16-08-2023

Transcripts Court Room No.- 01

Bench:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE B.R. GAVAI
HON'BLE MR. JUSTICE SURYA KANT

Item No.- 501

Case No.-

W.P.(C) No. 1099/2019

Parties:-

Senior Advocate Rajeev Dhavan to continue his arguments today.

Dhavan: This oral submission is in the nature of a dialogue- and a very important dialogue.

Dhavan: There seems to have been some misunderstanding on the status of merger agreements. The
question which fell from your lords was that once the IoA is over, sovereignty is complete.

Dhavan: Our submission is that 370, as far as IoA is concerned, it deals with external sovereignty.
External sovereignty is lost. The purpose of the standstill agreement was - what system would you
have in meanwhile?

Dhavan: Raja didn't sign the standstill. As far as internal sovereignty is concerned, the standstill
was very important.

Dhavan: Because all the powers of the Maharaja - retained their internal sovereignty.

Dhavan: Now come to the merger agreement. This agreement indicates the extent of
internal sovereignty.

Dhavan: If there was no standstill agreement and and no merger agreement - the Maharaja would be
absolute. So I take 370 to be a constitutional substitute for a standstill agreement- without
which we're lost.

Dhavan: Your lordships also asked that on 4th August what was the autonomy you
were going to lose?

Dhavan: The answer is none. It continues and has to continue to preserve the federation and
conditions under which the federation was made.

Dhavan: We have the greatest diversity. This diversity is unparalleled.

Dhavan refers the bench to the proviso of Article 3.

Dhavan: "It is mandatory for the President to refer the bill to the legislature". It is a condition
precedent before you invoke Article 3.

Dhavan: This cannot be done under the proclamation, under 356. It is a constitutional amendment
which is subversive of the constitution itself. If this suspension fails, president's rule will fail and it's
extension in July fails.

Dhavan: You have amended the constitution. And this mandatory provision takes us to the core of
mandatory requirements of Art 3. Because the entire J&K Reorganization Act emanates
from Art 3 and 4.

CJI DY Chandrachud: How do we deal with Art 356(1)(c)? So the president has the power to suspend
certain provisions of the constitution during the operation of proclamation under 356.

Dhavan: The suspension in this case goes beyond supplementing. It goes to actually take out a
mandatory provision.

CJI: Normally when the legislature uses the word "means" and "includes"- it's an indication of
expanding the power. So when the constitution says "make incidental and supplementary provisions"
and then says "including"- this seems to widen the ambit of earlier part.

CJI: "Including" would mean that what was otherwise not a supplementary or incidental provision, it
is within the ambit of presidential proclamation. Isn't it?

CJI: Suppose the president in a proclamation suspends the operation of any provision of the
Constitution - is that amendable to be challenged on the ground that it is not incidental or
supplemental? Or are these words widening the ambit of the first part of 356(1)(b)?

Dhavan: I have never seen a provision which actually uses it to take away a mandatory provision. This
is exceptional. If you expand 356(1)(c), then you will say that the president has a card to amend any
part of the Constitution.

Dhavan: 356(1)(c) has to be read with mandatory provision which it cannot dilute.

CJI: The proviso seems to indicate that if the constitution wanted to exclude a power from the
authority to suspend a provision of the constitution, that has been specifically defined.

CJI: The proviso says that you will not suspend anything pertaining to a HC, or you'll not assume to
yourself powers of HC during the operation of 356. So where it wanted to restraint, it did so.

Dhavan: It must relate to 356. Whatever is required to materialise 356, it must be related to that.
"Necessary" or "desirable" are not carte blance powers of president. Could he have suspended Part
III under 356? It has to be given a limited meaning.

Dhavan: It collapses democracy in a State!

Dhavan: If this proclamation is bad, then its extension in July is also bad.

Dhavan: Article 358 suspends Article 19 during the proclamation, not beyond. This is now- well
beyond the period. And the genesis of this is the presidential order. Even if it goes on for one year, it
takes away conditionality which cannot be taken away.
Dhavan (reads Article 3 & 4): It puts in a conditionality - a conditionality emanating from the State
itself. Can all this be wiped out?

Dhavan: Then to make one further proposition about president's rule- the wider proposition is this-
During the president's rule, Art 3&4 and Art 370 cannot be invoked. Why? Because they have
conditionalities.

Dhavan: The conditionality is specific to the legislature of the state- legislature becomes parliament
and the governor becomes president. The conditionalities that exist- neither parliament or president
can substitute them.

Justice Khanna: There's a difference between existence of power, use of power, and abuse of power.
Let's not confuse it.

Dhavan: There is a power, no doubt. But the exercise of that power is equally fundamental. We
cannot wish away the exercise as being purely nominal in nature.

Dhavan: When Maharashtra was broken, they said you have to refer, whether you like it or not.
Likewise, Punjab- you have to refer the bill to the legislature of the state. You can't self refer
it to parliament.

Dhavan: Constitution says that no bill can be introduced. It is a complete bar. We have to understand
the limitations of president's rule. And this is an important limitation. Process are conditions which
cannot be substituted by saying that governor will now become president.

Dhavan: Or that the legislature will now be parliament. This process of substitution is subversive to
the constitution.

CJI: Can parliament enact a law during the subsistence of a proclamation under Art 356 in exercise of
power under Art 246(2) or in respect of state list item?

Dhavan: They can pass a law, subject to all limitations. Except, when it passes a law under Art 3&4, it
must observe the conditionality.

CJI: To accept your argument we have to hold, ofc by the process of construction, that those powers
referrable to Art 3&4 which are powers of legislature of the state...

Dhavan: 356 is not plenary in nature. It is the bane of the Indian Constitution. It is introduced again
and again and again.

Dhavan: 356 has been used and abused to appoint but there must be some discipline to it. It is
certainly not a power to amend the constitution.

Dhavan: Transferring executive and parliamentary functions, that is the power to legislate alone, is
the core of 356 and 357. There are many provisions in the constitution where legislature exercises
other powers- of election, consultation etc.

Dhavan: So it has to be limited. Otherwise what happened in 5th August onwards- can happen to any
other state during president's rule.

Dhavan: It is limited to legislative powers. It certainly cannot amend the constitution. Or deprive the
constitution of its mandatory procedural requirements.
Dhavan: This is fundamental of how this process of dilution of 370 occured.

Dhavan: I will now again refer to the diversity of this constitution. Because your lordship is concerned
with how this diversity can be preserved.

Dhavan: Bodoland is mentioned in the Constitution. Nagaland has autonomous councils.

Dhavan (reads Art 2): This is important. It's parliament's power to admit to the Union new states.
This is very different from the assimilation of princes into the Constitution.

Dhavan (reads Art 35): In relation to affirmative action, power of legislature is taken away. To change
this would require an amendment of the constitution.

Dhavan then refers to Article 164.

Dhavan: These are safeguards for federal unity of India, as was 370. It is the part of the basic
structure of federalism in our constitution. These are limits the constitution has in
relation to federalism.

Dhavan (referring to Art 164): This requires to be changed through a constitutional amendment.
Can't be done under president's rule.

Dhavan: Now see Art 168 & 169- this relates to whether there should be two houses in the
parliament or not. Only bear in mind, J&K had a legislative council.

Dhavan: I am reading 169(1).

Dhavan: Now come to Art 239.

Dhavan: 239A deals with how UTs are to be created and the creation of local legislatures. This cannot
be done away with.

Dhavan: Compare this with what has happened in J&K. State has become a UT. Two UTs- one without
a legislature, one with. This was not within the remit of Art 3 & 4- where you lose your character of
state and become UTs.

Dhavan: And this is done not by reference to Art 239A or 239AA. You should have done what was
done with Delhi.

Dhavan refers to the two GNCTD v UOI judgements to elaborate upon his point pertaining to
"diversity" of the Constitution.

Dhavan: It undermines federalism and democracy itself.

Dhavan: Please let me take you to 243, particularly 243N and 243ZC

Dhavan: 243N says part of panchayats doesn't apply to certain areas. I'm just showing the diversity
that exists. Come to sub clause (2)(3)(a)- it shall not apply to Darjeeling.

Dhavan: Then it won't apply to Arunachal Pradesh. Once again, here is a non legislative function.

Dhavan: Here is the exercise of the most fundamental exercise of three tier federalism which is a part
of the constitution. Then 243ZC says the same. 243ZD is about municipalities. It applies to UTs which
has a legislative assembly. What happens to Ladakh?
Dhavan: Now come to Article 244. This is dealing with scheduled and tribal areas. None of this can be
wished away. It is so crucial for diversity of our constitution.

Dhavan: 244A relates to autonomous states. Our constitution doesn't shy away from creating
autonomous states.

Dhavan: Then I come to Schedule VI.

Dhavan: Autonomy of states is fundamental to our constitution.

Dhavan: Autonomy is not alien to our constitution. You can't just standardize provisions of the
constitution and say look we have autonomy here but we cannot give it to J&K because on 19th Dec,
we took away the provision.

Dhavan: It is very important to understand and not wish away the autonomy of Indian states.
Please now see 275.

Dhavan: Now see Article 330. It is a very important provision. To say that special provisions can't be
made in the Constitution is an anathema.

Dhavan: These special provisions relate to certain classes. Special provisions are a regular features of
our constitution. Without these, so much could not have been done for the SC/ST/OBCs.

Dhavan: See 338(7). This is what should be done with President's rule. Even the Governor's report
wasn't placed. This is what has to be written in 356. You put in all the information you have, you put
in governor's report, and give reasons.

Dhavan: Please also see Articles 330 and 343. 343 is to be read with Eight schedule. Kashmiri is one
of the languages recognised under right schedule. Please bear this in mind.

Dhavan: So in communications, in complaints etc, Kashmiri can be used. That has not been taken
away and cannot be taken away. Part of the spirit of a region is its language.

Dhavan: Chapter IV, Article 350 has special directives for a language. Who is going to make these
special directives? President? Parliament? What is the status of Kashmiri now? Has it disappeared
from the eight schedule?

Dhavan: 371(a) refers to Nagas customary law. And then 371 refers to hill areas of
Manipur- very relevant.

Dhavan refers to Article 371F: This was examined in Poudyal.

[He is referring to RC Poudyal & Anr. v UOI, 1993]

Dhavan: You take into account all antecedents and see the nature of the case- whether for
370 or otherwise.

Dhavan: Schedule V deals with administration of scheduled areas and scheduled tribes. There is a
tribals' advisory council for when the governor applies laws

Dhavan: Now I come to most important schedule on autonomy - Schedule VI

Dhavan: Schedule V deals with Assam, Meghalaya, Tripura, and Mizoram- excludes them. And this is
applied in Schedule VI.
Dhavan: Now we come to question of autonomy of North East. Without these autonomy, India would
have collapsed unless all this was given to the states in question. This quest for uniformity across the
board which CO 272 and 273 seem to countenance is not the heart of constitution

Dhavan: It is autonomy within federation, special provisions in relation to people. Take that away and
we don't need such a big constitution.

Dhavan: This is where the entire politics of North East arise. Gorkhas say that we want Gorkha land.
Someone says we want Bodoland. All this emanates from Schedule V, VI, and the
concept of autonomy.

Dhavan (referring to regional north east councils): What do these autonomous councils do? Each of
these is given a law making powers which ofcourse is with limits. Without this, we may
lose north east.

Dhavan: It is this democratization of power that has enabled us to make special concessions where
they are necessary.

Dhavan: Now there are two interesting provisions found in footnotes of Schedule VI. That is sub para
3(a). It wasn't without protest and accomodation. "Additional powers of North Cachar Hills council..."

Dhavan: Communication is given to the council under Art 371(3)(a)(b).

Dhavan: Your lordships are familiar with Bodoland agitation. Now see clause (3)(b).

Dhavan: The reason why I cited all of this is because of the diversity this constitution makes in
Federalism and democracy. A diversity that is to be treasured, not wished away in the name of
uniformity. There are no dead horses to be flogged.

Justice Kaul: You're right, it's possibly more diverse than the whole of Europe combined.

Dhavan: Europe, America, sub-saharan Africa, take parts of the south seas.

Dhavan: Diversity is necessitated because of the absence of the merger agreement. I've called these
asymmetrical provisions. These are in fact multi symmetrical provisions.

Dhavan: This makes our constitution unlike any other in the world. Simple examples of asymmetry
are Canada, you have French in one area and the English in other. Or Belgian, the three languages-
those are asymmetrical.

Dhavan: Indian constitution is multi symmetrical of which J&K is a part.

The bench rises for lunch. Court to resume at 2 pm.

Dhavan: Please see a passage of TMA Pai on the diversity aspect.

Dhavan (reading TMA Pai): "All the people of India are not alike, and that is why preferential
treatment to a special section of the society is not frowned upon..."

Dhavan: "The one billion population of India consists of six main ethnic groups and fifty-two major
tribes; six major religions and 6,400 castes and sub- castes; eighteen major languages and 1,600
minor languages and dialects."

Dhavan: "Each person, whatever his/her language, caste, religion has his/her individual identity,
which has to be preserved, so that when pieced together it goes to form a depiction with the
different geographical features of India."
Dhavan: "These small pieces of marble, in the form of human beings, which may individually be
dissimilar to each other, when placed together in a systematic manner, produce the
beautiful map of India."

Dhavan: "Each piece, like a citizen of India, plays an important part in making of the whole...even
when one small piece of marble is removed, the whole map of India would be scarred, and the
beauty would be lost."

This is a very evocative passage so I wanted to read it.

Dhavan: I am making a point on why merger agreement was important and why Art 370 substituted
a standstill and merger agreement. I'm going to read the Premnath Kaul judgement.

Dhavan: Even after the IoA, he had not given up his rights.

Dhavan: What 370 represents is two powerful democratic movements- in people of India, and in
people of Kashmir, demanding their Maharaja, which is what he did - he gave up Rajya sabha, but he
didn't agree to a constituent assembly which came later.

Dhavan: All the IoA did was put in the four conditions and fed externally. That's why I made the
distinction between external and internal sovereignty.

Dhavan: I will come to what Sardar Patel said. This is important to understand what 370 represented
and what IoA did.

Dhavan: For others, you gave autonomous regions, you bond them together, you expanded it. But
this- the J&K Constitution of 1957, we wished it away? It simply can't. J&K had a constitution.
Where is it now?

Dhavan: Now I'll come to the importance of the Delhi decisions. I'll do the second once first. "Held
that regard must be had to principles of asymmetrical federalism embodied in the Indian
constitution.

Dhavan: "The design of our constitution is such that it accomodates the interests of different regions
while providing a larger constitutional umbrella..."

Dhavan (reads from Navtej Singh Johar): "The ultimate goal of our magnificent constitution is to
make right the upheaval which existed in Indian society before the adoption of the Constitution..."

Dhavan: When this hearing began, it appeared to me that we were reading a Constitution as if it was
a statute. We went to this word and that word- that is not how a constitution is meant to be
read or transformed.

Dhavan (reads NCT v UOI): "If the moral values of the constitution are not upheld at every stage, the
text of the Constitution may not be enough to protect the democratic values."

Dhavan: This deliberative exercise has not taken place with changes of J&K constitution. Mr Sibal had
a number of questions asked in parliament last day- are you changing 370? The answer was no, no,
no. And suddenly this happened.