Aftershocks of Emergency: When referendum almost made it to Constitution

While the long-winding debates in the two houses saw several interesting friendly and not-so-friendly exchanges among the MPs, the idea had to be dropped with then Law Minister Shanti Bhushan himself admitting on several occasions that he could probably not project the idea properly.

New Delhi: Founding fathers of the Constitution of India fought hard to keep 'Referendum' out of it, but it almost made it to the statute in 1978 in the aftermath of Emergency.

The then Janata government proposed 'referendum' being part of the Constitution as an additional 'safeguard' to thwart any repeat of Emergency-like situation and even got it passed in the Lok Sabha, but the idea had to be dropped as it could not cut the mustard in the Rajya Sabha.

Several Janata Party leaders and their allies were also not very comfortable with the idea of going back to the public despite having their own government being in power.

The Constitution Amendment Bill of 1978, proposed by the then Law Minister Shanti Bhushan, cited the Emergency as an example when fundamental rights, including those of life and liberty, granted to citizens by the Constitution can be taken away by a transient majority.

It said that it was necessary to provide adequate safeguards against the recurrence of such a contingency in future and to ensure to people themselves an effective voice in determining the form of government under which they are to live.

The bill sought that "certain changes" in the Constitution can be made only if they are approved by the people of India by a majority of votes at a referendum in which at least 51 per cent of the electorate participate.

It would have been applicable for Constitutional amendments that were capable of impairing its secular or democratic character, abridging or taking away fundamental rights prejudicing or impeding free and fair elections on the basis of adult suffrage and compromising the independence of judiciary.

Bhushan faced strong opposition in Parliament, including from some of his own colleagues, and many asked was it not akin to not trusting the mandate already given by people while electing the government.

Some MPs also raised question of huge expenses that could be incurred by going to the public again and again, while some suspected a "referendum" could be used by the government in power to push majority agenda like imposition of Hindi etc.

A few supported the idea but said the referendum should be for 75 per cent of voters, while a few others went out to demand that the Constitution also mostly provide for a referendum provision giving people the power to recall an MP or a government if they were not satisfied with their work.

While the long-winding debates in the two houses saw several interesting friendly and not-so-friendly exchanges among the MPs, the idea had to be dropped with the minister himself admitting on several occasions that he could probably not project the idea properly.

This was also the first time in the country's parliamentary history that a Constitution Amendment Bill passed by the Lok Sabha was returned by the Rajya Sabha and the bill had to be changed according to the portions rejected by the house of elders.

During one such exchange, he asked A R Antulay, then Congress Rajya Sabha MP, if he would accept if it is passed by two-third majority of two houses of Parliament that he was a "small girl" and should there not be a provision to get it corrected.

Antulay responded jokingly what the minister will do if it is passed by Parliament that Bhushan is "an old girl".

Bhushan replied that he would not challenge it, to which Antulay replied still he was not convinced that the Supreme Court should get into it.

Bhupesh Gupta, a Left MP, joined the banter and said that he was quite sure Antulay will welcome it if the Supreme Court says he is a small girl.

In the Lok Sabha also, Bhushan's referendum proposal triggered an intense debate and some of the most interesting nuggets came from socialist MP H V Kamath, who was also a member of the Constituent Assembly when the Constitution was being framed.

Kamath, known for joining almost all discussions in the Lok Sabha and in the Constituent Assembly before that, suggested to Bhushan that the referendum should be successful only with 75 per cent of votes though he could also agree to one-third support of electors.

In the Constituent Assembly, where he was among the few members to strongly oppose any Emergency provision being added, he had also suggested that voters of a constituency should be given power to recall their MP or for failure to properly discharge his or her duties.

Kamath's proposal was rejected.

The original draft of the Constitution did not provide for direct voting by people on law-making matters through a referendum, but several members in the Constituent Assembly called for it on issues like national language, national script, national anthem, international numerals and cow slaughter.

Some members said that a referendum could empower sovereignty of people and address adverse issues arising from absolute power, while others proposed it as a tool to handle situations when legislature and executive are not on the same page.

Mahavir Tyagi, elected to the Constituent Assembly from the United Provinces on a Congress Party ticket, advocated for the Constitution empowering people with the right to overthrow a government which acts destructively against the rights of people.

Several members cited examples from other countries, including Switzerland, US, Canada and Ireland to call for a referendum provision, but others opposed it vehemently as unpractical, expensive and restrictive.

President Rajendra Prasad rejected all those demands citing lack of any provision for referendum in the Constitution.

B R Ambedkar was very categorical: "The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum".

He said the powers of amendment are left with the central and provincial legislatures.

Almost similar logics came up in Parliament nearly 30 years later in 1978 in favour of referendum, but they met similar opposition with one additional point made by most anti-referendum voices -- even general elections hardly see more than 50 per cent voting and expecting more than 50 per cent electors voting in a referendum was unthinkable.