31.08.2023

RAKESH DWIVEDI: So, let me begin with a deep breath. 14 days of wait and did some hiccups finally on the pitch. However, My Lords, we are dealing with Kashmir, one goes to Kashmir, 14 days are not enough. I think the first I will vouch for that. And even a month will be My Lord, less. There is so much beautiful scenery and so much beautiful and nice people and nice culture. So what one thing is there with this proceeding where learned counsel...when you play a match on the pitch, then you don't watch the scoreboard. Forget it. So one thing is clear My Lord, that the learned counsels on my right, they have very ably put forward the case for the rights which the people of Kashmir or at least some of them feel vest in them and the desire to see the continuance of 370. Nobody can say that the lawyers who are not from Delhi, they have taken full care of the interests of those who believe in the continuance of 370. And even the world who is watching should see that the emotions with regard to Kashmir are not only running in the veins of people of Kashmir, but the whole of the people of India. They are concerned with Kashmir. One way or the other. That's a different matter. Which way the judgment goes is another matter. But we are all concerned with Kashmir. That's the stature of Kashmir in the hearts of all the people,1.40 crores. The other aside is...My Lord, that I was wondering taking a cricketing analogy [UNCLEAR] aside that when we walk into the pitch the opening batsman was one finds with the guards and thigh guards and elbow guards and helmets nowadays. But our opening batsman, the learned Solicitor General when he walked up he did not want any pads et cetera and that reminded us of the period of Sunil Gavaskar, he never had wear headcaps and all that only the skullcap was there. So he didn't start by saying, these Constitutional Orders had the carry the presumption of validity. These are all available My Lords to the states to stand up and say which Your Lordships will of course keep in mind. One, that there is a presumption of validity which they have the burden is on them to show that unquestionably, undoubtedly the only conclusion is what they are canvassing for. The second principle, My Lord, is that if there are two views possible.. if there are two views possible with regard to 370, Sub-Article 3, 

RAKESH DWIVEDI: Then that view should be adopted, which sustains the exercise of power rather than it defeats that exercise of power. So, the burden on them is to show that what they can vest for, is the only view possible. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Dwivedi, which 'IA' are you appearing in? I would just like to... 

RAKESH DWIVEDI:I'm appearing, My Lords, in writ petition 1070 of 2019 and...I'm sorry, IA Number 84479 of 2022, I apologize, in writ petition 1070 of 2019 and writ Petition number 1162 of 2018. My Lord, both of them are, by far the most popular PIL petitioner in the court today. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Nandlal Sharma? 

RAKESH DWIVEDI: No, no, nowadays he is not that popular. Mr. Upadhyay, My Lords.. 

JUSTICE SANJAY KISHAN KAUL: Your arguments, Mr. Dwivedi, have to be very brief. Arguments have to be very brief. Because Mr. Upadhyay feels there is a delay in justice occurring, so therefore, there must be very, very [UNCLEAR] sized arguments. It's his view in public domain.. 

RAKESH DWIVEDI: In fact, one question which has troubled all of us is when My Lord, the Chief Justice asks how much time you will take. So My Lords, now being towards the end, it won't be too long My Lord, but let me see how crisp I can be. So these are the two fundamental basic principles. And in constitutional matters My Lord, it's always possible to take two views. Even if the basic structure doctrine My Lords, was 7:6 My Lords. So these are all always highly debatable. Ultimately, Your Lordships have to decide, which is a better proposition to take place. Just as in that case, what tilted the balance was, that if an absolute power is granted to amend every part of the Constitution, then many of the fundamental values can suffer destruction, My Lords. So therefore, that caused the tilt. But there also Your Lordships did not say - basic structure cannot be touched; It can be abridged, but not destroyed. That was the concept. So coming to 370, My Lords, I have some divergence from what Mr. Salve submitted. It's not in opposition to what Mr. Salve submitted, but some divergence. Yes. In our camp, fortunately, there is little divergence or contrast. Unlike because those who are claiming that that's the only submission while I find a lot of contradictions amongst the lawyers understanding. Some saying something, some trying to say quite opposite to that. But that apart. My divergence My Lords, is about the character of the power of the President. Mr. Sibal said - it is Executive, President's power, Mr. Salve says - it's Legislative. I say that this power is a Constituent Power, much wider than Article 368. The fact that it is vested in the President, is for the special reasons which existed when it was framed. It's a Constituent Power, a power, because Your Lordships and the five Judges judgment say Puranlal Lakhanpal, probably, that modify is very wide in the face. You can say even 136 will not apply. Ordinarily independence of judiciary ultimately touches My Lord 136. It will be struck down as base, while it's in basic structure. So the power to modify and accept under (D) is very wide. My Lord, there are five kinds of constituent powers in the Constitution. The first was the original constituent power in exercise of which the Constitution was framed. The widest term. You can, could have framed anything you wanted, whatever kind of federal structure you wanted. The second My Lord is, the ancillary constituent power. That is something My Lords, like Article 238 was, that for a certain period of time the federal structure stands suspended. The Central Government will control Part B States and develop those structures and see, ensure that it comes up at level. And that's very important. It doesn't apply to Kashmir. That's one thing. But the idea was that the Central Government should take steps to bring it up at par in those States. Part B States. The other was 306.In the Chapter of 'Free Trade and Commerce', where certain States were very much interested in continuing with the power of taxation, particularly My Lord Travancore, Cochin, because being on the port their entire income was found based on the export and import duties. So therefore, 306 permitted for a certain period, those States to impose, levy and collect tax. The 370 is another power My Lords, of that kind. All three, the purpose is to have some time period, some temp period, so that bring it to the level of the normal federal level. Asymmetry, My Lord, is a completely different concept. Some tribal area may be lagging behind, some state may be lagging behind, some state may have some special features so you may for some time allow them certain special treatment. All these detailed provisions, which I read out to Your Lordship My Lord 371G too, dealing with the Northeast and Andhra Pradesh, Mizoram, etc. They have nothing to do with bringing at par. That is to protect the tribals and so on. But these three articles stand on a different footing, and their objective is to give a certain breather, a certain time so that in due course, of course, the manner of alignments, how it will be brought in are different.

CHIEF JUSTICE DY CHANDRACHUD: Article 238 was not limited in time, right?

RAKESH DWIVEDI: No. But ultimately by '56 it was... 
CHIEF JUSTICE DY CHANDRACHUD: It was... 

RAKESH DWIVEDI: It was deleted to be a permanent feature. That's what I mean to say. Under the policy documents, which I will read out to Your Lordships to the relevant portions only, would show that the idea was because there are different Indian States were in a different state of development. Some were so small they could not hardly afford to have a Legislature et cetera. So, a state structure could not be supported by them. So like even in Himachal Pradesh they had to be collected in put in one, so many Union of States had to be carved out. Many small States had to be just merged. They could not afford to have a state. And even those who formed a Union, they hardly had a Constitution there. It required a time period to build a Constitution for the United States. So for various reasons, in various phases, things developed. So finally, the federal structure, which was formed, even at that stage there were pulls and pressures. So certain compromises struck. And these three articles, therefore are ancillary constituent power. They are cont...this is very significant for example, for 370, the process which started with the framing of the Constitution. It was understood that this is to last. They don't fix a time period, though they have put it in Part 21. No specific time period is put there but it is expected that in due course as Nehruji and Gulzari Lal Nandaji said in their speeches as Prime Minister that slowly, B(1), B(2), and D will be used, and the alignment process will happen. And slowly the time will come where really nothing remains, then, but them at par and finish it off. This is meant therefore to slowly align it, bring it at par and terminate. So that continued process and that's why it's an ancillary constituent power. The third is the amendatory constituent power in 368. And in the context of 368,I will just give the paragraphs separately of the different Judges who held that the power under 368 is Constituent and that's why Golaknath was overruled. Though ultimately in the process what was created was the super Golaknath. So the limitations in Golaknath were only fundamental rights, but now it's a much wider domain. Essentially what I rely upon on those portions where the ordinary law and the Constituent power have been distinguished. And the distinction pointed out, is that where you are amending the Constitution, Constitutional provisions, then that power is Constituent power. Ultimately 368... So therefore and if you compare 368 and 370 located in the Constitution in proximity, the width of amendatory power at least as the law stands now, basic structure cannot be amended there. But here so far nobody has paid any heed to the basic structure. 35(a) has come in and a whole lot of things... 136 was applied much later. So Comptroller Auditor General came much later. So all the basic fundamental features were they were missing. So it's much wider than the amendatory power. It cannot be described as an ordinary executive power of the President or even a power which is Legislative in the nature of an ordinance making power. So what Your Lordships deal with today is a constituent power. And this constituent power, My Lord, is laced deeply with elements of Act of State. To illustrate Article 370 Sub-Article 3. If the proviso was not there, which lasted for a few years from '51 to '57, then it is nothing but an Act of State. Anytime He could have said - end to 370. So the Constitution makers instead of leaving it for the State to Act, Supra-Constitutional, to annex a State, they provided a particular procedure, to avoid that happening, so that it happens, as far as possible, with concurrence, consultation, recommendation, and a period of time lapses when it is felt, by the people as a whole, in the country, that the time is right. That's what Ayyangar said. When the time is right, Jammu and Kashmir will stand at par. So who decides, My Lord, when the time is right? 373 will not continue because of emotional reasons My Lord, sentimental reasons. As My Lord Justice Gavai had said that this case can't be decided on sentiments. Sentiments are on both the sides and of variety of kinds. So those sentiments have to be kept outside the doors. It is the President, My Lords, and the President means the Council of Ministers and Ministers who are collectively responsible to the Parliament 

CHIEF JUSTICE DY CHANDRACHUD: Do you call this ancillary constituent power? Because the President has the power to amend the Constitution and its application to Jammu and Kashmir. 

RAKESH DWIVEDI: I say ancillary, only for this reason that it is a continuation of the process which began with the insertion of 370. In that sense, I am saying ancillary otherwise.. 

CHIEF JUSTICE DY CHANDRACHUD: It's constituent according to you, because any power by which you can amend the Constitution itself. Because it says that the President can determine which provisions of the Constitution shall apply with exception and modifications.. 

RAKESH DWIVEDI: Modifications.. 

CHIEF JUSTICE DY CHANDRACHUD: So, the President is vested with the authority to apply or re-fashion the provisions of the Constitution, in relation to the State of Jammu and Kashmir. Consent, concurrence is a separate issue. Therefore, it partakes of a constituent Power, according to you..

RAKESH DWIVEDI: That's right. So not only what the Constitution of India will be in relation to Jammu and Kashmir, because on that depends what the Constitutional ambit will be of the J&K Constitution. As the Lordships head up… please, to observe based on their own Constitution of Section 5, as this expands, that contracts. So therefore, this power is having a direct impact on the reduction of the scope and ambit, the playfield for the J&K Constitution. So it's not only an unusual power, but a power which is of a very wide scope and wide impact, wide consequences, wide ramifications, for the whole of the country. 

CHIEF JUSTICE DY CHANDRACHUD: Very significantly, any modification cannot be brought about by the Legislature of J&K are under the Jammu and Kashmir Constitution. Modification has to be brought about within the rubric of the Indian Constitution. 

RAKESH DWIVEDI: Indian Constitution, that's right. And one of the proclamations, the first one of the Yuvraj Karan Singh, as he then was, was that this Constitution of India will define the relationship between the State and the Union. 25th November, 1949, that's very important. I'm not reading it. Your Lordships have seen that. J&K Constitution was not there, so this Constitution will define, that's a very potent expression My Lords. So therefore, My Lords, it's not an ordinary legislative power and [UNCLEAR] I'm so sorry. 

CHIEF JUSTICE DY CHANDRACHUD: So say if entry 82 of the Union list is applied. The J&K, there's no provision in the... I just took 82 not for any reason. I picked one entry. There is no provision in the J&K Constitution by which they can say that - Look, we don't want 82 hereafter. Because the application or non-application of provisions of the Indian Constitution has to originate within the Indian Constitution. 

RAKESH DWIVEDI: They are asking for anything is insufficient, inconclusive, of no avail. Of course, I am not belittling it ,My Lord. After all two… one State and Union relationship is involved. If a State is asking for something of certainly, My Lord, the Union should consider and give it a thought and if possible accept. But that's a different dialogue. It's not talking and speaking to each other as Mr. Gopal Subramanian, was saying. And lot of talking and speaking and whispering also goes on in political sphere My Lord, in every law, when it is made. Sometimes they meet outside, in the lobbies and sort it out. Or sometimes it goes to select committees and so on. So talking and speaking and whispering and all that is neither here nor there. That doesn't result in a compact. If something two parties go outside and sort it out and then the Bill is passed with some change or without changing. What happened, My Lord, when 370 was being tabled? Your Lordships have seen there was hardly any discussion because the Government said that do not debate too much because the advantage will be taken by the warring State across the border, before UN. There was no debate. And in 1952, Mr. N.C. Chatterjee said that at that time you did not allow us to speak, saying that Pakistan will take advantage of it. But now in '52, when he put up questions, of course Nehruji answered it. We are only, not critical of anything, that one has to place oneself in those times and where it is difficult for us to go on a flashback in these cases. Difficult times. So he answered it then. But those questions were not put. So one can't put reliance on the speech of Mr. Ayyangar or this or that speech of Mr. Sheikh Abdullah. There were divergent interests also, clashing interests also at that time in play. It doesn't detract from the stature of any of the political leaders. Sheikh Abdullah was a great personality, political leader. Nehruji was a great leader. Sardar Patel was a great leader. But what of that? Churchill was a very great leader. My Lord. But after the Atlantic Charter was thrashed out on the seas with President Roosevelt when he was posed with the question, what about India? He said, this charter doesn't apply to the India. They are colonies. It's only meant for France and Poland, et cetera in Europe which lost freedom, and their territory to Hitler. So they're all great leaders but they grapple with their situation in the interest of their nation. And in this case when 370 was being drafted, please bear this mind My Lord these circumstances which were prevailing then. And one more very vital circumstance. We have been hearing My Lords that sometimes, I've read through the Constitutional Assembly debates also, many books also. They all said war is going on between India and Pakistan. What was that war My Lords? Somehow, My Lord, we are still, the lips are pursed and we don't want to speak about the truth. Who was the Supreme Commander of the Armed Forces? Auchinleck. All the three Generals of India were British. All the three generals of Pakistan were British. What was this war My Lords? Churchill had designed there itself that India has to be partitioned. Geopolitics. This war was a British war. They created it on both sides. The raiders came from where? Northwest Frontier province. After two terms, Mr. Cunningham, who had been Governor in Northwest Frontier Province, he was brought back in July. Just before the election, referendum. The raiders were trained, sent on trucks with weapons of Army. Pakistan Army had just been split from India. And the biggest, starkest example is who was fighting My Lords. What is this POK today? Two-thirds of POK is Baltistan. Who fought the war there? Not the raiders. It was Major Brown who was the Regent there. He was posted again in July, just before that by Cunningham. And he… this is My Lord, mutiny. He killed all the forces of Maharaja. Ansar Ahmad was posted there and he was arrested and he.. in four days, he hung the flag of Pakistan and he handed over to Cunningham. He sent some Mr. Alam from Pakistan Army and he took over by Gilgit Baltistan. Where is the war with Pakistan? It is British. But we close our eyes to all these. Then it is the Raiders fighting across borders. Raiders could not by themselves come up to Srinagar. The war had reached almost this Skardu and Kargil. To that closeness to Tibet... Sorry, Leh. So it was a war of a different kind. But nobody could say it because Mountbatten was there as the Governor General. Again must have the leaders, our leaders must... maybe having some reason that even though Jinnah said, I will not accept any British Governor General. But the party said no, we are ready to accept the Governor, you continue with Indian Governor General. So what is this war, Governor General? And not only this. When the war began, what they constituted a Defence Committee of the Cabinet. And Mountbatten was made the Chairman of that. Excellent situation, Mountbatten is Chairman of Defence Committee. Auchinleck is the Supreme Commander of Forces. All generals are British and one Britisher and is mutinying. And when he returns to England, he's given the Medal of the Britain Empire, so that's the position of the war. So when you read the Constitution and 370, please bear in mind these things, in what circumstances, our leaders were moving through. And when we were about to push them back, My Lord and back and recover the territory, they deliberately stopped the war at a point of time and got the reference to the United Nations, because if we had gone up to Mirpur and behind, then that connection would have been off with Gilgit Baltistan. Now these are hard facts, nobody can dispute it. It is in these circumstances My Lord. And what was the United Nations, the same very power which for geopolitical reason, the US and UK, which wanted to partition India, they were made the Arbiters. Fortunately for us to Pakistan refused to vacate POK. So that resolution is dead. There's no need talking about United Nations. But at that time look at the enormity of the situation. In which 370 has been... we can't interpret it, therefore, My Lord with...a tool of... interpretative tool toolbox. Maxwell cannot answer this. [UNCLEAR] cannot answer this. Grace cannot answer all this. None of the judgments so far which have been delivered in this court are helpful at all to reach a conclusion except Sampath Prakash, which dealt with to some extent with the situation after the expiry of the dissolution of the Constituent Assembly of Kashmir, that in that alone. Rest are all in different contexts, principles we can help, take help of, but this situation if lost sight of, creates problems at both ends. You accept their contention. Then this becomes permanent. There is a proviso under 368. We can't amend it. Go by the root of 370 and 370 is permanent. And therefore, My Lord, we are left at the mercy of the local vested interest, which does not always coincide with people's interests there. So you...therefore, look at the consequences of both sides. On one side, if you accept our submission, the right of the people of Jammu and Kashmir gets expanded and they don't suffer, My Lord. Right to property is a matter of the rich and the neo rich, My Lord. The poor people there hardly are..19(1)(F). They are hardly concerned. But even those smaller people, who have small houses, etc.,. So certainly it has meaning. But then 300A is there, which virtually subsumes. Now it's a human right, under the Constitution. So nothing is lost. Not even 19(1)(F). Nobody can confiscate because of 300A. So, 31.. and may not be exactly at par with 31, but substantially it is there. So nothing is lost. They are put at par. The basic structure of federalism is protected. I don't know how the submissions were made that 'Federalism', is affected. So keep it in mind. This is 'Federalizing', at par. 

CHIEF JUSTICE DY CHANDRACHUD: According to them, federalism is affected because you reduce from a State to a Union Territory. 

RAKESH DWIVEDI: Unless you accept asymmetry is basic structure, then they are affected. Asymmetry is never a basic structure. They are for special conditions. A symmetrical dealing with a state.. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Dwivedi, this matter apart, the existence of 9 a State is a very vital element in the federal. 

RAKESH DWIVEDI: I am not on the.. 

CHIEF JUSTICE DY CHANDRACHUD: The existence of a State, the continued existence 14 of State is integral to federalism in India. 

RAKESH DWIVEDI: My Lordships, I will humbly request Your Lordships. I'm dealing with C.O. 273. 272, which deals with 356, some of that has been answered by the Solicitor General or whatever. Your Lordships will consider that. Supposing My Lords, for a moment, for my submission, please assume that 272, and the Act is not there. Because it's my case, what I am canvassing for is, irrespective of 356 invocation and Article 3 invocation, 273 is sustainable on the angle of 370 main part itself. It says that Parliament is recommended and we are passing it. Obtaining the recommendation of... 

RAKESH DWIVEDI: So far as involvement of Parliament is concerned, it comes in two ways. One is the...... 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Dwivedi, just to sort of break a little bit. You spoke of, there were five constituent powers. 

RAKESH DWIVEDI: Yeah. The fifth one I have mentioned. 

CHIEF JUSTICE DY CHANDRACHUD: We got third. We have the original constituent power by which the constitution came. Second was ancillary constituent power. The third was amendatory constituent power. That was the third. 

RAKESH DWIVEDI: The fourth My Lord is like the provisions, like Article 3 and 4, where amendment of schedules relating to states and their structure, et cetera, Article 3 and 4, they can be altered and by a law of Parliament, and it is provided that they are not to be treated as Amendment under Article 368. 

CHIEF JUSTICE DY CHANDRACHUD: Then can that be treated as a constituent power 7 at all if it's not an amendment to the Constitution? 

RAKESH DWIVEDI: No.If they are amending the schedule to the Constitution. Their levels 10 are different. 

CHIEF JUSTICE DY CHANDRACHUD: But the Constitution tells that it's not really an 13 amendatory power. 

RAKESH DWIVEDI: So therefore, I'm saying that these are the five different ways in which 16 the power is being conferred. This is one another way... 

CHIEF JUSTICE DY CHANDRACHUD: Alright. 

RAKESH DWIVEDI: Where they say that you can make a change in the Constitution... because my postulate is that every change in the Constitution itself if brought about is a constituent power. 

CHIEF JUSTICE DY CHANDRACHUD: Alright. That's the fourth? 

RAKESH DWIVEDI: And the fifth is My Lords, Article 1(C), where this court has held that if you acquire some other territory then it says...no, I'm sorry. Article 2, My Lords. two. 

CHIEF JUSTICE DY CHANDRACHUD: Two, two.

RAKESH DWIVEDI: I'm sorry My Lord, Article 2. 

CHIEF JUSTICE DY CHANDRACHUD: Parliament may, by law.

RAKESH DWIVEDI: Yes, admit new States on such terms and conditions that it thinks fit. Again, My Lord, very wide. So while admitting the A,B or C country let's say My Lord, some bordering city of China My Lord. They are very interested in naming our cities My Lord. If that is admitted just aside My Lord. [UNCLEAR]. So if it is admitted, then My Lord the terms and conditions can be fixed. 

CHIEF JUSTICE DY CHANDRACHUD: Therefore, your argument is that the exercise of the power in the Article 370 (3) is a constituent power exercised by the President. 

RAKESH DWIVEDI: So Your Lordship's judicial review has to be on that basis. And when 8 the Lordships expound 370, it has to be with that in mind, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: The level of deference would be much higher 11 than even the level of deference to an ordinary piece of legislation. 

RAKESH DWIVDI: Ordinary piece of legislation. Executive Order, then Wednesbury Principles and every, all those things will come in, whether Your Lordship will bear judicial restraint, that's on the other side of it. 

CHIEF JUSTICE DY CHANDRACHUD: That's the exercise. 

RAKESH DWIVEDI: Yes. If it is legislative. And as Your Lordship put Article 14. How it will come, whether it will succeed or not is quite another thing. But amenable if Your Lordship But if it is constituent power, My Lord, which is continuing and is part of the Constitution making, part of federalizing. This is part of Constitution making, part of federalizing Jammu and Kashmir at par with other states. I will read two State policies one by one place similar before the Constituent Assembly by the State Department and the other the speech of Sardar Patel, where they spelt out the policy. This was a departure from that policy. And departures, My Lords, are not permanent. They can never be permanent. The policy is, states, that is the Indian States and the British Provinces under the Government of India Act should be brought at par, at equal level, that was the policy. And placed in October and November 49, just before the adoption of 370. 30 So 370 was a departure being made because of circumstances, political pulls and pressures and the circumstances which I narrated. So therefore, you have to therefore, consider this as a continuing process which was meant to be terminated and 75 years is a pretty long time for federalizing Jammu Kashmir at par with other States. That means that the power was rightly vested in the President and was properly exercised by them. It was not that in 1957, one may ask that if my contention is accepted, that immediately after dissolution of JKCA the President could have terminated. Yes, he could. It's a high political policy. It's an Act of State. There were some States where forces were sent. That can't be questioned that how Hyderabad was brought, how Junagarh was brought in. How a referendum was done. All those things are in the past and they were Act of State. Mr. Sibal said - had there been another route 

CHIEF JUSTICE DY CHANDRACHUD: Act of State is Executive, right? 

RAKESH DWIVEDI: So Executive.. nothing prevents the Constituent Assembly from putting a power in the Constitution itself. So that it is...what was expected was that the Constituent Assembly when it sits, it might well take a decision that please align us at par, the recommendation part of it. The proviso was merely to enable the JKCA to look at the advantages of the Federation. 

JUSTICE KHANNA: Mr. Dwivedi, What was pointed out by the other side was... 

RAKESH DWIVEDI: Yes. 

JUSTICE KHANNA: When you frame the Constitution, when you enact the Constitution then it's probably exercising Constituent Power. What happens thereafter will be either in the realm of Legislative Power or the Executive Power, if you go by this... 

RAKESH DWIVEDI: That's not right. And that's my contention. They are not correct in that. It's not always that 368 is not purely Legislative and Executive. 

JUSTICE KHANNA: You are equating 368 also to constituent power, yes? By saying that it is also a constituent power. That way it is. Whenever you will be amending the Constitution, you'll be making changes in the Constitution. But that exercise cannot be equated with the Constituent Power for the simple reason, constituent power has the power to go from a scratch from zero point. 

RAKESH DWIVEDI: Not necessary. Amendatory Power is Constituent.

JUSTICE KHANNA: Yes, amendatory power is certainly there. 

RAKESH DWIVEDI: This is amendatory, My Lord, you can...much wider. 

JUSTICE KHANNA: No, the question is not that. The question is, can the amendatory power under 368 be taken to the level of constituent power as to both... 

RAKESH DWIVEDI: I never said that, My Lord. 

JUSTICE KHANNA: You're not saying that

RAKESH DWIVEDI: No. 

JUSTICE KHANNA: So what you are saying...therefore, they're really speaking is jurisprudentially there won't be any difference. 

RAKESH DWIVEDI: There won't be My Lords. The nature of power is completely different that just to be realized, an Executive Power of the President... for example, he recommends financial bills should be passed. That's a different kind of power. 

JUSTICE KHANNA: That's correct. 

RAKESH DWIVEDI: So, the President has a whole lot of role to play under the Constitution. All roles are not at par. For high policy reason this was given. This proviso to 368 is because the Government of India did not want to go through the route of 368 every now and then. So if you want to do away with 370, go to 368, then two-thirds majority and then maybe somebody will say State is affected, so ratification by majority of States. So an easier... because the policy was to put at par. Therefore, it was since the policy is given, alignment is the question. Alignment may take such time as the circumstances permit. Nobody can predict how much time it will take. So this was provided here. Keep also one more aspect in mind. The framers of the Constitution knew that a President of India is a continuing office. It will not lapse after any point of time. Whether it is part of basic structure or not. But even if it is not, nobody expected that the President of India Office, high office, in which the Executive Power vests will vanish. So it was a continuing power. They also knew that Jammu and Kashmir Constituent Assembly is an ephemeral institution. So they had two institutions, one permanent, one ephemeral. They are being brought in into a relationship in 373 with a not-withstanding. So, now My Lord, ephemeral ...expiry of an ephemeral institution impacts the permanent institution of the President. That can never happen. If that were the intention, what was so difficult in 370 for to add a few words that with the expiry of the JKCA, if I may use this short, JK Constituent Assembly, then My Lord, the main power will also lapse. The farmers are very well aware of cessation of certain exercise of power after certain period, be it 356, 352, ordinance making power....place in six months, if you don't place, it will lapse. My Lords have dealt with in Krishna Kumar Singh. Even 249. So there are so many situations, they are aware. They are casting the languages of different provisions with this expression, that it will seize, for different reasons in different cases. Why is it that they are refraining here? Certainly it could not have been in their mind, My Lords, that this will remain for all times to come My Lord, till eternity, the relationship of Jammu and Kashmir State, as a federal unit with India, will remain different for no reason whatsoever. And as My Lords had put a query to them, if I may just adopt that, supposing My Lords, through the route of, with concurrence and consultation, everything has been adopted. So, why do we want to keep this relief? For sentiments My Lords? So it has to go someday, My Lord, somewhere. And what is it that remains? Today it may not be a shell, but close to a shell. And my learned friend Zaffar Shah said - we have sentiments. Yes, we understand that. If I live for too long, a lot with a particular provision, there will be sentiments, My Lords. No difficulty, My Lords. We appreciate that, we honour that, we respect that sentiment. But equally, just a human life, My Lord, a time comes when you have to bury it. We have emotions, we have sentiments, but we have to bury, we have to cremate. So that's what is in mind, My Lord. Then, please, therefore, Your Lordships, are acting as a part of a Constitution-making process. This adjudication, is not apart from… the completely disjointed and disregarding that process. Most of other things Your Lordships have already noted, My Lord, this 'temporary here', 'temporary that' heard. They say marginal note. Somebody says, temporary is only object, not the time period. This is not the way My Lords. Your Lordships in Bommai have construed. Sometimes Your Lordships take help of the marginal note, sometimes Your Lordships doesn't My Lord. But here My Lord, the conglomeration of 370, along with all other provisions originally there. I am excluding the special provisions. All the provisions were temporary. Somewhere time period was fixed, somewhere time is not fixed, but all intended to lapse. There are temporary provisions elsewhere also, like 306. So they are meant to go. Don't hang on it. Nobody hangs on My Lord, a body which is just a shell. It causes only... My Lord, I can understand people with good intention, they respect that emotion. There will be a host of other people who will take advantage of that. And in Kashmir, they have taken it. There have been time and time again calls for plebiscites, independence. In fact, in 1964, just before his death, the Prime Minister Nehru, he had sent Sheikh Abdullah, brought him back as Statesman, sent him to Pakistan with a message that you be a bridge between India and Pakistan, and he was going to be POK, when Nehruji unfortunately expired. So he had to return from there. So, I mean that emotion which is created at that time in '52, '53. Why will a person be kept in a jail for 18 years long. He suffered. Yes. He contributed to India, but he stood also with his own emotions. We all respect all those emotions My Lord. Nobody condemns an emotion in human life, in a nation's life, in a state's life. These emotions arise and die. So for emotional reason, My Lord, 370, I think it's time to bury and that's what was intended when the framers brought in 370 and that's how it is,373. Therefore, C.O. has to be upheld My Lords. Now look at it once more, My Lord. We are like seven men and the blind men and the elephant My Lord. So we are all putting our perspectives with Your Lordships, My Lord. So Your Lordship will kindly receive that and find out what is the whole integrated whole. is a small question. Your Lordships have been putting the question, My Lord. So far as JK Constituent Assembly is concerned, there are only two provisions - 372 and 373 proviso. In one, JKCA doesn't come. As My Lord Justice Khanna has pointed out, it is between executive and exec, the President and the Government of State. Now kindly see, why is there My Lord a difference between the language of 2 and 3? The first point My Lord is that the proviso refers, when it refers to Constituent Assembly of the State, it refers to Clause 2. Recommendation of the constituent assembly of the State referred to in Clause 2, shall be necessary. Now Sampath Prakash has very positively held that, that is dissolved, matter ends, power continues. Now it is the same Constituent Assembly which is contemplated in the proviso. Not different. So on a parity of logic that judgment, the reasoning of that judgment, of course, they were dealing only with 2, not 3, so in that sense it is different. But the logic on parity is available, and therefore I submit that that concludes the matter virtually. Sub-Article 2 is dead. Defunct. But Sub-Article 1 continues, that is Sampath Prakash. Likewise, proviso is defunct. The main part continues. And My Lord Justice Kaul, has in that Shah Faesal case applied Stare Decisis. The doctrine of Stare Decisis, of course, is not an absolute principle, but in this case, an attempt was made without success. Now that apart, My Lord, Kindly see while says - 'If the concurrence of the Government of the State referred to in 1(B)(2), or second proviso be given before the Constituent Assembly for the purpose of framing the Constitution of India as convened, it shall be placed for such decision.' The word is 'decision' here. Why it is 'decision' there and 'recommendation' here? Perhaps, My Lord, there is one reason which I wish to place. And if it commends to Your Lordship, it is a decision here because what is being considered by the Assembly is the concurrence given by the Government of State. Concurrence, if Your Lordship comes back to the first B(2)- 'Such other matters in lists with the concurrence of the Government of the State.' The concurrencies of the Government of the State and the decision is to be given with regard to the concurrence, no decision has to be given with regard to the order passed by the President. The Presidential Order, whether it collapses because of the decision, is a question which is not arising...hypothetical question... but the decision is, JKCA is a superior body to the Government of the State. Therefore, the word 'decision' has been used. When an order passed by a subordinate goes before the higher authority, then it is either a decision or an approval. The concurrence of the Government of State of JK goes before the Pres... the JKCA. Therefore, the expression used is 'decision'. But when it comes to the proviso to 3, the President is not subordinate to the JKCA. He exercises the Sovereign Democratic power of the Republic of India. Which is constituent in nature. There are two constituent powers in play. One superior, one subordinate. Therefore, the expression is used is 'recommendation'. A recommendation of an inferior authority when it goes before a superior authority can never be binding. [NO AUDIO]Even if the Constitution says there's a prerequisite. [NO AUDIO] That also if the body is a temporary body. 

CHIEF JUSTICE DY CHANDRACHUD: So according to you, the word 'recommendation' in the proviso refers to the existence of a recommendation and not the nature or the content 8 of the recommendation? 

RAKESH DWIVEDI: That's right. I'm putting a question to myself. Supposing the JKCA had recommended a particular provision, a particular structure for the Executive or for the Legislature of the State or let's say, suspension of fundamental rights. Will it be open to the President or not as a Constituent Body to say 'no'? How can it be forced upon him? And he said you will suspend, delete Part 3 for Kashmir. Hypothetical. Part 3. 

01.09.2023

RAKESH DWIVEDI: My Lord, yesterday, I had made submission that there are five 14 constituent powers.

CHIEF JUSTICE DY CHANDRACHUD: Yes.

RAKESH DWIVEDI: And though My Lords, they are not at par, they are not at par with the original constituent power of the framers of the Constitution, My Lord Justice Khanna had put that query, and these powers are derived from the specific provisions of the Constitution. Therefore, they cannot be that unlimited as the original. But that's not the question, My Lord. Here the question, why I drew attention to the constituent powers was this, that looking at the nature of the power under the main part of 373, the proviso ought not to be construed, therefore, that with its lapse the constituent power lapses. That was the intention, My Lords. Otherwise, yes, proviso is a limitation so long as the JKCA is alive. It's death does not mean the death of... or defunctness does not mean the defunctness of the main power. Now the other thing is, My Lord, one more reason and that is My Lord, that since the policy of the framers of the Constitution and as reflected in the Constitution of India itself is to have federalism at par for all states. That is the basic feature of the Constitution. That and that alone. Not the asymmetries or the differences or the diversities which happen on account of special conditions of that area. Any power My Lord, of difference which is founded on special conditions can never be permanent. Because the moment the conditions will change, those provisions are apt to change. So, there's no point taking us through all those provisions, relating to the Northeast, etc., or the tribal areas. Nobody claims permanence for them. They can always be amended. They came through the route of 368, they will go by the route of 368. Here the problem is 368 is barred and it says sign post is go to 370 proviso. Now this power to Transcribed by TERES 3 federalize at par, therefore, is a core idea of the basic feature of federalism. So the main part itself My Lord, represents a power which is a core part of the basic feature of the Constitution. That can't disappear because some subordinate body comes to an end. Now, so far as constituent power is concerned, I will not read My Lord, Your Lordships are well aware of Kesavananda Bharati. May I just give the paragraphs on which I am relying. Justice Hegde's Judgment, Justice Sikri and Justice Shelat did not express any view on Golaknath My Lord, perhaps because they were members of Golaknath and ten judges overruled it. Justice Hegde, My Lord, this paragraph 640, 647 and 674. 

SANJAY KISHAN KAUL: Repeat the first two paragraphs again. 

RAKESH DWIVEDI: 640, 647, 674. And 647 is the note of the 'Objective Resolution' for arriving at... that is the additional factor. Then Justice Ray, para 783, 797, 819...

JUSTICE B.R. GAVAI: Can you repeat Mr. Dwivedi? 

RAKESH DWIVEDI: Justice Ray, para 783, 797, 819. Then Justice Jagan Mohan Reddy 1121 and 1124. Justice Palekar, paragraph 1231. 1231. Justice Khanna, paragraph 1378. Justice Mathew....

JUSTICE SANJAY KISHAN KAUL: Just repeat Justice Khanna's paragraph. 

RAKESH DWIVEDI: Justice Khanna, 1378.

JUSTICE SANJAY KISHAN KAUL: Yes. 

RAKESH DWIVEDI: Then Justice Mathew 1573, 1580, 1603, 1715. Then Justice Dwivedi is 1876 to 1878. That is 1876, 1877, 1878 . 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Dwivedi, paras 1876 to 1878 bind you completely. 
TUSHAR MEHTA: Yes, you cannot take a different view.

RAKESH DWIVEDI: Sir, I am not taking. And then Justice Y. V. Chandrachud.

CHIEF JUSTICE DY CHANDRACHUD: I should have realized that was coming. 

RAKESH DWIVEDI: 1876. My Lords, Your Lordships noted 1904 also in Justice Dwivedi? 

CHIEF JUSTICE DY CHANDRACHUD: 1904.

RAKESH DWIVEDI: And Justice Y. V. Chandrachud, 2068, para 2068. 

CHIEF JUSTICE DY CHANDRACHUD: And what is the principle which you are relying 9 upon?

RAKESH DWIVEDI: They described what is a constituent power? So the power which enables amendment of the provisions of the Constitution, be it a derived constituent power, it is the nature is constituent. The fact that it rests in Parliament, or it rests in the President being a head of the executive, will not make a difference. The nature of power, it's certainly not similar to ordinance making power. Ordinance making power is specifically expressly said to be having the force of the law made by Parliament, 123 and 213. 

CHIEF JUSTICE DY CHANDRACHUD: In fact, the ordinance making power would support your submission, because the fact that a power is not vested in Parliament, in this case, the legislative power, the ordinance making power, is not dispositive of the nature of the power. 

RAKESH DWIVEDI: Yes.

CHIEF JUSTICE DY CHANDRACHUD: It's not the institution which wields the power, but the nature of the power, which is crucial.

RAKESH DWIVEDI: That's right. I'm grateful My Lord. One has to consider the nature of 29 the power, not who is wielding it. 

CHIEF JUSTICE DY CHANDRACHUD: For instance, one of the exceptions to the doctrine of separation of powers is the legislative power which is vested in the Supreme Court to frame its own rules. It's also regarded as legislative in character. 

RAKESH DWIVEDI: It is and it is original flowing from the Constitution, not otherwise. 

CHIEF JUSTICE DY CHANDRACHUD: Likewise, Parliament has the power to punish for 2contempt of itself. 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: So that is in that sense, not a legislative power, it's a judicial power, which is wielded by Parliament. So according to... 

RAKESH DWIVEDI: There is no access of separate. 

CHIEF JUSTICE DY CHANDRACHUD: 370 itself is a constituent power. 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Because it the power to amend the application of 16 the Constitution to Jammu and Kashmir. 

RAKESH DWIVEDI: Then with regard to other submission which I made was about recommendation. I will not repeat that why recommendation should be considered as binding. But just to compare My Lord, Chief Justice had, last occasion. If Your Lordship looks at Article... money bill, of course Your Lordships saw but that's the different, that goes to Rajya Sabha expressly mentioned that Lok Sabha is not bound. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: So, money bill provisions are 109 and 198. Then there is a disqualification provisions, i.e. Article 101 and 192. Now please see 101, though the word is not recommendation, the word is opinion. If there is an issue of disqualification... I'm sorry, not 101, 103 My Lords, 103. I apologise. 103. 103(1) makes the decision of President final but (2) says before giving any decision. I'm drawing My Lord's attention to (2). Before giving any decision on such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. Mark this last expression. So where they want that My Lord, is some other body, whether inferior or at par or superior, is not material but, of course it is disqualification and a decision given by the Election Commission. But they wanted that the President should have no other discretion left. He has to act. Now these words are not deployed in 373. Now similarly when we come to finance bill, that is Article 117 and 207, 207 is for the state. Sub-Article 1 of 117, a bill or amendment making provision for any matter specified in Clause A to F of Clause 1 of Article 110 shall not be introduced or moved except on the recommendation of the President and a bill making such provision shall not be introduced in the Council of States. Now, this is a perpetual provision, My Lords not a temporary one. And the proviso says, provided that no recommendation shall be required under this clause for moving of amendment, making provision for the reduction or abolition. Now, My Lords, very interestingly the bill is to be placed by the Cabinet, the Council of Ministers and the recommendation is to be made by the President, which is also Council of Ministers. Now this is relevant, My Lord for. Article 3. So our framers do contemplate situations where My Lord, the Council of Ministers is at both the ends. At one end it speaks to the President, the other end it's the framer of the bill and places it before the House. 

CHIEF JUSTICE DY CHANDRACHUD: And President is acting on the advice. 

RAKESH DWIVEDI: Advise My Lords. In a way it may appear to be superfluous, My Lords, because if the Cabinet has to place it straight away proceed, because the President, in any case has to sign it and recommend. But the situations are different. Similar is 173 a bill which if enacted and brought into operation would involve expenditure from consolidated funds, shall not be passed by either House unless the President has recommended to them. 

CHIEF JUSTICE DY CHANDRACHUD: The reason why it was said that the President must recommend and not the Council. So, that's really what it means because under Article 84 the Parliament consists of the President and the two houses of Parliament. 

RAKESH DWIVEDI: Yes, yes. 

CHIEF JUSTICE DY CHANDRACHUD: The Parliament doesn't consist of the Council of Ministers because the Council of Ministers are all Members of Parliament. 

RAKESH DWIVEDI: That's right, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: But the President is a part of Parliament. 

RAKESH DWIVEDI: But all bills don't go through the President. 

CHIEF JUSTICE DY CHANDRACHUD: They don't. Only money bills. 

RAKESH DWIVEDI: Only money bills. Sort of, perhaps it was intended to be an additional precaution that the President may look into it may perhaps exercise his power under Article 75, etc. To divert it and ... 

CHIEF JUSTICE DY CHANDRACHUD: So, you don't specify the Council of Ministers because they are part of Parliament individually, they are member of Parliament. 

RAKESH DWIVEDI: Absolutely. Correct. 

CHIEF JUSTICE DY CHANDRACHUD: So, recommendation you have shown as 1-0... 

RAKESH DWIVEDI: Now kindly see 146 (2). Now, this is a case, My Lords, which My Lords 14 were referring about the rules, power of the Court. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: Now, this is not from a superior to an inferior or something. Here the approval is required because of financial implications. 146(2) and for High Court, it is 229(2). Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or Officer of the Court authorized by the Chief Justice of India to make rules for that purpose, provided that the rules made under this clause shall, so far as they relate to salaries, etc., require the approval of the President. It can never be argued My Lord that if this, supposing this proviso is deleted by the route of 368, to ensure greater independence in financial matters, will the main part die, My Lords. Are they rolled into one? 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: So, the fact that the proviso says is, the main part says is....and one very great argument, Mr. Gopal Sankaranarayanan had raised, drawing My Lord's attention to the 'colon'. In 373 also, it exists. Perhaps to suggest that they are rolled because there is a 'colon'. Therefore they are rolled into one. Every proviso in the Constitution of India, I have gone through. There are several provisos, in various articles. All of them My Lord, have a 'colon.' And colon in grammatically indicates only an addition. Nothing more. Every proviso Lordship may see... In fact in 146(1) itself, there is a proviso... colon... nowhere Your Lordships shall find any other... a full stop or a comma or a semicolon. It's always colon. Because it's addition. Generally as a rider... The rider goes, the main part expands. So if the proviso goes, My Lord, in 146(2) , then the main part, the power of this Court will expand. No need for approval. And the last part of this section of my submission is, that so far as Parliament is concerned, the C.O. 273 does not refer to 367, et cetera. Or 356. It only says exercising the power under 373 and acts on the recommendation of Parliament. Now Parliament, My Lord, can come through the route which the Union adopted. That's one part, my learned Solicitor General has already submitted. I'll not repeat at all on that. I adopt that My Lord and nothing which I say detracts from that submission. But an additional submission is that, the President means Council of Minister and Council of Minister means collectively responsible to the Parliament. So, Article 53 read with 73 and read with 75 (3), they, My Lord, Council of Ministers can go to the Parliament any time for it's... obtaining it's views. So, the fact that Parliament's recommendation has been obtained, Parliament is not a foreign body. The Parliamentary rules My Lord, any issue can be brought before the Parliament, resolutions can be passed, the views can be obtained. So, we need not go My Lord, in my respectful submission, of course that stands... But irrespective of that, independently of that, the obtaining of the recommendation is not foreign to the exercise of power under 373. Because of these three provisions taken together. 

CHIEF JUSTICE DY CHANDRACHUD: Can you re-formulate that? 

RAKESH DWIVEDI: The submission is that, Parliament's opinion, recommendation or views for exercise of power under 370, Sub-Article 3, can be obtained by the Council of Ministers on account of the provisions of Article 53, 73 and 75 Sub-Article 3. Since Council of Ministers is responsible to the Parliament. So, it can always go to the Parliament My Lord. In fact, that's the best route to go to the Parliament. It's a big decision being taken, so the whole of Parliament is being taken into confidence. Instead of rushing through any executive forum alone. There the voice taken together, both the houses, the voice of the people of the whole country is heard, including the Member of Parliament of Kashmir, who are also represented in the Council of States. So, therefore C.O. 273 is sustainable on its own. One small aspect My Lords, let's take the submission of the Petitioners at the highest. What are they trying for My Lords? This permanence, which they are seeking, is for what? According to them Sampat Prakash Sub-Article 2 is already defunct. According to petitioner's submission, main part proviso rolled into one. Therefore, whole of 3 is defunct. A, of course 238 itself has gone, is defunct. B(1) only My Lord, and B(1) has a very narrow scope. Please have B-1, once again, I have a slightly different take on B(1). B(1) is not for determining the matters irrespective of the list. What matters have been specified in the Instrument of Accession are to be determined by a reading of the Instrument of Accession itself. Nothing can be taken away from that. That is final, sealed. What B-1 is limited to discovering which of the entries are corresponding to those matters. There are matters specified in the IOA, there are matters specified in the three lists, which are corresponding. It only discovers the entries, there is no power at all to... vested in the President to act in consultation to detract from the IOA surrender. If defence has been surrendered, then it has to be exercised as per Constitution of India, wherever the power is, only the entries has to be located. And that power cannot be controlled. You take away residuary power or do whatever. Subject matter of defence is surrendered by that, and therefore, this Central... Union Government will exercise full powers with regard to communication, etc., entry or no entry. 

CHIEF JUSTICE DY CHANDRACHUD: Because there may be more than one entry... 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: In the Union List or Concurrent List, which corresponds to a head in the Instrument of Accession. 

RAKESH DWIVEDI: That's right. 

CHIEF JUSTICE DY CHANDRACHUD: The Instrument of Accession was prepared at a time when the Constitution was yet to be framed. 

RAKESH DWIVEDI: Yet to be framed. 

CHIEF JUSTICE DY CHANDRACHUD: Therefore, it used broad expressions, defence, external affairs, communications, and it had various sub-heads, as we saw yesterday, you showed us that. 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: For instance, defence. Now just take one example only. Defence in the Union List covers entry 1, Defence of India. Entry 2, Naval, Military and Air forces. ... 2A, deployment of any armed force, which given the 42nd amendment and, Naval Military and Airforce works. , Arms, Firearms, Ammunition and Exposure. So, it was basically, what the President had to do was look at the entries in the list and see which of these entries corresponds to what the IOA has said would be the domain... would be the domain of the Dominion of India. 

RAKESH DWIVEDI: And consultation came in for a reason, historical reason because when Cabinet Mission plan was being considered, then primarily Nehru ji and the Congress itself wanted to keep it loose and they were all the time, contending that these expressions are only categories of entries, matters. It's not one matter, defence. There are a whole lot of other things, but if you want to defence, you will need finances for the defence. So, he was interested in expanding and centralizing, more power to the Centre. So, there was one thing that therefore you consult, get their views, okay. So, consultation is a weak expression, it doesn't bind the President at all. However, that's the difference which I pointed out, that this is only to discover the correspondence but it cannot detract from the surrender in the IOA. Now since that has been done, this is also defunct. 

JUSTICE SANJIV KHANNA: Just one minute. 

RAKESH DWIVEDI: So, what survives is B(2) and D proviso-2. Even the first proviso correspondence... 

CHIEF JUSTICE DY CHANDRACHUD: What survives according to you is B(2)... 

RAKESH DWIVEDI: And D proviso-2. I'm taking the case of Petitioners, not according to 24 me, My Lords. According to them. 

CHIEF JUSTICE DY CHANDRACHUD: No, we are testing that hypothesis. 

RAKESH DWIVEDI: Yes, we have to test, what is it you are gaining? What are you wanting? Aiming at? You seek permanence for B(2) and D P-2. Proviso-2 

CHIEF JUSTICE DY CHANDRACHUD: Sorry, just come again. B(2), and D proviso-2? 

RAKESH DWIVEDI: Yes. And over the course of years, almost all institutions of the Union have been applied, very little remains in B(2) and D(2). So, permanence for that. It really leads to the principle that we should avoid absurdity. It's a reductio ad absurdum. My Lords, the second vital question, which arises with regard to 370, is what is the status of the Jammu Kashmir Constituent Assembly, and the Constitution of Jammu Kashmir? If I may use JKCA and COJK, My Lords. And there are two contending thoughts, once again, the choice is between these two. We are saying that the source for creation and disappearance of the JKCA and the COJK, Constitution of Jammu Kashmir is Article 370 itself. Whereas, the Petitioners contend that the source for these two bodies flows from the Crown of Hari Singh, that is to say, residuary sovereignty, remnant sovereignty or internal sovereignty. Three expressions have been used by three different counsels. 

CHIEF JUSTICE DY CHANDRACHUD: What are the expressions? 

RAKESH DWIVEDI: Residuary sovereignty, remnant sovereignty or internal sovereignty. 

JUSTICE SANJIV KHANNA: Shared sovereignty. 

RAKESH DWIVEDI: Shared, which my friend Nithya used, has a different connotation. We are all sharing. We are all co-sharers of sovereignty. Every individual citizen is a co-sharer. I have no problem with sharing of sovereignty. 

CHIEF JUSTICE DY CHANDRACHUD: Residuary sovereignty, remnant sovereignty and 19 the third? 

RAKESH DWIVEDI: Internal sovereignty. 

CHIEF JUSTICE DY CHANDRACHUD: Internal sovereignty, yes. Dr. Dhavan said that. 

RAKESH DWIVEDI: And from this idea of remaining balanced sovereignty there was a further, My Lord, concept introduced bilateralism or compact. There are two sovereigns now, one remnant and one the main sovereign. So the two sovereigns are talking to each other, whispering to each other... all that theory, My Lord and compact and bilateralism emerges. So the choice is between these two, My Lords. If you accept that some sovereignty remained after the signing of the IOA and some sovereignty remained after agreeing proclamation, My Lord, that of Yuvraj Singh that relationship between Union and the State will be defined by the Constitution of India as applicable to. Then that expression is very potent, you don't have to go out of Constitution of India. It is defined by the Constitution of India as applicable, whatever it may be applicable, but it is to be found within the terra firma of the Constitution of India. This methodology, My Lord, just let us have a look at what is the Constitution of India telling them. Note two things, My Lords, which are expressly in 370, first, the first is the explanation and the explanation applies to the whole of the Article, not only Sub-Article 1. In terms it says for the purpose of this Article, the Government of the State means so and so. What is it doing, My Lords? 1,It is substituting the Maharaja for Maharaja acting on the advice of Council of Ministers. So, the monarchy is dead. The popular rule, came, My Lord, when the Maharaja came, My Lord when he was neck deep in trouble on 25 October 1946 when the war was there, everything was virtually being lost. He had virtually nothing left for sovereignty My Lord. And it is on that Crown, My Lord, which they are, the sinking Crown on which the Petitioner's submissions are banking. However that Crown also, My Lord, Nehru ji first said that you release Sheikh Abdullah and popular Government. He was released he was made the Prime Minister and on his advice, it was not simply Hari Singh, it was both the popular Government and Hari Singh, My Lord, who agreed to the accession. So the people's voice was also there. And the explanation leaves no room of doubt that the Maharaja is not to act on his own view, opinion, discretion, but act on the advice of Council of Ministers for the time being in office. 2nd, My Lord, even the Maharaja has to be recognized, that person who is recognized by the President of India. So, when Yuvraj, My Lord issues the third proclamation in 1951, that is after the Constitution of India came into force, he was acting on the advice of the popular government in terms of the explanation to convene... to constitute and convene JK Constituent Assembly. The next question, would be what is it? For what purpose are you constituting? And the purpose is spelled out by Sub-Article 2. So, the Constitution envisages that, this Assembly is for the purpose of framing the Constitution of the State. The third thing, My Lord, is in framing of the Constitution, the JKCA is not the... does not enjoy the freedom which the Constitution... the Constituent Assembly of India had. It was bound by several things. First, it was bound to frame the Constitution in a manner that this Sovereign, Democratic Republic of India... that's not adversely impacted and at the moment I'm not relying upon the Doctrine of Basic Structure, which came later. But even as it stood in 1950, 26th of January, this Constitution of JKCA could not detract from it, and has not. It had to ensure justice, liberty, equality, fraternity. The contours of law making are specified on account of the sheer accession. It was also bound by Article 1. It could not declare that we are not the federal unit of India. And it accepts in... that diktat of the Constitution of India in Section 3. That's not their own framing, that they are bound to do it. Next, My Lord, they could not therefore say that, any part of their territory will not form part of the Union Territory. That is one plea. They could not also say that, every person domiciled in the territory of India... and your Lordships have held, My Lord... I'll give that judgment where Your Lordships said there's only one domicile. Every State does not have a domicile. Nobody can say I'm domiciled in UP, or Tamil Nadu, or Bihar, etc. So, they could not say that, the people who are... that is the permanent residents of Jammu and Kashmir will not be the citizen. And they accept that, My Lord, in Section 5. That's not a gift of JKCA. That's the gift of the Constitution of India and the dictation of the Constitution of India to them. The same applies to the fundamental rights. Every citizen... see the concatenation and the connection between these provisions.... 1, 5, part 3... which says, "Every citizen"... in fact, some of the fundamental rights are broader but 19, specifically citizens. So, these rights could not be denied, and therefore they rightly My Lord follow it, the diktat, My Lords and put it in Section 10. Even if it was not there, they would have enjoyed these fundamental rights under the Constitution. And neither the President acting under 370 nor the authorities, My Lord who are giving concurrence or consultation or recommendation, could say that apply 370. That's not the purpose of the recommendation, is very narrow of continuing operation, don't operate or operate with some little modification. So, therefore My Lords, these fundamental rights, etc., and they also could not say and they have wrongly gone into that, in my humble submission, when they said that Article 136, initially of the Supreme Court's power, will not apply to Supreme Court. They could not say that. Because in the Accession they have said, we accept the Governor General, which will be President now. The Federal Legislature, that is the Parliament. The Federal Court, that is the Supreme Court and other authorities who are under the Constitution, charged with certain functions. The power to fix terms does not mean that you take away the power of these authorities under the Constitution. But things have been happening, 35(A) has also come, 136 had gone. To deprive 136 to the people of Jammu Kashmir, My Lord, is a huge denial to them. So, in short, the framework of the Constitution of India, and when we look at JKCA, we find that the entire JKCA is a reflection, there's nothing peculiar in that. What is peculiar is, 147 when it says that you can't amend the Constitution. There are restrictions. Likewise, Section 5 says that whatever be the Parliament's power under the Constitution of India. So, throughout it follows the diktats and respects the Constitution of India, and there is very little in it which is different. This methodology which has been adopted by the Constitution of India, for the formation of JKCA, it's convening and its enforcement. In my humble submission, is very akin to the juristic concept of evolution of powers. Devolution of powers. The Constitution has devolved power on the Yuvraj then, acting on the advice of Council of Ministers, to convene for the purpose of framing the Constitution, in accordance with the broad format as I pointed out. It's not an independent power like the Constitution Assembly of India. I'll give to, Your Lordships the view of the time constraint and these two judgments. This concept is frequently applied In United Kingdom, Scotland, Northern Ireland, Wales, all of them are enjoying devolved powers. The Parliament of UK is considered to be supreme. That is somewhat different in the sense that the law made by UK Parliament for Scotland specifies their Parliament. So we have Scotland Parliament also, Northern Ireland Parliament also, and the Wales Parliament also. So, it doesn't matter that you call your person Sadr-e-Riyasat or Prime Minister or Chief Minister, the stature doesn't expand by these expressions. The stature will depend upon the nature of power you are exercising. It doesn't equate with the power of Prime Minister of India, even if you call them Prime Minister. Yeah, psychological and emotional reasons apart. So the two cases, they are not on record, so I will not place it, My Lord, the time...bar is there. I'll just give the reference and paragraphs through Your Lordships will... We did send it, My Lord. But it's not admitted. So it's up to Your Lordship.. 

CHIEF JUSTICE DY CHANDRACHUD: What are the two cases? Give us a citation. 

RAKESH DWIVEDI: I'm giving the citation. 2002, Volume 1. 

CHIEF JUSTICE DY CHANDRACHUD: What's the name of it? 

RAKESH DWIVEDI: The name of the parties in re Scottish Independence Referendum Bill, in re Scottish Independence Reference Bill 2002, 2022. I'm sorry. 2022 UK SC 31. 

JUSTICE SANJAY KISHAN KAUL: Can you repeat the citation again? Please repeat the citation, Mr. Dwivedi. 

RAKESH DWIVEDI: 2022 UK SC Page 31. Paras 76, 77, 82, 88, and 90. 

CHIEF JUSTICE DY CHANDRACHUD: And how... can you just sort of summarize in a sentence what the principle is? 

RAKESH DWIVEDI: The principle was My Lord, that in this case they wanted a second referendum. Sorry, My Lord, when the Brexit was happening then they wanted to continue relations with Brexit. So, it was impinging upon the sovereignty of the Parliament, My Lord. In that context they have discussed this devolved powers. And they say that the Parliament gives the power and Parliament can take the power. It can modify the power. So, the Parliament is... so, this power is also a devolved power of a different kind of course, because it's more general it's not itself framing like other states. What they are to do is they don't have the list to... so it's a little more... so that's the departure. So, you have the psychological satisfaction of... 

CHIEF JUSTICE DY CHANDRACHUD: And what is the second judgment? 

RAKESH DWIVEDI: Then the other is 2000. This is, case is UK Withdrawal from European Union 2019, 2018 UK SC. 

JUSTICE SANJAY KISHAN KAUL: 2019 or '18? 

RAKESH DWIVEDI: '18 UK SC Page 64 Paragraph 12, 13, 29, 53, 61 and 63. Now, in this context, My Lords, kindly just keep my written submission open, My Lords, it's in the combined. I have tried to extract things there My Lords, so that I don't have to request Your Lordships to open the document as far as possible, My Lords. The other aspect, My Lord, Nehru ji himself says that the idea of having a Constituent Assembly for framing a Constitution for the State emanated from the Government of India and that is Your Lordship will find in para 128, page 44 of my submission. 

JUSTICE B.R. GAVAI: Which volume ? 

RAKESH DWIVEDI: My Lord, this is the combined compilation Volume 3. Volume 3, Written submission. 

CHIEF JUSTICE DY CHANDRACHUD: Volume 3 is Mr Solicitor's no? Mr Tushar Mehta's? 

RAKESH DWIVEDI: All submissions are there only. 

CHIEF JUSTICE DY CHANDRACHUD: Right. That's in Volume 4. We got it. 

JUSTICE SURYA KANT: Starts at Page 271. 

RAKESH DWIVEDI: Kindly come to the last eight lines, My Lords 

CHIEF JUSTICE DY CHANDRACHUD: Of which page? 

RAKESH DWIVEDI: It will be, My Lords. Paragraph 128 at Page PDF might be 44, My Lords. 

CHIEF JUSTICE DY CHANDRACHUD: Not 44. 

RAKESH DWIVEDI: Para 128. 

CHIEF JUSTICE DY CHANDRACHUD: Of your submissions? 

RAKESH DWIVEDI: Submission. 

JUSTICE SANJAY KISHAN KAUL: Where are your submissions start from? Which page? 

CHIEF JUSTICE DY CHANDRACHUD: It start at page 271. 

RAKESH DWIVEDI: Yes it starts from 271. 

CHIEF JUSTICE DY CHANDRACHUD: What is your internal page? 

RAKESH DWIVEDI: Page 44 

CHIEF JUSTICE DY CHANDRACHUD: That'd be about 313, I guess? 

RAKESH DWIVEDI: PDF 316. 

JUSTICE SANJIV KHANNA: What's the paragraph number? 

RAKESH DWIVEDI: 128. 

CHIEF JUSTICE DY CHANDRACHUD: Yes, it's Page 316. 

RAKESH DWIVEDI: Towards the middle, Your Lordships will find ' Thus the monarchical power had disappeared'.... Your Lordships have got this? 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: My Lord, Justice Surya Kant?... 

JUSTICE SANJAY KISHAN KAUL: Just one second. What page is it? 

RAKESH DWIVEDI: My Lord, Justice Gavai has got it? 

JUSTICE B.R. GAVAI: Yes. Para 128. 

RAKESH DWIVEDI: Yes, My Lord. I'm grateful. 

CHIEF JUSTICE DY CHANDRACHUD: Which one? Para 128 is from a judgment, it 3 appears. 

RAKESH DWIVEDI: No, no, no. 

CHIEF JUSTICE DY CHANDRACHUD: It says Shri Naphade Learned Senior Council. 

RAKESH DWIVEDI: That was... we are responding to the submission of Mr. Naphade. 

CHIEF JUSTICE DY CHANDRACHUD: Oh. All right. 

RAKESH DWIVEDI: They were all saying that, the Maharaj has formed... how he, My Lord formed JKCA... 

CHIEF JUSTICE DY CHANDRACHUD: Let's quickly go through that. 

RAKESH DWIVEDI: Lordship may have the middle, My Lord... Only... Thus the monarchical power had disappeared with the advent of the Constitution of India. Maharaja Karan Singh merely... 

CHIEF JUSTICE DY CHANDRACHUD: Just one second.

RAKESH DWIVEDI: I'm so sorry. 

CHIEF JUSTICE DY CHANDRACHUD: Monarchical power... 

RAKESH DWIVEDI: Yes. Thus, the monarchical power had disappeared with the advent of the Constitution of India, Maharaja Karan Singh merely executed the mandate of the Constitution of India, embodied in Article 370. Secondly, speaking in the Lok Sabha on 26th of June 1952, soon after the proclamation of Maharaja Karan Singh, dated 01-05-1951, Prime Minister Shri Jawaharlal Nehru said, "So, the Government of India and others put it to them to the Maharaja and Sheikh Abdullah, as soon as he came out, that this matter must not be hurried. And it was our idea then that, a Constituent Assembly should be elected in Kashmir quickly and as soon as possible to decide about these and other questions. We advise them." So, in view of 370 and perhaps because of the international situation regarding Kashmir, which was developing, the Government of India wanted that it should be convened. There should be a ratification of accession and all. Thus, the idea came from here. Not coming from them. What was Maharaja Hari Singh wanting, My Lords? He contemplated a National Assembly. He was still dreaming of independence. So, he was thinking that when the whole of the POK, etc., comes in, then there will be plebiscite and then we will decide whether to accede or not. And that's the mischief which Mountbatten played when he wrote reply letter, when he said that our... policy of our Government is... who is he to write My Lord? He is bound by the Government of India Act and the Adaptation Order, which says that once the Governor General accepts, that cession is complete. And Indian Armed Forces are there, driving back the people who had come inside to grab Kashmir. But he writes a letter... Governor General directly writing a letter... policy of our Government is... That letter has no meaning... Mr. Sibal referred to that letter to draw some sovereignty etc. That still looked sovereignty remained. Accession was still a dispute, still to be settled. It's not final. So, where are we to go? To what extent? So what Hari Singh contemplated, was completely different. What Karan Singh proclaimed was our relation will be defined by the Constitution of India, as applicable to... two different, contrasting expressions used there. 

CHIEF JUSTICE DY CHANDRACHUD: What remains, Mr Dwivedi? 

RAKESH DWIVEDI: My Lords, a lot remains. My Lords, we will... some total we will not be crossing the boundaries, but these aspects need to be placed before Your Lordships, and have not been placed. Now, the question is, what did they refer to? Mr. Sibal started from the Cabinet Mission plan... return of paramountcy... then when the British left, all Indian States became independent they were free. Many felt so. From there, My Lord the sovereignty element is being derived. What is forgotten is that Cabinet mission plan was again a British device to frame a larger Pakistan within India. Three groups, The Central Provinces - Group A, Northwest - Group B, Assam and Bengal, whole of it - Group C. Something which even Muslim League did not demand, the British were framing. Because they wanted to control the two frontiers for geopolitical reasons. They want bases at both the ends. So they came with this Cabinet Mission plan and it was... basis was that parties are not agreeing, therefore, we are presenting arbitrators. And what was the dispute with the first great interpretative exercise, where the fight was is the group... are these group frozen? They provided an expression that once each group will frame a Constitution, and once the Constitution is framed, then the provinces which are part of the group, may decide to remain or to go out of the group. Then the leaders who are leading our, on the side of the Congress, they said no these groups you may form, but once it is formed, then the provinces need not wait. So, the huge fight about the frozen character of the groups. And the other issue was parity at the centre, weak centre and parity. Parity, Congress, Muslim League, and the Princes, three. So, who controls My Lord? As we say in the bandar baat, the British becomes the arbitrator. There will be stalemates for every issue. Now, this creates a larger Pakistan, the option was partition. Now, this went on. Our Constituent Assembly was constituted under the plan. So, we decided to work out the plan but without being bound by the Cabinet Mission Plan and it was made very clear by our leaders, that once Constituent Assembly starts, then what it decides, is not your concern. It may choose to destroy the groups also.In fact, the leaders were called to London also, and they said it may be referred to Federal Court in case of dispute, but our acceptance will remain qualified. Now 26th... 6th of.... 9th of December, 1946 our Constituent Assembly started functioning, temporary Chairman Dr. Rajendra Prasad. Then objective resolution placed on 13th of December debated, accepted and adopted on 22nd January, 1947. All this is happening before 15th of August. Then they proceed to form a negotiating committee to negotiate with the States. And based on the Cabinet Mission plan, which the Princes had accepted. Please note, Section 8 of the India Independence Act, recognizes that the Constituent Assembly of India is that which began functioning on 9th of December 1946. There may have been a withdrawal of the British, legally and physically on the 15th of August, which we celebrate as our Independence Day. But our Independence is not a grant of India Independence Act, it is a result of the long drawn people's struggle. That's why the "We, the people" has come. There are some observations in Justice Beg's judgment, in Indira Gandhi's case, which the other side relied. But I found some other observations which say that Independence was granted by the India Independence Act. India Independence Act, what does it do? There shall be two dominions. It is partitioning and providing an interregnum arrangement, what will happen in between namely, the Government of India Act continues with adaptation, etc., and that the Constituent Assembly will also function as the Legislative Assembly. That is also provided in... So, it's a Machinery Act, a Transition Act, it's not an act which grants us. They say dominion, somewhere My Lords expressions of dominion, are still lingering in our Constitution, My Lords, the Attorney General and the Solicitor should take care that they are deleted. There are some provisions where still, My Lord, the word dominion continues. But we did not accept the dominion. Here comes the role My Lord of the objective resolution. It said, we are adopting an Independent Democratic Republic. So, the negotiation with the Indian States are based on the concept of Republic and since our Assembly continues, based on that objective resolution from 6th, 9th of December 1946. Therefore this republican character is the basis for accession. This is important for the reason, if you compare Section 5 and 6 of the Government of India Act 1935, it talks of a different kind of federalism, a federalism under the imperialism, a federalism under the Crown and a federalism, which will be triggered by the decision of His Majesty, provided more than half almost of the Princes agree then to come in. So, a different kind... accession, signing of the Instrument of Accession under the Government of India Act is different from signing of the Instrument of Accession under the Constitution of India in the making or under the Government of India Act as adapted. My Lords, notice the expression Union... unity. There is some very vital document now My Lords, the British government has released several volumes of transfer of power having about a total of 13,000 pages. I was able to get this document, which is annexed to my written submission. Kindly have a look at that. It completely changes and all these documents were not present, My Lords, in the earlier exercise relating to 370. PDF page 327. Your Lordships has this? 

CHIEF JUSTICE DY CHANDRACHUD: Yes.

RAKESH DWIVEDI: My Lord, Justice Kaul as well. 

JUSTICE SANJAY KISHAN KAUL: This Volume 11. [UNCLEAR] Is it what you are reading Annexure-2? 

RAKESH DWIVEDI: No, I am on the same written submission My Lords which I was reading. 

JUSTICE SANJAY KISHAN KAUL: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

JUSTICE SANJAY KISHAN KAUL: begins with... 

RAKESH DWIVEDI: Volume 3. 

JUSTICE SANJAY KISHAN KAUL: Persistent relation between Britain and India. 

RAKESH DWIVEDI: Yes, yes. May I please read? My Lord, the Chief Justice? 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: Please read below the caption, Section 5 of the Act. A revised draft... 

CHIEF JUSTICE DY CHANDRACHUD: Where do we...? Page 327 is the title page. 

RAKESH DWIVEDI: Next page. Running page 70. 

CHIEF JUSTICE DY CHANDRACHUD: That is 8th June 1947. 

JUSTICE SANJAY KISHAN KAUL: The Letter of 8th June 1947. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Rajagopalachari to Sir...... 

RAKESH DWIVEDI: No, Your Lordship may go ahead. That's... I'll come to that later, My 8 Lords. Please come to running page 73. 

CHIEF JUSTICE DY CHANDRACHUD: Where is Mr. Kanu Agrawal? 

RAKESH DWIVEDI: Sorry. PDF 334. 

CHIEF JUSTICE DY CHANDRACHUD: PDF 334. 

RAKESH DWIVEDI: I'm so sorry. 

CHIEF JUSTICE DY CHANDRACHUD: 334 is a part of some document, I guess? What is that document that this is a part of? 

RAKESH DWIVEDI: That's some earlier letter, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: It's Enclosure Number 1 to Number 111, the disappearance of paramountcy, the emergence of independent sovereign states and the balkanization of India by... 

RAKESH DWIVEDI: PDF 345. 

CHIEF JUSTICE DY CHANDRACHUD: 345. One second, give us a moment. 

JUSTICE B.R. GAVAI: Before my meetings of the Indian Cabinet? 

RAKESH DWIVEDI: Yes. Meeting of the Indian Cabinet. I'm grateful. May I place that My Lords? Meeting of the Indian cabinet. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 345. Actually, this is a part of Volume 12 of the transfer of documents and now we have page 345 which is Meeting of the Indian Cabinet? 

RAKESH DWIVEDI: That's right. May I place it? 

CHIEF JUSTICE DY CHANDRACHUD: Mountbatten papers. Indian Cabinet Minutes, Part 2. 

RAKESH DWIVEDI: The Indian Province... Provincial Constitution Order 1947 was being discussed. The Hon'ble, the Vice President, recalled that in the discussions at the previous meeting of the Cabinet on the India Provisional Constitution Order 1947, two sections, namely, Section 5 and 47, had been left over for further consideration. Section 5, a revised draft attached, prepared by the Reform Secretariat in the light of the previous week's discussions in the Cabinet was handed to the honourable members. It was pointed out that there was the same fundamental objection to the draft as now revised as to the originally redrafted Section 5 of the Act considered at the previous meeting. The draft gave the impression that the Dominion was limited to British India, which was an entirely wrong conception. It was necessary to devise a formula to show clearly that the Dominion of India would comprise, a) Governor's. Provinces; b) Chief Commissioner's provinces; c) Such Indian States as acceded to the Dominion; and d) Any other areas which, by consent of the Dominion would be included in the territory of the Dominion. Now this is important. Political and psychological considerations demanded that there should not be the least doubt that all states that acceded to the Dominion would form an integral part of the Dominion. This is how My Lord the reason for changing the earlier draft and My Lord, Section 5 and 6 of the Government of India Act. So, the Cabinet of the Government of India, which had resolved already to form a Republic, Independent Sovereign Republic, is saying that the moment you accede, you become integral part of India. Now the whole thing changes My Lord, with this backdrop. If you read the IOA which was signed, it was a formatted document. Everybody signed. So all those mergers and etc., which are being talked about, they are neither here nor there. They are just a methodology. Mergers are generally happening of small states to the next door State or Union of State, which they formed, that has nothing to do with... Now some States have accepted the Constitution of India, some may not have said so... that's... once you sign that's the last. You become integral part of India. With this Adaptation Order before the Indian States, the rulers signed the Instrument of Accession. So, therefore, every state which signed so far as it's becoming an integral part of India. And in fairness, Mr. Sibal concedes, My Lord, that JK is fully integral from that point of time. But it has consequences. So when Article 1 talked about 'merger of territory', when it talks about 'including the state', it is not just off the cuff. That's the mandate flowing from the statute, accepted by everybody. Everybody is acceding on that basis. So it's an understanding... Therefore My Lord, all these States are mentioned in the schedule and their territory is incorporated. That's the integrity. And the instrument is at page that is at PDF 350, which Your Lordships have seen in the other volumes, Your Lordships may just note that in the very beginning it says, Dominion of India established by the India Independence Act, shall as from 15th August, be a Union of, that's the first clause is the Amended Draft, Section 5. And please see C, 5(C), Indian States acceding to the Dominion in the manner, hereinafter provided. So, if you accede in the manner under Section 6, you become part of the Union. This is also there in Volume 6, PDF 103. And 6(A) says, 'If you declare that he accedes to the dominion with the intent that the Governor General, Dominion Legislature, Federal Court, other Dominion authorities established for the purpose of dominion, shall, by virtue of instrument, but subject to the terms thereof, and for the purpose of the dominion, be vested in the order under the [UNCLEAR].' So, once you accept all these authorities, once you integrate, how do you integrate if you don't accept? And the terms, the expression, subject to terms doesn't mean that you... these are minor modifications and qualifications which may come in. But you can't say that on the one hand, that I accept the Supreme Court, I accept the President, I accept everything. But qualification, I will not accept 136. So, therefore my submission is, that our independence is not a grant ofIndia Independence Act. We had already resolved to form a Republic, a Sovereign Independent Republic and we amended the Adaptation Orders to make it clear to all the rulers of the States that the moment you sign the Instrument, you are part of the Union, you are integral. 

CHIEF JUSTICE DY CHANDRACHUD: So actually, if you see the Constitution, the 24 Provisional Constitution Orders, 1947... 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: ...which is a part of Mr. Arvind Datar's Second 29 Edition of 2007. 

RAKESH DWIVEDI: Yes.

CHIEF JUSTICE DY CHANDRACHUD: You will find it here at page 348, page 348. 

RAKESH DWIVEDI: Yes, My Lords. 

CHIEF JUSTICE DY CHANDRACHUD: And what it says is that the Indian Independent... The Government of India Act shall apply with such modifications, as are specified in the Schedule, right? 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: And if you go to the Schedule now at page 350. 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: There you will find the modification of Section 5... 

RAKESH DWIVEDI: That's right. 

CHIEF JUSTICE DY CHANDRACHUD: A Domain of India established by the Indian Independence Act from the 15 August 1947, be a Union comprising of... see, the Indian States acceding to the Dominion in the manner hereinafter provided. 

RAKESH DWIVEDI: That expression is very important "In the manner." 

CHIEF JUSTICE DY CHANDRACHUD: "In the manner." And now 6 says, Accession of Indian States. 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: An Indian State shall be deemed to have acceded to the Dominion of the Governor, if the Governor General has signified his acceptance of an Instrument of Accession, executed by the ruler, whereby the ruler, on behalf of the state, a) Declares that he accedes to the dominion with the intent of the Governor General, the Dominion Legislature, the Federal Court... 

RAKESH DWIVEDI: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: And any other Dominion Authority established for the purpose of the Dominion, shall, by virtue of this Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion exercise in relation to the state, such functions, and may be vested in them by or under the assumes the obligation of ensuring that due effect is given within the state to the provisions of this Act, so far as, they are applicable therein, by virtue of the Instrument of Accession. 

RAKESH DWIVEDI: Now B completely destroys the argument of internal sovereignty. You have to give effect to all these authorities, the laws made, the execution done, the judgments given within the state. Reservation of some subjects My Lords, doesn't mean that some sovereignty remains. That's a distribution of powers only. So you have some more powers, which are the... 

CHIEF JUSTICE DY CHANDRACHUD: What do you make out of that statement in the IOA, where the Maharaja said that I have retained my sovereignty for the future. 

RAKESH DWIVEDI: You see Section 6, which is amended, does not contain any such term. Maharajas cannot, as the learned Solicitor General showed somebody's saying that we will have reservation about tax, so that's their wish. You may wish anything. But so far as the statute is concerned, as adapted. Section 6 does not contain any Clause 8. All that remains is that by supplementary instruments you can further make more concessions. You may concede more subject matters. That Clause 8 is completely beyond 6, it has no validity. But I will say you read that Clause 8 of IOA where Hari Singh says, I preserve my sovereignty. That is only meaning that he is preserving his power to legislate and do whatever My Lord with respect to the remaining subject matters. 

JUSTICE DY CHANDRACHUD: Right. What's the next point, Mr Dwivedi? We'll have to leave sometime today for Mr Giri. So long as all of you are within the time framework, we have no problem. 

RAKESH DWIVEDI: Kindly just note the documents I will not read because of the time constraint. Your Lordship will look into it. Just at PDF 328. This is about the paramountcy. What was the view of the leaders of... on the Indian side, when they were discussing? None of these Indian States, My Lord were independent really... 

JUSTICE SANJIV KHANNA: Mr. Dwivedi, we have understood this argument. 

RAKESH DWIVEDI: Yes, I'm not reading therefore. I'm just saying, Your Lordship may note... the first is the Rajagopalachari's note. The second note is at Page, PDF 331, which is Shri Alladi Krishnaswamy Iyer, My Lords, and they took lot of pains... and the last My Lord is of Pandit Nehru himself at 339 to Lord Ismay, who was the Chief of Staff of Mountbatten. All three of them... they were persisting that they have never been independent. What are you doing? This return of this paramountcy was an attempt to balkanize India. Create so many enclaves and that created so much problem. And it is thanks to Sardar Patel, that all this was And when he left, he was wondering, My Lord, that what he was trying to negotiate on three subjects. Sardar Patel, he said that, "you have wiped out the monarchy from the map of India". So therefore, they were hardly independent. And we know from Amritsar Treaty, on the basis of an amount of money and one horse and twelve shawls, etc., which is mentioned, annexed document, I will not read it. It was transferred to Gulab Singh and that's how My Lord this.... So when were they.... earlier under Ranjit Singh and some King or the other, they were never independent. Therefore, this sovereignty flowing internal residuary... whatever.... There was no sovereignty. And whatever left, Article 1 finishes. That's the complete merger. No merger agreement is required. No supplementary Instrument of Accession is required. Now, My Lords, in re Berubari kindly read, I am reading only from this para 73 of my written submission, which is at page 298. Your Lordship has it? 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

RAKESH DWIVEDI: Now kindly come to pdf 299, that bold portion. Cession of National Territory in law amounts to the transfer of sovereignty over the said territory by the owner state in favour of another state. There can be no doubt that such cession is possible, and indeed history presents several examples of such transfer of sovereignty. It is true, as Oppenheim has observed that hardship is involved in the fact that in all cases of cession, the inhabitants of their territory who remain lose their old 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 with such certain period, in favour of the inhabitants of ceded territory, as means of averting the charge of inhabitants are handed over to new sovereign against their will. But though from the human point of view, great hardship is inevitably involved in cession of territory by one country to another, there can be no doubt that a sovereign state can exercise its right to cede a part of its territory or foreign state. This power, it may be added, is of course, subject to limitations which the Constitution of the State may either expressly or necessary implication impose in that behalf. In other words, the question as to how treaties can be made by sovereign state in regard to cession of national territory and how treaties can, when made can be implemented, would be governed by the provisions of the Constitution. Stated broadly, the treaty making power would have to be exercised in the manner contemplated by the Constitution is subject to limitations imposed by it. Whether the treaty can be made, implemented by ordinary legislation, constitutional amendment will naturally depend on the provisions of the Constitution. Then, kindly come to the next overleaf My Lords, last few lines of this paragraph. 'We have already referred to Article 13(c), and we have observed that it does not purport to confer power on India to acquire territories. It merely provides for and recognizes automatic absorption or assimilation into territory, of territories which may be acquired by India by virtue of its inherent power as a sovereign state.' So that 1(c) and 2, they are straightaway Act of State. So even Constitution can recognize by its provisions, certain powers which are in the nature of Act of State. It may circumscribe it, or it may not circumscribe it. Now kindly also have 74, Santosh Gupta. This was read out by Mr. Naphade, but he said, this is obiter. 'State of JK has no vestige...' This is two Judge judgment. 'State of JK has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the COI, Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents, constituting a separate and distinct class for themselves. Residents of JK, we need to remind the High Court, are first and foremost citizens ofIndia.' Now this is not obiter.I have explained in 75, My Lords will look into that. There were direct questions in the High Court judgment, it was said that JK is sovereign and therefore Their Lordships dealt with it and said that sovereignty is not there. It had lost its sovereignty. Then, I have quoted the speeches from Shri Nehru, and Dr. Ambedkar in paras 76, 77, 78. Your Lordship may just note each of them are saying, that... I may just read 76, Shri Jawaharlal Nehru said, "We accepted it and of course, the accession was complete. It was not a kind of partial accession or limited accession. The accession was complete, but we said that we will abide by the verdict of the people whenever the chance or the opportunity comes." He also said, "So Kashmir, obviously is a constituent unit of the Federation of the Union of India. But a difference has arisen, subsequently arisen, you please remember that, not originally, between Kashmir and the other States because subsequent to the earlier accession, the other States have become integrated more which Kashmir was not and could not in the circumstances, as I have tried to point out, but nevertheless it is a full constituent unit of India. Various things flow from it, various consequences, consequences for instance, in regard to the President of the Republic. The President's ultimate right has to remain for a constituent unit of India." So various consequences, I already spelled out on what follows from the integration and unionization. And Dr. Ambedkar also said, this has been read by the learned Solicitor General, Your Lordships may just note. He explained what is meant by Union. And kindly turn to next page. I'm not relying so much as quoted though Raja Ram Pal which says destructible units and maybe some lines need to be drawn. I can't mean that all the States disappeared, and federalism disappeared. So that was Your Lordship's worry also when the learned Solicitor was arguing about Article 3. Then para 80, the State of West Bengal versus Union. It expressly says My Lords, that the feature of a compact or agreement between independent and sovereign units are absent in the Constitution of India. There is distribution of powers, but distribution of powers is not always an index of political sovereignty. 

CHIEF JUSTICE DY CHANDRACHUD: Where is this? Oh yes. Para 18. 

RAKESH DWIVEDI: I'm reading My Lord from what I have said. But this is part of the judgment Para 25 have mentioned. Your Lordship may note that and Para 80. Then kindly have My Lords Para 51 going back a little. Para 51 that is PDF 293, same written submission. Yes, My Lords, I'm sorry is this Para 25 of State of West Bengal is fully quoted My Lords at, beginning at PDF 291. And Your Lordships will find the relevant portion in Clause A. Kindly come to PDF 292, this is paragraph 25 from fourth line. The result was a Constitution which was not true to any traditional pattern of Federation. There is no warrant for the assumption that the provinces were sovereign autonomous units which had parted with such power as they considered reasonable or proper for [UNCLEAR] the Centre. 

JUSTICE SANJIV KHANNA: You're on page 291 

RAKESH DWIVEDI: PDF 292. 

JUSTICE SANJIV KHANNA: 291. It starts. 

RAKESH DWIVEDI: Yes, it starts in 291. 

CHIEF JUSTICE DY CHANDRACHUD: There is no warrant for the assumption. 

RAKESH DWIVEDI: Yes, there is no warrant for the assumption that provinces were sovereign autonomous units which had parted with such power as they considered reasonable or proper for enabling the Central Government to function for common good. The legal theory of the Constitution was based was the withdrawal of resumption of all powers of sovereignty into the people of this Country and the distribution of these powers save those withheld from both the Union and the States by reason of provisions of Part 3 between the Union and the States. A truly federal form of government, envisages a compact or agreement between the independent and sovereign States to surrender partially their authority in their common interest, and vesting it in the Union and retaining the residue of the authority in the constituent units. Ordinarily each constituent unit has its separate Constitution by which it is governed in all matters except those surrendered to the Union. And the Constitution of the Union primarily operates upon the administration of the units. Our Constitution was not the result of such compact or agreement. Units constituting a unitary state, which are non sovereign, were transformed by application of power into a Union. Then the second characteristic is supremacy of the Constitution, which cannot be altered except by the component units. Then see distribution of powers between Union and Regional Units. Your Lordship the fourth is supreme authority of Courts to interpret the Constitution that is D. Kindly come below that, in our Constitution, characteristic D is to be found in full force. A and B are absent. There is undoubtedly distribution of powers between the Union and the States in matter, Legislative and Executive for distribution of powers is not always an index of political sovereignty. So this theory bilateralism compact and all this objective resolution was unilateral, adaptation was unilateral, Article 1 is unilateral, 370 is unilateral. So there is some exchange of thoughts and agreements to be within the fold of 370 does not make it bilateral. So bilateralism need not be introduced in 373. Kindly have para 51, next page. Even in a pre constitution setting in Promod Chandra Deb vs State of Orissa, para 17, a Constitution bench of this Court held that sovereignty of erstwhile ruler ends with accession of territory. And then this Court said some sovereignty is retained after the execution of IOs. That was a passing reference as sovereignty was being discussed in the light of an old grant of land by ruler to son. Such grant would amount to law, which was continued post 1948. So the rights under the said grants were recognized by the new sovereign power. And in re Berubari also takes the same view in para 31, which I had already read. So cession of territory is a very vital... and Article 1, therefore assumes.. declares the end of... If any doubts remain, that's the last nail in the coffin of sovereignty. And it is surprising My Lord, that my friends on the right, wedded to democracy are seeking permanence based on a Crown which is long gone. The King is dead. Long lived the King. Your Lordships Just note... in paragraph 69. Just even Ayyangar, Shri Ayyangar also says that they are fully integrated. We can't extract some paragraphs here and there and assert based on two paragraphs. What is the meaning of Clause 1, 2 and 3? If Your Lordships, will come in that paragraph 68 at next page, that is 298. PDF 298. The draft Article 306(a) was placed before the Constituent Assembly on 17-10 and passed on the same day. Shri Ayyangar said, "the meaning of accession is that, at present day the State JK Unit is a unit of a federal state that is Dominion of India. Dominion is getting transformed into a Republic, which will be inaugurated on 26th. JK State therefore has to become a unit of the new Republic of India. He goes on to say that Instruments of Accession will be a thing of the past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a Document of Accession for the purpose of becoming units of the Republic. But they are mentioned in the Constitution itself." Now all this is left out. And you extract three paragraphs where he is trying to say very lightly about referring to Clause 1, 2, and 3. And he doesn't say, My Lord, what happens after the JK Constitution Assembly ceases. He could not have said My Lord, the times were so difficult. Therefore, My Lord, it is a very brief speech. But these are much more vital expressions in his speech. You don't have to accede or execute a document of accession for the purpose of becoming units. The Preamble and the Article 1 and 5 and Fundamental Rights, all they complete. That's the Republic. Without it, there is no Republic. So, My Lords that's in my respectful submission... my submission with regard to this...I don't wish to add anything about 356 etc. Except to see that My Lord, in Bommai's case, there are two observations with regard to the width of this suspending power. Paragraph 271 and 281. I'll give it in a piece of paper, My Lord. the paragraphs without [UNCLEAR] Your Lordships. 356 invocation will be in variety of situations which cannot be.... in a variegated situations. So therefore, what will be the circumstances, emergency provision all will depend. So, I just wanted to point out to supplement those paragraphs which I'll give. And one more thing that the Constitution Review Committee was constituted under the chairmanship of Mr. Venkatachaliah. And 356 was an issue, whether it should be retained or he said, "This is the bulwark of the Constitution." So the concept changes with time. Initially it was thought it will never be exercised. But the review committee says and very high level committee, Justice Jeevan Reddy was also a member of that committee, and they say that it's a bulwark but yes, there has been some abuse. Therefore, the checks and balances adjudicatory powers, the judicial review is there to check it. So with this, I conclude and say that let us, buddy 370. 35A, I'll just... my friend has filed a writ petition also, it's questioning 35(a). So I just wanted to give Your Lordships, which again I'll mention in the piece of paper, the paragraphs of IR Coelho where Your Lordships have held that if you come out with any instrument of Law, Constitutional amendment, which.. that was in the context of 31B, Waman Rao and in Minerva Mills, and all those things were considered and Your Lordships have held that all laws which are placed in 31B will be tested. And so far as certain, of course, prospective overruling etc., is different concept but here we are finding that 35A has been super added. It's a complete lock stock denial of several vital fundamental rights. So in view of IR Coelho, I submit that needs to be struck down. I'm grateful, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: Thank you, Mr. Dwivedi. 

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