The Human Rights Commissions

The State Commissions, section 21. A State Government MAY constitute one, with a Chairperson who has been Chief Justice or a Judge of a High Court, one Member who is or has been a Judge of a High Court or a District Judge with at least seven years as District Judge, and one Member with knowledge of or practical experience in human rights. Section 29 applies most of the National Commission's provisions to it.

Note the verb. Section 3 says the Central Government SHALL constitute; section 21 says a State Government MAY. The State tier is optional, and its unevenness is a standard criticism.

What it may do

Section 12(a). Inquire, on its own motion, on a petition by a victim or by any person on the victim's behalf, or on the direction or order of a court, into a complaint of violation of human rights or abetment of a violation, or of NEGLIGENCE IN THE PREVENTION of such a violation by a public servant.

Read clause (a) closely. Suo motu means a newspaper report is enough to start. "Any person on his behalf" means the victim need not come. And "negligence in the prevention" catches the case where the State did nothing while somebody else did the harm, which is the whole of the communal violence and atrocity jurisdiction.

Section 12(b) to (j). Intervene in a pending court proceeding with that court's approval; VISIT any jail or other institution where persons are detained or lodged for treatment, reformation or protection, to study the living conditions and recommend; review the constitutional and statutory safeguards and recommend measures for their effective implementation; review the factors, including acts of terrorism, that inhibit the enjoyment of human rights; study treaties and international instruments and recommend their effective implementation; promote research; spread human rights literacy; encourage the work of non-governmental organisations; and such other functions as it considers necessary.

Section 13. While inquiring, it has all the powers of a civil court trying a suit: summoning and enforcing attendance and examination on oath, discovery and production of documents, receiving evidence on affidavits, requisitioning public records, and issuing commissions.

Section 14. It may use the services of any officer or investigation agency of the Central or a State Government, with that Government's concurrence, and the officer so used has powers of summons, discovery and requisition subject to the Commission's direction.

What it may NOT do

Section 18, the whole weakness in one section. On completion of an inquiry disclosing a violation or negligence by a public servant, the Commission may RECOMMEND to the Government or authority the payment of compensation or damages, the initiation of proceedings for prosecution or such other suitable action, and such further action as it thinks fit; may APPROACH the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; and may recommend immediate interim relief at any stage.

So what actually binds. Nothing the Commission issues. What binds is a writ the High Court or the Supreme Court grants on the Commission's approach under section 18(b), which is why that clause matters more than its length suggests.

Section 20. The annual and special reports are laid before Parliament or the State Legislature with a memorandum of the action taken or proposed and THE REASONS FOR NON-ACCEPTANCE of any recommendation. The remedy for a refusal is publicity in a legislature, and that is the design.

Section 19, the armed forces. In a complaint against members of the armed forces the Commission may only seek a report from the Central Government, and after receiving it may either not proceed or make recommendations; the Government informs it of the action taken within three months; and the Commission publishes the report, its recommendations and the action taken, and gives a copy to the petitioner. No inquiry, no civil court powers, no witnesses. In the districts where the security forces are deployed this is the most consequential limitation in the Act.

Section 36(2), the one-year rule. Neither Commission shall inquire into any matter after the expiry of one year from the date on which the act constituting the violation is alleged to have been committed. Section 36(1) also bars the National Commission from a matter pending before a State Commission or another statutory Commission.

Why the one-year rule bites hardest here. A villager in a remote district learns of the Commission long after the year has run, and the very conditions that produced the violation are what delay the complaint.

Human Rights Courts

Section 30. For the purpose of providing speedy trial of offences arising out of violation of human rights, a State Government may, with the concurrence of the Chief Justice of the High Court, specify by notification a Court of Session in each district as a Human Rights Court, unless a Court of Session is already specified or a special court already constituted for such offences under another law.

Section 31. For every Human Rights Court the State Government shall specify a Public Prosecutor, or appoint an advocate of at least seven years' practice as Special Public Prosecutor.

The defect students should name. The Act specifies a court but does not define the "offences arising out of violation of human rights" that it is to try, and where a Court of Session is already a special court under another law, section 30 does not apply. The result is that the designation has often been formal.

Where it fits among the remedies

Against a writ petition. The court binds; the Commission recommends. But the Commission investigates, and a writ court will not.

Against the specialised Commissions. The National Commissions for the Scheduled Castes, the Scheduled Tribes and Backward Classes have CONSTITUTIONAL status under articles 338, 338A and 338B, and with it a duty on the Union AND EVERY STATE GOVERNMENT to consult them on major policy. The Human Rights Commission is statutory and the Act imposes no duty of consultation at all, though the National Commission for Women Act 1990 does impose one on the Central Government by its section 16. What the Human Rights Commission has instead is a subject matter confined to no single community.

Against a criminal complaint. The Commission may recommend prosecution; it does not prosecute. Section 30's Human Rights Courts are the trial forum.

And against the Legal Services Authorities. Legal aid under the Act of 1987, worked in [Legal Aid], supplies the lawyer; the Commission supplies the inquiry. In practice a community needs both.

A worked example

In a Scheduled Area, a village alleges that its houses were burned during a security operation. Nobody has been prosecuted. The incident was eight months ago.

Can the Commission act? Yes. Section 12(a) permits a suo motu inquiry or a petition by any person on the villagers' behalf, and section 36(2)'s one year has not run.

What can it compel? Under section 13 it can summon the officers concerned, take evidence on oath, and requisition the station records; under section 14 it can put an investigating agency on the ground under its own direction.

What can it order? Nothing. Under section 18 it may recommend compensation, recommend prosecution, recommend interim relief, or approach the High Court for a writ.

What if the force involved is one of the armed forces of the Union? Then section 19 applies. The Commission may only seek a report from the Central Government, and then recommend or drop the matter, with publication of the report and the action taken.

And if the complaint arrives two years later? Section 36(2) bars the inquiry. The remedy is then a writ petition, a private complaint, or a request that the Commission act on a fresh and continuing grievance rather than the barred incident.

What this does NOT mean

It does not mean the Commission is powerless. Its inquiry powers are a civil court's, its reports go to a legislature with the reasons for any refusal, and section 18(b) lets it take a case to the High Court itself.

It does not mean human rights are only what section 2(d) defines. The definition governs the Commission's jurisdiction; article 21 and the rest of Part III are unaffected by it.

It does not mean a State Commission exists everywhere. Section 21 is permissive, and the coverage and staffing of the State tier are uneven.

And it does not mean the Commission replaces the court. The Supreme Court in Nandini Sundar ordered what no Commission could have ordered, and the difference between a recommendation and an order is the difference between the two chapters.

Quick revision

Protection of Human Rights Act 1993. Section 2(d): human rights are 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. Section 3: the NHRC, Chairperson a former Chief Justice of India or Judge of the Supreme Court, one sitting or former Supreme Court Judge, one sitting or former Chief Justice of a High Court, and three expert Members of whom at least one a woman, after the 2019 amendment; the Chairpersons of six national Commissions and the Chief Commissioner for Persons with Disabilities are deemed Members for section 12(b) to (j). Section 21: a State Government MAY constitute a State Commission; section 29 applies most provisions to it.

Section 12(a): inquiry suo motu, on a petition by the victim or any person on the victim's behalf, or on a court's direction, into violation, abetment, or NEGLIGENCE IN PREVENTION by a public servant. Section 12(c): visits to jails and institutions. Section 13: all the powers of a civil court. Section 14: use of an investigating agency. Section 18: RECOMMEND compensation, prosecution or interim relief, or APPROACH the Supreme Court or High Court for directions. Section 19: for the armed forces, only a report from the Central Government, recommendations, and publication. Section 20: reports laid before the legislature with the reasons for non-acceptance. Section 30: a Court of Session may be specified as a Human Rights Court; section 31, a Special Public Prosecutor. Section 36(1) and (2): no inquiry into a matter pending before another Commission, and none after one year from the act.

Test yourself

1. How does section 2(d) define human rights, and what does the definition govern? As 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 governs the Commission's jurisdiction; it does not limit Part III.

2. State three features of section 12(a) that make the Commission more accessible than a court. It may inquire on its own motion, so a newspaper report suffices; a petition may be presented by any person on the victim's behalf, so the victim need not come; and it extends to negligence in the PREVENTION of a violation by a public servant, so the State's inaction while another causes the harm is within jurisdiction.

3. What may the Commission do at the end of an inquiry, and what can it not do? Under section 18 it may recommend to the Government or authority the payment of compensation or damages, the initiation of prosecution or other suitable action, and further action as it thinks fit; it may recommend immediate interim relief at any stage; and it may approach the Supreme Court or the High Court for directions, orders or writs. It cannot make any binding order of its own.

4. What is the special procedure for complaints against the armed forces? Section 19: the Commission may only seek a report from the Central Government, and after receiving it may either not proceed or make recommendations. The Government must report the action taken within three months, and the Commission publishes its report, its recommendations and the action taken, and gives a copy to the petitioner. There is no inquiry with civil court powers.

5. Why does the one-year limitation in section 36(2) matter particularly in the affected districts? Because the conditions that produce the violation, distance, illiteracy, fear of the local administration and the absence of any lawyer, are the same conditions that delay a complaint, so the bar falls hardest on the complainants the Act exists for.