Punishing victims, rewarding perpetrators: The Supreme Court’s creative contortions

The Babri Masjid ruling inaugurated a pattern where the Court berated the government or its favoured party, which still ended up on the winning side.

Girish Shahane

“The attempt to abrogate Article 370 is likely to meet its end in the Supreme Court”. That’s a line from a column I wrote after the Indian government radically changed the status of Jammu and Kashmir in August 2019. The court took four years to hear the case despite the crucial constitutional questions raised. By the time the verdict was ready to be pronounced in December 2023, I had changed my mind about the likely outcome. To quote Chief Justice DY Chandrachud’s favourite singer-songwriter, you don’t need a weatherman to know which way the wind blows.

While the practical effect of the Article 370 judgement appeared predictable, I was interested in the reasoning the bench would use to support the abrogation, for this is where judges had shown true creativity in the recent past.

In a case related to the change in government in Maharashtra, a bench of Chief Justice Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha found that the Maharashtra governor had not acted in accordance with the law in calling for a floor test. Yet, the court refused to reinstate former chief minister Uddhav Thackeray, citing the fact that he had resigned instead of facing that same floor test.

The new state government led by Shiv Sena faction leader Eknath Shinde that came into existence as a direct consequence of the illegality was permitted to continue undisturbed….

https://scroll.in/article/1062400/punishing-victims-rewarding-perpetrators-the-supreme-court-and-its-creative-contortions

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