CJI: The recommendation of which Constituent assembly? This makes it very clear that one and only Constituent Assembly which was formed for the purpose of framing the constitution. Once the frame of the Constitution was done, it's done.
Sibal: Residuary power was with the state legislature and state government throughout - that was the condition on which the accession took place. I'll demonstrate that.
Sibal: There is residuary power.
CJI DY Chandrachud: Residuary power came in under what?
Sibal: In Kashmir it was there from the beginning. It's in the IoA.
CJI DY Chandrachud: Suppose it is not covered by (b)(i) and you have not taken the concurrence of State under (b)(ii)- on such an aspect, the state legislature cannot exercise power because it's not on the state list.
CJI DY Chandrachud: Suppose in the area of the Union and the Concurrent list something is not covered by (b)(i) or (ii)- that power is not entrusted to the State?
CJI DY Chandrachud: I just have one question. Article 370(1)(b)(i) refers to those matters in the IoA which have been ceded by the Maharaja to the Domini's power. (b)(ii) refers to all other matters in Union and concurrent list other than what is covered.
Sibal (reading Article 370(3)): Notwithstanding is the beginning of the article...so if the constituent assembly recommended that we want to abrogate 370, on that recommendation the president will issue notification.
Sibal: Same template of (b) and (d) and they can reject it. They need not confirm it. That's how you retain sovereignty.
Sibal: It was temporary on 25th Jan 1950. Let's forget about anything else. It is temporary. Why? Because the constituent assembly chose to so it's temporary. So there is nothing wrong with that heading.
CJI DY Chandrachud: Brother Khanna's reading is that it would include (c) but exclude (a) and (b).
Sibal: That cannot be.
Justice Khanna: It will. Otherwise, it will lead to a situation you're saying that 370 is a permanent article which cannot be undone even with concurrence.