Very little was said about the 4.5 lakh Kashmiri Pandits who got displaced from the Valley with the advent of separatist militancy, possibly because they were not "such a big electorate" as to invite "political intervention", former Supreme Court judge Sanjay Kishan Kaul has said.
Justice Kaul, who was part of the bench which upheld the abrogation of Article 370 in the erstwhile State of Jammu and Kashmir, and recommended setting up an "impartial truth and reconciliation commission" to probe and report on human rights violations by both state and non-state actors since the 1980s, said people of different communities lived in unity before insurgency shattered the peace and he was at a loss to comprehend how the situation "slowly degenerated".
A Kashmiri Pandit himself, Justice Kaul feels, it is time now for the people to move forward, after more than 30 years of unbridled violence.
In an interview with PTI on December 29, Justice Kaul spoke about the unanimous verdict of the five-judge constitution bench headed by Chief Justice D Y Chandrachud which upheld the Centre's decision to abrogate Article 370 of the Constitution that bestowed special status on Jammu and Kashmir.
"It was a unanimous verdict which means all of us must have thought that this is the correct path to follow. Of course, every judgement, especially every important judgement, will generate debates. There will be people who will have a counter view to it. That does not affect me really because a judgment is an opinion of a situation and we should not be over-sensitive about it," he said.
He lamented the silence around the displacement of the minority Kashmiri Pandit community in the Muslim majority state.
"Earlier, security concerns were not really a problem. But then the degeneration reached a stage where more than four-and-half lakh people of one community from their own country were displaced from their place. I thought very little was said about that.
"Maybe they were not such a big electorate to invite that kind of political intervention and then the scenario deteriorated to such an extent that the Army had to be called in because the very territorial integrity of the country was being endangered...," he said.
About his recommendation for settting up a truth and reconciliation commission, Justice Kaul said it was a "good method" to acknowledge that some wrong had happened, adding that there was a whole generation of people in the region that did not see a "better time".
"The question is do we keep not tackling that issue? Do we let that thing still hurt people where it hurts? I thought it was a good method of acknowledging that something wrong has happened and what is that wrong that has happened. If you do that, you should move forward. 30 years is a long time. You have to move forward," he said.
"It is not easy for people who left 30 years ago to come back. The security environment should be such that those people can get back to the places where they lived, not permanently, which is unlikely to happen now after so much time, but to have a place as people travel for occupation elsewhere, and maintain their ancestral homes. My personal belief is that merely ghettoization of communities in some areas may not be able to help. Not many people will come out like that," he added.
He was referring to the government's move to settle Kashmiri Pandits in highly-protected zones together away from places where they once lived.
The commission, Justice Kaul said, will endeavour to heal those who have gone through troubled times.
"What has persuaded me to write that part (on the commission) begins with the beginning where I have set out the history of Kashmir, the assimilation, and how it evolved and how people were living there post partition, which is a traumatic period, and even Gandhiji thought that Kashmir was a place where semblance of unity prevailed," he said.
Justice Kaul also felt the encouragement to tourism, which Kashmir is getting now, with tourists feeling "more confident" while flocking the verdant Valley, was helping people, wracked by decades of violence, get back on their feet economically.
"I feel the situation is changing. I personally was able to stay in my house after 34 years. So, now this time, when I went in summer, the people (were) moving around, there was tourism which certainly gave a fillip to everything because everything is linked to tourism in Kashmir," he said.
"So the encouragement to tourism and its expansion has helped people in getting economic prosperity and tourists also feel more confident of going there. Last year, the national legal service authority conference was held in Kashmir. The object is also to showcase that this is a part of our country. The other people, the judiciary also comes and sees what the situation is. The apprehension is removed, and I believe that things should improve," Justice Kaul said.
‘Judges be allowed to decide on taking up post-retirement assignments’
With opinions sharply divided over whether former judges of constitutional courts should take up post-retirement government assignments, ex-judge of the Supreme Court Sanjay Kishan Kaul has expressed the view that those offered such employment should be allowed to take a call.
“Leave it to the constitutional court judge to decide what he wants to do,” Justice Kaul said.
“There are two kinds of posts. One is tribunals where somebody has to man the tribunals. People accept such assignments. There is nothing wrong in it because that is how it has to happen,” he said.
An apex court bench headed by Justice Kaul had in September 2023 dismissed a public interest litigation seeking a mandatory cooling-off period of two years for the retired judges before they accept such assignments. The bench had said it is not for the apex court to either stop a retired judge from accepting a post-retirement offer or to direct Parliament to frame a specific law to that effect.
The bench was hearing a plea filed by the Bombay Lawyers Association which voiced concern over the ramifications such appointments could have for an independent judiciary.
“I feel a person who has served for so many years would make a decision of his own as to what is to be done. The fact that I do not want to take it does not mean that somebody (else) should not...So I will leave it to the judge to decide,” Justice Kaul said during the interview with PTI.
While there is no specific rule barring judges from accepting such positions after retirement, the 14th Law Commission, headed by MC Setalvad, had recommended that judges should not take up post-retirement jobs from the government.
Such assignments include appointment to tribunals, human rights commissions, government-appointed ad hoc commissions, court-appointed committees, water tribunals, lokayukta etc.
While several judges of the apex court like former CJIs JS Khehar, RM Lodha and SH Kapadia declared they will not accept such post-retirement assignments, the nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha, barely months after his retirement, surprised many.
Justice Gogoi had presided over benches that handled several important cases, including the Ramjanmabhoomi-Babri Masjid land title dispute.
The appointment of former CJI P Sathasivam as the Kerala governor in 2014 had also raised several eyebrows.
