SC order on J&K Constitution fuels fresh fears of autonomy erosion in Valley

The High Court said that J&K was unlike other States of the Union and therefore had �its own Constitution with Preamble reflecting core constitutional values, Directive Principles of State Policy, mapping out its constitutional goals, the extent of its executive and legislative powers and its relationship with Union of India�.

SC order on J&K Constitution fuels fresh fears of autonomy erosion in Valley

In its judgement on Friday, Supreme Court snubbed the J&K  High Court for asserting the state’s “sovereignty” and “sovereign powers”, and made it  clear that J&K “had no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India. Expectedly, the judgement has once again fanned the entrenched fears  in Valley about a perceived unremitting onslaught to undermine the state’s autonomy.




In its October 2015 order, J&K High Court had observed that “Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other princely states that signed Instrument of Accession with Dominion of India.  A Division Bench headed by Justice Hasnain Masoodi and Justice Janak Raj Kotwal  ruled that the J&K “continued to enjoy special status to the extent of limited sovereignty retained by the state”. They added that the limited sovereignty or special status of J&K “stands guaranteed under Article 370 of the Constitution”.

The High Court said that J&K was unlike other States of the Union and therefore had “its own Constitution with Preamble reflecting core constitutional values, Directive Principles of State Policy, mapping out its constitutional goals, the extent of its executive and legislative powers and its relationship with Union of India”.

However, the apex court has overturned the order terming “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,” the judges said.

The SC judgement, however, has generated a great deal of unease in Valley where it is seen as fraught with political implications for the state’s already eroded autonomy. The legal experts and the civil society groups have voiced deep concern over the long term fallout of the judgement.  They have railed against the state government for letting the issue go uncontested “implying its tacit support to the government of India and its institutions to maul Kashmir’s identity and special status”.

“Under the Constitution of India and Constitution of J&K, the state enjoys semi-sovereign status. The reason for it is limited and conditional nature of accession,” noted lawyer Zaffar Ahmad Shah told media. “Since the state did not surrender its sovereignty in toto, but only to a limited extent, it continues to enjoy residue sovereignty. It is this sovereignty which gives special position to the state.”

Similarly, Kashmir Centre for Social and Development Studies in its statement said that SC judgement “belittles the Constitution of J&K and undermines the importance of Article 370 of Indian Constitution which guarantees a special status to Kashmir within the Indian Union”.

“The judgement launches a direct ambush on the supremacy of J&K Constitution attempting to reduce it to a mere piece of paper," the KCSDS said in a statement.

There are now fears that in a future case SC could come to the conclusion that Article 35A which gives protection to the state subject laws in J&K has no legal validity. Or re-asseses J&K High Court order on Article 370 on the basis of law.

“Certainly HC passing any decision doesn’t mean it has attained finality, unless SC upholds it with all legal aspects considered.  But the problem in J&K is that such orders are perceived to have a profound bearing on the constitutional relationship between the Union and the state which in turn triggers a deep anxiety about their political identity among people a majority of people in the state,” said Naseer Ahmad, a local columnist.

“And it is this anxiety which certainly is one of the major factors in the recurrent extended unrests in the state leading to a massive loss of lives. It is time that the government offers the re-assurance”.