Wishing all the members of the bar are very happy onam happy onam to your Lordships my Lord may I have your lots of permission to mentioned an exceptionally urgent matter in the category mode I’ve made sent the mail yesterday for a demolition today milot elect send the
Mail what time did you send the mail yesterday three o’clock yesterday we have already order must have already been fast in the night because I was doing that until later because we are yesterday possible every male which came there’s an order but I’ll check at lunch very well I’m
Grateful to her I’ll give the details to the course foreign the interpretation of article 370 which according to us is the correct interpretation subject to Muller meeting with your Lordships approval second State reorganization Act foreign what are the parameters of the power of Legislation during article 356 is in force
There are some judgments which would render assistance to your Lordships and Lord I would read those judgments you know before I start with 370 but your Lordships would recall the submission made by some of the Learned council’s method on the other side was that there was an assurance given to the princely states
And you know I’m sitting the statue there was an assurance given to the princely states as a result of which and according to the petitioner in lieu of which they chose to join the union of India and therefore article 370 is the result of that promise which the
Dominion of India then and subsequently Union of India paid and therefore 317 is to be treated as permanent I’ll deal with that contention first because then mother 370 it would be easier for me to persuade your lawsuits The View which according to the government is the correct view of interpretation blood
This question arose for the first time in the case of madhavrao’s India where the government withdrew the previous at the privy purses where a bargain in lieu of which the princely state exceeded to Union of India but there were two states a constitutional Provisions named the article 291 and 362.
Which provided for the previous but the central government exercise the powers and article 366. and deleted the term princely States and construed that since princely States no longer exist there is no question of privy purses or other privileges the definition was princes the Lordships are not required to go
Into that question right now blood this honorable Court allowed that petition 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 and their contentions that this is what has been done by altering article 367.
Yes in our case 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 my mother of India the government repealed or that is a Constitutional Amendment Constitution under 360. correct I’m saying that uh I was just about to answer that it was a constitutional moment but government repeal them so 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 of raghunatharav ganpat Rao versus Union of India Millers the Judgment which your losses would find versus Union of India 1994 supplementary one SCC 191
But will you not also have to look at the original Maduras India it is okay it is discussed here and distinguished because fathers 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 three that’s you 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 to not 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 apart where will we find that in the case law compilations volume seven of case law compilation PDF page 537 all right I’ll read relevant partner 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 correct 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 but uh let us see how 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 another background uh the two repetitions your Lordships paid 540 till PDF 543 Fellowship gets done yes I understand
These two repetitions call in question the Constitutional validity of the Constitution 26th amendment one second one second foreign validity of the Constitution 26th amendment act internally 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 earthworm State and also continue to pray pay preview purses 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 same instrument the petitioner
Accepted the matter specified in schedule thereto 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 dominions I am reading page 543. for paragraph three at classify classical
Just one line by the side instrument by the seed instrument court is referring to the instrument of accession signed by every ioa instrument of accession or maybe he’s the ancestor by the seed 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 transferred 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 okay there’s a little bit of a background about kurundwad State Uruguay is a very small town very close to sangli and kurun Dwight is on the banks of the river Krishna and a very famous there’s a place a place of pilgrimage called
Lots of pilgrims come from across the country and once in a year the the Krishna will rise and sweep the whole town clean you know and the lands are extremely fertile because of the Krishna River uh right on the banks of the uh 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 but now your losses may come to page 548 the arguments here are two constitutional Provisions were dispensed with by where repealed by way of a definition clause
Not like unregular interpretation Clause but here kindly they are one factor in mind 370 sub article 3 has an inbuilt extinguishing provision 370 sabbatical three 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 two three six things 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 smaller 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 item 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 integrity 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 enshrine 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 Earth 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 then 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 Lord and his topic
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 found by our arguments when yes 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 that guarantees and Assurance is given to the rulers under the those agreements then your office May kindly come to Pera 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 effort 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 our constitution provide article 363 according to him the Covenant the covenants where 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 suffrage democratic form of government Etc in this context relations 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 accession 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 are 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 serious threat of Law and Order In
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 may not be honorable Court discusses obviously was cited that 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 till 13. on May 14 1970 the Constitution 24th Amendment bill for abolition of the abosid preview purse 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 368 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 Malad except in 370 the vulnerable president virtually declared two Provisions to be nality the presidential order periphati 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 11-jet 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 rich 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 there upon they started getting preview purses but kindly come to Pera 77 at page 562. respond may not help a lot uh assist your Lordships without either 77. according to Mr Surah that’s one where Lordships would marvelous
Um uh 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 recognize in that he
Ard blood trees this guaranteed them not only preview persists some privileges not all states were divided into a gun-solute States somewhere 21 Guns salute some ways the smallest was one gun salute did it 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 none no because at the time when the agreements were signed they won’t be uh thereafter the Constitution was made and the president The Honorable president was elected a practitioner 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 foreign Me yes para 75 75 therefore there cannot be a melodities on page 560. possibly that’s what Malad The Honorable what is reading therefore there cannot be any justification in saying that guarantees and Assurance is given to the rulers where Sakura said in that article 291 and 362 reflected only the terms of the
Agreement and Covenants in fact as soon as the Constitution came into Force the memorandum 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 and 362 in the Constitution the agreement and Covenants 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 open uh 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 ascent 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 three his mother house India and please sing a lot 79 Mr Didi taku without the father of my Lord Justice my Lord the Chief Justice in addition to the 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 I can skip that and thereafter I may directly come to 88 at page 563. Mr elotics my Lord Justice
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 madhavrao observing is dealt with mother 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 that judgment the 26th amendment was passed by parliament in exercise of its constituent powers the precedent exercise executive power which he did not possess you know just to contrast article 370 has a constituent power in the precedent and the sub-article 3 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 elapsed 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 just says please continue I am sorry I uh three 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 madhavrao too 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
Said 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 nugatory 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 objects and 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 previous this amendment was brought now 92 is very important but which would also assist your losses from 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 privy purses 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 above 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 Pro provision which concept or which
Institution in the constitution is not an integral part of the Constitution he will not find an answer to say that 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 justicea constituted the anchor of the petitioner’s argument relating to the
Basic structure well not 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 madhav Rao but now
Kindly come to pay Pera 96 at page five double six um 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 incompatible 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 suffrage
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 preview 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 inter 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 breach
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 one 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
Tie and owing but one Allegiance devotion loyalty Fidelity to The Sovereign Democratic Republic that is India well thereafter it is also worthwhile to take note of the historical process of States integration not your losses May directly can come to one zero nine at page 569 107. on a deep country my Lord
Beta107 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 measure 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 tribals 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 change or altered by the impuned 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 yes 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 a lot 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 removes it furthers the basic structure and it enhances the equality and fraternity which is the Bedrock of the Constitution yes in this view look it in my respectful submission may not be necessary to re read mother of sindhya gentlemen if your lordship would wish me Lord I can assist
Your lordship with that but we will not ultimately read the same paragraphs based upon which mother it is distinguished 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 Aid and advice and the government of the state again Aid an advice
But please please Lord appreciate this two individuals technically the Prime Minister and the chief minister of the state whoever is can make any change in make any alteration can choose not to apply any provision and like 35a can create a constitutional provision only applicable to Jammu and Krishna
That provision is exercised now as a last exercise to ensure that it never happens 367 explanation is added I’ll come to them of this but my next friend wants me to do this foreign just note the paragraphs Pera 151 152 and 118 minutes one eight zero one one eight hundreds it is
Two zero six 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 you a lots of time alone why if possible will not conclude at one o’clock good in madhavra house India Malad we will be relying upon 97 109 119 one two zero one two five one two six one four three
And 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 distinguished 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 and 367 mechanism is your Lordships have seen but so far as 370s that the a presidential order was issued because if you see the provisions of
Article 366 is 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. yes 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 proposed amendment didn’t pass master in the rajya Sabha a presidential order is issued purportedly under clause 22. and the object was now we are der
Recognizing you if you are being re-recognized you lose the benefit of your privy person article 290 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 rash 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 has been 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 a main 370 which has been done consistently and Affirmed biologics well 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 a lot on Fifth and 6th of August was that using the mechanism of 367 the constituent assembly was changed it is not worse there blood there is a 67 mechanism
Which which was used earlier to for instance substitute you know the southern area Etc that was with the concurrence of the assembly no only once that was three that was 370 sabbatical three this this will not use of 367 is not only will not see the distinction
What was done with the concurrence was under 370 sub article 3. constituent assembly was there in 1952 it recommended and the change was made this time it is under 371 d B foreign to my Lord’s satisfaction s may come to that I’ll show only two Provisions 371 d
A lot of ships 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 to 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 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 one D all rest all under one including this one with the Congress of the government concurrence 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 about 6th of August because subclass 3 only deals with 370 itself itself not
Other yellow ships 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 therefore in that sense it freezes the provisions of article 370
In relation to the state of Jammu and Kashmir now what it 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 Z 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 we are looking at it as a matter of first impression the first impression can you alter the import of a provision of article 370 itself by process other than three because what
You have done essentially here is that you have used 367 to amend the Proviso to 370. 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 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 question is by making the amendment in 366. by creating constituent 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 Repose I mean the argument on the other side is this
That you can take recourse to Clause d of subclose 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 can you take yes it doesn’t say so it’s very clear it says
Other means I accept one and three seventy 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 are 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 where is the purpose of 371d 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
Look I can assure my learnings yes but just 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 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 here let’s sit down and do it I will put it slightly differently I’ll put it differently the interpretation which are Lordships are not prima facie now testing
It no 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 thereby a lot 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 may not 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 same state shall be limited to those matters in the union list and concurrent list your lawsuits have seen one of those the presidential succession 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 have 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 May by order specified a lot other
Provisions would mean other than B yeah just stopping you for a minute put the Legislative Assembly make a recommendation in terms of 371 a saying that under 367. you equate consumed assembly with legislative assembly under 37140 370 what’s up could the Legislative Assembly make a recommendation saying if it is amendment it cannot
If it just think about it and then answer but the legislative assembly have make a recommendation to the parliament please remain article 367. let me give it a thought and respond to that that I I understand the heart of the matter a lot shifts Lord discussion but not ease driving that any
370 see 367 use which has the impact of altering 370 itself 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 it is concurrence the only difference yes this is very one 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 so there is a difference between concurrence and recommendation correct course 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 the Council of Venice Council of ministers if it is there otherwise powers are exercised by the governor and that’s why my Lord I pointed out that there are several exercise of 371 d when there was a precedence rule with
Concurrence of the governor at least your provided yesterday yes queries below absolutely I’m not on the point I’ll I’ll respond let me give it a thought but the real question would be you have already responded but 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 hidden advice otherwise the governor and during Governor’s rule 371 D is used to change 367 also yeah to not change change is a correct incorrect word I have 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 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 the 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 look like suppose
367 had been amended in terms of 371 1D 317 1D 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 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 one of your 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 load uh touch upon any other provision if in F 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 subarticle 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 the constituent assembly goes without making any recommendation and therefore leaving it to the absolute discretion of the president all right solicitor you said that sir the president is recommendation it’s a recommendation it’s not you you
See the words you used in the Proviso provided that the recommendation of the security assembly of the state referred to in Clause 2 shall be necessary yes but why I say this Lord 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 mean 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 that let this be debated in both the houses of panu and rajya Sabha is 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 not even a 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
The temporary provision delete article three now we don’t want anybody’s power to abrogate they could have said even C can be deleted suppose one of the constituent assembly were to say they delete one C that Article 1 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 but Section 3 of The Constitution says no we are an integral part of India they never say that precedence power and the three we recommend being either diluted or taken away
They never wanted Clause 3 to die that’s very clear morning uh so we’ve covered now the first point the interpretation of 370. 370 there are some points but if a lot of permit so on 370 uh Mr solister why don’t you summarize in three or four propositions what’s the heart of yourself
Permits but I knew Millard 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 shifts time also in my Lord you have it here if I can be permitted I’ll just
Quickly go for five minutes and we can we are done yes you can say is my Lord it declares it to be temporary your Lord says may not read anything a lot it country 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 Lord second I have said but I have already said and this is not something very very serious look at the width of the power two individuals in practice and legally speaking two organs namely the precedent 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 happen not 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 such a drastic provision could never have been intended to remain perennially permanently then 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 a 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
There may not be a lot of ships 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
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 kindly examine it from the People Single then 370 is interpreted the way petitioners interpret really 71 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 the application of the Constitution of India given by we the people would either not apply fully or would apply but I’m on 10 point number ten Melody I
Would request if your Lordships Can Read With Me the petitioner’s 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 of concerns a federating unit it is of strategic significance what I have pointed out Lord article sabbatical three 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
A lot of ships have seen that 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 president becomes the sole repository of power under article 370 sub article 3
Which is coupled with his duty to exercise in the interest of residence 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 be 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 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
Lord 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 course will not govern the substantive cannot govern yes my lords are right I’m obligible if the Proviso become otos the
Main provision does not become what use then the conditionality attached goes friend is right 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 meaning 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 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 President’s 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 in 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 India 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 palette 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
You can if 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 it 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 Malad president could have taken any other decision that may not be correct
Actually because so long as the constituent assembly it was not recommend a tree look at the way the article is couched provided that the recommendation of the constituent assembly of the state shall be necessary Constitution as a supreme document in a democratic country will always face restriction whether it’s a Judiciary
Whether it’s the president where is the legislature I bow down but my submission is governance my limitation shall be necessary is a clear indication that it’s not merely recommended tree but that there has to be a recommended recommendations read it a slight differently the way Lord I read it
What is mandatory the word shell that you take recommendation the recommendation is not binding alone 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 constitute assembly had done its job is no longer applicable but it doesn’t affect the main part main Clause 3 we have ex that’s we have we’ll examine that out 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 and article 370 once the Constitution the assembly
Series is to exist just download I pointed that out or modifying the 370 sub article 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 the 10th power of the president and the
Sub article 3 is unfettered as article 370 starts with a non-obstantial clause not withstanding anything contained in the constitution of India and sub-article 3 starts with a non-obstantial clause not withstanding 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 by Lords the chief justice is very enlightened discussion what 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 loss not withstanding anything in the foregoing paragraphs meaning thereby
Even 370 can be subjected to 370 sub article 3. you 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 concept in this one d right
Even One D which says that don’t do anything except one and three seven and there are two non-amstanding Clauses the first is notwithstanding 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 Clause one
Plus one yes plus one two two doesn’t come around One D also look yeah lot ships very Illuminating there can’t be any doubt about it because when threesome that would include Clause one there’s no meaning thereby meaning thereby modification in 370 itself was permissible through C 367 and when you override
Clause 1 the plane intent therefore is that the constitution itself becomes applicable then correct once you exercise the power under three whether there was a violent exercise is what we have to decide but once you exercise validly the power under 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’s enjoy but I am at the outside 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 constituent Hashem I must clarify one thing as an officer of the Court 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 follow 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 ships are not away remembering that now whatever Constitution is frame would be binding 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 370 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 Lord please see not the Constitution as we understand around the world Lord have 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 responded 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 new areas right to acquire territory and right to Siege territories which we have in article one two three four constitution of India is 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 says that this is a document which is a constitution it merely says Lord please
See the constituent 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 javu 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 subject 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 uh of our domain so in that sense it is always intended to be subservient to the constitution of India and not really a document which is one equivalent equivalent effect and
That’s what the 147 makes these provisions unremendable 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 lesson 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 history 70 note now what uh your constant assembly note now whatsoever now but not 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 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 does 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 in turn they 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 a nation like us and the federalism which we have accepted
Which is not a 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 Viber 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 but there would be several considerations in the mind of the girl but it’s 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 argument 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 what are 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 plot every week two or three days of herthal paralyzing schools hospitals Banks business houses everything but all these are policy considerations you know 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 blood 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 holy exists for jnk it exists but the power is for all once you once you concede that power to um 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 I hate this revised by some larger bench at some point of time but how do you ensure then that this power will not be used in case of other stimulus 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-x kind situation which is not going to Arise My Lord and if we have seen the on the Northern Malta Punjab very difficult times similarly some states and different
Times the Northeast all modest States one of the states in Northeast presently presently many many none of them as because of whatever reasons they are the model you can’t choose our neighbors as they often say we have had problems correct Justice expresses is that tomorrow if there is a scenario in order
Can each of these states face this problem and and why each day you are argument from the borders is what I’m testing see there are people states which are on border of other countries where situation may not be very palatable well 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 I’m grateful because in any none of the border states take well at 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 uttarakh and don’t misunderstand my submission that because it is a border state it requires
Different treatment Lord 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 or we
Have Pio game 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 are never taken as knee-jerk reactions there is always but not policy considerations border state this continue this particular
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 a lot large number of schemes which are introduced look the youth which used to be employed
By the interest not immunical to India maybe Terror groups or whoever and we’re paid to 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 but what the impression which is given to your lordship is that this has been reduced from state to Union territory means there is a down gradation I will I and you know there are some other factually incorrect
Statements were made by Lord by Mr 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 look at it
At the first level basic level a 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 specific judicial pronouncements no but we will go to the judicial pronouncements may I request your Lordships to have a just bird’s eye view of the reorganization act itself to your Lordships I want your Lordships to see that you look at the organ the
Organization act that will provide us I’m not reading I’m not reading every part I’m just taking a lawsuit through the titles that’s worrying us let’s look at the source of the power kindly come to another article 3 just in a minute or so yes is it a permanent exercise or power
In a temporary exercise of power no it is let me let me answer that straight look this question was put in the parliament when the reorganization bill was passed I’ll just read my Lord 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 and question number three when are we going to have elections 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 all right 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 malware explanation one so that your loveships can read 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 red unit Union territory except the program so 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 Parliament May 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 can be increase the area of any state diminish the area of any state alter the boundaries of any state but here this would also result this Clause a contemplate a situation when the
Entirety of a state can become a union territory there is there are two Jammu and Kashmir and ladakh and there is nothing which prohibits 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’m not answering
That question because that doesn’t arise here you argument that because of exploration we will have to read you learn territory yes in a given case but I don’t want to pitch that high the 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 Union 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 a territory and form see a
Union territory of uh Jammu Kashmir and ladakh but I don’t want tomorrow to preach that high but otherwise it would not prohibit even a state being made uni Union territory but that’s not the question we are dealing with so the first part of clause a in other words according to you form
In New Union territory by separation of territory from any stage and contemplate a situation where you have a larger State and you contemplate the creation of a union territory by separating out a territory in this case you separated out a territory to form the union territory of
Radha and then the remaining you carved out and said this will be the unitary of amount to reading suppose you had not carved out like that anyway declared the whole thing as a UT 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 up or by uniting two or more States or part of the state over United in any of the
Territories how will it apply suppose you are not crowded out a possible so then the power would be the conversion of any state into UT By separation of territory from any state so separation is necessary so if 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 UT there is no restrictions and this is understood by our Lordships also because for example Assam tripura and arunachal became UT first and thereafter became state Assam 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 you you decide that the whole state should be YouTube so can you do that and say JMK state will remain as it is less boundary but from State it becomes the up
When we want it we’ll reconvert it back to the state I will not my first reading is separation is necessary that’s my first feeling that is what is a little because that question we are not faced right now in this that if you cannot convert a state into a UT
Then can you carve out a UT it is 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
Sure a decision that’s why I’m saying this less complicated here it’s less complicated parts of the carved out in the pre-carved out so suppose Assam you carved out to UT did you say no we carve out a portion of the Assam as UT it also convert Assam into UT that’s the testing population
It would be an extreme Lord example but for the purpose of testing there can be two answers a separation would be necessary and if separation takes place Lord that does not take place if one state is declared UT so one state cannot be declared problems under three cannot be declared as UT but
Here it is nobody’s case that we declared ladakh has UT to come out of this embargo it’s nobody’s case we had separate reasons 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 I can remain the 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 existing States became union territories in the progression of making them States that’s the Northeast foreign 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 but 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 to 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 a control for a certain stipulated 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’s 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 a 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 I had looked 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 or test it 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 these are 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 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 my Lord there is a but I will uh Mr solicitor and Mr attorney restoration of democracy is a very important absolutely that’s good foreign for the first time in the history the local government elections took place 34
000 people are now elected people which is Possible only because of therefore the progression we take your point we take your point that the progression has already begun yes 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 mother National integrity is there a road map yes it is but the instructions are that UT is not a permanent feature but I’ll make a positive statement tomorrow that is day after because I’ll have to meet Mother 24 questions yes yes that’s what we have understood
But we’ll meet uh personal element and we will make a statement but I must tell you Lordships followed so far as ladakh as Amino I have already already pointed out that local body in terms of District development council elections took place in 2020. and so far as ladakh is concerned
It consists of two units units what is a lose word I am using that is Lord election to ladakh autonomous Hill Development Council is held in October 2020 for 2016 seats and for kargil it is going to be held on 10th of September 23. so ladakh election would be over
But I name a lot your Lordships need not open my Lord it is volume 10 document compilation volume page 763 in compilation volume volume 10 page 763 that I am reading core lines from Lok Sabha and four lines from rajya Sabha because something said on the floor of the house
Has its own sanctity so dear lordship session.ph 763 volume 10. because the honorable home minister introduced the bill and it was debated it was debated for birthdays uh this is Lok Sabha this one this is Lok Sabha what I am reading at page 763 is Lok Sabha uh all members participated in the
Debate and relevant is the last para objects is foreign It’s uh just read the last three words again uh is it says I just read messages right Pi 1 2 is this question arose but somewhere Tenth Line from the top it starts with Diamond Page 162. I’m sorry page five one two yeah I looked after that after the English words constitutional position
Foreign etc etc is what’s the date of this 5th of August 2019 when reorganization bill was uh being considered it may quickly melodic lawsuits through the judgments on article 3 4 whichever way Melody Lordships would like me to globalize I’ll read but not only cite few judgments all right let’s
Reorganization and 350 all right 162 monologue ships have great compilation my written submissions volume three uh combined reconstruction my lords have seen article 3 and article four the respectful submission and this will not be during discussion with Mr vivedi my Lord we came to know that the distinction is this is the only
State where it was not at par with the rest of the country and now it is becoming the part that is not the distinguishing feature which would never arise in case of any others now Lord this uh UT mother of Jammu and Kashmir came up for consideration of this honorable
God at page 162 the Judgment I closed the compilation volume so I’ll have to research your volume three volume three is which were really yeah my return submissions but what I’ve done is so that your lawsuits may not have to shuffle through the Judgment values I have quoted the paragraphs I am relying
Upon verbative 85 onwards yes I am skipping the paragraphs I’m just reading the judgments I’m just locating I have the page that’s yes right right I’ll read the judgments below the Judgment of this in case of Jammu Kashmir the present uh reorganization article 3 provides that Parliament May by law form new States
And alter the areas I’m sorry 89 I am sorry yes article 3 provides that Parliament May by law form new States and alter the area’s boundaries or names of the existing Siege the explanation one provides that in Clause is a to e an article of article 3 a state includes
Union territory thus explanation one makes it emply clear that the power of Parliament and the Clause a of article 3 to make a law to form a new state or to alter a boundary of a state includes a power to make a law to form a new Union territory explanation to clarifies that
Power conferred by Clause a on Parliament to enact the law to fame a new state includes a power to form Union territory by uniting parts of any state or Union territory to any other state or Union territory do not kindly come to para 26 below that page 163
On conjoint reading of article 3 4 and 239a we find that Parliament by making a law can convert an existing state into one or more union territories B Parliament is empowered by law to create a body of legislature for the union territories of puducherry and Jammu and Kashmir accordingly subsection 2 of
Section 14 of Jammu and Kashmir reorganization act provides that there shall be a legislative assembly for Union territory of Jammu and Kashmir and see even if law made by Parliament creating a body of legislature for union territories of pondicherry and puducherry and jnk has the effect of amending certain parts of the
Constitution it shall not be deemed to be an Amendment of the Constitution for the purpose for a different Lordships is holistically article 3 and Article 4 and I am saying this academically I am not pitching it for this particular case but there is nothing if we read as a common
A scheme of Malad reorganization that one state for a good reason the threshold of your lordship satisfaction would be higher can be converted into YouTube because forces some incidental Provisions can even include something which may otherwise amount to Amendment but would not be treated as an amendment under 368.
I’m skipping at your Lordships one and two were made applicable what happened was uh during the first arguments of the petitioners they pointed out the sex article 3 as applicable to the state of Jammu and Kashmir which provided that nothing can be done without consent of Jammu and Kashmir assembly
Without pointing out to your Lordships that before this reorganization act was placed before the house the entire Constitution was made applicable therefore their provision goes now what ex the article 3 your Lordships have applied Malad when this reorganization took place but I I hope I am able to make myself clear what was
Shown was the earlier Constitution as applicable to Jammu and Kashmir article 3 as applicable to Jammu and Kashmir which provided for a mandatory consent but first the President issued 272 co272 applied the whole Constitution meaning thereby what we are reading now as article 3 was article 3 when reorganization took place
What’s the date of reorganization what’s the date of reorganization it was passed on 6th of August of doing both our system Lord this is perubury is considered a lot of chips are available has no application a part of India was being seeded to some other country
That was the concept that was the fact situation arising in berubury there was a mistake in berubury which five judge bench in Ram Kishore notes and corrects and thereafter there is an amendment to the Constitution knowing that now there was a mistake in biruguri and I’ll show please come to
Para 91 at page 164. only but not the relevant facts I have quoted and I’ll read this is a five judgment speaking to my Lord Justice before proceeding to deal with the points which have been raised before us by Mr Mukherjee on behalf of the appellants it is necessary to advert to
The opinion expressed by this court in Ray the berubury union and exchange and enclaves so and so the Peru Berry Union at Pera so and so with a view to correct an error which has crept into the opinion through inadvertence on this occasion on that occasion it was urged
On behalf of the Union of India that if any legislative action is held to be necessary for implementation of indo-pakistan agreement a law of parliament relating to article 3 of The Constitution would be sufficient for the purpose and that it would not be necessary to take any action in the
Article 368. this argument was rejected in dealing with discontention it was observed by this court that the power to acquire new territory and the power to see the part of the national territory where outside the scope of article 3C of the Constitution of India this court
Then took the view that both the powers were essential attributes of sovereignty and vested in India and vested in India as an independent Sovereign Republic while discussing the significance of the several Clauses of article 3 in that behalf it seems to have been assumed that union territories were outside the
Purview of the state Provisions in other words the opinion proceeded on the basis that the word State used in all the said Clauses of article 3 did not include the union territory specified in the first schedule apparently this assumption was based on the distinction made between the two categories of territories by
Article one three in doing so however the relevant provisions of the general Clauses act were inadvertently not taken into account under Section 358 B of the sadak stayed as respects any period after the commencement of the Constitution Seventh Amendment act shall mean a state as specified in the first
Schedule to the Constitution and shall include a union territories this provision of General Clauses act has to be taken into account in interpreting the word state in the respect of Clauses of article 3 because article 367 1 specifically provides that unless the context otherwise requires the general Clauses that shall subject to any
Adaptations and modifications that may be made there in under 372 apply for the interpretation of this constitution as it applies for interpretation of an act of legislature therefore the Assumption made in the opinion that article 3 in its several process does not include Union territory is misconceived and to
That extent the incidental reason even in support of the main conclusion is not justified but after this judgment 18th Constitution amendment is made judgment is my Lord uh 27th August 66. I’m sorry the judgment is 1965. what is the date in 1965 but I’ll just give me a minute
The amendment is 27th August 68. 27 dollars 66. 27th August 66. and just give us by which my Lord this explanations came to be added right that state includes UT would like to see where it is uh PDF volume well I’m sorry volume six case compilation volume six for what is Judgment
Yesterday just give us the date 11th August 1965. all right this is kindly directly go to prod your lot ships have seen page 167 the view of Justice Khanna Lord and thereafter my Lord I read Mangal Singh little later because it’s not quoted here please come to 169 page 169.
State of West Bengal and redone with the highlighted part now Lord I am confining to highlight it page number is not mentioned 371. 169 citation 371 look this is a judgment by six honorable judges pension the legal sorry legal sovereignty of Indian nations the judgment is not state of West Bengal
Versus Union of India yes legal sovereignty of the Indian nation is vested in the people of India who as stated by the Preamble have solemnly resolved to constitute India into a sovereign Democratic Republic for the objects specified therein the political sovereignty is distributed between as well as we will presently demonstrate
The union of India and the states with greater weightage in favor of unions kindly come down below to Pera 35 of the Judgment only the underlying portion there are no independent constitutions of the states apart from the national constitution of Union of India chapter 2 part 6 from article 152 to 237 deals
With States the power of legislature of the states the power of executive and Judiciary what appears to militate against the theory regarding the sovereignty of the state is the wide power with with the parliament is invested to alter the boundaries of states and even to extinguish the
Existing of a state existence of a state there is no constitutional guarantee against alteration of boundaries of the state by Article 2 of The Constitution the parliament May admit into the union or establish new States on such terms and conditions as if things fit and by article 3 the parliament is by law
Authorized to form a new state by redistribution of territory of a state or by uniting two or more States or parts of states or by uniting any territory to a part of the state increase the area of any state diminished Etc but then four lines from thereafter Parliament the word starts with Parliament
Parliament is therefore by law invested with alter authorities to alter the boundaries of any state and to diminish its area so as even to destroy a state with all its power and authority that being the extent of the power of parliament it would be difficult to hold that the parliament which is competent
To destroy a state is on account of some assumption as to Absolute sovereignty of the states incompetent effectively to acquire by legislation designed for the purpose of property owned by the state for government purposes then next is malnut again is five judgments this is different but not uh that 1918 judgment that is
Freedom of speech and expression Lord here abuse blood the assemblies views were taken from Bombay assembly for a b c d e areas and when the reorganization ACT I’m sorry Act was passed Lord it was some additional areas where also therefore that was under challenge we proceed now to consider these
Contentions it is necessary to State at the outset that our task is to determine on a proper construction the true scope and effect of article 3 of The Constitution with particular reference to Second condition laid down by the Proviso they do we bring it to our task
Such consideration as our German to the interpretation of an organic instrument like the Constitution but it will be improper to import into the question of construction doctrine of democratic theory and practice obtaining in other countries unrelated to The Tenors even words of the provision which we have to
Construe but kindly come to the later partner article one of our constitution was somewhere in the Tenth Line from bottom of 170. does your lots of get money yes article one of our constitution says that India is a union of states and the states and the territories thereof are
Specified in the schedule there is therefore no difficulty in understanding what it means meant by expression state in article 3 it obviously refers to states in the first schedule and the legislature of State refers to the legislature with each has under considered Constitution that being the position we see no reason for importing
Into the construction of article 3 any Doctrine consideration of the sanctity of Rights of states or even for giving an extended meaning to the expression State occurring therein none of the constituent units of Indian Union where was Sovereign and independent in the sense the American colonies or swiss
Cantons where before they form their Federal unions the constituent assembly of India deriving its power from The Sovereign people was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirement of the Indian people as a whole unlike some other Federal legislatures Parliament
Representing the people of India as a whole has been vested with the exclusive power of admitting or establishing new States increasing or diminishing the area of an existing state or altering its boundaries the legislature or legislatures of the states concern having only the right to an expression
Of views on the proposals it is significant that for making such territorial adjustment is it not necessary even to invoke the provisions governing Constitutional Amendments only one line my Lord I’ll now coming down to one line kindly without appreciate it says India is an indestructible Union of destructible units foreign
Law of a lot I am pointing out I am not preaching that argument that I will not we have what we have done is as a temporary measure as it is clear from day one one the Parliamentary debate that we have created two units namely two union territories and one
Union territory is which legislature the power wasted with the power of police with the center because of the very peculiar nature of the situation arising since decades rest everything they have what state has pointed out two instances where it has happened first was Punjab that was a very peculiar problem Punjabi sugar
Movement Etc more or less everybody was agreeable probably could not muster through the Legislative Assembly no there was no assembly it was during Governor’s rule no I understand that but earlier it could not process through the division of you know of Punjab between haryana and then parts
Of Punjab going to Union territory first even Himachal Pradesh and master Pradesh itself coming becoming a state and then probably coaching and traveling core is another example which is given the third is this this is the way uh because once you suspend the Proviso and virtually the power of the state
Governments are taken away the representation of the state is represented by the will of the people of a larger country can lead to that is that is Lord touched upon in bhumai Sr bomai Lord please come to page 173. even this question was not considered in
Oh my judgment we read my judgment for a different issue but this was also one of the consideration one of the factors which fell for consideration of the Court page 173 where the court considers what is the scope and MBT of the states views rather than paraphrasing Lord kindly see Assad bromide para108
Melodist is called page 173 I have quoted Sr bomai but last four lines on that Pera but I’m trying to rush murder so that I can finish the lordship gets on a conjoint reading minutes on a conjoined reading of these articles it becomes clear that Parliament has the
Right to form new States alter existing States or the name any existing state thus the Constitution permits changes in the territorial limits of the states and does not guarantee their territorial Integrity even names can be changed under Article 2 it is left to Parliament to determine the terms and condition on
You it may admit any area into the union or established new States in doing so it has not to seek the concurrence of the state whose area boundary or name is likely to be affected by the people all that the Proviso to article 3 requires is that such cases the presidential
Refer the bill to the legislature of the state’s concern likely to be affected to express their views once the views of the states are known the states are known it is left to Parliament to decide on the proposed changes please mother note Parliament can therefore without concurrence of the states or States
Concern change the boundaries of the state or increase or diminish its areas or change its name these Provisions show that in the matter of constitution of States Parliament is Paramount this scheme is substantially this scheme substantially differs from the federal setup established in the United States of America
It is in substance in my respectful submission said that it’s a provision which is strict compliance is not existed upon provided there is a broader compliance namely the entire nation considering that this affects the nation as a whole this situation does not affect the state or life or neighboring states only
This affects the entire nation and therefore including representatives of Jammu and Kashmir Parliament and rajya Sabha I mean Lok Sabha and rajya Sabha have representatives of Jammu and Kashmir so these are my judgments on three and four would your loveships like to have a bird’s eye view of the ACT
Volume 3 documents page one one two it I won’t take more than about five minutes to do this I am not tempted to show this because nobody has shown which could not have been my objection but without showing several statements were made that we are reduced to nothing everything is taken up
Their formula decrease my duty to point out just bird’s eye view mirror page one one two three volume three document volume three minutes so please see definition assembly constituency is defined to see it has all attributes of a state it is state with UT with legislature but all attributes of a state
Assembly constituency ownership gets 2C M then Election Commission 2D then two G minor on the next page 113 2G legislative assembly J population ratio and Union territory please may not see the formation of Union territory of ladakh without legislature then will not formation of Union territory of Jammu and Kashmir with legislature
Curriculums then come to my Lord page 114 no reduction they say that our representation in Parliament is reduced on and per attainment on and from the appointed day there shall be allocated five seeds to successor Union territory of Jammu and Kashmir and once it to Union territory of ladakh in the house
Of people earlier they had six now it is five plus one six was that we have lost representation in Parliament then somebody said that our seats are left reduced but Mr Navidad said the seats are reduced it was sixth in total now it is five Jammu and Kashmir and one ladakh
In my note 12. every sitting member of the House of people representing a constituency which on the appointed Day by virtue of the provisions of section 10 stands allotted with or without alteration of boundaries to the successor Union Union territory of Jammu and Kashmir or Union territory
Of ladakh as the case may be shall be deemed to have been elected to the house of people by that constituency as so allotted so they continue as members then 13. all and from the appointed day the provisions contained in article 239a which are applicable to Union territory
Of puducherry shall also apply to the union territory of Jammu and Kashmir so my Lord this is amending afternoon this is amended what is placed is not Amendment I’ll just place your lordship copies of the amended act I am not reading from the segment I’ll give copies to the other side also because
This has all the acts which are made applicable which were not applicable Central X including beneficial legislations and amend suitable amendments in the local X local X are retained if they are not repugnant to the Central Lakes with suitable modifications making them Constitution compliant well this is amended there are 30 section 13
Because the argument was that now we can’t vote mlas of Jammu and Kashmir cannot vote at page 10 foot of the page section 13 my Lord Justice page 10 right side a left side top is the pagination section 13 on and from the appointed there the provisions contained in article 239a or
Any other article contrary reference to elected members of legislative assembly of the state which are applicable to Union territory of puducherry shall also apply to Union territory of Jammu and Kashmir so they can vote but not wherever MLA is required to vote in for example the example given by petitioner was presidential election
Then 40 minutes section 14 there shall be an administrator appointed under article 239 a of the Constitution uh from the U for the union territory of Jammu and Kashmir and shall be designated as lieutenant governor for a total number of seats in the Legislative Assembly would be 107 then but
Every entry except police is not now for obvious reasons but I need not even explain why policies directly under the control of the center and plus six minutes this comes for the first thing fourteen six this was never there seeds shall be reserved for scheduled cast and scheduled drives in the
Legislative assembly of the Union territory of Jammu and Kashmir this has come for the first evidence then come to my Lord section 16. Lord earlier only permanent residents could contest elections under Section 16. I am not inviting a lawsuit’s attention to read it now you should be a
Citizen of India he need not be a permanent resident for being qualified to be elected not like any other statement Lord please come to the relevant uh entry relevant section is at page 119 bottom section 32 extent of legislative power but subject to my answer in your
Lordships about the election on the day after when in the morning but 119 of your compilation or no the ACT volume three document volume three numbers fellowships have 32. subject to the provisions of this act the Legislative Assembly may make laws for the whole or any part of the Union territory of Jammu
And Kashmir with respect to any of the matters enumerated in state list except the subjects mentioned at entry one and two namely public order and police respectively or the concurrent list in the seven schedule to the constitution in so far as any such matter is applicable in relation to union territories
35 inconsistency between the laws military is a provision special provisions land is given to the uh State legislation land is not given which Provisions is land taken away not here not here here only police and public order not in Delhi Oh I thought you were
Saying land is also taken away no no no no no in Delhi 1280 we have trouble your ships for a long period but on that I wanted to avoid that it is argued so many times that it was like one two and eighteen star is stuck
Like a mantra in the brain you know Parliament has competence on all the three lists that is because of 239 double A but not here it’s not there so unlike a state legislature in the case of urine territories like Delhi for instance Parliament can enact a legislation on any item that is because
Of 239 double a double A but I’m saying the same principle is followed here I don’t think it is subsection to nothing in subsection one shall derogate from the powers of comfort on Parliament by the Constitution to make yes yes speak to any matter for the United States are right
You know there is a consolidation for Consolidated fund but which Mrs using said it’s not it’s taken away annual financial statements audit audit by the CAG no this is a official language but for the first time there is an official language I wish this was pointed out to a lord
While saying that we have been deprived of everything it’s just a UT it is a state but not for all purposes except these two entries I am not going into my new details but it’s a lot Mrs using argue that the assets are also merged with Union of India actually
At this I mean nothing turns on it in this case I was just it’s little almost like trivia right now but Clause 2 says nothing in subsection one 32 shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter
Or the union territory of Jammu and Kashmir are any part thereof so this provision does not Empower Parliament to make a law on the state list like 239 double A the provision comes in 246.4 246 4 says Parliament is power to make laws with respect to any matter for any
Part of the territory of India not included in a state notwithstanding the such matter as a matter illuminated in the state level that’s why no just as a matter of uh constitutional position Parliament can enact a law on all the three lists for Jammu even in absence of subsection to it could have
That’s a constitutional position so I’m not reading will not say that even the assets will go to the has gone to the central government so there is a specific provision apportionment of assets Jammu and Kashmir assets remain with Jammu and Kashmir and ladakh assets went to ladakh that’s how Lord whenever
Reorganization takes place the things happen I may come to article 356. but kindly come to my written submissions and this is one of the last part of my submissions I have already crossed my time a lot but 142 just remember I am placing it for a lot since consideration
Not the government’s rule Governor’s rule is in challenge as I have pointed out after 14 months PDF 142 minutes but my written submissions for 142 volume 3 142. the Lordships have a Charged method yes well what I’ve done is I have mentioned the number of the petition with the name
Prayer prayed for and the grounds for challenging this Proclamation these are the only petitions and these are the only grounds in those petitions the Lordships are available how a constitutional Act of imposition of Governors rule or precedence rule is to be challenged and what should be the governments
What was the material sufficiency this that another nothing because it was done after 14 months only as a corollary of challenging Fifth and 6th of August action I’m not reading a lot the uh pleadings but there are no pleadings although that’s all I am Lord now
But I am not reading but there are no pleadings that it is arbitrary it is illegal and therefore declare it to be avoid that that’s all but nothing no bleedings only technically a prayer is there that’s what they can argue therefore they have made a prayer after 14 months without readings now please
Come tomorrow 146 of this very note Millers on the question so this is again srbumai I am on page 147 right I’m going fast I’m I’ve seen you a lot of chips eyes looking at the clock mode I I am also on the clock no that’s not we don’t have any such feelings
That I goes to the clock just as a matter of training you know that’s all on the Lighter Side what I am saying so that it’s not direct you to the return you also more than 22 years of training on this exactly more than 22 years
Mr Mr solicitor when we were judges of The Bombay High Court we had a colleague who had come from Gujarat and transfer a God’s good person so here this specialization which meet outside the Chief Justice chamber every morning uh just a little bit of pomerator and then we go to
So every day our colleague who had come from Gujarat would tell us how many more days there are to go back to the vacation so we always well at 146 last malnut Park only underlying portion 147 . but this method kindly read blood the canvas of the God’s jurisdiction in fact
Once the issuance of proclamation is held valid the scrutiny of the kind and degree of power used under the proclamation Falls in a narrower Compass there is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative
Merits of one rather than the other measure the court will thus travel unwittingly into the political Arena and subject itself more readily to the charges of encroaching upon the policy making the political ticket objections sticks more easily in such circumstances although therefore on the language of
Article 356 1 it is legal to hold that the president May exercise uh only some of the powers given to him in practice it may not always be easy to demonstrate the excessive use of power but why I am reading this Mr Simple read the first part of it not uh his
Attention melod missed this last part therefore I am for completion this is the lawn but kindly come to the next judgment my Lord at page 148 state of Rajasthan versus Union of India Lord Seven honorable judges brother but some uh bold Department there is a part which is made bold
The learning Council your Lordships worldwide the Learned Council appearing on behalf of the petitioners in the repetitions contended that it is clear from the provision enacted in article 356 Clause 3 that the exercise of Power by the president and the Clause 1 is subject to the control of both houses of
Parliament the proclamation issued by the president and article 356 Clause 1 would cease to be enforced at the expiration of two months unless it is approved by both houses of Prior tomorrow it was two months Houses of Parliament and therefore no irretrievable action such as dissolution of the legislative assembly of the state
Can be taken by the president before the approval of both the houses of Parliament is given to the proclamation he also restricts that irretrievable action can be taken but not before it is approved by the both the houses otherwise the Parliamentary control would be defeated and it would be
Possible for central government to present a fat accomplice to the two houses of Parliament and neither house would be able to remedy the Mischief done even if it disapproved the proclamation moreover either house of parliament May disapprove the proclamation even before the expiry of two months and where that happens the
President would be bound to revoke the proclamation immediately because the proclamation cannot continue in defiance of the wheel of either house of parliament without destroying the collective responsibility of Council of ministers to the house it was also this is the contention it was also urged that
During the period of two months no power can be exercised in work which would bring about a final and irrevocable consequence if the president has reason to believe that either house of parliament may not approve it or also the control of the house of parliament would be completely set at not an
Executive would be able to take irreversible action like dissolution of assembly by passing both houses of Parliament and ignoring their mission Rajasthan state of Rajasthan somewhat affected by the subsequent decision in Bombay yes well therefore I have put it chronologically so that your lordship gets everything at one uh in in one
Document without shuffling it is majority I can show this is a better worded from my point of view majority says the same thing I’ll show them a lot those paragraphs tomorrow answer 165 I’m sorry let me not give after I’ll put it that way it would be clear from this discussion
That when a proclamation require the president 146 all day I will not give I’m not reading but I’ll give the majority also saying the same thing but wording wise I found this to be matching of matching my submissions more it would be clear from this discussion that when a proclamation is validly
Issued by the president under article 356 Clause 1 it has immediate force and effect the moment it is issued and where by proclamation the president has assumed to himself the powers of the government Governor under subclass a he is entitled to exercise those Powers as fully and effectively as the governor
During the period of two months when the proclamation is in operation there is no limitation imposed by the by any article of the Constitution that these powers of the governor can be exercised by the president only when they have no irreversible consequences and where they have such consequence they cannot be
Exercised until the proclamation is approved by both houses of Parliament look here in this case I must add they are approved also when the decision was taken by both the houses on All Occasions whilst the proclamation is enforced during the period of two months the president can exercise all the powers of
The governor assumed by him and the court cannot read any limitation which would have the effect of cutting down the width and amplitude of such Powers by confining their exercise only to those cases where no irretrievable consequences would ensure which would be Beyond repair when any power of the
Governor is assumed by the president under the proclamation the president can during the two months when the proclamation is enforced do whatever the governor could in exercise of such power and it would be immaterial whether the consequence of the exercise of such power is final and irrevocable or not to
Hold otherwise would be to refuse to give full effect to the proclamation which as pointed at a book continues to operate with full force and bigger During the period of two months it would be rewriting article 356 and making approval of both houses of Parliament a condition precedent through the coming
Into force of the Proclamation so far as the particular power is concerned now now kindly seem not only the Bold part it is true that once the legislative assembly of the state is dissolved by the president in exercise of the power assumed by him under the proclamation it
Would be impossible to restore the status quo entry if the proclamation is not approved by both houses of Parliament but that is the inevitable consequence flowing from the exercise of the power with the precedent undoubtedly possesses during the time that the proclamation is in force you know then again uh
Only the Bold part it is therefore not possible to exceed but rest I am not skipping because it’s against me I am skipping because I am in a hurry they kindly take him if you’re not like me to read I can read everything it is therefore not possible to exceed
To the argument of the petitioner in the repetitions that during the period of two months before approval of the Proclamation by the two houses of Parliament no irreversible action such as dissolution of the Assembly of the state can be taken the power to dissolve the legislative assembly of the state
Cannot also be denied to the president on the ground that the proclamation may not be approved by one or other house in the first place the existence of a constitutional power or the validity of its exercise cannot be determined by reference to a possible contingency the court cannot enter into the realm of
Conjecture and surmises and speculate as to what would be the position at the expiration of two months whether the proclamation will be approved by both houses of Parliament or not secondly it is entirely immaterial whether or not the proclamation is approved by both houses of Parliament because even if it
Is not so approved it would continue to be in force and effect for a full period of two months look this is diluted in bomai Sr bomai please come to page 150 next page Justice seventh Injustice foreign summary of conclusions on this point it is conclusion number four Roman 4 Roman
Since the provisions contained in Clause 3 of article when am I with theological myelogist is called page 150 since the provisions contained in Clause 3 of article 356 are intended to be a check on power of the president and the Clause one thereof it will not be permissible for the president to
Exercise powers under Surplus a b and c of the letter Clause to take irreversible actions till please please mark this this is the only dilution and this is the only limitation till at least both the houses of Parliament have approved of the proclamation and this is definitely the majority
So Lord here when the Imp the actions which are impuned were taken they pass the muster Thrice the proclamation past the master Thrice then my Lord uh I find myself in agreement with the opinion of Justice 7 on his conclusion one two and four to eight with which
Justice BP jeevan really concurs in his judgment so this becomes one of the majority View and last but not Justice given ready and Justice Agarwal in light of the reasons given in conclusions recorded here in above we find ourselves in agreement with conclusions one two
And four to seven in the Judgment of our learned brother Justice seven delivered on behalf of himself and Justice kuldeep Singh we are also in Broad agreement with conclusion number eight foreign when an elected government is not in office the orders of the governor under article 356 1A as an agent of the
President of India are equivalent to the orders that might have been passed by an elected government in office and the governor’s orders had to be given effect fully and could not be ignored either by the executive or by upsc etc etc then mother uh kindly come to my Lord
One paragraph of in Sr bhumai at page 152. Justice jivan radius Exposition on this at page 153 I am not reading the rest mother your Lordships May Lord it it gives blood what what happens when 356 is implemented then at 153 fourth line from the tops Milo justice justice
I am on Page 153 fourth line from the top coming to sub Clause B velocity gets that number yes coming to subclass B when it speaks of the powers of legislature of the state being made exercisable by Parliament or under its Authority it cannot and does not mean or imply
Dissolution of the legislature of the state it is significant to note that the subclass refers to legislature of the state and not a legislative assembly in a given State the legislature May consist of legislative assembly as well as legislative Council in such a case there can be no question of dissolving
The legislative Council since it is continuing body only the Legislative Assembly can be dissolved uh in other words there cannot be there can be no question of dissolution of legislature of the state the expression employed in Clause B the question may then arise why was Surplus be put in and what does it
Imply because entire legislation is not being dissolved only assembly is being dissolved and the court answers the answer must be that when the government of the state is dismissed or removed from house the Legislative Assembly cannot function normally it is difficult to visualize a legislative assembly or for that matter legislature functioning
Without a council of Minister I.E Dorman thus where the government of a state is dismissed or removed from office here resignation the legislature of the state becomes ipso facto unworkable it is for this reason that subclass b provides that powers of the legislature of the state shall be exercisable by or under
The authority of Parliament the best Exposition method of sub article B so these are my respectful submissions but I am immensely grateful very patient hearing a lot and it’s always a learning experience thank you Lord I I’m not I wanted to read my Lord the concluding speech of uh Dr
Ambedkarma at the conclusion of the assembly testimony but if time permits at the end my Lord I’ll read for five seven minutes it’s a beautiful speech method at the end of the problem and not right now coming in the way of and habits are very hard since while I was trying to
Read late at night through my iPad still scribbling on the paper and then making some notes so it’s 6 more than 61 years ago we had a if you watch this we collect I given my two sets of rate and submission is that at volume detailed written submissions which is at
Volume four I don’t propose to read at length the but some essential aspects which I thought China Supply baby of a addition to the arguments made before the lordship stages when I do that this is a volume four PDF for example page it’s a separate written submissions behalf of the Attorney General
That’s volume four that’s right and then I handed over a two-page note and elastication for the summary of my professions your opening arguments yes which company when it’s 61 years ago we had puranlal wanting to whether yes oh my God but not a very good compliment for me your father’s alive
You know because he noticed that the same position persisted for 30 minutes fortunately for me he was the only one fortunately experience i i in continuation of my summary of your Lordships have been taken through the wall historical narrations and in matters like this is very difficult to capture their entire history
Through a list of days narrations we want to communicate to the court what exactly happened for a period of five momentous years before 1915. and they convey only a very telescope point of view and a large amount of literature which is available to others sake are these momentous process took shape
To a variety of efforts and engagements the ideas and conglomeration of thoughts but by and large but the history has been brought over in Lordships that but for the narration of History the understanding of not only article 370 but with the Constitutional integration process could have been incomplete
And that’s where the detailed list of this narrations occupies an important space now they said 61 years ago wanted to contest an election how his dream has come true you had to wait for 16 years for all of us we’re all all of us are important in a way
So this this is a this is a brand uh contribution to what one may say whether it’s very significant historical constitutional process that has taken place in the history of India now why do we have to look at the Historical narratives that because both sides would like to place a certain perspective
On uh why is certain course of even alone are important if you look at a constitutional integration process the rest of the country and compare it to the conceptual integration of jlk the historical narrative show that there is no fundamental distinction at all is the political compulsions which happen
In the context of JK made a very slight deviation and that deviation is again I would call a formalization of the principles and the procedures for integration article 370 is nothing but the outcome of the formalization the principles and the procedures for integration the country had gone through all that process
Union of States merger or small in the territories and the idea of a concept assembly and framing a constitutional they don’t want all that forces have gone through but since there was there was little Intervention which is the political historical fact article 37 trt intervene and if you try to attribute to article
370 any other purpose or intent then I think we are fundamentally mistaken so we are asked to go back I would probably ask you a lot to go back to 1949 1950 and look at in the point of those who are engaged in braving article 370 and with the visualization as to
What would happen soon thereafter to the integration project of article 3 certainty instead of that we are sitting today almost 67 years later and trying to imagine into article 370. what contemporary contact you want us to imagine I say that imagination to a large extensions forbidden
So we have to look at it from the Texan context and the intent and content of articles if we quickly formulate uh my understanding about the reserventry I don’t propose to read in Excel so many of the judgments which have looked into article 370 submissions okay video internal paid 27 operating Solutions
And please turn before that to page 30 paragraph nine two zero the three dimensions of article 370. enabling Parliament to legislate in respect of matters in para one and two of subclasses we have Clause one of article 370 B application of the provisions of the Constitution of India subject to
Exceptions and modification the philosophy of clothing or article 317 and C termination of the role of article 3 17 class wave article 370. these are the three dimensions then the requirements of consultation concurrence and recommendation as the case may be are the processes to be followed by the president
And I think for the purpose of our understanding is honestly to go into the Krishna concurrence and consultation Etc and the distinctions but uh since you are debating on the Proviso to philosophy of article 373 and the recommendation Clause we need to place some attention to that I in my understanding philosophy kindly
See the whole the exceptions modifications auditions changes power is I think virtually available in the entire spectrum of the Constitution of India in different contexts and for different purposes but more prominently they come to the fifth and the sixth schedule the legislation making power of the governor has been noticed by this court
And more than one occasion and in place only one reason judgment 10 at page 30 to the Constitution by judgment on the powers of the governor under the fifth schedule paragraph 39 and page 13 begins at page 30 the last losses May skip forward to
The next five page and turn over to pay 32. middle of that page page 32. so the sentence beginning to the legislative power of the governor the extent to the legislative part of the governor under Section 92 the government of India act 1935 in making the regulation for
The peace and good government of an area confer the governor in the words of Lord Hansberry and at Moses creation of enactment for the attainment of objects pointed too in that case emerge response for conservation judicial committee by the power of parliament of Canada to make Provisions for the administration these
Are in good governance for any territory not for the time being included in any province it uh Contender that if any legislation differs from the provisions in England have been made but the administration of peace art and good governance the same could not be sustained as valid that contention was
Not accepted then kindly turn over to the next page page uh 33 the sentence beginning applying the law the middle of the paragraph applying law to an area is making a regulations which are lost so the power to apply logic inherent and there is the power to
Repeal that I mean any act or any existing law applicable to the area in question the power to apply Lord really to bring into illegal effect sections of an act as if the same act had been enacted in the entirety application of laws is one of the recognized forms of legislation
You’ll also find an article 370 the application principle is virtually distributed in article 370. I just recently read that so the application principle of logarian recognize forms of legislation therefore I would probably say that article states of intake concurring power in the president is not in the nature of an
Executive part of the president they executive head is conferred a legislative power a very extensive and wide power the power to modify a parliamentary law to power to subject a constitution to modification is a very vast power not as an executive and therefore in order the president is
Enabled you know exciting that power we have only those processes to be followed concurrence and consultation so if the scheme was to have a provision to facilitate and Aid the Constitutional integration processes we need all that we put in place the comfort and the aspirations also to
Be not to be compromised and therefore you the concurrence under consultation we accept that position is something which you put to the other side what has been the practice and the convention is something different no that practice in fact goes from what the president will expect you to do in
Order to complete the process of integration the Constitutional integration process it is it is not linearly unilaterally flow from the the deliberations of the constant assembly of J and K oh we understand Authority yes we understand your argument to the extent that there were conflicting views expressed in the
Constitution assembly which is quite to have pointed out or what was pointed out and what we have today is article 370 as it stands in the Constitution so we have to interpret that and apply that yes because kindly now turned to page 36 because we try to understand
If this is a constitutional integration process and the constituent assembly at jnk will play a role in the Constitutional integration process now how do you really make that happen so that I said the two important elements of 370 namely extending the provisions of the Constitution the one hand
And enabling Parliament to legislate in the meanwhile as the assembly is in the process of crafting a constitution for the state of J and K very essentially important steps of parliament in the meanwhile will legislate for the state of jnk and the extension of provision of the Constitution is equally important the
Two important limbs to the two important limbs in the hands of the president and a Terminus point will have to arrive at some point of time I try to imagine that if article 370 did not Applause 3 at all it’s impossible to think of a provision like this without a Terminus point
But it is not to serve a perpetual Aid and advise position for the state of DNK through extending periodically or what happened over a period of time is what the president has done is by updating various Provisions the Constitution need to by seeing various constitutional orders the updating excess went until recently
Beyond the Civil 54 1965 by which time the majority and important provisions of the Constitution the Alexander state of J and K beyond that excel in two occasions it become contentious they are really updating exercises so if article 370 was to be conceived as a permanent updating exercise one would
Have wondered why it should have come at three at the time of enactment to the Constitution or constitutional integration with jnk it could take an entire different shape so that was certainly not the intention so if a term in this point has to be has brought in and that cover us against
Initially invested in the president now we article 370 begins when sir not a non-abstinal day clause I understand not returning anything in this constitution also house article 368. anything done within the scheme of article 370. anything and everything done by the president doesn’t admit of any role for article 368. so therefore
When article 360 has not come into the scheme of the Constitution the argument that during a president’s rule on 356th you could not have probably taken any emotional reversible irreversible without threading the path of article 368 in this country see if the realistic understanding of article 370 was to complete a scheme
Let’s say at one level enactment of the Constitution of J and K so the deliberation the legislative Constitution assembly and it was come to an at that point of time and if it came to an end by that point of time because section three and five virtually captured the essence of constitutional integration
And I think more the required to return after section three and five becoming the part of the Constitutional document it hardly matters whether you call it today the Constitution we did not get into the question at all therefore if the integration Clause is contemplated came to Within by enactment of section
Three and probably of the Constitution of J and K that’s at one level at a different level if thereafter president is issued various orders in excise of powers and article 37 t1d and if I am writing six they’re all essentially updating order except those two controversial orders but article 35 AK
I ask myself a question either president precluded from taking stock off all that has been that has happened in the article 371d and say what shall I do with it today that today can come at any point of time there is nothing there for the scheme of
Article 370 enabling or a young thing the president take this as this question she is entitled to other schools at any point of time at any given point of time if there is a trigger is facilitates and enables the person who takes talk in the whole situation
So she was 272 273 which are preceded by clock taking authority of the president the president has taken stock or whether what shall I do with article 370 should it continue or should it recall to a surge’s purpose and terminated if that authority of the president is untraveled
The measures taken by the president to deal with looking for Aid and assistance measures in terminating it coupled with what the parliament ultimately did in dealing with a very vast question of bringing peace and restoration to state of JMK we are trying to tell you Russia that
Does ability probably will not come in so let me try to understand why the jnk the concept assembly was given only a narrow power of recommendation well yes it was necessary to have the recommendation taken from the constituent assembly for the necessity does not enlarge to scope of the role
Given to the assembly which is a very narrow narrow roles namely a recommendation rule one will probably be able to argue that if the assembly having resolved itself we provide so probably would have uh expired on the board is no longer operating operative and cannot be operated at all then it says
The tale cannot work with the dog Etc although it is a figurative metaphorical but what I mean say is this the president lose the authority and power available in article 370 Clause 3 to bring to a close the entire scheme of article 370. I would say the president has not lost that power
In the presidential poll case question was whether the reason of the fact that the Gujarat Assembly was resolved and presently placed that citation assembly was resolved and for the conducted the election to the president the Electoral College is incomplete and the election will be complete in a
Certain period That’s a mandate of the Constitution but you can’t do it now your launches references either mandate of holding an erection within a period now becomes impossible without Electoral College being available there does not release the Mandate from being complied with so therefore in certain circumstances that what called facilitating
Or what would make what what is called the recommendating role of the assembly is just not available the president’s Authority and article 373 can operate without any further assistance from any other authority the president could have said in art and article 371 D which was precisely what has happened here
He did not require any further assistance from any other authority but by abandoned caution in continuation of what happened earlier in the article 371b we follow the president follow the same footsteps now substituting legislative assembly in the place of the constituation so whatever Gap is suggested Gap may be
Perceived President says now I’ll fill that there are several situations when such conditions precondition the performance cannot be performed it is called the doctrine of impossibility so therefore the performance is not relaxed but comments will still be done the conditions may be ignore so therefore if following an earlier president of
Article 370 1D invocation we had a substitution of legislative assembly in the place of consequent assembly the president follow suit it is also bear in mind when attorneys see when it referred to subclass D to article 371. to the government of the state now if fund has to take the concurrence
Of the government of the state Eid pause 3 of article 370. as giving complete and absolute part of the president will be virtually going against the entire object and purpose of the enactment because otherwise plus d and the Proviso says state comments becomes a formality when we read that article when we read
Clause 3 to article 370. we have to we cannot ignore the article 370 plus one including D and the Proviso data right not to the ministers governor with the council ministers let me try to look a difference so if you’re going to read Clause 3 of article 370 in isolation
Without reference to Clause sub Clause D to article 371 and then argue that this absolute power given or absolute because there’s an integration which has to be done will it not be will it not be in conflict with or not seeing in terms of the entire report of the app article itself
The perceptions about if conflicts because we are dealing with a provision which was meant to work during a certain period and during the period how we should have worked and since it crossed that period you have all these questions which are apparently imperfect so therefore if you go back to a period
Prior to 1957 and imagine what would have happened if the Constitution assembly had recommended to the president to dissolve to to delete article 370. partially or fully person remain entirely different so because it did not happen we have to put in position a certain understanding as to make it a give it
A meaning and context still ultimately present takes talk on that so that giving meaning and context in relevance will flow from what has happened over a period of time and what the president can ultimately do in our understanding of the role in relevance of article 37 and that’s the
Most that’s the most fundamental thing if the role in relevance of article 370 regardless of its exercise over a period of time is clearly understood by the president now then by what other normative yardstick about the relevance of article 370 will the quote judicially scrutinize the exercise of Power by the president today
A benefit but in this case is there any president’s Proclamation excising power under Clause 3 to article 370. saying that I’m abrogating article 37 . I’ll just come back we can can I combat it by after reading of some part of in the line of my presentation kindly come to like to
Complete this and come to your lordship to answer a lot of the question page 36 of my written submission they started talking about the paragraph 12 we’re talking about the recommendation role I would just want to finish that part of the argument and then try to come back to this
Kindly turned the page 36 paragraph 12. because if we try to extol the recommendation role Beyond a certain level when we are rewriting article 370. so the the recommendation role is a very minimal role and how is it being understood in different contexts we have a recommendation does a recommendation postulate a positive
Recommendation or does it mean just any option advice it is an advice so it’s an advice to facilitate and enable the president to find as to whether article 370 has served its purpose and to close it the the way the whole Clause 3 of article 370 is to render article 370 in operating
But what is that in that context Suppose there is a constituent assembly yes they will not go into this issue of the constituent assembly and the legislative assembly and the constituent assembly recommends to the president do not abrogate article 370. is it open to the president then to
Override the advice that power of recommendation is not available to the concept in assembly sorry the assembly as soon as recommend to the recommend the president in regard to rendering article 370 in operative the president seeks that advice from the assembling the assembly will not say I have my
Different thinking and article 35 and I’ll ask you to retain 370 the way we wanted so therefore the the advice the recommendation is not just an opinion when the Constitution uses the expression recommendation it means a positive decision because article 370 uses different phrases it uses consultation it uses concurrence it uses decision
Recommendation certainly right so therefore the the use in article 370 of all these distinct Expressions concurrence consultation at their context so therefore the recommendation is you know the entirely distinct idea altogether if the Constitutional assembly was containing that even if the constituent assembly were to say that please don’t
Abrogate 370 the president can still abrogate 370. she can recommendation is not binding on the on the president therefore it is recommendation it is not concurrence so confidence for the purpose of see concurrence for the purpose where you get the creations of the Constitution extended stands in a different uh
Consultation where the parliament will enable to enact during that period consultation so a recommendation occupies that it comes at the end of the day when all the parties have understood that the job of 370 is done what shall I do the President says let me know what I
Shall do now I want to probably say I have taken stock of all the presidential orders issue they constitutional integration process is over now is there anything left by way of invoking article 370 or extending the provisions in the Consciousness that question will have to be necessarily asked
When that question is asked what is the role of the concept in our salary so if the 378 in Visa is a larger role so that would have defeated the very purpose of constitutional integration therefore the only relevantages the use of the expression recommendation is not by itself dispositive of the
Content of the expression as to whether it is merely an advice whether it is a condition precedent I’ll give you two examples see there are two examples in the Constitution where the word recommendation is used article 109 and 100 and 17. article 109 deals with money bills
A money Bill after it is passed by the is not introduced in the in the rajya Sabha always introduced in the Lok Sabha after the bill is passed by the rajya Sabha I’m Sorry by the Lok Sabha it is transmitted to the Lok Sabha to the rajya Sabha recommended recommendations
Those recommendations are not binding on the Lok Sabha it may either accept them it may accept them in part it may reject them that is what article 109 says so in article 109 1092 see the way it is worded the recommendation of the rajya Sabha doesn’t bind the Lok Sabha on a money
Bill now see 117 117 says that a money Bill cannot be introduced except on the recommendation of the president 317. because your pieces a bill or Amendment making provision for any of the matters specified in sub Clauses a to F of clause 1 of article 110. I’ll go
To 110 in a moment shall not be introduced or moved except on the recommendation of the president now in article 117 the same word is used recommendation recommendation is mandatory you can’t move a money Bill unless there is a recommendation by the president now comes 370. there are many other
Provisions of the Constitution I think if I’m not mistaken in my dissent in other I’d analyze those provisions of recommendation now see 370 it says provided the recommendation of the constituent assembly of the state shall be necessary shall be necessary before that’s right can be necessary and before
So it’s a condition precedent and a condition in terms of time it can’t be a post factor recommendation it has to be before what is the reason for it there has to be a recommendation by the constituent assembly for the obligation of article 370 and second that recommendation has
To be before the president decides to abrogate it therefore to say that you know this recommendation is just an opinion it’s not binding on the president my submission is not to slide that recommendation though but I say it’s still only a recommendation if we try to explain it the necessity of having a
Recommendation does not add any further content to the role of recommendation there is a procedure which is required because during the Constitution integration process that you have to have a recommendation yes and it’s not binding it may be a positive or negative recommendation the president can override whatever is said
By the constant assembly no the reason why therefore in what I would call a minimal role of recommendation given to the consequent assembly is in the context of one foreign and that being part of the larger integration process can a body like the concept assembly a j and k
Can have a final say an article 370 it is not a considerable body of a parliament of India it doesn’t have all that attributes and Powers so they recommended the role has been assigned in the context clipping in mind that once the Constitutional integration process is completed in the
Understanding of all the parties involved there has to be a terminus and to bring the terminus to a complete completion then the role of recommendations are signed or there is a constant Constable you could have been probably given the power as a consultation concurrence why a state government coming into article 370
At all so it’s only at the end of the day when you have done all that job it’s a stock sticking exercise and eight percent will probably emphasize that you will do it before the Constitutional integration process gets over what is this equator are you therefore contending that therefore
Since this is purely recommendatory therefore the absence of a recommendation also doesn’t make a difference is that the submission of autism uh I I’ll personally take that I’ll answer the question that’s only when three two yes there are different oh qualification opinion or recommendation should be acted upon this issue
It will be referred to the commission summation will give an opinion and then it says and it shall act according to such opinion this is missing in act upon himself at my note I have mentioned I didn’t read it but the cons president of India being bound solely by a body which is
Outside the constitution of India not May perhaps not be the correct interpretation of our constitution that if it says yes he can do it if he says no president cannot do it because constitution of Jammu and Kashmir is beyond and outside our constitution because the philos D does the same thing
It says that other provisions of the Constitution can be adopted subject to such modifications exceptions if they relate to the instrument of accession consultation anything else concurrence of the state government assembly no but then if the if the constituent assembly was not in existence then it has to be placed
Before the consequent assembly for his decision that means even in the case of the operation of clause D read with subsection with Clause 2 the constituent assembly is given the overriding power even in relation with the president till it survives till it is see you can’t say when the cons when
Article 370 itself refers to constant assembly you can’t say that there is constant assemblies outside the Constitution it’s within the Constitutional framework because it refers to it yes your argument that once the Constitution assembly is no longer there what will be the position with regard to
Clause 3 to 370 is something which you will have to examine with reference to the procedure you have with reference to because the judgments itself many of the Constitutional brain judgments still says we are not examining that issue we’ll have to examine worry is only with permission this exercise would have been undertaken
In 2007 in 57 when constituent assembly was in existence suppose it would have recommended they don’t abolish or or apply with modification that none of the provisions of the Constitution of you we have replicable would be applicable or never apply fundamental rights with that modification to myself the president of India will
Denuded of its powers was it intended that by not recommending not to abrogate it would become permanent we have we have taken that argument but Proviso will no longer be applicable after the constituency is not there but that will not deprive the president of his power under clause 3.
Is essentially and fundamentally a constitutional integration process anything which emanates from the assembly to the contrary as a way of negation the integration process the Forbidden under the scheme of activism Mr Tony you extended that argument therefore the questions arose you extended the argument to say recommendation only means advice and
Even no advice suppose the constitute assembly was that’s assuming that the causative assembly was therefore that part the extension part is the one we have to probably understand the context in which why this provision was at all enacted the Constitutional integration from the repeated by the only Mantra and article 370.
And everything around it revolves around it 371 a b the parliament have been able to legislate extensional privilege in the Constitution they all revolve around the central theme see the only thing is in relation to Jammu and Kashmir one thing is very clear from Reading article 370. it expressly recognizes the instrument of
Accession categorical recognition of the instrument of accession in article 37812 second ecotic categorical recognition in article 370 of the process of the formation of the Constitution of the state of Jammu and Kashmir heard a categorical recognition of the status of the constituent assembly of Jammu and Kashmir
But therefore it’s not that these were incident instances which were taking place as a part of the real politic in that state the ioa the constituent assembly the process of constitution formation in Jammu and Kashmir they are expressly recognized in article 370. with a certain constitutional recognition it’s not a constitutional status
A constitutional recognition in article 370. I guess because we the the historical narrative about what happened in the rest of the country towards constitutional integration as I said essentially the process of one was one of the same conceptual assemblies you’re right in Mr attention to the point that this was an aid of
Constitutional integration yes and as we see that integration was taking place by and by yeah from 1957 right through to 2019. so subjects which were completely excluded to the parliament were brought in within the purview of Parliament that was also an that was a clear understanding of the Constitutional
Movement towards greater integration of Jammu and Kashmir into the Indian into the Indian into into the Republic of India and the Dominion of India originally and the Republic of India so there was undoubtedly a gradual and imperceptible integration apart from the accession to India which we saw right at
The outset in article three there’s no difficulty about that the only Point really is this there are two ways of looking at article 373 if the Proviso and apply we keep 367 apart for a moment if the Proviso to article 373 cannot apply does that mean that the power under the substantive
Part of 370 is completely denuded or lost or I’ll try it that’s the uh and if that power is not lost is it a unilateral power then which can be exercised by the presidents what what Parliament really did was this it didn’t have a constituent assembly in
The in the state of Jammu and Kashmir there was no constituent assembly they were exercising this power to abrogate they followed the 367 cause obviously with an idea that in the absence of a constituent assembly there’s no legislative assembly in the state you go to Parliament which in that sense represents the broad
Diversity you have the rajya Sabha which is the Council of states which represents the the overall diversity of the nation you have the Lok Sabha which I conserve which consists of elected representatives of the nation but in that process there’s one have you wouldn’t say casualty but one dilution and that dilution is
The the role which is described by the Proviso to article 370 bracket three now that role can as you are trying to uh as you’re trying to sort of elaborate that role is merely recommend day tree merely because that role is like a recommendatory does not mean that it can
Be dispensed with because the Constitution provides for a recommendation where a constitution provides for recommendation we can’t say that well even if there is no recommendation that’s fine you can override it Endeavor and I just add one thing sorry for you I’m sorry sorry to interrupt you
See after your main 367 you say legislative assembly is equal to constitute the same we have to take a pretty logical conclusion we’ve accepted that it exists but that’s right that’s right but for not only one question right and your Lordships can consider this mother during this holiday
But suppose in 1957 at the time when the Constitution was framed constitution of Jammu and Kashmir yes and the constituent assembly was dissolving itself last speeches were made Etc suppose it would have said that now in exercise of our powers in the 370 sub article 3 we recommend the president
That the Constitution which we have framed we provide for a semi kind of monarchy and now therefore you delete 370. would it not go against the very spirit with which 370 was incorporated that it has to be temporary and you are an integral part because because 370 sabbatical three says not to
Withstanding anything contained in the foregoing provision meaning thereby one and two instrument of accession and Article 1 being applicable so constituent assembly technically was not bound by one and two would the president be completely denuded and act as per the desire of the constituent assembly it cannot be for
The simple reason that the debates in the constituent assembly repeatedly say that this is a temporary provision foreign that proportion is not this will be contrary to article threesome and that may have lost his permission in in support of this submission okay Foreign internal sovereignty how do you explain a certain I thought if they are useful I can certainly one last word and then we’ll rise of course we then we’ll think of all that you’ve argued for the holiday tomorrow that the white Chasm between absolute autonomy as it existed on the 26th of January
1950. all right and complete integration as it was brought about on 5th of august 19 2019. that Chasm had been substantially bridged by what was happening in between so really in the sense it was not it was not a complete migration from absolute autonomy to Absolute integration it had
Become a shell whether you call it a shell or not area of integration had already taken place in the last between 1950 and 2009 69 years and therefore what was done in 2019 was it really a logical step forward to achieve that integration absolutely sorry maybe an hour more
After that Mr davidi will
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