'Ground Realities Have To Be Seen; Can't Ignore Pahalgam Attack' : Supreme Court On Plea For J&K Statehood Restoration

The Supreme Court today (August 14), while hearing the plea seeking directions for restoration of Statehood in Jammu & Kashmir, verbally observed that it was crucial to consider ground realities in the region and one cannot ignore the instances such as the recent Pahalgam terrorist attack.

The bench of CJI BR Gavai and Justice K Vinod Chandran was hearing the application seeking directions to the Union Government to restore the statehood of the Union Territory of Jammu and Kashmir.

Sr Advocate Gopal Sankarnarayanan, appearing for the applicant and college teacher Zahoor Ahmed Bhat, stressed that "It has been 21 months since that judgment(Article 370 case), there has been no movement partly because, mylords fairly trusted the Union when they made this statement before the Court that they will implement the statehood."

The application has been filed as a Miscellaneous Application in the disposed of matter "In Re: Article 370 of the Constitution" in which the Supreme Court upheld the abrogation of the special status of Jammu and Kashmir.

In that judgment, the Court did not address the issue of the constitutionality of the Jammu and Kashmir Reorganisation Act 2019, which converted J&K into a Union Territory, in view of the assurance given by the Solicitor General that the Statehood will be restored. The Court merely directed, "Restoration of statehood shall take place at the earliest and as soon as possible", without setting any timeline. 

Gopal S highlighted that as per the decision in In Re Article 370, the court observed that statehood be restored as soon as possible after elections in J&K. The directions in the judgment state : 

m. The Solicitor General stated 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 statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, we uphold 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; and

n. We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible. 

The counsel for the former Chief Secretary of J&K who was an interlocutory in the Article 370 issue stated that they support the present plea and will also be filing their petition in this regard. 

SG Tushar Mehta for the Union submitted that the present application is not maintainable. In the past too, the Court has imposed costs on such pleas seeking restoration of statehood, he added.

"Elections are held, my lords are aware of the peculiar position emerging from this part of the country; there are several considerations gone into decision-making," SG said.

Another counsel interjected to highlight that "reality of the assurance is also important", underlining the need to practically implement the assurance by the Union. 

The CJI weighed in to add, "You also have to take into consideration the ground realities; you cannot ignore what has happened in Pahalgam."

The Counsels seeking restoration urged that a separate bench be created to consider this issue and hear all the applications and petitions together. 

Sr Adv Menaka Guruswamy also appeared for Irfan Lone, another applicant. 

The Court has now listed the matter after 8 weeks. The CJI also said, "Let them file the response, immediately after 8 weeks." 

Why Is Restoration Of Statehood To J&K Being Sought?

The applicants, college teacher Zahoor Ahmed Bhat and activist Khurshaid Ahmad Malik, stated that despite the assurance given by the Solicitor General that J&K's statehood will be restored, the Union has not taken any steps in that regard in the last eleven months after the judgment in the Article 370 case.

The Non-restoration of J&K's statehood violates the basic feature of federalism, contended the applicants. "The 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," they said.

The applicants said that the Assembly elections were held peacefully and it shows that there is no impediment in restoring statehood. "Therefore, there is no impediment of security concerns, violence or any other disturbances which would hinder or prevent the grant/restoration of the status of Statehood to Jammu and Kashmir as had been assured by the Union of India in the present proceedings," the application stated.

The petition has been filed by AoR Soayib Qureshi

Case Details : ZAHOOR AHMAD BHAT AND ANR. Versus UNION OF INDIA MA 2259/2024 and connected matter

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