India is currently debating the need for freebies/free benefits to its citizens. At the time of writing this article, the Indian Supreme Court is hearing a PIL seeking directions to regulate freebies/free benefits promised in the poll manifesto, whereas the politicians are exchanging barbs over their rise. Prime Minster Modi has termed their use as part of a ‘Revadi Culture’ aimed at garnering votes, whereas his political opponent Arvind Kejriwal (Delhi’s Chief Minister) has termed them as quality services to the public.
Mr. Kejriwal has taken the debate a step further by suggesting that a referendum should be conducted on whether the taxpayer’s money should be spent on such freebies. This is not the first time that Mr. Kejriwal has raised the issue of a referendum, as he made a similar remark in relation to Delhi’s statehood, a few years ago. While the remarks may have political motivations, they raise an interesting issue concerning the legality of referendums in India.
Most of the democratic nations across the world, follow the system of a representative democracy, wherein the citizens elect their representatives, who in turn make laws and frame the state’s policy. On the other hand, in some countries citizens directly take part in the law-making functions and also decide policy issues. 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 for passing a law.
In this post, I discuss the position of referendums in India, starting from the discussions in the Constituent Assembly. I will argue that while the Constitution does not provide for referendums, they have been carried out in the past over decisions of a territory to join India. I will also narrate an episode from India’s history where a Law Minster wanted to amend the Constitution and add provisions for a referendum.
A. Constituent Assembly and Referendums-
The Constituent Assembly tasked to frame our Constitution discussed the possibility of a referendum albeit briefly. The original draft placed before the Assembly had no provisions for a referendum, however, later a member suggested conducting a referendum during the discussions on adopting a National Language in India. 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.
B. Referendums in Independent India-
Despite the Constitution lacking provisions concerning referendums, 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 expressed that it was keen 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 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).
The second instance concerned 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) which voted 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 (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.
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 to protect their distinct culture.
C. Demand for Amending the Constitution –
In the seminal judgment of Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225 wherein the Court held that the basic features of the Constitution cannot be amended, Justice Dwivedi (dissenting) remarked that in India there can be no law for a referendum, as the exclusive procedure for amending the Constitution is Article 368 (par. 1784).
Two years later, a state of Emergency was imposed in the country 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 and the Executive. Therefore, when a new 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 resurfaced. Law Minister Shanti Bhushan was keen on granting additional protection to the provisions of fundamental rights and hence, introduced a provision in the Amendment which provided 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 proposed 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 debated both on the floor of the Parliament and in political circles. A section believed that the idea of a referendum in India was unconstitutional, as the Court in Kesavananda Bharti’s judgment had categorically established that the basic structure of the Constitution 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 amended and returned by the Rajya Sabha. The issue of incorporating referendums in the Constitution, was hence, put to rest.
The Constitution of India is silent on the issue of referendums. Based on the reading of the Constituent Assembly Debates and the judgments of the Supreme Court, it is safe to argue that referendums are not possible in India. They have been conducted only in two situations i.e., (a) when the citizens of a territory debated over their merger with India; and (b) when they debated over their status as a Union territory. In the latter, the Union government passed a legislation calling for ‘Opinion Polls’ which was more a political move than legal. It is highly unlikely, that the Union Government will pass a law calling for opinion polls on the issues of freebies. In all likelihood, the final arbiter on the issue will be the Supreme Court.