On December 11, a five-member bench of the Indian Supreme Court, headed by the Chief Justice, upheld the revocation of Article 370 from the Indian Constitution. The judgment, reserved in September after 16 hearings, also called for the conduct of elections in Jammu & Kashmir by September 30, 2024, and the restoration of the state of J&K.
While former Chief Minister of J&K Mehbooba Mufti and President of the Democratic Progressive Party Ghulam Nabi Azad expressed their disappointment over the Supreme Court's judgment, the BJP termed the verdict a vindication of the August 5, 2019 decision of the Indian Parliament, which repealed Article 370, providing autonomy to the state of J&K. Justice Kishan Kaul, another member of the bench, called for the creation of a Truth and Reconciliation Commission to probe human rights violations in J&K by the state and non-state actors since the 1980s to initiate healing.
How will the verdict of the Supreme Court impact the Kashmir conflict? Will the Indian state use the verdict to further consolidate its hold, particularly in the Muslim-majority Valley, by altering the demographic composition of the region? What are the options for Kashmiri independence movements after the Supreme Court's verdict? How will Pakistan deal with the changing legal status of J&K, and will Islamabad follow New Delhi’s example by annexing Gilgit & Baltistan and Azad Kashmir? These are the questions raised in the aftermath of the verdict of the Indian Supreme Court endorsing the August 5, 2019, J&K Reorganization Act and scrapping the autonomy of J&K as mentioned in Article 370.
According to the Washington-based Kashmir Awareness Forum, “The Supreme Court of India upholds the decision of the Modi government to strip the occupied Jammu & Kashmir of special status. The verdict, though disappointing, does not come as a surprise. This is the same court that confirmed the death sentence on Afzal Guru, notwithstanding the fact (own admission of the Chief Justice) that evidence for the alleged crime was not conclusive. The judgment came "to satisfy the collective conscience of the nation."
Now the Indian state will be more confident in crushing any protest demanding the restoration of J&K’s autonomy. The All Party Hurriyat Conference (APHC) challenged the verdict of the Supreme Court, calling it a farce and biased, which will not end the aspirations of the people of J&K for seeking sovereign status.
The same court, a few years ago, issued a judgment giving the Hindu majority the right to build a temple in place of the Babri Mosque. This decision came as a shock to legal luminaries who cast aspersions on the acumen of the judges of the highest court of the land. Any single or group of individuals expecting a fair judgment from Indian courts is exhibiting their naivety, as the rule of law has been buried under BJP Hindutva rubble by the Indian government. The reality is that the Hindu nationalist BJP regime has deepened its hold over the pillars of the Indian state – from the bureaucracy, to the judiciary, military, and security agencies, the BJP has consolidated its hold over power, and the likelihood of the party using a Supreme Court verdict to win the 2024 general elections cannot be understated.
If Mahbooba Mufti, Omar Abdullah, Ghulam Nabi Azad, and other Kashmiri leaders expressed their resentment over the Supreme Court's judgment, will their reaction cause any impact on Indian control over Jammu & Kashmir? The Supreme Court, in its verdict, has cleverly tried to vindicate the stance of the Indian state on revoking Article 370 and placate the grievances of the people of Jammu & Kashmir at the same time. On the one hand, after months of hearings, it has endorsed the Jammu & Kashmir Reorganization Act and Presidential power to end the special status of J&K as guaranteed in the Indian Constitution under Article 370 by calling it a transitory measure, and on the other hand, it called for the holding of elections in J&K by September 2024 and restoring the statehood of J&K. In view of the surge of Hindu nationalism and its penetration in the pillars of state power, it was wishful thinking to expect the Indian Supreme Court to give a verdict contrary to the position of the BJP regime. It had to legitimize the stance of the Indian government on J&K. The suggestion to establish a Truth and Reconciliation Commission for J&K will be a non-starter unless New Delhi withdraws its huge military force, ends the brutal suppression of Kashmiri Muslims, and ends massive human rights violations.
The judgment of the Supreme Court failed to redeem the ramifications of revoking Article 370, which had given special status to India’s only Muslim-majority state J&K, like non-locals were not given the right to vote in elections and to buy property. Since August 5, 2019, the Indian state has embarked on a policy of promoting the influx of non-locals in Jammu & Kashmir, enabling them to get a domicile certificate, cast a vote in local elections, and buy property. As a result, the Muslim majority in the Valley of Kashmir will be seriously undermined. The BJP regime has tried to show the world that normalcy has returned to the once conflict-ridden and violent Valley of Kashmir. The holding of the G20 tourism conference in Srinagar and the planned beauty contest tend to paint a rosy picture of J&K that elides the fact that the fragile peace, particularly in the Valley of Kashmir, is a reality only due to the deployment of around half a million Indian security forces in the region.
According to The Guardian’s report of December 11, entitled, “India’s Supreme Court upholds the decision to strip Kashmir of special status”: “Monday’s supreme court ruling is a victory for the government of the Hindu nationalist Bharatiya Janata party (BJP), which has been promising to revoke Article 370 for years. The party had justified the action on the basis of bringing the security situation in the state under control, though militant attacks have continued since. There was anger at the verdict among Kashmir’s political leaders, who have faced house arrest and harassment since August 2019. Mehbooba Mufti, the former chief minister who was deposed from power, said revoking article 370 was “unjust, illegal and unconstitutional” and that its justification by the Supreme Court was “no less than news of a death sentence not only for Jammu and Kashmir but also for the idea of India.” “No verdict is final, even if it is from the Supreme Court,” she added. “This is a political fight which has been going on for the past several decades. Our people have given huge sacrifices for achieving the dignity of life, and we will not leave it unfulfilled.”
Whereas, Amit Shah, India’s union home minister, while speaking at the Rajya Sabha (upper house of the Indian parliament) on December 11, criticized India’s first Prime Minister Jawaharlal Nehru by lamenting that "Former PM Jawaharlal Nehru was overseeing (accession of) Jammu and Kashmir (after Independence) and he left it incomplete. So many regions of the country that seemed more difficult than J&K joined India, but why was Article 370 imposed for Kashmir."
The Rajya Sabha also passed the Jammu-Kashmir Reservation (Amendment) Bill and Jammu-Kashmir Reorganization (Amendment) Bill 2023 on Monday, the same day the Supreme Court upheld the abrogation of Article 370. The two bills were passed by the Lok Sabha last week. It means both the Indian Parliament and the Supreme Court have sided with the BJP regime while Amit Shah has made it abundantly clear that Narendra Modi will be elected for the third time in the forthcoming general elections.
How the Indian Supreme Court legitimized the scrapping of Article 370 needs to be analyzed from three angles. First, now the Indian state will be more confident in crushing any protest demanding the restoration of J&K’s autonomy. The All Party Hurriyat Conference (APHC) challenged the verdict of the Supreme Court, calling it a farce and biased, which will not end the aspirations of the people of J&K for seeking sovereign status. But it is yet to be seen how the order of the Supreme Court to hold elections in J&K by September 2024 will be implemented. If anti-BJP parties unite in the future J&K elections, one can expect a major upset for Narendra Modi. If the people of J&K accept the status quo following the verdict of the Supreme Court and there is no popular expression for restoring the rights of the people of J&K, it would mean greater legitimacy for the BJP led regime.
The verdict of the Indian Supreme Court upholding the scrapping of Article 370 by the Indian government on August 5, 2019, will dampen hope for Kashmiri freedom, particularly when Pakistan is economically and politically in dire straits and there is no cogent international support for the Kashmiri freedom movement.
Second, Pakistan’s caretaker Foreign Minister, in a press conference on December 11, rejected the verdict of the Indian Supreme Court and made it clear that Islamabad will continue to render political, diplomatic, and moral support to the people of J&K in their struggle. But he was unable to spell out how India can be compelled to restore Article 370, particularly when both the Parliament and the Supreme Court revoked that article and endorsed New Delhi in this regard. Merely by approaching the UN, European Union, and OIC will not achieve much, because in the past the same strategy has failed to mobilize international support for the cause of Kashmir.
For Pakistan, Kashmir is like being trapped between the devil and the deep blue sea, because it cannot choose the path of military confrontation with India over Kashmir, and its capability to exert pressure over Delhi from the international community is limited. The option to merge Gilgit and Baltistan along with Azad Kashmir into Pakistan may be counter-productive, as it will contradict Islamabad’s stance on the UN Security Council resolutions and will be tantamount to accepting the Line of Control as an international border. Finally, the lack of bold voices in India for restoring Article 370 and granting the people of J&K their legitimate rights will further diminish prospects for an inclusive, rather than an exclusionary political system, particularly in the Valley. If the intention of the Modi regime is to replicate the Israeli policy of ethnic cleansing in Gaza and the West Bank and patronize Jewish settlements so as to gain a demographic edge over the Palestinians, it would further marginalize Muslim Kashmiris.
The verdict of the Indian Supreme Court upholding the scrapping of Article 370 by the Indian government on August 5, 2019, will dampen hope for Kashmiri freedom, particularly when Pakistan is economically and politically in dire straits and there is no cogent international support for the Kashmiri freedom movement. Needless to say, one needs to live with the reality of the Indian absorption of J&K and the failure of Islamabad to achieve its age-old dream of transforming J&K as a part of Pakistan into a reality!