Objectives and Applicability of the Act

The Protection of Human Rights Act, 1993 (PHRA) is a significant piece of legislation enacted by the Parliament of India. It came into force on 28 September 1993. The Act was a response to the growing awareness and demand, both domestically and internationally, for a more systematic and effective mechanism for the protection and promotion of human rights in India. It also aimed to fulfill India's commitments under various international human rights treaties it had ratified.

Objectives of the Act

The main objectives behind the enactment of the PHRA were:

• To provide for the establishment of national and state-level human rights institutions in India.
• To inquire into allegations of violation of human rights by public servants or those acting under their instigation or with their consent or connivance.
• To recommend measures for the effective promotion and protection of human rights.
• To increase human rights awareness and literacy in the country.
• To harmonise domestic law and practice with international human rights standards.

The Act 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 (Section 2(1)(d)). The 'International Covenants' are defined as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the International Covenant on Civil and Political Rights (Section 2(1)(f)), although India has not ratified the Optional Protocol to the ICCPR or the ICESCR Optional Protocol.

Applicability of the Act

The PHRA extends to the whole of India. It provides for the establishment of:

• The National Human Rights Commission (NHRC) at the central level.
• State Human Rights Commissions (SHRCs) in the States (though establishment is optional for states).
• Human Rights Courts at the district level for the speedy trial of offences arising out of human rights violations.

The Act empowers these bodies to inquire into complaints of violations of human rights or abetment thereof, or negligence in the prevention of such violations by a public servant (Section 12(a) for NHRC, Section 17(1)(a) for SHRCs). This focus on violations by public servants (or those acting under their influence) is a key aspect of the Act's scope regarding inquiries into specific complaints.

The Act provides a statutory framework for the functioning of national and state-level human rights institutions, aiming to strengthen the infrastructure for human rights protection in the country.

Establishment of National Human Rights Commission (NHRC) (Section 3)

Section 3 of the Protection of Human Rights Act, 1993, mandates the establishment of the National Human Rights Commission (NHRC) by the Central Government. The NHRC is an independent statutory body established to promote and protect human rights in India. Its headquarters are in New Delhi.

Composition

The NHRC is composed of a Chairperson and four other Members (Section 3(2)). The composition is designed to bring together individuals with relevant legal, judicial, and human rights expertise:

• Chairperson: A person who has been a Chief Justice of the Supreme Court of India. (Initially, only former Chief Justices were eligible; an amendment in 2019 also allowed a former Judge of the Supreme Court to be appointed Chairperson).
• One Member: A person who is, or has been, a Judge of the Supreme Court.
• One Member: A person who is, or has been, the Chief Justice of a High Court.
• Three Members: Persons having knowledge of, or practical experience in, matters relating to human rights. (Initially, there were two such members; increased to three by the 2019 amendment, with at least one being a woman).

In addition to the Chairperson and Members, the Chairpersons of certain National Commissions are deemed to be Members of the NHRC for specific purposes, contributing to its holistic approach. These include the Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes, and the National Commission for Women. The Chief Commissioner for Persons with Disabilities and the Chairperson of the National Commission for Protection of Child Rights were added by the 2019 amendment.

The NHRC has its own Secretary-General, who is its chief executive officer.

Appointment and Removal of Members

The Chairperson and Members of the NHRC are appointed by the President of India based on the recommendation of a high-powered Committee (Section 4(1)). This Committee is composed of:

• The Prime Minister (Chairperson)
• The Speaker of the House of the People (Lok Sabha)
• The Minister in-charge of the Ministry of Home Affairs
• The Leader of the Opposition in the House of the People
• The Leader of the Opposition in the Council of States (Rajya Sabha)
• The Deputy Chairman of the Council of States

This multi-party committee structure is intended to ensure the independence and credibility of appointments.

The Chairperson and Members hold office for a term of three years or until they attain the age of seventy years, whichever is earlier (Section 6, amended in 2019 from five years). They are eligible for re-appointment for another term of three years.

The Chairperson or any Member can be removed from office by the President only on grounds of proved misbehaviour or incapacity, after the Supreme Court, on a reference being made to it by the President, has on inquiry reported that the Chairperson or such Member ought on any such ground be removed (Section 5). This stringent removal process is designed to safeguard the independence of the Commission members.

Functions of NHRC (Section 12)

Section 12 of the Protection of Human Rights Act, 1993, outlines a broad range of functions for the National Human Rights Commission, enabling it to promote and protect human rights effectively across various domains. These functions allow the NHRC to act as a watchdog, investigator, advisor, and advocate for human rights in India.

Inquiry into complaints of human rights violations

One of the primary functions of the NHRC is to inquire, suo motu (on its own motion) or on a petition presented to it by a victim or any person on his behalf, into complaints of (Section 12(a)):

• Violation of human rights or abetment thereof; or
• Negligence in the prevention of such violation by a public servant.

The Commission has the powers of a civil court when inquiring into complaints (Section 13). It can summon witnesses, require the discovery and production of documents, receive evidence on affidavits, requisition public records, and issue commissions for the examination of witnesses or documents. However, the Act specifies limitations: the Commission generally cannot inquire into any matter after the expiry of one year from the date on which the act constituting the violation is alleged to have been committed (Section 36(2)). It also usually does not inquire into matters pending before a State Human Rights Commission (Section 36(1)). The Commission can also visit jails and other detention places to study the living conditions of inmates (Section 12(c)).

After completing an inquiry, the Commission can recommend to the concerned Government or authority the initiation of proceedings for prosecution or other suitable action against the responsible person, or the grant of compensation or damages to the victim or his family (Section 18). However, the Commission's findings are recommendatory; it does not have the power to directly prosecute or enforce its recommendations, relying on the state to implement them. It submits an annual report and special reports on its work to the Central and State Governments, which are laid before the respective Legislatures.

Intervention in court proceedings

The NHRC has the function to intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court (Section 12(b)). This allows the Commission to assist the courts by providing expertise or perspectives on human rights issues arising in judicial cases, acting as an amicus curiae (friend of the court). This function allows the NHRC to contribute to the development of human rights jurisprudence in India.

Review of safeguards in relation to human rights

The NHRC is mandated to review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation (Section 12(d)). This involves examining existing legal and policy frameworks to identify gaps or weaknesses in human rights protection and suggesting ways to strengthen them. This function allows the NHRC to proactively work towards improving the human rights situation in the country by advocating for legislative and policy reforms.

Recommendations to Government

Beyond specific case inquiries and review of safeguards, the NHRC has a broader advisory role. It can recommend to the Central Government and State Governments measures for the effective promotion of human rights (Section 12(f)). This includes advising on policy matters, suggesting necessary legislative changes, and recommending administrative actions to improve human rights protection and awareness. The Commission also studies treaties and other international instruments on human rights and makes recommendations for their effective implementation (Section 12(f)).

Other functions of the NHRC listed in Section 12 include:

• Promoting human rights literacy and awareness through publications, media, seminars, and other means (Section 12(h)).
• Encouraging the efforts of non-governmental organisations and institutions working in the field of human rights (Section 12(i)).
• Undertaking research in the field of human rights (Section 12(g)).

In essence, the PHRA establishes the NHRC with a comprehensive mandate to monitor, investigate, promote, and advise on human rights issues in India, acting as a crucial institutional mechanism for safeguarding human rights at the national level, complementing the role of the judiciary and civil society organisations.

Establishment of SHRCs (Section 21)

Recognising the need for human rights protection mechanisms at the state level, the Protection of Human Rights Act, 1993 (PHRA) provides for the establishment of State Human Rights Commissions (SHRCs). Unlike the National Human Rights Commission (NHRC), whose establishment is mandatory, Section 21 of the PHRA states that a State Government may establish a body to be known as the Human Rights Commission of that State.

Composition and powers

Where an SHRC is established, its composition is similar in structure to the NHRC, but with eligibility criteria based on the High Court and District Courts (Section 21(2), as amended in 2019):

• Chairperson: A person who has been a Chief Justice or a Judge of a High Court.
• One Member: A person who is, or has been, a Judge of a High Court or District Judge with a minimum of seven years' experience as District Judge.
• Two Members: Persons having knowledge of, or practical experience in, matters relating to human rights. (Initially, there was one such member; increased to two by the 2019 amendment, with at least one being a woman).

The Chairperson and Members of an SHRC are appointed by the Governor of the State on the recommendation of a Committee (Section 22(1)). This Committee comprises:

• The Chief Minister (Chairperson)
• The Speaker of the Legislative Assembly
• The Minister in-charge of the Department of Home in that State
• The Leader of the Opposition in the Legislative Assembly

If the State has a Legislative Council, the Chairman of the Legislative Council and the Leader of the Opposition in the Legislative Council are also members of the Committee.

The Chairperson and Members of an SHRC hold office for a term of three years or until they attain the age of seventy years, whichever is earlier (Section 24, amended in 2019). They are eligible for re-appointment for another term of three years.

The removal process for the Chairperson or a Member of an SHRC is the same as for the NHRC: they can only be removed by the President of India (not the Governor) on grounds of proved misbehaviour or incapacity, after the Supreme Court has conducted an inquiry and recommended removal (Section 23). This provides a degree of protection from state government influence.

Similar to the NHRC, an SHRC is equipped with investigative powers equivalent to those of a civil court when inquiring into complaints (Section 21(5), referring to Section 13). This allows them to summon individuals, examine evidence, and requisition documents relevant to their inquiry.

Powers and Functions of SHRCs

The powers and functions of State Human Rights Commissions are, for the most part, analogous to those of the NHRC, but their mandate is limited to matters listed in the State List and the Concurrent List of the Seventh Schedule of the Constitution (Section 21(5), referring to Section 12). This territorial and subject-matter limitation prevents overlap with the NHRC's jurisdiction (NHRC handles Union List matters and Concurrent List matters if the state has not established an SHRC or if the case is of national importance).

Key Powers and Functions (Mirroring Section 12 PHRA)

Within their respective state jurisdictions and subject to the limitations mentioned above, SHRCs are empowered to perform functions such as:

• Inquiry into complaints of human rights violations: Suo motu or on petition, inquire into complaints of violation of human rights or abetment thereof, or negligence in the prevention of such violation by a public servant within the state's purview (Section 17(1)(a)). This is their core function for addressing specific grievances.
• Intervention in court proceedings: Intervene in any proceeding involving human rights allegations pending before a court within the state, with court approval (Section 17(1)(b)).
• Visit jails and detention places: Visit any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, to study the living conditions of the inmates and make recommendations (Section 17(1)(c)).
• Review of safeguards: Review the safeguards provided by or under the Constitution or any law in force in the state for the protection of human rights and recommend measures for their effective implementation (Section 17(1)(d)).
• Study treaties and international instruments: Study treaties and other international instruments on human rights and make recommendations for their effective implementation (Section 17(1)(e)).
• Promote human rights literacy and awareness: Undertake and promote research, spread human rights literacy, and promote awareness through various means (Section 17(1)(f) & (g)).
• Encourage NGO efforts: Encourage the efforts of NGOs and institutions working in the field of human rights within the state (Section 17(1)(h)).

Like the NHRC, the SHRC's powers are primarily recommendatory. After an inquiry, an SHRC can recommend to the State Government or concerned authority to initiate action, grant compensation, or take other suitable measures. The State Government is required to provide comments on the recommendations and the action taken within one month (Section 18 PHRA, applied to SHRCs via Section 21(5)).

SHRCs play a vital role in decentralising human rights monitoring and redressal, making these mechanisms more accessible to the public at the state level, which is particularly important in a large and diverse country like India. However, the effectiveness of SHRCs can vary depending on factors like their staffing, resources, political will of the state government, and the independence of their members.

Other related bodies

In addition to the NHRC and SHRCs, India has established several other national statutory commissions and bodies aimed at protecting and promoting the rights of specific vulnerable groups. While not solely focused on human rights in the broad sense of the PHRA, the mandates of these commissions significantly overlap with and contribute to the protection of human rights of the groups they serve. They are often seen as complementing the work of the human rights commissions.

National Commission for Women (NCW)

Established by the National Commission for Women Act, 1990, the NCW is a statutory body that works to protect and promote the interests of women in India. Its functions include investigating and examining matters relating to the safeguards provided for women under the Constitution and other laws, making recommendations for effective implementation, reviewing laws affecting women, taking up cases of violation of women's rights, and advising the government on policy matters related to women. The Chairperson of the NCW is a deemed Member of the NHRC.

National Commission for Protection of Child Rights (NCPCR)

Established by the Commissions for Protection of Child Rights Act, 2005, the NCPCR is a statutory body mandated to protect, promote, and evaluate the implementation of child rights in India, as defined by the Constitution and the UN Convention on the Rights of the Child (CRC). Its functions include examining safeguards for child rights, inquiring into violations, recommending redressal, reviewing factors inhibiting enjoyment of child rights (like poverty, trafficking, abuse), and promoting child rights awareness. The Chairperson of the NCPCR is a deemed Member of the NHRC (as per the 2019 amendment).

National Commission for Minorities (NCM)

Established under the National Commission for Minorities Act, 1992, the NCM monitors the working of safeguards provided in the Constitution and laws enacted by Parliament and State Legislatures for the protection of minorities. It looks into specific complaints regarding the deprivation of rights and safeguards of minorities and makes recommendations for effective implementation of safeguards and measures for the welfare of minorities. The Chairperson of the NCM is a deemed Member of the NHRC.

National Commission for Backward Classes (NCBC)

Initially established as a statutory body by the NCBC Act, 1993, it was granted constitutional status by the 102nd Amendment Act, 2018, making it Article 338B of the Constitution. The NCBC's duty is to investigate and monitor all matters relating to the safeguards provided for socially and educationally backward classes under the Constitution or under any other law or order of the Government and to evaluate the working of such safeguards. It also inquires into specific complaints regarding deprivation of rights and safeguards of the backward classes. While primarily focused on constitutional safeguards related to affirmative action, its mandate touches upon socio-economic rights and non-discrimination for OBCs. The Chairperson of the NCBC is a deemed Member of the NHRC (as per the 2019 amendment, as it replaced the National Commission for Safai Karamcharis in this role).

National Commission for Scheduled Castes (NCSC) and National Commission for Scheduled Tribes (NCST)

These are constitutional bodies established under Article 338 (NCSC) and Article 338A (NCST) of the Constitution. Their duties include investigating and monitoring all matters relating to the safeguards provided for Scheduled Castes and Scheduled Tribes under the Constitution or any other law or order, and inquiring into specific complaints regarding the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes. They play a crucial role in protecting the rights of SCs and STs, particularly against discrimination and atrocities, aligning with the principles of equality, non-discrimination, and rights of minorities/indigenous peoples. The Chairpersons of the NCSC and NCST are deemed Members of the NHRC.

These specialised commissions, by focusing on the rights and issues specific to women, children, minorities, backward classes, and Scheduled Castes/Tribes, provide targeted human rights protection and advocacy, complementing the broader mandate of the NHRC and SHRCs. Their inclusion as deemed members of the NHRC also facilitates coordination and a more comprehensive approach to human rights protection in India.