India’s Need For A Set of Referendum Laws
This article was written by Vishal Sharma, a student of Himachal Pradesh University Institute Of Legal Studies.
The foundation of democracy is trust in the capacities of the people, faith in human intelligence and belief in the power of pooled and collective action.[1] (John Dewey) One also needs to understand that human beings are social animals and have always and everywhere gathered to discuss matters of common interest in order to make life more rewarding through a variety of expressive or artistic activities.
The Greek city-states of antiquity were slave societies but the first ideas of democracy were born there and then among people who gathered in the city square to debate the issues of the day.[2]
Which leads us to the notion that democracy would indeed be hollow if it fails to generate collective action, as well as fails to understand that it is not belief that these things are complete but that if given a show it will grow and be able to generate progressively the knowledge and wisdom needed to guide such collective action, and all this can be generated, tested and recognized by the use of an instrument called the referendum (Procedure which gives the electorate a direct vote on specific issues in order to advise or decide upon it); as from dealing with physical spaces to building consensus on issues of the common good, from characterization of society to aggregating individual views all are within the grasp of this instrument which is much like a knife {A knife is highly efficient for a particular usage (cutting), but it can also be used for other purposes (buttering bread, modeling day, jabbing holes)}.[3] As an instrument it is opposed not only to any dictatorial rule but also to any systematic exclusion of a social group or groups in equal participation in the legal or political sphere, not only this it also forms a normative yardstick for measuring the conditions for the twin freedoms of information and expression.[4]
Thus, such an instrument would be best suited for a country like India {One of the four major democracies not having a set of referendum laws along with Netherlands, Germany and Japan}[5] ;as other than anyone stranded on a desert island, no one could have missed the sense of political malaise that seems to have gripped India for years.
There is a growing feeling that our political representatives, when once elected from a constituency, do not need it any more till the next elections come around five years or so later; rather than acting as a bridge between the constituency and the government they perceive their role as of one following their parties directions apart from looking after their own interests.[6]
Further, these representatives often make policies that are not aligned with the wishes of the people, a key reason for this being that political parties require huge funds to contest elections, which are usually provided by moneyed special interests to whom our representatives often cater.[7] As a matter of sheer fact they get a mandate from the constituency, but as a matter of real fact they treat it as an irrevocable power of attorney and therefore the people are left with no say and all they are left to say is “Na ghar ke na ghaat ke” [Neither the house nor the pier].
So, inserting this institutional mechanism (referendum) within our system would help solve various structural flaws in our democracy as it has done with various other democracies ever since its first experimentation within the Athenian democracy in the city state of Athens Circa in 508 BC,[8] from then on referendums have been used in almost every major democratic country and laws regarding it are at place in most of those countries either of the regional level or at the national level.
But the Indian representatives have always dismissed the idea of having such an instrument and have laid stake to the claim of India being a representative democracy rather than being a direct democracy which usually adopts the referendum measure, they also argue that these processes might weaken the representative model by undermining the role and importance of elected representatives.
But contrastingly on the other hand various representative democracies have moved towards this instrument:-
Either it be UK where until the 1970s referendums had been widely dismissed as unconstitutional; but by the end of the century it could be argued that it has become an accepted part of the British Constitution, a separate act called the Elections and Referendums Act was also passed in this regard in the year 2000.[9] The Scottish Independence Referendum or the recent European Union Membership referendum also supports the argument.
Or it be New Zealand where also referendums were held in low regard but either it be the historic Six; O Clock closing referendums or the revolutionary saving scheme referendum or for that case the recently concluded flag referendum on 24/3/2016.[10] The country has adopted this instrument with open arms.
To the recent approval of a set of basic referendum law by the Knesset (Unicameral Parliament) of Israel in 2014.[11]
Not only this from the Quebec referendums in 1980 and 1995 in Canada, to the Bangladeshi Constitutional referendum in 1991, to the much vaunted 44 referendums in Australia on important issues like retirement age of judges, to the selection of a national song.[12] The list goes on and on, but all this showcases that representative democracies all over the world are accepting this instrument with open arms and are also slowly and steadily moving towards building strong laws in this regard.
Even in the 3 major democracies which don’t have a set of referendum laws (India being the 4th) the demand of having such instruments is ever increasing both in the political and the public sphere:-
Like in the case of Germany where from a recent Emnid poll in 2013 it became clear that 88% people wanted citizen-initiated referendums to be introduced nationally.[13]
Or the case of Netherlands where according to an SCP poll in 2012, 89% of the voters supported introducing a referendum.[14]
More recently in 2016, Japan also took a giant leap in this direction when the Prime Minister of Japan (Shinzo Abe) indicated on holding a nationwide referendum on constitutional amendments covering emergency and fiscal health and also indicated at this desire of forming laws in regards to constitutionally mandated referendums.[15]
Thus, these moving trends in favor of referendums (either it be citizen initiated referendums or constitutionally mandated referendums) and laws regarding it specially in representative democracies is a lesson to be learnt by India’s representatives who disregard this instrument that public opinion is the next step towards developing and deepening the legal and political stratosphere, and thus the time has come to rethink and deepen our democracy by putting in place systems where laws and policies would be decided by the decisive inputs of the people (referendums). Sticking to the referendum measure and its need in the Indian framework one also has to look at various facts that have emerged in this regard from both the legal and administrative standpoints either it be from the recent times or from the times of independence:-
Be it the passage of the 73rd and 74th amendments to the constitution where a limited from of people is participation in law and policy making is allowed through gram sabhas or bodies of registered villages,[16] also due to which various local referendums have been held in our country after directives from the Supreme Court of India. Two of such historic referendums were
(a) The one conducted in Pen Taluka (Raigad district) of Maharashtra on 22nd September 2008, where 22 villages casted their vote in connection to the Reliance groups Mumbai Special Economic Zone [MSEZ], as to whether they would sell their land to Reliance.[17]
And, (b) The one held in Niyamagiri, Orissa on 13th August, 2013 {also called India is first green referendum}; where 12 constituencies of that area voted for or against a mining project belonging to the Vendata group.[18]
Apart from the above, we also forget the fact that even though a referendum has not been inscribed in our constitution, India mulled an extra-constitutional referendum exercise on the issue of the right to self-determination for the people of Kashmir during the Nehru regime (although it never happened).[19]
Many of us also forget the use of this instrument (referendum) during the formative years of this country {with the help of special acts passed}, especially in the territorial context:-
– Right from the time of independence where the Indian Independence Act, 1947 which decided the fate of British India subjected The North West Frontier Province[20] (now part of Pakistan) and District Sylhet of former Assam[21] (now part of Bangladesh) (former East-Pakistan) to a referendum.
– In Junagadh (now part of India) also a referendum was held on 20th February, 1948 as to whether it would join India or Pakistan; 99.95% of the population voted to join India, {Although called a plebiscite, it was Infact a referendum as the results were binding on all stakeholders}.[22]
Not only this, Sikkim becoming a part of India was also subject to a referendum held on 14th April, 1975 in regards to Integration with India or continuing with the Sikkimese monarchy; 97.55% people approved Integration which thus resulted in the former independent country becoming an Indian state.[23]
Similarly, The Goa Opinion poll was a referendum in the state of Goa held on 16th January, 1967; to decide the future of Goa, Daman and Diu within the Indian Union {Although called on opinion poll, it was in fact a referendum as the results of the poll were binding on the government of India}; 54.20% people supported a separate territory and the areas were not made parts of Maharashtra.[24]
Thus it can be said that referendums have had their share within the Indian framework and have also helped shape the territorial landscape of the country and more recently they also played an important role in transforming the village administration in a few parts of our country, and if such a measure gets inscribed in our constitution and a separate low is passed in this regard then it can help immensely in dealing with severe and complex issues being faced by our country for years.
Referendum’s need has also been felt in a lot of issues faced by our country:-
Either it be years back during the Anna movement, when his lokpal was being discussed in parliament; one intuitively felt a large degree of public support to a growing revolution against corruption, and the need to take “strong” action to combat the menace. But one did not find this general mood of the people reflected in the on goings on the parliament where it was treated as another political matter to be settled at convenience and in a manner suitable to various political parties;[25] specially on the issue of the CBI where if a poll had been taken at any time as to whether the CBI should be under government control or not; There would have been a loud voice from the people to make CBI free, but the parliament was surely out of time with the people.[26]
Or it be the policy on reservations in promotion, where accepting that various deprived classed need special attention and affirmative action, many polls {held a couple of years back} while supporting reservation of “entry” indicated a 90% opposition to reservation in “promotion”,[27] but astonishingly nearly every major political party supports this move; can there be a greater mismatch between the parliaments view and those of the people.
From the recent issues of demilitarizing Siachen where from the last 32 years two soldiers die every month[28] , to the removal of the AFSPA in some parts of J&K and the North-East, from allowing women and dalits entry in temples, to keeping politicians away from sports administration, from spending taxpayer is money on advertising government’s accomplishments, to criminalizing marital rape.
The divide in the political sphere regarding these issues is widening so much, due to immense public pressure that adoption of the referendum measure seems to be the only way out; as whatever be the challenge such democratic reform is necessary, as such a reform would ensure that our government truly represents the people.
Moreover, a citizen knows better than his representatives what can serve him the best and enhance his interests. A perspective which comes direct and straight from the people carries with it fuller moral authority and commands more unquestioning obedience that a perspective made for them by the representatives.[29] Adoption of this measure would also minimize the importance of political parties and simultaneously also help in discouraging the partisan spirit; this popular check on the vagaries by the legislature would also show the latter that it does not always know or give effect to the real will of the people.[30]
But in the end, all this boils down to the labeled dispute between “The Optimists Versus The Sceptics” where:-
The optimists would be convinced that people’s participation is of key importance to the proper functioning of a democratic system;
(And)
The sceptics would worry over the possibility that people’s participation would not lead to a properly founded opinion.[31]
These positions are consequently also tied to different concepts of “democracy” in theory as well as practice. A useful distinction is between the “market” and “forum” model of democracy:- The market model imagines democracy as a system where political parties are competing over support in elections and voters choose between their “packages” on the basis of the given preferences;
(While)
The forum model focuses on the formation and transformation of preferences through public deliberation and here the public and its participation is absolutely central.
Having said all this and being an optimist as well as a supporter of the forum model of democracy; all one can conclude is by saying that, while referendum is not a solution to all our problems, but it’s use in major and divisive issues would enhance our democracy as well as deeper and strengthen it, “As there must somewhere in every system be a power which can say the last word, can deliver a decision from which there is no appeal and in a democracy it is only the people who can thus put an end to controversy.”[32] (Bryce)
[1] Source-Book= Muller, Dennis. C.; Constitutional Democracy, Oxford University Press, Oxford, 1996 (Pg-177)
[2] Source-Book= Gripsrud, Jostein, : Moe Hallvard, : Molander Anders, :Murdock Graham; The Public Sphere (Vol-I)- Discovering the Public Sphere Sage Publications Ltd, London, 2011 (Pg-59).
[3] Source-Book= Hendriks, Frank; Vital Democracy-A Theory of democracy in Action, Oxford University Press, Oxford, 2010 (Pg 87, 88)
[4] Source-Book= Garsten, Bryan; Political Representation Ch-4= Representative government and popular sovereignty, Cambridge University Press, Cambridge, 2011 (Pg-103)
[5] Source-Report=Report of Commission on the conduct of Referendums: 21st November, 1996 [U.K.] {Israel was the 5th country on the list but it was omitted as it now has a set of referendum laws}
[6] Source-Newspaper Article=Our democracy must empower voters Prashant Bhushan & Atishi Marlena {The Hindu (21/7/2012)}
[7] Source-Encyclopedia (Online Edition): (Max Plank Encyclopedia of Public International Law [MPEPIL]; Referendum= Yves Beigbedar (last updated-June 2011).
[8] Source-Newspaper Article= Give Referendum a Chance Ashish Tripathi {Times of India (4th July, 2011).}
[9] Source-Research Paper= Some Thoughts about Referendums, Representative Democracy and Separation of Powers (1/11/02) Simon Hug {CIS, IPZ, Universitat Zurich} http://www.weblaw.haifa.ac.il/he/Events/eveFile/hug:Rm-Cj:pdf.html Retrieved on= 18th March, 2016.
[10] Source-Newspaper Report= The Guardian 24/03/2016 (Online Edition) – http://www.theguardian.com/-world/2016/marc/24/N2-flag-changep.html (Retrieved on =26/03/2016).
[11] Source-Document= Basic Law: Referendum (2014) Passed on 12/03/2014 by the 9th Knesset (Online Edition)-http://www.knesset.gov.il/description/eng-mimshal-yesad.html (Retrieved on = 18/3/2016).
[12] Source-Report=Referendums (dates & results): 24th October, 2012 Australian Electorate Commission (Retrieved on = 15/3/2016).
[13] 14 Source-Document= Direct Democracy Facts and arguments about the introduction of initiative and referendum Jos Verhulst & Aryen Nijeborer.
Democracy International, Brussels 2007 (last updated- 5/9/2014) (http://www.referendumplatform.nl/sharefiles/22-875694/2014-R/DD.pdf.html ) {Retrieved on 18/3/2016}
[15] Source-Newspaper Report= The Japan Times (3/2/2016) (Online Edition) – http://www.japantimes.co.jp/news/2016/02/-3natioanl/politics-diplomacy.abe-explicit-call-amendment-constitution-article-9/#.VwP9xqR96hf.html {Retrieved on 20/3/2016}.
[16] Source-Commentary= Basu, DD; Constitution of India, Lexis Nexis, Gurgaon, 2011 (8thed.) Vol. 8 (Art 233 to 307) (Pg-8571, 8572)
[17] Source-Newspaper Report:- 22 Villages Vote in SEZ referendum Rahi Gaikwad {The Hindu} {22/09/2008}
[18] Source-Magzine Article= From Niyamagiri, A lesson of democracy Jay Mazoomdar (31/08/2013). Tehelka (Issue 35 Vol. 10) (http://www/tehelka.com/2013/08/from-niyamgiri-alesson-for-democracy ) (retrieved on 25/03/2016).
[19] Source-Newspaper Article = A brief history of the Kashmir conflict 24th September, 2001 (The Telegraph [UK] ) http://www.telegraph.co.uk/news/1399992/A-brief-histroy-of-kashmir-Reterieved on 23/03/2016
[20] Source-Book=Mehra, Parshotam; The NWF Drama, 1945-1947, Manohar Publishers & Distributors, Delhi, 1998 (General Introduction).
[21] Source-Journal (Online)= Modern Asian Studies (Vol. 47/ Issue 1) (1/1/13) [Cambridge] The Making and Unmaking of Assam-Bengal Borders and the Sylhet Referendum-Ashfaque Hossain (Retreieved on= 31/03/2016).
[22] Source-Magazine Article= Of Jinnah & Junagdh – AG Noorani Vol. 18 –Issue 21 (Oct. 13-26, 2001) [Frontline] (Retrieved on 25/03/2016).
[23] Source-Journal (Online) = Asian Survey (Vol. 15, No. 9) (September, 1979) Sikkim The Merger with India – Rajan Gupta (Pg 786-789).
[24] Source-Journal l(Online)= Economic & Political Weekly [Article] (Vol. 2. No 3/5: Feb, 1967) Goons keep Goa (Pg-129, 131) http://www/epw.in.journal/1967/39-C/Weekly-quarterlynotes/goa-ref-lmnst-contents.html Retrieved on =19th March, 2016.
[25] Source-Newspaper Article= Time to Introduce a Referendum Procedure – TSR Subramaniam {The New Times of India (14/10/12)}.
[26] Source-Newspaper Article= The Need for Bringing the CBI under the Lokpal – GR Gopinath {The Hindu (18/11/13)}.
[27] Source-Newspaper Report = First Post 21/2/2014 – Reservations in promotions not acceptable.
[28] Source-Online Magazine = Two Soldiers die every month in Siachen – Abhed Seth & Trisha Jalan (12/02/2016- The Wire) http://www.thewire.in/2016/02/12/one-soldier-dies-every-month-in-siachen-21413/-.html – Retrieved on 22/03/2016
[29] Source-Newspaper Article= Choosing between reform and referendum Baijayant (Jay) Pandya {The Hindu (24/01/2012)}.
[30] Source-Book= Kapur, Anup Chand: Misura, KK; Select Constitutions, S. Chand Publishers, Delhi, 2012 (Pg-516) {Arguments in Favour of Referendums}.
[31] Source-Book= Gripsrud, Jostein : Moe Hallvard , Molander Anders, “Murdock Graham- The Public Sphere (Vol.-I)- Discovering the Public Sphere, Sage Publications Ltd, London, 2011 (Speech to the Electors of Bristol-Immanuel Kant).
[32] Source-Book=Krish, Nico; Beyond Constitutionalism, Oxford University Press, Oxford, 2010 (Pg-22).
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