There cannot be referendum like Brexit on Article 370 issue: Supreme Court

In a Constitutional democracy like India, opinion of people on public issues is sought through established institutions and not referendums as it happened in Brexit in the United Kingdom, the Supreme Court said on Tuesday [In Re Article 370 of the Constitution]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant was responding to a submission made by Senior Advocate Kapil Sibal in the case concerning abrogation of Article 370 of the Constitution."When you want to sever a relationship which has been entered into, you must seek the opinion of the people. See what happened in Brexit. A referendum was held," said Sibal.The CJI, however, disagreed and responded by stating, "In a constitutional democracy, seeking the opinion of the people has to be through established institutions. Any recourse to public will has to be through that. You cannot envisage a situation like Brexit. In a constitutional democracy there cannot be anything like a referendum."Sibal maintained that the Central government's move to abrogate Article 370 was a political act, and pointed out that the word 'constituent Assembly' was changed to the 'legislative assembly' in Article 370 to enable the move.Yesterday was the third 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 was appearing for National Conference leader Akbar Lone.He began his submissions yesterday by asking whether constitutional provisions can be deleted by executive action. "Can you decimate the Constitution of India by an executive act? You cannot change the Constitution as applicable to Jammu and Kashmir by changing Article 3. You cannot change legislative assembly to a constituent assembly by an executive act.".The CJI asked whether Article 370 would be deemed permanent merely because the Constituent Assembly of Jammu and Kashmir, which was empowered to recommend the deletion of the provision, ceased to exist in 1957."But can this Article, after the constituent assembly, become unamendable," the CJI remarked.Sibal said that the Constitution will have a solution to that."Article 368 gives the power to amend the Constitution. We have to see if Article 370(3) gives the right to amend it," Justice Khanna said. The CJI then said that if Article 368 can be used to amend all Articles, it will cover 370 as well."Then the argument that there is no power to amend can be a moral argument but not a legal one," he remarked..Sibal further said that that the Central government's powers under Article 3 (on formation of new States and alteration of areas, boundaries or names of existing States) does not extend in effacing the character of a State into a Union Territory. "Can a State be made into a Union Territory by the Union on its own whims and fancies without consulting the people who would be affected? People are not taken into account. The views are not taken into account. Parliament becomes spokesperson for the people of Jammu and Kashmir? The Constitution requires you to take the views of the State. Everything done under Article 356 is against federalism and constitutional democracy and constitutional morality. Where are the steps to restore democracy? Only steps to destroy it," he contended..He added that the Jammu and Kashmir Reorganisation Act and the conversion of Jammu and Kashmir into a Union Territory took away the voice of the people of Jammu and Kashmir. "Where is the representative voice of Jammu and Kashmir? Have we heard them in the last four years? You do away with consent by an executive act. You do not take their views. Where do we stand? Though the Constitution is a political document, but you cannot maneuver or manipulate its provisions for political ends. It is time for this Court to intervene. If the voice of people is silenced by such executive acts then what is the future? This is a historic case, not for the present only, but also for the future. I hope the Court stands up for it," Sibal argued..Senior Advocate Gopal Subramanium, appearing for a petitioner, will begin arguments today..Read our detailed coverage of Day 1 of the hearing here and here.Read our detailed coverage of Day 2 of the hearing here and here..[Follow our live-coverage of today's hearing]