Statehood and Justice in J&K: Why Restitution Must Precede Restoration

On 11 December 2023, the Supreme Court unanimously upheld the revocation of Article 370 of the Indian Constitution, which granted special status to the former State of Jammu & Kashmir. In its judgment, however, the Apex Court directed that the Assembly elections be held in the Union Territory by September 2024 and that statehood be restored at the earliest. No deadline was set for the restoration of statehood. 

Assembly elections were conducted following the Supreme Court’s directive, in which the National Conference (NC), allied with the Congress Party, secured the majority and formed the government of the UT of J&K. Shortly afterwards, Chief Minister Omar Abdullah launched a campaign for the immediate restoration of J&K’s statehood. The Centre, however, remained cautious and reticent and was not inclined to make any hasty decisions on this matter. As the demand for restoring statehood grew louder, some individuals also submitted a plea to the Supreme Court seeking the prompt restoration of statehood.

When the matter was heard in court on 14 August, Senior Advocate Gopal Sankarnarayanan, along with college teacher Zahoor Ahmad Bhat, appearing for the applicant, emphasised that 21 months had passed since the Apex Court delivered its ruling. However, there has been no progress towards the restoration of statehood. In response, the Chief Justice of India, Justice BR Gavai, along with Justice K Vinod Chandran, hearing the application, made the pertinent remark: “Ground realities have to be seen; can’t ignore Pahalgam attack.”

In its earlier judgement, the Court had used the phrase, “as soon as possible” for the restoration of statehood. This gives the government the freedom to execute the instructions based on the ground situation. It is well to remember that Article 370 was a temporary Article of the Constitution; yet it lingered on for nearly seventy years.

The ruling National Conference, along with the Opposition People’s Democratic Party (PDP), has expressed displeasure over the Supreme Court’s observation. Former chief minister of J&K and president of NC, Farooq Abdullah, stated that terrorist attacks occur due to strained relations with Pakistan, and they are unrelated to the restoration of statehood. PDP president Mehbooba Mufti highlighted New Delhi’s “lack of confidence in the region’s stability even after revoking Article 370 and downgrading Jammu and Kashmir to a Union Territory. Unless New Delhi engages with the political aspirations of the people, it will remain on uncertain footing regardless of the force it deploys,” she said. She called on the Government to correct “past missteps” and to initiate a “sincere process of dialogue and reconciliation” to achieve lasting peace and dignity for the region.

Congress chief whip Nizamuddin Bhat stated that security cannot be improved without the trust and cooperation of the people. “The issue of statehood is also a matter of identity. Security is tied to people’s participation, not only central control,” he said. People’s Conference MLA Sajad Lone, meanwhile, strongly objected to individuals submitting petitions on such a crucial issue.

The reasons provided by the valley’s political leadership should be regarded as consequences of unique circumstances that emerged in Kashmir after 1986, when Jamaat-I-Islami militants suddenly attacked Hindu shrines and homes in specific areas of South Kashmir. The collapse of law and order in that part of the valley resulted from fierce rivalry within the ruling Congress factions, with one faction resorting to atrocities against the Hindu minority as a means to weaken its political rival.

Nobody should expect the restoration of statehood in a vacuum. When a former Chief Minister claims that terrorist attacks occurred during his government, he needs to answer what actions he took to put an end to those attacks. It is unfortunate that the only action he took was to use his official position to secure the release of about 70 Kashmiri youths from judicial custody, who had secretly crossed over to PoK and received training in arms and terrorism in camps run by the Pakistani ISI. Yasin Malik was one of them.

Farooq Abdullah states that terrorist activities are occurring because India is not engaging in talks with Pakistan. But is talking truly a solution? We have been in dialogue with Pakistan for decades, yet Pakistan still attacked India in 1947, 1965, 1971, and during the Kargil conflict in 1999. It continues to harm India through its notorious ‘thousand cuts’ policy, with the latest atrocity carried out in Pahalgam in May this year.

When the PDP Chairperson states that “unless New Delhi meets political aspirations of the people, it will remain on uncertain footing,” she is disguising her own ambitions as the people’s aspirations. By asserting that insurgency will persist despite the presence of the Indian Army, she effectively says that the Kashmiris will not lay down their arms! She also calls on the government to correct past errors. What she suggests by that statement is simply for the centre to give full authority to the separatists. However, what needs to be done is to identify and punish those responsible for the communal atrocities against the Hindu minority community in South Kashmir in 1986, in which the former Chief Minister of J&K is alleged to have played a corrupt role. Likewise, those responsible for the genocide against the minority Hindu population in Kashmir in 1990 must also be identified and punished. 

The Supreme Court will, at some point, decide on the issue of granting statehood to J&K. However, it will also need to consider the circumstances under which the Union government had to take the steps of removing special status, followed by the Reorganisation Act of 2019. It must determine whether those responsible for undermining the secular, democratic fabric of the state and inciting chaos and violence over decades have been held accountable. It also has to assess the impact of ethnic cleansing and the genocide of the state’s minority Hindu population. Why did this occur, and how does the government plan to prevent and reverse those causes?

The path to peace in J&K begins with recognising that the genocide of the minority Hindu population did occur, followed by punishing those responsible for that horrific act. The former state governments must answer to the Apex Court and the people of India as to why the Commander of Badami Bagh Cantonment, situated just a stone’s throw from the centre of Srinagar city, was not ordered to deploy an armed force in Srinagar on the disastrous night of 19 January 1990. That night, the masses of people took to the streets in their millions, raising pro-Pakistan and anti-India slogans, while the terrified Hindu minority cowered in their homes, like caged pigeons, dying little by little each minute before their actual deaths. They must also answer why the entire police force responsible for the city abandoned their posts, either hiding in barracks or fleeing home for safety.

Ultimately, there can be no fixed deadline for restoring statehood to the Union Territory of J&K. However, a deadline should be set to deliver justice to the victims of genocide and those who remain internally displaced. That restitution must take place before granting statehood.