New Delhi: Chief Justice of India (CJI) D Y Chandrachud has said a Brexit-type referendum cannot be envisaged in India, responding to petitioners in the Article 370 case who said it was read down through a series of “executive acts” without considering the will of the people of Jammu and Kashmir.
Hearing the case for the third day on August 8, the CJI said that in a constitutional democracy such as India, public opinion is sought through established institutions such as parliament.
“Any recourse to public opinion has to be sought through established institutions. You cannot envisage a Brexit-type referendum… That was a political decision taken by the then government in the UK… But within a constitution like ours, there is no question of a referendum,” The Hindu quoted CJI Chandrachud as saying.
Appearing on behalf of the petitioners, senior advocate Kapil Sibal had accused the Union government of reading down the Article “unilaterally” without making an effort to understand the will of the people of Jammu and Kashmir.
“When you want to sever such a special relationship with Jammu and Kashmir, you have to ultimately seek the opinion of the people. The will of the people was central to this decision. It should have been a political decision… What happened in Brexit? There was no constitutional provision for a referendum. Yet, they asked for public opinion,” Sibal had argued.
He then went on to say that the Article was abrogated through a series of “executive acts”, beginning with the dissolution of the Jammu and Kashmir Legislative Assembly and the state government. Subsequently, the President’s rule was imposed in the erstwhile state and a proviso to Article 370 (3) was tweaked to “sidestep the pre-condition of getting the recommendation of the now defunct Jammu and Kashmir Constituent Assembly before declaring Article 370 inoperative”, the newspaper reported Sibal as saying.
“You [Indian government] played a fraud on the constitution,” he declared. While asserting that such a move required the consent of the state and its people, Sibal argued that the relationship between the Union government and the state of Jammu and Kashmir was “purely federal” and not “quasi-federal” like the other states.
During the courtroom exchange, the CJI also asked the petitioners how it could be assumed that Article 370 had assumed a permanent character in the constitution.
“Was a constitutional amendment, required in the Indian Constitution to drop the ‘temporary’ nature of 370 and make it permanent or can it be deemed permanent merely on the basis that the Jammu and Kashmir Constituent Assembly did not abrogate it before dissolving in 1957?” the CJI asked.