It was claimed when British left all Indian states were independent....they were free...many felt so....
from there Sovereignty element is being derived...what is forgotten is that the Cabinet Mission plan was a again a British device to frame a larger Pakistan....
(meaning encourage anti-India politics) : counsel Rakesh Dwivedi
He maintained the British colonisers conspired to encourage three groups to push anti-India agenda !!
"central provinces - group A, west - Group B and Assam and Bengal all of it -- Group C..... something which even the Muslim League did not demand, the British were framing....because they wanted to control the two frontiers".
(This argument placed before the Supreme Court becomes relevant for northeast as insurgency was essentially encouraged in the region on the pretext that tribal group did not represent before Cabinet mission etc.... Dwivedi's argument makes it clear how simpleton people were misled and pushed towards a sinister of cycle of insurgency and anti-India geopolitics .....
This is something being felt even today..... the entire game was also abused and misused by American Christian missionaries and which at later stage opened a conflict between church and anti-India communist regimes)
Dwivedi told the bench of the Supreme Court: the Britishers urged all three groups to frame a respective constitution and once the constitution is framed; each province could decide whether they will go or remain out of the group.
Dwivedi argued that Indian Constituent assembly was prepared but without any binding of the Cabinet Mission.
"...and it was made very clear by our leaders that once Constituent Assembly starts, what we decide will not be your concern".
(Indian Constituent assembly started functioning on Dec 9, 1946 ....temporary chairman was Dr Rajendra Prasad)
"Please note sec 8 of India Independence Act....recognises that the Constituent assembly of India is that which starts functioning on Dec 9, 1946...
"But our independence is not a grant of India Independence Act....It is a result of long drawn people's struggles. That's why the (phrase) 'We the People' have come". - Dwivedi
India Independence Act .... says there shall be two dominions... - that means
"It's partitioning.....its a transition act. It does not grant us Independence".
"So the negotiations of the states are based on the 'republic' .....Therefore this republican character is the basis for accession".
another salient went articulated counsel Rakesh Dwivedi is 'what is the status of J&K Constituent Assembly and the Constitution of Jammu and Kashmir'.
Dwivedi says those who favour abrogation of the Article 370 say the 'source' of creation and disappearance of JK C A and constitution of J&K is Article 370 itself. "..... whereas the petitioners contend that the source of these two bodies flows from the crown of Hari Singh" . That is to say residuary sovereignty or remnant sovereignty and internal sovereignty .... and from this idea of remaining sovereignty there was a further concept introduced --
Bilateralism and remnant....
"It substitutes Maharaj by 'Maharaj acting on the advise of council of ministers'.....so the monarchy is dead. The popular rule came when the Maharaj came when he was in deep trouble on 25th October, 1946.....when the war was there; and everything was virtually being lost......
"What Hari Singh contemplated was completely different....what Karan Singh (Hari Singh's son) proclaimed was our relation will be defined by Constitution of India....these are two different contrasting expressions."
Solicitor General drags 'petitioner' Mohammad Akbar Lone into 'allegiance' gambit :: says "he should file affidavit that I owe allegiance to Constitution of India"
The hearing and debate on the Day 15 of hearing in Supreme Court on Article 370 turned dramatic when Solicitor General Tushar Mehta said the petitioner Mohammad Akbar Lone should file affidavit and must say -- "I strongly oppose terrorism and secesionism in J&K".
"He (Lone) should file an affidavit that I owe allegiance to the constitution of India. Because I'm before the highest court of the country. And he must say that I strongly oppose terrorism and secession-ism in J&K," Mehta said.
Solicitor General Tushar Mehta told the Court that Lone, one of the petitioners in the case, had said 'Pakistan Zindabad' in an assembly. (Bar&Bench)
The Supreme Court Bench later asked Lok Sabha MP Akbar Lone, a petitioner in the challenge to the abrogation of Article 370 of the Indian Constitution, to swear his allegiance to the Constitution of India.
Further, he was asked to state that Jammu and Kashmir is an integral part of the Union of India.
The Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant passed the direction while hearing the challenge to the abrogation of Article 370.
"Furnish an affidavit from Mr Lone that he swears allegiance to the Constitution of India and that J&K is an integral part of the Union of India like all Indians. We have everyone from Jammu and Kashmir here," the Court said.
The Court passed the direction after Solicitor General Tushar Mehta told the Court that Lone had previously said 'Pakistan Zindabad' in an assembly.
The SG demanded that Lone state that he strongly opposes terrorism and secessionism.
He has made speeches supporting terrorism and secessionism, the SG said.
Attorney General R Venkataramani also echoed the SG's sentiments.
"He (Lone) wants his fundamental rights to be enforced and then takes a contrary viewpoint," the AG said.
The CJI said that if Lone has invoked the jurisdiction of the Court under Article 32 of the Constitution, then he has to believe in the sovereignty of the nation and that Jammu and Kashmir is an integral part of India.
He added that Lone would have to furnish an affidavit stating the same.
"Do we take that Mr Akbar Lone believes in complete sovereignty of the nation and that J&K is an integral part of India?" the CJI asked.
Senior Advocate Kapil Sibal pointed out that Lone is a Member of Parliament (MP) in the Lok Sabha and suggested that he obviously believed that Jammu and Kashmir is a part of India.
"Nobody on this side (petitioner's side) has challenged the sovereignty of India. He is a member of the Lok Sabha. Of course, he does believe in J&K being a part of India. Of course, unconditionally, he believes it," Sibal said.
The CJI, however, insisted that Lone swear his allegiance to the Constitution on affidavit.
During the hearing on Monday counsel Giri said,
"When Article 370 was abrogated ....... and all provisions became applicable to J&K, J&K became a state at complete par with all other states.
If Article 370 is resurrected, that would also be violative of the basic structure of the Constitution.
Of course, CJI countered this stating: "This might be a little too far fetched because then that would be to postulate that original Article 370 was violative of basic structure."
Additional Solicitor General K M Nataraj: "Article 370 is the only provision in the Constitution which has a self destruction mechanism."
"This article did not confer any kind of right. Three, continued application of Article 370 discriminated and opposed to basic structure. Fourth, doctrine of federalism has no application so far as process under Art 370 is concerned.
"Kindly have a look at Art 368 in juxtaposition to Art 370...Article 368 recognises federalism in the matter of amendment to Constitution. The collective consent theory is introduced under Article 368 for the purpose of amending the Constitution."
He also said, "When it comes to Article 370, the language is just 'recommendation'".
CJI Chandrachud countered: "But equally, the adaptation to the Constitution ensured that even in the matter of amendment, the president still has to go through the route of Art 370(1)."
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