Sibal: It's not just the question of application. It's the question of substantive understanding of what 370 is.
Sibal: You're now to apply provisions of the Constitution of India. And they're all incorporated in the order. So 356 comes there, Part III, Preamble, DPSPs- come there but that's all with concurrence. Therefore, it didn't come at this stage. That came later.
Sibal: First schedule deals with entries and this deals with (d).
Sibal: "In addition to the provisions of Art 1 and 370, the only other provisions of the Constitution which shall apply shall be those specified in the second schedule..."- This is applicable to (d).
Sibal refers to the Constitution (Application to Jammu and Kashmir) Order, 1950.
Sibal: Kindly see the index of this. This will show you the kind of orders passed from time to time. By this time there are about 54 orders.
CJI: No, in the sense that a marginal note doesn't control the meaning of the text.
Sibal: 370(1)(c) or Art 3, can't! A marginal note cannot say that it is temporary so I read this in this fashion. That can't be done.
Sibal: It's only a marginal note, not the heading of 370.
CJI DY Chandrachud: No doubt about that.
Sibal: Your lordships have held in Keshavananda Bharati itself that you can't look at these notes.
Sibal: 370 can't be touched. All other things can be.
Justice Khanna: (c) doesn't say 370 cannot be touched! In fact, it makes it very clear that it can be touched.
CJI: The other interpretation is that even if you're not making any exception or modification, but you're making some provision of the Constitution applicable to the State of J&K, you still require consultation or concurrence.
CJI DY Chandrachud: The question is which is the most plausible construction?
CJI: If it relates to something other than a (b)(i) subject, you require concurrence of the State. So it's only where you're making exceptions or modifications to the Constitution that you require either consultation or concurrence.