On this blog, I – as well as guest essayists – have written extensively about Rajasthan and Haryana’s moves to impose educational and other restrictions upon the right to contest Panchayati Raj elections. One way or another, this issue will be resolved next week, when a two-judge bench of the Supreme Court decides the constitutional validity of Haryana’s Panchayati Raj Act (the operation of the Act has been stayed in the meantime). Recall that the Haryana Act (as amended) disqualifies people from contesting Panchayat elections if they haven’t been educated beyond Class VIII (the bar is lower for certain constituencies), if they do not have a functional toilet in their house, and if they owe arrears of electricity bills, agricultural cooperative loans, etc. Previously on this blog, we have argued that such provisions are unconstitutional on the grounds of Article 14 (equal protection of laws), 15(1) (documented disparate impact upon women), and 19(1)(a) (the freedom to vote being part of the freedom of expression). In this essay, I want to explore the framers’ ideas about suffrage, and how educational and property-based disabilities are inconsistent with those ideas.
Relying upon the Constituent Assembly Debates to advance an argument against electoral disabilities is a perilous enterprise. This is for two reasons. First, the Constitution itself seems to leave the matter of electoral qualifications to the statute. Article 84, which deals with eligibility for membership of Parliament, requires a candidate to be a citizen of India, at least 25 or 30 years 0f age (depending upon the House), and possessing “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.” Article 102 disqualifies an individual from membership of either House if he holds a governmental office of profit, is of unsound mind, is an undischarged solvent, is a foreign citizen, or “if he is so disqualified by or under any law made by Parliament.” Part IX of the Constitution, which contains the provisions for Panchayati Raj, makes no substantial departure from this position. Article 243F states that a person may be disqualified from being chosen as a member of the Panchayat if “he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned… [or] if he is so disqualified by or under any law made by the Legislature of the State.” A combined reading of all these provisions suggests that it is open to the legislature to introduce disqualifications through legislation (such as the Representation of the People Act).
Secondly, there is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment made by K.T. Shah, that literacy requirements be incorporated into the Constitution, Ambedkar replied that “I think that is a matter which might as well be 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.” This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given to Parliament under the omnibus clauses of (what became) Articles 84 and 102, included the power to prescribe literacy qualifications.
I will argue, however, that the overall tenor of the Constituent Assembly Debates makes it clear that educational requirements go against the concept of suffrage and democracy that the framers meant to write into the Constitution. As Dworkin has correctly pointed out, there might often be a clash between the framers’ intentions about the words they were using, and what they intended the words would do – in other words, between the concepts that they laid down in the Constitution, and the concrete conceptions that they thought were the correct interpretation of those concepts. I will attempt to show that Ambedkar’s conception of suffrage and political candidature that is reflected in his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.
Let me foreground this discussion by drawing two important distinctions about the electoral process. First: historically, voting (and concomitantly, standing for elected office) has been considered to be either a privilege (i.e., a benefit extended to you by the State in return for some service, such as fighting in the army, paying tax etc.), or a right. Secondly: the purpose of an election can either be that it is expected to return the best (or most competent) candidate to power, or it can be that the person chosen by the electors is returned to power.
These distinction are important because of the following reasons. If voting/standing for office is a mere privilege, then obviously there cannot be any antecedent claim if the legislature decided to take it away by passing a law to that effect. On this interpretation, the omnibus clauses in Articles 84 and 102 provide a carte blanche to the legislature to impose whatever disqualifications it chooses to. If, on the other hand, voting is a right, then the discretion of the lawmaker to take it away must accordingly be curbed: a law taking away a right has to pass a higher threshold of justification. Secondly, if the purpose of the election is to select the most competent candidate, then conceivably, the legislature may impose a priori disqualifications on the basis that these qualifications create a preliminary threshold of competence, ensuring that people who fall below this threshold aren’t even eligible to participate in the process (whether as electors, or as candidates). In fact, this is precisely the justification that Rajasthan and Haryana have used in defence of their laws: Rajasthan drew a link between education and accountability, for instance. On the other hand, if the purpose of suffrage is to give effect to the choice of the people, then there is no justification for limiting that choice on the assumption that by allowing everyone to contest, there is a possibility of the wrong, or less qualified candidates, being chosen.
With this in mind, let us return to the Constituent Assembly Debates. The first important thing to note is that there was a significant dispute in the Assembly over whether or not to enshrine the principle of universal suffrage into the Constitution. In his proposed amendment, H.V. Kamath noted the extent of illiteracy in the country and the dangers it presented, and expressed regret that the franchise itself had not been restricted on grounds of literacy. His amendment – which Ambedkar rejected in the quotation abstracted above – was a second-best option aimed at limiting the damage wrought by universal suffrage. For Alladi Krishnaswamy Ayyar, on the other hand, this was one of the crowning achievements of the Constitution. He noted:
“More than any other provision in the Constitution. I should think the boldest step taken by this Assembly is in the matter of universal adult suffrage with a belief in the common man and in his power to shape the future of the country.”
Subsequently, during the final debates on 23rd November 1949, he observed that “in spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule and in the full belief that the introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life, the comfort and the decent living of the common man. The principle of adult suffrage was adopted in no lighthearted mood but with the full realisation of its implications. If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… This Assembly deserves to be congratulated on adopting the principle of adult suffrage and it may be stated that never before in the history of the world has such an experiment been so boldly undertaken.”
That same day, R.V. Dhulekar also stated that “a very great achievement is adult suffrage. Every person who is twenty-one years of age, who does not possess any of the disqualifications enumerated in the Constitution, has an opportunity of rising to the Presidentship, the highest honour that this country can give. And that is a great thing.” Soon after, Frank Anthony decried what the Assembly had done, observing that “I am one of those who can only express the very sincere hope that when the next elections are fought or the elections after that and with an electorate which will be predominantly illiterate, with an electorate which will be predominantly unaware of exercising the franchise on a basis of being able to analyse political issues in a rational way, that this electorate will not be stampeded by empty slogans by meretricious shibboleths into chasing political chimeras which will not only lead to chaos but to the very destruction of the democracy which we have chosen to give them.”
What these exchanges reveals is that there was a common understanding that the Constitution had conferred universal suffrage (and, at least for Dhulekar, by extension, the right to stand for elections), both among its supporters and its opponents. As the excerpts show, opponents feared that an illiterate populace would fail to exercise its choice in the “correct” way; supporters relied upon the basic idea that democratic legitimacy is founded upon popular sanction. But whether supporter or opponent, there was consensus over what the Constitution actually said. This was reflected finally in what are now Articles 325 and 326 of the Constitution. Article 326 states that “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election…” Article 325, by way of abundant caution, states that “no person shall be ineligible for inclusion in any such [electoral] roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”
The phrase “shall be entitled” in Article 326 answers our first question: suffrage, under the Constitution, is a question of right, not of privilege. And the rejection of the arguments for literacy requirements along with their underlying bases as potential disqualifications (the language of Article 326 is exhaustive) answers the second question: the vision of democracy is one based not on ensuring the most “competent” candidate wins (by whatever a priori definition of “competence”), but on giving effect to the people’s choice. Obviously, prior screening out of candidates violates that principle.
But what of Articles 84 and 102, it may be asked. Does not the Constitution itself stipulate the principles of disqualification? Let us read the disqualifications of 102 more closely: holding an office of profit, unsoundness of mind, being an undischarged insolvent, and not being a citizen of India. What is common to these is that they relate not to the quality of the individual candidate, but to maintaining the integrity of the electoral process. Holding an office of profit, citizenship, unsoundness of mind and insolvency are not related to how well a candidate might perform while in elected office, but are aimed at tackling possible conflicts of interest and propensity to corruption (admittedly, unsoundness of mind is uneasily close to a candidate-based disqualification, although it can certainly be argued that there is a qualitative difference between illiteracy and unsoundness of mind). This also helps us in interpreting the omnibus clause: “if he is so disqualified by or under any law made by Parliament.” Disqualifications enacted in law must also cleave to the principle of maintaining the integrity of the electoral process (e.g., disqualification of all persons convicted of cognisable offences), but cannot be imposed simply on the basis of some a priori ideas about what makes a good or effective candidate. As Ambedkar himself noted during the debate, the purpose of putting in a few of the disqualifications into the Constitution was to provide for some “basic” principles. What I have tried to argue is that the disqualifications that the Assembly did finally put in are to be understood in the context of the two key questions I asked earlier: the nature of suffrage, and the purpose of elections. The answers that come out of a study of the Debates make the case that any further disqualifications imposed by Parliament must also be faithful to them. The restrictions under the Rajasthan and Haryana Acts manifestly fail to be: educational requirements, requirements of toilets, and of clearing existing arrears are all justified by an a priori invocation of the probably competent candidate. This goes against the principles of universal suffrage, and also, by denying the voters the exercise of their full and unconstrained choice by screening out certain candidates, it defeats the reason why the framers put in place the mechanism of elections as the bulwark of Indian democracy.
How might this be tangibly used in the constitutional challenge to the Act? One option is under the broad Article 14 argument. As held by the Supreme Court in the Sanction for Prosecution case, under Article 14, the State must not only show intelligible differentia and rational nexus, but also a legitimate purpose. We have tried to argue here that selection of the most “competent” candidate is not a legitimate purpose in the context of elections. Consequently, if the State cannot find any other justification but this, the requirements of the Act must fail Article 14 scrutiny.
N.B. Much of the argument here has focused upon the educational disqualification. It may be noted that the property disqualification (having a functional toilet in your house) is an even more blatant constitutional violation. In fact, on 2nd June 1949, as part of the same speech I quoted at the beginning of this essay, Ambedkar expressly stated that it was not the purpose of the omnibus clause to permit property-based disqualifications.