Truth And Reconciliation Commission

Prof Gopi Kishen Muju 

There are reports that the political parties in the Valley and others who challenged the abrogation of article 370, but was upheld by the Supreme Court, are planning to go for a revision as some legal options have been expressed “with due respects to the Honourable Supreme Court” that the “judgement was erroneous “and “bad in law” (See Karan Thapar's interviews with some legal experts). Of course the judgement has disappointed the petitioners and others who did not favour the abrogation, especially the manner in which it was made in-operative and causing alienation in Valley creating a distance between the Valley and the Center. They term it as a breach of trust and agreement.

While delivering the judgment, Justice Sanjay Kishan Kaul recommended the constitution of a Truth and Reconciliation commission to heal the wounds and suffering of the victims of terrorism and insurgency that gripped the Kashmir Valley in 1989-90 and forced almost the entire minority Hindu (Kashmiri Pandit) population to leave the Valley, and cost thousands of civilian and security forces lives. While there appears no end to militancy, the displaced community is still denied and deprived of justice and rehabilitation. Setting up of a Truth and Reconciliation Commission has been one of the major demands of the displaced Kashmiri Pandits; and (subject to correction) if one remembers well the Chief Minister of the erstwhile J&K State had some time in 2011 or so said that he was in favour of such a Commission.

Justice Kaul said that setting of a Truth and Reconciliation Commission, may help to 'achieve collective understanding of the human rights' violations perpetrated by State and non-State actors, against people of the region'. Truth-telling provides an opportunity for victims to narrate their stories. Such an exercise can help and even facilitate an acknowledgement from those responsible for perpetrating the wrongs, and from society as a whole. If done sincerely, such measure can have a strong way for reconciliation. However, Justice Kaul has at the same time, cautioned that the commission, if constituted, should not turn into a criminal court. Justice Kaul also referred to the South African truth and reconciliation commission, which was set up to investigate rights violations during the apartheid regime. Most of such commissions have been constituted to study the pattern of human rights violations that took place either during an earlier regime or military dictatorship or arising out of insurgency or similar grave acts of violence

The main purpose of a Truth and Reconciliation commission is to fathom out the truth behind the atrocities and to facilitate the process of reconciliation in the societies that are divided during periods of violence where grave violations and abuses of human rights have taken place. Of course setting up of such Commissions should never be delayed for lapse of time may not help much later on. Such commissions should be set up immediately after the change of situation / regime or end of hostilities or insurgency, when it should be most useful in reconciliation and in rebuilding fractured societies.

It has been an international practice to set up such Commissions. Probably the first such commission is said to have been set up in 1974 in Uganda (Uganda 1: Commission of Inquiry into Disappearances of People of Uganda,1974) to investigate and report on hundreds of disappearances that occurred during the earlier regime. Truth commissions are known to have also been appointed by the United Nations (such as in Timor-Leste or East Timor) and a non-governmental organisation (NGO) such as the World Council of Churches, in Brazil or. The International Center for Transitional Justice (ICTJ), an NGO established in March 2001 Priscilla B. Hayner, in her book Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, has delineated the five main characteristics of truth commissions. First, they focus on the past, rather than on[1]going events. Second, a truth commission investigates a pattern of events that took place over a period of time. Third, it engages directly and broadly with the affected population, gathering information on their experiences. Fourth, a truth commission is a temporary body, with the aim of concluding with a final report. Fifth, a truth commission is officially authorised or empowered by the state.

It is now for the Government of India or the Parliament to set up such a Truth and Reconciliation Commission. One would like the Parliament or even the Supreme Court to set up such a Commission in light of the present context. Of course the very setting up of the Commission will give a bit of psychological relief and confidence among the victims of terrorism, notwithstanding the final relief that might be delivered. However, whenever such an exercise is undertaken for authentic, unbiased and reliable investigation of human rights violation in Kashmir, the parameters and terms of reference need to be defined carefully and clearly with a definite time line for submission of report / recommendations etc. Much will depend on the composition of the commission because it is the members who provide impartiality and objectivity to the pious work they are entrusted with. It is very important that the Commission must comprise of men and women of integrity, non-partisan attitude wherein prominent people from civil society can be involved as members, keeping in view the polarised political environment in the country and communal dimensions of K.P. Exodus in 1990 followed by flow of accusations and counter accusations across the political parties on the issue the Commission will have to face a tough job to demonstrate its neutrality and objective character.

The most important function of a truth and reconciliation commission is to hold public hearings, record patterns of rights violations and listen impartially and objectively to the statements as narrated by the victims as well as by the perpetrators. Necessary references have to be made to the publications, newspaper reporting and social media areas for collection of evidences. Unfortunately, while the majority of victims in Kashmir can still express their grief most of the perpetrators in Kashmir have been non-state actors from across the borders or those who have been killed or may not be available. Of course the locals can be granted amnesty in exchange for full disclosure, but there is a fear that such a provision could attract controversy Determining reparation for victims is one of the essential mandates of a truth and reconciliation commission, even if the perpetrators are not identified.

But as far as state actors are concerned, levelling accusations and charges against the Indian Army and other security forces who too have suffered extensive damages may not go down well with the government. As militancy is still alive in Kashmir presence of army and security forces is still required to normalise the situation. The central government has denied permission in the past to prosecute certain members of the defence forces for alleged offences and rights violations. (The Supreme Court of India, in General Officer Commanding (Army) vs CBI & Anr. (2012), held that the government's sanction is necessary if there is a 'reasonable nexus' between action and the lawful discharge of duties of the official.); though occasionally action has been taken upon public upheaval.

 

Therefore, while collective understanding of rights violations, perpetrated by state and non-state actors may be necessary — as observed by Justice Kaul — the mandate needs to be chosen carefully without having an adverse impact on the overall credibility of army and the security force and victims are not denied justice.

Kashmiri Pandits and the Commission

The involuntary and forced exodus of Kashmiri Pandits (with slogans like Kafiro bhago jihad aa raha hai which rented the air) that took place in 1989-90 due to insurgency is the one that awaits rightful redress. It is obvious that after a lapse of more than three decades many victims might not be alive to seek closure of their loss and violations. The truth and reconciliation commissions should have been set up long back to deliver justice but, however, if constituted even now without further delay, it might have still some utility, though limited.

Though very late, the victims of rights violations still reserve the right of reparation (as recognised by the UN) with regard to 1) restitution; 2) compensation; 3) rehabilitation; 4) satisfaction, and 5) guarantees of non-repetition. 1) Restitution includes taking all measures necessary to re-establishing the original situation before the rights violations happened. It includes return to one's place of residence and return of property. This, though a very difficult step is still the most crucial one for most displaced who are eager to return and need to be given a fair chance. Their agony need not be further aggravated. 2) Compensation for damages and regular financial relief may solve some problems of the poor section, though the neediest might not be alive to the situation to get due benefits.3) Rehabilitation could restore reputation and may include legal services if needed.4) The breach of trust may need a repair through public apology, commemoration, tribute to victims and so on. Civil society has to be involved in this process. 5) The guarantee of a non-repetition may include measures contributing to the prevention of further violations as well and setting up secured accommodations. Despite Jammu and Kashmir being a case of delayed reparation, some relief can still be given to the victims within each parameter given above to rebuild their lives.

Kashmiri Pandits have been the worst victims of the unresolved so-called Kashmir issue since the partition of the country in 1947 and failure of the State to protect the community. The community feels that the State has failed to stop forces responsible for its mass exodus. Living in Diaspora the community feels loss of its identity though all efforts are being made by it to preserve its culture and even language. Feeling greatly aggrieved, the community needs authoritative acknowledgement and closure for the violation of their rights. The chapter of Article 370 of the Constitution, which had practically nothing to do with the exodus of Kashmiri Pandits but were victims of Pakistan sponsored terrorism, might have been closed but, as claimed by the powers that be that 370 was a cause for generating separatist tendencies leading to militancy, the sufferers of insurgency must also get a rightful closure.

There may be limitations in the recommendations of Justice Kaul but having rightly aired the sufferings of the community to which he too belongs, his recommendations must not go unheard and a Truth and Reconciliation Commission should be set up before it gets too late. Lest it may amount to beating about the bush, the recommendations must be effective and practical wherein the victims feel justice is done otherwise it will be only handing over a lollipop just to be held in hand and watched. 

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Courtesy: Prof Gopi Kishen Muju and January, 2024, Naad