Is there a time frame to grant statehood to J&K… When will elections be held, SC asks Centre

Mehta told the bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant, that he will take instructions. He said he will show the statement made by the Union Home Minister on the floor of the House and the efforts being made to restore normalcy in J&K.

“I will show the statement made on the floor and the efforts made. And the statement is once the efforts are fruitful and everything is normal, then… after the situation returns to normalcy, we want it to be a state again,” he said.

After taking instructions, Mehta said, “Instructions are that UT is not a permanent feature. I will make a positive statement the day after because the learned AG and I will meet personally and make a statement… Ladakh will remain a UT.”

During the discussion on Parliament’s power to carve out UTs, the CJI, referring to Mehta’s remark that J&K’s UT status is not meant to be permanent, asked, “How impermanent is it? When are you going to have elections?”.

Although the SG did not give a time frame, he said, “I will show the steps (being) taken to reach that stage.”

The CJI, who emphasised that preservation of the nation was important, also posed the question why Parliament should not be allowed to create a UT out of a state to meet national security challenges, with the promise of returning it to a state within a time limit.

Delving into the history of creation of states like Manipur, Mizoram etc, the CJI said, “The creation of UTs… you have, on one hand, examples like Chandigarh, carved out of Punjab… It was part of a state and became a UT… Then you have progression where certain areas of existing states became UTs… For example, Mizoram, Manipur, Tripura… They became UTs… in the process of making them a stable administration to become states. You cannot immediately make them states.”

“Parliament can certainly make that – Today the situation is not ripe to make them full-fledged states, today we will carve them out, give them the status of UT. At a future point of time, when Parliament feels that they are now sufficiently stable institutionally, we will make them states which we did in the North-East,” he said.

The CJI wondered why the same formula cannot be applied to bring stability to a state.

“Why is it not possible for the Union to say that right now in the case of a state, we have such an extreme situation in terms of national security, that we want, for a certain stipulated period, that a UT should be created. But this is not a permanent feature, this shall then again progress to its position as a state. Can the Union not have control for a certain stipulated period to bring stability? Because let’s face it, whether it’s a state or UT, all of us survive if the nation survives. If the nation itself doesn’t survive, there is no relevance of state or UT,” he said.

“Should we not give that allowance to Parliament to postulate that for a certain period, in the interest of the preservation of the nation itself, in the interest of preservation of the Union itself, we want, for a certain stipulated period, that this particular state should go in the fold of UT – on the clear understanding that this shall revert to a position of a state over a period of time… In a given case, it may be 6 months, 1 year?” he said.

He said the progression back to a state has to happen. “The government also has to make a statement before us that the progression back to a state has to take place. It can’t be a UT permanently,” the CJI said.

Mehta said, “That’s exactly the statement made on the floor of Parliament by the Union Home Minister”.

The CJI said, “Equally, restoration of democracy is very important. It is a vital component of our nation.”

Mehta referred to the local body elections in J&K and said “there are now 34,000 elected people”. He said all this was possible only due to what the government had done in 2019 – the Article 370 move.

“We take your point that the progression has already begun,” the CJI said, and then asked “is there a roadmap?”.

The bench also questioned the government, which cited J&K’s border status, on how it distinguished between J&K and other border states to apply reorganisation.

The query came when Mehta said J&K is “one of a kind case. If Gujarat or MP was to be bifurcated, the parameters would be different. But in J&K, considering its strategic importance, border state, history of terrorism, history of infiltration, history of outside influence, there would be several considerations in the mind of the government. We share borders with at least four countries, all of which may not be friendly, to put it mildly”.

Justice Kaul told him, “Arguments based on border states are a problem. We have many states on the border.”

Mehta said history too was taken into account. “How the situation in Kashmir is developing, the number of deaths of civilians, the number of deaths of security forces, the number of attacks, the number of stone-pelting, every week two or three days of hartals, paralysing schools, hospitals, banks, business houses, everything. All these are policy considerations,” he said.

“Whenever a state reorganisation takes place, not only are there policy considerations as to why the state needs to be reorganised, but also a blueprint as to what the Central government will do after the state is reorganised. How to bring… in this case, the youth into the mainstream? How to ensure that they are gainfully employed, how to float certain schemes so that people on the border, who are continuously facing shelling etc, are now getting the confidence that the government has not left us… There are several considerations… We will have to start with democratic local self-governance, so people participate in the internal institutions for their own good,” Mehta said .

The CJI asked that since the source of the power with the Union of India to reorganise is the same, “once you concede that power to the Union, in relation to every Indian state, … how do you ensure then that this power will not be misused?”

When Mehta reiterated that J&K is a “one of its kind situation which is not going to arise (in the case of other states)”, Justice Kaul said, “It’s not one of its kind situation. We have seen the northern border… Punjab, very difficult times. Similarly, some states at different times in the North-East… You can’t choose our neighbours, as they say… So the worry is that tomorrow, if there is a scenario that each of these states face this problem…. I have understood your argument that these border states are a category by themselves.”

He asked the SG, “How do you distinguish between J&K and other border states?”.
Mehta said he is “not saying J&K has to be treated differently because it is a border state… The consistent repeated situation which we have been facing for decades on a daily basis is not happening in Gujarat or the North-East or any other border state. Here is a border state where one of our territories is occupied by Pakistan. I have given figures of deaths taking place every year. This is a problem faced by the nation for decades which we are trying to sort out or deal with… These decisions are never taken as knee-jerk reactions. There are always policy considerations”.