Appearing on behalf of petitioners challenging the abrogation of Article 370, senior counsel Dushyant Dave said, "The article is not just a letter. It's the feelings of people of J&K."
“You want the 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 judicially review the wisdom underlying the decision to abrogate Article 370?”
- CJI D Y Chandrachud asked on Thursday, Aug 17, during Constitution Bench hearing the series of petitions on abrogation of Article 370. The remarks can be setback to the pro-Article 370 brigade who has been constantly trying to link government's political intention (vide election manifesto promise) to the ultimate decision of Aug 5, 2019 that led to the abrogation of the article that gave a special status to Jammu and Kashmir - India's only Muslim majority province.
Senior Advocate Dushyant Dave said that President's Rule under Article 356 imposed in Jammu and Kashmir was in its nature "temporary" and thus permanent actions like abrogating an article could not be taken under it.
Questioning political rationale of the BJP, he said, You suddenly withdraw the support from that (Mehbooba) government. Then you persuade the President to issue a 356 order.
Then you persuade President to issue a dissolution of assembly. Parliament takes controls over executive and legislative functions. Then you say President will exercise all powers into one. Then you pass orders under 370. What more classic example of abuse of power than this?"
However, Chief Justice's remarks makes it clear that a distinction has to made between political intent of the government or Parliament or Constitutional validity. CJI Chandrachud maintained the Constitutional Bench will only review the Constitutional validity.
Dismissing counsel Dave's various arguments, CJI maintained, "Your whole argument is that 370 has worked itself out. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the constitution in relation to J&K".
"This means that Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate that Art 370 achieved its life."
He further said, "Your (Dave's) submission is that once Constituent Assembly made its decision, there was no question of invoking proviso to clause (3) and Art 370 becomes a permanent feature.
There is one inconsistency in accepting that submission. Because if its right, the consequence would be that once the Constituent Assembly completed its task in 1957, there could be no amendment to the constitution at all in application to J&K under 370(2)"
He then made it clear, "This is belied not merely by constitutional practice but the acceptance by both the state of J&K and Govt of India that amendments were being made by the constitution even after 1957 and until the disputed amendment of 2019."
At one point Dave said, "For a moment, see 370 (3) independently of 370(1). 370(2) has lived its purpose now and that is dead."
He also argued that the central government did nor provide any reason other than citing law and order and national security.
For his part, the CJI said, "If 370 (1) survives then it'd be very difficult to say that 370(3) ceases to exist. There has to be a logical consistency on how you interpret...it has to be in tandem. Either everything remains or everything perishes together."
Senior Advocate Dushyant Dave also stated, “Today’s house has no moral or constitutional authority to do this just because it has the majority. For the people of J&K, this was the essential feature of the Constitution. On August 5, President issues a proclamation. Then it is sent to Rajya Sabha. Rajya Sabha sends a recommendation on the same day.
Then Rajya Sabha approves the reorganisation bill on the same day. Next day in Lok Sabha it is approved,” Dave said.
He questioned the Modi government's intent and maintained, "It is an extraordinary parliamentary act they have done. It's neither legislative nor Constituent".
CJI said the court will only examine the issue of constitutional validity of the government decision. "Judicial review would be confined to a constitutional violation. There's no doubt about that."
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