he Hindu religious minority of Kashmir Valley, known as Pandits formed nearly 07 per cent of the total population of Kashmir province at the time of the accession of Jammu and Kashmir State to the Indian Union in October 1947. Owing to discriminatory policies of successive regimes in J&K ever since, a good percentage of the Pandits was forced to leave their homeland and seek livelihood in other parts of the country. As a result of eruption of armed insurgency in late 1989-90, Theo-fascists made the Pandits their selective targets killing more than a thousand innocent members within a couple of months of insurgency. Their objective was to enforce ethnic cleansing of Kashmiri Pandits from the Valley in order to pave the way for Islamic homogenization with sharia replacing secular democratic dispensation. Radical and Wahhabi Islamic ideologues in Saudi Arabia and Pakistan, who have sponsored the jihadi terror world over, consider Kashmir integral to the concept of Islamic Caliphate. The Pandits were considered a symbol of secularist presence in Kashmir. Religious extremists decided to efface this symbol once for all because it obstructed their scheme of things.
In 1990, the popularly elected Congress-NC coalition government of Jammu and Kashmiri lacked will and determination to protect life and property of this religious minority against lawless Islamic brigades. Not only that, instead meeting the threat of subversion and disintegration of the state, and dire threat to law and order, the then popularly elected government decided not to resist the uprising and quit the office abandoning the people, particularly the defenseless minority, to armed Islamic insurgents. Wittingly it facilitated space for the insurgents to indulge freely in acts of pogroms and violence against the Pandit minority. Protection of life is the foremost constitutional and moral duty of any government. It is also the first article of the UN Charter on Human Rights.
Abandoned by the popular government, surrounded by an atmosphere of unrelenting threat to life and honour relayed through loudspeakers from mosque tops and in vernacular media, targeted by the gun-wielding marauders and ignored by the national press and mainstream political parties, the minuscule religious minority was left with no option but to abandon, albeit most unwillingly, their homes and hearths. This led to their mass exodus to unfamiliar places and environs. By April 1990, almost 99 per cent of their people left the Valley for some safer places.
The Government of India, in its official note to the International Commission of Jurists, (ICJ) --- an international NGO of repute--communicated in writing the story of ethnic cleansing and exodus of the Pandits. It is fully reproduced in its published report on Kashmir, 1995.
Extirpated people fled to the other region of the State, Jammu, and other places in the country like Delhi, Bombay, Chandigarh etc. They did not cross the borders of the Indian Union but remained as refugees within the confines of their own country. 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 under:
- 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).
Section A paragraph 9 of the Report of the representative of the UN Secretary General to the Commission of Human Rights states:
- 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. page 5)
In the matter of “ethnic cleansing” of the Pandits of Kashmir, a situation which the Government of India has conceded in its report to the ICJ, (to which allusion has been made above), the report of the representative of the Secretary General observes in paragraph 73:
- Ethnic cleansing” is never admissible. The Committee on the Elimination of Racial Discrimination in its concluding observations on the report of the Republic of Bosnia and Herzegovina (CERD/C/247/Add. 1), condemned “ethnic cleansing” because it constitutes” a grave violation of all basic principles underlying the international convention on the Elimination of All forms of Racial Discrimination.” (E/CN.4/1998/53/Add. 1 page 17).
We have already stated that by April 1990 over a thousand members of the Pandit community had been gunned down by the armed Islamists. In regard to genocide, the report of the representative of the Secretary General states in paragraph 74 as follows:
- Certain forms of forced removal, in particular in the context of “ethnic 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, as discussed in detail in the Compilation and analysis of legal Norms (para 73-74). 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 ;
(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 (E/CN.4/1998/3/Add.1 page 18).
Despite this ground reality, the Government of India has, so far, refused to declare the Pandits of Kashmir as IDPs. Indian National Human Rights Commission seems to toe the policy of the government. We do understand that response to internal displacement worldwide, frequently resulting from civil war, is, in the words of the representative of the UN Secretary General, “often constrained by ruptured sense of national solidarity and identity.” This could be a reason for the Government of India’s reluctance to declare the Pandits as IDPs in terms of the UNHRC’s definition. But apart from this, the Government of India might be averse to the involvement of a UN agency or its nominee or reputed human rights agencies like Norwegian Refugee Council (NRC) or any other of high credibility to address within its competence and legal jurisdiction the human rights violations of the internally displaced persons from 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 Government of India to obstruct, as it has hitherto done, the affected IDPs from enjoying the rights and privileges that 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 segregated and deliberately kept outside the ambit of Emergency Relief Coordinator (ERC) designated by the UN Secretary-General as the UN’s focal point on internally displaced persons. (See UNHRC Resolution para 9 of E/CN.4/2003/86/Add. 6. page 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.
It is a matter of regret that neither the Government of India nor the Government of the Jammu and Kashmir State (the State in which ethnic cleansing and genocide of a religious minority have occurred and where from the mass exodus of the community members has taken place) has instituted a Commission of Inquiry into the rise of religion-based terrorism allegedly with full connivance of sections of local authorities, political groups and segments of majority community of Kashmir.
Five major massacres of the members of the community’s residual members in Kashmir and adjoining areas have taken place during last one decade and a half. No inquiry into the rise of armed insurgency in Kashmir in 1990, recurrent massacres of the minority community members, its full scale exodus, and vandalizing of their immoveable property has been instituted by either the state or the union government nor has even an official statement been issued on the floor of the Legislative Assembly in regard to these pogroms. This shows the State and the Union government’s lack of concern about a blatant case of human rights violations.
Now there is much talk about the return and resettlement of the IDPs. The talk has become a cliché with the State and the Central government and some pseudo-human rights organizations. Observers feel that real ground situation does not support practicability of any such plan at least for the near future. We expect the Indian authorities to be in full knowledge of the observations, recommendations and resolutions of the UN, the Human Rights Commission and other UN subsidiary bodies in the matter of rights of Internally Displaced Persons.
In the context of the return of Pandit religious minority, the ground situation and its harsh realities are decisive factors. Indian security forces are locked in heroic combat against the committed jihadis and Islamic suicide squads who strike suddenly and at vulnerable places or soft targets. Most of Kashmiri Muslim bureaucracy and administrative structure abhors broad nationalist and secular orientation. A senior minister of Mufti cabinet was indicted by security agencies for known involvement in the Akshardham temple attack but he has been cleared by Mufti and given a "healing touch" by restoring him to his cabinet post. Mattan and Khirbhawani, the Hindu religious sites in the Valley, are being projected as future habitats of the exiled Pandits. This is not for any real love of the minority. Mattan is the constituency of Mufti himself and Khirbhawani is the constituency of Qazi Afzal who was a cabinet rank minister in Mufti government.
He had no qualms of conscience in publicly announcing that he won election through the support of militants. Millions of rupees officially earmarked for the rehabilitation of Pandit IDPs are actually spent to bolster vote bank syndrome of these two constituencies.
There is little sense in making Hindu religious places in the valley as focal point for their concentration. Are the exiled people to become mendicants and monks at their shrines or are they to be activated as equal partners in our nation’s political and social construct?
In these conditions, return of the IDPs becomes a secondary issue. The primary issue is of reversing the Illumination of Kashmir. It is re-establishing and reinforcing the primacy of secular democratic dispensation. It is providing constitutional and institutional cover to physical security. It is recognition of the right of the minority group to become partner in nation-building process. It is re-interpretation of Article 370 of the Indian Constitution in the light of ongoing jihad. Above all, it is recognizing the sacrifices made by the community first as nuts and bolts of freedom movement, then as sufferers of discrimination and finally as the victims of genocide and ethnic cleansing.
It is moral, legal, administrative, constitutional and humanistic duty of the Government of Indian Union and the Indian civil society to advise state authorities to desist from employing wearing away tactics in the case of ethnically cleansed people. The report of the representative of the Secretary- General on IDPs, the Special Rapporteur on Minorities, and also of the Chairman of Working Group on Minorities –-- the important subsidiary of the UN Commission on Human Rights that has defined the Pandits as a clear example of “reverse minority"---should form the basis of any blueprint for Pandit return. The blueprint has to be implemented only when de-communalization of Kashmir along with wiping out terrorism is brought about in letter and in spirit. Whether the Indian State has the capacity of transforming violent and aggressive Kashmiri jihadi activism into peaceful coexistence among the people of different faiths through the current policy of appeasement and concessions is the crux of the problem. So far the Indian experiment in Kashmir has yielded only the extirpation of the minuscule Hindu population of the State and the collapse of Indian projection of Kashmir as its secular symbol. New Delhi will have to redefine its secularist prognosis. Principle 28 of the Guiding Principles in Section V relating to Return, Resettlement and Reintegration of the IDPs' states:
- Competent authorities have the primary duty and responsibility to establish conditions, as well as a provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.
- Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration. ((E/CN.4/1998/53/Add. 2. page 14)
From this principle, the following inferences become self explanatory.
- The IDPs will not be coerced into return. Return will be their free choice.
- It is the responsibility of the State authorities to care for their "return, resettlement and reintegration"
- The returnees have the freedom of resettling in their homes or places of habitual residence, or to resettle voluntarily in another part of the country/state.
- Internally displaced persons will be involved actively in the decision of planning their return, resettlement and reintegration.
In the light of these inferences, it is logical if the internally displaced Kashmiri Pandits are demanding concentrated resettlement in one part of the Kashmir valley. This is what the right to freedom of movement and the right to freedom of resettlement embody. These being the human rights cannot be denied. Again there is full justification for the Pandit IDPs to ask for adequate political empowerment and full participation in the decision making and planning process in the State. This is their constitutional, political and human right. Additionally, the right to compensation is equally important as substantiated in the Guiding Principles.
Ultimately, the Pandits have to return to the Valley. Ultimately secularist dispensation has to be the basic philosophy of Indian nation. But this return is not an ordinary one. It is the return of the ethnically cleansed minority. It is the return of the indigenous people to their homeland. It is the return of a religious minority, which has been persecuted by the majority community. It is the return of a community abandoned by the democratically elected government. It is the return of a community portrayed by the Indian State as its secularist model in Kashmir. Naturally, return, rehabilitation and re-integration of this community has to be under very clear terms and conditions. Its survival, development, integration and future concerns have to be insulated through constitutional and institutional guarantees in the light of re-interpretation of Article 370 of the Constitution of India.
In this connection some suggestions could be made:
The Union Government constitutes a Commission of Inquiry with the following clear terms of reference:
(a) Probe the causes of the rise of extremist religion-based armed insurgency in Kashmir in 1990
(b) Probe the causes and events of selective killings of Pandits followed by their ethnic cleansing in 1989-90.
The report of the inquiry into 1986 Anantnag attacks on Pandits should also be made public. Constituting this commission is essential for preventing recurrence of communal pogroms in future and also for strengthening secular democracy of India. It will pave the way for the return of the IDPs. It must be understood that return of an ethnically cleansed minority to its homeland essentially depends not only on the quantum of security provided by the government but also in reversing the factors which led to ethnic-cleansing. No amount of rhetoric can be a substitute.