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No Question of Brexit-Like Referendum On Article 370, Says Supreme Court

Team SoOLEGAL 10 Aug 2023 4:18pm

No Question of Brexit-Like Referendum On Article 370, Says Supreme Court

New Delhi: The Supreme Court said on Tuesday that there would be no Brexit-style referendum on scrapping Article 370 in Jammu and Kashmir, as it considered whether it was constitutionally legal. It stated that India is a constitutional democracy in which the will of the people can only be ascertained through established institutions.

Brexit refers to the United Kingdom's exit from the European Union, which was precipitated by an increase in nationalistic fervour, daunting immigration issues, and an economic crisis.

The five-judge bench led by Chief Justice DY Chandrachud made the remark in response to senior Advocate Kapil Sibal's argument that repealing Article 370, which granted special status to the erstwhile state of Jammu and Kashmir, was a political act akin to Brexit, in which British citizens' opinions were sought through a referendum.

This was not the case, he said, when Article 370 was repealed on August 5, 2019.

Advocate Sibal was there to represent 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 stated.

Advocate Sibal has constantly questioned Parliament's authority to repeal Article 370 in the absence of the Jammu and Kashmir Constituent Assembly. Only the constituent assembly, whose term expired in 1957, had the authority to recommend repeal or modification of Article 370, and because it ceased to exist after 1957, the constitutional provision granting special status to J&K assumed a permanent character, he has argued.

Mr Sibal reiterated his contention before the bench, which also included Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, on the third day of the hearing on the petitions challenging the Centre's decision. Hon’ble Chief Justice Chandrachud, on the other hand, was 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 stated to Advocate Sibal.

He agreed with Advocate Sibal that Brexit was a political decision, but added, within a Constitution such as ours, there is no question of referendum.



Tagged: Article 370  
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