It would be easier for women to persuade your Lordships The View which according to the government is the correct view of interpretation Lord this question arose for the first time in the case of mother of India where the government withdrew the privy purses at the privy purses where
A bargain in lieu of which the princely state exceeded to Union of India 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 and their contentions that this is what has been done by altering article 367 yes in our case they are trying to bring in on bring our case on parity with the previous person they are their main plank of the content
Contention is that this was 370 was in lieu of our exceeding and therefore you could not have done it but the after the Judgment in my mother of India the government repealed or that is a Constitutional Amendment Constitution under 360. correct I’m saying that Mr I was just about to
Answer that it was a constitutional moment but government repeal them so the route was taken away that is namely article 291 and 362. that came to be challenged before this honorable court and the matter went before The Constitution went in case of raghunath Rao ganpat Rao versus Union of
India Millers the Judgment which your losses would find versus Union of India 1994 supplementary 1 SCC 191 but we will not also have to look at the original Maduras India it is 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 dish you will have to then
Deal with the point as to why was it necessary to take recourse to 367 then in substance if if I were to not summarize the ratio of this judgment in one line the court said that any change in the Constitution which brings everyone at par can never be faulted with princely
States after formation of the Constitution of India lost their spatial status and the word fraternity used in the Preamble has to be given some meaning and this has the impact of bringing all citizens apart where will we find that in the case law compilations volume seven of case law compilation PDF page 537
All right I’ll read relevant part number because considering about the time constraint uh I I intend to complete Melody on this side of the lunch money also after you finish this go back to madurai one correct because if you don’t go through it then you know then
Obviously there’ll be your there’ll be a front in the rejoinder that you know you have not dealt with mother but uh let us see how mothergraph is dealt with him first of all but I will go to Madara one but there is nothing because that will not kindly come to page one
So that your Lordships have murdered the background uh the two red petitions your Lordships paid 540 till PDF 543 Fellowship gets done yes I understand these two repetitions call in question the Constitutional validity of the Constitution 26th amendment one second one second foreign validity of the Constitution 26th
Amendment act internally on the ground that it violates the basic structure an essential feature of the Constitution of India and he is therefore outside the scope and MBT of constituent powers under article 368. in addition certain directions or suitable orders are sought for declaring that petitioners continue
To be the rulers of the successor rulers or the successor rulers as the case may be and directing the respondent union of India to continue to recognize their personal rights amenities privileges as rulers of their erstwhile State and also continue to pray pay preview purses kindly come to the bottom of the para
Which starts with Malad by the said instrument the petitioner accepted the matter specified from the bottom myelogenesis by the said instrument the petitioner accepted the matter specified in schedule there to 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 I am sorry I am reading page 543. foreign by the seed instrument the petitioner accepted the matter specified in the schedule there too as matters with respect to which the Dominion
Legislature may make laws for the state and declared his intent that the governor general of India the Dominion legislature the federal court and any other Dominion Authority established for the purpose of dominion Shell subject to terms of the instrument exercise in relation to gurundwad state
A such functions as may be wasted in so and so so and so so and so of the instrument provided that nothing therein shall be deemed to commit the ruler in any way to acceptance of any future constitution of India or to Fetter his discretion to enter into agreements with
The government of India under any such future Constitution subsequently a number of rulers executed agreements of merger and transport the administration of their states to the Dominion of India the merger agreement was in the form given in the white paper on Indian States and it was executed in so and so
They were not paraphor you know thank you 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 right on the banks of the Krishna maybe that may be the reason why the
Human habitation must have established there near the forces of water and well all earlier or earlier civilizations are on the Bank of America but now your losses may come to page 548 the arguments here are two constitutional Provisions were dispensed with by but they were repealed by way of a definition process
Not like unregular interpretation Clause but 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 am on a little wider argument made by the other side the submission my Lord Justice
The submission Advance by Mr surabji the Learned senior Council appearing on behalf of the 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 Ambit 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 seem 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 born by our arguments article 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 con continuance of privy purses enshrined in the agreements and Covenants where an integral part of the Constitutional scheme and an important part of the Constitutional structure and they were to be fully honored and not Cast Away on a false moras of public
Opinion or buried under the acts of States but the impune expressi has abolished and destroyed those constitutional provisions of article 291 and 362 affirming that guarantees and Assurance is given to the rulers under the those agreements then your office May kindly come to Pera 23. it is further emphasized that Sardar Patel who
Made it clear that according to the vision and views of the Constitution makers the guarantees of privy purses privileges Etc were perfectly in keeping with you the Democratic ethos and principles of Indian people then the Learned Council stated that views expressed in the constituent assembly were unanimously accepted and there was
No descent and that in fact the closing remarks in the debate of Dr patabi sitaramayya where only remarkably confirmatory of the permanence and indivisibility of the afford set 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 losses similar kindly see Para 28. at page 551
Agreement stated that history of the developments leading to the merger agreements and framing of the Constitution clearly show that it is really the union of people of native states with the people of ursul British India and the instruments of accession were only the basic documents but not the individual agreements with the
Rulers and therefore to attribute the agreements entered into by rulers as a sacrificed by the rulers is unfounded secondly the nature of the covenants is not that of a contract because a contract is enforceable at law while this covenants were made non-justiciable by a constitution provide article 363
According to him the Covenant the covenants were political in nature and that no legal ingredients as the basis can be read into these agreements and that the guarantees and assurances embodied in article 291 and 362 where guarantees for the payment of previous says he has urge that such a guarantee
Can always be revoked in public interest pursuant to fulfilling a policy objective or the directive principles of the Constitution that being so theory of sanctity of contract or unamendability of article 291 or 362 did not have any foundation he continues to state that the theory of political Justice is also
Not tenable because political Justice Means the principle of political equality such as adult suffrage democratic form of government Etc in this context relations can scheme alert the citation then Para 29. before embarking upon a detailed discussion on the various facets of the convention Covenant convince 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 States 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 at page 554 PDF 554
Now will not be honorable Court discusses Madara because mother obviously was cited that we said that trivi 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 then 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 the then 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 add by article 360 eight 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 nalidi the presidential order paraphoti der recognizing the rulers were questioned in madhavrao sindhya versus Union of
India by filing repetition under article 32 challenging its on it as unconstitutional ultravirus and void an 11-jet bench of this court by its judgment dated so and so struck down the presidential order being illegal ultravirus and inoperative on the ground that it had been made in violation of
Power of the president of India under article 366 double two of the Constitution and declared that repetitions would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impune orders therein had not been passed here it may be noted that Justice mitter
And Justice Ray gave their dissenting judgment there upon they started getting preview purses but kindly come to there are 77 at page 562. response may not help a lot uh assist your lordship either 77. according to Mr Surah foreign That the president of India will recognize the ruler or something because of inheritance and otherwise that was there yeah probably 66 there was some stipulation because those uh the rule of primary nature and other things were all recognized in that that’s how every yes but not every ruler
Was impacted because he argued that that uh this guaranteed them not only privy persist some privileges correct not all states were divided into unsolute States somewhere 21 Guns salute somewhere the smallest was one gun salute David 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 thereafter the Constitution was made and the president The Honorable president was elected stationary 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 foreign 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 memorandum of agreements executed and ratified by the State of Union Union of states were embodied informal agreements under the relevant articles of the Constitution and no obligation flowed from those argument agreements and Covenants but only from the Constitutional Provisions to say differently after introduction of
Article 291 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 covenants and agreements
Was casual and subsidiary and the source of obligation flowed only from the Constitution therefore the contention urged on the use of the words guaranteed or assured is without any force and absolutely untenable the next vital issue is whether the impune Amendment act damaged any basic structure or essential feature of the Constitution
According to Mr surabhi the repeal of article 291 and 362 which were an integral part of the Constitutional scheme the identity of the Constitution has been changed and its character has been fundamentally altered the total repeal of these articles coupled with an Express repudiation of the guarantees embodied therein has resulted in
Nullification of a just quid pro quo which were the essence of these are guarantees he has 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 sing a lot 79 Mr Didi thakur that the father of my Lord Justice thakur my Lord the Chief Justice in addition to the has stated that one of the tests to determine whether the provision of the Constitution was intended to be permanent or could be deleted or amended
Is to see whether the Constitution makers had intended that to be made permanent in support of this submission he plays much Reliance on the observations of Justice mudholkar in sajan Singh mother 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 plus 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 submission he relied upon certain observations made by Justice Shah in his
Judgment in madhavrao observing is dealt with Melody and distinguished by the provisions enacted in article 366 22 291 and 362 of the Constitution the Privileges of rulers are made an integral part of the Constitutional scheme and an order merely der recognizing a ruler without providing for continuation of the institution of rulership
Which is an integral part of the Constitutional scheme he is therefore plainly illegal the Learned attorney general has vehemently opposed the above submission stating that the expression integral part of the scheme of the Constitution used in mathura are not the same as the basic structure and that
Expression has to be read in the context of a challenge to the ordinance which sought to render negatory certain rights guaranteed in the Constitution then existing it is further stated that the attack on 26th amendment based on principles laid down in madhurao 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 but not executive power which he did not possess just to contrast article 370 has a constituent power in the precedent and the subarticle 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 persist 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 three double six double two D recognizing the rulers and stopping the privy purses privileges Etc enjoyed by
The rulers now this is important this is the distinction this order passed by the president was the subject matter of challenge in 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 where me the 26th
Amendment itself was passed by parliament to overcome the effect of this judgment Now by this amendment article 291 and 362 are omitted article 363 a is inserted and Clause 22 of article 366 is amended therefore one cannot be allowed to say that the above say omitted articles and amended Clause
Where the essential part of the Constitutional scheme so they have to be read only in the context of a challenge made to the presidential order which sought to render 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 on the question of federal diversity we are of the opinion that the observations of Justice Shah in madhavrao that privileges of rulers are
Made an integral part of the Constitutional scheme and that the institution of rulership rulership is an integral part of the Constitutional scheme must be read in their proper context that was a case whereby a presidential order the rulers were deprived of their privy purses and other privileges while keeping article 291 and
362 intact in the Constitution this doesn’t arise here indeed the said presidential order was issued after the government failed in its attempt to effect an amendment on those lines it is in that connection that learned judge made the above observations it is clear that the learning judge used the word integral
Part in their ordinary connotation not in lexicographical sense ordinarily speaking integral means of a whole or necessary to completeness of a whole and as forming a whole our constitution is not a disjoint document it incorporates a particular socio-economic and political philosophy it is an integral whole every provision
Of it is an integral part of it even the provisions contained in article 21 temporary transitional and I’m sorry part 21 temporary transitional and special Provisions one may ask which 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 prepare a 96
At page 566 yes permanent retention of the privy person the Privileges of Rights would be incompatible with the Sovereign and Republic form of government such a retention will also be incomputable with the egalitarian form of our Constitution that is the opinion of the parliament which acted to repeal their foresight Provisions in exercise
Of its constituent power the repudiation of the right of privy purse privileges dignities Etc by deletion of Articles so and so which the recognition of the rulers and payment of previous 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 serious argument has been Advanced that the privy purse was a just quid pro quo to the rulers of Indian States for surrendering their sovereignty and rights over their territories and that move for integration begin on a positive
Promising promising note but it’s 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 British 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 opposite to refer to the observations of Justice Bose in virender Singh judgment every Vestige of sovereignty was abandoned by the Dominion of India and
The states and surrender to the people of the land who through their representatives in the constituent assembly hammered out for themselves a new constitution in which all were citizens in a new order having but one tie and owing but one Allegiance devotion loyalty Fidelity to The Sovereign Democratic Republic that is India
But thereafter it is also worthwhile to take note of the historical process of States integration proteolysis May directly can come to one zero nine at page 569 107. on a deep consideration my Lord beta107 on a deep consideration of the entire scheme and content of the
Constitution we do not see any force in the above submission in the present case there is no question of change of identity on account of 26th amendment the removal of article 291 and 362 has not been made has not made any change in the personality of the Constitution
Either in its scheme or in its basic features or in its basic form or its character but please read 370 in this does it change the personality of the character of The Constitution the question of identity will arise only when there is a change in the form character and content of the
Constitution in fact in the present case the identity of the Constitution even on the test proposed by the council for repetitioners and interveners Remains the Same and Unchained SRI so-and-so has contended that by removing the real and substantial distinction with between erstwhile princes forming a class and
The rest of citizenry of India the Constitutional amendment has at one stroke violated the basic structure of the Constitution as reflected both in article 14 and 51c and treated unequals or equals thereby giving a go by to a solemn treaty obligation which was Sanctified as independent constitutional
Guarantee 109 no this is very very important and crucial for our purpose the purpose of the respondents after carefully going through the above decisions which relate to service matters we are afraid that such an argument as one made by SRI so-and-so could not be substantiated on the principles laid down in these two
Decisions that article 14 will be violated if unequals are treated as equals in our considered opinion this argument is misconceived and has no relevance to the facts of the present case please note this one of the objectives of the Preamble of our constitution is fraternity assuring the
Dignity of the individual and the unity and integrity of the nation it will be relevant to cite the explanation given by Dr ambedkar for Words fraternity explaining that fraternity means a sense of common Brotherhood of all citizens no region no part of the region no 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 the tribals were given autonomous powers for their District council’s co-equal to
What is conferred on the states and that the minorities special Provisions are made in article 30. besides article 25 and 26 are meant to safeguard the minorities and religious denominations the persons to determine the injury will be those for whom these Provisions were made and whose interests are prejudiced
According to him in such a Circumstance the assurance and guarantees given and 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 the afforded special Provisions have any relevance here as repeatedly pointed out Supra
The only question whether there is any change in the basic structure of the Constitution by deleting article 291 and 362 and by insertion of article 363 a an amendment of clause 22 of 366. we have already answered this question in the negative Observer observing that the basic structure of the essential feature
Of the Constitution is or are in no way changed or altered by the impugned amendment we cannot make cermices of its ifs and buts and arrive at conclusion that article 291 and 362 should have been kept intact as special provisions made for minorities in the Constitution
It is but a step in the historical Evolution to achieve fraternity and unity of the nation transcending all regional linguistic religious and other diversities which are the Bedrock on which the Constitutional fabric has been raised the distinction between the erstwhile rulers and the citizenry of
India has to be put an end to so as to have a common Brotherhood the court traces it to fraternity mentioned in the Preamble alert 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 yes in this view look it in my respectful submission may not be necessary to re read mother of sindhya gentlemen if your lordship would wish me well I can assist
Your office with that but we will not ultimately read the same paragraphs based upon which it is distinct that when you are doing something one definition was deleted with the president it never possess even today it doesn’t possess but only in one provision that is 370 where
You can amend any part of the Constitution so explanation 367 mechanism is used but this is the DraStic nature of this provision 371 permits two organs the government of the president president would mean act and advice Aiden advice and the government of the state again he didn’t advise
Lord please please do not 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 of this but my next friend wants me to do the system foreign just note the paragraphs Pera 151 152 and 118 minutes yes I am sorry two zero six Therefore this chord cannot concern itself with the moral aspect of the impunamin the impune amendment is the will of the people expressed through Parliament Lord here the parliament has examined on four occasions with two third majority in both the houses can note the paragraphs which we would be
Reading but since it’s already 11 4500 I don’t wish your lordship’s time my Lord why if possible conclude at one o’clock good in mathura house 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
But ultimately it turned that without deleting article 291 and 362 whether presidential order can be used by deleting the definition only that was the discussion which is distinguished in this judgment can you can the abrogation stand independent of the modification which is made to article 367 here look that is my submission
But even in absence of the Proviso or explanation the last explanation what it does it merely substitutes the term constituent assembly with legislative with legislative assembly but my submission is going to be that in when the constituent assembly is dissolved without any recommendation that part of the requirement goes because Proviso
Proviso becoming otios cannot result into the main provision becoming inoperative then the president was left to his own choice and 367 mechanism is your Lordships have seen but so far as 370s that the a presidential order was issued because if you see the provisions of
Article 366 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. yes that said ruler in relation to an Indian state
Means the prince Chief or other person by whom any such Covenant or agreement as is referred to in Clause 1 of article 291 was entered into and who for the time being is recognized by the president as the ruler of the state and includes any person who for the time
Being is recognized by the president as a successor of sashvula yes now what happened there was initially after you know the the the the proposed amendment didn’t pass master in the rajya Sabha a presidential order is issued purportedly under clause 22. and the object was now we are der
Recognizing you if you are being 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 Maduras 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 we’ve seen 370. to a main 370 which has been done consistently and affirmed biology
You know the distinction is twofold distinction a 370 is the only article was the only article which permitted the president to change any other article so 367 your Lordships have shown I have shown the chart that 367 mechanism was used in past that’s that has been the convention
So the only thing which happened my Lord on 5th and 6th of August was that using the mechanism of 367 the constituent assembly was changed it is not worse there is a 367 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 one 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 foreign to my Lord’s satisfaction your Lordships may come true I’ll show only two Provisions 371 d the Lordships have 371 demons yes this is the first Power such of the other provisions of this constitution shall
Apply in relation to that State subject to such exceptions and modifications as the president May by order specified correct Now read three kindly read three not 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 concerns of the government the reason was for that was very simple because you are amending the Constitution and you are not dealing with subclass
Three or three yes you’re not dealing with subclass three I’m not dealing I dealt with at the end on um 6th of August because subclass uh three only deals with 370 itself itself not other errorships 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 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 Z equals to three correct right but but I’m not kindly I’m I’m sorry I’m almost reaching alert at your lordship’s level but then when you do that can you do that exactly that’s what I’m answering the power under 367 then that’s the point exactly that’s
What I’m answering I cannot do that under sub article 3 367 I cannot modify under three as a particle d that I can do and I have done only under 371 d it has been used as a mechanism and Domino approves it we’ve seen them know anything looking at
It we are looking at it as a matter of first impression the first impression can you alter the import of a provision of article 370 itself by process other than three because what you have done essentially here is no no that you have used 367 to amend the Proviso to 370 correct
They’re 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 the first step was the president under 371 d uh added the explanation that henceforth what the question being put to you
Slightly I think different the question is by making the amendment in 366. by creating constituent assembly with the Legislative Assembly aren’t you in fact amending article 370 Why without taking recourse to 373 to Clause 3 of 370 because article 370 can be only amended it has the effect of it becoming
Permanent because there is no constituent assembly so it can never be modified 370 can never be modified can take recourse I mean the argument on the other side is this that you can we take record subclause 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 solicitor yes yes it’s a bit all and accessible yes because we have to deal with these issues so we we want to elicit a response yes
Uh 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 and the 371 d then are you not really doing that to amend 370 itself because the only provision with the Constitution creates to amend 370 is 370 clause 3. what you are now doing is according to
Them is that you are using the amendment of 367 applying the provisions of 371 d to bring about an amendment to 370 itself where is the purpose of 371d is to amend some other provision of the Constitution true 367 is another provision of the Constitution but can you use that to
Amend then C70 itself that’s the point which you have to answer look I can assure my learnings just one no no please no no I can assure him nobody can disturb me or derail me without my consent I am quite accustomed to the such interruptions I have a solicitor please don’t get derailed
Because this is the heart of the matter no no I know that I know that and he also knows but I’m quite accustomed I will put it slightly differently I’ll put it differently the interpretation which a lot of ships are not prima facie now testing it no we are testing the Prima facing
Testing it Lord what will be the impact of that interpretation I’ll read more of the entire article 317. meaning thereby a lot in absence of a constituent assembly which can never be modified the sub article 3 can never come into uh effect come into operation and 370 gets the status of a permanent
Provision no please read it in totality may not please read uh the entire article but not for my satisfaction please have a look at the entire article not withstanding anything in this constitution AAL or ships can skip the power of parliament to make laws for the sage State shall be limited to those
Matters in the union list and concurrent list your lawsuits have seen those the precedent here the provisions of article one end of this article shall apply in relation to that state the purpose is that Jammu and Kashmir can do nothing in their constitution or even Parliament can do nothing in their constitution
The the difficulty melod if your Lordships exercise will not accepted then even 368 route 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 do there are host of considerations for me to show that it has always been a temporary feature further such of the other provisions of this constitution shall apply in relation to that State subject to such exceptions and modifications as the president made by order specified a lot
Other Provisions would mean other than B they are just stopping you for a minute put the Legislative Assembly make a recommendation in terms of 371 be saying that under 367 you equate consumed assembly with legislative assembly under 37140 370 what’s up plus plus one subclass D could the Legislative Assembly make a recommendation
Saying if it is amendment it cannot if it just think about it and then answer but the Legislative Assembly have make a recommendation to the parliament please the main article 367 and let me give it a thought and respond to that that I I understand the heart of the
Matter a lot ships Lord discussion method is driving that any 370 367 use which has the impact of altering 370 itself we would be setting it not all a 367 usage but kindly remember through the 367 mechanism 370 has been modified that’s the point in what in favor of
What you are saying with the caveat that the use of the 367 mechanism to modify 370 was always with the consent sorry you can say that here also it is concurrence the only difference yes this is very one that is constitutely the significant difference look this is also with concurrence the
Only difference is the concurrence of the governor because Governor steps into the issues of the government correct can be subsequent recommendation has to be recommendation is of the body constituent assembly as it stood and subsequently if we are right legislative assembly concurrence of the government please similar and government the only
Dispute was that government cannot mean governor concurrence of the government means that’s the Council of Minister Council of ministers if it is there otherwise powers are exercised by the governor and that’s why I’m a lot I pointed out that there are several exercise of 371 d when there was a president’s rule with
Concurrence of the governor at least your provided yes queries but not absolutely dot on the point let me give it a thought but the real question would be you have already responded well the real question is that uh your concurrence is that of the governor government whichever is the government
If it is uh Ministry then cabinet hidden advice otherwise the governor and during Governor’s rule 371 D is used to change 367 also to not change change is the 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 a time when there was no legislative assembly the explanation was amended so as to increase so as to provide that the constituent assembly shall itself be treated as the Legislative Assembly because it was so treated because 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 otherwise we would kindly see suppose the government took the decision the government took the decision suppose
The second answer could be and that’s for the other side to answer by amending 367. in fact you’re not the really amending 370 as such because the 370 procedure has to be still applied to abrogate or nullify 370 the procedure has to be said applied suppose
367 had been amended in terms of 371 1 D 370 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 but that’s uh so that’s beside the point but it could have been that if this route is permissible or not I am putting a question to myself suppose I thought I answered it in the office yeah absolutely right that’s my
Answer that’s my answer I’m grateful to your lord for that that thought didn’t occur to me but not suppose we took the decision that in view of the Proviso becoming otters because there is no constituent assembly that limitation of recommendation ultimately its recommendation suppose it recommends that don’t abrogate president is not
Bound by it so now the constituent assembly having chosen while being dissolved not to recommend the constituent assembly has left it to the absolute discretion of the president it could have been done but not possibly it could have been defendable action but with a view to ensure that there is
Democratization of the action and Memorial Lordships are dealing with the state of this is a provision which is one of its kind there is no such provision either in our constitution or in any Constitution so the law which your losses would ultimately lay down is not going to touch upon any other provision
If suppose the common or constituent assembly while it was being dissolved if it framed the Constitution it had options a don’t abolish I am recommending that President should not exercise powers under subarticle 3 it should not abrogate 370 that was the first option second option he should abrogate article 370. after five years
Till then let the Constitution continue third the president is recognized we recommend that President should modify some of the provisions which we recommend and continue 370 as it is forever having done nothing of this not the constituent assembly goes without making any recommendation and therefore leaving it to the absolute
Discretion of the president the solicitor you said that recommendation it’s a recommendation it’s not you you see the words you used in the Proviso provided that the recommendation of the custody 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 there 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 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 otios it becomes not possible of being implemented and law doesn’t require performance of an impossibility but considering the nature of the Strategic importance of the state it was felt necessary then let this be debated in both the houses of Parliament
House of people it has its own Federal structure every state has a representation in a different indirect election form and both houses passes mother with two third majority not even uh constituent assembly could have recommended that word temporary be deleted even Clause 3 be deleted why not there was no embargo
During the subsistence during their existence and while being dissolved or during that period they could have said that delete temporary provision delete article three now we don’t want anybody’s power to abrogate they 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 but Section 3 of The Constitution says no
We are an integral part of English they never said that President’s power and the three we recommend being either diluted or taken away they never wanted Clause 3 to die that’s very clear all right so we’ve covered now the first point the interpretation of 370. 370 there are some points but a different
Lots of permit so on 370 uh Mr solister why don’t you summarize in three or four propositions what’s the heart of your submission and I’m going to 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 your lot ships time also in manot you have it here if I can be permitted I’ll just quickly go through five minutes and we can we are done with
It yes yes if my you get it says my Lord it declares it to be temporary via Lord says may not read anything the Lord it can it is contained in part 21 which has three categories temporary special provisions and transitory Provisions so constitutional framers are aware of what word they are using
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 president and the state government can alter any part of the Constitution and apply it to
One part can delete any constitutional provision can create a new provision and therefore not the submission is considering the very expanse of this provision the legislative the constituent framers would never happen not contemplated this to remain forever such a position can never remain forever wherever Constitution remains a floating
Document perennially for one state then three impact of article 370 was to deprive the residence of Jammu Kashmir and ladakh from being treated at par with their fellow citizens well therefore my Lord I am saying that this also is one suggestive indication that framers never intended it to be
Permanent then look this is the entire provision because this is very important this is the entire provision in the Constitution where application of not only Constitution please see this melod the seriousness of this application of constitution of India an application of central laws including beneficial legislations is dependent upon concurrence of the state
The only provision it says it would not apply it will not apply such a drastic provision could never have been intended to remain perennially permanently then this is the only provision which has an inbuilt self extinguishing provision article sabbatical three no other Constitution provision has this self-destructing clause
This again Malad is a pointer that it was intended to be temporary then it is goal of equivalence but what I have already said a lot in the Judgment which I read provision cannot be read so as to treat one part of State differently their citizens differently they envelop your Lordships would not
Give interpretation to a temporary constitutional provision having such drastic consequences because your Lordships are not going to be confronted with a similar situation in future there is no other provision in the Constitution and to our knowledge any other part of the world where are 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 operating 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 am on 10 point number 10 but I
Would request if your Lordships can read with women 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 of federating unit it is of strategic significance what I have pointed out article 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 your Lordships have seen that much they
May not be once the Jammu and Kashmir constituent assembly cease to exist the Proviso to article 370 sub-article 3 itself is used to exist and the precedent becomes the sole repository of power under article 370 sub article 3 which is coupled with his duty to exercise in the interest of residents of
Jammu and Kashmir without any recommendation it is for this reason that power is conferred upon the highest political executive who is responsible to the parliament who in turn is responsible to We the People of India it is thus clear that Parliament while framing the Proviso merely gave an
Option to the constituent assembly to make recommendation you know till its life but 15 is important this is how the petitioners want your Lordships to read not to withstanding anything in the foregoing provisions of this article on the recommendation of the constituent assembly of the state referred to in
Clause B the president May by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications the very purpose that the concept of recommendation is provided in the Proviso blood leads to an inevitable conclusion that they wanted it to leave it an option
To the constituent assembly during its life to make some recommendation otherwise that Proviso course will not go in the substantial yes my lords are right I’m obligible if the Proviso become otos the main provision does not become what use then the conditionality attached goes if this interpretation to article 373 is
Not accepted and the president’s power is under article 373 is taken away merely because the constituent assembly has ceased to exist without many making any recommendation it would create a devastating situation which could never have been envisaged by the framers of the Constitution nor ever been convinced they are conceived if the president
Cannot exercise the powers under Clause 3 it would mean that existence and exercise of power of the president of India provided for in the constitution is dependent upon some decision or lack of it by a different body but can we read a constitution that precedence decision is dependent upon some outside body
Takes a decision or does not take the decision if it takes it’s an option if it doesn’t take you lost your option the president of India cannot be denuded of its power by either they giving recommendation or at least not in absence of recommendation such an interpretation would never be
Given as such contingency could never have been Lord conceived then 17 secondly if we are absence of constituent assembly mentioned in the Proviso to Clause 3 is treated to be rendering the power of President of Indian India nugatory redundant and unexerciseable it would mean that by using any provision and article 371b and
1D any provision of the Constitution can be amended and applied to the state of Jammu and Kashmir and even the provisions which are part of basic structure please mark this one this is what fell from my Lord Justice called that you are putting it at the higher threshold than the basic structure basic
Structure cannot be altered by Constitutional Amendment but there is no such limitation in 1D they have chosen not to apply some of the fundamental rights meaning thereby a permanent power is wasted on two organs of the state to alter even the basic structure so far as its application to the state
Of Jammu and Kashmir is concerned and this is very very serious foreign 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 recommendatory and Malad president could have taken any
Other decision that may not be correct actually because so long as the constituent assembly it was not 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 I bow down but my my submission Fusion is governance my limitation and limitations and the use of the words recommendation shall be necessary is a clear indication that it’s not merely recommended tree but that there
Has to be a recommended recommendations read it a slight differently the way my Lord I read it what is mandatory the word shell that you take recommendation the recommendation is not binding otherwise the Constitution would have said that it would enact accordingly what is mandatory is taking the recommendation
That’s another way of Melody the other part of the argument we understand that the pro after the Constitution assembly have 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 under article 370 sabatically once the constituent assembly series is to exist just number that I pointed it out or modifying the 370 subarticle 3 by replacing the successor body we went for the second which according to me was not necessary it could have been done without any recommendation also
The power of the precedent and the subarticle 3 is unfettered as article 370 starts with a non-obstantial clause notwithstanding 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 this was something that
Might not 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-opstanding laws that nothing in this constitution this is how the 370 would function 370 sub article 3 starts with a non-abstantial loss not withstanding
Anything in the foregoing paragraphs meaning thereby even 370 can be subjected to 370 sub article 3. you kindly you know read it once again am I am and I do not know obviously because 373 has 370 Clause 3 has a non-abstanding clause which overrides everything else in this cons in this
Other 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 your lot ships very Illuminating there can’t be any doubt about it because when 370 Clause 3 says notwithstanding anything in this article that would include Clause one there’s no doubt meaning thereby meaning thereby modification in 370 itself was permissible
Through 367 and when you override Clause 1 the plane intent therefore is that the constitution itself becomes applicable then okay 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 am at the outset I’m not saying that it is subordinate to the constituent assembly for the for the union I mean you can you can’t Elevate
That constituent Hashem I must clarify one thing as an officer of the Court but I am conscious of the principle laid down in keshwar and bharti that there is a distinction between constituent assembly and Parliament or constituent assembly and legislature they are not interchangeable that’s why I’m not this uh submission
That here constituent assembly for all intent and purpose was a legislative assembly not preparing a document of governance pull out the position as far as the state of Jammu and Kashmir is concerned even prior to coming into force of Article 1 was who created constituent assembly the Maharaja who signed instrument of
Accession and surrendered his sovereignty then he issued that Proclamation your Lordships are not remembering that now whatever Constitution his frame would be binding so he could never have created a constituent assembly which would have a role independent of larger than or completely different from the constituent assembly of which he became
An integral part and at that time are not the Jammu and Kashmir was an integral part of India so the body which was created was known as constituent assembly but was a subordinate creature then will not constituent assembly and the constitution of Jammu and Kashmir can never be put at the same pedestrian
As the constitution of India because the very birth of the constituent assembly of Jammu and Kashmir was because of article 37. according to you the role of the constituent assembly of Jammu and Kashmir is the role which is created for it by our constitution by the Constitution of India hoping beyond that
It cannot be beyond that above that or Superior to that it is subservient and subordinary it never had original constituent Powers but please see 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 the 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 Constitution the Preamble of Jammu and Kashmir Constitution it says with a view to further Define our relationship with Union of India it doesn’t say that we are creating a constitution of our governance that’s the only purpose they say we the people of Jammu and
Kashmir with a view to I’ll just read foreign it is kindly note the page Volume 2 page even Preamble doesn’t say that it has attributes of a constitution per se 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 with respect to which Parliament has the power to make laws then that is denuded from the jurisdiction of the Jammu and Kashmir legislative assembly now we have seen how progressively the Ambit of the legislative domain of parliament was
Expanded expand for instance initially the entire concurrent list was outside the the power of parliament correct we had only certain entries in list one the union listings 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 so therefore it’s very obvious from section 5 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. in fact it contemplates that what the constitution of India will prescribe for
Parliament will be outside the domain of the of of our domain so in that sense it is always intended to be subservient to the constitution of India document which is equivalent equivalent effect and that’s what the 147 makes these provisions unremendable Section 1 for texting 147 3 and 5
Cannot be amended otherwise what happens Lord this is amendable this constitution if it would have survived was amendable by the Legislative lesson so they can amend the Preamble and academically potentially can become a Theocratic State because secularism was not applicable all right Mr solicitor I think we’ve gone through your article
E370 note now what uh your constituent assembly note now whatsoever now without my uh now you have to deal with the important part about States reorganization and the conversion of yes the state into a UT how do you answer that all right I’ll take a little time
On this one not unrealistic time but there are three four judgments which are direct judgments would bear in mind the difference between our Constitution and say constitution of America where there is a contract between the state and the federal government and that is how they form the United States
Does federal government doesn’t have the power to even alter the boundaries of the states because it’s a it’s a it’s different and distinct uh there’s no contract between the states and the federal government in the U.S the internet 13 colonies came together in turn they form a union
And they surrendered some powers to the Union to the union otherwise retaining one of some of the states have Supreme its own Supreme Court Etc but whenever my Lord a nation like us and the federalism which we have accepted which is kind of kind of uh leaning towards unitary uh feature I’m not
Arguing on that unitary versus federalism at times the nation requires to regen the boundaries and the status of their states but there are several considerations and therefore at the outset Melody I may point out that this is a case one of its type which is not to be encountered by
The court for example if Gujarat was to be Viber bifurcated or madhya Pradesh was to be bifurcated the parameters would be different but when Jammu and Kashmir considering it’s very strategic importance border state history of terrorism history of blood infiltrations history of outside influence outside means outside the country
Etc etc but there would be several considerations in the mind of the girl we share border with four at least countries all of which may not be friendly but not to put it mildly argument based on border states is a problem we have many states on the border no history also the history
Country but I have given the details in my affidavit filed long back how about the situation in Kashmir is developing the number of deaths of civilians the number of deaths of security forces the number of attacks the number of stone pelting the number of plot every week
Two or three days of herthal paralyzing schools hospitals Banks business houses everything but all these are policy considerations whenever a state reorganization take 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 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 do you concede that power to the Union in respect of every Indian state you’re not saying that you should concede that no this only X is exists for J and K it exists for every index
But the power is for all once you once you concede that power to him to the Union in relation to every Indian state how do you ensure that you know the kind of abuse that they apprehended we are now not defining it for today but you
Know that might be the Lord but I hate the revised by some larger bench at some point of time but how do you ensure then that this power will not be that was my worry I share your lordship’s worry and therefore my Lord I started by saying that your Lordships
Are dealing with a one of its kind situation which is not going to arise the Lord and if not I I point out after one of its kind situation we have seen the on the northern border 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 Border you can’t choose our neighbors as they often say we have had problems correct so the worry which is Justice expresses is that tomorrow if there is a scenario in order
Can each of these states face this problem and and why each of these states only Melody it can happen for example is what what you’re 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 any other border states not in any none of the border states take Northeastern states or Punjab as well or six give an example Northeastern states or Punjab or any other Rajasthan has a border Gujarat has
A border what possibly is being pointed out you can’t say because it’s a border state so it has to be treated I’m not saying it that’s not the distinction I’m drawing because then it’s a very important there are several border states Gujarat Rajasthan uttarakhand uttara can’t imagine I’m not followed
Kindly don’t misunderstand my submission that because it is a border state it requires different treatment do not kindly see the consistent repeated situation which we are facing since decades on a daily basis is not happening in Gujarat or north east or any other border state
Here is a border state where one of our territory is occupied by Pakistan 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 which we are similar trying to
Not sort out or deal with and I’ll show my Lord this is not but not just these decisions are never taken as knee-jerk reactions there is always but not policy considerations who border state this country if this particular uh State being a different kind of a border state is one but there
Are several considerations and one of the consideration would be how to bring the youth in the mainstream and I’ll point out everything was kept in mind and is implemented and what we are seeing today is the result of that blueprint being implemented but after this decision there were elections which took place of
District development councils there are 34 000 elected people democracy going to the Grassroots there are large number of schemes which are introduced Lord the youth which used to be employed by the interest not immunical to India maybe Terror groups of whoever and were paid now are gainfully employed
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 downgradation I will I and there are some other factually incorrect statements were made below by one of the council members who argued for reorganization against the reorganization that we lost this there is no representation there is no
Consolidated fund of India we can’t participate in the election of President our seats in the parliament look at it at the first level basic level of textual level of the Constitution let’s go step by step then we’ll go to the last part namely which was what motivated this decision
And there you have said that these are policy considerations look at the nature of the state the history you can’t lose sight of all that we must also deal with it at a textual level thus a does Parliament have the power to convert an existing Indian State into
Union territory it is if it does have that power how do you read article three if you can give a sister so that’s the before the actual question yes there are a lot specific judicial pronouncements no but we will go to the judicial pronouncements first look at the well
Look at that the statue may I request your Lordships to have a just bird’s eye view of the reorganization act itself no one has shown that my Lord to your Lordships I want your Lordships to see that you look at the organ reorganization act that we provide us
I’m not reading I’m not reading every part I’m just taking a lot shift through the titles articles Mr also I would like to know whether it’s some kind of a what is the nature of exercise of that power is it a permanent exercise or power in a temporary exercise of power what is
No it is let me let me answer that straight look this question was put in the parliament when the reorganization bill was passed I’ll just read Malad the statement of the honorable Minister on the floor of the house so the union territory here is not intended to be a permanent
And that’s what I’m not I’m making question number two question number two oh impermanent is it is it I understand so that is why but I was going to show to your Lordships the steps taken to ensure that we reach that stage I will show those steps all right now let’s go
To article three articles article 3 formation of new States and alteration of areas boundaries or names of existing States Lord first my Lord before that please read my note explanation one so that your Lordships can read uh in in that context in this article in Clause a to E
State includes a union territory but in the Proviso state does not include a union territory correct so wherever you read state reunitive union territory except the program so now let’s read uh Clause a in the light of that yes this very reorganization has been subjected envelope this honorable
Quota said that it is permissible this reorganization has passed the master of your Lordships under three and four the Judgment I will show you Parliament May by law form a new state by separation of territory from any state or by uniting two or more States or parts of states or
By uniting any territory to a part of any state so I would read parnament meet by law form a new Union territory by separation of territory from any state or by uniting two or more States we are not concerned or parts of the state again we are not concerned so there is a
Power of having two union territories out of one state then B increase the area of any state diminish the area of any state alter the boundaries of any state but here this would also result the Clause a 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 but not which prohibits Clause a clause a contemplative situation where an entirety of a state can become say more than one Union territory what you’ve done it claim a lot I am not answering
That question because that doesn’t arise here yes in a given case but I don’t want to pitch that high Clause a the problem form a new Union territory will not read it as state form a new Union territory singular will include a plural so form more than one urinary territory no problem
Form a new Union territory by doing what by separation of territory from any state territory means geographical area right so from the state of J and K you carve out the territory and form see a union territory of Jammu Kashmir and ladakh but I don’t want to preach that high but
Otherwise it would not prohibit even a state being made unique Union territory but that’s not the question we are dealing with also so the first part of clause a in other words according to you form a new Union territory by separation of territory from any stage and contemplate a situation where
You have a larger State and you contemplate the equation of a union territory by separating out a territory in this case you separated out a territory to form the union territory of ladakh and then the remaining you carved out and said this will be the union territory of
It is not amount to reading suppose you had not carved out like that anyway declared the whole thing as a UT but there is no restriction in doing that I don’t wish to pitch it that I’m going to trust and understand suppose suppose you create a one duty 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 of part of the state over uniting any of the territories how will it apply suppose you are not crowded out with that but
Possibly a possible so then the power would be weak the conversion of any state into UT by separation of territory from any state so separation is necessary so if you don’t separate and create you really how do you contemplate converting a state into UT and if I’m just saying for the sake of
Arguments if that is not possible can you do that by carving of the UT and making the other also empty but there is no restrictions and this is how mother 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 duty there is no restriction yes I would say less complicated in this nation so therefore to test the preposition I am saying suppose you don’t care about it you decide that the whole state should be eating
So can you do that and say JMK state will remain as it is the boundary but from State and become the 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 UT just fine but in the bargain also say that what I could not do without carving out a UT I
Can do it now by making both of them because I had a separate reason to carve out ladakh has a separate utility carving after here it’s less complicated reducing using parts of the carved out and the pre-carved out so suppose Assam you carved out to UT
To say no we carve out a portion of the Assam as UT and also convert Assam into UT that’s the testing proposition 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 not
That doesn’t take place if one state is declared UT so one state cannot be declared Ness 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
A proper the theme with which you began which is the general situation in Jammu and Kashmir as we see you know the creation of union territories post Independence you have on the one hand examples like Chandigarh which was carved out during the Punjab reorganization I can 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 or it’s that’s the Northeast but instead
Of mizoram you have Manipur you have tripura they became they were part of states they become union territories but that’s in the process of making them into a stable Administration to become 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 at a future point of time when Parliament feels that well they now are sufficiently stable institutionally we will make them a space which we did in the Northeast
To put something perhaps you may look at what we are trying to suggest why is it not possible for the union to say that well right now say in a case of a particular state we have such an extreme situation in terms of National Security in terms of
You know other uh you want Direct Control that we want for a certain stipulated period that a union territory should be created but this creation of a union territory is not a feature of permanence but this shall then again progress back to its position of a state removing the
Reasons why it was required to become the union not have a a control for a certain stipulated period to bring stability because ultimately let’s face it whether it’s a state whether it’s a union territory all of us have survived the nation survives yes the nation itself doesn’t survive there’s
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 in a given case it may be six months in a given case it may be one year but that
Progression I think the government has to also make a statement before us I had looked that progression back to a state has to take place that’s exactly I’ll read but not after the lunch that’s exactly the statement made on the floor of the house I’ll read
One of their statement that this is not a permanent feature after the situation returns to normalcy we want it to become a state again I’ll read Melody 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 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 returning May seek instructions at the highest level is
There some is there some time frame and view but I’ll show the statement made on the floor and the efforts made and the statement is once the efforts are fruitful and everything is normal then my Lord there is a but I’ll probably uh Mr solicitor and Mr attorney
Restoration of democracy is a very important absolutely that’s good foreign for the first time in the history the local government elections took place 34 000 people are now elected people which is Possible only because of therefore the progression will be take your point we take your point progression has already begun yes
No stone pelting no curfew at least situation is National integrity is there a road map yes yes it is foreign before the lunch break but I’ve taken instructions but the instructions are that UT is not a permanent feature but I’ll make a positive statement well tomorrow that is day after
Because I’ll have to meet mother before Christmas yes that’s what we have understood but we’ll meet a person meme and we will make a statement but I must tell you a lot so far as I’ve 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 no reason lose word I am using that is Target Lord election to ladakh autonomous Hill Development Council is held in October 2020 for 2016 seats and for kargil it is going to be held on 10th of September 23.
So ladakh election would be over I name a lot your Lordships need not open my Lord it is volume 10 document compilation volume page 763 compilation volume volume 10 page 763 that I am reading four lines from Lok Sabha and four lines from rajya Sabha because
Something said on the floor of the house has its own sanctity foreign 763 volume 10. because the honorable home minister introduced the bill and it was debated it was debated for both the leads 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 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 y12 is this question arose not somewhere Tenth Line from the top it starts with but I’m on page
162. I’m sorry page five one two okay I looked after that after the English words constitutional position the same same line constitutional positions etc etc is what’s the date of this 5th of August 2019. when the organization bill was being considered may I quickly melodically through the judgments on article 3 4
Whichever way melodious would like me to go but I I’ll read but not only cite few judgments all right let’s reorganization and three fifties not 162 Colonial options have great compilation my written submissions volume 3 combined with conservation my lords have seen article 3 and Article 4 the respectful submission
Right and this will not be during discussion with Mr vivedi my Lord we came to know that the distinction is this is the only state where it was not at par with the rest of the country and now it is becoming the party that is not the distinguishing feature which
Would never arise in case of any other state now look this uh YouTuber came up for consideration of this honorable God at page 162 the Judgment I closed the compilation volume so I’ll have to research your find out the volume I’m sorry volume three days 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 pagelets yes yes right I’ll read the judgments
In case of Jammu Kashmir the present reorganization article 3 provides that Parliament made by law form new States and alter the areas 89 I am sorry yes article 3 provides that Parliament May by law form new States and alter the area’s boundaries or names of the existing Siege the explanation one
Provides that in Clause is a to e an article of article 3 a state includes Union territory thus explanation one makes it empty clear that the power of Parliament and the Clause a of article 3 to make a law to form a new state or to
Alter a boundary of a state includes a power to make a law to form a new Union territory explanation to clarifies that power conferred by Clause a on Parliament to enact the law to fame a new state includes a power to form Union territory by uniting parts of any state
Or Union territory to any other state or Union territory do not kindly come to para 26 below that page 163 on conjoint reading of article 3 4 and 239a we find that Parliament by making a law can convert an existing state into one or more union territories B
Parliament is empowered by law to create a body of legislature for the union territories of puducherry and Jammu and Kashmir accordingly subsection 2 of section 14 of Jammu and Kashmir reorganization act provides that there shall be a legislative assembly for Union territory of Jammu and Kashmir and
See even if law made by Parliament creating a body of legislature for union territories of pondicherry and puducherry and jnk has the effect of amending certain parts of the Constitution it shall not be deemed to be an Amendment of the Constitution for the purpose but a different Lordships is
Holistically article 3 and Article 4 and I am saying this academically I am not preaching it meloda for this particular case but there is nothing if we read as a common a scheme of mother reorganization that one state for a good reason the threshold of your lots of 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 to Jammu and kashmiration 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 they provides over now what ex the article three your Lordships have applied Melody when this reorganization took place but 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 Lord this is perubury is considered your Lordships 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 him please come to para 91 at page 164. only about the relevant Parts 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 perubury 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 Lord 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. good I’ll just get the Lord she’s gonna give me a minute
The amendment is 27th August 68. 27 dollars 66. 27th August 66. and just give us by which my Lord this explanations came to be added right that state includes UT would like to see where it is uh PDF volume well I’m sorry volume six case compilation volume six for what is
The date just give us the date 11th August 1965. all this is kindly directly go to Lord your Lordships have seen page 167 the view of Justice Khanna Lord uh justice Delhi 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. 169 citation 371. look this is a judgment by six honorable judges pension the legal sorry legal sovereignty of Indian nations the judgment is not state of West Bengal
Versus Union of India yes legal sovereignty of the Indian nation is 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 steel there is no constitutional guarantee against alteration of boundaries of the state by Article 2 of The Constitution the parliament May admit into the union or establish new States on such terms and conditions as if things fit and by article 3 the parliament is by law
Authorized to form a new state by redistribution of territory of a state or by uniting two or more States or parts of states or by uniting any territory to a part of the state increase the area of any state diminished Etc but then four lines from thereafter Parliament the word starts with Parliament
Parliament is therefore by law invested with alter authorities to alter the boundaries of any state and to diminish its area so as even to destroy a state with all its power and authority that being the extent of the power of parliament it would be difficult to hold that the parliament which is competent
To destroy a state is on account of some assumption as to Absolute sovereignty of the states incompetent effectively to acquire by legislation designed for the purpose of property owned by the state for government purposes then next is malnut again is five judgments this is different but not uh that nineteen one a judgment
That is also babulal parate him along 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 Lord it was some additional areas where also therefore that was under challenge
We proceed now to consider these contentions it is necessary to State at the outset that our task is to determine on a proper construction the true scope and effect of article 3 of The Constitution with particular reference to Second condition laid down by the Proviso they do we bring it to our task
Such consideration as our German to the interpretation of an organic instrument like the Constitution but it will be improper to import into the question of construction doctrine of democratic theory and practice obtaining in other countries unrelated to The Tenors even words of the provision which we have to
Construct but kindly come to the later partner article one of our constitution was somewhere in the 10th Line from bottom of 170 does your lots of getting 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 formed 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 all altering its boundaries the legislature or legislatures of the states concern having only the right to an expression of views on the proposals it is
Significant that for making such territorial adjustment is it not necessary even to invoke the provisions governing Constitutional Amendments only one line I’ll now coming down to one line kindly without appreciate it says India is an indestructible Union of destructible units engine law of a lot I am pointing out I am not
Preaching that argument that I will not we have what we have done is as a temporary measure as it is clear from day one and the Parliamentary debate that we have created two units namely two union territories and one Union territory is which legislature the power wasted with the power of
Police with the center because of the very peculiar nature of the situation arising since decades rest everything they have what state has pointed out two instances where it has happened first was Punjab that was a very peculiar problem Punjabi sugar movement Etc more or less everybody was agreeable probably could not master
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 and master Pradesh itself coming becoming a state
And then probably coaching and traveling core is another example which is given the third is this this is the way uh because once you suspend the Proviso and virtually the power of the state governments are taken away the representation of the state is represented by the will of the people of
A larger country can lead to that is that is touched upon in Lord please come to page 173 even this question was not considered in Bombay judgment we read my judgment for a different uh 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 Sr bromide para108 .108 is called page 173 I have quoted Sr bomai but last four lines on that Pera but I’m trying to rush murder so that I can finish
The lordship gets on a conjoint reading minutes on a conjoined reading of these articles it becomes clear that Parliament has the right to form new States alter existing States or the name any existing seek 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 two 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 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 it is in substance in my respectful submission said that it’s a provision which is strict compliance is not existed upon provided there is a broader
Compliance namely the entire nation considering that this affects the nation as a whole this situation doesn’t affect the state or or neighboring states only this affects the entire nation and therefore including representatives of Jammu and Kashmir Parliament and rajya Sabha I mean Lok Sabha and rajya Sabha have representatives of Jammu and Kashmir
So these are my judgments on three and four would your loveships like to have a bird’s eye view of the ACT 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 mother page one one two three volume three document volume three by notes 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
Seats are left reduced but Mr nafade said the seats are reduced it was sixth in total now it is five Jammu and Kashmir and one ladakh Denman 12. every sitting member of the House of people representing a constituency which on the appointed Day by virtue of the provisions of section 10 stands allotted
With or without alteration of boundaries to the successor Union Union territory of Jammu and Kashmir or Union territory of ladakh as the case may be shall be deemed to have been elected to the house of people by that constituency as so allotted so they continue as Lord Lok Sabha members then 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 my Lord this is amending after look 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’ll give copies to the other side also because this has all the X which are made applicable which were not applicable Central X including beneficial legislations and amend suitable amendments in the local X
Local X are retained if they are not repugnant to the Central Lakes with suitable modifications making them Constitution compliant well this is amended there are 30 section 13 because the argument was that now we can’t vote mlas of Jammu and Kashmir cannot vote not at page 10 foot of the page section
13 my Lord Justice page 10 right side a left side top is the pagination section 13 on and from the appointed 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 then 14 minutes section 14 there shall be an administrator appointed under article
239 a of the Constitution uh from the U for the union territory of Jammu and Kashmir and shall be designated as lieutenant governor for the total number of seats in the Legislative Assembly would be 107 then but every entry except police is not now for obvious reasons but I
Need not even explain why police is directly under the control of the center and plus six minutes this comes for the first thing fourteen six this was never there seeds shall be reserved for schedule caste and scheduled drives in the legislative assembly of the Union territory of Jammu and Kashmir
This has come for the first levels then come to my Lord section 16. Lord earlier only permanent residents could contest elections under Section 16. I am not inviting a lawship’s attention to read it now you should be a citizen of India he need not be a permanent resident for being qualified
To be elected 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 not subject to my answering your Lordships about the election on the day after when you know in the morning but you know
Compilation or no the ACT page 119 section 32. volume 3 document volume three numbers fellowships have 32. subject to the provisions of this act the Legislative Assembly may make laws for the whole or any part of the Union territory of Jammu and Kashmir with respect to any of the
Matters enumerated in state list except the subjects mentioned at entry one and two namely public order and police respectively or the concurrent list in the seven schedule to the constitution in so far as any such matter is applicable in relation to union territories 35 inconsistency between the laws military is a provision special
Provision has to finance follows the Delhi the Delhi models of course one and land one two and eighteen is carved out land is given to the uh State legislation land is not given which Provisions is land taken away not here not here here only police and
Public order right not in Delhi oh I thought you were saying land is also taken away one two and eighteen we have trouble your lot for a long period on that I wanted to avoid that but uh it is it’s argued so many times that it was like
One two and eighteen star is stuck like a mantra in the brain you know the very object and purpose of reorganization is this well thereafter there are Financial bills provision one more change Parliament has competence on all the three lists that is because of 239 double A 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 okay but you are saying the same principle is followed here I don’t think Parliament by the Constitution to make yes yes yes speak to any matter for the United States 239 double A provision is Incorporated in the statute your Lordships are right no 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 mother I wish this was pointed out to a lordship 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
Almost like trivia right now but Clause 2 says nothing in subsection one 32 shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the union territory of Jammu and Kashmir or any part thereof so this provision does not Empower Parliament to
Make a law on the state list like 239 double A the provision comes in 246 4. 246 4 says Parliament is power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter as a matter illuminated in the states
That’s why no just as a matter of uh constitutional position Parliament can enact a law on all the three lists for Jammu even even in absence of subsection to it could have that’s a constitutional position so I’m not reading but not Mr C you sing 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 submission fellow I have already crossed my time a lot but 142 just followed I am placing it for a lot since consideration not the government’s rule Governor’s rule is in challenge as I have pointed out after 14 months
142 minutes but my written submissions for 142 volume 3 142. the Lordships have a Charged methods yes but what I’ve done is I have mentioned the number of the petition with the name prayer prayed for and the grounds for challenging this Proclamation these are the only petitions and these
Are the only grounds in those petitions the Lordships are aware wondered how a constitutional Act of imposition of Governor’s rule or precedence rule is to be challenged and what should be the everments what was the material sufficiency this that another nothing because it was done after 14 months only as a corollary of
Challenging Fifth and 6th of August action I’m not reading a lot of the uh pleadings but there are no pleadings that’s all I am Lord 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 solver 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 bleedings now please come to another 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 Celeste when we were judges of The Bombay High Court we had a colleague who had come from Gujarat and transfer a God’s good person so here this specialization we would meet outside the Chief Justice chamber every morning
Uh just a little bit of comedy and then we go to car so every day our colleague who had come from Gujarat would tell us how many more days we had to go back to the vacation yeah can come out of Gujarat Gujarat never comes out of him we always
146 last part only underlying portion 147 but this mother kindly read blood the canvas of the Court’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 is attention melod missed this last partner therefore I am for completion this is the law Lord kindly come to the next Judgment at page 148 state of Rajasthan versus Union of India Lord Seven honorable judges but some the
Bold Department there is a part which is made bold the learning Council your lordship gets better 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 the 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 this 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 that means 146 all the way I will not give I’m not reading but I’ll give the majority also saying the same
Thing but wording wise I found this to be matching of matching my submissions more it would be clear from this discussion that when a proclamation is validly issued by the president under article 356 Clause 1 it has immediate force and effect the moment it is issued and where by proclamation the president has
Assumed to himself the powers of the government Governor under subclass a he is entitled to exercise those Powers as fully and effectively as the governor During the period of two months when the proclamation is in operation there is no limitation imposed by 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 enforced do whatever the
Governor could in exercise of such power and it would be immaterial whether the consequence of the exercise of such power is final and irrevocable or not to hold otherwise would be to refuse to give to give full effect to the proclamation which as pointed at a book
Continues to operate with full force and bigger During the period of two months it would be rewriting article 356 and making approval of both houses of Parliament a 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 Entei 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 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 repetitions that during the period of two months before approval of the
Proclamation by the two houses of Parliament no irreversible action such as dissolution of the Assembly of the state can be taken the power to dissolve the legislative assembly of the state cannot also be denied to the president on the ground that the proclamation may not be approved by one or other house in
The first place the existence of a constitutional power or the validity of its exercise cannot be determined by reference to a possible contingency the court cannot enter into the realm of conjecture and surmises and speculate as to what would be the position at the expiration of two months whether the
Proclamation will be approved by both houses of Parliament or not secondly it is entirely immaterial whether or not the proclamation is approved by both houses of Parliament because even if it is not so approved it would continue to be in force and effect for a full period
Of two months look this is diluted in bomai Sr Bowman please come to page 150 next page Justice 7th and Justice School deep things 153 summary of conclusions on this point it is conclusion number four Roman 4 Roman since the provisions contained in Clause 3 of article when am I with theological
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 motherboard this is the only dilution and this is the only limitation till at least both the houses of Parliament have approved of the proclamation and this is definitely the majority so Lord here when the Imp the actions which are impuned were taken they pass
The muster Thrice the proclamation past the master Thrice uh then Justice pandian I find myself in agreement with the opinion of Justice 7 on his conclusion one two and four to eight with which Justice BP jeevan really concurs in his judgment so this becomes one of the majority View and
Last but not Justice given ready and Justice Agarwal in light of the reasons given in conclusions recorded here in 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 150. when an elected government is not in office the orders of the governor under article 356 1A as an agent of the president of India are equivalent to the orders that might have been passed by an elected government in office and the
Governor’s orders had to be given effect fully and could not be ignored either by the executive or by upsc 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 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 you’ll also 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 Dorman thus where the government of a state is
Dismissed or removed from office here resignation the legislature of the state becomes ipso facto unworkable it is for this reason that subclass b provides that powers of the legislature of the state shall be exercisable by or under the authority of Parliament the best Exposition method of sub article B
So Lord these are my respectful submissions but I am immensely grateful very patient hearing a lot and it’s always a learning experience thank you Lord I I’m not I wanted to read my Lord the concluding speech of uh Dr ambedkarma at the conclusion of the assembly constituent assembly but if time permits
At the end my Lord I’ll read for five seven minutes it’s a beautiful speech method at the end of the problem and not right now coming in the way of thank you 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 6 more than 61 years ago we had a if you watch this recollect I given my two sets of written submission maybe 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 Behavior addition to the arguments made before the lordship stages when I do that this is a volume four PDF for example page it’s a separate written submission on behalf of the Attorney General that’s volume four that’s right
And then I handed over a two-page note in the last occasion with the summary of my submissions your opening arguments yes yes which company 61 years ago we had puranlal wanting to whether yes oh my God but not a very good compliment for me the government is not worried you know
Because he noticed that the same position persisted for 30 minutes opportunity for me he was the only one very nice i i in continuation of my summary of your Lordships have been taken through the whole historical narrations I mean 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 momentous years before 1915. and they convey only a very telescope point of view and a large amount of literature which is available to others to say are these momentous process took shape
To a variety of efforts and engagements the ideas and conglomeration of thoughts but by and large but the history has been brought over in Lordships that but for the narration of History the understanding of not only article 370 but with the Constitutional integration process would have been incomplete
And that’s where the detail list of this narration with the London solicitor occupies an important space now they said uh six seven years ago and Paul wanted to contest an election how his dream has come true you had to wait for six one years for
All of us we’re all all of us are important in a way so this this is a this is a grand contribution to what one may say whether it’s very significant historical constitutional process that has taken place in the history of India now why do we have to look at the
Historical narrative with that because both sides would like to place a certain perspective on uh why is certain course of even the loan 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 so that there
Is no fundamental distinction at all is the political compulsions which happen in the context of JK made a very slight deviation and that deviation is again I would call a formalization of the principles and the procedures for integration article 370 is nothing but the outcome of the formalization of the principles
And the procedures for integration the country had gone through all that process Uranus States merger of small in territories and the idea of a concept assembly and framing a constitutional they don’t want all that forces have gone through but since there was there was little Intervention which is a political historical fact
Article 370 are to intervene and if you try to attribute to article 370 any other purpose or intent then I think we are fundamentally mistaken so we are asked to go back I would probably ask you not to go back to 1949 1950 and look at in the point of those
Who are engaged in braving article 370 and with the visualization as to what would happen soon thereafter to the integration project of article 370 instead of that we are sitting today almost 67 years later and trying to imagine into article 370 what contemporary contact you want us to imagine
I say that imagination to a large extensions forbidden so we have to look at it from the Texan context and the intent and content of Articles resolution let me quickly formulate my understanding of article 370 I don’t propose to read in extend so many of the judgments which have looked into article 370
Militant submissions foreign submissions and please turn before that to page 30 paragraph nine two zero the three dimensions of article 370. a million page a enabling Parliament to legislate in respect of matters in para one and two of subclasses we have Clause one of article 370s B application
Of the provisions of the Constitution of India subject to exceptions and modification in the class we have plasino article 370 and C termination of the role of article 370 underclass wave article 370. these are the three dimensions then the requirements of consultation concurrence and recommendation
As the case may be are the processes to be followed by the president and I think for the purpose of our understanding is honestly to go into the question of concurrence and consultation Etc in the distinctions but uh since you are debating on the Proviso to class three of article 370 and the
Recommendation Clause we need to place some attention to that I in my understanding philosophy kindly see the whole the exceptions modifications additions 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 come to the fifth
And the sixth renewal the legislation making power of the governor has been noticed by this court and more than one occasion and then Place only one reason judgment and later page paragraph 10 at page 30 is the Constitution by judgment on the powers of the governor under the fifth schedule
Paragraph 39 and Page 30 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. this is a 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 conference the governor is the words of Lord Hansberry and at Moses creation of enactment for the attainment of objects pointed to in that case the words we spelled for
Consideration judicial committee by the power of parliament of Canada to make Provisions for the administration these are in good governance for any territory not for the time being included in any province it uh contended that if any legislation deferred from the provisions in England have been made but the
Administration of peace art and good governance the same could not be sustained as valid that contention was not accepted then kindly turn over to the next page page uh 33 the sentence beginning applying the law the middle of the paragraph are playing law to an area is making a regulations which
Are laws so the the power to apply logic inherent when there is the power to repeal a government any act or any existing law applicable to the area in question the power to apply Lord really to bring into illegal effect sections of an act as if the same act had been
Enacted in the entirety application of laws is one of the recognized forms of legislation you’ll also find an article 370 the application principle is virtually distributed in article 370. I just press and say read that so the application principle of logarian recognized forms of legislation therefore I would probably say that
Article states of intake concurring power in the president is not in the nature of an executive part of the president they execute a head he has conferred a legislative power a 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 as conference the president not as an executive and therefore in order the president is enabled you know exciting that power we have only those processes to be followed concurrence and consultation so if the scheme was to have a provision to facilitate and Aid
The Constitutional integration processes we need all that we put in place the comfort and the aspirations also to be not to be compromised and therefore you have a 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 of J and K oh we
Understand it was not a solar quality yes we understand your argument to the extent that there were conflicting views expressed in the Constitution the same day which is quite you have pointed out or what was pointed out and what we have today is article 370 as it stands in the
Constitution so we have to interpret that and apply that yes because kindly now turned to page 36 but we try to understand if this is a constitutional integration process and the constituent assembly at jnk will play a role in the Constitutional integration process now how do you really make that happen
So that I said the two important elements of 370 namely extending the provisions of the Constitution on 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 J and K very essentially important steps of
Parliament in the meanwhile will legislate for the state of jnk and the extension of provision of the Constitution of equally important the two important limbs these are two important limbs in the hands of the president and a turbulence point will have to arrive at some point of time
I try to imagine that if article 370 did not have Clause 3 at all it’s impossible to think of a provision like this without a Terminus point because it is not to serve a perpetual Aid and advice position for the state of gain k through extending periodically
Or what happened over a period of time is what the president has done is by updating various Provisions the Constitution into by seeing various constitutional orders the updating exchange went until recently we all night the receiver of 54 1965 by which time the majority and important provisions of the Constitution were
Extended state of jnk 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 accident 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 could take an entire different shape so that was certainly not the intention so if a term in this point has to be has brought in and that power usage financially invested in the president now we article 370 begins we’ll say not a non-abstonte clause I understand not understanding 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 any role for article 368 so therefore when article 363 is not coming to the scheme of the Constitution the argument that during a president’s rule in 356th
You could not have probably taken Universal reversible irreversible without threading the path of article 368 in this conceit 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 another 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 Constitution we did not get into the question at all therefore if the integration Clause is contemplated came to Within by enactment of section three and if I have the Constitution now 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’m writing secular essentially updating order except those two controversial orders where article 35 AIG I ask myself a question either president precluded from taking stock off all that has been that has happened in article 371d
And say what shall I do with it today that today can come at any point of time there’s 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 voice facilitate and enables the person who takes talk in the world 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 we call to our surge his purpose and terminate it if that Authority or the president is untraveled the measures taken by the president to deal with looking for Aid and assistance measures in terminating it
Coupled with what the parliament ultimately did in dealing with a very vast question of bringing peace and restoration to state of JMK so we are trying to tell you that the seashability probably will not come in now let me try to understand why the jnk the concept assembly was given only a
Narrow power of recommendation well yes it was necessary to have the recommendation taken from the constituent assembly but the necessity does not enlarge to scope of the role given to the assembly which is a very narrow narrow role namely a recommendation rule one will probably be able to argue that if
The assembly having resolved itself probably would have expired on his own 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 a figurative metaphorical but what I mean say is this the president lose
The authority and power available in article 370 Clause 3 to bring to a close the entire scheme of article 370. I would say the president has not lost that power in the presidential poll case the reason of the fact that the Gujarat Assembly was resolved and presently played that citation
Gujarat 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 what is 140 reference said either mandate avoiding an erection within a period
Now becomes impossible without Electoral College 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 foreign Authority and article 373 can operate
Without any further assistance from any other authority the president could have said in art and article 371d which was precisely what has happened here he did not require any further assistance from any other authority but by abandoned caution in continuation of what happened earlier in the article 371b
We follow the president follow the same good Starts Now substituting legislative assembly in the place of the constituation so whatever Gap is suggested Gap may be perceived President says now I’ll fill that Gap there are several situations when such conditions precondition the performance cannot reconformed it is called a doctor of impossibility
So therefore the performance is not relaxed really but problems will still be done the conditions may be ignore so therefore if following an earlier president of article 370 1D invocation we had a substitution of legislative assembly in the place of consequent assembly the president follows suit
Who is also bear in mind when attorneys see when he referred to subclass D to article 371. to the government of the state now his fund has to take the concurrence of the government of the state he’d post 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 comments becomes a formality so 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 that’s right it’s not to the ministers governor with the council ministers let me try to look at your friends so if you’re going to read Clause 3 of article 370 in isolation without reference to Clause sub Clause D to article 371 and then argue that this absolute power
Given or absolute because there 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 article itself the perceptions about if conflicts Aries because we are dealing with a provision which was meant to work
During a certain period and during the period how it would 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 concert in assembly
Had recommended to the president to dissolve to to delete article 370. partially or fully person 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 present takes talk on that
So that giving meaning and context in relevance will flow from what has happened over a period of time and what the president can ultimately do in our understanding of the role in relevance of article 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 then by what other normative yardstick about the relevance of article 370 will the quote judicially scrutinize the exercise of Power by the president today a very fake but in this case is there any president’s Proclamation
Excising power under Clause 3 to article 370. saying that I’m abrogating article research I just come back we can can I combat it after reading of some part of in the line of my presentation kindly come to like to complete this and come to your lordship that’s a larger 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. because if we 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 an advice
So it’s an advice to facilitate and enable the president to find as to whether article 370 has served its purpose and to close it so the the way the whole Clause 3 of article 370 is to render article 370 in operating but what is that in that context Suppose
There is a constituent assembly yes 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 35 and I’ll ask you to retain 370 the way we wanted
So therefore the the advice the recommendation is not just an opinion when the Constitution uses the expression recommendation it means a positive decision because article 370 uses different phrases it uses consultation it uses concurrence it uses decision recommendation certainly right so therefore the use in article 370 of all these distinct Expressions concurrence
Consultation at their context so therefore the recommendation is you know the entirely distinct idea altogether if the Constitutional assembly was containing that even if the constituent assembly were to say that please don’t abrogate 370. the president can still abrogate 370. he can she can recommendation is not binding on the on the president
Therefore it is recommendation it is not concurrence so confidence for the purpose of 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 that anything left by way of invoking article 370 or extending the provisions of the Constitution of India today and that question will actually necessarily asked when that question is asked what is the role of the Constitutional so if the 378 envisa is a larger role
So that would have defeated the very purpose of constitutional integration therefore the only relevance Mr attorney the use of the expression recommendation is not by itself dispositive of the content of the expression as to whether it is merely an advice whether it is a condition precedent I’ll give you two examples
T there are two examples in the Constitution where the word recommendation is used article 109 and hundred and seventeen 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 2 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 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 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 had to analyze those provisions of recommendation now see 370 it says provided
That 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
Salvation is not to slide that recommendation rule but I say it’s still only a recommendation let me try it actually 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 now the reason why therefore in what I would call a minimal role of recommendation given to the concept
Assembly is in the context of one these chemotherapy and that being part of the larger integration process can a body like the concept assembly again finals say on article 370 it is not a constituent 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 living 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 at all
So it’s only at the end of the day when you have done all that job it’s a stock sticking exercise and eight percent will probably emphasize that you will do it before the Constitutional integration process gets over what is this equator are you therefore contending that therefore since this is purely recommendatory
Therefore the absence of a recommendation also doesn’t make a difference is that the submission or what is this I I’ll personally take that I’ll answer the question that’s only when 1032 there are different opinion or recommendation should be acted upon it will be referred to the commission
Summation will give an opinion and then it says and it shall act according to such opinion which is missing in foreign understood my note I have mentioned I didn’t read it but the resident of Indian being bound solely by a body which is outside the constitution of India not
May perhaps not be the correct interpretation of our constitution like if it says yes he can do it if he says no president cannot leave because constitution of Jammu and Kashmir is beyond and outside our constitution because D does the same thing it says that other Provisions is the
Constitution can be adopted subject to such modifications exceptions if they relate to the instrument of accession consultation anything else concurrence of the state government assembly no but then if the if the constituent assembly was not in existence then it has to be placed before the consequent assembly for his
Decision that means even in the case of the operation of clause D read with subsection with Clause 2 the constituent assembly is given the overriding power even in relation to the president till it survives still it slightly see you can’t say when the cause 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 you
Will have to examine with reference to the procedure you have with reference to because the judgments itself many of the Constitutional brain judgments still says we are not examining that issue we’ll have to examine worry is permission or to learn energy 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 or apply with modification that none of the provisions of the Constitution of India were applicable 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 out but Proviso will no longer be applicable after the constitute assembly is not there but that will not deprive the president of his power 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 actresses Mr Tony you extended that argument therefore the questions arose you extended the argument to say recommendation only means advice and even no advice suppose the Constitution assembly was that’s assuming that the
Constitute of assembly was therefore that part the extension part is the one which is we have to probably understand the context in which why this provision was at all enacted the Constitution integration from the repeated by the only Mantra under article 370. and everything around it revolves around it
371 a b the parliament if enabled to legislate extensional Provisions 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 as well second aquatic categorical recognition in article 370 of the process of the formation of the Constitution of the state of Jammu and Kashmir third 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 370. with a certain constitutional recognition it’s not a constitutional status a constitutional recognition in
Article 370. I guess because 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 women towards greater
Integration of Jammu and Kashmir into the Indian into the Indian into into the Republic of India and the Dominion of India originally and the Republic of India so there was undoubtedly a gradual and imperceptible integration apart from the 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 that there are 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 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 constituent 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 I wouldn’t say casualty but one dilution
And that dilution is the the role which is described by the Proviso to article 370 bracket 3. 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 with because the Constitution provides for a recommendation whereas Constitution provides for recommendation we can’t say that well even if there is no recommendation that’s fine you can override it Endeavor and I just add one thing sorry
For you I’m so sorry to interrupt you see after your main 367 you say legislative assembly is equal to constitute the same we have to take the physiological conclusion we’ve accepted that it exists move but that’s right that’s right but not only one question 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. would it not go against the very spirit with which 370 was incorporated that it has to be temporary and you are an integral part because because
370 sabbatical three says not to withstanding anything contained in the foregoing provision meaning thereby one and two instrument of accession and Article 1 being applicable so constituent assembly technically was not bound by one and two would the president be completely denuded and act as per the desire of the
Constituent assembly it cannot be for the simple reason that debates in the constituent assembly repeatedly say that this is a temporary provision that’s why the assembly it’s the way that answer is given in the article 317. that proportion is not this will be contrary to article 3 7. that’s right we
Have a Lotus permission in support of this submissions thank you you have enough reading materials we will go by churning materials because a couple of thousand pages no this is I don’t think this this statement is necessary at all the the readings some thoughts come in the course of how
Do you explain internal sovereignty how do you explain a certain I thought they are useful I can certainly one last word and then we’ll rise of course we then we’ll think of all that you’ve argued for the holiday tomorrow that the white Chasm between absolute autonomy
As it existed on the 26th of January 1950. all right and complete integration as it was brought about on 5th of august 19 2019. that Chasm had been substantially bridged by what is happening in between so really in the sense it was not it was not a complete migration from absolute
Autonomy to Absolute integration 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 and therefore what was done in 2019 was it really a logical step forward to achieve that integration absolutely
Assimilation was super meaning for us we have interesting issues yes very interesting show Mr attorney about how long would it take about half an hour or so much sorry maybe an hour more after that Mr David he will
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