The false pride of the National Human Rights Commission of India

Indians take pride in several issues ranging from democracy to unity in diversity. Most of this “pride speech” is often by India’s middle class and neo-rich that are sometimes completely disconnected from reality. The government and its various agencies often reflect similar pride.

The government of India has spared no venue to boast about itself whenever and wherever it has had a chance. This attitude was reflected in the interventions and representations made by the Indian government’s delegation during the fifth session of the United Nations Human Rights Council in Geneva. Quite surprisingly, the interventions made by the representative of the National Human Rights Commission (NHRC) of India, in the same session were also similar in tone.

The NHRC made oral interventions during the session, much of it praising itself and claiming that it was successful in promoting, protecting and fulfilling human rights and human values in India. The oral interventions made by its representative was evident that it was serving more as a backbench supporter of the government than a independent agency monitoring human rights in India. It appeared to be the victim of its own false pride.

The NHRC’s intervention at the council was also to show off its pride as an effective, authoritative and independent agency committed to rooting out human rights violations in India. However, to date, its work and that of its state subsidiaries proves contrary to this claim. The NHRC and its state bodies lack precisely two elements–independence and authority.

The government at its convenience and pleasure makes appointments to the NHRC and state human rights commissions. In most state human rights commissions, the appointment of the chairperson is at the whims and fancies of the particular state government. For example, despite legally challenging the appointment of the chairperson of the Kerala State Human Rights Commission on allegations of nepotism and corrupt practices, the person continues to serve the commission.

Regarding effective redress for victims, the human rights commissions at both the national and state level are not considered as replacements for the courts. The role of the commission at all levels, among other duties, is to recommend to the government actions required by the government in cases involving human rights violations. The question is whether the government adheres to these recommendations.

The representation made by the NHRC of India to the U.N. Human Rights Council was as if the government follows all its recommendations. A well-worded statement was made to the council to indicate that the government adheres to the recommendations of the commission and that the commission does have some influence upon the government and its actions and polices pertaining to human rights. Both statements are wrong and highly exaggerated.

The state human rights commissions, as well as the NHRC in India, do not have enough resources for effectively investigating a case brought to its notice. Instead, the commissions usually refer cases to the respective state police to investigate. The commissions function in a make-believe world when the complaint is against the police and expect it to be effectively investigated by the same police department.

The NHRC also made a false claim to the council by saying that “100,000,000 Indian rupees [US$2.47 million] had been recommended and also distributed to the victims or next of kin.” Though the recommendations were true, it lacked compliance. Hundreds of victims have not received any compensation awarded by the commission leaving one to wonder where all the money went. The recommendations of the commission seemingly end in a black hole within the government; they are just not implemented.

If the government fails to comply with the recommendations of the commission, the aggrieved party, which includes the commission, can approach the court where one has to wait decades for the verdict. Consequently, why is a person not able to go straight to the court instead of approaching the commission to save time?

If the commission enjoyed a privileged position with the government of India, as claimed at the U.N. Human Rights Council, why has the government not fulfilled the commission’s request for more resources for investigating cases? If the government had provided the commission with the necessary physical and human resources to function effectively, the victims would have had a better chance for redress from the commission.

What was evident during the U.N. Human Rights Council session was a failed attempt of the NHRC of India to show itself as a body respected by the government and its functionaries, though no one believes that the NHRC as an agency is well respected and fully supported by the Indian government.

Forums like the United Nations with their limited opportunities must be utilized by agencies like the NHRC to present facts, not fiction. This is required because one of the roles of agencies like the NHRC is to provide redress to victims and to make recommendations to the government. However, when agencies like the NHRC reduce themselves to blind supporter’s of the government due to their false pride and acts of self-deceit, what is suppressed is the possibility for victims to make their voice’s heard, and, in the process, human rights suffers.

(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master’s degree in human rights law.)

By BIJO FRANCIS, UPIASIA , HONG KONG, Jun. 19,2007

Merits of Mandal report

In view of the confusion created by Mandal II, the Supreme Court has asked the government to clarify two things: One, what is the basis for determining who belongs to an OBC category; and two, the rationale behind 27 per cent reservation for OBCs. These two points need to be immediately cleared.
OBCs belong to the shudra category in the caste classification. Several people confuse shudras with Dalits (earlier known as untouchables). OBCs were supposed to be people who lived by their physical labour.

Though not treated as untouchables, they formed the largest segment of low castes and suffered from all sorts of social disabilities. That is why they qualify to be categorised as socially and educationally backward, and thus entitled to affirmative action under the Constitution.

As to their identification, the Mandal Commission undertook the biggest social survey ever attempted in this country. To begin with, an experts’ panel under the chairmanship of eminent sociologist M N Srinivas and 14 other social scientists was formed to devise schedules for identification of OBCs.

Simultaneously, Delhi University held a seminar for a thorough discussion of the terms of reference of the commission. After several meetings, the experts’ panel prepared four comprehensive schedules, two each for rural and urban areas.

All the state governments were sent these schedules for conducting the survey. Two villages and one urban block were selected at random in each and every district of the country, and all the residents of these areas were covered by the survey.

Questionnaires were also sent to all the states and 30 ministries of the central government, and notices published in national dailies and regional papers inviting public response.

The data thus collected was passed on to the National Informatics Centre, which analysed the information contained in the four pre-coded schedules.

The results of this analysis were used by the experts’ panel, which derived 11 indicators of social, educational and economic backwardness. It was by the application of these indicators that OBCs were identified.

As to the number of OBCs and their percentage, government had stopped collecting caste-wise enumeration of population after the 1931 census.

Consequently, the population of various OBCs identified by the commission were culled from this census, and extrapola-ted on the basis of population growth trends over this period.

That is how the percentage of OBCs was arrived at, and it worked out to 52 per cent. When the 11 indicators were applied to identify OBCs, 44 per cent happened to be Hindus and 8 per cent were from other religions.

That shows how authentic the indicators were as it picked up a fair number of non-Hindus who were socially and educationally backward.

Some commentators have pointed out that the National Sample Survey Organisation’s investigations show that OBCs constitute 32 per cent of the population, and National Family Health Survey places the figure at 30 per cent.

These two surveys cannot match the span and depth of Mandal Commission’s investigations, and its findings can be revised only if an exercise of the same magnitude is attempted.

It has also been pointed out that 25-50 per cent of the reserved seats remain vacant for lack of qualified OBC candidates, resulting in a colossal waste of resources. This is true, but it is the result of sloppy and unplanned implementation.

The commission had laid great emphasis on creating suitable infrastructure in institutions to enable OBC candidates to derive full advantage from reservation. This required adequate planning and financial commitment. But as in 1990, the issue is again at present being treated purely as a vote-getting ploy.

The government is now dangling the carrot of proportionately increased seats in professional institutions to obviate any shrinkage in the ‘merit’ quota, as if the additional infrastructure can be created by waving a magic wand.

The current turmoil could have been averted if educationists had been taken into confidence, a sober assessment made of available capacities and a phased scheme of implementation prepared for a smooth transition.

By S S GILL, Times of India, 13 June 2006

[The writer is a former secretary, Mandal Commission.]

Kapil Dixit

Kapil Dixit, Times of India

Task assigned : Terror News Creation , Stationed in UP

http://timesofindia.indiatimes.com/search.cms

Times of India

Indian rulers have traditionally been a corrupt lot

For the Love of Money, Hand in Graft

India should take lessons from some of its neighbours to put an end to corruption

Indians have always been hopelessly divided amongst themselves. Small states, enclaves, principalities and kingdoms dotted the landscape in the past. So much so that at the time of Independence, there existed more than 500 principalities spanning from Khyber to Kohima, and from Karakorum to Kanyakumari.

Nevertheless, one of the remarkably consistent features about India as a nation has been the failure of its rulers to protect the borders from adversaries. Virtually every aggressor, from Alexander the Great to the Mughal king, Babur, and later, the British, was able to conquer this nation with considerable ease.

There indeed appears to be something peculiar in the collective psyche of Indians. Indian rulers have traditionally been a corrupt lot. The vice was born out of their inherent love of money. Generations of Indians have been brought up with the belief that what matters most in life is wealth.

Things haven’t changed for the better, even six decades after Independence. How else can one explain the action of Babubhai Katara, a member of parliament, who chose to smuggle out people by issuing false passports in return of a hefty payment?

Unfortunately, the Indian ruling class has always hesitated to take punitive action against corrupt elements who are hell-bent on jeopardizing the security of the nation. One wonders whether there is any real need of ‘foreign hands’ such as the ISI, or militant outfits like Ulfa and the Maoists when Indians themselves appear to be committed to break the system from within! Perhaps India could lessons from one of its powerful neighbours, China, to take corrective action before it is too late.

It is true that even China is not free from the scourge of corruption. But the Chinese government has taken a hard stance to curb the malady. Thus, the Chinese president, Hu Jintao, has launched a high-profile campaign against institutional corruption in his country. The beauty of the Chinese story is that the government decided to act tough instead of making grand promises which are never fulfilled.

Zhang Enzhao, president of China Construction Bank, one of the leading State-owned commercial banks in Beijing, resigned in March last year over allegations that he had taken bribes from an American contractor. Among government officials arrested or sentenced for corruption in 2005-2006 were the deputy governor of Sichuan province, the deputy party secretary of the ruling communist party in Shanxi, the transportation bureau chiefs in Henan and the deputy mayor of Suzhou.

In Indonesia, perceived as one of world’s most corrupt nations, anti-corruption measures proved to be surprisingly effective. A newly constituted anti-corruption commission and the ad hoc courts put the governor of Aceh province behind bars for 10 years for his role in a multi-million-dollar bribery scandal.

It would be better for India to emulate the Chinese in order to rid the country of corruption. The strictest punishment should be meted out to those who compromise the nation’s polity, economy and security for money. Else, our founding fathers would continue to turn in their graves to find their successors making a mockery of their cherished ideals.

ABHIJIT BHATTACHARYYA, The Telegraph, June 07, 2007

77 % believes that Indian Judiciary is corrupt : Global Corruption Report

The reputation of India’s judiciary, considered overbearing and democratically unaccountable by many, has taken a knock with the publication of a report by Transparency International (TI) called the “Global Corruption Report 2007”.

The report, based on a 2005 countrywide survey of “public perceptions and experiences of corruption in the lower judiciary,” conducted by the Centre for Media Studies, finds that a very high 77 percent of respondents believe the Indian judiciary is corrupt.

It says that ‘’bribes seem to be solicited as the price of getting things done”. The estimated amount paid in bribes in a 12-month period it found was around 580 million dollars. ‘’Money was paid to the officials in the following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to middlemen.”

“This is a wake-up call not just for India’s legal system, but for society and the state itself”, says Upendra Baxi, a highly regarded Indian jurist, former vice-chancellor of Delhi University, and professor at the University of Warwick in Britain. “It confirms what we have known for years and casts a shadow on the integrity of the judiciary. It also calls for urgent, drastic remedial measures.”

“The report only covers the lower or subordinate judiciary and excludes the judges of the High Courts (of Indian states) and the (national) Supreme Court. There are credible reports that corruption has permeated the higher judiciary too,” Baxi told IPS.

In January 2002, S.P. Bharucha, then India’s chief justice, said that 20 percent of the higher judiciary might be corrupt. In recent years, several upper court judges have been accused of “irregularities”, for instance, in the preferential allotment of valuable land by state governments, and other favours.

The report of the Berlin-based TI should greatly embarrass India’s judiciary, which always takes a sanctimonious stand on corruption. This past March, two judges of the Supreme Court said: “Everywhere, we have corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people (like you) on the lamppost so that it acts as a deterrentà.”

However, no case of judicial corruption has ever been put on trial in India. Under the Indian system, it is virtually impossible to charge or impeach a judge.

“In India, impeachment is not feasible because it requires a huge (two-thirds) majority in Parliament,” argues Colin Gonsalves, a public interest lawyer with the Human Rights Law Network told IPS. “India’s parliamentary elections have produced hung verdicts for years. And it is virtually impossible to muster the numbers necessary for impeaching a judge. In 1993, V. Ramaswamy, a Supreme Court judge, was found culpable by a court committee. But he was politically well-connected and could not be impeached.”

This “freedom” from prosecution and impeachment further compounds the credibility crisis of the judiciary, in particular, the higher judiciary, which in India is a self-appointing entity not answerable to the legislature or executive.

The higher courts of India, shielded from public scrutiny, have increasingly turned conservative. They have recently handed down judgments which abridge or abolish labour rights, dilute environmental regulations, promote Big Business interests, and uncritically support globalisation and privatisation.

Judicial corruption in India is attributable to a number of factors, including “delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws”, according to TI.

Says the TI report: “As of February 2006, 33,635 cases were pending in the Supreme Court; … 3,341,040 cases in the High Courts; à and 25, ,458 cases in the 13,204 subordinate courts. This vast backlog leads to long adjournments and prompts people to pay to speed up the process. In 1999, it was estimated: ‘At the current rate of disposal it would take another 350 years for disposal of the pending cases even if no other cases were added’.”

Another factor is the low ratio of judges per one million population. This is as low as 12 to 13 in India, compared to 107 in the U.S., 75 in Canada and 51 in Britain. This high workload encourages delays and adjournments on frivolous grounds. “The judicial system, including judges and lawyers, has developed a vested interest in delays as well as corruption; it promotes a collusive relationship between the different players”, says Baxi. “This works against the public interest and the citizen’s rights. But even more important is the assault on rights that has occurred under the globalising neoliberal turn made by India’s higher judiciary since the early 1990s.”

Baxi terms this the “Structural Adjustment of Judicial Activism”, after the now-discredited “Washington Consensus” package of “free-market” policies promoted by the World Bank and the International Monetary Fund.

He argues that the Supreme Court and many High Courts have redefined their roles: from defenders of human rights and Constitutional freedoms, and guardians of the public interest, to conscious promoters of neo-liberal globalisation, with unrestricted freedom for capital and shrunken rights for the ordinary public.

“The tragedy in India”, adds Gonsalves, “is that it’s hard to put checks on the judiciary even as it runs amok by appropriating executive powers and interfering with legislative procedures even though the Constitution explicitly bars the procedures’ judicial scrutiny.”

In recent years, the Indian courts have practised “micro-management” of functions which properly belong to the executive, including specifying which fuel should be used in public buses, how cities should be planned and run, whether or not certain books should be censored, and whether street food should be sold.

The executive and legislature resent and chafe at this. Indeed, a first-rate conflict is brewing between these arms of the state, and the courts. There is a move to demand judicial accountability through a National Judicial Council Bill, which would allow serious investigation of corruption and other misconduct on the part of judges.

However, the Bill remains mired in conflict. The judiciary wants the Council to be manned entirely by judges, to the exclusion of members of the government, and equally important, of civil society. The executive does not.

“There are no easy solutions to the problem of making judges accountable,” argues Baxi. “But some interim partial measures can be tried. One is to appoint judicial ombudsmen from two highly-regarded statutory bodies, the Election Commission and Comptroller and Auditor General (CAG) of India. Nothing prevents the CAG from initiating an independent review of the performance of the judiciary. The CAG could produce highly credible and objective reports and help kickstart a process of promoting transparency and accountability.”

It is unclear if India’s executive and Parliament are willing to initiate such an exercise. But observers say that unless corrective steps are taken, the judiciary will continue to defy democratic accountability and intrude into areas outside its domain, even while corruption and denial of justice remain the order of the day.

Praful Bidwai, Legal System in the Dock, Thursday, 31 May 2007 , (IPS)