ICLP Round Table: Ornit Shani’s “How India Became Democratic” – I: Laying the Foundations

(Last month saw the release of Ornit Shani’s How India Became Democratic, the fascinating story of independent India’s first general election. Over the course of this week, The Indian Constitutional Law and Philosophy Blog will host a round-table discussing the book. Suhrith Parthasarathy, Professor Anupama Roy, and myself will be commenting on the book, and at the end, Ornit Shani will respond.

We begin with Suhrith’s essay, introducing some of the main themes of the book, and their impact on Indian constitutionalism.)

—

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it,” said Learned Hand in his famous address at New York’s Central Park in 1944 to an audience of newly naturalised American citizens. “No constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” These words, as the ACLU’s national legal director David Cole argues in his book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, captures an important truth and also simultaneously somewhat overstates the case. Although a constitution is unquestionably important in memorialising a people’s collective commitments, in helping develop a democratic culture, there can be little doubt that the ultimate protection of liberty flows not from such guarantees—from an independent judiciary or from principles of separation of powers and federalism—but from the pure pursuits of a state’s citizenry. In his book, Cole relies on three broad themes to make this argument: on the campaign for same-sex marriage in America; on the Second Amendment and the right to bear arms; and on the rights of those accused of terrorism and held at Guantánamo. Each of these represents a case of a civil society campaign succeeding against long odds. It is precisely one such story, perhaps even more telling than the victories that Cole cites, which Ornit Shani tells in her stirring new book, How India Became Democratic: Citizenship and the Making of the Universal Franchise.

Shani’s book blazes a trail because it shows us how citizenship was “made and contested on the ground,” how India’s prospective voters acted as engaged citizens even before the Constitution came into force, and well before the country’s fundamental guarantees were set in stone. The creation of the suffrage, through a universal adult franchise, which we, today, tend to take for granted, was a consequence of radical thinking, of rewriting, as Shani says, “the bureaucratic colonial imagination.” While some of the institutions that make the present-day democracy in India have their antecedents in colonial rule, the universal adult franchise isn’t a consequence of any such legacy. It is a product rather of a uniquely Indian exercise, driven from the ground by Indians of generally humble backgrounds.

“Fundamentally, the concept of an electoral roll that would bind all adults together as equal individuals was anathema to colonial administrators,” writes Shani. As a result, “they designed voter lists and registrations forms that divided the electorate into at least three types of constituencies: general, European and Mohammadan.”

And, what’s more, the electorate contained various other qualifications, such as ‘Husband pays income tax, literacy’; and included a ‘special provision regarding names of women.’ The very idea of expanding the franchise to women, Shani shows us, was a concept that proved especially difficult for colonial bureaucrats to grasp.

The notion that India’s democracy would be secured on the basis of a universal franchise, which was agreed on at the very beginning of the Constituent Assembly’s debates in April 1947, was, therefore, already a product of revolutionary thinking. But that this principle could be realised, in the midst of partition, which led to the displacement of an estimated 18 million people, and the killing of approximately one million people, and in the midst of integrating the princely states into the Indian republic, was an achievement of astounding proportions. Ultimately, the franchise helped expand the electorate to more than 173 million people, about 85 percent of whom had never voted in their lives, and a vast majority of whom, as Shani points out, were poor and illiterate.

As invigorating, though, as the story on the bureaucratic excellence that helped drive the universal franchise is, How India Became Democratic tells an even bigger tale. It busts the conventional understanding, for instance, that the Constitution was a gift to India from an enlightened few, from India’s famous nationalist leaders. It shows us that common Indian people were “already engaged with and demonstrated an understanding of the constitution even before its enactment.” The process of constitution making, Shani argues—and indeed shows us through letters, petitions and exchanges—was greatly informed by reaction on the ground. The Constituent Assembly Secretariat [CAS], which was managed by a small group of bureaucrats, was tasked with the job of preparing the first draft electoral roll on the basis of universal adult franchise. In performing this exercise, the CAS, which worked under the guidance of the constitutional adviser, BN Rau, was able to observe closely not only the direct consequences of its various actions, but also how the Constitution that would eventually be made was likely to tangibly affect people’s political rights and aspirations. This process of preparing the electoral rolls using the draft constitutional provisions as its basis, Shani writes:

“not only turned the idea of the universal franchise into a reality, but also generated debates on the constitution outside the Constituent Assembly. Various civic organisations and administrators engaged with an array of constitutional provisions. In that context, the future constitutional vision as a whole was deliberated, interpreted, tested, and forged.”

Directing this entire campaign was a wide-ranging commitment to equality. In many ways this belief in equality, as the book shows us, went beyond traditional conceptions of liberalism, allowing, in some cases, for classifying people differently in a bid to ensure a larger fairness in the process. A complaint from the president of Devicolam Taluq Travancore written in July 1948 to the President of the Constituent Assembly exemplifies how a basic pledge of equality steered the process of making the rolls.

According to the complainant, some 1,20,000 Tamilians residing in Travancore were being denied voting rights in the state even though Travancore had acceded to the Indian Union. These people, the complaint pointed out, had emigrated to the area over 50 years ago, and had had children born there. “To-day there is none to represent our cause either in Travancore Government or Indian Union,” wrote the president of the Devicolam Taluq Travancore. “When India is fighting for the franchise and other rights of her people in South Africa and Ceylon I am fully confident that your Honour will immediately take up this matter with the present Congress Government now functioning in Travancore and get the most coveted right of voting and other privileges same as that a Travancorian enjoys in the State.”

In response to this grievance, a member of the CAS prepared a note noting that the government of Travancore had refused to register Tamilians in the electoral roll because they were not naturalised subjects of the state. Similar rejections had been carried out in the Cochin state too, and the government of Tripura had also undertaken an exercise to determine a basis for state citizenship. The CAS’s joint secretary ultimately wrote to the chief secretary of the Travancore Government arguing that under the draft Constitution of India there would only be one common law of citizenship and that states could not disenfranchise any of its residents by imposing their own conditions of naturalisation.

To this, the chief secretary answered that the common law of citizenship cannot alter the position of Tamilians in the state, “as neither in law nor in fact is there any necessary connection between citizenship and voting. Voting is a right which a citizen obtains by showing himself possessed of the qualifications which are established by the state in which he resides. Matters pertaining to suffrage will have to be regulated by the state, and it will be for the state to determine who shall vote at elections.”

The Joint Secretary’s final rejoinder was rather telling. The state can no doubt provide qualifications for the purposes of voting, he wrote in his letter, but those qualifications must not be inconsistent with the provisions of part III of the draft constitution, which enumerated the various fundamental rights. Clause (1) of Article 9 of the Draft Constitution [which is today Article 15], the Joint Secretary wrote, “prohibits discrimination against any citizen of India on the ground only of place of birth. If a citizen of India after the commencement of the new Constitution possesses all the qualifications prescribed for voters born in the State, it will not be permissible for the State to disqualify him from voting merely on the ground of place of birth.” What’s more, the Joint Secretary also highlighted that a new article 289B had been proposed, which, on adoption, would entitle every citizen of India to be registered as a voter at elections to the State legislature.

The Travancore government’s objections captured two primary arguments that were made by many in power during the time. One, that there would exist no general, fundamental right to vote, and two, that elections would be an essentially federal process, with separate election commissions being installed for voting at the centre and for voting in each of the states. It was the nature of these conflicts that made clear to the Constituent Assembly that a general principle of equality, both procedural and substantive, must guide the entire electoral process, and that there could be no separate electorates, one for the centre and one in each of the states.

Now, originally, the Fundamental Rights Sub-Committee and the Minorities Sub-Committee of the Constituent Assembly had agreed that a nominal right to vote should be included in the chapter on fundamental rights. The draft article read as follows:

“(1) Every citizen not below 21 years of age shall have the right to vote at any election to the legislature of the Union and of any unit thereof, or where the legislature is bicameral, to the lower chamber of the legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency as may be required, by or under the law. (2) The law shall provide for free and secret voting and for periodical elections to the Legislature. (3) The superintendence, direction, and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of election tribunals shall be vested in an election commission for the Union or the unit, as the case may be, appointed, in all cases, in accordance with the law of the Union.”

However, the Advisory Committee on Minorities, Fundamental Rights, etc., headed by Sardar Vallabhbhai Patel, while agreeing with the substantive content of this article, recommended that the clause be included not in Part III, which enumerated the various fundamental rights, but in some other chapter of the Constitution. Patel offered no specific explanation for his committee’s decision, but the move to include the right to vote in a separate part of the Constitution flowed not from any belief in its relative lack of importance, but was likely a judgment founded on form, that elections in India needed separate constitutional grounding with an all-encompassing series of articles and clauses.

If anything, the exchange between the Joint Secretary of the CAS and the Chief Secretary of the Travancore Government only shows us that it was always the intention of the Constitution’s makers—guided as they were by debates that occurred outside the Constituent Assembly—to instil in the electoral system a basic guarantee of fairness. Unfortunately, though, this struggle for equality, these discussions that made clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III, haven’t informed the Supreme Court’s interpretive process. Time and again, the court has rejected arguments for an inalienable, fundamental right to vote. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), a 3-judge bench of the court, for instance, held that the “right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute.” To the court, therefore, the right to vote was merely a license granted by statute that could be taken away just as easily by a legislative act. More recently, in Rajbala v. State of Haryana, (2015), the court cited with approval its own decision in Javed & Others v. State of Haryana & Others, where it had held, rather absurdly, that:

“…right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right…”

These distinctions that the court has drawn between fundamental rights and constitutional and statutory rights ignore the serious contests that went into the conception of the universal franchise. They show us that the fundamental rights enshrined in Part III cannot be isolated from the electoral process. As How India Became Democratic argues, the preparation of the rolls provided a “concrete opportunity for people and administrators across the country to use the constitution…people discussed the constitution and suggested amendments because they saw the constitution as a means of resolving their disputes with the state and of securing their fundamental rights.” Therefore, any law that seeks to restrict a person’s right to vote, or a person’s right to contest an election ought to be tested not only on the provisions of Part XV, which is devoted to elections, but must also fulfil the basic conceptions of equality and liberty enshrined in the various different guarantees of Part III. The right to vote and the right to contest elections cannot be severed from each other. Indeed, they cannot be severed from the basic, foundational promises that the Constitution makes. The making of the universal franchise, as Shani’s book shows us, was a product of a revolution, a movement that had at its base a belief in equal treatment, a belief in principles of inclusiveness. Ignoring this history will de-democratize the Republic, tarnishing a constitutional culture built through the most rigorous contestations on the ground.