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Pavan K. Varma | Fight Terror, But Also Seek Accountability From Govt

We have yet to see what that will be, but it has to be more than just a Balakot kind of strike. In view of the continued and blatant use by Pakistan of terrorism in J&K and elsewhere, India must give a befitting response. The hearts of all Indians are with the innocent victims of these dastardly terrorists

The terrorist carnage at Pahalgam has shocked India and the world. The sponsorship of Pakistan is obvious. Prime Minister Narendra Modi has vowed to take revenge. We have yet to see what that will be, but it has to be more than just a Balakot kind of strike. In view of the continued and blatant use by Pakistan of terrorism in J&K and elsewhere, India must give a befitting response. The hearts of all Indians are with the innocent victims of these dastardly terrorists.

At the same time, we have the right to also ask for accountability from those responsible for the enforcement of security in the Valley. From 2019 to 2024, J&K has been under President’s rule. Even with the election as chief minister of Omar Abdullah in 2024, security, police, counter-intelligence and law and order vests with the lieutenant governor and the Central government, since J&K is a Union Territory. True, terrorism by its very nature cannot always be pre-empted, yet the question remains how terrorists could just walk into the Pahalgam valley — one of the densest hubs of tourism — and kill 28 innocent tourists? Why was there — as has been reported — not even a policeman — leave alone a police post — at the nearby Baisaran valley, a popular destination for tourists? In a democracy, no authority — however high — is exempt from interrogation and accountability for omissions and commission under its watch.

The question of democratic accountability applies also to the current attack by the vice-president (VP) Jagdeep Dhankhar on the Supreme Court (SC) for questioning what he calls “parliamentary supremacy”. I have no quarrel with Mr Dhankhar as a person. In fact, I find him to be quite a likeable person. Some years ago, I was speaking in Kolkata on my book Adi Shankarcharya: Hinduism’s Greatest Thinker, and as the governor of the state, he was slated to attend for about 15 minutes. But he stayed until the end of my speech. Later, when we met in Delhi, he vividly recalled the occasion, and was effusive in his appreciation. His hospitality and ready laughter made a distinct impression on me.

However, in constitutional matters, personal likes or dislikes are secondary. For a person who holds the second highest post in the country, what matters is his interpretation of the Constitution, and the role of vital constituents within it. One constituent of utmost importance is the Supreme Court, and the VP has accused it of not only of “judicial overreach”, but of using Article 142 of the Constitution as “a nuclear missile” against the supremacy of Parliament. These are strong words, and his critique is not new. In December 2022, shortly after assuming office, Mr Dhankhar stirred a debate by questioning the landmark Kesavananda Bharati verdict (1973), which established the right of the SC to protect the “basic structure” of the Constitution. He saw this as circumscribing Parliament’s power to amend the Constitution, which he believed was absolute. Mr Dhankhar argued that this judicial “innovation” had no explicit basis in the Constitution and undermined parliamentary sovereignty. His remarks were seen by many as an indirect challenge to the judiciary’s role as the final interpreter of the Constitution.

Now, his latest criticism — targeting the Supreme Court’s intervention in the President’s discretion regarding the assent to state bills — has added fuel to the fire. The immediate trigger appears to be the Supreme Court’s observations on governors — particularly in Opposition-ruled states — sitting on bills without action. In Tamil Nadu, Kerala, and Punjab, state governments have accused governors of acting as “agents of the Centre”, deliberately delaying bills for years to frustrate state legislatures. The Supreme Court’s insistence on timely decisions is thus seen as a necessary corrective to prevent constitutional offices from being weaponised for political ends.

Mr Dhankhar’s resistance to this judicial oversight raises an important question: If constitutional functionaries fail in their duty, who should ensure accountability? The Constitution itself provides no explicit timeline for governors or the President to act on bills. In such a scenario, judicial interpretation becomes inevitable to prevent abuse of power. The question of issuing directions to the President is laughable, since she is a constitutional authority who acts on the advice of the Council of Ministers.

To my mind, Mr Dhankhar is labouring under an unfortunate misinterpretation. The SC is not questioning the Parliament’s unquestioned constitutional authority to enact laws. What the SC is doing is to examine whether such laws are in conformity with the Constitution, in letter and spirit. This is the unquestioned mandate of the apex court. Otherwise, there would be no checks and balances, and the legislature could run riot. A political party with an absolute majority in the Lok Sabha and a “managed” one in the Rajya Sabha could, for example, pass a law declaring India a Hindu state. The SC would be within its rights to strike it down because the law blatantly violates Article 25 of the Constitution, which gives all persons the fundamental right to freely profess, practice and propagate their own religion. It would also be violative of the very Preamble of the Constitution, which bestows on all Indians “liberty of thought, expression, belief, faith and worship”.

The only answer to arbitrary legislative majoritarianism, or deliberate executive inaction, is the scrutiny and powers vested in the SC. Yes, there are certain occasions of possible judicial overreach, but these do not mean that the basic provision of the Constitution, that all executive and legislative action is subject to judicial review, is thrown out of the window. In positing the Parliament in opposition to the SC, Mr Dhankhar is essentially creating an unnecessary confrontation that the Constitution had categorically resolved ab initio, and which could threaten the functioning of a parliamentary democracy.

The entire country is united today in fighting Pakistani sponsored terrorism. But the right to interrogate, ask questions and seek accountability cannot be brushed away by an appeal to patriotism, just like the right to subject laws to judicial scrutiny cannot be wished away by claiming the unchallenged supremacy of Parliament. In particular, where the SC is concerned, it’s right to protect the Constitution can never be whittled down or diluted.

( Source : Asian Age )
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