Article 370 | J&K cannot be a Union Territory permanently, CJI DY Chandrachud said during the hearing.
In a significant development during the twelfth day of the Constitution Bench hearing in the Article 370 case, the Supreme Court asked the Union Government to provide a time-frame or roadmap for the restoration of statehood of Jammu and Kashmir (J&K). The bench, comprising Chief Justice of India DY Chandrachud and Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, was actively deliberating upon the issue of conversion of J&K from a state to a Union Territory (UT) in 2019 when its special status under Article 370 was repealed..
Solicitor General (SG) Tushar Mehta, representing the Union Government, referred to a statement made by Union Home Minister Amit Shah in the Parliament while tabling the J&K Re-organization Bill in 2019 that the statehood of J&K would be reinstated in due course of time. When the SG asserted that the UT status is not permanent, Chief Justice inquired about the timing and asked, “How impermanent is this? When are you going to have elections?”
The Solicitor General responded that he would seek instructions on the matter, reiterating that the process of restoring statehood was already in progress.
In the course of the arguments, the CJI also pondered upon whether it was possible for the Union to convert a state into a UT for a temporary period in lieu of national security.
However, the CJI also emphasised that in such a scenario, the Government also had to make a statement before the Supreme Court that that progression of a UT back to a state had to take place. “It can’t be a UT permanently,” said the CJI.
The Solicitor General reaffirmed that the government’s stance was consistent with this approach, as reflected in the Parliamentary statement. The Chief Justice acknowledged the relevance of national security concerns but also highlighted the importance of restoring democracy in the region. The CJI remarked–
“We understand that these are matters of national security…the preservation of nation itself is the overriding concern. But without putting you in a bind, you and AG may seek instructions on the highest level – is there a time frame in view?”
The SG responded–
“I’ll take instructions. But I’ll show statements and efforts…”
The Chief Justice emphasized that while national security concerns were understood, the restoration of democracy in the region was equally vital. “Equally, restoration of democracy is important,” he asserted.
When the hearing resumed at 2 PM, Solicitor General, after taking instructions, informed the bench that the statehood of J&K will be restored, while Ladakh will be retained as a UT.
“The instructions are that UT is not a permanent feature. But I will make a positive statement day after tomorrow. Ladakh will remain UT”, SG said. SG also submitted during the hearing that except for police and public order, all other powers are there with J&K.
Yesterday, the Court had asked the Centre if the conversion of J&K into a Union Territory was consistent with the doctrine of federalism, as it was done when the State was under the President’s rule and its Assembly was dissolved. “It is effectively a State for all purposes except for the entries of police and public order”, he said.
Can State be converted into a Union Territory?
During the hearing today, there was a lively discussion regarding the powers of the Parliament to convert a State into a Union Territory as per Article 3 of the Constitution. To argue that different policy consideration will prevail with respect to Jammu and Kashmir, SG underscored its nature as a border state. At this point, Justice Kaul pointed out that there are several other border states. In response, the SG highlighted that J&K has a different context in view of its history of terrorism and infiltration
At this juncture, CJI asked if the Centre is assumed to have the power to convert a State as a UT, how can it be ensured that such a power is not abused with respect to other States, as apprehended by some of the petitioners. “Once you concede that power to the union in relation to every Indian state, how do you ensure that the kind of abuse they apprehended- this power will not be misused”, CJI asked. SG replied that J&K was “one of a kind situation” which will not arise with respect to other states.
In response, Justice Kaul said, “It’s not one of its kind situation. We have seen the northern border Punjab- very difficult times. Similarly, some states in North East. Tomorrow if there is a scenario that each of these states face this problem…I understood your argument that these border states are their own category. How do you distinguish between J&K with any other border states?”
SG reiterated the historical background of J&K, including its proximity to the Pakistan Occupied Kashmir. He also informed the bench that after the repeal of J&K’s special status, local body elections were held successfully.
“Does parliament have the power to convert an existing Indian state into a UT? If it does have that power, how do we read Article 3?”, CJI asked.
“What is the nature of the exercise of that power? Is it permanent, temporary, what is it?”, Justice Kaul asked.