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Referendum for Delhi: More questions than answers

By Dr S Saraswathi. Dated: 7/25/2015 3:03:48 PM

Delhi Chief Minister Arvind Kejriwal's call for a referendum on the issue of full statehood for the capital city seems to critics another political gimmick of this over-enthusiastic Aam Admi Party to share power with the people. The intentions and timing are irrelevant in debating the pros and cons of introducing referendum and paving way for direct democracy.
The Greece-style call follows the party's professed practice of conducting surveys and polls to ascertain people's views on the choice of candidates for election, and the aborted attempts at convening Mohalla Sabhas for public discussion of public issues to guide governmental decision-making. Experiments in widening the scope for people's participation in policy matters are certainly a healthy sign of a vibrant democracy. But, we have to tread carefully and gradually giving due consideration to the possible repercussions of any hasty step.
Apparently, Kejriwal is said to have sent a note to various departments asking them to draft a law and create machinery for the practice of holding referendums. Urban Development Department is asked to come up with a feasibility report and indicate a time schedule.
The issue raised now is a national issue and definitely not local in two aspects. One is the very question of according statehood for the capital city which is the national capital of equal importance to all the States in India. The other is the use of referendum, a device not provided in the Constitution, as a method of deciding this issue. The significance of the national capital is not restricted to the territory and people residing in that territory.
Referendum, apparently a most democratic instrument for decision-making, had its beginning in the turbulent days of the French revolutionaries as a technique to achieve their goals. Plebiscite was an innovation of Jacobins to assist governments described as "totalitarian democracies" to achieve legitimacy. People were asked to vote on a single specific issue mostly to "approve" or "disapprove" a proposition.
Referendum as a political device developed in Switzerland in mid-19th century and took the place of traditional assemblies of all voters that met for taking decisions on national issues. It was intended to assist and not to substitute representative bodies. Through referendum, policy decisions were ratified. The rules were clear on convening and conducting referendums. Switzerland has become the model for efficient practice of referendum as a democratic tool. Smallness of the nation and its familiarity with organizing people's assemblies made referendum an acceptable alternative to popular meetings that were not suited to take federal decisions.
Many countries all over the world are in recent decades experiencing movements for greater and direct participation of people in governance. They assume different forms. On-line parties are formed in Canada, Australia, New Zealand, and Sweden to mention a few. Direct democracy is the new mantra that has given rise to new political parties in Sweden, Ireland, New Zealand, Poland, Uganda and Argentina in different continents.
They are evidence of the growing popularity of the concept of inclusive democracy. Representative system, parliaments and legislative assemblies, adult franchise, majority decisions, independent election machinery, and decentralization have become inadequate to reflect the will of the people. Rather, every one of these institutions has become pliable to the power of the powerful to move away from people's choices and aspirations.
Consequently, it is realized that the present representative system of democracy is not the end of our road and we have to search for new paths to reach inclusive and equalitarian democracy, which is provided but not guaranteed now. Referendum seems a panacea in this context to make democracy work democratically.
So far, so good! But, will it deliver? Is it a feasible alternative? What are its limits and limitations? There are more questions than answers. These must be addressed before we plunge into action.
One of the signatories to the Declaration of Independence in the US has stated that "pure democracy is very subject to caprice and the madness of popular rage". Alexander Hamilton remarked that experience had disproved that pure democracy was a perfect form of government. He cited that ancient democracies practised direct participation of people in decision-making, but "their very character was tyranny, their figure deformity".
World Wars and dictatorships in Europe reopened the discourse on democracy. President Theodore Roosevelt in his speech at the Ohio Constitutional Convention held in 1912 on the Charter of Democracy asserted: "I believe in the initiative and referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative" - a statement indicating possible and probable degeneration of the representative system to characterise the voice of the people.
Today, in the US, initiative is an important way of influencing public policy. On several crucial issues like affirmative action, educational reforms, tax relief, drug policy, environmental concerns and so on, initiative has been used for action.
There is no referendum at the federal level in the US, but at least 24 States have constitutional provision for referendum. Many local and city governments provide for both referendum and citizens' initiative.
In 1978, during the Janata rule at the Centre, Shanti Bhushan brought the 45th Constitutional Amendment Bill (later adopted as 44th amendment) which provided for referendum. In the Statement of Objectives, it was mentioned that certain changes in the Constitution could not be made unless "approved by the people of India by a majority of votes at a referendum in which at least 51% of the electorate participate".
This bill envisaged referendum for making changes in the Constitution relating to four issues - its secular and democratic character; abridgement or abrogation of fundamental rights, impediment to conduct of free and fair elections, and independence of the judiciary.
The Internal Emergency declared in the mid-1970s necessitated inclusion of adequate safeguards in the Constitution itself to prevent recurrence of such a contingency in future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. It was proposed to include the provision under Article 368 pertaining to Constitutional amendment. But, the bill was defeated in the Rajya Sabha.
Presently, in India, public pressure has become the force behind many legislations, specially in social reforms. Pressure comes directly or through NGOs and interest groups.
The growing need for introducing referendum to directly ascertain people's views also cannot be denied as governments and Parliaments seem to be moving away from the people. However, one cannot be sure that a referendum will reflect the free will of the people given the politics of political party alliances.
With more questions cropping up as we go into the issue, it seems that transparent and accountable political parties, and strict and equal application of the rule of law for all must be our immediate task to lessen the gap between the rulers and the ruled and make the former responsible and responsive to the latter. Referendum and recall are of no use if they can be rigged.
—INFA
(The author is (Former Director, ICSSR, New Delhi)