UK Supreme Court vs Indian Supreme Court

A Scroll.in columnist writes-

The manner in which the British court dealt with the case (viz the legality of proroguing Parliament) offers a great lesson for India’s own Supreme Court, which has failed to rise to the occasion at a time when a majoritarian executive has mounted an unprecedented attack on the country’s institutions and constitutional scheme.

This is foolish. There has been no 'unprecedented attack' on India's institutions and constitutional scheme. The Indian Supreme Court has signaled this. By contrast, in the UK, membership of the European Union caused British law to become subordinate to European Law. This necessitated the 2005 Constitutional Reform Act  which created the British Supreme Court (which came into existence in 2009) and which also substantially reduced the powers of the Lord Chancellor who would no longer be Head of the Judiciary.

India can't learn anything from a country which only created a Supreme Court ten years ago and only did so because it was ceding sovereignty to the European Union.

The UK has a completely different system of law in Scotland. An English High Court said prorogation was legal but the Highest Scottish Court said it was illegal. Thus, as a matter of urgency, the Supreme Court had to step in. It has upheld the Scottish verdict.

BoJo's present predicament arises out of the Fixed term Parliament Act of 2011 which was brought in to reassure the Liberal Party when it entered a coalition government with the Conservative Party. He can't call a General Election because Labor's Jeremy Corbyn won't be goaded into accepting such a challenge at this time- though he did permit Theresa May to call an election in which she suffered an unexpected reverse.

The Indian situation could not be more different. We have a strong government which has a solid majority. It is the Opposition which is in disarray. Parliament is already sovereign in India. Modi's power comes from Parliament. By contrast, BoJo no longer commands a majority in the British Parliament. The Speaker is an open enemy. The British Prime Minister has been vilified and, in turn, has vilified others in a manner which have had no parallel in recent British history. By contrast, Modi's ascendancy over the House is comparable to that of Jawaharlal Nehru in his prime.

The United Kingdom, it is sad to say, has never been more disunited. Scroll.in, with typical fatuity, thinks that Britain is showing the way for India.

The United Kingdom’s top court listed the matter within a week of the case being filed and formed a 11-judge bench, the largest possible.

Why did it do so? The answer is that Scotland's Highest Court had disagreed with an English High Court. A fault-line between Scottish law and English law had appeared. Moreover, European Law- till Brexit actually occurs- has to be respected. That is why the British Supreme Court, which was only created ten years ago so as to comply with European Law, had to take swift action.

In India, by contrast, Amit Shah had acted perfectly in accordance with Indian law and practice. Parliament is solidly behind his action. Some stupid people filed illiterate briefs which were prima facie absurd. Had the Indian Supreme Court rushed to judgment, it would have been obliged to rubber stamp the Government's action.

Dates for arguments were quickly set. The matter was concluded in just over two days. The judgement was delivered on Tuesday, when the court struck the prime minister’s decision down in a brief but powerfully articulated order.
The unprecedented nature of the British situation could be compared to the Bharatiya Janata Party government’s decision on August 5 to hollow out Article 370 of the Constitution. To begin with, the special status for Jammu and Kashmir was removed in a matter of hours. No proper debate was allowed on the matter, strangling the life out of the parliamentary system.

What proper debate could there have been? A minority could have screamed and shouted. But the majority could have shouted even louder.

Unlike Britain, where the Tory party is deeply divided on this issue and the PM can't command a majority for 'No Deal', India has a strong and stable Government which is completely united on Article 370.

In addition, Kashmiris were shackled by severe restrictions on movement and communications, some of which continue even 50 days later.

But this has happened very frequently! What is different this time around is that there have been no casualties.

This violation of parliamentary tradition and the trampling of the fundamental rights of a large section of citizens should have forced an immediate, elaborate hearing from the Supreme Court.

'A large section of citizens'? The Valley has less than half a percentage of the Indian population! Anyway, this same thing has been happening repeatedly for decades.

This has not happened. In habeas corpus writ petitions challenging the detentions of political leaders and others in Kashmir, the Supreme Court refused to examine the legality of the matter immediately.

Sheikh Abdullah passed the Law which is being challenged. The habeas corpus petitions are prima facie infructuous. The fact of the matter is that Kashmir Valley is subject to both external and internal terrorism and insurgency. Pakistan is threatening a nuclear war on this issue. If it chooses, the Government could declare a State of Emergency because of this clear and present danger. The Supreme Court is right to treat any petitions filed in this connections purely as a matter of law rather than take an alarmist view not supported by the facts.

On the constitutional questions that have been raised by the abrogation of Jammu and Kashmir’s special status, the court does not seem to think this is a matter urgent enough for a swift hearing. It has scheduled a hearing for October. Instead, a five-judge bench continues to hear the title suits in the Babri Masjid case, showing great eagerness in completing the arguments.

The Babri Masjid case has been dragging on for years. It is perfectly proper for the Court to finish with it. It must not waste time getting diverted by topical, but infructuous, petitions. Cretins who write for Scroll.in don't represent anybody save their paymasters.

As the highest constitutional court, the Supreme Court has the discretion to decide what matter needs its urgent attention. But this discretion must be exercised with public good as the driving force. In this, the UK court has set an example that the Indian judiciary would do well to emulate.

The 'public good' has a quantitative aspect. The Babri case is important to hundreds of millions of Indians. Kashmir Valley is important to only a very small fraction of that number.

The UK court was only set up ten years ago to comply with European Law. If Brexit goes ahead, it is likely that there will be another Constitutional Reform Bill the next time a party with a solid majority commands the House.