Justice Kaul Recommends "Truth & Reconciliation Commission" To Report Human Rights Violations In Jammu & Kashmir By State & Non-State Actors

Supreme Court judge Justice Sanjay Kishan Kaul, in his judgment approving the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, recommended the setting up of a "Truth and Reconciliation Commission" to investigate and report on the human rights violations carried out by both the State and non-State actors in the Kashmir valley at least since 1980s.In the epilogue to his judgment, Justice Kaul said that the valley of Kashmir carried a "historical burden" and the people residing there have been victims of conflicts lasting for several decades.He referred particularly to the to the problems created by insurgency in the valley in 1980s which culminated in the migration of "one part of the population" - Kashmiri Pandits- to other parts. Since the situation threatened the sovereignty and integrity of India, the Army had to be called in."Army is 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 and in their endeavour to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price," Justice Kaul said.He said that during his travels to the region, he could notice traces of "inter generational trauma" in the already fractured society. In order to move forward, the wounds need healing, he said while adding that what is important is not just the prevention of recurrence of injustice, but the restoration of the region's social fabric. He said that the region was noted for its communal harmony, which was not impaired even during the times of partition, which prompted Mahatma Gandhi to say "Kashmir was a ray of hope for the humanity.".Justice Kaul said that the first step to heal the wounds and to restore the social fabric was to "achieve a collective understanding of the human rights violations perpetuated both by the State and non-State Actors against the people of the region."Though there are numerous reports of violations, a commonly accepted narrative of what has happened or a "collective telling of the truth" is lacking. Observing that truth telling paves the way for reconciliation, Justice Kaul said :"I recommend the setting up of an impartial Truth and Reconciliation Commission. The Commission will investigate and report on the violations of human rights both by the State and non-state actors perpetrated in Jammu and Kashmir at least since 1980s and recommend measures for reconciliation."In this regard, he took a leaf from the Truth and Reconciliation Commissions set up in South Africa in regard to atrocities committed during the Apartheid era."The Commission must be set up before memory escapes. The exercise must be time-bound", he stated while adding that there was an entire generation of youth that had grown up with a feeling of distrust and it was to them that reparation was owed.He further stated–"Truth and Reconciliation Commission could facilitate a reparative approach, that enables forgiveness for the wounds of the past and forms the basis of achieving a shared national identity."Justice Kaul cautioned that the Commission must not turn into a criminal court and must focus on humanised and personalised process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different view points and inputs from all sides.While concluding, Justice Kaul expressed a hope that the return of the Kashmiri migrants will be facilitated."I 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".Other reports about the judgment can be read here.Case Title : In Re Article 370 of the Constitution of IndiaCitation : 2023 LiveLaw (SC) 1050Click here to read the judgment

Justice Kaul Recommends "Truth & Reconciliation Commission" To Report Human Rights Violations In Jammu & Kashmir By State & Non-State Actors

Padmakshi Sharma

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