India’s Supreme Court pronounces its verdict on the withdrawal of Article 370 pertaining to Jammu & Kashmir
15-12-2023
Announcing its much anticipated verdict on the 5 August 2019 revocation of Article 370 of India’s Constitution by the Indian government, a five-judge Constitutional bench of the Supreme Court on 11 December ruled that the Article, which had granted Jammu & Kashmir (J&K) special status and autonomy of internal administration and allowed it to make its own laws in all matters except finance, defence, foreign affairs and communications, had actually been a “temporary provision”, and hence removing it in 2019 was constitutionally valid. Article 35A, a further provision that had been added to Article 370 in 1954, had empowered state lawmakers to ensure special rights and privileges for permanent residents of J&K. Along with the repeal of Article 370 in 2019, Article 35A had also been scrapped, and that decision of the Indian government has also been upheld by the Supreme Court.
Explaining the verdict, the Indian daily The Hindu reminded on 12 December that the five-judge Constitution bench comprising the Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant was deciding on a batch of petitions challenging the abrogation of Article 370 and the bifurcation of J&K into two Union Territories. It continued that the bench “on Monday unanimously upheld the power of the President to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganisation of the State of Jammu and Kashmir (J&K) into two Union Territories and denuded it of its special privileges. It reasoned that Article 370 was only a ‘temporary provision’ to ease the accession of the then princely State to the Union at a time of internal strife and war. In the lead judgment, Chief Justice of India (CJI) D.Y. Chandrachud, writing for himself, Justices B.R. Gavai and Surya Kant, pointed out that J&K had divested itself of ‘any element of sovereignty’ after the execution of the Instrument of Accession to the Union in October 1947. Justices Sanjay Kaul and Sanjiv Khanna concurred in their separate opinions. The special privileges of J&K as well as a separate Constitution were held to be a mere feature of ‘asymmetric federalism’ and not sovereignty”.
Elaborating further, The Hindu wrote, “The court held that Article 370 was meant to be a ‘temporary provision’ for two primary reasons. First, it served a transitional purpose which was to make an interim arrangement to establish a Constituent Assembly of J&K which would draft the State Constitution. Second, it was meant to ease the integration of J&K into the Union of India in the light of the prevailing war-like situation in the State back in 1947. Relying on a textual interpretation, the court pointed out that the provision is placed in Part XXI of the Constitution, titled ‘Temporary, Transitional and Special Provisions’ which shows the intention of the Constitution framers. ‘The provisions were transitional so as to facilitate the transfer of power from the institutions of governance which were functioning under the Government of India Act 1935 to the duly constituted institutions which would take over after the commencement of the Constitution’, it reasoned”.
Underscoring that J&K became an integral part of the territory of India with the adoption of the Indian Constitution on January 26, 1950, the Chief Justice observed — “Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary”. The Supreme Court further directed that J&K’s statehood be restored as soon as possible, and that elections to the Legislative Assembly of the state be held by 30 September 2024.
The Supreme Court ruling came as a major victory for the Bharatiya Janata party (BJP) government led by Prime Minister Narendra Modi. The BJP had been promising to revoke Article 370 for years, and when it finally decided to do so in 2019, it had given the justification of bringing the security situation in J&K, which had been long plagued by Pakistan-sponsored cross-border terrorism, under control. The 2019 decision was, to that extent, the fulfillment of a campaign promise to end Article 370.
Reacting to the verdict, JP Nadda, the President of the BJP said that the “Bharatiya Janata Party welcomes the decision given by the Honorable Supreme Court regarding Article 370. The Constitutional Bench of the Supreme Court has upheld the decision given to remove Section 370 and 35A, its process and objective. The government of Honorable Prime Minister @narendramodiji has done the historic work of including Jammu and Kashmir in the main ideology of the country, for this I and crores (tens of millions) of our workers express our heartfelt gratitude to the Prime Minister”.
Nadda’s predecessor as BJP President and presently Union Home Minister Amit Shah said that, “I welcome the Honorable Supreme Court of India's verdict upholding the decision to abolish #Article370. On the 5th of August 2019, PM Modi took a visionary decision to abrogate Article 370. Since then peace and normalcy have returned to J&K. Growth and development have brought new meaning to human life in the valley once torn by violence. Prosperity in the tourism and agriculture sectors has raised the income levels of the residents of both Jammu, Kashmir and Ladakh. Today, the Supreme Court’s verdict has proved that the decision to abrogate Article 370 was completely constitutional”.
The reaction of the main opposition Congress party was more measured and nuanced. Addressing a press conference along with party colleague Abhishek Singhvi, senior Congress leader P. Chidambaram said that “The judgment of the Supreme Court has decided many issues but has left open some issues that are also vitally important. It has also held as ultra vires how Article 367 was invoked to amend a part of Article 370 … Prima facie, we respectfully disagree with the judgment on the manner in which Article 370 was abrogated. We reiterate the CWC (Congress Working Committee) resolution of August 6, 2019, that Article 370 deserved to be honoured until it was amended strictly in accordance with the Constitution of India”.
Asked whether the Congress would restore Article 370 if it was voted to power in 2024, Chidambaram said, “We have never asked for restoration of Article 370. Read our CWC resolution. We said it must be honoured until it is amended in accordance with the Constitution”. Chidambaram added, “The Supreme Court has held that Article 370 was abrogated in accordance with the Constitution. That is the law of the country. And all of us are bound by the law of the country. But we can have opinions. But that is the law”. He added that there was no debate that the provision was temporary. “The debate at that time was whether the temporary provision can be removed except in accordance with the Constitution”, said the Congress leader. Another Congress leader Adhir Ranjan Chowdhury was quoted in the media as saying that “Article 370 was a temporary measure. We were for the abrogation of it. The Centre should conduct elections in J&K as soon as possible and also restore full statehood”.
The reactions of political leaders of J&K encompassed a range of feelings from disappointment to resigned acceptance. Farooq Abdullah, a three-time former Chief Minister of J&K and the President of the National Conference (NC) regional political party, and whose father Sheikh Mohammad Abdullah was one of the architects of Article 370, reacted angrily outside the Indian parliament when he was asked about the decision. “Let Jammu and Kashmir go to hell, that is where you have taken it”, he said, adding “You want to win hearts of people, but how will you win hearts of people when you do things that push people away from you”. Farooq Abdullah’s son and NC Vice President Omar Abdullah said that he was “Disappointed but not disheartened. The struggle will continue. It took the BJP decades to reach here. We are also prepared for the long haul”.
Sajad Lone, the chief of the People’s Conference (PC) party said that “The Supreme Court verdict on Article 370 is disappointing. Justice yet again eludes the people of J and K. Article 370 may have been legally obliterated but will always remain a part of our political aspirations. In the case of statehood the Supreme Court sidestepped even commenting on it, thus protecting the entire country from any future misuse, by citing precedence. Yet the same misuse was subtly endorsed in J&K. Let us hope at a future date Justice wakes up from its slumber of pretence”. Ghulam Nabi Azad, another former Chief Minister of J&K, said “It (the court verdict) is sad and unfortunate. But we have to accept it”.
Mehbooba Mufti, People's Democratic Party (PDP) chief and also a former Chief Minister, said that “No verdict is final, even if it is from the Supreme Court. This is a political fight which has been going on for the past several decades. Our people have given huge sacrifices for achieving dignity of life and we will not leave it unfulfilled”. She further wrote, “Today an unconstitutional and illegal act that took place in the Parliament was declared legal. It is nothing less than a death sentence not only for Jammu and Kashmir but for the idea of India. The SC has said that the Article 370 is temporary, which is why it was removed. This is not only our defeat but also the defeat of the idea of India. Don’t lose heart, don't lose hope. Jammu and Kashmir has seen a lot of ups and downs. The SC verdict today is a halt, it is not our destination. Don’t make the mistake of considering it as the end. Our opponents want us to lose hope and accept defeat. But that should not be the case”.
As The Guardian pointed out, Kashmir has long-remained the most sensitive pressure point in India and Pakistan’s acrimonious relationship, and in the 1990s a Pakistan-sponsored militancy emerged in India-administered J&K. The state has battled the issues of terrorism and militancy ever since. In 2019, the dilution of Article 370’s status had triggered Pakistan to downgrade diplomatic ties, cease all trade with India, and suspend cross-border transport services. Pakistan’s reaction to the Indian Supreme Court’s judgment was, therefore, along expected lines. Pakistan’s caretaker Foreign Minister Jalil Abbas Jilani said at a press conference in Islamabad that “The judgment is yet another manifestation of the pliant judiciary under India’s ruling dispensation. Pakistan categorically rejects the judgment announced by the Supreme Court of India on the status of Indian Illegally Occupied Jammu Kashmir. Jammu and Kashmir is an internationally recognised dispute which remains on the agenda of the United Nations Security Council for over seven decades”. Claiming that India did not have the right to make “unilateral decisions”, Jilani concluded that “The final disposition of Jammu and Kashmir is to be made in accordance with the relevant UNSC resolutions and it is to be made in accordance with the aspiration of the Kashmiri people”.
In other international reactions, the General Secretariat of the Organisation of Islamic Cooperation (OIC), which periodically comments on such issues, criticized the Indian Supreme Court’s verdict. It said, “OIC General Secretariat expresses concern over the Indian Supreme Court’s Judgment Upholding the Unilateral Actions Taken by the Indian Government on 5th August 2019 that Stripped the Special Status of the Territory of Jammu and Kashmir”. The General Secretariat also reaffirmed its solidarity with the people of J&K. India’s Ministry of External Affairs (MEA), however, was quick to call out the OIC for pushing an agenda driven by Pakistan. The MEA’s spokesperson rejected the OIC’s statement and termed it as “both ill-informed and ill-intended”. In a clear reference to Pakistan, the MEA spokesperson added that the OIC makes such remarks at the behest of a “serial violater of human rights and an unrepentant promoter of cross-border terrorism”, and that this renders its statement even more questionable.
Perhaps the most important reaction to the Supreme Court’s decision was that of Indian Prime Minister Narendra Modi – after all, the August 2019 decision to remove Article 370 was essentially his. Modi said that “Today's Supreme Court verdict on the abrogation of Article 370 is historic and constitutionally upholds the decision taken by the Parliament of India on 5th August 2019; it is a resounding declaration of hope, progress and unity for our sisters and brothers in Jammu, Kashmir and Ladakh. The Court, in its profound wisdom, has fortified the very essence of unity that we, as Indians, hold dear and cherish above all else. I want to assure the resilient people of Jammu, Kashmir and Ladakh that our commitment to fulfilling your dreams remains unwavering. We are determined to ensure that the fruits of progress not only reach you but also extend their benefits to the most vulnerable and marginalised sections of our society who suffered due to Article 370. The verdict today is not just a legal judgment; it is a beacon of hope, a promise of a brighter future and a testament to our collective resolve to build a stronger, more united India. #NayaJammuKashmir”.
