A challenge mounted in court on abrogation of Article 370 of the Constitution can be based only on alleged Constitutional violations and not on the intention or wisdom of the government in making the move, the Supreme Court said on Thursday, reports Bar and Bench. A Constitution Bench of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant made the observation in response to submissions by Senior Advocate Dushyant Dave, appearing for the petitioners.
Dave argued that Article 370 could not have been 'repealed' using Article 370(3). Justice Kaul then remarked, "It exists in the statute of the Constitution...there is no repeal. Now as it stands, all provisions of the Constitution will apply to J&K." CJI Chandrachud then opined that the intention or wisdom behind the abrogation could not be challenged in court.
"You want judicial review to assess the intention of the government to abrogate Article 370? Judicial review will be for the constitutional violation. There is no doubt that if there is such violation, this court will intervene. But, are you asking us to use judicially review the wisdom underlying the decision to abrogate Article 370?"
Dave replied that he was pressing the point of the 'fraud' committed on the Constitution through the removal of the special status for the erstwhile State of Jammu & Kashmir. He emphasized that the exercise of the power by the President or Parliament has to be done under the Constitution itself and in a constitutional sense. During the hearing, he referred to his written submissions where the election manifesto of BJP has been quoted. “In that, they expressly said that they will work towards abrogation of Article 370 … these manifestos cannot be contrary to the constitutional scheme. In 2015, EC issued guidelines that all manifestos must be within constitutional scheme and spirit,” Dave told the 5-judge Constitution Bench.
"False narrative built"
He argued that Article 370 was abrogated to gain political weightage by the ruling party at the Centre. “You have not done it for any purpose. These arguments of impeding growth, etc., are not relevant at all. It doesn’t exist. The only reason you have done it, is because you told people of India to vote for you as I will go and abrogate Article 370,” he said, adding that power has been exercised for colourable considerations based on “irrelevant considerations”. Dave contended that there is no power to abrogate Article 370 under Article 370(3).
“It has lived its purpose and its object. It is no longer available for exercise,” he added. He said that a false narrative has been built that Jammu and Kashmir is not part of India due to Article 370 of the Constitution, adding that it has always been an integral part of India. Dave repeatedly argued that the procedure adhered by the Centre to nullify Article 370 amounted to “fraud” and termed the exercise of power by Parliament as “colourable”.
CJI posed a series of questions
The CJI then posed a series of questions. "If (Article) 370 has served its purpose after the Constituent Assembly comes to an end, why were constitutional orders made applicable post 1957? The fact that 370 served its purpose is belied by consequent constitutional orders made applicable thereafter. So 370 continued to be in existence...Constitutional amendments happened and went on happening till 2019. If you are saying that 370(1) continues to exist, then you cannot say 370(3) ceases to exist. Either everything remains together or everything perishes together."
Dave then argued that the abrogation could only have been brought about by a constitutional amendment. He emphasised that constitutional history cannot be re-written, and there were no powers to abrogate. The hearing will continue on August 22, Tuesday.
