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 CJI

Senior 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 intervention to convert a temporary provision into a permanent provision was not necessary. Sibal responded by stating–

"Let's assume it is amendable? How will it be amended? The constitution must provide a solution."

What You Cannot Do Directly, You Cannot Do Indirectly

In his next limb of arguments, Sibal, underlined that the 2019 Constitution Order stated that "the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the "Governor of Jammu and Kashmir". Here, he highlighted that there existed no council of ministers, as the State was under Presidential Rule and its assembly was dissolved at the relevant time. Thus, the Union had created a 'constitutional myth' and assumed in the absence of council of ministers that there was a council of ministers. He added–

"Then you pass a Presidential Order that even in absence of council of ministers, the governor is acting on its aid and advice. What kind of executive exercise is this? This is a mockery. Which is why I've been saying it is a political act, not a constitutional act. I don't think in any constitutional democracy this has happened."

He added that the powers under Article 356 (which imposes President's rule in a State) could not be exercised by the Parliament, the Government, or the President in a fashion independent of Article 367. He said that this was because the Parliament was only acting as legislature and had no power as executive. Further, the executive was only dealing with administration and it could not amend. Sibal added–

"See the consequence of this- that through an executive order, you can change any provisions of the Constitution because you have majority. This majoritarian culture cannot destroy the edifice of what our forefathers gave us. They cannot possibly justify it. Unless a new jurisprudence comes to light that they can do whatever they like as long as they have majority..."

Arguing that except for land laws and personal laws, most Indian laws were already applicable in J&K, Sibal contended that "there was no need for any of this, except for the objective of sending a political message that we have done away with 370."

SG Mehta interjected and said–

"After 2019 exercise, approximately 1200 laws are now applicable...all beneficial legislations available to other citizens now are available to J&K". Sibal countered this submission by saying that all Indian laws were even otherwise applicable to J&K, though under different names.

During his arguments, Sibal also contended that Article 367 was an 'interpretation clause' and not a 'substitution clause'. Thus, the Union could not have used the Article to substitute the meaning of 'constituent assembly' with 'legislative assembly' so as to abrogate Article 370. Seeking clarity on this submission, CJI asked–

"Why was amending 367 necessary?"

To this, Sibal responded–

"Because they themselves gave the power of the legislative assembly which they were exercising in 356 as the Constituent Assembly and recommend. They were ad idem with my interpretation that you need recommendation of Constituent Assembly."

He added that such substitution of the Constituent Assembly could not have been permitted as "what you can't do directly, you can't do indirectly."

Principles To Interpret 2019 Orders

Sibal submitted three principles which he stated were necessary to interpret the Presidential Orders of 2019.

1. The clear language of these provisions, in its structural and historical context, ought to be given effect. One cannot find ambiguity when none exists.

2. If there is a textual ambiguity or possibility of another interpretation, the court should not be adrift in a sea of pragmatism. An interpretation that is more consistent with our constitutional values, namely, representative democracy, federalism, and constitutional morality should be preferred. That will ensure the smooth and harmonious functioning of the Constitution.

3. Any power vested by or under the Constitution is in essence a limited power. There is no unlimited power vested in any institution or provision of constitution. It is limited at the point in time when it is exercised and is limited by core constitutional principles and values. Therefore, it must be exercised in accordance with the same.

He added–

"The power under 370(1)(d) does not extend to abrogating 370 by applying those three principles. The power under 356 doesn't extend to making non restorative permanent alterations to the State's constitutional status."

Can Article 356 Be Used To Bring Permanent Changes To Constitutional Structure?

Senior Advocate Sibal then voiced apprehensions regarding the misuse of Article 356 and the constitutional implications of the changes introduced in relation to J&K. Speaking passionately before the court, Sibal questioned whether constitutional changes can be made without adequate consultation with the people of J&K, despite an explicit provision requiring such consultation. 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?"

He then contended that the alterations to Indian constitutional structure, as applicable to J&K through the exercise of majoritarian power have pushed the boundaries of democratic and federal principles. He underscored the historical misuse of Article 356 and emphasized that this provision was never intended to be exploited in the manner witnessed in J&K. 

"Time and again in the history of this country 356 has been misused. That was never the intent. And now in changing the structure of this constitution, in its application to J&K, it has crossed all boundaries.  Where are the steps for restoration of democracy? In fact, the steps are for the reversal- destruction of democracy. People are not taken into account, their views are not taken into account. You give yourself the power of state, legislature. Parliament becomes the spokesperson of the people of J&K. And if you express the wishes of the J&K through parliament when the constitution requires you to take views of the State. Everything done under 356 is contrary to the basic principles of both federalism and democracy and to the principle of constitutional morality. 356 is not meant for this purpose," he said.

He then invoked the doctrine of proportionality, emphasizing that under normal circumstances, dissolution of an assembly would follow a carefully structured process involving attempts to form a government and the exercise of President's rule only as a last resort. He highlighted that the prolonged absence of representative democracy in J&K raises significant constitutional and moral questions. He submitted–

"When did you dissolve the assembly? 21st November 2018. And we are where? In August 2023. Was that meant to be under 356? So see what they did - they knew that the council of ministers would never advice the governor to dissolve. So he dissolved it on his own. Then the governor imposed 356, took over powers. Ultimately, you are a delegate. 356 delegates you the power of legislature. You're not an omnipresent omnipotent authority to do what you like. You're a delegate. What the primary institution cannot do, the delegate cannot do."

Concluding his arguments, Sibal said–

"We stand at a situation where though the constitution is a political document, its provisions cannot be manipulated or manoeuvred for political ends. That's not how interpret a constitution. It is a political document but you can misuse it politically. What is a Constitution? It is a set of values. Values on the basis of which people will represent themselves and their voice will be heard. If you threw such executive acts, silenced the voices of people, what is left of democracy? All I can say it 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."

In his arguments, Sibal also stated that a State could never be reduced to a Union Territory. 

Also Read - Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation