Shah: The structure of constitution was different before- there was a raja, praja etc. With democracy, it was not appropriate...It is the right of the state which is in question.
Shah: If we look at 370(a) it seems to subsume within itself the power that the Maharaja had. He had retained the entire residuary sovereignty with himself. Sovereignty is the power to make laws.
Shah takes the bench through the history of J&K's accession with India.
Shah: Only three states were left- Hyderabad, Junagadh, J&K. A referendum was held in Junagadh and they wanted to merge with India. Hyderabad was different too.
Shah: He enters into IoA and says that Union of India will have power over defence, communication, foreign affairs but he retained all other powers with himself.
Sr Adv Zaffar Shah: There are a few approaches to understand 370. One would be that when the Maharaja entered into IoA, why didn't he also enter into merger agreement? He didn't do that. Union of India was by itself one authority and Maharaja was another authority.
Subramanium: The purposes of 356 and 370 are not coincidental. They do not coincide. The exercise of power under 356 cannot clothe you with legal authority under 370.
Sr Adv Gopal Subramanium has concluded his arguments.
Subramanium: When we look at the exercise of power under 370, it must be informed with the idea that it shouldn't offend any basic principles of constitution. The two principles I invoke are federalism, with its subsets autonomy and consent; and supremacy of the Constitution.
Subramanium refers to the judgement in Damnoo.
Subramanium: This is not a transitory provision. 370 in its true essence is not treated as a transitory provision, it's meant to be treated as a substantive provision.