Sibal: I agree, we are not saying that we can't amend. When parliament amends, it's not converting itself in a Constituent Assembly. And it's bound by constitution.
CJI: Constituent Assembly is untrammelled, as if it's operating on a clean slate.
Sibal: So you have provisions dealing with minorities, reservations, SC/ST etc- that's a political process. That's why our constitution is what it is today. Here it was an amalgamation of colours to be united as one- that is the tiranga.
CJI DY Chandrachud: But equally, to completely divorce the power of amendment from the political process inherent in the amending power would not be appropriate. Because there's no strict dichotomy between that...
Sibal: It's the genesis of the politics of day which determines what kind of constitution we want. Which is why we talk about minorities, diversity etc in our constitution. What were we faced with in 1947? A situation where diverse communities, races, religions came together.
Sibal: Constituent Assembly is a political process. It's a political process in the context of aspirations of all those participating in the constituent assembly. How do you meet the aspirations of diff segments, what provisions should be put in place.
Sibal: The point I'm making is a fundamental point which affects the future of our country. If you in principle say, that a parliament can convert itself in a constituent assembly, then where do we go? Forget about this case. I'm far more worried about our future.
Sibal: See the danger of this argument. Tomorrow the parliament says that we're the constituent assembly. They can do away with basic structure.
Justice Gavai: Dr Ambedkar, while presenting the final draft, also touched on this point.
CJI DY Chandrachud: Even when parliament amends a constitution, it's not exercising powers of a constituent assembly. It may be exercising a constituent power- the power to amend. But the power is restricted and you're subservient to the constitution.
Sibal: A constituent assembly can do what it likes till such time a Constitution is made. At no point in time in law, can a legislative assembly be converted into a constituent assembly- as a matter of law.
Sibal: There is a clear distinction between the exercise of constituent power and the exercise of legislative power. Parliament while enacting a law, functions within the contours of the Constitution. Constituent Assembly has no Constitution in place.
Sibal: This was a political act to achieve a political purpose, de hors the Constitution.