SC wants Centre to tell when electoral democracy will be restored in J&K
Reorganisation of State can be done in national security
The five-Judge Constitution
bench of the Supreme Court,
hearing a clutch of petitions
challenging the abrogation of
Article 370, asked the Centre
for the first time today to specify
a time frame for restoration
of electoral democracy in the
erstwhile State of Jammu and
Kashmir, saying the present
arrangement “has to come to
an end”.
Solicitor General Tushar
Mehta, representing the Centre,
told the bench the Union
Territory status of Jammu and
Kashmir is not a “permanent
thing” and that the government
will make an elaborate statement
on the vexatious political issue in
the court on August 31.
The bench, headed by Chief
Justice D Y Chandradhud, which
was hearing Mehta’s submissions
defending the Centre’s
decision to do away with the special
status of the former state and
its reorganisation, said,
“Democracy is important,
although we agree that in view of
the national security scenario,
reorganisation of the state can be
done.”
The court said lack of electoral
democracy cannot be
allowed to go on indefinitely.
“This has to come an end…
Give us the specific time frame
as to when will you restore actual
democracy. We want to record
this,” the bench said, and asked
Mehta and Attorney General R
Venkataramani to seek instructions
from the political executive
and get back to the court.
“I have taken instructions
and the instructions are that the
UT status for Jammu and
Kashmir is not a permanent
thing. It will remain for Ladakh.
However, I will make an elaborate
statement on August 31,”
Mehta told the bench, also comprising
Justices Sanjay Kishan
Kaul, Sanjiv Khanna, BR Gavai
and Surya Kant.
He read out from the statement
Home Minister Amit Shah
had made while tabling the
Jammu and Kashmir
Reorganisation Bill in 2019 saying
J&K’s statehood will be
restored in due course of time.
As the hearing on the hugely
contentious issue continued for
the 12th day, the apex court
wanted to know from the government’s
law officers was the
abrogation of Article 370 “really
a logical step” to achieve J-K’s
complete integration with India.
“The wide chasm between
absolute autonomy, as it existed
on January 26, 1950, and
complete integration, as it was
brought on August 5, 2019…
That chasm has been substantially
bridged by what was
happening in between. So,
really, in the sense it was not a
complete migration from
absolute autonomy to absolute
integration.
“It is obvious that a substantial
degree of integration has
already taken place in the last 69
years. Therefore, what was done
in 2019 was it really a logical
step forward to achieve that integration?”
the bench asked
Attorney General R
Venkataramani.
The top court also questioned the Centre about the validity of its
decision to divide the erstwhile state
into two Union Territories, saying
the petitioners who have challenged
its decision contended it was beyond
the powers of Parliament.
Mehta said Jammu and Kashmir
was divided into two Union
Territories looking at its peculiar situation
and the fact that being a border
State the matter also involved
national security.
The CJI while referring to creation
of Chandigarh as UT said, “So,
you make them as Union Territories,
but at a later point of time when the
situation stabilises, the union territories
are made into a state. We understand
that these are matters of
national security and the preservation
of the nation itself is the overriding
concern. Equally, restoration of
democracy is also important.”
“Can the Union not have control
over a stipulated period to bring stability?
Whether it is a state or UT, if
all of us survive, then the nation survives.
Of course, if the nation survives,
then only we survive, else
everything is gone. Then should we
not give that much leeway to
Parliament that for some period a
State is made into a UT and then,
after a period, it becomes a state,” he
said.
The bench also questioned the
attorney general as to how proviso 3
to Article 370 can be given a go-by
while abrogating the provision.
Article 370 (3) says,
“Notwithstanding anything in the
foregoing provisions of this article,
the President may, by public notification,
declare that this article shall
cease to be operative or shall be
operative only with such exceptions
and modifications and from such
date as he may specify: Provided
that the recommendation of the
Constituent Assembly of the State
referred to in clause ( 2 ) shall be
necessary before the President issues
such a notification.”
The CJI contended that Article
370 says the recommendation of
the constituent assembly shall be
“necessary” and “before” the
President issues a notification, and
so it cannot be a post facto recommendation.
“There has to be a recommendation
of constituent assembly and,
secondly, it has to be before the president
decides to abrogate the provision.
Therefore, to say this recommendation
is just an opinion and not
binding is not correct,” the bench
said.
Venkataramani submitted it is
just a recommendation and a recommendatory
role was assigned to the
constituent assembly of Jammu and
Kashmir to ensure that the integration
process was completed.
“So what is the sequitur (a logical
conclusion)? Are you contending
that this is purely recommendatory
and therefore absence of recommendation
(of the constituent assembly)
does not make a difference? Is this
your contention?” the CJI asked.
Mehta, intervened and said,
“APresident of India being bound
by a body solely outside the
Constitution of India (the J-K
Constituent Assembly) may not
perhaps be the correct interpretation
of our Constitution. That is, if
it says yes, the President can do it,
and if it says no, the President cannot
do it. The Constitution of
Jammu and Kashmir is outside
and beyond our Constitution of
India”.
However, the bench disagreed
with Mehta’s contention and said
from the plain reading of Article
370, it appears that the Constituent
Assembly of Jammu and Kashmir
was given overriding powers in
respect of the State Government, as
the matters were to be placed before
the CA for approval, if concurrence
or consultation had been obtained
before it came into existence.
Justice Khanna said, “When
Article 370 itself refers to
Constituent Assembly, you cannot
say that it is outside the Constitution
of India. It is within the
Constitutional framework because it
refers to it. Yes, your argument about
what will happen once Constituent
Assembly does not exist, is something
which we will have to examine
with regard to the procedure you
have adopted.”
The hearing remained inconclusive
and will resume on Thursday.
Several petitions challenging the
abrogation of the provisions of
Article 370 and the Jammu and
Kashmir Reorganisation Act, 2019,
which split the erstwhile State into
two Union Territories – Jammu and
Kashmir, and Ladakh – were
referred to a Constitution bench in
2019. (PTI)