Role of National human rights commission in the protection of human rights
The National Human Rights Commission is an expression of India’s concern for the protection and promotion of human rights. It is a unique expert body, which is created under the Protection of Human Rights Act, 1993, for examining and investigating the complaints relating to violations of human rights, as also the negligence on the part of any public servant in preventing such violation.
In India, the National Human Rights Commission can play a vital role in influencing the policy making and sometimes even policy initiations, facilitating protection and promotion of human rights, such institutions provide an excellent mechanism for building public opinion and strong alliances and partnerships with non-governmental organisations and other human rights activists for influencing the national agenda on human rights. Apart from the resolution of disputes brought to such institutions, voice articulated, studies conducted and research produced by these institutions carry great credibility and respectability and thus, can be important source material in the quest of securing and protecting human rights. There is a need to evolve more meaningful interaction and networking among these institutions.
Characteristics of the Commission:
The establishment of the National Human Rights Commission was the result of criticism against India, both at National and International level, regarding human rights situation in Kashmir and Punjab. Several India watchers thought at that time that, the creation of the NHRC was a tactical move on the part of the Government of India to take some of the pressure off, so far as the alleged violation of human rights in Kashmir and Punjab were concerned. Due to this background that the Commission needs is the credibility and acceptance, which will ultimately come from the work it does, it stand on human rights issues and the fate of its recommendations. Its advocacy for abolition of TADA, its stand on custodial deaths, rights of women and children, and the police atrocities have all led to an atmosphere where the NHRC has made its presence felt. Its recommendations have generally been accepted by the Governments on various matters.
Despite all this, and taking into account the vastness and variety of human rights issues in India, the Commission faces a gigantic task. It may be mentioned that the Act is a very comprehensive piece of legislation which, apart from the Commission, it also envisages State Human Rights Commissions at State level and Human Rights Courts at District level for ‘better protection of human rights’. Therefore, the Commission happens to be the only institution operational under the Act. An attempt here is made to analyze and assess the statutory framework of NHRC from the point of view of credibility and acceptance. Because ultimately these will determine whether it can face the challenge of creating a human rights culture in this country. Credibility or acceptance of any institution created by the State such as a National Human Rights Commission depends at least upon three factors i.e. autonomy and transparency.
It involves the capacity to take an independent decision uninfluenced by any vested interest including the State. Autonomy is ensured by the manner of appointments to the Commission, the statutory status and the position of its members, security of their tenure and unconditional financial grants to carry out its activities. All these matters have been adverted to in the Act. The Commission consists of five members including its Chairperson. While the Chairperson has to be a person, who has been the Chief Justice of the Supreme Court, the other two members have to be respectively the Judge of the Supreme Court and the Chief Justice of a High Court. Two members have to be appointed from amongst those persons who have knowledge of, or practical experience in, matters relating to human rights. So far, only Judges have been appointed as the members of the Commission.
It is pertinent to mention that the eligibility criteria for membership of the Commission in terms of qualification and background would have to be carefully considered. The guiding principle must be that eminence of the members should enhance the credibility, prestige and the moral authority of the Commission. The members should also intimately aware of the field conditions in the country with respect to various aspects of human rights, in particular, the legal and enforcement aspects and the welfare thrust of the administration in respect of vulnerable sections of the society.
As per Sec. 6 of the PHRA, the Members of the Commission, including its Chairperson are appointed for a five years term and can be removed earlier only on the grounds of proved misbehavior or incapacity after an inquiry made by the Supreme Court in this regard. That accords the members necessary security of tenure.
The Members of the Commission, including its chairperson are appointed by the President of India after recommendations by a nominating Committee chaired by the Prime Minister and consisting of Speaker of the Lok Sabha, Minister in-charge of the Ministry of Home Affairs in the Government of India, Leader of Opposition of Lok Sabha, Leader of Opposition in Rajya Sabha, and Deputy Chairmen of Rajya Sabha as Members. The Constitution nominating committee is such that the persons of stature and integrity will be appointed by the Commission.
Financial autonomy is also very crucial for the Commission. Section 32 of the Protection of Human Rights Act requires the Central Government to pay the Commission by way of grants such sums of money as the Government ‘may think fit for being utilized for the purposes of the Act’ after due appropriation made by the Parliament. Thus, the actual amount to be handed over to the Commission depends upon the goodwill of the Government.
In the functioning of the Commission, transparency is another factor crucial for its creditability and acceptance. It is ensured by the openness and fairness of the procedures adopted to pursue matters before it. The Commission has framed detailed regulations which govern its procedures to make an inquiry. The Commission either proceeds to inquire into the matter itself or it may hand over the case for further investigation for which it maintains its own investigative machinery headed by a person not below the rank of a Director General of Police. Thus, the Commission does not depend upon the State for investigation. The investigative machinery works under the control and direction of the Commission.
To ensure more transparency, outsiders can be appointed as investigators or observers. To ensure fairness, the regulations require the commission to afford, in its discretion, a personal hearing to the petitioner or any other person if the Commission considers it necessary for the appropriate disposal of the matter before it. Witnesses who appear before it, may also be cross-examined and an opportunity of reasonable hearing is given to a person who might be adversely affected by the findings of the Commission.
The openness with which the Commission is supposed to function, is further clear from the fact that it is required to provide a copy of its inquiry to the complainant, make its decision public and place its Reports before the Parliament. The Act and the Regulations made there under, thus ensure openness as well as fairness of the proceedings.
Composition of the Commission:
The Commission shall consist of –
i) a Chairperson who has been a Chief Justice of the Supreme Court;
ii) one Member who is, or has been, a Judge of the Supreme Court;
iii) one Member who is, or has been, the Chief Justice of a High Court;
iv) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
Apart from this, the Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes [and the National Commission for Scheduled Tribes] and National Commission for Women, shall be deemed to be Members of the Commission for the discharge of functions enumerated in clauses (b) to (j) of Sec.12 of the Act.
Every appointment shall be made by the President on a warrant under hand and seal appoints the Chairperson and other members, after obtaining the recommendations of a committee composed of–
a) The Prime Minister ….. Chairperson
b) Speaker of the House of the People ….. Member
c) Minister-in-charge of the Ministry of Home Affairs ….. Member
d) Leader of the Opposition in the House of People ….. Member
e) Leader of the Opposition in the Council of States ….. Member
f) Deputy Chairman of the Council of States ….. Member