Guest Post: Summary Dismissal of Impeachment Motions: Neither Final nor Infallible

(This is a guest post by Tejas Popat.)

Impeachment proceedings are not a routine in India. Rather, they are a matter of necessity in ensuring the continued trust of the people in the judiciary. As a result, in the 68 years of our constitutional history, only a handful of impeachment proceedings have been initiated.

On April 20th, the first against the Chief Justice, Dipak Misra was set in motion. However, the Rajya Sabha Chairman refused to admit the motion (Order of the Chairman). Only once before has such a motion been summarily rejected. This was in the motion against J.C. Shah J. when GS Dhillon was the Speaker of Lok Sabha. Acting on the counsel of the then Chief Justice M. Hidayatullah he dismissed the motion as ‘frivolous’ as it concerned some remarks made by Shah J. during a hearing against a certain OP Gupta. Without analysing the merits of each, such summary dismissals have wide ramifications. They raise questions on the powers the Chairman can exercise at such a nascent stage of an impeachment proceeding.

In this blog, I seek to analyse the scope and extent of this power to refuse to admit a motion under the Judges Inquiry Act, 1968 (hereinafter ‘the Act’) read along with the constitutional scheme. But, before I dwell on that aspect, I shall for sake of context set out the procedure for impeachment. Drawing from the procedure and after analysing the scope of the power, I conclude that in the case of Misra CJ., if challenged, this order of dismissal will not withstand any reasonable judicial scrutiny.

To clarify, I have used the term Chairman for ease of reference but, the same shall equally apply to the Speaker if proceedings are brought in the Lok Sabha.

Procedure of Impeachment

As Seervai explains (Vol. 3, pg. 2914), a successful impeachment motion goes through five stages.

  • At the outset, requisite number of signatures are to be obtained on the notice of motion for presenting an address for the removal of the judge in either house of Parliament. S. 3(1) requires fifty members of the Rajya Sabha or one hundred members of the Lok Sabha to sign such a motion.
  • After such a motion is presented to the Chairman, the S. 3(1) confers discretion to either admit or refuse to admit the motion. This decision is based on consultations the Chairman has or after he has gone through the materials before him (Notice of Motion and the documents which may have been submitted by the parliamentarians).
  • If the motion is admitted, the Chairman under S. 3(2) is mandated to set up a committee ‘for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for.’ This involves the committee following the procedure set out in S. 3(3) to 3(9) of the Inquiry Act aided by the powers conferred on them under S. 5 (asking for discovery of documents, examination of witnesses etc.) to prepare its report. The hearing before the committee are of a judicial nature allowing the Judge to present his or her case.
  • This stage involves the committee forwarding the report to the Chairman where the committee would have found the judge guilty or not of the charges framed. If the committee finds the judge not guilty, the proceedings come to an end as per S. 6(1). Otherwise, the motion which was till now with the Chairman is now forwarded with the report of the committee to the houses of the Parliament for voting on the motion.
  • Voting on this motion has to be completed as provided in Art. 124(4). Upon such motion being passed in Parliament, S. 6(3) states that ‘the misbehaviour or incapacity of the Judge shall be deemed to have been proved’ and this motion and the result of voting is forwarded to the President for him to exercise his powers under Art. 124(4). The President concludes the process by passing an order for the removal of the Judge.

Thus, only after such a rigorous process comes to fruition, does a member of the higher judiciary lose his office. I shall now come to the proceedings initiated against the Chief Justice.

The motion against Misra CJ.

We now come to the order passed by the Chairman on April 23rd in refusing to admit the motion.

The scope of the Chairman’s power to admit such a motion is only found in S. 3(1) of the Act. Thus, any analysis of the sufficiency of the motion must also be circumscribed by the requirements of S. 3(1). It reads thus:

If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council,

then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.’

Now, the only explicit requirement provided in S. 3(1) is the numerical threshold of the signatures required. Thus, the Chairman must only assess whether this has been met. The instant case presents a great illustration. The motion submitted was signed by 71 members. However, in the meanwhile the 7 members had demitted office which led to the Chairman to find in the opening paragraph of the order that only 64 members could validly sign on the notice of motion. As reported, the members pointed this out to the Chairman but in any case, it presents a good example of how the powers which the Chairman may be limited to examining a procedural invalidity. In ¶ 4 he acknowledged that the requisite number of members had attested their signature and thus the requirement of S. 3(1) have been met. Therefore, ordinarily, the motion should have been admitted and he should have proceeded to put into motion the mandate of S. 3(2) viz. the constitution of the inquiry committee. But, that may not be the end of the debate.

It can be argued that some additional discretion may be vested in the Chairman vide S. 3(1) apart from merely considering the procedural validity of the motion. This lends itself not only from the words of S. 3(1) but also the fact that this power is made redundant if the job of the Chairman is merely to tally the numbers against the text of the Constitution. It is this discretion which would allow for consideration of the weight of evidence and the seriousness of allegations presented to him. Thus, what has to be determined the extent of this judicial power vested in the Chairman.

Here, it is relevant to consider the decisions in Mrs. Sarojini Ramaswami v. Union of India and M. Krishna Swami v. Union of India. The similarities between the two decisions are that Verma J. authored the majority opinion in both and they were also pronounced on the same date. But, on this specific point he contradicts himself. In the former he states that the Chairman forms the committee under S. 3(2) after forming a prima facie opinion (¶99). In the latter, he states that ‘the Chairman need not weigh the pros and cons to determine if there is a prima facie case. He merely has to act with a sense of responsibility which is guided by considerations of larger interest of the public administration of justice’ (¶44). Therefore, there is a need to determine a specific standard vis-à-vis the extent of the power and the scope of review by courts. A look at analogous situations where constitutional functionaries exercise adjudicative powers may help.

The Chairman has also been given a judicial power in the proviso to Art. 101(3). This is para materia to the proviso to Art. 190(3). Under this, the Chairman shall not accept the resignation of an M.P, ‘if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine.’ Commenting on Art. 190(3), the Chhattisgarh High Court noted, ‘Clause (b) of Article 190(3) gives an absolute right to the member of the House of the Legislature of the State to resign his seat. The only impediment in accepting the resignation is the enquiry which the Speaker/Chairman is bound to conduct. If no enquiry is conducted by the Speaker or the Chairman and the resignation is accepted, then the member of the House may challenge the act of the acceptance on the ground that the act of resigning was neither voluntary nor the resignation was genuine.’ The High Court thus seems to indicate that the scope of review by Courts is extremely limited. It is only when there is no enquiry which was conducted. By necessary implication, the Court will not interfere with the subjective satisfaction of the Chairman’s decision as long as the decision is based on some inquiry.

The standard the Chhattisgarh High Court seems to espouse the standard in the Bommai decision pertaining to the standard of satisfaction vis-à-vis the President under Art. 356. Before turning to the standard, we see if the same standard can be applied here. Though the Bommai standard was formulated in a different context but the standard is not specific to that context. The Bommai decision itself developed the standard from general administrative law principles (¶57) and therefore it cannot be restricted to Art. 356. Moreover, it has been applied to determinations made under Art. 123 or 213 as well in Krishna Kumar Singh (Sikri J. and Chandrachud J. agreed on this point thus forming the majority view) and Art. 72 in Epuru Sudhakar. Resultantly, the test in Bommai is not specific to the Emergency provisions but a general guidance on the manner in which discretion exercised by constitutional functionaries may be judicially tested. Now, coming to the test laid down in Bommai.

The Bommai ruling on this point can be dissected as follows. The President’s satisfaction is measured against four factors, first, the presence of material, second, whether the material is relevant, third, whether the material is sufficient, and fourth, whether inference drawn was legitimate. Now, the whole it may not be appropriate in the current context. As Chandrachud J. notes in his dissent in Krishna Kumar Singh by relying on Indra Swahney the level of scrutiny must depend on the subject matter and the nature of right affected (¶40). Thus, it would do well to recollect that the Bommai test is applied to a final determination and not a preliminary one like that of the Chairman given the five-stage impeachment process.

Keeping this in mind, the standard for reviewing a Chairman’s decision must, in my opinion, only involve a two-fold analysis. First, whether there was some material placed before the Chairman and second, the relevance of such material to the facts set out in the notice of motion. Thus, the Chairman would be justified in admitting a petition if these two grounds have been satisfied. Conversely, the burden on the Chairman is higher when he refuses to admit the motion. The standard to be met then is that there either exists no material or the material that exists is so spurious that the motion must be summarily rejected. The rationale for excluding the remaining two factors of the Bommai standard is that the proceedings before the inquiry committee are of a judicial nature. The charges against the Judge must be proved beyond reasonable doubt after examining the sufficiency and reliability of the evidence. Therefore, questions relating to burden and standard of proof are matters to be left for the members of the inquiry committee to decide.

The above formulation allows the Chairman some leeway in determining the admissibility of the motion on its substance as well. Evidently, this discretion is extremely limited, but, in the motion against Misra J. the Chairman started off on the wrong foot itself while scrutinizing the substantive allegations. In conducting his analysis, the Chairman as I shall elaborate now incorrectly sourced his power from Art. 124(4) and not S. 3(1). Not only that, the analysis based on the interpretation accorded to Art. 124(4) in this context was equally incorrect. Therefore, coming back to the order the Chairman.

Immediately after essentially conceding that the motion is admissible per S. 3(1), he begins ¶ 5 by stating, ‘I have carefully considered the question whether I should admit the motion submitted by the Hon’ble Members of Parliament or not, under Article 124(4) …. At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4).’

In the following few paragraphs he elaborates on the lengthy discussions he undertook before deciding this motion which are not of any immediate concern. After that, in ¶ 10, carrying forward what he stated in ¶ 5, he begins an analysis whether this motion can be admitted under Art. 124(4). This is erroneous on multiple counts.

First, Art. 124(4) does not even govern the role of the Chairman with regard to such a notice of motion. It confers an exclusive power on the President to remove the Judge from office by passing an order to that effect. This power is exercised after the procedure under Art. 124(4) has been complied with viz. misbehaviour or incapacity has been proved and the requisite address in each house of the Parliament has been passed to request the President to pass an order for removal of the Judge (See, Rule 16 of Judges (Inquiry) Rules, 1969 elaborating the detailed procedure for the adoption and passing of such an address and subsequently Rule 17 mandating that such an address to be presented to the President). Thus, the Chairman could not have even relied on Art. 124(4) to determine the issue of admissibility.

Second, assuming the Chairman can proceed to determine the motion in terms of Art. 124(4) he provides rather modest reasoning to support this. He states that, ‘the prefix ‘proved’ places an obligation of actually proving the misbehaviour before the Parliamentary Procedure for removal of a Judge can come into play.’ In support of this conclusion, he cited the decision of the Supreme Court in In Re. Mehar Singh Saini.

At the outset, the case did not deal with Art. 124(4) but Art. 317. Thus, the statement is a passing observation without the binding effect given to Supreme Court decisions under Art. 141. Second, this statement was made in order to distinguish the nature of the provision under Art. 124(4) and Art. 317 when the latter employs the word ‘misbehaviour’ and the former requires proved misbehaviour (¶ 74, (2010) 13 SCC 627). Thus, the decision is hardly of help.

Regardless of the above reservations, if we assume the authority to be of some assistance, such a conclusion contradicts the test that must be applied. Further, it not only contradicts the entire constitutional and statutory scheme but also jeopardises the purpose of having an inquiry committee to determine the guilt of the judge (See, S. 3(2)). While the latter is self-explanatory, I will now elaborate on the former.

The first instance in which the words ‘misbehaviour or incapacity’ are preceded by the word ‘proved’ is Art. 124(4). As I stated earlier, this is the provision which vests the authority in the President to issue an order which culminates the impeachment process viz. the fifth stage in the proceeding as Seervai explains it. None of the statutory or constitutional provisions dealing with any of the four preceding stages even mention the word ‘proved’ in the context of misbehaviour or incapacity (See as illustrations S. 3(1), 3(5), 3(6), 3(7) 6(1), 6(2) of the Act and the Inquiry Rules). The reason for this can be ascertained if we refer to S. 6(2) and 6(3) of the Act.

S. 6(2) states, ‘If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion … referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.’

Thereafter, S. 6(3) states, ‘if the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124 … then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved.’

Thus, only upon a finding of guilt by the inquiry committee and the parliamentary approval does any misbehaviour or incapacity stand ‘proved’ for the power under Art. 124(4) be exercisable. This is enabled by the deeming provision in S. 6(3). Thus, Only at such time when the charges have been proved, does the President get the authority to remove the Judge from office. At any stage before this, there are merely charges of misbehaviour or incapacity which have to be proved. This is evident from the fact that the elaborate judicial process is conducted by the inquiry committee. It frames the charges, allows for examination of witnesses and allows for the judge to be represented by a counsel (See, S. 4 and 5 of the Act). Furthermore, S. 3(2) makes this explicit when it states, ‘If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for …’ Thus, the burden of investigation and proving of charges is solely vested in the inquiry committee.

As Seervai notes:

‘In the context of s. 3(3) and s. 3(4) of the Inquiry Act the word “proved” can only mean that in presenting the notice of motion to the Speaker or to the Chairman that not less than 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha believe that when oral and/or documentary evidence is led before the Committee constituted under s. 3(3) of the Inquiry Act, the allegation made in the notice of motion the Judge would be proved…. When after a full judicial inquiry prescribed by s. 3(3) and (4) the Committee finds the Judge concerned guilty of one or more or all the charges framed against him, the word “proved” is used in its ordinary sense, for the truth of the guilt of the Judge has been established by oral and/or documentary evidence and the Report to be sent to the Speaker would say so.’ (Vol. 3, pg. 2920)

 

Thus, it would be unreasonable to prove the charges as a precondition to merely admit the motion. It was on such an erroneous assumption that the Chairman proceeded to analyse the allegations terming them as a ‘mere suspicion, a conjecture or an assumption’. He concludes in ¶ 15 as follows: ‘I have applied my mind to each of the five charges as made out in the Motion. I have examined all the documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with the context of the annexed documents, do not make out a case under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”

Not only did the Chairman proceed on an erroneous basis, his analysis seems to have far exceed the level of scrutiny which may be made at this stage of the proceeding. Thus, if challenged, this order of the Chairman may find it difficult to be legally sustainable.

The author would like to thank Mr. Agnidipto Tarafder for his timely encouragement. He would also like to thank the Editor of the Blog, Ms. Aishwarya Gupta and Mr. Rishabh Mohnot for their comments and suggestions on the earlier drafts of this blog. The author can be reached at tejaspopat97@gmail.com.

Advertisements

1 Comment

Filed under Impeachment, The Judiciary

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.

 

 

 

 

 

6 Comments

Filed under Access to Justice, Article 21 and the Right to Life, Public Interest Litigation, separation of powers

ICLP Book Discusion – Ornit Shani’s “How India Became Democratic”: Round-Up

Here is a Round-Up of the essays that form part of our book discussion on Ornit Shani’s How India Became Democratic:

  1. Laying the Foundations, by Suhrith Parthasarathy
  2. Constituting the People, by Professor Anupama Roy
  3. The Transformative Constitution, by Gautam Bhatia
  4. The Author Responds, by Ornit Shani

With gratitude to everyone who participated.

Leave a comment

Filed under Book Discussions, How India Became Democratic

ICLP Book Discussion – Ornit Shani’s “How India Became Democratic” – IV: The Author’s Responses

(In this concluding part of our Blog Round-Table on Ornit Shani’s How India Became Democratic, the author responds to the preceding three essays.)

I am grateful to Gautam Bhatia for initiating this round table discussion on How India Became Democratic. I am honoured that The Indian Constitutional Law and Philosophy Blog, which forms a valuable source for understanding developments in Indian constitutional and legal affairs is hosting this discussion. I am thankful to Suhrith Parthasarathy, Professor Anupama Roy and Gautam Bhatia for their thorough engagement with the book, and so soon after it was published.

Response to Suhrith Parthasarathy

Parthasarathy presents superbly the main themes and arguments of the book about how the preparation of electoral rolls on the basis of universal franchise, ahead of the constitution, engendered struggles for citizenship, driven from below by Indians of modest means; about the tremendous administrative efforts the making of the universal franchise for the largest electorate in democratic history entailed, and the rewriting of the bureaucratic imagination it necessitated; and how the preparation of rolls on the ground informed the process of constitution making. Parthasarathy rightly stresses the commitment to equality and to the right to vote that drove the making of universal adult franchise, not just as a constitutional vision, but also in practice, even before the constitution was finalised and came into force.

Parthasarathy focuses on a case where the government of Travancore refused to register on the electoral roll Tamilians who resided in the state but were not Travancore naturalised subjects of the state. In redressing the grievance of these Tamilians against the government of Travancore, the Joint Secretary of the Constituent Assembly, determined that the state had to register them as voters on the grounds that the state could not legislate or set qualifications that were inconsistent with the provisions of Part III [Fundamental Rights] of the draft constitution. It was inconsistent, in this instance, with the prohibition of discrimination on the basis of a place of birth. So, in this case, a fundamental right provision was inextricably interlinked with and protected by the draft (prospective) constitutional provision (289 B, and finally article 326), which entitled every citizen of India to be registered as a voter at elections to the legislator of the State.

Parthasarathy discusses this case to reflect critically on the Supreme Court’s decisions and reasoning on the status of the right to vote in recent law cases (In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), Rajbala v. State of Haryana, (2015), and in Javed & Others v. State of Haryana & Others). Strikingly, the legal status of the right to vote has been a subject of debate for some time.[1] The court has debated whether the right to vote is a fundamental right, constitutional right, or whether it is a right created by statute. Parthasarathy argues, on the basis of his analysis of the case of the Tamilians from Travancore, and the commitment to equality at large, which drove the making of the universal franchise, that it was ‘clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III’, and that ‘the fundamental rights enshrined in Part III cannot be isolated from the electoral process.’ I would like to make a few observations and some proposals to further strengthen Parthasarathy’s arguments. I will do so from both the perspective of the constitution makers’ intentions and their actions. I am not trained in the law, and therefore the proposals I offer below should be seen as based on my historical investigation and understanding of the actual making of the right to vote under universal franchise.

  1. The Constituent Assembly Secretariat undertook the preparation of the draft electoral rolls on the basis of universal franchise, thus implementing the right to vote, from November 1947, to ensure the holding of ‘fresh general elections as early as possible after the new Constitution comes into force’. (p. 91). They did so on the basis of the Constituent Assembly’s decision, while discussing the Interim Report of the Advisory committee on the Subject of Fundamental Rights, to adopt the principle that every adult citizen shall have the right to vote.
  2. Realising the idea of one women/man one vote – institutionalising equality for the purpose of voting – was fundamental to the building of a democratic edifice for India. The seriousness of purpose that was demonstrated in implementing this idea during the registration of India’s prospective voters, based on a deep commitment to procedural equality and on a comprehensive inclusive drive – attending, for example, even to the voting rights of vagrants living in huts erected illegally was fully aligned with the fundamental constitutional vision of creating a democracy for India. It is reasonable to argue that implementing the right to vote through the preparation of rolls was the first constitutional promise to be fulfilled by the new republic.
  3. During the preparation of the rolls, people grew to conceive of their voting right as a basic guarantee of the constitution. As I show in the book, a number of citizens’ organisations were established in order ‘“To safeguard the right of franchise as guaranteed by the new constitution”’ (p.64). Numerous others fought for a place on the roll to ensure their citizenship and voting rights.
  4. Most importantly, perhaps, as a result of the implementation of the right to vote through the preparation of rolls, especially the experience of distinct forms of attempted disenfranchisement on the ground at the state level, constitution makers agreed towards the end of the constitutional debates on a ‘radical change’ (p. 185) in the election provisions. It aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicit expression to the notion of universal franchise on the basis of a single joint electoral roll. The new article stipulated that the election machinery for all elections to parliament and to the legislatures of every state would be vested in a single independent central Election Commission at the centre. The implementation of the right to vote, a perennial and iterative process in a democracy, was removed from of the purview of the states, as it was originally set to be.

In conclusion, constitution makers agreed in April 1947 to the suggestion of the Advisory Committee that the provisions on the right to vote ‘should find a place in some other part of the Constitution’, rather than in the part on Fundamental Rights, as was suggested by both the Fundamental Rights Sub-Committee and the Minorities Sub-Committee. I agree with Parthasarathy that this was a ‘judgment founded on form’. The Advisory Committee unanimously supported the principle of adult franchise, free and fair elections and the management of these elections by a body that is independent of the government of the day. It is true that some of its members doubted whether franchise would ordinarily be part of fundamental rights, and whether dealing with franchise broadly was within the Committee’s jurisdiction. But in June 1949, on the basis of the actual implementation of the right to vote, constitution makers erected a constitutional fortress safeguarding the right to vote within the constitution. The Election Commission is the guarantor, in practice, of the right to vote. As some scholars have argued, the Indian constitution moved beyond the classic separation of powers in its creation of an independent Election Commission.[2] As an autonomous edifice within the structure of the separation of power, should it not be considered part of the constitution’s basic structure? Nehru’s insistence, when some doubts were raised about the universal franchise, that ‘It is one of the basic laws, according to me’[3], is a footnote to these observations, which I hope strengthen Parthasarathy’s arguments.

Response to Anupama Roy

Prof. Roy addresses two broad themes of the book: the making of democratic citizenship and the fashioning of a democratic political imaginary, which I suggest were driven by the preparation of electoral rolls and the contestations for citizenship that emerged in this process. Roy presents my broad arguments about these themes, and raises some important questions about each of them, and about the relations between the two.

Roy asks ‘how the big connection between a bureaucratic process [the preparation of electoral rolls] and democratic imagination could be made’, and asks me to think about the idea that Indians became voters before they were citizens, and about the preparation of rolls as a state building process.

The question of the connection between the bureaucratic process and the democratic imagination is very important. Three main interlinked processes, which together constituted the actual process of implementing electoral democracy, and which produced engagement with shared democratic experiences among civil servants and between people and administrators, played a role in connecting the two. These were the rewriting of the colonial bureaucratic imaginations and habits on franchise and voting rights; the way the universal franchise became a meaningful political order in which Indians would believe and to which they would become committed; and the ongoing numerous interactions between people and administrators about the preparation of the electoral rolls.

The task of the administrators was to operationalise the notion of procedural equality for the purpose of electoral voting. They had to imagine a joint list of all adults in the land – women and men of all castes and classes – each carrying the same weight as equal voters. Designing instructions for the preparation of electoral rolls on that basis required a rewriting of the pre-existing bureaucratic colonial imagination on franchise and voting rights. This process began over four months of consultations between and among administrators at all levels throughout the country, during which they were asked to envision how the lists should be best prepared, the difficulties they might encounter and how these could be overcome. This all-India administrative exercise in guided democratic political imagination imbibed the notion of universal franchise and of procedural equality for the purpose of voting within the administrative machinery. This process deepened in the context of the intense struggles for citizenship and for a place on the roll that arose once the registration of voters began. The commitment to procedural equality that was cultivated in the process of the preparation of the electoral rolls, and that went beyond a notion of efficiency in election management, was strikingly demonstrated when the collector of Bombay, for example, took in November 1948 proactive steps to ensure the voting rights of vagrants, servants and footpath dwellers.

I suggest in the book, that it would not have sufficed for a democratic vision based on adult franchise to become merely embedded in the institution of electoral democracy. The abstract principle of universal franchise also had to be embedded in the imagination of people. They had to find meaning in it, to own it, and to find a place for themselves in it. They had to make it personal. I argue that the storytelling about the preparation of rolls connected people to a popular democratic political imagination. Stories about the preparation of rolls were published in governments’ press notes and in the press. There was not a single ‘pervasive popular narrative’. Numerous different stories, which represented varying concerns, and fragmented reporting from across the country appeared in the press, press notes and in the correspondences between people and administrators. These disparate stories appeared in relatively regular installments. They represented different concerns related to the core plot of the preparation of the electoral rolls. This contributed to the dynamic of a serialisation of the story of making universal franchise. It was a story of a monumental historical significance, grand in scope, and therefore like an epic tale of India becoming a democracy.

These stories stimulated peoples’ engagement with the making of the universal franchise. People began thinking about the universal franchise and to imagine their place on the roll from their personal perspective. Their correspondence with administrators about the preparation of rolls evidenced that. That people also began recognising their power in ensuring the success of the operation was illustrated when a labour union from Madras port, for example, wrote to the government that ‘It will be a waste to the Government both financially and politically if we do not actively extend our co-operation in their attempt for reparation of electoral rolls based on Adult Franchise on which depends the fate of toiling millions…’ (p. 119) This was in the context of their employer’s notification that they would not observe the days declared as public holiday by the government for the purpose of conducting the enumeration. Indeed, the success of the bureaucratic efforts were heavily contingent on the participation of people and their sense of commitment to and identification with the normative vision the universal franchise entailed. To borrow from Parthasarathy’s discussion, the democratic principle this vision entailed had to rest in peoples’ hearts, and be embedded in their minds, before any law or constitution could save it. All this informed peoples’ struggles in pursuit of their citizenship and voting rights on the ground in the preparation of the electoral rolls.

In the context of the contestations for a place on the roll, people essentially already acted as engaged, even passionate citizens, while the constitutional citizenship provisions were still undecided and debated. Since a prospective voter had to be a citizen, the preparation of the electoral rolls at the time was the most concrete and inclusive means by which people could be Indians and feel a belonging to the new state. The first draft electoral roll on the basis of universal franchise was ready just before the commencement of the constitution. It was prepared on the basis of tremendous efforts to include all the adult population. As I state in the conclusion to my book, the all-encompassing national identity of Indians on the eve of the commencement of the constitution was that of being equal voters. ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5). It is in this sense that Indians were voters before they became citizens. And their identity as such has become, and remained, very meaningful to them. It was not about the legal affirmation of being voters before citizens. In fact, formally-legally that would happen later on when the rolls would be finalised after the enactment of the election law. I therefore agree with Roy that this was not a matter of sequential development. And as Roy shows in her important book Mapping Citizenship in India (Oxford University Press, 2010), the life of legal citizenship in India has remained a contentious matter, and in some respects a thorny issue from the perspective of democracy.

The preparation of the electoral rolls on the basis of universal franchise was indeed a large-scale democratic state building project. In contrast to other state building processes at the time, it was not based on state distinctions between, for example, good or bad refugees; displaced or intended evacuees. There was no distinction between good or bad voters. The principles that underlay the logic of this state building process were equality and universal inclusion. The production of a register of more than 173 million people that were bound together as equal citizens for the purpose of authorising their government rendered existent the idea of ‘the people’, even before they became ‘We the People of India’ with the enactment of the constitution. It concretised, and made real the fiction that is called the people.

I thank Roy for the interesting questions that she raised, and I hope that they have been successfully addressed.

Response to Gautam Bhatia

In his essay Bhatia discusses the implications of the arguments in How India Became Democratic for contemporary constitutional interpretation. In doing so, he expands Parthasarathy’s analysis of the impact of the book’s themes on Indian constitutionalism. Bhatia addresses the question of ‘how to accurately characterise the moment of constitutional creation’. This question lies at the heart of various issues that came before the Supreme Court over the years, including decisions pertaining to fundamental rights. The Court has debated whether the constitution represents a moment of continuity with past colonial constitutional frameworks and therefore a stage in a constitutional evolution, or whether it was a transformative moment. The former view has prevailed in India’s constitutional jurisprudence. This, Bhatia argues, ‘has a direct impact upon modern-day constitutional interpretation’, and clearly an adverse one, in his view.

Bhatia shows how the view of the transfer of power as incremental and evolutionary enabled the court on various occasions to uphold colonial law, endorse colonial practices and to maintain a restrictive interpretation on fundamental rights. Paradoxically, on the basis of a rather teleological understanding of the moment of the creation of India’s democracy as a stage in a process of evolution, the court sometimes reinstated autocratic forms of colonial rule.

Bhatia argues that the moment of constitution creation was transformative. And that the transformation in the constitutional structure ‘will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.’ It is not, then, simply the letter of the law, but the meaning with which it is imbued in the particular context of that transformation. This is a fascinating argument.

Bhatia suggests three ways in which ‘universal franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society’: the leap in the size of the new electorate; its nature – unlike under all the colonial constitutional frameworks the individual was prior to the group; and its character as universal. To add a footnote to Bhatia’s point about the scale of the transformation in the character of the electorate, the franchise provisions in the Government of India Act, 1935 (Sixth Schedule), contained so many qualifications for being a voter for a divided and restricted electorate that this was sub-divided into 12 parts spread over 51 pages. Underlying his analysis, Bhatia picks up what to me is perhaps among the most, if not the most, revolutionary aspects of the moment of rupture from colonial rule and constitutional frameworks that the making of the universal franchise wrought (and which I already mentioned in my response to Roy): ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5).

I would like to attempt a small contribution to Bhatia’s arguments about the ways the making of the universal franchise marked a transformative constitutional moment. I will do so by thinking about the ‘constitution creation moment’ as a process. I will dwell here further on some of the points I made in more detail in my response to Parthasarathy.

The transformative nature of the making of the universal franchise also lay in the bold effort of undertaking it in anticipation of the drawing up of the constitution. The preparatory work started from November 1947. This was an extraordinary display of confidence in the fundamental principle of equality for the purpose of voting, and in the universality of the franchise, which marked the biggest rupture from colonial rule and its system of representation without democracy. Taking this leap resulted in a far more fundamental constitutional transformation. As I suggested in discussing the status of the right to vote, the experience of preparation of the electoral rolls on the basis of universal franchise, particularly the realisation of attempted disenfranchisement on the ground must be overcome, drove a radical change in the constitutional provisions for elections and their management. The new provisions, which set up an independent central election commission, was meant to supersede states rights over the universality of the franchise, and to create an institution that would protect citizens’ right to vote.

This roundtable and the questions raised by Bhatia suggest that a closer history of other constitutional provisions might throw more light on the question of ‘how to accurately characterise the moment of constitutional creation’?

[1] Also see Aditya Sondhi, ‘Elections’, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of The Indian Constitution, Oxford: Oxford University Press, 2016, pp. 196-200.

[2] See Bruce Ackerman, ‘The New Separation of Powers’, Harvard Law Review 113, no. 3, 2000, pp. 715– 16; Madhav Khosla, The Indian Constitution, New Delhi: Oxford University Press, 2012, pp. 38– 43.

[3] H. V. Iengar, Oral History Transcript, p. 146, Nehru Memorial Museum Library.

2 Comments

Filed under Book Discussions, How India Became Democratic

ICLP Book Discussion: Ornit Shani’s How India Became Democratic – III: The Transformative Constitution

(This is the third essay in our round-table discussion of Ornit Shani’s How India Became Democratic. In this essay, I discuss the implications of Shani’s argument for constitutional interpretation. Following this, we shall have a response by the author.)

In 1964, a seven-judge bench of the Supreme Court was asked to decide whether certain forest rights granted by the ruler of a princely state to some of his subjects continued to exist even after the accession of the princely state to the Union of India. Could these people continue to enforce the old ruler’s commitments against a new sovereign? A narrowly divided Court (split 4 – 3) held that they could not, agreeing with the contention of the State of Gujarat that the takeover of the princely states was “an Act of State” that automatically extinguished all subsisting rights, and that those rights remained extinguished unless specifically recognised by the new ruler.

To decide this question, however, the Court had to first answer another question: what was the nature of the transfer of power from the princely rulers to the newly-birthed Union of India? In his concurring opinion, Justice Shah characterised it thus:

“… [the] promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign.”

The Respondents relied upon the judgment of Justice Vivian Bose in Virendra vs State of UP. Justice Bose had held that the Independence had been a transformative moment, ushering in a new legal order where the reign of arbitrariness and despotic power was replaced by the rule of law. Consequently, the “Act of State” doctrine – which placed certain actions of the State beyond the pale of the legal system – simply had no application in the post-Constitutional era. Justice Shah disagreed:

“These assumptions are not supported by history or by constitutional theory. There is no warrant for holding at the stroke of mid-night of the 25th January, 1950, all our pre- existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new sovereignty: it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.”

In our constitutional history, for the most part, Justice Shah’s views have carried the day. The argument is a familiar one: from the 1919 Government of India Act, which first introduced representative government under the colonial regime, there had been incremental progress towards Independence. Waymarked by events such as the 1935 Government of India Act, it is argued that this incremental progress almost imperceptibly culminated in the grant of Independence. The ruler changed; partial suffrage became full suffrage; the legislative assembly replaced the Office of the Governor-General as the supreme law-making body; and all of this was a logical evolution from what came before. Fundamentally, nothing changed: the old laws remained, the old governing structures remained, the old forms of rule remained.

This is not an academic debate. The question of how to accurately characterise the moment of constitutional creation has a direct impact upon modern-day constitutional interpretation. For example, it was on the basis of the evolutionary theory that the Bombay High Court, in Narasu Appa Mali, uncritically accepted the characterisation of “personal laws” by the colonial Courts; it was on this unstated basis that the Supreme Court, in Kathi Kalu Oghad, used colonial penal laws such as the Identification of Prisoners Act to narrow the scope of Article 20(3) of the Constitution, reasoning that, after all, the framers could not have intended to frame so wide a guarantee against self-incrimination that the Identification of Prisoners Act would be made redundant; and, until a long-overdue course-correction in Krishna Kumar, it was by invoking the Governor-General’s near-absolute powers of Ordinance-making in the pre-Constitutional era that the Supreme Court granted an almost unchecked discretionary power to the Executive to issue ordinances under the Constitution. The upholding of colonial laws, the endorsement of the continuity of colonial practices, and the restrictive interpretation of Part III of the Constitution – these three staple features of our constitutional jurisprudence are all founded upon the unarticulated premise that the Constitution represents a moment of continuity (or, at best, “evolution”), rather than transformation.

It is in this context that Ornit Shani’s How India Became Democratic is a work of great importance in thinking about the Indian constitutional tradition. As Suhrith and Anupama have demonstrated in their essays, in its granular and detailed elaboration of independent India’s first general election, How India Became Democratic challenges the simplistic claim that the grant of universal franchise was an easy or natural evolution from the representative institutions that existed under the colonial regime. As Shani points out in her Introduction:

“The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people.” (p. 5)

How did this happen? Shani writes about the preparation of the first electoral roll, the strenuous efforts that were made on the ground, and geared towards inclusion rather than exclusion, and the commitment of bureaucrats and officials towards realising the goal of universal adult franchise. At a more abstract level, however, what comes through Shani’s account is that there were three significant ways in which universal adult franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society. First, sheer numbers: under the colonial regime, the extent of representation never crossed 10% of the electorate. From 10% to an aspiration of universality is not an “incremental evolution” – it is, more properly, a fundamental change. Secondly, consistent with the colonial practice of viewing Indian society as an agglomeration of groups that had normative priority over the individual, under the 1919 and 1935 Acts, representative government was conducted through separate electorates. This was repudiated in the Constitution, which envisioned a single electoral roll and universal adult suffrage – thus emphasising the priority of the individual ver the group. And thirdly, the colonial regime treated voting as a privilege, and threw up substantial barriers in order to ensure that only the “worthy” were able to vote. These included property and educational requirements, and for women, these requirements were linked to the status of their husbands. Consistent with Nehru’s observation that any procedural barriers towards exercising the right to vote would amount to a negation of democracy itself, the Constitution removed these disqualifications, placing instead universal adult franchise at its heart.

Therefore, in the size of the electorate, the nature of the electorate, and the character of the electorate, there was absolutely nothing “incremental” about what the Constitution did: it was a foundational and radical change. It is in this context that we can understand what Shani means when she writes that suffrage instituted procedural equality in a deeply hierarchical and unequal society.

We are therefore in a position to see that Justice Shah’s characterisation of the Constitution as creating only a “new governmental setup” and having nothing to do with a change of “sovereignty” is flawed. It is flawed because it puts the cart before the horse: from the fact that colonial laws and legal structures survived into the post-Constitutional era, it is extrapolated that the framing of the Constitution was more a conservative moment than a transformative one. This, then, becomes a self-fulfilling prophecy in a case like Kathi Kalu Oghad, where the existence of colonial legal structures imperceptibly mutates into a justification for them. The logic, however, works the other way: the character of the Constitutional moment should be judged on its own terms (as Shani does), and it should then be asked (as Justice Bose did) how, within the new democratic system, the continuing legal structures ought to be understood. Indeed, Justice Bose’s crucial insight in Virendra was precisely this: that a fundamental change in the constitutional structure (from autocracy to democratic institutions) must necessarily have an impact on constitutional rights (even though the content of the laws would remain the same).

The American legal scholar Akhil Amar provides a good example of this. He examines the First Amendment to the American Constitution, which guarantees “the freedom of speech.” Now, the freedom of speech, as it existed in English common law, was a very limited right in the late-eighteenth century, providing protection only against prior restraint. However, Amar points to the fact that freedom of speech in the British Parliament was virtually absolute, and this was at least partly because according to British constitutional theory, sovereignty rested in Parliament. Amar then argues that the American revolution marked a fundamental shift in this understanding, and in the new American republic, sovereignty was deemed to vest in the people. From this, Amar concludes that when the First Amendment guaranteed “the freedom of speech”, the fact that sovereignty had shifted from Parliament to People indicated that the (absolute) free speech rights enjoyed by Parliament now vested in the people.

I do not here want to comment on the historical accuracy of Amar’s argument. The point, however, is this: a transformation in the underlying constitutional structure (including the form of government) will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same. Laws that had a certain meaning and content under an authoritarian regime must have a very different meaning under a democratic system (and this, precisely, was the reasoning of the Court in Krishna Kumar, when it rejected the colonial understanding of the Ordinance-making power).

For this reason, Shani’s demonstration that universal franchise was a transformative structural change provides us with a powerful argument to think through – and indeed, rethink – many of the features of our constitutional jurisprudence that have become virtually sedimented by the passage of time. Suhrith has written about the Rajbala judgment, but there are many others: for example, is it consistent with the framers’ commitment to prioritising the individual over the group through a common electoral roll for the Court to continue prioritising the group over the individual by excluding personal laws from constitutional scrutiny? Is it consistent with the conscious decision of the framers that women were to be treated as public citizens for the Court to continue to apply gendered stereotypes while deciding cases under Article 15(1)? And above all else, is it consistent with the Constitutional commitment to transform subjects into citizens for regimes of legal impunity (under laws such as AFSPA and the UAPA) continue to flourish with the blessing of the Court?

In his critique of Justice Shah’s judgment, K.G. Kannabiran notes that:

This interpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom, the repressive legal structures on whose altars people were sacrificed and their dreams shattered. It ignores the aspirations of the people to build a better society for themselves. The rise of political democracy leading to liberation from foreign domination is not a mere matter of evolution. There can always be a break in the continuity, a severance from the past, without being preceded by violence and destruction. There cannot be, there should not be two social histories one for political theorising and another for legal theorising. The setting up of a Constituent Assembly and the passing of the Indian Independence Act, 1947 are a consequence, a culmination of the struggle for independence. It was the shared belief of a large section of the people that there was a political severance on August 15, 1947. and a severance constitutionally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution. The people who met in the Constituent Assembly were nor mere technicians who had gathered there to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our undemanding or interpretation of the Constitutio With that understanding absent, the institutions under the Constitution were looked upon as a continuation of the colonial system of administration.

In the continuing struggle to breathe life into Kannabiran’s constitutional philosophy, in the teeth of a judicial tradition that has too often treated the Constitution as an extension of what came before, Shani’s account of independent India’s first general election is invaluable: it is a point of departure for all of us to think more deeply about what 1947 meant, and how the transformative character of that moment ought to map onto how we think about our Constitution, our citizenship, and our rights.

4 Comments

Filed under Book Discussions, How India Became Democratic

ICLP Book Discussion: Ornit Shani’s How India Became Democratic – II: Constituting the People

(In this second essay in our Roundtable on Ornit Shani’s How India Became Democratic, political philosopher Professor Anupama Roy, author of Gendered Citizenship, examines some of the book’s central claims.)

It is not often that one comes across a book which is an outcome of meticulous spadework in the archives opening up for scholarly attention a lesser known aspect of the making of the Indian Republic and democracy. Ornit Shani’s book on the preparation of the electoral roll for the first general election in India, which followed for the first time, the principle of universal adult franchise, is remarkable – quite like the feat Shani has studied in the book – both in terms of the enormity of the task and fortitude in the face of the labour involved.

Through an examination of the bureaucratic processes of the preparation of the electoral roll, Shani seeks to establish two points, both of which are of significance to the way in which scholars have thought about citizenship in India. Shani argues that Indians became voters before they became citizens (p.5). Indeed, it was in the course of the preparation of the preliminary electoral rolls from November 1947, set in motion by the ‘the note’ sent from the Constituent Assembly Secretariat to the various provinces and states of India that the process of inserting ‘the people’ into the administrative structures of the state was initiated. Indeed, it was the quest for a ‘place in the roll’, argues Shani, which prepared the ground for ‘the conceptions and principles of democratic citizenship that were produced in the process of constitution making from above’ (p.7).

A second point that Shani makes is about the relationship between democracy and the political imagination of the people of India, arguing that it was the implementation of universal franchise that elicited ‘both a sense of Indianness and commitment to democratic nationhood…’ (p.2). Moreover, she argues that it was in the contestations and the language of interaction that was produced at the ground level, in the process of making the roll, that political imagination itself was democratised (p.6).

These points are made painstakingly through a study of archival sources drawn primarily from the Election Commission’s internal records, which Shani was fortunate to access for two years before they were shifted to the National Archives in Delhi, Constituent Assembly Debates, and other official sources along with newspaper archives and interviews with Election Commissioners. Each of the six chapters which comprise the book, work out an aspect of the preparation of the electoral roll, and together they cover roughly the period between 1947-48 and 1949-1950. This was broadly the period from the beginning of the preparation of the electoral roll to the time the Election Commission started functioning as an integrated institution, under Sukumar Sen, the first Chief Election Commissioner of India.

In my discussion of these points, I will tease out some of the broad arguments which emerge in the book to show their complexity, but also how in each case there could be space for another argument, or an argument different from the one Shani makes.

  1. Genealogy of the ‘people’:

The concept of the ‘people’ is central to the universalist imaginings of modernity. It is abstract but also historically specific and can be traced through many genealogies, in which it assumes diverse forms. If one were to trace a particular genealogy of the people, one has to work out its formation in specific historical contexts, the meanings that are attributed to it, and the manner in which it operationalises itself. In the postcolonial context in India, the people were constituted at a pan-Indian scale of anti-colonial struggles for self-determination, but also in, and through specific sites where struggles took place against local power formations. The people were also constituted as the repository of sovereign power when they gave themselves the constitution on 26th November 1949 – a Constitution that they had enacted (through the Constituent Assembly). That the people also held constituent power was stated emphatically in Article 395 of the Constitution, which repealed the Indian Independence Act, severed all relations with colonial authority, and rejected the chain of validation which required that the Indian Constitution be placed before the Crown-in-Parliament for validation. The electoral domain was another space where the people acquired meaning and form – the people were constituted through a collective act of voting ‘simultaneously’ in a manifestation of unfettered popular sovereignty, achieved through the deferral of political authority, which is concentrated in the apparatus of the state.

The meaning of the people communicated through these diverse forms is identified with a specific ‘action’, which when expressed, constitutes the people as a collective body – emblematic as well as physical and corporeal. Ornit Shani makes a significant argument about the way in which ‘universal’ franchise inserted the principle of equality in the electoral roll and consequently a democratic disposition (p.18) among the people who were responsible for preparing the roll. On the other hand, in the process of acquiring a ‘place on the roll’, adult franchise played a role in connecting the people to a popular democratic imagination (p.19). I was curious how the big connection between a bureaucratic process and democratic imagination could be made. If one were to read the documents and communications among the administrators as accounts of how they managed to achieve the impossible task of registering Indians as voters, as a prelude to the next step of actually voting in an election (described by Sukumar Sen as ‘a massive act of faith’), it could appear to be a problem of administering an election efficiently, rather than making people feel equal, and make the leap to a horizontal camaraderie of equals.

In chapter 3 on the electoral roll as a ‘serialised epic’, Shani suggests that preparation of the electoral roll on the basis of universal adult franchise became part of the ‘popular narrative’. This narrative played a role in connecting people to a popular democratic imagination, ‘referring to manner in which it became not merely a system of rules that were to be observed but also part of the normative world of people and the stories, individuals make of it themselves’ (p.86). In the conclusion (p.253) Shani takes the argument further to say that through a process of consultation, the Constituent Assembly Secretariat engaged public officials, people and citizens association in the details of voter registration and citizenship, mentoring them into both the abstract principle and practices of electoral democracy. so much so that ‘people and administrators began using the draft constitution to pursue their citizenship and voting rights, and they linked its abstract text to their everyday lives’ (p. 252-53). Most of the material Shani discusses concerns the humungous ask of enrolling the entire adult population, in which ‘awkward’ categories – the refugees, displaced persons and women presented challenges of different kinds. This took place in an absence of an electoral law on the modalities of elections, without a precise legal-constitutional framework on citizenship, and the provinces were beset with specific problems pertaining to registration. In this literature it is difficult to find a corresponding ‘pervasive popular narrative’ on franchise, which according to Shani was of an order which ‘communicated substantially and therefore convincingly, India’s movement towards becoming a democracy’ (p.89). One would assume that such a narrative did exist, but a tangible and substantial expression of that is not present convincingly in what Shani calls the ‘serialised epic’.

  1. Chronosophy of ‘citizenship’:

Immanuel Wallerstein cautioned against a linear narrative of historical change, to argue that historical transformations do not take place sequentially in ascendant or descendant forms, but are uneven and undulating, punctuated by conscious decisions made along the way. When Shani makes the point about Indians becoming voters before they became citizens, she is perhaps referring to the fact that the legal affirmation of citizenship happened only with the commencement of the Constitution. While there was a legal vaccum on who were Indian citizens (there were in fact two periods of such vacuum between 1947 and 1949 and then again between 1949 and 1955, when the Citizenship Act of India was passed by the Parliament), it did not mean that questions of legal citizenship were not being addressed in ‘problem’ cases through instructions from the CAS. Indeed, the questions of legal citizenship were coming up and were being addressed primarily in the context of preparing the electoral roll, since only citizens could vote. Indeed, rather then a sequential development, one could perhaps see them as overlapping and simultaneous, taking shape through documentation practices of the state, and alongside the development of the institutions of the state and their functional differentiation. Indeed, over the years, (and controversially so) resolution of the contest over citizenship in the preparation of electoral roll has come within the purview of the ‘superintendence and control’ of elections function of the Election Commission of India (under Article 324).

An important point that Shani seems to be making is that in the process of finding a place on the electoral roll, a political community organised on the principle of horizontal camaraderie of equals could now be ‘imagined’. We may see the imagination of a community of equals marking the transcendental moment of independence, the emphatic rupture from the past, and the ‘triumphal’ democratic imaginary, which is a component of democratic citizenship. This imagination can, however, exist independent of the constitutional/legal frameworks of citizenship, as well as the statutory frameworks determining who can vote. Indeed, the peculiarity of the electoral roll and the legal and conceptual association/dissociation of the two – voter and citizen – is evident in the contests over the electoral roll in Assam. In the National Register of Citizens being prepared in Assam, a citizen-resident of Assam is required to trace his/her lineage to the electoral roll of 1971 in Assam, and then buttress it with the legacy data going back to the 1951 NRC of the state.

  1. Constitutionalism, State Formation and ‘Anticipatory Citizens’:

The period 1947 to 1950 is replete with polyrhythms of the democratic imaginary, one of which Shani writes about, i.e., the preparation of the electoral roll. The framing of the Constitution was another rhythm of democracy being produced at the time. As a deliberative body which was entrusted with the task of making the higher order rules from which all future governments would draw their authority and legitimacy, the debates in the Constituent Assembly enacted a space for the public, where questions concerning the future polity were debated and resolved. Baxi sees this process as following the imperative of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’. These struggles shaped the project of writing the constitution, the ‘specific modes of governance and production of juridical norms’, and also the relationship between the constitution, law and the ongoing state formative practices (Baxi, 2008, 93). The process of enrolling electors broke free from the colonial practice of what Shani calls the ‘guided democracy’ disposition of the colonial bureaucracy (p.34) to instill a new set of bureaucratic attitude in the bureaucracy based on the ‘procedural equality of voting’. While agreeing that the enrollment practices marked a rupture from the colonial past, is it possible to see the registration of electors as part of another tendency, which has to do with state formation? Indeed, as a body framing the Constitution, the Constituent Assembly also alternated as the Legislature and the government, taking decisions, which were percolating down to officials at the local levels. The various flows of communication between the government functionaries, across Ministries and Departments, the Constituent Assembly and the Legislative Assembly, give an insight into the ‘innards’ of the state, the manner in which the separation of powers among institutions, their own understanding of these powers, the problem of drawing boundaries between and among institutions, and more generally the emergence of broad patterns of settling in of institutions and institutional practices, and the governmentalisation of the state was taking place through deliberations.

The governmental regime of enrolling voters, for example, involved working with a new principle of registration (procedural equality) but at the same time it was also a task of sifting and sorting, of devising administrative and legal categories e.g., displaced persons, refugees, evacuees, abandoned women, classifying and categorizing those occupying the liminal spaces of citizenship, to include them in different ways. The excision of ‘descriptive’ women from the universal roll is one example. The other example is how displaced persons continued to pose a problem for the Election Commission when the electoral roll was being finalised before the first general election, after the Representation of the People Acts came into existence. As Shani has mentioned, the Constituent Assembly had decided that the names of all displaced person be included in the voter’s list on the strength of their oral declaration. According to the narrative report of the Election Commission of India on the first general election, the states were instructed to enroll all such persons in the electoral rolls and a distinguishing mark be placed against their names, so that their citizenship status may be confirmed later after the Constitution came into force. In finalizing the electoral roll, the marked voters presented and also experienced problems. In Delhi, for example, which had a large number of displaced persons who resided in temporary shelters when the electoral rolls started being prepared, had by September 1951, when the rolls were published and publicized, shifted to colonies and townships set up for their rehabilitation. These voters were then not entitled to vote in the polling stations, which were set up in the localities in which they came to finally reside. The localities in which they were originally resident and had enrolled to vote, now formed a part of another constituency. The displaced persons experienced their enrollment as voters differently, therefore, and aspired for ‘natural constituencies’ based on shared interests, rather than constituencies following a territorial grid. On page 129 Shani does argue that ‘the preparation of the electoral roll was a state building project of the largest possible scale in terms of its population and territorial reach’. This argument would then indicate a logic of state building in terms of reaching to its population spread over a definitive territory (embracing and encompassing functions of the modern state, as John Torpey would say) pointing towards an imperative different from that of a democratic imaginary. Read with the earlier argument on enrollment practices contributing towards making a democratic imaginary of a people, this argument presents a paradox, which inheres in all democracies.

I learnt a lot from Shani’s work and I’m looking forward to her next work on the first general elections in independent India.

4 Comments

Filed under Book Discussions, How India Became Democratic

ICLP Round Table: Ornit Shani’s “How India Became Democratic” – I: Laying the Foundations

(Last month saw the release of Ornit Shani’s How India Became Democraticthe fascinating story of independent India’s first general election. Over the course of this week, The Indian Constitutional Law and Philosophy Blog will host a round-table discussing the book. Suhrith Parthasarathy, Professor Anupama Roy, and myself will be commenting on the book, and at the end, Ornit Shani will respond.

We begin with Suhrith’s essay, introducing some of the main themes of the book, and their impact on Indian constitutionalism.)

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it,” said Learned Hand in his famous address at New York’s Central Park in 1944 to an audience of newly naturalised American citizens. “No constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” These words, as the ACLU’s national legal director David Cole argues in his book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, captures an important truth and also simultaneously somewhat overstates the case. Although a constitution is unquestionably important in memorialising a people’s collective commitments, in helping develop a democratic culture, there can be little doubt that the ultimate protection of liberty flows not from such guarantees—from an independent judiciary or from principles of separation of powers and federalism—but from the pure pursuits of a state’s citizenry. In his book, Cole relies on three broad themes to make this argument: on the campaign for same-sex marriage in America; on the Second Amendment and the right to bear arms; and on the rights of those accused of terrorism and held at Guantánamo. Each of these represents a case of a civil society campaign succeeding against long odds. It is precisely one such story, perhaps even more telling than the victories that Cole cites, which Ornit Shani tells in her stirring new book, How India Became Democratic: Citizenship and the Making of the Universal Franchise.

Shani’s book blazes a trail because it shows us how citizenship was “made and contested on the ground,” how India’s prospective voters acted as engaged citizens even before the Constitution came into force, and well before the country’s fundamental guarantees were set in stone. The creation of the suffrage, through a universal adult franchise, which we, today, tend to take for granted, was a consequence of radical thinking, of rewriting, as Shani says, “the bureaucratic colonial imagination.” While some of the institutions that make the present-day democracy in India have their antecedents in colonial rule, the universal adult franchise isn’t a consequence of any such legacy. It is a product rather of a uniquely Indian exercise, driven from the ground by Indians of generally humble backgrounds.

“Fundamentally, the concept of an electoral roll that would bind all adults together as equal individuals was anathema to colonial administrators,” writes Shani. As a result, “they designed voter lists and registrations forms that divided the electorate into at least three types of constituencies: general, European and Mohammadan.”

And, what’s more, the electorate contained various other qualifications, such as ‘Husband pays income tax, literacy’; and included a ‘special provision regarding names of women.’ The very idea of expanding the franchise to women, Shani shows us, was a concept that proved especially difficult for colonial bureaucrats to grasp.

The notion that India’s democracy would be secured on the basis of a universal franchise, which was agreed on at the very beginning of the Constituent Assembly’s debates in April 1947, was, therefore, already a product of revolutionary thinking. But that this principle could be realised, in the midst of partition, which led to the displacement of an estimated 18 million people, and the killing of approximately one million people, and in the midst of integrating the princely states into the Indian republic, was an achievement of astounding proportions. Ultimately, the franchise helped expand the electorate to more than 173 million people, about 85 percent of whom had never voted in their lives, and a vast majority of whom, as Shani points out, were poor and illiterate.

As invigorating, though, as the story on the bureaucratic excellence that helped drive the universal franchise is, How India Became Democratic tells an even bigger tale. It busts the conventional understanding, for instance, that the Constitution was a gift to India from an enlightened few, from India’s famous nationalist leaders. It shows us that common Indian people were “already engaged with and demonstrated an understanding of the constitution even before its enactment.” The process of constitution making, Shani argues—and indeed shows us through letters, petitions and exchanges—was greatly informed by reaction on the ground. The Constituent Assembly Secretariat [CAS], which was managed by a small group of bureaucrats, was tasked with the job of preparing the first draft electoral roll on the basis of universal adult franchise. In performing this exercise, the CAS, which worked under the guidance of the constitutional adviser, BN Rau, was able to observe closely not only the direct consequences of its various actions, but also how the Constitution that would eventually be made was likely to tangibly affect people’s political rights and aspirations. This process of preparing the electoral rolls using the draft constitutional provisions as its basis, Shani writes:

“not only turned the idea of the universal franchise into a reality, but also generated debates on the constitution outside the Constituent Assembly. Various civic organisations and administrators engaged with an array of constitutional provisions. In that context, the future constitutional vision as a whole was deliberated, interpreted, tested, and forged.”

Directing this entire campaign was a wide-ranging commitment to equality. In many ways this belief in equality, as the book shows us, went beyond traditional conceptions of liberalism, allowing, in some cases, for classifying people differently in a bid to ensure a larger fairness in the process. A complaint from the president of Devicolam Taluq Travancore written in July 1948 to the President of the Constituent Assembly exemplifies how a basic pledge of equality steered the process of making the rolls.

According to the complainant, some 1,20,000 Tamilians residing in Travancore were being denied voting rights in the state even though Travancore had acceded to the Indian Union. These people, the complaint pointed out, had emigrated to the area over 50 years ago, and had had children born there. “To-day there is none to represent our cause either in Travancore Government or Indian Union,” wrote the president of the Devicolam Taluq Travancore. “When India is fighting for the franchise and other rights of her people in South Africa and Ceylon I am fully confident that your Honour will immediately take up this matter with the present Congress Government now functioning in Travancore and get the most coveted right of voting and other privileges same as that a Travancorian enjoys in the State.”

In response to this grievance, a member of the CAS prepared a note noting that the government of Travancore had refused to register Tamilians in the electoral roll because they were not naturalised subjects of the state. Similar rejections had been carried out in the Cochin state too, and the government of Tripura had also undertaken an exercise to determine a basis for state citizenship. The CAS’s joint secretary ultimately wrote to the chief secretary of the Travancore Government arguing that under the draft Constitution of India there would only be one common law of citizenship and that states could not disenfranchise any of its residents by imposing their own conditions of naturalisation.

To this, the chief secretary answered that the common law of citizenship cannot alter the position of Tamilians in the state, “as neither in law nor in fact is there any necessary connection between citizenship and voting. Voting is a right which a citizen obtains by showing himself possessed of the qualifications which are established by the state in which he resides. Matters pertaining to suffrage will have to be regulated by the state, and it will be for the state to determine who shall vote at elections.”

The Joint Secretary’s final rejoinder was rather telling. The state can no doubt provide qualifications for the purposes of voting, he wrote in his letter, but those qualifications must not be inconsistent with the provisions of part III of the draft constitution, which enumerated the various fundamental rights. Clause (1) of Article 9 of the Draft Constitution [which is today Article 15], the Joint Secretary wrote, “prohibits discrimination against any citizen of India on the ground only of place of birth. If a citizen of India after the commencement of the new Constitution possesses all the qualifications prescribed for voters born in the State, it will not be permissible for the State to disqualify him from voting merely on the ground of place of birth.” What’s more, the Joint Secretary also highlighted that a new article 289B had been proposed, which, on adoption, would entitle every citizen of India to be registered as a voter at elections to the State legislature.

The Travancore government’s objections captured two primary arguments that were made by many in power during the time. One, that there would exist no general, fundamental right to vote, and two, that elections would be an essentially federal process, with separate election commissions being installed for voting at the centre and for voting in each of the states. It was the nature of these conflicts that made clear to the Constituent Assembly that a general principle of equality, both procedural and substantive, must guide the entire electoral process, and that there could be no separate electorates, one for the centre and one in each of the states.

Now, originally, the Fundamental Rights Sub-Committee and the Minorities Sub-Committee of the Constituent Assembly had agreed that a nominal right to vote should be included in the chapter on fundamental rights. The draft article read as follows:

“(1) Every citizen not below 21 years of age shall have the right to vote at any election to the legislature of the Union and of any unit thereof, or where the legislature is bicameral, to the lower chamber of the legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency as may be required, by or under the law. (2) The law shall provide for free and secret voting and for periodical elections to the Legislature. (3) The superintendence, direction, and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of election tribunals shall be vested in an election commission for the Union or the unit, as the case may be, appointed, in all cases, in accordance with the law of the Union.”

However, the Advisory Committee on Minorities, Fundamental Rights, etc., headed by Sardar Vallabhbhai Patel, while agreeing with the substantive content of this article, recommended that the clause be included not in Part III, which enumerated the various fundamental rights, but in some other chapter of the Constitution. Patel offered no specific explanation for his committee’s decision, but the move to include the right to vote in a separate part of the Constitution flowed not from any belief in its relative lack of importance, but was likely a judgment founded on form, that elections in India needed separate constitutional grounding with an all-encompassing series of articles and clauses.

If anything, the exchange between the Joint Secretary of the CAS and the Chief Secretary of the Travancore Government only shows us that it was always the intention of the Constitution’s makers—guided as they were by debates that occurred outside the Constituent Assembly—to instil in the electoral system a basic guarantee of fairness. Unfortunately, though, this struggle for equality, these discussions that made clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III, haven’t informed the Supreme Court’s interpretive process. Time and again, the court has rejected arguments for an inalienable, fundamental right to vote. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), a 3-judge bench of the court, for instance, held that the “right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute.” To the court, therefore, the right to vote was merely a license granted by statute that could be taken away just as easily by a legislative act. More recently, in Rajbala v. State of Haryana, (2015), the court cited with approval its own decision in Javed & Others v. State of Haryana & Others, where it had held, rather absurdly, that:

“…right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right…”

These distinctions that the court has drawn between fundamental rights and constitutional and statutory rights ignore the serious contests that went into the conception of the universal franchise. They show us that the fundamental rights enshrined in Part III cannot be isolated from the electoral process. As How India Became Democratic argues, the preparation of the rolls provided a “concrete opportunity for people and administrators across the country to use the constitution…people discussed the constitution and suggested amendments because they saw the constitution as a means of resolving their disputes with the state and of securing their fundamental rights.” Therefore, any law that seeks to restrict a person’s right to vote, or a person’s right to contest an election ought to be tested not only on the provisions of Part XV, which is devoted to elections, but must also fulfil the basic conceptions of equality and liberty enshrined in the various different guarantees of Part III. The right to vote and the right to contest elections cannot be severed from each other. Indeed, they cannot be severed from the basic, foundational promises that the Constitution makes. The making of the universal franchise, as Shani’s book shows us, was a product of a revolution, a movement that had at its base a belief in equal treatment, a belief in principles of inclusiveness. Ignoring this history will de-democratize the Republic, tarnishing a constitutional culture built through the most rigorous contestations on the ground.

 

 

 

 

 

 

 

 

 

 

 

 

 

3 Comments

Filed under Constitutional History, Elections, How India Became Democratic