When it comes to the Article 370 suit, the petitioners are bound to argue that the court will only consider issues of constitutional procedure, not other ones. This writer, however, would like to point out that this approach is incorrect. Looking at the Article 370 imbroglio only through the lens of legal technicalities would be detrimental to the Republic. If the Republic of India gets corroded or dismantled, none of our institutions will survive and our children will be condemned to endless and horrifying civil strife.
It is vital that our highest court consider the principle of equity. Equity is a quaint idea embedded in Common Law, which demands that the sovereign ensures that tricky situations are not dealt with only according to the letter of the law. Instead, the sovereign must ensure that substantive justice is done. For many centuries, England even maintained separate courts for equity matters.
Dr. Ambedkar, who was a barrister trained in Common Law traditions, was a glutton for the principle of equity. It is a fact that the Indian Constitution is the only one among written constitutions that has a specific Article on equity. It empowers the Supreme Court to act beyond the letter of the law if substantive justice issues are involved. Someone like Ambedkar would not have let such an Article into the Constitution by accident. It was clearly done with the deliberate intent of ensuring that the overall imprimatur of justice takes precedence over narrow statutory interpretations. Incidentally, Mahatma Gandhi was a great lover of the principle of equity. One of his favourite books was Snell’s Equity. He saw parallels between that book and the Bhagavad Gita.
Let us consider the Ayodhya judgment. One party lost the case. As the loser, the party could have been left with nothing or even asked to reimburse the costs of the winner. Instead, the court exercised its discretion to award the party a separate piece of land. This was done under the powers granted to the court by the Constitution, precisely in the interests of equity, and in order to reiterate the principle that the penumbra of fairness and justice, in its majesty, covers all citizens and all groups of citizens.
Let us now consider Article 370.
Also read: Abrogation of Article 370 ‘death of democracy as it was done without consent of state’: Digvijaya
Look beyond the procedural issues
It is appropriate to examine the procedural aspects not only of its repeal, but also of its original creation including the clearly stated dictum that it was supposed to be temporary. But beyond the procedural issues, are the substantive ones of justice. If a panchayat or a municipality uses its incumbency status to persecute large numbers of citizens or to condemn their jurisdictions to live under the shadows of crime, terrorism, insurrection, and intimidation, and if this situation persists for years, then it is incumbent on the President of our Republic to intervene and change the conditions, which allow for this persistent assault on the very foundational principles of our freshly imagined nation-state.
Consider the fate of peaceful, peaceable, and law-abiding persons who are forced to put up with interminable stone-pelting and who are in fact required to publicly support the same. Consider again, if people are punished for not openly supporting the celebratory funeral processions of self-proclaimed terrorists who are re-categorised as martyrs. Consider the fate of citizens of our country who cannot go to cinemas simply because of the ukases and diktats of goons. Consider the situation of women who cannot go to beauty parlors as the very idea that they should want to embellish or adorn their bodies has been decreed as sinful by a bunch of thugs. And this in a country, where we have a lost wax bronze sculpture going back to Mohenjo-daro, where a woman is dancing with abandon and Chandraketugarh where we have a terracotta statue of a woman looking into a mirror as she adjusts her hair!
If any panchayat or city corporation imposed such restrictions, would we be comfortable with that? And if that local government body lets that situation continue for years on end, should our President stand by and not intervene? Forget one state, if the rest of the country gets the message that it is for state governments to appear to acquiesce in, let alone connive in the celebration of the martyrdom of proud terrorists, the corrosive effect will soon force us to say goodbye to the first republic of India.
Now, let us look at the rights and privileges of citizens.
…in to the rights
If the municipal corporation in Mumbai decided that the tenancy rights of women stand abrogated and only men can claim them, would we tolerate that? If the august Bruhat Bengaluru Mahanagara Palike refused to change an old regulation that women who marry non-Bangaloreans cannot hold property in their great city, would that be acceptable to us? If a village panchayat were to refuse to provide reservations to Scheduled Castes, something which is central and basic to our Constitution, are we supposed to let that pass? If the state of Maharashtra were to decide that Biharis in Mumbai can vote only in parliamentary elections and not in assembly elections, would that pass muster with the current petitioners before the Supreme Court? That these are new laws or old laws still in operation does not change the fact that such laws are inherently unjust and it is never too late to get rid of injustice.
This bogus autonomy stance, which anyway was enshrined as temporary, has been used to trample over the Fundamental Rights of Indian citizens and hence against its much-vaunted basic structure. And this temporary provision had been made quasi-permanent permitting the local government to oppress our citizens.
The principle of equity demands that real justice should be delivered and persistent injustice wiped out. If this can only be done by means of an elaborate parliamentary procedure, then so be it. The substance must prevail over form. No panchayat, no municipality, no zilla parishad and no state government can lay claim to procedural objections to defend actions that violate our Fundamental Rights and hence the basic structure of our Constitution. The President, representing the will of our Parliament, is obliged to intervene. If the President went along with Parliament to split Andhra Pradesh even when the state assembly explicitly opposed it, then there is no reason at all to ignore the will of Parliament when there are egregious assaults on the rights of citizens. It is incumbent upon the President to accept the Parliament’s verdict and defend citizens and their rights.
It is important to remember that over decades, state assemblies of different political persuasions refused reasonable opportunities to amend inherited laws that were blatantly anti-women, anti-Scheduled Caste and which disenfranchised citizens. To suggest that the parliamentary intrusion during the President’s rule is a sleight of hand, is to miss the point that the claims of federalism and autonomy have been used to violate the fundamental rights of citizens and to ignore the basic structure of our Constitution.
If obtuse and obdurate state assemblies for years and decades do not revoke unjust regulations, these assemblies lose the right to hide behind their autonomy claims. Parliamentary intervention, whether by sleight of hand or otherwise, is the necessary palliative. And this medicine needs judicial confirmation. These were not isolated instances that can be dealt with by administrative responses. These were systemic abuses using the fig leaf of autonomy. Hence the response had to be a systemic one, removing the autonomy which was anyway meant to be temporary. Inherited laws that are against the Constitution must go. And if local bodies choose not to get rid of them, then one way or the other, the President is duty-bound to intervene. This affirms the spirit of the substance of equity prevailing over the technicalities of form.
The American example
In 1957, American President Eisenhower sent Federal troops to Little Rock in Arkansas precisely in order to override the state governor’s contention that he was autonomous and that he could practise racial discrimination. Arkansas became a Union Territory for a while. Purists may argue that Eisenhower was violating sacred principles by trampling on the rights of states or that he did not follow procedures. The question to ask is whether Eisenhower’s decision furthered the principle of equity and justice or not.
Decades of obdurate resistance to sensible non-discriminatory principles could only be countered by violating the citizen-unfriendly autonomy of Arkansas. Cognizant of the fact that this bunkum autonomy claim has resulted in horrendous injustice that has continued for years and decades, the President of India has acted, just like Eisenhower did.
It is not my case that procedural technicalities be overlooked. It is my case that the overarching principle that the Supreme Court should apply is of equity and justice. Substance and content must rule over form.
Jaithirth Rao is a retired businessperson who lives in Mumbai. Views are personal.
(Edited by Anurag Chaubey)