Justice Kaul proposes a 'truth and reconciliation commission' for Jammu and Kashmir

While holding the abrogation of Article 370 as constitutionally valid, Justice Sanjay Kishan Kaul of the Supreme Court of India recommended that a 'truth and reconciliation commission' be set up to record the human rights abuses in Jammu and Kashmir "at least since the early 1980s".

Now, the final call on whether to set up this commission lies with the government. What Justice Kaul recommended is along the lines of a similar exercise in South Africa in the 1990s.

The mandate of the commission in South Africa was "to investigate gross human rights violations that were perpetrated during the period of the Apartheid regime from 1960 to 1994, including abductions, killings, torture. Its mandate covered both violation by both the state and the liberation movements and allowed the commission to hold special hearings focused on specific sectors, institutions, and individuals," according to the US Institute of Peace.

Similar commissions have been set up in the past in Germany, Rwanda, Chile, and South Korea, to name a few.

While Jammu and Kashmir has a longer history of communal strife and human rights abuses, both by the state and non-state actors, Justice Kaul's emphasis on focusing on the sequence of events since the 1980s holds significance.

In the early 1990s, thousands of Kashmiri Hindus had to flee from the valley as the  continuing communal tensions escalated in the valley where Muslims are in majority.

"“People who were compelled to migrate should be able to come back with dignity," Justice Kaul emphasised while reading out his verdict.

Similarly, even the Indian state has been accused of crossing the line on human rights in response to violence by the Muslim separatists in the state.

"According to national and international human rights organizations, cordon and search operations enable a range of human rights violations, including physical intimidation and assault, invasion of privacy, arbitrary and unlawful detention, collective punishment and destruction of private property," a United Nations report in 2019 noted.

The concerns over violation of human rights in Kashmir remain even after Article 370, which gave the state of Jammu and Kashmir a special status, was repealed in August 2019.

Source: The response from Ministry of Home Affairs in Rajya Sabha on August 9, 2023.

"The authorities have invoked the Jammu and Kashmir Public Safety Act, as well as terrorism allegations, to conduct raids and arbitrarily detain journalists, activists, and political leaders without evidence and meaningful judicial review. The authorities have also barred several prominent Kashmiris from traveling abroad without providing reasons," Human Rights Watch recorded in August last year.

The hearings in South Africa were open to public and, while it isn't allowed under international law, the commission allowed for amnesty for the guilty in certain cases.

Justice Kaul suggested similar features for the truth and reconciliation commission in Jammu and Kashmir. He wants the hearings to be televised. They should be held in such a way that the victims feel comfortable sharing their traumatic experiences.

Despite many criticisms, the truth and reconciliation commission in South Africa, the most popular one, is considered to be a success in both holding the perpetrators of violence to account as well as in creating a conducive atmosphere for reconciliation among sparring communities within the country.