J&K Statehood Back in Focus: Supreme Court Hearing Set for August 8

The Supreme Court is all set to hear on August 8 an application seeking appropriate directions to the Union of India for restoration of the statehood of Jammu and Kashmir in a time-bound manner.

Senior Advocate Gopal Sankaranarayanan mentioned the application today before a CJI BR Gavai led bench seeking for the same to not be deleted from the list of cases. CJI agreed to the request.

This application has been filed in the writ petition titled “In re: Article 370 of the Constitution” which was decided by the Supreme Court in December 2023 upholding the government decision of abrogation of Article 370.

While upholding the abrogation of Article 370, the top court had ordered, "Restoration of statehood shall take place at the earliest and as soon as possible". Court had relied on the Solicitor General Tushar Mehta's statement that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh).

In view of the SG's statement, Court had not found it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir was permissible under Article 3.

Citing the said directions, the application states, "even after passing of 10 months of the order dated 11.12.2023, till date the status of statehood of Jammu and Kashmir has not yet been restored which is gravely affecting the rights of the citizens of Jammu and Kashmir and also violating the idea of federalism".

Court has been further told that this issue is of grave urgency and importance as Jammu and Kashmir held the Legislative elections in three phases to elect 90 members of the Jammu and Kashmir Legislative Assembly after a period of 10 years. "The results of the said elections are to be pronounced on 08.10.2024. It is submitted that the formation of the Legislative Assembly before the restoration of Statehood would cause serious reduction of democratically elected government in Jammu and Kashmir causing grave violation of the idea of federalism which forms part of the basic structure of the Constitution of India....", the court has been told.

Filed by Zahoor Ahmad Bhat, one of the Petitioners in the original petition, the application submits non-restoration of the status of Statehood of Jammu and Kashmir in a time-bound manner violates the idea of federalism which forms a part of the basic structure of the Constitution of India. "Jammu and Kashmir being an individual state having gone through many struggles and hardships require a strong federal structure to help in developing the area and also celebrating its unique culture", the plea adds.

In a historic verdict, the Supreme Court of India had in 2023 upheld the abrogation of Article 370 of the Constitution of India which accorded "special status" to the erstwhile state of Jammu and Kashmir. Court held Article 370 to be a temporary provision enacted introduced to serve a transitional purpose considering the war conditions in the state of Jammu and Kashmir.

In the 476-page judgment, the Constitution Bench also upheld the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State.

"This Court is alive to the security concerns in the territory. Direct elections to the Legislative Assemblies which is one of the paramount features of representative democracy in India cannot be put on hold until statehood is restored", the five-judge Constitution Bench had further said.

Furthermore, the question of whether Parliament can extinguish the character of statehood by converting a State into one or more Union Territories in exercise of power under Article 3 has been left open, which in an appropriate case, the Supreme Court has said that it would construe the scope of powers under Article 3 in light of the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy.

Notably, the court had also recommended the setting up of a commission to investigate and report on the violation of human rights in Jammu & Kashmir since the 1980s.

Case Title: IN RE ARTICLE 370 OF THE CONSTITUTION AND IN THE MATTER OF (APPLICATION): ZAHOOR AHMAD BHAT AND ANR. vs. UNION OF INDIA

Bench: CJI and Justice Vinod Chandran