Judges, Justice and the Constitution

The judiciary, as one of the four pillars of the State, must remain within its constitutional mandate—to adjudicate, not dictate. When the judiciary oversteps its role and encroaches upon the functions of other organs, particularly the legislature, it risks undermining the delicate balance essential to a healthy democracy. Such overreach can hinder the democratic process and disrupt the state’s harmonious functioning.

While courts have the constitutional authority to interpret the Constitution, this power does not equate to infallibility or finality. In a parliamentary democracy, ultimate sovereignty rests with the people, who exercise it through their elected representatives. When contentious issues arise, it is the legislature, through democratic debate and voting by a simple or two-thirds majority as required, that has the prerogative to break deadlocks and determine the course of action.

In a diverse and historically rich society like India, the judiciary carries an added responsibility. It must ensure that both the legislative and judicial processes evolve in alignment with the nation’s socio-cultural and historical fabric. Indian society, shaped by centuries of civilisation, brings with it a unique set of values, traditions, and ground realities. The judiciary must remain mindful of these complexities, ensuring that the interpretation and application of law resonate with the lived experiences and aspirations of its people.

The state of Jammu and Kashmir has borne the brunt of cross-border terrorism for over three decades. The violence has claimed thousands of lives—both civilians and security personnel. In response, the government acted within its constitutional framework, exercising available options with measured restraint. While these efforts achieved some success, complete resolution proved elusive, mainly due to the externally sponsored nature of the insurgency. 

In the aftermath of the 5 August 2019 Reorganisation Act, which restructured the status of Jammu and Kashmir, opposition leaders and parties approached the Supreme Court. They sought judicial intervention to annul the Act, mandate elections for the State Assembly, and restore the region’s pre-2019 status. Following due deliberation and procedural compliance, the Supreme Court directed the government to conduct assembly elections by 30 September 2024.

The elections were held as mandated, and the legislative assembly was reconstituted after a hiatus of nearly seven years. However, following the formation of the elected government, there was a notable resurgence in terrorist activities, particularly in the Jammu region and its higher-altitude areas. Terrorist groups have established hideouts across several strategic regions, including Reasi, Doda, Kishtwar, Rajouri, and Poonch along the Pir Panjal range, as well as in the mountainous areas of southern Kashmir, Kupwara, and the Gurez Valley. Alarmingly, local support and sympathy for infiltrators—fueled by a small but dangerous cohort of domestic collaborators—has grown significantly.

This escalating security crisis has, in part, been attributed to the timing of the recent elections, which many argue were conducted prematurely and against the advice of the central government. Some legal experts have opined that the Supreme Court did not fully consider the potential ground-level consequences of its directive mandating the elections. As a result, we have now witnessed the tragic Pahalgam carnage—an event that raises serious concerns.

While the judiciary plays a vital role in a democracy, it is not exempt from accountability. Notably, the Supreme Court had previously upheld the decision of Parliament and the Union Government to revoke the special status of the former state of Jammu and Kashmir. In doing so, it effectively endorsed the government’s assertion that the region’s conditions were sufficiently abnormal to justify such a significant constitutional amendment. Given this context, one must ask: before directing the Union Government to conduct Assembly elections in J&K by 30 September 2024, did the Supreme Court seek input from any relevant constitutional authorities—the Government, Parliament, or the Election Commission of India—regarding whether the prevailing conditions in the region were conducive to free and fair elections?

There are other questions, too. Did the Court consider that imposing a fixed electoral timeline could inadvertently create an opportunity for subversive elements, both internal and external, to regroup and conspire against the State? Was it aware that such a directive might place enormous operational and strategic pressure on the Ministry of Home Affairs, requiring them to simultaneously pursue both conciliatory and coercive measures to maintain stability? Moreover, did the Court consult with the Union Government, the Election Commission, or the Home Ministry on the status and future of the displaced Hindu minority community, who were driven out of the valley under the threat of terrorist violence, before issuing its order?

These are not merely procedural issues; they go to the heart of national security, democratic integrity, and social justice. Should the judiciary, in exercising its constitutional mandate, not remain conscious of the broader implications of its decisions, especially in matters as sensitive and complex as those concerning Jammu and Kashmir? This is why a growing number of citizens believe that the Apex Court bears a degree of indirect responsibility for the recent carnage in Pahalgam. There is a perception that while the Supreme Court rightly asserts its powers, it does not always acknowledge the corresponding weight of responsibility and that judicial intervention in politically sensitive matters could lead to unintended consequences.

There seems to be no end to the anguish of the Kashmiri Pandit community—subjected to brutal killings, rape, and mass displacement during the armed jihadist insurgency in 1990. When they petitioned the Apex Court for a judicial inquiry into the acts of genocide and ethnic cleansing committed against them, their plea was summarily dismissed. The Court deemed the matter a “three-decade-old obsolete and redundant case.” This stands in stark contrast to its extraordinary responsiveness in other cases, such as opening its doors on a Saturday night during summer recess to grant bail to a petitioner from a privileged background, whose application had already been rejected by two lower courts.

In a climate where institutional trust is waning, it took a courageous voice—that of the Vice President of India, who also serves as the Chairman of the Rajya Sabha and is a distinguished jurist—to articulate what many citizens now feel. He posed a simple yet profound question: How is it possible that no case can be registered against a High Court judge whose private residence was found to contain five to six sacks filled with crores of rupees in cash, which were discovered burning? 

The people of India continue to have immense faith in the nation’s judiciary, particularly in the Apex Court. This faith must never be allowed to erode. It is essential to avoid constitutional overreach into legislative functions to maintain public trust in the judiciary.