Kashmir: Why is top Supreme Court layer 'too respectful' of Govt of India sensitivities?

CPI-M leader Sitram Yechury (left) with party colleague in Kashmir

By Anand K Sahay*
The decision of the princely state of Jammu and Kashmir to sign the instrument of accession -- codified through Article 370 of the Constitution -- to become a part of India, is integral to the evolution of federalism in the country. According to a famous Supreme Court ruling, federalism forms a part of the “basic structure” of our Constitution. It cannot be tampered with by any government or authority.
The Government of India last month when it ended J&K’s special status -- which had been a condition of joining the then Dominion of India -- guaranteed though Article 370, and the subsequent Presidential Order of 1954 (alongside the Delhi Agreement of 1952 that received endorsement from our Parliament as well as Kashmir’s Constituent Assembly).
Jettisoning this compact of provisions, which together delineate the pathway for J&K to become an “integral” part of India, has caused serious injury to the Constitution’s basic structure since this pathway is an essential building block of our federalism, historically and juridically.
The tampering of such magnitude, amounting to ham-handed constitutional annexation for which there is no explicable justification, can raise speculation about the very status of J&K since the state joined India through accession and Article 370. If this was not available, the action of the Maharaja on October 26, 1947 (to accede to India) may have been wholly different.
Aside from questions of history and constitutionality, at the purely human level and at the level of human rights, practically the entire Kashmir valley has been reduced to a militarised spectacle from the first days of August, causing serious injury to the notion of the protection of life and personal liberty which Article 21 of the Constitution.

The sloth of the apex court was visible when the personal liberty of thousands was at stake

This is arguably the most important aspect of India as a constitutional entity. And yet, literally thousands of our Kashmiri citizens have been locked up by the state, and have been fired on by pellet guns -- which the government belatedly acknowledged -- if not guns with bullets, which the state strenuously denies, though there is no way to verify in conditions of curfew and communications blackout.
Unfortunately, our Supreme Court has slept through it all. It has become the real Rip van Winkle of our times as far as protecting the life and liberty of our citizens is concerned. In the past fortnight, as many as 14 Kashmir-related cases have been filed in the Supreme Court. These relate to the constitutional crisis imposed on the people by the regime, as well as repression and the suppression of human rights which have followed as a matter of course.
The top court has not disregarded them. It intends to hear them, it assures us. But, when? Sometime in October, it says. This is bizarre. It may have been expected that when the country is faced with a politically kinetic development of life-shattering proportions such as Kashmir, the Supreme Court would have moved with despatch, and would have wanted to be heard by our citizens on one of the most material of cases of the post-independence era with a sense of urgency.
But it chose to remain slothful. More, the sloth of the apex court was visible when the personal liberty of thousands was at stake. And this was at a time when there were reports that even eleven-year old boys were being taken to the lock-up from their homes as the government showed unbounded enthusiasm to safeguard the country’s security.
As matters stand, there are more than a dozen petitions challenging the Centre’s action in respect of J&K. But even if there had been no petition, a court which is alive would have been expected to take its responsibilities to the people of India with a greater sense of seriousness and sobriety. It would have innovated to plough into the question of Kashmir created by the government in a delusionary moment.
This was expected of a court whose lineage boasts Justice Krishna Iyer, who blazed the trail of jurisprudence in India with the idea of public interest litigations. In contrast, today we have a court which is demonstrably sluggish when there are more than a dozen appeals before it, including those relating to personal liberty.

National security advisor Ajit Doval in South Kashmir

Just look at the story of CPI(M) general secretary Sitaram Yechury’s recent habeas corpus writ petition in respect of the safety of his colleague Yusuf Tarigami, a respected and prominent politician from southern Kashmir who is widely regarded as a voice of sanity. Tarigami has not been heard of in weeks.
A bench led by Chief Justice of India Ranjan Gogoi permitted Yechury to visit his colleague in Kashmir in order to satisfy himself that no harm had come to the senior leader. But the court also practically wagged its finger at Yechury, warning him not to cross the line, warning him to ensure that he engage in no other activity and to avoid political activity altogether. Why? Because the situation in Kashmir is very “sensitive”.
Does this not suggest that the uppermost layer in its DNA is to be too respectof the government’s sensitivities? This at a time when the court will be hearing cogently argued appeals by the government’s opponents -- especially that of the National Conference -- on the question of recent developments in Kashmir can hardly inspire confidence.
Issuing an instruction to the leader of one of the oldest political parties of the country who has never shown a proclivity for irresponsible actions or cheap theatrics is to undercut the value of the party system in our democracy.
Yechury is no rabble-rouser. He is no terrorist. The Supreme Court could have righted the balance somewhat in the favour of democrats if it had imposed no conditions on the CPI(M) leader and looked the other way if he addressed a few citizens, or even a press conference in the valley. The government needed to be told a few plain truths.
What an irony. Rahul Gandhi is forcibly turned away from Kashmir by the security forces at the Srinagar airport. The dozen top leaders of opposition parties accompanying him are shown the door. The media with them, the women included, are roughed up. Yechury is spoken to sternly by the Chief Justice without provocation. But national security advisor Ajit Doval is permitted to be photographed displaying the common touch with villagers at a roadside in South Kashmir. Voila. There goes democracy.
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*Senior Delhi-based journalist. This article first appeared in The Asian Age