Indian Supreme Court Verdict on Kashmir Has Sparked Questions about Its Logic and Reasoning
By Jawed Naqvi
Delhi, India
The Indian supreme court’s judgement last week effectively endorsed Prime Minister Modi’s dismemberment of Kashmir in 2019 and his dismantling of its special status guaranteed by the constitution. The verdict was a setback to the idea of India as envisaged by its founding fathers.
It has brought censure from nuclear weapons states in India’s neighborhood who have claims on the territory, in one case on the basis of UN Security Council support for a peaceful resolution of the Kashmir dispute.
Moreover, its reasoning has shocked and surprised the country’s best legal minds, including at least two former senior judges of the apex court. The effect of the verdict for native Kashmiris is being seen as disastrous, but the Kashmiri people and Kashmiri leaders have stoically resolved to persist for as long as it takes to put democracy back on the rails and to restore the special status on the statutes, peacefully.
The verdict reminded my brother of Jimmy Falls, the laidback Anglo-Indian teacher at Lucknow’s La Martiniere College. There was trouble in the back benches when a boy made an untenable proposition to his neighbor who complained to Falls. The petitioner was in for a surprise. “Don’t disturb the class, young man. Give your friend what he wants,” the gobsmacked complainant was advised conclusively.
Falls was perhaps following the doctrine of necessity, favoring an unequal compromise as the best hope to avoid making things worse in the belief that the crisis would blow over with a bit of give and take. But there was no give; only take.
The justices of the supreme court pored over the case for four years before concluding that they could not dispute the Indian president’s reasoning about the special circumstances of Jammu and Kashmir that effectively allowed the government to erase the constitutional clause, which legal experts see as the basis of the erstwhile princely state’s ties with India.
Mr Modi routinely accuses Jawaharlal Nehru, India’s first prime minister, of letting Pakistan walk away with a large part of the state, and at the same time claiming the rest of it with the support of UNSC resolutions.
Historically opposed to Article 370, which tied the state to India with the promise of special rights, Mr Modi’s Hindu nationalist supporters insist that, had Nehru’s home minister and alleged rival Vallabhbhai Patel had his way, Jammu and Kashmir would be an uncontested part of India. Renowned scholars — public intellectual Prof Ram Puniyani, advocate for secular democracy, among them — have illustrated with verifiable references how wrong Hindutva groups were about Patel, particularly on Kashmir.
“The attempt to show that Nehru and Patel had differing opinions on Kashmir is a figment of imagination which abuses the facts of the history to its extreme,” Prof Puniyani wrote in The Wire in response to Home Minister Amit Shah’s berating of Nehru in justifying the destruction of Article 370 four years ago. Pakistan, of course, doesn’t even accept the instrument of accession, which India flaunts as the basis of Maharaja Hari Singh’s imprimatur to go with Delhi.
It was Nehru and Sheikh Abdullah, Kashmir’s towering leader, who got Kashmir to accede to India, archival evidence says. Maharaja Hari Singh had refused to merge with India and was supported in this decision by Praja Parishad. Sardar Patel, who was doing the integration of the princely states, had enough on his plate.
Puniyani cites Rajmohan Gandhi’s book, Patel a Life, as showing what Patel had in mind about Kashmir was to strike a bargain, to have Hyderabad for India and to let Pakistan have Kashmir. To this end Rajmohan Gandhi cites a speech Patel delivered at the Bahauddin College in Junagadh following the latter’s merger with India. In it, he said: “We would agree to Kashmir if they agreed to Hyderabad.”
Hari Singh, according to Puniyani, was all for independent Kashmir and was opposed to merger with India. Patel was already pleased with Hyderabad’s merger. “It was Sheikh Abdullah, who chose to come on the side of India. Here again his consideration was not religion but secularism and socialism. He was keen for land reforms which he saw as impossibility in Pakistan, with predominant leadership with feudal mindset.”
About Amit Shah’s criticism of Nehru for supporting a ceasefire, Puniyani quotes from official correspondence. Patel expressed on June 4, 1948, in a letter to Gopalswamy Ayyangar, that the “military position is not too good, and I am afraid that our military resources are strained to the utmost”.
On the logic and reasoning of the verdict, too, questions have been raised. Justices Madan Lokur and Rohinton Nariman, former judges of the supreme court known for their tempered and reasoned analysis of judicial issues, thought it was a wrong call for the court to back the dismantling of Article 370.
Moreover, the decision now poses a threat to all states in India, which could be similarly dismantled by presidential decree. Of course, presidential decrees essentially reflect the central government’s mind.
The Kashmir verdict triggered unhappy responses from neighbors. Pakistan’s caretaker Prime Minister Anwaar-ul-Haq Kakar said the verdict upholding the abrogation of Article 370 was “politically motivated”.
He reaffirmed his country’s moral, political and diplomatic support to the people of Kashmir. Kakar further said Pakistan wanted good-unneighborly ties with India but its “unilateral actions” on Kashmir in 2019 had vitiated the environment, leaving the onus on it to undo the situation.
Undoing the situation was China’s expectation too, while the verdict would not impact the Chinese position on Ladakh. Foreign Ministry spokesperson Mao Ning, asked to comment on the Indian judgement, said: “China has never recognized the so-called Union Territory of Ladakh set up unilaterally and illegally by India.
India’s domestic judicial verdict does not change the fact that the western section of the China-India border has always belonged to China. Mr Falls could be more attentive to the backbenchers to run the class better. - Dawn
