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Need ‘truth, reconciliation’ panel: Justice Kaul highlighted ordeal of the Kashmiri Pandits
New Delhi: A judgment authored by justice Sanjay Kishan Kaul on the abrogation of Article 370 on Monday highlighted the ordeal of the Kashmiri Pandits, who were forced to flee their homeland over three decades ago in the face of brutal violence by fundamentalists, recommending a structural investigation of the events and a Truth and Reconciliation Commission to rebuild the social fabric and heal wounds
New Delhi: A judgment authored by justice Sanjay Kishan Kaul on the abrogation of Article 370 on Monday highlighted the ordeal of the Kashmiri Pandits, who were forced to flee their homeland over three decades ago in the face of brutal violence by fundamentalists, recommending a structural investigation of the events and a Truth and Reconciliation Commission to rebuild the social fabric and heal wounds.
Justice Kaul, a native of Srinagar, penned an emotional epilogue, making an appeal to the Union government for the setting up a Truth and Reconciliation Commission, which he said would prompt “a collective telling of the truth” and an opportunity for the victims to narrate their stories to pave way for future reconciliation.
“I recommend the setting up of an impartial Truth and Reconciliation Commission. The commission will investigate and report on the violation of human rights both by State and non-State actors, perpetrated in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation,” said justice Kaul, recalling how the insurgency led to the persecution and eventually the migration of one part of the population of the state in 1989-90.
To be sure, justice Kaul’s epilogue specifically mentioned the exodus from the Valley of the Kashmiri Pandit community but did not confine the remit of the commission only to one community.
“It is something that our country has had to live with and without any redressal for the people who had to leave their home and hearth. It was not a voluntary migration...It is my sincere hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity. Whatever has been, has been but the future is ours to see,” he underscored.
According to some estimates, notably by the Kashmiri Pandit Sangharsh Samiti (KPSS), of the 75,343 Kashmiri Pandit families in January 1990 , more than 70,000 fled between 1989 and 1992. The flight continued until 2000. The KPSS has placed the number of Kashmiri Pandits killed by militants from 1990 to 2011 at 399, the majority during 1989-90.
The judge also clarified that his appeal to the Centre and the state for constituting the commission should not be construed as a call for turning the body into a criminal court to punish people but that the body must facilitate a reparative approach that enables forgiveness for the wounds of the past and forms the basis of achieving a shared national identity.
The epilogue recorded the history of J&K, lamenting that a decision by a constitutional court on the abrogation of Article 370 ought to put “We, the people” of Jammu & Kashmir at the heart of the debate. “The Valley of Kashmir carries a historical burden. It has a social context...They have carried the burden as victims of the conflict for several decades,” rued justice Kaul, citing the invasion of the Valley in 1947 and subsequent episode of insurgency and violence that necessitated calling in the army because the integrity and sovereignty of the country was itself endangered.
“Armies are meant to fight battles with enemies of the State and not really to control the law-and-order situation within the State but then, these were peculiar times. The entry of the Army created its own ground realities in their endeavour to preserve the integrity of the State and the nation against foreign incursions. The men, women and children of the state have paid a heavy price,” added justice Kaul.
As someone who still has a home in J&K, the judge regretted that his visits have made him witness the rupture of the social fabric over the years and the unfortunate consequences of intergenerational trauma on an already fractured society.
“I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this epilogue. In order to move forward, the wounds need healing. What is at stake is not simply preventing the recurrence of injustice, but the burden of restoring the region’s social fabric to what it has historically been based on – coexistence, tolerance and mutual respect,” justice Kaul emphasised.
The first step to strengthen the Valley’s social fabric, the judge said, is to achieve a collective understanding of the human rights violations, perpetrated both by State and non-State actors, against the people of the region.
“There have been numerous reports documenting these incidents over the years. Yet, what is lacking is a commonly accepted narrative of what happened, or in other words, a collective telling of the ‘truth’. Internationally, the right of victims of human rights violations to the truth is an end in itself. It encompasses a structural investigation of the events and socio-political structures that led to the atrocity, the particular circumstances of individual suffering, and an authoritative reporting of the results of the investigation,” justice Kaul’s epilogue read.
While there are different ways of achieving reconciliation, the judge said, Truth and Reconciliation Commissions have been particularly effective globally, referring to South Africa’s experiment to investigate human rights violations perpetrated during Apartheid -- one that served as a means of reckoning or catharsis for victims, and fostered peace building.
Justice Kaul referred to a report about the South Africa’s Truth and Reconciliation Commission as to how perpetrators of apartheid came forward openly in front of the television cameras, owning up to their crimes, and leading to systemic changes to minimise any possibility of their recurrence.
“This commission should be set up expediently, before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation,” said the judge, pointing out that it should be left to the government to devise the manner in which this should be set up, and to determine the best way forward for the commission.
Acknowledging that his recommendation was beyond the realm of the Supreme Court, justice Kaul stressed that the concept of constitutionalism is entrenched into encompassing responsibility of both State and non-State actors with respect to human-rights violations and thus, the recommendation augurs well with constitutionalism.
“As a word of caution, the commission, once constituted, should not turn into a criminal court and must instead follow a humanized and personalized process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different viewpoints and inputs from all sides,” he said.
HT reached out to the MHA and J&K L-G for a response on the suggested panel, but didn’t get a reaction immediately.
