Article 370: Justice Kaul suggests a reconciliation panel

Supreme Court judge Sanjay Kishan Kaul on Monday recommended setting up of an 'impartial truth and reconciliation commission' to probe and report on human rights violations by both state and non-state actors in Jammu and Kashmir since the 1980s, saying the 'wounds need healing'.

Justice Kaul delivered a separate but concurring verdict upholding the Centre's decision to abrogate provisions of Article 370 bestowing special status upon the erstwhile state of J-K.

Justice Kaul, who hails from the erstwhile state, said men, women and children there have paid a heavy price due to the volatile situation, and during his travels he observed the consequences of inter-generational trauma on an already fractured society.

'I cannot help but feel anguish for what people of the region have experienced and am constrained to write this Epilogue,' he said in his 121-page verdict.

On the human rights violations of the people of the restive region, he said there have been numerous reports documenting these incidents over the years.

Justice Kaul said truth-telling provides an opportunity for the victims to narrate their stories, which facilitates an acknowledgement from those responsible for perpetuating the wrongs, and from society as a whole and this paves the way for reconciliation.

He said though there were different ways of achieving these objectives, truth and reconciliation commissions have been particularly effective globally.

Justice Kaul said South Africa's truth and reconciliation commission was set up to investigate human rights violations perpetrated during apartheid and it served as a means of 'reckoning or catharsis for victims, and fostered peace-building'.

He said in the past, calls for setting up a truth and reconciliation commission have also been echoed by different sections of the Kashmir valley.

"In view of the in-roads made globally, and endogenous requests for truth and 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," he said.

"In order to move forward, the wounds need healing," Justice Kaul said, adding, this commission should be set up expediently, 'before memory escapes', and 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. At the same time, considering the significance of the matter and the sensitivities involved, it is my view that it is for the government to devise the manner in which this should be set up, and to determine the best way forward for the commission," he said.

Former Jammu and Kashmir Chief Minister Omar Abdullah has been making demands for establishing a truth and reconciliation commission in the state for addressing the issues related to both Pandit and Muslim communities affected by protracted violence.

In his verdict, Justice Kaul said he was alive to the challenge that recommending such a panel was beyond the realm of the court.

"However, I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass responsibility of both state and non-state actors with respect to human rights violations," he noted.

"This includes the duty to take reasonable steps to carry out investigations of violations. It is in this context that the proposed truth and reconciliation commission accords with constitutionalism," Justice Kaul said.

He said the Constitution of India is designed to ensure that courts offer justice in situations where fundamental rights have been violated and in doing justice, historically, the courts have been sensitive to the social demands of our polity and have offered flexible remedies.

Referring to the apex court's Vishaka verdict, Justice Kaul noted it had issued guidelines to address workplace sexual harassment in the absence of a law which operated until the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

"As a word of caution, the commission, once constituted, should not turn into a criminal court and must instead follow a humanized and personalised process enabling people to share what they have been through uninhibitedly," he said.

Justice Kaul said it should be based on dialogue, allowing for different viewpoints and inputs from all sides.

"Taking a leaf out of South Africa's book, the principles of 'ubuntu', or the art of humanity, and inclusiveness should be central to the process. This will facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity," he said.

Justice Kaul added that the commission was only one of the many avenues towards the goal of systemic reform.

"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 said.

'Kashmiri Pandits did not migrate voluntarily'

It was not a 'voluntary migration', Justice Kaul said, while referring to the 'troubled situation' at the ground level in the Kashmir valley in the 1980s which triggered the exodus of Kashmiri Pandits.

Justice Kaul noted the valley of Kashmir carries a historical burden and has a social context.

"'We, the people of Jammu & Kashmir are at the heart of the debate. They have carried the burden as victims of the conflict for several decades originating from 1947 with the invasion of the valley," he said, adding that intervening political circumstances did not permit a redress to the fullest extent of the invasion.

He said the consequences remained in terms of parts of Kashmir being occupied by other countries and the second round of insurgency holds its origin to the latter part of 1980s.

"There was a troubled situation at the ground level, which was apparently not redressed. It culminated in the migration of one part of the population of the state in 1989-90. 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," Justice Kaul said.

He said the situation became so aggravated that the very integrity and sovereignty of India was endangered and the Army had to be called in.

"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," he said.

Justice Kaul said 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," he said.

"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 observed.

He noted that even the partition of India in 1947 did not impair Jammu & Kashmir's communal and social harmony.

"In this context, Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity!" he said.