The National Human Rights Commission (NHRC) cannot investigate alleged excesses by armed forces in militancy-affected areas such as Manipur and Jammu and Kashmir because the panel is a recommendatory body, the Centre told the Supreme Court on Wednesday.
Attorney General (AG) Mukul Rohatgi rebutted the NHRC’s offer to probe more than 1,500 alleged extra-judicial killings in Manipur and said even the top court cannot “transplant” any powers on the panel.
“It amounts to judicial legislation and will have a deleterious effect on the Army fighting against all odds in difficult terrain,” Rohatgi told a bench of justices MB Loukur and UU Lalit.
In July, the court had held that the alleged extra-judicial killings by the Army and Manipur police required a thorough probe. However, there was no decision on which agency shall conduct the inquiry.
NHRC counsel Gopal Subramanium told the bench that the commission was ready to conduct the probe. “Nobody should have an apprehension to an independent inquiry.”
But Rohatgi opposed the suggestions, saying the army will conduct its own inquiry against those allegedly named in the cases.
“If there is a line of control (LoC), nowhere it is said (in law) whether you should fire here or there,” Rohatgi told the bench when it suggested that NHRC was empowered to probe encounters.
Only the Centre has the right to conduct a probe to determine the truth.
“We have the right to do otherwise it will lead to a serious situation. People who have died, or retired can’t have retrospective prosecution say from 1987. How can you have cross examination of such people?” Rohatgi argued.
The bench, however, said it was referring to encounters in the heart of Imphal and not at the LoC.
Explaining his submissions Rohatgi said it would be “judicially improper” to determine whether an encounter in an insurgent-affected area was genuine or not.
With regard to NHRC’s powers, the law officer asserted it can only make recommendations. The Centre or State is bound to place the recommendations and annual reports before the Parliament or the legislature.
“The Central government has a right not to accept but has to table it in Parliament, which is a supreme body, reflecting the people’s will. No question of recommendations (NHRC) being binding,” Rohatgi reiterated.
When the court asked if it was mandatory for the government to implement NHRC’s order directing states to compensate, the AG said on humanitarian ground such directions are not rejected.
“Recommendations should also have a value. Otherwise the recommendations will be useless. They (NHRC) must have the ancillary power to conduct any type of investigations”, the bench noted on Rohatgi’s submission and wondered whether Parliament ever debated the commission’s report.
The AG said merely because the NHRC is headed by a former CJI it does not mean that statutory provisions should be ignored.