Changes like Brexit need a super-majority

The government hopes that Parliament will pass a Constitutional amendment for a Goods and Services Tax in the coming monsoon session. Attempts for over a decade have failed to ensure a two-thirds majority in both Houses.

Does this mean India has too many political checks and balances? No, fundamental changes should be difficult. This has just been proved by Brexit, the exit of the UK from the European Union.

The British Constitution is not a written one, and depends on custom and precedent. One new custom is to settle fundamental issues of national integrity by a simple majority in referendums. This has just led to the disaster of Brexit, and may next lead to Scottish exit from the UK.

The Constitutions of India and almost all other countries require a
super-majority (typically three-fifth or two-thirds) for amendments. Ordinary laws can pass by a single vote, but can reflect the heat of the moment rather than cool, considered thought. Constitutions thwart fundamental, difficult-to-reverse decisions from being taken in the heat of the moment, by creating onerous procedures like super-majorities.

Amending the Indian Constitution requires a two-thirds majority in both Houses of Parliament, plus a majority of state legislatures. Moreover, the Supreme Court has prohibited Parliament from any amendment of the “basic structure” of the Constitution.

In the US, a Constitutional amendment requires a two-thirds majority of votes in each House, followed by ratification by three-quarters of the states. In Japan, Constitutional amendments require a two-thirds majority in both Houses followed by a referendum. Germany also requires a two-thirds majority, and in addition several aspects of its basic law cannot be amended at all. France has a complex procedure with different routes, but one route specifies a three-fifth majority of both Houses. Constitutions should be flexible enough to allow fundamental changes, but only after clearing substantial hurdles.

The Brexit referendum was marked by ugly xenophobia. Some intellectuals made arguments for greater sovereignty, but these played a minor role. When economies are in trouble, voters tend to shift from the centre to the fringes, blaming all their woes on ethnic minorities, immigrants and a “foreign hand”. This tendency is visible across European countries, and also in the migration of US voters to radicals like Trump and Sanders.

Now, voters have every right to oust centrist leaders they disapprove of by a simple majority, and install radical ones in their place. But it does not follow that simple majorities should suffice for all decisions. A super-majority should be required to check ill-thought populism and heat-of-the-moment passions that may create major changes that are irreversible, or very difficult to reverse. This logic should apply to any future referendum in Scotland or Wales to secede from the UK.

Referendums are sometimes viewed as the best possible exercise of democracy, since voters are voting directly and not through elected representatives. But this may be quite untrue, as demonstrated vividly by Brexit. This issue was decided by a margin of 51.9% to 48.1%. Such a slim margin could have been reversed had the election been held a week later or earlier, and the mood been slightly different.

Representative democracy is a more indirect form of democracy than the holding of referendums, but despite many flaws is better overall. It is more resistant to ugly populism and false propaganda. A referendum to make India a Hindu state or impose Hindi everywhere may well pass, but should be resisted.

It is a travesty that Boris Johnson, top Conservative campaigner for Brexit and possibly the future prime minister, started backpedalling on any quick change in UK-EU relations after winning the referendum. This showed yet again that, to sway passions, politicians make ridiculous pledges and claims they don’t really mean. That is reason enough to require super majorities.

Many issues are so complex that the common man cannot be expected to come up with a considered view. Besides, decision-making requires balancing different considerations, and a referendum is a single-point instrument that sabotages balance. For instance, if you ask voters if they want lower taxes, higher welfare spending and balanced budgets, they will reply “yes” to all three. Yet it is not logically possible to have all three. Balancing the three issues is fundamental to financial decision-making, and referendums cannot achieve this.

None of these are arguments for abolishing all referendums. Some may be useful. But they too should require a super majority for fundamental changes.

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