JAMIA MILLIA ISLAMIA

Faculty of Law (New Delhi)

PROJECT TITLE - HUMAN RIGHT COMMISSION IN INDIA

NAME – AMIR SUBHANI KHAN

SEMESTER- V

ROLL NUMBER- 10

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INTRODUCTION
There are different ways of protecting human rights. A pluralist and accountable
parliament, an executive who is ultimately subject to the authority of elected
representatives and an independent, impartial judiciary are necessary, but not sufficient,
institutional prerequisites1. Besides these basic ‘institutions’ there may be other
mechanisms whose establishment and strengthening will enhance the excising
mechanisms. Lately National Human Rights Commissions (NHRCs) have become
prominent actors in the national, regional and international human rights arena. The UN
bodies and other funders in international donor community have directly encouraged and
supported both technically and financially the growth of these institutions. The
international community lends its support because it considers the process of establishing
NHRCs to be an indication that a government is willing to abide by international human
rights norms.

The international community has recognized the growing importance of strengthening

national human rights institutions. In this context, in the year 1991 a UN-sponsored
meeting of representatives of national institutions held in Paris, a detailed set of
principles on the status of national institutions was developed, these are commonly
known as the Paris Principles.

The Paris Principles list a number of responsibilities for national institutions, which fall
under five headings.

1. The institution shall monitor any situation of violation of human rights which it
decides to take up.
2. The institution shall be able to advise the Government, the Parliament and any
other competent body on specific violations, on issues related to legislation and
general compliance and implementation with international human rights
instruments.
3. The institution shall relate to regional and international organizations.
4. The institution shall have a mandate to educate and inform in the field of human
rights.
5. Some institutions are given a quasi-judicial competence2

These principles, subsequently endorsed by the UN Commission on Human Rights3 and

the UN General Assembly have become the foundation and reference point for the
establishment and operation of national human rights institution

1 Brian Burdekin and Anne Gallagher, The United Nations and National Human Rights
Institutions’21
2 National Human Rights Institutions - Implementing Human Rights", Danish Institute
for Human Rights, 2003.
3 Commission on Human Rights Resolution 1992/54 of 3 March 1992
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NATIONAL HUMAN RIGHT COMMISON AS DEFINED
There is broad consensus among scholars on their main objectives: promotion and
protection of human rights and to implement human rights norms domestically. In
general, however the term has been used by various scholars in the different ways. Some
have very optimistically called NHRIs “fundamental building blocks of human rights
protection’’4. and “with their complementary mechanisms the new actors on the human
rights landscape.”5 While other have identified them as” state -sponsored, state-funded
entity

HISTORY
Universal human rights standards and norms have been included in the domestic laws of
most countries. To realise these rights, there is need for the formation of implementation
machinery. NHRC have been set up in many countries in recent years to fulfil this
function.

Until the early 1990s, the Indian Government didn’t pay heed to local human rights and
civil liberties organisations. Their reports, appeals and petitions on human rights abuses,
particularly in view of anti insurgency operations in Kashmir, Punjab and northeast states,
met with deafening silence. The reports of Amnesty International and Asia Watch had
sharpened the international visibility of these human rights abuses.6 The Indian
government, however, could not continue to ignore the criticism of the international
human rights community, which reported to the world the increasing incidence of human
rights violations in the country and accused the government of condoning the abuses by
providing protection to security forces and virtually condoning human rights excesses

. The Government of India did realise the need to establish an independent body for
promotion and protection of human rights. The Commission is the first of its kind among
the South Asian countries and also few among the National Human Rights. Institutions,
which were established, in early 1990s. The Commission came into effect on 12 October
1993, by virtue of the Protection of Human Rights Act 1993

MANDATE
4 Commonwealth Secretariat Human Rights Unit, National Human Rights Institutions
in the Commonwealth Directory Survey and Analysis
5 Sripati Vijayshri, ‘‘India’s National Human Rights Commission,151
6 See May 1991 repor, ‘India’s National Human Rights Commissiont, ‘Kashmir Under
Siege’, Asia Watch, Human Rights Watch Report of 1991 available at
http://www.hrw.org/reports/1992
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The NHRC India has limited mandatory power. The Act takes a very narrow view of
human rights and provides under Section 2(d) ‘human rights’ means the right relating to
life, liberty, equality and dignity of the individual guaranteed by the Constitution of India
or embodied in the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and cultural Rights and enforceable by the
courts in India. So, main drawback of this statutory definition seems to be that it curtails
the mandate of the commission by limiting it to the rights enshrined in the two covenants
and the constitution.

COMPOSITION OF NHRC
The Constitution of the Commission dealt with in Chapter II of the Act7. Section 3 of the
Act says:, (1)“ the Central government shall constitute a body to be known to the
National Human Rights Commission to exercise the powers conferred upon, and to
perform the functions assigned to it, under this Act.

(2) The Commission shall consist of (a) A Chairperson who has been a Chief Justice of
the Supreme Court; (b) One Member who is, or has been a judge of the Supreme Court;
(c) One Member who is, or has been the Chief Justice of the High Court; (d) Two
members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.

(3) The Chairpersons of the National Commission for Minorities, the National
Commission for the Scheduled Castes and Scheduled Tribes and the National
Commission for Women shall be deemed to be Members of the Commission for the
discharge of functions specified in clauses (b) to (j) of section 12.

(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the
Commission and shall exercise such powers and discharge such functions of the
Commission as it may delegate to him.

(5) The headquarters of the Commission shall be Delhi and the Commission may, with
the previous approval of the Central Government, establish offices at other places in
India. The appointment of the Chairperson and other Members are elaborately discussed
under Section 4 of the Act. The other provisions relate to the removal of a member of the
Commission, the term of office of Members etc

APPOINTMENT OF CHAIRPERSON AND OTHER MEMBERS

7 Dr.H.O. Agarwal,International Law and Human Rights,957
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The chairperson and other members of NHRC are appointed under Section 4 of the Act
which provides every appointment under this section shall be made after obtaining the
recommendations of a Committee consisting of

(a) the Prime Minister—Chairperson;

(b) Speaker of the House of People—Member;

(c) Minister in-charge of the Ministry of Home Affairs in the Government of India—
Member;

(d) Leader of the Opposition in the House of the People—Member;

(e) Leader of the Opposition in the Council of States—Member;

(f) Deputy Chairman of the Council of State—Member: Provided further that no sitting
Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed
except after consultation with the Chief Justice of India..

FUNCTION AND POWER OF NHRC

Wide powers and functions have been given to the Commission under section 12 Of the
Act.

1. To investigate grievances regarding the violation of human rights either suo moto
or after receiving a petition.

2. To scrutinize the failure of duties on the part of any public official in preventing
the violation of human rights.

3. To interfere in any judicial proceedings involving any allegation of violation of

human rights.

4. To visit any jail or any other institution under the control of the State Government
to see the living conditions of the inmates and to make recommendations thereon.

5. To review the safeguards provided under the constitution or any law for the
protection of the human rights and to recommend appropriate remedial measures.

6. To study treaties and other international instruments on human rights and to make
recommendations for their effective implementation.

7. To undertake and promote research in the field of human rights.

8. To encourage the efforts of the non-governmental organisations working in the

field of human rights.
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 9. To spread human rights literacy among various sections of society and to promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other means.

10. To review all facts related to the activities of the terrorists which obstruct the way
of the protection of human rights and to make recommendations for their effective
implementation.

Suo moto powers :The commission can receive complaints or investigate on its own
about ‘violation of human rights or abetment thereof or negligence in the prevention of
human rights violations by public servants’. “These powers have helped the NHRC to
work in preventive and penetrative way.”8 These suo moto powers of commission to
initiate suo moto inquiries are an important aspect of its protective functions that can be
fully utilised. This is particularly relevant in those situations, which involve individuals
or groups belonging to the marginalised sections of the society who do not have the
financial or social resources to lodge individual complaints. It is the same vulnerable
groups, which are the ones most likely to be unaware of their rights and of the
mechanisms, which protect these rights. “A national institution with the capacity to
initiate its own investigations can make a significant contribution to ensuring that
vulnerable groups are given a public voice and human rights violations, wherever they
occur, become a matter of general knowledge and concern.

NHRC has suo moto powers and this fact in the context of the NHRC is reflected by the
Gujarat case. The NHRC called for a report from the state government and it was
followed by a visit of a high level team of the commission to the state, headed by its
chairperson. It had some ‘calming effect’ on the minority population of the state.

Rights of exploited and oppressed: It is particularly critical to find out whether poor
people and groups who are socially vulnerable to abuse are being protected by the
institution. The crucial measure of the effectiveness of the institution, it would seem,
resides in its capacity to respond to the needs of those sections of society who are at risk
of human rights violations. The NHRC has made special efforts to deal with such
issuesWhether they are Alleged atrocities on adivasis in Kerala by public servants,9 or
exploitation of tribals by land lords and mafia 10, rehabilitation of people displaced by
mega projects, or issues relating to disabled, dalits, mental health patients 11or

8 Human Rights and Law, Paras Diwan

9 NHRC, Human Rights Newsletter (New Delhi, April 2003
10 NHRC Annual Report 1999-2000, p.53
11 NHRC, ‘ Quality Assurance in Mental Health’, (New Delhi, 1999
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rehabilitation of widows of vrindavan. It also dealt with appalling practices like bonded
labour and manual scavenging12

Economic Social, Cultural Rights: Traditionally NHRCs, like most international human
rights bodies, have focused on civil and political rights but this has changed in recent
times. In 2000 while its annual report for the year 1998-1999 was being tabled in the
Parliament the NHRC raised the fundamental questions of equity and justice in the
country and called for policies for ensuring economic and social rights.

IMPORTANT CASES DECIDED BY NHRC

National Human Rights Commission v. State of Arunachal Pradesh13

The Commission under Article 32 of the Indian Constitution has filed a writ petition as a
public interest petition before the Supreme Court of India. The Commission filed this
petition mainly for the enforcement of fundamental rights under Article 21 of the
Constitution.In this case a large number of refugees from East Pakistan were displaced in
1964 due to Kaptain Hydel Project. These displaced Chakmas had taken shelter in North-
Eastern States of India

There were two main issues involved in this case; (1) conferring of citizenship; (2) fear of
persecution by certain sections of the citizens of Arunachal Pradesh.

In this case the Commission contended before the Court that the Commission found
serving of quit notices by All Arunachal Pradesh Students Union (AAPSU) to Chakmas
and their attempted enforcement appeared to be supported by the officers of Arunachal
Pradesh. The State government deliberately delayed the disposal of the matter by not
furnishing the required response to NHRC and infact assisted in the enforcement of
eviction of the Chakmas from the State through its agencies.

The Court after hearing the argument directed the government of Arunachal Pradesh to
ensure the life and personal liberty of each and every Chakma residing within the State.
The significance of this judgement also lies in clearing the doubts regarding the
applicability of fundamental rights to refugees. This decision rules that foreigners are
entitled to enjoy the protection of right to life and liberty under Article 21 of the Indian
Constitution. Timely intervention by the Commission has saved the life of thousands of
innocent Chakma refugees from AAPSU.

Indian Council of Legal Aid and Advice and others14

12 5 NHRC Annual Report 1999-2000 61-62 for NHRC

13 1996 AIR 1234, 1996 SCC (1) 742
14 1995 AIR 691, 1995 SCC (1) 73
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On 3rd December, 1996, the Commission took cognizance of a letter from Chaturanan
Mishra, then Union Minister for Agriculture regarding starvation deaths due to the
drought in Bolangir district of Orissa. In similar matter a Writ petition was filed on 23
December 1996 by the Indian Council of Legal Aid and Advice and others before the
Supreme Court of India under Article 32 of the Constitution. The petition alleged that
deaths by starvation continued to occur in certain districts of Orissa. The Supreme Court
of India on 26th July 1997 directed that since matter is seized with the NHRC and is
expected to deliver some order, the petitioner can approach to the Commission. Realising
the urgency of the matter the Commission acted quickly and initially prepared an interim
measure for the two years period and also requested the Orissa State Government to
constitute a Committee to examine all aspects of the Land Reform question. The
Commission observed that as starvation deaths reported from some pockets of the
country are invariably the consequence of misgovernance resulting from acts of
commission on the part of the public servant. The Commission strongly supported the
view that to be free from hunger is a Fundamental Right of the people of the country.
Starvation, hence, constitutes a gross denial and violation of this right.

The Commission organized a meeting with leading experts on the subject, in January,
2004 to discuss issues relating to Right to Food. The Commission has approved the
constitution of a Core Group on Right to Food that can advise on issues referred to it and
also suggest appropriate programmes, which can be undertaken by the Commission. By
this decision it is firmly established in the context of India that economic, social and
cultural rights are treated par with the civil and political rights before the India Courts
and the Commission. India is amongst the view countries in the world, which have
accorded justiciability of economic, social and cultural rights.

Gujarat Communal Riot

The commission took suo moto action on communal riot which took place in Gujarat in
early 2002; the decision to take action was based of media reports, both print and
electronic. The Commission also received an e-mail communication requesting the
Commission to intervene. A team of the Commission had visited Gujarat between 19 to
22 March 2002 and prepared a confidential report, which is latter made to the public. The
release of the confidential report was initially withheld to provide an opportunity to the
Gujarat government to comment on its contents, given the sensitivity of the allegations
contained in it unfortunately, the State government did not bother much about this report.
The Commission observed that the State has failed to discharge its primary and
inescapable responsibility to protect the rights to life, liberty, equality and dignity of all of
those who constitute it. The principle of res ipsa loquitur (the affair speaking for itself)
applies in this case in assessing the degree of State responsibility in the failure to protect
the Constitutional rights of the people of Gujarat. The responsibility of the State extended

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not only to the acts of its own agents, but also to those of non-State players within its
jurisdiction.

Punjab Mass Cremation Order

Two writ petitions 15 were filed before the Supreme Court of India containing serious
allegations about large-scale cremations resorted to by the Punjab Police of persons
allegedly killed in what were termed as “encounters”. The main thrust of the Writ
Petitions was that there were extra-judicial executions and hasty and secret cremations
rendering the State liable for action. These petitions were largely relied on a press note of
16th January 1995 by the Human Rights Wing of the Shiromani Akali Dal under the
caption “Disappeared” “cremation ground”. The note alleged that the Punjab Police had
cremated a large number of human bodies after labelling them as unidentified. The
Supreme Court after examining the report submitted to the Court by Central Bureau of
Investigation (CBI), relating to cremation of dead bodies observed that report indicates
585 dead bodies were fully identified, 274 partially identified and 1238 unidentified .

On 12 December 1996 the Court requested the Commission to have the matter examined
in accordance with law and determine all the issues related with the case.While granting
the compensation the Commission observed, it is now a well accepted proposition in
most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and
indeed an effective and sometimes perhaps the only suitable remedy for redressal of the
established infringement of the fundamental right of life of a citizen by the public
servants and the State. The claim of the citizen is based on the principle of strict liability
to which the defence of sovereign immunity is not available and the citizen must receive
the amount of compensation.

LIMITATIONS OF NHRC
1. NHRC does not have any mechanism of investigation. In majority cases, it asks
the concerned Central and State Governments to investigate the cases of the
violation of Human Rights
2. It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-
General of India) due to its incapacity to render any practical relief to the
aggrieved party.
3. NHRC can only make recommendations, without the power to enforce decisions.
4. Many times NHRC is viewed as post-retirement destinations for judges and
bureaucrats with political affiliation moreover, inadequacy of funds also hamper
its working.

15 Writ Petition (Crl.) No. 497\95, Paramjit Kaur v. State of Punjab and others and Writ
Petition (Crl.) No. 447\95, Committee for Information and Initiative on Punjab v. State
of Punjab
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 5. A large number of grievances go unaddressed because NHRC cannot investigate
the complaint registered after one year of incident.
6. Government often out rightly rejects recommendation of NHRC or there is partial
compliance to these recommendations.
7. State human rights commissions cannot call for information from the national
government, which means that they are implicitly denied the power to investigate
armed forces under national control.
8. National Human Rights Commission powers related to violations of human rights
by the armed forces have been largely restricted.

SUGGESTIONS

1. NHRC efficacy can be enhanced by government if commission decisions are

made enforceable.
2. There is need to change in composition of commission by including members
from civil society and activists.
3. NHRC needs to develop an independent cadre of staff with appropriate
experience.
4. To improve and strengthen the human rights situation in India, state and non state
actors need to work together.

CONCLUSION
From its inception the Commission attracted much suspicion because of its status as a
government institution. However, with the passage of time it has been able to establish its
integrity and commitment. The Commission was able to demonstrate its ability to work
independently and impartially, which is evident by its recommendations. Considering
India’s extensive territorial domain, the vastness of its population and the complexity of
social structure, cases of violation of rights whether by agencies of the State or by
private individuals or groups, may occur despite its best efforts.

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