Revisit Policy

Revisit Policy vis-a-vis Kashmiri Pandits

By S.M. Pandit

January 2011

There have been three significant judgments or interventions by three different courts vis-à-vis Kashmiri migrants recently. The first judgment was delivered by The Delhi High Court. The judgment was delivered on a bunch of petitions filed by 24 central government employees, all Kashmiri Pandits, who were facing eviction from govt. accommodation after their retirement. In the landmark judgment, Justice Gita Mittal not only restrained the govt. from evicting these from the accommodation till alternative residence is provided in the capital but also directed the govt. to pay a cost of Rs 25000to each of the petitioners. The court described ‘the right to shelter’ a fundamental right. “Petitioners may be compelled to return to the violent situation where from they were forced to flee. Forcing the petitioners to return to the area where they were persecuted violates the principles of International Law forbidding the expulsion of a refugee into an area where such person might be again subjected to persecution,” the court observed. Pulling up the government, the High Court said, “Instead of facilitating the resettlement and rehabilitation of the petitioners who are Internally Displaced Persons as per declared policy, they have arbitrarily been exposed to the additional trauma of the threat of forcible evictions and the uncertainty of seeking the adjudication by pursuing the litigation.” The court further described the case a ‘testimony to events which lead to unprecedented ethnic cleansing of a minority community from the Kashmir valley on account of the failure of the state to protect them and their property from violence, who as a result. Were rendered homeless.’

The second intervention came from the J&K High Court. In the given case,  the court directed the Divisional Commissioner, Kashmir to protect the property of the 200 year old Bajrang Dev Baba Dharam Dass Mandir Sathoo Barbar Shah, Srinagar. In the case, Justice Sunil Hali observed, “It transpires that the property of Bajrang Dev Baba Dharam Dass Mandir, Sathoo Barbar Shah, Srinagar is entangled in various litigations and is being encroached upon. It is necessary to pass some interim direction in order to preserve and protect the property of the Mandir. It will be appropriate and in the public interest to ensure that the property of the Mandir is preserved and protected from encroachments and illegal transfers.”

The third direction came from the Apex Court in a petition filed by All India Kashmiri Samaj and others in 2006. In the instant case, the Supreme Court sought response from the J&K government on the Rs1, 618 crore special package. “Where will the people who want to go will stay? Now their properties have been sold or auctioned. There are number of petitions pending in the High Court. How will they go?” the bench headed by Chief Justice S H Kapadia observed. In response to the enquiry, Additional Solicitor General Indra Jaising said the properties auctioned between 1990 to 1997 would be declared “illegal” and would be “restored.” “All those auctions are illegal and they will be cancelled,” she said.

Without any prejudice to the court verdicts, many things come to one’s mind. It has now been proved beyond doubt that the minority Hindu community of Kashmir faced persecution that resulted into their ethnic cleansing. The successive governments failed to prevent the persecution and the exodus. The administration also failed miserably to protect their properties, movable or immovable, in the valley. As a result, their properties were destroyed, occupied and encroached upon. In most of the cases, the representations by the aggrieved persons were consigned to the dustbins. It resulted in the distress sale of the property at through away prices. There are instances were the concerned authorities advised or intimidated the displaced persons to sell their properties to the people who had illegally occupied or encroached upon these properties. What is the most astonishing part of the story is the fact that the state administration itself contributed to the occupation of the migrants’ properties. Not only the agricultural land, orchards and residential land of them but even the cremation grounds were acquired by the government in the name of developing public utilities without considering its long term political implications. The owners are still to receive the compensation or were given very low rates as compared to the marked value. Though the State Government enacted a law in 1997 to prevent the distress sale and made the concerned DCs the custodians of the Migrant Property, but the situation has not changed as the concerned authorities are reluctant to act. Now as the Additional Solicitor General has informed the Apex Court that the properties auctioned between 1990&1997 are illegal and will be restored, the action in this direction will be a major CBM with positive political implications.

While the state and central governments failed to prevent the persecution and exodus, their indifferent attitude compounded the miseries of the community even in exile. The court interventions bear testimony to the fact that the Displaced persons have to knock the doors of the judiciary even for the matters that could be solved by the administration with ease. The Courts have come to the rescue of the exiled community at several times.

Unfortunately, at times the court verdicts are interpreted in a way to put the community to disadvantage.

To add to all this, the governments try to trivialize the exodus. The welfare and the rehabilitation of the exiled community in their ‘Homeland’ should have been the priority of the state and the central governments. The issue is being handled casually. The PM’s so-called Return Package is a reflection of this approach. There is nothing in the package that guarantees the political empowerment of the community and protection from further persecution and victimisation. The conditions attached to the ‘Employment Package’ give an insight how the state government has turned it into a trap taking advantage of the distress of the community youth.

To conclude, it is a national shame that the rehabilitation of the people who waged war against the nation is the priority of the state. The nationalistic community cannot be forced to remain hostage to the whims of jehadi and communal forces for generations together. The Indian state and the political class should revisit policy vis-a-vis Kashmiri Pandits and take cognizance of the geo-political aspirations of the community. Rehabilitation of the Kashmiri Hindus should be national issue and flagship of the policy.