Article 370 Case : Live Updates From Supreme Court Hearing [Day 3]

Sibal: Now it had to be on recommendation of Constituent Assembly, so it had to be a temporary provision. It was temporary because there was nothing in place, not because this provision had to go.

Sibal: Parliament incorporated provision of Constituent Assembly. Why? There was no Constituent Assembly in place, only a national assembly. This must have happened in collaboration in J&K.

Justice Gavai: Where does it say that (3) will not apply? It only says three choices are provided...where does it specifically say that?

Sibal: Let's go back to 1950, 26th of Jan.

Sibal: But that's what it says- Constituent Assembly gives the recommendation for it.

CJI: Another problem would be that then we would be redrafting the substantive part of clause (3) to postulate that the power under clause (3) can be exercised so long as the Constituent Assembly is in existence. In which case, would the proviso not swallow the main provision?

Sibal: Clause (3) comes on the recommendation of Constituent Assembly, not the other way round. You can't even initiate a bill.

Justice Khanna: The issue is whether 368 can amend 370?

CJI: Once we assume that parliament can, any amendment of 370 would be subject to criticism on the ground of morality, but not power.

CJI: So according to you the power is completely lost once the J&K constituent assembly comes to an end.

Sibal: Let me not even go that far. I'll assume that there is some power available - it may be 368

CJI: 370(3) itself provides the conditions under which abrogation can take place.

Sibal: Which is that it must be on the recommendation of Constituent Assembly.

CJI: 370 provides for a modality through which 370 itself would come to an end...

Sibal: That modality cannot be to convert a legislative assembly and Constituent Assembly. We have to find a modality in the Constitution, not outside of it.