CJI DY Chandrachud: 370(1) makes special provisions in respect to State of J&K. But 370(3) has a non obstante provision which overrides the non obstante clause in clause (1).
Sibal: For that period!
CJI DY Chandrachud: 371 begins with a non-obstante clause. It overrides the entire Constitution but clause 3 contains a non obstante clause which overrides clause 1 as well.
Sibal: Kindly see 369, it continues to operate.
CJI DY Chandrachud: To accept your submission, we will have to postulate that clause 3 becomes a constitutional article. How can that be? Clause 3 still continues to survive. The limitation on clause 3 may cease to operate.
Sibal: Why was this clause put in 1950? Because in 1950 they said that we will have a Constituent Assembly. See the debates it will be made clear.
Justice Kaul: So according to you, after 1957, sub-article 3 has become redundant?
Sibal: Constituent Assembly even in the context of Constitution of India is redundant.
CJI DY Chandrachud: In which case, 370 which is a transitional provision, assumes the character of permanent provision? By virtue of the fact that there is no Constituent Assembly?
Sibal: Absolutely.
Sibal: If you want to abrogate 370, you have to get recommendation of Constituent Assembly.
CJI DY Chandrachud: So long as it exists.
Sibal: This is the point. Constituent Assembly has served its term once it has framed constitution.
Sibal: Kindly see the scheme of 370- on four items- defence, communication, external affairs, and ancillary matters- the consultation of state is necessary. For all other, concurrence is necessary. Can you say you can do away with concurrence?
CJI: If the proviso ceases to operate, by virtue of the fact that the tenure of Constituent Assembly has ceased to exist, surely the substantive part of (3) still continues?