Supreme Court Justice Sanjay Kishan Kaul recommended on Monday the establishment of an impartial “Truth and reconciliation Commission” to investigate and report on human rights violations by both state and non-state actors in Jammu and Kashmir since the 1980s, asserting that the “wounds need healing.”
Justice Kaul, in a separate but concurring verdict, supported the Centre’s decision to revoke Article 370, which granted special status to Jammu and Kashmir.
Hailing from the region, Justice Kaul expressed empathy for the heavy toll borne by men, women, and children in the area due to the volatile situation. He emphasised the profound consequences of inter-generational trauma on an already fractured society during his travels.
“I cannot help but feel anguish for what people of the region have experienced and am constrained to write this Epilogue,” he stated in his 121-page verdict.
Justice Kaul further acknowledged numerous reports documenting human rights violations in the region over the years. He asserted that truth-telling provides victims with an opportunity to share their stories, leading to acknowledgment from those responsible and society as a whole, paving the way for reconciliation. Drawing on global examples, he highlighted the effectiveness of truth and reconciliation commissions, citing South Africa’s commission during apartheid.
He mentioned that in the past, various sections of the Kashmir valley have also called for the establishment of a truth and reconciliation commission.
“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 stated.
Justice Kaul acknowledged the distrust among the youth and emphasised the government’s duty to devise the commission’s structure and determine the best way forward. Former Jammu and Kashmir Chief Minister Omar Abdullah’s calls for a truth and reconciliation commission were also noted.
Recognising the challenge of recommending such a panel falling beyond the court’s jurisdiction, Justice Kaul argued that transitional justice aligns with transformative constitutionalism. He emphasized the constitutional duty to investigate violations and proposed that the truth and reconciliation commission align with constitutionalism.
Referring to past court decisions, Justice Kaul cautioned that the commission should not function as a criminal court but adopt a humanised and personalised process based on dialogue, inclusiveness, and the principles of ‘ubuntu.’ He envisioned a reparative approach facilitating forgiveness and the formation of a shared national identity.
Justice Kaul concluded that the commission is one avenue toward systemic reform and expressed hope for achieving much when Kashmiris embrace the past, allowing those compelled to migrate to return with dignity.
Justice Kaul on Monday also said that “the mass exodus of the Kashmiri Pandit community changed the very cultural ethos of Kashmir and there has been little turn back despite three decades having gone by since it got triggered by growing fundamentalism fuelled from across the border”,
In his separate verdict, Justice Kaul noted the history of Kashmir, including the “troubled times” of the 1980s, as well as the recent developments.
In his 121-page concurring judgement, Justice Kaul also said that “God and nature have been very kind to Kashmir valley. Unfortunately, the human species has not been so considerate. The 1980s saw some troubled times culminating in the 1987 elections, which saw allegations and counter-allegations,”
There was a growth in fundamentalism fuelled from across the border, and the 1971 creation of Bangladesh was not forgotten, he added
Justice Kaul further stated that “Unemployed and frustrated youth were trained as militia and were sent back into Kashmir to create chaos. It was a major change for people who, irrespective of faith, were known for peace and tolerance. The Kashmiri Shaivism and Islamic Sufism were taken over by such militant tendencies,”
“There was a mass exodus of the Kashmiri Pandit community, threatened for their life and property, changing the very cultural ethos of Kashmir. There has been little turn-back despite three decades on this issue,” he said, adding it was a proxy war on the territory of India with “active support from across the border”, he added
Justice Kaul noted in order to curtail the activities of terrorists, either from across the border or indigenous, the armed forces and paramilitary forces were brought in.
“The kidnapping of the daughter of the then Home Minister Mufti Mohammad Sayeed, and her subsequent release in exchange for terrorists detained, lit the last match, which produced such unprecedented fire that it engulfed the whole valley,” he noted.
“The bottom-line is that today’s generation aged 35 years or younger have not seen the cultural milieu of different communities, which formed the very basis of the society in Kashmir,” he added.
