Justice Kaul: Constitution is also a live document. It's not static. Can you say that there is no mechanism to change it even when everyone wants to change it? Then you're saying that this can't be changed even if all of Kashmir wants it.
Justice Kaul: What you're saying that while other provisions of the Constitution may be capable of amendment through a process, other than ones against basic structure, this is one provision which can never be amended.
Sibal: Let's put it this way- under which power will they do it?
Sibal: No process can be followed to abrogate it. At that time it was temporary because there was nothing in place.
CJI DY Chandrachud: We see what process they followed. What according to you would be the right process to do it?
Sibal: No process! Because the Constitution of J&K says that no such bill can be introduced in the legislature.
CJI: By them!
CJI DY Chandrachud: How would you then put into place the constitutional machinery? It cannot be that because there is no constituent assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Art 370.
Sibal: Parliament included a provision for J&K. It's not an isolated act. It happened in consultation with the Maharaja.
CJI DY Chandrachud: How would that happen post 1957 India?
Sibal: When the constitution was framed, there was a dialogue between the Maharaja and constitution makers. Both decided to put it in. You must understand the historic context. It didn't happen in isolation.
CJI: Before elections were held, by adult suffrage they composed the constituent assembly. Your argument is that what is to be done by constituent assembly cannot be done by legislative assembly. What happens when there's no constituent assembly? Do you create a fresh one?
Sibal: It was contemplated by the Constitution makers that there would be a constituent assembly and that is what happened in 1951.
CJI DY Chandrachud: Where's the first reference to the Constituent Assembly, prior to the Indian Constitution? I find that in the proclamation of the Maharaja.
Sibal: It can be found in the constituent assembly debates.