Editor's Note: Alexandru Rares Tofan recently graduated with
an LLM in Transnational Law from King’s College London where he focused
on international human rights law, transnational litigation and
international law. He is currently an intern with the Doing Business
Right project at the Asser Institute in The Hague. He previously worked
as a research assistant at the Transnational Law Institute in London on
several projects pertaining to human rights, labour law and
transnational corporate conduct.
The National Human Rights Commission of India (NHRCI)
was established on 12 October 1993 on the basis of the Protection of Human Rights Act (PHRA) as amended by the Protection of Human Rights (Amendment) Act No
43 of 2006. It is a quasi-judicial institution whose purpose is to protect and
promote human rights, which are understood to be those rights relating to life,
liberty, equality and dignity as enshrined in the Indian Constitution and in
applicable international covenants (see s.2 (1)(d)).
The duties of the Commission include inquiring into complaints ex officio or upon request, intervening
in court proceedings relating to human rights, analysing legislative acts and
making recommendations, studying international treaties and guiding their
effective implementation, undertaking and promoting research, and raising
awareness of human rights inter alia
(see s.12 (a)-(j)).
Section 21 of the PHRA further allows for the establishment of State Human
Rights Commissions, which have largely the same mandate as the NHRCI with the
exception of section 12 (f) regarding the study of international treaties (see
also here).
There are presently twenty-five state commissions. The National Human Rights
Commission is headquartered in New Delhi.
This article analyses two types of
actions in order to observe the extent to which the NHRCI has assumed its role
in promoting access to remedy in business and human rights cases. According to
the 2010 Edinburgh Declaration of the International Co-ordinating Committee of
National Institutions for the Promotion and Protection of Human Rights (ICC),
the participation of NHRIs in the remedial process may be either direct or
indirect. As
will be shown, the National Human Rights Commission of India has been quite shy
in tackling issues of access to remedy whether directly or indirectly.
As to direct participation, the Commission is
empowered to inquire into complaints alleging violations of human rights or
negligence in the prevention of such violations by a public servant. It may do
so either ex officio, on petition by
a victim or following a court order (see s.12 (a)). While such an
inquiry is ongoing, the NHRCI enjoys all the powers of a civil court trying a
suit under the Code of Civil Procedure of 1908.
Subsequent to reviewing the factors that inhibit the enjoyment of human rights,
the Commission may recommend appropriate remedial measures (see s.12 (e)). The PHRA does not
explicitly state whether the NHRCI may entertain complaints against companies.
Yet the NHRCI’s 2012 Code of Ethics for the Indian Industry points out that
there is no apparent reason not to extend the application of s.12 (a) to
private persons (see here at page 28-29). This
analysis nevertheless seems to be at odds with the practice of the Commission,
which has been rather reluctant to exercise jurisdiction over companies. For
instance, the NHRCI has carried out numerous
investigations into allegations of
child labour and bonded labour. These investigations were however carried out
as a result of a Supreme
Court order vesting the
Commission with the power to oversee and monitor the implementation of the
Bonded Labour System (Abolition) Act of 1976. The NHRCI has also intervened in
cases relating to development-induced displacement,
particularly in the cases of Special Economic Zones in India. It did not do so
directly however. For example, upon receiving complaints about human rights
violations concerning the POSCO project on Odisha, the Commission conducted a fact-finding mission and
issued recommendations for the government on how to deal with the matter.
Another way in which the Commission has tackled corporate human rights abuses
is through its power as a civil court and through the intermediary of the State
duty to protect. The NHRCI regularly directs local authorities to inspect
businesses or enterprises against which complaints of human rights abuses have
been made.[1]
If the authorities’ report is unsatisfactory, the Commission may send its own
inspectors to conduct a fact-finding mission. In some cases, the NHRCI directs
the local authorities to pay relief. The Commission found that its sustained
interventions in these cases usually leads to corrective action.[2]
The NHRCI therefore seems to have rather opted for a back route to acting on
business-related human rights complaints. It is nevertheless difficult to see
why the Commission has shown this reluctance seeing as its mandate is rather
permissive. A more explicit mandate to
deal with corporate human rights abuses would perhaps spur the NHRCI’s direct
participation, which is overall quite lacking.
As to indirect participation, the National Human
Rights Commission of India has had a visible presence in the sphere of business
and human rights but less so in that of access to remedy. For instance, the
NHRCI commissioned a study in April 2012 concerning the development of a Code of Ethics for the Indian Industry. The purpose of this study was to “[…]
attempt to understand a range and quantity of ethical issues that reflect the
interaction of profit-maximising behaviour with non-economic concerns […]”.
Nevertheless, as far as access to remedy is concerned, this study contains
nothing more than a reiteration of the UNGPs’ third pillar (see here at page 24).
Nonetheless, the Commission has established a Core Group on Business, Environment and Human Rights, has convened no less than forty-three workshops on
the elimination of bonded labour, and it has been nominated by the Commonwealth
Forum of National Human Rights Institutions as the focal point for business and
human rights matters. It also regularly convenes conferences on business and human
rights (see for instance here and here). Most recently,
following the conference on 2 July 2018, the NCHRI committed to engage with the
Indian Ministry of Corporate Affairs in order to formulate a National Action
Plan and to conduct a base line survey on business and human rights in the country.
In conclusion, the NHRCI has a wide mandate to protect
and promote human rights but has yet to attain its full potential in ensuring
access to effective remedy. It has not made full use of its complaint
procedure, which could extend to cover human rights abuses by private parties.
Furthermore, its role as a focal point for expertise on business and human
rights seems to deal with access to remedy as a peripheral issue.