The Supreme Court judgment in favor of the BJP government that abrogated Article 370 of the Constitution and scrapped the special status granted to the then State of Jammu & Kashmir (J&K) on August 5, 370 has become a matter of debate.
A lot has been written on the Presidential Order C.O. 272, but the precursor to it was the Proclamation by the President of India vides G.S.R. 1223(E) dated 19th December 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019.
The presidential order G.S.R. 1223(E) dated 19th December 2018 had said; “No Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.”
However, the Apex Court in its judgment on the abrogation of Article 370, did not take into account the Presidential order that clearly stated that during the Presidential rule in Jammu and Kashmir, there would be no suspension of altering the name or boundary of the State.
The Supreme Court believed that in a democracy people’s voices are heard through elected representatives, but in Jammu and Kashmir Assembly stood dissolved during the relevant period and as such there were no such elected representatives. If that’s the case, there was no merit in the case of the government decision of August 5, 2019.
If the Kashmir petitions were to be decided as per law and constitution, then the SC judges had no option but to strike down the Presidential Orders abrogating Article 370.
There is no doubt that the events that took place on August 5, 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 of Federalism in India. The voice of Kashmiris was silenced and continues to be silenced after the recent judgment.
In the aftermath of the events on 5 August 2019 and with the entire valley locked up and all the leaders arrested (many are still under detention) the only hope left for the people at that time was the judiciary. They moved to the Supreme Court intending to challenge the constitutionality of the Presidential Orders C.O. 272 & C.O. 273 (POs) and The Jammu and Kashmir (Reorganization) Act of 2019.
The people of J&K wished that the Apex Court would quash the presidential order because the law of the land was in their favor. But in the end, it turned out to be a travesty of justice because it appears that even the highest court of the country was working in tandem with the Central government.
It seems the judiciary was more inclined to satisfy majoritarian feelings rather than the feelings of the central party in this case. The match-fixing is obvious in the SC 370 judgment. The Supreme Court has abdicated its responsibility of upholding the law of the land and decided the case against the principal stakeholder of the case. This is the second time the case of match-fixing has come to limelight. The first was in the case Ram Mandir judgment where the verdict was based on Hindu belief rather than the claims of the aggrieved party.
It seems justice was not meant for the will of the people of Kashmir that only mattered in this case but it went to favor the government of the day. The judiciary openly sided without pretense with the government and shifted the sovereignty from the will of the people to the will of the ‘Monarch’.
The judgment is it beyond “Kafkaesque.” In Kafka’s ‘The Trial’ Josef K., the protagonist never gets to see the charges framed against him even up to the point of being executed! In the case of Kashmir, the judges never got to see all the orders of the government about which the judgments were passed. Kashmir's case is undoubtedly beyond “Kafkaesque.”
The SC Judgment does not bode well for the federal and democratic structure of India. If a central government in power with a 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 supersede all other considerations. It is often said that if the executive errs, then people go and knock on the doors of the judiciary for justice. But if the judiciary also errs and favors the executive, where will the people go?
In the 370 judgment, the Supreme Court did not show any courage and gumption as in R.C. Cooper vs. Union of India (bank nationalization case, 1970). The R.C. Cooper judgment is one of the most important judgments of the Supreme Court as it upheld individual rights by a majority of 10:1. Ten judges opined against the government, and only one stood by the government’s position.
The SC judgment in 370 cases, no doubt has helped the BJP government have it way over the people of Kashmir, but it has lit up the fire of resistance even perhaps more ferociously than the Raja’s accession of Jammu and Kashmir with India without the consent of its people.
It may have been nice if the Supreme Court had also given a prescription on how to win the hearts and minds of the people and the measures that the government may take to heal the swollen wounds of the people. Sadly that’s not its brief!
However, to reconcile these issues one may remember what Mahatma Gandhi said in Harijan, 6-7-1940. “You may give all … but not your souls or your minds.” Regretfully, the SC has done both, sold its souls & minds.
[The writer, Syed Ali Mujtaba, is a journalist based in Chennai. He can be contacted at syedalimujtaba207@gmail.com. Views expressed are personal.]
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