Model Answer
0 min readIntroduction
The National Human Rights Commission (NHRC) of India, established in 1993 under the Protection of Human Rights Act, is mandated to protect and promote human rights as enshrined in the Universal Declaration of Human Rights and as guaranteed by the Constitution of India. However, a significant handicap to its effectiveness lies in its jurisdictional limitations, specifically its inability to directly investigate allegations of human rights violations committed by the armed forces. This exclusion, stemming from concerns regarding national security and operational effectiveness, creates a gap in accountability and raises concerns about potential impunity for security personnel. The issue has been a subject of debate, particularly in regions experiencing conflict and insurgency.
Reasons for Jurisdictional Limitation
The exclusion of the armed forces from the NHRC’s direct jurisdiction is rooted in several factors:
- Sovereign Immunity & National Security: The primary rationale is the need to maintain operational effectiveness and national security. Direct investigation by a civilian body is perceived as potentially undermining military discipline and strategic decision-making.
- Armed Forces Tribunal (AFT): The establishment of the Armed Forces Tribunal in 2007 provided a specialized judicial forum for addressing grievances and disputes within the armed forces, including allegations of misconduct. This was seen as an adequate mechanism for internal accountability.
- Concerns over Interference: There were apprehensions that NHRC investigations could interfere with ongoing military operations and intelligence gathering.
- Constitutional Framework: Article 370 (now abrogated) and special provisions in certain states further complicated the issue, with the armed forces operating under specific legal frameworks.
Implications of the Limitation
The jurisdictional limitation has several significant implications:
- Accountability Gap: It creates a situation where allegations of human rights violations by the armed forces are primarily investigated by internal mechanisms, potentially leading to bias and lack of independent scrutiny.
- Erosion of Public Trust: The exclusion can erode public trust in the accountability mechanisms for security forces, particularly in conflict-affected areas.
- Impunity Concerns: The lack of independent investigation can contribute to a culture of impunity, where perpetrators of human rights violations are not held accountable.
- International Scrutiny: India faces international scrutiny regarding its human rights record, and the NHRC’s limitations are often cited as a concern.
- Impact on Conflict Resolution: Lack of accountability can exacerbate tensions and hinder conflict resolution efforts.
Existing Mechanisms & Their Shortcomings
While the AFT exists, its effectiveness in addressing human rights violations has been questioned.
| Mechanism | Strengths | Weaknesses |
|---|---|---|
| Armed Forces Tribunal (AFT) | Specialized expertise in military law, faster dispute resolution. | Limited scope for investigating systemic violations, potential for bias, lack of transparency. |
| Court of Inquiry (COI) | Internal investigation mechanism within the armed forces. | Often lacks independence, limited access to information, findings not always made public. |
| NHRC (Indirectly) | Can recommend to the government to investigate, can intervene through judicial proceedings. | Lacks direct investigative powers, relies on government cooperation. |
Way Forward
Addressing this limitation requires a multi-pronged approach:
- Amend the Protection of Human Rights Act: Expand the NHRC’s jurisdiction to include the armed forces, with appropriate safeguards to protect national security.
- Establish Independent Oversight Mechanism: Create an independent body with the power to investigate allegations of human rights violations by the armed forces, comprising civilian and military experts.
- Strengthen AFT: Enhance the AFT’s capacity to investigate and prosecute human rights violations, ensuring transparency and independence.
- Promote Human Rights Training: Provide comprehensive human rights training to all personnel in the armed forces.
- Greater Transparency: Ensure greater transparency in investigations and prosecutions of alleged human rights violations.
Conclusion
The jurisdictional limitations faced by the NHRC in investigating the armed forces represent a significant challenge to ensuring accountability for human rights violations in India. While concerns regarding national security are legitimate, they should not come at the expense of fundamental rights. A balanced approach, involving legislative amendments, strengthening existing mechanisms, and promoting a culture of respect for human rights within the armed forces, is crucial to bridge the accountability gap and uphold the principles of justice and fairness. The need for a robust and independent oversight mechanism remains paramount.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.