How the Supreme Court let us down

When Kashmiris needed it the most it responded with reluctance and apparent lack of concern

This is a tale of two Supreme Courts. The first has won international applause but severely displeased its own government. The other dismayed many of its fellow citizens but provided great relief to the country’s rulers. At the heart of both stories is the contrast in their response to critical constitutional issues and violations of human rights.

 The issue before the British Supreme Court was whether Boris Johnson’s decision to prorogue Parliament was lawful. In turn, that raised the question had he misled the Queen. Together these two raised further fundamental concerns: Can the courts inquire into the Prime Minister’s advice to the Sovereign and are there legal limits to the exercise of his prerogative? In a country without a written Constitution and, instead, reliant on convention and precedents, these are not easy issues to handle.

What made them yet more complex is the court’s decision would also have serious implications for three other constitutional relationships. It would touch upon the powers of Parliament versus those of the judiciary. It would determine where the jurisdiction of the legislature ends and that of the executive starts. Finally, it could encroach on the constitutional role of the Queen. It’s hard to think of a more important judicial pronouncement by the British legal system in recent memory.

Yet the British Court decided this case in one week. The hearings lasted for three days. They concluded on a Friday evening and the following Tuesday morning the Court delivered a unanimous verdict. All 11 judges found Boris Johnson’s prorogation “unlawful, void and of no effect”.

Now, let’s come to the Indian Supreme Court. It’s required to respond to two separate set of petitions on the government’s decision to change the constitutional status of Kashmir. The first challenges the constitutionality of what’s been done. It, therefore, raises fundamental concerns about the federal character of our country and our democracy.

The second set concerns the rights of Kashmiris who are under lockdown, denied access to mobile phones and the internet with, perhaps, as many as 4,000 detained. Several are habeas corpus petitions, the most definitive way of raising the right to life.

Both matters have been admitted by the Court. On August 28, the Chief Justice said he would create a five-judge constitution bench to handle the case pertaining to Kashmir’s status. But he did not act till September 28. For a whole month pressing concerns of fundamental importance were left hanging in the air. Finally, the constitution bench met on October 1 and, at the government’s request, deferred further hearings to November 14, two and a half months since the case was admitted.

Meanwhile, the human rights petitions were repeatedly postponed. Eventually on September 30, a three-judge bench was appointed to handle them. It too deferred hearings, to October 16. 

So even though the issues before them are of utmost importance these benches saw nothing wrong in lengthy postponements. Rather than act they’ve kicked the can down the road.

Now, can you see the difference between the two Supreme Courts? The one in Britain acted expeditiously and an issue of critical importance was decided in seven days. In India the Chief Justice delayed action, sometimes for four weeks. Clearly, he was in no rush. When those benches met, they too saw no need for haste. This is despite the fact the rights of Indian citizens are at stake and on October 31 the status of Kashmir will change.

Finally, what’s the reason these benches gave for postponement? In the Constitution case it said “it can’t hear such a matter without getting a response from the government”. But how long does the government need? By giving it 75 days altogether the court has discredited itself. 

The explanation from the second bench is “personal liberty will have to be balanced with national security”. This is a lazy, superficial and shallow argument. It doesn’t reflect judicial thinking. Instead, it seems like cover for what the government has done.

Frankly, our Supreme Court has let us down. When Kashmiris needed it most it responded with reluctance and apparent lack of concern. On the other hand, the British Supreme Court earned a place in history by setting an example that’s unlikely to be forgotten.