Article 370 Case | Upholding Centre's Actions Could Create A Precedent To Disintegrate Any State To Achieve Political Goals : Dushyant Dave [Day 6]

Yesterday, the Supreme Court's Constitution Bench, headed by Chief Justice DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, reached its sixth day of hearings in the batch of petitions challenging the dilution of Article 370 of the Constitution of India. 

Senior Advocate Dushyant Dave had commenced his arguments in the matter yesterday and argued upon the ramifications of the Presidential Orders not just on the State of Jammu and Kashmir (J&K) but also on the rest of the country in terms of the precedent that it was setting that any majoritarian government could have the power to disintegrate any State into Union Territories to assume control over the same. He said– 

"Tomorrow it may happen that my party cannot get elected in a state. Will I disintegrate it into a Union Territory? Because there is a law and order problem?"

Dave started by referring to the Article 370 as "perhaps the most brilliant articulation of statesmanship on the part of the constitutional framers." Delving into the backdrop of the creation of Article 370, he painted a vivid picture of the era, stating, "You are at a time when calls for plebiscite are being raised in Kashmir. You are at a time when raiders are raiding in plain clothes and trying to take away. You are at a time when Maharaja is uncertain whether he wants to join India or Pakistan. At a time like that, this was a brilliant compromise that was arrived at which led to producing the article which persuaded people of Jammu and Kashmir to accede to India."

Stating that the people of J&K were given a "promise" and that promise could not be breached Dave took the bench through three propositions–

1. The 'Temporary' Nature Of Article 370

Characterising Article 370 as a piece of legislation marked by its extraordinary draftsmanship, Dave emphasized that its temporariness was distinct as it was not temporary by afflux of time as most temporary statutes are. Instead, Article 370 was temporary by its object and its purpose. Dave asserted, "Once that object is achieved, nothing remains for the President to exercise." He contended that Article 370(3) had fulfilled its purpose with the agreement of the Constituent Assembly of Jammu and Kashmir. He stated, "The day Constituent Assembly of J&K agreed that yes, Article 370 must remain, subject to sovereign modification and the President accepted and issued it in CO 44, that's the end of the story."

2. Procedure For Abrogation Of 370

Dave's second proposition delved into the continuity of Article 370 and the appropriate legislative procedures for its removal. He asserted that if Article 370 were to be removed, the only constitutional manner in which Parliament could achieve this would be through amending the Constitution under Article 368 and repealing Article 370.

In this context, he said– "You don't want to amend the Constitution of India because then you'll have to follow the procedure - you need 2/3rd majority in both houses. You may even need to go to the legislatures of the state because you're taking away representation of the State in Lok Sabha and Rajya Sabha. These are the safeguards. If these safeguards are thrown out of the window in this manner, who else can protect us but your lordships?"

3. Fraud on the Constitution

Dave's third proposition pertained to the events surrounding the exercise of powers by the President on August 5th and 6th 2019 . He argued that these actions amounted to a "fraud on the Constitution."

Elaborating upon the backdrop of the abrogation, he asserted that the Ruling party had exercised its constitutional powers to achieve political ends and the same could not be done as per the judgement in Dr. D.C. Wadhwa & Ors v. State Of Bihar. He added–

"You (BJP) have a government in association with a local party in J&K. It is working well. You suddenly withdraw the support from that government. Then you persuade the President to issue a 356 order. Then you persuade President to issue a dissolution of assembly. Parliament takes controls over executive and legislative functions. Then you say President will exercise all powers into one. Then you pass orders under 370. What more classic example of abuse of power than this?"

He added that President's Rule under Article 356 was in its nature "temporary" and thus permanent actions could not be taken under it.

On National Interest & Setting Of A Precedent

Dave expressed reservations regarding the government's rationale of taking the decision in "national interest," calling for clarity on the definition of the term national interest because it hadn't been defined in the counter affidavit. Proceeding with his argument, he said–

"Of course there is insurgency. Noone can deny that. But then we have insurgency in so many states in North East India. We had insurgency in Punjab for a long time. If we were to start disintegrating states into Union Territories, no state would be saved."

Dave went on to present a hypothetical scenario, highlighting the need for caution in handling such decisions. "Tomorrow it may happen that my party cannot get elected in a state. Will I disintegrate it into a Union Territory? Because there is a law and order problem?" 

Stating that the situation that had arisen was not "a one time exercise", he asserted that the same had ramifications on future of India and to be "giving this kind of power to a majoritarian government would be destruction of rule of law."

Dave then underlined the broader implications of such actions for India's federal structure and democratic ethos. He said–

"This is not just about J&K. J&K was and will always be a part of India. But the promise that India made to J&K- how do you interpret those terms and conditions."

Concluding his submissions for the day, he said–

"This controversy needs a delicate approach by this court. Today let's assume this decision is in national interest. Tomorrow some other political party in power with majority may try and take a decision which is not in national interest."