REFERENDUMS- A CONSTITUTIONAL CALLING

By- Mansi Tiwari

Referendums are often regarded as the zenith of direct democracy. From the referendum on Brexit, to the recent referendums in Russia that allowed President Putin to lead the country till 2036, ban same-sex marriages, ensure patriotic education in schools and place the national law above international law, the world is no stranger to referendums. Referendums allow citizens to vote on a particular question and thus, become a means for direct representation, becoming a detour from the general method of representation via elected representatives. In counties that are direct democracies, referendums are the modus operandi for law making, administrative strategies and formulation of policies. They are also instrumental in establishing popular support or showcasing the faith of the people in the country’s leadership, as is said to be the case in Russia, where the referendum was conducted despite the fact that the constitutional amendment to keep Putin in power was well within the power of the Legislature to make.

India too has seen its fair share of referendums and also the various calls for conducting of referendums that arise in the country time to time. Independent India witnessed referendums like the referendums for incorporation of Chandernagore in 1949, for Pondicherry in 1954, and that for Junagadh in 1948 into Indian territory and the more recent referendums on for deciding the status of Goa and Daman and Diu that were conducted under the Goa, Daman and Diu (Opinion Poll) Act, 1966.

Though referendums have taken place in India, they find no place in the Constitution of India and were a subject of much debate in the Constituent Assembly. One of the most vocal advocates for the inclusion of referendums in the Constitution was Professor K.T. Shah. The demands for referendums were also raised by members like Purushottam Das, Brajeshwar Prasad and H.V. Kamath. During the discussion for adoption of a numeral system to be used for official purposes, an objection was raised against the use of Hindi numerals and Purushottam Das remarked that if a referendum was conducted in Maharashtra, on this question, the people would reject the Hindi numerals. The debate soon escalated with Mr Das stating that he had heard Mr Shankarrao Deo, another member of the Assembly, saying that if the whole constitution was referred to the people, they will never accept it. With more demands for referendums being raised on the use of Hindi in the assembly, President Dr Rajendra Prasad took the reins in hand and remarked, “May I just point out that this Constituent Assembly has been charged with the duty of framing a constitution for the country? There is no provision in the Constitution of this Assembly for any referendum and therefore there is no question of a referendum either on the whole or a part of it so that need not give rise to any controversy, because it would be futile.” Dr Prasad made a firm statement of the fact that referendums were not needed to be conducted to know the will of the people as the Constituent Assembly itself was representing the will of the people of India.

Pointing out the benefits and advantages of referendums during another Constituent Assembly Debate regarding division of powers between Union and State Legislatures, member Brajeshwar Prasad said, “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.

This contention of member Mr Prasad, was negated by Dr B.R. Ambedkar by citing examples from Irish, Swiss and Australian Constitutions.  Dr Ambedkar also made a very relevant statement about the method of election of the representatives and said, “it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage, I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate.

Prof Shah had also brought forward a demand for referendums by making two proposals. Firstly, that assent to bills under Article 111 of the Constitution, must be referred to the people. Secondly, the President of India shall have the power to “conduct and supervise” any referendums, if the need arises to refer a matter to the citizens. Both of these proposals were rejected, as Prof Shah had also expected. In response to a concealed demand for referendum in removalof representatives of the Assembly if the people of his or her constituency were not satisfied, by member H.V. Kamath, R.K. Sidhva responded by saying, that Mr Kamath’s proposal was “neither workable nor practicable.

Thus, we see that the Constituent Assembly at no point favoured the patent or latent inclusion of the provisions of referendums in the Constitution. Firstly, there were several logistical constraints which would have made the successful conduct of referendums troublesome for a vast and diverse country like India. Secondly, it is also argued that since the elections conducted every five years are already a means for the expression of the will of the people, there is no need for them to go for referendums or plebiscite to express their will.  The makers of the Constitution chose an indirect democracy, keeping the fact in mind that in a country as plural as India accounting for all views may not be feasible or agreeable. A representative chosen by the people is under the responsibility to bring their interests forward and if he fails to do that, the people may well replace him in the next elections.

Therefore, though demands arise for conducting referendums in India on issues ranging from statehood for Delhi, entry for women in the Sabarimala temple, to deciding the division of the erstwhile undivided Andhra Pradesh, Indian Constitution has no provisions for referendums. Referendums are neither a part of our constitutional scheme nor what the makers had envisioned for the country that would hold their creation as the most sacred legal text.