Will the Supreme Court “Turn the Clock Back” on Kashmir?

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:

kashmir protester

“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: [email protected]


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