A state commission for sexual and gender minorities in Tamil Nadu

The Tamil Nadu State Planning Commission recently presented a draft version of the LGBTQIA+ policy. In addition to various policy measures aimed at advancing the inclusion of LGBTQIA+ people, the draft also recommends the establishment of a state commission for sexual and gender minorities. The commission is proposed to have a statutory mandate to “determine, investigate and enforce the law, schemes, and programs as per state laws and policy.” Instinctively, the idea of a state commission with quasi-judicial powers seems promising. Yet, on closer inspection, this idea must be approached with caution in light of the state of existing human rights commissions in India.

The deeper malaise in the functioning of human rights institutions in India is well-known and has been extensively documented by civil society organizations. In 2016, justice HL Dattu, the erstwhile chairperson of the National Human Rights Commission (NHRC) referred to the institution as a ‘toothless tiger’. The Supreme Court recalled justice Dattu’s assessment in its 2017 interim judgment while noting the failure of the NHRC in responding to the cases of extrajudicial killings in Manipur. While epithets like ‘toothless tiger’ and ‘silent spectator’ have been used primarily against the NHRC, the situation of State Human Rights Commissions and 180+ statutory human rights commissions at the national and state level in India (generally called NHRIs) is even worse.

Globally, the discourse on NHRIs essentially began with the UN General Assembly’s adoption of the Paris Principles in 1993 which provides for a set of minimum standards to be complied with by every NHRI. The Paris Principles ensure the independence, efficiency, and performance of NHRIs by requiring the government to ensure that the institutions are pluralistic with diverse representation and have a broad mandate, statutorily guaranteed independence, adequate resources, and the ability to exercise powers such as conducting an independent investigation.

In 1993, the government enacted the Protection of Human Rights Act, 1993 (PHRA, 1993) which led to the establishment of NHRC. The statute also empowers the states to set up NHRIs in states. In addition to PHRA 1993, the Indian Parliament has enacted several legislations that provide for an institutional framework at the national and state level to protect and promote the human rights of specific groups- women, children, persons with disabilities, minorities, Scheduled Castes, Scheduled Tribes, safai karmacharis. In general, the institutional framework adopted by the 180+ statutory is similar to that of NHRC and they are empowered by the Constitution or respective legislations to investigate human rights violations, inspect state institutions to ensure compliance with prescribed standards, advise the legislature on law-making, participate in the policy-making process and conduct research.

The foremost responsibility of NHRIs is to independently investigate complaints of human rights violations. However, countless studies have called out how NHRIs have failed to discharge their mandate given the lack of adequate resources and infrastructure, inability to follow up on its recommendations, and poor cooperation with civil society.

In their annual reports, NHRIs boast of having an impeccable record of disposal of cases. On closer inspection, it has been found that many of the cases are dismissed on procedural grounds without examining the merits. In cases where any action is taken, recommendations made by NHRIs are considered obligatory and thus, ignored by governments. In this regard, the Madras High Court in 2021 ruled that recommendations by State Human Rights Commissions (SHRCs) under PHRA are binding on the government.

Pendency has continued to be a major issue for most NHRIs in India given the shortage of staff. The India Justice Report 2022 showed that 43% of staff positions were lying vacant across 25 SHRCs. The efficacy of NHRIs has been hampered on account of meagre budgetary allocations. Paris Principles require NHRIs to ensure that appointments are done as per “pluralist representation of civil society.” In reality, only 17% of women are appointed across NHRIs in India. Making matters worse, there is no data regarding the caste or religious composition of NHRIs.

It is no surprise that the NHRC’s accreditation has been deferred on two occasions in the last decade by the Global Alliance of National Human Rights Institutions (GANHRI), a UN-affiliated body based in Geneva that investigates the compliance of NHRIs with the Paris Principles.

As Tamil Nadu prepares to set up another NHRI, it is instructive to recall the Paris Principles and address the systemic challenges which have hampered the effectiveness of existing NHRIs. Given the fact that the proposed mandate of this commission related to concerns of sexual and gender minorities, it is particularly important to ensure diversity in the appointment processes. Otherwise, this new NHRI will also end up being another symbolic gesture.

This article is authored by Prashant Singh and Meghna Sharma, co-founders, NHRI Tracker, a data-driven project focused on the effectiveness of NHRIs in India.