 in the National Judicial Academy of Mobile, which is one of the premier institutions, wherein the judicial officers and judges are being assimilated with the friends and the facets of law. Compared with the fact he's a famous author and above all, just like all of us majority, he's a advocate by profession. But his writing skills, though I've been connected with him only for last one week. But his musings and the various thought processes which he shares itself gives you a thought-provoking process of mind. Consequently, we requested him that let's go in the flashback what we see in the movies, as to how the constitution came into being. And he was kind enough to accede to our request to take things forward. And he has also been kind enough that in case there are any questions, he will be taking forward and share his knowledge and inputs on the same. Over to you, Mr. Raghun. Yeah, thank you. Good evening. Good evening, friends. Actually, it is now 5 p.m. and we are vying with competition from the farewell function for the Chief Justice of India, Darwin Bob Day. Even I have the link to that. I wonder, many of you may be eager to go if I can share the link with that rather than you would be happy to miss this. Because I don't know how many of you had occasion to visit his court today morning. It was absolutely fascinating. It was the satellite case with regard to the oxygen and I had occasion and I even penned an article which may come tomorrow. Now be that as it may. Let me make it very clear. Don't have too high expectations. I am not a constitutional scholar by any means. I am in the words of Justice V. R. Krishna, a pedestrian practitioner of law who has enormous interest in reading and therefore I was led to this. Now my immediate interest or right or some kind of entitlement for me to come and address you about the sneak peek into the making of our constitution arises from my recent work on the making of India's constitution and anecdotes musings and episodes published by Oak Bridge. I am not trying to advertise the book. I am not even showing you the book. Now that book got published on 26th November 2020 on Constitution Day. And how my interest grew to write was number one, it was basically pandemic. And I am a compulsive writer. Every day with my iPhone as an instrument or a tool, I let go the arrows and I have a captive audience. I don't know how many of them read or use the delete button every time a message comes from me. I don't know. But there are many people who do respond and say it's quite interesting. It's quite nice. Why don't you go for a book so on and so forth. And so began my writing on these musings on Constitution which was now converted into a book and got published and it just sold out well. First a few hours, it was a bestseller because about 600 copies were sold before the data publication itself, not because it's a good book or it's about the constitution. Now how my interest grew is I follow the US politics enormously, US politics and what goes on in the US and about the Constitution, about the Supreme Court of United States, quotas as they call it and the nine judges will sit on the bench, everything I follow with great keenness. Now I find one thing which was very fascinating one in America at last count since 1789. I believe there have been about 8,000 publications on their founders. There were only 55 founders. There are more than 8,000 publications and some of the leading of them like Benjamin Franklin, John Adams, James Madison, Thomas Jefferson and so on. There are about more than 8,000 publications and they have not stopped. Thomas Jefferson biography has been released even during this pandemic, a new biography has been released. That is the kind of interest they generate in the America and this in the United States of America where recently I heard Michael Sandel say no matter that we may be, we may have our, we may have the elite schools here, not more than 16% of America reads the books that are published in America, not more than 16%. And now after the social media has invaded our myths, he says not more than 8% have the attention pan to read more than half an hour of any book. So what he says is every time I write a book, I go and publicize my book myself because otherwise most people are unlikely to read the book even if they buy the book. So that is also one of the reasons that prompted me to talk about my book on a couple of occasions before also. Now coming back to India, why you should talk about the Constituent Assembly which was formed in 1946. See if you, the most interesting facet of how the Constituent Assembly came into being is all of us know the constitution itself is premised or founded on the Government of India Act of 1935. Around 70% of that is borrowed from Government of India Act or a carryover from the British legislation. The rest of 30% only we have borrowed from say Ireland, a few principles like the Directive Principles from Japan, procedure established by law instead of due process of law or from even far away Australia, a couple of principles. And of course from America the First Amendment principles with the reasonable restrictions in our constitution. This is how we came about. But the most interesting aspect about the formation of the Constituent Assembly is the idea was propounded by M. N. Roy. M. N. Roy, if you think very carefully, he was one of the founder members of the Communist Party of India in 1927. It was he who mooted the idea of Constituent Assembly in 1937. And in 1938, he picked up, Javala Nehru picked up the idea in one of the Congress sessions. Then in 1939, in a Swaraj Party session, Sri Rajagopalatari expanded on that proposition. And in 1940, when the Crip's mission was coming, the first one of them was coming, Javala Mahatma Gandhi refused to meet them because every time we want independence for India, you are now dodging and saying the world war, the second world war is going on, we want. And therefore he said it's a post dated receipt you are offering. I'm not interested. Ultimately, when three members of the Stafford Crips Commission came, Lawrence Alexander of Stafford Crips, it was in 1946, the idea for the Constituent Assembly was actually formed. Sometime in March 1946, they came. Then if I remember right, May 5th 1946, they published a version and they gave the template of the formation or the procedure by which we can constitute the Constituent Assembly and then go about doing that. But you all remember the whole of the Constituent Assembly started its functioning on December 6th, 1946. The members of the Constituent Assembly were elected by three different methods, one by proportional representation you all know. Previously in India, we had about four, 11 British Indian states. Then we had 565 princes led the provinces and we had the Chief Commissioner led the communities. They were of commissioner rates, which were about four or five. So what we had a mix of both elected as well as nominated representatives to the Constituent Assembly and that is how we constituted about 293 plus 96 plus 4 and so on and so forth. Ultimately, it became 389 members. Then as the Constituent Assembly sat and Satyendra Nath Sinha was elected as the chairman, the proton chairman to preside over the before B.R. Ambedkar took over from him and Satyendra Nath Sinha was introduced by none less than JB Kripalani. He introduced him and he became one interesting facet and nugget I can say is there was a telegram from the American Secretary of State when the Constituent Assembly began and Satyendra Nath Sinha read the telegram saying that congratulating the Indian government and we the people for trying to give a constitution up to ourselves. The copy of the telegram was made by Dr. Manmohan Singh Prime Minister then when Barack Obama gave and he gave that particular assignment and Obama has talked about it even his latest book My Beloved Country where he has written in that book. He has because they have a fascination for the Constitution. How many of us are interested in the Constitution? Very limited number, not even the legal community, not even among the judges. They come to know about the provision only when the Constitution is before them for consideration. Very rarely people except I would say for Justice R.F. Nariman. He is an encyclopedia of the Constitution of not only of India, every other Constitution. I would recommend to each one of you to try and latch on to every one of the YouTube lectures that are available. Particularly one where he spoke in the Madurai Bench of the Madrasai Court Madurai Bench in the Bar Association. He's given a lecture about the basic structure of the Constitution ninth schedule and how it came into being and how we have borrowed all these principles from various and there is one more you should read. There is one YouTube lecture of Justice Nariman where he talks about the dissenting judgments from the Supreme Court and where it all started. It started with A.K. Gopalan and Fasal Ali's famous dissent in A.K. Gopalan which is now today the law of the land. A.K. Gopalan gave birth to Fasal Ali's dissent and that Fasal Ali is dissent today as argued by M.N. Nambiar who is the father of the present attorney general of India, Mr. K.K. Venugopal. He is the precursor to even Keshan and Bharati and the basic structure or the essential feature. Coming back to the formation of the Constituent Assembly out of 389 members. What happened is you all know that sometime in June the partition of India 1947 the partition of India was announced and Pakistan came into being. So 90 members out of this membership of the Constituent Assembly walked out saying that Pakistan will have its own constitution despite B.N. Rao, the consultant for the constitution who went and personally met the father of Pakistan. He met him personally and requested him not to do that and he said let's have some side of a confideration or some kind of an equation where he can give birth to a constitution which can apply to both the countries because as a neighbor he wanted them to have a similar kind but what has happened is they are an Islamic Republic completely fully based on religion whereas ours is a secular democratic Republic. So this is what happened. 289 members came into being and if you look at that about 110 days the Constituent Assembly met and debated. They had about 9,735 amendments which are proposed but out of which 2475 which actually introduced and debated by the members and now there was in our constitution when it was framed there were about 395 articles. Today it is about 450 articles after all the 103 amendments which have come into being and we are proposing to have a few more also. Now there are more than 40. If you compare to the American constitution there are only seven articles and there are only 27 amendments in the last 243 years. Getting the American constitution amendment is an absolute impossibility. There has been no amendment after 1973 if I recall right in the American Republic and they are trying to do one for their voting rights. Now compared to the American constitution our constitution why it's so big and all that Ambedkar in his brilliant speech while winding up the proceedings gave it. He said why we should have such a big constitution why should it be why should it not be Chris because he first he said we are a large country we are too bigger country we cannot afford to leave and 15 percent of the population of 330 million then were illiterate. The one interesting facet is even as the Constituent Assembly was formed there was absolute or total unanimity among all the members that there should be adult universal suffrage in India for all persons over and about 21 years. You please remember it took 120 years for America to reach the state even for women to be given it took about 80 years and even in Switzerland it was only sometime in 1920 to get the right to women and even in America in England women had to fight for the right to vote in the early years but in our country no woman had to fight for the right to vote because it has given to them on a platter the day India became a republic this is a great improvement over the other constitutions. Why I'm saying when the Constituent Assembly was formed on the very day the Constituent Assembly began its deliberations there was an movement for preparing the electoral roles for all the members for all the voters in India and incidentally I have a connection with constitution on two different aspects one one of my neighbors is Mr. V was now they have vacated they're no longer there V.K. Thiruvankarachary he was an advocate general of Tamil Nadu his father in law was N. Gopal Semeyengar after room the area I lived in Gopalapuram his name 231 232 Lloyds Road which is adjacent to us and behind me is Dr. K. B. Madhav he was a grandfather of one of my best friends and he was a statistical institute chairman he was the person who prepared the voters list and how V.K. Dichari came into being was after the constitution was framed and enacted you all know about the famous Champakam Durey Rajan case where the Madrasai court Madras government proposed a communal government order by which they gave reservation for backward classes Shedun Kaas and Shedul Traik this was struck down by the Madrasai court as being opposed to the constitution as it then moved in article 15 and 16 then then it was V.K. Thiruvankarachary who proposed an amendment to the constitution it became the first amendment to the constitution. Javelin Anayu proposed it was passed by parliament today reservation is a reality all over India it has now gone up to 16 and percent in India and now you may be observing the Supreme Court is hearing the Maratha Advocate case where the Constitution bench has reserved orders thus is the envy Ramana who is likely to become who is slated to become the Chief Justice tomorrow is leading the bench orders have been reserved India the whole of India is looking forward whether they refer to a larger bench or they will confirm the earlier judgments of the Supreme Court with regard to reservation. Now when you go back to the Constituent Assembly debates the members some of the members were there most of the members were Gandhi and in Outlook absolutely Gandhi and in Outlook they had their own principles but one important thing we should all remember 289 of them assembled together during the time India was undergoing a partition you all know about the training to Pakistan that Kushman Singh wrote a famous book where he recoins the events about the murder those who are hailing from Punjab and all maybe actually have lived that experience or heard from elder person we in Tamil Nadu were totally oblivious to what was happening there even today we don't know most of the time in a war out of some bombing or something that takes place or Valakot happens only you people on the borders are worried we don't have to worry because the armed forces men are taking care of our lives and we can sleep well now what happened is during that partition time these 289 people had sacrificed all their careers all their lives and assembled together to make a constitution for us and one important thing we should all understand this it is not as if the constituent assembly debated all the amendments and the constitution was made only inside no there was a drafting committee which was earlier appointed and Mr. V.N. Rao Dr. V.N. Rao he was appointed as a consultant for the constitution he prepared a constitution of its own and Dr. Ambedkar prepared a constitution of its own the fundamental rights were independently taken at a separate committee examining them Dr. K.T. Shah who was a very active member who was called as a rebel by Ambedkar in one of his speeches in the constituent assembly he prepared one constitution it was a merger or a combination or a conglomeration of all these enactments that our constitution came into being now when it was debated it is not as if the debates themselves resulted in the final conclusions I'll give you some see some of the characters in the constituent assembly we need to know about for instance take the case of V.N. Rao the benigal nursing around what a family he had benigal nursing around was an IAS officer he was not a constitutional expert or anything like that he also took into account the reading he did and he was an erudite scholar who became a constitutionalist by virtue of his experience as an administrator when he was first appointed in ICS his first to fourth posting was somewhere in the Madras presidency he belonged to the Madras presidency as you may all recall Madras presidency included Karnataka Andhra Pradesh and so on and so forth so it was a larger extent now when he was appointed in Madras presidency in the land administration he wrote a letter to the government please do not appoint me in the Madras presidency because I belong to Madras and I may know a lot of persons there is likely to be nepotism and favoritism being shown by me to my relatives and friends and those known to me so please post me outside the jurisdiction where I don't know anybody see the kind of persons we had when we framed our constitution see the character of the persons have we have we lived up to the reputation these people the second thing is to V.N. Rao's immediate brother was V. Shiva Rao how is he important it was V. Shiva Rao who compiled all the speeches in the constitutional assembly and put together an understanding of what the debates meant when the provisions were taken up to being he also compiled a lot of letters which were exchanged between politicians between judges between members of the Constituent Assembly and so on and even went up to the transfer of power there are there it's about a 12 volume edition transfer of power which is available in England I don't know if we have the the original is now parked in the Oxford Union Library if I remember correct all these were gone into by Shiva Rao and he has given an exposition as to how the Constituent Assembly debate should be written it is not as if you can read go into the Constituent Assembly and understand whatever is there it is very difficult each syllable each comma each word each every syntax that is now given there for us to understand we need to be we need to contextualize the whole thing that be Shiva Rao Redd did who is the brother of V.N. Rao now the next brother of V. Shiva Rao was V. Rama Rao in people in Karnataka used to talk about V.N. Rama Rao as a person who used to signed on the 1 rupee note why because he happened to be the RBI governor at that time just imagine one family contributing one to the Constituent Assembly as a consultant second who wrote on the constitution and how the Constituent Assembly debate should be read three was a RBI governor these are the characteristics of the person who put together the constitution we are now dealing with now take the case of some of the other persons like Harivishnu Kamath he was from Maharashtra very successful practitioner and Bhargava another practitioner from Gujarat very interesting fact about that Bhargava and Frank Antony who are members of the Constituent Assembly is one of the principal's directive principles is with regard to council order and all anti the banning council order in India which was proposed a Gandhian principle and now it was it has gone into the directive principles it was sought to be introduced as a fundamental right so seriously of course now remains where it remains directive principles but all the states are entitled to legislate because it is part of the state power under the relevant state list which is provided in the 7th shooting of the constitution now at that case it was Bhargava and Frank Antony as Constituent Assembly members who agitated and fought over whether council order should be a directive principle or it should be a fundamental right incidentally when the matter went to Supreme Court after Gujarat government banned the slaughter of cows and it was challenged before the Supreme Court in the earliest litigation it was the same Bhargava and Frank Antony who fought in the Supreme Court some of these nuggets we need to understand about if we fascinate you see one thing about when you look at the constitution we all know how the constitution looks like it was not it it was written on two copies just two copies of the constitution one in English one in Hindi one Mr. Rai Zada from Delhi village he is the person who hand wrote that constitution and if you look at the constitution there are only two copies which have the photographs which were all the graphics which were drawn by a team of from Shanti Nikhetan led by Nandalal Bose everything starting from the Vedic page to the Mughal period and thereafter the assumption of office by the Indian government all this were completely captured in drawing and it is all part and parcel of our constitution and our rich cultural and historical heritage now that Rai Zada when Nair was introduced to Rai Zada and told that the gentleman has got a fantastic handwriting he should take his services for the writing Rai Zada laid two conditions for writing the constitution he said two conditions are one I will sign on the last page on the page of every page of the constitution and on the last page I will again sign and I will put my grandfather's name Nair was curious why is it that you want to put your grandfather's name in the last page he said I was orphaned very early in my life it was only my grandfather who brought me up the one thing he told me right from my early age was please focus and concentrate on your handwriting someday somewhere you will get the benefit of it today I am reading the reports of going by the advice of my grandfather and therefore I owe it to him I want to pay obeisance by putting his name in it was allowed our constitution contains the name of a grandfather of a honest citizen who had nothing to do with the constitution except that grandson Rondi constitution the two copies that we have they're all stored in the parliament house in a helium gas filled space it is available those two copies for instance you take there is a character in America called as David Rubenstein you must listen you must know about this gentleman David Rubenstein he is what is called as a patriotic philanthropist now he was a Jew he started off as a lawyer in Jimmy Carter's time and he went into Jimmy Carter's presidency as a secretary and he came out today he is the founder member of the hedge fund carline he is running that carline firm he has devoted 50 percent of his money towards acquiring all the assets he even tried to acquire one asset with regard to our constitution to keep it in the memorial museum in America that is he has acquired the Magna Carta one of the seven copies that is available 1215 Magna Carta he has pursued it and he's put it and when the Statue of Liberty was falling and there were pieces were crumbling there was a huge debate going on in the US Congress as to who is to fund and how much it will cost how it will be budgeted and all this man stepped in and said shut up all you people I will spend every money you take the credit I will at least don't stop me from doing that he completed the process of restoring and resurrecting the Statue of Liberty as it now stands then the Congress pleaded with him US Congress pleaded with him to take the money so that they can claim the benefit of having resurrected see that is the kind of interest they show in their constitution this man is a financier he's a hedge fund specialist what has he got to do with the American history that association with history comes from the love for the nation and the passion now unless we know about your constitution unless we know about who are the persons who are responsible for what we are able to enjoy today all the freedoms and we are enjoying today where did it come from it did not come from the just the 395 articles it came from the blood sweat tears art toil from the souls of these characters who framed it for us how did they frame is they were all soul-learned people to talk about to see for instance Sam Manek Shah says the politician one of one defense minister came to Sam Manek Shah and told him could you please tell me the difference between howitzer and gun to that Sam Manek Shah replied we have politicians who don't know the difference between Martha and Mota gun and howitzer or gorilla and gorilla so most of them look like the farmer see that is the kind of characters we have as politicians who are in office now think about the great men we had great men and women incidentally there were 15 women in the Constituent Assembly and they spoke they spoke about six percent of the time that was spoken taken by all the members was spoken by women 15 of the members out of 15 only nine spoke six did not speak Tamil Nadu as I can boast of two people one Dakshayani Vellayudham she was the first Dalit member from Kerala she was Dakshayani Vellayudham she was the first Dalit member in the Constituent Assembly and another one is Amu Swaminathan she is the mother of Goen Swaminathan who was an advocate general of Tamil Nadu I can't forget to say I should not I should remember to say this as a lovely aside or an anecdote it was Goen Swaminathan who saved Keswan and Parathi from being reviewed Keswan and Parathi case to all may know in 1973 was heard by a 13 member bench of the Supreme Court I'm not going into what happened in that case and all that I'll only give it as an anecdotal because I'm only giving a peek into the making of our constitution the making of the constitution is not making alone how it functions if you go to Granville last in probably you can learn a lot the cornerstone of India Granville last in 1960 he came in wrote about that and from he was surprised that not many people in India see the connection for India with the Constituent Assemblies also goes to the Madras University we had a Madras School of Law which was started by A. L. Mudriar who was the vice chancellor for a long time he had one Alexander Obitz he was from London School he was he was cherry picked by A. L. Mudriar to come and become the professor in this college and he was the one who wrote about the constitutional wisdom of giving importance and reliance to the Constituent Assembly debate after the AK Gopalan case when the Supreme Court refused to go into the Constituent Assembly debates now coming back to the issue of all these issues we should understand in the case one and Bharati case when 13 judges got together and decided the case if you look at you should read a beautiful book by T. R. Anbiyar Juna senior advocate who is no more he was the senior of H. M. Sirwai who wrote the Constitution of India H. M. Sirwai is the classic Magnum Opus 2 volumes wonderful book anybody who's interested in the Constitution must read it Sirwai's junior he was Anbiyar Juna at that time he was representing the state of Maharashtra in Keshavanan state of Kerala versus Keshavanan Bharati he was representing that here Anbiyar Juna writes the 13 judges judgment is is supposed to be a seven six verdict in favor of the holding that parliament's power to amend the Constitution was limited and that is what was was not was limited and they cannot encroach into the fundamental rights they even hark back to the Constituent Assembly debates with regard to how the fundamental rights were escalated to such a height that the fundamental rights were not given from by the Constitution or did not come from the Constitution they are natural or birth rights or inalienable rights as soon as the man is born and that is only a recognition made by the Constitution to give that right it's not as if the Constitution is giving those right those debates are all fantastic it's about thousand one thousand eleven pages judgment you should anybody should read that to understand even as a novel or somebody who is interested in that after this verdict of seven six with Anbiyar Juna says if anyone reads Keshavanan Bharati carefully it will be six judgments in favor of parliament supreme power to amend six judgments in favor of restricting parliament's cover power to amend the Constitution less the basic structure of the Constitution or the essential teacher now one judgment of HR Kanna he said went in the middle he neither said that they did not have the power nor but there were some stray sentences which were leaning in favor of the seven holding that parliament's power should be restricted as was restricted now what happened is here and the Anbiyar Juna says that after the judgment was this judgment was actually delivered on 24 1973 interesting date because that was the date on which Chief Justice AK Sikri was retiring all these 13 judges subsequently have written that not one of them met together or consulted or exchanged the notes with regard to the judgment normally when a judgment is delivered with the Supreme Court we all think for instance Ramajan Babu B. Kesh we all don't know who wrote the judgment it is an anonymous judgment all five judges unanimous yes but who wrote anonymous we don't know from the language probably we can make out which portion belongs to be done but we may not be right but ordinarily what happens all the judges get together some person is vested with the right to write a judgment majority or minority then there is a exchange of notes then they may meet meeting of minds and possibly a consensus if it emerges if it does not it will come out with a majority and a minority opinion but if you see the Keshwan and Bharati judgment each judge who wrote a separate judgment none of them exchange notes and ultimately how Keshwan and Bharati became a law of the land was because there was a summary of the judgment which was prepared and God knows who prepared even today nobody knows who prepared that summary and that summary interestingly was not signed by all 13 it is signed only by seven it is signed only by seven not by all 13 and Andhya Arjuna says how Keshwan and Bharati became the law is several years afterwards in Indira Gandhi versus Rajanarayan case HR Khanna had the opportunity to explain what he had written in Keshwan and Bharati and that is how it came but even as Keshwan and Bharati was proposed AK Sikri was then AK Sikri retired you all know that Hegde and Sheila the senior judges were superseded by Indira Gandhi because of the Keshwan and Bharati judgment and also several other factors where Kumar Mangalam who was the law minister said I want committed judiciary and so on and so A. N. Ray was appointed superseded and these two gentlemen resigned and A. N. Ray became the judgment if you want to read about the fascinating of what happened you must read one HR Khanna's famous book famous book Thaun Thaun that book and the second one is MC Chagla's roses in December these two books you must read to understand what happened during those time of course and Anupal Givala several accounts are also there now afterwards when A. N. Ray became the Chief Justice there was a move that it was a literal conspiracy mooted how to reverse the Keshwan and Bharati all 13 judges one fine day met together and decided and started hearing the case that it was a it was meant for a review they wanted by that time the composition of the bench had completely changed because three or four judges had retired big and others and Krishna here and the company had come in now when these 13 judges were sat together Nani Palkivala was summoned from USA that he had gone in because he was virtually not an active practice at that time so he came back and he came back and he was addressing the 13 judges he asked a simple question who has filed the review petition before this bench who has filed what are the grounds upon which this review petition is filed each judge was looking at the other and the Chief Justice then blurted out that I believe it was the state government of Tamil Nadu which has done that and therefore and it was at that time the short and swift man is the very short man one of the fine he was a barrister going Swami Nathan caught up and said I have firm and final instructions from the government of Tamil Nadu so the government of Tamil Nadu was the same Congress government as the Indra and the government which was in Delhi he got up and said I have instructions to say there is no such review petition ever moved or filed by us and you can take it that we are not interested in the review of the judgment because this Keswan and Bharati judgment saved India by protecting the amendments to the fundamental rights from the parliament's supreme power thus the review petition was closed without if interestingly if you look at it the supreme court record do not contain anything about this review petition assembly closure nothing it is all accounts from the newspapers that we get as to what has happened there is no authentic version of how the review came into being how the judges sat together just see the power of the judges to constitute the review one of the final all 13 means there are only 13 judges at that time now our review you go back to the constituent assembly and look at how the fundamental rights were considered by our constituent assembly members you will understand it was it was really a painful moment and Keswan and Bharati was sought to be overruled by the supreme court then you have the other case you see the most fair article 21 is the most important it is called as a soul of the heart of the constitution that's what Ambedkar called about it article 21 right to life and liberty the expression that is originally used in the recommended constitution that V.N. Rao wrote was due process of law due process of law if you go back to the American constitution and look up and look into the case law starting with the Miranda principle and so on and so forth it is a very tough principle due process of law is so difficult to establish that any government legislation or any government order with regard to incarceration or any other purpose can be challenged as not within the meaning and therefore it was Justice Felix Frankfurter who was a supreme court judge who advised V.N. Rao no matter what you do whether your constitution you are successful in forming in within a time or not please do not include the expression due process of law please instead alternate expression procedure established by law please use it because it is much easier to focus on much easier to explain far more easy to not to get into troubled areas now procedure established by law where do you get it to get it in the Japanese constitution from the Japanese constitution India used in article 21 procedure established by law if you look at A.K. Gopalan's case in 1941 A.K. Gopalan was the state of Madras incidentally this was the first constitution bank six supreme court judges normally we have about uh seven or but at the time when the supreme court came into being in 1950 there were only six judges all six of them sat together and in one of the finest judgments of dissent Fazal Ali wrote that article 21 when it is read should be read alongside article 19 right to assembly and so on and so forth should not be and article 14 right the equality it should not be right in a isolated or siloed manner by reading every fundamental right separately or distinct from each other it is all one composite whole which our framers have breathed life into the constitution this is the very expression that he wrote he also said article 21 is the golden chariot upon which the golden the golden wheels on which the golden chariot is run and therefore we should not forget now very very interestingly this this proposition our argument was made for the first time by M.N. Nambiar who himself was not a constitutional lawyer father of K.K. Venugopal our president at all in general who is close to 19 now M.N. Nambiar when he argued this proposition the supreme court dismissed it saying that constitutional assembly debates are irrelevant we don't have to see at that time in India there was what was called as an exclusionary rule we are basing upon the British president where if the if the particular provision of the particular constitution or the enactment was complete in itself then you don't have to go outside for tools to explain what is the meaning you are to be given to this or that they refuse to go into that but it was pointed out by Alexander Obitsch in Madras when he wrote a small booklet on the constitutional law in India or the constitutional development in India when he wrote that small booklet sometime in nineteen fifty seven if I remember right he wrote that when the exclusion in principle is dead and gone and dead and buried as a dodo in Britain why is India now out of the colonial past still hanging on to that and thereafter only when the Atibari tea case came in 90 sometime in 1960 the supreme court for the first time made bold the Chief Justice Dhajendra Ghatkar he made bold and said this is how we should do it we should go into the Constituent Assembly debates now when you come back to the Constituent Assembly debates see I will I will only see I can go on and on I'll be anecdotal as much as possible what I will try to tell you is this see when I was reading about the Constituent Assembly debates they come in five volumes Indian Institute of Public Administration for the first time published it it has come I had occasion to go through each of those volumes and even now I have attracted and got it on my system I can read it and talk into it every time I need it so those debates communicate so much more the expression what they wanted to communicate what our framers our founders and in mind everything is captured the kind of debate for instance letter Ambedkar whenever he proposed the amendment there will be immediate opposition from a few members of the Constituent Assembly some of them were noted from that one was Katie Shah another was Harivish to Kamath another was Shyama Prasad Mukherjee founder of Jansa very incidentally I need to say that today I was reading some girl that BJP wanted Sanskrit to be introduced and all that how many people know that in the Constituent Assembly debates Ambedkar proposed Constitu proposed Sanskrit as the national language of the official language for India Ambedkar proposed and who opposed it Shyama Prasad Mukherjee opposed it he said only a few states are capable of handling therefore we will oppose it and now Mr. Murli Manohar Joshi the ex-president of BJP is saying we should bring back see all this we need to know so that we can corner our politicians as to how their changes are how their stands are shifting at least if they should have the goodness or grace to admit that yeah we took that stand now now we understand differently for instance even with regard to Hindi as the official language there was very strong opposition from the Indian country from the Tamil Nadu from the southern contingent that Hindi should not be done it may be seen to be foisted then what happened Tamil Nadu saw in 1965 the anti-Indian agitation there after we considered the official language rights to all the languages now why did our framers had a larger vision agreed but they were also men they were also had their foibles we should understand all this to understand what they wanted to communicate by virtue of this and that we must read those debates these debates mean a lot see Katie Shah and Hari Vishnu Kamath made a brilliant fact and every single amendment that Ambedkar will propose they will stand up and oppose for this reason of for instance they wanted to use the word secular they strongly opposed the word secular but Hari Vishnu Kamath suggested that India should form itself in the name of God US constitution is in the name of God you take the human US dollar it says in the name of God only it says now all of us should believe no our framers refused no our culture they did not name it Hindu Muslim this that they did not said our culture includes not only believers but non-believers are also part and parcel of the Indian culture as much a person who believes in God as much a person who does not believe in God they have an equal right therefore we shall remain what we are now how the definition of the word secular was understood by them not by being anti-religious what they said was all the religions shall have the equal rights unlike the old the medieval times when the church and the king were separated and all that church will be apart of the church will be superior so on and so forth church will be separated not like that here we wanted every religion to be given the right that is why article 25 that fascinating debate will come up during the CA the citizenship act which has now been challenged now i will go to article 370 because i am dying to talk about it because it relates to N. Gopal Sehmengar who was my neighbor oh my old neighbor he was the first defense minister he was previously the prime minister of then it was called as prime minister of Kashmir now how did it come about there is a fascinating story that we need to do because i recently wrote a book i'm not trying to advertise what is my authority to say that i'm explaining or justifying i recently wrote a book Sam Maneksha's armed forces i had occasion to read about the 1947 formation of Kashmir and how Harissing refused to join with India he wanted to remain separate from Pakistan he did not want to join either of them in what circumstances the instrument of accession was signed all this will be gone into when the article 370 provision is going to be challenged with the supreme court but i had a reason to read all this and i'm very well aware of what happened in 1946 when Harissing was dilly telling us whether to join or not Sheikh Abdullah father of the president Farooq Abdullah went to Pakistan he met the Pakistani prime minister then and offered that he would like to separate and there would be a confederacy where he will have equal access to both the states he wanted to do something like that neither join here nor there the Pakistan totally rejected this and a telegram was sent to power the cash and then why it was rejected was Pakistan had already made arrangements to invade Kashmir and capture it that is why even when the crypt's mission cabinet mission was going on he did not Pakistan did not agree agreed as if Kashmir can stay with India they did not want any part of Kashmir to come with Pakistan because they had already made afford all the plans to invade Kashmir and take up a portion of it because they thought Kashmir was at Musa was Islamic in majority Islamic and therefore the people of Kashmir may try to join the so the king at that time the prince the prince in that time Harissing was the emperor prince of Kashmir they did not believe that the muslim population in Kashmir also may not readily join with Pakistan so in 1947 when in the it was not the Pakistani army it was camouflages of as ordinary people from tribal villages they made the invasion to Kashmir and they were very close to Kashmir almost going somewhere near Srinagar when frantic calls were made to Delhi to send the forces armed forces to come and rescue or save Kashmir from being taken over by Pakistan there was a cabinet meeting that was going on at that particular moment of time Jawaharlal Eru was not there in the meeting and the meeting was going on and there was frantic calls as to what should be done Sardar Patel was sitting in the meeting because he was a home minister he was presiding over that Sam Manik Shah was also in the meeting then immediately there was a frantic call saying Harissing is desperate he wants that Pakistan should be stopped no matter what what are we going to do about that Sardar Patel said in the absence of Jawaharlal Eru I am going to decide that let them go let the armed armed forces from Haryana it was from Haryana they went and they were asked that the flights were asked to organize to it to be sent to Kashmir just then when the meeting was concluding Jawaharlal Eru entered Sardar Patel told him Jawaharlal Eru had been oppressed of this and he came back and said why are you doing this why should we be going and protecting the Britishers have clearly told us our hands should be off Kashmir is neither India nor Pakistan Pakistan is invading it is for Kashmir to protect itself why should India go Sardar Patel asked a simple question which is all recorded in history from V Shankar Jawaharlal Eru's own secretary's book he asked a simple question Jawaharlal do you want Kashmir to stay in India or not he said yes then he turned around to Sam Manik Shah and said Jawaharlal given the order go and rescue Kashmir that is how Kashmir came to be saved now after 1947 saving Kashmir so we lost portions of the Kashmir which ties which still lies with Pakistan the park occupied Kashmir portion which is lying under there is a parliament resolution also sometime in 2011 saying that one day we will go and rescue that whether it may happen is a different matter now how did article 370 come into being at that time after this episode Sheikh Abdullah was deeply upset sometime in 19th and Jawaharlal Eru wanted to appease Sheikh Abdullah that is how it seemed so he sent N Gopal Samaengar to go and meet with Sheikh Abdullah and find out what way the constituent assembly can be persuaded to have a provision in the constitution which will secure the separate other special place for Kashmir so that the Kashmiris did not feel let down or isolated or insulated from the other republic that India was forming itself into now when the constituent assembly was debating all this you should read the speech of Sama Prasad Nikarji he poured his heart out he poured blood he's I mean the manner in which Sama Prasad Nikarji and Hari Vishnu Kamat spoke the person who was persuaded to go by that no special provision for Kashmir the first person who did it was B R Ambedkar and it is not at all projected it is not at all advertised or it is not at all in public eye it is not put in public domain that when article 370 was accepted by the constituent assembly we are Ambedkar walked out of the parliament this was the first ever principle to work out from our parliament in the history of Indian Republic nobody has propagated or told the world about this particular fact Ambedkar was not add item with the constituent assembly in passing article 370 how did it then come about Gopal Samaingar spoke to Abdullah and Abdullah wanted a transient or a transitory or temporary provision he wrote a letter to Sardar Patel saying that this is how we are going we are not going ahead and doing everything that Abdullah wants but if he can appease him by keeping him quiet at this point of time so that Hari Singh instrument of accession can be implemented in full thereafter 10 years down the line look at the transient provision the 370 and all was only meant for 10 years like the reservation but it is but extended like that now he told Sathar Patel wrote Gopal Samaingar wrote a letter to Sathar Patel Sathar Patel strongly I have recorded in my book all these letters exchanges I am not speaking from the air and these exchanges clearly demonstrate Sathar Patel saw what would happen subsequently Sathar Patel was far-sighted at the great foresight and the prescient thinking to say what will happen and please I will tell you B Shankar IIS in Jawaharlal's own secretary he says after all these exchanges when article 370 came to be passed in parliament by the Constituent Assembly adopted there were the first to walk out was Ambedkar and there were several others who also walked out and after that B Shankar wrote in his letter when I went and met Sathar Patel after this was adopted and Jawaharlal Nehru was pleased as punch that's the expression he uses pleased as punch and was speaking to Sheikh Abdullah Sathar Patel told me article 370 may have become part of the constitution of India but one day I am telling you Jawahar Rohega this is exactly the expression he has put in his now I have written that whether Jawaharlal was crying or not India is today crying as to what if article 370 had not come at all all the problems we are facing article 35 year and so on and so forth see that is the foresight but but again please understand when ultimately the constitution was came into being and constitution has adopted on 26th November 1949 out of 289 member 274 sign 274 sign none of them dissented you know an interesting fact the first signature is that of Jawaharlal Nehru the last signature is of his son-in-law and the last but one signature if you if you have a look at the original or the I think it is available on youtube on internet also if you look at it between the last but one and the last signature Bob Rajendra Prasad signature is pleased in that means Rajendra Prasad was not agreeing with what has been adopted but though he was the president of the assembly itself and the president of the nation his signature is introduced into that so all these people despite all the differences ultimately the dissolved them came together as one to represent one nation in front of the eyes of the whole world that is the majesty with which the constituent assembly was came into being and you see that is why I see we need not think of them or defy them as gods or great vodas and so on and so forth let us give them what is due they were great patriots they were great learned men they had great interested thought ultimately what got together was the nation the kind of polarized and the division and divided status we are living in is what never happened see even in america take the case of america there were 13 states the emancipation the first declaration of independence was sometime in 1776 but it took 13 years for the constitution to be enacted in 1789 and it was written by thomas jefferson in the first word it has become very famous is all been created equal but do you know something thomas jefferson george washington james madison john adams almost about 43 out of the 55 founders had slaves as their employees slaves they had slaves 110 103 so on and so forth even today america is grappling with the issue how these people who had slaves in their villages and their farms could propound about talk about freedom and liberty and propagate to the world that this is it no please also understand in the context of what happened in donald j crumb versus joe biden election this is very important when the constituent assembly was debating about the adult separate there was serious dispute among the members as to why we should give a straight away adult separation to our population when 15 percent was only in literate 85 percent was totally unlettered illiterate why should be each one of the members starting from ambedkar all the other members even the lady members were not actually were wondering whether women can be given right along with them there were a couple of voices like dukha by deshu who wondered whether unlettered and illiterate persons should be given even she was wondering but india came to conclusion that we will give adult separate now what happened we also created an article 324 the election commission of india what a great foresight we had in creating the election commission now look at what is happening in america there is no federal election commission in india there is a federal election commission fec but fec only talks about the funding of elections to the parties that is all or the candidate it doesn't talk there are 50 states in america there are 50 states having 50 different rules and there are 3100 counties in those 50 states and 3100 counties have got 3100 separate rules so the voting rights are given as per different states different rules that is why when donald trump lost by 6 million votes joseph are vital see in the last 32 years the democrats have won 28 years they have won only once the republic have won in the popular vote and also won the president otherwise it is only the electoral college system how did the electoral college come that came by way of a compromise between the slave states in the southern countries and the northern states and the northern states that is the slave states were much bigger they want they did not a much smaller but they had the slaves they want did not want to give the right to the slaves and this was discussed and debated in parliament aladi kishnayar uh krishnasamy ayer one of the great um ambetkar in his last speech talks so much about aladi kishnayar krishnasamy ayer and says everybody says i'm the one who propagated i'm the father no i yield to mr aladi krishnasamy ayer he is the author of because he was unaware he could not attend all the fun he spoke about the difference between the american state and how we have joined together at one despite being 565 princely states can we still admit say that only the britishers came and taught us that we were a one nation i don't agree with that proposition that india has an idea or a nation only began in 1600 when the britishers came we were all one in heart and soul that is demonstrated by the uh of the debates in the constitue and assembly now when you come to america there were 13 confederate states all of them got together it's a united states it's a land of emigrants there is no unanimity among them even today for instance if georgia is having a voting right suppressing pennsylvania that is why you had 60 lawsuits mailed by donald rams the republican party all of which were lost and and one more important thing we should understand all of us think the supreme court is very wise supreme court is doing judicial overreach so on and so forth please do not have that view but for the fact that the three pillars in india are working fantastic notwithstanding all the glitches all the watch we have all the complaints may have please understand our systems are robust because the consulate assembly they put together a wonderful foundation for the functioning of them imagine the supreme court of india sitting back and keeping quiet when there is a fight between has to work as to who has won the election or who has not won the election and allowing the two presidents to fight among themselves and 60 suits suits being debated in all over the state and two suits coming to supreme court and being decided dismissed and so on and so forth it would not have happened our supreme court would have intervened that is the public interest litigation which is see you had yesterday the covid issue with regard to oxygen supply so motor supreme court has taken up the power of so motor is not there for the constitution of american constitution nine they just sit together and decide the most powerful leader of the free world they don't have that power our supreme court at antelion scalia sitting in bombay once i was reading a newspaper and saw a news item with regard to the panjab and adhyana high court ordering the director general of police to appear before him with regard to hundred rails kept in prison for a long time he told the person the supreme court judge who was sitting next to him our supreme court judge my god i can't imagine this kind of power in our bits at all i am compared to your high court i am only you should what is your lowest court he asked him in the supreme court judge it's called as a mounsif court then he said then i should call myself the supreme court of mounsif in america that is what antelion scalia so please understand let us i can only give a peek into the constituent assembly i don't want to hold you for a long time see i've heard several lectures when simon sinak one of the finest speakers he says people are more concerned about not the start of the speech but the end of the speech they are worried why this fellow is holding on for such a long time i don't want to retain you for a long time if any of you have got two questions i'll be glad to answer but i insist i shall conclude at 6 p.m. exactly what i promised to the organizer of this i'm grateful all of you because i i'm not i am used to speaking to even a audience of one in madras university when i gave a lecture just one gentleman was sitting or in the national judicial academy usually only 12 or 13 persons assembled not many judges come together right so i'm used to less number of people so i'm very happy about that that you have all been very patiently listening i'm grateful for that i hope some of you i have kindled some interest in you so that you go not necessarily buy my book on constitution but go into the constituent assembly debates and read at least portions of it thank you very much yeah mr raghavan you have actually not only kindled i can say the flame has been on and a lot of issues were quite insightful and at the same time i can also share the view with you that every topic and every debate does they say that all lawyers never think alike they are all thought processes are different same way when the debates were going on everybody was having its own processes and our thought processes and in and that's why they say that the constitution is a like a living organ organ and continues to move on with a positive and in one of the judgments i remember when you were speaking that there's has been a transit shift etc they said that the uh it's only the virtue of the ask to continue to remain stagnant so we all keep on moving forward in the positive direction and let's see if we have any questions at least on the chat we don't have i can check it out on the facebook no one question you know all my whenever i lecture even in the international judicial academy only one question one lady got up and asked me when do you intend to finish so i'm used to that no but we we we never asked because we had already posted that 615 is the outer limit and we knew that you would be in this session also on the facebook i am finding uh that it was a quite igniting session i will also check it on the youtube if we get some views i have another meeting at some time around this time so if there are no questions i will be glad to close yeah yeah i i think because uh you helped us actually to go in a flashback as well as at the same time in the living era plus prospective time thought process and it has been covered one is that uh this janathan says abrogation of 370 was in accordance with the constitutional provisions what is your take a break no no i see hello is he asking me about the legality of that yeah my my prediction is supreme court will uphold it because if you if you look at there is there are two judgments which we come into the four one is the name of the governor was prime minister then the the chief minister was prime minister it was converted to chief minister that was also by a similar amendment that was made to the constitution similar amendment second article 35 a which was introduced by deval nairu's time was also by the same process it's not as if but there is one judgment in surface he act with justice the nariman has given a judgment a different kind of judgment where he says article 370 is now uh part and parcel of the basic structure of the constitution that i very much doubt whether the supreme court is going to agree with that when the forefathers are very clearly said it was a transitory and a transient phase yeah okay so uh thank you mr and the same yeah it was a pleasure hearing you and it was a quite informative session not only for us but for all those people who were watching us thank you and tomorrow before we part for the day and uh i would ask my friends that they should share like and comment the youtube channel of beyond law clc so that we can also come to know that what people are intending to hear and tomorrow we will be having a session by honorable mr justice rajeem khalla former judge of banjab and high court that is revisiting the land revenue law but do connect with us tomorrow at 6 p.m thank you everyone stay safe stay blessed and wear the mask and maintain the social distance thank you thank you