Arguments of Rajeev Dhavan Sr. Adv. in Art. 370 case before Constitution Bench

Arguments of Rajeev Dhavan Sr. Adv. in Art. 370 case before Constitution Bench

RAJEEV DHAVAN: Now, My Lords, I would begin by saying, as well from My Lord, the Chief Justice, that this oral submission is in the nature of a dialogue, and a very important dialogue, which even the US Supreme Court doesn't have. They assume everything is read and a little bit of question and answer and that's it. And it is because of the nature of the dialogue, we have to, in an ongoing basis, answer what fell from Your Lordships as well. I'll give Your Lordships an example. My Lord, the Chief Justice made a reference to 249 and 252. Of course, they are of a different genre, but nevertheless My Lord, that question is very, very important for us to build the diversity argument, and whether there is transformative Constitutionalism, whether there is a basic structure, whether that's a lost cause or not? Then My Lord, Your Lordships had asked questions about Article 3(1)(d) [Article 31(d)], and whether Article 370, Sub-Clause survives? Now, this is important because it's been used only twice. It was used in G.O. 44, and now it has been used once again in G.O. 273. Now, if it doesn't survive My Lord, how can it be used in this particular way? We have to answer that question for Your Lordships. In addition to that My Lord, there seems to have been some confusion or misunderstanding on the status of merger agreements. The question that fell from Your Lordships was, that once the instrument of accession is over, sovereignty is complete. Our respectful submission, My Lord on this, which I will elaborate... I've done it in a note like Mr. Zaffar. I'll hand over that note to Your Lordships. My Lord, as far as the Instrument of Accession is concerned, it deals with external sovereignty. Kindly bear this in mind, it's very important. External sovereignty is lost, with a few exceptions here and there. But, internal sovereignty is not lost. That is why in Premchand they say the monarch was still an absolute monarch... Prem Nath Kaul, sorry. So, My Lord, the purpose of the standstill agreement was, what system would you have in the meanwhile? The Raja of J&K didn't sign didn't sign a standstill. The records show there was some to-ing and fro-ing eventually, which means, he retained all his power. So, as far as internal sovereignty is concerned, the standstill was very important, because all the powers of the Maharajas and the coming states, retained their internal sovereignty.   Now, come to the merger agreement. The merger agreement is important, My Lord, because it finally indicates the extent of internal sovereignty. If there was no standstill agreement, and if there was no merger agreement, the Maharaja would be absolute, as Prem Nath Kaul says. So, I take 370 to be, My Lord, a substitute, a Constitutional substitute for a standstill and merger agreement, without which, My Lord we are lost, and I'll explore that later when I come to 370. Your Lordship also put a question to Mr. Zaffar Shah, that on the 4th of August, what were the autonomies that you were allowed, you were going to lose? He promised you a list, My Lord. One answer to that is everything. But I will indicate what these autonomies meant and what was lost for Jammu and Kashmir. Which comes back to Justice Kaul's question, are we flogging a dead horse? The answer is no, My Lords. It continues and it has to continue to preserve My Lords, the federation and the conditions under which the federation was created. So let me begin with, what I began with the other day My Lord, and that is, that we have the greatest diversity in the world. Take many continents together take many countries, this diversity is unparalleled. That is why My Lord, Professor Ravindra Kumar, I asked him, I said, what should I say in my Colombo lecture? He said, say that the Constitution of India is a Constitution for a civilization with many nations and many cultures. And this is what makes our Constitution, more exciting than any other. On the question of diversity, I was taking Your Lordships to.... I've done a list, which I'll give to Your Lordships, but I was going to invite Your Lordship's attention to Article 3, first. All of Article 3, My Lord. But I'm going to read one important aspect of it My Lord and that is the proviso, which says that before anything is done under Article 3, it is mandatory for the President, to refer the Bill to the legislature. Mandatory. It's a condition precedent before you invoke Article 3. Just as there are conditions in Article 370, which have to be fulfilled by condition precedents. Now on Article 3, My Lord, the proclamation of 19th December, virtually created an amendment of Article 3, by taking the condition precedent out. Mr. Sibal, read all that to you, but I want to refer Your Lordships, to that particular part of the proclamation...My copy somewhere here. Your Lordships will find this My Lords, unlike Mr Dwivedi I have no problem with what Your Lordship is doing. We just have to learn and catch up My Lord. This Your Lordships will find in Volume 3, documents. 


RAJEEV DHAVAN: And the PDF My Lords, I'll just give it to Your Lordships. 


RAJEEV DHAVAN: PDF 92. Now, My Lord, I want to take Your Lordship straight... away. And it's very important that we should... 

CHIEF JUSTICE DY CHANDRACHUD: Ultimately, everything boils down to this. Of course, the Constitution itself, and so far as documents are concerned, in one page now we have. In case something is missed, you can tell.... Dr. Dhavan's instructing advocate, they'll just put it in and the... 

RAJEEV DHAVAN: [UNCLEAR]. Your Lordship will see that there is a condition precedent in Article and this condition precedent was added to by C.O. 48, which I'll show to Your Lordships in a moment. Which further required the bill to be sent to the legislature of the state, but we're not concerned with that because it has to be sent to every single state. Now I take Your Lordships to this notification, C Sub-Clause 2. So much of the first proviso of Article of the Constitution as it relates to the reference by the present to the legislature of the State, and the second proviso to that Article, so that much of Clause of 151, which is about audits My Lord, of the Constitution as it relates to laying before the Legislature of the state off of the report submitted by the Governor to the Controller Auditor General. You will see that the opening sentence is 'the following provisions are suspended.' In other words, a mandatory provision of Article 3, whether it applies to Kashmir or elsewhere is suspended. It's not a question of just laying before Parliament as a substitute, Article and Article 370 does not tolerate substitutes. Now, My Lord, what does this do? This is not, My Lord, that can be done under a proclamation under 356. It is a Constitutional amendment, which is subversive of the Constitution itself. If this suspension fails My Lord, President's rule will fail, and its extension in July will also fail. You have amended the Constitution albeit to all states, and certainly to Jammu and Kashmir, and this mandatory provision takes us to the core of the mandatory requirements of Article 3, because the entire J&K Reorganization Act emanates from Article and Article 4. Take away this condition… CHIEF JUSTICE DY CHANDRACHUD: How do we deal with this Article 356(1)(c)? 

RAJEEV DHAVAN: Sorry My Lord? 

CHIEF JUSTICE DY CHANDRACHUD: Article 356(1)(c) says, that he may make a place a proclamation, where a situation has arisen, that the Government cannot be carried on in accordance with the provisions of this Constitution in any state, and then (c).   

RAJEEV DHAVAN: … make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending, in whole or in part, the operation of any provision of this Constitution relating to anybody or authority. 

CHIEF JUSTICE DY CHANDRACHUD: So, the President has a power to suspend certain provisions of the Constitution during the operation of a proclamation under 356. 

RAJEEV DHAVAN: The suspension, in this case, goes beyond supplemental, My Lord. It goes to actually taking out a mandatory provision. Of course, My Lord, Article says, that any change that is made, will not… will be treated as not requiring an amendment. But leave that aside, My Lord. How is and to operate after this? The Presidential duty My Lord, has to be a little more careful, because this was tailored way back in 19th December 2018 to start a process, My Lord, of amending the Constitution for the purposes of which... 

CHIEF JUSTICE DY CHANDRACHUD: Normally, when the legislature, here, of course, it’s the Constitution, uses the expression ‘means’ and ‘includes’… Here it's not ‘means’, but it says ‘make’ and ‘includes’. When ‘means’ and ‘includes’ is used by the legislature, it's an indication of expanding the power. So, when the Constitution says… we begin by saying, make incidental or supplementary provisions, and then says ‘including’. So, this ‘including’ seems to be to widen the ambit of what was stated earlier, namely… The earlier part says, you will make only… you'll make incidental or supplemental provisions. But then it says,’ including’. So ‘including’ would mean that, what was otherwise not a supplemental or incidental provision, is within the ambit of the Presidential Proclamation, isn’t it? Because, suppose the Clause C read just up to ‘proclamation’, and didn't have ‘and including’… it's not ‘an including’, it's ‘including’. 

RAJEEV DHAVAN: That's right. 

CHIEF JUSTICE DY CHANDRACHUD: Suppose it ended with the word ‘proclamation’… 

RAJEEV DHAVAN: … the operation of any provisions of the Constitution… 

CHIEF JUSTICE DY CHANDRACHUD: So, if the last part of Article 356(1)(c) was not there, you could have challenged any amendment of the Constitution on the ground, that you   don't have the power to make an amendment to the Constitution in the guise of making it incidental or supplemental provision. 

RAJEEV DHAVAN: My Lord, this is the basis of our challenge. In our petition, we have challenged only the suspension. 

CHIEF JUSTICE DY CHANDRACHUD: My question is this, suppose the President, in a proclamation, suspends the operation of any provision of the Constitution, is that amenable to a challenge on the ground that it is not incidental or supplemental? Or are these words of widening the ambit of the first part of 356(1)(b) so as to be immune from such a challenge? RAJEEV DHAVAN: This Lord has remained within the limits of 356, that is for the Governor, you read the President, for the Legislature, you read the Legislature. But I've never seen a provision in any proclamation My Lords, throughout these decades, which actually uses the supplemental and in including, I've never seen it take away a mandatory provision of the Constitution. This is exceptional My Lord. Now you can read it together in one way. You can read it together in the other way. If you expand 356(c) My Lords, then you will say, that the President has a carte blanche to amend any part of the Constitution, as part of the supplementary provisions. 

CHIEF JUSTICE DY CHANDRACHUD: Can you, for example, say that there'll be no judiciary in the State? 

RAJEEV DHAVAN: That's right My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: That's what you are... 

RAJEEV DHAVAN: That maybe covered by the proviso, but any... 


RAJEEV DHAVAN: So My Lord, supplementally this 356(c), has to be read with the mandatory provisions, which it cannot dilute. 

CHIEF JUSTICE DY CHANDRACHUD: But actually the proviso, Dr. Dhavan the proviso, seems to indicate that if the Parliament, if the Constitution wanted to exclude a particular power from the authority to suspend the provision of the Constitution, then that has been   specifically defined. So the provider says that you will not suspend anything pertaining to a High Court, or you will not assume to yourself as a President any of the powers which are vested by the Constitution in a High Court, during the operation of a proclamation under Article 356. So where it wanted to introduce a restraint on the Presidential power, it has done so in the form of the proviso. 

RAJEEV DHAVAN: Right. CHIEF JUSTICE DY CHANDRACHUD: Do we now say that well apart from the proviso, there may be certain other parts of the Constitution which the President cannot suspend? 

RAJEEV DHAVAN: No, that is... 

CHIEF JUSTICE DY CHANDRACHUD: Or would that be reading into Article 356 words which are not there? 

JUSTICE SANJIV KHANNA: Just one thing, I think coupled with the words, appears to the President to be necessary or desirable for giving effect to the objects of the proclamation. 


JUSTICE SANJIV KHANNA: So there has to be connect, and a nexus with the object of enforcing the proclamation. That's a restriction. 

RAJEEV DHAVAN:It must relate to 356.In other words, whatever is required to materialize 356, it must be related to that. And therefore My Lords, these words necessary or desirable, are not carte blanche powers of the President. Could he have under these provisions suspended Part 3? It has been done My Lords. 


RAJEEV DHAVAN: That's fundamental rights, directive principles. Could he have done all that the My Lord? Therefore, My Lord, it has to be given, even with the caveat of regards the High Court, it has to be given a limited meaning where Your Lordship finds that in every State that has been created under Article and 4, this has been treated as a mandatory provision. There is a caveat that Your Lordships has imposed, on Article and 4, that all that it requires is a reference to the Legislature and the Union is not bound by it. Those My Lords, when I   come to my written submissions, I'll run through them very fast because, I don't need to take out the books or refer to the cases. This to my mind, My Lord taints the entire process. Gopal Sankaranarayanan My Lord, "On the inclusion provisions for suspending, in whole or in part the operation of any provisions of this Constitution, relating to anybody or authority of the state" and then a colon. This further subscribes the extent of the Presidential Proclamation. Otherwise My Lord, 356 is an exception. It overrides federalism. It collapses democracy in a State. [NO AUDIO] ...Your Lordships because if the Presidential Proclamation does something that is irreversible and that is the test Your Lordship will use. And Justice Khanna, is right My Lord, when he emphasizes necessary or desirable in relation to body and authority, as I pointed out. If this proclamation is bad then it's extension in July is also bad because that was a Parliamentary extension for the further six months. 


RAJEEV DHAVAN: Now Article 358, Suspense Article 19, during the proclamation, not beyond. This is now My Lord, and Your Lordships will see that further when I present C.O. 272 and 273, they go well beyond the period and the genesis of all this is the Presidential Proclamation. Even assuming it goes for one year, it takes away conditionalities which cannot be taken away. Later, My Lord, I'm sorry. I'm sorry if I'm a little loud, I'm not used to whispering into microphones, like my predecessors. Now, My Lord, I'm going to place.... 

RAJEEV DHAVAN: No, classrooms they are very soft. Classrooms are a wonderful exchange with students, unparalleled. Just as this is an exchange between the Bench and us, My Lord, and it is the nature of this exchange, My Lord, that we must honour, under limitations of time, of course, but we must honour this exchange as the most important part of arguing in this court. Now, My Lord, in Article 3, Your Lordships will see, that… because Your Lordship raised a question, what did you lose on 4th August… after 4th August? The C.O. 48, PDF 13. I'm going to have nightmares about PDFs, My Lord. Now, if Your Lordships were to come to page of Volume 3… 406, sorry, not external.   




RAJEEV DHAVAN: Same volume. This is the… 


RAJEEV DHAVAN: ’54 Order. My Lord, in a sense, the ’54 Order and 370, represents the Constitution as it relates to Kashmir. They were brought in by the Constituent Assembly. Now I'll just read out that particular portion, My Lord, so that I complete the 3, argument, before I go into the business of how elaborate our Constitution is. At the bottom of that page 406, “Provided further, that no bill providing for increasing or diminishing the area of the State of Jammu and Kashmir, or altering the name or boundary of that state, shall be introduced in Parliament without the consent of the Legislature of the State”. It puts in a conditionality My Lord, not just to circulate it, but a conditionality emanating from the state itself. Now, whether all this can be wiped out by C.O. 272 and 273, is another matter altogether. I'm going to make one further proposition, My Lord, about President's Rule, lest I forget. I'll refer to it later, My Lord, if I can. Now, the further proposition, which is a wider proposition, is this, that during President's Rule, Article and and 370, cannot be invoked. 



RAJEEV DHAVAN: and My Lord. Why? Because they have conditionalities My Lords and the conditionality is specific to the Legislature of the state, to the Government of the state, and the Legislature becomes Parliament. The Governor becomes the President. Therefore the conditionalities that exist in and in Article 370, neither Parliament nor the President, can be substitutes for the conditionalities that exist in Article 3, and 370. You don't go through that process...   

JUSTICE SANJEEV KHANNA: Dr. Dhavan, such a broad proposition with regard to Article 3, 4, forget about 370 for the time being, may not be correct in terms of the language used of Clause to 356. Let's hope it never happens, but in a given case it can happen. There can be disputes... 


JUSTICE SANJEEV KHANNA: ...between two States, which is impossible to resolve until or unless the centre steps in, with regard to boundary or something like that. So broad proposition, don't... 


JUSTICE SANJIV KHANNA: If you're making a broad proposition like that it's very difficult. It's very difficult to accept. RAJEEV DHAVAN: I am responding, I am responding.. 

JUSTICE SANJIV KHANNA: Because we can be [UNCLEAR] of situations which we may not be able to postulate as of today. 

RAJEEV DHAVAN: My Lord, I'm making a proposition about process and substitution, because 370 Subclause (1), My Lords has its discipline, just as and has its mandatory discipline. 

JUSTICE SANJIV KHANNA: Leave, 370 for the time being, but a broad proposition that Article and 4, the proviso can never be suspended in terms of Article 356... 

RAJEEV DHAVAN: My Lord, he Parliament cannot be and I'll show the debate when Amit Shah introduced this, My Lord in the Lok Sabha. Parliament cannot be a substitute for the Legislature of the state. That's a very narrow proposition. I'm being prompted, My Lord nicely. And when Mr. Sibal talked about the political uses and abuses of the Constitution then proclamation 19th December, is an abuse of the Constitution, and it would be a further abuse of the Constitution if we substitute for legislature.... 

JUSTICE SANJIV KHANNA: Dr. Dhavan, Dr. Dhavan there's difference between existence of power and abuse of power or use of power.   

RAJEEV DHAVAN: Of course My Lord. JUSTICE SANJIV KHANNA: So let's not confuse the two. RAJEEV DHAVAN: Sorry My Lord? 

JUSTICE SANJIV KHANNA: There is a difference between existence of power or use of the power or abuse of the power, so let's not... 

RAJEEV DHAVAN: There is a power, no doubt. Its exercise is equally fundamental. We can't wish away the exercise, as being purely nominal in nature. Now My Lord, when Maharashtra was broken, in the judgments are all there in my written submissions. I'll take Your Lordships, very fast through them, they said you have to refer whether you like it or not. Likewise. Punjab M y Lord. You have to refer the bill to the Legislature of the State. You can't self-refer it to Parliament. And the Constitution says, no bill can be introduced, My Lord. It's a complete [UNCLEAR] because we have to understand, the limitations of President's Rule and this is one of the important limitations My Lord, that during President's Rule you may have the power to do whatever you want in 3, and 370, but the process My Lord are conditions, which can't be substituted by simply saying, the Governor will now become the President, and the Legislature will become Parliament. This process of substitution, My Lord, is subversive with the Constitution. 

CHIEF JUSTICE DY CHANDRACHUD: Dr. Dhavan, can Parliament enact a law during the subsistence of a proclamation under Article 356, in exercise of the power under Article 246(2), or in respect of a state list item? 

RAJEEV DHAVAN: My Lord, they can pass a law My Lord, no doubt about that, subject to all the limitations that exist, except My Lord, whereas when it passes a law, under Article and 4, it must observe the conditionalities. 

CHIEF JUSTICE DY CHANDRACHUD: In other words, what you are trying to... your argument would be this that while Parliament can exercise the lawmaking power of the state legislature during the subsistence.... 

RAJEEV DHAVAN: With all its limitations.   

CHIEF JUSTICE DY CHANDRACHUD: Yes, with all its limitations. 

RAJEEV DHAVAN: The State list comes to them. 

CHIEF JUSTICE DY CHANDRACHUD: The state list comes to them. But certain other functions of the State Legislature, namely, in terms of the first proviso to discuss legislative proposals for altering the boundaries of the state or under the second proviso for giving consent, that power can't be assumed by Parliament. 


CHIEF JUSTICE DY CHANDRACHUD: Because then we are creating an exception with the language, I mean, you may possibly argue that you have to create that exception to give a purpose of interpretation to that provision. But this one, one part is very clear that to accept your argument, we are then creating an exception to 356(1)(b). Because 356(1)(a) says that the powers of the state government are vested in the President or in the Governor, as the proclamation would say. Other than the powers of the legislature of the State. Then 356(1)(b) says, declared that the power of the Legislature of the State shall be exercisable by or under the authority of Parliament. So we will then, to accept your argument we have to then hold, of course, maybe by a process of construction that those powers which are referable to Article and 4, which are powers of the legislature of the state. No doubt they are powers of the legislature of the state... 

RAJEEV DHAVAN: Difference between the legislative powers of this and the consultative and other powers of the Legislature. If Your Lordship will see 357... 

CHIEF JUSTICE DY CHANDRACHUD: But it says, declare that the powers of the legislature of the state. Now, which are the powers of the legislature of the state? 

RAJEEV DHAVAN: Legislative powers, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: Not just the powers in Article 246, but it could be all the power of the Legislature of the State, which are vested in the Constitution. Would that be not a more natural construct of that....?   

RAJEEV DHAVAN: I will take Your Lordship to Article 257, Sub-clause My Lord. 357.... 357(1) My Lord, declares that the powers of the Legislature shall be exercisable by or under the authority of Parliament. It shall be competent for Parliament to confer on the President the power of the legislative of the State to make laws, and to authorize the President to delegate, subject to such conditions as they may think fit, the power so conferred to any other authority. For Parliament, or the President, or any other authority in whom such power to make laws is vested under Sub-Clause A, to make laws conferring and imposing duties or authorizing the conferring of powers and the imposition of duties upon the Union or the officers and authorities thereof. For the President to authorize when the people, also the people is not in session, expenditure from the consolidated fund of the State, pending the sanction of such expenditure by Parliament. More important My Lord is two, any law made in the exercise of power of the Legislature by Parliament, all this President to other authority referred to in subclause so and so, which Parliament or the President or such authority would not, but for the issue of the proclamation of 356 have been competent to make after the proclamation is ceased to operate, continue in force until altered or repealed or amended by a competent legislature. Which is the competent legislature My Lord? So even as regards the functions of Parliament, they are specified. 356, is not plenary in nature, it's important to understand that. It is the bane of the Indian Constitution, My Lord. It's introduced again, and again, and again. In fact, My Lord, when I was doing my work in the Indian Law Institute, I was reading the 1935 debates, My Lord, where Churchill interjects and says, "Create the situation in every single province" Now, My Lord, 356, has been used and abused to a point where there must be some discipline to it. It is certainly not, My Lord, a power to amend the Constitution. My Lord, transferring executive and parliamentary functions, that is, the power to legislate alone, is the core of 356 and 357. There are many provisions in the Constitution, I have a list here, My Lords, where legislatures exercise many other kinds of powers as well, My Lord. Powers of election, powers of negation, powers of consultation. So, it has to be limited, My Lord, otherwise, what happened in the 5th August onwards, can happen to any other state during President's Rule. That is why the broad proposition. 

CHIEF JUSTICE DY CHANDRACHUD: Dr. Dhavan, legislatures exercise other powers. You said consultation. Which were the other ones? I just missed that. 

RAJEEV DHAVAN: My Lord, I have a list here. Article 3, for example, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: So, how do we conceptualize those other powers? Consultation, you said... you used some phrase, which I just lost. You said legislatures exercise other powers...   

RAJEEV DHAVAN: No, there are legislative powers, which emanate from... 


RAJEEV DHAVAN: Article 245, which says subject to the provisions of the Constitution. And, it's important, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: What are the other powers that you said? You said consultative... 

RAJEEV DHAVAN: Article is a consultative power to express views. Article 54 is the right to vote in Presidential elections. J&K was not able to participate, My Lord, in the last Presidential elections. Article 80, is to elect members to the Rajya Sabha. Article 169, is to pass a resolution for the creation of legislative councils in a state. Article 171, 243 M, My Lord, I'll come to those because I want to go into the question of the diversity of the Constitution. 


RAJEEV DHAVAN: Then My Lord, 243 M. Then, of course, most important My Lord, the list of them, I'll give it to Your Lordships, I think it's better. 


RAJEEV DHAVAN: But the important part is it's limited to the legislative powers. It certainly cannot amend the Constitution My Lord, or I'm going one step further, or deprive the Constitution of its mandatory processable requirements. It's an argument about process and power. And this in my submission My Lord, taints My Lords, also the extension of the President 's rule. 

CHIEF JUSTICE DY CHANDRACHUD: That point you have made. 

RAJEEV DHAVAN: Which is done by Parliament, which I've already indicated to Your Lordships. This is fundamental My Lord, to how this process, of diluting 370 occurred. And how Article 4, My Lord eventually got used, with all these incidental provisions, which were limited to legislative powers, and none other. Now My Lords, I wanted to get back to the point I started with, about the diversity of the Indian Constitution. I'll quickly take Your Lordships   through it, because Your Lordship is concerned with how this diversity can be preserved. Bodoland, My Lord is mentioned in the Constitution. Nagaland has My Lord and others have autonomous councils. I'll take Your Lordships through that. Now My Lords, if this can be done under President's Rule, anything can happen. What I've done My Lord, to save time is I've prepared a list of the articles that take us to diversity. I'll quickly run through them in the Constitution itself. I know, Your Lordship doesn't like paper being handed over My Lord but we can put it on the website My Lord. 

JUSTICE SANJAY KISHAN KAUL: This is acceptable because these are only articles of the Constitution. 

RAJEEV DHAVAN: Quite right My Lord, quite right. My Lord it saves time, it saves time. That permission is permissible, because when Your Lordships didn't permit Mr. Sibal to give supplementary submissions, I thought that's a harshness that might be imposed on handing anything over to the court My Lords. Now My Lords, come to Article 2, My Lord. This is important, My Lord. It's Parliament's power to admit to the Union new States on such terms and conditions as it thinks fit. This is very, very different My Lord from the assimilation My Lord, of the princes etc. Into the Constitution. That is, you go through an Instrument of Accession, you go through standstill, you go through merger, which then determines what is really entered into. Of course, My Lords, in Poudyal's case, the majority judgment of Justice Venkatachaliah takes into account the entire history of the negotiations and says that although the Constitution says one person, one vote, nevertheless we will permit reservations for Bhutias, Lepchas, . In the context of that history, we will nevertheless prohibit it. And there were two defence by Chief Justice Sharma and Justice Agarwal. Now Poudyal reminds us that these negotiations are important, even though it says as it thinks flit. 2A, was removed in the Constitution because second was given associated statement first. Now kindly come to which I've dealt with, and 4. Then My Lord, kindly come to a very interesting provision when we're dealing with affirmative action, that's Article 35. Now this is a very interesting provision relating to Article 16(3). I'll just read it because it's important, "Notwithstanding anything in this Constitution, parliament shall have, and the legislature of a State shall not have power to make laws with respect to matters in Article 16(3), 32(3), 33, of a prescribing punishment for those Act which are declared offenses under this part and Parliament shall as soon after the Constitution make laws prescribing punishment laws immediately." Now, here's a very interesting provision My Lord. In relation to affirmative action, the power of the Legislature is taken away. To change this My Lord would require an amendment to the   Constitution. Two judgments have dealt with it starting which have dealt with Andhra Pradesh and Jharkhand, but we needn't go into that. Then if Your Lordships will come to Article 164, I pointed this out on the other day, these are safeguards, My Lord, for the federal unity of India. As a deal was 370 for the federal unity of India. It is part of the basic structure of federalism in our Constitution. When I was formulating this argument, I was told Your Lordships might be averse to a basic structure argument, so don't make it too strongly. So I'll stay within my limits, saying these are limits that a Constitution has in relation to federalism. Now 164. I've given Your Lordships the list. I'm going down the list where taking Your Lordship through the important provisions. Article 164...[NO AUDIO] My Lord has a proviso, "Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a minister in charge of Tribal Welfare, who may in addition, to be in charge of the welfare of scheduled castes and backward classes, or any other work". My Lord, this, if it is to be changed, requires a Constitutional amendment. It can't be done under President's Rule, saying we will have this minister or that minister. Then, My Lord, if I may take My Lords straight to 168, which empowers the legislature, My Lord, much in the same way as the J&K Constitution empowered the legislatures. Article 169, My Lord. 168 and 169. This relates to whether there should be two Houses in Parliament or not. Kindly bear in mind, Jammu and Kashmir had a Legislative Council under its Constitution. I'm reading 169(1). "Notwithstanding anything in Article 168, Parliament may, by law, provide for the abolition of the Legislative Council of a State, having such a council, or for the creation of such a council in a state having no such council, if the Legislative Assembly of the State passes a resolution to that effect, by a majority of the total membership of the Assembly and two thirds of those present and voting". And, in our case My Lord, the Legislative Council is gone. Well, actually, the whole of the J&K Constitution is impliedly gone. Where was the power to do away with that, that's another question that I'll come to. Then, My Lord, kindly come to Article 239. I had earlier said the other day, that most of the union territories, other than Chandigarh, were created by Constitutional amendment, or under the aegis of a Constitutional amendment, like the 6th Amendment. 239A, My Lords, deals with how union territories are to be created, and the creation of local legislatures. This can't be given the go by My Lord. "Parliament may, by law create for the Union Territory of Puducherry, a body elected partly or partly nominated, partly elected, to function as a Legislature and Council of Ministers, or both, with such Constitutional powers and functions, in each case, as may be specified". Now, My Lord, compare with what has happened in the case of J&K. State has become union territory. Two union territories, one without a legislature, one with. This was not within the remit of Article and 4, as an incidental provision, where you lose your character as a state, and there are two union territories that   have been created, not by reference to Article 239A or 239AA. If you wanted an elaborate Constitution, put in place as in the J&K Reorganization Act, you should have done what is done with Delhi. Now My Lord, Your Lordships are very familiar with the two Delhi judgments. My Lord. I'm not going to take. I'm going to refer to passages of it because they deal with diversity. But when I read my written submissions, they'll be there. I won't have to ask Your Lordships to PDF. Now, My Lord, come to Article 240. Power of the President to make regulations for certain Union Territories, Puducherry is mentioned My Lord, as E. Do we add JK, My Lord and Ladakh to it? Because if 240 is applied to J&K, as it must be My Lord, it's a Union Territory now, or perhaps that has to be added by Constitutional Amendment. But My Lord, the President will make regulations for peace, progress and good government of Union Territories. Is this applicable, My Lord? If so My Lord, it undermines not just federalism My Lord, but democracy itself. Now My Lord, may I take Your Lordships to 243, particularly to 243 M and 243 ZC. Now 243 M says, part Panchayat, so fundamental to three tier federalism, shall not apply to certain areas. I'm just showing the diversity My Lord, that exists. Now My Lords, if Your Lordships will come to Subclause 2(3)(a), this will not apply to the District of Darjeeling of West Bengal, for which the Darjeeling Gorkha Council exists under any law for the time being enforced. Even the Panchayat amendments My Lords, have been curtailed in this balance of federalism. Not My Lord, by any executive exercise and then My Lord, 3A, that it won't apply to Arunachal Pradesh, and then once again, My Lords, here is a non-legislative function My Lord, in Article Legislature of the State may by extend this part to the State accept the areas referred to in Clause 1, 'if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of the house and by a majority of not less than two thirds' . Here is once again a provision, My Lord, the most fundamental exercise of three tier federalism My Lord, which is a part of our Constitution. Then My Lord ZC, 243 ZC says the same thing My Lord, about the Darjeeling Gorkha Hill Council. First My Lord, 243 Z D, My Lord,, which is about municipalities. It applies to Union Territories which have a Legislative Assembly. What happens to Ladakh. 243 ZC, My Lord has similar provisions, as regards municipalities as it does to Panchayats in relation to the Darjeeling Gorkha Hill Council. 275 My Lord, very fast. Sorry 244. This is dealing with scheduled and tribal areas. None of this can be wished away, certainly not by executive action My Lord. it is so crucial to understand this diversity of our Constitution. 244 says, 'Administration of Scheduled Areas and Tribal Areas shall apply to the administration and control of Scheduled Areas in any state other than the States of Assam, Meghalaya, Tripura and Mizoram. And then 244 A is a very important provision because it relates to autonomous   States. Our Constitution doesn't shy away from creating autonomous States. In fact, it reinforces them. And if there was that measure of autonomy My Lord in JK, then it is not inconsistent with so many provisions in our Constitution, which respect autonomy for what it's worth in special areas. 244 A is very important and when I come to Schedule 6, because if this can be done under President's rule, place any under President's rule expanded beyond the legislative function, simply can't be done My Lord. These are mandatory provisions of the Constitution. 244 A, formation of an autonomous state concerning tribal areas in Assam, and the creation of local Legislative Council. Parliament may by law, from within the state of Assam and an autonomous State, comprising whether wholly or in part of tribal areas. Autonomy of the States is fundamental to our Constitution. I rely on the two Delhi judgments, My Lord of Your Lordships to reinforce this, where Your Lordship respected the autonomy of the legislatures and their existence. Those passages I'll show to Your Lordships very fast, because they are in my written submissions. Autonomy My Lords, is not alien to our Constitution. You can't just standardize all the provisions and say, look, we gave autonomy here, but we're not going to give autonomy to J&K. Why? Because on December, we took away a provision. J&K is not a dead horse, to be flogged, or not to be flogged. It is the Constitution of an autonomous region through the merger agreements, which are part of 370. I'll come to 370 in a moment. It's very important to understand and not wish away the autonomy in Indian federalism. Then if I may take Your Lordships to 275. It has special provisions made in 275, Subclause A. Now, My Lord, kindly see what happens to the disbursement of grants to autonomous states in 275(1)(a). Next 279 A, which is the GST Amendment. I put it in summary form, My Lord, in the table, so that it will be a little easier for Your Lordships. Even in the distribution, My Lord, as far as the GST applies, 279 A, Sub-Clause (4)(g) says, “Special provision…” Sorry. I'm sorry about where I put in my chart 279, it should say 279 A. Now, My Lords, (4)(g) is a very interesting proposition. “Special provision might be made to the states of Arunachal, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand. 

JUSTICE BR GAVAI: This must be on account of geographical reasons. 

RAJEEV DHAVAN: Sorry, My Lord? 

JUSTICE BR GAVAI: This will be on account of geographical reasons, or these are hilly states?   

RAJEEV DHAVAN: Partly that, and partly because of the nature of the states. Your Lordship is right. But this can be reversed and it will be placed before the GST, because it says later on, that the GST Council will look at this. Now, My Lord, I come to Article 330. Very important provision, My Lord. To say that special provisions can't be made in the Constitution is [UNCLEAR]. These special provisions relate to certain classes, Scheduled Caste, Scheduled Tribe, Anglo-Indians, etc. Special provisions are a regular feature of our Constitution. I don't want to take Your Lordship through this, but these special provisions exist, without which My Lord, so much could not be done for the SC/STs or the OBCs. In fact, all these commissions, My Lord, they report. And when the Government of the State… it is a very interesting provision… that it shall be laid before the Legislature of the State, explaining with a memorandum the action taken or proposed to be taken on the recommendations relating to the reasons for the non-acceptance. This is 338(7). This is what should be done with President's Rule, My Lord. Even the Governor's Report was not placed. This is what has to be written in, just as Your Lordships, with Nagaraj, added conditionalities. This is what should be written into 356. You put in all the information you have, you put in the Governor's Report, and you give the reasons for the non-acceptance. This runs for the other commissions as well. Otherwise, My Lord, 356 has become a farce. When I was doing my book on President's Rule, the elaborate discussion on Kerala, when President's Rule was imposed. As we come down the line, there is hardly any discussion in Parliament. Why? Because all the information is not even there. And in the case, My Lord, of Jammu and Kashmir, it wasn't there. The entire correspondence, My Lord. I'm just building My Lord, something that is here in 338(7), which is also for the other commissions, My Lord. Something My Lord, that gives information to the people and those people who have to, Parliament then has to bless or un-bless, as the case may be, President's Rule. That entire cache of information, which is so fundamental to democracy and federalism, is missing in the Proclamations. Then My Lord, if I may take My Lord's, to an interesting provision, My Lord, 330, My Lord. which makes special provision for reservation of Scheduled Caste and Scheduled Tribes. 

CHIEF JUSTICE DY CHANDRACHUD: We saw 330. We have seen 330. 

RAJEEV DHAVAN: Assam is mentioned, you have done that. 343, My Lord. This has to be read with the 8th Schedule, Kashmiri, My Lord is one of the languages recognized by the 8th Schedule. Kindly just bear this in mind. So in communications, in complaints, etc. Kashmir...Kashmiri can be used. That has not been taken away and cannot be taken away. Part of the spirit My Lord, of a region or a State, is its language. Now, Your Lordships, when you look at the language of the Union, a commission is appointed. 347 makes special provisions   for language spoken by a section of the population and of course My Lord, Chapter 4, that's 350, has Special Directives in relation to language. Who is going to make those Special Directives now? The President? Parliament? What is the status of Kashmiri now? Does it disappear from the 8th Schedule, My Lord? Then My Lord, 371 A My Lord, has a very interesting provision. 368, My Lord, I have kind of dealt with My Lord, so I won't take Your Lordships, through that, but 371 A My Lord. This is a very interesting provision My Lord, with all this discussion on the Uniform Civil Code. These are also unamendable provisions, My Lord. Just as we are arguing the 370 was unamendable, My Lord, by 368 subject to a certain procedure. 371 A says notwithstanding anything in this Constitution no act of Parliament in respect of the religious and social practices of the Nagas. Naga Customary Law and Procedure Administration of civil and criminal justice involving decisions according to Naga Customary Law shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. Non-legislative power. And the same is repeated, My Lord, The important provision. My Lord, in 371, of course, concerns the hill areas of Manipur. Very relevant. My learned friend has a point, that if there is President's Rule, the Legislative Assembly has this power. Can Parliament exercise this My Lord? That is why My Lord it is restrained in 356. Now, a controversial provision in which Your Lordship has given a judgment is 371 F. Capital F. Subclause F. This is Poudyal. If I have time, I'll take Your Lordship or if not, I will just refer to paragraphs. Parliament for the purpose of protecting the rights and interests of different sections of the population of Sikkim, may make provisions for the number of seats in the Legislative Assembly of the State of Sikkim, which may be filled by candidates belonging to such sections, for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly. This was examined in Poudyal. I'll give Your Lordships for reference which volume is it in. It's in Volume 14. The argument was a very interesting argument. Baba Saheb Ambedkar himself said in Parliament that there will be one person, one vote apart from the reservation for SC/ST, etc. So the argument that was advanced which led to a 3:2 decision was that, although this is their part of the Constitution, we have to take the history of Sikkim into account and reservations for Bhutias, Lepchas and the son .This Your Lordships will find in Volume 14, 6350. The majority starts at 6392. Mandatory provisions respecting what the people of Sikkim had asked for, albeit with adjustments to the Constitution. Now My Lord, while you are on it, will Your Lordship just turn to Poudyal because it's important to bear in mind. Volume 14, 305. Starts with... 


RAJEEV DHAVAN: Cases volume. 


RAJEEV DHAVAN: Now, My Lord, if Your Lordships will turn to 6394, which is PDF 349. 

CHIEF JUSTICE DY CHANDRACHUD: Where does it actually begin? The judgment? Oh yes, I got it. 

RAJEEV DHAVAN: Sorry My Lord? 


RAJEEV DHAVAN: Where it starts, My Lord. 


RAJEEV DHAVAN: And I am referring to the discussion in Chief Justice Venkatachaliah's judgment My Lord at PDF 349. Now, here I'll go through it very, very quickly. When learned Chief Justice My Lord, goes from paras 66 onwards to all the proclamations and discussions, till para 76.... 74, in particular at page 6396. The year 1973 saw the culmination of a series of successive political movements in Kashmir towards the Government responsible to the people. Then it mentions the Tripartite Agreement, Clause 5, of which is mentioned there in para 74 and various other provisions are made. My Lords, give me a moment. Para 120, My Lord. 

JUSTICE SANJAY KISHAN KAUL: Of the judgment? RAJEEV DHAVAN: PDF 364. Why was this, My Lord, promise to the people honoured, despite a provision of the Constitution? And this is explained by the majority at para 126, 409. 



RAJEEV DHAVAN: Para 120. What was the rationale of respecting what the people of Sikkim wanted, despite the provision in this Constitution, one person, one vote and no vote on account of religion? “The rationale and constitutionality of Clause F and other provisions of the electoral laws, impugned in these petitions, are sought to be justified by the Respondents, on grounds that a perfect arithmetical equality or value of votes is not constitutionally mandated, imperative of democracy. And second, even if the impugned provisions make a departure from tolerance limits and Constitutional… and the Constitutional permissible limits, the discriminations arise, are justifiable on the basis of the historical conditions peculiar to and characteristic of the evolution of Sikkim's political institutions”. And the characteristic of the evolution of Sikkim's political Institutions. Therefore, Your Lordship has been taken into the discussions that were held as far as J&K was concerned. And why it is important, My Lord, particularly as I indicated, the merger agreement, which deals with internal sovereignty, unlike the Instrument of Accession which deals with external sovereignty. Then My Lord, the last four lines are important. “Article 120, 371F and the electoral laws in relation to Sikkim, seek to provide, it is urged, is to maintain this balance in the peculiar historical setting of the development of Sikkim and its political institutions”. Sikkim is the only other example we have, other than Kashmir, where it was entered into. And therefore, you take into account, all the antecedent discussions, and see if they make out a case, whether for 370 or otherwise. Now My Lords, I'll take Your Lordships to Schedule 5. I'll skip My Lords the.… Schedule My Lord, deals with the administration of Schedule Areas and Scheduled Tribes. Some of us are not happy with the Constitution Bench decision in Chebrolu My Lord, on how you apply Legislative Powers. But My Lord, there's a Tribal Advisory Council. So, when the Governor My Lord, applies laws under 5, Subclause 2, Subclause says no regulation under this paragraph unless the Governor making the regulation as in the case where there is a Tribal Advisory Council consulted such Council. 


RAJEEV DHAVAN: My Lord, this is in sub-para My Lord. 5(5). 

CHIEF JUSTICE DY CHANDRACHUD: Consultation of the Tribes Advisory Council. 

RAJEEV DHAVAN: Now, here, My Lord, even if there is power you must consult the Tribal Advisory Council. Then My Lord, I come to the most important article on Schedule on Autonomy, Schedule 5... uh 6. My Lord, my learned friend rightly points out that Schedule ,   My Lord deals with Assam, Meghalaya, Tripura and Mizoram excludes them and then this My Lord, is applied in Schedule 6. Now, My Lord, we come to the question of autonomy of the Northeast My Lord. Without all these autonomies My Lord, India would have collapsed by now. Because unless all this was given My Lord, to the States in question in the light of antecedent discussions My Lord, this quest for uniformity across the board which 272 and 273 seem to countenance My Lord, is not the heart and soul of the Indian Constitution. It is autonomy... Autonomous, autonomy within federations. Special Provisions in relation to people. Take that away, My Lord, we don't need such a big Constitution. And all the antecedent discussions My Lord, become part of these autonomies and special provisions. We can't wish them away, My Lord and say they are just history. Okay so far. Now My Lord kindly come to Schedule 6. There is My Lord, apart from the ones that are dealt in Schedule 5, as my learned friend pointed out this applies to tribal areas in Assam, Meghalaya, Tripura and Mizoram. And sub-para 1, My Lord, is headed Autonomous Districts and Autonomous Regions. They have an in-between status between Panchayats, My Lord and Union Territories. Now My Lord, under Article 1, Subclause 3, the Governor, no doubt with the advice of his Council of Ministers, wherever we read Governor, it is rarely in his personal capacity, apart from their penalty cases from which Your Lordships have ruled. The Governor may by public notification, include any area in any of the parts of the said table, exclude any area in any of the parts of the said table, create a new autonomous district, increase the area of any autonomous district, diminish the area of any autonomous district, unite two or more autonomous district, or parts thereof, first to form an autonomous district, alter the name of any autonomous district, define the body, boundaries of any autonomous district. This is a little akin to Article 3. And this is where the entire politics of the Northeast and the provisions relating to the Northeast arise. Gorkhas say we want Gorkha land, somebody says I want Bodoland. All this emanates from Schedule 5, 6, and the concept of autonomy. Then at sub-para 2, there shall be a District Council for each autonomous district consisting of not so many members shall of which four will be nominated by the Governor. And then My Lord, there shall be a separate Regional Council for each area constituted an autonomous region under sub-para of each District and Regional Council shall be a body, corporate law, with its seal, etc. What is important My Lord is also, what do these autonomous Councils do? Kindly come to paragraph 3. Powers of the District and Regional Councils to make laws... Has Your Lordships got it? To each of these is given a lawmaking power with, of course some limits, without which we might lose the Northeast. It is this democratization of power that has enabled us to make special concessions where they are necessary, given the antecedent history as I've explained in the case of Sikkim. Then My Lord the Regional Councils, District Councils   and Regional Councils to make laws. And then there are series....Now, there are two interesting provisions, which Your Lordships will probably find in the footnote to the Sixth Schedule. That is an Article A... sub-para A, wasn't without My Lord, protest and accommodation. Has Your Lordship got A somewhere in that? Probably in the footnote. 


RAJEEV DHAVAN: Additional powers of North Cachar Hills Autonomous Council and Karbi Anglong Autonomous Council to make laws. And this includes subject to the provisions, of course of, list and 52. Interesting part is, my learned friend points out in 371(3)(a)(b), communication My Lord is given to the... It says, "to the [UNCLEAR] as is to say, roads, bridges, ferries, and other means of communication not specified in List of Schedule 7". Now, My Lord, come to 3(b). Your Lordships are familiar with the Bodoland agitation, I needn't explore that further, although we have material on it. 3(b) says, “Additional powers of the Bodoland Territorial Council to make laws”, and then lists on what they can make laws. Paragraph 4, My Lord. I'm almost done, but not with this diversification point My Lord. Now, come to paragraph - Administration of Justice in Autonomous Districts and Autonomous Regions. Which goes on to then say, “May appoint suitable persons to be members of such village councils and presiding officers of such courts”. It's a little lower down, in that paragraph. 

CHIEF JUSTICE DY CHANDRACHUD: Which is the next clause? Para 4, you were saying? 

RAJEEV DHAVAN: I was taking Your Lordships to para 4, My Lords. 

CHIEF JUSTICE DY CHANDRACHUD: That’s the administration of justice? 

RAJEEV DHAVAN: That's the administration of justice. Of course, sub-para says, “The High Court shall exercise jurisdiction over the suits and cases to which provisions of sub-para of this paragraph apply, as the Governor may, for time to time, specify”. Even as regards the High Court. 


RAJEEV DHAVAN: Then, My Lord, 121. Sorry, paragraph and 12A. 12A and 12AA, I want to point out how in the state of Meghalaya and Tripura, My Lord, autonomous districts have   laws which are subject to what is equivalent to the 254 Procedure. And, Your Lordships will see in 12A, “Notwithstanding anything in the Constitution”. Likewise, 12AA, “Notwithstanding anything in the Constitution”. Then, 12B, from Mizoram, “Notwithstanding anything in this Constitution.” It limits even the powers of the legislature. My Lord, the reason why I've cited all this My Lord, is because of the diversity this Constitution My Lord, makes in Federalism and Democracy. A diversity that is to be treasured not wished away in the name of uniformity. There are no dead horses to be flogged. 

JUSTICE SANJAY KISHAN KAUL: Diversity, I mean, you are right. It's possibly more diverse than the whole of Europe. combined together. 

RAJEEV DHAVAN: Europe, America, or Sub Saharan Africa, take parts of the South Seas this is.... and so is Jammu and Kashmir My Lords, with its history. It has its own diversities. Diversity is necessitated because of the absence of the merger agreement My Lord. So what I'm going to call this, although in my submission, I've called these asymmetrical provisions, these are, in fact, multi-symmetrical provisions. This makes our Constitution unlike any other in the world. Simple examples of asymmetry of Canada, you will have French in one area, and English, in the other or Belgium. The three language formula. Those are, asymmetrical. The Indian Constitution is multi-symmetrical, of which J&K is a part for its reasons. I'll now come My Lords a lot straight away to 370. Much of it has been argued, so I don't have to take Your Lordships to all of it, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: May be after lunch that.. 

RAJEEV DHAVAN: I'm sorry I've taken some time My Lord, because as soon as Your Lordship asks for a list, as you ask, Mr. Zaffar Shah, Your Lordship said you've done with point now what you come to another one? I have a list which I'll give to Your Lordships after lunch. 

CHIEF JUSTICE DY CHANDRACHUD: Dr. Dhavan, how long would you now take after lunch? So that the next question... 

RAJEEV DHAVAN: An hour or so if possible My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: Could we possibly curtail it to half an hour after lunch. Half an hour after lunch can be concluded maybe? 

RAJEEV DHAVAN: May not be enough. Just give me that...   

CHIEF JUSTICE DY CHANDRACHUD: Alright 45 minutes. 2:45 we'll move on to the next... 

RAJEEV DHAVAN: Usually you arrive late My Lord, that knocks off ten minutes. 

CHIEF JUSTICE DY CHANDRACHUD: That's why I said 45 minutes. We didn't say 02:45. We'll be here at 02:00. 

RAJEEV DHAVAN: Your Lordship, has not eaten into my time... 

CHIEF JUSTICE DY CHANDRACHUD: Absolutely not, 2:55. 

RAJEEV DHAVAN: No, My Lord. There's Mr. Dinesh Dwivedi's time, My Lord. He took my time on technical incompetence as I did on libraries. All that has to be adjusted. I'll do my best, My Lord, I'll do my best because what I've done now, My Lord, as I put summary at the end, which I'll hand over like Mr. Zaffar Shah did. But what I can't resist, My Lord, on the diversity argument a passage from TMA Pai, which is not in Your Lordships' compilation. So I've made copies. May I hand them over? My Lord, I'll take Your Lordships straight away to para 157, which is on page 586 and just below placitum D. This is the most evocative understanding of the diversity of our Constitution apart from the two Delhi judgments, My Lord, which went into it in depth. Now just below placitum D, My Lord, may I just read? 


RAJEEV DHAVAN: 'All the people of India are not alike. And that is why preferential treatment to a special section of society is not frowned upon. Article is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instil in them a sense of security and confidence even though the minorities cannot per se be regarded as weaker sections or underprivileged sections. Now, 158 is the evocative passage that I want to read. The billion population of India, consisting of six main ethnic groups, 52 major tribes, six major religions, 6,400 castes and subcastes major languages and 1600 minor languages and dialects. The essence of secularism can best be depicted if a relief map of India is made in mosaic, where the aforesaid billion people are the small pieces of marble that go into the making of the map. Each person, whatever his/her language, caste religion, has his or her individual identity which has to be preserved. So, that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces   of marble in the form of human beings which may be individually be dissimilar to each other when placed together in a systematic manner, produced the beautiful map ofIndia. Each piece, like a citizen of India, plays an important part in the making of the whole. The variations of the colour as well as the different shades of the same colour in a map are the result of these small pieces of different shades and colours. But even when one small piece of marble is removed, the whole map of India would be scarred and the beauty lost...' Just over the page. 'Each of the people of India has an important place in the formation of a nation. Each piece has to retain its colour. By itself. It may be an insignificant stone, but when placed in a proper manner, going into the making of a full picture of India, in all its different colours and hues. A citizen of India stands in a similar position. The Constitution recognizes the differences amongst the people of India but it gives equal importance to each of them, their differences notwithstanding. For only then, there can there be a unified, secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of the nation, the Constitution, while maintaining inter alia the basic principles of equality contain adequate provisions that ensure the preservation of these different pieces.' I wanted to read this, My Lord. It's a very evocative passage My Lord. Now, My Lord... 


RAJEEV DHAVAN: Your Lordship will be dealing with pieces of marble My Lord. How you deal with it My Lord, will come later. Now My Lord, may I invite My Lords to my submissions? 


RAJEEV DHAVAN: Which is in Volume 1, page 195, PDF 195. I'm going to go at super speed mode because there's a guillotine on my head, very sharp one I might add. Now, My Lord, I'll just take Your Lordship very quickly. Come to the 198, Your Lord, page. The external, Your Lordship's page. Skip all that and come to page 200, which is... 

CHIEF JUSTICE DY CHANDRACHUD: Which, which, which file are you...? 

RAJEEV DHAVAN: Volume of the written submissions My Lord. [INAUDIBLE]   

RAJEEV DHAVAN: I'm sorry, My Lord. 


RAJEEV DHAVAN: Page 195, where it starts My Lord. 

JUSTICE BR GAVAI: 195 to 288? RAJEEV DHAVAN: There is an index, which I won't trouble Your Lordships with, My Lord. 


RAJEEV DHAVAN: But I think...Volume 1. JUSTICE BR GAVAI: Volume 1. 

RAJEEV DHAVAN: Volume 2, was Mr. Sibal's submission which came My Lords, a few days late. JUSTICE BR GAVAI: Volume pe hai. 

RAJEEV DHAVAN: [INAUDIBLE] 200. Your Lordships have it now? 



RAJEEV DHAVAN: I'm taking Your Lordships on PDF 200 in para 1.5, because all the other documents have been read, I'm not going to repeat them. The history has been shown to Your Lordships. But I made a point, My Lord, about why the merger agreement was important and why 370, in one sense represents the standstill and merger agreements. I'm going to read this passage My Lord, from Prem Nath Kaul in para 1.5. Has Your Lordship got it? 


RAJEEV DHAVAN: Referring to the past My Lord. 'Thus, there can be no doubt that this Act of 1939 marked the second step taken by the Highness in associating his subjects with the   administration of the State. It did not constitute even a partial surrender of His Highness of his sovereign rights in favour of the Praja Sabha. Even after the instrument of accession. He had not given up his rights that Your Lordship will come over the page. I can get the PDF numbers to this if Your Lordship wants My Lord, but it's... 


RAJEEV DHAVAN: Now My Lords dealing with after the Instrument of Accession. 

CHIEF JUSTICE DY CHANDRACHUD: How many judges for Prem Nath Kaul? 

RAJEEV DHAVAN: Yes judges. These are all Constitution Benches. Now My Lord may I take Your Lordships to 1.7. 

CHIEF JUSTICE DY CHANDRACHUD: This is in relationship in regard to the relationship of the Maharaja with the Praja Sabha. 

RAJEEV DHAVAN: This is Praja Sabha. I'm now building on that My Lord. 


RAJEEV DHAVAN: Therefore, My Lord, what actually 370 represents is two powerful Democratic movements. One in the people of India. My Lord, and the other My Lord in the people of Kashmir, demanding of their Maharaja, which is eventually what he did. He gave a Praja Sabha. He wanted a National Assembly but he didn't agree to a Constituent Assembly which came later My Lord. Now My Lord 1.7. Maharaja Hari Singh continued to be the absolute monarch of the State. And in the eyes of international law, he might conceivably have claimed the status of a sovereign and independent state because all the Instrument of Accession did is put in these four conditions and fed externally. That's why I made the distinction between external sovereignty and internal sovereignty. 

JUSTICE SANJIV KHANNA: This is with reference to date as 15th August 1947 not with reference to the... 

RAJEEV DHAVAN: I'm coming out to the Instrument of Accession. 


RAJEEV DHAVAN: That's right My Lord. That's the Instrument of Accession. Immediately after that comes 1.10. Thus, by the Instrument of Accession, the Maharaja took the very important step of recognizing the fact that his State was a part of the Dominion of India. That's all that the Instrument of Accession represented. We can't say at that point that he had surrendered all his sovereignty. He had not My Lord. That process began partly politically because of the political movement and partly because of 370 because that's why we see a coming together of the Constituent Assembly, the Governor, the President, all that comes together because there was no merger or standstill agreement. Now I won't read the proclamation of the Maharaja of 1948 where he talks about his Council of ministers. I'll just come straight away to what Sardar Patel said over the page in 1.13. 'In view of the special problems with which the Government of Kashmir is faced, we have made a special provision for the continuance of the constitutional relationship of the State on the existing basis.' And it's very important to understand what 370 really represented and what the Instrument of Accession really did. It bound itself to India. But the rest of the process of democratization, of adjustments, of sharing of power was never done in the case of Jammu and Kashmir. Even in the White Paper on the States there is one paragraph it says, we are not dealing with Jammu and Kashmir. Then Your Lordships will just come to 1.21. On the 12th of November, pursuant to a resolution of the Constituent Assembly resolving to end hereditary rulership in the state, Yuvraj Karan Singh was elected to the post of so and so and dynastic rule in J&K came to an end. Now, Your Lordships have already been shown how C.O. 48 emanated from the Assembly of Jammu and Kashmir Constituent Assembly and became part of our Constitution. This part, My Lord, Your Lordships, I needn't give you cross references. Need I My Lord? CHIEF 


RAJEEV DHAVAN: Now, My Lord, I'll skip the rest. 1.24. My Lord, I've already read, the second proviso to Article 3(2). 


RAJEEV DHAVAN: So, I won't read it again, My Lord, but I come, My Lord, to page 11, 1.30. Before that, My Lord, just one thing...   

CHIEF JUSTICE DY CHANDRACHUD: Dr. Dhavan, just one thing. Just... more for your juniors than for you. The dates which you have given in the written submissions if anything is missing in Mr. Sibal's list of dates, perhaps it might be good if you have it in one place. Likewise, when the Respondents begin, it would be very nice if we had one consolidated list of dates. So, that we don't have to, you know, sort of then... 

RAJEEV DHAVAN: That's right. 

CHIEF JUSTICE DY CHANDRACHUD: ... shuffle between two or three different... 

TUSHAR MEHTA: Showing Mr. Sibal's list of dates in a separate font or separate colour or something. 

CHIEF JUSTICE DY CHANDRACHUD: And something which you are adding because I think we were reading Mr. Sibal's list of dates. There's no innuendo in any of the lists. So, it's just straight the dates. So, if you feel that there's something missed out, then you can make track changes in that list of dates, so it will be a little easier for us, ultimately after the... 

RAJEEV DHAVAN: My Lord, what I'm endeavouring to do, My Lord, is to add substance to the list of dates. 

CHIEF JUSTICE DY CHANDRACHUD: Alright, fair enough. 

RAJEEV DHAVAN: This is what I'm trying to do. 

CHIEF JUSTICE DY CHANDRACHUD: Fair enough, then there's... 

RAJEEV DHAVAN: Not just reading it as a list of dates... 


RAJEEV DHAVAN: Now 1.25, My Lord. 1.25, My Lord, on the October 1956, the Constitution of Jammu and Kashmir was adopted by the J&K Assembly. All the details are given there My Lord? 


RAJEEV DHAVAN: Now, My Lord, this singular aspect of Indian federalism to have a separate Constitution for a state. For others you gave autonomous regions you bound them together, you expanded it. But this... can the J&K Constitution of 1957 be wished away by an amendment to C.O. 272, 273 and Article 3? It simply can't My Lord. So, one of the big losses is where has it... It's like Macbeth, "the thane of Fife, he had a wife, where is she now?" J&K had a Constitution. Where is it now? Has it been subsumed by 273? And when I go to 273, My Lord, I'll deal with that. Now, My Lord, I come to asymmetrical federalism at 1.30. Kindly change that to multi-symmetrical as I have argued, My Lord. Now, My Lord, all those references are there but... and of course, I've given Your Lordships a list which I don't want to... which is not repeated here. So, I'll come straight away to 1.33. The importance of the Delhi decisions, My Lord. I'll take up the second decision first. The Chief Justice, after reviewing the asymmetrical provisions described above in State of Delhi so and so, in 2023, held that regard must be had to the principles of asymmetrical federalism embodied in the Indian Constitution, and that constitutional principle must be given substantive weight to this underlying principle. I'll read that paragraph. Actually, I should read it at the end, but I'll read it now, My Lord. 'This variance in the constitutional treatment of union territories, as well as the absence of a homogeneous class, is not unique only to union territories. The Constitution is replete with instances of special arrangements being made to accommodate the specific regional needs of state in specific areas. Therefore, NCTD is not the first territory which has received special treatment through a constitutional provision, but it is another example in line with the practice of the Constitution and visiting arrangements which treat federal units differently from each other to account for their specific circumstances. For instance, Article 371 of the Constitution contains special provisions for certain area of various states, as well as the entirety of some states. The marginal notes to these Articles, composed of rubric of 371, provide an overview of a number of states arrangements in the nature of asymmetrical federalism, are made in the spirit of accommodating the different and specific requirements of regions across the nation.' The next My Lord, line, para 41. I'm not taking Your Lordships to the PDFs because this is enough of what I want to refer to. 'The design of our Constitution is such that it accommodates the interests of different regions while providing a larger constitutional umbrella to different states and union territories. It preserves the local aspirations of different regions. Unity in diversity is not only used in common parlance, but is also embedded in our Constitutional structure. Our interpretation of the Constitution must give substantive weight to the underlying principles.' This is My Lord, how we approach the Constitution, just has been done otherwise also. Now My Lord, I add to this My Lord, the huge number of precedents of what is called Transformative Constitution. 1.36. 'The ultimate goal,' that's from Navtej Singh Johar, 'of our magnificent Constitution is to make right the upheaval which existed in Indian society   before the adopting of the Constitution. The Court in so and so observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval hierarchical society into a modern, egalitarian democracy and its provisions can only be comprehended only by a spacious social science approach, not a pedantic traditional legalism. The whole idea of having a Constitution is to guide the nation towards the resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better. And this objective is for the fundamental pillar of Transformative Constitutions.' Then My Lord, the Chief Justice, as he then was in the 2019 decision My Lord, of the Delhi decision. 'The Constitution is a transformative document. The realization of this transformative potential rests ultimately in the ability to breed life and meaning into its abstract concepts. For above all, the Constitution was not intended by its draft persons,' was intended, sorry...' by its draft persons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression and discrimination against the marginalized. As our Constitutional jurisprudence has evolved, the realization of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantial potential.' My Lords, I cite this for a reason, My Lord. When this hearing began, My Lord, it appeared to me that we were reading the Constitution as if it was a statute. For a long time My Lord, we were going to this word and that word, and this proviso and that proviso My Lord. That is not how Constitutions were meant to be read or to be transformed. Then My Lord, if Your Lordship will come to this question 1.41, I won't read it My Lord, because Constitutional morality is also mentioned in various judgments of, My Lord, the Chief Justice, when you refer to Pratap Bhanu Mehta's, contribution, etc My Lord. Now My Lords, State of NCT versus Union of India. If the moral values of our Constitution were not held, upheld at every stage, the text of the Constitution may not be enough to protect its democratic values. In order to truly understand what Constitutional morality reflects, it is to answer, necessary to answer what is that Constitution trying to say, and to identify the broadest possible range to fix the meaning of the text. Constitutional morality does not mean an allegiance to the substantive provisions and principles of the Constitution. It signifies a Constitutional culture, which each individual in the democracy must imbibe. Pratap Bhanu Mehta identifies certain features of constitutional morality, chief amongst them being liberal values which govern the making of India's Constitution and created expectations from the polity. One of the essential features of constitutional morality thus is the ability and commitment to arrive at decisions on important issues consensually. It requires despite all differences, we are part of a deliberative exercise. It is going to be my submission, that this deliberative exercise has not taken place with the changes of the J&K Constitution.   Now, Mr. Sibal had a number of questions that were asked in Parliament till the last day. Your Lordship has seen that. Are you changing 370? The answer was no, no. And suddenly out of the blue we enter into 4th August, 5th August. This consultation of concurrence is fundamental to the manner in which we read constitutions, and how each provision comes into place. Then My Lord, I will just read the NCT decision. That's the earlier one. 'While interpreting the provisions of the Constitution, the safe and most sound approach for the Constitutional Court to adopt this is to read the words of the Constitution in the light of the spirit of the Constitution, so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. This Court must adopt an interpretation which glorifies the democratic spirit of the Constitution. The Constitution has mandated a federal balance wherein the independence of certain required degree is assured to the State Governments. As opposed to centralism a balanced federal structure mandates that the Union does not use up all the powers and the states enjoy freedom without any unsolicited interference from the central government with respect to matters while exclusively falling in its domain.' So this is the approach towards constitution to multi-symmetric federalism. Now I will take Your Lordship straight away to 370. I think at some stage a question fell from Your Lordships, weren't any protests made before that My Lord. I just want to take Your Lordships to 2.15 at page 221, external. My Lord, there is a literature that could fill a library on the protests over 370 and then the State Autonomy Committee read this out and of course, it goes to a slightly further extreme. But this is the constitutional understanding which is not too dissimilar with other federations. I won't read it. I just wanted pointed it out to Your Lordships. Once again, My Lord, I've reproduced here the debates. I'm not going to read those out. I understand the speech has been read out to Your Lordships two or three times. It's just that on page 224, whatever I've highlighted in bold, 'again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the state to decide for themselves whether they will remain with the Republic or to wish to go out of it. We are also committed to ascertaining the will of the people by means of plebiscite, provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the Constitution of the State, as well as the sphere of union jurisdiction over the State.' This is the commitment My Lord that lies behind Article 370. Then My Lord, the bottom of the page till a Constituent Assembly comes into being only an interim arrangement is possible, not an arrangement which could at once be brought in line with the arrangement that exists with other States. Now, if you remember the viewpoints I've   38 mentioned, it's an inevitable conclusion that at the present, we could establish an interim system, is an attempt to establish such a system. Then, My Lord, I will skip other passages that have been read out to Your Lordships. The J&K Constituent Assembly, My Lord, 11.21. I am coming to page, external page 217... sorry 217... 227... why is it... [NO AUDIO] ... Sheikh Abdullah's speech has been read, but this is their understanding in the absence of a merger agreement. As I indicated earlier, My Lord, the 370 is in the nature of establishing the relationships. And in that portion that I have highlighted, 'this arrangement involved a division of sovereignty, which is the normal feature of federation beyond the powers transferred it to... by it to the dominion, the State enjoyed complete residuary.... uh sovereignty, which is what is reflected in the J&K Constitution.' So, My Lord the Instrument of Accession says List 1, List 3, they have their place but we have all the residuary powers. Therefore, control over this state list My Lord as far as they are concerned. Then, My Lord, when the Draft Constitution, My Lord, was introduced, I am coming to, My Lord, 11.25, at 231 and 232. Just at 232, just above 11.26. 'By this, I mean, that all these special constitutional privileges which our State enjoyed prior to 1953 are enjoyed by her even today.'In other words, the state enjoys the same kind of autonomy which it stood prior to 1953. Therefore, to say the Instrument of Accession wiped things out, My Lord, is simply not correct. Now, My Lord, 11.28, I've already read it out to Your Lordships, My Lord, because it imposes a limit. One question that was put, can 370 be amended or not amended permanently? Mr. Sibal said that's not before Your Lordship, but at any rate, it may not have been a sufficient answer. There is a proviso, My Lord, that was added by C.O. 48. C.O 48 is a foundational document, My Lord and that is at 11.28. 'Provided further, that no such amendment shall have the effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under Clause of 370.' In other words, after you go through the amendment process.... [NO AUDIO] 


RAJEEV DHAVAN: Now My Lords, can this proviso...What has happened is My Lord, when the microphone was on, somethings emerged there which I didn't want to emerge because I was talking to my colleagues. I hope they will be excised. 

TUSHAR MEHTA: That's what. I went to him and told him that your whispers are also being recorded.   39 

RAJEEV DHAVAN: My Lord, we will deal with all that My Lord, with a pinch of salt My Lord. 

JUSTICE SANJIV KHANNA: It's quite accurate. 

RAJEEV DHAVAN: I shudder to think, My Lord, if this was the case when we were arguing Babri Masjid, what would come in the transcription. Such a huge amount of exchange took place My Lord. Now My Lords, therefore My Lord, how do you amend with 370? You amend it through the 368 process. But, there was in C.O.48, a provision that you will then go to 370 and follow the procedure in 371. And that's very important My Lord. Your Lordship asked, what was lost from the 4th of August? This is something that was lost and they didn't even use the amendment power which is the only power available to them My Lord, to delete 370. Not the circuitous process that they used in 272 and 273. Now My Lords, on 235, 11.32 onwards. My Lord, Your Lordships conferred. That took time, as well. Happy though I am, that Your Lordships did [UNCLEAR]. My Lord, I'm going to be super quick. Just give me that indulgence. Now, My Lord, here are all the cases. Your Lordship needs to go through Prem Nath Kaul, which I've summarized in 11.33, because it actually explains what the situation was after 1950, when there was an Instrument of Accession, but no merger agreement. On page 236, my submission from Prem Nath Kaul, is application of 370 of the Constitution to the State of JK, also does not impact the plenary parts of the Maharaja. The form of the Constitution to be applied to JK was a matter left to be determined by the State Constituent Assembly and until such decision was taken the constitutional relationship between Union and the States was governed by the terms of the IoA. So the internal relationship had to still be determined under 370. Now My Lords an argument has been made on the basis of Puran and Lakhanpal etc. What is the meaning of modification? And they say it's very wide. But My Lord, Your Lordship has to read it in context. And that is when the matter was not referred to the seven Judge Bench. Your Lordship took the view that Please read these decisions in context. Don't read them outside the context. Now My Lord I'll come to 370. What I've done in the meanwhile, My Lord I have done a short page, page and a half My Lord but I'm not giving it now, because Your Lordship may introduce the guillotine earlier. Now My Lord kindly come to 370. 

CHIEF JUSTICE DY CHANDRACHUD: Does that begin at 239. Dr. Dhavan? 

RAJEEV DHAVAN: Sorry My Lord?  

CHIEF JUSTICE DY CHANDRACHUD: Oh sorry. I thought you are referring to your submissions. 

RAJEEV DHAVAN: I'm not going to repeat what's in the submission. I'm going to just stress what is not in the submission, that I've stressed orally. 


RAJEEV DHAVAN: Now My Lord, we need not be troubled by temporary provisions at all. That has been the great call. This is a temporary provision. It's temporary to the extent that 370 indicates. Therefore My Lords in my personal view 370 Sub-clause and 3, which deal with the Constituent Assembly My Lord has become otiose. They have invoked this My Lord in C.O. 273. All of a sudden, a provision which is constitutionally beyond the extension of the Assembly has suddenly been used in C.O. 273. That and I think it's C.O.44, is it? 44 is the only time My Lord 370 Sub-clause (3) was used. In 1952 and now in the year 2019. So My Lord what remains My Lord after the Constituent Assembly? In our submission, what remains is 370 Sub-clause (1). Not to be read as a statute but to be read in context. And what are the provisions here? I 'm not going to read them out. It's been read ad nauseam My Lord. It says, follow the Instrumental of Accession as far as consultation is concerned. For rest there must be is concurrence and the same is true My Lord of (d), 371(d). Those provisions are governed by the two provisos, which then talk of consultation and concurrence again. The reason why I said, My Lord, that 370 could not be tinkered with during President's Rule is because there is a mandatory requirement, as it was in Article 3, about consultation and concurrence. You can't say we wiped out the Constitution, we wiped out all the treaties so that 370 is gone. Amend it. Go through that particular process. But by the circuitous route, My Lord, mandatory provisions which survive in 370 Sub-Clause 1, are violated and they can't be done under President's Rule for a very simple reason because it says the State Government, My Lord, consultation with the Government of the State is declared by the President to correspond in such matters, other matters in such list with the concurrence of the Government of the State. Of course, Provision in this article shall apply in relation to the State. And then My Lord, once again in D. Now My Lord, can we wish this away by some circuitous route? 370 by far from being a relic, My Lord is in fact what is there in the merger of agreement read with the Instrument of Accession. In fact, My Lord, I say that this is part and parcel of the multiple federalism that exists. You can't use these provisions, My Lord without subjecting them to the discipline of Article 370. And that's what Damnoo My Lord, Damnoo Your Lordships will get the... also says you can't do it. So, My Lord, I ask to come back to my broader proposition   41 that while President's Rule was in operation, you could not use Article 3, because you can't substitute one legislature for another. And you can't, My Lord, do away with 370 for a very simple reason that mandatory provisions of the Constitution do not say that Parliament can do this, and the President can do this.It says it must be done by the Government of J&K, which is not, My Lord the [UNCLEAR] Government of J&K but in 272, it says with the Council of Ministers. And that is fundamental to the operation of any government. So, you don't do it with the Council of Ministers. Can you do it simply, My Lord, the way it was introduced in Parliament by Mr. Amit Shah? That you simply do it by saying, we're using 370 and this is how it's done. In President's Rule, My Lord, it cannot be done. There is no tearing hurry, My Lord, in our Constitution to say that the amendment power can be used and abused whenever you wanted to. My Lord I want to show quickly two decisions, My Lord, on why the merger is separated from... It is in Volume Six, My Lord, of the cases and the case is Promod Chandra Deb it's at page 1587... and I am on PDF 144. The steps that were required and I'm saying that this in fact, in a sense, My Lord, the merger agreement is really what 370 is. Now, My Lords... 


RAJEEV DHAVAN: I'll take Your Lordships to page 1596. 

JUSTICE B.R. GAVAI: Dr. Dhavan which volume? 

RAJEEV DHAVAN: Sorry, My Lord, Volume 6. Cases Volume 6,Item Number 10, page 1587 PDF. It starts at 135, and I'm taking Your Lordships to 1596 at 144. This is in para on page 1596 My Lord. The bottom of the page My Lord. This was, My Lord, some... 

CHIEF JUSTICE DY CHANDRACHUD: Which PDF page will that be actually? 

RAJEEV DHAVAN: 144. It says of the Instrument of Accession, My Lord, in the last four, five lines of page 1596. Does Your Lordship have it? This accession that is Instrument of Accession did not affect the continuance of sovereignty of the rulers entering into the agreement save as provided by or under the Instrument of Accession. So there was no... external sovereignty was lost, but internal sovereignty remained where it was. And then, going over the page, at 1597, four lines from the top, 'The second step was the signing of what has been termed "the standstill agreement", the form of which appears in the white paper. And a few, the acceding states signed the standstill agreement which provided for the continuance   42 and time of all subsisting agreements and administrative arrangements in the matters of common concern between the states and the Dominion of India. The first phase of the process of integration of the Indian states into the Indian Dominion was the accession of states as aforesaid. The second phase followed on the merger of the states into the Dominion of India as a result of the merger agreement.' Now there was no merger agreement My Lord. So where was the merger agreement, My Lord? Either we continue the sovereignty as was said in Prem Nath Kaul or we say that this is the essential step by which internal sovereignty and internal arrangements are worked out. Then it says, a little further down, about four lines below that, "as a result of the merger agreement signed by the rulers of these states on or after 14th December but before the 1st of January '48, the Dominion of India was vested with sovereign powers, and the ex-rulers were left only with their private property and their annual privy purses." This was the effect of the merger agreement. And it's all there in the white paper of the states, which I don't want to go into. So where was this lost, this arrangement of internal sovereignty worked out? In Article 370 My Lord. The only two other States were Hyderabad and Junagadh, they stand on a footing of their own. And that is why My Lord, I emphasize that 370 is the repository of the merger agreement, read with the Instrument of Accession. In this very volume I want to refer to one other, which is the first privy purse's case. It starts at... 


RAJEEV DHAVAN: It starts at PDF 390 and I want to take Your Lordships straightaway.... Of course the amendment came later, in taking the privy purses amendment, power away. So, My Lord, I'll take, we're still on Volume 6, and I'm taking Your Lordship to PDF 457. Just one small paragraph. Paragraph 111, on page 1909, PDF 457. 


RAJEEV DHAVAN: May I read out My Lord? Para 111. 


RAJEEV DHAVAN: The plea raised by the Union must be considered in the light of these developments. The political developments and the history of negotiations and agreements were certainly not intended to be an exercise in futility. The argument that the parties to the instruments were entering into a solemn undertaking, intended the arrangements to be temporary and likely to be set at not by the unilateral act of the Union ofIndia must be rejected. This is building on Mr. Sibal's argument My Lord. A unilateral act My Lord. The assumption   43 you don't take into account history. So the argument based by the Union that this is an exercise in futility going back. The response is, 'the argument that the parties to the Instruments were entering into solemn undertaking and intending the arrangements to be temporary and liable to be set at not by the unilateral act of the Union of India must be rejected.' Now I have one submission and I will hand over and go through it. One of my arguments My Lord, whether it is run by transformational morality , because of the antecedents, or whether it's done by basic structure or which transformational morality, in my view, is a part. That 370 to that extent is part of the basic structure. As a substitute for the merger agreement, as an interpretation My Lord... 356 My Lord. I'm coming back to Volume of the submissions. The PDF number is 267. I put in a table to show how President's rule has been exercised in Section 92 has been exercised. My Lord it is my respectful submission they cannot be exercised in tandem. As it was My Lord, Governor's Rule had taken place and now President's Rule was imposed. On that My Lord if Your Lordships will see, I've given all the cases that I want to cite. I won't bother Your Lordships with them, except page 276, which is PDF 276. 4.25. 

JUSTICE SANJIV KHANNA: I'm sorry, Mr. Dhavan, what are you referring to? 

RAJEEV DHAVAN: My Lord my submissions. 

JUSTICE SANJIV KHANNA: Your written submissions. 

RAJEEV DHAVAN: I am now winding up. 


RAJEEV DHAVAN: Mercifully. 276. An important aspect, Bommai, of course, is there. You can't remember that in Bommai My Lord it was just the action of President's. was not involved with the same extent, but I'm relying on 14. 4.25 Rameshwar Prasad's case. Has Hour Lordship got it? 


RAJEEV DHAVAN: It is open to the Court an exercise of judicial review to examine the question whether the Governor's report is based on relevant material or not, whether it is made bonafide or not, and whether the facts have been duly verified or not. This is what Your Lordships have indicated on the extent of judicial review. Now what has happened in this case and Your Lordships, as in Nagaraj, can lay down conditionalities for the exercise of 356. All   44 the documents must be made publicly available and placed before Parliament. In this case, even the Governor's Report was not placed before Parliament or before the Court. So, when Your Lordships, My Lords, say 356 is justice-able, what are the contours of this justiciability? A full, frank and complete disclosure to Parliament and to the people. Just to say that this is... I've received this message, there it is, and not even to place the report. That is why I say, My Lord, the entire exercise of President's Rule needs to be examined by Your Lordships in this case. Others will argue, My Lord, more on this when their turn comes. Now, My Lord, I am going to give Your Lordships, my summary, My Lord. Because this, My Lord, is the substance of what I've added to my written submissions. May I read it out My Lord? 


RAJEEV DHAVAN: India has a multi-symmetrical Constitution to be interpreted as transformational in nature. It's unique and that is why Your Lordship insists on these transformations despite the many amendments, despite the length. This is a multi16 symmetrical Constitution. My second submission, the Instrument of Accession represents, subject to conditions, the loss of external sovereignty. However, standstill and merger agreements finalizes the internal sovereignty arrangement. And that, My Lord, is to be... internal sovereignty arrangements is to be found in 370. 370, is the result of a binding historical agreement. The Instrument of Accession deals inter alia with conditions of external sovereignty. But in the absence of standstill and merger agreements 370 represents a substituted constitutionally consecrated merger agreement for finalizing internal and external sovereignty, resulting in two interactive, sui generis constitutions unlike any other States. It is unique and part of the basic structure in terms of democracy and federalism. For basic structure, My Lord, read transformational constitutionalism. 370(1) alone survives, and 370 (2) and (3) have exhausted their invocation. Why is this important, My Lord? Because, My Lord, after 1954 the first time 370(3) was used was in 273. The provision is gone. The Constituent Assembly is gone, and the substitution is for the Constituent Assembly read Legislature of the State. How can you resurrect, My Lord, 370 Sub-Clause 3, all of a sudden, years later, after the Assembly is over and there is J&K Constitution? Now, My Lord, as far as the width of power under 1(d) is there, My Lord, it's subject to constraints. I needn't say more than what has been said, My Lord. It's subject to its two provisos and for the rest of the Constitution consultation and concurrence. Now, My Lord, Article 3(4), and 370 contain mandatory requirements on information to be laid before the House and inter alia, requiring concurrence and consultation. Unfortunately, the mandatory requirements of Article 3, for sending the Bill to the legislature was suspended by the Presidential Proclamation of 19th December 2018, which is ultra vires and taints both the Declaration and the extension of   45 President's Rule in 2018 and 2019. Then, My Lord on President's Rule, the President's Rule Provisions of 356 and 392 and Section 92 of the J&K Constitution cannot be imposed in tandem. and and 370 cannot be invoked during President's Rule at all, since they require the existence of a Legislature and State Government for which the President and Parliament cannot be constitutionally [UNCLEAR]. Then President rule as required by S.R. Bommai and Rameshwar Prasad, is justiciable, requiring objective basis, which includes the Governor's report and all material should be placed before the people and Parliament justifying itself. 

CHIEF JUSTICE DY CHANDRACHUD: No. I was just telling my colleague that you have really summarized very precisely, all that you have argued. We've taken down what you have argued. But now this formulates... 

RAJEEV DHAVAN: Just let me read it out My Lord? 


RAJEEV DHAVAN: Then I'll sit down. And that's a promise. Now My Lord, Article 370. So I've said all the materials. Article 370 can be amended, subject to the caveat in C.O. 48, that all amendments relating to JK must follow the procedure in Article 370 Subclause 1. It is not enough, in 273 says all treaties are out and the Constitution is gone. How can a Constitution disappear like this My Lord? Many federations My Lord, have two state Constitutions and JK, because of its nature, did. Accordingly, 272 and 273 are invalid as being excessive and the JK Re-Organization Act 2019, under and 4, was going beyond the mandatory provisions and in violation of the process of Article 3, wrongly suspended by the Presidential Notification of 19th December. Now, My Lord, I ask, answering Your Lordship's question. "What was lost?" 


RAJEEV DHAVAN: Mr. Zaffar Shah, My Lord, will give Your Lordships, a detailed... 


RAJEEV DHAVAN: This is my summary account. What was lost? The loss of statehood, by degrading it to union territory. That was lost. Indirect abolishment of the JK Constitution, loss of residuary power, loss of territory contrary to the JK Constitution Section 3, Section 4, sorry.   46 Abolition of mandatory informatory, concurrent and consultation provisions. Conversion of statehood into union territories without adequate safeguards, especially for JK and Ladakh Constitution, without a proper amendment and consultative process and concurrent procedure of Article 370, for which C.O. 48 was added to 368. The right of permanent residents of JK on their right to property and to vote because 31, My Lord, Article was not suspended, only the later. Article remained. In the light of the above, which is predated, restore statehood to JK, permit the continuance of the JK Constitution have immediate elections under the JK Constitution, abrogate President's Rule. This is what I have to say. I'm sorry I have stepped over my time. 

CHIEF JUSTICE DY CHANDRACHUD: Thank you, thank you, Dr. Dhavan. Thank you very much. 

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