The Protection of Human Rights Act, 1993 and the National Human Rights Commission (NHRC) and State Human Rights Commissions which are formed under the act are described in this article.
Introduction:
The idea of human rights is very pristine and sacrosanct. If rights are scrapped off a man, then what remains is a mere animal existence (though nowadays, rights regime is extended to animals too). Recognition of Human Rights as sacrosanct and inviolable, in both domestic and international law, only ensures ‘passive legality’; does not warrants its ‘real existence’. To convert ‘a black and dead letter law’ which has no real existence, into a reality, demands an institution to enforce and monitor the implementation of the right in the Real World.
The idea of the creation of an impartial institution of human rights in the States was initiated by the UNESCO in as early as in 1946. The Secretariat in the Memorandum ‘Supervision and Enforcement of Human Rights’ in 1947 had suggested for the creation of such a body of the states. In 1966, the General Assembly of the United Nations adopted a resolution for considering the advisability of the proposal for the creation of a national commission on human rights to perform certain functions pertaining to the observance of the Covenant on Civil and Political Rights and the Economic, Social and Cultural Rights.
The Commission of Human Rights was asked in 1970 to go through this aspect of the creation of a national commission, and commission responded that this question should be decided by each government in the light of traditions and institutions of each country. The Commission in 1978 reiterated its recommendation, but states paid little heed to this.
The World Conference on Human Rights in 1993 realizing the importance of such an institution or commission, stated that ‘the World Conference on Human Rights urges Governments to strengthen national structures, institutions, and organs of society which play a role in promoting and safeguarding human rights.’ Since the adoption of the ‘Vienna Declaration’ and Programme of Action adopted by the World Conference, a number of countries have established such institutions. The majority of existing national institutions may be grouped into two broad categories: Human Rights Commissions and Ombudsman.
In addition to the above, there are specialized national institutions which function to protect the rights of vulnerable groups. In those cases where institutions have been established by the Governments, they enjoyed an important degree of autonomy from the executive and legislature and they also took full account of international human rights standards which were applicable to the country. However, the role given to such institutions has too often either not been sufficiently substantial or has been neglected or given low priority.
The Protection of Human Rights Act, 1993.
India had shown a keen interest in the past in establishing or strengthening a national institution for the promotion and protection of human rights before the 3rd Committee of the General Assembly. It introduced a draft resolution wherein it emphasized the importance of the integrity and independence of such national institutions. In the draft resolution, it also requested the Security General of the United Nations to submit a report to the General Assembly in 2 years regarding the functioning of the various kinds of national institutions and their contribution towards implementing human rights.
In early 1990s India felt the need of establishing a commission as a positive response to the criticisms of the foreign Governments in the context of political unrest and violence in Punjab, Jammu & Kashmir, North-East, and Andhra Pradesh. In addition to the pressure from the foreign countries, the pressure was added from the domestic front as well for the creation for a National Human Rights Commission, because of the awareness among the people for the protection of human rights. All this led the Government to enact a law to establish a Human Rights Commission.
Human Rights Commission Bill was introduced in the Lok Sabha on May 14, 1992. The Bill was referred to the Standing Committee of the Parliament on Home Affairs. However, in view of the urgency of the Commission due to the pressure from the foreign countries and from the domestic front, the President of India on September 28, 1993, promulgated an “Ordinance” for the creation of a National Human Rights Commission (NHRC) and Commissions at State Level.
Accordingly, the National Human Rights Commission was established on October 12, 1993. After having made certain amendments in the ordinance, the Protection of Human Rights Bill was passed by both the Houses of the Parliament to replace the Ordinance. The Bill became an Act after it received the assent of the President on January 8, 1994, which is known as the ‘Protection of Human Rights Act, 1994’. The purpose of the enactment is laid down in the Preamble of the Act, i.e., to provide for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.
Section 2(d) of the Act defined the expression human rights by stating that human rights mean the rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The above definition restricts the scope of the functioning of the NHRC. India ratified the two Covenants – International Covenant on Civil and Political Rights and the Economic, Social and Cultural Rights, but these Covenants are not directly enforceable as law before the Indian Courts. The references to these Covenants in the Act are purely superficial, as decisive words are: “enforceable by Courts in India”.
These words limit human rights strictly to the fundamental rights embodied in Part III of the Constitution which are enforceable by courts in India. The fact is that they are more limited than human rights in the Covenants. Hence, some criticise this point, as the purposes of creating the commission gets frustrated as the human rights which are embodied in the constitution did not need any special enforcement as for their enforcement High Courts and Supreme Court existed; but the human rights, which are not explicitly recognised under the constitution need their recognition and enforcement, but they are kept out of the field of the NHRC.
The Act sets up a National Human Rights Commission and the State Human Rights Commissions in the States and the Human Rights Courts in the districts.
National Human Rights Commission (NHRC)
Chapters II-IV of The Protection of Human Rights Act, 1993, deals with the National Human Rights Commission.
1. Constitution
Chapter II of the Act deals with the Constitution of NHRC. Section 3 of the Act lays down that the Central Government shall constitute a body to be known as the National Human Rights Commission which shall have eight members and will be headed by a Chairperson who has been the former Chief Justice of the Supreme Court. The other members of the Commission may be sitting or retired judge of the Supreme Court, a serving or a retired Chief Justice of the High Court, two prominent persons having knowledge or practical experience in the sphere of human rights and the Chairpersons of the National Commission for Minorities, the Scheduled Castes and Scheduled Tribes and Women.
The Current Chairperson is Hon’ble Mr. Justice H.L. Dattu. The Chairperson and the members of the Commission shall be appointed by the President on the recommendation of a six-member Committee headed by the Prime Minister. The Chairperson and the members shall hold office for a period of five years, from the date on which they enter upon their office. They shall be eligible for re-appointment for another term. A person can serve at the Commission until the age of 70 years. The Chairperson or any other member of the Commission may be removed from his office by an order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it by the President, has on an inquiry, reported that the Chairperson or such other member ought on any such ground to be removed. The President may remove from the office of the Chairperson or of any other Member if
- He is adjudged an insolvent;
- He is engaged during his term of office in any paid employment outside the duties of his office;
- He has become unfit to continue by reason of infirmity of mind or body;
- He has been declared by a competent court a person of unsound mind;
- He has been convicted and sentenced to imprisonment of an offence which in the opinion of the President involves moral turpitude.
The Chairperson or any member, may, by notice in writing under his hand addressed to the President of India, resign his office.
According to s.11 of the Act, the Central Government shall make available to the Commission an officer of the rank of the Secretary to the Government of India who shall be the Secretary-general of the Commission, and such police and investigative staff as may be necessary for the efficient performance of the functions of the Commission.
The Commission has its headquarters in New Delhi and with the permission of the Central Government may establish offices in other places in India.
2. Powers and Functions.
The functions of the Commission are laid down under Section 12 of the Act –
- The Commission shall enquire suo moto or on a petition presented to it by a victim or any person on his behalf, into complaints of (a) violation of human rights or abatement thereof; or (b) negligence in the prevention of such violation by a public servant. The Commission took suo moto cognizance of the communal disturbances in Gujarat commencing with Godhra Tragedy on February 27, 2002, and its aftermath.
- The Commission may intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court.
- The Commission shall visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon.
- The Commission shall review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and will recommend measures for its effective implementation.
- The Commission shall review different factors which inhibit the enjoyment of human rights, like terrorism, and then recommend remedial measures to curb it.
- The Commission shall study treaties and other international instruments on human rights and make recommendations for their effective implementation.
- The Commission shall also undertake and promote research in the field of human rights.
- The Commission shall spread human rights literacy among various sections of society through different mediums.
- The Commission shall encourage the efforts of Non-governmental organizations and institutions working in the field of human rights.
- The Commission shall perform any other function as it may consider necessary for the protection of human rights
- The Commission shall submit an annual report to the Central Government and to the concerned State Government and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance, that it should not be deferred till submission of the annual report. The Central Government and the State Government shall lay such report before House of Parliament or State Legislature, along with ‘memorandum of action’ taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations (s.20). Exercising this power the Commission has made many recommendations, like ratification of Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment adopted by the United Nations in December 1984; serious to be taken on the Second Report of the Police Reforms Commission, 1979; amendment of Indian Prison Act, 1894 to deal with custodial crimes, etc.
- The Commission shall perform functions pursuant to the directions issued by the Supreme Court in exercise of the jurisdiction under Article 32 of the Constitution. The Supreme Court in Premjit Kaur v. State of Punjab (AIR 1999 SC 340) observed that, “the Commission would function pursuant to the directions issued by this court and not under the Act under which it is constituted. In deciding the matters ‘referred’ by this court, NHRC is given a free hand and is not circumscribed by any conditions. Therefore, the jurisdiction exercised by NHRC in these matters is of a special nature not covered by enactment or law, and thus acts ‘sui generis’ ”
The detailed powers of the Commission are provided under section 13 of the Act. All these powers which are specifically given are indispensable for any court to decide the cases. These powers are similar to that of powers of civil court, and even a person is made liable under specific provisions of IPC, if he furnishes false evidence, etc. The powers of the NHRC is not restricted to enquiry, but some special investigative powers are also given to the NHRC. Section 18 confers some special powers to the commission.
The Commission may, after completing the inquiry recommend to the appropriate Government or authority to take action against the person concerned where the inquiry discloses the violation of human rights. It may also recommend the appropriate Government or authority for grant of necessary interim relief to the victim or his family members. The Commission may approach the Supreme Court or the concerned High Court to pass such directions, orders or writs as that Court may deem necessary.
3. Functioning
The Commission in accordance with the power conferred to it by subsection (2) of section 10 of the Act made the regulations which are called National Human Rights Commission (Procedure) Regulations, 1994. These Regulations got replaced by NHRC (Procedure) Amendment Regulations, 1996.
All complaints in whatever form received by the commission are registered and assigned and placed for admission as per the special or general directions of the Chairperson before a Single Bench constituted for the purpose, not later than one week of receipt thereof. If the Single-member Bench dealing with the case, either for admission or final disposal, having regard to the importance of the issues involved is of the opinion that the case should be heard by a Bench of not less than two members, he/she may refer the case to a Bench of two or more members, as may be constituted by the Chairperson. No fee is charged on making complaints. The Commission has a power to dismiss a complaint in limine. Upon admission of a complaint, the Chairperson/commission shall direct whether the matter shall be set down for inquiry by it or should be investigated into. On every complaint on which a decision is taken by the Chairperson/Commission to either hold an inquiry or investigation, the Secretariat shall call for reports/ comments from the concerned Government/Authority giving the latter a reasonable time thereof. On receipt of the comments of the concerned authority, a detailed note on the merits of the case is prepared for consideration by the Commission. The directions and recommendations of the Commission are communicated to the concerned Government/authority and the petitioner as provided for in Sections 18 and 19 of the Act.
Several Important cases where NHRC has made a great impact include:
- In Bonded Labourers Working in Chauna Stone Mines, District Gwalior Madhya Pradesh (Case NO. 1351/12/2001-2002 (FC)), Bonded Labour Liberation filed a complaint that 400 bonded laborers had been working in Chauna Stone mines in District Gwalior and they were not paid their wages; besides they were tortured and harassed. Commission asked the government to direct Labour Commissioner, MP to ensure the inspection of these establishments and strict enforcement of all labor laws. 44 persons were released and sent to other districts as per their wishes. In a subsequent report, Labour Department, Government of MP stated about the rehabilitation of released laborers and also indicated the action taken against the guilty employers. On Consideration of the report, Commission closed the case.
- In Case No. 2432/4/39/2012, the Commission had taken suo moto cognizance of press report titled ‘Kids thrashed for refusing insect infested school meal’. The report alleged that students of a school at Mithani Milki village of Vaishali district near Patna were allegedly thrashed by their headmaster till they fainted for refusing to eat a mid-day meal of khichdi in which they found insects. The Commission issued a notice to the Chief Secretary, Government of Bihar and the District Magistrate, Vaishali to submit a report on the matter and also about the steps taken by them. The SP Vaishali, Bihar, submitted a report that charge-sheet has been filed before the Court against the Head Master of the School. District Magistrate, Vaishali, further directed to send a report along with proof of payment within six weeks, regarding payment of monetary relief to the victim-students of SC community under the provision of Rule 12(4) of SC/ST (PA) Rules 1995. The response received in the matter is under consideration of the Commission.
- In Case No. 1155/35/5/2014, the commission took suo moto cognizance of the matter on the report published in Hindi Newspaper titled ‘Is school mein bachche helmet pehan kar karte hain padhai’.
According to the report, in a school in village Doodhli, 25 km from Dehradun, children wear a helmet while studying in the Classroom. It has been mentioned that building of the school in which they study is in a dilapidated condition and plaster from the roof continuously falls. This fall of plaster from the roof has resulted in injuries to many students. The contents of the press report raised a serious issue of violation of human rights of school children. The commission issued a notice to the Secretary, Department of Education, and directed to submit a report in respect of the various school buildings in a dilapidated condition in the State and the corrective measures taken/proposed to be taken by the State Government. District Magistrate, Dehradun was also directed to submit a report in respect of the number of children who have suffered injuries in the school, details of medical treatment provided to them as well as an ex gratia relief granted by the State Government. - On 5 October 2016, the NHRC has taken suo moto cognizance of a media report that a prisoner of the Greater Noida Jail, an accused in the lynching of Mohammed Ikhlaq of Dadri, has died in Delhi hospital during treatment. The Commission issued notices to the Director General, Prisons, and Director General of Police, Uttar Pradesh calling for a report on the matter within 4 weeks.
State Human Rights Commission (SHRC)
Under Chapter V, The Act provides for setting up of the State Human Rights Commission in States.
1. Constitution
SHRC is to consist of a Chairperson who has been a Chief Justice of a High Court; one member who is, or has been, a Judge of a High Court; one member who is, or has been, a District Judge in that State with a minimum of 7 years experience as District Judge and one member to be appointed from amongst persons having knowledge of or practical experience in in matters relating to human rights (s.21). The Chairperson and other members of the Commissions shall be appointed by the Governor on the recommendation of a Committee consisting of the Chief Minister (the Chairperson), and the three members, i.e., Speaker of the Legislative Assembly, Minister-in-charge of the Department of Home in that state and the Leader of the Opposition in the Legislative Assembly. All the members of the Commission shall hold office for a period of five years from the date of assumption of office or at the age of 70 years whichever is earlier. A member is eligible for re-appointment for another term of 5 years subject to the age of 70 years. The Chairperson or a member of a State Commission may, by notice in writing under his hand addressed to the Governor, resign his office. The Chairperson or a member of State Commission shall only be removed from his office by order of the President on those grounds on which the Chairperson or a member of the NHRC are removed. There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the SHRC as it may delegate to him.
The Commission has its headquarters at a place, where the State Government specifies, by a notification. There is no provision for the Constitution of Human Rights Commission in that Union Territories.
2. Powers and Functions
The SHRC is empowered to perform all those functions which have been entrusted to the NHRC. However, Para C of Section 29 excludes the study of treaties and other international instruments on human rights from the purview of the SHRC’s functions.
Section 36(1) of the Act, however, states that the National Human Rights Commission shall not inquire into any matter which is pending before the State Commission or any other statutory Commission duly constituted under any law in force. It implies that the Act gives priority to the State Commission dealing with a problem if the matter is filed before it and the National Human Rights Commission.
The Commission is also required to submit its annual reports to the State Government and it may submit at any time special reports on any matter, which it deems fit and expedient to deal. The State Government shall submit these reports before each House of State Legislature with a memorandum of action taken or/and the reasons for non-acceptance of the recommendations if any.
The State Human Rights Commission have been established in 21 states. Many state governments either not formed the commission itself, or if they have formed, they do not regularly make appointments of the members. The reasons which are cited by the State Government predominantly consist of financial reasons, and lack of men power. The situation is pathetic when the attitude of State Government is seen. The low priority given to SHRCs is a testament to the bad state of human rights affairs prevailing in the states.
Human Rights Courts in Districts
Chapters VI of the Act, comprising of Sections 30 and 31 makes the provisions pertaining to the creation of Human Rights courts in each district.
The setting up of Human Rights Courts in every district of the country for the speedy trial of offenses arising out of the violation of human rights is a novel provision of the Act. Section 30 of the Act provides that Human Rights Courts may be set up by the State Government, with the concurrence of the Chief Justice of the High Court, by notification, specific for each district, a Court of Session to be a Human Rights Court.
In accordance to section 31, the State Government shall appoint a Public Prosecutor or an advocate who has been in practice as an advocate for not less than seven years for the purpose of conducting cases in the Human Rights Courts. Such a person shall be called a Special Public Prosecutor.
The act leaves it on the ‘discretion’ of the State Governments to establish these courts, it is not made ‘mandatory’ by the Act.
Though some states have established such courts, like Uttar Pradesh, in 1995, non-appointment of Special Public Prosecutors and other staff have made such courts a mere ‘illusion’.
Evaluation of the Act
Though the Protection of Human Rights Act, 1993 and the Commissions formed under it has shielded the human rights of persons in the country from getting violated, still the Act and its implementation lacks many things and consists of some inherent flaws. Some flaws and recommendations are:-
- The Human Rights Commission is expected to be completely independent in its functioning. But there is no provision for the independence of the Commission. In fact, there are provisions in the Act which draw attention to the dependence of the Commission, as Commission is dependent upon the Government for its human resources for its functions as per Section 11 of the Act. Finance is considered as the blood of an organization. Section 32 of the Act makes the commission dependent on central government for its finances. Human Rights Commission is an only fact-finding body and it has got no power to adjudicate upon the disputed facts and also to issue an order to any party or government so as to be complied with. The Commission’s findings are only advisory to the government. It is at the discretion of the government whether to accept or reject the findings and recommendations of the commission as there is no provision which makes the recommendations binding on the government. The commission does not have the power to constitute special investigation teams for purposes of investigation and prosecution of offenses arising out of violations of human rights.
- Unlike Supreme Court and High Courts, Commission cannot inquire into any matter which is pending before state human rights commission or before human rights courts despite the gravity of matter concerned as provided under Section 36(1) of the Act.
- The act puts 1 year limitation period for seeking redressal of grievances before the human rights commissions. Human Rights Commissions cannot investigate an incident if the complaint was made more than 1 year after the incident as provided under Section 36 Clause 2. Therefore, a large number of genuine grievances go unaddressed if the victim fails to approach the commission on time due to whatsoever reasons.
- It is not mandatory for the State government to establish State Human Rights Commission and Human Rights Courts.
Conclusion:
The Enforcement of Human Rights is not a difficult problem if one realizes the existence of human rights as an integral part of human life. If the former is realized, then the only hurdle which comes is the web of procedures of enforcement of human rights, into which the victim gets entrapped. If that web is transformed into a simple and straight road, walking on which the victim can get his human rights enforced easily. If that does not happen, then it is very certain, the reporting of human rights violation will be very less. The Enforcement becomes a difficult problem, when a man with clear vision, closes his eyes for recognizing any other persons human rights, and when this happens, enforcement of human rights becomes near to impossible. The latter situation is not affordable for the welfare of humanity and non-enforcement of human right is a non-negotiation term for human existence.
– Harshdeep Singh Bedi
(NLIU, Bhopal)
Sources:
- Nhrc.in
- Manupatra
- Research Paper
- Dr.H.O. Agarwal, International Law and Human Rights, Central Law Publications, 21st edition,2016.
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