The Protection of Human Rights Act, 1993
Saagneek Ghosh
Jogesh Chandra Chaudhuri Law College.
Introductory Note: As a penultimate law student and an aspiring Company Secretary, my interest lies in corporate law and the various intricacies surrounding it. I’m currently working and trying to gain practical and hands-on experience and I hope to become a good corporate lawyer someday.
Introduction
India is the largest democracy in the world. Being a democratic country, one of the main objectives of one is to defend and uphold the rights of its citizens. To effect the protection of such rights, the Constitution has included within its ambit, the provision of Fundamental Rights, thereby giving due recognition to human rights.
The conception of ‘human rights’ emerged from 5th Century BCE, with the inception of Cyrus Cylinder, which is often considered as the first declaration of human rights. Political thinkers like Socrates, Plato and Cicero discussed the concept of natural law and justice, thus laying the early foundations of human rights.
As an aftermath to the Second World War, which resulted in many lives being lost, the Universal Declaration of Human Rights was adopted in 1948. However, the problems of human rights abuse following the second world war persisted as the UN did not have a mechanism for legally enforcing the declaration.
The United Nations resorted to adopting two new covenants to solve this issue:
1) The Covenant on Civil and Political Rights, and
2) The Covenant on Economic, Social and Cultural Rights.
Following the adoption of these covenants, many countries, including India, became a signatory and ratified them as well. Thereafter, these signatories became legally bound by these covenants.
India, in particular, came under the spotlight and heavy criticism from the western countries following a series of human rights violations, mainly in Jammu and Kashmir. Following pressure from the western world, and considering national demand for the protection of human rights as well, The Human Rights Commission Bill was first introduced in the Lok Sabha in May 1992.
Protection of life, liberty and dignity of an individual is an important objective of the Constitution. For the fulfilment of this objective, provisions concerning the Fundamental Rights were made in the Constitution. Additionally, Part IV to the Constitution also lays a framework for the areas in which the government must make laws. The Protection of Human Rights Act, 1994 was enacted to further the objectives as enshrined in the Constitution.
Important Provisions of the Act.
The Protection of Human Rights Act, 1993 consists of 43 Sections, organized into 8 chapters.
Chapter I
Preliminary.
Chapter II
The National Human Rights Commission.
Chapter III
Functions and Powers of the Commission.
Chapter IV
Procedure.
Chapter V
State Human Rights Commission.
Chapter VI
Human Rights Courts.
Chapter VII
Finance, Accounts and Audit.
Chapter VIII
Miscellaneous.
Meaning of ‘Human Rights’ under the Act.
Section 2(d) of the Act defines the word human rights as a bundle of rights which relate to life, liberty, equality and dignity of the individual as guaranteed by the Constitution of India. Thus, it is to be noted that this above mentioned definition of human rights is inclusive and is parallel to the rights as enshrined in the Constitution.
As the international covenants are not directly enforceable in Indian courts, this definition of human rights strictly narrows its scope to the ones provided for in the Constitution and makes them enforceable in the courts of law as well.
The National Human Rights Commission.
Chapters II, III and IV of the Act enunciate on the constitution, composition, and functions of the National Human Rights Commission.
Composition of the National Human Rights Commission.
According to section 3 of the Act, the National Human Rights Commission shall consist of the following persons,
A chairperson, who has been the Chief Justice of India, or a Judge of the Supreme Court.
One member, who is, or formerly was a judge of the Supreme Court.
One member, who is, or formerly was a judge of a High Court.
Three members, of whom, one shall be a woman, and they shall be selected on the basis of their knowledge, or practical experience, in the field of human rights.
Chairpersons of the National Commission for Backward Classes, the National Commission for Minorities, the National Commission for Protection of Child Rights, the National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes, the National Commission for Women, the Chief Commissioner for Persons with Disabilities will also be deemed to be members of this Commission.
The Act has also provided that the headquarters of the Commission shall be in Delhi, and the Commission, with the prior approval and consent of the Central Government, may establish offices in other states as required.
Appointment and Tenure of Members of the NHRC.
Section 4 enumerates the appointment of the chairperson and other members. This section provides for a selection committee, which shall recommend candidates to the President. The committee shall consist of the following persons:
The Prime Minister, who shall be the chairman of the above mentioned selection committee.
Speaker of the Lok Sabha
Minister in-charge of the Ministry of Home Affairs in the Government of India.
Leader of the Opposition in both the Rajya Sabha, and the Lok Sabha.
Deputy Chairman of the Rajya Sabha.
This section has also provided that no sitting Judge, or the Chief Justice of the Supreme Court can be appointed without the prior approval of the Chief Justice of India.
Section 6 of the Act has provided for the term of office of the members. According to this section, the chairperson, or any other member shall hold office for a term not exceeding three years from the date on which he took office, or until they attain the age of 70, whichever is earlier. However, they shall be eligible for re-appointment.
Procedure for removal of the Chairperson or any other Member
Section 5 of the Act contains provisions regarding the resignation or removal of the chairpersons or the members of the commission. According to the Act, the chairperson, or any other member, may resign by notice in writing to the President of India.
Sub-section (2) provides that the chairperson or any other member shall only be removed on ground of proved misbehaviour or incapacity. However, such a matter is to be reported to the Supreme Court, and it shall inquire into the matter and provide a detailed report on the same. Only on the basis of that report can such removal be effected.
Furthermore, the Act has enshrined the President to effect the removal of the chairperson or any other member, who:
Is adjudged insolvent.
Engages in any sort of paid employment outside the duties of his office.
Is unfit to continue discharging his duties by way of infirmity of mind, or of body.
Has been declared by a competent Court to be of unsound mind
Is convicted and sentenced to imprisonment for an offence, which in the opinion of the President, involves moral turpitude.
Functions and Powers of the Commission
As per Section 12 of the Act, the functions and powers of the commission are as follows:
The NHRC has been given the power to inquire into any complaints related to the violation of human rights. Such inquiry may be made suo motu, or on account of a petition presented before it.
NHRC may intervene in any judicial proceeding involving allegations of violations of human rights.
It has the right to go to any jail or facility run by the state governments in order to look into the living circumstances of the prisoners. On the basis of its observations, it can also advise the authorities.
The NHRC has the authority to review the Constitution's human rights-protecting provisions and offer suggestions for corrective action.
Analyze the factors, such as acts of terrorism, that prevent people from exercising their human rights and offer appropriate solutions.
One of its functions is to study treaties and other international instruments so as to make suggestions for their effective implementation.
The NHRC also undertakes and promotes research in the field of human rights and its protection.
Through publications, seminars, and other media, the NHRC works to raise awareness of human rights literacy and the protections available for these rights in a variety of societal sectors.
Co-ordinate and encourage NGOs and other institutions that work in the field of Human RIghts.
Any further duties that the National Commission for Human Rights deems essential to the advancement of human rights may be carried out.
Section 13 has also provided that the NHRC, whilst investigating into a case, has all the powers of a civil court trying a case under the Code of Civil Procedure.
Section 14 grants the Commission the authority to hire any Central Government or State Government officer or intelligence agency to carry out an investigation pertaining to the inquiry.
The State Human Rights Commission
Chapter V (Sections 21 - 29) deals with the composition, constitution and the functioning of the State Human Rights Commission. Section 21 gives power to the State Government to establish a body known as the Human Rights Commission for that state.
Composition of the SHRC
According to Section 21, the State Human Rights Commission shall consist of the following members:
A chairperson, who must have been the Chief Justice or a Judge of a High Court.
A member who is, or has been the Judge of a High Court,
A member who possesses knowledge or has practical experience in the field of human rights.
Section 21(3) provides that there shall be a secretary, who in turn, shall be the Chief Executive Officer of the Human Rights Commission and shall exercise all administrative and financial functions therein.
Appointment, Tenure and Removal of the Members of the State Human Rights Commission
As per Section 22, the Governor of the state shall appoint the chairperson and the two other members of the Commission. However, such an appointment shall only be made on the recommendation of a committee consisting of the following members:
The Chief Minister, who shall be the chairperson of the selection committee.
Speaker of the Legislative Assembly
Minister in-charge of the Department of Home in that particular state.
Opposition leader of the Legislative Assembly.
The procedure for removal and resignation of the chairperson, or any other member of the State Human Rights Commission is in tandem with the procedure as prescribed for the National Human Rights Commission. The only difference is that in case of the State Human Rights Commission, a notice for resignation must be given in writing to the Governor.
Section 24 prescribes the term of office for the chairperson and the other members of the Commission. Similar to the National Human Rights Commission, the chairperson and the members of the State Human Rights Commission can hold office for a term not exceeding three years from the date on which he enters office, or till he attains the age of 70, whichever is earlier.
Human Rights Court
Chapter VI of the Act, containing sections 30 and 31 elucidate on the provisions of Human Rights Courts in each district.
Section 30 has authorized the State Governments to create and assign a District Court of Sessions to be a Human Rights Court. Such establishment can only be made by prior consultation with the Chief Justice of the High Court in that state and the notification must also be made to that effect.
For the purpose of handling cases in the Human Rights Courts, the State Government must designate a public prosecutor or an advocate who has practiced for at least seven years in accordance with Section 31 of the Act. They would be referred to as "Special Public Prosecutors." However, as Section 30 of the Act specifically states that "the State Government may set up the Courts," it should be highlighted that the States are not required to establish Human Rights Courts in every area.
Judicial Decisions with regard to the Protection of Human Rights Act, 1993.
Paramjit Kaur v. State of Punjab AIR 1999 SUPREME COURT 340.
This is a landmark case in which the Supreme Court laid down several guidelines regarding the powers and functions of the National Human Rights Commission.
Pursuant to a petition filed before the Supreme Court seeking clarification for a previous order which directed the National Human Rights Commission to investigate the blatant human rights violation in the state of Punjab, the Supreme Court laid down some guidelines.
In exercising its authority under Article 32 of the Indian Constitution, the Supreme Court gave the National Human Rights Commission the authority to handle specific issues as specified in its ruling. The Supreme Court's directives bind all national authorities, and they must act in the court's favor. This also applies to the National Human Rights Commission. The Commission would operate in accordance with Supreme Court directives rather than the Act that established it. There are no restrictions placed on the National Human Rights Commission's ability to decide the cases that the Supreme Court refers to.
People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568
In this landmark case, the Supreme Court took up the issue relating to the appointment of the members of the National Human Rights Commission. In this case, the appointment of a senior ex-police officer, who also served as the director of the CBI, as a member of the NHRC was challenged.
The question that arose before the Supreme Court was whether Section 3(2)(d) of the Act required any sort of interpretation so as to exclude police officers from being appointed as members of the National Human Rights Commission.
Another issue was that the second respondent, a former police officer, was appointed in violation of international covenants since the "Paris Principles" (which were later adopted by the UN General Assembly and UN Human Rights Council) forbade the appointment of a civil servant, such as a police officer, to such a Commission.
The Supreme Court dismissing the petition held that Section 3(2)(d)'s unambiguous wording allows no room for interpretation. It only indicates that any two individuals who possess actual competence or knowledge of human rights concerns are qualified to serve on the Commission. No conclusion based on bias or popular opinion can taint the clear text of this clause. No group of persons is excluded from this area as long as they meet the Selection Committee's requirements for knowledge of or practical experience with human rights concerns. The Court cannot construe an exclusion clause to bar police officers from serving since Section 3(2)(d) of the Act contains no exclusion and its wording is clear.
Conclusion
Thus, it is evident that the Protection of Human Rights Act, 1993 has met major milestones when it comes to the protection and promotion of human rights. It is owing to this Act that many people have become aware of their rights. However, there is still room for improvement in this Act, as this Act has not made out the exact jurisdiction of the Human Rights Courts. Moreover, the commissions need to be revamped if the objective of this Act is to be achieved. The effectiveness and authority of the commission's conclusions and recommendations would be substantially increased if the government also made them enforceable. Only in that case would the National Human Rights Commission be fully effective.
References
● The Protection of Human Rights Act, 1993.
● The Constitution of India, 1950
● https://www.researchgate.net/publication/384227380_PROTECTION_OF_HUMAN_RIGHTS_IN_INDIA