The repeal of Article 370 by the Indian government marked a watershed moment in the subcontinent’s history, rooted in the historical and constitutional complexities surrounding the special autonomy granted to Jammu and Kashmir. The move had far-reaching implications, and the Indian Supreme Court’s endorsement of this decision added a legal dimension to already complex geopolitical dynamics.
On 11 December 2023, the Supreme Court of India affirmed the Narendra Modi government’s 2019 resolution to abolish Article 370, which granted special provisions for the administration of the state of Jammu and Kashmir. The bench comprising India’s top five judges unanimously affirmed that the article was considered a temporary provision with the ultimate goal of integrating Kashmir into India. It also said there was no constraint on the President’s authority to revoke the article, and the decision to alter Kashmir was constitutionally valid. Also, judges nullified the Jammu and Kashmir constitution, stating that it was replaced by the Indian constitution.
During a proclamation under Article 356(1) (b), President Droupadi Murmu extended the entire Indian Constitution to Jammu and Kashmir through the issuance of Constitutional Order (CO) 272 and 273, thereby annulling Article 370. Simultaneously, the Indian parliament passed the Jammu and Kashmir Reorganisation Act 2019, dividing the state into two union territories under the direct supervision of the central government.
The Indian Supreme Court’s verdict poses a challenge to Pakistan’s Kashmir policy and necessitates thoughtful strategic considerations in the evolving regional context.
Article 370 of the Indian Constitution originated from the 1947 partition of British India, where princely states were given a choice to accede to either Pakistan or India. Jammu and Kashmir’s accession to India resulted in the inclusion of Article 370, providing the state with special autonomy and governance arrangements. But despite its symbolic significance, numerous presidential orders over the years expanded Indian influence and authority in the state. The state’s possession of its constitution and flag enabled the local people to maintain a distinct cultural and linguistic identity. The abrogation in 2019 aimed to integrate the region fully into India, bringing economic benefits but raising concerns about autonomy, political unrest, and demographic changes. This move, in violation of United Nations Security Council Resolutions (UNSCRs), has raised concerns about disempowering Kashmiris and altering the Muslim identity of the area.
In August 2019, India’s ruling Bharatiya Janata Party (BJP) revoked the special status of occupation by abolishing Article 370 of the constitution. This law restricted the authority of the Indian parliament to enact laws in states with the exception of defence, foreign affairs and communications. The move allowed people from the rest of India to own property and settle permanently in Kashmir, which aimed to change the Muslim majority demographic by introducing Hindu settlers.
Public outcry and legal challenges followed the abrogation, with two arguments emerging within the petitions, one challenging the constitutionality of the presidential order and the second contesting the division of the former state of Jammu and Kashmir into two union territories. They also stated that the President could not revoke Article 370 without the Constituent Assembly’s approval. Chaudhry Anwar ul Haq, the Prime Minister of Azad Jammu and Kashmir (AJK), has expressed that the Supreme Court’s decision to uphold the revocation of Jammu and Kashmir’s special status has revealed significant shortcomings in India’s justice system, highlighting perceived historical biases against Muslims.
Former Jammu and Kashmir Chief Minister Mehbooba Mufti saw the court’s decision as a death sentence for the region, lamenting the defeat of an inclusive vision that brought together people of various faiths. A prominent cleric described the situation in Kashmir as an ongoing humanitarian and political crisis, expressing a sense of betrayal among those who trusted Indian leadership during the partition. The AJK legislative assembly condemned the verdict, asserting the territory’s status should be determined by its inhabitants through a UN-sponsored plebiscite.
The BJP’s goal of revoking Kashmir’s special status, as stated in their 2019 election manifesto, materialised in 2019, leading to ongoing repercussions in Jammu and Kashmir. Since 2014, Kashmir has not witnessed an assembly election. In 2015, the BJP formed a coalition government, and Mehbooba Mufi’s People’s Democratic Party (PDP) collapsed when the BJP withdrew its support. The court has mandated the conduct of assembly elections in newly designed union territories.
Legal experts like Fali Nariman have expressed their strong disagreement with the Supreme Court’s Kashmir judgement, stating that the judgment was “totally erroneous and bad in law”. The decision, seen as constitutionally flawed, has set a perilous precedent, endorsing executive actions that undermine Indian democracy and federalism. Despite recognising flaws, the court validates the abrogation, deepening the violation of historical promises and setting the nation on a dangerous path. The geopolitical fallout can hinder dialogue between Pakistan and India, and experts like Michael Kugelman have highlighted diminished chances for resolution. Shuja Nawaz, a Distinguished Fellow at the South Asian Center, Atlantic Council, has highlighted the challenges for Pakistan following the court verdict and has suggested two choices for Pakistan: integrating the Azad Kashmir and Baltistan as de jure provinces or engaging in cross-border unrest. The decision is expected to impact political, diplomatic and economic relations between India and Pakistan. Pakistan has firmly rejected the verdict, emphasising international recognition and condemning India’s actions as a breach of international law and UNSCRs.
The Foreign Minister of Pakistan has penned letters to leaders of international organisations, drawing their attention to the illegality of the Indian Supreme Court’s judgement on the state of the Indian Illegally Occupied Jammu and Kashmir (IIOJK). He has stressed that according to international law, the final status of an internationally recognised disputed territory could not be determined by domestic legislation or judicial verdicts. The Foreign Minister has condemned India’s illegal actions in IIOJK, calling the Supreme Court judgement a breach of international law and UNSC resolution. Pakistan’s Chief of Army Staff has raised the issue with the UNSC Secretary General, emphasising the need for a solution aligned with the UNSCRs and the Kashmiri people’s aspirations.
The decision’s impact has extended beyond borders. Since it overlooks UN Charter conditions, it has faced rejection from China regarding the Ladakh region. While politically welcomed in India, the decision faced criticism for constitutional flaws and its potential to weaken institutional limitation on power, undermine federalism and impact the democratic process. However, Indian Prime Minister Modi saw the verdict as a declaration of hope, progress and unity for sisters and brothers in Jammu and Kashmir and Ladakh. Indian sources state that the verdict signalled an end to separatism and prompted positive change, including improved security, reduced terrorism, increased investment and enhanced tourism. Another source highlighted the period from 2017 to 2023 as an amazing transformation and the verdict as a brilliant step. It maintained that over four years after the abrogation of Article 370, the flow of tourists has increased more than ever due to policy changes and infrastructure development.
Despite these perspectives, the strained relations between India and Pakistan, fuelled by the Kashmir issue, became even more contentious. Security concerns and accusations of supporting cross-border terrorism escalated, adding complexity to an already contentious situation. The human rights crisis in Jammu and Kashmir persisted with a call for increased international and UN response. The uncertainty surrounding the Kashmir issue continues to linger, demanding a nuanced approach for lasting peace in the region. Also, the impact on Azad Kashmir is evident. The Indian Supreme Court’s verdict poses a challenge to Pakistan’s Kashmir policy and necessitates thoughtful strategic considerations in the evolving regional context. An inclusive approach is crucial to addressing the concerns of all stakeholders for a sustainable and peaceful resolution of the Kashmir issue.