On the Supreme Court’s Kashmir Judgment
What Independent Newspapers Are Saying
Newsreel Asia Insight #71
Dec. 13, 2023
The Supreme Court of India on Dec. 11 upheld the 2019 abrogation of the autonomy of Jammu and Kashmir (J&K) under Article 370 of the Indian Constitution. What are the implications of the verdict on federalism and democracy? Here are some responses from independent media.
The Dec. 11 ruling came from a unanimous order by a five-judge bench, led by Chief Justice D.Y. Chandrachud, in response to over a dozen petitions challenging the revocation of Article 370 and the subsequent division of the state into two Union territories – J&K and Ladakh – by the Indian government led by the Bharatiya Janata Party (BJP) in August 2019.
The Solicitor General of India submitted to the apex court that the statehood of J&K would be restored, as reported by Hindustan Times, which also said the Court set a deadline of Sept. 30, 2024, for the assembly elections to be held in J&K. Ladakh will remain a Union territory.
Article 370, which granted autonomy to Jammu and Kashmir, was drafted in 1947 by Sheikh Abdullah, the then Prime Minister of Jammu and Kashmir, and accepted by India’s first Prime Minister Jawaharlal Nehru. It was classified as a temporary provision and incorporated into the Indian Constitution in October 1949, the Supreme Court’s judgment affirmed. The President of India did not need the concurrence of the state government to repeal it, the Court further held, justifying the central government’s unilateral decision on J&K in 2019.
An additional provision, Article 35A, was added in 1954, empowering state lawmakers to define special rights and privileges for the state’s permanent residents. However, the repeal of Article 370 led to the scrapping of Article 35A, which brought significant changes. These changes included allowing non-residents to buy property in the region and ending the local control over state government jobs and college admissions.
This ruling has profound implications for the federal structure of India and the autonomy of its states, according to independent newspapers.
The Hindu, in its editorial, expressed deep concern over the judgment. It argued that the verdict not only represents a retreat from the Court’s known positions on federalism and democratic norms but also legitimises the subversion of federal principles.
The Court failed to appreciate the historical context of J&K’s accession to India, according to the editorial. It criticised the Court’s interpretation of the President’s powers under President’s Rule, viewing it as a dangerous precedent that could allow future central governments to unilaterally alter state boundaries or statuses without the consent of the state’s elected representatives.
A report by Scroll.in focused on the reactions from J&K, capturing a sense of disappointment and betrayal among its residents. Some regional voices viewed the Court’s decision as an extension of the central government’s power, it said, highlighting the fears of demographic changes and the perceived endorsement of the central government’s agenda by the Supreme Court.
“This is the moment we feel more betrayed as judiciary was our last hope,” Rouf Ahmad, a postgraduate student, was quoted as saying. “The court was meant to correct constitutional mistakes and violations committed by the political regime against the people of Jammu and Kashmir.”
Ahmad expressed disagreement with the notion that the judgment leads to the “full integration” of J&K with the rest of India. He argued that the judgment would actually result in further alienation of J&K from India.
The media outlet Article 14 provided a detailed analysis through the perspective of Anuradha Bhasin, a journalist and author. A former executive editor of The Kashmir Times, one of the former state’s oldest English newspapers, Bhasin criticised the judgment for its ambiguities and for glossing over necessary legal explanations.
Bhasin questioned the Court’s conclusion that the abrogation of Article 370 was not malafide, citing the events leading up to the August 2019 decision. “There is no reasonable explanation for arriving at such a conclusion,” she was quoted as saying. “It is a classic case of ‘If you can’t convince them, confuse them.’”
She added, “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?”
Bhasin further stated that following the repeal of Article 370, civil liberties in the former state have significantly deteriorated due to widespread detentions, surveillance and the criminalisation of journalists and activists, which severely hampers journalistic work.
