Will the Indian top court do justice to Kashmiris?…Dr Moonis Ahmar
After almost four years of the revocation of Article 370 of the Indian constitution which had given special status to the occupied Jammu & Kashmir, a five-member bench of the Indian Supreme Court headed by Chief Justice Dhananjaya Yeshwant Chandrachud will start hearing petitions against New Delhis August 5, 2019 move from July 11 (today).
Following the revocation of the Article 370, as many as 20 petitions had been filed to challenge that act in the Indian Supreme Court which is now taking up the issue after a lapse of about four years.
Petitioners challenging the act were repeatedly requesting the Indian Supreme Court for an early hearing of the case.
Several questions have been raised about the possibility of the Supreme Court granting relief to the petitioners by reversing the revocation of the special status of the occupied Muslim-majority state.
Can justice be done by the Supreme Court given that the BJP has been able to inundate the state organs, namely bureaucracy, military and judiciary with its own people? Why did the Indian Supreme Court take around four years to take up the petitions challenging the revocation of Article 370? What happens if Supreme Court declares the August 5, 2019 act null and void? Those casting doubts about a judicial outcome favourble to Kashmiris argue that the Supreme Court may consider the endorsement of the August 5, 2019 act by the Indian parliament.
Once, the revocation of Article 370 was ratified by both houses of the Indian parliament and approved by the President, it became a law and cannot be repealed.
But those skeptical about a favoubale judgment on the petitions challenging the Jammu & Kashmir Reorganization Act of August 5, 2019 on grounds that it was approved by the Indian parliament and authenticated by the President must bear in mind the fact that Supreme Court can interpret and rescind the law if it is found to be in conflict with the Indian constitution.
A legal loophole in J&K Reorganization Act is that it was passed without recommendation of the Jammu & Kashmir Assembly.
Since 2016, the occupied territory has been under the Governors rule because the state government of Chief Minister Mehbooba Mufti had collapsed.
On August 5, 2019 when New Delhi revoked the special status of J&K, there was no elected assembly in Srinagar.
Mahbooba Mufti argued that the SC ruling on Article 370 maintained that the provision can be abrogated only on the recommendation of the J&K constituent assembly.
Since there was no constituent assembly in Srinagar on August 5, 2019, the Modi regimes revocation of Article 370 is illegal.
Likewise, National Conference leader Omar Abdullah, while calling for expediting the case in Supreme Court, stated: It is better late than never.
We have been eagerly waiting for this day.
Hearings would start on July 11 and we hope that they would be expedited as soon as this case is addressed in the Supreme Court and a verdict will come out.
In view of the technicalities and the pressures from the Modi regime on the top court, one can expect a long legal battle to continue.
From any standpoint, the hearing of the petitions will also be a test case for the Indian Supreme Court to prove that it will not be coerced by the Modi regime and will be fair while giving a final judgment.
Those against the petitions argue that Article 370 is dead and cannot be revived because the Indian parliament had passed the Act with a two-thirds majority.
Delay by the Indian Supreme Court in constituting a bench to hear the petitions strengthened the position of the Modi regime as they felt no threat from the Indian judiciary revoking the Act.
When arguments against the petitions will be given from the government side, it will definitely be stated that things are now in order in J&K; peace has returned; and development programmes, particularly in the Muslim-dominated Valley, negate the perception that the local population is hostile because of the revocation of Article 370.
The recent G-20 event on tourism promotion in J&K held in Srinagar will also be cited by the Modi regime in the court in its favour.
At a time when New Delhi feels comfortable with the situation in occupied Jammu and Kashmir, it will be interesting to follow the hearing of the petitions in the Indian Supreme Court.
One can analyse how the Indian top court will deal with the petitions challenging the revocation of Article 370 from two angles.
First, the hearing in the Indian Supreme Court is the last hope for those in India who want to see a great injustice to the people of Jammu & Kashmir undone.
The Indian state confidently absorbed J&K in the Indian Union without redeeming the consequences of the move.
Now, when the Supreme Court will start hearing the petitions, the truth about the illegality of J&K Reorganization Act will be exposed.
At a time when democracy and secularism are under attack in India, the Supreme Court hearing on the unilateral abrogation of Article 370 will be a significant event.
Indian civil society and human rights groups see to it as an opportunity for the Supreme Court to raise its stature as the final arbiter.
Its pertinent to mention here that a large segment of the civil society in India failed to effectively challenge the August 5 move and the repression in the occupied territory which strengthened the position of the Modi regime.
Also, the opposition political parties were the ones that had also supported the J&K Reorganization Act in the Indian Parliament, particularly in the upper house where BJP lacked a two-thirds majority.
Second, a biased judgment by the Supreme Court under the pressure of the Modi regime would cause a great damage to Indian democracy.
If the Indian judiciary is unable to establish its credibility, the outcome will be a deepening of the political polarisation in the country.
Lets keep our fingers crossed as far as the hearing and a final judgment of the Indian Supreme Court on the petitions challenging the J&K Reorganization Act are concerned.
Courtesy The Express Tribune