Toothless tiger. Now, a dead horse. If the Jammu and Kashmir state government wishes to make good its Common Minimum promise to strengthen the Jammu and Kashmir State Human Rights Commission (SHRC), it is going to have take note of these sombre – but apt – metaphors. 

Last week, SHRC chairperson Justice A.M. Mir was quoted as saying that insofar as the implementation of the SHRC’s recommendations was concerned, he was effectively “whipping a dead horse.” “One of our earlier chairmen [said] the commission [was] a toothless tiger, and when the government withdrew the inspector general of police rank officer [attached to the SHRC], we did say that we have lost the tail as well. The executing agencies are behind all this,” Justice Mir charged. 

If a “healing touch” is what the state government intended for the people of Jammu and Kashmir, then empowering the SHRC should have been one of the first steps in this direction. The Common Minimum Programme of the Congress-People’s Democratic Party government, in fact, lists the strengthening of the SHRC as one of the key objectives. The SHRC has, to the contrary, seen a rapid decline in its credibility, as Justice Mir himself publicly affirmed last week. 

The United Nations principles governing the establishment and functioning of national human rights institutions (“Paris Principles”) require that the institution be provided with “an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.” 

The infrastructure and resources provided to the J&K SHRC, however, are in no way “suited to the smooth conduct of its activities”. 

Take building and infrastructure. In a situation where the SHRC has to handle an increasing number of complaints, it is still grappling with problems such as operating out of a half-completed office building that has already fallen into disrepair. As stated in the SHRC’s 2003-2004 annual report, a portion of the SHRC’s intended headquarters in Srinagar was completed in 2001. Since that time, work on the building has slowed almost to a halt; the SHRC has been stranded in expensive rented premises – of Rs. 46,500 a month – that is not even sufficient for the commission’s purposes nor commensurate with its status.

This is only marginally better than the situation in Jammu, where the SHRC’s ‘sub-office’ has no office space to speak of. This is especially problematic given the increase of reported cases originating in the Jammu area. In order to tackle the caseload, in January-February 2004, the SHRC chairperson attempted to open an additional office of the SHRC in Jammu but was forced to operate from his residence, as no office was provided for him.           

The SHRC’s struggle for adequate facilities and resources is not a recent development. In its 1998-1999 report, it had complained of similar problems. Unfortunately, little seems to have changed. Over the past six years, in successive annual reports, the SHRC has consistently noted its difficulties in investigating reports in remote areas, such as Doda and parts of Rajouri, due to the simple fact that it does not have a vehicle capable of traversing rough terrain. Nor is it equipped with a video camera. Members of the SHRC are forced to perform onsite investigations themselves and generate descriptions of the situations. This process is both inefficient and inadequate; in that any written description will fail to capture the detailed visual information a camera is capable of recording. 

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. According to the SHRC’s 2003-2004 report, eight essential posts had remained vacant for the three previous years. If this undue delay is the result of negligence, such gross oversight is astounding. If, on the other hand, the lack of appointments is the result of a deliberate attempt to impair the SHRC, the problem is far more serious. 

The government, in fact, transfers and replaces SHRC staff at will, without consulting the chairperson, as demonstrated by the withdrawal of the aforementioned IGP-rank officer more than three years ago, in May 2002. For an institution that is often required to carry out independent investigations in order to verify and/or address complaints of human rights violation, the presence of investigating officers is essential. This is also stipulated in Section 11(1) of the Jammu and Kashmir PHRA. During a recent field trip, the South Asia Human Rights Documentation Centre brought this matter to the attention of a senior state government official, who said an appointment would be made soon. It has been two months since that assurance, and no such appointment is reported to have been made. 

The SHRC, as a result, has been submitting complaints about police abuses to the investigative discretion of the police, which is akin to allowing an individual to be the judge of his/her own case, thereby violating a cardinal principle of natural justice. This method, in fact, was being resorted to even when the SHRC had an investigating officer, as clearly, the sole investigator could not possibly conduct all the necessary probes himself. 

Last, and perhaps, most significant, is the marked disregard shown by senior civil servants, particularly Deputy Commissioners, to the SHRC’s recommendations. They have been known to initiate their own independent investigations, the conclusions of which often contradict the SHRC’s findings, thereby serving to weaken the authority of the SHRC and undermine its role. A report obtained from the SHRC details 23 recent decisions in which the concerned Deputy Commissioner did not implement the SHRC’s recommendations. As Justice Mir complained, “it is an anomaly that for executing warrants against the police officials, we are dependent on the same force.” Without an effective enforcement mechanism, the SHRC’s recommendations are meaningless. 

The former chairperson, Justice Abdul Qadir Parray, had made a similar complaint in 2002, stating that “cases of human rights violations in Kashmir at the hands of security forces are gathering dust in the official chambers of L.K. Advani. Our commission is only a recommendatory body and has not been provided with enough powers to force implementation.” 

In a similar vein, the SHRC has also repeatedly called for the government to provide an Action Taken Report (ATR) on its recommendations. For several years, this call has not been heeded. This year, the government is known to have delivered an ATR to the Assembly. The ATR reportedly details the action taken by the government in 141 cases in the 2003-2004 report, in which the SHRC made recommendations. The SHRC report however had listed 152 cases in which compensation had been ordered – eleven more than the number mentioned in the ATR. The Ministry of Home Affairs reportedly asserted that for those 11 cases, no recommendations had been made, although this conclusion is at odds with the SHRC report. More disturbingly, according to at least one source, in 108 of the cases in which the government took “action,” the government did not, in fact, provide compensation. 

Another problem with the SHRC is its inability to pursue cases in concert with other legal authorities. It is the policy of the SHRC to dismiss cases for want of jurisdiction when cases are pending adjudication in courts of law. The SHRC is empowered to intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of the court. It should strive to carry out this function, as its assistance to the court may prove decisive. Its mere presence in the court will highlight the significance of such cases, ensure the protection of victims or witnesses, and help bring about the successful prosecution of human rights violators.

 Human Rights Features