Article 370 and the Kashmir petitions: Wake up, Supreme Court!

Anmol Jain and Prannv Dhawan

India’s constitutional democracy is backsliding. Noted scholars have argued that the NRC exercise in Assam and now, the dilution of Article 370, are unconstitutional attempts having the capability to downgrade the credentials of Indian federal and democratic ideals. 

Amidst global critique of the functioning of the Executive, the latest coming from the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards these excesses has also come under the radar. The Supreme Court’s handling of the Article 370 issue and allied aspects of the situation in Jammu & Kashmir is discussed in detail hereunder.

Constitutional commentators have criticized the judicial evasion in these crucial cases of grave rights abuse by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in the case involving the prorogation of the Parliament. In the midst of these, one might locate a solemn defence of the Indian Supreme Court, perhaps in response to these legal commentators, who did not adequately appreciate the ‘practical’ institutional constraints due to the huge backlog faced by Indian courts.

The above  mentioned article argues that the Indian Supreme Court hears a much higher number of cases compared to its counterparts in the UK and the USA. The author traces the reason for the same to the wide jurisdiction that the Supreme Court of India enjoys. This, we believe, is a misinterpretation of the Indian Constitution. Like the UK, the Supreme Court could hear a civil or criminal appeal only after the prospective appellant secures a certificate of appeal from the High Court. Similarly, the invocation of the special leave jurisdiction of the Supreme Court, which attracts a high number of petitions in the Court, is also dependent on the discretion of the Court. Therefore, like the British and American counterparts, the Indian Supreme Court also has the luxury to hear a limited number of cases. (A more elaborate discussion by Dr. Tarunabh Khaitan can be found here). 

The issue of backlog isn’t a creation of the present day. If the Court today feels that it is suffering from high backlog, the agenda of judicial reforms, as Justice DY Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and streamlining of the special leave jurisdiction. However, under no circumstance can the Supreme Court be excused from efficaciously fulfilling its constitutional responsibility. 

The Article 370 issue involves the determination of limits of Executive functioning. It also involves the question of the constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important from among the pending cases than securing the identity of our Constitution. However, while hearing the matter on September 30, the Supreme Court delayed the hearing of the matter, noting: 

“We do not have time to hear so many matters. We have a Constitution Bench case (Ayodhya dispute) to hear.”

When the matter was placed before a Constitution Bench on October 1, the Court again failed to adequately fulfill its role as the protector of liberty by further delaying the hearing.

In addition to this, if the bizarre habeas corpus orders in September are anything to go by, the Supreme Court has uncritically accepted the government’s disproportionate claims about national security that seems to have taken precedence over the ideals of civil liberties. 

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of the citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, communications blackout as well as the constitutionality of the Parliament’s legislation are critical in current times. 

The rights adjudication does stand on a higher pedestal than the determination of the legal title in a religiously charged land dispute matter. This is especially relevant at a stage in our constitutional progress where the safeguarding of the right to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly. Just recently, the Kerala High Court held that access to the internet is a fundamental right. The imposition of blanket restrictions on the entire population’s access to essential and basic communication facilities should certainly merit the considerate attention of the watchdogs of the Constitution. At the same time, curbing politically opposite views by isolating the leaders away from the public and press is a direct strike on the virtues of democratic deliberations.    

The consequences of the Supreme Court’s wide jurisdiction and the liberal interpretation of its powers notwithstanding, the consequent institutional constraints cannot be an alibi for not fulfilling its fundamental constitutional role. If the Court is indeed the strongest apex judicial body in the world, then it must tirelessly commit itself to secure civil-political-socio-economic rights in a timely fashion.

While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions.

It is important to acknowledge that delay in justice delivery is an absolute denial of the same. This cavalier approach to collective punishment of millions of citizens without judicious and comprehensive assessment of the existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the “most powerful court in the world” is continuously failing to fulfill its constitutional duties. 

While declaring the prorogation as null, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the Executive to the Parliament. Having the same ideals as our constitutional foundations, it would not be wrong to conclude that diluting Article 370 at a time when the State of Jammu and Kashmir was functioning under President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu & Kashmir under the amended scheme of the Constitution.

Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, constitutional commentator Gautam Bhatia has argued that the Emergency era weak judiciary has reappeared, though in a different form.

Demonstration of its independence is lacking not only in the realm of highly staked political matters but also extends to judicial appointments, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice VK Tahilramani. 

In its judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence, holding that it is a part of the Basic Structure of the Indian Constitution. However, the Supreme Court seems to have turned a blind eye towards its own internationally recognized jurisprudence.  

At a time when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days, and blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed, the Judiciary must rise to the desired standards and stand as an independent protector of the Constitution. 

We believe that the wide jurisdiction and the high number of cases that the Court handles does not make it the strongest. What affords such status is its past that has seen the likes of Justices HR Khanna, who stood undaunted and ruled against Executive excesses to uphold the constitutional promise. The time has come for the Court to prove it is indeed the Constitution’s sentinel on the qui vive. 

Anmol Jain is a penultimate year student at National Law University, Jodhpur.

Prannv Dhawan is a third year law student at the National Law School of India University, Bangalore.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.