Jammu and Kashmir is not one-of-a-kind and Punjab and the Northeast have faced similar situations, the Supreme Court pointed out today, questioning the need for bifurcation of the border state in August 2019.
Chief Justice of India DY Chandrachud also questioned how to ensure that the power to bifurcate a state will not be "misused" once it is conceded to the Central government -- a point that led to a discussion on why the question of bifurcation could not have been settled by parliament.
During Day 12 of the hearing of a bunch of petitions challenging the scrapping of Article 370, the Centre had argued that Jammu and Kashmir was one of a kind.
"If Gujarat or Madhya Pradesh were to be bifurcated, then parameters would be different," said Solicitor General Tushar Mehta.
Justice SK Kaul, who was part of the five-judge constitutional bench led by Justice Chandrachud, pointed out that the country has many states with borders.
When Mr Mehta responded that all the neighbouring countries are "not friendly" and there is a need to mainstream Jammu and Kashmir in view of its history and current situation -- "stone pelting, strikes, deaths and terror attacks" -- the Chief Justice weighed in.
"Once you concede that power to the Union in relation to every Indian state, how do you ensure that the kind of abuse they apprehended -- this power will not be misused?" he said.
"It is not one of a kind situation," added Justice Kaul. "We have seen the northern border Punjab -- very difficult times. Similarly, some states in the northeast... Tomorrow if there is a scenario that each of these states face this problem...," he added.
"Does parliament have the power to convert an existing Indian state into a Union Territory?" questioned Chief Justice Chandrachud.
The court also said that even if the role of the Constituent Assembly only had a recommendatory role regarding Article 370 -- which gave Jammu and Kashmir its special status - that does not mean it can be overridden by the President of India. In an earlier hearing, the court had said the government will have to justify procedure it adopted to scrap the Article 370, as it could not assume that "end justifies the means".
