Machiavelli who gave to the world the unscrupulous political theory of ‘ends justifying means’ wrote, ‘Never attempt to win by force what can be won by deception’. The words best sum up the Supreme Court verdict upholding the reading down of Article 370. Neither the legalities, nor the historical facts matter. They can be distorted or discarded at will. At a glance, the verdict appears to be based on a tangled web of legal interpretations of Kashmir’s history and its historic compact with India sealed and cemented by Article 370. Replete with ambiguities and lack of logic, it is simply an endorsement and approval of a flawed political action taken on August 5, 2019, and thus is a grave injustice to both the people of Jammu and Kashmir whose loss of special privileges have got the seal of legitimacy as well as to the Indian democracy, whose federal principles as enshrined in the Constitution have been jolted.
The significant operative conclusions of the verdict are that Article 370 was temporary and that the action of the government through a presidential order are valid. However, no reasonable explanations have been given to arrive at such conclusions. Article 370 was the constitutional bridge that integrated Jammu and Kashmir into India and was inevitable in view of this state’s exceptional history and the circumstances under which it acceded to India. At the same time, it offered certain protections and granted special status to Jammu and Kashmir. It was meant to be temporary only till the J&K Constituent Assembly could ratify Article 370 and adopt it while framing a separate constitution for the state. J&K Constituent Assembly’s approval of the same sealed the finality of Article 370 and the J&K’s special status, its own constitution and flag. The court’s contention that Article 370 was a temporary provision till the J&K Constituent Assembly was disbanded, after which the state would have been fully integrated, defies any logic. J&K Constituent Assembly’s jobs was to draft a separate constitution and take a call on accepting or rejecting Article 370. The notion that such an exercise was undertaken only to finally discard 370, special status and J&K Constitution reflects not just ignorance. It represents absurdity.
While the court holds the amendments made to Article 370 by taking recourse to Article 367 as surreptitious and disastrous and declares them ultra vires of the Indian constitution, it concludes that there is no malafide in the presidential orders. If the method is illegal, on what legal grounds can the action be justified? The court merely legitimizes the actions on grounds that even though due process was not followed, there was no ‘intention to deceive’. There are evident signs of deception in which the J&K Reorganisation Act, which de-operationalised Article 370 and dismembered Jammu and Kashmir into two union territories, was tabled and passed in the parliament through stealth and by turning Jammu and Kashmir into a vast prison under military jackboots. The court also refused to adjudicate on the legality of demoting J&K into two union territories under Article 3 of the Constitution which pertains to altering the boundaries of any state, not demoting it.
By legitimising the writ of a majority government in deciding the political and legal framework of Jammu and Kashmir which was under presidential rule, without consultation with the representatives of Jammu and Kashmir, the verdict deals a blow to the strength and vitality of Indian federalism and sets a wrong precedent. Even more wronged are the people of Jammu and Kashmir, whose special privileges and special identity within the Indian Constitution has been eroded. Needless to point out that Jammu and Kashmir is a sensitive and restive state where historic blunders of the past have already created a strong trust deficit between its people, particularly from Kashmir Valley, and New Delhi. An unjust verdict with far reaching consequences has broken the last vestiges of trust in Indian democracy.
The far crueler joke is that instead of granting justice, the verdict makes a pretense of offering sops to the people of Jammu and Kashmir by talking about statehood restoration and elections. While this was not asked in the petitions, the court has not offered any clearcut directions and timeline even to this extent and left the ball vaguely in the government’s court. Elections are a democratic norm and should not have required the apex court’s approval. Even more paradoxically, by interpretation of the same law, the court has legitimized the case of statehood for the union territory of Jammu and Kashmir, not for Ladakh. One of the judges batted for Truth & Reconciliation Commission (TRC) as an antidote for the injustices done to people of Jammu and Kashmir across the board. TRC is understood to be a vital tool in bringing reparations in a war-torn society but its effectiveness is hinged to conflict resolution – all doors of which have been sealed by taking away special protections that the people of Jammu and Kashmir enjoyed. Yet, if a TRC in Jammu and Kashmir can still perform the magic of addressing the wrongs, let the government begin by at least acknowledging the Article 370 related deceptions and the injustices perpetrated on the people to maintain an illusion of peace and normalcy.
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