The Protection of Human Rights Act and the National Human Rights Commission

India's constitutional courts could already enforce fundamental rights before 1993 through writ jurisdiction under Articles 32 and 226 of the Constitution, and public interest litigation had opened the courts to prisoners, detainees and victims of custodial violence through the 1980s.

What the courts could not do was watch continuously. A writ petition depends on someone filing it, moves at the pace of litigation, and produces a remedy for the petitioner rather than a standing check on how police stations and jails are run day to day.

Two pressures pushed Parliament toward a dedicated commission. First, international scrutiny of custodial deaths, encounter killings and prison conditions was rising through the early 1990s, and India wanted a domestic institution that could show it was taking these complaints seriously without waiting for a court case. Second, domestic committees and civil society had documented that complaints against the police rarely reached any independent body; the police investigated the police, and departmental inquiries carried an obvious conflict of interest.

The Protection of Human Rights Act, 1993 was Parliament's answer: a body with the power to inquire on its own motion, visit institutions unannounced, and publish what it found, sitting alongside the courts rather than replacing them.

The Act defines human rights broadly, covering the rights to life, liberty, equality and dignity guaranteed by the Constitution or embodied in international covenants that India has ratified, which lets the Commission draw on international human rights law even where no domestic provision spells out a particular protection.

The Commission does not try cases or convict anyone. Its output is a report: a finding of fact, a recommendation for compensation, prosecution or departmental action, and, in serious cases, a public statement that draws media and political attention. That design trades enforcement power for speed, reach and the ability to act without waiting for a complainant with the resources to litigate.

The Act also lets the Commission act entirely on its own initiative. A newspaper report of a custodial death, a television broadcast of a police beating, or a letter from a prisoner's family can be enough to open an inquiry, with no requirement that the person affected file a formal complaint or hire a lawyer.

This suo motu power matters most for people who are the least able to approach a court on their own, undertrial prisoners, migrant labourers detained far from home, or residents of remote districts where a High Court bench sits hundreds of kilometres away. A standing commission with staff and investigators built in can reach these cases in a way an on-demand judicial system, dependent on someone filing a petition, cannot easily match.

The National Human Rights Commission is a multi-member body. Its chairperson has, since a 2019 amendment to the Act, been drawn from either a former Chief Justice of India or a former judge of the Supreme Court, a change from the original 1993 requirement that restricted the post to a retired Chief Justice alone.

The Commission also includes full-time members, some of whom must have been judges of the Supreme Court or a High Court, alongside members chosen for demonstrated knowledge of or practical experience in human rights work.

Alongside its own members, the Act adds several ex officio members: the chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes, the National Commission for Women, the National Commission for Backward Classes and the National Commission for Protection of Child Rights, along with the Chief Commissioner for Persons with Disabilities.

These ex officio seats give the Commission a direct line to bodies that already specialise in the rights of particular groups, so a complaint that overlaps with caste, gender, child rights or disability does not have to start from zero.

A State Human Rights Commission mirrors this structure at state level, with a chairperson who is a former Chief Justice or judge of a High Court and a small number of members. Its jurisdiction is confined to matters that fall within the state list and excludes subjects the Constitution reserves to the Union, and it cannot inquire into a matter already before the NHRC.

Several states, including some of the largest by population, still had no functioning State Human Rights Commission for long stretches after the Act came into force, which left large parts of the country dependent on the national body alone, or on ad hoc state committees with no statutory footing.

The selection process itself has drawn criticism. Appointments run through a committee chaired by the Prime Minister that includes senior ministers and opposition leaders from Parliament, but critics, including bodies reviewing India's compliance with the Paris Principles, have argued the process gives the executive too much weight relative to civil society and produces commissions dominated by retired judges and bureaucrats rather than a broader mix of human rights expertise.

Members hold office for a fixed term set out in the Act, and the Act bars a former chairperson or member from further government employment after leaving the Commission, a safeguard meant to prevent an appointee from softening findings in the hope of a later posting.

Removal before the end of a term is deliberately difficult: it requires a Supreme Court inquiry into proved misbehaviour or incapacity, the same standard the Constitution applies to removing a sitting judge, which insulates members from being pushed out simply for reaching findings a government dislikes.

The Act gives the Commission the procedural powers of a civil court trying a suit. It can summon and enforce the attendance of witnesses, examine them under oath, require the discovery and production of documents, receive evidence on affidavit, requisition public records from any court or office, and issue commissions for examining witnesses or documents. These powers let the Commission build a factual record even when the state agency under scrutiny is unwilling to cooperate voluntarily.

A second and distinctive power is the right to visit, without prior notice, any jail or other institution under the control of a state government where persons are detained or lodged for reform, treatment or protection, to study the living conditions of the inmates and make recommendations. This inspection power is what lets the Commission function as a standing monitor of prisons and lock-ups rather than a body that only reacts to individual complaints after the fact.

The Commission can also intervene in a proceeding involving an allegation of a human rights violation pending before a court, with the court's approval, and it can review the safeguards provided under the Constitution or any law for the protection of human rights and recommend measures for their effective implementation. It regularly reviews factors, including terrorism, that inhibit the enjoyment of human rights and studies treaties and international instruments to recommend steps for their effective implementation.

Two structural limits sit alongside these powers. The Commission cannot inquire into any matter after one year has passed from the date the act complained of is alleged to have taken place, a limitation period meant to keep inquiries close to the underlying events but one that also shuts out delayed disclosures, common in custodial and sexual violence cases.

And where the alleged violation concerns the armed forces, the Commission can only seek a report from the central government and make its recommendations after receiving it; it cannot summon the personnel involved or conduct its own on-site inquiry the way it can with the police.

For most complaints, the Commission does not conduct the entire inquiry with its own staff from start to finish. It routinely directs the relevant state government, district magistrate or superintendent of police to investigate and report back within a set period, and it can also depute its own investigating team where the complaint is serious enough or where it doubts the objectivity of a state-led inquiry, for instance a death in police custody where the same police force would otherwise investigate itself.

This mix of delegated and direct investigation lets a Commission with a limited staff of its own cover a country-sized caseload, at the cost of depending, for many complaints, on the same authorities whose conduct is under scrutiny.

Every power described so far ends in the same place: a recommendation. If the Commission concludes that a public servant violated someone's human rights, it can recommend that the government initiate proceedings for prosecution, take departmental action, or grant interim relief and compensation to the victim or their family.

It cannot order any of this itself. The Act requires the concerned government or authority to inform the Commission of the action taken on its recommendations within a specified period, but it attaches no penalty for non-compliance beyond the Commission's power to publish that response, or the absence of one, in its annual report.

This is the central design choice critics keep returning to. Because compliance is voluntary, an unwilling state government can accept a recommendation in principle and then delay compensation for years, or decline to prosecute an officer the Commission has named, and the Commission has no contempt power comparable to a court's to compel action.

Supporters of the design respond that the Commission's real power is publicity and moral authority rather than coercion. A public finding against a police force or a state government carries a political cost, feeds parliamentary questions and media coverage, and has in practice pushed governments to pay compensation and open prosecutions they would not otherwise have pursued.

The gap between finding and enforcement shows most clearly in cases involving powerful institutions. Recommendations touching the armed forces or paramilitary units, already limited to a report-and-recommend procedure under the Act, are especially difficult to convert into disciplinary action, since the Commission depends entirely on the concerned ministry's own account of what happened.

The same is true for recommendations directed at a state government that is politically opposed to the Commission's findings, where compliance can effectively be refused without formal consequence.

Comparative reviewers, including the international accreditation process discussed later in this topic, treat recommendatory-only authority as a common and defensible feature of national human rights institutions worldwide, provided the body's independence and transparency are strong enough that its findings still carry weight. The debate in India's case is less about whether recommendatory power is legitimate in principle and more about whether the Commission's own appointments process and resourcing give its recommendations enough independent standing to make the pressure work.

The Commission has tried to convert its annual reporting duty into a form of ongoing pressure rather than a once-a-year formality. It publishes case-level outcomes, including instances where a state government has not responded to a recommendation within the period the Commission asked for, and it can, and does, bring persistent non-compliance to the attention of Parliament through its annual and special reports, which the central government is required to lay before both Houses along with a memorandum of action taken.

Whether that reporting duty changes behaviour depends heavily on how much political attention a given case attracts, which means the Commission's practical reach still varies with the profile of the complaint far more than a court's would.

The Act anticipates that ordinary criminal courts might be too slow or too entangled with the local police to try human-rights offences fairly, so it allows a state government, with the concurrence of the Chief Justice of the relevant High Court, to specify a Court of Session in each district as a Human Rights Court for the speedy trial of offences arising out of the violation of human rights, and to appoint a public prosecutor for that court.

In practice, few states have notified Human Rights Courts under this provision, and where they exist, they have often functioned as an existing Sessions Court handling such cases as part of its regular docket rather than a genuinely specialised forum with dedicated staff and procedure. Researchers and successive parliamentary reviews of the Act have flagged this underuse as one of its clearest implementation gaps.

Where the Commission's design has visibly changed practice is in custodial death inquiries. The NHRC requires every police station and jail to report a death in custody or during a police encounter within twenty-four hours, and it treats a failure to report promptly as itself a matter for adverse comment.

A reported custodial death triggers a mandatory magisterial inquiry, and the Commission's guidelines call for videography of the post-mortem examination, a practice meant to reduce the chance that injuries are concealed or the cause of death misrecorded. These procedural guidelines were built up over successive Commission directions rather than spelled out in the 1993 Act itself, an example of the Commission using its recommendatory reach to standardise practice nationally even without binding rule-making power.

Encounter killings, deaths that police describe as the result of an exchange of fire with a suspect, have been a recurring subject of Commission scrutiny because they are the cases most likely to be staged to disguise an extrajudicial killing.

The Commission has issued standing guidelines requiring an independent investigation of every alleged encounter death, registration of a first information report, and a magisterial inquiry, and it treats compliance with these guidelines as a factor in whether it accepts a state's account of an incident.

These guidelines echo the standard the Supreme Court set for arrest and custody procedure more broadly in D.K. Basu v. State of West Bengal (1997), which laid down safeguards, including recording the time and place of arrest and permitting a friend or relative to be informed, that the Commission's own custodial guidelines draw on and reinforce.

None of this makes the Commission a substitute for a criminal trial. A finding that an officer was responsible for a custodial death is a recommendation to prosecute, not a conviction, and the criminal case, if one follows, still has to go through the ordinary evidentiary standard before a Sessions Court.

What the Commission adds is an early, independent fact-finding step that operates faster than a criminal trial, applies pressure through publicity in cases the trial process might otherwise never surface, and creates a documentary record, medical evidence, witness statements, custody logs, that a later prosecution or civil claim for compensation can draw on even if the Commission itself never disciplines anyone directly.

The Commission's design did not emerge in isolation. The Paris Principles, a set of minimum standards for national human rights institutions, were adopted at an international workshop in Paris in 1991 and endorsed by the UN General Assembly in 1993, the same year India passed its own Act.

The Principles call for a pluralistic membership representative of civil society, a broad mandate covering both promotion and protection of human rights, adequate funding independent of government control, and powers of investigation strong enough to make the institution's findings credible.

India's NHRC was built with these standards explicitly in view, and it has repeatedly sought accreditation as an institution that meets them through the Global Alliance of National Human Rights Institutions, the body that reviews national commissions against the Paris Principles.

That accreditation process has not been a formality. Reviewers have periodically raised concerns about the pluralism of the selection committee, the proportion of former civil servants and judges among the Commission's members relative to independent human rights experts, and the practical limits on its powers over the armed forces and the one-year bar on stale complaints. These are the same features described earlier in this topic, seen from the outside rather than the inside.

Placed next to comparable bodies elsewhere, the NHRC's strengths and limits come into sharper focus. The Equality and Human Rights Commission (EHRC) in the United Kingdom was created by the Equality Act 2006 and began operating in 2007, merging three earlier equality bodies into one commission with a mandate covering both discrimination and the wider Human Rights Act framework.

Like the NHRC, the EHRC relies mainly on investigation, reporting and strategic litigation rather than binding disciplinary power over public bodies, but it can bring its own legal proceedings and use formal enforcement notices in discrimination matters, a tool closer to compulsion than anything available to the NHRC.

South Africa took a different route, writing its national institution directly into the Constitution. The South African Human Rights Commission (SAHRC) is one of the state institutions supporting constitutional democracy established under Chapter Nine of the Constitution of the Republic of South Africa, 1996, with its detailed powers set out in national legislation.

Constitutional entrenchment gives the SAHRC a degree of institutional security that a body created by ordinary statute, like the NHRC, does not automatically have, since a Chapter Nine institution cannot be abolished or have its core mandate stripped by an ordinary act of Parliament in the way the Protection of Human Rights Act theoretically could be amended or repealed.

In practice, all three commissions share the same basic bargain: broad power to investigate and report, and comparatively narrow power to force compliance once they have.