It may seem odd to think that peace can be without justice, or justice without truth. But that may depend entirely on what one thinks justice should be.
For example, the likes of Winston Churchill opposed the Nuremberg trials after the Second World War and supported punishment for Nazi war criminals without trial. What they wanted was quick, retributive justice while the Nuremberg process was aligned with the theme of the slow, restorative justice of trials and tribunals. But in the decades to follow, the global gaze turned to another kind of justice as South Africa exemplified a model more focussed on seeking reconciliation than accountability.
It is the same model that featured in the concurring verdict part of the Supreme Court’s Article 370 order this week, with Justice SK Kaul recommending the need for a truth and reconciliation commission before “memory escapes”, for a collective telling of the truth about Jammu and Kashmir. Referring to rights abuses by state and non-state actors in J&K since the 1980s, the honourable judge pointed out that what is lacking “is a commonly accepted narrative of what happened”.
But, referring to South Africa’s truth and reconciliation commission which had looked into that country’s apartheid years, he said, as a word of “caution”, that the commission on Kashmir “must not turn into a criminal court” and should instead follow a “humanised and personalised process enabling people to share what they have been through uninhibitedly”.
This idea, which may lie in between political science and international criminal justice for legal experts, and has increasingly gained currency in states recovering from conflict, seems in tune with a Gandhian philosophy, and the pacifists who led South Africa’s truth and reconciliation process. But such thought has not governed the criminal justice system in India across its blood-spattered history post-Independence.
Be it the Punjab militancy, the Northeast insurgency, or the Pandit exodus, disappearances, killings, arbitrary detentions, custodial torture, pellet-induced visual impairments and mass graves in Kashmir, there have been thousands of cases of human rights abuses during conflicts in India in the last few decades. And those wounds continue to fester with many trials pending without verdict and investigations failing to take off.
And in an era where the judiciary, legislature, executive and the media have increasingly shielded the state, and when past judicial processes have not yielded much towards the reparation of the affected communities, can a truth and reconciliation commission actually live up to the task of nation building?
By the way, before the Centre even considers this commission, hawkish voices, including from the mainstream media, have already begun to interpret Justice Kaul’s recommendation as one that is only meant for one community from Kashmir.
Justice Kaul calls for setting up a "Truth and Reconciliation Commission" to address the persecution of Kashmiri Hindus. These are welcome words. But isn't it ironic that Justice Kaul and the now CJI Chadrachud both had once dismissed the demand to probe the Hindu genocide in J&K…
— Rahul Shivshankar (@RShivshankar) December 11, 2023
Meanwhile, political parties in Kashmir have underlined the importance of such a commission being independent. While the National Conference and People’s Conference said it had been their long-standing demand, among those who were more critical was the People’s Democratic Party, which said there was a void too big to fill for a commission.
But before proceeding, let’s look at the international experience of such panels, exemplified first by the apartheid commission in South Africa.
The silver linings in South Africa
In her 2001 book titled the Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, transitional justice expert Priscilla B Hayner listed the South Africa example as among the strongest commissions. But, she noted that “unfortunately, the commission did not often use the strong powers that it had at its disposal, and was sometimes criticised for holding the mission of reconciliation above that of finding the truth”.
“It employed its subpoena and search and seizure powers only a handful of times; to avoid upsetting various parties, the commission delayed issuing or decided not to issue subpoena or search orders against several key individuals or institutions, among them the headquarters of the South African Defence Force and the ANC, both of which were either slow (in the latter case) or resistant (in the former) to turn over requested information. The commission was also strongly criticised by human rights organisations for not issuing a subpoena against the minister of home affairs and Inkatha Freedom Party president Mangosuthu Buthelezi, a decision based largely on the commission’s fear of a possible violent reaction,” she wrote.
South African media, meanwhile, gave the commission’s hearings daily and prominent coverage as testimonies from over 21,000 victims and witnesses were recorded, and amnesty was granted to over 1,100 individuals.
This power to grant amnesty was challenged legally by a few families of the victims, but the South African Constitutional Court ruled in favour of the commission.
The government of President Thabo Mbeki subsequently invoked constitutional powers to pardon 33 convicted prisons, including several ANC and Pan-African Congress members who failed to get amnesty.
In Morocco, a son rummages through father’s record
It was the first ever truth commission in the Arab world, mandated with the task to look into rights abuses during the four-decade reign of King Hassan II in the constitutional monarchy. It was an era of widespread repression – commonly known as the “years of lead” – which began shortly after the country gained its independence from France in 1956.
Formed in 1999, the Equity and Reconciliation Commission, or IER, sent its final report to Hassan’s son and successor Mohammed VI in 2005. Seeking independence of the judiciary, the commission stressed the need for more reforms and the erosion of impunity for erring officials. While most of its recommended reforms are yet to be implemented, it managed to expedite the compensation process at a scale unprecedented in the country.
But despite its successes, and the media attention for its hearings, the IER faced its share of criticism for its limited investigative jurisdiction and the lack of criminal accountability.
In a comparative study of transitional justice in Africa, Fadoua Loudiy, the author of Transitional Justice and Human Rights in Morocco, wrote: “El Boukili, a member of the AMDH (Moroccan Association of Human Rights), argues that the main problem with the IER is that it was solely focused on the victims, not those responsible for the suffering of the victims. Thus because its mandate was restricted in terms of its scope, the IER was unable to get to the full truth about the years of lead. El Boukili maintains that this actually hindered reconciliation because many victims of the grave abuses committed during this period could simply not forgive nor forget unless those responsible for these atrocities were held criminally responsible.”
This was not accidental, but part of a deal negotiated between the monarchy and former political prisoners who agreed to participate in the IER hearings. “The fact that the IER’s scope was limited to victims is evidence that any truths that the state has been seeking through this process are bound to be one-sided and partial.”
Several other African nations, including Rwanda, Sierra Leone, and Liberia, have also established TRCs in the aftermath of civil wars and genocides. Rwanda’s Gacaca courts, a form of community justice, were pivotal in addressing the 1994 genocide, focusing on reconciliation and community healing.
But what about closer home, in Asia?
In Sri Lanka, the lack of a conducive environment, impunity for officials facing allegations of rights abuses; languishing trials and investigations into enforced disappearances and mass graves, and the failure of domestic institutions have contributed to mistrust surrounding the proposal to roll out a truth commission for victims of the civil war.
While President Ranil Wickremesinghe wants to set up a “South Africa style” panel, and his government has engaged with several other nations such as Japan and Switzerland besides the United Nations, the island nation is yet to float an official draft of a legislation to establish this commission. The government had earlier planned to clear this by August.
Since late 2022, Sri Lanka's leadership has discussed establishing the National Unity and Reconciliation Commission, which seems more like an effort to duck global pressure rather than to achieve actual justice, lacking in criminal accountability. What adds to suspicion is Wickremesinghe’s insistence that parallel investigations into rights abuses may hamper the work of this commission.
Meanwhile, in a joint statement in September, nine human rights bodies pointed out that truth commissions “should not be instituted as an alternative to criminal investigations and prosecutions aimed at establishing individual criminal responsibility for crimes under international law”.
These outfits included Amnesty International, Asian Forum for Human Rights and Development, Franciscans International, Front Line Defenders, Human Rights Watch, International Commission of Jurists, International Federation for Human Rights, International Working Group on Sri Lanka, and Sri Lanka Campaign.
Sri Lanka isn’t the only example from India’s neighbourhood.
Nepal’s Truth and Reconciliation Commission, established as a part of the country’s post-conflict transitional justice process, has also faced several challenges since its inception.
The commission, along with the Commission of Investigation on Enforced Disappeared Persons, was set up in 2015 to address human rights abuses committed during the 1996-2006 conflict. However, it has struggled to make substantial progress due to several reasons, including limited resources, inadequate funding, and internal challenges within the commission itself.
A proposed bill to amend the TRC Act has also faced criticism for its potential to grant de facto amnesty for serious human rights violations and for failing to align with international law, Supreme Court verdicts, and the Nepali Constitution.
The commission has received over 60,000 complaints, and according to reports, it had completed preliminary probes in less than 10 percent of these until 2019.
Latin America and Europe
In Latin America too, several countries have established TRCs in the wake of military dictatorships and civil wars. For instance, Argentina's National Commission on the Disappearance of Persons, established in 1983, investigated human rights abuses during the military dictatorship of 1976-1983. Similarly, Guatemala and El Salvador formed commissions following brutal civil wars, with a focus on uncovering mass atrocities committed against indigenous populations.
European countries like the former Yugoslavia have also experimented with forms of truth and reconciliation processes, often in conjunction with international bodies like the International Criminal Tribunal for the former Yugoslavia.
Back to Kashmir, with conflicting questions
In Kashmir, victims of human rights abuses often struggle to obtain legal relief due to various complex factors. The judicial process can be hampered by issues such as lack of access, security concerns, political influences, and the overarching atmosphere of unrest.
In such an environment, the success of a TRC hinges on several factors, such as its ability to operate independently, free from political manipulation, and its mandate to comprehensively address the grievances of all parties involved. The balance between political expediency and genuine reconciliation is delicate.
Can a truth commission serve unpalatable truths, free of any pressure about what the Indian story in Kashmir would look like before the international community?
Will the forgiveness that Justice Kaul spoke about in his verdict extend to security personnel accused of murders and rapes?
Will amnesty be only for officials, or also for Kashmiri militants (now defined as terrorists in all official communication and most mainstream media publications)?
What happens after the stories are told?
Who will be part of the panel?
Like South Africa, will political factors influence amnesty?
Or like Sri Lanka, will the government prioritise this process over other legal procedures pertaining to cases of human rights?
Speaking of human rights de facto and de jure in the erstwhile state, the J&K administration reportedly said last year that files pertaining to cases being handled by the erstwhile State Human Rights Commission have been locked up in a room after the panel was wound up in 2019 after the Centre’s decisions on August 5, 2019.
This year, Union minister Nityanand Rai told the Lok Sabha that the National Human Rights Commission is probing cases of rights abuses – but only those filed in the Union territory and not when J&K was a state. He said 1,164 cases were registered between October 1, 2019 and December 2022, of which 111 have been considered and closed, 368 have been disposed of with direction, 484 have been dismissed in limine, while compensation has been recommended in one case and 200 cases are pending for consideration.
From its establishment till March 2019, the SHRC had received 8,529 cases of alleged human rights violations, of which 7,725 had been dealt with. The panel made recommendations in 1,862 cases of killings, torture, custodial disappearance and other violations.
In 2016, a bench headed by then Chief Justice of India TS Thakur had criticised the Modi government for not setting up human rights commissions in Union territories. “Do you fancy that union territories are utopian ideals where there are no human rights violations…Do you expect people from other territories like Daman and Diu, Puducherry to come all the way to Delhi to fight their case before the National Human Rights Commission?” the CJI had asked the Centre.
Additionally, the state machinery of the BJP-governed India of today is far from the Indian state and officials who shaped the Universal Declaration of Human Rights. The UN has time and again underlined the alarming erosion of human rights at home. And Home Minister Amit Shah has clarified what he thinks of it, saying that “Western standards” of human rights cannot be “blindly applied” to India. Unsurprisingly, he has also batted for the human rights of security forces in the past.
Now, if the government does pay heed to Justice Kaul’s suggestion, will Kashmir’s truth end up like its normalcy?
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