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Supreme Court Clarifies Challenges to Article 370 Abrogation Must Focus on Constitutional Violations, Not Government Intentions

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The Supreme Court, in response to arguments presented by Senior Advocate Dushyant Dave representing the petitioners, clarified on Thursday that legal challenges concerning the abrogation of Article 370 of the Constitution must be rooted in alleged Constitutional violations rather than questioning the government’s intentions or decisions behind the move, as reported by Bar and Bench. This observation was made by a Constitution Bench comprising Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

Dave contended that Article 370 could not have been ‘repealed’ utilizing Article 370(3). Responding to this, Justice Kaul stated, “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.” Chief Justice Chandrachud then expressed that the court could not entertain challenges against the intentions or wisdom behind the abrogation.

CJI Chandrachud posed the question, “Are you asking us to judicially review the wisdom underlying the decision to abrogate Article 370? 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.”

In response, Dave emphasized his argument that a ‘fraud’ had been perpetrated on the Constitution through the removal of special status for the former State of Jammu & Kashmir. He stressed that any exercise of power by the President or Parliament must align with the Constitution itself and its constitutional essence. Dave referred to his written submissions, citing the BJP’s election manifesto where they explicitly stated their commitment to abrogating Article 370. He pointed out that these manifestos cannot run counter to the constitutional framework, referencing guidelines issued by the Election Commission in 2015 that all manifestos must adhere to the constitutional scheme and spirit. This was communicated to the 5-judge Constitution Bench during the hearing.


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