There is no question of a Brexit-like referendum on the scrapping of Article 370 in Jammu and Kashmir, the Supreme Court said on Tuesday, as it grappled with the question whether it was constitutionally legal. India, it said, is a constitutional democracy where the will of its people can be ascertained only through established institutions.
UK's departure from the European Union -- actuated by a rise in nationalistic fervour, daunting immigration issues, and a distressed economy -- was dubbed Brexit.
The remark by the five-judge bench headed by Chief Justice DY Chandrachud came in response to senior advocate Kapil Sibal's argument that the scrapping of Article 370 -- 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 sought through a referendum.
This was not the case when Article 370 was repealed on August 5, 2019, he said.
Mr Sibal was representing National Conference leader Mohd Akbar Lone, who has challenged the scrapping of Article 370. "Parliament accorded its approval to the executive act... this court has to decide whether the Union of India could do it," he said.
Mr Sibal has repeatedly questioned parliament's power to scrap Article 370 in the absence of the constituent assembly of Jammu and Kashmir. 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, he has argued.
"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," Mr Sibal said.
During the third-day of the hearing on the pleas challenging the Centre's decision, Mr Sibal repeated his contention before the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant. Chief Justice Chandrachud was, however, not convinced.
"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 Mr Sibal.
He agreed with Mr Sibal's view that Brexit was a political decision but said, "Within a Constitution like us there is no question of referendum."
The hearing will continue on Wednesday.
