(This Judgment Delivered at Srinagar Bench)
N. Paul Vasanthakumar, C.J.
1. This writ petition is filed by the Jammu and Kashmir Peoples Forum focusing the grievance that in the State of Jammu and Kashmir the State Human Rights Commission has become non-functional from 29.06.2014 as the Government of Jammu and Kashmir has failed to appoint the Chairperson and members of the State Human Rights Commission for one reason or the other and a direction is sought for commanding the State to take steps for making the appointment of Chairperson and four members of the JandK State Human Rights Commission.
2. It is the contention of the petitioner, which is a nongovernment organization registered by virtue of a trust deed dated 31.01.2013 with an object of protection of Human Rights, that the State Legislature has enacted the Jammu and Kashmir Protection of Human Rights Act, 1997 ( Act. No. XV of 1997) which was notified vide SRO 1 dated 01.01.1999. As per the said Act, one Chairperson and 4 members are to be selected by the Committee consisting of the Chief Minister as Chairperson, Speaker of the Legislative Assembly, Chairman of the Legislative Council, Minister In-charge of Ministry of Home in the State, Leader of Opposition in the Legislative Assembly and Leader of Opposition in the Legislative Council as members. The said Committee is constituted in terms of Section 4 of the Act. As per the Act, the Chairperson must be a sitting or retired Judge of the High Court and one member must be a sitting or retired Judge in the cadre of District Judges and three members must be persons having practical knowledge and experience in matters relating to the human rights. The term of office as per Section 6 of the Act is three years or on attaining the age of 70 years whichever is earlier. The same was amended by Amendment Act No. V of 2015 increasing the term of the office to five years and the upper age limit was also increased from 70 years to 75 years.
3. The petitioner has narrated the names of the Chairpersons by stating that the Chairperson lastly served only up to 24.10.2011 and thereafter no Chairperson was appointed and the State Government designated senior members as Chairperson from time to time and the lastly appointed acting Chairperson also retired on 28.06.2014 and all the members of the State Human Rights Commission also relinquished their respective office on completion of their tenure and the Commission has become non-functional from 29.06.2014. The petitioner submitted various representations to the State Government to appoint the Chairperson and members of the Commission and copies of the representations dated 30.09.2014, 24.03.2015 and 15.05.2015 are filed in the annexures to the writ petition, and no action being taken by the State Government, this writ petition is filed stating that due to nonfunctioning of the State Human Rights Commission more than 2000 complaints alleging human rights violations are pending disposal and the litigants are left with option either to approach this Court or the Civil Courts instead of State Human Rights Commission.
4. When the matter was listed for hearing on 08.09.2015 the learned Deputy Advocate General had taken notice and sought for time to file response. On 15.09.2015 the learned Advocate General produced written instructions given to him, stating that a Committee to appoint the Chairman and members of the State Accountability Commission was being convened on 17.09.2015 and immediately thereafter the Committee to appoint the Chairperson and Members of the State Human Rights Commission shall also be convened.
5. Considering the said statement made by the learned Advocate General on the basis of the written instructions given by Additional Secretary to Government of JandK, Department of Law, Justice and Parliamentary Affairs, this Court on 15.09.2015 adjourned the matter for four weeks, giving time to the State Government to appoint the Chairperson and members of the Commission and for filing a report.
6. The respondent filed objections on 06.10.2015 by stating that the appointment of the Chairperson and members of the State Human Rights Commission is under active consideration of the Government. The time of four weeks granted by this Court had expired on 14.10.2015. Up to this date, according to the learned counsel for the petitioner, no meeting was convened to select the Chairperson and members of the Commission.
7. The functions and the powers of the Commission are stated in Section 13 of the Act, namely:-
(a) inquire, suo moto or on a petition presented to it by the victim or any person on this behalf, into complaint of-
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation or violation of human rights pending before a court with the approval of such court;
(c) visit, under intimation to the Government, any jail or any other institution under the control of the Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereof;
(d) review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommended measures for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) undertake and promote research in the field of human rights;
(g) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means:
(h) encourage the efforts of non-governmental organizations and institutions working in the field of human rights;
(i) such other functions as it may consider necessary for the promotion of human rights.
8. The above mentioned powers and functions assigned to the State Human Rights Commission as well as the powers conferred to make enquiries, as contemplated under Section 14 of the Act and investigation under Section 15, we are of the view that the State Government has failed in its obligation/duty cast upon it under the Act and, therefore, this Court has to issue directions as it is a settled principle of law that if there is inaction on the part of the State Government in carrying out the obligation/duty, the Courts are duty bound to step-in and issue directions.
9. A similar issue arose before Hon ble the Supreme Court in the decision reported in (2014) 10 SCC 406 (K. Saravanan Karuppasamy and anr v. State of Tamilnadu and ors) in respect of keeping the office of State Human Rights Commission, Tamilnadu vacant since August, 2011. While passing directions with reference to Protection of Human Rights Act, 1993 (Central Act), in paragraph 21 it is held thus:-
21. Protection of Human Rights Act 1993 has been enacted to provide for better protection of human rights by constituting a National Human Rights Commission and also State Human Rights Commission and Human Rights Courts. Section 2(1)(d) of the Act defines human rights as the rights relating to life, liberty, equality, dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The above rights are traceable to Part III of the Indian Constitution guaranteeing Fundamental Rights and particularly Articles 14, 19, 20, 21, and 22. Chapter V of the Act consisting of Sections 21 to 29 deals with the constitution of State Human Rights Commission and its functions thereto. State Commission consists of a Chairperson who has been a Chief Justice of a High Court and four Members. The Act has put in place various remedial measures for prevention of any human rights violations and confers power upon the NHRC/SHRC to inquire suo motu or on a petition not only of violations of human rights or abetment thereof or even negligence exhibited by a public servant in preventing such violations. The statute has conferred wide range powers upon NHRC/SHRC. The Commission is therefore required to be constituted with persons who have held very high constitutional offices earlier so that all aspects of good and adjudicatory procedures would be familiar to them. Having regard to the benevolent objects of the Act and the effective mechanism for redressal of grievances of the citizens against human rights violations, the office of Chairperson of SHRC cannot be allowed to remain vacant for a long time. State of Tamilnadu has always shown zero tolerance towards human rights violations and has always sent clear message of its commitment towards protection of human rights. We see no reason as to why the post of Chairperson, SHRC which is to be headed by a person who has been the Chief Justice of a High Court should remain vacant for more than three years. In our view, pending the State Government s request for amendment to Section 21(2)(a) of the Act which process will take long time, it will be in order if the State of Tamilnadu takes steps to fill up the vacancy of the post of Chairperson, SHRC, Tamilnadu in terms of Section 21(2)(a) by constituting a Search Committee at an early date.
10. In the light of the said decision of Hon ble the Supreme Court and having regard to the fact that the State Human Rights Commission functioned in the State of Jammu and Kashmir only up to 28.06.2014, we are of the firm view that petitioner has made out a case for issuing a writ of mandamus directing the respondents to appoint the Chairperson and four members of the JandK State Human Rights Commission within a period of four weeks from today so as to enable the Commission to function and dispose of complaints which are more than 2000 in number, as expeditiously as possible, to carry out the object and purpose of the Jammu and Kashmir Protection of Human Rights Act, 1997, i.e. for better protection of human rights and matters connected therewith or incidental thereto.
11. The time limit mentioned has to be strictly adhered to as the stand taken by the respondent in the objections filed on 06.10.2015 is that the appointment of Chairperson and the member of the State Human Rights Commission is under active consideration of the Government and the stand taken by the learned Advocate General on 15.09.2015, that immediately after the Committee meeting to appoint the Chairman and members of the State Accountability Commission, the meeting for selection of the Chairperson and the member of the State Human Rights Commission shall also be convened. No costs.