Article 370 Case : Live Updates From Supreme Court [Day 4]

Subramanium: Just as the Constituent Assembly debates of India are inspiring, the Constituent Assembly debates of J&K are also inspiring. It was really on basis of Rousseau's model of representative democracy that the Constituent Assembly was formed.

Subramanium: I will take you to some portions of the debates at Constituent Assembly of J&K. Then you will notice what their final resolution was. The text of that resolution is the answer to the case.

Subramanium: The controversy is based on one misunderstanding - there is a unilateral exercise of power possible by the president under Art 370. This is how we've looked at it. Now I'll show that it's exactly the converse.

Subramanium: That is the reason why draft article 306A spoke about the Constituent Assembly of J&K taking a decision.

Subramanium: What the Indian Constituent Assembly did is that just as they felt that a decision can only be taken by the people, they thought that it was appropriate and necessary that the will of people is ascertained.

Subramanium: They maintained the highest sense of democracy and respect.

Subramanium: J&K was not like any other state at the time of accession. I'll give you three reasons- J&K had its own constitution prior to accession; the accession was qualified because people were still in the process of making up their mind.

Subramanium: Dr Ambedkar introduced the Constitution. His introductory speech had two themes. He speaks about the Indian Constitution being federal. He also says that people who live in a state can be given special rights, privileges.

Subramanium: Our constitution recognises asymmetric federalism. The purpose of asymmetry is to take note of special conditions and special needs of people.

Subramanium: I will urge your lordships to apply the "degree test" or the "effect test" applied by Chief Justice Kapadia in a case called Glanrock. It is by applying that test we assess the extent of abrogation.

[He is referring to Glanrock Estate v State of TN, 2010]

Subramanium: I will submit that the basic structure which your lordships have to discern will be deduced both from the Indian and the J&K constitution.