There is no question of a Brexit-like referendum on the abrogation of Article 370 in Jammu and Kashmir, the Supreme Court said on Tuesday, as it grappled with the question as to whether its repeal was constitutionally legal.
India, it said, is a constitutional democracy where the will of its people can be ascertained only through established institutions.
Brexit was the name given to the United Kingdom's departure from the European Union. Britain's exit from the EU was actuated by a rise in nationalistic fervour, daunting immigration issues, and a distressed economy.
The remark by the five-judge bench headed by Chief Justice DY Chandrachud came following the submission by senior advocate Kapil Sibal that the abrogation of Article 370 of the Constitution, which accorded special status to the erstwhile state of Jammu and Kashmir, was a political act like Brexit where the opinion of British citizens was elicited through a referendum. This was not the case when Article 370 was repealed on August 5, 2019, he said.
Sibal was appearing for National Conference leader Mohammed Akbar Lone, who has challenged the abrogation of Article 370.
”Parliament accorded its approval to the executive act to unilaterally change the provision of the Constitution as applicable to Jammu and Kashmir. That's the central question this court has to decide, whether the Union of India could do it,” he said.
Sibal has repeatedly questioned Parliament's power to abrogate Article 370 in the absence of the constituent assembly of Jammu and Kashmir.
He has persistently maintained that only the constituent assembly, whose term expired in 1957, was vested with the power to recommend repeal or modification of Article 370, and since it ceased to exist after 1957, the constitutional provision according special status to J&K, assumed a permanent character.
During the third day of the hearing on the pleas challenging the Centre's August 2019 decision, Sibal repeated his contention before the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.
”This court will remember Brexit. In Brexit, there was no constitutional provision (in England) seeking a referendum. But, when you want to sever a relationship which has been entered into, you must ultimately seek the opinion of the people because people are at the centre of this decision, not the Union of India,” Sibal asserted.
CJI Chandrachud was, however, not impressed.
”In a constitutional democracy, seeking the opinion of people has to be done through established institutions. So long as a democracy exists as it does, in terms of constitutional democracy, any recourse to the will of the people has to be expressed and sought through established institutions. You cannot therefore envisage a situation like Brexit type referendum,” he told Sibal.
He concurred with Sibal's view that Brexit was a political decision but said, ”Within a Constitution like us there is no question of referendum.”
Sibal said the repeal was a political decision taken unilaterally by the executive and it cannot be called a decision that was in consonance with the Constitution.
Sibal, who argued through the day, said whether Article 370 was a temporary or permanent provision does not matter now. He said the ultimate question is whether the Union of India can terminate that relationship which was constitutionally recognised under Article 370.
”It is irrelevant. Temporary or permanent does not matter. The manner it was done is a fraud upon the Constitution. It is a politically motivated act. Executive orders are political acts not constitutional acts. Permanent or temporary at the moment is not the issue.
"The reason why I am saying this is because maybe there is a constitutional way of doing it. Though I am not addressing that (issue) nor have they (Centre) resorted to constitutional methodology. If they resort to it, it will be tested in the court of law," Sibal said.
Sibal has been insisting that Parliament could not have assumed the role of the constituent assembly to repeal Article 370.
He questioned the Centre's decision of dividing the erstwhile state of Jammu and Kashmir into two Union Territories and said the Constitution did not allow it.
”You cannot divide Madhya Pradesh or Bihar into two Union territories. This is a representative form of democracy. In this case, where are the voices of people of Jammu and Kashmir? Where is the voice of representative democracy? Five years have passed... have you had any form of representative democracy? This way the whole of India can be converted into Union territories,” he said.
Sibal said though the Constitution is a political document, one cannot manoeuvre or manipulate it as courts are not silent.
”That's not how you interpret a Constitution. It is a political document but you cannot misuse it politically. What is a Constitution? It's a set of values. Values on the basis of which people will represent themselves and their voice will be heard. If you do such executive acts and silence the voices of people, what is left of democracy?
"All I can say is that this is the historic moment, historic not for the present but for the future of India. And I hope this court is not silent,” Sibal said while concluding his arguments.
The hearing remained inconclusive and will continue on Wednesday when senior advocate Gopal Subramanian will advance his arguments for the petitioners.
Several petitions challenging the abrogation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two Union territories -- Jammu and Kashmir, and Ladakh -- were referred to a Constitution bench in 2019.
