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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
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. More info : https://www.thehindu.com/
"The exercise of abrogation is a complete fraud on the Constitution. In the BJP manifesto, they had promised abrogation, and this Court had ruled that these manifestos cannot be against the constitutional scheme and spirit. Now because you have majority in Parliament, you have done this and it is all because you told people to vote for you and you will abrogate it. This shows power exercised for colourable considerations. President is not a rubber stamp; majority does not speak, it is not a constituent power."
After Dave concluded, Senior Advocate Shekhar Naphade began
his submissions for the petitioners.
He said that the Presidential proclamation leading to the
abrogation was "clearly without jurisdiction," since the Governor had
already dissolved the assembly and assumed all powers of the State.
"This
assuming of power will not mean breakdown of law and order machinery. This is a
jurisdictional issue and Article 356 has been invoked for a collateral purpose
and the collateral purpose is apparent on the face of the record. The J&K
Reorganization Act is born in unconstitutionality."
At this point, CJI Chandrachud asked what happens when one
unites two States.
J&K did not completely integrate with
India
Shah
reiterated submissions he had made towards the end of yesterday that although
J&K “unconditionally acceded” to India through the
Instrument of Accession, it did not “integrate” with India since no “merger
agreement” was executed.
He further added that the powers subsumed in
Article 370 can either be termed as “sovereign or residuary” powers.
Zafar Shah (Advocate)
Why did J&K need Article
370?
Shah submitted that since
no merger agreement was signed, J&K maintained its “constitutional
autonomy”. He added that it was through the residuary powers to make laws
that the State exercised its autonomy.
