Kashmiri Pandits, Minority, Status, Rights and Rehabilitation – A Case Study by Dr. K.N. Pandit, January 30, 2010:
Part I – This has to be partly a theoretical and partly empirical study
A conclusive definition of “Minority” as a component group of a given society has remained elusive. At the United Nations, the Commission for Human Rights (now called Council for Human Rights) has been grappling with precise definition. The reason is that situations develop in different parts of the world in which a particular group of population suddenly gets disempowered and dispossessed: or a group emerges seeking to establish its separate identity and individuality for one reason or the other. In more frequent examples the affected people could be political victims. It becomes difficult to define their category. Besides, there are many other circumstances that throw up an isolated segment of population whose identification becomes a moot point.
Generally speaking, numerical strength is taken a factor for determining a group as majority or minority. But if large groups are accepted as minorities and clubbed together, they might over-strip the majority group. In a multi-ethnic, multi-religious and multi-linguistic country like India, the minorities when clubbed together are likely to claim large political power, social recognition and economic priority. Would they still be called minorities and deprived segments? What if they jointly form a large segment so as to overshadow the otherwise majority group?
Preamble paragraph 6 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly vide resolution 47/135 of 18 December 1992 states:
Persons belonging to national or ethnic, religious and linguistic minorities are an integral part of the development of society as a whole and within a democratic framework based on the rule of law. It is necessary to maintain or build harmonious and respectful relations among a society’s various components.
This Declaration somehow suggests classification of minorities into four groups, national, ethnic, religious and linguistic.
But again there can be sub-division of these groups into majority and minority. Hindus in India are in a majority but Jains and Buddhists are in a minority. Sunnis are in a majority in Kashmir but Shias are in a minority. Likewise, within the Sunni fold, the Ahmadiya are a minority. In Pakistan they are not accepted as Muslims. What is their status then in terms of majority/minority classification?
In general terms, one may say that a section of civil society somehow discriminated against for a variety of reasons and disempowered through various machinations would be entitled to the minority category status while those enjoying power and influence fall into the category of majority.
It is universally recognized that minorities are generally deprived of many rights and become a victim of the politics of the “tyranny of majority.”
Realizing this fact, the original name of UN Human Rights Commission was Commission for Minorities. It is actually the minorities who are made to suffer disabilities and disempowerments in regard to their rights and privileges.
In a discussion on Minority issues the focus has to be around three core elements:
- Identification of challenges and problems facing minorities;
- Identification of good practices in relation to minorities and political participation; and
- Consideration of opportunities, initiatives and solutions.
The foremost requirement in addressing the minority issue is the identification of challenges and problems facing them. These could be in more than one way. Security to life and property is what the constitution provides very emphatically. The failure of a government to carry out this primary obligation disqualifies it from wielding power and authority.
Apart from this fundamental obligation, the governments are required to provide space to the minorities for development of their culture and traditions in a manner that satisfies them but without impinging upon the culture and traditions of other communities.
The second element of a dispassionate discussion of Minority issues is the good intentions and good practices on the part of the ruling apparatus in creating space for the minorities to enable them to enjoy their rights and privileges. It is not a matter of gratuitous generosity or obligation shown to the minorities (to call them amanat or custodial property); it is the constitutional and institutional duty of the ruling group to ensure implementation of the rights of minorities.
The vital issue is that of political participation of the minority. That is the channel, which ensures conceding them their constitutional rights and privileges. Who is to ensure a minority its political participation? This competence does not rest with any political party or its leadership whether in power or in opposition; it is the constitution that has to provide for the political participation of a minority. The rights and privileges of the people of Jammu and Kashmir had to be safeguarded through constitutional instrument called Article 370 of the Indian constitution. This is above political parties and groups that may or may not wield influence in running the affairs of the Indian state.
This basic approach to the question of political participation of minorities should be reflected not only in the constitution of J&K State but also in the affirmative action of the ruling apparatus from time to time. A Legislative Assembly cannot claim to be representing the civil society if it leaves a minority out of the parameters of legislative, judicial and administrative participation.
The third element is of opening opportunities and taking initiatives for the integration of minorities into the broad spectrum of national mainstream. Major responsibility rests on the shoulders of popular leadership. As opinion builders and path-breakers it is they who should have fertile brains to suggest opportunities and initiatives. Creation of an atmosphere of cordiality and peaceful coexistence among minority-majority groups with the objective of contributing to nation-building process is what should become a priority with national and regional leadership. Interaction with minority has to be on an even keel with the majority group because of commonality of objective.
Conviction and commitment should inspire popular leadership to guide the society in times of crisis. It cannot absolve itself of responsibility to society and conscience. The crisis of society is the crisis of leadership. Leadership obtains strength from the masses of people and a crisis overtaking the masses of people will first of all shake the foundation on which state political structure rests.
Within the frame of themes listed below, we need to consider current practices and ways to increase the effective participation of minorities in policy-and decision-making processes and institutions:
It is for recognized political parties to delineate their role that will ensure adequate representation of minorities in “mainstream” political process? The parties involved have to reach the minority communities if they mean to work for the society as a whole.
Unfortunately vote bank syndrome has taken Indian society into its grip. This is goes against the spirit of the constitution and established political philosophy of the Indian state. Religion, ethnic or language-based political parties are generally faced with many constraints in performing positive role in nation-building process. It is generally seen that political parties pandering to minorities on religious and other specific count either profile them as totally deprived and dispossessed, which may not be the case, or project them as victims of majority tyranny. This creates an atmosphere of fear and suspicion, which, at the end of the day, proves detrimental to the interests of the minority groups. Divisive politics undermines the strength and solidarity of the nation. Therefore it is incumbent upon the ruling apparatus to discourage vote bank syndrome. Keeping in mind the sensitivity of the people, sectarian tag to political dispensation ultimately becomes a hindrance to the minority groups in their healthy integration into national mainstream. Alienation is its logical end.
On the other hand minorities need to widen their perspective with a vision of the future. People of great nations sink and swim together. Minority political parties, while maintaining their identity and individual existence can achieve pretty little if they do not dovetail their priorities to the broader interests of the society and nation. It has to realize the constraints, which a rule- based democracy places on majority. What is important is to avoid confrontational politics and adopt cooperative politics. It is the lack of this essential element in the case of Middle East issue that has been hanging fire for nearly eight decades in the past and is imperiling world peace.
I have gathered from my study that Islam provides befitting space to religious minorities in an Islamic state under the instrument of dhimmitude, which Islamic history tells us worked well during the days of the Caliphate. I desist from expanding this subject and initiating a debate on the feasibility of application of this concept in a predominantly Muslim state in a secular union. But in the context of modern times, the age of globalization, I deeply cherish the social philosophy of the great jurisprudent and law compiler of Islamic faith, namely Imam Abu Hanifa. I quote him: “I vouch that all people of the Qibla are mu’mins and that none of them becomes an infidel by omission of their deeds. He who has faith and also performs his duties is without doubt a mu’min and destined for Paradise. He who is devoid of both faith and deeds is an infidel and destined for Hell. He who has faith, but omits to act is certainly a Muslim, but a sinful one. It is up to God to punish or forgive him.”
In some circles of political science experts, it is suggested that one practical way of alleviating the grievances of minorities could be investing an institution with veto rights to decide on such crucial issues as would have long time bearing on the interests of the minorities. The question is what that mechanism can be? Will it be a mechanism or an institution? How will that mechanism perform a role in a situation where judicial structure provides for redress of grievances to the aggrieved? We have seen that the Minority Commission of India though, in some cases convinced of certain legal, administrative and practical discrepancies in minority dispensations in the states, is not empowered to take a direct action to rectify the shortcoming. A veto right to any institution or structure in a democratic country with fully developed and expanded judicial arrangement would be only an indication of lame governance. This hardly goes in the interests of the minority communities.
We have quotas, reserved seats or other mechanisms ensuring representation of minorities in law making bodies like the parliament and the state assemblies. Even on other institutions like tribunals, councils and advisory bodies, quotas are allowed. One cannot dispute the wisdom behind this measure to assure the right of minorities. But in fully appreciating the utility of this instrument, we are once again forced to revert to the basic question of definition of a minority. How would we deal with sub-division of a recognized minority and how would we account for a minority not recognized formally. Again how would we synchronize the status of a regional minority when it simultaneously qualifies for national majority status and vice versa? Therefore either we need to regularly update our classification of minorities or we need to construct a new pattern of quota and reservation system.
This becomes all the more important in view of two more elements. One is the rising standard of living and improvement in economic and educational level of people in the country. The second is increasing consciousness of social, regional and sectarian identity among the people.
In some societies the subject of autonomy and self-governance has become cherished slogan to highlight and substantiate their respective identity. This consciousness could develop into widespread political movement and then what develops is a confrontational situation between the ruler and the ruled. While considering situations like this, the general approach is to examine the extent to which people are enabled to promote and protect their political, civil, linguistic, educational, religious and cultural identity. In a scenario in which these rights stand promoted and enjoyed, political dissent seems rather unnecessary.
But it has to be noted that stonewalling political participation of a minority is unacceptable. While the ruling apparatus is responsible for fair and free election, the minority is equally responsible for active participation in the national event. A boycott call given by dissenting parties or groups in an exercise of electing representatives of the people is tantamount to violation of the fundamental right of an eligible voter citizen.
There are various ways of pursuing minorities to pursue their participation in political process. It is for the Election Commission of India and the State Election Commission to devise ways and methods that would ensure participation of all categories of minorities whether religious, linguistic, ethnic or political. It should also be possible for the Election Commission to recommend to the Government for adequate amendment to the Constitution of India or the State Constitution in order to accommodate minorities that have got disenfranchised for one reason or the other. The Election Commission should have debated the demand of the Kashmiri Pandit displaced person for a constituency in exile. By creating conditions that would facilitate them expressing their political will through recognized means of election, the Government would have strengthened the civil society. Non-participation of a minority in the political process makes a lame assembly.
The crucial point in regard to minority rights is how would it be possible to ensure an effective role by minorities in policy and decision making process of a state? It is unrealistic to think that a minority, while caring for its interest and concerns, ignores the interests of the nation and the majority community. Even if this .thinking prevails, the majority community and the ruling groups have the responsibility of removing their doubts and fears. A process of regular liaison between the two sides will considerably reduce irritants and iron out angularities.
If the major institutions of the state or the organs of the state do not have adequate minority representation, the path of the entire nation will be strewn with thorns. To own a minority is the quality of leadership, to carry it along is the quality of statesmanship.
Part II: Status in exile
A. J&K Constitution
We the Kashmiri Hindus (Pandits) say we are a religious minority in Kashmir Valley. But National Commission for Minorities, by virtue of Section (c) of NCM Act 1993, does not include us in its list of national minorities. Obviously, we are clubbed with 80.3 % Hindu majority of Indian nation. Hence minority rights provided by the law of the land do not accrue to us.
If this argument caries weight then, by the same token, Kashmiri Muslim majority group, being part of Indian Muslim minority, will be entitled to only minority and not majority rights in the State. But their robust claim of majority rights is conceded without a hassle.
Clubbing Kashmiri Hindus with Indian Hindu majority brings into question the jurisprudence of discriminative application of Article 370 of the Indian Constitution to the State of Jammu and Kashmir
This apart, some judicial pronouncements like in T.M.A Pai case by the Supreme Court recognize the federating States and not the Indians Union as the unit for determining a specific group as “minority”. Under Act 141 of the Constitution of India, the verdict of country’s highest court has the force of law.
Nevertheless, conscious of this contradiction in terms, the Chairman of National Commission for Minorities, responding to a Memorandum (18 December 1998), from Kashmir Hindu Conference wrote to the then Home Minister Mr. L.K. Advani as this:
“I recommend and request that you may kindly issue necessary directions to the Government of Jammu and Kashmir for an early acceptance and implementation of the very reasonable demand made by the Hindu Minority Conference, which the Commission has fully endorsed in their entirety.” (No. CH/98/NCM dated 12 January 1999).
Neither the Union nor the State government reacted.
The discussion demands that we look for some precise definition and identification of a “minority”, something that has eluded social and political scientists in their national and international discourses on the subject. Recognition of a minority group is a crucial pre-condition for protecting minority rights. How shall we arrive at that recognition?
What has the Constitution of J&K State to say about the minorities of the state and their rights? Let us examine it in detail.
Minority groups in the State of Jammu and Kashmir are generally under an incorrect impression that they are formally recognized as minorities. This is not the case.
The Constitution of the State does not at any place specify any group as minority, nor does it provide any defined and specific safeguards for the minority groups. By and large, the constitution is silent on the subject.
However, the Report of Basic Principles Committee 1954, while dealing with the item of fundamental rights, states as this:
“Having taken note of the fundamental rights provided in various constitutions including the Constitution of India, recommends the following rights . . . . “ Then under item 8, it states: “Cultural and educational rights should also be guaranteed by the constitution. The interests of the minorities should be protected and any section of citizens having a distinct language, script or culture should have the right to conserve the same”.
This is the only place where the Constitution of J&K has brought in the term “minorities” and then goes on to make a mention of citizens with distinct language, script or culture. Since language, script and culture fall in one category, it inadvertently refers to cultural identity of a minority without, of course, specifying it in any detail. “Religious minority” does not occur anywhere.
Ordinarily, the state constitution speaks of groups, especially the labourers, peasants, craftsmen and others, but strictly not in the sense of minorities but as skilled or unskilled groups with obvious economic interests. It nowhere speaks of categorization of economically weaker sections, but generally, speaks of “poverty stricken people of the State” without categorizing them.
It is evident that the Constitution of Jammu and Kashmir written in 1952-53 was drafted by the Constituent Assembly in which there was absolute majority of NC members while there was no opposition whatsoever. So the constitution was the brainchild of one-track thinking and application.
We are aware that towards the last phase of freedom struggle led by the National Conference, this frontline political party was under great influence of leftists and Naya Kashmir Manifesto was the bible of NC by which its leadership swore. The most important and immensely hyped issue before the NC during the freedom struggle and immediately after it was that of land to tillers, or, in other words, putting an end to feudal system of olden days. Naya Kashmir blinkers did not allow it to look sideways; it could not envision deep and wide social intricacies of a civil society on its way to long-range economic planning and development. What ignominious fate awaited Naya Kashmir soon after its lone achievement of land to tillers came to fruition is a major phenomenon for any serious student of contemporary Kashmir history.
Addressing the Constituent Assembly in 1951, Sheikh Muhammad Abdullah cited the French Constitution and said, “The source of all sovereignty resides fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imperceptible. It belongs to the nation.”
“The future political set up which you (members of Constituent Assembly) decide upon for J&K must also take into consideration the existence of various sub-national groups in our state. Our constitution must not permit concentration of power and privileges in the hands of any particular group or territorial region. It must afford the fullest possibilities to each of these groups to grow and flourish with their cultural characteristics without detriment to the integral units of the state.”
This extract from the speech of the Sheikh shows that he had only the three geographical regions of the state in his mind, which he did recognize in a sense, were three separate social, cultural and linguistic entities though integral to the main body of the state. It can safely be said that he had the concept of geographical entities in mind and not of groups.
There is a fairly comprehensive discussion on the term “citizenship” in J&K Constitution. Good exercise has been done by the framers of the constitution to be specific on state-subject theme.
For example, reflecting on the Delhi Agreement of 11 August 1952, the Sheikh said it was agreed that:
“The state legislature shall have powers to define and regulate the rights and privileges of the permanent residents of the state more particularly in regard to acquisition of immovable property, appointments to services and like matters. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of J&K who went to Pakistan in connection with the disturbances of 1947 or in fear of them as well as those who had left for Pak earlier but could not return.”
Two inferences are drawn from this statement. One is that the state assembly being the representative of the people has cared for only those citizens of the state who went to Pakistan because of disturbance and the fear before or after 1947. There is no mention of those people who, under similar circumstances were forced to flee the state and move to other parts of the Indian Union. The second inference is that those who left the State in 1947 for identical reasons and went to India have, over a period of time, lost their State citizenship rights. So what the constituent assembly cared for was blocks of populations or citizens of the State not their religious, ethnic, linguistic and cultural denominators. This is how the rights of minorities were brushed aside.
G. Indian Constitution
As far as the Indian Constitution is concerned, though it, too, is not specific on the issue of minorities, however, it has identified five groups on the basis of religion, to be categorized as minorities. These are Muslims, Christians, Buddhists, Sikhs and Parsees. Minority status accrues to them when juxtaposed to the Hindu religious community with a majority of nearly 80 per cent in the country. By and large, Indian State has approached the minority issues only through the prism of religious distribution, which, however, has not stood the test of time.
Here two questions arise. First should this categorization made by the Indian Constitution become applicable to the State of Jammu and Kashmir or not? Second and more important question is what its definition of a minority is?
In regard to question number one, if the Constitutions of India and of J&K recognize that all citizens living in Indian Union including J&K enjoy equal rights then there should be no difficulty for the State of Jammu and Kashmir to follow the principle of categorizing minorities on the basis of their religion. This, however, is not the case.
As regards the second question, the truth is that there is no uniform definition of a minority anywhere in the world. Even the United Nations has been grappling with the definition. The core reason of inability to evolve a commonly acceptable definition of minority is that in the process of sustained economic development and emerging social changes, new social identities emerged looking for specific rights and privileges which the state needed to concede. Thus minority-ism is to be linked to economic-social development and that is an enduring process. Sadistically some call it the “tyranny of minority”
The concept of minority as an essential and integral part of larger civil society was given for the first time by the United Nations when it kook up the human rights issue. The UN Commission of Human Rights was initially named Commission for Minorities. Only lately it was re-christened Human Rights Commission and now Human Rights Council.
At the United Nations, Minority Rights edifice is actually built on the basis of General Assembly “Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” adopted on December 18, 1992. Thus we find that in accordance with the Declaration, the main criteria for a definition is that it has to be a national, ethnic, religious or linguistic “minority. Till this day, this broad definition has been the cornerstone of any debate or resolution of the UN Human Rights Council or any other subsidiary body of the UN/ECOSOC on minority situation of J&K State to say about state minorities and their rights?
B. Exodus and Displacement
Jammu and Kashmir, a Muslim majority state, is the only state out of 28 federating units of the Indian Union where religious cleansing of a bare 3 per cent Hindu minority happened in 1990 at the hands of externally sponsored and armed insurgents in collaboration with their local operatives and sympathizers.
What happened in Kashmir that led to the extirpation and displacement of the Hindu minority community? Let us have an idea of it.
On the dark and chilling night of 19-20 January 1990, Srinagar multitudes defied curfew orders, poured out on the streets, lanes, by-lanes, squares and open spaces and raised deafening slogans of “Na’ra-e Takbir” “Allah-o-Akbar”. “Azaadi Zindabad, Pakistan Zindabad. Telephone bells rang uninterruptedly in almost every house blurting the message “come on streets and join the azaadi congregations from end to end”. Old and young, men and women irrespective of their status, age and views came around in large crowds clapping their hands, waving fists and exuding triumphant enthusiasm. Bonfires were made on crossings and by-passes. Mats, carpets, rugs and other furnishings were spread out in the streets where triumphant crowds sat hurling abusive anti-India tirade and rejoicing on dragging Kashmir into a chaos of their making. In that bizarre and mystifying scenario everybody seemed to be nursing the dream of dramatic results to unfold sooner than later. Their idiom was something different from what it used to be in normal days, their looks demonstrated stubborn defiance and resistance.
At dawn, loudspeakers fitted to mosque tops hummed with slogans of azaadi and allah-o-akbar, calling the faithful to join the struggle for “freedom” and asking the Indians and pro-Indian elements to wind up their shops as their doomsday had come. Mosque harangues centered on slogans like “azaadi ka matlab kya – la ilaha il allah” (what is the meaning of azaadi/freedom? It is that there is no god but God). By next morning two more slogans were added to the public cry. These were: (1) yahan kya chalega/ nizame Mustafa, and (2) asih getcheh Kashir Panditav bagair Panditanew saan (we want Kashmir without male Pandits but with Pandit females). Al-Safa, the Srinagar-based Urdu mouthpiece of radicals and jama’atis candidly wrote that Pandits desirous of staying back ii Kashmir shall do so only after adopting nizam-e-mustafa meaning the system of Muhammad (pbuh). The mosques and congregations were agog with fervent solicitation for the prosperity of Pakistan, the land of pure Musulmans. Overnight, green and Pakistani flags replaced all tri-colour Congress and plough-bearing red flags of National Conference. Thousands of young and old wore green arm bands as a mark of solidarity with Pakistan. Shops remained closed, transport vehicles went off the road, life came to a standstill, government had resigned and the outgoing ministers shut themselves up in luxurious ministerial bungalows in Jammu with no ostensible interaction with the civil society but surely in clandestine and secret liaison with the insurgent leadership. Srinagar police went into hibernation — their seniors having established contact with the radical militants on individual level.
In this situation of mass revolt life remained paralyzed and no security and law enforcing apparatus seemed to be functional. The scared and frozen minority of Kashmiri Pandits found itself face to face with life and death situation. They began leaving their homes and hearths, and headed towards Jammu for safety and security. They left by trickles fearing that movement in large numbers might tempt the miscreants to embark on misadventure. In buses, taxis, lorries and trucks, the Pandit families like frightened birds huddled together and headed towards Jammu carrying with them nothing except the clothes in which they had wrapped their skeletons. Once they crossed the tunnel, they breathed a sigh of relief. They felt their life and honour were somewhat safe. Nobody even thought of what he had left behind. They headed to unknown destinations, unknown people, unknown environments, and unknown fate. The instinct for survival made them hope against hoping. The echo of “Kashmir as the symbol of secularism” nauseated them; they began hating a word, which they had hitherto owned with pride.
As life began in about nine refugee camps in Jammu region, the fleeing Pandits were to receive one shock after the other. The first was that of state and union governments labeling them “migrants” and not “internally displaced persons”. The second shock was the massive propaganda carried out by the local press and sadistically endorsed by sections of national press that Pandits left their homes on the behest of Governor Jagmohan who wanted “to order bombardment of the Muslims in the valley”. Adding to this canard, everybody in Kashmir said that Jagmohan had promised the Pandits a residential bungalow for each family outside Kashmir. There are still sadist in large numbers among media persons, civil society and bureaucracy in the valley and in Delhi who tenaciously cling to this canard. Even a person like the then defence minister on a visit to Srinagar told the media that the Pandits had grabbed all government jobs and this was a revolt against them. This was the statement of a minister whose establishment (defence ministry) was locked in a proxy war with armed insurgents, then as well as now twenty years later.
Two decades have passed by, and three hundred thousands people, forced out of their millennia-old habitats in the Valley of Kashmir are still eking out a miserable existence in refugee camps and rented rooms in Jammu, Delhi and other cities. Under distress they had to sell their left-behind properties at a throw away price because they need to make both ends meet. That is the story of a small religious minority made refugees in their own country — a secular democratic country of which Kashmir was the symbol of secularism in the eyes of Indian political stalwarts.
Instead of facing dire threat to the stability of the state with courage and determination, the popularly elected Congress-NC coalition government quit office and abandoned the people, particularly the defenceless minority, to the rapacity of insurgents. In doing so, it facilitated space for the insurgents to indulge freely in acts of pogrom and violence against the Pandit minority. Protection of life is the foremost constitutional and moral responsibility of a democratic arrangement. It is also the first article of the UN Charter on Human Rights. J&K government miserably failed to in its duty.
Failure of the government, absence of security and protection, rising crescendo of Pan-Islamism and selective killings of Pandits left them with no option but to abandon their centuries old homes and hearths and seek refuge outside the valley.
Tacit communal contours of insurgency explain why the government at the Centre and State officially categorized the as “migrants” and not with a nomenclature warranted by hard facts of their exodus, viz. Internally Displaced Persons. The National Human Rights Commission, to which the Pandits appealed, declined to recognize them as “Internally Displaced Persons” Thus “migrant” tag stuck to their identity.
Paragraph 2 of the Report of the Representative of the UN Secretary General pursuant to the UNHRC resolution 1997/39, dealing with the scope and purpose of the Guiding Principles defines the IDPs as follows:
For the purpose of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border. (E/CN: 4/1998/53/Add.2. page 5)
The Report further says:
Loss of life, brutality, violence and threats thereof that create a climate of insecurity frequently force people to flee their homes: for instance, in cases of direct or indiscriminate attacks on civilian sites. In fact, violence and threats affecting life and personal security are a particularly effective and frequently used means of inducing displacement and are often also employed in the course of displacement. In some cases the forced movement of persons may amount to genocide, including “ethnic cleansing”, or to inhuman and degrading treatment. (E/CN.4/1998/53/Add.1. p.5)
In the matter of “religious cleansing” of the Pandits from their native place, the Government of India stated in its report to the International Commission of Jurists as follows: (Human Rights in Kashmir: Report of A Mission, ICJ, 1995, published in Zurich, p. 68)
The violence in the State since 1989-90 has been characterized by …… the targeted killing of members of the Hindu minority community, which has led to the exodus of over 250,000 members of the community resulting in a change in the very demographic profile of the area and blatant religious cleansing; use of indiscriminate violence against innocent civilians generally to create terror ….”
Government of India’s report notwithstanding, the International Commission of Jurists’ own finding runs as this:
Most of the Kashmiri Hindu community ……..fled the Valley in early 1990. The assassination of a number of leading Hindus and threats of violence by the militants were enough to persuade the Hindu community to flee. (Ibid. P. 68)
A careful study of this official document of the Government of India brings out some eye-opening affirmations such as: “targeted killing” “Hindu minority community” (emphasis on minority), “exodus of Pandits”, “changing demographic profile”, “blatant religious cleansing” and “indiscriminate violence”.
Certain forms of forced removal, in particular in the context of “ethnic/religious cleansing” or extreme suppression of ethnic or indigenous peoples may amount to genocide. Genocide constitutes an especially grave form of violation of the right to life. Article 1 of the Genocide Convention recognizes genocide, committed at any time, to be an international crime. Article 11 of the Genocide Convention defines genocide as “… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as (E/CN.4/1998/53/Add.1. p. 18):
- (a) Killing members of the group;
- (b) Causing serious bodily or mental harm to members of the group;
- (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
Taking into view Government of India’s honest statement to the ICJ, and also the advice of the UN Human Rights bodies, the questions that may be asked are: (1). Why does the Government of India or of J&K State deny the minority community their proper status of regional/reverse minority? (2). When ethnic cleansing, exodus and indiscriminate use of violence against the community have been there, why did the National Human Rights Commission deny us the status of IDPs? (3). When in addition to atrocities stated in 2 above, the Kashmiri Hindus were subjected to “indiscriminate violence, why did the National Human Rights Commission stop short of declaring it “genocide” of the Kashmiri Hindu minority community and remained content with the fuzzy expression of “near genocide conditions”. The community wants answer to these questions.
Condemning ethnic or religious cleansing as grave violation of all basic principles underlying the international convention on the Elimination of All forms of Discrimination, the UNHR Committee, in its concluding observations on the report of the Republic of Bosnia and Herzegovina states that it is never admissible. (CERD/C/247/Add.1, See also E/CN.4/1998/53/Add.1 p. 17) Indian state as a signatory to the Charter of Human Rights and other treaty bodies at the UN, besides being the operative agency of a very creditable, humanistic and comprehensive constitution, will have to come with a clean slate on the issue of minority status, IDP status and genocide status of the Hindu minority community of Kashmir.
Conceding the right of the states to sovereignty, it would be apt to refer at the same time to the concept of “sovereignty with responsibility” as enunciated in the Guiding Principles of the Representative for the IDPs. In that sense it does not seem justifiable for the Indian state to obstruct, as it has hitherto done, the affected IDPs from enjoying the rights and privileges, which are provided by the international community through various UN instruments and treaty bodies. It is tantamount to disregard of international obligation if not violation of human rights of the IDPs when they are kept outside the jurisdiction of the Emergency Relief Coordinator (ERC) designated by the UN Secretary – General as the United Nation’s focal point on internally displaced persons. (See Para 9 of E/CN.4/2003/86/Add.6. p. 6.) Among other serious deprivations caused by refusing to declare them as IDPs would be the denial of their right to seeking asylum in a foreign country. This is gross violation of human rights and the right to freedom of movement.
Exodus is not migration. States do not offer return and rehabilitation packages to “migrants”. Those to whom it is offered are IDPs who, by UN definition, are as good as international refugees. Therefore their return is governed by established norms of return of IDPs set forth by the UN Guiding Principles for IDPs.
The first condition of return is security of life. Article 1.1 of UN Declaration on Minority Rights says, “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.”
This gives rises to a crucial question, namely what threatened our existence and identity in our native land on the eve of our exodus. This, inter alia, means determining the causes of the rise of externally sponsored and internally supported religion-based armed insurgency. Because no such determining has never been done, it leaves space and scope for our re-foulment. It is also linked to broader perspective of national security and territorial integrity of the Indian state.
We are advised that an important pre-requisite of Pandit return is securing goodwill of the majority community. Usually, inter-community dialogue aims at revitalizing nation-building process. But it is here where the Pandits get stuck up. When the very national identity which the dialogue seeks to promote has become partly contentious and partly ambivalent, inter-community dialogue loses its credibility and relevance. The right question is not how many families will return: the right question is has the government reversed and addressed the root cause of anarchy in Kashmir? Does it feel convinced that the discourse on contentious national identity has been set at rest through universally acceptable political dispensation? A candid answer to these questions will be a decisive factor in determining the future course of action for the displaced minority. The return of the natives is not just an economic issue; its political dimensions precede economic imperatives.
Goodwill of majority group needs crystallizing the consciousness of equality of all citizens in enjoying political, civil and human rights. All citizens, irrespective of ethnicity, religion, language and culture, are entitled to equal rights to land, natural resources and public institutions of the state. Moreover there has to be full realization that diversity of the human family must be recognized as a source of enrichment rather than as a threat. Goodwill has to be based on principles of human relationship and not on a culture of appeasement.
At this stage, comes in the crucial role of local leadership with mass base in the valley. The onus of creating atmosphere conducive to inter -community dialogue lies with it.
The second pre-requisite is recognition and practical implementation of the principle of community’s active participation in the development of the State. Article 1.2 of the UN Declaration on Minorities says: “States shall adopt appropriate legislative and other measures to achieve those ends” The spirit of this article embodies the crucial issue of political empowerment of the minority.
We know that numerical smallness and physical dispersal of the community in the valley were its handicaps in securing proportionate representation in state legislature. They were deprived of community voice in the organs of the state. In changed circumstances their return and retention are contingent upon reversal of pre-exodus situation. Conditions need to be created that will ensure their compact rehabilitation facilitating their political empowerment by adopting normal as well as special measures particularly constitutional and administrative. We hope national and state constitutions are flexible enough to accommodate our right to positive political participation.
The right to participate in all aspects of the life of the larger national society is essential, both in order for persons belonging to minorities to promote their interests and values and to create an integrated but pluralist society based on tolerance and dialogue. By their participation in all forms of public life in their state, they are able to shape their own destinies and to contribute to political change in the larger society.
It has two aspects namely (a) need-based relief while in exile and (b) relief after return. In the former case, not only human rights activists and NGOs but even responsible authorities have expressed shock on sub-human conditions of life in camps or rented spaces. Amelioration of living conditions is an urgent humanitarian task not to be delayed in any case. Reducing unemployment among the educated youth is of vital importance.
As regards repatriation-connected relief, Prime Minister’s package announced nearly two years ago is under consideration of the government and the affected community. We shall take it up for in-depth discussion in Part III of this paper. Since a political package encompassing many vital aspects has been discussed in this paper, it becomes logical precursor to the economic package and the two in combination can facilitate returnees in taking a calculated decision. We may have to wait till the time horse is put before the cart.
Many options of rehabilitation of the displaced persons have been suggested over a period of time. Whatever their content, it is clear that the community has been longing for return to and retention in Kashmir. What should be the right thing to do once a decision has been taken to return? In a democratic arrangement, nobody can under estimate the power of the vote. How do we consolidate our vote? It cannot happen in dispersal and it cannot happen in negative approach to political realities. The fundamental and irrefutable point is that we unanimously reject fragmented rehabilitation in Kashmir. Our compact rehabilitation is the rock-solid guarantee against violation of our rights as a minority and as citizens of the Indian state. The UN Declaration on Minorities and the UN Principles for Protection of IDPs both assure us that we cannot be coerced into return, we shall not be re-fouled and we have the right to ask for rehabilitation compactly in the land of our origin.
Return and rehabilitation of Pandit displaced persons is linked to the basics of obvious disadvantages from which minorities generally suffer. We may explain it:
- The essential ingredient of inter-religious cooperation in democratic dispensation is evocation of national identity. But if national identity is a contentious issue, it puts the process of inter-religious cooperation into serious jeopardy. In other words, re-vitalized national identity will make inter-religious cooperation realistic.
- Can an assembly of peoples’ representatives be a valuable national symbol as long as the minority is not part of it?
- An assembly is the commitment of the state to the preservation of cultural heritage of minorities. Non-representation of the minority in the assembly absolves the state of any such commitment.
- Democratic institutions, particularly at local levels, are crucial for minorities to voice their concerns and achieve meaningful solutions to their problems. As we see the State institutions are not fully geared to full transition of the culture of democracy. Mainstream political parties are loath to take on sectarian agenda of dissident segment.
- Rehabilitation of internally displaced people is essentially a matter of goodwill generated between the majority and the minority. Positive role of political leadership on both sides is a crucial catalyst to this process. In the absence of political will, neither the bridges of understanding can be created nor the concept of peaceful co-existence implemented. Rhetoric is different from what the ground situation is.
- According to the recommendations of the Working Group on Minorities of the UN Council on Human Rights, the Internally Displayed Person enjoy almost same rights as international refuges do, which includes seeking asylum or a concentrated habitat within the limits of their land of birth. This means first a political approach to the issue of rehabilitation and then the economic package in one form or the other. The logic is that Prime Minister’s package, essentially an economic package, should follow a political package. So far nothing of the sort has happened.
Having said that, we now analyze Prime Minister’s Package for Kashmir and try to find out to what extent it meets the pre-requisites of the displaced community.
Part III – Prime Minister’s Kashmir Package: A Critique
After two decades of sustained appeasement, special grants and packages, innumerable facilities in one name or the other to those whose machination brought about religious cleansing of the valley of all non–Muslim traces, the Union government is now feeling that all its gimmicks may not work. Somebody drilled the idea into the heads of policy planners in New Delhi that Kashmiri Pandits, being of same linguistic-ethnic origin as the Muslims of the valley, could be used as sustainable buffer between the Indian State and the defiant civil society of Kashmir valley. For quiet some time, the union government has been pandering to this romantic perception, and has begun to move nuts and bolts. But a closer study will reveal that in a run up to this idealistic view whatever it would want to give to the Pandits is given only very reluctantly and not without adulteration. Let us examine this gratuitous offer.
On a visit to J&K, Prime Minister Manmohan Singh announced at Akhnoor on April 25, 2008 a major relief and rehabilitation package for Kashmir. Addressing a rally he said,” The government was concerned about the condition of widows and orphans – the victims of militancy related violence – and the state government would work out a package for their rehabilitation. 6,000 migrant youth would get jobs and the central government would pay the salaries of 3,000 of them. The government would also consider a package for other unemployed youth of the community.”
On the 55,000 “migrant” Hindu families, the prime minister said, “To help those who had made distress sale of their properties the state government would identify land where group housing societies would be constructed for them. The government would give “migrant” families who opt to return to the Valley a grant of Rs.750, 000 to build or buy homes.”
“We have also decided to give a similar grant to “migrant” families whose houses have been fully or partially damaged. We will assist with transit accommodation and start-up expenses,” he said.
He also said, “The monthly relief being given to 15,000 displaced families in Jammu and Delhi would be continued for those who opt to return to the Valley for a period of two years to enable a smooth transition.
The government is also examining the possibility of providing assistance to children of migrant families through the National Foundation for Communal Harmony and the J&K Rehabilitation Council.
“The migrant families engaged in agriculture and horticulture would require assistance to renew their occupation in the field. We will provide grants to those having agricultural holdings and for restoration of orchards which have been lying abandoned,” (Source: http://www.thaindian.com/newsportal/business/pm-pledges-major-relief-for-kashmir-migrants-refugees_10042059.html#ixzz0cEg9dX8Q).
This is the crux of Prime Minister’s package for the relief and rehabilitation of victims of terrorism in Kashmiri including the Pandit “migrants”. For the first time in two decades and ever since the exodus of the Kashmiri Pandits from the valley, the Union government has offered what it labels comprehensive relief and rehabilitation package to Kashmiri “migrant families”. Why did it take the government twenty long years to look into what happened to just three percent religious minority in Kashmir Valley with a 98 % Muslim population? While several inquiry commissions were set up to probe into Godhra episode, or the killing of some youths in connection with the terrorist attack in Chhatti Singhpora, or the Shupian “rape and killing” case, no inquiry was ordered either by the Union government or by the State government to probe the rise of armed insurgency, religious extremism and the killing of several hundred innocent Pandits in Kashmir in the first thrust of the gun-wielding youth of Kashmir Liberation Front incepted in London by the PoK Diaspora through abetment by ISI.
It took the state government a year and a half to take the first small step towards implementing Prime Minister’s 1618-crore package for rehabilitating displaced persons from the valley. There might have been more delay if the Supreme Court, n a hearing of a petition filed by All India Kashmiri Samaj (Delhi), ad not asked the State government what steps it had taken for the implementation of PM’s package.
Te State government constituted Apex Committee with representatives from the government and the displaced persons to hammer out operative modalities of the package. It totally ignored a number of objections and observations made by various organizations of internally displaced Pandits in Jammu region. Thirty-one representatives from this community, most of them nondescript persons, were nominated on the Apex Committee. Major political organizations of the IDPs, including the most articulate Panun Kashmir (both factions), declined to be part of the Apex Committee arguing that the package was nothing more than eyewash, and circumvented the core issue of the rise of Theo-fascism in Kashmir.
Interestingly almost in all official relevant release, the State government said, “An Apex Committee is constituted which will monitor the return of Kashmiri Pandit migrants to the valley”. The release made a. passing reference to one or two salient features of the rehabilitation package and left much to be hypothesized. Very conspicuously, these official releases meticulously avoided touching on security scenario in Kashmir.
Though belated, nevertheless the step taken by the government had to be taken as ice breaker. Maybe as interaction between the stakeholders deepened and discussions become more meaningful, many irritating angularities that have bedeviled resolution of the issue would be straightened. It was a matter of time and patience
Conscious of the fact that a minority’s dependable protection could be provided by none but the goodwill of the majority community, the Pandits wondered why there was no representative of Kashmir valley civil society in the Apex Committee. The Pandits, after their return to the valley, were not to live with state bureaucrats and policy planners: they will have to live with ordinary people of the valley, meaning the Muslim majority. Therefore smooth return to and secure living in the valley after two decades of unsavory estrangement depended on the goodwill of the majority community and not on assurances, true or false, doled out by the administration and state organs. The government should not have lost sight of that reality while constituting the Apex Committee. Unless there was responsible representation of Kashmir Muslim majority on the Apex Committee it would remains toothless.
Interface between the Apex Committee and the representatives of Pandit organizations began on 23 September 2009 at Jammu. Media reports were that the maiden meeting was conducted in friendly atmosphere.
Presumably, in this first session the official team at least got an idea of how much complex their task was. Obviously, to cope with 31 Pandit representative organizations and individual opinion-makers, all with a wide and varied perception of issues and proposals up their sleeves, must have been a formidable task. Maybe the teams of Pandit representatives also, realized the tactical need of unifying their voice and forging their own steering body within or outside the Apex Committee. After all this is a long-drawn process.
The reported statement of the chairman of the Apex Committee that “the Prime Minister and the Congress Chairperson are also monitoring the implementation of the package” could be nothing more than antics of a sycophant. The Pandits had nothing to be excited about it. Had it been true, a year and a half would not have been wasted in deciding whether to talk to the Pandits or not.
Now that after protracted disinclination and under unknown compulsions the State government has initiated the process of implementation of the package, it is time that we bring under close focus what the package actually unfolds, and to what extent will it mitigate the suffering of the displaced Pandits.
Close and critical reading of the text of the package reveals that it has been drafted in remarkable diplomatic language that says the least what the PM in his person would want to say the most.
Once reflecting on China’s betrayal after Sino-Indian war, Nehru said that in dealing with China he had realized that the Chinese always put things in words in a way that they had one meaning for the writer but another for the reader. Mandarins at PM’s office seem to have fully mastered this Machiavellian art. The glaring lacuna is that they forget they are dealing not with aliens but with those whom Indian State calls its citizens but miserably failed to provide them security of life, property and honour in the face of their ethnic cleansing in 1990.
Coming to the brass-tacks, the first thing to be noted is that PM’s package is “relief and rehabilitation” package. It means “relief” and “rehabilitation” are two separate areas that need to be understood and treated separately. The interpretation is that one may need only relief and not rehabilitation; or only rehabilitation and not relief; or both relief and rehabilitation. Clarification should have come from the Apex Committee before it began deliberating on implementation part of the package. Providing a clarification means categorizing recipients according to some criterion, which it will have to lay down.
A woman whose husband or son is killed in militancy is a victim. But she has not been forced out of her house, looted of her belongings and deprived of her social moorings. Does she need relief or rehabilitation or both or none? This example would have helped formulate the criterion. The Apex Committee did not touch either on the definition or criterion
It should be noted that the PM’s package is for “Kashmiri Pandit migrants, refugees and victims of terrorist violence.” This means that there are three categories of beneficiaries of the package. The text is emphatic in identifying the first category viz. “Kashmiri Pandit migrants”, but it leaves other two categories vague, namely “refugees” and “victims of terrorist violence”.
Who are the “refugees”? The status does not apply to Kashmiri Pandits in any case as long as they are called “migrants”. To be precise, the Pandits are Internally Displaced Persons (IDPs) if we go by the definition of the United Nations Human Rights Character. Calling them “migrants” is tantamount to abusing the word. The IDPs had strongly pleaded their case with the National Human Rights Commission for proper and legal nomenclature of IDPs in place of “migrants” but without success. Taking cue from discouraging attitude of the NHRC, the revenue officials in the valley made peculiar entry (mufroor) meaning absconder against the names of Pandits in land and revenue records.
Who then are “refugee” in Prime Minister’s package? Are they the people who were thrown out of present PoK in 1947 as a result of tribal invasion, and who still are not acceptable to J&K Government as state subjects? Does it apply to those valley-based state subjects who, for some reasons, had to leave the valley on account of turmoil but did not register themselves as “migrants” anywhere in the country for reasons of their own? Does it apply to those who lived along the border and were forced to abandon their homes under threat of militancy or counter-militancy, and move to interior parts like people on border line in Poonch, Mendher, Rajouri, Akhnoor, Samba, Kishtwar, Kupwara, Gurez, and other sectors? Declining to define who precisely qualify for the nomenclature of “refugee” in J&K, the Apex Committee leaves the subject open presumably to accommodate a broad continuum of local citizenry outside the category of “migrants”.
The third category of recipients of PM’s largesse is of “victims of terrorist violence in Jammu and Kashmir.” Like “refugees”, this category, too, has been left unqualified. In the parlance of separatists, secessionists, and valley-based political class, the “victims” are invariably those who have been killed in the operations of security forces or their kiths. In the idiom of Kashmiri Pandit “migrants”, their entire extirpated community is the victim of “terrorist violence in J&K”. As victimized IDPs, they are the same as international refugees in terms of the definition of the UN Human Rights Charter.
Now if the idiom of either the separatists and secessionists or the Kashmiri Pandit “migrants” is to be accepted, then the number of such victims in each category runs into hundreds of thousands. As such, the Apex Committee is beset with a formidable task of defining the categories and laying down a criterion for admittance to that category. This is likely to create acrimony between two communities if a sensible, logical and reasonable definition of the category is not provided.
In the light of what is said, it is a misnomer to call it a “relief and rehabilitation package for the Kashmiri Pandits” as the chairman of the Apex Committee has been stating. Objectively speaking, it is a package for the State of Jammu and Kashmir and the Pandits could at best be one of the beneficiaries.
More amusing is to brand it a 1618.40 crore rupees package for the “Kashmiri Pandits”. In the light of what has been stated, the Pandits may or may not receive even one-fourth of the announced quantum of the package.
Since the PM has left these aspects undefined, the difficulty is of apportioning the share of each category in accordance with its needs keeping in mind other commitments made elsewhere in the package. The Apex Committee’s task is not that simple by any means.
The Pandit extirpation and internal displacement is a very peculiar case. It made the UN Human Rights Commission (Council) Working Group add one more definition to “Minority” viz. “reverse minority”. As such its problem needs to be addressed in an equally special and peculiar manner. Unfortunately, not doing that, the PM has clubbed them with other two categories which is unrealistic.
Again, the PM’s package says, “the government was concerned about the condition of widows and orphans –– the victims of militancy related violence, the state government would work out a package for their rehabilitation”. The use of two different qualifying phrases for one situation in a single paragraph of PM’s statement is noticeable. It is “victims of terrorist violence in J&K” and “victims of militancy related violence…” Who will define what the PM means by differentiating one type of violence from the other? In our interpretation, first category is of victims of terrorist insurgency and the second category is of the victims of “counter insurgency”.
If this interpretation is accepted, then the entire KP migrant community is a victim of terrorist violence in J&K and a vast majority of people mostly in the valley is the victim of militancy related violence/counter-insurgency. The differentiating clause is that while the former were hounded out of their home and hearth, the latter stay put at their habitats. By bringing in women and orphans as “victims of militancy related violence” the PM has added one more category to three identified ones. Thus there are four and not only three stakeholders for the package and the Pandit “migrants” can at best claim only one-fourth of the grand package announced by the PM and trumpeted by the J&K Government and the Apex Committee as “Relief, Rehabilitation Package for Kashmiri Pandit Migrants”.
The State government has been advised to “work out a package for their (widows and orphans) rehabilitation” (not relief). The question is whether funds for their “relief” have to be provided out of the total fund for the package offered by the PM or will the State government provide funds from it own sources? Or does the PM leave option to the state government to submit a fresh plan for this additional but exclusive package?
The overall impression is that the package has very subtly tried to dilute the case of Pandit “migrants” and make it a “secular victimization scenario in J&K” so that the government’s secular credentials remain intact.
Nobody objects to any category of victims receiving government’s largesse. But criterion for each category has to be laid down taking into account a number of factors. For example, a house-boat owner or a taxi driver in the valley suffered on account of militancy because his business collapsed as visitors desisted from coming to valley. He has been provided a “relief” of 3 lac rupees one-time package by the state government to rehabilitee himself. He has not lost his house or belongings or land or orchard or shop or other immoveable property. He may be considered for more relief, well and good. But a “migrant” who has lost all his property, house, land, orchard, shop, business, and social security cannot be taken at par with the houseboat owner or the taxi driver in terms of suffering inflicted on them by militancy. A sense of justice and equity has to prevail.
There are many more serious observations about other commitments made in the package that must evoke in-depth debate within the Apex Community and the civil society. For example, the question of employment promised in the package has many dimensions, which must necessarily be highlighted and addressed. Again, 1997 has been fixed as the cut off line for claiming distress sale compensation. What is the criterion of this arbitrary cut off line? It has to be remembered that most of the distress sales took place only after the Kargil war of 1998-99.
Owing to paucity of space I cannot proceed with a detailed critique of all subtleties and nuances of the package. I have touched on a few glaring aspects only.
Nevertheless the package has some positive and appreciable aspects as far as the “Pandit migrants” are concerned. We cannot lose sight of that. With all said and done, it is a good sign that a dialogue has begun and it should continue. There are sharp angularities no doubt, but with good intentions on both sides, hopefully the logjam can be dismantled with patience and perseverance.
The sticking points that remain in this debate are two: security concerns and political empowerment. Both are most crucial. But the perception is that in 1990 the Indian State failed or had no will or had political compulsions for not providing security to the Pandit religious minority community. Therefore, changing the entire concept of security of a minuscule religious minority in predominantly Muslim majority vulnerable to the insinuations of external elements needs to be brought under discussion. The Pandits have reason to seek the good will of saner and rational elements within the majority community of the valley before practically moving back.
.Once the return of the natives to the valley is recognized as an important factor of social cohesion, the question before the committee will be to hammer out a consensual blueprint of rehabilitation. Though return to homeland has been the common refrain of all Pandit organizations ever since in exile yet views on modus operandi of rehabilitation plan have often been divergent. No attempt should be made to bulldoze the varying views and the principle of free expression of ideas should prevail. This is how the traumatized community can be restored its lost confidence.
Conscious of that reality, the government visualizes leaving many options open. For example the option of cooperative rehabilitation is interesting, and in principle, should partially meet the demand of a large segment of the returnees. In doing so the possibility of district or tehsil level clusters are visualized. But why not move a step further and take a boarder and futuristic view of the situation. Stuffing pigeon-holes of multi-storey scrapers with the returnees is the deepest cut which should neither be inflicted nor accepted. A new township on a stretch of 50 thousand kanals of land is a simple and hassle-free proposition which the Apex Committee can place before the Prime Minister and the Chief Minster. As we know, none of the two leaders is averse to it. Moreover, the township plan is achievable within the budgetary allocations pre-determined in PM’s package. It has to be remembered that cooperative dwellings are invariably raised on sites provided by the state with all necessary infrastructural pre-requisites.
As the case of return and rehabilitation of the Pandits in the valley is discussed at various levels, it would be proper for the policy planners to think of a twin-city summer capital. The PDP had, during its tenure, thought of Parihasapora as the site for second capital city. A new capital city planned along the national highway and not far from the peripheries of Srinagar could house all Kashmiri Pandit “migrant” families and an equal number from among the locals like the re-located families from the Dal or the downtown Srinagar and other congested and unhygienic localities so as to give a sense of communal coexistence and harmony.
In the third week of December 2009, Jammu and Kashmir government issued a notification laying down mechanism (read rules) for the recruitment drive to 3000 jobs for the “migrants” under Prime Minister’s package. The arbitrarily framed rules for recruitment betray obvious communal slant and disadvantage to Pandit “migrants”. We explain as follows.
The package may be ambiguous in many of its parts but it is very clear and categorical about six thousand jobs to be provided to unemployed Kashmiri Pandit “migrants” with three thousand being budgeted by the central government. No other category is supposed to share these jobs with them. But the notification issued by the state government recently dilutes the stipulation.
From what one understands from the language of the notification, recruitment of Kashmiri Pandit candidates has been made very complicated and parochial in character. For example, the selected candidates are asked to report in the valley, and produce various documents in addition to making an agreement that “they will serve in the valley against the posts on which appointed and at a places where posted.” Why should the State government impose these arbitrary conditions on “migrant” recruits when nothing of the sort has ever been the stipulation for ordinary recruitments? Why the discrimination? A government employee can be posted anywhere as desired by the administration. That is what the service rules say. But why make a blatant and arbitrary specification for the “migrants”? This raises doubts about the real intentions of the government. The law will not support imposition of arbitrary rules.
Vacancies have been notified department–wise as well as on regional level. Why should the rule prescribe a selected “migrant” employee to serve only in the valley when he or she can be adjusted or transferred at a post in any one of the three regions of the state? Binding a “migrant” recruit to the Valley through a forced agreement is denial of primary human right viz. freedom of movement. If challenged in a court of law, it cannot stand either the spirit of service rules or the stipulations of human rights.
The rule prescribes in very clear terms that an appointee “has to serve in the valley and in case of leaving the valley his services will be terminated.” This again has a serious legal flaw. The government nowhere feels it necessary to assure the appointees that their security and safety are its responsibility. The law cannot uphold this unilateral and unjustifiable rule since the valley is still faced with and fighting the threat of extremist religious insurgency. A recent statement of the Union Home Minister said that more than 700 well-trained and well-armed jihadis were assembled along the other side of the LoC waiting to infiltrate into the state. A secular democratic government does not have the moral authority of demanding duties from its citizens without making a firm commitment of providing them security of life and property. Terrorism cannot be wished away by dragging the Pandits to the frontline: of course, it can be wished away by dragging the local frontline supporters and sympathizers to the rear line.
The notification states, “All the migrants registered with the Relief Commissioner, including the internally displaced migrants (within the valley) shall be eligible for applying for appointment against these posts”.
This is a bizarre piece of ruling and reflects perversion of the ruling circles. The State has given a new meaning to the term “internally displaced persons” first by appending to it the tag of “migrant” and then specifying them as “internally displaced migrants (within the valley)”. Migrants and IDPs are two different categories by all norms of definition. To further specify government’s thrust, the conditional phrase “within the valley” has been suffixed to “internally displaced migrants” which means the State government has accepted the nomenclature of IDPs but sub-divided them into two categories, namely “within the valley” and outside the valley. This is barefaced communal approach and “IDP migrants (within the valley)” is a simulation of Kashmir Valley Muslims. Incidentally Muslims outside the valley like those in Doda, Rajouri and Poonch districts of the state are kept outside the ambit of this definition notwithstanding the fact that many of them, too, are sufferers of terrorism. The purpose of clubbing three statuses is obviously to strictly pinpoint a particular group not by its proper nomenclature but by appending qualifying adjectival phrases to it only to make such persons entitled to maximum benefits of relief and rehabilitation.
Under international law a migrant is one who migrates out of his or her free will choosing a convenient time for migration and return as well as the destination spot. He or she may migrate to a foreign country as well. But an internally displaced person is one who has been forced by man or nature- made calamity to abandon his home and hearth and seek shelter somewhere else in the state but not cross the international border.
This universally accepted definition applies precisely to the Pandits from ethnically cleansed Kashmir Valley. Why does the government refuse to give them their proper nomenclature of IDPs and brand them “migrants”? Conversely, if they are called migrants because they left their home and hearth, then those who moved away from their homes in the valley are also “migrants” and not “internally displaced persons”. What makes the government bestow two statuses on them, migrants as well as internally displaced persons plus “within t he valley”? It also shows that the State government is uncertain about the legal status of the Valley boundaries. There must be a method in distorting standardized definition of the two categories. I don’t think law will allow double interpretation for one definition. Besides all this, the dichotomy becomes more explicit when a state takes its decision to declare a segment of its citizens as IDPs while rejecting the same to another segment under identical conditions. Moreover who has the authority to declare a group IDP’? Does it fall within the jurisdiction of a State or the Union List?
Another aspect of this rule is that the “internally displayed migrants (within the valley) become shareholders in 3000 out of 6000 jobs that are promised to Kashmiri Pandit “migrants” in the package. Nobody knows the exact number of “internally displaced migrants (within the valley)”; it has never been disclosed nor the number of “migrants” from the valley other than Kashmiri Pandits. This has remained a closely guarded secret with the government. Nobody should have any objection to providing jobs to as many unemployed youth in the valley as is possible but then the package should not be projected and trumpeted as a great favour to the Kashmiri Pandit migrants. When read between the lines, it shows that parity has been created between the extirpated community and three other categories of victimized people of Kashmir. Why then should it be called a package for the Kashmiri Pandit migrants?
The notification is overloaded with conditions and riders for “migrant” candidates like “registered migrants, “genuine migrants”, “bonafide migrants” and “authentication of migrant status” etc. It seems to be a ploy to find one or the other pretext for disqualifying as many “migrant” candidates as is possible and make space for “internally displaced migrants within the valley”. Producing a genuine migrant card issued by the Relief Commissioner should be sufficient to establish an applicant’s credentials. What more proof does a “migrant” need to produce other than a genuine registration card formally issued by the Sate Relief Commissioner under his seal and signature?
Incidentally, there is no indication of relaxing upper age limit in the case of Kashmiri Pandit migrants knowing that most of them are over-aged for normal recruitment in government service. Relaxation of upper age limit should have been part of the notification and module for recruitment of Kashmiri Pandit migrants. Everybody knows that “migrant” youth have crossed the age limit for employment because of their exodus. The “migrants” have been demanding relaxation order for many years.
The rule, according to the notification under discussion is that the selected will have to serve in the valley, and in case he or she leaves the valley, his/her services will be terminated. This is a very harsh and discriminative rule, which may not withstand the force of law. If the government speaks of the duties of a fresh Pandit recruit, it should also speak of foolproof security to the employees. The Pandits have faced ethnic cleansing which government failed to stop. The government cannot behave in an arbitrary manner and the Pandits will not be re-fouled. It has legal implications
It is for the government of the state and at the centre to see to it that communal, parochial or regional slant is not given to the spirit of the package. which the Prime Minister has sanctioned in good faith for all sufferers in Kashmir but more particularly in his own words, “to the small religious minority of the State as they have become the victim of ethnic cleansing, and refugees in their own country.”
Unfortunately the rules of employment of Kashmiri Pandit migrants notified by the government seem to be dismally falling short of humanistic norms. This tendency needs to be arrested. A law has to emanate from a sense of humanistic approach to problems and situations whether the affected people are internally displaced or not. That is the fundamental principle of a welfare state. It is, therefore, hoped that the government will change its attitude radically and not behave in an arbitrary manner in matters of great sensitivity.
Once the return of the natives to the valley is recognized as an important factor of social cohesion, the question before the committee will be to hammer out a consensual blueprint of rehabilitation. Though return to homeland has been the common refrain of all Pandit organizations ever since in exile yet views on modus operandi of rehabilitation plan have often been divergent. No attempt should be made to bulldoze the varying views and the principle of free expression of ideas should prevail. This is how the traumatized community can be restored its lost confidence.
Responsible organizations and opinion makers should give due thought to PM’s package, and not try to trivialize it in a fit of hatred or anger, howsoever justifiable, especially when he has generously left open the option of revision, amendments and improvements. It is a matter of the future of an entire historical community; a matter of far reaching consequences for the State of Jammu and Kashmir and for the Indian nation. Nations have to think of millennia and not of decades even when passing through a phase of deep depression and agony. Outright rejection is not the way of addressing serious issues like the one we are faced with. We need to talk, to point out, to argue, to convince and to get things done. By diluting or distorting the package we give our destiny in the hands of those who have little or no concern for it. Let us be our masters and let us shape our destiny with our own hands. The State had enough of peril, let the era of sanity dawn.
(The writer is the former Director of the Centre of Central Asian Studies, University of Kashmir).