SC asks when democracy will be restored in J&K; Centre to reply on Aug 31

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 on Tuesday (August 29) to specify a timeframe for the 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.

“This has to end”

The Bench, headed by Chief Justice DY 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, asking 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 made by Home Minister Amit Shah while tabling the Jammu and Kashmir Reorganisation Bill in 2019, saying J&K’s statehood will be restored in due course of time.

Was abrogation logical step?

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 whether the abrogation of Article 370 was “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.

Was division valid?

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.”

He added, “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.”

On Proviso 3 to Article 370

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 the 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.

SG’s contention

Mehta, intervened and said, “A President 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.