ESSAYS ON

COMMISSIONS FOR PROTECTION OF CHILD RIGHTS IN INDIA

By

Centre for Child and the Law

National Law School of India University (CCL-NLSIU)
Nagarbhavi, Bangalore 560 242
Tel/fax: 080-23160528
Email: cclnls@nls.ac.in and ccl@nls.ac.in

With Support from

TATA TRUSTS

April 2018
© Centre for Child and the Law, National Law School of India University, 2018

Any part of this publication may be freely reproduced with the appropriate acknowledgement.
Permission to translate all or any part of this booklet must be obtained from the Centre for Child
and the Law, National Law School of India University, Bangalore, India.

Authors: Swagata Raha, Archana Mehendale, Shanta Sinha & Nina Nayak

Editors: Swagata Raha & Arlene Manoharan

ISBN Number: 978-93-83363-6

 Table of Contents
Item Page
No.

About the Centre for Child and the Law, NLSIU

Abbreviations

Acknowledgements

Introduction
By Arlene Manoharan

Chapter 1: Establishment of CPCR in India – charting the legislative history

By Archana Mehendale

Chapter 2. International Legal framework and CPCRs

By Swagata Raha
Chapter 3: Commissions for Protection of Child Rights and other Human Rights
Institutions in India: Challenges and Possibilities

By Swagata Raha
Chapter 4: Monitoring Role of CPCRs under the POCSO Act, 2012

By Nina Nayak
Chapter 5: Reflections about the National Commission for Protection of Child
Rights

By Shantha Sinha
Annexure A: Recommended Amendments to the Commission for Protection of
Child Rights Act, 2005 & the NCPCR rules, 2006 (As amended in 2014)

3
 About the Centre for Child and the Law, NLSIU

About the Centre for Child and the Law, National Law School of India University
The Centre for Child and the Law (CCL) is a specialized research centre of the National Law School
of India University (NLSIU), and was established in 1996. CCL adopts a multi-disciplinary
integrated praxis based child rights approach while working on issues concerning children and the
law. The main thrust of the work is on Juvenile Justice and Child Protection, Universalisation of
Quality Equitable School Education, Child Labour, Protection of Children from Sexual Offences,
Justice to Children through Independent Human Rights Institutions, Right to Food, and Child
Marriage. The mission of CCL NLSIU is to institutionalize a culture of respect for child rights in
India.
The Juvenile Justice team at CCL NLSIU engages in research, teaching, law reform and system
reform while also providing multi-disciplinary, psycho-socio and legal services to a limited number
of children and families journeying through the juvenile justice system, to enable them to claim their
rights while also working towards positively impacting policy, law and practice on issues concerning
children. For more information see – www.nls.ac.in/ccl.
Members of the Juvenile Justice Programme at the CCL-NLSIU have undertaken extensive work on
the issue of Commissions for Children in India, since 1999, including research; advocacy to inform
policy, law and delegated legislation; capacity building of the Commissions as well as other
stakeholders working on child rights about the Commissions; awareness generation through
delivering of lectures about the Commissions at various fora, and knowledge generation through
publications (see details of these publications at the end of this section).
Work on this issue was initiated at the instance of the Ministry of Social Justice and Empowerment,
Government of India, in 1999, when a request was made to NLSIU to draft and submit a Bill on
Commissions for Children. CCL-NLSIU subsequently submitted a critique of the Commissions for
Protection of Child Rights Bill, 2005 to the Parliamentary Standing Committee reviewing the Bill1, to
inform the 165th Report of this Committee.

Research and other activities on this issue was then sustained, including through three externally
funded projects supported by UNICEF- India country office, Tata Trusts and UNICEF- Field
office for Tamil Nadu and Kerala.

Some of the key achievements and contributions by CCL-NLSIU in the area of human rights
institutions for children are as follows:

1CCL NLSIU Submission to the Parliamentary Standing Committee reviewing the Commissions for
Protection of Child Rights Bill, 2005, on 30th June 2005, available at
https://www.nls.ac.in/ccl/jjdocuments/critique.pdf
4
Policy Research on Commissions for Children and Human Rights Institutions in India
 Research for recommendations for reform of the CPCR Act and Rules, was undertaken and
submitted to the Ministry of Women and Child Development, Government of India on 9
June 2014, at the request of the Joint Secretary, MWCD.2
 An analytical Comparative table on the State SCPCR Rules was prepared to inform
rulemaking in other states.3

Contribution towards Rule-making and advisory

 The CCL-NLSIU team informed and influenced to varying degrees, the rule making
processes in all states across the country. The Bihar SCPCR Rules, 2010 and the Telangana
SCPCR Rules, 2015 have been informed by research done at CCL-NLSIU.
 Research done by CCL-NLSIU was used by NGOs in Public Interest Litigations filed in the
Karnataka High Court and Gujarat High Court on matters concerning state Rules and
notifications.4 In both the cases, the Courts passed favourable directions to the State
Governments.
 The Ministry of Human Resources Development issued an advisory to all state governments
on Section 32 and 33 of the RTE Act, 2009.5 This was developed by CCL-NLSIU as part of
this project.

Contribution towards Establishment of SCPCRs and Selection Procedures

 The Government of Andhra Pradesh considered the note prepared and submitted to them by
CCL-NLSIU on legal feasibility of constituting a joint commission for women and children.
This lead to the government rejecting its earlier proposal of a joint commission and deciding
to constitute a separate commission for children.
 The CCL-NLSIU team influenced the procedures for selection of Chairperson and Members
under the CPCR Act in Maharashtra, Delhi and Karnataka, where advertisements for the
positions were issued for the first time. This was as a result of the Guidelines for Selection of
Chairperson and Members of CPCRs which was developed by CCL and shared with the
Ministry of Women and Child Development and State Governments.6

Creation of Resource Materials and Capacity Building of CPCRs

 A body of knowledge and literature was developed about children‘s commissions which
would help in capacity building, improved practice, further research and law reform, at the
national as well as state level.7

2 Refer to Annexure of this publication.

3 Available at https://www.nls.ac.in/ccl/justicetochildren/rules.pdf
4 WP 13234/2011 (Karnataka High Court); Dalit Hak Rakshak Manch v State of Gujarat, Writ Petition (PIL)

No. 142 of 2011.

5 Ministry of Human Resource Development, Advisory on implementation of Sections 31 and 32 of the Right

of Children to Free and Compulsory Education Act, 2009, (14 February 2012),
http://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/30.pdf
6 CCL-NLSIU, Suggested Guidelines for Selection of Chairperson and Members under the Commission for

Protection of Child Rights Act, 2005, available at https://www.nls.ac.in/ccl/justicetochildren/SCG2010.pdf

7 Manual for Commissions for Protection of Child Rights - How to implement The Commissions for Protection of Child Rights

Act, 2005 Authors: Swagata Raha, Dr. Archana Mehendale, Arlene Manoharan Editor: Arlene Manoharan,
(2012) ISBN No: 978-81-925521-6-3; Dr. Archana Mehendale, Handbook for Local Authorities on The
5
  Capacity building programs were conducted for the Chairperson and Members of SCPCRs
in Bihar (2013-14), West Bengal (2013), and Karnataka (2013, 2014, 2015 and 2016)
 Socio-legal technical support was given to several SCPCRs as per their requirements.
 State level training programmes were conducted for grass root level organizations and
networks in eight states for the first time focusing on use of human rights institutions for
accessing justice for children.
 Constructive dialogue was facilitated among SCPCRs, NGOs and State government on
protecting and promoting child rights through Round Table discussions in four states.
 CCL NLSIU also provided Technical Support to the Kerala SCPCR from November 2013-
February 2014 and enabled the establishment of three Cells – A Complaints Cell, an RTE
Cell and a POCSO Cell.

Contribution toward Inter-Commission Coordination on Child Rights

 For the first time in the country, representatives of all national human rights institutions
were brought together to participate in an Inter-Commission Dialogue held in New Delhi
on 22nd February 2012 to deliberate on child rights and evolve a plan of action. A detailed
report is available at CCL-NLSIU, Inter-Commission Dialogue on Child Rights in India – A Report,
(22 February 2012)
https://www.nls.ac.in/ccl/justicetochildren/ReportCommissionDialogue.pdf

Contribution as member of Committees established by NCPCR and the KSCPCR

 Arlene Manoharan was appointed as a member of the NCPCR Advisory Committee on
Juvenile Justice and on the POCSO Act, 2012, (2014) and the NCPCR working group on
Children in Contact with the Railways (2015). She was also appointed as a member of the
Expert Committee to support the KCPCR Cell on Juvenile Justice, in December 2017,
which reviewed the implementation of the JJ Act in the State.

Commissions for Protection of Child Rights Act & Grievance Redressal under The Right of Children to Free and Compulsory
Education Act, 2009 (2012), Editor: Arlene Manoharan, ISBN No: 978-81-925521-9-4; Arlene Manoharan and
Dr. Archana Mehendale, Commissions for Protection of Child Rights - Answers to Common Questions Children May
Have, Editor: Cheryl Bartholomeusz (2012), ISBN No: 978-81-925521-7-0; Swagata Raha and Dr.Archana
Mehendale, Frequently Asked Questions on the Commissions for Protection of Child Rights Act, 2005, Editor: Arlene
Manoharan (2012), ISBN No: 978-81-925521-8-7.
6
 Abbreviations

CLAA Criminal Law (Amendment) Act, 2013

CPCR Act Commissions for Protection of Child Rights Act, 2005
Cr.P.C Code of Criminal Procedure, 1973
CWC Child Welfare Committee
DWCD Department of Women and Child Development
HCC-JJ High Court Committee on Juvenile Justice
HIV/AIDS Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome
HRI Human Rights Institution
ICHRP International Council on Human Rights Policy
ICPS Integrated Child Protection Scheme
IPC Indian Penal Code
JJ Act, 2015 Juvenile Justice (Care and Protection of Children) Act, 2015
JJB Juvenile Justice Board
JJ MR, 2016 Juvenile Justice (Care and Protection of Children) Model Rules, 2016
MWCD Ministry of Women and Child Development
NCM National Commission for Minorities
NCPCR National Commission for Protection of Child Rights
NCSC National Commission for Scheduled Castes
NCST National Commission for Scheduled Tribes
NCW National Commission for Women
NGO Non-governmental organization
NHRC National Human Rights Commission
NHRI National Human Rights Institution
POCSO Act Protection of Children from Sexual Offences Act, 2012
PSC Parliamentary Standing Committee
RTE Right of Children to Free and Compulsory Education Act, 2009
SCPCR State Commission for Protection of Child Rights
SCM State Commission for Minorities
SCW State Commission for Women
SHRC State Human Rights Commission
UNCRC United Nations Convention on the Rights of the Child, 1989

7
 Acknowledgements

This publication on Essays on Commissions for Protection of Child Rights in India has been the
product of the work of team of individuals who were working as researchers or consultants in in the
Juvenile Justice Program at CCL NLSIU, and external authors. We would like to thank each one of
them for the contributed to this publication.

The credit for conceptualizing the publication goes to Arlene Manoharan, Fellow and Program Head
- Program on Juvenile Justice, CCL NLSIU, as well as Swagata Raha, and Archana Mehendale,
consultants to CCL NLSIU.

Chapters 1, 2, 3 and 5 of this publication was edited by Arlene Manoharan, and Chapters 1, 4, and 5
were edited by Swagata Raha.

This Monograph is structured as follows:

Chapter 1 on The Establishment of Commissions for Protection of Child Rights in India has
been authored by Dr. Archana Mehendale, who was not only a Senior Researcher at CCL NLSIU in its
early years, but later came back to work as a researcher and then as a consultant, bringing in her rich
insights and experience of work on child rights issues.
Chapter 2 on The International Legal and Commissions for Children has been authored by
Swagata Raha, Sr. Research Associate, CCL NLSIU (Consultant).

Chapter 3 on The Commissions for Protection of Child Rights and other Human Rights
Institutions in India: Challenges and Possibilities has been authored by Swagata Raha, Sr.
Research Associate, CCL NLSIU (Consultant).

Chapter 4: Monitoring Role of CPCRs under the POCSO Act, 2012 has been authored by Nina
Nayak, who was former Chairperson of the Karnataka State Commission for Protection of Child
Rights and subsequently a member of the NCPCR as well.
Chapter 5: Reflections about the National Commission for Protection of Child Rights has
been authored by Dr. Shantha Sinha, who was appointed as the Chairperson of the first NCPCR in
India, with a tenure from 2007 -2013.
We also want to acknowledge the administrative support provided by Ms. Pushpa N., Ms. Bharti R.
C. and others over the years.
We are also grateful to Tata Trusts for supporting the researchers and the publication of this
Monograph.
A word of thanks is also due to Prof. Dr. V.S. Elizabeth, Coordinator, CCL-NLSIU.

8
 Introduction
By Arlene Manoharan
Children are vulnerable, dependent on adults and often unable to exercise agency to voice their
views or assert their power to claim their rights. The Constitution of India, one of the most widely
acclaimed Constitutions in the world has a plethora of provisions that together form a vision for
children based on a life of dignity.
India ratified the United Nations Convention on the Rights of the Child, 1989 in 1992, and has
recognized the legal obligations that arise from having done so, in The Preamble to the
Commissions for Protection of Child Rights Act, 2005.
Article 4, UNCRC requires all State parties to ‗undertake all appropriate legislative, administrative,
and other measures for the implementation of the rights‘ recognized in the UNCRC, and with
regard to economic, social and cultural rights, ‗undertake such measures to the maximum extent of
their available resources…‘
The recommendations of the UN Committee on Rights of the Child on India's report, both in 2000
and 2004, had specifically focused on an expeditious establishment of a Children's Commission, in
accordance with the Principles relating to the Status of National Institutions (1993) adopted by the
UN General Assembly to guide the establishment and work of national human rights institutions
(also called the Paris Principles).8
The State is therefore obligated to ensure that it frames legislations that enable compliance with the
UNCRC, and the Constitution, but also takes all appropriate measures to ensure their effective
implementation. The Commissions for Protection of Child Rights Act 2005, in Section 13,
empowers the National and State Commissions to review the safeguards provided by or under any
law, study treaties and other international instruments and undertake periodical review of existing
policies, programmes and other activities on child rights, undertake and promote research in the
field of child rights, etc. Although the CPCRs are newly established in most states, they provide an
important forum to take up matters related to child rights violations and deprivation of child rights.
Other human rights institutions such as the National and State Human Rights Commissions
(N/SHRCs), National and State Commissions for Women (N/SCW), National Commission for
Scheduled Castes (NCSC), National Commission for Minorities (NCM) and National Commission
for Scheduled Tribes (NCST) can also be approached with complaints regarding the violation or
deprivation of children‘s rights.
Chapter 1 on The Establishment of Commissions for Protection of Child Rights in India, by
Archana Mehendale, attempts to chart the legislative history of the Commissions for Protection of
Child Rights Act, 2005. It discusses the various processes that led to its formulation and notification
- the issues that got debated and finally, the implications of these on what was finally included in the
statute. The legislative history of CPCRs in India is mapped, alongside an analysis of key milestones
and the political processes that unfolded. This analysis can enable the comparison of the discourse
on CPCRs that was taking place at the international level, with that at the domestic level. The

8 Principles relating to the Status of National Institutions (The Paris Principles) adopted by General Assembly
resolution 48/134 of 20 December 1993 accessed from
http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx on April 6, 2018.
9
concluding section provides an opportunity to re-visit the key findings of the review of this
legislative history.
Chapter 2 on The International Legal and Commissions for Children by Swagata Raha,
provides a broad overview of the international standards related to National Human Rights
Institutions and contrasts them with the provisions of the CPCR Act, 2005 as well as the NCPCR
Rules, 2006, and State Rules, to assess the extent to which domestic law complies with international
standards. The critical question the Chapter examines is whether the Indian legislative framework
guarantees CPCRs their foundational, functional, and financial independence as a human rights
institution.

Chapter 3 on The Commissions for Protection of Child Rights and other Human Rights
Institutions in India: Challenges and Possibilities by Swagata Raha, explains the basis for
establishment of the various human rights institutions in India, contrasts their powers and
structures, examines whether multiple human rights institutions are more effective than a single
body, and identifies areas of convergence and coordination.

Chapter 4: Monitoring Role of CPCRs under the POCSO Act, 2012 by Nina Nayak provides a
brief introduction to the Protection of Children from Sexual Offences Act, 2012, the monitoring
role of the CPCRs under this Act; and anecdotal information about interventions undertaken by the
first NCPCR in India from the year 2007 - 2004; and some recommendations for the way forward in
the concluding section.
Chapter 5: Reflections about the National Commission for Protection of Child Rights by
Shantha Sinha provides a brief introduction to the International principles and obligations that
govern independent human rights institutions such as the NCPCR; an introduction to the NCPCR -
its powers and functions; anecdotal information about interventions undertaken by the first NCPCR
in India from the year 2007 - 2004; a note on the NCPCR and its engagement with Government;
key challenges faced by the NCPCR during this tenure, and some recommendations for the way
forward in the concluding section.
It is hoped that this Monograph provides the reader a deeper understanding of the CPCR Act, 2005,
and the potential for engaging with this human rights institution to achieve the objects of this statute
and the vision of the Constitution as well as the UNCRC. The experiential insights by the
Chairperson and one member of the first NCPCR established under this statute, provides a window
into the challenges and opportunities faced by these Commissions, in their efforts to hold the state
to account, vis a vis their legal obligations. The nuanced insights about the legislative history that
preceded its notification, particularly the unfortunate dilution of the provisions that were originally
envisaged to create a robust human rights institution for children in India, provides an opportunity
for all those committed to the promotion, protection and monitoring of children‘s rights to think
more seriously about the need for more informed and incisive advocacy on and with children as
rights holders, so as to make the state accountable to children, particularly given the lack of priority
that is given to the rights of children over the years in India, as reflected in the budgetary allocation
for children in the national budget or the budget to support the effective functioning of these
human rights institutions for children, the seriousness with which appointments are made to these
CPCRs, and the poor implementation of existing laws relating to children.

10
 Chapter 1: Establishment of CPCR in India – charting the legislative history
By Dr. Archana Mehendale
1.1. Background
Ratification of international treaties is a political exercise, a process meant to endorse the aspirations
of governments in respecting human rights. In a dualist system, as the kind followed in India, the
provisions of international treaties can come into force only after these are translated into domestic
legislation. This traditional paradigm was changed with the Supreme Court directions in the case of
Vishaka v. State of Rajasthan,1 wherein the court held that international conventions and norms should
be read into fundamental rights in the absence of domestic law occupying the field. Furthermore,
the court held that it could rely on international conventions in case of a void in the domestic law.2
This judgment has had far reaching ramifications with regards to domestic applicability of
internationally ratified treaties, because enactment of legislation in response to commitments made
under international treaties is not very common in India.3 It is particularly significant in the context
of child rights, wherein several provisions of the United Nations Convention on Rights of the Child,
1989, ratified by India in November 1992, (UNCRC) have not been translated into domestic
legislation.
With this background, the enactment of the Commissions for Protection of Child Rights Act, 2005,
(CPCR Act), in response to India‘s international obligations makes an interesting case study. The
preamble to the statute recalls India's participation in the United Nations General Assembly Summit
in 1990, which adopted a Declaration on Survival, Protection and Development of Children, and
India's accession of the UNCRC, which ―makes it incumbent upon signatory States to take all
necessary steps to protect children's rights enumerated in the Convention‖. It also reaffirms India‘s
National Charter for Children, 2003 and the Outcome Document titled ―A World Fit for Children‖
adopted during the UN General Assembly Special Session on Children in 2002. The Preamble
acknowledges that ―it is expedient to enact a law relating to children to give effect to the policies
adopted by the Government in this regard, standards prescribed in the CRC and all other relevant
international instruments‖. It is thus indisputable that the CPCR Act was adopted to give effect to
the various commitments made under international treaties. By articulating the definition of child
rights as children's rights adopted in the UNCRC,4 and by mandating the Commissions to protect
and promote these rights, the CPCR Act has further endorsed the provisions of an international
treaty.
However, transformation of international norms and standards into domestic systems is not a
routine activity. Domestic integration of policy ideas arising from international obligations requires
alignment of political, legal, financial and administrative concerns and implies a formal governmental
commitment expressed during processes of negotiations, contestations, adaptations, and ratification.

1 AIR 1997 SC 3011.

2 AIR 1997 SC 3011.
3 For instance, ratification of international treaties such as International Covenant on Economic, Social and

Cultural Rights (ICESCR), 1966; Convention for Elimination of Discrimination Against Women, 1979;
Optional Protocol to the Convention on the Rights of the Child (CRC) on the Involvement of Children in
Armed Conflict, 2000 has not resulted in formulation of a special legislation to give effect to the
commitments.
4 CPCR Act, 2005, Section 2(b).

11
Evidence shows that international factors influence the establishment of human rights institutions.
Makhija and Raha (2011) argue how governments establish human rights institutions to avoid
international scrutiny into alleged human rights violations.5 In the case of establishment of the
National Human Rights Commission in India, Sripati (2004) argues that the government took such a
measure to detract attention from police and army excesses.6
Mehendale (2004)7 discusses how the recommendations of the UN Committee on Rights of the
Child on India's report, both in 2000 and 2004, had specifically focused on an expeditious
establishment of a Children's Commission, in accordance with the Principles relating to the Status of
National Institutions (1993) adopted by the UN General Assembly to guide the establishment and
work of national human rights institutions (also called the Paris Principles).8
A study of policy iterations taking place at the domestic level tells us about the political readiness to
accept international obligations. It also reveals the rationale for such domestic integration and the
challenges that are likely to emerge once international legal norms are adopted into domestic
legislation and go through the stage of implementation. Using the CPCR Act as a case study, this
chapter argues that the political intention of establishing a human rights institution for children got
translated into a legislation through a series of policy processes which diluted how the nature of this
body was imagined. Using parliamentary debates as an indicator for political engagement and
contestation, the chapter argues that the CPCRs were based on a weak foundation of political
commitment to start with and this is reflected in the establishment and functioning of these
institutions. Furthermore, the implementation gap between policy formulation and implementation,
confirms that issues which impinged at the formulation stage remained unsettled and, in particular,
compromise the effective functioning of this institution.
This chapter attempts to chart the legislative history of this statute, discusses the various processes
that it went through, the issues that got debated and finally, the implications of these on what was
included in the statute. In the next section, the legislative history of CPCRs in India is mapped,
alongside an analysis of key milestones and the political processes that unfolded. This analysis can
enable the comparison of the discourse on CPCRs that was taking place at the international level,
with that at the domestic level. Finally, the concluding section will provide an opportunity to re-visit
the key findings of this review.
1.2. Legislative History of the CPCR Act
The legislative journey of establishing CPCRs in India was set in motion with the accession of the
UNCRC and fueled by the subsequent international treaty monitoring process, which include
submission of Country Reports and Periodic Reports and the Concluding Observations made by the
UN Committee on Rights of the Child.

5
Makhija, S and Raha, S. (2011) A Review of the Working of Karnataka State Human Rights Commission
and Karnataka State Commission for Women. Bangalore: Daksh and Accountability Initiative.
6
Sripati, V. (2004). India‘s National Human Rights Commission: A Shackled Commission?, 18 B.U. Int'l L.J.
1 (9).
7 Mehendale, A (2004) ‗Children‘s Commission: Re-opening the Debate‘ in Economic and Political Weekly,

Vol. XXXIX No. 34, August 21-27, 2004, pp.3791-3793.

8 Principles relating to the Status of National Institutions (The Paris Principles) adopted by General Assembly

resolution 48/134 of 20 December 1993 accessed from

http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx on April 6, 2018.
12
As discussed earlier, the Preamble to the CPCR Act clearly expressed the need to enact a legislation
that gave effect to child rights as prescribed by domestic and international standards. It also invoked
international instruments such as the Declaration on Survival, Protection and Development of
Children adopted by the United Nations General Assembly Summit in 1990, the Convention on
Rights of the Child (CRC) which India acceded in 1992 and the Outcome Document titled ―A
World Fit for Children‖ adopted by the United Nations General Assembly Special Session on
Children in 2002 and the national initiatives such as adoption of the National Charter for Children,
2003 in order to protect the rights of children. Thus, the establishment of an independent body to
monitor child rights and ensure the protection and promotion of such rights in India, can be seen
largely as a post-UNCRC phenomenon. While India‘s ratification of the CRC may have prompted
the government in setting up a body specifically focused on child rights through a central legislation,
as this chapter will discuss in the following sections, the nature and form of this body was
determined through domestic deliberations extending over nearly eight years.
1.2.1. International Influences
According to UNICEF (1997:2-3)9, independent statutory bodies established in various countries for
promoting the rights and interests of children have been commonly referred to as ombudsman,
commissioner for children or human rights commission. In well-established democracies, the work
of these bodies is related to the ―shortcomings of large bureaucratic government institutions in
applying complex rules and regulations‖ while in the new democracies, the work of these bodies
relates to ―protection and assertion of basic human rights‖. The first ombudsman for children was
established in 1981, in Norway, and even after the ratification of the UNCRC, only a handful of
countries had established such bodies to protect and promote rights of children at the domestic level
(UNICEF, 1997:3)10. The Committee on Rights of the Child has been recommending to the States
Parties to the UNCRC, that such bodies be established at the domestic level. The UNICEF report
cites the findings of the Committee which indicate that ―without independent bodies to monitor
implementation, children‘s rights are rarely, if ever, given the priority and scrutiny they require‖11
The Committee on the Rights of the Child in its Concluding Observations on the India Country
Report in 2000, acknowledged the intention of the Indian Government to establish a children‘s
commission.12 It encouraged the establishment of a statutory, independent body with the mandate of
regularly monitoring and evaluating progress in the implementation of the UNCRC at the federal,
state and local levels. It also suggested the commission be empowered to receive and address
complaints of violations of child rights, including violations from the security forces.13 Again, in
2004, when the Committee reviewed the First Periodic Report submitted by the Indian
Government, it recommended that India expedite the process and establish the Commission on the

9UNICEF (1997) Ombudswork for Children. Innocenti Digest No 1, retrieved from http://www.unicef-
irc.org/publications/pdf/digest1e.pdf on 12 June 2012
10 Ibid
11 Ibid at p. 12
12 Concluding Observations of Committee on Rights of the Child: India. CRC/C/15/Add.115 23 February

2000, Para 18.

13 Concluding Observations of Committee on Rights of the Child: India CRC/C/15/Add.115 dated 23 Feb

2000, para 19 on 12.6.2012.

13
basis of Paris Principles.14 It is thus evident that the efforts to establish a National Children‘s
Commission were already underway at the domestic level, even before the Committee on Rights of
the Child gave its first Concluding Observations. In a way, the obligation to report to an
international treaty monitoring body could have itself triggered the domestic proposals towards
enacting such legislation for establishing a body to monitor children's rights. Although India already
had a general human rights institution (National Human Rights Commission) and specialised human
rights institutions for women, minorities, Scheduled Castes and Scheduled Tribes, it did not impede
the proposal, but rather allowed the government to propose another specialised body, keeping in
mind the requirements under the UNCRC which it had ratified. A review of these domestic efforts
indicates that the process to formulate legislation for establishing a Commission exclusively for
protecting and promoting children‘s rights began in the late 90s. Although international influences
helped to set the ball rolling, the legislative history and an examination of domestic processes do not
reflect a studious application and learning from either international experience or standards.
1.2.2. Domestic Processes
The process of adoption of the CPCR Act stretched over eight years and went through two drafts,
one in 2001 and the second in 2005, and the tabling of the report of the Parliamentary Standing
Committee containing observations and recommendations on the official bill submitted in 2005.
The Bill was debated in both Houses of Parliament before it was sent for the President's assent. The
Act came into effect after the Government notified it on 15 February, 2007. A brief outline of the
timeline is given in Box 1.

14Concluding Observations of Committee on Rights of the Child: India UN CRC/C/15/Add.228 dated 26

Feb 2004, paras 17-18.
14
 Box 1: Adoption of the CPCR Act: a Timeline
1999- The MHRD started preparing a draft of The National Commission for Children Bill.
2000 – Concluding Observations of the Committee on Rights of the Child acknowledge the efforts
to frame a law.
2001 – The MHRD places The National Commission for Children Bill, 2001 on its website and
invites comments.
2003 – On 5 December, Mr Murli Manohar Joshi, Minister of Human Resources Development
introduced The National Commission for Children Bill in the Lok Sabha.
2004 – On 6 February, the Bill lapsed as the National Democratic Alliance government fell out of
power.
2004 – The Concluding Observations of the Committee on Rights of the Child encourage the
establishment of the Commission on the basis of Paris Principles.
2005 – On 2 May, The Commissions for Protection of Child Rights Bill, 2005 was introduced in the
Rajya Sabha.
On 27 May, the Bill was referred to the Parliamentary Standing Committee for review and
recommendations.
On 18 August, the report of the Committee was presented to the Rajya Sabha and laid before the
Lok Sabha.
On 21 December, the Lok Sabha passed the Bill.
On 23 December, the Rajya Sabha passed the Bill.
2006- On 20 January, the Bill received the assent of the President and was published in the Gazette
of India.
On 31 July, The National Commission for Protection of Child Rights Rules, 2006 was notified. On
29 December, The CPCR Act was amended so as to substitute the parent Ministry of Human
Resources Development with the Ministry or Department of Women and Child Development.
2007 – On 15 February, the Central Government notified that the Act shall come into force.
2014 – National Commission for Protection of Child Rights (Amendment) Rules, 2014 and National
Commission for Protection of Child Rights (Second Amendment) Rules, 2014 were notified

In the mid-90‘s, a few Private Members‘ Bills seeking to create a specialised institution for protecting
children‘s rights were introduced in the Parliament (Mehendale, 2004). The Ministry of Human
Resources Development, which then looked after the child rights portfolio, simultaneously initiated
15
a process for formulating a Bill on this matter, in 1999. A draft Bill was also placed on the Ministry‘s
website in 2001 to invite feedback from experts and civil society. The preamble of the Bill stated the
objectives of the Bill to be; ―To constitute a National Commission for the better protection of child
rights and for promoting the best interests of the child for matters connected therewith and
incidental thereto, within the larger context of promoting and upholding values to strengthen the
family, society and the nation‖. Interestingly, the reference to the ‗best interest of the child‘,
considered to be one of the key guiding principles of the UNCRC, and the promotion of ―values to
strengthen the family, society and nation‖ were dropped from the Bill subsequently and references
to these are missing in the preamble to the current statute. Some of the main provisions of the 2001
Bill were:
1. Composition: The Chairperson of the National Commission was meant to be a retired judge of
the Supreme Court of India and at the State Commission, a retired judge of the High Court. There
was a provision for a Vice-Chairperson and six other Members from different fields and a Member
Secretary at the national level and a Secretary at the State level, who would be the Chief Executive
Officer of the Commission.
2. Selection and Appointment: The Chairperson, Vice-Chairperson and Members of the National
Commission were to be appointed by the President of India, by warrant under his hand and seal.
Every appointment was to be made after obtaining the recommendations of a Committee on
Appointments consisting of the Prime Minister (Chairperson), the Speaker of the Lok Sabha, the
Minister in charge of Women and Children, the Leader of the Opposition in the Lok Sabha and the
Leader of the Opposition in the Rajya Sabha. Similarly, at the State level, they were to be appointed
by the Governor, after obtaining a recommendation from the Committee on Appointments
consisting of the Chief Minister (Chairperson), the Speaker of the Legislative Assembly, the Minister
in charge of Women and Children and the Leader of the Opposition in the Legislative Assembly.
3. Removal: The Chairperson, Vice-Chairperson or any other Member of the Commission could be
removed from office by order of the President/Governor, as the case may be, on the ground of
proved misbehaviour or incapacity, after the Supreme Court/High Court inquiry as the case may be.
This could be undertaken on reference being made to it by the President/Governor, in accordance
with the procedure prescribed by the Supreme Court/High Court.
4. Term of Office: The term of office of the Chairperson, Vice-Chairperson and Member was
prescribed as five years, or until the age of 65/70 years, whichever is earlier. The Bill also barred the
Chairperson, Vice-Chairperson or Members from seeking further employment under the
Government of India or under the Government of any State.
5. Procedure: The Commission could regulate its own procedure.
6. Staff and Officers: The Central Government and State Governments were obliged to provide
officers and staff for the proper functioning of the respective Commissions. Further, the State
Governments were required to provide to the State Commissions (a) an officer not below the rank
of a Secretary to the State Government, who shall be the Secretary of the State Commission; and (b)
such police and investigative staff under an officer not below the rank of a Deputy Inspector
General of Police.
7. Powers and Functions: The Commission was empowered with the powers of a civil court, for
purposes of inquiry. It was also provided with police powers of search and seizure. For the purposes
16
of investigation, the Commissions could utilise the services of any officer or investigation agency of
the Central or State Government and the officer or agency was required to submit a report to the
Commission, within a time-period specified by the Commission. The Commission could also
intervene in any complaint/proceeding involving any allegation of violation of child rights pending
before a court with the approval of such court.
The first draft of the 2001 Bill also included a section dealing with offences against children and
contained stringent measures against habitual offenders, including publication of their names and
banishment from specified areas. A review of the above mentioned provisions shows that the Bill
envisaged a national level Commission for children, on the lines of the National Human Rights
Commission and the provisions therein were similar to the provisions of The Protection of Human
Rights Act, 1993, (PHR Act), in terms of appointments and removal clauses, regulation of
procedures, terms of office, and inquiry powers. However, it did not clearly provide for investigation
machinery and powers to the Commission similar to what was provided for human rights
commissions. While this first draft of 2001 Bill envisaged a strong and powerful body, similar to the
National and State Human Rights Commission, these provisions were subsequently diluted in the
revised Bill dated 9 July 2001 and the entire structure of the Commission was changed to make it
into a weaker institution than what was originally proposed in the first draft of the National
Commission for Children Bill, 2001. .
On 5 December 2003, the Bill was introduced in the Lok Sabha, during the tenure of the National
Democratic Alliance (NDA) government. While introducing this Bill, the then Union Minister for
Human Resources Development, Dr. Murli Manohar Joshi stated that having such a Commission
was an ―international commitment‖ as part of ratification of an international charter. He
acknowledged that there was a demand for such a body from the State Governments as well as the
Standing Committee. But the Bill lapsed after the Lok Sabha dissolved on 6 February 2004. When
the United Progressive Alliance (UPA) government came to power, it introduced The Commissions
for Protection of Child Rights Bill, 2005 in the Lok Sabha on 2 May, 2005.
It was subsequently referred to the Department-related Parliamentary Standing Committee (PSC) on
Human Resources Development on 27 May 2005 for review and recommendations. The PSC
invited comments on the Bill and received 28 memoranda from various individuals and
organizations.
Table No.1: Recommendations of the 165th Report of the Parliamentary Standing Committee
on Human Resource Development on the Commissions for Protection of Child Rights Bill,
200515

Recommendations made by the PSC Recommendations made by the PSC not

accepted by the Government accepted by the Government

 Inclusion of two women members.  Appointment by President/Governor on

Restriction on the number of terms of the recommendations of a high-powered
office to two. Committee.
15Report of the Rajya Sabha Department related Parliamentary Standing Committee on Human Resource
Development, 165th report available here:
http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/165threport.
htm accessed on 16 April 2018
17
Recommendations made by the PSC Recommendations made by the PSC not
accepted by the Government accepted by the Government

 Vacancy of office to be filled within 90  Removal by the President after a proper

days.
 Meetings to be held at least once in three
months.
 Empowering the Commission to look
into various forms of child rights
violations and deprivations.
 Requirement of tabling of annual report
in the Parliament within one year of its
receipt.
inquiry.
 Granting powers to the Commission to
regulate its own procedure.
 Allowing the Commission to appoint
committees, rapporteurs, amicus curiae.
 Granting the Commission the powers of
investigation and inquiry, similar to the
National Human Rights Commission.
 Making it mandatory for the State
Governments to establish State
Commissions for Protection of Child
Rights.
 Expressly prohibiting State Commissions
from taking up complaints pending
before the National Commission.
 Section 25 dealing with establishment of
Children‘s Court to be amended and
elaborated.
 The Chairperson of the National
Commission for Children may be
deemed to a Member of the National
Human Rights Commission.

 Inclusion of certain provisions in the

Rules, such as co-ordination between
National and State Commissions, linkages
between the Commissions and other
human rights institutions and statutory
authorities like Juvenile Justice Boards
and Child Welfare Committees, and
formation of a National Co-ordination
Group with representatives of all
Ministries/Departments.

A review of the recommendations that were accepted and those that were not by the Ministry of
Human Resources Development reveals an interesting picture. It accepted only those
recommendations made by the PSC that were simple and relatively easy to incorporate, thereby
curtailing the powers and stature of the Commission in comparison to that of NHRC. The
suggestions made by the PSC that were not accepted by the Government were therefore significant,
ones that had an important bearing on the status, independence and powers of the Commission.
These dealt with the appointments and removal, functions of the Commission and also the
18
relationship between the Commission and the other statutory bodies performing different child
rights related functions. Even the recommendation to provide greater clarity to the provision on the
establishment of the Children‘s Court was not accepted by the Ministry. The recommendation that
the Chairperson of the National Commission for Children be a deemed Member of the National
Human Rights Commission was also not accepted. .
The National Commission for Protection of Child Rights Rules, 2006 (NCPCR Rules, 2006) also did
not incorporate the PSC‘s recommendations on the co-ordination between ational and tate
Commissions, the linkages between the Commissions and other human rights institutions and
statutory authorities like Juvenile Justice Boards and Child Welfare Committees, and the formation
of a National Co-ordination Group with representatives of all Ministries/Departments. None of the
State Governments have also incorporated these in their respective Rules as they have broadly
modeled their State Rules on the basis of the NCPCR Rules, 2006.
An analysis of the recommendations made by the PSC indicates that it had made astute observations
and meaningful recommendations with the intention of making the Commission a strong watchdog
for child rights. The recommendations also reflect clarity of understanding on part of the PSC about
the proposal to constitute an independent human rights institution for protecting, fulfilling and
promoting child rights itself and its role in respecting child rights in India. The PSC had endorsed
the key provisions of the 2001 Bill and conceptualized the Commission as a strong and independent
Commission, one that is on the lines of the National Human Rights Commission. However, the
Ministry did not accept these recommendations in the final Bill and thereby diluted the vision of the
Commission which was articulated in the 2001 Bill, a vision that was later even endorsed by the
PSC. Given that the recommendations of the PSC are only persuasive in nature, the Government
accepted only those recommendations that were easy to accept. However, the question as to why the
key recommendations made by the PSC consisting of parliamentarians from both Houses and across
party lines rejected, goes unanswered. Despite the support of the PSC's recommendations, the
government of the day deviated from constituting a strong and effective body for protection and
promotion of child rights. Instead it diluted the provisions of the Bill and enacted a legislation that is
a far cry from the international standards and principles governing human rights institutions.
Parliamentary debate on the CPCR BillA review of the parliamentary debate shows that the
observations and recommendations made on the floor of the House during a debate on the Bill were
also not taken into consideration. Moreover, the general disinterest in the debate, evidenced from
the time spent on the debate and quality of debate, attendance and participation, also raises
questions on the status afforded to children and human rights institutions meant to promote, protect
and monitor their rights. When the Bill came up for discussion in Parliament, questions were asked
as to why the recommendations made by the PSC were not accepted by the Government. The
Minister of State for Human Resources Development informed the House that the
recommendations were considered and only those recommendations which were in the ―interests of
the children‖ were adopted. The fact that the non-acceptance of significant recommendations would
weaken the institution meant for protecting the very same interests of children was not raised or
debated in the House. The Minister also informed the House that the Bill was formulated after
consultations with various stakeholders.
The debates in both the Houses also provide insights into the intent of the legislature and the nature
of suggestions made for amending the problematic clauses of the Bill. Some of the observations and
suggestions made by Members of the Parliament, specifically pertaining to the status and nature of
19
the new body, are given below. These have been extracted from the reported Parliamentary debates,
categorised for the purposes of this Chapter. They reflect the interventions made by
parliamentarians across various parties.
Scope:

It was suggested that the Bill should apply to the States of Jammu and Kashmir also, as is the
case of the Protection of Human Rights Act, 1993.
The fact that the Bill did not seem to expressly include cases of violation of child rights by
the police, the paramilitary and the Armed Forces was highlighted. It was pointed out that
there have been several cases of atrocities committed against children by these forces. In
view of this, it was suggested that a clause should be provided to expressly cover them too.

Appointments and Term of Office

The President should be the appointing authority for the National Commission.
The selection of the Chairperson should be done by a three-member Selection Committee,
headed by the Prime Minister, assisted by the Minister for Human Resource Development,
and the Minister for Social Justice and Empowerment, because this is a very high powered
Commission.
The National Commission should be appointed by the President and the State Commissions
by the Governors, from the panels constituted by the Prime Minister and State Chief
Ministers respectively, on the advice of the expert committees, for a period of five years.
The age limit of the Chairman should be 70 years and of members, 65 years.
The tenure of the members should be five years and not three years, as was proposed in the
Bill.

Composition

At least 50 per cent of the members of the Commission should be women.

To be effective, the Commission should be vested with judicial power. The National
Commission should be chaired by a sitting or retired judge of the Supreme Court, and the
State Commissions, by sitting or retired judges of the respective High Courts.
The Commission should not be an organisation to rehabilitate out-of-work politicians. The
members of the Commission must not be politicians or bureaucrats. They should be people
who have been fighting for the rights of children- people who have genuine conviction and
commitment for the job and have sufficient experience as well as expertise in the field.
There should be two members from the judiciary on the Commission.
The number of years of experience required to become a member is not mentioned in the
Bill. It should be minimum 10-15 years.
The Members should not be a retired bureaucrat so that the Commission should not become
a channel of patronage for retiring or retired bureaucrats.

Procedures

The Rules of procedure of the Commissions should be decided by the Commissions, with
the consent of the respective Governments.
20
Functions and Powers

In addition to the powers mentioned in Clause 14 of the Bill, the rights and powers of
Enquiry Commissions as contained in the Commissions of Inquiries Act, 1952 as amended
by the Amendment Act of 1971, the right to call for reports from the Central Government
and State Governments and the right to give interim relief to a child subjected to violence on
its body or mind and to the child‘s family, wherever necessary, should be included.
In addition to the duties mentioned in Clause 13 of the Bill, the duties and responsibilities to
investigate cases of child labour, child abuses, cruelty to children within and outside their
homes and intervention in cases of violation of child rights with the permission of the court
should be included.
In addition to the steps and procedures included in the Bill, provision to give a copy of the
inquiry report to the aggrieved party, responsibility of the concerned authority to take
appropriate decision in a time-bound manner on reports and directions by the Commission
and responsibility of the concerned individual or authority to implement the directions of
the Commissions should be included.
The Commission should be entrusted with the powers to issue directions to individuals and
agencies for desisting from activities which are injurious to the proper development of the
children.
The Commission should have at its disposal effective administrative machinery, for
examination, analysis, inspection and monitoring the implementation of the schemes relating
to children.
The Commission should have powers to nominate Committees at district and panchayat
levels, with the concurrence of the Government. These Committees could act as the eyes
and ears of the Commission, in the tracking of problems that confront children and
reporting the same to the Commission.
There should be some clarification regarding co-ordination and relationship between
National and State Commissions

State Commissions

The word ‗may‘ should be substituted by ‗shall‘ to make it obligatory for the State
Governments to establish State Commissions.

Children‟s Courts

Courts should be given the powers of a fast track court, to render speedy justice. This should
be specifically mentioned in the Bill.

Funding

The budget provisions as laid down in Clause 12 and 27 of the Bill might affect the
independence of the Commission. It is proposed that the fund allocation should be decided
by Parliament and not by the Ministry of Human Resources Development.

21
 Salaries from Central Government will undermine the independence of the Commission.
Therefore, Parliament must vote on how much resources should be allocated.
For small States, the Central Government should consider funding the governments because
such States may not have the money to set up the Commission.

Relationship with Government

Clause 33 of the Bill that relates to the Commission being guided by the directions of the
Central Government in matters of policy relating to national purposes, leaves very little
elbow room and initiative for the free and independent functioning of the Commission. A
high-powered Commission such as this one cannot be expected to take orders from
bureaucrats.

Clearly, the parliamentarians had endorsed the recommendations of the Parliamentary Standing
Committee and had also gone beyond its recommendations by specifying provisions that would
have enabled the establishment of an independent and powerful body. But none of these very
significant observations and recommendations were accepted by the Government. There was also an
absence of any discussion or justification on non-acceptance of the suggestions made by the
parliamentarians. Although the members acknowledged the Paris Principles and the obligations
under the UNCRC, there was no specific effort on the part of the government to explain how the
Commission would be founded on these international norms.
The 165th report of the PSC was tabled in the Lok Sabha on 18 August 2005. As the Bill was first
introduced in the Lok Sabha, it was first out for debate and voting in the Lower House. The
discussion on the Bill took place late in the evening on 20 December, almost at the end of the winter
session, when the House was nearly empty. This was also observed by the various Members of the
Parliament, who questioned the bad timing of proposing a Bill that relates to children. The debate in
the Lok Sabha took over three hours spread across two days and the Members asked why the
Government had not proposed such a Bill earlier. There was also a suggestion to make an ad hoc
Committee to look into the suggestions made to the Bill in the House. However, the Government
did not accept the recommendation of forming such an ad hoc Committee.
The Minister for Human Resources Development clarified that the government had accepted nine
recommendations made by the Department related Parliamentary Standing Committee. She also
requested the Members to take back suggested amendments and pass the Bill. Regarding
enhancement of quota for women in the Commission, the amendments were not pressed because
the Minister assured that the women will be given preference. With regards to the amendment to
Section 17 to make it mandatory for State Governments to establish the State Commissions, one of
the Members was very particular, but the Minister clarified that this was not possible in a federal
structure. The Parliamentary Affairs Minister committed that the government would take these
points into consideration while framing rules and will negotiate with the State Governments. The
Bill was then put to vote and adopted by the Lok Sabha on 21 December 2005. The Rajya Sabha
passed the Bill on 22 December 2005.
Although the Parliamentary debates on the Bill raised various points pertinent to the independence
and status of the Commission, none of the Members pressed amendments with regards to those
clauses. The explanation and justification given by the Minister appeared to have satisfied the
Members because the Bill was passed unanimously. The fact that an important matter such as
22
establishing a statutory human rights institution in furtherance of international treaties that have
been ratified was pushed to the last hour of the last day of the session, reflects the level of
importance assigned to it by the government. It also signifies a lost opportunity of building a human
rights institution vested with adequate powers to protect and promote rights of over one-third of the
country‘s population. The implications of letting the Bill pass with some weak, some ambiguous and
some problematic provisions with regards to composition, appointment, selection, removal, powers,
procedures, and abiding by the directions of government are evident at two levels. Firstly the Rules
formulated by Central and State Governments downgrade the status and functioning of the
Commissions because the parent Act failed to adopt even the progressive recommendations made
by the PSC. For example, by rejecting the recommendation of the PSC about the selection of
Chairperson and Members to the NCPCR to be done by a higher/independent body and their
appointment and removal to be done only by the President, the CPCR Act, the NCPCR Rules, 2006
and the two subsequent amendments to the Rules in 2014, failed to create an independent body.
Instead it created a weak body that remains dependent on the ruling government. Rejection of the
PSC recommendation on providing mechanisms for co-ordination between SCPCRs and NCPCR in
the Rules has resulted in duplication and difficulties in addressing specific cases of violations.
Secondly, at the operational level where the Commissions are found to be struggling to deliver on
their mandate and get the State and non-State actors to accept and act upon their
recommendations.
Thus, there was considerable dilution of provisions from what was earlier proposed in the 2001 Bill.
The more significant recommendations from a well-researched PSC report were discarded and the
less significant ones were selectively adopted. The interventions of parliamentarians across party
lines were not incorporated and there is evidence of negotiation, pragmatism and tokenism in the
debates, with members not pressing amendment motions, and being satisfied with the assurances
given by the Minister. The political process of adopting the Bill which acknowledged yet negotiated
with other voices that suggested establishment of a stronger and a powerful body requires
questioning, given that the political factors continue to further weaken the body through inadequate
and apathetic implementation. How such a body can then monitor, protect and promote children's
rights and perform its watchdog functions as envisaged by the Paris Principles needs to be critically
understood and questioned.
1.3. Concluding Remarks
The process of formulating the law on Commissions for Children in India spanned over eight years
and went through two governments - both coalition governments. The statute was meant to give
effect to commitments made under the UNCRC and the efforts to establish the Commission
originated at the domestic level. Although the Commission was originally envisaged to be on the
lines of the National Human Rights Commission, the provisions in the Bill got diluted over these
eight years. The recommendations of the PSC were significant and relevant. However, the
Government did not accept them in totality and in fact left out the recommendations that would
have given more teeth to the Commission and ensured its independence. These omissions were
significant and their implications on the way the Commissions are able to fulfill their mandate are
evident. Hence, it is vital that these omissions and dilutions are addressed through a process of law
reform. This review also clearly indicates how the domestic policy processes of negotiation and
tokenism, take over the determination of which policy ideas should be formulated into a statute.
Despite international factors being a trigger, the recommendations that could have enabled creation
of a body on the lines of the Paris Principles were ignored. The process also reveals that it was not
23
the absence of ideas or poor conceptualisation that lead to the establishment of a weak institution.
On the contrary, despite receiving these proposals and recommendations at the official level within
the course of law making, the government chose not to take them into consideration. This review
showcases the importance given to children's rights in the parliamentary debates and the extent to
which the parliamentarians are willing to press the government into making difficult decisions in
favour of children. It is on this background that actions and inactions of the government, both
Central and State, towards these monitoring bodies should be understood and questioned.

24
 Chapter 2. Assessing Compliance of the Commissions for Protection of Child Rights Act,
2005 with International Standards

Swagata Raha1

International standards pertaining to the establishment, mandate, powers, and functions of national
human rights institutions are fairly developed. They are primarily contained in soft law instruments
such as the Principles relating to the Status of National Institutions for the promotion and
protection of human rights, 1993 (Paris Principles), General Comments by treaty bodies, and
resolutions of the Commission on Human Rights, the Human Rights Council, and the UN General
Assembly. The Commissions for Protection of Child Rights Act, 2005 (CPCR Act), is the principal
domestic legislation governing the establishment, functions, powers, and administration of
Commissions for Protection of Child Rights at the national and State level in India. The National
Commissions for Protection of Child Rights Rules, 2006 (NCPCR Rules), and the respective State
Rules outline additional functions, selection criteria, and administrative aspects.

This Chapter provides a broad overview of the international standards and contrasts them with the
provisions of the CPCR Act as well as the NCPCR Rules and State Rules to assess the extent to
which domestic law complies with international standards. The critical question the Chapter
examines is whether the Indian legislative framework guarantees CPCRs their foundational,
functional, and financial independence as a human rights institution.

2.1. Overview of International Standards relevant to Human Rights Institutions

2.1.1. The Paris Principles

In October 1991, the Center for Human Rights conducted an International Workshop in Paris on
National Institutions for the Promotion and Protection of Human Rights. It was attended by
representatives of governments, NGOs, UN specialized agencies, and national human rights
institutions. The Principles relating to the status of National Institutions for the promotion and
protection of human rights, 1993, commonly referred to as the Paris Principles, were an outcome of
this workshop. Following this, the Vienna Declaration and Programme of Action, adopted by the
World Conference on Human Rights on 25 June 1993, encouraged States to establish and
strengthen national institutions in keeping with the Paris Principles.2 These Principles were later

1 Senior Research Associate (Consultant), Centre for Child and the Law, National Law School of India
University, Bangalore (CCL-NLSIU). The author has relied on the research done under the project on Justice
to Children through Independent Human Rights Institutions at CCL-NLSIU and in partnership with the
UNICEF India Country Office between 2010-‗12. Insights have also been drawn from a report that she has
co-authored titled A review of the working of the Karnataka State Human Rights Commission and the Karnataka State
Commission for Women, Daksh & Accountability Initiative, April 2011, available at
http://www.accountabilityindia.in/sites/default/files/daksh_kshrc_kscw_apr_2011.pdf This Chapter has
benefited immensely from feedback from Dr. Archana Mehendale and Arlene Manoharan.
2 Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in

Vienna on 25 June 1993, para 36, at http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx

25
endorsed by the Commission on Human Rights and the UN General Assembly.3 On 10 February
2016, the UN General Assembly reaffirmed the important role played by ―effective, independent,
and pluralistic‖ national institutions, established in accordance with the Paris Principles for the
promotion and protection of human rights, laid emphasis on ensuring their financial and
administrative independence, and encouraged States to strengthen national institutions so as to
enable them to protect and promote human rights.4
The Paris Principles are a set of internationally accepted minimum standards, that States should aim
to comply with while establishing a national human rights institution. 5 The Principles are universally
accepted as ―the test of an institution‘s legitimacy and credibility.‖6 They emphasize that NHRIs
should be functionally and financially independent and should not be controlled by the government.
They should have adequate funding so that they can have their own staff and premises. The
institution should have a broad mandate and its composition should reflect the various entities
involved in the protection and promotion of human rights. The institutions should also be vested
with adequate powers to inquire into complaints on their own, visit prisons and other custodial
institutions, and have quasi-judicial powers to summon witnesses, compel them to testify or produce
documents, etc. The Principles recommend that the institutions should be able to resolve complaints
through either conciliation or binding decisions.7

The Paris Principles also list the responsibilities of a national human rights institution, which
includes review of laws to ensure conformity to human rights, recommendation of new laws or
amendments, reports on violation of human rights, promotion of harmony between national
legislation and international human rights law, promotion of ratification of international conventions
and their implementation, and creating awareness on human rights through information and
education.

The Sub-Committee on Accreditation (SCA) of the International Coordinating Committee of

National Human Rights Institutions for the Protection and Promotion of Human Rights (ICC)
responsible for examining compliance with the Paris Principles has developed General Observations
that elaborate on the ―essential requirements of the Paris Principles and practices that directly
promote Paris Principles compliance.‖8 These General Observations serve as an interpretation guide
and will be relied upon to explain the standards in the subsequent sections.

3 Principles relating to the Status of National Institutions (The Paris Principles) Adopted by General
Assembly resolution 48/134 of 20 December 1993, at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx
4 Resolution adopted by the General Assembly on 17 December 2015 [on the report of the Third Committee

(A/70/489/Add.2)] 70/163. National institutions for the promotion and protection of human rights, 10
February 2016, paras 2, 8, and 20, https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N15/442/29/PDF/N1544229.pdf?OpenElement
5 International Coordinating Committee Of National Institutions For The Promotion And Protection Of

Human Rights (ICC), ‗General Observations of the Sub-Committee on Accreditation,‘ (May 2013), para 1.
6 OHCHR, Paris Principles: 20 years guiding the work of National Human Rights Institutions, 30 May 2013,

http://www.ohchr.org/EN/NewsEvents/Pages/ParisPrinciples20yearsguidingtheworkofNHRI.aspx
7 Paris Principles, Additional principles concerning the status of commissions with quasi-jurisdictional

competence, clause (a).

8 Supra n.5.

26
2.1.2. Committee on the Rights of the Child, General Comment No.2 (2002) The role of
independent national human rights institutions in the promotion and protection of the
rights of the child

Through its General Comment No.2, the Committee on the Rights of the Child (CRC), the treaty
body established under Article 43 of the UN Convention on the Rights of the Child (UNCRC),
encouraged States Parties to establish a national human rights institution to address child rights,
endorsed the Paris Principles, and also enumerated the mandate, powers, establishment process, and
essential elements and functions of such an institution.9 It acknowledged that both adults and
children require independent human rights institutions to protect their human rights and
emphasized the need for such an institution to address child rights, specifically owing to children‘s
vulnerability to human rights violations, the disregard of their opinions, their lack of a political voice,
and the difficulties they face in accessing the judicial system or organisations that provide
assistance.10

The CRC outlined the functions of NHRIs for children, which includes:
 monitoring the State‘s compliance with the UNCRC,
 investigating violation of child rights based on a complaint, or on their own initiative,
 reviewing laws related to the protection of children‘s rights,
 promoting harmonization of domestic laws and practices with the UNCRC,
 ensuring that children‘s rights are considered while developing and evaluating national
economic and development plans,
 ensuring that children are heard in matters concerning their human rights,
 sensitizing the government and public about the UNCRC,
 approaching the courts for remedy or providing legal assistance to children,
 engaging in mediation and conciliatory processes, and
 reporting independently to the CRC.11

2.1.3. Other International Guidelines and Best Practices

In 2001, the Commonwealth Secretariat endorsed the Paris Principles and elaborated upon best
practices for the establishment and operation of national human rights institutions.12 The
International Council of Human Rights Policy (ICHRP), a non-profit foundation based in Geneva
and Amnesty International have each developed benchmarks for assessing the NHRIs and proposed
recommendations to ensure a strong and effective institution.13

9 Committee on the Rights of the Child, General Comment No. 2, The role of independent national human
rights institutions in the promotion and protection of the rights of the child, U.N. Doc. CRC/GC/2002/2
(2002) (herinafter CRC, GC No.2).
10 Ibid para 5.
11 Ibid, paras 19-20.
12 Commonwealth Secretariat, National Human Rights Institutions: Best Practice (2001).
13 International Council on Human Rights Policy, Assessing the Effectiveness of National Human Rights Institutions

(2005), available at http://www.ohchr.org/Documents/Publications/NHRIen.pdf (ICHRP Report)

27
The Paris Principles and the SCA‘s General Observations, along with the CRC‘s General Comment
No.2, the ICHRP‘s Assessing the Effectiveness of National Human Rights Institutions, 2005,
Amnesty International‘s Recommendations,14 and the Commonwealth Secretariat‘s Best Practice for
NHRIs are the basis of the benchmarks for the evaluation of the Commissions for Protection of
Child Rights Act, 2005 with the international standards.

2.2. Assessing Compliance of the CPCR Act with International Standards

In this section, the CPCR Act will be assessed, based on the international standards and best
practices. The extent to which the Act grants independence to the Commissions will be examined.
The statutory provisions will also be tested against other standards such as mandate, powers,
functions, accessibility, and accountability of the Commissions.

2.2.1. Independence

To discharge its mandate effectively, a human rights institution must be independent of

governmental and political control or interference. It must distance itself from the government
whose policies and actions it is expected to scrutinize and inquire into. Further, it must strive to
ensure that it is not perceived as a government department or a NGO. The former is likely to
compromise its credibility and the latter might earn it the label of being ―pro-NGO.‖15 Emphasizing
on independence, the CRC stated that its ―principal concern is that the institution, whatever its
form, should be able, independently and effectively, to monitor, promote and protect children‘s
rights.‖16

While neither the Paris Principles nor the General Comment is binding on States, they are
internationally recognized as core minimum international standards for NHRIs. A key principle
enshrined in the above-mentioned instruments is the independence of human rights institutions.
The term ―independence‖ should be understood in its fullest sense as signifying foundational,
functional, operational, and financial independence. Foundational independence is based on the
manner the institution has been brought into existence, its composition, and the appointment
process. The selection process should be fair, transparent, and bereft of political influences.
Operational autonomy stems from the NHRI‘s authority to independently appoint staff and take
administrative decisions. Financial independence is very critical as dependence on the government
for funds can stymie the effectiveness of an oversight authority.

1. Foundational Independence

(a) Establishment

14 Amnesty International, ‗National Human Rights Institutions – Amnesty International‘s recommendations

for effective protection and promotion of human rights‘ (October 2001) available at
https://www.amnesty.org/download/Documents/128000/ior400072001en.pdf
15 Anne Smith, ―The Unique Position of National Human Rights Institutions: A Mixed Blessing?, HUMAN

RIGHTS QUARTERLY, 28 (2006), 904-946, at 909.

16 CRC GC No.2, para 7.

28
According to the Paris Principles, the mandate, composition and functions of the NHRI should be
specified in a ―constitutional or legislative text‖.17 The SCA regards this ―to be of central importance
in guaranteeing both the permanence and independence‖ of an NHRI and cautions about the threat
to stability caused by establishment through an executive decree.18 The Best Practice
(Commonwealth Secretariat, 2001), ranks in order of preference, the different modes of
establishment. Establishment of an NRI under a Constitution is the most preferred; through
legislation is ―less preferable, but acceptable‖; and under a Presidential decree is ―undesirable‖.19
General Comment No.2 also states that NHRIs should be ―constitutionally entrenched,‖ and if that
is not possible, they should ―at least be legislatively mandated‖.20

The manner an NHRI is constituted is indicative of the independence and stability the body will
have. Establishment under the Constitution or under domestic legislation, guarantees greater
legitimacy and safeguards the powers and independence of the institution. The structure or powers
of the institution cannot be easily altered, as it will require an amendment to the Constitution or the
legislation, which is usually a lengthy process that requires a significant majority. In contrast,
establishment under an executive decree does not lend stability to the body, as its existence depends
on the will of the executive and it can be easily disbanded or its powers diluted.21 Establishment
through an executive decree also jeopardizes the independence of the institution, as it remains
within the control of the executive and makes it difficult for it to fairly monitor the implementation
of human rights by the government.

In India, the legislative route has been adopted for the establishment of Commissions for Protection
of Child Rights. The CPCR Act provides for the establishment of the National Commission for
Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights
(SCPCR).22 The responsibility for establishments of Commissions is that of the Central Government
and each State Government has been given the discretion to establish an SCPCR. This discretion
may have been provided to the States in view of the federal structure of the Indian State.23

The SCPCRs have been entrusted with monitoring functions under Section 33 of the Right of
Children to Free and Compulsory Education Act, 2009 (RTE Act), Section 44 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act), and Section 109 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (JJ Act). This makes their establishment imperative, so
that complaints pertaining to violations can be inquired into and the overall implementation of these
Acts can be monitored at the State level. Additionally, under the RTE Act, the SCPCRs are required

17 Paris Principles, 1993, Section A.2.

18 Supra n.5, p.6.
19 Commonwealth Secretariat, National Human Rights Institutions: Best Practice (2001) p.10.
20 CRC GC No.2, para 8.
21 Supra n.5, p.6.
22 CPCR Act, 2005, Sections 3 and 17.
23 See Chapter 1.

29
to hear appeals against the orders of the local authority24 on matters relating to a right of a child
under the RTE Act.25

The establishment of SCPCRs was, however, delayed in several States. Several High Courts and the
Supreme Court have played an important role in ensuring the establishment of SCPCRs. For
instance, the direction of the Punjab and Haryana High Court in Court on its own motion v. State of
Punjab,26 led to the establishment of SCPCRs in Punjab, Haryana, and the Union Territory of
Chandigarh. The Supreme Court, in the case of Re: Exploitation of Children in Orphanages in the State of
Tamil Nadu v. Union of India27 directed the Chief Secretaries of all States to report about the
establishment of SCPCRs and the appointment of members and as to whether the Commissions are
functional. Consistent follow-up by the Supreme Court eventually prompted several State
Governments to establish them. In Sampurna Behura v. Union of India the Supreme Court observed:

We have been given to understand that both the Government of India and the State
Governments have not been giving these bodies the freedom to decide on broad policy
matters and indeed in some instances, particularly relating to the SCPCR, vacancies have not
been filled up for several months.

As on 31 March 2018, 35 SCPCRs have been constituted on paper.28

(b) Composition

An NHRI should comprise experts drawn from various fields so as to reflect a ―pluralist
representation of the social forces involved in protection and promotion of human rights.‖29 The
composition should reflect gender balance and diversity. Smith unpacks pluralism and states that the
composition should ―reflect differences such as religion, language, geographical and socioeconomic
factors, ethnicity, gender, sexual orientation, and disability.‖30 The composition influences the
credibility and independence of a NHRI.31

The Paris Principles state that the composition should include representatives of NGOs working on
human rights, trade unions, lawyers, doctors, journalists, eminent scientists, universities, and
Parliament.32 As per the Principles, if the institution comprises representatives of government

24 RTE Act, 2009, Section 2(h) states ――local authority‖ means a Municipal Corporation or Municipal Council
or Zila Parishad or Nagar Panchayat or Panchayat, by whatever name called, and includes such other
authority or body having administrative control over the school or empowered by or under any law for the
time being in force to function as a local authority in any city, town or village‖
25 RTE Act, 2009, Section 32(3).
26 Civil Writ Petition No.9968 of 2009 (O&M) decided on 09.04.2013 by the High Court of Punjab &

Haryana.
27 Writ Petition (Crl.) No. 102 of 2007 order dated 16.12.2013.
28 State Commission for Protection of Child Rights (SCPCRs), available at

http://ncpcr.gov.in/index1.php?lang=1&level=0&linkid=100&lid=1309.
29 Paris Principles, National institutions for the promotion and protection of human rights, A/RES/48/134,

85th Plenary Meeting, 20 December 1993, Section A. 4.

30 Supra n.15, at 928.
31 SCA Observations, p.21.
32 Paris Principles, Section B.1.

30
departments, they should act only in an advisory capacity.33 The ICHRP suggests that civil servants
or persons belonging to political parties should be excluded from the membership, so as to assure
the independence of the institution.34 The qualifications for membership should be clearly outlined
in the law and the selection should be based on merits.35

Sections 3 and 17 of the CPCR Act state that the NCPCR and SCPCRs will comprise a Chairperson
and six Members. The Act does not list any specific qualifications for the Chairperson, but states
that the position should be held by ―a person of eminence‖ who should have done ―outstanding
work for promoting the welfare of children.‖ As per the NCPCR Rules 2006, to be eligible for
appointment as Chairperson and Members of the NCPCR, the person should not have any past
record of violation of human rights or child rights.36

Sections 3(2)(b) and 17(2)(b) of the Act specify that Members of the NCPCR and SCPCR,
respectively, should be drawn from ―amongst persons of eminence, ability, integrity, standing and
experience in‖ the following six fields:
(i) education;
(ii) child health, care, welfare or child development,
(iii) juvenile justice or care of neglected or marginalized children or children with
disabilities;
(iv) elimination of child labour e or children in distress;
(v) child psychology or sociology; and
(vi) laws relating to children.

The composition of the CPCRs as envisaged in the law reflects plurality to a certain extent, by
mandating that of the six members of the NCPCR and SCPCR, at least two should be women. The
provision also enables experts from different disciplines to be represented in the CPCR.

Prompted by the Supreme Court‘s directions in Yogesh Dube v. Association for Development,37 the
NCPCR Rules were amended on 24 November 2014 and norms for selections were stipulated. Rule
3A was introduced, which stated that a person would not be selected as Chairperson or Member,
unless the person is an Indian national having a post-graduate degree from a recognized university.38
The person should not have been convicted or sentenced to imprisonment for any offence, or
removed or dismissed from government service, Central or State or government-owned or
controlled body or corporation.39 Subsequently, on 6 May 2014, Rule 3A was further amended to
replace ―post graduate‖ with ―graduate‖ and to positively couch the eligibility criteria by stating that
a person would be eligible for selection, only if the person met the four conditions stipulated in Rule
3A.40

33 Paris Principles, Section B.1(e).

34 ICHRP Report, p.14.
35 ICHRP Report, pp. 14-15.
36 NCPCR Rules, 2006, Rule 3.
37 Civil Appeal No. 10960 of 2013.
38 National Commission for Protection of Child Rights (Amendment) Rules, 2014, Rule 3.
39 Ibid.
40 Ibid.

31
The CPCR Act and most State Rules do not bar the appointment of members of political parties or
bureaucrats as Chairperson or Members. The exceptions are Karnataka, Kerala, Tamil Nadu and
Puducherry. According to Rule 3(1)(b) of the Karnataka SCPCR Rules, 2010, an office bearer or
member of any political party will be ineligible for appointment to the Commission. The Kerala
Rules state that the Chairperson or Member cannot be a Member of Parliament or State Legislature
and cannot hold any office of trust or profit and must suspend the business, practice or profession
the person may be involved in before assuming office.41 According to Rule 4(2) of the Puducherry
Rules and Rule 3(2) of the Tamil Nadu Rules, the Chairperson or Member should ―not hold any
post in any Governmental, Quasi-Governmental, Public Sector or Non-Governmental Organisation
or hold any other position whether for profit or not.‖

As on 02 February 2018,42 the following SCPCRs were functioning without all six members and/or
Chairperson: Andaman and Nicobar Islands, Assam, Arunachal Pradesh, Chandigarh, Chhattisgarh,
Jharkhand, Madhya Pradesh, Mizoram (Commissioner & Secretary (SW) is in-charge), Nagaland, and
Uttar Pradesh. In Tamil Nadu, the Chairperson is a retired IAS Officer and the SCPCRs in the
Union Territories of Daman & Diu and Lakshadweep consist entirely of bureaucrats.43 The SCPCR
in Dadra and Nagar Haveli is not functional, as the terms of the Chairperson and Members have
expired and no appointments have been made. In Telangana, although appointments were made, a
single judge bench of the High Court of Andhra Pradesh and Telangana set aside the appointment
order44 and this order has now been appealed by the government before a division Bench.45

As on 31 March 2018, the NCPCR has only three members and position of Members has been lying
vacant since 2014. In Radhakanta Tripathy v. Union of India,46the Delhi High Court took serious note
of the delay in appointments:

…several orders have been passed since 2016 when the first vacancy of member arose in the
NCPCR. The failure to filling up the vacancies till today tantamounts to violation of the

41 Kerala State Commission for Protection of Child Rights Rules, 2012, Rule 3(5).
42 Information based on the NCPCR‘s website
http://ncpcr.gov.in/index1.php?lang=1&level=0&linkid=100&lid=1309
43 See http://www.ncpcr.gov.in/index1.php?lang=1&level=2&&sublinkid=1092&lid=1317 for Daman &

Diu and http://www.ncpcr.gov.in/index1.php?lang=1&level=2&&sublinkid=1126&lid=1326 for

Lakshadweep. Secretary (Social Welfare) is the Chairperson of Daman & Diu SCPCR and Members include
Director (Education), Director (Health), Superintendent of Police (Daman), Superintendent of Police (Diu),
Chief Executive Officer, District Panchayat, Daman, Chief Executive Officer, District Panchayat, Diu, Two
Social Workers to be nominated by Chairperson and the Deputy Secretary (Social Welfare), Daman & Diu is
the Member Secretary. In Lakshadweep, Secretary, WCD is the Chairperson, District & Sessions Judge is Co-
Chairman, and Members are Dy. Superintendent of Police, Director Education, Director, MHS, Director,
Panchayat, Chairperson, LSSWB, Chairperson, VDP, Director Info. Pub. & Relation, two Social Workers and
Director (WCD) is the Member Secretary.
44 M.N.V. Srinivasa Rao v. State of Telangana, W.P. Nos. 30406, 29030, 29491 and 32764 of 2017 decided by the

High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh on
13.10.17.
45 Telangana State Commission for Protection of Child Rights,

http://www.ncpcr.gov.in/index1.php?lang=1&level=2&&sublinkid=1164&lid=1339
46 W.P.(C) 8785/2016 decided by the Delhi High Court on 19.02.2018 available at

http://lobis.nic.in/ddir/dhc/GMI/judgement/24-02-2018/GMI19022018CW87852016.pdf
32
 statutory provisions. Looked at from any angle, the matter of filling up of the vacancies in
the NCPCR brooks no delay at all.

The Delhi High Court directed the Central Government to fill the vacancies in the NCPCR and
complete the selection process within 90 days.

(c) Appointment process

The appointment process should ensure that qualified and deserving persons are appointed to the
institution. Political appointments should be eschewed completely. The composition of an NHRI
should inspire confidence and credibility. In order that it is not discerned as a mere extension of a
government department, the appointees must be selected in a transparent manner. According to the
SCA, the Paris Principles require the selection process to be ―clear, transparent, merit based and
participatory‖.47Vacancies should be advertised so that the pool of applicants is maximized and
plurality is ensured.48 The Commonwealth Secretariat,49 the ICHRP,50 and Amnesty International,51
emphatically state that the executive should not solely decide on the composition of the
Commission. Further, the tenure, grounds of removal, and other terms of appointment should also
be clearly stated, so that office-bearers are not dismissed at the whim of the government. In order to
lend credence to the appointment process, the Commonwealth Secretariat recommends that the
legislature and civil society should also be involved and the selection process should be
consultative.52 The ICHRP adds that a judicial service commission which appoints judges could also
be involved in the appointment process, to ensure that the NHRI is fairly independent.53 The SCA
states that the selection process should be ―under the control of an independent and credible body
and involve open and fair consultation with NGOs and civil society.‖54

In a departure from the international standards, under the CPCR Act, the Central Government and
State Governments have the exclusive authority to appoint the Chairperson and Members of the
NCPCR and SCPCRs, under Sections 4 and 18, respectively. The Chairpersons are appointed on the
basis of recommendations by a three member Selection Committee formed by the government. 55 At
the national level, the Selection Committee should be chaired by the Minister-in-charge of the
Ministry of Women and Child Development (MWCD), and at the State level, it should be headed by
the Minister-in-charge of the Department dealing with children. The Act is silent on who the other
two members of the Selection Committee should be.

Following the Supreme Court‘s order in Yogesh Dube v. Association for Development,56the NCPCR Rules
was amended on 24 March 2014 and Rule 6B was introduced, which specified that the three
members of the Selection Committee would be the Minister-in-charge of the Ministry who would be

47 Supra n.5 at p.22.

48 Supra n.5 at p.23.
49 Supra n.12 at p.15.
50 ICHRP Report, p.14.
51 Supra n.14 at p.5.
52 Supra n.12 at p.15.
53 ICHRP Report, p.14.
54 Supra n.5 at p.22.
55 CPCR Act, provisos to Section 4 and 18.
56 Civil Appeal No. 10960 of 2013.

33
the Chairperson of the Selection Committee, the Secretary to the Ministry and ―one independent
expert of eminence in the field of child rights,‖ nominated by the Minister-in-charge.57

The requirement of including an independent expert is absent in all State Rules. The Members of the
Selection Committee in Delhi, for instance, include Secretaries of the Department of Women and
Child Development (DWCD), Labour Department, Health Department, and the Director of the
DWCD, who will serve as the Member-Secretary.58 In Jharkhand, the Secretaries of the Department
of Social Welfare and Health and Family Welfare are part of the Selection Committee.59 In West
Bengal, the Chief Secretary of the State Government and the Principal Secretary of the DWCD are
members of the Selection Committee.60 Similar compositions appear in the Puducherry and
Rajasthan Rules. This is in complete breach of international standards that unequivocally state that
Members should not be selected solely by the executive. The manner of appointments has also not
been specified. As a result, most appointments are based on nominations and not applications.

Telengana is the only State whose Rules provide for a fairly independent Selection Committee. It
specifies, in Rule 4(1), that the Committee should consist of the Minister-in-charge of Child
Development and nominees of the Chief Justice of the High Court and Speaker of the State
Legislature. However, the appointments to the Telangana SCPCR were successfully challenged in
M.N.V. Srinivasa Rao v. State of Telangana,61 on the grounds that the selection process was not
complied with. The Chairperson of the Selection Committee was not present and the selections were
carried out by a two-member Committee consisting of the Member Secretary of the Telangana State
Legal Services Authority as a Member and the Principal Secretary to the Government, DWCD and
Senior Citizens as a Member Convenor. Further, there was no material on record to show that
requests had been sent to the Chief Justice of the High Court and the Speaker of the State
Legislature asking them to nominate a member of the Selection Committee. A single judge of the
High Court observed:

The qualifications mentioned in Section 17 of the Act cannot be taken in a causal manner
and in the process of selection of an individual, either to the post of Chairperson or to the
post of Member, the Selection Committee has to ensure the best persons committed in
promoting the welfare of the children. It is also needless to mention, the functions that are
to be carried out by the Commission, either Central Commission or State Commission,
which are specified in Sections 13 to 16 in Chapter III read with Rule 19 of the Rules, are
onerous and require only persons of real calibre and commitment. In those circumstances,
great responsibility rests upon the Selection Committee to ensure the best of the persons are
appointed as a Chairperson and the Members of the Commission.

The High Court held that Section 18, CPCR Act envisages selection by a three-member Committee
and is a mandatory provision that cannot be violated even on account of exigencies. Further, the

57 NCPCR (Amendment) Rules, 2014, Rule 4.

58 Delhi CPCR Rules, 2008, Rule 3.
59 Jharkhand SCPCR Rules, 2010, Rule 4.
60 West Bengal SCPCR Rules, 2012, Rule 7.
61 W.P. Nos. 30406, 29030, 29491 and 32764 of 2017 decided by the High Court of Judicature at Hyderabad

for the State of Telangana and the State of Andhra Pradesh on 13.10.17.
34
records did not indicate any objective reasons for selecting one candidate over others. The High
Court held that the entire selection process was vitiated.

Since 2010, the opaque and political nature of the appointment process adopted for the CPCRs has
come under judicial scrutiny. In Association for Development v. Union of India62 (2010), while deciding on
the validity of appointments of two members of the NCPCR, the Delhi High Court recommended
that a broad-based Selection Committee consisting of independent experts in the field, the
Chairperson of the Union Public Service Commission, and/or the Leader of the Opposition be
constituted. The Solicitor General at the time assured the High Court that its recommendations
would be borne in mind and that ―at least one Member of the Selection Committee shall be an
independent expert of eminence in the field of child rights or welfare.‖ Further, upon completion of
the selection process and at least 30 days before the notification, the details of the members of the
Selection Committee and the selection candidates would be put up on the website of the Ministry.

On 7 November 2013, the Delhi High Court in Association for Development v. Union of India63 again
considered a challenge to the appointment of two members of the NCPCR. Application filed under
the Right to Information Act, 2005, confirmed that no advertisements had been issued by the
Ministry to fill the posts in the Commission.64 The petitioners claimed that the Selection Committee
―took no steps to verify the credentials‖ or cited reasons for preferring these members over other
candidates. What was also on record in this case was that the source of recommendations for all
candidates was political.65 The court quashed the appointment of one member and expressed its
concern that the selection process ―is not based on any objective guidelines.‖ It urged the
government to prescribe guidelines for eligibility and ―to introduce some objective evaluation
method,‖

The above decision was appealed before the Supreme Court and in its order dated 25 February
2014,66 the apex court observed that the government had the requisite powers to frame guidelines
for the selection process and that they saw ―no reason why norms and guidelines for selection of
candidates should not be framed and published so that the entire process of selection is fair,
reasonable, objective and transparent.‖ The Supreme Court was also critical of the suggestion that
advertising vacancies was not necessary as the Ministry had been receiving application without
publicizing it. It observed that

[r]eceiving applications from candidates recommended by people who have no role to play
in the process of selection may in fact have the effect of rendering the selection process
suspect for any such recommendations are most likely to influence the selection process in a

62 2010 (115) DRJ 277.

63 Association for Development v. Union of India, W.P. (C) 1055/2011, decided by the Delhi High Court on
7.11.2013,
64 Association for Development v. Union of India, W.P. (C) 1055/2011, decided by the Delhi High Court on

7.11.2013, para 4.
65 Of the 130 applications, 35 had been recommended by Union Ministers, 18 were political party

functionaries of which 17 were Congress leaders, 33 had been recommended by MPs and MLAs, 7 by Chief
Ministers and State Cabinet Ministers, 10 by NCPCR, and 3 by the PMO – Association for Development v. Union
of India, W.P. (C) 1055/2011, decided by the Delhi High Court on 7.11.2013, Para 27.
66 Yogesh Dube v. Association for Development, Civil Appeal No. 10960 of 2013

35
 subtle manner to the prejudice of other candidates who are not resourceful enough to secure
such recommendations no matter they are otherwise equally if not more meritorious.

It cautioned the Central Government against hurrying the selection process without framing rules
and guidelines. Pursuant to this, on 24 March 2014, the MWCD amended the NCPCR Rules to
specify the norms for selection of Chairperson and Members of the NCPCR. Vacancies should be
advertised in at least four national dailies and publicized on the website of the Ministry and at least
four weeks must be allowed for receiving applications.67 The amended rules state that the
applications will be ―scrutinized‖ and ―after due consideration‖ by the Selection Committee, the
suitability of the candidates will be decided. The Schedule to the Rules prescribes the Application
Form, which requires candidates to certify that they are not an MP, MLA, or member of any
political party and that if they are selected they will not hold any office of profit, or pursue any
profession, or carry on any business. The MWCD also reduced the status of the Chairperson from
Cabinet Secretary to Secretary and that of the Members from Secretary to Additional Secretary.
Though the powers of the Commission have not been diluted, this reduction of status has
effectively weakened this body, as it will naturally be unable to command the requisite authority to
deal with the executive at the highest level.

In Runumi Gogoi v. State of Assam,68 the Gauhati High Court took note of the numerous
communications from the Chief Minister instructing the Department to appoint a particular person,
who was working in a government college, as Chairperson and even expressing displeasure at the
delay in notifying the appointment. The Selection Commission was of the view that since the State
Rules had not been finalized, salaries were not being paid to any members and thus appointment of
a person from a regular service would result in payment of salary to that person and not to others –
an unjust situation. The Selection Committee brought this aspect of the situation to the Chief
Minister‘s notice. The judgment indicates what transpired thereafter:

A perusal of the note-sheet indicates that on 15.06.2013, the second respondent put up a
note before the Departmental Minister to bring to the notice of the Chief Minister the
decision of the Selection Committee. The Departmental Minister put up the file before the
Chief Minister on 28.06.2013. As per his note dated 15.07.2013, the Chief Minister
directed that pending all formalities, respondent No. 6 be appointed as Chairperson
of the State Commission. The Departmental Minister was asked to inform the Chief
Minister about the action taken since there had been delay. Following the same, the
impugned notification dated 06.08.2013 was issued. (emphasis added)

The Gauhati High Court held that the Selection Committee had neither satisfied itself about the
suitability of Respondent No.6, nor had it recommended her appointment – ―it was a decision of the
Chief Minister which was imposed on the Selection Committee.‖ The selection procedure under the
Act was thus not complied with and the High Court therefore concluded that the appointment was
arbitrary and not a mere procedural violation, but an ―infirmity which strikes at the very root of the
decision making process itself.‖

2. Operational Independence

67 NCPCR Rules, Rule 6A introduced by an amendment in 2014.

68 W.P. (C) No. 4555 of 2013 decided by the Gauhati High Court on 11.02.2014.
36
According to international standards, institutions must have the operational independence to
advertise for staff and appoint them. They must not depend on the government for human
resources and infrastructure.69 It is not desirable to have staff members deputed from government
departments, as they may not have the requisite knowledge and expertise to deal with human rights
and child rights issues and may also bring certain bureaucratic baggage with them, which might
hinder the accessibility of the Commission. While recognizing the threat to independence posed by
the hiring or accepting of staff from government departments, the SCA acknowledged the skills that
public servants can bring to certain positions within an NHRI, but cautioned that ―such positions
should always be open to all, clear, transparent, merit-based, and at the sole discretion of the
National Institution.‖70

The Commission must also have the authority to independently investigate into complaints. 71 In
2005, the erstwhile Commission on Human Rights adopted Resolution 2005/75 on National
institutions for the promotion and protection of human rights and recognised that some States had
vested human rights institutions with powers of investigation and encouraged others States to
consider emulating this.72

Under the CPCR Act, the Commissions depend on the government to provide them with staff and
infrastructure. The Commissions can however constitute a panel of consultants to assist them on
inquiries, research, and analysis. Interestingly, the NCPCR evinced a heavy preference for retired
bureaucrats when it advertised administrative and technical positions on contract basis, in January
2016.73

The Commissions have not been vested with the express power of framing their own regulations.
The NCPCR Rules and all State Rules require the Commissions to ―undertake formal investigations
where concern has been expressed either by children themselves or by concerned person on their
behalf‖. The usage of the term ―investigations‖ which entails collection of evidence, is erroneous, as
the CPCR Act has not vested the Commission with any powers of investigation. The Commission
will have to seek assistance of the police for investigation. In the absence of independent
investigation powers, the Commissions have no other option but to rely on reports submitted by
State agencies on violations of child rights. This potentially compromises the objectivity of the
inquiry process especially in cases entailing violations by the police or governmental authorities.

According to Section 33 of the CPCR Act, the NCPCR must be guided by directions issued by the
Central Government on questions of policy relating to national purposes. Further, if any dispute
arises between the Central Government and the Commission as to whether a question is or is not a
question of policy relating to national purposes, the decision of the Central Government on the
matter will be final. During the debate in Parliament on the CPCR Bill, one Member of Parliament

69 Paris Principles, 1993, Section B.2 Composition and guarantees of independence and pluralism.
70 SCA p.39.
71 Supra n.12 at p.20; Supra n.5 at p.42.
72 Resolution 2005/74. National institutions for the promotion and protection of human rights, Commission

on Human Rights, at http://www.nhri.net/pdf/Final-CHR-RES-2005-74-E.pdf

73 NCPCR, F.No.A-11017/67/2010-12 (Admn)/ 37920, Publication of Advertisement, 1 January 2016.

http://ncpcr.gov.in/show_img.php?fid=1615
37
expressed concern that ―Clause 33 of the Bill leaves very little elbow room and initiative for the free
and independent functioning of the Commission. A high-powered Commission such as this one
cannot be expected to take orders from bureaucrats.‖74Yet, this was overlooked and the clause was
retained. Section 33 of the CPCR Act is incongruous with the purpose of a human rights institution
and undermines the autonomy of the CPCRs. Moreover, such a clause does not appear in any other
legislation pertaining to a human rights institution in India.

3. Functional Independence

As per international standards, human rights institutions must have a broad mandate,75 and have the
jurisdiction to investigate into human rights violation by all State actors and private actors. 76 A
limited mandate or jurisdiction will restrict its functioning and dilute the purpose of having a human
rights watchdog. For this purpose, the Commonwealth Secretariat advises that human rights should
be broadly defined, to include domestic law as well as international human rights conventions,
irrespective of whether they have been acceded to by the State or not.77

The term ―child rights‖ has been defined as including rights covered under the UN Convention on
the Rights of the Child, 1989. The CPCRs have been vested with a broad mandate and can play a
critical role in shaping policies, reforming laws, improving the implementation of safeguards, and
persuading the government and authorities to adopt a child rights sensitive approach while
discharging their duties. Pursuant to its mandate under the CPCR Act and the RTE Act, POCSO
Act, and JJ Act, the CPCRs can inquire into violations of child rights by public servants as well as
private individuals or institutions. However, recommendations can be directed only at government
and public authorities.

4. Financial Independence

Without adequate financial independence, the institutions will not be able to realize their mandate.
According to the Paris Principles, NHRIs should have adequate funding of its own to be able to
appoint staff and rent or own premises.78 The Paris Principles state that the NHRI should have
adequate funding so that it can ―have its own staff and premises, in order to be independent of the
Government and not be subject to financial control which might affect its independence.‖79 The
need to secure financial independence has been emphasized by the Commonwealth Secretariat and
the ICHRP as well.80

Institutions may be unwilling to challenge the government for fear of finances being cut off.
Financial reporting must be to an authority other than the executive, like the legislature. As slashing
or restriction on budgets of NHRIs is common, especially when they are too critical of the
74 Lok Sabha Debates, GOVERNMENT BILLS: Motion For Consideration Of The Commission For
Protection of Child Rights Bill, 2005 on 20 December, 2005 at http://indiankanoon.org/doc/1795311/
75 Paris Principles, para 1.
76 Supra n.12 at pp.19-20; CRC, GC 2, para 9.
77 Supra n.12 at p.18.
78 Paris Principles, Section B.2 Composition and guarantees of independence and pluralism.
79 Paris Principles, National institutions for the promotion and protection of human rights, A/RES/48/134,

85th Plenary Meeting, 20 December 1993, para 2.2.

80 Supra n.12 at pp.11,15; ICHRP Report, p.13.

38
Government, Amnesty International and the ICHRP recommend that NHRIs should have powers
to seek funding from alternative sources such as private or international agencies, other than the
Government. Amnesty International warns that NHRIs should develop guidelines to ensure that
the outside funding ―does not compromise its independence and impartiality.‖81 External funding
has its downsides as the institution may run the risk of working only on specific issues based on the
donor‘s priorities. The Commonwealth Secretariat82 and the ICHRP83 also suggest that public funds
should be made available to NHRIs by Parliament and the NHRIs should have the power to
determine the utilisation of the funds.

CPCRs in India have negligible financial autonomy. Sections 27 and 28 of the CPCR Act prescribes
that after an appropriation is made by Parliament or State Legislature, the respective governments
must make the funds available to the Commissions by way of grants. The Commissions have the
autonomy to spend the money as they deem fit for discharging their functions. According to the
NCPCR Rules, 2006 and various State Rules, grants are provided to the Commissions based on
budgets prepared, provided and forwarded to the relevant Government in the formats provided in
the Rules. The CPCRs are required to submit estimated receipts and expenditure, along with revised
budget estimates for the relevant year. However, the financial powers of the CPCRs are not
absolute. They have to obtain the prior approval of the government, before incurring expenditure
on certain specified heads, such as creation of posts, revision of pay scales, procurement of vehicles,
re-appropriation of funds from one head to another, etc.84 Routing of the budget through the
government however allows the executive to exercise control over the release of grants. Further, the
requirement of seeking prior permission before incurring expenditure on certain heads also affects
the financial independence of the Commissions. Interestingly, such a restriction has not been placed
on any other human rights institution in India.

2.3. Functions85

The primary function of NHRIs as per International Guidelines is monitoring human rights
condition in the country and protecting and promoting the human rights. The functions can be
broadly classified as follows:

Reporting
NHRIs must prepare timely reports on human rights situation in the country and draw the attention
of Government to cases of violation of child rights and propose initiatives to be adopted to change
the situation.86

Reviewing and monitoring the implementation of Laws

81 Supra n.14 at p.23.

82 Supra n.12 at p.15.
83 ICHRP Report, p.13.
84 NCPCR Rules, 2006, Rule 24(3).
85 Sonal Makhija & Swagata Raha, ―A Review of the Working of the Karnataka State Human Rights

Commission and the Karnataka State Commission for Women‖, Accountability Initiative & Daksh, April
2011, pp.22-23.
86 Paris Principles, 1993, Principle 1(2)(a).

39
The primary function of an NHRI is to protect and promote the rights of the citizens, especially the
disadvantaged. To effectively perform its role, it must monitor the implementation of human rights
laws in the country. It should be empowered to undertake review of the existing laws, proposed
Bills, and make recommendations to ensure their conformity with human rights.87 In furtherance of
this function, it can also propose new legislations or amendments.

Promoting compliance with international human rights law

NHRIs must ensure that domestic and international laws concerning human rights are duly
implemented and also encourage ratification of and accession to international human rights
instruments. Given its advisory role, NHRIs must promote harmony between domestic law and
international human rights law.

While the Paris Principles state that NHRIs should contribute to the reports the State is required to
submit to the UN treaty bodies and record their opinion with ―due respect for their
independence,‖88 the ICHRP categorically states that NHRI ―should not prepare government
reports to international human rights mechanisms‖ as ―[t]hey are not government departments.‖ 89
The ICHRP‘s position is in alignment with the overall objective of establishing independent human
rights institutions.

Inquiring into Complaints

NHRIs must receive and address complaints concerning violations, take suo motu action, file legal
cases to protect the rights of individuals or to promote changes in law and practice. Amnesty
International recommends that NHRIs must ―also have the legal power to bring cases (such as
judicial review) to challenge the legality of executive action and to obtain judicial orders to remedy
the situation, particularly where the executive has ignored the NHRIs recommendations on the
subject.‖90 According to the Committee on the Rights of the Child, they must also have the ―power
to support children taking cases to court, including the power (a) to take cases concerning children‘s
issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the
human rights issues involved in the case.‖91 Further, NHRIs should have the power to advice courts
and act as amicus curiae on human rights cases in an independent capacity. According to the
Commonwealth Secretariat, the limitation period should not be narrow so as to prevent the NHRI
from exercising this function and further the statute should not prevent the NHRI from inquiring
against any agencies of the state by exempting them.92

Promotion of Human Rights Awareness

NHRIs must, as part of their mandate, educate and create awareness on their work, services and
human rights issues in the country. Such awareness could be in the form of trainings, through use of

87 Ibid, Principle 1(3)(a).

88 Ibid, Principle 1(3)(d).
89 Supra n.12 at p.24.
90 Supra n.14 at p.10.
91 CRC, GC 2, para 14.
92 Supra n.12 at p.24.

40
media, holding meetings with civil society organisations and disseminating human rights
publications. They should promote the teaching of human rights in schools and universities and
create human rights literacy through information and education and with the help of the media.93

Functions under the CPCR Act, 2005

Several of the functions mentioned above are provided for in Section 13 of the CPCR Act. The
CPCRs have been empowered to perform a plethora of functions ranging from policy level
interventions, inquiries into violations, examination of laws and policies, and inspection of custodial
institutions. Rule 17 of the NCPCR Rules, 2006 lists additional functions to be performed by the
NCPCR. Rules framed by various State Governments also prescribe certain additional functions to
be performed by the SCPCRs. Apart from these functions prescribed under the CPCR Act,
Sections 31 and 32 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE
Act) vest the NCPCR and SCPCRs with the responsibility of examining and reviewing of safeguards
for rights under the RTE Act and making recommendations for their effective implementation.

The CPCRs are also required to inquire into complaints relating to children‘s right to free and
compulsory education. Further, the SCPCRs have been entrusted with the duty of hearing appeals
against decisions of the local authority. They have also been given a monitoring role under the
Protection of Children from Sexual Offences Act, 201294 and the Juvenile Justice (Care and
Protection of Children) Act, 2015.95 The Protection of Children from Sexual Offences Rules, 2012
elaborate the monitoring function and specify five distinct aspects of the Act that the Commissions
need to examine – the designation of Special Courts, appointment of Public Prosecutors,
formulations of guidelines for use of NGOs, and experts having knowledge of psychology, social
work, mental health, and child development to be associated with the pre-trial and trial stage,
designing and implementation of training modules, and the dissemination of information about the
Act.

2.4. Quasi-jurisdictional competence

The Paris Principles recommend that an NHRI should be authorised to hear and consider
complaints of violation brought by individuals, their representatives, third-parties, NGOs or any
other organisation and should in complaints before them,96:

• Seek an amiable settlement through conciliation or through binding decisions within the
limits prescribed by law, or on the basis of confidentiality;
• Inform complainants of their rights, remedies and make it accessible for them;
• Hear complaints and transmit them to authorities having the competence to address them;
and
• Make recommendations to the competent authority for law reform.

93Paris Principles, 1993, Principle 1(3)(f & g).

94 Protection of Children from Sexual Offences Act, 2012, Section 44.
95 Juvenile Justice (Care and Protection of Children) Act, 2015, Section 109.
96 Paris Principles, 1993, Additional Principles concerning the Status of Commissions with Quasi-

Jurisdictional Competence.
41
They must also have the power to recommend prosecution against those alleged to have committed
a human rights violation and to also approach the courts for remedies.97 They must also have the
power to compel witnesses to testify, conduct on-site investigation and require presentation of
evidence. According to the General Comment No.2, the institution must be vested with necessary
powers, such as the power to consider individual petitions and complaints and carry out
investigations, power to support children taking cases to court as well as to intervene in court.

Recognising that NHRIs do not have the power to ensure compliance with their recommendations,
the ICHRP recommends that NHRIs should have the power to compel authorities to respond to
their recommendations within a certain time-period.98 Further, they should also be able to refer
their findings and recommendations to courts.

The CPCRs have not been empowered to pass binding decisions or engage in conciliatory processes.
They have been vested with limited powers of a civil court which can be exercised while inquiring
into complaints.99 Specifically, they have the power to: (a) summon a person and examine him on
oath; (b) order discovery and production of any document; (c) receive evidence on affidavits; (d)
requisition public records or copies from court or office; and (e) issue commissions for the
examination of witnesses or documents. If a person fails to produce a document, refuses to take
oath, refuses to sign a statement, or answer a question, the CPCRs can forward the matter to a
Magistrate for action against him or her. The CPCRs have also been empowered to approach the
Supreme Court or High Court for directions, orders or writs after the completion of inquiry. 100 The
CPCRs do not, however, have the express power to investigate, to intervene in ongoing court cases,
or to demand response to its recommendation within a specified time frame.

2.5. Accountability

NHRIs must be accountable for their functioning and must uphold high standards of transparency.
Their work should be transparent and information about the same should be made available to the
general public in the form of annual reports. Evaluation reports by NHRIs should be available to
the general public in forms of media releases and summary reports. Such reports should include
information on complaints received, relief given, advice/recommendations made to the government,
and cases inquired into. The ICHRP suggests that such reports should be scrutinized by Parliament
thoroughly.101 While enjoying financial independence, NHRIs should also be financially accountable
and should clearly indicate the sources of income and the manner in which it has been spent and
their accounts should be audited by an independent agency.102

Sections 16 and 23 of the CPCR Act, 2005 stipulate that the NCPCR and the SCPCRs must submit
an Annual Report to the Central Government and State Governments, respectively. The
Governments are also under an obligation to submit a memorandum of action taken or proposed to
be taken on the recommendations of the Commission indicating the reasons for non-acceptance of

97 Supra n.12 at p.24.

98 ICHRP Report, pp.21-22.
99 CPCR Act, 2005, Section 14(1).
100 CPCR Act, 2005, Section 15(ii).
101 ICHRP Report, p.23.
102 Supra n.12 at p.23.

42
the recommendations, if any. The Central Government is duty bound to table the reports of
NCPCR within one year from the date of receipt of such reports as per Section 16 (2) of the CPCR
Act. No such time limit has been stipulated under Section 23 for State Governments.

Sections 29 and 30 of the CPCR Act lay down provisions with respect to accounts and audit of the
Commissions, which is necessary for financial accountability. They are required to adhere to the
General Financial Rules of the Central/State Government as the case may be. This would entail
strict observance of standards of financial propriety. The accounts of the Commissions are audited
by the Comptroller and Auditor-General periodically and the expenditures incurred on such audits
are to be paid from the funds allocated to the Commission.

2.6. Accessibility

NHRIs should be accessible to the vulnerable and disadvantaged. According to the General
Comment No.2, they must be geographically and physically accessible to children. Location of the
office is important and care must be taken to ensure that it is situated far away from government or
military centres.103Both ICHRP and the Commonwealth Secretariat recommend that NHRIs should
ensure that physical spaces and communication systems are also accessible to persons living with
disabilities.104 Further, ICHRP suggests that staff which is culturally diverse also enhances the
accessibility of the institution. Also, publicizing the values of the institution serve as a reminder for
staff and public on the role of institution.

The CPCR Act and majority of the rules pursuant to it are silent on accessibility. Only Rule 19(9) of
the Bihar SCPCR Rules, 2010, imposes an obligation upon the Secretary of the Commission to make
agenda items, notes, reports, minutes of the meetings, action taken reports, etc., accessible persons
with disability and children in general, if so required. There is no requirement of making the
structure child-friendly. The Commissions are all located in the State capitals. However, if the need
arises, meetings can be held outside of the headquarters. This provides the Commissions an
opportunity to reach out to children living in other parts of the State.

2.7. Relationship with civil society

The Paris Principles encourage NHRIs to cultivate relationships with NGOs working for the
protection and promotion of human rights, particularly those serving vulnerable groups such as
children, persons with disabilities, and migrant workers or working on specialised areas.105 The
ICHRP endorses this principle and advocates it as a way of strengthening the ―public legitimacy‖ of
the institution and ensuring that the work of the institution mirrors relevant issues. 106 Relationship
with civil society will bridge gaps and create linkages with the general public.

The CPCR Act does not expressly require the Commissions to engage with civil society. However,
the NCPCR and most SCPCRs have involved civil society organisations in their activities and
consultations.

103 Supra n.12 at p.31.

104 ICHRP Report, p.17.
105 Paris Principles, 1993, Principle 3(g).
106 ICHRP Report, p.15.

43
 2.9. Conclusion and Recommendations

The CPCRs have been vested with a broad mandate under the CPCR Act. Their monitoring
function has also been carved out in the RTE Act, POCSO Act, and the JJ Act, 2015. As a human
rights institution, the CPCRs should ideally function as independent oversight authorities. However,
there are several provisions in the CPCR Act that fail to meet the standards for an independent human
rights institution, as articulated in the Paris Principles and General Comment No.2.
The reigns of the selection process are entirely in the hands of the executive. Despite the provision
for a Selection Committee, appointments have been political and the selection process has been
reduced to a formality on many occasions. The judiciary has had to step in in different States to
check the arbitrary nature of appointments and the lack of adherence to procedures.

The lethargic approach of the Central Government and some State Governments with regard to the
establishment of the Commissions and appointment of Members has also been criticized by the
courts. The long pending vacancies in the NCPCR, for instance, signify the low priority accorded to
this body by the Central Government, despite repeated directions of the Supreme Court and the
High Court.

The flaws, however, are deeply structural. The overwhelming control of the executive over the
appointment process, finances, and hiring of staff, erodes the core principle of independence of a
human rights institution. By prescribing a very weak structure, the CPCR Act, has given the
executive ample opportunities to control the working of the CPCRs. The political nature of
appointments in most States also undermines the commitment to child rights as the SCPCRs
comprising such persons hesitate to highlight issues that embarrass the ruling party. Such provisions
of the CPCR Act undermine the nature and objective of a human rights institution for children and
thus inevitably impact their efficacy.
The only option available to strengthen CPCRs and to ensure compliance with international
standards is to amend the CPCR Act. A team at the Centre for Child and the Law, National Law
School of India University, Bangalore (CCL-NLSIU) had submitted recommendations for law
reform to the MWCD in June 2014.107 The recommendations were based on extensive research,
review of international standards and domestic judgments, as well as insights drawn from
interactions with the NCPCR and numerous SCPCRs. The recommendations relevant to ensuring
the foundational, functional, operational, and financial independence of CPCRs are reproduced in
Annexure A.
Annexure A: Excerpts from Recommended Amendments to the Commissions for Protection
of Child Rights Act, 2005 by CCL-NLSIU, 9 June 2014108
Amendment to Section 3(2), CPCR Act

107The CCL NLSIU team consisted of Dr. Archana Mehendale, Arlene Manoharan, and the author.
108Available at
https://nls.ac.in/ccl/cclsuugested/Suggested%20Amendments%20under%20UNICEF%20project/Suggeste
d%20Amendments%20under%20UNICEF%20project/Suggested%20amendments%20to%20Parent%20Act
%20and%20Rules/RcmdAmdmtstoCPCRA&NCPCRRules.pdf
44
3. Constitution of National Commission for Protection of Child Rights.-
(2) The Commission shall consist of the following Members, namely,-
(a) a Chairperson who is or has been a Judge of the Supreme Court;
(b) one Member who is or has been the judge of a High Court or an academician or legal
practitioner who has expertise in the area of child rights;
(c) five Members, out of which at least two shall be women and two shall be from amongst
persons belonging to the Scheduled Castes and Scheduled Tribes, from the following fields, to
be appointed from amongst persons of eminence, ability, integrity, standing and experience in.-
iPrimary and secondary education,
ii Child health, care, child rights or child development,
iii Juvenile justice or care of marginalized children or children with disabilities;
iv elimination of child labour or children in distress; and
v child psychology or sociology;

Amendment to Section 17. Constitution of State Commission for Protection of Child Rights.
- 1). The State Government shall constitute a body to be known as the…….. (Name of the state)
Commission for Protection of Child Rights to exercise the powers conferred on, and to perform the
functions assigned to it, under this Act.
(2) The State Commission shall consist of the following Members, namely,-
(a) a Chairperson who is or has been a Judge of the High Court;
(b) one Member who is or has been the judge of a District Court or an academician or legal
practitioner who has expertise in the area of child rights;
(c) five Members, out of which at least two shall be women and two may preferably be from
amongst persons belonging to the Scheduled Castes and Scheduled Tribes, from the following fields,
to be appointed from amongst persons of eminence, ability, integrity, standing and experience in.-

(i) Primary and secondary education,

(ii) Child health, care, child rights or child development,
(iii) Juvenile justice or care of marginalized children or children with disabilities;
(iv) elimination of child labour or children in distress; and
(v) child psychology or sociology

Introduction of Section 3A. Eligibility for appointment as Chairperson and other Members.-
(1) Any person who has at least ten years‘ experience in the areas stated in clause (c) of sub-section
(2) of section 3 and is not otherwise disqualified under the Act may be considered eligible for
appointment as Chairperson or Member of the Commission.

(2) No person having any past record of violation of human rights or child rights shall be eligible for
appointment as Chairperson or Member of the Commission.

(3) No person having been convicted and sentenced for imprisonment of an offence which in the
opinion of the Central Government involves moral turpitude shall be eligible for appointment as
Chairperson or Member of the Commission.

45
(4) No person having been removed or dismissed from service of the Central Government or a State
Government or a body or corporation owned or controlled by the Central Government or a State
Government shall be eligible for appointment as Chairperson or Member of the Commission.
(5) The Chairperson or Member shall not be a Member of Parliament or be a member of Legislature
of any State and shall not hold any office of trust or profit (other than his office as Chairperson or
Member) or be connected with any political party or carry on any business or practice any profession
and accordingly, before he enters upon his office, a person appointed as the Chairperson or Member
shall-
(a) if he is a Member of the Parliament or of the Legislature of any State, resign such
membership; or
(b) if he holds any office of trust or profit, resign from such office; or
(c) if he is connected with any political party, sever his connection with it; or
(d) if he is carrying on any business, sever his connection (short of divesting himself of
ownership) with the conduct and management of such business; or
(e) if he is practicing any profession, suspend practice of such profession.
(6) A person who has held an office of Chairperson or Member for two terms, in any capacity shall
not be eligible for re-appointment as Chairperson or, as the case may be, as Member.

Substitution of Section 4. Appointment of Chairperson and Members.109 –

(1) The Chairperson and other Members shall be appointed by the President by warrant under his
hand and seal.
Provided that every appointment under this sub-section shall be made after obtaining the
recommendations of a Selection Committee consisting of:
(a) The Prime Minister —Chairperson
(b) Speaker of the House of the People — Member
(c) Chief Justice of the Supreme Court 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 States — Member
(g) An eminent person who has done outstanding work in the field of child rights – Member.

Provided further that no sitting Judge of the Supreme Court or sitting Judge of a High Court shall
be appointed except after consultation with the Chief Justice of India.

(2) For the purposes of selection of the non-judicial Members of the Commission for Protection of
Child Rights, the Central Government shall invite applications from qualified candidates from the
public through an advertisement in at least four leading national dailies (two English and two Hindi)
and shall prepare a list of eligible candidates from the applications so received on the basis of the
eligibility criteria stated in sub-clause (c) of sub-section (2) of section 3. The list of eligible candidates
shall be submitted to the Selection Committee for its consideration.

(3) In recommending and appointing persons as Chairperson or Members, the Selection Committee
and the President shall also have regard to the geographical, cultural, political, social and economic
diversity.

This entire provision has been largely replicated from the Protection of Human Rights Act, 1993. Since the
109

Commissions perform similar functions, the appointment process should also be the same.
46
(4) The names of the judicial and non-judicial persons recommended by the Committee shall be
placed in the public domain for thirty days to invite objections in writing.

(5) All objections should be considered by the Committee and the President before the
recommendations and appointments are finalized.

(6) The selection and appointment process shall be fair, rigorous and transparent.

(7) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy
in the Committee.

Substitution of Section 18. Appointment of Chairperson and other Members of State

Commission110
(1) The Chairperson and other Members shall be appointed by the Governor by warrant under his
hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the
recommendation of a Committee consisting of
(a) the Chief Minister — Chairperson
(b) Speaker of the Legislative Assembly — Member
(c) Chief Justice of the High Court — Member
(d) Leader of the Opposition in the Legislative Assembly — Member
(e) An eminent person who has done outstanding work in the field of child rights –Member:
Provided further that where there is a Legislative Council in a State, the Chairman of that Council
and the Leader of the Opposition in that Council shall also be members of the Committee.

Provided also that no sitting Judge of a High Court or a sitting District Judge shall be appointed
except after consultation with the Chief Justice of the High Court of the concerned State.

(2) For the purposes of selection of the non-judicial Members of the Commission for Protection of
Child Rights, the Central Government shall invite applications from qualified candidates from the
public through an advertisement in at least four leading national or state dailies (two English and
two vernacular) and shall prepare a list of eligible candidates from the applications so received on
the basis of the eligibility criteria stated in sub-clause (c) of sub-section (2) of section 17. The list of
eligible candidates shall be submitted to the Selection Committee for its consideration.
(3) No appointment of a Chairperson or a Member of the State Commission shall be invalid
merely by reason of any vacancy in the Committee.
(4) In recommending and appointing persons as Chairperson or Members, the Committee and the
Governor shall have regard to the State‘s geographical, cultural, political, social and economic
diversity.
5) The names of the judicial and non-judicial persons recommended by the Committee shall be
placed in the public domain for thirty days to invite objections in writing.
(6) All objections should be considered by the Committee and the Governor before the
recommendations and appointments are finalized.

This entire provision has been largely replicated from the Protection of Human Rights Act, 1993. Since the
110

Commissions perform similar functions, the appointment process should also be the same.
47
(7) The appointment process shall be fair and transparent.

Amendment to Section 7. Removal from Office111

7. Removal from office. - (1) Subject to the provisions of sub-section (2), the Chairperson or any
other Member of the Commission shall only be removed from his office by order of the President
on the ground of proved mis-behaviour or incapacity after the Supreme Court, on reference being
made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that
behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may
be, ought on any such ground to be removed.

Amendment to Section 10(4). Procedure for transaction of business

(4) The Commission shall regulate its own procedure.
Addition to Section 11. Member-Secretary, officers and other employees of Commission
(4) The Commission may appoint such other administrative, technical and scientific staff and
consultants as it may consider necessary. The appointments should be fair, transparent and based on
merit.

(5) The salary and allowances payable to staff and consultants appointed by the Commission under
sub-section (4) shall be determined by the Commission from time to time.

Additions to Section 14. Powers relating to inquiries112

(3) The Commission shall have the power to require any person, subject to any privilege which may
be claimed by that person under any law for the time being in force, to furnish information on such
points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject
matter of inquiry and any person so required shall be deemed to be legally bound to furnish such
information within the meaning of section 176 and section 177 of the Indian Penal Code.
(4) The Commission or any other officer, not below the rank of a Gazetted officer, especially
authorised in this behalf by the Commission may enter any building or place where the Commission
has reason to believe that any document relating to the subject matter of the inquiry may be found,
and may seize any such document or take extracts or copies therefrom subject to the provisions of
Section 100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.
(5) The Commission shall be deemed to be a civil court and when any offence as is described in
section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is
committed in the view or presence of the Commission, the Commission may after recording the
facts constituting the offence and the statement of the accused as provided for in the Code of
Criminal Procedure, 1973 forward the case to a Magistrate having jurisdiction to try the same and
the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the
accused as if the case has been forwarded to him under section 346 of the Code of Criminal
Procedure,1973.

111 The removal procedure has been replicated from the Protection of Human Rights Act, 1993.
112 Replicated from Sections 13(3), (4), and (5) of the Protection of Human Rights Act, 1993.
48
(6) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the
meaning of section 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and
the Commission shall be deemed to be a civil court for all the purposes of Section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973.
Introduction of Section 14A. Investigation113
14A. Investigation. – (1) The Commission may, for the purpose of conducting any investigation
pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central
Government or any State Government with the concurrence of the Central Government or the
State Government, as the case may be.

(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency
whose services are utilised under sub-section(1) may, subject to the direction and control of the
Commission -
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.

(3) The provisions of this section shall apply in relation to any statement made by a person before
any officer or agency whose services are utilised under sub-section(1) as they apply in relation to any
statement made by a person in the course of giving evidence before the Commission.
(4) The officer or agency whose services are utilised under sub-section(1) shall investigate into any
matter pertaining to the inquiry and submit a report thereon to the Commission within such period
as may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if
any, arrived at in the report submitted to it under sub-section (4) and for this purpose the
Commission may make such inquiry (including the examination of the person or persons who
conducted or assisted in the investigation) as it thinks fit.

Introduction of Section 14B. Inquiry into complaints114

The Commission while inquiring into the complaints of violations of child rights may-
(i) call for information or report from the Central Government or any State Government or any
other authority or organisation subordinate thereto within such time as may be specified by it;
Provided that-
(a) if the information or report is not received within the time stipulated by the Commission, it may
proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry
is required or that the required action has been initiated or taken by the concerned Government or
authority, it may not proceed with the complaint and inform the complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to
the nature of the complaint, initiate an inquiry.

Additions to Section 15. Steps after Inquiry115

113 Replicated from Section 14, Protection of Human Rights Act, 1993.
114 Replicated from Section 17, Protection of Human Rights Act, 1993.
115 Modified version of Section 18(e), Protection of Human Rights Act, 1993.

49
(iv) subject to the provisions of clause(v), provide a copy of the inquiry report to the petitioner or
his representative;
(v) the Commission shall send a copy of its inquiry report together with its recommendations to the
concerned Government or authority and the concerned Government or authority shall, within a
period of one month, or such further time as the Commission may allow, forward its comments on
the report, including the action taken or proposed to be taken thereon, to the Commission;
Provided that if the concerned Government or authority does not forward its comments on the
report, including the action taken or proposed to be taken thereon, within a period of one month, or
such further time as the Commission may allow, the recommendations of the Commission shall be
deemed to have been accepted, and the concerned government or authority shall implement
whatever recommendation that has been made by the Commission in the inquiry report.
(vi) the Commission shall publish its inquiry report together with the comments of the concerned
Government or authority, if any, and the action taken or proposed to be taken by the concerned
Government or authority on the recommendations of the Commission.
(vii) the Commission may also recommend to the Central Government, State Government or the
appropriate authority, to appoint a counsel or a Special Prosecutor for the conduct of any such legal
proceedings or prosecutions; and the Central or State Government may, having regard to the nature
of the case and on being satisfied that it is necessary, in its opinion, to appoint a counsel or Special
Prosecutor, do so
(viii) The Central or State Government or the appropriate authority, as the case may be, shall
communicate in writing to the commission, from time to time, the progress of any legal proceedings
or prosecution filed on the recommendation of the Commission.
(ix) The Central or State Government or the appropriate authority shall not apply for withdrawal of
any such case or proceedings instituted under clause (i) without prior consultation with the
Commission.

Amendment to Section 20. Salary and allowances of Chairperson and Members116. – The
salary and allowances payable to, and other terms and conditions of service of, the Chairperson and
Members shall be such as may be prescribed by the State Legislature:
Provided that neither the salary and allowances nor the other terms of conditions of service of the
Chairperson or a Member, as the case may be, shall be varied to his disadvantage after his
appointment.

Substitution of Section 27(1). Grants by Central Government117

27. Funds of the Commission.- (1) The commission shall be self-accounting and all the
administrative expenses of the commission, including salaries, allowances and pensions payable to
persons serving with the commission, shall be charged on the Consolidated Fund.

116 This provision is based on Article 55 of the Constitution of Uganda pertaining to the Uganda Human
Rights Commission.
117 This provision is based on Article 55 of the Constitution of Uganda pertaining to the Uganda Human

Rights Commission.
50
(2) The Commission may spend such sums as it thinks fit for performing the functions under this
Act, and such sums shall be treated as expenditure payable out of the appropriation made by the
Parliament.

Substitution of Section 28. Grants by State Government

Funds of the Commission.-(1) The commission shall be self-accounting and all the administrative
expenses of the commission, including salaries, allowances and pensions payable to persons serving
with the commission, shall be charged on the Consolidated Fund.
(2)The State Commission may spend such sums as it thinks fit for performing the functions under
Chapter III, and such sums shall be treated as expenditure payable out of the appropriation made by
the Legislature.

Deletion of Section 33 and introduction of Section 32A

32A. The Government to consult Commission. –The Central or State Government as the case may
be shall consult the National and/or State Commissions, as appropriate, on all major policy matters
affecting children.

Introduction of Section 32B. Independence and Impartiality118

(1) The Chairperson, Members of the Commission or staff of the Commission shall serve impartially
and independently and exercise or perform his or her powers, duties and functions in good faith and
without fear, favour, bias or prejudice and subject only to the Constitution and the law.
(2) The Commission shall be independent and shall not, in the performance of its duties, be subject
to the direction or control of any person or authority.
(2) No organ of state and no member or employee of an organ of state nor any other person shall
interfere with, hinder or obstruct the Commission, any member thereof or a person appointed under
section 11 and section 21 in the exercise or performance of its, his or her powers, duties and
functions.
(3) All organs of state shall afford the Commission such assistance as may be reasonably required for
the protection of the independence, impartiality and dignity of the Commission.

This provision has been replicated from Section 4 of the Human Rights Commission Act, 1994 (South
118

Africa) and Article 54 of the Constitution of Uganda.

51
 Chapter 3. Commissions for Protection of Child Rights and other Human Rights
Institutions in India: Challenges and Possibilities
Swagata Raha1

India has several National and State level human rights institutions, (HRIs), with varying structures,
powers, and mandates, established with a view to promote and protect human rights, women‘s
rights, children‘s rights, rights of minorities, rights of persons belonging to scheduled castes and
scheduled tribes, and the rights of persons with disabilities. In 2014, the Working Group on Human
Rights in India and the UN2 listed 162 State HRIs in India.3

This Chapter explains the basis for establishment of the various human rights institutions in India,
contrasts their powers and structures, examines whether multiple human rights institutions are more
effective than a single body, and identifies areas of convergence and coordination.

3.1. Establishment of Human Rights Institutions in India and their Status

Except the National Commission for Scheduled Castes (NCSC) and the National Commission for
Scheduled Tribes (NCST), which have been provided for under the Constitution, all other human
rights institutions at the national level have been established through legislation.

Various motives have been attributed to nations that have established human rights institutions in
their country. It has been asserted that these institutions were created to prevent international
scrutiny of a country‘s human rights situation.4 According to the International Council on Human
Rights Policy (ICHRP), for governments with a poor record of human rights protection, this is a
―low-cost way of improving their international reputation‖.5 The establishment of the National

1 Senior Research Associate (Consultant), CCL-NLSIU. The author has relied on the research done under the
project on Justice to Children through Independent Human Rights Institutions at CCL-NLSIU and in
partnership with the UNICEF India Country Officer between 2010-2012. Insights have also been from a
report that she has co-authored titled A review of the working of the Karnataka State Human Rights Commission and
the Karnataka State Commission for Women, Daksh & Accountability Initiative April 2011, at
http://www.accountabilityindia.in/sites/default/files/daksh_kshrc_kscw_apr_2011.pdf The arguments
presented in this chapter were also published by the author in an article titled ―Multiplicity of human rights
institutions‖ in Agenda, Infochange News and Features, March 2013,
http://www.infochangeindia.org/agenda-issues/access-to-justice/9372-multiplicity-of-human-rights-
institutionsThis Chapter has benefited from the inputs of Arlene Manoharan, Fellow and Programme Head,
Juvenile Justice Team at CCL-NLSIU and Dr. Archana Mehendale.
2 WGHR, ―About WGHR‖, http://wghr.org/
3 Working Group on Human Rights & National Law University, Delhi, Resource Material on National

Colloquium for SHRIs on UN Guidelines Governing their Functioning, 28-29 November 2014, p.162. The
State Human Rights Commission, State Commission for Women, State Commission for Minorities, State
Commission for Protection of Child Rights, State Information Commission, Commissioner of Persons with
Disabilities, and the State Commission for Scheduled Castes was included in this count.
4 Asia Pacific Human Rights Network, ―National Human Rights Commission of India: Time to Stand Up and

Speak Out‖, February 2004, p.2., Vijayshri Sripati, ―India‘s National Human Rights Commission: A Shackled
Commission?‖, 18 B.U. Int'l L.J. 1 at 9.
5 International Council on Human Rights Policy, Performance & Legitimacy: National human rights institutions,

Geneva: ICHRP, 2000, (Second edition, 2004) p.1.

52
Human Rights Commission (NHRC) in India, in 1993, was perceived as an attempt to avert
international scrutiny and criticism about the excesses by the police and border security forces.6 This
―growing concern in the country and abroad about issues relating to human rights‖ was even
acknowledged in the Statement of Objects and Reasons of the Protection of Human Rights Act,
1993 (PHRA, 1993).

The need for focused attention on the problems faced by Scheduled Castes, Scheduled Tribes,
minorities, women, and persons with disabilities led to the establishment of institutions with special
mandates. The Commissions for Scheduled Castes, Scheduled Tribes, and for minorities, were
initially established through notification by the Central Government and were later given a more
stable and legal status. Prior to amendments in 1990, Article 338 of the Constitution provided for a
Special Officer for the Scheduled Castes and Scheduled Tribes, to investigate matters concerning
safeguards for Scheduled Castes and Scheduled Tribes. It was felt that a Commission in place of a
Special Officer would be better equipped to examine and monitor safeguards as the latter ―was not
enough‖ and thus in 1978, the multi-member Commission for Scheduled Castes and Scheduled
Tribes was established by way of an administrative decision of the Ministry of Home Affairs. 7 In
1990, the Constitution (Sixty-fifth Amendment) Act replaced the Special Officer with a five-member
Commission, as it was considered to be ―a more effective arrangement in respect of the
constitutional safeguards for Scheduled Castes and Scheduled Tribes‖. Subsequently, in 2003, the
Constitution (Eighty-ninth Amendment) Act created two separate institutions - the National
Commission for Scheduled Castes and the National Commission for Scheduled Tribes. This
bifurcation took place because it was felt that the issues concerning Scheduled Tribes necessitated a
―special approach for Tribal development and special independent machinery to safeguard the rights
of Scheduled Tribes.‖8

The report on the Committee on the Status of Women in India, 1974 had emphasized the need for
an independent institution to address women‘s rights.9 The National Commission for Women Act
was passed in 1990 in response to the demand from activists and organisations for a strong and
autonomous Commission that would not ―merely a recommendatory body but wanted to make it
mandatory for the government to consult and involved the Commission in the policy formulation
process.‖10 Disappointingly, the NCW Act resulted in the creation of a weak institution that largely
functions as an extension of a government department. For instance, the Act is silent on the
appointment process and this has resulted in political appointments with most being ―nominees of
the government in power‖ and with hardly any expertise or background on women‘s issues.11

6 Vijayshri Sripati, India‟s National Human Rights Commission: A Shackled Commission?, 18 B.U. Int'l L.J. 1 at 9.
South Asia Human Rights Documentation Centre, Judgment Reserved: the Case of the National Human Rights
Commission of India (South Asia Human Rights Documentation Centre 2001) pp.1-2.
7 National Commission for Scheduled Castes, ―Genesis‖, http://ncsc.nic.in/pages/display/9-genesis
8 Committee on the Welfare of Scheduled Castes and Scheduled Tribes, Thirty-third Report on Ministry of Tribal

Affairs – National Commission for the Scheduled Tribes – It‟s mandate and achievements – A review of its organisation and
working, Presented to Lok Sabha on 23.10.2008.
http://164.100.47.134/lsscommittee/Welfare%20of%20Scheduled%20Castes%20and%20Scheduled%20Tri
bes/33rd%20Report.pdf
9 National Commission for Women, ―A Brief History‖, http://ncw.nic.in/frmABTBreifHistory.aspx
10 Sadhna Arya, ―The National Commission for Women: Assessing Performance‖, p.10,

http://www.cwds.ac.in/OCPaper/NCWsadhnaArya.pdf
11 Ibid, p. 14.

53
The Minorities Commission was initially created by way of a resolution passed by the Ministry of
Home Affairs in 1978, which stated that ―effective institutional arrangements are urgently required
for the enforcement and implementation of all the safeguards provided for the Minorities in the
Constitution…‖12 In 1992, the National Commission for Minorities Act was passed and a statutory
character was imparted to the Minorities Commission, which then came to be known as the
National Commission for Minorities.13 At least 17 States have enacted legislation that provide for the
establishment of a State Minorities Commission.14

Human rights institutions can also be established to give effect to a country‘s obligations under an
international convention. For instance, the Commissions for Protection of Child Rights Act, 2005
(CPCR Act, 2005), was passed to give effect to India‘s obligations under the UN Convention on the
Rights of the Child, 1989.15

The Rights of Persons with Disabilities Act, 2016, which was enacted to give effect to India‘s
obligations under the United Nations Convention on the Rights of Persons with Disabilities, 2006,
provides for the appointment of a Chief Commissioner for Persons with Disabilities by the Central
Government and gives discretion to State Governments to appoint a State Commissioner for
Persons with Disabilities.16 The Commissioners were also provided for the under the erstwhile
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,
1995. State Commissioners have been appointed in 28 States and seven Union Territories.17

The PHR Act, 1993 and the CPCR Act, 2005 also provide for the establishment of Commissions at
the State level. These Acts allow discretion to the State Government in the matter of constituting
these Commissions. Many States have been lethargic in setting up these Commissions. For instance,
as per the NHRC‘s Annual Report, 2014-2015, only 25 States had notified State Human Rights
Commissions (SHRCs), but positions in some of the were lying vacant.18 35 State Commissions for
Protection of Child Rights (SCPCRs) have been established thus far. Some SCPCRs were established
only because the Supreme Court and some High Courts had directed the State Government to do
so.19 However, some of these SCPCRs exist only on paper or do not function adequately because of

12 National Commission for Minorities, ―Genesis of NCM‖, http://ncm.nic.in/Genesis_of_NCM.html

13 Ibid. l
14 Ministry of Minority Affairs, Annual Report 2016-2017, Para 16.8, p.31, at

http://www.minorityaffairs.gov.in/sites/default/files/Annual_Report_2016-17.pdf; The Ministry in its

Annual Reports lists 15 States that have a statutory commission and identifies Punjab and Kerala as two
States that have a non-statutory commission. However, both States have passed legislation to provide for the
State Commission for Minorities. See http://www.kscminorities.org/pdf/Act-Eng.pdf and
http://punjabsmc.com/pdf/Amended-Act-upto-31-12-16.pdf
15 Refer to Chapter 1 for details on the domestic and international factors that led to the enactment of the

CPCR Act, 2005.

16 Rights of Persons with Disabilities Act, 2016, Sections 74(1) and 79(1).
17 Commissioners for Persons with Disabilities in States Government (as on March 2018),

http://www.ccdisabilities.nic.in/page.php?s=&t=pb&p=cont_list_st_comm (accessed on 1 April 2018).

18 NHRC, Annual Report, 2014-2015, p.245, http://nhrc.nic.in/Documents/AR/NHRC_AR_EN_2014-

2015.pdf
19 In Peoples‟ Union for Civil Liberties v Union of India, 1999(4) Bom CR 608 the Bombay High Court directed the

State of Maharashtra to establish a State Human Rights Commission. Similar directions were issued by the
54
poor infrastructure, staff, or the indolence of the government in appointing the Chairperson and
Members. The State of Gujarat had even allocated the mandate of child rights to the existing State
Commissions for Women. This was challenged before the Gujarat High Court.20 Subsequently, the
Deputy Secretary, Social Justice and Empowerment Department submitted an affidavit to the court
stating that the government had decided to constitute a separate commission for protection of child
rights.21 Andhra Pradesh contemplated enacting a law to provide for a joint Commission for Women
and Children. CCL-NLSIU made an official submission to the Government of Andhra Pradesh
pointing to the differences in the structure and mandate of the SCPCR and SCW.22 It was also
highlighted that the CPCR Act, 2005 was passed to give effect to India‘s obligations under the
UNCRC and the State Legislature would therefore lack the legislative competence to enact a
legislation to provide for a joint commission. Doing so would encroach the Parliament‘s power to
legislate on matters in the Union List. Refer to Chapter 2 for details related to establishment of
CPCRs.

As on 31 March 2018, the record of 17 State Commissions for Women can be found on the
National Commission for Women‘s (NCW‘s) website.23 These States have enacted legislation to
provide for a State Commission for Women. However, this does not necessarily imply that the
SCWs are active or functional. They are largely defunct in some states as the Chairperson or
Members have not been appointed. Not all Members of the SCW have been appointed in
Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Mizoram,
Nagaland, Odisha, Punjab, Rajasthan, Sikkim, Tamil Nadu, Telangana, Tripura, Uttar Pradesh, and
Uttarakhand. In Karnataka, the term of the Chairperson and Members is ―subject to the pleasure of
the Government‖ thereby making it quite unstable.24

For the purpose of administration, the NCM comes under the administrative control of the Ministry
of Minority Affairs; the NCW and NCPCR under the Ministry of Women and Child Development;
the NCSC under the Ministry of Social Justice and Empowerment; and the NCST under the
Ministry of Tribal Affairs. The Ministry of Home Affairs is responsible for making staff and
infrastructure available to the NHRC and for laying their Annual Reports before Parliament. The
Commissions depend on these ministries for staff, infrastructure, resources, and grants and are
therefore often perceived as subordinate bodies under the ministry. They are rarely seen as
independent entities outside of the government structures.

3.2. Do we need multiple human rights institutions?

High Courts of Allahabad (Peoples‘ Union for Civil Liberties v. State of Uttar Pradesh, AIR 2000 All 103)
and Karnataka (Sri. P. Hanumanthappa v. The Home Secretary, The State of Karnataka, Decided on
05.12.2006).
20 Dalit Hak Rakshak Manch v State of Gujarat, Writ Petition (PIL) No. 142 of 2011.
21 Affidavit filed by Devendra Bhatt, Deputy Secretary, Social Justice and Empowerment Department,

Sachivalaya, Gandhinagar. (On file with the Centre for Child and the Law, National Law School of India
University).
22 CCL-NLSIU, ―Note on Legality feasibility of establishing a joint Commission for Women and Children in

Andhra Pradesh‖, 5 January 2011 (on file).

23 Available at http://ncw.nic.in/frmResourceCenter.aspx
24 Karnataka State Commission for Women Act, 1995, Section 4(1).

55
The Principles relating to the Status of National Institutions, 1993 commonly referred to as the Paris
Principles are a set of internationally accepted minimum standards that States should seek to comply
with, while establishing national human rights institutions.25 According to the Paris Principles,
human rights institutions should function as independent entities and no external agency should
interfere with their working.26 HRIs should have the operational autonomy to appoint staff, allocate
resources, and devise work plans. They should also have the financial autonomy to utilize their funds
according to their requirements. The government should not influence or interfere with its
operations.

The HRIs in India enjoy varying degrees of independence. For instance, the NHRC is headed by a
former Chief Justice of the Supreme Court,27 while the Chairperson of the NCW is nearly always a
political appointee.28 The NHRC has considerable financial autonomy and does not require the
approval of the government on any matter, unlike the NCPCR. Because of its composition and
powers, the NHRC is perceived as more independent than the others.

The non-binding nature of recommendations made by the Commissions often evokes the sentiment
that these Commissions do not serve any purpose. They have also earned the reputation of being a
post-retirement hub for bureaucrats, political candidates and office-bearers with no background in
or understanding of human rights. This is not entirely a sweeping generalization, as the present
Chairperson of the NCSC29 is also a Member of the Lok Sabha, the Chairpersons of the NCST is a
former Parliamentarian,30 the former Chairperson of the NCW was a member of the National
Executive of the ruling party,31 the Chairperson of the NCM32 was the Chairman of a public sector
undertaking and National General Secretary, Minority Morcha, BJP, and the Chairperson of the
NCPCR33 is a retired bureaucrat. Political appointees often lack necessary qualifications, subject-
matter expertise and do not inspire confidence in the independence of the Commission. The extent
of political control over some Commissions is evident from the experience of the NCW, where a
change in government at the Centre destabilised the Commission and Members appointed by the
previous government were removed.34

25 Principles relating to the Status of National Institutions (The Paris Principles) Adopted by General
Assembly resolution 48/134 of 20 December 1993, at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx
26 Refer to Chapter 2 for explanation of the international standards relevant for human rights institutions.
27 Protection of Human Rights Act, 1993, Section 3(2)(a).
28 Supra n.10 at p.14.
29 National Commission for Scheduled Castes, http://ncsc.nic.in/files/Chairman%20BIO%20DATA.pdf

(accessed on 31.03.18)
30http://ncst.nic.in/sites/default/files/untitled%20folder/resume%20nandkumar.pdf (accessed on 31.03.18)
31 See http://ncw.nic.in/frmCurrentCommission.aspx (accessed on 24 June 2016) and

https://en.wikipedia.org/wiki/Lalitha_Kumaramangalam (accessed on 24 June 2016)

32 Sh. Naseem Ahmad, http://ncm.nic.in/naseem%20ahmad.html (accessed on 24 June 2016)
33 PTI, ―Stuti Narain Kacker appointed NCPCR Chairperson‖, The Economic Times (23 September 2015)

http://articles.economictimes.indiatimes.com/2015-09-23/news/66822767_1_child-rights-child-
development-ministry-central-adoption-resource-authority (accessed on 24 June 2016).
34 Anon, ―Expulsion of NCW members degrading and unconstitutional‘, Deccan Herald, 29 May 2005,

http://archive.deccanherald.com/Deccanherald/may292005/national1841462005528.asp ; Anon, ―UPA axe

falls on three NCW members‖, The New Indian Express, 21 May 2005,
http://www.hvk.org/articles/0505/62.html.
56
Several Commissions have complained of an indifference and lack of regard on the part of the
government towards them.35 At a statutory full Commission meeting at the NHRC on 3 February
2015, the Chairperson, NCSC and Vice-Chairperson, NCST emphasized that recommendations
need to be made binding. Other aspects that were stressed were that vacancies within the
Commissions need to be filled on priority, adequate funding should be provided to Commissions
for them to fulfil their mandate, Annual Reports should be tabled in Parliament without delay and
more concrete responses should be provided by the Government in response to recommendations.36
Despite its status, the NHRC has earned the moniker of a ―toothless tiger‖ from civil society, the
NHRC itself,37 and even the Supreme Court38 because of the poor compliance of its
recommendations by the government.39 Although there was a 1455% increase in the complaints filed
before the NHRC from 1995 to 2015, the sanctioned staff dropped from 59 to 49, 40 severely
hampering its functioning. Complaints filed before the NHRC have increased. At the State level as
well, Commissions fail to function or fulfil their mandate because of the government‘s tardiness in
providing them with space, staff, finances, and infrastructure. This partially stems from the absence
of an understanding of the need for independent human rights institutions.

In India, the composition, mandate, functions, and powers of human rights institutions vary. For
instance, the mandate of the NHRC is limited to inquiring into complaints of violation of human
rights or abetment or negligence in the prevention of such violation by public servants. The NCW
and NCPCR, on the other hand, can look into complaints relating to deprivation of women‘s rights
and child rights, respectively, irrespective of whether the complaints relate to public servants or
private entities. The NHRC has certain additional powers such as the power to require any person to
furnish information on points relevant to the subject-matter of the inquiry, power of search and
seizure, and the power to call for information or report from the government. If the report is not
received in time the NHRC has the power to proceed with the inquiry. The NHRC can also utilize
the services of any officer of the investigating agency of the Central or State Government for the
purpose of investigation. Unlike other Commissions, the NHRC can take steps during inquiries and
does not have to wait to make recommendations only after completion of inquiries.

The multiplicity and diversity of HRIs in India prompts several concerns - does it not ―undermine
the principle of the indivisibility of rights‖?41 It also leads us to a larger question - is it efficacious to

35 Sugata Srinivasaraju, ―Drill them all into line‖, Outlook, 24 May 2010,
http://www.outlookindia.com/article.aspx?265435
36 Record of the discussion of the statutory Full Commission (SFC) meeting held at 11am on 03.02.2015 in

the NHRC Conference Room, Manav Adhikar Bhawan, pp.4-5,

http://nhrc.nic.in/Documents/Meeting_of_SFC_held_on_03_02_2015_22022018.pdf
37 Rineeta Naik, ― Granted the National Human Rights Commission is a ‗toothless tiger‘, but can‘t it even

growl?‖, Scroll.in, 16 April 2018, https://scroll.in/article/845857/granted-the-national-human-rights-

commission-is-a-toothless-tiger-but-cant-it-even-growl
38 Extra Judl. Exec. Victim Families Assn. & Anr. V. Union of India, (2017) 8 SCC 417.
39 Sankar Sen, ―One Toothless Commission?‖ The Pioneer, 14 October 2016,

http://www.dailypioneer.com/columnists/oped/one-toothless-commission.html
40 Extra Judl. Exec. Victim Families Assn. & Anr. V. Union of India, (2017) 8 SCC 417, para 43.
41 Richard Carver, ―One NHRI or Many? How many institutions does it take to protect human rights? –

Lessons from the European experience‖, Journal of Human Rights Practice Vol 3, Number 1, 2011, pp. 1–24
at p.11.
57
have multiple institutions with different composition, mandate, and powers? Will the existence of
institutions devoted to issues of a particular group lead to better protection and promotion of their
rights? Will they be in a better position to devote focussed attention to the human rights concerns of
special groups and also avoid the risk of prioritizing the interests of one group over others? On the
other hand, the presence of these multiple institutions has also led to duplication of efforts and
simultaneous inquiries. It is debatable whether they serve as one among many options for a victim of
a human rights violation. In an article on this very issue, Richard Carver explains the position in
European countries and reviews the international legal framework, making an observation that there
is no clear principle or guideline on the matter of single versus multiple institutions. The decision on
this matter should be driven by the ―pragmatism and effectiveness‖42 of the options. Based on these
considerations, he states that a single institution is preferable as:

…generally the model of a single national human rights institution is likely to lead to greater
effectiveness, provided that it is designed with inbuilt guarantees that the interests of
particular vulnerable groups will not be neglected and will receive an appropriate level of
priority. A single institution offers several clear advantages. It will work within a coherent
legal framework with consistent powers in relation to all vulnerable groups. It will maximize
institutional resources, avoiding duplication and sharing best practice. It will be more
accessible to vulnerable groups and better able to address cases of multiple discrimination. It
will exercise greater authority in relation to governmental and other bodies and will offer a
clear, comprehensible public profile on human rights issues.43

Carver cites the examples of United Kingdom, Croatia, Sweden, and Australia where multiple
institutions were merged to form one single institution.44 In the case of Sweden, for instance, four
Ombudsman institutions dealing with Equal Opportunities, Ethnic Discrimination, Disability, and
Discrimination because of Sexual Orientation were dissolved and replaced with the Equality
Ombudsman.45 Sweden also has a Children‘s Ombudsperson to monitor the implementation of the
UNCRC and discussions about the establishment of a NHRI in Sweden are underway because of
the continuing fragmented response to human rights.46 In the United Kingdom, the Equality Act,
2006 provided for the establishment of the Commission for Equality and Human Rights and the
dissolution of the Equal Opportunities Commission, Commission for Racial Equality and the
Disability Rights Commission.47

O‘Cinneide notes concerns about an overstretched single commission and the possible ―dilution of
focus and effectiveness and the subsuming of the well-developed and specialist equality functions

42 Ibid at p.21.
43 Supra n.42 at pp.2-3.
44 Supra n.42 at p.1.
45 Government Offices of Sweden, ―New anti-discrimination legislation and a new agency, the Equality

Ombudsman‖, Fact Sheet,

http://www.government.se/contentassets/fdd977b5d2ba43459ab3c02fd7e99d5b/fact-sheet-new-anti-
discrimination-legislation-and-a-new-agency-the-equality-ombudsman
46 Raoul Wallenberg Institute, Roundtable Report – A Swedish National Human Rights Institution: Exploring

Models and Options, 2 June, 2016, http://rwi.lu.se/app/uploads/2017/03/Roundtable-on-A-Swedish-

National-Human-Rights-Institution.pdf
47 Equality Act, 2006, Long Title,

http://www.legislation.gov.uk/ukpga/2006/3/pdfs/ukpga_20060003_en.pdf
58
within the broader human rights agenda‖, but also observes that this has not been a problem with
unified commissions in the UK, New Zealand, and Ireland.48 This is undoubtedly a valid concern
and a unified HRI should strive to ensure that no strand is ignored, diluted, or undermined.
Apparent conflict between different strands may also create tension. Besides, different approaches
may be required for different groups and a ―one size fits all‖ approach may not work.49

At the same time, equal protection of rights of victims of human rights violations can be best
ensured by a single HRI.50 Should a victim not be equally protected no matter which Commission
he/she may appear before? As the Commissions are prohibited from examining complaints before
another Commission, an ignorant victim should not have to suffer for not approaching the
‗appropriate‘ body at the first instance.

In India, the difference in stature of the Chairperson and Members in each of the Commission often
determines their relationship with government departments and the seriousness with which their
recommendations into consideration. On the other hand, it is also cumbersome for officials to deal
with and respond to different Commissions instead of one single institution. The Commissions also
cite inadequacy of infrastructure, staff, resources, and funds as critical factors that hinder their
performance.

One clear downside of multiple institutions with different powers and mandates is that it may lead
to inconsistent response to and handling of issues affecting different groups.51 For instance, while
the NHRC52 and the NCPCR made submissions in respect of the change in the juvenile justice law
and advocated against the treatment of children who allegedly commit serious offences as adults, 53
the Delhi Commission for Women took the lead in ensuring that the Bill providing for the treatment
of children as adults was passed by the Rajya Sabha.54 The NCPCR had made the following
submission to the Ministry of Women and Child Development:

Putting children in conflict with law under regular criminal justice system in any manner is
against the principle of care, protection, development, rehabilitation and social reintegration.
It is also a violation of the rights of children guaranteed under Article 39 of the Constitution
of India which states that ―children are to be given opportunities and facilities to develop in
healthy manner in freedom and dignity and that childhood and youth are protected against
exploitation.‖

48 Colm O‘Cinneide, A Single Equality Body – Lessons from abroad, Equal Opportunities Commission, Working
Paper Series No.4 (2002), p.45.
49 Ibid, p.17.
50 Supra n.42 at pp.13-14.
51 Supra n.42 at p.2.
52 Maneesh Chibber, ―Juvenile Justice Bill: NHRC opposed move to lower age, says former chief,‖ 27

December 2015, http://indianexpress.com/article/india/india-news-india/juvenile-justice-bill-nhrc-opposed-

move-to-lower-age-says-former-chief/ (accessed on 31 March 2018).
53 NCPCR Comments & Recommendations on the Juvenile Justice (Care and Protection of Children) Bill,

2014, pp.1-2, available at http://ncpcr.gov.in/showfile.php?lid=934 (accessed on 31 March 2018).

54 ANI, ― DCW chief Swati Maliwal appeals to MPs to pass Juvenile Amendment Bill‖, DNA, 21 December

2015, http://www.dnaindia.com/india/report-dcw-chief-swati-maliwal-appeals-to-mps-to-pass-juvenile-
amendment-bill-2158185 (accessed on 31 March 2018).
59
The NCPCR also stated:

Judging children based on their mental and physical capacity to commit such offence would
not be possible as there are no universally defined standard to ascertain such facts and also
in present circumstances, there are no competent trained psychologists and psycho-social
workers available in the districts to provide technical support to the Board to conduct such
inquiry. In such situation, the inquiry will be merely a formality and children will be referred
to children‘s court for further trial.

This was an opportunity for the various human rights institutions at the National and State level to
dialogue and come together on a matter with wide ramifications for adolescent children above 16
years and below 18 years alleged to be in conflict with the law. Yet, a very strong divergent position
taken by the Delhi Commission for Women led to the passing of the Juvenile Justice (Care and
Protection of Children) Bill, 2014.55

3.3. Need for Coordination between HRIs

The Paris Principles state that the national institution should ―maintain consultation with the other
bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human
rights (in particular ombudsmen, mediators and similar institutions).‖ Given the multiplicity of
institutions, there is a definite need for greater cooperation and coordination between them at the
national and state level so that considered and effective responses are framed to address issues of
overlapping concern.

Most Commissions in India are expected to discharge functions that include evaluation of existing
safeguards for human rights protection and making recommendations for strengthening them,
inquiring into complaints of human rights violations, undertaking visits to custodial institutions,
creating awareness about rights, promoting harmonization of domestic laws with international
conventions, and undertaking research and analysis on human rights issues. They have all been
empowered with the powers of a civil court trying a civil suit while inquiring into a violation of
rights. Post-inquiry, they can make recommendations such as initiation of proceedings against those
responsible for the violation, compensation, or any other remedial action. These recommendations
can only be made to the government. Though their recommendations have no binding value, the
Commissions serve as an alternate forum which is easily accessible and where relief can be speedy
and inexpensive.

The Protection of Human Rights Act, 1993 (PHR Act), is the only legislation which provides a
platform for coordination between some of these institutions at the national level. According to
Section 3(3) of the PHR Act, the Chairpersons of the NCW, NCM, NCSC, and the NCST are
deemed to be members of the NHRC for the purpose of discharge of all functions other than
inquiry into complaints. The Chairperson or Member of NCPCR attends the meetings of the full
Commission as a special invitee as the NCPCR was established after the amendment of the

55Meenal Thakur, ―Rajya Sabha passes Juvenile Justice Bill‖. Livemint, 23 December 2015,
https://www.livemint.com/Politics/PYP4WQTleLGAhW2rodttIP/Juvenile-Justice-Bill-passed-in-Rajya-
Sabha.html
60
Protection of Human Rights Act in 2006. These meetings are usually held once a year and are
attended by the Chairpersons or Members of the other Commissions.

At present, the various human rights institutions in India are each treading their own path based on
their mandate. Statutory Full Commission meetings are held on an annual basis by the NHRC. Even
though in September 2009, a suggestion that the Full Commission meet every two months and take
up a specific issue for discussion was unanimously agreed upon,56 that has not been translated into
practice. There is a definite need for greater cooperation and coordination between them at the
national and state level so that considered and effective responses are framed to address issues of
overlapping concern. To this end, on 3 March 2015, 24 SCPCRs adopted the Guwahati Charter of
Action on Child Protection in which they acknowledged ―the strength of collective action‖ and
agreed to ―periodically dialogue‖ with the NCPCR, SCPCRs and other State Human Rights
Institutions ―to share good practices and effective methods of operation and to collaborate on issues
of common concern.‖

3.3.1. Need for an integrated complaints system

Although a prohibition on accepting complaints that are being inquired into by other Commissions
exists, instances of parallel inquiries by two or more Commissions are not uncommon. This leads to
loss of considerable time and resources; possible secondary victimization of child complainants and
other victims of violations; and should therefore be avoided. In March 2011, a leading newspaper
reported that young girls in Mandasaur district of Madhya Pradesh were being abducted and being
administered steroids and hormones to accelerate their growth so that they could be sold for sex
work.57 The Minister of Women and Child Development asked the NCPCR to probe into the
matter. Incidentally, the NHRC had taken suo motu cognizance of the same matter, considered it a
violation of human rights of young girls and proceeded to issue notices to the Chief Secretary and
Director General of Police, Madhya Pradesh calling for detailed reports in the matter.58 The fact
that the NHRC had taken cognizance of the matter was reported and thus was within the knowledge
of the NCPCR. Since Section 13(2) of the CPCR Act, 2005 precludes the NCPCR from inquiring
into matter pending before any other Commission, the NCPCR decided not to inquire into the
matter. This is one of the few cases in which the prospective overlap was averted. However, it does
underline the need for development of a system to identify and track matters that are being inquired
into by two or more Commissions. It also highlights that discrimination or violations can be
multiple. The NCSC could also take notice of the matter if the children belonged to the Scheduled
Caste community.

At times, contradictory recommendations may be issued by Commissions which cause unnecessary

complications and delay the response from the government. For instance, both the Delhi SCPCR
and the NCPCR inquired into the matter of admissions tests for students seeking admission to Class
VI, being conducted by the Rajkiya Pratibha Vikas Vidyalayas, which are schools run by the
Directorate of Education, Government of Delhi. The Commissions arrived at different

56 Statutory Full Commission Meeting, 17 September 2009, http://nhrc.nic.in/disparchive.asp?fno=1906

57 Sanjib Kr Baruah, ―Govt orders probe, NHRC calls for report‖, The Hindustan Times, 24 March 2011,
http://www.hindustantimes.com/Govt-orders-probe-NHRC-calls-for-report/Article1-677293.aspx
58 NHRC takes suo motu cognizance of a media report alleging abducted small girls being pushed into sex trade

by administering hormones, 24 March 2011, http://www.nhrc.nic.in/dispArchive.asp?fno=2228

61
recommendations. While the NCPCR recommended cancellation of the admissions based on the
test,59 the DCPCR recommended that the admissions need not be cancelled but that the test be
abolished from the next year while also recommending a fine of Rs 25,000.60

A basic protocol that can be followed by Commissions to avoid parallel inquiries is to require the
complainant to submit a declaration stating that the matter has not been filed before any other
Commission and also by inquiring from the government or public authority as to whether any other
Commission is looking into the matter. Further, the complaints division will have to keep track of
the websites of other Commissions and newspapers to see if they have taken suo-motu cognizance of
a matter.

Although in the long run, a single NHRI is recommended, pending that Commissions must
collectively invest in and develop a system that will facilitate smooth transfer or referral of
complaints between the Commissions so that a victim of an alleged human rights violation is not
denied timely relief. At the statutory full Commission meeting held on 7 February 2012 in the
NHRC, the ―need to have a mechanism to ensure that there is no duplication in taking cognizance
of the same complaint or in the registration of complaints/cases by various National Commissions‖
was raised. The National Commissions agreed to consult the National Informatics Centre for an
inter-linked complaints registration system.61 At an Inter-Commission Dialogue on Child Rights in
India organised by the Centre for Child and the Law, National Law School of India University
Bangalore (CCL-NLSIU) with support from UNICEF-India on 22 February 2012, the
representative of six national Commissions and Chairpersons of various State Commissions agreed
that technology must be used to connect implementing agencies with monitoring agencies from
national-state-district-sub-district level.62 Such technology can help detect if the same complaint has
been filed before any other human rights institution and for this purpose protocols, standard
operating procedures, guidelines for co-ordination between Commissions should be developed.
Thereafter, in a full Commission meeting on 03 February 2015, the Chairperson, NCM had
expressed reservations regarding inter-linking of the [Central Management Information System]
CMIS as the NHRIs had different mandates and complaints systems, but agreed that it ―would be
useful in segregating complaints which are sent by the aggrieved, simultaneously, to more than one
Commission.‖63Similar reservations were also expressed by the Chairperson of the NCSC, and a
decision was taken that the Secretaries of the National Commissions would meet to discuss the
inter-linking of the CMIS of the NHRC with other National Commissions. 64 However, no minutes
of meetings of the statutory full Commission are available on the NHRC‘s website after 2015. It is
thus not clear if there has been any progress on interlinkage of the CMIS.

59 Anon, ―Pratibha Vikas schools indicted for violation of RTE Act‖, 19 June 2010,
http://www.indiaedunews.net/Delhi/Pratibha_Vikas_schools_indicted_for_violation_of_RTE_Act_11894/
60 DCPCR, ―Interventions in Some Important Cases‖, http://www.delhichildrencommission.gov.in/rte.html
61 Minutes of the Meeting of the Statutory Full Commission held At 11.00 Am on 07th February 2012 in The

National Human Rights Commission, at

http://nhrc.nic.in/Documents/MINUTES_STAT_%20FC_07_02_2012.pdf
62 CCL-NLSIU, Inter-Commission Dialogue on Child Rights in India – A Report, (22 February 2012) p.14

https://www.nls.ac.in/ccl/justicetochildren/ReportCommissionDialogue.pdf (accessed on 20 June 2016).

63 Record of the discussion of the statutory Full Commission (SFC) meeting held at 11am on 03.02.2015 in

the NHRC Conference Room, Manav Adhikar Bhawan, p.2,

http://nhrc.nic.in/Documents/Meeting_of_SFC_held_on_03_02_2015_22022018.pdf
64 ibid, p.4.

62
At the State level, the SCPCR should establish a working relationship with the State Human Rights
Commission, the State Commission for Women, and other State human rights institutions. The aim
of the engagement should be to collaborate on key issues or problems plaguing the State and to also
avoid duplicity of interventions with respect to complaints. The PHR Act, 1993 should also be
amended to include a provision for deemed members at the State level so that Chairpersons of the
SCPCR, SCW, SCM and other HRIs can be invited to attend meetings and participate in discussions
on issues that are cross-cutting.

3.3.2. Research and Advocacy on issues of common concern

Violations can be of multiple kinds. Discrimination against a child belonging to a minority

community in a school because of her actual or perceived HIV status constitutes a violation of her
right to education and right to equality and could come within the mandate of a CPCR, NCM,
NCW, or the NHRC. While an inquiry into the complaint can be done only by any one
Commission, research on the larger issue of discrimination against children or people living with
HIV/AIDS can be undertaken by any or all of them collectively. Since recommendations for law
and policy reforms are a function common to all Commissions, they can collaborate on broad issues
of common concern with a view to press the government to act on their recommendations. For
instance, at a full Commission meeting in February 2012, all the Commissions agreed to recommend
to the government to amend the laws relating to child labour so as to ensure that they are in
harmony with the Right of Children to Free and Compulsory Education Act, 2009, the UN
Convention on the Rights of the Child, 1989, and relevant ILO Conventions.65 The Commissions
can also consider approaching the courts collectively on human rights violations, especially is
matters that are extremely serious given the number, the geographical spread and the intersectional
nature of violations.

At the Inter-Commission Dialogue on Child Rights in India, the representative of six national
Commissions and Chairpersons of various State Commissions agreed to identify issues concerning
child rights violations that require in-depth research, collaborate on existing research projects, and
examine ways in which completed reports can be taken forward.66

3.3.3. Promoting Human Rights Literacy

The proliferation of human rights institutions at the national and state level has not translated into
awareness about their existence, mandate, and functions. Complaints that they receive are largely
from urban areas. All Commissions have a budget for promotion of human rights literacy and
awareness. To enhance their accessibility efficaciously, they must combine resources to spread
information about the various Commissions and who should be approached for which violation.
They must also develop manuals on human rights that should be incorporated in training courses
for teachers, police, public servants, and others.

65 Minutes of the Meeting of the Statutory Full Commission held At 11.00 Am on 07th February 2012 in The
National Human Rights Commission, at
http://nhrc.nic.in/Documents/MINUTES_STAT_%20FC_07_02_2012.pdf
66 Centre for Child and the Law, Inter-Commission Dialogue on Child Rights in India – A Report,

http://www.nls.ac.in/ccl/justicetochildren/ReportCommissionDialogue.pdf
63
3.3.4. Promoting harmonization between domestic laws and international conventions

The PHR Act, 1993 and the CPCR Act, 2005 expressly provide for the study of international treaties
and making recommendations for their implementation as one of the functions of the institution.
While the NCSC, NCST, NCM, and NCW have not been vested with such a function, they are not
prevented from taking it up as part of general functions. They can press for law reform and policy
changes based on recommendations made by various treaty bodies on child rights. For instance, at
the end of the Universal Periodic Review of India‘s human rights record in 2017, some of the
recommendations made to India were:67
 Develop a national strategy to tackle exploitative labour practices and to ratify the ILO
Protocol of 2014 to the Forced Labour Convention, 1930, and continue to strengthen
protections for children;
 Ratify the Minimum Age Convention, 1973 (No. 138) and the Worst Forms of Child Labour
Convention, 1999 (No. 182) of the International Labour Organization;
 Expand the scope of the Right of Children to Free and Compulsory Education Act and
promote human rights education in the school curriculum;
 Adopt a comprehensive national plan on inclusion in order to combat persisting inequality,
paying particular attention to persons in vulnerable situations such as women, children,
persons with disabilities and minorities;
 Remove barriers prohibiting scheduled castes and schedule tribes from registering their
children‘s births and obtaining birth certificates;
 Continue its fight against poverty, lack of adequate food, safe water and sanitation, while
paying special attention to the need to introduce a child rights-based approach in all policies;
 Continue to ensure access to education for all, especially children of scheduled castes
and tribes;
 Improve the enforcement of the legal provisions prohibiting harmful and discriminatory
practices against women and girls, in particular child marriages, dowry-related murders and
honour killings, and ensure that all women, without discrimination, have access to public
services; and
 Continue efforts aimed at improving the access of persons with disabilities to education,
vocational training and health care.

All of the above-mentioned recommendations relate to the mandates of at least two or more
Commissions. It is thus important that the Commissions collectively examine whether the
government has taken any steps to achieve the recommendations (relevant to the mandate of the
institution) made by the Human Rights Council or other treaty bodies and accepted by the
government. Commissions can identify other issues on which they could jointly make submissions
to treaty bodies or special procedures.

Further, on the right to education, the NCM, NCW, NCSC, and NCST could join hands with the
NCPCR to assess the extent to which this right is available to children from minority groups, the SC

67Responses to Recommendations, India Third Review Session 27, 4 May 2017, https://www.upr-
info.org/sites/default/files/document/india/session_27_-
_may_2017/response_to_recommendations_india_2017.pdf (accessed on 1 April 2018).
64
and ST community, and the girl child and make a submission to the Special Rapporteur on the right
to education.

3.4. Way forward

The Commissions in India have emerged in response to international and domestic pressures, and
except the NHRC, all of them have been vested with a specialised mandate. They appear to be
premised on the belief that such institutions can protect and promote the rights of a special group
more effectively than a single institution with a broad mandate. However, such an approach raises
several concerns about effectiveness, lack of an intersectional approach to issues, duplication of
efforts, difference in status, a scramble for scant resources, and a concomitant repercussion on their
effectiveness.

A larger question that must therefore be considered is whether multiple human rights institutions are
more effective than one single institution with a broad mandate. This is a complex policy question
that calls for an audit of existing HRIs and the values and powers that should guide and be available
to a single HRI in order for it to be independent and effective. As O‘Cinneide‘s concludes, ―If done
well, comparative experience shows that a single commission can deliver a mutually reinforcing
equality agenda. If done badly, then a considerable opportunity will have been lost.‖68

In the short-term, there is a definite need for a formal coordination system among human rights
institutions at the national and state level. At the Inter-Commission Dialogue, the representatives of
various human rights institutions suggested that a Child Rights Desk/Officer should be designated
for child rights in each human rights institution so as to promote coordination on child rights issues.
It was felt that innovative and creative solutions are necessary to overcome structural and practical
constraints. However, no steps have been taken thus far to give effect to this recommendation. It is
important that the recommendations for an integrated MIS Complaints System and better
coordination between the HRIs at the National level be acted upon. Similar convergence is also
necessary at the State level and between the National and State HRIs to avoid duplication and
inconsistent responses to the same matters. Finally, the full Commission meeting of the NHRC is a
very important space for the NHRIs to dialogue and take the mandate of the HRIs and their battle
for independence forward. It should be proactively utilized to positively impact the implementation
of human rights in India.

68 Supra n.51 at p.55.

65
 4. Monitoring of the POCSO Act, 2012 by Commissions for Protection of Child Rights
By Nina Nayak1
I. Introduction
The Commissions for Protection of Child Rights Act, 2005 (CPCR Act) is a legal instrument to
intervene in the prevention, promotion and protection of child rights within the framework of
national policies, legislations and plans. It urges the setting up of the National Commission for
Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCR)
which are imbued with the authority to oversee the implementation of child rights programmes,
receive complaints from across the country on any violation of child rights, take suo motu cognizance
of deprivation of the rights and services to children and given the powers of a civil court to conduct
inquiries and recommend measures to be taken to redress the same. They also have the
responsibility to establish a culture that respects child rights.
SCPCRs have the same mandate in their respective States as that of the NCPCR, which has a
country wide jurisdiction with the limitation under Section 13.(2), CPCR Act that ―it shall not
inquire into any matter which is pending before a State Commission or any other Commission duly
constituted under any law for the time being in force‖. While the NCPCR was constituted in March
2007, State Governments have progressively taken the initiative and almost all the States and UTs
have established SCPCRs.
The CPCRs have a clear mandate, under Section13(1)(a) to examine and review safeguards provided
by or under any law for the time being in force for the protection of child rights and recommend
measures for their effective implementation. Further under NCPCR Rules, 2006 framed for
NCPCR, this function has been further been elaborated under Rule 17 to read, ―analyse existing
law, policy and practice and assess compliance with United Nations Convention on the Rights of the
child‖. Section 13 of the CPCR Act imposes great responsibility on the NCPCR and SCPCRs to
monitor the implementation of laws related to children. Additionally the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act), 2012, Juvenile Justice (Care and Protection of
Children) Act, 2015, Right of Children to Free and Compulsory Education Act, 2009, expressly vest
the NCPCR and SCPCR with the responsibility of monitoring the implementation of these
legislations.
With the State acknowledging that even after 71 years of independence and a plethora of legislations
that nearly 170 million2 children continue to remain in situations of vulnerability and in need of
special attention by the State, this function gains greater significance. Monitoring the effective
implementation of laws becomes its paramount task and should be a process of systematically
tracking and assessing State performance against clear benchmarks and targets. It would require data
collection and analysis, involving not only official statistics, but also reports of field observation,
investigations, fact-finding delegations and draw upon studies and standards, both domestic and
international, relating to violations or progressive changes in the status of child rights. Pre-
determined qualitative and quantitative measures or indicators must be prepared so as to view the

1
2Acknowledged by the Government of India in its document on the Integrated Child Protection Scheme.
http://icds-wcd.nic.in/icpsmon/st_abouticps.aspx

66
State‘s performance against them to enable Commissions assess movement and whether targets set
at that time have been met. Monitoring government performance can however be difficult if
conditions are not conducive to undertaking such activities and access is restricted.
II. Obligation to Monitor Implementation of the POCSO Act, 2012
The CPCRs have been given a mammoth responsibility of monitoring the implementation of the
POCSO Act, a landmark legislation applicable in the whole of India except Jammu & Kashmir. It
addresses sexual offences against children and came into effect from 14 November 2012. It is a
comprehensive law which provides for the protection of children from offences of sexual assault,
sexual harassment and pornography, while safeguarding their interests at every stage of the judicial
process. For the very first time, abiding by constitutional obligations and India‘s commitment to the
UN Convention on the Rights of the Child, 1989 (UNCRC), a child-friendly jurisprudence has been
brought into the legislation to safeguard the interests of child victims at every stage of the judicial
process, both in the substantive and procedural aspects. Mechanisms have been introduced for
reporting, recording of evidence, investigation and speedy trial of offences through designated
Special Courts, appointment of Special Prosecutors etc. Further, it contains a number of provisions
detailing the specific role of several stakeholders to ensure its effective implementation.
Until the promulgation of the POCSO Act, there were several limitations in securing justice for
child victims of sexual assault as the provisions in the Indian Penal Code, 1860 (IPC), Immoral
Traffic (Prevention) Act, 1956(ITPA), and Juvenile Justice (Care and Protection of Children) Act
2000 and Amendment Act 2006 are grossly inadequate.

1. The IPC being gender specific, only allows a woman or a girl to file a complaint of rape or
sexual assault against a man. With regard to sexual offences against men and boys, the IPC
does not distinguish between consensual intercourse between adults and forced intercourse
―against the order of nature.‖ The IPC until 2013 only covered ‗rape‘ (defined as penetration
of the penis into the vagina) by a man of a woman, and did not deal with the spectrum of
sexual offenses. The IPC further fails to distinguish between women and children in terms
of children‘s need for special procedures during the course of the trial.
2. The Immoral Traffic Prevention Act, 1986 applies only to cases of child prostitution.
The Juvenile Justice (Care and Protection of Children) Act 2015 does not explicitly provide
penal provisions for sexual abuse of children.

2.1. Salient features of the POCSO Act

 The POCSO Act is gender neutral and covers children of both sexes who are victims and
survivors of sexual assault.
 The definition of sexual offences is broad and includes penetrative and non-penetrative
assault as well as sexual harassment and pornography. It deems sexual assault to be
‗aggravated‘ under certain circumstances such as when the abused child is mentally ill or
when the abuse is committed by a person in a position of trust or authority vis-a-vis the
child, like a family member, police officer, teacher, or doctor. Use of children for
pornography and trafficking of children for sexual purposes is also punishable.
 It prescribes stringent punishment graded as per the gravity of the offence, with a maximum
term of rigorous imprisonment for life, and fine.

67
 It provides for mandatory reporting of sexual offences and casts a legal duty upon a person
who has knowledge that a child has been sexually abused to report the offence.
 A complaint made with malicious intent is also punishable.
 It provides for the statement of the child to be recorded at a place where the child generally
resides, preferably by a lady officer not below the rank of sub-inspector and officer taking
the statement should not be in uniform. The child victim is not to be detained in the police
station at night.
 The investigating officer must ensure that the identity of the child is not disclosed and at no
point of time of the investigation the child should come in contact with the accused
 If the statement of the child is being recorded under Section 164 of the Code of Criminal
Procedure, 1973 (Cr.P.C), the Magistrate recording such statement shall record the statement
as spoken by the child. Wherever possible, statement to be recorded by audio-visual
electronic means.
 It gives the police the responsibility of protecting the child‘s interest during the investigative
process such as making arrangements for the care and protection of the child, obtaining
emergency medical treatment for the child and placing the child in a shelter home, should
the need arise. The police are also required under Section 19(6) to report the matter to the
attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so
that the CWC may then proceed where required to make further arrangements for the safety
and security of the child.
 Medical examination of the child is to cause as little distress as possible and to be carried out
in the presence of the parent or other person whom the child trusts, and in the case of a
female child, by a female doctor.
 It provides for Special Courts with the powers of a Court of Session under the Cr.P.C, 1973
in every district and in-camera trial in as child-friendly a manner as possible. It can take
cognizance of an offence against the child on receiving a complaint or on a police report
without the accused being committed to it and is also empowered to try offences under
Section 67-B of the Information Technology Act, 2000 where applicable.
 Cross-examination and re-examination of child by prosecution or defence, shall be first
communicated to the Special Court, which shall in turn put them to the child. A parent or
other trusted person may be present at the time of testifying. Reliance may be placed on the
testimony of a child witness. Assistance from an interpreter, special educator, or other
professional can be taken while giving evidence.
 A child is not to be called repeatedly to testify in court and may testify through video-link
rather than in the intimidating environs of a courtroom. Further, the child is not to be
exposed in any way to the accused at the time of recording of evidence. Video conferencing,
single visibility mirrors, curtains or such other devices may be used to record evidence of a
child.
 The burden of proof is on the accused to prove his innocence which is a shift from ordinary
law under The Indian Evidence Act, 1872.
 Time limit for recording the evidence of the child is 30 days from the day the Special Court
takes cognizance of the offence.
 Time period for completion of trial „as far as possible‟ is within 1 year from the date of taking
cognizance of the offence.

68
  It provides for interim compensation to be ordered by the Special Court for a child who has
been sexually abused for the child‘s medical treatment and rehabilitation. The Special Court
can award compensation in its final order as deemed appropriate and the compensation so
awarded is to be paid by the State Government from a specially established Victim‘s
Compensation Fund or such other scheme.
 It provides for assistance of legal counsel where the child or family is unable to afford a legal
counsel.
 The media is not to disclose identity of child unless permitted by the Special Court.
 Where an offence under POCSO is committed by a „child‟, i.e, a person below the age of 18
years, it shall be dealt with under the provisions of the Juvenile Justice (Care and Protection
of Children) Act, 2000 [Sec. 34(1)]

Under Section 29 of the Criminal Law Amendment Act, 2013 (CLAA), an amendment was brought
in the POCSO Act by insertion of a new Section 42A to make it more specific and confining the
references ―to any other law‖ to Sections 166A, 354A-354D, 370, 370A, 375, 376, 376A-376E, 509
of the IPC, 1860.
NCPCR has played a pivotal role in ensuring the inclusion of commonly occurring sexual offences
and providing a clear definition of each offence and its aggravated form to raise the chances of
successful prosecution. It contributed in no small measure towards the evolution of a child friendly
jurisprudence within the Act without compromising on the requirements of having a ‗fair trial‘. It
provided a comparative review of laws of a dozen countries and a study of several Supreme Court
judgments related to sexual violence to the Ministry of Women and Child Development and
garnered civil society support to strengthen its inputs. Despite these efforts, certain provisions in the
Act remained under debate during the entire process of making of this law.
2.2. Limitations in the POCSO Act
(a) Mandatory Reporting and Punishment for false information/complaint-
The Act vests responsibility/obligation on every person to report the commission of an offense
under the POCSO Act, when they have knowledge that such an offense has been committed, or
even when they have an apprehension that such an offense is likely to be committed under Section
19(1) of the POCSO Act. Counselors will face difficulty in this regard as failure to do so is
punishable with imprisonment for a term which may extend to six months and with fine under
Section 21(1).
This makes anyone close to the child open to the allegation that they had knowledge and failed to
report. Even strangers on the scene of crime are susceptible to be charged for not reporting. While
this high level of accountability has probably been included with the intention of making all
members of the public personally responsible for the safety of every child, this provision is highly
susceptible to misuse.
Under Section 22 of the Act, false complaint or false information is dealt with. Though it is intended
to be a check on any possible abuse of children, it is poorly conceived and leaves the informant very
vulnerable to subsequent persecution.

69
(b) Age of Consent
Section 2(d) of the POCSO Act covers any person below the age of 18 years in the definition of
―child‖. In cases where a minor girl is a wife and has been cohabitating with her husband, sexual
indulgence would amount to criminal breach ignoring the social reality that several ‗children‘ have
arranged marriages much before they turn 18. Such marriages are not void under Indian law; they
are legally valid and only voidable at the option of the minor.
Any sexual activity among minors or an adult and minor though mutually consented to qualifies to
be an offence under this Act and this understanding stems from a protectionist framework and that
child‘s consent is irrelevant, and ignores the sexual maturity of several ‗children‘, especially those
between the ages of 16 – 18 years in India. Though this point has been consistently opposed to by
the Courts of this country where consent has been a material consideration in deciding culpability
yet it is to be seen how far this provision in the law can be held back.
(c) Relationship between Special Court and Child Welfare Committee
Section 19(6), POCSO Act, requires a police officer to report a matter of child sexual assault to the
CWC as well as to the Special Court within 24 hours. There could be jurisdictional issues as a victim
child in need of care and protection would have both the CWC and the Special Court dealing with
him/her and unless there standard operating procedures are worked out, it can be burdensome for
the child victim.
(d) Appeal/ Revision
The Act is silent on provisions for appeal and revisions implying it would be regulated as per the
provisions of Criminal Procedure Code. There is a need for more clarity because for certain offences
the Court of Session itself has appellate and revisional jurisdiction.
(e) Financial allocation
Without allocation of financial resources to cover costs for the several provisions included, the
implementation of the Act will be an uphill task. There could be convergence with the Integrated
Child Protection Scheme (ICPS).
III. Monitoring Role of CPCRs
3.1. Monitoring Function under POCSO Act

While CPCRs monitoring role lies within the powers prescribed under Section13(1)(a) of the CPCR
Act and Rule 17 of the NCPCR Rules 2006 (corresponding State Rules), it has been expanded under
Section 44 (a), POCSO Act which states, ―they shall also monitor the implementation of the
provisions of this Act in such manner as may be prescribed‖.

Secondly Section 44(b) of the POCSO Act mandates that CPCRs while inquiring into matters
relating to an offence under the Act are to utilize the powers available to them under Section 14 of
the CPCR Act. If necessary, they can call for reports on any specific case falling within the
jurisdiction of a CWC. Post-inquiry, they can, under Section 15 of the CPCR Act, recommend to the
government to initiate proceedings for prosecution, release of interim relief, or make any other
70
recommendations to effectively redress the matter. They can also approach the High Court or
Supreme Court for orders, directions, or writs.

Thirdly Section 44 (c) elucidates that Children‘s Commissions ―shall also include, its activities under
this section, in the annual report referred to in section 16 of the Commissions for Protection of
Child Rights Act, 2005‖.
Keeping in mind the vulnerability of child victims and their immaturity in being able to report and
go through the criminal justice system, this Act imposes responsibilities on multiple stakeholders to
ease and facilitate access to justice including receiving timely compensation. Rule 6 of the POCSO
Act puts the onus on NCPCR and SCPCR to undertake the following:

6(1)(a) To monitor the designation of Special Courts by State Governments;

Section 28(1) requires the State Government to designate in consultation with the Chief
Justice of the High Court and by notification in the Official Gazette, a Court of Session to be a
Special Court for each district to try the offences under the Act. A Court of Session as notified as a
Children‘s Court under the Commission for Protection of Child Rights Act, 2005 or a Special Court
designated for similar purposes under any other law in force may also serve as a Special Court under
this section.
6(1)(b) To monitor the appointment of Public Prosecutors by State Governments;
Section 32(1) provides for the State Government to appoint a person having minimum of seven
years‘ experience as an advocate as Special Public Prosecutor for each Special Court for conducting
cases under the POCSO Act.
6(1)(c) To monitor the formulation of the guidelines described in section 39 of the Act by the State Governments, for
the use of non-governmental organizations, professionals and experts or persons having knowledge of psychology, social
work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist
the child, and to monitor the application of these guidelines;
Section 39 of the POCSO Act requires the State Government to frame a set of guidelines for the use
of professionals and agencies who can assist the child who is the victim of sexual abuse. This
includes non-governmental organizations, professionals and experts or persons trained in and
having knowledge of psychology, social work, physical health, mental health and child development.
6(1)(d) To monitor the designing and implementation of modules for training police personnel and other concerned
persons, including officers of the Central and State Governments, for the effective discharge of their functions under the
Act;
Section 19 of the Act lays down the procedure for reporting cases of child sexual abuse to the SJPUs
constituted under the JJ Act, 2000 (now replaced by JJ Act, 2015). Action by the State Governments
is required for the establishment of SJPUs in all cities and districts where these are yet to be
constituted.

71
6(1)(e) To monitor and support the Central Government and State Governments for the dissemination of information
relating to the provisions of the Act through media including the television, radio and print media at regular intervals,
so as to make the general public, children as well as their parents and guardians aware of the provisions of the Act.
Section 43 provides for the State Government to take measures for publicizing the provisions of this
Act and disseminating information as to its contents amongst children, their parents and the general
public.
6(2) The NCPCR or the SCPCR, as the case may be, may call for a report on any specific case of child sexual abuse
falling within the jurisdiction of a CWC.
SCPCRs may in a format so created seek information from CWCs about the number of complaints
registered and action taken in the cases. As and when required in specific cases, NCPCR may seek a
compilation of such information from SCPCRs for influencing policy and practice when required.
6(3) The NCPCR or the SCPCR, as the case may be, may collect information and data on its own or from the
relevant agencies regarding reported cases of sexual abuse and their disposal under the processes established under the
Act, including information on the following:-
(i) number and details of offences reported under the Act;
(ii )whether the procedures prescribed under the Act and rules were followed, including those regarding
timeframes;
(iii) details of arrangements for care and protection of victims of offences under this Act, including
arrangements for emergency medical care and medical examination; and,
(iv) details regarding assessment of the need for care and protection of a child by the concerned CWC in any
specific case.
6(4) The NCPCR or the SCPCR, as the case may be, may use the information so collected to assess the
implementation of the provisions of the Act. The report on monitoring of the Act shall be included in a separate
chapter in the Annual Report of the NCPCR or the SCPCR
3.2. Monitoring of complaints registered in CPCRs
To commence with its monitoring responsibility, a CPCR could begin with assessing information
and data on complaints pending in their own complaints management system which may have
reached them through various sources such as the print media and newspapers; NGOs or through
complainants directly approaching them. For each case a Fact Sheet, details of action taken and a
response sheet should be prepared and followed up to ensure that FIRs are registered and if not, this
must be examined. Follow-up should continue with regular updates called for from authorities
/organization till the conclusion of the trial.
It is necessary to undertake a monthly or quarterly review of pending cases to expedite disposal,
analyse trends, and make recommendations to concerned authorities for compliance of
shortcomings. Complaints could also be referred to the National or State Legal Services Authority as
maybe the case for providing legal or para-legal aid to the victim and family as also assist with release
of victim compensation. Where an SCPCR has been established, complaints which fall within the
purview of the POCSO Act needs be transferred by the NCPCR to the respective SCPCR for
72
disposal as jurisdictional proximity would facilitate more effective management and disposal of the
complaint. Where a complaint covers two or more States/UTs, NCPCR could continue to handle it
with support of the respective SCPCRs.
During the author‘s tenure at the NCPCR, SCPCRs reported of these recurring complaint themes:
refusal of police to file FIR or delay in filing FIR; delay in taking evidence (Sec.164 Indian Evidence
Act) and in filing charge sheet; delay in the case going for trial; repeated interrogation of child victim
by different stakeholders; threat and intimidation by offender; police not reporting cases to CWCs
and consequently no support services provided to child victim in terms of medical care, psycho-
social support etc.; child victim and family turning hostile and failure to provide for victim
compensation causing immeasurable financial strain to victim and family and consequently family
losing interest in pursuing the case.

3.3. Monitoring of Stakeholders

To facilitate the monitoring process, in 2013 the NCPCR brought out Monitoring Guidelines3for the
Police, Special Courts, Special Prosecutors, Child Welfare Committees, Support Persons and Health
Institutions containing questions for monitoring the fulfilment of roles of the stakeholders by
NCPCR or SCPCR under the Act. Indicators were suggested to assess responses which would be
help in compiling reports annual reporting under section 44 (3) of the POCSO Act.
Such monitoring reports prepared by CPCRs would enable them gauge shortfalls in establishment of
structures such as Special Courts and Special Public Prosecutors and the performance of individual
stakeholders such as the Police, CWC and Support Persons and bring the same to the attention of
their respective higher authorities. By seeking time bound compliance, speedy disposal of cases,
necessary support and timely release of victim compensation could be ensured. However, how far
the judiciary will comply with the recommendations of the CPCRs can only be tested over time.

3.4. Monitoring Structures and Processes

A wide array of programmatic interventions have been undertaken by CPCRs to take forward their
monitoring role. NCPCR set up a separate POCSO Desk in late 2013 and proposed adding adequate
number of personnel to undertake national level reporting to facilitate knowledge sharing with
SCPCRs. It also created IEC material for advocacy purposes as has Rajasthan, Karnataka, Odisha,
Maharashtra and Kerala SCPCRs who have created such material in the vernacular for wide
circulation in their respective States and have taken the lead in organizing orientation programmes in
collaboration with their various stakeholders.
Some suggestions which CPCRs may consider to make their monitoring role even more effective
are:

 Administering questionnaires to the various stakeholders and the State corresponding with
the duties and statutory obligations of the agencies such as - the number of Special Courts
established; number of Special Prosecutors appointed; number of cases of child sexual abuse
reported; number of cases intimated to Child Welfare Committees; number of Support

3 Available at http://www.ncpcr.gov.in/index1.php?lang=1&level=0&linkid=14&lid=261Undertaken
in collaboration with Lawyers Collective Women‘s Rights Initiative as a technical partner with support from
UNICEF
73
 Persons appointed etc. all of which could be collated and analysed to project the
implementation status of the POCSO Act. This could be reported in a monthly POCSO
Monitoring Bulletin.
 Undertaking review meetings with State/UT governments and field visits to gauge measures
taken to implement the POCSO Act. E-conferences with State/Union Territories
governments could also be initiated for more frequent monitoring. Consultations with civil
society groups at the National, State and District level would enable Children‘s Commissions
receive ground level inputs on the implementation of Act and lead to making appropriate
interventions.
 Collaborating with the State and NGO groups and undertaking mass awareness and advocacy
campaign through the audio-video and print media to safeguard children‘s interests and also
ensure speedy response, support and compensation to child victims.
 Setting up a multi-stakeholder Advisory Committee on POCSO Act and JJ Act, 2015
comprising government functionaries, UN Bodies, experts and NGOs and in the case of
NCPCR including at least four SCPCR chairpersons on rotation basis to create a common
platform, strengthen cooperation among all stakeholders, and avoid unnecessary duplication
and overlapping of tasks. The Advisory Committee could meet regularly and come up with
recommendations for the effective monitoring of the POCSO Act.
 NCPCR could offer technical support to SCPCRs through the powerful tool of information
and communication technology (ICT) to complement the face-to-face contact. Data and
information pertaining to cases of sexual abuse at the levels of the State/District /Block
could be collected, stored, retrieved and analyzed for generation of monthly thematic
monitoring reports and crime patterns against children which has been referred to
previously. Other areas of collaboration could include building programme components such
as setting up a resource centre on good practices, case studies, research papers etc.
 Collaborating with the Home Affairs Ministry and Home Department as the case may be, to
fast track sensitization programmes for Child Welfare Police Officers posted to police
stations and district based SJPUs on their role and function under POCSO Act as the police
fall far short of knowledge, skills and numbers in executing their role and responsibilities as
mandated under the POCSO Act.

Research and Data Analysis

 Sharing analytical reports on the impact of measures taken to implement the Act through a
quarterly POCSO Bulletin among all stakeholders.
 Reaching out to the State Legal Services Authorities to garner their support and cooperation
for providing legal aid and release of victim of compensation in a timely manner.
 Analysing access of victims to compensation schemes while highlighting the lacunae in
providing immediate relief (soon after filing FIR) to child victims of abuse.
 Undertaking research on the implementation of the Act to influence policy and seek
amendments where found necessary.
 Tracking the compliance of the recommendations made to enhance protection measures for
children particularly child victims.

IV. Conclusion: Strengthening SCPCRs Monitoring Role

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CPCRs are funded by the State but are not part of the executive, legislative or judicial branches.
They have no power to punish but their very mandate allows them to keep a check on government
to enhance its accountability. Through cooperative interventions, using the powers they have and
the sphere of influence they command, they can certainly raise the bar on the protection rights of
children.
However, the responsibility of monitoring the implementation of the POCSO Act thrust on
NCPCR and SCPCRs seem visibly far beyond what the existing system can support. It calls for
domain expertise among the Chairpersons and Members which regrettably is lacking as most
appointments are politically influenced. Many States do not have a fully functional SCPCR and in
fact even NCPCR was without a Chairperson and Members for a lengthy period of time.
To overcome these hurdles, there is a need for strengthening the functioning of CPCRs with human
and financial resources; bringing in domain expertise and building a collaborative network with all
the stakeholders. NCPCR could be leveraged as a mentor to other SCPCRs considering that
majority of the SCPCRs are in the establishment or early stages of operation and require much
guidance for the better fulfilment of their commitments. Assistance could be provided for setting up
State/UT POCSO Act monitoring units through knowledge sharing including that of best practices.
NCPCR could consolidate the work regionally and nationally by creating networks of SCPCRs and
credible civil society organizations and groups and investing in capacity-building. Jointly filing
petitions in various Courts for directions to correct glitches in implementing the POCSO Act could
also be a possibility. Consultations with judicial and law enforcement officers, medical professionals
and other public officials could enhance appropriate responses to violence against children and aid
in developing required guidelines and protocols. Finally, building partnerships jointly between
SCPCRs and the Indian vibrant media could contribute to spreading the intent and provisions in the
POCSO Act far and wide.
The implementation of the POCSO Act is a vigorous and dynamic process laden with mandatory
responsibilities of many stakeholders particularly since competent persons with the child rights
perspective are in short supply. Mobilising a strong lobby for building capacities across the board at
all levels of administration is the need of the day. Sustained commitment from each of the
stakeholders to play their part with close monitoring by NCPCR and SCPCRs at the national and
State /UT level as the case, can contribute positively to preventing heinous crimes against children
and wiping many a tear from the eyes of child victims of sexual abuse.

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 5. Reflections about the National Commission for Protection of Child Rights

By Dr. Shantha Sinha1

1. Introduction

In the last decade, India has witnessed remarkable growth and emerged as a country to be reckoned
in the global economy. At the same time, it has seen urbanization that is both unplanned and
exploitative, corruption that has debilitated the economy, governance that has been weak and ill-
implemented and a social sector that has been neglected by those who have an obligation to provide
services to it. For those in the margins of the economy, this has meant more economic uncertainty
and vulnerability to the whims of the market. This instability often impinges on the human rights of
those in jeopardy, and affecting the lives of children most. Their survival and protection has become
precarious and ridden with risk. Having little or no access to food, water, health care and basic
amenities, they have suffered the most. Malnutrition cause by hunger and starvation is common.
Large numbers of children have dropped out of school, affecting the quality and quantity of their
education. This is especially true of children who are already from vulnerable backgrounds: those
who live in urban slums or areas of civil unrest or whose parents are landless or migrant laborers.
Having no documentation detailing their age, address or school progress, children are unable to join
schools in the areas that they have moved to. Older children are often left to fend for themselves,
with some of them caught in a web of illegal activities and even in armed conflict, having none of
the options that may be available through literacy and education. Several join networks engaging in
trafficking children for labor and sex work. Hundreds and thousands of children are thus affected.
71 years have passed since the much eulogized Constitution of India was adopted, yet the situation
of children remains grim.
It is, however, heartening that there has been a fundamental shift in the discourse regarding children.
The focus has moved from their welfare to the protection of their rights. In this perspective, the
State bears a duty to children who are entitled to their rights and are not beneficiaries. Further it is
the State‘s obligation to provide services to all children equally and without discrimination. Laws and
policies for children have been drafted in this frame (eg. the ‗Juvenile Justice (Care and Protection of
Children) Act,2015, the ‗Right of Children to Free and Compulsory Education Act, 2009; The Food
Security Act, 2013 and children‘s rights to food through the various directives issued by the Supreme
Court in the case of PUCL v. Union of India.2
It is precisely in the above context that independent human rights institutions (IHRI) and or
Commissions, in this instance the National Commission for Protection of Human Rights (NCPCR),
established under the Commissions for Protection of Child Rights Act, 2005 (CPCR Act), have a
huge role to play. The challenge before the Commission is to transcend the limitations posed by the
polity and promote systems that advance and are responsive to the rights of children. It is in making
all institutions fit for children, where childhood is respected and child rights are protected. It is in
making the governance structure more effective and stronger, in spite of the environment in which
it operates. It is in strengthening the State‘s commitment to protect children‘s rights, as there can be

1 Shantha Sinha is the former Chairperson National Commission for Protection of Child Rights, former
Professor, University of Hyderabad and founder secretary of M. Venkatarangaiya Foundation.
2 (2007) 12 SCC 135.

76
no substitute for the State has the primary obligation towards children and the fulfillment of all their
entitlements.

This Chapter provides a brief introduction to the International principles and obligations that
govern independent human rights institutions such as the NCPCR; an introduction to the NCPCR -
its powers and functions; anecdotal information about interventions undertaken by the first NCPCR
in India from the year 2007 - 2004; a note on the NCPCR and its engagement with Government;
key challenges faced by the NCPCR during this tenure, and some recommendations for the way
forward in the concluding section.

II. International Principles and Commitments Governing IHRI

The Paris Principles of 1993 lay down guidelines for any national institution which has as its
purpose, the promotion and protection of human rights. The Principles, which were adopted by the
UN General Assembly emphasize that any national human rights institution (NHRI) must be
independent and plural in its composition. The five Principles are:
1) That the institution shall monitor any situation of violation of human rights which it decides
to take up;
2) It will 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) It will relate to regional and international organizations;
4) It will have a mandate to educate and inform in the field of human rights; and
5) It will have a quasi-judicial competence.
Although the Paris Principles are not legally binding, compliance to them is the central requirement
of the accreditation process that regulates NHRI access to the UN Human Rights Council and other
bodies. This is a global peer review system among NHRIs that gives legitimacy to the State in
relation to its performance on issues relating to human rights.
In 1992, the Indian Parliament ratified The UN Convention on Child Rights, 1989, (UNCRC),
making it obligatory for India to comply with the standards enshrined in this international treaty.
Article 4 of the UNCRC states that, ‗Parties shall undertake all appropriate legislative, administrative
and other measures for the implementation of the rights recognized in the present Convention.‘ In
the year 2002, the UN Committee on the Rights of the Child3, in its General Comment No. 2,
recommended that ‗every State needs an independent human rights institution with responsibility for
promoting and protecting children's rights‘ and such an institution ‗should be able, independently
and effectively, to monitor, promote and protect children's rights. It is essential that promotion and
protection of children's rights is "mainstreamed" and that all human rights institutions existing in a

3UN Committee on the Rights of the Child referred to as the ‗Committee‘ has been set up to monitor the
compliance of the UNCRC. Once a year, the Committee submits a report to the Third Committee of the
United Nations General Assembly which also hears a statement from the CRC Chair, and the Assembly
adopts a Resolution on the Rights of the Child. Governments of countries that have ratified the Convention
are required to report to, and appear before, the Committee periodically to be examined on their progress
with regards to the advancement of the implementation of the Convention and the status of child rights in
their country.

77
country work closely together to this end.‘ This has been reiterated in its General Comment No. 5
(2003)4.
The NCPCR is therefore required to adhere not only to the Constitution and the CPCR Act, 2005
under which it has been established, by virtue of it being an independent human rights institution, it
has the duty to persuade the Indian State to move towards greater compliance with the UNCRC,
and the Paris Principles.

III. National Commission for Protection of Child Rights (NCPCR)

The Commission for Protection of Child Rights Act, 2005, was enacted by Parliament in December
2005. The Preamble of the CPCR Act, states that it is an ‗Act to provide for the constitution of a
National Commission and State Commissions for Protection of Child Rights and Children's Courts
for providing speedy trial of offences against children or of violation of child rights and for matters
connected therewith or incidental thereto‘. The Act gave the NCPCR a mandate to ensure that all
laws, policies, programs, institutions and administrative mechanisms of the Indian State are in
consonance with child rights as enshrined in the Constitution of India and the UNCRC.5 The
Commission‘s jurisdiction extends to the entire country except the State of Jammu and Kashmir.

3.1. Rights based approach

All the functions taken up by the Commission are to be informed by a perspective that is based on
the protection of the ‗rights of a child‘. This entails giving equal importance to every right the child
has, as each right the child enjoys is reinforced and is interdependent of the others. Therefore there
can be no doubt that any one right of the child is less or more important than any other. Similarly,
the age of the child does not affect the importance of intervention. Thus policies affecting all stages
in a child‘s growth and development assume equal significance. Inherent to a rights‘ based
perspective, is an adherence of the State to the principles of universality, inclusiveness, equality and
non-discrimination.

Further, children have a right to be embedded in their culture and environment, and to feel
empowered in that culture and environment. The diversity and plurality of their cosmos must be
respected. Yet, when there is a conflict between the child‘s culture and the child‘s rights, the rights
usually take lesser priority. For example, the culture of child marriage, employment of children to
maintain tradition. However, the rights of the child must take precedence over culture and tradition
so as to give primacy to children‘s rights. To allow the culture into which a child has been born
(over which he/she has no control), is to admit that there are circumstances which can affect
impinge on the child‘s ability to enjoy his/her rights. The rights of a child must therefore take
precedence over the pressures imposed by culture and tradition. It is also important to set up and
4Source: UNICEF Office of Research ‗Championing Children‘s Rights: A global study of independent human
rights institutions for children – Summary Report, 2012
http://www.unicef-irc.org/publications/pdf/championing2_eng.pdf

5 Under the Commissions For Protection Of Child Right Act, 2005 "child rights" includes the children's
rights adopted in the United Nations convention on the Rights of the Child on the 20th November, 1989 and
ratified by the Government of India on the 11th December, 1992;
http://www.wcd.nic.in/sites/default/files/TheGazetteofIndia.pdf
78
maintain processes to listen to the voices of children. A child‘s agency is indispensable for the child‘s
rights to be effectively protected. Taking uncompromising stands in favor of children and their
rights is the first step that the NCPCR should take towards the process of listening to children,
ensuring they get their entitlements and recommending policy and legal reforms in their support.

3.2. Functions and Powers of the NCPCR

Section 13 of the CPCR Act, 2005, and Rule 17 of the National Commission for Protection of Child
Rights Rules, 2006 deal with the functions of the NCPCR. These functions could be broadly
clustered into the following four functions:

i) Examine and review laws, programs and policies and make appropriate recommendations
to ensure that child‘s rights are protected;
ii) Conduct inquiry into specific cases of violation of child rights which includes taking suo
moto notice on matters related to violation of child rights, non-implementation of laws, non-
compliance of policy decisions, inspection of institutions for children run either by Central
or State governments or even a private organization and recommend appropriate action;
iii) Take up such cases of violation of child rights that are an outcome of terrorism,
communal violence, natural disaster and all other forms of violence and recommend
appropriate measures; and
iv) Finally promote research, build capacities and create awareness about child rights, etc.

One of the main functions of the NCPCR therefore, is to monitor all aspects of children‘s rights
through all the layers of officialdom from the Central Government and State Governments, District
and Block levels to that of the local bodies and to review laws and policies periodically to ascertain
that children‘s rights are protected.

The NCPCR has been vested with the powers of a civil court,6 to the extent that it can summon and
enforce the attendance of any persons, examine them on oath, seek the production of both
documents and witnesses, receive evidence on affidavits and so on. Once this process is complete,
the NCPCR can forward it findings and refer the case to a Magistrate. The Magistrate to whom such
a case is forwarded under Section 14(2), CPCR Act, ―shall proceed to hear the complaint against the
accused as if the case has been forwarded to him under section 346 of the Code of Criminal
Procedure, 1973 (2 of 1974)‖. Thus, the NCPCR does not have the authority to issue orders or
directions like a court of law. This does dilute its authority and encourage the perception that the
NCPCR like other Commissions in the country is ―without teeth‖.

After the conduct of inquiry, in terms of action, the Commission can recommend to the
government that it should initiate proceedings or any other action as it deems fit; approach the
Supreme Court or a High Court for directions, orders or writs; and recommend to the government
to grant interim relief to the victim.7 It is for the Central or State government to lay before the
Parliament the Annual Report of the Commission and along with it, a memorandum of Action
Taken Reports on the recommendations made by the Commission.8

6 CPCR Act, 2005, Section 14(1).

7 CPCR Act, 2005, Section 15.
8 CPCR Act, 2005, Section 16(2).

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3.3 A Summary of Key Interventions from 2007 to 2013 by the NCPCR9
Given its mandate, the NCPCR during 2007-2013 evolved and adopted several strategies and
methodologies with a view to be an effective human rights institution responsive to the concerns of
children. These included efforts to reach out to as many children as possible from all sectors and
situations on the one hand; and linking their voices with their trials and tribulations to the highest
echelons of power in the system on the other. During the first seven years of its operation, the
NCPCR had made its presence felt in almost every State in the country, reaching out to some of the
remotest villages during State visits by the Chairperson and its Members. This was significant, as
senior State and district officials, (with whom the community often has very little interface), would
also accompany the NCPCR, hear firsthand the problems and challenges of the people and then be
compelled to take the action required. In many of these areas, it was the first time a senior
government official had ever been seen by the community as in the instance of NCPCR
Chairpersons and its members visit to the Maoist areas in Dhanora, Gadchiroli district in
Maharashtra, Sukma in Chhattisgarh, interior villages of Jamui, Rohtas and East Champaran in
Bihar.
The Commission‘s process of holding public hearings became the preferred mechanism to hear and
reach out to a larger cross sections of children and the wider community in different parts of the
country. The process provided a unique opportunity to the community to table their grievances
directly before State and District level officers and demand a timely response to redress them. Very
often, these hearings also demonstrated the constraints and challenges faced by the District or State
level officers, which prevented them from delivering solutions. Since the NCPCR also ensured that
these proceedings were conducted in a manner that they would not in any manner undermine the
functionaries of public institutions, adequate responses to many issues were achieved.

The NCPCR had also evolved methods to engage in outreach and deepen its presence by
nominating State Representatives who were to act as the ‗eyes and ears‘ of the Commission. They
facilitated its inquiries and acted as a bridge between civil society and government in their respective
States. The nominees vested with this profile worked to extend support to the NCPCR. Based on
the work done by these Representatives, the NCPCR had also developed a template for social audits
to monitor implementation of the RTE Act, 2009, partnering with select NGOs in 10 states.
NCPCR issued communications in the form of letters, guidelines and recommendations to the
government. Based on implementation gaps and/ or violations observed, on several occasions,
specific guidelines were issued as guidelines for immediate government action. These guidelines are
often in response to the Commission‘s independent assessment of growing complaints and media
reports related to a particular issue that affects the liberty and rights of children in a particular State
context.
The NCPCR also received complaints and evolved a system to register complaints, issue letters
seeking reports, and follow up with reminders when there is no response from the concerned
authorities. Depending upon the gravity of the issue, the NCPCR also constituted teams to enquire
into the violation of rights and recommends action. When there was no Action Taken Report from
the government in spite of reminders, the officials were summoned as a last resort.

9 See the NCPCR website www.ncpcr.gov.in for details of all the activities of the NCPCR during this period.
80
The strength of the NCPCR lay in its convening power and its capacity to engage with multiplicity
of Ministries and conduct a policy dialogue with them on specific issues relating to children‘ rights.
Such an approach is necessitated by the sheer number of Ministries that have roles and
responsibilities that affect the rights and welfare of children. The Ministries of Women and Child
Development, Labour, Education, Social Justice, Tribal Welfare, Rural Development, Panchayat Raj,
Planning, and Home, all have parts to play in ensuring the well-being of children. The NCPCR held
many consultations with each Ministry and provided a platform for the required convergence and
coordination to discuss thematic considerations on the status of child rights.

As mandated under the Act, the NCPCR reviewed the national legal framework and policies for
children and the status of their implementation, in order to assess their effectiveness and impact,
from a child rights perspective, while also trying to understand the systemic root causes, challenges
faced and possible solutions to them. These reviews were often preceded by consultations at the
regional and national levels with both civil society and State functionaries. The Commission
conducted meetings with officials, members of civil society, and academicians in order to understand
the nuances of implementation of child rights, the challenges and critical bottlenecks that they faced
and also to learn from successful interventions. It constituted Working Groups consisting of a
number of experts from an array of different fields to gather detailed knowledge of the issues under
consideration that would inform the Commission‘s policy note on the subject. Thus Working
Groups were constituted, for example, on child labour, juvenile justice, protection of children
against violence and corporal punishment in schools, children‘s participation in TV and Reality
Shows, children living on railway platforms, substance abuse and so on. Many of the NCPCR‘s
recommendations, informed by the studies undertaken by these Working Groups were incorporated
by the Government.10

Special Cells/Divisions were set up in the NCPCR to focus on the mandate given to the NCPCR
for monitoring the implementation of specific Acts. Thus, the Right to Education Division (RTE
Division) was set up in 2010, to monitor the implementation of the Right of Children to Free and
Compulsory Education Act 2009. The POCSO Cell was then set up to monitor the implementation
of the Protection of Children from Sexual Offences Act, 2012. In addition, a North-East Cell was
set up to focus attention on the specific challenges confronted by children in the States of Assam,
Arunachal Pradesh, Nagaland, Manipur, Meghalaya, Tripura and Mizoram.

The NCPCR intervened on several thematic issues using the above methodologies. Some of the
issues that were dealt with in a systematic fashion, weee: (i) improvements in the juvenile justice
system (ii) child health and nutrition; (iii) child labour (iv) child trafficking; (v) child abuse and sexual
offences against children (vi) corporal punishment;(viii) monitoring of child‘s right to education and
other issues-social audits of status of RTE in 12 states, Corporal Punishment guidelines; and(vii)
children affected by conflict/civil unrest. The NCPCR issued a policy document on children in and
or impacted/ displaced by civil unrest and Standard Operating Procedures (SOPs) on apprehension,
arrest, and encounter deaths of children - both of which were submitted to the Ministries of Home
Affairs and Defense. This is important as neither Ministry has anything specific for children in this
context. Inter-State consultations were even organized to discuss issues of migrant children, which

10 For the Reports and Recommendations of Working Groups see

http://ncpcr.gov.in/index1.php?lang=1&level=0&linkid=14&lid=261
81
yielded good outcomes. See Annexure 1 to this Chapter for a list of the NCPCR Reports and
Recommendations during this period.

To address the needs of children in areas with civil unrest or displaced as a result of the same, the
NCPCR started a three years pilot programme, viz: ‗Bal Bandhu‟ in five States of Andhra Pradesh,
Assam, Chhattisgarh, Bihar and Maharashtra, with support from the Prime Minister‘s Relief Fund.
Likewise, a pilot programme for protection of child rights was launched in the State of Jammu and
Kashmir, in December 2011, in Sumbal and Rajwar Educational Zones of Bandipore and Kupwara
districts, respectively. The pilot program revealed that despite the pressure of violence and security
concerns, it was possible to shift the focus to children and their needs, and walk a neutral path to
ensure the same was addressed. The Bal Bandhu Scheme was unique in the way that it accessed
remote villages and provided the necessary links between the administration and the community in
naxal areas. The 12th Five Year Plan also included a reference to this pilot programme in its
recommendations for the state governments to take it to a larger scale

By way of further interventions, the Commission periodically sent its views to the Parliamentary
Standing Committee on pending Bills relevant to children and also made oral depositions before
such Committees.

The NCPCR intervened in or was included as an advisory party in various court matters pertaining
to child trafficking, missing children, child labour, juvenile justice, corporal punishment, etc. It was
asked by the Supreme Court and various High Courts around the country to provide its opinion and
recommendations on a series of issues relating to exploitation of children and the need to focus on
realizing their rights. Some of the issues that the Commission was called upon to comment on are
child labour, child trafficking, corporal punishment, children in areas of civil unrest, the juvenile
justice system and the poor implementation of existing laws and schemes for children See Annexure
2 to this chapter for a list of some of the important court matters in which the NCPCR played a
role. On the whole, the NCPCR‘s role was to complement, strengthen and monitor the performance
of existing institutions to ensure that children realize their rights. In this context, using a non-
adversarial approach and at times the NCPCR‘s moral authority was far more effective than using
the powers vested in it as a quasi-judicial authority. The NCPCR used its authority as a civil court in
conducting an inquiry and recommending strictures only as a last resort, after exhausting all other
methods of negotiating and pressuring the State government and its officials to deliver.

3.4. Relationship between the NCPCR and Government

Ideally, the working relationship between the Ministry of Women and Child Development,
Government of India, (as the nodal Ministry) and the NCPCR should be one based on respect for
the independence and autonomy of the NCPCR as a national human rights institution. Being
instruments of the State, the distinct and separate roles of the concerned Ministry and the NCPCR
should be understood and respected, to best serve the interests of children. An institutional
mechanism where the Ministry keeps the NCPCR informed while drafting a law or a policy, seeks its
independent advice and gives due regard to its studied constructive and yet critical
recommendations, would go a long way in fostering children‘s rights.

In practice, however, there was a tension between the Ministry and the NCPCR, one that caused
barriers in it being able to fulfill the objectives of the CPCR Act, or the functions vested in it under
82
Section 13 of the CPCR Act, and Rule 17 of the CPCR Rules. Unfortunately, the Ministry controls
the funding that is to be made available to the NCPCR as it approves its annual budget. Indeed, the
budget line of the Ministry to the NCPCR is deemed as a ‗Grant‘ on par with the rules and
procedures that govern allocation of grants to civil society. The Member-Secretary who is to provide
administrative support to the Commission is accountable to both the Ministry and the Commission,
which is contrary to the spirit of the CPCR Act and the Paris Principles.

Even within the NCPCR there were gross inadequacies. The NCPCR was under staffed, and even
what little staff it had was all on deputation from various departments of the government. Most of
the staff owed little or no loyalty to the Commission, nor did they demonstrate adequate sensitivity
to the plight children faced in the country, as they did not recognize their role as facilitators to
support child rights. Instead of a creative interpretation of rules and procedures established by the
government, there were instances in which they blocked the NCPCR in reaching out to every last
child. Given that the NCPCR is a statutory national human rights institution specifically established
to promote, protect and monitor the rights of children, it is of vital importance that persons with
domain knowledge and relevant experience are chosen as its Chairperson and Members and as
support staff.

The NCPCR was seldom consulted or even told about what the government was planning to do
with regard to policies, programs or draft bills. There was a remarkable degree of secrecy, and most
of the information the Commission received in this regard was hearsay. Given that the role of the
NCPCR is to be an independent watchdog of the government to keep the government accountable,
some amount of friction is unavoidable. This is a structural compulsion. It is important for the
Ministry to understand and acknowledge that the Commission is mandated to ensure the effective
protection of child rights and address of violations/crimes against children, a common goal shared
by the Ministry for children, and that it is meant to be an autonomous independent body, not a body
under it. A mature working relationship would be one in which the Commission exercises persuasive
power to guide and propel the Ministry towards greater compliance with its legal obligations and the
Ministry in turn respects and supports the Commission as a useful ally, given its own obligations
under the Constitution, the UNCRC and domestic law to enable children to enjoy their rights.

Although under the Act, recommendations made by the Commission are to be taken seriously by
the government at the Union as well as the State level, in practice, there were occasions when the
State Governments did not respond to the Commission‘s recommendations. When, after repeated
reminders there were no adequate responses, the NCPCR used its powers to summon the officials
of the State governments and followed up on action thereafter. Yet, the process of remedying the
grievances faced by children was slow, and required patience and perseverance.

In comparison, however, the Central Government was found wanting, with no responses or
comments on the several policy notes and recommendations on policies and legislations made by
the Commission. Under such circumstances, the Commission looked to the Parliament to review the
response of the Ministry to the various recommendations made. However, the recommendations
were often left unattended by the very Parliament responsible for its creation.

IV Challenges faced by NCPCR

83
Reflecting back on the key interventions undertaken by the NCPCR during 2017-2013, it would not
be erroneous to state that the system is so oriented towards addressing issues relating to adults and
from the perspective of adults, that it requires a process of ―unlearning‖ to address children‘s issues
from a child right‘s perspective with the immediacy and urgency that it deserves.

4.1. Attitudinal Issues

The first set of challenges that act as barriers enabling formulation of legislations, policies and
programs towards children enjoying their rights, is in the realm of attitudes and dominant views
about children and the poor, at the level of both the State and civil society. Thus laws in favor of
children are not passed because they are not ‗practical‘. For example, it was felt impractical to
include children less than 6 years of age as well those in the 14-18 years age group under the RTE
Act, 2009. Similarly, it was felt impractical to include all forms of child labour up to18 years of age
under the Child Labour (Prohibition and Regulation) Act, 1986 or for that matter. The issue of
practicality is viewed from the point of view of the system and its limitations to implement the law
and not of the vulnerable child who is being exploited and enslaved.

It is also argued that poverty is the cause for increasing vulnerabilities of children, implying that as
long as poverty continues children‘s rights cannot be protected. The ‗poverty argument‘ does not
prioritize the well- being of children or their rights. It only lays down a rationale for postponing the
State‘s obligation towards children and transfers the responsibility to poor parents. From a child
rights perspective, children are individuals in their own right and securing of their rights cannot be
linked to their conditions of poverty. The State has to provide for all children, as they have a
Constitutional right to life with dignity. There cannot be any justification to compromise on this
fundamental principle.

The ‗poverty argument‘ is also linked to a compelling view that the poor don‘t care about their
children. Some also feel that they ought to be punished for neglecting their children. This is based
on the assumption that quality services and institutions are in place and that it is the parents who
refuse to access such institutions, as they would rather exploit their children. In most circles, there is
also a dominant view that the poor have large families and India‘s population is the problem, which
has to be solved first; and that tradition and culture cannot change overnight.

Finally, a pervasive sense of cynicism weighs against the implementation of laws protecting children.
A conviction exists that corrupt functionaries will not perform in a manner that ensures the
fulfillment of the objectives of such beneficial legislation, which will result in these laws remaining
only on paper, unimplemented. Indeed, this argument serves only to maintain the status quo and
delegitimize existing institutions. In a developing country such as India, legislation to guarantee
human rights operate as tools for the empowerment and the assertion of the vulnerable. They stand
as a benchmark to guide and direct civil society on matters relating to social justice and equality, and
are expressions of the will of the State. Somehow, as far as children are concerned the State has
demonstrated a lack of sufficient will to implement existing laws for children, compromising when it
comes to prioritizing matters concerning children, and abdicating its parens patriae role often being in
sync with prevalent social norms.

In such a scenario, it remains a challenge for the CPCRs in India to insist on the State‘s obligation
towards children and mitigate all barriers, including those embedded in the above arguments. To
84
adopt categorical positions and a child rights based approach, facilitating debates to help win over all
stakeholders-in the system as well as civil society, on the side of vulnerable and often voiceless
children is a daunting task. Translating the vision of the child embodied in the Constitution, various
legislations, policies and programs, and the legally binding UNCRC, into social and political reality is
never straightforward. These are deeply contested terrains. Putting children and their rights first in
the list of State priorities is therefore a moral as well as a legal commitment.

4.2. Universal Rights versus Targeted Approach

The next set of challenges faced by the NCPCR during 2007-2013 was with regard to providing
services in an equitable yet universal manner. Child rights remain low on the State‘s agenda,
competing with budgetary priorities and blocked by political and institutional inertia. Considering
the vastness of the problem at hand and the necessity to show tangible results in the name of child
protection, governments prefer to have a targeted approach. This is an essentially a paternalist and
welfare approach focusing attention on ‗poorest of the poor‘ and ‗hardest to reach children‘, ‗most
vulnerable and at risk children‘ and so on, without addressing the core structural issue, which is to
prevent children from falling into such scenarios in the first place. Governments should recognize
that while child protection is important, it has to be embedded in the framework of universal
coverage and child rights.

The NCPCR recognized that while there were gainful achievements in some areas in the country
during that period, - with some states, districts and blocks doing better than the rest on the child
development indicators of health, nutrition, education and other entitlements - these continued to
be abysmally poor in some pockets, for certain classes of children and more disadvantaged
communities. The challenge of the Commission lay in responding to the issues of violation of child
rights in the context in which the Commission operates. Commissions therefore must take into
account the nuances of institutional and policy frameworks, as well as the political environment of
each State.. At the same time it must stay focused on the protection of the child, her entitlements
and her rights, irrespective of the political or other forces at play in each of the States, particularly
given its mandate and national status.
4.3. Systemic Constraints
The absence of effective system to ensure accountability and mechanisms to redress grievances
within government departments increases the load on Commissions. It is a challenging task for the
NCPCR to monitor the implementation of various laws, programs and schemes. This is especially so
with India having the largest network of State run public institutions in the world. Adding to that is
the fact that India‘s child population of 420 million in the age group 0f 0-18 years is not
inconsiderable. India has the largest immunization and nutrition program with 13.42 lakh
anganwadi centers covering over 8.4 crore children out of 16.45 crore children below 6 years.11 It
addresses children from the most vulnerable communities such as the Scheduled Castes and
Scheduled Tribes through affirmative action as mandated by the Constitution of India and provides
a range of targeted initiatives and infrastructure such as scholarships, residential schools, and hostel
facilities.

11Niti Aayog, A Quick Evaluation Study of Anganwadis under ICDS, (June 2015), pp.1-2,
http://niti.gov.in/writereaddata/files/document_publication/report-awc.pdf
85
At times, it became impossible for the NCPCR to attend to each and every case of violation of child
rights- as there were so many of them. The NCPCR was compelled to be selective and prioritize
those cases which revealed broader, systemic problems and had the potential to inform larger policy
debates. In retrospect, this should not have happened as complaints management becomes the
bench mark for evaluating the effectiveness of the NCPCR themselves, as most parliamentary
questions are focused on complaints. Moreover, the NCPCR is often drawn into responding to
every high-profile case that has drawn media attention and consequently of public concern. This
often diverts its attention from examining and analyzing policies and programs and keeping abreast
of macro-issues. Additionally, since the CPCRs have only persuasive power, and no power to pass
directions, the NCPCR was often perceived as a weak institution, thereby affecting its ability to
effect concrete change.

To address complaints relating to child rights violations in each State, the NCPCR stressed the need
to establish State Commissions. Based on the NCPCR‘s follow up and reiterating the requirement in
the Supreme Court, today almost every state in the country has a SCPCR.

V. Conclusion

Independence and autonomy is pivotal in determining the success or failure of the CPCRs in
fulfilling their mandate as an independent human rights institution, as envisaged under the Paris
Principles. The NCPCR is a statutory national institution established in recognition that ―it is
incumbent upon the signatory States to take all necessary steps to protect children's rights
enumerated in the Convention.‖12Though its financial dependence on the Ministry in effect renders
the NCPCR as a hand maiden to the government, this legislative gap should not come in the way of
the Commission taking categorical and consistent stands in favor of children and their rights and in
truly representing their concerns to inform policy and law. It is by empowering children and
securing their path to dignity and freedom, that the Commission establishes its credibility. This is
and will always be its main strength and the source of its authority. In fact it is by standing its
ground that the Commission‘s effectiveness is tested and its legitimacy is maintained. It is this
resolute approach to fulfilling the vision of the Constitution of India and the UNCRC that will
enable it to do justice to the task entrusted to it by the Parliament of India irrespective of the
societal, systemic, legislative or other challenges that may come its way.

References

1. UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions‘

http://nhrc.nic.in/Documents/Publications/1950-UNDP-UHCHR-Toolkit-LR.pdf
2. UNICEF Office of Research, Championing Children‟s Rights A global study of independent human
rights institutions for children – summary report, 2012
http://www.unicef-irc.org/publications/pdf/championing2_eng.pdf
3. Principles relating to the Status of National Institutions (The Paris Principles) (adopted by General
Assembly resolution 48/134 of 20 December 1993)

12 Preamble, CPCR, Act, 2005

86
Annexure1: Key Policy Documents, Notes and Studies prepared by the NCPCR during the
period 2007- 2014 available at http://ncpcr.gov.in/index.php?lang=1

1. Key Reforms in Juvenile Justice System (2009).

2. ‗Action Plan for Abolition of Child Labour In Delhi,‟ prepared on the direction of the Hon‘ble
Delhi High Court.
3. Strategy Paper on „Abolition of Child Labour in India‟ for the 11th Five Year Plan,‟ submitted to the
Planning Commission and Ministry of Labour in August, 2007.
4. „Abolition of Child Labour and Making Education a Reality for Every Child as a Right‟ submitted
along with a proposal for Amendments to the Child Labour (Prohibition & Regulation) Act,
1986 in October, 2008 to the Ministry of Human Resource and Development, Ministry of
Labour and Employment, Ministry of Woman and Child Development, Ministry of Tribal
Affairs, Ministry of Social Justice and Empowerment and Ministry of Law.
5. Critique of the National Child Labour Project (NCLP) Scheme of the Ministry of Labour
and Employment, submitted to the Planning Commission for the Twelfth Five-Year Plan,
(2012).
6. Approach paper on ―Monitoring Rights of Migrant Children‖ (2012-2013).
7. ‗Protection of Children from Sexual Offences Bill (2010)‘ drafted by the NCPCR. Several
measures recommended by the NCPCR are now part of the POCSO Act, 2012.
8. Policy document on ‟Rights of Children in Areas of Civil Unrest.‟
9. ‗Education as Emergency Relief.‟
10. ‗Protocols for Police and Armed Forces in Contact with Children in Areas of Civil Unrest‟.
11. Report on ‗Bal Bandhu - In Defense of Child Rights.‟
12. Report of a study on ‗Implementation of RTE in the states of Uttar Pradesh and Bihar.‟
13. Guidelines on “Elimination of Corporal Punishment in Schools.”
14. Report of a „Study on the Practice of Corporal Punishment In Schools‟ in the country.
15. ‗Rights and Entitlements of Children Infected and Affected with HIV and AIDS,‘ (2010).
16. ‘Safeguarding the Rights of Children in Contact with Railways,’ (2009-10).
17. „Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements, (2010-11).
18. A roadmap on „Child Participation,‟ 2012-13.
19. ‗National Policy on Children (2012),‟drafted by the NCPCR.
20. Approach Paper on Legislative Reform for Children.
21. Policy document on Status of Children in 14-18 years: Review of Policy, Programme and Legislative
Framework,(2012-2013).
22. Report of a research study on Adolescent Girl Children of First Generation Learners and Their Access
to Higher Education with a Focus on the State of Maharashtra / Champions Project commissioned to
KrantijyotiSavitribaiPhule Women's Studies Centre, University of Pune.
23. Child friendly manual on Child Rights
24. Child friendly manual on and Right to Equality
25. Monitoring Guidelines for NCPCR/SCPCR for Roles and Functions of Various
Stakeholders (CWC/Support Persons and Health Professionals; Police, Special Courts and
Special Public Prosecutors
26. Action Plan on Identification of Core Areas of Violation of Child Rights specific to each State in North
East.

Annexure 2: Important Court Matters in which the NCPCR played a role

87
1. The Hon‘ble High Court of Delhi in its order dated 19.2.2009, (in the case Harsh Virmani &
Ors. Vs. Govt. of NCT of Delhi (GNCTD) & Ors), constituted a Committee with the Chairperson,
NCPCR to make specific recommendations for improvement in the conditions of the Children‘s
Home for girls at Nirmal Chhaya Complex, Delhi. Subsequent orders of the High Court of Delhi
included all Children‘s Homes under this case. The report submitted by this Committee was
accepted by the Delhi High Court and further orders were issued directing the Government of
Delhi to take appropriate action on the same.
2. The Hon‘ble High Court of Delhi accepted the NCPCR‘s Action Plan on ‗Abolition of Child
Labour in Delhi,‘ through its order dated 15.7.2009, (in the case of Save the Childhood Foundation
vs. GNCTD &Ors.) Further, the concerned departments/ authorities of the Government of
Delhi, Municipal Corporation of Delhi (MCD), Delhi Police and Resident Commissioners of
concerned States were directed to implement this Action Plan.
3. On the direction of the Hon‘ble High Court of Delhi in the Civil W.P. No. 8889 of 2011, the
NCPCR steered a Committee to eliminate incarceration of children in jails in Delhi. These guidelines were
accepted by the Hon‘ble High Court in its decision dated 11.05.2012.
4. Recommendations were made by the NCPCR in June, 2008 and February, 2009 to all DGPs/
IGPs for issuing instructions to the Police at all levels for enforcement/ implementation of the
guidelines issued by the Hon‘ble Supreme Court on the subject in the case of (Writ Petition (Cri.)
No 610 of 1996) Horilal v. Commissioner of Police, Delhi & others.
5. The Hon‘ble Supreme Court of India, in its order (dated 31.03.2010), asked the NCPCR to
conduct an inquiry into the large-scale transportation of children from one state to another,
including from Manipur and Assam to Tamil Nadu. The report was submitted to the Court on July
15, 2010.
6. In the matter of ‗Exploitation of Children in Orphanage in the State of Tamil Nadu‘, the Court
ordered (1.9.2010) the NCPCR to continue to be engaged with the ―source as well as destination‖
states for addressing the protection issues concerning children taken from one state to another..
7. The Hon‘ble Delhi High Court, in its order (dated 19.2.2009), issued in the case of Harsh
Virmani& Ors. v. government of NCT, Delhi (GNCTD) & Ors., had constituted a Committee,
comprising the NCPCR Chairperson, a District Judge, Tis Hazari Court and the Secretary, Social
Welfare, GNCTD, to monitor CHG-I and CHG-II (Children Home for Girls) and submit a status
report which was submitted by the NCPCR.
8. Pursuant to the order, the Chairperson (NCPCR) and Secretary (SW&WCD), GNCTD, visited
CHG-I and CHG-II (Nirmal Chhaya Complex, Jail Road, New Delhi) on March 24, 2009.
Subsequent to the visit, a report on the condition of the Homes and the situation of the children
living there was submitted to the Court.
9. The Commission had also sought directions from the Hon‘ble Supreme Court of India in the
matter of Sampurna Behura v. Union of India and Ors. (Civil W.P. No. 473 of 2005) for the State
Governments / UT Administrations to take various steps for implementing the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000.
10. The NCPCR made recommendations to the State Governments/UT Administrations for
registration of FIR in the cases of missing children and inter-linking of websites on missing children
and child tracking system.
11. The NCPCR drafted a set of Guidelines for media reporting on children on direction of Hon‘ble High
Court of Delhi in the Civil W.P. No. 787 of 2012.

88
89
 Annexure A:

RECOMMENDED AMENDMENTS TO
THE COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005

&

THE NCPCR RULES, 2006 (As amended in 2014)

Submission by

Centre for Child and the Law (CCL)

National Law School of India University (NLSIU)
Nagarbhavi, Bangalore 560 242
Tel/fax: 080-23160528
Email: cclnls@nls.ac.in and ccl@nls.ac.in

9 June 2014
 RECOMMENDED AMENDMENTS TO THE COMMISSIONS ON PROTECTION OF CHILD RIGHTS ACT, 2005 AND THE NCPCR RULES

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INTRODUCTION
The Centre for Child and the Law (CCL) of the National Law School of India (NLSIU) is a specialized research centre working in the area
of child rights for the past eighteen years. The main thrust of CCL is on Juvenile Justice, Universalisation of Quality Equitable School
Education and Child Labour and more recently on justice to children through independent human rights institutions (such as the
Commissions for children), right to food, and child marriage. CCL NLSIU engages in research, teaching, training, limited direct field
intervention with children, lobbying and advocacy, in order to impact policy, law and practice on issues concerning children. The mission
of CCL is to institutionalize a culture of respect for child rights in India.

From January 2010 till September 2012, CCL worked on a project - Justice to Children through Independent Human Rights
Institutions in partnership with the UNICEF India Country Office. In the course of this project, CCL studied the working of the
National Commission for Protection of Child Rights, SCPCRs, and engaged with the Central Government and State Governments on rule
making and appointment processes. The research focused on how to ensure that Commissions function effectively at the national and state
level, and enable an effective interface between various human rights institutions, judiciary, quasi-judicial and statutory bodies for children,
build knowledge and skills among stakeholders, i.e. NGOs, networks and children so that they can access these institutions in case of child
rights violations. CCL has brought out a number of publications that would help in better implementation of the Act and has also
conducted capacity building programmes for 4 SCPCRs (Karnataka, Bihar, Kerala and West Bengal).

In June 2011, CCL developed recommendations for amendments to The Commissions for Protection of Child Rights Act, 2005 and the
NCPCR Rules, 2006 with a view to recognize the independence of these institutions and to promote transparency in the appointment
process. These were submitted to the Ministry of Women and Child Development in July 2011 and subsequently again on 8 November
2013, at the request of the Joint Director, MWCD.

The following recent developments have prompted CCL to revisit its recommendations:
 Since 2010, the opaque nature of the appointment process adopted for the Commissions for Protection of Child Rights has come
under judicial scrutiny. In Association for Development v. Union of India (2010), while deciding on the validity of appointments of two
members of the NCPCR, the Delhi High Court recommended that a broad based Selection Committee consisting of independent
experts in the field, the Chairperson of the UPSC, and/or the Leader of the Opposition be constituted. Gopal Subramanium, the
Solicitor General at the time had assured the Court that its recommendations would be borne in mind and that ―at least one

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Member of the Selection Committee shall be an independent expert of eminence in the field of child rights or welfare.‖ Further,
upon completion of the selection process and at least 30 days before the notification, the details of the members of the Selection
Committee and the selection candidates would be put up on the website of the Ministry.
 On 7 November 2013, the Delhi High Court in Association for Development v. Union of India,225 again considered a challenge to the
appointment of two members of the NCPCR. Application filed under the Right to Information Act, 2005, confirmed that no
advertisements had been issued by the Ministry to fill the posts in the Commission. The petitioners claimed that the Selection
Committee ―took no steps to verify the credentials‖ or cited reasons for preferring these members over other candidates. What was
also on record in this case was that the source of recommendations for all candidates was political. 226 The court quashed the
appointment of one member and expressed its concern that the selection process ―is not based on any objective guidelines.‖ It
urged the government to prescribe guidelines for eligibility and ―to introduce some objective evaluation method‖.
 The above decision has been appealed before the Supreme Court and its order dated 25 February 2014227, the apex court observed
that the government had the requisite powers to frame guidelines for the selection process and that they saw ―no reason why norms
and guidelines for selection of candidates should not be framed and published so that the entire process of selection is fair,
reasonable, objective and transparent.‖ The court was also critical of the suggestion that advertising vacancies was not necessary as
the Ministry had been receiving application without publicizing it. It observed that ―[r]eceiving applications from candidates
recommended by people who have no role to play in the process of selection may in fact have the effect of rendering the selection
process suspect for any such recommendations are most likely to influence the selection process in a subtle manner to the prejudice
of other candidates who are not resourceful enough to secure such recommendations no matter they are otherwise equally if not
more meritorious.‖ It cautioned the government against hurrying the selection process without framing rules and guidelines.
 On 24 March 2014, the MWCD amended the NCPCR Rules to specify the norms for selection of Chairperson and Members of the
NCPCR. In order to be eligible, one must be an Indian national with a post-graduate degree from a recognized university, and
should not have been convicted or sentenced to imprisonment for any offence, or have been removed or dismissed from the
service of the government or that of any body or corporation owned by the government. Vacancies would have to be advertised in
225 Association for Development v. Union of India, W.P. (C) 1055/2011, decided by the Delhi High Court on 7.11.2013,
226 Of the 130 applications, 35 had been recommended by Union Ministers, 18 were political party functionaries of which 17 were Congress leaders, 33
had been recommended by MPs and MLAs, 7 by Chief Ministers and State Cabinet Ministers, 10 by NCPCR, and 3 by the PMO – Association for
Development v. Union of India, W.P. (C) 1055/2011, decided by the Delhi High Court on 7.11.2013, Para 27.
227 Yogesh Dube v. Association for Development, Civil Appeal No. 10960 of 2013

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at least four national dailies and also publicized on the website of the Ministry and at least four weeks must be allowed for receiving
applications. The Selection Committee will consist of the Minister-in-charge, Secretary of the Ministry, and one independent expert
of eminence in the field of child rights who will be nominated by the Minister. The amended rules state that the applications will be
―scrutinized‖ and ―after due consideration‖ by the Selection Committee the suitability of the candidates will be decided. The
Schedule to the Rules prescribes the Application Form, which requires candidates to certify that they are not a MP, MLA, or
member of any political party and that if they are selected they will not hold any office of profit or pursue any profession or carry
on any business. The MWCD also brought down the status of the Chairperson from Cabinet Secretary to Secretary and that of the
Members from Secretary to Additional Secretary. Though the powers of the Commission have not been diluted, this reduction of
status has effectively weakened this body, as it will naturally be unable to command the requisite authority to deal with the
Executive at the highest level.
 On 6 May 2014, the NCPCR Rules were further amended to lower the educational qualification from post-graduation to
graduation.228

In June 2014, CCL has revisited its recommendations for reform to the CPCR Act and NCPCR Rules (including the two amendments of
2014) in light of the above developments. The recommendations are based on extensive research undertaken at CCL on the
implementation of the Act, working of the Commissions, international standards229, legislations and case law on human rights institutions
established in India and abroad, as well as its participation in selection committees for the appointment of members of Child Welfare
Committee and Juvenile Justice Board230. Insights from all of the above were further substantiated by the team‘s experiences in engaging
with the NCPCR and numerous SCPCRs around the country, as well as from the capacity building programmes that CCL has conducted
for Commissions in four States since 2012.

228 National Commission for Protection of Child Rights (Second Amendment) Rules, 2014,
http://wcd.nic.in/gazette_of_india_2nd_ammendment_06_05_2014.pdf
229 Paris Principles, General Comment No.2 by UN Committee on Child Rights, Commonwealth Secretariat, National Human Rights Institutions Best

Practice, 2001, and ICHRP & OHCHR, Assessing the Effectiveness of National Human Rights Institutions, 2005 and Amnesty International, National
Human Rights Institutions: Recommendations On Effective Protection and Promotion of Human Rights, 2001
230 Ms. Arlene Manoharan, Fellow, CCL NLSIU, who served as a member of the Karnataka State Selection Committee under the Juvenile Justice (Care

and Protection of Children) Act in 2004, 2006 and again in 2014.

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One of the key principles that emerges from all the above is independence of human rights institutions. The term ―independence‖ has to
be understood in its fullest sense as signifying foundational, functional and operational, and financial independence:
 The foundational independence depends on the manner in which the institution has been brought into existence, its composition,
and the process followed to appoint members. The appointment process should be fair, transparent, and bereft of political
influences.
 Operational autonomy stems from the authority to appoint staff and take administrative decisions.
 Financial independence is very critical as dependence on the government for funds can stymie the effectiveness of an oversight
authority.

In order to strengthen the NCPCR and SCPCRs and empower them to function as independent human rights institutions the CPCR Act
will have to be amended. We hope that this document would begin a process of law reform towards building an effective Commission that
would promote and protect children‘s rights. We urge the Government to provide for a participatory and transparent process of amending
the Act and the NCPCR Rules.

Please find below a copy of the recommended amendments to the parent Act and Rules. The explanations and rationale for the
recommendations have been provided for separately in the column on ‗Comments‘. The use of single underlining denotes portions to be
deleted and use of double underlining denotes portions to be inserted. For further clarifications, please contact the Centre for Child and
the Law, National Law School of India University, Bangalore.

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S.No. CPCR Act
1. Short title, extent and commencement.
(1)…
(2) It extends to the whole of India except
the State of Jammu and Kashmir.
1. 3. Constitution of National Commission
for Protection of Child Rights.-
(1)….
(2) The Commission shall consist of the
following Members, namely,-
(a) a Chairperson who is a person of
eminence and has done outstanding
work for promoting the welfare of
children; and
(b) six Members, out of which at least
two shall be women, from the
following fields, to be appointed by
the Central Government from
amongst persons of eminence, ability,
Proposed Amendment
1. Short title, extent and commencement.
(1)…
(2) It extends to the whole of India.
Provided that it shall apply to the State of
Jammu & Kashmir only in so far as it
pertains to the matters relatable to any of the
entries enumerated in List I or List III in the
Seventh Schedule to the Constitution as
applicable to that State.
3. Constitution of National Commission
for Protection of Child Rights.-
(1)….
(2) The Commission shall consist of the
following Members, namely,-
(d) a Chairperson who is or has been a
Judge of the Supreme Court;
(e) one Member who is or has been the
judge of a High Court or an
academician or legal practitioner who
has expertise in the area of child rights;
(f) five Members, out of which at least two
shall be women and two shall be from
amongst persons belonging to the
Scheduled Castes and Scheduled Tribes,
Comments
Replicated from the proviso to
Section 1(2) of the Protection of
Human Rights Act, 1993.
The composition has been
derived, partly, from the
Protection of Human Rights
Act, 1993. The clause requiring a
member having experience in
―law relating to children‖ has
been deleted. This is because it
can be reasonably assumed that
a Judge of the Supreme Court or
High Court and an academician
or legal practitioner will have
adequate knowledge of laws
pertaining to children.
In order to impart a pluralistic
character, it is preferable that at
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integrity, standing and experience in.-
i Education,
ii Child health, care, welfare or child
development,
iii Juvenile justice or care of neglected
or marginalized children or children
with disabilities;
iv elimination of child labour or
children in distress;
v child psychology or sociology; and
vi law relating to children.
from the following fields, to be least two of the members belong
appointed from amongst persons of to Scheduled Castes and
eminence, ability, integrity, standing and Scheduled Tribes.
experience in.-
Experience in ―child rights‖ is
vi Primary and secondary education, more appropriate than child
vii Child health, care, child rights or child welfare.
development, ―Juvenile justice‖ includes within
viii Juvenile justice or care of marginalized its ambit children in need of care
children or children with disabilities; and protection and hence ―care
ix elimination of child labour or children of neglected children‖ may be
in distress; deleted.
x child psychology or sociology; and

2. 3A. Eligibility for appointment as
Chairperson and other Members.- (1) Any
person who has at least ten years‘ experience
in the areas stated in clause (c) of sub-section
(2) of section 3 and is not otherwise
disqualified under the Act may be considered
eligible for appointment as Chairperson or
Member of the Commission.
The parent Act must lay down
clear and definite criteria for
membership. At the very least,
years of experience should be
stipulated. This will partly qualify
the terms ―eminence, ability,
integrity, standing and
experience‖ stated in Section
3(2).

This has been stated in Rule 3 of

the NCPCR Rules, 2006.

(2) No person having any past record of

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violation of human rights or child rights shall

be eligible for appointment as Chairperson This sub-section qualifies the
or Member of the Commission. term ‗integrity‘ and ‗standing,
(3) No person having been convicted and
sentenced for imprisonment of an offence
which in the opinion of the Central
Government involves moral turpitude shall This sub-section qualifies the
be eligible for appointment as Chairperson term ‗integrity‘, standing‘ and has
or Member of the Commission. been replicated from legislations
(4) No person having been removed or relating to other human rights
dismissed from service of the Central institutions.
Government or a State Government or a
body or corporation owned or controlled by This sub- section seeks to
the Central Government or a State reinforce the prohibition on
Government shall be eligible for engaging in any employment
appointment as Chairperson or Member of outside the duties of office as
the Commission. per Section 7(2)(b) of the Act.
(5) The Chairperson or Member shall not be
a Member of Parliament or be a member of
Legislature of any State and shall not hold
any office of trust or profit (other than his
office as Chairperson or Member) or be
connected with any political party or carry on
any business or practice any profession and
accordingly, before he enters upon his office,
a person appointed as the Chairperson or
Member shall-
(a) if he is a Member of the Parliament or of

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the Legislature of any State, resign such

membership; or
(b) if he holds any office of trust or profit,
resign from such office; or
(c) if he is connected with any political party,
sever his connection with it; or
(d) if he is carrying on any business, sever his
connection (short of divesting himself of
ownership) with the conduct and
management of such business; or
(e) if he is practicing any profession, suspend
practice of such profession.
(6) A person who has held an office of
Chairperson or Member for two terms, in
any capacity shall not be eligible for re-
appointment as Chairperson or, as the case
may be, as Member.
3. 4(1).Appointment of Chairperson and 4(1).Appointment of Chairperson and This entire provision has been
Members. - The Central Government shall, Members. - (1) The Chairperson and other largely replicated from the
by notification, appoint the Chairperson and Members shall be appointed by the President Protection of Human Rights
other Members: by warrant under his hand and seal. Act, 1993. Since the
Commissions perform similar
functions, the appointment
Provided that the Chairperson, shall be Provided that every appointment under this process should also be the same.
appointed on the recommendation of a three sub-section shall be made after obtaining the A high powered selection
member Selection committee constituted by recommendations of a Selection Committee committee will ensure that able
the Central Government under the consisting of: and experienced persons are
Chairmanship of the Ministry of Human (a) The Prime Minister —Chairperson appointed to the Commission in

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Resource Development or the Department (b) Speaker of the House of the People —
of Women and Child Development.
Member
(c) Chief Justice of the Supreme Court 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 States
— Member
(g) An eminent person who has done
outstanding work in the field of child rights –
Member.
Provided further that no sitting Judge of the
Supreme Court or sitting Judge of a High
Court shall be appointed except after
consultation with the Chief Justice of India.
(2) For the purposes of selection of the non-
judicial Members of the Commission for
Protection of Child Rights, the Central
Government shall invite applications from
qualified candidates from the public through
an advertisement in at least four leading
national dailies (two English and two Hindi)
and shall prepare a list of eligible candidates
from the applications so received on the
a transparent manner. In order
to ensure an independent and
pluralistic representation of
persons within the Commission,
it is recommended that the
Selection Committee consist of
representatives of the legislature,
judiciary and civil society.
Further, this sub-rule is in
accordance with Principles
relating to the Status of National
Institutions (The Paris
Principles), Adopted by General
Assembly resolution 48/134 of
20 December 1993, General
Comment No.2 (2002), The role
of independent human rights
institutions in the promotion
and protection of the rights of
the child, Committee on the
Rights of the Child,
CRC/GC/2002/2, 15
November 2002,
Commonwealth Secretariat,
National Human Rights
Institutions Best Practice, 2001.
(―NHRI Best Practices) and
ICHRP & OHCHR, Assessing

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basis of the eligibility criteria stated in sub- the Effectiveness of National

clause (c) of sub-section (2) of section 3. The Human Rights Institutions,
list of eligible candidates shall be submitted 2005.
to the Selection Committee for its
consideration.
(3) In recommending and appointing persons
as Chairperson or Members, the Selection This provision will place an
Committee and the President shall also have express obligation upon the
regard to the geographical, cultural, political, Committee and the President to
social and economic diversity.231 ensure that regard is had to
factors that will help achieve a
plural composition.
(4) The names of the judicial and non-judicial
persons recommended by the Committee
shall be placed in the public domain for The appointment process should
thirty days to invite objections in writing. be transparent and an
opportunity should be available
(5) All objections should be considered by to civil society and others to
the Committee and the President before the participate by exercising their
recommendations and appointments are option to file objections.
finalized.

(6) The selection and appointment process

shall be fair, rigorous and transparent.

(7) No appointment of a Chairperson or a

Member shall be invalid merely by reason of
231 This provision has been derived from Section 6(8) of the Kenya National Commission on Human Rights Act, 2002.
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any vacancy in the Committee.

4. 5. Term of office and conditions of
service of Chairperson and Members. -
(1) The Chairperson and every Member shall
hold office as such for a term of three years
from the date on which he assumes office:
Provided that no Chairperson or a Member
shall hold the office for more than two
terms:
Provided further that no Chairperson or any
other Member shall hold office as such after
he has attained, -
(a) in the case of the Chairperson, the
age of sixty-five years; and
(b) in the case of a Member, the age of
sixty years.
5. Term of office and conditions of
service of Chairperson and Members. -
(1) The Chairperson and every Member shall
hold office as such for a term of five years
from the date on which he assumes office:
Provided that no Chairperson or a Member
shall hold the office for more than two
terms:
Provided further that no Chairperson or any The age limit has been revised
other Member shall hold office as such after bearing in mind that a retired
he has attained, - judge of the Supreme Court or
(a) in the case of the Chairperson, the High Court will be above the age
age of seventy years; and of sixty-five years or sixty-two
(b) in the case of a Member, the age of years, respectively. The term has
sixty-five years. been revised to five years.

(2) The Chairperson or a Member may, by
writing under his hand addressed to the
Central Government, resign his office at any
time.
(2) The Chairperson or a Member may, by This is necessary so as to ensure
writing under his hand addressed to the the independence of the
President, resign his office at any time. Commission.
(3) On ceasing to hold office, a Chairperson
or a Member shall be ineligible for further
employment under the Government of India
or under the Government of any State.

5. 7. Removal from office. - (1) Subject to the 7. Removal from office. - (1) Subject to the The removal procedure has been
provisions of sub section (2), the provisions of sub-section (2), the replicated from the Protection of
Chairperson may be removed from his office Chairperson or any other Member of the Human Rights Act, 1993.

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by an order of the Central Government on Commission shall only be removed from his
the ground of proved mis-behaviour or office by order of the President on the
incapacity. ground of proved mis-behaviour or
incapacity after the Supreme Court, on
reference being made to it by the President,
has, on inquiry held in accordance with the
procedure prescribed in that behalf by the
Supreme Court, reported that the
Chairperson or such other Member, as the
case may be, ought on any such ground to be
removed.
(2) Notwithstanding anything in sub-section
(2) Notwithstanding anything contained in (1), the President may by order remove from
sub section(1), the Central Government may office the Chairperson or any other Member
by order remove from office the Chairperson if the Chairperson or such other Member, as
or any other Member, if the Chairperson or, the case may be
as the case may be, such other Member (a) is adjudged an insolvent; or
(a) is adjudged an insolvent; or (b) engages during his term of office in
(b) engages during his term of office in any paid employment outside the
any paid employment outside the duties of his office; or
duties of his office; or (c) refuses to act or becomes incapable
(c) refuses to act or becomes incapable of of acting; or
acting; or (d) is of unsound mind and stands so
(d) is of unsound mind and stands so declared by a competent Court; or
declared by a competent Court; or (e) has so abused his office as to render
(e) has so abused his office as to render his continuance in office detrimental
his continuance in office detrimental to the public interest; or
to the public interest; or (f) is convicted and sentenced to

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(f) is convicted and sentenced to imprisonment for an offence which in

imprisonment for an offence which in
the opinion of the Central
Government involves moral turpitude;
or
(g) is, without obtaining leave of absence
from the Commission, absent from
three consecutive meetings of the
Commission
the opinion of the President involves
moral turpitude ;or
(g) is, without obtaining leave of absence
from the Commission, absent from
three consecutive meetings of the
Commission

(3) No person shall be removed under this

section until that person has been given an (3) No person shall be removed under this
opportunity of being heard in the matter. section until that person has been given an
opportunity of being heard in the matter.

6. 8. Vacation of office by Chairperson or 8. Vacation of office by Chairperson or

Member. – (1) If the Chairperson or, as the
case may be, a Member,-
(a) becomes subject to any of the
disqualifications mentioned in
section 7; or
(b) tenders his resignation under sub
section (2) of Section 5
his seat shall there upon become vacant
(2) If a casual vacancy occurs in the office of
the Chairperson or a Member, whether by
reason of his death, resignation or
otherwise, such vacancy shall be filled
Member. –(1) If the Chairperson or, as the
case may be, a Member,-
(c) becomes subject to any of the
disqualifications mentioned in
section 7; or
(d) tenders his resignation under sub
section (2) of Section 5
his seat shall there upon become vacant
(2) If a casual vacancy occurs in the office of
the Chairperson or a Member, whether by
reason of his death, resignation or
otherwise, such vacancy shall be filled

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within a period of ninety days by making within a period of ninety days by making This provision should be
fresh appointment in accordance with the fresh appointment in accordance with the included so as to ensure that the
provisions of section 4 and the person so provisions of section 4 and the person so activities of the Commission are
appointed shall hold office for the appointed shall hold office for the not affected due to the vacancy.
remainder of the term of office for which remainder of the term of office for which
the Chairperson, or a Member, as the case the Chairperson, or a Member, as the case
may be, in whose place he is so appointed may be, in whose place he is so appointed
would have held that office. would have held that office.
(3) In the event of the occurrence of any
vacancy in the office of the Chairperson by
reason of his death, resignation or otherwise,
the President may, by notification, authorize
one of the Members to act as the
Chairperson until the appointment of a new
Chairperson to fill such vacancy.

7. 8A Committees of the Commission.- (1) Given the broad mandate of the

The Commission may appoint such Commission, it will aid its
Committees or Working Groups as may be efficiency if the Commission is
necessary for dealing with such special issues expressly empowered to
as may be taken up by the Commission constitute Committees and
from time to time. Working Groups to undertake
(2)The Commission shall have the power to research.
co-opt as members of any Committee or
Working Group appointed under sub-section
(1) such number of persons, who are not
members of the Commission, as it may think
fit and the persons so co-opted shall have

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the right to attend meetings of the

committee and take part in the proceedings,
but shall not have the right to vote.
(3) The persons so co-opted shall be entitled
to receive such allowances for attending the
meetings of the Committee or Working
Group as may be prescribed.
(4) To coordinate the work of the
committees, the Chairperson may nominate
any Member or person of his choice as
Convenor of the Committee concerned.

8. 10. Procedure for transaction of business.
– (1) …
(2) …
(3)…
(4) The Commission shall observe such
rules of procedure in the transaction of its
business at a meeting, including the quorum
at such meeting, as may be prescribed by the
Central Government.
9. 11. Member-Secretary, officers and other
employees of Commission.- (1) The
Central Government shall, by notification ,
appoint an officer not below the rank of the
additional secretary or the joint secretary to
the Government of India as a Member
Secretary of the Commission and shall make
10. Procedure for transaction of business.
– (1) …
(2) …
(3)…
(4) The Commission shall regulate its own
procedure.
11. Secretary, officers and other
employees of Commission.- (1) The
Central Government shall, by notification,
appoint an officer not below the rank of the
Additional Secretary or the Joint Secretary
to the Government of India as a full-time
Secretary of the Commission and shall make
Except the NCPCR & SCPCR,
all other human rights
institutions in India have been
empowered to frame their own
regulations. The CPCR Act
should be amended to provide
for this.
The Secretary is tasked with
administrative functions and is
not being appointed according
to procedures meant for
Members. Hence the Secretary
would function not as a
Member-Secretary but as a

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available to the Commission such other available to the Commission such other
officers and employees as may be necessary officers and employees as may be necessary
for the efficient performance of its for the efficient performance of its
functions. functions.
(4) The Commission may appoint such
other administrative, technical and scientific
staff and consultants as it may consider
necessary. The appointments should be fair,
transparent and based on merit.
(5) The salary and allowances payable to staff
and consultants appointed by the
Commission under sub-section (4) shall be
determined by the Commission from time to
time.
10. 13. Functions of Commission. – (1) … 13. Functions of Commission. – (1) …
(h) spread child rights literacy among various (h) spread child rights literacy among various furtherance of the mandate of
sections of the society and promote sections of the society and promote the Commission.
Secretary. The SCPCRs are
provided with a Secretary and
this brings uniformity in the
institutions envisaged at the
national and state level.
The Secretary and other staff
should be appointed in
concurrence with the
Commission so as to facilitate
smooth operations. It is
necessary to specify that the
Secretary shall serve the
Commission on a full-time basis
so as to prevent holding of
additional charges.
The Commission should be
empowered to appoint staff as it
may deem fit. This power is
available to the NHRC.
The Commission should also
have the operational autonomy
to determine the salaries for the
staff appointed by it.
The additional functions are in
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awareness of the safeguards available for
protection of these rights through
publications, the media, seminars and other
available means;
awareness of the safeguards available for
protection of these rights through age-
appropriate and child-friendly publications,
the media, seminars and other available
means;

(k) monitor, scrutinise, and evaluate steps

taken by the Government for the welfare and
rights of children and to recommend in
consultation with children and groups This has been derived from
working in furtherance of child rights, Section 12(b) of the PHR Act.
suitable measures for achieving the goals laid
down in the Convention on the Rights of the
Child as well as in Part III and Part IV of the
Constitution of India which have a bearing
on the welfare and rights of children;
(l) intervene in any proceeding involving any
allegation of violation of child rights or which
may affect the child rights of persons not
parties to the proceedings pending before a
court with the approval of such court; This has been adapted from
(m) act as amicus curiae in any proceeding Section 10(1)(l) of the NCW
involving any allegation of violation of child Act, 1990.
rights or which may affect the child rights of
(k) such other functions as it may consider persons not parties to the proceedings
necessary for the promotion of child rights pending before a court with the approval of
and any other matter incidental to the above such court
functions. (n) identify and remedy all harmful and de-

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11. 14. Powers relating to inquiries. – (1) The
Commission shall, while inquiring into any
matter referred to in clause (j) of sub section
(1) of section 13 have all powers of a civil
court trying a suit under the Code of civil
Procedure, 1908 and, in particular, in
respect of the following matters, namely:-
(a) summoning and enforcing the attendance
of any person and examining him on oath;
(b) discovery and production of any
document
(c)receiving evidence on affidavits
(d) requisitioning any public record or copy
thereof from any court or office; and
(e) issuing commissions for the examination
humanising practices pertaining to the child,
especially the girl child and children with
disabilities, whether within the family, the
community, the educational institution, the
place of work, or in any institution for
children, run by the state or the voluntary
sector;
(o)fund litigation involving issues affecting a
large body of children;
(p) such other functions as it may consider
necessary for the promotion of child rights
and any other matter incidental to the above
functions.
14. Powers relating to inquiries. – (1) The
Commission shall, while inquiring into any
matter referred to in clause (j) of sub section Replicated from Section 13(3) of
(1) of section 13 have all powers of a civil the Protection of Human Rights
court trying a suit under the Code of civil Act, 1993.
Procedure, 1908 and, in particular, in
respect of the following matters, namely:-
(a) summoning and enforcing the attendance
of any person and examining him on oath;
(b) discovery and production of any
document
(c)receiving evidence on affidavits
(d) requisitioning any public record or copy
thereof from any court or office; and
(e) issuing commissions for the examination
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of witnesses or documents.
(2) The Commission shall have the power to
forward any case to a Magistrate having
jurisdiction to try the same and the
magistrate to whom any such case is
forwarded shall proceed to hear the
complaint against the accused as if the case
has been forwarded to him under section 346
of the Code of Criminal Procedure, 1973.
of witnesses or documents
(2) The Commission shall have the power to
forward any case to a Magistrate having
jurisdiction to try the same and the
magistrate to whom any such case is
forwarded shall proceed to hear the
complaint against the accused as if the case
has been forwarded to him under section
346 of the Code of Criminal Procedure,
1973.
(3) The Commission shall have the power to
require any person, subject to any privilege
which may be claimed by that person under Replicated from Section 13(4) of
any law for the time being in force, to the Protection of Human Rights
furnish information on such points or Act, 1993.
matters as, in the opinion of the
Commission, may be useful for, or relevant
to, the subject matter of inquiry and any
person so required shall be deemed to be
legally bound to furnish such information
within the meaning of section 176 and
section 177 of the Indian Penal Code.
(4) The Commission or any other officer ,
not below the rank of a Gazetted officer,
especially authorised in this behalf by the
Commission may enter any building or place Replicated from Section 13(4) of
where the Commission has reason to the Protection of Human Rights
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believe that any document relating to the Act, 1993.

subject matter of the inquiry may be found,
and may seize any such document or take
extracts or copies therefrom subject to the
provisions of section 100 of the Code of
Criminal Procedure,1973, in so far as it may
be applicable.

(5) The Commission shall be deemed to be a

civil court and when any offence as is
described in section 175, section 178, section
179, section 180 or section 228 of the Indian
Penal Code is committed in the view or Replicated from Section 13(5) of
presence of the Commission, the the Protection of Human Rights
Commission may after recording the facts Act, 1993.
constituting the offence and the statement
of the accused as provided for in the Code
of Criminal Procedure, 1973 forward the
case to a Magistrate having jurisdiction to try
the same and the Magistrate to whom any
such case is forwarded shall proceed to hear
the complaint against the accused as if the
case has been forwarded to him under
section 346 of the Code of Criminal
Procedure,1973.

(6) Every proceeding before the

Commission shall be deemed to be a judicial

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proceeding within the meaning of section

193 and 228, and for the purposes of
section 196, of the Indian Penal Code, and
the Commission shall be deemed to be a
civil court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure,1973.
12. 14A. Investigation. – (1) The Commission Replicated from Section 14 of
may, for the purpose of conducting any the Protection of Human Rights
investigation pertaining to the inquiry, utilise Act, 1993.
the services of any officer or investigation
agency of the Central Government or any
State Government with the concurrence of
the Central Government or the State
Government, as the case may be.

(2) For the purpose of investigating into any

matter pertaining to the inquiry, any officer
or agency whose services are utilised under
sub-section(1) may, subject to the direction
and control of the Commission -
(a) summon and enforce the attendance
of any person and examine him;
(b) require the discovery and production
of any document; and
(c) requisition any public record or copy
thereof from any office.

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(3) The provisions of this section shall apply

in relation to any statement made by a person
before any officer or agency whose services
are utilised under sub-section(1) as they apply
in relation to any statement made by a person
in the course of giving evidence before the
Commission.
(4) The officer or agency whose services are
utilised under sub-section(1) shall investigate
into any matter pertaining to the inquiry and
submit a report thereon to the Commission
within such period as may be specified by the
Commission in this behalf.
(5) The Commission shall satisfy itself about
the correctness of the facts stated and the
conclusion, if any, arrived at in the report
submitted to it under sub-section (4) and for
this purpose the Commission may make
such inquiry (including the examination of
the person or persons who conducted or
assisted in the investigation) as it thinks fit.
13. 14B. Inquiry into complaints Replicated from Section 17 of
The Commission while inquiring into the the Protection of Human Rights
complaints of violations of child rights may- Act, 1993.
(i) call for information or report from the
Central Government or any State
Government or any other authority or

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organisation subordinate thereto within such

time as may be specified by it;
Provided that-
(a) if the information or report is not
received within the time stipulated by the
Commission, it may proceed to inquire into
the complaint on its own;
(b) if, on receipt of information or report,
the Commission is satisfied either that no
further inquiry is required or that the
required action has been initiated or taken by
the concerned Government or authority, it
may not proceed with the complaint and
inform the complainant accordingly;
(ii) without prejudice to anything contained
in clause (i), if it considers necessary, having
regard to the nature of the complaint, initiate
an inquiry.

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14.
15. 15. Steps after inquiry. - The Commission
may take any of the following steps upon the
completion of an inquiry held under this Act,
namely:-
(i) where the inquiry discloses, the
Commission of violation of child rights of a
serious nature or contravention of provisions
of any law for the time being in force, it may
be recommend to the concerned government
or authority the initiation of proceedings for
prosecution or such other action as the
Commission may deem fit against the
concerned person or persons
(ii) approach the Supreme court or the High
Court concerned for such directions, orders
14C. Statement made by persons to the Replicated from Section 15 of
Commission the Protection of Human Rights
No statement made by a person in the Act, 1993
course of giving evidence before the
Commission shall subject him to, or be used
against him in, any civil or criminal
proceeding except a prosecution for giving
false evidence by such statement:
Provided that the statement —
(a) is made in reply to the question which he
is required by the Commission to answer; or
(b) is relevant to the subject matter of the
inquiry.
15. Steps after inquiry. - The Commission
may take any of the following steps upon the
completion of an inquiry held under this Act,
namely:-
(i) where the inquiry discloses, the
Commission of violation of child rights of a
serious nature or contravention of provisions
of any law for the time being in force, it may
be recommend to the concerned government
or authority the initiation of proceedings for
prosecution or such other action as the
Commission may deem fit against the
concerned person or persons
(ii) approach the Supreme Court or the High
Court concerned for such directions, orders
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or write as that Court may deem necessary
(iii) recommend to the concerned
Government or authority for the grant of
such interim relief to the victim or the
members of his family as the commission
may consider necessary
or write as that Court may deem necessary
(iii) recommend to the concerned
Government or authority for the grant of
such interim relief to the victim or the
members of his family as the commission
may consider necessary
(iv) subject to the provisions of clause(v),
provide a copy of the inquiry report to the This has been replicated from
petitioner or his representative; Section 18(d) of the Protection
of Human Rights Act, 1993.
(v) the Commission shall send a copy of its
This is a modified version of
inquiry report together with its
Section 18(e) of the Protection
recommendations to the concerned of Human Rights Act, 1993. The
Government or authority and the concerned proviso should be included so as
Government or authority shall, within a to prevent delays in the
period of one month, or such further time as implementation of the
the Commission may allow, forward its recommendations of the
comments on the report, including the action Commission.
taken or proposed to be taken thereon, to
the Commission;
Provided that if the concerned Government
or authority does not forward its comments
on the report, including the action taken or
proposed to be taken thereon, within a
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period of one month, or such further time as

the Commission may allow, the
recommendations of the Commission shall
be deemed to have been accepted, and the
concerned government or authority shall
implement whatever recommendation that
has been made by the Commission in the
inquiry report.

(vi) the Commission shall publish its inquiry

report together with the comments of the
concerned Government or authority, if any,
and the action taken or proposed to be
taken by the concerned Government or
authority on the recommendations of the
Commission.
(vii) the Commission may also recommend
to the Central Government, State
Government or the appropriate authority, to
appoint a counsel or a Special Prosecutor for
the conduct of any such legal proceedings or
prosecutions; and the Central or State
Government may, having regard to the
nature of the case and on being satisfied that
it is necessary , in its opinion, to appoint a
counsel or Special Prosecutor, do so
(viii) The Central or State Government or

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the appropriate authority, as the case may be,

shall communicate in writing to the
commission, from time to time, the progress
of any legal proceedings or prosecution filed
on the recommendation of the Commission.
(ix) The Central or State Government or the
appropriate authority shall not apply for
withdrawal of any such case or proceedings
instituted under clause (i) without prior
consultation with the Commission.
16. 15A. Persons likely to be prejudicially This has been replicated from
affected to be heard Section 16 of the Protection of
If, at any stage of the inquiry, the Human Rights Act, 1993.
Commission-
(a) considers it necessary to inquire into the
conduct of any person; or
(b) is of the opinion that the reputation of
any person is likely to be prejudicially
affected by the inquiry;
it shall give to that person a reasonable
opportunity of being heard in the inquiry and
to produce evidence in his defence:
Provided that nothing in this section shall
apply where the credit of a witness is being
impeached.

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17. 17. Constitution of State Commission for
Protection of Child Rights. - (1). The State
Government may constitute a body to be
known as the…….. (Name of the state)
Commission for Protection of Child Rights
to exercise the powers conferred on, and to
perform the functions assigned to it, under
this Act.
(2) The State Commission shall consist of the
following Members, namely,-
(a) a Chairperson who is a person of
eminence and has done
outstanding work for promoting
the welfare of children; and
(b) six Members, out of which at least
two shall be women, from the
following fields, to be appointed by
the Central Government from
amongst persons of eminence,
ability, integrity, standing and
experience in.-
(i) Education,
17. Constitution of State Commission for
Protection of Child Rights. - (1). The State
Government shall constitute a body to be
known as the…….. (Name of the state)
Commission for Protection of Child Rights
to exercise the powers conferred on, and to
perform the functions assigned to it, under
this Act.
(2) The State Commission shall consist of
the following Members, namely,-
(a) a Chairperson who is or has been a
Judge of the High Court;
(b) one Member who is or has been the
judge of a District Court or an
academician or legal practitioner who
has expertise in the area of child
rights;
(c) five Members, out of which at least
two shall be women and two may
preferably be from amongst persons
belonging to the Scheduled Castes
and Scheduled Tribes, from the
following fields, to be appointed
from amongst persons of eminence,
ability, integrity, standing and
experience in.-
(i) Primary and secondary education,
The term ‗may‘ should be
substituted with ‗shall‘ so as to
ensure that State Governments
establish the Commission and
time is not lost in approaching
courts and obtaining directions
from the court.
The composition has been
derived, partly, from the
Protection of Human Rights
Act, 1993. The clause requiring a
member having experience in
―law relating to children‖ has
been deleted. This is because it
can be reasonably assumed that
a Judge of the High Court and a
District Court and an
academician or legal practitioner
will have adequate knowledge of
laws pertaining to children. In
order to impart a pluralistic
character, it is preferable that at
least one of the members belong
to the Scheduled Castes or
Scheduled Tribes.
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(ii) Child health, care, welfare or
child development,
(iii) Juvenile justice or care of
neglected or marginalized
children or children with
disabilities;
(iv) elimination of child labour
or children in distress;
(v) child psychology or
sociology; and
(vi) law relating to children.
18. 18. Appointment of Chairperson and
other Members. - The State Government
shall, by notification, appoint the chairperson
and other members:
Provided that the Chairperson shall be
appointed on the recommendation of a three
Member Selection Committee constituted by
the State Government under the
Chairmanship of the Minister-in-charge of
the Department dealing with children.
(ii) Child health, care, child rights or child
development,
(iii) Juvenile justice or care of marginalized
children or children with disabilities;
(iv) elimination of child labour or children in
distress;
(v) child psychology or sociology; and
18. Appointment of Chairperson and This entire provision has been
other Members of State Commission (1) largely replicated from the
The Chairperson and other Members shall Protection of Human Rights
be appointed by the Governor by warrant Act, 1993. Since the
under his hand and seal: Commissions perform similar
Provided that every appointment under this functions, the appointment
sub-section shall be made after obtaining the process should also be the same.
recommendation of a Committee consisting
of A high powered selection
committee will ensure that able
(a) the Chief Minister — Chairperson and experienced persons are
(b) Speaker of the Legislative Assembly — appointed to the Commission in
Member a transparent manner. In order
(c) Chief Justice of the High Court — to ensure an independent and
Member pluralistic representation of
(d) Leader of the Opposition in the persons within the Commission,
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Legislative Assembly — Member it is recommended that the

(e) An eminent person who has done Selection Committee consist of
outstanding work in the field of child rights – representatives of the legislature,
Member: judiciary, and civil society.
Provided further that where there is a Further, this sub-rule is in
Legislative Council in a State, the Chairman accordance with Principles
of that Council and the Leader of the relating to the Status of National
Opposition in that Council shall also be Institutions (The Paris
members of the Committee. Principles), Adopted by General
Provided also that no sitting Judge of a High Assembly resolution 48/134 of
Court or a sitting District Judge shall be 20 December 1993, General
appointed except after consultation with the Comment No.2 (2002), The role
Chief Justice of the High Court of the of independent human rights
concerned State. institutions in the promotion
(2) For the purposes of selection of the non- and protection of the rights of
judicial Members of the Commission for the child, Committee on the
Protection of Child Rights, the Central Rights of the Child,
Government shall invite applications from CRC/GC/2002/2, 15
qualified candidates from the public through November 2002,
an advertisement in at least four leading Commonwealth Secretariat,
national or state dailies (two English and two National Human Rights
vernacular) and shall prepare a list of eligible Institutions Best Practice, 2001.
candidates from the applications so received (―NHRI Best Practices) and
on the basis of the eligibility criteria stated in ICHRP & OHCHR, Assessing
sub-clause (c) of sub-section (2) of section the Effectiveness of National
17. The list of eligible candidates shall be Human Rights Institutions,
submitted to the Selection Committee for its 2005.
consideration.

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(3) No appointment of a Chairperson or a

Member of the State Commission shall be
invalid merely by reason of any vacancy in
the Committee.
(4) In recommending and appointing persons
as Chairperson or Members, the Committee
and the Governor shall have regard to the
State‘s geographical, cultural, political, social
and economic diversity.232
This provision will place an
5) The names of the judicial and non-judicial express obligation upon the
persons recommended by the Committee Committee and the Governor to
shall be placed in the public domain for ensure that regard is had to
thirty days to invite objections in writing. factors that will help achieve a
plural composition.
(6) All objections should be considered by
the Committee and the Governor before the The appointment process should
recommendations and appointments are be transparent and an
finalized. opportunity should be available
to civil society and others to
(7) The appointment process shall be fair participate by exercising their
and transparent. option to file objections.

232 This provision has been derived from Section 6(8) of the Kenya National Commission on Human Rights Act, 2002.
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19. 19. Term of office and conditions of 19. Term of office and conditions of Considering that the
service of Chairperson and Members.- service of Chairperson and Members.- Chairperson and Member of the
(1) The Chairperson and every Member shall (1) The Chairperson and every Member shall
Commission will be retired
hold office as such for a term of three years hold office as such for a term of five years
judges, the retirement age should
from the date on which he assumes office: from the date on which he assumes office:
be revised. The term of office
should also be revised to five
Provided that no Chairperson or Member Provided that no Chairperson or Member years.
shall hold office for more than two terms: shall hold office for more than two terms:

Provided further than no Chairperson or any
other Member shall hold office as such after
he has attained, -
(a) in the case of Chairperson, the age of
sixty-five years; and
(b) in the case of a Member, the age of sixty
years.
Provided further than no Chairperson or any
other Member shall hold office as such after
he has attained, -
(a) in the case of Chairperson, the age of
seventy years; and
(b) in the case of a Member, the age of sixty-
five years.

(2) The Chairperson or Member may, by (2) The Chairperson or Member may, by
writing under his hand addressed to the State writing under his hand addressed to the
Government, resign his office at any time. Governor, resign his office at any time.

20. 20. Salary and allowances of Chairperson
and Members. – The salary and allowances
payable to, and other terms and conditions
of service of, the Chairperson and Members
shall be such as may be prescribed by the
State Government:
Provided that neither the salary and
20. Salary and allowances of Chairperson
and Members. – The salary and allowances
payable to, and other terms and conditions
of service of, the Chairperson and Members
shall be such as may be prescribed by the
State Legislature:
Provided that neither the salary and
It is more appropriate for the
legislature to prescribe these
conditions and this will also
promote the independence of
the Commission. A precedent
for this can be found in Article
55 of the Constitution of

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allowances nor the other terms of conditions
of service of the Chairperson or a Member,
as the case may be, shall be varied to his
disadvantage after his appointment.
21. 21. Secretary, officers and other
employees of the State Commission. -(1)
The State Government shall, by notification,
appoint an officer not below the rank of the
secretary to the State Government as the
secretary of the state Commission and shall
make available to the state Commission such
other officers and employees as may be
necessary for the efficient performance of its
functions.
(3) The salary and allowances payable to and
the other terms and conditions of service of
the secretary, other officers and employees,
appointed for the purpose of the state
commission shall be such as may be
prescribed by the State Government.
allowances nor the other terms of conditions Uganda.
of service of the Chairperson or a Member,
as the case may be, shall be varied to his
disadvantage after his appointment.
21. Secretary, officers and other The Secretary and other staff
employees of the State Commission. -(1) should be appointed in
The State Government shall in concurrence concurrence with the
with the Commission, by notification , Commission. This will facilitate
appoint an officer not below the rank of the smooth operations of the
secretary to the State Government as a full Commission.
time Secretary of the state Commission and It is necessary to specify that the
shall make available to the state Commission Secretary shall serve the
such other officers and employees as may be Commission on a full-time basis
necessary for the efficient performance of its so as to prevent additional
functions. charges.
(3) The salary and allowances payable to and
the other terms and conditions of service of
the secretary, other officers and employees The Commission should be
deputed by the Government, for the purpose empowered to appoint staff as it
of the state commission shall be such as may may deem fit.
be prescribed by the State Government. (4) In furtherance of its operational
The Commission may appoint such other independence, the Commission
administrative, technical and scientific staff shall have autonomy to
and consultants as it may consider necessary determine the terms and
and determine salaries, terms and conditions, conditions of the staff it
from time to time, for such appointments it appoints.
makes. The appointments should be fair,
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22. 24. Application of certain provisions
relating to National Commission for
Protection of Child Rights to State
Commissions. – The provisions of Section
7, 8, 9, 10, sub-section (1) of Section 13 and
Sections 14 and 15 shall apply to a State
Commission and shall have effect, subject to
the following modifications, namely :-….
23. 27. Grants by Central Government. –
(1) The Central Government shall after due
appropriation made by Parliament by law in
this behalf, pay to the Commission by way of
grants such sums of money as the Central
Government may think fit for being utilised
for the purposes of this Act.
(2) The Commission may spend such sums
as it thinks fit for performing the functions
under this Act, and such sums shall be
treated as expenditure payable out of the
grants referred to in sub-section(1).
24. 28. Grants by State Government. -(1)The
State Government shall, after due
appropriation made by Legislature by law in
this behalf, pay to the State Commission by
transparent and based on merit.
24. Application of certain provisions
relating to National Commission for
Protection of Child Rights to State
Commissions. – The provisions of Section
3A, 7, 8, 8A, 9, 10, sub-sections (1) and (2) of
Section 13 and Sections 14, 14A, 14B, 14C,
15 and 15A shall apply to a State
Commission and shall have effect, subject to
the following modifications, namely :-
27. Funds of the Commission.- (1) The It is absolutely essential to
commission shall be self-accounting and all safeguard the financial autonomy
the administrative expenses of the of the Commission in order for
commission, including salaries, allowances it to discharge its functions
and pensions payable to persons serving with effectively. The Central
the commission, shall be charged on the Government should not hold
Consolidated Fund. the reign on grants as this will
interfere with the working of the
(2) The Commission may spend such sums Commission. This provision is
as it thinks fit for performing the functions based on Article 55 of the
under this Act, and such sums shall be Constitution of Uganda
treated as expenditure payable out of the pertaining to the Uganda Human
appropriation made by the Parliament. Rights Commission.
28. Funds of the Commission.- (1) The Same as above.
commission shall be self-accounting and all
the administrative expenses of the
commission, including salaries, allowances
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way of grants such sums of money as the and pensions payable to persons serving with
State Government may think fit for being the commission, shall be charged on the
utilised for the purposes of this Act. Consolidated Fund.
(2)The State Commission may spend such
(2)The State Commission may spend such sums as it thinks fit for performing the
sums as it thinks fit for performing the functions under Chapter III, and such sums
functions under Chapter III , and such sums shall be treated as expenditure payable out of
shall be treated as expenditure payable out of the appropriation made by the Legislature.
the grants referred to in sub-section(1).

25. 32A. The Government to consult

26. 33. Directions by Central Government.-
(1) In the discharge of its functions under
this Act, the Commission shall be guided by
such directions on questions of policy
relating to national purposes, as may be
given to it by the Central Government.
(2) If any, dispute arises between the Central
Government and the Commission as to
whether a question is or is not a question of
policy relating to national purposes, the
decision of the Central Government thereon
shall be final.
Commission. –The Central or State
Government as the case may be shall consult
the National and/or State Commissions, as
appropriate, on all major policy matters
affecting children.
Deleted This provision is incongruous
with the scheme and objective of
the Act and such a provision
finds no place in any legislation
or constitutional provision
relating to human rights
institutions in India.

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27. 32B. Independence and Impartiality This provision has been

(1) The Chairperson, Members of the replicated from Section 4 of the
Commission or staff of the Commission Human Rights Commission Act,
shall serve impartially and independently and 1994 (South Africa) and Article
exercise or perform his or her powers, duties 54 of the Constitution of
and functions in good faith and without fear, Uganda. It is necessary to have
favour, bias or prejudice and subject only to an express provision to
the Constitution and the law. guarantee the independence of
(2) The Commission shall be independent the NCPCR and SCPCR.
and shall not, in the performance of its
duties, be subject to the direction or control
of any person or authority.
(2) No organ of state and no member or
employee of an organ of state nor any other
person shall interfere with, hinder or
obstruct the Commission, any member
thereof or a person appointed under section
11 and section 21 in the exercise or
performance of its, his or her powers, duties
and functions.
(3) All organs of state shall afford the
Commission such assistance as may be
reasonably required for the protection of the
independence, impartiality and dignity of the
Commission.

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PROPOSED AMENDMENTS TO THE NCPCR RULES, 2006

S.No. NCPCR Rules Proposed Amendment Comments

1. 3. Eligibility for appointment as Deleted. Rules 3 and 3A should be

Chairperson and other Members.- No deleted in view of our
person having any past record of violation of recommendation that Section
human rights or child rights shall be eligible 3A should be inserted in the Act.
for appointment as Chairperson or other Deleted
Member of the Commission .
3A. Norms for selection of Chairperson
and Members. …
2. 3A. Selection Procedure. It is necessary to set out clearly
The procedure for receiving application, the process that will be followed
objections, and selection shall be followed in to carry out the selections so as
accordance with the Guidelines provided in to obviate arbitrariness.
Schedule III.
3. 4. Member Secretary.- (1) The Member- 4. Secretary.- (1) The Secretary should be This clause should be modified
Secretary appointed by the Central appointed by the Central Government under in view of the proposed
Government under sub-section (1) of sub-section (1) of Section 11 in concurrence amendment to Section 11(1) of
Section 11. with the Commission. the CPCR Act as per which the
Central Government should
appoint the Secretary and staff in
concurrence with the
Commission.

(2) The Member Secretary shall have a (2) The Secretary shall have a tenure of three There is no ‗minimum‘ tenure
minimum tenure of three years. years even for the Chairperson and

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S.No. NCPCR Rules Proposed Amendment Comments

Members and this may become a

hurdle if the Secretary is not
performing. A fixed tenure is
more appropriate.
4. 5. Powers and duties of the Member- 5. Powers and duties of the Secretary.- (1) As per Section 11 of The
Secretary.- (1) The Member Secretary shall- The Secretary shall- Commission for Protection of
(i) – (ix) (i) – (ix) Child Rights Act, 2005, the role
of the Secretary is to ensure
(x) take up all such matters with the Ministry (x) take up all such matters in consultation efficient performance of the
of Women and Child Development for with the Commission with the Ministry of functions of the Commission, its
release of grants, creation of posts, revision Women and Child Development for release day-to-day management and
of scales, procurement of vehicles, of grants, creation of posts, revision of administration of affairs of the
appointment of staff, laying of annual and scales, procurement of vehicles, appointment Commission. It is therefore
audit report in Parliament, re-appropriation of staff, laying of annual and audit report in imperative that the Secretary
of funds, residential accommodation, Parliament, re-appropriation of funds, consult the Commission with
permitting any officer of the Commission for residential accommodation, permitting any regards to these administrative
deputation abroad and any other matter officer of the Commission for deputation matters before taking them up
requiring the approval of the Central abroad and any other matter requiring the on behalf of the Commission
Government. approval of the Central Government. with the Ministry of Women and
Child Development

5. 6. Term of office of Chairperson and 6. Term of office of Chairperson and The Rules need to reinforce that
other Members.- other Members. - (1) The Commission shall the Commission is supposed to
function full time as an independent and function full time.
(1) The Chairperson shall, unless removed autonomous body.
from office under section 7, hold office for a (2) The Chairperson shall, unless removed This clause should be modified

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S.No. NCPCR Rules Proposed Amendment Comments

period not exceeding three years, or till the from office under section 7, hold office for a in view of the proposed
age of sixty-five years, whichever is earlier. period of five years, or till the age of seventy amendment to Sections 3(2) and
years, whichever is earlier. 5 as per which the Chairperson
(2) Every Member shall, unless removed should be a retired judge of the
from office under section 7, hold office for a Supreme Court.
period not exceeding three years, or till the This clause should be modified
age of sixty years, whichever is earlier. in view of the proposed
(3) Notwithstanding anything contained in (3) Every Member shall, unless removed amendment to Section 5 of the
sub-rule (1) or sub-rule (2), - from office under section 7, hold office for a CPCR Act.
(a) a person who has held the office of period of five years, or till the age of sixty-
Chairperson shall be eligible for re- five years, whichever is earlier.
nomination, and
(b) a person who has held the office of a (4) Notwithstanding anything contained in
Member shall be eligible for re-nomination sub-rule (1) or sub-rule (2), -
as a member or nomination as a (a) a person who has held the office of
Chairperson: Chairperson shall be eligible for re-
nomination, and
Provided that a person who has held an (b) a person who has held the office of a
office of a Member for two terms, in any Member shall be eligible for re-nomination
capacity shall not be eligible for re- as a member or nomination as a
nomination as Chairperson or, as the case Chairperson:
may be, as Member.
(4) If the Chairperson is unable to discharge Provided that a person who has held an
his functions owing to illness or other office of a Member for two terms, in any
incapacity, the Central Government shall capacity shall not be eligible for re-
nominate any other Member to act as nomination as Chairperson or, as the case

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S.No. NCPCR Rules Proposed Amendment Comments

Chairperson and the Member so nominated
shall hold office of Chairperson until the
Chairperson resumes office or till the
remainder of his term.
(5) The Chairperson or a Member may, by
writing under his hand addressed to the
Central Government, resign his office at any
time.
(6) A vacancy caused by death, resignation or
any other reason shall be filled-up by
nomination within ninety days from the date
of occurrence of such vacancy.
may be, as Member. The sub-clauses (5) and (6)
(5) If the Chairperson is unable to discharge should be modified in view of
his functions owing to illness or other the proposed amendments to
incapacity, the President may, by notification, Section 4 as per which the
authorise one of the Members to act as appointing authority is the
Chairperson and the Member so authorised President of India.
shall hold office of Chairperson until the
Chairperson resumes office or till the
remainder of his term.
(6) The Chairperson or a Member may, by
writing under his hand addressed to the
President, resign his office at any time.

(7) A vacancy caused by death, resignation or

any other reason shall be filled-up by
nomination within ninety days from the date
of occurrence of such vacancy.
6. 6B. Selection Committee for appointment Deleted The composition of the
of Chairperson and Member. – The Selection Committee should be
Selection Committee shall consist of the specified in the parent Act in
Chairperson who shall be the Minister-in- Sections 3(2) and 17(2). It is
charge of Ministry, the Secretary of the imperative to do so as most
Ministry and one independent expert of State Governments have
eminence in the field of child rights, to be constituted Selection
nominated by the Chairperson of the Committees consisting entirely
Selection Committee. of the executive in violation of

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international standards which

7. 6C. Procedure for appointment of
Chairperson or Member. –(1) The
Selection Committee constituted under rule
6B shall consider all the applications received
by the Ministry.
6C. Procedure for appointment of
Chairperson or Member. –(1) The
Selection Committee constituted under rule
6B shall consider all the applications received
by the Ministry in accordance with the
procedure laid down in Part A of Schedule
III.
(2) The Ministry shall perform a preliminary
screening of the applications to confirm
whether all the applicants have satisfied the
eligibility criteria specified sub-section (2) of
Section 3. Application of those candidates
that do not meet the eligibility criteria can be
rejected and reasons for rejection shall be
recorded in writing on each of the
application and maintained as per Form No.
2 in Schedule III.
(3) The Ministry shall submit a summary
report of the names of the rejected
candidates and the reasons for rejecting their
applications to the Selection Committee for
state appointments must not be
solely determined by the
executive.
The procedures for appointment
in the existing rules are vague
and sketchy. In keeping with the
recommendations of the Delhi
High Court and the Supreme
Court, objective procedures
must be prescribed in order to
ensure fair and transparent
appointments.
The basis and scope of a
preliminary scrutiny by the
Ministry should be specified in
the Rules. The reasons for
rejection of candidates should
also be recorded so as to ensure
a fair scrutiny.

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S.No. NCPCR Rules Proposed Amendment Comments

(2) The application fulfilling the eligibility
criteria, under Section 3, rule 3 and 3A, shall
be scrutinized by the Selection Committee.
(3) The Selection Committee, shall, after due
consideration and having regard to criteria
specified in sub-section (2) of Section 3,
decide about the suitability of the applicants
for holding the post of Chairperson or
Member, as the case may be.
(4) The applicant as selected by the Selection
Committee shall be notified by the Ministry.
its consideration. Guidelines for scrutinizing
(4) The applications fulfilling the eligibility applications and weighing the
criteria, under Section 3, shall be scrutinized relative merit of candidates must
by the Selection Committee in accordance also be specified.
with the procedure and guidelines laid down
in Parts A and B of Schedule III.
(3) The Selection Committee, shall, after due
consideration and having regard to criteria
specified in sub-section (2) of Section 3 and
sub-section (3) of Section 4, , and having
regard to the objections under sub-section
(5) of Section 4, decide about the suitability
of the applicants for holding the post of
Chairperson or Member, as the case may be.

4) The applicant as selected by the Selection

8. 7. Salaries and allowances. – (1) Save as
otherwise provided in section 6, the
Chairperson shall be paid salary equivalent to
the salary of the Secretary to the
Government of India and every other
Member shall be paid salary equivalent to
that of a Additional Secretary to the
Government of India.
Committee shall be appointed by the
President under his hand and seal.
7. Salaries and allowances. – The non-
judicial Members shall be paid salary
equivalent to the salary of the Secretary to
the Government of India.
The judicial members will
receive salaries and allowance in
accordance with their governing
rules. The status of the Members
has been restored to the status
accorded to them prior to the
Second Amendment to the
NCPCR Rules in 2014.

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S.No. NCPCR Rules
Provided that where the Chairperson or any
other Member is a retired Government
servant, Semi-Government body, public
sector undertaking or recognized research
institution, the salary payable together with
the pension or pensionary value of the
terminal benefits, or both, received by him
shall not exceed to the last pay drawn.
(2) The salary and allowances payable to, and
the other terms and conditions of service of
the Member-Secretary and the other officers
and other employees appointed for the
purpose of the Commission shall be such as
may be determined by the Central
Government from time to time.
(3) If the Chairperson or a Member is in
service of the Central Government or a State
Government, his salary shall be regulated in
accordance with the rules applicable to him.
9. 17. Functions of the Commission.-
(a) – (h)
Proposed Amendment
(2) Deleted
Deleted
17. Functions of the Commission.(a) – (h)
(i) refer cases and issues arising in States
having a State Commission for Protection of
Child Rights to the State Commission.;
(j) make visits, conduct public hearings or
meetings in the districts at regular intervals.
Comments
This clause should be deleted in
view of sub-sections (3), and
proposed sub-sections (4) and
(5) of the Act.
The presence of employees of
the government of India on the
Commission is incongruous with
international standards that
stress on independence of
human rights institutions.
This clause will enable the
Commission to exercise its
jurisdiction in an appropriate
and effective way.
This clause will enable the
Commission to reach out to all
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S.No. NCPCR Rules Proposed Amendment Comments

parts of the country and enhance

its accessibility.
10. 18. Procedure for transaction of business. Deleted The Commission should be
– empowered to regulate its own
(1) – (7) procedure in accordance with
the proposed amendment to
Section 10(4).
SCHEDULE III

PART A. PROCEDURES FOR SELECTION AND APPOINTMENT OF THE CHAIRPERSON AND MEMBERS
OF THE NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS

1. Inviting Applications

i The Ministry of Women and Child Development shall advertise the vacancies, specifying the conditions of eligibility, the
mode of selection, the number of vacancies to be filled.
ii The Ministry should issue an advertisement in at least two national daily newspapers and two Hindi newspapers to invite
applications from interested candidates. In addition, the Ministry should also issue an advertisement on its official website.

iii Content of the Advertisement: In the advertisement, the Ministry should detail the eligibility criteria provided under the
CPCR Act such as the minimum number of years of relevant experience, work experience, integrity and standing of the
candidate, and the competency of the candidate to perform the functions and exercise the powers as stipulated under the Act.

The advertisement should clearly state the last date for submission of applications. There should be a minimum gap of three
weeks between the advertisement/announcement and the last date for submitting the applications.

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iv. The applicants shall be required to submit an affidavit stating that they have not been convicted and sentenced to
imprisonment for an offence involving violation of human rights or child rights and have also not been removed or dismissed
from service of the Central Government or State Government or a body or corporation owned or controlled by the Central
Government or State Government.

2. Official Registration of Applications

i The Ministry shall maintain a register and enter details, such as application number, name of the applicant and note the date
on which the Ministry has received the application in Form No.1.

ii The Ministry shall record the number of applications received for each post separately in the register.

iii The Ministry shall not open any of the sealed applications until the last date of submission is over. The applications received
shall be kept in the safe custody of an officer not below the rank of the director who shall be appointed for the above
process. The concerned officer shall update the number of applications received on a day- to-day basis in the register.

iv The Ministry shall not accept any applications after the last date for submission of applications is over.

v The applications shall be opened in the presence of two other appointed officers who shall cross check with the register
referred to in Para 2(i) whether any applications have been misplaced. The reasons/circumstances for misplacement should
be recorded and suitable action taken against the person found to have been negligent in handling the same.

vi The applications received and opened shall be placed in a separate file.

3. Preliminary Screening of Applications and Shortlist of Candidates

(i) The Ministry shall perform a preliminary screening of the applications to confirm whether all the applicants have met the
eligibility criteria with respect to the qualifications specified in the advertisement.

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(ii) Application of those candidates that do not meet the eligibility criteria can be rejected and reasons for rejection shall be
recorded in writing on each of the application and maintained in a separate file titled ‗Rejected Applications‘.

(iii) A summary report of the names of the rejected candidates and the reasons for rejecting their applications shall be prepared
and submitted officially to the Selection Committee for review in Form No.2. The grounds for disqualification should be
recorded and open to scrutiny by the Selection Committee.

(iv) On the basis of such screening, the Ministry shall prepare a list of candidates who fulfill the minimum qualifications and
submit this to the Selection Committee. This shall also be placed on the website as per the format prescribed in Form No. 4
(v) The Selection Committee shall finalize a short list within one month from the last date of submission of applications.

(vi) The Ministry shall publish the list of candidates short listed by the Selection Committee on its website. They should also
indicate that the selection is subject to the objections process. Objections may be filed as per the format prescribed in Form
No.4.

4. Call for Objections

(i) The Ministry shall call for objections relating to child rights violations, human rights violations, past criminal record,
removal from office of any State or Central Ministry or any other objection, along with evidence to support such objection
which may render the short listed candidates unfit to be appointed to the Commission in Form No.3.

(ii) Objections shall be entertained for three weeks from the date of publication on the website of the Ministry.

(iii) The Ministry, on receiving any objections against the candidates short listed shall conduct an inquiry under the direction
and supervision of the Selection Committee, within a period of three weeks from the date of receiving such an objection. If
the inquiry results in a candidate being rendered unfit for selection to the Commission, the Ministry shall make a report and

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submit it to the Selection Committee. Records of the inquiry and other findings shall be maintained in a separate file. A
copy of the findings of the inquiry shall be given to the rejected candidate, if requested.

5. Procedures after Selection

(i) The Ministry shall release the list of selected candidates and publish it through a notification in the Official Gazette.
(ii) Selected candidate shall take an oath of office in the presence of the President before they assume office set out in Form
No.4.

Form No.1

REGISTER OF APPLICATIONS

SL.NO NAME OF THE CONTACT APPLICATION POST DATE OF RECEIVING NAME OF THE RECEIVING
APPLICANT DETAILS NUMBER APPLIED THE APPLICATION OFFICER(SIGNATURE)
FOR
1.

Form No.2

SUMMARY OF REJECTION OF COMPLAINTS

Name of the Candidate:

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Brief Profile of the Candidate:

Reasons for Rejection:

Signature and Seal of the Ministry

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Form No. 3

SUMMARY TABLE OF ELIGIBLE CANDIDATES

Sl. Name of the Educational Number of years of Link to CV of candidate Remarks

No Applicant Qualification experience (link to the uploaded CV
(specify any to be pasted here)
specialization)
1.
2.

Form No.4

FILING OF OBJECTIONS

1. Objections shall be clear, legible and not vague, anonymous, pseudonymous.

2. Objections shall clearly provide supporting documentary evidence
3. Objections have to be genuine, not trivial or frivolous

To Date

Designation of the officer

Name of the concerned Ministry

Dear Sir/Madam

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Subject: Objection to the Selection of Mr/Ms___________ for the appointment to the Commission for Protection of
Child Rights

I Name of the Person s/o/ w/o/d/o__________ aged _____ years have seen the list of shortlisted candidates to be appointed to the
Commission for Protection of Child Rights. Mr/Ms_______________ who has been selected for the interview has
committed_________________ violation /been removed from office/ on date. (Narrate the facts in brief). Please find attached
documents supporting the above objections.

1.
2.
3.

Yours Sincerely
Name, Signature, Designation

Form No. 5

SUMMARY TABLE OF CANDIDATES SHORTLISTED BY THE SELECTION COMMITTEE

Sl. No Name of the Educational Number of years of experience Link to CV of candidate Remarks
Applicant Qualification (copy of link to be pasted here)
(specify any
specialization)
1.
2.

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Form No. 6

APPLICATION FORM

Specify the position you are applying for:

o Chairperson
o Member
o Both

If you are applying for the position of Member, tick the fields that apply. (You can tick a maximum of three fields)
o Primary and secondary education;
o Child health, care, child rights or child development,
o Juvenile justice or care of marginalized children or children with disabilities;
o Elimination of child labour or children in distress;
o Child psychology or sociology; and

1. Personal Data
Name
(in block letters)
Permanent Address

Telephone Number

Mailing address

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Date of Birth

2. Academic Qualification
Qualification Specialization Institution Year

3. Present Organization
Name

Designation

Nature of work

4. Application for Second Term in the Commission

Year Tenure Nature of Work done in previous tenure

5. Previous Positions Held (includes previous positions in CWC, JJB or other Commissions)

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Year Organization/Institution Position Nature of work done

6. Qualifications under the CPCR Act.

Specifications under Section 3(2) Years of Describe the experience/work done in the specific
experience area (Further information can be given in the
additional sheets)
Experience in education

Child health, care, child rights or

development
Juvenile justice
Care of neglected or marginalized children

Children with disabilities

Elimination of child labor
Children in distress,

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Child psychology or sociology

7. Please indicate five instances wherein you have attempted to protect and promote child rights.
1

2
3

4
5

8. Publications

Year of Publication Book/Article

9. Workshops/Paper presentations (List the workshops/conferences attended or conducted or papers presented)

Year Audience Topic

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10. Other Information

a. Special Interests

b. Key Achievements

c. Any association with NGOs/other

Institutions or affiliation to professional
organizations

d. Fellowships/Awards/Honors

e. Leadership demonstrated

11. References (Two persons)

Name Designation, Institution, Contact details

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12. How would you seek to protect, promote and monitor the rights of children if given an opportunity to work with the
Commission (answer in 250 words)

FORMAT FOR AFFIDAVIT TO BE SUBMITTED BY CHAIRPERSON/MEMBER

ON APPOINTMENT TO THE COMMISSION

I, ____ son of /daughter of/ ____ resident of ____, do hereby solemnly affirm and declare as under:-
1. That I have applied for the position of Chairperson/Member of the State Commission for Protection of Child Rights.
2. That I have not been convicted and sentenced to imprisonment for an offence involving a violation of human rights or child rights.
3. I am not a Member of Parliament or Member of Legislature of any State/Union Territory or member of any political party on the
date of advertisement of the post.
4. If selected, I shall not hold office of profit or pursue any profession or carry on any business other than my office as Chairperson
or Member, NCPCR.
DEPONENT
VERIFICATION

Verified that the contents of my above affidavit are true to best of my knowledge and belief and nothing concealed therein.
Verified at ____ on ____

DEPONENT
Form No.7

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OATH TO BE TAKEN BY CHAIRPERSON AND MEMBERS ON APPOINTMENT TO THE COMMISSION

I, [name], do swear in the name of god/solemnly affirm that I will faithfully execute the office of the National Commission for Protection
of Child Rights and discharge the statutory functions of and will to the best of my ability preserve, protect and defend the rights of the
child in accordance with the Constitution of India, the UN Convention on the Rights of the Child, and the domestic laws pertaining to
children. I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or
favour, affection or ill-will and I will devote myself to the service and the wellbeing of all children as well as the effective protection,
promotion and monitoring of child rights. I will faithfully discharge the duty upon which I am about to enter and will uphold sovereignty
and integrity of India. http://www.upsc.gov.in/recruitment/recruitm.htm - PageTop

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