The Protection of Human Rights Act 1993: Why It Was Passed
Chapter Seventy
Syllabus topic 3, "Enforcement of Human Rights"
Pages 322 to 325 of 660
In one line
The Protection of Human Rights Act, 1993, which is how the statute styles itself, was enacted to constitute a National Human Rights Commission, State Commissions and Human Rights Courts, and it is the legislature's answer to the problem Module II ends on: rights declared by courts and not delivered by administrations.
The circumstances
Four, and they should be given because the Act's shape follows from them.
Domestic criticism of the human rights record, particularly in relation to custodial deaths, disappearances and the conduct of security forces in disturbed areas.
International pressure and scrutiny, including in the United Nations bodies, at a time when India was seeking to answer criticism rather than to concede it.
The Paris Principles. The General Assembly had endorsed principles relating to the status of national institutions, requiring a broad mandate defined in a constitution or legislation, independence guaranteed by statute, pluralist composition, adequate resources and adequate powers of investigation. The Act is drafted with those principles in view, and the accreditation of the Indian Commission has turned on them.
And the judicial development described in Module II, which had declared a large body of rights and demonstrated that a court could not deliver them.
The route it took
It began as an ordinance and was replaced by the Act, which received assent in 1993 and was brought into force with retrospective effect from the date of the ordinance. Section 1 carries that history: the short title, the extent to the whole of India, and the deemed commencement from the date the ordinance was promulgated.
That route matters for two reasons. It shows the pressure was immediate, since an ordinance is used where a legislature is not sitting and the matter cannot wait. And it is the ground of the standing criticism that the Act was a response to criticism rather than a considered scheme.
What the Act does, in outline
| Chapter | Sections | Content |
|---|---|---|
| I | 1 to 2 | Preliminary and definitions, including the section 2(1)(d) definition of human rights |
| II | 3 to 11 | The National Commission: constitution, appointment, removal, term, staff |
| III | 12 to 16 | Functions and powers relating to inquiries |
| IV | 17 to 20 | Procedure: inquiry into complaints, steps after inquiry, the armed forces provision, reports |
| V | 21 to 29 | State Commissions |
| VI | 30 to 31 | Human Rights Courts and the Special Public Prosecutor |
| VII | 32 to 35 | Grants, accounts and audit |
| VIII | 36 to 43 | Miscellaneous, including the one year bar, special investigation teams and rule-making |
Forty-three sections, and the Act was substantially amended in 2006 and again by Act 19 of 2019.
What it does not do
Three omissions, and they are the source of most of the criticism.
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