The Centre’s decision to strike at the heart of Article 370, and to dissolve J&K state, thus strikes at the basic structure of the Constitution.
The dubious constitutional decision of the Narendra Modi government on August 5 will result, with effect from today, in the dissolution of the state of Jammu and Kashmir and the creation in its place of two Union territories — Jammu and Kashmir, and Ladakh.
Since 1947, when the princely state of J&K acceded to India, these three were regions that made up constituent parts of the state, in addition to some areas that now lie in Pakistan and to which India from the beginning has laid juridical claim as J&K’s last princely ruler, Hari Singh, acceded the totality of his dominions to India.
With New Delhi itself engaging in the constitutional destruction of J&K state that existed within its territorial jurisdiction, India's case for the return of the regions of J&K under Pakistan’s illegal control so that the original state of J&K may become a unified entity under its sovereign jurisdiction, is now arguably depleted.
Different regions and territories — with their own, sometimes unique, history of becoming a part of India — were made states of the Union in 1947 to constitute the Union of India. The process in each case marked evolutionary pathways for the making of today’s India. These processes are at the core of the basic structure of the Constitution, which underpins — among other key aspects — the relationship between the Union and the states.
The Centre’s decision to strike at the heart of Article 370, and to dissolve J&K state, thus strikes at the basic structure of the Constitution. It is in order to prevent such a perversity from being enacted that the dissolution of a state of the Union is not permissible, although the borders of a state may be subject to alteration.
It is wholly deplorable for this reason that the Supreme Court should postpone hearing by two months writs challenging the decision of the present government to alter the constitutional status of J&K wholesale. The unconscionable delay, in allowing the UTs of J&K and Ladakh to be formed unhindered, has indeed underwritten a constitutional travesty.
Regrettably, a member of the Constitution Bench, echoing the government’s concerns, said “security” considerations must be kept in view while examining the case. This is unlikely to find validity in law.
Indeed, the facts on the ground also give the lie to the government’s view that a key reason for overturning Article 370, and creating two new UTs, was that the very existence of J&K state was giving rise to terrorism, although it had never explained how.
In the past three years, terrorism had virtually ended in J&K. But since the ending of Kashmir’s special status it has gained a fresh lease of life, as can be seen from the brutal killings in recent days, although every town and village in the Kashmir Valley is crawling with armed soldiers. It is strange that terrorists have a free run in the presence of so many soldiers. What are the security forces and their political masters up to?