But the Supreme Court of India has still not finally decided whether the nullification was constitutional or not. This delay does not bode well for anyone – the people of J&K, GoI and SC itself (at the time of writing the court has only decided some preliminary issues).
The nullification of Article 370 has been a long-standing BJP campaign promise. Therefore, the GoI decision can be seen as principled politics. But it is also a complex constitutional question, perhaps the most complex since Kesavananda Bharati’s case.
Answering that question is SC’s job. Uphold the decision and a ‘Naya Jammu and Kashmir’, as has been promised, can be built on a firm legal foundation. Strike it down and Parliament can think of alternative constitutional methods to integrate J&K with India.
Especially in a matter as constitutionally momentous, it is imperative that the court gives a final and authoritative judgment as quickly as it can.
The usual defence provided to such judicial delays – there aren’t enough judges to spare – combined with difficulties of virtual hearings simply doesn’t cut it in this case. When several matters of constitutional importance like OBC reservations and constitutionality of tribunals can be heard and decided, there is perhaps some prioritisation criterion at work.
Further, constitutional matters do not require reams of evidence and are naturally more suited to virtual hearings. The US Supreme Court has been conducting its hearings during the pandemic, not even through video-conferencing, but on telephone, without any significant glitch. The pandemic cannot be the reason Kashmir’s constitutional fate is kept hanging.
So how do judges decide the order in which cases are to be taken up? The short answer is nobody really knows. All that is known is that the chief justice as the ‘master of the roster’ decides. Since a winter morning in January 2018, when four senior SC judges held an unprecedented press conference, the concept of CJI as the ‘master of the roster’ has come under intense scrutiny.
But despite the scrutiny, the process of listing of cases still does not operate on the basis of publicly declared criteria. This is not to say that listing is done clandestinely. But sometimes, actions even if taken fairly, become too prickly to remain opaque.
Take the drama currently playing out in the Calcutta high court. A single judge, Justice Sabyasachi Bhattacharyya, passed a judicial order directing HC’s administrative authorities to explain why the court was beset by disruptions during virtual hearings.
However, on the next working day, the matter was taken away from Justice Bhattacharyya’s list and placed before another bench. In a sharply worded order, the judge doubted whether HC’s chief justice, as master of the roster, could do this. “The ‘master of roster’ concept cannot be equated with ‘master of all I survey’,” the judge said.
If this is the level of bafflement within the judicial fraternity on how matters are listed, outside the fraternity, all manner of speculation is natural.
Some argue the roster benefits GoI. On further research, this conclusion is selective. Four matters are pending before nine-judge benches for inordinately long periods, including a case relating to rent fixation in Bombay from 1992. Three matters are pending before seven-judge benches including several critical economic questions. These delays can hardly be said to benefit the current government.
But continued non-listing of matters without clear reasons means that in every matter, one side, which is sometimes the government, gets an advantage.
Article 370 was a solemn promise made by the founding fathers of the Constitution of India to J&K. The way that promise played out in independent India left a lot to be desired.
Hearing the matter quickly will not wipe out 75 years of fractious history. But it would be the right and decent thing to do. Such things should also matter in our constitutional democracy.
The Supreme Court must show the way.
The writer is Research Director; Vidhi Centre for Legal Policy.
(Disclaimer: Views expressed are personal)