National Human Rights Commission (NHRC)
The National Human Rights Commission (NHRC) of India is a statutory body constituted under the Protection of Human Rights Act 1993. The commission acts as the watchdog of human rights in the country. Its mandate includes safeguarding and advancing the rights to life, liberty, equality, and dignity as guaranteed by the Constitution or outlined in international covenants. The commission reflects India’s commitment to the promotion and preservation of human rights.
The headquarters of the NHRC is in Delhi, and the commission may, with the previous approval of the Union Government, set up offices at other places in India. The current chairperson/Chairman of the National Human Rights Commission is Justice Arun Kumar Mishra.
What are Human Rights?
As per the definition of the United Nations:
Human rights are rights inherent to every individual, irrespective of their race, gender, nationality, ethnicity, language, religion, or any other classification. These encompass the entitlement to life and freedom, protection against slavery and torture, the right to express opinions, and access to work and education, among others. All individuals are entitled to these rights without any form of discrimination.
Human rights are defined under the Protection of Human Rights Act, 1993 as the rights to life, liberty, equality, and dignity of the individual that are guaranteed by the Constitution or embodied in the International conventions and enforceable by courts in India.
|Global Alliance of National Human Rights Institutions (GANHRI) Sub-committee on Accreditation (SCA)
Evolution of Human Rights Commission
- The Universal Declaration of Human Rights (UNDHR), which was adopted on 10th December 1948 and subsequently covenants on economic, social and cultural rights, 1976 and covenants on civil and political rights, 1976, had already laid down the legal foundations of human rights.
- UDHR is not binding on the member nations of the United Nations. However, there was pressure on nations to make these rights legally and enforceable and at least establish a national organisation in the country to oversee the remediation of human rights violations.
- The Human Rights Commission aligns with the Paris Principles, which were established during the first international workshop on national institutions for the advancement and safeguarding of human rights in Paris in October 1991. These principles were subsequently endorsed by the UNGA through its Resolution 48/134 on 20th December 1993.
- Since India was closely and actively participating in all these developments, it became obligatory to set up the National Human Rights Institute in the country.
- In 1993, the Indian government enacted the Protection of Human Rights Act, which expanded the definition of human rights. The act not only encompassed rights legally acknowledged within domestic laws, including fundamental rights, but also addressed rights acknowledged in international conventions that had not yet been formally recognised or incorporated into the domestic or constitutional framework.
Important Events with respect to Human Rights
Objective of National Human Rights Commission
- To develop institutional structures that will handle human rights concerns in a holistic and more focused manner.
- To investigate complaints of abuses independently of the government in a way that highlights the government’s commitment to human rights protection.
- To supplement and reinforce previous efforts in this area.
Composition of NHRC
According to the NHRC Amendment Act, 2019 the commission shall consist of:
- A Chairpersonwho has been a retired chief justice of India (CJI) or a judge of the Supreme Court.
- Five members have the following qualifications:
- A member who is or has been the judge of the Supreme Court.
- A member who is or has been the Chief Justice of a High Court.
- Three members are to be appointed from amongst persons having knowledge of practical experience in matters relating to human rights, out of which one must be a woman.
- In addition to this, there will be seven ex-officio members of the commission:
- The Chairperson of the National Commission for Minorities (NCM).
- The Chairperson of the National Commission for Scheduled Castes (NCSC).
- The Chairperson of the National Commission for Scheduled Tribes (NCST)
- The Chairperson of the National Commission for Women (NCW)
- The Chairperson of the National Commission for Backward Classes (NCBC),
- The Chairperson of the National Commission for the Protection of Child Rights (NCPCR)
- The Chief Commissioner for Persons with Disabilities
- Besides these nominated members, there is a Secretary-General who is the Chief Executive Officer of the Commissions, exercises such power and discharges such duties of the commission as it may delegate to him.
Appointment of Chairman and Other Members of NHRC
- The chairperson and other members of the commission are appointed by the President of India.
- Every appointment is made after obtaining the recommendation of a committee consisting of:
Term of office and other service conditions of Chairperson and Members of NHRC
- Term: The Chairperson or the Members of the National Human Rights Commission hold office for a term of 3 or until they attain the age of 70 years, whichever is earlier.
Note: Earlier, the tenure of office was five years or 70 years, whichever is earlier, but the 2019 amendment in the Protection of Human Rights Act changed that provision.
- Reappointment: Both the Chairperson and members are eligible for reappointment. However, they cannot hold office beyond the age of 70.
- Further Employment: After the end of the term, the chairperson and members are ineligible for further employment under the central or any state government.
- Salary and allowances: The salary, allowances and other service conditions are determined by the central government. However, they cannot be varied to their disadvantage after their appointment.
Note: The expenses, including the salary and allowances, are not charged to the consolidated fund of India.
Removal of Chairperson and Members
Protection of Human Rights Act lays down the procedures and grounds for the removal of the chairperson and the members of the commission.
- According to the act, the chairperson or any other members of the commission can only be removed on the order of the President on the grounds of proved misbehaviour or incapacity after the Supreme Court (on the reference made by the President) holds an enquiry and upholds the charges made and advises so.
- The President may remove the Chairman or any other members in the following circumstances:
- If s/he is adjudged an insolvent;
- Has been convicted of an offence, which, in the opinion of the President, qualifies as moral turpitude;
- Takes on any paid employment outside of their official responsibilities while serving in office
- Is, in the opinion of the President of India, unfit to continue in office due to infirmity of mind or body;
Function of National Human Rights Commission:
The commission shall perform all or any of the following functions:
- Initiate an investigation, either independently (suo moto) or in response to a petition filed by a victim or someone acting on their behalf, into allegations of human rights violations or allegations of complicity or negligence by a public servant in preventing such violations;
- Intervene in any proceeding involving any allegation concerning the allegation of human rights violations before a court, with the court’s consent.
- Visit, with prior intimation to the State Government, any prison or institution under the State Government’s jurisdiction where individuals are detained or housed for purposes of treatment, rehabilitation, or protection. Evaluate the living conditions of the inmates and provide recommendations accordingly;
- Evaluate the safeguards provided by the Constitution or existing laws for the protection of human rights and recommend measures for their effective implementation.
- Evaluate the factors, including acts of terrorism, that hinder the enjoyment of human rights and propose suitable corrective actions.
- Examine treaties and other international instruments related to human rights and provide suggestions for their successful implementation.
- Annual Report:The commission presents yearly or special reports to the Central Government and the respective state governments.
These reports are presented to the different legislatures, together with a summary of action taken on the commission’s recommendations and the reasons for not accepting any of them.
- Coordination with other human rights agencies: It plays an active role in coordinating with other National human rights institutions of the world to enhance awareness from the perspective of human rights. It also hosts delegations from human rights bodies, UN bodies, as well as members of civil society and political and social activists from other countries.
- Conduct and encourage research in the field of human rights;
- Enhance human rights awareness across different sections of society; and advocate for an understanding of the safeguards provided for the protection of these rights through publications, media and other available means.
- Support the initiatives of non-governmental organisations (NGOs) and institutions engaged in the field of human rights.
- Any additional functions as may be considered necessaryfor the promotion of human rights.
Powers of National Human Rights Commission
- Power of Civil court: while inquiring into any matter given below, the commission has the same authority granted to a civil court while trying a suit under the Code of Civil Procedure, 1908, in the matters given below:
- Summoning and enforcing the attendance of persons and requiring them to give oral or written evidence under oath and to produce the documents or other items;
- Requiring the discovery and inspection of documents;
- Receiving evidence on affidavit;
- Requiring any public record or copies from any court or office;
- Issuing summons to have witnesses or documents examined;
- Any other matter that may be prescribed.
- Every proceeding before NHRC is deemed to be a judicial proceeding.
- Power related to Enquiry: During the conduct of any inquiry and investigation, the NHRC can utilise the service of any officer or agency of central or any state with the concurrence of the concerned state government.
- The NHRC has the authority to require any person to provide information on such points or matters as it may deem useful for or pertinent to the subject matter of the inquiry.
- Power to cease documents: The NHRC or any authorised officer is empowered to enter any place and cease or take copies of any documents related to the subject matter of enquiry.
- The commission is empowered to transfer the complaints to the concerned state human rights commission.
Limitations on the functioning of NHRC and other Issues
NHRC faces various limitations that affect the protection of the Human Rights. Limitations can be structural as in the act or due to the procedural issues that affects the functioning of the NHRC. It can be seen in following points:
Structural Issues faced by the NHRC
- NHRC cannot take any action against the violation of Human rights by private parties.
- Recommendations are advisory in nature: The Recommendations made by the NHRC are not binding.
- Lack of penal power: NHRC cannot penalise the authorities that don’t implement its recommended orders.
- The NHRC has limited jurisdiction over cases related to the armed forces.
- Overlapping jurisdiction: The overlapping jurisdiction of NHRC and other agencies (NCW, NCM, NCSC, NCST, etc) can sometimes make it difficult for victims of human rights violations to seek redress by approaching a single agency.
- Dependency on central government: The Commission is dependent upon the Law Ministry for its administrative and financial requirements, which can have repercussions on its autonomy.
The NHRC cannot hold jurisdiction in the following cases:
- Cases older than one year.
- Cases that are anonymous, pseudonymous, or vague.
- Frivolous cases.
- Cases pertaining to service matters.
- It cannot take up cases pending before the state HRCs or any other commission.
Concern with respect to the 2019 Amendment in the Protection of Human Rights Act:
- It provides for a shorter term for the chairperson and other members and removes the limit on reappointment, which may increase the possibility of government appeasement.
- Earlier, only the CJI could become the chairperson; this provision has been diluted, and now a Supreme Court judge is also eligible to become the chairperson. This may degrade the high status of the commission and increase the discretion of the government in the appointment of the chairperson.
- The government failed to diversify the membership of the commission; for instance, there have been only two women members in the commission in the last 25 years. There is also a lack of representation of NGOs and civil society.
The Protection of Human Rights (Amendment) Act, 2019
It amends the Protection of Human Rights Act of 1993. It has brought changes in the Human Rights Commissions, both at the centre and the states:
Procedural Issues faced by the commission
- Declining number of registration of cases: For instance, in 2016, the number of cases registered was 96,267; the number fell to 75,064 in 2020. The number of suo moto cases also dropped by ~46% between 2012-16 and 2016-20.
- High dismissal rate: As per the data for 2020, 97% of the cases were dismissed without even a preliminary hearing on the matter. Of these, 45% of the cases were rejected on procedural grounds.
- The declining number of enquiries into complaints: The commission has failed to fully exercise its power to enquire into complaints, evident from the fact that in the year 2016-17, the number of investigations taken up was 7865; this declined to approximately 3,000 cases in 2020-2021.
“The Commission has assumed a stance far too grandiose not commensurate with its resources and internal will and was a mere showpiece to convince the world that the government is committed to human rights protection.”
~Rajiv Dhawan (Lawyer)
Recommendations and Proposals to Reform the Commission
Following are the recommendation that can lead to the effective functioning of the Commission:
- Since it has been provided with the power of a civil court and its proceedings are considered as judicial proceedings, its findings should be made binding.
- Penal powers: The Commission should be empowered to penalise the violators of Human Rights.
- Power to provide compensation: The acts should explicitly mention the powers of the commission to provide interim relief to the victims
- Provisions related to Armed forces: This provision can be relaxed to allow the commission to conduct independent investigations.
- Membership should be diversified to include representation from human rights activists, civil society, NGOs, etc.
- The commission should have its independent investigating staff as opposed to the current system of appointing personnel through deputation from central and state government.
Achievements of the National Human Rights Commission
- TADA: This act with stringent provisions was brought to crack down on insurgency in Punjab and Jammu and Kashmir. However, it was misused in many cases and due to active campaigning of the NHRC, the government decided not to revive it when its term expired in 1995.
- Suo moto cognisance of the case of Violence: The Commission played an active role in the case of violence in the Gujarat riots in 2002 and the Nandigram violence in 2007. In the Gujarat riots case, the commission had recommended the transfer of cases of riot victims to other states in order to ensure free and fair trials.
- Chakma refugees: In 1998, the NHRC advised against the expulsion of Chakma refugees, contending that it infringes upon their right to life. This ultimately compelled the state to abandon its plan to deport the refugees.
- Hazratbal encounter case, Jammu and Kashmir: In this case, the government had accepted the proposals of NHRC and took action against the involved security personnel, including a few officers.
Despite its lacunas and limitations, the institution has been instrumental in safeguarding and promoting human rights in the country. Over the years, it has faced challenges and criticisms; however, its role as an institution for the protection of human rights cannot be overlooked.
Like any other institution, the NHRC also needs to be reformed to align it with the needs of contemporary times and to rectify its shortcomings.
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- National Human Rights Commission (NHRC)
- Function of National Human Rights Commission:
- Powers of National Human Rights Commission
- Limitations on the functioning of NHRC and other Issues
- The Protection of Human Rights (Amendment) Act, 2019
- Procedural Issues faced by the commission
- Recommendations and Proposals to Reform the Commission
- Achievements of the National Human Rights Commission