitutions of nations.
Indian law - the Protection of Human Rights Act, 1993 - defines human rights as “the rights relating to life, liberty, equality and dignity of the individual guaranteed under the constitution or embodied in the international covenants and enforceable by courts in India.” At the core of human rights concept are the bare necessities that mankind is entitled to while living a civilized life. There shall be no exemption or derogation from the basic necessities, rather perceived as “sacrosanct rights”, in an enlightened civilization. However during the period of emergency, state has powers to suspend certain rights although at no point it should involve into any type of discrimination on the ground of race, religion, gender and language. The broad categorization of human rights can be civil, political, economic, social and cultural rights even as all of them are indivisible interrelated and interdependent. Any violation of one right adversely results into deprivation of other rights. Similarly, enhancing one right enhance the process of advancement of the other rights.
Numerous treaties, conventions and resolutions among States with the provision of legal binding intended to safeguard human rights have been introduced through international law. The international human rights law finds inspiration through the principle of universalism of human rights, the concept of which was not in existence during the medieval era but took shape post second world war. On December 10, 1948, the United Nations General Assembly adopted ‘Universal Declaration of Human Rights’ (UDHR). The declaration spells out among other issues the fundamental civil, political, economic, social and cultural rights that every person of every state should enjoy. The UDHR has been reiterated at different international conventions on human rights. One of the basic principles of international human rights laws are non-discrimination; The Universal Declaration of Human Rights (article 1) underline this principle by stating that “All human beings are born free and equal in dignity and rights.” Many states having witnessed the large-scale violence and the atrocities during the Second World War desired for peace and sought protection through human rights. The idea for a Declaration on human rights immediately found support among the international community. Thus at a convention in Paris, the Declaration was accepted, making it a first major achievement of United Nation following its formation. Apart from United Nations and individual states, many non-governmental organisations such as Amnesty International, Human Rights Watch and International Service for human rights work towards the monitoring, protection and promotion of human rights. However despite many organisations working for protecting human rights, violations continue to occur in various parts of the world. The annual report (2010) submitted by United Nations High Commissioner for Human Rights suggest that violation of human rights has been witnessed in many countries. While the list of some countries involved in human rights Abuse includes Colombia, Democratic Republic of Congo, Nepal, Afghanistan, Bolivia and Sierra Leone, the discrimination on the basis of race is the cause for atrocities against ethnic minorities.
From the ghastly practice of sati and child marriages, both of which were abolished under British Raj, to atrocities against minority community, fresh cases of malnutrition and the sex crimes against women, India has a long history of human rights violations. India does not have an encouraging record on freedom index either, although its Constitution has covered fundamental rights that guarantee various freedoms to the people of India. One of the fundamental rights covered under the constitution is right to freedom that guarantees six freedoms that chiefly include freedom of speech and expression.
Numerous communal riots in different parts of the country raise questions over India’s secular image even as the free and fair Judiciary through its frequent interventions has reposed the faith of law in the minds of people. The fast spreading violence carried out by left-wing extremist, rather known as naxals, is another area of challenge in the field of Human Rights in India. Government’s efforts to take fruits of development to the naxal-infested backward areas of India make human rights there even more parlous especially in absence of rule of law. The diverse nature of the country identified through variety in its ethnicity, language, culture, economic background and burgeoning population makes human rights issue more vital in India. Amidst this diversity and the numerous challenges that country has had to deal with in its journey towards development by democratic means, protecting human rights remains a challenge. On the whole though, India has never been regarded as concern in the field of human rights, according to United States Library of Congress. This is even significant given the fact that almost all the neighboring states of India, which includes Pakistan, Sri Lanka, Afghanistan and Myanmar, have been grappling with issues of human rights. The contradictory view comes from another 2010 report by Human Rights Watch. The report said India had significant human rights problems, some of them ranging from lack of accountability for security forces and police brutalities. Most complaints that India’s National Human Rights Commission (NHRC) has received since its inception in 1993 have been against the police department. Nature of these complaints, according to NHRC (source – NHRC website), includes failure to act against culprits, unlawful detention, false implication, custodial violence, illegal arrests, custodial deaths and fake encounters. Other major complaints include child marriage, communal violence, and sexual and other crimes against women. In its Universal Periodic Review submitted to UN Council of Human Rights, the NHRC said, number of complaints that NHRC annually receive against police stands at 35 % while complaints against public servants for inaction in 2010-11 stood up to 9 %. These natures of complaints broadly provide the idea of nature of Human Rights violations in the country.
Owing to changing global scenario, India enacted a law to protect human rights. The Protection of Human Rights Act, 1993, is India’s expression in its concerns to promote and protect the fundamental rights of its citizens. Under the Protection of Human Rights Act, 1993, India constituted National Human Rights Commission (NHRC) in October 1993. The same Act also enabled states to constitute State Human Rights Commission and the Human Rights Courts across the country to dispose cases of human rights violation. The Act applies to the whole of India provided that its implementation in the state of Jammu and Kashmir is subject to matters covered under seventh schedule of the Constitution as applicable to that state. The Act empowers the NHRC to accept complaints as well as suo motu take cognizance of the cases involving human rights violation or negligence on the part of state authorities or public servants. The NHRC has powers under Protection of Human Rights Act as equivalent to civil court to inquire into the case and conduct trial on the basis of petition submitted to it.
The Protection of Human Rights Act, 1993 empowers states in India to constitute a body to be called as State Human Rights Commission with the name of the state prefixed with it. Since enactment of the Human Right law in 1993, as many as 23 states have constituted State Human Rights Commission besides a national body called National Human Rights Commission. The Maharashtra States Human Rights Commission (MSHRC), a statutory autonomous body was established on March 6, 2001 with its headquarter in the state capital Mumbai, with the aim of administering the Protection of Human Rights Act, 1993 in order to promote and protect human rights in the state. By way of information, education and publicity the MSHRC promote, protect and enforce the human rights. During the period 2001 to 2011, the MSHRC has received 45769 cases. Among the initiatives that MSHRC has taken over the years include workshops for Police officials and Tehesildars in order to sensitize them towards a humane approach while dealing with various matters including actions and arrests. The MSHRC has conducted various seminars for creating awareness towards Human Rights.
Objectives of the Study:
1. To understand structure and functioning of Maharashtra State Human Rights Commission (MSHRC)
2. To understand authority and powers of MSHRC
3. To evaluate issues handled and decision taken by MSHRC
4. To understand various initiatives of MSHRC in last one decade for the promotion and protection of human rights.
5. To review various recommendations of MSHRC
6. To assess the performance of MSHRC
7. To evaluate the interface between MSHRC and Maharashtra Government.
8. To propose recommendations and amendments in the Protection of Human rights Act, 1993 to strengthen MSHRC.
Significance and rationale of the study:
Human rights have become global issue and there is an increasing sensitivity towards the promotion and protection of Human rights. While awareness of Human Rights is increasing across the world, international agencies such as the United Nations, Amnesty International have become global watchdog to monitor Human Rights violations. India in its quest to become global power has taken many initiatives to safeguard and uphold Human Rights. One of the prominent steps India has taken was enacting the Protection of Human Rights Act thereby constituting the National and State Human Rights Commissions across India. The Maharashtra State Human Rights Commission (MSHRC), established in 2001 under Protection of Human rights Act, 1993, has completed more than 10 years of its existence. It was a high time to evaluate the performance of MSHRC and give suggestions for improving its performance. The Protection of Human rights Act, 1993 has completed two decades in 2013 and the success of this act has also been evaluated.
Methodology:
The formatting style of the doctoral level thesis prescribed by Sant Gadge Baba Amravati University was followed while conducting this research and writing the thesis. Methodology of this research work was predominantly subjective analytical, theoretical and interpretational based on the review of primary and secondary sources. The research was based on both historical and comparative method. The comprehensive approach methodology was employed in data collection and their logical interpretation. Necessary technique of maintaining accuracy in the interpretation of information was taken care of. The entire process of collection of data was diverse as well as extensive. The data was obtained through both manual and technological sources through the application of various techniques and methods. To keep verifiability of the work open to any researcher the appropriate methods of citations and footnoting have been followed.
Review of Literature:
Primary sources –
Some of the primary data required to conduct research was available on the Annual reports published by Maharashtra State Human Rights Commission (MSHRC). Additional information in the form of statistics was also available on the websites of National Human Rights Commission (NHRC) and MSHRC. These two websites http://nhrc.nic.in/nhrc.asp and http://www.mshrc.gov.in/ respectively have statistics pertaining to the pending cases and the disposed ones. Recommendations and orders issued by MSHRC were available on its website and in Annual Reports published by the Commission. This was referred for doctoral thesis. Information pertaining to various initiatives taken by MSHRC for the promotion and protection of Human Rights and the progress report of the Commission was also available on the website and Annual Report, which were referred while carrying out research. International agencies such as United Nations (UN) and Amnesty international also have their own websites http://www.un.org/en/rights/ and http://www.amnesty.org/. The two websites have multiple data related to status reports of prevailing Human Rights conditions in various countries as well as provisions in the international declarations and covenants. All this information was used during the course of research.
Secondary sources –
Various newspaper and magazine articles from English and Marathi periodicals having news reports on Human Rights conditions along with books on Human Rights were referred during the research. A book by Charles Norchi, “Human Rights: A Global Common Interest” throw light on Human Rights are in the interest of entire world for prosperity and maintaining peace. In another book “Human Rights: UN Initiatives” author Rahul Rai discusses steps taken by United Nations to promote Human Rights in various countries which are its members. The United Nations General Assembly adopted ‘Universal Declaration of Human Rights’ (UDHR). The declaration spells out among other issues the fundamental civil, political, economic, social and cultural rights that every person of every state should enjoy. For the theory and concept of human rights, Brian Orend’s book Human Rights: Concept and Context was referred. In his book National Human Rights Commission of India, Arun Ray provides and background and context in which the government of India enacted the Protection of Human Rights Act which provided statute to National and State Human Rights Commissions in India. The author has also reviewed Commissions of other counties. Ashish Kumar Das and Prasanta Kumar Mohanty in their book Human rights in India discuss in threadbare the theories of human rights.
In a Chapter on United Nations, Human Rights, And Humanitarian Affairs: The Theory by Thomas Weiss, David Forsythe and Roger Coate writes in the book “The United Nations and Changing World Politics” about international relations with the perspective on Human Rights. Umesh Kadam in the journal World Focus writes Nuremberg Trial Revisited to discuss Human Rights conditions having background of post World war II Nuremberg trials of Germany’s war criminals. Another essay appeared in the journal World Focus by Manoj Kumar Sinha with the title “International Criminal Court: A Background” focuses on various atrocities being committed across the globe and the role of international criminal court in dealing with such cases. Shailendra Deolankar in his research paper on the topic International Criminal Court: New Dawn for International Justice appeared in journal of Institute of Human Rights inception of International Criminal Court to provide justice in matters of international crimes. The article discuss Court taking up cases of genocide, crimes against humanity, war crimes and the crimes of aggression is a fresh beginning to provide justice against human rights violations across the world. All this information was crucial while writing the thesis and conducting the research.
Hypotheses:
1. The MSHRC has been partially successful in performing its duties.
2. The commission has performed both judicial and investigative functions.
3. The MSHRC has been successful to a great extent in creating awareness and sensitize people on Human Rights in the state.
4. Some of their recommendations have been accepted by the state government.
5. MSHRC has taken numerous academic initiatives in promotion and protection of Human Rights.
Summary of chapters:
The thesis titled “Critical Evaluation of Functioning of Maharashtra State Human Rights Commission (2001-2011)" critically examines the performance of Maharashtra State Human Rights Commission and proposes certain recommendations to improve the functioning of the Commission in order to protect and promote human rights in the state of Maharashtra. Divided in six chapters, the thesis attempts to touch upon broad aspects of human rights, starting from the theoretical premise on which human rights are based; how the rights evolved in the international and Indian context; the structure, powers and functioning of the Maharashtra State Human Rights Commission; the cases handled by Maharashtra State Human Rights Commission and recommendations made on them and the concluding chapter that attempts to evaluates the performance of the Maharashtra State Human Rights Commission.
Chapter I - Theories and Concept of Human Rights
The first chapter of the thesis titled "Theories and Concept of Human Rights", attempts to summarize the premise on which rights are based. The chapter begins by explaining in detail what the human rights mean, the source and the origin of human rights. As summarized in the chapter, human rights as a phenomenon can be traced back to ancient times where they were developed from the idea of natural rights. Social thinkers have put different theories forward to substantiate the point that how human rights have become an element of social expectations. The first chapter has covered different theoretical approaches to explain human rights. The chapter elaborately dwells on it, further explaining that who really posses the human rights given that there are different takes on the issue. While every individual by virtue of being human is entitled for human rights, any simple assertion that every human hold all human rights is be too simplistic to determine the identity of human rights-holder, stresses the researcher in the chapter.
In the later part, the chapter provides overview of three generations of human rights. Human rights of first generation are primarily those designed to protect the individuals against the interference of state while second generation rights are associated with economic, social and cultural inequalities and require that the state should act to ensure this equality to the people. The third generation human rights are distinct from the first and second generation rights. The realization of the third generation rights dependent on the behavior of each individual besides the affirmative and negative duties of the state. The chapter further explains human rights from different ideological perspectives to underline how different ideologies prioritize rights.
Chapter II - Evolution of Human Rights in International Context
As the title suggests, the second chapter summarizes progress of human rights at international level and dwells on international community joined hands in adopting various resolutions to protect human rights. The researcher stresses that human rights rode on the process of internationalization early 19th century although it received real push only at the end of world war II, especially on the backdrop of massive destruction that the world witnessed. At the beginning, the chapter touches upon how former US president Woodrow Wilson's 14 points became the premise of peace program. Setting up of International Labour Organisation (ILO) was yet another step in putting breaks on workers exploitation, a form of human rights abuse. The second chapter cites ILO preamble to elucidate that the main thrust of the ILO was to stop exploitation of the labour class among the industrialized nations of that time.
The chapter provides overview of how the formation of United Nation spurred the process of internationalization of human rights. The article 1 of UN charter, as reproduced in the chapter, states that: "The purpose of UN is to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." The researcher has cited this article to underline the significance of human rights for the global body.
The second chapter further provides a detailed account of what prompted UN to adopt International Bill of Rights that includes Universal Declaration of Human Right, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. The chapter explains how the Universal Declaration of Human Rights became one of the significant milestones in internationalization of human rights. By adopting the Declaration, the United Nations made its first move towards formally codifying the human rights at international level, thus clearing grey areas on the issue among the international community. One of the lacuna though was the Declaration wasn't legally binding on member-states. To make human rights legally binding various international covenants were signed. The chapter provides overview of these covenants, which are a part of International Bill of Rights.
Chapter III - Evolution of Human Rights in Indian Context:
The first two chapters were focused on the concept of human rights and their evolution at international level. The subsequent chapters of the thesis are about the human rights in India and the mechanism to protect these rights in the country and in the state of Maharashtra. Speaking about the third chapter, titled as "Evolution of Human Rights in Indian Context", the focus has been on the progress of human rights in India, especially about the Constitution of India providing protection to the these rights. The chapter begins with the background on need for inclusion of human rights in the Constitution of India. The chapter dwells on how the concerns that were expressed during the freedom struggle reflected through the Constitution in the form of fundamental rights and directive principles. The chapter cites preamble to underline the point that it epitomizes aspirations of Indians and the philosophy of underlying basic principles of the people of India.
While the Constitution of India has referred human rights as fundamental rights, the chapter attempt to answer what these fundamental rights are; why are they essential and what were the challenges faced by drafting committee led by BR Ambedkar while including fundamental rights in the Constitution. The chapter dissects each article covered under part III of the Constitution, which is about fundamental rights. In the subsequent part, the chapter explains how directive principles mentioned in the Indian Constitution act as a guiding principles in the attempt to safeguard human rights. While the Constitution of India has enough provisions to protect and promote human rights, there are practical difficulties in the implementation of human right. The chapter lists out these obstacles. While many countries have effectively used human rights as a tool to pursue their diplomatic goals, the chapter attempts to answer the role of human rights in India's foreign policy. Finally, the chapter summarizes India's role in Human Rights Council, which is the second most important arm of United Nations after the Security Council.
Chapter IV - Maharashtra State Human Rights Commission: Structure, Powers and Functioning
The fourth chapter of the thesis titled "Maharashtra Human Rights Commission: Structure, Powers and Functioning," includes the State Human Rights Commission's organisational structure, how it execute functions and the powers it has under the Protection of Human Rights Act, 1993. The chapter puts forward the historical references surrounding the Protection of Human Rights Act, 1993, which provides constitutional validity to the Commission. The chapter further provides an overview of human rights commission from other countries. A statutory autonomous body, the Maharashtra Human Rights Commission came into being on March 6, 2001 with the purpose of protecting and promoting human rights. The chapter dwells how the State Commission was set up to supplement the efforts of NHRC. Elaborating on the process of setting up the Commission, the chapter provides information about its current and past chairmen.
Coming on to the Constitutional part, the chapter covers under what section of the Protection of Human Rights Act, 1993, the State Commission was established, how the appointments of Chairman and other members of the Commission are being carried out, and the provision for removal of its member. The chapter then focuses on what the relevant sections of the Protection of Human Rights Act, 1993, pertaining to the functions of the Commission, powers relating to inquiry, investigation say. The chapter includes procedure while inquiring into the complaints and steps to be taken after inquiry. Under 'structure of the Commission', the chapter covers its broad area of work and how the commission deals with applications in addition to the broad categories about different decisions the Commission may deliver. The elaborate list of issues that reflect in the numerous complaints have been mentioned at the end of the chapter.
Chapter V – MSHRC: Cases and Recommendation Orders:
The fifth chapter in the thesis, titled, "MSHRC: Cases and Recommendation Orders" summarizes the complaints received by the Maharashtra State Human Rights Commission and the decisions delivered on these complaints. Addressing the grievances of human rights victims, and making people aware about the protection and promotion of human rights has been the primary area of the Commission's activity. In 10 years of its existence since 2001, the Commission has received 45,769 cases. Out of which the Commission has disposed 42,725 cases. The chapter begins by providing statistics about cases disposed off by the Commission every year since inception through a progress report. The chapter also provides charts on year-wise statistics of custodial deaths and the cases of suo motu cognizance by MSHRC.
While the Commission every year receives large number of cases, the data obtained from the MSHRC shows that there are fewer number recommendations made against the complaints. Moreover, the compliance have been made in even lesser number of cases. The chapter gives the summery of number of recommendations and how many have been complied with. The chapter provides summery of select complaints, serving as representative for others from the same classification, and the action taken on these complaints by the MSHRC. Cases mentioned in the chapter are of police atrocities, illegal detention, administrative and medical negligence, denial of legitimate benefits, inconvenience, corruption, unhygienic conditions causing nuisance, bonded labour/child labour, violation of right to vote, street children, unsatisfied investigation by police and social boycott.
Chapter VI - Conclusion
The sixth chapter analyses the previous chapters to critically assess the functioning of Maharashtra State Human Rights Commission and proposes suggestions to improve Commission's performance. The Protection of Human Rights Act, which provides statutory basis to the MSHRC, has completed 20 years. The chapter also evaluates success of the Act and makes recommendations.
The Protection of Human Rights Act and the constitution of the Maharashtra State Human Rights Commission provided by the Act, have advanced the protection of basic rights in the state of Maharashtra given that grievance expressed by large number of people were successfully addressed by the Commission. The MSHRC, despite its several shortcomings, has remained an indispensable institution in the state of Maharashtra. From 2001 to 2011, the MSHRC has attempted to provide relief to number of people by recommending actions. As a result of the valuable service being rendered by the MSHRC, number of complaints received by the Commission every year has grown with the exception of 2009 to 2011. Established on March 6, 2001, the Commission in its first year received 1454 cases. In its fifth year on 2005-06, the Commission received 5585 complaints. While increase in number of cases may not directly be linked to people's growing faith in the Commission, it certainly is an indicator of MSHRC being a strong hope for people especially when the other arms of State machinery cause injustice to them.
The initial cynicism expressed by some about the usefulness of rights body appears unfounded given the work MSHRC has carried out in protecting and promoting the human rights. Out of total 45,769 cases received by the MSHRC during 10 years since 2001, the Commission disposed of 42,725 cases. Among the overall disposed cases, 28,220 cased were disposed in limine while 14,505 cases were disposed after hearing. On its part, the Commission however has been partially successful in performing its duties since the number of cases waiting to be disposed of has also increased to a large extent. At the end of first year after the formation of the Commission, there were 916 cases pending. By the end of fifth year (2005-06), pendency of cases increased manifold with 3965 cases waiting to be disposed of. In the subsequent years the Commission disposed higher number of case and as a result, by 2010-2011, pendency came down to 3044 cases. There are number of reasons attributed to the pendency of cases.
One reason for high pendency of cases is the scrutiny of the complaints. There are applications, which the MSHRC registers with itself but gets dropped in the scrutiny for not being in the jurisdiction of the Commission for reasons such as some complaints are against private individuals or vague or more than a year old or pending with other Commissions or Courts. While the office of the MSHRC accepts most applications, scrutiny is done at the level of Commission, which comprises of chairman and member. Both, the chairman and member of the Commission are often burdened with disposal of cases and as a result, work pertaining to review of application takes a backseat, leading to piling up of cases. Another reason for the high pendency of cases is delay in appointments. The appointment of chairman and the members are done by governor based on the recommendations made by a committee headed by chief minister. Often it takes months to appoint new chairman and members after the expiry of the term of preceding members or their abrupt resignations.
When the Commission is without chairman and members, the staff can only accept complaints with no powers to take any call on those applications. The functioning of the Commission is similar to that of Courts where no case can be heard without judge. In other words, the chairman and each member of the MSHRC constitute a "bench", which can hear cases. The media has time to time reported on the delay in the appointments at the Commission, which has resulted in the high pendency of cases. On numerous occasions, the MSHRC was dysfunctional owing to absence of chairman and members as the state government delayed appointments. The section 21(a) of the Protection of Human Rights Act, 1993, demands that Chairman of the Commission has to be the chief justice of High Court. This narrows down the choice, causing the delay while appointing the Chairperson at the Commission.
The third reason that affects the efficiency of the Commission is shortage of staff and the necessary infrastructure. Most of the Class III and Class IV staff at the Commission are recruited on daily wage, bringing inconsistency in the work of the Commission. In an interview given to Times of India, dated February 21, 2012, former Commission member T Singarvel noted that inadequate infrastructure was one of the reasons for him in minimal disposal of cases. "For long, I had no stenographer. I used to write orders by hand. When I was provided with a stenographer, he was on daily wage. Still, I have done justice to my job," Singarvel said in his ToI interview. The post of Secretary at the MSHRC is important one given that the person in charge in the Chief Executive Officer at the Commission.
However, the past record shows that on numerous occasions officials were given additional charge as Secretary while their tenure remained short lived. Questions have been raised whether officials appointed elsewhere with the additional charge as MSHRC Secretary would be able to do justice with both the post he or she is holding. At the same time short lived tenures have brought in frequent discontinuity, hampering the overall efficiency of the Commission.
Another crucial point to explore is to what extent the recommendatory powers of the Maharashtra State Human Rights Commission effectively dealt with the issue of safeguarding the human rights. The recommendations made in its order by the MSHRC following the investigation into the cases where there have been allegations of human rights violation are not binding upon the respective government agency. The recommendations are sort of guiding principles on which the respective government agency is supposed to act in its commitment to protect human rights of the individuals.
The empirical evidence suggest that rate of detecting of human rights violations by the MSHRC has not been high while rate of compliance over the recommendations made by the MSHRC has been even less. The statistics made available by the Commission suggest that during 2001 to 2001, out of 14,505 cases disposed by the MSHRC after receiving report or conducting hearing, recommendations were made only in 1973 cases which is 13.6 %. As far as compliance was concerned, the picture is even dismal. As per the report received by the Commission, recommendations in only 88 cases have complied with while in other cases similar action is awaited. This suggest that MSHRC still has long way to be accepted as credible statutory body to be taken seriously by public offices.
While outright rejection of recommendation citing bureaucratic hassles is common, there are instances when the Commission has witnessed partial compliance of its order. Partial compliance are either related to releasing part of the amount as a compensation to the victim or acting partially while taking the disciplinary action against those responsible for violation of human rights. One of the commonly heard problem area is delayed compliance. While the orders recommending action obligate the public department to act in specific period (e.g four to six weeks) the compliance is rare within the time stipulated by MSHRC. In cases where there is delayed compliance, the action sometimes becomes less meaningful as it fails to provide relief to the complainant when he needs it most.
The low compliance rate makes MSHRC a weak body with no direct powers to prosecute or enforce in totality the orders issued by it. It also expose the inherent structural flaws of this otherwise great institution. Without powers of prosecution, the MSHRC looks as a toothless body. While the judiciary has the backing of contempt of court under section 2 of Contempt of Court Act 1971, which can invite action in case of any disobedience to the court judgment, the same does not apply to MSHRC since the Protection of Human Right Act has no such provision. Most cases that MSHRC receive are against the senior public servants including police personnel and jail authorities. While in some cases the MSHRC has recommended action against senior public servants, the government, it appears, has exhibited lethargy in taking action against them.
The Maharashtra State Human Rights Commission has been empowered under section 18(b) of the Protection of Human Rights Act to approach High Court or Supreme Court for direction on implementing its recommendation orders. In other words if the respective public authority fails to comply with the order issued by the MSHRC, the Commission can approach the higher court. However, the MSHRC's record suggests it has hardly invoked this provision given its non-confrontationist attitude as well as absence of follow up mechanism. Once the MSHRC delivers recomendatory order, it does not follow up with the government if its directions are not complied with.
Another crucial point to be considered is that the mandate of MSHRC is limited since the Protection of Human Right Act has restricted the scope and ambit of human rights in the country as well as states. According to the section 2(d) of the Protection of Human Right Act human rights have been defined as "rights relating to life, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India". Therefore the Act requires national as well as state human rights commissions including MSHRC to focus more on civil and political rights than social and economic rights.
As far as mandate to inquiry is concerned, as per the Act, the Commission can inquire into allegations of corruption only against public servants. That leaves out private citizens even as they are responsible for infringement on fundamental rights. In case if there are allegations of human rights violations against persons working in private firms, the victim can reach out to relevant government authority with the complaint. If that authority fails to act, then the petitioner can approach the Commission with the complaint that the state authority has not performed its duties. The same applies to the cases of human rights violation at domestic level. The MSHRC in some of its orders while hearing allegations of human rights violations have recommended action against public authorities which failed to take action against persons working in the private sector.
Recognizing that death in the custody is a public matter requiring impartial investigation for the protection of individual interests of family of the deceased as well as of society in general, the state government through its circular has made it mandatory for concerned officials to report custodial deaths to the Commission. As a result, the number of cases pertaining to custodial death has increased every year. The MSHRC on its part seemed to have turned blind eye to cases of deaths in police custody. In 10 years beginning 2001 to 2011, the MSHRC failed to dispose even a single case of custodial death. Activist working in the field of human rights have questioned MSHRC's failure to dispose cases of custodial deaths. Indeed, if the Commission has been unable to clear even a single case of death in police custody, then questions will be raised if the very purpose of establishing the Commission has been served. After all, death in the custody of any state machinery is becomes matter of public concern. It requires an impartial investigation for the protection of individual interests of family of the deceased as well as of the society in general. According to UN principles of medical ethics, the doctors have a duty to provide the prisoners with protection of their physical and mental health and treatment of disease of same quality and standard as is afforded to those who are not imprisoned.
The Commission while addressing the complaints of human rights violations has performed the task of investigative functions, mentioned under section 14 of the Protection of Human Rights Act. The Commission has powers to inquire matters of human rights violations related to the list II and III mentioned in the seventh schedule of the Constitution. The Commission for the purpose of investigation as a part of inquiry into the complaint of human rights violation has used the services of central and state government agencies. Under the special inspector general of police, who has powers to guide investigations into the complaints, the Commission had launched probe in many cases. The probe carried out under the guidance of inspector general of police has helped the Commission in disposing the case with greater impartiality.
While inquiring into the complaints, the Commission, as stated in section 13 (1) of the Protection of Human Rights Act, have powers that of civil court trying a suit under Code of Civil Procedure, 1908. The Commission as per its powers, has summoned witnesses and examined them on oath. The Commission in some cases enforced the presence of witnesses; received evidence on affidavits; made discovery and production of relevant documents required to probe the matter. Requisitioning public record from court or office has been one of the judicial functions conducted by the MSHRC.
Among the cases that the Commission has received during the first decade of its existence, a high number of complaints were related to atrocities by police and custodial deaths. An analysis of the complaints against police shows that cases mostly include allegations of abuse of power by police force, failure to register complaint, false implication, illegal detention, torture in the custody and bribe. The Commission through its order has recommended action in many cases although the state government has been reluctant to act.
At the same time, large number of complainants was from the economically or socially lower strata, which are often vulnerable to the human rights exploitation by a powerful lot. While one way to minimize the exploitation is to bridge the gap between people from lower and upper strata by empowering the former, institution like Maharashtra State Human Rights Commission plays out a great leveler where poor can complain against mighty public servant working at the helm in government machinery. Over the years, MSHRC has received complaints from every district of the state. This further indicated that people from every corner of Maharashtra are aware about MSHRC.
The first annual report published by MSHRC cites number of cases received from each district of Maharashtra. From Mumbai to Gadchiroli and Kolhapur to Nandurbar, the Commission has received complaints from far flung areas of the state. This shows that MSHRC has been able to sensitize people to a large extent on issue of human rights in the state. Also, had it not been the increased level of awareness, the number of complaints received by the Commission would not have gone up. From the inception of MSHRC, there has been steady rise in the cases every year, except for year 2009-10 and 2010-11. However many of those who come to Mumbai at the Commission headquarter to register complaint or attend hearing face hardship spending time, money and other resources. Complainants from Gadchiroli and Chandrapur, which are on the eastern part of the state, have to travel down around 900 kilometers to come to Mumbai to register their statements. To ease the hardships faced by the complainants, the Commission conducts hearing in different parts of the state on specific intervals.
The Maharashtra State Human Rights Commission achieved an important milestone in 2005 when the Commission launched its website - http://www.mshrc.gov.in/. The website was a step forward in increasing the outreach of the MSHRC. Through the website, the Commission's efforts have been to increase the accessibility among masses. Following its launch, the website has received good response with 379706 visits till January 2015. However the website does not provide adequate and updated information. Unlike the National Human Rights Commission, which accepts complaint online, the MSHRC has not been able to introduce similar system. The complainant has to submit his complaint either in person or through post.
The MSHRC lacks on account of transparency. The MSHRC has made is annual reports available only till 2006 while the printing of annual reports from 2006-07 onward was in process during January 2015 when the thesis was underway. The annual report contains information about the performance of the Commission including the complaints handled by the Commission, the nature of complaints, surprise visits made by the Commission and observation and recommendations. The information cited in the MSHRC proves to be crucial for researchers and journalist covering the human rights beat.
The city of Mumbai where MSHRC is headquartered has diverse and huge media presence. Very often, the electronic and print media approaches the State Human Rights Commission for information on various cases. In such scenario, the absence of full time information officer at the Commission makes it difficult for the MSHRC to provide the information to the journalists as and when required.
The functioning of the MSHRC has been smooth and hassle free while the procedure for registering a complaint and the subsequent actions on it are simple. While the Commission doesn't charge any fees at any level, the complainant can directly approach the MSHRC with his grievance. The complainant does not need to engage lawyer to argue the case on his behalf and rules of evidence are not rigidly followed. Unlike in the courts where legal counsels are required to argue the case, there is no such need at the Commission. A layman can also file a complaint and present his side. The complainant can straightaway approach the MSHRC with his case and seek speedy justice. The free and speedy redressal has resulted in large number of people from economically downtrodden section of the society looking for justice from MSHRC.
Besides admitting complaints coming from the petitioners, the Maharashtra State Human Rights Commission has proactively acted on certain cases of human rights violation. The MSHRC has effectively made use of section 12(a) of the Protection of Human Rights Act and taken suo motu cognizance of cases where there have been human rights violations. In 10 years after its establishment, the MSHRC has in total taken cognizance of 118 cases suo motu. Most of these violations were reported by media and NGOs, upon which the Commission acted proactively initiating the inquiry. However this number is very low given that media of late has been reporting on human rights violations quite aggressively.
In the cases where the MSHRC has found violation of human rights or negligence in preventing the violation of human rights by a public servant, the Commission has recommended action against the guilty using the powers rendered to it under section 18 of the Protection of Human Rights Act. The empirical data suggest, the MSHRC in most cases has ordered monetary compensation. The compensation ordered by the Commission is to be provided by the respective department of the government. In cases where conditions of hospitals, jails are not up to the mark, the MSHRC has made praiseworthy recommendations to improve the situation. The Maharashtra government too has acted on the recommendations submitted by the MSHRC.
As per the section 21(5) of the Protection of Human Rights Act, the Maharashtra State Human Rights Commission can inquire into human rights violations only in the respect of matters related to any of the entries enumerated in List II and III in the seventh schedule of the Constitution. It means the MSHRC is not empowered to inquire into matters pertain to any of the entries mentioned in List I. The list includes defence and security establishments, which have been kept out of bound from the state Commission.
The State Commission is housed in a century-old government building having a heritage tag. Being a heritage structure has its own problems as it creates hurdles for the Commission, which has not been able to create new facilities, even its burden is increasing with number of complaints going up every year. Currently the MSHRC is located at Hajarimal Somani marg, CST, Mumbai. The location of the MSHRC however turns of to be beneficial for those who come up with their complaints. Many complainants coming from other parts of Maharashtra find the MSHRC office very convenient as it situated just opposite the land mark Chhtrapati Shivaji Terminus where one can get down by railway.
Despite being overburdened by the complaints coming from across the state, the MSHRC has no bench in other parts of Maharashtra. As a result it sometimes becomes inconvenient for the complaint to incur heavy cost and come to Mumbai for hearing from some extreme corners such as Gadchiroli in the east and Kolhapur in the south. To be fair with the MSHRC, it has on occasions organized hearing in different parts of the state so as to make it convenient to the petitioners. The response received during such hearing was good. However there is no fixed timing when the State Commission hold sittings outside Mumbai.
Apart from hearing the petitions, the MSHRC as per the provisions of Protection of Human Rights Act, 1993 has been encouraging various academic initiatives in the field of human rights. The section 12 (g) of the Protection of Human Rights Act, 1993, the Commission shall undertake and promote research in the field of human rights. The Commission has aided various research works through the full time researcher officer. At the same time the Commission has recruited interns to give them opportunity to learn more about the human rights. This is being done with the view to spread awareness on human rights issues among university students. The internship is normally given to law students preferably from the backward class. The internship program is an yearly academic initiative carried out twice in the year during summer and winter.
The MSHRC has been actively involved in spreading the human rights literacy across the different groups in the society Protection of Human Rights Act, 1993. The MSHRC through various workshops and seminars held awareness programmes to creating literacy about the human rights in different sections of society and promote the safeguards available for the protection of human rights, as envisaged in the section 12(h). On many occasions, the invitees were legal and other experts to shed more light on the issue. Some of the workshops and seminar were based on the themes such as 'human rights and disability', 'police as a protector of human rights', 'rights of mentally ill in prison and custodial institution' and 'gender equality and protection of human rights'.
The MSHRC has been encouraging the non-governmental organisations working in the field of human rights by supporting their initiative. To disseminate the information about the non-governmental organisations working in the field of human rights, the MSHRC has published a list on its website which is helpful for those seeking help and others carrying out research. The chairman and the members of MSHRC participated in several lectures organised by the NGOs and other organisations.
The chairperson and members of MSHRC as a part of sub-committee time to time carried out visits to various police stations in the state to ensure whether rights of arrestees are being protected under article 21 and 22 of the Constitution of India. While article 21 of the Constitution stress right to life or personal liberty, guaranteeing against any kind of torture and assault by the state authorities, article 22 provides protection against arrest and detention in certain circumstances. The Supreme Court while hearing DK Basu versus state of West Bengal case issued guidelines to achieve objectives under article 21.
As per the directions of the Supreme Court, the MSHRC constituted sub-committee first time in December 19, 2001 to monitor the 11 guidelines issued during DK Basu versus state of West Bengal case. The sub-committee is headed by the chairman of the Commission and comprised of members. The main function of the subcommittee was to verify compliance on the spot. Almost every year since 2001, the sub-committee has made surprise visits to various police stations across Maharashtra to verify if guidelines issued by the Supreme Court are being followed or not. Wherever the sub-committee noted non compliance of the Supreme Court guidelines, it directed the in-charge officials of the respective police stations to adhere to the requirements.
At the end of drawing conclusion, the researcher has proposed recommendations to improve the functioning of the MSHRC. Some of the key recommendations, which will strengthen MSHRC if conceded, have been mentioned as follows:
1.
In an attempt to make functioning of the MSHRC more effective, the need of the hour is to amend the Protection of Human Rights Act, 1993, which provides statutory backing to the State Human Rights Commission. Some of the proposed amendments are:
a. One of the important amendments required to be brought in to make the Commission more powerful is to grant enforcement powers replacing the existing system wherein it can only recommend action. The Commission should be granted powers to enforce its order by bringing in amendment in section 18(a) of the Protection of Human Rights Act, 1993.
b. Under the existing constitution of MSHRC, the Commission has no powers to invoke contempt notice even if its order is not complied or the person held guilty of human rights violation is disobedient while defying the authority of the Commission. Therefore an amendment is proposed to make Contempt of Court applicable to the Commission by bringing in similar provisions available under section 2 of Contempt of Courts Act of 1971.
c. Increase the ambit of meaning of human rights in section 2(d) of the Protection of Human Rights Act, 1993 by including rights enshrined in the Universal Declaration of Human Rights as well as International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. This will increase the scope of the MSHRC as section 2(d) defines human rights as "rights relating to life, liberty, equality and dignity of the individual."
d. Considering the delay often witnessed during the appointment of Chairperson at the Commission given the non-availability of the retired chief justice of High Court, section 21(a) of the Protection of Human Rights Act, 1993 requires to be amended. The amendment should include allowing retired judges at high court and Supreme Court as the Chairperson of the Commission so as to allow appointment expeditiously.
e. Amend section 21(5) of the Protection of Human Rights Act, 1993 to bring under the ambit of the State Commission List I in the Seventh Schedule of the Constitution of India, which mainly includes defence and security establishments. As per the Commission's constitution, the MSHRC can inquire into violation of human rights only in the respect of matters pertaining to the entries identified in the List II and III in the Seventh Schedule of the Constitution.
f. A clause should be incorporated in the Protection of Human Rights Act, 1993, providing financial autonomy to the Commission so that it can offer compensation to the victim. The Commission should also have powers to recover the sum from the person or institution responsible for the violation of human rights.
g. To bring in more sensitivity while addressing the complaints of sexual exploitation of women, an amendment of including a women as a member of the Commission is proposed in section 21 (2) of the Protection of Human Rights Act, 1993. Number of members should be increased so as to expedite the disposal of cases and reduce the pendency. It will help the Commission work effectively.
h. The Secretary of the Commission, who has no powers to hear cases, can be made member ex- officio of the Commission. This would only lessen the burden of the Commission, which has been huge task of disposing large number of pending cases. To make it possible, an amendment in section 21(3) is required.
i. To avoid accusations of partiality while carrying out the investigation, the Maharashtra State Human Rights Commission's investigation team can be headed by a retired judge. To make this happen, an amendment is required in the article 14 of Protection of Human Rights Act, 1993.
j. Empower the Maharashtra State Human Rights Commission to shun its image as toothless body.
2. protect human rights of the citizens in a more effective manner, amendments are required in the Constitution of India. Some of these amendments include incorporating rights in the Constitution of India in accordance with Universal Declaration of Human Rights and international covenants such as ICCPR and ICESCR.
3. The MSHRC conducts its sittings in Mumbai though on occasion it conducts sitting in other parts of the state. There is however no fixed time-frame for sittings outside Mumbai. Therefore the MSHRC should have circuit bench in Marathwada, Vidarbha and Western Maharashtra to make it convenient for the complainants, who come to Mumbai from far ends of Maharashtra spending time, energy and resources. If the circuit bench is not possible, the MSHRC should on monthly basis conduct hearing in each division of the state.
4. The MSHRC should be encouraged to invoke section 18(2) of the Protection of Human Rights Act, 1993 and approach higher court for the compliance on its recommendation orders in cases where the Commission's directions are not obeyed.
5. Fill up vacancies on priority basis. The post of research officer is significant in an institution like MSHRC. A recommendation has been proposed to have two full time research officers so that if one official is on leave - as in the current case - another officer can continue carrying out research related work so that functioning of the research department in MSHRC will not hinder in anyway.
6. Provide adequate manpower to MSHRC for its smooth functioning. Those posted at the MSHRC, especially the Secretary and special inspector general should be offered stability to work at the Commission for at least two years. At the same time, post of Secretary requires a full time officer, not someone having additional charge.
7. The MSHRC while utilizing the provisions of section 12(a) of Protection of Human Rights Act has proactively taken the cognizance of some cases reported by media. However such intervention has been very rare and therefore the Commission has to be more proactive in taking suo motu cognizance of human rights violations especially when media has been aggressively highlighting it.
8. At a time when the whole world is embracing internet, the MSHRC lags behind in the initiative. While the National Human Rights Commission (NHRC) has its website, the Commission does not accept complaints online. The MSHRC is recommended to take a cue from NHRC and introduce online complaint registration system.
9. Given the rise of media and the general awareness in the society, appointment of a full time information officer or Public Relation Officer to deal with queries from the journalists and applications seeking information under Right to Information Act is required.
10. The MSHRC had taken up the task of publishing annual reports for the past few years in 2015. Publishing the annual reports on regular basis at the end of every year is most necessary.
11. There has been huge work going on in the human rights field across the world. The MSHRC needs to update its library with books and research papers published in various parts of world.
12. The MSHRC should be stricter in implementing the Supreme Court’s guidelines in the DK Basu case by taking action against those in-charge officials of various police stations where the committee observes non compliance of the Supreme Court guidelines.
13. Need for MSHRC to rope in researchers, activists, lawyers and NGOs working in the field of human rights on large scale to create awareness about protection and promotion of human rights.
14. While educational institutions such as Savitribai Phule Pune University have already introduced human rights education, there is need to commence this at school level.
15. There is need for different departments of government of Maharashra to be proactive while implementing the recommendation orders of MSHRC. Also needed is setting up of human rights court in each district of the state as provisioned in the section 30 of the Protection of Human Rights Act, 1993.
16. MSHRC sometimes faces problem of cross filing of complaints. The complainant approaches various institutions with the same complaint, leading to duplication. There needs a mechanism to prevent duplication of complaints through weekly or monthly coordination among State and National Human Rights Commission and High Court.
Yogesh M Joshi Dr. Shailendra Deolankar
(Name of Researcher) (Name of Supervisor)
