Sibal: And a precondition of that would be a recommendation of the Constituent Assembly for the president to pass an order. Absent that, it cannot be done. That was the understanding of the makers of Constitution.
Sibal: This explains several things- i) why it was a temporary provision; ii) Constituent Assembly had not been constituted then. It was envisaged in our constitution that it will be constituted and the ultimate authority of abrogating 370 would be with the Constituent Assembly.
Sibal: We're here to interpret the constitution. We're not here to legitimise a process which is inconsistent with the express terms of the Constitution.
Sibal: "The recommendation of the Constituent Assembly will be a condition precedent"- that explains the whole article. There can be nothing clearer. We, in hindsight, in 2023 can't interpret a provision except on its terms.
Sibal: What can be clearer than this? The last clause refers to what may happen later on, which is why it is temporary.
Sibal: "It is one of our commitments to the people and government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly..." This is a commitment made!
Senior Advocate Sibal reads from the Constituent Assembly debates.
Sibal: It was called a temporary provision because that had to be decided by the constituent assembly. And then you interpret the terms to find out how that power is to be exercised. Because it's unlike any other State. The residuary power was already with the State.
CJI DY Chandrachud: There are two types of temporary provisions in Part XXI. One type is Art 369. 369 says parliament has power to make laws for a period of 5 years...so temporary with reference to time. 370 is temporary in a sense that it is temporary till abrogated.
Sibal: Because there was an understanding. Otherwise why would you bring the term "constituent assembly" under 370? Suppose the constituent assembly decided not to be with India. Then what?