The National Human Rights Commission presents a puzzle that no summary of NHRC powers and functions resolves on its own. The Commission is created by an Act of Parliament. It inquires into complaints with all the powers of a civil court trying a suit. Its chairperson must have held the highest judicial offices in the country, and its members are appointed by the President of India on the recommendation of a committee chaired by the Prime Minister. Yet when an inquiry ends, the Commission cannot order anyone to do anything. It recommends. A government that receives its recommendation for compensation, for prosecution, or for reform may accept it, qualify it, delay its answer, or decline it, and the statute gives the Commission no instrument with which to punish the refusal. The standard explanation for this gap is political: the body is called a toothless tiger, a retirement posting, a shield for the state. This article argues that the explanation sits one level too high. The Commission’s weakness is not primarily a failure of will in the persons who have staffed it. It is the predictable output of four specific design choices written into the Protection of Human Rights Act, 1993, and a reader who can name those four choices can assess any proposed reform by asking the only question that matters, which of the four it actually touches.

The four choices are these. Section 18 of the Act makes the Commission’s conclusions recommendations rather than orders, so its strongest formal act is a reasoned request addressed to the very government whose servants it has investigated. Section 19 withdraws the armed forces from its ordinary inquiry procedure and substitutes a report called for from the Central Government itself. Section 36(2) bars the Commission from inquiring into any matter more than a year after the alleged violation, a limitation period far shorter than the time most victims take to reach a national body. And the Act creates no investigative service of the Commission’s own, so that inquiries into police conduct are staffed by police officers drawn from the forces under examination, under Section 14’s permission to use the officers and agencies of the very governments complained against. Each choice was defended when made, and each defence is set out in this article at full strength. But together they explain the institution better than any theory of capture, because they operate regardless of who holds office. The design is in the statute; the consequences are in the record.

The Statutory Basis and Mandate of the NHRC

The Commission is a creature of the Protection of Human Rights Act, 1993, which is Act 10 of 1994 in the statute book, because the legislation began as an ordinance promulgated on 28 September 1993 and the Act that replaced the ordinance received assent in January 1994 with retrospective effect from the ordinance date. The Commission itself was constituted on 12 October 1993, within a fortnight of the ordinance, a speed that tells its own story about the pressure under which the institution was created. India in the early 1990s faced sustained international scrutiny of its human rights record, particularly in Punjab and in Jammu and Kashmir, and the government of Prime Minister P. V. Narasimha Rao presented the new body as evidence that the country possessed domestic machinery adequate to answer that scrutiny. The Act is treated in full, provision by provision, in the companion account of the Protection of Human Rights Act 1993 as a statute, and this article concentrates on the institution the Act built and on what that institution can and cannot do.

The timing had an international frame as well as a domestic one. The Paris Principles, the agreed international standards for national human rights institutions, were adopted at an international workshop in Paris in October 1991 and endorsed by the United Nations General Assembly in its resolution 48/134 of 20 December 1993. The Principles require a national institution to be independent of government, to have a mandate as broad as possible set out in a constitutional or legislative text, to be composed pluralistically, to be adequately funded, and to be free to consider any question falling within its competence. The Indian Act was framed in the shadow of those standards, and the institution’s entire later history, including its repeated accreditation reviews, consists of the distance between the Paris template and the Indian text being measured by outsiders. That measurement, examined later in this article, is the strongest evidential spine the subject offers, because it is an external audit against published criteria rather than a domestic political argument.

The mandate itself is defined by two provisions. Section 2(1)(d) defines human rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India, the covenants being the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The definition matters because it ties the Commission’s jurisdiction to enforceability: the body is not a general ombudsman for every injustice but a watchdog for a specified class of rights. Section 12 then lists the functions. The Commission may inquire, on its own motion or on a petition by a victim or by any person on the victim’s behalf, into a complaint of violation of human rights or abetment of such violation, or of negligence in the prevention of a violation by a public servant. It may intervene in any proceeding involving an allegation of violation of human rights pending before a court, with that court’s approval. It may visit any jail or any other institution under the control of a state government where persons are detained or lodged for treatment, reformation or protection, in order to study the living conditions of the inmates and make recommendations. It may review the safeguards provided by the Constitution and by law and recommend measures for their effective implementation, review the factors, including acts of terrorism, that inhibit the enjoyment of human rights, study treaties and international instruments, promote research and human rights literacy, and encourage the efforts of non-governmental organisations working in the field. Two features of this list deserve emphasis. The inquiry function is directed at public servants, which is why the Commission’s docket is dominated by the police, the prisons and the security establishment rather than by private wrongdoing. And the promotional functions, which occupy much of the Commission’s working life, are the functions for which its deemed members, drawn from the other national commissions, formally sit.

The mandate’s international face follows from the same list. The function of studying treaties and international instruments and recommending on their effective implementation makes the Commission a standing domestic interlocutor of the treaty system, and it has used the position in the manner the Paris Principles contemplate: it prepares its own independent submissions to the Universal Periodic Review of India before the United Nations Human Rights Council, distinct from the government’s national report, and it comments on India’s reports to the treaty bodies. This reporting function is easy to dismiss as ceremony, and it is in fact one of the channels through which the Commission’s domestic files acquire external weight, because the findings it records in New Delhi are the findings its representatives may place before the Council in Geneva so long as its accreditation holds. The connection runs both ways, and it is why the accreditation story told later in this article is not a diplomatic footnote but a working part of the institution’s equipment: the mandate assumes an audience abroad, and the grade decides whether the Commission may address that audience by right.

Why 1993 Produced This Design and Not a Stronger One

The design choices that limit the Commission were made in a particular season, and they read differently once the season is reconstructed. India had no national human rights institution before 1993. What it had was a constitutional court system that had developed public interest litigation into a powerful instrument, a press that reported custodial abuse aggressively, and a record in Punjab and in Kashmir that drew sustained criticism in international forums, in the reporting of international human rights organisations and in the human rights assessments of foreign governments. The World Conference on Human Rights at Vienna in June 1993 adopted a declaration that encouraged every state to establish or strengthen a national institution for the promotion and protection of human rights, and within months of Vienna the Indian government moved, first by ordinance and then by Act. The sequence is the context in which the design must be read. The institution was created to be shown to the world as much as to be used at home, and a body created substantially for demonstration will be built to be credible in composition and safe in consequence: eminent in who sits on it, complete in what it may examine, and carefully limited in what it may do to the government that created it. That is not an accusation against the founders’ sincerity, several of whom plainly intended a serious institution. It is an observation about which risks a government legislating under international scrutiny is willing to run, and the risks it ran were reputational rather than operative.

The legislative route taken underlines the point. The government legislated first by ordinance, promulgated on 28 September 1993, and the Commission was constituted on 12 October 1993, before the replacing Act had completed its passage; the Act followed as Act 10 of 1994, effective from the ordinance date. Speed of that order is unusual for the creation of a permanent institution, and it produced a body whose scaffolding had to be built while it was already receiving complaints. The Act as enacted also carried a territorial qualification that later constitutional changes overtook: its application to the State of Jammu and Kashmir was confined to matters in the State List and the Concurrent List of the Seventh Schedule, an early sign that the institution’s reach was negotiated against the sensitivities of the very territories where its work would be most scrutinised. A legislature intending an unqualified watchdog does not usually begin by qualifying the watchdog’s territory, its tenure of complaint and its access to the armed forces in the first draft. The four constraints examined in this article were not oversights discovered later by disappointed reformers. They were the terms on which the institution was permitted to exist, and the three decades since have amended its membership, its tenure and its procedures without disturbing any of the four, which is the strongest evidence that the terms still command the consent, or at least the acquiescence, of the Parliament that could change them.

Composition of the NHRC After the 2019 Amendment

Who sits on the Commission determines much of what it can credibly do, and the composition has been altered twice in ways that changed the institution’s character. As enacted in 1993, the Commission consisted of a chairperson who had been Chief Justice of India, one member who was or had been a Judge of the Supreme Court, one member who was or had been Chief Justice of a High Court, and two members appointed from among persons having knowledge of, or practical experience in, matters relating to human rights. In addition, the chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes and Scheduled Tribes as it then was, and the National Commission for Women sat as deemed members. The Protection of Human Rights (Amendment) Act, 2019 changed this structure in three connected ways. The chairperson’s eligibility was widened so that a person who has been a Judge of the Supreme Court, and not only a former Chief Justice of India, may hold the post. The expert membership was increased from two to three, with a requirement that at least one of the three be a woman. And the circle of deemed members was enlarged to take in the chairpersons of the National Commission for Backward Classes and the National Commission for Protection of Child Rights, together with the Chief Commissioner for Persons with Disabilities, alongside the commissions named in the original Act, whose own titles had changed in the interval as the single commission for Scheduled Castes and Scheduled Tribes was divided into two.

Who can become the Chairperson of the NHRC?

The chairperson must be a person who has been Chief Justice of India or a Judge of the Supreme Court. Before the 2019 amendment only a former Chief Justice of India could hold the post, which confined the choice to a very short list of retired judges. The amendment widened the pool while keeping the office judicial in character.

The deemed members require a word of explanation, because they are the point where the Indian design departs furthest from a single-purpose body. Deemed members are not appointed to the Commission; they sit on it by virtue of chairing another national commission, and they participate in the discharge of the functions listed in Section 12 other than the inquiry function in clause (a). The logic is coordinative. The commissions for minorities, for Scheduled Castes, for Scheduled Tribes, for women, for backward classes and for children, and the Chief Commissioner for Persons with Disabilities, each police a territory that overlaps the Commission’s general mandate, and deemed membership lets the institutions plan promotional campaigns, studies and reviews together without merging. The cost is that the Commission, when it acts in its promotional capacity, is a large and heterogeneous assembly, while the body that actually inquires into a custodial death is the smaller statutory core of the chairperson and the full-time members. Readers who meet accounts describing the Commission as having thirteen members, or as having six, are usually meeting these two different capacities described without the distinction drawn.

The text of Section 3 permits one further arrangement that readers often find surprising: while the chairperson must have held judicial office, the two judicial members may be sitting judges, since the section speaks of a member who is or has been a Judge of the Supreme Court and a member who is or has been Chief Justice of a High Court, and appointment of a sitting judge requires consultation with the Chief Justice of India under Section 4. A serving judge who sits on the Commission therefore carries the watchdog’s work alongside the court’s, an arrangement defended as keeping the institution in living contact with the judiciary and criticised as dividing a judge’s duty between two masters. In practice the Commission conducts much of its complaint work through benches, the chairperson constituting single-member and division benches from among the members for the disposal of cases, with matters of special importance reserved for sittings of the full Commission. The bench system is the administrative answer to the docket’s size, and it means that the Commission a complainant actually meets is usually one or two members and the registry and law division staff who prepare the file, which returns the analysis to where it belongs: to the quality of the staff work and the reporting machinery, and away from the eminence of the full body’s collective portrait.

The judicial weight in the core membership is deliberate and double edged. A chairperson who has been Chief Justice of India, flanked by a former Supreme Court judge and a former Chief Justice of a High Court, gives the Commission’s findings a gravity that governments find harder to brush aside in public, and gives its inquiries the procedural habits of a court. The same weight narrows the institution’s instincts toward the adjudicatory and away from the investigative and the campaigning, and it feeds the most durable of the popular criticisms, that the Commission is a place where retired judges conclude their public careers. That criticism is answered in part by the statute itself, in a provision examined below: on ceasing to hold office, the chairperson and members are ineligible for further employment under the Government of India or under any state government, a bar designed to remove the incentive to please a future employer. The bar does not answer the separate objection that a three-year term, now combined with eligibility for reappointment, points the incentive in the other direction, toward the government that will decide on renewal. That objection belongs to the tenure question, which is where the argument about the 2019 amendment is sharpest.

Appointment, Tenure and Removal: Where Independence Is Decided

Section 4 of the Act provides that the chairperson and members are appointed by the President by warrant under hand and seal, on the recommendation of a committee of six. The committee consists of the Prime Minister, who is its chairperson; the Speaker of the Lok Sabha; the Minister in charge of the Ministry of Home Affairs in the Government of India; the Leader of the Opposition in the Lok Sabha; the Leader of the Opposition in the Rajya Sabha; and the Deputy Chairman of the Rajya Sabha. Two features of this committee repay attention. The first is that the government’s weight within it is structural: the Prime Minister, the Home Minister and the Speaker ordinarily come from the ruling side, the Deputy Chairman is elected by a House in which the ruling coalition usually commands the numbers, and the two opposition leaders are a minority of the six by design. The second is what the committee lacks: no judge sits on it. Where a sitting Judge of the Supreme Court or a sitting Chief Justice of a High Court is to be appointed a member, the Act requires consultation with the Chief Justice of India, but consultation is not membership, and the judiciary as an institution has no vote in the choice of the people who will staff the rights watchdog. The Act adds a saving clause that no appointment is invalid merely because of a vacancy in the committee, a clause whose significance has grown with periods in which the office of Leader of the Opposition in the Lok Sabha stood formally unfilled because no opposition party met the recognition threshold. During such periods the committee can lawfully proceed with the opposition’s statutory seat empty, and appointments made in that configuration have been contested politically on exactly that ground.

Removal, by contrast, is heavily protected. Under Section 5, the chairperson or a member may be removed by the President on the ground of proved misbehaviour or incapacity only after the Supreme Court, on a reference from the President, has reported after an inquiry that the office holder ought to be removed. Other grounds, including insolvency, engagement in paid employment outside the duties of office during the term, infirmity of mind or body, and conviction for an offence involving moral turpitude in the President’s opinion, permit removal without that reference. The protected core of the removal scheme mirrors the protection given to constitutional functionaries, and it means that a chairperson who displeases the government cannot simply be dismissed mid-term for the displeasure. Whatever vulnerability the institution has to executive pressure enters through the appointment door and through the reappointment door, not through the removal door, and any serious account of its independence has to keep those three doors distinct.

The service conditions complete the protective ring in one respect and expose its limits in another. Under Section 8, the salaries, allowances and other conditions of service of the chairperson and members are such as may be prescribed, with the safeguard that they shall not be varied to the office holder’s disadvantage after appointment. The safeguard prevents the crude pressure of a mid-term pay cut, and it matches the protection given to other statutory and constitutional functionaries. But the conditions are prescribed by the executive’s rules rather than fixed by the Act itself or charged on the Consolidated Fund of India in the manner of the higher judiciary’s salaries, and the institution’s administrative existence, its sanctioned posts, its office, its staff, runs through the government’s budgetary process examined later in this article. Independence in the Indian statutory commission model is therefore a layered thing: removal is hard, disadvantageous variation of terms is barred, dismissal for displeasing findings is not available to the government, and yet the institution’s size, staff and daily capability are set by the administrative decisions of the watched executive. A critic who says the Commission is controlled must specify which layer is meant, because the layers point in different directions, and the accreditation assessment discussed below is best understood as an audit of exactly these layers rather than of any single provision.

Tenure is where the 2019 amendment did its most contested work. The original Act gave the chairperson and members a term of five years from the date of entering office, or until the age of seventy, whichever was earlier, and the chairperson was not eligible for reappointment, while members were. The 2019 amendment reduced the term to three years for both chairperson and members, retained the age ceiling of seventy, and made the chairperson as well as members eligible for reappointment. The government’s stated case for the package, of which the tenure change formed part, was that it widened the pool from which the chairperson could be drawn, increased the expert membership, added a woman member by requirement, and brought the commissions for backward classes and children and the Chief Commissioner for Persons with Disabilities into the deemed membership, all of which it presented as measures that strengthened and broadened the institution. The critics’ case, stated by opposition parties during the amendment’s passage and by civil society organisations since, is that a term cut from five years to three, held by an office holder who may be reappointed by the same executive-dominated committee, converts a protected tenure into a probationary one, and that a chairperson approaching the end of a short first term has a visible reason to avoid findings that embarrass the government of the day. The passage debate in 2019 displayed the disagreement in its parliamentary form. The amendment bill was piloted for the government by the Home Minister, Amit Shah, who presented the package in the terms described above: a wider field for the chairperson’s office, a larger and more inclusive membership, and a modernised institution. Opposition speakers answered on the single point of tenure and reappointment, arguing that a three-year term renewable at the pleasure of an executive-weighted committee would make the chairperson and members dependent on the goodwill of the government they exist to scrutinise, and that no comparable watchdog in the constitutional scheme holds so short and so renewable a tenure. The government carried the bill, as governments with majorities do, and the argument was left where such arguments are usually left, to be settled by the conduct of office holders over time and by the assessments of outside reviewers. Both cases are arguments about institutional design values rather than about any individual’s conduct, and the article does not adjudicate between them. What can be said on the record is that the disagreement is genuine, that the accreditation reviewers discussed later in this article treated appointment and tenure arrangements as central to their assessment, and that a reform debate which ignores the reappointment question and argues only about the eminence of appointees is missing the mechanism through which the tenure change operates, if it operates at all.

NHRC Powers and Functions Inside an Inquiry

Within an inquiry, the Commission is formidably equipped, and this is the half of the design that the toothless tiger verdict habitually understates. Section 13 gives the Commission, while inquiring into complaints, all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, in respect of summoning and enforcing the attendance of witnesses and examining them on oath, discovery and production of documents, receiving evidence on affidavits, requisitioning any public record or copy of it from any court or office, and issuing commissions for the examination of witnesses or documents. The Commission may require any person to furnish information on points relevant to the inquiry, and a person so required is deemed legally bound to furnish it within the meaning of Sections 176 and 177 of the Indian Penal Code, so that refusal or false information carries penal consequences. An authorised officer not below the rank of a gazetted officer may enter a building where documents relevant to the inquiry are believed to be, and seize documents or take copies, subject to the safeguards of the Code of Criminal Procedure. The Commission is deemed to be a civil court for specified purposes, its proceedings are deemed to be judicial proceedings, and offences of the kind described in the Penal Code committed in its presence may be forwarded to a magistrate. A witness before the Commission is protected by Section 15, under which a statement made in the course of giving evidence is not to be used against the maker in civil or criminal proceedings except a prosecution for giving false evidence, a protection designed to make officials speak freely. Section 16 entitles a person whose conduct is in issue, or whose reputation is likely to be prejudicially affected, to be heard and to produce evidence in defence. Taken together, these provisions describe not a debating society but a tribunal with compulsory process, and they explain the feature of the Commission’s work that private complainants cannot reproduce for themselves: it can force the production of the state’s own records, including the general diary, the post-mortem report, the wireless log and the duty roster, and it can summon the officers who wrote them.

The Commission also holds two procedural instruments that are easy to overlook. It may call for information or reports from governments and authorities within a time it specifies, and if the report does not arrive, it may proceed to inquire on its own; if the report does arrive and satisfies the Commission that no further inquiry is needed or that the authority has taken the required action, it may close the complaint and inform the complainant. And since the 2006 amendment, where the Commission considers it necessary or expedient, it may transfer a complaint to the State Commission of the state from which the complaint arises, provided the State Commission has jurisdiction over it, so that the national docket and the state dockets operate as one system rather than as rivals. The 2006 amendment, whose other principal changes were to reduce the membership of State Commissions, to permit jail visits without prior intimation to the state government, and to strengthen the provisions on evidence and interim recommendations, adjusted the machinery rather than the mandate. Neither in 2006 nor at any other point did Parliament revisit the four design choices identified at the start of this article, which is itself a fact about where the political consensus on this institution lies: its procedures may be improved, but its ceiling has been left where the founders put it.

What can the NHRC do when an inquiry finds a violation?

On completing an inquiry, the Commission may recommend compensation for the victim or the family, prosecution or other suitable action against those responsible, and interim relief at any stage. It may also approach the Supreme Court or the High Court for directions or writs. What it sends is a recommendation. It cannot itself prosecute, punish or order payment.

The review functions deserve a moment of their own, because they are the part of Section 12 that operates without any complainant at all. The Commission may review the safeguards provided by the Constitution and by law for the protection of human rights and recommend measures for their effective implementation, review the factors, including acts of terrorism, that inhibit the enjoyment of human rights, and study treaties and other international instruments and recommend on their implementation. The most consequential exercise of this power came when the Commission advised, during the parliamentary career of the anti-terrorism legislation that became the Prevention of Terrorism Act, that the existing body of law was adequate to the task and that a new statute was unnecessary. Parliament legislated anyway, which is the review function’s limit in a sentence: the Commission may place a reasoned institutional opinion on the legislative record, and the legislature remains free to disregard it without giving reasons in return. Yet the opinion was not wasted. It fixed the terms on which the legislation was debated, it was cited throughout the argument over the statute’s later repeal, and it established a precedent, that the rights watchdog may address Parliament on pending legislation touching rights, which the Commission has used since. A reader assessing the promotional functions should weigh them as agenda instruments of this kind rather than as failed orders: their currency is the public record, and the public record compounds.

That last clause of the direct answer is the hinge of the whole institution. Section 18, as substituted by the 2006 amendment, sets out the steps the Commission may take during or upon the completion of an inquiry. Where the inquiry discloses the commission of a violation of human rights, or negligence in the prevention of a violation, or abetment of it, by a public servant, the Commission may recommend to the concerned government or authority the payment of compensation or damages to the complainant, the victim or the family, the initiation of proceedings for prosecution or such other suitable action as it deems fit against the persons concerned, or such further action as it may think fit. Separately, it may approach the Supreme Court or the High Court concerned for such directions, orders or writs as the court may deem necessary. At any stage of an inquiry it may recommend the grant of immediate interim relief to the victim or the family. The Commission sends a copy of its inquiry report, together with its recommendations, to the government or authority concerned, which must, within a period of one month or such further time as the Commission allows, forward its comments on the report, including the action taken or proposed. The Commission then publishes its inquiry report together with the government’s comments and the action taken or proposed. Alongside this, Section 20 requires the Commission to submit annual reports, and special reports on matters of urgency, to the Central Government and to state governments, which must lay them before Parliament or the state legislature together with a memorandum of action taken or proposed on the recommendations and the reasons for non-acceptance of any of them. The design, in other words, is a publicity design. The Commission’s sanctions are reason-giving, publication, parliamentary laying, and the option of converting its own finding into litigation before a constitutional court. Whether that is teeth depends on how much a government minds being named, and that varies with the issue, the press attention and the electoral calendar in ways the statute cannot control.

Constraint One: Recommendations Instead of Orders

The first design choice deserves a fair statement of the reasoning behind it, because the reasoning was not foolish. A recommendatory commission fits the constitutional structure in which prosecution belongs to the executive acting through its prosecutors, discipline belongs to the departments, and adjudication belongs to the courts. A body that could simultaneously investigate a police officer, find the officer guilty and order the officer’s prosecution and the payment of compensation would be investigator, prosecutor and judge in one, and its proceedings, conducted without the full apparatus of a criminal trial, would be open to the objection that they deny fair procedure to the officials they condemn. The founders chose a body that would find facts and state conclusions with authority, leaving the coercive sequel to institutions built for coercion. The objection to the choice is equally structural: a recommendation addressed to the government whose servants stand condemned invites the condemned party’s employer to grade its own homework, and the one-month response duty in Section 18 is a duty to comment, not a duty to comply. No consequence in the Act follows from a government’s decision to report, month after month and case after case, that it proposes to take no action.

The counter-reading, which the record supports in part, is that compliance is considerably better than the caricature suggests, and it is better precisely where the Commission’s recommendations are most routine. Recommendations for monetary relief in established categories of case, custodial death, death in a police encounter, rape in custody, death through police firing, are accepted and paid by state governments in the great run of cases in which the facts are documented and the sum is modest, because refusing a small, well-evidenced compensation recommendation in a published report costs a government more than paying it. The Commission’s annual reporting tracks the action taken reports it receives, and the pattern those reports disclose is not uniform defiance but a gradient: compensation is the most complied-with category, recommendations for prosecution and departmental action meet a slower and more qualified response, and recommendations aimed at policy or at senior levels of responsibility are the most likely to be answered with disagreement or silence. The disclosure power also operates before any recommendation is made. A Commission notice in a custodial death case compels the district administration to assemble and transmit the inquest report, the post-mortem report and the magisterial inquiry report to a national body that will read them, and administrations behave differently when they know the file will travel. None of this converts a recommendation into an order. It does mean that the first constraint binds hardest at the top of the system, in the cases involving policy and senior officers, and weakest at the base, in the documented custodial case where the Commission’s machinery is, in practice, the only external scrutiny the file will ever receive.

The life of a single recommendation shows the machinery at working distance. A death occurs in a district lock-up. Because the Commission has required intimation of every custodial death within twenty-four hours, the file opens without any complainant: the district magistrate and the superintendent of police report the death, and a case number exists before the family has found a lawyer. The Commission calls for the inquest report, the post-mortem report and the magisterial inquiry report, and if the post-mortem records injuries the official account does not explain, a bench issues notice to the state government asking why compensation should not be recommended and what action is proposed against the officers on duty. The state replies, ordinarily enclosing the departmental record and, where the evidence is plain, sometimes a report that a criminal case has been registered. If the reply satisfies the bench on responsibility but the family remains uncompensated, the Commission recommends a sum, the state reports payment within the response framework of Section 18, proof of disbursement is filed, and the case closes with the finding, the recommendation and the government’s action all published in the Commission’s reporting. The family has received money without filing a suit, without proving negligence to a civil standard and without waiting for the criminal trial of the officers to conclude, which in the ordinary course it may never do. Set beside this the same machinery aimed at a policy: a recommendation that a state amend its police standing orders, or that a ministry review the use of a particular restraint technique, enters a correspondence in which disagreement costs the government nothing, no sum is small enough to be paid for quiet, and the file closes, if it closes, with the recommendation recorded as not accepted. The recommendation instrument is thus neither the nullity of the caricature nor the order it is sometimes mistaken for. It is a tool calibrated, by the accident of what governments find cheap and dear, to deliver individual monetary relief far more reliably than institutional change, and the Commission’s record, strong on compensated families and weak on altered systems, is that calibration working itself out over three decades of files.

Constraint Two: Section 19 and the Armed Forces

The second design choice withdraws the most sensitive category of complaint from the inquiry machinery altogether. “Armed forces” is defined in Section 2(1)(a) as the naval, military and air forces and any other armed forces of the Union, which brings the central paramilitary forces within the term as well as the three services. Section 19 prescribes a special procedure for complaints of violation of human rights by members of the armed forces. The Commission, acting on its own motion or on a petition, does not inquire in the ordinary way. It seeks a report from the Central Government. On receiving the report, it may either not proceed with the complaint or make its recommendations to that government. The Central Government must inform the Commission of the action taken on the recommendations within three months. The Commission then publishes its report, together with its recommendations and the action taken, and provides a copy to the petitioner. Every element of the ordinary machinery is missing from this track: no summoning of the soldiers concerned, no requisition of the unit’s records by compulsory process, no examination on oath. The Commission sees what the Central Government’s report contains, and its inquiry into the security forces of the Union is therefore an inquiry conducted at one remove, through the ministry that commands them.

The stated justification is the operational one: that the discipline and effectiveness of armed forces deployed in counter-insurgency and border roles would be damaged by subjecting their members to a civilian commission’s compulsory process, and that the forces have their own systems of internal inquiry and military justice. The criticism is that the provision creates a graded citizenship of complaint, in which a violation by a state police constable can be fully inquired into and the same violation by a member of a central force in the same district cannot. The criticism is not only domestic. The United Nations Human Rights Committee, examining India’s report under the International Covenant on Civil and Political Rights in 1997, recorded its regret that the Commission was prevented by Section 19 from investigating complaints against the armed forces directly and recommended that the restriction be removed, a recommendation that has been repeated in various forms since. The practical setting of Section 19 is the body of special security legislation under which the armed forces operate in disturbed areas, and readers who want the statutory context of deployment should follow the Armed Forces (Special Powers) Act and its scheme at the point where this article’s subject and that one meet, because the immunities and sanction requirements of that legislation compound the Section 19 limit: even a recommendation the Commission does make runs into a separate requirement of prior government sanction before any prosecution of a soldier can begin. A reformer who amended Section 19 and left the sanction regime untouched would discover that the track had been widened at its entrance and not at its exit.

The reach of the Section 19 track is wider than the word soldier suggests, because the definition of armed forces in Section 2(1)(a) extends to any other armed forces of the Union, which places the central armed police forces, the organisations that conduct most of the Union’s internal security deployment in aid of civil authority, on the restricted track alongside the army, the navy and the air force. A complaint arising out of a counter-insurgency operation in the north-east, a camp in central India’s Maoist-affected districts or a cordon and search in Kashmir therefore travels the report route whichever uniform conducted it, so long as the uniform is the Union’s. The same incident handled by a state police force travels the full inquiry route, with summonses, requisitioned records and examination on oath. Two complainants describing the same conduct by two forces standing in the same street thus hold entirely different procedural rights against the institution created to protect them, and the difference is indefensible on any ground except the operational one the founders accepted. The Commission has not been silent inside this limit. Its annual reporting and its interventions in individual cases have recorded its dissatisfaction with reports that answer allegations in general terms, and its publication duty under Section 19 at least ensures that the restricted track ends in a public document rather than a closed file, naming the recommendation made and the action the government reported. Publication is the residue of the inquiry power after the section has finished with it, and the Commission’s practice under Section 19 is best read as an attempt to make that residue count: the report it cannot compel an inquiry into, it can still place on the parliamentary and public record with its own assessment attached.

Constraint Three: The One-Year Bar in Section 36(2)

The third design choice is the quietest and, for individual victims, often the decisive one. Section 36(1) bars the Commission from inquiring into any matter that is pending before a State Commission or any other commission duly constituted under law, which prevents parallel proceedings. Section 36(2) provides that the Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting the violation of human rights is alleged to have been committed. There is no condonation clause, no provision for sufficient cause, no discretion to extend. A complaint about a custodial beating filed in the thirteenth month is outside the Commission’s jurisdiction however well documented it is, and the Act gives the Commission no power to forgive the delay. Set this against the population the Commission serves. Its complainants are disproportionately prisoners, families of persons killed in custody or in encounters, residents of conflict areas and people whose first attempts at remedy, a complaint to the district police, an approach to the local magistrate, a petition to the state government, consume months before they fail. The Commission is characteristically the last resort, and Section 36(2) penalises the complainant for having tried the earlier resorts first. The Commission’s own advisory processes recognised the problem early, and proposals to equip the Commission with a discretion to entertain delayed complaints for sufficient cause have formed part of the amendment debate for most of the institution’s life without being enacted.

The one great qualification to the bar arose from litigation rather than legislation, and it shows the courts bending the design without breaking it. In the Punjab mass cremations proceedings, arising from the petitions of Paramjit Kaur, the Supreme Court in December 1996 directed the Commission to examine the Central Bureau of Investigation’s findings on the illegal cremation of bodies by the Punjab police and to determine all the issues. When the Union Government later challenged the Commission’s competence, in part because the events lay far outside the one-year window, the Court held that the Commission, acting under the directions of the Supreme Court itself, occupied a position outside the ordinary run of the statute, acting in a capacity the Court described as sui generis, and that the one-year bar did not defeat the reference. The exception proves the architecture. It took a Supreme Court direction, in a case of mass violation investigated first by the country’s premier investigative agency, to lift a bar that operates without exception against the ordinary complainant whose case is a single custodial death in a district town. A limitation rule that requires constitutional litigation to soften it in the worst cases, while applying mechanically in the ordinary ones, is a design choice whose costs fall where the institution’s protection is most needed. It is also the constraint whose repair requires the least drafting imagination: a sufficient cause proviso of the kind found across Indian limitation law would do it, and the fact that so modest an amendment has not been carried is a measure of how low on the legislative agenda this institution’s working difficulties sit.

The bar’s operation can be followed through a single typical file. A prisoner is beaten in a district jail in March. His family, who learn of it at the next mulaqat, complain first to the jail superintendent, who is the authority over the men accused, and then to the district magistrate, whose office calls for a report from the same jail. Months pass in correspondence. A legal aid lawyer advises an approach to the High Court, papers are prepared slowly, and the family is then told of the National Human Rights Commission and writes to New Delhi with the medical record assembled. If that letter arrives after the anniversary of the beating, the Commission’s registry must return the answer the statute dictates: the matter is beyond the period in Section 36(2), and the Commission cannot inquire. No official has acted in bad faith, no discretion has been abused, and the file is closed by the calendar. The prisoner was not idle during the year; he was pursuing, in the order a poor family naturally pursues them, the remedies nearest to hand, each of which consumed part of the only year the national body allows. Limitation law elsewhere in the Indian system recognises this sequence and equips courts to forgive it. The Protection of Human Rights Act does not, and the consequence is a jurisdiction that is widest for those who arrive first and narrowest for those who arrive last, which is a precise inversion of the order of need among the Commission’s intended beneficiaries.

Constraint Four: The Borrowed Investigator

The fourth design choice is the one this article singles out, because it is the least discussed of the four and the most amenable to repair. The Act contains no provision creating an investigative cadre recruited by, trained by and answerable only to the Commission. Section 14 permits the Commission, for the purpose of conducting an investigation pertaining to an inquiry, to utilise the services of any officer or investigation agency of the Central Government or of any state government, with the concurrence of that government. The borrowed officer works subject to the direction and control of the Commission, and must report within the period the Commission specifies, and the Commission must satisfy itself about the correctness of the facts and conclusions in the report and may examine the investigators. In practice the Commission maintains an investigation division at its headquarters, and that division is headed by a police officer of the rank of Director General of Police and staffed substantially by police officers on deputation from the central and state forces. Consider what that means in the Commission’s characteristic case. The complaint is of a death in police custody, or of a killing in a claimed encounter, or of torture in a police station. The investigation of that complaint, the visits to the station, the recording of statements, the assessment of the general diary and the post-mortem evidence, is conducted by officers who belong to the same service family as the officers complained against, who were recruited and promoted within the same structures, and who will return to those structures when their deputation ends. The conflict is not a slur on the individuals, many of whom have served the Commission with distinction. It is a structural feature, visible on the face of the arrangement, and it was visible to the institution’s external reviewers: the accreditation sub-committee of the Global Alliance of National Human Rights Institutions identified the involvement of police officers in the Commission’s investigations as a conflict of interest in successive review cycles, one of the few criticisms of the Indian institution that is directed at a matter wholly within the power of Indian administration to change.

Why does the NHRC investigate police complaints through police officers?

The Commission has no investigative service of its own: Section 14 authorises it to use the officers and agencies of the central and state governments, with their concurrence, so its investigation division is staffed mainly by police officers on deputation under an officer of Director General rank, investigating police conduct from inside the police’s own service family.

The borrowed-investigator problem earns its place as this article’s namable claim for a reason the other three constraints cannot match. Removing the recommendation ceiling in Section 18 would require Parliament to redesign the Commission’s constitutional character. Opening the armed forces to direct inquiry under Section 19 would require Parliament to overrule the operational argument that has held since 1993. Softening Section 36(2) requires a statutory amendment, small but still an amendment. The investigation division’s composition, by contrast, is an administrative arrangement resting on Section 14’s permission, not its command: the section says the Commission may utilise government officers, and nothing in the Act forbids the building of a mixed investigative staff of civilian investigators, forensic specialists, lawyers and researchers directly engaged by the Commission, with police secondees used for the liaison and record-retrieval functions where their knowledge is genuinely needed. The fix requires money, sanctioned posts and administrative will rather than a majority in both Houses. That a constraint so comparatively easy to relax has persisted through three decades of criticism is the sharpest evidence available for a refined version of the toothless tiger thesis: the institution’s weakness is chosen, but it is chosen at the level of budgets, staffing sanctions and administrative habit at least as much as at the level of statutory text. The detention context in which so much of this investigative work arises, the law governing arrest and custody against which custodial complaints are judged, is set out in the series account of the preventive detention and custody framework, which supplies the legal background to the complaints that fill the investigation division’s files.

Precision about the statutory text strengthens rather than weakens the claim. Section 11 directs the Central Government to make available to the Commission a Secretary General of the rank of Secretary to the Government of India, and such police and investigative staff under an officer not below the rank of Director General of Police, together with such other officers and staff as may be necessary for the efficient performance of the Commission’s functions. The section therefore writes the police leadership of the investigative staff into the Act’s establishment scheme, and no administrator can wish it away. But the operative words are a floor, not a ceiling: the section requires that police and investigative staff be made available, and it separately contemplates other officers and staff as may be necessary, without fixing the proportion between the streams or reserving investigation to the police stream alone. The composition of the division in practice, the near-total reliance on serving police officers for the investigative function itself, is the product of sanctioning decisions, deputation conventions and budget lines, each of which sits within executive practice rather than within any prohibition Parliament enacted. That is why the accreditation reviewers could press the point as a matter of the institution’s own arrangements, and why the point survives every change of government and of chairperson: no actor in the system owns the decision to change it, and so it is never changed. A single sanctioned cadre of civilian investigators, recruited against the other officers and staff limb of Section 11 and grown over a decade into the division’s core, would leave the section’s text exactly as it stands and remove the conflict the reviewers keep recording.

The Record: What the Commission Has Done With a Limited Design

An institution profile that stopped at the constraints would misdescribe the institution, because the Commission’s record contains real achievements that its design did not guarantee. The clearest is its guideline work, in which it converted individual complaints into standing instructions for the entire police system. The Commission directed that every death in police or judicial custody be reported to it by the district authorities within twenty-four hours of its occurrence, a direction that created, for the first time, a national register of custodial death as an event requiring explanation. In 1997 it issued guidelines for the reporting and investigation of deaths in police encounters, and in 2010 it revised them to require the registration of a first information report where the encounter is not found genuine, a magisterial inquiry into every encounter death, and the reporting of every such death to the Commission within forty-eight hours, with a fuller second report to follow. It issued instructions on the videography of post-mortem examinations in custodial death cases and on the treatment of prisoners, and it built a practice of camp sittings and open hearings in which benches of the Commission travel to state capitals and hear complainants and officials in the same room. Journalists and field researchers who document custodial violence work with material that can endanger the people who supplied it, which is why the methods journalists use to protect sources through VaultBook belong to the same evidentiary world as the Commission’s own files: in both, the safety of the record and of the person behind it is a precondition of the truth emerging at all.

The courts have periodically enlarged the Commission’s effective authority beyond the statute’s ceiling, and the pattern is one of the most interesting features of its history. In National Human Rights Commission v State of Arunachal Pradesh, decided in January 1996, the Commission itself went to the Supreme Court under Article 32 on behalf of some sixty-five thousand Chakma and Hajong residents of Arunachal Pradesh who faced threats of forcible eviction, and the Court, in a bench of Chief Justice A. M. Ahmadi and Justice S. C. Sen, directed the state to ensure that the life and personal liberty of every Chakma resident was protected and that no Chakma be evicted except in accordance with law while citizenship applications remained undecided. The case matters beyond its facts. It established that the Commission could act as a petitioner before the constitutional courts, using the Section 18 power to approach the court not as an afterthought but as a principal instrument, and it showed a three-year-old institution litigating against a state government and winning protective directions for a population with no political weight. The Punjab proceedings, discussed under the one-year bar, cut the other way as well as this way. The Supreme Court entrusted the Commission with the examination of mass violations on a scale no other Indian institution was asked to handle, and the Commission’s own handling, confining itself largely to the cremations in Amritsar district and resolving claims through compensation over many years without determining individual responsibility for the killings, drew sustained criticism from the petitioners and from human rights organisations, who argued that the institution, handed its largest mandate, chose its narrowest construction. Both halves of that story belong in an honest profile: the Court trusted the Commission with the case because of what the institution was, and critics judged the institution harshly because of what it did with the trust.

The encounter guidelines show the third pattern, in which the Commission’s soft instruments harden through judicial adoption. In People’s Union for Civil Liberties v State of Maharashtra, decided in September 2014 by a bench of Chief Justice R. M. Lodha and Justice Rohinton Fali Nariman, the Supreme Court examined a series of encounter killings by the Mumbai police and laid down a sixteen-point standard procedure for the investigation of deaths in police encounters, to be treated as law declared under Article 141 of the Constitution. The procedure drew expressly on the guidelines the Commission itself had issued, and it made mandatory much of what the Commission could only recommend: the recording of intelligence inputs, the registration of a first information report, investigation by an independent agency or a police team from another station under a senior officer, a magisterial inquiry, and intimation of the encounter death to the Commission or the State Commission. A recommendation’s content, routed through a Supreme Court judgment, became binding law for every police force in the country. This is the strongest answer available to the claim that a recommendatory body achieves nothing, and it is also a precise illustration of the design’s logic: the Commission’s power runs through other institutions, courts, legislatures, the press and the accreditation process, and its influence is real exactly to the extent that those institutions choose to pick up what it lays down. Proportion requires the qualification that this judicial section is the summary the subject allows here; the remedy path through the courts, case by case, is the territory of the rights and remedies treatment in this cluster, and the encounter directions are examined there in their operational detail.

A third pattern in the record is agenda-setting, the use of the promotional and review functions in Section 12 to move subjects that no individual complaint could carry. The Commission’s suo motu and study work has taken up, among other subjects, the condition of persons held in mental health institutions, the occupational disease of silicosis among workers in unorganised quarrying and stone crushing, manual scavenging and the deaths of workers in sewers, bonded labour in brick kilns and agriculture, child labour, trafficking in women and children, the rights of persons affected by leprosy, and the condition of undertrial prisoners who form the large majority of the prison population. The instruments in this work are characteristically soft: research studies, conferences, recommendations to governments, model reporting requirements, and the slow accumulation of a public file. Yet the pattern matters to an honest assessment, because it is the work the recommendatory design is genuinely suited to. A body that cannot order can still define what counts as a rights problem in the public record, can oblige ministries to answer for subjects they would prefer to leave unexamined, and can hand courts, legislatures and journalists a documented file where none existed. Its interventions on silicosis, which produced recommendations for the identification, compensation and rehabilitation of affected workers addressed to the states where the disease was concentrated, illustrate the method and its limits together: the subject entered official discourse because the Commission put it there, and the remedy moved at the pace of state administrations because nothing in the Act allowed the Commission to move it faster. The agenda-setting record is also where the deemed membership earns its keep, since the commissions for women, children, minorities and the Scheduled Castes and Scheduled Tribes bring their own subject files into the room, and the promotional programme of the national body is in part a federation of the family’s concerns rather than the invention of a single secretariat.

Reading the Docket: What the Complaint Pattern Shows

The Commission’s registers are themselves evidence about the institution and about the state it watches, and they repay reading as a pattern rather than as a scoreboard. Across its history the largest single stream of complaints has concerned the police: alleged custodial violence, deaths in custody and in encounters, illegal detention, false implication and the refusal to register complaints at all, followed by the conditions of jails and by complaints against other branches of the public services. Geographically, the registers have been dominated, year after year, by Uttar Pradesh, the country’s most populous state, which has contributed a share of the national docket out of proportion even to its population, a fact that tells a reader something about the state’s policing and something else about the relative awareness of the Commission as a forum in the Hindi-speaking north. Two cautions govern any use of these patterns, and this article observes both. The first is that a complaint is an allegation, not a finding, and the register counts grievances brought to the door, not violations proved inside it; a district with an active bar association and a literate complainant population will register complaints that a district without them suffers in silence. The second is that the published figures move with the Commission’s own counting conventions and with the diligence of its reporting in a given year, so the durable evidence is the ordering of the categories and the persistence of the pattern, not any single year’s total. Read with those cautions, the docket is the empirical foundation of everything the design analysis predicts. An institution built to inquire into the conduct of public servants, reachable without fee or form, and known above all as a place where police conduct can be questioned, becomes in practice a national inspectorate of custody, and its heaviest work is done not in the celebrated confrontations but in the thousands of files in which a district administration is made to produce, perhaps for the first time, a coherent account of how a person in its charge came to be injured or dead.

The Daily Work: Complaints, Benches and the Shape of the Docket

The institution described so far in terms of its design spends its days doing something specific: processing complaints at a scale no other Indian rights body approaches. By the Commission’s own accounting, its registers crossed twenty-four lakh cases across its first three decades, and the monetary relief it recommended in that period ran to some two hundred and seventy-four crore rupees. The inflow in a busy year has exceeded a lakh of complaints. A complaint requires no fee, no lawyer and no prescribed form; it may be made by the victim or by any person on the victim’s behalf, in person, by post or through the Commission’s electronic channels, and the Commission may also act on its own motion on the basis of a media report or its own knowledge, a suo motu jurisdiction it has used for train accidents, custodial deaths reported in newspapers, starvation deaths, bonded labour and the conditions of homes for children and for the mentally ill. The general position set out in this article is legal information rather than advice on an individual complaint, and because the one-year rule in Section 36(2) admits no discretion, a person whose complaint is approaching that boundary should take advice on the facts of their own case without delay, since forum and limitation mistakes in this field are rarely curable afterwards.

How does a complaint move through the NHRC?

Complaints are screened at admission: time-barred, pending elsewhere, anonymous or outside the Act’s definition are dismissed at the threshold. Admitted complaints proceed by notice to the authority concerned, whose report is called for; benches then close the matter on the report, call for material, direct an investigation, or hold a hearing, and camp sittings carry the process to capitals.

The threshold stage is where the docket’s shape is decided, and where a large share of complaints end. Critics of the Commission point to the proportion dismissed at admission as evidence of a body that processes rather than protects; the Commission’s answer is jurisdictional, and substantially correct on the statute: a complaint about a service dispute, a property quarrel between private parties, or a matter already seized by a court is not converted into a human rights case by being posted to the Commission, and Section 12 confines the inquiry function to violations by public servants of the rights the Act defines. The harder question is not the dismissals that the statute compels but the closures that follow a government report. A common disposal pattern is the calling of a report from the very authority complained against, followed by closure when the report denies the allegation or records that departmental action has been taken. The Commission can test such a report through its investigation division or by calling the complainant’s response, and in contested categories of case it does; but the volume of the docket presses every file toward the cheapest disposal, and the borrowed-investigator constraint means that the instrument for testing a doubtful police report is, again, police manpower. The design constraints, in other words, do not merely limit spectacular confrontations with governments. They shape the ordinary Tuesday of the institution, the rate at which files close, and the depth of scrutiny a routine allegation of custodial ill-treatment can expect.

One working instrument deserves separate notice, because it shows the Commission improvising reach that the statute did not expressly give it. The Commission appoints special rapporteurs, experienced former officials and subject specialists engaged for defined themes and regions, who travel, inspect, report and follow up on subjects the bench system cannot pursue file by file: bonded and child labour in particular industries, custodial institutions in particular states, the condition of specific communities and the working of specific schemes. The rapporteur device borrows its name and method from the United Nations system, where special rapporteurs are the standard instrument for sustained attention to a subject, and within India it performs the same function for the Commission, converting episodic complaints about a class of violation into a maintained watch over that class. Rapporteurs have no powers beyond the Commission’s own; their reports travel the same road to the same recommendations. But they change the institution’s posture from reactive to supervisory in the fields they cover, and they are further evidence for this article’s central distinction. Where the Commission has been able to invent machinery inside its mandate, as with rapporteurs, camp sittings and the twenty-four hour reporting rule, it has repeatedly done so. The four constraints are precisely the points at which invention runs out and only Parliament can proceed, three of them because they are written as prohibitions or ceilings in the Act, and the fourth, the borrowed investigator, because invention there requires the sanctioned posts and budget lines that only the government can supply.

Two further features of the statutory scheme belong to the working picture. The first is financial. Under Section 32, the Central Government pays the Commission, after due appropriation by Parliament, such sums as the government may think fit for the purposes of the Act, and the Commission’s accounts are audited by the Comptroller and Auditor General under Section 34. The Commission therefore has no independent revenue and no statutory guarantee of a budget proportioned to its docket; its staffing sanctions, including the sanctioned strength of the investigation division, are matters of government approval. The Paris Principles treat adequate funding, and freedom from financial control that might affect independence, as part of the definition of a compliant institution, and the accreditation reviewers returned to the Commission’s resourcing as part of their assessment. The second feature is the provision the Act makes for enforcement at the base of the system and which has been among its least used: Section 30 empowers a state government, with the concurrence of the Chief Justice of the High Court, to specify for each district a Court of Session to be a Human Rights Court for the speedy trial of offences arising out of the violation of human rights, and Section 31 provides for a special public prosecutor for such a court. For long stretches of the Act’s life this provision remained substantially a paper scheme in much of the country, with designations made unevenly and the designated courts trying few cases as human rights prosecutions. The Commission can recommend prosecution; the forum Parliament built to conduct such prosecutions exists in the text more fully than it has ever existed in the districts.

The Wider Architecture: Secretariat, Special Teams and Human Rights Courts

The members sit at the top of an institution whose working shape deserves a paragraph of its own, because the constraints discussed in this article are administered by people and offices, not by provisions in the abstract. Under Section 11, the Commission is served by a Secretary General, who functions as its chief executive, and by the officers and staff the section contemplates, including police and investigative staff and other officers drawn, in the manner Section 14 describes, from the services of the Union and the states. The Commission’s work is organised in divisions that mirror its statutory functions: a law division that processes complaints through the benches, the investigation division already examined, a division for policy research, programmes and training that carries the promotional mandate, and the administrative and accounts machinery. The pattern a reader should register is how much of this establishment is borrowed at every level: not only the investigators but much of the senior secretariat has historically been staffed by officers of the civil and police services serving the Commission for a term before returning to their cadres. Deputation brings the Commission administrators of real experience in the districts its complaints come from. It also means that the institution’s permanent memory resides disproportionately in its registry and its files rather than in a cadre of its own, and that its personnel policy, like its budget, is negotiated with the government it watches.

The Act also scatters pieces of a harder enforcement architecture around the Commission, most of which have remained lightly used. Section 37 empowers a state government to constitute one or more special investigation teams, consisting of police officers, for the investigation and prosecution of offences arising out of violations of human rights, a provision that could have created specialised prosecution capability in the states and has been used sparingly. Section 30’s Human Rights Courts, with the special public prosecutors contemplated by Section 31, were examined earlier in this article; designated in some districts, absent in others, they have never become the routine forum for human rights prosecutions that the scheme imagines. Section 38 protects action taken in good faith under the Act, and the accounts provisions already noticed place the Commission’s expenditure under audit by the Comptroller and Auditor General, whose reports go to the government and onward to Parliament. Taken as a whole, the statute book describes a system, a national commission to inquire and recommend, state commissions to inquire nearer the ground, special teams to investigate, and designated courts to try, of which the national commission is by far the most fully realised component. An institution profile that treated the Commission in isolation would miss this: part of the explanation for its overloaded docket and its outsized reputation is that the complementary organs Parliament designed alongside it were built late, built unevenly, or not built at all, leaving the whole weight of the scheme on the one body that was constituted within a fortnight of the ordinance.

Accreditation: The External Audit

No account of this institution is complete without the register in which it is argued about abroad, because that register has produced the only continuing external audit of an Indian public body against published criteria. The Global Alliance of National Human Rights Institutions, the worldwide association of national human rights institutions known before 2016 as the International Coordinating Committee, accredits its members through a Sub-Committee on Accreditation against the Paris Principles, grading institutions A for full compliance, B for partial compliance and C for non-compliance. The grade is not decorative. A status carries the right to participate, speak and vote in the proceedings of United Nations human rights bodies, including the Human Rights Council and its mechanisms, in the institution’s own right; a lower grade reduces the institution to the margins of the rooms in which its own country’s record is discussed. Reviews run in cycles, ordinarily of five years, and the process is documentary and argumentative: the institution submits its record, civil society organisations submit theirs, and the Sub-Committee states its concerns and recommendations in published reports.

India’s Commission received A status in 1999, the first round of the modern accreditation process, and retained it through the reviews of 2006 and 2011. The 2016 review was deferred, and A status was granted again in 2017 after the deferral, which means the institution kept its grade while being told, in terms, that the grade was under notice. In the two review cycles that followed, in 2023 and again in 2024, the Sub-Committee deferred the accreditation decision rather than renew the grade, and in the cycle after those deferrals it recommended that the Commission be downgraded, a recommendation the Commission challenged through the Alliance’s own procedures, leaving the question inside the review machinery rather than resolved. This article follows the discipline the subject requires and states that history structurally: the review cycles continue, grades within them are recommended, deferred, challenged and decided by the Alliance’s organs, and any flat assertion of the institution’s standing at a given moment will age in a way that the design analysis does not. The concerns on which the deferrals turned are the durable part of the story, and they are consistent across cycles: the transparency of the appointment process, the pluralism and diversity of the Commission’s composition, including the representation of women and of minorities; the involvement of police officers in the Commission’s investigation wing, identified as a conflict of interest; the institution’s engagement with civil society organisations; and its independence from government in practice as well as in text. Nor were the deferral concerns new when the deferrals came. The Sub-Committee’s published observations had raised the appointment process and the police presence in the investigation wing as early as the 2011 review that nonetheless renewed the A grade, and repeated them in the cycles of 2016 and 2017 before the deferrals of 2023 and 2024 made them decisive. That chronology matters for how the story should be told. The deferrals were not a sudden external verdict on a deteriorating institution; they were the point at which a decade of recorded warnings, unanswered to the reviewers’ satisfaction, changed the reviewers’ disposition from noting concerns to withholding the grade. Any account that treats the accreditation difficulty as a single event in a single year misdescribes a process whose defining feature is its patience and whose documentary trail is public. Two of those concerns, appointments and the borrowed investigator, are design choices already examined in this article from the domestic side. The accreditation record matters here precisely because it is not a domestic political opinion. It is the same criticism, made by a peer body applying criteria India accepted when the institution was founded, and it arrives with a sanction attached, the standing of the country’s rights body in the United Nations system.

The Commission’s responses to this audit belong in the record too. It has treated deferral as a procedural step within a continuing process rather than as a verdict, has made representations against adverse recommendations through the Alliance’s challenge procedures, and has drawn support in that effort from counterpart institutions in other countries. It can also point to a tension inside the accreditation method itself, which its defenders state plainly: the Sub-Committee’s published concerns have, across cycles, rested partly on submissions from civil society organisations that are themselves parties to the domestic argument about the institution, and a government or a commission that believes the assessment has absorbed one side’s narrative will say that peer review has become a channel for the domestic dispute rather than a check upon it. The criticism that scrutiny of the Commission is externally driven, heard often in domestic debate, is the political form of that argument. It does not dissolve the two structural findings, on appointments and on investigators, which rest on the text of the Indian Act and the staffing pattern of the Indian institution rather than on anyone’s narrative, and an honest profile keeps those two categories separate: contested characterisations of the political environment on one side, and verifiable design facts on the other.

The Toothless Tiger Verdict, Tested

The popular verdict on the Commission is compressed into one animal metaphor, and the metaphor survives because it captures the Section 18 ceiling in a phrase. Tested against the record, it is too simple in both directions. In the direction of strength, the Commission compels disclosure that no private complainant could obtain, it has built the reporting grid that makes custodial death a counted and examinable event in India, its guidelines became binding law through the Supreme Court’s encounter procedure, its compensation recommendations are paid in the great run of documented cases, and a former generation of its leadership used the office’s platform to place subjects, from manual scavenging to silicosis to the rights of persons affected by leprosy, on the national agenda. The Commission has also, to its credit, repeatedly asked for the design to be changed: it sent the government proposals for amending the Act covering its structure and powers, the constitution of State Commissions and the transfer of complaints, which the government informed Parliament were under examination, and the gap between the institution’s own requests and the amendments actually carried in 2006 and 2019 is part of the evidence about where the constraint on reform sits. In the direction of weakness, the record includes the Punjab proceedings, in which the Commission narrowed a Supreme Court mandate for mass violations into a compensation exercise; the persistence of the four design constraints unamended across three decades; the appointment process’s structural tilt; the accreditation deferrals; and the standing fact that no government has ever faced a legal consequence, under the Act, for declining a recommendation. The claim that the Commission is a retirement posting for judges is the weakest of the popular charges, since it attacks the motives of office holders whose tenure the statute protects and whose post-office employment it bars, and it explains none of the outcomes that the design analysis explains. The claim that the Commission is merely a government shield is stronger but still incomplete: a shield does not publish reports recording the action governments failed to take, and this institution’s annual reporting does exactly that.

The recurring reform proposal, to give the Commission’s recommendations binding force, deserves examination on its merits rather than applause or dismissal. In its favour, binding force would close the gap between finding and remedy that Section 18 leaves open, and it would end the anomaly of a victim winning every argument and receiving nothing. Against it stands the objection the founders would have made, and it has not lost force with time: a finding of the Commission is reached by inquiry, not by trial. The official complained against faces a body that investigates, hears and concludes without the full procedural armour of a criminal court, including the standards of proof and the rights of cross-examination that attend a prosecution. To make such a body’s conclusions executable, as if they were decrees, without rebuilding its procedure into a court’s, would trade one fairness problem for another, and would expose its compensation awards to constitutional challenge on exactly that ground. The reform positions that engage the design seriously therefore tend to be more surgical: a statutory duty on governments to give reasons for non-acceptance within the Section 18 month, enforceable by a court; a sufficient cause proviso to Section 36(2); the opening of Section 19 to direct inquiry with safeguards for operational material; a civilian investigative cadre under the Commission’s own control; and security of tenure restored to five years without reappointment, or with reappointment removed from the design altogether. Each of these can be tested against the four constraints, and a proposal that touches none of them, however loudly it is announced, will leave the institution exactly where the founders left it.

Comparison with national institutions abroad shows that the Indian choices were choices, because other democracies distributed the same powers differently. The spectrum under the Paris Principles runs from advisory commissions close to the Indian model to bodies with adjudicatory equipment: the Uganda Human Rights Commission, for example, sits as a tribunal and may order the release of a detained person and the payment of compensation, powers its constitution grants expressly, while the Equality and Human Rights Commission in Great Britain holds statutory powers to conduct formal investigations and to issue enforceable notices in its field, and the South African Human Rights Commission works, like India’s, substantially through investigation, mediation and report. The comparison cuts against lazy reasoning in both directions. It shows that enforceable powers for a national institution are not a constitutional impossibility or an eccentricity, since functioning democracies confer them; and it also shows that recommendatory design is a common democratic choice rather than an Indian pathology, since institutions of real influence elsewhere share it. What distinguishes the Indian institution within the family is not any single limitation but the accumulation of all four at once, a recommendatory ceiling combined with an armed forces carve-out, an uncondonable one-year bar and a borrowed investigation wing, layered over a docket of a size few of its peers are asked to carry. Reform argument that borrows a foreign model without noticing the accumulation will fix one wall and call the building rebuilt.

State Commissions and the Family of Recommendatory Bodies

The Act builds the same design twice, and the second build is weaker than the first. State Human Rights Commissions, constituted under Section 21, replicate the national pattern of a judicial chairperson, a selection committee dominated by the state executive, recommendatory powers and a civil court’s inquiry equipment, at a smaller scale and with narrower jurisdiction: a State Commission may inquire only into matters relating to subjects in the State List and the Concurrent List, so the whole field of Union subjects, including the central forces, lies outside its reach, and its ability to obtain records from central authorities is correspondingly limited. Many State Commissions have also spent long periods unconstituted, understrength or without a chairperson, a condition the national body cannot itself repair. Citizens who ask whether the state body is a cheaper route to the same remedy should understand that it is the same design with less reach, less staff and a smaller platform, and that the bar in Section 36(1) on parallel proceedings means the choice between the two is a real one, since a matter pending before a State Commission cannot simultaneously be inquired into by the national Commission.

Do State Human Rights Commissions have the same powers as the NHRC?

No. A State Commission has the same civil court powers and the same recommendatory ceiling, but its jurisdiction is confined to subjects in the State List and the Concurrent List, and it cannot enter Union subjects. It is smaller, depends on the state government for funds and staff, and has often functioned with its chairperson’s office vacant for years.

Comparison sideways is as instructive as comparison downward. The Protection of Human Rights Act’s own deemed membership welds the Commission to the family of national commissions, and the family’s members share the recommendatory gene. The National Commission for Protection of Child Rights, examined in this series as a comparator institution with a similar recommendatory design, inquires with civil court powers and recommends, and the pattern recurs across the commission model of Indian governance: Parliament repeatedly creates bodies with the equipment of courts and the authority of advisers, staffed at the top by the retired judiciary, funded by the executive they watch, and dependent for effect on publicity and on the constitutional courts. Read against that family, the National Human Rights Commission is not an aberration but the fullest expression of a legislative habit, and its profile is the place to see the habit’s logic and its limits in their most developed form. Whether the habit reflects a considered preference for persuasion over coercion in rights protection, or a settled unwillingness to create any body that a government cannot ultimately ignore, is the value question on which the domestic argument about the Commission ultimately turns, and it is a question about Parliament’s intentions across statutes rather than about this Commission alone.

The Four Constraints Table

Structural limit	What it prevents	Stated justification	Criticism	Reform proposals	Route to change
Section 18: findings end in recommendations, not orders	The Commission cannot compel compensation, prosecution or any other action by the government it has investigated	Coercion belongs to prosecutors, departments and courts; an inquiring body that also ordered punishment would deny officials fair procedure	The condemned servant’s own employer decides whether the finding has consequences; the duty is to reply, not to comply	Enforceable duty to give reasons for non-acceptance; binding force for compensation awards	Statutory amendment
Section 19: no direct inquiry into the armed forces	Compulsory process cannot be used against members of the armed forces of the Union; the Commission acts on a report sought from the Central Government	Operational effectiveness and military discipline; the forces maintain their own systems of inquiry and justice	A graded citizenship of complaint; the same act is fully examinable by a state constable and unexaminable by a central force; criticised by the United Nations Human Rights Committee	Direct inquiry with safeguards for operational material; time-bound government reporting	Statutory amendment
Section 36(2): the one-year bar	Any inquiry into a violation more than a year old, with no discretion to condone delay	Finality, freshness of evidence, protection of officials from stale allegations	Victims reach the national body last, after local remedies consume the year; the bar falls hardest on prisoners, conflict areas and the poor	A sufficient cause proviso allowing delayed complaints for recorded reasons	Statutory amendment
No investigative cadre of its own: investigation staffed under Section 14 by officers of the governments complained against, in practice police officers on deputation	Investigations of police conduct are conducted by members of the same service family as the officers complained against	Borrowed expertise, no cost of a parallel service, ready knowledge of police records and procedure	A structural conflict of interest, identified in successive accreditation reviews; the investigator returns to the force he investigated	A directly recruited civilian investigative staff, with police secondees confined to liaison and records	Administrative action: sanctioned posts, budget and recruitment rules

Verdict: An Institution Judged by Its Blueprint

The One Test question for this profile was why a body with a civil court’s powers, a statutory mandate and constitutional-grade appointees struggles to compel anything, and the answer the record gives is that the struggle was designed in. The Commission’s founders built an institution to find facts, state conclusions, publish governments’ responses and feed the constitutional courts, and then withheld from it, in four separate places, the instruments of direct compulsion: executable orders, jurisdiction over the armed forces in the ordinary form, time to receive the complaints of the slowest victims, and investigators of its own. Everything else about the institution, its eminence, its energy, its failures of nerve in particular cases, its occasional enlargement by the Supreme Court, operates inside those four walls. That is why the accreditation reviewers, applying the Paris Principles from outside, and the domestic critics, applying the toothless tiger phrase from inside, keep circling the same provisions, and why the borrowed investigator deserves the emphasis this article has given it: of the four constraints, it alone can be relaxed without asking Parliament for anything, and its persistence is therefore the cleanest measure of how much of the institution’s weakness is text and how much is choice. The series thesis for an institution profile is that a body must be judged by what it was designed to be able to do, not by what it is named. Judged by that standard, the National Human Rights Commission has used a narrow design with more effect than the design promised, through its reporting grid, its guidelines and its recourse to the courts, and less effect than its mandate required in the places where the design’s walls stood highest. The design is in the statute; the consequences are in the record; and the reform that matters is the one that can say which wall it moves.

One closing observation belongs to the aspirant, the researcher and the legislator equally, because each will meet this institution first on paper. The Commission is the rare public body whose official self-description, whose statutory text and whose external audit can all be read against one another without specialist equipment: the Act is short, the annual reports are published, the accreditation findings are published, and the four constraints are visible to any reader willing to follow the section numbers. That transparency about its own limits is, in the end, the institution’s most unusual feature. Most weak bodies are weak in ways that must be excavated. This one’s weakness is printed in its founding document, numbered and headed, where it has waited three decades for a Parliament willing to renumber it.

Frequently Asked Questions

Q: Who appoints the members of the NHRC?

The chairperson and members of the Commission are appointed by the President of India by warrant under hand and seal, on the recommendation of a committee of six chaired by the Prime Minister. The committee consists of the Prime Minister, the Speaker of the Lok Sabha, the Union Home Minister, the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, and the Deputy Chairman of the Rajya Sabha. No judge sits on the committee, although where a sitting Judge of the Supreme Court or a sitting Chief Justice of a High Court is to be appointed as a member, the Chief Justice of India must be consulted before the appointment is made.

Q: What is the tenure of the NHRC chairperson?

Under the Protection of Human Rights Act as amended in 2019, the chairperson holds office for a term of three years from the date of entering office, or until attaining the age of seventy years, whichever is earlier, and is eligible for reappointment. The original Act of 1993 provided a term of five years with the same age ceiling and barred the chairperson from reappointment, so the 2019 amendment both shortened the term and opened the possibility of renewal. On ceasing to hold office, the chairperson is ineligible for further employment under the Government of India or under the government of any state.

Q: Are NHRC recommendations binding on the government?

No. Section 18 of the Protection of Human Rights Act empowers the Commission, on completing an inquiry, to recommend compensation, prosecution or other action to the government or authority concerned, and the government must forward its comments, including the action taken or proposed, within one month or such further time as the Commission allows. The duty imposed on the government is a duty to respond, not a duty to comply, and the Act prescribes no consequence for a decision to take no action. The Commission publishes its report together with the government’s response, and its annual reports are laid before Parliament with a memorandum of action taken, so the pressure on a refusing government is publicity and parliamentary visibility rather than legal compulsion.

Q: Why is the NHRC called a toothless tiger?

The phrase captures the gap between the Commission’s equipment and its authority. Within an inquiry the Commission has all the powers of a civil court: it can summon witnesses, compel the production of records and examine officials on oath. But its conclusions take the form of recommendations under Section 18, it cannot inquire directly into the armed forces under Section 19, it cannot entertain complaints more than a year old under Section 36(2), and its investigations are staffed by police officers rather than by an investigative service of its own. Critics argue that a body which can find everything and order nothing invites governments to treat its findings as advice. Defenders answer that its disclosure powers, published reports and guidelines have produced real effects, and that the metaphor blames the institution for limits Parliament wrote into its statute.

Q: What did the 2019 amendment change about the NHRC?

The Protection of Human Rights (Amendment) Act, 2019 changed the Commission’s composition and tenure. A person who has been a Judge of the Supreme Court became eligible for appointment as chairperson, a post previously confined to a former Chief Justice of India. The expert membership drawn from persons with knowledge or practical experience of human rights rose from two to three, with at least one of the three required to be a woman, and the deemed membership was extended to the chairpersons of the National Commission for Backward Classes and the National Commission for Protection of Child Rights and to the Chief Commissioner for Persons with Disabilities. The term of the chairperson and members was reduced from five years to three, with the age ceiling of seventy retained and eligibility for reappointment extended to the chairperson. The government presented the changes as widening the pool and broadening representation; critics presented the shorter, renewable term as a dilution of independence.

Q: Why was NHRC accreditation deferred by GANHRI?

The Sub-Committee on Accreditation of the Global Alliance of National Human Rights Institutions reviews national institutions against the Paris Principles in cycles, and deferral is its device for holding a decision open while concerns are addressed. India’s Commission received A status in 1999 and retained it in the reviews of 2006 and 2011 and again in 2017 after a deferral. In the two cycles that followed, the decision was deferred again, on concerns that recurred across the published reports: the transparency of the appointment process, the pluralism and diversity of the Commission’s composition, the involvement of police officers in its investigation wing, which the Sub-Committee treats as a conflict of interest, the institution’s engagement with civil society, and its practical independence from government. Deferral is not itself a downgrade, but repeated deferral places the institution’s A status, and with it its participation rights in United Nations human rights bodies, in continuing question.

Q: Does the NHRC have its own investigating agency?

No. The Protection of Human Rights Act creates no investigative service recruited by the Commission. Section 14 authorises the Commission to utilise the services of any officer or investigation agency of the Central Government or of a state government, with that government’s concurrence, for investigations pertaining to an inquiry, and the borrowed officers work under the Commission’s direction and control and report to it. In practice the Commission’s investigation division is headed by a police officer of the rank of Director General of Police and staffed substantially by police officers on deputation. Critics, including the accreditation reviewers of the Global Alliance of National Human Rights Institutions, identify this as a structural conflict of interest, because complaints against the police are investigated by members of the police’s own service family.

Q: Can the NHRC take up a case on its own without a complaint?

Yes. Section 12(a) of the Protection of Human Rights Act empowers the Commission to inquire, on its own motion, into a complaint of violation of human rights or of negligence in the prevention of a violation by a public servant, as well as on a petition presented by a victim or by any person on the victim’s behalf. The Commission acts on its own motion on the basis of media reports and other information that reach it, and it has used that jurisdiction for matters including custodial deaths reported in the press, starvation deaths, bonded labour, disasters and the conditions of institutions for children and for persons with mental illness. Suo motu cognizance is one of the Commission’s most used instruments for reaching violations whose victims cannot file a complaint themselves.

Q: When was the National Human Rights Commission of India established?

The Commission was constituted on 12 October 1993 under the Protection of Human Rights Act, 1993, which began as an ordinance promulgated on 28 September 1993 and was enacted as Act 10 of 1994 with retrospective effect from the ordinance date. It was framed in the period in which the Paris Principles on national human rights institutions, adopted at an international workshop in Paris in 1991, were endorsed by the United Nations General Assembly in resolution 48/134 of December 1993. Its first chairperson was Justice Ranganath Misra, a former Chief Justice of India. The Commission is a statutory body, created by an Act of Parliament rather than by the Constitution, which means its composition, powers and limits can be altered by ordinary legislation.

Q: How many members does the NHRC have?

After the 2019 amendment, the Commission’s full-time core consists of the chairperson, one member who is or has been a Judge of the Supreme Court, one member who is or has been Chief Justice of a High Court, and three members appointed from among persons having knowledge of or practical experience in matters relating to human rights, of whom at least one must be a woman. Alongside this core sit the deemed members: the chairpersons of the national commissions for minorities, for Scheduled Castes, for Scheduled Tribes, for women, for backward classes and for the protection of child rights, together with the Chief Commissioner for Persons with Disabilities. The deemed members participate in the Commission’s functions other than the inquiry function, so accounts that give different totals for the Commission’s size are usually counting different capacities of the same institution.

Q: What are deemed members of the NHRC?

Deemed members are the heads of other national commissions who sit on the National Human Rights Commission by virtue of their own office rather than by separate appointment. They are the chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes, the National Commission for Women, the National Commission for Backward Classes and the National Commission for Protection of Child Rights, together with the Chief Commissioner for Persons with Disabilities, the last three having been added by the 2019 amendment. Their role is coordinative: they take part in the Commission’s promotional and advisory functions, such as research, literacy campaigns and reviews of safeguards, but not in the inquiry function under Section 12(a), which belongs to the chairperson and the full-time members appointed under the Act.

Q: How can the chairperson or a member of the NHRC be removed from office?

Removal is deliberately difficult. Under Section 5 of the Protection of Human Rights Act, the chairperson or a member may be removed by order of the President on the ground of proved misbehaviour or incapacity only after the Supreme Court, on a reference made to it by the President, has held an inquiry and reported that the office holder ought on such ground to be removed. The President may remove the office holder without that reference on specified other grounds: being adjudged an insolvent, engaging during the term in paid employment outside the duties of the office, becoming unfit to continue by reason of infirmity of mind or body, being declared of unsound mind by a competent court, or being convicted and sentenced for an offence which in the President’s opinion involves moral turpitude. The chairperson or a member may also resign by notice in writing addressed to the President.

Q: How much does it cost to file a complaint with the NHRC?

There is no fee. A complaint to the Commission may be made by the victim or by any person on the victim’s behalf, and no court fee, lawyer or prescribed form is required; complaints are received in person, by post and through the Commission’s electronic channels. The absence of a fee is part of the design of a body meant to be reachable by prisoners, families of persons who have died in custody and others without resources. What a complainant cannot escape is the jurisdictional screening that follows: the complaint must concern a violation of human rights as the Act defines them, by a public servant, and it must reach the Commission within one year of the alleged violation, because Section 36(2) gives the Commission no power to entertain a complaint after that period.

Q: Can the NHRC inquire into a matter pending before a State Human Rights Commission?

No. Section 36(1) of the Protection of Human Rights Act bars the Commission from inquiring into any matter that is pending before a State Commission or any other commission duly constituted under any law. The rule prevents parallel proceedings and conflicting findings by two bodies examining the same allegation at the same time, and it makes the complainant’s choice of forum a consequential one, because a matter placed before a State Commission cannot simultaneously be pursued before the national Commission. The system is coordinated rather than competitive: since the 2006 amendment, Section 13(6) has allowed the national Commission to transfer a complaint to the State Commission of the state from which the complaint arises, where that State Commission has jurisdiction over it, and a complaint so transferred is dealt with as if it had been filed before the State Commission originally.

Q: Can the NHRC intervene in a case pending before a court?

Yes, with the court’s permission. Section 12(b) of the Protection of Human Rights Act empowers the Commission to intervene in any proceeding involving any allegation of violation of human rights pending before a court, with the approval of that court. Intervention is a distinct function from inquiry: the Commission does not take the case over, decide it or issue directions in it, but places its institutional knowledge, its fact-finding and its reading of the human rights questions before the court that is seized of the matter. The power recognises that some violations are best pursued inside litigation already running, where the court’s coercive authority can give the Commission’s analysis an effect its own recommendations cannot. The requirement of the court’s approval preserves the boundary between the two institutions, and the Commission’s separate power under Section 18 to approach the Supreme Court or a High Court for directions or writs allows it to initiate proceedings of its own where intervention is not the right vehicle.

Q: What does the NHRC do when a person dies in police custody?

Custodial death is the category of case in which the Commission’s machinery is most systematised. The Commission has directed the district authorities to report every death in police or judicial custody to it within twenty-four hours of the occurrence, so that the event enters a national record whether or not any complaint is filed. It calls for the inquest report, the post-mortem report and the report of the magisterial inquiry that the law requires into custodial deaths, and it has issued instructions on the videography of post-mortem examinations in such cases to protect the integrity of the medical evidence. Where the material discloses a violation or negligence by a public servant, the Commission may recommend compensation to the family and prosecution or departmental action against the officers responsible. Because a death in custody is by definition recent when reported, these cases also fall comfortably within the one-year period allowed by Section 36(2).

Q: Has the Supreme Court relied on the NHRC’s guidelines?

Yes, most consequentially on the investigation of deaths in police encounters. The Commission issued guidelines on encounter deaths in 1997 and revised them in 2010, requiring the reporting of every encounter death to the Commission, a magisterial inquiry and, where the encounter is not found genuine, the registration of a first information report. In People’s Union for Civil Liberties v State of Maharashtra, decided in September 2014, the Supreme Court laid down a sixteen-point standard procedure for investigating deaths in police encounters, to be treated as law declared under Article 141 of the Constitution, and the procedure drew expressly on the guidelines the Commission had issued, converting much of what the Commission could only recommend into binding directions for every police force: recorded intelligence inputs, a first information report, independent investigation, a magisterial inquiry and intimation to the Commission or the State Commission.

Q: Can the NHRC visit a jail without informing the state government?

Yes. Section 12(c) of the Protection of Human Rights Act empowers the Commission to visit any jail or other institution under the control of a state government where persons are detained or lodged for purposes of treatment, reformation or protection, in order to study the living conditions of the inmates and make recommendations on them. As originally enacted, the provision required the Commission to act after informing the state government of its intention to make the visit. The Protection of Human Rights (Amendment) Act, 2006 removed that requirement, so that the Commission may visit without prior intimation. The change was a considered response to the obvious weakness of the earlier design, under which an institution expecting inspection could prepare for it, and jail visits are part of the Commission’s regular work of monitoring the conditions in which the state holds people.

Q: What rights does A status accreditation give the NHRC at the United Nations?

Accreditation by the Global Alliance of National Human Rights Institutions grades national institutions against the Paris Principles, and A status, denoting full compliance, carries participation rights in the United Nations human rights system. An A status institution may participate, speak and vote in the proceedings of the Human Rights Council and its mechanisms in its own right, take part in the work of treaty bodies, and hold office in the Alliance itself. A lower grade reduces the institution to observer margins. This is why the grading is worth contesting: the Commission’s standing in the rooms where India’s human rights record is examined depends on it, and the deferrals and downgrade recommendation in the recent review cycles matter diplomatically as well as reputationally. A status is also the outward certification of the qualities the Paris Principles demand, independence, pluralism, adequate funding and a broad mandate.

Q: What happens to the NHRC’s annual report after it is submitted?

Section 20 of the Protection of Human Rights Act requires the Commission to submit an annual report to the Central Government, and it may submit special reports on any matter which in its opinion is of such urgency or importance that it should not be deferred until the annual report. The Central Government must cause the annual and special reports to be laid before each House of Parliament, together with a memorandum of action taken or proposed to be taken on the Commission’s recommendations and the reasons for non-acceptance of any recommendation. Reports concerning a state are submitted to the state government and laid before the state legislature in the same way. The laying requirement is the formal close of the Commission’s accountability loop: a recommendation a government declines does not disappear, but returns to the legislature in a published document in which the government must record that it declined, and say why.