KASHMIRI PANDITS: VALLEY’S FORGOTTEN CHILDREN

INTRODUCTION

If we look at the map of India, cradled in the lap of nature, Kashmir captures within its territory the quintessence of beauty and all elements that poetry demands of nature, awesome serenity and wild profusion of colours is not just enough to say that Kashmir is undoubtedly Heaven on earth. But as the wheel of time revolved, the militancy and cross border terrorism somewhat bruised its face and left unending wounds. The intellectual community of Kashmiri Pandits was forced to flee, abandon their houses due to the well planned and executed mayhem. This work tries to explore various legal and political aspects of this human tragedy. In other words this paper highlights the impact of this problem on the basic civil and political rights, socio-economic rights, cultural and religious rights of the community.  An attempt is made to study what hope national and international legal regimes can offer to the Kashmiri Pandits. The jurisprudence of issues like personality, individual fundamental rights and community rights, issues regarding individual and community identity as developed with in Indian legal system with constitution have been discussed at its focal point and also by the international legal regime with UN charter and Universal Declaration of Human Rights as its centre of gravity. 

Hegel has said that a human being is a mere abstract entity if his/her will does not get reflected in the form of his/her possessions, his/her relations, his/her land, and off course his/her mother land. This  paper discusses in action  the significance of ‘homeliness’ dovetails with the consideration of the location . Hegel’s theory of action mediates the sections ‘Abstract Right’, which in a way means that the social fabric and values were justified in themselves, as they dictate the role of social existence of a person in that sphere To be ‘at home’ in one’s social fabric is to recognize one’s rights and duties as one’s own and rational and this requires the capacity of doing or being otherwise. But when one is forcefully dragged out of one’s native place, it is here when rights and duties go dormant. Moreover Hegel also emphasis on the free will concept which gets reflects by person’s possession, relations or even homeland. That means it’s a free will of a person to accept or reject a place as his homeland, a land that makes him secure, gives him social anchor and roots him. In case of Kashmiri Pandit community, the same applies. They were in the valley with their own free will, but exodus gave them a feeling of denial, deprivation and discrimination. This is mounted in the concept of homeland. The longer a community has made a place its abode and the wider and deeper it takes roots, the stronger are its bonds and commitments to that place and the greater is the resolve to retain it and preserve its integrity. Over a period of generations, the community builds physical, emotional and spiritual relationship with that region. Just as a home gives a sense of belonging to an individual so a Homeland generates a feeling of roots, a sense of identity and an umbrella of security to its people. The two are inseparable and the relationship is sanctified by the sacrifices of the people, affirmed by history and hallowed by time as in case of the Kashmiri Pandits.

THE GREATER LOSS

 It hardly needs being dilated upon as to why the search for identity is basic to an individual. No one, including people whose sense of individuality is acute, can live by himself without being anchored to a group which lends him a station and fortifies his sense of belongingness. We are basic human beings and have an urge to be acknowledged as a social unit and to share common fate of society.[1]

When we explore the concept of social unit , the socio , economic and cultural rights become an integral part of it. Civil rights advocate about individual development and, economic, social and cultural rights advocate for holistic interest of marginalized class, ethnicity and those with different cultural identity. Therefore, there requires proper homework for institutional development of such rights. Both of these rights are said as supplementary to one another therefore, achievement of one right can be possible only with existence of another. Also if we ponder  The Universal Declaration of Human Rights in its beginning has ensured the place for basic rights and life with dignity.  Human rights jurisprudence emphasizes to enable human rights country, time and situation oriented. The fact of human rights is that they are entitled to human as natural esteem. The rights not only protect anyone's individual interest, but also support for the development of society, community and country. At the present changing situation, all groups have been raising their voices for recognition, identity and equality. Whatever demands and subjects they have been fighting for, the common characteristics of their demands are human rights. Whether the voice is raised for equality or for self-recognition and human dignity or political inclusion, if all issues can be incorporated on human rights perspectives, then definitely, the state can settle current transitional political economy comfortably; no one will disagree with it.

ECONOMIC SOCIO CULTURAL RIGHTS IN LIGHT OF HUMAN RIGHTS

Real protection of human rights cannot be done by the culture which provides protection to one right but remains silence on other rights. All rights should be protected at the same time. In totality, protection of economic, social and cultural rights particularly can support in real practice of political rights, elimination of all forms of discrimination, creation of citizen's faith and believe towards the state and maintain them, for conflict transformation, positive peace building and institutional development of democracy. By using a human rights framework that incorporates economic, social and cultural rights to attain goals. ESC rights, such as the right to an adequate standard of living or the right to work, are not generally seen as rights, but rather as benefits given by the state. They are also commonly viewed as aspirations that the state would one day like to fulfil. The human rights framework radically alters this perception by presenting ESC rights as obligations of the state. Indeed, the violation of ESC rights results in identifiable instances of discrimination and the denial of simple human dignity.

SOCIAL ENGINEERING

Roscoe pound’s concept of Social Engineering tried to accelerate the process of social ordering by making all efforts to avoid conflicts of individuals in the society. So in order to maintain harmonious balance   between private interest, public interest and social interest, Pound postulated certain assumptions to avoid conflict of interest. He assumed that in  a civilized society  men must be able to assume that others will commit no intentional aggression upon them. This theory holds good when applied to Kashmiri pundits. Their rights in the valley were infringed followed by exodus and had there been no internal aggression on the domain of their ESC   rights, there would have been no conflict and no turmoil. In the light of above, the plight of Pandits can be illustrated and the impact of exodus on their life can be justified.

The practice has shown that social and economic rights have been kept under state's directing principles stating for the sake of limited means and resources. Such practices have never developed the culture of responsibility for protection of basic rights in any state mechanism. Therefore, only the basis of state's limited means and resources, if anyone attempts to undermine such rights which are related to person's physical and human dignity, that will be the historic mistake and not pardonable. The constitution is not only a political document rather as it also represents interests and aspirations of all citizens; therefore it should cover the feelings of all citizens. Similarly, since protection of and respect to human rights, and fulfil these responsibilities through human rights mechanism are the task of the state, therefore, it should be able to emphasize on such issues constitutionally. The constitution should not forget the physical, social and cultural structure of the country .Also for an appraisal of the sociological jurisprudence in Indian context it can be said that these socio economic measures are meant to protect the dignity of human personality and to ensure prosperity of people. While seeing the process of constitution building and the situation, in case of Kashmiri Pandits, such happening was natural. In fact, in the constitution building process, neither there was no representation from government or political environment to realise the importance to economic, social and cultural rights of Pandits.[2]

MIGRANTS   VS. INTERNALLY DISPLACED PERSONS

Migrants are those who make a “conscious” choice to leave their country of origin and can return there without a problem. If things do not work out as they had hoped or if they get homesick, it is safe for them to return home, where as Internally Displaced Person (IDP)[3] may have been forced to flee their home for the same reasons as  refugee, but has not crossed an internationally recognised border. 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.[4]  Hence it can be analysed that their status must be elevated to Internally Displaced persons as they left the valley under two factors coercion and domestic/ internal movement, which are key factors of  IDP.

Hence they must also reap the status   and privileges should be awarded to them along with adequate relief as prescribed under UNHCR. Also to follow the Guiding Principles lay out the responsibilities of states before displacement – that is, to prevent displacement – during and after displacement which have been endorsed by the UN General Assembly, the African Commission on Human and People's Rights (ACHPR) and by the signatories to the 2006 Pact.

STATE RESPONSIBILITY

a)NATIONAL

The constitution of  India also enshrines human rights under the broad spectrum of Article 21 Right to Life also includes Right to live with dignity and not mere animal existence .Hence, the role of the government is crucial in protection and promotion of all kinds of rights.

The irony is that when Bangladeshi refugees famously called as “Chakma refugees” infiltrate Indian territory , they are given shelter on humanitarian grounds but the very Indian citizens i.e. Kashmiri pundits were neither given land , nor shelter by  able Indian government. Indeed it is a violation of fundamental rights of Kashmiri Pandits and state failed to provide adequate relief in terms of providing rehabilitation, or resettlement or employment. Ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, national humanitarian law and refugee law, the state must provide with effective remedies including reparation, rehabilitation or compensation, protection of property, access to documents and participation in elections (even before return to the habitual place of residence).[5]

INTERNATIONAL REGIME

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights, [6]  In 2005, the UNHCR signed an agreement with other humanitarian agencies. "Under this agreement, UNHCR will assume the lead responsibility for protection, emergency shelter and camp management for internally displaced people. A lot is being done at international level but domestic implementations are still week. In June 2010humanitarian system reaches out to more people in need of assistance and protection, further gaps in policy and operational capacity might arise. UNHCR will strive to identify such gaps and needs and develop new operational tools and guide  [7]

CONCLUSION

The Kashmiri Pandits are still in their own land struggling for their rights . With reference to Kashmir, for conflict transformation and positive peace and prosperity, economic, social and cultural rights should be provisioned as important rights in the new constitution and a strong framework should be designed for its enforcement and implementation. Otherwise, it will be injustice to the spirit of people's movement. Economic, social and cultural rights are not the new rights. National and international organizations have been working and advocating on these rights for decades. The act of avoiding these rights stating as these rights are only for unnamed community does not have any meaning. Similarly, it is not logical to have a narrow mind that such rights may cause for limiting the civil and political rights as well as individual rights. None of the human rights are limited to any individual or community. They are universal, natural and interrelated. Guaranteeing of such rights definitely supports to improve the welfare of backward community[8]. It is recommended that their status should be uplifted to that of IDP[9] .The national and international regimes must take up their case and confer on them the status of INTERNALLY DISPLACED PERSONS. 

[1]   The exodus saw a deep impact on the kashmiri “batta”( the kashmiri pandit).not only did a common man and his next generation lose his homeland , but also the cultural heritage , the right to places of worship, the common festive celebrations, the mother tongue , and so much more. The elderly faced depression, anxiety.

[2] This state of homelessness, plunged them into refugee camps which gave them immense mental stress, both physically and mentally. Statistics and surveys reflect that more than 8000 displaced kashmiri persons died during ten years of displacement due to exposure to hostile environment, snake bites, heat strokes, heart, nervous and other ailments. According to Jitender Singh, a leading physician and diabetologist of Jammu Medical College, KP elders suffer with diabetes mellitus and high BP due to continuing stress.   They were denied food, shelter and clothing which are the  very basics of human existence.  What else to say sky was there shelter and hunger there food. Many of them died due to mental stress , poverty  and tuberculosis .

[3] Internally Displaced Person” shall mean ‘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

[4]  Deng, Francis. "The guiding principles on internal displacement". E/CN.4/1998/53/Add.l, February 11. New York, NY: United Nations. New York: United Nations. http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html. Retrieved 2007-10-23.

[5]Report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, submitted pursuant to Commission on Human Rights resolution 2004/55, E/CN4/2005/84, 31 Dec 2004, para 43

[6] International Covenant on Economic, Social and Cultural Rights(PREAMBLE)

[7]http://www.unhcr.org/4b0509619.html

[8]as provided for in the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly resolution 53/144, 8 March 1999) and the EU Guidelines on Human Rights Defenders (14 June 2004);

[9]Notwithstanding that it is the primary duty and responsibility of the Minister to provide protection and assistance to internally displaced persons under,SEC3(3)