Kashmir and the Indian Supreme Court

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By Abdul Basit

It has now been more than two years that Indian-administered Jammu and Kashmir was stripped of its special status. In an unprecedented move, the state was also split into two union territories.

Many in India have also strongly condemned New Delhi’s unilateral action, terming it not only unconstitutional but also politically dangerous. It was argued that instead of winning the hearts and minds of Kashmiris, Prime Minister Modi had added fuel to the fire. Even pro-India Kashmiris had now been alienated. In this way, India lost its traditional constituency particularly in the Kashmir Valley.

Those who felt strongly about the special status and considered its revocation an affront to Kashmiris’ fundamental rights also filed petitions in the Indian Supreme Court. There are now a total of 23 petitions, pleading the Supreme Court to declare relevant constitutional amendments as ultra vires. However, the Indian Supreme Court is yet to start hearing these petitions.

This is not the first time the Kashmir issue has been brought to the Supreme Court. In fact, the Bharatiya Janata Party (BJP) never disguised its intentions to ‘right the historical wrong” by the first Prime Minister of India, Jawaharlal Nehru. The election manifesto of the BJP both in 2014 and 2019 committed the party to bring Indian-administered Kashmir in line with other Indian states.

Indian Supreme Court, New Delhi

Article 370 of the constitution entitled Kashmir to a special status with its own flag and its own constitution. In tune with the so-called instrument of accession of 27 October 1947, Kashmir conceded only foreign, defense and communications to the Union.

The BJP particularly considered Article 35A of the Indian constitution that barred Indian nationals to buy properties in Kashmir or become permanent residents of Kashmir with the right to vote in local elections, as both anti-nationalist and anti-democratic.

Accordingly, when the BJP was elected in May 2014, it had decided to pursue its long-held agenda through the courts of law.

In 2015, a petition was filed in the Jammu and Kashmir High Court, pleading that the restrictions as stipulated under Articles 370 and 35A should be declared null and void. However, the High Court in its 60-page long judgement on 9 October 2015, had ruled that Article 370 had assumed a place of permanence in the Constitution and that it was beyond “amendment, repeal or abrogation.”

The Court argued that since the Constituent Assembly of Jammu and Kashmir did not recommend revocation of Article 370 before its own dissolution in January 1957, the provision had thus assumed permanency. The Court also ruled that “Jammu and Kashmir, while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other princely states.”

There were over 500 princely states in the subcontinent at the time of independence which were given the right to either join India or Pakistan. As most princely states were with the Hindu majority, it was understandable that they had decided in favor of India. Kashmir with its overwhelming Muslim majority and geographical proximity with Pakistan should have become a part of Pakistan but for the Hindu ruler, Maharaja Hari Singh, who under pressure from the Indian leadership, eventually capitulated, leaving the two countries Pakistan and India in seemingly intractable hostility.

As for Article 35A, the Court said that the provision gave protection to existing laws in force in the State. Hence, this article was also permanent and could only be amended or repealed along with Article 370. And that was not possible after the dissolution of the Kashmir Constituent Assembly.

Be that as it may, the BJP was never to give up its long-held agenda. It finally brought the matter to the Indian Supreme Court. On 4 April 2018, the Supreme Court in its landmark judgement upheld the special status of Kashmir. The Court said, “Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible.”

Having exhausted all legal possibilities, the BJP government under Prime Minister Narendra Modi was left with no option but to fiddle with the Constitution through the parliament. As a first step, governor’s rule was imposed in Kashmir in June 2018. After six months, the state was brought under the Presidential rule, paving the way for the Indian cabinet to take all policy decisions in respect of Kashmir.

As of now the ball is once again in the Indian Supreme Court, it remains to be seen how the apex court handles the petitions against the highly controversial constitutional amendments. The Supreme Court had already made its position clear on Articles 370 and 35A beyond a shadow of doubt. It will be interesting to see if the Court sticks to previous judgment or the larger bench overturns it in the so-called larger interest of the Union.

Most Kashmiris are apprehensive. They find it difficult to understand why the Supreme Court is not showing any sense of urgency on such a critical matter. By delaying hearing of the petitions, the Supreme Court is seen to be helping the government to consolidate the new but illegal normal.

It seems Kashmiris are not likely to get any relief from the Indian Supreme Court. Their 74-year long quandary will likely continue and so will India-Pakistan hostility.

(Abdul Basit is the president of Pakistan Institute for Conflict and Security Studies. He was previously Pakistan’s ambassador to Germany and Pakistan’s High Commissioner to India. Twitter: @abasitpak1)