The Human Rights Commission's Watchdog Role

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India's National Human Rights Commission was created by the Protection of Human Rights Act, promulgated as an ordinance in September 1993 and enacted by Parliament shortly afterwards. The timing was not accidental. India was then under sustained international criticism over conditions in Punjab, Kashmir and the north east, and the creation of a domestic body with a retired Chief Justice at its head allowed the government to answer that criticism without submitting to external scrutiny. Critics have never let that origin go, and it remains part of the argument about the Commission. It is also an incomplete explanation, because the institution that resulted has a genuine statutory foundation and a caseload running into the tens of thousands each year.

The Commission's composition is set by statute. It is chaired by a person who has served as Chief Justice of India or, following an amendment passed in 2019, as a judge of the Supreme Court. Alongside the chair sit a serving or former Supreme Court judge, a serving or former Chief Justice of a High Court, and several members appointed for their knowledge of or practical experience in human rights, of whom at least one must be a woman. The chairpersons of a group of other statutory commissions, covering scheduled castes, scheduled tribes, women, minorities, backward classes, child rights and the rights of persons with disabilities, are members by virtue of their offices. Appointments are made by the President on the recommendation of a committee that includes the Prime Minister, the Home Minister, the Speaker of the Lok Sabha and the leaders of the opposition in both Houses. Most states have established parallel State Human Rights Commissions.

What it can do

The Commission may inquire on its own initiative, on a petition from a victim or any other person, or on a direction from a court, into two kinds of matter: a violation of human rights by a public servant, and negligence by a public servant in preventing such a violation. That second limb is important, because it captures the official who failed to act as well as the one who acted wrongly. In conducting an inquiry the Commission has the powers of a civil court under the Code of Civil Procedure: it can summon witnesses, compel evidence on oath, requisition public records and receive affidavits. It has its own investigation division and can order a visit to any jail or state run institution to examine the conditions of detention. It also reviews legal safeguards, comments on draft legislation and undertakes public education.

Its most consistently effective instrument has been the standing requirement, issued in its earliest years, that every custodial death and custodial rape be reported to it within twenty four hours, followed by a post mortem report, an inquest report and, in many cases, a videotape of the post mortem. This converted deaths in police stations and prisons from a purely local matter, easily buried, into a nationally logged event that the Commission could take up. Similar guidelines were issued for deaths in police encounters, requiring registration of a case, an independent investigation and a magisterial inquiry. Where a violation is established, the Commission can recommend that the state pay compensation, that departmental action or prosecution be initiated, and that practices be changed.

The limits built into the statute

Every one of those outcomes is a recommendation. The Commission cannot punish, cannot order compensation as a court can, and cannot enforce compliance; it can only require the authority concerned to report within a month on the action taken, and can publish its findings if the response is unsatisfactory. In practice a large proportion of its compensation recommendations are complied with, because the reputational cost of open defiance is real, but compliance is not universal and there is no remedy inside the Act when it fails. The Commission's fallback is publicity, through an annual report laid before Parliament.

Two further restrictions are more serious. The first concerns the armed forces. Section 19 of the Act provides that where a complaint involves the armed forces, the Commission may only seek a report from the central government and then make recommendations on that report; it cannot conduct its own investigation, summon personnel or visit the site. In regions where the Armed Forces (Special Powers) Act has been in force, this removes from the Commission's reach precisely the allegations that generated the demand for it. The second is a limitation period: the Act bars inquiry into a matter more than one year after the alleged violation, which excludes cases where evidence surfaces late or where a complainant was too frightened to come forward while the officers concerned were still in place. A third, structural criticism is that the Commission's investigation wing is staffed largely by serving or deputed police officers, so that the body examining police conduct is composed of police, and independent human rights organisations have argued for a genuinely separate cadre.

The dispute over the Commission's independence is not confined to India. National human rights institutions are assessed internationally against the Paris Principles, a set of United Nations endorsed standards on autonomy, pluralism, adequate funding and transparent appointment, through a peer review run by the Global Alliance of National Human Rights Institutions in Geneva. India's Commission has long held the top A grade, which confers speaking rights at United Nations human rights bodies. Its reaccreditation has, however, been deferred more than once in recent years, with the reviewing subcommittee raising the police staffing of investigations, the narrowness of the appointment committee, and the absence of civil society and minority representation among members. The Commission has contested those findings.

A fair assessment therefore has to hold two things at once. In routine cases involving ordinary complainants, police refusal to register a case, illegal detention, deaths in a district jail, bonded labour, failures of relief after a disaster, the Commission is often the cheapest and fastest lever available to a person with no lawyer, and it has extracted compensation and departmental action in very large numbers of such cases. In politically loaded cases, particularly those touching the armed forces, communal violence or security operations, its record is far more heavily criticised, both by domestic organisations and by international reviewers, and it has sometimes been accused of taking the state's account at face value. It is a watchdog with real teeth on small matters and a mostly advisory voice on large ones, and the gap between those two capacities is written into the statute that created it rather than into the character of any particular chairperson.

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