If argument that Article 370 became permanent in 1957 is accepted, will it not become like Basic Structure? Supreme Court asks

If it is accepted that Article 370 of the Constitution became permanent when the constituent assembly of Jammu and Kashmir was dissolved in 1957, will the provision not become like basic structure of the Constitution, the Supreme Court queried on Thursday [In Re Article 370 of the Constitution]..The Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant posed the question while hearing the petitions challenging the abrogation of Article 370 of the Constitution.Senior Advocate Kapil Sibal, appearing for National Conference leader Mohammad Akbar Lone, told the Court that as per clause 3 of Article 370, the said Article can be repealed only on the recommendation of the constituent assembly of J&K.Since the constituent assembly was dissolved in 1957, the Article became permanent, it was submitted."Status quo cannot be changed once constituent assembly comes to an end," Sibal said. "But then does it become like the basic structure," asked CJI DY Chandrachud.Sibal emphasised that while parliament works within the four corners of the Constitution, a constituent assembly works in the absence of one and is, therefore, not bound by anything."So parliament cannot convert itself into the constituent assembly. If this is allowed then one day the constituent assembly will breach the basic structure. I am not worried about this case, [but] what about the future of the country then if this is allowed? This is the genesis of the politics of the day which defines what kind of constitution we want."The CJI responded saying,"But to completely divorce the power of amendment from the political power of amending is also not proper. The constituent power of parliament to amend the Constitution is a political power."Sibal replied that a legislative assembly cannot be converted into a constituent assembly because the intent of the legislature can be partisan, but that is not the case for the constituent assemblyToday was the second day of the hearing in the case. The matter is being heard nearly four years after the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).The erstwhile State was subsequently bifurcated into two Union Territories.The Union Home Ministry recently filed an affidavit before the Court stating that after the abrogation of Article 370, Jammu and Kashmir has witnessed unprecedented stability and progress, with stone pelting and school closures becoming a thing of the past..Sibal today contended that the process followed by the Central government in abrogating Article 370 was fraught with illegalities and the then Governor of J&K acted in tandem with the Central government to toss out the Article. "The Governor did not want to wait for a single day, immediately on the next day, he dissolved the assembly. The PDP faxed the Governor that they have support of National Conference party and would form the government. But the Governor says he was in Jammu and the fax was sent to Srinagar. So he goes ahead and dissolves the legislative assembly."The CJI then asked if these acts took place without the aid and advice of the council of ministers to which Sibal replied in the affirmative. "This was a pure political act. Governor and government was acting in tandem to toss out Article 370. [The suspension was] a mosaic of illegalities," he submitted. The CJI then said that there was no specific challenge on that front, but added that the erstwhile State's boundaries had been changed though the State government's consent was needed for the same.The hearing today also saw discussion around the scope of clause (d) of Article 370(1). The same reads: Notwithstanding anything contained in this [Indian] Constitution,—(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.The CJI then asked Sibal about the President taking decisions without consultation or concurrence with the J&K government."I was wondering what (d) says is if president is making exception or modification to application of constitution to J&K you need a consultation or concurrence.. but what happens if he is not making consultation or concurrence at all. What happens then? Then do you require it in terms of clause (d)? If it is a limiting clause, then power of parliament to legislate is traceable elsewhere".Justice Kaul weighed in saying, "It is a double limitation. What has it limited to? To matters in the Union and concurrent lists. The second part is, which is in consultation with the State government, and then it is for that part of union and concurrent list which forms part of instrument of accession. For those Parliament can legislate."Sibal argued that it lays out the contours within which parliament can enact laws for J&K.The CJI then opined that there were two possible interpretations to the clause.."One is that clause (d) refers to the President making exception and modifications (when applying provisions of the Constitution to J&K), and if it is a subject under clause b(1) subject then it requires consultation (with the J&K government) and if it is beyond clause b(1) subject, then you need concurrence (of the J&K government). The other interpretation is if you make any (Constitutional) provision applicable to Jammu & Kashmir and not (merely) exception or modification, then also it needs consultation and concurrence. Now we have to see which is the correct approach," he said.Justice Kaul then summed up that the petitioners' case is that Article 370 has become a permanent feature of the Constitution and cannot be abrogated through an incorrect process..The CJI then remarked, "Mr. Sibal, you are correct on one point - that the constitutional practice has been to selectively apply the Constitution to Jammu and Kashmir and not the whole thing. Of course, we will hear the Attorney General on this too." Sibal underscored that the Governor can dissolve the legislative assembly only on the aid and advice of the council of ministers, and the same did not happen in the case of the erstwhile State. He explained the chain of events in this regard."When the Governor dissolved the assembly in November 2018, there was no consultation with the council of ministers. Article 147 of the J&K Constitution Act makes it clear that no legislature can move a bill to amend Article 370 and it was temporary only because constituent assembly was there. There can be no amendment to Article 370. The legislature has no such powers.".Justice Kaul then asked whether the J&K Constitution can give permanency to Article 370.Sibal replied saying, "That is why legislative assembly was converted into constituent assembly (by the parliament) and parliament converted itself into constituent assembly. This is unheard of!"Justice Kaul then asked whether the Constitutional provisions applicable to J&K could not have been amended by the Centre at all. "My argument is that the constituent assembly has exercised its choice and now under what provision of the Constitution can you change that? Under Article 356? How can this be done? This was a political act to achieve some political objective de hors the provisions of the Constitution. Parliament cannot convert itself into a constituent assembly", Sibal replied..Justice Khanna then said that Article 370 has an element of flexibility. "Let us not go into how it was done etc. Whether with consultation or acceptance. When we read Clause 3; at the time when the Constitution was adopted there was no constitution of J&K and there was no constituent assembly. But they knew constituent assembly will come. Why cannot we accept the argument that the constituent assembly for the purpose of the proviso could also be interpreted to include the legislative assembly?" Justice Khanna explained that his question was keeping in mind the fact that parliament could have amended Article 370.Sibal responded by saying that the flexibility was at the instance of the constituent assembly and not parliament."This was not given to the legislature because Article 147 of J&K Constitution says there cannot be any such flexibility at all. It was contemplated by the Constitution makers that there shall be a constituent assembly and that is why it came into existence in 1951. Residuary power is always with the State."Justice Gavai then cited the example of Article 363A (which abolished financial aid and recognition to ertswhile rulers of princely States) and queried whether the will of all the people of J&K is needed for the abrogation."J&K was different; how do you change a constitutional structure? By political act, but that is not the issue before you," Sibal said.Justice Kaul then quipped that while everything is is a political process, the question which the Court has to consider is whether it was constitutional or not. .The hearing will continue on August 8, Tuesday..All documents, written submissions of parties in Article 370 hearing before Supreme Court.Read our detailed coverage of Day 1 of the hearing here and here.[Follow our live-coverage of today's hearing]