For years, the Jammu and Kashmir sought to hide itself from the National Human Rights Commission (NHRC) by invoking its Special Status under Article 370 of the Constitution of India. However, in an extraordinary order on 27 December 2010, the NHRC set aside that immunity while giving its order on a complaint filed by Asian Centre for Human Rights with regard to the custodial death of one Mohan Lal.

Immunity set aside

The NHRC in its order dated 19 August 2009 directed the State Government of Jammu and Kashmir to pay a sum of Rs.500,000 to the next of kin of deceased rickshaw puller Mohan Lal. The deceased was suspected of involvement in some burglaries which had taken place at Jammu. On 21 June 2003, police from Jammu picked him up from Amritsar and took him to Jammu for interrogation. He was allegedly tortured in custody and shifted to District Police Line Hospital, Jammu on 1 July 2003 when his condition deteriorated. On 2 July 2003, he succumbed to his injuries. Based on findings in the report of post-mortem examination conducted by Medical Board of three doctors at Amritsar Medical College, the NHRC concluded that the deceased was subjected to torture during interrogation.

However, the Government of Jammu and Kashmir refused to comply with the 19 August 2009 order. In its letter dated 28 October 2010, the J&K State Government contended that NHRC does not have jurisdiction to give recommendations in a case of death in the State due to police atrocity in view of Section (2) of the Protection of Human Rights Act, 1993 which specifically excludes the operation of the said Act in the State of Jammu and Kashmir (J&K) in so far as it pertains to matters relating to the entries enumerated in List II of the VII Schedule of the Constitution of India.

On 27 December 2010, the NHRC set aside the contention of the Jammu & Kashmir Government that the NHRC does not have jurisdiction to give recommendations in a case of death in the State due to police atrocity. The Commission ruled that its recommendations do not interfere with any of the heads of legislation. The Commission observed that the List II of the Seventh Schedule contains the Heads of Legislation in respect of which the State Legislature can make laws. Entry 2 of List II only indicates that the State can make any Legislation in respect of Police – regarding their pay and allowances, rank or any matter relating to the discharge of the duty of the Police under the Police Act, if any. Entry 1 of List II relates to Public Order (but not including the use of any naval, military or Air force or any other armed force of the Union or any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power). The Commission opined that the State can certainly make Legislation to regulate public order or anything relating to it.[1]

The NHRC further ruled that the order passed by it in this case is not regarding any violation of human rights by enactment of any Legislation made by the State in respect of any of the Entries in List II nor was the alleged acts of tortured to death of the deceased discharged while maintaining any public order and there was no case registered against the deceased. It was not a part of any investigation also. It is a clear case where the police has tortured a person and killed him. Therefore, it does not come under any of the powers of Legislation of the State Legislature in respect of any of the Entries mentioned in List II of the State List. The impugned order does not interfere with any of the Heads of Legislation.[2]

Over the years, the NHRC has accepted the contentions of the Jammu and Kashmir State government and closed at least two similar complaints of ACHR.

The first complaint dated 22 January 2005 pertained to alleged custodial death of 50-year-old Abdul Gani Dar in the custody of Magam police station in Budgam district. The deceased Abdul Gani Dar was arrested by the Special Operation Groups (SOG) personnel from Jammu on 18 January 2005 in connection with his alleged involvement in the killing of six persons by militants at Kawoosa village on 15 November 2004. The police claimed that during interrogation the deceased complained of uneasiness and died while being taken to hospital. On 18 February 2005, the NHRC sent notice to the Director General of Police (DGP), J & K and called for an explanation from the Superintendent of Police (SP), Budgam district for not reporting the death of the deceased in custody as required under the guidelines of the NHRC. On 4 April 2005, the DGP forwarded the report dated 17 March 2005 received from the SP, Budgam which stated that the District Magistrate was informed about the circumstances under which the deceased died and the DM had ordered a Magisterial Inquiry into the case. On 4 August 2008, the NHRC directed the DGP, J & K and DM/SP Budgam to submit detailed reports as per NHRC’s guidelines in custodial cases along with their explanation. However, the authorities did not comply with the directions of the NHRC. On 13 April 2009, ACHR wrote to the NHRC requesting the Commission to – (i) invoke Section 13 of the Human Rights Protection Act, 1993 to summon the DGP requiring his personal appearance; (ii) direct the J & K Government to immediately submit the requisite reports; (iii) direct the J & K Government to pay an interim compensation of Rupees ten lakhs to the next of kin of the deceased. Interestingly, vide communication dated 3 March 2010 the NHRC informed ACHR that “in view of Sub Section 2 of Section 1 of the Protection of Human Rights Act, 1993, the proceedings are dropped.”

The second complaint of ACHR dated 9 June 2008 related to the gang rape of a 17-year-old minor girl allegedly by a police constable along with two of his civilian friends. The victim was allegedly kidnapped from Nowshera on the morning of 31 May 2008 when she was going to school. She was taken to residential quarter of the accused police constable Shabir Ahmed in Block No.6, Gulshan Ground in Jammu and gang raped. However, the victim managed to escape and was found by some residents in a critical condition profusely bleeding and clothes torn. On 17 June 2008, the NHRC took cognizance of the case and directed the SP, Jammu to send the reports. Vide his communication dated 20 September 2008, the DGP, J & K forwarded a report of the SSP, Jammu which confirmed the allegations of kidnapping and gang rape. The report also stated that a FIR under appropriate provisions of the Ranbir Penal Code was registered against the accused and all of them were arrested and charge sheet was filed against them. On 17 October 2008, concluding that it is a clear case of human right violation by a police official the NHRC issued notice to the J & K Government under Section 18 of the Human Rights Protection Act, 1993 to show cause as to why suitable monetary compensation should not be granted to the victim. The Commission also directed the authorities to inform it about any departmental action taken against the accused police constable within six weeks. The J & K Government did not respond despite sending reminders. As no response was received, the NHRC vide proceeding dated 6 July 2009 recommended payment of Rs. 2 lakhs to the victim and directed the Chief Secretary to submit compliance report along with proof of payment.

However, vide letter dated 11 March 2010, J & K Home department responded stating that a recommendation has already been made for discharge of the accused Constable Shabir Ahmed from service and also for withdrawal of President’s Police Medal awarded to him. With regard to the payment of compensation of Rs.2 lakhs to the victim, J&K government challenged NHRC recommendation stating that the NHRC does not have jurisdiction to recommend payment of compensation in view of the fact that the item “Police” falls in the state list of the 7th Schedule to the Constitution and therefore, the NHRC cannot recommend to the State Government in respect of acts of omissions and commissions by the State Police.

The NHRC found the contention of the J & K Government correct and transferred the case to the State Human Rights Commission of Jammu and Kashmir.

The case of Mohan Lal

Mohan Lal, a poor rickshaw puller, of Mahal village in Amritsar, Punjab became a victim of police atrocity. He was suspected of involvement in some burglaries that have taken place at Jammu. Mohan Lal was one of the suspects rounded up by the Gangyal police in Jammu in connection with the burglaries allegedly committed by the ‘Kala Kacha’ gang in different parts of Jammu. On 21 June 2003, a police team headed by Station House Officer (SHO), Gangyal police station and Probationary Deputy Superintendent of Police (DSP,) Abrar Choudhary picked him up from Amritsar, Punjab. Mohan Lal was tortured by some senior police officials while in custody at Gangyal police station, Jammu. He was hit on private parts and had ruptures on several parts of his body.

The victim reported that he was facing problems in passing urine and blood was oozing out along with urine. The victim was shifted to District Police Lines (DPL) hospital, Jammu on 1 July 2003 with grievous injuries due to torture. Although his condition continued to deteriorate, he was not shifted to General Medical College. Finally, he succumbed to the injuries at DPL hospital on 2 July 2003.

Post-mortem examination on the body of Mohan Lal was conducted twice. First, at Jammu and Second, at Amritsar on 4 July 2003. While the first post-mortem report mentioned only 16 ante-mortem injuries, the second post-mortem conducted at Amritsar by a three-member medical board comprising of Dr Ashok, Dr Manpreet Kaur and Dr Kirpal Singh revealed 41 ante-mortem injuries including incised wounds, blisters and electric current marks. In its remarks, the three-member medical board stated –

“Except injuries no. 7, 8 and 10 which are of postmortem origin, rest all the injuries are of Antemortem origin. In our opinion the preliminary impression about the cause of death in this case is Hemorrhage and Shock as a result of cumulative effect of injuries which are sufficient to cause death in ordinary course of nature.”[3]

ACHR’s Intervention

On 9 July 2003, the Asian Center for Human Rights filed a complaint before the National Human Rights Commission against the torture and custodial death of Mohan Lal, son of Pheru Ram of Amritsar, Punjab by the Jammu Police on 2 July 2003.

In its complaint, ACHR among others urged the NHRC to order an inquiry by the investigation wing of the NHRC to enable the NHRC to intervene with the court under section 12(b) of the Human Rights Protection Act of 1993 for prosecution of the culprits responsible for the custodial death of Mr Mohal Lal; pay an interim compensation of Rs 500,000 (five lakhs) to the family of Mr Mohan Lal and to direct the Indian Medical Association to conduct an inquiry into the violation of medical ethics during the conduct of postmortem of Mr Mohan Lal and take appropriate actions against the guilty doctors including cancellation of the registration certificates; and develop appropriate for elaboration and promotion of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[4]

On 25 July 2003, the NHRC registered the complaint and issued notice to the Chief Secretary, Government of Jammu and Kashmir calling for all relevant reports in the case and an explanation for not reporting death of the deceased in police custody.[5] As the State Government of Jammu and Kashmir did not reply, the NHRC sent reminders on 25 August 2003 and 11 September 2003.

On 14 October 2003, ACHR wrote to the NHRC requesting for summoning of the Chief Secretary and Home Secretary, Government of Jammu and Kashmir.

For years, NHRC indeed failed to keep ACHR informed about the case. Having no alternative, ACHR filed an application under the Right to Information Act and obtained the documents in March 2009. ACHR subsequently requested the NHRC for further intervention in the case.

Response of the State Government of Jammu and Kashmir

After repeated reminders, on 24 December 2003, the State Government of Jammu and Kashmir acknowledged that Mohan Lal was arrested by the police of Gangyal, Jammu on 21 June 2003. The report stated that the victim was released on 22 June 2003 with the assurance that he would help police to arrest Gorkha and his associates, who used to commit crimes in the area. The report also stated that during investigation it was found that Mohan Lal visited the police station on 25, 28 and 30 June 2003 and that on 1 July 2003, he complained that he was suffering from dysentery and dehydration and that he was dmitted in District Police Lines hospital, Jammu and died on 3 July 2003 during treatment. In an additional reply dated 8 March 2004, the State Government of Jammu and Kashmir submitted the copy of Magisterial Enquiry Report and Post-mortem Report. The Magisterial Enquiry Report did not suspect any foul play in the death of Mohan Lal while the Post-mortem report dated 3 July 2003 stated that the death was on account of hemorrhage and septicemia and 16 external injuries were recorded on the body of the deceased.

On 8 June 2005, the NHRC directed the State Government of Jammu and Kashmir to submit the inquest report, histopathological and Forensic Science Laboratory (FSL) with the final opinion of the Board of doctors as to the cause of death of the deceased within a month. However, the authorities did not submit the reports sought by the NHRC despite repeated reminders and continued to ignore for about two years before submission of the reports in April 2007.

The State Government of Jammu and Kashmir made all attempts to hide torture upon the victim. The NHRC relied upon the findings in second post-mortem conducted on the body of the deceased Mohan Lal by a Medical Board of three doctors at Medical College, Amritsar, Punjab which revealed 41 ante-mortem injuries including incised wounds, blisters and electric shock marks on the body of the deceased. On 19 August 2009, based on the findings in the second post-mortem report, the NHRC concluded that the victim died of torture in custody of the police and issued show cause notice to the State Government of Jammu and Kashmir under section 18 of the Protection of Human Rights Act, 1993 calling upon the State Government to explain why it should not be asked to give some monetary relief to the next of kin of the deceased. However, the State again ignored and did not respond.[6]

NHRC finally directed the State government of Jammu and Kashmir on 4 September 2009 to pay a sum of Rs.500,000 as monetary relief to the next of kin of the deceased Mohanlal and submit proof of payment within eight weeks.[7]

Instead, the State Government of Jammu and Kashmir refused to comply with the order on the ground that the NHRC does not have jurisdiction to give recommendations in a case of death in the State due to police atrocity in view of Section 2 of the Protection of Human Rights Act, 1993 which excludes the operation of the said Act to the State of J&K in so far as it pertains to matters relatable to the entries enumerated in List II of the VII Schedule of the Constitution of India 1950.

The stand of the Jammu and Kashmir government is ultra-vires. The NHRC has failed to point out that Mohan Lal was picked up from Punjab. If the NHRC were to accept the contention of the J& State government, it would mean that the J&K law enforcement personnel could pick up any person from any parts of India, violate their human rights and still enjoy immunity under Article 370.

Even if the State government complies with the NHRC order, the prosecution of the culprits must be addressed by the NHRC.

“Asian Centre for Human Rights” – Issue-02  October to December 2010

Endnotes:

[3]. Excerpts from the report of the second post-mortem conducted on 4.7.2003 at Amritsar, Punjab

[4]. ACHR’s complaint dated 9 July 2003

[5]. NHRC order dated 25 July 2003

[6]. NHRC direction dated 4 September 2009 to the Chief Secretary, Government of Jammu and Kashmir

[7]. NHRC direction dated 4 September 2009 to the Chief Secretary, Government of Jammu and Kashmir

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  1. […] Order extraordinaire: J&K’s immunity set aside by the NHRC (kashmirsolidaritymumbai.wordpress.com) Share this:TwitterFacebookLinkedInDiggStumbleUponTumblrPrintEmailRedditLike this:LikeBe the first to like this post. Leave a Comment by kracktivist on May 4, 2012  •  Permalink Posted in Advocacy, Announcements, Health Care, Human Rights, Justice, Kractivism, Law, Press Release Tagged Balakrishnan, Chairman, Ethical code, Human Right, India, National Human Rights Commission, New Delhi, NHRC […]

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