Supreme Court Judgment on Abrogation of Article 370

On December 11, 2023, the Supreme Court of India delivered its verdict on petitions challenging the Centre’s decision to make changes to the Article 370 and reorganise the state into two union territories of Jammu and Kashmir (J&K) and Ladakh. After a 16-day hearing, the court considered submissions for and against 2019 Centre’s act. The main issue to be decided was whether Parliament could have converted itself into a Constituent Assembly.

The Pioneer, (December 27, 2023) editorial, “Deciphering the Verdict on Article 370,” by Siddharth Mishra and Shashank Rai, Article 370, a provision in the Indian Constitution, was declared dead on August 5, 2019, when the former president, Ram Nath Kovind, signed the constitutional orders (COs) 272 and 273. The Supreme Court of India unanimously let Article 370 rest in peace, focusing on its status and implications. The court found that Article 370 was a temporary provision, which was necessary at that time due to the war-like situation in J&K. The court observed that the Article served an interim purpose until the Constituent Assembly of J&K ratified the Indian Constitution and decided the contours of engagement between the Union of India and the state of J&K for matters other than those mentioned in the Instrument of Accession.

The president has unilateral powers under Article 370(3). So, post the dissolution of the Constituent Assembly of J&K, there was nothing mala fide in the president not seeking concurrence of the state government for the full application of the Constitution under Article 370(1)(d).

The constitutional order (CO) 272 amended Article 367, which would mean ‘Legislative Assembly’ in proviso to Article 370(3), and abrogated Article 370. Paragraph 2 of CO 272 was held unconstitutional, but the rest of the portion which extended the whole of the Constitution of India to the state of J&K was held to be valid. The court categorically held that the power under Article 356 is not subject to Article 357, meaning Parliament gets not just the legislative power but also the power to give recommendations on behalf of the legislature for irreversible actions like state reorganisation. The court directed the restoration of statehood at the earliest possible opportunity, mandating the Election Commission of India to conduct elections to the Legislative Assembly of J&K by September 30, 2024. The court has delineated a nuanced and pivotal perspective on controversial issues of national importance, but its avoidance of conclusively addressing Parliament’s power under Article 3 to alter a state’s character into union territories leaves room for future considerations regarding the scope, impact, and legitimacy of such actions on the principles of federalism, historical context, and representative democracy.

In The Indian Express (December 12, 2023), Apurva Vishwanath explained how the Supreme Court of India has provided crucial answers in the government’s favour. The SC has ruled that J&K did not retain any element of sovereignty after its accession to India in 1947. The court ruled that the state’s constitution, including Article 1 and 370, was an integral part of India, and that the state’s purpose was to ensure everyday governance. The SC also held that Article 370 was a temporary, transitional provision of the Constitution, serving a purpose in the war-like situation in J&K in 1947. The court upheld both presidential proclamations of August 2019, which effectively abrogated Article 370. The central issue was whether these actions could be taken by the Union assuming powers of the state when it is under president’s rule. Chief Justice of India Chandrachud stated that the governor (president in J&K’s case) can assume “all or any” roles of the state legislature and such action must be tested judicially only in extraordinary cases. The SC relied on an interpretation of the Bommai ruling, stating that there is no prima facie case that the president’s orders were mala fide or extraneous exercise of power.

The Hindu (December 11, 2023) argued that the Supreme Court of India’s verdict upholding the abrogation of J&K’s special status under Article 370 of the Constitution represents a departure from the court’s known positions on federalism, democratic norms, and the sanctity of legal processes. This verdict is undoubtedly a political boost to the ruling BJP and an endorsement of its audacious move in August 2019 to strip Kashmir of its special status and bring it on a par with other states. However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context, and undermines constitutional procedure. The most potent attack on federal principles is the court’s unconscionable conclusion that Parliament, while a state is under president’s rule, can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the state legislature. This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the court itself and may have grave implications for the rights of states, permitting a range of hostile and irrevocable actions in the absence of an elected body. The court has reasoned that the Constitution of India has been applied incrementally from time to time even after the Constituent Assembly was dissolved in 1957 and that the removal of special status is nothing but the culmination of the process of its integration. However, the idea that in the absence the Constituent Assembly and in view of the subordination of J&K to the sovereignty of India, there is no fetter on the government’s intention to hollow out its residual autonomy is opposed to all canons of federalism and democracy. This verdict weakens institutional limitations on power and, while rightly upholding Indian sovereignty over J&K, it undermines federalism and democratic processes to a frightening degree.

Arghya Sengupta in his editorial, “Political grammar of one Article,” in The Times of India (December 11, 2023), argued that the Supreme Court ruling that the power to nullify Article 370 belonged solely to the President, and it could be exercised even without a recommendation from the J&K constituent assembly. This ruling found a way out of the chakravyuh that even Abhimanyu, aided by the gods, could not despite the provision appearing to be a chakravyuh that required the recommendation of the Constituent Assembly. Maharaja Hari Singh’s conclusion fundamentally recasts Article 370, stating that the future relationship between J&K and the Union of India would be determined by mutual consensus between the people of J&K and the rest of India. This was a promise made by the Government of India to Maharaja Hari Singh in 1947. The government assured him that the future of the state would be determined by a “reference to the people.” Article 370, which had been nullified without the people of Jammu and Kashmir having a voice in the process through their own representatives, has significant implications for the future of Indian federalism. The Constitution, with its centralising tilt, gives Parliament the power to redraw boundaries of a state or create a new state only after ascertaining views of the affected state legislature. This question raises the possibility of the Parliament redrawing the boundary of West Bengal and creating Gorkhaland after taking its own views into account in the absence of a state legislature. The supreme court’s judgment does not foreclose this possibility, especially since it sanctions the recasting of J&K and Ladakh as union territories as legal. However, the issue is the Constitution, not the Supreme Court. It is right to say that the Constitution, especially Article 356 itself, gives the president a wide swathe of powers to ensure unity and integrity of the nation. President Rajendra Prasad was prescient about the power under Article 370 (3) to modify or abrogate the article, which could not be used multiple times. He deferred to elected leaders, and the special status of the state unwittingly became semi-permanent. Article 370 should have become a dead letter on January 26, 1957 when the J&K constituent assembly finished its work and the J&K constitution declared its inalienable connection with India, coming into force.

Pratap Bhanu Mehta, in his editorial, “Has SC established a dangerous precedent for federalism?” in The Indian Express (December 14, 2023), mentioned that the Supreme Court’s judgment upholding the abrogation of Article 370 is a significant legal victory for the Narendra Modi government’s approach to J&K. This decision is seen as a significant step towards the full integration of the state into India’s constitutional scheme, an improvement on the half measures that characterised the situation before the abrogation of Article 370. The experience of J&K has been marked by a tragic paradox, with formalities of treaties, law, legality, promises, and procedure being severely litigated. Article 370, meant to protect the special status of Kashmir and give it more autonomy, ended up doing neither. Successive acts by parties in Kashmir, authoritarian actions of the central government, insurgencies, and violence fomented by Pakistan have led to significant chunks of Kashmir’s history without democracy or human rights protection. The state was also in a political logjam, unable to endure its condition or possess the means to overcome it. In 2019, the Government of India, via two Constitutional Orders (COs) 272 and 273, abrogated Article 370 and reorganised the state, downgrading the status of Kashmir. The court, in this judgment, obliged and followed the norm. The historical case is ambiguous, and the political might behind abrogation is overwhelming. The court is emphatic that Article 370 was meant to be transitory in nature and that the whole of the Constitution of India applies to the state. However, the court produces its typical conjuring trick by holding that the modification to Article 367 by CO 272 had the effect of amending Article 370 and was ultra vires (Article 370)1(d). A similar conjuring trick has been played on the reorganisation of the state of J&K and its downgrading to a union territory. The court avoided this issue by accepting an open-ended promise from the government with no specified date that statehood will be restored. This new jurisprudence is invented; you can do something potentially unconstitutional, reap all the material consequences of that act, and then restore a formal status quo ante at some unspecified future date. A case could be made for upholding the abrogation of Article 370, but for the court to completely duck the most significant and novel degradation of Indian federalism that the Jammu and Kashmir Reorganisation Act, 2019, represents, will do no favours to its authority. Justice Kaul’s unprecedented call for a Truth and Reconciliation Commission in an appendix to the judgment can be debated, but he was right to see the problem of J&K beyond its technicalities and asserts that there needs to be an honest reckoning with the suffering caused by both state and non-state actors. The abrogation of Article 370 moves history forward, as it attempts to cut the Gordian Knot left by the settlements of the late ‘40s and ‘50s. Indian politics itself is changing, and the Supreme 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 full measure.

Syed Ata Hasnain, in his article, “Post-370, GOI should reach out and be tough in Kashmir,” in The Times of India (December 12, 2023), discusses the challenges faced by India in integrating J&K into the rest of India, including political, social, economic, military, diplomatic, and psychological domains. He emphasises the importance of encouraging Kashmiris to say ‘Jai Hind’ to win the proxy hybrid war launched by Pakistan. The psychological domain must be strengthened to prevent separatist sentiment from continuing. The global cycle of terror is threatening to reignite, with Pan-Islamic ideologies trending towards radicalism. The Pakistan army’s leaning will impact J&K, where undercurrents of radical ideology persist. The absence of war is not peace, as these undercurrents will be evident through subtle propaganda and word of mouth. The Indian state has been most effective against overt elements of terror, but its understanding of the ideological and cultural realm needs improvement. The political and academic community’s responsibility is to empower citizens in a democratic way, as J&K has had many elections with limited real-time contact. The army and security forces must continue to hold the periphery and prevent infiltration and gravitation back to traditional separatist centres. Standard operating procedures (SOPs) will minimise attempts at one-off successes but eliminating them is near impossible. Political consensus must be created for bold political decisions, with Jammu and Kashmiris working towards common goals. He warns against co-opting Sikh militancy as ISI attempts to create a continuum in the border belts from Punjab to Jammu. Economically, J&K will do well as long as violence is below threshold and benefits are reaching the people. Religious and other tourism must remain innovative, allowing investment in improved infrastructure to encourage foreign influx. India cannot allow any deterioration of the hard-won peace in J&K and dismantling the security structure is crucial to prevent terrorist revival.

In The Hindu editorial (December 20, 2023) “The deep import of the Article 370 verdict,” Radha Kumar discusses three key aspects, namely, what the verdict means on the ground for J&K and Ladakh, what it tells us about how the court sees peace and security, and what it implies for the fundamentals of democracy in India. In 1953-55, the States Reorganisation Commission held public consultations to determine unit formation, but this judgment denied elected representatives’ consultation rights. The judgment has been met with mixed reactions in Jammu, Kargil, Ladakh, and the Valley. Jammu’s ambiguity is due to economic dispossession post-2019, with trade, retail, and mining rights awarded to national industries. Kargil’s disappointment stems from Shia desire to maintain Valley ties, while Leh’s welcome of separation is tempered by a desire for an elected administration. The verdict has had a severe impact on the valley of Kashmir, reinforcing the belief that Kashmiris are resentful and silenced by the rest of India. The President of India, Ram Nath Kovind, issued draconian orders, including the deployment of additional troops, detention of over 5,500 Kashmiri politicians and activists, and a communications blackout. However, neither the main nor concurring judgments mentioned these events in their summaries of incidents prefiguring the presidential orders. The judges accepted the alleged security threat to the Amarnath Yatra in August 2019, which has not been heard since, as background to the presidential orders and the Jammu and Kashmir Reorganisation Act, 2019. This has led to the delay in restoring statehood, despite the administration’s claim that the situation is much improved. A blanket acceptance of alleged security concerns can be dangerous, as it has allowed unwarranted arrests of journalists, activists, and comedians, who languish in jail on unproven charges of unlawful activities and/or sedition. The failure to probe security concerns has closed debate on policy and performance in tackling internal and external conflict, as seen in the cursory parliamentary discussion of the ongoing civil conflict in Manipur. Policy accountability is critical to operational improvement. Justice S.K. Kaul’s recent judgment acknowledges human rights abuses in J&K but fails to address the violation of human and political rights since August 2019. The judgment also overlooks the lessons learned from India’s own experience, which suggests peace making is the best solution to internal conflict. Data shows a rising curve of violence in J&K after the Union home ministry adopted policies of purge and censorship, deteriorating the India-Pakistan ceasefire agreement. In contrast, data shows a sharp curve of diminishing violence during the peace process of 2002–13. The rise in violence between 2016–18 could have been effectively countered by the A.B. Vajpayee and Manmohan Singh administrations’ policy of improving democratic practice and engaging in peace talks with Pakistan. Validating the extreme clampdown of August 2019 Act and its actions could lead to an upsurge in violence if a semblance of democracy is restored. A truth and reconciliation commission, proposed by the then Chief Minister Omar Abdullah over a decade ago, could bridge the gap between the two. However, there is no peace process in J&K today, and the verdict’s validation of the removal of autonomy and administrative bias towards developers and industrialists can only harden alienation in the valley.

P. Chidambaram, in The Indian Express (December 17, 2023) editorial, “Towards a dystopian future,” mentioned the Supreme Court judgment on the abrogation of Article 370, stating that the former state of J&K no longer enjoys its special status. The court argued that the provisions of the Constitution of India had been extended to J&K between 1950 and 2019, and the abrogation of Article 370 was the culmination of this process.

The court concluded that the procedure followed by the central government was ultra vires Article 368 of the Constitution, as a provision of the Constitution may only be amended in one way—by resorting to Article 368 and passing a Constitution Amendment Bill in Parliament with the requisite special majority. The court concluded that the exercise of power under Article 370(1)(d) by the President, applying all the provisions of the Constitution to J&K, was valid and had the same effect as abrogating Article 370 by virtue of a declaration under Article 370(3). On the requirement of concurrence of the state government under the second provision to Article 370(1)(d), the court held that it was not necessary; the correctness of the latter conclusion is highly debatable. The court should have examined the question whether the resort to Article 3 to divide the state into two union territories was illegal. However, the court declined to adjudicate on the issue because the central government’s Counsel submitted that the government intended to restore statehood to J&K (minus the UT of Ladakh) and hold elections.  Besides, while the court set a time limit for holding elections (September 30, 2024), the court did not stipulate a deadline for restoring statehood, since it is obvious that elections should be held after restoring statehood. The third issue (undecided) is the most troublesome. Under Article 3 of the Constitution, no bill for altering the territory of a state or forming a new state or union territory, etc., shall be introduced in Parliament except after the president ascertained the views of that state. J&K was under president’s rule since December 19, 2018, and all powers and functions of the state legislature were assumed by Parliament. The president consulted Parliament (= state legislature) and Parliament expressed the ‘views’ of the state legislature, leading to the division of the state into two union territories—Ladakh and J&K. It was a strange double-act by Parliament. If the constitutionality of this exercise remains uncertain, any state could be brought under president’s rule, the president can ascertain the views of the state legislature (= Parliament), and Parliament can divide a state and reduce it into two or more states or union territories. In most cases, the abolition of the former state will be irreversible. Keeping aside the ‘abrogation’ of Article 370, the government’s manipulation of the Constitution, is a significant concern for the country, as it can undermine states’ rights and federalism.

T.K. Arun, in The Economic Times (December 12, 2023) article, “SC’s J&K verdict: Unfinished agendas and challenges that still remain,” mentioned that the SC ruling on removal of Article 370 does not mean that no special challenges remain in the J&K. Multiple ideological battles are being waged, with Kashmiris and members of Indian security forces serving as expendable pawns in their physical manifestations. These must be fought and won for Kashmir to once again be known primarily for beauty rather than for violent revolt. The proxy battles that Pakistan wages by fomenting separatism and aiding militancy has not yet been quelled, although it has been forced to retreat. Pakistan was formed as a homeland for the Muslims of South Asia, who claimed they would not be able to live in security or prosper in Hindu-majority India. In other words, for Pakistan, Kashmir is not about the Kashmir or its people but about its own being. An extremist, radicalised strand of austere Islam is waging a ruthless war against the impure among Muslims and against infidels. This war has been playing out in Kashmir as well, with some champions of the ideology of the Islamic State having foisted themselves atop Kashmir’s militancy. The Indian state has not helped its own cause, or Kashmir’s, by frequently dismissing elected governments, stealing elections, patronising some elite families who finesse the art of mediating popular aspirations for their personal benefit, and clamping down on dissent with military deployment. This has led to the extended presence of security forces in the mental and physical geography of the state, rendering Kashmiris virtually into residents of an occupied land, breeding lasting anger against martial law and the central government. Combating the proxy war by Pakistan and radical Islamist ideology is tied up with what Justice S.K. Kaul said about healing the wounds and setting up a Truth and Reconciliation Commission. The wounds in question extend to the enforced flight of Kashmiri Pandits from the land of their birth.

Yashwant Deshmukh and Sutanu Guru, in their editorial, ‘Article 370—Winning Kashmiri hearts and minds remains a challenge in the Valley,’ in India Today (December 18, 2023), mentioned that the Supreme Court’s decision to uphold Article 370 in the Kashmir valley has been met with mixed reactions from Indians living in the valley. While some supporters of the Narendra Modi regime view this as a moment of political triumph, others argue that winning the hearts and minds of Indians living in the valley remains a work in progress or a task unfinished by any yardstick.

C-Voter conducted an exclusive survey soon after the Supreme Court delivered the verdict upholding the abrogation of Article 370, and a parallel and separate survey was also conducted with the same set of questions in the union territory of J&K. The results would be startling for those who are optimistic about peace, love, brotherhood, and emotional integration, but they would be on expected lines for those who do not ignore realism and reality. On key issues, the opinions and perceptions of Indians living in the Kashmir valley completely diverge from what citizens in other states of India think. Not only that, but they also differ dramatically from what citizens in the Jammu region think. The core issue is alienation and a sense of victimhood in the valley. The jingoistic lot would dismiss it as the last gasp of a cult that is withering away, while the realistic lot would pay heed and debate how to address the concerns and complaints of Indians living in the Kashmir valley.

The first question asked during the survey was simple: “Do you agree with the Supreme Court verdict upholding the abrogation of Article 370?” In Indian states apart from J&K, about seven out of every ten respondents agreed with the verdict while less than two disagreed. In the Jammu region of J&K, about 56 per cent of the respondents agreed while just about 35 per cent in the Kashmir valley shared the same view. More than 50 per cent of the respondents in the valley disagreed with the verdict of the top court. Sustained messaging at a political level and propaganda also creates a sense of victimhood, either real or imagined. For example, in Tamil Nadu, the constant refrain is that taxes gathered from successful, educated, and hardworking states like Tamil Nadu are squandered by an ‘uncaring’ centre on poor states like Uttar Pradesh and Bihar. Like in the Kashmir valley, many in Tamil Nadu also feel that the current regime is not treating them well. Sometimes, the grievances and concerns are genuine. In the Jammu region, about 43 per cent of the respondents agreed while more than 48 per cent disagreed. In the Kashmir valley, close to two-thirds of the respondents do not want people from other states to have the right to buy property and settle down in the valley. Some would say this is because of Islamist propaganda, as the valley is now almost entirely Muslim, while others would suggest it is nativist fears and has less to do with religion. Bridging this yawning gap in perceptions will remain a challenge for future regimes.

The C-Voter survey indicates that the perceptions and opinions of locals in J&K are convergent with those in other Indian states. More than three in five believe terrorism has decreased in J&K, with 72 per cent in Jammu and 53 per cent in the Kashmir valley sharing this opinion. This reflects the growing concern for terror attacks in the region. Political views also share a common sentiment among Indians living in the Kashmir valley, with two-thirds believing that leaders like Omar Abdullah and Mehbooba Mufti have no political future. This lack of faith in home-grown leaders could lead to political vacuums and trouble. The most heartening results come in the political future of J&K, with 73 per cent of respondents in both the Jammu region and the Kashmir valley believing that full statehood should be restored to J&K. The union government has committed to restoring full statehood to J&K. The next step is restoring the fundamental rights of people living in J&K to elect their governments. Over 75 per cent of Indians in other states believe assembly elections should be held immediately or with the 2024 Lok Sabha polls, while close to 80 per cent in J&K feel the same way. However, the Supreme Court verdict states that Assembly elections must be conducted by September 2024. Winning the hearts and minds of people in the Kashmir valley remains a challenge due to decades of violence, gunfire, death, and destruction. While infrastructure development and investments are important, human beings are political animals, and restoration of full statehood and early Assembly elections would be significant strides in winning their hearts and minds.

The Outlook (December 21, 2023) editorial, “Supreme Court’s Verdict On Article 370: A Constitutional Backsliding?” by Burhan Majid, mentioned that the Supreme Court of India has endorsed the central government’s decision to abrogate Kashmir’s semi-autonomous status, four years after the unilateral abrogation. Kashmir is the only state that actively bargained the terms of its membership with the Indian Union, retaining its legislative authority on all matters except defence, external affairs, and communication. This arrangement was later codified in Article 370 of the Indian Constitution. The December 11th judgment bypassed the Constitution and its precedents, and the court held no qualms about obliterating bilateralism in the text and context of Article 370. The court virtually decimated the ‘will of the people of J&K’ by ruling that Article 370 could have been abrogated without ‘concurrence’ from J&K’s ‘Constituent Assembly’, a prerequisite under the Article. The presidential order of 2019 attempted a facade of bilateralism by changing the reference of ‘Constituent Assembly’ to ‘Legislative Assembly’ in Article 367. However, the court refused to accept that J&K retained ‘internal sovereignty’, arguing that J&K had surrendered full sovereignty after a Proclamation was issued by Yuvraj Karan Singh in November 1949. This invocation of the proclamation is self-defeating because it was meant to oversee the state’s transition from the applicability of the Government of India Act, 1935, to the Constitution of India and cannot overshadow the constituent power of J&K’s Constituent Assembly that shaped the relationship between J&K and the Indian Union. The Supreme Court of India has been accused of erring in not referring the Article 370 case to a seven-judge Constitution Bench, as there were conflicting decisions by five-judge Constitution Benches in Prem Nath Kaul v. State of J&K (1959) and Sampat Prakash v. State of J&K (1968). Prem Nath highlighted the ratification by the J&K’s Constituent Assembly to extend any provision of the Indian Constitution to the state and established that J&K has retained internal sovereignty while giving away external sovereignty. In Sampat Prakash, the court narrowed down the constitutional precedent by expanding the President’s authority to modify the provisions of the Indian Constitution for J&K, potentially risking abuse. Not long ago, the court reiterated the permanent nature of the Article in State Bank of India v. Santosh Gupta (2016).

The court’s interpretation of ‘modification’ in Article 370(1) essentially permitted radical amendments subsequently, relegating it to a procedure for abusive constitutional alteration rather than safeguarding J&K’s autonomy. The court has given a weak explanation for calling Article 370 temporary, centralising the word ‘temporary’ in the Article’s marginal note and the political conditions at its conception. The word ‘temporary’ was put in the marginal note because the final form of the constitutional relationship between J&K and the Indian Union was to be decided by the Constituent Assembly of the state. The judgment raises other crucial questions in the context of stripping J&K of the statehood in August 2019, effectively giving the executive a free rein to do anything, including the exercise of non-law-making powers of a state legislature under Article 356, the judgment is a rewriting of ADM Jabalpur v. Shivkant Shukla (1976), which has infamously endorsed the emergency of the 1970s. Both the abrogation of Article 370 and J&K’s reorganisation have been validated by the court, stating that in the absence of the state legislature, Parliament can express ‘views’. This constitutes a blatant misreading of the president’s power under Article 356. According to constitutional principle, the president can merely exercise ‘powers’ under the Article; the said power does not extend to the expression of ‘views’ on behalf of a state legislature. Yet, the court held: ‘Once the presidential proclamation has been approved by both Houses of Parliament, so as to reflect the will of the people, the president has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly’. The court’s interpretivism, though employed inconsistently, has shown a troubling disregard for the Constitution and its own precedents. With a history of patchy engagement with J&K’s unique constitutional position, the Article 370 ruling makes a perfect case of constitutional subterfuge in India’s post-colonial constitutional history.

The Kashmir Times (December 19, 2023) editorial, “Article 370 Judgment: Another Step in the Wrong Direction,” by Altaf Hussain Wani, mentioned that Article 370 was included as a special clause in the Indian Constitution, guaranteeing autonomous status and other privileges to the people of the state of J&K. While the process of erosion of Kashmiri identity began in the 1950s, Article 370 remained a fig leaf for the so-called mainstream parties vouching for the state’s accession to India. For them, this judgment was a big disappointment. The Hurriyat and their ideologically close groups believe that the reinstatement of the article is not their problem. Their politics revolve around the resolution of the Kashmir issue, and they believe that no act of the Indian Parliament or court judgment has any bearing on it. The judgment has posed many challenges to the major political parties who had pinned high hopes on the Supreme Court. How will they cope with this new challenge? Will they accept it as a fait accompli or try to achieve something else under the framework of the law? This may turn out to be the case shortly, but it would be a Herculean task for them to convince their voters and supporters in the future. History has proven that the government’s policy of forcing its decisions on people has always proved to be counterproductive. While all other avenues to vent dissent have been exhausted, many have pinned their hopes on the judiciary. But with the judiciary fully supporting the government’s decision, it looks as if this last strength has also been lost. Such an authoritarian approach, which goes against the established principles of norms and justice, may help the present Indian government strengthen its control over the area but will in no way help it to bridge the widening gap between Srinagar and New Delhi. A wise and judicious verdict by the Indian judiciary could have helped provide respite to the bewildered masses in Kashmir and restore confidence in the state institutions, but the honourable judges seem to have preferred to satisfy the collective conscience of the supporters of the present government.

Apoorva Mandhani in her editorial, “After SC’s final word, Article 370 is no longer a battleground. But J&K election is,” in The Print (PTI) (December 16, 2023), argued that the Supreme Court’s decision to uphold the abrogation of Article 370 of the Constitution, which granted special status to J&K, has sparked mixed reactions. Prime Minister Narendra Modi praised the decision, stating it has strengthened the spirit of “Ek Bharat, Shreshtha Bharat.” Solicitor General of India Tushar Mehta also commended the government for rectifying a “humongous constitutional blunder of the past with gigantic proportion.” However, leaders from J&K expressed disappointment with the verdict but affirmed their fight for honour and dignity. Ghulam Nabi Azad, chairman of the Democratic Progressive Azad Party, criticised the decision as “sad and unfortunate” but vowed to accept it. National Conference Vice-President Omar Abdullah expressed disappointment but remained prepared for the long haul. Mehbooba Mufti, President of the People’s Democratic Party, characterised the verdict as a “death sentence” but remained hopeful, stating that the fight for honour and dignity will continue. The Supreme Court’s decision marks the end to a legal conflict that has engulfed the union territory for the past four years. Justice Sanjay Kishan Kaul, a Kashmiri judge, highlighted the historical burden of the Kashmir valley and the need to restore its social fabric to coexistence, tolerance, and mutual respect. He suggested setting up an “impartial truth and reconciliation commission” to investigate human rights violations in J&K since the 1980s. In his op-ed, Modi emphasised that every child in Jammu, Kashmir, and Ladakh is born with a clean canvas to paint a future full of vibrant aspirations. The future of J&K lies in a return to democratic set-up in the region. The Delimitation Commission set up to redraw constituency maps for the UT of J&K, released its final report in May 2022, adding seven assembly seats to the total from 83 to 90. There are 43 seats in Jammu and 47 in Kashmir, with nine reserved for scheduled tribes. After the Supreme Court verdict, the next battleground for J&K will be the election booths.

Deccan Herald (December 15, 2023) reported Pakistan’s Prime Minister Anwaarul Haq Kakar’s view criticising India’s Supreme Court verdict on Article 370’s abrogation, claiming it was politically motivated. He emphasised Pakistan’s support for the people of Kashmir, stating that the two regions are interconnected and that the word ‘Pakistan’ is incomplete without it. Kakar’s statement was made during a special session of the Legislative Assembly of Pakistan-occupied Kashmir.

The Print (PTI) (December 25, 2023) reported President of India Droupadi Murmu’s appraisal on the progress made in J&K since the removal of Article 370. She emphasised the collaboration between the central government and local administration for the people’s development. Murmu emphasised that the youth of J&K want to become part of India’s mainstream but noted that some elements may oppose progress due to vested interests. However, she emphasised the government’s investment in infrastructure, technology, and education for the region’s progress. The ‘Watan ko Jano’ programme aims to make the youth aware of the country’s art, culture, civilisation, and development work. Murmu urged the youth delegation to take advantage of the government’s developmental efforts, stating that new paths of progress will open in their lives. She advised them to stay away from drugs, anti-social elements, and negative publicity for their bright future. Murmu also emphasised the importance of democracy providing fair opportunities to everyone, urging them to move forward with dedication and hard work. She also noted that technology is being used extensively in governance for the benefit of the common people. The administration has taken important initiatives to make governance future-ready in J&K.

Asian News International (ANI) (January 5, 2024) reported Indian External Affairs Minister S. Jaishankar’s view on abrogation of article 370. He criticised the 1948 decision to take the Kashmir issue to the United Nations Security Council as a “fundamental error” and claimed that by abrogating Article 370, India closed a “window of vulnerability” that New Delhi had been foolish enough to open. He argued that India saw the UNSC as a neutral arbiter, while other countries used Kashmir as a “vulnerability” issue. He also argued that India’s decision to abrogate Article 370, which had profound implications for its foreign policy, was a misreading of the world’s sanctity and the impartiality of UN arbiters. He argued that if India had been more “hard-headed” and had a better understanding of international politics, it would not have made such a mistake.

The Indian Express article (December 12, 2023), “Abrogation of Article 370 upheld: Better days lie ahead for Kashmiris,” by M.N. Sabharwal and Manish Sabharwal, mentioned that Articles 370 and 35A in Kashmir history were controversial, but they were unarguably temporary laws that prevented outsiders from buying land in the adopted Madre Watan (motherland). The Supreme Court judgment upholding their abrogation, along with India’s new terrorism playbook and Pakistan’s weaknesses, improves the prospects of peace and prosperity in J&K. Article 370 was born in 1949 and was hardly uncontroversial. It was likely influenced by Pakistan’s brutal 1947 invasion of Kashmir, Sheikh Abdullah’s credibility after helping the Indian army repel this attack, and India’s mistaken United Nations reference. However, the window was small, as Nehru approved Abdullah’s arrest in 1953. This abrogation answers Syama Prasad Mookerjee’s (also spelt as Mukherjee’s) 1952 call of “Ek desh mein do vidhan, do pradhan, do nishan nahin challenge” (one nation cannot accept two constitutions, two heads of state and two flags). Pakistan’s historic geopolitical importance was dramatically diminished by the 9/11 terrorist attacks, hospitality to Osama Bin Laden, and the US-China rivalry. Citizen anger is rising with the economically incompetent garrison state, with its per capita GDP lower than Bangladesh, total GDP less than Maharashtra, and 23 IMF bailouts needed since 1947. The military is not the saviour of Pakistan but an existential threat to it. Kashmiris began recognising Pakistan in their proverb Bayee sindhi athi seet punnini kangri wokhool karoon (stirring your kangri with somebody else’s hands) long ago. Maqbool Butt wrote a thoughtful letter to his niece after the Pakistan Army’s Operation Searchlight 1971 genocide in Bangladesh, suggesting that rulers who declare war against their own people cannot offer anything to anyone else but injustice. Pakistan inspires its terrorist proxies with tales of America’s defeat in Vietnam, Russia’s defeat in Afghanistan, and the fall of the Berlin Wall. India’s 1948 letter to the UN about Kashmir was questioned by Mahatma Gandhi and Sardar Patel, and Nehru regretted his decision within a month. Western Cold War calculations ensured 13 UN resolutions on Kashmir supported Pakistan, and J&K Deputy PM Bakshi wrote to Nehru in 1951 that “the UN Observers don’t confine themselves to their legitimate function of watching the ceasefire line but in greater part act as agents of Pakistan.” Constitutional integration completed, India must now shut down the UN office in Srinagar with 100 people and $10 million annual costs. Instead, India should initiate UN action against Pakistan under Resolution 1373 under Chapter VII of their Charter, which obliges countries to prevent terrorists from using their soil to organise, recruit, train, and raise funds while authorising a forceful multinational response for violations. Additionally, India should advocate replicating the UNSC 1267 Committee (the al-Qaeda sanctions committee) to target individuals in Pakistan operating their terror factory. Many people in J&K will be understandably unnerved by the finality of the Supreme Court judgment, but decades of blood, pain, and tears demanded shaking the status quo. Philosophers remind us that embracing uncertainty is “being more like a plant than like a jewel, something rather fragile, but whose very particular beauty is inseparable from its fragility.” Beautiful and fragile J&K has better prospects of peace and prosperity with constitutional integration, redrawn statehood, and competitive politics. Antah asti prarambh (the end is the beginning) lies ahead.

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