The Supreme Court of India is the highest judicial body in the country. It is considered to be independent and supreme when dealing with matters of constitutional interpretation and federal distribution of power. However, of late, this body has proven to be ineffective, or at the most, slow. There are several things necessary to keep in mind.
Firstly, it has been more than 150 days since the state of Kashmir has been under lock down. However, instead of a suo moto cognizance of laws framed by the Parliament and actions undertaken by the Cabinet, the apex court has chosen to remain complicit, or at least, refused to take any swift action. In times like these, an important point that we must keep in mind is that complicity and neutrality are merely enabling mechanisms of fascism.
Secondly, the Supreme Court of India, since independence, has failed to uphold the true and original applicability of autonomy conferred on the Jammu and Kashmir region following the Instrument of Accession. Since the 1950s till present, Article 370 has been diluted and the desired levels of autonomy have been deliberately withheld.
We need to keep another point in mind that political and ideological affiliations as well as leanings should not be a part of the objective guardianship of the Constitution, a task which the Supreme Court of India is entrusted with.
Thirdly, the human rights violations in Kashmir, especially since the 1970s and 1980s (and even before that) have been conveniently overlooked. The use of Armed Forces Special Powers Act (AFSPA) which guarantees legal impunity (and immunity) to the armed forces has been severely misused.
Several reports by international organisations (see here) have highlighted these. However, internally, there has been no reaction or very negligible response towards the same in our own country, from the top courts. Are human rights violations excusable when it comes to Kashmiris? The army had been unsuccessful in stopping the mass exodus of Kashmiri Pandits in 1990s. What, then, is the utility of such an Act?
Fourthly, the issue of human rights violations is not alienable from the concept of right to self-determination. Ultimately, all forms of Kashmiri resistance are aimed at achieving this right. Upholding other human rights without giving due importance to self-determination is counter-productive and inadequate.
It is necessary for the judiciary to maintain their integrity and uphold their virtues of being fair, impartial and not succumb to pressure from ruling party as to what constitutes “national interest.”