Human rights

This article has been written by Ziya ur Rahman Karimi of Jamia Millia Islamia, New Delhi. This article provides a detailed analysis of the Protection of Human Rights Act, 1993.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

As a member of the human family, every individual must have some rights against the state or other public authorities, and these rights are known as “human rights”. Human rights are as old as the ancient doctrine of natural rights, which is based on natural law. The term “human rights” as we know it today is a relatively new concept. They are derived from international charters and conventions enacted after World War II.

In India, the Protection of Human Rights Bill, which had already been passed by both Houses of Parliament, got the assent of the President on January 8, 1994. It was thus enacted as The Protection of Human Rights Act, 1993.

Historical background of Protection of Human Rights Act, 1993

The first documented use of the term “human rights” can be found in the United Nations Charter, which was established after World War II in San Francisco on June 25, 1945. This charter was not legally binding. It actually defined the ideal, which would later be developed by many agencies and entities. In December 1948, the United Nations General Assembly took a significant step to ensure the protection of human rights and adopted the Universal Declaration of Human Rights. But the problem was that the UN had no mechanism for enforcing this declaration because it was not a legally enforceable covenant. 

The United Nations General Assembly aimed to address the issue by adopting two covenants for the protection of human rights in December 1965:

  1. the Covenant on Civil and Political Rights,, and
  2. the Covenant on Economic, Social, and Cultural Rights. The first established legally enforceable individual rights, while the second urged states to put them into effect through legislation. 

The two Covenants entered into force in December 1976, after being ratified by the required number of member states. Following that, at the end of 1981, many states, including India, ratified the Covenants. As a result, the ratifying states became legally bound by these covenants.

In the early 1910s, India was globally criticized for the violations of human rights by its armed forces in the state of Jammu and Kashmir. The USA and various other countries from the western world pressured the Indian government to take cognizance of the cases of human rights violations in the country. In addition to the international pressure, there was a considerable demand on the national level for such a law that would deal with the various issues related to human rights violations.

Therefore, considering the demand at the national level and as a constructive reply to the criticism of foreign countries, the Human Rights Commission Bill was first introduced in the Lok Sabha on May 14, 1992. After a deliberate discussion, the Bill was referred to the Parliament’s Standing Committee on Home Affairs.

However, in response to international and local demands, the President of India promulgated an Ordinance on September 27, 1993, that established a National Commission on Human Rights. Following that, on December 18, 1993, the Lok Sabha passed a Bill on Human Rights to replace the ordinance, and the Bill became an Act on January 8, 1994. This Act came into force on September 28th, 1993, as provided in Section 1(3) of the Act.

Thus, the commission was established by an ordinance of the President on September 27, 1993. Justice Ranganath Misha, the former Chief Justice of India, was the first chairperson of the commission, appointed on October 12, 1993.

Need for the Protection of Human Rights Act, 1993

  1. India is a member of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which have been ratified by the United Nations General Assembly on December 16, 1966. The Constitution substantially protects the human rights enshrined in the aforementioned Covenants. Therefore, it was the need of the hour to enact this law.
  2. There was a significant increase in the country and abroad on issues relating to human rights. Considering the changing social realities and emerging trends in the nature of crime and violence, the government reviewed the existing laws, procedures, and systems of justice administration with a view of bringing greater accountability and transparency to them, and developing efficient and effective methods of dealing with the situation. As a result, the government realized that the enactment of a law that specifically deals with the issues of human rights is now necessary.
  3. Numerous conversations were held at various fora, including the Chief Ministers’ Conference on Human Rights, seminars hosted throughout the country, and talks with leaders of major political parties. The viewpoints expressed in these discussions strongly urged the enactment of this legislation.

Scope of the Protection of Human Rights Act, 1993

Originally, it was provided in Section 1(2) of the Act that this Act applies to the whole of India and, in the case of Jammu and Kashmir, it applies to the union list and concurrent list only. However, this proviso has been omitted by Act 34 of 2019, and effectively, now this Act extends to the whole of India.

Salient features of the Protection of Human Rights Act, 1993

  • To protect human beings from violations of their rights. “Human Rights” include the right to life, liberty, equality, and dignity, as guaranteed by the constitution.
  • To protect these rights from abuses of power committed by state bodies.
  • To establish an organization for the advancement of existing living beings and the development of their personalities.
  • To provide effective and necessary actions for securing remedies in the event of a violation of rights.
  • The most significant feature of the Act is that it establishes the National Human Rights Commission, State Human Rights Commissions, and Human Rights Courts to prevent and prosecute serious human rights violations.

Important provisions of the Protection of Human Rights Act, 1993

The important provisions of the Act could be divided into four parts as follows:

  1. Definition of “Human Rights” [Chapter I, Sec. 2 of the Act]
  2. NHRC: Constitution, Functions, Power, and Procedure [Chapters II, III, & IV, Sec. 3-20]
  3. SHRC:  Constitution, Functions, Power and Procedure [Chapter V, Sec. 21-29]
  4. Human Rights Courts [Chapter VI, Sec. 30 & 31]

All of the topics listed above, including the relevant sections and case laws, will be thoroughly covered in the following.

Part I of the Act: Definition of Human Rights

Section 2(d) of the Act defines human rights as individual rights to life, liberty, equality, and dignity guaranteed by the Constitution or recognized in international covenants and enforceable by Indian courts. The abovementioned definition, however, limits the scope of the functions of the National Human Rights Commission. As a result, India ratified only the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. However, the covenants are not directly enforceable as law in Indian courts. Therefore, under the Protection of Human Rights Act 1993, the definition of human rights is firmly limited to the fundamental rights included in Part Ill of the Constitution, which are enforceable by Indian courts.

Case laws related to the definition of “Human Rights”

Beenu Rawat v. Union of India (2013)

Facts

In this case, the members of the Aam Aadmi Party, while protesting against the non-registration of FIR in of rape case, were lathi-charged by the police, which resulted in injuries to the protesters.

Issue

Whether the use of force exercised by the police was unjustified and excessive and whether the act of the police violated the fundamental right to life of dignity.

Decision

The Supreme Court transferred this case to the National Human Rights Commission and in view of Section 12(a) of the Protection of Human Rights Act of 1993, the commission was asked to investigate the alleged violation of the fundamental right to life and dignity of the protesters. The court further clarified that the definition of “human rights” is broad enough to include rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution.

P.T. Munichikkanna Reddy v. Revamma (2007)

In this case, the Supreme Court declared that the right to property is now recognized to be a human right as well as a constitutional or statutory right. Human rights have traditionally been understood as individual rights, including the right to health, the right to a livelihood, the right to shelter and employment, and so on, but they are now taking on a more complex character. The right to property is likewise regarded as an important part of the new dimension. Therefore, even an adverse possession claim must be viewed from that perspective.

Facts, issues, and judgments related to this case are given below.

Facts

The appellants purchased the entire land (5 acres 25 guntas), by two different sale deeds of 1934 and 1936. However, when the appellants’ possession was sought to be disturbed by the respondent in 1988, they filed a suit claiming their title on the basis of adverse possession, stating that they had perfected their title by adverse possession as they had been in open, continuous, and hostile possession of the property, adversely to the interest of the respondent-defendant for the past 50 years, exercising the absolute right of ownership in respect of the said property. The trial court decreed the suit.

On appeal, the High Court reversed the judgment of the trial court, holding that an important ingredient of adverse possession had not been satisfied. The High Court held that important averments of adverse possession, viz., to recognise the title of the person against whom adverse possession was claimed, and to enjoy the property adverse to the title-holder’s interest after making him aware that such enjoyment was against his interest, were absent both in the pleadings as well as in the evidence. The High Court also held that the finding of the trial court that possession of the plaintiffs became adverse to the defendants between 1934 and 1936 was an error apparent on the face of the record.

Issue

Had the High Court overlooked the concept that acknowledgment of the owner’s title was not a prerequisite for claiming ownership by prescription?

Held

The Supreme Court dismissed the appeal and awarded Rs 25,000 as damages. The court further ruled: “Adverse possession, in one sense, is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession.”

Part II of the Act: National Human Rights Commission (NHRC)

Chapters II, III, and IV of the Act deal with the constitution, composition, and functioning of the  NHRC.

Constitution of the NHRC

The constitution of the National Human Rights Commission (NHRC) is dealt with in Chapter II of the Act. Section 3 (1) of the Act provides that the Central Government shall establish the National Human Rights Commission.

Composition of the Commission

Section 3(2), (3) & (4) of the Act provides for the composition of the Commission. Details are as follows.

Chairman of NHRCRetired Chief Justice of India
Member 1One who is/has been a Judge of the Supreme Court of India
Member 2One who is/has been a Chief Justice of a High Court
Three Members (out of which at least one shall be a woman)They are to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
Deemed Members (Ex-officio Members)Deemed members are chairpersons of the following national commissions: National Commission for Backward ClassesNational Commission for MinoritiesNational Commission for Protection of Child RightsNational Commission for the Scheduled CastesNational Commission for the Scheduled TribesNational Commission for WomenChief Commissioner for Persons with Disabilities

Click here for a detailed list of current members of NHRC.

Headquarters of NHRC [Section 3 (5)]

Section 3(5) of the Act provides that Delhi shall be the headquarters of the Commission. However, the Commission may, with the prior approval of the Central Government, establish offices in other places in India.

Appointment of NHRC Members [Section 4]

Section 4 deals with the appointment of the Chairperson and other members. As per this section, a selection committee will recommend the candidates to the President.

The Selection Committee includes:

  • Prime Minister (Chairman)
  • Speaker of the Lok Sabha
  • Union Home Minister
  • Deputy Chairman of the Rajya Sabha
  • Leaders of the Opposition in both Houses of Parliament

This section further provides that a sitting Supreme Court Judge or Chief Justice can not be appointed without consultation with the Chief Justice of India.

Case Law Related to the Appointment of Members of the NHRC

People’s Union for Civil Liberties v. Union of India (2005) was a landmark judgment. In this case, the procedure for the appointment of members of the Commission and various other issues related to the NHRC was discussed. Details of the case are as follows.

Facts

The central government appointed an ex-senior police officer who has served as the director of the CBI and was also Vice President of (Asia) Interpol, as a member of the NHRC.

The petitioner filed a writ petition and challenged this appointment.

The central government was respondent 1 in this case, and the police officer who was appointed was respondent 2.

According to the petitioner, the installation of a person who served in the police force as a member of the NHRC violates the terms of the Act, as well as the fundamental goals and objectives for which the Commission was established.

Therefore, such an appointment would impact the status of the Commission as well as its international recognition as a human rights agency.

Issues
  1. The question that arose before the Supreme Court was whether Section 3(2)(d) of the Act required any interpretation or construction which would exclude police officers from becoming members of the NHRC.
  2. The second issue was that there was a statutory error in the appointment of the second respondent because one of the six members of the selection committee did not attend the meeting.
  3. The third issue was that since the “Paris Principles” (these principles were subsequently endorsed by the UN Human Rights Council and the UN General Assembly) prohibited the appointment of a civil servant like a police officer to such a Commission, the appointment of the second respondent, who is a former police officer, is also violative of international covenants.
  4. The fourth issue was that the second respondent was appointed without consulting the Chairperson of the Commission, as has been the practice since the establishment of the Commission. As a result, the appointment is invalid as per the law.
Decision

The Supreme Court dismissed the petition, holding that the clear text of Section 3(2)(d) leaves no space for interpretation because the text is quite clear. It simply means that any two people with knowledge of or practical expertise in human rights issues are eligible to serve in the Commission. This section’s straightforward language cannot be corrupted by any conclusion based on public perception or prejudice. This section does not exclude any group of people as long as they have knowledge of, or practical experience with, human rights issues, as required by the Selection Committee.  Because there is no exclusion in Section 3(2)(d) of the Act and the language is unambiguous, the Court cannot read an exclusionary clause to exclude police officers from serving on the Commission irrespective of the fact that the Act does not provide for the same.

The quorum for selection: A review of the Act reveals that no quorum has been established for the selection, that no meeting has been scheduled, and that no specific procedure has been established. Consultation by circulation is not prohibited by the Act. In such a case, the absence of one of the six members of the Selection Committee would not invalidate the decision of the other five members. Section 4(2), on the other hand, expressly states that no appointment of a chairperson or a member shall be void only because of a vacancy on the committee. There is no statutory mistake in the appointment of the second respondent because the Prime Minister, the Speaker of the House of People, the Minister in charge of the Ministry of Home Affairs in the Government of India, the Leader of the Opposition in the House of People, and the Deputy Chairman of the Council of States all agreed on it.

Declarations in international fora are not binding: The Supreme Court ruled that neither the Paris Principles nor the subsequent UN General Assembly Resolution can be brought to the level of a covenant in international law. Because the NHRC is governed by an Act of the Indian Parliament, neither the Paris Principles nor the UN General Assembly Resolution can overrule the provisions of the Protection of Human Rights Act.

Consultation with the Chairperson of NHRC for the appointment of Members of NHRC: The court ruled that there is no obligation under the Act for the Selection Committee, which is composed of high-ranking officials in this country, to communicate with the Chairman of the Commission before appointing a member. When a statute vests a function in a committee composed of such high dignitaries holding high constitutional positions, it would be unconstitutional to put the necessity of consultation with the Chairman of the Commission into the statute. The provision for the appointment of the Chairperson and other Commission members envisions a self-contained system, and no other mandatory requirement can be imported into the Act where none exists.

Tenure of office of the members [Section 6]

Section 6 of the Act provides that the Chairperson or any other member shall hold office for a term of 3 years or until they attain the age of 70 years, whichever is earlier and shall be eligible for re-appointment.

Removal of the Chairperson or any other member [Section 5]

Section 5 of the Protection of Human Rights Act, 1993, lays down the procedures and grounds for the removal of any member of the Commission.

As per this section, the Chairperson or any other member of the Commission may be removed from office only by the President on proven misbehavior or incapacity. In this case, however, the President is required to refer the matter to the Supreme Court for investigation. And, if the Supreme Court upholds the cause of removal and advises the President, the Chairperson or a member of the NHRC can be removed.

Further, the President, under the provisions of this section as mentioned above, has the authority to remove the Chairperson or any other member if he:

  • is adjudged insolvent; or
  • engages in any other paid employment outside the duties of his office during his term of office; or
  • is unfit to continue in office due to infirmity of mind or body; or
  • is of unsound mind and is so declared by a competent court; or
  • is convicted and sentenced to imprisonment for an offense that, in the President’s opinion, involves moral corruption.

Functions and powers of the Commission

As per Section 12 of the Act, the functions and powers of the National Human Rights Commission are as follows:

  • NHRC can investigate any complaints related to violations of Human Rights or negligence in the prevention of such violations by a public servant; either suo-moto or after receiving a petition.
  • NHRC can interfere in any judicial process involving any allegation of human rights violation.
  • It has the authority to visit any prison or institute under the control of the state governments to observe the living conditions of inmates. It can also make recommendations to the authorities based on its observations.
  • NHRC can examine the articles of the Constitution that protect human rights and make recommendations for punitive measures.
  • Examine the causes that obstruct the enjoyment of human rights, including acts of terrorism, and make recommendations for proper remedies.
  • Study human rights treaties and other international instruments and make suggestions for their effective implementation.
  • The Committee undertakes and promotes research in the field of human rights.
  • Human Rights Literacy and awareness of the safeguards available for the protection of these rights are promoted by NHRC in various sectors of society through different media, seminars, publications, etc.
  • Encourage non-governmental organizations and institutions that work in the field of human rights;
  • The National Commission for Human Rights may perform any other function that it considers necessary for the promotion of human rights.

Section 13 of the Act provides that the NHRC while investigating complaints under this Act, has all of the powers of a civil court trying a case under the Code of Civil Procedure.

According to Section 14, the Commission is authorized to employ any officer or intelligence agency of the Central Government or any State Government to conduct an investigation related to the inquiry.

Section 20 provides that the Commission is obliged to submit an annual report as well as special reports to the Central Government and state governments.

Case Law related to functions and powers of NHRC

In Paramjit Kaur v. State of Punjab(1999), the Supreme Court of India laid down some guidelines and rules regarding the functions and powers of the Commission. Details of the case are as follows.

Facts

The Union of India has filed a petition to the Supreme Court, seeking clarification of an order issued by the same Court in a Writ Petition, in which the National Human Rights Commission was asked to investigate the blatant violations of human rights on a large scale in the state of Punjab, as revealed in the CBI Report submitted to this Court (Supreme Court) in the aforementioned writ petitions.

Issue

When the matter was brought before the Commission, preliminary objections were raised regarding the jurisdiction of the Commission, citing its statutory obligations and limitations, including the prohibition on inquiring into any matter after one year from the date on which the act of the violation of human rights is said to have been committed, as set out in Section 36(2) of the Protection of Human Rights Act, 1993.

Held

The Supreme Court, in the exercise of its jurisdiction under Article 32 of the Constitution of India, entrusted the National Human Rights Commission to deal with certain matters in the manner indicated in the course of its order. All authorities in the country are bound by the directions of the Supreme Court and have to act in aid of the Supreme Court. The National Human Rights Commission is no exception. The Commission would function pursuant to the directions issued by the Supreme Court and not under the Act under which it is constituted. In deciding the matters referred to it by the Supreme Court, the National Human Rights Commission is given a free hand and is not circumscribed by any conditions. Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature not covered by enactment or law, and thus, acts sui generis.

Human rights Violations: landmark judgments by NHRC

The following are some of the important cases in which the NHRC intervened and formed a positive approach to prevent human rights violations.

Case One: Gujarat Riots

In this case, the National Human Rights Commission took suo-moto cognizance in response to media reports about the finding of a mass grave in Lunawada village, Panchmahal District, Gujarat. The Commission asked for a report on the matter from the State Government and the CBI.

In Gujarat, communal violence on a large scale was recorded in February and March 2002. Approximately three thousand members of the minority Muslim community were massacred, and the property was destroyed.

The Gujarat state government and police failed to take the necessary measures to avoid violence and failed to provide protection, security, and justice to Muslim minority community victims. The NHRC initiated a suo-moto inquiry into these incidents and instructed the state administration to report on the steps taken to restore calm in Gujarat. The Commission also petitioned the Supreme Court of India on behalf of the Gujarat riot victims.

Case two: Punjab mass cremations

The Supreme Court referred this case of gross violation of human rights to the NHRC. The Commission found that the bodies of these people were burned by state authorities in contempt of cremation procedures for unidentified bodies. The Commission held that the act violated the dignity of the dead and harmed the emotions and sentiments of their kin, who would have wanted to perform their last rites. Therefore, the Commission held the State of Punjab accountable and responsible for the infringement of the right to life. Accordingly, the Punjab government was directed by the NHRC to deposit Rs. 18,39,25,000/- within three months for distribution to the next of kin.

Besides this, the National Human Rights Commission also awarded compensation of Rs 1.75 lakh to the next of kin of the 1051 victims of this case of mass cremation in the state of Punjab.

Case three: starvation deaths in Orissa

The NHRC investigated complaints of starvation deaths in the Koraput, Bolangie, and Kalahandi Orissa districts.

On December 23, 1996, the Indian Council of Legal Aid and Advice and others filed a writ petition with the Supreme Court of India under Article 32 of the Constitution. On July 26, 1997, the Supreme Court of India concluded that the petitioner could approach the NHRC since this case is pending with them and they are likely to make a ruling. Recognizing the urgency of the situation, the Commission moved quickly to develop an interim measure for a two-year term and suggested that the Orissa State Government form a committee to review all land concerns. They dispatched a team to provide an update on the current situation and also appointed a special rapporteur to examine relief and rehabilitation activities.

In January 2004, the Commission held a conference with recognized specialists on the subject to discuss issues concerning the right to food. The Commission has authorized the establishment of a Core Group on the Right to Food, which will provide advice on issues raised and recommend suitable programs for the Commission to implement. In the context of India, this decision clearly confirms that economic, social, and cultural rights are recognized by the courts and the Commission in the same way as they recognize civil and political rights.

Case four-encounter deaths in Andhra Pradesh

In this case, the Andhra Pradesh Civil Liberties Committee (APCLC) complained to the NHRC regarding encounter deaths in which police killed people suspected of belonging to the People’s War Group. The police claimed that the deaths occurred as a result of armed militants resisting arrest, while the Andhra Pradesh Civil Liberties Committee insisted on extrajudicial killings that amounted to unjustified and unprovoked murders. They provided information on 285 similar cases. The NHRC reviewed six incidents involving the deaths of seven people and issued guidelines describing the procedure in relation to encountering deaths for the first time in India in 1997.

Case five: deaths due to silicosis

In this case, the National Human Rights Commission raised great concern about the deaths of tribals from Alirajpur Tehsil, Jhabua District, Madhya Pradesh, who worked as laborers in the quartz crushing plants of Godhra, Gujarat, from silicosis/silicotuberculosis. The Commission got informed of this tragedy after reading a news story titled “Death Stalks Godhra Again, in the Form of Silicon Dust” in the Indian Express on September 19, 2007. According to the report, these tribal people were exposed to silica dust at their workplaces with no protection. As per the report, around 2001 tribals have died in the last four years. The report added that those laborers who returned to their communities in Jhabua and died of silicotuberculosis in their villages received neither compensation nor retribution because they lacked formal proof to process compensation claims.

After going through the report, the Commission directed that the same be forwarded to the Chief Secretaries of Gujarat as well as the District Collectors of Panchmahal and Jhabua, for a factual report within four weeks. The Commission also dispatched a team from the Investigation Division to conduct an on-the-spot investigation.

Part III of the Act: State Human Rights Commissions (SHRC)

Chapter V, Sections 21–29, contains the provisions regarding the constitution, composition, and functioning of the SHRC.

State Human Rights Commissions are statutory, non-constitutional bodies (at the state level) involved in protecting human rights and examining violations that occur within their respective states, just like what the National Human Rights Commission does at the national level.

West Bengal was the first state in India to constitute a State Human Rights Commission, It was established on 31st January 1995. Now, As per the official information, 26 states have constituted the State Human Rights Commission. 

Click here for current updates and details regarding the chairpersons, members, and other officials of SHRCs in various states.

Constitution of SHRC

According to Section 21 of the Act, the State Government may establish a body known as the Human Rights Commission of that state.

Case Law related to the constitution of SHRC

In D.K. Basu v. State of W.B. (2015), the Supreme Court held that constituting a state Human Rights Commission is mandatory and does not depend upon the discretion of the state government.

Composition of SHRC

Section 21 of the Act provides that the State Human Rights Commission shall consist of the following:

ChairpersonFormer Chief Justice or a Judge of a High Court
Two membersA Judge of a High Court or District Judge in the State with at least seven years of experience as a District Judge.A person who has knowledge as well as practical experience in human rights issues.

This section further provides that the Secretary shall be the Chief Executive Officer of the State Commission.

Appointment of members of SHRC

Section 22 provides that the Governor shall appoint the Chairperson and other members of the State Commission on the recommendation of a committee consisting of the Chief Minister, the Speaker, the Minister in charge, etc. A sitting High Court judge or a district judge could be appointed only after consulting with the Chief Justice concerned.

Tenure of the office of members

Provisions regarding the term of office of the chairperson and other members of the state commission are contained in Section 24, and it is the same as it was in the national commission. (3 years or 70 years of age, whichever is earlier, and they are also eligible for reappointment).

Scope and jurisdiction of SHRC

Subject to the principle of res judicata, the State Commission is authorized to investigate violations of human rights relating to any of the entries in Lists II and III of the Seventh Schedule of the Constitution of India.

Two or more state governments may, with the consent of a chairperson or member of a state commission, appoint such a chairperson or member of another state commission simultaneously if he consents to such appointment.

Functions and Powers of SHRC

In Bihar State Electricity Board v. Bihar State Human Rights Commission (2012), the Patna HC observed that the State Human Rights Commission has the same functions and powers within the jurisdiction of the State as the National Commission has under Section 12 of the Act.

Part IV of the Act: Human Rights Courts

Chapter VI of the Act, comprising Sections 30 and 31, makes the provisions relating to the creation of Human Rights Courts in each district.

Section 30 of the Act authorizes the State Governments, with the consent of the Chief Justice of the High Court, to establish Human Rights Courts by Notification, specifying for each District a Court of Sessions to be a Human Rights Court. In line with Section 31 of the Act, the State Government shall appoint a public prosecutor or an advocate who has been in practice as an advocate for at least seven years for the purpose of conducting matters in the Human Rights Courts. Such a person would be known as a “Special Public Prosecutor.” It is, however, to be noted that it is not mandatory for the States to create Human Rights Courts in each and every district, as Section 30 of the Act expressly uses the expression “the State Government may set up the Courts.” However, in order to provide a speedy trial of offenses arising out of violations of human rights, it is desirable that states, particularly those where human rights violations take place in large numbers, should establish such courts.

Amendments to the Protection of Human Rights Act, 1993

The Act has been amended four times till now. The list of amending acts is as follows:

The Protection of Human Rights (Amendment) Act, 2000

The act was amended to provide the power to make rules retrospectively. Section 40A was incorporated into the Act to provide for the same.

The Protection of Human Rights (Amendment) Act, 2006

In this amendment Act, a few changes were made to the structure of SHRC, like reducing the members of SHRCs and changing the eligibility criteria for membership. Likewise, this amendment Act gave some more powers to the NHRC, like the power to visit jails even without intimation to the state governments.

This amendment Act also provided that the Chairperson of the National Commission for the Scheduled Castes and the Chairperson of the National Commission for the Scheduled Tribes shall be deemed to be members of the NHRC.

Click here for the detailed list of the sub-sections that were added through this Amendment. 

The Protection of Human Rights (Amendment) Act, 2019

This amendment Act provides that a person who has served as a Supreme Court Judge, in addition to the Chief Justice of India, is qualified to be chosen as Chairperson of the Commission. It also provides to increase the Members of the Commission from two to three, including one who must be a woman,, and further includes include Chairperson of the National Commission for Backward Classes, Chairperson of the National Commission for Protection of Child Rights,, and the Chief Commissioner for Persons with Disabilities as deemed Members of the Commission.

The term of the Chairperson and Members of the Commission and State Commissions was lowered from five to three years by this amendment Act, and a person who has been a Judge of a High Court was also made eligible to be selected as Chairperson of the State Commission.

Lacune in the Protection of Human Rights Act, 1993

There are some shortcomings in the Act. They are as follows:

  • The NHRC cannot penalise authorities that do not carry out its orders.
  • If a complaint is filed more than one year after the event, the NHRC cannot investigate it.
  • This Act makes no mention of whether judges (NHRC members) should have a proven record of human rights activism or experience or qualifications in the area.
  • Dealing with human rights violations by the armed forces, the commission can simply ask for a report from the government and then provide recommendations.
  • There is no statutory requirement to include academics, representatives of NGOs,, or members of civil society that have contributed towards the enhancement of human rights.
  • It can only ask the authorities to approach the higher courts to provide relief to the victims. Within one month, the competent authority must either execute its recommendations or express its reasons for not doing so.
  • If private entities violate human rights, the NHRC has no jurisdiction.
  • It can only provide recommendations for remedies but cannot enforce them.

Suggestions

The 1993 Act compels all states to establish SHRCs and HRCs in their territories in order to achieve the goal of timely redress and remedy for all. The issue to examine is that the law does not specify how Human Rights Commissions should handle such complaints. The act makes no mention of the jurisdiction of such courts over charges alleging violations of human rights. This ambiguous and unclear aspect must be resolved by lawmakers as soon as possible so that the protection provided to human rights and the consequences of existing legislation are not frustrated.

Conclusion

People in India are now well aware of their constitutional rights, and this is because of the enactment of the Protection of Human Rights Act, 1993, and the establishment of the National Human Rights Commission (NHRC). The State Human Rights Commissions are also working along the same lines as the National Human Rights Commission. However, it still demands that the Special Courts/Human Rights Courts, as defined in Section 30 of the PHR Act, be continued in order to provide a speedy trial for offenses resulting from violations of human rights. Apart from that, human rights commissions in India need to be revamped if they are to truly protect human rights in the country. If the decisions and recommendations of the commission were made enforceable by the government as well, their efficacy and authority would be greatly enhanced. Misuse of laws by authorities is widely recognized as the root cause of human rights violations. Therefore, the NHRC should be provided more powers for the speedier disposal of cases.

FAQs

  1. How are human rights defined in the Protection of Human Rights Act, 1993?

According to Section 2 of the Protection of Human Rights Act, 1993 (hereafter referred to as “the Act”), “human rights” refer to the rights of the individual to life, liberty, equality, and dignity guaranteed by the Constitution or embodied in International Covenants and enforceable by Indian courts. The terms “International Covenants” refer to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which were ratified by the United Nations General Assembly on December 16, 1966.

  1. What powers have been vested with the Commission relating to inquiries?

The Commission shall have all of the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, while examining complaints under the Act, including, in particular, the following:

  • Summoning and enforcing witnesses to appear and questioning them under oath;
  • Document discovery and production;
  • Taking affidavit evidence;
  • Demanding a public document or a copy of one from any court or office;
  • Appointing commissions to examine witnesses or documents;
  • Any other matter that may be specified.
  1. Does the Commission have its own investigation team?

Yes, the Commission has its own investigation committee, led by a Director General of Police, to look into complaints of human rights violations. The Commission has the authority under the Act to use the services of any officer or investigation agency of the Central Government or any State Government. In a number of cases, the Commission has collaborated with non-governmental organizations on the investigation.

  1. Is the Commission autonomous?

Yes, the autonomy of commission arises, inter alia, from the method of appointing its Chairperson and Members, their fixed tenure and statutory guarantees, the status they have been accorded, and the manner in which the Commission’s staff- including its investigative agency- will be appointed and conduct themselves. Section 32 of the Act specifies the Commission’s financial independence.

The President appoints the Chairperson and Members of the Commission based on the recommendations of a committee composed of the Prime Minister as Chairperson, the Speaker of Lok Sabha, the Home Minister, the leaders of the opposition in Lok Sabha and Rajya Sabha, and the Deputy Chairman of the Rajya Sabha as Members.

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  1.  How does the Commission inquire into complaints?

While examining complaints of violations of human rights, the Commission may ask for information or a report from the Central Government, any State Government, or any other authority or organization subordinate to it within the time specified by it; provided, however, that if the information or report is not received within the time specified by the Commission, the Commission may proceed to investigate the complaint on its own; on the other hand, if the information or report is received within the time specified by the Commission, the Commission may proceed to investigate the complaint on its own.

  1. What steps are open to the Commission after the inquiry?

Step – I: If the inquiry reveals the commission of a human rights violation or negligence in the prevention of a human rights violation by a public servant, the Commission may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission deems appropriate against the concerned person or persons.

Step – II: Appeal to the Supreme Court or the respective High Court for any required directives, orders, or writs.

Step – III: Recommend to the concerned government or authority that the victim or members of his family be granted such urgent interim treatment as the Commission considers appropriate.

  1. What procedure is prescribed under the Act with respect to armed forces?

The Commission may seek a report from the Central Government on its own initiative or in response to petitions filed with it alleging human rights breaches by military forces. After receiving the report, it may decide not to pursue the complaint or, in some cases, offer recommendations to the government. According to the Act, the Central Government must notify the Commission of any action taken in response to the recommendations within three months, or within such further time as the Commission may allow. It is also provided that the Commission shall publish its report, as well as its recommendations to the Central Government and the measures taken by that government in response to those recommendations. The petitioner will also receive a copy of the published report.

  1. Can the complaint be in any language?

They may be in Hindi, Urdu, English,, or in any language included in the Eighth Schedule of the Constitution. The complaints should be self-contained. The filing of a complaint is free of charge. When it considers it necessary, the Commission may ask for more information and affidavits in support of claims. The Commission may, at its discretion, accept telegraphic complaints as well as complaints transmitted via FAX or email. Complaints can also be made via the mobile telephone number of the Commission.

  1. What kinds of complaints are not entertained by the Commission?

Ordinarily, the Commission does not entertain complaints of the following types:

  • complaints pertaining to events that occurred more than one year prior to the filing of the complaints;
  • Matters that are under-judice;
  • matters that are vague, anonymous, or pseudonymous; d) Which are of frivolous nature
  • pertaining to service matters.
  1. What is the responsibility of the authorities/states/central governments to which reports/recommendations have been sent by the Commission?

In the case of general complaints, the authorities/State Government/Central Government must respond to the Commission’s report and recommendations within one month, and in the case of complaints involving the armed forces, within three months.

  1. What are the kinds of issues on which complaints have been received?

The Commission has dealt with a diverse variety of complaints since its establishment. The following are the most common types of complaints that the commission has received in the recent period:

  • Failure to take action (in respect of administration)
  • Unlawful detention
  • False implication
  • Custodial violence
  • Illegal arrest
  • Custodial deaths
  • Encounter deaths
  • Harassment of prisoners; jail conditions
  • Atrocities on SCs and STs
  • Bonded labour, child labour
  • Child marriage
  • Communal violence
  • Dowry death or its attempt; dowry demand
  • Abduction, rape and murder
  • Sexual harassment and indignity to women, exploitation of women
  • Numerous other complaints which cannot be categorized, have also been taken up.
  1. What has been the focus of the work of the Commission?

Inquiring into complaints is one of the major activities of the Commission. Individual complaints have led the Commission to the generic issues involved in violations of human rights in several instances, allowing it to approach the relevant authorities for systemic improvements.

However, the Commission actively seeks out matters of relevance in human rights, either on its own initiative or when brought to its attention by civil society, the media, concerned individuals, or expert consultants. Its primary objective is to strengthen the extension of human rights to all sectors of society, particularly disadvantaged groups.

  1. What are the major initiatives of Human Rights Commissions?
  • Civil Liberties.
  • Review of statutes such as the Terrorist and Disruptive Activities Act and the Prevention of Terrorism Bill (draught), 2000, were reviewed by the commission.
  • Human rights protection in regions of insurgency and terrorism.
  • Guidelines to prevent police officers from abusing their power to arrest.
  • Formation of Human Rights Cells in State/City Police Headquarters.
  • Measures to check custodial deaths, rape, and torture.
  • Commitment to the Convention Against Torture, as well as Additional Protocols to the Geneva Conventions.
  • The adoption of a refugee law for the country is now being discussed.
  • Systemic improvements in police, prisons, and other detention centers.
  • Take a visit to prisons, mental hospitals, and other such institutions.
  • Review of legislation, implementation of treaties, and international human rights instruments.
  • Economic, Social & Cultural Rights.
  • The abolition of bonded labour and child labour issues concerning the right to food.
  • Prevention of maternal anemia and congenital mental disabilities In the child.
  • Human Rights of Persons Affected by HIV/AIDS.
  • Public health as a human rights issue.
  • Rights of the vulnerable groups.
  • Rights of women and children, minorities, scheduled castes, and scheduled tribes.
  • Rights of people displaced by mega projects.
  • People affected by severe disasters such as the Orissa super-cyclone and the Gujarat earthquake.
  • Under a Supreme Court mandate, they monitor the functioning of the mental hospitals at Ranchi, Agra, and Gwalior, as well as the Agra Protection Home.
  • Action Research on Trafficking.
  • Promotion and protection of the rights of the disabled.
  • Rights of Denotified and Nomadic Tribes.
  • Welfare of the destitute widows of Vrindavan.
  • Elimination of manual scavenging
  • Promotion of human rights literacy and awareness in the educational system and in society more widely.
  • Human rights training and education for the military forces and police, as well as for public officials, civil society, and students.
  • Research through well-known academic institutions and NGOs on various issues relating to human rights.
  • Research on various human rights issues through well-known academic institutions and non-governmental organizations (NGOs).
  • Consultation with NGOs and experts/specialists on issues related to human rights.
  1. Who is the current chairman of the National Human Rights Commission of India?

The current chairperson of the National Human Rights Commission is Shri Justice Arun Kumar Mishra, who entered office on June 2, 2021.

  1. Where is the commission (NHRC) located and what are its contact numbers?

National Human Rights Commission

Manav Adhikar Bhawan Block-C,

GPO Complex, INA, New Delhi-110023

Facilitation Center (Madad): (011) 24651330, 24663333

Fax No. (011) 24651332

Web site: www.nhrc.nic.in

References


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