India’s Supreme Court Has Opposed Autonomy for Kashmir

Last month India’s supreme court ruled in favor of Narendra Modi’s government’s efforts to suppress Kashmiri sovereignty. The ruling is the culmination of a decades-long process led by Hindu nationalists to assert control over the region.

Indian paramilitary personnel patrol the city of Srinagar, Jammu and Kashmir, ahead of the Indian Supreme Court's verdict on Article 370, December 11, 2023. (TAUSEEF MUSTAFA / AFP via Getty Images)

In early December, India’s Supreme Court pronounced its verdict in the controversial Article 370 case. The article is a constitutional provision that determines the relationship between India and the former princely state of Jammu and Kashmir, binding the region and the world’s most populace nation. Indian lawmakers initially intended it to be an interim arrangement, but since independence, Article 370 has become a device through which India has sought to maintain permanent control over Kashmir.

After the partition of British India into the independent nation-states of India and Pakistan, the Maharaja Hari Singh, the unpopular ruler of Jammu and Kashmir, had to decide whether to accede to one of the newly formed nations or to retain sovereign control over his monarchy by remaining independent. The princely states were directly ruled by the British Crown until the end of the colonial era. Kashmir itself was sold by the British in 1846 to the Dogra Maharaja in exchange for a meager 75 lakh rupees, creating an undemocratic and unrepresentative head of state. The problem was that the worldview underlying partition maintained that India would be a homeland for Hindus, while Pakistan would exist for Muslims. This made the rule of a Hindu over the predominately Muslim nation of Jammu and Kashmir problematic.

Things came to a head in 1947, when a revolt in the Poonch area of Jammu led by tribesmen coming from Pakistan’s northwest border created a political crisis in the state, culminating in the Maharaja signing a conditional accession with the Union of India. Upon signing the Instrument of Accession, the Maharaja retained his sovereignty over all matters except defense, external affairs, and communication.

The Maharaja’s decision to accede to India went against the demand of the people of Kashmir for independence. But in India, the postindependence government began a three-year-long process of creating the constitutional framework, which would also lead to the formation of Article 370, granting the region relative autonomy to create its own constitution and laws.

Ever since Jammu and Kashmir’s incorporation into India, the country’s Hindu nationalists have always demanded the abrogation of the “special status” accorded to the region, which they believe has stood in the way of its full integration. The Hindu nationalists have considered the provision as an impediment to their dream of establishing an exclusively Hindu nation, seeking assimilation of all other national identities and leaving no space for self-determination.

Five years ago, the Bharatiya Janata Party (BJP) government abrogated Article 370 in the Parliament of India through the passage of presidential orders, effectively ending the last remnants of autonomy for Kashmir. The administration imposed a siege on the whole of Kashmir by restricting people’s movement and banning the internet throughout the state. Prominent political leaders were either put under house arrest or behind bars . Hundreds of young men were arrested and shifted to jails outside Kashmir. The government justified this decision by insisting that it was necessary to prevent any further dissent, to which it would be forced to respond with violence. This included an internet shutdown lasting eighteen months that the United Nations described as “collective punishment of the people of Jammu and Kashmir.”

With Kashmir reduced to a directly controlled territory of the Union, the Hindu nationalist BJP imposed irreversible changes in the valley, including the appropriation of lands and the liberalization of land policies through sweeping changes in the law.

The BJP’s overreach created a constitutional crisis, forcing India’s supreme court to adjudicate on the extent of Kashmir’s sovereignty. Controversially, the Supreme Court validated the BJP government’s moves, undermining the hopes of petitioners who saw the court as a last resort for the resolution of the constitutional crisis. Previously, the BJP had justified its violation of Kashmiri sovereignty by casting itself as bringing development and democracy to the region. The ruling now gave the party legal support.

The Supreme Court, while responding to the question of sovereignty in Kashmir, maintained that the state did not possess or retain any element of sovereignty upon its “accession” to India. To justify this verdict, it relied on documents that Indian and Kashmiri constitutional scholars have consistently questioned. India used these documents to claim that the accession by the last ruling king of Kashmir sealed the region’s fate and unconditionally transferred its sovereignty to India. A proclamation by the son of the last ruler of Kashmir in 1949, the court says, “achieves what would have been attained by an agreement of merger.” What this ruling ignores is that Kashmir did not merge with India completely, as the accession was conditional on the region agreeing to be incorporated into India in a plebiscite that never took place.

Kashmir’s Sovereignty

The judgment argues that Article 370 was a temporary provision, and that the president of India had unlimited power to revoke the arrangement. It concludes this from the fact that the provision is placed in the chapter containing temporary laws within India’s constitution. However, the ruling conveniently ignores the fact that the State of Jammu and Kashmir had negotiated the terms of its membership with India and was also a sovereign power with its own unique position in India’s constitution.

When Indian politicians drafted the law, Gopalaswami Ayyangar, the main architect of Article 370, who served as the prime minister of Jammu Kashmir and later as India’s defense minister, stated in the country’s constituent assembly that Kashmir was not ripe for integration. “We are,” he maintained, “committed to ascertaining [the] will of the people by means of a plebiscite, provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed.”

Prior to the complete annihilation of the postindependence constitutional relationship between India and Kashmir by BJP, there was already a long process of what the scholar A. G. Noorani calls a “systemic hollowing out of Article 370.” This systematic hollowing out was carried out by the Congress Party in tandem with local client politicians. Kashmir has, therefore, always had an inferior status relative to other Indian states.

What made Jammu and Kashmir somewhat autonomous was its power to assert “permanent residency” and the control over the land that had made it somewhat autonomous. Permanent residency allows the state to prevent people from settling on the land and exploiting its resources. This provision has since been abolished by the court’s ruling.

Justice as Epilogue

In an epilogue to his judgment, Justice Sanjay Kishan Kaul, one of the judges in the case, recommended setting up a truth and reconciliation commission in Kashmir to “investigate and report on the violation of human rights both by State and non-State actors perpetrated in Jammu and Kashmir.” Kaul made a mention of the migration of Kashmiri Pandits, the minority Hindu population, from Kashmir in the late 1980s and early 1990s, and insisted that Kashmiri Muslims should “facilitate the people who were compelled to migrate to come back with dignity.”

In his comments, he did not, however, make any specific mention of the violence suffered by Kashmiri Muslims. This is despite the fact that close to seventy thousand people have been killed in the conflict and about ten thousand subjected to forced disappearances by the state — the judges ruling provides no context to these tragedies. Similarly, Kaul made no mention of the Jammu Massacre of 1947, which led to the killings and displacement of thousands of Muslims from Jammu at the time of partition.

The Jammu and Kashmir Coalition for Civil Societies and the Association of Parents for Disappeared Persons, some of the most important organizations involved in the documentation of human rights violations in the region, have been met with significant state repression. The Indian state has also shut down independent news organizations. The Indian liberal class, which has hitherto supported some minimal autonomy for Kashmir, has gotten behind the BJP and accepted the new normal of repression.

That India has used its relative power to violate Kashmiri sovereignty is a sad irony. In 1996, Indian prime minister P. V. Narasimha Rao, in an attempt to convince National Conference (NC), one of Kashmir’s major political parties, to contest the elections, declared that the “sky is the limit,” meaning everything was possible for the people of Kashmir within the Indian constitutional framework.

As a result, in 1999, NC passed an autonomy resolution by a vast majority in the state legislative assembly, only for the BJP to reject the ruling. This made clear that Kashmir’s autonomy, even within India’s constitutional framework, was impossible, and that the only option available was assimilation. Today New Delhi neither cares about NC’s participation in elections nor sells dreams of autonomy to Kashmir. As for the sky, it continues to fall heavily on the people of Kashmir.