New Delhi- Senior advocate Dushyant Dave on Thursday argued that the BJP could not “abuse their majority in Parliament” to abrogate Article 370 contrary to the Constitution to fulfil an “unconstitutional promise” made in the party manifesto.
On day seven of the hearing of a batch of petitions challenging the abrogation of Article 370 of the Constitution, which conferred special status on the erstwhile state of Jammu and Kashmir, senior advocate told the apex court that the exercise of abrogating Article 370 suffers from “fraud” on the Constitution and was done “completely contrary” to the provisions of the Constitution.
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. “In my sense, constitutional sense or constitutional provisions prohibited both — the President and Parliament — from touching Article 370(3) in any manner to abrogate it,” Dave argued.
During the hearing, he referred to his written submissions where the election manifesto of Bharatiya Janata Party 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.
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”.
A Constitution Bench comprising Chief Justice of India DY Chandrachud and Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant is hearing the case. Senior advocates Kapil Sibal, Gopal Subramanium and Zaffar Ahmed Shah have completed their arguments on behalf of the petitioners.
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