The Karnataka State Human Rights Commission (KSHRC) was constituted in July 2007, nearly 14 years after the Protection of Human Rights Act, 1993 (PHR Act) came into existence. And even this lethargic start was the result of a court order - in the case of P Hanumanthappa vs. The Home Secretary, The State of Karnataka, the Karnataka High Court directed the State Government to establish the KSHRC. However, the lack of political will to support human rights has plagued the Commission ever since.
To its credit, it must be said that in the three years since it came into existence, the KSHRC has managed to announce its presence to the State Government as well as civil society organisations. Its genuine efforts to rise above infrastructural and resource crunches are palpable. It has addressed several pressing issues such as cultural policing, custodial violence, conditions of jails, rehabilitation for victims of flood, rehabilitation for development induced displaced, and manual scavenging.
Justice S R Nayak, the current Chairman of the KSHRC has publicly expressed his displeasure over the government's failure to provide the Commission with necessary staff and infrastructure to carry out its mandate, and its lethargy and indifference to the recommendations of the Commission. His vocal views on the government's inaction to curb moral policing and attacks on minority citizens, and its poor efforts of providing relief in the flood-hit areas of northern Karnataka evoked harsh reactions and threats from representatives of the ruling party.
Justice Nayak did not, however, back down and instead declared that he was "no one's slave" and that if the government was violating human rights, he had the right to criticise them in public forums.
However, the statute has several shortcomings that prevent the Commission from fully realising its mandate. This, in conjunction with a State Government which has displayed apathy towards the Commission by not heeding its repeated pleas for staff, infrastructure, and funds and by not complying with its recommendations has posed a formidable challenge for the Commission. Administrative departments have taken a cue from this - a perusal of the case files at the Commission reveal that at least three to four reminders have to be issued before the departments submit reports to the Commission.
The key ingredient that determines the success or failure of a human rights institution is independence. The Commission should have the foundational, functional, operational, and financial independence to conduct its affairs and discharge its functions. The executive should not solely determine the composition of the Commission, nor should it control its finances. By these standards, is the KSHRC an independent body?
Knowledge and experience
The Commission lacks foundational independence as the Selection Committee which determines its composition is fairly political. The Committee comprises of the Chief Minister, Speaker of the Legislative Assembly, Minister-in-charge of the Department of Home, Leaders of the Opposition in the Legislative Assembly and the Legislative Council, and the Chairman of the Legislative Council. A majority of the members on the Committee are thus from the ruling party. No civil society organisations or actors are represented on the Selection Committee.
The Commission should have the foundational, functional, operational, and financial independence to conduct its affairs and discharge its functions.
Take the case in which a Dalit widow who used to cook mid-day meals for a school was being ostracised because the community presumed she was HIV-positive. The Commission directed the Deputy Commissioner of the district to have her examined by doctors to ascertain if she was indeed HIV-positive. Based on the medical report, the Commission concluded that the allegation was false as she had not tested positive. Appreciably, the Commission recommended that the District Administration should create awareness among parents and students and that they should eat food prepared by her and that appropriate action should be taken against those who spread false propaganda.
While the Members of the Commission are well meaning and the outcome of this case was desirable, their approach does not reflect knowledge or understanding of human rights. Determining the HIV-status of the woman was irrelevant to this case. Moreover, considering that the HIV virus is not spread through casual contact or through sharing of food, the Commission's direction to get her tested was unwarranted. Would the Commission's recommendation have been different if the victim of discrimination had indeed tested positive?
Also, the State HRCs receive substantial complaints against the police, but the Minister in charge of the Department of Home is involved in the selection of the HRC members themselves. This poses a potential conflict of interest. Instead, the Chief Justice of the State High Court should be on the Selection Committee. The Committee should also include a representative from civil society. The appointment process should be transparent and an opportunity should be available to civil society and others to participate by exercising their option to file objections.
The Commission has little or no operational autonomy as it has limited powers to appoint technical and administrative staff. In accordance with the PHR Act, the Commission depends entirely on the State Government to provide adequate staff and infrastructure. The KSHRC has to depend on the State investigative agencies to undertake investigations into human rights violations as it has only one Deputy Superintendent of Police and two constables at its disposal.
This prevents the Commission from exercising its full mandate and addressing complaints speedily. It is understaffed as the government has sanctioned only 105 staff of the 491 staff members that the KSHRC has requested.
The Commission has no say in the terms and conditions of the staff appointed by the Commission. The presence of a significant number of deputed staff (from other departments, on a temporary basis) also undermines the independence of the Commission. These staff are likely to have divided loyalties and bring with them bureaucratic baggage that could potentially structure or alter the processes within the Commission so as to resemble a government department. Further, deputed staff may be lacking in knowledge of human rights and this will hamper the overall effectiveness of responses.
Also, there is a potential difficulty with such appointments. A person deputed from the police department could be influenced or be uncomfortable while investigating complaints against a police officer. The person is likely to be reluctant to recommend initiation of proceedings for prosecution or disciplinary proceedings against a peer, and certainly not against someone who might one day be his boss again.
The Commission has limited financial independence. The Commission's sanctioned budget is a marginal fraction of its actual requirements. This has severely hampered the functioning of the Commission. An amendment to the Protection of Human Rights Act, 1993, which will suitably empower the Commission to utilise funds without the interference of the government is urgently needed.
The KSHRCs office is located alongside other government offices, which means that anyone approaching the office must do so with a significantly likelihood of being seen at KSHRC. Moreover, this also gives the view that the Commission is a government body. A physically separate location would allow people to approach the Commission without any fear, and it will also reinforce the view the Commission is not an extension of the government and is outside of it.
Further, with no office in districts the KSHRC is not easily accessible by those living outside Bangalore. And even the one office in Bangalore is not disabled-friendly. Communication is another area of weakness; the Commission also needs to take steps to maintain its own website where its reports, orders, and interventions can be easily accessed.
Does the Government listen to the Commission?
While the recommendations passed by the KSHRC are more or less satisfactory, the Commission's inability to enforce its recommendations or compel compliance renders the entire exercise nugatory. In the absence of defined consequences for non-compliance, the State Government has been ignoring its recommendations with impunity.
Under the Act, the only direct action that can be taken by the NHRC and SHRCs is to approach the Supreme Court or the High Court for directions, orders or writs to get its recommendations enforced. This would not be a practical approach for seeking compliance with every order of the Commission, and can only be resorted to in cases involving broader concerns of human rights violations. However, so far the KSHRC has not exercised this option in even one case, and doing so occassionally would give it more heft with the Government.
What the KSHRC has instead done is urge an amendment to Section 18(e) of the PHR Act such that if the government does not forward its comments on the
recommendations made by the Commission within one month, then "the recommendations shall be deemed to have been accepted, and the concerned Government
or authority shall implement whatever recommendation that has been made by the Commission in the inquiry report."