Source: The Wire

I  have never been a Supreme Court judge, nor am I likely to be, alas. But as a citizen that holds the institution in high esteem — particularly now when most recourses of redress seem compromised and closed to all independent-minded citizens — I ask myself: Had I been a judge of the highest court, and one deputed to a constitution bench tasked to deliberate upon the reading down of Article 370, what might have been the thoughts going through my mind listening to current political discourse on the issue.

Of course, judges are expected to remain indifferent to averments made on cases by parties outside the proceedings of the court; and, commendably, remain so. But being also citizens themselves, it would be an indulgence for anyone to think that remaining indifferent means being deaf and blind to public statements, especially when these come from agencies and individuals that bear crucially on the life of the republic.

Assuming that judges read newspapers and also watch television, they would inevitably have heard Prime Minister Modi say during the recent Maharashtra election campaign how all those opposed to the scrapping of Article 370 should go “drown themselves.” Most recently, senior BJP leader Ram Madhav declared that Article 370 is “like a dead body, it’s gone and won’t return”.

The fact that a constitution bench is due to hear the case seems of little account to the prime minster, who has already made a final pronouncement on the matter – that opponents to the measure are supporters of terrorists who deserve death by  drowning.

Might a judge then not think that Modi, having already pronounced in the matter  in the most telling of terms, that he too would run the risk of being dubbed a member of the devil’s party were he to rule that the executive violated the constitution in rescinding  Article 370 in the way it has done so?  And how might a media friendly to the executive then pronounce on the role of the judiciary in toto with respect to its seeming disregard of  “national interest”?

Worse still, how might a judge feel about the silent assumption that the constitution bench cannot but come to the conclusion the prime minister has already loudly proclaimed? Much in the way in which it is generally supposed that in the matter of the  disputed  Babri mosque case, the judiciary has but only one option, namely to opine in favour of the dominant social conviction.

Or, how might the entire institution of the Supreme Court feel about the other view that, after all, the constitution bench has been set up only as a politic gesture to civil society anxieties with regard to  judicial administration generally, without any thought actually to seriously examine the merits of the case? Would a judge’s obiter that “we could turn back the clock”  be then received only as a brave assertion on behalf of the institution without any considered intent to do so?

Reading the statement of the executive last month with respect to the imbroglio in Nagaland that “respecting the  Naga people’s wishes, the Government of India is determined to conclude the peace process without any delay… the Government of India expects all negotiating parties to heed the will of the people,” one wonders why this noble principle of heeding and respecting the will of the people should not have weighed with the executive while dealing with Jammu & Kashmir. And why the executive should think the bench would not – or ought not to – make that connection.

Speaking of the will of the people in Jammu and Kashmir, if the results of the just concluded elections to Block Development Councils are anything to go by,  the state’s  elected panches and sarpanches – having resoundingly trounced the ruling Bharatiya Janata Party not just in the  Valley but, most significantly, in the Jammu region too –   may suggest  how the reading down of  Article 370 has been received  in the state.   As many as 217 Independent candidates won, against  81 of the BJP.  Nor is this a specious argument; had the BJP scored the triumph it  expected to, there is no question that the party would  have left no  drum unbeaten to tom tom  that result as a vindication of the scrapping of Jammu & Kashmir’s erstwhile  special status, and a victory of  “integrative  nationalism” over “divisive separatism.”

But who is listening?

These conundrums then leave me with just one  salutary thought: thank heavens I am not a  judge and certainly not a member of the constitution bench deputed to hear the case pertaining to the merits of the executive action with regard to Article 370.

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