In the present situation, the UN Security Council Resolution is meaningless. In these circumstances, Article 370 had completely lost its relevance; it is time to rebuild Kashmir

Recently, the Hon’ble Supreme Court ruled in favour of the Modi Government’s August 2019 decision to nullify Article 370 of the Constitution. That Article gave Jammu and Kashmir special status within our federal structure giving it the right to have its constitution along with exemption from the complete applicability of our constitution. Bizarrely, though only a temporary provision, it de facto came to be treated as permanent because the J&K Constituent Assembly did not specify its abrogation when it dissolved itself. This seems illogical because common sense suggests whichever authority has the power to promulgate such an article, obviously also has the power to dissolve it. In essence, we created a mountain out of a molehill!

 Notwithstanding this, legal luminaries and eminent commentators, former Supreme Court Justice Madan Lokur and our foremost constitutional expert, Fali S Nariman, amongst them, have gone on to express their unhappiness with the Supreme Court’s verdict. Justice Lokur, for example, has pointed out that the verdict was based on inherent contradictions of the court's earlier judgements and extremely convoluted logic. Furthermore, he was also unhappy with the Court’s refusal to determine whether the reorganisation of the state, which was divided into the Union Territories of Ladakh and Jammu & Kashmir, was constitutionally permissible under Article 3. He saw this as a failure of the court to do its constitutional duty. Mr. Nariman was even more critical going so far as to call the verdict “totally erroneous and bad in law.”

More than just the question of Jammu and Kashmir, what seems to be troubling those critical of the verdict is the precedent that the Supreme Court has set. In their view, this verdict will have a significant impact on India’s federalism, which it had earlier deemed to be a basic characteristic of our constitution and inviolable and sacrosanct. They believe by its actions or rather inaction, it has now permitted the Central Government, through Parliament, to undertake the reorganisation of a state without the concurrence of its State Assembly. Academic polemics aside, the truth is this government, as we have seen over the years, has little time for either propriety or precedent once it has made up its mind, and appears to be quite unmindful of how our Courts might respond.

Georges Clemenceau, the French Prime Minister during the Great War, once famously said “War is too important to be left to the Generals.” In a similar vein, affairs of state are too important to be left to Judges to decide. In any case, the issue of Jammu& Kashmir needs to be seen not so much as an issue of jurisprudence but realpolitik.

The fact is the State is seen as a disputed territory by the international community, despite the very concise, clear and legally binding Instrument of Accession signed by its ruler, Maharaja Hari Singh. It now seems fairly apparent that the special status had been temporarily bestowed on the state in an attempt to convince its populace that their interests would be protected if they voted in favour of acceding to India in the plebiscite that was required to be undertaken as per U N Security Council Resolution No 47. Undoubtedly, the Pakistan Government concluded that the plebiscite would favour India, not least because of the atrocities committed by the so-called Tribals. Since the plebiscite was contingent on the withdrawal of Pakistani troops from the state, this was never undertaken, allowing them to keep the dispute going through four wars, over the past seventy-five years. Today, the plebiscite is a non-starter and the relevant UN Security Council Resolution is meaningless and unimplementable. In these circumstances, Article 370 has completely lost its relevance.

One could conclude that it had become an impediment to progress as it did not allow for full integration with our polity, and discriminated against many of its inhabitants, with its provisions being cynically utilised by local political parties to extend their majoritarian agenda at the cost of the minority population. More importantly, while the military can control the violence that has plagued the State since 1989, the ongoing insurgency can only be resolved through substantive political initiatives. Governments over the years have refused to undertake such a step, leading to repeated cycles of violence, every few years.

Thus, the Modi Government’s nullification of Article 370 was an extremely bold and positive political move, though one could argue that it did not go far enough. Instead of the incremental approach adopted, the Government should have initiated simultaneous steps to remove AFSPA from the hinterland and move the Rashtriya Rifles to the LOC in a counter-infiltration role to stymie Pakistani support, without endangering our supply routes.

 In that sense this verdict, even if flawed, should embolden the Government to take far bolder measures within the Union Territory that could in the long run pay handsome dividends and greatly enhance our national security environment. There will always be naysayers and prophets of doom, but the Government should ignore them if it is truly interested in achieving a positive outcome.

(The author, a military veteran, is a Visiting Fellow with the Observer Research Foundation and a Senior Visiting Fellow with The Peninsula Foundation, Chennai)