DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
SESSION: 2020-2021

FINAL DRAFT
SUBJECT: Human Rights Law
“Critical Analysis of Human Rights Institutions India”

UNDER THE SUPERVISION OF: SUBMITTED BY:

DR. ABDULLAH NASIR HARSH GAUTAM
Assistant Professor (Law) Enrolment No: 170101061
Department of Legal Studies BA.LLB(Hons.)- VII Sem.

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 INTRODUCTION

The republic of India is the biggest democracy in the world. And being a democratic
country one of the core and fundamental object of the state is the protection of the basic
rights of the people. The Universal Declaration of Human Rights contains civil, political,
economic, social and cultural rights. Our Constitution guarantees most of the human rights
contained in Universal Declaration of Human Rights. Part III of the constitution contains
civil and political rights, whereas economic, social and cultural rights have been included in
Part IV of the Constitution.1 The constitution through Directive Principles of State Policy
enshrined in the Part IV of the Constitution, ascertains the duties on the government to
work for the welfare of the people and protection of human rights of the people. These are
considered as guiding principles for the state to make policies regarding distributive justice,
right to work, right to education, social security, just and humane conditions of work, for
promotion of interest of weaker section, raise the standard of nutrition and standard of
living and to improve public health, protection and improvement of environment and
ecology etc. so that each individual can enjoy rights to the fullest.2
The Protection of human rights is important for the development and growth of an
individual personality, which ultimately contributes in the development and prosperity of
the nation as a whole. The protection of the dignity of an individual is essential for
harmony in the society, as its violation can have grave impact on individual in particular
and on society in general. Each individual is entitled to some rights, which are inherent to
human existence. 3 The concept of human right has gone through various stages of
development and has taken long time to become the concept of present day. These rights
had place in all ancient societies though referred by different names, it includes civil rights,
liberties and social cultural and economic rights.4

1 J.S. Badyal, ABC of Political Science, 73 (Raj publishers (Regd.), Jalandhar, 2005
2 S. K. Kapoor, International Law & Human Rights, Central Law Agency, Allahabad, 17th edition 2009

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SUPREME COURT AS A HUMAN RIGHTS INSTITUTION

It is constitutional set up like that of India; the role of judiciary to protect human rights of the
citizens is of primary importance. Supreme Court and High Courts are empowered to take
action to enforce and safeguard these rights. The machinery for redress is provided under
Articles 32 and 226 of the constitution. An aggrieved person can directly approach the
Supreme Court or High Court of the concerned state having jurisdiction for the protection of
the fundamental rights and to redress the grievances and enjoyment of fundamental rights.
The judiciary as a human rights institution not just protects and safeguard like a guardian but
it also it has recognized certain unremunerated rights in form of judicial activism whereby
interpreting the fundamental rights and widened its scope.
The apex court in the case of Maneka Gandhi v. Union of India5, has interpreted the right to
life and has widened its scope and deduced the un-enumerated right by stating that the right to
life incudes the right to live with human dignity. The principle of locus standi, which states
the right to move to the court, whereby only aggrieved person can approach the court for
redress of his grievances has been relaxed by the judiciary in form of Public Interest
Litigation as in various cases it has stated that the fundamental principle of our constitution
includes the free and fair access to Justice. In the case of S.P. Gupta v. Union of India6, the
apex Court held that:
“Any member of the public can approach the court for enforcing the Constitutional or legal
rights of those, who cannot go to the court because of poverty or any other disabilities.”
A Person who in case of emergency can even write letter to the court for making complaints
of violation of his rights or any situation where such violation is taking place. The
marginalized sections of the society are most vulnerable and prone to the gross violation of
human rights. Most vulnerable sections of society in India include children, women and
socially and educationally weaker sections of society. The Judiciary has taken many steps to
ensure their protection and of their human rights of these sections. Children are more prone to
exploitation and abuse. The rights of the children need special protection because of their
vulnerability due to age and lack of capacity to think. There are many instances where
judiciary intervened for ascertaining the rights of children. In the case of

3 AIR 1978 SC 597

4 AIR 1982 SC 149

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Labourers working on Salal project v. State of Jammu and Kashmir7, the apex Court held that
child below the age of 14 years cannot be employed and allowed to work in construction
process. Court has issued various directions related to the matter of child labor as well. The
court in case of Vishal Jeet v. Union of India8 asked the governments to come up with
advisory committee to make suggestions and recommend for the eradication of child
prostitution and to evolve any schemes to ensure that proper care and protection to the victim
girls and children is done. The Court has further in Gaurav Jain v. Union of India9 showed its
concern about the scheme for rehabilitation of minors involved in prostitution and held that
juvenile homes should be used for rehabilitation of these minors and other such neglected
children. The apex court in the case of Sakshi v. Union of India10 expressed the desire and the
need to establish procedure that would help the child victim to testify at ease in the court and
held that in camera proceedings should be held.
In the famous case of Prem Shankar v. Delhi Administration,11 the Supreme Court made the
remark by stating that the practice of using handcuff and fetters on prisoners violates the
guarantee of human dignity. In another landmark judgment the apex court in D.K. Basu v.
State of West Bengal12 looking at the custodial torture and violation of rights of prisoners
came out with guidelines to protect the rights of the prisoners and laid down prescribed
procedure in form of various guidelines for arrest and detention to prevent the any such
violence and observed that right to life include right to live with human dignity. It is the
primary and utmost responsibility of the state to not only protect the human rights of the
people from any violation but also for the prevention of such violations by providing the
requisite means for the realization of it and further ensuring human development.

5 AIR 1984 SC 117

6 1990 (3) SCC318
7 1997 (8) SCC 114
8 AIR 2004 SC 3566
9 1980 (3) SCC 538
10 1997 (1) SCC 416

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 CRITICAL ANALYSIS OF THE IMPACT OF NATIONAL HUMAN RIGHTS COMMISSION

For the fourth time in a row the NHRC was accredited with grade ‘A’ status of institution
by the Vienna GANHRI ratings agency.13 However, it came with a note that there are
concerns over the composition and structure as to how the NHRC is functioning. The
supreme court of India in a recent case has also raised the specific concern as to why
NHRC is turning into a ‘Toothless Tiger’. Therefore it is pertinent to understand the
structure and working loopholes that are present in the act as well as the composition and
funding system. 14 For instance in the Gujarat Communal Riot’s Case15 the commission
took suo motu action on communal riots that occurred in different places in Gujarat in early
2002. The commission took cognizance based on media reports and prepared a confidential
report, which was later published by the commission. However, The Commission observed
that the State has failed to discharge its primary and inescapable responsibility to protect
the rights to life, liberty, equality and dignity of all of those who constitute it. Whether it is
with respect to the Chakma Tribe or bonded labor issues or prison reforms in India the
NHRC has clearly played a significant role. Now its because of the NHRC guidelines only
that any custodial death case has to be reported to the commission.

THE STRUCTURAL FAILURE AND RESOURCE MANAGEMENT ISSUES

The case with most human rights commissions are that they functioning with less than the
prescribed Members. This limits the capacity of commissions to deal promptly with
complaints, especially as all are facing successive increases in the number of complaints.
The growing scarcity of resources is another big problem. It has further added to the large
chunks of the budget of commissions go in office expenses, leaving disproportionately
small amounts for other crucial areas such as research and rights awareness programs. No
doubt, the NHRC has been effective in manner to get such status however is deluged with
too many complaints. Hence, in recent days, NHRC is finding it difficult to address the
increasing number of complaints, which are growing exponentially. As the commission
human rights commissions primarily draw there staff from government departments either

13 Available at: https://scroll.in/article/845857/granted-the-national-human-rights-commission-is-a-toothless-

tiger-but-cant-it-even-growl(Last Visited: August 29, 2018)

14 P. Sukumar Nair, Human Rights in a Changing World, 35 (Gyan Publishing House, New Delhi, 2011)
15 Ibid

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on deputation or reemployment after retirement the internal atmosphere is usually just like
any other government office. Strict hierarchies are maintained, which often makes it
difficult for complainants to obtain documents or information about the status of their
case.16

FAILURE TO INVESTIGATE CASES OF CUSTODIAL TORTURES WHERE SPECIAL LAW APPLIES

Torture has not been expressly defined in the Constitution or in other penal laws. However,
India has signed various international conventions relating to Prohibition of Torture and
degrading Humane Treatment like CAT.17 While interpreting the broader perspective of
Torture the Supreme Court in case of Shatrughan Chauhan v. Union of India18 while
analyzing the ambit of Torture in cases of execution of death sentence made the following
remark:
“...Undue, inordinate and unreasonable delay in execution of death
sentence does certainly attribute to torture which indeed is in violation of
Article 21 and thereby entails as the ground for commutation of sentence.”
In Sunil Batra v. Delhi Administration19, the Supreme Court in clear term opined that the
fundamental rights do not flee the person as he enters the prison although they may suffer
shrinkage necessitated by incarceration. However, it is interesting to note that no Indian law
or Ordinance define what constitutes ‘Custody’. The court in case of Niranjan Singh v.
Prabhakar Rajaram Kharote,20 tried to interpret the term custody within the purview of the
section 439 of Criminal Procedure Code and observed that the detention by police in the
name of interrogation without taking a person into formal custody and other like
terminological dubieties are unfair evasions of the straightforwardness of the law.
What the commission fails to investigate and condemn is the trials conducted under special
laws, as prior report and approval from the central government is necessary. It clearly
undermine and override the founding principle of constitutional and statutory safeguard and

16 Available at: http://www.insightsonindia.com/2016/07/09/insights-editorial-toothless-tiger-nhrc-needs-

powers-apex-court/ (Last Visited: 29 August, 2018)

th

17 D.K. Basu v. State of West Bengal, AIR 1997 SC 610

18 (2014) 3 SCC 1
19 AIR 1978 SC 1675
20 AIR 1980 SC 785

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gives Public servant the unquestionable power in the name of security and in form of
Sovereign Immunity specially under acts like AFSPA, BSF Act where illegal detention and
Torture is not prohibited and remains unregulated in the name of National Security.

SALIENT FEATURES OF THE NHRC COMMISSION

NHRC was constituted under Section 3 of the 1993 Act for better protection of human
rights. The term ‘human rights’ is defined in Section 2(d) of the 1993 Act, which reads as
follows:

Section 2(d): “Human rights” means the rights relating to life, liberty, equality and dignity
of the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.”

It is autonomous i.e. it has been created by an Act of Parliament. 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 an
independent stand. NHRC has the powers of a civil court. The Authority can grant interim
relief. The Authority can recommend payment of compensation or damages. Over seventy
thousand complaints received every year reflect the credibility of the Commission and the
trust reposed in it by the citizens. NHRC has a very wide mandate and NHRC has unique
mechanism with which it also monitors implementation of its various recommendations.21

ANALYSIS OF THE FUNCTIONS OF THE COMMISSION

The following are the main functions of the commission:

i. To inquire into the violation of human rights or abatement thereof either on its own
or on a petition submitted by an affected party or on his behalf by any person, or
negligence shown by a public servant in the prevention of such a violation.
ii. To intervene in any of the proceedings pending before a court with the permission
of such a court on any complaint of violation of human rights.
iii. To visit any jail, or any other institutions where persons are detained or lodged for
purposes of treatment reformation or protection under the control of a State
government with an advance notice to study the living conditions of the inmates and
to make recommendations.
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 iv. To review the safeguards for the protection of human rights provided by the
constitution or any of the existing law and to suggest measures to the Central and
State governments for their effective implementation.
v. To review all the aspects that inhibits the enjoyment of human rights including the
acts of terrorism and recommends the remedial measures to the Government.
vi. To study the treaties and other international instruments on human rights and make
recommendations to the Central government for their effective implementation.
vii. To undertake and promote research in the field of human rights
viii. To propagate the concept of human rights and to promote the awareness for their
protection among the various sections of the society, it can undertake publication of
books or pamphlets or conduct seminars, or use the media or any other means
available to it.
ix. To promote and support the non-governmental organizations and institutions in the
field of human rights.22

21 Supra note 3 at 97
22 Section 12(1) of the Protection of Human Rights Act, 1993

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 CRITICAL ANALYSIS OF HUMAN RIGHTS COURT

One of the objects of the Protection of Human Rights Act, 1993 as stated in the preamble of
the Act, is the establishment of human rights courts at district level. The creation of Human
Rights Courts at the district level has a great potential to protect and realize human rights at
the grassroots. The Protection of Human Rights Act, 1993 provides for establishment
Human Rights Courts for the purpose of providing speedy trial of offences arising out of
violation of human rights. It provides that the state Government may, with the concurrence
of the Chief Justice of the High Court, by notification, specify for each district a Court of
Sessions to be a Human Rights Court to try the said offences. The object of establishment
of such Courts at district level is to ensure speedy disposal of cases relating to offences
arising out of violation of human rights. In each district, one Sessions Court has to be
specified for trying "offences arising out of human rights violation". But it is silent about
taking of cognizance of the offence. However, not a single state has specified a Human
Rights court so far, that’s why recently the honorable Supreme Court issued notices to all
States ordering them to respond about this lapse in two weeks. “The Supreme Court asked
States why exclusive human rights courts had not been set up yet. During a hearing, the
Court highlighted how the human rights law of 1993 makes States responsible for setting
up exclusive human rights courts with special public prosecutors in every district. “But till
now not a single State has done it,” Chief Justice Dipak Mishra remarked.”23

23 Available at: https://www.thehindu.com/news/national/why-no-exclusive-human-rights-

courts-yet- supreme-court-asks-states/article22367101.ece(Last Visited: August 25, 2018)
 RECOMMENDATIONS
I. It should be mandatory for the state commissions under Section 21(1) and Section
30 of the Act to constitute Human rights courts at district level and state level.
II. The limitation of One year as provided to approach the commission should be
increased where the complainant is able to establish sufficient cause for not filling
the complaint within the period of limitation provided.
III. The investigative agency as well as the staff for the investigation of cases should be
independent for the commission for the smooth functioning of the commission.
IV. The NHRC should have the power to suo motu investigate matters of custodial
torture and human rights violation issues relating to Armed forces protected under
special laws without the intervention of the Central government.
V. There should be time barred implementation of recommendation given by the
National commission for the concerned department else effective reprisal
mechanism should be in place.
VI. Periodical survey and report should be made mandatory in a quarterly basis rather
than yearly basis and publication of the same on the official web site and relevant
and associated departments should be made compulsory.
VII. Free legal aid camps and awareness building programs can be a value addition for
creating awareness among stakeholders and vulnerable groups.
VIII. The syllabus of school and colleges to provide for a holistic approach towards
human rights issues can introduce certain compulsory and credit courses about
human rights institutions in our country.
IX. There should be amendment to section 36 so as to empower the National
commission to take cognizance or investigate into any matter pending before any of
the subsidiary state commission to safeguard the principle of efficient and speedy
justice.
X. Another important strategy that can be applied is creation of local offices of
National Human rights commission or within its mandate the sub-offices in the
local limits of district for the efficiency and effective reprisal of matters pending or
suo motu taken cognizance instead of moving to the New Delhi office or filling
cases thereto
 CONCLUSION

It is important for us to note that NHRC or any such other institution is not just the panacea
for every human rights violation across the country. The primary objective of any such
commission is not to adjudicate but to help and ascertain framework to check any violation
of rights incidental thereto. They would tend to be effective only under a given set of
circumstances and a acquired mandate, but most importantly, a lot depends on the level of
funding, functional independence, and institutional autonomy they get from the center. It is
important for us to note that in 25 years since the existence of National human rights
commission it has made some path breaking recommendations as well, therefore it is not
just the effectiveness but also the very structure of functioning has to be appreciated to
identify the central challenges that lies ahead and works for tackling the same to promote
and protect human rights by the mandate of the Act.