ROLE OF NHRC IN INDIA: A CRITICAL ANALYSIS By- Josheca Mukerji

ROLE OF NHRC IN INDIA: A CRITICAL ANALYSIS

Authored By- Josheca Mukerji

 

Abstract

The human rights are the rights which no one can be deprived of without a grave affront to justice. Yet, unfortunately, instances of human right violations are not very uncommon in today’s world.  In India, the National Human Rights Commission, established under the Protection of Human Rights Act, 1993, is responsible for the protection and promotion of human rights in the country.  Undoubtedly, NHRC has and continues to play a crucial role in preserving human rights. However, several factors like instances of human right violations, lacunae in the system etc. emphasize on the need to scrutinize the role played by NHRC in various spheres over the years.

 

The paper aims to critically analyze the role of NHRC in India by first, considering relevant contemporary data and statistics related to NHRC, briefly outlining its major contributions in different spheres throughout the years, enlisting some major cases decided by the Commission, and then finally evaluating the lacunae, while also making recommendations for better functioning and efficacy of the Commission.

 

Introduction

Humans are rational beings who, by their virtue of being human, possess certain basic and inalienable rights. These human rights are inherent in the humans since their very existence and become operative with their birth. They are those minimum rights which every individual must have against the State or other public authority by virtue of his being a member of human family, irrespective of any other consideration.[1]

 

The ‘natural rights’ embrace within its ambit civil rights, civil liberties and social, economic and cultural rights which are sine qua non for overall development of individuals and maintenance of human dignity. The significance of human rights is universally accepted because of the legal, moral and political bearing of these rights. Therefore, these rights are to be protected, preserved, cherished and defended. With the inevitable increase in the control over humans’ actions by the government, there is a rise in the need for protection of these rights.[2]

 

In India, the National Human Rights Commission (NHRC) is responsible for the protection and promotion of human rights, which is defined by Section 2(1)(d) of the Protection of Human Rights Act, 1993 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.’[3]

 

Human Rights in India

In India, the concept of Human Rights can be traced back to ancient times. Hindu texts like Gita, Vedas, Arthashastra and Dharmashastra gave great emphasis on these rights. The  Mughal era also witnessed recognition of certain rights and the idea of justice. However, during the early British era, India witnessed the greatest violation of several basic rights and this paved way for the emergence of modern Human Rights jurisprudence in India.

 

The basic human rights are enshrined under the Constitution of India under Part III as Fundamental Rights (Article 12 – 35). ‘Fundamental rights are the modern name for what have been traditionally known as natural rights.’[4] The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasion of these rights by the State.[5] Article 13 (2)[6] prohibits the State from making any law which takes away or abridges the rights conferred by Part III.

 

Almost all basic rights in the Universal Declaration of Human Rights (UDHR) and its two Covenants (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights) are covered in the Indian Constitution, either in Fundamental Rights or Directive Principles of State Policy. “The Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted.”[7] Though the words ‘human rights’ are not defined in the UDHR, they have been defined in the Protection of Human Rights Act, 1993 in very broad terms and that these human rights are enforceable by courts in India.[8]

 

The Protection of Human Rights Act, 1993 and Establishment of NHRC

In the early 1990s, in the wake of unrest and violence in Punjab, Jammu & Kashmir, North East and Andhra Pradesh, criticism from foreign countries and pressure on the domestic front due to the awareness among people for the protection of human rights, India established NHRC as a positive response, in 1993 under the Protection of Human Rights Act, 1993. [9]

The PHRA, which came into force on September 28, 1993, provides not only for the establishment of a National Human Rights Commission, but also for State Human Rights Commission in States and, Human Rights Courts.

 

The Commission was established in conformity with the Paris Principles endorsed by the General Assembly of the United Nations.[10] NHRC is also the nodal body for the State Human Rights Commissions (SHRC) and can refer some of its cases to the state bodies. It also actively coordinates with other NHRIs of the world to amplify human rights awareness and has even hosted delegations from UN Bodies, other National Human Rights Commissions and members of civil society, lawyers and political and social activists from many countries.[11] It is the watchdog of ‘human rights’ in the country.

 

NHRC provides independent views on issues within the parlance of the Constitution or in law for the time being enforced for the protection of human rights. The Protection of Human Rights Act, 1993, under Chapter II to IV, deals with the provisions relating to NHRC.

 

Functions of NHRC

Section 12 of the Act[12] provides that NHRC may perform these functions:

Function	Regarding:
Inquire into complaints	Human rights violations               Abetment thereof                         - Negligence by public servant in prevention of such violation     (Suo Motu/ Petition by victim or any person on his behalf)
Intervene in proceedings	Involving allegations of human rights violation (With approval of the concerned court)
Visit, study and make recommendations	Jail/other institutions used for treatment/protection/reformation - Living conditions of inmates therein (After intimation to the State Government)
Study, evaluate and recommend measures	Implementation of Constitutional safeguards Any law for the time being in force for protection of human rights - Effective execution of international treaties and instruments
Review and formulate remedial measures	Aspects inhibiting enjoyment of human rights (including acts of terrorism)
Undertake, promote and encourage	Research in the field of human rights Awareness and literacy relating to human rights (via publication, media etc.) - Endeavors by NGOs and other institutions in the field of human rights
Perform other functions	Essential for human rights protection

In deciding matters referred by the Court, NHRC is not circumscribed by any conditions and the commission acts sui generis. 'The Commission would function pursuant to the direction issued by the Court and not under the Act under which it is constituted’.[13]

 

Powers & recommendations of NHRC

According to Section 13, NHRC has the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of witnesses, discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, and issuing commissions for the examination of witnesses or documents and request of public record.

The 2006 Amendment to the Act modified Section 18 and gave NHRC greater powers and thereby, ensured greater efficacy. It conferred NHRC with the power to recommend to the Central or a State Government or any public authority, during and upon completion of an inquiry, to pay compensation or damages to the complainant/victim/members of his family, approach the court in appropriate cases, initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person(s) and/or take such further action as it may consider appropriate.

 

 

Divisions of the Commission

The six divisions of NHRC are entrusted with specific tasks and work in coordination with each other:

Administrative division	Administrative, personnel, establishment and cadre matters of the staff and officers of the Commission.
Law division	Receipt and Disposal of complaints.
Training division	Sensitizing NGOs, civil societies and other agencies.
Policy research, projects and programs division	Initiates projects, undertakes and promotes research in human rights, organizes seminars, workshops and conferences.
Investigation division	Headed by Director General of Police, is responsible for conducting inquiries.
Information and public relations division	Disseminates information through websites, publications etc.

This study aims to critically analyze the role of NHRC in India by first, considering relevant contemporary data and statistics related to NHRC, briefly outlining its major contributions in different spheres throughout the years, enlisting some major cases decided by the Commission, and then finally evaluating the lacunae, while also making recommendations for better functioning and efficacy of the Commission.

 

Contemporary Data and Statistics

The human rights are intrinsic part of a meaningful life. These are the rights which no one can be deprived of without a grave affront to justice.[14] Yet, unfortunately, instances of human right violations are not very uncommon in today’s world. In India, complaints received by NHRC grew steadily from 496 in 1993-94 to 1,00,616 in 2007-08 and hovered around a lakh till 2015-16.[15] The number has, since then, gradually dipped to 74,968 in 2020-21. As per the Ministry of Home Affairs, 40% of the total cases lodged annually by the Commission are from Uttar Pradesh.[16] This raises doubts as to whether NHRC can actually pre-empt human rights violations or merely focus on providing compensations/damages after the violations have been made. It is, therefore, necessary to scrutinize the role played by NHRC in various spheres over the years.

 

Contribution of NHRC in various spheres

The Commission has been constantly giving its recommendations and contributing immensely in the protection of human rights in various fields. NHRC holds a record of disposal of more than 17 lakh cases, payment of more than one billion rupees to the victims of human rights violations by various state agencies and more than 750 on-spot inquiries. (As of 2018)[17]

 

The Commission’s contribution over the years in various sectors, inter alia, are as follows:[18]

 

1. Consideration of Important Bills/Ordinances and Monitoring their Impact

NHRC has regularly examined and communicated on important Bills/Acts like: The Prevention of Terrorism Bill, 2000, The Child Marriage Restraint Act, 1929 and The Protection from Domestic Violence Bill, 2002. It also reviews the execution of international treaties.

 

1. Civil and Political Rights

NHRC has made significant systematic recommendations like establishment of Human Rights cells in police headquarters. It conducts regular visits to prisons, mental hospitals and Government run Homes, monitors non-discrimination in relief, rehabilitation and reconstruction of victims of violence and displacement. It has suggested improvements for better protection of the rights of under-trials and convicted prisoners and effective prison administration.

 

1. Economic, social and cultural rights

NHRC has also focused on the right to health care (improving access, availability and affordability of health services, cheap and generic drugs) and establishment of central monitoring mechanism for emergency services. It also works towards ensuring non-discrimination in employment, admission in educational institutions, protection of women, children and vulnerable communities.

1. Rights of Women

NHRC has been playing a crucial role in preserving the rights of women and in empowering them. It has made recommendations regarding prevention of trafficking in women and children (Anti-trafficking laws, penal and procedural laws), sexual harassment of women at the workplace, The Protection of Women from Domestic Violence Act, 2005 etc.

1. Rights of Children

Concerns of NHRC for Children include prevention of child labor, child marriages, child abuse, employment of children by the government servants and, establishment of Juvenile Justice system etc.

1. Rights of Marginalized Sections

The Commission has given comprehensive recommendations for the protection of rights of minorities, disabled, refugees, migrants, Dalits and tribals, taken measures for abolishing manual scavenging and bonded labor.  Its intervention in NHRC v. State of Arunachal Pradesh[19] saved over 65,000 Chakma and Hajong refugees, from Bangladesh, from persecution by the local population and secured direction towards conferment of Indian citizenship.[20] It made recommendations for combating atrocities against Scheduled Castes, based on the report by Sri K.B. Saxena to the Centre and State governments. Further, in 2020, Supreme Court allowed NHRC’s intervention in its suo motu writ petition on the problems and miseries of migrant laborers during nationwide lockdown.[21]

1. Food Security

The Commission conducts Emergency Feeding Programs, makes suggestions regarding old age pensions and employment generation etc.

 

1. Relief and Rehabilitation during Natural Calamities and other tragedies

It has taken vital initiatives like monitoring of measures taken after allegations of starvation deaths and super cyclone in Orissa, relief measures undertaken by the Government of Gujarat after the earthquake of January 2001, relief and rehabilitation of the people affected by Tsunami in 2004 etc.

 

Significant recommendations by NHRC[22]

1.  Amendments to PHRA, 1993 for empowering the Commission to grant victim compensation.

2. Ratification to the Convention Against Torture and other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, 1984.[23]

3. Direct reporting by para-military and the Army to NHRC about instances of death or rape of persons in custody.

4.  Involvement of Doordarshan and AIR in enhancing human rights awareness.

5.  Inclusion of questions relating to human rights in Civil Services exams to foster awareness.

 

Major cases decided by NHRC

Case 1: Punjab Mass Cremation Case (1995)

NHRC awarded compensation of ₹1.75 lakh each to the kin of 1051 victims of this gross human rights violation wherein a large number of human bodies were cremated by the Punjab Police in violation of rules of unidentified bodies which affected the dignity of the dead and sentiments of their kin.

 

Case 2: Starvation Deaths in Orissa (Since 1996)

NHRC took cognizance of the reports of starvation deaths in Koraput, Bolagie and Kalahandi districts of Orissa and appointed a special rapporteur to supervise relief and rehabilitation work in the region. The Commission also periodically reviews the steps taken by the government to prevent such deaths.

 

Case 3: Encounter deaths in Andhra Pradesh (1997)

NHRC received complaint from The Andhra Pradesh Civil Liberties Committee about encounter deaths which were allegedly ‘Extra judicial killings amounting to unjustified and unprovoked murders’, along with details of 285 such incidents.[24] It conducted inquires and formulated guidelines detailing procedures in respect of encounter, for the first time, in 1997. The guidelines include investigations by another independent investigating agency like State CBCID, magisterial inquiry and a six-monthly statement from the State Police to the Commission regarding all cases of deaths in police action.

 

Case 4: Deaths due to Silicosis (2007)

NHRC took cognizance on a news report in the Indian Express[25] regarding non receipt of compensation by about 200 tribal victims, working as laborers in quartz crushing factories of Godhra, due to silico-tuberculosis in four years. The Commission directed the report to be forwarded to the Chief Secretaries of Gujrat and Madhya Pradesh for a factual report and also dispatched a team for investigation.

 

Lacunae in the framework

1. Armed forces: The NHRC has restricted jurisdiction to inquire into complaints against the Indian armed forces and BSF. This has led to wide unrest in J&K and North-East India and many human rights violations in areas of insurgency and internal conflict.

2. Recommendatory orders: The Allahabad High Court in State of Uttar Pradesh and Ors. v. NHRC and Ors.[26], observed that the expression “recommend” under Section 18 of PHRA does not mean that the Commission is merely a body to render opinions without enforcement as that would “defeat the statutory object underlying the constitution of such a body” and this view was reasserted by the Madras High Court in the recent case of R. Ayyar v. NHRC.[27]  However, PHRA does not provide NHRC’s recommendations as legally binding on the concerned authorities and it is due to this reason that the recommendations have been repeatedly disregarded by the States in many cases.

3. “Toothless Tiger”: The Supreme Court in Extra-judicial Execution Victim Families Association v. Union of India[28] called the NHRC a “toothless tiger" for its failure in the State of Manipur because of not having powers to penalise the offenders. and ordered a CBI probe into the 1,528 alleged fake encounter deaths in Manipur (including 62 cases of extra judicial killings by Armed Forces), in 10 years.[29]

4. Lacks own investigating officers: NHRC lacks own investigating officers and has to depend on state and central machinery like CBI and state police for investigation which has led to several unsolved cases of human right abuses, especially when the complaints of human rights violations are regarding police excesses. Further, there is a conflict of interest, as the Police officials, investigating for the NHRC, remain attached to their home cadre. 

5. Pendency of cases: There are acute pendency of cases. For example, from 1999 to 2019, the NHRC received a total of 29,845 cases of custodial deaths, out of which 3,116 cases were remaining to be disposed of on April 30, 2021. The figure for dismissal of complaints is 39 over a period of two decades, the maximum of which (15) were dismissed in 2016.[30]

6. Political Interference: With the rise in non-judicial member positions being filled by ex-bureaucrats, NHRC is being seen more as an extension of the government, rather than an independent agency exercising oversight. Certain orders of the Commission have raised suspicions of being politically influenced.

7. Supervision and Accountability: The working of NHRC officials is not supervised. The officials have, at times, been accused of human rights violations themselves.

8. Recruitment Procedure: Recruitment process is vague and not transparent. The criteria to assess candidates is also not specified. It is often contended that the selection committee is weighted towards the ruling government and dissenting voices are not heeded.

Conclusion And Recommendations

NHRC plays a crucial role in preserving and promoting the human rights in the country. However, despite its major contributions, certain drawbacks exist, which if addressed correctly, will immensely increase the efficacy of the Commission. Considering the magnitude of human rights violation in the country, there is an urgent need to increase the effectiveness of the commission.

 

NHRC’s functionality can get enhanced multi-fold if the following recommendations are incorporated:

1. Giving more 'teeth’ like, power to select its own member, amend its own constitution as required.

2. Making its decisions immediately enforceable to avoid resorting to circuitous routes i.e., via reminders to governments or approaching courts to get the recommendations implemented.

3. Giving more powers to investigate complaints against the military.

4. Including human rights activist, having knowledge and on-ground experience of contemporary trends in the field of human rights as members.

5. Instead of staff on deputation, giving NHRC its own trained staff for conducting investigations and dealing with heavy inflow of cases or having independent police complaint commissions to exclusively deal with such issues like in UK and South Africa.

6. Promoting human rights education for helping NHRC function more efficiently.

7. Making more transparent and well-defined recruitment policy.

8. Ensuring accountability on every questionable issue.

Annextures

Source: NHRC 2020-2021 Year End Review[31]

1. Despite the restrictions due to COVID-19 pandemic, the work of the Law division of NHRC was carried out efficiently in the 2020.

 

 2. During the year, 537 cases were closed on the receipt of the compliance reports of the payment of relief amounting to Rs. 31,47,13,810/-

 

 

3. Suo Motu Cognizance was taken in 36 cases during the year.

 

 

 

Source: NHRC Annual Report 2018-2019[32]

4. State/UT-wise number of cases registered in NHRC during 2018-2019

.

 

 

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[1] DD BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (1st ed.1994)

[2] DR. H.O. AGARWAL, HUMAN RIGHTS 03 (16th ed 2016)

[3] Protection of Human Rights Act, 1993, § 2, No.10 of Acts of Parliament, 1994 (India)

[4] Golaknath v State of Punjab, 1967 SCR (2) 762.

[5] A.D. M. Jabalpur v S. Shukla, 1976 AIR 1207.

[6] INDIA CONST. Art 13, cl 2.

[7] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[8] Ram Deo Chauhan v. Bani Kanta Das. and Ors, (2010) 14 SCC 209.

[9] H.O. Agarwal, supra note 2, at 319

[10] NATIONAL HUMAN RIGHTS COMMISSION, INDIA, https://www.nhrc.nic.in  (last visited May 09, 2022)

[11] Id.

[12] Protection of Human Rights Act, 1993, § 12, No.10 of Acts of Parliament, 1994 (India)

[13] Paramjit Kaur v. State of Punjab, AIR 1999 SC 340.

[14] LESLIE MACFARLANCE, The Theory and Practice of Human Rights 07 (1st ed. 1985)

[15] National Human Rights Commission, Annual Report 2018 - 2019,  https://nhrc.nic.in/sites/default/files/Annual%20Report%202018-29_final.pdf  

[16] Special Correspondent, U.P. tops list in human rights violation cases 3rd year in row: MHA, THE HINDU, (Dec. 09, 2021 19:57 IST) https://www.thehindu.com/news/national/other-states/up-tops-list-in-human-rights-violation-cases-3rd-year-in-row-mha/.  

[17] Press Trust of India, NHRC turns 25, PM to attend silver jubilee day function, DECCAN HERALD, (Oct.12, 2018, 14:17 IST), https://www.deccanherald.com/national/nhrc-turns-25-pm-attend-silver-697578.html

[18] National Human Rights Commission, NHRC India, https://nhrc.nic.in/sites/default/files/NHRCindia.pdf

 

[19] NHRC v. State of Arunachal Pradesh (1996) 1996 AIR 1234

[20] Dr. Shubhradipta Sarkar, The tale of a flagging institution, TIMES OF INDIA, (May 13, 2022, 08:44 PM) https://timesofindia.indiatimes.com/blogs/sarkari-thoughts/nhrc-the-tale-of-a-flagging-institution/

[21] Re: Problems and Miseries of Migrant Labourers, 2021 SCC online SC 398.

[22] H.O. Agarwal, supra note 2, at 330

[23] Id, at 331

[24] ‘Encounter’ Deaths in Andhra Pradesh, Excerpts from report of A.P. Civil Liberties Committee, (last accessed: May 13, 2022, 21:28 IST) http://www.unipune.ac.in/snc/cssh/humanrights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/A-%20Andhra%20pradesh/10.pdf

[25] Saurav Kumar, Death stalks Godhra again, in the form of silicon dust, INDIAN EXPRESS, (Sept.19, 2007, 00:59 IST) http://archive.indianexpress.com/news/death-stalks-godhra-again-in-the-form-of-silicon-dust/218599/

[26] State of Uttar Pradesh v. NHRC, (2016) WRIT - C No. - 15570 of 20.

[27] R. Ayyar v. NHRC, (2021) W.P(MD)No.11074 of 2011.

[28] Extra-judicial Execution Victim Families Association v. Union of India, 2017 SCC OnLine SC 74.

[29] Prachi Bharadwaj, CBI directed to probe into the Manipur extra judicial killings by AFSPA, SCC ONLINE (last accessed: May 13, 2022, 21:14 IST) https://www.scconline.com/blog/post/2017/07/14/cbi-directed-to-probe-into-the-manipur-extra-judicial-killings-by-afspa/

[30] Ujjwal Krishnam, The poor record of NHRC, DECCAN HERALD, (Aug. 30, 2021, 01:03 IST)   https://www.deccanherald.com/opinion/main-article/the-poor-record-of-nhrc-1024976.html

[31] National Human Rights Commission, Year End Review 2020–2021, https://nhrc.nic.in/sites/default/files/2020_21YearEndReview.pdf

[32] National Human Rights Commission, supra note 15.