LLM candidate- South Asian University, New Delhi
Recently, Chile had a historic referendum for adopting a new constitution. Italy too had a constitutional referendum to reduce the size of the Parliament on 20-21 Sep 2020. In today’s world more than 2/3 of world population in 133 countries belongs to the “democratic” world. It means that there is an increase in direct say of citizens in the policies of the government. In last 25 years participatory democracy has seen tremendous rise. Thus, more than half of all referendums ever held in history fall into this period. A referendum can be called to address constitutional, territorial, moral or other issues. There are different kinds of referendums i.e., obligatory referendum, popular referendum, authorities’ referendum, popular referendum etc.
In a representative democracy like India, referendum remains a theoretical construct, except for few instances. Its means that citizens do not get chance to participate in referendum initiated by the authorities. However, nothing prevents citizens from initiating a referendum proposal to change the law or to prevent the change in law. One such instance in India is the is the recitation of preamble in the protest against the Citizenship (Amendment) Act, 2019 (CAA hereinafter).
A nationwide protest began in India against the CAA in December 2020. The Supreme Court of India has received 140 petitions challenging the constitutionality of CAA. Several States and a Union Territory have passed anti-CAA resolutions. Even a village council in the State of Maharashtra passed an anti-CAA resolution. India is a federal country and the power to legislate on citizenship lies with the Central Government. Therefore, as per the present jurisprudence, , these anti or pro CAA resolutions by State Legislative Assemblies, Union Territories or village councils will have no legal effect as such and the provincial governments cannot deny the implementation of this law. However, these resolutions have their own importance. Both, the members of the Lok Sabha (Lower House) and of the State Legislative Assemblies are directly elected by the people. Both represent the will of the people of their respective jurisdictions.
These anti-CAA resolutions and protest since December 2019 reinforces the fact that the central government should reconsider its decision. This denial of citizenship law which hits at the core of the constitutional values can be termed as ‘popular referendum proposal’. A popular referendum proposal depicts the rights of citizens to petition the authorities to reconsider their decision. Thousands of people in Delhi, Mumbai, Hyderabad and other cities, lawyers of the Supreme Court and High Court, protests laid exclusively by woman reclaimed the intrinsic values of the Indian Constitution by reading out its preamble. The importance of this act reading preamble lies in the fact that nowhere in the constitutional history of India; people have gathered to read the constitution or any of its parts in such a large number.
One of the critics of the constitutions is that the constituent assembly which drafted the constitution did not represent the will of the people. Damodar Swarup Seth, a member of the constituent assembly raised a motion as follows;
“Whereas the present Constituent Assembly was not elected on the basis of adult franchise and whereas the final constitution of free India should be based on the will of the entire people of India, this Constituent Assembly resolves that while it should continue to function as Parliament of the Indian Union, necessary arrangements should be made for convening a new Constituent Assembly to be elected on the basis of adult franchise and that the Draft Constitution prepared by the Drafting Committee be placed before it for its consideration and adoption with such amendments as it may deem necessary.”
It is true that the general public did not get any opportunity to have a say in the entire process of drafting and adoption of the Constitution. Since, it was formerly adopted by the Constituent Assembly itself, no formality was left to be completed by the first Session of the Lok Sabha that commenced on 13 May 1952. It seems that this myth has been broken. Indians have reclaimed the supreme authority of the constitution; that too loud and clear. The anti-CAA protesters read the Preamble to the Constitution not just because it is the most accessible part of the Constitution, but because it is the purest distillation of what the Constitution is supposed to be. The protesters are reminding those in power that constitutional government should not just follow the text of the Constitution but also adhere to its spirit and values in practice. Granville Austin has described the Indian Constitution as a social document and in the Vasudhaiva Kutumbakam (i.e., world is one family)of the Constitution, people again solemn to grant each other Justice, Liberty, Equality and Fraternity.
Views are personal.