What does Justice SK Kaul’s separate ‘sentimental’ ruling on Article 370 means?

In a separate but concurrent ruling during the hearing assessing the validity of abrogation of Article 370, Justice Sanjay Kishan Kaul called for an impartial investigation into human rights abuses in Jammu and Kashmir since the 1980s, carried out by both state and non-state actors. He recommended setting up a “Truth and Reconciliation Commission” to look into the matter. 

“I recommend the setting up of an impartial Truth and Reconciliation committee to investigate and report on the violations of human rights both by the state and non-state actors at least since the 1980s and recommend measures for reconciliation,” Justice Kaul said.

Justice Kaul, who hails from a Kashmiri Pandit family from the valley, said that “maybe some sentiments are involved” while reading the ruling. He added that an entire generation of youth had grown with a feeling of distrust and that the findings of the committee were owed to them. 

The Kashmiri Pandits, the natives of the state were forced out in a mass exodus due to the rise in Islamic terrorism in the late 80s. One of the primary motives of abrogation of Article 370 was to allow the Kashmiri Pandits to return to their roots apart from assimilating the state into the mainstream.  

Without referring to Islamic extremists, Justice Kaul said the second round of insurgency holds origins in the later parts of the 1980s. Failing to address the troubled situations at the ground level culminated with the migration of a major part of the state population. 

“It is a bit sentimental as well — insurgencies led to the migration of one part of the population and the situation was such that army had to be called and nation faced dangers. People of the state has paid a heavy price and intergenerational trauma the people have gone through, the state needs healing,” Justice Kaul said in the epilogue of the ruling. 

He added the situation became so aggravated that the very sovereignty and integrity of the country was in danger and the army had to be called in.

“Army is meant to fight battles with enemies of the State and not really to control the law and order situation within the State. But then, these were peculiar times. The entry of the Army created its own ground realities and in their endeavour to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price,” Justice Kaul said.

Army’s deployment in the state came with its fair share of controversies and the truth committee is expected to find instances when the power was misused. On the whole, Justice Kaul’s recommendation is expected to be the fitting epilogue to the troubled history of Jammu & Kashmir, one that will perhaps mend the relationship amongst the communities as well as with the State, legal experts said. 

In a historic judgment, the Indian Supreme Court on Monday (Dec 11) approved the Union government’s 2019 decision to abrogate Article 370, which stripped the erstwhile state of Jammu and Kashmir of its special status. 

A five-judge Constitution bench, presided by Chief Justice of India (CJI) DY Chandrachud, Justices SK Kaul, Sanjeev Khanna, B R Gavai and Surya Kant delivered the verdict. 

(With inputs from agencies)