This Article is written by Ruhi Kanakia, from ILS Law College, Pune, pursuing B.A. LLB. The article explains the development, structure, as well as the functions of the country’s National Human Rights Commission.

Introduction

‘To deny people their human rights is to challenge their very humanity.’

-Nelson Mandela

The pre-eminent role that the Universal Declaration of Human Rights played in igniting the flare of ‘humanity’ and ‘human rights’, in conjunction with every facet that fell under its ambit, found its way to kindle the same spirit in India, in 1993. The United Nations, in 1991, established key principles to form a concrete base for Human Rights’ institutions, to further the interest and ensure uniformity in its execution. In pursuance of the same, it concluded the Paris Principles on Human Rights, which led to the birth of the ‘Protection of Human Rights Act, 1993’ [‘Act’] in India. In accordance with Section 3 of the said Act, the State is obliged to form a ‘National Human Rights Commission’ [‘NHRC’] to ensure accurate protection, representation, and furtherance of Human Rights in our nation. 

The NHRC – What is it?

The NHRC, alias, the ‘watchdog of human rights’, is considered to protect the rights of the people enshrined in the constitution, in addition to those rights assumed to be inherently available to them, for being human. The Commission was established on 12th October 1993 and sits at its headquarters, in New Delhi, India. For 27 years it has served the needs of the people of India, to protect the ‘rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants.’ 

Composition of the Commission

The NHRC, as stated above, avails its functions, composition, powers, and authority from the Act of 1993. The constituting body in the NHRC is expressed under Section 3 (2) to Section 3 (4) of the Act. 

Sr. No.	Compositional Break-down	Pre-requisites and Eligibility	Term of Office
1	1 [One] Chairperson	Has been the Chief Justice of the Supreme Court of India	Term of 5 [Five] years, or till the date he attains 70 [Seventy] years of age; whichever is earlier.
2	1 [One] Member	Is or has been a Judge of the Supreme Court	Term of 5 [Five] years, eligible to re-term for another 5 [Five] years.
3	1 [One] Member	Is or has been the Chief Justice of a High Court in India	Term of 5 [Five] years, eligible to re-term for another 5 [Five] years.
4	2 [Two] Members	Persons having knowledge of practical experience in handling matters of human rights	Term of 5 [Five] years, eligible to re-term for another 5 [Five] years.
5	4 [Four] Members	Chairpersons of- National Commission for Minorities National Commission for the Scheduled Tribes National Commission for the Scheduled Tribes National Commission for Women	Term of 5 [Five] years, eligible to re-term for another 5 [Five] years.
6	1 [One] Secretary-General/ Chief Executive Officer	As appointed by the Centre/State

 

Appointment of the Members in the NHRC

The appointment and removal of the commission is done on the basis of Sections 4 and 5 of the Act. The provisions laid thereunder are as follows:

Appointment of Members: The President of India shall make the following appointments, with consideration and recommendations from a ‘Committee’ formed under this Section. This Committee shall consist of the following representatives:

• Prime Minister as the Chairperson;
• the Speaker of the Lok Sabha (member);
• the Central Minister of Home Affairs (member);
• the Leader of the Opposition Party in the Lok Sabha (member); and
• the Deputy Chairman of the Rajya Sabha. 

This Committee as formed hereinabove shall make recommendations to the President for the appointment of the following into the Commission:

1. Chairperson ( Sr. No. 1 in the table)
2. 1 Member ( Sr. No. 2 in the table) [if still a sitting judge, the appointment has to be with prior consultation with the Chief Justice of India].
3. 1 Member ( Sr. No. 3 in the table)  [if still a sitting judge, the appointment has to be with prior consultation with the Chief Justice of India].
4. 2 Members ( Sr. No. 4 in the table)

The absence and vacancy of any of the positions of the members of the ‘Committee’ as stated hereinabove, does not render the appointment of any member to the NHRC void.

Resignation of Members: The members of the NHRC can, at any time, resign from their post on the submission of a notice containing details of such resignation, to the President of India. 

Removal of Members: In addition to the appointment of such members of the NHRC, the President of India can also affect their removal, in the following cases:

• On the grounds of proved misbehavior and/or incapacity of such member;
• If such a member is adjudged as an insolvent
• If such member engages, during his tenure with the NHRC, in any other paid employment outside his office of duty
• If such member cannot continue their term due to infirmity of body or mind;
• If such a member is convicted and sentenced to imprisonment for an offense that leads to questioning such member’s moral standing.

At the State level of the HRC, the Governor has the authority and control to appoint and remove the members of the State Human Rights Commission, in consultation with the same positions of the government as stated for the NHRC, but at the state level of every state. 

Functions of the NHRC

The NHRC, along with its basic motive of safeguarding the wellbeing and rights of every individual in the country, has certain niche functions, which are enumerated under Chapter III of the Act. 

General Functions: The NHRC. amongst other facets of its existence, has the authority to undertake the following:

• Take suo motu cognizance, or intervene, in any matter presented before it, or in any other court after due permission of such court, involving the gross violation of human rights and/or the negligence in the prevention of such violation of rights. 
• Visit any jails or other institutions to keep a check on the treatment of detainees, and make recommendations to the respective Government for the same. 
• Review the Constitution of India and all other laws prevailing at the present time, and suggest methods of making the same at par with current human right standards
• Keep a check on and provide recommendations for unemployment in India, and measures to reduce the same.
• Ensure precise implementation of international human rights standards in accordance with international treaties
• Undertake and promote research, and spread awareness through myriad sources of multimedia, to ensure maximum knowledge of the field in maximum people in the country
• The members of the NHRC have the power to take up the office or duties of the Chairperson, in an event such Chairperson is incapacitated, or the members are directed to do so by the President of India.
• The NHRC can send recommendations to the concerned Government authority for the payments related to compensation of damages to victims in cases
• It can recommend the initiation of action against a guilty public servant, to the respected authorities
•  It can recommend the grant of interim relief to a victim, to the concerned government authority

Powers related to Inquiries: In inquiring into complaints filed under the Act, the Commission is granted powers of a Civil Court in trying a suit as per the directions of the Code of Civil Procedure, 1908, in specific matters as prescribed to them, including but not limited to:

• Summoning and examining witness under oath
• Production of documents
• Receiving affidavits as proofs
• Issuing orders for examining witnesses and documents

In addition to these powers, the NHRC has the power to legally bind an individual to furnish information that the Commission deems expedient in a case, and to enter into any premise where they have reason to believe certain documents may be found, which according to them is expedient to a case, and to seize and make copies thereof.

Powers related to Investigation: The NHRC has the power to utilize agencies in undertaking investigations in relation to any inquiry filed with them, after due permission from the Central or State Government.  

To satisfy itself with the quality and authenticity of data received, the NHRC can also make any inquiry, and examine any witness as it requires, to fulfill such a need. Further, if the NHRC considers it necessary to examine any individual, and is of the opinion that the reputation of such individuals might serve as a bias either for or against them in a trial, it has the authority to give such individuals an opportunity to defend themselves, and to be heard in the proceedings. 

Limitations of the NHRC

Although being a governmentally associated principal advocate for human rights in our country, the NHRC does have certain misgivings that limit the authority it seems to have.

• Insufficient powers for rendering relief: The recommendations given by the NHRC are not binding on any authority, be it legislative or executive. The Commission cannot penalize any authority or department for not following its orders or directions. The NHRC cannot actually give pragmatic and complete judgments to aggrieved parties, like courts, and is thus falling short in giving practical relief to the victims. Further, the time limit given to each inquiry is 1 [One] year from the date of its admission in the Commission. The NHRC can only entertain one case for a maximum period of 1 [One], which could affect the quality of justice. 
• Lack of Jurisdiction: As a safeguard for human rights throughout India, the NHRC is failing at primarily reaching all the parts of the country. The State of Jammu and Kashmir is not within the jurisdiction of protection and review by the NHRC, which invalidates the country-wide scope of the Commission. Jammu and Kashmir, as evidently proved on regular occasions, is the epicentre of gross human rights violations, by government authorities, armed forces, law enforcement, etc., and the NHRC not being given the jurisdiction of this state clearly shows the back seat that the Commission has in the practical aspect of things. Further, the NHRC does not have means to mitigate human right violations between private parties, unless such parties come to the forefront. 
• Armed Forces: The NHRC does not have the jurisdiction to question and ask information from the National Government, on matters relating to the working of the Armed Forces, This severely limits the scope of ensuring human rights in all sectors, as they have to rely solely on the Human Rights report submitted by the Centre in this regard.
• Shortcomings in Investigations: The NHRC does not have the means to carry out any investigations with its own agenda and mode, but has to redirect such a request to the Central or State Government so that they can appoint an Officer to undertake such an investigation. Further, the time limit placed on the investigation hampers the working of the NHRC, since they can only investigate a case for one year after its admission in the Commission. This affects the work and quality of investigation undertaken by the NHRC, and a great number of grievances may go unaddressed.  
• Ceremonial Figure: The NHRC is considered to be a place for judges to go to, once they retire, or feel their tenure as judges ending soon, and is commonly treated as a post-retirement platform for judges, officers and bureaucrats. Further, the inadequacy of funds delegated to its functioning, also severely compromises its activities. 
• Other Limitations: In addition to all the above mentioned limitations, the majority of the Commission comprises judges of the Supreme Court and the High Court, which gives the NHRC a more judicial and legal touch. The lack of human right experts and civil liberty experts is concerning, and can cause problems in judgement of certain inquiries. Further, its functioning is bureaucratic, as most of the members in it are there due to their political clout. 

Controversy regarding the Commission

In being called ‘toothless tiger’ and ‘India’s teasing illusion’, the NHRC has faced a great deal of criticism and backlash from the citizens and government authorities of India. In regards to the composition and membership of the Commission, various happenings have led to controversies regarding the same, which in turn affects the working of the NHRC. 

In 1999, a journalist by the name of Shivani Bhatnagar was murdered, which led to a the outcry of a scandal as the person charged with her murder was an IPS officer, Ravi Sharma. This case implicating a high-ranking officer was reported to the NHRC, but was rejected on no explicit grounds. This rejection of a case with clear disregard for human life, brought up varied questions on the working and existence of the NHRC. The NHRC was termed as ‘useless’ and ‘not adept’ to handle situations of sensitive government matters. 

Another ruckus was created, when the Chairman of the NHRC, the then Chief Justice of India in 2011, was implicated of owning assets disproportionate to his income. K.G. Balakrishnan J, was questioned and was asked to resign by many well known jurists and judges of the Apex and other high courts. Further, his son, in the face of all the criticism, had to resign from his political party. 

Recommendations 

In order to make NHRC more effective, its powers could be increased in various ways to increase its effectiveness and efficiency in delivering justice to the victims. The commission should be empowered to provide interim and immediate relief including monetary relief to the victim. In addition, the commission should be empowered to punish the violators of human rights, which may act as deterrent to such acts in the future. The interference of the government and other authorities in the working of commission should be minimum, as it may influence the working of commission. Therefore, the NHRC should be given power to investigate into the cases related to human rights violation by the members of the armed forces.

• There is a need for complete revamping of NHRC to make it more effective and truly a watchdog of human right violations in the country.
• NHRC efficacy can be enhanced by the government if commission decisions are made enforceable.
• There is a need to change the composition of commission by including members from civil society and activists.
• NHRC needs to develop an independent cadre of staff with appropriate experience.
• Many laws in India are very old and archaic in nature by amending which government can bring more transparency in regulations.
• To improve and strengthen the human rights situation in India, state and non state actors need to work in tandem.
• More powers: Its decisions should be made enforceable by the government. The efficacy of commissions will be greatly enhanced if their decisions are made enforceable by the government.
• Armed forces: The definition should be restricted to only army, navy, and air force. Further, even in these cases the Commission should be allowed to independently investigate cases of violation of rights.
• Commission’s membership: Members of NHRCs should include civil society, human rights activists, etc. rather than ex-bureaucrats.
• Amending law: Misuse of laws by the law enforcing agencies is often the root cause of human right violations. So, the weakness of laws should be removed and those laws should be amended or repealed if they run contrary to human rights.
• Independent Staff: NHRC should have its independent investigating staff recruited by itself, rather than the present practice of deputation.

Conclusion

In making the NHRC more effective, the powers granted to it could be increased in various ways to increase its effectiveness and efficiency in the process of delivering justice to the victims of human rights violations. The NHRC needs to be empowered and liberated from bureaucratic and political control in order to effectively discharge its duties. It needs to have the liberty of being able to make decisions that have a concrete and material impact to the situation. Making it an independent organ, with more powers and a louder voice in the bigger picture, would strikingly change the working of the nation, and give it an international impetus. 

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