TOPIC: HUMAN RIGHTS INSTITUTUION IN INDIA
SUBJECT: HUMAN RIGHTS LAW
SUBMITTED TO: SUBMITTED BY:
Dr. Deepan pandey Iksha subba
Roll.no :15GLB 051
Semester: 7th semester
Table of contents
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● INRODUCTION
● THE PROTECTION OF HUMAN RIGHTS ACT 1993
● NATIONAL HUMAN RIGHTS COMMISSION(NHRC)
● STATE HUMAN RIGHTS COMMISSION(SHRC)
● HUMAN RIGHTS COURTS IN DISTRICT
● EVALUTION OF THE ACT
● CASES
● CONCLUSION
● REFERENCES
INTRIDUCTION
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The idea of human rights is very pristine and sacrosanct. If rights are scrapped off a man, then
what remains is a mere animal existence though nowadays rights regime is extended to animals
too. Recognition of Human Rights as sacrosanct and inviolable, in both domestic and
international law only ensures passive legality does not warrants its real existence. To convert a
black and dead letter law which has no real existence into a reality demands an institution to
enforce and monitor the implementation of the right in the modern world. The idea of the
creation of an impartial institution of human rights in the States was initiated by the UNESCO in
as early as in 1946. The Secretariat in the Memorandum Supervision and Enforcement of Human
Rights in 1947 had suggested for the creation of such a body of the states. In 1966 the General
Assembly of the United Nations adopted a resolution for considering the advisability of the
proposal for the creation of a national commission on human rights to perform certain functions
pertaining to the observance of the Covenant on Civil and Political Rights and the Economic,
Social and Cultural Rights. The Commission of Human Rights was asked in 1970 to go through
this aspect of the creation of a national commission and commission responded that this question
should be decided by each government in the light of traditions and institutions of each country.
The Commission in 1978 reiterated its recommendation, but states paid little heed to this The
World Conference on Human Rights in 1993 realizing the importance of such an institution or
commission, stated that ‘the World Conference on Human Rights urges Governments to
strengthen national structures, institutions, and organs of society which play a role in promoting
and safeguarding human rights. Since the adoption of the ‘Vienna Declaration and Programmed
of Action adopted by the World Conference, a number of countries have established such
institutions. The majority of existing national institutions may be grouped into two broad
categories: Human Rights Commissions and Ombudsman. In addition to the above there are
specialized national institutions which function to protect the rights of vulnerable groups. In
those cases where institutions have been established by the Governments, they enjoyed an
important degree of autonomy from the executive and legislature and they also took full account
of international human rights standards which were applicable to the country. However, the role
given to such institutions has too often either not been sufficiently substantial or has been
neglected or given low priority.
The Protection of Human Rights Act, 1993.
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India had shown a keen interest in the past in establishing or strengthening a national institution
for the promotion and protection of human rights before the 3rd Committee of the General
Assembly. It introduced a draft resolution wherein it emphasized the importance of the integrity
and independence of such national institutions. In the draft resolution, it also requested the
Security General of the United Nations to submit a report to the General Assembly in 2 years
regarding the functioning of the various kinds of national institutions and their contribution
towards implementing human rights.
In early 1990s India felt the need of establishing a commission as a positive response to the
criticisms of the foreign Governments in the context of political unrest and violence in Punjab,
Jammu Kashmir, North-East, and Andhra Pradesh In addition to the pressure from the foreign
countries, the pressure was added from the domestic front as well for the creation for a National
Human Rights Commission, because of the awareness among the people for the protection of
human rights. All this led the Government to enact a law to establish a Human Rights
Commission.
Human Rights Commission Bill was introduced in the Lok Sabha on May 14, 1992. The Bill was
referred to the Standing Committee of the Parliament on Home Affairs. However, in view of the
urgency of the Commission due to the pressure from the foreign countries and from the domestic
front, the President of India on September 28, 1993, promulgated an “Ordinance” for the creation
of a National Human Rights Commission (NHRC) and Commissions at State Level
Accordingly, the National Human Rights Commission was established on October 12, 1993
After having made certain amendments in the ordinance, the Protection of Human Rights Bill
was passed by both the Houses of the Parliament to replace the Ordinance. The Bill became an
Act after it received the assent of the President on January 8, 1994, which is known as
the Protection of Human Rights Act, 1994 The purpose of the enactment is laid down in the
Preamble of the Act, i.e. to provide for the constitution of a National Human Rights Commission
State Human Rights Commission in States and Human Rights Courts for better protection of
human rights and for matters connected therewith or incidental thereto. Section 2(d) of the Act
defined the expression human rights by stating that human rights mean the rights relating to life,
liberty equality and dignity of the individuals guaranteed by the Constitution or embodied in the
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International Covenants and enforceable by courts in India. The above definition restricts the
scope of the functioning of the NHRC. India ratified the two Covenants International Covenant
on Civil and Political Rights and the Economic, Social and Cultural Rights, but these Covenants
are not directly enforceable as law before the Indian Courts. The references to these Covenants in
the Act are purely superficial as decisive words are enforceable by Courts in India. These words
limit human rights strictly to the fundamental rights embodied in Part III of the Constitution
which are enforceable by courts in India. The fact is that they are more limited than human rights
in the Covenants. Hence, some criticize this point as the purposes of creating the commission
gets frustrated as the human rights which are embodied in the constitution did not need any
special enforcement as for their enforcement High Courts and Supreme Court existed but the
human rights which are not explicitly recognized under the constitution need their recognition
and enforcement but they are kept out of the field of the NHRC. The Act sets up a National
Human Rights Commission and the State Human Rights Commissions in the States and the
Human Rights Courts in the districts.
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National Human Rights Commission (NHRC)
Chapters II-IV of The Protection of Human Rights Act, 1993, deals with the National Human
Rights Commission.
1. Constitution
Chapter II of the Act deals with the Constitution of NHRC. Section 3 of the Act lays down that
the Central Government shall constitute a body to be known as the National Human Rights
Commission which shall have eight members and will be headed by a Chairperson who has been
the former Chief Justice of the Supreme Court. The other members of the Commission may be
sitting or retired judge of the Supreme Courts, a serving or a retired Chief Justice of the High
Court, two prominent persons having knowledge or practical experience in the sphere of human
rights and the Chairpersons of the National Commission for Minorities, the Scheduled Castes
and Scheduled Tribes and women. The Current Chairperson is Hon’ble Mr. Justice H.L. Datta.
The Chairperson and the members of the Commission shall be appointed by the President on the
recommendation of a six-member Committee headed by the Prime Minister. The Chairperson
and the members shall hold office for a period of five years, from the date on which they enter
upon their office. They shall be eligible for re-appointment for another term. A person can serve
at the Commission until the age of 70. The Chairperson or any other member of the Commission
may be removed from his office by an order of the President on the ground of proved
misbehavior or incapacity after the Supreme Co on reference being made to it by the President,
has on an inquiry reported that the Chairperson or such other member ought on any such ground
to be removed. The President may remove from the office of the Chairperson or of any other
Member if.
1. He is adjudged an insolvent
2. He is engaged during his term of office in any paid employment outside the duties of his office
3. He has become unfit to continue by reason of infirmity of mind or body
4. He has been convicted and sentenced to imprisonment of an offence which in the opinion of
the President involves moral turpitude
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The Chairperson or any member may by notice in writing under his hand addressed to the
President of India, resign his office. According to section11 of the Act, the Central Government
shall make available to the Commission an officer of the rank of the Secretary to the Government
of India who shall be the Secretary-general of the Commission and such police and investigative
staff as may be necessary for the efficient performance of the functions of the Commission.
2. Powers and Functions.
The functions of the Commission are laid down under Section 12 of the Act –
The Commission shall enquire Suo moto or on a petition presented to it by a victim or any
person on his behalf into complaints of (a) violation of human rights or abatement thereof or (b)
negligence in the prevention of such violation by a public servant. The Commission took Suo
moto cognizance of the communal disturbances in Gujarat commencing with Godhra Tragedy on
February 27, 2002, and its aftermath.
The Commission may intervene in any proceeding involving any allegation of violation of
human rights pending before a court with the approval of such court.
The Commission shall visit under intimation to the State Government any jail or any other
institution under the control of the State Government where persons are detained or lodged for
purposes of treatment reformation or protection to study the living conditions of the inmates and
make recommendations thereon.
The Commission shall review the safeguards provided by or under the Constitution or any law
for the time being in force for the protection of human rights and will recommend measures for
its effective implementation.
The Commission shall review different factors which inhibit the enjoyment of human rights like
terrorism and then recommend remedial measures to curb it.
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The Commission shall study treaties and other international instruments on human rights and
make recommendations for their effective implementation. The Commission shall also undertake
and promote research in the field of human rights.
The Commission shall spread human rights literacy among various sections of society through
different mediums.
The Commission shall perform any other function as it may consider necessary for the
protection of human rights.
The detailed powers of the Commission are provided under section 13 of the Act. All these
powers which are specifically given are indispensable for any court to decide the cases. These
powers are similar to that of powers of civil court, and even a person is made liable under
specific provisions of IPC if he furnishes false evidence.
The powers of the NHRC is not restricted to enquiry but some special investigative powers are
also given to the NHRC. Section 18 confers some special powers to the commission.
The Commission may after completing the inquiry recommend to the appropriate Government or
authority to take action against the person concerned where the inquiry discloses the violation of
human rights.
It may also recommend the appropriate Government or authority for grant of necessary interim
relief to the victim or his family members. The Commission may approach the Supreme Court or
the concerned High Court to pass such directions orders or writs as that Court may deem
necessary.
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3.functioning
The Commission in accordance with the power conferred to it by subsection (2) of section 10
of the Act made the regulations which are called National Human Rights Commission
(Procedure) Regulations 1994. These Regulations got replaced by NHRC (Procedure)
Amendment Regulations 1996. All complaints in whatever form received by the commission are
registered and assigned and placed for admission as per the special or general directions of the
Chairperson before a Single Bench constituted for the purpose not later than one week of receipt
thereof. If the Single-member Bench dealing with the case either for admission or final disposal,
having regard to the importance of the issues involved is of the opinion that the case should be
heard by a Bench of not less than two members he/she may refer the case to a Bench of two or
more members as may be constituted by the Chairperson. No fee is charged on making
complaints.
The Commission has a power to dismiss a complaint in limina. Upon admission of a complaint,
the Chairperson/commission shall direct whether the matter shall be set down for inquiry by it or
should be investigated into. On every complaint on which a decision is taken by the
Chairperson/Commission to either hold an inquiry or investigation the Secretariat shall call for
reports/ comments from the concerned Government/Authority giving the latter a reasonable time
thereof. On receipt of the comments of the concerned authority a detailed note on the merits of
the case is prepared for consideration by the Commission. The directions and recommendations
of the Commission are communicated to the concerned Government/authority and the petitioner
as provided for in Sections 18 and 19 of the Act.
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State Human Rights Commission (SHRC)
Under Chapter V the Act provides for setting up of the State Rights Commission in States.
1. Constitution
SHRC is to consist of a Chairperson who has been a Chief Justice of a High Court; one member
who is or has been a Judge of a High Court one member who is or has been a District Judge in
that State with a minimum of 7 years’ experience as District Judge and one member to be
appointed from amongst persons having knowledge of or practical experience in in matters
relating to human rights (s.21) The Chairperson and other members of the Commissions shall be
appointed by the Governor on the recommendation of a Committee consisting of the Chief
Minister (the Chairperson), and the three members i.e. Speaker of the Legislative Assembly,
Minister-in-charge of the Department of Home in that state and the Leader of the Opposition in
the Legislative All the members of the Commission shall hold office for a period of five years
from the date of assumption of office or at the age of 70 years whichever is earlier. A member is
eligible for re-appointment for another term of 5 years subject to the age of 70 years whichever is
earlier. The Chairperson or a member of a State Commission may by notice in writing under his
hand addressed to the Governor resign his office. The Chairperson or a member of State
Commission shall only be removed from his office by order of the President on those grounds on
which the Chairperson or a member of the NHRC are removed. There shall be a Secretary who
shall be the Chief Executive Officer of the State Commission and shall exercise such powers and
discharge such functions of the SHRC as it may delegate to him
2. Powers and Functions
The SHRC is empowered to perform all those functions which have been entrusted to the NHRC.
However, Para C of Section 29 excludes the study of treaties and other international instruments
on human rights from the purview of the SHRC’s functions. Section 36(1) of the Act however
states that the National Human Rights Commission shall not inquire into any matter which is
pending before the State Commission or any other statutory Commission duly constituted under
any law in force. It implies that the Act gives priority to the State Commission dealing with a
problem if the matter is filed before it and the National Human Rights Commission. The
Commission is also required to submit its annual reports to the State Government and it may
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submit at any time special reports on any matter, which it deems fit and expedient to deal. The
State Government shall submit these reports before each House of State Legislature with a
memorandum of action taken or/and the reasons for non-acceptance of the recommendations if
any. The State Human Rights Commission have been established in 21 states. Many state
governments either not formed the commission itself or if they have formed, they do not
regularly make appointments of the members. The reasons which are cited by the State
Government predominantly consist of financial reasons, and lack of men power. The situation is
pathetic when the attitude of State Government is seen. The low priority given to SHRCs is a
testament to the bad state of human rights affairs prevailing in the states.
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Human Rights Courts in Districts
Chapters VI of the Act, comprising of Sections 30 and 31 makes the provisions pertaining to the
creation of Human Rights courts in each district.
The setting up of Human Rights Courts in every district of the country for the speedy trial of
offenses arising out of the violation of human rights is a novel provision of the Act.
Section 30 of the Act provides that Human Rights Courts may be set up by the State Government
with the concurrence of the Chief Justice of the High Court by notification specific for each
district a Court of Session to be a Human Rights Court.
In accordance to section 31 the State Government shall appoint a Public Prosecutor or an
advocate who has been in practice as an advocate for not less than seven years for the purpose of
conducting cases in the Human Rights Courts. Such a person shall be called a Special Public
Prosecutor.
The act leaves it on the discretion of the State Governments to establish these courts it is not
made mandatory by the Act.
Though some states have established such courts like Uttar Pradesh in 1995 non-appointment of
Special Public Prosecutors and other staff have made such courts a mere illusion.
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Evaluation of the Act
Though the Protection of Human Rights Act, 1993 and the Commissions formed under it has
shielded the human rights of persons in the country from getting violated still the Act and its
implementation lacks many things and consists of some inherent flaw Some flaws and
recommendations are:
The Human Rights Commission is expected to be completely independent in its functioning. But
there is no provision for the independence of the Commission. In fact, there are provisions in the
Act which draw attention to the dependence of the Commission as Commission is dependent
upon the Government for its human resources for its functions as per Section 11 of the Act.
Finance is considered as the blood of an organization. Section 32 of the Act makes the
commission dependent on central government for its finances. Human Rights Commission is an
only fact-finding body and it has got no power to adjudicate upon the disputed facts and also to
issue an order to any party or government so as to be complied with. The Commission’s findings
are only advisory to the government
It is at the discretion of the government whether to accept or reject the findings and
recommendations of the commission as there is no provision which makes the recommendations
binding on the government. The commission does not have the power to constitute special
investigation teams for purposes of investigation and prosecution of offenses arising out of
violations of human rights.
Unlike Supreme Court and High Courts, Commission cannot inquire into any matter which is
pending before state human rights commission or before human rights courts despite the gravity
of matter concerned as provided under Section 36(1) of the Act.
The act puts 1-year limitation period for seeking redressal of grievances before the human rights
commissions. Human Rights Commissions cannot investigate an incident if the complaint was
made more than 1 year after the incident as provided under Section 36 Clause 2. Therefore, a
large number of genuine grievances go unaddressed if the victim fails to approach the
commission on time due to whatsoever reasons.
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It is not mandatory for the State government to establish State Human Rights Commission and
Human Rights Courts.
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Cases
In Bonded Laboure’s Working in Chaunac Stone Mines, District Gwalior Madhya Pradesh (Case
NO. 1351/12/2001-2002 (FC) Bonded Laboure Liberation filed a complaint that 400 bonded
laborers had been working in Chaunac Stone mines in District Gwalior and they were not paid
their wages besides they were tortured and harassed. Commission asked the government to direct
Laboure Commissioner, MP to ensure the inspection of these establishments and strict
enforcement of all labor laws. 44 persons were released and sent to other districts as per their
wishes. In a subsequent report Laboure Department, Government of MP stated about the
rehabilitation of released laborers and also indicated the action taken against the guilty
employers. On Consideration of the report, Commission closed the case.
In Case No. 2432/4/39/2012 the Commission had taken Suo moto cognizance of press report
titled Kids thrashed for refusing insect infested school meal the report alleged that students of a
school at Mahtani Melki village of Vishal district near Patna were allegedly thrashed by their
headmaster till they fainted for refusing to eat a mid-day meal of khichdi in which they found
insects. The Commission issued a notice to the Chief Secretary Government of Bihar and the
District Magistrate Vaishali to submit a report on the matter and also about the steps taken by
them. The SP Vaishali Bihar submitted a report that charge-sheet has been filed before the Court
against the Head Master of the School. District Magistrate Vaishali, further directed to send a
report along with proof of payment within six weeks regarding payment of monetary relief to the
victim-students of SC community under the provision of Rule 12(4) of SC/ST (PA) Rules 1995.
The response received in the matter is under consideration of the Commission.
In Case No. 1155/35/5/2014 the commission took Suo moto cognizance of the matter on the
report published in Hindi Newspaper titled Is school mein bachche helmet peahen kar karte han
pad Hai. According to the report, in a school in village Doodle 25 km from Dehradun, children
wear a helmet while studying in the Classroom. It has been mentioned that building of the school
in which they study is in a dilapidated condition and plaster from the roof continuously falls.
This fall of plaster from the roof has resulted in injuries to many students. The contents of the
press report raised a serious issue of violation of human rights of school children. The
commission issued a notice to the Secretary Department of Education and directed to submit a
report in respect of the various school buildings in a dilapidated condition in the State and the
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corrective measures taken/proposed to be taken by the State Government. District Magistrate,
Dehradun was also directed to submit a report in respect of the number of children who have
suffered injuries in the school details of medical treatment provided to them as well as an ex
gratia relief granted by the State Government
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Conclusion
The Enforcement of Human Rights is not a difficult problem if one realizes the existence of
human rights as an integral part of human life. If the former is realized then the only hurdle
which comes is the web of procedures of enforcement of human rights into which the victim gets
entrapped. If that web is transformed into a simple and straight road walking on which the victim
can get his human rights enforced easily. If that does not happen, then it is very certain, the
reporting of human rights violation will be very less. The Enforcement becomes a difficult
problem, when a man with clear vision closes his eyes for recognizing any other person’s human
rights and when this happens enforcement of human rights becomes near to impossible. The
latter situation is not affordable for the welfare of humanity and non-enforcement of human right
is a non-negotiation term for human existence.
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Reference
● Dr.H. O Agarwal, International law and Human Rights, central law publication,21
edition, 2016
● Nhrc.in
● K.s pavithran, Human rights in India, second edition.
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