The Supreme Court unanimously upheld its decision to abrogate Article 370 of the Constitution that bestowed special status upon the erstwhile state of Jammu & Kashmir, ordered restoration of statehood at the earliest and set a September 30, 2024 deadline for holding the Assembly elections.
The SC bench also recommended setting up of an impartial Truth and Reconciliation Commission (TRC) to probe human rights violations, both by State and non-State actors, at least since 1980.
Why SC bats for Truth and Reconciliation Commission?
• A collective understanding needs to be achieved of the human rights violations perpetrated both by state and non-state actors, against peoples of the region.
• There have been numerous reports documenting these incidents over the years. However, what is lacking is a commonly accepted narrative of what happened, or in other words, a collective telling of the truth.
• In the past, calls for setting up a Truth and Reconciliation Commission have also been echoed by different sections of the Valley.
• Recommending the setting up of a TRC is beyond the realm of the court. However, the SC bench was of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass responsibility of both State and non-State actors with respect to human-rights violations.
• This includes the duty to take reasonable steps to carry out investigations of violations. It is in this context that the proposed TRC accords with constitutionalism.
• The TRC will investigate and report on the violation of human rights in Jammu & Kashmir, at least since 1980, and recommend measures for reconciliation.
• The SC bench said this Commission should be set up expediently, before memory escapes. The exercise should be time-bound.
• The TRC encompasses a structural investigation of the events and socio-political structures that led to the atrocity, the particular circumstances of individual suffering, and an authoritative reporting of the results of the investigation.
• Additionally, truth-telling provides an opportunity for victims to narrate their stories, which facilitates an acknowledgement from those responsible for perpetuating the wrongs, and from society as a whole. This paves the way for reconciliation.
• The SC bench highlighted that the TRC, once constituted, should not turn into a criminal court and must instead follow a humanised and personalised process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different viewpoints and inputs from all sides.
• Taking a leaf out of South Africa’s book, the principles of “ubuntu”, or the art of humanity, and inclusiveness should be central to the process. This will facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity.
• TRCs have been particularly effective globally.
Truth and Reconciliation Commission in South Africa
• The South African Truth and Reconciliation Commission (TRC) was set up by President Nelson Mandela in 1995 to help deal with what happened under Apartheid.
• It had 17 members and was chaired by Desmond Tutu.
• It was set up to investigate human rights violations perpetrated during the period of the Apartheid regime. It served as a means of reckoning or catharsis for victims, and fostered peace-building.
• The TRC released the first five volumes of its report in October 1998, and the remaining two volumes of the report in March 2003.
• As a result of the TRC, the private sorrow and grief of tens of thousands was publicly acknowledged in an embracing and personalised way.
• Another form of acknowledgement emerged from the perpetrators themselves. They had to come forward openly in front of the television cameras, owning up to their crimes. Finally, there was acknowledgement by the whole country that these things happened and can happen again.
• It helped to understand some kind of significant pattern which enabled them to note its genesis and do the necessary to minimise any possibility of their recurrence.
Other examples of Truth Commissions
Chile’s National Commission for Truth and Reconciliation: In 1990, at the urging of non-governmental organisations, the president of Chile established a “National Commission for Truth and Reconciliation” to investigate violations committed over the previous 17 years of military rule. This commission worked for nine months and was able to thoroughly investigate each of the 3,400 cases submitted.
Commission on the Truth for El Salvador: In the case of El Salvador, the creation of the “Commission on the Truth for El Salvador” was written into the peace settlement ending the 12-year civil war in that country. The commission operated from July 1992 until March 1993. Given the fragile foundation of the El Salvador settlement and the highly polarised nature of the country, the truth commission did not include any Salvadorans. Instead, the UN appointed three highly respected international figures to the commission. The mandate granted the commission six months to complete its investigation and submit a report.
