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India’s Supreme Court Endorses Government’s Abrogation of Jammu and Kashmir’s Autonomy

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India’s Supreme Court Endorses Government’s Abrogation of Jammu and Kashmir’s Autonomy

The apex court ruled that both the substance and the procedure adopted by the Narendra Modi government to revoke Article 370 are constitutionally valid.

India’s Supreme Court Endorses Government’s Abrogation of Jammu and Kashmir’s Autonomy

The Supreme Court of India building in New Delhi, India, as seen on December 11, 2019.

Credit: Wikimedia Commons/Subhashish Panigrahi

India’s Supreme Court has upheld the 2019 decision of the central government to abrogate Jammu and Kashmir (J&K)’s special status under Article 370 of the Indian Constitution.

On Monday, a five-judge constitution bench headed by the Chief Justice of India D.Y. Chandrachud gave its stamp of approval for both the substance and the procedure adopted by the Narendra Modi government in August 2019 to revoke J&K’s autonomy.

For decades, Article 370 underpinned India’s relationship with J&K, guaranteeing it a measure of autonomy. While this autonomy was whittled away by successive governments both at the center and in J&K, the guarantee remained, albeit on paper.

Then on August 5, 2019, India’s Hindu nationalist Bharatiya Janata Party (BJP) government announced in Parliament its decision to abrogate Article 370. It also stripped J&K of its statehood and bifurcated it into two union territories — Jammu and Kashmir, and Ladakh, which are being directly ruled by New Delhi.

The decision prompted jubilation across India. However, it was deeply resented in the Kashmir Valley. Some 23 petitions were filed in the Supreme Court challenging the constitutional validity of the government’s decision. Monday’s verdict came in response to these petitions.

In a unanimous decision announced on December 11, the Supreme Court said that the government’s decision to abrogate Article 370 was constitutionally valid.

It ruled that Article 370 was a “temporary provision,” necessitated by the war conditions that prevailed in J&K in 1947 — tribal fighters backed by the Pakistan Army had invaded the then princely state, when it signed the Instrument of Accession with India. The court asserted that J&K “does not have ‘internal sovereignty’ distinguishable from the powers and privileges enjoyed by other States in the country,” and had “full(y) and finally surrendered” to the Indian Union through the Instrument of Accession.

Among the issues raised by the petitioners, as well as some like opposition leader Rahul Gandhi who otherwise supported the decision to revoke Article 370, was the flawed procedure adopted by the Modi government. The petitioners argued that it was J&K’s Constituent Assembly to decide on its special status. It was not for the Indian Parliament to revoke it.

The Supreme Court has rejected this criticism, asserting that the president and Parliament have the power to make the decision on the matter in the absence of the state assembly, which was dissolved in 2018. The concurrence of the J&K Legislative Assembly was not required.

In June 2018, the BJP withdrew support to the coalition government it was part of in J&K,  leading to the collapse of the government. In November of that year, the state assembly was dissolved.

J&K has been without an elected government since then. Despite repeated promises to hold assembly elections, the central government has been dragging its feet on the matter.

On Monday, the Supreme Court also called for the restoration of J&K’s statehood “at the earliest” and directed the Election Commission to hold elections to its state assembly by September 30, 2024.

The apex court’s endorsement of the Modi government’s decision to abrogate J&K’s autonomy is a major victory for the BJP. Revocation of Article 370 has been a key item on the agenda of the RSS, the ideological fount of Hindutva organizations, for decades. It was on the BJP’s manifesto in the April-May 2019 general elections.

The BJP can be expected to trumpet the fulfillment of its 2019 campaign pledge in the upcoming general elections.

According to an official in India’s Ministry of Home Affairs, “a period of uncertainty has ended with the Supreme Court ruling. The legal and constitutional issues involved in the abrogation decision have been settled,” he told The Diplomat. The ruling, he said, clarifies J&K’s status. It will pave the way for businessmen “to boldly invest” in J&K.

Importantly, “had the apex court rejected the abrogation of Article 370 it would have triggered uncertainty, boosted Kashmiri separatism, even destabilized the country,” the home ministry official said.

In J&K itself, the mood is mixed. While the Hindu-dominated Jammu region celebrated the court ruling, Kashmiris are viewing it as yet another example of India’s betrayal of its promises.

Political commentators have raised concerns over the implications of the court ruling for India’s democracy and federalism.

An editorial in The Hindu slammed the Supreme Court for its “unconscionable conclusion” that when a state is under president’s rule, Parliament “can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the state legislature.” Describing the court verdict as “ominously anti-federal,” The Hindu warned that it has “grave implications for the rights of states, permitting a range of hostile and irrevocable actions in the absence of an elected body” and “undermines federalism and democratic processes to a frightening degree.”

In an article published in The Hindu after the court verdict, Prime Minister Modi said: “I have always wanted to work to alleviate the suffering of the people of Jammu and Kashmir.” Articles 370 and 35(A) “were like major obstacles.”

These obstacles have now been removed.

There is much Modi can do if he is serious about alleviating the suffering of the people of J&K. For a start, he must set in motion the procedures to restore J&K’s statehood and hold free state assembly elections there. The faith of Kashmiris in India’s democracy and justice needs to be rebuilt.

Importantly, Modi should heed the recommendation of Justice Sanjay Kishan Kaul, who hails from J&K and is one of the five judges of the constitution bench, for an “impartial Truth and Reconciliation Commission” to probe the violation of human rights perpetrated by both state and non-state actors in J&K since the 1980s and suggest measures for reconciliation. Calling for the setting up of the TRC expediently, “before memory escapes,” Kaul stressed that the process should be a “time-bound” exercise.

“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,” he observed.

Can Modi summon the political will to act on Kaul’s recommendations?