Fresh off the uproar caused by Brexit last week, Delhi Chief Minister Arvind Kejriwal set off a minor tremor with the announcement that the national capital would soon have a referendum on the question of full statehood. One of the campaign promises made by Kejriwal and the AAP, the call for a referendum on Delhi’s statehood is unlikely to disappear.
It isn’t just Kejriwal who wants to use referendum as a tool to direct government action on key issues. IN Kerala for instance, politicians have called for a referendum over prohibition and the Sabarimala issue.
Constitutional experts point out that there is no provision for conducting referendums in the Constitution of India. Of course, the absence of a provision for conducting a referendum is not the same as referendums being explicitly denied a place in the Constitution.
As Sudhir Krishnaswamy, Professor and Director of the School of Policy and Governance, Azim Premji University, says, “The place of referendum in the Indian constitutional scheme is not denied, there’s no part of the constitution that says you cannot hold a referendum. It is not provided for. So you can say it is in a place of silence.”
There have been calls in the past for conducting a referendum on issues such as the bifurcation of undivided Andhra Pradesh, and actual exercises that tread the line between opinion polls and referendums, as in the case of the 1967 poll on whether Goa and Daman and Diu should be merged with Maharashtra and Gujarat respectively.
However, experts say that a look at the larger constitutional scheme put in place shows that a referendum is not merely something not provided for, but also superfluous and even opposed to the way democracy was thought of in the Constitution.
Constitutional expert and former Secretary-General of the Lok Sabha, Subhash C Kashyap, for instance, says that when periodic general elections with adult suffrage are provided for, and free and fair elections conducted by an independent Election Commission occur every five years, no need arises for conducting referendums over and above them. “Referendum is an expression of views by the people at large. So every election is a referendum on the basis of agenda, policy, programme and ideologies of the parties concerned.”
One could make the argument that in a general election, policy and programme choices are limited to those that contesting parties put on their manifesto, which might leave important but controversial issues unexplored. However, as Krishnaswamy points out, in a country as plural as India, the question is not merely whether the majority’s views have been counted, but whether majority and minority views are properly accounted for together. If we were to have referendums for every issue, the majority could end up having their way always.
It is for this reason, he says, that the framers of the Constitution embraced the idea of representative democracy over the kind of direct democracy that referendums borrow from. What a representative ideally does is to act as mixture of interests. “I may not agree with the person standing to my right on healthcare and on education, but I agree with my neighbor on how juveniles are to be treated. So what the representative then does is that he becomes a merger of interests. He merges the interests of his constituents.”
Importantly, he says, for a representative to act as a merger of interests, he or she should not act as a continuous pollster, merely collecting opinions from constituents and basing his decisions on them. “He or she must in fact act in what his or his best judgement is.”
But this brings up the most frequently heard complaint in the country today: that politicians do not hear their constituents, that promises made at election time remain unfulfilled, and a profound disconnect exists between the voting public and their representatives. Kashyap counters it, and says that given the infrastructure of political opposition bolstered by freedom of speech and the freedom to protest, there are many mechanisms short of referendums for making citizen voices heard.
Krishnaswamy observes that referendum-style direct polling isn’t the answer to citizen voices going unheard. The solution to such a situation, he says, is initiative-based recall, a provision that has merited attention before, including from the National Commission to Review the Workings of the Constitution set up in 2000. “If for any reason your representative is not representing you or has lost connection with his or her constituency, they should no longer be the representative. The answer is not to hold a referendum.”
The most alarming consequence of calls for referendums, points out Kashyap, arise when we leave aside national referendums and arrive at regional ones such as Kejriwal has called for. “Today some part of the territory may want a referendum in order to have more rights (union territory being converted into a state). Tomorrow a part of the territory may want to have a referendum for leaving Indian Union. Then another part will do the same.” In a country where the call for secession has arisen numerous times in the past, the door to a referendum could open up to unintended paths. Leaving aside the merits or demerits of the various such calls, the question remains whether the Delhi CM and others who issue calls for referendums have foreseen and are ready to accept all the consequences of calls for referendums.