AA Edit | SC Upholds Loss of Special Status for Jammu & Kashmir

The Asian Age.

Opinion, Edit

The Supreme Court’s judgment upholding the abrogation of Article 370, a temporary provision in the Constitution of India

The Supreme Court’s judgment upholding the abrogation of Article 370. (Representational Image)

The Supreme Court’s judgment upholding the abrogation of Article 370, a temporary provision in the Constitution of India which granted a special status to the state of Jammu and Kashmir in a particular historic context, brings to finality a dispute that has lasted over seven decades.

The court has pointed out that there has been a continuous exercise of power by the President under the Article 370 and this indicates that the gradual process of constitutional integration was ongoing. The declaration of the President making the Constitution of India applicable in the entire state of J&K through a constitutional order is a culmination of this process of integration and “as such is a valid exercise of power”.

The court has also held that the state enjoyed no element of sovereignty after the Instrument of Accession was signed and the then ruler issued a proclamation on November 25, 1949, which reflected “the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India — to her people who are sovereign”.

It is welcome that the apex court has gone into the constitutional and historic contexts of the J&K’s accession with India and declared that the process is now culminated and over.

The NDA government can take justifiable pride in successfully implementing one of its electoral promises for decades to do away with Article 370. That it has come out of the judicial review process in flying colours would add to the alliance’s campaign for the ensuing Lok Sabha election. While ruling in favour of the government’s action, the court has, however pointed out that a part of the constitutional order number 272, which reinterpreted the word ‘constituent assembly of Jammu and Kashmir’ as ‘legislative assembly of the state’ ultra vires the Constitution and held that an interpretation clause cannot be used to bypass the procedure laid down for amendment. This is significant in that upholding the government’s taking a circuitous route to reinterpret constitutional terms would have prompted governments to follow a similar path to hollow out important constitutional guarantees which form the foundations of our Constitution.

The court’s refusal to decide on the constitutional validity of the J&K Reorganisation Act, 2019, which reconstituted J&K into two Union territories, however, is baffling. The court has, of course, recorded the assurance given by the Centre that J&K will be returned to its statehood.

The court has also directed the election commission to conduct elections in the state before September 30, 2024. But the key question is whether the government was within its powers to do so and the impact of such an action of the Centre on the federal principles that guide this nation.

That the court took more than four years to decide on a critical constitutional question which impacted the lives of millions of people and when it chose to do so, it opted to remain silent on a key question is unsettling.

The court has suggested the setting up of a truth and reconciliation commission to heal the wounds of four decades of history of human rights violations by state and non-state actors. It may perhaps sound innocuous for a set of people, but the suggestion has the strength of history and the principles of democracy.

The unrest in the state was fanned by the neighbour, but its genesis had at its core people’s distrust in the processes and institutions of democracy. India’s Constitution is a faith article; the expression of faith of its people in the principles and processes of democracy. The court may hold that the constitutional process of Jammu and Kashmir’s integration with the Union of India may be over, but the real integration must happen in the hearts and minds of the people. A healing process can make it happen.