The five-judge bench comprising Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant during pronouncement of verdict on a batch of petitions challenging the abrogation of Article 370 of the Constitution, in New Delhi, Monday, Dec. 11, 2023.
Credit: VIDEO GRAB VIA SUPREME COURT OF INDIA YOUTUBE
New Delhi: Supreme Court judge Justice Sanjay Kishan Kaul on Monday recommended setting up of an impartial truth and reconciliation commission to 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 said considering the significance of the matter and the sensitivities involved, it is his view that it is for the government to devise the manner in which this should be set up, and to determine the best way forward for the commission.
Upholding the decision to dilute Article 370 of the Constitution on special status to J&K, Justice Kaul wrote, "In order to move forward, 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 has historically been based on – coexistence, tolerance and mutual respect."
He pointed out it is worth noting that even the partition of India in 1947 did not impair Jammu & Kashmir’s communal and social harmony.
"In this context, Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity!," he said.
Justice Kaul, who hailed from J&K, said, "During my travels home over the years, I have observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society."
"I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this Epilogue," he added.
Justice Kaul said the Commission 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," he suggested.
Taking a leaf out of South Africa’s book, he said the principles of “ubuntu”, or the art of humanity, and inclusiveness should be central to the process.
"This will facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity," he said.
As a word of caution, he suggested the Commission, once constituted, should not turn into a criminal court and must instead follow a humanised and personalised 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.
"Needless to say, the Commission is only one of the many avenues towards the goal of systemic reform. It is my sincere hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity. Whatever has been, has been but the future is ours to see," Justice Kaul said.