08-08-2023 : In the ongoing legal deliberations surrounding the abrogation of Article 370, Chief Justice of India (CJI) DY Chandrachud delivered significant remarks, underlining that within a constitutional framework like India’s, the concept of a referendum is not applicable. The CJI’s observations were part of a larger discussion conducted by the Supreme Court on a series of petitions challenging the abrogation of Article 370, which had granted special status to the former state of Jammu and Kashmir. The hearings, initiated on August 2, are presided over by a five-Judge Constitution Bench, led by CJI Chandrachud.
The Supreme Court grappled with the question of the legality behind the repeal of Article 370 and whether the act was constitutionally valid. India’s status as a constitutional democracy was highlighted, emphasizing that the will of the populace should be determined solely through established institutional channels.
Senior advocate Kapil Sibal, presenting his case, likened the abrogation of Article 370 to political acts like Brexit, which involved a public referendum to ascertain the opinion of British citizens. Sibal contended that this approach was not mirrored in the repeal of Article 370 on August 5, 2019. He challenged Parliament’s authority to annul Article 370, suggesting that such an act necessitated the consensus of the people.
However, CJI Chandrachud differed in his perspective, asserting that while Brexit was a political decision, the structure of India’s constitution precludes the notion of a referendum. He highlighted that in a constitutional democracy like India’s, seeking public opinion should be channeled through established institutions. Therefore, envisioning a referendum akin to Brexit’s model would be incongruous.
CJI Chandrachud referred to a speech by Sheikh Abdullah, the former Chief Minister of Jammu and Kashmir, pointing out Abdullah’s assessment that Pakistan operated as a feudal state, contrasting with India’s ongoing land reforms and focus on people’s interests.
Addressing the issue of Article 370’s transformation from a temporary provision to a permanent one, CJI Chandrachud posed a crucial query. He questioned whether the provision could be converted into a permanent facet solely through proceedings within the Jammu and Kashmir Assembly. Alternatively, he questioned whether an act by the Indian Constitution, such as a Constitutional amendment, was required for such a transformation.
As the hearing continues, the legal discourse explores the intricacies of Article 370, its repeal, and the constitutional implications surrounding these actions. The session remained inconclusive, with further arguments set to be presented by senior advocate Gopal Subramanian on behalf of the petitioners.
The ongoing hearings stem from several petitions challenging the abrogation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019. This act resulted in the division of the erstwhile state into two Union Territories: Jammu and Kashmir, and Ladakh. The matter remains under the scrutiny of the Constitution bench, with implications that could reverberate throughout the nation’s legal and constitutional landscape.