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DAILY NEWS ANALYSIS

  • 01 June, 2021

  • 15 Min Read

Arun Kumar Mishra likely to be the new NHRC Chairperson

Arun Kumar Mishra likely to be the new NHRC Chairperson

  • Former Supreme Court Justice Arun Kumar Mishra is likely to be the new Chairperson of the National Human Rights Commission (NHRC) after a high-powered recommendation committee proposed his name.
  • Former Chief Justice of the Jammu and Kashmir High Court, Mahesh Mittal Kumar, and former Director of the Intelligence Bureau, Rajiv Jain, had also been recommended by the high-powered panel as members of the NHRC, but the official notification is yet to be out until the filing of this report.
  • The selection panel consisted of
  1. Prime Minister Narendra Modi;
  2. Home Minister Amit Shah;
  3. Deputy Chairman of the Rajya Sabha, Harivansh;
  4. Lok Sabha Speaker Om Birla; and the
  5. Leader of the Opposition in the Rajya Sabha, Mallikarjun Kharge.
  • For over five months now, the NHRC has been without a full-time head after Justice H.L. Dattu retired last December.
  • A highly-placed source said while 12 names were shortlisted for the two vacancies, the shortlisted candidates for the position of Chairperson included three former Chief Justices of India (CJIs).

NHRC and SHRC, 1993

  • Both are Statutory Autonomous bodies established under Protection of Human Rights Act, 1993.
  • It is the watchdog of Human Rights in India. They are Rights w.r.t. Life, Liberty, Equality & dignity guaranteed by Constitution or of International Covenants. Accordingly 25 States have constituted SHRCs through official Gazette Notifications.

NHRC

SHRC

  1. Composition of NHRC: Chairman, 4 members and 4 Ex-officio members.
  2. Qualifications for NHRC:
    1. Chairperson should be a Retd. CJI and
    2. Members should be Serving or Retired Judge of SC, a Serving or Retd CJHC and 2 persons having practical experience of Human Rights.
    3. 4 Ex-officio members are Chairmen Of National Commission of Minorities, SCs, STs, Women.
  3. Appointment: by Prez on the recommendations of a 6 member Committee: PM as its head, Speaker of Lok Sabha, Deputy Chairman of Rajya Sabha, Leader of Opposition in both Houses of Parliament and Home Minister.
  4. Further, a sitting Judge of SC or a sitting Chief Justice of HC can be appointed only after consultation of CJI.
  1. Composition of SHRC: Chairperson & 2 members.
  2. Qualifications for SHRC:
    1. Chairperson should be a Retd. CJHC and
    2. Members should be serving or Retd. Judge of HC or Dist Judge in the State for > 7 years’ experience and having knowledge or practical experience of human rights.
  3. Appointment by Gov (but removal by Prez) on the recommend of a Committee consisting of CM as its head, Speaker of Legislative Assembly, State Home Minister and Leader of Opposition of Legislative Assembly. If State has LC, then the committee also has Chairman of LC and Leader of Opposition of LC. Further, a sitting JoHC or a sitting Dist Judge can be appointed only after consultation of CJHC of the State concerned.

  • Tenure (of both NHRC & SHRC): 5 years or 70 years whichever is earlier. Not eligible for further Employment under Center or States.
  • Removal (of both NHRC & SHRC) by Prez: (Same as of UPSC, CVC, CIC) Removal is done only by Prez under the following conditions:
    1. If he has gone bankrupt or If, according to Prez, he is of unsound mind or If he is involved in paid employment outside the duties of office.
    2. Prez can also remove her in case of Misbehavior or incapacity (defined in Constitution), Prez refers this matter to SC. SC’s decision is binding on Prez. Then he may remove. During the course of enquiry by the SC, Prez can suspend them.
  • The salary, allowances & service conditions are determined by C / S govt & can’t be varied to his disadvantage post appointment.
  • Functions of Both:
    1. To strengthen the institutional arrangements through which human rights could be addressed in their entirety and in a more focused manner.
    2. To inquire into any violation of Human Rights, either suo motu or on a petition presented to it or an order of a Court. SHRC can only enquire into matters related w State List or Concurrent List of the 7th Schedule of the Constitution. However if any such cases is enquired by NHRC or any other Statutory Commission, then SHRC doesn’t inquire into that case.
    3. To intervene in any proceeding involving allegation of violation of Human rights pending before a Court.
    4. To visit jails or detention places, study the living conditions of inmates and make recommendations.
    5. To review the Constitution and legal safeguards for the protection of HRs and make recommendations.
    6. To review the factors including acts of terrorism that inhibit the enjoyment of rights and recommend remedial measures.
    7. To spread human rights literacy and encourage the efforts of NGOs working in this direction.
    8. To study treaties and international agreements on Human Rights and make recommendations.
    9. To undertake and promote research in the field of Human Rights.
    10. To undertake such other functions as it may consider necessary for the promotion of human rights.
  • Working:
    1. It can't by itself punish the guilty. That is the responsibility of courts. It makes independent and credible enquiry into any case of violation of human rights. Also if any govt officer neglects.
    2. It regulates its own procedure. It has all the powers of a Civil Court and its proceedings have a judicial character. It may call for info or reporty from C & S govts or any subordinate authority.
    3. The NHRC has its own nucleus of working staff for investigation. Besides, it is empowered to utilize the services of any officer or investigating agency of C or S govt. It has also established effective coop with NGOs with 1st hand info about HR violations.
    4. It can only look into the matter of violation within 1 year of its occurrence and not after that.
    5. After enquiry, It may recommend the concerned government or authority
      1. To make payment of compensation or damages to the victim.
      2. The initiation of proceedings or any other action against the guilty public servant.
      3. For the grant of immediate interim relief to the victim.
    6. It may approach the SC or HC concerned for the necessary directions, orders and writs.
    7. It can summon witnesses, question any govt official, demand any official paper, visit any prison for inspection or send it's own team for on the spot inquiry.
  • Criticisms:
    1. It has no power to punish the violators of Human Rights nor can it provide any relief to the victim.
    2. The functions are mainly recommendatory in nature. Not binding. But it should be informed about the action taken on its recommendations within 1 month.
    3. The Commission has a limited role, powers and jurisdiction wrt violation of human rights by the member of Armed forces. In this sphere NHRC may seek a report from Govt and make recommendations. Center has to inform on actions taken within 3 months.
    4. Yet the govt considers cases forwarded by it. It is therefore improper to say that the Commission is powerless. It enjoys great material authority and no govt can ignore its recommendations.
    5. NHRC submits its annual report to Central govt and State govt concerned. SHRC submits to State govt.
  • Protection of Human Rights Act, 1993 also provides for the establishment of Human Rights Courts:
    1. Acc to the act, HRC can be est in every district for speedy trial of violation of Human Rights.
    2. These Courts can be set up by the State govt only w the concurrence of concerned CJHC.
    3. For every HRC, State govt specifies a public prosecutor or appoints an advocate (practice > 7 years) as a special public prosecutor.
    4. Protection of Human Rights (Amendment) Act, 2006
      1. NHRC can undertake visits to jails even without intimation to State Govt.
      2. Chariman and members of NHRC resign to Prez, and SHRC resign to Guv.
      3. NHRC can transfer complaints received by it to SHRCs.

Source: TH


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