Rarely does the Supreme Court of India attract international scrutiny but last week witnessed one such occasion with the United Nations High Commissioner for Human Rights issuing a statement that was critical of the apex court’s adjudication on petitions relating to human rights in Kashmir. “The Supreme Court of India has been slow to deal with petitions concerning habeas corpus, freedom of movement and media restrictions,” stated the spokesperson for the UN body. The statement also added: “We have also received reports of armed groups operating in Kashmir threatening residents trying to carry out their normal business or attend school, as well as several allegations of violence against people who have not complied with the armed groups’ demands.”
While attempting to strike a balance, the statement shows that in a volatile situation like the one in Kashmir, global scrutiny is increasingly focused on India, and by extension, the Supreme Court. There is an old adage that the “wheels of justice turn slowly but grind exceedingly fine,” but in the case of Kashmir, thanks to Pakistan, China, Turkey, Malaysia and the United Nations Secretary-General, the crackdown in the Valley is now under global watch.
In fact, the centre’s decision to invite a group of Members of the European Parliament to Srinagar last week has further internationalised the Kashmir issue. How the apex court dealt with the clutch of petitions it had admitted relating to the issue and clubbed together was inevitably going to be scrutinised more vigorously than others. A petition usually takes three to seven days to be listed for hearings. If a matter requires urgent hearing, the chief justice can intervene, provided the petition has cleared the technical parameters fixed by the Court’s registry.
In this case, it was close to a month before the Supreme Court finally took up the matter. In fact, when one of the petitioners requested an urgent hearing on the plea that Pakistan was going to bring up the Kashmir issue before the United Nations, the bench refused the request, saying: “If they go to the United Nations, can the UN stay the Constitutional amendment of India?” adding that it saw no urgency in the matter.
The delay was perhaps inevitable. The fact that it is an internal issue of India with parliamentary approval may have been one reason, but the five-judge bench of the apex court must have deliberated long and hard to take a stand which involves national security and terrorism from across the border, and an issue which also required taking the centre’s view on the points raised in the petitions. When it did act, it did so with resolve.
The bench that was hearing petitions on the abrogation of Article 370 and other issues in Kashmir gave the centre four weeks’ time to reply to all pleas challenging the move. The petitions on Kashmir will again be heard on November 14. The delay has, however, proved costly if taken in the context of “justice delayed is justice denied”.
What is reassuring is the string of media interviews given by the incoming chief justice of India, SA Bobde. He, naturally, refused to comment on the UN statement or on Kashmir, but asserted that the focus of his tenure will be on upholding the rule of law. In a lecture in 2018, he had stated: “The rule of law enables the weak to prevail over the strong. The final arbiter is the Supreme Court of India.” He also made it clear that freedom of speech for an individual has to be weighed against its impact on the rest of society and added a significant rider: that relations between judges is much better than before and the Supreme Court now functions as one.
He will, however, have to accept the new reality: that India’s rise as an economic and diplomatic power means the country and its democratic pillars are increasingly in global focus. Indeed, it was not so long ago that the United Nations lauded the Supreme Court for its landmark ruling striking down a key component of Section 377 of the Indian Penal Code relating to the LGBT community. Justice Bobde has till April 23, 2021, the day he retires, to ensure that the Supreme Court maintains its independence and credibility and that the rule of law, so badly mangled in recent times, is given the priority it deserves—so that the weak can prevail over the strong.