Has SC verdict given a healing touch to ailing Kashmir?

Is it not an endorsement of the BJP agenda? Three issues—the Ram Temple, the triple talaq, and Article 370—have been at the top of the BJP’s agenda. The honorable Supreme Court failed to appreciate that the demand to repeal the article has been one of the top three agendas of the BJP and has been used to polarize the nation

The nation has again gotten engrossed in routine, mundane affairs, and no noise is in the air of a historic judgment in more than one way. There should be no doubt that the Supreme Court (SC) verdict on the abrogation of Article 370 has only reinforced the recent trends in the judiciary of legalizing political decisions of the Modi government. In the decade that will close soon, we can hardly find any judicial verdict that has an unsettling effect on the political plans of the current regime. They have mostly helped legitimize government decisions.

The Supreme Court decisions on the Babari Mosque demolition, the Rafael deal, the note ban, and the unseating of the Uddhav Thackrey government in Maharashtra are some examples. Most of the time, the Court evades questions that have an important bearing on democracy. In deciding this case too, the Supreme Court has ignored history, geopolitics, and issues that will affect the future of Indian democracy. It really leaves one wondering how the apex court could shut its eyes to all those questions that have been troubling our republic and the entire subcontinent since the day we expelled the British from our soil.

By validating the government's decision to repeal the article that gave special status to Jammu and Kashmir, the Court disappointed all those who were expecting some innovative ways to come from the highest judiciary to give a healing touch to the ailing region. It is harsh but true that the faith of the Kashmiris in the Indian State has been further shaken. In its attempt to find a way to legalize the government decision, the Court has ignored the historical antecedents of the Pakistan-sponsored attack on Kashmir in 1947 and its accession to India. It has also ignored the diplomatic ramifications of such a verdict. We can see how Muslim countries have reacted to the verdict.

The Court has completely forgotten that the procedure adopted in repealing Article 370 does not take cognizance of the people’s right to participate in deciding the fate of their State. Does it not violate the federal theme of the Constitution on which our republic was founded? The state assembly was dissolved, and the Government of India decided on their behalf that their state would have no special status. The Supreme Court has cited several laws and judgments to validate the decision. But how can it satisfy the ordinary people who think that the government of India has punished them by snatching the special status of their state? Were the makers of our constitution unaware of what they were doing when they gave a special status to the state? They did it to uphold the best principles of federalism and secularism.

How can one forget that Kashmir set a high example of secularism when the subcontinent was burning in the fire of communal hatred? Was it a small thing that the people of a Muslim-majority province chose India as their nation when their counterparts a few kilometers away in Punjab were involved in ethnic cleansing? When Hindus and Muslims were determined to expel each other from their region, the Kashmiris were cohabiting in the snow-filled valley of Kashmir.

The Chief Justice of India has tried to justify the decision of the Government of India to repeal Article 370 through a Presidential Order on the ground that it was a policy decision. He has said that it completely falls within the realm of the executive. He said that the decision was subject to review if his intention was mala fide. He concludes that his intention was not mala fide. He says that the President made the whole of the Indian Constitution applicable to J&K under Article 370 (1) (d) to ensure its complete integration into India.

Is it not an endorsement of the BJP agenda? Three issues—the Ram Temple, the triple talaq, and Article 370—have been at the top of the BJP’s agenda. The honorable Supreme Court failed to appreciate that the demand to repeal the article has been one of the top three agendas of the BJP and has been used to polarize the nation. This has been the oldest of all the agendas that the RSS, the parent organization of the BJP, has been raising all these years since independence. How can this fact be ignored? How can the Supreme Court accept a polarizing agenda as a policy decision?

The Chief Justice of India has taken another ground to uphold the abrogation of the article: its temporary nature. However, the verdict has been criticized by none less than the eminent jurist Fali Nariman. He has pointed out that that abrogation should have been done by amending the constitution. According to him, Article 368 of the Constitution empowers Parliament to amend any provision of the Constitution, whether it is temporary or permanent. It is noteworthy to quote Prime Minister Jawaharlal Nehru from his speech in Kolkata on January 1, 1952: "You can see that there can be no greater vindication than this of our secular policies, our Constitution, that we have drawn the people of Kashmir towards us. But just imagine what would have happened in Kashmir if the Jana Sangh or any other communal party had been at the helm of affairs.”

The Supreme Court has also tried to avoid adjudicating on the issue of dividing the State into two union territories. It has simply relied on the government’s assurance that Jammu and Kashmir will soon return to Statehood. Has the Court given a political issue to the ruling party to use in the 2024 elections? The Court’s direction to the Election Commission to hold assembly elections by September 2024 is hardly convincing when the decision to return to Statehood is in the hands of the government.

(The author is a senior journalist. He has experience of working with leading newspapers and electronic media including Deccan Herald, Sunday Guardian, Navbharat Times and Dainik Bhaskar. He writes on politics, society, environment and economy)