In October last, the Supreme Court bench directed the union government to respond to the petitions pending before it, in which the court has been requested to seek implementation of its December 11, 2023 ruling. The Supreme Court had unanimously upheld the Centre’s decision to revoke Article 370, which had granted special status to Jammu and Kashmir. The Court also directed that assembly elections be conducted in the Union Territory (J&K) by September 2024 and statehood be restored at the earliest possible date.
The elections to the State Assembly were held in deference to the directive of the SC. The newly formed legislative assembly met in Srinagar on November 4, 2024. The plaintiffs argued that more than 13 months had elapsed and that yet Union government had not taken any initiative towards restoring the statehood. The bench gave the Union government four weeks to submit its response.
The manner in which the State government has been repeatedly insisting on restoration of statehood to J&K gives the impression that it harbours apprehensions that the Centre may find pretexts to scuttle it. The Union government promised restoration at “the earliest possible date.”
The State government often quotes central authorities in general, and the LG in particular, to argue that militancy has been controlled in J&K and normalcy restored. Therefore, it submits that the time has come for the revival of statehood.
New Delhi, in response, cites the Pahalgam tragedy as a proof proof that not only has armed insurgency not been stamped out but that it has assumed outright communal dimensions in Kashmir. It wants to silence the State government and the plaintiffs by pointing out the reality on the ground. Though security forces have not disclosed the widespread network of insurgency in the valley and in the higher reaches of the Pir Panchal, a range which has become the new entry point and refuge for external jihadists, the reality is that thousands of people have been either rounded up or interrogated for extracting sensitive information about refurbished terrorist plans for the valley. The escalation of jihadist infiltration into Kashmir that we have witnessed in the last two or three years results from the combined operations of local separatist and pro-Pakistan collaborative elements against the Reorganisation Act of 2019. More recently, the Ghazva-e-Hind gunmen, sponsored and abetted by ISI after Pakistan’s present army chief took command, have vigorously contributed to the spread of violence and mass radicalisation of the majority community in the Kashmir valley.
The point is that the judiciary is one of the four organs of a state. As such, it is expected to have full knowledge of the ground situation in the country and particularly in the sensitive border state of J&K, where externally sponsored and internally abetted armed insurgency has entered its thirty-seventh year.
What may have eluded the perception of the Supreme Court is the palpable danger of religion-based terrorism looming large in the State. Nonetheless, the SC is expected to look at the issue from all possible angles and tailor the ruling accordingly.
We could be a little more candid about what needs to be conveyed but is not conveyed. The issue involves the fundamental structure of the Indian state, viz., secular democracy. Secularism and democratic dispensation, both, were at stake in J&K. This necessitated a constitutional change of its status through an Act of Parliament. Such a sensitive issue cannot be handled with kid gloves.
The onus of pushing Kashmir to the brink essentially lies on the Kashmir valley’s mainstream political leadership. It wants to remain glued to power by subtly playing the card of religion, the classical opium for the masses. New Delhi craftily circumvents the crux of the problem. The State government knows it, but refuses to open Pandora’s Box. And the SC prefers to treat the symptoms while turning a blind eye to the root of the malaise.
Before announcing the four-week timeframe, should the SC not have the SC asked the State government what measures it has taken during its year and a half long tenure in office to mobilise public opinion in the valley against armed insurgency in all its forms and manifestations? Should it not have pointed out to the State government that radicalisation, being highly detrimental to social cohesion, needed to be controlled? The SC is aware that during the past three and a half decades of armed insurgency, no Kashmir valley political leader has uttered a single word against the armed jihadists who have a comprehensive plan of subversion and sedition with covert support and encouragement by the separatists. Not only that, the valley leadership backed up the separatists and terrorists, their OGWs in particular, whenever the security forces raided a hideout of the terrorists and seized arms and ammunition from them. There is hardly a day that such incidents do not happen in Kashmir.
The SC knows what is the most critical element of the controversy about the revival of the Statehood status. Let the spade be called by its name. It is the ethnic cleansing of the five-thousand-year-old Kashmiri Pandit aboriginal community and their prolonged exile. The SC knows that the essential and irrefutable reason for the reorganisation of the state into a Union Territory is the anti-Indian conspiracy of 1990, in which the then ruling coalition played a vital role. Should not the SC ask the present government what steps it has taken to address this issue? The state or the Union government cannot escape the responsibility of failing to protect the fundamental rights of the small religious minority of the Kashmir valley, namely the right to life and property and the freedom to adhere to a particular religion. The exiled community expects the SC to ensure the representation of the Kashmir minority community (now in exile), particularly when the administration is almost indifferent towards the matter. What hinders the SC from taking a suo moto view of the deprivation of the constitutional rights of Kashmiri Pandits?
Simple logic and fairness dictate that the restoration of J&K’s statehood be made conditional upon the resettlement of the exiled community in the land of its birth. If refoulement happens again, should the onus not be on the Supreme Court? The former becomes doubly responsible because there is not a single elected member of this minority community in the State Assembly who would challenge the demand of the UT’s ruling authorities to restore statehood to J&K if an impartial judicial inquiry about the genocide and ethnic cleansing in Kashmir in 1990 is also conducted.
Granting statehood anew to J&K also means restoring the constitution of the state, which contravenes many articles of the Constitution of India in more than one way. The Stat Constitution rejects the concept of minorities in its population but invariably claims that the Muslims of the State must enjoy the minority rights provided by the Indian Constitution. Statehood should not be granted in a vacuum. Minorities have to be recognised as an inalienable part of the electorate and provided with constitutional safeguards.
In the final analysis, the Indian Constitution and the Indian state must ensure that true secularism and equality before the law of the land are ensured for the perpetuation of the state. As long as religion is allowed to dictate governance, democracy will be stifled.
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