Satya Prakash
New Delhi, August 8
Maintaining that democracy functions through institutions, the Supreme Court on Tuesday virtually rejected the idea of plebiscite in Jammu and Kashmir, saying there was no question of a Brexit-type referendum under the Indian Constitution.
Remember Brexit
Your lordships must remember Brexit. There was no constitutional provision (in the UK) seeking a referendum. But when you want to sever a relationship, you must seek the opinion of the people. Kapil Sibal, senior counsel
Can’t think of it
You can’t envisage a Brexit-type referendum. That’s a political decision which was taken by the then government. Within a Constitution like ours, there is no question of a referendum. SC Bench
“You can’t envisage a Brexit-type referendum. That’s a political decision which was taken by the then government. But within a Constitution like ours, there is no question of a referendum,” a 5-judge Constitution Bench led by CJI DY Chandrachud told senior counsel Kapil Sibal, who represented some of the petitioners against nullification of Article 370 which gave special status to the erstwhile state of Jammu and Kashmir.
The top court’s observation came after Sibal referred to the 2016 Brexit referendum in the United Kingdom to emphasise the importance of people’s opinion in a democracy.
“Your lordships must remember Brexit. What happened? There was no constitutional provision (in the UK) seeking a referendum. But when you want to sever a relationship, you must seek the opinion of the people because people are central to the decision,” Sibal said.
However, the CJI said, “In a constitutional democracy, seeking the opinion of people has to be through established institutions. So long as democracy exists, any recourse of the will of the people has to be expressed by an established institution.”
As Sibal submitted that Parliament accorded approval to executive acts which unilaterally changed the Constitution as it was applicable to J&K, the CJI said, “Once we presume that Parliament can (amend it), any amendment to Article 370 would be subject to criticism on the ground of morality, not (for want of) power.”
Sibal repeatedly termed the nullification of Article 370 as a “political act” bereft of constitutional authority. “Can the Union of India in this manner terminate a relationship recognised in the Constitution of India?” he asked.
On the third day of hearing, the Bench frequently posed questions to Sibal on various aspects of the complex constitutional issues involving the provisions of the Constitution of India and the Constitution of Jammu and Kashmir.