The Colonial Antecedents of the Supreme Court’s Jurisprudence on the Rights to Vote and Stand

(In this guest post, Rohan Kothari, who represented one of the interveners before the Supreme Court in the recently concluded hearings on the constitutionality of the Haryana Panchayati Raj Act, discusses the tangled history of the jurisprudence on the right to stand for elections)

Oral arguments in the dispute over the amendments to the Haryana Panchayati Raj Act, 1994 were concluded in the latter half of October, and the matter is reserved for judgment. However, in the interim, Justices Chelameshwar and Sapre had allowed parties to hand over additional written submissions dealing with certain issues that were discussed in haste during the proceedings. What is to follow is slightly altered version of one of the submissions made to the Court with regard to the nature and status of the right to vote and right to contest.

Unfortunate as it is, there is still no clear line of judicial thinking on the question of what is the meaning of this right to vote and right to contest. We still are hazy on whether they are symmetrical or not, whether they ought to be included as an implicit part of Part III of the Constitution, whether they occupy a separate place in the Constitution as “constitutional” but not fundamental rights, or are they mere statutory rights as contended by the State of Haryana throughout the proceedings.

I wont go into detail here as to why a conclusion on the status of the right to vote and contest was important to the dispute, since previous posts on the blog have dealt with that point quite well. But suffice it to say, should the Court find that the right to contest is a mere statutory right, the chance of it finding the amendments to the Haryana Act unconstitutional might be somewhat lower.

While reviewing the Supreme Court’s slightly awkward and sometimes awfully contrary determinations of the right to vote and contest, there came up a need to find the source of the dispute, the origin of the controversy. And this took us back to 1952-to the Supreme Court’s decision in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (1952 SCR 218), where the rights in question were first discussed. Now this decision becomes important for two reasons: (i) that it was the first time that the right to contest was debated upon, and (ii) the contention of the State of Haryana, that the rights to vote and contest were mere statutory rights and not fundamental or constitutional in nature was derived from a line of cases decided by the Supreme Court, the first of which was Ponnuswami.

In paragraph 19 of Ponnuswami, the Court relied upon the decision of the Privy Council rendered in the case of Joseph Théberge and Anr. v. Phillipe Laudry (1876) 2 AC 108 and observed (as obiter) that the following position of law emerges:

“(1) The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”

One should note here that the context in which these observations were made was that of the powers of the High Court to hear an election dispute, and the effect of the constitutional bar found in Article 329(b) on such powers.

The abovementioned observations have formed the foundations of an election jurisprudence in India that has identified at certain points, the rights to vote and contest as merely statutory, and at other points as constitutional or even fundamental. Given this, we contended that the observations made in Ponnuswami’s Case (and later followed in several other decisions of Supreme Court) were arrived by relying upon the ratio of Theberge v. Laudry, which was decided in a very specific context, i.e., that of colonial England, and as such the same could not be applied to the context of an independent and democratic India.

The decision of the Privy Council in the case of Theberge v. Laudry centered around roughly the same issues that arose in Ponnuswami’s Case– whether the Crown Court (equivalent to the High Court) could entertain an appeal from election petition when there existed a specific statutory provision that prohibited the entertainment of any such appeal, before any court. This is where the the history and scheme of the enactment in question in Theberge v. Laudry became important, as it provided for that vitally differentiation of the decision from the Indian context, making its ratio non-transposable, if not entirely inapplicable.

The Act of Parliament in question in the Theberge v. Laudry was the Quebec Controverted Elections Act of 1875. That Act had repealed an Act of Quebec Legislature of 1872 which was called “An Act to provide for the Decision of Controverted Elections by the Judges, and to make better Provision for the Prevention of Corrupt Practices at Elections.”

 Section 90 of the 1875 Act stated: “Such judgments shall not be susceptible to appeal.”

The Privy Council spoke about the Legislations in the following manner:

“These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their Character. They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assemble to be distinctly and speedily known…”

“…The whole scheme, therefore, of the Act of Parliament is that, once the action of the Superior Court takes places, and the decision of the Superior Court arrived at, the machinery is to go on just as it had formerly gone on inside the Legislative Assembly;- writs are to be issued, seats are tot be taken, other proceedings are to be had, as would have been the case before the Court was called into operation, and when the Legislative Assembly decided these matters by its own authority.”

The Council went on to observe that:

“Now, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members. Those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place.”

 The quoted paragraphs tell us that the rights to elect and those of electors were administered in a very different fashion in England at the time when this decision was rendered. Since supremacy existed with the legislative (Parliament), the rights of the members of the legislative were also, originally, adjudicated upon by the legislative. This power to adjudicate upon these rights was, as can be surmised from the decision of the Privy Council, vested in a very narrow way. The power vested with a particular Tribunal through the medium of a particular statute, and hence no other court could claim to have jurisdiction over such a matter.

We contended that the rights commented upon in Theberge v. Laudry were administered in a vastly different manner than they are in India. Article 326 of the Constitution provides for universal adult franchise, therefore unlike in Colonial England, the right to elect does not find its origins in the supremacy of the legislature, but in the Constitution. Additionally, while parliamentary privileges are matters outside the jurisdiction of Courts even in India, no legislature in India has ever assumed the powers to adjudicate disputes relating to election petitions. The Constitution does not grant either the Parliament or the State Legislatures such a power, and Article 329 which deals with election petitions, specifies the manner in which such a dispute is to be heard, and by what authority.

It was on this basis that we concluded by stating that the observations made in Ponnuswami’s Case, which formed the basis of a large part of India’s electoral jurisprudence, were not something than could be as easily relied upon as put forward by the State, and that the conclusions drawn (in the several decisions that followed) need to be revisited and reconsidered. Given the reception of the Court in Raja Bala, I’m reasonably sure that this odious exercise might be evaded, but lets hope that the Court at least realizes that Ponnuswami was a little more complicated than it is made out to be.

(The author is a Delhi-based advocate)

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1 Comment

Filed under Article 14, Constitutional History, Equality

One response to “The Colonial Antecedents of the Supreme Court’s Jurisprudence on the Rights to Vote and Stand

  1. Pingback: I·CONnect – What’s New in Comparative Public Law

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