Justice SK Kaul recommends Truth and Reconciliation Commission for human rights violations in Jammu & Kashmir since 1980s

Justice Sanjay Kishan Kaul of the Supreme Court, in his judgment upholding the abrogation of Article 370 of the Constitution, has recommended the setting up of a Truth and Reconciliation Commission to address violations of human rights perpetrated in Jammu & Kashmir both by state and non-state actors since the 1980s..In a heartfelt epilogue penned after the judgment, Justice Kaul emphasized it is essential to take into account the social context and the historical burden of the region."The commission should be set up expeditiously before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with the feeling of distrust, and it is to them that we owe the greatest day of reparation," Justice Kaul added.He took the view that it is for the government to devise the manner in which the Commission should be set up and to determine the best way forward for it..He referred to one such commission set up by South Africa to investigate human rights violations perpetuated by the apartheid regime and further stated that in the past, calls for setting up such commissions were also echoed by different sections of the Kashmir Valley.In his epilogue, Justice Kaul referred to the 1947 invasion of the Valley that resulted in parts of J&K being occupied by other countries and the insurgency in the 1980s that led to migration of one part of the population of the State by 1990 and remarked that redressal had not been committed to the fullest extent."The situation became so aggravated that the very integrity and sovereignty were 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. The entry of the army created ground realities in their endeavor to preserve the integrity of the state and the nation against foreign incursions," Justice Kaul added..Justice Kaul further emphasized that the men, women and children of the region had suffered a lot, and that in order to move on, the wounds need healing."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's historically has been based - coexistence, tolerance and mutual respect," he said.The first step towards this restoration, according to Justice Kaul, is to achieve a collective understanding of the human rights violations perpetuated both by state and non-state actors against the people of this region."There have been numerous reports documenting these incidents over the years. Yet, what is lacking is a commonly accepted narrative of what has happened or, in other words, a collective telling of the truth," Justice Kaul emphasized.He added that truth-telling provides an opportunity for the victims to narrate their stories, and facilitates acknowledgment from those responsible for perpetuating the wrong and from the society as a whole, which paves way for reconciliation..Acknowledging the challenges of recommending the setting up of the Commission, he expressed his view that transitional justice and its constituents are facets of transformative constitutionalism. "Globally, has constitutionalism has evolved to encompass 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 investigation of violations," he added.As a word of caution, Justice Kaul warned that 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. It should be based on a dialogue allowing for different viewpoints and inputs from all sides, he added.He further said that to 'facilitate a reparative approach that enables forgiveness for the wounds of the past and forms the basis of achieving a shared national identity', inclusiveness should be central to the process.."Needless to say, the commission is one of the many avenues towards the goal of systematic reforms. It is my sincere hope that much would be achieved when Kashmir opens their hearts to embracing the past and facilitating the people who are compelled to migrate to come back with dignity. Whatever has been has been, but the future is ours to see," Justice Kaul concluded..Supreme Court Constitution Bench unanimously upholds abrogation of Article 370