No question of Brexit-like referendum on abrogation of Article 370: SC

The Supreme Court on Tuesday said that there is no question of referendum in a constitutional democracy like India as seeking the opinion of people has to be through established institutions only.

A five-judge Constitution Bench of Chief Justice of India D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, told senior advocate Kapil Sibal, "You cannot envisage a situation like Brexit. That is a political decision which was taken by the then government. But within a Constitution like ours, there is no question of a referendum."

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 This was not the case when Article 370 was repealed on August 5, 2019, he said.

The court was hearing a batch of petitions challenging the dilution of Article 370 of the Constitution, which removed the special status granted to the erstwhile state of Jammu and Kashmir.

Sibal also asked if the Union can change the status of a state without consulting the people. "They cannot do whatever they like if they have a majority," he said.

"Where is the voice of people of Jammu & Kashmir? Where is the voice of representative government. Five years have passed, you do not take consent, you don't even take their views. Where do we stand? The Constitution is a political document, but you cannot politically misuse and maneuver it," he said.

Sibal further said that he hoped the court would not remain silent. He submitted that the relationship between the Union and Jammu and Kashmir was purely federal, and not quasi federal like other states.

He accused the Union government of playing fraud upon the Constitution by tweaking Article 370(3) and sidestepping the precondition of getting recommendation of now defunct Jammu and Kashmir constituent assembly before declaring Article 370 inoperative.

Arguing on the third day of the hearing, Sibal on behalf of National Conference leader Mohd. Akbar Lone, contended that the abrogation was a political decision and that the opinion of the J&K people should have been sought. 

He said to sever a relationship, one must seek the opinion of the people because people are central to the decision.

On this, the bench said in a constitutional democracy, seeking opinion of the people has to be done through established institutions and as long as democracy exists, any recourse of will of people has to be expressed by established institutions. 

Sibal said constituent assembly proceedings were essential in determining whether Article 370 was intended to be a temporary measure. 

He once again claimed that the abrogation was a political decision, not a constitutional one. 

"But then the question is whether the constitution does or does not entrust that authority," the bench said.

Sibal insisted that the abrogation was a political act and whether Article 370 is a temporary provision or not is not an issue, and the opinion of the J&K people should have been sought.

The bench then asked whether Article 370, which was envisaged as a temporary provision, can be converted into a permanent provision merely by proceedings of the Jammu and Kashmir assembly.

The court asked Sibal if there was an act required by the Constitution, which is in either in the form of a constitutional amendment or so.

During the hearing, the bench also sought to know from Sibal, if it is his argument that proceedings of constituent assembly would indicate a reaffirmation of the arrangement under Article 370 as a long-term arrangement. Sibal replied in affirmative.

Sibal also stressed that one cannot decimate the provisions of the Constitution by an executive act.