Article  370 in the Court of Last Appeal

Hearings of the five-judge Constitution Bench of the Supreme Court will commence from today, October 1.

The cynical view that  these hearings may be simply pro forma is speculative and ill-founded.

Having repudiated the specious official plea that any consideration of the reading down of Article 370 would have “cross-border” implications and even lead to the matter being “sent to the United Nations”, it is fair to assume that the court intends its consideration of the constitutional merits of what has happened to be a strenuous and thorough one.

It can be understood that the court’s prima facie view of the petitions filed by diverse parties for the quashing of the move must have sufficiently persuaded it to  issue notice to the government – something that is never a mere pro forma decision.

That the intervening period between that decision and the beginning of hearings may have tended to make the  revocation a fait accompli to many – especially those who  favour  the revocation – may be a  perception that the state would like to turn  into  reality, but such extraneous matters rarely  impinge on the proceedings of the courts, especially the highest court in the land.

Imagine that the prime minister has been pleased to say that those who are troubled by the revocation of Article 370 are those who “support terrorism”!

Such a sweeping view would inevitably include any judge in the land who might disagree with the executive on the constitutionality of  the measure it has taken vis a vis Jammu & Kashmir. Indeed, a former judge like P.B. Sawant has already expressed the view that the revocation has been illegal. The prime minister’s ill-advised pronouncement can thus cause  a deep pickle; yet the nation has the unswerving faith that such statements, even if coming from the numero uno in the executive, will not burden the deliberations of the Supreme Court.

It should be obvious now that the governments’s claims of the so-called return to “normalcy” in the valley  are emphatically repudiated by the situation on the ground. As had been pointed out earlier, the government’s one-sided measure has had the consequence of disaffecting practically every citizen in the Kashmir Valley, including all those political  forces which have thus far stood resolutely with the accession of the state to India.

That ordinary Kashmiris are not turning up in schools and colleges, in market places, or opening shops despite dire economic hardship, can only mean that they remain unreconciled with the heavy hand that has been dealt to them without their democratic and statutory consent. Nor is it  incomprehensible that even those few who might want to cooperate with the authorities are well-advised not to do so for obvious reasons. The question then is how the powers-that-be hope to restore “normalcy” to the Valley and other  disaffected areas, given that the use of coercion, even in Kashmir, has its limits and inevitably boomerangs in world democratic opinion. A fact that stands by itself, however much the government may seek to link it with the perfidies perpetrated by a desperate Pakistan.

Such is the state of public life in the valley that panches and sarpanches, a majority of whom were elected unopposed some months ago, are unable to step out and be among their people. Nearly all of them, in anticipation of elections to Block Development Centres, have been tucked away in hotels in Srinagar with elaborate security details. Reports also speak of protests, whereupon some relaxations previously effected have again been withdrawn, such as incoming call access to landlines, about which such positivist clamour was raised by government spokespersons.

It is hardly conceivable that the Supreme Court can be looking to just finding a modus vivendi of a “pragmatic” nature in a matter that involves some fundamental issues pertaining to the  history of the  accession of the state to India. Neither the deliberations of the Indian constituent assembly bearing on that accession, nor the agreement made between the state and the Union in 1952 may be wishfully set aside. A reading of the petitions made to the court make it clear that the grounds for restoration of Article 370 set forth therein are strongly substantiated by the legal/constitutional background to the inscription of the article in question into the Indian constitution.

As in the case of the ongoing court deliberations on the issue of the disputed site at Ayodhya, its  consideration of the petitions pertaining to Article 370 will not but constitute landmark events, and its decisions deeply consequential to the constitutional and social well-being of the realm.

Rarely has the court had to bear the sort of onus that now devolves on it.

The fact that comes to mind is that whereas in the United States of America checks and balances over the exercise of executive power remain credible and  potent, and the media a force owing to the all-important first amendment to the US constitution, the only recourse left to Indian citizens seems to be the judiciary.

And  recalling the  recent troubled episodes pertaining to the court itself,  no one knows this better than the Supreme Court of India itself.

No court judgment can ever be expected to appease any one side of any issue. The citizen only hopes, more than ever before, that the court of last appeal's decision will yet again consolidate her faith in  this most reassuring of institutions.

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