The constitutionality and wisdom of rendering Article 370 irrelevant to Kashmir can be debated. But no matter which side of the debate you are on, the spectre of the Indian legal system abdicating its responsibility to protect the liberties of ordinary Indians should alarm all of us.
There are three tragic ironies in the current moment. First, the very act of supposedly “integrating” Kashmir more fully into India starts off by virtually putting the whole population of the Valley under a pall of suspicion. The normal rights to movement, communication and expression have been suspended for a large section of the population. Admittedly, there are security exigencies in Kashmir, and the state has an interest in preventing violence. But to put a state under a communication lockdown of protracted and uncertain duration, to detain almost the entire political leadership of the state, to deny ordinary citizens their liberties, reeks of a conduct that befits a colonial power, not a liberal democracy.
The second alarming thing is the casualness with which all of this is justified. This casualness only underscores the lack of empathetic imagination and the weakening commitment to freedom that characterised the rest of India; it is as if we are saying, we will win over Kashmiris by imposing even more hardship on them. But the third irony is that their first experience of Indian law as a Union Territory is untrammelled executive power writ large, where anyone can be detained or prevented from travelling on any pretext whatsoever. Indian courts have had a spotty record in defending our civil liberties. But even by that spotty standard, the abdication of the legal profession in leading the charge for liberty is striking.
There are a few petitions pending in the Supreme Court. But the court has already abdicated its responsibility by kicking the can down the road. In the case of detention, where mass political arrests have taken place, time is of the essence. What is the point of habeas corpus protection if it applies only after the state has done its deeds? Even if, for argument’s sake, some measures of detention or restrictions on public assembly are necessary, the justification, duration, form and location can at least be scrutinised. Even if the Supreme Court wanted to take more time on Article 370 issues, taking up issues of “liberty” cases should have been its top priority.
But, more generally, there is an extraordinary listlessness in the legal profession in the defence of liberty. One would have thought this was a time for the legal profession to blitzkrieg the court with habeas corpus petitions. One would have thought that if Shah Faesal was denied the right to travel, prominent lawyers would invoke memories of the famous Maneka Gandhi case, and draw their swords on behalf of the right to travel. In fact, the tribe of senior counsel who are never shy to claim chivalrous custodianship of the Indian Constitution, are strikingly missing in leading the charge in the public sphere for liberty and rule of law in Kashmir. There are honourable exceptions, but such high degrees of deference in the legal culture of judges and lawyers to executive power does not portend well for Indian democracy.
Perhaps this is not surprising. So much of the public rhetoric is reminiscent of the Emergency. You had, then, Justice Y V Chandrachud arguing, in ADM Jabalpur, in a manner reminiscent of current discourse, that liberties could be ignored since political prisoners would not be mistreated. He had a “diamond bright” and “diamond hard” hope that such things would never come to pass. You had Justice A N Ray warning counsel not to “paint pictures of diabolic distortion and mendacious malignment of the government of the country.”
H M Seervai’s gloss on ADM Jabalpur is still worth quoting: “The majority judgment gave charter to every government servant to do his will against the helpless people, stripped by the Supreme Court of the protection of law. A rigid censorship concealed the extent of the injury inflicted by the judgment from the public gaze. But the evidence which has come to light since then shows how little justification there was for any judge to speak of ‘motherly care’ shown to detenues, or to express ‘diamond bright and diamond hard hopes’, that the kind of misdeeds which counsel for detenues feared had not tarnished the record of free India and would not do so.”
There is danger that what Seervai described as the sensibility of the majority judgment is becoming the default common sense of our legal and wider political culture. Even if we admit that there are security and public order exigencies in Kashmir, there is no reason to exempt mass detentions from quick legal scrutiny. As the legal historian, Rohit De, reminded us (see his paper, Constitutional Antecedents, in the Oxford Handbook of the Indian Constitution), even in the midst of World War II, when India was ruled by a colonial power, a newly created and young Federal Court of India (the precursor to the Supreme Court) had, under the leadership of Sir Maurice Gwyer, the courage to invalidate Rule 26 of the then Defence of India Rules and direct the Bombay High Court to issue a writ of habeas corpus. There were some technical grounds for the decision. But, as De recounts, “the court was shocked by the non-application of mind that went into these detention orders. This was evidenced by the practice of verbatim reproduction in the order of detention of all the objects in relation to which such an order may be made instead of specifying a particular ground of suspicion.”
Even for the British, war was not a catch-all excuse to exempt habeas corpus cases from quick judicial scrutiny. All states are organised hypocrisy: They will use arguments from necessity to suspend the rule of law or civil liberties. But it does not portend well for a state when literally any argument from “necessity” or “sensitivity” is given a free pass by the judicial system. In fact, the abrogation of Article 370 makes it even more important to signal that the Constitution, whose writ and ambit we want to extend to Kashmir, is a constitution of liberty, not simply a tool of executive tyranny. It is a Constitution designed to elicit people’s natural sympathies by guaranteeing their liberty and dignity.
Our legal abdication on liberties is a sign that we are not ready to treat Kashmiris as ordinary Indians and that we are willing to debase ourselves in the face of an executive that is acting more colonially than a colonial power.
The writer is contributing editor, The Indian Express
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