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Has the Supreme Court in Manipur Fake Encounters Case dealt a severe blow to the NHRC or is it a wake up call?

The Dialogue

The Supreme Court acted positively in its quest to explore the truth behind the ‘culture of impunity’ in Manipur. In an order dated 14th July, 2017, it directed the Director of the Central Bureau of Investigation to constitute a five-member Special Investigation Team (“SIT”) to inquire into alleged illegal extra-judicial killings committed by the Manipur police, army and other security forces. The inquiry is to be conducted in cases which have prima facie been adjudged as illegal either by an inquiry under the Commission of Inquiry Act, 1952, or by a judicial inquiry commission High Court or by the NHRC.

Significantly, in the same order, the Bench also observed that “the protection and promotion of human rights is one of the most important aspect of the rule of law”, while questioning the ability of a ‘toothless’ NHRC, in its present situation, to effectively fulfil that mandate.

NHRC’s position – We are helpless!

Before the Court, NHRC expressed its helplessness to effectively deal with complaints received by it, primarily due to the Central Government not providing adequate resources and staff. It submitted before the Court a comparison between its Investigation Division’s sanctioned strength and workload during 2014-15 with that in 1995-96. Whereas the sanctioned staff was 59 in 1995, it was reduced to 49 in 2014. On the other hand, the total annual complaints received by the Commission rose a staggering 1455% from 7,843 in 1995 to 1,14,167 in 2014!

The Commission also blamed the state governments (including Manipur) for neither complying with its successive guidelines on the procedure to be followed in cases of encounter killings (“Guidelines”), nor following its directions and recommendations in proceedings before it. In fact, the Court distressingly noted that even NHRC’s directions to provide the next of kin with compensation, after prima facieascertaining the encounter to be fake, was not always followed by the Manipur state government.

Finally, NHRC also contended that the Protection of Human Rights Act, 1993, (“PHRA”) itself creates operational hurdles.

Supreme Court’s views – NHRC is a Toothless Tiger but critical to the rule of law

Although the Supreme Court frustratingly had to concede that NHRC has been rendered ‘toothless’, it still reiterated its critical role as a “protector, advisor, monitor and educator of human rights” in India. Moreover, the Court also stressed upon the important place that NHRC occupies in maintaining the rule of law in India. The Bench reminded Union of India that it is obligated to provide adequate staff and officers to NHRC under Section 11 of PHRA and its failure in doing so would make it “impossible for the NHRC to function effectively and would also invite avoidable criticism regarding respect for human rights in our country”.

Without specifically giving directions, the Court rapped the state government when it observed that, “unless the communications and Guidelines laid down by the NHRC (which have been prepared after wide ranging and detailed consultations) are adhered to, the respect and dignity due to the dead and the human rights of all (of) us will remain only on paper”.

Through its observations, the Court has clearly taken a guiding stance, rather than meting out specific time-bound directions or analysing the relevant legal provisions of the PHRA, in addressing NHRC’s challenges.

Have NHRC’s efforts in Manipur been effective?

Interestingly, Supreme Court’s interim judgment of 8th July 2016 as well as the recent order of 14th July 2017 refrain from directly criticising NHRC’s performance in handling the violations in Manipur. Perhaps, the Court wanted to attract the focus of Central and State Government to the institutional importance of NHRC and their respective roles in assisting it for the sake of human rights and democracy in India.

In any case, whether on account of being a toothless body or due to its own apathy, NHRC, as a body entrusted with protecting human rights, could have surely done more to stop the violence and provide assistance for the families of the people killed in Manipur. The question persists – what has the NHRC really done in Manipur over the years and what is it prepared to do now to salvage its credibility?

In Manipur, NHRC limited itself to handling individual complaints against alleged fake encounters carried out by security forces, that too mostly post-2008 from its office in New Delhi. It was only in 2013 that an NHRC team visited Manipur, on the request of the Supreme Court, to collect testimonies and conduct camp sittings, by which time Manipur had already gone through a massive upsurge in alleged fake encounters during the period 2006-10.

Clearly, NHRC did not have the institutional capacity or the assistance of the state government to effectively handle the large number of cases of alleged illegal encounters in Manipur.. In such a hostile environment, it must have realised soon that the criminal justice mechanism in Manipur was in shambles, especially with respect to extra-judicial killings allegedly perpetrated by police, army and security forces, since even conducting magisterial inquiries and other steps, as laid down in its Guidelines, were not followed in most of the cases.

The problem in Manipur, as observed by the Court, was that the criminal justice delivery system was stuck and timely, fair and impartial investigation made impossible, especially, in cases where the alleged perpetrators were members of the security forces. Under such circumstances, could the NHRC have done more to bring to light the importance of the only accountability procedure (its own Guidelines) and pushed the Governments or approached the Supreme Court for appropriate orders?

The present matter was brought to the notice of the Supreme Court in 2012 by the petitioner organisation EEVFAM, which is an association of widows of men killed in Manipur. Notably, post-2012, since the Supreme Court admitted the present matter, there was a sharp decrease in extra-judicial killings in the state. Maybe, if the NHRC had taken the lead in approaching the Supreme Court, many lives could have been saved.

Way forward for NHRC in Manipur

Pursuant to the Supreme Court’s order, NHRC has to extend its full cooperation to the proposed SIT by making available all records and assistance. In addition to that, it must also expeditiously take a decision on all matters relating to alleged illegal extra-judicial killings in Manipur presently pending before it.

However, it needs to go beyond these measures. Supreme Court in the Manipur case has affirmatively recognised that Manipur underwent a violent period where the disconnect between the citizens and the criminal justice delivery system has led to an environment where various facets of the fundamental right to life have been deprived. According to Mr. Babloo Loitongbam, Executive Director of Human Rights Alert (which has been assisting the petitioners in the matter), the vortex of violence has economically, socially and psychologically scarred more than just a generation of young widows, children, elderly and youth – it has had a devastating impact on the Manipuri society.

This is where NHRC could extend its expertise and work with the local organisations to engage in peace-building efforts and provide assistance to the affected families. It can bridge the disconnect by adopting a multi-pronged strategy, with the cooperation of all stakeholders (including other commissions), aimed at strategic litigation, creating rights literacy and awareness on various related issues to shed light on the ground realities. Unfortunately, in the past, NHRC did not seem to possess any strategy at all to efficiently deal with systematic violations of such nature in a conflict region neither did it ever view the situation from a peace-building perspective – this needs to change.

What also needs to change is its continuous bemoaning echoes of lack of support and powers. NHRC’s past members and officials had found novel ways to overcome many of the same challenges. Mr. Satyabrata Pal, a former Indian diplomat and a former member of the National Human Rights Commission, wrote that when he was a member proceeding on the extra-judicial killings in Manipur, his bench tactfully dealt with the vexed question of bar on investigating army personnel and on the position of encounters conducted by ‘joint teams’. In fact, although there is much to be criticised about NHRC’s one tracked complaint handling strategy in Manipur; it is also true that due to the painstaking efforts of its members who presided over the proceedings and in the face of utmost difficulties managed to ascertain the illegality of many extra-judicial killings, the Supreme Court’s order directing SIT inquiry has reinvigorated the hope for prosecution in these cases.

NHRC needs its members and officials to urgently recognise the importance of its role in Manipur at the moment by revitalising the institution’s outlook on peace-building in Manipur and uplift its credibility and respect as an institution mandated to protect and promote human rights in India.