The Supreme Court’s judgment on Article 370, ranging from praise for strengthening the spirit of ‘one India’ to criticism for being ‘anti-federal,’ remains as contentious as the history of Jammu and Kashmir itself.
In a long-awaited ruling on 11 December, the Supreme Court unanimously upheld the abrogation of Article 370 of the Constitution, which granted special status to the erstwhile state of Jammu and Kashmir.
The day following the verdict, leading newspapers, including The Hindu, The Times of India, and The Indian Express, published versions of an opinion piece by Prime Minister Narendra Modi lauding the decision. He wrote that the judgment has strengthened the spirit of “Ek Bharat, Shreshtha Bharat”. Solicitor general Tushar Mehta also commended the government for rectifying “a Himalayan constitutional blunder of the past with gigantic proportion”.
On the other hand, leaders from Jammu and Kashmir expressed disappointment with the verdict while affirming that their fight will continue.
Ghulam Nabi Azad, chairman of the Democratic Progressive Azad Party, termed the decision “sad and unfortunate”, but said “we have to accept it”. National Conference vice-president Omar Abdullah, in a post on X, wrote, “Disappointed but not disheartened. The struggle will continue. It took the BJP decades to reach here. We are also prepared for the long haul.”
Mehbooba Mufti, president of the Peoples Democratic Party, characterised the verdict as a “death sentence” but remained hopeful, emphasising that the “fight for honour and dignity will continue regardless”. “This isn’t the end of the road for us,” she said.
Regardless of whether the verdict is accepted with open arms or met with disappointment, the Supreme Court has pronounced the final word on the legality of the government’s action to abrogate Article 370, thereby putting an end to at least one conflict—albeit a legal one—that engulfed the union territory for the past four years. And that is why, Jammu and Kashmir is the ThePrint’s Newsmaker of the Week.
Also read: Article 370 chapter is closed. Time for US-China to show they can learn, unlike Pakistan
Rewinding the clock
Around 11 am on 5 August 2019, the status of Jammu and Kashmir as people had known for the past seven decades changed completely. It happened with Union Home Minister Amit Shah announcing in the Rajya Sabha that the government had decided to abolish the state’s special status. Two Presidential orders were issued, effectively nullifying Article 370.
Shah declared that the “obstacle of Article 370” had to be removed to integrate the region with the rest of India and lay the groundwork for its development.
Article 370 exempted Jammu and Kashmir from provisions of the Indian Constitution, and required Parliament to concur with the state government for applying central laws, except those that dealt with defence, foreign affairs, finance, and communications. Similarly, while the President did have the power to apply different provisions of the Constitution to the state, Article 370 required securing the concurrence or consultation with the J&K government before issuing such an order.
Ahead of the announcement to abrogate Article 370, scores of political leaders in Jammu and Kashmir—including National Conference chief Farooq Abdullah, his son Omar, and Mufti—were either formally detained under the Public Safety Act or placed under a “house arrest”.
A batch of 23 petitions filed in the Supreme Court, challenging the government move. The petitioners resisted the court’s order granting four weeks to both the central government and the J&K administration to file a detailed response to the pleas. They demanded an immediate stay on the operation of some of the provisions of the Act that would come into force on 31 October 2019—the day J&K was to be split and become a Union territory.
“The Supreme Court can always turn the clock back,” the court had then said, rejecting the petitioners’ concerns that the hearing would either be rendered infructuous or turn into an academic exercise once the law becomes operational. The case was finally heard four years after the abrogation, starting August this year.
Also read: Casteism in Kashmir was swept under the rug. SC decision on Article 370 will help address it
What court said and didn’t say
After over four years, the Supreme Court finally pronounced its judgment on 11 December. The 352-page majority opinion said a lot, but also refrained from saying certain things.
The five-judge Constitution bench ruled that the President could unilaterally apply all the provisions of the Indian Constitution to Jammu and Kashmir, and declared that Article 370 ceases to operate. It also held that Article 370 was a temporary provision.
However, the Supreme Court did not look into the validity of the bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories through the Jammu and Kashmir Reorganisation Act 2019. This was in view of the statement given by solicitor general Tushar Mehta (during the hearing) that statehood would be restored and the UT status was temporary.
The court’s refusal to look into this issue has been criticised for being “anti-federal”, and a “retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes”. Renowned jurist Fali Nariman also said that the verdict is “an incorrect appreciation of the Constitution, which I didn’t expect the court to do.”
Instead, the court directed the Election Commission of India (ECI) to hold polls in J&K before 30 September 2024, and said statehood should be restored soon. “Direct elections to the legislative assemblies, which is one of the paramount features of representative democracy in India, cannot be put on hold until statehood is restored,” the bench observed.
The wounds need healing
In an impassioned take, one of the five judges, Justice Sanjay Kishan Kaul—a Kashmiri—spoke of how the Kashmir valley “carries a historical burden”. He said that during his travels home over the years, he has “observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society”.
“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 observed.
The wounds, he asserted, “need healing”. On his part, he has suggested 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.
Modi’s op-ed on the judgment also said that “today, every child in Jammu, Kashmir and Ladakh is born with a clean canvas, where he or she can paint a future full of vibrant aspirations.” Today, the dreams of the people, he wrote, are no longer prisoners of the past but about possibilities for the future. The future of Jammu and Kashmir, however, now lies in a return to democratic setup in the region.
While the petitions were pending in the Supreme Court, the Delimitation Commission set up to redraw constituency maps for the UT of Jammu and Kashmir released its final report in May 2022. It added seven assembly seats in Jammu and Kashmir, taking the total from 83 to 90. There are 43 seats in Jammu and 47 in Kashmir, with nine seats reserved for Scheduled Tribes.
After the Supreme Court verdict, the next battleground for Jammu and Kashmir would be the election booths.
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(Edited by Prashant)