19 Institutional Arrangements for Civic And Human Rights: National Human Right Commissions

Dr. Amna Mirza

Institutional Arrangements for Civic and Human Rights: National Human Rights Commission

 

INTRODUCTION

The universality of human rights, their interdependence and indivisibility affirm the need for their co-existence for human dignity. Recognition and affirmation by the Vienna Declaration of the interdependence between democracy, development and human rights indicates that a correct perception of human right requires its study in the proper context.

The concept of human right is based on the dignity and worth of the individual, the unit of creation without reference to man-made artificial division based on colour, race, sex, religion etc. Human Rights are the essentials for realization of the true potential of every human being. The basic concept of equality is ingrained in human dignity, which encompasses not merely the civil and political rights but also the social, economic and cultural. It is obvious that all rights create relationship between individuals in a society to ensure respect for the rights of each other. It follows necessarily that human behavior in the society is itself regulated by the existence of these rights in each individual and that effect provides the linkage between the rights and duties of each human being. Respect for an individual’s right springs from the realization of that obligation in others. The human rights education must, therefore, include the education of obligations other as well. Human rights are not universal because they are timeless, but on the pretext that they are accepted everywhere as an ideal standard.

 

When we think about human rights, it signifies highest political percept and moral ideals. The tenor of language of Human rights often signifies a reformatory plea. The human rights card can be conclusive as well as persuasive in realm of decision making. They invoke the idea of special type of rights which has the dignity of the individual at its core. Human rights are ‘political’ as they refer to relation between an individual and its larger community and state. They seek to empower the individual by their cognizance.

 

When looked at the trajectory of rights, it has a long history. The Magna Carta in 1215 was about political settlements between the English king and barons who expressed displeasure over the taxes levied by the monarch. Further, the English Bill of Rights in 1689 was also in nature of indenture between the Parliament and the King to vindicate ancient rights and liberties.

The concept of human rights is no longer about natural law as they have found way into national and international order. They have a moral force based on context of their adoption. However, for human rights to be effective beyond the laws and decrees, they have to be internalized, and find way into people’s imagination.

It is not necessary for the present purpose to refer to the history of evolution of the concept of human rights through the ages and it is sufficient to confine to the concept of human rights emerging in the aftermath of the two world wars.

Since 1945, human rights have been defined as per local contexts and political needs. The end of Second World War, aftermath of decolonization, moral issues brought by the Vietnam War added a new impetus and thinking force behind the Universal Declaration of Human Rights.

In the cold war era, human rights were seen under the east versus west, where the narrative centred on self-determination, racial discrimination, liberty of the political system vis-à-vis communism and capitalism. The North-South clash over which form of human rights to priorities in terms of political and socio-economic rights was witnessed in UN International Women Year Conference in Mexico in 1975.

The security dimensions are being redefined from traditional security and military concerns, to non-traditional ones like environmental degradation, narcotics, terrorism, pandemics, women concerns, etc. where the threat cuts across borders and the point of threat cannot be traced at a particular locale. In such scene, the expansion of human rights often challenges the statist sovereignty which the United Nations held sacrosanct.

Simply stated, realization dawned more comprehensively after World War-II, that lasting peace in the world can be achieved only if the conduct of the international community is based on respect for human rights of all and socio-economic justice. Human rights were conceived as the inalienable rights of all members of the human family, which are inherent in human existence. The United National Charter (1946) recognized that international peace and a stable world order require the foundation of social justice and human rights. It reaffirmed faith in fundamental human rights, in the dignity and worth of the human person, in equality of man and woman and all nations. It proceeded to express the resolve of the united nation to promote social progress and better standards of life and pledged the Endeavour of the United Nations to ‘ encouraging respect for human rights and for human freedoms for all without distinction to race, sex, language or religion’.

This was followed, by the Universal Declaration of Human Rights adopted by the General Assembly on 10 December, 1948 which was the international effort to codify the fundamental human rights. The declaration was followed by a series of covenants and conventions. It is significant that incorporation of the basic human right became a constitutional practice in framing of the constitution of the nations to expressly incorporate these guarantees in the parent domestic law.

The Preamble of the Indian Constitution lays down the broad outlines of the Indian polity, ‘sovereign, secular, socialist, democratic republic’, with liberty, equality and fraternity to the citizens. Unlike the US constitution, which gives dual citizenship, the new sovereign India after becoming a republic in 1950 gave single citizenship. The Preamble begins with a ringing declaration of ‘We, the people of India’, which holds that sovereignty vests with the people of India.

The Constitution of India, which was in the process of being framed at that time and was adopted on November 26, 1949 contains express guarantee of the basic freedoms as Fundamental Rights in Part- III of the Constitution in addition to certain principles fundamental in governance called the Directive Principles of State Policy, which are enacted in Part- IV of the Constitution of India. Even though, the fundamental rights in Part- III are justiciable and include therein the constitutional remedy under Article 32 in the Supreme Court, the directive principles in the abstract are not justifiable. The aim of the directive principles is to promote socio-economic justice and to build an egalitarian state by formulation of policies to regulate the governance, accordingly. The Supreme Court of India, however, has utilized the directive principles to enlarge the scope and content of the fundamental rights and because of this process, non-justiciability of directive principles remains only academic in nature. This is the effect of enlarging the meaning, content and impact of the guarantee of human right in the Constitution of India.

In addition, part IVA contains article 51A which enumerates the Fundamental Duties of every citizen and must be read as a part of the compendium. Realization of the guarantee of rights requires observance of duties, because ‘all rights to be deserved and preserved come form duty well done’. It is significant that the inter-Action Council comprised of eminent persons has proposed to the United Nations a draft entitled ‘A Universal Declaration of Human Responsibilities’, dated 1 September, 1997 as a complement to the Universal Declaration of Human Right (UDHR) on the same principle quoting therein Mahatma Gandhi.

 

Institutional Arrangement for Civic & Human Right

United Nations resolved to promote higher standards of living. Full employment, conditions of economic and social progress and development. It further resolved to promote universal respect for the observance of human rights and fundamental freedoms for all without distinction as to the race, sex, language or religion. In the present caste ridden society, especially in the developing countries there have been gross violations of human right both by the people as well as by the state. Indian Constitution has made institutional arrangements for the protection of Human Rights by establishing National Human Rights Commission, National Commission for Women and National Commission for the Protection of Child Right.

 

THE NATIONAL HUMAN RIGHT COMMISSION OF INDIA

The proposal for a Commission as originally contained in a Human Right Commission Bill was introduced in the Lok Sabha on 14 May 1993. Commission was initially constituted on 12 October 1993 under the protection of Human Right Ordinance of 28 September 1993. Which was later presented to Parliament on 25 November 1993 to replace the ordinance and became ‘The Protection of Human Rights Act’, 1993?

The national Human Right Commission (NHRC) was established on Protection of Human Right Act. 1993, and is in conformity with the ‘Paris principles adopted at the first international workshop on national institutions for the promotion and protection of human right held in Paris in October, 1991, and endorsed by the General Assembly of the United Nations in Resolution 48/134 of December 20, 1993. The commission is an embodiment of India’s concern for the promotion and protection of human rights.

The objective of the Act is to provide for the Constitution of a National State Human Rights Commission and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto. Thus it has twin objectives to fulfill namely establishment of institutional structure both at centre and state level and cerate enforcement machinery by way of human rights Courts for Protection of Human Rights.

 

Certain Distinctive Features of the NHRC

The NHRC has certain distinctive features not enjoyed by other Commissions/Regulatory bodies/Autonomous institutions.

 

Composition

The statute lays down the high qualifications that the members are required to have/ to be eligible to be appointed to the Commission. Section 3 of the Act lays down that the Commission shall consist of :

  • Chairperson who has been a Chief Justice of the Supreme Court of India.
  • One member who is, or has been, a Judge of the Supreme Court of India.
  • One member who is, or has been, the chief Justice of a High Court
  • Two members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights.

The chairpersons of the National Commissions mentioned below are ‘ez-offcio’ members of the Commission:

  • The national Commission for Minorities.
  • The national Commission for the Scheduled Castes and Scheduled Tribes.
  • The national Commission for Women.

The other unique feature of the Commission lies in the level of the members of the Committee, on the basis of whose recommendations the Chairperson and members of the Commission shall be appointed.

Section 4 of the Act stated that the Chairperson and the Members of the Members of the commission are appointed by the President of India, on the recommendations of a Committee consisting of:

  • The prime Minister; Chairperson

  • The speaker of the House of the People: Member

  • The Minister-in-charge of the Ministry of Home Affairs in the Government of India: members

  • The leader of the Opposition in the House of the People: Member

  • The Deputy Chairman of the Council of States: Member

The high level and politically balanced quality of the Committee, together with the statutory requirements relating to the qualifications of the Chairperson and members of the Commission, result in the NHRC enjoying a high degree of credibility.

 

Administrative functioning of the Commission

There are five divisions in the Commission. Though each of these have been entrusted specific tasks, the Divisions work in close consultation and coordination with each other.

These are:

  • The Administration Division.

  • The Law Division.

  • The Investigation Division.

  • The Policy Research, Projects and Programmes Division (PRP&P Division).

  • The Information and Public Relations Division.

The chief executive officer of the Commission is the secretary-general, an officer of the rank of secretary to the Government of India. The secretariat of the Commission work under the general supervision of the secretary-General.

Functioning of the Commission

The Commission has a wide mandate including civil and political rights, economic, social and cultural, and group rights. Section 12lays down that the Commission shall perform all or any of the following functions,

Namely:

  • Inquiring, suo motu, or on petitions, presented to it by victims, or any persons on their behalf, into complaints of: violation of human rights of abetment thereof, or negligence in the prevention of such violation, by a public servant.

  • Intervening in any proceeding involving any allegation of violation of human rights pending before a Court, with the approval of Such Courts.

  • Visiting, under intimation to the state Government concerned, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, to study the living conditions of the protection of human rights, and recommending measures for their effective implementation.

  • Reviewing the factors, including acts of terrorism that inhibit the enjoyment of human rights, and recommending appropriate remedial measures.

  • Studying treaties and other international instruments on human rights, and making recommendations for their effective implementation.

  • Undertaking and promoting research in the field of human rights.

  • Spreading human rights literacy amongst various sections of society and promoting awareness of the safeguards available for the protection of these rights, through publications, through media, seminars and other available means.

  • Encouraging the efforts of non-governmental organisations, and institutions working in the field of human right.

  • Undertaking such other functions as may be considered necessary for the promotion of human rights.

 

The National Commission for Protection of Child Rights (NCPCR)

The National Commission for Protection of Child Rights (NCPCR) emphasises the principle of universality and inviolability of child rights and recognises the tone of urgency in all the child related policies of the country. For the Commission, protection of all children in the 0 to 18 years age group is of equal importance. Thus, policies define priority actions for the most vulnerable children. This includes focus on regions that are backward or on communities or children under certain circumstances, and so on. The NCPCR believes that while in addressing only some children, there could be a fallacy of exclusion of many vulnerable children who may not fall under the defined or targeted categories. In its translation into practice, the task of reaching out to all children gets compromised and a societal tolerance of violation of child rights continues. This would in fact have an impact on the program for the targeted population as well. Therefore, it considers that it is only in building a larger atmosphere in favour of protection of children’s rights, that children who are targeted become visible and gain confidence to access their entitlements.

  • Likewise, for the Commission, every right the child enjoys is seen as mutually-reinforcing and interdependent. Therefore the issue of gradation of rights does not arise. A child enjoying all her rights at her 18th year is dependent on the access to all her entitlements from the time she is born. Thus policies interventions assume significance at all stages. For the Commission, all the rights of children are of equal importance.

The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 as a statutory body under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006), an Act of Parliament (December 2005). It was set up to protect, promote and defend child rights in the country.

  • The functions of the Commission as laid out in the Act are as follows:

  • The Commission shall perform all or any of the following functions, namely;

  • Examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation

  • Present to the Central Government, annually and at such other intervals, as the Commission may deem fit, Reports upon the working of those safeguards

  • Inquire into violation of child rights and recommend initiation of proceedings in such cases

  • Examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disasters, domestic violence, HIV/ AIDS, trafficking, maltreatment, torture and exploitation, pornography, and prostitution and recommend appropriate remedial measures

  • Look into matters relating to children in need of special care and protection, including children in distress, marginalised and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures

  • Study treaties and other international instruments and undertake periodic review of existing policies, programmes, and other activities on child rights and make recommendations for their effective implementation in the best interest of children

  • Undertake and promote research in the field of child rights

  • Spread child rights literacy among various sections of society and promote awareness of the safeguards available for protection of these rights through publications, media, seminars and other available means

  • Inspect or cause to be inspected any juvenile custodial home or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority including any institution run by a social organization, where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary

  • Inquire into complaints and take suo moto notice of matters related to: Deprivation and violation of child rights

  • Non implementation of laws providing for protection and development of children Non compliance of policy decisions, guidelines or instructions aimed at mitigating

  • hardships to and ensuring welfare of the children and to provide relief to such children or take up the issues arising out of such matters with appropriate authorities

  • Such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions

  • The Commission, while enquiring into any matter, has all powers of the Civil Court trying a suit under the Code of Civil Procedures, 1908 and in particular, with respect to the following matters:

  • Summoning and enforcing the attendance of any person from any part of India and examining them on oath

  • Requiring the discovery and production of any documents Receiving evidence on Affidavits

  • Requisitioning of any Public Record or copy thereof from any Court of Office Issuing commissions for the examination of witnesses or documents

  • Forwarding cases to Magistrates who have jurisdiction to try the same

  • On completion of inquiry, the Commission has the powers to take the following actions: To recommend to concerned Government for initiation of proceedings for prosecution or other suitable action on finding any violation of child rights and provisions of law during the course of an inquiry

  • To approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary

  • To recommend to concerned Government or authority for grant of such interim relief to the victim or the members of his family as considered necessary.

 

CONSLUSION

The human rights movement in the new millennium needs to reflect on and be pro-active rather than reactive in evolving a new culture which is more sensitive, reflective and responsive to social relations. The focus must be the consciousness and arrest of those processes – political. Cultural, religious or economic which structure, generate, maintain and reproduce conflicts, violence and disrespect for human rights. Evolving the kind of culture requires working at various levels such as: (a) spreading awareness amongst masses, particularly amongst weaker, poor, disadvantaged and vulnerable groups, of and about their human rights, (b) improving capacities and confidence more so in the case of weak and disadvantaged to stand and ask for enforcement, protection and preservation of their rights, (c) sensitizing and requiring people to shed away some of their prejudices and attitudes which are derogatory of others’ dignity, (d) creating different kind of knowledge, innovating of reforming structures, evolving methodologies and normative regimes that are more responsive to human right jurisprudence, (e) devising and imparting new skills, training and competencies amongst the policy makers, decision makers and those responsible for executive these policies and human rights in discharging their functions. (f) Devisingh new and making effective existing structures of accountability so that state agencies and other power-holders can be easily held responsible for their disregard of human rights. This may gradually lead into the internalizing respect for human rights. Thus a massive transformation and education including higher education can play a significant role in bringing this revolution. Thus, acting as a catalyst of socio-economic transformation, process of education can play an important role in evolving hum rights culture.

The present world is going to be led by science and technology revolution. We have already witnessed the emergence of gene-technology, biologically manipulated products and many other such wonders. The real challenge is to ensure that through modern development in science and human exploitation and miseries. It is needed to ensure that new science and technology it does not acquire the arrogance and be the carrier of new kinds of human exploitations and miseries. It is needed to ensure that new science and technology become responsive and gets dedicated to the cause of humanity and human development .

‘ A nation’s ability to convert knowledge into wealth and social good through the process of innovation is going to determine its future’. The need is to empower the people and to develop strategies, which aim at development of capabilities of every individual to realize the full potential. Economics of knowledge is the methodology of improving the quality of governance through human development. The need is to harness the full potential of knowledge for human resource development, which is considerable in this region with its large population. Economics of knowledge provide the mechanism for forging tools to convert the intellectual capital into creative and productive kinetic energy to emerge as an economic power. The aim and objective of governance must be to achieve this end, and for this, it must become human governance i.e. good governance with focus on people’s welfare. The agenda must include these items together with mechanism for enforcing accountability of everyone exercising public power.

 

The emphasis on human dignity laid in the UN Charter, Universal Declaration of Human Rights and the several international covenants, as also in the national Constitutions, is the core value of human rights. The universally accepted belief that respect for human right is the only sure way of human development, which in the final analysis is the true index of progress and advancement. Human Right in the new millennium is the sure means of achieving not merely universal progress but also global peace and harmony.

 

References or Readings :-

  • Andrew Clapham, Human Rights: A Very Short Introduction, New York: Oxford University Press, 2007.

  • Jack Donnelly, Universal Human Rights in Theory & Practice, Cornell, Cornell University Press, 2003.

  • P.M. Bakshi, The Constitution of India, Delhi: Universal Law Publishing Co., 2007.

  • Atul Kohli, Democracy and Discontent in India: India’s Growing Crisis of Governability, first edition, Cambridge: Cambridge University Press, 1990.

  • Bidyut Chakrabarty, Indian Politics and Society since Independence: Events, Processes and Ideology, New York: Routeledge, 2008.

  • The National Human Rights Commission (NHRC) of India: nhrc.nic.in.

  • The National Commission for Women: ncw.nic.in.

  • The National Commission for Protection of Child Rights (NCPCR): ncpcr.gov.in.