The Kashmiri Pandits: LACUNAE IN THE CURRENT LEGAL POSITION

Mr. V. K. Krishna Menon’s Marathon Speech Lasting For Eight Hours On Kashmir At The United Nations Security Council’s Seven Hundred And Sixty Second Meeting On 23rd January 1957 used the word ‘situation’….and therein, Mr. Menon asserted that India had taken up with the UN a ‘situation’ and not a dispute. This can be ascertained from the following excerpt…..

“Under Article 35 of this Charter of the United Nations {- which means that we did not come here with a request for drastic action as we were entitled to do-}‘any Member may bring any situation’-and I emphasize this word “situation” for we did not bring a dispute but a situation- whose continuance is likely to endanger the maintenance of international peace and security to the attention of the Security Council. Such a situation now exists between India and Pakistan…”

It is appalling to see that although the status of the persons of the Kashmiri Pandit Community in the State of Jammu & Kashmir has been of a religious minority, but it has not been recognised as such. Demographically, they are in majority in India (Hindus), but in their state, they originally accounted for only 7-9% of the total population in the Kashmir Valley, making them the religious minorities in the state. As per the Constitution of India and the judicial dicta, the position of law is such that the religious minorities should be confined to those in minority in the entire nation or those religious minorities who have maintained a separate identity from the majority, namely the Hindus. It is humbly submitted that this proposition seems problematic to me because if it were so, then there would be no effective provision for groups who are in minority in the state, but in majority at the national level, and yet are facing persecution by the virtue of them being in minority in the state. The reality of the events should not be defeated by mere technicality of arriving at the minority population.

The fact is that they being a majority group in India did not evidently be of any avail to them enough during their crisis situation in the late 1980s. They were persecuted because they belonged to a different religion than the dominant one, which is Islam, and as a result did not fall into the scheme of their political, besides other ambitions. It must be understood that under Article 370, Jammu & Kashmir has a special status and there is virtually no inter-mingling of the Centre or any other state in the workings of the State. In fact, it is the only state with which the Instrument of Accession when signed, contained certain provisions which alienated it from the other states, to the benefit of itself. An example being that the Legislations passed by the Parliament have to first be ratified by the State Assembly.

Presently, there are six states and Union Territories (Jammu & Kashmir, Lakshadweep, Mizoram, Meghalaya, Nagaland and Punjab) where the “national majority” that is, Hindus, are in fact in a minority. Schemes designed nationally for “minorities” as now understood, that is Muslims, Christians, Sikhs, Buddhists and Parsees, are not applicable in these states. That is, schemes meant for Muslims nationally do not apply to Muslims living in J&K, for example.

Comparing their situation to any other religious minority on the National Level, say for example, Islam itself or Christianity, we cannot differentiate the treatment that they received at the hands of the majority, because they have been harmed like other minorities have been, nationwide. I wish to assert that one cannot shun the suffering of such a group because of the reason of them falling in the previous category of not being national minorities.

It is in this background that the Constitutional (103rd Amendment) Bill 2004 was introduced in the monsoon session of Parliament. According to the proposed law; the UPA Government is planning an amendment to the Constitution that seeks to redefine the term “minority”. If the Bill is legislated, minority status will be defined on the basis of population at the state rather than national level. In essence, this will be recognition of the fact that such religious minorities belonging to a state suffer Cultural Imperialism as Iris Marion Young would put it, wherein, the community suffers the oppression of systematic violence, another face of oppression.

In this wake, when nothing concrete has surfaced, it becomes important to evaluate as to what is the current legal status of the Pandits. The persons from the Kashmiri Pandit Community are often referred to as “Migrants” or “Refugees”. Such a terminology seems problematic in the background of the norms and criteria as set by the 1951 Refugee Convention (Article 1). The reason, in simple terms is that, the status and rights of refugees can be accorded to those persons who, due to uncontrolled and adverse circumstances crossed an internationally recognized border, which they evidently, have not crossed.

A kind of a vacuum is created where there is no definitive set of principles to be followed in a situation like this, though their basic rights are the same as any other minority group.

It seems plausible, in such a situation, to situate them into the category of the Internally Displaced Persons. The Guiding Principles on IDPs, given by the United Nations take within their ambit the rights of the persons facing displacement in their country due to armed conflicts, generalized violence, violations of human rights or natural or man-made disasters. This seems to be the most appropriately fitting description to the KPs presently. As per the Internal Displacement Monitoring Centre, IDMC, in its report on the Internally Displaced Persons in India, the most prominent internally displaced group of persons in India are- The Kashmiri Pandits, The Internally Displaced in Assam, Tripura and Manipur (North-East), Internally Displaced in West Bengal, Internally Displaced in Central India, Displaced persons in Gujarat (Post-Godhra), Displacement of Dalits and the Development Induced Displacement stricken persons. All except last two being due to Violence, either communal or regional.

Thus, the appeal to every KP is to push for the IDP status for the community even if the ‘minority’ status in the State is awaited. Hopefully, we shall be able to emerge victorious out of the confines of being labeled as ‘Refugees’ in our own country.

— Published in the July, 2009 edition of Koshur Samachar