Despite SC verdict on Article 370, challenges persist in J&K

Luv Puri

Journalist And Author

THE decision of the five-judge Supreme Court Bench, headed by Chief Justice of India DY Chandrachud, to uphold the constitutional order revoking Article 370 was hardly a surprise, given the judges’ observations during the hearing in September. The court has validated the action of the political executive and found the August 5, 2019, abrogation constitutionally valid. Implicitly, the introduction and abrogation of Article 370 were legitimate decisions of the political executive of the day.

Moving forward, the impact of the abrogation on three crucial realms — national politics, national security and foreign policy — has to be assessed. The SC stamp on the abrogation is set to become a prominent talking point for the ruling BJP in the 2024 General Election. A day after the verdict, Prime Minister Narendra Modi was understandably quick to welcome it. In an article, he commented on the imprudence of Article 370 and said: “Unfortunately, due to centuries of colonisation, most notably economic and mental subjugation, we became a confused society of sorts. Rather than taking a clear position on basic things, we allowed duality, leading to confusion. Sadly, Jammu and Kashmir became a victim of such a mindset.” Taking a dig at the political executive that inserted Article 370 in the Constitution, he stated: “At the time of Independence, we had a choice of making a fresh start for national integration. Instead, we decided to continue with the confused approach even if it meant ignoring the long-term national interests.”

The significance of the abrogation as an achievement for the BJP can hardly be underestimated, particularly with PM Modi eyeing a third term. In recent years, the BJP’s core issues have been the construction of the Ram temple in Ayodhya, the implementation of the Uniform Civil Code and the abrogation of Article 370, which granted special status to Muslim-majority J&K. The impact of J&K, having just five Lok Sabha seats and a population of nearly 14 million, on the Indian political landscape, particularly in the Hindi-speaking states with considerable electoral clout, is less understood. Due to several factors, including the inter-generational trauma caused by the Partition, the opposition to Article 370 had resonance in populous Hindi-speaking states — Rajasthan, Madhya Pradesh, Uttar Pradesh and Haryana.

India’s political parties, except the Dravida Munnetra Kazhagam and the Left front, did not come out in the open against the abrogation of Article 370. This is also because of the rigid interpretation of its interlinked provisions, such as Article 35A of the Constitution. This Article empowered the J&K legislature to define ‘permanent residents’ of the state and provide them with special rights and privileges. This prevented some long-term residents in J&K from acquiring domicile rights, including Partition refugees, many of whom were Dalit and poor. These facts were at the heart of the arguments presented by defenders of the abrogation. The Congress’ response after the SC decision indicates that it is on the back foot as in an electoral battle, explaining the complex historical context that necessitated the introduction of Article 370 becomes difficult and it is no match for the combative narrative of the BJP on the issue in the Hindi heartland.

While the BJP has linked the abrogation with national security or the fight against terrorism, the fact is that the two issues are the least correlated. The abrogation has not changed geopolitical realities. Because of various reasons, including structural factors and those rooted in post-colonial contestations, J&K is prone to be in trouble and the situation impacts pan-India security and some aspects of India’s foreign policy. Irrespective of the party in power at the Centre, the Pakistani deep state’s tacit support to terrorism and the alienation in J&K are the two factors that will directly impact the national security calculus. And this requires a granular understanding rather than political grandstanding. The post-2019 targeted attacks on minorities in the Kashmir valley and infiltration of terrorists from across the Line of Control into Jammu’s Rajouri-Poonch area with brutal attacks on security personnel are an indicator that political dynamics and terrorism cannot be neatly separated as this affects the intelligence flow and local support.

Linked with the issue is the key lesson of the last 75 years — that New Delhi should ensure the integrity of the electoral process, both in perception and reality. In the post-1990 era, it has often been argued that an empowered regional political party governing J&K provides a buffer between New Delhi and the Valley, thereby keeping the discontent over governance within J&K. However, unless suitable steps are taken by the political elite to build bridges, the intra-J&K dynamics can exacerbate after the polls, a vector that has been a perennial source of instability.

The situation in J&K is hardly the talking point that it was in the 1990s, particularly in the Western world. Apart from India’s rise as an economic power and favourable geopolitics, crucial variables of functioning democracy and the rule of law in all parts of the country are important to attract more foreign direct investment. The executive defended the abrogation to end exceptionality for J&K. The government must meet the requirements of holding elections at the earliest and providing all constitutional rights to J&K residents, like in the rest of the country, including freedom of speech and respect for civil liberties. This will support the claim that abrogation provides the same fundamental rights to the people of J&K as to Indian citizens in other states and UTs.

In a nutshell, notwithstanding the political grandstanding on the court judgement, the challenges in J&K remain the same and the response would require the executive to look at them with greater clarity and logic.

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#Article 370 #Justice DY Chandrachud #Supreme Court