NHRC: Powers, Functions and Challenges – (Part 02)

The National Human Rights Commission (NHRC) of India, established on 12 October 1993, under the Protection of Human Rights Act (PHRA), 1993, plays a pivotal role in safeguarding and promoting human rights in the country. This statutory body operates independently, in alignment with the Paris Principles, to address human rights violations, recommend remedial measures, and foster a culture of respect for human rights.

National Human Rights Commission (NHRC)- An Overview and Critical Analysis

Working of the Commission

• The commission’s main office is in Delhi, but it can set up offices in other parts of India, too. It has the authority to make its own rules regarding its functioning. 
• The National Human Rights Commission (NHRC) possesses several powers essential for fulfilling its mission to safeguard and promote human rights in India. 

Powers of the NHRC

• Investigative Authority Comparable to a Civil Court: During the investigation of complaints, the Commission is vested with powers equivalent to those of a Civil Court adjudicating a case under the Code of Civil Procedure, 1908.  These powers encompass:
  • Summoning and compelling the attendance of witnesses, subjecting them to examination under oath.
  • Facilitating the discovery and production of any document.
  • Accepting evidence on affidavits.
  • Requisitioning any public record or its copy from any Court or office.
  • Issuing commissions for the examination of witnesses or documents.
• Authority to Recommend Compensation for Victims: The NHRC has the jurisdiction to recommend compensation for individuals who have suffered losses or endured hardships due to human rights violations.
• Access to Supreme Court or High Court for Enforcement: In situations necessitating intervention, the NHRC is empowered to approach either the Supreme Court or the High Court to enforce human rights, thereby safeguarding the rights of individuals or groups.
• Suo Moto Cognizance of Human Rights Violations: The NHRC holds the prerogative to take “suo motu” cognizance of human rights violations, allowing it to initiate proceedings even in the absence of a formal complaint.

Functions of the Commission 

• Investigation: Investigating complaints or failure of any public official regarding the violation of the rights, either suo moto or after receiving a petition. 
  • Example: Suo moto cognizance of  Sonbhadra tribal killing in UP and sent a fact-finding mission 
• Prevention and Safeguard: Monitoring the living conditions of the inmates in prisons and making recommendations thereon. 
  • Reviewing statutory safeguards or treaties for the protection of human rights. 
• Research and Promotion: Promoting research and encouraging NGOs in the field of human rights. 
  • While making an inquiry into the complaints, the commission enjoys the powers of a civil court. 
  • It also studies treaties and other international instruments on human rights and makes  recommendations for their effective implementation. 
• Intervention: It intervenes in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court. 
• Review Terrorism Factors: NHRC reviews the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommends appropriate remedial measures. 
• Awareness: NHRC spreads human rights literacy among various sections of society and promotes awareness of the safeguards available for the protection of these rights through publications, the media, seminars, and other available means. 
• Working with NGOs: It encourages the efforts of non-governmental organizations and institutions working in the field of human rights. 
• Role in relation to Armed Forces:  The commission has limited role, powers, and jurisdiction with respect to the violation of human rights by the members of the armed forces. In this sphere, the commission may seek a report from the  Central government and make its recommendations. The Central government should inform the  Commission of the action taken on the recommendations within three months. 
• Nature of NHRC’s Functions: The functions of the commission are mainly recommendatory in nature. 
  • Lack of Punitive Power: It has no power to punish the  violators of human rights nor to award any relief, including monetary relief, to the victim.  
  • Requirement for Action Reporting: But, it should be informed about the action taken on its recommendations within one month. 

Achievements of NHRC 

• Accreditation by GANHRI: The Global Alliance of National Human Rights Institutions (GANHRI), a UN body based in Geneva,  has accredited India’s apex rights watchdog with the ‘A’ status, a perfect score. 
• Timely Resolution of Cases: Cases are resolved within months, and compensation is granted in 90 percent of them.
  • Disposal of more than 17 lakh cases. 
  • Payment of more than Rs 1 billion to victims of human rights violations. 
  • Carrying out over 750 spot inquiries of human rights violations. 
• Role in Combatting Custodial Deaths: Its role has been significant in combating encounter killings and custodial deaths. 
  • The commission’s guidelines in 1997 mandated every custodial death and encounter killing be reported to it within 24  hours. 
• Interventions in Major Incidents: Its interventions in the 2007 Nandigram violence in West Bengal and Salwa Judum-related incidents in Chhattisgarh have been instrumental in developing India’s human rights. 
  • Review of the Child Marriage Restraint Act, 1929 
  • Protocols to the Convention on the Rights of the Child 
  • Trafficking in Women and Children: Manual for the Judiciary for Gender Sensitisation 
  • Combating Sexual Harassment of Women at the Work Place 
  • Setting up of Human Rights Cells in the State / City Police Headquarters

Criticism

• Political Influence in Appointments: The selection committee tasked with appointing the Chairperson and the members to the Commission is dominated by the ruling party, leading to political interference in its working, which is a major drawback.
• “Toothless Tiger”: The Supreme Court has called the NHRC a “toothless tiger,” as it does not have powers to penalize offenders.
• Conflict of Interest: There is a conflict of interest, as police officials on deputation, investigating for the NHRC, remain attached to their home cadre.
• Need for Independent Officers: The NHRC urgently requires officers of its own to carry out independent investigations, and the government should provide resources for the same.
• Recommendatory Functions: The functions of the commission are mainly recommendatory in nature, and the recommendations are not binding on the concerned authorities.
• Lack of Supervision and Accountability: The working of NHRC officials is not supervised, and they do not owe financial accountability to the Comptroller and Auditor General, resulting in accusations of human rights violations against them.
• Obscure Recruitment Procedures: The recruitment procedure is obscure, with a lack of transparent mechanisms, and the criteria to assess candidates is not specified.
• Undefined Investigation Mechanism: The investigation mechanism employed by the Commission is not clearly defined.
• Limited Role Regarding Armed Forces: The Commission has a limited role concerning human rights violations by members of the armed forces.
• Need for New Positions: The commission is struggling to meet the expectations of people who have suffered from human rights abuses all over the country. 
  • To do this effectively, it needs to create new positions. There is also a lack of experienced investigators. 
• Staff Shortages in the Law Division: The Law Division, which is essential to the commission’s work, is also facing staff shortage problems while handling a large number of complaints. 

Suggestions 

• Wider Pool of Candidates: Appointments to the NHRC need to be made from a wider pool of candidates.
• Relaxing Criteria for Higher Judiciary Appointments: The recommendations of the GANHRI can be considered to relax the criteria for the appointment of members from the higher judiciary.
• Prompt Advertisement and Filling of Vacancies: There is a need to advertise vacancies widely and fill them promptly without any delays.
• Clear Definitions for Expert Members: The expert members’ criteria need clear definitions and well-defined benchmarks to resolve the allegation that it is post-retirement security for bureaucrats.
• Limiting Political Engagement: Political representatives should be strictly limited in their engagement as members of the NHRC to ensure independence.
• Establishing an Independent Cadre: There is a need for the NHRC to constitute and maintain an independent cadre of officials that can develop expertise in human rights violation investigations.
• Amending PHRA, 1993: The PHRA, 1993 needs to be amended to include a mandatory time frame for action taken and response formulation by the Government at the Centre and in the states on NHRC recommendations.
• Granting Contempt Powers: The NHRC should be granted contempt powers to ensure effective implementation of its recommendations.

Comparison of Protection of Human Rights Amendment Act, 2019 with 1993 Act

Issues with the Amendments 

• Change in Appointment Criteria: Under the revised law, the government is no longer restricted to appointing former chief justices of the apex court as the NHRC chair; instead, it can now select from any retired judges of the Court.
• This has raised concerns about the potential for nepotism or favoritism.
• Increase in Non-Judge Members: Earlier in NHRC law, the two non-judge members were required to be individuals with knowledge or experience in human rights matters. 
• The recent amendment has increased this number to three, including a female member.
• However, these appointments still fall under government influence and often involve retired officers, lacking specialists or human rights activists.
• Expansion of Ex-Officio Membership: The amendment also expanded the ex-officio members of NHRC to include the chairpersons of the national commissions for backward classes and protection of child rights, alongside the chief commissioner for persons with disabilities.
• Consequently, the commission will have more adjunct members than full-timers.
• Reduction in Duration of Office: The reduction in the duration of office for chairpersons and members is rendering the authority less effective, moving from an already limited position to a further restricted stance with a shortened term of five to three years.
• The government has not provided any clear rationale for this alteration.
• Perception of Increased Government Influence: Nonetheless, it appears that behind the facade of conformity, the primary objective is to augment government influence. 
• The abbreviated tenures and the possibility of re-appointment only serve to widen the opportunities for government favoritism.

Conclusion

Despite its significant achievements in resolving cases and advocating for human rights, the NHRC faces challenges such as limited resources, staffing issues, and the need for greater independence. 

• Strengthening the NHRC through legislative amendments, better appointment processes, and increased autonomy can enhance its effectiveness in protecting human rights and upholding justice in India.

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