DURING A TELEVISION interview with India Today in December 2023, the late jurist Fali Sam Nariman, one of the country’s more prominent liberal voices, defended the Supreme Court of India’s verdict that month endorsing the abrogation of Article 370 – the part of the Indian constitution that recognised Jammu and Kashmir’s special, semi-autonomous status within the Indian Union, which the Indian government had done away with in 2019. The move also entailed stripping Jammu and Kashmir of its statehood.
According to Nariman, the appropriate procedure for the government to effect the abrogation should have been through Article 368, which outlines the process for constitutional amendments. The government, under the Bharatiya Janata Party (BJP), had forced the move through unilaterally via a presidential order under Article 370 itself, and then enforced its will in Kashmir with a brutal lockdown and internet blackout.
In reality, even amendments to the Indian constitution made under Article 368 were subject to the procedural requirements outlined in Article 370 for them to be applicable to Jammu and Kashmir. This is explicitly reinforced by the first Constitution (Application to Jammu and Kashmir) Order of 1954, also known as the Basic Order, which was issued under Article 370. But Nariman prioritised the procedural aspects of the government’s move over the question of its inherent legality, and in doing so chose to overlook the limitations set out in the constitutional framework that governed India’s relationship with Kashmir after Independence.
Nariman’s seemingly critical but blinkered point of view reflected a broader trend among much of India’s liberal intelligentsia on Article 370, just as on all things Kashmir.