The Protection of Human Rights Act:

India is the largest democracy in the world. Being a democratic country, one of the main
objectives of one is to defend and uphold the rights of its citizens. To effect the protection of
such rights, the Constitution has included within its ambit, the provision of Fundamental
Rights, thereby giving due recognition to human rights.

The conception of ‘human rights’ emerged from 5th Century BCE, with the inception of
Cyrus Cylinder, which is often considered as the first declaration of human rights. Political
thinkers like Socrates, Plato and Cicero discussed the concept of natural law and justice, thus
laying the early foundations of human rights.

As an aftermath to the Second World War, which resulted in many lives being lost, the
Universal Declaration of Human Rights was adopted in 1948. However, the problems of
human rights abuse following the second world war persisted as the UN did not have a
mechanism for legally enforcing the declaration.

The United Nations resorted to adopting two new covenants to solve this issue:

1) The Covenant on Civil and Political Rights, and

2) The Covenant on Economic, Social and Cultural Rights.

Following the adoption of these covenants, many countries, including India, became a
signatory and ratified them as well. Thereafter, these signatories became legally bound by
these covenants.

India, in particular, came under the spotlight and heavy criticism from the western countries
following a series of human rights violations, mainly in Jammu and Kashmir. Following
pressure from the western world, and considering national demand for the protection of
human rights as well, The Human Rights Commission Bill was first introduced in the Lok
Sabha in May 1992.

Protection of life, liberty and dignity of an individual is an important objective of the

Constitution. For the fulfilment of this objective, provisions concerning the Fundamental
Rights were made in the Constitution. Additionally, Part IV to the Constitution also lays a
framework for the areas in which the government must make laws. The Protection of Human
Rights Act, 1994 was enacted to further the objectives as enshrined in the Constitution.

The Protection of Human Rights Act, 1993 consists of 43 Sections, organized into 8 chapters.
Under Section 2(d) of the Act the word human rights is defined as: “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”.

The Protection of Human Rights Act, 1993 was enacted to provide for the constitution of:

o National Human Rights Commission (NHRC),

o State Human Rights Commission (SHRC) and

o Human Rights Courts for the protection of human rights.

National Human Rights Commission (Chapter 2,3,4)

It is a watchdog of human rights in the country, i.e. the rights related to life, liberty, equality
and dignity of the individual guaranteed by the Indian Constitution or embodied in the
international covenants and enforceable by courts in India.

Establishment:

o Established on 12th October, 1993, under the Protection of Human Rights Act (PHRA),
1993. It was amended by the Protection of Human Rights (Amendment) Act,
2006 and Human Rights (Amendment) Act, 2019.

o It was established in conformity with the Paris Principles, adopted for the promotion and
protection of human rights in Paris (October, 1991) and endorsed by the General
Assembly of the United Nations in December, 1993.

Composition:

According to section 3 of the Act, the National Human Rights Commission shall consist of the
following persons,

1. A chairperson, who has been the Chief Justice of India, or a Judge of the Supreme Court.

2. One member, who is, or formerly was a judge of the Supreme Court.

3. One member, who is, or formerly was a judge of a High Court.

4. Three members, of whom, one shall be a woman, and they shall be selected on the basis
of their knowledge, or practical experience, in the field of human rights.

5. Chairpersons of the National Commission for Backward Classes, the National

Commission for Minorities, the National Commission for Protection of Child Rights, the
National Commission for the Scheduled Castes, the National Commission for the
Scheduled Tribes, the National Commission for Women, the Chief Commissioner for
Persons with Disabilities will also be deemed to be members of this Commission.

The Act has also provided that the headquarters of the Commission shall be in Delhi, and the
Commission, with the prior approval and consent of the Central Government, may establish
offices in other states as required.
Appointment (Sec 4)

Section 4 enumerates the appointment of the chairperson and other members. This section
provides for a selection committee, which shall recommend candidates to the President. The
committee shall consist of the following persons:

1. The Prime Minister, who shall be the chairman of the above mentioned selection
committee.

2. Speaker of the Lok Sabha

3. Minister in-charge of the Ministry of Home Affairs in the Government of India.

4. Leader of the Opposition in both the Rajya Sabha, and the Lok Sabha.

5. Deputy Chairman of the Rajya Sabha.

This section has also provided that no sitting Judge, or the Chief Justice of the Supreme
Court can be appointed without the prior approval of the Chief Justice of India.

Tenure (Sec 6)

According to this section, the chairperson, or any other member shall hold office for a term
not exceeding three years from the date on which he took office, or until they attain the age
of 70, whichever is earlier. However, they shall be eligible for re-appointment.

Procedure for removal of the Chairperson or any other Member

Section 5 of the Act contains provisions regarding the resignation or removal of the
chairpersons or the members of the commission. According to the Act, the chairperson, or
any other member, may resign by notice in writing to the President of India.

Sub-section (2) provides that the chairperson or any other member shall only be removed
on ground of proved misbehaviour or incapacity. However, such a matter is to be reported to
the Supreme Court, and it shall inquire into the matter and provide a detailed report on the
same. Only on the basis of that report can such removal be effected.

Furthermore, the Act has enshrined the President to effect the removal of the chairperson
or any other member, who:

1. Is adjudged insolvent.

2. Engages in any sort of paid employment outside the duties of his office.

3. Is unfit to continue discharging his duties by way of infirmity of mind, or of body.

4. Has been declared by a competent Court to be of unsound mind

5. Is convicted and sentenced to imprisonment for an offence, which in the opinion of the
President, involves moral turpitude.
Power and Functions:

As per section 12 of the act the power and function of the commission are:

o To inquire into any violation of human rights or negligence in the prevention of such
violation by a public servant, either suo motu or on a petition presented to it or on an
order of a court.

o To intervene in any proceeding involving an allegation of violation of human

rights pending before a court.

o To visit jails and detention places to study the living conditions of inmates and make
recommendations thereon.

o To review the constitutional and other legal safeguards for the protection of human
rights and recommend measures for their effective implementation.

o To review the factors including acts of terrorism that inhibit the enjoyment of human
rights and recommend remedial measures.

o To study treaties and other international instruments on human rights and make
recommendations for their effective implementation.

o To undertake and promote research in the field of human rights.

o To spread human rights literacy among the people and promote awareness of the
safeguards available for the protection of these rights.

o To encourage the efforts of nongovernmental organisations (NGOs) working in the field

of human rights.

o To undertake such other functions as it may consider necessary for the promotion of
human rights.

Beenu Rawat v. Union of India (2013)

In this case, the members of the Aam Aadmi Party, while protesting against the non-
registration of FIR in of rape case, were lathi-charged by the police, which resulted in injuries
to the protesters.

The Supreme Court transferred this case to the National Human Rights Commission and in
view of Section 12(a) of the Protection of Human Rights Act of 1993, the commission was
asked to investigate the alleged violation of the fundamental right to life and dignity of the
protesters. The court further clarified that the definition of "human rights" is broad enough
to include rights relating to life, liberty, equality, and dignity of the individual guaranteed by
the Constitution.
The State Human Rights Commission (Chapter 5)

Chapter V (Sections 21 - 29) deals with the composition, constitution and the functioning of
the State Human Rights Commission. Section 21 gives power to the State Government to
establish a body known as the Human Rights Commission for that state.

Composition of the SHRC

According to Section 21, the State Human Rights Commission shall consist of the following
members:

1. A chairperson, who must have been the Chief Justice or a Judge of a High Court.

2. A member who is, or has been the Judge of a High Court,

3. A member who possesses knowledge or has practical experience in the field of human
rights.

Section 21(3) provides that there shall be a secretary, who in turn, shall be the Chief
Executive Officer of the Human Rights Commission and shall exercise all administrative and
financial functions therein.

Appointment (sec 22):

The Governor of the state shall appoint the chairperson and the two other members of the
Commission. However, such an appointment shall only be made on the recommendation of
a committee consisting of the following members:

1. The Chief Minister, who shall be the chairperson of the selection committee.

2. Speaker of the Legislative Assembly

3. Minister in-charge of the Department of Home in that particular state.

4. Opposition leader of the Legislative Assembly.

Tenure:

The chairperson and members hold office for a term of three years or until they attain the
age of 70 years, whichever comes first.

Removal:

Although the chairperson and members of a State Human Rights Commission are appointed
by the governor they can only be removed by the President.

In Bihar State Electricity Board v. Bihar State Human Rights Commission (2012), the Patna
HC observed that the State Human Rights Commission has the same functions and powers
within the jurisdiction of the State as the National Commission has under
Section 12 of the Act.
Part IV of the Act: Human Rights Courts

Chapter VI of the Act, comprising Sections 30 and 31, makes the provisions relating to the
creation of Human Rights Courts in each district.

Section 30 of the Act authorizes the State Governments, with the consent of the Chief
Justice of the High Court, to establish Human Rights Courts by Notification, specifying for
each District a Court of Sessions to be a Human Rights Court.

In line with Section 31 of the Act, the State Government shall appoint a public prosecutor or
an advocate who has been in practice as an advocate for at least seven years for the purpose
of conducting matters in the Human Rights Courts. Such a person would be known as a
"Special Public Prosecutor." It is, however, to be noted that it is not mandatory for the States
to create Human Rights Courts in each and every district, as Section 30 of the Act expressly
uses the expression "the State Government may set up the Courts." However, in order to
provide a speedy trial of offenses arising out of violations of human rights, it is desirable that
states, particularly those where human rights violations take place in large numbers, should
establish such courts.

Case Laws:

Case One: Gujarat Riots

In this case, the National Human Rights Commission took suo-moto cognizance in response
to media reports about the finding of a mass grave in Lunawada village, Panchmahal District,
Gujarat. The Commission asked for a report on the matter from the State Government and
the CBI.

In Gujarat, communal violence on a large scale was recorded in February and March 2002.
Approximately three thousand members of the minority Muslim community were
massacred, and the property was destroyed.

The Gujarat state government and police failed to take the necessary measures to avoid
violence and failed to provide protection, security, and justice to Muslim minority
community victims. The NHRC initiated a suo-moto inquiry into these incidents and
instructed the state administration to report on the steps taken to restore calm in Gujarat.
The Commission also petitioned the Supreme Court of India on behalf of the
Gujarat riot victims.
Case two: Punjab mass cremations

The Supreme Court referred this case of gross violation of human rights to the NHRC. The
Commission found that the bodies of these people were burned by state authorities in
contempt of cremation procedures for unidentified bodies. The Commission held that the
act violated the dignity of the dead and harmed the emotions and sentiments of their kin,
who would have wanted to perform their last rites. Therefore, the Commission held the
State of Punjab accountable and responsible for the infringement of the right to life.
Accordingly, the Punjab government was directed by the NHRC to deposit Rs. 18,39,25,000/-
within three months for distribution to the next of kin.

Besides this, the National Human Rights Commission also awarded compensation of Rs 1.75
lakh to the next of kin of the 1051 victims of this case of mass cremation in the
state of Punjab.

Case 3: Starvation deaths in Orissa

The NHRC investigated complaints of starvation deaths in the Koraput, Bolangie, and
Kalahandi Orissa districts.

On December 23, 1996, the Indian Council of Legal Aid and Advice and others filed a writ
petition with the Supreme Court of India under Article 32 of the Constitution. On July 26,
1997, the Supreme Court of India concluded that the petitioner could approach the NHRC
since this case is pending with them and they are likely to make a ruling. Recognizing the
urgency of the situation, the Commission moved quickly to develop an interim measure for a
two-year term and suggested that the Orissa State Government form a committee to review
all land concerns. They dispatched a team to provide an update on the current situation and
also appointed a special rapporteur to examine relief and rehabilitation activities.

In January 2004, the Commission held a conference with recognized specialists on the
subject to discuss issues concerning the right to food. The Commission has authorized the
establishment of a Core Group on the Right to Food, which will provide advice on issues
raised and recommend suitable programs for the Commission to implement. In the context
of India, this decision clearly confirms that economic, social, and cultural rights are
recognized by the courts and the Commission in the same way as they recognize civil and
political rights.