BJP can't abuse majority in Parliament to abrogate Article 370: Dushyant Dave

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 Dushyant Dave 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. The hearing will resume on 22 August.

Drawing the court’s attention to the BJP’s 2019 election manifesto, in which the party had promised the abrogation of Article 370, Dave pointed out that manifestos cannot be contrary to Constitutional values. He also referred to the Supreme Court's directive to the Election Commission to frame guidelines to ensure that election manifestos are Constitutional.

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.

Concluding his arguments on Thursday, Dave argued that President’s Rule cannot be used to reorganise states under Article 3. He also contended that Article 370 had "achieved its life" and could therefore not be abrogated after the dissolution of the Constituent Assembly in 1957. He said Article 370(2) and 370(3) had already served their purpose—the Constituent Assembly created a Constitution for J&K, and chose to retain Article 370. He stated that the framers of India's Constitution had called Article 370 a "temporary provision" as they were referring to the temporary possibility that the Constituent Assembly may remove it.

Countering Dave's arguments, DY Chandrachud said the argument that the power to abrogate Article 370 ended with the Constituent Assembly’s dissolution is belied by Constitutional practice, since several Constitutional orders were issued after 1957. “If your argument is right, where is the power to alter the Constitution at all?” he asked.

CJI Chandrachud’s concern here was that if Article 370, because of clauses (2) and (3), is considered to have achieved its life, then no amendments or alterations can be made to the Constitution of India with respect to J&K.

Chandrachud also underscored the point that the Constitution cannot be read inconsistently. Without a Constitutional amendment to remove inoperative clauses, the Court must interpret either all clauses to have survived or for all clauses to have perished. When Dave was asked this question, he said that all clauses may perish.

Dave had commenced his arguments in the matter and argued upon the ramifications of the Presidential Orders not just on the state of Jammu and Kashmir (J&K) but also the rest of the country in terms of a precedent being set, that any majoritarian government had the power to "disintegrate" any state into Union Territories to assume control over the same.

“We are talking about a practice of over 64 years!” pointed out Chandrachud.

During the hearing, the Chief Justice wondered if the court was being invited to judicially review the "wisdom" underlying the decision to abrogate Article 370, while underscoring that judicial review must be confined to a Constitutional violation only.

This was followed by senior advocate Shekhar Naphade informing the apex court about the consequences of the abrogation of Article 370, which includes J&K not having proportionate representation in the Lok Sabha, which is in violation of Article 14 of the Constitution.

“The existence of a state is part of the basic structure and J&K cannot be an exception to it. Because then why not tomorrow abolish Bengal? And by what parameters?” asked Naphade. He pointed out that there is no ambiguity at all as there the Constitution doesn’t mention of abolishing of states. “This is to be seen in the context of Article 1, India, that is, Bharat shall be a union of states,” he added.

He said Article 356 cannot be read in isolation and the purpose of Article 356 is to restore the state, highlighted Naphade, quoting the Bommai judgement.

Article 356 gives wide powers to the Union government to assert its authority over a state if civil unrest occurs and the state government does not have the means to end it. At the same time, Article 355 states it is the duty of the Union to protect states against external aggression and internal disturbance.

“Everyone has argued that 356 is a temporary thing. Article 357, 356 — they refer to a state legislature's power to make laws, which is taken over by Parliament. The power under the proviso is not a law-making power,” added Naphade.

He also questioned how long can there be no elected government in a state. “This question came up before your lordships in the Gujarat Assembly case. And your lordships said six months. The whole Constitutional structure has been demolished,” said Naphade, concluding his arguments.

On day six, advocate Rajeev Dhavan had highlighted that J&K was not the only state which was provided with autonomy, which he described as “fundamental part" of the Constitution. He argued that the democratisation of power was necessary and that without the existence of autonomy given to states and special provisions and concessions given to people when needed, India would collapse.

He highlighted Articles 371 and 371A to 371J, which provide for special provisions for different states. Article 371 provides for provisions related to Gujarat and Maharashtra, 371A for Nagaland, 371B for Assam, 371D for Andhra Pradesh and Telangana, 371E for Central University in Andhra Pradesh, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh, 371I for Goa, and 371J for Karnataka.