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The Supreme Court (SC) has done what it had to do. Not that anyone expected it to act differently. The majority has had its way, and the minority has had its say. That is what democracy is all about. The entire exercise, from the Court admitting the petitions challenging the constitutional validity of the abrogation of Article 370 to the judgment, was only about the minority having its say. The minority here being the opinion on Kashmir, which includes the majority of Kashmir, and a fast-dwindling minuscule minority in the rest of the country.
Few of the 140 crore and more Indians would have believed that the SC will strike down the abrogation of Article 370 as passed by Parliament. A democratically-elected government with not just a mandate but also the moral authority – the promise of abrogating Article 370 was first made 70 years ago and is a part of every single electoral manifesto of the BJP — decided to abrogate the special status accorded to Kashmir. No matter what the constitutional process and procedural infirmities, it was bound to be upheld, one way or another. Not to speak of the high political stakes, domestic and international, in Kashmir.
Equally, ever since the abrogation on August 5, 2019, it has become more than evident that Article 370 was a political commitment not in line with the societal consciousness of the nation. The civil society all over the country and even the Indian diaspora across the globe, not only instinctively celebrated the abrogation but during the last four years avowedly endorsed it through personal, professional and institutional networks of communication. It was virtually a digital referendum in favour of the Union government.
Few political parties showed solidarity with the political parties of Kashmir who have been demanding restoration of special status. There have been no loud calls for as much as a one-day nationwide bandh or promises that from parties that they would revisit, let alone restore, the constitutional validity of the abrogation, if they ever come to power.
As such, the Supreme Court could not have but adopted the traditional formalistic approach. The Court restricted itself to interpreting the Act of Parliament placed before it bearing on its face the official consents of the Lok Sabha, Raj Sabha and the President of India. Thus, the Supreme Court, in its judgment did not inquire into the mode in which it was introduced in Parliament, nor what was done previous to its introduction, nor what passed in Parliament during its stages through both Houses. Implicitly, the philosophical underpinnings of the judgment are that even if an Act has been obtained improperly, it is for the legislature to correct it by repealing it. To be fair, the reluctance of the courts to “go behind” how a statute was enacted is a well established tradition.
However, in doing so, the only risk that the Supreme Court has run is of being another institution of majoritarianism. Since by construct and design all the representative institutions are majoritarian, the Court, at least in principle, is expected to err on the side of the minority so as to maintain the semblance of a balance. The expectation of even die-hard idealists was not from the judgment per se but the obiter dicta: The Supreme Court was expected to take a view on restoration of statehood, or perhaps a small rap on the knuckles of the Union government for constitutional infirmities. That, too, just to put it on record for posterity.
By not overreaching in the matter, the judgment has not been informed even by the fact that underlying the constitutional provision of Article 370 was a social contract, with people as well as with states as units of a constitutional republic. Instead, the case was rather meekly argued, intently heard, and predictably disposed of.
Could the judgment in this high-profile constitutional matter with massive public interest and political implications, have been used to serve a larger purpose, beyond the obvious one that it has served? In the process of hiding behind contestable facts and debatable premises, the Court has missed a great opening and a timely opportunity for helping the nation state reset and re-engage with Kashmir. Not to give false hope, but to communicate the larger realities of India — the nation state and the civil society. The Supreme Court could have followed the approach of laying the groundwork for a broader and realistic recognition for the future where notions of sovereignty, identity, and governance are being redefined in a new global order. The renewed terms of engagement can’t just be restoration of statehood but have to align to the new emerging realities.
Why this was important to recognise, which the Supreme Court failed to, is that for the overwhelming majority of Kashmiris, it was not a mere constitutional provision but an article of faith that was on trial. Over the last 70 years, “Dafaa 370” had acquired many meanings, and imbibed powers and properties. Short of having spiritual or mystical connotations, Article 370 has almost existential bearing on the quotidian lives of Kashmiris. Indeed, it had become so much larger than life that Sheikh Abdullah had to once emphasise in the legislative assembly that “370 is not a Qur’anic verse that can’t be modified”.
The judgment, in its layers and nuances, could have been such that would provide closure that the majority of Kashmiris; honouring the transition away from what’s finished to something new. For only that will force the political class, locally as well as nationally, to articulate how and on what terms social and political reengagement can be taken forward. Time is a great healer, but the wound hasn’t healed, it may have scabbed just yet. So too the pain of humiliation, which has dulled but not disappeared.
The writer is the former finance minister of J&K
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