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Truth and reconciliation in Kashmir

Burhan Majid points out why a truth and reconciliation commission is appropriate for Gujarat 10 years after the Godhra riots but makes absolutely no sense in Jammu & Kashmir

Kashmir conflict

Ever since the third-generation Abdullah became Kashmir's chief minister, he has been batting for the setting up of a Truth and Reconciliation Commission (TRC) which, he believes, would help ascertain the truth behind allegations of widespread atrocities by the government forces in Jammu & Kashmir. The setting up of the commission received more attention after the discovery of thousands of unmarked graves in the valley by the state's Human Rights Commission. The discovery is only a vindication of the assessment of several rights groups.

The Wikipedia defines a truth commission or truth and reconciliation commission as a commission tasked with discovering and revealing past wrongdoing by a government (or, depending on the circumstances, non-state actors also), in the hope of resolving a conflict left over from the past.

Over the years since the first of its kind in South Africa (1995), it has been seen that the establishing of such commissions is a post-conflict resolution phenomenon. The commission is relevant when there has been a civil war and the warring communities need to be reconciled. The South African TRC came into being after the policy of apartheid had been abolished in the country. The draconian laws that ruled the black community till then had been repealed, giving people reason to believe that positive steps were being taken.

In Kashmir, however, the situation is diametrically opposite. It is neither a post-war situation nor is this a conflict or a clash between different communities. It is the government forces that are engaged in the rights violations. Draconian laws like the Armed Forces Special Powers Act (AFSPA) continue to be in place and under it the perpetrators of the crimes enjoy impunity. The crime continues.

Two, a major theme of truth commissions has been the principle of 'forgive and forget'. But among its foundational theories is 'restorative justice', as opposed to 'retributive justice'. Offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologising, returning stolen money, or community service".

Does the chief minister of J&K mean the same thing? Or is this just a convenient way out for mainstream politicians who have failed to prosecute a single offender for the human rights violations down the line since 1990?

Three, truth and reconciliation commissions are essentially non-judicial bodies that try to establish what happened during a conflict or during a transition between an authoritarian form of government and a democratic one. Thus regarded, they do not have the power to punish perpetrators, and punitive measures are what the Kashmiris have been demanding for a long time now.

Courts are the appropriate place to punish offenders, not truth commissions. In Kashmir, the facts are as open, aren't they? Mass graves, forced disappearances, custodial killings, rape, torture, arson, mischief etc stand confirmed by many independent agencies, don't they? What more does the government need? The truth is out there, the only thing the rule of law demands is to bring the criminals to book.

On the other hand if we take the case of the 2002 communal carnage in Gujarat, reconciliation is called for. For the carnage, most often termed a genocide, involved two communities – Hindus and Muslims. The fact that the two communities have no choice but to live together strengthens the call for a truth and reconciliation commission to sort out the issues between them. However, given the established government complicity in the carnage, reconciliation must also be accompanied by retributive justice.

Thus there is a clear distinction between Kashmir and Gujarat. In 2002, after the death of 59 Hindus, burnt alive in two coaches of the Sabarmati Express which was bringing them back from Ayodhya, Gujarat saw violence that claimed approximately 2,000 Muslim lives besides huge loss of property.

While the South African TRC may be relied on as a model for reconciliation in Gujarat, the significant difference in the political context of Gujarat and South Africa must also be acknowledged. The latter involved an absolute regime change and a shift in the power bases whereas in the former the same political dispensation continues. Therefore, any truth and reconciliation initiative in Gujarat must be based on the assurance that such acts on the part of Hindu right-wing extremists are never allowed to happen again. At the same time Chief Minister Narendra Modi, the man behind the massacre, must be brought to book. For if Modi is not punished, Hindu hardliners might be emboldened to carry out such violence again.

In Kashmir, reconciliation cannot be seen as a viable alternative to justice. Appointing a truth commission in a state that continues to witness killings, torture and systematic oppression of citizens will only rub salt into the wounds.

If the government is serious about justice in Kashmir, it needs to get rid of draconian laws such as AFSPA immediately.

(Burhan Majid is an independent researcher and journalist based in Kashmir)

Infochange News & Features, February 2012