Vijay Hashia
In a watershed moment, the annulment of Article 370 and 35-A on August 5 and 6, 2019, marked a pivotal shift in the constitutional landscape of Jammu and Kashmir. Yet, the denouement of this historic transformation occurred on December 11, 2023, when the Supreme Court, delving into constitutional intricacies, delivered a momentous verdict.
The Supreme Court, in its sagacious ruling, asserted that the Indian Constitution not only supersedes all conflicting provisions within the state but also annuls them, achieving a de -facto merger. The decision, emanating on December 11, 2023, crystallized several key points:
Firstly, the Apex Court clarified that the Jammu and Kashmir Constitution merely served to elucidate the relationship between the Union of India (UOI) and the state, a relationship already delineated by the Instrument of Accession signed by Maharaja Hari Singh on October 27, 1947, and more significantly, by the Constitution of India itself.
Secondly, the erstwhile state of Jammu and Kashmir, post its integration into India, did not possess internal sovereignty distinct from other states, debunking any misconceived notions of distinct autonomy.
Thirdly, the exercise of presidential power to issue a constitutional order abrogating Article 370 was validated, providing a constitutional imprimatur to the transformative step taken by the Union.
Fourthly, the Court underscored the transitory and temporary nature of Article 370, emphasizing that it was an interim measure necessitated by the unique circumstances arising from wartime conditions in the state. The Constituent Assembly of Jammu and Kashmir was envisaged as a temporary body tasked with determining legislative competence until a more permanent arrangement could be established.
Fifthly, the creation of the Union Territory of Ladakh was upheld, with the Court asserting its non-necessity to scrutinize the same for Jammu and Kashmir, considering its temporary nature. The Election Commission was directed to conduct elections to the Jammu and Kashmir Legislative Assembly by September 30, 2024, paving the way for the expeditious restoration of statehood.
Amidst these legal deliberations, one salient aspect emerged that held profound implications for the Kashmiri community – the poignant remarks by Justice S. K. Kaul. Recognizing the intergenerational trauma and suffering endured by the people of Jammu and Kashmir, Justice Kaul advocated for the establishment of a Truth and Reconciliation Commission.
His impassioned plea extended beyond the confines of a single community, envisioning a comprehensive examination of human rights violations perpetrated by both state and non-state actors since the 1980s. Justice Kaul, who himself hails from the Valley, ardently appealed to the Union government to institute a commission that would serve as a platform for a collective telling of the truth.
In elucidating the rationale behind his recommendation, Justice Kaul delved into the painful history of the forced exodus of several lakh families between January 1990 and 1992. Justice Kaul emphasized that the envisioned commission should not be misconstrued as a criminal court but rather as a facilitator of a reparative approach, fostering forgiveness for past wounds. He envisioned it as a transformative tool, enabling the victims to narrate their stories, contributing to a shared national identity.
The judge’s heartfelt addendum recorded the historical burdens borne by the people of Jammu and Kashmir, particularly the Kashmir Valley, emphasizing the need for a collective understanding of the human rights violations endured by its populace. Reflecting on his visits to the region, Justice Kaul lamented the rupture of the social fabric and the deep scars of intergenerational trauma on an already fractured society, and concern for the youth, acknowledging that there is an entire generation that has grown up with feelings of distrust and that it is the greatest duty of reparation owed to the youth who have experienced the consequences of intergenerational trauma.
In advocating for a Truth and Reconciliation Commission, Justice Kaul drew inspiration from global precedents, particularly the South African experiment. He highlighted the cathartic impact of such commissions in fostering reconciliation and peace-building, citing the openness of perpetrators during South Africa’s Truth and Reconciliation Commission as a transformative force.
While acknowledging that his recommendation falls beyond the purview of the Supreme Court, Justice Kaul insisted that the commission should adopt a humanized and personalized approach, focusing on dialogue and allowing diverse viewpoints to emerge. He emphasized that the commission’s establishment should be expedient, given the urgency of preserving collective memories before they fade away.
The legal denouement of Article 370 and 35-A in Jammu and Kashmir has opened a new chapter in the region’s history. Justice and reconciliation, as envisioned by Justice Kaul, now beckon, offering a unique opportunity to heal wounds, embrace the past, and pave the way for a harmonious future in this historically burdened land.
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