Wednesday, September 28, 2022

Jammu and Kashmir HC says residents of union territory can approach NHRC if rights violated

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The Jammu and Kashmir High Court has said residents of Jammu and Kashmir, if having any grievance regarding violation of their human rights, may have to approach the National Human Rights Commission while deciding upon a plea against the investigation initiated by the Jammu and Kashmir Police into the alleged Shopian fake encounter of three labourers in July this year.  

The division bench of Chief Justice (Acting) Rajesh Bindal and Justice Puneet Gupta disposed of the PIL due to common prayers in another writ petition filed earlier in Jammu bench, and the same being a writ petition of private nature. A petition in public nature by a 3rd person regarding the same plea as filed earlier cannot and should not be entertained as it has no locus or cause of action to raise the dispute, the Court has said. 

The Court stated, “The claim made is with reference to a specific incident for which the petitioner has not been authorized by the aggrieved party to raise a dispute.”

Also, “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 the Supreme Court in the cases referred to by the petitioner himself” i.e. People’s Union for Civil Liberties v. State of Maharashtra, Extra Judicial Execution Victims Families Association v. Union of India and People’s Union for Civil Liberties v. State of Maharastra.

The petitioner prayed to quash the investigation by Jammu and Kashmir police as being illegally related to Shopian Fake Encounter of the victims (namely Ibrar Ahmad (16), Mohammed Ibrar (21) and Imtiaz Ahmad (26)) and by the writ of mandamus to register an FIR and entrust the investigation to an SIT, further constitute a High Powered Committee to analyze the aspect of criminalizing custodial killings and fake encounters, constitute the state human rights  courts in terms of Jammu and Kashmir territory and compensation of Rs 1 crore each to the family of victims. The counsel for the petitioner also stated that the same is even admitted by the subsequent press release given by the armed forces.

As argued by the counsel for the respondents, T.M. Shamshi (ASGI), the plea is not in larger public interest and the parents of the deceased are already pursuing the remedies available to them, so far as the Constitution of the Human Rights Commission is concerned Section 21 of the Protection of Human Rights Act, 1993 does not provide for constitution of a Human Right Commission in Union Territory as the same talks about constitution of a Commission in the States. The persons aggrieved can always approach the National Human Rights Commission.

The Court concluded in the aforesaid respect that, as far as constitution of the State Human Rights Commission in Union Territory of J&K is concerned, the court agrees with the respondents. After enactment of the Reorganization Act, the Jammu and Kashmir ceases to be a State as now it is a Union Territory.

The Court also appended that as far as human rights courts in Union Territory of J&K is concerned, a notification issued by the Department of Law, Justice and Parliamentary Affairs, Government of J&K; the Court of the learned Principal Sessions Judge of each district has been designated as human rights courts. Hence, the grievance of the petitioner to that extent does not survive.

The Court added, “Prior to the enactment of the Reorganization Act, the Jammu & Kashmir Protection of Human Rights Act, 1997 was applicable in J&K. In exercise of powers conferred there under, the J&K State Human Rights Commission had also been constituted, which was wound up after the enactment of the Reorganization Act. The residents of J&K, if having any grievance regarding violation of their human rights, may have to approach the National Human Rights Commission.”

While disposing of the petition, the court concluded that the matter regarding section 21(7), Protection of Human Rights Act, 1993 needs to be examined by the Government so that the proper remedies are available with the aggrieved persons who are having any grievance regarding violating of their human rights.

Also Read: Srinagar court restrains Shehla Rashid’s father from saying anything defamatory against her


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