~NATIONAL HUMAN RIGHTS COMMISSION OF INDIA

FORMATION, FUNCTIONING AND FUTURE PROSPECTS

~NATIONAL HUMAN RIGHTS COMMISSION OF INDIA

FORMATION, FUNCTIONING AND FUTURE PROSPECTS

Volume — II

SECOND REVISED AND ENLARGED EDITION

ARUN RAY

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KHAMA PUBLISHERS

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~4

Coordination Between the Government and Non-Governmental Organisations

Optimum realisation of human rights can be achieved through the enactment/development of protective law and the establishment of mechanisms to implement that law. National human rights institutions, along with inter-governmental and nongovernmental organisations, can play an important role in promoting human rights at the domestic level. According to the Paris Principles relating to the status of national institutions, a national human rights institution should “cooperate with the United Nations and other organisations in the United Nations System, the regional institutions and the national institutions of other countries that are competent in the areas of the promotion and protection of human rights”. Cooperation and collaboration, in fact, reinforce the initiatives taken by an institution and thereby enhance its overall effectiveness. National Human Rights Commission is well aware of these principles and hence developed a close and cooperative relation/ties between a number of institutions and

~persons in order to achieve its objective as mentioned Protection of Human Rights Act, 1993.

In order to effectively implement human rights norms, an impartial, politically independent, persistant and organised concern is required. The National Human Rights Commission is no doubt an independent and autonomous body and is not subservient to any official or agency. But as far as the functioning of a Governmental institution is concerned the concept of independence/autonomy can never mean a total lack of connection with the State. The Protection of Human Rights Act, 1993, accordingly prescribes certain links with the States and the limits within which the NHRC has, and would continue to act with the determination to create a culture of human rights throughout the country.

4.1 COORDINATION BETWEEN CENTRAL/ STATE GOVERNMENTS

The creation of the NHRC itself is a governmental response to the long-standing demand within the country as well as pressure from the international bodies. The very basis of its formation is backed by a number of discussions and meetings with the Central Ministers and Chief Ministers of different States. The mandate of the Commissions, however, envisages that it has to investigate the complaints of human rights violation with the help of State Government officials (police) and investigation agencies, as the case may be. And, accordingly, it makes its recommendations to the concerned violating authority/agency whose task is to enforce it. As far as State Human Rights Commissions are concerned, every State is supposed to establish the same as per its own legislation and resources.

4.2 STATE HUMAN RIGHTS COMMISSIONS, HUMAN RIGHTS COURTS AND DISTRICT COMMITTEES

The Protection of Human Rights Act, 1993, provides for a National Human Rights Commission and State Human Rights

~Commissions. There is no specific mention in the statute on the setting-up of commissions at the level of Union Territories. The presumption could be that the Commission at the national level will serve the Union Territories as well. However, this militates against the concept of a decentralised grievance redressal machinery through State Commissions.1 The phenomenal increase in the number of complaints

received by the Commission during the last two-and-a-half years, as also the number of requests from NGOs, academic institutions and others seeking the presence and participation of the Commission in different programmes have emphasized the need for setting up, at the earliest, of State Human Rights Commissions. The State level Commission would accord quicker access to a decentralised complaints-redressal mechanism and would also help aggrieved parties save expenses which would otherwise be incurred from having to approach a single authority, located in Delhi, in a country as vast as India.2

The National Human Rights Commission, for its part has, therefore, continued to encourage this process and it may be noted that, by 31st March, 2001, State Human Rights Commissions had come into existent in West Bengal, Himachal Pradesh, Kerela, Maharashtra, Manipur, Rajasthan, Madhya Pradesh, Assam, Tamil Nadu, Punjab and Jammu and Kashmir. Certain newly termed states like Chhatisgarh, Uttaranchal and Jharkhand have formaly conveyed to the Commission that they would be setting up a State-level Commission at the earliest. The Government of Tripura has mentioned that the proposal to have a State Commission would be examined suitably, but it has added that the non-availability of resources was a major handicap.

Further, Human Rights Cells had been established in the States of Uttar Pradesh, Andhra Pradesh and Kerala, and in the Union Territories of Daman and Diu and Dadar and Nagar Haveli, and the National Capital Territory of Delhi.

~As far as State Human Rights. Courts are concerned, as envisaged in section 30 of the Act, certain States like Andhra Pradesh, Assam, Sikkim, Tamil Nadu and Uttar Pradesh, have already notified their willingness to do so. More States are expected to follow suit. The Commission is also in touch with the concerned High Courts with a view to making clear the precise nature of the offences to be tried in such courts and other details regarding the conduct of their business.

In addition to the provisions contained in the Statute, the district-level committees are to be created. The district-level committees will be headed by the District and Sessions Judge, and will comprise, in addition, the Chief Judicial District Magistrate, the Superintendant of Police and the Revenue Divisional Officer as members. Though the committees are purely official in nature, they can serve a most positive purpose. Thus, the Commission has accordingly recommended the setting-up of such committees in various States. In this connection, it is heartening to note that many States have already accepted, in principle, to create such district-level committees. The Government of Kerala has taken a leading role in this regard and has already established such committees. The Commission has recommended that other states should try to follow the Kerala example. District-level committees have been established in Andhra Pradesh, Chandigarh and in Andaman and Nicobar Islands. Other States and union territories are also underway in this process.

As the Commission is keen to follow the human rights situation in all regions of the country closely, to act preventively, to redress grievanes speedily, and to promote a culture of human rights throughout India, it has been examining ways and means in which it can best decentralise its own administrative machinery. It has thus taken a decision in principle to establish regional offices that could serve the above-mentioned purposes, strengthen liaison with the State Government/Union Territories and also help establishment of the Circuit Benches of the Commission which could result in the speedier disposal of the cases filed before it.

~As regards the mechanism for the redressal of human rights grievances in union territories, the Ministry of Home Affairs had taken the position that the best way of proceeding may be through the extention of the jurisdiction of the State Commissions of neighbouring States into the adjoining Union Territories, as has been done in respect of High Courts. However, as many States have themselves been slow in setting up Commissions, the National Commission would recommend that, during the interim period, the Home Ministry should advise the Union Territory to establish Human Rights Cells, as has been the case in Daman Diu and Dadar and Nagar Haveli.

4.3 CO-ORDINATION WITH INTER-GOVERNMENTAL ORGANISATIONS

The National Human Rights Commission is also well aware of the fact that its effectiveness can be

increased by drawing on the resources and expertise available within the inter-governmental organisations. Inter-governmental organisations such as the United Nations, the UN Commission on Human Rights and others are very useful in facilitating contacts between national institutions. The opportunity to interact with other similar organisation on the specific purpose of exchanging information and experience can be useful for strengthening its own purpose. Towards this end, the NHRC was represented at the 50th, 51st and 52nd Annual Sessions of the UN Commission on Human Rights held in Geneva. On another occassion the Commission was also represented at a UN workshop held in Kathmandu, Nepal, on “Regional Arrangements for the Promotion and Protection of Human Rights in Asian and Pacific Regions”. A member of the Commission represented India at the 4th United Nations Conference on Women held in Beijing. In March, 1996, a member of the Commission, Justice V.S. Malimath was nominated by the Secretary-General of the United Nations to serve as a member of a fact-finding mission to Nigeria, to examine and report two issues of concern to the international community, namely (i) the

~validity of judicial procedure of trail of Ken Sarowiwa and others in the context of the Various international human rights institutions to which Nigeria is a party, and of relevant Nigerian Law; and (it) Plans of the Government of Nigeria to implement its declared commitment to restore the country to civilian democratic rule. The National Human Rights Commission is also a member of the Coordinating Committee of National Institutions of Human Rights and by virtue of its status as a member, fortunately, the first Chairman of the NHRC had been chosen to be the Chairperson of the Coordinating Committee, till the time the proper rules were drafted.

4.4 CO-ORDINATION BETWEEN NATIONAL INSTITUTIONS

The phenomenal growth of national institutions in recent years has led to a significant expansion in opportunities for inter-institutional cooperation and collaboration. Many cooperative efforts have been undertaken to facilitate the position of assistance from a relatively strong, developed insititution to a newer or smaller one. Many national institutions often share similar goals and cooperation is often a mutually reinforcing experience. National institutions may decide to cooperate on a promotional level by conducting joint activities and collaborations in study and research projects on topics of mutual concern. Information exchange is another mechanism of practical cooperation which can be implemented in a number of different ways. Through this process, they may decide to convene regular meetings in order to compare experience and methods of work to exchange reports and publications and perhaps even to address issues of common interests. Two or more institutions may decide to develop a programme of regular staff exchange in an effort to institutionalise cooperation and reinforce the flow of information.

The National Human Rights Commission is keen to see close cooperation between national institutions with the purpose of promoting and protecting human rights. In fact, it has been

~interacting with a number of national institutions since its inception. The main among these are the National Institutions of Canada, Australia, Pakistan and the Philipines. Following highlevel contacts between the Canadian Human Rights Commission and the NHRC of India, a memorandum of understanding was signed between the two, providing for staff exchange, the sharing of information and documentation, training materials, and the development of stronger links between human rights centres in their respective universities which would enhance the quality of research and study in the two countries. In addition, the Canadian and Indian Human Rights Commissions recently conducted a useful seminar on ‘Human Rights Education’ in February, 1996, in New Delhi. The Indian NHRC was also represented at the second and third international workshops of national institutions held in Tunis in 1993, and in Manila in 1994, respectively. Besides this, the NHRC was also represented at the seminar on “Principal Development at the International Level relating to National Human Rights Institutions” during 23rd and 25th April, 1996, held in Ulaan Baatur, Mongolia.

4.5 CONTACTS WITH STATESMEN/DELEGATES FROM FOREIGN COUNTRIES

In a global climate of heightened awareness of human rights, it has come to as no surprise to the Commission that its formation and activities should be the subject of considerable interest both at home and abroad.

The Commission welcomes this by taking into account that a country like India, with its open and democratic society, its pluralism, its commitments to the rule of law, the Universal Declaration of Human Rights and its own Constitution should be the vanguard of worldwide movement for human rights.

The Commission has, therefore, received a steady stream of eminent visitors, both from the diplomatic corps stationed in Delhi and from governmental, parliamentary, judicial and nongovernmental organisations located abroad. It welcomes these

~Contacts and has, on its part, encouraged them in various ways. The commission believes, that it is important that the country should be open to visitors interested in human rights matters, as such rights are best protected through the policy of transparancy. A knowledge of realities on the ground is also essential to the correct application of a problem in the field of human rights, as indeed in any other field. In the due course of time, the Commission has received a number of distinguished visitors from abroad. These include more than one delegation of parliamentarians from U.K. and Germany, representatives from the United States Congress, from the Standing Committee of Foreign Affairs of the Netherlands, from the Liberal Party of Belgium and European Parliament, to name a few, The discussions thus far have, by and large, centered on the powers and functions of the Commission, its status, activities and procedures, and on certain issues that are central to the preception of the state of human rights in India. During 1995-96, the Commission had occasion to hold extensive discussions with Jose Ayala Lasso, the UN High Commissioner for Human Rights, during his visit to India and Ibrahima Fall, Assistant Secretary-General in Geneva. Discussions were also held between the Commission and various groups, particularly, parliamentary, judicial and non-governmental groups from U.K. and European Parliament which visited India. The Commission was especially happy to receive a delegation of the UN Committee on the Rights of Child when it visited India under the auspices of UNICEF. The Commission was also happy to receive a delegation from the Human Rights Commission of Pakistan.

On various occassions, individual members of the Commission attended international meetings and discussion of interest and consequence to the Commission. First Chairperson of the Commission Justice R.N. Misra also visited North America, U.K. and UN office in Geneva, in connection with the work of the Commission. Similarly, the Secretary-General of the Commission Mr. R.V. Pillai participated in a seminar on “The role of the human rights community in conflict resolution (South Asia)”

~Ambassador of Finland; H.E. Mr. Claude Blanchemaison, Ambassador of France; H.E. Manuel Marcelo Curto, Ambassador of Portugal; Mr. Michael Barrie Me Geever, Ambassador-Head of delegation of the European Commission to India, Nepal and Bhutan and Ms. Ute Banerjea-Komers, Minister, German Embassy.

The former Chief Justice of Bangladesh and Chairman, Law Commission, Bangladesh, Mr. Justice Kemaluddin Hossain called on the Commission on 1 November 1999. He was on a visit to India under the Distinguished Visitors Programme of the Indian Council for Cultural Relations. The Minister Counsellor of the Royal Danish Embassy in India, Mr. Jes C. Boye-Moller held discussions in the Commission on 3 November 1999. The Commission also interacted with Mr. Michael Lewis Abbott, QC, Chairman, Australia-India Council. The British Minster of State for Commonwealth, Mr. Peter Hain visited the Commission on 18 November 1999, and held wide-ranging discussions with it. A team of the Labour Party Parliamentarians from UK called on the Chairperson on 26 February 2000.

4.6 COOPERATION WITH EXTERNAL NGOs

The Commission continues to have contact both at home and abroad with a number of non-governmental organisations concerned with human rights. These include Amnesty International, Human Rights Watch (Asia), the International Committee of the Jurists, etc., which welcomed and encouraged their efforts in the humanitarian field. The Commission was also represented at a meeting in Hongkong organised by an NGO, the Asian Human Rights Commission, which discussed various issues relating to the statutes of the National Commission. The Commission is of the view that its participation in meeting of human rights groups and activists can be of great value to the country and to those who wish to learn of the

situation in India, and indeed to all those engaged in furthering the cause of human rights world-wide.

4.7 COORDINATION BETWEEN INDIAN NGOs

The exceptional role of non-governmental organisations (NGOs) in furthering human rights is given appropriate and special recognition in the Act. Section 12 (i) of the Act expressly charges the Commission to “encourage the efforts of non-governmental organisations and institutions working in the field of human rights”. This is a responsibility which the Commission readily assumes, for the cause has much to gain both from the practical help and from the constructive criticism that NGOs and the

~organised by the Friedrich Neumann Foundation in Strasbourg, France in December, 1995. Both the Secretary-General and Director-General (investigation) paid one-week visit to the United Kingdom to study questions relating to prision administration and reform. All these contacts have resulted in valuable exchange of views between high dignitaries in connection with the purpose of strengthening and protecting human rights institutions. The Commission looks forward to further interaction in the period ahead.

Mr. David Spring, Director General of the Canadian International Development Agency (CIDA) visited the Commission on 5 July 1999. India’s Deputy Permanent Representative Designate to the UN, Mr. Sharat Sabharwal, called on the Secretary General on 15 July 1999. A delegation from South African Human Rights Commission (SAHRC) led by Deputy Chairperson, Ms. Shirley Mabusela, visited the Commission on 26 July 1999. the SAHRC was in process of establishing a focal point for children s right within their Commission and this study tour was to help them gain an understanding of related issues in India.

Dr. David Vayley, Dean, School of Criminal Justice of the State University of New York, Albany, visited the Commission on 13 September 1999 and gave a presentation about police reforms. He appreciated the steps being taken in India to give more power to civil society and to hold both politicians and public servants accountable for their actions. He welcomed the efforts of the Commission in bringing about systemic changes.

The Chairperson of the International Advisory Commission of Commonwealth Human Rights Initiative, Ms. Margaret Renolds, had a meeting with the Chairperson, Members and the senior officials of the Commission on 28 September 1999. She briefed the Commission about the human rights situation in Australia and the current issues in the human rights discourse there.

Dr. Gemuh E. Akuchu, Executive Secretary of the National Commission on Human Rights and Freedom, Cameroon visited the Commission from 28 September 1999 to 5 October 1999. The Commission arranged for his interaction with the National Commissions for SCs/STs, Minorities and Women. He also visited the Punjab State Human Rights Commission.

The European Union Troika visited the Commission on 11 October 1999. The team included H.E. Benjamin Bassin,

~Commission can baring to bear in their mutual interaction and growing relationship.4

There are three areas in which NGOs can be of particular assistance to the Commission. Firstly, because of their grass-root contacts, they can most effectively identify human rights violations, articulate them and seek redress. The Commission sees a most positive role for NGOs in bringing complaints to its notice. Secondly, given the rapport that they have established with the public at large, the assistance and cooperation of the NGOs can be of great value in the investigation of the more serious cases that come to be looked into by the Commission through its investigative staff — a group that will be put together with great care as to their sensitivity to human rights considerations. There can be instances when the Commission, in accordance with its Regulation No. 18, in addition to using its investigative staff, may choose 10 associate NGOs actively in investigation work. Thirdly, the high level of expertise of individual NGOs in specific areas of human rights work can be a source of great benefit to the Commission as it studies and makes recommendations on specific issues and problems. There would thus be a role for NGOs

in the research and study programmes of the Commission as they develop.5

The Commission has already had the benefit of interacting with a large number of NGOs — both Indian and foreign. Some of them have already brought complaints that are under consideration of the Commission. Yet others have already helped the Commission by their reports and publication and by their vigilance in the defence of human rights.

In a country as large and as diverse as India, there is always the problem of being unaware, in Delhi, of the extent of talent and commitment amongst groups and individuals who are often far removed from the nation’s capital, but are heroic in their devotion to principles and often in their accomplishments. The Commission is seeking to prepare an appropriate national register of NGOs working in the field of human rights both in order to

~develop practical links with them and between them, if they so choose. In undertaking this task, the Commission is seeking advice from prominent human rights activists and NGOs that have already established a repute for probity and commitment.6

The responsibilities entrusted to the Commission under the Protection of Human Rights Act, 1993, cannot be adequately discharged without the development of close and cooperative ties between the Commission and non-governmental organizations, which are regarded as the eyes and ears of the people of India. For the Commission, it is not just a statutory obligation, under section 12(i) of the Act, “to encourage the efforts of non-govermental organizations and institutions working in the field of human rights”, but a necessity to do so, if its own efforts are to be well-informed and in tune with the deeper aspirations of the country — aspirations that find expression in the courage and idealism of many non-governmental organizations. As the Commission noted in its first report, the cause of human rights has much to gain both from the practical help and from the constructive criticism that NGOs and the Commission can bring to bear in their mutual interaction and growing relationship. To this end the Commission has, from time to time, invited leading human rights activists and NGO representatives for discussions and advice and sought their help in practical ways. In addition, in every visit to a State, the Commission has made it a point to benefit from the experience and knowledge of NGOs, whose contacts at the “grass-roots” level give strength and meaning to the human rights movements where it matters most.

In the development of this working relationship, the Commission is particularly grateful to NGOs for coming forward with complaints regarding violations of human rights. Analysis of the complaints received by the Commission indicates that over 200 NGOs were involved in the submission of such complaints — and that these complaints were received from all parts of the country. This speaks for itself concerning the range of NGOs in the country and of their interests, simultaneously, in rectifying wrongs

~and in using the mechanisms of the Commission. The Commission thus is heartened by this effort.

Further, in accordance with the provisions of its Regulation No. 18, the Commission has made a beginning, to associate NGOs with the enquiry of complaints. For example, in a case alleging illegal detention and torture by the Kerala Police in Muringoor, Chalakudy, the Commission has requested an NGO in Kochi to help enquire into the matter and report to the Commission and to the State. NGOs have boldly come forward with evidence of wrong-doing in relation to specific complaints addressed to the Commission. Further, the Commission has, on more than one occasion, turned to Legal Aid and Advice Boards to ascertain facts and make enquires on its own behalf. Examples of the latter include recourse to the Tamil Nadu Legal Aid and Advice Board, which has looked into allegations of police misconduct in Velanthangal village of VRP District on the basis of a complaint brought by an NGO, and the steps taken by the Chairman, U.P. State Legal Aid and Advice Board, to enquire into a particularly tragic and complex case having to do with the worngful detention, in the Agra Mental Asylum, of a sane person for a period of nearly three decades, during which time he was stripped of his property rights by near relatives.

There are many ways in which the relationship of the Commission with NGOs can be further strengthened. As the Commission increasingly begins to concentrate on specific human rights problems, for

example, child labour or bonded labour, it is normal that it should turn to NGOs having specialized knowledge in such fields. In the course of the coming years, the Commission has plans to initiate a series of action-oriented studies relating to key human rights problems facing the country. The mechanisms that it will set up for conducting such studies may well require the involvement of NGOs for their ideas, experience and research capability.

In order to derive a fuller awareness of the range and capacities of NGOs in the country, the Commission, in its very first

~Newsletter of October, 1994, appealed to them for information on their respective organizations, their membership, major activities, addresses, fax numbers, etc-. A number of NGOs have responded and have provided such information. The details of over 200 NGOs specializing in human rights having been fed into the computerized list that the Commission is maintaining Such data can be of increasing help to the Commission as it seeks the association of NGOs, for instance, in the making of inquiries into the complaints that are received from various parts of the country.

In the period ahead, the Commission would like to further rationalize and expand its arrangements of cooperation with NGOs. It firmly believes that the promotion and protection of human rights require the courage and commitment that NGOs bring to their endeavours and it is for this reason that the Commission has consistently taken the position that the country has much to gain by encouraging their efforts, whether the NGOs be national or foreign.

It is for the same reason that the Commission has participated with enthusiasm in numerous events, discussions and workshops that NGOs have organized around the country.7

The Commission has taken a measured step to coordinate NGOs with its office for furtherence of human rights cause. The form on the subsequent pages shows this purpose.

4.8 CONCLUDING REMARKS

NHRC s co-ordination with a number of governmental and non-governmental organisations and contacts with various high dignitaries, visitors and foreign delegates have practically enhanced its status and prestige, both at home and abroad. Protection of human rights, however, is a concern of everybody. It requires concerted effort of all as a government official, parliamentarian, human rights activist, lawyer, journalist, student, teacher, social worker and the like. Their concerted and continued efforts in terms of commitment, criticisms and suggestions can serve the

~FORM FOR ENGUSTING NGOs WITH NHRC PART-A

1. Name of the NGO:

Address :

District:

State : Pin :

2. Whether Registered or not: Yes / No

If yes, No. & date

Regd. with Law under which regd.*

3. Name and address of office bearers** :

President/Patron Secy./JS Treasurer

Ph. (O) Ph. (O) Ph. (O)

(R) (R) (R)

4. Name and address of person authorized to represent/ correspond :

Name :

Designation :

Address : Ph. (O) (R)

5. Objective of NGO : Area/activity presently engaged in

6. Extent of Annual income and expenditure

Income Expenditure

Rs. Rs.

PART-B

Particulars about activities in Human Rights related field

7. Specific activity the NGO is engaged in or proposes to engage in, to further the cause of human rights :

~8. If any outstanding contribution is made by the NGO in the field of Human Rights, give brief particulars :

9. Has the NGO undertaken :

(a) Investigation in regard to violation of human rights? If so, please furnish particulars.

(b) Research in any field concerning human rights. If so, furnish particulars.

(c) Any other work related to Human Rights. If so, give particulars.

10. Please indicate in precise terms, the field the NGO is particularly interested in, and the areas in which it wishes to cooperate with NHRC in the promotion of human rights.

Note :

Copy of the Constitution/Memorandum of Association/Bye Laws to be enclosed.

As and when there is change in the Office bearers, or other information furnished above, the same may be communicated in detail within two weeks of the change.

~best purpose of strengthening the organisation in a most positive and constructive way, so that the organisation can be a more reliable and accessible one, bridging the gap between governments on the one hand and the non-governmental organisations on the other.

NOTES

1. See Annual Report (1994-95) of the NHRC, pp. 28-29.

2. Gurbax Singh, A Commentry on the Protection of Human Rights Act 1993. Jaipur: Dominion Law Depot, 1996, p. 325.

3. Human Rights Newsletter, vol. 4., no. 10, October, 1997.

4. See Annual Report (1994-95) of the NHRC, p. 11.

5. Gurbax Singh, op. cit., p. 249.

6. Annual Report (1993-94) of the NHRC, pp. 25-26.

7. See Annual Report (1994-95) of the NHRC, pp. 26-28.

~Summary and Conclusion

“Human rights have to do with the all-round development of the human person in harmony with that of his fellow beings in the totality of the relations in a society. The concept of human rights is necessarily evolving in nature, a space with the evolution of human civilisation in the context of a changing social, political, economic and cultural milieu. It is, therefore, a daunting task”1 of the State to create societal conditions which will enable a person to nourish his best self in the society.

Rights and duties are co-related. They are co-related in the sense that a person’s obligation becomes conditional for the enjoyment of the rights of others. The concept of human rights centres around individual, whose survival and existence would be the main concern of all categories of rights, be it social, political, economic or cultural. Rights are also regarded as universal. Impresctible, indivisible and interdependent. The indivisibility of rights is established by the fact that the socio-economic rights are prerequisite to make civil and political rights meaningful. Human rights can be best protected and guaranteed in a democratic polity, in particular which is characterised by certain institutions like Constitution, rule of law, independent and impartial judiciary, popular legislature, multi-party system, free press, pressure groups, various civil and democratic rights groups, etc. All these features embody the principles of a liberal democracy, whereby the rights of citizens are legally and largely ensured.

In recent years, however, the question of human rights has assumed global significance, particularly after the end of the Cold

~War and thereby the democratisation of World order. A genuine concern is witnessed in favour of the enforcement of human rights norms, and also the establishment of various governmental and non-governmental agencies for the promotion and protection of such norms. In fact, prescription of human rights norms find expression when it is enforced by an independent, competent and impartial authority. Though upholding and promoting human rights is a responsibility of every individual, every group, every institution and every organ in the society, the practical task of protection and promotion human rights is primarily a national one because State is known as the sole guardian, guaranteer and protector of human rights. Towards this end every country has its proper institutions supervising the relation between individuals and the authority. In recent years many countries have established national institutions with the sole purpose of protecting and promoting human rights; the specific tasks of such institutions may vary considerably from country to country but they share a common purpose, and for this reason they are referred to collectively as ‘National institutions for the promotion and protection of human rights’. These institutions, have a very unique role in translating international human rights standards as mentioned in the Universal Declaration of Human Rights and other international treaties on human rights and giving them an indigenous flavour and acceptability without diluting their essential universal characteristics.

India is bestowed with all principles and institutions of democratic governance and is also a signatory to the UDHR and other international covenants on human rights, which fortify India’s commitment to and respect for human rights. Recently, it has taken a significant initiative for the protection and promotion of human rights by enacting the Protection of Human -Rights Act, 1993, which gives a

concrete shape to the National Human Rights Commission.

National Human Rights Commission has been constituted under a legislative Act with a view to protecting individuals against discrimination and with the protection of civil and other

~human rights. Hence the precise function and powers of the Commission have been defined in the concerned Act. Inquiry into complaints, review of existing laws, implementation of treaties and other international instruments on human rights, improving of jail conditions, undertaking and promoting research in the field of human rights, encourging the efforts of the NGOs working on human rights and creating awareness among various sections of the society are some of the important functions of this new institution.

The general skepticism among the intelligentsia about the very basis of the formation of the NHRC as a response from external pressure appears unfounded. Because the internal demand and pressure from within the country also necessiated its establishment. It is undeniable that the pressure from the donor countries like USA, UK, Germany and Sweden and donor agencies like World Bank and the International Monetary Fund (IMF) to show India’s good human rights record also played a crucial role in the formation of the NHRC. But India’s international accountability and its commitment to the UDHR is also equally manifested through this initiative.

The status of the NHRC is not confined to its statute only, rather it has its constitutional validity under the Commission of Inquiry Act, 1952. The status of the Commission is also defined in international law, particularly in ‘Paris Principle of 1991’ and many international workshops on National Institutions for the Promotion and Protection of Human Rights.

The moot point is to explore as to how far the recommendatory powers of the NHRC can effectively address the question of human rights violations in a complex and plural society like India. The recommendations, made after investigations of the NHRC, even though not binding, are a sort of guiding principles for improving basic standards of human rights by the respective agencies of the government. The recommendations, through publicity, acquire immense social, political and administrative value.

We have attempted to show that the NHRC, which initially received widespread criticism, as a ‘toothless tiger’ or a ‘big post

~office’, has carried out an admirable job. We empirically found that 95% of the NHRCs recommendations have been accepted by the concerned public authorities. This suggests how the NHRC has gained credibility and acceptance in the country and abroad. NHRCs active campaign for repealing of TADA, the draconian and undemocratic piece of legislation, is a remarkable contribution towards creating awareness for the protection of human rights. As a watchdog body, the NHRC has so far done a credible job not only in promoting human rights in the country, but also in raising the image of the nation in the community of States. The initial skepticism that the NHRC will end up as another government-type institution with its usual quota of lethargy and indifference has withered away, as the Commission has successfully maintained the image of objectivity, impartiality and integrity and, in fact, has assured the role of a model institution that will act as catalyst keeping the executive and legislative wings of the Government to stick to their tasks. Indeed, the NHRC has become the focal point for enforcement of the new generation of human rights while protecting the basic social order, and the integrity and security of the State. However, it can not be said that the Commission has achieved something miraculous or extraordinary in the field of promoting and protecting human rights ethos of our country, or that grievances of violations have ceased to occur. But one can honestly agree upon the point that it has brought a fresh hope to those who seek redressal of their grievances. And there is an awareness now, as perhaps never before, of the meaning of human rights in India.

The NHRCs co-operation with a number of governmental and non-governmental organisations and contacts with various high dignitaries, visitors and foreign delegates have practically enhanced its status and prestige; thanks to Justice Ranganath Misra, the first Chairman of the Commission, for the dynamism of commitment with which he has projected the image of the Commission and established high

legitimacy for the Commission in the minds not only of the people in India but also abroad. This example has been admirably continued by his successor Justice M.N. Venkatachalliah.

~Protection of human rights, however, is a matter of everybody’s concern. It requires concerted effort of all — government officials, parliamentarians, human rights activists, lawyers, journalists, students, teachers, social workers and the like; their concerted and continued effort in terms of criticisms and suggestions can serve the best purpose of strengthening the organisation in a most positive and constructive way, so that the organisation can be a more reliable and accesssible one, bridging the gap between governments on the one hand and the non-governmental organisations on the other.

Some of the shortcomings of the Protection of Human Rights Act need to be summarised at this point.

The human rights violations occur both in the domain of State and civil society. The unequal structure of dominance and exploitation give scope for violations by organised groups like terrorists and militants. The Act confines itself to addresssing the human rights violation only by the State institutions. It ignores human rights violation at various other levels, outside the domain of the State. The Act can be more effective if its area of concern will appropriately focuss on this point.

The provision of the Act fixed a one-year period as the duration of filing of complaint. With the series of socio-cultural factors impeding the immediate filing of complaints, it would be more realistic, if the NHRC entertains cases where there has been reasonable and purposeful delay in the making of the complaint.

Regarding the armed forces, the Act should enlarge NHRC’s juridiction to inquire into violation of human rights when they indulge in excesses.

As far as the functioning of the NHRC is concerned, “there are complaints from some NGOs that it has not lived upto the principle of transparency, as it does not give NGOs full access to its activities. A criticism one could offer is that NHRC is increasing by becoming bureaucratic in terms of the internal structure with its personnel chiefly drawn from the Government only. One may also fault NHRC’s bureaucratic approach to evolving human

~rights syllabi for teaching purposes. The Commission should, but does not seem to, offer assistance on the effective functioning of other national institutions like the National Commission on Minorities, on Women, and the Scheduled Castes and Scheduled Tribes. Indeed, part of the blame on this count should rest with the Chairpersons of these Commissions themselves who are exofficio members of NHRC.”2

This study has attempted to give a panaromic view of the establishment, structure and functioning of the NHRC. However, for better functioning and future prospects of the NHRC certain suggestions can be made:

(i) It is desirable to have the NHRC instituted by a constitutional amendment because such an effort would bring about greater consensus among political parties. Moreover a constitutional body whose independence from the executive is adequately guranteed, would inspire greater public confidence.

(ii) The membership of the Commission should be broad-based and should include persons who are human rights activists, particularly from non-governmental organisations, because they have been working since long for the cause of protection and promotion of human rights in India. Members of the NGOs are also important because due to their grass-root contacts, they have a practical knowledge and reality of human rights conditions in the country.

(iii) As the promotion of human rights literacy, and research on human rights are the two important objectives of the Commission, experienced academicians should be included in the membership of the Commission.

(iv) Eminent journalists and constitutional experts should be inducted into the Commission to strengthen its work and better coordination.

(v) Trade Union leaders should be given the status of being honorary members of the Commission so that the workers

~ rights are maintained and their problems are discussed appropriately.

(vi) There is an urgent need to set up a National Academy on Human Rights for the technical training and knowledge of the persons who would be recruited as the personnel of the NHRC, SHRC and District Committees, as and when established on the lines of the other national academies like National Police Academy and National Institute of Educational Planning and Administration.

(vii) A National University on Human Rights needs to be established to promote the study and research on human rights similar to the National Law School at Bangalore.’

(viii) The NHRC should undertake more effectively the stupendous task of sensitising the judicary, the bureaucracy, the police, and other government officials about the norms and principles of human rights.

(ix) The establishment of State Human Rights Commission, Human Rights Courts and District Committees in respective States has to be in consultation with the members of the NHRC, as well as the leading human rights activists and members of the NGO community in their respective States.

(x) The NHRC staff should be imparted mandatory course on human rights so as to get technical knowledge and information on human rights.

(xi) Regional offices of the NHRC which would act as eyes and ears at zonal levels have to be established throught-out the country to facilitate immediate action and more direct supervision.

(xii) In the field of human rights South Asia shows little homogeneity and there are no regional treaties on human rights for South Asia. In the wake of intensive interaction of the NHRC with parallel institutions from various regions in general and South Asian zone in particular, it is more appropriate time to formulate

~strategic means to evolve a South Asian commission on human rights to coordinate the activities of the National institutions on human rights.

(xiii) A survey on the NHRC’s work should be conducted in the sensitive areas as well as jail premises so as to get information about the existence and functioning and accessibility of the Commission since its inception.

(xiv) The regular feature of the NHRC, viz., ‘Human Rights News Letter’, presently published in English and Hindi needs to be published in all major vernacular languages so that the objective of human rights literacy may reach at the various sections of the society.

(xv) Efforts should be made for the exchange of staff of the NHRC with that of similar bodies of the foreign countries so as to improve the administrative and technical knowledge of the functioning of the Commission.

(xvi) The NHRC should begin a monthly “Human Rights Chronicle”, and also encourage telefilms on the current problems, i.e., child labour, bonded labour, female infanticide, child prostitution, etc., so as to highlight and promote discussions and disseminations of ideas for improving the state of affairs.

There is every justification for setting up of the NHRC on the ground that it is entrusted with the

task of creating a culture of human rights. It is feared that the juridiction of the NHRC would come into conflict with the courts and other legal bodies working for the protection of human rights. But, the NHRC entertains only those cases which are not referred to any judicial body or existing constitutional or statutary commission meant for protecting human rights, the NHRC being a specialised machinery recommends ways and means of promoting human rights culture, which should inform and educate all people and all institutions of public life.

The increasing number of complaints, budget, scope and expanse of activities of the NHRC, since its inception in October

~1993, constitute an ample evidence of its survival and sustained growth. This also signifies spreading of awareness of human rights throughout the country and a reflection of the increasing confidence of people in the Commission. But the creation of human rights culture is a stupendous task which can not be undertaken by the NHRC alone. Human conduct has to be regulated, appropriate social ethos has to be developed, and the thinking process at every level has to be motivated so as to generate the appropriate spirit of ‘live and let live”; sharing of social benefits and disadvantages in equal porportions and ultimately legislations for ensuring the culture of human rights has to prevail in society.

The NHRC, endowed with sufficient funds and an appropriate constitutional status, would be able to play a befitting role as a moral authority for promoting human rights in our country. By receiving support from human rights activists, voluntary organisations, human rights groups and other NGOs, and all those interested in upholding and promoting the cause of human rights, the NHRC could assume a leading role in fulfilling its mandate and objectives. With the continued collective effort and cooperation with the NHRC in terms of commitment, criticisms and constructive suggestions from various quarters, let us hope that “the divine gift of an innocent smile may be restored to every human face”3.

NOTES

1. V.S. Mani, Human Rights in India - An Overview, Institute for World Congress on Human Rights (IWCOHR Occasional Paper No. 4, January 1997), p. 5.

2. Ibid, p. 25.

3. Human Rights Newsletter, Vol. I., No. 1, October, 1994.

~Appendix I

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

PREAMBLE . . .

Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Where as disregard and contempt for human rights resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Where as it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Where as it is essential to promote the development of friendly relations between nations,

Where as the people of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and

women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

~Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, therefore,

THE GENERAL ASSEMBLY Proclaims

THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1.

All human beings are born free and equal in dignity and human rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Further, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent trust, non-self-government or under any other limitation of sovereignty.

~Article 3.

Everyone has the right to life, liberty and security of person.

Article 4.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the

~determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.

(1) Everyone has the right to freedom and residence within the borders of each State.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts country to the purposes and principles of the United Nations.

~Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have

the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of the society and is entitled to protection by society and the State.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and import information and ideas through any media and regardless of frontiers.

~Article 20.

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence

~worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

~(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting, from any scientific, literary or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and

freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

~Appendix II

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

(10 OF 1994)

[8th January, 1994]

An Act to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows:-

Chapter I

Preliminary

1. Short title, extent and commencement

(1) This Act may be called the Protection of Human Rights Act, 1993.

(2) It extends to the whole of India:

Provided that it shall apply to the State of Jammu and Kashmir only in so far as it pertains to the matters relatable to any of the entries enumerated in List I or III in the Seventh Schedule to the Constitution as applicable to that State.

~(3) It shall be deemed to have come into force on the 28th day of September, 1993.

2. Definitions

(1) In this Act, unless the context otherwise requires.

(a) “armed forces” means the naval, military and air force and includes any other armed forces of the Union.

(b) ‘‘Chairperson” means the Chairperson of the Commissionor of the State Commission, as the case may be;

(c) “Commission” means the National Human Rights Commission constituted under section 3;

(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;

(e) “Human Rights Court” means the Human Rights Court specified under section 30;

(f) “International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966;

(g) “Member” means a Member of the Commission or of the State Commission, as the case may be, and includes the Chairperson;

(h) “National Commission for Minorities” means the National Commission for Minorities constituted under section 3 of the National Commission for Minorities Act, 1992; 19 OF 1992

(i) “National Commission for the Scheduled Castes and Scheduled Tribes” means the National Commission for

~the Scheduled Castes and Scheduled Tribes referred to in article 338 of the Constitution;

(j) “National Commission for Women” means the National Commission for Women constituted under section 3 of the National Commission for Women Act, 1990; 20 OF 1990.

(k) “Notification” means a notification published in the official Gazette;

(1) “Prescribed” means prescribed by rules made under this Act;

(m) “Public servant” shall have the meaning assigned to it in section 21 of the Indian Penal Code;

(n) “State Commission” means a State Human Rights Commission constituted under section 21.

(2) Any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to a corresponding law, if any, in force in that State.

Chapter II

The National Human Rights Commission

3. Constitution of a National Human Rights Commission

(1) The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

(2) The Commission shall consist of:

(a) a Chairperson who has been a Chief Justice of the Supreme Court;

(b) one member who is or has been, a judge of the Supreme Court;

~(c) one Member who is, or has been, the Chief Justice of a High Court;

(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

(3) The Chairpersons of the National Commission for Minorities, the National Commission for the

Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.

(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.

(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.

4. Appointment of Chairperson and other

Members

(1) The Chairperson and other Members shall be appointed by the President by warrant under his hand and seal.

Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a Committee consisting of

(a) the Prime Minister Chairperson;

(b) Speaker of the House of the People member;

(c) Minister in-charge of the Ministry of Home Affairs in the Government of India member;

(d) Leader of the Opposition in the House of the People

member;

~(e) Leader of the Opposition in the Council of States

member;

(f) Deputy Chairman of the Council of States member;

Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.

(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee.

5. Removal of a Member of the Commission

(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the Commission shall only be removed from his office by order’ of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

(2) Not withstanding anything in sub-section (1), the President may be order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be-

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

(c) is until to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

~6.Term of office of Members

(1) A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier.

(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years.

Provided that no Member shall hold office after he has attained the age of seventy years.

(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of any State.

7. Member to act as Chairperson or to discharge his function in certain circumstances

(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the President may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy.

(2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, such one of the Members as the President may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

8. Terms and conditions of service of Members

The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed.

Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment.

~9. Vacancies, etc., not to invalidate the proceedings of the Commission

No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission.

10. Procedure to be regulated by the Commission

(1) The Commission shall meet at such time and place as the Chairperson may think fit.

(2) The Commission shall regulate its own procedure.

(3) All orders and decisions of the Commission shall be authenticated by the Secretary-General or any other officer of the Commission duly authorised by the Chairperson in this behalf.

11. Officers and other staff of the Commission

(1) The Central Government shall make available to the Commission:-

(a) an officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the Commission; and

(b) Such police and investigative staff under an office not below the rank of a Director General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the Commission.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.

(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as may be prescribed.

~Chapter III

Functions and Powers of the Commission

12. Functions of the Commission

The Commission shall perform all or any of the following function, namely:-

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of

(i) Violation of human rights or abetment thereof or

(ii) Negligence in the prevention of such violation, by a public servant.

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court’

(c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purpose of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon;

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights;

~(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

(j) such other functions as it may consider necessary for the promotion of human rights.

13. Powers relating to inquiries

(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commission for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and action 177 of the Indian Penal Code (45 of 1860).

~(3) The Commission or any other office, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document of take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable,

(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.

(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196, of the Indian Penal Code (45 of 1860), and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

14. Investigation

(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government as the case may be.

~(2) For the purpose of investigating into any matter pertaining to the inquiry; any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission:

(a) summon and enforce the attendance of any person and examine him;

(b) require the discovery and production of any document; and

(c) requisition any public record or copy thereof from any office.

(3) The provisions of section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

(4) The officer or agency whose services are utilised under sub-section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf.

(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the Commission may make such inqiry (including the examination of the person or persons who assisted in the investigation) as it thinks fit.

15. Statement made by persons Commission

No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prossicution

~for giving false evidence by such statement: Provided that the statement:

(a) is made in reply to the question which he is required by the Commission to answer; or

(b) is relevant to the subject matter of the inquiry.

16. Persons likely to be prejudicially affected to be heard

If, at any stage of the inquiry, the Commission:

(a) considers, it necessary to inquire into the conduct of any person; or

(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry;

It shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence:

Provided that nothing in this section shall apply where the credit of a witness is being impeached.

Chapter IV

Procedure

17. Inquiry into Complaints

The Commission while inquiring into complaints of violations of human rights may—

(i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it;

Provided that—

(a) if the information or report is not received within the time

~stipulated by the Commission, it may proceed to inquire into the complaint on its own;

(b) if, on receipt of information or, report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;

(ii) without prejudice to anything contained in clause (it), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.

18. Steps after inquiry

The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:

(1) where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person of persons;

(2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(3) recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;

(4) subject to the provisions of clause (5), provide a copy of the inquiry report to the petitioner or his representative;

~(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;

(6) the Commission shall publish its inquiry report together with the comments on the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.

19. Procedure with respect to armed forces

(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely;

(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;

(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to the Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.

(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.

~20. Annual and special reports of the commission

(1) The Commission shall submit an annual report to the Central Government and to the State Government concerned and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

(2) The Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any.

Chapter V

State Human Rights Commissions

21. Constitution of State Human Rights Commissions

(1) A State Government may constitute a body to be known

as the ..... (name of the State) Human Rights Commission to

exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter.

(2) The State Commission shall consist of-

(a) a Chairperson who has been a Chief Justice of a High Court;

(b) one Member who is, or has been, a Judge of a High Court;

(c) one Member who is, or has been, a district judge in the State;

(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

~(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him.

(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.

(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution.

Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:

Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures “List II and List III in the Seventh Schedule to the Constitution”, the words and figures “List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State

has power to make laws” had been substituted.

22. Appointment of Chairperson and other Members of State Commission

(1) The Chairperson and other Member shall be appointed by the Governor by warrant under his hand and seal;

Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of-

(a) the Chief Minister Chairperson

(b) Speaker of the Legislative Assembly Member

~(C) Minister in-charge of the Department of Home in the State Member

(d) Leader of the Opposition in the Legislative Assembly

Member

Provided further that where there is a Legislative Council in a State, the Chairperson of that Council and the Leader of the Opposition in that Council shall also be members of the Committee.

Provided also that no sitting, Judge of a High Court or a sitting district judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.

(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee.

23. Removal of a Member of the State Commission

(1) Subject to the provisions of sub-section (2), the Chairperson or any other member of the State Commission shall only be removed from his office by order of the president on the grouno of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

(2) Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or any other Member, as the case may be-

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

~(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

24. Term of office of Members of the State Commission

(1) A person appointed as Chairperson shall hold officer for a term of five years from the date on which he enters upon his officer or until he attains the age of seventy years, whichever is earlier.

(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years

Provided that no Member shall hold office after he has attained the age of seventy years.

(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India.

25. Member to act as Chairperson or to discharge his functions in certain circumstances

(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy.

(2) When the Chairperson is unable to discharge his function owing to absence on leave or otherwise, such one of the Members

~as the Governor may, by notification, authorise in this behalf, shall discharge the function of the Chairperson until the date on which the Chairperson resumes his duties.

26. Terms and conditions of service of Members of the State Commission

The salaries and allowances payable to, and other terms and conditions of service, of the Members shall be such as may be prescribed by the State Government.

Provided that neither the salary and allowances nor the other terms and conditions of service, of a Member shall be varied to his disadvantage after his appointment.

27. Officers and other staff of the State Commission

(1) The State Government shall make available to the Commission-

(a) an officer not below the rank of a Secretary to the State Government who shall be the Secretary of the State Commission; and

(b) such police and investigative staff under an officer not below the rank of an Inspector General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the State Commission.

(2) subject to such rules as may be made by the State Government in this behalf, the State Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.

(3) The salaries, allowances and conditions of service of the officers and other staff appoint under sub-section (2) shall be such as may be prescribed by the State Government.

~28. Annual and special reports of State Commission

(1) The State Commission shall submit an annual report to the State Government and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

(2) The State Government shall cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on the recommendations of the State Commission and the reasons for non-accepetance of the

recommendations, if any.

29. Application of certain provisions relating to National Human Rights Commission to State Commissions

The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect, subject to the following modification, namely:-

(a) references to “Commission” shall be constructed as references to “State Commission”;

(b) in section 10, in sub-section (3), for the word “Secretary-General”, the word “Secretary” shall be substituted;

(c) in section 12, clause (f) shall be omitted;

(d) in section 17, in clause (i), the words “Central Government or any” shall be omitted;

Chapter VI

Human Rights Courts

30. For the purpose of providing speedy trail of offences arising out of violation of human rights, the State Governam

~may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Courts to try the said offences.

Provided that nothing in this section shall appy if-

(a) a Court of Session is already specified as a special court; or

(b) a special court is already constituted, for such offences under any other law the time being in force

31. Special Public Prosecutor

For every Human Rights Court, the State Government shall, by notification, specify a Public Prosecutor of appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.

Chapter VII

Finance, Accounts and Audit

32. Grants by the Central Government

(1) The Central Government shall after due appropriation made by Parliament by law in this behalf, pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.

(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

33. Grants by the State Government

(1) The State Government shall, after due appropriation made by Legislature by law in this behalf,

pay to the State Commission by way of grants such sums of money as the State

~Government may think fit for being utilised for the purposes of this Act.

(2) The State Commission may spend such sums as it thinks fit for performing the functions under Chapter V, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

34. Accounts and audit

(1) The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The Accounts of the Commission shall be audited by the Comptroller and Auditor-General at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General.

(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government accounts and , in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

(4) The accounts of the Commission as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central Government by the Commission and the Central Government shall cause the audit report to be laid, as soon as may be after it is received, before each House of Parliament.

~35. Accounts and audit of State Commission

(1) The State Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the State Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the State Commission shall be audited by the Comptroller and Auditor-General at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the State Commission to the Comptroller and Auditor-General.

(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the accounts of the State Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the Comptroller and Auditor-General generrally has in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the State Commission.

(4) The accounts of the State Commission, as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the State Government by the State Commission and the State Government shall cause the audit report to be laid, as soon as may be after it is received, before the State Legislature.

Chapter VIII

Miscellaneous

36. Matters not subject to jurisdiction of the Commission

(1) The Commission shall not inquire into any matter which is pending before a State Commission or any other

~Commission duly constituted under any law for the time being in force.

(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.

37. Constitution of special investigation teams

Notwithstanding anything contained in any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, consisting of such police officers as it think necessary for purposes of investigation and prosecution of offences arising out of violations of human rights.

38. Protection of action taken in good faith

No suit or other legal proceeding shall lie against the Central Government, State Government, Commission, the State Commission or any Member thereof or any person acting under the direction either of the Central Government, State Government, Commission, or the State Commission in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made thereunder or in respect of the publication by or under the authority of the Central Government, State Government, Commission or the State Commission of any report, paper or proceedings.

39. Members and officers to be public servants

Every Member of the Commission, State Commission and every officer appointed or authorised by the Commission or the State Commission to exercise functions under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

40. Power of Central Government of make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.

~(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) the salaries and allowances and other terms and conditions of service of the Members under section 8;

(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 11;

(c) any other power of a civil court required to be prescribed under clauses (f) of sub-section (1) of section 13;

(d) the form in which the annual statement of accounts is to be prepared by the Commission under sub-section (1) of section 34; and

(e) any other matter which has to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

40. Power of State Government to make rules

(1) The State Government may, by notification, make rules to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) the salaries and allowances and other terms and conditions of service of the members under section 26;

~(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the State Commission and the salaries and allowances of officers and other staff under sub-section (1) of section 35;

(c) The form in which the annual statement of accounts is to be prepared under sub-section (1) of section 35.

(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

42. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty.

Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each house of Parliament.

43. Repeal and savings

(1) The Protection of Human Rights Ordinance, 1993 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance (Ord.30 of 1993), shall be deemed to have been done or taken under the corresponding provisions of this Act.

~Appendix III

THE NATIONAL HUMAN RIGHTSCOMMISSION (PROCEDURE)REGULATIONS, 19941

[17th February, 1994]

In exercise of the powers conferred by sub-section (2) of section 10 of the Protection of Human Rights Act, 1993 (10 of 1994), the National Human Rights Commission hereby makes the following regulations, namely:-

Chapter I

Preliminary

1. Short title and commencement.—(1) These Regulations may be called the National Human Rights Commission (Procedure) Regulations, 1994.

(2) They shall come into force with effect from the 1st day of March, 1994.

2. Definitions.—In these regulations unless the context otherwise requires,

(a) “Act” means the Protection of Human Rights Act, 1993 as amended from time to time.

1. As amended by the National Human Rights Commission (Procedure) Amendment Regulations, 1997 (w.e.f. 14-1997), Vide No. 28(2)/96 (coord), dated 3th March, 1997, published in Gazette of India, dated 13th March, 1997, Pt. II. Sec. 1.

~(b) “Code” means the Code of Civil Procedure. 1908 as amended from time to time.

(c) “Complaint” means all petitions/communications received in the Commission from a victim or any other person on his behalf, in person, by post, by telegram, by fax, or by any other means whatsoever, alleging violation, by a public servant, of all or any of the human rights defined in section 2(d) of the Act.

(d) “Director General (Investigation)” means Director General (Investigation) of the Commission.

(e) “Division” means and includes Administration Division, Law Division, Investigation Division and Research Division and such other Divisions in the Commission as may be constituted by the Chairperson.

(f) “Division Bench” means a Bench consisting of two Members of the Commission as constituted by the Chairperson.

(h) “Registrar” means Registrar of the Commission.

(i) “Regulation” means regulations framed by the Commission under Section 19(2) of the Act.

(j) “Secretary General” means Secretary General of the Commission.

(k) “Single Bnech” means a Bench consisting of one Member of the Commission as constituted by the Chairperson.

(3) Words and expressions not defined in these regulations shall, to the extent defined in the Act, have the same meaning as assigned to them therein.

3. Headquarters of the Commission.— The Headquarters of the Commission shall be located at Delhi.

4. Venue of the meetings.— The Commission shall ordinary hold its meetings and sittings in its office located at

~Delhi. However, it may, in its discretion, hold its meetings and sittings at any other place in India

if it consider it necessary and expedient.

5. Periodicity of meetings.— The Commision shall normally have its regular sittings in the first and third weeks of every month, excepting holidays. However, the Chairperson by himself or at the instance of one or more of the members may direct a special sitting of the Commission to be convened to consider any matter of emergency.

6. Secretariat Assistance.— The Secretary General, along with such other officers of the Commission as may be directed by the Chairperson, or considered necessary shall attend the meetings of the Commission.

Chapter II

Procedure for dealing with Complaints/ Suo moto action

7. Agenda.— The Secretary General shall, in consultation with the Chairperson prepare the agenda for such meetings of the Commission and shall cause notes thereon to be prepared by the Secretariat. Such notes shall, as far as possible, be self contained, specific files covering the agenda items shall be made readily available to the Commission for reference. The agenda papers shall ordinary be circulated to the Members at least two clear days in advance of every meeting, but when matters are set down only for hearing, cause list of the day of sitting shall be prepared and circulated.

8. General.— (a) Complaints may be made to the Commission in English or Hindi. However, the Commission may entertain complaints in any other language included in the Eighth Schedule of the Constitution.

(b) No fee shall be chargeable on such complaints.

(c) The complaint shall disclose a complete picture of the matter leading to the complaint.

~(d) The Commission may seek further information/affidavit as may be considered necessary.

9. Complaints not ordinary entertainable.—The Commission may dismiss in limini complaints of the following nature:—

(i) illegible;

(ii) vague, anonymous or pseudonymous; (iii) trivial or frivolous; (iv) barred under section 36(1) of the Act;

(v) barred under section 36(2) of the Act; (vi) allegation is not against any public servant;

(vii) the issue raised relates to civil dispute, such as property rights, contractual obligations and the like;

(viii) the issue raised related to service matters; (ix) the issue raised relates to labour/Industrial disputes;

(x) allegations do not make out any specific violation of human rights;

(xi) matter is sub judice before a Court/Tribunal;

(xii) matter is covered by a judicial verdict/decision of the Commission;

(xiii) where it is only a copy of the complaint addressed to some other authority;

(xiv) the matter is outside the purview of the Commission on any other ground.

10. Receipt and distribution of Dak.—(a) All communications in writing (by whatsoever mode they are received) addressed to the Commission, its Chairperson, Members or other officers of the Commission, either by name or designation, shall be received at the Receipt Counter of the Commission.

~Notes 1. Those communications which are addressed by name to the Chairperson, Members and other officers of the Commission shall be entered in separate Peon Books and delivered forthwith under acknowledgment.

2. Unless otherwise directed, communications received by the Chairperson, Members and other officers of the Commission, when marked to the Law Division, shall be dealt with in accordance with the procedure provided in this chapter.

(b) The Dak shall be opened under the direct supervision of the Section Officer in-charge of the Receipt and Despatch Section, who shall get the same sorted out sectionwise, diarised in a register containing particulars such as, date of receipt, dairy number, sender’s name and State and transmitted under acknowledgment to the concerned sections in the Law Divisions and to the respective heads of other divisions. Separate transmission registers shall be maintained for each section in the Law Division and each of the other Divisions.

Note: Copies of the orders from time to time regarding distribution of work among the Divisions and allocation of work among the various sections in the Law Divisions shall be furnished to the Section Officer incharge of Receipt and Despatch Section to facilitate proper distribution of the Dak.

11. Sorting of complaints etc.—(a) Immediately on receipt of the Dak, the Section Officer in-charge of each section in the Law Division shall sort out the fresh complaints and place them forthwith for secrutiny before the respective Assistant Registrar(s) who are put in-charge of the respective sections in that Division in accordance with the special or general order of allocation as may be made by the Registrar.

(b) Complaints and other communications requiring urgent attention shall, however, be placed forthwith before the Registrar who shall give such directions as may be necessary.

~(c) All other communications relating to his section shall be processed and appropriately dealt with.

(d) All complaints and other communications which are not in English and which are required to be placed before the Commission shall be got translated into English with utmost expedition.

Provided that only the gist of the complaint shall be prepared in English if the complaint is not entertainable or is of an urgent nature, requiring immediate attention.

12. Scrutiny of complaints.—(a) On completion of scrutiny of each complaint, the Assistant Registrar shall fill up Form No. 1 in case of complaints which are prima facie entertainable and fill up Form No. 2 if the complaint is prima facie not entertainable for any of the reasons mentioned in regulation 9. He shall then send the complaint with the scrutiny report appended thereto, to the section concerned for registration.

(b) If, however, the petition/communication is found to be not a complaint falling under section 12(a) of the Act but relates to any other clause in Section 12, the same shall be placed forthwith before the Registrar, who shall cause it to be transmitted under acknowledgment to the Secretary General, who shall place it with a brief note before the full Commission as early as possible.

13. Classification.— Subject-wise classification of the complaints shall be made as per the list annexed to these regulations as Appendix I. Having regard to the subject matter of the complaints received, the list in Appendix I may be modified or new entries added thereto from time to time as per the directions

of the Chairperson.

14. Registration.— (a) A common register shall be maintained in the Law Division for entering in serial order the case number with State Code and year of Registration, the corresponding diary number and the State to which the incident relates in respect of each complaint to be registered. Immediately on completion of the scrutiny, entry shall be made in the common

~register and the case number assigned to the complaint along with State Code shall be entered at the top right-hand corner of the complaint in red ink and also in the space provided in the Scrutiny Report.

(b) File covers shall be got printed as in Form No. 3 Records relating to each complaint shall be kept in a separate file cover arranging them chronologically in the following order:—

(i) Index in Form No. 4 (ii) Order Sheet in Form No. 5

(iii) Scrutiny Report in Form No. I/Form No. 2, as the case may be

(iv) Complaint with annexures, if any

(v) .....

(vi).......

c) The case file shall then be transmitted forthwith to the officer in-charge of the listing section for placing the matter before the Commission.

15 .Time limit for placing complaints before the Commission.— All complaints newly registered shall be placed before the Commission for preliminary consideration as expeditiously as possible but not later than seven days from the date of its receipt:

Provided that complaints which require urgent consideration shall be placed before the Commission, as far as possible, within 24 hours of its receipt.

16. Constitution of Bench(s).— (a) Subject to such special or general orders of the Chairperson, all complaints shall be initially dealt with by a Single Bench of the Commission If the Single Bench dealing with the case, having regard to the importance of the issues involved, is of the opinion that the case should be considered by a Division Bench/Full Bench, he/she may refer the case to a Division Bench/Full Bench. On receipt of such

~reference, the case shall be assigned to the Division Bench/Full Bench constituted for that purpose. However, the Chairperson may, having regard to the importance of the matter, place the case before a larger Bench.

(b) When the case is referred to a D.B./F.B. the Section Officer concerned shall get prepared the requistic number of copies of the case file for the use of all the Members of the Bench.

17. Preparation of Cause List.— The Cause List shall be prepared categorising cases under the following heads:—

* (i) Re: Entertainability; (ii) For Admission

** (iii) For directions (briefly indicate below the case number of direction sought);

(iv) For Final Disposal;

(v) Complaince Report Cases; and

(vi) Review Applications,

Note: * 1. Complaints which are prima facie not entertainable shall be placed in a separate bundle with the cause-list under this head.

** 2. Cases “For Directions” shall include, inter alia, the following where:

(i) information/report has not been received within the time specified; or

(ii) only interim report/some information is received; or (iii) reports/Information has not been received from all authorities; or

(iv) direction for issue of summons for production of document/to adduce evidence is required to be issued; or

(v) application seeking interim direction such as clubbing of similar matters, extension of time, intervention by third party, etc. is received; or/and

(vi) all other matters of interlocutory nature.

~18. Placing of case files.— (a) The number of cases to be included in the cause-list to be placed each Bench(s) per day shall be fixed according to the directions that may be given by the Chairperson from time to time.

(b) The case file in respect of the cases shown in the cause-list shall ordinarily be placed two days in advance before the Bench(s) along with a copy of the cause-list.

19. Presenting Officer to assist the Members.—

(a) Each Member shall be assisted by a Presenting Officer. When the Member takes up for consideration the cases assigned to him/ her for final disposal, it shall be the duty of the Presenting Officer to study and present the cases and render such other assistance as may be required, for consideration and disposal of the cases.

(b) If, however, the Commission sits in D.B./F.B. such Bench shall be assisted by the Presenting Officer(s) attached to the Members constituting the Bench as may be directed by that Bench.

20. Court Master to function as Court Officer.—

When the Member(s) hold sittings in Court Hall, the Court Master assigned by the Registrar shall discharge such functions as are normally performed by Court Officers in the Supreme Court/ High Courts and also discharge such other functions as may be assigned to him by the Chairperson.

21. Preliminary consideration, Issue* of Notice, etc.— (a) If on consideration of the complaint the Commission dismiss the complaint in limini, the said order shall be communicated to the complainant in Form No. 6 and the case shall be treated as closed.

(b) If on consideration of the complaint or su-motu the Commission admits/take cognizance and directs issue of notice to any authority calling upon it to furnish information/report, a notice in Form No. 7 shall be issued, enclosing a copy of the complaint thereto. Such notice shall be signed by the Assistance Registrar.

~(c) If no time is fixed by the Commission for the return of notice/furnising of information/report, the time shall be 30 days from the date of service of the notice.

(d) If, however, the Commission issues any other direction or order, action shall forthwith be taken accordingly.

(e) If the reports information is not received from the concerned authority within the given time, or received late or not complete in all respects, the case shall be placed before the Commission or further direction..

(f) Intimation of the order referred to in Clauses (b) and (d) shall be given to the complaint forthwith.

22. Recording of Orders/Proceeding.— (a) Ordinarily orders of the Commission shall be recorded in the Order Sheet; provided that the orders which are lengthly shall be recorded on separate sheets and appended to the order sheet. The P.S./ P.A. attached to the Member concerned shall make entry in the relevant column of the Order Sheet mentioning the page number and die date of the order. The order shall then be fed into the COMMONS PROGRAMME.

(b) In cases where urgent action is required to be taken pursuant to the order/proceeding issued by the Commission, the P.S./P.A. concerned shall forthwith send the file to the Registrar/ Jt. Registrar who shall give suitable instructions in regard to the mode of communication by telephone/fax/speed post/telegram, etc. and transmit the records to the concerned section for taking further action.

23. Statewise Information Register.— A register in Form No. 8 shall be maintained for each State and the relevant information entered in the respective columns therein as and when the information becomes available.

24. Preparation of Synopsis.— (a) On receipt of the information/report called for, a detailed note in the form of a synopsis shall be prepared or caused to be prepared by the Joint Registrar/Dry. Registrar/Presenting Officer in Form No. 9 where-

~upon the case shall be treated as ready for being placed before the Commission for final disposal.

(b) When the Commission, upon consideration of the information/report finally disposes of the case without any recommendation, the case shall be treated as closed.

25. Summons.- (a) Whenever the Commission directs to summon:

(i) the complainant or any other person on his behalf to afford him a personal hearing.

(ii) any other person who, in the opinion of the commission, should be heard for appropriate disposal of the matter before it;

(iii) any person to cause production of records required by the Commission;

(iv) any person to be examined as witness; (v) any person whose conduct is inquired into by it; or,

(vi) any person whose reputation, in the opinion of the Commission, is likely to be prejudicially affected;

a summon indicating the purpose of summoning such person shall be issued in Form No. 10.

(b) The case in which summons has been issued for personal appearance of a person, shall be placed before the Commission on the date shown in the summons for such personal appearance.

26. Calling for Investigation report.— (a) Whenever the Commission orders investigation to be undertaken by its Investigation Division or by any other investigating Agency of the Central/State Government as provided in Section 14 of the Act, a copy of such order along with copies of the papers

relevant thereto shall be furnished forthwith to such Division/Agency calling upon it to conduct the investigation and submit its report within the time specified in the order arid if no time is specified, within two weeks from the date of the order.

~(b) If no such report is received within the time given, the matter, shall be placed before the Commission forthwith for further directions.

27. Communication of Recommendations.—

When the Commission, upon consideration of the inquiry report, makes any recommendation, a copy of the inquiry report along with a copy of the recommendation shall be sent with utmost expedition, not later than seven days from the date of such recommendation, to the concerned government or authority calling upon it to furnish its comments on the report including the action taken or porposed to be taken, within a period of one month or such further time as the Commission may allow.

28. Steps after calling for Comments.— (a) If no comments are received within the time allowed, the case shall be placed before the Commission forthwith for further direction.

(b) If comments are received, the case shall be placed before the Commission with a brief note containing the following information regarding:

(i) acceptance of the recommendation in full or in part;

(ii) the action, if an/, taken or proposed to be taken by the concerned government/authority;

(iii) the reasons, if any, given for not accepting the recommendations; and

(iv) the action that may be taken pursuant to the comments received.

(c) On consideration of the comments received and the note referred to in clause (b), the Commission may pass such order as it deems proper.

29. Incorporation of other documents received.— (a) Whenever any document is received in the Commission relating to the complaint registered, the same shall be incorporated in the chronological order in the concerned case

~file, duly paginated. Appropriate entries shall be made in the order sheet and in the index.

(b) Data relating to each case as required to be provided in the register in Form No. 8 and also information relating to intermediary stages shall be fed into the computer at every stage as and when the information becomes available.

30. Publication.— When the Commission passes order after inquiry under Section 17 or after consideration of the report referred to in Section 19 (1) (a) of the Act, the Registrar shall cause to:

(a) Prepare a list of such cases, furnishing particulars such as case number, name of the complainant, name of the government authority concerned and the date of the final order. A Note shall be put below the list to the effect that copy of the Inquiry Report, etc. referred to in sub-section (6) of Section 18 or sub-section (3) or Section 19 of the Act are available for perusal in the Library of the Commission;

(b) publish the list so prepared on the Notice Board of the Commission on the first working day of every month.

(c) make available simultaneously to the Library of the Commission two sets of the documents referred to in sub-section (6) of Section 18 and sub-section (3) of Section 19 or the Act, as the case may be, and the further order, if any, passed by the Commission in each case.

(d) send simultaneously free of cost a copy each of:

(i) the documents referred to in clause (c) to the complaintant or his representative; and

(ii) the order referred to in regulation 27 (c) to the concerned government/authority.

31. Mode of Communication.— Unless otherwise directed, all communications from the Commission shall be sent by ordinary post.

~32. Review.— (a) No party shall have a right to seek review of the order/proceedings of the Commission.

(b) However, if any application seeking modification/review of the order or proceedings passed by the Commission is received, the same shall as far as possible be placed before the same Bench which made the order along with the case file and a brief note on the points made out in such application and the same shall be disposed of by such order as may be deemed proper.

33. Consignment of records.— Records of all cases finally disposed of shall be transmitted to the Records Section in the Law Division after completing the entries in the register in Form No. 8 with regard to each such case.

34. Period of Retention of Record.— (a) Unless otherwise ordered by special or general orders of the Chairperson, the entire records of disposed of complaints shall be destroyed after the expiry of a period of two years from the date of final disposal.

(b) However, the register in Form No. 8 which contains detailed information regarding each complaint registered State-wise shall be retained permanently.

35. Destruction of records.— (a) The officer in-charge of the Record Section shall identify the cases, the records of which are ripe for destruction and ensure that appropriate entries are made in the register in Form No. 8 regarding the date of destruction. A list of such cases shall be maintained in a separate book in the record section.

(b) Original documents produced by a party shall be returned to him if a request thereof is received in the Commission before the due date of destruction.

(c) Destruction of the records shall be undertaken in the month of July every year.

(d) The officer in-charge of Record Section shall cause to destroy the records subject to such general or special order/

~direction that may be given by the Registrar regarding the manner of destruction.

36. Procedure regarding Suo Motu Action.— The procedure contained in this Chapter shall mutatis mutandis apply to suo motu action taken by the Commission.

37. Preparation of statements.— The Registrar shall cause to prepare the following statements:—

(i) weekly statement in Form No. 11;

(ii) State-wise monthly statement in Form No. 12;

(iii) State-wise monthly statement in Form No. 13; and

(iv) State-wise yearly statements based on the monthly statements being prepared in Form No. 12 and 13.

38. Periodical Review of allocation of work.—

The Registrar shall review periodically the allocation of work in the Law Division to ensure equitable distribution of work in each section in that Division.

Chapter II

Miscellaneous

39. Minutes of the meetings.— (a) The minutes of each meeting of the Commission shall be recorded during the meeting itself or immediately thereafter by the Secretary-General or by any other officer as directed. Such minutes shall be submitted to the Chairperson for his approval and, upon approval, be circulated to all the Members of the Commission at the earliest and in any case, sufficiently before the commencement of the next meeting.

(b) The conclusions of the Commission in every matter undertaken by it shall be recorded in the form of an opinion. Dissenting opinions, if given, shall also form part of and be kept on record. Action shall be taken on the basis of the majority opinion where there be any difference.

~(c) Follow up action.— Unless specifically authorised, no action shall be taken by the Secretarial of the Commission on the minutes of the meetings until the same are confirmed by the Chairperson.

40. Record of minutes.— A master copy of the minutes of every meetings and opinions of the Commission shall be maintained duly authenticated by the Secretary General and a copy of the minutes pertaining to each item shall be added to the relevant file for appropriate action. Opinions shall be kept in the respective records and for convenience, copies thereof with appropriate indexing shall be kept in guard files.

41. Report of action taken.— Report of follow up action shall be submitted to the Commission at every subsequent sitting indicating therein the present stage of action on each item on which the Commission had taken a decision in any of its earlier meetings, excepting the items on which no further action is called for.

42. Transaction of business outside the Headquarters.— The Commission or some of the Members may transact business at places outside its Headquarters as and when previously approved by the Chairperson, provided that if parties are to be heard in connection with any inquiry under the Act at least two Members shall constitute the bench of the Commission for such purpose.

43. Authentication of orders and decisions.— (1) Orders and decisions of the Commission shall be authenticated by the Secretary-General or any officer of the Commission (authorised by the Chairperson) not below the rank of an Under-Secratary.

(2) Copies of enquiry reports or orders passed finally disposing of matters by the Commission shall be furnished free of cost to the petitioner or its representative.

(3) Unless any document is classified by the Commission as confidential copy thereof would be available to the parties in the

~matter on payment of a reasonable fee raised to meet the cost. Every effort should be made to provide the copies with utmost expedition and, in any case not later than one week of the date of request.

44. Annual report.— The Commission shall furnish its annual report for the period commencing

from 1st April of the year to 31st March of the succeeding year to the Central Government and to the State Governments concerned as provided in section 20(1) of the Act. The original report shall be signed by the Chairperson and Members of the Commission and appropriately preserved and a duly authenticated copy shall be sent to the appropriate Government by the end of May of every year.

45. Special reports.— The Commission may furnish such Special Reports on specific matters as may be considered in terms of section 20(1) of the Act.

46. Printing of the reports.— The Secretarial of the Commission shall be responsible for the printing of the Annual Report and Special Reports with utmost expedition and in any case, not later than one month of finalisation of the same

47. Investigation Team.— The Commission shall have its own team of investigation to be headed by a person not below the rank of a Director-General of Police appointed by its and such team shall consist of one Deputy Inspector General of Police, 2 Superintendents of Police, 6 Deputy Superintendents of Police and 24 Inspectors of Police and such other categories of officers as the Commission from time to time decides. The Commission may in any given case appoint an appropriate number” of outsiders to be associated with the investigation either as Investigators or Observers.

48. As and when any matter which is not covered by these Regulations arises, it shall be competent for the Commission to make appropriate directions and the Commission may add, delete, amplify and amend these Regulations from time to time.

~Appendix IV

RECOMMENDATIONS OF THE N.H.R.C. FOR

AMENDMENTS TO THE PROTECTION OF

HUMAN RIGHTS ACT, 1993

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1. Long TitleAn act to provide for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.

An Act to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto including the implementation of International Covenants.

Reference to International Convenants specifically made.

2. Section 1(2)Provided that it shall apply to the State of Jammu and Kashmir only

Provided that it shall apply to the State of Jammu and Kashmir only in so far as it

Reference to International Convenants specifically made to clarify doubts.

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in so far as it pertains to the matters relatable to any of the entries enu-merated in List I or List III in the Seventh Schedule to the Consti-tution as applicable to that State.

pertains to the matters relatable to International Covenants and any of the entries enumerated in List I or List III in the Seventh Schedule to the Constitution as applicable to that State.

NHRCs order dt. 11.6.99 in Case No. 802/94-95/NHRC and connected matters taken into account.

3. Section 21 (a)

“armed forces” means the naval, military and air forces and includes any other armed forces of the Union.

“armed forces” means the naval, military and air forces.

Excludes paramilitary forces for the reasons that in International Forums lack of jurisdiction over military and para-military forces is pointed out as a serious infirmity affecting the credibility of the NHRC and commitment (to Human Rights) on the part of Govt. of India.

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1(f)“Inter-national C o v e n a n t s “ means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 196d.

“International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16* December, 1966 and any other Covenant and Convention which has been, or may hereafter be, adopted by the General Assembly of the United Nations.

Expands the scope to include subsequent convenants instead of freezing it in time to the year 1966.

1(g)“ M ember” means a Member of the Commission or of the State Commission,

“Member” means a Member of the Commission or of the State Commission, as the case may be.

As the term Chairperson is defined earlier, it is redundant to include Chairperson within the definition

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As the case may be, and includes the Chairperson.

of Member and hence this change.

Section 2(2)Any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to a corresponding law, if any, in force in that State.

Any reference in this Act to a law which is not in force in any area shall, in relation to that area, be construed as reference to the corresponding law, if any, in force in that area.

Broadbases the provision to cover any such contingency in any area instead of the provision being restricted to one state.

4. Section 32(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating

Two Members to be appointed from amongst persons who are working or had worked in the field of human rights and have practical experience in

Provision is slightly modified for better focus at the same time avoiding too restrictive a provision.

~Sl No. Present Provision Proposed Amendments Reasonsto human rights. Matters relating to human

rights

Following explanation shall be introduced below Sub-Section (2)(d)Explanation;In the composition of the Commission care shall be taken to ensure that it reflects the pluralistic character of the polity.

This is suggested in lieu of any specific reservation for any category/group in view of separate commissions for Minorities, SC/ST and Women.

(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.

(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as may be delegated to him by the Commission or the Chairperson.

To enable delegation of powers to Secretary General by Chairperson in respect of matters for which Chairperson alone is empowered.

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5. Section 4 Section 4

In sub-section (1) after the second proviso, the following proviso shall be inserted Provided also that in the case of appointment of a Member, the Chairperson shall be a member of the Committee.

Membership of the Committee expanded because of Chairperson’s responsibility for proper functioning of the Commission.

The following proviso shall be added after the third proviso Provided however also that in case of an equality of votes in the meeting the Chairperson of the Committee shall have a casting vote.

To meet the contingency of equality of votes.

Sub-section (2)

No appointment of a Chairperson or a Member shall be invalid merely by

No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy or absence in the Committee referred to in sub-section (1).

To cover the contingency of absence.

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reason of any vacancy in the Committee.

6. Section 5(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the Commission shall only be removed from his office by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure

The Chairperson or any other Member of the Commission shall only be removed from his office by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf of the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

Modified in view of proposed deletion of sub-section (2).

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Amendmentsprescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.(2) Notwith-standing anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be:

To be deleted entirely.

In this regard reference is invited to Art. 124(4) of the constitution regarding removal of judges. In light of that provision, Sec. 5(2) is deemed redundant and Sec. 5(1) deemed sufficient for effecting the removal as the words ‘proved misbehaviour or incapacity” can cover all the grounds enumerated in the present Sec. 5(2).

(a) is adjudged on insolvent; or(b) engages during

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his term of office in any paid employment outside the duties of his office; or

(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President in-volves moral turpitude.

7. Section 6Marginal note. Term of office of Change needed

~Sl No. Present Provision Proposed Amendments ReasonsTerm of office of Members.

Chairperson and Members. consequent upon the change in the definition in Sec. 2(l)(g).

A new sub-sec. 4 will be added and it shall read as follows :(4) Chairperson or any Member may by writing under his hand addressed to the President resign his office.

To provide for the contingency of resignation as such provision does not exist now.

8. Section 8Terms and conditions of service of Members.

Terms and conditions of service of Chairperson and Members.

The salaries and allowances payable to, and other terms and

The salaries and allowances payable to, and other terms and conditions of service of, the

Change needed consequent upon the change in the definition in Sec. 2(l)(g).

conditions of service of, the Members shall be such as may be prescribed.

Chairperson and the Members shall be such as may be prescribed.

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Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvan-tage after his appointment.

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after his appointment.

9. Section 9No act or proceedings of the Commission shall be questioned or shall be in-validated merely on the ground of existence of any vacancy or defect in the constitution of the Commission.

No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in its constitution.

For removal of ambiguity in the current provision.

10. Section 10(2) The Commission The Commission shall, by For better clarity.

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shall regulate its own procedure.

regulations, specify its own procedure for the conduct of its meetings and other matters.

11. Section 11The Central Government shall make available to the Commission :

The Central Government shall with the concurrence of the Commission, make available to the Commission.

To focus on and secure the autonomous position of the Commission, it is considered necessary that appointments are made with the concurrence of the Commission.

(a) an officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the Commission; and

(a) an officer of the rank of Secretary to the Government of India who shall be appointed by the Commission as the Secretary- General of the Commission.

(b) such police and investigative staff under an officer not below the rank of a Director General of Police and

(b) an officer of the rank of a Director-General of Police who shall be appointed by the Commission as the Director-General (Investigation) of the Commission.

The present subsection(b) is split into two subsections for better clarity.

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Amendmentssuch other officers and staff as may be necessary for the efficient performance of the functions of the Commission.

(c) such police and investigative staff, as the Commission may consider necessary from time to time, who shall be appointed by the Commission.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint such other administrative, technical and scientific staff as it may consider nece-ssary.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint such other investigative, administrative, technical and scientific staff as it may consider necessary.

To enable the Commission to appoint investigative staff of its choice even from outside the Government.

(3) The salaries, allowances and conditions of service of the officers and other staff appointed

(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as

In keeping with the autonomous status of the Commission this amendment is needed as the Commission should have the final say on the salaries,

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under subsection (2) shall be such as may be prescribed.

may be prescribed by regulations. allowances etc. of the staff appointed by Commission.

12. Section 12(a) inquire, suo motu or

on a petition presented to it by a victim or any person on his behalf, into a complaint of

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, or on the request of the Supreme Court.

To provided for the contingency of cases being referred to the Commission by the Supreme Court and to obviate the kind of difficulties which arose in the Punjab Mass Cremation Case.

violation of human rights or abetment thereof; or

(i) violation of human rights or abetment thereof; or

negligence in the prevention of such violation, by a public servant.

(ii) negligence in the prevention of such violation, by a public servant;

Clause (c) Clause (c)visit, under intimation to the State Government, any jail or any other institution under

Visit any jail or any other institution under the control of the State Government, where persons are detained or lodged

The stipulation of ‘intimation’ to State Government done away with as it is neither in keeping with the autonomy of the Commission

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the control of the State Government, where persons arc detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon;

for purposes of treatment, refor-mation or protection to study the living conditions of the inmates and make recommendations thereon;

nor is capable of ensuring the element of surprise over the visit.

13. Section 13(l)(a) summoning and enforcing the attendance of witnesses and examining them on oath

(l)(a) summoning and enforcing the attendance of witnesses and examining them on oath and obtaining duly signed statements.

Based on experience to obviate the situation of a witness refusing to sign his oral statement with the ulterior motive to deny it at a later point of time.

(l)(f) any other-matter which may be prescribed

(l)(f) any other matter which may be prescribed by regulations.

New Sub-section 6

To bring in specificity.

(a) The Commission To enable transfer of

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may, whenever it considers expedient to do so, transfer any of the complaints filed or pending before it to the State Human Rights Commission of the State from which the complaint arises, for disposal in accordance with the provisions of the Act.

Provided that the complaint so transferred is one respecting which the State Commission would have jurisdiction to entertain.

(A) The complaint so transferred under clause (a) shall be dealt with an disposed of by the State Commission, as if the complaint had

complaints to the State Commission wherever they are set up.

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initially been filed before the State Commission.

14. Section 14(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or

(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer of the Commission, or investigation agency of the Central Government or any

Scrope expanded to bring in clarity and to enable utilisation of the services of the officers of the Commission without being legally challenged.

investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.

State Government with the concurrence of the Central Government or the State Government as the case may be.

(2) (a) summon and enforce (2) (a) summon and enforce the For the same reason as in SI. No.

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the attendance of any person and examine him.

attendance of any person and examine and obtain his duly signed statement.

12 (Sec. 13(l)(a)).

15. Section 18Marginal Note.

Steps after Inquiry. Steps during and after inquiry. The Ahmadi Committee had suggested a complete overhaul of the present provision from Sec. 14 to Sec. 18 to cater to various require-ments but the Commission has narrowed them down to a few important changes keeping in view the need to reduce amendments to the bare minimum while at the same time ensuring that essential elements as are required for increasing the effectiveness of the provisions are not lost sight of.

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The Commission may take any of the following steps upon the completion of an inquiry held under this Act namely-

The Commission may take any of the following steps during, or upon the completion of an inquiry held under this Act namely.

To clarify the scope for making necessary interim orders also during the pendency of the inquiry.

(i) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned government or authority the

(1) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned government or authority :

Sub-section(1) is amplified and scope is provided for other recommendations being made.

initiation of proceedings for prosecution or such other action as the Commission

(a) payment of compensation or damages to the complainant or to the victim or the members of his family as the

~ NA TIONAL HUMAN RIGHTS COMMISSION OF INDIA 603

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may deem fit against the concerned person or persons;

Commission may consider necessary;

(b) the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(c) such further action as it thinks fit;

(3) recommend to the concerned government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.

(3) recommend to the concerned government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.

Amplifies the provisions to enable payment of interim relief at any stage of the inquiry.

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16. Section 19(2)

The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(a) Upon receipt of the report together with the recommendation of the Commission the Central Government if considers itself unable to comply with the same or any part of it, shall communicate its reasons for inability to the Commission within a period of three months, or such further extended period as may be given for this purpose by the Commission.

Provision amplified for better appreciation and understanding of the matter where Central Government may feel difficulty in accepting the recommendation of the Commission in a given case/situation.

(b) The Commission shall thereafter consider the same and make such final recommendations as it deems fit.

(c) The Central Government shall

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inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

17. Section 20(2) The Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action

(2) The Central Government and the State Government, as the case may be, shall within a period of three months from the date of receipt of such report cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action taken or

As the reports of the Commission are sought after by the National and International Human Rights bodies and by NGOs and others, it is deemed necessary to avoid delays in the release of the report. This provision will enable the Commission to release the reports in time.

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taken or proposed to be taken on the recommendations of the Commission and the reasons for n o n acceptance of the recommendations, if any

Proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any

Provided that where any such report is not laid before the Houses of Parliament or the State Legislature, as the case may be, within that period, it shall be open to the Commission to publish such report.

18. Section 21

(1) A State Government may constitute a body to be known as the........(name of the State) Human Rights Commission to exercise the powers

A State Government shall constitute a body to be known as the.........(name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the

It is highly desirable, looking at the widespread violation of human rights in many parts of the country, that each State has its own Human Rights Commission. Therefore, it is desirable to

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conferred upon, and to perform the functions assigned to, a State Commission under this chapter.

functions assigned to, a State Commission under this chapter.

introduce the element of compulsion and hence the proposed amendment.

(2) (a)

The State Commission shall consist of:

A Chairperson who has been a Chief Justice of a High Court;

(2) The State Commission shall consist of:

(a) a Chairperson who has been a Chief Justice of a High Court;

(b) one Member who is, or has

The size of the State Commission is proposed to be reduced in order to make them more compact and further also keeping in view the need to lower the financial burden on the States.

(b) one Member who is, or has been, a Judge of a High Court;

been, a Judge of a High Court;

(c) one Member to be appointed from amongst persons

(c) one Member who is, or has been, a district Judge in that State;

who are working in the field or had worked in the field of human rights

and have practical

two Members to be appointed

experience in matters relating to human rights

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from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

The following explanation shall be introduced under sub-section

2.

Explanation

In the composition of the Commission care shall be taken to ensure that it reflects the pluralistic character of polity

19. Section 22

(1) The Chairperson and other Members shall be appointed by the Governor by warrant under his hand and seal :

(1) The Chairperson and other Members shall be appointed by the Governor by warrant under his hand and seal :

Provided that every appointment under this sub-section shall be made after obtaining

Proviso 1 : Every appointment under this sub-section shall be made after obtaining the recommendation

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the recommendation of a Committee consisting of

of a Committee consisting of

(a) The Chief Minister-Chairperson (a) The Chief Minister-Chairperson

(b) Speaker of the Legislative Assembly-Member

(b) Speaker of the Legislative Assembly-Member

Minister in-charge of the Department of Home, in that State—Member

(c) Minister in-charge of the Department of Home, in that State—Member

(d) Leader of the Opposition in the Legislative Assembly-Member

(d) Leader of the Opposition in the Legislative Assembly-Member

Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the

Proviso 2 : Where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the Opposition in that Council shall also be members of the

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Opposition in that Council shall also be members of t h e Committee.

Committee.

Provided also that no sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.

Proviso 3 : No sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.

Proviso 4 : In case of an equality of votes in the meeting the Chairperson shall have a casting vote.

To provide for such a contingency of equality of votes.

Proviso 5 : In the case of appointment of the Chairperson of the State Commission, the Chairperson of

To enable the Committee to focus its choice, the presence of the former Chief Justice of India who has

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the National Human Rights Commission shall be consulted.

knowledge of the functionaries under consideration for the office of the Chairperson of the State Commission is expected to be helpful.

Proviso 6 : In the appointment of a Member, the Chairperson of the State Commission shall be a member of the Committee.

For the same reasons as in SI. No. 4 i.e. introduction of 3rd proviso to Sec. 4.

A new Section shall be added as follows : Section 22(1 )(A)

It shall be permissible for the Chairperson or Member, as the case may be, of one State Commission to be appointed as the Chairperson or Member, as the case may be, of another State Commission

This is an enabling provision which will be useful to those states especially the small ones in the North East or goa or Pondicherry, etc. who for financial or other reasons seek an alternative provision.

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provided however the consent of the concerned State Government, and of the concerned Chairperson or Member as the case may be, is obtained.

(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee.

(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee referred to in subsection (1).

For the same reason as in SI. No. 4 i.e. Sec. 4(2)

20. Section 23(1) Subject to the provisions of sub-section (2) the Chairperson or any other member of the State Commission shall only be removed from his office by order of the

The Chairperson or any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved mis behaviour or incapacity after the

Changes proposed for the reasons as in the case of Sec. 5(See SI. No. 5).

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President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.

(2) Not with-standing anything in sub-section (1),

To be entirely deleted. Changes proposed for the reasons as in the case of Sec. 5 (See SI. No. 5).

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the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be :

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a

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competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

21. Section 24

Head Note Term of office of Members of the State Commission.

Term of office of Chairperson andMembers of the State Commission.New sub-section (4) shall be added.

For the same reason as in the case of change proposed in SI. No. 6.

Chairperson or any Member may, by writing under his hand addressed to the Governor, resign his office.

For the same reason as in the case of change proposed in SI. No. 6.

22. Section 26 Section 26

Terms and conditions of service of Members of

Terms and conditions of service of the Chairperson and

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the State Commission. Member of the State Commission.

The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed by the State Government.

The salaries and allowances payable, and other terms and conditions of service of the Chairperson and the Members shall be such as may be prescribed by the State Government.

As in SI. No. 8

Provided that neither the salary and allowances nor the other tems and conditions of service or a Member shall be varied to his disadvantage after his appointment.

Provided that neither the salary, allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after his appointment.

23. Section 27

Sub-section (1) The State Government The State Government shall, Changes similar to those suggested to

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shall make available to the Commission : with the concurrence of the Commission, make available to the Commission.

Sec. 11 (SI. No. 10) and for the same reasons too.

(a) an officer not below the rank of a Secretary to the State Government who shall be the Secretary of the State Commission; and

(a) an officer not below the rank of a Secretary to the State Government who shall be the secretary of the State Commison; and

(b) such police and investigative staff under an officer not below the rank of an Inspector General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the State Commission.

(b) an officer of the rank of an Inspector General of Police who shall be appointed by the Commission as the Inspecto General (Investigation) of the Commission;

The present subsection (b) is split into two for better clarity.

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(c) such police and investigative staff, as the Commission may consider necessary from time to time, who shall be appointed by the Commission

(2) subject to such rules as maybe made by the State Government in this behalf, the State Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.

(2) subject to such rules as may be made by the State Government in this behalf, the Commission may appoint such other investigative, administrative, technical and scientific staff as it may consider necessary.

Changes similar to those suggested to Sec. 11 (SI. No. 10) and for the same reasons too.

(3) The salaries, allowances and conditions of service of the officers and other staff appointed

(2) The salaries, allowances and other terms and conditions of service of the officers and other staff appointed under sub-section

Changes similar to those suggested to Sec. 11 (SI. No. 10) and for the same reasons too.

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under subsection (2) shall be such as may be prescribed by the State Government.

(2) shall be such as may be prescribed by regulations.

24. Section 28(2) The State Government shall cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on

(2) The State Government shall within a period of three months from the date of receipt of such report, cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on the recommendations

Changes proposed are similar to the changes proposed to Sec. 20 and for the same reasons (see SI. No. 16).

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the recommendations of the State Commission and the reasons for non-acceptance of the recommendations, if any.

of the State Commission and the reasons for non-acceptance of the recommendations, if any.

The following proviso shall be added :“Provided that where any such report is not laid before the House or Houses, as the case may be, of State Legislature within that period, it shall be open to t h e S t a t e Commission to publish its report.”

25. Section 30

For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government

(1) Where an offence under any law for the time being in force also involves the violation of human rights, the State Government may, for the purpose of

To have a better focus to this laudable provision to have easy access to justice at the District level itself in case of human rights violations, which however, in its

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may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences.

Provided that nothing in this section shall apply if:

providing speedy trial of the offence involving human rights as, specified by notification issued in that behalf by the appropriate Government, and with the concurrence of the Chief Justice of High Court by notific at ion, constitute one or more Human Rights Courts to try the offence.

present form is lacking in clarity, the provision is amplified and clarified.

(a) a Court of Session is already specified as a special court; or

(b) a special court is already constituted, for such offences under any other law for the time being in force.

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(2) A Human Rights Court shall be presided over by a person who is, or has been a Sessions, Judge who shall take cognizance and try the offence, as nearly as may be in accordance with the procedure specified in the Code of Criminal Procedure, 1973.Provided that a Human Rights Court shall, as far as possible, dispose of any case referred to it within a period of three months from the date of framing the charge.(3) It shall be competent for the Human Rights Court to award such sentence as may be authorised by law and the power to

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decide the violation of human rights shall, without prejudice to any penalty that may be awarded, include the power to award compensation, relief, both interim and final, to the person or members of the family, affected and to recommend necessary action against persons found guilty of the violation:

(4) An appeal against the orders of the Human Rights Court shall lie to the High Court in the same manner and subject to the same conditions in which an appeal shall lie to the High Court from a Court of Session.(5) Nothing in this section shall apply if-

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(a) a Court of Session is already specified as a special court; or(b) a special court is already constituted, for such offences under any other law for the time being in force.

26. Section 32

(1) The Central Government shall after due appropriation made by Parliament by law in this behalf, pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.

(1) The Central Government shall pay to the Commission by way of grants such sums of money as are from time to time approved by Parliament after due appropriation, by law in this behalf.

Provision modified to confer financial autonomy to the National Human Rights Commissions in keeping with its mandate and in line with the Paris Principles governing the establishment and strengthening of the National Institutions for Promotion of Human Rights.

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(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1)

(2) The Commission, in its discretion, may spend such sums as it think fit for performing the functions under this Act out of grants referred to in sub-section(l).

27. Section 33

(1) The State Government shall after due appropriation made by Legislature by law in this behalf, pay to the Commission by way of grants such sums of money as the State Government may think fit for being

(1) The State Government shall pay to the Commission by way of grants such sums of money as are from time to time approved by legislature after due appropriation, by law in this behalf.

Provision modified to confer financial autonomy to the State Human Rights Commissions in keeping with their mandate and in line with the Paris Principles governing the establishment and strengthening of the National Institutions for Promotion of Human Rights.

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utilised for the purposes of this Act.

(2) The Commission may spend such sums as it thinks fit for performing the functions under Chapter V, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

(2) The Commission, in its discretion, may spend such sums as it thinks fit for performing the functions under this Act out of grants referred to in sub-section (1).

28. 29.

Chapter VIIIHeading : MiscellaneousSection 36

Chapter VIIIJurisdiction of the Commission.

Change needed in view of complete overhaul proposed of Sec. 36 and 37.

Head noteMatters not subject to jurisdiction of the Commission.

Taking cognizance of matters before other Commissions.

Change needed in view of complete overhaul proposed of Sec. 36 and 37.

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Sub-sections

(1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.

(1) Notwithstanding anything contained in any other law and constitution of a State Human Rights Commission, or any other Commission, except a Commission appointed under the Commission of Inquiries Act, the Commission may take cognizance of and inquire into the violation of human rights, notwithstanding the cognizance there of taken by the concerned Commission, either by itself or in coordination with the concerned Commission and deal with it in accordance with this Act.

In keeping with the pre-eminent status of the National Human Rights Commission, it is considered necessary that it should have the overarching ability to oversee the issues of human rights violations and their remedies and hence this provision has been proposed.

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Provided further that the Commission may, in its discretion, entertain any matter already considered and decided by any other Commission, except a Commission appointed under the Commission of Inquiries Act, for examination either suomotu or at the instance of the aggrieved person except on the question of quantum of compensation.

In addition to the reasons given above, it is also considered that a certain power of judicial superintendence and powers similar to those under Art. 136 of the Constitution are necessary to prevent any miscarriage of justice in any case of violation.

(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the

(2) The Commission or the State Commission shall not, subject to the proviso, inquire into any matter after the expiry of one year from the date on which the act constituting violation of human

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act constituting violation of human rights is alleged to have been committed

rights is alleged to have been committed.Provided that the Commissioner State Commission may inquire into any matter after the expiry of the said one year period, if it is satisfied, for reasons to be recorded, that these are good and sufficient reasons for taking cognizance.

This proviso is deemed necessary to do justice in deserving cases where for any reason the one year limiting stipulation could not be adhered to.

30. Section 37

Constitution of special investigation teamsNotwithstanding anything contained in any other law for the time being in force, where the Government considers it

The present Section 37 to be omitted.

The present provision seems anomalous as the primary responsibility to enquire into the human rights violations under the Act are that of the National and State Human Rights Commissions and so this provision is not only redundant but

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necessary so to do, it may constitute one or more special investigation teams, consisting of such police officers as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of human rights.

is also against the spirit of autonomy of the National and State Commissions. So its deletion is proposed. Government can take recourse to other existing laws if it wants to order any inquiry in any matter.

The following section shall be substituted :

Transfer of complaints and inquiries

“Where complaints involving the same or substantially the same issues, of violation of human rights or negligence in prevention of such violation, by a

This provision is similar to Article 139A of the Constitution and will enable NHRC in appropriate cases, to establish uniformity in cases having similar issues.

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public servant, are pending before the Commission and a State Commission or more than one State Commission, and the Commission is satisfied on its own motion, or on an application made by the Central or State Government, or by a party to any such complaint, that such issues are substantial issues of general importance, the Commission may withdraw the complaints or inquiries before the State Commission or State Commissions and inquire into all that matters itself.

31. Introduction of a new Chapter IX After Sec. 37 in the Principal Act introduce the

Necessitated because of the change made to heading of Chapter VIII.

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following words and figures.

“Chapter IX Miscellaneous “32. Section 40

(2)(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under subsection (3)of section 11.

To be deleted. Since appointment of the kind in Sec. 11(3) will be governed by regulations (see SI. No. 10) this provision is redundant.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of

(3) Every rule made under this Act by the Central Government or every regulation u/ s 41A(2)(a) made by the Commission shall be laid, as

Enabling provision for placing of the Regulations before Parliament.

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Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of

soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any

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no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

33. Section 41

(2)(b) The conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under sub-

To be deleted. Since appointment of the kind in Sec. 27(3) will be governed by regulations (see SI. No. 21) this provision is redundant.

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section (3) of section 27.

Sub-section (3)

Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

Every rule made by the State Government under this section and every regulation made by the State Commission under Section 41(B)(2)(a), shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of One House, before that House.

Enabling provision for placing the Regulations before State legislatures.

34. Amendment to introduce new Sec. 41 A and42B.Sec. 41A Power of the Commission to make regulations:

(1) The Commission may, subject

Provision needed in view of the stipulation that certain matters will

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to the rules made by the Central Government by notification and with the approval of that Government make regulations to carry out the purposes of this Act.

be prescribed by the Commission through Regulations (See Sec. 10(2) and Sec. 11(3)—SI. No. 9 & 10).

(2) In particular, and without prejudice to the foregoing power such regulations may provide for all or any of the following matters, namely:

(a) Salaries and allowances of officers and other staff under Sec. 17(3).(b) Any other matter which the Commission is required to prescribe by regulations.Section 4IB-Power of the State Commission to

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make regulations :(1) The State Commission may, subject to the rules made by the State Government, by notification and with the approval of that Government, make regulations to carry out the purpose of this Act.

Provision needed in view of the stipulation that certain matters will be prescribed through Regulations by the State Commission (see Sec. 10(2) and Sec. 27(3)—SI. No. 9 & 21).

(2) In particular, and without prejudice to the foregoing power, such regulations may provide for all or any of the following matters, namely:(a) Salaries and allowances of officers and other staff under Section 27(3).(b) Any other matter which the State Commission is required to prescribe by regulations.

~Appendix V

HUMAN RIGHTS PROVISIONS IN THE INDIAN CONSTITUTION

I. Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

PART-III

II. Fundamental Rights

Article 14: Equality before law

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

~Article 16: Equality of opportunity in matters of public employment

Article 17: Abolition of untouchability

Article 18: Abolition of titles

Article 19 (1): (a) freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

[Omitted]

(f) to practice any profession, or to carry on any occupation, trade or business.

Article 20: Protection in respect of conviction for offences Article 21: Protection of life and personal liberty

Article 22: Protection against arrest and detention in certain cases

Article 23: Prohibition of traffic in human beings and forced labour

Article 24: Prohibition of employment of Children in factories, etc.

Article 25: Freedom of conscience and free profession, practice and propagation of religion

Article 26: Freedom to manage religious affairs

Article 27: Freedom as to payment of taxes for promotion of any particular religion

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

~Article 29: Protection of interests of minorities

Article 30: Right of minorities to establish and administer educational institutions

Article 31C: Saving of laws giving effect to certain directive principles

Article 32: Remedies for enforcement of rights conferred by this Part

Article 33: Power of Parliament to modify the rights conferred by this Part in their application to forces, etc.

III. Directive Principles of State Policy Part - IV:

Article 38: State to secure a social order for the promotion of welfare of the people

Article 39: Certain principles of policy to be followed by the state; e.g. adequate means of livelihood, equal pay for equal work, ownership and control of material resources of the community to subserve the common good etc.

Article 40: Organisation of village panchayats

Article 41: Right to work, to education and to public assistance in certain cases

Article 42: Provision for just and humane conditions of work and maternity relief

Article 43A: Participation of workers in management of industries

Article 44: Uniform civil code for the citizen

Article 45: Provision for free and compulsory education for children

Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections

~ Article 47: Duty of the state to raise the level of nutrition and the standard of living and to improve public health

Article 48: Organisation of agriculture and animal husbandry

Article 48A: Protection and improvement of environment and safeguarding of forests and wild life

Article 49: Protection of monuments and places and objects of national importance

Article 50: Separation of judiciary from executive Article 51: Promotion of international peace and security

IV. Fundamental Duties (Part IVA) Article 51 A: Fundamental Duties

Some other Provisions

Article 226: Powers of High Courts to issue certain writs

Article 300A: Persons not to be deprived of property save by authority of law

Article 325: No person to be ineligible for inclusion in, or to claim to be, included in a special electoral roll on grounds of religion, race, caste or sex

Article 326: Elections to the House of the People and to the Legislative Assemblies of States on the basis of adult suffrage.

~Appendix VI

INDIAN LAWS RELATING TO HUMAN RIGHTS

The following is a list of some of the important national statutes which have a bearing on the promotion/protection of Human Rights.

1. Constitution of India (Preamble, Parts III,IV and IVA, Articles 226, 300A, 325, 326).

2. Protection of Human Rights Act, 1993.

‘The Act provides for the constitution of a National Human Rights Commission, State Human Rights Commissions, and Human Rights Courts for better protection of human rights’.

3. National Commission for Scheduled Castes and Scheduled Tribes.

‘Article 338 of the Constitution requires constitution of the National Commission for Scheduled Castes and Scheduled Tribes for better protection of the rights of the members of the Scheduled Castes and Scheduled Tribes’.

4. National Commission for Minorities Act, 1992.

‘An Act to constitute a National Commission for Minorities for better protection of the rights of the minorities’.

5. National Commission for Women Act, 1990.

‘Ac Act to constitute a National Commission for Women for better protection of the rights of women’.

~ 6. Protection of Civil Rights Act, 1955.

‘Under Article 17 of the Constitution, untouchability is abolished and its practice in any form is forbidden. By this Act, enforcement of any disability arising out of untouchability has been made an offence punishable in accordance with the relevant provisions’.

7. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

‘An Act to prevent the commission of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, for constitution of special courts for trial of such offences, and to provide relief and rehabilitation to the victims’.

8. Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.

‘Fraternity, assuring the dignity of the individual is one of the objects proclaimed in the Preamble to the Constitution. Article 47 requires the State to raise the standard of living and improve the health of the people. This Act has been enacted to achieve those objectives. It provides for the prohibition of all manual scavengers as well as construction or continuance of dry latrines and for the regulation of construction and maintenance of water-seal latrines’.

9. Immoral Traffic (Prevention) Act, 1956.

‘Article 23 of the Constitution prohibits traffic in human beings. On 9 May 1950, India ratified the International Convention for Suppression of Immoral Traffic in Women and Girls. This is an Act to give effect to the same’.

10. Indecent Representation of Women (Prohibition) Act, 1986.

‘An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures, or in any other manner’.

~ 11. Dowry Prohibition Act, 1061.

‘This is an Act to prohibit the evil practice of giving and taking of dowry’.

12. Commission of Sati (Prevention) Act, 1987.

‘Sati or burning or burying alive of widows or women is revolting to the feelings of human nature and is nowhere enjoined by any of the religions of India as an imperative duty. This is an Act for effective prevention of the commission of Sati and its glorification’.

13. Maternity Benefit Act, 1961.

“This is an Act to provide maternity benefits, etc., and to regulate employment of women in certain establishment for certain period before and after child birth’.

14. Child Marriage Restraint Act, 1929.

‘This was enacted with a view to preventing child marriages, namely, a marriage to which either of the contracting parties is under the specific age’.

15. Children (Pledging of Labour) Act, 1933.

‘An Act to prohibit the pledging of the labour of children and the employment of children whose labour has been pledged’.

16. Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960.

‘An Act to provide for the supervision and control of orphanages, homes for neglected women or children and other like institutions and to penalise criminal activities indulged in such institutions’.

17. Children Act, 1960.

‘An Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of children and for trial of delinquent children in the Union territories’.

~ 18. Child Labour (Prohibition and Regulation) Act, 1986.

“The Act bans employment of children in specified occupations and processes, lays down a procedure for inclusion in the schedule of banned occupations and processes and regulates the conditions of work of children in employments where they are not prohibited from working’.

19. Juvenile Justice Act, 1986.

‘An Act to provide for the care, protection treatment, development an rehabilitation of neglected or delinquent juvenile justice system’.

20. Young Persons (Harmful Publications) Act, 1956.

‘Pictorial and other publications containing stories of crime, violence, cruelty or incidents of repulsive or horrible nature and incite or encourage him to commit such acts. The Act seeks to prevent the dissemination of publications which are harmful to young persons’.

21. Caste Disabilities Removal Act, 1950.

‘The Act provides that when in a civil suit the parties belong to different persuations, the laws of the religions of the parties shall not be permitted to operate to deprive such parties of any property to which but for the operation of such laws, they would have been entitled’.

22. Mental Health Act, 1987.

‘The Act regulates determination of lunacy, reception, care and treatment of mentally-ill persons’.

23. Bonded Labour (System) Abolition Act, 1976.

‘Article 23 of the Constitution prohibits “begar” and other similar forms of forced labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. The Act provides for the abolition of bonded labour system to prevent the economic and physical exploitation of the weaker sections of the people’.

~ Some Other Important Statutes are the Following:

1. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

2. Medical Termination of Pregnancy Act, 1971.

3. The Transplantation of Human Organs Act, 1994.

4. Orphanages and Other Charitable Home (Supervision and Control) Act, 1960.

5. The SAARC Convention Suppression of Terrorism.

6. Environmental Protection Act, 1986.

7. Beedi and Cigarate Workers (Conditions of employment) Act, 1966.

8. Beedi Workers Welfare fund Act, 1976.

9. Trade Unions Act, 1976.

10. Industrial Disputes Act, 1947.

11. Workmen’s compensation Act, 1923.

12. Industrial Employment Standing Order Act, 1946.

13. Factories Act, 1948.

14. Employees State Insurance Act, 1948.

15. Minimum wages Act, 1948,

16. The Employees Provident Funds and Miscellaneous Provisions Act, 1952.

17. Apprentices Act, 1961.

18. Equal Remuneration Act, 1976.

19. Payment of Wages Act, 1936.

20. Weekly Holidays Act, 1942.

~Appendix VII

LIST OF HUMAN RIGHTS COVENANTS, CONVENTIONS AND TREATIES TO WHICH INDIA IS A PARTY

1. Convention on the prevention and punishment of the Crime of Genocide: Adopted by the General Assembly of the United Nations on 9 December 1948 by Resolution 260 (III). Entered into force on 12 January 1951. (India signed if on 29 November 1949 and ratified on 27 August 1959).

2. International Convention on the Elimination of all forms of racial discrimination: Adopted by the General Assembly of the United Nations in Resolution 2166 (XX) on 21 December 1965. Entered into force on 4 January 1969. (India signed it on 2 March 1967 and ratified on December 1968).

3. International Covenant on Economic, Social and Cultural Rights: Adopted by the General Assembly of the United Nations in Resolution 2200 (XXI) of .16 December 1966. (India’s accession deposited on 10 April 1979).

4. International Covenant on Civil and Political Rights: Adopted by the General Assembly of the United Nations in Resolution 2200 (XXI) of 16 December 1966. Entered into force on 23 March 1976. (India’s accession deposited on 10 April 1979).

5. Convention on the Non-Applicability of statutory limitations to war crimes and crimes against humanity: Adopted by the General Assembly

~ of the United Nations on Resolution 2391 (XXII) of 26 November 1968. Entered into force on 11 November 1970. (India’s acceded to it on 12 January 1971, with effect from 17 August 1977).

6. International Convention on the Superssion and punishment of the crime of Apartheid: Adopted by the General Assembly of the United Nations in Resolution 4068 (XXVIII) of 30 November 1973. Entered into force on 18 July 1976. (India’s accession dated 22 September 1977).

7. Slavery Convention, 1926: Entered into force on 9 March 1927. (India’s ratified it on 18 June 1927).

8. Supplementary Convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery, 1956: Entered into force on 30 April 1957. (India signed it on 7 September 1956 and ratified on 25 June 1960).

9. Convention for the suppression of the traffic in persons and of the exploitation of the — prostitution of others: Approved by the General Assembly of the United Nations in Resolution 317 (IV) of 2 December 1949. Entered into force on 25 June 1951. (India signed it on 9 May 1950 and ratified on 9 Janaury 1953).

10. Final Protocol to the Convention for the suppression of the traffic in person and of the Exploitation of the prostitution of others of 21 March 1950: Entered into force on 25 July 1951. (India signed it on 9 May 1950 and ratified on 9 January 1953).

11. Convention on the political rights of women: Adopted by the General Assembly of United Nations in Resolution 640 (VII) of 20 December 1952. Entered into force on 7 July 1954. (India signed it on 29 April 1953 and ratified on 1 November 1961).

12. Convention on the Nationality of Married women: Done at New York on 26 February 1957. Entered into force on 11 August 1958. (India signed it on 15 May 1957).

~ 13. International Convention against Appartheid in sports

14. Convention on the Rights of the Child

15. Convention on the elimination of all forms of Discrimination against women

~Appendix VIII

LIST OF HUMAN RIGHT COMMISSIONS AROUND THE WORLD

1. Algeria

National Overseer of Human

Rights

Palate DU People,

Franklin Roosevelt

Alger

Algeria, Pin - 16000

2. Austrialia

Human Rights and Equal Opportunity Commission Level 24, American Express Building

338 George Street Sydney NSW 2000, GPO Box 5218 Sydney NSW 2001.

3. Austria

Ombudsman (Volksanwalt) Austrian Ombudsman Board Singer Strasse 17, Vienna, Austria.

4. Benin

Benin’s Commission for Human Rights,

Bote Postau, 04-6607Cotonov, Benin.

5. Cameroon

National Commission on Human Rights and freedoms BP 20317, Yaounde Cameroom.

6. Canada

Canadian Human Rights Commission

Queen Street, Place De Ville, Tower A, 13th Floor, 320 Ontario Canada.

7. Central Africa

National Commission for Human Rights

Seminate St. Marc Bimbo Banqui, Central Africa.

8. Columbia Defender of the People Office of Defender of the People

Cincuenta Y. Cinco, 1046 Santa FE De Bogota Colombia.

9. Costa Rica

Defender of the Inhabitants of the Republic Sabana Norte, Del Ediflcio Dellce 125, Mts, Este San Jose Costa Rica- 12401007.

~ 10. El Salvador

Attorney for the Defence of Human Rights

Attorney’s Office for the Defence of Human Rights. 9A, Ave Norte:5A Calle Poniente 535 San Salvador El Salvador.

11. France

National Consulting Commission of Human Rights Saint - Dominique 35 Paris, France.

12. Geneva

Commission of Human Rights and Administrative Justice Old Parliament House-, Accra, Geneva.

13. Guatmala

Attorney of Human Rights Attorney’s Office of Human Rights Ave 12, Zona 1, 12-72. Guetmala.

14. India

National Human Rights Commission Sardar Patel Bhawan Sansad Marg, New Delhi.

15. Ireland Ombudsman

Office of the Ombudsman St. Stephens Green 52, Dublin, Ireland.

16. Italy

Commission for Human Rights of the Presidency of the Council of Ministers Pala 220 Chigi- Pla 22a Colonna 7, 370 Rome,

Italy.

17. Japan

Civil Liberties Bureau, Ministry of Justice Kasumigaseki Chiyoda - KU 1-1-1 Tokyo, Japan Pin-100.

18. Mexico

National Commission for Human Rights Periferilo Sur 3469 Mexico, Distrito Federa Mexico, Pin-10200.

19. Morocco

Consulting Board for Human Rights Place ACH - Chouhada – Bas Laalou, Rabat

Morocco, Pin-10,000.

20. Netherlands

Advisory committee on Human Rights and Foreign Policy of the Netherlands Post Box 20061 2500 EB The Hague The Netherlands.

21. New Zealand Chief Commissioner Auckland

P.O. Box 6751 Wellesley St. Auckland, Aotearoa New Zealand.

22. Northern Ireland

Standing Advisory Commission on Human Rights Royal Ave. 55 Bel Fast Northern Ireland.

~ 23. Pakistan

Human Rights Commission of Pakistan 13, Sharif Complex Main Market, Gul Berg II Lahore, Pakistan.

24. Phillipines

Philippine Commission on Human Rights 1 BB Building Bona Julia Vargas Ave, Manila Philipines.

25. Senegal Ousmane Camara Mediator of the Republic Ave, F, Roosevelt Anglo N. Mandela Boite Postale Dakar, Senegal - 6434.

26. Slavenia

Council of Human Rights and Fundamental Freedoms Tom Slceva 5 L Jublijana Slovenia.

27. Spain

Defender of the People Office of Defender of the People Eduardo Dato 31, Madrid, Spain.

28. Sweden

Ombudsman against Ethnic Discrimination The Office of Ombudsman against Ethnic Discrimination Birger Jaris Torg 7, Pidda R Holmen, Stockholm Sweden.

29. Tanzania

Permanent Commission of Enquiry Saroma Ave, P.O. Box 2643 Dar £s - Salaam Tanzania.

30. Tunigia

Superior Committee of Human Rights and Basic freedoms Ave De La Liserte 8.5 Tunis, Tunigia.

31. Uganda

Inspector General of Government Office of the Inspector General of Government Kitante Road 67-75 Kampala, Uganda.

~Appendix IX

LIST OF INDIAN NGOs IN THE FIELD OF HUMAN RIGHTS

1. Andaman & Nicobar lsland

1. Human Rights Society Diary Farm Post-Junglighat Andaman & Nicobar

II. Human Rights Society Post Box No. 554, Port Blair Andaman & Nicobar Pin-744103.

2. Andhra Pradesh I. A.P. Civil Liberties

Committee H. No. 5-96-8, Behind Church Compound Guntur

Andhra Pradesh 52202. II. Foundation for Legal Aid Environment and Social Action D. No. 5-61-16, 2/18 Broadipet, Guntur Andhra Pradesh.

III. Association for Women’s Right Manalagir Guntur Dist Andhra Pradesh 522503

IV. APCLC21-5-409, Puran Pal Gate, Hyderabad Andhra Pradesh-500264.

3. Assam

I. Human Rights Organisation Lakimpur P.O. Singarband Dist - Cachar, Assam.

II. Manab Adhikar Parishad Naojan Road, Uzan Bazar Guwatti, Assam, Pin-781001.

III. All Bodo Christian Co-ordination Committee Allen Brook Dream Villa Jorpukhui, Gawahati Assam.

4. Bihar

I. Human Rights Association 169, Patilputra Colony Patna, Bihar Pin-800013. II. Human Rights Wing

Vaidehi Samiti, Darbhanga

Bihar,

Pin-846004.

III. The Human Rights Association of Bihar

Boring Road

Patna,

Bihar-80003.

IV. Manavi Sinha Kutir Mahesh Nagar Patna

Bihar.

~ V. Kosi Lok Maneh (KLM)

At - Battaraha (Near Lathan Choudary Colony) Dist - Saharsa

Pin-852201 Bihar.

VI. Kosi Seva Sadan (KSS)

Mahishi Block, Acharyavan Dist – Saharsa Bihar-852216.

VII. Samudaya Ashyana,

Village – Rusera Dist – Samastipur Bihar-848210.

5. Delhi

I. The Human Rights Trust 204, Ghalib Apartments Parwana Marg, Road 42 Pittam Pura Delhi-110034

II. Centre of Concern for Child Labour 247, Akashdarshan Appartments Mayur Vihar Phase-I Delhi-110009.

III. Human Rights Trust Chamber No.-10, Civil Wings, Tis Hazari Court Delhi-110054.

IV. Mahila Uthan Samiti House No. 4F, Pocket Mayur Vihar, Phase-I, Delhi.

V. National Centre for Protection of Human Rights B-2/63, Safdarjung Enclave New Delhi-110029.

VI. South Asian Coilation Against Child Servitude (SACCS) L-6, Kalkaji, New Delhi-110019.

VII. PUDR

D-l, Staff Quarter Indraprastha College Delhi.

VIII. PUCL

81, Sahayoga Appartments Mayur Vihar, Phase-I, Delhi-110091.

6. Goa

I. Citizens Committee for Civil Liberties and Democratic Rights

The Book Shop near Civil Court

A Hinho Mapusa, Goa Pin-403507.

7. Gujrat

I. Dakshin Gujrat Manav Adhikar Manch

C/O Legal Aid Centre Besides Krishimangal Jayaprakash Narayana Road Surai, Gujrat-395001.

II. Prem Pushpa

28, Anand Colony Bhu, Kachch Gujrat-370001.

8. Himachal Pradesh

I. People’s Action for People in need Renuka Dist. - Sirmour Himachal Pradesh.

II. Society for Rural Development and Action Thaltukhar Dist – Mandi Himachal Pradesh-176122

9. Jammu & Kashmir

I. People’s Union of Civil Liberties

The Bund Aira Kadal 1st bridge, Srinagar J&K-190001.

~ II. A11J&K Sikh Unity Forum H.O. Ward No. 1, Simbas, Tech R.S. Pura Jammu, J & K.

10. Karnataka

I. Human Rights Association 103, 2nd Floor

Old Madras Road Ulboor Bus Stand, Bangalore Karnataka-56008.

II. Akhil Karnataka Dr. Ambdkar People Organisation Jarnuraja Nagar (TA) Mysore district

Karnataka-571313.

III. Dalit Voice 109 7th Cross Place Tower Orchards, Bangalore Karnataka. 11. Kerala

I. Kerala State Human Rights Protection Vedi Konat House, College Road Palghat, Kerala, Pin-678001.

II. People’s Council for Social Justice

Appu Soudhans, Ravipuram Road, Valanjam Balam, Kochi Kerala-682016.

III. The Centre for Human Rights Legal Aid and Research T.C. 2/3 123, Court view Nagar Vanebiznor, Thiruvananthpuram Kerala.

12. Madhya Pradesh

I. Manavadhikar Samrakshan Sangathan Urmila Bhawan Near Shiv Mandir Mahamoi-ka-Bagh Bhopal, Madhya Pradesh.

II. Human Rights Foundation of India F 4/4 Professor Colony Bhopal, Madhya Pradesh-462002.

III. People’s Union of Civil Liberties Malipuram P.O. Ernakulam Dist Kerala-682511.

IV. Dr. Ram Manmohar Lohia Sewa Ashram Lundra Village & Post - Babauli Dist - Surgwa Pin-497101 Madhya Pradesh.

13. Maharashtra

I. Human Rights and Civil Protection Committee 349,Jaikisan Wadi Jalgaon

Maharashtra-425001. II. Indian People’s HRC 104, Centre YMCA 12, N. Parika Marg, Colaba Bombay,

Maharashtra-406005. III. Institute of Human Rights Jari Patika Nagpur Maharashtra-440014.

14. Manipur

I. Committee on Human Rights RMC Road South Lala Mbuns Makhons Imphal, Manipur.

II. PUCL

Uripok Turgbam Leikai Imphal

Manipur-795001.

15. Nagaland I. Naga People’s Movement for Human Rights Kohima Nagaland.

~ 16. Orissa

I. Human Rights World Peace Foundation

Plot No. 4/237, IRC Village Bhubaneswar, Orissa. II. Nay a Sahayak Samiti Sriram Niwas Pujariput, Koraput Orissa-764020.

III. One World Foundation 26, Cantainment Road Cuttack, Orissa-753001.

IV. Ganatantrika Adhikar Suraksha Sangathana Patra Sahi, Station Bazar Cuttack, . Orissa-753003.

V. Manabik Adhikar Sangathan (MAS) 2/23, Sabarsahi Lane Bhubaneswar, Orissa-751006.

VI. Ramarajya S.C.I.I. Road Koraput, Orissa-764020.

VII. PUCL

B.B. Street Parala Khemnundi Orissa-761200.

17. Punjab Movement Against State Repression 314, Sector 44A, Chandigarh Punjab-160047.

18 Rajasthan

Human Rights Observers Group Jhalawar Rajasthan-32600.

19. Tamilnadu I. Organisation for Civil and Democratic Flights 7, Krishnaji Road Timpattur Northacrot, Tamilnadu-635601.

II. PUCL

21, Tamil Street Padmanabha Nagar Madras Tamilnadu-600094.

III. Societal Development Trust 10, Birds Road Cantonment, Tirachy Tamilnadu-626001.

IV. Muslim Jamat Committee Thulukarpet Tamilnadu-627101.

V. Centre for People’s Movement J-146 MMDA Colony Arumbakkam Madras, Tamilnadu.

VI. Human Rights Protection Organisation l/A-8, Railway Line, New Street Gidengcl, Tindivanam Taluk Tamilnadu.

VII. Human Rights Education Movement of India 46, Main Road (Butt Road) St. Thomas Mount, Madras Tamilnadu-600016.

VIII. A Citizen’s Association for Rights and Duties (CARD) No. 4, Kuppuswamy Road Madras, Tamilnadu-600031.

IX. Society for Conm Organisation Trust (Soco Trust) Justice Bhagawati Bhawan Cake View Road K.K. Nagar Madurai Tamilnadu-625020.

X. Citizen’s Association for Rights and Duties, CARD 64, American Street Catnolil Centre, Madras Tamilnadu-60001.

~ XI. Social Justice Security Movement 44, Sabramaniyan Street Nelvayul Road Dreamboor, Madras Tamilnadu-60011.

XII. Gudalur Fanner’s Association Post Box No. 8, Gudakir Bazar Gudaker Tamilnadu-6532’2.

XIII. Indian People’s Front 36, Rakluappan Street Mylapore, Madras Tamilnadu-60004.

20. Uttar Pradesh

I. Global Watch of Human Rights and Democracy Rose Building U.P.-202001.

II. Human Rights Wing 2/1-A Sir P.C. Bannerji Road Allahabad, U.P.-211002.

III. PUCL

Durga Prasad Khaitan Marg Padrauna, U.P.-274304.

IV. National Environment and Forest Protection Society

125, Manas Nagar, Agra U.P.-282010.

V. Ankur Foundation

45, Sheo Chaman Lal Road Allahabad-211003

Uttar Pradesh.

VI. Swami Vivekananda Shiksha Samiti (SVSS) Sankatna Ghat, Bundelkhandi Dist - Mirzapur Uttar Pradesh-231001.

VII. Gramodaya Sansthan 129-A, Sujat Ganj Shy am Nagar, Kanpur, Uttar Pradesh-208013.

21. West Bengal I. Indian National Social Action Forum

P.D. Domohani Bazar Burdwan West Bengal-713334.

II. Humanity Protection Forum Gautam Nagar, Maheshtala 24, Parganas West Bengal-793352.

III. PUCL

11-C, Nasiruddia Road Calcutta West Bengal-700017.

IV. Human Rights Cell Institution for Motivating Self-employment

244 Jodhpur Park 2nd Floor Calcutta West Bengal-700068.

V. PUCL

47, Moti Jheel Avenue Dum Dum, Calcutta West Bengal-700074.

~Appendix X

AN OUTLINE OF THE INDIAN PRISONS BILL, 1996 as proposed by the National Human Rights Commission

Never before in its history, prison administration was a subject of such a public criticism, judicial indignation and legislative scrutiny as at present. Since independence, several expert committees, appointed by the Government of India, have unequivocally emphasised an urgent need for a thorough reorganisation of the prison system to come in tune with the modern criminological and penological thinking and to effectively cater to the changed and changing demands, for the society in transition. In this context, the rationalization, revision and consolidatin of prison laws is long overdue. The present outline of the proposed Indian Prisons Bill, 1996 is intended to achieve this purpose.

Taking up this issue, the National Human Rights Commission prepared an outline of the Indian Prisons Bill, 1995, which was circulated among State Governments and Union Territory Administrations for their comments, suggestions and observations. The ouline was further discussed at the National Conference on Human Rights in Prisons, convened by the Commission on 14 November, 1995. The

Conference recommended the setting up of a Core Group for the finalisation of the outline of the proposed Bill. In its meetings held on 30 and 31 January and on 22 and 23

~ February, 1996, the Core Group crystallised its views on various Chapters of the outline as given hereinafter.

Statement of Objective and Reasons

The proposed Prisons Bill, 1996 may have the following objects and reasons:

— to bring in a ‘basic uniformity in matters relating to the administration of prisons and managements of prisoners in the country.

— to lay down the framework and criteria for a sound and safe custody and reformative treatment of prisoners.

— to rationalise prison system to cater effectively to various categories of prisoners.

— to provide for minimum standards of services for the care, protection, treatment, education, training and welfare of prisoners.

— to devise such procedures for the handling of prisoners as are compatible with human dignity and consistent with prison security, safe custody and maintenance of discipline.

— to differentiate institutional treatment of prisoners in keeping with their personality traits, behavioural patterns, and custodial and correctional requirements.

— to lay down mechanism for coordination between prison administration and other components of the criminal justice system.

— to ensure the availability of such services from other public departments as are essential for an effective management of prisons.

— to forge constructive linkages between prison programmes and community-based governmental and non-governmental resources for the rehabilition and social reintegration of offenders.

~ Preamble

The preamble of the proposed Bill may be constructed as under:

— “to provide for the detention of persons committed to prison custody and for their reformation and rehabilitation”.

Chapterisation

The proposed Bill envisages the formulation of a basic legal framework for the governance of persons in the country. Within a uniform structure, the detailed rules and regulations may be formulated by State Governments and Union Territory Administrations and incorporated in their respective Prison Manuals.

Chapter I: Preliminary

This chapter may contian title, extent and commencement of proposed Bill, and definitions of various terms to be used therein. While the terms to be defined may be specified when the proposed Bill is finally drafted by the Legislative Department, the same may include the definitions of such terms, as, ‘prison’, ‘prisoner’, ‘court’, ‘magistrate’, ‘offender’, ‘offence’, ‘civil prisoner’, ‘undertrial prisoner’,

‘military prisoner’, ‘habitual offender’, ‘family’, (for the purposes of stay in open camps), ‘young offender’, etc.

Chapter II: Rights and Duties of Prisoners

The All India Committee on Jail Reforms, 1980-83, had recommended that a separate chapter on rights and duties of prisoners may be contained in the ensuing law, as under:

— Right to human dugnity; to be treated as ‘person’; and non-deprivation of funamental rights other than what are

~ taken away of restricted by incarceration, as spelt out in the relevant chapters.

— Right to basic minimum needs; adequate diet; health and medical care; clean and hygienic living conditions; and proper clothing, bedding and equipment.

— Right to communication; contact with family members and authorised persons, subject to security requirements.

— Right to access to law, and speedy trial. Side by side, the following duties of prisoners were recommended by the Committee:

— to obey lawful orders and instructions.

— to abide by prison rules and regulations.

— to maintain prescribed standards of cleanliness, hygiene and prison discipline.

— to respect human dignity of fellow prisoners, prison staff and others.

— to refrain from making false or exaggerated allegations.

— to abstain from hurting religious feelings, beliefs, and faiths of others.

— to use government property with care and not to damage or destroy negligently or wilfully.

— to assist prison authorities in the performance of their duties.

— to preserve and promote correctional environment and to be responsive to it.

Chapter III Institutional Framework

The proposed Bill may adequately provide for the diversification of institutional resources to cater to the differential requirements of prisoners in terms of custody and correction. The factos

~ to be considered may include age, sex, legal status of the prisoner, nature of crime, length of sentence, security requirement, state of health and correctional needs. Such a course implies the setting up of separate institutional facilities for different categories of prisoners, such as:

— prisons/annexes/yards for undertrial prisoners.

— maximum security prisons/annexes/yards for security risk prisoners and habitual or hardened offenders.

— medium security prisons/annexes/yards for non-habitual adult offenders.

— semi-open or open prisons and open camps.

— prisons/annexes/yards for women prisoners.

— prisons/annexes/yards for young offenders.

— prisons/annexes/yards for those suffering from infectious diseases.

— prisons/annexes/yards for mentally ill prisoners.

— prisons/annexes/yards for drug addicts.

— Mobile camps for prisoners sentenced for less than one years.

— Prisons for those courting arrest during non-violent sociopolitical and economic agitations for a declared public cause.

— Sub-jails.

State Government may be required to establish a mechanism for the classification of prisoners to be housed in various types of institutions as enumerated above and to lay down the procedure to be followed in their respective Prison Manuals. They may also specify the authorised population for each type of institution and norms with regard to area/space for prisoner as well as number of prisoners to be housed in an association barrack as suggested to Model Prison Manual. This may also include norms for the

~ creation of facilities for education, vocational training, work programmes, socio-cultural activities, liberary and recreation both indoor and outdoor as also for the staff to be appointed in each type of institution. Aprt from various types of prisons for specific categories of prisoners, State Government may be authorised in the proposed Bill to create temporary prisons to deal with emergent situation.

Chapter IV Organisational Structure

In this chapter, State Government may be required to set up the Directorate of Prisons and Correctional Services at the State Headquarters, under the Director-General/Inspector-General of Prisons and Correctional Services, with the provision of the following staff to assist him:

— Such number of Additional/Deputy Instpectors-General of Prisons as the need be for administration, inspections, supervision, programme development, and staff training and welfare.

— Separate units for correctional programmes, prison industries and vocational training, agriculture/horticulture, planning, research and evaluation, probation and after care, and audit and accounts, each under a senior officers.

— A viligance and public grievance cell under a senior officer,

— A legal cell under a senior law officer,

— A Public Relation Officer,

— A prison building cell under a senior engineer,

— A statistical, officer for an on-going collection, interpretation and presentation of factual information and data with computer back-up,

— A Deputy/Assistant Inspector-General of Prisons for women, preferably a women officer.

~ — Supporting staff for various units and officers as per the requirements of the State.

Bigger states with heavy prison population may be provided with a regional set-up, as per their requirements, consisting of:

— Deputy/Assistant Inspector General of Prisons,

— Probation and after care officer,

— Audit and Accounts officer,

— Engineer, Building

— Supoorting staff.

The institutional organisation in the state may be based on the specific requirements of custody and correction, including:

— Superintendent of Prison to be assisted by Additional/ Deputy/Assistant, Superintendents of Prisons as per the requirements,

—’ Custodial staff including Chief Head Warders, Head Warders, Warders and other security personnel,

— Resident Medical officer with supporting staff including that for deaddiction as per requirement,

— Correctional staff including specialists from various relevant disciplines,

— Law Officer with necessary subordinate officers and supporting staff,

— Adequate number of techinical instructors,

— Adequate number of teachers,

— Accounts, Officers/Assistant Account Officers/Accountants as per the requirement,

— Agriculture Officer/Assistant Agriculture Officer as per the requirement,

— Statistician for each jail having a population of 500 or more,

~ — Ministerial and other supporting staff including cooks, barbers, washermen, electricians, pump operators, etc., as per the requirements.

The probation and after care unit may be provided at the District level to be instrumental in the rehabilitation and social reintegration of prisoners, under a District Probation Officer with adequate number of Probation Officers and supporting staff.

Separate institutions for women prisoners may be run only by the female staff, while annexes and yards for women prisoners may be directly supervised by the female staff only.

The proposed Bill may provide for the Staff Governments to lay down norms for the provisions of staff at various levels for an effective discharge for theie duties so as to secure an efficient functioning of prisons.

The chapter may also have specific provisions for the duties of various personnel including their

responsibility towards the protection of the rights of prisoners.

Chapter V Maintenance of Prisoners

The proposed Bill may clearly specify that prison administration has to deal with prisoners in conditions compatible with human dignity. This would require the formulation of a set of minimum standards to be detailed out in the State Prison Manuals. The proposed Bill may accordingly make suitable provisions for a humane handling and upkeep of prisoners on the following lines:

— State Governments may be required to work out definite norms for accommodations of prisoners. Apart from determining the authorised population for each institutions, area/space per prisoner to be provided in living barracks, work sheds and hospitals may be indicated in the proposed Bill on the lines enunciated in the Model Prison Manual, as under:

~ In sleeping barracks, 50 square feet of ground area, 500 cubic feet of air space and 12 square feet of lateral ventilation.

In cells, 96 square feet of ground area, 966 cubic feet of air space and 21 square feet of lateral ventilation.

In hospitals, 70 square feet of ground area and 700 cubic feet of air space.

The Bill may further make it mandatory for State Governments to determine in their rules, norms for the provision of latrines, bathrooms, educational classes, vocational training centres, receational activities, libraries, open spaces for games etc. As recommended by the All India Committee on Jail Reforms, 1980-83, the following provisions may be specifically made:

One latrine for every six prisoners. One bathrooms for every ten prisoners.

Hospital accommodation on the basis of 5% of the daily average inmate population in all Central and District Jails.

— State Governments may be required in the proposed Bill to formulate scales of clothing, bedding and equipment for men and women as well as for child dependents (upto 5 years of age) in keeping with the requirements of various seasons and geographical areas. The children of women prisoners may be provided clothing by the prison administration, if they can not afford from their own sources. Similarly, undertrail prisoners who can not arrange their own clothing may have to be served by the prison administration.

— The proposed Bill may lay down the responsibility of the prison administration to create adequate facilities for medical care and treatment of prisoners. Besides establishing hospitals within prisons the proposed Bill may provide for the referral of seriously ailing prisoners including those suffering from infectious diseases, mental ailments or addiction to drugs, to outside governmental

~ and non-governmental treatment centres. The proposed Bill may specifically provide or arrange, besides hospital beds within the prison, for an ambulance for every prison.

— While protecting the right of prisoners to communication, the proposed Bill may require State Governments to make rules for the number of letters and interviews to be granted to prisoners in a month, with a provisions for the Superintendent of prison to allow as many letters and interviews as he may deem fit in the interest of prisoners. Interviews may be conducted with full respect to prisoners right to privacy by keeping them within sight but not within hearing, unless there are reasons to do otherwise. Prisoners may be allowed legal interviews with their lawyers. However, the Bill may uphold the power of the Superintendent of prison to impose in individual cases any restriction in these matters in the interest of security. The proposed Bill may also prescribe the procedure for taking searches of prisoners and their visitors.

— The proposed Bill should clearly lay down a ban on the confinement of non-criminal lunatics in prisons.

— The proposed Bill may provide the every prison having 10 children may establish a creche/nursery. Where the number of dependent children is less than 10, arrangements for a creche/nursery may be made in conjunction with some non-governmental organisations.

— As recommended by the All India Committee on Jail Reforms, 1980-83, only two scales of food in terms of labouring and non-labouring diet may be prescribed in the proposed BIll. However, special diet may be provided on medical ground and for pregnant mothers and dependent children (upto 5 years of age) in prisons.

— The proposed Bill may lay down the responsibility of the prison administration to ensure a proper management of

~ the kitchen with modern equipment, ventilation and place to eat under hygienic conditions. The kitchen should be so equipped as to ensure that no person is subjected to any hazardous condition.

— The responsibility of the prison administration in ensuring an adequate water supply for drinking, bathing, washing, etc., may be made mandatory. Similarly, a continuous supply of electricity may also be ensured with a provision for an alternate arrangement in the event of its failure.

— The proposed Bill may require the prison administration to ensure a proper severage system to maintain the requisite level of sanitation and hygiene including arrangements for garbage collection and its removal. For every prison having an authorised population of more than 200 prisoners, there may be a provision for mechanized laundry.

— In every prison having an authorised population of 200 prisoners or more the provision of a canteen may be provided in the proposed Bill.

— The proposed Bill may empower the Director-General/ Inspector-General of Prisons to directly request in any emergent situation involving security of prisons as well as of prioners any other department to provide facilities or services essential for the maintenance and unkeep of prisoners. On receipt of such a request, it may be the duty of the department concerned, to make all possible efforts. Similarly, the responsibility of the Superintendent of prison to seeek assistance from other department during any natural calamity such as flood, epidemic, etc., may be laid down in the proposed Bill.

— The proposed Bill may require that every prison may have upto five non-official visitors attached to it. The non-official visitors may be appointed from amongst retired

~ criminial justice functionaries, social scientists and eminent public-spirited individuals. Such prison visitors may be appointed by the Director-General/Inspector-General of Prisons on the recommendations of District Magistrates/Superintendents of Police.

Chapter VI Undertrial Prisoners

An indiscriminate confinement in prisons of person accused of various offences has emerged as a major issue of human rights in the recent years. Despite a new thrust having been given towards a speedy disposal of cases in courts and the liberalisation of bail system, the proportion of undertrial prisoners has been increasing over the years. As person undergoing trials in the courts are to be presumed innocent till they are found guilty, their legal status inevitable warrants a differential handling and treatment in jail. It is, therefore, necessary that the proposed Bill may contain specific provisions to protect the rights of undertrial prisoners, as under:

— It may be the responsibility of the prison administration to send a periodic report to the District

Judge/District Magistrate on ad cases of undertrial prisoners pending for 2 months in the prison.

— The proposed Bill may clearly lay down that for every jail adequate strength of police personnel with appropriate and sufficient transport facilities, be provided for escorting undertrial prisoners during their production before courts, treatment in outside hispitals or transfer from one institution to another.

— The proposed Bill may provide that the cases of all such undertrial prisoners who have completed half of the maximum sentence to be awarded on possible conviction may, under intimation to the District Magistrate, be referred to the concerned Court for consideration of release on personal bond.

~ — Such cases of undertrial prisoners who were granted bail by courts but could not produce sureties for 2 months may be referred to the concerned Court for consideration of release on personal bond. For this purpose, the trial court may be required to send copies of the bail orders to the Superintendent of prison.

— The instrument of restraint such as handcuffs and irons may be used on undertrial prisoners only in exceptional circumstances in the interest of security on the ground to be recorded in writing by the officer concerned.

— It will be the responsibility of prison administration to send the details of such cases of undertrail prisoners who need free Jegal aid to the Free Legal Aid Cell for necessary assistance.

— The proposed Bill may contain that no food or article other than wearing apparel may be allowed from outside to undertrial prisoners except in accordance with the rules.

— For the purpose of a quarterly review of undertrail cases pending in courts, a committee consisting of District Sessions Judge as Chairman, District Magistrate, Superintendent of Police, Prosecution Officer and Probation Officer as members and the Superintendent of Prison as Member-Secretary may be constituted in each District and the procedure to be followed may be prescribed the rules. The quorum will be three including the Chairman. The meeting shall be held in the jail premises or as decided by the Chairman.

— The proposed Bill may incorporate a provision to allow undertrial prisoners to receive vocational training or to engage in productive work as available in the prison, on a voluntary basis. Adequate incentive may be provided to them for productive work by way of remuneration as prescribed in the rules.

~ Chapter VII Institutional Treatment

The proposed Bill may provide for all the basic elements of and the procedure to be adopted for institutional treatment of prisoners in keeping with the objective of imprisonment. Within the overall framework of sound custody, the institutional programme is required to be geared towards the reformative and rehabilitative goal. In this respect, the Bill may contain the following provisions:

— The procedure to be followed on admission may include the placement of a prisoners in a Reception Unit with adequte facilities for study, orientation and induction into the institutional programme. Each prisoner on arrival may be medically examined and his state of health be duly recorded in case of a women by a lady doctor. Besides a detailed medical report, the file may include prisoner’s photograph and background information from the police. During observation, the prisoner may be subjected to a programme of social education, some purposeful occupation and exercise and recreation.

— Each convict sentenced to one year or more may be thoroughly studied and diagnosed in terms of his/her personality traits, behavioural pattern and socio-economic background for the purposes of institutional treatment, with the help of specialists. Every Central of District prison of class I or II may have on the staff Welfare Officer/Asistant Welfare Officer appointed on the basis one such officer for every 200

prisoners, so as to provide for a specialised input in the study and diagnosis process.

— Apart from the segregation of prisoners on the basis of their legal status, age, sex (male, female and eunuchs), health and security, all prisoners sentenced to imprisonment of one year or more may be scientifically classified into homogenous groups for the purposes of institutional treatment. Classification of prisoners may be based on a

~ thorough study of the offender as an individual, understanding of the sequence of his/her criminal behavior and the problems presented by him/her. A Classification committee may be set up in each prison with Superintendent of prison as Chairman and Medical Officer/Assistant Medical Officer and other speciliasts drawn on it. The initial classification may be followed by a periodic review of each case for reclassification as and when found necessary.

— Welfare officer/Assistant Welfare Officer with the assistance of other specialists may be responsible for providing individualised counselling and guidance to prisoners so as to secure their adjustment within the institutional setting and a positive participation on their part in various reformative and rehabilitative programmes. A differential approach may be adopted towards the adjustment problems and correctional requirements of women and young offenders.

— A diversified programme of education may be introduced in prisons to cater to the varied requirements of different categories of prisoners. The educational programme should cover all the aspects of physical, academic, socio-cultural and moral development. Besides imparting education within prisons, appropriate linkages may be established with the educational facilities in the otuside community, so as to secure an integration of prison education into the mainstream of the educational system. The necessary manpower, facilites and equipments including libraries may be provided in prisons.

— A comprehensive programme of vocational training may be organised for prisoners. While in case of convicts sentenced to rigorous imprisonmen work will be mandatory, it may be optional for other categories. For this purpose, adequate staff, equipment and material may be

~ provided by the State Government concerned. The Classification Committee may plan training projects for prisoners ‘selected on the basis of aptitude tes and vocational guidance. A set of minimum standards may be adopted to regulate training projects in conjunction with State Technical Education Departments’. All categories of convicts may be engaged in productive work. Undertrial prisoners may be encouraged to work through adequate incentives by way of wages/remunerations. While prison labour may not be allowed to be hired by private employers, appropriate linkages may be established with outside industries in developing vocaional training and work programmes in prisons. The work programme may be diversified to meet the varied needs and abilities of prisoners and be adopted to the requirements of the labour market in the free community. A priority attention may be given to developing such work programmes as are directly conducive to the economic rehabilitation and self-reliance of prisoners when they return to the free community. All prisoners engaged in productive work may be provided incentive in the form of wages by way of reasonable remuneration. Work conditions may conform to the accepted safety measures, hours of work, exemptions, shifts, rest days, compensation, etc. Though prisoners have no right to wages, a uniform system may be evolved for the purpose as an incentive for productive work and a rehabilitative device. Apart from engaging prisoners in various industries and vocations, prisoners may be employed in essential services and maintenance work in prisons. Prisoners may be placed on extra-mural work at the discretion of the Superintendent.

— All prisons may undertake well-planned cultural and recreational activities for prisoners both as an incentive for good behaviour and a means for the inculcation of healthy social values. Facilities for spiritual and moral development may also be uniformly provided. Both in-

~ door and outdoor games may be organised in prisons with due regard to the requirements of security.

— The support of the community may be purposefully availed of in strengthening the correctional,

reformative and rehabilitative content of prison programmes. Appropriate linkages may be established with community-based governmental and non-governmental organisations concerned with the welfare of prisoners.

— Prisoners may be constructively involved in all measures pertain to their self-management and self-improvement, without passing on them such administrative responsibilities as legitimately belong to the prison staff.

Chapter VIII Prison Discipline

Discipline in prisons has to be maintained with fairness and firmness. It has to cover every aspect of life in the prison. A punishment for indiscipline has to be balanced in relation to the gravity of the violation. A positive approach towards prison discipline involves not only a strict adherence to rules and regulations but also a fair just and equitable handling of prisoners on the part of the staff. Accordingly, the proposed Bill may clearly spell out the acts constituting prison offences and the punishment against such acts as well as a sound mechanism to deal with them, on the following lines:

— After their admission, all prisoners may be informed of their rights, duties and disciplinary requirements in the prison in a language understandable to them. This aspect may be displayed on a board accessible to prisoners.

The following and such other acts as may be specified from time to time may be deemed as prison offences:

Endangering the security and custody of a prison in any way through a wilful or negligent act;

~ Doing any act calculated to create any unnecessary alarm in the minds of other prisoners.

Doing or omitting to do any act with intent to cause to himself any illness, injury or disability;

Omitting to report any prison offence, Offending against law and order and discipline,

Planning, instigating, abetting directly or indirectly in the commission of any prison offence,

Refusing or omitting or conniving to abide by standards of behaviour, rules and regulations, lawful instructions and orders;

Failing to assist in the maintenance of prison discipline,

Failing to give assistance to a prison official when called upon to do so,

Making any complaint against prison officials, written or oral which is proved to be false, malicious or groundless,

Committing nuisance or mischief or any sort.

Quarrelling with prisoners,

Smoking at places or at times other than appoint.

Attacking or assaulting or causing gross personal violence;

Participating in a riot or mutiny, abetting another prisoner to riot or mutiny,

Escaping or attempting to escape from prison or legal custody or failing to report to prison officials about attempted escape,

Possessing, hiding, smuggling or attempting to smuggle, obtaining, giving, or receiving or bartering contraband articles, failing to report to prison officials about contraband articles;

~ Stealing, damaging, destroying, disfguring misappropriating any prison property or prisoners’ articles and property.

Failing to report at once any loss, breackage or injury which the prisoner may accidently have caused to prison property or implements.

Tampering with or defacing identity cards, records, or documents,

Breaches of the conditions of leave and special release; Refusing to eat food or going on hunger-strike;

Eating or apportioning any food not assigned to him or taking from or adding to the portions assigned to other prisoners,

Wilfully or negligently destroying or spoiling food on throwing it away without orders,

Introducing into food or drink anything likely to render it unpalatable or unwholesome or dangerous for human consumption,

Cooking unauthorisedly,

Violating rules and regulations framed for the orderly running of canteen,

Bartering canteen articles,

Being idle, careless or negligent at work, refusing to work, malingering, disturbing other prisoner at work on in barracks,

Manufacturing any article without the knowledge or permission of a prison officer,

Performing any portion of the task allotted to another prisoner or obtaining unauthorized assistance of another prisoner in the performance of his task,

Apportioning to any prisoner any part of the task performd by another prisoner,

~ Mixing or adding any foreign substance to the materials issued for work, Wilfully/disabling himself from labour.

Converting or attempting to convert a prisoner to a different religious faith, Wilfully hurting others’ religious feelings, beliefs or faith.

Agitating or acting on the basis of caste or religious prejudices,

Having any communication, in writing or by word or by signs without permission with any outsider undertrial prisoners, prisoners of different class detenus, civl prisoners, approvers and other prisoners.

Sending messages surreptitiously by writing or speech.

Participating or organizing unauthorised activities like gambling etc.

Using indecent, abusive, insolent, threatening or improper language; being disrespectful, making

indecent or vulgar acts or gestures,

Soiling or befouling any place or article,

• Loitering or lingering, leaving the appointed area or work-group without permission. Failing to assist or preventing other person from assisting prison officials in suppressing violence, assault, riot, mutiny, attack, gross personal violence or any other emergencies.

The proposed Bill may provide for the punishment of such offences in the following manner:

(i) A formal warning: To be personally addressed to a prisoner by the Superintendent and to be recorded in the Punishment Book but it may not be treated as punishment.

(ii) Forfeiture of remission:

(a) The Director-General/Inspector-General may be em-

~ powered to:

Forfeit all earned remission except State Government remission,

Remove a prisoner from remission system for a specified period or during prisoner’s whole term of imprisonment;

(b) The Superintendent may be empowered to:

Order forfeiture of remission upto a maximum period of thirty days at one time,

Remove a prisoner from the remission system upto a period of six months;

(c) When a prisoner escapes from legal custody, the total remission earned by him upto the date of escape may stand cancelled,

(d) When a prisoner attempts to escape from lgal custody or plans or abets escape, the question of revoking his entire remission may be referred to the Inspector-General for orders,

(e) If a prisoner has been punished during the quarter otherwise than by a formal warning, following action should be taken.

If a prisoner is punished for bad conduct and if the violation was a minor one, one day may be cut from his monthly remission for good conduct; if the violation was of serious nature, he/she may not be awarded the remission for good conduct for that month.

If the prisoner has been punished for a minor violation related with work, one day’s remission may be cut for each offence from his monthly remission for work. If the violation is serious, he/she may not be granted monthly remission for work for that month.

~ (iii) Recreational facilities: The Superintendent may be empowered to award the punishment of stoppage of recreational facilities upto a maximum period of one month.

(iv) Canteen facilities: The Superintendent may be empowered to stop canteen facilities upto a maximum period of three months at a time.

(v) Interviews. The Superintendent may be empowered to stop interviews upto a period of one month.

(vi) Wages: Where a prisoner wilfully or negligently spoils production or damages Government property, the Superintendent may be empowered to:

(a) Cut the prisoner’s wages upto a maximum of 50% of wages earned during a month.

(b) Deny 50% of. the wages for the work done upto a maximum period of three months with the approval of Director-General/Inspector-General of Prisons.

(vii) Trnasfer to special ward or another prison:

The Superintendent may with the approval of Director-General/Inspector-General of Prisons transfer a prisoner to special ward or another prison as a punishment. This punishment may be awarded to prisoners who are persistently violating prison discipline.

When the punishment of transfer to another prison is awarded, a Nominal Roll alongwith a statement of details of the offences and punishments may be sent to the Superintendent of the other prison and copy to the Direc-tor-General/Inspector-General for issuance for formal transfer order.

(viii) Fatigue work: Subject to medical advice, the Superintendent may order fatigue work for thirty minutes a day upto a maximum period of seven days.

~ (ix) Forfeiture of unauthorised cash, currency, other articles, etc.: The Superintendent may be authorised to forfeit to Government cash, currency, other articles, etc, found in the possession of the inmates.

(x) Punishment for breaches in the conditions of leave: The Superintendent may be authorised to inflict punishment for breaches and violations in the conditions of leave as shown below:

(a) Not counting leave period towards sentence and treating it as out-period,

(b) Cut in remission upto five days for each day of overstay, provided that where the prisoner has not sufficient remission to his credit, he/she may cease to earn remission in future for such period as the Superintendent may direct,

(c) Postponement of the next due leave upto a period of two years.

In case of armed forces prisoners, the orders’ of the concerned armed forces authority will be obtained.

(ix) Segregation: The Superintendent may be empowered to award this punishment for a maximum period of three months at one time. Under sanction of the Inspector-General, this punishment can be extended upto six months.

Prisoners kept in segregation yard may be confined in barracks/cells from lockup to opening. At other times, they may remain in earmarked places only,

They may work in the verandah in front of the cell/ barrack during prescribed work hours,

Exercise for one hour in the morning and one hour before lockup may be allowed,

Letters, interviews, books and newspapers may be al-

~ lowed as per rules,

Except soap and other hygienic requirements, all other canteen facilities may be withdrawn,

Grant of remission may be subject to close review of the prisoner’s work and behaviour during the period of segregation,

Prisoners undergoing this punishment may not be released on leave during the period of this punishment.

(xii) Separate confinement: The Superintendent may be empowered to award the punishment of separate confinement upto one month at one time. Under the sanction of the Inspector-General this punishment can be extended upto three months.

Where a separate exercise area is attached to each cell, the inmate may be allowed exercise facilities for one hour each time in the morning and evening. If a separate exercise block is not attached to each cell, inmates undergoing this punishment may be taken out one by one at prescribed times for exercise, forty-five minutes in the morning and forty-five minutes in the evening.

If bath and w.c. facilities are not attached to the barrack/ cell, inmates confied in the cells may be taken out one at a time for bathing and other purposes. They may not be allowed to communicate or congregate during such periods.

Except for periods as mentioned above, the prisoner may be confined in the cell. Food should be served in the cell.

The following concessions may be extended to prisoner undergoing this punishment:

(a) Letters as per rule,

(b) Interviews with family members and relatives may be granted in the discretion of the Superintendent provided

~ he thinks that such interview will have a salutary effect on the conduct and behaviour of the inmate,

(c) Religious and moral books and religious pictures may be allowed as per rules.

(d) Work may be given in the cell at the discretion of the Superintendent.

Remission may not be granted for the period of separate confinement.

No prisoner may be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority may conduct an inquiry into the case. No prisoner may be punished except in accordance with the terms of law or regulaion.

No prisoner may be punished twice for the same offence, provided that any security measure (separate confinement, fetters, etc.) taken for the safe custody of a refractory and dangerous prisoner or for preventing him from committing mischief or the stoppage of privileges which are otherwise admissible to well behaved prisoners only, may not be construed as prison punishment for this purpose.

The punishment of separate confinement or fatigue work may not be implemented unless the Medical officer has examined the prisoner and certified in writing that he/she is fit to sustain it. The same rules may apply to any other punishment that may be prejudicial to the physical or mental health or a prisoner.

The Medical Officer may daily visit prisoners undergoing any such punishments and may advise the Superintendent, if he/she considers the termination or alteration of the punishment necessary on the ground of physical or mental health.

If a prisoner is guilty of an offence against prison discipline which, by reason of his having frequently committed such offences or otherwise, in the opinion of the Superintendent is not adequately punishable by infliction of any prison punishments,

~ the Superintendent may send a statement of the circumstances, along with the prisoner concerned to the court of a Magistrate, having jurisdiction for being dealt with by way of summary trial and imprisonment upto six months.

In respect of offences committed or abetted by prisoners which are punishable both under the Indian Penal Code or the proposed Bill or any other criminal law, it may be discretionary wit the Superintendent either to use his own powers of punishment as set forth in rules or to prosecure the offender before a Magistrate, provided that in the case of cognizable offences having a punishment above three years, a prosecution shall be initiated.

The proposed Bill may require the formulation of detailed rules for the holding of enquiries and for the segregation of the prisoner pending enquiry, medical examination in the case of an injury, informing the prisoner of the charge against him, conduct of the enquiry, recording of statements and the decision arrived at, and an opportunity for any appeal or revision.

If any condition on or subject to which a sentence has been suspended or remitted or release on leave or special leave is granted is in the opinion of the authority exercising such power, not fulfilled, such authority may cancel its order granting such suspension, remission or release on leave or special leave, and there upon the person in whose favour such order was made may, if at large, be arrested by any Police Officer without warrant and remanded to undergo the unexpired portion of his/her sentence.

If any prisoner fails without sufficient cause to observe any of the conditions on or subject to which his/her sentence was suspended or remitted, or release on leave or special leave was granted to him/her, he/she may, on conviction, be punished (such punishment being in addition to any punishment which such prisoner was undergoing when he committed such offence) with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees, or with both. No court may take cognizance of an offence under this provision

~ except with the previous sanction of the State Government or the authority which granted suspension or remission of the sentence.

The Superintendent may be made responsible to undertake effective measures to ensure safe custody and security of prisoners, including the use of handcuffs and fetters in keeping with the directives of the Supreme Court of India. In an emergent situation the Superintendent may be empowered to use handcuffs and fetters for reasons to be recorded in writing under intimation to the Magistrate concerned within 48 hours. Similarly, the confinement of a prisoner in a separate cell may also be restored to in the interest of custody and security.

In order to evolve a suitable mechanism for grievance redressal, a Discipline Committee may be set up in the jail under the chairmanship of the Superintendent with Deputy Superintendent, Medical Officer/Assistant Medical Officer drawn on it. Such a committee may meet atleast once a month to review grievances, petitions and representations from prisoners.

The proposed Bill may be required the formulation of detailed rules for maintenance of the physical and mental health of prisoners sentenced to death, facilities for appeal and petition for mercy and action to be taken on confirmation and execution of death sentence. It should be the responsibility of prison administration to provide for the necessary legal assistance to prisoners sentenced to death at various stages.

In view of the specific nature of the tasks to be performed by the prison staff, it is necessary that the proposed Bill clearly lays down their accountability towards the duties and responsibilities assigned to them. Every official of the prison who is found guilty of any violation of duty or wilfully breach or neglect

of any rule or regulation or lawful order made by competent authority or who withdraws from the duties of his office without permission or without having given previous notices in writing of his intention or who wilfull) overstays without permission any leave granted to him or who engages without authority in any employment other than prison duty or who shows cowardice or who is found guilty

~ of any cruel, inhuman or degrading treatment of the prisoner under his/her charge, may be made liable on conviction before a Magistrate to fine not acceding Rs. 1,000 or to imprisonment for a period not acceding 3 months or to both.

The proposed Bill may prohibit the formation of unions, strikes and agitations by prison personnel.

Chapter IX Transfer, Removal and Attendance in Courts

As the porposed Bill aims at consolidating various prison laws, the provisions of the Transfer of Prisoners Act, 1950, and the Prisoners (Attendance in Courts) Act, 1955, may be appropriately incorporated in this chapter. While transferring or removing prisoners from one prison to another whether within and outside the State or producing them before the concerned courts, the welfare interest of prisoners may be kept in view. In this respect the new provisions may clearly lay down that:

On arrival in the prison from police custody or on transfer, every prisoner, even if he/she comes after lockup, may be medically examined. The State Government may be required to make necessary arrangements for this purpose.

For the treatment of prisoners suffering from infectious diseases, mental ailments, addiction to drugs, serious sickness, injuries or sudden health problems, the proposed Bill may require State Governments to identify and declare referral hospitals both in the governmental and non-governmental sectors.

A provision may be made for the transfer of a prisoner from one prison to another within the state on administrative, medical or humanitarian grounds. Such a transfer may be affected with the approval of the Inspector General of Prisons under intimation to the concerned court. The basis of transfer may be recorded in writing.

In order to facilitate the transfer of prisoners from a particular state to the State of his origin or on security grounds, the proposed

~ Bill may lay down the procedure for consultation between the States at appropriate levels. In the case of a prisoner being transferred to the State of his origin, the Inspector-General of the Prisons may be authorised to ensure the consent of the receiving State. In case of a prisoner being transferred from one State to another on security grounds such consultation may take place at the level of Secretaries of Home Departments of the States concerned.

In respect of prisoners to be transferred to the countries of their origin, the specific provisions of the bilateral agreements or treaties with the countries concerned may be followed by the prison departments.

While the Superintendent has to ensure the appearance of a prisoner for trial or evidence as and when required by the concerned Court, the existing provisions for the exemption from attendance of certain prisoners in courts may be appropriately incorporated in the proposed Bill. A provision may also be made for the trial of high security prisoners within the prison in the interest of security and public order, on a selective basis.

Chapter X Leave and Sepcial Leave

A variety of systems exist in States in regard to leave or special leave for prisoners during the

period of imprisonment in the form of parole, ticket leave, furlough, etc. With a view to bringing in a basic uniformity in these matters, especially as an incentive for good behaviour and responsiveness to correctional treatment, the proposed Bill may provide for common framework for the release of a prisoner on leave or special leave on the following lines:

A prisoner may be entited to leave of 21 days in one or two spells during a year on the completion of half of his/her sentence or a minimum period of 3 years of imprisonment, whichever is less. Such a leave may be earned by a prisoner on the basis of his/ her rood behaviour and conduct in the prison.

~ In the case of a prisoner to be granted leave, the application for leave may be sent to the concerned District Magistrate and the Superintendent of Police for comments before it is placed before the Inspector General of Prisons for consideration. If no comment is received from the District Magistrate and the Superintendent of Police within 3 weeks, it may be presumed that threre is no adverse opinion to be offered by them and the recommendation of the Superintendent of jail may be considered by the Inspector General of Prisons. For the subsequent leave, the Superintendent of Jail may be empowered to grant leave on the basis of the conduct of the prisoner during the previous leave without any consultation with the concerned District Magistrate or the Superintendent of Police. Leave availed of by a prisoner may be counted towards his/her imprisonment.

Special leave may be granted to a prisoner for amaximum period of 14 days on a specific ground of death, marriage, sickness or any other sufficient cause in his/her family. Special leave may be granted to a prisoner on the recommendation of the Superintendent of Jail by the Inspector General of Prisoners under intimation to the concerned District Magistrate and the Superintendent of Police, so as to facilitate the prisoner to attend the emergency in his/her family. Special leave granted to a prisoner may not count towards his/her imprisonment.

If the prisoner on leave or special leave fails to maintain good behavior and peace and other conditions specified in relevant order, the order of leave or special leave may be revoked by the competent authority.

The following categories of prisoners may not be eligible for being released on leave:

(i) Prisoners whose presence is considered dangerous or otherwise prejudicial to public peace and order by the District Magistrate/Superintendent of Police;

(ii) Prisoners who are considered dangerous, or who have been prosecuted for serious prison violation like assault.

~ outbreak, riot, mutiny, escape, instigation to serious violations, strike, etc.;

(iii) Prisoners transferred to special prisons on disciplinary grounds for the period of their incarceration in such prisons;

(iv) Prisoners committed to prisons in default of furnishing security to keep the peace or be of good behavior;

(v) Prisoners suffering from unsoundness of mind.

In case of prisoners government by any of the laws relating to armed forces of the Union and having separate mode of trial, these provisions of leave and special shall be subject to their laws.

Chapter XI Remission and Premature Release

Remission is a concession granted to prisoners as an incentive for good behavior and work. It is not a right as the same can be withdrawn forfeited or revoked by the competent authority. All prisoners undergoing a substantive sentence of 3 months or more may be entitled to the grant of remission. However,

the grant of remission has to be based on an objective criteria for the assessment of prisoners’ conduct. Accordingly, the system may be standardised on the following lines.

The types of remission may include ordinary remission, special remission and State Government remission. While ordinary remission is to be granted to all eligible prisoners for any special remission may be considered on a selective basis to deserving prisoners for any special service, achievement or conduct. The State remission may be awarded by the Government concerned to such prisoners or categories of prisoners as decided from time to time.

Prisoners eligible for earning ordinary remission may include:

(i) Prisoners having substantive sentence of three months or more.

~ (ii) Prisoners fulfilling the conditions as mentioned in (i) above, but who are unable to participate in institutional activities because of factors beyond their control such as court attendance or frequent transit from one prison to another or admission as indoor patients in a hospital, including mental-hospital, may be granted ordinary remission at the scale earned by the prisoners during the previous month, provided their conduct during the period in question has been good. If the inability referred to above arises soon after admission, ordinary remission at minimum scale should be given.

(iii) In case of prisoners who fulfil conditions mentioned at (i) above and who are admitted in hospital as indoor patients or during the periods of their convalescence, ordinary remission may be granted subject to certification by the Medical officer regarding their bona fides.

(iv) Prisoners fulfilling conditions mentioned in (i) above and who have been certified by the Medical Officer as invalid or infirm.

(v) Habitual prisoners should be granted remission under circumstances to be specified in rules.

(vi) Prisoners working on conservancy jobs irrespective of the length of their sentence.

(vii) Prisoners sentenced to simple imprisonment of three months and more and who volunteer to work.

(viii) Ordinary remission can be earned throughout a period of imprisonment in lieu of fine which immediately follows and is continued with a substantive sentence of not less than three months.

Ordinary remission may be granted at the following scale:

(i) for good behavior, discipline, interest, effort and participation in institutional activities three days per completed calender month.

~ (ii) for performing allotted work at prescribd standards — three days per completed calender month.

(iii) for conservancy jobs — two days per month. This remission should be in addition to remission as stated in (i) and (ii) above.

(iv) any prisoner eligible for ordinary remission should be awarded fifteen days’ annual good conduct ordinary remission in addition to any other remission provided that he/she has committed no prison offence whatever for a period of one year reckoned from the date of his/her sentence or. the date on which he/she was last punished for a prison offence.

Special remission may be granted by the Inspector General of Prisons upto 60 days in a year and by the Remission Committe upto 30 days during a year. The Discipline Committee of the prison may function as the Remission Committee for this purpose.

The total remission to be granted to a prisoner may not exceed one-half of the sentence undergone for the purposes of getting released.

Remission may be forfeited by the State Government, the Inspector General of Prisons and the Superintendent under circumstances to be specified in rules.

The review of sentences provides the necessary flexibility to the determinate/definite sentencing system under the law. It serves as a mechanism for release of a prisoner at a stage considered most appropriate for his/her reintegration into society. Premature releases are effected under section 432 of the Cr.P.C. which in certain states, is further spelt out under special laws. Under the Constitution of India the President and the Governor have an overriding power in this regard. There is, however, a need to bring in a basic uniformity and consistency in the operation of the relevant laws, rules and regulations governing premature releases, as under:

~ Review of sentences may be considered by a Review Board to be presided over by the Director-General/Inspector-General of Prisons with the District Magistrate, District Judge, the Superintendent of Police and two social workers/social scientists drawn on it. The recommendations of the Board may be sent to the State Government for orders. The procedure to be adopted may be prescribed in rules.

The case of a prisoner suffering from any serious disease and about whom civil surgeon and the prison medical officer certify that in all probability the prisoner is not likely to survive may be submitted to the Government for being reviewed for conditional or unconditional release.

Chapter XII Release and After-care

From the viewpoint of his/her rehabilitation and social reintegration, the release of a prisoner has to be preceded by a careful planning for his/her smooth transition from the closed institution to the open community. The process involves prerelease preparation, after-care and follow-up of prisoners on an individualised basis. It certainly requires a systematic programmes on the following lines:

A separate yard may be earmarked in each prison for the organisation of a pre-release programme to reorient those to be released shortly and to prepare them for their post-release adjustment. The programme may address the specific problems and challenges to be faced by individual prisoners in the communities they are expected to return to. This may require a variety of inputs including counselling, guidance and referral to appropriate agencies.

The Welfare Officer/Assistant Welfare Officer may have to play a key role in the assessment of individual needs and mobilisation of necessary resources both from inside and outside the prison to help prisoners to overcome situation likely to impede their social readjustment.

~ Each prison may set up a mechanism to maintain a regular contact with community-based after-care organisations and to draw upon them as per the individual needs of prisoners being released.

A periodic review of releases may be undertaken by the Superintendent of jail. The concerned Superintendent of Police and Probation Officer may be given adequate prior notice of the date and time of releases.

A scheme for rehabilitation assistance in deserving cases may be introduced by the prison department with adequate provision made in the jail budget. Side by side, specific schemes with other departments which can help prisoners in availaing training, equipment, capital, marketing facilities, etc., may be identified and utilised in individual cases.

The prison department may work closely with organisations offering after-care facilities, both in the governmental and nongovernmental sectors. Deserving cases may be referred to them for such assistance as found necessary on an individualised basis.

Appropriate linkages may be established between the prison department and voluntary welfare oganisations, to mobilise resources for the rehabilitation and social reintegration of prisoners, especially for women and young offenders being released from

prisons.

Chapter XIII Open Institutions

Experience has shown that many prisoners after undergoing certain period of their institutional treatment are fit to be placed in open, semi-open and community-based mobile camps. The success in the experimentation with open institutions has not only opened up an important avenue towards a progressive classification of prisoners but has also bridged the gap between the closed institution and the open community. However, the functioning of and operations in open institutions need to be standardised on a

~ uniform basis as indicated below:

Only such prisoners whose behaviour and progress in closed institutions is found good and are fit for regime based upon trust, responsibility and self-discipline should be considered for transfer to open, semi-open or community-based mobile camps.

The Classification Committee may be used as a mechanism for the screening of cases for semi-open or open institutions or community-based mobile camps.

A set of minimum standards may be prescribed for a semi-open or open institutions or a community-based mobile camp in terms of accommodation, equipment, care, education, training and welfare of the inmates. The inmates of open institution or community-based mobile camps may be granted enhanced remission at the rate of one day for every day spent therein. Similarly, the wages for inmates in open institutions or mobile camps may be fixed at par with wages in the open community with such deductions as considered necessary for their maintenance.

The work programmes in open institutions or community-based mobile camps may, as for as possible, be linked with national development projects or private industries, on a selective basis.

The inmates of open institutions or community-based mobile camps may be liberally allowed letters, interviews, family visits and stay of their families without undermining institutional security and discipline.

A priority attention may be given to the welfare of inmates in open institutions in conjunction with community-based organisations.

If a prisoner transferred to an open institution or community-based mobile camp fails to abide by the requisite standard of discipline, self-management and work, he/she may be liable to be reverted back to the closed institution to undergo the remaining

~ period of his/her sentence.

The staff for semi-open or open institutions or community-based mobile camps may be carefully selected in keeping with the aptitude, talent, commitment, initiative and dedication required to run such innovative projects. The State Government may provide adequate incentives to the staff employed in open institution or community-based mobile camp. Employment in such a setting may be considered as an added qualification for promotion to higher ranks.

The sale proceeds in a semi-open or open institution or community-based mobile camp may be allowed to be plounghed back into the development of prison industries with the necessary accounting procedure being introduced in the jail budget.

Chapter XIV Staff Development

It is universally accepted that the success of institutional programmes depends mainly on the quality, calibre and competence of the staff. However, the staff position in most of the states, whether quantitatively and qualitatively, is reported to be unsatisfactory. Besides the need to attract the requisite talent to the prison service, it is essential to keep the prison staff abreast of new trends and patterns of criminality.

Therefore, a concerted approach towards staff development has to become an integral part of the legal framework that regulates prisons. In this context, the proposed Bill may provide as under:

The staffing pattern may be thoroughly restructured to cater effectively to the requirements of both custody and correction. This implies the provision of all the components of the staff at various levels as spelt out in the chapter on institutional organisation.

In order to maintain the necessity level of morale, discipline and efficienty of the prison staff, only persons possessing the

~ requisite aptitude and attributes maybe appointed on various posts in the prison department. Each State Government may be required to formulate a recruitment and selection policy that meets the demands of the jobs to be performed at various levels.

For the custodial staff at the institutional level, the Superintendent maybe empowered to serve as the appointing and promoting authority for Warders, Head Warders and Chief Warders. The Inspector General of Prisons may be the appointing and promoting authority for Assistant Superintendents, Deputy Superintendents and Superintendents. The correctional staff may be recruited and promoted by a Selection Board to be presided over by the Inspector General of Prisons with specialists from the relevant disciplines drawn on it.

No person may be placed on a job in the prison department without an intensive training of at least 6 months. Every State may be required to set up a training institution with the necessary staff and equipment for imparting initial training and in-service training. While the initial training of the Superintendent of Prison may spread over 9 months, the subordinate staff may be provided with a 6 months training.

All the categories of prison staff may be given in-service refresher training at least once in 5 years, so as to keep them abreast with the newly emerging problems and requirements of prison administration.

Each state may set up a mechanism for a periodic review of the service conditions of the prison staff, including their salaries, allowances, housing conditions, education of children, transport facilities, promotional avenues working hours, leave etc. Apart from maintaining the principal of equal pay for equal work with the personnel of other government departments, the special nature and the hazards in the prison work may be kept in view. Each State may develop a cadre of prisons and correctional services at the appropriate level in keeping with the specialised nature of the jobs to the performed. A system of reward, recognition and appreciation for the meritorious services rendered by the

~ prison personnel may be introduced in every State.

A welfare fund for prison personnel may be created in every state so as to maintain the requisite morale of the prison service as also to render a timely assistance to a member of the staff in the any calamity or distress.

Chapter XV Special Categories of Prisoners

Within the overall framework of institutional care, certain categories of prisoners are in need of a

specialised treatment. These categories may include women offenders, military prisoners, adolescent offenders, if convicts, habitual offenders, simple imprisonment prisoners, military prisoners sentenced to death, civil prisoners and lunatics. A occused attention on the correctional needs of such categories may be provided in the proposed Bill on the following lines:

Apart from ensuring a complete segregation and a differential management of women prisoners under the supervision of female staff, the proposed Bill may require State Governments to formulate a comprehensive scheme for the care, protection, treatment, education, training and development of women prisoners in keeping with their personal characteristics and rehabilitation needs.

Adolescents may be segregated from adults in prisons and given a concerted attention in terms of their’ educational, training and rehabilitation requirements. The State Government may work out a comprehensive scheme in this regard.

Life convicts may be subject to a programme of long term institutional treatment with an opportunity for their transfer to semi-open or open institutions or community-based mobile camps.

Habitual offenders may be classified to focus on a thorough study of their personality traits and correctional requirements and to provide them with a differential set of such programmes as are conducive to their mainstraming.

~ Simple imprisonment prisoners may not only be separated from other prisoners and handled in a differential manner but may also be given adequate incentive to engage in productive work and healthy recreation.

While military prisoners may not ordinarily be admitted in prisons, whenever received, may be confined in central prisons in segregated manner and be given such facilities as are necessary to maintain their physical and mental health.

Special precautions may be taken in ensuring adequate security and upkeep of prisoners sentenced to death, with a special consideration to their safety, health and legal rights.

Civil prisoners, as and when received in jails, may be segregated from other undertrials and sentenced prisoners and allowed to meet their basic requirements of food, clothing, bedding, etc., from their own sources, or from the decree holders and treated like undertrial prisoners with regard to other matters in the prison.

While non-criminal lunatics may not be lodged in jails, criminal lunaics may be sent to mental hospitals for treatment, as early as possible, as per the procedure to be prescribed in the rules. Pending their removal to mental hospitals, special care may be taken to maintain their human dignity and security.

Chapter XVI Miscellaneous

This chapter may cover general aspects of prison administration and its development. This may include, among others, the following:

An Advisory Board for the development of prisons and allied correctional services may be set up in each state under the Chief Secretary with members from various concerned governmental and non-governmental organisations and individual experts. Such a Board may meet half-yearly and advise the government on relevant issues.

~ Steps may be taken by State Governments to integrate correctional programmes in prisons with development schemes of the Central and State Governments as part of the national planning.

The educational and vocational training programmes in prisons may be periodically reviewed and updated in keeping with the standards adopted by the concerned state departments in the open community

so as to ensure their recognition and continuation even after the release of prisoners, if necessary.

The State Governments may be required to formulate detailed rules to implement the provisions of the proposed law. The specific items of such rules may be indicated on the finalisations of the draft of the proposed Bill.

~Appendix XI

Comments/Suggestions of the NHRC on the draft Long Term Action Plan (2000-2005) for Implementation of the National Policy on Older Persons

The programmes prepared under the Action Plan by various Ministries are general in nature. They are to be more specific and focused to be taken up within a feasible time frame.

The Action Plan should make a distinction between short-term and long-term programmes. Out of the programmes suggested, programmes which are important and of immediate benefit to the aged need be segregated, and taken up within a specified time frame for execution.

While schemes like ADHAR are being taken up for the senior citizens, there is need for simplifying the procedures and ensuring easy access to the schemes.

The Inter-Ministerial Committee should meet at least once in 3 months. Periodic review by the State Governments may also be taken up.

Although Panchayats, NGOs and other non-governmental agencies and institutions are proposed to be involved, in what manner they are to be involved is not specified in the Action Plan by the Ministries.

Priority need be given for the aged within all the existing schemes taken up by all Ministries, especially the Ministry of Rural Development and Employment, Ministry of Social Justice and Empowerment. All district Rural Development agencies may be given necessary directions by the Government of India to ensure priority for the aged within all schemes, which are being implemented by the agency.

Review of all existing schemes by all Ministries with a view to facilitate implementation of all welfare measures for the aged.

~ In addition to the other steps suggested by the Ministry of Railways, easy facility for getting in and out of railway compartments for the senior citizens may be taken up by redesigning the steps at the entry/exit of railway compartments.

Since a majority of the aged live in villages and their environment and problems are different from the urbanised, the schemes for rural poor may be segregated, and taken up on priority.

Benefits under the social security schemes like old age/ destitute pensions do not reach the old people in the villages on time. Steps may be taken for streamlining implementation of the scheme in consultation with the State Governments. Implementation could be taken up through Panchayats and responsible NGOs.

Many of the old people amongst the tribals are displaced from their own land due to land alienation (indebtedness being the main cause). Priority for old people among the tribals in the disposal of land alienation cases could be considered.

Priority may be given to aged amongst the people displaced by Mega projects while considering their rehabilitation.

Special employment/self-employment schemes in the rural areas for the aged in conformity with

their age, need and capacity may be taken up by the Ministry of Rural Development.

The Ministry explore the possibility of involving the Cooperative Sector for taking up/earmarking appropriate Schemes and implementing them through the existing/functioning multi purpose Cooperatives, including Primary Agriculture Cooperatives (PACs) and Large Area Multi Purpose Cooperative Societies (LAMPS) in tribal areas for eligible persons above the age of 65.

Suitable number of houses may be earmarked for the aged under the housing schemes for poor in the rural sector especially under the Jawahar Gram Samaridhi Yojana (JGSY) being implemented by the District Rural Development Agencies on the guidelines issued by the Rural Development Ministry.

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