The Supreme Court on Thursday clarified that the development works undertaken by the Centre in Jammu and Kashmir post August 2019 will not be relevant in deciding the constitutional challenge against abrogation of Article 370.
The Constitution Bench, headed by CJI D.Y. Chandrachud remarked that the roadmap, given by the Union government, on restoration of statehood of J&K and holding of elections, cannot be an answer to the constitutional challenge and it has to be dealt “independently”.
“The nature of development work taken place post August 2019 may not be relevant to the constitutional challenge …. (and) cannot be an answer to the constitutional challenge …. These facts would possibly have no bearing on the constitutional issue,” the CJI observed.
On the 13th day of hearing, the Centre told the Supreme Court that it cannot give any fixed timeline for restoration of statehood in J&K and the Union government is ready for elections at any time in the valley.
At the outset, Solicitor General Tushar Mehta argued that the region is continuously progressing by citing different figures and apprised that in the previous year around 1.88 crore tourists visited J&K and the one crore mark has been crossed till date for year 2023.
Mehta said that on comparing the present situation with 2018, terrorists initiated instances are reduced by 45.2 per cent, infiltration has been reduced by 90.2 per cent, stone pelting reduced by 97.2 per cent, and security persons casualties reduced by 65.9 per cent.
“These are factors which agencies would take into consideration… In 2018, stone pelting was 1,767 and it is nil now and calls of organised bandhs (protests) by secessionist forces were 52 and now it is nil,” he said.
Senior advocate Kapil Sibal, appearing on a petitioner’s behalf, asked whether the Constitution Bench will take into account the facts presented by the government because as per him they were extremely “irrelevant”.
He countered the figures given by the government, saying that they “will go into the mind of the court” and “trying to show as to how this enormous change (revocation of Article 370) has taken place for the benefit of the people of J&K”.
“If you have 5,000 people under house arrest and Section 144 throughout the state, there cannot be no bandhs (protests),” said Sibal, adding that such facts are not “necessary” or “relevant” in adjudicating upon the constitutional reference.
“Today, the kind of drugs that are happening with the youths in J&K is unbelievable. I don’t want to enter that part. Those facts are not relevant for the purposes of the court,” he said.
Sibal contended that live-streaming of proceedings brings facts given by the government on the record. “They are part of the public space and people feel what a great thing has been done by the government. This creates a problem,” he said.
At this, SG Mehta interjected saying that “progress never creates a problem”.
He continued: “On the lighter side, there were some people under house arrest and therefore, there was no bandhs. That means the right people were in house arrest.”
The remarks made by the second highest law officer of the country fuelled Sibal.
“Let’s not make a mockery of democracy. 5,000 people were under house arrest and Section 144 throughout the state. This court in a judgement has recognised that. The Internet was shut down and then how could there be bandhs when people can’t even go to hospital. Let’s not go into all this,” he said.
The high-intensity argument cooled off with the intervention from the Constitution Bench, which said that the “constitutional challenge will be considered on constitutional grounds and not on the basis of the policy decisions”.
Earlier in the day, the Central government told the Supreme Court that it cannot give any exact timeframe and it would take “some time” for restoration of statehood in Jammu and Kashmir while reiterating that the Union Territory status is “temporary”.
Mehta reiterated that the Union Home Minister Amit Shah had already made a statement on the floor of Parliament that after the situation returns to normalcy in Jammu and Kashmir, it would become a state again.
He said that the Union government is ready for elections at any time and call for polls will be taken by the State Election Commission and the Election Commission of India.
On Tuesday, the Constitution Bench asked the Attorney General and Solicitor General to seek instructions from the Central government over the timeframe to restore statehood of the erstwhile state of Jammu and Kashmir. That day, the Centre said that the “Union Territory is not a permanent feature” and it will make a positive statement on August 31 before the court regarding Jammu and Kashmir.
During the hearing, the top court had stressed that the erstwhile state cannot be a “Union Territory in permanence”, adding that the restoration of democracy was very important.
In relation to Ladakh, Mehta had said that it would continue to remain a Union Territory.
A 5-judge Constitution Bench is hearing a clutch of petitions challenging the 2019 Presidential Order taking away the special status accorded to the erstwhile state of Jammu and Kashmir and its bifurcation into two Union Territories.