human rights protection

8/2/2019 Human Rights Protection

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powers in this regard. They include the power to issue directions, orders or writs for theenforcement of human rights. Under Article 226 of the constitution, the state high courts too haveidentical powers. Despite th e right to constitutional remedies, all fundamental rights of all personsare not enforced for various reasons; such as high court fees (besides that of a lawyer) and hugebacklog of pending cases. It should be mentioned that cases of gross violations of human rightsdo not end by mere incorporation of human rights provisions or the right to constitutionalremedies in the Constitution or by enacting laws for their enforcement. The constitutional rightscan be guaranteed only through special administrative or institutional measures. Rights can beenforced by the force of law. General training and education about the significance& humanrights to law-enforcing agencies like the police and para-military personnel, also helps inimproving human rights situation.

8.3 SPECIAL INSTITUTIONS TO PROTECT H UMAN RIGHTSDuring the last five decades, the Indian government has set up several special institutions underdifferent acts of parliament to give effect to the constitutional provisions of human rights of allpersons, including those of the disadvantaged and weaker sections of the society. Let us look atthe powers, functions and working of these institutions.8.3.1 The National Human Rights Commission (NHRC)Due to constant international criticism of human rights record in the country, specially in theterrorism or insurgency affected areas, the Indian Government established an NHRC, initially on12 October, 1993, under the Protection of the Human Rights Ordinance of 28 Septem ber, 1993.The parliament subsequently passed an Act to replace the ordinance. The NHRC has moremembers, and broader powers compared to other commissions in the field of human rights. It haseight members a chairperson (a former chief justice of India), a present or former judge of thesupreme court, a present or former chief justice of a high court, two members from amongpersons knowledgeable in the area of human rights, and the chairpersons of the NCW, NationalCommission for SCs and STs, and the NCM. Appointment of the chairperson and other members(except the last three) is made through a process of consultation encompassing even the leadersof opposition of both the Houses of Parliament. Another significant feature is that the NHRCchairperson and the first four categories of members are appointed for a period of five years.(a ) Powers a n d FunctionsNHRC has been assigned broad powers and functions.It can inquire, on its own o r on a petition presented to it by a victim o r any person o n his behalf,into complaints of :i ) Violation or abetement of human rights; orii ) Negligence, in the prevention of such violation, by a public servant.It may intervene in any proceeding involving any allegation of violation of human rightspending before a court with the approval of such court.It may visit, under intimation to a state governm ent, any jail or any othe r institution underthe control of the state government concerned, where persons are detained or lodged forpurposes of treatment, reformation or protection, to study the living conditions of theinmates and make recommendations thereon.It may review th e safe guards provided by or under the C onstitution o r any law fo r the timebeing in force for the protection of human rights and recommend measures for theireffective implementation.


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It may review the factors, including acts of terrorism that inhibit the enjoyment of humanrights and recommend appropriate remedial measures.It may study treaties and other international instruments on human rights and makerecommendations for their effective implementation.It may undertake and promote research in the field of human rights; spread human rightsliteracy among various sections of society and promote awareness of the safeguardsavailable for the protection of these rights through publications, the media, seminars andother available means.It may encourage the efforts of non-governmental organizations and institutions working inthe field of human rights. It may also undertake such other functions as it may considernecessary for the promotion of human rights.

(b) The Functioning / Role of NHRCDuring the years 1993-98, the NHRC has made great progress in effectively enforcing humanrights. It has had many accomplishments and made many significant recommendations forchanges in the laws as well as the Protection of Human Rights Act, 1993. Let us look at thembriefly.

Within a month of its inception on 1 November, 1993, the NHRC, on its own, took cognisanceof newspaper reports of the killing of as many as 43 civilians in and around Bijbehara (nearSrinagar) in Jammu and Kashmir (J&K) firing by the para-military force, the Border SecurityForce (BSF). It happened a few weeks earlier during siege of the sacred shrine of Hazratbal inSrinagar by the militants. These militants aimed at inflaming the religious passions of the people.In the resultant tension, the BSF had apparently ran berserk. After examining the findings of amagisterial inquiry by the state government and the Staff Court of Enquiry set up by the BSF,the Commission asked the government to launch prosecution against 14 BSF personnel againstwhom disciplinary proceedings had been launched. The government accepted the NHRC recom-mendations and took action against the offending personnel, including a few officers.The J&K Government paid ex-gratia compensation to each of the dependants of the 31 killed inthe firing. Compensation was ako paid to 44 injured persons. In this regard, the Commissionorganised training courses for BSF in Human Rights and Humanitarian Law with participation ofthe International Committee of the Red Cross.It was due to the constant campaigning by the NHRC against the Terrorist and DisruptiveActivities (Prevention) Act (TADA) that the government decided not to revive it when its termexpired in May 1995. It may be recalled that TADA, which was in force for ten years, was meantto deal with the insurgency situation in Punjab and J&K and was to be a temporary measure. Butunfortunately it was invoked, rather misused, by most of the states, even by those which were notaffected by terrorism. There are still hundreds of TADA cases pending in the courts and theNHRC is pursuing its campaign for their early disposal.Custodial violence and death is another area which has caught the attention of the NHRC. Thehuge increas-,in t k n1?;,,4rof cases / complaints considered by it, from 276 in 1994-95 to 11,153in 199.: , ~ , , l y howed the awareness among the people of the human rights situation in thecountry and the willingness of the victims to approach the NHRC for relief. As many as 444custodial deaths were examined by the NHRC during 1995-96, besides 39 cases of disappearanceof persons arrested by the police. Quite a few fatalities, 308, were of persons in judicial custody.Other police 'excesses' probed by the NHRC included torture of the suspects during investigationto extract confessions.


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Due to persistent goading by the NHRC, in October 1997, the government acceded to the UNConvention against Torture and other Forms of Cruel, Inhuman and Degrading Treatment ofPunishment (though it is yet to be ratified).Although the Commission has a statutory bar not to inquire into cases of incidents of violationsof human rights that occurred more than a year ago, its inquiry of mass cremations of more than2,000 bodies of persons killed by the Punjab police during 1991-93 in fake encounters is worth ._recording. When the matter was under investigation by the NHRC, the union government in fact,questioned its jurisdiction in view of the one-year time limit set by the Protection of HumanRights Act. When the commission rejected the objection, the government had got the inquirystayed to enable it to appeal to the Supreme Court. The apex court subsequently ruled that theCommission had jurisdiction not only to deal with the matter, but also added that "anycompensation awarded by the Commission (to the dependants of the victims) shall be binding andpayable".

Check Your Progress 11. List some of the major powers and functions of the NHRC.

2. Identify three major accomplishments of the NHRC.

8.3.2 The National Commission for Women (NCW)The NCW was constituted on 31 January, 1992 in pursuance of the National Commission forWomen Act, 1990. It consistsd chairperson and five other members and holds office for threeyears. It performs multifarious functions.(a) Functions of NC WIt may investigate and examine all matters relating to the safeguards provided for women mderthe Constitution and other laws. It does present to the central government, annually and at suchother times as the Commission may deem fit, reports upon'the working of these safeguards. Itmakes, in such reports, recommendations for the effective implementation of the safeguards forimproving the conditions of women by the union or any state. It reviews, from time to time, theexisting provisions of the Constitution and other laws affecting women and recommendslegislative measures to meet any lacunae, inadequacies or shortcomings in such legislations. Ittakes up the cases of violations of the provisions of the Constitution and of other laws relatingto women with the appropriatie authorities. It looks into complaints and takes notice of mattersrelating to--i) deprivation of wornell's rights;ii) non-implementation of laws enacted to provide protection to women and also to achieve theobjective of equality and development; and


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i i i ) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hard-ships 'and ensuring welfare and providing relief to women.

NCW takes up the issues arising out of such matters with appropriate authorities. It calls forspecial studies or investigations into specific problems or situations arising out of discriminationand atrocities so as to recommend strategies for their removal. It undertakes promotional andeducational research so as to suggest ways of ensuring due representation of women in all spheresand identify factors responsible for impeding their advancement, such as lack of access to housingand basic services, inadequate support services and technologies for reducing drudgery andoccupational health hazards and for increasing their productivity. It participates in and advises onthe planning process of socio-economic development of women. It evaluates the progress of thedevelopment of women under the union and any state. It inspects or gets inspected a jail, remandhome, women's institution or other places of custody, where women are kept as prisoners orotherwise, and takes up with the concerned ,authorities remedial actions, if found necessary. Itfunds litigation involving issues affecting a large body of women. It makes periodical reports tothe government on any matter pertaining to women and in particular, various difficulties underwhich women toil.

(b) First Seven Years of NCW's FunctioningDuring the first seven years' (1992-98) of its existence, the NCW has been actively striving toachieve equity, equality and justice. It has been pursuing gender justice through intervention incases of violation of equality laws, denial of opportunities and deprivation of women's rights. It .arranges counselling and assistance to women victims of atrocities and women in distress all overthe country.In order to deal with various complaints and cases that are brought to the commission from timeto time, it has established a Counselling and Pre-Litigation Cell. During the said period about3000 cases have been dealt with successfully. These complaints generally relate to casespertaining to dowry harassmend atrocity, torture/cruelty, rape, bigamy, gender discrimination,right to property, harassment at workplace, maintenance and divorce petitions.It has launched specific initiatives to amend laws inadequate to women's interests in differentareas such as dowry, rape, custody, property rights, marriage, divorce, maintenance, etc. Itorganises its endeavours through NGOs, Parivarik Mahila Lok Adalats and Legal AwarenessCampaigns. It has a special mandate to solve the problems of the girl child, prostitutes, widowsand women in custody as also to counter obscenity in the media. Transfer of technology to ruralwomen is another of its thrust areas.The NCW is also concerned with political issues relating to women. It supported the nation-widecampaign for political empowerment of women through representation in all legislative anddecision-making bodies from grassroots' level (panchayat) to the parliament. In this regard, itorganised Panchayat Level Legal Literacy and Awareness Programmes 'to educate grassrootswomen in Panchayati Raj. Also, it sponsored research studies to examine the impact of womenin panchayats and their problems.On economic issues, its activities include, among others, conducting study on employment ofwomen, employment equality and impact of economic reforms. The Commission also probes'employment opportunities for women in export-oriented industries and unorganised sectors. Itstrives to generate employment for slum women. Its concerns include assisting in organisingvocational training and starting Gramin Banks to provide credit to women to make themeconomically self-reliant. /


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8.3.3 The National Commission for Scheduled Castes (SCs) and Scheduled Tribes(STs)

Though the Constitution establishes right to equality and prohibits discrimination based on caste,race, religion, sex or birth besides outlawing the age-old practice of untouchability, the ex-untouchables/ SCs/ Dalits have not been fully integrated into the social mainstream. Their rightsare being violated every day. To bring social equality /justice, constitutional and administrativesafeguards were provided through the preferential policies commonly known as 'ReservationPolicy' (in jobs, educational places and legislatures). The parliament passed three acts with a viewto effectively enforce Article 17 of the Constitution, which abolishes untouchability. These actsare the Untouchability (Offences) Act of 1955, as amended by the Protection of Civil Rights Act,1976, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. TheseActs prescribe penalty for offences / atrocities against dalits.In 1950, a special officer designated as the Commissioner for SCs and STs was appointed underArticle 338 of the Constitution to investigate all matters relating to the safeguards provided forthese disadvantaged and weaker sections of the society. Subsequently, it was felt that, instead ofa single special officer, a high-level five-member commission would be a more effectivearrangement. Accordingly, in 1990, the National Commission for SCs and STs was constitutedfor the protection, welfare, socio-economic development and advancement of the SCs and STsand to evaluate the working of such safeguards. It is empowered to inquire into specificcomplaints of deprivation of rights of these people. It presents to the President of India annualreports upon the working of these safeguards and makes recommendations for undertakingmeasures necessary for the effective implementation of the safeguards.

Check Your Progress 21. What are the concrete measures initiated by the NCW?..................................................................................................................................................................................................................................

..................................................................................................................................................................................................................................2. List the functions of the National Commission for Scheduled Castes and Tribes...................................................................................................................

8.3.4 The National Commission For Minorities (NCM)With a view to ensuring effective enforcement of tlie implementation of constitutional provisionsrelating to minorities, a National Commission for Minorities was created in 1978, which wasgiven statutory status in 1992. According to the government notification, these minorities includethe Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). Presently, the NCM consistsof a chairperson, a vice-chairperson and five members-belonging mostly to the minoritycommunities. The chairperson and members hold office for three years. The commissionperforms, among others, the following functions:

evaluate the progress of the development of minorities under the union and states;monitor the working of the safeguards provided in the Constitution and in laws enacted by


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\the parliament and the state legislatures;make recomm endations for the effective implem entation of safeguards for the protection ofthe interests of minorities by the central government or the state governments;look into specific complaints regarding deprivation of rights and safeguards of theminorities and take up such matters with the appropriate authorities;studies to be undertaken into problem s arising out of any discrimination against minoritiesand recommend measures for their removal;conduct studies, research and analysis on the issues relating to socio-economic andeducational development of m inorities;; suggest appropriate measures in respect of any minority to be undertaken by the centralgovernment or the state government; andmake periodical or special reports to the central government on any matter pertaining tominorities and in particular, difficulties confronted by them." 8.3.5 The National Commission for Backward Classes (NCBC)

The NCBC was created under The National Commission for Backward Classes Act, 1993. Thiscomm ission was established upon the implem entation of the Mandal C omm ission recommenda-tions reserving 27% of jobs in central services to the persons belonging to other backward classes(OBCs). According to the 1993 Act, 'Backward C lasses' m eans such backward classes of citizensother than the SCs and the S Ts as may be specified by the central government in the lists drawnfrom time to time.The NCBC consists of a chairperson (a sitting or former judge of the suprem e court or of a highcourt) a social scientist and two persons having special knowledge in m atters relating to B Cs anda member-secretary who is, or has been, a secretary-level civil servant with the union govern-ment. These members hold office for a term of th c c years.The Co mm ission's main function includes the examination of requests for inclusion of any classof citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists prepared by the central government and tenderadvice on the matter. Such advice of the C omm ission is ordinarily binding upon the government.The central government is mandated to revise these lists at the interval of every ten years witha view to excluding or including new backward classes. While undertaking such revisions, thegovernment shall consult the Commission.

8.4 INTERNATIONAL AND REGIONAL MACHINERYIndia has ratified international human rights instruments. such as the International Covenant onCivil and Political Rights (ICCPR), the International Covenant on E conomic, Social and CulturalRights, the Convention on the Elimination of All Forms of Discrimination Against Wom en, andthe Convention Against Torture in 1979, 1992 and 1997 respectively. The Indian Governm ent isrequired ti, submit periodically reports to the treaty mo nitoring bodies under these UN Covenants1 Conventions.8.4.1 Human Rights Committee (HRC) on India's Reports

1Under Article 40 of the ICC PR, the ratifying states of the covenant are obliged to submit periodicreports to the HRC . These reports are expected to describe measures adopted to give effect to therights recognised in the covenant and on the progress made in the enjoyment of these rights.


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So far India has submitted three reports under ICCPR, though it has been a regular defaulter insubmitting them on time. It submitted its first report in 1983. The second and the third reportswere submitted in 1989 and 1995. India's third report was considered by the HRC in July 1997.The committee's comments and observations on the third report indicate that the human rightssituation is far from satisfactory in India.The Committee noted with concern the continued severe social discrimination against SCs; STs,OBCs and ethnic and national minorities. It regretted the de-facto perpetuation of the caste systementrenching social differences. In this regard, the Committee recommended measures to beadopted including education programmes to combat all forms of discrimination against thesevulnerable groups.Discussing the status of women in India, the committee noted: (i) under-representation of womenin public life, and (ii) religion-based personal laws violating rights of women to equality: Itrecommended enactment of personal laws fully compatible with the covenant. Given the humanrights norms of cultural pluralism, reforming community based personal laws is imperative toensure gender justice.

The Committee expressed its continued concern at the reliance on special powers under laws likethe Armed Forces (Special Powers) Act, the Public Safety Act and the National Security Act indisturbed areas. It also showed concern at the severe human rights violations by the securityforces acting under these laws as well as by the paramilitary and insurgent groups.The Committee recommended removal of restrictions on the NHRC from investigating directcomplaints against the armed forces and the limitation of one-year period within which com-plaints must be lodged. It also recommended encouraging all states to establish Human RightsCommissions.Concern was expressed at allegations that security forces do not always respect the rule of lawin general, and particularly in the context of custodial deaths, rape and torture. Among therecommendations were maadatory judicial inquiry into cases of disappearance, death or rape inpolice custody and "training and education in the field of human rights to law-enforcementofficers, custodial officers, members of security and armed forces, as well as judges and lawyers".The committee noted with concern the continued detention of 1600 people under the provisionof the lapsed TADA.In the concluding para, India's attention was drawn to the requirement, accordii.lg to rules, thatthe "next periodic report, due on 31 December 2001, should contain material which responds toall these concluding observations". The Committee further requested that "these concludingobservations be widely disseminated among the public at large in all parts of India".8.4.2 How to Promote Human RightsIn the absence of a regional machinery and not so effective international bodies, especially theUN Human Rights Committee, the responsibility of national institutions becomes all the moreimportant .for protecting human rights of their citizens. Moreover, the regional and internationalmechanisms merely 'stimulate the national governments, as the primary responsibility of imple-menting human rights provisions lies with the states concerned as per the international conven-tions. The international / regional efforts supplement the national endeavours through dialogue,discourses, networking, education and exchange of information etc.


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All reports of the national and international bodies should be placed in the country's legislatureband properly discussed.Check Your Progress 3

1. Discuss the Human Rights Committee recommendations on India's human rights situation................................................................................................................... . .................................................................................................................

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8.5 LET US SUM UPIn this unit, you have read about the various mechanisms for the protection of human rights inour country. You have also learnt about such mechanisms existing at the regional and interna-tional levels. After going through this unit, you should be in a position to explain the role, powerand functions of certain special institutions that are there in India for protecting human rights. Forinstance, the National Human Rights Commission (NHRC), the National Commission for Women(NCW), the National Commission for Scheduled Castes and Tribes etc. This unit is designed tohelp you develop an awareness about protection of your basic rights granted by the country'sConstitution and guaranteed under international human rights instruments which India is asignatory to.8.6 KEY WORDSBigamy: The act of going through a mamage ceremony with a person when one is alreadylawfully mamed to another personEquity: A set of legal principles designed to provide more satisfactory justice when an adequateremedy was not available under lawLitigation: The taking of legal action by a litigant. The field of law that is concerned with allcontentious mattersStatute: A law enacted by a parliamect or legislative bodyWrit: A written command of the state, usually issued by a court, to an official or other person-8.7 SOM E USEFUL BOOKS

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India and Human Rights (New Delhi: Lok Sabha Secretariat, 1998).K.P. Saksena (ed.), Human Rights: Fifty Years of India's Independence (New Delhi : GyanPublishing House, 1999).Human Rights in India - The Updated Amnesty Idternational Report (New Delhi: VistaarPublications, 1993).Annual Reports of NHRC, NCW, NCSC & STs.


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8.8 .ANSWERS TO CHECK YOUR PROGRESS EXERCISESCheck Your Progress 11. See subsection 8.3.1 (A).2 . - See subsection 8.3.2 (B).Check Your Progress 21. See subsection 8.3.2.2. See subsection 8.3.3.Check Your Progress 31. See subsection 8.4.1.

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