Dwivedi : When the Constituent Assembly itself is not there, how can the power (to abrogate special statues) be exercised ?
Dwivedi : When the Constituent Assembly(for JK) has met and taken its decisions both on the Constitution of the State and the range of federal jurisdiction of the State, the President may then issue an order(for ceasing Art 370) only on the recommendation of the CA.
Dwivedi : The provision was temporary because the Constituent Assembly (for JK) was not there and the functioning could not be impaired.
Dwivedi : Ar 370 (2) allows for concurrence. The idea is that even before the CA meets that it is in the interest of both the Centre and the State that the subjects are added in the IOA. Does this not indicate that the concurrence was only for the interregnum till the CA came into being?
Dwivedi : Legislative power over the State are given in the IOA. Specifically defence, communication and external affairs. The ancillary entries were brought in by the Government of India Act.
The 1950 Order, the first order, it allowed for consultation on these matters by the President with the State.
Arguments resume.
Dwivedi : The will of the people through the institution of the Constituent Assembly was in question. That’s why 370 refers to power of Parliament and not of the State.
Reading out the debates yet again, DD states that 26.10.1947 is when the accession took place.
Maulana Hazrat in Constituent Assembly asked why this discrimination was taking place.
Gopal Swami Iyengar provided an interesting explanation to this by stating that the integration could not take place at that time.
My grievance with Sampath Kumar is that it does not analyse 370, or the Constituent Assembly debates or the 1959 SC which is a CB and corroborated what is said in the debates.
Once the Constituent Assembly ceases to exist, the powers under Articles 370 (2) and (3) become otiose : Dwivedi.
Dwivedi states that the Constitution of J&K holds the power to amend the Constitution of J&K. Not the Constitution of India. There should be functioning along the principle of “Live and Let Live”.