Bengaluru: A 11 December 2023 Supreme Court verdict confirming the end of special constitutional privileges to Jammu and Kashmir (J&K) “glosses over many legal explanation and is full of ambiguities”, according to Anuradha Bhasin, executive editor of The Kashmir Times, one of the former state’s oldest English newspapers and author of a book on the subject. 

“It is a classic case of ‘If you can’t convince them, confuse them,’” said Bhasin, 55.

The Supreme Court of India held that J&K had no claim to sovereignty, only “asymmetric federalism”, after accession to India in 1947, the J&K Constitution was redundant, and that there was no prima facie case that the union government’s abrogation of Article 370 on 5 August 2019 via the President’s orders was “malafide” or an “extraneous exercise of power”. 

A five-judge Constitution bench of Chief Justice of India D Y Chandrachud and Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant said the reorganisation of J&K into the union territories of J&K and Ladakh was valid but temporary and ordered the union government to restore statehood and hold state elections by 30 September 2024. 

Bhasin said the Supreme Court had “let down the people of J&K”. 

The judgement, delivered even as local politicians and former chief ministers were locked up at home—which the J&K government denied—said that constitutional order 272, which the government of Prime Minister Narendra Modi used in August 2019 to change the definition of the J&K Constituent assembly to a legislative assembly, was invalid but that it made no difference since the Supreme Court held that the President did not need a recommendation from the Constituent assembly. 

Bhasin said that even before the verdict, the government had been creating grounds for irreversible changes. “New laws, especially those related to lands & jobs, signal that the decks have been cleared for gradually changing [J&K’s] Muslim-majority status,” she said.

“When everything else fails in a democracy, we look up to the court,” said Bhasin, a journalist for more than three decades and now a John S Knight fellow at Stanford University in the US. “So, there were some expectations from the court.”

When the J&K government suspended the Internet for more than 500 days, the longest shutdown reported in a democracy, it was Bhasin’s petition before the Supreme Court that led to a January 2022 ruling that the right to freedom of expression included a right to use the Internet. 

In October 2020, the J&K government sealed the State-allotted Srinagar office of The Kashmir Times, which was started in 1955 by her father Ved Bhasin and over the years has been a target for both militant groups and the State, which stopped advertisements to the newspaper in 2010.

Bhasin questioned the Supreme Court’s view that the abrogation of Article 370 was valid because it was not malafide.  

“How did they arrive at this conclusion?” asked Bhasin, citing how the government sent tourists home, suspended the Amarnath yatra, a popular Hindu pilgrimage, described the deployment of additional troops as “routine exercises” and snapped communciation links.

“On the night before 5 August 2019, the Internet and phones were switched off, and the entire political leadership was arrested,” said Bhasin. “Were these not signs of deception?”

The interview:

Would you agree that the 11 December 2023 Supreme Court order upholding the end of J&K’s special privileges is in a sense redundant given the changes on the ground since 5 August 2019? Did you expect the Supreme Court to rule otherwise?

When everything else fails in a democracy, we look up to the court. So, there were some expectations from the court. It has let down the people of J&K by giving its final seal and approval to the loss of special privileges that the people enjoyed.  

The bottomline of the Supreme Court judgement is that there was no internal sovereignty left after J&K’s accession to India, and there is no prima facie case that the President’s orders scrapping Article 370 were malafile or an extraneous exercise of power. 

I am not a legal expert, but from what I see there is no reasonable explanation for arriving at such a conclusion. The verdict glosses over many legal explanations and is full of ambiguities. It is a classic case of ‘If you can’t convince them, confuse them’. Academics and legal experts who have studied Jammu and Kashmir’s legal and political history have argued to the contrary. The accession to India was not automatic, it was sealed and cemented by Article 370. 

Interestingly, the court notes, ‘We have therefore held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires.’ and that ‘permitting such amendments by such a surreptitious method would be disastrous.’ The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d). Then how can Article 370 be scrapped? 

The exercise of power is malafide only if it is “intended to deceive”, Chief Justice Chandrachud said, and since there was no intention to deceive, there was no need for the union government to get permission from the state government to remove Article 370. Would you agree that there was no intention to deceive?

Again, how did they arrive at this conclusion? How did they measure the intentions of the union government? A scrutiny of the events preceding 5 August 2019 would have been enough to show that this is way off the mark. Days before, there was panic in Kashmir. Amarnath pilgrimage was suspended abruptly and tourists were being forcibly packed off and sent back. There was extra deployment of troops and the government allayed the fears of the people by saying that ‘these were routine exercises’ for ‘security reasons’. Is that not an intention to deceive? On the night before 5 August, the Internet and phones were switched off, and the entire political leadership was arrested. Were these not signs of deception?

In sum, the Supreme Court judgement says the Constituent Assembly of J&K was meant to be temporary, and Article 370 was meant to be temporary. Would you agree with that?

The Constituent Assembly was temporary, as was the Indian Constituent Assembly. Their job was to draft the constitution and they were disbanded. 4 members of the J&K constituent assembly—Sheikh Mohd Abdullah, Mirza Afzal Beg, Maulana Masoodi and Moti Ram Baigra—were also part of the Indian Constituent Assembly to assist and advice on the arrangements between India and Jammu and Kashmir. Article 370 (then Article 306A) was included by the Indian Constituent Assembly as a temporary provision. But it was not temporary so that it could be discarded. [Article] 370 was the constitutional link between India and J&K. It was temporary so that the J&K Constituent Assembly, while drafting the J&K Constitution, would take a call on approving or rejecting it. The J&K Constituent assembly approved it and the J&K Constitution laid down that J&K is an integral part of India. This meant that 370 was a finality. Its removal only brought to question the legal link between J&K and India. 

Election dates are up to the Election Commission. Do you think elections will be held by September 2024?

I don’t recall any of the petitioners seeking election dates. It is bizarre that the Supreme Court should be announcing elections. If so, why by September 2024 when the parliamentary elections are due before that?

What is more absurd is that the court has not even examined whether under Article 3, J&K could have been dismembered and demoted into two union territories, J&K and Ladakh. Without adjudicating on the matter, the court has taken the government’s stance at face value, that the government is committed to holding elections and restoring statehood. At the same time, it upheld the formation of the union territory of Ladakh. 

As you’ve pointed out in your book, the so-called autonomy of J&K had been whittled away for decades (operative excerpts here): 94 of 97 entries in the union list, on which the union government has exclusive power to legislate; 260 of 395 articles and seven of 12 schedules of the Constitution were extended to J&K before Article 370 was removed entirely on 5 August 2019. Chief Justice Chandrachud called it an ongoing process of ‘constitutional integration’. So, what exactly did the abrogation of Article 370 achieve?

Article 370 was reduced to a hollow shell, but its existence was evidence to the special circumstances of J&K’s accession to India, and its disputed nature. Significantly, it also protected the special privileges and rights of the permanent residents of J&K with respect to land rights, business investments and jobs.

So, despite the whittling away of J&K’s autonomy, 370 (and 35A, which defined permanent residents of J&K) protected the special and exclusive rights of the people that were related to their day to day lives. This also protected the Muslim majority status of the state. This was also significant for India as J&K was the only Muslim majority state in ‘secular and democratic India’.

After the J&K Reorganisation Act, scores of J&K laws were fully repealed or amended, and new laws were adapted with far reaching consequences.  For instance, the word ‘permanent residents’ was purged in several clauses of various laws. More significantly, the Civil Services Recruitment Act was amended by replacing ‘permanent resident’ with ‘domicile’, opening jobs in government services to Indian citizens outside the erstwhile state. Automatically, the clauses in all the acts of the J&K constitution, particularly with respect to jobs and land ownership, which required proof of being permanent resident—possession of a PRC (permanent resident certificate)—were rendered meaningless. The government repealed or altered 26 land laws which reversed the gains of the historic land reforms and other agrarian reforms. Some laws may indeed be beneficial for the people, for instance the Forest Rights Act,  but the implementation is weak. By and large, there is a sense of loss. 

By completely neutering Article 370, the permanent residents of J&K have lost their exclusive privileges. The introduction of new laws, especially those related to lands and jobs, signals that the decks have been cleared for gradually changing its Muslim majority status.

Chief Justice Chandrachud said he did not agree that the J&K Constitution indicated a unique relationship with the Indian Constitution or that there was sovereignty contained within it. He said the fact that J&K was an integral part of India is made clear from section 3 of the J&K Constitution itself, apart from Articles 1 and 370 of the Indian Constitution. Article 1 of the Indian Constitution says, ‘India, that is Bharat, shall be a Union of States.’ Justice Kaul said J&K only followed ‘a slightly different’ path to accession from the rest of the princely states. Does the historial record back up these assertions? Are they right, in your view?

J&K was one the centrepiece of India’s asymmetric federalism. This meant that its relationship with India was not the same as many other states. That in no way conflicts with the Constitution’s definition of ‘India, that is Bharat, shall be a Union of States’. 

Jammu and Kashmir’s accession with India was different from other princely states. There is enough historical evidence to show why Jammu and Kashmir, in view of its demography, its area and its geographical congruity with both the dominions of India and Pakistan, placed it differently. Its accession happened under particular circumstances when the tribal raiders attacked and the besieged monarch of Jammu and Kashmir sought India’s help. The Instrument of Accession was signed conditionally by the Dogra monarch and the accession was accompanied by a letter to Lord Mountbatten, pleading Jammu and Kashmir’s unique case.

In his reply on 27 October 1947, Lord Mountbatten responded: ‘It is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of the state’s accession should be settled by a reference to the people.” 

Besides, in the Instrument of Accession, the Maharaja wrote that “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument” and “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

The schedule, appended to the Instrument of Accession, clearly gave the Indian Parliament power to legislate for Jammu and Kashmir on only three subjects—defence, external affairs and communications.

Justice Kaul referred to the Pastun invasion of 1947, the Kashmiri Pandit exodus after 1989, spoke of ‘intergenerational trauma’, human-rights violations by State and non-State actors and recommended a truth and reconciliation commission on the lines of South Africa. Would such a commission help?

While such Commissions are effective, they have a limited impact. They are effective only when there is a conflict resolution in process. How can you have conciliation and no resolution? Besides, I am not sure why this has been suggested when the subject of discussion was legality of J&K Reorganisation Act. 

As a local and a journalist, can you explain how the abrogation of Article 370 and the subsequent takeover of J&K by the union government changed your professional and personal life?

As a permanent resident of J&k, I was as much impacted personally as any other citizen. The anxieties about land ownership and business investments applied equally to me. 

To bring down the whole structure and dismantle the state, the government had put in place several restrictions—stringent provisions of section 144 and communication ban. In Kashmir Valley and the Muslim majority districts of Jammu region, even the landline phones and mobiles were not functioning, apart from the internet ban that existed fully for the next six months and partially for another year. This impacted my work as a journalist, which is why I approached the Supreme Court in 2019 against the Internet shutdown. 

However, in an act of vendetta, the government withdrew all advertisement support to Kashmir Times. They later sealed our office in Srinagar, which was operating from a rented government building, but they also seized all our infrastructure, office files and archives, making it impossible for us to operate. We had to gradually shut down all print editions, including Hindi and Dogri.  

Since the abrogation of Article 370, civil liberties in the erstwhile state are in tatters and due to sweeping detentions, surveillance and criminalization of journalists, civil society activists and many others, there is an overwhelming sense of fear in J&K—more in Kashmir Valley. This makes it difficult for us, as journalists, to carry on our work.  

(Samar Halarnkar is the founding editor of Article 14.)

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