Articles

Honourable members of fraternity and friends,
It is an honour for me to be with you today.  All India Kashmir Samaj has provided me this opportunity to share with you some ideas on matters pertaining to the community. Thanks to AIKS and particularly to its President, Shri Moti Kaul.
A.   Status
We the Kashmiri Hindus (Pandits) say we are a religious minority in Kashmir. But the State Commission on Minorities, guided by government policy, does snot recognize us a minority.
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 cannot accrue to us.
If this is a valid line of argumentation 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.
Clubbing Kashmir 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.”
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?
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.
But experience gained by Human Rights specialists at the UN and international legal fraternity about new minority groups emerging owing to various factors like rising crescendo of Pan-nationalism, sub-nationalism, aggressive self-determination, assertion of trans-border ethnic, linguistic and religious identity or harsh diktats of history became catalyst to extended definition of a “minority” including that of “reverse minority” as in the case of Kashmir Pandits.
The Minority Declaration is intended to contribute to the realization of the principles of the Charter of the United Nations and those of the human rights instruments adopted at the universal or regional level. The Declaration is inspired by Article 27 of the International Covenant on Civil and Political Rights. The promotion and protection of rights of minorities should contribute to the political and social stability of the states in which minorities live, and to the strengthening of friendship and co-operation among peoples and states.
One of the foundational principles of human rights is that of non-discrimination between individuals. The state is obliged to respect and ensure to every person within its territory and subject to its jurisdiction, without discrimination on any ground including race, ethnicity, religion or national origin, the rights contained in the instruments to which that state is a party.
Faced with the threat of losing social and cultural identity as it is,  the religious minority of Kashmiri Pandits should justifiably come under the focus of following stipulations of the UN Declaration on Rights of Minorities adopted by UN General Assembly vide Resolution 1992/4 of 20 July 1992.
Art. 1.1. Casts a duty on the state to protect the existence and the ethnic, cultural, religious, linguistic identity of the minorities within their respective territories, and shall encourage conditions for the promotion of that identity.
Art. 1.2 Calls upon the state to adopt appropriate legislative and other measures to achieve those ends.
Art. 2.3 Reserves a right for the person belonging to the minorities to participate in the decision making process at national and appropriate regional levels, where in they live.
B.  Displacement
Jammu and Kashmir, a Muslim majority state, is the only state out of 28 federating units of the Indian Union where ethnic cleansing of a bare 3 per cent Hindu minority happened in 1990 at the hands of externally sponsored and locally abetted armed insurgents.
In 1990, the popularly elected Congress – NC coalition Government of Jammu and Kashmir failed to protect life and property of this religious minority against the rise of externally sponsored and locally abetted lawless armed insurgents. Instead of facing dire threat to the stability of the state with courage and determination, the then popularly elected government quit the office and abandoned the people, particularly the defenseless minority, to the rapacity of insurgents.  In doing so, 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 responsibility of a democratic arrangement. It is also the first article of the UN Charter on Human Rights.
This explains why the governments at the Centre and in the State officially categorized them as “migrants” and not with a nomenclature warranted by their exodus, viz. Internally Displaced Persons. The National Human Rights Commission declined to recognize us as “Internally Displaced Persons”
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.
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.
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:
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.
A careful study of this official document of the Government of India brings out  eye-opening recognitions 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 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:
(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 candid statement of facts, (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.[7]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.[8]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.
C:  Return
Exodus is not migration. States do not offer return and rehabilitation packages to “migrants”. Those to whom it is offered are IDPs.  Therefore their return is governed by established norms of return of IDPs set 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 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 thrust. The right question is not how many families will return: the right question is has the government 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 appeasement syndrome.
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.
D: Relief
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.. 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.
E: Rehabilitation
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 refouled and we have the right to ask for rehabilitation compactly in the land of our origin.  We bring to mind the idea of a twin-city floated by one of the mainstream political parties of the state when it was in power in recent past. While prioritized compact rehabilitation could be an option, ghettoization of the community in clusters and shanties is unacceptable.

Friends I have taken lot of your time and I have perhaps taxed your patience. But it is necessary that we call a spade by it proper name just because we need to bring awareness to the community members how we should respond to the challenges before us. I thank you all for patient hearing.

[1] (No. CH/98/NCM dated 12 January 1999)

[2] (E/CN: 4/1998/53/Add.2. page 5)

[3] (E/CN.4/1998/53/Add.1. p.5)

[4] Human Rights in Kashmir: Report of A Mission, ICJ, 1995, published in Zurich, p. 68

[5] Ibid. P. 68

[6] (E/CN.4/1998/53/Add.1. p. 18)

[7] CERD/C/247/Add.1, See also E/CN.4/1998/53/Add.1 p. 17.

[8] See Para 9 of E/CN.4/2003/86/Add.6. p. 6