The Negative Voting Case in Context: Exploring the Interface between Elections and Free Speech – I

In our analysis of the Supreme Court’s recent decision on the right to cast a negative vote, we argued that the central importance of the judgment lies not necessarily in its immediate impact upon the conduct of elections in the country, but its doctrinal reinforcement of the conceptual connection between voting and Article 19(1)(a). Recall that the Court held that the right to vote was only a statutory right, but the freedom of voting (effectively) in a free and fair election was a 19(1)(a) exercise of the freedom of speech. In other words, as we discussed, the modalities of voting (procedural regulations dealing with the time, place and manner of voting, and substantive regulations dealing, for example, with age eligibility) could be regulated by statute, but the act of voting itself is protected by 19(1)(a).

Yet why, it might well be asked, did the Court need to go into 19(1)(a) given the existence of Article 326, which specifies that elections to the House and the Assemblies will be on the basis of universal adult suffrage? There are at least three good reasons for so doing.

First, Article 326 assumes, but does not guarantee, the existence of elections in the first place. It provides that, given election to the House and Assembly, universal suffrage is the rule to be followed, but in itself, does not prevent the government, for instance, from not holding elections at all. Therefore, a separate constitutional foundation is needed.

Secondly, a secure constitutional foundation is needed to prevent politically motivated discriminatory voting laws that may or may not be captured by Articles 14 or 15. In his excellent book, The Right to Vote: The Contested History of Democracy in the United States, Alexander Keyssar details a whole host of legislative measures, spanning more than two centuries of American history, designed to restrict the vote in a manner that did not offend the Fourteenth Amendment’s prohibition of race-based discrimination. Laws excluding voters on the grounds of race, caste, sex or any of the Article 15 prohibitions are easy enough; but the history of the United States shows us that literacy tests, onerous residence requirements, property qualifications and a poll tax, to name just four, were regularly deployed as anti-vote weapons, and we ignore this history at our peril. It may well be argued that such such measures are prohibited by Article 14, but recall that Article 14 only requires intelligible differentia and rational nexus with policy – a fairly low standard of review (in addition to Naz Foundation’s specification of a legitimate constitutional purpose); and again, what American history shows us is that it is possible to construct arguments that would putatively be “rationally justified“: an argument, for instance, that only those who can understand the affairs of government are in a position to make an informed choice, and thus, only literates should be allowed to vote. Property qualifications were long justified on the ground that only those who owned property had a stake in the affairs of government. Ridiculous as these arguments sound now, we would do well to remember that the poll tax needed a constitutional amendment as late as 1964 before it was finally weeded out of American politics – and not only that the opportunities for restricting the vote in a manner that escapes Article 326 are manifold (see, for instance, the controversy over the present Voter ID laws in the US), but Articles 14 and 15 do not provide an adequate safeguard. In any event, it is questionable whether a Court, on finding a violation of Article 326, would be entitled to strike it down, an issue that dissolves into irrelevance if the vote finds a home in Part III.

Thirdly – and perhaps most importantly – some of the central issues around the vote aren’t Article 326 issues of voter discrimination at all, as recognised by the Court in a series of judgments. In Union of India v. Association for Democratic Reforms, the Supreme Court was called upon to adjudicate upon an appeal by the Union from a Delhi High Court’s decision directing the Election Commission to make it mandatory for candidates to reveal, inter alia, any prior criminal record, assets and educational qualifications. The Union’s principal contention was that the conduct of elections was regulated by the Representation of Peoples Act and the rules made thereunder, and so the appropriate remedy for the Delhi High Court was to direct the petitioners to approach the legislature for suitable amendments, and not the Election Commission to implement regulations not found in the Act or the Rules.

The Court addressed this contention in two stages. First, it invoked a series of precedents to hold that Article 324 of the Constitution vested a very wide discretion in the Election Commission regarding the conduct of elections, including imposing requirements not excluded expressly or by necessary implication by the legislature in the Representation of Peoples Act. This addressed the threshold objection of competence; but not only did the argument justifying the particular directions in this case remain to be made, but clearly, if the Court stopped at this point, it left itself open to the legislature undoing its decision by simply amending the RP Act (as Indira Gandhi had famously done before).

In other words, if the contours of the right to vote were exhausted by the Representation of Peoples Act as limited by the non-discriminatory provisions of Article 326, then while the Court could no doubt invoke its necessary-implication argument to hold for the petitioners in the present case, it would leave the question of politicians’ antecedents on an extremely weak footing legally. The Court therefore located the specific issue within the Constitution and, in particular, Article 19(1)(a):

“Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process.”

Of course, there was no direct case on the point. So the Court examined 19(1)(a) precedent more generally, used it to derive the philosophy of free speech that undergirded 19(1)(a), and then applied it to the case at hand. Citing Indian Express Newspapers (newspaper regulation), Romesh Thappar (censorship on grounds of national security) and Cricket Association of Bengal (television broadcasting) – cases that we have discussed previously on this blog – the Court noted that the common theme underlying these judgments was the centrality of 19(1)(a) to democracy. That is, 19(1)(a)’s central philosophical commitment to democracy was what informed its implementation in specific, concrete circumstances. Hence:

“Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

There are two moves the Court makes here: first, from the purpose of 19(1)(a) being to preserve democracy, it concludes that the act of casting a vote in a election is a form of expression Article 19(1)(a) protects. Secondly, it holds that not only does Article 19(1)(a) protect the vote, it also protects – or mandates – all incidental acts that make the vote meaningful (in this case, an informed electorate aware of the antecedents of the candidates). In other words, the Court is not protecting the vote per se, but protecting the vote inasmuch as it is essential to sustaining democracy, and democracy itself is defined broadly to require not only free and fair elections, but free and fair elections with an informed electorate.

We are now in a position to understand the manner in which the Negative Voting case was grounded in precedent – it follows, more or less to the letter, the judgment and logic of UoI v. Association for Democratic Reforms. In the next post, we shall discuss the impact of this case upon the legal landscape through subsequent decisions on similar issues, and address other questions of substantive theoretical justification.

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