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Human Rights and their Scope in India

Indian Polity Human Rights

The Human rights

As per the Protection of Human Rights Act, 1998, “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodies in the International Covenants and are enforceable by courts in India”.

1. India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, social and Cultural Rights, adopted by the General Assembly of the United Nations on the 16th December, 1966. The human rights embodied in the aforesaid Covenants stand substantially protected by the Constitution.

2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regards to this changing social realities and the emerging trends in the nature of crime and violence, the Government has been reviewing the existing laws, procedures and system of administration of justice with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation.

3. Wide ranging discussions were held at various fora such as the Chief Minister’ Conference on Human rights, seminars organized in various parts of the country and meetings with leaders of various political parties.

National human rights commssion

The Protection of Human Rights Act, 1993 provides for the constitution of a National Human Rights Commission. State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto.

Constitution ofa National Human Rights Commission

The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

The Commission shall consist of

A Chairperson who has been a Chief Justice of the Supreme Court;

One Member who is or has been, a Judge of the Supreme Court;

One Member who is, or has been, the Chief Justice of a High Court;

Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.

There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.

The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.

Appointment of Chairperson and Other Members

The Chairperson and other Members shall be appointed by the President by warrant under his hand and seal. Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a Committee consisting of

The Prime Minister —Chairperson
Speaker of the House of the People — Member
Minister in-charge of the Ministry of Home Affairs in the Government of India — Member
Leader of the Opposition in the House of the People — Member
Leader of the Opposition in the Council of States — Member
Deputy Chairman of the Council of States — Member
Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.
No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee.

Removal ofa Member ofthe Commission

Subject to the provisions of sub-section (2), the Chairperson or any other Member of the Commission shall only be removed from his office by order of the President on the ground of proved misdermour or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be

is adjudged an insolvent; or

Engages during his term of office in any paid employment out side the duties of his office: or

Is unfit to continue in office by reason of infirmity of mind or body; or

Is of unsound mind and stands so declared by a competent court; or

Is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

Terms and Conditions of Service of Members

The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed. Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment.

Functions of the commission

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

inquire, suomotu or on a petition presented to it by a victim or any person on his behalf, into complaint of
Violation of human rights or abetment thereof ornegligence in the prevention of such violation, by a public servant;
Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
Visit, under intimation to the State Government, 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 inmates and make recommendations thereon;
Review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
Study treaties and other international instruments on human rights and make recommendations for their effective implementation;
Undertake and promote research in the field of human rights;
Spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
Encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

Such other functions as it may consider necessary for the protection of human rights.

Powers relating to inquiries

(1 ) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters, namely :

(a) Summoning and enforcing the attendance of witnesses;

(b) Discoveryand production of any document;

(d) Requisitioning any public record or copy thereof from any court or office;

(e) Issuing commissions for the examination of witnesses or documents;

(f) Any other matter which may be prescribed.

(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.

(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorized in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies there from subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.

(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.

(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Investigation

(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilize the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.

(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilized under sub-section (1) may, subject to the direction and control of the Commission.

(a) Summon and enforce the attendance of any person and examine him;

(b) Require the discovery and production of any document; and

(3) The provisions of section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilized under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

(4) The officer or agency whose services are utilized under sub-section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf

(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.

Inquiry into Complaints

The Commission while inquiring into the complaints of violations of human rights may-

(i) Call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it; Provided that-

(a) If the information or report is not received within the time stipulated by the Commission, it may proceed to inquire re into the complaint on its own;

(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;

(ii) Without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.

Steps after Inquiry

The Commission may take any of the following steps upon the completion of an inquiry held under this Act namely:

(1) where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(2) Approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(3) Recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;

(4) Subject to the provisions of clause (5), provide a copy of the inquiry report to the petitioner or his representative;

(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;

(6) The Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.

Procedure with respect to armed forces

(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:

(a) It may, either on its own motion or on receipt of a petition, seek a report from the Central Government;

(b) After the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.

(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.

Annual and Special Reports ofthe Commission

(1) The Commission shall submit an annual report to the Central Government and to the State Government concerned and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

(2) The Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any.

State human rights commissions

Constitution of State Human Rights Commissions

(1) A State Government may constitute a body to be known as the ............ (Name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter.

(2) The State Commission shall consist of

(a) Chairperson who has been a Chief Justice of a High Court;

(b) One Member who is, or has been, a Judge of a High Court;

(d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

(3) There shall be a Secretary who shall be the Chief Executive of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him.

(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.

(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List lll in the Seventh Schedule to the Constitution:

Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:

Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures “List ll and List lll in the Seventh Schedule to the Constitution”, the words and figures “List lll in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws” had been substituted.

Appointment of Chairperson and Other Members of State Commission

(1) The Chairperson and other Members shall be appointed by the Governor by warrant under his hand and seal :

Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of

(a) The Chief Minister — Chairperson

(b) Speaker of the Legislative — Member Assembly

(d) Leader of the Opposition in the — Member Legislative Assembly

Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the Opposition in that Council shall also be members of the Committee.

Provided also that no sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State

(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee.

Removal ofa Member ofthe State Commission

(1) Subject to the provisions of sub-section (2), the Chairperson or any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

(2) Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be –

(a) Is adjudged an insolvent; OR

(b) Engages during his term of office in any paid employment outside the duties of his office; OR

(d) Is of unsound mind and stands so declared by a competent court; OR

(e) Is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

Term of Office of Members ofthe State Commission

(1) A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier;

(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years;

Provided that no Member shall hold office after he has attained the age of seventy years.

(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India.

Annual and Special Reports of State Commission

(1) The State Commission shall submit an annual report to the State Government and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

(2) The State Government shall cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on the recommendations of the State Commission and the reasons for non-acceptance of the reactions, if any.

HUMAN RIGHTS COURTS

For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences.

Provided that nothing in this section shall apply if

A Court of Session is already specified as a special court; or

A special court is already constituted, for such offences under any other law for the time being in force.

Special public prosecutor

For every Human Rights Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.

Right to information

In 1766, Sweden was the first country to introduce right to information. The other Scandinavian countries followed it later. Finland enacted the Freedom of Information legislation in 1951. Both Denmark and Norway did it in the year of 1970. The Constitution of South-Africa gives guarantee of right to information. In UK freedom of information act came into force in 2005.The Constitution of India has no direct provision expressly conferring right to information to the citizen. However, in 1975 Supreme Court stated that right to information is an intrinsic part the two fundamental rights under Articles 19 and 21. In 2005, Parliament enacted RTI (Right to Information) act, replacing the freedom of information Act, 2002.

Highlights of the Act

1. It provides for the appointment of an information officer in each department to provide information to the public on request.

2. It fixes a 30 day deadline for providing information; deadline is 48 hours if information concerns life or liberty of a person.

3. Information will be free for BPL (Below Poverty Line) people and fee for the reasonable for the others.

4. The act imposes obligation on public agencies to disclose the information sou-motu to reduce requests for an information.

5. Government bodies have to publish details of staff payments and budgets.

6. It provides for the establishment of a Central Information Commission and State Information Commission to implement the provision of the act. They will be independent high level bodies to act as appellate authorities and vested with the powers of a civil court.

7. The President will appoint a Chief Information Commissioner and governor of state will appoint State Information Commissioners. Their term will be 5 years.

8. The act overrides the official secrets act 1923.

9. Certain types of information are prohibited like:

(a) The sovereignty and integrity of the country, the security, strategic, scientific or economic interest of the state, relation with foreign states.

(b) Forbidden to be published by any court.

(d) Information including commercial, confidence, trade secrets or intellectual property etc.

Facts

(1) Tamil Nadu was the first state to enact legislation on this subject.

Other facts

The Central Government shall pay to the Commission by way of grants such sums of money for being utilized for the purposes of this Act.
The State Government shall, pay to the State Commission by way of grants such sums of money for being utilized for the purposes of this Act.
The Accounts of the Commission shall be audited by the Comptroller and Auditor-General
The accounts of the State Commission shall be audited by the Comptroller and Auditor-General
The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.

TRANSGENDERS

The Supreme Court has recognised India's long marginalised transgender community as a third gender and, in a landmark judgment lauded by human rights groups, called on the government to ensure their equal treatment.

"Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue," the Supreme Court's two-judge bench said in its ruling.

"Transgenders are also citizens of India. The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender."

The court ruling - which came after hearing a petition filed by a group of transgenders demanding equal rights - recognised the community as a marginalised group and directed authorities to implement policies to improve their socio-economic status.

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