It was not a voluntary migration, says Justice Kaul in Article 370 verdict

New Delhi: It was not a "voluntary migration", Supreme Court judge Justice Sanjay Kishan Kaul said on Monday while referring to the "troubled situation" at the ground level in the Kashmir valley in the 1980s which triggered the exodus of Kashmiri Pandits.

Justice Kaul was part of a five-jugde constitution bench headed by Chief Justice D Y Chandrachud which unanimously upheld the Centre's decision to abrogate provisions of Article 370 bestowing special status upon the erstwhile state of Jammu and Kashmir.

In his 121-page separate but concurring verdict, Justice Kaul noted the valley of Kashmir carries a historical burden and has a social context.

"'We, the people of Jammu & Kashmir are at the heart of the debate. They have carried the burden as victims of the conflict for several decades originating from 1947 with the invasion of the valley," he said, adding that intervening political circumstances did not permit a redress to the fullest extent of the invasion. He said the consequences remained in terms of parts of Kashmir being occupied by other countries and the second round of insurgency holds its origin to the latter part of 1980s.

"There was a troubled situation at the ground level, which was apparently not redressed. It culminated in the migration of one part of the population of the state in 1989-90. It is something that our country has had to live with and without any redressal for the people who had to leave their home and hearth. It was not a voluntary migration," Justice Kaul said.

He said the situation became so aggravated that the very integrity and sovereignty of India was endangered and the Army had to be called in.

"Armies are meant to fight battles with enemies of the state and not really to control the law and order situation within the state but then, these were peculiar times," he said.

Justice Kaul said the entry of the Army created its own ground realities in their endeavour to preserve the integrity of the state and the nation against foreign incursions.

"The men, women and children of the state have paid a heavy price," he said, adding that in order to move forward, the wounds needed healing.

"What is at stake is not simply preventing the recurrence of injustice, but the burden of restoring the region's social fabric to what it has historically been based on – coexistence, tolerance and mutual respect," Justice Kaul observed.

He noted that even the partition of India in 1947 did not impair Jammu & Kashmir's communal and social harmony.

"In this context, Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity!" he said.

While unanimously upholding the Centre's decision to abrogate provisions of Article 370, the bench directed restoration of statehood in Jammu and Kashmir "at the earliest" as well as elections to the assembly by September 30 next year.