JAMMU, Dec 15: Legal Luminaries of the Union Territory of Jammu and Kashmir are perplexed as to why seven commissions were winded-up by the central government through Jammu and Kashmir Reorganisation Act-2019 when the acts through which these commissions had come into life were almost replica of the central acts.
Moreover, in some cases, these acts were much stronger than the central acts. Centre kept 166 state acts intact and repealed 153 acts including acts those through which Human Rights Commission, Commission for Persons with Disability, Information Commission, Consumer Commission, Women and Child Rights Commission, Accountability Commission and Electricity Regulatory Commission had come into being. All these commissions were dealing with cases of the aggrieved.
With one stroke of pen, the commissions were winded-up and those at the helm directed to handover the records and files to the departments servicing these commissions. Law department was asked to take over the record (read Cases pending with these commissions) from Human Rights Commission and Accountability Commission.
Commission for Persons with Disability alongwith Women and Child Rights Commission were told to handover record to the social welfare department. Information Commission was asked to handover record to the General Administration Department (GAD). Consumer Commission and Districts Consumer Forums were told to immediately handover the record to the Department of the Food, Civil Supplies and Consumer Affairs. State Electricity Commission was told to give all what it had as record to the Power Development Department (PDD).
Legal experts are wondering why an alternate arrangement was not put in place before repealing the state acts, which gave birth to these important institutions. Treating cases of corruption, appeals, complaints, RTI applications and applications for immediate relief merely pieces of paper or in other words, files is difficult to comprehend, is what Advocates and retired Judges, who wish not to come on record are saying. In a state like J&K, they ask, you should not have done things in such hurry.
Sources reveal that nearly 4000 cases were pending in these statutory bodies at the time when the J&K State acts under which these bodies were constituted were repealed as per the provisions of Jammu and Kashmir Reorganization Act and Central acts became applicable to the Union Territory of Jammu and Kashmir.
General Administration department accorded the sanction for winding up of these seven commissions namely State Accountability Commission, State Consumer Disputes Redressal Commission, State Human Rights Commission, State Electricity Regulatory Commission, State Information Commission, State Commission for Protection of Women and Child Rights and State Commission for Persons with Disabilities on Oct 23, 2019 to be in effect from Oct 31, 2019.
But the cases that were pending in these commissions were not referred to any National Commission or any other judicial or quasi-judicial body. Instead, Secretaries of these commissions were directed, through Government orders, to send the case files and records pertaining to these Commissions to concerned Administrative Departments.
Without any roadmap for the hearing of cases, response to complaints or any final recommendation, the cases have ceased to be cases and have become simple records until a new Commission, institution or Lokpal is formed or an existing institution through proper notification is given the power to address the pending cases.
Meanwhile, a large number of complainants or appellants are confused about whom to approach for the redressal of their complaint. According to a Times of India report, the order has been issued to make new commissions which will be governed and monitored by central bodies like the National Human Rights Commission in accordance with the J&K Reorganisation Act, 2019.
But the quest for justice of these appellants has been put on hold for an unspecified time-frame since J&K Reorganisation Act does not specify how these cases and complaints will be dealt with before new Commissions are constituted. What further aggravates the appellants is that the cases have not been transferred to relevant National Commissions for interim relief either.
“With Jammu and Kashmir becoming a Union Territory, we assumed that the complaints pending with State Commission for Women and Child Rights will be given to National Commission for Women. Yet, the orders suggest transferring of files to Social Welfare Department which will do nothing for addressing the complaints. The files will remain unopened. If J&K is a Union Territory and the jurisdiction of Central Laws are applicable directly here, then why not send these complaints to National Commission? Even then, it would be a huge burden on these aggrieved women to follow up their complaints in the Commission by travelling to Delhi,” said a member of State Women Commission.
J&K State Consumer Disputes Redressal Commission is a quasi-judicial body which is part of the three-tier structure meant to ensure protection of Consumer rights. According to sources, near about 2500 cases were pending for disposal in the State Consumer Disputes Redressal Commission up until Oct 23 when order came for its winding up. The records of these cases, as per a Government order have to be transferred to Department of Food Civil Supplies & Consumer Affairs. Confusion persists regarding the existence of District consumer forums which were also constituted as per Jammu and Kashmir Consumer Protection Act which has been repealed.
“I had appealed a case in the State Consumer Dispute Redressal Commission and the case proceedings went on for two years. Now, seven months ago, the hearings ended and the appeal was reserved for order. Seven months passed by and it does not matter in whose favour the order would have been but now the commission itself is no more. Where do I go for justice? Now when a new commission is formed, will it straight away give a judgement or will the hearing start all over again? I have already spent nearly three years over this case and now I have to wait till a new commission is formed which will take, I don’t know how long, months or years maybe. There is no justice for common man,” said an appellant Ajay Kumar.
J&K State Human Rights Commission has also been asked to hand over all records and electronic gadgets to separate departments like Law Department and Estates Department. According to an Amnesty International report, Jammu & Kashmir State Human Rights Commission, since its inception until 31 March 2019 had instituted 8529 cases of human rights violations in Jammu & Kashmir, out of which 7725 cases were disposed. As per the official records, it made recommendations in 1862 cases during this period. In two years, between 1 April 2017 and 31 March 2019, the Commission received 1174 cases and disposed of 1244 cases.
According to sources, currently 600 cases were pending in the State Human rights commission, the future of whose disposal are unknown even as the jurisdiction of National Human Rights Commission has gotten extended to Jammu and Kashmir.
As per official record, 233 Second Appeals and 131 complaints under the Jammu and Kashmir Right to Information Act were pending for disposal in the State Information Commission when it was wound up. RTI Activist Balwinder Singh said that Jammu and Kashmir’s Right to Information Act was stricter than the Central Act since it made the second appeal time-bound.
“The Central Information Commission is already flooded with so many RTI applications and there is no provision for time-bound response to the second appeal. Moreover, now one will have to head over to New Delhi for appealing which does not strengthen Right to Information in the state and rather weakens it,” said Balwinder Singh, an RTI Activist.
Questions have been raised about functionality of these commissions. The State Women’s Commission had already been without a chairperson for more than a year. Former chairperson Nayeema Ahmad Mehjoor resigned in June 2018 and Vasundhara Pathak Masoodi was appointed as the chairperson a year later in July 2019. Earlier, the commission was without a chairperson for seven years, until 2010. State Human Rights Commission was flooded with cases, especially from Kashmir Valley. However, on many occasions, the recommendation of this commission were not accepted by the government.
State Information Commission was functional with just one Information Commissioner Ashraf Mir in the absence of another Information Commissioner and Chief Information Commissioner. Mohammad Ashraf Mir, ex-secretary legislative council was appointed as State Information Commissioner on October 12, 2017 and after the appointment of Khurshid Ahmed Ganai as Advisor to the Governor on June 29, 2018, State Information Commission (SIC) was left without a head for more than a year before its winding up.
As for the State Accountability Commission, over the years it had become a toothless tiger with most of the Commission’s orders getting stayed by the Jammu and Kashmir High Court. Advocate Sheikh Shakeel who has appeared in State Accountability Commission for various cases said, “The Commission had failed to deliver after resignation of Justice (retd.) R.P. Sethi. During his tenure, the Commission had won the faith of people but government ensured that the Commission was weakened to the extent that Justice (retd.) R.P Sethi had to resign.”
Mufti Mohammad Sayeed during the PDP-BJP coalition in 2015, had got the Act drastically amended to allow appointment of two more members in the Commission. The commission’s power to take suo moto cognizance and order registration of criminal cases against incumbent and former ministers and legislators was challenged first in J&K High Court and while the powers were upheld in the High Court, J&K State Government filed a Special Leave Petition in Supreme Court leaving State Accountability Commission mainly dysfunctional.
J&K State Commission for Persons with disability was constituted in 2016, following the Central Act and as an outcome of amendment in the existing Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998.
According to social activist Javed Ahmed Tak, “It had been a long-pending demand of our people that the commission be constituted. The state act was formed in 1998 and only after the Central Act for Persons with Disabilities was passed, the govt. of Jammu and Kashmir also constituted the commission. The commission solved many of our matters, compensated people and it was a ray of hope for us.”
Regarding the winding up of the commission, Tak who was shot by terrorists and is disabled himself said, “Only recently people had started approaching the commission. Abhi toh files lagna shuru hui thi. We had problem with SSRB regarding recruitment but because of the commission, our work used to get done. Commission had just recently made a committee regarding the accessibility issues in government buildings. Funds were yet to be sanctioned but now we do not know what will become of the matter. This commission was fully functional but now that it has been wound up, alternate arrangement needs to be made.”
J&K State Electricity Regulatory Commission had been lying totally dormant and inoperative since the year 2016 since the government had failed to appoint its chairman and two members even though Jammu & Kashmir Electricity Act 2010 both have strict guidelines about the appointment of chairperson and both members for SERC within one month of the date of occurrence of any vacancy. Lokesh Jha was appointed as the chairman of JKSERC only on May 2019.
But while State Government did nothing to ensure the proper functioning of all these Commissions, now the decision to wind-up these Commissions without making interim arrangement for hearing of cases and redressal of complaints shows unplanned approach of Central government in dealing with matters pertaining to the issues of common people of Jammu and Kashmir.
“The order to send records of these commissions to administrative department shows that the cases are being treated as mere files. Trucks are being filled and dumped at Food and Supplies Department or Social Welfare Department. No one knows who will deal with these cases now and till when they will remain under lock and key,” said Advocate H.C Jalmeria.