New Delhi, January 13th, 2011
Putting 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 has said that its recommendations do not interfere with any of the heads of legislation. Therefore, the Jammu & Kashmir Government pay a sum of rupees five lakhs to the next of kin of deceased rickshaw puller Mohan Lal as recommended by it in its proceeding dated 19th August, 2009.

Mohan Lal, a poor rickshaw puller, became a victim of police atrocity. He was suspected of involvement in some burglaries which had taken place at Jammu. On 21st June, 2003, he was picked up by Jammu Police from Amritsar and taken to Jammu for interrogation. There is medical evidence to indicate that he was subjected to third degree torture during interrogation. Ultimately, he died in District Police Lines Hospital, Jammu on the 2nd July, 2003. The incident was brought to the notice of the Commission by Mr. Suhas Chakma, Director, Asian Centre for Human Rights. On consideration of various reports, the Commission recommended that the Government of Jammu & Kashmir pay a sum of rupees five lakhs as monetary relief to the next of kin of the victim. But the State Government did not send compliance report and proof of payment.

Pursuant to the notice and the reminders issued by the Commission, the Government of Jammu & Kashmir gave a reply wherein the main contention raised is that the Commission has failed to release the statutory limitation in exercising its jurisdiction in the instant case. It is stated that Section (2) of the Protection of Human Rights Act, 1993 specifically 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. It is further stated that Entry of List II relates to Public Law and Order and Entry 2 of List II refers to Police in the Seventh Schedule of the Constitution of India 1950. Therefore, the subject matter of the instant case is squarely covered under the above two entries in List II as the alleged atrocities are attributed to the J&K Police and, therefore, the NHRC has no jurisdiction in the matter.

The Commission unable to accept the contention raised by the State has observed that the List II of the Seventh Schedule contains the Heads of Legislation in respect of which the State Legislature can make Legislation. Entry 2 of List II, of course, relates to Police (including railway and village police) subject to the provisions of entry 2A of List I. It 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). Of course under these, the State can make Legislation to regulate the public order or anything relating to it.

The Order passed by the NHRC is not regarding the violation of human rights, if any, arising out of any Legislation made by the State in respect of any of the Entries in List II. As the facts stated above, it would indicate therefore, that Mohan Lal, S/o Pheru Ram, a rickshaw-puller, who was taken into custody was allegedly tortured and killed. The acts alleged were not in discharge of maintaining any public order and there was no case registered against him. It was not as 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 jurisdiction of the NHRC has been excluded in respect of the subjects mentioned in List II of the Seventh Schedule. The impugned order does not interfere with any of the Heads of Legislation.

The Commission has asked for a compliance report along with proof of payment from the J&K Government within six weeks.

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