There was an assurance given to the princely states as a result of which and according to the petitioner in lieu of which they chose to join the union of India and therefore article 370 is the result of that promise which the Dominion of India then and subsequently Union of India and
Therefore 317 is to be treated as permanent but there were two states a constitutional Provisions named the article 291 and 362 which provided for the previous but the central government exercise the powers and article 366 and deleted the term princely States and construed that since princely States no
Longer exist there is no question of privy purses or other privileges the definition was Princess the Lordships are not required to go into that question right now 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 contention is 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 verses yeah they are their main plank of the content
Contention is that this was 370 was in lieu of our exceeding and therefore you could not have done it but the after the Judgment in madhura of India the government repealed or blood uh that is a Constitutional Amendment Constitution under 360. correct but we will not also
Have to look at the original Maduras in there 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 more this you will have to then deal with the point as to why was it necessary to take recourse to 367 then when I come tomorrow 370 the
Interpretation I’ll deal with that but here but in substance if if I wear tomorrow summarize the ratio of this judgment in one line the court said that any change in the Constitution which brings everyone at par can never be faulted with princely States after formation of the Constitution of India
Lost their special 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 there’s a little bit of a background about kurungward 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 uh there’s a place a place of pilgrimage called uh nazobachiwadi where 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 because
Krishna is rape and and the lands are extremely fertile because of the Krishna River maybe that may be the reason why the human habitation must have established their forces of water and well all earlier our earlier civilizations are on the bank not here kindly bear one factor in mind
370 sub article 3 has an inbuilt extinguishing provision 370 sabbatical three is a provision whereby 370 can be extinguished that’s the distinction but I’m on a little wider argument made by the other side these articles even remotely did not suggest that they are temporary as against bullet 370 which by
Its very definition says it’s temporary and I will also will not be able to attempt to demonstrate that it could never have been but for temporary such a drastic the provision the Visionary fathers and mothers of the Constitution would never have kept it permanent but two organs
Can change the Constitution the way they like but that’s a separate argument so what was done was by a constitutional order which is unheard of blood except in 370 the vulnerable president virtually declared two Provisions to be nalithi 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 because he’s 66 there was some stipulation because those the rule of primary nature and other things were all recognized in that that’s how everything yes but every ruler was important because he argued that that blood blood trees this
Guaranteed them not only privy persists some privileges correct not all states were divided into gun salute States somewhere 21 Guns salute somewhere the smallest was one gun salute did it refer to presidential orders in that merger agreements also no at that time there won’t be any president as such no no
There was none no because at the time when the agreements were signed they won’t be here thereafter the Constitution was made and the president The Honorable president was elected no merger agreements were signed by Dominion of India or subsequently government of India by the secretary minister of State Ministry of State 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 applications they are you know therefore I I said it gets subsumed and now the final document is the constitution of India which we have given to ourselves a lot even removal of some provision according to this judgment can further the Constitutional objective and can be in furtherance of the basic
Structure of the Constitution fraternity equality is a basic structure of the Constitution it’s a part of Brotherhood it’s a part of equality part of fraternity and if any provision that which keeps out of the total composition of our constitution as an appendage as a transitory provision to
Be removed at an appropriate stage if it is removed it furthers the basic structure that it enhances the equality and fraternity which is the Bedrock of the constitution in this view look it in my respectful submission may not be necessary to re read mother of sindhya if your lordship would visually I can
Assist your office with that but we will not ultimately read the same paragraphs based upon which mother it is distinguished that when you are doing something earlier it was done by a presidential order in madhavra one definition was deleted with the president it never possess even today it doesn’t possess but
Only in one provision that is 370 where you can amend any part of the Constitution so explanation 367 mechanism is used this is the DraStic nature of this provision 371 permits two organs the government of the president president would mean act and advice Aiden advice and the government of the
State again Aiden advisor please please be 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 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 murder in this judgments
Solicitor can you can the abrogation stand independent of the modification which is made to article 367 here look that is my submission but even in absence of the Proviso or explanation the last explanation what it does it merely substitutes the term constituent assembly with legislative with legislative assembly but my submission
Is going to be that in when the constituent assembly is dissolved without any recommendation that part of the requirement goes because Proviso Proviso becoming otos cannot result into the main provision becoming inoperative then the president was left to his own choice and 367 mechanism is so far as 370s that
The a presidential order was issued because if you see the provisions of article 366 is 22 as it stood prior to the amendment by the 26th amendment if you have this red book it may not be in that you’ll have to get it in the red book at page 372. 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 perpetually under clause 22. and the object was now we are der recognizing you if you are being re-recognized you lose the benefit of your preview person article 291 that
Assumed to be the consequence of the recognition right so this was done in exercise the power which was conferred under Clause 22 as it then stood prior to the 26th amendment how court said Look by request to a presidential order you cannot override a substantive provision of the Constitution namely
Article 291 and article 362. 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 here 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 biology you
Know the distinction is two-fold distinction a 370 is the only article was the only article which permitted the president to change any other article so 367 your Lordships have shown I have shown the chart that 367 mechanism was used in past that’s that has been the convention so the only thing which
Happened a lot on Fifth and 6th of August was that using the mechanism of 367 the constituent assembly was changed it is not worse mechanism which which was used earlier to for instance substitute you know the southern area Etc that was with the concurrence of the assembly no only once that was three
That was 370 sabbatical three this this 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
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