Justice Khanna: The explanation enacted was probably in 1952- which was added in clause (1). At that time there was no legislative assembly. There was no council of ministers.
Sibal: That shouldn't arise. We're talking about powers of constituent assembly.
Sibal: How can you interpret a term in the constitution which says 'constituent assembly' as a legislative assembly. I don't understand. Under what interpretation can we do that? There's no implied or express power. That way we can change any definition.
Justice Khanna: When they made it, there was no legislative assembly. That's a fact. So when we interpret the term here can we interpret it to include legislative assembly?
Sibal: It's not flexibility at the hand of parliament. Because 147 says there is no flexibility at all.
Sibal: They contemplated it. Why else would they add the word "constituent assembly"?
Justice Khanna: Because at that time we didn't have any legislative assembly for the State of J&K
Justice Khanna: The proviso puts a pre-condition.
Sibal: It's a flexibility at the instance of the Constituent Assembly, not at the instance of Parliament.
Justice Khanna: If the objective was not to put Article 370 in a straitjacket, which is obviously clear; it's a flexible article...
Sibal: That has nothing to do with 370(3). There's no flexibility there.
Justice Khanna: Why can't we accept the argument that constituent assembly for the proviso could in a sense be interpreted to include legislative assembly, keeping in mind the fact that the parliament could have very well amended Art 370 also.
Justice Khanna: At the time when the constitution was adopted, there was no constitution of J&K and no constituent assembly but they were aware that constituent assembly will be made. So why can't we interpret the Constitution?
Justice Khanna: There's a slight difference between Art 370 and what is the state and it's object/purpose- one, there is an element of flexibility in Art 370 in the form of consultation or something else.