Some provisions in the Constitution like Article 370 are bound to go...."Don't hang on it", says counsel Rakesh Dwivedi.
Stating that Emotion and Sentiment are important, Dwivedi, who appeared for an intervenor in support of the abrogation of Article 370, said: "my learned friend (one petitioner counsel) said, we have sentiment. Yes, we understand that.
If I live for too long with a particular provision, there will be sentiment. We appreciate that, we honour that, we respect that!"
We have emotions, we have sentiments, but time comes when we have to bury it, we have to cremate".
Dwivedi also told the Constitution Bench of the Supreme Court that this Adjudication is "not completely disregarding and disjointing the process" of Constitution making.
He argued eloquently, "all the provisions were temporary...somewhere time was fixed, somewhere time was not fixed but all intended to lapse....There are other provisions also like 306...they are meant to go. Don't hang on it".
He said, "I can understand people with good intention they respect that Emotion; but there may be most of other people who may take advantage of it. And in Kashmir they have taken advantage... There have been time and again talk about Independence, plebiscite...".
Dwivedi maintained that -- "When Article 370 was being tabled (in Constituent Assembly) there was hardly any discussion because the government said do not debate too much because advantage will be taken by the warring state across the border (reference to Pakistan)".
Dwivedi pointed out that in 1952 N C Chatterjee (lawmaker) had raised the matter that during the Constitution assembly debate, detailed discussions were not allowed. He argued that "divergent and clashing interests" of several popular leaders of the time were also at play.
"....Sheikh Abdullah was a great personality...Nehru ji was a great leader, Sardar Patel was a great leader ,,,,But what of that Churchill was a very great leader".
"They were all great leaders but they grappled with the situation in the interest of the nation".
He also made a submission before the Bench when Article 370 was being brought in or enforced, circumstances were different.
"One important circumstance ...all said war is going on (ref to first India-Pak war in 1946-47) between India and Pakistan", he said adding, "what was that war me Lord; ....we don't want to speak the truth......who was the commander of the army...all the three generals (chiefs of forces) were British, all the three generals of Pakistan was British".
"What was this war, me Lord?"
"...Churchill had designed itself that India is to be partitioned....geo politics. This war was a British war; they created it from both sides".
"Raiders came from where North West Frontier Province..... Raiders were trained, they were given arms of Army (Pakistani)....The Pakistan army had just been split from India. What is this PoK today....two/third of PoK is Gilgit Pakistan".
"Raiders by themselves could not come to Srinagar !!"
Mountbatten was the Governor General, he pointed and stressed, "maybe our leaders have their reasons".
In this context, counsel Dwivedi even said ".... = Jinnah said I will not accept any British Governor General...but party (Congress) said no, we are ready to accept .... so what is this war?"
"And when the war began, they formed a Defence Committee of the Cabinet and Mountbatten was made chairman of that..." - Dwivedi told the apex court.
"So when you read the Constitution and 370, please bear in mind these things", he said.
Ridiculing referring the matter to UN, he was also critical of the entire game plans:
"....the same very power which for geo political reasons the US and the UK which wanted to partition India they were made the arbiters".
"If this situation is lost sight of there are problems of both ends...you accept their contention then this becomes permanent...there is proviso under 368, we cannot amend it. Go by the route of 370 ....370 is permanent.
Therefore, my Lord, we are left at the mercy of local vested interest....which does not always coincide with people's interest."
"Nothing is lost....they (J&K) is put at par.....The basic structure of Federalism is protected. I don't know how submissions were made that Federalism is affected?"
"This (abrogation of Article 370) is federialising at par...."
At this juncture CJI Chandrachud intervened and said, "According to them (petitioners' counsels) Federalism is affected because ..... existence of a State is a very vital element in Federalism. The continued existence of State is integral to federalism in India".
Dwivedi, however, argued: Unless you accept asymmetry as basic structure then they are affeted....asymmetry is never basic structure. They are for special conditions.....".
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| Rakesh Dwivedi |
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