By Upholding Abrogation Of Article 370, Supreme Court Has Kept Many Issues Unanswered

By Arun Srivastava

Supreme Court upholding abrogation of Article 370 in its verdict on December 11 has multifaceted implications. For Mehbooba Mufti if it was not the defeat of Kashmiris but of the idea of India, it was certainly not a defeat for Kashmir and Its cultural ethos, the Kashmiriyat. Instead it was a setback to the devious plan of RSS, BJP and saffron ecosystem, especially of Narendra Modi.

Legal technicality bears significance in legal elucidations and judgments. Though the apex court deleted sub section (B) of the sec 370, it did not outright announce that sec 370 cease to exist. In the backdrop of the sub section (b) ceasing to exist, it may be presumed that sec 370 has turned obsolete and is non-existent.

Of course, the RSS, BJP and Modi could boast of success of their design to abrogate Article 370 provisions that accorded a special status to Jammu and Kashmir and may strive to use this as a major political victory during the 2024 Lok Sabha election, and possibly succeed in influencing the psyche of a section of the Hindu middle class voters and Bhaktas, it would trigger a chain of political actions and counter reactions in near future.

The best judicial brains sitting on the bench nonetheless ruled that “J&K has no internal sovereignty” and had “full(y) and finally surrendered” to the Union of India through the Instrument of Accession of 1947, and that Article 370 was a temporary measure. Certainly it is not the fault of the common people of J&K that they do not have ‘internal sovereignty’ which is distinguishable from that enjoyed by other states.” If J&K had fully and finally surrendered, then why the government kept defence, external affairs and monetary transactions under the ambit of 370 and left everything else to the local administration which was to administer day to day rule.

In such a situation all the decisions and administrative actions would be treated as irrelevant and having no constitutional or legal validity. Sovereignty is a wider term and is no confined to the Indian context. In fact it is a political concept that refers to dominant power or supreme authority. In a monarchy, supreme power resides in the “sovereign”, or king. In modern democracies, sovereign power rests with the people and is exercised through representative bodies. Obviously J& K had an assembly, the members of it were elected by the people of the state.

No doubt the President decreed abrogation. But following the practices and norms of the republic democracy, he approved it at the suggestion of the cabinet of the Modi government. It is also inferred that Modi government did not carry out this exercise with any malicious intentions, but the government told the court of its compulsions in clear words. The compulsion does not get reflected in the court order.

Since in this case the Modi government had approached the President with its cabinet decision, obviously, “The President did not have to secure the concurrence of the government of the state or Union government acting on behalf of the state government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the state government was not required.”

The solicitor-general Tushar Mehta had told the court that the Union Territory status accorded to Jammu and Kashmir following the August 2019 abrogation of Article 370 was only a “temporary” measure. It is intriguing what compelled the Modi government to take to temporary measures. Since it was a temporary step, the court must have been informed by him whether the mission has been accomplished. At that time the government had told that it was adopting this step to finish the insurgency and terrorism. The Modi government must come out clean whether terrorism has been finished.

Nevertheless a recent statement issued by the Ministry of Home Affairs (MHA) to the Rajya Sabha admits that Jammu and Kashmir witnessed 761 terrorist incidents between 2018 to 2022. All these attacks have accumulated to 174 civilian deaths. The highest number of attacks was recorded in 2018, with 228 terrorist-initiated incidents which took the lives of 40 civilians; with 2019 reporting 126 terror attacks and 39 deaths, 2020 with 126 attacks and 32 civilian casualties, 2021 recorded 129 attacks and 37 deaths, and 2022 had the lowest in the list with 125 terror incidents and 26 civilian deaths.

Besides the political instability continues to plague the state. The Modi government has lost trust of the political leaders. Many of them are living under house arrest.

It is significant to note that one of the judges on the constitution bench that on Monday upheld the abrogation of Article 370 recommended the establishment of a “truth and reconciliation commission” to investigate human rights violations by “State and non-State actors” in Jammu and Kashmir at least since the 1980s and recommend “measures for reconciliation”. Saying “In order to move forward, the wounds need healing,” Justice Sanjay Kishan Kaul, second in seniority in the Supreme Court, said “This Commission should be set up expediently, before memory escapes. The exercise should be time-bound. 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.”

Though the people of Jammu and Kashmir feel dejected, a bright ray of hope is also there in the order. The bench has directed Modi government for restoration of Jammu and Kashmir’s statehood. It “shall take place at the earliest and as soon as possible” and directed the Election Commission to hold elections to the Jammu and Kashmir Assembly by September 30, 2024.

Once the people of Kashmir form their government to guide and decide their future, they can strike out the provision of outsiders purchasing land in the valley. This has one of the main factors which prompted the RSS and BJP leadership to abrogate 370 which provided protection.

It is a bare fact that 370 has lost its relevance and punch with 37 amendments. The various governments which came to rule have brought about changes to it and virtually diluted it. The only relevant element it has the right to land. Incidentally just after 370 was abrogated the saffron members had burst into joy that they would now have the right to purchase land in Jammu and Kashmir and settle there. The RSS and BJP may not concede to the fact that abrogation was part of their design to turn Muslims homeless in their homeland and change the demographic character of the state.

If the court felt that Parliament’s recourse to Article 367 to amend Article 370 was “constitutionally invalid” then how could it approve abrogation. It also said that Article 370 cannot be amended by the exercise of power under Article 367, which is only an interpretative clause and not an amending power or provision. A wrong is wrong. It is very difficult to underline the “mala fide” political intention.

The Modi government could not come out with a tenable and justifiable explanation as to what prompted it bifurcate the state. This was the reason that Congress expressed “disappointment” over the Supreme Court’s reluctance to decide on the mutilation of Jammu and Kashmir, and said it respectfully disagreed with the judgment on how Article 370 was abrogated.

In this backdrop Congress Rajya Sabha member Abhishek Manu Singhvi sought to know: “For how long does the central government intend to rule the state by remote control? What’s the fear? There is a contradiction in the Supreme Court verdict. While it says they won’t decide on the validity of the decision to break the state into Union Territories, declaring it an open case, they justified the declaration of Ladakh as a Union Territory.”

Unfortunately the opportunity to heal the wounds of Kashmiri people has been lost. The people of Kashmir have resigned to their fate. They do not see any flicker of light at the end of the tunnel. This is the reason they refrained from making good or adverse comment. This order from apex court has not brought relief to political leaders and common people. Leaders like Omar Abdullah and Mehbooba Mufti may be looking for post judgment options. (IPA Service)