If India Wants to Pacify Kashmir, It Must First Deliver Justice

For those who’ve suffered without justice being meted out, azaadi could well mean having access to justice, even if restorative.

Every time one thinks that life in Kashmir has returned to normal and hopes that no more innocent lives will be lost, the illusion is mercilessly shattered with news of young boys dying in protests. Death is not new to Kashmir. Seasons’ change, moods change, governments change – but the only thing that remains constant is the loss of innocent life. Since the 1990s, fake encounters, extra-judicial killings, internal displacements and disappearances have marred the struggle for a permanent solution to the conflict. Unfortunately, in focussing on the political aspects of the discourse, the idea of justice for the people has taken a backseat.

The recent deaths of eight young civilians on April 9, the polling day for by-elections, once again underscores the need to move beyond the sovereignty vs azaadi debate, and the embittered dynamics of the territorial dispute. Emphasis should be laid on mending fences closer to home, before the embers of dissatisfaction spill onto the streets again. The narrative should shift to justice dispensation, a crucial facet that is often ignored by the political class and state institutions alike. Pursuing the idea of justice in a strife torn landscape 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 (TRC) 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 the decades.

Constitution of a TRC

Historically, TRCs are instituted by the state or regime in power post a conflict. 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 – for instance, if it were to look into the troubled 1990s. So a specific mandate – with an inclusive term of reference, that cover actions by state as well as those of 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 extrajudicial killings in detention camps, may open the door for justice in 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 healthcare program for survivors, pension for victims and victims’ families, and rehabilitation of internally displaced persons are some of the ways in which this can be done. Symbolic reparation via identification of 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 can also go a long way 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 an unparalleled effects on community psyche by providing due recognition of wrongs, creating an authoritative record, according responsibility and lifting the veil of impunity that offender’s enjoy.

What does the government get?

For the government, it provides the opportunity to shoulder meaningful responsibility by addressing the judicial aspect of a political problem that has been long skirted. Effectively, this 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. Importantly,  it would bring about a holistic closure for the masses while reiterating the state’s obligation towards fostering reconciliation with the people.

Media’s role

The role of the media is crucial in unearthing and disseminating facts, while maintaining a balanced narrative. Significant media initiatives help to build collective memory and educate the masses. For example, the report of the Argentine National Commission on the Disappearance of Persons  (Nunca Mas meaning Never Again), is widely used for civic education and reprinted in various formats.

No doubt, for critics of 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 effective delivery of justice within the contours of the socio-political ground reality. Moreover, as an official agency, it lends the much needed stamp of legitimacy 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 eluded Kashmir for so long.

It goes without saying that political will and genuine commitment is a prerequisite for the process. Instead of obliterating facts and figures, the onus should be towards finding the truth by arming the commission adequately so that it can hold people accountable. 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 a 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 the Armed Forces (Special Powers) Act, that bestow sweeping powers and turn draconian if left unfettered.

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.

Sheikh Athar is a Kashmiri freelance journalist,
Palvi Sing Ghonkrokta is a lawyer.