On Tuesday (29 August), during the 12th day of hearing on a batch of pleas related to the dilution of Article 370, the Supreme Court asked the Union Government to provide a time frame or roadmap for the restoration of the statehood of Jammu and Kashmir.
The 5-judge constitutional bench headed by CJI DY Chandrachud asked this specific query while deliberating the issue of the conversion of J&K from a state to a Union Territory (UT) as per the J&K Re-organisation Bill in 2019.
CJI: 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? #Article370 #SupremeCourt
— Live Law (@LiveLawIndia) August 29, 2023
Representing the Union Government, Solicitor General (SG) Tushar Mehta cited Union Home Minister Amit Shah’s Parliamentary remarks when he tabled the J&K Re-organisation Bill in 2019. The Solicitor General reiterated the government’s stated stance that the statehood of J&K would be reinstated in due course of time. However, he added that Ladakh will remain a UT.
When he asserted that the UT status of J&K is not permanent, CJI asked, “How impermanent is this? When are you going to have elections?”
Later during the proceedings, CJI said, “We understand that these are matters of national security. The preservation of the nation itself is the overriding concern. But without putting you in a bind, you (SG) and AG may seek instructions on the highest level – is there a time frame in view?”
CJI: The UT here is not intended to be a permanent territory?
— Live Law (@LiveLawIndia) August 29, 2023
SG: No!
CJI: How impermanent is this? When are you going to have elections?#Article370 #SupremeCourt
CJI added, “Equally, restoration of democracy is important.”
During his submissions, the Solicitor General reiterated that the process of restoring statehood was already in progress. He also shared steps taken to bring normalcy and stability to the region that are the precursor for restoring the statehood of J&K.
When the hearing resumed at 2 PM, the Solicitor General, after taking instructions from the Central government, informed the bench that the statehood of J&K would be restored, while Ladakh would be retained as a UT.
He said, “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: I have taken instructions. The instructions are that UT is not a permanent feature. But I will make a positive statement day after tomorrow. Ladakh will remain UT.#Article370 #SupremeCourt
— Live Law (@LiveLawIndia) August 29, 2023
He also submitted that except for police and public order, all other powers are there with J&K.
Larger Debate: Should the Parliament be not empowered to convert a state into UT for a specific time in lieu of National Security?
Meanwhile, during the course of the argument, the bench deliberated upon certain powers of the Union government. The bench pondered whether it was possible for the Union government to convert a state into a UT for a temporary period in lieu of national security.
Nonetheless, CJI clearly stated that when faced with such a situation, the Government had to make a statement before the Supreme Court outlining that the transition of a Union Territory (UT) back to a state had to take place.
Emphasising the need to prioritise national security above other issues, CJI said, “Can a union not do that (convert a state to UT) for a certain period, to bring stability? Because let’s face it, whether it’s a state or UT, all of us survive if a nation survives.”
CJI: Can a union not do that for a certain period, to bring stability? Because let's face it, whether it's a state or UT, all of us survive if a nation survives.#Article370 #SupremeCourt
— Live Law (@LiveLawIndia) August 29, 2023
The bench further contemplated should the court not permit Parliament to change the status of a state to a UT in the interest of the preservation of the nation itself, however, this has to be done by clearly stating that the statehood will be restored.
Regarding this, CJI said, “Should we not permit parliament to postulate that for a certain period, in the interest of the preservation of the nation itself, we want for a certain period that this particular state shall go in the fold of UT- on the clear understanding that this shall revert back to a state.”
CJI: Should we not permit parliament to postulate that for a certain period, in interest of the preservation of the nation itself, we want for a certain period that this particular state shall go in fold of UT- on the clear understanding that this shall revert back to a state.
— Live Law (@LiveLawIndia) August 29, 2023
However, CJI clearly maintained that it can’t be a UT permanently.
The constitutional bench further deliberated on the possible misuse of this power, if available or granted.
CJI asked, “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.”
In response, SG Mehta claimed that J&K was “one of a kind situation” and it will not arise with respect to other states.
However, Justice Kaul retorted and highlighted that there are other border states too that have problems.
He said, “It’s not one of its kind situations. We have seen the northern border of Punjab- very difficult times. Similarly, some states in North East. Tomorrow if there is a scenario that each of these states faces 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?”
In reply, SG cited the historical background of J&K and its proximity to Pakistan-occupied Kashmir. He also highlighted the positive development post the repeal of J&K’s special status by giving the example of local body elections.
The bench then deliberated whether the parliament has the power to convert an existing Indian state into a UT. If it does have that power, how does the court read Article 3?
The bench also asked what will be the nature of the exercise of that power, will it be permanent, or temporary?
