On October 27, final arguments before the Supreme Court will resume in the Haryana Panchayati Raj Amendments case, dealing with the constitutionality of educational, property and debt disqualifications upon the right to run for elected office. On this blog, we have covered the issue extensively. In my last post on the subject, I will argue that election disqualification cases require a higher threshold of judicial review under Article 14 than the near-toothless “rationality” standard.
The core legal issue in the case turns upon Article 14, which guarantees equality before law and equal protection of laws to all individuals. Under the two-pronged Article 14 test, first established by the Supreme Court in Anwar Ali Sarkar, any legislative classification that allocates benefits and burdens on a differential basis, will be unconstitutional unless:
(a) there is intelligible differentia between the classes created
(b) the differentiation bears a rational nexus with a legitimate governmental objective
In the Panchayati Raj cases, there is no dispute that the classifications are intelligible. The dispute centres upon (b). The State argues that there is a “rational nexus” between education, and the performance of administrative functions by elected officials in local government. With the property (i.e., needing to have a functional toilet in your home) and debt disqualifications, the State’s claim is vaguer: it goes, roughly, that people without a functional toilet or with outstanding debt repayments cannot serve as model citizens, whose example can be followed by the rest of the electorate. I will leave this aside for the moment, and focus on educational disqualifications, since that seems to be the strongest argument in favour of the State.
Two further questions arise:
(a) Who bears burden of demonstrating the connection between education and the performance of public functions – the government or the challengers to the law? (Article 14 case law is divided on this point.)
(b) Even if there is some connection between the two, how close, or “tight” must that connection be, in order that the government may legitimately strip citizens of their right to contest elections? This, in turn, has two aspects:
(b1) How strong must the evidence be that shows a correlation? Is a mere statistical correlation sufficient, or is something more required?
(b2) Must the law in question be framed so as to achieve its goal while curtailing the rights of citizens to the minimal extent necessary? In technical terms, is the law “narrowly tailored”? Or, to put it in other terms yet, is there another avenues open to the government to achieve the same goal without restricting the rights at issue?
Under the United States Equal Protection clause, these issues are addressed under a three-pronged tiered structure of judicial scrutiny. The lowest tier is “rationality review”, commonly applied to economic and tax legislation, which matches our basic Article 14 test. Then there is “intermediate scrutiny“, which applies to sex discrimination and commercial speech cases, inter alia. This is akin to a proportionality test, where the State is required to show a substantial fit between the law and some important governmental objective, but need not show an exact fit. The highest standard is “strict scrutiny”, which applies, for instance, to affirmative action. Here, the State must show that the law is “narrowly tailored” to achieve a “compelling State interest”. The varying levels of scrutiny are meant to track the importance of the constitutional rights at stake.
At least in the context of discrimination cases, the Indian judiciary has not yet seen fit to adopt a tiered model under Article 14. Part of the reason for this is that the structure of our Constitution is different. Articles 15 and 16 – for which there is no equivalent under the American Constitution – expressly prohibit discrimination on grounds of caste, race, sex etc. For this reason, discrimination jurisprudence need not be drawn out from an omnibus Article 14, but finds a ready home in Articles 15 and 16.
Nevertheless, in the 1970s, the Indian Supreme Court realised that a rationality review standard was inadequate. This is because it is far too deferential to the State. A “rational connection” between a classification and a purpose is an extremely low threshold; in fact, in certain cases, it will be no threshold at all, as any classification will have a rational connection with some purpose. Unless the State is unwilling to state that purpose in Court (for political or other reasons), or if the purpose is itself unconstitutional, Article 14 provides little more than a parchment barrier against State action.
The Supreme Court’s response, however, was unfortunate. Instead of developing a tiered approach to Article 14, on the basis of the interests involved, it created a new “arbitrariness” test, holding that “equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law.” But if rationality review was too deferential to the State, the “arbitrariness” test presents, in a sense, the opposite difficulty: it vests unconstrained discretion in the hands of judges, with no guidelines for determining what must happen for a legislation to be considered “arbitrary”. A good example is Nargesh Mirza’s Case, where the Supreme Court held that terminating employment upon first pregnancy was arbitrary, but terminating it upon the third pregnancy was not!
The arbitrariness test of Article 14, therefore, is intellectually indefensible. Are we then stuck with the rational review standard, which – it would seem – would let the government clean off the hook in cases that are as important as the Panchayati Raj case? I would suggest not – and further, that in cases relating to election disqualifications, the Court must hold the State to a higher threshold under Article 14. Not only must the evidentiary burden of justifying its claims fall upon the State, but at the very least, the State must demonstrate a substantial and proportionate – if not strict – relationship between the classification and the goal. My argument rests upon the nature and justification of judicial review over the action of elected representatives in a democracy.
Consider the basic question first: under normal Article 14 cases, why do we require only a low threshold of “rationality” between the classification and the purpose? There are two reasons for this. One, of course, is that the legislature has greater expertise to frame policy than courts do. As the Court pointed out in Federation of Hotels and Restaurants Association of India, in the context of economic legislation, “having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal-policy legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc., for taxation.”
But the other – and even more important – is that the legislature has the legitimacy to do so because it is elected by the people, and the Courts aren’t. Classically, we think of courts as counter-majoritarian institutions – their job is to ensure the protection of individual rights that might be jeopardised in a majoritarian system of elections/representative democracy. In other words, legislative policy is presumptively legitimate, and therefore entitled to judicial deference, because it is the product of a body that can trace its authority to the people (through elections). Judicial review itself gains its legitimacy – and by extension, its limits – through its function as a counterweight against the possible abuses of this process.
But this leads to the following corollary: if the legislative policy tries to change the ground rules of the electoral process itself, then it loses the presumption that operates in its favour. This is because every law that restricts the franchise, or restricts who can stand, impacts the democratic legitimacy of the body that will be formed as a result of those restrictive elections. Consequently, the primary basis of the low Article 14 standard of rational review is undermined when the law itself takes away the foundation of why the low standard is justified in the first place. Therefore, for laws that affect the political process, such as restrictions on voting and standing, should be subjected to a higher standard of review. The Court should place an affirmative burden upon the legislature to provide evidence that shows that its restrictions are necessary to achieve the goal that it seeks to achieve, and are narrowly tailored. What the Court is seeking to protect here is not the value choices that are the outcomes of the legislative process, but the integrity of the process itself, which creates the legitimacy of the values that emerge.
In the United States, this goes by the name of “representation reinforcement”: the Courts’ task is to zealously safeguard the process through which representative democracy gains its legitimacy (i.e., through elections). Its origin is in the famous Footnote Four in the Carolene Products Case, which while maintaining that legitimacy constraints only allowed the Court to conduct a rationality review in economic classification cases, an exception was made – inter alia – for laws that would distort the political process. The reason for this – to repeat – lies no in the constitutional text, but in the underlying structure of representative democracy set up by the Constitution. In the words of constitutional scholar John Hart Ely, what the Court needs to look at in employing a higher standard of scrutiny is not the abstract importance of the values at stake, but “whether the opportunity to participate either in the political processes by which values are appropriately identified and accommodated, or in the accommodation that those processes have reached, has been unduly constricted.“
The representation-reinforcing role of the Court was taken to its apotheosis by Chief Justice Earl Warren of the United States Supreme Court in the 1960s. Writing the judgment of the Court in Kramer vs Union Free School District, Justice Warren provided the most lucid justification of the argument being made here:
“When we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a “rational basis” for the distinctions made are not applicable… the presumption of constitutionality and the approval given “rational” classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.”
Closer home, in Subhash Chandra, the Indian Supreme Court cited John Hart Ely in a paragraph that is of some importance:
“Courts must guard against that protective discrimination clauses are not used as pretexts for an invidious purpose. The political compulsions and extraneous vote considerations in the functioning of the legislature are mentioned by a prominent political science scholar, John Hart Ely in his landmark book, Democracy and Distrust. He says that “special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of ‘flushing out’ unconstitutional motivation.”… Protective discrimination may be used to curtail the extremely hard won civil and political rights granted by the Constitution. We have the backdrop of freedom struggle to engage with in this regard. Rights of the accused as part of the fair trial rights, equality rights, right to liberty and personal autonomy and other such rights are to be fiercely protected against any blind policy onslaught of the times. The government must have a overwhelming compelling interest to justify limitations on the freedom of association, free exercise of religion, free speech, right to vote, right to travel et al.”
Notice something curious here: the freedom of association, the free exercise of religion, free speech and the right to travel are all fundamental rights that are part of the constitutional text. (19(1)(c), 25, 19(1)(a), 19(1)(d)). In the middle of listing out these rights, the Court also includes “the right to vote”, which – as we have heard many times, often from the Court itself – is a “mere statutory right”. Why is this? The answer, I suggest, is that although the right to vote is not part of Part III of the Constitution, safeguarding its effective exercise is a key aspect of the judicial role in deepening and preserving the democratic structure set up by the Constitution.
Let us now come back to Article 14, and the list of questions I outlined at the beginning of the essay. A higher threshold of scrutiny would require that:
(a) The government bears the burden of demonstrating the connection between the law and the purpose it claims to fulfill. The government must provide tangible evidence that absence of education jeopardises and undermines the ability of an elected representative to perform his functions. The Court cannot simply take the government’s claim at face value, on the ground that it is possesses the competence and expertise to make such judgments.
(b1) The evidence must be strong, going beyond mere correlation.
(b2) Most importantly, the State must show that its proposed restriction is narrowly tailored to achieving the goal, or at the very least, is a proportionate way of achieving the goal. In this context, various other provisions of the Panchayati Raj Act – such as those providing for extensive assistance to elected representatives – will become important. The government must show that a complete prohibition on standing is required to preserve the functioning of the administration; other solutions – such as the one just mentioned above (or, for that matter, a sponsored crash course for successful candidates after their election) will not serve the purpose equally well. This will also ensure that there is no repeat of situations such as that in Javed vs State of Haryana, where the State’s justification for limiting the right to stand to persons with less than two children was the completely unrelated purpose of encouraging the State’s family planning program!
By imposing these burdens upon the State, the Court can ensure that a move that potentially deprives representative democracy of its legitimacy by screening out candidates before the people even have a chance to exercise their choices at the ballot box, is being taken only under a situation of strict and urgent necessity. Notice that the argument here is not that all restrictions upon participation in the electoral process are automatically unconstitutional. It is that the government must be held to a very high standard of justification before such restrictions can be allowed to pass. This requires a tiered model of Article 14 review, and because of the centrality of elections to the democratic process, I suggest it is one that the Court should adopt.