Law of Human Rights

COURSE: B.A.LL. B(H)

Powers and Importance of the NHRC

SUBMITTED TO SUBMITTED BY
Ishani Chaudha Naman Jain
(ASSISTANT PROFESSOR) 01720603818
4thYEAR

Department of Law
To deny people their human rights is to challenge their very humanity.
— Nelson Mandela
About
Throughout human history, human rights as a concept is evolving constantly. These rights are
associated with the laws, customs and religion from a long time. People’s duties, rights and
responsibilities are addressed in five oldest written sources which are the Hindu Vedas, the
Babylonian Code of Hammurabi, the Bible, the Analects of Confucius and the Quran. These
rights are provided in different ways in different countries. In India, these rights are
incorporated in the Constitution whereas in the UK these rights are provided through
precedents.
Human rights are the basic rights and freedoms that all people are entitled to everywhere.
Human rights also put the responsibility on the person to not to violate another person’s human
rights. Human rights are of various types such as economic rights, social and civil rights,
political and cultural rights. For the implementation and protection of human rights, not much
codification was done prior to the second world war.

Development of human rights

Developments in religious, cultural, philosophical and legal areas lead to the development of
human rights. Several ancient documents include the concept of human rights. Ashoka the
Great issues a document between 272-231 BC known as the “Edicts of Ashoka” and another
document was drafted by Muhammad which is known as the “Constitution of Medina” of 622
AD.
However, human rights became a universal phenomenon as it gained importance since World
War II because millions of people lost their lives. Seeing this sad state of affairs, the United
Nations took a pledge to provide a measure for the fundamental freedom to all and universal
respect to all the people and to their rights. For this, the Universal Declaration of Human Rights
was adopted by the United Nations on December 10, 1948. It was seen as a positive sign
towards the promotion and protection of human rights.
Human rights are the rights related to life, liberty, equality, and dignity of the individual defined
in Section 2(d) of the Protection of Human Rights Act, 1933 1. These rights are guaranteed by
the Constitution of India and are incorporated in the International Covenants such as right to
life, freedom of speech, right to religion as well as right to voting. and are enforceable by the
Indian Courts.
Established on October 12, 1933, the National Human Rights Commission aims to protect and
promote human rights. The Protection of Human Rights Act,19332 contains a statue which is
in accordance with the Paris Principles that were adopted at an international workshop on
national institutions for the promotion and protection of human rights which was held in Paris
on October 1991. It was endorsed by the General Assembly of the United Nations in
its Resolution 48/1343 of December 20, 1933. The National Human Rights Commission
incorporates India’s concern for the promotion and protection of human rights.
A set of internationally recognized standards are provided in the Paris Principles evaluate the
independence, credibility and effectiveness of the National Human Rights Institutions. In order
to be fully effective, the National Human Rights Institutions should have an official order to
deal with all types of human rights. They should have a proper and transparent selection

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https://www.indiacode.nic.in/handle/123456789/15709?locale=en
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supra
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https://www.coe.int/en/web/commissioner/-/paris-principles-at-25-strong-national-human-rights-
institutions-needed-more-than-ever
process. The National Human Rights Institutions must have sufficient access to resources and
the institution should be independent in law as well as practice.
In India the National Human Rights Commission was established through an Act of Parliament
in the year 1992 by the Protection of Human Rights Act, 1993 and sits at its headquarters, in
New Delhi, India for protection and promotion of Human Rights in India. This is the most
important development in India. This development is the result of an ordinance that was
promulgated by the President. For 28 years it has served the needs of the people of India, to
protect the ‘rights relating to life, liberty, equality and dignity of the individual guaranteed by
the Constitution or embodied in the International Covenants.
The Chief Minister’s Conference was summoned by the then Prime Minister R.
Venkatraman in 1992 in order to develop the modalities of setting up the Human Rights
Commissions. Various State Human Rights Commissions have also been set up by different
State Governments within their states
Structure of the Commission
• National Human Rights Commission is a multi-member body which consists of a
chairman and seven other members. Out of the seven members, three are ex-officio
member.
• President appoints the Chairman and members of National Human Rights Commission
on recommendation of high-powered committee headed by Prime Minister
• The Chairperson and the members of the National Human Rights Commission are
appointed for 5 years or till the age of 70 years, whichever is earlier.
• They can be removed only on the charges of proved misbehaviour or incapacity, if
proved by an inquiry conducted by a Supreme Court Judge.
• Commission also has five Specialized Divisions i.e., Law Division, Investigation
Division, Policy Research & Programmes Division, Training Division and
Administration Division.
• The chairman and the members of State Commission are appointed by the Governor in
consultation with the Chief Minister, Home Minister, Speaker of Legislative Assembly
and Leader of the Opposition in the State Legislative Assembly.
Appointment of the Members in the National Human Rights Commission
The appointment and removal of the commission is done on the basis of Sections 4 and 54 of
the Act. The provisions laid thereunder are as follows:
Appointment of Members: The President of India shall make the following appointments,
with consideration and recommendations from a ‘Committee’ formed under this Section. This
Committee shall consist of the following representatives:

• Prime Minister as the Chairperson;

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

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

1. Chairperson

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 2. 1 Member [if still a sitting judge, the appointment has to be with prior consultation
with the Chief Justice of India].
3. 1 Member [if still a sitting judge, the appointment has to be with prior consultation
with the Chief Justice of India].
4. 2 Members

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

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

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

• On the grounds of proved misbehaviour and/or incapacity of such member;

• If such a member is adjudged as an insolvent
• If such member engages, during his tenure with the National Human Rights
Commission, in any other paid employment outside his office of duty
• If such member cannot continue their term due to infirmity of body or mind;
• If such a member is convicted and sentenced to imprisonment for an offense that
leads to questioning such member’s moral standing.
At the State level of the HRC, the Governor has the authority and control to appoint and remove
the members of the State Human Rights Commission, in consultation with the same positions
of the government as stated for the National Human Rights Commission, but at the state level
of every state.

Functions of the National Human Rights Commission

The National Human Rights Commission, along with its basic motive of safeguarding the
wellbeing and rights of every individual in the country, has certain niche functions, which are
enumerated under Chapter III of the Act.
General Functions: The National Human Rights Commission. amongst other facets of its
existence, has the authority to undertake the following:

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

Powers related to Inquiries: In inquiring into the complaints filed under the Act, the
Commission is granted powers of a Civil Court in trying a suit as per the directions of the Code
of Civil Procedure, 19085, in specific matters as prescribed to them, including but not limited
to:

• Summoning and examining witness under oath

• Production of documents
• Receiving affidavits as proofs
• Issuing orders for examining witnesses and documents

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

Powers related to Investigation: The National Human Rights Commission has the power to
utilize agencies in undertaking investigations in relation to any inquiry filed with them, after
due permission from the Central or State Government.
To satisfy itself with the quality and authenticity of data received, the National Human Rights
Commission can also make any inquiry, and examine any witness as it requires, to fulfil such
a need. Further, if the National Human Rights Commission considers it necessary to examine
any individual, and is of the opinion that the reputation of such individuals might serve as a
bias either for or against them in a trial, it has the authority to give such individuals an
opportunity to defend themselves, and to be heard in the proceedings.

Limitations of the National Human Rights Commission

Although being a governmentally associated principal advocate for human rights in our
country, the National Human Rights Commission does have certain misgivings that limit the
authority it seems to have.
• Insufficient powers for rendering relief: The recommendations given by the National
Human Rights Commission are not binding on any authority, be it legislative or
executive. The Commission cannot penalize any authority or department for not
following its orders or directions. The National Human Rights Commission cannot

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

In 1999, a journalist by the name of Shivani Bhatnagar was murdered, which led to the outcry
of a scandal as the person charged with her murder was an IPS officer, Ravi Sharma. This case
implicating a high-ranking officer was reported to the National Human Rights Commission,
but was rejected on no explicit grounds. This rejection of a case with clear disregard for human
life, brought up varied questions on the working and existence of the National Human Rights
Commission. The National Human Rights Commission was termed as ‘useless’ and ‘not adept’
to handle situations of sensitive government matters.
Another ruckus was created, when the Chairman of the National Human Rights Commission,
the then Chief Justice of India in 2011, was implicated of owning assets disproportionate to his
income. K.G. Balakrishnan J, was questioned and was asked to resign by many well-known
jurists and judges of the Apex and other high courts. Further, his son, in the face of all the
criticism, had to resign from his political party.

Recommendations
In order to make National Human Rights Commission more effective, its powers could be
increased in various ways to increase its effectiveness and efficiency in delivering justice to
the victims. The commission should be empowered to provide interim and immediate relief
including monetary relief to the victim. In addition, the commission should be empowered to
punish the violators of human rights, which may act as deterrent to such acts in the future. The
interference of the government and other authorities in the working of commission should be
minimum, as it may influence the working of commission. Therefore, the National Human
Rights Commission should be given power to investigate into the cases related to human rights
violation by the members of the armed forces.
• There is need for complete revamping of National Human Rights Commission to make
it more effective and truly a watchdog of human right violations in the country.
• National Human Rights Commission efficacy can be enhanced by government if
commission decisions are made enforceable.
• There is need to change in composition of commission by including members from civil
society and activists.
• National Human Rights Commission needs to develop an independent cadre of staff
with appropriate experience.
• Many laws in India are very old and archaic in nature by amending which government
can bring more transparency in regulations.
• To improve and strengthen the human rights situation in India, state and non-state actors
need to work in tandem. More powers: Its decisions should be made enforceable by
the government. The efficacy of commissions will be greatly enhanced if their decisions
are made enforceable by the government.
• Armed forces: The definition should be restricted to only army, navy, and air force.
Further, even in these cases the Commission should be allowed to independently
investigate cases of violation of rights.
• Commission’s membership: Members of National Human Rights Commission s
should include civil society human rights activists, etc. rather than ex-bureaucrats.
• Amending law: Misuse of laws by the law enforcing agencies is often the root cause
of human right violations. So, the weakness of laws should be removed and those laws
should be amended or repealed if they run contrary to human rights.
• Independent Staff: National Human Rights Commission should have its independent
investigating staff recruited by itself, rather than the present practice of deputation.

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