CJI: The fact still remains that after the Constitution of J&K was framed on 26 Jan, 1957, Article 367(4)(d) was again amended to delete clause (d). So that equivalence between constituent and legislative assembly ceases the moment Constitution of J&K is framed.
Jethmalani takes the bench through CO 10 (26 Jan, 1950), CO 39, CO 48 (15 May, 1954).
Jethmalani: In CO 48, for the first time Article 367 was amended in application to J&K. The same procedure was followed.
Jethmalani: On the contrary, the COs issued from 1948 onwards indicate two things - 1. They expressly indicate that Constituent Assembly and Legislative assembly insofar as it applies to Constitution of India are synonymous.
Jethmalani: This doesn't mean that once the Constituent Assembly completed its task- which was the task of framing the constitution, Article 370(3) would have no meaning and it would be otiose.
Jethmalani: All documents from 1948 to 1950- all constitutional documents indicate that a constituent assembly for the purpose of framing a constitution was necessary. Which is why Art 370(3) referred to the Constituent Assembly.
Jethmalani: Unless clearly stated, it would not take away the substantive rights under the provision (Article 370(3)).
Jethmalani: Article 370 is a provision that is a part of the temporary provisions of the Constitution. The title of the Article describes the provision as temporary provisions.
Jethmalani: 147(c) is an acknowledgement by the State of J&K that they cannot touch the constitution of India as applicable to the state of J&K.
Jethmalani: Article 370(3) is indicative of the fact that ultimate legal sovereignty, in the sense that you can get away with the tunnel altogether, that ultimate legal sovereignty rests with the Union of India.
Jethmalani: Legislative sovereignty is divided into the union and the state...the matters in Concurrent and union list acceded to by the then Maharaja are within realm of centre and other parts are within jurisdiction of state.
CJI: So you accept that sovereignty has two connotations- one, external that vests with Union, and internal sovereignty which is then distributed between union and state.
Jethmalani: Yes but constitution envisages that from time to time more Provisions are made applicable