Implications of SHRC order

Gautam Sen
Jammu & Kashmir State Human Rights Comm-ission (JKSHRC) has in a ruling on 10th July this year, awarded a compensation of Rs. ten lakh to Farooq Ahmed Dar and directed the Jammu & Kashmir Government to comply within six weeks. The compensation is in response to petition filed by Mohammed Ahsan Antoo, Chairman, International Forum for Justice & Protection of Human Rights against the 9th April, 2017 incident when, Farooq Ahmed Dar, a resident of Chill Khansahib in Beerwah police station`s jurisdiction in Budgam district, was tied to an Army jeep`s bonnet and driven around by a unit of Army-affiliated Rashtriya Rifles (RR) to act as a deterrent for stone pelters violently protesting against holding of the bi-elections to Srinagar Lok Sabha constituency on 9th April, 2017.
The context of the RR unit`s action was widespread opposition and civic unrest against the bi-election in Srinagar in the backdrop of continuing disturbances post-killing of Burhan Wani-a Hizbul Mujahiddin militant last year. There was riotous situation created by marauding mobs who had surrounded a polling station and was about to burn down the booth when polling was in progress with polling personnel and some voters inside and security forces in the immediate periphery. A column of RR had responded to the local police`s call for help, under the leadership of Major Leetul Gogoi, had observed Dar, a local Kashmiri, inciting the local mob to pelt stones and burn down the booth with people inside.
The image of the Dar being moved around seated and tied to the bonnet of the RR jeep had gone viral in social and electronic media. The incident had drawn criticism from various quarters, human rights groups, civic society in the Valley. A former Northern Army Commander, retired Lt. General, H.S.Panag has  tersely observed that the image of the incident will haunt the Army for a long time to come. The incumbent Army Chief have however, commended Major Gogoi for his so-called innovative way of combating the unrest and saving lives, notwithstanding that a court of inquiry was constituted by the Army with tacit consent of higher defence authorities apropos the sensitivity of the matter.
The point at issue is whether, the JKSHRC has acted true to its legal ambit and spirit of its statutory jurisdiction. Another pertinent factor is whether, Justice (retired) Bilal Nazki, Chairman of JKSHRC and the august institution he heads, reckoned the fallout of the ruling, on the political and the human rights scenario of the state in its totality.
The answer to the first point may be viewed in the affirmative. Jurisdictionally, the JKSHRC has acted within its terms of reference and legal authority. This view is substantiated when justaposed with its decision not to impose any penalty on Major Gogoi as demanded by the petitioner. This is borne out by the JKSHRC order which mentions on the limited applicability of the Jammu & Kashmir Protection of Human Rights Act-1997, which governs the functioning of the JKSHRC to areas not covered under Lists I and III of India`s Constitution and its consequent handicap in examining the conduct of the  Army.
However, the JKSHRC seems to have totally de-linked its decision to the causes and circumstances leading to the incident. These have not been accorded due weightage or deemed mitigating factors against the RR officer`s action. Major Gogoi had candidly narrated in the public domain the circumstances of his action, as an outcome of his individual spot decision and not driven institutionally in a premeditated way, on the spur of the moment when the situation was fast deteriorating and about to spin out of control and involve further mayhem.  Loss of lives and individual and public property was avoided owing to Dar being made a shield against the further assaults by the mob on the security forces. Justice Nazki and the JKSHRC had instead, taken a high  moral ground referring to the eminent Indian Supreme Court Judge, V. R. Krishna Iyer by citing one of his judicial pronouncements wherein, the latter had opined that “zoological culture cannot be compatible with reverence for life, even of a terrible criminal“.
The Union Information & Broadcasting Minister has however, gone on record strongly criticising the JKSHRC ruling. He has his reasons for taking such a stand when, the Central security forces and the Army are at the receiving end of unmitigated violence being perpetrated by the separatists` backed street protestors and the militant-infiltrated mobs in the Valley. Nonetheless, it may  be appropriate for the Central authorities to let the State Government deal with the implications of the JKSHRC order. This will be politically and legally prudent considering that the State continues to have constitutional responsibility for law and order and the Army is duly empowered under the Armed Forces Special Powers Act which operates with the consent of State Government only,  for a range of action in its security duties which are beyond the pale of judicial review.
The State Government will be justified if it takes a stand contesting the JKSHRC ruling reckoning that, Dar was not tortured in the strict sense, nor hurt while being moved around tied and seated on the jeep`s bonnet. The resultant acute stress disorder of Dar which is mentioned in the Srinagar Medical College & Hospital, report and cited in the JKSHRC order, was triggered by his actions only. There was no direct threat to life and limb of either Dar or the protestors, from Major Gogoi and his RR unit.
The JKSHRC had rationalised its order for compensation to Dar by mentioning the `public humiliation, physical and psychological torture, stress, wrongful restraint and confinement` suffered by him. The JKSHRC has overlooked the nexus between the genesis of the circumstances leading to the unique restraint imposed on Dar and consequent reduction in violence in the affected zone and obviating deaths or maiming of individuals on the scene. Prima facie,  it appears that Dar allowed himself to be used as an instrument and an accomplice towards causing public unrest. There is therefore enough raison d`etre for the State Government to move the Jammu & Kashmir High Court for initially obtaining an injunction in execution of the JKSHRC order and subsequently its modification of the JKSHRC order of 10th July, 2017. Those who goaded Dar to incite the local marauders, the circumstances of his action and the proportionality of Major Gogoi`s action could then be delved into within a realistic political framework.
In the circumstances prevailing in Jammu & Kashmir today, it may not be inappropriate to recall the famous British missionary, Tindale Biscoe, who came to Kashmir at end of the nineteenth century. Biscoe had observed in his epic work `Kashmir in Sunshine and Shade` that, “Kashmir has been conquered and reconquered by invaders, who have murdered, oppressed and enslaved their ancestors, and so ground the life and heart out of them that their better selves have been crushed.“ A new incarnation of invaders from within and without seems to be trying to crush the Kashmir`s spirit from within.
(The author  is a retired IDAS officer who has served in senior positions in Government of India)
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