A barking in lieu of which the princely state exceeded to Union of India so there were two States 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 Princess the Lordships are not required to go into that question right now look 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 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of our exceeding and therefore you could not have done it but D after the Judgment in my mother of India the government repealed or blood that is a Constitutional Amendment Constitution under 360. correct Lord I’m saying that
Mr I was just about to answer that it was a constitutional amendment let government repeal that 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
Raghunath Rao ganpat Rao versus Union of India Millers the Judgment which your losses would find versus Union of India 1994 supplementary one sec 191 but we will not also have to look at the original Maduras India it is discussed here okay it is discussed here and distinguished because mothers in their
Places limitations on the power of the Union government to use the root of an interpretation or definition provision to abrogate substantive substantive constitutional rights that is absolutely a correct legal position but for 370 which provides that you can use this that’s your that’s the distinction you’re making that’s the distinction but there
Is one model you will have to then deal with the point as to why was it necessary to take recourse to 367 then in substance if if I were 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 at Park a lot kindly seem a lot that is volume
Seven where will we find that in the case law compilations volume seven of case law compilation PDF page 537 but I’ll read relevant part my Lord considering about the time constraint uh I I intend to complete Melody on this side of the lunch money also after you
Finish this go back to madurai one okay because if you don’t go through it then you know then obviously there’ll be your uh there’ll be a front in the rejoinder that you know you have not dealt with mother first of all but I will go to mother there is nothing because that
Kindly come to page one so that your Lordships have another background uh the two rig petitions fellowships paid five fortitude PDF 543 yes these two repetitions call in question the Constitutional validity of the Constitution 26th amendment one second I’m sorry man my Lord Justice the way Injustice a volumes case law volume seven
At 5 43 minutes the beginning of the Judgment yes petitions call in question the Constitutional validity of the Constitution 26th amendment act entirely on the ground that it violates the basic structure an essential feature of the Constitution of India and he is therefore outside the scope and MBT of
Constituent powers under article 368. in addition certain directions are 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
The earthquake 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 said instrument the petitioner accepted the matter specified in
Schedule there too as matters with respect to with the Dominion legislature may make laws for the state and declared his intent that the governor general of India the Dominion legislature the federal court and any other Dominion office I am reading page 543 blood paragraph three at Classic classical just one line
Is referring to the instrument of accession signed by every ioa instrument of accession or maybe he’s ancestor virus said instrument the petitioner accepted the matter specified in the schedule there too as matters with respect to which the Dominion legislature may make laws for the state and declared his intent that the
Governor general of India the Dominion legislature the federal court and any other Dominion Authority established for the purpose of dominion Shell subject to terms of the instrument exercise in relation to gurundwad state a such functions as may be wasted in so and so so and so so and so of the
Instrument provided that nothing therein shall be deemed to commit the ruler in any way to acceptance of any future constitution of India or to Fetter his discretion to enter into agreements with the government of India under any such future Constitution subsequently a number of rulers executed agreements of merger and 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 there’s a little bit of a background about kurundwad State Uruguay is a very
Small town very close to sangli and kurundwad is on the banks of the river Krishna and a very famous there’s a place 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 the rate on the banks of the Krishna maybe that may be the reason why the human habitation must have established their forces of water and well all earlier or earlier civilizations are on the bank of the river
But now your losses may come to page 548 the arguments there are two constitutional Provisions were dispensed with by were repealed by way of a definition clause not like unregular interpretation Clause not here kindly bear one factor in mind 370 sub article 3 has an inbuilt extinguishing provision
370 sub article 3 is a provision whereby 370 can be extinguished that’s the distinction but I’m on a little wider argument made by the other side the submission my Lord Justice the submission Advance by Mr Suraj the Learned senior Council appearing on behalf of the Rick petitioner in
Repetition number so and so are thus article 291 362 and 366 double two well at 366 is double true is the definition Clause defining princes then of the Constitution where integral part of the Constitutional scheme and form the important basic structure since the underlying purpose of these articles was
To facilitate submission of New Order and ensure organic Unity of India these articles guaranteed pledges to the rulers based on Elementary principles of justice and in order to preserve the sanctity of solemn agreements it was only by the incorporation of these articles that the unity of India was
Achieved by getting all the rulers within the fold of the Constitution and that the deletion of these articles has damaged and demolished the very basic structure of the Constitution the covenants entered into wherein the nature of contracts which had been guaranteed constitutionally and affirmed by making the previous an expenditure
Charged under the Consolidated fund of India and the use of expression guaranteed or assured by the government of dominion of India to any ruler M as embodied in article 291 and the expiration guarantee and Assurance given under such governance or agreements as is referred to in Clause 1
Of article 291 as comprised in article 362 was a permanent feature of the Constitution reflecting the intention of the founding fathers of the Constitution and as such these two articles should have been kept intact please pause here for a minute alert these articles even remotely did not suggest that they are temporal
As against 370 which by its very definition says it’s temporary and I will also may not be able to attempt to demonstrate that it could never have been but for temporary such a drastic provision the Visionary fathers and mothers of the Constitution would never have kept it permanent with two organs
Can change the Constitution the way they like but that’s a separate argument please see learn it according to the Learned Council the deletion of these articles amount into a gross breach of principles of political Justice enshrined in the Preamble by depriving or taking away from the princes the
Privy purses which which were given to them as consideration for surrendering all their Sovereign rights and contributing to the unity and 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 enshrined in article 2291 and 362 and that the impune Amendment Act is beyond and outside the scope and MB of the Constitutional power of parliament
To amend the Constitution as provided in the 368. Mr surabji in his additional written submissions has further Earth that without a 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 26 49 would have been physically different and that India that is Bharat would have been fundamentally different from the Bharat that came into being but kindly seemed a lot para 22. Mr Salve the Learned senior Council contended that he was also for the petitioner with Mr Lord and his
Topple 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 291 and 362 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 continuance of privy purses enshrined in
The agreements and Covenants where an integral part of the Constitutional scheme and an important part of the Constitutional structure and they were to be fully honored and not Cast Away on a false moras of public opinion or buried under the acts of States but the impune expressi has abolished and destroyed those constitutional
Provisions of article 291 and 362 affirming the guarantees and assurances given to the rulers under 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
Afford said guarantee and assurances but also went a long way in determining that the state guarantees and assurances have come to a stay 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 write article 363 according to him the Covenant the covenants were political in nature and that no legal ingredients as the basis can be read into these agreements and that the guarantees and assurances embodied in article 291 and 362 where
Guarantees for the payment of previous says he has urged 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 the Lordships can skip 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 purses 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 buttressed to prevent the infiltration of the urge for freedom and democracy into Indian states with the Advent of Independence the popular urge in the states for for attaining the same same measure of Freedom as was enjoyed
By the people in the provinces gained momentum and Unleashed strong movements for the transfer of power from rulers to the people on account of various factors working against the machinery for self-sufficient and Progressive Democratic setup in the smaller stage and 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 Malad Ed page 554 PDF 554 honorable Court discusses mother because mother 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 these were another two till 13. on May 14 1970 the Constitution 24th Amendment bill for abolition of the abosit privy 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 Precision virtually declared two Provisions to be nality the presidential order Pera 14 der
Recognizing the rulers were questioned in madhavrao scindia versus Union of India by filing repetition under article 32 challenging its un it as unconstitutional ultravirus and void an 11th judge bench of this court by its judgment dated so and so struck down the presidential order being illegal ultravirus and inoperative on the ground
That it had been made in violation of power of the president of India under article 366 double two of the Constitution and declared that red petitions would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impune orders therein had not been passed
Here it may be noted that Justice mitter and Justice Ray gave their dissenting judgment there upon they started getting privy 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 foreign I’m certain memories
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 recognized in that that
Blood tree similar this guaranteed them not only preview persist some privileges not all states were divided into unsolute States somewhere 21 Guns salute some ways the smallest was one Consolidated refer to presidential orders in that merger agreements also no at that time there won’t be any
President as such no no there was none no because at the time when the agreements were signed they won’t be there after the Constitution was made and the president The Honorable president was elected application of it no 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 475 make a brief reflection yes to all these agreements hey yes para 75 70. therefore there cannot be a Melody it is on page the 561 possibly that’s what Malad The Honorable what is redeemed therefore there cannot be any justification in
Saying that guarantees and Assurance is given to the rulers where Sacramento and that article 291 and 362 reflected only the terms of the agreement and governance in fact as soon as the Constitution came into Force the memoranda of agreements executed and ratified by the State of Union Union of
States were embodied informal agreements under the relevant articles of the Constitution and no obligation flowed from those argument agreements and Covenants but only from the Constitutional Provisions to say differently after introduction of article 291 n362 in the Constitution the agreement and 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 foreign 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 governance 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 quit proko which were the essence of these are guarantees
He has Earth that the underlying purpose of doing Justice to the rulers has been subverted and breach of faith has been sanctioned he has relied upon these judgments including Miller 3 is Mother house India and please similar 79 Mr Didi thakur that the father of my Lord Justice thakur
My Lord the Chief Justice in addition to the above has stated that one of the tests to determine whether the provision of the Constitution was intended to be permanent or could be deleted or amended is to see whether the Constitution makers had intended that to be made permanent
In support of this submission he plays much Reliance on the observations of Justice budolkar in sajan Singh but I can skip that and thereafter monody May directly come to 88 at page 563. 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 madhav Rao observing is dealt to its 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 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 madhav Rao 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 but not just to contrast article 370 has a constituent power in the precedent and the sub article three the self-extinguishing provision according to the attorney general the observations in the seed case were nullified by the amendment and the
Judgment is no longer good law after the amendment to test the amendment on the basis of that judgment is impermissible and all the arguments based upon this case are therefore misconceived then 91 after the commencement of the constitution in pursuance to article 33662 the rulers were recognized and
They had been enjoying the privy purses privileges dignities Etc on the basis of relevant constitutional Provisions pursuant to the resolution passed by all India Congress Committee in 1967 the union of India introduced the 24th Amendment bill in 1970 to implement the decision of the all India Congress committee favoring the removal of privy
Purses privileges Etc but the bill though passed in Lok Sabha failed to secure the requisite majority in rajya Sabha and therefore it lapsed it was only thereafter that the president of India issued an order in exercise of powers wasted in him under article 366 double two changing the definition
Clause by an ordinance oh I’m sorry but my Lord Justice okay please continue answer I uh three sets double six double two D recognizing the rulers and stopping the privy purses privileges Etc enjoyed by the rulers now this is important this is the distinction this order passed by the president was
The subject matter of challenge in mother of two the Supreme Court struck down the order of the president as invalid as in the view of the Court the recognition of rulers would not take away right to privy purses when article 291 and 362 where in the Constitution
This is the ratio that you can’t delete a definition while retaining the constitutional rights guaranteed under 291 and 362. it was only in that context the observations which have been relied upon by Mr surabji were made the 26th amendment itself was passed by parliament to overcome the effect of
This judgment Now by this amendment article 291 and 362 are omitted article 363 a is inserted and Clause 22 of article 366 is amended therefore one cannot be allowed to say that the above 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 objection reasons of 26th amendment clearly points out that the retention of the articles and continuation of the Privileges and privy purses would be incompatible with the egalitarian society assured in the Constitution and therefore in order to remove the concept of rulership and terminate the recognition granted to
Ruler and abolish the privy purses this amendment was brought now 92 is very important 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 observations it is clear that the Learned 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 Corp incorporates a particular socio-economic and political philosophy it is an integral whole every provision of it is an integral part of it even the
Provisions contained in article 21 temporary transitional and I’m sorry part 21 temporary transitional and special Provisions one may ask which provision which concept or which institution in the constitution is not an integral part of the Constitution he will not find an answer to 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 seed 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 justicia 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 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 to para 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 sufferage right to democratic form of government and right to participation in political Affairs economic Justice is enshrined in article 39 of the Constitution social
Justice is enshrined in fellowships can skip that 97 a series a serious argument has been Advanced that the privy purse was a just quit 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 Bridge of Promise cannot stand much scrutiny to say that without voluntary accession India that is Bharat would be
Fundamentally different from that Bharat that came into being prior to the accession is untenable much less inconceivable please don’t mark this mother beautiful words one should not lose sight of the fact that neither because of their antipathy Towers the rulers nor due to any xenophobia did the Indian government entertain the idea of
Integration but because of the will of the people it was the people of the state who were basically instrumental in inter integration of India it would be apposite 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
But thereafter it is also worthwhile to take note of the historical process of States integration office May directly can come to one zero nine at page 569 107. on a deep country my Lord beta 107 on a deep consideration of the entire scheme and content of the
Constitution we do not see any force in the above submission in the present case there is no question of change of identity on account of 26th amendment the removal of article 291 and 362 has not been made has not made any change in the personality of the Constitution
Either in its scheme or in its basic features or in its basic form or its character but please read 370 in this does it change the personality of the character of The Constitution the question of identity will arise only when there is a change in the form character and content of the
Constitution in fact in the present case the identity of the Constitution even on the test proposed by the council for repetitioners and interveners Remains the Same and Unchained SRI so-and-so has contended that by removing the real and substantial distinction with between erstwhile princes forming a class and
The rest of citizenry of India the Constitutional amendment has at one stroke violated the basic structure of the Constitution as reflected both in article 14 and 51c and treated unequals or equals thereby giving a go by to a solemn treaty obligation which was Sanctified as independent constitutional guarantee 109. this is very very
Important and crucial for our purpose mother 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 citizen 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 Rivals were given autonomous powers for their District council’s co-equal to what is conferred on the states and that the
Minorities special Provisions are made in article 30. besides article 25 and 26 are meant to safeguard the minorities and religious denominations the persons to determine the injury will be those for whom these Provisions were made and whose interests are prejudiced according to him in such a Circumstance the assurance and guarantees given in
Article 291 and 362 which are the Magna Carta assuring the rulers of their pre-existing rights cannot in any way be destroyed we do not think that therefore said special Provisions have any relevance here as repeatedly pointed out Supra the only question whether there is any change in the basic structure of the
Constitution by deleting article 291 and 362 and by insertion of article 363 a an amendment of clause 22 of 366. we have already answered this question in the negative 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 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 not 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 look which keeps out of the total composition of our constitution as an appendage as a transitory provision to be removed at an appropriate stage if it is removed it furthers the basic structure that it enhances the equality
And fraternity which is the Bedrock of the Constitution yes in this view but it in my respectful submission may not be necessary to re read mother of your lordship could visually I can assist your lordship with that but we will not ultimately read the same paragraphs based upon which mother it is
Distinct that when you are doing something one definition was deleted with the president did never possess even today it doesn’t possess but only in one provision that is 370 where you can amend any part of the Constitution so explanation 367 mechanism is used but this is the DraStic nature of this provision
371 permits two organs the government of the president president would mean act and advice Aiden advice and the government of the state again Aid an advice but please please the Lord appreciate this two individuals technically the Prime Minister and the chief minister of the state whoever is can make any change
Can make any alteration 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 this wrote my learning friend wants me
To do this this is just note the paragraphs there are 151 152 and 118 minutes one eight zero one one eight columns it is two zero six Justice Mohan therefore this chord cannot concern itself with the moral aspect of the impunamin the impune amendment is the will of the people expressed through Parliament Lord here the parliament has examined on four occasions with two third majority in both the houses blood in mother of scindia judgment Rowdy fellowships can
Note the paragraphs which we would be reading but since it’s already 11 4500 I don’t wish your lordship’s time my Lord why if possible 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 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 yes 22 as it stood prior to the amendment by the 26th amendment if you have this red book it may not be in that you will have to get it in the red book at page 372. I guess that said ruler in relation to an Indian state
Means the prince Chief or other person by whom any such Covenant or agreement as is referred to in Clause 1 of article 291 was entered into and who for the time being is recognized by the president as the ruler of the state and includes any person who for the time
Being is recognized by the president as a successor of such ruler yes now what happened there was initially after you know the the the the the proposed amendment didn’t pass master in the rajya Sabha a presidential order is issued purportedly under clause 22. and the object was now we are der
Recognizing you if you are being recognized you lose the benefit foreign 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 Earth 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 you know 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 you know what the distinction is twofold distinction a 370 is the only article was the only article which permitted the president to change any other article so 367 your Lordships have shown I have shown the chart that 367 mechanism was
Used in past that’s that has been the convention so the only thing which happened my Lord on 5th and 6th of August was that using the mechanism of 367 the constituent assembly was changed it is not worse there blood there is a at least 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 sub article three this this method use of 367 is not only will not see the distinction the 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 your Lordships may come to that I’ll show only two Provisions 371 d ellowships 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 extinguishing question the first exercise as your Lordships have rightly said was under three
Because the constituent assembly was in existence it recommended rest Whenever there were modifications made in 367 were made under 1D all rest all under one including this one with the Congress of the government 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 sixth of August because subclass uh three only deals with 370 itself itself not other yellow teams are right not other part of the Constitution
Because D refers to other because before D you have C yes C says that the provisions of Article 1 and of article 370 shall apply to the state of Jammu and Kashmir correct therefore in that sense it freezes the provisions of article 370 in relation to the state of Jammu and
Kashmir now what he does is therefore it says other provisions of the Constitution tell apply subject to such exceptions and modifications therefore other Provisions will mean Provisions other than Article 1 and article 370 and 370 itself and 378 correct therefore if you have to make an alteration of 370 or
Abrogated status or reduce it or dilute it or alter it you have to follow the you have to follow the equals to three correct right but but you know what kind of I’m I’m sorry I’m almost reaching my Lord at your Lordships 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 years of article 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 no 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 I process other than three because what
You have done essentially here is no no that you have used 367 to amend the Proviso to 370 correct no not amend 367 is explanation that instead of a it would be B it may have an effect of Amendment whether you call it an explanation or an amendment yes one
Thing is very clear that the amendment to 367 has the consequence of now reading the words legislative assembly in place of constituent assembly which in fact was not necessary but yes it was done but not under 370. it was done under first the first step was Malone
The first step was the president under 371 d uh added the explanation that henceforth what the question being put to you is 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 records for 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 reports 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. you are saying such other Provisions will include 367. Mr 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 is the Constitution creates to amend 370 is 370 clause 3.
What you’re now doing is according to them is that you are using the amendment of 367 applying the provisions of 371 d to bring about an amendment to 370 itself whereas the purpose of 371 d is to amend some other provision of the Constitution true 367 is another
Provision of the Constitution but can you use that to amend then C70 itself that’s the point which you have to answer look I can assure my learnings no no please no no I can assure him nobody can disturb me or derail me without my consent I am quite accustomed to the such interruptions
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 let’s sit down and do it I will put it slightly differently I’ll put it differently
The interpretation which your Lordships are not prima facie now testing it no no we are testing the Prima faces testing it right what will be the impact of that interpretation I’ll read more of the entire article 317. meaning thereby I’m a lot in absence of a constituent assembly which can never be modified
The subarticle 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 you may not please read 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 seeds that shall be limited to those matters in the union list and concurrent list your lawsuits have seen one of those the presidential conversation the provisions of Article 1 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 will not accept that 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 specify well not
Other Provisions would mean other than B just stopping you for a minute put the Legislative Assembly make a recommendation in terms of 371 D saying that under 367 you equate constitute the assembly with legislative assembly under 371 40. 370 what’s up plus one subclass D could the Legislative Assembly make a recommendation
Saying if it is amendment it cannot if we just think about it and then answer but the legislative assembling uh make a recommendation to the parliament please the main article 367. let me give it a thought and we’ll respond to that well that I I understand
The heart of the matter a lot of ships not the discussion but not ease driving that any 370 see 367 use which has the impact of altering 370 itself you know then my Lord we would be setting it not all a 367 usage 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 look this is also with concurrence the only difference is the concurrence of the governor because Governor steps into
The shoes of the government so there is a difference between concurrence and recommendation to correct because it can be subsequent recommendation has to be the 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 pretty similar concurrence Provisions concurrence of the government means that the Council of Minister 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 uh dot on the point but I’ll I’ll respond let me give it a thought but the real question would be you have already responded what are 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 not change change is a correct incorrect word app to put an explanation to give meaning to 370. so simply put
According to you that according to you uh at the time when there was no legislative assembly the explanation was amended so as to demonstrate so as to provide that the constituent assembly shall itself be treated as the Legislative Assembly because it was so treated the Constitution had not been framed and
There was no legislative assembly in the state of Jammu and Kashmir so according to you the flip side now is that when there is no constituent assembly we treat the Legislative Assembly as a constituent assembly to to democratize but otherwise will not kindly see suppose the government took the decision
The government took the decision suppose the second answer could be and that’s for the other side to answer by amending 367. in fact you’re not indeed really amending 370 as such because the 370 procedure has to be still applied to abrogate or nullify 370 the procedure has to be said applied suppose
367 had been amended in terms of 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 accept some of them they would still be here right but that’s uh so that’s beside the point but it could have been that if this route is permissible or not I’m putting a question to myself I’m not suppose I thought I answered it in the office yeah absolutely right that’s my
Answer that’s my answer I’m grateful to your lord for that that thought didn’t occur to me but not suppose we took the decision that in view of the Proviso becoming otters because there is no constituent assembly that limitation of recommendation ultimately its recommendation suppose it recommends that don’t approach it precedent is not
Bound by it so now the constituent assembly having chosen while being dissolved not to recommend the constituent assembly has left it to the absolute discretion of the president it could have been done but not possibly it could have been defendable action but with a view to ensure that there is
Democratization of the action and Memorial Lordships are dealing with the state of this is a provision which is one of its kind there is no such provision either in our constitution or in any Constitution so the law with your losses would ultimately lay down is not going to touch upon any other provision
If in F suppose the commoner 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 President should modify some of the provisions which we recommend and continue 370 as it is forever having done nothing of this but the constituent assembly goes without making any recommendation and therefore leaving it to the absolute
Discretion of the president solicitor you said that he president is recommendation it’s a recommendation it’s not you you see the words you use in the Proviso provided that the recommendation of the hospital 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 means consent may not mean consent your lordship has seen Justice sh States transfer of Judges judgment where it says that consultation can even mean concurrence so I am not just contrasting the word concurrence with recommendation that the same provision uses the word concurrence
Means unless the states say yes Union president can do nothing but here it same provision uses the word recommendation that you you will recommend ultimate power with the president president who is answerable to the house house which is answerable to We the People of India so highest executive functionary is conferred with this
Decision and we can read that in absence of constituent assembly and it’s a 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 mother 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
He could have said even C can be deleted suppose one of the constituent assembly were to say that delete one C that article one is untouchable because now we have our own Constitution we no longer are a part of integral part of India not it could have said
Technically it could have said that Section 3 of The Constitution says no we are an integral part of English they never said 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 so we’ve covered now the first
Point the interpretation of 370. 370 there are some points so on 370 uh Mr solister why don’t you summarize in three or four propositions what’s the heart of your establishment can I do one thing if I lost your permits but I knew my Lord I’ll be running Against Time
Lord instead of not my 40 50 pages of blood uh explanation and arguments I have summarized in four pages right that would not save you a lot shifts time also in my note you have it here if I can be permitted I’ll just quickly go
For five minutes and we can we are done with it yes yes you can say is my Lord it declares it to be temporary via Lord says may not read anything Malone 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 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 malot the seriousness of this application of constitution of India and 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 Malad is a pointer that it was intended to be temporary then it is goal of equivalence but 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 371 would become permanent which is not only impermissible and not envisage but would
Result in the unconstitutional provision remaining in the Constitution and operative unconstitutional why it discriminates it confers an authority which is never contemplated in other states 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 10 but I
Would request if your Lordships Can Read With Me the petitioners assertion that such a huge decision is taken purely by an executive fear is absolutely wrong the process followed clearly reflects participation of entire nation through their chosen Representatives both in Lok Sabha and rajya Sabha when a decision
Becomes of concerns a federating unit it is of strategic significance what I have pointed out 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 yeah a lot of ships have seen that there
May not be once the Jammu and Kashmir constituent assembly cease to exist the Proviso to article 370 sub article 3 itself is used to exist and the precedent becomes the sole repository of power under article 370 sub article 3 which is coupled with his duty to exercise in the interest of 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 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 leads to an inevitable conclusion that they wanted it to leave it an option
To the constituent assembly during its life to make some recommendation otherwise that Proviso goes according to the provisions will not go in the substantive cannot govern yes my lords are right I’m obligible if the Proviso become otios the main provision does not become otos then the conditionality attached goes
If this interpretation to article 373 is not accepted and the president’s power is under article 373 is taken away merely because the constituent assembly has ceased to exist without 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 they are conceived if the president cannot exercise the powers under Clause 3 it would mean that existence and exercise of power of the president of India provided for in the constitution is dependent upon some decision or lack of it by a different body but can we read a constitution
That 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 then 17 secondly if we are absence of constituent assembly mentioned in the Proviso to Clause 3 is treated to be rendering the power of President of Indian Indian nugatory redundant and unexerciseable it would mean that by
Using any provision and article 371 B and 1D any provision of the Constitution can be amended and applied to the state of Jammu and Kashmir and even the provisions which are part of basic structure please mark this but not 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 not 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 does not recommended 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 institution is governance my limitation recommendation 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 otherwise the Constitution would have said that it would enact accordingly
What is mandatory is taking the recommendation that’s another way of melodies 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 here main Clause 3 we have ex that’s we have we’ll
Examine that up yes now 19. the only constitutionally compliant way of interpreting article 370 to achieve the ultimate goal of bringing the people of Jammu and Kashmir at par with the rest of the country and conferring them with all constitutional and statutory rights at par with the
Rest of the country is to either read an unfettered and plenary power of the president of India and article 370 sabbatically 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 well then power of the president and the subarticle 3 is unfetter is article 370 starts with a non-obstantial clause notwithstaining anything contained in the constitution of India and sub article 3 starts with a non-obstantial clause
Notwithstanding anything in the foregoing provisions of this article but kindly see there’s more something that might malada throw some light on on the first discussion World which my Lord the chief justice is very enlightened discussion what 370 stats with a non-obstantial clause there’s nothing in this constitution
This is how the 370 would function 370 sub article 3 starts with a non-abstanding clause not withstanding anything in the foregoing paragraphs meaning thereby even 370 can be subjected to 370 sub article 3. you know kindly you know read it once again am I am and I do not know
Obviously because 373 has 370 Clause 3 has a non-abstanding clause which overrides everything else in this cons in this one d right even One D which says that don’t do anything except one and three and there are two non-amstanding Clauses the first is 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 along One D also look yeah lot ships very Illuminating there can’t be any doubt about it because because that would include Clause one
There is meaning thereby meaning thereby modification in 370 itself was permissible through C 367 and when you override Clause one the plane intent therefore is that the constitution itself becomes applicable then correct once you exercise the power under three whether there was a valid exercise is what we
Have to decide so once you exercise validly the power and the three then the Constitution applies that would be the plain consequence of it the status of constituency what was the status of constituent assembly because nomenclature is a constituent assembly but whether it enjoy but I’m at the outside you’re not
Saying that it is subordinate to the constituent assembly for the for the union I mean you can you can’t Elevate that Constitution I must clarify one thing as an officer of the world but I am conscious of the principle laid down in keshwan and bharti that there is a distinction between constituent assembly
And Parliament or constituent assembly and legislature they are not interchangeable that’s why I’m not this uh submission that here constituent assembly for all intent and purpose was a legislative assembly not preparing a document of governance pull out the position as far as the state of Jammu and Kashmir is concerned
Even prior to coming into force of Article 1 was who created constituent assembly the Maharaja who signed instrument of accession and surrendered his sovereignty then he issued that Proclamation your loveships are not away remembering that now whatever Constitution his frame would be binding on 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 they were 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 but please see Lord 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 in new areas right to acquire territory and right to seed territories which we have in article one two three four constitution of India as well none
Of the attributes of a constitution so to say Lord can be attached to this constitution it was a piece of legislature recognized accepted and known till 5th of August and 6th of August 2019 as Constitution but for all intent and purposes my Lord it was not even the Preamble of the
Constitution doesn’t say so a preamble of constitution of Jammu and Kashmir doesn’t 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 doesn’t say that it has attributes of a constitution person we the people of the state of Jammu and
Kashmir so 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 in 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 correct we had only certain entries in list one the union list I am obligence right subsequently the concurrent list was brought in once the concurrent list is
Brought in within the domain of parliament to that extent the legislative domain of the Jammu and Kashmir legislative assembly is denuded then entry 97 was wholly outside the purview of parliament initially later on as we see entry 97 is also gradually brought in within the purview of
Parliament albeit in the context of laws affecting the sovereignty and integrity of India some subjects terrorism so on and so forth therefore it’s very obvious from section five of the jnk Constitution that once the constitution of India prescribes a certain legislative domain for Parliament then that is progressively denuded from the
Legislative Ambit of the jnk legislative assembly and that was not fixed as of 1957. another very important feature is that section 5 does not fix the Ambit of the legislative or executive domain of the jnk government and the Legislative Assembly as of 26th of January 1957. correct in fact it contemplates that
What the constitution of India will prescribe for Parliament will be outside the domain of the of our domain so in that sense it is always intended to be subservient to the constitution of India is not really a document which is equivalent equivalent effect and that’s what the 147 makes these provisions unremendable
Section one for texting 147 3 and 5 cannot be amended otherwise what happens but this is amendable this constitution if it would have survived was amendable by the Legislative essay so they can amend their Preamble and academically potentially can become a Theocratic State because secularism was not applicable all right Mr solicitor I
Think we’ve gone through your article e370 note now what uh your constant assembly note now whatsoever now about my uh now you have to deal with the important part about States reorganization and the conversion of yes the state into a UT how do you answer that all right I’ll take a little time
On this one not unrealistic time but there are three four judgments which are direct judgments would bear in mind the difference between our Constitution and say constitution of America where there is a contract between the state and the federal government and that is how they form the United States
Thus federal government doesn’t have the power to even alter the boundaries of the states because it’s a it’s a it’s different and distinct uh there’s no contract between the states and the federal government in the U.S the internet 13 colonies came together in a former 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 kind of kind of uh leaning towards unitary uh feature I’m not arguing on that unitary versus federalism
But at times the nation requires to reject the boundaries and the status of their states but there are several considerations and therefore at the outset Melody I may point out that this is a case one of its type which is not to be encountered by the court for example if Gujarat was to
Be bifurcated or madhya Pradesh was to be bifurcated the parameters would be different but when Jammu and Kashmir considering it’s very strategic importance border state history of terrorism history of blood infiltrations history of outside influence outside means outside the country etc etc look there would be several
Considerations in the mind of the girl it’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 are human based on border states is a problem we have many states on the border no history also the history
Country but I have given the details in my affidavit filed long back how what the situation in Kashmir is developing the number of deaths of civilians the number of debts of security forces the number of attacks the number of stone pelting the number of blood every week
Two or three days of herthal paralyzing schools hospitals Banks business houses everything but all these are policy considerations Lord 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 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 a new concede that power to the Union in respect of every Indian state you’re not saying that you should concede that no this only exists for J
And K it exists for every index the power is for all once you once you concede that power to 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 okay
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 statement 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 at different times the Northeast all border states one of the states in North is 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 so the worry which is Justice expresses is that and and your 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 now at least those border states I understood your argument that these border states are category by themselves how do we distinguish between Jammu and Kashmir and any other border states not in any none of the border states take Northeastern states or Punjab as
Your Lordships give an example what possibly is being pointed out you can’t say because it’s a border state so it has to be treated I’m not saying it that’s not the distinction I’m drawing because then it’s a very important there are several border states Gujarat Rajasthan uttarakhand don’t misunderstand my submission that
Because it is a border state it requires different treatment do not kindly see the consistent repeated situation which we are facing since decades on a daily basis is not happening in Gujarat or north east or any other border state here is a border state where one of our
Territory is occupied by Pakistan or we have Pok I have given figures what are the debts taking place every year right from 20 years before this is a problem faced by the nation from decades since decades these decisions are never taken as knee-jerk reactions there is always well 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 Lord the youth which used to be employed
By the interest not immunical to India maybe Terror groups of whoever and were paid never gainfully employed because 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 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 there are some other factually incorrect statements
Were made below by one of the councilman 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 let’s 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 give the assistant yes there are a lot specific judicial
Pronouncements no but we will go to the judicial pronouncements first look at the I will look at that the statue before that may I request your options to have a just bird’s eye view of the reorganization act itself no one has shown that my Lord to your
Lordships I want your Lordships to see that you look at the organ reorganization act that will provide us I’m not reading I’m not reading every part I’m just taking a lot shift through the titles just in a minute or so yes also I I would like to know whether it’s
Some kind of a what is the nature of exercise of that power is it a permanent exercise or power temporary exercise of power what is 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 go let’s go to article three articles
Article 3 formation of new States and alteration of areas boundaries or names of existing States 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 now let’s read uh Clause a in the light of that yes this very reorganization has been subjected envelope this one Double Quarter said that it is permissible this reorganization has passed the master of your Lordships under three and fourth the Judgment I will show 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 then B increase the area of any state diminish the area of any state alter the
Boundaries of any state but here this would also result 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 argumented 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 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 say a union territory of uh Jammu Kashmir and ladakh but I don’t want tomorrow to pitch 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 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 ladakh and then the remaining you carved out and said this will be the union territory of amount to reading suppose you have 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 uh one UT only then it is form a new state by separation of territory feminist state that has not occurred no UT has been carved out
Or by uniting two or more States or part of the state over uniting any of the territory how will it apply suppose you are not crowded out 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 you don’t separate and create you really how do you contemplate converting a state into UT and if I’m just saying for the sake of arguments if that is not possible can you do that by carving out the UT and
Making the other also UT there is no restrictions and this is how modern it 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 eating so can you do that and say JMK state will remain as it is less boundary but from State it becomes a UT
When we want it we’ll reconvert it back to the state my first reading is separation is necessary that’s my first video that is what is a little because that question we are not faced right now in this that if you cannot convert a state into a UT
Then can you carve out a UT 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
Political things that’s why I’m saying this less complicated but you say no we carve out a portion of the Assam as UT and also convert Assam into UT that’s the testing population it would be an extreme blood 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 the dark 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 act and
Remained a union territory it is a permanent Union it was a part of state it was a part of a state and became a union territory to be the common capital for two sister states that one then you have a progression where certain areas of existing States became
Union territories in the progression of making them States that’s the North East 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 staged you can’t immediately make them States Parliament can certainly make that
Because 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 future point of time are sufficiently stable institutionally we will make them a space which we did in the Northeast put something perhaps you may look at
What we are trying to suggest why is it not possible for the union to say that well right now say in a case of a particular state we have such an extreme situation in terms of National Security in terms of you know other we 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 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 now the nation itself doesn’t survive there is no question there is no relevance of states or union territories
Should we not give that allowance to Parliament to sort of postulate that for a certain period in the interest of the preservation of the nation itself in the interest of the preservation of the Union itself we want for a certain stipulated period that this particular State should go
Into the fold of Union Treasury on the clear understanding that this shall revert to a position of a state over a period of time you can’t lay down that period in a given case given case it may be six months in a given case it may be one year but that progression I
Think the government has to also make a statement before us and look that progression back to a state has to take place that’s exactly I’ll read no not after the lunch that’s exactly the statement made on the floor of the house I’ll read one of their statement that this is not
A permanent feature after the situation returns to normalcy we want it to become a state again I’ll read one of that statement and then after lunch you would also have like I mean we don’t want to bind you down to uh because we are conscious of the fact
That these are the 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 there is a but I will uh Mr solicitor and Mr attorney restoration of democracy is a very important absolutely 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 will be 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 Malad National integrity is there a road map yes yes no it is so permanent feature but I’ll make a positive statement tomorrow that is day after because I’ll have to meet mother before Christmas yes yes not uh
Ladak would remain that’s what we have understood but we’ll meet uh personal email and we will make a statement but I must tell you a lot so far as ladakh as I’ve already already pointed out that uh 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 not either lose word I am using that is is held in October 2020 for 2016 seats and for kargil it is going to be held on 10th of September 23. so the dark election would be over
I name a lot your Lordships need not open my Lord it is volume 10 document compilation volume page 763 volume 10 page 763 that I am reading poor lines from Lok Sabha and four lines from rajya Sabha because something said on the floor of the house has its own sanctity pages
763 volume 10. 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 envelope relevant is the last para Jackson
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 velocity 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 relations through the judgments on article 3 4 whichever way melodious would like me to Google I’ll read but not only cite few judgments all right let’s reorganization
And three fifties not 162 Colonial options have led compilation my written submissions volume three uh combined with conservation 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 because 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 I’m gonna do this uh UT mother of Jammu and Kashmir gamer came up for consideration of this
Honorable Court you know that page 162 the Judgment I closed the compilation volume so I’ll have to research your volume three volume three this 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 volumes 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 the Judgment of this in case of Jammu Kashmir the present reorganization article 3 provides that
Parliament May by law form new States and alter the areas 89 I’m sorry maybe 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 Clauses 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 8 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 but a different Lordships is holistically article 3 and Article 4 and I am saying this academically I am not teaching it Melody for this particular
Case but there is nothing if we read as a common uh scheme of malada reorganization that one state for a good reason the threshold of your lordship satisfaction would be higher can be converted into YouTube because 4 says 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 Proviso of course now what ex article 3 your Lordships have applied 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 system but this is perubury is considered burial 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 about the relevant facts I have quoted and I’ll read this is a five judge Benchmark speaking to my Lord Justice gajendra gadkar 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 beruberi 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 invested 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 state 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 is 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 68th 27 dollars 66. 27th August 66. and just give us ramti shows I wish 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 um just give us the date that sauce 11th August 1965. all foreign kindly directly go to prod your lot ships have seen page 167 the view of Justice Khanna Lord uh justice really high court and thereafter
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 my Lord I am confining to highlight it page number is not mentioned 371. even page 169 citation 371. so 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 wasted 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 my 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 also babulal Paratha Malone’s recollect freedom of speech and expression Lord here the views 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 but 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 an 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 were 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 it is not necessary even to invoke the provisions governing Constitutional Amendments only one line melod now coming down to
One line kindly without appreciate it says India is an indestructible Union of destructible units foreign law of Lord 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 it 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
Master through the division or you know of Punjab between haryana and then parts of Punjab going to Union territory first even Himachal Pradesh then Himachal Pradesh itself coming becoming a state and then probably Cochin and travel core is another example which was given the third is this
This is the way uh because once you suspend the Proviso that 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 touched upon
In bhumai Sr bomai please come to page 173 when 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 Lord kindly see Assad bromide para108 . para108 my Logistics is called page 173 I have quoted Sr bomai but last four lines on that para 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 Sikh 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 president shall 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 note Parliament can therefore without the concurrence of the states or States concerned 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 so mother it is in substance in my respectful submission said that it’s a provision which is strict compliance is not insisted 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 order 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 but these are my judgments on three and
Four would your loveships like to have a bird’s eye view of the ACT but volume three 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 page 112 but 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 Malad 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 seats to successor Union territory of Jammu and Kashmir and one seat 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
Sweets are left reduced but Mr Napoli said the seats are reduced it was sixth in total now it is five Jammu and Kashmir and one ladakh in manot 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 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
In 13. all and from the appointed date 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 Malad this is amending this is amended what is placed is not Amendment look I’ll just place your
Lordship copies of the amended act I am not reading from the segment I will 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 look 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 but at page 10 foot of the page section
13 my Lord Justice it’s 10 right side a left side top is the pagination section 13 on and from the appointed day the provisions contained in article 239a or any other article containing 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 in 14 minutes section 14 there shall be an administrator appointed and the 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 the total number of seats in the Legislative Assembly would be 107 then but every entry except police is Lord now for obvious reasons but I
Need not even explain why police is directly under the control of the center and plus 600 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 tables then come to Malad section 16. followed 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 you need not be a permanent resident for being
Qualified to be elected but 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 you know 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 law husband
Or there is a provision special provision as to finance follows the Delhi the Delhi models of course one and land one two and eighteen is land is given to the uh State legislation the land is not even not giving which provision not here not here here only police and
Public order right not in Delhi oh I thought you were saying land is also taken away no no no in Italy in 18. 1280 we have trouble for a long period but on that I wanted to avoid that but it is argued so many times that it was
That one two and eighteen star is stuck like a mantra in the brain you know but here melod 18 is not their mother it is only public order and pollution and foreign 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 you’re saying the same principle is followed here I don’t think it is 239 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 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 foreign
By the Constitution to make laws with respect to any matter for the union territory of Jammu and Kashmir or any part thereof so this provision does not Empower Parliament to make a law on this 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 that such matters a matter illuminated in the state level that’s fine no this is a matter of uh constitutional position Parliament can enact a law on all the three lists for
Jammu even even in absence of subsection to it could have opposition so I’m not reading will not say that even the assets will go to 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 yesterday I am placing it for a lot
Since consideration what the government’s rule Governor’s rule is in challenge as I have pointed out after 14 months 142 so my written submissions for 142 volume 3 142. Lordships have a charge yes so what I’ve done is I have mentioned the number of the petition with the name foreign 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 debt and other 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 of uh pleadings but there are no pleadings that’s all I am but now look I am not reading but there are no pleadings that it is arbitrary it is
Illegal and therefore declared 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 at 146 of this very note melodies on the question foreign
More than 22 years of training on this exactly more than 22 years of training 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 the specialization we would meet outside the chief justices chamber every
Morning uh just a little bit of pulmonary and then we go to car 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 146 last part only underlying portion 147
But this mother kindly read below 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 Sybil read
The first part of it Lord is attention melod missed this last partner therefore I am for completion this is the lawn but kindly come to the next judgment murder at page 148 state of Rajasthan versus Union of India Lord Seven honorable judges brother but some the
Bold Department there is a part which is made bold the Learned Council your lordship my Lord Justice 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 faith accomplice to the two houses of Parliament and neither house would be able to remedy the Mischief then 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 virtue of the Proclamation which would bring about a final and irrevocable consequence if the president has risen to believe that either house of parliament may not approve it or also the control of the
House of parliament May 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 in 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 which is not 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 is beneficial by the president same same treatment 146 all day I may 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 that 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 re-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 in force 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 write 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 conditioned precedent to 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 entity 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 you away if your lordship would like me to read I I can read everything it is therefore not possible to exceed to the argument of the petitioner in the red petitions 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 Bowman please come to page 150 next page my Lord Justice seventh and Justice School deep things 153 summary of conclusions on this point it is conclusion number four Roman 4 Roman 4. since the provisions contained in Clause
3 of article when am I with theological age 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 still at least both the houses of Parliament have approved of the proclamation and this is definitely the majority so look here when the Imp the actions
Which are impuned were taken they pass the muster Thrice the proclamation past the master Thrice uh then Justice pandian I find myself in agreement with the opinion of Justice seven on his conclusion one two and four to eight with which Justice BP jivan 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 Abu 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 paging 150. when an elected government is not in office the orders of the governor under article 356 1A is 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 itself uh kindly come to my Lord uh one paragraph of in Sr bomai at page 152. Justice jivan radius Exposition on this at page 153
I am not reading the rest mother your Lordships May Lord it gives me Lord what what happens when 356 is uh 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 your lawship
Gets that movement yes coming to subclause 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 government 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 straight along 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 but I I’m not I wanted to read my Lord the concluding speech of uh Dr ambedkarma at the conclusion of the assembly constituent assembly but if time permits
At the end my Lord I’ll wait 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 inhabits uh was 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 six more than 61 years ago we had a if you launches we collect I given my two sets of written submission see that at volume detailed written submissions which is at volume four I don’t propose to read at length
The with some essential aspects which I thought China Supply baby of a addition to the arguments made before the lordship stages with volume when I do that this is a volume four PDF for example page it’s a separate written submission on 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 submissions your opening arguments yes which company something 61 years ago we had puranlal wanting to if there is any health problems oh my God 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 very nice i i in continuation of my summary hope your Lordships have been taken through the whole historical narrations and in matters like this is very difficult to capture their entire history
Through a list of days narration we want to communicate to the court what exactly happened for a period of five moment was years before 1915. and they convey only a very telescope point of view and a large amount of literature which is available to all of us say are these
Momentous process took shape to a variety of efforts and engagement the ideas and conglomeration of thoughts but by and large but the history has been brought of foreign the understanding of not only article 370 but with the Constitutional integration process could have been incomplete and that’s why the detail list of days narrations
Occupies an important space now they said 61 years ago foreign election now his dream has come true you had to wait for 16 years for all of us we’re all all of us in a way so this this is a this is a grand contribution to what one may say but it
Is very significant historical constitutional process that has taken place in the history of India so why do we have to look at the Historical narrative with that because both sides would like to place a certain perspective on uh why are you talking 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 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 well the rest of the country had gone through all that process Union of States merger of small territories and the idea of a concept
Assembly and framing a constitutional one all that forces have gone through but since there was there was little Intervention which is the political historical fact article 37 tr2 intervene and if you try to attribute to article 370 any other purpose or intent that I think we’re fundamentally mistaken
So we had asked to go back I would probably ask you not to go back to 1949 1950 and look at in the positive 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 60 70 years later and trying to imagine into article 370 what contemporary contact you want us to imagine I said that imagination to a large extensive forbidden so we had to look at it from the Texan context and the intent and content of article 373
If you quickly formulate my understanding about the reserventory I don’t propose to read and extend so many of the judgments which have looked into article 370 we launches kindly turned to militant submissions submissions at least turn before that to page 30 paragraph 9. 0 three dimensions of article 370. a million enabling Parliament
To legislate in respect of matters in para one and two of subclasses B of clause one of article 373 B application of the provisions of the Constitution of India and C termination of the role of article 370 under philosophy of article 370. these are the three dimensions and the requirements of consultation
Concurrence and recommendation as the case may be or the processes to be followed by the president I think for the purpose of our understanding is honestly to go into the question of concurrence and consultation Etc on the distinctions but uh since you are debating on the Proviso to
Philosophy of article 373 and the recommendation clock 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 renewal the legislation making power of the governor has been noticed by this court on 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 page and turn over to pay 32. middle of that page page 32. the sentence beginning the extent of the legislative power of the governor the extent of 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 and further the governor if the words of Lord Hansberry and at Moses creation of enactment for the attainment of objects pointed too in that case emerge we spoke
For consideration judicial committee for 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 be thought and good governance the same could not be sustained as valued 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 the power to apply logic inherent when 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 will 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 conferring power in the president is not in the nature of an executive part of the president they execute a head he is conferred a legislative power very extensive and wide power the power to modify a parliamentary law the power to subject a constitution to modification is a very vast power
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 to put in place
The comfort and the aspirations also to be not to be compromised and therefore you the concurrence under consultation Mr Tony if we accept that position is something which we 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 Constitution assembly again we understand you argument to the extent that there were conflicting views expressed in the costume the same day
Which is quite true I 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 Kylie now turned to page 36 but we try to understand if this is a constitutional integration
Process and constituent assembly again K will play a role in the Constitutional integration process how do you really make that happen so that I said the two important elements of 317 namely extending the provisions of the Constitution the one hand and enabling Parliament to legislate in a meanwhile
As the assembly is in the process of attracting a constitution for the state of jnk very essentially important steps of parliament in the meanwhile will legislate for the state of jnk equally important the two limbs important limbs these are 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 exchange went until recently we all night the CEO of 54 1965 by which time the majority and important
Provisions of the Constitution were extended 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 one would have wondered why it should have come with three at the time of enactment to the
Constitution or constitutional integration with jnk it will take an entirely different shape so that was certainly not the intention so if a Terminus Point has to be has us brought in and that power has to financially invested in the president we article 370 begins with a non-abstinal clause
I understand not presenting 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 have 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 Universal reversible irreversible without treading 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
To the deliberation the legislative Constitution assembly and it must come to an at that point of time and if it came to an end by that point of time because sections three and five virtually captured the essence of constitutional integration and I think more the required to be done
After section three and five becoming the part of the Constitutional document it hardly matters whether you call it today the Constitutional we’d 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 read article 371d and if I am writing secular essentially updating order except those two controversial orders where article 35 ah 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 ask this question 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 absurdy’s purpose and terminate it 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 bringing peace and restoration to state of JMK we are trying to tell you that Justice ability probably will not come in now let me try to understand why the jnk the concept and assembly was given only a narrow power of recommendation well yes
It was necessary to have the recommendation taken from the consequent assembly for the necessity does not enlarge the scope of the role given to the assembly which is a very narrow narrow role namely a recommendation rule we will probably be able to argue that if the assembly having is all in itself
Probably would have uh expired or you know what is no longer operating he was no longer operative and cannot be operated at all then he says the tale cannot work with the dog Etc although it is 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. so say the president has not lost that power in the presidential poll case her sin was whether the reason of the fact that the Gujarat Assembly was resolved at recently placed at 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 in accordance either mandate of holding an election within a period
Now becomes impossible without electrical quality being available there does not really 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 way of 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 constituency so whatever gaps it suggested Gap may be perceived President says now I feel that there are several situations when such conditions precondition the performance cannot be performed it’s called the
Doctrine of impossibility so therefore the performance is not relaxed but problems will still be done the conditions may be known so therefore if following an earlier president of article 370 1D invocation we had a substitution of legislative assembly in the place of consequence assembly the president follows suit
It’s also bad in mind when attorneys see when it referred to sub Clause D to article 371. to the government of the state so his fund has to take the concurrence of the government of the state indeed or three 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 comics 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 at different side so when 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 is an integration which has to be done will it not be will it not be in conflict with or not being in terms of the entire purport of the app article itself the perceptions about these 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 the article 370. partially or fully question would have been 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 president 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 370 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 and by what other normative we are stick about the relevance of article 370 will the quote judicially scrutinize the exercise of Power by the president today even if but in this case is there any president’s Proclamation
Excising power under Clause 3 to article 370. saying that I’m abrogating article 3 said I’ll just come back we can can I come back to you by after reading of some part of in the line of my presentation kindly come to let me complete this and come to your lordship
To answer a lot of the question page 36 of my written submission they’re 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 Turn the Page 36 paragraph 12.
We will try to extol the recommendation role beyond the 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 another device so it’s an advice to facilitate and enable the president to find as to whether that article 370 has served its purpose and to close it so the the way the whole Clause 3 of article 370 is to render article 370 in operating
That in that context Suppose there is a constituent assembly yes 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 assuming is 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 than article 350 and
I’ll ask you to retain 370 the way we wanted 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 use in article 370 of all these distinct Expressions concurrence consultations at their context
Entirely distinct idea altogether if the Constitutional assembly was containing that even if the constituent assembly were to say that please don’t abrogate 317 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 the concurrence for the purpose of
See concurrence for the purpose where you get the provisions of the Constitution explained it stands in a different uh consultation where the parliament will enable to enact during that period consultation so 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 the Constitutional integration process is over now is there anything left by way of invoking article 370 or extending the
Provisions of the Consciousness that question will have to be necessarily asked when that question is asked what is the role of the constitute 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 conditioned precedent I’ll give you two examples see there are two examples in the Constitution where the word recommendation is used article 109 and hundred and yeah 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 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 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 descent 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 they’ll 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 rule but I say it’s still only a recommendation let me try to explain 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 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 constant assembly a j and k can have a final say on 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 keeping in mind that once the Constitutional integration process is completely 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 concept 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 the recommendation also doesn’t make a
Difference is that the submission of autism I I’ll personally take that advances the question that’s only when 1032 yes uh there are different qualification whatever they want kind of opinion or recommendation should be acted upon this is so it will be refer to the commission summation will give an opinion and then
It says and it shall act according to such opinion this is missing in fact 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 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 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 to the president still it survives still 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 assembly is 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 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 not suppose 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 don’t appreciate or apply with modification that none of the
Provisions of the Constitution of you 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 that’s Proviso
Will no longer be applicable after the constituency is not there but that will not deprive the part 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 would
Be forbidden under the scheme of after 37 . so 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 Constitution assembly was that’s assuming that the constant 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 under article 370. and everything around it revolves around it 371 a b the parliament have been able to legislate extensional provision 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 370 itself second aquatic 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 so therefore it’s not that these were incidental 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 317. with a certain constitutional recognition it’s not a constitutional status a constitutional recognition in article 370. I guess because we 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 constituent assemblies you are 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 is 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 a gradual and imperceptible integration apart from the unconditional accession to India which we saw right at the outset in article three there’s no difficulty about that but the only Point really is this two ways of looking at article 373 if the Proviso
Can’t 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 the answer will be no no 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 president what what Parliament really did was this they 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 constant assembly there is 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 say casualty but one dilution and that dilution is the the role which is ascribed by the Proviso to article 370 bracket three
Now that role can as you are trying to as you’re trying to sort of uh elaborate that role is merely recommend day tree merely because that role is like a recommended tree does not mean that it can be dispensed 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 and I just add one thing sorry for you I’m sorry to interrupt you see after your main 367 you say legislative assembly is equal to Constitution we have to take it to the logical conclusion
We’ve accepted that it exists move but that’s right that’s right but 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 under 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. hold on 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 161 assembly technically was not bound
By one and two it could have said that 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 that’s why thank you foreign
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 is that a substantial degree of integration had already taken place in
The last between 1950 and 2009 69 years what was done in 2019 was it really a logical step forward to achieve that integration absolutely assimilation meaning for us we have interesting issues yes very interesting Mr attorney about how long would it take about half an hour sorry maybe an hour more
After that Mr the way they will thank you
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