Arguments of Sr. Adv. Dushyant Dave in Art. 370 case before Constitution Bench
DUSHYANT DAVE: Allow me to begin with these, My Lord, profound words of Justice Aharon Barak, or the President of the Israeli Supreme Court. He was reported in Harvard Law Review, way back in 2002. Since My Lord, we are expounding Constitution, these are extremely apt words and I quote him, "The task of expounding a Constitution is crucially different from that of construing a statute. A Constitution is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of Governmental power." Now My Lord, 370 is perhaps the most brilliant articulation of statesmanship on the part of the Constitutional framers. You are at a time when My Lord calls for plebiscite in Kashmir are being raised. You are at a time when raiders are raiding My Lord in plain clothes and trying to take away. You are at the time when Maharaja is uncertain whether he wants to join the Dominion of India or Pakistan. You are at a time when India is just being born as a what, dominion nation. At a time like that My Lord, it was a brilliant compromise that was arrived at, which led to producing this article which persuaded the people of Jammu and Kashmir to accede to India. We gave them a promise. You cannot not breach that promise in the manner that you have done or for that matter, at any point of time. And that's why what Dr. Dhavan very rightly points out that ultimately each article of the Constitution deals with this kind of diversity, which My Lord if we were to start tinkering with then My Lord, nothing will be left of the Constitution. So, My Lord, Your Lordships may have to consider, in my respectful submission, three My Lord submissions. One, that Article 370 is a piece of unusual draftsman ship. It is temporary, but it is not temporary by efflux of time as most temporary statutes are. It is temporary by object, the purpose. Once that object is achieved, once that purpose is subserved then My Lord nothing remains for the President to exercise. So it is going to be my respectful submission that 370(3) has served its purpose that day Constituent Assembly of Jammu and Kashmir, agreed that yes, Article 370 must remain on the Constitution of India and subject to following modification and President accepted and issued that modification in C.O. 44. That's the end of the story. Your Lordships have taken the view right from Federal Court and I will show series of judgment that temporary statutes My Lord general Clauses Act does not apply. If that is so, then the exercise is one time exercise. You cannot exercise it again and again. It was never intended to be exercised again and again. Now if it is not a continuing exercise on a demurer, in my respectful submission then the only way Parliament could do it is by amending the Constitution under Article 368 and repealing Article 370 and in no other manner. And I will show that's the view eight of Your Lordships have taken in Berubari's case where Your Lordships interpreted a treaty and said that you cannot do this unless you amend the Constitution. And lastly, it's going to be my respectful submission for Your Lordship's kind acceptance, that the exercise of power by the President on 5th of August and 6th of August 2019, are nothing but fraud on the Constitution. As Dr. Dhavan, rightly points out, there is nothing on record why a provision which has successfully survived from 25th October 1947 till My Lord 6th of August 2019 should have been repealed as they claim, or should have been withdrawn. There was no material whatsoever. The only material with respect was that the ruling party in its manifesto in 2019 had said, we will abrogate Article 370. Your Lordships in DC Wadhwa's case have said that you cannot exercise Constitutional powers to achieve political ends. My Lord it's a classic case of fraud on Constitution. So, My Lord, you have a government in, My Lord, association with a local party in Jammu and Kashmir, it is working well. You suddenly withdraw the support from that government. Then you pursue the Governor to issue a... President to issue a 356 order. Then you pursue a President to issue a dissolution of the Assembly. You... Parliament apparently takes control of legislative and executive functions and then you say, now President will exercise all powers into one and more... pass orders under 370. My Lords, what more classic example of abuse of power than this can be? My Lord, as Chief Justice [UNCLEAR] said, My Lord, way back when the fight began with the King, that what King can do everything except making a man a woman, and a woman a man. My Lord, surely President could not have exercised these powers under 370(3) assuming himself to be everything. My Lord as much has been pointed out at great pains and very brilliantly, that My Lord 356 is a temporary provision. Now, My Lords 356 being a temporary situation, can you take actions which are permanent, My Lord or permanency or permanent in nature? Forget anything else because, My Lord, 356 itself says that everything that you have done in the interregnum will come to an end and maximum period for which you can exercise 356 is years. So, My Lord, to do this, My Lord, in my respectful submission, it really strikes at a very basic, My Lord, features of our Constitution. Democracy, federalism... My Lord, Government of India in their affidavit before Your Lordships categorically admits this, and this is very important, the counter, which I'll read at the appropriate stage, that Constituent Assembly of J&K did not in any manner deviate from the provisions of the Constitution of India, which would be applicable to J&K. This is their profound statement. Then, My Lord, they try and, My Lord, they say that, My Lord, ultimately that what we have done is because of national interest. Now, My Lord, nobody knows what this national interest is because it's not been defined in the counter affidavit, there was no material whatsoever. As I said, My Lord, it has survived. Of course, there is an insurgency. Nobody can deny that. But then we have insurgency in so many States, in Northeast India. We had insurgency in Punjab for a long time. If we were to start, My Lord, disintegrating states into union territories in this manner, no state will be saved in this My Lord, under political class that we have today. Tomorrow it may so happen that my party cannot get elected in a state, I will disintegrate into union territories because there is law and order problem. This is something which Your Lordships will have to very seriously consider. It's not just one time exercise. It has such ramifications for future of India, for the Constitution of India, for federalism, for very existence, that My Lord, it will really be giving now this kind of a power to a majoritarian Government, will be destructive of rule of law. It would be terribly destructive of rule of law. And I beseech Your Lordships. That's why in Coelho, Your Lordships have very beautifully put it, that constitutionalism demands that Your Lordships should oversee every act of the Parliament and the Executive. And the moment Your Lordships will find that there is infraction of Constitution, Your Lordships will come down heavily on them. So, My Lord, to create all this atmosphere of fear all around, nobody even got one thing. I must tell Your Lordships, very interesting, very few people, My Lord, way back, on 27th May 1949 in the Constituent Assembly, a debate was going on about the bringing four representatives of J&K, who had not been invited so far. Question was whether they should be nominated or not because everybody felt that they should be present. So, Mr. K. T. Shah, who was an advisor to Government of Jammu and Kashmir and who had Professor K. T. Shah work there very extensively, he made this statement, which was very interesting, which was, perhaps quite inappropriate. He said. "It has been the declaration of highest authority of India and also that of Accession of the State made by the Maharaja, who was the complete constitutional head on the day that accession was agreed to, was subject to confirmation by result of plebiscite." Now please see Pandit Jawahar Lal Nehru's retort to that. Jawahar Lal Nehru retorts by saying "This is absolutely incorrect. Cent percent incorrect. I am amazed, surprised and astounded that such a statement is made by Professor Shah." Why? Because Kashmir has certainly become part of India, and it will always be a part of India. Nobody denies that. Article, Section of the Jammu and Kashmir Constitution itself provides that we are part and parcel of India. Question is, that when, My Lord, you have, now as Your Lordships have very rightly questioned about sovereignty, you can acquire, new land by either accession or by secession or by occupation. In each of these cases, My Lord, you can take away complete sovereignty as My Lord the Chief Justice observed. But what happens in a situation like this where you have agreed as a nation, as a dominion, as a state taking over that territory that I, take your territory subject to this condition. What happens then? There, My Lord, Berubari says that you cannot now get out of those conditions and the only way you can do it is by amending the Constitution of India. Now you don't want to amend the Constitution of India because then you have to follow the procedure. You need two-third majority in both Houses. You may even need to go to the Legislatures of the state because you are taking away representation of the state in Lok Sabha and Rajya Sabha. So you will need 50% of the states to agree to that provision. So these are the safeguards. If these safeguards are thrown out of window in this light manner, who else can protect except Your Lordships? So it is very, therefore important for us to understand, that this is not just about Jammu and Kashmir. Jammu and Kashmir was, is and will always remain part of India. But the promise that India made to Jammu and Kashmir, this secession, which came about, on terms and conditions, how do you interpret those terms and conditions? So, Your Lordships are called upon to expound this constitutional provision, which in my respectful submission is, and I must tell Your Lordships, that Prem Nath, first, Your Lordship said that, "yes, we have to await, the confirmation by the Constituent Assembly." I will show those passages. Then in Sampath Kumar Your Lordships said "Constituent Assembly has given that assent. People have agreed to abide by this and President has accepted." So both ways Your Lordships spoke, in these two judgements give complete finality to what is the eventuality under Article 370 Sub Article 3. So in my respectful submission this is what, this calls for a very different kind of approach, than what Government of India would like Your Lordships to take. That's an extremely, I would say, it's a narrower approach. That's not how constitutions are interpreted. They have to be...these are durable provisions. They must go through the test of times. If merely because something has happened or is happening in Jammu and Kashmir you have to do this, then My Lord it may happen in another state and you might be called upon to do that again. So the power cannot be exercised because of certain situation prevailing at a particular point of time. Constitutional provisions can't be tinkered with in that. So how do you make them durable? You make them durable by really understanding. The need of the hour was that we wanted Kashmir to get into us. Jammu and Kashmir. So at that point of time, we were left with no option but to accept what they offered us. Otherwise, we were afraid Maharaja may run away to... there was one fear that he might go to Pakistan. He might join Pakistan. So My Lord nobody knows what exactly was happening, but who were the people who really were aware? The constitutional framers. And Dr. Ayyangar's exposition of 370 is really the complete answer. Although I am conscious that Constituent Assembly debates may or may not be relied upon but it gives a complete answer to what government tells us on 370. He also says that all that we need is the wishes of the people expressed through a Constituent Assembly. Once that wish is expressed it is the end of the matter. He says that and I will read that My Lord two paragraphs of this. So whichever way one looks at this provision in my respectful submission, this controversy needs a very, very delicate approach from Your Lordships so that we do not end up giving, creating a situation. Today let us assume for the sake of argument that today this decision is in national interest. Let us assume for the sake of argument. Tomorrow, somewhere other political party in power with majority may try and take a decision which is not in national interest. You have to therefore lay down law which will stop all these exercises for all times to come and that's where constitutionalism comes into play. And I beseech Your Lordship with all humility at my command that Your Lordships may therefore look at it this way. Now, take therefore My Lord in this regard kindly turn straight away to one judgment of your... My Lord I have a compilation of judgments which are... you can also Prasanna, you can add them. My Lord it is already with Prasanna, he can add them in just one second if Your Lordships permit.
CHIEF JUSTICE DY CHANDRACHUD: Is it part of the existing compilation now?
DUSHYANT DAVE: It's not with Your Lordships. It is with learned court master Volume 30. Case Law Compilation.
CHIEF JUSTICE DY CHANDRACHUD: Volume 29? We stopped at Volume 28.
S. PRASANNA: and have not been allowed Your Lordships. [INAUDIBLE]
DUSHYANT DAVE: These are judgments only. [NO AUDIO]
CHIEF JUSTICE DY CHANDRACHUD: Judgments are in the compilation? Mr. Dave I'm sorry.
DUSHYANT DAVE: No, many of them are, but five of them are not. Which My Lord Your Lordship knows, our research goes on all the time.
CHIEF JUSTICE DY CHANDRACHUD: Mr. Dave, but at some point of time we have to freeze it all. Otherwise you know...
DUSHYANT DAVE: These are judgements. Your Lordship can't certainly stop us from citing judgments. Submissions, yes, I agree, but...
CHIEF JUSTICE DY CHANDRACHUD: Even judgments, should it not be frozen when you submit written compilation?
DUSHYANT DAVE: My Lord, it's not easy. It's not easy to do it. Let me tell Your Lordships honestly, because this is a thinking process. We are constantly thinking and constantly rethinking and rethinking and rethinking.
JUSTICE SANJAY KISHAN KAUL: Rethink...
DUSHYANT DAVE: To five judgments, I have seen more than 500 judgments, I can assure Your Lordships.
JUSTICE SANJAY KISHAN KAUL: Mr. Dave, if we apply this principle to ourself on the lighter side, then we'll think, keep on thinking, not produce any judgment and keep on thinking only.
DUSHYANT DAVE: My Lords, it's...
JUSTICE SANJAY KISHAN KAUL: All that will happen...
DUSHYANT DAVE: My Lord, Your Lordships once the matter ends. Certainly we'll be thinking many a times over...
JUSTICE SANJAY KISHAN KAUL: Yes, but we, see...
CHIEF JUSTICE DY CHANDRACHUD: Yes, sometimes we have to also say all right now.
DUSHYANT DAVE: No, no. That's... that's...
CHIEF JUSTICE DY CHANDRACHUD: This is the guillotine. Now,I'm not going to think anymore.
DUSHYANT DAVE: All right, my arguments are beginning.
CHIEF JUSTICE DY CHANDRACHUD: All right, but if so many of your judgments are repeated in the compilation already...
DUSHYANT DAVE: I'm not repeating those are there. Those are there which I'm not...
CHIEF JUSTICE DY CHANDRACHUD: Which are the five... which are the five judgments which are not in...? Then give us the judgments.
DUSHYANT DAVE: Judgements which are already given, I'm not My Lords...
JUSTICE SANJIV KHANNA: Actually, the back office work has to be done before the arguments.
CHIEF JUSTICE DY CHANDRACHUD: Much before the arguments. You know, otherwise, it becomes impossible.
JUSTICE SANJAY KISHAN KAUL: Mr. Dave the problem is, if you were a singular counsel arguing...
DUSHYANT DAVE: My Lord once the debate begins in the court, Your Lordships put questions...
CHIEF JUSTICE DY CHANDRACHUD: You know Mr. Dave what happens is, that's why if we don't do this, essentially, difficult matters will never get argued because the whole purpose is to restrict time. If you don't restrict time, we cannot carve out time for big matters.
DUSHYANT DAVE: I have promised one and a half to hours. I'll finish it. I'm not going to take, My Lords...
JUSTICE SANJAY KISHAN KAUL: Mr. Dave, if you were the only Counsel, it doesn't really make so much of a difference because you have added something subtracted something. When there are multiple counsels, counsels, counsels, each person starts doing it. Where do we go? This is the concern. [UNCLEAR]
DUSHYANT DAVE: It's law declared by this Court, My Lord, Your Lordships would always like to see. It's law declared by Your Lordship's Court, My Lord.
CHIEF JUSTICE DY CHANDRACHUD: No butI mean there has to be a certain procedure also, an orderliness in making...
JUSTICE SANJAY KISHAN KAUL: Every year SCC online creates some 19-20 volumes. This is another problem.
DUSHYANT DAVE: My Lord, I'm sure, My Lord Your Lordships directed us to give submissions, I, we never thought that so far as judgments are concerned, because it's a constant research. Nobody can, My Lord, do it at one go. You are trying to find out again and again and again answers. Questions fall from Your Lordships, My Lord Bench. So, My Lord to that, Your Lordships rightly asked about sovereignty...
CHIEF JUSTICE DY CHANDRACHUD: Two volumes, Mr. Dave?
DUSHYANT DAVE: I don't know. is...
S PRASANNA: is Mr. Naphade's. That has also not been allowed by the Court.
JUSTICE SANJAY KISHAN KAUL: This is the problem. How can we do this?
CHIEF JUSTICE DY CHANDRACHUD: How many volumes will we have actually? We should actually be having one volume now of Case Law.
DUSHYANT DAVE: My was allowed already earlier but is what an additional one. I have got printed copies also if Your Lordships like.
CHIEF JUSTICE DY CHANDRACHUD: So, Volume is judgments.?
DUSHYANT DAVE: judgments. [NO AUDIO]
CHIEF JUSTICE DY CHANDRACHUD: also has just Case Law, right?
DUSHYANT DAVE: Yes, yes, My Lord. There are no submissions. These are only judgments. 28, 29, are Case Law Compilations.
CHIEF JUSTICE DY CHANDRACHUD: All right, you can...
DUSHYANT DAVE: My apologies for it but My Lord...
CHIEF JUSTICE DY CHANDRACHUD: What's sauce for the goose is not sauce for the gander. So, you will not...
DUSHYANT DAVE: I'm sure My Lord, Mr. Mehta will definitely like to cite, My Lord, new judgments to counter us.
CHIEF JUSTICE DY CHANDRACHUD: I don't think so. He's not saying that I'm going to cite it. Don't give him ideas.
DUSHYANT DAVE: My Lord, his smile tells us otherwise, My Lord.
TUSHAR MEHTA: My learned friend [UNCLEAR]
CHIEF JUSTICE DY CHANDRACHUD: What is it that you [UNCLEAR]? Alright, Mr. Dave, let's quickly run through it. Give us... why don't you give us the soft copies?
DUSHYANT DAVE: It's in the drive.
CHIEF JUSTICE DY CHANDRACHUD: Judgements or...?
DUSHYANT DAVE: No. Yes My Lord, I would like to.
CHIEF JUSTICE DY CHANDRACHUD: You want to... why don't you then give the judgements in ten minutes that we have today, you can really, give us the framework. What are the judgements you want to cite? What is the principle? Just formulate the principle.
DUSHYANT DAVE: As I said the three points that I want to urge, one is that 370 by itself is a self-exhausting provision.
CHIEF JUSTICE DY CHANDRACHUD: Alright. What are the judgements? Tell us, that you have cited. Volume 29. Page?
DUSHYANT DAVE: 1959.
CHIEF JUSTICE DY CHANDRACHUD: Volume right? Volume 30. Just give us the PDF page.
DUSHYANT DAVE: PDF page 16161.
CHIEF JUSTICE DY CHANDRACHUD: No, no, it can't be 16161.
DUSHYANT DAVE: Page of Volume 30, page 2.
CHIEF JUSTICE DY CHANDRACHUD: Volume? What is the site? What is the name of the case?
DUSHYANT DAVE: This is Dalmia Dadri Cement versus CIT. For this, interpreted, this very, Letter of Accession and said that this is a treaty and My Lord....
CHIEF JUSTICE DY CHANDRACHUD: Para? DUSHYANT DAVE: Yes My Lord, paragraph 3, and 8. 8(ii).
CHIEF JUSTICE DY CHANDRACHUD: 8(ii)?
DUSHYANT DAVE: Yes My Lord.
CHIEF JUSTICE DY CHANDRACHUD: Why don't you read out the relevant part?
DUSHYANT DAVE: Yes. So My Lord.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: Here Your Lordships said, and I.. what fell from the Honourable Chief Justice's....
CHIEF JUSTICE DY CHANDRACHUD: What did it interpret? DUSHYANT DAVE: Sorry?
CHIEF JUSTICE DY CHANDRACHUD: What did it interpret you said?
DUSHYANT DAVE: My Lord, interpreted the accession agreement and held it to be a treaty and then said sovereignty stood transferred.
CHIEF JUSTICE DY CHANDRACHUD: Sovereignty transferred?
DUSHYANT DAVE: Yes My Lord. But in the subsequent case, in Berubari, which is already on record...
CHIEF JUSTICE DY CHANDRACHUD: Now, Berubari, where will we get the citation?
DUSHYANT DAVE: Berubari is at, I'll tell Your Lordship.
CHIEF JUSTICE DY CHANDRACHUD: Which case compilation?
DUSHYANT DAVE: PDF page 13, CLCP 492.
CHIEF JUSTICE DY CHANDRACHUD: No, what is the volume?
DUSHYANT DAVE: Volume 13, page 492.
JUSTICE SANJAY KISHAN KAUL: Volume or 13?
DUSHYANT DAVE: One three.
JUSTICE SANJAY KISHAN KAUL: Volume page?
DUSHYANT DAVE: 92. 492. This will have to be read in extenso, because this is a brilliant exposition of a treaty and why Your Lordships held, that you cannot get out of this treaty except by constitutional amendment.
JUSTICE SANJAY KISHAN KAUL: Volume 13.
DUSHYANT DAVE: I know, Your Lordship knows that Mrs. Dave had to assist me. embarrassment to Your Lordships at that point of time. [INAUDIBLE] That's why I proudly call myself technologically challenged.
CHIEF JUSTICE DY CHANDRACHUD: It’s so simple, Mr. Dave. Just try, give it a try for one day and you'll never go back.
JUSTICE SANJAY KISHAN KAUL: To encourage you on the lighter side by saying, I had an equivalent mind block to it. Among the mind blocks I had, I used to tell the Chief, "See, don't deprive me the privilege of, after a miscellaneous matter, throwing the file down," that's the only privilege a judge has after a badly argued matter. But in these kind of matters, having done it last time, I realized that the volumes become so many. In a small matter it is fine, but in a bulky matter, it works better.
CHIEF JUSTICE DY CHANDRACHUD: So we are encouraging you Mr. Dave that, please, get on board. DUSHYANT DAVE: I am. I am giving Your Lordships PDF pages.
CHIEF JUSTICE DY CHANDRACHUD: That is what your junior is relaying to you. You have to give it to us yourself.
DUSHYANT DAVE: don't take away this from me.
CHIEF JUSTICE DY CHANDRACHUD: Volume 13, page 492. Berubari.
DUSHYANT DAVE: Turn to conclusion. Para 31. My Lords have got it? May I read it please?
CHIEF JUSTICE DY CHANDRACHUD: Please.
DUSHYANT DAVE: 'What then is the nature of the treaty making power of a sovereign state? That is the next problem with which we must consider before addressing ourselves to the questions referred to us for our opinion. As we have already pointed out, it is essential attribute of sovereignty that a sovereign state can acquire foreign territory and can in case of necessity see the part of its territory in favour of a foreign state, and this can be done in exercise of its treaty making power. Session of a national territory in law amounts to transfer of sovereignty over the state territory by the owner state in favour of another state. There can be no doubt that such session is possible and indeed history presents several examples of such transfer of sovereignty. It is true, as often highness has observed that hardship is involved in fact, in all cases of session. The inhabitants of the territory who remain, lose their old 58 citizenship and are handed over to a new sovereign, whether they like it or not. And he has pointed out that it may be possible to mitigate this hardship by stipulating an option to emigrate within a certain period in favour of the inhabitants of the ceded territory as being so everting the charge that inhabitants are handed over to a new sovereignty against their will...' But now similar these words, and I place them for Your Lordships acceptance 'but though from the human point of view, great hardship is inevitably involved in session of a territory by one country to the other. There can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is of course, subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf. In other words, the question is to how treaties can be made by a sovereign state in regard to session of national territory, and how treaties, when made can be implemented, would be governed by provisions in the Constitution of the country. Stated broadly, treaty making power would have to be exercised in the manner contemplated by Constitution and subject to limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by Constitutional amendment will naturally depend on the provisions of the Constitution itself. We must therefore now turn to the aspect that problem and consider the position under our Constitution. In dealing with this aspect, we are proceeding on the assumption that some legislation is necessary to implement the agreement in question.' Then, Your Lordships may omit, My Lord, 5-7 lines and please come to the words unlike other federations.
CHIEF JUSTICE DY CHANDRACHUD: But before that something very interesting. The Attorney General appearing for the Union of India in that case, argued that there is something called the Basic Structure.
DUSHYANT DAVE: Correct.
CHIEF JUSTICE DY CHANDRACHUD: They say that the learned Attorney General has asked us to bear in mind the special features of the Basic Structure of the Constitution...
DUSHYANT DAVE: Correct, My Lord.
CHIEF JUSTICE DY CHANDRACHUD: In construing the relevant provision of Article 3. He contends that the Basic Structure of the Constitution is the same as that of the Government of India Act 1935.
DUSHYANT DAVE: That's how... that's how, My Lord '60, 1960.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: Mr. Setalvad, he alone could do that, My Lord. Now, please see My Lord, 'unlike other federations, the federation embodied in the said act was not the result of a pact or union between separate, independent communities of states who came together for certain purposes and surrendered a part of that sovereignty. The constituent units of federation were deliberately created and it is significant that they, unlike the units of other federations, had no organic roots. Hence, in the Indian Constitution, by contrast with other Federal Constitutions, emphasis on preservation of the territorial integrity of Constituent states is absent. Now My Lords this is important. But, now, My Lord, kindly turn to paragraph 44 at page 515.
JUSTICE SANJIV KHANNA: First read the lower portion.
DUSHYANT DAVE: Just read what, My Lord?
JUSTICE SANJIV KHANNA: Paragraph 32, the lower portion. CHIEF JUSTICE DY CHANDRACHUD: In fact, you can start reading from...
DUSHYANT DAVE: Yes.
CHIEF JUSTICE DY CHANDRACHUD: 'It is a... in fact it is well-known' and then go to end as my learned brother says. 'In fact it is well-known', last lines.
DUSHYANT DAVE: That as a result of States Re-Organization Act in place of original states and one area which was mentioned in Part D of the First Schedule with the Constitution, there are now only states in other areas which constitute Union Territory as mentioned in First Schedule. The changes thus made clearly illustrated the working of peculiar and striking feature of the Indian Constitution. There may be some force in this contention. It may therefore, be assumed that in construing Article 3, we would take into account the fact that Constitution contemplated changes of territorial limits of the Constituent States and there was no guarantee about their territorial integrity. Undoubtedly. Question is, can they be turned in union territories? Of course, they can be changed, territories, no difficulty. That's an express provision. And My Lord, the word, if Your Lordships were to read the word 'union territory' 60 for every word 'state' in, My Lord, Article 3(b), then, My Lord, result will be absolutely, very, very, unbelievable. So, My Lord, although the explanation says that state includes union territory, but if you are to read it...
JUSTICE SANJIV KHANNA: Mr. Dave, I didn't want to interrupt, but if it can be done for the state, why not for union territory until and unless it's something you can make out otherwise. And when the explanation goes, explanation says 'state' and 'union territory' is used interchangeably... DUSHYANT DAVE: My Lord, I must tell Your Lordships, I am not dealing with that part of the argument, which has been very beautifully...
JUSTICE SANJIV KHANNA: That's fine. Okay then, come down.
DUSHYANT DAVE: ...done by my worthy predecessors. But, My Lord, I must tell Your Lordships, that what is really worrying me is this. Your Lordships are right, it can be done. Question is that, My Lord, if it can be done in Jammu and Kashmir, why can't it be done in Gujarat? Why can't it be done in Maharashtra?
JUSTICE SANJIV KHANNA: Okay.
DUSHYANT DAVE: So, My Lord...
JUSTICE SANJIV KHANNA: Let's proceed.
DUSHYANT DAVE: That's something which you have to bear in mind. It can't...
JUSTICE SANJIV KHANNA: Let's proceed.
DUSHYANT DAVE: Now, My Lord, please turn to para 44 straight at page... [NO AUDIO] Our conclusion is that it would not be competent to Parliament to make a law relatable to Article 3, of the Constitution for the purposes of implementing the agreement. It is considered by learned Attorney General that this conclusion must inevitably mean that the law necessary to implement the agreement has to be passed under Article 368. Then, My Lord, 368 is 61 extended... extracted. And then Your Lordships may kindly turn to, My Lord, page 516, para 47. On the other hand, now, My Lord, this is very important. Just see, My Lord, how Your Lordships are viewing, My Lord democracy... on the other hand [INAUDIBLE] is to be passed under Article 368. It has to satisfy the requirements prescribed by the said article. The Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting. That is to say, it should obtain concurrence of a substantial section of the House, which may normally mean the consent of the major parties of the House.
CHIEF JUSTICE DY CHANDRACHUD: Alright we'll come tomorrow.
DUSHYANT DAVE: So, My Lord, look at it this way. Your Lordships not construed even majority, what... to be major parties of the House...
CHIEF JUSTICE DY CHANDRACHUD: Now...
DUSHYANT DAVE: Meaning you must carry everybody on board.
CHIEF JUSTICE DY CHANDRACHUD: After this we have Mr. Dwivedi, will be arguing. Or Mr. Naphade? All right, between the three of you, if you could please request that... could you apportion the time so that, you know, by lunch tomorrow we have completed with Mr. Dave, Mr. Dwivedi and Mr... DUSHYANT DAVE: I said two hours but I'll finish in one and a half hours. PETITIONER'S COUNSEL: [INAUDIBLE]
CHIEF JUSTICE DY CHANDRACHUD: Mr. Dave, could we... could we do this? Maybe if we give an hour... an hour to Mr. Dave, 10:30 to 11:30 tomorrow. Then Mr. Naphade about half an hour. Would that be all right? SHEKHAR NAPHADE: I would require at least an hour.
CHIEF JUSTICE DY CHANDRACHUD: Make it...
SHEKHAR NAPHADE: Every one of us has his own nuance. I will see that overlap is minimal, but some overlap is bound to be there. It can't be helped.
DINESH DWIVEDI: [INAUDIBLE]
CHIEF JUSTICE DY CHANDRACHUD: What we were thinking, was that by tomorrow, because tomorrow is Thursday, Thursday we complete one side, so that, then, next week, the other side can open. So…
SHEKHAR NAPHADE: I am told Your Lordships are continuing on Friday also?
CHIEF JUSTICE DY CHANDRACHUD: No, no, Friday is miscellaneous. So if you could in the evening today, just as you step out of the court, Mr. Dave, Mr. Naphade, Mr. Dwivedi and Mr. C. U. Singh...I don't know Gopal is a moving force behind many of the arguments which have preceded him and then Dr. Menaka. SANJAY PARIKH: My Lord, I am appearing in the matter.
CHIEF JUSTICE DY CHANDRACHUD: The six of the learned Counsel, if you could just meet for five minutes after we rise, between all of you so that we wrap up by tomorrow on this side. PETITIONER'S COUNSEL:
CHIEF JUSTICE DY CHANDRACHUD: Absolutely. PETITIONER'S COUNSEL:
CHIEF JUSTICE DY CHANDRACHUD: Interveners may give us short one page written submissions on both sides so that, Interveners can give us one page written, written note on both sides. So we will not hear Interveners on this side and interveners on this side. We'll have written notes of arguments I think.
TUSHAR MEHTA: But I must point out, on this side, I think except the Government rest are Intervenors. So they may be....
RESPONDENT'S COUNSEL: But then, My Lord, just as the petitioners challenged, we also have an interest in seeing that...
CHIEF JUSTICE DY CHANDRACHUD: Alright, we'll see tomorrow, but what we'll do is, please, do sit down tomorrow between yourselves.
SHEKHAR NAPHADE: is required in matters like this.
CHIEF JUSTICE DY CHANDRACHUD: So, Mr. Parikh is also there. So between yourselves, if you could just, apportion time, so that we don't really err on the side of giving someone more than... DUSHYANT DAVE: I think Your Lordship will have to give us , considering the amount of seriousness with which my distinguished friends, all of them have been at.
CHIEF JUSTICE DY CHANDRACHUD: All right, we'll give you up to Tuesday, but tomorrow now, tomorrow, if you could please do this, that you can give us, now exactly how we'll finish, wrap up with, by Tuesday. So just five minutes of all of you sit down on this side after we rise, it'll help. Thank you, thank you.
DUSHYANT DAVE: Certainly. Deeply obliged.
Page 492, at 508, Para 31. Volume 13, 492 at 508, Para 30.... para 31.
JUSTICE B. R. GAVAI: PDF 508?
DUSHYANT DAVE: Sorry, My Lord.
JUSTICE B. R. GAVAI: PDF 508?
DUSHYANT DAVE: Yes, My Lord.
JUSTICE SURYA KANT: Mr. Dave, PDF number? DUSHYANT DAVE: 49...Volume 13, Page 492, at 508 para 31, which I read..
CHIEF JUSTICE DY CHANDRACHUD: Yes, you read here. DUSHYANT DAVE: One line to be re-read again to buttress my point, Your Lordships, may see last ten lines of that para 31, last ten lines, that's, My Lord, very crucial, because that's exactly what has happened. 370 is a clear, My Lord, I would say, reflection of this viewpoint, that, My Lord, justices of this Court have taken.
JUSTICE B. R. GAVAI: Running page...
DUSHYANT DAVE: My Lords have got it?
JUSTICE B. R. GAVAI: One minute... We are also in the same...
JUSTICE SANJIV KHANNA: I know but there was an intern who was helping Justice Kaul here..
JUSTICE B. R. GAVAI: Justice Kaul and me are totally newcomers to this.
DUSHYANT DAVE: May it please Your Lordships. My Lord, may I once again request Your Lordship to revisit Berubari for a minute. My Lord, where we had stopped yesterday. That is PDF Volume
DUSHYANT DAVE: Beware of, My Lord, Chief Justice, My Lord. He doesn't appreciate those of us who are technologically challenged.
CHIEF JUSTICE DY CHANDRACHUD: Become pros now, my two brothers have become pros.. Surya Kant I had indoctrinated when we sat together for two years, we were together on the...
JUSTICE SANJAY KISHAN KAUL: Learning experience, even yesterday evening while going home.
DUSHYANT DAVE: But what, My Lord, Justice Khanna would remember, Delhi High Court, My Lord started it much earlier. That's why My Lord, most judges from Delhi High Court are extremely pro.
JUSTICE SANJIV KHANNA: We've been used to it, we've been used to it. I think for regular matters, I found it to be extremely helpful, it's very convenient.
JUSTICE SANJAY KISHAN KAUL: I escaped it.
CHIEF JUSTICE DY CHANDRACHUD: See, some state governments are very supportive, others you know are... I remember the time of the pandemic, I won't name the High Court, they didn't have money to pay for the licenses for this videos, video platform that we went, so that's so dust cheap. We just withdrew some licenses from the Supreme Court and transferred it to them. Because they were absolutely in a dire state. And at that time there was a lockdown, you know. It was impossible to run the Court without video conferences.
DUSHYANT DAVE: But if Your Lordships can carry this into, My Lord, the lowest of the courts, Mofussil court, My Lord it would be the greatest contribution that Your Lordships....
CHIEF JUSTICE DY CHANDRACHUD: Phase 3, we have a huge budget. So we are in the process of doing that, setting up our own cloud software for video conferencing.
DUSHYANT DAVE: And My Lord, Your Lordships there will be at least continuity, since all Your Lordships are here for at least next several years so... Now, My Lord, last ten lines of this paragraph. 'This power' it may be added. The words, 'this power', it may be added. My Lords have it?
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: 'This power', it may be added is' of course, subject to the limitations which the Constitution of the State may either expressly or by necessary implication, impose in that behalf. In other words, the question as to how treaties can be made by a sovereign state in regard to accession of national territory, and how treaties, when made, can be implemented, would be governed by the provisions in the Constitution of the country. Stated broadly, the treaty making power, would have to be exercised in the manner contemplated by the Constitution, and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by Constitutional amendment, will naturally depend on provisions of the Constitution itself. Now, My Lord, in my respectful submission, the treaty in question here between the erstwhile ruler and, My Lord, the Governor General, which ultimately... My Lord, that has now been transfixed into Article 370. So, My Lord, 370 is an extraordinarily unusual provision. It's never My Lord... I mean, it's something which is so beautiful, that, My Lord, the Constitutional framers felt that how do we give, My Lord, a kind of respect, kind of acceptability, kind of validity to this Letter of Accession? So, they, my Lord devised, as I said yesterday, My Lord, it was absolute brilliant statesmanship on their part, to bring that into Constitution, to assure people of Jammu and Kashmir that we mean what we say; we are not going to do away with this. So, My Lord, that's why this is very important. That treaty will have to be interpreted in the light of 370. It's now, My Lord, virtually transposed into Article 370. Now, My Lord, in the light of this discussion, please see at Page... Para... "therefore our conclusion is"... Para 44, My Lord. Page 515, Para 44, just first sentence. And this becomes even more important now. “Therefore, our conclusion is…” and My Lord, in my respectful submission, My Lord, know it's a view which is inescapable, and it binds Your Lordships, since this is a judgment of a bench of eight learned judges. “Therefore, our conclusion is that it would not be competent to Parliament to make a law relatable to Article of the Constitution for the purpose of implementing the agreement. It is considered by learned Attorney General, that this conclusion must inevitably mean, that law necessary to implement the agreement has to be passed under 368”. Now, concession follows the conclusion. So, My Lord, it can't be said that it is on a concession. The conclusion of Your Lordships is very categorical, that legislative power is not possible, only a constituent power can be exercised in respect of this. And that constituent power is under 368. So, My Lord, in my respectful submission, far from President exercising the powers… and I will show My Lord, why President had become functus officio. But, My Lord even assuming that, My Lord, 370(3) survives, which it doesn't, in my respectful submission, even then, the power could only be exercised under the constituent power; no other way. Now, My Lord, please… yes... My Lord, this is a little important, because Your Lordships rightly, My Lord, raised the issue as to the definition of Union Territories in Article 3. My Lord, originally, it was not there. It was brought subsequently, by, I think, the 17th Amendment to the Constitution. But Your Lordships said, “States do not include territories”. Kindly see that. Page 516, Para 47. “It would not be out of place to mention one more point before we formulate our opinion on questions referred to us. We have already noticed, that under the proviso to Article of the Constitution, it is prescribed that where proposal contained in bill affects the area, boundaries or name of any of the states, the bill has to be referred by the President to the legislature of that state for its use. Therefore, within such period it is prescribed, it has been heard before us… so and so”. Then My Lord... no, I'm sorry. I'm sorry. I missed that page. It's earlier page. Page... "It is significant that Article 3... it is significant that Article 3" page 513, My Lord, my apologies. Sincere apologies. Page 513, Para 40. My sincere apologies. "It is significant that Article 3, in terms does not refer to the Union Territories and so, whether or not they are intruded in the last Clause of Article 3(a), there is no doubt they are outside a purview of Article 3(b), (c), (d), and (e). In other words, even increase or diminution in the areas of the Union Territories is contemplated or alienation of their boundaries or names is proposed, it cannot be affected by law relatable to Article 3. This position would be of considerable assistance in interpreting Article 3(c). So, My Lord, Parliament, then amended and, 18th, 18th Amendment. That's the joy of having somebody like, My Lord, Gopal sitting next to us. I must, My Lord, confess to Your Lordships, that I have sufficiently been instructed, briefed and educated by Mr. Prashant Bhushan in this matter over several sessions My Lord, because he is appearing with me, and so, My Lord, it is something which I must, My Lord, say that it is... Now, My Lord, please turn back to that para that I was reading, Para 47, at 516 and Your Lordships will find, in the middle somewhere "on the other hand", which is at 10th line from the top, "on the other hand", page 516, para. 47, in the middle, somewhere or 10th line from the top. "On the other hand, it is clear, that if the law in regard to implementation of the Agreement is to be passed under Article 368, it has to satisfy, the requirements prescribed by the said Article. The Bill has to be passed in each House by a majority of the total membership of the House, and by a majority of not less than two thirds of the House present and voting. That is to say, it should obtain concurrence of a substantial section of the House, which may normally mean the consent of the major parties of the House, and that is, a safeguard provided by the Article in matters of this kind. Please see the language. My Lord, this is the protection, Your Lordships have extended and I beseech Your Lordships to extend this further. I beseech Your Lordships to extend this further. That, this is how...You can't My Lord resort to, some kind of executive power, authorized President to do this, My Lord, do away with everything that Article provides, in the garb of My Lord, 356 powers. It makes complete mockery of constitutional safeguards. Because Your Lordship knows what majorities can do. We have seen, My Lord, what happened in 1975. So, My Lords, this is the check and that's why, constitutionalism, Your Lordships, My Lord duty toward the Constitution, to My Lord to ensure that it is upheld, by the Executive and Parliament in letter and spirit. If they don't do it in letter and spirit, this Court will strike it down and must. So My Lords, these words, My Lord I... now, see answers, My Lord, to the reference which was said by the Hon'ble President. We would accordingly...
CHIEF JUSTICE DY CHANDRACHUD: Probably Berubari was decided at the time when, explanation and explanation were not on the Constitutional.
DUSHYANT DAVE: It came as a consequence, Your Lordships...
CHIEF JUSTICE DY CHANDRACHUD: They came as a consequence of Berubari...
DUSHYANT DAVE: Correct.
CHIEF JUSTICE DY CHANDRACHUD: to take into account what the Court held that the State would not include a Union Territory.
DUSHYANT DAVE: Correct.
CHIEF JUSTICE DY CHANDRACHUD: So, now really, that issue will not survive...
DUSHYANT DAVE: No.
CHIEF JUSTICE DY CHANDRACHUD: Because the whole basis was that State will not include the Union Territory, and therefore you couldn't see that territory and exercise the lawmaking power under Article 3, you have to amend the Constitution.
DUSHYANT DAVE: That's... that's... what I... There are two submissions on this. One, that treaty to be interpreted in the light of what Constitution provides, in respect of that treaty. And two, that if you want to now touch that treaty, you cannot do it by a legislative act. You have to do it in exercise of a constituent power. As I said, My Lord, Constitution is durable. My Lord, if it serves the need of the hour on that day, doesn't mean that, My Lord, that need must be wished away because you have a majority.
JUSTICE SANJIV KHANNA: Just...
DUSHYANT DAVE: My Lord, in my respectful submission, the argument that, My Lord, Government is advancing before Your Lordships, does not bear out from plain reading of the Constitutional provision. Now see, My Lord, Chapter 21, the title, 'Temporary, Transitional and Special Provisions.' Now My Lord, I accept that 370 is temporary because it's titled temporary.
CHIEF JUSTICE DY CHANDRACHUD: Yes. DUSHYANT DAVE: But it is temporary from the perspective of J&K, not temporary from the perspective of the Indian dominion or Indian Republic, the choice was left to the Constituent Assembly and therefore the people of J&K to decide whether you want to continue with the status or you want to be away from India. That was the choice. And I will show that from Mr. Ayyangar's, Gopalaswami Ayyangar's, My Lord, very express statement before the Constituent Assembly. So, My Lord he was chairing the committee, which drafted Article 370, there were eight members in it. And they did it because of the extraordinary situation. They realized that we are losing J&K out of our hands. Now, you persuade, My Lord, citizens of a state, a country, at that time an independent state, to accede to you, they agree to accession on clear understanding
JUSTICE B. R. GAVAI: Persuasion by...
DUSHYANT DAVE: Sorry?
JUSTICE B. R. GAVAI: It was the Raja who... Hari Singh who requested the Government of India that...
DUSHYANT DAVE: I agree. No question about it.
JUSTICE B. R. GAVAI: No, you're saying that... DUSHYANT DAVE: But the conditions, historical conditions, can't be lost sight of, Your Lordships are right. Raja requested but in that letter, he expressly asked for this protection. In that letter, he expressly asked for this protection. The Governor General agreed to that. And that is why the Constituent Assembly debated.
JUSTICE BR GAVAI: That's what Mr. Sibal argued that after 1954, this 370 has become permanent.
DUSHYANT DAVE: Yes.
JUSTICE BR GAVAI: [UNCLEAR] the Constitution.
DUSHYANT DAVE: Now, just see My Lord. Just see, My Lord, 370. 370 is, My Lord, what? First and foremost, 370 is, My Lord... that Article 370(1)(c) is most important, that's first. The provisions of Article and of this article shall apply in relation to that state. Meaning thereby, all other articles will not apply. That's an emphatic statement in the Constitution. Article 370(1)(c). We have to begin journey of 370 with that. Then, My Lord, they go forward and say, in Article (b) power of Parliament… sorry, in Article (b)(2)… article... just a second. In Article… My Lord, after that, in (d), “such other provisions of this Constitution shall apply in relation to that state, subject to such exceptions and modifications as the President may, by order, specify”. So My Lord, only Article and Article 370 were expressly applied, all other articles were to be applied by the President, subject to this, My Lord, exercise of power under (d), and read with the proviso. “Provided, no such order which relates to matters specified in Instrument of Accession, shall be issued accepting consultation”. So, if it is part of Instrument of Accession, in consultation. If it is outside the Instrument of Accession, concurrence of the State Government. Now, State Government here, must be understood in the context of democracy. It cannot be understood in the context of 356 and Governor exercising, My Lord, omnipotent powers. That's why, it is, Ny Lord, very important for Your Lordships to read this in letter and spirit. So, My Lord, the constitutional provisions are now added by 1(c) and 1(d). Legislative powers are added by 370(1)(a). (1)(a), and specifically, (b). “The power of Parliament to make laws shall be limited”, please see the words, “shall be limited”. Mandatory. “… to those matters in Union List and the Concurrent List, which in consultation with Government of State, are declared by President to correspond to matter specified in Instrument of Accession. Governing accession of state to the dominion of India as matters with respect to which dominion legislature may make laws for that” And two, “Such other matters in the State List, as with the concurrence of Government of State, President may, by order, specify”. Now, My Lord, why is it temporary? Please see Article… Sub-Article 2. Please see Sub-Article 2. “If concurrence of Government of State referred to in Para of Sub-Clause B”, that is, My Lord, legislative power, “…of Clause 1, or in the second proviso to Sub-Clause D of that Clause”, that’s constitutional provisions, “…be given before Constituent Assembly for the purpose of framing Constitution is convened, it shall be placed before such assembly for such decision as it may take thereon.” Why? Because, My Lord, democracy. You could only do it if the Constituent Assembly approved it. It was a temporary provision. So, they knew Constituent Assembly is being now convened, and soon it may mean… In the Meanwhile, My Lord, President may exercise powers in consultation with the State Government under (1)(b) or My Lord, (1)(c) or (1)(d). They said, yes, they can. But you place them before Constituent Assembly for a post facto approval. So, My Lord, it was never intended to be permanent; it is a temporary provision. And, My Lord, the entire burden, or entire onus, or entire responsibility, or entire power, decision to make the applicability, was left to the Constituent Assembly. This can't be wished away. This, My Lord, is the Constitutional provision. President can't exercise powers like this and say 370 is now otiose, or it stands repealed, or it stands withdrawn. Now, in that context, please see Article 3, My Lord, Sub-Article 3. “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification declare, that this Article shall cease to be operative.” So, My Lord, he can either say it will be cease to be operative, or he can continue, or shall be operative, which means shall be continued, only with such exceptions and modifications, and from such date as he may specify. So, My Lord, the power is both for President to continue or President to discontinue, My Lords. If he wants to continue, he can continue in same fashion or with such exceptions and modifications. But, for President to do so, prior consent of the Constituent Assembly is a must, provided that the recommendation of Constituent Assembly of the State referred to in Clause 2, shall be necessary before President issues such a notification. So Constituent Assembly will send a notification to the President for a resolution and on that President alone can act. You can't My Lord rewrite this, it is, it is not capable of any other understanding. It was therefore, an exercise which was limited by.... therefore an exercise, which brought a temporary provision, but temporary in terms of the objects. Temporary in terms of the actions to be taken, not by effluxion of time. But time becomes important, because the life of Constituent Assembly was only till 1957. Now, My Lord, Constituent Assembly, as Your Lordships have been told, My Lord, went into it, in Kashmir, they said, we want to be part of India. We want Constitution ofIndia to apply to us. We want Article 370 to continue. President accepted that, and he issued, My Lords C. O. in 1954, end of the matter. Where does he then have power to re-exercise that My Lord? It will be travesty of justice. If, My Lord, it is, now today contended by Government of India responsibly before this Court, that no, it has happened but now Governor can send in, and he can act on it. What, that will be, My Lord, virtually, My Lord, destroying this very express provision. And I respectfully submit that, it is impossible to, My Lord, to accede to that interpretation. It was a one-time exercise. It was not, My Lord, intended to be exercised again and again. Even Constituent Assembly was not given power to do it again and again. Supposing they passed a resolution later saying, now we don't want to get out of India and 370 should not apply to us. Was it permissible? In my respectful submission, no. So, Your Lordships, will have to look at it either way. That's why the word temporary, is very meaningful as the heading of the Article. So I respectfully submit, that, My Lord, this Article has lived its life, has achieved its purpose. Now, My Lord, 370(1) survives, because My Lord tomorrow if, Constitution is amended and new Article is inserted, which My Lord, we would like to apply to Jammu and Kashmir also, President then sends, seeks Government's view and then exchanges the Article. So, to that limited extent, perhaps this Article 370(1) may be necessary, but 370(3) is very clear that applicability of Constitution of India per se was only in terms of Article 370(3). And once they decide that, then My Lord it is untouchable, it cannot be revisited. President becomes functus officio, in 1954, so far as 370(3) is concerned. And Your Lordships, have expressly accepted this position. My Lord, in Prem Nath and Sampat Kumar both, Your Lordships had accepted this interpretation. I'll make it, My Lord, good to Your Lordships. Expressly, Your Lordships, have said that. And that is My Lord, the view. Now, just turn to, My Lord, view of Gopalaswami Ayyangar, My Lords. As, Your Lordship, would recall, My Lord, Gopalaswami Ayyangar was, My Lord, the Diwan or Prime Minister of Jammu and Kashmir for many years. My Lord, he was later Defence Minister in post-independent India, and one of the most respected Indians at that point of time. My Lord, he was heading this. Now just see his, My Lord, page, PDF page… Volume 8, PDF page 1175.
JUSTICE SANJAY KISHAN KAUL: Document.. Document 5?
JUSTICE B. R. GAVAI: Document 5. DUSHYANT DAVE: Documents Volume 8.
CHIEF JUSTICE DY CHANDRACHUD: Mr. Dave, if Article 370 works itself out and achieves its purpose once the Constituent Assembly for the State of Jammu and Kashmir has completed its task, then where is the occasion thereafter to issue Constitutional Orders post 1957?
DUSHYANT DAVE: My Lord, I... My Lord that's for 370(1) to extend from time to time any amendments because there were many provisions of Constitution which may not have been made applicable, or many laws which may not have been applicable.
CHIEF JUSTICE DY CHANDRACHUD: But if you see the proviso to (d), (d) refers to other provisions of the Constitution, which will apply subject to such modifications. Then matter which are referable to the IOA require only consultation.
DUSHYANT DAVE: Yes.
CHIEF JUSTICE DY CHANDRACHUD: All other provisions of the Constitution require the..
DUSHYANT DAVE: Concurrence.
CHIEF JUSTICE DY CHANDRACHUD: ... Require the concurrence, that is the second proviso. Then Sub-Article 2, Clause says, 'If the concurrence has been given before the Constituent Assembly has given its opinion, then it has to be placed before the Constituent Assembly for its opinion and for its concurrence. So, your whole argument is that Article 370 has now worked itself out, once the Constituent Assembly completed its task. But that would be belied at the least by constitutional practice, because even after 1957 there were orders which were issued, Constitutional Orders progressively modifying the provisions of the constitutional relation to the State of Jammu and Kashmir. Which means that really speaking, Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate, but Article 370 achieves its life, and what is a temporary provision really assumes the State of permanence in the Indian Constitutional fabric.
DUSHYANT DAVE: My Lord, may I respectfully submit...
CHIEF JUSTICE DY CHANDRACHUD: Because then there is no question of us, or of any Constitutional Orders being issued, progressively from 1954 onwards, or 1958 thereafter..
DUSHYANT DAVE: It refers to those decisions which were taken prior to its, My Lord, Constitution. So, to that limited extent Constituent Assembly's approval was sought for. But, My Lord subsequently, once the Constituent Assembly, My Lord, goes, whatever my respectful submission...
CHIEF JUSTICE DY CHANDRACHUD: But then there is no power to alter the Constitution at all. If your argument is right, then once the Constituent Assembly in 1956, '57 takes its decision. There is no power to change any provision of the constitutional relation to the State of Jammu and Kashmir.
DUSHYANT DAVE: No, I respectfully submit.
CHIEF JUSTICE DY CHANDRACHUD: Which was contrary to what everyone accepted that...
DUSHYANT DAVE: 370(3) is only in respect of continuation of, My Lord, 370 or not. Now, My Lord, they agree, Constituent Assembly agrees, once it agrees that it has to be continued, then it becomes some kind of a permanent decision. Please read... permit me to re-read that My Lord... 370(3). 'Notwithstanding anything in the foregoing provisions of this article, the President made by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions or modifications from such date as he may specify, provided that recommendation of Constituent Assembly of State in Clause D shall be necessary before President issue such a notification.' So My Lord, idea is that you had to decide as a Constituent Assembly whether you want this relationship to continue or not. So, My Lord, they took that decision. CHIEF JUSTICE DY CHANDRACHUD: No. What I was trying to refer to is this, Clause of Article 370 refers to a decision. It uses the expression 'decision'. The proviso to Clause uses the expression 'recommendation' but the commonality between Clause of Article 370 and the proviso to 370(3), is some decision or action on the part of the Constituent Assembly.
DUSHYANT DAVE: My Lord...
CHIEF JUSTICE DY CHANDRACHUD: Just give me a minute, give me a minute. Both require some action on the part of the Constituent Assembly. Clause requires a decision and the proviso to Clause requires the recommendation. Now, according to you, once the Constituent Assembly completed its task in 1957, there was no question thereafter of invoking the proviso to Clause 3, because then it's worked itself out, and the substantive part of Clause 3, and Article 370 becomes a permanent feature of the Constitution. That's the submission. It's a submission worthy of consideration, absolutely. We have to deal with the submission. I'm just trying to explore that submission.
DUSHYANT DAVE: Yes, My Lord.
CHIEF JUSTICE DY CHANDRACHUD: There is one internal inconsistency in accepting that submission, because if that submission is right, qua the proviso to Clause 3, then the consequence would be, that once the Constituent Assembly completed its task in 1957, there could be no amendment to the Constitution at all under Clause of Article 370. Which is… one second. Which is belied not merely by Constitutional practice, but the acceptance by both, the State of Jammu and Kashmir and the Government of India, that amendments were being made to the Constitution even after 1957, and until the disputed Amendment of 2019.
DUSHYANT DAVE: Just see Sub-Article 2.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: “If the concurrence of Government of State, referred to in Para of Sub-Clause B of Clause 1, or second proviso to Sub-Clause D of that clause, be given before the Constituent Assembly is convened…” It's purely limited.
CHIEF JUSTICE DY CHANDRACHUD: It shall be placed before the Constituent…
DUSHYANT DAVE: Before. So, My Lord, this is temporary within temporary. It is in respect of a situation where, My Lord, the Constitution… Now, a state has just come in, India has now become a Republic, a Constituent Assembly is going to be convened soon, and if some decisions are taken to protect them, that government may do anything it wants to, State Government. It may give its concurrence and its consultation. But we should be very clear whether people want it. So they said, “If you have done it before, then place it before the Constituent…
CHIEF JUSTICE DY CHANDRACHUD: But then, would the power of the State Government, to grant its concurrence under the second proviso to Clause D, continue to operate once the Constituent Assembly completed its task in 1957?
DUSHYANT DAVE: My Lord, what has happened is, that government also has said in their affidavit, and I’ll…
CHIEF JUSTICE DY CHANDRACHUD: Or, would that power be exhausted once a Constituent…
DUSHYANT DAVE: All provisions of the Constitution… They have applied all provisions of Constitution by 1954. So really speaking, there is nothing left to be done. It is fully in operation now.
CHIEF JUSTICE DY CHANDRACHUD: Exactly. DUSHYANT DAVE: 370 is fully in operation.
CHIEF JUSTICE DY CHANDRACHUD: But then that is exactly…
DUSHYANT DAVE: We are talking about…
CHIEF JUSTICE DY CHANDRACHUD: You are right, absolutely, logically. But then, how do you explain the fact that there were subsequent amendments to the Constitution by the constituent orders?
DUSHYANT DAVE: My Lord...
CHIEF JUSTICE DY CHANDRACHUD: Because, the provisos to Clause D, refer to State Government. Clause refers to the Constituent Assembly. And Clause says, if the consent of the government was taken before the Constituent Assembly was formed, you have to place it before the Constituent Assembly. DUSHYANT DAVE: My Lord, a wrong practice cannot, My Lord, result in…
CHIEF JUSTICE DY CHANDRACHUD: We’re talking of a practice over what?
DUSHYANT DAVE: But...
CHIEF JUSTICE DY CHANDRACHUD: Over, 46 + 18, 64 years.
DUSHYANT DAVE: 64 years. After 64 years, you can repeal it. My Lord, with great respect the same argument, if it is carried to a logical end, it means that 370(3) can't be repealed, and you continue with the practice. It’s nobody’s case. It's not...
CHIEF JUSTICE DY CHANDRACHUD: That’s completely [UNCLEAR] But otherwise, you will have to say…
DUSHYANT DAVE: My Lord it is not petitioner's case...
CHIEF JUSTICE DY CHANDRACHUD: You will have to say, that…
DUSHYANT DAVE: That no longer amendments of Constitution can apply. That's not petitioner's case. Question is, what is it that was supposed to have been agreed, a promise.
CHIEF JUSTICE DY CHANDRACHUD: If the power under the proviso to Clause has exhausted itself, then equally, the power under the two provisos to Clause D have also exhausted itself. In which case, how do we explain the exercise of that power for 64 years?
DUSHYANT DAVE: My Lord, I’m looking at 370(3) independently of 370(1). 370(2) has no application now. It lived its purpose, because it, by its language, it says that if any decision was… consultation or concurrence was given before we came into existence, you please come back to us, and our decision will be final. That's ended now. So, 370(2) is dead. That's how they wanted it, Constitutional framers.
JUSTICE B. R. GAVAI: 370(1) survives?
DUSHYANT DAVE: … life to it. Likewise...
JUSTICE B. R. GAVAI: Mr. Dave...
DUSHYANT DAVE: 370(3) was also given in a limited sense, and My Lord we can't give now life to it. 370(1), My Lord would survive for the purpose of continuing. Your Lordships are right. I'm not for a moment suggesting conceding on that position. But, if it has continued as a practice, there is nothing wrong about continuing that practice. That means that Article 370 is alive to the extent of Sub-Article 1, not difficulty about it. Question is, can you repeal it? Can you withdraw it? Do you have power under 3?
CHIEF JUSTICE DY CHANDRACHUD: It is 370(1), continues. It will be very difficult to say that 370(3) ceases to exist. The modality for exercise of the power under 370(3), is a different issue, which both Mr. Sibal and Mr. Subramanium and Dr. Dhavan have addressed themselves too, but it would be... because there has to be a logical consistency between how you interpret Clause 2, and its impact on Clause 1, and the proviso to Clause 3, it has to be in tandem.
DUSHYANT DAVE: My Lord...
CHIEF JUSTICE DY CHANDRACHUD: Either everything remains together or everything perishes together.
DUSHYANT DAVE: Then let everything perish together.
CHIEF JUSTICE DY CHANDRACHUD: But if it did, perish, what about the fact that it applied from 1958 to 19, 2018?
DUSHYANT DAVE: Power, My Lord...
CHIEF JUSTICE DY CHANDRACHUD: There is no power to any of the C.O.s.
DUSHYANT DAVE: What is our, our submission? My submission is, that if you wanted to do it, you do it by Constitutional Amendment. You have no power. This is a relationship which has been continued for a long time since before 1947, and 370(1) therefore continues, Your Lordships are right, that time and again Government of India, President, has exercised powers and applied various provisions of laws and Constitution from time to time. That's how they wanted it. That's how they wanted it. But My Lords, it's one thing to continue 370(1) and it's another to repeal. 370(3), that's the difficulty. Nobody is not saying that Presidential Order extending Constitution are wrong or Presidential Order applying various laws are wrong. People of Jammu and Kashmir want Constitution of India. They want the laws to be applied. So My Lord, that position there is nothing wrong about it. But if you, My Lord repeal it, then, My Lord, that limited power of the state to say, that certain laws should be applied in certain manner, My Lord that special status. That..
CHIEF JUSTICE DY CHANDRACHUD: Got the point. We'll move on.
DUSHYANT DAVE: Now just see, My Lord..
JUSTICE SANJIV KHANNA: Just one minute...
DUSHYANT DAVE: Now, please see My Lord, what Your Lordships are saying, is answered in note 370(1)(d) itself. What My Lord Chief Justice is rightly putting, 'The power of Parliament to make laws for the said State shall be limited, to those matters in Union this concurrent list, which in consultation with Government of State, are declared by President to correspond to matters to so and so, as the matters with respect to which dominion may make law.' So that's futuristic, may make law for the State. So any law that is made in future can be applied by the President under 370(1)(b). Then such other matters in the said list as with concurrence of government of State resident may by order specify. So this is futuristic, futuristic exercise of power by the President from time to time. Likewise in (d). 'Such are the provisions of this Constitution shall apply in relation to that State, subject to such exceptions and modifications as President may, by order specify.' So power of President is not a surviving power to be exercised from time to time. That is why the words notwithstanding anything contained in the Constitution are important, in the opening of the article. Now just turn to Mr. Ayyangar's statement. Please turn to PDF, Volume...
JUSTICE B. R. GAVAI: Mr. Dave, we are under the second proviso...
DUSHYANT DAVE: Yes, My Lord.
JUSTICE B. R. GAVAI: ... To (d). All the provisions of the Constitution could not have been made applicable with the concurrence of the Government.
DUSHYANT DAVE: Yes, My Lord.
JUSTICE B. R. GAVAI: Is it not possible that if there is a concurrence of the government, under (d), the entire provisions of the constitution could be made applicable to Jammu and Kashmir?
DUSHYANT DAVE: This could have been. Except three. Except 370, can't be.
JUSTICE B. R. GAVAI: Except 370.
DUSHYANT DAVE: Yes, 370(3) is something which is left to the will of the people. There is no difficulty. Government says it is..
JUSTIE B. R. GAVAI: If everything under the Constitution can be made applicable by exercising the powers under (d).
DUSHYANT DAVE: Lord, it needs consultation and concurrence.
JUSTIE B. R. GAVAI: That is what if, with the concurrence, the question that is being put..
DUSHYANT DAVE: No difficulty. It can be, undoubtedly. But the power of removing Article 370 is disappearing.
JUSTIE B. R. GAVAI: Is a different power.
DUSHYANT DAVE: That's an independent one and Government, Union in this Affidavit has stated that all provisions of Articles are constitutional been made applicable to Jammu and Kashmir, and they have said that there is no difficulty on that. It has worked very well. They say so. There is no doubt that 370 has worked beautifully for last, since 1947, this relationship. There has been no difficulty. It's not Government of India's case that there were impediments in, My Lord, running the administration of the State for any reason. Except national security on some violence, they have not given any other reason also. This has worked. It must continue to work. Now, why it should continue to work? Please see, Dr. Ayyangar's statement. PDF Volume 8, page 1175. The words, 'Again, the Government of India is...'Last para. My Lords have got it?
JUSTICE B. R. GAVAI: Again the Government of India?
DUSHYANT DAVE: Yes. Again the government.. My Lord, Justice Kaul has got?
CHIEF JUSTICE DY CHANDRACHUD: Just one minute.
DUSHYANT DAVE: My Lord, telling the learned law clerk that they are so lucky that they got opportunity to work with Your Lordships. When we started practice, each one of us, we didn't have that facility. We all learned on our own.
CHIEF JUSTICE DY CHANDRACHUD: We are equally fortunate to have their assistance. They are very talented.
JUSTICE SANJAY KISHAN KAUL: The quality of assistance they give, especially in matters of this nature, it's a herculean task just to marshal the records and they assisted tremendously in this.
DUSHYANT DAVE: No. In fact, I had to work hard to get my intern in court today, I wrote out a very personal letter to the assistant registrar and said please for God's sake allow them to come in because their assistance is amazing and their experience, My Lord, the memories they carry back home, are unbelievable. This generation of, My Lord, students are outstanding, these lawyers! They are far more better than my generation was. Again, “The Government of India have committed themselves to the people of Kashmir on 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 Republic or wish to go out of it. We also committed to ascertaining this will of the people by means of a plebiscite, provided peaceful and normal conditions were restored, and impartiality of plebiscite would be guaranteed. We have also agreed that will of the people through Instrument of Constituent Assembly will determine the Constitution of the State, as well as sphere of Union jurisdiction over the state”. Now kindly turnover and please come to, My Lord, page… the last clause, three pages later. The last clause refers to… In fact, right from top, then we'll come to Clause 2. 1178. Then we come to Clause 2.
JUSTICE SANJIV KHANNA: Mr. Dave, the portion you have read, is part of the Constituent Assembly debates relating to the Indian Constitution.
DUSHYANT DAVE: Yes. Part of the Constituent Assembly debates on 17th of October 1949.
JUSTICE SANJIV KHANNA: Correct.
DUSHYANT DAVE: However, 1178, my Lords may turn to...
JUSTICE SANJIV KHANNA: 1-1?
DUSHYANT DAVE: 7-8. Then we come to Clause 2. "You will remember"… then we come to Clause 2. “You will remember, that several of these clauses provide for the concurrence of Government of Jammu and Kashmir State. Now these relate particularly to matters which are not mentioned in Instrument of Accession, and it is one of our commitments to people of Government of Kashmir, that no such additions would be made, except with the consent of the Constituent Assembly, which may be called in the state for the purpose of framing its Constitution. In other words, what we are committed to, is that these additions are matters for determination of Constituent Assembly of the State”. Then, My Lord, one paragraph later. The last clause refers to what may happen later on. Now see this, My Lord. '' We have said Article 211(a), which is 238, will not apply to J&K, but that cannot be a permanent feature of the Constitution of the State, and hope it will not be so. So, the provision is made, that when the Constituent Assembly of the State has met and taken its decision, both on Constitution for the State and on the range of federal jurisdiction over the state, President may, on recommendation of the Constituent Assembly, issue an order, that this Article 306(a), which is 370, shall either cease to be operative, or shall be operative, only subject to such exceptions and modifications as may be specified by him. But before he issues any order of that kind, recommendation of Constituent Assembly will be a condition precedent." That explains the whole of this article. Now see next paragraph. “The effect of this article is, that the Jammu and Kashmir State, which is now a part of India, will continue to be a part of India”. My Lord, the bogey today in the country are a wrong narrative that Jammu and Kashmir is not part of India because of 370. That's not so. That Jawaharlal Nehru also refuted when K.M. Shah said that, Yes, yes, plebiscite. He said, "Nothing doing. It’s part and parcel of India. It's integral part of India”. Unit of federal, and the Union Legislature will get jurisdiction to enact laws on matters specified, either in Instrument of Accession, or by later addition, with concurrence of Government of State, and steps have to be taken for purpose of convening a Constituent Assembly into due course, which will go into matters I have referred. When it has come to a decision on the matters it will make a recommendation to President, who will either abrogate 306(a) or direct that it shall apply with such modification, exceptions or make recommend. That sir, is briefly description and effect of this article. I hope the House will carry it”. And House carried it. Today's House has no moral or Constitutional authority to undo this, just because it has a majority. For the people of Jammu and Kashmir, this was the essential feature of the Constitution and we said, why forget this? We could bring Jammu and Kashmir into our fold. In fact, My Lord, during this Assembly debate, Maulana Hasan said, you are discriminating in favour of Jammu and Kashmir. Because Baroda Maharaja, and I come from Baroda, I didn't know this story at all, but it is mentioned here, Baroda Maharaja also didn't want to join the Union. I didn't know that. And he was physically brought from England, and forced to sign. So Maulana Hasan says, in this debate that you have forced Baroda Maharaja to sign it. He didn't want to sign it.
CHIEF JUSTICE DY CHANDRACHUD: Who, Sayajirao?
DUSHYANT DAVE: Sayaji Rao. I was shocked to read it, because, My Lords, Sayajirao, is perhaps the greatest of the rulers of 20th century. I don't know whether your Lordships knows or not, but the man was absolutely unbelievable. I have been telling family to have a biopic on it, because he was the one who sent Dr. Ambedkar, for education. He was the one, My Lord, who always took guidance from Maharishi Aurobindo, stayed in Baroda for many years and My Lord some of the greatest people. Girl child education he made compulsory in 1920s. Girl child education, free and compulsory. And I was telling Dr. Dhavan in the morning, that I saw, My Lord, a law against water pollution, which was drafted in 1920s. So, My Lord the man had a vision, which was the University of the Baroda, if Your Lordships have seen it. So beautifully designed on Oxford-Cambridge lines. So, My Lord, and the Maharaja will not take a penny more, than what was decided for him by his diwan, at beginning of the year, that you have to only spend this much for your personal expense. He won't touch a penny after that. Now, My Lord, he therefore didn't want to. Now just see my learned friend wants me to read, My Lord at page 1177, perhaps or 1178. Now it is not case... which page? 1177, last para.
CHIEF JUSTICE DY CHANDRACHUD: In fact you know, 1178, see that one para which says, now, you will recall.
DUSHYANT DAVE: Yes, that in some of the causes of this article we have provided concurrence of governments of State, Governments of State feel that in view of commitments already entered into between state and centre, they cannot be regarded as final authorities for giving this concurrence, though they are prepared to give it in interim period. But if they do give this concurrence, this clause provides that concurrence should be placed before Constituent Assembly, when it meets, because it was My Lord, a transitional governments.
CHIEF JUSTICE DY CHANDRACHUD: So therefore, the concurrence of the Government also, in terms of the first proviso to Clause D, was till the Constituent Assembly was convened and took a decision under Clause 2. So even Mr. Ayyangar, construed it in a way, that this concurrence was only up to that point when the Constituent Assembly would come into being.
DUSHYANT DAVE: No, My Lord, that may perhaps...
CHIEF JUSTICE DY CHANDRACHUD: That's what he says, that they will give that in the interim periods till the Constituent Assembly is formed, after which that power has exhausted itself.
DUSHYANT DAVE: In the context of Clause 2. Just see in the context of one.
CHIEF JUSTICE DY CHANDRACHUD: So in which case really speaking, there's no question of concurrence by the state government after 1957.
DUSHYANT DAVE: No, no, no.
CHIEF JUSTICE DY CHANDRACHUD: But yet we operated that provision.
DUSHYANT DAVE: Please see that on C and D at Page 1177. "Clauses C and D, refer..." Your Lordships, see "Clauses C and D refer to provisions of Constitution", My Lords have it?
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: "Clauses C and D refer to the provisions of the Constitution other than matters listed in List and 3. These various provisions have been divided in certain categories. First, according to this [UNCLEAR] is Article 1, of the Constitution will automatically apply. As you know, it describes territory of India and includes amongst territories all states mentioned in Part 3, J&K is one of the States mentioned in Part with regard to other provisions of the Constitution, these will apply to Jammu and Kashmir State with such exceptions and modification as may be decided on, when President issues order to that effect, that order can be issued in regard to subjects mentioned in Instrument of Accession, only after consultation of Government of State, in other matter matters concurrence of that government has to be taken. What, Your Lordships read was in Part Two, because the government was an interim government. So, My Lord, whether that government was rightly giving was being rightly, giving advice or concurring. So, they said, let people decide, to that limited extent. Now My Lord, next paragraph, now it is not the case, nor it is the intention of members of Kashmir Government whom I took opportunity of consulting before this draft was finalized. It is not their intention that other provisions of Constitution are not to apply their particular point of view is that these provisions should apply only in cases where they can suitably apply only subjects with modifications and exceptions, as particular conditions of J&K State may require. I wish to say no more about particular point at the present. So, that is how, My Lord, he looked at it. That is how he defined it, there is no other interpretation possible. This is the author and one of the most respected, My Lord eminent citizens of this country. My Lord, you... you.. on 5th of August, President issues a proclamation, then it is sent to Rajya Sabha, Rajya Sabha sends a recommendation without, My Lord, on the same day. Then Rajya Sabha approves Reorganization Bill on the same day. Next day it goes to Lok Sabha, on the same day, it is approved. My Lord, these Constituent Assembly debates took place over several years. These are the men and women who are most brilliant that have ever been born in this country. We owe a permanent gratitude to them. And if we were to interpret Constitution as today's governments tell us, we will be doing great disservice to these men and women. Please don't do that, My Lord. They were much wiser than anybody in our generations. They knew what India's problems were. As Dr. Dhavan, My Lord, was at pains to point out, they knew about the diversity of this country. They felt the pain of every part of this country. And that pain they brought in, My Lord, in various provisions, to give, recognize this. It's not in.. the Article, My Lord, is not just a letter, it's the feelings of people of Jammu and Kashmir.
CHIEF JUSTICE DY CHANDRACHUD: What next, Mr. Dave now?
DUSHYANT DAVE: Yes, now, My Lord kindly come to in this context, the two judgments which I respectfully submit are sparely, My Lord, supports the view that I have.. My Lord, kindly turn to PDF Volume 1. isn't it? At page 8. Prem Nath Kaul. On October 25, 1947?
CHIEF JUSTICE DY CHANDRACHUD: Volume 1, Page 7, Case Law compilation.
DUSHYANT DAVE: Para ten. Your Lordships may turn to Para 10. Your Lordships have got it? 'On October 25, 1947, Maharaja signed an Instrument of Accession with India, which had then become an independent Dominion. By first Clause of Instrument, the Maharaja declared that he had acceded to Dominion of India with intent. That Governor General of India, Dominion Legislature and Federal Court and any other Dominion authority established for purpose of Dominion shall by virtue of Instrument of Accession subject to the terms thereof for the purposes only of Dominion, exercised in relation to State of Jammu and Kashmir, such functions as may be vested in them by or under Government of India Act so and so.' We may usefully refer to some of the other Clauses of Instrument. Then Lordships may omit all that and please kindly.. Thus last sentence of that para, 'Thus, by the Instrument of Accession, Maharaja took the very important step of recognizing the fact that his state was a part of Dominion of India.' So this is very important, My Lord. The repeal does not subserve any purpose, Jammu and Kashmir is integral part of India. Now kindly turn to My Lord... please turn to paragraph, there is one more argument, Page 287. PDF page 50, para 26. No. Where is para? Page 16? Para 26. There is one more. No just before that. My Lord, just before the paragraph 26, please see last sentence of Para 25. “We must, therefore, reject the argument, that the execution of Instrument of Accession...” of para. 26, last sentence. I'm sorry. The last part of para 26. “We must, therefore, reject the argument, that the execution of Instrument of Accession affected in any manner, the legislative, executive, and judicial powers in regard to Government of State of which, then vested in ruler of the State.” So, for all purposes, Your Lordship’s Court recognized, that My Lord, he was this State who wielded all the powers, and his Instrument of Accession didn't take away those powers, although he became part of India. Now see, My Lord, next paragraph. “There is one more argument which has been heard before us, on the question of Maharaja Hari Singh's powers. It said that Maharaja issued proclamation on March 5, 1948, replacing emergency administration by popular interim government headed by Sheikh Abdullah, constituting Council of Ministers who have to function as Cabinet, and act on principle of joint responsibility. He virtually introduced a popular democratic government in state, surrendered his sovereign rights and became Constitutional Monarch. There is no substance in this argument. The proclamation merely shows under pressure of public opinion, and as a result of difficult and delicate problem raised [UNCLEAR], the Maharaja, very wisely, chose to entrust actual administration government to charge of popular Cabinet”. Then Lordships may omit all that, and please kindly come to, My Lord, page… My Lord, since, "Mr. Chatterjee has relied"... para 32, page 18. “Since Mr. Chatterjee has strongly relied on application of Article 370 of the Constitution to the State in support of his argument, that Yuvraj had ceased to hold plenary legislative powers, it's necessary to examine provisions of this article and their effect”. My Lord, these two judgments are complete answer to what has happened. And My Lord, these judgments bind Your Lordships. There is no reason to differ from this view. “This article was intended to make temporal provisions with respect to State of Jammu and Kashmir then… so and so”. Now, My Lord, please see after the article. “Clause (1)(b) of this article deals with legislative power of Parliament to make laws for the state, and it prescribes limitations in that behalf”. Limitations in that behalf. Under Para 1, Sub-Clause B, Clause 1, “Parliament has power to make laws for state in respect of matters in Union List and Concurrent List, which President, in consultation with Government of State, declares to correspond to matters specified in Instrument of Accession. Whereas, in regard to other matters in the said list, Parliament may by, under Para 2, have power to legislate for the state after such others matters have been specified by his order by President, with the concurrence of the Government of the State. It is significant that Para refers to consultation with Government of State, while Para requires concurrence. Having thus provided for consultation with, and concurrence of Government of State, the explanation shows that ‘Government of State’ means in this…” what it means in this context. “It means, according to appellant, not the Maharaja, acting in his... himself, in his own discretion, but person who is recognized as Maharaja by President, acting on advice of Council of Ministers for this… it is said on this explanation, that appellant has placed great reliance. Sub-clauses (c), (d) and (1) of article, provide respectively, provisions of Article 1, and the present Article shall apply in relation to the state, and that the other provisions of the Constitution shall apply in relation to it, subject to exceptions and modifications specified by Presidential Orders. These provisions are, likewise, made subject to consultation with, or concurrence of Government of State, respectively. Having provided for legislative power of Parliament, and for application of Articles of Constitution to the State, Article 370(2) prescribed that if concurrence of Government of State, required by relevant clauses has been given before Constituent Assembly of Jammu and Kashmir has been convened, such concurrence shall be placed before such assembly for such decision it may take. This clause shows…” This, My Lord, is what Your Lordships are rightly worried about. “This Clause shows that Constitutional makers attach great importance to the final decision of the Constituent Assembly, and continuance of exercise of powers, conferred on the Parliament and President by very relevant temporary provisions of 370(1) is made conditional on the final approval by State Constituent Assembly in State matters. So My Lords, 370(1) continues with that. Once My Lord, it continues then 370(3) becomes otiose. Clause 3, authorizes President, to declare public notifications that, this article shall cease to be operative or shall be operative only with specified exceptions or modification. But this power can be exercised by President, only if Constituent Assembly of State makes recommendations in that behalf. Thus, proviso to Clause also emphasizes importance, which was attached to final decision of Constituent Assembly in regard to relevant matters covered by 370. Now, My Lord, please turn to next para on the same page, on the said construction. Para 38, para 38, but My Lord, please omit first lines. Or lines. The Constitution makers were obviously anxious. My Lords have that? Para. 38, fourth or fifth line. The Constitutional makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself, not by Indian Parliament, State itself. And that is the main basis for purport of the temporary provisions made by the present article, and so the effect of its provisions must be confined to the subject matter. It would be, it would not be permissible or legitimate to hold that by implication, this Article sought to impose limitations on plenary legislative powers of Maharaja. These powers had been recognized, specifically provided by the Constitution Act of the State. It was not and could not have been within contemplation or competence of constitutional makers to impinge even indirectly on the said power. So My Lord, from Maharaja they got transferred to Constituent Assembly, those powers. So they say, that you can't impinge on those powers. It would be recalled that by Instrument of Accession, these powers have been expressly recognized and preserved, and neither subsequent proclamation by Yuvraj Karan Singh, adopting as far as applicable the proposed Constitution nor Constitutional Order subsequently issued by President, purported to impose any limitation, on said legislative powers of the ruler. Please see this. This decisions My Lord, I have completely answered long back, what form of Government the State should adopt, was a matter which had to be and naturally left to be decided by Constituent Assembly of the State, until the Constituent Assembly reached its decision in that behalf. Now see these words, My Lord "until the Constitution Assembly reached its decision in that behalf, the constitutional relations relationship between the State and India continued to be governed basically by Instrument of Accession. It would therefore, be unreasonable to assume that, application of 370 could have affected or was intended to affect plenary powers of Maharaja in matter of governance. In our opinion appellants contention based on this article is therefore, rejected." Now My Lords, please turn to this para, because this is a little important. It is difficult to see how these article purports. Para 40. Para 40, but My Lords after lines, the word starting with the 'constitutional position'. 10-12 lines. PDF 21.
CHIEF JUSTICE DY CHANDRACHUD: The issue is whether the Yuvraj could have really issued...
DUSHYANT DAVE: Turn to Sampath Prakash now.
CHIEF JUSTICE DY CHANDRACHUD: Sampath Prakash.
DUSHYANT DAVE: Same Volume. It starts at page at 30, at 30. On the earlier page at 29, but at 30, please see the answer. "Learned Counsellors in this background, Article 370 of the Constitution could only have been intended to remain effective until Constitution of the State was framed."
JUSTICE SANJAY KISHAN KAUL: You are reading paragraph?
DUSHYANT DAVE: Page 30, para? Para 4.
JUSTICE SANJAY KISHAN KAUL: Just the paragraph above para 5?
DUSHYANT DAVE: Yes. "Learned Counsellors that this background Article 370 of the Constitution could only have been intended to remain effective until Constitution of the State was framed and the will of the people of J&K had been expressed. And thereafter this article must be held to have become ineffective. So that modifications made by President in the exercise of powers under this Article, subsequent to enforcement of Constitution of State would be without any authority of law." Now, please see the answer to that, next paragraph. 'We are not impressed by either of these two arguments advanced by Mr. Rama Murthy. So far as historical background is concerned, Attorney General, appearing on behalf of Government, also relied to us that provisions of Article 370 should be held to be continuing in force.' Please see that, My Lord. Mr. Daftari. 'Should be held to be continuing in force because the situation that existed when this article was incorporated had not materially altered, and purpose of introducing this article was to empower President to exercise discretion in applying Indian Constitution. There is considerable force in this submission. Legislative history of this Article cannot in this circumstances be of any assistance, that this article became ineffective after Constituent Assembly of the State had framed the Constitution.
CHIEF JUSTICE DY CHANDRACHUD: Completely against you, Mr Dave.
DUSHYANT DAVE: Please see that. There are other, much stronger reasons for holding.
CHIEF JUSTICE DY CHANDRACHUD: Even para 5, which says, “Should be held to be continuing in force.”
DUSHYANT DAVE: Yes.
CHIEF JUSTICE DY CHANDRACHUD: And then 6...
JUSTICE SANJIV KHANNA: in fact. and 7.
CHIEF JUSTICE DY CHANDRACHUD: says that the second submission, based on (2) of Article 370 does not find support, even from the language of that Clause, which only refers to the concurrence given by the Government of the State before the Constituent Assembly… and makes no mention at all of the completion of the work of the Constituent Assembly.
DUSHYANT DAVE: ' …does not find support even from language of that clause, which only refers to concurrence given by government before the Constituent Assembly was...' That's what I'm submitting. That’s a very limited… It’s a temporary provision within a temporary provision.
CHIEF JUSTICE DY CHANDRACHUD: But, this seems to give the, seems to hold, that the article, in its entirety, would continue to govern even after the Constituent Assembly had completed its task.
DUSHYANT DAVE: No. Not as a whole.
JUSTICE SANJAY KISHAN KAUL: Read 7, para 7.
DUSHYANT DAVE: Let me read it, My Lord. Your Lordships may allow me to complete.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: “There are, however, much stronger reasons for holding, that provisions of this article continued in force and remain effective even after Constituent Assembly of State had passed Constitution. The most important provision in this connection is contained in Clause of Article, which lays down that this article shall cease to be operative or shall be operative only with such exceptions and modification, and from such state as President, may by public notification, provided recommendation of Constituent Assembly of State, referred to in Clause shall be necessary before President issues. This Clause clearly envisages that article will continue to be operative, and can cease to be operative only on the recommendation of Constituent Assembly of the State, President makes a notification direction to that effect. In fact, no such recommendation was made by Constituent Assembly of the State, nor was order made by President declaring article shall cease to be operative. On the contrary…”' That's important… “It appears that Constituent Assembly of the State made a recommendation, that article should be operative with one modification to be incorporated in the explanation to Clause of the article. This modification in the article was notified by the President, by Ministry of Law Order dated for 15th November ‘52, and laid down that from 17th November, article was to be operated with substitution of new explanation for old explanation. This makes it very clear that Constituent Assembly of the State did not desire that this article should cease to be operative, and in fact, expressed its agreement to the continued operation of this article, by making a recommendation it should be operative with modification only.” My Lord, it can’t be.. You can't now resort to 370(3) to repeal it. Constituent Assembly has accepted it’s a one-time exercise, My Lord. President has accepted, acted upon it.
JUSTICE SANJAY KISHAN KAUL: It is not repealed Mr…
DUSHYANT DAVE: No, it becomes inoperative.
JUSTICE SANJAY KISHAN KAUL: So, from time to time…. this is what I said earlier. From time to time, C.O.s have been issued...
DUSHYANT DAVE: No, we are not on 370(1). I am on 370, Sub-Article 3.
JUSTICE SANJAY KISHAN KAUL: Even the present exercise, other argument being open, it is not removed, it has applied the other provision. As it exists, it exists in the statute of the Constitution.
DUSHYANT DAVE: No, My Lord, they have repealed it. They have deleted it. They have exercised 370(3) to delete it.
JUSTICE SANJAY KISHAN KAUL: All provisions…
DUSHYANT DAVE: I'll just tell Your Lordships.
JUSTICE SANJAY KISHAN KAUL: Now, as it stands is, all provisions of this Constitution, amended from time to time, have been applied.
DUSHYANT DAVE: My Lord, they have abrogated 370, and applied all the provisions of the Constitution. Both they have done. That was not permissible. Now see further, My Lord.
JUSTICE SANJIV KHANNA: Mr. Dave, we can just go a little earlier, paragraph 4.
DUSHYANT DAVE: Yes.
JUSTICE SANJIV KHANNA: First argument and the second argument, that will clarify the situation. It’s at page 29, rather. The first argument was that…
DUSHYANT DAVE: Yes. The first argument was that this article contained temporary provision which ceased to be effective after Constituent Assembly convened for purpose of framing Constitution of J&K, had completed his task by framing Constitution. Reliance was based on historical background in 370 included so and so… Then Your Lordships may omit. The answer is, My Lord…
JUSTICE SANJIV KHANNA: And then it goes also... [NO AUDIO]
JUSTICE SANJIV KHANNA: As you have done, and in this background, then it stated that background of Article 370 could have been intended to remain effective till the Constitution of the State was framed and the people of Jammu and Kashmir had been expressed and thereafter must be ceased to have become ineffective, so that modifications made by the President.....
DUSHYANT DAVE: Without authority. Now see the answer. [NO AUDIO] I'm grateful to Your Lordships. Your Lordships, said no, but we are not on that. It's not our contention that 370(1), doesn't apply or President can't exercise powers under 370, Sub-Article 1. As, My Lord, recorded at page, My Lord... PDF Page 31, Para 7. Para 7. That's the answer. That it was, My Lord, left to be a Constituent Assembly. Otherwise, it makes mockery of the provision. If now somebody else My Lord, complete stranger, went to decide. The Governor will make a recommendation, or the President will make a recommendation, or Parliament will resolve. Here what they have done is that Parliament resolved, that's an unusual procedure. It's neither a Constituent Power nor a Legislative Power that Parliament exercised on 5th and 6th of August 2019. Parliament resolves that President may issue an order under 370(3) abrogating it. It's an extraordinary, My Lord, I must say Legislative Act, I mean Parliamentary Act. It's neither Legislative nor Constituent. It's not a Constituent Power.... advised that because State is under President's Rule, Parliament therefore is Constituent Assembly or Legislative Assembly, and therefore this must be, could be done. But My Lord, it can't be because that has come to an end. Speaking for Federal Court Chief Justice Kania, said this in 1949 FCR, My Lord, Jatindra Nath Gupta vs Bihar, Your Lordship are aware of that judgment. 'As a general rule, and unless it contains some special provision to the contrary after a Temporary Statute has expired, no proceedings can be taken upon it as it ceases to have any further effect.' 370(3), is that. 1949, FCR, 595. It's at, Volume 30, Page 18. I'm not going to trouble reading it, but this is the state and this has been recognized subsequently. Even General Clauses Act doesn't apply Your Lordships to temporary statues and Article 367, expressly begins with a non-obstante Clause subject to the contrary. Article 367 begins with a non-obstante Clause says subject to the contrary, unless context otherwise requires. Now, My Lord 370 therefore, context is completely different.
CHIEF JUSTICE DY CHANDRACHUD: Does apply. Section will apply... what you said.
DUSHYANT DAVE: I am looking to the statute, My Lord, and making submission because Federal Court judgment was not granted. I'm sure you will get opportunity.
CHIEF JUSTICE DY CHANDRACHUD: No. This judgment says that the General Clauses Act will apply.
DUSHYANT DAVE: Yes. Yes. I've seen that, My Lord. I have seen that. I have marked that portion also, but My Lord my respectful submission, is that here, because of the context of 370(3), I respectfully submitted in respect of Sub-Article 3, there is no question that it should apply. Now My Lord, one judgment that I would like to place, before Your Lordships for consideration is My Lord... So, My Lord this is my second argument that My Lord, 370 Sub31 Article stood exhausted, and therefore, President neither could exercise powers, nor could Parliament recommend to the President to exercise that power. Now My Lord, just to take, look at the Counter Affidavit which has been filed on behalf of Union of India. My Lord, Common Counter on all it says, Lord, it's a counter, which is for all comprehensive counter, they call it. PDF 5, Common Counter.
CHIEF JUSTICE DY CHANDRACHUD: This will be in the paper book, right?
DUSHYANT DAVE: Yes, My Lord.
COURT MASTER: 501.7.
CHIEF JUSTICE DY CHANDRACHUD: Oh, 501.7.
DUSHYANT DAVE: Thank you, Mr. Court Master. COURT MASTER: Page 2990... 501.7
DUSHYANT DAVE: Justice Surya Kant has? Mr. Court Master kindly...
JUSTICE SURYA KANT: Page? PDF?
DUSHYANT DAVE: 2990.
CHIEF JUSTICE DY CHANDRACHUD: Which is the internal page? Mr. Dave?
DUSHYANT DAVE: Your Lordships may kindly turn to page 13. Do Your Lordships have Page 13?
CHIEF JUSTICE DY CHANDRACHUD: It will be 3104?
DUSHYANT DAVE: Sub para 7...7 or 8, what is it? 8. As has been explained in greater detail...
CHIEF JUSTICE DY CHANDRACHUD: One second, just one second, give me one second.
DUSHYANT DAVE: [NO AUDIO] Mr. Mehta.
CHIEF JUSTICE DY CHANDRACHUD: 3005.
JUSTICE B. R. GAVAI: At page 13.
JUSTICE SANJAY KISHAN KAUL: Page is 3005.
CHIEF JUSTICE DY CHANDRACHUD: PDF 3005. DUSHYANT DAVE: 'As has been explained in greater detail in later paragraphs of this affidavit, it has been observed, it was observed over years, existing regime under Article 370 and exemptions, modifications carried out to the provisions of Constitution of India by Presidential Orders, issued under 370(1)(d), where impeding rather than enabling facilitating full integration of erstwhile State of Jammu and Kashmir with rest of the country which was neither in national interest nor in interest of State of Jammu and Kashmir. How impeding? Somebody makes a statement from Home Ministry. I'm giving no details as to how it has impeded. Law and Order problems certainly exists but it is not because of applicability or otherwise of the Constitution. Now please turn over, My Lord. Kindly turn to paragraph, straight away to paragraph, My Lord page 18... Page 18. Part of para 8, My Lord, (v). Your Lordships have that? Page 20, perhaps PDF page 20.
CHIEF JUSTICE DY CHANDRACHUD: Mr. Dave, are you inviting the court to review the wisdom of the decision of the government, on the abrogation of 370?
DUSHYANT DAVE: Yes, My Lord.
CHIEF JUSTICE DY CHANDRACHUD: So you're now, you're saying that judicial review should reassess the basis of the government's decision that it is not in the national interest to continue with Article 370. DUSHYANT DAVE: When Chief Justice Chandrachud said in '88, that My Lord, this theory that was developed in United States Supreme Court, that political decisions, Court shouldn't go into. That has now, My Lord... that was given... and in Poudyal, Your Lordships expressly rejected that argument.
CHIEF JUSTICE DY CHANDRACHUD: But judicial review would be confined to a constitutional violation. Constitutional violation, certainly, it's open to, amenable to judicial review.
DUSHYANT DAVE: My Lord, I would respectfully submit that even subject...
CHIEF JUSTICE DY CHANDRACHUD: There's no doubt that if there's a constitutional violation, this court has a jurisdiction to review. Of course, that’s undoubted.
DUSHYANT DAVE: Let me put it this way. President is undoubtedly exercising powers under 370, purportedly. In Shamsher Singh Your Lordships have said, that President can only exercise Presidential power in constitutional sense. No other sense. Not personal.
CHIEF JUSTICE DY CHANDRACHUD: But the wisdom underlying the decision to abrogate…
DUSHYANT DAVE: My Lord, there is no question of wisdom. President can only look at 370. President has to be advised by his advisors, that 370(3) does not exist today.
CHIEF JUSTICE DY CHANDRACHUD: Then, we are back, therefore, to the Constitutional argument. Constitutional argument, of course, judicial review is available, and we are addressing ourselves. There is no doubt about it.
DUSHYANT DAVE: I am on fraud on Constitution, Your Lordships are right.
CHIEF JUSTICE DY CHANDRACHUD: Fraud on the Constitution.
DUSHYANT DAVE: I am on fraud on Constitution, that President is today exercising a power without any material whatsoever, without any justification whatsoever, and to wish it away by simply saying that it was impeding. My Lord, surely, this Court is not going to accept that kind of very cavalier affidavit on part of Union of India. The argument was this, that these are political questions, don't go into it. Your Lordships had nothing… we will go into them. And now, after Bommai, Your Lordships have expanded the horizon. Your Lordships have gone, My Lord, to an extent… whatI… Now, just see, My Lord, two more things in this affidavit. Kindly turn to, My Lord, paragraph 15. It's a bundle of contradiction, their affidavit.
CHIEF JUSTICE DY CHANDRACHUD: Paragraph 15?
DUSHYANT DAVE: Yes, My Lord.
CHIEF JUSTICE DY CHANDRACHUD: What PDF page would that be?
DUSHYANT DAVE: PDF 25... Thank you Mr. Court Master
CHIEF JUSTICE DY CHANDRACHUD: 3015.
DUSHYANT DAVE: “I state and submit that Constituent Assembly of erstwhile State of Jammu and Kashmir, did not in any manner, deviate”. Please see that, My Lord. “Did not, in any manner, deviate from provisions of Constitution of India, which would be applicable to erstwhile State of Jammu and Kashmir. The Constitution of J&K adopted by this Constituent Assembly included Section 3, which unequivocally stated, State of Jammu and Kashmir is, and shall be, an integral part of Union of India. Additionally, Section stated executive and legislative power of state extends to all matters, except those with respect to which Parliament has power to make laws for state under provisions of the Constitution of India”. There can be no doubt...
CHIEF JUSTICE DY CHANDRACHUD: Mr. Dave, do we really need to labour on the Counter? We have to... we have interpret the Constitutional provision as it stands. How is this relevant?
DUSHYANT DAVE; Your Lordships are right, I bow down. I’m submitting that there are no reasons available in Presidential exercise, nor are they given in, My Lord, Counter. It's bereft of any reasons. The whole entire exercise. That's my respectful submission.
CHIEF JUSTICE DY CHANDRACHUD: Yes. DUSHYANT DAVE: Now, see last sentence. “There can be no doubt, therefore, Jammu and Kashmir became integral part of India, and Constituent Assembly, an elected body had also given its imprimatur to the provisions of Constitution of India”. Now, My Lords, please see, in this regard two decisions. My Lord, kindly turn to the judgment of, My Lord [NO AUDIO] My Lord, on fraud. Just see, My Lord, one paragraph of this judgment.
JUSTICE SANJAY KISHAN KAUL: Now, what are you referring?
DUSHYANT DAVE: My Lord, this is the Constitution Bench judgment in Mudaliar on fraud on the Constitution. Just see, My Lord this interpretation. And then I'll take to the next...
CHIEF JUSTICE DY CHANDRACHUD: Where will we get it, Mr. Dave? DUSHYANT DAVE: Volume 28, Case Law, Volume 28. Page 8. 15. at 15.
CHIEF JUSTICE DY CHANDRACHUD: Volume 28, Case Law compilation.
DUSHYANT DAVE: PDF Page 19. I'm sorry this leads us to the consideration....
CHIEF JUSTICE DY CHANDRACHUD: Mudaliar is at page... its internal page 7, right?
JUSTICE SURYA KANT: Para 16. DUSHYANT DAVE: At Page 19.
CHIEF JUSTICE DY CHANDRACHUD : At what Para? JUSTICE SURYA KANT: Para 16. DUSHYANT DAVE: Para 1-6. 'These leads us to the consideration of the question of scope of doctrine of fraud on power. In Gajpati Narayan, Mukherjee. Justice Mukherjee as he then explained, the doctrine. It may be made clear that outside doctrine of colourable legislation does not involve any question of bona fide or malafide. The old doctrine resolves into a question of competency of a particular legislation. If Legislature is competent to pass law motives which impended are irrelevant. On the other hand, it Legislature lacks competency, question of motive does not arise whether a Statute is constitutional or not that's always the question of power. Learned Judge describes how Legislature may transgress the limit.' Now, this is important. 'Such transgression may be patent, manifest or direct, but it may also be disguised, overt or indirect. And it is to these later class of cases that expression colourable legislation has been applied in certain judicial pronouncements.' Now My Lord, In D. C. Wadhwa, Your Lordships go further. And that is that page... Parliamentary Recommendation, My Lord, in my respectful respect suffers from complete colourable exercise of Parliamentary Powers. It was neither exercising constituent power under 368, nor any legislative power. Resolutions are passed by Parliament on many issues, sometimes not even to honour some individuals, or to say some other things, or to recognize great events in the country. So, Parliament here passes resolution and says, Mr. President, you kindly do this. That, My Lord, respectful submission is a pure act outside Parliamentary Power and they did it only because the assembly was dissolved purporting to act as assembly of J&K. That we are now, since the assembly is dissolved, therefore, President has the powers and Parliament has powers under 356. Volume 19, My Lord. Page 118, just one para. One para. My Lord, Para 7, PDF page 131.
CHIEF JUSTICE DY CHANDRACHUD: Which judgment is this?
DUSHYANT DAVE: My Lord, this is D C Wadhwa.
CHIEF JUSTICE DY CHANDRACHUD: One second. PDF Page?
DUSHYANT DAVE: Of Volume 19, 1-9, 118 at 131.
CHIEF JUSTICE DY CHANDRACHUD: No, No. That's some other judgment .
JUSTICE SANJIV KHANNA: That's State of Tamil Nadu.
CHIEF JUSTICE DY CHANDRACHUD: State of Tamil Nadu versus Padmavati Ammal. JUSTICE SURYA KANT: Volume 19.
JUSTICE SANJIV KHANNA: 19. JUSTICE SURYA KANT: PDF, I think 131. You are referring DC Wadhwa?
DUSHYANT DAVE: Yes, My Lord. CHIEF JUSTICE DY CHANDRACHUD: No, we have some other judgment, Padmavati Ammal.
JUSTICE SANJAY KISHAN KAUL: Volume 19, what is the PDF Page number?
CHIEF JUSTICE DY CHANDRACHUD: Oh, oh, yes, it's 118. Actually, it's immediately after that it's 118, 118.
CHIEF JUSTICE DY CHANDRACHUD: Page 118 at 131.
DUSHYANT DAVE: 131, para 7. I will not trouble Your Lordships reading that. The emergency power of the Governor was in the context of ordinances. But just above where Justice Mukherjee's dictum in Gajapati Narayan is cited, just above that. Four lines above that.
CHIEF JUSTICE DY CHANDRACHUD: At page 133.
DUSHYANT DAVE: 133. 'It is settled law...' My Lord, this is what I placed for Your Lordship's kind consideration. 'It is settled law that a constitutional authority cannot do indirectly what it is not permitted to directly.If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would clearly be a fraud on the Constitutional provision.' This is precisely what was pointed out by Justice Mukherjee and that's my respectful submission, that My Lord... and, My Lord, [UNCLEAR] is also considered. Now, My Lord, last judgement that I placed for Your Lordship is the UP Assembly Case, Volume 30, PDF Page 73. Volume 30, PDF 73 at 92.
JUSTICE SANJAY KISHAN KAUL: Volume?
DUSHYANT DAVE: Para 38. Volume 30, My Lord, Volume 30. My Lord, this is the Special reference.
JUSTICE SURYA KANT: PDF?
DUSHYANT DAVE: PDF 30. Sorry. PDF 73, Volume 30, PDF 73 at 92, para 38.
JUSTICE SANJIV KHANNA: What's the name of the case?
CHIEF JUSTICE DY CHANDRACHUD: It is that three powers, privileges and immunities of state, UP case.
JUSTICE SANJAY KISHAN KAUL: What page are you referring to Mr. Dave?
DUSHYANT DAVE: My Lord, at para 38, 92.
JUSTICE SANJIV KHANNA: 92. DUSHYANT DAVE: Page 92, para 38.
JUSTICE SANJAY KISHAN KAUL: In dealing with this question?
DUSHYANT DAVE: Yes, My Lord, grateful. All Your Lordships have that? My Lord, Justice Khanna?
JUSTICE SANJIV KHANNA: Just give me a minute. Paragraph number?
DUSHYANT DAVE: 38.
JUSTICE SANJIV KHANNA: 38, okay. DUSHYANT DAVE: 'In dealing with this question, it's necessary to bear in mind one fundamental feature of Federal Constitution. In England, Parliament is sovereign and in words of Dicey, the three distinguishing features of the principle of parliamentary sovereignty are that Parliament has right to make or unmake any law whatever, that no person or body is recognized by law of England is having a right to override or set aside legislation of Parliament. And that right of power of Parliament extends to every part of Queen's dominion. On the other hand, essential characteristic of federalism is distribution of limited executive, legislative, and judicial authority among bodies which are coordinate with and independent of each other. Supremacy of Constitution is a fundamental to existence of a federal State, in order to prevent either the legislature of Federal Units or those of the Member States from destroying or impairing that delicate balance of power...' That's precisely what has happened, destroyed the delicate balance of power....which satisfies the particular requirements of States, which are desirous of Union, but not prepared to merge their individuality in unity.' My Lord, you can't rewrite history and a Constitutional history can certainly be never rewritten. That's why it's durability. 'This supremacy of Constitution is protected by the authority of an independent judicial body.' Your Lordships, 'Independent judicial body to act as interpreter of a scheme of distribution of powers. Nor is any change possible in the Constitution by the ordinary process of Federal or State legislation.' Ordinary process, 370, President issues, Parliament pass resolution.
CHIEF JUSTICE DY CHANDRACHUD: Yes, Mr. Dave.
DUSHYANT DAVE: Thus, the dominant characteristic of British Constitution cannot be claimed by a federal Constitution like ours. Then, My Lord, next para. 'Our legislature, have undoubtedly, plenary powers. But these powers are controlled by basic concepts of the written 39 Constitution itself, and can be exercised within legislative fields allotted to their jurisdiction by three Lists under the Seventh Schedule. But beyond the Lists, legislatures cannot travel. They can, no doubt, exercise their plenary legislative authority and discharge their legislative functions by virtue of powers conferred on them by relevant provisions of the Constitution, but the basis of power is Constitution itself.”
CHIEF JUSTICE DY CHANDRACHUD: Yes, Mr Dave, we have read that. Thank you. Which is the next judgment?
DUSHYANT DAVE: My Lord, one sentence in paragraph 40, last sentence, PDF page 93. “Therefore, there can be no doubt, that the sovereignty which can be claimed by Parliament in England, cannot be claimed by any legislature in India in the literal, absolute sense”.
CHIEF JUSTICE DY CHANDRACHUD: Yes.
DUSHYANT DAVE: So, My Lord, whichever way one looks at it…Your Lordships may look at the UP Assembly case, or Your Lordships may look at Shamsher Singh’s case If My Lord, the exercise of power by the Constitution or by the Parliament has to be done under the Constitution itself and in the Constitutional sense, then in my respectful submission, Constitutional sense or Constitutional provisions prohibited… prohibited both the President and Parliament from touching Article 370, Sub-Article 3, in any manner, to abrogate it. There is no power to abrogate 370 under 370(3), because as I respectfully submitted, that, My Lord, it has lived its purpose, its object, and, therefore, it no longer is available for exercise. In any case, the exercise suffers from a fraud on the Constitution, because it has been done completely contrary to Constitutional provisions. And, My Lord, the principle of federalism, principle of democracy, which Bommai has so beautifully escribed, because ultimately… That's why, My Lord, Constitutional framers were very conscious, let the people of Jammu & Kashmir decide how they want their relationship. They decided, for all times to come. It was not My Lord, the... It was not a temporary exercise by Constituent Assembly. That's why I said, it would be travesty of justice that Constituent or Legislative Assembly of Jammu and Kashmir, were now to be given authority to say, that no Constitution of India will not apply to us. That power also, for them, stands exhausted. So, My Lord, those are my respectful submissions. Therefore, I respectfully submit... My Lord, there is one aspect, which I must tell you. My Lord, in my written submissions I have quoted from the 2019 manifesto of the Bhartiya Janta Party. In that, My Lord, they expressly said that we will work towards abrogating Article 370. My Lord, in my respectful submission, this Court has already said in the 2013 judgment, that these manifestos can't be contrary to Constitutional scheme, one, and directed EC to issue 40 guidelines. 2015, EC issued guidelines, and told all political parties that your manifestos must be within the Constitutional scheme and spirit. Now, My Lord, today, because you have majority in Parliament, you have done not for any purpose. So, My Lord, this argument of impeding, etc. is not relevant at all. It doesn't exist. The only reason you have done it, because you told people of India to vote for you, because I will go and abrogate Article 370. That My Lord, shows that the power has been exercised for colourable considerations. The actual exercise is, My Lord, fraud, with clearly… My Lord, I would say, irrelevant considerations, which cannot apply to broad Constitutional exercise. The President is not a rubber stamp. He had to seal this. Yes, you have the majority in Parliament, but majority doesn't speak, My Lord. It's not a Constituent power. You didn't want to go, therefore, to the majority of both Houses of Parliament. You didn't want to do that. You didn't want to go to legislature, because you are now taking away out of five Lok Sabha members and four Rajya Sabha members. Once you divide territory, those members, their representation is gone. If the representation is gone by virtue of Article 368 (1), you are supposed to go to all… many state legislatures and take their approval, because they are also concerned. 368 is very beautifully worded. There are so many safeguards in it.
CHIEF JUSTICE DY CHANDRACHUD: Alright, thank you, Mr Dave.
DUSHYANT DAVE: So those are my respectful submission. Deeply obliged, your Lordships.
CHIEF JUSTICE DY CHANDRACHUD: Thank you now, thank you, Mr. Dave. Who will argue now?
DUSHYANT DAVE: It's been a privilege. Grateful.