5.

3 Judicial Oversight and Human Rights Institutions:

Bridging the Gap Between Law and Enforcement

Even though India is a democratic country, laws like UAPA and AFSPA grant expanded
power to the government. Whenever such expansive power exists, it becomes prone to being
misused, therefore, comprehensive checks should be mandated to ensure accountability. This
responsibility rests upon the judiciary and commissions like NHRC but their role in
preventing the state from having excessive powers is still debatable.
The objective of this chapter is to look into the workings of judicial bodies to better
understand how they navigate situations created by such laws that results in disarray. Are they
on par with what the constitution promises , or do they serve a system that is inherently
unfair?

A. The Judiciary as the Guardian of Fundamental Rights

The Supreme Court and the High Courts in India are regarded as the protectors of
fundamental rights. They use their power of “Judicial review “strike down any law or any
order passed by the government that violates any provision of the constitution, ensuring that
the government’s power stays in check.
Article 32 and 226 empowers citizens to approach the Supreme Court and High Court if any
fundamental right is violated. Over the years, the scope of Article 21 has also expanded, from
being “right to life” it now incorporates rights related to dignity, privacy and protection from
harassment by the State.
Through cases like D.K Basu V. State of west Bengal 1and Nilabati Behera V. State of Orissa,
2
Courts have intervened to prevent custodial violence and abuse by the State, laying down
specific guidelines governing arrest and detention. Additionally, Courts held that violation of
fundamental rights by the state warrants monetary compensation. This principle is called
‘compensatory jurisprudence’.
However, the effectiveness of such decisions can only workout if there is proper enforcement.

B. Judicial Oversight in the Context of Extraordinary Laws

Laws like UAPA and AFSPA pose a critical challenge to courts with respect to balancing of
fundamental rights and claims of national security that often limit judicial intervention.
1. Deference to Executive Authority

Laws like AFSPA and UAPA have been upholded by the courts on the premise that the
executive understands matters of national security better than courts do, thereby adopting a
deferential approach. These defences are justified as the courts lack the institutional
1
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 (India).
2
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (India)
competence to evaluate security risks. However excessive reliance on executive undermines
the judiciary’s role as a check on state power.
2. Intervention and corrective measures
However, courts do not always remain passive and through cases like Union of India
V. [Link], the Supreme Court granted bail under UAPA stating that prolonged
detention without a proper trial is violative of right to personal liberty. Similarly, in
the EEVFAM case, the court held that allegations of extrajudicial killings in areas
governed by AFSPA are subjected to investigation. Such decisions by court clearly
demonstrate that courts do intervene in exceptional circumstances. However, these
interventions remain mostly case-specific and do not alter the broader structural
dynamics.

C. Limitations of judicial oversight

Even though courts play an important role their ability to hols the state accountable is
limited due to several structural limitations.

1) Reactive nature of adjadjudication

In most circumstances courts do not act suo moto and require matters to be
brought before them. Consequently, their intervention is reactive and occurs
when the violation has already taken place, this limits their ability to address
the systemic issues actively.

2) Delays and backlogs

Court proceedings in India can last over years. In contexts of laws like UAPA,
where individuals are detained for extended periods without trial, such delays
can act as punishment, which further undermines the principle that justice
delayed is justice denied.

3) Enforcement gap
Even after courts issues well-reasoned judgement , their effective
implementation is subjected to the implementation by executive agencies. If
there is non-compliance, then it creates a gap between judicial directives and
actual realization.

D. The National Human Rights Commission (NHRC): Mandate and functioning

The National Human Rights Commission was established under the Human rights
act,1993. The main objective of this act is to promote and protect human rights.
The NHRC is empowered to:
A. Investigate complaints in relation to human rights violation.
B. Recommend compensation to the victims.
C. Conduct independent inquiries into matters of violation and abuse and publish
reports.
D. Advise the government on human rights issues.
E. NHRC and custodial violence: role and impact
The NHRC has played an important role in addressing custodial violence,
including deaths and abuse in police custody. It has issued various guidelines
requiring that all custodial deaths must be reported, that there must be
videographic documentation of post-mortem and the family of victim must be
compensated for the loss.

These measures have proved to be effective as it improved documentation and

public awareness of custodial deaths. The NHRC reports have also highlighted
the fact that the problem extends beyond isolated instances of misconduct.

However, a significant limitation of the NHRC is that its recommendations are

not binding in nature, it lacks the authority to ensure compliance and its
directives may be disregarded by the state.

F. Structural limitation of the NHRC

Though NHRC performs a significant role, its effectiveness I constrained by
some structural limitations.
1) Recommendatory powers
The nature of NHRC decisions are purely advisory, which means that it
lacks the authority to ensure compliance. Consequently, non-adherence
by the state limits its effectiveness.
2) Jurisdictional constraints
In cases relating to the armed forces, the powers of NHRC is further
limited as it cannot conduct independent investigations and has to rely
on the reports of the government. This poses significant constraints
specially in regions governed by AFSPA, where the allegations
frequently involve military or paramilitary personnels.
3) Institutional dependence
NHRC relies on the government agencies for implementation and
information for its recommendations. Such dependence raises concern
regarding its functional autonomy and overall effectiveness.

G. The Gap between normative framework and Ground Reality

While there is a strong sense of commitment to accountability through
constitutional and institutional procedures, the gap between theory and reality
still exists significantly. The reasons for this could include institutional
laziness on the part of police, lack of political will to bring about change,
socio-economic problems of the victim themselves, and procedural barriers
like requiring sanctions to come before action. Thus, procedures meant for
accountability do not actually serve their purpose.
H. Judicial activism vs. Institutional constraints
Tension between judicial activism and structural limitations is a recurring
feature of the Indian legal system. While the courts have expanded the scope
of fundamental rights their effective enforcement remains constrained. This
tension is highlighted in cases involving state violence. Even though courts
 may articulate important judgements, their impact is often diluted at the
implementation stage due to ineffective enforcement mechanisms and
procedural delays.
To address this issue, courts have employed mechanisms such as continued
mandamus, whereby they retain jurisdiction to monitor compliance with their
orders. however, Judicial oversight of such kind requires significant efforts
and resources to be expended, hence, it is not suitable for all cases and
situations.

I. Reimagining oversight: Towards effective accountability

If we want to resolve issues related to judicial oversight and NHRC
effectively, we need to introduce multiple changes:
1) Strengthening Enforcement Mechanisms: It is necessary to ensure
that orders of the court and recommendations of NHRC are followed
through.
2) Increasing Institutional Autonomy: It is important for NHRC not to
rely on the executive organs that it oversees since it would allow
ensuring credibility and effectiveness.
3) Increasing Access to Justice: Poor/marginalized individuals require
legal assistance in order to use services provided by those institutions.
4) Integration of technology: All the above measures will be effective
only in the context of addressing criminal justice reform issues.
CONCLUSION
Courts and human rights bodies play a critical role in safeguarding human rights and
checking state power. Their intervention have contributed to the development of important
legal principles aimed at preventing misuse of authority. However, a closer inspection reveals
that these institutions have structural limits that dilute their effectiveness. Procedural delays
and systemic limitation often hinder their ability to ensure compliance and accountability.
The above problem is further aggravated considering strict legislation like UAPA and AFSPA
that enhance the powers of the State while at the same time diluting any supervisory system.
In consequence, there arises an environment of “silent justice,” whereby although the law
exists on paper, no tangible results materialize in practice.
Ultimately, the issue is not merely the formal powers vested in courts or institutions like
NHRC but their ability to use these powers to bring tangible change. Unless, the gap between
the normative framework and its practical implementation is addressed, accountability will
remain a persistent issue for India.