LOK NAYAK JAYAPRAKASH NARAYANNATIONAL INSTITUTE OF CRIMINOLOGY AND FORENSIC SCIENCE Government of India (Ministry of Home Affairs)

Report on National Human Rights Commission

Submitted By:AVINASH RAJPUTM.A CRIMINOLOGY 3RD SEMESTERLNJN NATIONAL INSTITUTE OF CRIMINOLOGY AND FORENSIC SCIENCE.

Content

Acknowledgement

introduction Constitution of the National Human Rights Commission Appointment of Chairperson and other Members of NHRC Removal of a Member of the Commission Distinctive Features of National Human Rights Commission Organization Structure of National Human Rights Commission

Divisions of National Human Rights Commission The Administration Division The Information and Public Relations Division The Policy Research, Projects and Programs Division The Training Division The Investigation Division The Law Division

Functions and Powers of the Commission

Procedure Inquiry into complaints Steps after Inquiry Annual and special reports of the Commission

State Human Rights Commission Appointment of Chairperson and Members of State Commission Resignation and Removal of Chairperson or a Member of the State

Commission

Powers to make Rules Power of Central Government to make rules

Power of Commission to make Regulations

Acknowledgement

I first wish to pay my sincere thanks and gratitude to our Professor Dr. B.N. chattoraj, LNJN NICFS and our course Director Ms. Minakshi Sinha for arrange our visit to the National Human Rights Commission.

Dr. S.K. Jain senior research officer in the National Human Rights Commission (Training Devision), who was very much helpful during the whole study in the National Human Rights Commission (NHRC).

At the very outset I would like to express my deep gratitude and sincere thanks to Mr.Vinudev Sachin DSP in the Investigation Devision for his help, support and guidance at every junction of the preparation of this project. This project would not have been possible without their help and knowledge.

AVINASH

Introduction

The National Human Rights Commission of India was set up in October 12,1993 under “The Protection of Human Rights Act, 1993”. It is an autonomous body, which works independently. The Commission present a positive meaning to the objectives set out in the Protection of Human Rights Act, 1993. During this period, the Commission has also worked effectively to create awareness and to sensitize public authorities for promoting and protecting human rights in the country.

In the early years, the Commission focused on civil and political rights like terrorism and insurgency, prisons, monitoring of custodial deaths, cases in detention, including mental homes and juvenile justice homes etc. However, in the succeeding years, the economic, social and cultural rights have also been given prominence. It is the belief of the Commission that all rights are inter-related and inter-dependent. Apart from working for the eradication of bonded labor and child labor and the rights of the children, women and other weaker or marginalized sections of the society, the Commission has also undertaken work in other fields, such as, right to health, food and education, right of displaced persons due to natural and manmade calamities etc.

The Commission received only 496 complaints of violation of human rights in 1993-94, the first year of its establishment. The number steadily increased over the years and during the financial year 2007-2008, the Commission received 100,616 complaints. The Commission received more than 100,000 complaints every year. The number of complaints increases every year because of growing awareness amongst the people in the country as well as increased faith in the Commission.

Respect for the dignity of an individual and striving for peace and harmony in society, has been an abiding factor in Indian culture. The Indian culture has been the product of assimilation of diverse cultures and religions that came into contact in the enormous Indian sub-continent over time. The international community has recognized the growing importance of strengthening national human rights institutions. In this context, in the year 1991 a UN-sponsored meeting of representatives of national institutions held in Paris, a detailed set of principles on the status of national institutions was developed, these are commonly known as the Paris Principles. These principles, subsequently endorsed by the UN Commission

on Human Rights and the UN General Assembly have become the foundation and reference point for the establishment and operation of national human rights institutions.

Constitution of the National Human Rights Commission

The Constitution of the Commission dealt with in Chapter II of the Act. Section 3 of the Act says:, “ the Central government shall constitute a body to be known to the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

The Commission shall consist of (a) A Chairperson who has been a Chief Justice of the Supreme Court; (b) One Member who is, or has been a judge of the Supreme Court; (c) One Member who is, or has been the Chief Justice of the High Court; (d) Two members to be appointed from amongst persons having knowledge

of, or practical experience in, matters relating to human rights.

The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.

There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him. The headquarters of the Commission shall be Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.

The appointment of the Chairperson and other Members are elaborately discussed

under Section 4 of the Act. The other provisions relate to the removal of a member

of the Commission, the term of office of Members, a member to act as a

Chairperson or to discharge his functions in certain circumstances, the terms and

conditions of service of members, vacancies, etc., not to invalidate the proceedings

of the Commission, the procedure to be regulated by the Commission, the officers and the other staff of the Commission.

Appointment of Chairperson and other Members

(1) The Chairperson and the Members shall be appointed by the President by warrant under his hand and seal;

Provided that every appointment under this sub-section shall be madeafter obtaining the recommendations of a Committee consisting 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 in the Government of India — Member(d) Leader of the Opposition in the House of the People — Member(e) Leader of the Opposition in the Council of States — Member(f) Deputy Chairman of the Council of States — Member

Provided further that no sitting Judge of the Supreme Court or sittingChief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.

(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any [vacancy of any member in the Committee referred to in the first proviso to sub-section (1)

Resignation and removal of Chairperson and Members

(1) The Chairperson or any Member may, by notice in writing under his hand addressed to the President of India, resign his office.

(2) Subject to the provisions of sub-section (3), the Chairperson or any Member shall only be removed from his office by order of the Presidentof India on the ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it by the President, has, oninquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or the Member, as the case may be, ought on any such ground to be removed.

(3) Notwithstanding anything in sub-section (2), the President may, by order, remove from office the Chairperson or any Member if the Chairperson or such Member, as the case may be–

(a) is adjudged an insolvent; or(b) engages during his term of office in any paid employment outside the duties of his office; or(c) is unfit to continue in office by reason of infirmity of mind or body; or(d) is of unsound mind and stands so declared by a competent court; or(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

Distinctive Features of NHRC The NHRC has certain distinctive features not enjoyed by other Commissions/regulatory bodies/autonomous institutions.

1. It is autonomous i.e. it has been created by an Act of Parliament. 2. NHRC is committed to provide independent views on issues within the

parlance of the Constitution or in law for the time being enforced for the protection of human rights. The Commission takes independent stand.

3. NHRC has the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 as listed under Section 13 of the Act

4. Authority to grant interim relief5. Authority to recommend payment of compensation or damages6. Over seventy thousand complaints received every year reflects the trust

reposed in it by the citizens7. NHRC has a very wide mandate

NHRC has unique mechanism with which it also monitors implementation of its various recommendations

Organization Structure of National Human Rights Commission

Divisions of National Human Rights Commission

The Administration Division

This Division is headed by a Joint Secretary, assisted by a Director, Under Secretaries, Section Officers and other secretarial staff, and functions under the overall guidance of the Secretary-General. This Division looks after the administrative, personnel, establishment and cadre matters of the staff and officers of the Commission. The Accounts Branch, functioning under the overall guidance of the Joint Secretary, consists of a Senior Accounts Officer, Assistant Accounts Officers, a Drawing and Disbursing Officer and other staff.The General Section of the Division takes care of housekeeping jobs. The Section mainly deals with procurement of stores, maintenance of office buildings, repair and maintenance of all office equipment, machinery and furniture. It also handles purchase, maintenance and provision of office vehicles/hired vehicles to the Chairperson, Members and Senior Officers of the Commission. The Hindi section of the commission arranges for the translation of complaints from Hindi and other Indian languages into English. It also undertakes translation work of the Commission, including the translation of the monthly Newsletters, Annual Reports and other publications of the Commission. An annual Hindi journal named ManavaAdhikar- NaiDishayen is also published in Hindi.

The Information and Public Relations Division

This Division disseminates information relating to the activities of the Commission, through the print and electronic media, and is headed by an Information and Public Relations Officer, who also functions as the Editor of the monthly Human Rights Newsletter.This Division is responsible for the website and publications of the Commission. The Division also has an Assistant Information Officer. A Public Information Officer has also been appointed for the purpose of facilitating information under the Right to Information Act. The Appellate Authority is the Joint Secretary.

The Policy Research, Projects and Programmes Division

Whenever the Commission, on the basis of its hearings, deliberations or otherwise, arrives at a conclusion that a particular subject is of generic importance, it is converted into a project/ programme to be dealt with by the PRP&P Division.The Division also undertakes and promotes research in human rights and organizes seminars, workshops and conferences on pertinent issues. The PRP&P Division is headed by the Joint Secretary and consists of two Directors, a Senior Research Officer and secretarial staff.

The Training Division

This Division has been created to disseminate information and focus attention on sensitizing various agencies and NGOs, civil society to heighten respect for Human Rights by organizing Human Rights Training Programmes. The Division is headed by a Chief Coordinator, who is a Joint Secretary rank officer. The Chief Coordinator is assisted by a Senior Research Officer and other secretarial staff.

The Investigation Division

When the Commission requires an independent inquiry to be conducted, it is effected through the Investigation Division, which is headed by an officer of the rank of Director General of Police. He is assisted by a Deputy Inspector General of Police, Senior Superintendents of Police, Deputy Superintendents of Police, Inspectors of Police and Constables. The Division also assists the Commission in examining complaints, in scrutinizing reports received from the police and other investigation agencies and in looking into reports of custodial violence or other misdemeanors. In addition, the Investigation division analyzes the intimations and further reports from the State authorities regarding deaths in police and judicial custody; encounter deaths and advising the Commission. The division is also assisting the Training Division in spreading human rights literacy as envisaged in Section 12(h) of the Protection of Human Rights Act, 1993.

The Law Division

This Division is headed by Registrar (Law). The post has a scale of Additional Secretary to the Government of India. The Division services the Commission in the receipt and disposal of complaints relating to human rights violations. The Registrar (Law) is assisted by a Joint Registrar, Deputy Registrars, Assistant Registrars and others. Besides there are four Presenting Officers, coming from the subordinate judiciary, who assist the Commission in dealing with the complaint cases.

Functions and Powers of the Commission

Wide powers and functions have been given to the Commission under section12 of

the Act. The paragraph (a) of section 12 provides, that the Commission can enquire

suo motu action against any public servant against whom a complaint has been registered for violation of human rights. Section 12(b) provides that the Commission can intervene in any proceeding involving any allegation of a violation of human rights pending before a Court with the approval of such Court. Section 12(c) empowers the Commission to visit any jail or other institution prior intimation to the State Government, for the purpose of mainly monitoring prison or custodial jurisprudence. The Commission can make recommendations to State Governments on the basis of such visits. The Commission found after visiting many jails that pathetic conditions prevailed in jails in which prisoners are forced to live. In its view this is not due to a lack of ideas but due to apathy and lack of priority accorded to prison conditions and the rights of prisoners and under trials. The Commission has already initiated action to improve prison conditions in India, and started studying all prevailing reports related with prisons.The Commission has recommended the preparation of a new All India Jail Manual and also suggested the revision of the old Indian Prison Act of 1894. The Commission sought help from all who believe that human dignity must not be left when a person enters the gates of a prison.

Section 12(d) empowers the Commission to review the safeguards provided under the Constitution or any law for the time being in force for the protection of human rights and also to recommend measures for their effective implementation. Under Section 12(e) there is a separate provision to review the causes of terrorism, which inhibits the enjoyment of human rights, and to recommend appropriate remedial measures. Section 12(f) provides for the study of all treaties related with international human rights instruments and the making of recommendations for their effective implementation. Section 12 (g) provides for promotion of research in the field of human rights. Section 12(h) empowers the Commission to spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publication, the media, seminars and other available means. Section 12(i) empowers the Commission to encourage the efforts of Non- governmental organizations (NGOs) working in the field of human rights.

Procedure

Inquiry into Complaints

A considerable increase in public awareness of the work of the Commission has been observed. This is reflected in the vast increase in the number of the complaints of human rights violations received by the Commission over the years. Many of the cases received by the Commission were of great poignancy, but they could not be entertained by the Commission because of the Regulation 8 of the Commission. The Commission broadly divides the cases in these following categories: (1) Custodial deaths; (2) Police excesses (Torture, Illegal detention\ unlawful arrest, false implication etc.; (3) Fake encounters; (4) Cases related to Women and Children; (5) Atrocities on Dali’s\Members of Minority community\ Disabled (6) Bonded labor (7) Armed forces\ pare military forces and (8) other important cases.

Once the Commission accepts a complaint, it seeks comments from the concerned government or authority regarding complaint. After receiving the comments of the concerned authority a detailed note on the merits of the case is prepared for the consideration of the Commission. After this, directions and recommendations of the Commission are communicated to the concerned government under Sections 18 and 19 of the Act.

Since its establishment in October 1993, the Commission has directed

compensation in the amount of Rs. 9,76, 68,634\ be paid in 559 cases. In year 2002-2003 the Commission recommended that compensation amounting to Rs. 31,40,000

\- be paid in 39 cases. The Commission during the period beginning from 1 April 2002 to 31 March 2003 registered 68,779 cases and in the same period for 2001 to

2002 the Commission registered 69,083 cases in year 2001-2002. Out 68,779 cases registered in the year 2002 to 2003, 67, 354 complaints were of human rights violations, 1340 related to custodial deaths, 2 concerned custodial rapes and 83

related to police encounters were found. As on 31March 2003, the total number of cases before the Commission was 43,010, which included 9763 cases awaiting preliminary consideration and 33,247 cases in respect of which reports were either awaited from the authorities concerned or the reports had been received and are pending further consideration within the Commission.

In some of the cases the Commission may opt for a personal hearing with the petitioner or any other person on behalf of petitioner for appropriate disposal of this matter. This personal hearing will provide an opportunity for examining any witnesses, if any, in support of the complaint and hearing evidence in support of the

petitioner’s stand. Once the Commission or any other person under its authority undertakes an investigation, the report of the investigation should be submitted within a week of its completion. In some cases, the Commission may allow further time for the submission of reports. If the Commission is not satisfied with any report it may direct fresh investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of the report, the Commission on its own motion, or

if moved in the matter, may direct inquiry to be carried out by it and receive evidence in the course of such inquiry.

Lastly under Section 8(12), the Commission or any of its members when requested by the Chairperson may undertake visits for on-the-spot study and where such a study is undertaken by one or members, a report thereon shall be furnished to the Commission as early as possible.

Steps after Inquiry

On the completion of inquiry, the Commission may take any of the following steps under Section 18 of this Act, namely:

(1) Where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(2) Approach the Supreme Court or the High Court concerned for such directions, orders or units as that Court may deem necessary.

(3) recommend to the concerned government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;

(4) Subject to the provisions of clause (5) provide a copy of the inquiry report to the petitioner or his representative;

(5) The Commission shall send a copy of its inquiry report together with its recommendations to the concerned government or authority who shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission.

(6) The Commission shall publish its inquiry report together with the comments of the concerned government or authority, if any, and the action taken or proposed to be taken by the concerned government or authority on the recommendations of the Commission..

The Commission in several cases recommended prosecution of the public servant responsible for violation of human rights, under section 18(1) of the Act. In the case of violation of human rights, the Commission may recommend under Section 18 (3) of the Act that the concerned State to grant immediate interim relief to the victim or members of the family.

The Commission incorporated elaborate provisions under Section 18(5) of procedural regulations, to make its inquiry more transparent and impartial. After the completion of its inquiry the Commission generally sends report along with recommendations to the concerned government to report and comment within a period of one month, or such further time as the Commission may allow. This recommendation also includes what action should be taken in a particular case.

Lastly, Section 18(6) stipulates that the Commission should publish its report in detail. In must include the comments of the Government or authority. The report

should also include what action the concerned government or authority is going to take in a particular case.

However, the Commission has been deprived of the similar power while dealing with armed forces. Section 19 restricts the power of NHRC to initiate investigation on its own in the case of violation of human rights by armed forces. According to Section 19 (a) (1) of the Act the Commission has to seek a report from the Central Government and after receiving of the report from Central Government, it may, either not proceed with the complaint or, as the case may be, make its

recommendations to that Government. The power to make recommendations, when necessary, in section 19 must be read along with subsections (1) and (3) of section 18 which deal with the nature of recommendations on conclusion of the inquiry,

when closure of the complaint is not considered appropriate. There is nothing restrictive in section 19 to curtail this power of the Commission and the express power to make recommendations leads necessarily to this conclusion. Jurisdiction of the NHRC to deal with the complaints against armed forces is subject only to a restrictive procedure.

It seems from the above provisions that the Commission is fully equipped to handle any situation, but in practice the Commission is powerless, when a State government refuse to comply with its recommendation. The Commission is endowed with only recommendatory power, and recommendations of the Commission are not legally binding. However, in most of the cases recommendations of the Commission have been complied with by the concerned government or authority, as is apparent from the prosecutions of several police officials, and the compensation awarded to victims in various cases.

Annual and special reports of the Commission

(1) The Commission shall submit an annual report to the Central Government and to the State Government concerned and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

(2) The Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action taken or proposedto be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any.

State Human Rights Commission

Appointment of Chairperson and Members of State Commission

(1) The Chairperson and Members shall be appointed by the Governor by warrant under his hand and seal:

Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of(a) The Chief Minister — Chairperson(b) Speaker of the Legislative Assembly — Member(c) Minister in-charge of the Department of Home, in that State — Member(d) Leader of the Opposition in the Legislative Assembly — MemberProvided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the Opposition in that Council shall also be members of the Committee. Provided also that no sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.

(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of [any vacancy of any Member in the Committee referred to in sub-section (1)

Resignation and Removal of Chairperson or a Member of the State Commission

(1) The Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed to the Governor, resign his office

(1A) Subject to the provisions of sub-section (2), the Chairperson or any Member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such Member, as the case may be, ought on any such ground to be removed.

(2) Notwithstanding anything in sub-section (1A), the President may by order remove from office the Chairperson or any Member if the Chairperson or such [Member]5, as the case may be –(a) Is adjudged an insolvent; or(b) Engages during his term of office in any paid employment outside the duties of his office; or(c) Is unfit to continue in office by reason of infirmity of mind or body; or(d) Is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

Powers to make Rules

Power of Central Government to make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely :-

(a) The salaries and allowances and other terms and conditions of service of the Chairperson and Members under section 8;(b) The conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under subsection (3) of section 11;(c) Any other power of a civil court required to be prescribed under clause (f) of sub-section (1) of section 13;(d) The form in which the annual statement of accounts is to be prepared by the Commission under sub-section (1 ) of section 34; and(e) Any other matter which has to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the sessionimmediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Power of Commission to make Regulations

(1) Subject to the provisions of this Act and the rules made there under, the Commission may, with the previous approval of the Central Government, by notification, make regulations to carry out the provisionsof this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-

(a) The procedure to be followed by the Commission under subsection(2) of Section 10;(b) The returns and statistics to be furnished by the State Commission;(c) Any other matter which has to be, or may be, specified by regulations.

(3) Every regulation made by the Commission under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session or the successive sessions aforesaid, both Houses agreein making any modification in the regulations or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.