The path-breaking judgement of the Supreme Court of India regarding Article 370 has great significance in a historical context. The apex court deserves compliments for ultimately relieving our current and future generations of the severe socio-political and psychological migraine that we suffered for the last seven decades on account of Article 370 of the Indian Constitution. This migraine contained severe convulsions of headaches of various nature that gave us perpetual pain all along, wittingly and unwittingly.
Our honourable Prime Minister, Narendra Modi, in his recent column on the historic judgement, calls this migraine as the mindset of “duality”. He writes, “Unfortunately, due to centuries of colonisation, most notably economic and mental subjugation, we became a confused society of sorts. Rather than taking a clear position on very basic things, we allowed duality, leading to confusion. Sadly, Jammu and Kashmir became a big victim of such a mindset. At the time of independence, we had a choice of making a fresh start for national integration. Instead, we decided to continue with the confused society approach even if it meant ignoring the long-term national interests”.
The unanimous judgement of the highest court (delivered on December 11, 2023) on all issues related to the abrogation of Article 370 brought this nation -India that is Bharat, out of the constitutional duality for ever. It is historic in the sense that it brings to an end the facade of Article 370 being a “permanent article”. Though it was classified as a temporary provision by the constitution of India itself, textually and contextually, yet political leaders made attempts to mislead the people on this account. They aroused passion and sentiments among the people all these decades giving them to believe that it was related to their so-called honour and dignity.
A false notion was created not only by the politicians of various hues but also by some noted legal professionals and ‘experts’ as well that Jammu & Kashmir retained some kind of sovereignty even after the accession of the state to the Union of India. Having an eye upon the political harvest, it was hidden from the public gaze that Article 370 was an example of asymmetric federalism. While the existence of the said article in the constitution was misused to nurture, propagate, and promote the separatist and parochial agenda, hardly was it made known to the people that the purpose of the Article 370 was to slowly bring J&K at par with the other states.
With the surreptitious inclusion of Article 35A, by virtue of Article 370, a wall of hatred was raised in 1954 to further multiply human rights violations upon the common citizens of India in the J&K state. A separate constitution of J&K, a separate symbol and a separate flag added to the duality of mindset that gave rise to sub-nationalism oriented politics in the state. People were divided into classes and thus deprived of their fundamental rights. Article 35A was the classic example of the violations of Article 16, 19, 20 and 21 which also came to the fore during the hearing of the case in the apex court.
Article 370 provided a constitutional justification and even the administrative mechanism to the secessionist theory which propogated that Jammu and Kashmir was not an integral part of the Union of India. In this context, the preamble of the speparate constitution of J&K is an appropriate example. The highest court has elaborately and very well clarified that there was no malafide intention visible in exercise of powers under Article 370(3) by the President of India when legislative action to make Article 370 disfunctional was taken by the Parliament on August 5, 2019.
It is also noteworthy that while the Court declared that the President of India had no necessity of any consultations with the state legislature/state constituent assembly to bring to an end the existence of Article 370, it also held that resorting to Article 367 by the government was ultravires of the constitutional scheme. This is a clear-cut guideline for the governments to desist from taking such an action in future. Upholding the decision of the parliament in regard to the formation of the Ladakh Union Territory was welcomed by all and directions in regard to the state status and elections in the J&K state have also been greeted by the people with a sense of purpose.
It is ironic that the plaintiffs on the one hand were talking of democracy and on the other hand demanded permanence based on the crown that is long gone. These plaintiffs belong to the same legacy that takes pride in launching “Quit-Kashmir movement” against the Maharaja of Jammu and Kashmir in 1946. They would always love to apply the rules of the game selectively. In this context, the following para in the judgement assumes significance that brings to an end not only the debate about the superiority of the Indian constitution but also the questions related to sovereignty:
“On 25 November 1949, a proclamation was issued for the state of Jammu and Kashmir by Yuvraj Karan Singh. The declaration in this proclamation that the Constitution of India would not only supersede all other constitutional provisions in the State which were inconsistent with it but also abrogate themselves what would have been attained by an agreement of merger. With the issuance of the proclamation, paragraph 8 of the Instrument of Accession ceased to be of legal consequence. The 9 proclamation reflects the full and final surrender of sovereignty by Jammu & Kashmir, through its sovereign ruler, to India -to her people who are sovereign”.
When it was said that the current and future generations of J&K would feel relieved of a big headache consequent upon the judgement of the apex court, it also meant that it opened new vistas for the nationalistic and public welfare politics in Jammu and Kashmir for all. Our beloved Prime Minister echoed the same sentiment in his article in this manner, “today, every child born 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 are no longer prisoners of the past but are possibilities of the future. After all, development, democracy and dignity have replaced disillusionment, disappointment and despondency”.
It is time to express deep gratitude to the Supreme Court of India and the honourable judges who created history and brought to an end the most painful chapter of India’s post-independence era in regard to Jammu and Kashmir. The idea of Truth & Reconciliation Commission in the judgement needs a deeper thought and should invite the attention of the government and the civil society to take it to the logical conclusion. The victims of terrorism need to be provided ‘accessible relief’ and the Commission can play a positive role in this direction.
The judgement must have also provided a great solace to the souls of our great national and regional icons who campaigned and struggled against Article 370 (earlier 306A) and the ideology connected with it throughout their life. Besides others, they prominently included Dr. Shyama Prasad Mukherjee, Dr. B. R. Ambedkar, Moulana Hasrat Mohani, Rafi Ahmed Kidwai, Balraj Madhok, Atal Bihari Vajpayee, Pt. Premnath Dogra and Adv. Tika Lal Tapiloo. It was late Dr. Mukherjee who laid down his life in Kashmir while protesting against the Article 370 and the then prevalent ‘permit-based entry system’ in Jammu & Kashmir.
Those who have been advocating for the continuance and ‘permanent’ character of Article 370 need to know what Pt. Nehru, their idealistic leader, said about the permananent nature of the constitutional provisions and laws. He, in his address during the debate on Article 368 in the Constituent Assembly of India, observed, “While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible … while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote – man and woman – the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so – under this Constitution, of course, it will have the right to do anything – should have an easy opportunity to make such changes as it wants to”.
This author had brought some important concerns before the apex court in regard to its a few judgements earlier. The first was in the year 2017 in context of the Court’s rejecting the case of probe into the excesses committed against the exiled Kashmiri Pandit community in Kashmir at the hands of the religious-fundamentalist and terrorist regime. The second was in reference to the judgement delivered on the Tripple Talaq issue in 2018. The third one was regarding the decision about Sabarmalai, Kerala and the developments connected with it in 2019. In all earlier communications to the Supreme Court of India, this author as the human rights defender, senior law abiding and conscious citizen of the country made a sincere attempt to tell the apex court as to where, in the eyes of the people, it went wrong or right.
This time by an endorsement of the legislative action of 5th August 2019 of the parliament, the highest court has earned further honour and respect in the hearts and minds of the people of the nation at large. It created a strong hope afresh that the people of Jammu and Kashmir have a bright future ahead. Political differences apart, we have a common destiny to achieve the unachievable so far as peace, prosperity and purpose are concerned. The apex court has well established that the constitution of India in the background of our great Indian civilization is the guiding star for all of us. The Supreme Court and the judges of the constitution bench deserve our thanks and gratitude and we express that wholeheartedly….!