Three years after the forced migration of the miniscule minority community of Kashmir, Kashmiri Pandits – “the indegenous people of Kashmir”, the government of India got the Protection of Human Rights Act 1993 passed by the Parliament in late 1993. The Act of Parliament was followed by the establishment of the National Human Rights Commission (NHRC) in 1994 at New Delhi. NHRC, which this author once called "a product of the sacred Act of the temple of democracy, the Parliament of India", was the first ever such official institution in India which recognised All Human Rights for All.
It was a major milestone after the enactment of the Constitution of India in 1949, that the fundamental rights as enshrined in the constitution were strengthened by the concept and vision of International Human Rights regime, that mainly comprises, the Convention on Prevention and Punishment of Crime of Genocide, the Universal Declaration of Human Rights, two Covenants, that is International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). The NHRC was declared as having its jurisdiction over whole of India including the then state of Jammu and Kashmir.
Immediately after the establishment of the NHRC office at Sardar Patel Bhawan at Sansad Marg, the displaced Kashmiri Pandit community submitted a detailed memorandum to the Chairman of the NHRC, Justice Ranganath Mishra. It besides giving a detailed summary of the tragedy of “mass exodus”, demanded a suo motto enquiry into the “ethnic cleansing” of the community in the Kashmir valley and thereafter about the neglect of the community during the life of “exile” outside Kashmir.
A delegation of prominent Kashmiri Pandits with the supportive audience of hundreds of community members under the leadership of this author submitted the historic memorandum to the NHRC on 7th March 1994 at its office. A day-long sit-in-protest was also held at Jantar Mantar, New Delhi before marching in a procession towards the NHRC the same day.
During a long battle comprising incessant countless meetings, presentations, exhaustive report submissions, full Commission hearings, continuous and consistent communication and liaison with the NHRC, visits of Commission's officers to Jammu and camps of the displaced people, interacting with the government, administration and the media, NHRC's recommendations for improvement of living condition of the affected people and taking up the issue with the legal luminaries of the country, the NHRC decided to constitute the Commission's Court as per its provisions to hear the case ab initio in 1996.
I was given a full fledged opportunity to make a four-hour presentation on the subject before the full Commission headed by Justice M.N. Venkatachalliah, prior to the constitution of the Court. I was supported by a full dedicated team comprising B.L Kaul, Utpal Kaul, Sanjay Raina, Vijay Handu, S.K.Kaul, Sunil Shakdhar and D.N.Raina. The Commission got fully convinced and advised us to get represented in the Commission's Court through a competant lawyer in its first hearing.
Accordingly, a top senior criminal lawyer of the country, Adv. P.N.Lekhi was appointed by us as our representative assisted by Adv. Rajiv Shakdhar and Adv. Ravinder Pandita. All of them didn't cost us even a single penny as their professional fees of the case and they offered their services completely free of cost. Senior Adv. P.N.Lekhi, in consultation and concurrence with this author, the complainant, brought the core issue of “genocide” against the Kashmiri Pandit community, in his submissions, before the Commission's Court. Three years of rigorous and continous argumentation by Adv. P.N.Lekhi and the governments' Councel/s (Union of India and the J&K state Government), the NHRC pronounced its decision on the case on 11 June 1999. Thanks to Adv.Lekhi, the Commission also requested him to help the Court through his services as the Amicus Curiae for the Commission in the case. This author was asked to submit an affidavit certifying the authenticity of the voluminous documentation, papers, sketches, designs, photographs, graphics, official orders and other details, which I did in the competant court.
The Commission's Court with Justice M.N.Venkatachaliah in the chair flanked by Justice V.S.Malimath and Virendra Dayal as the members, pronounced its decision. It was almost after six years of the first memorandum submitted in 1994, that the NHRC delivered its final decision on the core issue of “genocide” of the Kashmiri Pandit community. The order unequivocally said that "the crimes committed against the Kashmiri Pandits are, by any yardstick, deserving of the strongest condemnation. And there can be no gainsaying the acute suffering and deprivation caused to the community"........"the Commission is constrained to observe that while acts akin to Genocide have occurred in respect of the Kashmiri Pandits and that, indeed, in the minds and utterances of some of the militants a 'genocide-type design' may exist....., the crimes against the Kashmiri Pandits, grave as they undoubtedly are...".
The Commission further said, "The community, though severely stricken with loss and grief, is to the immense relief of its well-wishers capable of recovery. Though it has lost some leading members of the community, it is not destroyed in 'substantial' part. It is deep in resilience and talent and those who have caused it injury have not succeeded in the 'destruction of the group as a viable entity". It added, "In view of the Commission, the day will therefore undoubtedly come, hopefully in the not too distant future, when the members of the community will return in safety and honour to the valley where they belong and to which they have contributed so greatly since the beginning of its recorded history".
The Commission was harsh on the governments and said, "Regrettably, there can be no doubt that the community has felt that it has not been given the understanding and relief that it deserved, and to which it is entitled. The Commission has empathy for this feeling, even while recognising the efforts made by government to assist........" The Commission nevertheless urges both the State and Union governments to enhance their efforts to provide the Pandits with the understanding and assistance that they require in these difficult days......The Commission understands the reasons in the prayer of the complainants that an enquiry be held into the causes and circumstances leading to the present suffering. The Commission would like to observe, in this connection, that it is always ready and willing to examine and take action upon complaints relating to specific matters, as and when they are brought before the Commossion".
The Commission also said that the convention on “genocide” has attained the status of jus cogens and therefore has peremptory status. And for these reasons, the prohibition of Genocide as expressed in the Geneva Convention applies to all members of the international community, not only to those who are parties to the Convention. The Commission also quoted the opinion of the Advisory Committee of the International Court of Justice of 2nd May 1951 on the reservations to the Genocide Convention, "the principles underlying the Convention are principles which are recognised by civilised nations as binding on States even without any conventional obligation.......the Genocide Convention was intended by the General Assembly and by the Contracting Parties to be definitely universal in scope".
The Convention was thus manifestly adopted for a humanising and civilizing purpose. The Commission's Court concluded its judgement by an important observation, "there is need for us jointly to build our defenses against genocide and the other heinous acts that go under the painful title "crimes against humanity". The fact of the matter is that the Kashmiri Pandits were indeed the victims of "crimes against humanity" and once the editorial of a leading national daily categorised them as the "Victims of State too".
It is important here to mention that all successive governments failed continuously and perpetually to take forward the message of NHRC to its logical conclusion till date. The Apex Court of India too failed to give the Commission's quasi-judicial Order of 1999 a judicial interpretation in its a number of opportunities over the last two decades. Though the failures are for everyone to complain about, yet there is a light of hope beyond the channel of darkness.
This author appeals to the Hon'ble Lt. Governor of Jammu and Kashmir to suo motto treat this write-up of mine as a humble request to establish a "Special Crimes Tribunal" to investigate the "crimes against humanity" committed in regard to the minorities of Jammu and Kashmir, including Hindus and Sikhs over the last 35 years in Jammu and Kashmir. This will go a long way to bring justice to the wailing, weeping and crying victims of genocide in J&K, who didn't get justice despite the existence of the Constitution, Judicial structure and the responsible and responsive governments at the centre and in the Union Territory of Jammu and Kashmir.
This article may be considered as a formal complaint of mine against the government of Jammu and Kashmir and also against the government of India, and the National Human Rights Commission may also be made a party as the negotiating adviser on the issue of the constituion of "Special Crimes Tribunal".