Editorial: Time is of the essence in justice

When the delimitation exercise in the Union Territory of Jammu and Kashmir is almost complete, the rejection of the petition against it by the Supreme Court was almost a fait accompli. After all, the three-member Delimitation Commission is headed by Justice RP Desai, a retired judge of the Supreme Court. The commission wants to increase the representation of Hindu-majority Jammu to 43 and the Muslim-majority Kashmir to 47 to make the total 90 from the earlier 83. As has been the practice, some seats, reserved for the people of the Pakistan Occupied Kashmir (PoK), would be kept vacant, while Pandits and Kashmiri refugees will be given representation through nomination. The Opposition complains that the delimitation has been carried out with a view to benefiting the Bharatiya Janata Party. It should be treated more as an allegation than a statement of fact.

The petitioners wanted the delimitation to be on the basis of the census to be completed later. This would delay elections and restoration of democracy in the UT. That is why the Supreme Court has allowed the delimitation process on the basis of the 2011 census. It is also a fact that for the rest of the country, delimitation is based on the 1971 census. There is a reason for doing so. There are states like Tamil Nadu and Kerala, which have achieved considerable progress in family planning, unlike states like Uttar Pradesh and Madhya Pradesh, where the small-family norm is yet to get a good response. Under these circumstances, states which have a larger population like UP and MP will get more seats in the Lok Sabha, while states like Tamil Nadu and Kerala may lose some existing seats in the House. Also, the UT did not exist until 2019.

The two-member Bench, comprising Justice SK Kaul and Justice AS Oka, who heard the petition, made it clear that the verdict on delimitation would not affect the string of petitions before the court that questioned the vivisection of the State of J&K and abrogation of Article 370 of the Constitution that gave the former princely state certain special powers and privileges. In other words, the two are separate issues that should not be clubbed. The Bench gave a new interpretation under which the Central government is empowered to declare any state a Union Territory. This means that a state like Kerala can be divided into two or three Union Territories, based on the fact that before its integration in 1956, Kerala consisted of the princely states of Travancore and Kochi and Malabar, directly administered by the British. This interpretation goes against the concept of India being a Union of states with more Federal than unitary characteristics.

The Centre’s decision to bifurcate the state of J&K was taken without any political or administrative discussion. In fact, the ruling party had not mentioned it in its successive election manifestos. To be fair to the BJP, abrogation of Article 370 was a core promise of the party, but not converting the state into Union Territories. It is now nearly four years since the Union government took the decision and ended the statehood of J&K. This was tantamount to tampering with the basic structure of the Constitution, which the Kesavananda Bharati verdict had expressly prohibited. In the ordinary circumstances, the apex court should have immediately constituted a Constitution Bench to go into the petitions challenging the government’s decision.

Nothing of the sort was done, as the court took its own sweet time to grapple with the issue. Even now the court is yet to start hearing of the petitions. In the meantime, much water has flowed down the Jhelum and the Indus. In fact, one wonders what purpose would be achieved by a verdict on the judicial validity of the abrogation of Article 370. Much the same had happened in the case of the government’s 2016 decision to demonetise high-denomination currency notes of Rs 1000 and Rs 500 without giving the people any notice. It caused immense damage to the economy and by the time the Supreme Court gave its verdict, it had no value at all. A similar fate awaits the verdict on Article 370.