Tuesday, August 12, 2008

Article 143 as a safety valve

While discussing the ongoing turmoil in Jammu and Kashmir, Rajeev Dhavan has advanced a specious suggestion to defuse it. According to him, the Government should approach the Supreme Court for an advisory opinion on this question: "Is it consistent with Indian secularism for the state to make land grants to religious endowments for religious purposes? If so, in what circumstances, in what manner and for what purposes and to what extent?"

Dhavan says: "The SC's advisory jurisdiction has quelled many disputes including Berubari (1965), the UP crisis (1965) and the Babri Masjid dispute (1994). It is a safety valve".

Dhavan admits that the transferred land is secular land of no religious significance, and that it was wrongly and surreptitiously transferred. The policy of providing land grants is ill-conceived, as it will have implications if this is available to all religious endowments elsewhere, he says.

One is tempted to agree with much of what Dhavan says about the non-merits of land transfer to the Amarnath Board in the first place which triggered the controversy. But having triggered it, should the Executive now wash its hands of, and ask the Judiciary to sort out the mess which it has created? It may be recalled that even in the Ayodhya reference case, the Supreme Court refused to answer the question referred to it by the President whether a Hindu temple existed at the disputed site. The question was returned respectfully unanswered. The executive may buy time, by making a Presidential reference under Article 143; but like the Ayodhya dispute, it will remain unresolved.
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