1. CJI mulls listing of pleas on removal of J&K special status

‘This is a five-judge Bench case… Let me ask other judges’

Chief Justice of India N.V. Ramana on Monday said he would discuss with other judges and consider listing, after summer vacations, the petitions challenging the abrogation of special status of Jammu and Kashmir under Article 370, which stripped the people of their special privileges.

“Let me see after the vacations… This is a five-judge Bench case… Let me also ask other judges,” the CJI said, addressing a group of senior advocates, including P. Chidambaram, Kapil Sibal and Shekhar Naphade.

Summer holidays begin from May 23 and the court reopens on July 11. Chief Justice Ramana retires on August 26.

The senior advocates, in an oral mentioning before the CJI, said the Article 370 case had been pending in the Supreme Court for more than two years even as a separate challenge has been filed against the Centre’s decision to appoint a Delimitation Commission to redraw Lok Sabha and Assembly constituencies of the Union Territory of Jammu and Kashmir.

“Let the case be listed immediately after the vacations,” Mr. Chidambaram urged the court.

The case has not come up after a five-judge Bench led by Justice Ramana (as he was then), in an order in March 2020, refused to refer the petitions to a larger Bench.

2. The quarrel over Kuril Islands

What are the different claims Russia and Japan assert over the disputed islands? Why has the issue resurfaced again?

A set of four islands situated between the Sea of Okhotsk and the Pacific Ocean near the north of Japan’s northernmost prefecture, Hokkaido are under dispute as both Moscow and Tokyo claim sovereignty over them. But they have been under Russian control since the end of World War II.

In 1956, it was suggested that two of the four islands be returned to Japan once a peace treaty was signed. However, persisting differences prevented the signing of a peace treaty though the two countries signed the Japan-Soviet Joint Declaration, which restored diplomatic relations.

Soon after the Russian invasion of Ukraine, Japan’s Foreign Minister stated that Russia had “occupied” the southern part of the Kuril Islands, thereby violating international law. Additionally, Japan’s recent Diplomatic Bluebook for 2022 described the Kuril Islands as being under Russia’s “illegal occupation”.

The story so far: The Russian invasion of Ukraine seems to have brought to the forefront some other disputes that Russia has with the West’s allies. On April 22, Japan’s Diplomatic Bluebook for 2022 described the Kuril Islands (which Japan calls the Northern Territories and Russia as the South Kurils) as being under Russia’s “illegal occupation”. This is the first time in about two decades that Japan has used this phrase to describe the dispute over the Kuril Islands. Japan had been using softer language since 2003, saying that the dispute over the islands was the greatest concern in Russia-Japan bilateral ties.

What are the Kuril Islands/ Northern Territories?

These are a set of four islands situated between the Sea of Okhotsk and the Pacific Ocean near the north of Japan’s northernmost prefecture, Hokkaido. Both Moscow and Tokyo claim sovereignty over them though the islands have been under Russian control since the end of World War II. The Soviet Union had seized the islands at the end of World War II and by 1949 had expelled its Japanese residents. Tokyo claims that the disputed islands have been part of Japan since the early 19th century.

What lies behind the dispute?

According to Tokyo, Japan’s sovereignty over the islands is confirmed by several treaties like the Shimoda Treaty of 1855, the 1875 Treaty for the exchange of Sakhalin for the Kuril Islands (Treaty of St. Petersburg), and the Portsmouth Treaty of 1905 signed after the Russo-Japanese war of 1904-05 which Japan had won. Russia, on the other hand, claims the Yalta Agreement (1945) and the Potsdam Declaration (1945) as proof of its sovereignty and argues that the San Francisco Treaty of 1951 is legal evidence that Japan had acknowledged Russian sovereignty over the islands. Under Article 2 of the treaty, Japan had “renounced all right, title and claim to the Kuril Islands.”

However, Japan argues that the San Francisco Treaty cannot be used here as the Soviet Union never signed the peace treaty. Japan also refuses to concede that the four disputed islands were in fact part of the Kuril chain. In fact, Japan and Russia are technically still at war because they have not signed a peace treaty after World War II. In 1956, during Japanese Prime Minister Ichiro Hatoyama’s visit to the Soviet Union, it was suggested that two of the four islands would be returned to Japan once a peace treaty was signed. However, persisting differences prevented the signing of a peace treaty though the two countries signed the Japan-Soviet Joint Declaration, which restored diplomatic relations between the two nations. The Soviet Union later hardened its position, even refusing to recognise that a territorial dispute existed with Japan. It was only in 1991 during Mikhail Gorbachev’s visit to Japan that the USSR recognised that the islands were the subject of a territorial dispute.

Have there been attempts at resolution?

Since 1991, there have been many attempts to resolve the dispute and sign a peace treaty. The most recent attempt was under Prime Minister Shinzo Abe when joint economic development of the disputed islands was explored. In fact, both countries had agreed to have bilateral negotiations based on the 1956 Japan-Soviet Joint Declaration. Russia was even willing to give back two islands, the Shikotan Island and the Habomai islets, to Japan after the conclusion of a peace treaty as per the 1956 declaration. Japan’s attempt to improve ties with Russia was driven by its need to diversify energy sources and Russia by its need to diversify its basket of buyers and bring in foreign investments. But nationalist sentiments on both sides prevented resolution of the dispute.

What next?

Soon after the Russian invasion of Ukraine, Japan made its unhappiness with Russia clear with its Foreign Minister Hideki Uyama, saying that Russia had “occupied” the southern part of the Kuril Islands, thereby violating international law.

Japan has been among the most steadfast of Western allies in denouncing Russian aggression and punishing it with sanctions. The April 22 statement in its Diplomatic Bluebook will further damage relations between the two countries. Japan has probably been spurred by its fears of a Russia-China alliance as Japan itself has territorial disputes and an uneasy history with China.

Secondly, Japan might have felt that this is a good opportunity to further isolate Russia and paint it as a “habitual offender” of international law.

Finally, Tokyo might have been prompted to take this position as it feels that the invasion of Ukraine proves that getting back the Kuril Islands is a lost cause.

Japan’s policy shift on the Kuril Islands will only embitter bilateral relations with Russia while advancing the possibility of its two neighbours, China and Russia, coming together against it.

3. A docket full of unresolved constitutional cases

These involve crucial questions about state power, accountability and impunity, and cannot be left hanging by the courts

A Constitution is entirely ineffective if a rights-violating status quo is allowed to exist and perpetuate for months, or even years, before it is finally resolved.

Some of such cases include the constitutional challenge to the Presidential Orders of August 5, 2019, that effectively diluted Article 370 of the Indian Constitution, and bifurcated the State of Jammu and Kashmir into two Union Territories and the electoral bond scheme.

Judicial evasion of this kind is damaging for the accountability of the judiciary itself. The responsibility for constituting benches and scheduling cases especially cases that are due to be heard by larger Benches rests solely with the Chief Justice of India (CJI).

N.V. Ramana, the Chief Justice of India, stated that he would discuss with other judges and consider listing, after summer vacations, the petitions challenging the abrogation of Article 370 which stripped Jammu and Kashmir of its special status. In this article dated December 7, 2021, Guatam Bhatia outlines how the Court has left a host of highly significant constitutional cases long-pending and why hearing them is important for the accountability of the judiciary.

During the framing of the Indian Constitution, it was proposed that any petition alleging a breach of fundamental rights by the state ought to be judicially decided within one month. While the proposal did not, ultimately, find its way into the text of the Constitution, it nonetheless articulated something of great importance: between the individual and the state, there exists a substantial asymmetry of power. While the violation of rights — whether through executive or legislative action — is relatively costless for the state, it is the individual, or individuals, who pay the price, and who must then run from pillar to post to vindicate their constitutionally guaranteed rights. Consequently, a Constitution is entirely ineffective if a rights-violating status quo is allowed to exist and perpetuate for months, or even years, before it is finally resolved (and often, by the time resolution comes, it is too late in the day for it to have any practical significance).

Blow to accountability

This point, of course, is not limited to the violation of rights, but extends to all significant constitutional questions that arise in the course of controversial state action. Issues around the federal structure, elections, and many others, all involve questions of power and accountability, and the longer that courts take to resolve such cases, the more we move from a realm of accountability to a realm of impunity.

In this context, as 2021 draws to a close, a look at the Supreme Court of India’s docket reveals a host of highly significant constitutional cases that were long-pending when the year began, and are now simply a year older without any sign of resolution around the corner. All these cases involve crucial questions about state power, accountability, and impunity. Consequently, the longer they are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.

Kashmir, electoral bonds

What are some of these cases? First, there is the constitutional challenge to the Presidential Orders of August 5, 2019, that effectively diluted Article 370 of the Indian Constitution, and bifurcated the State of Jammu and Kashmir into two Union Territories, controlled by the Centre. There is a widespread tendency to view the Kashmir question as having been “settled” after the events of August 5, 2019, with it now being a political impossibility to return to the pre-2019 status quo .

Regrettably, this tendency seems to have gripped the Court as well in how assiduously it has avoided hearing and deciding the case. But politics aside, the case raises certain fundamental questions about constitutional power and accountability.

First, it raises the question of whether the Centre can take advantage of an Article 356 situation in a State — a time when no elected government and Assembly is in existence — to make permanent and irreversible alterations in the very structure of the State itself. The answer will have important ramifications not just for Jammu and Kashmir but for the entire federal structure: India has a long history of the abuse of Article 356 to “get rid of” inconvenient State governments, and a further expansion of the power already enjoyed by the Centre will skew an already tilted federal scheme even further.

Second, the case also raises the question of whether, under the Constitution, the Union Legislature has the authority not simply to alter State boundaries (a power granted to it by Article 3 of the Constitution), but degrade a State into a Union Territory (something that has never been done before August 5, 2019). If it turned out that the Union Legislature does have this power, it would essentially mean that India’s federal structure is entirely at the mercy of Parliament: Parliament could then, constitutionally, convert India from a union of States to a union of Union Territories, if it so wanted. Needless to say, this — as well — would signal a hugely significant shift in power to the Centre.

As long as both these questions remain undecided, however, the acts of August 5, 2019 remain presumptively legal, with the prospect that they may well be repeated in other parts of India. For this reason, the Supreme Court’s now two-and-a-half-year delay in hearing and answering these questions is unconscionable.

Another long-pending case is the constitutional challenge to the electoral bonds scheme, that has now crossed four years. The electoral bonds scheme authorises limitless, anonymous corporate donations to political parties, making election funding both entirely opaque to the people, as well as being structurally biased towards the party that is in power at the Centre. In numerous central and State election cycles in the last four years, thousands of crores of rupees have been spent in anonymous political donations, thus impacting not only the integrity of the election process but also the constitutional right of citizens to an informed vote. However, other than two interim orders, the Supreme Court has refused to accord a full hearing to the constitutional challenge. In a few months’ time, it will be one full five-year cycle of central and State elections, with the case still awaiting a hearing: another black mark on the Court’s record.

It is important to note that in both these cases, the Supreme Court’s inaction is not neutral, but rather, favours the beneficiaries of the status quo . In other words, by not deciding, the Court is in effect deciding — in favour of one party — but without a reasoned judgment that justifies its stance.

Other key cases

This is also true for a number of other cases pending before the Court. For example, as far back as 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority. This verdict was immediately stayed when it was appealed to the Supreme Court, but in the intervening years, it has never been heard. Thus, the CBI continues to function — often controversially — despite a judgment by a constitutional court that has found its very existence to be illegal.

More recently, constitutional challenges to the Citizenship (Amendment) Act (CAA), filed in the immediate aftermath of the legislation’s enactment, remain unheard, as do the challenges to the much-criticised Section 43(D)(5) of the Unlawful Activities (Prevention) Act, which makes the grant of bail effectively impossible, and is responsible for the years-long incarceration of several people. The challenge to Section 43(D)(5) is perhaps the case that most directly affects civil rights, as the section continues to be applied on a regular basis (most notoriously, in recent times, in the Bhima Koregaon case). And cases of this kind are legion.

It wounds the judiciary

Apart from benefiting the party that profits from the status quo — which, as we have seen, is invariably the state — judicial evasion of this kind is also damaging for the accountability of the judiciary itself. Once a court decides a case, its reasoning — which must, by definition be public — can be publicly scrutinised and, if need be, critiqued. In the absence of a decision, however, while the Court’s inaction plays as significant a role on the ground as does its action, there is no judgment — and no reasoning — that the public can engage with. For obvious reasons, this too has a serious impact on the rule of law.

It must be acknowledged that the responsibility for constituting benches and scheduling cases especially cases that are due to be heard by larger Benches rests solely with the Chief Justice of India (CJI).

While the three previous CJIs have been criticised for excessive deference to the executive, the current CJI has been on record stressing the importance of the rule of law and the independence of the judiciary. One way of demonstrating that in action might be to hear — and decide — the important constitutional cases pending before the Court.