Residents Of Jammu And Kashmir May Approach NHRC For Grievances On Violation Of Human Rights As State Commission Was Wound Up: High Court

The Jammu and Kashmir State Human Rights Commission had ceased to exist after the Jammu and Kashmir Reorganisation Act, 2019 came into effect on 31.10.2019.

The Petitioner in this case stated that this is contrary to Section 21 of the Protection of Human Rights Act, 1993 which provides for the constitution of a Human Rights Commissions in every State and Union Territory.

He added that absence of a Human Rights Commission in the UT means that the aggrieved people would not be able to get redressal for their grievances and in the process, would be denied justice. He also stated that according to Section 30 of the 1993 Act, Human Rights Courts are to be established at all places.

The Court, keeping this in mind, stated, "The matter in that regard especially with reference to the provisions of Section 21(7) of the Act of 1993 needs to be examined by the Government so that proper remedies are available with the aggrieved persons, who are having any grievance regarding violation of their human rights."

Background

A petition had been filed before the High Court regarding an encounter which took place on 18^th July 2020, where three labourers, Ibrar Ahmad, Mohammed Ibrar and Imtiaz Ahmad, aged about 16, 21 and 26 years respectively, were killed. The FIR was initially registered as an "encounter with the terrorists". However, the Armed Forces had later released a press report, where they had admitted that the encounter was fake. The petitioner had termed this as a "blatant violation of human rights."

The Counsel for the Petitioner, Advocate Salih Pirzada, referred to cases like People's Union for Civil Liberties v. State of Maharashtra and Extra Judicial Execution Victims Families Association v. Union of India, and submitted that guidelines laid down by the Supreme Court in these cases are not being followed in the UT. "The entire evidence will be destroyed, in case immediate action is not taken in the matter," stated the counsel for the petitioner.

Assistant Solicitor General of India, TM Shamsi, on the other hand argued that the present petition pertained to a personal dispute with reference to three persons who were allegedly killed in an encounter with forces and contended that the Petitioner has no authorization to raise this dispute. Moreover, the ASGI pointed out that the family of the deceased had already filed a writ petition before the High Court and had claimed a different relief. Hence, he contended that this PIL should not be entertained by the Court.

Findings

The Court perused the writ petition filed by the deceased person's family and found that the prayers made by them are the same as the prayers made by the petitioner in the case at hand. Hence, the Court stated, "a separate petition filed by the petitioner claiming the same to be in public interest cannot be entertained."

Further, the Bench also said, "once the parents of the deceased can approach this Court by filing a writ petition prior in time, they can always raise whatever grievance they have. In such a situation, public interest petition filed by a third party cannot and should not be entertained as he has no locus or cause of action to raise that dispute. It cannot be said to be in larger public interest as the guidelines for investigation in such type of cases have already been laid down by Hon'ble the Supreme Court in the cases referred to by the petitioner himself."

Coming to the issue of constituting Human Rights Courts in the UT, the Court referred to the notification dated 07.02.2019 issued by the Department of Law, Justice and Parliamentary Affairs of the Government of J&K and stated that the Court of Principal Sessions Judge of each district has been designated as Human Rights Courts.

On setting up of State Human Rights Commission, the Court observed as follows;

"The matter in that regard especially with reference to the provisions of Section 21(7) of the Act of 1993 needs to be examined by the Government so that proper remedies are available with the aggrieved persons, who are having any grievance regarding violation of their human rights".

Case Title: Sandeep Mawa v. Union of India & Ors.

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