Former Union Minister for Law & Justice
The Modi-Shah gamble in Kashmir is about the ‘audacity of hope’, to borrow the title of Barack Obama’s autobiographical book. The decision to abrogate Jammu and Kashmir’s special status and to reorganise the state as union territories is premised on the promise of a peaceful and glorious future for the Kashmiri people. History alone will pronounce whether the audacious move is before its time or represents an idea whose time has come. While popular national sentiment leans in favour of the decision for its utility as an integrating force, the constitutional legitimacy of the process is in question. The Supreme Court has been petitioned to pronounce upon the constitutionality of what is essentially a political decision.
Constitutionally speaking, critics, including the petitioners, view the disheveling of Article 370 as an assault on the nation’s federal structure, a brazen negation of our solemn historical obligation to the people of Kashmir codified in the Instrument of Accession and a ‘constitutional monstrosity’. It is contended that Clause (3) of Article 370 cannot be used to emasculate the core of the constitutional guarantee, and, such an interpretation is, therefore, a legal impossibility. It is the critics’ case that sovereign power to reorganise the states has never been used for the diminution of the status of a state, but only to elevate union territories to full statehood, India being a Union of States under the Constitution. A principal legal objection relates to non-endorsement of the Union Government’s unilateral decision by elected representatives of the people, an essential requirement under the original constitutional dispensation. The decision, resulting in vastly circumscribed areas of legislation within the remit of the Assembly of the newly created union territories, is seen as an “…evisceration of the right to full democratic participation of an entire section of people….” and suborning of the constitutional principle to transient majoritarian impulses. This, it is argued, disregards the auxiliary constitutional protection against excesses of executive power and is, therefore, violative of Article 14.
The contra arguments advanced with equal vigour in defence of the decision are not without their appeal. In his parliamentary intervention, Home Minister Amit Shah invoked social and economic justice, the principle of gender equality and hope for peace and progress in the state through the devolution of full benefits of development to the Kashmiri people, as in the case of other citizens, in pursuance of the constitutional guarantee of equality under Article 14. It is asserted that the special status and privileges available to the people of Jammu and Kashmir for the last seven decades have not served their purpose and that it is time for the Kashmiris to enter into a new national pact for strengthening the edifice of peace and local democracy in the state. The decision is, thus, projected as one in aid of core constitutional values.
The foundational argument of the government is that the Constitution cannot remain frozen in time, that nations and democracies evolve in response to contemporary situations, a static society stagnates with its resultant consequences and that succeeding generations must discover the way forward in the image of their own experiences without the shackles of history. The government contends that Article 370 is expressly stated to be a temporary constitutional measure, whose applicability and use is essentially a function of the government’s evaluation of its efficacy in the given context. The Union Government may contest the jurisdiction of the court and argue that a policy-driven political decision taken in the interest of the unity of India and progress of the Kashmiri people by a duly elected government cannot be subject to judicial review and is not amenable to ‘judicially manageable standards’. The court will be cautioned against entering into the ‘political thicket’, citing constitutional jurisprudence on the subject, and be reminded that constitutional guarantees are not a constant, varying from age to age. The government may also invoke the doctrine of necessity in aid of its decision as also the fact that similar procedures under Article 370 have been used in the past.
It is neither wise nor possible to hazard a definitive assessment of the approach that the court will take in what is certainly a testing ‘lis’ with pronounced political overtones. Given the prevailing national mood, the ‘historical unacceptability of originalism’ as a mode of constitutional interpretation has a seductive appeal. Although the Supreme Court may not, in the circumstances of the case, decline jurisdiction at the threshold, given its demonstrated activism, it will be mindful of the ‘great gravity and delicacy’ (Brandeis J.) of pronouncing a critical political decision claiming to serve constitutional objectives as ultra vires. We know that “just as change in social reality is the law of life, responsiveness to change in social reality is the life of law.” (Aharon Barak). Indeed, the expansive power of judicial review itself proceeds on the basis that a living constitution has to be given meaning in new settings. The SC has, likewise, cautioned against the danger of stultifying the spirit of the Constitution by static judicial interpretation (Navtej Johar et al). A clinching case for dynamic interpretation of the national charter was made out by Edmund Burke as early as in 1769. “… a State without the means of some change…,” he wrote, “… is without the means of its preservation….” This is the crux of the government’s case. And, as to the judicial function, Judge Cardozo reminded us in his celebrated essay that “… the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by….” The outcome of legal challenge notwithstanding, it is clear that the decisive battle between contrary narratives on Kashmir will not be fought in courtrooms or in the drawing rooms of the ‘Lutyens’ in Delhi nor in the streets and lanes of paradise lost.
The battle for peace and prosperity in Kashmir will be won or lost in the minds and hearts of the people of India. The destiny of Kashmir presents its meaning in a political narrative that recognises that nations do not live by bread alone. The challenge before the government is, thus, to win an uncoerced allegiance of the Kashmiri people by recognising their dignity and identity. The reassuring statement made by the Prime Minister in this regard will hopefully be translated into action soon. This will vindicate India’s distinction as a ‘civilisational state’ defined by the soft power of its values.
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