The healing can begin here

What hope is there for human rights protection in war-torn Jammu & Kashmir if the state’s human rights body is bound and gagged?

Toothless tiger. Now, a dead horse. If the Jammu & Kashmir state government wishes to make good on its promise to strengthen the J & K State Human Rights Commission (SHRC), it is going to have to take note of these sombre – but apt – metaphors. SHRC chairperson Justice A M Mir was recently quoted as saying that, as far as the implementation of the SHRC's recommendations was concerned, he was effectively "whipping a dead horse." With continued governmental meddling in the SHRC's affairs, Justice Mir recalled that an earlier chairman had called the Commission a 'toothless tiger' and that now "we have lost the tail as well."

If a 'healing touch' is what the state government of Mufti Mohammad Sayeed intended for the people of Jammu & Kashmir when it took over in November 2002, then empowering the SHRC should have been one of the first steps in that direction. Indeed, the Common Minimum Programme of the J & K state government – composed of the Congress Party and the People's Democratic Party – lists the strengthening of the SHRC as one of its key objectives. On the contrary, as Justice Mir publicly affirmed, the SHRC has seen a rapid decline in its credibility.

The United Nations principles regulating national human rights institutions, known as the 'Paris Principles', require that the entities 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. Although the SHRC is handling an increasing number of complaints, it is still operating out of a half-completed office building that has already fallen into disrepair. Although part of the SHRC's intended Srinagar headquarters was completed in 2001, work has subsequently slowed almost to a halt. In the meantime, the SHRC has been stranded in expensive rented premises – paying INR 46,500 a month for a space that is sufficient neither for the Commission's purposes nor its status. On the other hand, in order to tackle the increasing caseload, in early-2004 Justice Mir had tried to open an additional office in Jammu; when no office was provided, he was forced to operate instead from his residence.

The SHRC's struggle for adequate resources is not a recent development, with similar complaints being made in a 1999 report. Unfortunately, little seems to have changed since then, even though a new government is in place. In successive annual reports over the past six years, the SHRC has consistently noted its difficulties in investigating violations in remote areas due simply to the fact that it does not have a vehicle capable of traversing rough terrain. Without even a video camera, SHRC members are forced to perform on-site investigations themselves – greatly hampering efficiency.

Official neutering

Apart from the lack of physical resources, the Commission continues to be beset by a number of problems related to its powers and autonomy, all of which have had a major impact on its functioning and credibility. First, the SHRC is currently dependent on the state government for funding, needing to laboriously appeal to lawmakers whenever it requires an appropriation. Second, a 2002 amendment to the J & K Protection of Human Rights Act stripped the SHRC of its ability to appoint its technical staff, transferring this power instead to the government. Meanwhile, the government itself has failed to appoint the required staff, resulting in eight essential posts remaining vacant for three consecutive years. Whether through negligence or deliberation, such an oversight has severely weakened the human rights machinery in Jammu & Kashmir. The result of this low staffing is that the SHRC is referring complaints about police abuses to investigation by the police themselves.

The SHRC's reach is also stifled by its own reluctance to pursue cases in concert with other legal authorities. When cases are pending in court, the Commission's policy is to dismiss them for want of jurisdiction. Nonetheless, the SHRC is empowered to intervene in any proceeding involving human rights violation allegations, with the approval of the court.

It is a matter of concern that senior civil servants continue to show marked disregard for the SHRC's recommendations. Officials have been known to initiate their own investigations – the conclusions of which have often contradicted the SHRC's findings – thereby undermining the Commission's authority. A report obtained from the SHRC details 23 recent decisions in which the concerned deputy commissioner did not implement the SHRC's recommendations. Justice Mir: "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 Commission's former chairperson, Justice Abdul Qadir Parray, 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 [then-Home Minister]. Our commission is only a recommendatory body and has not been provided with enough powers to force implementation."

Thus, the SHRC's actual effectiveness is difficult to gauge. While the Commission had repeatedly called for the government to provide an Action Taken Report (ATR) on its recommendations, 2005 was the first time in several years that the government chose to comply. While the ATR detailed the government's responses in 141 SHRC cases in the 2003-04 report, compensation was actually ordered in 152 cases. The Ministry of Home Affairs reportedly asserted (falsely) that no recommendations had in fact been made for the 11 remaining cases. Furthermore, according to at least one source, in 108 of those cases the government did not follow through by providing any compensation.

Loading content, please wait...
Himal Southasian