Democracy, Constitution, Referendum
LEGAL OPINION ON JURISDICTION OF COURTS TO RECOGNIZE PEOPLE’S RIGHT TO REFERENDUM

Many people hold that the failure of governance being witnessed today is primarily due to a fall in ethics. Others blame faulty institutions. All agree that something needs to be urgently done to save the nation from further degeneration. Constitutional reforms are being widely debated these days.

Three-fourths of our Constitution is based on exploitative colonial laws. We added elections and certain rights regarded as fundamental and called it democracy. All authority flows from parliament that controls most resources and decision-making. It devolves resources to state governments that control local matters such as land, police, education and forests. Local governments, now given constitutional status, are still heavily dependent upon the union and state governments and the district bureaucracy. Rights to information, consultation, participation and referendum, sovereign rights of the people in democracies, are not available to them.

The Constituent Assembly by authenticating such an anti-people constitution in the name of "We, the People", unwittingly violated their trust. The legitimacy of a constitution authenticated in violation of trust is questionable.

Since the Constitution has been authenticated in the name of "We, the people", the people clearly are the sovereign. Being the sovereign, they have a right to choose how they may be governed. Given the choice, the common people would first institute local governments that control resources, to handle all local matters including land, police, education and forests. They would devolve the remaining resources to the state and national governments, to provide higher level infrastructure, support regions with inadequate resources, and coordinate but not interfere in local matters. To prevent abuse of authority, they would institute their sovereign rights to information, consultation, participation and referendum.

The above, along with certain rights regarded as fundamental, can be said to be the basic structure of universal democracy. It is practiced in the best democracies of the world, notably the Swiss. In such democracies, the people can make changes in the constitution, laws and practices through referendum.

Gandhi advocated such a democracy. Based on Indian ethos and universal values, he added some powerful features for containing consumption and promoting social justice and equity. These have become highly relevant today for global sustainability.

The people would clearly prefer the executive separate from the legislature, not mixed-up as at present, with the elected chief executives at local, state and national levels, directly accountable to them exclusively for the functions at each level. The elected body would promulgate sound legislation and perform watchdog functions, not share abuse through majority arrogance or coalition politics. The parliamentary system, evolved in the UK through negotiations between the monarch and parliament, then dominated by feudal lords, has serious faults. It has failed in many nations.

In democracies, each government has its own slim bureaucracy, often structured such that the departmental heads are appointed through open selection, on contract, with the approval of the elected body. They, then, do not behave superior to and aloof from the people and enjoy professional autonomy to protect their subordinates from political abuse.

Political leadership of high calibre and impeccable integrity at independence made a serious error of judgement. The people cannot have faith in the present divided, self-seeking politics instituting basic reforms such as true local empowerment, right to information and sound electoral changes. People First holds that the only legitimate method is that the people should institute reforms through referendum. Referendum is the supreme sovereign right of the people, intrinsic to democracy, and exists even if not provided for in a constitution. A procedure is needed for exercising it.

The Constitution being the first law of the land, the people should demand that the Law Commissions at the union and state levels be upgraded as Sovereign Rights Commissions, with authority to direct referendums, except on issues fundamental to democracy and the integrity of the nation. These commissions shall oversee that people’s rights to information, consultation, participation and referendum are properly instituted and are accessible to them. They should be constitutional authorities and their members appointed by a committee of nominees of the concerned superior court and statutory commissions. A legitimate, non-violent process for transforming our society will thus get instituted.

The law should also provide that, if grassroots assemblies (village and urban neighborhood), representing a stipulated number of constituents, after due deliberation, petition for referendum on any issue it will become mandatory. Communities can then also directly raise any issue and, if the aforesaid commissions attempt to block under political or business pressure, referendum on an issue desired by the people, they can demand it.

Many are apprehensive about granting right of referendum to the illiterate. This is based on the colonial attitude that the powerful, rich and educated are superior to the ‘brown’, poor and illiterate. Such attitudes have no place in a democracy. The common people will overwhelmingly vote in favour of issues such as local empowerment and transparency. Is the sovereign vote not superior to that of the representatives, often not acting in the people’s interest?

The political system is unlikely to concede right of referendum to the people. In the opinion of People First, the people can approach the superior courts, seeking a writ (1) authorising the law commissions to direct referendums, or (2) directing a referendum on whether the law commissions may be so authorised. If a view is held that the courts have no jurisdiction, it would imply that a Frankenstein destroying its creator — the people__ has become immortal! Driven to the wall, the people will take to violence. The nation will drift into anarchy. No legal interpretation can make the sovereign impotent. The legal system must act. True local empowerment alone will reduce wasteful overheads, reinvigorate our society, facilitate education and health care, stabilise the population, nurture our rich ethos and culture and eradicate social ills. It will revitalize the environment, strengthen the economy, inculcate pride in the nation and promote regional peace.

New Delhi, March 1999 WE, THE ILLITERATE PEOPLE OF INDIA

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