Srinagar– The Supreme Court on Thursday said that it will only examine whether there was any violation of the Constitution when the Central Government abrogated Article 370 in Jammu and Kashmir and will not go into the issue of whether the move was in the national interest as maintained by the government.
Chief Justice of India DY Chandrachud on the seventh day of the hearing in the case on Thursday said this while hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution.
“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 a violation this court will intervene, but are you asking us to judicially review the wisdom underlying the decision to abrogate 370?”, CJI Chandrachud told Senior Advocate Dushyant Dave.
Dave in his submissions said “You can’t resort to some kind of executive power, authorise the President to do this, do away with everything that Article 3 provides in the garb of 356 power. It makes a mockery of the constitutional safeguards. We know what majorities can do. We all saw what happened in 1975. If they don’t do it in letter and spirit, your lords can strike it down and you must.”
He said 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”.
On this, the CJI said, “If 370 has served its purpose after the constituent assembly comes to an end, why were constitutional orders made applicable post 1957? But the fact that 370 served its purpose is belied by consequent constitutional orders made applicable thereafter, so 370 continued to be in existence.”
The CJI further added, “If your submission is right qua clause 3, then once the constituent assembly completed its task in 1957 there cannot be any constitutional amendments at all, which is thus belied by the constitutional practice itself. 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. We are talking about a practice being followed for 64 years.”
A Constitution Bench of the Supreme Court headed by Chief Justice of India D.Y. Chandrachud has been hearing a batch of pleas challenging the abrogation of Article 370 of the Constitution from August 2.
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