‘The Supreme Court has let down the people of J&K’

On 11 December 2023, the Supreme Court of India put its seal of approval on a move by the Modi government four years ago (5 August 2019, to be precise) to end Jammu & Kashmir’s statehood and annul its special status under Article 370 of the Indian Constitution. In effect, Article 370 put an arm’s length between the erstwhile state and the Union of India, in that laws passed by the Indian Parliament did not automatically apply to J&K, and the state legislature had the right to approve them by passing a parallel act.

The Supreme Court verdict confirming the end of this special constitutional privilege for J&K “glosses over many legal explanations and is full of ambiguities”, says Anuradha Bhasin, author most recently of A Dismantled State: The Untold Story of Kashmir after Article 370 and executive editor of the Kashmir Times, one of J&K’s oldest English newspapers. The Supreme Court has “let down the people of J&K”.

Even before the verdict, Bhasin says, the government had been creating grounds for irreversible change.

“When everything else fails in a democracy, we look to the court,” says Bhasin, now a John S. Knight fellow at Stanford University in the US. “So, there were some expectations from the court.”

Excerpts from a conversation with Samar Halarnkar of Article 14.

Would you agree that the 11 December 2023 Supreme Court order upholding the end of J&K’s special privileges is in a sense redundant, given the changes on the ground since 5 August 2019? Did you expect the Supreme Court to rule otherwise?

When everything else fails in a democracy, we look up to the court. So, there were some expectations from the court. It has let down the people of J&K by giving its final seal of approval to the loss of special privileges that the people enjoyed.

The bottomline of the Supreme Court judgement is that there was no internal sovereignty left after J&K’s accession to India, and there is no prima facie case that the President’s orders scrapping Article 370 were malafide or an extraneous exercise of power.

I am not a legal expert, but from what I see, there is no reasonable explanation for arriving at such a conclusion. The verdict glosses over many legal explanations and is full of ambiguities. It is a classic case of ‘If you can’t convince them, confuse them’.

Academics and legal experts who have studied Jammu and Kashmir’s legal and political history have argued to the contrary. The accession to India was not automatic, it was sealed and cemented by Article 370.

Interestingly, the court notes, ‘We have therefore held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires’, and that ‘permitting such amendments by such a surreptitious method would be disastrous’. The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d). Then how can Article 370 be scrapped?

The exercise of power is malafide only if it is “intended to deceive”, Chief Justice Chandrachud said, and since there was no intention to deceive, there was no need for the Union government to get permission from the state government to remove Article 370. Would you agree that there was no intention to deceive?

Again, how did they arrive at this conclusion? How did they measure the intentions of the Union government? A scrutiny of the events preceding 5 August 2019 would have been enough to show that this is way off the mark. Days before, there was panic in Kashmir. The Amarnath pilgrimage was suspended abruptly and tourists were forcibly packed off and sent back.

There was extra deployment of troops and the government allayed the fears of the people by saying that these were ‘routine exercises’ for ‘security reasons’. Is that not an intention to deceive? On the night before 5 August, the internet and phones were switched off, and the entire political leadership was arrested. Were these not signs of deception?

In sum, the Supreme Court judgement says the constituent assembly of J&K was meant to be temporary, and Article 370 was meant to be temporary. Would you agree with that?

The J&K constituent assembly was temporary, as was the Indian Constituent Assembly. Their job was to draft the constitution and then they were disbanded. Four members of the J&K constituent assembly—Sheikh Abdullah, Mirza Afzal Beg, Maulana Masoodi and Moti Ram Baigra—were also part of the Indian Constituent Assembly to assist and advise on the arrangements between India and Jammu–Kashmir.

Article 370 (then Article 306A) was included by the Indian Constituent Assembly as a temporary provision. But it was not temporary so that it could be discarded. [Article] 370 was the constitutional link between India and J&K. It was temporary so that the J&K constituent assembly, while drafting the J&K constitution, would take a call on approving or rejecting it.

The J&K constituent assembly approved it and the J&K constitution laid down that J&K is an integral part of India. This meant that 370 was a finality. Its removal only brought into question the legal link between J&K and India.

Election dates are up to the Election Commission. Do you think elections will be held by September 2024?

I don’t recall any of the petitioners seeking election dates. It is bizarre that the Supreme Court should be announcing elections. If so, why by September 2024, when the parliamentary elections are due before that?

As you’ve pointed out in your book, the so-called autonomy of J&K had been whittled away for decades: 94 of 97 entries in the Union list, on which the union government has exclusive power to legislate; 260 of 395 Articles and seven of 12 Schedules of the Constitution were extended to J&K before Article 370 was removed entirely on 5 August 2019. Chief Justice Chandrachud called it an ongoing process of ‘constitutional integration’. So, what exactly did the abrogation of Article 370 achieve?

Article 370 was reduced to a hollow shell, but its existence was evidence of the special circumstances of J&K’s accession to India and its disputed nature. Significantly, it also protected the special privileges and rights of the permanent residents of J&K with respect to land rights, business investments and jobs.

So, despite the whittling away of J&K’s autonomy, 370 (and 35A, which defined permanent residents of J&K) protected the special and exclusive rights of the people that were related to their day-to-day lives. This also protected the Muslim-majority status of the state. This was also significant for India as J&K was the only Muslim- majority state in ‘secular and democratic India’.

After the J&K Reorganisation Act, scores of J&K laws were fully repealed or amended, and new laws were adopted with far reaching consequences. For instance, the term ‘permanent residents’ was purged in several clauses of various laws. More significantly, the Civil Services Recruitment Act was amended by replacing ‘permanent resident’ with ‘domicile’, opening up jobs in government services to Indian citizens outside the erstwhile state.

Automatically, the clauses in all the acts of the J&K constitution, particularly those with respect to jobs and land ownership, which required proof of being permanent resident—possession of a PRC (permanent resident certificate)—were rendered meaningless.

The government repealed or altered 26 land laws, which reversed the gains of the historic land reforms and other agrarian reforms. Some laws may indeed be beneficial for the people—for instance, the Forest Rights Act— but the implementation is weak. By and large, there is a sense of loss.

Chief Justice Chandrachud said he did not agree that the J&K Constitution indicated a unique relationship with the Indian Constitution or that there was sovereignty contained within it. He said the fact that J&K was an integral part of India is made clear from Section 3 of the J&K constitution itself, apart from Articles 1 and 370 of the Indian Constitution. Article 1 of the Indian Constitution says, ‘India, that is Bharat, shall be a Union of states.’ Justice Kaul said J&K only followed ‘a slightly different’ path to accession from the rest of the princely states. Does the historial record back up these assertions?

J&K was the centrepiece of India’s asymmetric federalism. This meant that its relationship with India was not the same as many other states’. That in no way conflicts with the Constitution’s definition of ‘India, that is Bharat, shall be a Union of states’.

Jammu and Kashmir’s accession to India was different from other princely states. There is enough historical evidence to show why Jammu and Kashmir, in view of its demography, its area and its geographical congruity with both the dominions of India and Pakistan, is placed differently. Its accession happened under particular circumstances when the tribal raiders attacked and the besieged monarch of Jammu and Kashmir sought India’s help.

The Instrument of Accession was signed conditionally by the Dogra monarch and the accession was accompanied by a letter to Lord Mountbatten, pleading Jammu and Kashmir’s unique case.

Besides, in the Instrument of Accession, the maharaja wrote that ‘my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument’ and ‘Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution’.

The schedule, appended to the Instrument of Accession, clearly gave the Indian Parliament power to legislate for Jammu and Kashmir on only three subjects—defence, external affairs and communications.

Justice Kaul referred to the Pashtun invasion of 1947, the Kashmiri Pandit exodus after 1989, spoke of ‘intergenerational trauma’, human-rights violations by State and non-State actors and recommended a truth and reconciliation commission on the lines of South Africa. Would such a commission help?

While such commissions are effective, they have a limited impact. They are effective only when there is a conflict resolution in process. How can you have conciliation and no resolution? Besides, I am not sure why this has been suggested when the subject of discussion was legality of the J&K Reorganisation Act.

As a local and a journalist, can you explain how the abrogation of Article 370 and the subsequent takeover of J&K by the Union government changed your professional and personal life?

As a permanent resident of J&K, I was as much impacted personally as any other citizen. The anxieties about land ownership and business investments applied equally
to me.

However, in an act of vendetta, the government withdrew all advertisement support to the Kashmir Times. Later, they not only sealed our office in Srinagar, which was operating from a rented government building, but they also seized all our infrastructure, office files and archives, making it impossible for us to operate. We had to gradually shut down all print editions, including Hindi and Dogri. 

Since the abrogation of Article 370, civil liberties in the erstwhile state are in tatters, and due to sweeping detentions, surveillance and criminalisation of journalists, civil society activists and many others, there is an overwhelming sense of fear in J&K—more in Kashmir Valley. This makes it difficult for us, as journalists, to carry on our work. 

(Samar Halarnkar is the founding editor of Article 14. Reproduced with permission)