South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Kashmir Times on Jan. 22 by B. L. Saraf ::

The reported recommendation of the Joint Parliamentary Committee ( JPC ) to grant basic rights to the West Pakistani Refugees ( WPR ) which stand denied to them, despite living in the State of J&K for the last sixty five years, has sparked a controversy in the expected quarters. In Kashmir, some sections are up in arms against this long awaited humanitarian move. Kashmir centric political parties are, ominously, silent on the issue. There can be no denying that these people face basic human problems ; besides, confronting a social problem which has, almost, rendered them “out caste”.

Let us, for a moment, keep off the polemics and listen to the sympathetic words of Supreme Court on the issue of WPR ” ….The petitioners have a justifiable grievance. We are told that they constitute nearly seven to eight percent of the population of the State of Jammu & Kashmir. Surely they are entitled to expect to be protected by the State of Jammu & Kashmir. In the peculiar context of J &K, the Union of India also owes an obligation to make some provisions for the advancement of the cultural, economic and educational rights of these persons. We do hope that the claims of the persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from Union of India and the State of Jammu & Kashmir …….” ( Bachan lal Kalgotra v/s State of J&K and others ; A I R 1987 SC 1169 ). These observations were made in a writ petition filed by the Action Committeeof West Pakistan Refugees against the State of J &K and others, for vindication of their rights as ordinary residents of the State. The observations could not translate into an executable order because of the Section 6 (2 ) of State Constitution and Article 35 A of the Constitution of India.

The WPR have been agitating for their settlement as the residents of the State. So far, no government has addressed their problem. On the contrary, the State government came with a legislation called J&K Migrants Resettlement Act, 1982 – known as Bill N0 9 – enabling the residents who had migrated to Pakistan between 1st March 1947 to 15th May 1954 to return and claim their property and resettle in the State. To the WPR, it came like adding salt to their injury. The Bill has enabling provision for those persons who had migrated to Pakistan to return to the State and resettle here, should they desire so. We do not know how many of them would want to return and how many of them have approached the Government of Pakistan to initiate a legal process for their return to the State. Till then, the matter of return of the beneficiaries of the Bill No 9 will be in the realm of speculation. We have it from reliable source that those who left for Pakistan in 1947, or immediately thereafter are well settled there and do not have such complaints against that country as the WPR have in our State. At best, their’s can be a desire or choice to return and reclaim the property, left behind. But the case of WPR is entirely on different footing. The poor persons have no choice, nor is their permanent rehabilitation a thing to be desired, as a supplement. They are up with an existential issue which ought to have been addressed, in right earnestness, from the day one. A thing to be desired, as a supplement, can never be equated with the one necessary for the very survival. This distinction has to be kept in mind while analysing the necessity of Bill No 9 and the settlement of WPR. Since the matter is pending consideration before the Apex Court it is not for us to discuss the merits of the case.

True, Bill No 9 has an enormous emotive and psychological value for a section of the State’s populace. It impinges on the sensitivities of some. We know that in J &K there are number of unanswered questions which run as under currents beneath the, seemingly, placid waters. And, nobody knows when those undercurrents will create a deluge, hard to manage. At times, emotions and sensitivities ought to be respected. Therefore, it is no wisdom to place the respective cases of the intended beneficiaries of Bill No 9 and the WPR in an adversarial mode. Put them on the same table and examine, in a dispassionate manner, whether it could be equitable to grant as much to the WPRs as is intended for the potential beneficiaries of Bill No 9. If it is a correct reading, in their Writ Petition, referred above, the WPR had, among other prayers, sought relief on the analogy of some of the Provisions of Bill No 9. Though, they had challenged the legality of the Bill in all respects.

May be some persons living in Pakistan want to avail the provisions of the Bill No 9. May be this law is driven by the human considerations, so its moral fibre can’t be questioned. Then, there is real need to examine the case of WPR in the same moral and ethical context, for whom it is not a question of resettlement but of a settlement for the survival. For that, the State and the Central governments must pay due regard to the meaningful words of the Honourable Supreme Court ” …………… All that we can say is that the position of the petitioner and those like him is anomalous and is up to the Legislature of the State of Jammu & Kashmir to take action to amend legislations such as, J &K Representation of People Act, the Land Alienation Act, the Village Panchayat Act etc ; so as to make persons like petitioner who have migrated from West Pakistan in 1947 and who have settled down in State of J & K since then, eligible to be included in the electoral roll, to acquire land and to be elected to the Panchayat etc……….” ( Para 5 of the above referred case ). Though circumspect, the Apex Court has acknowledged that the WPR are living in an abnormal situation.

The International law on Human Rights has relevance on the subject. Article 17 (1) of Universal Declaration of Human Rights says that everyone has a right to own property alone as well as in association with others. Article 21 (1) postulates that everyone has a right to take part in the government of the country, directly or through freely chosen representatives. Article 23 (1) lays down that everyone has right to work, to free choice of employment, to just and favourable conditions of work and to protection against the unemployment. Resolutions 3 of the 31st International Conference of the Red Cross and Red Crescent have acknowledged the importance of respect for the human dignity of protection of all migrants.

We can show regard for the International law and the sympathetic words of the Apex Court by a speedy, fair and humanitarian treatment to the cause of WPR. Their plight is far worse than that of the Tibetan refugees whom the State government has granted all the rights which are denied to the WPR. Victims of a similar kind of tragedy cannot be treated differently.

(The author is Former Principal District & Sessions Judge)


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