Supreme Court’s Kashmir ruling upholds Hindu majoritarian pride and prejudice

Article 370’s abrogation opens a Pandora’s box of concerns about federalism, democracy, and human rights in Kashmir and beyond.

Published : Dec 13, 2023 15:50 IST - 6 MINS READ

Paramilitary soldiers patrol the main market in Srinagar on December 11 after the Supreme Court upheld a 2019 decision by the Modi government to scrap Jammu and Kashmir’s special status under Article 370.

Paramilitary soldiers patrol the main market in Srinagar on December 11 after the Supreme Court upheld a 2019 decision by the Modi government to scrap Jammu and Kashmir’s special status under Article 370. | Photo Credit: Mukhtar Khan

Let us ask ourselves a question: Just how many people expected the Supreme Court to reverse the Centre’s actions of August 5, 2019, in Jammu and Kashmir, when it revoked the undivided State’s semi-autonomous status with a Presidential order, while holding its population captive in their own houses, and precluding any form of dissent with the spectacle of armoured vehicles parked everywhere? Few. Perhaps, none.

It is not that the petitioners had a weak case. Nor was everyone who thought that the petitioners’ attempts would be futile versed with the law. Yet, if one could foretell what was coming, it was the outcome of a widespread perception that in contemporary India the executive’s asymmetric, growing influence has made it immune to even institutions that were envisaged with the express purpose of regulating its power. There is a perception today that the executive’s political decree, particularly the ones which come with the trappings of upholding the national interest, is not to be hindered, not even by the other pillars of democracy.

Without adding credence to such perceptions, or questioning the sagacity of the apex court vis-a-vis the petitions challenging Jammu and Kashmir’s altered status, the fact that such a perception exists is deeply concerning. The Supreme Court’s lack of a position on important aspects of federalism, when it delivered its verdict on December 11, did little to annihilate them.

Also Read | Supreme Court’s Article 370 verdict: Legal victory for Centre, but long road to reconciliation remains

One of the focal points of controversy in New Delhi’s August 2019 measure in Jammu and Kashmir was whether, or not, when a State is under President’s rule, the concurrence of a President-appointed Governor can be regarded as a valid substitute for the concurrence of an elected Legislative Assembly. It is pertinent to mention that the proviso under Article 3 of the Constitution states that the President shall refer the Bill for reorganisation of any State to the legislature of the concerned State to elicit its opinion.

The Supreme Court verdict has left every Indian State vulnerable to similar experimentations, wherein New Delhi can form new States or alter existing ones in the absence of an elected government, which essentially means without a mandate from the people. This has the potential to profoundly impact India’s federal structure.

Court evades key questions on Article 370 and statehood

The Supreme Court evading the examination of the merits of downgrading the State of Jammu and Kashmir into two Union Territories, on the ground that the Solicitor General has promised the return of statehood, was also not a development people committed to democracy and federal autonomy enthusiastically awaited.

Interactions with a cross-section of political leaders in Srinagar give one the sense that they expect New Delhi to decide on the question of statehood only after the Assembly election. The BJP’s inability to explain the denial of statehood to Jammu and Kashmir and, at the same time, its reluctance to restore it, upholds that observation. It also provokes the inference that what it intends to do is restore statehood if it wins Jammu and Kashmir, else bide time indefinitely.

The Supreme Court’s direction to the Election Commission to hold polls in Jammu and Kashmir at the earliest, not later than September 30, 2024, invariably gives it a long rope, without having to explain the inordinate delay witnessed already. The common refrain in Kashmir is that the BJP, having sensed imminent defeat for itself and its alleged proxies in the Kashmir valley, is loath to Jammu and Kashmir going to the hustings. The underlying fear is that a transfer of power to Srinagar-headquartered parties would demolish the iron-fist bureaucratic apparatus it has erected, one which undermines civil liberties to create and sustain a culture of acquiescence.

A policeman stands guard near a cutout portrait of Prime Minister Narendra Modi displayed at the main market in Srinagar on December 11.

A policeman stands guard near a cutout portrait of Prime Minister Narendra Modi displayed at the main market in Srinagar on December 11. | Photo Credit: Mukhtar Khan/AP

The questions that fester in people’s minds are: Why is a long rope needed? Is this to allow time for the BJP to organise a more equipped election machinery, or assemble a formidable social coalition by pursuit of community-targeted welfarism, or to simply aid its perceived ploys to splinter mainstream Kashmiri parties, particularly the National Conference, which is widely expected to sweep the Kashmir valley?

Also Read | Why the maths is not working out for the BJP in Jammu and Kashmir

Yet, outside Kashmir, there is wide-scale approval of the Supreme Court judgement. It stems from the constant feeding of an aspiration for a Hindu hegemonic structure, where minorities must live as minorities, without the strength or standing to articulate community-specific disadvantages, and without the agency to influence the politics of the country. Quiz a random Hindi heartlander on Article 370, and pat comes the reply: Why should Kashmir have a special status at all?

Jammu and Kashmir’s former Chief Minister Mehbooba Mufti recently addressed that conundrum at a media conclave in New Delhi. “The whole country seems to conveniently forget or ignore the fact that Jammu and Kashmir, a Muslim majority State, went against the tide by choosing a democratic, secular India to a religious Pakistan. It was an exceptional decision made with the commitments/guarantees from the then Government of India to give us certain safeguards in the form of special status to protect our unique identity.”

Fear of militancy and reality of targeted killings

The other dominant viewpoint is that Article 370 spawned terrorism and after its abrogation terror activities have abated. This is a specious argument that 24x7 news cycles on TV circulate to amplify the ruling party’s fear-mongering and expand its appeal to anxious voters. Militancy in Kashmir erupted in 1990, decades after the inception of Article 370, and even after it was stripped off in August 2019, there is no data giving potency to the argument that militancy is on the wane. If anything, it has percolated to Rajouri and Poonch. If anything, it has acquired a nefarious, harder-to-prevent dimension of targeted killings.

Consider this: In 2020, despite a pandemic, 244 terror attacks took place killing 62 soldiers and 37 civilians. In 2021, 42 soldiers and 41 civilians were killed in 229 terror attacks. In 2022, 31 security personnel were killed in 242 terror attacks.

Also Read | Torture, custodial killings continue to haunt lives in Jammu and Kashmir

Justice Kaul, who directed the setting up of an “impartial truth-and-reconciliation commission” to investigate cases of human rights violations since 1980, noted that the purpose of Article 370 was to slowly bring Jammu and Kashmir on par with other Indian States. Have we? The goal of integration is a far-away vision at a time when the Modi Government is seen strengthening its commitment to placing the social and political interests of the Hindus at the top.

People in Kashmir have valid cynicism: How can there be integration in the face of everyday disregard for basic human rights? When all democratic platforms to express disagreement with the powers-that-be remain suspended? When journalists are booked under anti-terror laws? When government employees are terminated over mere suspicion of supporting separatist thought? When students from other States have their Kashmiri counterparts arrested under draconian laws for allegedly cheering for a winning cricket team?

None of this facilitates integration. It begets a feeling of otherisation. It begets an environment of suppressed, collective anger. It begets a feeling of vulnerability to contemporary nationalists’ basest impulses.

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