How tenuous the Narendra Modi government’s legal/constitutional case with respect to the reading down of Article 370 may be is suggested by the fact that, at the last minute before the beginning of the hearings of the constitution bench of the top court, it chose to submit a fresh affidavit, detailing its political argument.
The said affidavit sings praises of how much betterment has been brought to the erstwhile state after the reading down of Article 370 on August 5, 2019.
The attempt thus to shift goal post from the legal/constitutional aspect of the matter to an administrative/political one seems a dead giveaway of how weak it knows itself to be on the constitutional aspect.
It is most heartening that the honourable judges on the constitution bench have instantly pronounced on the irrelevance of the new affidavit, affirming that issues related to how conditions in the state were before and are claimed to be after the abrogation are redundant matters to the challenges made to the government’s fraught decision.
The court has made it clear that its concern is in toto with determining whether what the Modi government did on August 5,2019 was constitutionally tenable or not.
The fact that the Supreme Court has determined to take up the case after an interregnum of some four years may also be suggestive of the merit in the challenges made to the government’s contested/controversial decision.
As also the fact that over these years the Modi government made no move to persuade the top court to take up the matter for quick disposal – something this government would surely have chosen to do had it been certain of the strength of its case.
Let it be said that in recounting what it considers to be great improvements made as a litany of so-called positive consequences of its decision, the Union government understandably did not mention the shaming fact that the gravest consequence has been the unconscionably long suspension of representative government in Jammu and Kashmir.
We recall that Hitler also had great autobahns constructed after the death of democracy under the Third Reich regime.
Those who consider the reading down of the impugned article – literally as a fiat pushed in a few minutes in parliament – as having been unconstitutional remind us that such a measure could have been taken only with the consent of the Jammu and Kashmir constituent assembly, and, in its absence, by the elected state assembly.
None of this happened.
On the contrary, the Modi government chose to dissolve the Jammu and Kashmir assembly to make its fiat possible, since, had the matter gone to the elected representatives of the state’s people, no concurrence to the guillotine of the “special status” would have been forthcoming.
Many will understandably be on tenterhooks to see how the case proceeds in the Supreme Court.
The reason for this uncertainty flows from the memory of the erstwhile case on the Babri Masjid-Ram temple title dispute.
In that matter, we recall, the honourable court, after laying down that the demolished structure had indeed been a mosque, that induction of idols into its sanctum sanctorum was an act of “desecration,” that demolishing it was a “criminal” act, determined to award the site to the litigants who believed a temple to Lord Ram had to be built on that very spot.
That court of course cited due powers vested in it to make such a determination.
That the forthcoming decision on challenges to the reading down of Article 370 will not but be of the greatest import in shaping the future both of the present Union Territory and of national politics overall in the days to come goes without saying.
Badri Raina taught at Delhi University.