Chief Justice of India DY Chandrachud on Tuesday gave the Centre leeway to claim it had converted Jammu and Kashmir into a Union Territory for a “stipulated period” in order to protect national security, but pushed the government to commit to a time frame by which it will be restored to a full-fledged State.

The Centre said the Union Territory status of Jammu and Kashmir was not a permanent feature. “We will make a positive statement the day after tomorrow (August 31) on Jammu and Kashmir. Ladakh will, however, remain a Union Territory,” Solicitor General Tushar Mehta informed the court in the post-lunch session of the hearing.

He said elections in Ladakh would be over in September 2023.

During the morning session of the hearing, the Chief Justice had asked the Solicitor General, and Attorney General R Venkataramani, to secure instructions from the government on the period of time within which Jammu and Kashmir would return to being a State.

“We do not want to bind you… We understand there are matters of national security involved… We know that preservation of the nation is the overriding concern… So, without putting you (the Solicitor General) or the Attorney General in a bind, can you seek instructions on whether there is some time frame? The government has to make a statement before us that the progression back to Statehood will take place within a time… That this is not a Union Territory permanently,” Chief Justice Chandrachud had told the Centre.

Restoring democracy

The Chief Justice had reminded the Centre that the “restoration of democracy is a vital component for our nation”.

The Chief Justice had offered the “national security” line to the government amidst a barrage of questions from the Constitution Bench on whether Parliament has the power to carve existing and functional border States into Union Territories.

“You [the Union Government] can argue that right now we have an extreme situation in terms of national security and we want, for a stipulated period, a Union Territory to be created. You can say the creation of the Union Territory is not a feature of permanence, but it (Jammu and Kashmir) will progress back to its position of a State,” Chief Justice Chandrachud suggested to Mehta.

Mehta agreed that this was “exactly what the government had said in Parliament from day one”. “Jammu and Kashmir will return to being a State after return to normalcy,” he assured.

“You can say the Union of India wanted to have control for a certain period… After all, whether a Union Territory or a State, all of us will survive if the nation survives. If the nation does not survive, there is no relevance whether it is a State or a Union Territory… Should we not give that allowance to Parliament to postulate that for a certain period, for the preservation of the Union itself, this particular State should go into the fold of a Union Territory on the clear understanding that it will revert to Statehood over a period of time?” the Chief Justice posed.

In the hearing, Mehta affirmed that Jammu and Kashmir was seeing better days after the abrogation of Article 370 in August 2019. He said the erstwhile State had been plagued by incidents of terrorism, infiltration, pelting of stones, hartals, etc, before. Post-abrogation, local elections had been held. “Democracy has seeped into the grassroots in Jammu and Kashmir,” Mehta said.

“The government has a blueprint working,” he added.

“But that means normalcy has been restored in Jammu and Kashmir. So is it not time to return Jammu and Kashmir to Statehood?” senior advocate Kapil Sibal intervened to ask the court.

The court also voiced its apprehensions about the source of Parliament’s power to transform States to Union Territories even as Mehta said the case of Jammu and Kashmir, which has seen violence and cross border terrorism for decades, was “one of its kind”.

“Once you concede that Union of India has the power to reorganise any State, how do you address the apprehensions States feel about this power of yours? How do you ensure that this power may not be used on every State?” Chief Justice Chandrachud asked the Solicitor General.

Justice Sanjay Kishan Kaul said there was a “problem” with the Centre’s argument that Jammu and Kashmir was one of its kind. He pointed to Punjab, another border State which saw violence, and the northeastern States.

“One of the northeastern States is facing violence right now,” Justice BR Gavai said, referring to Manipur.

Border States

Mehta said the nation has borders with four countries, and not all of them are friendly.

“We cannot choose our neighbours. What the Chief Justice apprehends is would you go ahead and reorganise any of these States when you see trouble?… You cannot say that just because it is a border State, it has to be treated differently,” Justice Kaul observed.

Chief Justice Chandrachud said Himachal Pradesh and Uttarakhand were also border States.

Justice Kaul said Parliament under Article 3 could carve out a Union Territory from a State. But could Parliament convert an entire State into a Union Territory or portion out a part of the State as a Union Territory — Ladakh — and declare the remnant — Jammu and Kashmir — as another Union Territory, Justice Kaul asked.

Justice Sanjiv Khanna questioned whether by suspending the consultation process with the Jammu and Kashmir State Assembly before reorganising the State, the Centre had virtually taken away the role of the State government in decision-making process.

The Solicitor General quoted from a Supreme Court judgment that “India is an indestructible union of destructible units”. “What we have said from day one is that we have created two units, two Union Territories, one with a Legislature and everything else that a State has except that the police powers are with the Centre because of the peculiar situation in Jammu and Kashmir,” Mehta said.