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No provision for referendum in Constitution

No provision for referendum in Constitution
Delhi Chief Minister Arvind Kejriwal, soon after the referendum results in Britain became public, said that the people of Delhi should also be allowed to have a referendum to express their choice of continuing Delhi as a Union Territory or allow it to become a full-fledged state. 

Whether statehood or Union Territory status is more suitable for Delhi is a matter of debate. To reach a conclusion on this issue through a referendum is an idea to have immediate rejection and political admonition.

It would be most appropriate to quote former British Prime Minister Clement Atlee, who once had once dismissed referendums, saying: "I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and Fascism." 

Atlee would never have thought that the very device he was referring to as alien would one day be used by a Labour Prime Minister like himself David Cameroon) to be a devastating weapon for British economy and its people.

The politics of referendum is always pregnant with seeds of secession and our first Prime Minister Jawaharlal Nehru committed the grave mistake of agreeing to referendum (plebiscite) in Jammu and Kashmir. Nehru’s move, which could have brought about disintegration of India, thankfully did not receive endorsement of his Cabinet and it could never be carried through. 

But still it needed martyrdom of nationalist leaders like Syama Prasad Mookerjee to rename the post of Prime Minister of Jammu and Kashmir as that of the Chief Minister of the state.

His struggle for “Ek Nishaan, Ek Pradhan, Ek Vidhan” remains incomplete as Jammu and Kashmir still has a separate flag, though it’s flown alongside the tricolour, and a separate Constitution, and a separate penal code. 

A large number of people owing allegiance to the nationalist ideals have struggled all these years for the end of article 370 of the Indian Constitution, which guarantees the extraordinary status to the state of Jammu and Kashmir. For such people the very idea of a referendum is anathema, and expectedly they would oppose it tooth and nail albeit through Constitutional methods.

Delhi Chief Minister Arvind Kejriwal must appreciate that our Constitution acknowledges the will of the people through their representatives. Parliament is a custodian of the sense of the nation, and all major decisions have to be made in the Parliament through the process mandated by the Constitution.

 Thus, it should be appreciated that reorganisation of states on the basis of the report of the States Reorganisation Commission, submitted in 1956, was done through the Acts of the Parliament.

During the NDA I government at the Centre, Prime Minister Atal Bihari Vajpayee acceded to the long-pending demand of the people of the hill districts of Uttar Pradesh, Chotanagpur of Bihar, and tribal districts of Madhya Pradesh by creating separate states of Uttarakhand, Jharkhand, and Chhattisgarh.

 However, he did so piloting separate acts of Parliament for each of the states. More importantly, they were taken up in Parliament only after the respective state Assemblies from where they had to be carved out a passed resolution for the same.

The only instance of a so-called referendum in the country dates to the 1960s when the people of the newly integrated Portuguese colony of Goa were asked to give an opinion if they wanted to remain a separate entity or merge with the state of Maharashtra.

 This example is often quoted by Kejriwal to embellish his argument, however, he only tells half of the story. The fact remains that this opinion poll too was held under a Parliamentary act -- The Goa, Daman and Diu (Opinion Poll) Act on December 16, 1966.

Just in case the Chief Minister decides to go for opinion polls on the matter it must be underlined to him that even that has to be conducted under a mandate of the parliament through a Constitutional body like the Election Commission. The other example which the Aam Aadmi Party (AAP) functionaries keep flaunting is that of Sikkim. 

Now, again the referendum in Sikkim was held by the government of the kingdom, which took people’s opinion on joining the Indian Union. The said referendum took place in Sikkim before the Himalayan Kingdom became 22nd state of the Indian Union, thus outside the jurisdiction of the Indian Constitution.

Interpreting the Constitution in the Keshvanand Bharti case in 1973, the Supreme Court said: “The procedure prescribed in Article 368 is the exclusive procedure for the amendment of the Constitution. The word ‘only’ in Article 368 rules out all other procedures for amendment.” 

Making Delhi a state would need amendment of Constitution which can only be done through the Parliament, which as mentioned earlier in the article, is the custodian of the sense of the people of the people of the nation. 

(The writer is general secretary, Delhi State BJP. Views expressed are strictly personal.)

Ashish Sood

Ashish Sood

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