Dave: Then let it all perish.
CJI: What about the fact that it was applied from 1958 to 2018?
CJI: If 370(1) survives then it'd be very difficult to say that 370(3) ceases to exist. There has to be a logical consistency on how you interpret...it has to be in tandem. Either everything remains or everything perishes together.
Dave: Same way, 370(2) has also lived its purpose. 370(1) continues, your lordships are right. 370(1) is alive. Can you repeal it? That's the question.
Dave: For a moment, see 370(3) independently of 370(1). 370(2) has lived its purpose now and that is dead.
CJI: If the power under proviso of (3) has exhausted itself then equally, the power under the two provisos of clause (b) has exhausted itself. In which case how do we explain the exercise of that power over 64 years?
CJI: We are talking of practice of 64 years.
Dave: After 64 years you can repeal it? With great respect, it means that 370(3) can't be repealed so you continue it.
Dave: They have applied all provisions of constitution by 1954 so really speaking, there is nothing is left to be done.
CJI: But then how do we explain that there were subsequent amendments?
CJI: But then would the power of the state government to grant its concurrence under second proviso to clause (d) continue to operate once the Constituent Assembly completed its task in 1957? Or would that power be exhausted?
Dave (reading Art 370(2)): "If the concurrence of the State be given BEFORE the Constituent Assembly is convened..." It is purely limited. Before! This is temporary within temporary.
CJI: This is belied not merely by constitutional practice but the acceptance by both the state of J&K and GOI that amendments were being made by the constitution even after 1957 and until the disputed amendment of 2019.