SRINAGAR: One of the talking points from the landmark Supreme Court verdict that upheld the abrogation of Article 370 in Jammu and Kashmir (J&K), was a recommendation to set up a Truth and Reconciliation Commission (TRC) to heal the wounds of insurgency.
The proposal came from Justice Sanjay Kishan Kaul who hails from J&K and was part of the five-member Constitution bench that gave a unanimous judgment on the matter. The impartial panel, he said, must be tasked with probing and reporting on human rights violations by both state and non-state actors in J&K since the late 1980s.
Justice Kaul acknowledged that recommending the TRC was beyond the realm of the court, hence he brought it up in the epilogue. "I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass the responsibility of both state and non-state actors with respect to human rights violations. 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," he reasoned.
The judge said J&K’s residents suffered heavily when insurgency was at its peak, adding during his travels he observed the consequences of intergenerational trauma on an already fractured society. Truth-telling, he said, would provide an opportunity for the victims to narrate their stories. And acknowledgement by the perpetrators would pave the way for reconciliation.
While he said the wounds need healing, there is apprehension in J&K that the proceeding before the TRC could also end up aggravating the situation and result in opening a Pandora's box. It could also set off demands for similar commissions in, say, Punjab, the Northeast and Naxal-hit areas, say analysts.
Quantifying the forced migration
So, how many people were affected by the insurgency? Government records show that at least 45,000 people, including militants, civilians and security personnel, were slain in J&K ever since the outbreak of militancy in 1989. The Union Home Ministry's data claims that 64,827 families of Kashmiri Pandits, Sikhs and Muslims migrated out of Kashmir to Jammu, Delhi and elsewhere after militancy erupted.
As per the records of the Relief and Migrant Commissioner in J&K, there are 43,618 registered Kashmiri migrant families in Jammu as of now. Besides, 19,338 families are settled in Delhi and the National Capital Region while 1,995 other families live elsewhere in the country. Civil society and human rights groups allege that 8,000-10,000 youth disappeared from Kashmir after the outbreak of militancy and their fate is still unknown.
What lit the militancy spark
Two bomb blasts in Srinagar on July 31, 1988, are widely seen as the starting point of insurgency in the Valley though there was simmering tension since the beginning of the decade. Triggered by the Jammu and Kashmir Liberation Front (JKLF), the blasts coincided with the withdrawal of Soviet forces from Afghanistan. The explosions also came at a time when there was popular discontent against the ruling Congress-National Conference alliance as there were widespread allegations of assembly poll rigging in 1987.
A year later on December 8, Dr Rubaiya Sayeed, daughter of the then Union home minister Mufti Mohammad Sayeed, was kidnapped by terrorists for ransom - the release of five JKLF detenues. The government succumbed and released five incarcerated militants in exchange for her freedom. It was a game-changer moment for militancy in Srinagar which was controlled by Pakistan's deep state. Terrorism hit the stratosphere. A parallel political muddle made the Valley fully fertile for insurgency. Horrific mass murder of Kashmiri Pandits by terrorists followed, resulting in their exodus.
Back to the TRC, Justice Kaul said, it "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.” However, given its sensitivities, he left it to the government to devise the manner in which the TRC should be set up and determine the best way forward.
TRC not a new idea
The demand for setting up a TRC is not new. "In the past, calls for setting up a truth and reconciliation commission have also been echoed by different sections of the Valley," says Justice Kaul. For example, National Conference leader Omar Abdullah made TRC part of his party's election manifesto in the 2008 Assembly polls. Omar wanted it to be on the lines of the one set up in South Africa’s post-apartheid era. After wresting power and becoming the chief minister in 2009, Omar told the legislative assembly in March 2011 that the time for the TRC had arrived. He also flagged the idea at a National Integration Council meeting in Delhi the same year.
Omar wanted the TRC to have a big Indo-Pak sweep. He suggested that the panel be set up on both sides of the Line of Control as a confidence-building measure so that all aspects of militancy like its origin, impact on people, issues of disappearance and migration are fully probed and addressed for reconciliation and healing. He suggested that the panel be headed by an impartial individual who does not have anything to do with J&K's politics.
"The panel would be the only way a son will get answers as to how and why his father disappeared. A Kashmiri Pandit will know why he was forced out of the Valley, and families of the slain workers of the National Conference, Congress, PDP and BJP will get answers as to who targeted them," Omar reasoned. Yet, he failed to build consensus among all stakeholders to constitute the TRC. National Conference spokesman and Omar’s close aide Tanvir Sadiq told this newspaper that his party endorses Justice Kaul's view.
In contrast, the PDP was traditionally opposed to it, arguing as it did that cut-paste solutions from South Africa would not work in J&K. It instead demanded a justice and reconciliation panel.
Pandora's box
Sanjay Tickoo, president of the influential Kashmiri Pandit Sangarsh Samiti (KPSS) said the TRC is the need of the hour. People across the religious spectrum want justice. Justice Kaul put the ball in the Centre’s court without specifying any timeframe for forming the TRC, he said, adding political parties, civil society groups and NGOs should pressure the Union home ministry to set it up as soon as possible.
He, however, was apprehensive that the TRC could end up opening a Pandora's box. “They are not going to punish the security forces. Most of the personnel have anyway retired and some even passed away. The TRC could end up opening the wounds and validating allegations of human rights abuses. Though I want the TRC formed, I think it is unlikely in the present situation,” he said.
A political analyst said TRCs have proven to be very effective in creating favourable conditions for reconciliation between erstwhile warring parties. “True reconciliation will help in moral empowerment. It will also hasten conflict resolution and end the bitterness among the communities and parties here,” he said.
Ghulam Hassan Mir, former minister and senior vice president of the J&K Apni Party, welcomed the TRC idea. “Fact-finding is very important. How militancy erupted in Kashmir must be probed. If the TRC is set up and it does its job fairly, it will help in presenting history in the right perspective,” he said.
However, retired Supreme Court judge Markandey Katju believes that the Kashmiri Pandits, who were hounded out of Kashmir, will never forget or forgive, and there is no question of their returning to Kashmir. "As regards Kashmiri Muslims, how can they forget and forgive the killing of thousands of their kith and kin (many totally innocent) by security forces?" he said.
"Therefore, with great respect to Justice Kaul, whom I hold in very high regard, his proposal is unfeasible and unrealistic," Katju added.
Senior J&K Congress leader Ghulam Nabi Monga said the TRC should have been set up a long time ago. "If it is formed, we will welcome it. Investigations should not be confined to a particular community but held across the board."
As for the BJP, it welcomed the proposal. "All systems had failed in J&K after the eruption of militancy in 1989. Now that peace has been restored, it is a good step to find out what had happened. Let the truth come out. It will be a confidence-building measure," said BJP chief spokesman Sunil Sethi.
Note of caution
"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," Justice Kaul said. 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, he added, so as to facilitate a reparative approach. “Whatever has been, has been but the future is ours to see," he signed off.
370 verdict: Jhatka or halal?
Sovereignty question
The majority judgment said J&K did not retain any element of sovereignty after the execution of the instrument of accession and the issuance of the proclamation dated 25 November 1949 by which the Constitution of India was adopted. J&K does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other states in the country. Article 370 was a feature of asymmetric federalism and not sovereignty. However, Justice Kaul said it did retain a bit of sovereignty
Parliament’s powers under Art 356
The power of Parliament under Article 356(1)(b) to exercise the powers of the legislature of the state cannot be restricted to law-making power thereby excluding the non-law-making power of the legislature. Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article
370 temporary
The historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution of India shows that it is a temporary provision
Scope of Article 370(3)
The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of J&K. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to Article 370(3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3)
Workaround to annul 370 void
Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to J&K. Paragraph 2 of Constitution Order 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify the Article. An interpretation clause cannot be used to bypass the procedure laid down for amendment
Bhasmasura clause in 370(3)
The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, Constitution Order 273 is valid
Statehood, polls
The Solicitor General stated that J&K’s statehood will be restored soon (except for the carving out of the Union Territory of Ladakh). So, no need to determine whether the reorganisation of J&K into two Union Territories of Ladakh and J&K is permissible under Article 3. However, carving out Ladakh UT is legitimate in view of Article 3(a) read with Explanation I. The bench directed the Election Commission of India to conduct elections to the J&K Assembly by 30 September 2024. Restoration of statehood shall take place at the earliest.