SG Mehta: 367- I cannot modify under 370(3). That I have done only under 370(1)(d). And Damnoo approves it.
SG: My submission is that when the Constituent Assembly is dissolved without any recommendation, that power of the requirement goes because proviso becoming otiose cannot result into the main provision becoming inoperative. The president was left to his own choice.
CJI: Mr SG, can the abrogation stand independent of the modification made to Article 367?
SG: Even in absence of the proviso, explanation what it does is that it merely substitutes the term Constituent Assembly with Legislative Assembly.
SG Mehta: To ensure that this never happens again, 367 was used.
SG: Here, only in one provision, that is Art 370, which can amend any part of the Constitution - explanation 367 mechanism is used. This is a drastic nature of this provision. 370(1) permits two organs- President, State govt to change anything in Constitution.
SG: In this view, it may not be necessary to read Madhavrao Scindia judgement. In Madhavrao, it was done by a presidential order - one definition was deleted, the president never possessed this power.
SG: If any provision which keeps out of the total composition of our Constitution as an appendage, as a transitory provision, to be removed at an appropriate stage- if it is removed, it furthers basic structure & enhances equality and fraternity, which is bedrock of Constitution
SG: "One should not lose sight of the fact that neither 'cause of their antipathy towards Rulers nor due to any xenophobia, did the Indian Govt entertain the idea of the integration but because of the will of the people. It was the people who were instrumental in integration."
SG: "...This argument based on the ground of breaking of solemn pledges and breach of promise cannot stand much scrutiny. To say that without voluntary accession, India would be different from that Bharat that came into being prior to the accession is untenable..."
SG Mehta (reading from Raghunathrao judgement): "A serious argument has been advanced that the privy purse was a just quid pro quo to the Rulers of the Indian States for surrendering their sovereignty and rights over their territories..."