21 July 2020 3:45 AM GMT
Earlier this month, Russia voted on an important referendum that brought significant changes to its Constitution. The Russians decided to grant President Putin the option of leading the country until the year 2036, by limiting a President's Rule to two six-year terms in total rather than two consecutive terms. They also voted to effectively ban same-sex marriages in the...
Earlier this month, Russia voted on an important referendum that brought significant changes to its Constitution. The Russians decided to grant President Putin the option of leading the country until the year 2036, by limiting a President's Rule to two six-year terms in total rather than two consecutive terms. They also voted to effectively ban same-sex marriages in the country. Interestingly, some scholars believe that a referendum was not needed to amend the Russian Constitution. However, President Putin went ahead with it to secure legitimacy and more importantly show the nation's faith in him.
Majority of democratic nations across the world, follow the system of an indirect democracy, wherein the citizens elect their representatives, who in turn make laws, determine policies and carry on administrative work. On the other hand, in some countries citizens directly take part in the administration of the country, decide on policy issues and make laws as well. This form is called a direct democracy and a referendum is a facet/means of it. In a referendum, the citizens are called to vote in person (rather than through their elected representatives) on a policy decision to be taken by the government (for instance, United Kingdom's decision to leave the European Union) or an amendment to their Constitution. Several nations have incorporated provisions for referendums in their Constitution.
Scholars have often debated and discussed the need to have a referendum on key policy issues in India. There were talks of a referendum on issues such as the grant of statehood to Delhi and the bifurcation of undivided Andhra Pradesh, however, they did not materialise. It has long been believed, that conducting a referendum is not possible in India, as the Constitution has no provisions for it. However, there have been few instances wherein a referendum has indeed been carried out in India.
In the present post, I shall discuss the position of referendums in India, starting from the discussions in the Constituent Assembly. I shall also discuss instances wherein referendums were carried out and also the attempt to include a provision for referendums in the Constitution.
The Constituent Assembly while debating upon the provisions of the Constitution, witnessed a lengthy discussion on the position of a referendum. It should be noted that the original draft placed before the Assembly, had no such provisions. During the discussions on adopting a National Language in India, a member suggested conducting a referendum.
Dr. Rajendra Prasad (President of the Assembly) responded to this demand, by stating that any discussions on a referendum would be futile, since there is no provision for one in the Constitution (14 September 1949).
Referendums came up again, during the debate on the provisions for amending the Constitution, wherein Shri Brajeshwar Prasad advocated for referendums and listed out its advantages. He stated that a referendum recognizes the sovereignty of the people and curbs absolutism of parliamentary majority. He remarked,
"Sir, I am in favour of a referendum, because referendum has many advantages. Referendum is democratic as it is only an appeal to the people, and no democratic government can have any objection to resorting to referendum in order to resolve a deadlock, when there is a conflict between Parliament and provincial governments. Secondly, I am in favour of referendum because it cures patent defects in party governments. People think that it is too radical a weapon and that a conservative people like ourselves ought not to use it without proper consideration and thought. It is conservative since it ensures the maintenance of any law or institution which the majority. of the electors effectively wish to, preserve. Therefore it cannot be a radical weapon. Thirdly, Sir, referendum is a clear recognition of the sovereignty of the people. Fourthly, it would be a strong weapon for curbing the absolutism of a party possessed of a parliamentary majority." (17 September 1949)
Dr. Ambedkar cited the examples of the Irish Constitution, Swiss Constitution and the Australian Constitution, to argue that a referendum involves an elaborate and difficult procedure and hence, has not been included in our Constitution. The idea of referendum was hence, dropped.
The Assembly's underlying belief was that the elected representatives in the Parliament would be truly reflective of the will of the people, and hence, there was no need for a separate referendum procedure.
The Constitution as adopted by the Constituent Assembly, did not have any provisions for a referendum. However, the nation witnessed referendums on five key occasions.
First, during the incorporation of Chandernagore within the territory of India. In 1946, Chandernagore (then a French territory) was declared a free city and the French Government decided that it intended to leave the people of French establishments in India, with a right to decide their future fate and status. Therefore, in the year 1949 a referendum was conducted in Chandernagore in 1949 wherein the citizens voted in favour of merging with the territory of India. Subsequently, the administration of Chandernagore was transferred to India (In Re Berubari, AIR 1960 SC 845).
Similarly, the second instance was of the princely state of Junagadh, wherein the citizens voted to accede to India rather than Pakistan in the year 1948 [State of Saurashtra v. Memon Haji Ismail, (1960) 1 SCR 537]. The third instance was of Pondicherry (a former French territory) voting to join the Indian Union in the year 1954.
The fourth and the most debated referendum concerned the future of the territories of Goa, Daman and Diu, and whether they would continue as a Union Territory or join the state of Maharashtra or Gujarat, respectively. Since the Constitution of India had no provisions for a referendum, the Union government passed the Goa, Daman and Diu (Opinion Poll) Act, 1966, giving the electors the choice to showcase their opinion. Interestingly, the constitutional validity of the Act was unsuccessfully challenged as well (PIO Fernandes v. Union of India, 1967 SCC Online GDD 7).
The electors decided in favour of continuing as a Union territory. It should be noted that the government did not call the above exercise a 'referendum' but an Opinion Poll. However, in effect it was a referendum.
The last referendum happened in the year 1975, wherein the inhabitants of Sikkim decided on their merger with India (Anjan Banerjee v. Union of India, 1993 SCC Online Cal 397). An unsuccessful attempt at a referendum was also made regarding the inclusion of Udham Singh Nagar to Uttaranchal, during the bifurcation of the state of Uttar Pradesh [Pradeep Chaudhary v. UOI, (2009) 12 SCC 248].
It should be noted that while the Constitution does not allow for referendums, the tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram, recognised under the Sixth Schedule have incorporated provisions allowing referendums in election matters [For instance, United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chief and Headman) Act, 1959]. These areas have been given such autonomy so as to protect their distinct culture.
C. Demand for Re-instating Referendums in the Constitution of India-
The time of the 1960s and 70s was very significant for constitutional law in India. The Union government at the time tried to usurp complete authority over the Constitution, including its complete overhaul. In the famous case of Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225, the Supreme Court laid down the Basic Structure Doctrine according to which certain basic features of the Constitution could not be taken away by the Parliament, under its amending powers.
In this very case, Justice Dwivedi (at par. 1784) had also remarked that in India there can be no law for a referendum, as the exclusive procedure for amending the Constitution is Article 368.
Two years later, a State of Emergency was imposed in India during which grave human rights violations were committed by the government and its officials. The Union government passed the infamous 42nd Amendment [Constitution (Forty Second Amendment) Act, 1976 that gave unbridled powers to the Parliament. Therefore, when a new Union government came to power in the year 1977, it tried its best to undo the wrongs of the past.
Parts of the 42nd Amendment were repealed through the 44th Amendment [Constitution (Forty Fourth Amendment) Act, 1978]. Interestingly, during the discussions on this amendment, the debate on referendums also resurfaced. Law Minister Shanti Bhushan was keen on granting additional protection to the provisions of fundamental rights and introduced a provision in the 44th Amendment that fundamental rights could be amended only through a referendum.
Bhushan was also sceptical about letting the judiciary decide the components of the basic structure. He was of the view, that under the guide of protecting the basic structure, the Supreme Court could prevent a much-needed constitutional amendment. Therefore, he introduced a provision stating that wherever an amendment affected the basic features of the Constitution i.e. secularism, democracy, fundamental rights, free and fair elections, independence of the judiciary etc., the final call on it would be taken through a referendum.
These provisions were part of an intense debate in the Parliament. Experts believed that the idea of a referendum was unconstitutional, as the Court in Kesavananda had categorically established that the basic structure could not be amended. Ultimately, the provisions on referendum were defeated in the Rajya Sabha and the 44th Amendment Bill was sent back to the Lok Sabha with changes. Arguably, this became the first instance in India's parliamentary history, wherein a Constitution Amendment Bill passed by the Lok Sabha was changed and returned by the Rajya Sabha. The issue of incorporating referendums in the Constitution, was put to rest.
The Constitution of India is silent on a referendum, therefore theoretically a referendum is neither allowed nor prohibited. In other words, the government can theoretically conduct one so as to ascertain the will of the people towards a policy or a possible amendment. Based on the response, the government can take appropriate decisions, as witnessed in Goa, Daman and Diu. The only caveat with this exercise is that a referendum should not be considered as a formal tool for amending the Constitution, as that would go against the views of the Supreme Court.
A country like India does not need a referendum. The periodical elections conducted, act as the referendum where people express their views at large. Constitutional expert Shri Subhash Kashyap has rightly remarked that, every election is a referendum on the basis of agenda, policy, programme and ideologies of the parties concerned. In my opinion, referendum in India shall carry the risk of stifling the voice of minorities. Even the Courts will be hesitant to interfere, knowing that the law in question is backed by the sovereign i.e. the people of India.
(The author is a Delhi-based lawyer. The article was first published in his personal blog 'The Basic Structure'. He may be reached at email@example.com)