Kashmir: Two Years On, the Judiciary is Standing Over the Bonfire of Constitutionalism

Removing Article 370 was aimed at fulfilling the BJP’s long-time political demand, but the demotion of the state to a Union territory was an exercise in malicious politics.

Two years after the end of Article 370 of the constitution – which gave giving special rights to Jammu and Kashmir – and the demotion of the state to a Union territory, all we have is a bonfire of vanities. 

Expectations that militancy will be defeated in quick order have been belied by events on the ground. Almost every day we hear of  encounters in one or the other part of the region. Worse, the militancy, once dependent on Pakistani jihadis and weapons, has become stubbornly local.

In 2020, an estimated 163 locals were recruited into the insurgency, this year so far the estimate is 82.

Investment from other parts of the country has yet to flood into the Valley. Indeed, no person from outside the state has bought land in the UT, according to information provided by the Union Ministry of Home Affairs in March this year.

As for the return of Kashmiri Pandits, the Union government keeps putting out dodgy figures of those who have returned, but the reality is that in the present conditions few are likely to do so.

Also read: What about the Kashmiri Pandits? – Thirty Years Later, Make the Question Count

The conversion of the state to a Union territory and the removal of Article 370 were dubious decisions. The constitution has provision for promoting a Union territory to a state, but whether it can demote a constituent State of the Indian Union is questionable. 

As has been argued, if one state can be demoted to a Union territory, so by the same logic can the other states. This would lead to the absurdity of an India as a Union of Union territories, rather than a Union of states, which is basic to the structure of the Indian constitution.

As for the scrapping of Article 370, this was done through a clear sleight of hand. Under the constitution, the change could have been made by the J&K constituent assembly before it was dissolved in 1957, but it wasn’t. There was still, arguably, the option of doing it with the concurrence of  the state legislature. But the legislature itself was dissolved in November 2018, under dubious circumstances, well before its term had ended.

The Modi government took the specious plea that approval could be granted by the governor who, as is well known, is a creature of the Union government. Just how much legitimacy the action had became evident when large-scale repression was unleashed right after these decisions. Former chief ministers, ministers and party leaders were kept under detention for more than a year. Tens of hundreds were incarcerated to prevent protests and more than a thousand people still remain behind bars.

What the Union government did on August 5, 2019 was part of a political project. Removing Article 370 was aimed at fulfilling the BJP’s long-time political demand, but the demotion of the state to a Union territory was an exercise in malicious politics.

Also read: A Patch-Up Attempt on Kashmir Will Not Restore What Is Lost

Neither has basis in law or the constitution and it is surprising that a five-judge bench of the Supreme Court has yet to rule on some two dozen petitions challenging the validity of the J&K Reorganisation Act of 2019 (that turned the state two Union territories) and the Presidential Order nullifying Article 370 and 35A of the constitution.  

The apex court seems to feel that time is not of the essence and has gone on record as saying that “the Supreme Court can always turn the clock back.”

But in the meantime, the Union government – acting through the UT administration – is busy creating facts on the ground through executive fiat to undermine any future court decision. More germane is that the people of the region are having to make do with the authority of unelected officials when, under the Indian constitution, they are entitled to a government that they have elected.

The Union government now says J&K could again be promoted to statehood and has initiated some kind of a political process by inviting top Kashmiri leaders for a meeting in New Delhi in June. There are few signs of any follow up.

This is not surprising. It is usually difficult to square a circle.

Yet, that is exactly what the Modi government is attempting to do after trashing the constitution and the legitimate rights of the Kashmiri people. 

Manoj Joshi is a Distinguished Fellow, Observer Research Foundation, New Delhi.