Sibal: I'll show that. It's a part of the Constitution of J&K.
CJI DY Chandrachud: What happens when the Maharaja is replaced by an elected government in J&K?
Sibal: Then the elected govt on aid and advice of council of ministers...
CJI DY Chandrachud: Where does it say that?
CJI: Explanation to (b) contains an exhaustive definition of what is meant by Government of the State. It doesn't include the Maharaja. It says, Government of the State means the person for the time being recognised by the President as the Maharaja.
Sr Adv Gopal S: Article 370 is in three parts- the first part, our argument is, continues, always. Second part is transitory - because it deals with what happens before the Constituent Assembly comes in. Third part is temporary, while Constituent Assembly was there
Sibal: They chose not to. And you'll see in the Constitution of J&K why.
Justice Kaul: Noone is arguing that 370 was not there. Only issue is- whether it acquires a permanent character which cannot be touched or whether there is a methodology to abrogate 370.
Sibal: Remember that the 1954 order came when the Constituent Assembly was there. They had a choice. They could have said no, we wish to abrogate 370 and be part of India like any other state. The assembly was constituted in 1951.
Sibal: Now we move on to what happened in 1957 when the Constituent Assembly drafted this Constitution (of J&K) and was adopted.
CJI DY Chandrachud: Clause (d) is susceptible to two interpretations. But the constitutional practice supports what you're saying. Of course we will hear the AG on that.
CJI DY Chandrachud: Mr Sibal, you're right that the constitutional practice which was followed since the adaptation orders proceeds on the basis that government selectively applied provisions of the Constitution to J&K. They never treated it as all if provisions apply.
Sibal: Your lordships will also have to look at the Constitution of J&K because that Constitution was framed and cleared in 1957.