The hon’ble Supreme Court of India has
reserved its verdict on the petitions challenging Presidential Orders CO 272
& CO 273 of 2019 which scrapped the
special status accorded to the State of Jammu & Kashmir under article 370 of
the Constitution of India; and The Jammu and Kashmir (Reorganisation) Act, 2019
which bifurcated the state into two union territories. The case itself was
titled “In Re: Article 370 of the Constitution.” At stake is more than the
issues outlined. At stake is the credibility of the Supreme Court of India, at
stake is a people’s faith in judiciary, at stake is the concept of justice
itself.
Persuasive arguments have been addressed
from all sides in the Supreme Court. The history of Kashmir’s accession to
India has been dissected in minute details. But beyond the legal technicalities
and niceties there is no doubt that the events that took place in 2019 were a
fraud on the Constitution of India. The State of Jammu and Kashmir was
dismembered by stealth without consulting its people. It was a stab in the
back. The voice of Kashmiris was silenced and still continues to be silenced.
Even if the Supreme Court of India believes that in a democracy people’s voices
are heard through elected representatives there were no such elected
representatives during the relevant period as the Jammu and Kashmir Assembly
stood dissolved for a year or so.
The Supreme Court is required to
adjudicate the issues within the Constitutional framework and the historical
context in which Art. 370 was introduced in the Constitution of India. It
should do that even if the end result is that the Government of India overrides
the judgement immediately with an ordinance as it did recently by promulgating the
Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 superseding
the Supreme Court judgement which handed over the control of services to the
elected government in Delhi.
The Supreme Court judges should show the
courage and gumption to do the right thing as was done in R.C. Cooper vs. Union of India (bank nationalization case, 1970). The
then SC judges went against the powers that be and struck down the process of
nationalizing 14 private banks. The Constitution (Twenty-Fifth Amendment) Act, 1971 was
passed by the Parliament to nullify the effect of the judgement in R.C. Cooper. But the judgement itself is
one of the most important post-independence judgement of the Supreme Court as
it upheld individual rights by a majority of 10:1. This paved the way for the right
to privacy to be declared a fundamental right about five decades later in Justice K.S. Puttaswamy (Retd.) vs. Union of
India (2017). Even though I support bank nationalization I am also in
agreement with the judgement in R.C.
Cooper as it upheld the constitutional principles and did away with mutual
exclusivity of the Fundamental Rights from one another as was held earlier in
the case of A. K. Gopalan vs. State
of Madras (1950).
The Supreme Court in Kashmir petitions
should adjudicate like it did in R.C.
Cooper and not abdicate its responsibility by upholding majoritarian views
over the laws of the country like it did in the Ram Mandir judgement by basing
it on Hindu belief rather than law. And if it has to do the latter then the
belief of people of Kashmir is the only thing that matters. The majoritarian feelings
of the rest of India are inconsequential to the issue at hand.
The inordinate delay in hearing the
Kashmir petitions and the queries raised by the judges during the hearing
raises concern that the Supreme Court would rather arbitrate or mediate the
issues instead of adjudicating. This does not bode well for the federal and
democratic structure of India if a central government in power with brute
majority can downgrade a state into union territories and disenfranchise its
people. The Supreme Court as the guardian of the Constitution of India should
ensure that constitutional values and morality supersedes all other
considerations; status quo ante as on 05.08.2019 should be restored without
fear or favour. After all Justice S. K. Kaul did articulate in the open court
on 1st October 2019 that if need be it could always “turn the clock
back”!
The
Eternal Struggle
In April 2014, I met a lone, young Kashmiri protestor with a
masked face at the National Protest Site, Jantar Mantar, New Delhi, India (see
picture above) who reminded me that:
“Indians took 200 years
to throw out East India Company and the British colonial rulers …. We Kashmiris
have a long way to go, perhaps another 125 years or less.”
He carried a placard
with the slogan:
“… We are adamantine
people
We are Kashmiris
Nothing can break down our resolve
For right to self-determination”
(You have to stare hard into the placard to get
the message.)
The
Judgement Day
Were the Supreme Court judges to
pronounce a judgement in favour of the Government of India it would be
difficult for 7 million Kashmiris to come to terms with it; the issue of souls
of thousands upon thousands of Kashmiris killed for Azadi must be remembered as
also the thousands of imprisoned Kashmiris in and outside Kashmir. To reconcile
to these issues one would need to remember what M.K. Gandhi wrote in his letter
to all the Britons (Harijan, 6-7-1940):
“You
will give all … but neither your souls, nor your minds.”
Gandhi’s advice was in the context of
Hitler’s army invading Britain even as Britons were urged to resist
non-violently.
Shobha
Aggarwal is a lawyer based in Delhi and a member of PIL
Watch Group.
Email: pilwatchgroup@gmail.com
