Justice Kaul calls for TRC in Kashmir, but look at the fate of those whose work can enable it

In the 'Epilogue' of his judgment In Re Article 370, Justice Kaul, a Kashmiri Pandit himself, batted for truth and reconciliation in the war-torn region. Here the authors show the treatment that has been meted out to 'truth-tellers' of Kashmir.

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ALMOST five years after the reading down of Article 370 of the Indian Constitution, a five-judge Bench of the Supreme Court of India declared the action constitutionally valid on December 11, 2023.

Much has been (and will be) said about the unanimous decision of the Supreme Court Bench in the context of legality, federalism, constitutionalism and democracy. However, we were drawn by Justice Sanjay Kishan Kaul's 'Epilogue' in the judgment.

Justice Kaul, a Kashmiri Pandit who hails from Srinagar, sought to address the "human" question in this highly contested 'legal' battle. He draws us to, "We, the people" in the Preamble to the Indian Constitution in this debate on the constitutional status of the limited autonomy (arguably limited sovereignty) of J&K.

Acknowledging the 'intergenerational trauma' of the "already fractured society", Justice Kaul foregrounds that "the wounds need healing".

Referring to transitional justice as a facet of transformative constitutionalism, he recommends setting up a 'Truth and Reconciliation Commission' (TRC) "to 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".

Truth-telling, he reminds us, paves the way for reconciliation.

The idea of a TRC in Jammu and Kashmir, according to Justice Kaul, "forms the basis of achieving a shared national identity".

One could unpack this idea of shared national identity to understand whether it is the national identity of Kashmiris in and by themselves, the national identity of Kashmiris as seen in the context of India (in the form of Kashmiriyat) or the national identity of India.

Also read: In Re Article 370 judgment: Supreme Court ratifies one vidhan, pradhan and nishan

However, since this is coming from a judge of the Supreme Court of India, who happens to be a Kashmiri, it has to be another effort towards Option 3, i.e., assimilation of Kashmir with India.

A debate over the politics of these claims and propositions needs attention separately. Here, we focus on questions of truth-telling and documenting human rights violations in Jammu and Kashmir.

In doing so, it would be remiss of us not to engage with what is being done to those who have been tirelessly working on this very process of 'truth-telling' in Jammu and Kashmir: in particular the Jammu and Kashmir Coalition of Civil Society (JKCCS), a prominent human rights organisation.

Its members have been subjected to the wrath of the law, with two of them, Khurram Parvez and Irfan Mehraj, under detention for about two years and one year respectively.

How, then, do we speak of truth and reconciliation in Kashmir when the operational law criminalises and incarcerates those who have dedicated their lives to this endeavour?

Truth-seeking and human rights documentation

Truth-telling, states Justice Kaul, provides an opportunity for victims to narrate their stories and facilitates an acknowledgment from perpetrators and society as a whole.

Truth-seeking, as we know, includes information that allows for identifying and analysing patterns of violence and human rights abuse. It aids in creating historical records that are concrete and difficult to discard as unsubstantiated.

For more than three decades, Jammu and Kashmir has been in the throes of an insurgency seeking freedom from Indian rule and a brutal, violent counter-insurgency by the Indian State, seeking to maintain its control over the territory, whatever the cost.

Also read: How many Kashmiri civilian lives are equal to an 'official secret'?

The cost has been paid mostly by Kashmiri civilians as well as insurgent combatants who are caught or surrender during military operations by Indian State forces in the form of myriad cases of human rights abuse, including killings, torture, fake encounters, arbitrary detentions, rapes, disappearances and unlawful prosecutions.

The violence by the State forces goes unaccounted for as the laws (e.g., the Armed Forces Special Powers Act, 1990 and the Public Safety Act) provide impunity to the perpetrators.

Fraught with violence, the voices of Kashmir, at the very least, warrant documentation.

Historically, civil society-based truth-seeking processes have their relevance, particularly when the State is the alleged perpetrator of gross violations and cannot be trusted with bringing out the voices of victims.

Scholar David Androff suggests that civil society truth-seeking processes may also enjoy a different legitimacy. They work to satisfy victims and communities as they hold moral legitimacy, which the State may not.

Transitional justice scholars have thus increasingly sought an understanding of local, civil society-based truth-seeking processes that operate independently of the State.

Scholar James L. Gibson notes, "Truth-seeking processes, especially when sponsored by the State, are often influenced by political agendas such as political legitimisation or nation-building."

The conflict in India-administered Kashmir fits precisely in this category. Since the alleged perpetrator of violence on civilians is predominantly the armed forces of the State, a State-led truth-seeking mission can hardly be expected to bring out the truth of abuses.

The formation and functioning of the TRC in Kashmir, as suggested by Justice Kaul, remains to be determined. Who will constitute the TRC? Who will be identified as 'victims' of the conflict? How conducive would it be for the victims to give testimonies without fear? Would the State ever hold itself accountable?

Also read: Article 370 verdict: A missed opportunity to rein in an unrestrained exercise of power

These critical questions will have to be answered if and when such a process occurs. However, the effort of truth-seeking and documenting for historical records and accountability has already been made in Jammu and Kashmir. One institution that has been instrumental in documenting the human rights abuses by State and non-State actors in Kashmir is the JKCCS.

JKCCS: Documenting Violence in Jammu and Kashmir

The JKCCS, founded in 2000, describes itself as "an amalgam of various non-funded, non-profit, campaign, research and advocacy organisations based in Srinagar, Jammu and Kashmir".

Through its constituents, "The JKCCS seeks to speak truth to power whether through reports, programmes, systematic documentation, litigation or other engagements in Jammu and Kashmir and outside."

The JKCCS emerged as a response from the civil society of Kashmir to document the human rights abuses around a time when counter-insurgency had completed a decade and caused the killing of thousands of people, mass torture and enforced disappearances— crimes that have been enlisted as war crimes and crimes against humanity under international law and warrant documentation.

The JKCCS has focused on comprehensively documenting human rights abuses and social issues in Jammu and Kashmir. Their detailed reports and surveys have exposed the unfairness of parliamentary elections, assessed casualties in conflict zones and brought attention to the struggles faced by 'half-widows'.

Their focus extends to analysing systemic violence, including enforced disappearances, deaths, unmarked graves, and instances of torture and sexual violence.

Beyond documenting human rights abuses, the JKCCS has also investigated environmental concerns and natural disasters. For example, following the devastating Kashmir Flood of 2014, their report Occupational Hazard examines the link between extensive militarisation and environmental degradation leading to 'natural disasters'.

Also read: An ominous couple of weeks for advocates and advocacy in India

The report highlighted how the military presence exacerbated flooding, resulting in unprecedented damage to infrastructure in the Kashmir valley and the loss of about 277 lives.

These reports rely on diverse sources such as first-hand testimonies, collective accounts, door-to-door surveys, archival research, news articles, right-to-information (RTI) applications, first information reports (FIRs) and State records.

One of the notable works of the JKCCS is the report titled Structures of Violence, which analyses the role of the Indian State's systematic violence in Jammu and Kashmir.

This comprehensive report, utilising victim testimonials, newspaper reports and FIR copies, highlighted various atrocities, including the disappearance of over 8,000 individuals, more than 70,000 deaths, more than 6,000 unknown and unmarked graves, and numerous cases of torture and sexual violence.

It not only documents the abuse but also asks a pertinent question: Who do we hold responsible for the individual and collective acts of violence in Jammu and Kashmir?

A question intrinsic to any 'truth-seeking and conciliation' process.

International bodies have widely recognised the work of the JKCCS as critical in holding the perpetrators accountable and amplifying the voices of the victims. Speaking of the crackdown on human rights defenders in Kashmir recently, United Nations Special Rapporteur (UNSR) Mary Lawlor notes, "The Jammu and Kashmir Coalition of Civil Society (JKCCS) carries out essential work monitoring human rights. Their research and analysis of human rights violations are of huge value, including to international organisations seeking to ensure accountability and non-repetition of abuses."

Irfan Mehraj: Documenting truths as a human rights defender and journalist

On March 20, 2023, the National Investigation Agency (NIA) arrested Irfan Mehraj, a human rights defender and journalist, under 'terror' charges from Srinagar, his hometown. But what is Irfan's body of work?

Also read: Is appearing in a court of law against state interest? It might be if you are a Kashmiri, as petitioner-in-person Zahoor Ahmad Bhat found out

Born in Srinagar, Irfan started his career as a journalist with Kashmir Life, a weekly magazine, where he wrote film reviews besides reporting on politics.

Fresh from the university in 2015, he joined Kashmir Reader, a daily English newspaper based in Srinagar, and reported on politics, human rights and the environment.

He has also worked on stories for many Indian and international news portals, such as Contributoria, Deutsche Welle, and two circles.net.

He founded the Wande Magazine, a long-form political and cultural online journal. He also worked as a sub-editor at Rising Kashmir.

At the time of his arrest, Irfan Mehraj was associated with the JKCCS. Irfan Mehraj joined the JKCCS in 2017. At the JKCCS, he worked as a researcher and editor.

Two of the notable reports he worked on are related to the impact of violence on children and the use of torture in the valley. The 2018 report, Terrorised–Impact of Violence on the Children of Jammu and Kashmir, extensively explored how violence affects children amid the ongoing conflict.

Through qualitative and quantitative analysis, it documents instances of State forces' violence against children, including sexual violence against girls. The report reveals over 300 child casualties between 2003 and 2018.

It also highlights the dangers posed by landmines in the region and scrutinises the controversial use of the PSA against children post-2010.

In 2010, there was a third consecutive summer uprising in Kashmir, this time triggered by the Machil fake encounter and the killing of the 17-year-old Tufail Ahmad Mattoo.

Backed by detailed data from testimonials and police reports, the report emphasised the systemic nature of arrests under the PSA, referred to by Amnesty International as a "lawless law".

Also read: How Maulana Hasrat Mohani summed up the first ten days of hearings In Re Article 370

Overall, its goal was to reveal the severity of crimes against children in Jammu and Kashmir, analysing data on killings, arrests, sexual violence and the detrimental impact of violence on their education.

The second report he worked on as an editor was on torture, a practice that continues in Jammu and Kashmir, as is evidenced by the recent allegations against the Indian army for torturing three people to death in Poonch district's Topa Peer village on 23 December.

The 2019 report, Torture: Indian State's Instrument of Control in Indian administered Jammu and Kashmir, delves into the systematic patterns of torture in Jammu and Kashmir, dating back to 1947.

Referencing the UN Istanbul Protocol (2004), the report outlines a spectrum of torturous methods causing physical and psychological anguish. These methods include blunt trauma, positional torture, burns, electric shocks, sexual violence, humiliation, threats and behavioural coercion, among others.

The report aimed to amplify victims' voices, seeking accountability and justice, substantiating claims that these torture methods were predominantly practised in Jammu and Kashmir.

Irfan Mehraj, as an independent journalist and as a researcher with JKCCS, was dedicated to uncovering the stories of the people of Kashmir, a pursuit Justice Kaul could characterise as the 'telling of the truth'.

What is the fate of these 'truth-tellers' of Jammu and Kashmir, though?

Criminalisation of human rights documentation

The UAPA, a counter-terrorism law in India, has been criticised for being used to suppress dissent and target activists and journalists. The law was created to prevent activities that threatened India's national integrity and was subsequently expanded to cover terrorist activities.

Over time, multiple amendments have been made to the Act, with the most recent amendment granting the government the power to classify 'individuals' as 'terrorists'.

Also read: NIA court takes cognisance in alleged terror-funding case against human rights defender Irfan Mehraj

The Act also works contrary to the fundamental principle of presumed innocence until proven guilty. The law makes getting bail an exception instead of a right and imposes severe penalties, including life imprisonment or the death penalty, highlighting the gravity of its implications. However, the most concerning threat of the law lies in its equivocacy.

"Law defines the offence, the State defines the offender," said Indian civil liberties lawyer K.G. Kannabiran. This articulation is pertinent in understanding the structure of this legal framework that operates as a tool for the State.

The UAPA operates in vagueness and ambiguity in defining terms such as 'terrorist act', 'unlawful activity', 'advocacy' and 'conspiracy', and phrases such as 'likely to threaten' or 'likely to strike terror'.

This endows the executive with disproportionate and excessive powers through a broad interpretation of these terms. The ambiguity is deliberate as it allows interpretation of actions or speech that might not inherently pose a threat to fall within the purview of the law.

Thus, when the State views human rights documentation and reporting as acts of political dissent, it gets to criminalise the same as terror activities under the anti-terror law.

Arrests of Irfan Mehraj and Khurram Parvez under FIR RC-37/2020/NIA/DLI exemplify the use of anti-terror laws in targeting journalists and human rights defenders in an attempt to silence and intimidate anyone speaking out about the legal and political situation in Kashmir.

State agencies have systematically turned human rights work into terror activity. In March 2023, an NIA spokesperson stated that JKCCS was funding terror activities "under the garb of protection of human rights".

The 2020 FIR further criminalises human rights documentation work by saying that "these NGOs, trusts and societies and their members, by words and written means, publish anti-national and incriminating material to bring into hatred, contempt and disaffection towards the government of India".

Also read: Two years on, human rights defender Khurram Parvez waiting for his human rights to be defended

Such branding of the work of human rights activists and organisations as terror activity, through legal manoeuvres, criminalises and silences the said individuals or organisations as well as anyone associated with them. It terrorises and instils fear in those wanting to speak truth to power.

Paradox of justice

Justice Kaul's recommendation for a TRC in Kashmir as a path towards healing is a legal or political requirement in the conflict zone and a human imperative.

The call for truth-telling is essential in a region engulfed in structured violence. However, this pursuit of truth is confronted with a worrying reality. The very people committed to unravelling the narratives of the victims of violence find themselves targeted, arrested and silenced under the garb of counter-terrorism laws.

Arrests of Irfan Mehraj and Khurram Parvez and attempts at delegitimisation of the work of the JKCCS show how anti-terror laws such as the UAPA are potent tools for criminalising work towards justice.

Herein likes the paradox of justice— the quest for 'truth' and the suppression of voices that highlight the truth. While Justice Kaul's vision embraces reconciliation through acknowledging past wrongs, the Indian State's legal system allows the criminalisation of those who strive to document these very wrongs. The pursuit of justice is met with persecution.

Jammu and Kashmir's quest for truth, justice and reconciliation warrants a commitment to protecting its human rights defenders. To work towards a future of 'accountability and healing' requires us to question these harassment tactics of the State.

Thus, till the truth-tellers are protected, the quest for justice remains trapped in a cycle of oppression and silence, denying the very reconciliation Justice Kaul's Epilogue seeks to achieve.