Petition on nomination of 5 MLAs listed in J&K HC
Jammu, Aug 13: The Supreme Court is all set to hear a plea on Thursday for the restoration of statehood to Jammu and Kashmir, twenty months after the apex court had ordered for its restoration ‘at the earliest’.
A bench of Chief Justice of India B R Gavai and Justice K Vinod Chandran is likely to hear the matter, according to the causelist.
On December 11, 2023, the Supreme Court unanimously upheld the revocation of Article 370, even as it ordered that assembly elections be held in Jammu and Kashmir by September 2024 and its statehood be restored “at the earliest”.
Last year, a plea was filed in the top court seeking directions to the Centre for the restoration of statehood to Jammu and Kashmir within two months.
The application was filed by Zahoor Ahmad Bhat, an academician, and Khurshaid Ahmad Malik, a socio-political activist.
“It is submitted that the delay in the restoration of statehood would cause serious reduction of democratically elected government in Jammu and Kashmir, causing a grave violation of the idea of federalism which forms part of the basic structure of the Constitution of India,” the application said.
The assembly elections and the Lok Sabha polls were conducted peacefully in Jammu and Kashmir without any incident of violence, disturbance or any security concerns being reported, it said.
“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 plea said.
The non-restoration of the status of statehood of Jammu and Kashmir, the plea said, would result in a lesser form of elected democratic government to the state, particularly given legislative assembly results were declared on October 8, 2024.
Despite the apex court’s directions for the restoration of statehood to Jammu and Kashmir “at the earliest and as soon as possible”, no steps have been taken by the Centre to provide any timeline for the implementation of such directions, it claimed.
“Jammu and Kashmir is being operated as a Union Territory for a period of almost five years now, which has caused many impediments and grave losses to the development of Jammu and Kashmir and has affected the democratic rights of its citizens,” the plea added.
In its December 2023 verdict, the apex court held that Article 370, which was incorporated in the Indian Constitution in 1949 to grant special status to Jammu and Kashmir, was a temporary provision. The President of India was empowered to revoke the measure in the absence of the Constituent Assembly of the erstwhile state whose term expired in 1957, the court said.
Meanwhile, another petition challenging nomination of five MLAs to the Jammu and Kashmir Legislative Assembly by Lieutenant Governor is also listed for hearing before the J&K High Court on Thursday.
It may be mentioned that the Ministry of Home Affairs has informed Jammu & Kashmir High Court that nomination of five MLAs of Jammu & Kashmir Assembly falls outside the purview of the elected government and is to be made by the Lieutenant Governor without aid and advice of the council of ministers.
“Sections 15, 15A and 15B all recognize the power and authority of the Lieutenant Governor to make a nomination to the Legislative Assembly. Accordingly, there can be no manner of doubt that it is the Lieutenant Governor who has to exercise this statutory duty in his discretion, as a statutory functionary and not as an extension of the government, thus, without aid and advice,” reads the affidavit filed by MHA through Vishal Sharma, Deputy Solicitor General of India.
While Section 15 of the Reorganisation Act empowers the Lieutenant Governor to nominate two women to the Assembly if he feels that they are not adequately represented, Sections 15A and 15B confer upon him the authority to nominate two Kashmiri migrants and one Pakistan-occupied Jammu & Kashmir (PoJK) refugee, respectively.
