Challenge to Article 370 abrogation can be only on constitutional violations, not government's intention: Supreme Court

A challenge mounted in court to abrogation of Article 370 of the Constitution can be based only on alleged Constitutional violations and not on the intention or wisdom of the government in making the move, the Supreme Court said on Thursday [In Re: Article 370 of the Constitution]. .A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant made the observation in response to submissions by Senior Advocate Dushyant Dave, appearing for the petitioners.Dave argued that Article 370 could not have been 'repealed' using Article 370(3).Justice Kaul then remarked,"It exists in the statute of the Constitution...there is no repeal. Now as it stands, all provisions of the Constitution will apply to J&K.".CJI Chandrachud then opined that the intention or wisdom behind the abrogation could not be challenged in court."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 violation, this Court will intervene. But, are you asking us to use judicially review the wisdom underlying the decision to abrogate Article 370?"Dave replied that he was pressing the point of the 'fraud' committed on the Constitution through the removal of the special status for the erstwhile State of Jammu & Kashmir..Today was the seventh day of the hearing of petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K). The erstwhile State was subsequently bifurcated into two Union Territories..Dave began his submissions today by arguing that Article 370 had lived its life and achieved its purpose."370(1) survives because if the Constitution is amended later and new Articles are to be applied to J&K also, then that clause may be used. President became functus officio so far as 370(3) is concerned."The CJI then posed a series of questions."If (Article) 370 has served its purpose after the Constituent Assembly comes to an end, why were constitutional orders made applicable post 1957? The fact that 370 served its purpose is belied by consequent constitutional orders made applicable thereafter. So 370 continued to be in existence...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.".Dave then argued that the abrogation could only have been brought about by a constitutional amendment."There is a narrative that Jammu & Kashmir is not part of India due to Article 370 and that is completely incorrect. It has always been the case that J&K is an integral part of India. Even Jawaharlal Nehru rejected this narrative."He emphasised that constitutional history cannot be re-written, and there were no powers to abrogate. "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. Naphade replied, "The existence of states is a part of the basic structure and J&K cannot be an exception to this. What is the impact on the constitutional structure? Where everything has been turned upside down. Ladakh has no representation in the Rajya Sabha. So much for democracy.".The hearing will continue on August 22, Tuesday. .Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here.Read our coverage of Day 5 of the hearing here and here.Read our coverage of Day 6 of the hearing here and here.[Follow our live-coverage of today's hearing]