CJI: There is one inconsistency in accepting that submission. Because if its right, the consequence would be that once the Constituent Assembly completed its task in 1957, there could be no amendment to the constitution at all in application to J&K under 370(2).
CJI: Clause (2) of Art 370 refers to a decision. The proviso to clause (3) uses the word 'recommendation'. The commonality between 370(2) and proviso to 370(3) is some action on part of Constituent Assembly.
CJI: Clause (2) of Art 370 refers to a decision. The proviso to clause (3) uses the word 'recommendation'. The commonality between 370(2) and proviso to 370(3) is some action on part of Constituent Assembly.
Dave: Idea is that you had to decide whether you want this relationship to continue or not. They took that decision.
Dave: 370(3) is only in respect of continuation of 370 or not. The Constituent Assembly agrees that it has to continue. So it becomes a permanent decision.
CJI: But then where is the power to alter the Constitution at all? If your argument is right, once the Constituent Assembly in 1957 takes its decision, there is no power to change any provision of the Constitution in relation to J&K.
Dave: It refers to those decisions taken prior to its constitution. So to that limited extent, Constituent Assembly's approval was sought for. But subsequently once the Constituent Assembly goes...
CJI: This means that Article 370 had continued to operate even thereafter. Therefore, it would not be correct to postulate that Art 370 achieved its life.
CJI DY Chandrachud: Your whole argument is that 370 has worked itself out. But that would be belied by constitutional practice. Because even after 1957, there were orders issued progressively modifying the constitution in relation to J&K.
Dave: That's for 370(1) to extend from time to time any amendments. Because there were many provisions of the Constitution which weren't made available at the time.