Article 370 | Judgment approves correction of historical blunder: Senior advocate Rakesh Dwivedi

Rakesh Dwivedi on SC judgment on Article 370

Senior advocate Rakesh Dwivedi, who defended the abrogation of Article 370 by the Union government, told Moneycontrol that the Supreme Court's judgment upholding the abrogation approves the correction of a historical blunder.

He said, "The judgement upholds abrogation of 370, and thereby approves the correction of a historical blunder of Nehru-led Congress in 1947 of appointing Mountbatten as Governor General and Chairman of Defence Committee, and referring dispute to United Nations Organisation. Article 370 was a sequence of that blunder."

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On December 11, an SC constitution led by Chief Justice of India DY Chandrachud upheld the validity of the Presidential order scrapping Article 370 of the Constitution which gave special status to Jammu and Kashmir and the bifurcation of the state, saying it didn’t retain an element of sovereignty after accession to India.

Dwivedi said, "The judgement is historic and settles controversy so that all move on with new spirit to rebuild Kashmir. Justice Kaul's recommendation for a truth and reconciliation commission or some other body to heal past wounds, though not shared by other judges, made via an epilogue, is for government to consider."

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Justice Sanjay Kishan Kaul, in his judgment upholding the government’s decision to scrap Article 370, suggested setting up of a “truth and reconciliation” commission in Jammu and Kashmir.
The statement suggests that the Supreme Court's senior-most judge, after the Chief Justice of India, is advocating for a commission to investigate violations of human rights by both state and non-state actors since the 1980s.

"The commission must be set up before memory escapes. The exercise must be time-bound. There is an entire generation of youth that has grown up with a feeling of distrust and it is to them that we owe the greatest day of liberation," Justice Kaul, who hails from Kashmir, said in his concurring judgment.

He noted that, the court has held that Jammu and Kashmir is integral part of India after accession and did not retain any sovereignty and that Jand K Constitution was subservient to Indian constitution. He said, "As a consequence of abrogation of 370, J&K constitution automatically ceases  and does not survive. JK is now at par with other states and enjoys identical federalism."

In its judgment, the apex court further said the bifurcation of the state into union territories of Jammu and Kashmir and Ladakh was valid but ordered restoration of J&K’s statehood at the earliest. It also directed the Election Commission to hold election in J&K by 30 September 2024.