Justice (r) Manzoor Gilani, Muzaffarabad AJK*
The Supreme Court of India behaved like the Supreme Court of Pakistan in accepting the supremacy of the central government in upholding presidential orders, that affect the lives of more than 10 million people. The Pakistani apex courts have been known for similarly upholding laws and approving martial law provisions.
The Supreme Court of India, after hearing seventeen eminent jurists for sixty hours, has taken a view on a bunch of petitions filed four years ago against the abrogation of Article 370 by Constitutional Orders 272 and 273, extending the Indian Constitution as a whole to the state of Jammu and Kashmir, with all the amendments made therein thereafter, on August 5, 2019. It has thus struck down the constitution extension to J&K order 1954. This was the only order which was extended with the approval of the constituent Assembly of State before its dissolution in 1957.
The J&K State Reorganisation Act, 2019 divided the state into two Union Territories. The five-judge bench upheld the abrogation of Article 370 and the extension of the Constitution of India to the state and the division of the state into two Union Territories through two separate but concurrent orders on December 11, 2023.
The crucial issues that the court had to decide were whether Article 370 could be overridden by Constitutional Orders 272 and 273 and whether the reorganisation of the state by dividing it into two Union Territories was constitutional or not. The 476 pages of the judgment put the reader in a state of labyrinth. Every line of argumentation favours the ruling BJP and reinforces its manifesto rather than the scheme of the Constitution or the contentious issues argued before the court.
Similarly, the issue of reorganisation and creation of Union Territories from within the State was left to be resolved “in any other appropriate case”. As if this was not the appropriate case it shook the entire world and the basis of the relationship between state and union. The Solicitor General’s statement of restoring statehood but retaining Ladakh as a Union Territory as ipso facto was accepted. Looks like a pre-arranged consensus between the court and the respondent government. How is statehood complete without Ladakh? It is astonishing.
The court did not indirectly approve the amendment of Article 370 by adding and applying definitions, replacing the ” Governor” with the “Sadr-i-Riasat and the State Government” and the “Legislative Assembly” with the “Constituent Assembly” through Article 367 of the Constitution. Despite this, the abolition of Article 370 was upheld under its sub-Article 3. It is so strange that the building of Article 272 is not approved but measures under this Article are upheld.
The Court upheld the impugned measures of the Government of India which wiped out the 174-year-old historic State of Jammu and Kashmir, divided it into two Union Territories, and deprived the indigenous people of all the rights that they enjoyed since the British era and which were guaranteed under the “ secular, democratic, Republican Constituent Assembly of India” “ after protracted negotiations between the political leadership of the state and the central government in the Constituent Assembly of India, culminating in Article 370 of the Indian Constitution in line with the Instrument of Accession to India, which itself was subject to the will of the people of the state as pledged by Governor General of India Lord Mountbatten.
Absence of consultation and trust
The egregious aspect of this constitutional violation of cancelling the special status of the state is that it was done in the absence of the state assembly when the state was under President’s rule for more than four years and was governed at the local level by a centrally appointed Left Governor. It was a blatant violation of Article 3 and the worst betrayal of a federating unit.
No national or regional state party was consulted or brought on board except the brute majority party in the Government at the Centre which had vowed from day one to deprive the state of its status guaranteed by the Constituent Assembly of the country under the leadership of greats like Mahatma Gandhi, Pundit Jawahar Lal Nehru, Dr Ambedkar, Maulana Azad, Maulana Hasrat Mohani, Sheikh Muhamad Abdullah and the others.
The Constitution is next to the Bible or any other religious book that authorises the creation of state machinery and builds the image of the state locally and internationally, not like municipal or commercial laws. It must be amended with the same spirit and wisdom as the Constituent Assembly does.
Jammu and Kashmir, particularly the Kashmir Valley, was a centuries-old state, the cornerstone of the dispute, with local, national, and international fame and name for its secular character, against the backdrop of which its unchallenged leader took the unpopular and legally unconstitutional decision to join India.
Justice Sanjay Kishen Koul, a senior member of the bench with another learned colleague, has very wisely summarised this in his separate but concurring order with a brief history of the state beginning with “sati sar” till its accession to India as; “This was against the backdrop that the local Muslim leadership of the Valley was not in favour of the two-nation theory, and the annexation of the Valley to Pakistan was seen as inevitable. In the end, the Valley made a conscious decision to join India and negotiate autonomy under the asymmetric federal model. The ideological symmetry of the National Conference and the Indian National Congress was an important factor in this.”
This trust was blatantly abused.
The learned judge erred in the conclusion to keep his words, but he dared to recognise the wrong done in the Valley, which was to be redressed by setting up a “Truth and Reconciliation Commission”, even if the remedy was to undo the travesty of the Constitution to be followed by the proposed Commission.
I will conclude my column with a summary of his order.
The orders quashing Article 370, the Constitution of the State followed by the extension of the Constitution of India, and the division of the State into two Union Territories are justified and legitimised by two separate but concurring judgments, one authored by Chief Justice Chundrachud and two other judges and the other by Justice Sanjay Kishen Kaul, concurred in by one of the other three judges.
They differ in details and reasons but agree on the conclusion.
Judge Koul’s discussion of the history of the state, the political history and the accession process is not consistent with his conclusion, he is due to retire in a few days. Pre-retirement favour may be showered by post-retirement benefits.
*Justice (retd) Syed Manzoor Hussain Gilani is a former acting Chief Justice of the Supreme Court of Pakistan-administered Jammu and Kashmir.
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