Monthly Archives: January 2015

Guest Post – II: The History of Educational Qualifications for Democratic Participation in India

(This is a guest post by Udit Bhatia, a DPhil candidate (political theory) at the University of Oxford. Udit is writing his dissertation thesis on the role of education in political exclusion)

(This wraps up our four-part series on the Rajasthan Panchayati Raj Ordinance.

Post I: On the constitutionality of the Ordinance from the perspective of Article 19(1)(a)

Post II: A critique of the Rajasthan High Court’s refusal to intervene

Post III: The Ordinance as seen from the prism of Article 14

Post IV: The History of Educational Qualifications for political participation)

The Rajasthan Government’s recent ordinance on Panchayati elections raises once more the question of the relationship between education and political participation. Before I discuss the history of debate on this relationship, it is important to remember that this issue is likely to remain of political significance for years to come, in spite of increased access to education. This is because the generations which shall continue to constitute a large share of our political class for the next few years will be those that did not enjoy the benefits of the kind of educational access available today. Further, as this number shrinks, it is likely that illiterate persons will become even more politically vulnerable. To put things in perspective: one member of the Constituent Assembly suggested that it was unfortunate that the adult suffrage had to be extended to illiterate persons. But he also conceded that the very notion of adult suffrage would be rendered meaningless if it were denied to the illiterate because it was such a large share of the population. There has, hitherto, been some strength in numbers.

The view that education is necessary for the exercise of democratic citizenship played an important role in the colonial government’s postponement of self-government in British India. The Southborough Committee, constituted to offer recommendations on the franchise by the Government of India Act 1919, stated that “education does help in the formation of an electorate which will be potentially more capable of understanding issues submitted to its judgment and hence prima facie better equipped to exercise political power”. Similarly, in offering recommendations for the Government of India Act 1935, the Lothian Commission noted that, in addition to the size of its population, illiteracy constituted one of “the two special problems which confront India in setting on foot a system of responsible government”. Illiteracy prevented access to knowledge, and therefore, an intelligent exercise of the franchise. One finds across the colonial government’s discussion on the franchise, the suggestion that self-government continued to remain the ‘ideal’, but one that had been rendered ‘impracticable’ due to this particular feature of illiteracy, which affected the vast majority of the Empire’s subjects.

In addition to the idea that literacy was a marker of political intelligence, it was also urged that wedding the franchise to one’s educational qualifications would help encourage the expansion of education. This argument figured in deliberations of the Roundtable Conference’s Subcommittee on the Franchise, and later, the Lothian Commission’s Report, both of which favoured an educational qualification for obtaining a vote. The educational qualification was conceived as an enabling one, which allowed educated persons who did not meet the property qualification to nevertheless cast a vote. However, from the perspective of the disenfranchised, one’s lack of education, in addition to property, now prevented them from obtaining the vote.

The Empire’s assumption about the necessity of education for democracy did not go uncontested. For instance, in the deliberations of the Roundtable Conference’s Subcommittee, one finds three distinct lines of critique against the educational qualification. The first emphasized the irrelevance of educational qualification in matters of political judgment. While some urged that illiterate people had a “horse sense” which allowed them to make intelligent political judgment, others criticized the narrow understanding of education as formal instruction on which defences of such proposals rested. The illiterate had ‘practical’ or ‘vocational’ training as labourers or farmers even if they had not obtained formal qualifications. Aruna Roy, in a recent article, has alluded to the politically astute character of some of the unlettered poor she has worked with. She suggests that democratic illiteracy has to do with specialized modes of governance which have no necessary connection with the ability to read and write. Secondly, critics of the literacy qualification highlighted the culpability of the colonial government in failing to ensure wider access to education. It was, according to this critique, unfair for the government to penalize persons for not obtaining educational qualifications, which it had failed to provide. A contemporary version of this argument urges that educational qualifications disadvantage certain sections of the population for whom the state failed to provide equal access to education. A final line of critique against literacy qualification urged that political participation was itself an important means of education about public affairs. This argument drew upon a Mill-ian understanding of politics as an educative process—ironically, Mill had endorsed the disenfranchisement of the illiterate—and suggested that illiterate people had become more politically aware through participation in previous elections, and would continue to do so if given the opportunity.

However, it would be a mistake to believe that the Empire’s assumed connection between capacity for democratic participation and illiteracy vanished at the stroke of the midnight hour. In addition to doubts about the wisdom of universal adult suffrage in the face of illiteracy, suspicion about illiterate persons’ capacity to manage a system of proportional voting as well as the cumulative vote emerged during the Constituent Assembly’s deliberations on the electoral system. Of more recent interest is the Assembly’s discussion on educational qualifications for elections to parliament (Article 84) and legislatures in the states (Article 173). Clause (c) of both provisions requires members to possess “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”. Professor KT Shah, a prominent educationist, unsuccessfully proposed that literacy ought to be a requirement for legislators in addition to citizenship and attainment of the stipulated age. Mahavir Tyagi, a Kisan leader from the United Provinces, objected that such a qualification would have excluded many like him from the very forum in which he was able to participate and voice objections to proposals such as Shah’s. Speaking on these provisions, BR Ambedkar clarified the ambit of clause (c) by suggesting that it was intended to cover “bankruptcy, unsoundness of mind, residence in a particular constituency and things of that sort”. Opposing the explicit formulation of a literacy qualification, Ambedkar argued that this was a matter best left to the Legislatures. “If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it”, he stated. Thus, the framers of the Constitution left open the option of limiting membership of legislative bodies to educated individuals.

Even as adult suffrage was introduced in postcolonial India, the political elite’s views on ability for democratic participation and its relationship with education did not constitute a clear break from the colonial government’s perspective. It is in this dishonourable tradition that one must locate the Rajasthan Government’s recent ordinance on educational qualification for elections to Panchayati institutions. Engagement with the past alerts us not merely to question the kind of exclusions such qualifications generate, but also argumentative resources that can be deployed to resist them.

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Guest Post I: The Panchayati Raj Ordinance Case and Article 14 – A Codicil

(We are continuing with our analysis of the Rajasthan Panchayati Raj Ordinance, which imposes educational qualifications as pre-requisites for running for elected office in local government, and its fate in the courts. This is a guest post by Vasujith Ram, a student at the National University of Juridical Sciences (NUJS), Kolkata)

In a challenge to the Ordinance No. 2 of 2014, which imposes educational disqualifications for the Rajasthan Panchayats, the Rajasthan High Court refused to accept the stay applications and pass interim orders. The order has been previously analysed here on this blog as a “complete violation of constitutional norms and standards”. While I certainly agree with the substance of the analysis, I would like to add some auxiliary notes in this post.

My first point is with respect to the “object-nexus” test under Article 14. In the earlier case of Javed v State of Haryana, previously referred to on this blog here, one of the contentions made was that the differentiating statutory provision – mandating the disqualification of those violating the two child norm – would not have any rational nexus with the object sought to be achieved by the Act. Rejecting the contention, the Court referred to Article 243G(b), which states that powers and responsibilities that may be entrusted in the Panchayats in pursuance of economic development and social justice are referred to in the 11th Schedule to the Constitution. As per the Schedule, Family Welfare and Women & Child Development form part of the duties of the Panchayats. Moreover, Section 21 of the Haryana Panchayati Raj Act, 1994 also listed family welfare as one of the callings of the Panchayats. Thus the Court justified the endurance of constitutional scrutiny by arguing that the electoral disqualification only furthers the statutory purpose.

In the present case, the Rajasthan High Court could have mimicked the Supreme Court’s reasoning – item 17 in the 11th Schedule of the Constitution provides for “Education, including primary and secondary schools”; item 19 refers to “adult and non-formal education”. Similarly the First Schedule of the Rajasthan Panchayati Raj Act, 1994 (operationalizing Section 50 of the Act, providing for powers and functions of the Panchayats) lists primary education and literacy programs as one of its priorities (item XV and XVI). It is manifest that the basic error committed by the Supreme Court in Javed was to conflate the two different objects of lending legal recognition to the Panchayats (vide the 73rd Amendment and the Panchayati Raj Act) – (1) One is to create a right of political participation and self-governance by opening up positions to institutions with statutory power for those hitherto deprived of it; (2) the other is to encourage such constituted bodies to engage in certain activities and promote certain goals. Imposing a restriction on (1) to ostensibly serve the object of (2) is dubious logic. A statutory amendment, in order to survive the object-nexus test, ought to be consistent with the corresponding object of the main Statute or the Constitutional Amendment authorizing the statute. The High Court here aptly identifies this distinction –

 “The disqualification for membership, under Article 243F of the Constitution, to be prescribed by the Legislature of the State, could not have provided for any such condition attached, which may have taken away the rights of the self governance, except for disqualifications, which have material object to achieve, such as the character, integrity or morality of the person to represent […] Any other disqualification will negate the object of self governance at grass root level, peoples participation, and social justice”.

Identifying this, the Court further held –

“In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic […] The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion.”

This distinction between the two objects is one of crucial importance. The 73rd Amendment itself states that one of the objects of constitutionalizing the Panchayati Raj institutions is to remedy the “insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women”. In order to fulfil the object-nexus test, a statutory amendment to a law ought to be consistent with the corresponding object of the constitutional amendment or provision authorizing such a law. If one of the stated objects of the 73rd Amendment could effectively be subverted (despite the seat reservations) by setting electoral bars in pursuance of goals the constituted body is to pursue (a different object), then the object of the Constitutional Amendment would be defeated. For example, item 14 of the 11th Schedule mentions rural electrifications and item 16 mentions poverty alleviation. No statutory amendment imposing such electoral restrictions ought to withstand the “object-nexus” constitutional scrutiny.

If on the other hand, there is a bar which fulfills and furthers recognizes material objects of constituting a political body – such as “character, integrity and morality” of the person, it must withstand constitutional scrutiny. And this is precisely what the Rajasthan High Court held in response to the Advocate General’s contention that a previous ordinance had disqualified those convicted and sentenced to imprisonment of 6 months or more. It observed –

“The persons who are engaged in unlawful activities or are defaulters, or acquired any disqualification which may have any nexus with the object, sought to be achieved, namely for representation, may be excluded participation in Panchayats.”

It is also pertinent to note that one factor weakening the State’s stand in the instant case was that the Ordinance had no Statement of Objects and Reasons.

Secondly, this order has perhaps foreclosed the possibility of any argument on the basis of history. I do not have primary materials, but secondary accounts (see for example, M Galanter and Upendra Baxi, “Panchayat Justice: An Indian Experiment in Legal Access”, in M Galanter, Law and Society in Modern India (OUP)) do indicate that there were literacy qualifications in the pre-constitutional period. But the Court here clarified –

In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic. It is a negation of the very object of purpose of enacting the Constitution of India, described in its preamble. The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion […] The republicanism in the country has allowed many persons, who did not even have any formal education, to rise and lead. Some of them had also rises to the position of Chief Ministers of the States.”

Thus the Court has created a distinction between a constitutional regime and a non-constitutional one. What may have been present historically need not necessarily be a sound presence in a democratic republic promising political justice.

My third and last point is with respect to the right to contest. I had noted in an earlier post on I-CON that this case presents a clear opportunity to clarify the nature of the right to contest. I had argued that the judicial decisions so far indicate that there is no fundamental right to contest, and that the statutory creation of the right has only been tested on grounds of reasonableness. Here in this case, while the Advocate General contended that the right to contest is a statutory right and not a fundamental one, the Court did not make any observations in this respect. It rather went on to directly examine the Ordinance’s reasonableness (its consistence with Article 14). Surprisingly, there was no argument on the basis of Articles 21A and 45, where it is the State’s obligation to provide all children free and compulsory education. Having failed in its obligation, the State has further imposed a disqualification on such persons.

 

 

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Rajasthan High Court’s (interim) Decision on the Panchayati Raj Elections

Previously on this blog, we had discussed the constitutional challenge to the Rajasthan Panchayati Raj Ordinance, which imposes formal educational qualifications to run for elected office at the local government level. We had discussed precedents in cases such as Javed vs State of Haryana, which – in treating the right to vote and run for office as purely statutory rights – had rejected challenges to similar restrictions. We had also argued that the last decade has seen a shift in the Supreme Court’s understanding of the role of elections in a democracy, starting with Union of India vs Association for Democratic Reforms (2002 SC), in which the Court held that the right to vote, while not a fundamental right, was nonetheless a ‘constitutional right’, and through PUCL vs Union of India (2003 SC) to PUCL vs Union of India (the NOTA case, 2013 SC), where the Court held that the act of voting is an exercise of Article 19(1)(a) freedoms. In conclusion, a legislative enactment that goes beyond simply regulating the modalities of voting (and therefore affects the statutory ‘right to vote’) and actually disenfranchises sections of the population (thereby affecting the constitutional ‘freedom of voting’) must be subjected to more rigorous scrutiny than a standard Article 14-rationality review (as in Javed). The logic of voting applies equally to the logic of running for office.

After the Supreme Court dismissed the challenge and granted liberty to the petitioners to approach the Rajasthan High Court, the case was heard by a division bench of the High Court on the 12th of January. Yesterday, the Court passed an order refusing to interfere with the workings of the ordinance. The petitioners had asked for an extension on the nomination period and a stay on the disqualification provisions pending a full adjudication of the dispute, so that in the upcoming elections this month, a large section of the population would not be excluded. The Court’s refusal to agree to either request means that the elections will now go ahead, and even if the Ordinance is eventually held unconstitutional, there will be no remedy until 2020.

Before the Court, detailed arguments were made about the nature and purpose of Panchayati Raj institutions, the arbitrariness of the formal-education requirement, and its disproportionate impact upon rural women (where it would act to exclude 95% of them). The State contended that this was a matter of electoral reform, that the performance of financial and administrative tasks requires formal eduction, and and that the Court ought not to interfere with legislative wisdom in matters of policy.

The core of the Court’s reasoning may be found in paragraphs 32 to 37. In paragraph 32, the Court notes that the State Government has failed to produce empirical data showing that there are enough qualified (i.e., formally educated persons) in the village (especially women), in order to demonstrate that the Ordinance will not exclude a significant section of the population. The Court then notes that even if such evidence was produced, “the exclusion of those who did not have an opportunity of formal education, could not have been denied participation in democratic institutions… the poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualifications.” In paragraph 33, the Court repeats these observations, and adds that the legislation is prima facie “arbitrary, irrational and unreasonable.” In paragraph 34, it states that it is unconvinced by the State’s argument that the financial and administrative tasks of local government require formal education.

We then come to the operative part, in paragraph 35. According to the Court:

If the disqualification prescribed by the Ordinance deprives a large section of the society to participate in the democratic institution of Panchayati Raj, and runs counter to the objectives of the 73rd Amendment, it may be declared as unconstitutional by the Court of law. We, however, find that neither the petitioners nor the respondents have placed sufficient data before us, to form any opinion as to whether the Ordinance is discriminatory as it will exclude a large section of the population from taking part in elections of the Panchayati Raj institutions. Both the petitioners and the Respondents have produced a large number of papers without sufficient opportunity of collection of the datas (sic) and the other side to reply.”

The Court then holds that the matter will therefore require a full-fledged hearing, and that it does not need to decide upon the constitutionality of the ordinance “at this stage”.

Two preliminary points may be noted. The reason why there was “no opportunity” for the parties to collect data was because the Ordinance was introduced four days before the announcement of the election program (in late December), and the elections itself were to take place through the month of January. It was the State that chose to promulgate the Ordinance literally days before the elections. In effect, the Court’s holding that the parties had no time to prepare data for a proper hearing was entirely the State’s fault, which the Court then allowed the State to benefit from by refusing to stay the disqualification provisions. This is bizarre logic and flies in the face of the basic legal principle, that no man (including the State) ought to benefit from their own wrong.

Secondly, it is hard to understand what data the Court needs apart from the following (most of which was provided to it): the population of Rajasthan at the last census, overall literacy rates, urban literacy rates, rural literacy rates, and urban-male, urban-female, rural-male and rural-female literacy rates. The degree of exclusion, and its gendered nature, will be abundantly clear from these figures, and was specifically argued before the Court.

There is, however, a deeper problem with this judgment. And that is the Court’s belief that discrimination is a problem only when a sufficiently large number of people is discriminated against. Let us recall the words of Article 14:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The right to equal treatment, and the right not to be discriminated against, is a right vested in individuals. The Constitutional freedom to vote (and run for office) as an aspect of Article 19(1)(a) is an individual freedom. A law that specifically bars me, as a single, individual citizen of India, from participating in the democratic process, is as unconstitutional as a law that bars every citizen but me from participation. When it comes to personal freedoms as constitutional rights, numbers don’t matter. And this is because the whole purpose of rights is to act as a check against majoritarian democracy. We vest rights in people because we are aware that majoritarian sentiment, expressed through elected parliaments, can often ride roughshod over core human interests. To then require that the petitioners demonstrate that a “large section of the population is affected” undermines the entire basis of Part III of the Constitution.

There are echoes here of Koushal vs Naz, the Supreme Court’s 2013 decision re-criminalising homosexuality. In the single paragraph of reasoning found in that judgment, the Court labeled the homosexual community as a “minuscule minority”, and held that there was no evidence showing that the “so-called rights of the minuscule minority” had been jeopardised by S. 377. Earlier in 2014, dealing with the educational rights of disabled children, the Delhi High Court signaled a potential shift away from this position by clearly stating that “though a small minority (2.1% of the population), they [the children] deserve no less than the rights under the PWD Act and the RTE.” But yesterday, the Rajasthan High Court echoed Koushal. The only result is a further erosion of constitutionalism and the idea of constitutional rights.

Data is important in this case, but it is important for a reason that the Court does not quite grasp. The challenge to the constitutionality of the Rajasthan Ordinance is two-pronged, and it is important to separate the two prongs. The first is the claim that by disallowing people who lack formal education to contest the elections, the Ordinance is discriminatory under Article 14, and also violates Article 19(1)(a)’s freedom of democratic participation. The second is that the male-female and urban-rural divide ensures that the Ordinance disproportionately burdens women in general (which would be an Article 15 claim), and rural women in particular (another Article 14 claim, if we assume that – following the Court’s previous judgments – intersectional claims cannot be brought within Article 15). The second claim is one of disparate impact: i.e., that a facially neutral statute has a ‘disparate impact’ on one section of the population, and is therefore discriminatory. To take a very simple (and extreme) example, a statute prohibiting the employment of “pregnant persons” is facially gender-neutral, but for very obvious reasons, will work to exclude only women. More complex arguments of disparate impact, by their very nature, require data at the threshold stage: data that demonstrates that the representation of one particular group, as a result of the statute, is far smaller than their representation in society as a whole.

But while the argument claiming that the Ordinance discriminates against women does require data (and such data was provided), the more basic flaw with the Ordinance – that it disenfranchises individuals – does not require facts, statistics or reports. All that it requires is the Court to ask whether the disenfranchisement is justified by any compelling State interest in preserving the integrity of the electoral process, as an aspect of republican democracy. And since the State has deprived people of their constitutional rights, the State must bear the burden of proving its case. If it cannot do so, then the law must fail – or at least, its operation be stayed, pending complete adjudication.

The impact of the Rajasthan High Court’s decision is highly unfortunate. It is also incorrect, and in complete violation of constitutional norms and standards.

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Book Review: Kenji Yoshino, A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice

(This is a Guest Post by Danish Sheikh, a researcher and advocate at the Alternative Law Forum, primarily working on sexuality and anti-discrimination law. He recently co-taught a course titled “Measure for Measure: Themes of Justice in the Plays of William Shakespeare” at NUJS, Kolkata. Email address: danish@altlawforum.org; Twitter: @dsheikh726)

I first encountered Kenji Yoshino’s A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice more than two years ago, as a relative Shakespeare novice. I flipped it open to the chapter on Merchant of Venice, the only Shakespeare play I’d engaged with textually at that point, and was electrified. Portia, fair Portia, heretofore my beacon of lawyerly virtue was being eviscerated by the author with the most measured grace. Turning to the chapter on Othello, I further relished Yoshino’s evincing of parallels with the trial of OJ Simpson – how novel, I remember thinking.

Two intervening years marked by increasingly fervent Bardolatry that culminated in co-teaching a course on Shakespeare and Justice have somewhat dampened my views on Yoshino’s work. I cannot anymore term it an outright success, but it has enough engaging readings of the plays and infectious enthusiasm for it to earn a recommendation. But first, why Shakespeare and the law?

Well, for one, Shakespeare’s life was permeated by legal institutions. As the son of the high bailiff of Stratford he was born into a world where the legal trial existed as a communal spectacle. As an Elizabethan playwright making his fortune in London, he was often called upon to stage productions in the Inns of Court and the Royal Courts. When John Madden’s Shakespeare in Love ends with the queen commissioning ‘something more cheerful’ for Twelfth Night, it is a winking reference to records of an actual production of the play that took place in the Court.

Unsurprising then, that his plays have much to say about the law and justice. Trials and legal symbolism abound both within the courtroom and out – Shylock’s suit against Antonio in Merchant of Venice; the ocular proof of the heroine’s chastity in both Othello and Much Ado About Nothing; the love trial at the start of King Lear and the mock hate trial near its close, to name a few.

If the output of critical work on Shakespeare is gigantic – George Steiner noted back in 1964 that it requires a fair-sized library to house the critical canon – scholarship on Shakespeare and the law comprises a small subset of this work. Where early Shakespeare-and-law scholarship tends to skew towards a dry analysis of the representation of the law in the plays, later efforts more creatively work through legal themes both explicit and implicit. What often remains lacking is a unified authorial vision of themes of justice across Shakespeare’s different works. Most of the writing exists piecemeal, in anthologized compilations that bring together vastly different styles and approaches. There’s a measure of satisfaction that comes from watching an author make their way across the varying Shakespearean narratives, and it’s something that Shakespeare-and-law scholarship just doesn’t have enough of.

Yoshino’s book then is a welcome addition to the canon. The central conceit is simple: nine plays, that cut across a cross-section of genres, each with a dedicated chapter that fleshes out a core theme related to ideas of justice. This is usually followed by linking the play to a contemporary problem that the author feels helps us better illuminate both. Yoshino simultaneously limits and expands his enterprise at the outset. “I do not have a definition of justice” he tells us, thus taking away from us the expectation of a central argument. What he does instead is pick up on a different theme with each play: for Titus Andronicus it is revenge and the rule of law; for Merchant of Venice it is the figure of the lawyer as the corrupter of discourse; for Hamlet it is the perils that are fraught in the delay of justice.

The book is at its best when Yoshino chooses to engage purely with the texts of the plays – I’ll go back to the two I began with. In the Merchant of Venice chapter, we find the author working through the prevailing mistrust of lawyers as skillful rhetoricians by looking at the figure of Portia. Long admired as the model lawyer and gifted with one of Shakespeare’s most quoted speeches as she beseeches Shylock towards the quality of mercy, Portia tends to walk away a perfect heroine. Yoshino is more skeptical – through a reading of three key passages corresponding to three trials in the play, he points out how Portia repeatedly runs rhetorical circles around her competition. “A hot temper leaps o’er a cool decree” she tuts at her dead father’s somewhat unreasonable will before going on to cannily subvert it. Next of course, is the famous flesh trial of Antonio, where she intervenes with one of the most painfully literal readings of a bond in contractual history. Finally, there is the trial of the ring where she hoodwinks her husband into parting with the ring she herself has given him in a test of his loyalty. As the play progresses, Portia gradually rises in her manipulation of the law, so that, as Yoshino notes: “I initially admire Portia because only she can stop Shylock. By the play’s end, I wonder who can stop her”.   Whatever be the document that binds her, fair or foul, she manages to will her way out of it – a lawyer so verbally proficient that ultimately no law can bind her.

From a play rooted in the rule of law to Othello, which is merely haunted by the specter of justice. This is again a play that stages a trial, except one that happens in closed chambers and without the chief accused’s testimony. What Yoshino is concerned with examining is the manner in which the play contrasts two kinds of fact-finding – one that is communal and rational, and one that is isolated and impassioned. The former is seen in the tribunal that grants Othello leave to be with Desdemona at the start of the play; the latter in Othello acting as judge, jury and executioner to Desdemona based upon Iago’s spurious evidence. As I have noted, this is fairly engaging material, and was even more exciting to me initially without much prior knowledge of Shakespeare.

The problem comes when Yoshino tries to link each play to a contemporary narrative – or, in some cases, simply a larger theme. The opening chapter attempts to link the revenge fuelled blood-feuds in Titus Andronicus to the post 9/11 war on terror. The escalating cycles of revenge in the play are contrasted with the attack of Afghanistan and then Iraq. Does this serve to better illuminate the war on terror? Not quite. Does it serve to contemporize Shakespeare in a productive way? Only if one is ready to leach away much of the complexity of the narrative.

For that matter, let’s go back to the Merchant of Venice example. So intent is Yoshino on making his point on the evils of rhetoric-abusing lawyers that he ends up flattening out the wonderfully layered character of Portia, who ultimately does save a man from death. It isn’t such a crucial point then that Portia stands in for lawyers and lawyers inevitably corrupt discourse – for then we’d have to see the counter of Isabella in Measure for Measure, another character advocating for mercy, and actually exhibiting it. The strain in making the plays accrue to one core theme is most egregious in his chapter on King Lear: what begins as an absorbing discussion of the two trials animating the play ends with the baffling generalization that the play prepares us for the inevitability of death. This is certainly not a point that we need King Lear to illuminate for us, and attempting to affix that particular meaning to this particular play robs both of much of their heft.

One of the great joys of doing law and literature is discovering the mutually generative reaction that the two disciplines have on each other. If literature allows us to open out new worlds within the singularity of the law, the law also allows us to give a kind of shape to literature, to excavate narratives that may have otherwise floated past cognizance. One would expect a book on Shakespeare and Justice that aims to speak to the contemporary to then provide an illumination both on the plays themselves as well as the issue they’re purportedly speaking to. Instead, Yoshino’s framing works to chip away meaning where it should supplement or transform it.

My other more minor quibble lies more broadly with the books featured choices – not so much what it puts in but rather what it leaves out. Of the 9 plays covered, 5 are tragedies, along with one representative each from the comedies, problem plays, romances and histories. And yet the title of the play comes from a comedy; a delightful verse from the Merchant of Venice spoken by that wily lawyer Portia herself:

“You see me Lord Bassanio where I stand,       

Such as I am; though for myself alone             

 I would not be ambitious in my wish           

To wish myself much better, yet for you,             

I would be trebled twenty times myself,             

A thousand times more fair …”

As he notes in the book’s epilogue, Portia use of these words captures a quietly extraordinary thought: our desire, when we entire a community of love, to be better people than we are. In other words, the notion of how love might draw us towards justice. This is an idea that tends to be fore-grounded in Shakespeare’s comedies with their love-shook plots, and with their marginalization in this book, Yoshino leaves this tantalizing thought under-developed, in the pursuit of slightly more weather-beaten ideas of justice.

And yet, despite its flaws, A Thousand Times More Fair teems with absorbing readings of Shakespeare’s sparkling verse. It’s a book that deserves to be engaged with, and certainly one that will spark many an impassioned debate amongst those interested in the law, regardless of their prior knowledge of Shakespeare. Ultimately, if we are going to be arguing about the law, why not do it with words that are “fretted with golden fire”?

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New Blog: Criminal Law, Procedure and Evidence

For readers interested in criminal law, procedure and evidence in India, a fascinating set of themes, “The Proof of Guilt” is a new blog dedicated to these issues. The last few posts examine the Uber controversy, the landmark three-judge bench decision on the scope of S. 138 of the Negotiable Instruments Act, and the recent ‘Terror Boat’ incident. Do head on over there and check it out!

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The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance

(H/T to Mythili Vijay Kumar for pointing out Javed vs State of Haryana and helping me through the attendant issues)

Today, the Supreme Court dismissed a challenge to the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 (approved by the Governor on December 19, 2014). The dismissal was on procedural grounds. As far as I can understand, the petitioners were granted liberty to approach the High Court. Considering that the nomination period ends tomorrow, and (again, to the best of my understanding) the Court refused to grant an extension, it is likely that the challenge is now (for the time being, at least) infructuous. Nonetheless, we have probably not heard the last of this. This post considers some of the issues involved.

This ordinance makes certain educational qualifications a necessary pre-requisite for contesting local government (Panchayat) elections.  The petitioners have argued that the Ordinance is discriminatory, and “abrogates their constitutional right to contest elections.” They contend that in light of low literacy levels in Rajasthan, the Ordinance is especially slanted against the rural poor. Others have pointed out the gendered impact of the Ordinance, which will act to exclude women on a much larger scale than men.

The contention that literacy requirements are designed to exclude already marginalised groups from the political-democratic process is neither new, nor limited to India. As the historian Alexander Keyssar notes, in his magisterial account of the history of the right to vote in the United States, property and/or literary qualifications were consistently used to constrict the scope of the right to vote, excluding, at various points, landless labourers, women and blacks. The link is not difficult to spot: access to education is mediated by socio-economic status. The constituency that has not received a basic formal education is most likely to be overwhelmingly poor (economic reasons), female (social and economic reasons), and migrant.

Whatever we may think of the legislative wisdom of the Ordinance, the constitutional challenge, nonetheless, has to overcome a significant hurdle. This is because the “right” to vote (and, by extension, the right to run for office) has never been considered by the Supreme Court to be a “constitutional” right. The Court has repeatedly stated that it is (albeit “anomalously”) a pure statutory right, created by law and therefore regulated by it. For instance, claims that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) have been dismissed on the ground that because there is no “antecedent” right to stand for election, there is no constitutional violation. Citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law.

This was the reasoning of the Supreme Court in an analogous case in 2003, called Javed vs State of Haryana. In Javed, a provision of the Haryana Panchayati Raj Act stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children.” The constitutionality of this provision was challenged under Articles 14, 21 and 25. A three-judge Bench of the Court rejected the challenge.

At the heart of the Court’s Article 14 reasoning was the proposition that since the right to stand for election is not an antecedent constitutional right, standard principles of rationality review under Article 14 will apply. It observed:

“The classification is well-defined and well- perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.

Responding to the contention that the number of children one had bore no relevance to one’s capabilities to discharge the duties of one’s elected office, the Court held that “we have already stated that one of the objects of the enactment is to popularize Family Welfare/Family Planning Programme.” Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny.

One can easily see how a similar argument will squarely apply to the Rajasthan Ordinance. By making literacy a pre-requisite to contesting local elections, the “objective” is to promote literacy in India (something nobody can have an objection to). That literacy bears no relevance to one’s ability to perform the duties of electoral office is – per Javed – irrelevant, because the legislative policy is something else altogether.

Notwithstanding this, one must also note that the understanding of the place of voting and elections within the constitutional scheme has changed over the last decade. In Union of India vs Association for Democratic Reforms, decided one year before Javed, the Supreme Court distinguished between the “right” to vote (statutory) and the “freedom” to vote (constitutional). This latter freedom was grounded in Article 19(1)(a) (freedom of speech and expression). The Court invoked the familiar argument that at the heart of the 19(1)(a) guarantee were ideas of republican democracy. Consequently:

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.”

In 2013, this view was affirmed by the famous “NOTA judgment” of the Supreme Court. The directions to include a “None of the Above” option in the EVMs was grounded in the reasoning that voting – as an integral part of the democratic process – is protected expression under Article 19(1)(a).

Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? When examining the NOTA judgment, I’ve suggested that the only way of reconciling the two is as follows: the legislature is permitted and entitled to regulate the election process (which it does through the Representation of Peoples Act, and other similar statutes). The legislature can prescribe the modalities of how elections are to be carried out, and thus it can (within reason) determine how the freedom to vote is to be exercised. However, if the legislature makes a law that regulates or restricts not how the electoral process is to be carried out, but who is entitled to participate in it, then such a law must be subjected to rigorous scrutiny by the Courts – because that goes to the very heart of the constitutional freedom itself.

The right/freedom to vote, and the right/freedom to stand for office are conceptually inseparable, as they form equally integral parts of the democratic process. Consequently, the same logic applies to the latter. Admittedly, Article 84 of the Constitution (dealing with the legislature) requires candidates “possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”, thus expressly envisaging the possibility that Parliament may pass a law limiting the entitlement to participate in the democratic process on the basis of certain qualifications. Nonetheless, the freedom-of-voting decisions of the Supreme Court indicate that legislation that directly disenfranchises persons (by ‘disenfranchise’, I mean both the right to vote and the right to stand for office) ought to be subjected to more rigorous scrutiny than a ‘rational review’ standard.

In particular, the State should not be allowed to introduce extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation. This would amount to what is called an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution. Secondly, the State should be required to justify the relationship between the restrictions that it has imposed, and the fundamental place of the electoral process in a republican democracy. For instance, a law that prohibits persons with criminal convictions from standing for elections has a demonstrable nexus with the role of elections in a the democratic process. A law that prohibits persons on the basis of literacy does not.

Republican democracy is based upon the core idea that every citizen has the freedom to participate in the workings of democracy, whether by voting or by standing for elected office. Every limitation upon this freedom is problematic. This is especially true when the limitation affects those most marginalised by the political process. Consequently, I would argue, with respect, that the Court was incorrect in dismissing the petition, because there are crucial constitutional issues involved. If this case comes back before the judiciary, it is to be hoped that some of these issues will be considered.

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