SHILLONG, Dec 15: The National Human Rights Commission (NHRC) on Wednesday said it does not have the mandate to recommend the repeal of the Armed Forces (Special Powers) Act (AFSPA).
After holding a two-day camp sitting/public open hearing for Meghalaya, Mizoram and Tripura at the State Convention Centre, NHRC member, Justice Mahesh Mittal Kumar told reporters that an Act can be challenged legally on two counts – if it violates the basic structure of the Constitution or if the legislature was not competent to frame the law.
“We cannot summon the records of the legislature. Judiciary has to function within its own boundary. State legislature or Union legislature has to act within its own limitation,” Justice Kumar said.
He continued: “The legislatures are free to frame a law but the judiciary can strike it down on the grounds that it violates the basic structure or the legislature was not competent with its impinging upon the area/subject of the other,” he said.
Justice Kumar said a writ of certiorari cannot be issued to the legislature, adding that the legislature has its own privileges.
“NHRC in such a situation would not be competent to say this law is unlawful. It was framed by the legislature. If there are excesses committed while implementing it, we are certainly competent to act on such cases,” the NHRC member said.
He said the Commission will interfere if something absolutely unwarranted has been done under AFSPA.
“But we are not competent to make recommendations for the repeal of the Act,” Justice Kumar said.
Recalling that the Supreme Court and the High Courts have declared many laws as ultra vires of the Constitution, he said the NHRC has taken suo motu cognisance of various cases – most recently, the killings of civilians in Nagaland.
“We take notice. It’s not that we turn a blind eye to the glaring cases where excesses are committed. Whenever cases of such nature are raised before the Commission, it comes down heavily on the authorities,” the NHRC member said.
He said the Commission has a blanket order as regards custodial deaths. It states that if there is a custodial death, the authorities concerned will report the death and the circumstances to the Commission within 48 hours, he said.
“We investigate on our own and if we find that the custodial death is the result of any unlawful action by the police authorities, not only compensation is awarded to the next of kin (of the deceased), departmental proceeding against the officer responsible is also taken up,” Justice Kumar said.
He said in a large number of cases, officers were charge-sheeted, criminally-proceeded and even dismissed from service following conviction.
The NHRC has taken cognisance of the lack of health care facilities and shortage of qualified manpower at healthcare centres across the state.
NHRC secretary general, Bimbadhar Pradhan said right to health is integral to right to life.
“The issue as regards access to health was raised by various NGOs which said doctors are hardly available at the Primary Health Centers (PHCs). We have taken note of it and requested the NGOs to write to the NHRC, so it may take up the issue with the authority concerned,” Pradhan said.
The problem of anaemia and cancer among the people was also brought to the Commission’s notice, he said.
“Access to health or Ayushman Bharat is a flagship programme. Please give us in writing, email us the specific issue regarding public health,” the NHRC secretary general said.
He mentioned that Meghalaya got 12 big hospitals, 30 CHCs, 110 PHCs and civil hospitals but there are limitations in terms of infrastructure, resources, doctors and nurses. There is also paucity of ambulances in the entire state, he said.
“The hospitals and facilities are in place but there is no skilled manpower to run them. This scenario prevails in all states and districts. But we must be aware that the PM has rolled out Ayushman Bharat. The poor people, who do not have access to private hospitals, can avail this insurance,” Pradhan said.
He said Meghalaya recorded the deaths of 877 newborn and 61 pregnant women from April to July last year due to diseases other than coronavirus.
“The newborn and pregnant women have to be protected at all costs,” he categorically stated.
