Before the various Hon’ble High Courts
and finally before the Supreme Court

PUBLIC INTEREST PETITION
on
Sovereign right of the people to information,
and reforms through referendum

Rejecting Gandhi, an exploitative Constitution was authenticated in the name of the people in criminal breach of their trust. This has resulted in colossal damage to the nation. Vested interests now do not want to correct it. The sovereign people have a legal and ethical right to institute true democracy through referendum.

SATYAMEVA JAYATE

Summary
The people, being the sovereign, have the right to all public information except that restricted by the society in public interest. The petitioners pray that the Hon’ble High Courts may issue writs directing every local government to furnish lists of categories of public information that it would like to restrict in public interest to its local court and the state government in the High Court. The courts may scrutinise on behalf of society whether restricting information of a particular category and the period proposed to be restricted was in public interest or not. This will be a legitimate, democratic process for introducing transparency in governance.
 
The Constituent Assembly, without meaningfully ascertaining the wishes of the people, imposed on them an exploitative Constitution based on centralised, non-transparent and bureaucratised colonial institutions. If the common people had been consulted, they would clearly have demanded true democracy in which power flows upward from the people as advocated by Gandhi and practised in the best democracies of the world such as the Swiss. Authenticating an anti-people Constitution in the name of the people, amounts, in law, to criminal breach of trust. The Constitution, as a result, lacks legitimacy.
 
Based on Indian democratic ethos combined with tested details from the best functioning democracies, the petitioners have prepared a draft "Constitution for Free Bharat, (India), 2000". They pray that the Hon’ble High Courts may issue writs directing wide public consultations on the proposed Constitution and, based on them, refine it. The Hon’ble Supreme Court may thereafter issue a writ directing referendum along with the next national election on the present versus the proposed Constitution as thus refined. If the people vote in favour of proposed Constitution, the Hon’ble Supreme Court may authenticate it, this time truly, in the name of the people.
 
Grounds
The nation is heading towards total collapse of governance. Anarchy and balkanisation cannot be averted unless the present anti-people Constitution based on exploitative colonial institution is replaced by a truly democratic one in which power flows upward from the people as advocated by Gandhi and practised in the best democracies of the world. The people, being the sovereign, have the right to all public information except that restricted by society in public interest, and to review the Constitution through referendum, the supreme sovereign right of the people intrinsic to democracy. Hence this petition.

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Before the various Hon’ble High Courts
and finally before the Supreme Court
PUBLIC INTEREST PETITION
on
Sovereign right of the people to information,
and reforms through referendum

May it please your Lordships:

1. Whereas when India attained independence, a Constituent Assembly consisting of eminent national leaders was constituted to prepare a Constitution. The Constituent Assembly, after due deliberation, prepared the "Constitution of India" and on November 26, 1949 adopted and authenticated it in the name of "We, the people of India". The fact that the Constitution was authenticated in the name of the people clearly establishes that the people are the sovereign, and, in law, all authority flows from them.
 
2. And whereas the Constitution is largely based on the Government of India Act of 1935, promulgated by the colonial rulers to grant limited self-rule for pacifying mounting pressure for independence. The Government of India Act, 1935, provided for Westminster type legislatures, central and state governments controlling resources and decision-making, non-transparency, and a powerful bureaucracy ruling over the people at the local level. The Constitution adopted for independent India has a similar structure. The Official Secrets Act, 1923, and other oppressive colonial laws were retained, and the colonial All India and State Services sanctified by the Constitution.
 
3. And whereas except for fundamental rights declared sacrosanct as the basic structure by the Supreme Court in Keshvanand Bharati versus the State, the Constitution providing for centralised control of resources, non-transparency and an overbearing state bureaucracy is clearly anti-people and anti-democracy.
 
4. And whereas the Constitution, in essence, states that "We, the people of India" assign all our resources to the Union and state governments, authorise our elected servants to take all decisions on our behalf, keep the decisions secret from us, and appoint an overbearing state bureaucracy, not accountable to us, to rule over us at the local level. We, the people of India, may be poor and illiterate but would have to be morons to give to ourselves, such an anti-people Constitution. We, the people, never gave the Constitution to ourselves. It was imposed on us and authenticated in our name in violation of our trust. A document authenticated in violation of trust lacks legitimacy. It is similar to an attorney obtaining a client’s thumb impression to usurp all his or her property. The client can approach the courts and get the conduct of the attorney declared as a criminal breach of trust, and the document fraudulent. All those who praise the Constitution are indulging in the intellectual dishonesty.

5 And whereas basic principles of management dictate that the executive, legislature and judiciary should be distinct and separate from each other as checks and balances of democracy. In the Westminster system, with mixed up executive and legislature, every legislator is a potential minister. This fosters jockeying for power, abuse of authority, horse-trading, instability, jumbo cabinets and bribing legislators. It has created serious problems of abuse of authority, instability and lack of accountability in most countries, including India.
 
6. And whereas any sovereign while appointing a representative to govern on his behalf, would direct that he be kept informed of important matters, consulted on such matters as he desired, would participate in decision-making in matters he specified, and would himself decide when he so chose. In democracy, these become the sovereign rights of the people to information, consultation through public hearings, participation through participatory councils, and decision-making through referendums. These are sovereign rights of the people intrinsic to democracy, higher than fundamental rights, and exist even if not provided in a Constitution.
 
7. And whereas the only defination of democracy can be that the people being sovereign, decide how the nation should be governed. If the people were to decide, they would retain adequate resources at the local level for handling all local matters such as administration of justice, police, education, health-care, land, water systems and forests. They would institute effective transparency mechanisms covering the sovereign rights of the people to information, consultation, participation, and referendum. They would devolve the remaining resources to the state and national governments for providing higher level infrastructure, support to regions with inadequate resources, and to coordinate but not interfere in local matters. They would make both the elected executive and the appointed public servants at all levels —- local, state and national — directly accountable to them and not via a higher authority.
 
8. And whereas derived from simple logic, this can be said to be the basic structure of universal democracy. It is practised in the best democracies of the world such as Swiss. There can be no other structure of democracy. Based on 4000 year democratic ethos and experience of India, symbolised in Ram Raj, and documented in various ancient scriptures and temple engravings, many Indian social thinkers of this century such as Swami Vivekanand, Rabindra Nath Tagore, Subhash Chandra Bose, Aurobindo Ghosh and Gandhi advocated such true democracy. It is articulated in the book "Gandhian Constitution for Free India" by Prof. Shriman Narayan with acceptance foreword by Gandhi, published in 1946, available in the Parliament Library. This book has recently been edited, annotated, republished and put on its website by the petitioners. India, not Britain, is truly the mother of democracy.

10. And whereas had the Constituent Assembly organised consultations, public hearings and local referendums, the common people would clearly have voted in favour of village and district governments controlling local resources to handle all local matters as advocated by Gandhi. The Constituent Assembly evidently did not ascertain the wishes of the people, imposed the Constitution based on its own perceptions, and authenticated it in the name of the people. Authentication of an anti-people Constitution in the name of the people without ascertaining their wishes amounts, in law, to criminal breach of trust.
 
11. And whereas not only did the Constituent Assembly institute an anti-people centralised, non-transparent and bureaucratised Constitution, the then leadership ignoring Gandhi’s "grassroots socialism", and impressed by the Soviet type of "centralised socialism", also imposed centralised planning and a controlled economy. It thus created a mixed economy in a mixed-up polity. Such an economic system choked all initiatives of the people. Huge loans from international organisations got consumed mostly in overheads and little in creating productive assets. Such mismanagement loaded the nation with massive debt servicing liabilities and led to pervasive social and environmental degeneration and economic disaster.
 
12. And whereas a decade ago facing bankruptcy, the political leadership, opened the economy and is claiming credit for reforms, when it truly is correction of past blunders. The nation is however till today wedded to the other major blunders, namely, exploitative colonial institutions and Soviet type abusive centralised planning. As a result, the opening of the economy is giving a false sense of prosperity, but is, in reality, fostering economic domination by the rich nations, increased abuse of authority, pervasive corruption, endemic poverty, environmental degradation and lawlessness. Carrying over 80 percent wasteful overheads of a bloated bureaucracy, wastage, corruption driven faulty decisions, and delayed projects, the common people will remain in the poverty trap for all time. The so-called discipline of development economics is truly poverty development economics. (See illustration on the cover sheet)
 
13. And whereas criminalisation of politics, abuse of police authority, accumulation of over three crore cases in courts, unemployment amongst educated youth, and increasing poverty have led to escalating crime, and violent movements such as NAXAL and ULFA. These are symptoms of failing governance bordering on anarchy. Instead of correcting the faulty, exploitative institutions of governance, the Union government is planning to enact laws more repressive that the dreaded erstwhile Terrorist and Disruptive Activities Act.
 
14. And whereas unless institutional reforms providing for true local empowerment and local accountability through effective transparency mechanisms are instituted soon to reduce wasteful overheads, the nation will drift into anarchy, balkanisation and economic domination by rich nations worse than colonial subjugation. It may then be too late to save it.
 
15. And whereas power having got centralised, the political system is unwilling and unable to return it to where it belongs —- the people. Movements launched in the past, such as those led by Dr Manohar Lohia and Jai Prakash Narayan, failed. The 73rd and 74th constitutional amendments promulgated with great fanfare have, because of reluctance of legislators to give up power, instituted a dysfunctional diarchy of the district bureaucracy accountable to the state government and elected district panchayats accountable to the people, thus further diluting accountability. The political system has, during 50 years, cunningly evaded instituting effective transparency laws. While promulgating the constitutional amendments, legislators have skillfully made themselves ex officio members on local councils violating the scheme of the Constitution that a person can hold only one elective office. They also sanctioned themselves one crore rupees each for local programmes, later made two, and now likely to be further increased. By thus controlling executive work, legislators violate local jurisdictions, and vitiate their watchdog functions. Such abuse can now only keep increasing. There is little possibility of legislatures instituting truly democratic reforms.
 
16. And whereas many Chief Ministers, notably those of Kashmir, Punjab, Northeast and Southern states are, in the name of federalism, demanding greater autonomy to states. They however do not want to give control over local resources and decision-making to local governments. Democracy is deeper than federalism. Autocratic states can federate but in democracy power flows from the people to local governments, while only residual functions are assigned to state and national governments. Democracy is truly a federation of local governments!
 
17. And whereas recognising that the Constitution has shortcomings, the Union government has constituted a Commission for Review of the Working of the Constitution. The Commission has hardly held any consultations with social organisations and local communities. Furthermore, even if the Commission decides to make recommendations that empower the people, the parliament is not likely to approve them. Thus, while the initiative to review the Constitution is appreciated, the process has little to offer from the perspective of the people.
 
18. And whereas the only method by which truly democratic reforms can now be instituted, is by the people through referendum. The people, being the sovereign, have the intrinsic sovereign right to institute reforms through referendums. If it not be so, it would imply that an anti-people Constitution in the form of a Frankenstein or Bhasmasur had been created that is destroying its creator —- the people, and that the sovereign people are impotent to do anything about it. A Constitution that makes the sovereign impotent is bad law. Referendum is a right of the people to overrule their elected servants, and not a right of the elected servants to abuse authority such as happened in Philippines and Pakistan were dictators held rigged referendums to legitimise their rule for life. Similarly, in Sri Lanka where the parliament has power to direct referendum through two-third majority, it is being politicised to deny the Tamils their genuine democratic rights of control over their local resources and decision-making.
 
19. And whereas to facilitate reforms by the people through referendums, the petitioners conceptualised a new institution, Sovereign Rights Commission with authority to direct referendums, except on issues fundamental to democracy or the integrity of the nation. There can, for example, be no referendum on making the state theocratic or a region seceding.
 
20 And whereas Thomas Jefferson had said that he could not think of anyone but the people themselves as the ultimate repository of all authority of society. Such Sovereign Rights Commissions will, like Gandhi, function as the non-corruptible conscience keeper of the state based on values of the society as a whole.
 
21 Impressed by the concept, Shri PA Sangma, the then Speaker Lok Sabha, circulated a document of the petitioners on democratic reforms in the golden jubilee special session of parliament held in August 1997 with following message:
 
"I compliment the Lal Bahadur Shastri Memorial Foundation and People First on its discussion paper, "The Constitution, the Nation, the People". The thoughts contained in the paper reflect Gandhian ideals. The paper calls for a whole new system of governance based on truly autonomous democratic institutions upward from villages.
 
It also calls for the creation of a Sovereign Rights Commission and referendum to bring about changes through proactive initiatives on the part of citizens of the country. The paper is indeed interesting and thought-provoking and deserves nationwide debate when we celebrate the golden jubilee of our independence".
 
The legislators ignored the document. Justice MN Venkatachaliah, former Chief Justice of India, presently Chairman of the Constitution Review Commission, too, in a message, praised the concept and process for reforms in the following words:
 
"Our centralised democracy based on colonial institutions is exploitative and clearly at the root of all problems confronting the nation. If we had listened to Gandhi and instituted a democracy in which every village and district functioned as a self-sustaining entity, the nation would have been different today.
 
In democracies, the people are the sovereign and have implicit sovereign right to information, consultation, participation and referendum. Referendum is the supreme sovereign right and exists even if not specifically provided in a constitution.
 
People First deserves credit for conceptualising Sovereign Rights Commissions for bringing about change through the will of the common people. This would be a legitimate, non-violent method of transforming our society."
 
The interview of Shri KS Sudershan, Chief of the RSS, published in Outlook of March 27, 2000 goes as follows;
 
You have called for a total change in the Constitution. Do you have an alternative in mind? "Democracy is not a new concept for us. It has been there ever since the Vedic period. During that period, the king used to be elected every two years. The gram panchayat used to get its mandate from religious scriptures called dharmashastras."
 
Should it now also draw authority from the dharmashastra? "No, the Constitution we frame will be our dharmashastra. Our social ills came much later. We should look at our bright past and give it a new shape according to the changed times."
 
Shri Digvijay Singh, Chief Minister, Madhya Pradesh, has made public statements that India needs Gandhian democracy. Many political leaders privately voice similar sentiments, but for misplaced political reasons are reluctant to say so.
 
22 And whereas to take the movement forward, the petitioners, based on the democratic experience of India, combined with tested details from the best functioning democracies of the world, have prepared a truly democratic draft constitution suited for India, titled "Constitution for Free Bharat (India), 2000". A summary of it is attached. The full text can be visited at our website. This draft Constitution needs to be widely debated and, based on the response, further refined. The preference of the people may also be ascertained through referendums held along with local and state elections. The present Constitution versus the proposed Constitution as finally refined can then be placed before the people for adoption through referendum held along with the next national election. If the people vote in favour of the present Constitution, it will get validated. If they vote in favour of the proposed Constitution, the Hon’ble Supreme Court can authenticate it as the law of the land, this time truly, in the name of the people.
 
23 And whereas it is important that after 50 years of the working of the Constitution and at the turn of the millennium when the nation is experiencing all round failure of governance, a process for legitimate review of the Constitution is initiated.
 
24 And whereas, with the intention of holistically analysing the issues, the petitioners have touched upon some sensitive issues, such as the impasse of Kashmir, the instability in South Asia, the struggle of the people of Tibet and China against an oppressive rule, and support of USA, the greatest proponent of democracy, to a neo fascist regime in China. Being a people’s document, it has no bearing on diplomatic postures of nations. Such issues need to be debated by the global society.
 
25 And whereas the soverign people of India, being totally disillusioned by the abuse of the people and their resources by corrupted, self-seeking higher level politcs, bureacracy and other vested interests, have decided to restore local control over these, as it was prior to the East India Company destroying them to further its commercial interests, and later sanctified by British imperialism. Significantly, the Muslim rule, except for some increase in tax on village governments, kept them intact. Our own government must protect our national interests rather then emulate foreign traders who came to loot India.
 
26 Now therefore the petitioners, on behalf of the abused people of India, pray as follows:
 
PRAYERS