Sankarnarayanan: If they made the other choice, the impact on Art 1 would be that Art 1 wouldn't apply to them. That's the danger of recreating a constituent assembly at any point.
Sankarnarayanan: The Constituent Assembly sitting in 1952 is faced with a choice which is provided under 370(3). Which is, you have to decide whether you want to keep 370 alive in some form or jump off the board.
Sankarnarayanan: It appears 370(1) has excluded the possibility of Art 1 and Art 370- being in any way the subject matter of orders under 370(1)(d).
Sankarnarayanan: On this point, the question I ask is that 370(3) provides "Notwithstanding anything in the foregoing provisions of this Article". That segues with what CJI said. What was the need for these words? What provisions were standing in the way of 370(3)?
CJI: These were, in that sense, pro-tem provisions until further actions could be taken.
CJI: We followed the experience of the COs. GOI could get the work of the govt done, J&K could have beneficial provisions apply to them...this seems to have been a very convenient procedure - having COs to apply the constitution to J&K and progressively bring J&K into mainstream
CJI: Your argument could be that once after the Constituent Assembly arrived at the understanding, something further was to be left to the Indian Constitution.
CJI: During that period, when other provisions could be modified, it was made clear that Art 1 could not be modified. This is a clear indicator of the fact that 370 was never intended to be permanent.
CJI: Art 1 is a permanent feature of the Constitution. Why did Art 370(1) contain a specific reference that A 1 applies? Reason was that during that interim period when there was a power to modify provisions related to IoA, Art 1 could also have been modified with concurrence.
Sankarnarayanan: Suppose you have some government at the Centre which has a sympathy for secession and say that we will artificially create an assembly to be treated as a Constituent Assembly and they will take the decision on whether 370(3) can be utilised to abrogate 370.