• The Supreme Court has sought a detailed response from the Centre on the restoration of statehood to Jammu and Kashmir.
• While hearing Zahoor Ahmed Bhat vs. UT of Jammu and Kashmir, the Court noted that some decisions must be taken by the government, as the judiciary lacks the full expertise to handle such political matters.
• Petitioners argue that the delay in restoring statehood is violating citizens’ rights and weakening the essential features of federalism, which form part of the basic structure of the Constitution

Mechanism of Creation of States In India

• There are three processes enshrined in the Constitution of India for creating States — admission, establishment and formation.
• Admission of a New State: For admission, a new State must have an organised political unit.
  • It is also required that admission through acquisition shall be guided by international law
  • Jammu and Kashmir was admitted into India in 1947 through the Instrument of Accession signed by Maharaja Hari Singh under the Indian Independence Act, 1947.
• Establishment of a State: For establishing a new State, territory shall be acquired as per the definition of acquisition in international law.
  • Example: India acquired Goa and Sikkim and established them as States.
• Formation of a State: The process of forming a new State is essentially the reorganisation of existing States. 
  • Article 3 of the Constitution provides for this process of reorganisation wherein Parliament may by law: 
    • Form a new State by Separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; 
    • Increase the area of any State; 
    • Diminish the area of any State; 
    • Alter the boundaries of any State; or 
    • Alter the name of any State. 
  • However, while the Union may diminish the area of a State, it cannot take it away by making it a Union Territory. 
  • This would be a step against the federal features of India. 
  • Therefore, it is mandatory for the Union to restore the statehood of Jammu and Kashmir. 

India’s Federal Design

• Union of States: India has been made a Union of States which means that it is indivisible and that States have no right to secede. 
  • This provision in Article 1 may be interpreted in the sense that the word ‘India’ reflects a unitary federation while the word ‘Bharat’ is a cultural connotation which signifies that India has a composite culture and that there is unity in diversity.
• Balancing Federal and Unitary Features: Although India has a two-tier governance system, the framers chose “Union” instead of “Federation” to keep the Centre strong enough to safeguard unity and integrity. 
  • At the same time, India’s federal character ensures an equitable distribution of resources to uphold its identity as a welfare state.
• Federalism as Part of Basic Structure: India’s federal design has been recognised as part of the Basic Structure Doctrine. 
  • Without federalism, the Union itself would lose legitimacy. 
  • To ensure continued state representation, Article 83(1) provides that the Rajya Sabha shall be a permanent House, immune from dissolution. 
    • Thus, restoration of Jammu and Kashmir’s statehood is imperative to preserve the federal balance.

Developments So Far

• On December 11, 2023, the Supreme Court upheld the abrogation of Articles 370 and 35A, while also directing the Union Government to restore statehood and hold Assembly elections.
• Elections to the 90-member Assembly were held in October 2024, but the Government has not taken any steps towards restoring statehood.
  

Concerns with Delayed Restoration

• Impact on Democratic Governance: The absence of statehood weakens the elected government in Jammu and Kashmir, leaving greater powers with the Lieutenant Governor and limiting democratic autonomy.
• Threat to Federal Features: Prolonged Union control over Jammu and Kashmir without restoring statehood is inconsistent with India’s constitutional design and erodes its federal character as well as the spirit of cooperative federalism.

Conclusion

Restoring Jammu and Kashmir’s statehood is not just a political promise but a constitutional necessity to uphold India’s federal structure. 

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