‘Trauma needs healing,’ says Justice S.K. Kaul in Article 370 verdict

He noted that in the latter part of the 1980s, there was a troubled situation at ground level in the Kashmir Valley that culminated in the migration of one part of the population of the state.

New Delhi: As the Supreme Court pronouncing the verdict on a batch of pleas challenging abrogation of the Constitution’s Article 370, apex court judge Justice S.K. Kaul, in his separate but concurring opinion, said on Monday, December 11, that the wounds of Kashmiri Pandits’ inter-generational trauma need healing.

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Justice Kaul said that an Impartial Truth and Reconciliation Commission should be set up to investigate and report on the violations of human rights both by state and non-state actors perpetrated in Jammu and Kashmir, at least since the 1980s, and recommend measures for reconciliation.

He noted that in the latter part of the 1980s, there was a troubled situation at ground level in the Kashmir Valley that culminated in the migration of one part of the population of the state.

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“It is something that our country has had to live with and without any redressal for the people who had to leave their home and hearth. It was not a voluntary migration,” Justice Kaul said in the epilogue.

In his verdict, he noted that there was a mass exodus of the Kashmiri Pandit community after their lives and property were threatened changing the very cultural ethos of Kashmir, adding that there has been little turn-back despite three decades on this issue.

He said that he cannot help but feel anguish for what people in the region have experienced.

“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. It is worth noting that even the partition of India in 1947 did not impair Jammu and 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!” Justice Kaul said.

He said that this Truth and Reconciliation Commission should be set up expediently, before memory escapes, and the exercise should be time-bound, adding 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 it.

He cautioned 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 uninhibitedly.

It should be based on dialogue, allowing for different viewpoints and inputs from all sides, he said.

“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,” Justice Kaul emphasized.

He said that our Constitution is designed to ensure that courts offer justice in situations where fundamental rights have been violated, and in doing justice, courts have been sensitive to social demands and have offered flexible remedies.

“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 concluded.

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