New Delhi: In a separate but concurring opinion upholding the abrogation of Article 370 of the Constitution Monday, Justice Sanjay Kishan Kaul recommended setting up an “impartial truth and reconciliation commission”, to investigate and report on the human rights violations perpetrated in Jammu & Kashmir — both by state and non-state actors — at least since the 1980s.
The committee, he said, should also recommend measures for reconciliation.
“This commission should be set up expediently, before memory escapes,” he wrote, adding that the exercise should be time-bound.
A five-judge bench of the Supreme Court Monday unanimously upheld the abrogation of the constitutional provision that bestowed special status on the erstwhile state of Jammu and Kashmir.
The majority view was authored by Chief Justice of India D.Y. Chandrachud, who wrote on behalf of justices B.R. Gavai and Surya Kant as well. Justices Sanjay Kishan Kaul and Sanjiv Khanna wrote their respective concurring views.
Justice Kaul’s conclusions were largely the same as those in the majority judgment. However, he said that the erstwhile state of Jammu and Kashmir retained an element of internal sovereignty despite its ruler Maharaja Hari Singh signing the Instrument of Accession with India in 1947.
Article 370 of the Constitution, he added, recognised this internal sovereignty by recognising the constituent assembly of J&K, which established a constitution for the former state.
This was in contrast to the majority judgment authored by CJI Chandrachud, who held that the state of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India.
While leaving it to the government to devise the manner in which the commission should be set up, Justice Kaul observed, “There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation.”
However, as a word of caution, he added that this commission should not turn into a criminal court, and “must instead follow a humanised and personalised process enabling people to share what they have been through uninhibitedly”.
The commission, he said, was only one of the many avenues towards the goal of systemic reform. “It is my sincere hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity,” he added.
His judgment ended with the line, “Whatever has been, has been but the future is ours to see”, with apologies to the song ‘Que Sera, Sera’.
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‘A historical burden’
In an epilogue to the judgment, Justice Kaul spoke of how the Kashmir Valley “carries a historical burden”.
He said that during his travels home over the years, he had “observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society”.
In order to move forward, he added, “the wounds need healing”. He observed, “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.”
He said the first step is to achieve a collective understanding of the human rights violations perpetrated against people of the region.
While there have been several reports documenting incidents of human rights violations in J&K, there is a lack of a “commonly accepted narrative of what happened, or in other words, a collective telling of the ‘truth’”.
He, therefore, recommended setting up a commission to look into these incidents.
How Article 370 was abrogated
While articles 1 and 370 of the Indian Constitution automatically applied to J&K, Article 370(1)(d) allowed the President to extend other provisions to the erstwhile state.
However, it required: (i) consultation with the state government for applying those provisions related to matters specific in the Instrument of Accession, and (ii) concurrence with the state government for applying any other provisions to the state.
Article 370(3) of the Constitution said that the President can issue a public notification declaring that Article 370 shall cease to operate. However, it added that “the recommendation of the constituent assembly of the state… shall be necessary before the President issues such a notification”.
These two provisions formed the basis of the abrogation of Article 370 and the Supreme Court judgment.
In August 2019, the then President Ram Nath Kovind issued an order, called CO (constitutional order) 272, amending Article 367 of the Constitution, which deals with the interpretation of the Constitution.
This amendment said that the reference to the constituent assembly in Article 370 would mean “legislative assembly”. This paved the way for changes to Article 370 itself, because now the permission of the constituent assembly — which ceased to exist in 1957 — wasn’t needed anymore.
CO 272 also relied on Article 370(1)(d) to apply all the provisions of the Constitution to the State of Jammu and Kashmir.
Within hours of the President issuing CO 272, the Rajya Sabha recommended that Article 370 should cease to operate. At the time, Jammu and Kashmir was under President’s rule. So, on 6 August 2019, the President issued another order, CO 273, declaring that Article 370 would cease to operate, on recommendation of Parliament.
Since the J&K constituent assembly had been dissolved, the majority judgment of the Supreme Court has now held that the President can issue notification under Article 370, unilaterally declaring that Article 370 ceases to exist.
It has also said that there was no requirement to obtain concurrence of the state government in applying all provisions of the Indian Constitution to Jammu and Kashmir, because Article 370(3) ceasing to operate has the same effect of applying all provisions of the Constitution to J&K under Article 370(1)(d).
Justice Kaul’s opinion
Justice Kaul’s judgment began with the cultural and political history of Kashmir.
In concurrence with the majority judgment, he also concluded that Article 370 was intended to be a temporary provision. He added that the power of the President under Article 370(3) was unaffected by the dissolution of the constituent assembly of Jammu and Kashmir.
The President can exercise his power under Article 370(3) without recommendation of the Jammu and Kashmir constituent assembly. Justice Kaul asserted that when the J&K constituent assembly ceased to exist, only the power of the constituent assembly to make the recommendation ceased to exist. He asserted that the main provision on the President’s power continues to exist.
He found the amendment of Article 370 through Article 367 to be “invalid”, but found that the concurrence of the state government was not required to apply all provisions of the Constitution to the state. The President, he said, had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d).
Justice Kaul said the President had unilateral power to notify that Article 370 ceases to exist under Article 370(3), which, in effect, amounts to applying all provisions of the Constitution under Article 370(1)(d).
“Therefore, there was no requirement to obtain concurrence of the Government of the State in applying all provisions of the Constitution under CO 272,” Justice Kaul concluded.
He also said that the court does not need to look into whether the bifurcation of the erstwhile state of Jammu and Kashmir was valid, because of the government’s assurance that the statehood of Jammu & Kashmir would be restored on elections being held.
‘Creation of UT must be justified with strong reasons’
In another three-page concurring opinion, Justice Khanna said that CJI Chandrachud’s judgment is “scholarly and it elaborately annotates the complex legal issues”, and Justice Kaul’s judgment “pragmatically demystifies the factual and legal position”.
He agreed with both the judgments, while adding that “conversion/creation of a Union territory from a state has to be justified by giving very strong and cogent grounds”.
Justice Khanna said that such a conversion must strictly comply with Article 3 of the Constitution, which deals with the formation of new states and alteration of areas, boundaries or names of existing 0nes.
“Union territories are normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a state into Union territory has grave consequences, amongst others, it denies the citizens of the state an elected state government and impinges on federalism,” he observed.
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