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'Law can't be bent to curb terrorism'

June 20, 2005 14:43 IST
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National Human Rights Commission Chairman Justice Adarsh Sein Anand, 69, was in Geneva a few weeks ago to attend the 61st session of the United Nations Commission on Human Rights.

As chairman of the Commission, Justice Anand intervened in the cases of the sectarian violence in Gujarat. He confronted the Gujarat government and the police to bring justice to the victims. While his predecessor Justice J S Verma condemned the Gujarat carnage, Justice Anand has concentrated on the rehabilitation of victims of the 2002 Gujarat riots.

The former Chief Justice of India, who hails from Jammu and Kashmir, studied law at Lucknow University and went to London for higher studies.

At the United Nations Commission on Human Rights, he urged States not to violate human rights in the name of curbing terrorism.

A soft-spoken man with an all pervasive smile, he spoke to Ehtasham Khan in Geneva after delivering his speech.

There is a criticism that many of NHRC's staff come from the government, even the Intelligence Bureau. Don't you think it affects the working of the Commission as an independent human rights watchdog?

No, none of the senior officers holding important positions come from the Intelligence Bureau. As far as the Act is concerned, it provides for persons from government to come on deputation and senior officers do come on deputation.

But it is not the government that selects the staff. We ask for a panel from the government. They send us the panel of persons who are entitled to be considered. Then we make our selection. Their presence does not affect the credibility (of the NHRC).

The government is sending you the names so political parties may influence the selection of NHRC staff.

As a matter of the fact, that is the scheme of the Act itself.

Don't you think this system needs to be changed for the betterment of the Commission?

We have sought amendments on many issues, but these amendments are pending for the last four years.

Is it because successive governments do not take the Commission seriously or is it because they do not want to empower the Commission?

It is difficult for me to answer this question. You should ask the government.

Is the government really concerned about the NHRC to make the system of aministering human rights stronger and more transparent in India?

I think the government cannot take the NHRC for granted any longer. They are concerned about the role of the NHRC, more particularly the extent of confidence that the citizenry has reposed in the NHRC.

You see in 1996, there were just about 20,000 complaints. Last year we received 74,000 complaints. That shows the acceptability and the faith reposed in the NHRC.

That is our biggest strength. Our credibility and the faith reposed by civil society and the support of the media. That makes the government not take us for granted.

P C Sharma, the former director of the Central Bureau of Investigation, has been made a member of NHRC. One of your members went to the Supreme Court against this decision (The apex court latter cleared Sharma's appointment). Don't you think people from the police who do not have any human rights background should not be included in the NHRC?

No comment.

The NHRC annual report, which gives details of the human rights record in the country, first goes to the home ministry and is then tabled in Parliament. The ministry takes about one year to table it in Parliament. The process is delayed unnecessarily making the report and the recommendations meaningless. Are you not concerned about it?

It is very unfortunate that they don't table it in Parliament straight away. The home ministry has to give the action taken report (along with the NHRC report) in Parliament. But they should not be taking months and months for this.

More than a year.

Yes. We are still one year behind.

So do you have plans to address this issue?

We have told them (the home ministry) a couple of times. In our annual report last year and this year too, we have said please for goodness sake place it (the annual report) straightaway before Parliament for the parliamentarians to have a look at it. Let them point out what we need to do that we haven't done.

Also, the civil society has the right to know what we are doing. We have also said if you are not willing to place it before the House straightaway then give us the right to make it public.

In the absence of the home ministry's action taken report, why don't you make the annual report public and let the civil society discuss and debate it?

According to the rules, we cannot do it.

The NHRC's budget is allocated by Parliament, then why is there so much of dependence on the home ministry?

There is no dependence on any ministry. But there has to be a nodal ministry which will send our reports to Parliament. We cannot do it directly. Otherwise, they (the government) have no say in the NHRC. Nor will I ever allow any kind of interference, whether it is the home ministry or the prime minister's office or anybody.

Looking at the overall human rights picture in India, there is not much coordination between the NHRC and state human rights commissions. We hardly see state human rights commissions doing anything. Do you have plans to make them more viable?

You are quite right. As far as the state human rights commissions are concerned, let me tell you there are just 14 states that have state human rights commissions. Out of those 14, five are without any chairperson. So imagine the importance the states are giving (human rights). I am trying to do capacity building. I convened a meeting of all the chairmen and secretaries of state human rights commissions last year in Delhi. I am planning another meeting this year. I am trying to do it in various ways. Whenever the state commissions ask us in terms of participation, we do it.

At the United Nations, Mexico is pushing a resolution on anti-terror laws and torture. The resolution is aimed at restricting States from violating human rights in the name of curbing terrorism. India is not just opposing it but is trying to derail the resolution. Why didn't you take a stand?

When it is between States, the NHRC does not come into way.

But you have the mandate to monitor what India is doing in international forums.

Having said that, as far as the NHRC stand on torture is concerned, it cannot be allowed in any civilised society for whatever purpose. We have even gone to the extent to say that if a person is tortured in custody it is a big blot and the flag of civilisation must fly at half mast.

At the same time we have asked the government to sign the United Nations Protocol on torture. They are not signing it. And this despite the fact that in the Supreme Court in the D K Basu and Neelawati Behra case -- I authored both these judgments -- I have said that the reservation that they (the government) has made is irrelevant now. This is because the courts are awarding compensation. Despite that they are not signing it (the UN protocol on torture).

But you didn't criticise India on this issue while addressing the United Nations.

No, we have said this is our stand.

Will you be asking the government to sign the protocol on torture?

We have been asking the Government of India every time.

Do you think torture has become a problem in India? It is used as a counter-terrorism measure.

I think you heard my speech. Terrorism is an assault on human rights. There cannot be any justification or alibi for terrorism. Terrorism must be curbed by a very strong hand. But at the same time while curbing it you cannot curb the civil liberties of citizens. The rule of law cannot be bent in the name of curbing terrorism.

Two special UN rapporteurs have criticised India and raised concern about the condition of Dalits. They say Dalits are being discriminated and kept out of the mainstream. What is your opinion on this?

There are problems and we have conducted a study on Dalits. We have forwarded the report to the Government of India. We hope our recommendations will be implemented. That will go somewhat in favour of Dalits.

The NHRC was widely praised for its effort to bring justice to the victims of the Gujarat riots. But the Zahira Sheikh case seems to be going nowhere. It has created a lot of confusion. What is your take on that?

The case is subjudice, so no comment.

Zahira Sheikh and her supporters say the NHRC's role should also be probed.

She has made no such comment. Anyway as I said the case is subjudice.

Why is the NHRC not proactive in pursuing so many (Gujarat riot) cases other than those highlighted by the media? It seems the NHRC has slowed down.

No. After the amicus curiae was appointed by the Supreme Court, the Supreme Court ordered fresh investigations into our 2,000 cases. But again these cases are subjudice, so no comment.

The Supreme Court has appointed a Court Committee for Gujarat riot cases. Are you filing any fresh affidavit?

We have not been asked so far.

Are you planning to do it on your own?

We will not do it on our own unless we are asked to do it.

It means you are not proactive and helping to slow down the process.

That's an absolutely wrong perception. As a matter of fact, it goes to the NHRC's credit that we were the first to prepare a report (the Gujarat riots). And that report is still being considered. And follow-up action is being taken by the judiciary. We have faith in the judiciary and we know ultimately justice will be done.

Image: Uday Kuckian
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