In 1993, the Indian Parliament enacted the Protection of Human Rights Act.
The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution.
To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.
The Protection of Human Rights Act defines Human Rights as 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.
A pending case before the High Court of Madras has assumed great significance.
A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on.
These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
Fourth Branch Institutions:
- According to the classical account, democracy is sustained through a distribution of power between three “branches”: the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
- However, the complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
- Some of these bodies are constitutional bodies established by the Constitution itself.
- These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General.
- Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
- The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.”
Human Rights Commissions: Powers and Autonomy:
In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions has come under scrutiny and criticism.
There have been the usual critiques of the politicisation of autonomous bodies, and selectiveness.
Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.
Human rights commissions should be provided with their independent cadre of staff with appropriate experience, so that they can function autonomously.
Meaning of the word “recommend” by the Human Rights Commission:
- The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
- Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps.
- The key question revolves around the meaning of the word “recommend.”
- According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose.
- Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month.
- As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights.
- To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions.
- The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
- Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity.
- For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation;
- various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so.
In this context, the Human Rights Commissions aims to ensure the full realisation of the constitutional commitment to protecting human rights and act as protector for citizens against arbitrary state action.
It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role that fourth branch institutions are expected to play in the constitutional scheme is significant.
And lastly, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings.
This provides strong reasons for its findings to be treated at the very least as quasi-judicial, and binding upon the state (unless challenged).
In sum, the crucial role played by a Human Rights Commission and the requirement of state accountability in a democracy committed to a ‘culture of justification’ strongly indicates that the Commission’s recommendations should be binding upon the state.