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The judgment of the Supreme Court, upholding the abrogation of Article 370, is a massive legal victory for the Narendra Modi government’s approach to Jammu and Kashmir: No procedural niceties, historical promises, or legal complexities should stand in the way of its version of the relationship between Jammu and Kashmir and the Indian Union. How people assess this judgment will be determined by how our political history turns. Was the Modi government’s move another chapter in the betrayal of Jammu and Kashmir on which the SC has now put its seal of approval? Does the SC’s position establish potentially dangerous precedents for the rest of federalism as well as faith in its authority? Or, will this be the final and full integration of the state into India’s constitutional scheme, an improvement on the half measures that characterised the situation before the abrogation of 370? Will the sullen silence in the Valley be interpreted as a final victory? Or will it, as Justice Kaul’s unprecedented and heartfelt plea observed, offer an opportunity to set Kashmir on the path of truth and reconciliation?
The experience of Jammu and Kashmir is marked by a tragic paradox. The formalities of treaties, law, legality, promises and procedure have been severely litigated. And yet at the same time, there is almost no other place where they have been rendered mostly irrelevant. It has been a history of betrayal, double dealing, suffering and violence. From that fateful day in 1947 when Pakistan-backed mercenaries entered Kashmir, political options and legal process have been playing catch up with constantly altered facts on the ground. Over the years, Article 370, meant to protect the special status of Kashmir and give it more autonomy, ended up doing neither. Successive acts by parties in Kashmir, authoritarian actions of the central government, insurgencies, violence fomented by Pakistan, meant that for significant chunks of Kashmir’s history, neither democracy nor human rights were protected. It was also in a political logjam — it could neither endure its condition, nor did it possess the means to overcome it. Kashmir’s special status, while an important aspiration, ended up being as much a source of historical burden as a mode of emancipation. Kashmir’s identity was eviscerated as the Pandits were forced to leave. Usually norms have to meet facts halfway. In the case of Kashmir, the facts often become the norms. In 2019, the Government of India, via two Constitutional Orders 272 and 273, abrogated Article 370, and reorganised the state, downgrading the status of Kashmir. The facts changed again. The SC, in this judgment has, once again, obliged and the norm followed.
No one expected the abrogation of 370 to be reversed. The historical case is ambiguous and the political might behind abrogation overwhelming. Article 370 had, in effect, been progressively attenuated since the 1960s. The question was always over the procedure for doing it — whether it could be done without the express consent of some appropriate body that was representative of the people of Jammu and Kashmir? And whether some kind of asymmetric federalism that does justice to the historical identity of Jammu and Kashmir is still possible? The Court is quite emphatic that Article 370 was meant to be transitory in nature; that the concurrence of Jammu and Kashmir Legislative Assembly was not required. It has also emphatically stated that the whole of the Constitution of India applies to the state. But in doing so, the Court produces its typical conjuring trick. From a constitutional law point of view, it was mildly reassuring that the Court held that the modification to Article 367 by Constitutional Order (CO) 272 had the effect of amending Article 370 and was ultra vires (Article 370) 1(d). This is an important principle because it prevents the government from introducing a backdoor amendment to an article of the Constitution by amending another article. If an article is to be amended, the amendment has to be specific to it. But given that CO 272 is at the heart of the process, should not the whole exercise be considered to be rendered suspect or malafide? Under normal constitutional interpretation, it would. But then we have a jurisprudence where law applies to all possible future cases but not the one being adjudicated.
A similar conjuring trick has been played on the second key issue: The reorganisation of the state of Jammu and Kashmir and its downgrading to a Union Territory. The reorganisation of the state created a new precedent. Article 3 allows for changes of boundaries of states, their names and even identity. What it does not allow for is changing the status of a state itself, and downgrading it to a Union Territory. The Court avoided this issue, by simply accepting an open-ended promise from the government with no specified date that statehood will be restored. Hereby a new jurisprudence is invented: You can do something potentially unconstitutional, reap all the material consequences of that act, and then restore a formal status quo ante at some unspecified future date. A case could be made for upholding the abrogation of Article 370. But for the Court to completely duck the most significant and novel degradation of Indian federalism that the Jammu and Kashmir Reorganisation Act, 2019, represents, will do no favours to its authority. Per formatively, the Court ended up saying: “The whole of the Constitution of India applies to Jammu and Kashmir. But not yet.” A curious performance indeed.
Justice Kaul’s unprecedented call for a Truth and Reconciliation Commission in an appendix to the judgment can be debated. But he was right to see the problem of Jammu and Kashmir beyond its technicalities. He was right in asserting that there needs to be an honest reckoning with the suffering caused by both state and non-state actors. Our sympathies have been too partisan on communal lines. Sentimentalism often substitutes for an honest confrontation with sources of violence and genuine political disagreement. But the tragedy is that there seems to be no political force even remotely capable of creating political reconciliation. In one way, the abrogation of Article 370 moves history forward. It is an attempt to cut the Gordian Knot that the settlements of the late ’40s and ’50s left us with. We shall see whether it succeeds. Indian politics itself is changing. The Supreme Court is trying to facilitate the government’s new approach to Kashmir, without reassuring anyone that it has the integrity to uphold the Indian Constitution, in whose name it speaks, in full measure.
The writer is contributing editor, The Indian Express
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