The three citizens from the erstwhile State of J&K
residing within the present territorial limits of the U.T. of Ladakh have filed
an application on 10th of Aug. 2021, for impleadment in the already
pending cases challenging the 2019 Presidential order and Amendments leading to
the abrogation of Article 370 of the Indian Constitution, right after 2
years of the said actions. The application is nothing but again a document
expressing the right vested with the citizens to show disagreement with the
actions of the Government, challenging the decision of bifurcation of the erstwhile State of J&K on the ground that the said Presidential order and
Amendments have gravely affected the people of the U.T. of Ladakh, as
specifically quoted; “Chilling Effects of
the impugned Act”.
Without going into the technicalities of what could
have been done or in what manner it has been done or instead of going into the
relevancy of the present petition, the whole scenario of dealing with the case,
which lead to the arrest of around 4,000 persons in the first two weeks of the said
action in Aug. 2019 and voluntarily creating a pandemic like situation in the J&K
for months even before the whole world witnessed a lockdown, reflects the
sensitivity of the Supreme Court with regard to the protection of the
Fundamental Rights (F.R.) under the Constitution, whose implementation was a so-called reason behind the whole melodrama. Even the protection of privacy and
life of people, which is considered to be one of the most precious rights under
Constitution as quoted in nine Judges Bench case Justice K.S. Puttaswmay was not given priority when it came to the
right of the people of J&K as compared to the urgency and interest shown by
the Supreme Court in the long ongoing trial of the Ayodhya dispute. Moreover, it
did not even directed an injunction on the Government actions in relation to the
matter Subjudice.
Is it just the insensitivity or carelessness? Or some
legal tactics to deal with the highly sensitive and internationally recognised political issue which has proved to be powerful enough to mould and influence
the politics of the two countries from the last 70 years?
There is a legal doctrine that was for the first time
invoked in Golaknath v. State of Punjab
case by then CJ. Subba Rao called as ‘Doctrine
of Prospective Overruling’. The doctrine was a reception from the American legal system, according to which, though a decision is made with regard to a
present case but its execution is not allowed in the present case and decision
is with regard to the future course of action or in other words it can be
stated that the decision in a particular case is not given effect
retrospectively but prospectively. Even if a decision is made in one
party’s favour but it will not give any benefit with regard to the past actions
although it will restrict the other party from doing any such action in the
future. Thus, in a way, though you have won the case but nothing will change,
the decision is only a legal development guiding the future course of action.
The doctrine was used by Justice Subba
Rao to preserve the 17th Constitutional Amendment Act, 1964
which was still recognised in the same court as unconstitutional, but was
preserved by the shield of the doctrine for a reason; “We have arrived at two conclusions, namely, (1) Parliament has no
power to amend Part III of the Constitution so as to take away or abridge the
fundamental rights; and (2) this is a fit case to invoke and apply the doctrine
or prospective overruling. What then is the effect of our conclusion on the
instant case? Having regard to the history of the amendments their impact on
the social and economic affairs of our country and the chaotic situation that
maybe brought about by the sudden withdrawal at this stage of the amendments
from the Constitution, we think that considerable judicial restraint is called
for.” Thus the decision does not affect the applicability of the 17th
amendment Act or any other amendment made to the Constitution taking away the
F.R. but in future, the Parliament is restrained from such actions of abridging
the F.R. Although the Golaknath case was
overruled in the 13 Judges Bench case of Keshvanandabharathi
v. State of Kerala but the doctrine has been used on many occasions in the
cases related to Constitutional matters like the Indra Sawhney case (Mandal Commission) and Waman Rao case. The doctrine has also been used and discussed in
many cases like P. Rajendran v. State of
Madras, K. Madhava Reddy & Ors v. Government of A.P. & Ors, M/S Somaiya
Organics (India) Ltd. v. State of UP, Orissa Cement Ltd. v. State of Orissa, State
of Madhya Pradesh v. Maharaj Singh and etc.
The important thing to be noticed here is that to
this date it is used for meeting the ends of the Justice. The Supreme Court has
always used it in an equitable manner to bring parties to the Justice by not
causing unfair harm to the other interested person. Even though the above-stated doctrine of law has both pros and cons according to the conditions in
which it is used and applied but, it doesn’t take more than a glimpse of eyes
to make a knife, used for the kitchen purpose to be the cause of someone’s
death. However, it all depends upon the person using and controlling it.
Likewise, the doctrine and procedures of the law are a good servant used by the
Masters of the Law for meeting their justified ends and it all depends upon the
Masters to how to use them. It doesn’t take much time to make the procedure torture upon the bearer.
The justification is all that is given in the end but
what matters is the roads taken to meet the justification. Wasn’t it in the
hands of the Masters to have moulded the things in some other direction? Wasn’t
it the duty of the Masters to have brought Justice to the people rather than
satisfying their intellectual superiority by creating a new Law which will be
descending their Legacy?
It is not sure that the pending case relating to the
abrogation of article 370 will meet this end but if it does, then the
Masters will have to be accountable for their actions which cast doubt over
their credibility to do justice or were merely techniques of diverting demand
of justice into the legal technicality. Even if their actions were merely a
diversion, was it over and above their control, and the only last resort
possible?
By: Himanshoo Atri
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