Air Commodore Khalid Iqbal (Retd)

After nine years of Narendra Modi’s rule, the Supreme Court of India is timid, tentative, fragmented and vulnerable, wary of hurting the central executive which has grown mighty in strength. As an electoral facilitation service to the ruling RSS-BJP duo, the top court of India has decided to conduct “day-to-day” hearings on 23 petitions challenging the abrogation of Indian Illegally Occupied Jammu and Kashmir’s (IIOJK) special status from August 2.  The matter was last heard in March 2020 before going into limbo. After a four years’ hiatus, the timing and the indecent haste of hearing is rather intriguing.

Jammu and Kashmir is a disputed territory; it is one of the longest pending disputes on the United Nations’ agenda. There are numerous UNSC resolutions acknowledging its disputed status; the latest such resolution came in June 1998. Parties to this dispute are: China, India, Pakistan, the people of the State of Jammu and Kashmir; and above all the UNSC, whose responsibility is to ensure that all UN resolutions are implemented by all members, both in letter and spirit.

Packed by the judges of far right mind-set by the BJP-RSS nexus, the top court has chosen to hear the case when election bell are ringing in India. The judicial trajectory of India’s Supreme Court is quite disappointing, especially when adjudicating matters where Muslims are a party. Verdicts on the desecration of Babri Masjid and building of Ram temple in its place, and death sentence of Afzal Guru are two contemporary cases where the Indian top court did ‘mob’ trials. Moreover, all those convicted by trial courts in high profile cases like Gujarat pogrom 2002, and burning of Godra train & Samjhota Express have been systematically absolved by India’s superior judiciary.

An emerging trend seen in the Indian Supreme Court during the Mr Modi’s rule is the evasion of decision-making by delaying the hearing of high profile cases where judgement is likely to displease the Union government. For example, after the announcement of demonetisation in November 2016, several petitions were filed in SC challenging the decision. The petitions had raised substantial legal points such as whether the decision was unilaterally announced by the government without proper consultation with the Board of the Reserve Bank of India. The hearing remained pending for quite some time.

Another disturbing concern stems from the revelations made by the Supreme Court judges regarding the Executive’s interference in the matters of judiciary. Hints regarding this were dropped at the historic press conference held by four senior judges of the top court, on January 12, 2018. Justice Chelameswar, who did most of the talking at the presser, said that administration of justice was not in order and that “many things which are less than desirable have happened in the last three months”. The judges handed over to the media a letter written by them to the then Chief Justice of India Dipak Misra, which, among other things, stated that “cases having far-reaching consequences for the nation and judiciary were selectively assigned to benches of preference without any rational basis”. More clarity on this issue was provided by Justice Kurian Jospeh, who in a post-retirement interview to Times of India said that there was “outside influence” in judiciary. Condemning such practices Justice Chelameswar asserted that “bonhomie” between the judiciary and the government “sounds the death knell to democracy”.

Controversies emanating from the court make it look like a divided house and has resulted in the erosion of moral authority it once enjoyed among the public. The pre-2014 apex court was not hesitant in going against the Central Executive in matters involving high political stakes. But post-2014 Indian Supreme Court presents a meeker version when it comes to dealing with cases that could prick the political interests of the ruling party. India’s 2014 elections had thrown up an interesting political mosaic. For the first time in the past 30 years, the electorate had returned a mandate with absolute majority. Since then, India’s Supreme Court has not been able to stand on its feet and assert its independence in the face of new found aggressiveness exhibited by the Union government having a far right mind-set.

In 2019, the BJP had outstripped the special status of the IIOJK by repealing Articles 370 and 35A of the Indian constitution. This unilateral decision by India threw open the IIOJK territory for external meddling and demographic interventions. This move has opened flood-gates of people from all over India to acquire property and settle in the occupied state, impacting its populace balance and property rights of the locals. The constitution of India had guaranteed that no outsider would get a Kashmiri domicile, and would not own property in Kashmir. This constitutional guarantee was stampeded through a berserk act of parliament, which is illegal under all norms of law.

Commenting on the hearing, a former chief minister of the IIOJK, Mehbooba Mufti, took to twitter to express her apprehensions about the top court’s decision to take up the pleas after “remaining silent for four years”. “There are legitimate apprehensions about why SC has taken up the Article 370 with such alacrity… After remaining silent for four years the decision to hear the case on a daily basis does evoke misgivings,” she said.

Headed by Chief Justice Chandrachud, the “honourable” judges will be in the spotlight of history as they go on to interpret a politically-motivated decision by a hard-line government regarding annulment of Article 370 and 35A, which has literally stripped the Kashmiris off their identity bestowed by the constitution. Actually, this is not the trial of 23 constitutional petitions, rather, it is the Supreme Court of India which is on trial. This is where the top-line judiciary of India will always be quoted and remembered, this way or that way.

Will the Indian top court do justice to Kashmiris? Let us hope against hope!

Air Commodore Khalid Iqbal (Retd) is Director National Security at Centre for Aerospace and Security Studies (CASS), Lahore Pakistan. He may be reached at [email protected]