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Supreme Court asks govt for ‘positive statement’ about statehood status for J&K

By, New Delhi
Aug 30, 2023 01:22 AM IST

The top court’s query on statehood came as the SG defended the August 2019 abrogation of Article 370 and the subsequent reorganisation of J&K into two UTs.

The Supreme Court on Tuesday asked the Union government to indicate if there was a time frame for granting statehood to Jammu & Kashmir, underlining that the restoration of democracy in the region was “very important”, and prompting the Centre to respond that it would come back in 48 hours with a “positive statement” on the issue.

The committee was constituted by the Supreme Court in a suo motu petition in 2018 (AP File)
The committee was constituted by the Supreme Court in a suo motu petition in 2018 (AP File)

“The government has to make that statement before us that its (J&K’s) progression back to state has to take place. It cannot be a Union territory (UT) in permanence... Restoration of democracy is very important. It’s a surviving component for our nation,” a Constitution bench, led by Chief Justice of India Dhananjaya Y Chandrachud, said.

As the court heard the matter of the abrogation of Article 370 and the restructuring of J&K into two Union territories, the central government stressed that J&K will be made a state again but requested for time till August 31 to present a road map for the restoration of its statehood and other aspects of the issue.

Ladakh will, however, continue to remain a UT, solicitor general (SG) Tushar Mehta submitted before the bench, which also comprised justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant. He sought time to have a deliberation at the highest level and come back with a tentative time frame.

“J&K becoming a UT is not a permanent feature. I will make a positive statement on August 31... I can make a statement that it is a temporary measure. Two units were created under the reorganisation in 2019; one (J&K) with a legislature but power of police has to remain with the Centre because of peculiar security position there,” he said.

To be sure, Mehta clarified that J&K presently does not have police under its control because of “peculiar law and order situation”. But the Centre intends to restore “full statehood” to J&K in future while giving back all powers in the State List, including police, to it, he added.

The court’s query on statehood came as the SG defended the August 2019 abrogation of Article 370 and the subsequent reorganisation of J&K into two UTs, arguing there is no constitutional embargo against Parliament reorganising a state into two UTs and that the decision regarding J&K was imperative in view of history of violence, terrorism and its geographical location along the borders of the country.

“At times, it is required to rejig the boundaries of a state. Considering J&K’s strategic importance, history of terrorism and outside influence from neighbouring countries, there will be certain key considerations for the central government. These are policy decisions, and a blueprint was prepared not only of the reorganisation but also what has to be done after the reorganisation,” he argued.

Responding, the bench enquired whether the move to reorganise J&K into a UT was permanent or temporary. “And if it’s not permanent, as you have already indicated, tell us how impermanent this is? And how long to have election?” it asked the SG.

The bench pointed out that parts of Assam were carved out initially as UTs and were granted the status of states once Parliament was satisfied of their stable administrative capacity. “Why is it not possible for the Union to say that right now, in case of a particular state, we have such an extreme situation in terms of national security that we want for a certain stipulated period that a UT should be created. But the creation of this UT is not a feature of permanence. It shall progress back to its position of a state?” it asked Mehta.

“Should the Union not have control only for a stipulated period to bring stability? Ultimately, let’s face it. Whether this is a state or a UT, all of us survive if the nation survives. If the nation itself does not survive, there is no relevance of state or UT. Should we not give that allowance to Parliament to postulate that for a certain period, for the preservation of the nation itself and in the interest of the Union itself, we want for a certain stipulated period that this particular state should go in the fold of a Union territory... on a clear understanding that this shall revert to a position of state over a period of time,” the bench added.

The bench also acknowledged that it may not be possible for the Centre to put forth a fixed period when a UT can regain its statehood, but added that such a progression has to happen. “The government has to make that statement before us that look, that progression back to state has to take place. It cannot be a Union territory in permanence,” it said

To this, Mehta read out the statements made by Union home minister Amit Shah on the floor of the House on August 5, 2019, clarifying that reorganisation of J&K into a UT was not and that after the situation returns to normalcy, it will become a state again.

The court replied: “We are conscious of the fact that these are matters of national security and that’s why we don’t want to bind you down to a timeline...Ultimately preservation of the nation itself is an overriding concern. Without putting you in a bind, seek instructions at the highest level. Is there some time frame in view? Restoration of democracy is very important. It’s a surviving component for our nation.”

Mehta, on his part, referred to the first-ever district development council (DDC) elections in J&K in December 2020. “For the first time in history, local body elections took place in J&K, and 34,000 candidates were elected. We now have elected representatives,” he added.

Responding, the bench asked Mehta: “We take your point that the progression has already begun. Is there a road map? Tell us what the road map is.” The SG said he would come back with instructions on Thursday.

The bench is seized of a raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations that have laid a challenge to the abrogation of Article 370 soon after the presidential order in August 2019. On July 3, the Supreme Court notified the setting up of a new Constitution bench, comprising its five most senior judges, that began day-to-day hearing in the case from August 2.

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