Human rights and statutory commissions

The first principle

Human rights are most often violated by the state itself, through custodial torture, encounter killings or neglect in a jail, and the state is also the body asked to remedy them. A human rights commission is an attempt to build, inside the state, an institution independent enough to question the state. Its authority comes less from the power to compel than from the power to find facts, make them public and make the government answer for them. Whether that is enough, and how it can be made stronger, is the question that runs through every commission in this note.

The core

The National Human Rights Commission

• The law. The Protection of Human Rights Act (PHRA), 1993 created the National Human Rights Commission (NHRC) and allowed states to create State Human Rights Commissions (SHRCs). It defines human rights as the rights to life, liberty, equality and dignity guaranteed by the Constitution or embodied in international covenants and enforceable by Indian courts.
• Composition after the 2019 amendment. The chairperson is a person who has been Chief Justice of India or a judge of the Supreme Court (before 2019 only a former Chief Justice could be appointed). There is one member who is or has been a Supreme Court judge, one who is or has been Chief Justice of a High Court, and three members with knowledge of human rights, at least one of whom must be a woman.
• Deemed members. The chairpersons of the National Commission for Scheduled Castes (NCSC), the National Commission for Scheduled Tribes (NCST), the National Commission for Women (NCW), the National Commission for Minorities (NCM), the National Commission for Backward Classes (NCBC), the National Commission for Protection of Child Rights (NCPCR) and the Chief Commissioner for Persons with Disabilities are deemed members; the last three were added in 2019.
• Appointment and tenure. The President appoints members on the recommendation of a committee of the Prime Minister, the Speaker of the Lok Sabha, the Union Home Minister, the Leaders of the Opposition in both Houses and the Deputy Chairman of the Rajya Sabha. Tenure is three years or until the age of seventy, with eligibility for reappointment; the 2019 amendment cut it from five years. Removal is by the President for proved misbehaviour or incapacity after an inquiry by the Supreme Court.

Functions and powers

• Inquiry. The NHRC inquires, on its own motion (suo motu) or on a petition, into violation of human rights or negligence in preventing it by a public servant.
• Beyond complaints. It can intervene in court proceedings involving human rights with the court's approval, visit jails and other institutions where people are detained, review constitutional and legal safeguards, study treaties, promote research and spread awareness of human rights.
• Powers. In an inquiry it has the powers of a civil court, can use the investigating staff of the Union or state governments, and has an investigation division of its own, staffed largely by police officers on deputation.
• After the inquiry. It can recommend compensation, prosecution of the guilty officials or interim relief, and can approach the Supreme Court or a High Court. The government must report the action taken within a month, and the annual report is laid before Parliament with a memorandum of action taken.
• Human rights courts. The Act lets a state government, with the concurrence of the Chief Justice of the High Court, specify a Court of Session in each district as a human rights court for speedy trial.

Limits built into the law

• Recommendatory. The NHRC cannot enforce its own recommendations; the government may reject them by giving reasons.
• The one year bar. It cannot inquire into a matter more than one year after the act complained of, which shuts out old cases of torture or disappearance.
• Armed forces. On complaints against the armed forces it can only seek a report from the Union government and make recommendations; it cannot investigate on its own.
• Dependence on government investigators. Its investigators come from the police, the institution most often complained against.

Dimensions

• International. The Paris Principles, adopted by the United Nations General Assembly in 1993, set the standards for national human rights institutions: a broad mandate, independence guaranteed by law, pluralism in membership, adequate funding and powers to investigate. The Global Alliance of National Human Rights Institutions (GANHRI) accredits institutions against them, and the re accreditation of the NHRC's "A" status has been deferred, including in 2023, over concerns about the appointment process, the use of police officers in investigations and the lack of diversity among members.
• Federal. SHRCs, headed by a former Chief Justice or judge of a High Court, deal with subjects in the State and Concurrent Lists, but several have long vacancies and small staffs, so complaints flow to the NHRC.

Statutory commissions for vulnerable sections

• National Commission for Women Act, 1990. The NCW has a chairperson, five members and a member secretary nominated by the Union government. It reviews laws affecting women, inquires into complaints and takes suo motu notice of deprivation of women's rights, inspects jails and remand homes for women, and advises on planning.
• National Commission for Minorities Act, 1992. The NCM monitors safeguards for the six notified minorities (Muslims, Christians, Sikhs, Buddhists, Parsis and Jains) and inquires into complaints.
• Commissions for Protection of Child Rights Act, 2005. The NCPCR reviews safeguards for children and monitors the Right of Children to Free and Compulsory Education Act, 2009 and the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Chief Commissioner for Persons with Disabilities. Under the Rights of Persons with Disabilities Act, 2016, the office takes up complaints of deprivation of rights and has some powers of a civil court.
• National Commission for Safai Karamcharis. Created by an Act of 1993 that lapsed in 2004, it has continued as a non statutory body by government resolution, and it monitors the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

In practice

How a commission is constitutionalised

• The steps. A Bill to amend the Constitution is introduced in either House to insert a new Article setting out the commission's composition, functions and powers. It is passed by a special majority in each House under Article 368; ratification by half the states is needed only if it touches a federal provision listed in Article 368(2). After the President's assent, the old statute is repealed or amended and rules on tenure and service are framed.
• Precedents. The Eighty ninth Amendment (2003) created the NCST by inserting Article 338A, and the One hundred and second Amendment (2018) turned the statutory NCBC into a constitutional body under Article 338B.

Would constitutional status make the NCW more effective?

• What it would add. Constitutional status would protect the NCW's existence and functions from change by ordinary law, oblige the government to place its reports in Parliament with reasons for rejecting recommendations, and raise its standing with states.
• What it would not add. The experience of the NCSC and NCST shows that constitutional bodies remain recommendatory and face vacancies and delays. Gender justice depends more on independent appointments, its own budget, presence in districts, follow up on complaints and the enforcement of laws by the police and courts than on the source of the commission's authority.
• Public and private spheres. In the public sphere the NCW has acted on workplace harassment under the Sexual Harassment of Women at Workplace Act, 2013, representation and safety in public spaces. The private sphere, where domestic violence, dowry and marital disputes occur, is harder to reach, because a national body sitting in Delhi depends on protection officers, police and family courts to act within homes. Its record is therefore stronger in reviewing laws and responding to high profile cases than in sustained help to individual women.

One umbrella or many commissions?

• The case for merging. A Dalit woman facing caste violence could approach the NHRC, the NCSC and the NCW, which duplicates work and risks conflicting findings. A single body would save money, give one window to citizens and allow consistent standards.
• The case against. Each commission brings expertise and a focused voice for its group; the NCSC, NCST and NCBC are constitutional and cannot be merged by statute; and one body handling all complaints would be overloaded and likely to neglect smaller groups.
• A middle path. The PHRA already links them through deemed members. A stronger joint forum, a shared complaints portal that routes each case to one body, and a rule that only one commission inquires into a given matter would remove duplication while keeping specialised voices.

Issues and way forward

• Recommendations ignored. Governments may sit on or reject recommendations, especially against senior officials. A rule that recommendations bind unless rejected within a fixed time by a reasoned order, which is placed before the legislature, would shift the burden to the government.
• Investigations by the accused. When the police are the alleged violators, police investigators cannot be neutral. A cadre of investigators recruited directly by the commission would meet the Paris Principles.
• Appointments. Selection drawn mainly from retired judges and officials narrows the view. Wider eligibility, including civil society and women, and transparent selection would add pluralism and trust.
• Time and jurisdiction limits. The one year bar and the armed forces exception exclude serious cases. Relaxing the time limit for grave violations and allowing independent inquiry, with safeguards for operations, would close the gap.
• Resources and vacancies. Commissions with vacant posts and thin budgets cannot follow up. A separate budget voted by Parliament and time limits for filling vacancies would protect independence.
• Follow up. Publishing the status of every recommendation on a public dashboard would let citizens and Parliament see which governments comply.

Common confusions

• NHRC and NCSC. The NHRC is statutory, under the PHRA, and covers all human rights; the NCSC is constitutional, under Article 338, and covers safeguards for Scheduled Castes. Status differs, but both are recommendatory.
• Deemed members and members. Deemed members are chairpersons of other commissions who sit on the NHRC for most of its functions; they are not selected by the NHRC selection committee.
• Paris Principles and GANHRI. The Paris Principles are the standards; GANHRI is the global network that accredits institutions against them.
• Constitutional status and binding power. Constitutional status protects a body's existence; it does not make its recommendations binding.

For the exam

• Keyword bank: Protection of Human Rights Act, NHRC, SHRC, deemed members, Paris Principles, GANHRI accreditation, suo motu, one year bar, armed forces exception, recommendatory body, NCW, NCPCR, constitutionalisation, Article 368, umbrella commission.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "India now has more than half a dozen national commissions for human rights and vulnerable groups, yet almost all of them share one feature: they can find facts but cannot compel action."
  • Introduction with a report: "The Paris Principles of 1993 require national human rights institutions to be independent by law, plural in membership and able to investigate, and the repeated deferral of the NHRC's re accreditation shows how far Indian practice still falls short."
  • Conclusion: "Commissions assert themselves against the powerful not through status alone but through independent investigators, transparent appointments and a legal duty on governments to act on their findings or explain why not."
  • Conclusion: "Rather than one umbrella body, India needs its many commissions to work as a network, with one entry point for citizens and the specialised voice of each group intact."