The basic rights of the Human Species are called Human Rights. Under section 2 of the State Human Rights Commission Act (SHRC) the Human Rights have been defined as Right to life, Right to liberty, Right to equality, Right to dignity etc.
The composition of the Commission mode of appointment and the State Human Rights Commission Act gives ample powers to the Commission to investigate the complaints and even take sou motu action in HR violations cases or on media reports. Besides inquiries it can give recommendations, intervene into Court cases with the permission of the Court and also file complaints for prosecuting the HR violators. it is very unfortunate, that SHRC is a Toothless tiger. Now, a dead horse.
As per the official data, the Commission has received over 6,000 complaints of human rights abuses since its inception in 1997 under Jammu and Kashmir Protection of Human Rights Act. More than 4600 of these cases have been disposed.
The commission is entitled to deal with cases of ex-gratia relief, release, rape, harassment, disappearance, custodial death, murder, death investigation, compassionate appointments, compensation for death, security cover, service matters, kidnapping and land cases, etc.
Despite claims by the successive governments to provide full support to it, the commission, as per its latest annual report, continues to await fulfillment of memorandum of demands regarding logistic, infrastructural, financial and administrative spheres. One such demand has been about the proper accommodation which continues to have telling effect on its functioning.
The infrastructure and resources provided to the J&K SHRC, however, are in no way “suited to the smooth conduct of its activities”. Apart from the lack of physical resources, the SHRC is beset by a number of problems related to its powers and its autonomy, which have had a major impact on its functioning and credibility.
First, the SHRC is dependent on the State government for funding, and must approach the government every time it requires an appropriation. This is unacceptable.
The SHRC must not be reduced to a dependent extension of the state government. Moreover, the current procedure is administratively inefficient, with the SHRC having to formally apply to the state government’s Finance department for funding each of its requirements. The SHRC should be spending its time independently investigating abuses, not filling out paperwork requesting furniture, office supplies and other essential facilities.
The Paris Principles state that the funding of a human rights institution should be assured and adequate. The SHRC’s resources, however, have not increased in conjunction with the needs of the people of Jammu and Kashmir. In 2002, the Amendment to the Jammu and Kashmir Protection of Human Rights Act (PHRA) stripped the SHRC of its ability to appoint its technical staff and transferred this power to the government. This is a serious problem. The SHRC cannot now appoint its own staff, and the government has failed to do so.
Non implementation of the recommendations
The recommendations of the J&K SHRC remain unimplemented. In July 2006 the then Chairman of SHRC Justice A M Mir resigned in protest against what he termed “growing human rights violations in the state and non-implementation of commission’s recommendations.” In his resignation letter to the then Governor, Lt Gen (Retd) S K Sinha, Justice Mir stated that SHRC was an “eyewash to befool the world community”. He wrote – “During my tenure, not a single recommendation made by the Commission was implemented. SHRC has not been able to accomplish the object for which it was established. I waited for long in the hope that my efforts might yield some results.”
On 26 February 2010, Chief Minister Omar Abdullah during the first budget session of ruling NC-Congress coalition pledged to adequately strengthen the Jammu and Kashmir State Human Rights Commission. Omar Abdullah stated “I would ensure strengthening of Commission to the extent that its Chairman need not leave the way Justice (Retd.) Ali Mohammed Mir had left.”
However, nothing has changed. In February 2011, the then Chairman of the State Human Rights Commission, Justice (Retd) Bashir-ud-Din during his meeting with the Government of India-appointed interlocutors stated that the existing Human Rights Protection Act needs “drastic changes and amendments” to make it more forceful. The Chairman further told that “the powers that the Commission should be vested with are not there. The Commissions’ recommendations need to be acted upon both at the centre and state level.”
In its 2008-2009 Annual Report, the SHRC Chairperson Justice (Retd) Bashir-ud-Din stated that the provisions of the Human Rights Protection Act at first sight give an impression that the Commission is an autonomous body but on closer examination prove that it is not. Justice (Retd) Bshir-ud-Din further accused officials of brushing aside its recommendations or taking these lightly and Commission’s recommendations are rather for most part either not followed or there is a refusal to comply with them on flimsy grounds and that too at the level of Patwari and other Revenue officials or at the instance and report of a constable.
Police and officials scrutinizing SHRC orders!
Further, there has been lack of support and cooperation from the State Government and its agencies including Deputy Commissioners and police. In its Annual Report 2005-2006, the SHRC pointed out that the government first forwarded the Commission’s recommendations to the concerned District Commissioner for verification which effectively made the Commission’s findings redundant. The government’s action on cases was effectively to subject the case to further illegal scrutiny. The SHRC enjoys quasi judicial powers and its recommendation can only be subject to judicial review.
In March 2011, the SHRC castigated the Deputy Commissioners of the State for their passive response in human rights cases and fined the Deputy Commissioner of Kupwara for erring in discharge of duty in investigation in a murder case.
No investigation agency
The SHRC has no independent investigation agency. The Annual Report 2004-2005 of SHRC revealed that in the absence of an independent investigating agency, the SHRC had to be dependent on the State Police to conduct investigations even if the cases were against the police personnel. Under such circumstances, impartial investigation was not possible.
In its 2008-2009 Annual Report, the Commission had asked for its own independent wing headed by an Inspector-General to carry out investigations into complaints of human rights violations. As per Section 11 of the Jammu and Kashmir Protection of Human Rights Act, the state government is bound to depute a police team to the Commission headed by an officer not below the rank of an IGP for probing the complaints. However, in its 2008-2009 Annual Report, the SHRC stated that the investigating agency has been without the services of an IGP. Even policemen to be part of the investigative staff have not been
posted to its designated strength. Out of 15 sanctioned constables only three have been placed at the Commission’s disposal. Besides, five head constables have also not been made available.
According to the 2008-2009 Annual Report of the SHRC tabled by Minister for Finance Abdul Rahim Rather in the State Legislative Assembly on 1 April 2010, 404 cases of human rights violation were instituted by the Commission which included 6 rapes, 43 disappearances and 9 custodial deaths during 2008-09. Due to lack of independent agency and lack of investigation police team it will not be possible for the Commission to carry out investigations with rising cases of human rights violations being reported to it.
No financial autonomy
The SHRC suffer from acute financial shortage and is fully dependent on the state government. The Annual Report 2004-2005 of the SHRC stated that the SHRC was financially “left totally dependent and at the mercy of the government” which endangered the independence of the Commission.
Further, the 2002 amendment to the Jammu and Kashmir Protection of Human Rights Act clipped the Commission’s power to appoint its technical staff, which resulted in dependence on the state government for the same.
The state government continued to fail to provide adequate infrastructure. In its 2008-2009 Annual Report, the Commission expressed resentment over the delay in providing a separate building to it. The report states that the state government in 2001 had decided to handover the Old Settlement Record Room building at MA Road to it. However, not even repairs have been carried out and renovation and construction work of building has not yet begun.