Sibal: That is why I said that formation of constituent assembly is a political exercise. Look at making of nation states in europe- large empires like Austria and Hungaria. The break up of the empire led to the formation of the nation state. In India the process was opposite.
Justice Kant: So if Article 370(3) goes then that means that Article 370 can never be abrogated.
Sibal: Yes! That's the whole point. That's our case.
Justice Surya Kant: So sub-article 3 according to you have become non existent. Then how does the very temporary nature of 370 survive?
Sibal: It was temporary because Constituent Assembly was not framed at that time.
Sibal: The article starts by saying "notwithstanding anything in constitution" and 370(3) starts with "notwithstanding anything in the provision".
Justice Khanna: If one looks at Article 370(1)(b), it deals with situation when the government or elected assembly is not in existence. So that appears to be the broad outline of this.
Sibal: You have to see the historical perspective in which they signed the IoA. Noone disputes they're integrated in India but subject to a constitutional provision.
Sibal: The reason is simple- the genesis of this was the fact that in 370 itself it was mentioned that the Constituent Assembly has a role to play in abrogation of 370.
CJI DY Chandrachud: So the accession was complete. Consistent with that, they said that in clause (3), the president would have the right to abrogate 370.
Sibal: On recommendation of the Constituent Assembly.
CJI DY Chandrachud: Acceptance of sovereignty of the dominion of India was complete. They accepted the sovereignty for all intents and purposes. That acceptance was complete but they reserved some rights over certain legislative subjects
Sibal: What was the reason to mention Constituent Assembly in 370 when it was not even in place? They could have said Government of J&K. Why did they include the term constituent assembly in (3) because they knew.