RESIDENT OF 590/17G, G/F, VILLAGE: CHHAWLA,

Transcription

1 1 IN THE HIGH COURT OF DELHI AT NEW DELHI, EXTRAORDINARY CIVIL JURISDICTION WP (C) NO. OF 2016 IN THE MATTER OF PUBLIC INTEREST LITIGATION: SURJEET SINGH S/O SHRI TARA CHAND RESIDENT OF 590/17G, G/F, VILLAGE: CHHAWLA, NAJAFGARH, NEW DELHI..PETITIONER Versus 1. UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI 2. STATE OF J & K, THROUGH ITS CHIEF SECRETARY, GOVERNMENT OF J & K, SHRINAGAR, JAMMU AND KASHMIR...RESPONDENTS AND IN THE MATTER OF: A PETITION UNDER AR TICLES 226 OF THE CONSTITUTION OF INDIA FOR THE ISSUANCE OF AN APPROPRIATE WRIT IN THE NATURE OF A WRIT OF CERTIORARI QUASHING THE CONSTITUTION

2 2 (APPLICATION TO JAMMU & KASHMIR) ORDER, 1954 SO FAR IT ADDS A PROVISO TO ARTICLE 368 OF THE CONSTITUTION OF INDIA AND AN ORDER OR DIRECTION OR WRIT IN THE NATURE OF WRIT OF MANDAMUS COMMANDING THE RESPONDENTS NOT TO APPLY THE IMPUGNED CONSTITUTION ORDER (APPLICATION TO JAMMU & KASHMIR) ORDER, 1954 SO FAR BY MEANS OF IT, A PROVISO HAS BEEN ADDED TO ARTICLE 368 OF THE CONSTITUTION OF INDIA To, The Hon ble Chief Justice and His Hon ble Companion Judges of Delhi High Court. The Humble Petition of the Petitioner above-named MOST RESPECFULLY SHOWETH: 1. That the writ petitioner has no personal interest in the litigation and that the Petition is not guided by self-gain or for gain of any other person/ institution/body and that there is no motive other than of public interest in filing the writ petition. 2. That the facts of the writ petition are based upon papers and documents which are already public

3 3 documents and available in Law Books on Article 370 and the Petitioner has verified from the various Books of constitutional law. 3. That by means of The Constitution (Application to Jammu and Kashmir) Order, 1954 (Here-in-after referred to, as the Constitution Order 1954 or CO 1954, as the case may) issued by the President under clause (1) of Article 370 of the Constitution of India, the President has added a Proviso to Article 368 of the Constitution of India, in flagrant violation and negation of the Constituent Powers of the Parliament to make amendment in the Constitution and the Petitioner is filing the present Writ Petition in order to make efforts to restore constituent powers of the Parliament to apply the constitutional amendments in the State of Jammu and Kashmir, without adopting any process as provided in the Proviso under challenge. It is to state that the Constitution of India has been amended 100 times till 2016; but with respect to Jammu and Kashmir, the last Constitutional Order i.e. The Constitutional (Application to Jammu and Kashmir) Amendment

4 4 Order 1989 applying Constitution (Sixty First) Amendment Act 1988 was issued on and thereafter no constitutional amendment has been applied by the President. It is humbly further submitted that the matter relates to the pace of the development of the State, within the constitutional framework of the Indian Constitution and the impugned Proviso added to Article 368, operates as the major stumbling block in political, social and economic development of the State. The citizens residing in Jammu and Kashmir have been irrationally and arbitrarily denied the benefits and fruits of Constitution Amendments done by the Parliament. Thus the present petition as a bonafide effort of the humble petitioner, a citizen of the country to invoke the benevolent jurisdiction of the Hon ble High Court under Article 226 of the Constitution of India, to seek restoration of the Constituent Powers of the parliament in the case of Jammu and Kashmir. The impugned Proviso added by the Constitution Order 1954 to the Article 368 is an unconstitutional encroachment on the constituent powers of the Parliament to amend the Constitution and apply the same to the State of Jammu and Kashmir as well, thus the Citizens of

5 5 India including the Petitioner are interested in restoration of constituent powers of the Parliament. 4. That the Union of India and the State of J & K are likely to be effected by the relief / orders sought in the Petition and to the knowledge of the petitioner, no other personal /bodies/institutions are likely to be affected by the orders sought in the writ petition. 5. That the Petitioner is a citizen of India and at present resides in the state of Delhi. The Petitioner is an advocate enrolled with the Bar Council of Delhi and is always interested in the proper functioning and application of the Constitution of India. The Petitioner is a highly qualified person and also has the educational qualifications viz. B. Pharmacy from IT-BHU (Now IIT-BHU Varanasi) , M.Tech (IT) Bioinformatics from IIIT Allahabad , M.A. in Mass Communication and Journalism from CDLU Sirsa, M.A. in English Literature from CDLU Sirsa, LL.B. from CDLU Sirsa, UGC NET Exam qualified in English Literature, Mass Communication and Journalism, GATE Qualified in Pharmaceutical

6 6 Science. A copy of the Petitioner s Bar Council Identity Card is annexed hereto as his Identity Proof and is marked as Annexure P-1. (Page No. ). The petitioner has the means to pay the costs, if any, imposed by the Court and the Petitioner undertakes to pay the cost if any, imposed by the Court in the writ petition. 6. That the Petitioner has not preferred to the respondents any representation because the remedies lies in the Court of law only. 7. That the present Petition is the first Writ Petition / Public Interest Litigation Petition of the Petitioner and before the present Petition, the petitioner has not filed and other Writ Petition /Public Interest Litigation Petition in any court of law. 8. That the present Writ Petition is directed against the Constitution (Application to Jammu and Kashmir) Order, 1954 ( the Constitution Order 1954 ) issued by the President in exercise of powers under Article 370 of the Constitution of India, whereby the President while applying the Article 368 in the State of Jammu and Kashmir has added

7 7 a Proviso to Article 368 of the Constitution of India, to the effect that no amendment in the provisions of Constitution of India shall have effect in relation to the State of Jammu and Kashmir unless the said amendment is applied by order of the President under clause (1) of article 370." A typed copy of the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President on as amended from time to time is annexed and marked herewith as Annexure P-2 [Page to ]. 9. This is the first Writ Petition filed by the Petitioner in this High Court or any other High Court on the cause of action and earlier to the present Writ Petition, the Petitioner has not filed any other Writ Petition or application or Petition in this High Court or any other High Court or the Supreme Court. 10. That the issue which is also required to be examined in the context of exercise of the powers of the President under Article 370 to issue a Constitution Order to seek to establish in the State of Jammu and Kashmir, a form or system of Government or political and governmental

8 8 institutions alien to and fundamentally different from those the Constitution of India envisages, and such powers are not vested in the President under Article 370 of the Constitution of India. At the threshold, it would be appropriate to trace some salient features of the history of evolution of the State of Jammu and Kashmir as an integral part of India and the facts which necessitated the filing of the present Petition. 11. That the State of Jammu and Kashmir was a part of the British India and the territory of the State had been transferred to the Ruler by the British Government in pursuance of a Treaty between the British Government and Maharaja Gulab Singh, executed on The successor of Maharaja Gulab Singh continued to rule the State under suzerainty of His Majesty in Great Britain till the independence of our country. A Copy of the Treaty between the British Government and Maharaja Gulab Singh, executed on is annexed and marked herewith as Annexure P-3 [Page to ]. The successor of Maharaja Gulab Singh continued to rule the State

9 9 under suzerainty of His Majesty in Great Britain till the independence of the country. The Princely States under suzerainty are termed as Indian States in the relevant statutes. 12. In the State of Jammu and Kashmir, on , Maharaja Bahadur enacted and issued a Constitutional Act namely Regulation No. 1 of the Samwat 1991 consisting of 46 sections. In these Regulations, the constitution of a State Assembly namely Praja Sabha was provided for the association of his subjects in the matter of legislation and administration of the State. However, under Section 3, Maharaja reserved in himself all his pre-existing legislative, executive and judicial powers. Section 30 specifically provided that no measures should be deemed to have been passed by the Praja Sabha, the Legislative Assembly, until and unless the Ruler has signified his assent thereto. Section 4 and 5 made his Highness the source of all authorities. The elections to the First Praja Sabha were held in That on , the British Parliament enacted and enforced Government of India Act

10 (Here-in-after referred to as the Act 1935 ). The Act 1935 envisaged a federation of all India consisting of British Provinces and the Indian States willing to join the federation. It is to stated that the Government of India Act 195 was a nonstarter so far the Indian States are concerned and no Indian State executed any fresh Instrument of Accession. Therefore, the State of Jammu and Kashmir continued to be governed as a State under paramountcy and suzerainty of His Highness till the Indian Independence Act 1947 came into existence That on , Maharaja promulgated Jammu and Kashmir Constitution Act 1939 (Here-in-after referred to, as the Act 1939 which consists of 78 sections and 5 schedules. Under Section 4 of the Act 1939, the territories for the time being vested in His Highness are governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of such territories are exercisable by His Highness, except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by His Highness.

11 11 Under Section 5 of the Act 1939, Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and have always been inherent and in possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority. These provisions clearly demonstrate that the powers of the different authorities constituted under the Act 1939 were subject to and subordinate to the legislative, executive and judicial powers of the Ruler. However, it is relevant to point out that Ruler being under suzerainty and paramoutcy of His Majesty was not sovereign at all. Under Section 13 of the Act 1939, the legislature of the State shall consists of His Highness and a chamber to be known as Praja Sabha. It is relevant to point out that in this Act 1939 also, a State Legislative Assembly was created, the same was constituted to be known as Praja Sabha and such Praja Sabha continued to be functional till the year However, meanwhile,

12 12 a Political party namely National Conference in its New Kashmir Menifesto released on demanded constitutional changes seeking the Position of the Ruler to be reduced to that of the constitutional head and further demanded for creation of highest legislature of the J & K State namely National Assembly to be an elected body. 15. That the Call Quit India Movement in July 1942, demanding immediate end to the British Rule in India initiated the mass struggle on non-violent lines on the widest possible scale in the country and the British Government resorted to ruthless repressive measures. Ultimately, the British Government on announced their first proposals for breaking the political deadlock in India. The Wavell Plan and thereafter Cabinet Mission Plan became the subject matter of discussion and when Cabinet Mission Plan also failed to yield any result, Mountbatten took over as Viceroy from Lord Wavell. The new Viceroy prepared the inevitable plan of division of the Country into two dominions of India and Pakistan. The Constituent Assembly of India was constituted and convened its first meeting on But

13 13 it is to be clarified that no representative from Indian States had participated in the first meeting of said Constituent Assembly. In its first meeting, the said Constituent Assembly asserted Sovereignty vested in People and asserted the constituent powers as representative of the sovereign people to frame the Constitution of India. 16. That on , The Indian Independence Act 1947 (Here-in-after referred to, as IIA 1947 ) was enacted by the British Parliament. The date was decided as the appointed date to declare Independence of India. On passing of the Indian Independence Act 1947, the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all obligations of His Majesty existing on that date towards Indian States or the Rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty on that date in or in relation to Indian states by treaty, grant, usage, sufferance or otherwise. On enactment of Indian Independence Act 1947, India under the British Crown, obtained independence

14 14 and in that process British Parliament constituted certain territories-into another dominion i.e. Pakistan. Therefore, as regards India, in the United Nations, India did not have to be admitted as a new Nation. India went in UN as a successor State to the India that signed the Covenant of the League of Nations, that signed the Treaty of Versailles, and which also went to San Francisco to help in establishing the UN. So India became the successor State by the Indian Independence Act of The Government of India Act 1935 which was passed by the British Parliament in 1935 became the Constitution Act of India. It is humbly submitted that contrary to general belief, on lapse of paramountcy, the Indian States did not become independent nations. 17. That at this point, it would be appropriate to draw kind attention of the Hon ble High Court to the statutory provisions of IIA Section 2 of the IIA 1947 reads as thus; S.2 : (1) Subject to the provisions of subsections (3) and (4) of this section, the territories of India shall be the territories under the sovereignty of His

15 15 Majesty which, immediately before the appointed day, were included in British India except the territories which, under subsection (2) of this section, are to be the territories of Pakistan. (2) Subject to the provisions of subsections (3) and (4) of this section, the territories of Pakistan shall be- (a) the territories which, on the appointed day, are included in the Provinces of East Bengal and West Punjab, as constituted under the two following sections; (b) the territories which, at the date of the passing of this Act, are included in the Province of Sind and the Chief Commissioner's Province of British Baluchistan ; and (c) if, whether before or after the passing of this Act but before the appointed day, the Governor-General declares that the majority of the valid votes cast in the referendum which, at the date of the passing of this Act, is being or has recently been held in that behalf under his authority in the North West

16 16 Frontier Province are in favour of representatives of that Province taking part in the Constituent Assembly of Pakistan, the territories which, at the date of the passing of this Act, are included in that Province. (3) Nothing in this section shall prevent any area being at any time included in or excluded from either of the new Dominions, so, however, that- (a) no area not forming part of the territories specified in subsection (1) or, as the case may be, subsection (2), of this section shall be included in either Dominion without the consent of that Dominion; and (b) no area which forms part of the territories specified in the said subsection (1) or, as the case may be, the said sub-section (2), or which has after the appointed day been included in either Dominion, shall be excluded from that Dominion without the consent of that Dominion. (4) Without prejudice to the generality of the provisions of subsection (3) of this section, nothing

17 17 in this section shall be construed as preventing the accession of Indian States to either of the new Dominions. Section 2(1) read with Section 1 explains that On enactment of Indian Independence Act 1947, India under the British Crown, obtained independence and in that process British Parliament constituted certain territoriesinto another dominion i.e. Pakistan. The words which has after the appointed day been included in either Dominion in Clause (b) of Sub-Section 3 of Section 2 specifically states that the area can be included after the appointed day as well, in either dominion and such area so included shall not be excluded from that dominion without the consent of that dominion. Thus, the course of coming out of Dominion of India being not available to States in view of the clear mandate under clause (a) and (b) of sub-section 3 of Section 2 of the Independence Act 1947, the issue which remains to be settled is in regard to the distribution of legislative powers within the constitutional set-up of a federation. Thus, the accession of Princely State after the appointed day is final and irrevocable.

18 That at this stage, it would be appropriate to examine the issues of sovereignty of India State in the period from to the date the State of J & K signed the Instrument of accession. and their status on the enactment of IIA 1947 by reference to Section 7 of the IIA Section 7 of IIA 1947, reads as thus; 7.-(1) As from the appointed day- (a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India ; (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise, and

19 19 (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of this subsection, effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as is therein referred to which relate to customs, transit and communications, -posts and telegraphs, or other like matters, until the provisions in question are denounced by the Ruler of the Indian State or person having authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the other hand, or are superseded by subsequent agreements. (2) The assent of the Parliament of the United Kingdom is hereby given to the omission from the

20 20 Royal Style and Titles of the words "India Imperator" and the words "Emperor of India " and to the issue by His Majesty for that purpose of His Royal Proclamation under the Great Seal of the Realm. Section 7 of the IIA 1947 deals with the lapse of the suzerainty and proviso to clause (b) of Sub-section (1) refers to the continuation of existing arrangements between the Indian States and Dominion of India. Here, it is humbly submitted that Indian Independence Act 1947 did not restore the sovereignty of the Rulers over their Princely States called as Indian States and the Ruler of J & K was not an absolute monarch in the period from to the when the Instrument of Accession was signed on Here, the functional aspect of relationship between the Crown and the State of J & K being equally important is to be analysed. As a matter of fact, the Standstill Agreement which was to be signed between the Government of India and State of Jammu and Kashmir clearly stipulated the existing arrangements to be continued till the Ruler decided to sign the Instrument of Accession on and the said existing arrangements were included in the Schedule to the Standstill Agreement. The "existing arrangements" comprised the use of Indian

21 21 forces if there was internal rebellion in one of the States. The schedule of Indian standstill Agreement included air communications, arms and equipment, control of commodities, currency and coinage, customs, Indian States forces, external affairs, extradition, import and export control, irrigation and electric power, motor vehicles, national highways, opium, posts and telegraphs and telephones, railways, salt, central exercises, relief from double income tax and other arrangements relating to taxation, etc. All these subjects are contained in the schedule of the standstill agreement. Therefore, if there had been no interruption by invasion, it is normal to conclude that a standstill agreement would have been concluded and that that standstill agreement would have included external affairs, control of State forces and of other matters which spring from the sovereignty of a country. In this respect, the Stand of Union of India is reflected in the Speech of MR. V. K. KRISHNA MENON, India s Representative on Jammu and Kashmir at the UN Security Council s 762 meeting on 23 rd of January A Copy of the Speech of MR. V. K. KRISHNA MENON, India s Representative on Jammu and Kashmir at the UN Security Council s 762 meeting on 23 rd of January 1957 is being filed as an annexure in Volume 2 of the present petition. A Copy of the Performa Standstill Agreement

22 22 signed between every Indian State and the Government of India is annexed and marked herewith as Annexure P-4 (Page No. to ) 19. That now, it would now be appropriate to refer to Sections 6, 8 and 19(3)(a) of IIA 1947 in order to examine the status of the Constituent Assemblies to be constituted for India. Section 6 and Section 8 reads as thus; S.6.-(1) The Legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation. (2) No law and no provision of any law made by the Legislature of either of the new Dominions shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act,

23 23 order, rule or regulation in so far as it is part of the law of the Dominion. (3) The Governor-General of each of the new Dominions shall have full power to assent in His Majesty's name to any law of the Legislature of that Dominion and so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure thereon or the suspension of the operation of laws until the signification of His Majesty's pleasure thereon shall not, apply to laws of the Legislature of either of the new Dominions. (4) No Act of Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to either of the new Dominions as part of the law of that Dominion unless it is extended thereto by a law of the Legislature of the Dominion. (5) No Order in Council made on or after the appointed day under any Act passed before the appointed day, and no order, rule or other instrument made on or after the appointed day

24 24 under any such Act by any United Kingdom Minister or other authority, shall extend, or be deemed to extend, to either of the new Dominions as part of the law of that Dominion. (6) The power referred to in subsection (i) of this section extends to the making of laws limiting for the future the powers of the Legislature of the Dominion. Temporary provisions as to government of each of the new dominions S.8:-(1) In the case of each of the new Dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the Legislature of the Dominion shall be construed accordingly. (2) Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (i) of

25 25 this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there-under, shall, so far as applicable, and subject to any express provisions of this Act, and with such, omissions, additions, adaptations and-. modifications as may be specified in orders of the Governor- General under the next succeeding section, have effect accordingly: Provided that- (a) the said provisions shall apply separately in relation to each of the new Dominions and nothing in this subsection shall be construed as continuing on or after the appointed day any Central Government or Legislature common to both the new Dominions ; (b) nothing in this subsection shall be construed as continuing in force on or after the appointed day any form of control by His Majesty's Government in

26 26 the United Kingdom over the affairs of the new Dominions or of any Province or other part thereof ; (c) so much of the said provisions as requires the Governor- General or any Governor to act in his discretion or exercise his individual judgment as respects any matter shall cease to have effect as from the appointed day ; (d) as from the appointed day, no Provincial Bill shall be reserved under the Government of India Act, 1935, for the signification of His Majesty's pleasure, and no Provincial Act shall be disallowed by His Majesty there-under ; and (e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in relation to each Dominion, shall, in the first instance, be exercisable by - the Constituent Assembly of the Dominion in addition to the powers exercisable by that Assembly under subsection (1) of this section. (3) Any provision of the Government of India Act, 1935, which, as applied to either of the new Dominions by subsection (2) of this section and the

27 27 orders therein referred to, operates to limit the power of the legislature of that Dominion shall, unless and until other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion in accordance with the provisions of subsection (1) of this section, have the like effect as a law of the Legislature; of the Dominion limiting for the future the powers of that Legislature. S.19(3): (3) References in this Act to the Constituent Assembly of a Dominion shall be construed as references- (a) in relation to India, to the Constituent Assembly, the first sitting whereof was held on the ninth day of December, nineteen hundred and forty-six, modified- (i) by the exclusion of the members representing Bengal, the Punjab, Sind and British Baluchistan ; and

28 28 (ii) should it appear that the North West Frontier Province will form part of Pakistan, by the exclusion of the members representing that Province ; and (iii) by the inclusion of members representing West Bengal and East Punjab ; and (iv) should it appear that, on the appointed day, a part of the Province of Assam is to form part of the new Province of East Bengal, by the exclusion of the members theretofore representing the Province of Assam and the inclusion of members chosen to represent the remainder of that Province; (b) in relation to Pakistan, to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General as the Constituent Assembly for Pakistan: Provided that nothing in this subsection shall be construed as affecting the extent to which representatives of the Indian States take part in either of the said Assemblies, or as preventing the filling of casual vacancies in the said Assemblies., or as preventing the participation in either of the said

29 29 Assemblies, in accordance with such arrangements as may be made in that behalf, of representatives of the tribal areas on the borders of the Dominion for which that Assembly sits, and the powers of the said Assemblies shall extend and be deemed always to have extended to the making of provision for the matters specified in this proviso. 20. That proviso to sub-section (3) of Section 19 preserved the right of the Indian States to participate in the proceedings of the Constituent Assembly. Section 6 read with Section 8 provide only one Legislature for India, which was vested with all the constituent and legislative powers to frame the Constitution of India and the same Constituent Assembly which was convened on , was vested with the constituent powers as sovereign to frame the Constitution of India. Here, it is relevant to state that although IIA 1947 specifically vested for the first time the constituent powers to frame constitution of Dominion of India; but long back prior to this, on , the said Constituent Assembly asserted Sovereignty vested in People and asserted to be v e s t e d w i t h t h e c o n s t i t u e n t p o w e r s a s

30 30 representative of the sovereign people to frame the Constitution of India. Further, except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of section 6, the new Dominion of India, its all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there-under, shall, so far as applicable, and subject to any express provisions of this Act, and with such, omissions, additions, adaptations and-. modifications as may be specified in orders of the Governor- General under the next succeeding section, have effect accordingly: Thus, the Government of India Act, 1935 became the Constitution Act to begin with the exercise of framing the Constitution of India. 21. That on , the tribal raiders invaded the territory of the State; and this invasion presented a problem of unprecedented gravity before the Maharaja. With the progress of the invading raiders the safety of the state was itself in grave jeopardy

31 31 and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself and State of Jammu and Kashmir was apprehended to be annexed by Pakistan. In those compelling circumstances, on , the Maharaja signed the Instrument of Accession with India. By the First Clause of the Instrument, the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes only of the Dominion of India. By clause 3, the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Dominion Legislature may make laws for this State. Clause 5 provides that the Instrument shall not be varied by any amendment of the Government of India Act, 1935, or of the Indian Independence Act, 1947, unless such amendment is accepted by Maharaja by an Instrument supplementary to the original

32 32 Instrument of Accession. Clause 8 provides that nothing in the Instrument affects the continuance of the Maharaja's sovereignty in and over his state, or save as provided by or under the Instrument the exercise of any powers, authority and rights and then enjoyed by him as Ruler of the state, or the validity of any law then in force in the State. The Schedule attached to the Instrument refers to four topics, defence, external affairs, communications and ancillary, and under these topics twenty matters have been serially enumerated as those in respect of which the Dominion Legislature had the power to make laws for the State. Thus, by the Instrument of Accession, the Maharaja took the very important step of recognizing the fact that his State was a part of the Dominion of India. Further, by virtue of Section 8 of the IIA 1947, the Constituent Assembly of the Dominion India was to frame its Constitution and till such constitution of India is framed, by virtue of Section 8(2) of the IIA 1947, the GOI Act 1935 was in-force to regulate the constitutional relationship of the Princely State with the dominion of India. With the Signing of the Instrument of Accession by the Ruler of Jammu and Kashmir and acceptance thereof, the State

33 33 became the part of Indian. A Copy of the Instrument of Accession dated is annexed an marked herewith as Annexure P-5 (PAGE No to ). Here, it is relevant to submit that clause 8 of the Instrument of Accession regarding the sovereignty of Ruler does not confer any attribute of sovereignty with the Ruler. 22. That so far the contents of the Instrument of Accession signed by the Ruler of Jammu and Kashmir is concerned, similar performa of Instrument of Accession had also been signed by the rulers of other States (Indian States) within India. 23. That the consequence of signing of such Instrument of Accession under clause (4) of Section 2 are specified under clause (a) and (b) of sub- Section 3 and (4) of Section 2 of the Independence Act Further, by virtue of Section 8 of the IIA 1947, the Constituent Assembly of the Dominion of India was to frame its Constitution and till such constitution of India is framed, by virtue of Section 8(2) of the IIA 1947, the GOI Act 1935 was in-force to regulate the constitutional relationship of the

34 34 Indian States (Princely States) with the Dominion of India. 24. That on , the Ruler issued a Proclamation whereby the Ruler appointed a Prime Minister and His Council of Ministers and further directed the Council of Ministers, on resumption of normal conditions in the State, to convene a National Assembly based upon adult suffrage to frame a Constitution for the State. It is humbly submitted that by virtue of Section 4 and 5 of the Act 1939, the Proclamation dated of the Ruler was to operate in addition to the provision of Praja Sabha as provided in Section 13 of the Act A True Copy of the Proclamation dated is annexed and marked herewith as Annexure P-6 [Page to Page ] 25. That ultimately, in June 1949, the Ruler in consultation and advice of his Council of Ministers, decided to send the representatives of the State to participate in the Constituent Assembly of India and thus, four representatives representing the State of Jammu & Kashmir also became members and participated in the making of the Indian

35 35 Constitution. This fact is being placed on record only in order to demonstrate that State of Jammu and Kashmir like any other Indian State was party to the deliberations to frame the Constitution of India. Here, it is relevant to further point out that to begin with, the States had been allowed to frame their own provincial constitutions and the federal constitution was decided to be framed by the Constituent Assembly; but in the course of time, the idea of every state to frame its own provincial constitution was dropped and it was decided that the Constitution of India should also contain within itself the Constitution of the States. It is also relevant to state that the National Assembly to be convened in pursuance of the Proclamation dated vide of the Ruler of J & K was a non starter, therefore, the acceptance of the Constitution of India was taken from the Ruler on the aid and advice of his Council of Ministers. In this respect, the historical facts as recorded by Hon ble Justice Subba Rao in the Judgment of His Holiness Kesavananada Bharti Case (1973) 4 SCC 225, needs to be placed on records as below;

36 36 BOTH sides relied on the speeches made in the Constituent Assembly. It is, however, a sound rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any provisions of the statute. The same rule has been applied to the provisions of this Constitution by this court in State of Travancore- Cochin and Others v. Bombay Co. Ltd. [1952] S.C.R. 1112, Shastri, C. J., speaking for the court observed : "It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates, on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-see Administrator-General of Bengal Vs. Prem Nath Mallick [1895] 22 I.A The reason behind the rule was explained by one of us in Gopalan's case thus:

37 37 "A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord," or, as is it more tersely put in an American case: "THOSE who did not speak may not have agreed with those who-did; and those who spoke might differ from each other-united States v. Trans- Missouri Freight Association (1897) 169 U.S. 290 at p. 318(sic)." "THIS rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed. p. 122."

38 38 However, the historical perspective of a particular article(s) may be appreciated by reference to the relevant part of the debates, in order to ascertain the purpose of any Article and in this respect, the observation of Sikri C.J. in the Kesavananda Bharti Case (Supra), are to be quoted as below; There is an additional reason for not referring to debates for the purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on 12/10/1949, (C. A. D., Vol. X, pp ) : "Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the, Constitution of India emerges in its final form. We have, therefore, no option but to make the Constitution operative in these States on the basis of its

39 39 acceptance by the Rulers or the Rajpramukh, as the case may be, who will no doubt consult his council of Ministers." In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain section S. of the people. 26. That on November 25, 1949, Yuvaraj Karan Singh, the erstwhile Ruler issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, in so far as it is applicable

40 40 to the State of Jammu and Kashmir, govern the constitutional relationship between the State and the contemplated Union of India and shall be enforced in the State by him, his heirs and successors in accordance with the tenor of its provisions. He also declared that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State. A Copy of the Proclamation dated issued by the erstwhile Ruler is annexed and marked herewith as Annexure P-7 [Page to Page ] The last paragraph of the Proclamation reads as under; The provisions of the said Constitution shall, as from the date of its commencement, s u p e r s e d e a n d a b r o g a t e a l l o t h e r constitutional provisions inconsistent therewith which are at present in force in this State. 27. That the Proclamation dated is of great significance in the legal history of evolution of the State of Jammu and Kashmir as integral part of

41 41 India. The words the provisions of the said Constitution are not to be misinterpreted as the words said provisions of the Constitution and the Ruler having accepted the provisions of Constitution of India annulled the instruments, proclamations, rules which were contrary to the tenets of the Constitution of India. It is stated that the Ruler had before him the Constitution of India as enacted and was fully competent to accept the Constitution of India as a standard parameters to judge his own legal and constitutional instruments in order to determine repugnancy and declare the same to be void. 28. That in the Case of Thaivalappil Kunjuvara Varied Versus State of Travancore Cochin AIR 1956 SC 142, the Constitutional Bench of the Apex Court was dealing with the effect of the Proclamation dated issued by the Rajpramukh of Travancore and the Apex Court while interpreting a clause in the Proclamation dated , exactly identical to the last clause in the Proclamation dated by the Rule of JK, quoting the Proclamation dated by the Rajpramukh of Travancore, observed as below;

42 42 In pursuance of Article X (4) the Legislative Assembly of the State of Travancore. Cochin resolved that the Constitution framed by the Constituent Assembly be adopted by the State. In consequence thereof the Raj Pramukh of Travancore-Cochin issued a proclamation dated 24th November, 1949, which runs as follows : "Whereas with an inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India will stand repealed.; And whereas, in the best interests of the United State of Travancore and Cochin, which is closely linked with the rest of India by Community of interest in the economic, political and other fields, it is desirable that the constitutional relationship established between this State and the Dominion of India, should not only be continued as between this State and the

43 43 contemplated Union of India further strengthened, and the Constitution of India as drafted by the Constituent Assembly of India, which includes duly appointed representatives of this State, provides a suitable basis for doing so; And whereas by virtue of the power vesting in it under the Government establishing this State, the Legislative Assembly of the State has resolved that the Constitution framed by the Constituent Assembly of India be adopted by this State; I now hereby declare and direct- That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions: That the provisions of the said Constitution shall as from the date of its commencement, supersede and abrogate all other constitutional provisions

44 44 inconsistent therewith which are at present in force in this State." For our present purposes, the last paragraph in this Proclamation is important. On the coming into force of the Constitution of India on the 26th January, 1950, the State of Travancore-Cochin became a part of the Union of India and was one of the Part B States as provided under Article 1 clause (2) taken with Part B of the First Schedule. The Constitution specifically provided for the prerogative of mercy in respect of sentences of death in Articles 72, 161 and 238. Article 72 provides for the power of the President, Article 161 for the power of the Governor in a Part A State, and Article 238(1) taken with Article 161 for the power of the Raj Pramukh of a Part B State. In the light of these provisions the continuance of the prerogative of the Maharaja of Cochin relating to the execution of the death sentences with reference to the ex-state of Cochin would be inconsistent with the new Constitution.

45 45 Such power, therefore, must be taken to have been superseded and abrogated as stated in the last para of the Proclamation above mentioned. It would follow that Article XXI of the Covenant of May, 1949, no longer survives. 29. That it is humbly submitted that with the adoption of the Constitution of India, whatever the vestiges of sovereignty had remained in the Ruler in terms of the Instrument of Accession dated , the sovereignty over the state of Jammu and Kashmir stood surrendered to and merged in the sovereignty of We, the People of the India. Here, it would be relevant to draw kind attention of the Hon ble Supreme Court in the case of Agricultural Produce Market Committee Versus Shri Ashok Harikuni & Anr. Etc 2000(8) SCC 61 in order to demonstrate that with the transfer of subject matters under Instrument of Accession dated , to the dominion of India, the Ruler ceased to retain any sovereignty. In the case of Agricultural Produce Market Committee Versus Shri Ashok Harikuni & Anr. Etc 2000(8) SCC 61, the Hon ble Supreme Court observed

46 46 In fact, Post Constitution, during fifties and sixties, the concept of sovereignty could hardly be defined with precision. Sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of sovereignty but they all cannot be construed as primary inalienable functions. The word "sovereign" changes its complexion with the type of sovereignty a country is structured also with the change of political structure in view of changing socio-cultural heritage of any country. So defining what is sovereign, the Courts not only of this country but other countries as well have been battling to comprehend it since 19th century. In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be "Sovereign" is defence of the country, raising armed forces, making peace or war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary civil courts. The other functions of the State including welfare activity of State could not be construed as "sovereign" exercise of power. Hence, every

47 47 governmental function need not be "sovereign". State activities are multifarious. From the primal sovereign power, which exclusively inalienably could be exercised by the Sovereign alone, which is not subject to challenge in any civil court to all the welfare activities, which would be undertaken by any private person. The Encyclopedia of the A m e r i c a n C o n s t i t u t i o n w i t h r e f e r e n c e t o "sovereignty" attempts to define sovereignty. It records : "Within the American regime the ultimate power and authority to alter or a abolish the constitutions of government of state and Union resides only and inalienably with the people. If it be necessary or useful to use the term "sovereignty" in the sense of ultimate political power, then there is no sovereign in America but the people. 20.That the Constitution of India came into force w.e.f and Article 1 and 370 were enforced by the Constituent Assembly.