Despite being from a party like BJP, Atal Bihari Vajpayee is often evoked when speaking of Kashmir. His phrase “Kashmiriyat (Identifying with the culture and people of Kashmir), Jamhooriyat (Democracy), and Insaniyat (Humanity)” implies the need to keep in mind its uniqueness within the Indian subcontinent, its denizens and with a human touch. These words laid down how he intended to deal with Kashmir, which has a long and chequered history. Being a predominantly Muslim state located strategically, sharing a border with Pakistan and China, Jammu & Kashmir(J&K) has suffered the most because of insurgency and militancy.  

The Article 370 of the Indian Constitution conferred it a special status. It was the collective decision of the first Nehru cabinet comprising Sardar Patel and Shyama Prasad Mukherjee, the founder of Jan Sangh, considering the sensitivity and volatile war situation and the impending reality of J&K either acceding to Pakistan or remaining independent of the Union of India.

The Constitution Order 272, dated 5 August 2019, allowed the Union government to amend Article 370 by suspending the Constitution Order (Applicable to J&K) of October 1954 and replacing the words “Constituent Assembly” with “Legislative Assembly” in clause (3) of the Article 370. The next day, the President issued another Constitution Order 273, based on the Resolution of Parliament, revoking the special status of J&K. And on 9 August, Parliament passed the Jammu and Kashmir Reorganization Act, which bifurcated the State into two Union Territories – Jammu and Kashmir and Ladakh. All these path-breaking changes, with far-reaching consequences, were made in great haste without scrutiny by the standing committees of the Parliament or any discussion and in gross violation of the existing rules and procedures. It is important to remember that the J&K Assembly was dissolved, and the newly created two union territories were brought under the President’s rule in December 2018.

As many as 23 petitions were filed in the Supreme Court challenging the way Article 370 was abrogated and the State of J&K downgraded. A five-judge constitution bench, comprising Chief Justice D.Y. Chandrachud, Justices S.K. Kaul, S, Khanna, B.R. Gavai and S. Kant, heard the petitions and delivered a concurring verdict on 11 December 2023, after four years and four months, upholding the revocation of the special status of J&K. The Supreme Court either ignored or side-stepped certain undeniable facts, while delivering the verdict.

First, the Instrument of Accession signed by Maharaja Hari Singh of J&K in October 1947 was the same as that signed by all other princely states integrated into the Union of India. Thus, as the author says in his book “Nehru and World Peace”, J&K became an integral part of India. However, special status was conferred to J&K under Article 370, considering the extraordinary situation that prevailed following the partition of India. And all the provisions concerning the State of J&K were temporary, as the said Article stated. Jawaharlal Nehru himself expressed in 1963 that the special status was transitory. Nonetheless, Article 370 was intended to operate until Parliament removed it under the powers granted by Article 368 and without prejudice to the clauses in 370. 

Second, the procedure laid down for changing the provisions of the Constitution needed to be followed while abrogating Article 370 and revoking the special status of J&K. Article 368 provides the procedure for amending the Constitution. The Union government amended Articles 367 and 370 without following the procedure. Summarily imposing the President’s Rule preliminary to the intended revocation of special status without any reference to the State was mala fide. The Apex Court’s message that the Parliament can do any act with irreversible consequences while a state is under the President’s Rule undermines federal principles and the Constitution’s basic structure, as enunciated by the Court itself. 

Third, the bifurcation of a state into union territories is not permitted by the Article 3 of the Constitution. The Article only provides for the “Formation of new States and alternation of areas, boundaries or names of existing states.” It does not provide for downgrading an existing state into union territories. That this is done for the first time in the case of J&K is profoundly humiliating and hurtful to the State and its people. The Center gave no reason for downgrading J&K into Union Territories, which had nothing to do with revoking the State’s special status. The Supreme Court’s failure to deliver its ruling on whether the Constitution permits the reorganization of J&K into two UTs is an astounding example of judicial evasion. Shockingly, the Court chose not to adjudicate a question that arose directly from using Article 3 of the Constitution for the first time to downgrade a State. It undermines federalism and democratic processes to a frightening degree” (Editorial, The Hindu 12/12). Lately, the Apex court has been avoiding adjudication of controversial questions. 

Fourth, the Court has endorsed the loss of J&K’s historical and cultural identity, as evidenced by the downgrade and stripping away of its special status. The Court’s verdict declares that J&K is like any other state in the Indian Union, rejecting its uniqueness, thereby depriving it of even the special privileges granted to other states, particularly Sikkim and Assam and the other Northeastern states such as Nagaland, Mizoram, Manipur and Arunachal Pradesh under the Article 371 to preserve their linguistic and cultural identity. The Court provided no alternative measures to protect J&K’s historical and cultural identity while stamping its approval of the Centre’s action of abrogating the State’s special status. After this verdict, nothing prevents the people from the rest of the country from migrating to J&K, owning property, settling in the State and erasing its scenic beauty and distinct character, a ‘heaven on earth’.  

Though the abrogation of the special status may have put the question of the status of J&K at rest, it is doubtful whether the people of the State would honour the verdict. The wounds are too severe to heal. Mehbooba Mufti, reacting to the verdict, said, “It is nothing less than a death sentence not only for J&K but for the idea of India as well.” Pratap Bhanu Mehta writes, “The SC, in this judgment has, once again, obliged ... The Court is trying to facilitate the government’s new approach to Kashmir, without reassuring anyone that it has the integrity to uphold the Indian Constitution, in whose name it speaks in full measure” (IE 12/12). 

Dr G. Ramachandram

A Professor of Political Science & retired Principal; the only scholar who holds a doctorate on Pandit Nehru; his Magnum Opus 'The Trial by Fire: Memoirs of a College Principal' is called a 'saga of virtuous struggle versus evil'.