New Delhi: There is no question of a Brexit-like referendum on 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 This was not the case when Article 370 was repealed on August 5, 2019, he said.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 Mohd Akbar Lone, who has challenged the abrogation of Article 370.
"The 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.