Supreme Court Live | Article 370 Case: LIVE UPDATES From Supreme Court | Day 12

Cloud ships are not required to go into that question right now but this honorable Court allowed that repetition that so long as these two Provisions remain on the Constitution you cannot take away the privy purses by merely changing article 366 which is the definition Plus their contentions that this is what has

Been done by altering article 367. they are trying to bring in on bring our case on parity with the previous person they are their main plank of the content contention is that this was 370 was in lieu of our exceeding and therefore you could not have done it

But the after the Judgment in madhura of India the government repealed or Lord that is a constitutional amendment constitutional amendment under 360. correct blood I’m saying that Mr I was just about to answer that it was a constitution let government repeal that the route was taken away that is namely article

291 and 362. that came to be challenged before this honorable court and the matter went before The Constitution went in case versus Union of India Millers the Judgment which your losses would find Union of India 1994 supplementary one sec 191. but we will not also have to look at the original Maduras India

It is discussed here okay it is discussed here and distinguished because mothers in their places limitations on the power of the Union government to use the root of an interpretation or definition provision to abrogate substantive substantive constitutional rights that is absolutely a correct legal position but for 370 which

Provides that you can use this that’s your that’s the distinction you’re making that’s the distinction but there is one model you will have to then deal with the point as to why was it necessary to take recourse to 367 then in substance if if I were tomorrow summarize the

Ratio of this judgment in one line the court said that any change in the Constitution which brings everyone at par can never be faulted with princely States after formation of the Constitution of India lost their spatial status and the word fraternity used in the Preamble has to be given some

Meaning and this has the impact of bringing all citizens at par where will we find that in the case law compilations volume seven of case law compilation PDF page 537 but I’ll read relevant part considering about the time constraint uh I I intend to complete Melody on this

Side of the lunch money also after you finish this go back to madurai one okay because if you don’t go through it then you know then obviously there’ll be your uh there’ll be a front in the rejoinder that you know you have not dealt with mother first of all

But I will go to mother there is nothing because that could not kindly come to page one so that your Lordships have modeled the background uh the two red petitions your Lordships it’s paid 540 till PDF 543 yes these two repetitions call in question the Constitutional validity of the Constitution 26th amendment one

Second one second I’m sorry my Lord Justice the way Injustice Surya volumes case law volume seven at 5 43 minutes the beginning of the Judgment yes or no repetitions call in question the Constitutional validity of the Constitution 26th amendment act entirely on the ground that it violates the basic

Structure an essential feature of the Constitution of India and he is therefore outside the scope and MBT of constituent powers under article 368. in addition certain directions or suitable orders are sought for declaring that petitioners continue to be the rulers of the successor rulers or the successor

Rulers as the case may be and directing the respondent union of India to continue to recognize their personal rights amenities privileges as rulers of their earthquake State and also continue to pray pay previous kindly come to the bottom of the Para uh which starts with Malad by the said instrument the petitioner

Accepted the matter specified from the bottom my Lord Justice by the said instrument the petitioner accepted the matter specified in schedule there too as matters with respect to with the Dominion legislature may make laws for the state and declared his intent that the governor general of India the Dominion legislature the

Federal court and any other Dominion office I am reading page 543 at Classic classical just one line above signed by every ioa instrument of obsession or maybe he’s ancestor virus said instrument the petitioner accepted the matter specified in the schedule there too as matters with respect to which the Dominion

Legislature may make laws for the state and declared his intent that the governor general of India the Dominion legislature the federal court and any other Dominion Authority established for the purpose of dominion Shell subject to terms of the instrument exercise in relation to gurundwad state

A such functions as may be wasted in so and so so and so so and so of the instrument provided that nothing therein shall be deemed to commit the ruler in any way to acceptance of any future constitution of India or to Fetter his discretion to enter into agreements with

The government of India under any such future Constitution subsequently a number of rulers executed agreements of merger and transport the administration of their states to the Dominion of India the merger agreement was in the form given in the white paper on Indian States and it was executed in so and so

They were not paraphor you know is a little bit of a background about kurundwad state puranbad is a very small town very close to sangli and kurundwad is on the banks of the river Krishna and a very famous there’s a place it’s a place of Pilgrim called

Lots of tickets come from across the country and once in a year the the Krishna will rise and sweep the whole town clean you know because Krishna is very and the lands are extremely fertile because of the Krishna River uh the rate on the banks of the Krishna

Maybe that may be the reason why the human habitation must have established there you know the forces of water and yeah well all earlier or earlier civilizations are on the Bank of America but now your losses may come to page 548 the arguments there are two constitutional Provisions

Were dispensed with by where repealed by way of a definition clause not like unregular interpretation Clause not here kindly bear one factor in mind 370 sub article 3 has an inbuilt extinguishing provision 370 sub article 3 is a provision whereby 370 can be extinguished that’s the distinction but I’m on a little wider

Argument made by the other side the submission my Lord Justice the submission Advance by Mr surabji the Learned senior Council appearing on behalf of the repetitioner in repetition number so and so are thus article 291 362 and 366 double to follow 366 is double true is the definition Clause defining princes then

Of the Constitution where integral part of the Constitutional scheme and form the important basic structure since the underlying purpose of these articles was to facilitate submission of New Order and ensure organic Unity of India these articles guaranteed pledges to the rulers based on Elementary principles of justice and in order to preserve the

Sanctity of solemn agreements it was only by the incorporation of these articles that the unity of India was achieved by getting all the rulers within the fold of the Constitution and that the deletion of these articles has damaged and demolished the very basic structure of the Constitution the covenants entered into wherein the

Nature of contracts which had been guaranteed constitutionally and affirmed by making the previous an expenditure charged under the Consolidated fund of India and the use of expression guaranteed or assured by the government of dominion of India to any ruler M as embodied in article 291 and the expiration guarantee and

Assurance given under such governance or agreements as is referred to in Clause 1 of article 291 as comprised in article 362 was a permanent feature of the Constitution reflecting the intention of the founding fathers of the Constitution and as such these two articles should have been kept in Tech please pause here

For a minute alert these articles even remotely did not suggest that they are temporal as against 370 which by its very definition says it’s temporary and I will also may not be able to attempt to demonstrate that it could never have been but for temporary such a drastic provision the Visionary fathers and

Mothers of the Constitution would never have kept it permanent with two organs can change the Constitution the way they like but that’s a separate argument please see learn it according to the Learned Council the deletion of these articles amount into a gross breach of principles of political Justice

Enshrined in the Preamble by depriving or taking away from the princes the privy purses which which were given to them as consideration for surrendering all their Sovereign rights and contributing to the unity and entity of the country and that the deletion of these articles by the impune Amendment Act is arbitrary

Unreasonable and viability of article 14 of the Constitution further it has been heard that rulers exceeded to the Dominion of India and executed instrument of accession and Covenants in consideration of the pledges and Promises enshrined in article 2291 and 362 and that the impune Amendment Act is

Beyond and outside the scope and MB of the Constitutional power of parliament to amend the Constitution as provided in the 368. Mr surabji in his additional written submissions has further heard that without the cooperation of rulers not only the territory of India its population the composition of the state

Legislatures the Lok Sabha the rajya Sabha but also Constitution that was adopted on November 2649 would have been physically different and that India that is Bharat would have been fundamentally different from the Bharat that came into being but kindly seemed a lot para 22. Mr Salve the Learned senior Council

Contended that he was also for the petitioner with Mr uh stopping doesn’t apply to him estoppel doesn’t apply to him based on what he argued in that case well that’s the uh privilege on this side we are not come by our arguments article 291 and 362 when yes

291 and 362 were incorp when Incorporated were intended to Grant recognition to the solemn promises on the strength of which the former rulers agreed to merge with the Indian dominion and the guarantee of privy purses and certain privileges was as I just quit pro quo for surrendering their sovereignty and dissolving their states

It has been stated that constitutional guarantees and assurances promising uh con continuance of privy purses enshrined in the agreements and Covenants where an integral part of the Constitutional scheme and an important part of the Constitutional structure and they were to be fully honored and not Cast Away on a false moras of public

Opinion or buried under the acts of States but the impune expressi has abolished and destroyed those constitutional provisions of article 291 and 362 affirming the guarantees and Assurance is given to the rulers under the 23. it is further emphasized that Sardar Patel who made it clear that according

To the vision and views of the Constitution makers the guarantees of privy purses privileges Etc were perfectly in keeping with you the Democratic ethos and principles of Indian people then the Learned Council stated that views expressed in the constituent assembly were unanimously accepted and there was no descent and

That in fact the closing remarks in the debate of Dr patabi sitaramayya where only remarkably confirmatory of the permanence and indivisibility of the afforded guarantee and assurances but also went a long way in determining that the state guarantees and assurances have come to a state come to stay as an integral and

Untouchable part of the basic structure of the Constitution finally it was said that there can be no basic structure of a constitution divorce from the historical evolution of precepts and principles on which the Constitution is founded any effort to determine the basic structure of the Constitution without

Keeping a finger on historical pulse of the Constitution May well lead to substantial Injustice according to him if the historical approach to the test of basic structure is kept in view the guarantees and assurances of the previous privileges Etc granted by the Constitution makers by incorporating article 291-362 and

36622 in the Constitution frame by them good without any doubt or dispute emerge in their own right as basic features of the Constitution which cannot be abrogated or any inhalated by any Constitutional Amendment Etc now your lawsuit kindly see Para 28. at page 551 agreement stated that history of the

Developments leading to the merger agreements and framing of the Constitution clearly show that it is really the union of people of native states with the people of ursul British India and the instruments of accession were only the basic documents but not the individual agreements with the rulers and therefore to attribute the

Agreements entered into by rulers as a sacrificed by the rulers is unfounded secondly the nature of the covenants is not that of a contract because a contract is enforceable at law while this covenants were made non-justiciable by a constitution write article 363 according to him the Covenant the

Covenants were political in nature and that no legal ingredients as the basis can be read into these agreements and that the guarantees and assurances embodied in article 291 and 362 where guarantees for the payment of previous says he has urge that such a guarantee can always be revoked in public interest

Pursuant to fulfilling a policy objective or the directive principles of the Constitution that being so theory of sanctity of contract or unamendability of article 291 or 362 did not have any foundation he continues to state that the theory of political Justice is also not tenable because political Justice Means the principle of political

Equality such as adult sufferage democratic form of government Etc in this context the lawsuits can scheme alert the citation then Para 29. before embarking upon a detailed discussion on the various facets of the convention Covenant Convent contentions both factual and legal we shall deal with the precursive point with regard to

The pre-constitutional instruments of Taxation the merger agreements and the covenants which guaranteed the payment of privy pulses and recognition and personal privileges Etc and with the agreements ultimately facilitated the integration of these states with Dominion of India then my Lord uh 30 your Lordships May skip its history 31.

This accession of Indian states to the Dominion of India established a new organic relationship between the states and the government the significance of which was forging of a constitutional link or relationship between the states and Dominion of India the accession of Indian states to Dominion of India was

The first phase of the process of fitting them into constitutional structure of India the second phase involved a process of twofold integration the consolidation of States into sizable administrative units and their democratization though High walls of political isolation had been raised and but rest to prevent the infiltration

Of the urge for freedom and democracy into Indian states with the Advent of Independence the popular urge in the states for for attaining the same same measure of Freedom as was enjoyed by the people in the provinces gained momentum and Unleashed strong movements for the transfer of power from rulers to the

People on account of various factors working against the machinery for self-sufficient and Progressive Democratic setup in the smaller stage and see those states there was an integration of States though not in a uniform pattern in all cases firstly it followed the merger of states in the province’s geographically contiguous to

Them secondly there was a conversion of States into centrally administered areas and thirdly the integration of their territories to create a new viable units known as Union of Estates now come to Pera 38 at page 554 PDF 554 now will not be honorable Court discusses Madara because mother obviously was cited

We said that privy purses are an integral part of the Constitution of India that is one and number two that you could not have taken it away by merely deleting the definition of princes this is the two then 13. on May 14 1970 the Constitution 24th Amendment bill for abolition of the episode

Previous privileges Etc conferred in the article 291-362 and 36622 was a 366 22 was introduced in Lok Sabha by these and Finance Minister SRI chavan the bill contained three Clauses and a short statement of objects and reasons the statement reads as under the concept of rulership with privy purses and special

Privileges unrelated to any current function and social purposes is incompatible with an egalitarian social order government has have therefore decided to terminate the privy purses and privileges of rulers of former Indian States on September 2 the bill was voted upon in Lok Sabha but on September 5 rajya Sabha rejected the

Same since the bill failed in the rajya Sabha to reach the requisite majority and not less than two-thirds present at by article 360 eat and voting close on the hills of the said rejection the president of India purporting to exercise his powers under Clause 22 of article 366 of the Constitution signed

An order withdrawing recognition of all rulers of the country and mass look this is this was the subject matter in mother mother a communication to this effect was sent to All rulers in India who had been previously recognized as rulers so what was done was by a constitutional order

Which is unheard of the Lord except in 370 The Honorable president virtually declared two Provisions to be nality the presidential order periphati the Der recognizing the rulers were questioned in madhavrao sindhya versus Union of India by filing repetition under article 32 challenging its un it as unconstitutional ultravirus and void an

11th judge bench of this court by its judgment dated so and so struck down the presidential order being illegal ultravirus and inoperative on the ground that it had been made in violation of power of the president of India under article 366 double two of the Constitution and declared that red

Petitions would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impune orders therein had not been passed here it may be noted that Justice mitter and Justice Ray gave their dissenting judgment they started getting privy purses not kindly come to Pera 77 at page 562.

Respond may not help a lot uh assist your Lordships 77. according to Mr Surah that’s one the Lordships would and certain metabolous in the merger or the other agreements that the president of India will recognize the ruler or something because of inheritance and otherwise that was there yeah everybody 66 there

Was some stipulation because those the rule of primary nature and other things were all recognized in that that blood blood trees this guaranteed them not only privy persists some privileges not all states were divided into unsolute States somewhere 21 Guns salute some ways the smallest was one Consolidated refer to presidential

Orders in that merger agreements also no at that time there won’t be any president as such no no there was nothing because at the time when the agreements were signed they won’t be thereafter the Constitution was made and the president The Honorable president was elected the practitioner that merger agreements were signed by

Dominion of India or subsequently government of India by the secretary minister of State Ministry of State essentially is the signatory 175 make a brief reflection yes there are 74 and 75 there is a brief preference to all these agreements hey yes para 75 75 therefore there cannot be

A Melody it is on page 560 one word possibly that’s what Malad The Honorable what is redeemed therefore there cannot be any justification in saying that guarantees and Assurance is given to the rulers where Sacramento and that article 291 and 362 reflected only the terms of the

Agreement and governance in fact as soon as the Constitution came into Force the memoranda of agreements executed and ratified by the State of Union Union of states were embodied informal agreements under the relevant articles of the Constitution and no obligation flowed from those argument agreements and Covenants but only from the

Constitutional Provisions to say differently after introduction of article 291 n362 in the Constitution the agreement and governance have no existence at all everything gets subsumed in the Constitution itself in fact that is the proclamation which currency issued after the adoption of the Indian constitution the entire relationship will be governed by the

Indian constitution yes all previous governance agreements will cease to have any application and now the final document is the constitution of India which we have given to ourselves but to say differently after the introduction of article 291 and 362 in the Constitution the agreements and Covenants have no existence at all the

Reference to covenants and agreements was casual and subsidiary and the source of obligation flowed only from the Constitution therefore the contention urged on the use of the words guaranteed or assured is without any force and absolutely untenable the next vital issue is whether the impune Amendment act damaged any basic structure or

Essential feature of the Constitution according to Mr surabhi the repeal of article 291 and 362 which were an integral part of the Constitutional scheme the identity of the Constitution has been changed and its character has been fundamentally altered the total repeal of these articles coupled with an Express repudiation of the guarantees

Embodied therein has resulted in nullification of a just quid pro quo which were the essence of these are guarantees he has heard that the underlying purpose of doing Justice to the rulers has been subverted and breach of faith has been sanctioned he has relied upon these judgments including

Miller 3 is mother of India and please sing a lot 79 Mr DD taku the father of my Lord Justice my Lord the Chief Justice in addition to the above has stated that one of the tests to determine whether the provision of the Constitution was intended to be

Permanent or could be deleted or amended is to see whether the Constitution makers had intended that to be made permanent in support of this submission he plays much Reliance on the observations of Justice mudholkar in sajan Singh what I can skip that and thereafter monody May directly come to 88 at page 563.

This is in support of his contention that article 291 and article 362 and Clause 22 of the article 366 where integral part of the Constitutional scheme which otherwise would mean the essential part of the Constitutional scheme referred to Webster’s Dictionary and Collins concise dictionary and has pointed out the

Lexical meaning which says the integral means essential and therefore according to him the total abolition of provisions of the Constitution which are in integral its integral Parts otherwise essential parts has damaged the essential and basic features of the Constitution to draw strength for his submissions he relied upon certain

Observations made by Justice Shah in his judgment in madhav Rao observing and distinguished by the provisions enacted in article 366 22 291 and 362 of the Constitution the Privileges of rulers are made an integral part of the Constitutional scheme and an order merely der recognizing a ruler without providing for continuation of the

Institution of rulership which is an integral part of the Constitutional scheme he is therefore plainly illegal the Learned attorney general has vehemently opposed the above submission stating that the expression integral part of the scheme of the Constitution used in mathura are not the same as the basic structure and that

Expression has to be read in the context of a challenge to the ordinance which sought to render negatory certain rights guaranteed in the Constitution then existing it is further stated that the attack on 26th amendment based on principles laid down in madhavrao is totally misconceived because only in

Order to overcome the effect of the Judgment the 26th amendment was passed by parliament in exercise of its constituent Powers the precedent exercise executive power which he did not possess just to contrast article 370 has a constituent power in the precedent and the sub article three the self-extinguishing provision

According to the attorney general the observations in the seed case were nullified by the amendment and the judgment is no longer good law after the amendment to test the amendment on the basis of that judgment is impermissible and all the arguments based upon this case are therefore misconceived then 91

After the commencement of the constitution in pursuance to article 33662 the rulers were recognized and they had been enjoying the privy purses privileges dignities Etc on the basis of relevant constitutional Provisions pursuant to the resolution passed by all India Congress Committee in 1967 the union of India introduced the 24th

Amendment bill in 1970 to implement the decision of the all India Congress committee favoring the removal of privy purses privileges Etc but the bill though passed in Lok Sabha failed to secure the requisite majority in rajya Sabha and therefore it lapsed it was only thereafter that the president of

India issued an order in exercise of powers wasted in him under article 366 double two changing the definition Clause by an ordinance oh I’m sorry but my Lord Justice okay please continue answer I uh three sets double six double two D recognizing the rulers and stopping the privy purses privileges Etc enjoyed by

The rulers now this is important this is the distinction this order passed by the president was the subject matter of challenge in mother of two the Supreme Court struck down the order of the president as invalid as in the view of the Court the recognition of rulers would not take

Away right to privy purses when article 291 and 362 where in the Constitution this is the ratio that you can’t delete a definition while retaining the constitutional rights guaranteed under 291 and 362. it was only in that context the observations which have been relied upon by Mr surabji were made the 26th

Amendment itself was passed by parliament to overcome the effect of this judgment Now by this amendment article 291 and 362 are omitted article 363 a is inserted and Clause 22 of article 366 is amended therefore one cannot be allowed to say that the above say omitted articles and amended Clause

Where the essential part of the Constitutional scheme so they have to be read only in the context of a challenge made to the presidential order which sought to render negatory certain rights guaranteed in the Constitution which were then existing in any event the Constitutional bar of article 363

Denudes the jurisdiction of any Court in disputes arising from covenants and treaties executed by the rulers the statement of objection reasons of 26th amendment clearly points out that the retention of the articles and continuation of the Privileges and privy purses would be incompatible with the egalitarian society assured in the

Constitution and therefore in order to remove the concept of rulership and terminate the recognition granted to ruler and abolish the privy purses this amendment was brought now 92 is very on the question of federal diversity we are of the opinion that the observations of Justice Shah in madhavrao that privileges of rulers are

Made an integral part of the Constitutional scheme and that the institution of rulership rulership is an integral part of the Constitutional scheme must be read in their proper context that was a case whereby a presidential order the rulers were deprived of their previous and other privileges while keeping article 291 and

362 intact in the Constitution this doesn’t arise here indeed the said presidential order was issued after the government failed in its attempt to effect an amendment on those lines it is in that connection that learned judge made the observations it is clear that the learning judge used the word integral

Part in their ordinary connotation not in lexicographical sense ordinarily speaking integral means of a whole or necessary to completeness of a whole and as forming a whole our constitution is not a disjoint document it incorporates a particular socio-economic and political philosophy it is an integral whole every provision

Of it is an integral part of it even the provisions contained in article 21 temporary transitional and I’m sorry part 21 temporary transitional and special Provisions one may ask which provision which concept or which institution in the constitution is not an integral part of the Constitution he

Will not find an answer to set a particular provision or a particular institution or concept is an integral part of the Constitution is not to say that it is an essential feature of the Constitution both are totally distinct and qualitatively different concepts the said argument is really born of an

Attempt to read a judgment as a statue one may tend to miss the true meaning of the decision by doing so we may say the effort observations of Justice constituted the anchor of the petitioner’s argument relating to the basic structure but just similarly Federalism is also another a basic

Structure but the federal diversity can still exist within federalism but no that’s a separate issue the above in the above Prima is it is not permissible to test 26th amendment with reference to observations made in madhavrao but now kindly come to pay Pera 96 at page five double six 96

At page 566 yes permanent retention of the privy person the Privileges of Rights would be incompatible with the Sovereign and Republic form of government such a retention will also be incomputable with the egalitarian form of our Constitution that is the opinion of the parliament which acted to repeal their foresight Provisions in exercise

Of its constituent power the repudiation of the right of privy purse privileges dignities Etc by deletion of Articles so and so which the recognition of the rulers and payment of privy purse are withdrawn cannot be said to have offended article 14 or 19 1f and we do not find any logic in such

Submission no principle of Justice either economic political or social is violated by the 26th amendment political Justice relates to the principles of right of the people that is right to Universal sufferage right to democratic form of government and right to participation in political Affairs economic Justice is enshrined in article

39 of the Constitution social justice is enshrined in fellowships can skip that 97 a series a serious argument has been Advanced that the privy purse was a just quid pro quo to the rulers of Indian States for surrendering their sovereignty and rights over their territories and that move for

Integration begin on a positive promising promising note but it soon degenerated into a game of maneuver presumably at as a deceptive plan of action this argument based on the ground of breaking of solemn pledges and Bridge of Promise cannot stand much scrutiny to say that without voluntary accession

India that is Bharat would be fundamentally different from that Bharat that came into being prior to the accession is untenable much less inconceivable please do not mark this mother beautiful words one should not lose sight of the fact that neither because of their antipathy Towers the

Rulers nor due to any xenophobia did the Indian government entertain the idea of integration but because of the will of the people it was the people of the state who were basically instrumental in inter integration of India it would be opposite to refer to the observations of Justice Bose in virender Singh judgment

Every Vestige of sovereignty was abandoned by the Dominion of India and the states and surrender to the people of the land who through their representatives in the constituent assembly hammered out for themselves a new constitution in which all were citizens in a New Order having but one type and owing but one

Allegiance devotion loyalty Fidelity to The Sovereign Democratic Republic that is Indian well thereafter it is also worthwhile to take note of the historical process of state’s integration not your losses May directly can come to one zero nine at page 569 107. on a deep country your lordship my Lord

Beta 107 on a deep consideration of the entire scheme and content of the Constitution we do not see any force in the above submission in the present case there is no question of change of identity on account of 26th amendment the removal of article 291 and 362 has

Not been made has not made any change in the personality of the Constitution either in its scheme or in its basic features or in its basic form or its character but please read 370 in this does it change the personality of the character of The Constitution the question of identity will arise only

When there is a change in the form character and content of the constitution in fact in the present case the identity of the Constitution even on the test proposed by the council for repetitioners and interveners Remains the Same and Unchained SRI so-and-so has contended that by removing the real and

Substantial distinction with between erstwhile princes forming a class and the rest of citizenry of India the Constitutional amendment has at one stroke violated the basic structure of the Constitution as reflected both in article 14 and 51c and treated unequals or equals thereby giving a go back to a solemn treaty obligation which was

Sanctified as independent constitutional guarantee 109. this is very very important and crucial for our purpose the purpose of the respondents after carefully going through the above decisions which relate to service matters we are afraid that such an argument as one made by SRI so-and-so could not be substantiated on the

Principles laid down in these two decisions that article 14 will be violated if unequals are treated as equals in our considered opinion this argument is misconceived and has no relevance to the facts of the present case please note this one of the objectives of the Preamble of our constitution is fraternity assuring the

Dignity of the individual and the unity and integrity of the nation it will be relevant to cite the explanation given by Dr ambedkar for Words fraternity explaining that fraternity means a sense of common Brotherhood of all citizens no region no part of the region no citizens staying in any region should get any

Different treatment than rest of the country in a country like ours with so many disruptive forces of regionalism communalism and linguism it is necessary to emphasize and de-emphasize that unity and integrity of India can be preserved only by a spirit of Brotherhood India has one common citizenship and every

Citizen should feel that he is Indian first irrespective of other bases you know therefore I started by saying that a psychology logical duality in the mind is now completely gone in this view any major please mark this in this view any measure at bringing about equality should be welcome

There is no legitimacy in the argument in favor of continuance of princely privileges since we have held that abolition of privy purses is not viability of article 14 it is unnecessary for us to deal with the cases cited which according to him go to say so and so then 110 one of the

Arguments Advanced by Mr Didi thakur is that the constitution should be read in the context of a pluralistic society of India where there are several distinct and different differing interests brought together and harmonized by the Constitution makers by assuring each section class and Society preservation of certain political cultural and social

Features specific to that class or section by way of example reference to article 370 which confers a special status for Jammu and Kashmir is made he continues to state that likewise in the northeastern states that Rivals were given autonomous powers for their District council’s co-equal to what is

Conferred on the states and that the minorities special Provisions are made in article 30. besides article 25 and 26 are meant to safeguard the minorities and religious denominations the persons to determine the injury will be those for whom these Provisions were made and whose interests are prejudiced according

To him in such a Circumstance the assurance and guarantees given in article 291 and 362 which are the Magna Carta assuring the rulers of their pre-existing rights cannot in any way be destroyed we do not think that therefore said special Provisions have any relevance here as repeatedly pointed out Supra

The only question whether there is any change in the basic structure of the Constitution by deleting article 291 and 362 and by insertion of article 363 a an amendment of clause 22 of 366. we have already answered this question in the negative Observer observing that the basic structure of the essential feature

Of the Constitution is or are in no way changed or altered by the impugned amendment we cannot make cermices of its ifs and buts and arrive at conclusion that article 291 and 362 should have been kept intact as special provisions made for minorities in the Constitution

It is but a step in the historical Evolution to achieve fraternity and unity of the nation transcending all regional linguistic religious and other diversities which are the Bedrock on which the Constitutional fabric has been raised the distinction between the erstwhile rulers and the citizenry of

India has to be put an end to so as to have a common Brotherhood the court traces it to fraternity mentioned in the Preamble third even removal of some provision according to this judgment can further the Constitutional objective and can be in furtherance of the basic structure of the Constitution fraternity

Equality is a basic structure of the Constitution it’s a part of Brotherhood it’s a part of equality part of fraternity and if any provision that which keeps out of the total composition of our constitution as an appendage as a transitory provision to be removed at an appropriate stage if it

Is removed it furthers the basic structure that it enhances the equality and fraternity which is the Bedrock of the Constitution in this view but it in my respectful submission may not be necessary to re read mother of sindhya gentlemen if your lordship would wish me Melody I can assist your lordship with that

But we will not ultimately read the same paragraphs based upon which but it is distinct that when you are doing something one definition was deleted with the president it never possess even today it doesn’t possess but only in one provision that is 370 where you can amend any part of the Constitution

So explanation 367 mechanism is used but this is the DraStic nature of this provision 371 permits two organs the government of the president president would mean act and advice Aiden advice and the government of the state again Aiden advice Lord please please Lord appreciate this two individuals technically the Prime

Minister and the chief minister of the state whoever is can make any change can make any alteration again choose not to apply any provision and like 35a can create a constitutional provision only applicable to Jammu and Krishna that provision is exercise now as a last exercise to ensure that it never happens 367

Explanation is added I’ll come to them wrote my learning friend wants me to foreign just note the paragraphs 151 152 . 18 models one eight zero one one eight columns dear okay yes I’m sorry two zero six Justice Mohan therefore this chord cannot concern itself with the moral aspect of the impunamin the impune amendment is the will of the people expressed through Parliament Lord here the parliament has examined on four occasions with two third majority in both the houses can note the paragraphs which we would be

Reading but since it’s already 11 4500 I don’t wish your lordship’s time alone why if possible will not conclude at one o’clock good in mathura house India we will be relying upon 97 109 119 one two zero one two five one two six one four three in 145 and and 145

Ultimately it turned that without deleting article 291 and 362 whether presidential order can be used by deleting the definition only that was the discussion which is distinguishment in this judgment can you can the abrogation stand independent of the modification which is made to article 367 here look that is my submission

But even in absence of the Proviso or explanation the last explanation what it does it merely substitutes the term constituent assembly with legislative with legislative assembly but my submission is going to be that in when the constituent assembly is dissolved without any recommendation that part of the requirement goes because Proviso

Proviso becoming otios cannot result into the main provision becoming inoperative then the president was left to his own choice in 367 mechanism is so far as 370s that the a presidential order was issued because if you see the provisions of article 366 yes 22 as it stood prior to

The amendment by the 26th amendment if you have this red book it may not be in that you will have to get it in the red book at page 372. I guess that said ruler in relation to an Indian state means the prince Chief or other person

By whom any such Covenant or agreement as is referred to in Clause 1 of article 291 was entered into and who for the time being is recognized by the president as the ruler of the state and includes any person who for the time being is recognized by the president as

A successor of sashvula yes now what happened there was initially after you know the the the the the proposed amendment didn’t pass master in the rajya Sabha the presidential order is issued purportedly under clause 22. and the object was now we are de-recognizing you if you are being

Re-recognized you lose the benefit of artificial that assumed to be the consequence of the recognition right so this was done in exercise the power which was conferred under Clause 22 as it then stood prior to the 26th amendment awkward said Look by request to a presidential order you cannot override a

Substantive provision of the Constitution namely article 291 and article 362. that was Mother house India correct then came the Constitutional Amendment which was upheld Against The Challenge on the ground of the basic structure violation argument in this case is that what you have done essentially here is worse

Because there there was a presidential order in exercise of a provision in article 366. we gave the president the power to recognize or de-recognize a ruler yeah what is being done is that 367 itself is sought to be amended in exercise of the you know during the uh that we’ve seen 370.

To amend 370 which has been done consistently and Affirmed biologics you know what the distinction is twofold distinction a 370 is the only article was the only article which permitted the president to change any other article so 367 your Lordships have shown I have shown the chart that 367 mechanism was

Used in past that’s that has been the convention so the only thing which happened my Lord on 5th and 6th of August was that using the mechanism of 367 the constituent assembly was changed it is not worse there is 67 mechanism which which was used earlier to for instance substitute

You know the southern areasa Etc that was with the concurrence of the assembly no only once that was three that was 370 sub article three this this will not use of 367 is not only will not see the distinction the what was done with the concurrence was under 370 sabbatical three

Constituent assembly was there in 1952 it recommended and the change was made this time it is under 371 d this time I may emphasize my Lord so that I I’m sorry I was not clear I’m sorry my largest is called what to my Lord’s satisfaction

S may come to that I’ll show only two Provisions 371 d Lordships have 371 demons yes this is the first Power such of the other provisions of this constitution shall apply in relation to that State subject to such exceptions and modifications as the president May by order specified

Correct Now read three kindly read three not withstanding anything in the foregoing provisions of this article the president May by public notification declare that this article shall cease to be operative that is first part or shall be operative only with such exceptions and modifications and from such date as

He may specify this is the power of extinguishing or partly extinguished question the first exercise as your Lordships have rightly said was under three because the constituent assembly was in existence it recommended rest Whenever there were modifications made in 367 were made under 1D all rest all under one including this

One with the Congress of the government concerns of the government the reason was for that was very simple because you are amending the Constitution and you are not dealing with subclass three or three yes you’re not dealing with subclass three I’m not dealing I

Dealt with at the end on um not 6th of August because subclass uh three only deals with 370 itself itself not other yellow teams are right not other part of the Constitution because D refers to other because before D you have C yes C says that the

Provisions of article one end of article 370 shall apply to the state of Jammu and Kashmir correct therefore in that sense it freezes the provisions of article 370 in relation to the state of Jammu and Kashmir now what he does is therefore it says other provisions of the Constitution

Tell apply subject to such exceptions and modifications therefore other Provisions will mean Provisions other than Article 1 and article 370 and 370 itself and 378. correct therefore if you have to make an alteration of 370 or abrogated status or reduce it or dilute it or alter it you have to follow the

You have to follow this equals to three correct right but but kindly I’m I’m sorry I’m almost reaching alert at your lordship’s level but then when you do that can you do that exactly that’s what I’m answering the power under 367 then that’s the point exactly that’s what I’m

Answering I cannot do that under sub article 3 367 I cannot modify under three as a particle d that I can do and I have done only under 371 d it has been used as a mechanism and Domino approves it we’ve seen them know anything looking at

It we are looking at it as a matter of First Impressions the first impression can you alter the import of a provision of article 370 itself I process other than three because what you have done essentially here is no no that you have used 367 to amend the Proviso to 370 correct

They’re not a man 367 is explanation that instead of a it would be B it may have an effect of Amendment whether you call it an explanation or an amendment yes one thing is very clear that the amendment to 367 has the consequence of now reading the words legislative assembly

In place of constituent assembly which in fact was not necessary but yes it was done but not under 370. it was done under first the first step was Malone the first step was the president under 371 d uh added the explanation that henceforth what the question being put to you

Slightly I think different the question is by making the amendment in 366. by creating constant assembly with the Legislative Assembly aren’t you in fact amending article 370 Why without taking recourse to 373. to Clause 3 of 370 because article 370 can be only amended it has the effect of it becoming

Permanent because there is no constituent assembly so it can never be modified 370 can never be modified can take recourse I mean the argument on the other side is this that you can take recalls to Clause d of subclass D of clause 1 in a situation where you have to amend

Any other provision of the Constitution other than article 370. how but can you doesn’t you take yes it doesn’t say so it’s very clear it says other means I accept one and three seven so you are saying such other Provisions will include 367. Mr solicitor yes yes

Because we have to deal with these issues so we we want to elicit a response yes uh 367 one sorry 371 D refers to other provisions of the Constitution other provisions of the Constitution according to you would include 367. possible we’re not ruling this out at all we will test that hypothesis

But can you use 367 and amend 367 to bring about an amendment to 370. if you do that while exercising the power under 371 d then are you not really doing that to amend 370 itself because the only provision which the Constitution creates to amend 370 is 370 clause 3.

What you are now doing is according to them is that you are using the amendment of 367 applying the provisions of 371 d to bring about an amendment to 370 itself whereas the purpose of 371 d is to amend some other provision of the Constitution true 367 is another

Provision of the Constitution but can you use that to amend then C70 itself that’s the point which you have to answer but I can assure my learnings no no please no no I can assure him nobody can disturb me or derail me without my consent I am quite accustomed to the

Such interruptions I have a solicitor please don’t get derailed because this is the heart of the matter no no I know that I know that and he also knows but I’m quite a custom Clarity on this is necessary I will put it slightly differently I’ll put it differently

The interpretation which a lot ships are not prima facie now testing we are testing the Prima facing testing it Lord what will be the impact of that interpretation I’ll read more of the entire article 317. meaning their Bible in absence of a constituent assembly which can never be modified

The sub article 3 can never come into uh effect come into operation and 370 gets the status of a permanent provision you know please read it in totality Miller please read uh the entire article but not for my satisfaction please have a look at Melody the entire article not withstanding anything in this

Constitution AAL or ships can skip the power of parliament to make laws for the state state shall be limited to those matters in the union list and concurrent list your lawsuits have seen those the precedent here the provisions of article one end of this article shall apply in relation to

That state the purpose is that Jammu and Kashmir can do nothing in their constitution or even Parliament can do nothing in their constitution the the Difficulty my Lord if your Lordships exercise I am not accepted then even 368 root which is the second route suggested cannot be done because it says one and uh this article shall remain if that is the meaning given that that is completely unalterable then 370 remains

As a permanent though there are host of considerations for me to show that it has always been a temporary feature further such of the other provisions of this constitution shall apply in relation to that State subject to such exceptions and modifications as the president made by order specified a lot

Other Provisions would mean other than B they are just stopping you for a minute could the Legislative Assembly make a recommendation in terms of 371 a saying that under 367 you equate consume the assembly with legislative assembly under 370 140 370 what’s up plus plus one supplies D could the

Legislative Assembly make a recommendation saying if it is amendment it cannot if we just think about it and then answer but the legislative assembly uh make a recommendation to the parliament please the main article 367 and let let me give it a thought and respond to that

That I I understand the heart of the matter Lordships Lord discussion method is driving that any 370 see 367 use which has the impact of altering 370 itself you know then my Lord we would be setting it not all a 367 usage but kindly remember through the 367 mechanism 370 has been modified

That’s the point in what in favor of what you are saying with the caveat that the use of the 367 mechanism to modify 370 was always with the consent sorry yeah also it is concurrence the only difference yes this is where you want that that is constitutely the significant difference

Look this is also with concurrence the only difference is the concurrence of the governor because Governor steps into the issues of the government there is in concurrence and recommendation correct because it can be subsequent recommendation has to be recommendation is of the body constituent assembly as it stood and

Subsequently if we are right legislative assembly concurrence of the government and government the only dispute was that government cannot mean governor please similar concurrence provision concurrence of the government means that’s the Council of Venice Council of ministers if it is there otherwise powers are exercised by the governor

And that’s why I’m a lot I pointed out that there are several exercise of 371 d when there was a president’s rule with concurrence of the governor at least your provided yesterday yes let me give it a thought but the real question would be you have already responded

Well the real question is that uh your concurrence is that of the governor government whichever is the government if it is uh Ministry then cabinet he didn’t advice otherwise the governor and during Governor’s rule 371 D is used to change 367 also not change change is a correct incorrect

Word to put an explanation to give meaning to 370. so simply put according to you that according to you uh at a time when there was no legislative assembly the explanation was amended so as to increase so as to provide that the constituent assembly shall itself be treated as the Legislative Assembly

Because it was so treated the Constitution had not been framed and there was no legislative assembly in the state of Jammu and Kashmir so according to you the flip side now is that when there is no constituent assembly we treat the Legislative Assembly as a constituent assembly

To to democratize no not otherwise we would kindly see suppose the government took the decision the government took the decision suppose the second answer could be and that’s for the other side to answer by amending 367. in fact you’re not indeed really amending 370 as such because the 370 procedure has to be

Still applied to abrogate or nullify 370 the procedure has to be said applied suppose 367 had been amended in terms of 3711 d 371d with the concurrence of the state government Second Step the Legislative Assembly had maker made a recommendation please abandon or abrogate 370. it would have been it would have passed

Must nobody would have really probably the other side wouldn’t have been here also except some of them they would still be here but that’s uh so that’s beside the point but it could have been that if this route is permissible or not I am putting a question to myself not

Suppose I thought I answered it in the office yeah absolutely right that’s my answer that’s my answer I’m grateful to your lord for that that thought didn’t occur to me but not suppose we took the decision that in view of the Proviso becoming otters because there is no constituent assembly that limitation of

Recommendation ultimately its recommendation suppose it recommends that don’t abrogate president is not bound by it so now the constituent assembly having chosen while being dissolved not to recommend the constituent assembly has left it to the absolute discretion of the president it could have been done but not possibly

It could have been defendable action but with a view to ensure that there is democratization of the action and Memorial Lordships are dealing with the state of this is a provision which is one of its kind there is no such provision either in our constitution or in any Constitution so the law which

Your losses would ultimately lay down is not going to touch upon any other provision if in suppose the common or constituent assembly while it was being dissolved if it framed the Constitution it had options a don’t abolish I am recommending that President should not exercise powers under sub article 3 it should not

Abrogate 370 that was the first option second option he should abrogate article 370. after five years till then let the Constitution continue third the president is recognized we recommend that President should modify some of the provisions which we recommend and continue 370 as it is forever having done nothing of this

Not the constituent assembly goes without making any recommendation and therefore leaving it to the absolute discretion of the president the solicitor you said that recommendations it’s a recommendation it’s not you you see the words used in the Proviso provided that the recommendation of the constitute assembly of the state

Referred between Clause 2 shall be necessary yes but why I say this a lot in kindly see the second Proviso concurrence word is used concurrence means I have to say yes otherwise you cannot do it therefore I am contrasting the word concurrence with recommendation consultation yes the cons concurrencies at the highest level

That without consent concurrence means consent consultation May sometimes means consent may not mean consent your lordship has seen Justice sh States transfer of Judges judgment where it says that consultation can even mean concurrence so I am not just contrasting the word concurrence with recommendation that the same provision uses the word

Concurrence means unless the states say yes Union president can do nothing but here it same provision uses the word recommendation that you you will recommend ultimate power with the president president who is answerable to the house house which is answerable to We the People of India so highest executive

Functionary is conferred with this decision and we can read that in absence of constituent assembly and its recommendation the Proviso goes it becomes redundant it becomes otures it becomes not possible of being implemented and law doesn’t require performance of an impossibility but considering the nature of the Strategic

Importance of the state it was felt necessary then let this be debated in both the houses of Parliament House of people it has its own Federal structure every state has a representation in a different indirect election form and both houses passes murdered with two third majority but even uh constituent assembly could

Have recommended that word temporary be deleted even Clause 3 be deleted why not there was no embargo during the subsistence during their existence and while being dissolved or during that period they could have said that delete temporary provision delete article three now we don’t want anybody’s power to abrogate

We could have said even C can be deleted suppose one of the constitute and assembly were to say they delete one C that article one is untouchable because now we have our own Constitution we no longer are a part of integral part of India not it could have said

Technically it could have said that Section 3 of The Constitution says no we are an integral part of India they never said that President’s power under three we recommend being either diluted or taken away they never wanted Clause 3 to die that’s very clear so we’ve covered now the first point the

Interpretation of 370. 370 there are some points but notify on 370 uh Mr solister why don’t you summarize in three or four propositions what’s the heart of your subject and I’m going to do one thing if a lot she permits but I knew Lord I’ll be running Against Time

Lord instead of not my 40 50 pages of blood uh explanation and arguments I have summarized in four pages right that would not save your lot ships time also in my Lord you have it here if I can be permitted I’ll just quickly go through

Five minutes and we can we are done with it yes yes you get it says my Lord it declares it to be temporary via Lord says may not read anything a lot it can it is contained in part 21 which has three categories temporary special provisions and transitory Provisions so constitutional

Framers are aware of what word they are using something very very serious look at the width of the power two individuals in practice and legally speaking to others namely the president and the state government can alter any part of the Constitution and apply it to one part can delete any constitutional provision

Can create a new provision and therefore not the submission is considering the very expanse of this provision the legislative the constituent framers would never helped contemplated this to remain forever such a position can never remain forever wherever Constitution remains a floating document perennially for one state then three

Impact of article 370 was to deprive the residence of Jammu Kashmir and ladakh from being treated at par with their fellow citizens well therefore my Lord I am saying that this also is one suggestive indication that framers never intended it to be permanent then look this is the entire provision

But this is very important this is the entire provision in the Constitution where application of not only Constitution please see this melod the seriousness of this application of constitution of India an application of central laws including beneficial legislations is dependent upon concurrence of the state the only provision it says it would not

Apply it will not apply drastic provision could never have been intended to remain perennially permanently then my Lord this is the only provision which has an inbuilt self extinguishing provision article sabbatical three no other Constitution provision has this self-destructing clause this again malware is a pointer that it was intended to be temporary

Then it is goal of equivalence but what I have already said Lord in the Judgment which I read that temporary problem soluble provision cannot be read so as to treat one part of State differently their citizens differently they envelop your Lordships would not give interpretation to a temporary constitutional provision having such

Drastic consequences because your Lordships are not going to be confronted with a similar situation in future there is no other provision in the Constitution and to our knowledge any other part of the world where a provision of a constitution of the main unit applies only with the state concerns

In a federation like ours there cannot be any such provisions look then I have said kindly examine it from the People Single then 370 is interpreted the way petitioners interpret 371 would become permanent which is not only impermissible and not envisage but would result in the unconstitutional provision remaining in

The Constitution and operative unconstitutional why it discriminates it confers an authority which is never contemplated in other states application of the Constitution of India given by we the people would either not apply fully or would apply not but I’m on 10 point number ten but I would

Request if your losses Can Read With Me the petitioners assertion that such a huge decision is taken purely by an executive fear is absolutely wrong the process followed clearly reflects participation of entire nation through their chosen Representatives both in Lok Sabha and rajya Sabha when a decision

Becomes a concerns a federating unit it is of strategic significance what I have pointed out article 3. the Proviso to sub article 3 was to remain in operation but I have already said these are the five possible recommendations that constituent assembly could have given Lordships have seen that much they may

Not be once the Jammu and Kashmir constituent assembly cease to exist the Proviso to article 370 sub article 3 itself is used to exist and the precedent becomes the sole repository of power under article 370 sub article 3 which is coupled with his duty to exercise in the interest of residents of

Jammu and Kashmir without any recommendation it is for this reason that power is conferred upon the highest political executive who is responsible to the parliament who in turn is responsible to We the People of India it is thus clear that Parliament while framing the Proviso merely gave an

Option to the constituent assembly to make recommendation you know till its life but 15 is important this is how the petitioners want your Lordships to read not to withstanding anything in the foregoing provisions of this article on the recommendation of the constituent assembly of the state the referred to in

Clause B the president May by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications the very purpose that the concept of recommendation is provided in the Proviso blood leads to an inevitable conclusion that they wanted it to leave it an option

To the constituent assembly during its life to make some recommendation otherwise that Proviso goes because yes my lords are right I’m obligible if the Proviso become otios the main provision does not become what years then the conditionality attached goes if this interpretation to article 373 is not accepted and the president’s power

Is under article 373 is taken away merely because the constituent assembly has ceased to exist without many making any recommendation it would create a devastating situation which could never have been envisaged by the framers of the Constitution nor ever been convinced they are conceived if the president cannot exercise the powers under Clause

3 it would mean that existence and exercise of power of the president of India provided for in the constitution is dependent upon some decision or lack of it by a different body but can we read a constitution that precedence decision is dependent upon some outside body

Takes a decision or does not take the decision if it takes it’s an option if it doesn’t take you lost your option the president of India cannot be denuded of its power by either they giving recommendation or at least not in absence of recommendation such an interpretation would never be

Given as such contingency could never have been Lord conceived then 17. secondly if we are absence of constituent assembly mentioned in the Proviso to Clause 3 is treated to be rendering the power of President of Indian Indian nugatory redundant and unexerciseable it would mean that by using any provision and article 371 B

And 1D any provision of the Constitution can be amended and applied to the state of Jammu and Kashmir and even the provisions which are part of basic structure please mark this one this is what fell from my Lord Justice called that you are putting it at the higher

Threshold than the basic structure basic structure cannot be altered by Constitutional Amendment but there is no such limitation in 1D they have chosen not to apply some of the fundamental rights meaning thereby a permanent power is wasted on two organs of the state to alter even the basic structure

So far as its application to the state of Jammu and Kashmir is concerned and this is very very serious now of course Melody can never be done now all are at par even if the constituent assembly would have been in existence The Limited role stipulated you know that I have already

Said mother it is only a recommendatory and melodic president could have taken any other decision that may not be correct actually because so long as the constituent assembly it was not recommend day trip look at the way the article is couched provided that the recommendation of The Confident assembly

Of the state shall be necessary Constitution as a supreme document in a democratic country will always base restriction whether it’s a Judiciary whether it’s the president whether it’s a legislature bow down but my my submission institution is governance my limitation and limitations and the use of the words

Recommendation shall be necessary is a clear indication that it’s not merely recommendatory but that there has to be a recommended recommendations read it a slight differently the way my Lord I read it what is mandatory the word shell that you take recommendation the recommendation is not binding otherwise the Constitution would have

Said that it would enact accordingly what is mandatory is taking the recommendation that’s another way of Melody the other part of the argument we understand that the Proviso after the Constitution assembly have done its job it’s no longer applicable but it doesn’t affect the main part the

Main Clause 3 we have ex that’s we have we will examine that up yes now 19 the only constitutionally compliant way of interpreting article 370 to achieve the ultimate goal of bringing the people of Jammu and Kashmir at par with the rest of the country and conferring them with all constitutional

And statutory rights at par with the rest of the country is to either read an unfettered and plenary power of the president of India under article 370 once the constituent assembly series is to exist good uh just download I pointed that out or modifying the 370 subarticle

3 by replacing the successor body we went for the second which according to me was not necessary it could have been done without any recommendation also then power of the president and the sub article 3 is unfettered as article 370 starts with a non-obstantial clause notwithstaining anything contained in

The constitution of India and sub article 3 starts with a non-obstantial clause notwithstanding anything in the foregoing provisions of this article but kindly see there’s more something that might malada throw some light on on the first discussion World which my Lord the chief justice is very enlightened discussion

Plot 370 stats with a non-opstanding laws that nothing in this constitution this is how the 370 would function 370 sub article 3 starts with a non-abstanding clause not withstanding anything in the foregoing paragraphs meaning thereby even 370 can be subjected to 370 sub article 3. you know kindly you know read it once

Again am I am and I do not know obviously because 373 has 370 Clause 3 has a non-abstanding clause which overrides everything else in this cons in this one d right even One D which says that don’t do anything except one and three and there are two non-amstanding Clauses the first

Is not withstanding anything in this constitution and 370 Clause 3 says notwithstanding anything in this article therefore it overrides therefore it’s a power to override even towards one plus one yes plus one two two doesn’t come along One D also look your lot ships very Illuminating there can’t be any doubt about it

Because when three three that would include Clause one there is meaning thereby meaning thereby modification in 370 itself was permissible through C 367 and when you override Clause one the plane intent therefore is that the constitution itself becomes applicable then correct once you exercise the power under three whether

There was a valid exercise is what we have to decide so once you exercise validly the power and the three then the Constitution applies that would be the plain consequence of it the status of constituency what was the status of constituent assembly because nomenclature is a constituent assembly but whether it

Enjoyment I am at the outset I’m not saying that it is subordinate to the constituent assembly for the for the union I mean you can you can’t Elevate that Constitution I must clarify one thing as an officer but I am conscious of the principle laid down in keshwar and bharti

That there is a distinction between constituent assembly and Parliament or constituent assembly and legislature they are not interchangeable that’s why I’m not this uh submission that here constituent assembly for all intent and purpose was a legislative assembly not preparing a document of governance pull out the position as far as the

State of Jammu and Kashmir is concerned even prior to coming into force of Article 1 was who created constituent assembly the Maharaja who signed instrument of accession and surrendered his sovereignty then he issued that Proclamation your Lordships are not aware remembering that now whatever Constitution is frame would

Be binding on yeah he subsequently creates a constituency so he could never have created a constituent assembly which would have a role independent of larger than or completely different from the constituent assembly of which he became an integral part and at that time are not the Jammu and

Kashmir was an integral part of India so the body which was created was known as constituent assembly but was a subordinate creature then will not constituent assembly and the constitution of Jammu and Kashmir can never be put at the same pedestrian as the constitution of India because the

Very birth of the constituent assembly of Jammu and Kashmir was because of article 37. according to you the role of the constituent assembly of Jammu and Kashmir is the role which is created for it by our constitution by the Constitution of India hoping beyond that it cannot be beyond that above that or

Superior to that it is subservient and subordinary it never had original constituent Powers but please see not the Constitution as we understand around the world Lord hears subtle attributes namely it must be a document of governance providing for everything the way melod we have provided this constitution has

Only certain aspects race murder they leave it to the constitution of India for being recognized as a constitution you must provide for a kind of sovereignty I’m not on blood sovereignty means Sovereign it’s not autonomic and sovereignty would mean right to acquire new areas and right to

Seed in new areas right to acquire territory and right to seed territories which we have in article one two three four constitution of India as well none of the attributes of a constitution so to say Lord can be attached to this constitution it was a piece of legislature recognized accepted and known

Till 5th of August and 6th of August 2019 as Constitution but for all intent and purposes my Lord it was not even the Preamble of the Constitution doesn’t say so a preamble of constitution of Jammu and Kashmir doesn’t say so that this is a document which is a

Constitution it merely says Lord please see the Constitution the Preamble of Jammu and Kashmir Constitution it says with a view to further Define our relationship with Union of India it doesn’t say that we are creating a constitution of our governance that’s the only purpose they say we the people of Jammu and

Kashmir with a view to I’ll just read foreign there is another more fundamental reason why uh your argument may be correct which is this look at Section 5 of The jnk Constitution it says the executive and legislative power of the state extends to all matters except those with respect to which

Parliament has the power to make laws for the state under the provisions of the Constitution of India so once the power once the constitution of India defines which is the area with respect to which Parliament has the power to make laws then that is denuded from the jurisdiction of the Jammu and Kashmir

Legislative assembly now we have seen how progressively the Ambit of the legislative domain of parliament was expanded expand for instance initially the entire concurrent list was outside the the power of parliament we had only certain entries in list one the union list I am obligence right subsequently

The concurrent list was brought in once the concurrent list is brought in within the domain of parliament to that extent the legislative domain of the Jammu and Kashmir legislative assembly is denuded then entry 97 was wholly outside the purview of parliament initially later on as we see entry 97 is also gradually

Brought in within the purview of parliament albeit in the context of laws affecting the sovereignty and integrity of India some subjects terrorism so on and so forth therefore it’s very obvious from section five of the jnk Constitution that once the constitution of India prescribes a certain legislative domain for Parliament then

That is progressively denuded from the legislative Ambit of the jnk legislative assembly and that was not fixed as of 1957. another very important feature is that section 5 does not fix the Ambit of the legislative or executive domain of the jnk government and the Legislative Assembly as of 26th of January 1957.

Correct in fact it contemplates that what the constitution of India will prescribe for Parliament will be outside the domain of the of our domain so in that sense it is always intended to be subservient to the constitution of India document which is equivalent equivalent effect and that’s what the 147 makes

These provisions unevendable three and five cannot be amended otherwise what happens but this is amendable this constitution if it would have survived was amendable by the Legislative essay so they can amend the Preamble and academically potentially can become a Theocratic State because secularism was not applicable all right Mr solicitor I

Think we’ve gone through your article e370 note now what uh your constant assembly note now whatsoever now without my uh now you have to deal with the important part about States reorganization and the conversion of yes the state into a UT how do you answer that all right I’ll take a little time

On this one not unrealistic time but there are three four judgments which are direct judgments would bear in mind the difference between our Constitution and say constitution of America where there is a contract between the state and the federal government and that is how they form the United States

Thus federal government doesn’t have the power to even alter the boundaries of the states because it’s a it’s a it’s different and distinct uh there’s no contract between the states and the federal government in the U.S the internet 13 colonies came together internally form a union and they surrendered some powers to the

Union to the union otherwise retaining one of some of the states have Supreme its own Supreme Court Etc but whenever my Lord a nation like us and the federalism which we have accepted which is kind of kind of uh leaning towards unitary uh feature I’m not arguing on that unitary versus

Federalism at times the nation requires to reject the boundaries and the status of their states but there are several considerations and therefore at the outset Melody I may point out that this is a case one of its type which is not to be encountered by the court for example if Gujarat was to

Be bifurcated or madhya Pradesh was to be bifurcated the parameters would be different but when Jammu and Kashmir considering it’s very strategic importance border state history of terrorism history of blood infiltrations history of outside influence outside means outside the country etc etc look there would be several

Considerations in the mind of the girl it we we share border with four at least countries all of which may not be friendly but not to put it mildly that’s what I say are human based on border states is a problem we have many states on the border no history also the history

Country but I have given the details in my affidavit filed long back how much the situation in Kashmir is developing the number of deaths of civilians the number of debts of security forces the number of attacks the number of stone pelting the number of blood every week

Two or three days of herthal paralyzing schools hospitals Banks business houses everything but all these are policy considerations whenever a state reorganization takes place not only there are policy considerations S2 why the state needs to be reorganized but there is always a blueprint as to what the central government would do after

The state is reorganized how to bring Melody in a peculiar facts of this case well not the youth in the mainstream how to ensure that they are gainfully employed how to float certain schemes so that people on the bordering or who are continuous Lord facing the attacks of

Shelling Etc are now getting a sense of confidence that the government has not left us Etc there are several considerations that we will have to start with say Democratic local self-government election so that the people participate in the internal local self-government institutions for their own good the

Source of the power to reorganize which is with the Union of India is the same would differ but uh therefore hey you concede that power to the Union in respect of every Indian state you’re not saying that you should concede that no this only axis exists

For J and K it exists for every index but the power is for all once you once you concede that power to him to the Union in relation to every Indian state how do you ensure that you know the kind of abuse that they apprehended we are

Now not defining it for today but you know that might be the Lord but I hate the revised by some larger bench at some point of time but how do you ensure then that this power will not be that was my worry I share your Lordships

Worry and therefore my Lord I started by saying that your Lordships are dealing with a one of its kind situation which is not going to arise the Lord and if I I point out after one of its kind of situation we have seen the from the northern Boulder Punjab very difficult times

Similarly some states at different times the Northeast all border states one of the states in North is presently presently many many none of them as because of whatever reasons they are the Border we can’t choose our neighbors as they often say we have had problems correct so the

Worry which is Justice expresses is that tomorrow if there is a scenario in order can each of these states face this problem and and why each of these states only Melody it can happen to me for example your borders is what I am testing there are people

Which are on border of other countries where situation may not be very palatable now at least those border states I understood your argument that these border states are category by themselves how do we distinguish between Jammu and Kashmir and any other border states not in any none of the border states

Take Northeastern states or Punjab as your Lordships give an example what possibly is being pointed out you can’t say because it’s a border state so it has to be treated I’m not saying it that’s not the distinction I’m drawing because then it’s a very important there are several border states Gujarat Rajasthan uttarakhand

Uttara can’t imagine I’m not followed kindly don’t misunderstand my submission that because it is a border state it requires different treatment do not kindly see the consistent repeated situation which we are facing since decades on a daily basis is not happening in Gujarat or north east or any other border state

Here is a border state where one of our territory is occupied by Pakistan we have Pok I have given figures what are the debts taking place every year right from 20 years before this is a problem faced by the nation from decades since decades these decisions ever taken as knee-jerk

Reactions there is always but not policy considerations border state this country if this particular uh State being a different kind of a border state is one but there are several considerations and one of the consideration would be how to bring the youth in the mainstream and I’ll

Point out everything was kept in mind and is implemented and what we are seeing today is the result of that blueprint being implemented but after this decision there were elections which took place of District development councils there are 34 000 elected people democracy going to the Grassroots there are

Large number of schemes which are introduced blood the youth which used to be employed by the interest not immunical to India maybe Terror groups of whoever and were paid never gainfully employed you know there is always a blueprint and I’ll be able to show that blueprint

Working but I’m I’m not conscious of the fact that end would not justify the means but and your Lordships can certainly see whether these policy considerations which decided the reorganization were correct or not because the government has acted with a blueprint not only for reorganization what would be done after reorganization

And how Jammu and Kashmir would return to normalcy and I’ll be able to show the steps which are taken right now my Lord I will deal with in three parts without the impression which is given to your lordship is that this has been reduced from state to Union

Territory means there is a downgradation I will I and there are some other factually incorrect statements were made by Lord by one of the council members who argued for reorganization against the reorganization that we lost this there is no representation there is no Consolidated fund of India we can’t

Participate in the election of President our seats in the parliament is going let’s look at it at the first level basic level of textual level of the Constitution let’s go step by step then we’ll go to the last part namely which was what motivated this decision

And there you have said that these are policy considerations look at the nature of the state the history you can’t lose sight of all that we must also deal with it at a textual level thus a does Parliament have the power to convert an existing Indian State into

Union territory it is if it does have that power how do you read article three if you can do the assistant that’s the before the actual question yes there are a lot of specific judicial pronouncements no but we will go to the judicial pronouncements first look at

The well look at that protect the statue may I request your Lordships to have a just bird’s eye view of the reorganization act itself no one has shown that my Lord to your Lordships I want your Lordships to see that you look at the organ reorganization act that we provide us

I’m not reading I’m not reading every part I’m just taking a losses through the titles articles Mr also I I would like to know whether it’s some kind of a what is the nature of exercise of that power is it a permanent exercise or power in a temporary exercise of power what is

No it is let me let me answer that straight no this question was put in the parliament when the reorganization bill was passed I’ll just read Malad the statement of the honorable Minister on the floor of the house so the union territory here is not intended to be a permanent no no and

That’s what I’m not I’m making question number two question number two how impermanent is it is it I understand so that is why but I was going to show to your Lordships the steps taken to ensure that we reach that stage I will show those steps always now let’s go to

Article three articles article 3 formation of new States and alteration of areas boundaries or names of existing States Lord first mother before that please read my Lord explanation one so that your Lordships can read uh in in that context in this article in Clause a to E State includes a union territory

But in the Proviso state does not include a union territory correct so wherever you read state reunitive union territory accept the provincial now let’s read uh Clause a in the light of that yes this very reorganization has been subjected envelope this honorable quota said that it is permissible this reorganization

Has passed the master of your Lordships under three and fourth the Judgment I’ll show you by law form a new state by separation of territory from any state or by uniting two or more States or parts of states or by uniting any territory to a part of

Any state so what I would read Parliament Me by law form a new Union territory by separation of territory from any state or by uniting two or more States we are not concerned or parts of the state again we are not concerned so there is a power of

Having two union territories out of one state then B increase the area of any state diminish the area of any state alter the boundaries of any state but here this would also result the Clause a contemplative situation when the entirety of a state can become a union territory there is there are two

Jammu and Kashmir and ladakh there is nothing but Lord which prohibits Clause a clause a contemplative situation where an entirety of a state can become say more than one Union territory what you’ve done it claim a lot I am not answering that question because that doesn’t arise here yes

In a given case but I don’t want to pitch that high Clause a the problem form a new Union territory will not read it as state form a new Union territory singular will include a plural so form more than one urinary territory no problem form a new Union territory

By doing what by separation of territory from any state territory means geographical area right so from the state of J and K you carve out the territory and form say a union territory of Jammu Kashmir and ladakh but I don’t want to preach that high but otherwise it would not prohibit even a

State being made uni Union territory that’s not the question we are dealing with so the first part of clause a in other words according to you form a new Union territory by separation of territory from any stage and contemplate a situation where you have a larger State and you

Contemplate the equation of a union territory by separating out a territory in this case you separated out a territory to form the union territory of radhak and then the remaining you carved out and said this will be the union territory of they did not amount to reading suppose

You had not carved out like that anyway declared the whole thing as a UT but there is no restriction in doing that I don’t wish to pitch it that I’m going to trust and understand suppose suppose you create a one UT only then it is form a new state by

Separation of territory feminist state that has not occurred no UT has been carved out or by uniting two or more States or part of the state over uniting any of the territory how will it apply suppose you are not crowded out but possibly a possible so then the power would be weak the

Conversion of any state into UT By separation of territory from any state so separation is necessary so if you don’t separate and create you really how do you contemplate converting a state into UT and if I’m just saying for the sake of arguments if that is not possible can you do that by carving out the UT and

Making the other also empty there is no restrictions and this is how much it is understood by our Lordships also because for example Assam tripura in arunachal became UT first and thereafter became state some remained a state that’s the distinction but Assam could have also become a UT there is no restriction yes

I would say less complicated in this nation so therefore to test the proposition I am saying suppose you don’t care about it you decide that the whole state should be YouTube so can you do that and say the NK state will remain as it is boundary but from State it becomes the up

Then we want it we’ll reconvert it back to the state my first reading is separation is necessary that’s my first video that is what is a little because that question we are not faced right now in this question will rise to test it that if you cannot convert a state into a UT

Then can you carve out to UT just fine but in the bargain also say that what I could not do without carving out a UT I can do it now by making both of them because I had a separate reason to carve out ladakh has a separate Duty

That’s why I’m saying this less complicated yes nature carving after here it’s less complicated reducing both parts of the carved out and the pre-carved out so suppose Assam you carved out to UT you say no we carve out a portion of the Assam is UT and also convert Assam into UT

Yes the testing proposition it would be an extreme example but for the purpose of testing there can be two answers a separation would be necessary and if separation takes place Lord that doesn’t take place if one state is declared UT so one state cannot be declared one state possibly under three cannot be

Declared as UT but here it is nobody’s case that we declared ladak has UT to come out of this embargo it’s nobody’s case we had separate reasons other way of looking at it a proper the theme with which you began which is the general situation in Jammu and Kashmir

As we see you know the creation of union territories post Independence you have on the one hand examples like Chandigarh which was carved out during the Punjab reorganization act and remained a union territory it is a permanent Union it was a part of state

It was a part of a state and became a union territory to be the common capital for two sister states that one then you have a progression where certain areas of States became munition of making them States that’s the Northeast parents you have mizoram you have Manipur you have tripura they

Became they were part of states they become union territories but that’s in the process of making them into a stable Administration to become States you can’t immediately make them States Parliament can certainly make that today the situation is not right to make them full-fledged States today we will carve

Them out give them the status of a union territory at a future point of time when Parliament feels that well they now are sufficiently stable institutionally we will make them a space which we did in the Northeast put something perhaps you may look at what we are trying to suggest

Why is it not possible for the union to say that well right now say in a case of a particular state we have such an extreme situation in terms of National Security in terms of you know other uh you want Direct Control that we want for a certain

Stipulated period that a union territory should be created but this creation of a union territory is not a feature of permanence but this shall then again progress back to its position of a state removing the reasons why it was required to become the union not have a

It it controls for a certain stupid period to bring stability because ultimately let’s face it whether it’s a state whether it’s a union territory all of us have survived the nation survives yes the nation itself doesn’t survive there is no question there is no relevance of states or union territories

Should we not give that allowance to Parliament to sort of postulate that for a certain period in the interest of the preservation of the nation itself in the interest of the preservation of the Union itself we want for a certain stipulated period that this particular State should go

Into the fold of Union Treasury on the clear understanding that this shall revert to a position of a state over a period of time you can’t lay down that period in a given case given case it may be six months in a given case it may be one year but that progression I

Think the government has to also make a statement before us and look that progression back to a state has to take place that’s exactly I’ll read but not after the lunch that’s exactly the statement made on the floor of the house I’ll read one of their statement that this is not

A permanent feature after the situation returns to normalcy we want it to become a state again I’ll read one of that statement and then after lunch you would also have like I mean we don’t want to bind you down to uh because we’re conscious of the fact

That this matters of these are matters of natural security we understand that you know ultimately the preservation of the nation itself is the overriding concern but without putting you in in a sense of a buying both you and attorney May seek instructions at the highest level is there some is there some time

Frame and view I’ll take instructions once falling from your chips but I’ll show the statement made on the floor and the efforts made and the statement is once the efforts are fruitful and everything is normal then there is a but I will uh Mr solicitor and Mr attorney

Restoration of democracy is a very important absolutely let’s do it foreign for the first time in the history the local government elections took place 34 000 people are now elected people it is possible only because of therefore the progression will be take your point we take your point that the progression

Has already begun no stone pelting no curfew at least situation is normal but uh no I am not only on Malad election and politics I am on Malad National integrity is there a road map yes yes it is

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