9National

National Mechanisms
Mechanismsfor
forProtection and Enforcement
the Protection of Human
and Enforcement ofRights
Human Rights
15 Critical
Critical evaluation
Evaluationofofthe National
the Human
National Rights
Human Commission
Rights Commission

Development Team

Prof. (Dr.) YSR Murthy, Executive Director, Centre for

Principal Investigator:
Human Rights Studies, OP Jindal Global University

Prof. (Dr.) YSR Murthy, Executive Director, Centre for

Paper Coordinator:
Human Rights Studies, OP Jindal Global University

Prof. (Dr.) YSR Murthy, Executive Director, Centre for

Content Writer:
Human Rights Studies, OP Jindal Global University

Prof. (Dr.) Padmanabha Ramanujam, Dean, School

Content Reviewer:
of Law, Auro University, Surat

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 Description of Module

Subject Name Human Rights and Duties

Paper Name National Mechanisms for the Protection and Enforcement of Human Rights

Module Critical Evaluation of the National Human Rights Commission

Name/Title
Module Id 15

Pre-requisites

Objectives

Keywords

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 1. LEARNING OBJECTIVES ....................................................................................................... 3
2. INTRODUCTION ................................................................................................................. 4
3. ACHIEVEMENT OF THE COMMISSION ................................................................................. 4
3.1 COMPLAINTS HANDLING .............................................................................................................. 5
3.2 LAW REFORMS ........................................................................................................................... 6
3.3 SPREADING OF HUMAN RIGHTS LITERACY ........................................................................................ 7
4. COMPLIANCE WITH PARIS PRINCIPLES ............................................................................... 8
4.1 PLURALISM ................................................................................................................................ 8
4.2 INDEPENDENCE........................................................................................................................... 9
4.3 ADEQUATE RESOURCES ................................................................................................................ 9
5. STATUTORY LIMITATIONS ................................................................................................ 10
5.1 JURISDICTION OVER ARMED FORCES .............................................................................................. 10
5.2 LACK OF PLURALITY ................................................................................................................... 11
5.3 Lack of enforcement powers

6. OPERATIONAL PROBLEMS................................................................................................ 11
6.1 REDRESSAL OF COMPLAINTS ........................................................................................................ 11
6.2 INTERVENTION IN COURT PROCEEDINGS ........................................................................................ 12
6.3 RECOMMENDATIONS ................................................................................................................. 12
6.4 SPREADING HUMAN RIGHTS LITERACY ........................................................................................... 13
6.5 RELATIONSHIP WITH SISTER ORGANIZATION .................................................................................... 13
6.6 COOPERATION WITH STATE HUMAN RIGHTS COMMISSIONS .............................................................. 14
7. CONCLUSION ................................................................................................................... 14

1. LEARNING OBJECTIVES

 At the end of the module, students must have an understanding of the challenges and
limitations of the National Human Rights Commission, posed both operationally and
statutorily.
 Further, the module will provide the students with information relating to some of the
achievements of the NNHRC over the years since its formation.

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
  The students will also be acquainted with the issue of compliance of the NHRC with the
guidelines provided by Paris Principles.

2. INTRODUCTION

a) The National Human Rights Commission (“NHRC” or “Commission”) was established in

the year 1993 by the Protection of Human Rights Act, 1993 (“PHRA”), for the protection
and promotion of human rights in India. Over the years, the Commission’s work has
been subject to mixed reactions as it could not present itself as a panacea of all the
human rights violations occurring across the country. A section of NHRC’s critics
continue to believe that the enabling statute, i.e., PHRA, is flawed and it has set up a
‘toothless tiger’ that cannot achieve its mandate of the protection and promotion of
human rights, since it is another ‘sarkari body’.
b) The ex-Chief Justice of India, H L Dattu, commented
about the NHRC that, “when NHRC arrives at a
finding, it can only recommend remedial measures
or direct the state concerned to pay
compensation,… We keep writing letters to the
authorities concerned to implement our
recommendations. But it is the sweet will of the
authorities whether or not to implement NHRC
recommendations. It is for Parliament to decide
whether to confer NHRC with some kind of
contempt powers to make authorities implement its
recommendations.”1

There are several weaknesses from which the Commission suffers but since its inception, the
Commission has also made some significant accomplishments and which repose the trust of
public in the Commission. In this module, we will discuss briefly some of the accomplishments
of the Commission along with some of its the weakness. Needless to say, the Commission must
overcome the challenges to effectively perform the function of protection and promotion of
human rights in India.

3. ACHIEVEMENTS OF THE COMMISSION

1
Ex CJI H L Dattu in his interview to the Times of India in the year 2016. (Available at
<http://timesofindia.indiatimes.com/india/NHRC-a-toothless-tiger-Panel-chief/articleshow/52544350.cms>)

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 c) The analysis of the principal functions and activities of the Commission brings us to a
positive conclusion about the working of the Commission in the following aspects:

3.1 Complaints Handling

The Commission has a function of inquiring into any complaint of human rights violation or of
negligence in the prevention of human rights violation within its official mandate.2 The
procedure for making complaints to NHRC has been made easy due to which the number of
complaints it receives annually has seen a steady increase. Till the year 2002 from its
establishment, NHRC received 306,975 complaints of which 295,072 were taken for
consideration. In the year 2012-13, it received 107,655 complaints. The increasing number of
complaints filed with NHRC projects the trust of people in the institution. In order to appreciate
how NHRC handles the complaints, as an example, refer to the complaints it received in the
year 2012-13 and the manner in which they were handled:

Disposal of Complaints

6%
Dismissed in Limini
21%
Transferred to SHRCs
47%
Pending Disposal
Dsiposed off with directions
19% Concluded

7%

However, the downside of the increasing number of complaints is that the caseload of the
Commission has become extremely heavy, far heavier than any other National Human Rights
Institution in the world. These complaints are from all segments of society. The Commission has
taken up a number of measures to effectively handle the complaint like computerization,
practice directions, fast tracking, appointment of special rapporteur and specialized training.

2
Section 12(a), The Protection of Human Rights Act, 1993.

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 With respect to the prodigious complaints that the Commission receives, it tries to deal with
the complaints as effectively as possible.3

3.2 Law Reforms

The Commission is entrusted, inter alia, with the function to review the safeguards provided
under any law or by the Constitution.4 In pursuance to this, the Commission has reviewed about
20 Acts, Bills and Ordinances relating to terrorism, freedom, child rights, special powers of
armed forces including some of the provisions of Criminal Procedure Code, Indian Penal Code,
the Police Act and the Prisons Act. The Commission has also suggested changes in its enabling
act so the statutory limitations in its functioning can be done away with.

Some laws that the NHRC has reviewed are:

Terrorists and
Protection of Prevention of
Child Marriage Disruptive
Human Rights Act, Terrorism Bill,
Restraint Act, 1929 Activities Act,
1993 2000
1985

National Rural
Freedom of Protection from Food Safety and
Employment
Information Bill, Domestic Violence Standards Bill
Guarantee Bill,
2000 Bill 2002 2005
2004

Land Acquisition Rehabilitation ans

Prevention of
Amendment Bill, Resettlement Bill
Torture Bill 2009
2007 2007

The Supreme Court in the Vishaka judgement referred to this function of the Commission and
commented it has strengthened the power of the Commission in fulfilling its ultimate
responsibility. In a number of instances with respect to torture, rights of women and children,

3
Virendra Dayal, Evolution of the National Human Rights Commission, 1993-2002: A Decennial Review, Journal
of the National Human Rights Commission of India, 2002.
4
Section 12(d), Protection of Human Rights Act, 1993.

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 refugees’, etc., the Commission has taken some very significant steps to ensure better
protection of human rights.5

3.3 Spreading of Human Rights Literacy

NHRC is also entrusted with the function of spreading human rights literacy among various
sections of the society to create a culture of human rights.6 The Commission has taken a
significant number of steps in this respect:

 Prepared materials for school education with the Ministry of Education, the National
Council of Educational Research and Training and the National Council for Teacher
Training;
 Prepared materials for development of courses in the colleges along with University
Grants Commission;
 Prepared courses on human rights for training public servants, police officials and
member of armed forces;
 Prepared handbooks for judicial officers;
 Encouraged and supported NGOs in their function of spreading awareness and literacy.

Source: http://risingsunchatsworth.co.za/33940/human-rights-day-programmes-to-be-held

The Commission has continuously tried to perform its functions and has handled human rights
issues of custodial violence, torture, hunger, illiteracy, rights of women and children, education
and health by recommending systematic reforms and promoting good governance for better
protection of human rights.

5
Vishaka and Others v. State of Rajasthan, AIR 1997 SCC 3011.
6
Section 12(h), Protection of Human Rights Act, 1993

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 4. COMPLIANCE WITH PARIS PRINCIPLES

The Paris Principles serve as minimum standards for National Human Rights Institutions. The
compliance with its guidelines is critical to effectively perform the function of protection and
promotion of human rights. These principles make an institution credible not only in the
international sphere, but also in its own country. Amongst other criticisms, NHRC has also been
criticized on the ground that it does not comply with the guidelines set by Paris Principles.

Interestingly, NHRC in India was established as a reaction to an international pressure for

setting up a domestic institution adhering to Paris Principles. Mr. K.G. Kannabiran, an eminent
human rights lawyer rightly commented, “creation of a human rights commission in response to
criticism of the government’s human rights record was at best only a formal act and it would
not reduce human rights violations but simply be used to cover such violations.” 7

4.1 Pluralism

The Paris Principles mandates that the membership of a NHRI must be representative of the
whole country. In other words, it provides that NHRIs should have members from different
communities, including, from the vulnerable sections. The Protection of Human Rights Act,
1993 provides for the following persons to be the member of the Commission,8

 Chief Justice of Supreme Court;

 Judge of Supreme Court;
 Chief Justice of High Court;
 Two members who have practical experience in human rights.

Apart from these four members three other members are to be the deemed members of the
Commission. They are Chairpersons of the National Commission for Minorities, National
Commission for Scheduled Castes and National Commission for Scheduled Tribes.

These commissions were already functioning before the establishment of NHRC. To properly
function with these commissions, NHRC has to collaborate pragmatically and effectively with
these commissions. Unfortunately, NHRC’s performance in this regard has been very poor. As
early as the first annual report (1993-1994), NHRC makes only a single reference to
collaborating with a thematic commission, stating that it “intends to remain in close touch with
its sister organization”, the National Commission on Women with regard to reviewing
legislation relating to women’s rights.

7
ANNI, NGO Parallel Report on the Compliance of Paris Principles of the NHRC of India, 2011
8
Section 3, The Protection of Human Rights Act, 1993

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 Such minimal efforts of NHRC to constructively work with other commissions indicates that the
presence of deemed members from these commissions does not satisfy the essentials of the
principle of pluralism, i.e., giving voice to the vulnerable groups that the commissions
represent, rather, it points to the fact that the deemed members are a mere formality included
in order to adhere to Paris Principles. Further, plural representation includes a review of the
appointments in these commissions too which are also not always pluralistic on their own.

4.2 Independence

NHRC is entrusted with the work of protection and promotion of human rights which naturally
entails that it has to be critical of the government. It cannot act as a mere extension of the
government. Thus the Paris Principles provide for the independence and autonomy of the
NHRIs in its functioning mainly from the Government.

The finance of NHRC is controlled by the government, however, it has regularly complained that
it doesn’t have adequate resources to carry out its functions effectively. NHRC also reports to
the Ministry of Home Affair under the Government of India. It is the same department against
whom maximum human rights violations complaints are made as it is in charge of terrorist
violence, border management, and most notably, internal security – including police and other
law and order officials.

Independence of NHRC is also compromised when the appointment basis is prestige or political
mileage over competence and passion for human rights.9 The Government has also been given
the power to make rules regarding10:

 Salaries and allowances of members;

 Condition subject to the appointment of administrative staff; and
 Form in which annual accounts is to be prepared by the Commission.

Such a provision reaffirms the presumptions raised by various human rights critics that NHRC is
just an extension of the government and thus cannot work independently from it.

4.3 Adequate Resources

The Paris Principles provide that NHRC should have sufficient resources to have good
infrastructure and hire competent and adequate staff. NHRC has a very wide mandate provided
by the Protection of Human Rights Act, 1993. To perform such functions it needs to have the
required infrastructure, staff and resources. At present the headquarter of NHRC is situated in
9
Section 3(2)(d), The Protection of Human Rights Act, 1993
10
Section 40, The Protection of Human Rights Act, 1993

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 New Delhi and the Commission has the power to establish offices at any other place with the
prior approval of the Central Government.11 However, since its inception, NHRC has only one
office in the capital which makes the NHRC inaccessible to the majority of the population living
outside Delhi, including the rural population.

A study of data shows that the majority of complaints are being received from three or four
states. Out of 20,514 complaints in 1996-97, as many as 13,485 i.e. 65.7% were received from
four states only i.e. UP (8,668), Bihar (2,413) Delhi (1,340) and Tamil Nadu (1,064). Similarly, in
1995-96, these three States and the Union Territory of Delhi accounted for 5,780 out of 1,0195
complaints (56.7%)12 this points to the inaccessibility of the Commission to other States not
surrounding Delhi.

Efforts are required to make NHRC more accessible for which it requires resources. Further, the
members of the Commission need to present themselves not as elite members of the
bureaucracy but as concerned officials who are receptive towards the grievances of the
common people.

Such obstaclles expose NHRC to challenges in adequately addressing the growing workload and
dramatically rising number of complaints filed by victims of human rights violations. While the
number of complaints registered with the NHRC was 496 in 1993-94, over the last 4 years it has
received on an average 400 complaints a day.13 For effectively carrying out its function it needs
more staff and more resources and because of the lack of resources the focus of the
Commission has only been on improving the capabilities of present system which has its limit
within its limited resources.

5. STATUTORY LIMITATIONS

The PHRA provides for the establishment of NHRC, however, several critics of NHRC have
pointed to the loopholes in PHRA which prevents the Commission from performing its functions
effectively. NHRC itself has pointed towards its weakness and recommended amendments to
the PHRA to rectify them. Some of the limitations which have been highlighted are:

5.1 Jurisdiction over the armed forces

11
Section 3(5), The Protection of Human Rights Act, 1993
12
NHRC, Need for
Reviewhttp://www.humanrightsinitiative.org/programs/aj/police/papers/gpj/national_human_rights_commission
.pdf
13
NHRC Annual Report, 2009-10

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 The NHRC can only recommend the government to take action on human rights violations by
the armed forces. It cannot take any action by itself. This lack of jurisdiction over armed forces
hampers the effectiveness of NHRC especially when armed forces are responsible for gross
violations.14

5.2 Lack of plurality

The composition of National Human Rights Commission does not reflect the plurality as
required under the Paris Principles on National Human Rights Institutions. Although Chairman
of the National Commission for Scheduled Tribes, National Commission for Scheduled Castes,
National Commission for Women and National Commission for Minorities are included as
statutory members, these members are busy with their own commissions and there are also
concerns with their appointments in the first place. Effectively, there is no representation from
the Scheduled Castes, Scheduled Tribes, Women and Minorities and other vulnerable sections
of the society.15

5.3 Lack of enforcement powers

Though the Commission has powers to summon anyone in relation to proceedings before it, it
does not possess the power to compel officials to be present before it. For example, it cannot
impose fines or order punitive measures. Similarly, it does not have the power to enforce its
orders which are treated as mere recommendations.

6. OPERATIONAL PROBLEMS

NHRC has also been criticized for its poor performance of its functions. The basic hindrance that
prevents NHRC from doing so is the number of operational problems it suffers from. NHRC has
failed to turn itself into an efficient organization and has acquired a bureaucratic character
typical of a government office. The operational problems that the NHRC suffers from and which
still stand as a challenge in front of it have been briefly discussed below:

6.1 Redressal of complaints

There is a great need to shift the approach of the Commission from a complaint-led one to one
which also places importance on policy matters. Much of the Commission’s time is spent in
redressing complaints which diverts the attention of the Commission from serious issues,
14
Office of the High Commissioner for Human Rights, National Human Rights Institutions, no.4 (Geneva: United
Nations, 1995), 29.
15
ACHR Review, A Bad Case: NHRC of India clogged under Operational Inefficiency, 03/08/2005. (Available at
<http://www.achrweb.org/Review/2005/84-05.htm#_ftn1>)

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 involving grave violations of human rights, requiring a policy change. Thus, there is a need to
shift the attention of the Commission from solely redressing individual complaints to also
initiating law and policy reforms to prevent human rights violations and promote a culture of
human rights in society. For this, NHRC should give greater responsibility to the State Human
Rights Commissions for redressing individual complaints.

There is a need to devise innovative ways to deal with the backlog of cases giving serious
violations a priority over minor complaints. At present there is no efficient mechanism to deal
with urgent complaints of serious nature.

There has been great delay in dealing with cases because of shortage of manpower
technological constraints, outsourcing of many essential functions like translation of complaints
from regional languages to English, lack of clarity in its jurisdiction, overlap with the functions of
other human rights institutions. These need to be tackled urgently.

6.2 Intervention in Court Proceedings

Section 12(b) authorizes the Commission to intervene in any proceedings involving violation of
human rights with the permission of the Court. However, it has been observed that NHRC has
not been using this power as much as it probably should have. It seems to have a self-imposed
restraint regarding such interventions.16 For proper exercise of this function, NHRC must
establish effective coordination between the Law and the Research Division and the courts, and
keep track of the High Court and Supreme Court cases and the ongoing Public Interest
Litigations so that the Commission can intervene in any case of a serious nature for its effective
redressal.

6.3 Recommendations

The NHRC has been authorized to recommend to the government authorities on

 The directions ought to be taken pertaining to human rights violations17

 For better conditions of jails and mental institutions18
 For effective implementation of laws relating to human rights19
 For effective implementation of international treaties20

16
Final NHRC Report
17
Section 12(a), The Protection of Human Rights Act, 1993.
18
Section 12(c), The Protection of Human Rights Act, 1993.
19
Section 12(e), The Protection of Human Rights Act, 1993.
20
Section 12(f), The Protection of Human Rights Act, 1993.

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 The authority of NHRC in protection and promotion of human rights extends only to giving the
state recommendations as to the directions to be taken by it. NHRC has been called a toothless
tiger because there is no provision in the Act by which the Commission can ensure compliance
by the authorities with its recommendations. In the absence of any penalty which can be
imposed on the authority refusing to comply with the Commission’s directions such powers
though within its official mandate remains futile.

Compliance of these recommendations is the central aspect of the functioning of NHRC and
thus should take all efforts in ensuring due compliance by authorities like creating a separate
division solely entrusted with the work of ensuring compliance.

6.4 Spreading human rights literacy

The spreading of human rights literacy is one of the core functions of NHRC. 21 While the
Commission engages in a number of activities to perform this function like providing certificate
or diploma degree, internships and conducting human rights sensitization programmes but it
hasn’t been able to achieve the ultimate goal of sensitizing the society about human rights. The
reason for it lies in the approach of NHRC towards performing this function. There is a need to
adopt a new strategy by the Commission to reach the general public. Besides organizing
conferences and seminar, the Commission has to put efforts into publishing posters and
pamphlets, making a short documentary or a movie, use radio and other broadcast signals like
TV to create awareness among people along with having a target dissemination of resources.
There is a serious lack of such efforts in the performance of this core function.

6.5 Relationship with sister organizations

In India there are 162 institutions working for human rights at both national and state level.
While the National Commission for Woman, National Commission for Scheduled Tribes and the
National Commission for Scheduled Tribes have to focus on rights of a specific group, NHRC has
to focus on a policy approach towards better protection and promotion of human rights leaving
the targeted redressal in the hands of State Human Rights Commissions. This has remained
only an idea which hasn’t been practiced by any of the institutions above and thus there
combined full potential is yet to be reached. The All India NGO Network on National Human
Rights Institutions (AiNNI) said:

India continues to participate in the UNHRC, but since its inception such
participation has always been limited to the chairperson, members, or senior
bureaucrats of the commission. The “deemed members” of the full Commission,
21
Section 12(h)

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission
 which include the Chairpersons from the NCW, the NCSC, the NCST, and the NCM,
have never participated in any international meetings as representatives of the
NHRC, even though they are touted as part of the Commission when its pluralism
is questioned.22

The deemed members of the NHRC do not even participate in the international training
programmes. These deemed members are not actually a part of NHRC but are only included for
namesake to comply with the principles of pluralism provided under Paris Principle. Thus, co-
operation with such organization remains a laudable expectation.

6.6 Cooperation with State Human Rights Commissions

State Human Rights Commissions have been established in 23 states. The Protection of Human
Rights Act, 1993 provides for transfer of complaints from NHRC to State Human Rights
Commissions.23 Out of total complaints received for the year 2012-13, only 7% were
transferred to State Human Rights Commissions. It shows the minimum amount that is being
transferred to such Commission which should have a primary function of complaint redressal so
that the NHRC can focus on bigger policy related issues with its limited resources.

7. CONCLUSION

The National Human Rights Commission has been entrusted with a very important work
centered at one theme of protection and promotion of human rights. Sure, the NHRC suffers
from a number of weaknesses by which it can earned the title of ‘toothless tiger’ but NHRC has
in the past showed that it can be a ‘a guardian for people’s human rights’ if it removes certain
difficulties pointed above. NHRC need to build again on such strengths to gain the credibility in
the eyes of public.

22
(ANNI, 2011: 69)
23
Section 13(6), The Protection of Human Rights Act, 1993 Introduced in the year 2006

Human Rights and National Mechanisms for the Protection and Enforcement of Human Rights
Duties Critical Evaluation of the National Human Rights Commission