There is an old saying that, in a court case, it is not the accuser or the accused who is on trial. The person who is wrong knows what they have done, as does the person who has been wronged – or wrongly accused. The only person who has doubts is the judge. The judgment is less a reflection on the truth of the accusations, but more a reflection on the sagacity and logic of the judge.
In their judgment on the Article 370 case, the honourable justices of the Supreme Court of India have shown they have nothing of sagacity or logic; but of cowardice, they have aplenty.
There are many parts to the judgment, and it is worth reading in full because it blends many questions of law. Nonetheless, there is one issue that stands out as the heart and substance of the case, and it is the key differentiator between a democracy and a dictatorship.
In bending the framework of the constitution, the regime reinterpreted Article 367 to say that the J&K legislative assembly should be regarded as the J&K Constituent Assembly – which was dissolved in 1957 – and furthermore, since the legislative assembly was dissolved, then the governor was the representative of the legislative assembly as the Constituent Assembly.
Please regard this carefully. The president, an appointee of the governing party, and the governor, another appointee of the governing party, are supposed to represent the governed. In other words, the government chooses who represents the people, not “We, the people”.
This does not just go against the “basic structure” of the constitution that the Supreme Court has defended so strenuously, it goes against democracy itself. It is only in a dictatorship that the regime chooses who represents the people.
Also Read: Four Important Takeaways From the Supreme Court Ruling on Jammu and Kashmir
This was captured best by Bertolt Brecht when he wrote his satirical poem, ‘The Solution‘, in 1953:
After the uprising of the 17th of June
The Secretary of the Writers’ Union
Had leaflets distributed on the Stalinallee
Which stated that the people
Had lost the confidence of the government
And could only win it back
By redoubled work. Would it not, in that case,
Be simpler for the government
To dissolve the people
And elect another?
Since the Indian government is open to ideas and blind to satire, it has done just that: arguing that it had dissolved the people and elected another, since – after all – if its appointees were the representatives of the people, it could change them at will.
The Supreme Court, in its infinite wisdom which has been on display in a slew of cases whether involving the Babri Masjid, non-hearing of the electoral bonds scheme, habeas corpus petitions that were allowed to languish for a year and its sublime indifference to the evisceration of its Puttaswamy judgment, has now put its imprimatur on this.
How this makes sense, well, that is not the Supreme Court’s business. I mean, if it could maintain in the Babri Masjid demolition case that the demolition was wrong but those who committed the crime should retain custody of what they had grasped through the crime, well then, anything is possible.
And regarding Kashmir, where all our pieties about democracy, liberalism and the rule of law have gone to die, burying rationality in an unmarked grave along with so many others will be nothing new.
Omair Ahmad is an author and journalist.
The Supreme Court's Article 370 Judgment is Injustice Writ Large
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11.12.2023
There is an old saying that, in a court case, it is not the accuser or the accused who is on trial. The person who is wrong knows what they have done, as does the person who has been wronged – or wrongly accused. The only person who has doubts is the judge. The judgment is less a reflection on the truth of the accusations, but more a reflection on the sagacity and logic of the judge.
In their judgment on the Article 370 case, the honourable justices of the Supreme Court of India have shown they have nothing of sagacity or logic; but of cowardice, they have aplenty.
There are many parts to the judgment, and it is worth reading in full because it blends many questions of law. Nonetheless, there is one issue that stands out as the heart and substance of the case, and it is the key differentiator between a democracy and a dictatorship.
In bending the framework of the........
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