Kashmiri Pandits Exodus- Apex Court Proposes Truth And Reconciliation Commission, Expresses Hope That Those Compelled To Migrate Will Return To Valley With Dignity [Read Judgment]

The Supreme Court today unanimously upheld the abrogation of Article 370 of the Constitution of India which had bestowed special status on the erstwhile state of Jammu and Kashmir.

The five-judge Constitution bench, led by Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant held that Article 370, a temporary provision, was a feature of asymmetric federalism and not sovereignty. 

By a separate, concurring judgment, Justice Sanjay Kishan Kaul proposed the establishment of a "Truth and Reconciliation Commission." This commission, as per Justice Kaul's recommendation, would be tasked with conducting an in-depth inquiry into human rights violations committed by both State and non-state actors in the Kashmir valley, particularly focusing on incidents dating back to the 1980s.

Kaul ordered, "In the past, calls for setting up a truth and reconciliation commission have also been echoed by different sections of the Valley.  In view of the in-roads made globally, and endogenous requests for truth and reconciliation, I recommend the setting up of an impartial truth and reconciliation commission (“Commission”). The Commission will 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. This 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."

Continuing, he further stated, "At the same time, considering the significance of the matter and the sensitivities involved, it is my 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. I am alive to the challenge that recommending the setting up of a truth and reconciliation is beyond the realm of this Court. However, I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass responsibility of both state and non-state actors with respect to human-rights violations This includes the duty to take reasonable steps to carry out investigations of violations."

The Judge also stated, "As a word of caution, 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."

Concluding, Justice further in his epilogue stated, "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."

On the merits of the challenge to abrogation of Article 370, Justice Kaul held that the accession of Jammu and Kashmir followed a distinctive path, with the formation of a constituent assembly playing a pivotal role. Article 370, initially intended as a temporary provision, provided a mechanism for the state's assimilation into the Indian Union and the dissolution of the constituent assembly did not render Article 370 obsolete, as the President's power to issue a declaration remained intact, paving the way for constitutional modifications.

Justice Kaul held that "Article 370 was intended to be a temporary provision: As a corollary, there was a mechanism to bring the whole arrangement to an end. The effect of the power under Article 373, once exercised would be that the article shall cease to be operative. In other words, the mechanism was meant to de-recognise the State internal sovereignty. Thus, the exercise of power under Article 373, meant that for the purposes of the constitution of India, only the constitution of India would apply to the Jammu and Kashmir and not any other Constitution i.e., the constitution of Jammu and Kashmir."

He further stated that the purpose of the constituent assembly was to draft a constitution for the governance of the state and on the other hand, the purpose of Article 370 as noted above was to slowly bring Jammu and Kashmir on par with the States in India.

Cause Title:  In Re: Article 370 of the Constitution

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