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CJI asks if petitioners want Supreme Court to assess government’s ‘wisdom’ in repealing Article 370

Dushyant Dave says abrogation exercise was “bereft of any reasons”, prompting the CJI to ask if petitioners wanted the SC to review the basis of the Centre’s decision to repeal the provision

August 17, 2023 10:09 pm | Updated August 18, 2023 02:45 am IST - NEW DELHI

The Supreme Court, hearing a series of petitions against the abrogation of Article 370, said that its ambit lay in investigating whether the repeal of the provision in August 2019 amounted to a “constitutional violation”.

The Supreme Court, hearing a series of petitions against the abrogation of Article 370, said that its ambit lay in investigating whether the repeal of the provision in August 2019 amounted to a “constitutional violation”. | Photo Credit: Sushil Kumar Verma

The Supreme Court on Thursday appeared unenthusiastic to accept an “invitation” to judicially review the “wisdom” behind the Union government’s decision to abrogate Article 370, which had given a special status to Jammu and Kashmir.

Instead, the Constitution Bench said that its ambit lay in investigating whether the repeal of the provision in August 2019 amounted to a “constitutional violation”.

Supreme Court hearing on Article 370 abrogation | Day 1 | Day 2 | Day 3 | Day 4 | Day 5 | Day 6| Day 7

“Are you inviting the court to review the wisdom of the decision of the Government of India on the abrogation of Article 370? Are you saying that judicial review should reassess the basis of the government decision that it was not in national interest to continue with Article 370?” Chief Justice D.Y. Chandrachud asked.

‘Bereft of reasons’

The Chief Justice’s queries came in response to submissions by senior advocate Dushyant Dave that the “whole exercise of abrogation of Article 370 was bereft of any reasons”.

“Someone in the Home Ministry makes a statement that Article 370 impedes national integration… Nobody gives any details… Just a statement and whole thing begins… This Article is not just a letter but the beliefs of the people of Jammu and Kashmir. The repeal did not serve any purpose. Jammu and Kashmir was anyway an integral part of India,” Mr. Dave said.

He said that the earlier judicial notion that the court should not be mindful of political decisions had been expressly rejected in recent precedents.

“But judicial review should be confined to constitutional violation undoubtedly,” the Chief Justice insisted.

Also Read: Have engaged best lawyers in SC to challenge Article 370 revocation: Omar Abdullah

‘Fraud on the Constitution’

Mr. Dave said that his submissions were indeed based on the Constitution. All he wanted to know was what material had decided the President to declare an Emergency in Jammu and Kashmir and rescind Article 370 months later. “It was a fraud on the Constitution. The President exercising powers without any material whatsoever,” he argued.

Mr. Dave argued that clause (3) of Article 370, which empowered the President to repeal the special status of Jammu and Kashmir, had “exhausted itself” with the dissolution of the Jammu and Kashmir Constituent Assembly in 1957.

When the Constituent Assembly dissolved in 1957 without abrogating Article 370, the President’s power to repeal Article 370 died along with it, he said, adding that the constitutional provision then attained permanent status. “The President became functus officio so far as Article 370(3) was concerned,” Mr. Dave contended.

Also Read: Article 370 is an example of federalism, say counsel

1957 impact

The Chief Justice then asked how successive Constitution Orders were passed, modifying the application of the provisions of the Indian Constitution to Jammu and Kashmir, that too for no less than 64 years, if Article 370 had indeed died in 1957.

Mr. Dave clarified that only clause (3) of Article 370, and not the whole of Article 370, had died with the Constituent Assembly. He said that clause (1) of Article 370, which dealt with the application of parliamentary laws in Jammu and Kashmir, either with the consultation or concurrence of the State government, had continued to be in operation till August 2019. The Constitution Orders were issued under clause (1) of Article 370.

He further argued that like clause (3), clause (2) of Article 370 was dead. Clause (2) concerned laws which were made by the Parliament with the concurrence of the State government before the constitution of the Jammu and Kashmir Constituent Assembly. Though the Assembly had to ratify all these laws, clause (2) soon fell out of use, Mr. Dave said. He added that it was because of clauses (2) and (3) that Article 370 was considered a “temporary” provision.

The spirit of federalism in Article 370 could not have been “wished away” by the President by declaring the entire provision otiose in 2019, Mr. Dave said.

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