SG Mehta: The Constitution of J&K will always be subordinate to Indian Constitution because the J&K Constituent Assembly's very creation was by Article 370.
SG Mehta: What is mandatory is that you take recommendation. But the recommendation is not binding. Otherwise the constitution would have said, act accordingly.
CJI: That cannot be correct because so long as the Constituent Assembly- it was not recommendatory. Look at the way the Article is made - "recommendation...shall be necessary".
SG Mehta: Even if the Constituent Assembly had been in existence, the limited roles stipulated...that I've already said is only recommendatory and president could have taken any other decision.
SG Mehta: If the proviso becomes otiose, the main condition doesn't become otiose. The conditionality goes
SG Mehta: This is the only provision that has a self destructive clause. This shows it was intended to be temporary.
SG Mehta: This is the only provision in the Constitution where application of constitution and application of central laws including beneficial legislations is dependent on concurrence of state govt. Such a drastic provision cannot be perennial.
SG Mehta: Impact of Art 370 was to deprive the residents of J&K and Ladakh from being treated at par with their fellow citizens. This is also a suggestive indicators that framers didn't intend for it to be permanent.
SG Mehta: Look at the width of the power. Two individuals, two organs- President and state govt can alter any part of the Constitution and apply it to one part, can delete any constitutional provision, can create a new provision.
SG Mehta: Considering the legislative expanse of this provision, the constitution makers could have never wanted for this to remain forever.
SG Mehta: It is contained in Part XXI- temporary, special, transitory provisions. So constitution framers are aware of what words they're using.