UNIT – 5

PROTECTION OF HUMAN RIGHTS ACT, 1993

The Protection of Human Rights Act, 1993 defines “Human Rights” as the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied
in the International Covenants and enforceable by courts in India.
The National and the State Human Rights Commissions are the embodiment of India’s concern
for the promotion and protection of human rights.
In 1948 India signed and adopted the universal declaration of human rights comprising
objectives to secure the universal recognition and observance of human rights.
India also incorporated in the constitution of India including the fundamental rights and
banking the significance and development of human rights thereafter between 1968 and 1993
India ratified several international treaties in relation to the protection of human rights that
includes:
o The international convention on the elimination of all forms of racial
discrimination
o The international covenant on civil and political rights
o The international covenant on economic social and cultural rights
o The convention on the elimination of all forms of discrimination against women
o The convention on the rights of the child
India through its parliament passed landmark legislation namely the protection of human rights
act on December 18, 1993.
National Human Rights Commission (NHRC) was established in conformity with the Paris
Principles, adopted for the promotion and protection of human rights in Paris (October 1991)
and endorsed by the General Assembly of the United Nations on 20 December 1993.
The Paris Principles is a set of international standards which frame and guide the work
of National Human Rights Institutions (NHRIs).
OBJECTIVES AND FRAMEWORK OF THE ACT
OBJECTIVES
o Protection of Fundamental Rights:
The Indian Constitution, particularly Parts III and IV, guarantees fundamental rights, including
the right to life, liberty, equality, and freedom of expression. These rights are enforceable by
the judiciary and are the cornerstone of human rights protection.
o Enforcement of Rights:
The judiciary, including the Supreme Court and High Courts, plays a crucial role in ensuring
that these rights are respected and enforced.
 o Prevention and Redressal of Violations:
The Protection of Human Rights Act, 1993, aims to prevent human rights violations and
provide a mechanism for redressal. This includes establishing the National and State Human
Rights Commissions and Human Rights Courts.
o Promotion of Awareness:
The NHRC and other organizations work to raise public awareness about human rights and the
available protection mechanisms.
o Accountability:
Human rights ensure accountability of government and other entities for their actions,
promoting a just and equitable society.
FRAMEWORK:
o The Constitution:
Fundamental Rights under Articles 12-35 provide a robust legal foundation for human rights
protection.
o The Protection of Human Rights Act, 1993:
This Act establishes the NHRC and State HRCs, and also provides for Human Rights Courts
to address human rights violations.
o National Human Rights Commission (NHRC):
The NHRC is a statutory body that investigates and addresses human rights violations,
promotes human rights education, and advocates for the protection of human rights.
o State Human Rights Commissions (SHRCs):
These commissions operate at the state level, mirroring the functions of the NHRC within their
respective jurisdictions.
o Judiciary:
The Supreme Court and High Courts have the power to issue writs and take action to protect
fundamental rights and ensure the enforcement of human rights.
o International Law:
India is a signatory to various international human rights treaties and covenants, reflecting its
commitment to international standards of human rights protection.
What is the Protection of Human Right Act, 1993?
The Protection of Human Rights Act, 1993 came into force with retrospective effect from
September 28, 1993.
It applies to the whole of India and in the case of J&K, it applies to matters pertaining to Union
List and the Concurrent List only.
The Protection of Human Rights Act, 1993 was enacted to provide for the constitution of:
 o National Human Rights Commission (NHRC),
o State Human Rights Commission (SHRC) and
o Human Rights Courts for the protection of human rights.
IMPORTANT PROVISION OF THE PROTECTION OF HUMAN RIGHTS ACT, 1993
The important provision of the Act could be divided into four parts as follows:
1. Definition of “Human Rights” – Chapter I, Section 2 of the Act
2.
NATIONAL HUMAN RIGHTS COMMISSION
❖ About:
o It is a watchdog of human rights in the country, i.e. the rights related to life,
liberty, equality and dignity of the individual guaranteed by the Indian
Constitution or embodied in the international covenants and enforceable by
courts in India.
❖ Establishment:
o Established on 12th October, 1993, under the Protection of Human Rights Act
(PHRA), 1993. It was amended by the Protection of Human Rights
(Amendment) Act, 2006 and Human Rights (Amendment) Act, 2019.
o It was established in conformity with the Paris Principles, adopted for the
promotion and protection of human rights in Paris (October, 1991) and endorsed
by the General Assembly of the United Nations in December, 1993.
❖ Composition:
o Key Members
• It is a multi-member body consisting of a chairman and four members.
A person who has been the Chief Justice of India or a judge of
the Supreme Court is a chairman.
o Appointment
• The chairman and members are appointed by the President on the
recommendations of a six-member committee consisting of the Prime
Minister as its head, the Speaker of the Lok Sabha, the Deputy Chairman
of the Rajya Sabha, leaders of the Opposition in both the Houses of
Parliament and the Union Home Minister.
o Tenure
• The chairman and members hold office for a term of three years or until
they attain the age of 70 years, whichever is earlier.
• The President can remove the chairman or any member from the office
under some circumstances.
 ❖ Role:
o To inquire into any violation of human rights or negligence in the prevention of
such violation by a public servant, either suo motu or on a petition presented to
it or on an order of a court.
o To intervene in any proceeding involving an allegation of violation of human
rights pending before a court.
o To visit jails and detention places to study the living conditions of inmates and
make recommendations thereon.
o To review the constitutional and other legal safeguards for the protection of
human rights and recommend measures for their effective implementation.
o To review the factors including acts of terrorism that inhibit the enjoyment of
human rights and recommend remedial measures.
o To study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
o To undertake and promote research in the field of human rights.
o To spread human rights literacy among the people and promote awareness of
the safeguards available for the protection of these rights.
o To encourage the efforts of non-governmental organisations (NGOs) working
in the field of human rights.
o To undertake such other functions as it may consider necessary for the
promotion of human rights.
THE STATE HUMAN RIGHTS COMMISSION
❖ Members & Appointment:
The chairman and the members of the State Commission are appointed by the Governor
in consultation with the Chief Minister, State Home Minister, Speaker of Legislative
Assembly and Leader of the Opposition in the State Legislative Assembly.
❖ Tenure:
The chairperson and members hold office for a term of three years or until they attain
the age of 70 years, whichever comes first.
❖ Removal:
Although the chairperson and members of a State Human Rights Commission are
appointed by the governor they can only be removed by the President.
WHAT ARE THE LIMITATIONS REGARDING NHRC?
❖ Investigation Mechanism:
NHRC does not have any mechanism of investigation. In the majority of cases, it asks
the concerned Central and State Governments to investigate the cases of the violation
of Human Rights
 o A large number of grievances go unaddressed because NHRC cannot investigate
the complaint registered after one year of the incident.
❖ Decision Enforcing Power:
NHRC can only make recommendations, without the power to enforce decisions.
❖ Underestimation & Inadequacy of Funds:
Many times NHRC is viewed as a post-retirement destination for judges and bureaucrats with
political affiliation moreover, the inadequacy of funds also hampers its working.
❖ Neglected Recommendations:
The government often out rightly rejects recommendations of NHRC or there is partial
compliance to these recommendations.
❖ Limitations of Powers:
State human rights commissions cannot call for information from the national government,
which means that they are implicitly denied the power to investigate armed forces under
national control.
o NHRC’s powers are related to violations of human rights by the armed forces
that have been largely restricted.
REFORMS CAN BE MADE TO MAKE NHRC MORE EFFECTIVE
❖ Need for Restructuring: There is a need for a complete revamping of NHRC to make
it more effective and truly a watchdog of human rights violations in the country.
❖ Enforcement of Decisions: NHRC efficacy can be enhanced by the government if
commission decisions are made enforceable.
❖ Inclusion of New Members: There is a need to change in composition of the
commission by including members from civil society and activists.
o NHRC needs to develop an independent cadre of staff with appropriate
experience.
❖ New Laws & Transparency: Many laws in India are very old and archaic in nature by
amending which government can bring more transparency in regulations.
❖ Enhance and Strengthen Participation: To improve and strengthen the human rights
situation in India, state and non-state actors need to work in tandem.
NATIONAL HUMAN RIGHTS COMMISSION
Part II of the Act: National Human Rights Commission (NHRC)
Chapters II, III, and IV of the Act deal with the constitution, composition, and functioning of
the NHRC.
Constitution of the NHRC
The constitution of the National Human Rights Commission (NHRC) is dealt with in Chapter
II of the Act. Section 3 (1) of the Act provides that the Central Government shall establish the
National Human Rights Commission.
Composition of the Commission
Section 3(2), (3) & (4) of the Act provides for the composition of the Commission.
❖ Chairman of NHRC - Retired Chief Justice of India
❖ Member 1 - One who is/has been a Judge of the Supreme Court of India
❖ Member 2 - One who is/has been a Chief Justice of a High Court
❖ Three Members (out of which at least one shall be a woman) - They are to be appointed
from amongst persons having knowledge of, or practical experience in, matters relating
to human rights.
❖ Deemed Members (Ex-officio Members) - Deemed members are chairpersons of the
following national commissions: National Commission for Backward Classes National
Commission for Minorities National Commission for Protection of Child Rights
National Commission for the Scheduled Castes National Commission for the Scheduled
Tribes National Commission for Women Chief Commissioner for Persons with
Disabilities.
Headquarters of NHRC [Section 3 (5)]
Section 3(5) of the Act provides that Delhi shall be the headquarters of the Commission.
However, the Commission may, with the prior approval of the Central Government, establish
offices in other places in India.
Appointment of NHRC Members [Section 4]
Section 4 deals with the appointment of the Chairperson and other members. As per this section,
a selection committee will recommend the candidates to the President.
➢ The Selection Committee includes:
➢ Prime Minister (Chairman)
➢ Speaker of the Lok Sabha
➢ Union Home Minister
➢ Deputy Chairman of the Rajya Sabha
➢ Leaders of the Opposition in both Houses of Parliament
This section further provides that a sitting Supreme Court Judge or Chief Justice cannot be
appointed without consultation with the Chief Justice of India.
Tenure of office of the members [Section 6]
Section 6 of the Act provides that the Chairperson or any other member shall hold office for a
term of 3 years or until they attain the age of 70 years, whichever is earlier and shall be eligible
for re-appointment.
Removal of the Chairperson or any other member [Section 5]
Section 5 of the Protection of Human Rights Act, 1993, lays down the procedures and grounds
for the removal of any member of the Commission.
As per this section, the Chairperson or any other member of the Commission may be removed
from office only by the President on proven misbehavior or incapacity. In this case, however,
the President is required to refer the matter to the Supreme Court for investigation. And, if the
Supreme Court upholds the cause of removal and advises the President, the Chairperson or a
member of the NHRC can be removed.
Further, the President, under the provisions of this section as mentioned above, has the authority
to remove the Chairperson or any other member if he:
o is adjudged insolvent; or
o engages in any other paid employment outside the duties of his office during his term
of office; or
o is unfit to continue in office due to infirmity of mind or body; or
o is of unsound mind and is so declared by a competent court; or
o is convicted and sentenced to imprisonment for an offense that, in the President’s
opinion, involves moral corruption.
Functions and powers of the Commission
As per Section 12 of the Act, the functions and powers of the National Human Rights
Commission are as follows:
❖ NHRC can investigate any complaints related to violations of Human Rights or
negligence in the prevention of such violations by a public servant; either suomoto or
after receiving a petition.
❖ NHRC can interfere in any judicial process involving any allegation of human rights
violation.
❖ It has the authority to visit any prison or institute under the control of the state
governments to observe the living conditions of inmates. It can also make
recommendations to the authorities based on its observations.
❖ NHRC can examine the articles of the Constitution that protect human rights and make
recommendations for punitive measures.
❖ Examine the causes that obstruct the enjoyment of human rights, including acts of
terrorism, and make recommendations for proper remedies.
❖ Study human rights treaties and other international instruments and make suggestions
for their effective implementation.
❖ The Committee undertakes and promotes research in the field of human rights.
❖ Human Rights Literacy and awareness of the safeguards available for the protection of
these rights are promoted by NHRC in various sectors of society through different
media, seminars, publications, etc
❖ The National Commission for Human Rights may perform any other function that it
considers necessary for the promotion of human rights.
Section 13 of the Act provides that the NHRC while investigating complaints under this Act,
has all of the powers of a civil court trying a case under the Code of Civil Procedure.
According to Section 14, the Commission is authorized to employ any officer or intelligence
agency of the Central Government or any State Government to conduct an investigation related
to the inquiry.
Section 20 provides that the Commission is obliged to submit an annual report as well as special
reports to the Central Government and state governments.
Human rights Violations: Landmark judgments by NHRC
The following are some of the important cases in which the NHRC intervened and formed a
positive approach to prevent human rights violations.
➢ Case One: Gujarat Riots
In this case, the National Human Rights Commission took suo-moto cognizance in response to
media reports about the finding of a mass grave in Lunawada village, Panchmahal District,
Gujarat. The Commission asked for a report on the matter from the State Government and the
CBI.
In Gujarat, communal violence on a large scale was recorded in February and March 2002.
Approximately three thousand members of the minority Muslim community were massacred,
and the property was destroyed.
The Gujarat state government and police failed to take the necessary measures to avoid
violence and failed to provide protection, security, and justice to Muslim minority community
victims.
The NHRC initiated a suo-moto inquiry into these incidents and instructed the state
administration to report on the steps taken to restore calm in Gujarat. The Commission also
petitioned the Supreme Court of India on behalf of the Gujarat riot victims.
➢ Case two: Punjab mass cremations
The Supreme Court referred this case of gross violation of human rights to the NHRC. The
Commission found that the bodies of these people were burned by state authorities in contempt
of cremation procedures for unidentified bodies. The Commission held that the act violated the
dignity of the dead and harmed the emotions and sentiments of their kin, who would have
wanted to perform their last rites. Therefore, the Commission held the State of Punjab
accountable and responsible for the infringement of the right to life. Accordingly, the Punjab
government was directed by the NHRC to deposit Rs. 18,39,25,000/- within three months for
distribution to the next of kin.
Besides this, the National Human Rights Commission also awarded compensation of Rs 1.75
lakh to the next of kin of the 1051 victims of this case of mass cremation in the state of Punjab.
➢ Case three: starvation deaths in Orissa
The NHRC investigated complaints of starvation deaths in the Koraput, Bolangie, and
Kalahandi Orissa districts.
On December 23, 1996, the Indian Council of Legal Aid and Advice and others filed a writ
petition with the Supreme Court of India under Article 32 of the Constitution. On July 26, 1997,
the Supreme Court of India concluded that the petitioner could approach the NHRC since this
case is pending with them and they are likely to make a ruling. Recognizing the urgency of the
situation, the Commission moved quickly to develop an interim measure for a two-year term
and suggested that the Orissa State Government form a committee to review all land concerns.
They dispatched a team to provide an update on the current situation and also appointed a
special rapporteur to examine relief and rehabilitation activities.
In January 2004, the Commission held a conference with recognized specialists on the subject
to discuss issues concerning the right to food. The Commission has authorized the
establishment of a Core Group on the Right to Food, which will provide advice on issues raised
and recommend suitable programs for the Commission to implement. In the context of India,
this decision clearly confirms that economic, social, and cultural rights are recognized by the
courts and the Commission in the same way as they recognize civil and political rights.
STATE HUMAN RIGHTS COMMISSION
Part III of the Act: State Human Rights Commissions (SHRC)
Chapter V, Sections 21–29, contains the provisions regarding the constitution, composition,
and functioning of the SHRC.
State Human Rights Commissions are statutory, non-constitutional bodies (at the state level)
involved in protecting human rights and examining violations that occur within their respective
states, just like what the National Human Rights Commission does at the national level.
West Bengal was the first state in India to constitute a State Human Rights Commission, It was
established on 31st January 1995. Now, As per the official information, 26 states have
constituted the State Human Rights Commission.
Constitution of SHRC
According to Section 21 of the Act, the State Government may establish a body known as the
Human Rights Commission of that state.
Case Law related to the constitution of SHRC
In D.K. Basu v. State of W.B. (2015), the Supreme Court held that constituting a state Human
Rights Commission is mandatory and does not depend upon the discretion of the state
government.
Composition of SHRC
Section 21 of the Act provides that the State Human Rights Commission shall consist of the
following:
Chairperson - Former Chief Justice or a Judge of a High Court
Two members - A Judge of a High Court or District Judge in the State with at least seven years
of experience as a District Judge.
A person who has knowledge as well as practical experience in human rights issues.
This section further provides that the Secretary shall be the Chief Executive Officer of the State
Commission.
Appointment of members of SHRC Section 22 provides that the Governor shall appoint the
Chairperson and other members of the State Commission on the recommendation of a
committee consisting of the Chief Minister, the Speaker, the Minister in charge, etc. A sitting
High Court judge or a district judge could be appointed only after consulting with the Chief
Justice concerned.
Tenure of the office of members Provisions regarding the term of office of the chairperson
and other members of the state commission are contained in Section 24, and it is the same as it
was in the national commission. (3 years or 70 years of age, whichever is earlier, and they are
also eligible for reappointment)
Scope and jurisdiction of SHRC
Subject to the principle of res judicata, the State Commission is authorized to investigate
violations of human rights relating to any of the entries in Lists II and III of the Seventh
Schedule of the Constitution of India.
Two or more state governments may, with the consent of a chairperson or member of a state
commission, appoint such a chairperson or member of another state commission
simultaneously if he consents to such appointment.
Functions and Powers of SHRC
In Bihar State Electricity Board v. Bihar State Human Rights Commission (2012), the Patna
HC observed that the State Human Rights Commission has the same functions and powers
within the jurisdiction of the State as the National Commission has under Section 12 of the Act.
HUMAN RIGHTS COURTS
Part IV of the Act: Human Rights Courts
Chapter VI of the Act, comprising Sections 30 and 31, makes the provisions relating to the
creation of Human Rights Courts in each district.
Section 30 of the Act authorizes the State Governments, with the consent of the Chief Justice
of the High Court, to establish Human Rights Courts by Notification, specifying for each
District a Court of Sessions to be a Human Rights Court.
In line with Section 31 of the Act, the State Government shall appoint a public prosecutor or
an advocate who has been in practice as an advocate for at least seven years for the purpose of
conducting matters in the Human Rights Courts. Such a person would be known as a “Special
Public Prosecutor.” It is, however, to be noted that it is not mandatory for the States to create
Human Rights Courts in each and every district, as Section 30 of the Act expressly uses the
expression “the State Government may set up the Courts.” However, in order to provide a
speedy trial of offenses arising out of violations of human rights, it is desirable that states,
particularly those where human rights violations take place in large numbers, should establish
such courts.
Amendments to the Protection of Human Rights Act, 1993
The Act has been amended four times till now. The list of amending acts is as follows:
(1) The Protection of Human Rights (Amendment) Act, 2000
The act was amended to provide the power to make rules retrospectively. Section 40A was
incorporated into the Act to provide for the same.
(2) The Protection of Human Rights (Amendment) Act, 2006
In this amendment Act, a few changes were made to the structure of SHRC, like reducing the
members of SHRCs and changing the eligibility criteria for membership. Likewise, this
amendment Act gave some more powers to the NHRC, like the power to visit jails even without
intimation to the state governments.
This amendment Act also provided that the Chairperson of the National Commission for the
Scheduled Castes and the Chairperson of the National Commission for the Scheduled Tribes
shall be deemed to be members of the NHRC.
(3) The Protection of Human Rights (Amendment) Act, 2019
This amendment Act provides that a person who has served as a Supreme Court Judge, in
addition to the Chief Justice of India, is qualified to be chosen as Chairperson of the
Commission. It also provides to increase the Members of the Commission from two to three,
including one who must be a woman, and further includes include Chairperson of the National
Commission for Backward Classes, Chairperson of the National Commission for Protection of
Child Rights, and the Chief Commissioner for Persons with Disabilities as deemed Members
of the Commission.
The term of the Chairperson and Members of the Commission and State Commissions was
lowered from five to three years by this amendment Act, and a person who has been a Judge of
a High Court was also made eligible to be selected as Chairperson of the State Commission.
Lacune in the Protection of Human Rights Act, 1993
There are some shortcomings in the Act. They are as follows:
▪ The NHRC cannot penalise authorities that do not carry out its orders.
▪ If a complaint is filed more than one year after the event, the NHRC cannot investigate
it.
▪ This Act makes no mention of whether judges (NHRC members) should have a proven
record of human rights activism or experience or qualifications in the area.
▪ Dealing with human rights violations by the armed forces, the commission can simply
ask for a report from the government and then provide recommendations.
▪ There is no statutory requirement to include academics, representatives of NGOs, or
members of civil society that have contributed towards the enhancement of human
rights.
▪ It can only ask the authorities to approach the higher courts to provide relief to the
victims. Within one month, the competent authority must either execute its
recommendations or express its reasons for not doing so.
▪ If private entities violate human rights, the NHRC has no jurisdiction.
▪ It can only provide recommendations for remedies but cannot enforce them.
Conclusion:
The 1993 Act compels all states to establish SHRCs and HRCs in their territories in order to
achieve the goal of timely redress and remedy for all. The issue to examine is that the law does
not specify how Human Rights Commissions should handle such complaints.
The act makes no mention of the jurisdiction of such courts over charges alleging violations of
human rights. This ambiguous and unclear aspect must be resolved by lawmakers as soon as
possible so that the protection provided to human rights and the consequences of existing
legislation are not frustrated.
People in India are now well aware of their constitutional rights, and this is because of the
enactment of the Protection of Human Rights Act, 1993, and the establishment of the National
Human Rights Commission (NHRC). The State Human Rights Commissions are also working
along the same lines as the National Human Rights Commission.
However, it still demands that the Special Courts/Human Rights Courts, as defined in Section
30 of the PHR Act, be continued in order to provide a speedy trial for offenses resulting from
violations of human rights. Apart from that, human rights commissions in India need to be
revamped if they are to truly protect human rights in the country. If the decisions and
recommendations of the commission were made enforceable by the government as well, their
efficacy and authority would be greatly enhanced. Misuse of laws by authorities is widely
recognized as the root cause of human rights violations. Therefore, the NHRC should be
provided more powers for the speedier disposal of cases.