GOPAL SUBRAMANIUM: My Lords am I clearly visible and audible? 

CHIEF JUSTICE DY CHANDRACHUD: Yes, of course Mr. Subramanium. 

GOPAL SUBRAMANIUM: Thank you My Lords. My Lords, I wish to begin by saying that in constitutional arguments there can be multiple approaches... 

DINESH DWIVEDI: He is from London My Lords. London is behind all these problems. 

GOPAL SUBRAMANIUM: May I only correct my friend My Lord. I don't live in London. I am only of the suburbs. My Lord having said that, there are My Lord multiple approaches. One My Lord is what we call traditionally the historical argument. The second My Lord would be a textual argument. The third is a doctrinal argument. The fourth is prudential and the last is structural argument. My Lords these are all well-known methods of interpreting a Constitution. These are broadly My Lord, the topology of constitutional arguments. In this case whatever approach we may adopt, the end result will be the same. Whichever way we proceed to look at this matter, there will be... 

CHIEF JUSTICE DY CHANDRACHUD: Subramanium, who are you appearing for in this batch of cases? 

GOPAL SUBRAMANIUM:I'm appearing My Lords, ifI may just point out to,I'm appearing in Writ Petition Civil 1104 of 2019. 

CHIEF JUSTICE DY CHANDRACHUD: And is a petitioner there? 

GOPAL SUBRAMANIUM: Yes My Lord, there is a petitioner Muzaffar Iqbal Khan. 

CHIEF JUSTICE DY CHANDRACHUD: Muzaffar Iqbal Khan. 

GOPAL SUBRAMANIUM: Yes. My Lords, my written submissions are also on Your Lordship's record. 

CHIEF JUSTICE DY CHANDRACHUD: Yes Mr. Subramanium.   

GOPAL SUBRAMANIUM: So, My Lords, I'm going to urge for Your Lordship's consideration, four important propositions. The first is, the Constitution of India and the Constitution of Jammu and Kashmir speak to each other. They exist together. And their complementary existence is a quintessence of the relationship between India and Jammu and Kashmir. The second.... 

CHIEF JUSTICE DY CHANDRACHUD: So they speak to each other and complement their existence. 

GOPAL SUBRAMANIUM: They are complement to re constitutions. With respect to Justice Nariman, in one of the judgments he called it subordinate. I think the word is slightly in opposite, I would say complementary. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: The second My Lord, is that Constituent Assembly by its very definition is a primary Assembly which is vested with this extraordinary task of framing a Constitution. That is why My Lord, the amending power is always called a derived power. An amending power, a power to amend the Constitution is always called a derived power. And here My Lord we have two Constituent Assemblies. The Constituent Assembly of India and we also have under the Constitution recognized by the Constitution, a Constituent Assembly of Jammu and Kashmir. This is the second. But, what is its implication? I'll deal with it. Then the third, the impugned orders that is C.O. 272 and C.O. 273, in sum and substance do away with the Constitution of Jammu and Kashmir. That My Lord is impermissible, it is not authorized. The last is about this expression 'people'. Here, My Lord, people have both the sense of being persons but in the Constitutional context they have a legal and juridical existence. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: If I may now My Lord, submit, My Lord, Honourable the Chief Justice yesterday, made a very important observation and it is perhaps a critical observation, that in any representative democracy, we must look for expression through the institutions under the Constitution. And My Lord, I'm going to urge Your Lordships, to consider that the expression, 'Constituent Assembly' and 'Legislature of a State', are both institutions recognized under our Constitution. I will submit, My Lord that the basic structure, which Your   Lordships have to discern, in this case, to determine whether there could be any abrogation of it, will be deduced both from the Indian Constitution, and the Jammu and Kashmir Constitution. I will also urge Your Lordships to employ.... 

CHIEF JUSTICE DY CHANDRACHUD: Just one second. Yes Mr. Subramanium. 

GOPAL SUBRAMANIUM: I will urge Your Lordships to apply what is called the degree test, or the effect test applied by Chief Justice Kapadia in a case called Glenrock and it is by applying that test we assess the extent of abrogation. Most importantly, My Lord, our Constitution recognizes asymmetric federalism and the purpose of asymmetry is to take note of special conditions and special needs of people. Now My Lord, the great colossus Dr. Ambedkar, introduced a Constitution and his introductory speech had two themes. That speech My Lord, is available for Your Lordships in Document Volume 8. And in that opening speech, Dr. Ambedkar speaks about the Indian Constitution being federal. And he also says that people who live in a State can be given special rights, special privileges. There was another question, which I think I heard My Lord Justice Gavai mention, which was, there were also princes who merged their States at the time of the Constitution. There were agreements. What was the status of those agreements? Could they not be abrogated? And, My Lords, there is some answer which needs to be offered to that question.It's a very important question. Jammu and Kashmir was not like any other State at the time of accession. It was not like any other state. And I'll give Your Lordships, three reasons. The first, Jammu and Kashmir was a State, which had its own Constitution prior to the act of accession. They had a Constitution of 1939. Two, the accession by the Maharaja was qualified because people were still in the process of making up their mind. What, My Lord, the Indian Constituent Assembly did is that just as they felt a decision can only be taken by the people of a country, they thought it's appropriate and necessary that's the will of the people is ascertained. My Lord, that is the first hallmark of this case. What did the Constituent Assembly and later in our Constitutional text proffer to do? They maintained the highest sense of democracy and respect. Just as we are enacting and giving unto ourselves the Constitution, we must give that Constituent Assembly to determine their future. And that My Lord is the reason why in draft Article 306(a). Which was introduced by Mr. Gopalaswami Ayyangar, spoke about the Constituent Assembly of Jammu and Kashmir taking a decision. Now My Lords the entire controversy or dispute has been presaged, if I may say so, on one misunderstanding namely there is a unilateral exercise of power possible by the President under Article 370. This is how we've looked at the provision. Now I'm going to show to Your   Lordships, it is exactly the converse. What is the converse? I'll now take you My Lords to some portions of the debates of the Constituent Assembly of Jammu and Kashmir, and then Your Lordships would notice what was their final resolution. My Lords, they passed a resolution and the text of that resolution is the answer to the case. It is an answer to many questions. We have been very uncertain, that did the Constituent Assembly take a decision under Sub-Article 3? What was their position on Article 371? Your Lordships will find answers. But I'm summing up first My Lords, so that Your Lordship knows what is that answer going to be. My Lords, just as the Constituent Assembly debates of India are inspiring, the Constituent Assembly debates of Jammu and Kashmir are also inspiring. Your Lordships will notice that it was really on the basis of Rousseau's model of Representative Democracy that the Constituent Assembly itself was formed. But more importantly, they took their decision in three steps, My Lord. Three steps. The first is, they left India in no manner of doubt, that they have faith and respect for the people of India, and are acceding to India. The second is My Lords, they were looking at all Constitutions of the world just like Sir B.N. Rau did. Just like Dr. Ambedkar did. In fact My Lord, one of the greatest gifts of government publications are the Complete Collected Works of Dr. Ambedkar, published by the Maharashtra Government. And My Lord the Editorial Chairman was is one Mr. R. M. Gavai. And that painstaking effort of putting all his letters together and all his letters are quite remarkable. Having said that, My Lord, they had many Constitutions to look at. They also looked at the Indian Constitution and they said we will need some special provisions for us. We will need some exceptions for us. One of the first States in India, My Lord, which looked at land reform was Kashmir. It was actually their throbbing concern, at that time, that we must give rights over the land to people and they must be permanent residents and people must have rights. So, my Lord, they wanted some exceptions. So the first time the My Lord, decision to accede, second, they said we will frame our Constitution, but we will request the Government of India, that each Constitution, with the exceptions which we need for Jammu and Kashmir, must be brought into effect, under Article 370. That is why My Lord, we have three constitutional orders, which I'll show you shortly, one of '50, '52 and most importantly, '54. My Lord, it was the Constituent Assembly of Jammu and Kashmir, which invited, under Article 371, for the application of the provisions of the Constitution, with exceptions which were required in Jammu and Kashmir. I'll show you My Lord, that resolution. You will see it very shortly. And My Lord, the Government of India accepted that request, and issued the 1954 order. And, then they said, if we have already got an order, subject to exceptions and modifications, and in that My Lord, they omitted many parts of our Constitution, because they wanted it to come in their own Constitution, like Legislature. So, the Legislature, My Lord, is actually established under the J&K Constitution. The High Court of Jammu and Kashmir, is established under the J&K Constitution. So they said, we will take the '54 order as Indian Constitution, as applied to Jammu and Kashmir, and that is how My Lord, the Jammu and Kashmir Constitution was born in 1957. The Jammu and Kashmir Constitution on 26-01-1957, recognized the application of the provisions of the Indian Constitution, under the '54 order. And also had, separate provisions, including My Lord the autonomy, in respect of framing of laws. And this is quite important My Lord, because this is the way two Constituent Assemblies My Lord, as a product of their fruitful energies, through now the Constitution, speak to each other. So My Lords even though the word 'temporary', occurred in the marginal note, the resolution of the Constituent Assembly of Jammu and Kashmir, My Lord, which I'm speaking, and I'm putting it within quotes was that, "A Constitution of India must apply with these modifications, but more importantly, they said Article and Article 370 must continue." I am talking of an affirmative resolution, My Lord, of a Constituent Assembly. It is not a matter of any non-formalistic expression and it is that formal resolution read with the J&K Constitution which finally, My Lord, fall up for you interpretation. My Lord what is significant is the two Constitutions, I said, speak to each other. Which is that provision through which they speak to each other? It is Article 370. So My Lord, Article 370, was not a repository of untrammelled power of application of Constitutional provisions. No. Article 370, was the medium by which the Indian Constitution could be applied and they could also act in terms of their Constitution. And My Lord, here lies what I call as a dual obligation. The dual obligation, My Lord, is to be discovered, one, in the words of Section 147 of the Jammu and Kashmir Constitution, and the second, are the words in Article 370 itself. In Section 147 My Lord, one of the laws which could never be touched by the Legislative Assembly ever in the exercise of its amending power was the provisions of the Constitution of India as applied to Jammu and Kashmir. This is My Lord, in some contrast and again, I am deeply grateful to My Lord, the Chief Justice who again in a thought provoking observation referred to Article 372, the power of adaptations. And in that Your Lordships will notice, the President can bring it in accord with the Constitution, but the Legislature of the State, which is competent, can always pass alone repealing, modifying, varying it, Your Lordships, recollect that provision in the Constitution. This is not there in 148 at all. So, 148 treated the provisions of the Indian Constitution as sacrosanct. And My Lord what did we under 370 offer? Under 370 we offered the ability to frame a Constitution, and the ability to offer our Constitution subject to special exceptions. Your Lordships have not seen those exceptions. When Your Lordships see those exceptions, Your Lordships will appreciate that this is not a simple Constitutional Order. This is an order which is a product of bilateralism. And My Lords our Constitution by its very nature have so many checks and balances that bilateralism can be seen as at the imprimatur of our Constitution. So My Lord the only exceptional provisions where you can have unitary action are few, are limited and conditioned My Lord by a temporary   purpose. Having said that My Lord, may I just take you through a few documents so that I quickly make the point? 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: I also want to say one thing My Lord. I heard Mr. Sibal cite the decisions on Article 370 yesterday. There was one more Justice Nariman's decision, which needs to be cited. But My Lord, I want to just sum up and tell you, what are these decisions quintessentially saying. Justice Bhargava in Sampat Prakash, notes that the Constituent Assembly did not want to abrogate Article 370 and instead permitted it's continuance. When Your Lordship see that sentence with the resolution of the Constituent Assembly of Jammu and Kashmir, Your Lordships will be left with no manner of doubt that that is the correct legal position. The judgment in Damnoo, which was cited by Mr. Sibal is a case, My Lord, where there was an amendment to the Jammu and Kashmir Constitution by the Assembly which was called the 6th Amendment in Jammu and Kashmir first. And Jammu and Kashmir, said Sadr16 e-Riyasat will now mean Governor. And therefore My Lord, Article 367 was amended to bring it in accord with Jammu and Kashmir Constitution. That is the judgment of Justice Sikri. But more importantly My Lord, Justice Sikri refers to this very judgment in Kesavananda Bharati, and said that amendment did not alter the fundamentals or the basic structure for the Jammu and Kashmir Constitution. Now My Lords just a quick recount of dates, and I go straight to what needs to be seen. Your Lordships have been told that there was a 1939 Constitution. And that My Lord is documents Volume 6, page 199. I'm not going to read it, but one of the features of that Constitution My Lord, as Justice Gajendragadkar noted, is that the Maharaja and all legislative, judicial, all powers, all powers vested in the Maharaja under the 39 Constitution. On 26-10-1947, is where My Lord, Hari Singh signs the Instrument of Accession, Your Lordships have seen it. It is Document Volume 1, page 9. But it was not that kind of accession which many other Maharajas did for the reason, the other Maharajas signed supplementary Instruments of Accession and merger agreements. Now, between the time he signs the agreement and the drafting of our Constitution, our Constituent Assembly did not ask the Maharaja to discover the will of people. They acknowledged that there should be a Constituent Assembly by which the will of the people of Jammu and Kashmir is ascertained. So My Lords, even though he was the titular head, in some sense the people of Jammu and Kashmir were acting now in a sovereign capacity to determine in a Constituent Assembly what should be their decision. This is the difference, My Lord, between the cases where agreements have been superseded or privileges have been superseded. And this case, why? Because when the accession happened completely, My Lord,   it was between the people of Jammu and Kashmir and India. Of course, My Lord, Your Lordships have been told, that on 27th October, 1947, Lord Mountbatten, the Governor General accepted the instrument of accession, that is document Volume 1, page 11, and 5th of March '48, My Lord, there was an interim Government, appointed by the Maharaja for administration. And 17th of October 1949, is the date when, Your Lordships have referred to it, Documents Volume 8, page 1173, when N. Gopalaswami Ayyangar, introduced Article 306(a). One day before My Lord, our Constitution was going to be adopted. One day. On the 25th of November '49, Maharaja.... 

CHIEF JUSTICE DY CHANDRACHUD: 25? Can you give a us date again? 

GOPAL SUBRAMANIUM: 25th

CHIEF JUSTICE DY CHANDRACHUD: November?

GOPAL SUBRAMANIUM: November '49. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: The Maharaja of Jammu and Kashmir said, "India is about to frame a new Constitution, and for the sake of continuity, the provisions of that Constitution must govern us till, such time as is necessary. That is at My Lord Documents Volume 4, page 379. My Lords, on 26th January, 1950 of course, our Constitution came into force. But now, I would like Your Lordships to go past this date, and please see first, the proclamation convening, the J&K Constituent Assembly, that is dated 01-05-51. And would Your Lordships kindly turn to Documents Volume 6, page 276. If Your Lordship sees this document, 276... 

CHIEF JUSTICE DY CHANDRACHUD: 276. 

GOPAL SUBRAMANIUM: This is the proclamation dated 1st of May '51 convening Jammu and Kashmir's Constituent Assembly. Whereas it is the general desire of the people of the State of Jammu and Kashmir, that a Constituent Assembly should be brought into being, but the purpose of framing a Constitution for the State, whereas it is commonly felt that the convening of the Assembly, can no longer be delayed without detriment to the future wellbeing of the State. And whereas terms of the proclamation of the Maharaja dated 5th of March 1948, in regard to the convening of a National Assembly, as contained in Clauses 4-6 of the operative power, therefore, do not meet the requirements of the present situation. Which is why, My   Lord, the change of language. And please see, "I, Yuvraj Karan Singh, do hereby direct, a Constituent Assembly, consisting of representatives of the people, elected on the basis of adult franchise, shall be constituted forthwith, for the purpose of framing a Constitution for the State of Jammu and Kashmir. Then, of course My Lord, there was the other logistics were set out in the rest of the proclamation. Now My Lords after this, the Constituent Assembly of Jammu and Kashmir meets and by this time, because of the Instrument of Accession that certain entries in the union list on the three subjects My Lord, can be made applicable. The First Constitutional Order of 1950 was passed. And that Your Lordships will find is in Document Volume and please see page of that document volume. And this is My Lord, the 1950 order. And Your Lordships will notice that this 1950 order takes place in consultation with the Government of Jammu and Kashmir because these are all in respect of matters connected with accession. Now, My Lords the second schedule also applied some provisions of the Constitution because there must be a Parliament there has to be an acknowledgment to Parliament, and Your Lordships will find there are three columns, My Lords in the schedule two. One is provisions of the Constitution applicable the second is exceptions, and the third is modifications. And Your Lordship will notice at page 7, in part 11, on the extreme right, Clause of Article 246 shall apply subject to the provisions of paragraph of this order and Clauses and of 246 shall not apply in relation to the State. This order My Lords, as Your Lordships have seen, is the first order. Now My Lords, alongside let me take you to the Assembly. This is the beginning. And now let us say, the Jammu and Kashmir Legislative Assembly itself. Your Lordships will find this in Documents Volume 7. 

CHIEF JUSTICE DY CHANDRACHUD: What page of Document 7? 

GOPAL SUBRAMANIUM: Yes, now would Your Lordships kindly look at page 32? I'm now trying to set out extraordinary goodwill between India and the State framing a Constitution and how it was expressed. Please see page 32. It's Appendix A. 

CHIEF JUSTICE DY CHANDRACHUD: Where was this? 

GOPAL SUBRAMANIUM: Page 32. PDF page 32, My Lords. Message of goodwill.

JUSTICE B.R. GAVAI: Running page 1391?   

GOPAL SUBRAMANIUM: Yes. Yes. That is the print page. And this My Lord, is the message from the President of the Indian Union. "On this historic occasion of the inaugural meeting of their Constituent Assembly, I send my sincerest to greetings to the people of Kashmir and their beloved leader Sheikh Abdullah in the hope that the assembly will guide it in its deliberation by the single aim of shaping the life of the people of Kashmir as to make them happy and prosperous. And then My Lord, Your Lordships may kindly come to page 250 PDF. 

CHIEF JUSTICE DY CHANDRACHUD: Of the same volume? 

GOPAL SUBRAMANIUM: Of the same volume. Your Lordship sees after in quotation marks, Sheikh Muhammad Abdullah reads and he says and that My Lord is only to indicate how they set about their debates. "This Assembly which is the centre of our hopes and aspirations, held its first meeting in the first week of November, 1951. It is now meeting again after an interval of the nearly months. In the last session, I had drawn your attention to the fact that though this Assembly possesses the unquestioned right to decide the future of the country and that this House is going to exercise this right to the fullest measure. Nevertheless, where anyone to question the right of the Assembly to do so, we would be prepared to seek the verdict of the people outside on this question and all that need be done in this connection is to create necessary conditions which would enable people to express their will freely." Then Your Lordships may kindly see 257. If Your Lordships see in the middle, this precisely is the important... see Section 370, of the Indian Constitution. The sovereignty and unfettered powers of the Constituent Assembly have been recognized by the Indian Parliament. The present constitutional relationship between Kashmir and India has time and again been made clear by the Indian Government and it's prominent leaders. The speeches made by late Sardar Patel, Gopalaswami Ayyangar and Nehru himself in this behalf are still fresh in the memory of people. Then, My Lords please come to page 796. My Lord, just as our Constituent Assembly had established committees, as Your Lordships recollect, to frame Articles for different purposes, similarly, the Jammu and Kashmir Constituent Assembly did the same thing. So they had a basic principles committee. What are the basic principles on which that Constitution will be framed? And Your Lordship will find, this is the report at page 796 and Your Lordships will notice, the first, 'the basic principles of the State Constitution will contain provisions relating to the form of the State, the executive, the legislature, the judiciary, the Public Service Commission, the official language and other ancillary matters. The recommendations of the committee in regard to these matters are contained herein below.' And please see My Lord,   the first line, 'The State of Jammu and Kashmir will comprise such territories, which form the part of the State on 15th of August '47, while retaining its autonomous character, the State will continue to remain acceded with the Union of India. The sovereignty of the state resides in the people therefore, and shall accept with regard to matters specifically entrusted to the union we exercised on their behalf by the various organs of the State. The governing features of the State Constitution would be based on democracy, equality and social and economic justice.' So My Lord, they gave the broad outline of who will be the Head, elected Minister, who will be the members of the Legislative Assembly, and please see page 798. The second para. "The judiciary of the State will be independent of the executive." And then My Lord, they write about the High Court and the High Court will also be a Court of Record. Then My Lord, appeals will lie to the Supreme Court. All this My Lord, is a part of the framework. And finally we come My Lord to page 800. The State of Jammu and Kashmir.

JUSTICE B.R. GAVAI: 800.

GOPAL SUBRAMANIUM: The second para, My Lord. "The State of Jammu and Kashmir, having acceded to the Union of India, it becomes necessary to define the relationship of the State with Centre. This relationship was originally based on the Instrument of Accession, whereby the State of Jammu and Kashmir are acceded to the Union of India, in matters of defence, foreign affairs, and communication. When the dominion of India became a Republic, the relationship of the State with the Union was embodied in Article 370, of the Constitution. The State's accession to the Union entails, certain responsibilities on the Centre, for protecting the interests of the State and also for its social and economic development. In order to enable the Centre to discharge its responsibilities, which devolve upon it under the Constitution, those provisions of the Constitution of India, which may be necessary for this purpose, should be made applicable to the State in an appropriate manner. While preserving the internal autonomy of the State, all the obligations which flow from the fact of accession and also its elaborations contain should find an appropriate place, in the Constitution." And then My Lord, please notice the recommendation (i). "That a Directive be issued to the drafting Committee to bring up appropriate proposals defining the sphere of Union jurisdiction in the State suggesting additions, modifications and amendments, necessary to the Constitution application of Jammu and Kashmir order, to suit the requirements of the State." So My Lord, my submission is that the Constitution of India was made applicable, with exceptions and modifications, as a part of the Constituent Assembly's decision. It was not, My Lord, an imposition by the President at all. And Your Lordships would see, just at the bottom, "The Drafting Committee should forthwith take up the drafting of the Constituent for the State in the light of the recommendations contained in the report, in such other reports, as have been   adopted by this Assembly, from time to time."" Now, My Lord, the Drafting Committee did make a report and let me take you straight My Lord to that. Your Lordships will find this at PDF page 936. At the bottom, Your Lordships notice, 11th of February 1954. This My Lord, is the report of the Drafting Committee. "In pursuance of the directives contained, in the reports of the Basic Principals Committee, and the Advisory Committee on Fundamental Rights and Citizenship, as adopted by the House, the Drafting Committee has considered the question how best to give effect to the recommendations embodied, in these reports. The task which the Committee has to discharge requires action in the following directions. Number one, preparation of the drafting Constitution of the state defining the sphere of Union jurisdiction in the State and for that purpose, suggesting the various provisions of the Constitution of India, along with modifications and exceptions subject to which these provisions should apply to the state. These would include appropriate modifications and exceptions in part 2, that is, 'citizenship' and part 'fundamental rights' in their application to the State of Jammu and Kashmir in the light of the recommendations contained in the report of the Advisory Committee on Citizenship and Fundamental Rights. But My Lord please see number two, consequential amendments in the Jammu and Kashmir Constitution Act 1996, that is My Lord the 1939 Constitution. My Lords, that 1996 is the 1939 Constitution. Now let us go forward. Please see the last para of that page. The annexure to this report while reflecting the desire of the House for the ratification of the accession of the State with the Union of India indicates in detail provisions of the Constitution of India which generally correspond to defence, foreign affairs and communication, and such other matters, as are considered essential concomitance of the fact of accession. In accordance with the directions contained in the reports referred to above, the Committee has endeavoured to clearly demarcate the sphere of Union jurisdiction keeping intact all along the residual powers of the State. And My Lords, this has an annexure at the bottom. As Your Lordships see, My Lords, the Annexure-A to the drafting report. This My Lord is drafted by the Constituent Assembly. This Annexure-A. The provisions of the Constitution which in... Sorry, I'm sorry.I'm sorry My Lord. The provisions of the Constitution of India which, in addition to Article and 370... My Lord, this article and 370 is in the forefront of this annexure... Should apply in relation to the State of Jammu and Kashmir, and the exceptions and modifications subject to which they should so apply will be as follows. So My Lords, preamble, then Your Lordships will see this proviso to Article 3. It says, cannot be introduced without the consent of the Legislature of the State. My Lords, all these are the exceptions and modifications wanted by the Constituent Assembly of Jammu and Kashmir to apply the Indian Constitution. And Your Lordships will also notice that this provided under Article 32(2)(a) PDF page 940. There's a modification of Article 32. Please see page 940 of the PDF at the   bottom, 2(a). Without prejudice to the powers, confirmed by Clauses and 2, the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government within whose territories ... those territories, directions or orders or writs, including writs in the nature, Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiori on any of them, for the enforcement of any of the rights conferred by this part. And then My Lord, Article 35, Your Lordships will find protects the laws which were made specially at the time of the commencement of the order. And that's why My Lord, you have Article 35(a) at PDF 941, about permanent residence and they being specially protected. But My Lord this annexure goes on and on. Now, what Your Lordships see at 942? PDF 942, is part 11. In Articles 246, the words notwithstanding anything in Clause and occurring in Clause and and and shall be omitted. What they did was, they applied some parts, omitted some parts. That is they omitted part for States, they omitted part 7, they omitted part 8, they omitted part 9, they omitted part of the Indian Constitution. And they applied this Constitution. And this My Lord, Your Lordships will notice is verbatim. The '54 order, My Lord. And if Your Lordships will now kindly come to 949 PDF? I'll now show you the resolution. I'll show My Lords, the Constituent Assembly forwarding it to the Government of India. Please come My Lord to 949, bottom. 'Sir, the report is before the House.' Mr. Dogra. 'It is being discussed for the last two days. When it is adopted by the House, the long standing desires of this country for which we have been trying for the last six years will be fulfilled. It's adoption by the House will make the accession of this country to India permanent. We are acceding to that India, which is the defender of peace and which is trying to check the possibilities of war. It in any part of the world, war breaks out or any disruption is created, India extends a hand of friendship and peace and saves the part of the world from the disaster of war.' All this My Lord is said. Then please come to, My Lord again, they speak feelingly about India and India offering the hand of friendship. My Lords, that is stamped all over the debates. All over the debates. Your Lordships will find very adulatory, praiseworthy references My Lord. But now, let us come My Lord to the resolution which Your Lordships will find, is at...The resolution is page 978. This report was accepted. This annexure. Please come My Lord to the end of the page 978, Girdhari Lal Dogra. 'Sir, I beg to move the following resolution. Resolution that having adopted the report of the Drafting Committee and   (b), having thus given its concurrence to the application of the provisions of the Constitution of India, in the annexure to the said report. This Assembly authorizes the Government of the State to forward a copy of the said annexure to the Government of India for appropriate action.' And at the bottom My Lord, is the Chair at page 979 he resolves, it's to the same effect My Lords. Now My Lord this report is sent to the Government of India from the Constituent Assembly. Now My Lords, the '54 order, which has now been superseded, is, kindly see this is C.O. 48. This is My Lord, 1954. But before 1954 My Lord, they also passed a resolution under Article 373, which Your lordships will find, is reflected at C.O. 44. Please see page My Lord, PDF page 12, this is Documents Volume D3, page 12. 

CHIEF JUSTICE DY CHANDRACHUD: Volume? 

GOPAL SUBRAMANIUM: Volume 3, My Lord. 

JUSTICE SANJAY KISHAN KAUL: C.O. 44? 

GOPAL SUBRAMANIUM: C.O. 44. My Lords, all these COs were My Lords, Constitutional Orders. That is why they have that nomenclature. And please see this, My Lord. "The Constituent Assembly was conscious of what it was doing and it said,, in exercise of the powers conferred by Clause of 370, of the Constitution of India, the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, is pleased to declare, that as from 17th November '52, the said Article 370 shall be operative, with the modification, that for the explanation enclosed one, the following explanation is substituted." So, My Lord, you have one order under 373, which says the only change we want in 370, is the change of the explanation from the Maharaja to Sadr-e-Riyasat. The second is, they have asked for an application, of the order, that is My Lord, the '54 order, also stating, that Article and 370 will continue to govern Jammu and Kashmir. Please see that. Now, My Lords this is the '54 order, which is at PDF page 13. And if Your Lordships see, this order, in exercise of powers, conferred by Clause of... 

CHIEF JUSTICE DY CHANDRACHUD: Where do we see that Mr. Subramanium? 

GOPAL SUBRAMANIUM: Sorry, so sorry My Lord?  

CHIEF JUSTICE DY CHANDRACHUD: Next page? 

GOPAL SUBRAMANIUM: This is page My Lord PDF. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: Now, please see, My Lord, it says, Article 2, "The provisions of the Constitution, which, in addition to Article and Article 370, shall apply in relation to the State of Jammu and Kashmir, and the exceptions and modifications, subject to which, they shall so apply, shall be as follows." All these My Lord, correspond to Annexure A, resolved by the drafting. Your Lordships have seen… the Constituent Assembly, that Annexure A, which was forwarded to the Government of India. This is that Annexure A. This is My Lord, in response to My Lord, the Chief Justice's question again yesterday, "Was there any action of affirmation, by the government?" This is the action of affirmation. And now Your Lordships will see, their Constitution recognizes, the Constitution of India, as applied to Jammu and Kashmir. I'm going to show that My Lord, in a moment. So My Lord the two articles speak to each other. The two constitutions speak to each other. But that could happen only through 370. And now let us look at My Lord, the Jammu and Kashmir Constitution. As I told Your Lordships, there were so many parts of the Indian Constitution which were accepted in the 54 order. So My Lord, in their Constitution, they first recognized the Indian Constitution. They said, " we are an integral part of India", they said "we have powers to legislate, except where Parliament of India has powers to legislate". And they, My Lords, created their Legislature. Their Statehood, My Lords, is defined by their Constitution. And now let us look at My Lord the J&K Constitution. Your Lordships will find that in Volume Documents please. This is, My Lords, it starts at PDF page 1, and if Your Lordships will straightaway, come to the 'Preamble of the J&K Constitution'. Justice Nariman has also extracted it in his judgment. But My Lord, this is a collective decision of the people and "We the people of the State of Jammu and Kashmir, having solemnly resolved in pursuance of the accession of this State to India, which took place on the 26th day of October '47, to further define the existing relationship of the State with the Union ofIndia as an integral part thereof, and to secure ourselves". And My Lords many parts have been inspired naturally from our Constitution. But My Lords, the word 'secular' Justice Kaul observed that the word 'secular' was not here. That's in some other part of this Constitution My Lord. There's another Article, which deals with the secularism. Now having said that My Lord, please come to over the leaf that is at PDF 70. They chose My Lords, 26th of January '57 to correspond to India's date, of 26th January '50. This Constitution may be called the 'Constitution of Jammu and   Kashmir'. And would Your Lordship, kindly come to Section 2(1)(a)? Most critical My Lord. This Constitution recognized My Lord, The Constitution of Indi a and how did it define the Constitution is important My Lord. It's defined in 2(1)(a). Constitution of India means, the Constitution of India, as applicable in relation to the State. So My Lord, we have an act of affirmance from Government accepting the suggestions that the Constitution should be applied. They say, "please apply it subject to exceptions and modification" and Government agrees. And My Lord they make Constitution of India means 'this Constitution. And My Lords, please see Section 147 should be interpreted in the light of this. That the Legislature can never touch Constitution of India, as applied to them. And My Lords, the question will be, "where does anybody get the power to abrogate this Constitution?" This is the central question in the case. Now My Lord, in addition, now please read Article of this Constitution in this manner. And My Lord, it is necessary that relationship of the State with the Union of India, 'the State of Jammu and Kashmir is and shall be an integral part of the Union of India.' It is an integral part, My Lord, on the strength of the '54 Order and applying the provisions of the Constitution. And then please see territory. 'Territory of the State shall comprise all the territories which on the 15th of day were under the sovereignty or suzerainty of the ruler of the State.' My Lord this is the distinction which I answered in the morning in response to Justice Gavai's question. Please see 5. 'The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.' What My Lord was attributed, the expression residuary power but My Lords, this is the rest of the power excluding the powers of the Union Parliament, the rest is with the State Legislature. Now after this you have to only see two more provisions. One is My Lord, I request Your Lordships to kindly look at Section 92. But before that My Lord I mentioned, please come to page PDF 25. The Head of the State My Lord is under this Constitution, page 25. The Governor is appointed under this Constitution. The office of the Governor finds a place for Jammu and Kashmir in this Constitution. And Your Lordships will find Section is a Council of Ministers to aid and advice the Governor. Even this form of Government is enshrined in this Constitution. And now if Your Lordships come to Section 92, which is at PDF page 59. Your Lordships will find that this Section 52 is... 92, I'm sorry, is in stark distinction to the provisions in our Constitution. So, My Lords the purpose of Section 5, was that 370 must continue, the list allocation must continue, 246(2) and (3), must not apply. But now let's look at 92.   'If at any time the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may assume to himself any or all functions of the Government of the State, make incidental and consequential provisions and so on.' But Your Lordships notice he is not in a position to exercise the powers of the legislature and he has to do this My Lords, get popular government within six months. Because if you see 92(3), it ceases to operate on the expiration of six months from the date on which it was first issued. So My Lord popular representative government is a part of the architecture of Section 92 of the Jammu and Kashmir Constitution. My Lords as I mentioned, the High Court is constituted under this Constitution, PDF, page 61. Page 61, My Lord. Your Lordships will see 93, 94 and 95, they're referred to My Lord, consultation with Honourable the Chief Justice of India. And then, please see My Lord, the powers of the High Court, at PDF 65. And now Your Lordships will find, that that '54 Order, was treated as a part of law applicable to them. Please see this at 65, Article 103. When Your Lordship read the '54 Order, I show 32(2)(a). 32(2)(a), My Lord, is only in the '54 Order. And here Your Lordships will notice, "The High Court will have power to issue directions with other than those mentioned, in Clause 2(a), of Article of the Constitution of India." My Lord, therefore, the linkage between the '54 Order and the Constitution of India, as applicable, has been cemented by the Jammu and Kashmir Constitution, as well. And which is why the last provision My Lord, which I have to show you, is the amendment to the Constitution, 147. It has already been read. But My Lord, it is significant, that the architecture of the second proviso at PDF page 85, makes non-derogable, non-derogable, and application of Indian Constitution provisions non-derogable. Please see that, "Provided further, that no bill or amendment, seeking to make any change in this Section, or the provisions of Sections and. also My Lord, is about their autonomy of lawmaking. is, of course, integration with India or provisions of the Constitution of India, as applicable in relation to the State." So My Lord, the provisions of the Constitution of India were not applied only through a 370 order. They were embraced into the Jammu and Kashmir Constitution. So, My Lords, I conclude this portion by the submitting, that when we read Article 370, we should not be waylaid, by that marginal expression, 'temporary', in the marginal note. But the entire article has worked out, everything has worked out. It would be incorrect to say 373 is otiose. No. In terms of 370, they said, we want to continue 370 and one, we want only these exceptions to the Constitution, which means they have expressly affirmed by a resolution, that they don't want it to be abrogated. It is an express act of resolution and that express act of resolution, is accepted My Lord, by the Government and the order is passed. So My Lords, I   submit, that the vexed question, as if the Constituent Assembly was silent, about the fate of 370, it is not correct. On the contrary, they wanted its continuance. They wanted it to be...they wanted this to be the language of communication My Lord, between the two Constitutions. So My Lord if the Constituent Assembly of Jammu and Kashmir, which is the body of the people, if they have taken these proactive steps, we have accepted these steps, the question which arises for those is "Can we now abrogate this arrangement by that too unilaterally? Unilaterally. Can we, My Lords, can India ever... can we ever abrogate this arrangement?" My Lords, there is nothing called 'hierarchies' in Constituent Assembly in the definitions. Your Lordships will find theorists have written any number of books on Constituent Assemblies. The nature of the constituent power, My Lord which is exercised by an Assembly is as pristine and pure as any Assembly. This is the equality which we have practiced My Lord. This is the level of statesmanship which India practiced and waited. Nothing was done in a hurry, and My Lord nothing was imposed. Whatever the Constituent Assembly wanted, we accorded, we accorded it. My Lord, this is the most important aspect. If this factual foundation and this is beyond doubt if this is so My Lord, the question is ' can the Legislature of a State under the Jammu and Kashmir Constitution be rendered redundant?' Can it be rendered My Lord redundant? And then the question My Lord is, "what is the effect of those two seals. 272, 273. We'll go straight to them. You have only got to apply My Lord the degree test, effect test. What does it do? 272, 273. Let us look at both these orders and let us see My Lord whether the power has been exercised in alignment with the purpose of the Article. My Lord, the theory of ultra vires in Constitutional Law can be either in violation of power three or unsupported by lawmaking power. But there is a third species of ultra vires if it is not aligned to the purpose for which it has been entrusted. Then, in that case My Lord, it is an action which is ultra vires. These two Constitutional Orders. If Your Lordships will kindly see with me, are in Documents Volume 3. And Your Lordship will find that PDF 101 is the first. Now My Lord, the power which is now exercised as Your Lordships can see is 'the power under 370'. The issue before us My Lord is 'can the architecture of Article 370 obviate the requirements of the views of the other?' I am putting others. I'll develop what is meant by 'other'. 'The views of the other'. This is either the State Legislature or the State Government. My Lord this is an article which contemplates that there is a State and a State Legislature and a State Government within the scheme of the Jammu and Kashmir Constitution. And it has been used under Clause 1. In my submission, the purpose of power under Clause My Lord, is based upon the principle of mutuality. Because My Lord the Article begins with the President, it doesn't mean that it is some untrammelled power. No. But there is an interesting thing in Article 371, notwithstanding anything contained in the Constitution. That notwithstanding was necessary because there could be exceptions and modifications to provisions of the Constitution,   especially for Jammu and Kashmir. And notwithstanding anything contained in this Constitution also tells us the supreme nature of this provision under 370. So My Lords if we look at the components of basic structure, we have to look at the components of the basic structure, as is reflected from the J&K Constitution which applies the Constitution of India as applicable. Can that be abrogated by a reference to the power under 371? 371, My Lord was a means of communication, was to respect each other. But that order does not contain a power if I may say so with great respect, to abrogate a legal compact. It is a legal compact My Lord. And this legal compact is of two kinds. One of course, it's the traditional social contract theory but this compact is founded on federalism. That's why My Lord, leading authors on federalism, they often say that this is a different kind of social contract, federalism. So 370 established the contours of this relationship in the federal sense. My Lord this federal principle must be read as inbuilt in the application of Article 370. And that My Lord cannot be abrogated. Now please read the order with me. 'In exercise of powers conferred by Clause 1, of Article 370, the President...'And let us My Lord concentrate on the next few words, 'with the concurrence of the Government of State of Jammu and Kashmir.' What is that government contemplated by Article 370 is the question. It was a Government which was elected and accountable to the Legislative Assembly under the J&K Constitution. So, My Lords if it is so interpreted, this concurrence, which one must assume is the concurrence of the Governor, is not the constitutionally mandated agreement in 370. Now My Lord look at 1(2) of this order. "It shall come into force at once, and shall thereupon supersede the Constitution application to Jammu and Kashmir Order 1954, as amended from time to time."

CHIEF JUSTICE DY CHANDRACHUD: Apologies for the delay, Mr. Subramanium.

GOPAL SUBRAMANIUM: Not at all, My Lord. Not at all. Just before the midday recess I was inviting Your Lordships' attention to C.O. 272 itself. 

CHIEF JUSTICE DY CHANDRACHUD: You have made the point that para 1(2) says that C.O 1954 is superseded. 

GOPAL SUBRAMANIUM: Yes, yes. 

CHIEF JUSTICE DY CHANDRACHUD: That's where we left off at lunch.   

GOPAL SUBRAMANIUM: That's right. Now My Lords, the implications of this are quite serious. The implications of the abrogation of the 1954 order is completely serious and it is irreversible. The reason being, if Your Lordships may kindly take a moment Documents Volume 7, PDF page My Lord 978. PDF 978, Documents Volume 7. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: Your Lordships have seen at the bottom about the resolution. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. We saw that. 

GOPAL SUBRAMANIUM: Adoption of the committee and forwarded to the Government. And this My Lordship, if Your Lordships see over the page, 'Sir, it is essential that the report of the Drafting Committee, which the House has passed just now should be got incorporated in the Indian Constitution, in this connection the President of India may possibly issue a decree under Article 370. This recommendation shall become a part of the Indian Constitution according to the provisions of his decree.' And then Your Lordships notice at the bottom of that page 979. This is where My Lord it is adopted, authorizes the Government of the State to forward a copy of the annexure to the Government of India for appropriate action. And at page 990 My Lord, it's important. Please see this 990. Your Lordships will find PDF page 990. Mr. Dogra. 'Sir, this House had last taken certain important decision in respect of the application of certain articles and entries of the Constitution of India to our State. The recommendations of the House in this behalf, has been sent to the President of India, who in exercise of the powers conferred by Clause of Article 370, was pleased to issue Constitution Application to Jammu and Kashmir vide Order '54. I lay the copy of this order on the table of the House.' And, My Lord, when we look at the '54 Order, like Article 35A, which has a special provision in relation to the rights of residents, the same, My Lord, is actually mirrored in the State Constitution. Please first see, My Lord, the provision relating to Article 35A, which is at Documents Volume 3, page 15, My Lord. Your Lordships will notice at the bottom, 35A. 'After Article 35, the following new article shall be added, namely, notwithstanding anything in this Constitution, no existing law in force the State of J&K, and no law hereafter enacted by the legislature of the state defining classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir, or conferring on such permanent residents any special rights and privileges, or imposing upon other person, any restrictions as regards employment under the State Government, the acquisition of immovable property in the State, settlement in the State, or right to scholarships and such other forms of aid at the State Government may   provide, shall we void on the ground that it is inconsistent with, or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.' My Lord, exactly Sections to 10, Your Lordships may just make a note, which is in Documents Volume 2, is Section 6, My Lord, of the Jammu and Kashmir Constitution, defines Permanent Residence. Your Lordships will find that Documents Volume 2, PDF page 18. And there, My Lord, Your Lordships will find, after their definition and references. And Section says, they will have special provisions relating to permanent residence. Section 10…mark this My Lord. Section at PDF page 20, refers to the Constitution of India. 'The permanent residents of the state shall have all the rights guaranteed to them under the Constitution of India.' So, this is why the whole [UNCLEAR] abrogation of the 1954 Order, with respect My Lord, which is the indication of a symmetric federalism constitutionally recognized under 370, cannot be abrogated. Now My Lord, there are two more defects in that order. If Your Lordships will kindly come back to C.O. 272. Your Lordships will notice, then it says, “All the provisions of the Constitution, as amended from time to time, shall applied in relation to the State of Jammu and Kashmir”. Now, My Lord, this militates against the principle of exceptions and modifications which could be bilaterally urged and be granted. This does away with that bilateralism. This completely emasculates the bilateralism which is inbuilt in Sub-Article 1. And what it does, therefore, My Lord is, it applies the provisions of the Constitution, lock, stock and barrel, without the exceptions and modifications agreed to the State. And the exceptions and modifications subject to which they shall so apply, shall be as follows. So, a new exceptional modification is now carved out for the application of the entire Constitution. And that exceptions or modification, My Lord, is no more than, what is seemingly a change in a provision of interpretation. My Lord, the provision of interpretation or to aid interpretation is an aid to construction. It is no more than My Lord an aid to seek and designate the correct references of expressions in a Constitution. But if Your Lordship sees the new Clause that is D in this, please see the words of D. D says, 'In proviso to Clause of Article 370 of this Constitution, the expression Constituent Assembly of the State referred to in Clause shall read Legislative Assembly of the State.' Is this, My Lord, interpretation, is the question. Is this an interpretation? Is this exception permissible in a Clause of interpretation? My Lord in other words, if a Constituent Assembly and the Legislative Assembly of a State are by their very nature different bodies, they are different persona designator, then My Lord it cannot be an interpretation that the expression Constituent Assembly of the State referred to in Clause shall read Legislative Assembly of the State. This My Lord, is a direct amendment to Article 370(3). And that amendment cannot be achieved by an interpretation provision. This My Lord, insofar as 272 is concerned. Let's look at the next order which is 273. 

JUSTICE SANJAY KISHAN KAUL: Page number?   

GOPAL SUBRAMANIUM: And this is My Lord, PDF would be 103. This is a declaration under Article 373 of the Constitution. 

CHIEF JUSTICE DY CHANDRACHUD: Mr Subramanium, you are saying that what is done by Clause D of para of C.O. 272, is it directly amends Article 370(3), the proviso. And that this could not be done by resorting to the form of an amendment of the interpretative provision, which is Article 367. What if they have done that by issuing an adaptation order? 

GOPAL SUBRAMANIUM: My Lord, now an adaptation order, which takes place under 372. I'll just show that My Lord because that's very interesting. An adaptation order can be passed whenever a law prior to the commencement of the Constitution, which continues as on the date of the commencement of the Constitution, needs to be brought in conformity with the Constitution, the President, My Lord, can pass an adaptation order. But....

CHIEF JUSTICE DY CHANDRACHUD: There's also a power to exercise under the second proviso to Clause 1? 

GOPAL SUBRAMANIUM: Yes, I'm coming to that. I'm just coming it if Your Lordships... 

CHIEF JUSTICE DY CHANDRACHUD: What if they have exercised the power? I mean, because we have to test whether the power is sustainable with reference to any of the other proviso. 

GOPAL SUBRAMANIUM: Certainly. I'll just do that. 

CHIEF JUSTICE DY CHANDRACHUD: What if they have exercised power under the second proviso to Clause 1? 

GOPAL SUBRAMANIUM: Let us look at that My Lords. If Your Lordships straight away can see that at this juncture. Please see My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: The 272 says that it is issued under Clause of 270. Sorry. 370. 

GOPAL SUBRAMANIUM: Yes. The second one My Lord, see your 273 is a clear order under Sub-Article 3.   

CHIEF JUSTICE DY CHANDRACHUD: Right. C.O. 272... 

GOPAL SUBRAMANIUM: Yes. CHIEF JUSTICE DY CHANDRACHUD: Is specifically issued under Clause of Article 370. 

GOPAL SUBRAMANIUM: That's right. 

CHIEF JUSTICE DY CHANDRACHUD: Now the only provision of Clause of 371 which would apply is Clause D. 

GOPAL SUBRAMANIUM: Yes My Lord. That's right. And let us see D, My Lords. 

CHIEF JUSTICE DY CHANDRACHUD: Because if they are abrogating.... if they are abrogating, for instance, C.O. 1954... 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Or they are for instance making an adaptation to the Constitution both are referrable to the power under Clause (d) of... under Sub-Clause(d) of Clause of Article 370. 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: In which case the only requirement under the proviso...I shouldn't say only requirement but 'the' requirement under the second proviso is...the first proviso is that you have to consult with the Government of the State if it relates to a matter covered by the Instrument of Accession and the concurrence of the State Government if it is a matter otherwise than what is covered by the Instrument of Accession. Which will then lead us to who was the State Government when they issued the order. 

GOPAL SUBRAMANIUM: My Lords the question would be...   

CHIEF JUSTICE DY CHANDRACHUD: As powers of the State Government at that stage and for this argument we will test it on the basis that the powers of the State were validly vested in the President of India. 

GOPAL SUBRAMANIUM: My Lord on the demurrer we will proceed that he had powers. 

CHIEF JUSTICE DY CHANDRACHUD: Exactly. Yes. 

GOPAL SUBRAMANIUM: We will proceed on that footing. But, the question is, can he exercise the powers under this proviso is the question. In other words, what I'm submitting for Your Lordships kind consideration is as follows. The expression State Government for the purpose of 370 by the very nature of that article contemplates and validly elected democratically constituted State Government accountable to an Assembly. Sans that...Sans that, I submit with respect there is a polarity in 370's architecture i.e. President on the one hand and the State Government on the other. That polarity My Lord under 370 cannot be merged, and the President cannot advice himself...

CHIEF JUSTICE DY CHANDRACHUD: Are you for a moment suggesting that when a proclamation under Article 356 is in operation, there is a fetter on the exercise of the power under the second proviso to Clause-D of Article 370. 

GOPAL SUBRAMANIUM: My Lords that is why with respect I'm submitting, Yes. I am actually submitting that the fetter My Lords is for the purpose of exercising 370. My Lords if Your Lordships don't mind... 

CHIEF JUSTICE DY CHANDRACHUD: At the highest is not...at the highest and the best is not an express fetter. It's an implied limitation, which you are reading into, arguably. 

GOPAL SUBRAMANIUM: It is an implied limitation. It is an implied limitation but even though it is implied, it is strongly expressively architecture of the whole of 370. If the whole of 370, if Your Lordships accept my submission...respectful submission is a manifestation of the Constitutional Principle of Federalism in a manifest way. Then, in that case, My Lord, it is necessary that both parts of the federal principle must be available for enabling an exercise of the power under 370. And there is a reason My Lord. There is an additional reason. This Article 370 is not like My Lord what we call as provisions of conditional legislation. Article 370 is application of provisions of Constitution. That My Lord by itself is a Constitutive Act. My Lord this provision under Article 370 applying the provisions of the Constitution is also a   Constitutive Act. And if it is going to be adjoined or actually sanctioned or concurred with by the State Government or by the Legislature, as the case may be, it is necessary, My Lord that that polarity, that dual Act as being on the scene is a sine qua non under 370. 

CHIEF JUSTICE DY CHANDRACHUD: The second aspect Mr. Subramanium which I thought I'll just place at this stage. I didn't want to place it at the stroke of lunch, which was while our Constitution does speak about the Constituent Assembly of the State of Jammu and Kashmir, which was then in contemplation at the date of our Constitution on 26th of January 1950. Significantly after 26th of January 1957, our Constitution does not speak of the Constitution of Jammu and Kashmir at all. 

GOPAL SUBRAMANIUM: My Lords I'll say with great respect. The reason being that the Constitution of Jammu and Kashmir was a product which envisaged because there was a Constituent Assembly. But the way it has happened is, the Constitution of India My Lords, the applicable provisions were brought into the J&K Constitution, and the J&K Constitution had its own chapters which I have pointed out to for Your Lordships consideration establishing its frame work. 

CHIEF JUSTICE DY CHANDRACHUD: Therefore, our Constitution speaks of only one institution, namely, the Constitution of India, and the Constitution of India as it applies to the State of Jammu and Kashmir, subject to modifications and exceptions. 

GOPAL SUBRAMANIUM: That’s right, My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: Therefore, the only document, the only compact or the only basic document that is within the contemplation of our Constitution, is this Constitution itself. 

GOPAL SUBRAMANIUM: I agree. But, My Lord now, the question is, was J&K Constituent Assembly not tasked with the framing of a Constitution, that is clear from Sub-Article of 370? Under 370(2) and (3) My Lord, if Your Lordship sees both these Articles… 

CHIEF JUSTICE DY CHANDRACHUD: … post 1957...Post 1957, neither the Government or the Legislative Assembly of Jammu and Kashmir, nor for that matter, the political establishment in the rest of the country represented by Parliament, nobody ever thought of amending the Indian Constitution to bring the Jammu and Kashmir Constitution expressly within the fold of the Indian Constitution.   

GOPAL SUBRAMANIUM: My Lord, it may not be necessary, I'll tell Your Lordship why, if I can, My Lord? If I may humbly urge for Your Lordship’s consideration? The Constitution for Jammu and Kashmir is intended to be applicable to the State of Jammu and Kashmir. But, it is a Constitution because it is framed by a Constituent Assembly. 

CHIEF JUSTICE DY CHANDRACHUD: But the Constitution of Jammu and Kashmir imposes limitations on the power, on the executive power of the Union, and on the legislative power of and the organ of the Union, namely Parliament? GOPAL SUBRAMANIUM: The Constitution of J&K doesn't impose any fetter. 

CHIEF JUSTICE DY CHANDRACHUD: The Constitution of J&K refers to the fact, that the residuary power would be vested with… 

GOPAL SUBRAMANIUM: Yes. My Lord, just forgive me. I’m obliged, I’m obliged. 

CHIEF JUSTICE DY CHANDRACHUD: It’s a clear fetter. I’m just giving you one example of the fetter. But therefore, there are fetters in the J&K Constitution on the operation of the Union Constitution. 

GOPAL SUBRAMANIUM: My Lord, this is actually the asymmetry. 

CHIEF JUSTICE DY CHANDRACHUD: What is not necessary after 1957, for the Constitution of the Union, which is now the only Constitution for the entirety of the country, including Jammu and Kashmir, which had acceded too. 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Was it not necessary for the Indian Constitution to be amended to recognise some other Constitution as an intrinsic part of this Constitution? 

GOPAL SUBRAMANIUM: My Lord, what they did was, in the Order, ‘54 Order… I'm answering My Lord, the Chief Justice's question, as an example. I'm answering the question, My Lord. If Your Lordship sees the ‘54 Order, the subject of stateless was omitted in its application. So, what we have done is, with the help of the ’54 Order, we have imposed fetters on the Constitution. My Lord, that's the point for Your Lordships to consider. The ‘54 Order,   by saying that under Article 246 only Article will be read, 2, 3, and were initially omitted in the ’54 Order. Subsequently, My Lord, and were omitted, only and were retained. And, in the list, namely, in the 7th Schedule, the state list was completely omitted. It has been omitted, My Lord, in the order itself. So, what I'm submitting is, when Your Lordship said that there is a certain degree of denudation of power, which otherwise is available under the Constitution… like say, for instance Entry 97, My Lord. Entry 97 of List 1. But, Entry 97 of List 1, was in the ‘54 Order deleted. But, in their Constitution, they have said, whatever is their domain of Parliament, whether it is in the concurrent list or in the union list, it is entirely for Parliament to frame laws. The rest of it will be the residuary powers of the State Legislature. So, this is what I meant, that the two talk to each other. The orders, that is, 370 Orders and the Jammu and Kashmir Constitution, they both speak to each other. As Your Lordships rightly said, there are some carve-out for Jammu and Kashmir. But, those carve-outs are volitionally done. Those carve-outs in the Order of 1954, by giving them this sense that you have freedom to legislate in your spheres, was a conscious carve-out. That is the point I am making. 

CHIEF JUSTICE DY CHANDRACHUD: That's the problem, Mr Subramanium. Because, as you rightly said that these were volitional carve-outs. So just as the Union has therefore issued those C.O.s, right from 1950, 1952, 1954, unless there is some higher constitutional preset which prevents them from modifying that carve-out, what is there to restrain the Union from modifying the terms of that carve-outs? 

GOPAL SUBRAMANIUM: My Lords, the... 

CHIEF JUSTICE DY CHANDRACHUD: Unless you make the Jammu and Kashmir Constitution a part of our Constitution to impose fetters on the, fetters on the power of Parliament or the executive. otherwise. 

GOPAL SUBRAMANIUM: My Lords, May I answer? 

CHIEF JUSTICE DY CHANDRACHUD: The question then arises about concurrence. 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Concurrence and consultation and they just decide whose concurrence was required in a State at a point of time when 356 is in operation. If we accept your argument, during 356, the operation of 356, you cannot exercise the powers under the second proviso to Article 370(1) (D) at all.   

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: If we accept that then you are home. You have lost completely. 

GOPAL SUBRAMANIUM: Yes. But My Lord I want to... 

CHIEF JUSTICE DY CHANDRACHUD: If you accept that during the time, that the power of the Union under the second proviso to Article 370(D) is not denuded when 356 is in operation, in that event the Union was clearly within its power. For instance suppose 356 is in operation, all the executive powers of the State are assumed by Union. Who issues an ordinance in the State? 

GOPAL SUBRAMANIUM: My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: The ordinance has to be issued in the State. 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Any State... State of the Union of India. Powers under 356 are assumed by the President of India, urgent circumstances arise, an ordinance has to be issued. Can the President not issue an ordinance for the purpose of that State? 

GOPAL SUBRAMANIUM: My Lord the difference is between, My Lord, a power to make laws. I am submitting for Your Lordship's consideration. A power to make laws... My Lord my submission is... My Lord, my submission is... My Lord, I wanted to answer Your Lordship's observations in serial order. The first is, Your Lordships asked about the Jammu and Kashmir Constitution being absent. It is not My Lords, it is absent, it is actually, there is a recognition of the position of the Constitution, because many parts of our Constitution under the ‘54 Order, were not applicable to the State of Jammu and Kashmir. That’s the first. The second is, My Lord, the Jammu and Kashmir itself has fundamental features, is acknowledged in a passage of Chief Justice Sikri in Kesavananda Bharati’s case, I’ll point it out. Thirdly, as far as, My Lord, the power under Article 356 is concerned, it is conditioned, My Lord, for a certain purpose. Your Lordships have already heard submissions on it. Article 370 does not… it is completely alien to the purpose of 356.   Article 370, My Lord, is a case where there has to be bilateralism in the very nature of things. If Your Lordships were to read the transposition of power in the Governor and in the President, then the net effect is, that even though Article 370 begins with a Non Obstante Clause, it will be completely… it will be rendered negatory. My Lord, the reason why special powers are there, are only when they are conditioned by emergent needs. The scope of 356 is emergency, and My Lord, it is well settled. Even whatever is done during a President’s proclamation in 356, cannot be irreversible. It cannot be final. My Lord, that is why, it is an interim arrangement for the continuance of the Constitution under 356. Under 356, My Lord, it is not intended to be a reservoir for power, for actually exercising powers under the Constitution which have nothing to do with emergency. They have nothing to do at all. Then My Lord, I say that 370 is outside the ambit of 356, because it is not germane to the purposes of 356. And 370 contemplates. And in my respectful submission, My Lord, 370 contemplates limitations on that power. These are, My Lord, express limitations. And, these limitations cannot be obviated by taking recourse to 356. That is the point I'm making. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: These are, My Lord, express limitations. So, My Lord, I submit with respect, 370 also, My Lord, is a power which is coupled with a duty. And the obligation, My Lord, under 370 is to act consistent with the very purposes of 370. And, the very purpose of 370, My Lord, was to enable another assembly to take a decision, and both of them work together. That is the scheme, as far as 370 is concerned.

CHIEF JUSTICE DY CHANDRACHUD: Mr. Subramanium, now what is your next limb of submission? 

GOPAL SUBRAMANIUM: Yes. Now, My Lord, the next limb of the submission, which I wanted to urge is, Your Lordships have looked at those four judgments under 370. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: My Lord, I need to bring something to Your Lordship’s notice in those judgments. Only what is relevant for my purpose. 

CHIEF JUSTICE DY CHANDRACHUD: Yeah.   

GOPAL SUBRAMANIUM: My Lord, all those judgments, in my view, postulate the continued existence of 371. And, the judgments clearly establish that, notwithstanding the cessation of the Constituent Assembly, 370 would operate. And, My Lord, there's a reason why it must operate. If the Jammu and Kashmir Constitution , My Lord, has to operate, 370 has to be in existence. The application of the provisions of the Indian Constitution can happen only through 370. And, because it has happened through 370, My Lord, 370 cannot be used to self7 destruct. It cannot be used to modify or amend itself. This My Lord, is established in the judgments itself of Your Lordships, which I'll presently point out. The second is, in Sampat Prakash, there is an express statement which is supported by legislative record, that the Constituent Assembly did not abrogate, but insisted on the continuance of Article 370. If that is so, My Lord, I submit, that Sampat Prakash takes the position that 370 is there to stay. And, My Lord, there is another important aspect. Why is it that the J&K Constitution was not taken note of by an express constitutional provision? The answer to that also is as follows, My Lord. The power to amend the J&K Constitution, being a Constitution created by a Constituent Assembly, can only lie with the body which has been created by that Constitution. That My Lord, is settled law, that if a constituent body or a constituent power prescribes a Constitution, and elects the body under that Constitution, the power to amend that Constitution will lie with that body. So, the body, My Lord, which is competent… I'm so sorry, My Lord… 

JUSTICE SANJIV KHANNA: Mr. Gopal Subramanium, on that there may be a slight issue for a simple reason. One, when we read the earlier part of 1954 order, it was quite clear that the Indian Constitution has been adopted to the omissions and modifications. We may call it the J&K Constitution, it may have been referred to as J&K constitution, but what is adopted is the Indian Constitution, with exceptions and modifications. One. Number two, Article 370 by very nature is very flexible and normally Constitutions are flexible in time and space because they are made once, but they last for a long time. Yes, we have the basic structure doctrine and that argument of yours that basic structure is there. But if you look at 370 itself, it's a flexible article. It says that modifications can be done to ensure that the Constitution of India, as applicable to the State of J&K should assimilate whatever is applicable in other parts of country. 

GOPAL SUBRAMANIUM: My Lord with respect, I think I have to give My Lord an absolutely candid answer. My reading of the Article 370...In the light of the structure of Article 370(1), (2), and (3), My Lords, orders may be issued under 370(1), but they have to be based on bilateralism. And that bilateralism is necessarily to involve what is agreed upon by the State or Internal Legislature. Sans the State, sans the Legislature, I submit My Lord, it will be... it   will not be consistent with constitutional principles to interpret 370 as if it can be done unilaterally. My Lord, the choices as follows, can the power be exercised under Article 370 unilaterally? My answer is, no. The second, Your Lordship said, it is a constitutional power. I completely agree. Third, but My Lord, asymmetric federalism, by its very definition, means special provision for special places or States. Like My Lord, you have provisions in, all in the Constitution. 

JUSTICE SANJIV KHANNA: That is basically is bilateralism and federalism, which is inbuilt in 370. If it is violated then it's.. then it cut... then that flexibility taken away. That's my question. 

GOPAL SUBRAMANIUM: Then it becomes ultra vires My Lord. Then it becomes ultra vires 370. I'm very obliged for putting that question to me. My Lord, I can't...So federalism and supremacy of the Constitution are My Lords conjoined principles. Both supremacy and federalism. And if both of them are injected or infused necessarily, in 370, then we have to see whether the exercise of power under 370 can be destructive of those principles. That is the point My Lords in this case. And it is a crucial point My Lord, which we must consider. The Jammu and Kashmir Constitution can be overturned, repealed by that Legislature. But it cannot be abrogated by us. My Lord, that Constitution is also a document. It is also a document, which is a legal document. It is both a normative document and a prescriptive document that has constituted the Legislature. The organs of the State have been constituted under that Constitution. It is My Lord, entitled to be noticed. That Constitution cannot be wished away or abrogated unless the power to override that Constitution can be located somewhere. My Lord, this is the point here that without there being an express provision in the Constitution to override the Jammu and Kashmir Constitution, My Lord, what Your Lordships will see in C.O. 273 cannot happen. C.O. 273, if Your Lordship sees now with me. My Lord, it abrogates the Constitution and that cannot be done at all. Please just look at the document. 

JUSTICE SANJAY KISHAN KAUL: Mr. Subramanium. 

GOPAL SUBRAMANIUM: Yes, I'm so sorry My Lord. 

JUSTICE SANJAY KISHAN KAUL: Mr. Sibal's own argument was that as the orders were issued from time to time, very little remained inside 370. Actually that was his argument that very little remained inside 370. So do you have any examples where these C.O.s were issued. There were any negative comment on it from the assemblies on any of the situations?   

GOPAL SUBRAMANIUM: My Lord that is what I'm submitting. All the C.O.s which Your Lordships will notice some were issued before the dissolution of the Constituent Assembly of Jammu and Kashmir. It's to dissolve on the 20... 

JUSTICE SANJAY KISHAN KAUL: We are talking about the post 1957. 

GOPAL SUBRAMANIUM: Yes. Now, post 1957, there were orders which were passed. Those orders were with the concurrence of the Government. They were with the concurrence under D. The are other provisions which Your Lordship mentioned. For instance, Article 356 I'll give Your Lordships as an example. Article 356 My Lord was omitted in the 1954 Order. It was applied for the first time in 1965 by a constitutional order and Your Lordships have seen that in Article 356 the words are...'In order, in accordance with the provisions of this Constitution'. So My Lord, in the constitutional order, Article 356 was applied, saying the provisions of the Constitution in Article 356 will mean provisions of the Jammu and Kashmir Constitution. I can show that order My Lord, just as an example. That 356 itself came much later. My Lords it is not correct to say that by virtue of 370 everything has happened. No. These exceptions and carve-outs have continued. These exceptions and carve-outs have continued from the '54 Order, which is why what is today abrogated is the parent Order 54, as amended from time to time. My Lords that is why it is necessary to bear in mind that these adaptations were based upon bilateralism. These modifications were based on bilateralism. My Lord one important feature which I may bring to Your Lordship's attention is, in Article 370(2) My Lord, there is a proviso, that the competent Legislature can pass a law even after a President passes an adaptation order. That My Lord is not existent here because the Legislature under 147 cannot do anything to the provisions of the Constitution as applied in Jammu and Kashmir. May I, My Lord? 

JUSTICE SANJAY KISHAN KAUL: Yes, Mr. Subramanium. 

GOPAL SUBRAMANIUM: My Lord, I may now straightaway point out to the two or three things in the decisions. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Subramanium, just one clarification I had. 

GOPAL SUBRAMANIUM: Yes certainly, please.   

CHIEF JUSTICE DY CHANDRACHUD: What happened to the instrument as a matter of law? What happened to the Instrument of Accession after the Constitution of J&K came into being? 

GOPAL SUBRAMANIUM: My Lord, that Instrument of Accession, My Lord, really speaking, after the Constituent Assembly decided to accede, it was ultimately, My Lord, that decision which operated. The Instrument of Accession, My Lord, was done initially, in ‘48 as Your Lordships recollect. But, in that Instrument of Accession, there was a clear reservation that I'm not making any commitment to abide by the Constitution. My Lord, there were some conditions, reservations placed in it. But, normally, My Lord, if suppose, accession had to take place through the Maharaja, then there would have been a Supplementary Instrument of Accession, and a merger agreement, as was done with many others. 

CHIEF JUSTICE DY CHANDRACHUD: No. Once, with the Constitution of Jammu and Kashmir recognizes that Jammu and Kashmir accedes to the dominion status of India, that it becomes a part of India.. 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: Would it be correct to say then, really that Instrument of Accession ceases to exist as an independent document, in that sense? 

GOPAL SUBRAMANIUM: No, My Lord, it did enable accession. For the purposes of sovereignty, My Lord… 

CHIEF JUSTICE DY CHANDRACHUD: What would be the status of the Instrument of Accession once the Constituent Assembly of J&K designed and promulgated the J&K Constitution? 

GOPAL SUBRAMANIUM: My Lord, if I may say so with respect, the Instrument of Accession is a historical fact. 

CHIEF JUSTICE DY CHANDRACHUD: [INAUDIBLE] … of J&K. Would it be subsumed in the State Constitution? 

GOPAL SUBRAMANIUM: I’m sorry, My Lord. It’s a historical fact.   

CHIEF JUSTICE DY CHANDRACHUD: Would it be subsumed in the State Constitution? 

GOPAL SUBRAMANIUM: Yes. Yes, My Lord. Because, the State Constitution itself recognizes the accession in ’48. May I show that, My Lord? May I show that? The Constitution itself recognizes this. RESPONDENT'S COUNSEL: It is subsumed now in Article 370. And only to the extent, Article 370 refers to it, it will be applicable. 

DINESH DWIVEDI: It has no use after 370, because it incorporates those matters in 370, automatically. 

GOPAL SUBRAMANIUM: Yes. My Lord, the Instrument of Accession was for a very limited purpose, at that time. But matters later on, as Your Lordships have seen, there was the Constituent Assembly, and accession was complete, and the Constitution of J&K itself has declared that integration to be complete. That was the decision. 

CHIEF JUSTICE DY CHANDRACHUD: Mr. Subramanium, the reason I asked you was this...Now I'll tell you why I asked you this question. Could it conceivably be that the fetter on the power of Parliament under Clause B as Article 371, was also a limited transitional provision which would operate so long as the Instrument of Accession held the field as an independent document? GOPAL SUBRAMANIUM: No My Lords. There is no evidence to that. 

CHIEF JUSTICE DY CHANDRACHUD: Once the Instrument of Accession gets subsumed in the post Constitution document evincing a transfer of power then to the extent of the Instrument of Accession itself held, being subsumed. Then the fetter on the power of Parliament cannot be relatable to the Instrument of Accession but has to be found somewhere else. GOPAL SUBRAMANIUM: My Lord, I am grateful. The fetter on Parliament is by virtue of 370 and My Lord have no direct relation with the Instrument of Accession. If I may just point out My Lords? 370 was there, as Your Lordships have seen in 1950. At that time there was only an Instrument of Accession. After the Constitution came into force, it is only in 1951 that the Constituent Assembly was constituted. And then My Lord, the Constitution was finally enacted   in 1957. But between '51 and '57...My Lord, the Instrument of Accession is already on the record. It is in document 1. 

CHIEF JUSTICE DY CHANDRACHUD: That we have seen. 

GOPAL SUBRAMANIUM: Your Lordships have seen. And that is very clear that it is a period of transition. But that period of transition and the fetter has been imposed on Parliament, My Lord, that was not the course of 370, if I may say so? I've understood what Your Lordships are putting to me that before a new sovereign body of legislature takes complete effect, is it not correct that the old is wiped out or there may be some purely transitory provision. But this is not transitory provision. That is why My Lord, if 370 in it's true essence is not treated as a transitory provision but is actually a substantive provision meant to operate over a period of time, then My Lord, it is clear that concessions which have been sought and granted by My Lord...again by the Union Government by accepting the recommendations of the Constituent Assembly, I submit My Lord with respect then they get embedded into law by operation of 370 as well as by virtue of section 2(1)(a) of the Government of Jammu and Kashmir Constitution. CHIEF JUSTICE DY CHANDRACHUD: Now, Mr. Subramanium you have given us the Constitution Bench decisions? 

GOPAL SUBRAMANIUM: Yes. 

CHIEF JUSTICE DY CHANDRACHUD: According to you postulate the continuance of Articles 

GOPAL SUBRAMANIUM: Thats right My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: We take your point on Sampat Prakash as well as... 

GOPAL SUBRAMANIUM: That was in para D. Now, My Lord this Judgment in Damnoo, which has been cited. I just want to, just take two minutes and I'll take Your Lordship to Chief Justice Sikri's judgment who makes a comment on this in Kesavananda Bharati. But My Lord in Damnoo's case the facts read as follows My Lords. The Jammu and Kashmir Legislative Assembly amended the Constitution of Jammu and Kashmir in 1965 by the 6th Amendment Act. As a consequence of the 6th amendment, they replace that expression 'Sadr-   e-Riyasat' with Governor. The Amendment first took place My Lord, in the J&K Constitution. Therefore in order to see that that was reflected viz a viz our Constitution in Article 370 there was My Lords, in the interpretation section, Your Lordships have seen that was varied. That My Lords was challenged. The Amendment was challenged. The Constitution Amendment, as well as My Lords the order in amending Article 367, one of the explanations was challenged in Damnoo's case. In Damnoo's case Chief Justice Sikri said that what has been done by the order explaining that the 'Sadr-e-Riyasat' is now Governor is in conformity with the Constitution, 6th Amendment of J&K and therefore, there is no impairment of the basic structure. But My Lords the learned judge has actually, if I may say so, relied upon an excerpt in Kesavananda Bharati. In Kesavananda Bharati, where My Lords the word power...the word amend was so widely worded. If Your Lordship sees one paragraph in Kesavananda Bharati i.e. My Lords, that is Case Law Volume 15, and the relevant portion which I wanted to show is para 306, PDF page 174. And Chief Justice Sikri refers to his own judgment. And he refers to it to support the position that the fundamentals of J&K Constitutions were not impaired. Please see para 306, PDF 174. Reference may be made to Mohd. Maqbool Damnoo vs State of Jammu and Kashmir, where this court repelled the argument of the Learned Counsel that the amendments made to the... 

CHIEF JUSTICE DY CHANDRACHUD: Mr Subramanium one second. You are on Case Law Volume 15? 

GOPAL SUBRAMANIUM: 15. 

CHIEF JUSTICE DY CHANDRACHUD: and PDF page? 

GOPAL SUBRAMANIUM: PDF page 174 My Lord. 

CHIEF JUSTICE DY CHANDRACHUD: 174. 

GOPAL SUBRAMANIUM: Yes, 306.

CHIEF JUSTICE DY CHANDRACHUD: Yes, Mr Subramanium. 

GOPAL SUBRAMANIUM: Yes, para 306 My Lords. Reference may be made to Mohd. Damnoo vs State of Jammu and Kashmir, where this court repelled the argument of the Learned Counsel that the amendments made to Section and of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution. The   arguments of the Learned Counsel was that fundamentals of the Jammu and Kashmir State Constitution has been destroyed. This argument was refuted in the following words. But the passage cited by him can hardly be availed off by him, for the reason that the amendment impugned by him in the light of what we have already stated about the nature of the explanation to Article 370 of our Constitution, does not bring about any alteration, either in the framework or the fundamentals of the Jammu and Kashmir Constitution. The State Government still continues to be the head... the Governor still continues to be the head of the government aided by a Council of Ministers, and the only change effected is in his designation and the mode of his appointment. It is not as if the State Government, by such a change, is made irresponsible to the State Legislature or its fundamental character as a responsible government is altered. And, then My Lord, please see the last sentence. 'There is no question of such a change being one in the character of that government, from a democratic to a non-democratic system'. 

CHIEF JUSTICE DY CHANDRACHUD: Yes. 

GOPAL SUBRAMANIUM: And, My Lord, I submit with respect, when we look at the exercise of power under 370, My Lord, it must be informed with the idea that it should not offend any of the basic principles of the Constitution. And, the two principles which I invoke, My Lord, are federalism and federalism as it subset has autonomy and consent. The principle of federalism My Lord, is always autonomy and consent. And the other principle My Lord, is the supremacy of the Constitution. So, supremacy of the Constitution here, My Lord, I wish to point out, that the purposes of 356 and 370 are not coincidental, they do not coincide. And, because they do not coincide, the exercise of power under 356 cannot clothe you with legal authority under 370. CHIEF JUSTICE DY CHANDRACHUD: Now what else remains Mr Subramanium?

GOPAL SUBRAMANIUM: My Lord, I’ve kept my word. I’ve honoured my word. I said I wouldn't take more than a certain amount of time. But My Lord, I would request Your Lordships to ask any questions Your Lordships may consider. 

JUSTICE SANJAY KISHAN KAUL: We've been doing this, Mr. Subramanium. 

CHIEF JUSTICE DY CHANDRACHUD: Thank you so much Mr. Subramanium. That was a very brief and very insightful. Thank you very much. 

GOPAL SUBRAMANIUM: Thank you very much. Grateful My Lord. 

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