The Supreme Court Has Got It All Wrong On Kashmir

I do not know what prompted the Bar Association of J&K to approach the Supreme Court for a ban on the use of pellet guns in Kashmir. I am not even privy to the arguments it put forth for imposing such a ban. But if the plea of the Association came as a surprise, the observations of the court have left me completely baffled.

The security forces in Kashmir, in order to tackle stone-pelting mobs, generally use pellet guns. The justification for their use is that injuries caused by pellet guns are generally not fatal and thus enables them to disperse the crowd and control the situation at a cost that is cheaper in terms of human lives compared to the use of more lethal weapons. It is another matter that pellet guns can cause unintended injury to any part of the body and when the pellets hit the eye, they can cause injury leading to blindness.

Nearly a hundred people were blinded in Kashmir during last year's upheaval because of the use of pellet guns. The anger in the Valley at their use is therefore both understandable and justified. The people feel that they have been specially subjected to this discriminatory treatment as nowhere else in the country have pellet guns been used to quell or disperse crowds.

I am against the use of pellet guns in Kashmir. The government feels concerned too, hence the search for its replacement. But whether pellet guns should be used or not in a given situation is for the government and the law and order authorities to decide, not the Supreme Court. Perhaps, it should not have entertained the petition in the first place.

The advice of the court to the Bar Association is even more astounding. It has told the Bar Association (as if it was within its power) to tell the youth not to throw stones and assured the Association that if stone-pelting stops, the court would order the government not to use pellet guns for two weeks obviously on an experimental basis. Why on earth would the security forces resort to the use of pellet guns if stone-pelting stops? They do not need a Supreme Court order for this!

The other observations of the court are equally baffling. It has said that both sides should "take two steps back" and "address the core issues". This is a very constructive approach no doubt. But at the same time, the court has also told the Kashmiris "if you keep throwing stones, and close schools and colleges, how will talks happen? Talks must be within the framework of the Constitution. "Could the official spokesperson of the government have done any better? The court in other words, is laying rigid conditions for the talks to take place and they are: -- a) that stone-pelting must stop; b) that schools and colleges must reopen; c) that talks must be held within the framework of the Constitution; and d) that the Bar Association must assume the responsibility for ensuring all this. The court  told the Association "this is (going to create) history. You can play a role and you will be remembered for times to come."

Any one who has even a nodding acquaintance with the problems in Kashmir would hardly be able to suppress a laugh at the observations of the court. First, it is not within the power of the Bar Association of J&K to ensure that these conditions are met. If it had such clout, it would have ensured that stones were not thrown in the first place. The same applies to the opening of schools and colleges. And as far as the Constitution is concerned, which Constitution is the Supreme Court talking about? A Constitution which has been amended 101 times? If during the talks it is agreed that the Constitution should be amended further to accommodate the understanding reached, would it still be within the framework of the Constitution? There is nothing which is not amendable in the Constitution except the basic features as defined by the Supreme Court itself, until some other bench rules otherwise.

Perhaps encouraged by the attitude of the Court, the Attorney General of India asserted "the government would come to the negotiating table only if legally recognized stakeholders participate in the dialogue and not with the separatist elements who rake up the issue of Accession or Azadi in Kashmir."

While I am amazed at the naivete of the learned judges of the highest court of the land, the statement of the Attorney General effectively betrays the lofty promises made in the Agenda for Alliance of the PDP-BJP government in J&K.This is also a clear departure from the Vajpayee line on Kashmir so lovingly referred to in the Agenda.

Some weeks ago, the court had tied itself in knots in the Ayodhya case. While hearing a petition filed by Subramaniam Swamy, the court told him to hold a dialogue with all concerned to arrive at an amicable settlement of this vexed issue. The Hon'ble Chief Justice even offered to act as a mediator in the case. It was only in the next hearing that the court realized that Swamy was not a party to the dispute and withdrew its advice to him to hold a dialogue with all concerned. The reluctance of some parties to the dispute persuaded the Hon'ble Chief Justice to withdraw his offer of mediation. The Ayodhya case has once again been consigned to the judicial cold storage.

The short point is that the courts, including the highest,should restrain themselves from delving into matters which are entirely political. Political issues are best left to the politicians and to the political process. Jammu and Kashmir is a political problem crying out for a political solution. It has legal overtones, no doubt, but those concerns would be taken care of by the political dialogue as and when it starts.

(Yashwant Sinha is a senior BJP leader and former Union Minister of External Affairs.)

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