“Until the lions have their own historians, the history of the hunt will always glorify the hunter.”
~ Chinua Achebe
On Dec 11, 2023, the five-judge constitutional bench of the Supreme Court, led by Chief Justice Dhananjaya Yeshwant Chandrachud, ruled that the region’s special status had been a “temporary provision” and upheld the BJP government’s 2019 move, and declared its removal was constitutionally valid. The Supreme Court said the government’s move was “a culmination of the process of integration and as such is a valid exercise of power”, and Jammu and Kashmir should be restored to the same statehood as any other Indian state – with no separate autonomy rights – “at the earliest and as soon as possible”. Chief Justice DY Chandrachud said, “Article 370 was an interim arrangement due to war conditions in the state”. On August 5th, 2019, the Modi Government, abrogated the special status of Jammu and Kashmir under Article 370 and the subsidiary provision Article 35 A. Through a Presidential order, Jammu and Kashmir has been robbed of its right to Statehood and has been divided into two Union Territories, Jammu and Kashmir with a legislative assembly, and Ladakh as a separate Union Territory without any legislative assembly. This attack on democracy and federalism is now supported by the order of the Supreme Court.
When the Muslim-majority Kashmir’s Hindu ruler Maharaja Hari Singh signed an agreement to join India, as part of the Instrument of Accession, India allowed Kashmir to retain its own constitution, flag, and criminal code. In 1947 India’s first Prime Minister Pandit Jawaharlal Nehru announced on All India Radio that “Kashmir’s future will be decided by the means of plebiscite”. However, the promise of the plebiscite is still pending.
India claims that people’s participation in elections shows that people are happy and there is no demand for any plebiscite. Article 370, which came into effect in October 1949, granted Kashmir autonomy of internal administration, allowing it to make its own laws in all matters except finance, defense, foreign affairs, and communications. Article 35A, a further provision added to Article 370 in 1954, empowered state lawmakers to ensure special rights and privileges for permanent residents of the state. Kashmir had its own prime minister and president until 1953 when the Nehru Government jailed its prime minister, Sheikh Abdullah, and abolished the post as their so-called efforts to integrate the Muslim-majority region with the rest of India. Article 370 was a condition for accession, the marginal note to Article 370 describes it as a “‘temporary Provisions with respect to the State of Jammu and Kashmir’” according to the special circumstances but as those circumstances are still present it cannot be abrogated without consulting the parliament of Jammu and Kashmir. Paragraph 7 of the Instrument of Accession, clearly shows that one of the terms of joining India was that the ruler of J&K wasn’t going to just accept the eventual Constitution in full, that he would have the discretion to decide which parts of such a Constitution would apply in the state. There are cases when the Supreme Court itself said that Article 370 is not a temporary provision, e.g., ‘Sampat Prakash vs State Of Jammu & Kashmir’ and ‘SBI vs Santosh Gupta’.
Ahead of the Supreme Court’s verdict, security agencies in Kashmir took extensive measures to avoid mass protests. The police asked people to desist from sharing “provocative content” on social media. Several pro- India politicians in the region were put under house arrest. Kashmiris have lost faith in India’s democracy since long.
Article 370 protected the privileges of permanent residents of Kashmir related to jobs, land, and business investments. Young people now fear that jobs and higher education seats will be shared with people from outside and they will be unable to compete. People from outside Kashmir are already investing in businesses in the region. There is fear that India is trying to engineer a “demographic shift” in the Muslim- majority region because the BJP, which is in power, has for years talked about changing the demography of Kashmir as a way to resolve the dispute. As recently as February, 2023, huge reserves of Lithium have been discovered in Reasi of Kashmir. The GoI brought about the Mines and Minerals (Development & Regulation) Amendment Bill, 2023 to facilitate the mining of atomic minerals like Lithium, Zirconium etc. close to the heels of this discovery, a point to note as the assent of the Supreme Court is discussed.
Kashmiris have been forcibly silenced for long. Using the military and repressive laws like AFSPA, their sovereignty has been denied. Lakhs of people have lost their lives and thousands have disappeared during the military rule in Kashmir. According to a report by the UN High Commissioner for Human Rights, published in July 2019, gross human rights violations by state security forces and armed groups have occurred, including sexual violence, and enforced disappearances. The report emphasises the torture on civilians—for example, the use of pellet- firing shotguns has led to 1253 people being blinded in 2016-18. Last month, disturbing videos of Army personnel battering Kashmiri civilians leading to their death went viral forcing an inquiry. India has been the prison of nationalities from the colonial period and continued to be after the so-called independence of 1947. This decision of the Supreme Court is another example of India’s treatment of Kashmir as a colony.
