NCW: Not Quite the Commission We Sought
not quite the commission we had sought
consistently campaigning for a better ncw!
Newsletter Sep 2013 - Aug 2014
Since its inception, the National Commission for Women (NCW) has given women’s organisations many causes for concern. Over time, with its lackadaisical functioning in regards to addressing violence against women, gender inequities and injustice, women victims of state and non-state violence; and its skewed composition in terms of the Chairperson being a political nominee of the ruling government with no history of working on women’s issues - it has been felt that the NCW has largely failed to fulfil the role for which it was created.
Time and again women’s organisations have written to the NCW and other relevant offices raising their concerns. Last year too, in the wake of the insensitive mishandling of a case of public molestation of a young girl in Guwahati, women’s organisations wrote to UPA Chairperson Sonia Gandhi in the context of conduct of the Commission. Nothing came out of this and women’s organisations kept approaching the Commission for various cases without any redressal or even a minimal initiative in instances of grave violations. Even the December 2012 public outrage in Delhi and across the country did not lead to any initiatives on the part of the NCW. It was due to the pressure of public and women’s organisations that Justice Verma Committee was appointed to suggest amendments to the rape laws.
Then in March 2013, the Commission, on a one day notice, called for a ‘national level meeting’ to prepare a ‘Bill of Rights’ to end all kinds of violence on women. In response, Saheli sent a detailed letter to the Chairperson highlighting our concerns on this manner of functioning, the problems and limitations of a Bill of Rights and informed them of our decision to stay away from this process until the other issues raised by us received a satisfactory response. No reply has been received till date.
Later, on 31 October 2013, the Rajya Sabha Secretariat announced that a Parliamentary Sub Committee has been constituted to look into the functioning of the NCW. Saheli and several others sent submissions to the Committee. Even as we all await a response to our submissions, in July 2014 the MWCD, via its website has invited comments on their proposed amendments to the NCW Act!
Our submission to Parliamentary Sub Committee had strongly asked for safeguarding the political autonomy of the Commission by replacing the current nomination system with a transparent, democratic and non-partisan selection process. The current amendments suggested by the MWCD, instead of strengthening the autonomy of this apex and monitoring body, have further increased the possibility of arbitrariness in the appointments. This can only lead to a further institutionalised weakening of the NCW. In order to deepen the debate, we are sharing here both the submissions on the NCW made by many legal and women organisations and activists including Saheli.
The following is the edited version of the submission to the Parliamentary Sub-Committee, October 2013
The NCW, an apex, statutory and autonomous body established under the NCW Act, 1990 is mandated to review the constitutional and legal safeguards for women; recommend remedial legislative measures; facilitate redressal of grievances arising out of discriminations and atrocities against women and advise the Government on all policy mattersaffecting women to ensure that women’s perspectives are taken into account by policy-makers. As an investigative, advisory, monitoring and watchdog body, the NCW is expected to play a proactive role in the struggles of women against violence and injustices being done to them and be autonomous of the government in its functioning.
But as it stands today, we find that the response of the NCW to the escalating violence against women whether of normal times, i.e. everyday violence and assaults faced by women, or during caste, communal or ethnic violence, or violence perpetrated by state actors and agencies, the Commission has proved to be a colossal failure. There is an apparent lack of understanding of issues and struggles, lack of vision, and even more disturbingly an unwillingness to engage with, and act on the larger issues concerning women. Far from taking the government to task for its inactions and shortcomings, the NCW seems to be controlled by a political commitment to inaction on these issues, even when it is not actively stalling and dismantling other attempts for justice, action and change.
Women’s organisations had envisaged a pro-active and autonomous Commission, despite two important rounds of talks with women’s organisations the final Act on the National Commission that was passed by the Parliament contained many provisions that were to weaken the effectiveness of this institution. These included the method of appointing the Chairperson and members of the Commission solely by the central government, the absence of a time limit for the government to respond to the recommendations of the Commission and the appointment of a Member Secretary by the government. On the administrative side, the Commission was not granted any authority to decide on its staff requirements and the matter was left to government, who was also to determine its budgetary support.
In our submission we focus on the structural weaknesses of this institution and present a few cases to illustrate how this impinges upon its functioning, and in the final analysis, how that impacts the hopes and lives of women in India.
KEY PROBLEM AREAS
1. Constitutional Weakness: NCW has been constituted as a less powerful body than, let’s say, the National Human Rights Commission [NHRC]. Some key shortfalls that emanate from the Act:
• The NCW’s work is not informed with the developments and debates in international human rights or assessment of compliance of Indian laws with international conventions, such as the CEDAW. And no effort has been made by the government, nor have these bodies themselves pushed to update their modes of operation.
• The Act fails to define the ‘status’ of the Chairperson and members of the Commission. Whereas in the case of other Commissions, the members and Chairpersons are normally granted the rank of cabinet ministers, in the case of the NCW, the undefined ‘status’ has meant that members of the Commission have been impaired in their dealing with ministries and government officials, both with regard to fulfilment/dereliction of their duties, and even more so, in cases where accountability/ answers have needed to be sought in cases of violence by state officials/ agencies/ actors.
• Another important gap in the Act is the absence of clearly defined course of action that the NCW can take upon completion of any inquiry. For instance, the National Commission for Protection of Child Rights or the NHRC have been expressly authorised to make recommendations to the appropriate authorities, approach courts for writs, and to recommend interim relief. Absence of a clear guidance in the Act has limited the actions and efficacy of the NCW.
2. Structural Issues as impacting on the Autonomous Functioning of the Commission: The composition of the Commission is exclusively determined by the Central Government. This has resulted in politicised appointments to the Commission leading to political control over the Commission by ruling parties. Political control has come in two ways: One – the manner of its composition with political nominees of political parties becoming the chairpersons and members of the Commission and, two – in its relationship with the (former) Department and now, Ministry of Women and Child Development. Despite being statuted as an autonomous body, in terms of its financial and administrative powers, the Commission remains subordinated to bureaucracy through its absolute dependence on the government for staff requirements, financial grants, and the constant assertion by the Ministry of WCD to control the Commission. The position of a Member Secretary [MS], an officer from the MWCD has further given a handle to the power play of the bureaucracy over the Commission.
3. Lack of vision or commitment to welfare, justice and equitable rights for women. The unwillingness of the Commission to intervene effectively in many cases and take a stand against the agencies involved in such crimes is directly linked to the manner of its composition. Since no procedures to ensure a fair and meaningful selection of the Commission have been developed in over two decades, most of its members do not come with a perspective on women’s issues and are therefore distanced from women’s organisations. The NCW members and Chairpersons have been found to promote the same patriarchal values that they are expected to counter or just do not take any action because they lack the competence and commitment, or are constrained to take stand against the government that has appointed them. While working on this submission we have learnt that the present Chairperson, Mamta Sharma’s name figures in the list of 71 candidates declared by the Congress Party for Rajasthan Assembly polls. The previous Chairperson Girija Vyas was a sitting Congress MP during her entire tenure, spending most of her time in her constituency in Udaipur. An earlier Chairperson of the Commission, Purnima Advani, was close to the then ruling party, the BJP, who declared that there were no sexual crimes during the carnage against Muslims in Gujarat. We cite these few instances just to illustrate how blatantly Chairpersons of the NCW work as political nominees of the ruling parties, rather than office bearers of an autonomous institution.
A brief look at how the NCW has responded to some cases of sexual violence:
• Gujarat 2002 was the most glaring example when Muslim women faced unprecedented violence and brutalisation with the complicity of the State ruling party. NCW not only ignored it for two months but when finally it sent a fact finding team, in complete contrast to the reports of the NHRC, women’s groups and subsequent observations by the Supreme Court, it observed that violence was not targeted at a particular community. Significantly, it denied the occurrence of sexual violence! Consequently, it failed to bring justice or even support efforts at relief and rehabilitation.
• In various cases of sexual assault on women, the Commission, while taking note of these assaults have been making statements about the clothes of the victims or how they need to ‘conduct’ themselves. On January 24, 2009, when about 40 men belonging to Sri Ram Sena attacked a group of young women in a pub in Mangalore, Nirmala Venkatesh, a Commission member who carried out a fact finding mission, noted that the women’s clothes were a major provocation for the attack. She did not even meet with the victims during the course of the fact finding. She was subsequently removed for making the findings public to the media. Upon her removal from the NCW, she claimed that she had been pressurised to give an “anti-Karnataka government” report.
• In another case of public molestation of a young girl in Guwahati on July 10, 2012 the NCW failed to foreground the most critical issue – that the crime committed on a girl publically mauled by a mob of men is not even considered sexual assault under the current laws of our land. The fact finding team constituted by the NCW not only revealed the name of the victim but also held a press conference before the fact-finding report was finalised. To our utter dismay, the Chairperson Mamta Sharma’s subsequently commented, saying “Be comfortable, but at the same time, be careful about how you dress... Aping the West blindly is eroding our culture and causing such crimes to happen.”
The NCW’s track record on cases related to violence by state actors:
• In the last many years, the women organisations have taken up the issue of increasing sexual violation of women during caste and communal violence and by state agencies in conflict areas through laws like the AFSPA empowering state agencies and communities to legitimately use violence in the name of national security. Such situations make the seeking of redressal very challenging and specially call for the interventions of autonomous institutions like the NCW. In all of this, the NCW has failed miserably in its role to raise the issue of arbitrary and excessive use of powers by the state.
• In fact, the NCW has frequently denied reports of sexual violence by security forces. Even in cases where women’s groups have approached the NCW to support them in demanding justice for women who have been subjected to violence - as in the cases of tribal women in jails or police custody or women in areas designated as ‘disturbed’ and thus being governed under extraordinary laws, the Commission has been unhelpful, unresponsive and even hostile. It remained a mute spectator when the Chhattisgarh police whisked away Sodi Shambho, the crucial witness to Gompad massacre, from right under its nose in New Delhi to some place where she still remains untraced three years later. It is still to take any action on the human rights violation of Irom Sharmila, under virtual solitary confinement by the Government for being on hunger fast against the AFSPA. The NCW failed to take suo moto interest in the case, or even visit her to determine the facts for themselves. In Khairlanji, as a Dalit mother and daughter were stripped naked, dragged from their hut and hacked to death by members of the dominant castes of their village, the NCW did not take it up as an issue of gendered caste violence on women of dalit community. In October 2012, due to protests by women’s groups over its silence on the matter, NCW was compelled to reopen the case of custodial torture of Soni Sori from Chhattisgarh who had been arrested for alleged Maoists links and subjected to sexual custodial torture. After consistent pressure from women’s organisations, the NCW sent a team to investigate her claim of torture and also to look into the conditions of women undertrials at Raipur Jail. The Commission is still to make its report public.
• These cases are merely the tip of the iceberg of large-scale violations in these regions, gruesome details of which are available in numerous findings by women and human rights groups on which practically no action has been taken. The Commission’s silence on this gendered violence by the state agencies is a negation of the whole history of women’s movements in these regions. It signals that the institution is unwilling to take a stand against the government’s (of whichever shade) official position. There has also been a total silence on the incidents of violence against Dalit and Adivasi women, and women as part of peaceful democratic protests and movements across the country.
• The recent spate of communal violence in Muzaffarnagar during September 2013 is another case in point where the chairperson of NCW while focusing on rehabilitation aspects, have totally ignored the cases of sexual violence against women where women were able to identify the perpetrators. It is expected of the Commission’s Chairperson to address this issue, to seek immediate action from the state government to ensure that justice is done to these women.
4. Issues of Jurisdiction that need to be urgently addressed. The members of the Commission, even if they are willing to act, are unable to do so because the Commission’s reports and recommendations are not binding on the government. There is no time frame to take action on its recommendations by the government. There is also an absence of specification of steps that the NCW can take upon completion of inquiry that has limited the NCW to provide legal aid services to women who file complaints before them.
5. Ad hoc work culture impairs efficacy. Internally, too, the Commission has been unable to develop a system of work or a work culture. Because of the political composition of the Commission, its members are found to be wanting in their understanding and accountability towards women’s issues. They are generally ill-informed or uninformed about the issues concerning women. The day to-day functioning of the Commission and the quality of its Annual and many other reports is substandard in terms of their content and language.
Time and again women’s groups have criticised the ad hoc manner in which meetings are called by the Commission, about the lack of adequate notice especially to groups from outside Delhi, the trend of selective invitations, minutes not being sent to all the participants, absence of proper planning of the agenda, not responding to letters written or issues raised etc. A consistent and organic coordination with women’s organisations is lacking.
We raised these issues with the NCW when it started its new agenda of framing a Bill of Rights in March 2013 asking them to address these before any new agenda is taken up by the Commission but have not got any response from it.
6. When it comes to engaging with law reform processes, the NCW has been lacking in its understanding of basic issues in particular laws. This has happened in the case of Prevention of Sexual Harassment at the Workplace Bill, where the original draft did not include domestic workers in its ambit. The government often does not consult the NCW before a Bill is placed in the Parliament, which happened in the case of DV on Women Bill, which included regressive provisions. The Commission also shows no will to formulate a holistic understanding of sexual violence against women in the wake of increasing caste and communal violence, and to include this in the CLA Bill pending before it since the early 1990’s.
7. In the perception as well in the functioning of the Commission, core area of its work has been to look into individual cases of violence against women. At present, the NCW receives more than 15,000 complaints per year. The Commission did not seem to have much clarity about the kind of cases it would deal with, who would co-ordinate its work, or what skills, space and infrastructure were needed for this type of work. In view of the huge number of cases, the counselors complain of the workload and pressure to perform in terms of number of cases they deal with. There is an emphasis on closing cases. The approach in cases of marital discord and domestic violence has been majorly on reconciliation rather than redressal. The Commission has the power of a Civil Court that enables it to summon a person or examine the person on oath, requisition documents and receive evidence on affidavits, bring parties in a dispute face to face and try to resolve the case through mediation. These powers at times are able to help women as the name of the NCW sometimes works. But in the absence of enforcement powers, the Commission has not been able to go far.
8. The creation of multiple agencies for women by the Government like the National Mission for Empowerment of Women creates confusion about the overlapping jurisdiction of these agencies and their relationship with the NCW.
9. We would like to add that the situation is same and sometimes even worse in the case of State Commissions by way of their status, powers, lack of staff and infrastructural facilities and composition. Some states still do not have Commissions, despite the fact that the NCW Act of 1990 stipulated their constitution.
It is clear that the time has come for some radical changes at the NCW. As women’s groups we have been campaigning for the same almost from the very beginning. We demand the government to do the following:
1. Take steps to safeguard the political autonomy of this nodal women’s rights institution by replacing the current nomination system with a transparent, democratic and non-partisan selection process for members and Chairperson of the Commission. This process needs to be determined by GOI in consultation with women’s rights groups to ensure that the members and Chairperson of the NCW are women with the necessary commitment, experience and sensitivity to uphold women’s rights. The selection committee must include representatives from opposition parties, as well as the government, and (women) members of marginalised communities. This is critical because much of the violence against women comes from the state/state actors, members of dominant castes and communities, both within and outside so-called situations of conflict.
2. The Commission must also be empowered to undertake independent investigations into violations of women’s rights as also to see the implementation of its recommendations. They must also be vested with the autonomy to appoint their own staff and consultants. There is an urgent need to re haul the NCW Act in order to infuse autonomy, transparency and independence into the foundation and functioning of the NCW.
A comprehensive review must be initiated on the performance of the Commission in terms of - its role in addressing systemic gender-related social, economic and legal issues (including law reform and police reform); its ability to ensure accountability for violations of women’s rights; its ability to further the cause of justice for women – with a view to proposing institutional reform of this apex body.
Submission to the Ministry of Women and Child Development on proposed amendments to the structure of the National Commission for Women. July 15, 2014
The key points of concern, elaborated in the submissions, are as follows:
• Proposed amendments to the NCW Act do away with the existing basic minimum qualifications required to appoint someone to the Commission, leaving it entirely to the discretion of the Central Government.
• Proposed amendments to the NCW Act insist only on a union civil service officer to serve as Member-Secretary of the Commission.
• Any changes to the NCW Act should work in the direction of strengthening the autonomy of the Commission, and making it independent from the executive. The proposed amendments work in diametrically the opposite direction.
The proposed amendments seek to enhance powers without bringing about a measure of independence, and while simultaneously removing qualifications and criteria for nomination. The changes are of considerable concern, as they whittle down qualifications and retain subservience of the Commission to the Central government.
The proposed amendments to the NCW Act address effectiveness of the Commission by enhancing the powers available to the Commission. What remains unaddressed is the foundational question of independence and sector specialisation that are integral to the functioning of a specialised human rights body for women. No changes have been suggested towards making the selection process inclusive and transparent; or towards strengthening the qualifications for nomination of members to ensure capacity and credibility to carry out its mandate.
The selection process remains entirely in the hands of the Central government despite directions of the Delhi High Court in two separate judgments (Association for Development v. Union of India, 2010 and 2013, in the context of NCPCR, also under the MWCD). It is alarming that whatever little existed by way of sector specific qualifications and criteria for the Chairperson, five members and the Member-Secretary, have been removed in the proposed amendment. Strengthening the powers of the Commission without ensuring transparent selection and removal process; or ensuring that the qualifications of its members are commensurate with the mandate of the Commission undermines the very purpose for establishing the NCW. The changes are not just piecemeal, but they fail to consider directions of the Supreme Court of India, or the Paris Principles Relating to the Status of National Institutions (1993), that sets the international benchmark for the functioning of human rights institutions. One of the most crucial aspects of their functioning under the Paris Principles is their structural, operational and financial autonomy from the government, to avoid political interference in appointments as well as in functional and administrative matters.
Any changes in the body that was constituted as a result of a demand by the women’s movements must be deliberated with the wider civil society groups, women’s rights activists, using comparative lessons that help improve it. We recommend that the following aspects, all of which are core to sectorial expertise and structural autonomy, be considered and integrated into the proposed amendment.
• Mandate and Objectives: The NCW was established under the NCW Act of 1990, with a mandate to review the Constitutional and legal safeguards for women, recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women. It was established 3 years before the Paris Principles of 1993 were adopted, which specifies that all domestic human rights institutions integrate compliance with human rights standards within their guiding legal framework and mandate. The NCW Act, however, does not refer to the CEDAW or any other human rights treaties that India has ratified and undertaken to implement to enable implementation of women’s equality. The NCW’s mandate needs to be updated to integrate into its framework compliance with India’s human rights obligations on women’s equality.
• Selection Process: The Chairperson, and all the members of the NCW are selected by the Central Government, compromising the autonomy of the members of the NCW. We believe that to make the selection procedure more Saheli Newsletter Sep 2013 ~ Aug 2014 representative and independent, there has to be a selection committee consisting of members of the Central Government, the Opposition and representatives from Civil Society Organisations working with women’s rights.
• Qualification of Chair/ members/ Member-secretary: The composition of the NCW comprises of a Chairperson and 5 members nominated by the central government. The 5 members are supposed to belong to the social welfare sector, with experience in ‘law or legislation, trade unionism, management of an industry or organisation committed to increasing the employment potential of women, women’s voluntary organisations (including women activists), administration, economic development, health, education or social welfare’. The increased powers proposed by the amendments, require strengthening of qualifications to ensure sector expertise to carry realise the mandate of the Commission. However, under the proposed amendments, the criterion for selection of the members is done away with, leaving it entirely to the discretion of the Central government, without guidelines on who qualifies for the posts.
Further, the Commission also has a Member Secretary who has to be either a civil servant or an expert in the field of management and social movements. The proposed amendment does away with this stipulation, and allows only a civil servant to be the Member Secretary of the Commission. The proposed changes bestow quasi-judicial powers to the Commission, with the amendment to section 10(4) of the Act seeking to increase the enforcing powers of the Commission, through power to impose fines and issue arrest warrant for defaulting against its orders. It is of utmost importance that the qualifications of persons constituting the Commission be strengthened rather than removed all together as is being proposed.
• Operational Autonomy: Section 5(1) of the NCW Act establishes the Central Government as the provider of officers and employees for the functioning of the Commission. The proposed amendment adds some teeth to the investigative powers of the Commission by providing for the services of a police officer not below the rank of DGP for purposes of investigation. However, the amendment does not address the complete dependence that the Commission has on the Central Government for providing staff, instead of having the autonomy to choose its own employees.
• Financial Autonomy: Under Sec 11 of the NCW Act, the commission receives an appropriation from the Parliament which is then routed through the government by way of grants and made available to it. While the Commission can spend the money as it thinks fit for the purpose of discharging its functions, the purse strings are held by the government.
The proposed amendments seek to compromise the capacity of the Commission to deliver its mandate, and compromises its autonomy. The women’s movement looks forward to a stronger but a more competent autonomous body that contributes towards realising women’s rights and gender justice. We call upon the Ministry of Women and Child Development, to hold consultations with civil society actors, women’s groups, lawyers, academics, social workers to deliberate on changes that will strengthen the autonomy and capacity of the NCW to function, at the earliest.