By K.N. Pandita
Independence of judiciary is one of the greatest boons of democracy. Its operative part depends on two crucial factors: One is how far the regime shows it due respect, and the other is how far the honourable judges maintain their integrity.
In developing countries, judiciary is usually under stress owing to the dynamics of economic and social development that ask for upgrading and democratizing existing laws, and enacting and reinterpreting many new laws. Although it is the assembly which has to do the law making business but ultimately it is the judiciary that becomes the custodian of the law and its operator.
As highly conscientious members of civil society, judges cannot be immune to the phenomenon through which the country is passing. It is just possible that at times the actions and decisions of the government may not be fully compatible with the requirements of law and justice. This is a critical situation for the dispeners of justice. By and large, it is found that in such tight situations, upright judges have stood fast by their professional inegrity and tried to be just and not partisan.
A case in sight is the recent judgment by a Delhi Court in a lawsuit filed by some Kashmiri Pandit employees of the Central Government who, after their retirement, were asked to vacate the government accommodation.
The verdict of the honourable High Court of Delhi in this specific case is an eye opener of how humanitarian consideration, common sense, natural justice and circumstantial exigency should justifiably supersede cut and dried rules and laws of governance. The verdict restraining eviction from government accommodation may not be the first of its kind, but taking into account the raw deal given by the powers that be to the internally displaced persons from Kashmir valley for last two decades, it is a remarkable piece of adjudication.
It is for the first time that a court of law in India has recognized some vital constitutional implications of internal displacement, which the government condescendingly ignored, circumvented or rejected in the past. Undoubtedly, political considerations always supervened to deny the victims of Theo-fascism their rights and privileges. It is something unexpected of a democratic welfare state, a Ram Rajya state of Gandhiji’s dreams.
The verdict is very significant in more than one way and it will have noteworthy bearing on the entire spectrum of internal displacement like status, rights, and privileges of the affected people, and, more importantly, the contentious issue of their return and rehabilitation in the valley.
First of all, cognizance by the honourable court of their status as “internally displaced persons” sets aside the nomenclature of “migrants” arbitrarily thrust on them by the state and the union government. This vindicates the prayer of Kashmiri Pandits to the National Human Rights Commission in early days of their exodus that was turned down obviously on political considerations. The victimized minority community has been stating on national and international fora that it fulfills all conditions set forth by the UN Human Rights Commission for entitlement as “Internally Displaced Persons” because it did not cross national borders. The high court verdict now entitles them to demand not only the proper nomenclature but also privileges and rights that accrue to them as IDPs. They are to be treated as international refugees for all intents and purposes like relief, asylum, concentrated rehabilitation of their choosing etc.
The second major implication is that the verdict of the honourable high court explicitly recognizes that “violent situation forced them to flee (the valley), and forcing them to return to the areas where they were persecuted violates the principles of International Law forbidding expulsion of a refugee into an area where such persons might be again subjected to persecution”.
In combination with this observation there is the honourable court’s additional declaration that the “Government has failed to ensure their safety there.” The two observations namely (a) they were persecuted and forced to flee, and (b) government failed to ensure their safety, invalidate and dismiss government’s plan of taking the displaced persons back without fulfilling the pre-requisites of rehabilitation of the refugees. Under international law, to which the honourable court has alluded, these refugees have a right to be rehabilitated concentratedly in an area or a region of their choosing. This is precisely what the UN Human Rights Charter sets forth for the rehabilitation of IDPs. Government of India is a signatory to that Charter. Demand for a homeland emanates from the Charter in question.
The third implication is that the honourable court has asserted in most forceful words that there has been “unprecedented ethnic cleansing of minority community from Kashmir valley on account of the inability of the state to protect them and their property from violence, who, as result were rendered homeless”.
The verdict again vindicates Kashmiri IDPs who had made an appeal to the National Human Rights Commission of India to register a case of their genocide in Kashmir but the Commission, again perhaps on political considerations, would not agree though sadistically its verdict stated that “genocide-like conditions were created.”
The IDPs from Kashmir have been fighting for their genuine rights with great fortitude on regional, national and international levels. They were able to convince the international community that for long their religious minority community has been subjected to discrimination and persecution, and finally ethnically cleansed of their homeland. But unfortunately, their similar entireties cut no ice with the central and the state governments. Even when this writer struggled at the UN Human rights Commission in Geneva for several years and was successful in persuading the Minority Rights Group of the Human Rights Commission to incorporate “reverse minority as Kashmiri Pandits” in the body of definitions of Minority, which later on went into all relevant documentation at the UN, the Union Government has been loath to accept it.
Looked from these facts of history, we regret that the government has been willfully undermining the status, rights and privileges of IDPs from Kashmir. It has been all along immune to the human aspect of the case. Disregard of humanitarian aspect still continues. Delhi administration refuses to regularize the services of 230 trained graduate and post graduate Kashmiri IDP female teachers in its education department for last 20 years. Despite equal work load with regular teachers, they are paid not even half the stipulated salary.
The decision of the honourable High Court of Delhi in this particular case is a historic decision and greatly enhances the prestige of judiciary for its human face. It makes space for the refugees from Kashmir to stake their claim for all rights and privileges as IDPs. The court verdict is an indicator and path breaker.