Is Referendum A Viable Option In India?

Baglekar Akash Kumar

(Student, University College of Law, Osmania University)

Email: akashbaglekar@gmail.com

The passing of the Citizenship Amendment Act, 2019 and subsequent statements of implementing the nationwide NRC has induced fear in the minds of minority groups that whether rights would be protected in India?

Under these circumstances, to nip the things in the bud, the question arises whether going to ‘Referendum’ is a viable option in a highly populated, mostly uneducated, pre-conceived notions based country like India?

It is not that the idea of amending the Constitution by the way of ‘Referendum’ didn’t go through the minds of the Constitution framers, but what prevented them was the doctrine of ‘Sovereignty’ which shall be vested and got vested in the Indian Parliament. Indeed, when Article – 368 (Power of Parliament to amend the Constitution) was to be engrafted in the Constitution, Sir B.N. Rao, who was the Constitutional advisor to the Constituent Assembly advised that 3 years from coming into force the Constitution shall be given to the Parliament where it can amend any part of Constitution by means of simple majority and then the present Article – 368 shall come into force after the expiration of 3 years period. But this view was not subscribed by the framers of the Constitution because they had with them the demon of Irish Supreme Court judgment delivered in ‘The State (Ryan) v. Lennon, (1935) I.R. 170’, where the Ireland Parliament which was given the power to amend its Constitution for a period of 8 years by means of simple majority under Article – 50 of Irish Constitution, 1922 and then after the completion of 8 years period to go for Referendum, extended the period till 16 years before the completion of the 8 years grace period. This Amendment was upheld by the Ireland Supreme Court which held that “During the eight years the Oireachats has fullest power of amendment conferred by the Article”. The Irish Constitution in 1937 did away with the above judgement and directly referendum was chosen to amend the Constitution.

Our Constitution framers also had before them the Commonwealth of Australia Act, 1900, a Constitution for Australia which is an Act of British Parliament where Section – 128 of the Act requires that a proposed Constitutional amendment shall be first passed by an absolute majority of both houses of Parliament and then shall be approved by a ‘double majority’, which means that a majority of voters in Australia and then subsequently a majority of voters within a majority of States shall approve the amendment. It is because of this complicated procedure that out of 44 attempts to amend the Constitution since the last 120 years only 8 have been successful, the last successful amendment being in 1977.

Our Constitutional fathers emulated Amendment procedure of the United States Constitution with two minor changes, the first being that 2/3^rd of the members shall be present & voting, and the second being the ratification by half of the States for amending the Constitution under Article – 368. As Pt. Jawaharlal Nehru promised to the nation agrarian reforms on a large scale, the ‘Right to Property’ clause in Fundamental Rights Chapter was like a thorn in the flesh for carrying out the promised reforms, hence humongous amendments to the Constitution happened which often led to a tussle between the then ruling dispensation and the judiciary.

These amendments also led to the evolution of the ‘Basic structure theory’ by the Judiciary. It may be apt to recollect that to avoid the amendment of the Constitution at the ‘whims and fancies’ of the ruling parties, the Janata government through Constitutional (Forty-fifth Amendment) Bill, 1978 tried to bring in the referendum where if any change which would impair the secular or democratic character of the Constitution, abridges fundamental rights of the citizens, affects free & fair elections, transgresses upon the independence of the judiciary, seeks to amend the Article – 368 itself, then such amendment shall be approved by the people of India by referendum by a majority of voters voting at such poll and voters voting shall constitute not less than 51% of the voters entitled to vote at such poll to be conducted by the Election Commission of India. But the bill didn’t pass the muster of the Parliament as the Janta government was in minority in the Rajya Sabha.

Referendum is not suitable to a large country like India because of unnecessary delay, causing huge economic burden, lack of conscious based decision by the people, etc. It is also unfeasible because the Constitution is called a living document which has to live as per the changing needs of time but without losing its sheen.