NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW

RANCHI

“National Commission of Human Rights: An Analysis”

SUBMITTED TO: SUBMITTED BY:

Ms. Surabhi Singh Sandeep Kumar

Associate Professor Roll No: 829

Human Rights Law Semester-VIth, B

 Introduction

Human rights can be defined as the fundamental rights which the humans have by the fact of
being human, and which are neither created nor abrogated by any government. Human rights
are the rights and freedoms of all human beings. They are fundamental and universal. Human
rights consist of civil and political rights as well as economic, social and cultural rights.
Supported by several international conventions and treaties (such as the United Nation’s
Universal Declaration of Human rights in 1948), these include rights such as right to life,
liberty, education and equality before law, and right of association, belief, free speech,
information, religion, movement, and nationality. Promulgation of these rights is not binding
on any country, but they serve as a standard of concern for people and form the basis of many
modern national constitutions. Although they were defined first by the UK philosopher John
Locke (1632-1704) as absolute moral claims or entitlements to life, liberty, and property, the
best-known expression of human rights is in the US Declaration of Rights in 1776 which
proclaims that “All men are by nature equally free and independent and have certain inherent
natural rights of which when they enter a society they cannot by an compact deprive or divest
their posterity.” The term came into wide use after World War II, replacing the earlier phrase
“natural rights,” which had been associated with the Greco-Roman concept of natural law
since the end of the Middle Ages. As understood today, human rights refer to a wide variety
of values and capabilities reflecting the diversity of human circumstances and history. They
are conceived of as universal, applying to all human beings everywhere, and as fundamental,
referring to essential or basic human needs. The following definition expresses clearly the
meaning of human rights:

“A human right is a universal moral right, something which all men, everywhere, at all times
ought to have, something of which no one may be deprived without a grave affront to justice,
something which is owing to every human simply because he is human.”

An alternative explanation was provided by the philosopher Kant. He said that human beings
have an intrinsic value absent in inanimate objects. To violate a human right would therefore
be a failure to recognize the worth of human life. Protection of human rights in India is a
serious concern to everyone. Mahatma Gandhi once said: “It has always been a mystery to
me how men can feel themselves honoured by the humiliation of their fellow beings.” The
pressing catchphrase in the aforesaid lines is humiliation. Humiliation of human beings, in
every sphere and of all kind must be condemned and protection must be accorded to the
weaker and poor sections of the society. It is only then we can safeguard the fabric of our
democracy and eternal high profile values relating to human dignity. Human dignity is
quintessence of human rights1. The great teachings of Swami Vivekananda also reiterate that
‘the self in youis the self everywhere’. However, considering these ideas on a staid front,
every State is duty bound to shield the human rights of the citizen from gross infringements
and must ensure that the grand promises and pledges made in the international, constitutional
and statutory instruments must not become mere dead letters. The honest fulfilment and
observance of these sacrosanct norms will verify the fact that the nation is not lying to own
conscience. For this purpose, the States are also required to ensure the energetic enforcement
of these human rights in their respective countries. In pursuance of this objective, one of the
strong evidence that can be provided by the States in this regard is the establishment and
effective functioning of national human rights institutions. The international community
members firmly realized the need and importance of these institutions in every democratic set
up2 . The National Human Rights Commission (NHRC) in India is actively involved in the
affording protection against such humiliation and fervently advances the great cause of
sacrosanct human rights. National Human Rights commission is an autonomous statutory
body designed to bless the people of India with ‘better protection of human rights3. The
establishment of the Commission was an outcome of the international deliberations and was
indeed one of effective implementation as well as a glaring illustration of India’s adherence
to international norms and standards. Soon after the establishment of the United Nations, a
need was felt to introduce the human rights institutions at national echelon in order facilitate
the enforcement of human rights in the respective countries. It was felt that these
commissions would be endowed with certain powers by virtue of which human rights could
be enforced in more effective and efficient way.

1
Justice J.S. Verma, ‘Human Rights Redefined: The new Universe of Human Rights’, Journal of the NHRC,
Vol.1, 2002 at p. 1 also available at <http://nhrc.nic.in/Publications/NHRCJournal2002.pdf> last visited on
21-12-2020 at 4.20.p.m.
2
For.eg. Recently, the UN Commission for Human Rights, in its resolution on National Institutions for the
Promotion and Protection of Human Rights emphasized that, ‘national institutions have a potentially crucial
role to play in promoting and ensuring the indivisibility and interdependence of all human rights.’ See.
National institutions for the promotion and protection of human rights, Commission on Human Rights
resolution 2003/76, also available at < http://www.nhri.net/pdf/E-CN.4-RES-2003-76.pdf>> last visited on
21-12-2020 at 4.20.p.m
.
3
See. The Human Rights Act, 1993. The preamble of the Act provides as follows- “An Act 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.”
The National Human Rights Commission(Commission) was established on October 12, 1993
through an Act of Parliament titled "The Protection of Human Rights Act, 1993"(ACT). It
will shortly be completing five years of its existence and it is time to undertake a review of its
status, functioning and problems. The Commission undoubtedly has some achievements to its
credit. It has succeeded in persuading the Central Government to sign the United Nations
Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Punishment
or Treatment. It has brought into sharp focus the problem of custodial deaths and taken steps
to see that these are not suppressed by the state agencies and that the guilty persons are made
to account for their sins of commission and omission. It has also helped in designing
specialised training modules on human rights for introduction in the educational and training
institutions. There is, however, a feeling that the Commission has not been able to achieve its
full potential. Is it true? Are there any structural deficiencies and inadequacies in its
constitutive law? This needs to be examined with reference to internationally accepted
standards.
At a UN sponsored meeting in Paris in 1991, a detailed set of principles on the status of
national human rights institutions was developed, which are known as the Paris Principles.
These principles provide that a national institution must have a broad mandate; pluralism,
including representative composition; wide accessibility; effectiveness; independence;
sufficient resources; and adequate powers of investigation.
Mandate
Section 2 (d) of the Act defines "human rights" as "rights relating to life, equality and dignity
of the individual guaranteed by the Constitution or embodied in the International Covenants
and enforceable by courts in India" Thus the law requires the NHRC to concentrate more on
civil and political than on social and economic rights. This is somewhat unfortunate as a
human rights commission can really play an effective role in pressurising the government to
provide social and economic justice to citizens. The South Africans appear to have realised
this as they have mandated, through Article 184 (3) of the Constitution of the Republic of
South Africa, 1996, their human rights commission to "require relevant organs of state to
provide the commission with information on the measures that they have taken towards the
realisation of the rights in the Bill of Rights concerning housing, health care, food, water,
social security, education and environment." A similar type of provision in law governing the
human rights commissions in this country can act as a pressure point on the governments to
explain as to what they have done during the last 50 years to provide, for example, the safe
drinking water to the public.
Composition
As per Section 3 of the Act, the Commission shall consist of five members, three of whom
should be from the judiciary and two "from amongst persons having knowledge of, or
practical experience in, matters relating to human rights." Selection of chairperson and
members of the Commission is made on the recommendations of a committee consisting of
the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the
People and Deputy Chairman and leader of opposition in the Council of States. There are
three objections to the existing arrangements.
Firstly, the legislation limits the selection to a narrow band of persons who, just by belonging
to judiciary, need not reflect any particular expertise in or commitment to human rights. It
restricts the Commission from getting the plurality of perspectives, vocations and diverse
experiences from the civil society.
Secondly, the committee recommending selection consists solely of politicians.
Thirdly, the process of selection is not transparent. Composition of the Commission is
generally decided through noting in secret files or during closed door meetings between the
politicians and their favourite bureaucrats.
According to Section 11 of the Act, the Central Government shall "make available" to the
Commission officers and other staff required for research, investigation, technical and
administrative work. This provision of law, by making the Commission dependent on the
Government for its manpower requirements has also led to narrowing its field of choice to
what is made available by the Government. The problem is compounded because the terms
attached to the Commission's posts are not good enough to attract quality material. The post
of Director (Research) in the Commission has been vacant since its inception. The majority
of posts in the Research Division are manned by the clerical staff from the Ministries of the
Central Government, who have no research background. The two posts of Superintendent of
Police in the Investigation Division are manned by BSF officers who, neither by training nor
by experience, can really be regarded as qualified investigating officers. The post of Director
General (Investigation) has so far always gone to a retired IPS officer.
Most of the officers and other staff working in the Commission have come from different
offices of the Government of India. After years of working in the government departments,
they join the Commission with a certain mind-set, deep resistance to change, bureaucratic
procedures of work and a very heavy accumulated backlog of bad practices. They have no
knowledge of or commitment to human rights philosophy. What makes the situation worse is
that they are not given any training when they join the Commission. It is not at all surprising
that the Commission is gradually acquiring the image of a bureaucratic organisation.

Accessibility and Effectiveness

There has been a definite increase in the number of complaints received by the Commission.
From 6,987 in 1994-95, the number increased to 10,195 in 1995-96 and to 20,514 complaints
in 1996-97. The Commission feels happy on this account, as it signifies, according to the
Commission, an increase in awareness of human rights and a "reflection of the increasing
confidence of people in the Commission." Is this interpretation realistic or is the optimism
misplaced? 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 Tamilnadu
(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%).
Rights' awareness, besides being limited to a few states, is not enlightened. In 1996-97, out
of a total of 16,823 cases, 8048(47.8%) were dismissed ‘in limini’. In the preceding year also
i.e. 1995-96, 5,984 out of 11,153 cases (53.6%) were dismissed similarly. These are the cases
which do not fall within the purview of the Commission's charter or are time barred or are
sub-judice. There is thus considerable ignorance amongst the public about the Commission's
charter. The Commission must keep a tight grip on its disposal, so that pendency is not
allowed to increase. Unfortunately, this is not happening and the number of cases pending
with the Commission has been increasing sharply every year. Though the report for the year
1996-97 shows that only 319 cases were pending on 1.4.1996, the actual pendency was much
higher. At the end of the preceding year, i.e.1995-96, out of 11,153 cases considered, the
Commission was not able to dispose of 3,535 cases. The number of cases pending with the
Commission on 1.4.1996 was 3,584(319+3535). By 1.4.1997, the pendency had increased to
9,985 (4,010+5,975). The Commission either must get its actual strength increased or change
its methods of disposal so that the backlog of accumulated indisposed cases does not become
heavy. There is no reason why cases dismissed ‘in limini’ cannot be decided at the secretariat
level, instead of being put up to the Commission for final disposal, as is happening at present.
Independence and Resources

The Commission is supposed to be completely independent in its functioning, even though

the Act does not say so. In fact, there are provisions in the Act which underscore the
dependence of the Commission on the Government. As already stated, Section 11 of the Act
makes it dependent on the government for its manpower requirements. Then there is that all
important question of finance. According to Section 32 of the Act, the Central Government
shall pay to the Commission by way of grants such sums of money as it may consider fit.
While the Commission asked for a sum of Rs.8 crores for 1998-99, the Government has
granted a sum of Rs.5 crores only. Thus in respect of the two most important requirements
i.e. manpower and money, the Commission is not independent.

Investigation

The Act does not authorise the commission to enquire into complaints of violations of human
rights committed by the members of the armed forces. “Armed Forces”, as defined in Section
2(1)(a) of the Act, means not only the naval, military and air forces but also the central para-
military forces. Since a very large number of complaints of human rights violations are
directed against the members of the “armed forces”, the Act obviously weakens the NHRC’s
effectiveness in providing redress to the public in such cases. All that the Commission, under
Section 19 of the Act can do is to call for reports from the Central Government in such cases
and then make recommendations to the Government or not “proceed with the complaint” at
all. Under the Act, the Commission has no power to enforce its decisions. According to
Section 18 of the Act, where the enquiry conducted by the Commission discloses violation of
human rights, it can only advise the government to take action against guilty persons or grant
relief to the victim. If any Government refuses to accept the advice, as was done recently by
the Bihar Government in a case of granting relief, there is no provision in law which
empowers the Commission to force the Government to implement its advice.
The Commission is thus weak, deficient and dependent in many respects. It is too important
an institution to be neglected. The Act must, therefore, be amended to make the Commission
a strong, independent and vibrant institution, supporting democracy and good governance.
Origin of the research problem :

Protection of Human Rights (HR) becomes an important issue after the Second World War
and after the acceptance of Universal Declaration of Human Right. The growth of HR Law
and Jurisprudence thereafter was spontaneous and continuous. The changes in the global
scenario bring new concept of HR protection against violation. Human Rights are not mere
privileges given to the subjects by the ruler but are liberties permitted to the ‘citizens’ in a
democracy. The National Human Rights Commission (Commission) was established on
October 12, 1993 through an Act of Parliament titled "The Protection of Human Rights Act,
1993"(ACT). It will shortly be completing five years of its existence and it is time to
undertake a review of its status, functioning and problems. The Commission undoubtedly has
some achievements to its credit. It has succeeded in persuading the Central Government to
sign the United Nations Convention against Torture and Other Forms of Cruel, Inhuman and
Degrading Punishment or Treatment. It has brought into sharp focus the problem of custodial
deaths and taken steps to see that these are not suppressed by the state agencies and that the
guilty persons are made to account for their sins of commission and omission. It has also
helped in designing specialised training modules on human rights for introduction in the
educational and training institutions. There is, however, a feeling that the Commission has
not been able to achieve its full potential. Is it true? Are there any structural deficiencies and
inadequacies in its constitutive law? This needs to be examined with reference to
internationally accepted standards. At a UN sponsored meeting in Paris in 1991, a detailed set
of principles on the status of national human rights institutions was developed, which are
known as the Paris Principles. These principles provide that a national institution must have a
broad mandate; pluralism, including representative composition; wide accessibility;
effectiveness; independence; sufficient resources; and adequate powers of investigation.

OBJECTIVES OF THE PROJECT:

1. To study functions, Accessibility, effectiveness and credibility of Human Right

Commission in perspective of implementation of Human Right enforcement.
2. To study implementation of HRC regulation, in urban and rural areas organization.
3. To find out how social, religious, economical effect are imbibe through Organization.
4. To encourage to national researcher to create further research in this field.
Conclusion & Suggestions

A study of the present Topic reveals that this NHRC illustrates the difficulties faced by a
national commission and its potential contribution for advancement of human rights. To a
limited extent the NHRC has succeeded in sensitising the central and state governments
regarding observance of international human rights norms. It seems to be evolving. Societal
backdrop of South Asia is not conducive to practice of human rights. This region is marked
by endemic poverty, illiteracy, societal fragmentation and insensitive authority structure. As
Madhavi Basnet has observed that, “South Asian governments have ratified some
international human rights instruments, but such policy is not reflected in the national
constitution or law of any government. One cannot help but question whether South Asian
governments really care about their citizen’s interest in having human rights enforced by
domestic law4.”In this context the headway made by the NHRC, though limited is significant.
Coming to the Indian NHRC case study it becomes clear that the commission has been
hampered in realising its full potential by external as well as internal factors. External factors
are those, which are controlled by or influenced by the state and its agencies. Some of the
external factors are numerated below: the NHRC emphasised the need to set up SHRCs and
to establish clear functional relationship between the two but the central government has
categorically dismissed the commission’s proposals.
In the area of child labour, education and other aspects of child welfare the commission has
made policy recommendations but the central government has not responded to them.
Dealing with human rights violations committed by armed force personnel but the privileged
status of armed forces continues and the government has dismissed all such proposals as
unnecessary, even case of death and rape while in the custody of armed forces.
For the last five years the government has not appointed two members. While internal
factors are the ones, which the NHRC has, some control but because of various factors has
not been able to cash on. For example: while the government was at fault for not complying
with the recommendations of the NHRC, the commission was also responsible for not
supporting its strong words with action. The NHRC has followed through on only a few of
the recommendations issued in its annual reports.

4
Basnet Madhavi, ‘South Asia’s Regional Initiative on Human Rights’, The Human Rights Brief, Washington
College of Law, American University, Volume 4, Number.2 Winter 1997
  Similarly the commission could have taken number of steps itself toremedy the
situation but because of legal formalism and administrative inertia these steps have
not been taken.
 Given the NHRC’s caseload, it is astonishing that a large number of posts(there are
218 staffers as against the sanctioned strength of 297) are still vacant, which the
commission itself is empowered to fill.
 The commission in its various reports has not started the practice of measuring its
performance in terms of satisfaction of victims. A victim’s perspective of judging its
effectiveness is singularly missing.
 The commission has not opened regional offices for adequate regional representation
of complaints.
 Large number of cases is dismissed by the commission ‘in limini’.
 Pendency of large number of cases and failure of the commission to evolve time-
bound transparent disposal mechanisms of complaints.
 In the context of counter insurgency operations in the North Eastern states the issue of
state accountability becomes indispensable. The NHRCs reports neglect to highlight
this important issue of accountability.

From study of the secondary sources and ten personal interviews conducted by the
Researcher it is apparent that despite limitations the NHRC India has made significant
progress in holding the government accountable specially its activism in Gujarat cases, suo-
moto cognisance, prison reforms, child labour and prostitution, mental health etc. Its success
in complaints redressal mechanism is affected by legal formalism and disposal of cases ‘in
limini’ procedure, lack of transparency and its failure to have regional offices in south India
and northeast. The performance of the commission has a few purple patches in an otherwise
dismal landscape of apathy to human rights norms at societal level.
Surprisingly, the NHRC itself seems to be actually aware of what it calls its ‘challenges’.
After the establishment it is the period of consolidation for the commission where the
commission has observed in its annual report 1998-1999 that how it has to deal with
challenges of credibility, scale and expectation, variety, good governance and entrenched
attitudes. However, no blueprint for effective action is outlined in its documents.
As illustrated by Epp5163 the existence of Supreme Court in a setting like India may not be a
panacea for attending to rights based litigation, in the absence of strong support of legal
mobilisation at societal level. Institutions like the NHRC are the only means, which
theoretically at least, hold promise of affordable access to justice for the poor and the
vulnerable which constitute at least one third of India’s population.
Hence in such social settings institutions like the NHRC fill an important void in a poor
person’s search for justice. Despite limitations, highlighting the structural inadequacy of
Indian society by focusing on economic, social and cultural rights the NHRC has made great
strides in making the Indian state aware of attending to economic, social and cultural rights.
The real significance of the commission is advocacy, to build constant pressure and act as
reminder of the state obligations towards the rights.
Due to the commission’s insistence these economic, social and cultural rights have acquired
constant public discourse in evaluating the effectiveness of the Indian state.
As observed earlier in this study that the courts are not sufficient in themselves in attending
rights because of weak support structure for legal mobilisation. The view that courts and
existing national institutions are sufficient to attend to the human rights agenda is based on
the assumption that that support for legal mobilisation is uniform throughout. However as
analysed by the Epp, this is not true in some social settings as India in particular and South
Asia in general. In addition, the social composition is such that the poor and the vulnerable
groups form significant components in these societies. These very social segments are hardly
in the position to utilise the courts as an institution to full their fundamental rights, much less
their economic, social and cultural rights. In such social settings institutions like the NHRC
are very much needed to keep exclusive focus on need for fulfilment of these rights and
internalisation of international human rights norms. The case study of Indian NHRC has
international significance because India with its one billion populations is too important to be
ignored. At regional level of South Asia it has its own importance as a trendsetter in human
rights field. The case study illustrates difficulties in establishing an independent body
entrusted with internalising international human rights norms in a hostile domestic context
and great potential for such an institution to advance human rights agenda. The need for the
international community, to sustain such an institution and keep advocating greater
institutional autonomy in concept as well as in practice, hardly need to be emphasised. This

5
Epp Charles R, ‘The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparativeperspective ‘, The
university of Chicago Press, Chicago and London, 1998
will help in consolidation of the work done by the NHRC and gradually establish a culture of
human rights norms in India.

SUMMARY OF THE FINDINGS :

 National Human Right Commission partially successful in its role to protect and
enforcement of Human Rights in India.
 In India, functioning of NHRC is not so effective and receptive relating to poor and
deserted peoples.
 National Human Right Commission could have taken number of steps itself to remedy
the situation but because of legal formalism and administrative inertia these steps
have not been taken.
 Given the NHRC’s caseload, it is astonishing that a large number of posts (there are
218 staffers as against the sanctioned strength of 297) are still vacant, which the
commission itself is empowered to fill.
 The commission in its various reports has not started the practice of measuring its
performance in terms of satisfaction of victims. A victim’s perspective of judging its
effectiveness is singularly missing.
 The commission has not opened regional offices for adequate regional representation
of complaints.
 Large number of cases is dismissed by the commission ‘in limini’.
 Pendency of large number of cases and failure of the commission to evolve time-
bound transparent disposal mechanisms of complaints.
 In the context of counter insurgency operations in the North Eastern states the issue
of state accountability becomes indispensable. The NHRCs reports neglect to
highlight this important issue of accountability.