Unit 4: Use of National Human Rights Institutions

UNIT 4: USE OF NATIONAL HUMAN RIGHTS INSTITUTIONS

4.1 Objectives
4.2 Introduction: National Human Rights Institutions
4.3 National Human Rights Institutions in India
4.4 National Human Rights Commission of India
4.5 National Commission for Women
4.6 National Commissions for Scheduled Castes and Scheduled Tribes
4.7 National Commission for Minorities
4.8 National Human Rights Institutions in Practice: Case Study Critiques of
NHRC
4.9 Summary
4.10 Questions for Content
4.11 Questions for Discussion
4.12 Suggested Further Reading Additional to Cited Sources

4.1 OBJECTIVES

• Understand the concept of National Human Rights Institutions (NHRIs)

• Understand the structures of key human rights institutions in India
• Understand how these institutions can promote human rights
• Understand the limitations of NHRIs

4.2 INTRODUCTION: NATIONAL HUMAN RIGHTS INSTITUTIONS

The previous module discussed the use of international human rights mechanisms for the
promotion and protection of human rights. This module turns to another set of formal
mechanisms individuals can potentially use as part of a broader advocacy strategy,
namely, national human rights institutions.

National human rights institutions (NHRIs) are intended to be independent organisations

established by domestic legislation for the purposes of promoting and protecting human
rights.1 As this module will demonstrate, these institutions do not always live up to their
potential as independent human rights protectors. However, they can provide alternate
forums for human rights advocacy and serve as additional avenues through which to put
pressure on the government regarding its human rights record.

Although NHRIs can encompass a broad range of organisations, in 1993, the United
Nations General Assembly adopted the so-called Paris Principles to provide guidance

1
See South Asia Human Rights Documentation Center (SAHRDC), INTRODUCING HUMAN RIGHTS: AN
OVERVIEW INCLUDING ISSUES OF GENDER JUSTICE, ENVIRONMENTAL, AND CONSUMER LAW, 135 (Oxford
University Press, 2006).

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with regard to the establishment and operation of NHRIs.2 According to these principles,
some of the main responsibilities of NHRIs include:3

¾ Submitting reports, opinions, and recommendations related to human rights

¾ Encouraging the ratification of international human rights instruments and
ensuring national legislation and practice complies with obligations under such
instruments
¾ Assisting the government in submitting reports to regional and international
instruments, such as the current United Nations Human Rights Council and
existing treaty bodies
¾ Cooperating with the United Nations and other human rights institutions
¾ Promoting education, research, and public awareness on human rights issues
¾ Potentially undertaking a quasi-judicial function in considering individual
complaints, seeking settlements of such, and/or making recommendations to
appropriate authorities

Also, according to the Paris Principles, NHRIs should have a diverse membership,
including representatives of NGOs, unions, associations of lawyers and other
professionals, universities, legislators, government representatives potentially in an
advisory capacity, and other civil society organisations.4 Moreover, NHRIs differ from
NGOs in that they should be established by domestic legislation or the Constitution of a
particular country. All in all, NHRIs are intended to serve as an institutionalized,
independent and pluralistic mechanism for promoting and protecting human rights.

This module will focus on NHRIs in India. After providing a brief introduction to those
institutions, the module will turn to the procedures and mechanisms at work in several of
the important institutions.

4.3 NATIONAL HUMAN RIGHTS INSTITUTIONS IN INDIA

India has long had organisations that would be considered national human rights
institutions under the Paris Principles. For example, the government established the
National Commission for Minorities in 1978, the National Commission for Women in
1990, and the National Commission for Scheduled Castes and Scheduled Tribes and the
National Commission for Safai Karmacharis in 1993. Still, in part due to international
pressure, India established the National Human Rights Commission in 1993 to serve as a
national human rights institution dedicated principally to human rights. The Indian
Government has continued to establish additional human rights institutions, such as the
National Commission for Protection of Child Rights in 2007.5

2
National institutions for the promotion and protection of human rights (popularly known as the “Paris
Principles’), United Nations General Assembly, A/RES/48/134, Annex, 20 Dec. 1993, Available at:
http://www.un.org/documents/ga/res/48/a48r134.htm.
3
Id.
4
Id.
5
National Commission for Protection of Child Rights (NCPCR), Available at:
http://ncpcr.gov.in/index.htm.

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All in all, the national human rights institutions in India provide an additional mechanism
for individuals or organizations to use for promoting and protecting human rights in the
criminal justice context or otherwise. While they have served an important function,
similar to the international human rights mechanisms discussed in the previous module,
national human rights institutions have received much criticism with regard to such
problems as operational ineffectiveness, a lack of effective authority or remedial powers,
and biased political influence in carrying out their mandates. The following sections will
discuss several of the current National Human Rights Institutions in India, outlining their
structure, function, and implementation mechanisms and discussing the limitations of
each institution, before turning to two critiques of the National Human Rights
Commission, presented in case study form. Although this module could include
descriptions of potentially over one hundred more National Human Rights Institutions, it
will only focus on a few such organisations in order to simply highlight some of the most
important NHRIs in India, while also providing a representative pattern of the operation
of such institutions.

4.4 NATIONAL HUMAN RIGHTS COMMISSION OF INDIA6 (NHRC)

The National Human Rights Commission (NHRC), established by the Protection of

Human Rights Act, 1993, operates as a major National Human Rights Institution in
India.7 While intended to serve as an independent protector of human rights, the
composition of the Commission itself and the methods of appointment demonstrate the
potential lack of independence of the body. Specifically, the Commission is mandated to
consist of a variety of judicial experts, including a former Chief Justice of the Supreme
Court, another Supreme Court Judge, a Chief Justice of a High Court, and two other
human rights experts.8 In addition, the President of India herself/himself appoints these
members to five year terms,9 after consultation with a committee comprised of the
highest officers of the Indian Government, including the Prime Minister, Speaker of Lok
Sabha, Home Affairs Minister, Lok Sabha Opposition Leader, Rajya Sabha Opposition
Leader, and Rajya Sabha Deputy Chairman.10

Several State Human Rights Commissions have also been set up to carry out the object
and purpose of the NHRC to promote and protect human rights by making mechanisms

6
This sub-section on the National Human Rights Commission will be the longest of the following sub-
sections on particular national human rights institutions. This arguably disproportionate amount of
information is not intended to denote a greater importance to the NHRC over the other institutions, but
simply reflects the fact that many of the structures, functions, and limitations follow a similar form to that
of the NHRC.
7
The Protection of Human Rights Act, 1993 (As Amended by the Protection of Human Rights
(Amendment) Act, 2006), No. 10 of 1994, 8 Jan. 1994, No. 43 of 2006, Available at:
http://nhrc.nic.in/Publications/HRActEng.pdf.
8
Id., at Ch. II.3.
9
Commission Members can be re-appointed to a second five year term only, and can not serve past the age
of 70 years. Id., at II.6.
10
Id., at II.4.

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more easily accessible to victims of human rights violations.11 Currently, the following
17 state human rights commissions operate:12

ANDHRA PRADESH ASSAM HIMACHAL PRADESH

JAMMU & KASHMIR KERALA KARNATAKA
MADHYA PRADESH MAHARASHTRA MANIPUR
ORISSA PUNJAB RAJASTHAN
TAMIL NADU UTTAR PRADESH WEST BENGAL
CHHATTISGARH GUJARAT

State Human Rights Commissions cannot hear cases pending before the National Human
Rights Commission,13 and vice versa,14 although the National Human Rights Commission
can refer a case to the appropriate State Human Rights Commission.15

Functions

The Protection of Human Rights Act, 1993, provided the NHRC with the authority to
undertake activities directly in line with the Paris Principles described above. For
instance, the Act calls upon the NHRC to investigate individual complaints; intervene in
judicial proceedings involving human rights violations; observe detention facilities;
encourage the government to implement human rights protections under the law,
Constitution, and international human rights instruments; research, educate, and raise
public awareness related to human rights; collaborate with other organisations promoting
human rights; and undertake other related human rights promotion activities.16

As a significant component of the NHRC’s mandate, the Commission can consider

individual instances of human rights violations or the negligent failure to prevent such
violations by a public servant.17 The Commission can either initiate inquiries into abuses
on its own initiative (suo motu) or receive complaints from victims of human rights
violations.18 The former allows the NHRC to investigate human rights violations against
marginalized communities who may not have the necessary resources to pursue justice on
their own,19 while the latter allows individuals to have a forum within which to seek
justice. An example of a suo motu inquiry, in June 2009, the NHRC undertook a case on
its own to investigate media reports of the asphyxiation deaths of two workers cleaning
sewers in Delhi.20

11
See Id., at V.
12
This exact chart can be found at: http://nhrc.nic.in/shrc.htm.
13
The Protection of Human Rights Act, supra note 7, at V.21.
14
Id., at VIII.36.
15
Id., at III.13(6).
16
Id., at III.12.
17
Id., at III.12(a).
18
Id.
19
See SAHRDC, INTRODUCING HUMAN RIGHTS, supra note 1, at 139.
20
“NHRC takes suo motu cognizance of media reports on the death of two workers cleaning sewer in
Delhi,” National Human Rights Commission, 9 June 2009, Available at:
http://nhrc.nic.in/dispArchive.asp?fno=1760.

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Through this complaint mechanism, the NHRC has the authority to act in a quasi-judicial
capacity to investigate such complaints and make recommendations to the appropriate
government authority to pay compensation, initiate criminal proceedings, and/or take
other appropriate action.21 The NHRC may also approach the Supreme Court or requisite
High Court, or seek immediate interim relief from the requisite government or authority;
the relevant authority has to respond within one month of the submission of
recommendations by the NHRC as to the steps taken or proposed to be taken.22

In exercising this quasi-judicial authority, the NHRC has powers of summoning

witnesses, discovery, receiving evidence, etc. equivalent to a civil court under the Code
of Civil Procedure, 1908.23 For example, in August 2009, the NHRC summoned the
Chief Secretary of Uttar Pradesh to appear before the Commission.24 State governments
have further authority under the Protection of Human Rights Act to establish actual
Human Rights Courts at a district level to try human rights offences,25 although such
authority is often not carried out in practice.26

In addition to operating its own complaints mechanism, as described above, the NHRC
can also intervene in pending judicial proceedings that involve human rights violations,
provided that the requisite court grants the NHRC permission to do so. For example, the
NHRC filed a petition in the Supreme Court in the so-called ‘Best Bakery’ case, arguing
that the Court should set aside the acquittals of a Gujarat trial court because of threats and
intimidation of potential witnesses in the case.27

Finally, as already mentioned, the NHRC has the task of encouraging and ensuring
government implementation of human rights protections under legislation, the
Constitution, and international human rights instruments, as well as the responsibility of
undertaking and promoting research and education concerning human rights.28 The
NHRC has become involved in human rights issues that span the spectrum of civil and
political rights as well as economic, social, and cultural rights, covering a wide range of

21
The Protection of Human Rights Act, supra note 7, at III.18.
22
Id.
23
Id., at II.13.
24
“NHRC summons Chief Secretary, Uttar Pradesh and four other senior officers for personal appearance
in the Commission on removal of illegal abattoir and furnaces in Meerut,” National Human Rights
Commission, 11 Aug. 2009, Available at: http://nhrc.nic.in/dispArchive.asp?fno=1811.
25
Id., at VI.30.
26
See, e.g., Tarun Nangia, “‘City needs human rights court of session,’” Express India, 20 March 2009,
Available at: http://www.expressindia.com/latest-news/city-needs-human-rights-court-of-session/436837/.
27
“SC to hear petition filed by Zaheera, NHRC,” Rediff News, 1 Sept. 2003, Available at:
http://election.rediff.com/news/2003/sep/01guj.htm.
28
As an example related to criminal justice of the research, education, and advocacy undertaken by the
NHRC, in 2007 the Commission published: Human Rights Best Practices Relating to Criminal Justice in a
Nutshell, National Human Rights Commission, 2007, Available at:
http://nhrc.nic.in/Publications/CriminalJustice.pdf.

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issues from terrorism to sexual harassment; from custodial deaths to food scarcity; from
the protection of minorities and scheduled castes and tribes to primary health care.29

How to File a Complaint

According to the NHRC itself, any victim or victim’s representative can file a complaint,
preferably in the format provided by the NHRC.30 The complainant can write the
complaint in English, Hindi, or other languages included in the eighth schedule of the
Constitution, and can send the complaint by mail, fax, or email. The complainant should
provide basic bio-data information about her/himself and the victim (if different from the
complainant), as well as information about the human rights violation, other jurisdictions
in which a complaint has been filed, and the relief sought.31

Limitations

Although the NHRC has served an important function, particularly where investigating
individual complaints, intervening in specific cases, and drawing more attention to
human rights violations across the country, several impediments limit the ability of the
NHRC to effectively protect human rights. The main limitation of the NHRC is the
restriction on its authority to only conduct inquiries and make recommendations, rather
than having any binding power to implement remedies for human rights violations. As
such, given that the NHRC has only investigatory and recommendation powers, it has no
ability to effectively ensure the implementation of its recommendations; indeed, in
practice, the government has failed to take action in line with the NHRC’s
recommendations.32 In addition, critics contend that the NHRC lacks political
independence. As described above, the structure for appointing the membership of the
Commission itself poses a great threat to the NHRC’s independence because the highest
levels of political leadership make the appointments.33 In practice, critics contend that in
fact the NHRC’s independence is compromised and that it does not use the limited
powers that it does have to effectively protect and promote human rights.34

Question for discussion:

True or False: An applicant can access the State and the National Human Rights
Commission simultaneously.

29
See National Human Rights Commission Frequently Asked Questions, Available at:
http://nhrc.nic.in/FAQ.htm#no13.
30
For an example of a complaint format, and the listing of “Guidelines on how to file a complaint with the
NHRC,” see http://nhrc.nic.in/Documents/Compformat.pdf.
31
Id.
32
See SAHRDC, INTRODUCING HUMAN RIGHTS, supra note 1, at 142.
33
See. The Protection of Human Rights Act, supra note 7, at II.4.
34
For a recent example of critics’ contention of close ties of NHRC with the government, see, e.g., “NHRC
faces criticism over Batla House inquiry,” The Indian Herald, 4 Aug. 2009, Available at:
http://www.theindianherald.com/2009/08/nhrc-faces-criticism-over-batla-house.html (questioning whether
“the NHRC has become [the] Police Protection Commission (PPC)?” due to the NHRC’s lack of criticism
of the Delhi police regarding the “infamous Batla House encounters’ case.”).

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4.5 NATIONAL COMMISSION FOR WOMEN (NCW)

The National Commission for Women (NCW), established by the National Commission
for Women Act, 1990, serves as another important National Human Rights Institution
focusing in particular on protecting and promoting the rights of women.35 The central
government nominates a Chairperson, five additional Members, and a Member-Secretary
to comprise the Commission and serve for a period set by the government and not
exceeding three years.36 These members should “have had experience in law or
legislation, trade unionism, management of an industry or organisation committed to
increasing the employment potential of women, women’s voluntary organisations
(including women’s activities), administration, economic development, health, education,
or social welfare.”37

Functions

Like the NHRC, the NCW has powers in line with those articulated in the Paris Principles
for national human rights institutions, namely, to consider cases on a quasi-judicial basis,
to ensure the implementation of protections under the Constitution and other laws, and to
conduct research and promote education related to women’s rights.38

Like the NHRC, a main function of the NCW is to investigate and make
recommendations regarding cases in which women’s rights are violated. According to its
founding legislation, the NCW can receive complaints from victims of violations of
women’s rights, or take up cases suo motu;39 it has investigating powers equivalent to
those of a civil court40 and can bring cases involving women’s rights violations to the
appropriate authorities.41 In practice, the NCW receives complaints involving “domestic
violence, harassment, dowry, torture, desertion, bigamy, rape, refusal to register FIRs,
cruelty by husbands, deprivation, gender discrimination and sexual harassment.”42 The
NCW generally forwards cases to the police and state authorities to expedite the
investigative process and subsequently monitors the steps taken.43 The NCW also serves
as an “Inquiry Committee” in serious cases to investigate, make recommendations to the
relevant authorities, and monitor the implementation of the recommendations.44

35
The National Commission for Women Act, 1990, No. 20 of 1990, Available at:
http://wcd.nic.in/ncwact.pdf.
36
Id., at II.2.
37
Id.
38
Id., at III.10.
39
Id., at III.10(1)(f).
40
Id., at III.10(4)
41
Id., at III.10(1(e).
42
“Complaints Registration System: Instructions,” National Commission for Women, Available at:
http://ncw.nic.in/OnlineComplaints/frmHome.aspx.
43
Id.
44
Id.

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In addition, the NCW has created an alternate system for providing justice to women who
have suffered violations, called the Parivarik Mahila Lok Adalats (PMLAs).45 Following
the model of the Lok Adalat (“People’s Court”),46 whose decisions have legal validity
under the Legal Service Authority Act, 1987, the PMLAs provide a purportedly informal
and efficient way for women to seek justice47 by hearing all parties to a dispute and
coming up with a compromise solution acceptable to the parties.48 The NCW funds
NGOs, State Women Commissions, or State Legal Service Authorities to organise
PMLAs to resolve disputes in this manner.49

Apart from pursuing efforts regarding individual cases, as mentioned above, the NCW
aims to undertake research, education, and advocacy on a variety of issues pertaining to
women’s rights, such as the displacement of women, the detention of women, sexual
harassment, and the political empowerment of women.50 Through legal awareness
programmes, seminars, workshops, conferences, public hearings, special studies, and
publications, the NCW has the goal of raising awareness and pressure for the protection
and promotion of women’s rights.51

How to File a Complaint

A victim or representative can file an oral, written, or online complaint with the NWC
pertaining to the crimes listed above. Based on the NCW’s online form, a complainant
should provide contact information for the complainant and victim, the name of the

45
“Parivarik Mahila Lok Adalat (PMLA): An Alternative Justice Delivery System,” National Commission
for Women, Available at: http://ncw.nic.in/frmRes_PMLA.aspx.
46
Lok Adalats are an alternative, less formal system of dispute resolution throughout India whose decisions
have legal validity and are thus binding on parties. See, e.g., Karthyaeni. V and Vidhi Bhatt, “Lok Adalats
and Permanent Lok Adalats: A Scope for Judicial Review?,” Legal Service India, Available at:
http://www.legalserviceindia.com/articles/lok_a.htm . Lok Adalats do not have court fees and follow less
rigid procedures to make processes more accessible to more people and to help resolve cases more
efficiently than the traditional court system. Id. Under the Lok Adalat system, an agreement must be
reached by all parties through a non-adversarial system of compromise that allows for greater dialogue
amongst parties. Id. Specialised forms of alternative dispute resolution have also developed in India, such
as Nari Adalats (Women’s Courts) where issues of domestic violence and other forms of gender abuse can
sometimes be resolved through a less formal, local, alternative system. See, e.g, Sushma Iyengar, A Study of
Nari Adalats (Women’s Courts) and Caste Panchayats in Gujarat, United Nations Development
Programme (UNDP) Towards Inclusive Governance, 2007, Available at:
http://regionalcentrebangkok.undp.or.th/practices/governance/a2j/docs/CaseStudy-05-India-NariAdalat.pdf.
47
“Parivarik Mahila Lok Adalats,” National Commission for Women, Available at:
http://ncw.nic.in/PDFFiles/Parivarik_Mahila_Lok_Adalats.pdf.
48
For a description of the procedures used by Lok Adalats, see Anurag K. Agarwal, Role of Alternative
Dispute Resolution Methods in Development of Society: ‘Lok Adalat’ in India, Indian Institute of
Management, W.P. No.2005-11-01, Nov 2005, Available at:
http://www.iimahd.ernet.in/publications/data/2005-11-01anurag.pdf.
49
“Parivarik Mahila Lok Adalat (PMLA): An Alternative Justice Delivery System,” supra note 45.
50
“Important Issues Taken up by NCW,” National Commission for Women, Available at:
http://ncw.nic.in/frmRes_Imp_issues.aspx.
51
Id.

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accused, the nature of the complaint, and a description of the complaint in detail.52 In
2008, for example, the NCW received approximately 13,190 complaints.53

Limitations

The NCW has similar limitations to those of the NHRC. First, as discussed, the NCW is
limited to making inquiries and investigations without the authority to make binding
decisions or to ensure the effective implementation of its recommendations. In addition,
critics contend that the NCW does not take adequate steps to follow-up on its
recommendations, thus allowing the government to ignore the recommendations
enunciated without serious pressure.54 Moreover, the NCW appointments stem from the
central government, again limiting the independence of the organization.

4.6 NATIONAL COMMISSIONS FOR SCHEDULED CASTES AND

SCHEDULED TRIBES

The National Commission for Scheduled Castes (SCs) and Scheduled Tribes (STs)
established by the Constitution (Sixty-Fifth Amendment Act), 1990,55 was bifurcated by
the Constitution (Ninety-Fourth Amendment) Bill, 200256 into the National Commission
for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes
(NCST) due to the geographic and cultural differences between the two groups. These
two national commissions aimed to provide protection and promotion of the rights
initially recognized in the Constitution of the traditionally discriminated against
scheduled castes and tribes in India. Their establishment came as one in a long line of
recognitions of the deprivation and abuse facing these populations in India and the effects
that such continued hardships have both on the individuals within these populations and
the country as a whole.57

The National Commission for Scheduled Castes has a Chairperson, Vice-Chairperson,

and three other members, all of which are appointed in a manner determined by the
President.58 The government has given the Chairman the status of Union Cabinet
Minister, the Vice-Chairman the status of Union Minister of State, and the members the

52
“Complaint Registration,” National Commission for Women, Available at:
http://ncw.nic.in/OnlineComplaints/frmComplaintEntry.aspx.
53
“Statistical Overview,” National Commission for Women, Available at:
http://ncw.nic.in/frmComp_Stat_Overview.aspx.
54
See SAHRDC, INTRODUCING HUMAN RIGHTS, supra note 1, at 148.
55
Constitution (Sixty-fifth) Amendment Act, 1990, No. 31, 7 June 1990, Available at:
http://ncsc.nic.in/index3.asp?ssid=189.
56
Constitution (Ninety-Fourth Amendment) Bill, 2002, Available at:
http://indiacode.nic.in/incodis/whatsnew/Const94.htm
57
For one example of the recognition by a government constituted body as to the continued deprivation of
SCs and STs and the negative implications of such deprivation on the population and the country as a
whole, see Development Challenges in Extremist Affected Areas, Report of an Expert Group to Planning
Commission, Government of India, 1 (2008), Available at:
http://planningcommission.gov.in/reports/publications/rep_dce.pdf. (discussing the socio-economic root
causes of support for violent groups amongst SCs and STs).
58
Id., at 2(a)

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status of Secretary to the government.59 The National Commission for Scheduled Tribes
has one Chairperson and two other Members, also appointed in a manner determined by
the President.60

Functions

Like the NHRC and NCW, the NCSC and NCST have the authority to investigate
individual complaints regarding rights violations of their respective groups as well as the
responsibility to ensure Constitutional and legal protection of SCs and STs, and to issue
reports and recommendations to the President.61

With regard to investigating complaints, these Commissions again have the same
evidence gathering powers as a civil court.62 Although the enabling statute does not
mention that the Commissions can investigate cases suo motu, and only mentions inquiry
of complaints, the Commissions are also tasked more broadly “to investigate and monitor
all matters relating to” the protection of SCs and STs.63

In particular cases of criminal activities against SCs and STs, the NCSC and NCST will
liaise with the police and state administrators to inform the appropriate authorities and
monitor the proper handling of the case, from the registration of an FIR, to the
investigation, to initiation of criminal proceedings, through the criminal liability
determination stage.64

In addition to these similar powers as the other National Human Rights Institutions, the
NCSC and NCST also have the authority to participate, advise, and evaluate socio-
economic development planning for SCs and STs.65

How to File a Complaint

To file a complaint before the NCSC or the NCST, both Commissions ask complainants
to provide identification information, information about the complaint, and any
supporting documents.66

59
National Commission for Scheduled Castes, Government of India, Available at:
http://ncsc.nic.in/index2.asp?sid=160.
60
Constitution (Ninety-Fourth Amendment) Bill, 2002, at 3.
61
Constitution (Sixty-fifth) Amendment Act, 1990, at 2(5)(a,b,d,e,f); Constitution (Ninety-Fourth
Amendment) Bill, 2002, at 3.
62
Constitution (Sixty-fifth) Amendment Act, 1990, at 2(8); Constitution (Ninety-Fourth Amendment) Bill,
2002, at 3.
63
Constitution (Sixty-fifth) Amendment Act, 1990, at 2(5)(a); Constitution (Ninety-Fourth Amendment)
Bill, 2002, at 3.
64
See “Inquiry into specific complaints,” National Commission for Scheduled Tribes, Available at:
http://ncst.nic.in/index2.asp?slid=355&sublinkid=186&langid=1.
65
Constitution (Sixty-fifth) Amendment Act, 1990, at 2(5)(c); Constitution (Ninety-Fourth Amendment)
Bill, 2002, at 3. For an example of a report by the NCST on socio-economic conditions of the scheduled
tribes, see http://ncst.nic.in/writereaddata/mainlinkFile/File415.pdf.

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Limitations

Similar to the above bodies, the NCSC and NCST have only inquiry, advisory, and
recommendation powers, and the members are appointed by the central government. As
such, the influence of these Commissions remains limited. Although the enabling
legislation even granted the NCSC and NCST the authority to participate in development
planning to improve the socio-economic circumstances of SCs and STs, often the
government ignores the recommendations of the Commissions.67

Question for discussion: A Dalit landless peasant working in the fields of an

upper caste landlord has not been paid his daily wages for over a month, and his
daily wages are far below the minimum wages fixed by the state government.
To get through his personal financial crisis, he has taken a loan from a money
lender. Under such circumstances, what can the farmer do? Does he have access
to a system of redress? What legislative provisions would assist him or his
attorney in pursuing legal action?

4.7 NATIONAL COMMISSION FOR MINORITIES (NCM)

The National Commission for Minorities (NCM) was one of the earliest national human
rights institutions. Originally launched by the Ministry of Home Affairs as the Minorities
Commission, the National Commission for Minorities Act, 1992,68 established the
Commission as a statutory body and renamed it.69 The NCM has a Chairperson, Vice
Chairperson, and five members, who are all nominated by the central government, and
who all serve three-year terms. At least five of the members, including the chairperson,
must be members of minority groups themselves. The NCM Act defines a minority group
simply as a group designated as such by the central government; Muslims, Christians,
Sikhs, Parsis, and Buddhists are all included under the category.70

In addition to the NCM, several States have established minority commissions, namely,
Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Madhya Pradesh,
Maharashtra, Manipur, Rajasthan, Tamil Nadu, Uttar Pradesh, Uttarakhand, West Bengal,
and Delhi.71
66
See “Procedure for Inquiry,” National Commission for Scheduled Tribes, Available at:
http://ncst.nic.in/index2.asp?slid=355&sublinkid=186&langid=1.
67
As just one example that aims to assist the government in ensuring that protective measures actually
benefit SCs and STs rather than other citizens who have not faced the long history of discrimination and
deprivation, the government long ignored the recommendations of the NCSC and NCST to take measures
against those using false certificates to receive benefits intended for SCs and STs. Subhash Gatade,
“Phenomenon of False Caste Certificates,” Economic and Political Weekly, 22 Oct. 2005, Available at:
http://epw.in/epw/uploads/articles/1268.pdf.
68
National Commission for Minorities Act, Act XIX of 1992, 17 May 1992, Available at:
http://ncm.nic.in/ncm_act.html.
69
“Genesis of NCM,” National Commission for Minorities, Available at: http://ncm.nic.in/genesis.html.
70
See SAHRDC, INTRODUCING HUMAN RIGHTS, supra note 1, at 143.
71
“List of State Minority Commissions,” National Commission for Minorities, Available at:
http://ncm.nic.in/state_minor_commi.html.

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Functions

The NCM has many of the functions of the other national human rights institutions
discussed above, such as considering specific complaints (i.e. it has the powers of a civil
court), making recommendations with regard to the protection of the minority rights
enshrined in statute, conducting research and educational efforts on such topics as the
socio-economic and educational development of minority groups, and issuing reports
related to minority rights.72

The NCM has made a variety of recommendations relating to a broad spectrum of

minority-related issues, such as promoting minority languages, protecting refugees,
supporting riot-affected communities, fostering the greater political involvement of
minority groups, promoting livelihoods, and so forth.73 According to the enabling NCM
Act, both houses of Parliament and any concerned State Legislature should receive every
recommendation made by the NCM regarding the protection of minorities and should
respond with information regarding (i) the action taken in response to the
recommendation; and (ii) the reasons for not accepting any part of a recommendation.74

In practice, the NCM has also undertaken specific measures to promote the development
and protection of members of minority groups. For example, the NCM has undertaken
advocacy and monitoring efforts with State governments to promote the recognition of
minority status for certain groups and the provision of resources to various educational
facilities.75 The NCM has also undertaken legal advocacy efforts and pushed for
recommendations of compensation and prosecution in various cases involving killings
and other abuses affecting minorities.76

How to File a Complaint

Individuals can file complaints directly to the NCM for any violations related to minority
status, rights, or safeguards that occurred within the one year prior to filing the complaint,
as long as the issue of the complaint is not pending before another body or able to receive
an appropriate remedy through another body.77

Limitations

The limitations that affect other national human rights institutions plague the NCM as
well. The NCM does not have the ability to ensure the enforcement of its
recommendations, and its members are appointed by the central government.
72
National Commission for Minorities Act, Act XIX of 1992, supra note 66, at III.9.
73
See “NCM Recommendations,” National Commission for Minorities, Available at:
http://ncm.nic.in/ncm_recommendation.html.
74
National Commission for Minorities Act, Act XIX of 1992, supra note 66, at III.9(I).
75
“Major Initiatives of the Commission,” National Commission for Minorities, Available at:
http://ncm.nic.in/major_iniative.html.
76
See Id.
77
See http://ncm.nic.in/faq.html#q3.

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4.8 NATIONAL HUMAN RIGHTS INSTITUTIONS IN PRACTICE: CASE

STUDY CRITIQUES OF THE NHRC

The above sections outlined the basic structure and functions of a representative sample
of NHRIs operating in India. As discussed throughout, various limitations plague each of
the NHRIs, particularly with respect to the limited authority granted to the institutions to
effectuate actual remedies or policy changes, as well as their susceptibility to political
bias, manipulation, or control. This final section wishes to look more closely at the
implications of such limitations by focusing on the National Human Rights Commission.

Various commentators have offered scathing rebukes on the subject of how the NHRC
has dealt with various serious human rights violations over the years. This section will
briefly spell out two critiques pertaining to two such situations of inaction and inefficacy:
1) Abuses by the Joint Special Task Force in Tamil Nadu and Karnataka, and 2) Abuses
by the Salwa Judum in Chhattisgarh.

Joint Special Task Force in Tamil Nadu and Karnataka

People’s Watch, a human rights organisation in Tamil Nadu, has documented its
frustrations with the work of the NHRC in the face of abuses by the Joint Special Task
Force (JSTF) in Tamil Nadu and Karnataka.78 People’s Watch first criticizes the NHRC
for initially failing to undertake a case suo motu, despite numerous reports over several
years in the 1990s of serious abuses committed by the JSTF, such as “fake encounters,
disappearances, custodial rapes and deaths, torture by electric shocks, unlawful
imprisonment and willful deprivation of food and water.”79 People’s Watch further
criticises the NHRC for delays in hearing the complaints of victims and advocacy
organisations, taking until 1999 before finally sending a Special Rapporteur to
investigate.80 In addition, People’s Watch laments how the NHRC continued to avoid
taking action concerning the over one hundred people reported by the Special Rapporteur
to be illegally detained without trial under TADA (Terrorism and Disruptive Activities
(Prevention) Act). 81

After the NHRC ultimately set up a Panel of Enquiry to assess the situation, People’s
Watch observes that other problems surfaced, including further delays before the Panel
commenced proceedings and the dismissal of several cases involving egregious abuse
based solely on technicalities.82 Further, after the Panel ultimately issued a report and
recommendations, which remained confidential, People’s Watch documents how the
NHRC failed to take action based on those recommendations for years. 83 Moreover, even

78
“JSTF operation in Karnataka and Tamil Nadu: A Long Tale of Human Rights Violations and Inertia on
part of the NHRC,” People’s Watch, Available at:
http://www.pwtn.org/stfdocs/Chronology%20of%20STF%20interactions%20(HPT).doc.
79
Id.
80
Id.
81
Id.
82
Id.
83
Id.

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after additional advocacy efforts finally brought the NHRC in 2007 to order that 2 crores
80 lakhs be paid in compensation to 89 victims, much of the money remained
undisbursed a year later.84

Overall, although constant and continuous pressure ultimately spurred the NHRC to take
action, this retelling of events demonstrates the delays and inaction that characterized the
process, along with the NHRC’s inability to compel government action (evinced for
example by the delay in the payment of compensation).

Abuses by the Salwa Judum in Chhattisgarh

K Balagopal’s85 criticism of the NHRC for its biased efforts in reporting on allegations of
abuse by the Salwa Judum, a private militia group sponsored by the State to help fight
Naxalite insurgents in Chhattisgarh, serves as another example.86 The Supreme Court had
requested that the NHRC conduct an investigation and report on the situation, as the
Court had cases before it regarding Salwa Judum abuses and State complicity in the
violence. Balagopal first criticises the NHRC for composing the committee it set up to
conduct the investigation entirely with police officers, who were likely to have harboured
a tendency to support the counter-insurgency efforts of Salwa Judum.87 Balagopal next
criticises the failure of the report to even attempt to appear neutral, as it mostly served as
a harsh condemnation of Naxalites, with little attention paid to abuses by the Salwa
Judum or the complicity of local police officials; moreover, it portrayed the Salwa Judum
as entirely a ‘people’s movement’ despite numerous reports and commentaries
demonstrating state involvement.88

Further, Balagopal condemns the report for drawing the conclusion that allegations made
in the petitions before the Supreme Court were unsubstantiated without having evidence
to back up such claims, criticising the NHRC investigative team for failing to actually
investigate what happened and for drawing legal conclusions without a sound basis for
them—and, indeed, for drawing any legal conclusions at all, since such work is the
prerogative of a judicial body rather than an investigative team.89 In addition, Balagopal
assails the NHRC for refusing to submit to a request to hold a public hearing in two
particular districts where many of the worst victims of Salwa Judum had fled, a
potentially invaluable addition to the investigative process.90

84
Id.
85
As a tremendous loss to the human rights and criminal justice advocacy community, K Balagopal passed
away in October 2009. See, e.g., Ramachandra Guha, “The honest leftist,” India Together, 15 Nov. 2009,
Available at: http://www.indiatogether.org/2009/nov/rgh-leftist.htm.
86
K Balagopal, “The NHRC on Salwa Judum: A Most Friendly Inquiry,” Economic and Political Weekly,
20 Dec. 2008, Available at: http://epw.in/epw/uploads/articles/12988.pdf.
87
Id., at 10.
88
Id., at 11.
89
A public hearing essentially constitutes an open forum hearing where victims and witnesses provide
testimony in order to raise awareness, create a forum for dialogue, or in this case provide the investigators
with an understanding of the human rights abuses they had suffered.
90
K Balagopal, “The NHRC on Salwa Judum: A Most Friendly Inquiry,” Economic and Political Weekly,
20 Dec. 2008, Available at: http://epw.in/epw/uploads/articles/12988.pdf.

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Overall, then, Balagopal condemns the NHRC investigating team for writing a biased
report of “predetermined conclusions” favoring the allegedly state-sponsored militia
group, rather than neutrally investigating human rights abuses. As Balagopal contends,
“the report reads like a partisan statement of the case and not an impartial fact-finding.”91
This case study, then, lends credence to the view that the NHRC is susceptible to political
bias towards the State.

Taken together, these cases provide some insight into the limited role that advocacy
before NHRIs in India can have in fostering the protection and promotion of human
rights.92 As highlighted throughout this chapter, while NHRIs serve as an avenue for
human rights advocacy, their lack of binding power, their political bias, and their failure
to fully utilize their powers undermine their usefulness.

Question for discussion:

Looking at the factual situations in the two case studies and thinking back to the
earlier chapter on advocacy, what strategies could you use to promote and protect
human rights in those situations either through national human rights institutions or
otherwise?

4.9 SUMMARY

National Human Rights Institutions: International Standards

¾ Independent organisations set up by domestic legislation to promote and protect

human rights
¾ Functions: Submit reports/recommendations, ensure compliance with human
rights protections, promote action research and education, consider complaints

National Human Rights Commission of India

¾ Focus: Protection and promotion of human rights generally, everything from

terrorism to sexual harassment to custodial deaths to food scarcity, etc.
¾ Functions: Consider complaints, intervene in judicial proceedings, encourage
government compliance, action research and education
¾ Limitations: Lack of political independence, lack of binding authority

91
Id. at 13
92
For further case study critiques, see, e.g., SAHRDC, “India’s NHRC Fails to Use its Meagre Powers,”
Human Rights Features, HRF/174/07, Available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF174.htm;
SAHRDC, “NHRC India: Now A Government Apologist?” Human Rights Features, HRF/173/07,
Available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF173.htm; A. G. Noorani, “Kashmir and National
Human Rights Commission,” Economic and Political Weekly, 27 May 2000, Available at:
http://epw.in/epw/uploads/articles/11859.pdf; A. G. Noorani, “Audit of Human Rights,” Economic and
Political Weekly, 3 Nov. 2001, Available at: http://epw.in/epw/uploads/articles/9660.pdf; “Missing
Justice,” India Together, June 2003, Available at: http://www.indiatogether.org/2003/jun/hrt-missing.htm;

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National Commission for Women

¾ Focus: Promotion and protection of women’s rights, such as women in detention,

displacement of women, sexual harassment, political empowerment, etc.
¾ Functions: Consider complaints, support PMLAs, action research and education
¾ Limitations: Lack of political independence, lack of binding authority

National Commissions for Scheduled Castes and Scheduled Tribes

¾ Focus: NCSC focuses on rights of members of scheduled castes, while NCST

focuses on rights of members of scheduled tribes
¾ Functions: Consider complaints, participate in socio-economic development
planning
¾ Limitations: Lack of political independence, lack of binding authority

National Commission for Minorities

¾ Focus: Promotion of rights of minorities, including Muslims, Christians, Sikhs,

Parsis, Buddhists
¾ Functions: Consider complaints, make policy recommendations, action research
and education
¾ Limitations: Lack of political independence, lack of binding authority

4.10 QUESTIONS FOR CONTENT

1. What are six of the main responsibilities of a national human rights institution
according to the Paris Principles?

2. What is the name of the enabling legislation for the NHRC?

3. What are the main functions of the NHRC?

4. What are the main limitations noted for all of the NHRIs in India discussed
herein?

5. Can an individual submit a complaint to all of the NHRIs discussed herein?

6. What does suo motu mean?

Answers to Questions for Content

1. i) Submit reports/opinions/recommendations, ii) encourage ratification of

international human rights instruments and ensure government compliance with
obligations under those instruments; iii) assist the government in submitting
reports to regional and international instruments; iv) cooperate with the UN and

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other human rights institutions; v) promote education, research, awareness on

human rights; vi) consider individual complaints.

2. Protection of Human Rights Act, 1993.

3. Consider individual complaints, intervene in pending cases, ensure government

implementation of human rights protections, and conduct research and education
on human rights.

4. Lack of political independence and lack of enforcement powers for the

recommendations made.

5. Yes, each of the bodies discussed herein has an individual complaints mechanism.

6. Suo motu means ‘on its own initiative’. An institution with suo motu power can
thus initiate a case on its own, without the need for a victim, advocacy group, or
anyone else to submit a complaint.

4.11 QUESTIONS FOR DISCUSSION

1. Do you think the NHRIs discussed herein are effective in promoting and
protecting human rights? Why or why not or; in what ways are they effective and
what ways not?

2. How would you propose to reform the powers, procedures, or general functioning
of the NHRIs discussed herein to make them more effective in promoting and
protecting human rights?

3. As per some estimates, there are over one hundred different NHRIs in India. What
are the advantages or disadvantages of having so many different bodies with
specific target groups like women, SCs and STs, minorities, etc.?

4.12 SUGGESTED FURTHER READING IN ADDITION TO CITED

SOURCES

Performance & Legitimacy: National Human Rights Institutions, International Council

on Human Rights Policy, 2nd ed., 2004, Available at:
http://www.ichrp.org/files/reports/17/102_report_en.pdf.

National Human Rights Institutions: Amnesty International’s recommendations for

effective protection and promotion of human rights, Amnesty International, IOR
40/007/2001, 1 Oct. 2001, Available at: http://www.nhri.net/pdf/IOR4000701.pdf.

Human Rights Commissions: A Citizen’s Handbook, Commonwealth Human Rights

Initiative, 2006, Available at:
http://www.humanrightsinitiative.org/publications/hrc/hrc_handbook.pdf.

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Regional co-operation between national human rights institutions, 12th Annual Report of
APF, Sept 2007, Available at: http://www.asiapacificforum.net/about/annual-
meetings/12th-australia-2007/downloads/regional-cooperation-between-nhris/Chair%20-
%20Mr%20Justice%20S%20Rajendra%20Babu%20-%20India.pdf.

National Human Rights Institutions: A Handbook on the Establishment and

Strengthening of National Human Rights Institutions, United Nations, Professional
Training Series No. 4, 1995, Available at:
http://www.ohchr.org/Documents/Publications/training4en.pdf.

18