The Protection of Human Rights Act, 1993

Law of Intellectual Property Rights, Human Rights and Environment · Unit II · Topic 7 of 17 · 6 min read

Why the Act was passed and the Paris Principles; the definition of human rights in section 2(1)(d); the composition, appointment and functions of the NHRC and State Commissions after the 2019 amendment; powers of inquiry, recommendations and the armed forces limit; Human Rights Courts; the one-year bar in N.C. Dhoundial; and a critical assessment, including the Commission's reach over health and environmental rights.

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On this page

1. Background
2. Definition of human rights
3. The National Human Rights Commission
4. Functions (section 12)
5. Powers and procedure
6. The courts on the Commission
7. Assessment
8. Health, food and environment before the Commission
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The Act is a regular long question in any LL.M. human rights paper: composition, functions, powers, procedure, limitations, and an assessment. In this paper, add a paragraph on whether the NHRC can deal with health, food and environmental rights, since those are the rights that IP and environmental law engage.

1. Background

By the early 1990s India faced international criticism over custodial deaths and the situations in Punjab and Kashmir. The UN had in 1991 drafted the Paris Principles on national institutions, endorsed by General Assembly Resolution 48/134 (1993): an independent body with a broad mandate set out in law, pluralist membership, adequate resources and powers to investigate. The Protection of Human Rights Ordinance was issued in September 1993; the Act (No. 10 of 1994) replaced it, with effect from 28 September 1993. It was amended in 2006 and, substantially, in 2019.

2. Definition of human rights

Section 2(1)(d): “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The “International Covenants” are the ICCPR and the ICESCR (and any other convention the Central Government notifies) (section 2(1)(f)).

The definition has two limbs joined by “or”, but the qualifier “enforceable by courts in India” narrows the second. A Covenant right counts only if Indian courts enforce it. In practice this is wide, because Article 21 has absorbed health, food, shelter, livelihood and a clean environment.

3. The National Human Rights Commission

Composition (section 3, as amended in 2019).

A Chairperson who has been Chief Justice of India or a Judge of the Supreme Court (the 2019 amendment added the second category).
One member who is or has been a Supreme Court judge, and one who is or has been a High Court Chief Justice.
Three members with knowledge or practical experience of human rights, of whom at least one must be a woman.
Ex officio members: the chairpersons of the National Commissions for Scheduled Castes, Scheduled Tribes, Women, Minorities, Backward Classes and Protection of Child Rights, and the Chief Commissioner for Persons with Disabilities.
A Secretary-General and staff, including an investigation wing.

Appointment (section 4) by the President on the recommendation of a committee of the Prime Minister, the Speaker, the Home Minister, the Leaders of the Opposition in both Houses and the Deputy Chairman of the Rajya Sabha. Term (section 6): three years or age seventy, whichever is earlier, with eligibility for reappointment (the 2019 amendment reduced the term from five years). Removal is by the President on grounds of misbehaviour or incapacity after a Supreme Court inquiry (section 5).

4. Functions (section 12)

Inquire, on its own motion or on a petition, into a violation or abetment of human rights, or negligence by a public servant in preventing it.
Intervene, with the court’s approval, in court proceedings involving allegations of violation.
Visit jails and other institutions where persons are detained.
Review constitutional and legal safeguards and recommend measures.
Review factors, including terrorism, that inhibit the enjoyment of human rights.
Study treaties and international instruments and recommend their implementation.
Undertake research and promote human rights literacy.
Encourage NGOs working in the field.

5. Powers and procedure

Section 13: the powers of a civil court for summoning witnesses, discovery, evidence on affidavit, requisitioning records and issuing commissions; its proceedings are judicial proceedings for certain purposes of the criminal law.
Section 14: use of the services of central or state investigating agencies.
Section 17: it may call for reports from governments or authorities, or itself inquire.
Section 18: after inquiry it may recommend payment of compensation or damages, initiation of prosecution, and interim relief; it may approach the Supreme Court or a High Court for directions. The government must report its action within one month.
Section 19: for armed forces, the Commission can only seek a report from the Central Government and make recommendations; it cannot investigate itself.
Section 36: no inquiry into a matter pending before a State Commission or another statutory commission, and none after one year from the date of the alleged violation.

State Human Rights Commissions (Chapter V, section 21 onwards) mirror the NHRC for State subjects; after 2019 the Chairperson can be a former Chief Justice or Judge of a High Court. Human Rights Courts (section 30): a Court of Session designated in each district, with a special public prosecutor (section 31), for speedy trial of offences arising from violations. Few states have made them work.

6. The courts on the Commission

National Human Rights Commission v. State of Arunachal Pradesh, 1996 INSC 38: on the NHRC’s own petition under Article 32, the Court protected Chakma refugees threatened with forcible eviction, holding that Article 21 protects every person, citizen or not.
Paramjit Kaur v. State of Punjab (Supreme Court, 1996–1998): the Court remitted the Punjab mass cremations matter to the NHRC, which it described as acting as a sui generis body with the Court’s authority, free of the limits in the Act.
N.C. Dhoundial v. Union of India, 2003 INSC 703: the Commission is a creature of statute; the one-year bar in section 36(2) goes to its jurisdiction, and it cannot inquire into older incidents.
High Courts have differed on whether recommendations under section 18 bind the government; the common view is that they are recommendations, but the government must give reasons for not accepting them and its refusal is open to judicial review.

7. Assessment

Strengths and weaknesses. The Commission has given compensation in a large number of custodial cases, set guidelines on encounter deaths and custodial deaths, and built human rights education. Its limits are structural: (1) recommendations, not orders; (2) section 19 shields the armed forces; (3) the one-year bar; (4) dependence on government investigators and funding; (5) appointments dominated by retired judges, which the 2019 amendment did not change; and (6) the Global Alliance of National Human Rights Institutions deferred its re-accreditation of the NHRC in 2023 and again in 2024, citing independence, pluralism and engagement with civil society. A critique in Upendra Baxi’s terms is that the Commission handles the violated individual well but structural violations, such as the effect of economic policy on livelihoods, poorly.

8. Health, food and environment before the Commission

Since Article 21 includes health, food and a clean environment, these are “human rights” under section 2(1)(d), and the Commission has taken them up: silicosis among mine and quarry workers, deaths in hospitals and from starvation, and pollution affecting communities. It can also, under section 12(d) and (f), review laws and recommend implementation of treaties, so it could examine the human rights effect of IP rules on medicine prices. It has rarely done so. An LL.M. answer can propose that the NHRC use its review function to report on access to essential medicines, seeds and biological resources, as the UN High Commissioner did for TRIPS in 2001.

How this is examined

Likely long questions: “Critically examine the composition, powers and functions of the National Human Rights Commission,” “Is the NHRC a toothless tiger? Discuss,” or “Explain the salient features of the Protection of Human Rights Act, 1993 and the 2019 amendments.” Short notes: the definition of human rights in section 2(1)(d); Human Rights Courts; State Human Rights Commissions; the Paris Principles; N.C. Dhoundial. Organise by background, definition, structure, functions, powers, limits and case law, then assess.