Kashmir in the Supreme Court: No Sin to Kill This Mockingbird

When the state becomes touchy, it isn’t good form to ask questions of the executive, not even before the constitutional court.

The state has become sensitive. Thus, it was in that vein that the solicitor general for India opened his arguments, while responding to the petitioners’ claims that the lockdown in Kashmir was disproportionately severe and unconstitutional.

The learned solicitor first asked why and then he sullenly added ‘who?’. Why would anyone disrupt the government’s ‘historic move’ by unfairly bringing up the question of constitutional rights, or due process of law? Moreover, who would do such a thing?

The solicitor general then indicated that he had a judgment that showed that there were ‘forces across the border’ and that there were persons within who were either too naïve, or too misguided, and who would question their own government.

When the state becomes touchy, it isn’t good form to ask questions of the executive, not even before the constitutional court. The solicitor general has said on occasion that the executive reviews its own actions, which are perhaps best kept outside the constitutional court’s domain for they involve sensitive matters of national security.

Like God’s plans, the mind of the executive is not immediately obvious to the disbelieving citizens, but it unfolds and makes itself apparent in due course, and then everyone lives happily ever after. In the meanwhile, criticisms of the government, or hasty actions by journalists and writers, by petitioners and their lawyers – even the constitutional court – only disrupt the overarching projects of the government. The plea from the other side that all such great plans must first be transparent, and also be participative, inclusive and ethical are met with a shrug and a dismissive smirk. If the learned solicitor weren’t such an amicable man, chewing his gutkha and smiling his smile, this idea would appear so sinister. He is always pushing an indeterminate national interest, without caring that our civilisational moorings are getting battered in the process.

‘Hard states’ on a mission don’t like being talked about, certainly not by their critics. But the powers that be have very generously created a niche for the critics to criticise all they like, without causing disruption. Like ‘hemming in’ of protestors. In this post-truth world, The Wire doesn’t count. That is why I am writing for The Wire: this article is void ab initio. It means nothing to the majoritarian conscience.

In court no. 2 of the Supreme Court hangs a life-size portrait of Justice Hans Raj Khanna, that judge who wrote the dissenting judgment in the ‘habeas corpus case’ during the Emergency. The issue before the court then was whether fundamental rights of citizens that guaranteed the freedoms of life and liberty were liable to suspension after the declaration of Emergency or not. While the majority judgment ruled in affirmation, Justice Khanna had dissented, then. Much later, the Supreme Court of India set aside the majority decision and confirmed Justice Khanna’s dissenting opinion on the inviolable nature of the right to life and liberty.

Justice Hans Raj Khanna. Photo: GoI

It was under the same portrait that the attorney general for India and the solicitor general for India addressed the court, seemingly on the question of constitutionality, of the long period of lockdown in Kashmir. They didn’t argue as officers of the court, unfortunately. They spoke on behalf of the executive, applauding it, shielding it from scrutiny.

They are fine men, when they are not defending the indefensible. One portly and beaming, the other thin and bewildered, and rekindling my childhood memories of Laurel and Hardy.

The solicitor general advanced the argument that even if there had been some restrictions on certain liberties, it was only in exchange for many other social rights that had been gained by the introduction of Central legislations to Kashmir. He mentioned several specious ‘newly introduced’ social legislations and declared that nobody minds the restrictions on movement, except a minuscule minority. It makes perfect sense, for which people would not wish to trade their liberty, or the liberty of their children, in exchange for the Prohibition of Child Marriages Act.

The solicitor general also argued that in any case, the restrictions, such as they were, have now been lifted. What is the fuss about? I was speaking to a Kashmiri friend myself. She spoke of the pressure that the Kashmiri people feel everyday: the choice between never returning to the mundaneness of everyday life, or doing it at the cost of forgetting what has happened to Kashmir. Once public transport is back, will we stop talking about the lack of normalcy in our lives? Anyhow, what do I know? The solicitor general has the pulse of the people.

While the solicitor general captured the real aspirations of the Kashmiri people for the court, the attorney general took a firm line. He is a jurist, but he spoke like an administrator. First, he congratulated the government for its ‘historic’ action to dilute Article 370. Then, he quoted figures of the number of civilians and army personnel killed over the years in Kashmir. It was for this reason, that Article 370 had to be diluted: unilaterally, secretly.

He then said, in response to arguments on the constitutionality of the lockdown and of allegations of violations of Articles 19 and 21, that it had to be done. Apparently, each time there is a political event in Kashmir, people mobilise against the state. The famed jurist did not examine the complicated constitutionality of such protests, or the possible reasons for disenchantment with the state; at least those could have been points of engagement. He adopted the lazy argument that there was proximity to violence at each protest because the security forces were targeted and forced to retaliate. He spoke of national security and of how these protests were motivated and funded by Pakistan.

Kashmiris walk past broken window glass after clashes between protesters and the security forces in Srinagar, August 17, 2019. Photo: Reuters/Danish Ismail

The only reference to law was an order refusing bail to a Kashmiri businessman, Zahoor Watali, who is accused of money laundering. Agencies allege that he acted as a conduit for financing secessionist groups in Kashmir and also funding violent protests that created disaffection amongst the people. The trial has not yet started; Watali has not yet been convicted. His bail has been refused because of the gravity of charges against him. The attorney general read out the charges levelled by the agency in minute detail, until even the court had to enquire why he was reading out the allegations as if they were facts. The attorney general then reiterated the crux of his argument: the court had endorsed the allegations by refusing him bail. The sequitur was that all protests in Kashmir were motivated and financed by terrorists and therefore mass action against civilians by the government was not open to judicial scrutiny.

The attorney general is an honourable man, but he reduced the agency of the Kashmiri people to a bail order.

Once long ago, he had appeared before the Supreme Court on behalf of the state of Uttar Pradesh, and in the face of intelligence reports that warned of plans to demolish the Babri Masjid had negotiated permission for kar sevaks to assemble at the site on December 6, 1992. In return for the easing of restrictions on kar sevaks’ movements, he had made a solemn promise, on behalf of the state, to protect the mosque and to ensure that only ‘symbolic kar seva’ was performed, and at some distance from the disputed site. Unfortunately, that did not go according to plan.

I cannot say if it’s the benefit of hindsight that has made him so suspicious of free movement.

Annie Shahid is a freelance journalist.