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“Impartial voting, free from violence, is a human right in democracies”

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On Human Rights Day, National Human Rights Commission Chairperson JUSTICE ARUN KUMAR MISHRA highlighted the work done by the statutory body during his tenure. In an exclusive interview with RAJSHRI RAI, editor-in-chief, APN channel, he recounted the action taken by the Commission in critical areas and laid bare the blueprint for further action

Rajshri Rai: It has been observed that National Human Rights Commission (NHRC) has been proactive in cases and has issued notices to state governments on human rights transgressions. How effective has this initiative been? The question gains importance with the Human Rights Day falling on December 10.

Justice Arun Kumar Mishra: It’s not a matter of just two and a half years. NHRC has been at the forefront of protecting human rights since its inception. However, we have proactively issued advisories on all major human rights violation incidents for the last two and a half years. Earlier, we issued an advisory on bonded labour, which was accepted by the government. Pre-trial stage compensation was increased to Rs 20,000. On September 24, 2021, NHRC issued an advisory on the protection of human rights of persons engaged in hazardous and sewer/septic tank cleaning. There have been deaths of around 600-700 sewage cleaners per year, and in the advisory, we have required that sewage should be cleaned by mechanical methods and not by men. We had also instructed that until the whole process is fully mechanised, the workers should be provided with safety gear and accessories, helmets, flashlights, oxygen, and precaution devices to detect where poisonous gases are present. 

It is heartening to note that the centre has begun a “Namaste” programme wherein funds are provided to state government and local bodies to mechanise the sewage cleaning process. However, the funds are not being utilised by the beneficiaries. We had issued notice to all the states. We had issued advisories for bettering mental hospitals and on prevention of jail suicides in correctional homes. Eighty percent of deaths in correctional homes are due to suicides. Hence, we recommended that mental health check-ups be made ligature objects that facilitate hanging be removed, etc. We have also issued advisories for pollution control and directed bridging the digital divide.

RR: Child exploitation on the internet is a serious concern. NHRC has recommended changes to the POCSO Act for the protection of children. Also, an advisory on Child Sexual Abuse Material (CSAM) has been issued. How significant is it in dealing with the problem?

AKM: This is an international problem. Children are being bullied on the internet; they are subjected to sexual harassment and other forms of exploitation, leading even to suicide. Sexual molestation of children is also shown live on the internet. We organised international seminars and deliberated on the problem. On October 27, 2023, an advisory was issued to all states asking them to form a special cyber crime cell to deal with the menace. 

We also stressed that intermediaries should take off such horrific content/videos online. Earlier, action against intermediaries was supposed to be taken within 36 hours; we advised that such action should be taken within six hours. Awareness campaigns should be initiated, and concerned officials should be trained. 

We have suggested changes in the POCSO Act, that the “pornography” word should be replaced by “CSAM” as it is the sexual exploitation of children and a serious crime. The prevailing punishment is seven years or less. We have suggested in our advisory that punishment should be increased, and Section 2, Section 14, and other relevant provisions of the POCSO Act and IT Act should be amended accordingly. It should be the responsibility of intermediaries to stop such content on their platforms as they generate revenue.

RR: On CSAM, an advisory was issued to all states and Union territories with a request for an action taken report within two months. What changes have been recommended, and why was it deemed necessary?

AKM: Everyone is aware of their responsibility in this regard and the gravity of the situation. All states and the centre is expected to take proper corrective action in this regard.

RR: Recently, in an heartbreaking incident in Ujjain, a 16-year-old was so relentlessly cyberbullied for his queer identity that he took his own life. This is just one of the many incidents which have underlined the dangers of internet bullying. Will you raise such issues and ask for action?

AKM: We strongly condemn such activity. We are against cyberbullying and online games through which child exploitation happens. Children shouldn’t have access to such games, and governments, cyber cells, and gaming companies should take action in this regard. Forensic labs and digital forensics should be upgraded and broad-based. Police and people should be made aware of the problem.

RR: Today, LGBTQ rights are in focus. NHRC has issued an advisory on transgender welfare and has called for a policy to combat discrimination. What is the Commission’s blueprint for LGBTQ rights?

AKM: At NHRC, we have a core group that deliberates on the problems of the LGBTQ+ group. We had issued an advisory for the protection of the rights of transgenders, guidelines on sex change surgery, and treating transgender children as a daughter for receiving pension and gratuity, etc. In many states, transgender children do not have succession rights in agricultural land; we proposed to rectify this. Transgenders should get loans on easy terms by subvention of interest by the government. They should get proper skill development, and monetary benefits to Garima Greh should be released on time. Separate grievance cells, old-age homes and separate washrooms for them have also been recommended in an advisory. We have recommended that name change documents should be promptly verified. These are some of the measures by which NHRC has worked for the rights of the community.

RR: Air pollution has been a thorny issue. The Supreme Court has repeatedly reprimanded the concerned states for their inability to curb pollution. Clean air is an aspect of the right to life, and NHRC also showed concern in this area. What is the panacea for air pollution? Does the Commission have the clout to enforce anti-pollution norms?

AKM: NHRC aims to curb pollution by ensuring that clean air and water are available to citizens. Many pollution issues are outstanding with NHRC, and we expect the government to act on them. The government is doing that. The right to clean air and clean water is part of the constitutional guarantee of the right to life. The 1972 Stockholm Declaration and the United Nations have declared clean air and clean water as part of people’s right to life. NHRC takes care of polluting industries by instructing the concerned state pollution control boards to do the inspection and take action. They have successfully made the polluting factories comply with norms and desist from the act. It was a proud moment for us when, in Denmark, our work was commended internationally and was made a role model for other international human rights institutions to emulate. We have also been invited as experts in the Dubai conference so that other nations’ institutions can learn from NHRC. Pollution needs a global plan, and India subscribes to such a plan of action. 

RR: In September, the Commission also directed state governments to submit a roadmap within 15 days, ensuring the end of human intervention in cleaning hazardous septic tanks and sewage cleaning. NHRC had also warned of criminal action against erring officials. What is the ground situation now? What action is being taken against non-conformers?

AKM: We have issued instructions to all states in this regard. At the same time, whenever any incident of death in sewage/septic tank cleaning is reported in the newspaper, we take suo motu cognisance of it. We issue notices, register complaints, do a hearing and recommend compensation. Earlier, there was a compensation of Rs 10 lakh in such cases. In the Balram Singh case, Justice Ravindra Bhatt gave a commendable verdict, and on the lines of our advisory, has issued guidelines for mechanical cleaning and had instructed for a roadmap. It is heartening to note that the compensation has been raised to Rs 30 lakh, and instruction for mechanised cleaning is in line with our recommendations in advisory. Even instructions for compassionate appointment of kin of the deceased are in accordance with our advisory. If authorities do not take action in this direction, we propose to take action against them.

RR: Recently, Uttarkashi saw an unprecedented crisis in which 41 workers got trapped when an under-construction tunnel collapsed. The casualty has brought to focus the occupational hazards faced by workers. What is NHRC doing in this regard?

AKM: We had gone to North East, and there, in Kokrajhar, 43 workers had died in a tunnel that was being made for the railways. We had instructed for compensation, and the workers’ kin got Rs 5 lakh each, but some amount was not paid to them.

We intervened and ensured that the required monetary relief was provided to them. This is a form of human rights violation, and we intervene in every such matter and recommend relief.

RR: Women wrestlers’ alleged sexual harassment case has brought the spotlight back on women’s exploitation in organisations and disregard of the POSH Act. In May, NHRC gave 16 non-complying sports federations a month to submit a detailed report on the status of the constitution of sexual harassment panels and steps taken to address reported violations. How relevant was the report, and what is the status currently?

AKM: On our notice of May 11 regarding the formation of the internal complaints committee (ICC), we issued notice to not only 16 sporting bodies, but a lot more. More than 52 bodies replied that either they have formed the committee or are in the process of creating it. Even the BCCI, in compliance with our directions, has formed the ICC in September. We will assess the compliance shortly. It is not only a matter of the formation of ICC, but a change in societal attitude towards women and strict enforcement of laws. Sexual Harassment of Women at Workplace Act (POSH Act) was made in 2013 after the Supreme Court framed guidelines in the Vishakha case. Any infringement of the Act must be punished. 

RR: One of the most horrendous incidents in the recent past was that of Manipur. How effective has the NHRC intervention been?

AKM: On the reprehensible Manipur incidents, we heard complainants and officials of Manipur in Guwahati and came to the conclusion that the situation has not returned to normal. We also noted that ingress was not normal on major roads and insisted that obstructions be removed, and roads be opened for travelling. We had asked for early disbursement of compensation for the dead. Out of 180 dead persons, the state has disbursed compensation to the next of kin of 93 deceased; the rest are to be paid. Also, we had instructed that Rs 10 lakh be granted as an aid to rebuild homes destroyed in the violence. We had ordered surveys to be done in six weeks and financial assistance to be given so that they could rebuild their homes and return to their place. We had requested that people living in transit camps be offered employment, education for children, and nutritious food.

RR: North East is an oft-neglected area. People from this area often face discrimination in other parts of the country. Recently, NHRC has taken the initiative to take corrective measures in this area. What are the key points of concern? How was this initiative received, and what are the bottlenecks?

AKM: North East communities are very empowered. Their society is well developed. Even at the panchayat level, they are very aware and demand their rights strongly. We have received specific complaints of police excesses and torture, and we are in the process of taking action on it. If the police are found on the wrong foot, we recommend compensation for the aggrieved. We have also directed for preserving cultural heritage from destruction in Buddhist villages.

RR: Health for all is the aim of the government, but ground-level realities are different. Despite the spread of the health services network, quacks have been operating with impunity and putting the lives of people in danger. Have any complaints been made in this regard?

AKM: We have taken note of many such incidents—some based on the complaint, some suo motu. We are taking action on it. Most incidents have been reported from Odisha, Bihar and some other states. It should be incumbent on states to provide better healthcare facilities as it is an extension of the fundamental right to life. Quality and affordable treatment should be made available to all, and the government has rightly taken policy action in this regard. Some expensive medicines and medical treatments are now affordable to low-income people.

RR: Mental health is an area of concern. How do you see the issue in human rights terms? Recently, NHRC has said most mental health establishments need to be restructured as per contemporary requirements.

AKM: Mental health issues should be managed according to the Mental Health Care Act of 2017, a comprehensive law. Unfortunately, state governments haven’t taken heed to the provisions and aims of the Act. Review Boards and mental health authorities have not been formed. Halfway homes for recovered mental health patients have not been made. The patients who have recovered from illness are not taken back by their families, and they are compelled to live in hospital; they should be provided with half way homes. We have issued instructions to the Director General of Police of all states and surveyed all 47 mental hospitals in the country. I visited four mental hospitals in Ranchi, Agra and Gwalior with members. The condition is not good. The infrastructure needs to be reoccupied and upgraded, and state governments must take care of the facilities.

RR: In September, the National Human Rights of Asia Pacific adopted the “Delhi Declaration” on human rights. How relevant is the declaration in today’s milieu, especially for India and global efforts towards human rights amelioration? How has the international community risen to the occasion?

AKM: Delhi Declaration is concerned with human rights in the world. The issue of pollution and cybercrime is a global concern. In cybercrime, earnings from criminal commerce are also a global challenge. The profits of criminal commerce are only third in quantum with that of the yearly budget of America and China. Cybercrime crosses boundaries and happens in every country. Crimes like data hacking, slavery, trafficking, and child sexual exploitation are all happening via the Internet. It needs global partnership and collaboration in crime control.

RR: At a time when NHRC is making global partners and taking commendable initiatives, the Global Alliance of National Human Rights Institutions has deferred the NHRC’s accreditation for the second time. How do you see this development?

AKM: Their main objection is that the 1993 Human Rights Act needs to be amended. This Act was assessed many times for accreditation since 1999 and was considered and accepted as compliant with the Paris principles and accorded “A” status by the Alliance during India’s accreditation process. Suddenly, in 2017, they thought that the recruitment process of members was wrong. How could it be so? India has pioneered the establishment of the Human Rights Commission. India was the first country to promulgate an Act after the Paris Principles. India formulated the Protection of Human Rights Act in 1993, the first in the world. For 20 years, the Alliance had accepted the Act of 1993. Now they are saying that applications should be invited for recruitment of members in the Commission, which means that the chief justice of India, judges of the Supreme Court, chief justices of High Courts and judges of High Courts should give application for appointment. I will never apply for any post. 

Our Human Rights Commission’s constitution is the strongest in the world. Our parliament has made one of the strongest laws on human rights. They should study our constitutional scheme and our laws. 

Another objection is that our police are not independent. That, again, is wrong. Human rights violation investigation is being done by police. The 15 crore rupees compensation recommended by us is on the recommendation of the police officers in the Investigation Division of the Commission. Our investigation wing is independent, but they presume it is not independent. Our Secretary General is a senior IAS officer who joins us after serving the government for 30 years or more. He is an expert in administrative governance, a man of impeccable integrity. He cannot interfere in the probe or complaint system, so how can it be said that the Secretary General is biased? We have raised these points in reply and expect they will come and study our system. In some countries, they induct ministers into the Human Rights Commission. In India, former chief justices and Supreme Court judges have dedicated their lives to the nation. How can a finger be raised in the process of an appointment?

RR: It is not every day that the NHRC and the Supreme Court are at odds. But during the Bengal elections, the Calcutta High Court showed its displeasure over the suo motu action of the Commission to appoint observers to probe poll violence. How would you comment on the Commission’s stand?

AKM: We welcome the Supreme Court’s decision. The Supreme Court has said what we wanted. The Court has said that the NHRC is competent to take action against poll violence. Regarding the Court quashing our order, the decision was given two days before the High Court order. It was said in the order that the State Election Commission and NHRC make efforts to curb poll violence. 

Poll violence is a fact in West Bengal. We took cognisance of the matter and said the Election Commission may work closely with us to curb poll violence. The Court also noted that the Election Commission deploy observers. We also accept that the Election Commission is empowered to deploy observers. But our decision was before the High Court hadn’t issued the order, nor was the High Court informed about our decision. Our decision was not required as the Supreme Court had already passed the verdict on the responsibility of the Election Commission to deploy observers in the poll. We are happy with the decision as we stand for violence-free poll. Impartial voting, free from violence is a human right in democracies.

RR: Political parties are announcing freebies. How do you see the issue? Should political freebies be banned? 

AKM: I don’t want to comment on any individual party or particular freebie announcements. But if we speak of Directive Principles of State Policy mentioned in Part IV of the Constitution, these are guiding principles of state governance. These principles are for uplifting people with low incomes and promoting distributive justice. If the state announces policies for improving the lot of people with low incomes, it is suitable as it is constitutionally mandated. But if the upper or financially strong class is offered freebies, it becomes debatable, and the state and courts have to ponder and decide on it.

RR: In October, the National Human Rights Commission turned 30. How do you see the journey till now and the challenges ahead? Do you feel the need for more powers for NHRC, and what is your take on inactive State Human Rights Commissions?

AKM: We don’t want any further teeth. Our notice is sufficient to stop human rights violations. Regarding whether our recommendations are binding, some High Courts have said they are binding, and some are not. However, our experience has shown that our recommendations are taken very seriously, and the compliance rate is approximately 90%, which is very good because even some court decrees still need to be complied with for 20-25 years. 

As for inactive and defunct State Commissions, we meet with State Human Rights Commissions at least twice yearly and coordinate to work together and discuss problems. There is some staff shortage in some State Commissions, but the overall infrastructure is good. In 90% of places, such a problem doesn’t exist, and the Commissions are working quite well in handling human rights issues. They are doing spot investigations, too.

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