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Referendum as A Way of Constitutional Amendment.

This article was submitted by Yawar Mukhtar from Dr. Ram Manohar Lohiya National Law University for National Legal Writing Competition,2016.

‘We, the people of India’, an extract from the preamble which sets out the guiding principles of the constitution, recognizes people of India as ‘WE’. Such is the power and status given to the people of India but unfortunately “WE” are not given the privilege to take part in our own constitutional amendments. The only way to involve people in the amendment process is the referendum, which is already adopted by more than 100 constitutions directly or indirectly. Thus making it the most common and popular method employed for amendment of a constitution.

The referendum is direct involvement of people in the amendment process and is considered to be the most profound forces in shaping a nation’s life. It ensures that the people are the source of legitimacy for the constitutional foundation. Thomas Jefferson, the former president of United States ruled out the importance of people’s participation “Every people may establish what form of government they please, and change it as they please, the will of the nation being the only thing essential.”

India is a democratic republic, wherein the people are the ultimate masters. The constitution belongs to the people and not to their representatives or servants holding various public offices. The referendum would ensure direct involvement of the people and can be taken as a neutral weapon available to every group and party in politics. It would promote accessibility to all citizens irrespective of caste, creed or color. Thus, giving equal opportunity to all citizens and hence promoting equality.

Moreover, through referendum government is kept quite close to the citizens and even hoi polloi opinions can be relocated to the government cogently. This is how government’s power would be utilized in such a manner which is more amenable to the people, while on the other hand people would be better informed on the vital issues.

  • REFERENDUM ADOPTED BY VARIOUS COUNTRIES

Albania[1]; Algeria[2]; Andorra[3]; Antigua and Barbuda[4]; Armenia[5]; Australia[6]; Austria[7]; Azerbaijan[8]; Bahamas[9]; Bangladesh[10]; Belarus[11]; Congo[12]; Denmark[13]; Dominica[14]; Egypt[15]; Estonia[16]; France[17]; Grenada[18]; Guyana[19]; Iceland[20]; Iran[21] ; Ireland[22]; Italy[23] ; Japan[24]; Jamaica[25]; Latvia[26]; Lithuania[27]; Madagascar[28]; Malta[29]; Mauritania[30]; Mongolia[31]; Morocco[32]; Namibia[33]; Paraguay[34]; Philippines[35]; Poland[36]; Romania[37]; Russia[38]; Saint Vincent and Grenadines[39]; St Kitts and Nevis[40]; Saint Lucia[41]; Singapore[42]; Slovenia[43]; South Korea[44]; Spain[45]; Switzerland[46]; Taiwan[47]; Turkey[48]; Venezuela[49]; Zambia[50].

Further, all the 50 states of America have the referendum as a way of amendment, directly or indirectly. Therefore, it is implied that more than 100 constitutions have involved people in their respective constitutional amendments through the referendum.

  • FUTILE ATTEMPT TO INTRODUCE REFERENDUM.

Considering the benefits of the referendum, earlier in India, an attempt was made to introduce referendum as a way of amendment of basic features of the constitution through 45th amendment bill, 1978. Moreover, it was passed by Lok Sabha with the requisite majority and then was introduced in the Rajya Sabha on 28th August 1978. Out of 177 members, 91 voted in favor whereas 86 voted against the clause[51]. Though the bill got the support of simple majority it failed to get the majority of total membership of the house and majority of two-third of members present and voting. A detailed study of RajyaSabha proceedings show us that voting was done on basis of party lines i.e. both the factions of congress party at that time opposed the said clause. The ruling party of that period didn’t have the requisite support in the Rajya Sabha. On the other hand, the Congress factions were opposed to the referendum method as they believed that such a provision would take away the power of parliament of amending the constitution and that legal sovereignty of the Parliament would be compromised[52]. In fact, the method of referendum got full support from various parties and politicians in RajyaSabha but the irony is that the members of congress supporting referendum couldn’t vote for some reason or the other. Therefore, the bill and ‘we the people India’ suffered.

Let us take into consideration that whether the elected representatives are actually the true representative of the people. It is argued that two-thirds of the members in the two houses of parliament cannot be supposed to speak on behalf of the entire people of the country in a crucial matter of amendments. Moreover, two-thirds of the members need not necessarily represent the majority of the people of this country. Our electoral system is such that even the minority of the voters can elect two-thirds of the members of either house of parliament. [53] Even our Hon’ble Supreme Court threw some light on this topic in Kesavananda Bharti v. State of Kerala[54], C.J. Sikri observed

 “if a proposal is made by a Convention and ratified by three-fourths of a state in conventions it can hardly be doubted that it is an amendment made by the people.”[55] He further asked the question “Can we say that amendment made by the parliament is an amendment made by the people?”

Praising the method of referendum JJ., Hegde and Mukherjea observed “ When  a power is given to the people its contents can be construed to be larger than when that power is given to body constituted under that constitution. Two-thirds of the members of the houses need not necessarily represent even the majority of this country.”[56]

The only argument against referendum has been that India is yet to be developed and people are still illiterate and won’t be able to understand the concept of the amendment and hence they won’t be able to make the right choice. Reverting to this Reddy.J., observed “This is to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they could be trusted with deciding on direct issues like amending the constitution.”[57] Moreover, regarding the said issue, Shri Nagendra Singh in RajyaSabha said that “even though people are not very educated, they are very intelligent and they understand as to what is good for them.”[58]

Our constitution binds all the different organs of the state including the people, in any democracy, its amendment should be left in the hands of the ultimate sovereign which is people themselves. The ultimate sovereign of the state should be allowed to decide what their supreme law of the land shall be. As it is said, “Let the power flow from the votes of the people, and not from the barrel of a gun.”[59]

[1] Article 178 of the draft constitution1998.

[2] Article 174 to 178 of the constitution1996.

[3] Articles 105, 106 and 107 of the constitution1993.

[4] Section 47 of the constitution1981.

[5] Articles 111, 112 and 113 of the constitution1995.

[6] Section 128 of the constitution1900.

[7] Article 44 of the constitution1929.

[8] Articles 3, 152, 153, 154, 155, 156, 157 and 158 of the constitution1995.

[9] Article 54 of the constitution1973.

[10] Article 142 of the constitution1972.

[11] Article 147,148 and 149 of the constitutio1994.

[12] Article 178 of the constitution1992.

[13] Section 88 of the constitution1953.

[14] Section 43 of the constitution1978.

[15] Article 189 of the constitution1980

[16] Articles 161 to 168 of the constitution1992.

[17] Article 89 of the constitution1958.

[18] Section 39 of the constitution1974.

[19] Section 66 and 164 of the constitution1980.

[20] Article 70 of the constitution1944.

[21] Article 177 of the constitution1979.

[22] Article 46 and 47 of constitution1937.

[23] Article 138 and 139 of the constitution1948.

[24] Article 96 of the constitution1947.

[25] Section 49 of the constitution1962.

[26] Articles 76 to 80 of the constitution1922.

[27] Article 147,148 and 149 of the constitution1992.

[28] Article 138 to 142 of the constitution1992.

[29] Section 66 of the constitution1964.

[30] Articles 99,100 and 101 of the constitution1991.

[31] Articles 68 and 69 of the constitution1992.

[32] Articles 97 to 100 of the constitution1992.

[33] Articles 131 and 132 of the constitution1990.

[34] Articles 289, 290 and 291 of the constitution1992.

[35] Section 1 to 4 of Article XVII of the constitution1987.

[36] Article 235 of the constitution of the republic of Poland1997.

[37] Article 147 of the constitution1991

[38] Articles 134 to 137 of the constitution1993

[39] Section 38 of the constitution1979.

[40] Section 38 of the constitution1983.

[41] Section 41 of the constitution1979.

[42] Articles 5 and 8 of the constitution1963.

[43] Articles 168 to 171 of the constitution1991.

[44] Articles 128, 129 and 130 of the constitution1948.

[45] Articles 166 to 269 of the constitution1978.

[46] Articles 142 and 195 of the constitution2000.

[47] Article 174 of the constitution1946.

[48] Articles 4 and 175 of the constitution 1982.

[49] Articles 245 to 249 of the constitution1961.

[50] Article 79 of the constitution1991.

[51] RajyaSabha debates, 31st august, 1978, columns 281-285.

[52] Dr.Ashok Dhamija, need to amend a constitution and doctrine of basic features, 2007.

[53] Ibid, 470.

[54] AIR 1973 SC 1461.

[55] Ibid, para 334.

[56] AIR 1973 SC 1461, para 669.

[57] AIR 1973 SC 1461, para 1124.

[58] RajyaSabha Debates, 30th August 1978.

[59] Dr.Ashok Dhamija, need to amend a constitution and doctrine of basic features, 2007.

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