AAP’s stAtehood referendum unconstitutionAl: exPerts
‘44th Amendment Bill proposed a legislation for referendum, but that part of the Bill was never passed.’
The Aam Aadmi Party’s plan to hold a referendum to decide the issue of Delhi’s statehood is unconstitutional in nature, apart from being an attempt to set a bad precedent, say legal experts.
“The Constitution does not allow a referendum. It was discussed in the Constituent Assembly but no provision was made for it. Only if Parliament decides, then can there be a referendum on some issue,” constitutional expert and political scientist Subhash C. Kashyap told The Sunday Guardian. “Also, a referendum would set a dangerous precedent as Kashmir may raise a demand for one. States across the country may want cessation,” he added.
“There is no provision in the Constitution for a referendum,” said Biswajit Bhattacharya, a former Addition- al Solicitor General of India.
Former AAP Law Minister Somnath Bharti tweeted on Thursday that a referendum is allowed under the 44th Amendment of the Constitution. “In the 44th amendment, under section 2, if we can guarantee people social, economic, political justice, ensure their freedom of speech and not harm any fundamental right, then we may conduct a referendum, which is basically knowing what the people want,” AAP spokesman Deepak Bajpai told this newspaper.
The 44th Amendment Bill of 1978 was brought to nullify the changes made to the Constitution by the 42nd Amendment in 1976, at the height of the Emergency. The Bill primarily stated that the Fundamental Rights guaranteed by Articles 20 and 21 cannot be suspended, apart from removing Right to Property from the list of Fundamental Rights. The 44th Amendment Bill reads: “Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.
“2. It is, therefore, proposed to provide that certain changes in the Constitution which would have the effect 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, 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 fifty-one per cent of the electorate participate. Article 368 is being amended to ensure this.”
However, according to Dr Kashyap, “The 44th Amendment Bill had proposed a legislation for a referendum, but that part of the Bill was never passed.”
AAP seems to have not taken this into account.
AAP has sometimes involved its voters in its decision making processes, but experts believe that the party may have gone too far this time. “Delhi is a union territory, which is by definition Centrally administrated. One cannot seek a popular vote to change the character of a territory from a Centre-administrated to not Centre-administrated,” said Kashyap.
However, political commentator and analyst Shahid Siddiqui argued that AAP leaders were actually pressing for an “opinion poll”. “Under the Constitution, a referendum is not legal. What they are conducting should be called an opinion poll. Even if they do conduct what they call a ‘referendum’, it can have no impact on the Central government. What Kejriwal should do instead is build public opinion. He should present arguments, facts, economic data to convince people and Parliament that statehood is essential, and in interest of the people,” said Siddiqui.
Delhi Chief Minister Arvind Kejriwal has directed the urban development and the legal departments to look into the feasibility and legality of holding a referendum.
In the history of independent India, only once was a referendum held — in Goa, in 1967, to decide whether the then Portuguese colony wanted to merge with Maharashtra or remain a separate state. During colonial rule, the district of Sylhet in Assam was also partitioned with the aid of a referendum, with most of the district transferred to Pakistan. “Even though Congress leaders like Jawaharlal Nehru and Assam’s Golap Borbora opposed the result due to reports of malpractice, most of Sylhet was transferred to Pakistan after the referendum went in favour of a separate Muslim state by 55,000 votes,” said Bidyut Chakrabarty, former dean of the Faculty of Social Sciences and former head of the Department of Political Science, University of Delhi.
“All this happened in June 1947 even as the drafting committee was framing the Constitution. Perhaps this bitter experience prevented leaders from including the possibility of a referendum as a means to ascertain public opinion. In Kashmir, too, when Jinnah wanted a referendum, Nehru and other Congress leaders wanted the United Nations to step in,” Chakrabarty added. After a brief lull, Uttar Pradesh has plunged back into the realms of lawlessness and it is aggressive favouritism and unbridled casteism, better known as Yadavisation, in the police force that is responsible for the state of affairs. According to UP Home Department sources, a majority of the police stations and districts in UP are headed by Yadav officers or officers loyal only to the Yadav family that heads the ruling Samajwadi Party. In cities like Lucknow, Kanpur, Kannauj, Farukkhabad and Etawah, more than half the police stations are headed by Yadavs. In Lucknow, for instance, 32 of the 42 police stations are run by Yadavs.
“In the present regime, there is absolutely no consideration for ability and merit. It is the surname alone that matters. In such a situation, how can anyone expect the police force to keep criminals in check? An officer can work only if his subordinates take orders from him and he is allowed to work without fear,” said a senior IPS officer.
Chief Minister Akhilesh Yadav even brought two Yadav officers, Yashasvi Yadav and Pradeep Yadav, on deputation form other state cadres. Yashaswi Yadav of the Maharashtra cadre was made Kanpur police chief, and during his tenure he triggered a major doctors’ strike over his high-handedness. Pradeep Yadav was brought in from Punjab and a sting operation by a TV channel showed him drunk in a hotel.
“The police force in UP has been completely politicised and the hierarchy in the force has been dismantled badly. Yadav officers do not obey and respect their seniors and it is near anarchy. In Badaun, all five men accused of raping and murdering two sisters belonged to the Yadav community, and from day one, there was pressure to ‘go soft on the accused,’” said a retired DGP.
In Shahjahanpur, where a journalist was set on fire last month, the main accused is UP minister Ram Murti Varma, who belongs to the powerful Kurmi community. As the SP does not have a Kurmi leader of stature, the government is defending Varma. A video recording of the journalist’s dying declaration clearly shows him saying that the minister got the police to set him on fire, but the minister has not even been questioned.
The mother of a journalist was set on fire by the SO in Barabanki this week after a failed rape attempt. The woman directed blamed the SO, Rai Sahib Yadav, but no action has yet been taken.
In western UP, communal clashes are being triggered by incidents that are shockingly trivial. In Baghpat, two children playing marbles got into an argument and one of them turned abusive. Their fathers intervened and then their families joined in. Within half an hour, the clash took a communal colour, leaving nine injured. In Meerut, a car scratched past a motorcycle and the incident escalated into a communal clash. The accused were Yadavs, and no arrests were made.
“Communal hatred and caste clashes are being fuelled by inefficient officers in the force. If police can get away with murders—literally—then what is stopping criminals from having their way? I am worried about the turn that this situation will take in the coming months when panchayat and then Assembly elections are held,” said another senior police official.
“The ruling party is taking decisions regarding transfers on very narrow considerations,” BJP spokesman Vijay Bahadur Pathak said, “It is clear that criminals feel bold enough to take on the police, and there is no fear of the law. Even police officers are on a crime spree because they know they have a saviour in the government.”