The Case For A Truth And Reconciliation Commission in Kashmir

NEW DELHI: Every time one thinks that life in Kashmir has returned to its normal course and hopes that no more innocent lives are lost, the hope gets mercilessly shattered with news of young boys dying in protests. Death is not new to Kashmir. Here seasons’ change, moods change, governments change but the only thing that remains constant is the loss of innocent life. Since the nineties, fake encounters, extra-judicial killings, internal displacements, disappearances etc have marred the struggle for a permanent solution of the conflict. Unfortunately, in focussing on the political aspects of the discourse, the concept of justice to the people, has taken a backseat.

The recent deaths of eight young civilians on the polling day once again underscores the need move beyond the sovereignty versus azaadi debate or even the embittered dynamics of the neighbourhood territorial dispute and mend fences closer home, before the embers of dissatisfaction spill over the streets again.The narrative should shift stance on justice dispensation, a crucial facet, which is often ignored by the political class and state institutions alike. Pursuing the idea of justice in the strife torn landscape of Kashmir is a particularly tricky proposition for several reasons. Yet this is precisely why, delivering justice is imperative to the reconciliation process and rebuilding strained relations in this protracted conflict.

Invoking transitional justice that is armed with both judicial and non-judicial remedies such as fact finding and truth-telling initiatives, criminal prosecutions, reparation processes, vetting and institutional reform can perhaps alleviate the long festering wounds of the Kashmiri people.

In terms of a concrete measure, a Truth and Reconciliation Commission can be established, by the central legislature aided by International jurists, as a sincere manifestation of its commitment towards addressing the massive human rights abuses that have plagued Kashmir over decades, with an eye on restoring the dignity of individuals.

CONSTITUTION OF THE TRC

Historically TRCs are instituted by the State/regime in power, post the conflict period. This has been cited as a reason to keep its formation in abeyance, given the ongoing armed conflict and widespread civil unrest in Kashmir. However, the open ended nature of the Commission’s mandate offers a window of opportunity, if the period to be probed pertains to the past, say the troubled nineties. So a specific mandate, with an inclusive term of reference, that cover actions by state as well as armed non state actors to investigate and document the truth behind the dark period in the Valley’s past, namely, the forced disappearances, the unmarked graves, the pandit exodus and the extra judicial killings in detention camps, may open the door for justice that has long eluded Kashmir.

Further an effective reparations policy is a must, as it comprises the most tangible efforts of atonement, bearing a direct impact on the victim’s welfare. Official public apologies, a specialised health care program for survivors, pension for victims and victims’ families, rehabilitation of the internally displaced persons as well as symbolic reparation via identification of the mass graves, memorialisation of victims, publicly listing names of the disappeared and the dead, disclosure of offenders’ names and vetting in official posts to avoid recidivism are important measures in redressing past abuses and regaining the lost trust.

Equally, holding public hearings to record testimonies of victims, witnesses and perpetrators to officially acknowledge the truth must not be underscored as it has unparalleled effects on the sufferers’, survivors’, their families’ and the community’s psyche by providing due recognition of wrongs, creating an authoritative record, according responsibility and lifting the veil of impunity that offender’s enjoy by naming and shaming.

For the government, it provides the opportunity to shoulder meaningful responsibility of addressing the judicial aspect of a political problem that has been long skirted. Effectively it can extinguish long standing fires of distrust and alienation, while disengaging from the larger political scenario that requires a consensus, which is hard to achieve at present. Further, it strikes the right balance between maintaining the State’s authority and public accountability, while circumventing the question of allowing third party involvement, which has been the subject of much debate, thereby avoiding all discordant notes. If successfully executed, it would amount to revitalising a moribund dialogue, significantly boosting the government’s credibility in the valley and would bring about a holistic closure for the masses while reiterating the state’s obligation towards fostering reconciliation with the people.

The role of the media is crucial in unearthing and dissemination of facts and walking the thin line to maintain a balanced and objective coverage without becoming polarised in its narrative. Significant media initiatives include documentaries on the report with the aim of contributing towards building a collective memory and educating the masses. For example, the report of the Argentine National Commission on the Disappeared (Nunca Mas meaning Never Again), is widely used for civic education and reprinted in various formats.

No doubt for its critics transitional justice with its emphasis on restorative rather than retributive justice, particularly in the context of systematic human rights abuses can seem like too little too late. However its benefits may outweigh its misgivings. Its flexibility allows for an efficacious justice delivery within the contours of the socio-political ground reality. Moreover, as an official agency, it lends the much needed stamp of legitimacy and state recognition needed to restore public faith in the rule of law and equality before law. It should therefore be viewed as an opportunity to leverage access to justice that has remained a mirage for the average Kashmiri, rather than an outright denial of justice.

It goes without saying that political will and genuine commitment is a prerequisite for the process. An onus on truth seeking instead of obliterating facts and figures, arming the commission with adequate teeth such as the power to hold someone guilty, limited exchange of amnesty for testimony, allowing statements to form the basis of criminal prosecutions where grave crimes have been committed and providing adequate resources such as legal support staff are critical to piece together a comprehensive, well documented history of past abuses and atrocities.

Finally, the report itself should be considered an important national document, its recommendations implemented in letter and spirit, with the long term aim of reconciling a divisive society with a deeply troubled past. This includes inter alia reforms of state institutions and policies by reviewing acts like AFSPA that bestow sweeping powers and have the tendency to turn into draconian laws if left unfettered, if proposed by the Commission.

Azaadi can mean several things to several people – for those who’ve suffered and seen wrong without justice being meted out, it could well mean having access to justice, even if restorative.