Article 370 Case | No Question Of Referendum In Our Constitution, Says Supreme Court When Petitioner Cited Brexit-Referendum [Day 3]

Today, the Supreme Court resumed its hearings in the batch of petitions challenging the dilution of Article 370 of the Constitution of India which stripped the erstwhile state of Jammu and Kashmir (J&K) of its special status. The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant heard arguments raised by Senior Advocate Kapil Sibal, who was appearing for National Conference MP Mohammad Akbar Lone.In today's arguments, Senior Advocate Sibal contended that Article 356 could not be used to bring permanent alterations to the constitutional structure of the Indian constitution in its application to J&K. He submitted that the President's rule was meant to restore democracy and not decimate it. He asked – "Is there a limit to the emergency power? Or is it unlimited? Can emergency be passed to make permanent changes? Can the constituent power be equated with ordinary power effacing the source of their authority? Can constitutional change happen without consultation with the people of J&K despite an express provision in that regard?"This article provides with details of all the arguments raised before the court today. Brexit-type referendum not possible as per our Constitution, says CJISenior Advocate Kapil Sibal commenced his arguments today by referring to the speeches of Constituent Assembly of J&K. Through these speeches, which included the ones made by Sheikh Abdullah, Mir Kasim, and MA Beg, he sought to underline the background and historical context of the accession of J&K with India. He argued that a unilateral executive decision could not change the terms of a relationship which was constitutionally embedded under Article 370. He contended–"An executive act of the Union of India cannot alter unilaterally provisions of the Constitution of India as applicable to the State of J&K including getting rid of the special status given acceded to by the Government of India and the Parliament in enacting Article 370 of the Constitution."At this juncture, Justice Kaul enquired if Sibal was stating that the abrogation of Article 370 was an executive act. Sibal responded in an affirmative and stated that the invocation of Article 356 and amendment of Article 367 were both executive acts through Presidential Orders and that the Parliament came into the picture only when the changes had already been made through executive acts. He argued–"Parliament accorded approval to executive acts which unilaterally changed the constitution as it was applicable to J&K. Could the Union of India have done it?"To this the bench asked–"Is it your case that the Parliament could have done it?"Sibal replied in a negative and said–"No! Not at all. That also I'll answer. Ultimately, this was a political decision taken in the context of the situation prevailing. Right? And the complete abrogation must also be a political decision. Your lordships must remember Brexit. What happened? There was no constitutional provision seeking a referendum. But when you want to severe a relationship, you must seek the opinion of the people. Because people are central to the decision."The CJI said–"In a constitutional democracy, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse of will of people has to be expressed by established constitution. So you cannot envisage a Brexit type referendum. That's a political decision which was taken by the then government. But within a constitution like ours, there is no question of a referendum."Sibal reiterated that the abrogation was a political decision and not a constitutional decision. The CJI then stated that the question that arose was whether the constitution did or did not entrust such authority to abrogate Article 370. Sibal responded–"That's all I'm asking. Can the Union of India in this manner terminate a relationship recognised in Constitution of India?"Can Article 370 Deem Permanency Without Indian Parliament's Express Assent?The argument then shifted to whether the Constituent Assembly of J&K gave any indication of which direction it wanted to head in. Sibal argued that if the Constituent Assembly wanted to abrogate 370, it would have done so. He added that between 1951-57, the assembly could have terminated the essence of Article 370 but chose not to do so. Thus, the proceedings of the Constituent Assembly indicated a reaffirmation of the arrangement under Article 370. To this, CJI asked–"This begs one question - could Article 370, which was envisaged as a temporary provision, be converted into a permanent provision merely by proceedings of J&K assembly? Or was there an act required by the Indian Constitution - in form of constitutional amendment?"Sibal contended that since the Government of India never expressed a contrary opinion throughout, its acquiescence was to be presumed. However, the CJI reiterated his point and asked whether a Parliamentary...

Article 370 Case | No Question Of Referendum In Our Constitution, Says Supreme Court When Petitioner Cited Brexit-Referendum [Day 3]

Padmakshi Sharma

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