Article 370 hearing: Referendum not an option under Constitution says SC

Sibal cited it to buttress his argument that the process of amending Article 370 could not have been done “unilaterally” by the Centre without the people of J&K agreeing to it. “Your Lordships would remember Brexit. What happened? There was no constitutional provision 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 central to this decision, not the Union of India. It goes counter to the very grain of Article 370,” Sibal told the bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant.

The CJI, however, said that “in a constitutional democracy, seeking the opinion of the people has to be 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 in terms of established institutions. So, you cannot entertain a Brexit-type referendum. That (Brexit) is a political decision which was taken by the then government. But within a Constitution like ours, there is no question of a referendum”.

Sibal also cited a speech made by Sheikh Abduullah to the J&K Constituent Assembly on November 5, 1991, about how the former CM of the erstwhile state had cautioned against any attempt to change the status between J&K and India “arbitrarily”.

Referring to some parts of the speech that were left unread by Sibal, the CJI lauded Abdullan for his “foresight”. Sibal said ultimately the issue is that the will of the people was not considered at all.

“An executive act of the Union of India cannot alter unilaterally provisions of the Constitution of India as applicable to J&K, including getting rid of the special status, given acceded to by the Government of India and by Parliament in enacting Article 370 of the Constitution,” argued Sibal.

Sibal concluded his arguments saying that “Constitution is a set of values… and if you through such executive acts silence the voice of people, what is left of democracy”.