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Karnataka
By G. Prabhakaran
The experts say that ``a comparison of the Commission of Inquiry Act, 1952, under which a Commission of Inquiry is appointed, and the Protection of Human Rights Act, 1994, under which the NHRC is constituted, would make it clear that the NHRC is a permanent judicial commission which is far more efficacious than a judicial commission''. They feel that the NHRC, which has its own investigating machinery, could land the Government in trouble if it finds human rights violations and other unlawful acts on the part of Governments or its institutions. While a local judicial inquiry commission would be headed by a former judge of the High Court or a District Court, the NHRC is headed by a former Chief Justice of India and has its members a former or sitting Supreme Court judge and a former or sitting Chief Justice of a High Court. They are appointed for a term of five years by the President on the recommendations of a committee headed by the Prime Minister and which has the Leader of the Opposition in the Lok Sabha as member. The Chairman or members of the commission cannot take up any job under the State or Central Governments after their term, ensuring absolute impartiality. The NHRC initiates inquiries on its own and is not bound by any terms of reference drawn up by the Government as in the case of Commissions of Inquiry. The report of an NHRC inquiry has to be complied with by the Government within one month of its receipt. The commission is bound to publish all its inquiry reports. It also gives a copy of its report to the complainant. The legal experts point out that the term judicial inquiry is used to denote an inquiry under the Commission of Inquires Act, 1952 in which a judicial officer, either sitting or former, is appointed as the Commission of Inquiry. But following a Supreme Court directive in July 2002, sitting judges cannot be deputed to Commissions of Inquiry. So, in effect, judicial inquiry means an inquiry by a former judge of the High Court or District Courts. Under these circumstances, an inquiry by the NHRC is a better option. They say that the NHRC shall, while inquiring into complaints, ``have all the powers of a civil court trying to suit under the Code of Civil Procedure, 1908, and in particular in respect of the (a) summoning and enforcing of the attendance of witnesses and examine them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents, etc''. Sec. 13(5) says that ``all proceedings before the commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code and the commission is deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973''. Under Sec. 17 (1) of the Protection of Human Rights Act, 1994, the commission, while inquiring into complaints of violations of human rights, ``calls for information or report from the Central or State Governments or any other organisation subordinate thereto within such time as may be specified by it. (a) If the information or report is not received within the time stipulated by the commission proceed to inquire into the complaint on its own. (b) If, on receipt of information or report, the commission is satisfied either that no further action is required or that the required action has been initiated or taken by the concerned Government or any other authority, it may not proceed with the complaint and inform the complainant accordingly.'' In the case of Muthanga incidents, the commission sent notice to the Kerala Government and the Government replied to it. After examining the report the commission said it is not satisfied with it and suggested an independent inquiry, preferably by the CBI. But the commission has also said that it is separately considering the larger issue relating to the allegations of delay in the delivery of land promised to tribals by the State Government and their rehabilitation. It has asked the Chief Secretary to furnish, within four weeks, all documents, including those relating to the delivery of land to tribals ousted from the forest and the plan, if any, for their rehabilitation. This action of the NHRC shows that it has a larger canvas on which it could inquire into not only an incident of police action or human rights violation but also other related matters like problems faced by tribals. While the Opposition LDF was on the warpath demanding a judicial inquiry into the Muthanga incident the Government was vehemently opposing it as it felt that no Government in the world is known to have ordered a judicial inquiry into a hostage rescue operation. The legal experts point out that an analysis of the outcome of judicial inquiries conducted in the State since 1957 shows that barring the P.T. Raman Nair Inquiry Commission which inquired into the Andhra rice deal during the first Communist Government, any other probe has not made major political upheavals in the State.
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