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Ravi Munshi

Last week was treacherous for the Kashmiri Pandit community. It had to endure the BJP's declaration dispelling all remaining expectations of a separate homeland for the Pandits. In its defense, the BJP didn't promise anything beyond the return and rehabilitation of the migrant community. Shock and surprise came from the collective misplacement of our priorities and expectations.

Added to that miscalculation, the community has suffered another setback – a decision by the Supreme Court to dismiss the PIL that challenged the validity of Article 370. For an issue that deserves a serious national debate for its far reaching implications – more for the whole of India than just for the Pandits – the honorable court couldn’t muster sufficient proclivity to explain the basis for its action.

At the expense of India’s integrity and national security, the honorable court has involuntarily set a precedence that will only encourage the valley’s religious majority to unabashedly continue bleeding the country as a matter of entitlement while carrying-on with its unjust struggle for independence from the Union. Its action also gives credence, though obliquely, to Pakistan’s long-standing contention that Jammu and Kashmir is a disputed territory, and that special status accorded by Article 370 of the Indian Constitution is an indispensable tool with which India maintains its 'hegemony' over the disputed territory.

Reeling from two profound events that have negatively impacted our collective psyche, one wonders what’s worse – BJP’s clear stand against a separate homeland for the Pandits, or the Supreme Court’s decision depriving the nation an opportunity to plead its case for freedom from the discriminatory Article 370?

As the community recovers from the shock, it runs the risk of engaging in internal bickering and finger pointing at each other. Cornered from all sides, the community is going through a period that will test its resolve to bind together. If there was ever a critical time to act monolithically to the challenges that lay ahead, it’s now. There’s no time to brood over our collective failures of the past.

My ideological opposition to the creation of a Union Territory stems from a deep-rooted reluctance to support divvying up the nation each time it’s faced with an internal discord that threatens it’s integrity. That position remains firm. With the BJP’s campaign promise – coming from no less than the Prime Minister of India – one's dormant hope of seeing the Article 370 abrogated during the UPA administration has turned into a budding trust. Alas, it had to take a minor hit from the Supreme Court, just as one began to repose faith in that promise.

Assurance of adequate safeguards against the repeat of the exodus of the 90’s and AFSPA intact, relocating the community to clusters seemed to be a reasonable alternative. After all no administration worth its salt would let the wound of Article 370 – inflicted upon the nation – fester indefinitely without a surgical intervention to provide enduring relief. Whereas the NDA has shown positive signs, the UPA administration was a disappointment in that regard.

Dismissing PIL brought against Article 370, the Supreme Court has denied the Union of India a day in court. Throwing the demise of the Article into uncertainty, still the honorable court couldn't bring finality to an issue that must be decided by a higher authority – the 'Conscience' of India. The verdict is hardly a deterrence – other avenues exist that will help the community overcome what many might consider, fait accompli.

Limited in its role, the Supreme Court can only interpret laws – not make them. Making laws is a privilege that belongs to the Parliament. There’s still hope the BJP will have both, wisdom and the will, to take up its campaign promise – of doing away with the discriminatory Article – with the same zeal and urgency it showed when announcing its commitment to resettle the Pandits in the land of their ancestors.

The Supreme Court's ruling doesn't rise to the level of a final judgment on the merits or demerits of the case. Even if it did, there are several instances when the Parliament has acted, in effect, to quash its ruling. A glance at the following two examples should instill confidence in the BJP’s ability to erase the anomaly existing in the annals of the Indian Constitution.
  • 1. Supreme Court judgment of April 24, 1985; Mohd. Ahmed Khan v. Shah Bano Begum & Others, diluted by the Parliament by passing The Muslim Women (Protection of Rights on Divorce) Act 1986.
  • 2. 24th Amendment in 1971 passed by the Parliament to partially abrogate the Supreme Court judgment and assert power of the Parliament to amend any part of the Constitution including provisions relating to Fundamental Rights.

With the 'Marg' to a separate homeland effectively blocked by the BJP, and the uncertainty that stems from the Supreme Court's summary judgment, prudence demands that the community insist on the government to keep the rehabilitation plans in abeyance until the threat of Article 370 has passed. For once the community can't be herded back to the valley without its consent, unless autocrats have come to rule the Center. Prudence also demands that there be an extraordinarily strong show of support for the BJP's campaign promise to rid the nation of its Constitutional mishap.

Contrary to my earlier views, willfully returning to a land that celebrates Article 370 is no more a viable option, particularly without credible evidence from the Center that the ‘Sword of Damocles’ will be removed in due course. I believe, all resettlement initiatives must, therefore, tie the return formula to a J&K state that's free of Article 370.