Justice (retd.) Manzoor Gilani, Muzaffarabad AJK*
The unanimous judgement of the Indian Supreme Court on Article 370 is outrageous because it justifies without remorse what has been done and upholds the impugned orders on grounds like those argued by the current rulers and their supporters on the streets. This playing to the streets looks like the other judgement more than a decade ago, where the court delivered a judgement mentioning phrases of “…to satisfy the collective conscience of the majority.”
A deeper look at the judgement concludes that the learned judges have refused to take cognisance of the impugned orders and test their legality on the touchstone of relevant constitutional provisions, holding that “political matters are beyond the jurisdiction of the court.”
The court concluded that “all decisions and measures taken by the executive of the Union while the article is in force cannot be challenged.” Why not, when the historical position of the State, its people and their rights guaranteed by the Constitution are being wiped out forever, one by one or in one go? Does any word of Article 32 or 226 of the Constitution prohibit the court from doing so? Does Article 356 authorise Parliament to ram through the rest of the Constitution and make relevant provisions redundant? Does it allow the courts to rewrite the Constitution or enforce it as it is? Strange enough!!!
The court has deliberately avoided taking cognisance of the drafts emanating from thousands of pages of official documents leading to the inevitability of Article 370 brought before it by the aspirants.
It has turned a blind eye to a series of nefarious acts aimed at wiping out the State from the Indian map, first by suspending the Assembly on June 20, 2018 by the governor appointed by it, followed by its dissolution on November 21, 2018, the president’s proclamation under Article 356 on 19 December 2018, taking over the functions of the State in which capacity he has been implementing the CO 272 order through evasive amendments in Article 367 to read in Article 370, thereby rendering it ineffective.
The court was pleased to hold amendments in Article 370 through 367 to be ultra vires of the Constitution but at the same time held the repeal of Article 370 to be a “fait accompli“. Completely incomprehensible. It is a potential threat to the Indian federation itself, be it symmetrical or asymmetrical.
The abrogation of Article 370 by C.O. 273, the expansion of the Indian Constitution and finally the break-up of the State on 6 August 2019 by dividing the State into two Union Territories taking over the entire functions of the legislature and executive and making the State and its legislature a non-entity. Could this assault on the state not convince the judicial conscience to subvert the Constitution they are sworn to uphold and watch over? The malice was compounded by the observation that “the question whether a state can be downgraded to a Union Territory is kept open to be considered in another appropriate case.” This simply means that it is “specific to Kashmir” and not to any other State. The presumption is not far-fetched.
I am reminded of the golden words of the late Mufti Muhammad Sayeed when I asked him that the Indian government has allowed entry to all Pakistanis above 65 years of age and he replied that Kashmiris are not covered by it, which both sides imply.
The Supreme Court has not only done grave injustice to the people and the state of Jammu and Kashmir but has also tarnished its image of independence and neutrality and damaged the image of India as the world’s largest democracy, real or superficial.
Legitimising the impugned orders on the pretext that “the “impugned orders are the culmination of the progressive extension of the Constitution of India to the State” is misreading and misinterpretation of Article 370(3), which expressly provides for a method of extension by “exceptions and modifications” or “termination”, including “extension as a whole” ‘on the recommendations of the Constituent Assembly’.
The latter occurred in 1954 with the passing of Constitution Order 48. Extension was frozen in 1957 when the Constituent Assembly was dissolved. That is the only form and way the climax could be and was achieved. A G Noorani, a scholar and an authority on Kashmir, has aptly said that “Article 370 lays down a ‘solemn contract’. Neither India nor the state can unilaterally amend or abrogate the Article except by its provisions.”
It is not a gradual “extension” but indeed a “disaster” and “disgrace” to the Constitution, constitutional obligations, agreements, and betrayal of political trust.
It started in 1953 when the elected Prime Minister was deposed and incarcerated and gradually continued as it abruptly culminated in 2019 when everything was abolished by C.O. on 5th and 6th August and the 2019 State Reorganisation Act was passed on August 9, 2019.
This unchaste haste from August 5 to 9, 2019 by the Government of India and the Indian Parliament was given blanket blessing by the Supreme Court. This could not have been expected even from a Panchayat of the country, but the court did not bother about it.
This is not me, but the opinion of credible Indian newspapers, especially the Hindu, Indian scholars, social scientists, retired judges, and lawyers of the Supreme Court of India.
It was naive to claim that Article 370 is in Part XXI of the Constitution where nine other states are listed in Articles 371 to 371(J) as temporary, transitory, and special provisions. Therefore, the President could override it.
No sir, Article 370 was preceded by draft Article 306 and was built into the scheme of drafting the Indian Constitution which made India a Nation-State on 26 January 1950 through Article 1. There was no other way for India to end up there.
It was only temporary to finalise the relationship with India through the Constituent Assembly, not in its essence and existence.
It was negotiated through dialogue and consensus, not through subsequent constitutional amendments like Articles 370 to 371 (J), which were created specifically for the states of Maharashtra and Gujarat in 1956 and ended with the state of Karnataka in 2012.
In the meantime, more states were created. Article 370 was an integral part of the Indian Constitution until the Constituent Assembly of a State decided otherwise. It is the basic structure of Indian federalism, and the basic structure is religiously guarded by the Supreme Court in several cases, starting with the Golak Nath and Keshvanand Bharti cases in the 60s and 70s, but ignored in the case of Devil – Kashmir”.
These states were given this status due to internal disputes while J&K was honoured due to its five thousand years old and special history, especially due to the tough decision taken by its leadership in 1947 against the wind. The court’s comparison was very sad, demonising and indeed naivety.
*Justice (retd) Syed Manzoor Gilani is a former Acting Chief Justice of the Supreme Court of Pakistan-administered Jammu and Kashmir. Part-I can be read here.
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