Kashmir: Supreme Court must take note of ground reality

Taking serious note of the ongoing crisis in Kashmir in the aftermath of the abrogation of Article 370, Chief Justice of India Ranjan Gogoi said on September 16 that he will himself visit Srinagar to take stock of the situation. A bench of Chief Justice Gogoi, Justices SA Bobde and SA Nazeer said since the shutdown was in the valley, the cases pertaining to it should be ideally dealt with by the Jammu and Kashmir High Court. Justice SA Bobde, one of the three judges on the bench, responded to the Attorney General's outline of the situation in Kashmir: “These are formidable reasons. A terrible state of affairs”. “We trust you will endeavour to establish the situation in Kashmir.” the judge told the Centre, asking the government to file an affidavit within two weeks.

Ever since August 5, the Kashmir valley has been in shutdown mode and there has been undeniable suspension of basic rights of the citizens. It was a planned move by the Central Government marching in a huge posse of security forces even while they asked the Amarnath Yatris to leave. Then on August 5, the Rajya Sabha, in open, honest and transparent debate, viewed by the whole world, annulled the impact of Art. 370 and 35A of the Constitution of India by a 2/3rds majority. Then, on August 6, the Lok Sabha too saw a fierce debate and Presidential proclamations becoming the law, again by 2/3rd majority.

There was near unanimity before both houses of Parliament. The protagonists outnumbered the opponents by a huge margin. As for the nation at large, there was overwhelming support and the opposition, if any, was muted and dissipated. Thus, India voted with the Modi/Shah gambit.

One has to concede in the same breath, that Kashmiris did not vote with India. The vote that Parliament cast in the name of the J&K State Assembly or Constituent Assembly, as one may choose to construe, was in the name of the Governor, when the State was under President's rule. The route embarked on by Modi administration without a Constitutional amendment is now subject matter of challenge before the Supreme Court. We await a verdict. While so, we have the spectacle of the curbs in media freedom and freedoms of the citizenry in the valley coming in for challenges on a daily basis. The 'liberals', as is their wont, have been taunting that the Supreme Court was now an "Absentee Constitutional Court' and that the apex court may be kowtowing to the wishes of the Executive by refusing to yield to the upholding of the individual's rights. They have cried foul that it was worse than when the Supreme Court upheld the draconian measures introduced by Mrs Indira Gandhi, during the Emergency, as captured in the famous blot on Indian democracy - ADM Jabalpur case. Only Justice HR Khanna stood out as a beacon with his dissent which has lived and ADM Jabalpur verdict was cast to the dustbin which included a verdict from Justice Dhananjay Charachud setting his father - Justice Y V Chandrachud's. Supreme Court today, is no different than then, they claim.

It is all fine to argue on these lines, as if the Supreme Court was playing footsie with the Executive and not standing up for the fundamental rights of the ordinary citizens in Kashmir.

It is glamorous to glorify such elements. What ought not to be forgotten is that the Constitution of India is for India. It is not for Kashmiris alone. Just as the Kashmiris have a right over every inch of Bharat, We the people have a reciprocal right and now a reality too.India has given thumbs up to virtual abrogation of Art.370 and the consequent of demise of Art.35A. The clampdown in Kashmir is for a reason. Ever since 1990 as Justice Bobde rightly flagged of the world has seen bloodshed, death, gory, mayhem and depradations. The land that poet Firdaus effusively talked of as Paradise was under severe strain. India felt distant from Kashmir. Now Kashmir stands integrated. We have One Nation, One Flag. The constitutional rights of each one of us citizens ought to be respected, just as that of Kashmiris. Who is the best Judge of the security on the ground? Who has the inputs to decide on what is best to preserve national security - Executive of the day. Can a constitutional court, even the Supreme Court, direct the security forces to leave? Or direct the Central government to lift the clampdown in entirety on a timeline dictated by the Court, at the instance of these clamouring 'liberals'? What about the voice of rest of India?

 No one in his right senses would suggest that curfew like situation should be the new normal in Kashmir. We would like the Kashmiris to be as free as we are in the rest of India, with all their constitutional rights intact. But we cannot be oblivious to the ground reality in Kashmir valley, born of years of terrorist invasion from across the border, and the reality of Kashmiri Pandits, 4 lakhs plus, rendered refugees in their own nation. A holistic view is the need of the hour. One is reminded of the famous decision of the US Supreme Court in New York Times vs US famously called Pentagon Papers case. Even while 9 Judges unanimously ruled that prior restraint of publication of Pentagon papers was wrong, Erin Griswold with a brilliant argument extracted a huge 'concession' from the Bench, which bears telling now.

 “Now, Mr. Justice Hugo Black, your construction of... [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law', and I would seek to persuade the Court that that is true ... [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and...the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.” That is Erin Griswold, Solicitor General United States, arguing in favour of prior restraint imposed by US President Richard Nixon's administration from the publication of Pentagon papers, exposing the secret documents relating to the Vietnam War. The judges were persuaded to concede that the US Government failed to provide 'evidence; that publication of the Pentagon Papers would expose the nation to 'serious security risk' or a 'nuclear holocaust' or “irrevocable impact on international relations' to accept 'the inherent power of the State”. In India, we have serious national security implications. The belligerence from Pakistani Prime Minister Imran Minister and bellicose threat of use of nuclear arsenal too, cannot be ignored. The Supreme Court is duty bound, as a court of constitutional conscience, as the court of the nation at large, and not of Kashmiris alone, in this critical hour, to take note of ground reality. It is time to play patience, for far too much is at stake for us all, including our Kashmiri brothers and sisters.

 (Author is practising advocate in the Madras High Court)