SHILLONG, Aug 19: The state government’s institution of a judicial inquiry into the events leading to the death of Cheristerfield Thangkhiew by gunshot from a police weapon on August 13, to be headed by (Retd.) Justice T. Vaiphei, the sitting Chairperson of the Meghalaya State Human Rights Commission (MSHRC) rings a discordant note since the Commission has already taken suo-motu cognizance of the case on August 15.
Legal experts say that sitting Chairperson of a State Human Rights Commission cannot conduct a judicial inquiry since the Commission is a statutory body with independent jurisdiction.
The MSHRC, being a constitutionally independent body, has original jurisdiction to inquire or cause an inquiry made into the alleged encounter. The Commission is duty bound to enquire and obtain a detailed report on the encounter.
By appointing the Chairperson of the MSHRC, the government is giving him a dual responsibility which is not an administratively prudent step as it could lead to conflict of interests, the experts say.
A judicial inquiry ought to be conducted by a sitting or retired High Court judge.
The MSHRC has to carry out an independent inquiry and it is duty bound to do so as it is answerable to the National Human Rights Commission (NHRC).
In this case it is also unclear whether the state government has sought the permission of the NHRC to allow the MSHRC Chairman to conduct the judicial inquiry on the encounter death of Cheristerfield Thangkhiew.
In the past, the Meghalaya Government had constituted a judicial inquiry by retired High Court Judge TC Das into the Khliehriat firing incident. Justice Phukan (sitting Gauhati High Court Judge) enquired into the Nongshilliang police encounter case.
So far no state governments in India have requested the respective State Human Rights Commissions (SHRC) to conduct judicial inquiries on their behalf.
It is a well established fact that SHRC is an independent and constitutional body created to conduct inquiry, either suo moto or on a complaint, into cases of human rights violations.
It is therefore strange that the Meghalaya Government should request the MSHRC Chairperson to conduct an inquiry, implying therefore that government itself admits that there were human rights violations in the encounter between the police and the slain HNLC militant.
If the MSHRC has taken cognizance of the August 13 killing then the state government has to indicate its comments/action taken on the report/recommendations of the Commission within a period of one month in respect of general complaints and within three months in respect of complaints relating to armed forces.
The MSHRC then has to adopt the following procedures:
l Where the inquiry discloses the commission of violation of human right or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
l Approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
Recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.
Noted Human Rights activist and Director of the Delhi-based Rights and Risk Analysis Group, Suhas Chakma told this reporter that inquiry by the Chairman of the State Human Rights Commission (SHRC) is not a judicial inquiry in the strictest sense and the Meghalaya Government should have appointed a serving judicial officer to conduct the inquiry.
Since the SHRC had already intervened suo motu into the case prior to the announcement of judicial inquiry, the appointment of the Chairperson of the SHRC as the Chairman of the Inquiry Commission tantamounts to handing over the case to the SHRC for investigation.
Since the SHRC will be conducting its enquiry, appointing the Chairperson to conduct a judicial enquiry would amount to a conflict of interest, Chakma said, adding that the Supreme Court SOP on encounter killings refers to magisterial inquiry (which can be either judicial or executive).
