Brexit-like referendum on Article 370 is out of question, says Supreme Court

A Brexit-like referendum on the abrogation of Article 370 in Jammu and Kashmir is out of the question, the Supreme Court said on Tuesday, reported PTI.

Brexit refers to the process by which the United Kingdom withdrew from the European Union, with the support of 52% of voters in a referendum conducted in 2016. Britain officially left the bloc in January 2020.

A five-judge bench headed by Chief Justice DY Chandrachud is hearing over 20 petitions challenging the Modi government’s decisions to cancel Jammu and Kashmir’s special status and split the erstwhile state into two Union Territories in 2019.

On Tuesday, Senior Advocate Kapil Sibal said that the abrogation of Article 370 of the Constitution, which had given Jammu and Kashmir special status, was a political act like Brexit.

“In Brexit, there was no constitutional provision seeking a referendum,” Sibal argued. “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.”

However, Chief Justice Chandrachud said that India is a constitutional democracy where the will of its people can be ascertained only through established institutions. “You cannot, therefore, envisage a situation like a Brexit-type referendum,” he remarked.

During the hearing, Sibal asserted that the Centre’s decision to strip Jammu and Kashmir of autonomy was unconstitutional.

“You cannot divide Madhya Pradesh or Bihar into two Union Territories,” he said. “This is a representative form of democracy. In this case, where are the voices of the people of Jammu and Kashmir? Where is the voice of representative democracy?”

He added: “Five years have passed…have you [the Centre] had any form of representative democracy? This way the whole of India can be converted into Union Territories.”

Sibal also argued that whether Article 370 was a temporary or permanent provision was irrelevant, according to PTI.

“The manner it was done is a fraud upon the Constitution,” he said. “It is a politically motivated act. Executive orders are political acts, not constitutional acts. Permanent or temporary at the moment is not the issue.”