Parsa Venkateshwar Rao Jr | SC's Art. 370 ruling has left key questions unanswered

When the Narendra Modi government soon after its May 2019 victory in the Lok Sabha elections brought a bill in Parliament in August 2019 to do away with Article 370 of the Constitution, which accorded temporary special status to Jammu and Kashmir, at a time when there was no elected government in the state, and Governor’s Rule of December 2018, which was valid for six months, was replaced by President’s Rule in June 2019, there was clear political foul play.

The Bharatiya Janata Party, which had wanted to abrogate Article 370 ever since its Jan Sangh days in the 1950s under Syama Prasad Mookerjee, had managed to fulfil a key part of its political agenda. It was indeed legitimate politics however much one disagreed with the politics of the right-wing party. It had the parliamentary majority, though it did not have the courage to campaign in the election that the removal of Article 370 was on its agenda. There was enough political stealth, which could again be defended as a legitimate tactic.

The legal challenge to the abrogation of Article 370 and the abolition of the statehood of Jammu and Kashmir, and its bifurcation into two Union territories (UTs) -- Jammu and Kashmir, and Ladakh – came up in the Supreme Court in 2019 itself. But the Supreme Court chose to take up the issue only now, even as it did in the case of Ayodhya’s Babri Masjid-Ram Janmabhoomi case in November 2019 and the November 16, 2016 demonetisation issue in 2022.

The political sting of the abrogation of Article 370 and the bifurcation of the state into two UTs had died down, and there was no expectation that the Supreme Court would quash the abrogation of Article 370, or even the abolition of the statehood of Jammu and Kashmir.

Chief Justice D.Y. Chandrachud, along with Justices B.R. Gavai and Surya Kant, in a 352-page judgment, upheld the abrogation in a roundabout way. It was easy for the judges to rely on the stated provision that it was a temporary measure, and to turn down the weak case put up by senior lawyer Kapil Sibal and others that once Kashmir’s Constituent Assembly was wound up in 1956, there was no way to alter Article 370.

(The two others on the five-member bench -- Justices Sanjay Kishan Kaul and Sanjiv Khanna -- gave concurring judgments.) Surprisingly, Chief Justice Chandrachud and the others chose to argue that Jammu and Kashmir had surrendered its sovereignty through the Instrument of Accession of October 1947 signed by Maharaja Hari Singh, and therefore the special status proviso of Article 370 was untenable.

The argument of the judges that the Constitution of Jammu and Kashmir and Article 370 implied residual sovereignty is quite curious. Once Jammu and Kashmir had joined the Dominion of India in 1947 and India became a republic in 1950, there was no question of separate sovereignty of Jammu and Kashmir.

The issue was the autonomy of the state given India’s federal structure and not the sovereignty of the state. The basic tenet of political theory is that sovereignty is indivisible. Justice Sanjay Kishan Kaul also said that there was “an element of internal sovereignty” because the Constituent Assembly of the State was recognised. But that the temporary nature of Article 370 had the implication that the internal sovereignty could be “derecognised”.

Even in the temporary provision that was Article 370, there was the provision that the while “the President may, by public notification, declare that this article shall cease to be operative or only be operative with such exceptions…” is followed by the proviso: “Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

This has been rationalised by pointing to the fact that there was no state legislature in existence, and that the Governor’s Rule had been turned into President’s Rule, and it was Parliament that would take the call. Democratic morality would have required that an important decision like doing away with Article 370 should have been taken when there was an elected Legislative Assembly and government in Jammu and Kashmir. The whole thing was done legally, but it was politically dubious, to say the least.

The second major issue was whether the Centre can abolish a state, or bifurcate it into two Union territories. The Supreme Court felt that it was not necessary to go into the issue because solicitor-general Tushar Mehta had assured the judges that elections would be held and the statehood of Jammu and Kashmir would be restored. It would have been appropriate for the court to have given its ruling on the legality of the abolition of statehood. It is indeed clear that Article 3 gives unrestricted powers to the Union to create and alter the boundaries of states. But if federalism is held to be part of the basic structure of the Constitution, then it was necessary for the court to take a stance whether the government’s move violated the federal, and thus the basic, structure of the Constitution.

For various reasons, the Supreme Court and the Narendra Modi government happen to be on the same page, except for minor differences, on major issues of concern for this government. It is not surprising then that Prime Minister Narendra Modi wrote an article that reflected his happiness with the Supreme Court’s verdict. The question is whether the BJP and Mr Modi have carried the people of Jammu and Kashmir with them.

The Kashmir Valley is quiet for now, no doubt, but the issue is whether it is the peace of amity or the peace of fear. Mr Modi and Union home minister Amit Shah can claim as loudly as they can that all is well in the Valley, but there is no independent validation. It is possible and it is necessary to eliminate the terrorists, but it is necessary to respect the differences of opinion that the people of Kashmir have with the state government and with the Centre.

Even Hindu-majority Jammu is not happy with the new UT status. The only claim that the Modi government can make is that national security concern was the reason for making the drastic changes in the status of Jammu and Kashmir. Now, national security is a sensitive issue and many things can be done in its name. Ultimately, it is the trust of the people of the former state that will keep it safe. And the people are with India, but the governments need to trust them.