Guest Post: Migrant Workers and the Right to Vote

[This is a guest post by Radhika Goyal and Sharvari Kothawade.]


An unplanned fallout of the COVID-19 lockdown was a gargantuan migrant worker crisis which, six months down the road, is met with no accountability from the Parliament. Some have argued that the wilful ignorance on the part of governments is directly attributable to migrants’ inability to cast their vote and form a concrete electoral base whose interests must be seen to be served (here and here).

In this post we argue that the lack of access to the vote by migrant workers constitutes a violation of their fundamental freedom to vote, read under Art. 19(1)(a) of the Indian Constitution. To that end we, (i) argue that migrants, particularly circular migrants, should constitute a separate class of voters; (ii) demonstrate that this class of voters have a fundamental freedom to access the vote, which is being denied to them; (iii) analyse the existing mechanism of the ballot, including the postal ballot; and (iv) suggest ways to mould it to effectively serve the migrants’ freedom to access the vote.

Migrants as a separate ‘class’ of voters

Migrant workers, especially circular or short-term migrants, constituting tens of millions of citizens, are some of the least represented groups in the ballot (here and here). Circular migrant workers, distinguished from permanent migrants both of the formal and the informal sector, are a predominantly mobile class who alternate between their home states of residence and their host cities of work, throughout the year. A report of the National Commission for Enterprises in the Unorganized Sector in 2007, observed that SC/ST/OBCs who were often landless and lacking in formal education were overrepresented in the group of circular migrant workers (at pgs 96, 128 and 136). Seasonal patterns of harvest and general rural distress requires that they temporarily move to the city for work but many continue to maintain long term familial relationships with their home states. For them, working at host cities are means to maximize savings so as to invest in their long-term futures back home (at page 30). This constantly mobile citizenry is at odds with the sedentary nature of citizenship-based entitlements that are available from the State (such as ration cards), in this case the entitlement of the vote. 

Freedom to access the vote

Every eligible voter is registered with a singular ID at a particular constituency in order to participate in elections to the Lok Sabha, the State Legislative Assemblies and the Panchayat/Municipal elections. The issue of disenfranchisement, faced by circular migrant workers, is not one arising out of the denial of the  right to vote understood as a statutory right and conferred under Article 326 of the Indian Constitution, but as a systemic denial of their freedom to access the vote. The Supreme Court, in the 2003 case of People’s Union of Civil Liberties v. Union of India has drawn a distinction between the “conferment of the right to vote” and the “culmination of that right in the final act of expressing choice towards a particular candidate.” The Court, in a series of cases, including the 2006 case of Kuldip Nayyar and 2013 case of People’s Union of Civil Libertieshas elevated the latter to a fundamental freedom under Article 19(1)(a) holding that “Freedom of voting as distinct from right to vote is thus a species of freedom of expression.”

Fundamental freedoms guaranteed under the Indian Constitution also carry corresponding duties on the State to ensure conditions that enable its enjoyment. The Supreme Court, in the 2019 case of Indibilty Creative v. Government of West Bengal, has recognized this principle and directed the state machineries of West Bengal to ensure adequate protection that would aid and enable the petitioner to truly exercise their freedoms under Art.19(1)(a) and screen their movie.

This fundamental right to access the vote is denied to circular migrant workers in two key ways: first, a voter may only be enrolled to vote in the constituency in which they are ‘ordinarily resident’; and second, they can only access their franchise through in-person voting at their registered constituency. While these are rooted in considerations of electoral efficiency and preventing voter duplication, their underlying assumptions of a sedentary population end up excluding circular migrant workers in obvious ways.

Problems and Possible Solutions

A registered voter has the option to change their constituency after having ordinarily resided in the same. However, circular migrant workers, as temporary visitors, often may not qualify as ‘ordinarily resident’ (as defined in Section 20, Representation of People Act, 1950 read with Form 6, Registration of Electors’ Rules, 1961) in their host cities where they stay for uncertain periods of time. While there is no codified threshold for duration of stay, there is a practical difficulty of obtaining any proof of ordinary residence in their host cities, where they often live in makeshift temporary housing, open settlements and access entitlements like water and gas through a variety of uncertain sources. Their reality is invisibilized in the requirement of documentary proof such as a passbook, rent agreement, and utility bills, none of which may be accessible to them. Circular migrant workers also hesitate to go through this complicated and often hostile process of registering or transferring their vote if they are only temporary visitors.

A potential solution to the problem would be to amend this process to reflect the needs of migrant workers. For instance, the Election Commission of India, has provided an exception from documentation for homeless people, and allowed for verification through block officers in Form 6 of the Registration of Electors’ Rules, 1961. Similar solutions must be explored so that circular migrant workers are provided a voice in the governance of the cities they help build. This would be an important step for those circular migrant workers that come to the same host city for work, year after year. It would also have the benefit of giving migrant workers a direct voice in cities where much of their precarity and marginalization is experienced.

However, it is uncertain whether this would fit with the logic of circular migrant workers who choose to maintain long-term connections in their home states and may travel across various cities for work. A study conducted by Aajeevika Bureau, showed that migrant workers are more likely to be enrolled in their home states than host cities. The report also showed that circular migrant workers had many electoral concerns back in their home states, such as improper removal of names from electoral rolls and continued access to government schemes. In this context, the requirement to vote in-person means that circular migrant workers have to travel to their home states to cast their vote, at great personal cost in terms of their time and money, resulting in dismal voting turnouts. 

We argue that access to the existing scheme of electronically-transmitted postal ballot (ETPB), will allow that subset of circular migrant workers who are enrolled as voters in their home states, and prefer to continue being so, to access the vote. While it will not give migrant workers a direct voice in their city of work, it will introduce the circular migrant workers as a key political constituency in their home states, by enabling participation and representation at the home state and national elections. Political parties, at both the state and national level, will be consequently compelled to take on their cause, through inter-state or centre-state dialogue. 

Extending the Existing Mechanism for Postal Ballots

Section 60(c) of the Representation of People Act, 1951 empowers the Election Commission of India, in consultation with the Government, to notify “classes” of voters who are unable to vote in-person at their constituencies owing to their physical or social circumstances. Once notified, the voters are eligible for the ETPB system, which is a one-way electronic transmission of ballots, where the ballot is both system-generated and protected by dual encryption in order to safeguard against voter fraud. In addition, the postal ballot is subject to oversight by the Returning Officer and through more traditional ways of redressal. This mechanism operates separately from the regular process of in-person voting and doesn’t preclude the opportunity or incentive to permanently migrate and change one’s constituency after having ordinarily resided in the same.

Over the years, there have been several notifications that have attempted to identify new classes of voters, thereby upholding the spirit of free and fair elections for all. Postal ballots have been extended to defence personnel, persons with disabilities and people over 80. In the 2019 general elections, the ETPB system was accessed by 18 lakh defence personnel across the country. In 2019, in the backdrop of a PIL before the Supreme Court, a bill was floated to extend a similar remote voting possibility to over 3.1 crore NRIs in order to “boost their participation in nation-building”.

The challenge before the Election Commission is to effectively identify circular migrant workers, in which they can be guided, but not limited, by the framework of the Inter-State Migrant Workmen Act, 1979. 

Constitutional mechanisms must adapt to societal change, in order to remain relevant. At the time of independence, the universal vote represented a commitment to subversion of economic power structures through political access. In the First Roundtable Conference held on December 12, 1930, Dr. B.R. Ambedkar, staunchly opposing any restrictions on suffrage rights, had stated: “Just as the capitalist must have the power, if he is to have any constitution, to dictate how he shall live on terms of associated life with the labor, surely the laborer is entitled also to have the power to regulate the terms on which he shall live with his capitalist master.” In the globalized world we presently inhabit, it would be a constitutional infirmity, if a mobile working class is effectively denied their franchise due to their socio-economic location. The Prime Minister responded to an established claim for portability of welfare entitlements, by working towards universalizing the ration card. In a similar vein, it is incumbent upon the constitutional machinery to re-infuse meaning into the enduring commitment of- “One person, one vote. One vote, one value”.


[This post was informed by the authors’ research for the Citizens for Justice and Peace’s migrant voter rights initiative.]

Guest Post: Premature Termination of the State Election Commissioner – On the Constitutionality of the Andhra Pradesh Ordinance No.5 of 2020

[This is a Guest Post by Kshitij Maheshwari.]


Introduction

Last month, the Governor of Andhra Pradesh promulgated the Ordinance No.5 of 2020 (“Ordinance”), which amended Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (“Act”) and also framed the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service and Tenure of State Election Commissioner) Rules, 2020 (“Rules”).* Section 200(1) of the Act provides for the appointment of a State Election Commissioner (“SEC”). Section 200(2) of the Act, before its amendment, provided that an officer who was holding or had held an office not less in rank than Principal Secretary to the government could be appointed as the SEC. Post-amendment, the eligibility criteria has been modified, and only a former Judge of the High Court will now be eligible for appointment as the SEC. The newly framed Rules also provide that the SEC will hold the office for a term of three years and will be entitled to be considered for re-appointment for another three years. However, more importantly, the Rules also state that the incumbent SEC shall “cease to hold office” with effect from the date of promulgation of the Ordinance. Hence, in pursuance of the Ordinance, the incumbent SEC, N Ramesh Kumar, a retired bureaucrat, who was appointed on 30th January 2016 for a term of five years, was terminated and V Kanaraj, a former Judge of the Madras High Court, was appointed in his place. At present, the Ordinance is under challenge before the Andhra Pradesh High Court.

Section 200 of the Act is almost in pari materia with Article 243K of the Constitution. Article 243K deals with elections to the Panchayats in a state:

243K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) … (Emphasis supplied)

Article 243K(2) states that subject to any law made by the state legislature, the Governor has the power to determine the conditions of service and tenure of office of the SEC. This power, however, is limited by a proviso. A bare reading of the proviso which is divided into two parts by the word “and” (emphasized above), suggests that the Governor is precluded from determining the conditions of service and tenure of office of the SEC in a manner that would either (i) lead to the SEC being “removed” without following the same procedure, as is required to be followed for the removal of a High Court Judge or (ii) vary the “conditions of service” after the SEC’s appointment, to his disadvantage. Therefore, when determining the conditions of service and tenure of office of the SEC, a breach of any of the above two circumstances would violate Article 243K(2).

In this post, I will argue that the Ordinance and the amendments carried out thereunder, which led to the abrupt termination of the former SEC, are unconstitutional, as they violate both the conditions specified under the proviso.

The Governor has removed the SEC in violation of the constitutional mandate

The state government has contended that the termination in question – caused by the curtailment of the former SEC’s tenure – amounts to his ‘cessation’ from service, and not his ‘removal’. Hence, according to the government, the process of removal of a High Court Judge which is prescribed under Article 217(1) proviso (b) read with Article 124(4), was not required to be adhered to in the present case. Further, Section 16 of the General Clauses Act, 1897 (“GCA”) states that the power to appoint a person also includes the power to dismiss him. This also raises the question of whether the Governor can curtail the SEC’s tenure since he has the power to appoint him.

In my opinion, not only does the Governor not have the power to curtail the SEC’s tenure but for the reasons stated below, even the exercise of such power effectively amounts to the SEC’s ‘removal’ and not his ‘cessation’ from office.

First, once appointed, a High Court Judge is entitled to hold office until he attains the retirement age of sixty-two years, subject to earlier removal. He can be removed only by an order by the President, based on a motion passed by both Houses of Parliament and two-thirds of the members present and voting on the grounds of “proved misbehaviour or incapacity”. This intricate removal process coupled with the fixed age of retirement guarantee security of tenure to the Judge, which enables him to discharge his duties free from external pressures, and thus, helps safeguard the independence of the judiciary. By providing that “[T]he State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court”, the proviso seeks to extend the security of tenure to the SEC in the same way that it protects a High Court Judge, albeit only during the fixed-term of his appointment. This allows the SEC to act independently and without the fear of dismissal for taking decisions that may not find favour with the executive, and thus, enable him to fulfill his mandate under Article 243K(1) of conducting elections in a free and fair manner. The curtailment of the SEC’s tenure, on the other hand, defeats the object and purpose of the proviso by adversely affecting his security of tenure. If such discretion is available with the Governor, it could easily be used by the executive to either browbeat the SEC to toe its line or, like in the present case, to unilaterally terminate his appointment. In either scenario, the threat to the SEC’s security of tenure would restrain him from discharging his duty effectively and independently, which is precisely the situation the prescribed removal process seeks to overcome. It is, therefore, submitted that the words “removed from his office” occurring in the first part of the proviso, contemplate termination of the SEC not just by removal by impeachment by the Parliament, but, they also apply to his termination on account of curtailment of his tenure. Since the manner of the SEC’s removal in the present case comes under the latter category, it needed to comply with the procedure for removal specified in the first part of the proviso to Article 243K(2).

Second, a perusal of the events leading up to the SEC’s termination indicates that his termination was not a part of electoral reforms, as has been averred by the government. In March 2020, the SEC postponed the elections to the village panchayats by six weeks due to the prevailing situation resulting from the outbreak of COVID-19, and ordered the transfer of several government officials, but directed that the Model Code of Conduct (“MCC”) would remain in place. Following this, the Chief Minister of the state openly criticized the SEC, and the government challenged his decision before the Supreme Court. The Supreme Court upheld the SEC’s decision to postpone the elections but directed that the MCC be lifted. It is in this backdrop that the SEC was terminated less than a month after the above order of the Supreme Court. It appears prima facie that the government wanted to punish the SEC for what it thought was misconduct on his part. But the first part of the proviso to Article 243K(2) indicates that an act of alleged “misbehaviour” has to be “proved” before the SEC’s removal. This ensures a deeper probe into any allegation against the SEC and under a procedure that is devised in consonance with the principles of natural justice. Therefore, notwithstanding that the Ordinance and the Rules are innocuously worded, the fact that the SEC’s termination has sought to be founded on the ground of misconduct, the requirements of the proviso had to be complied with. Accordingly, in the present case, the Court is bound to go behind the Ordinance to ascertain its true character. In Ram Ekbal Sharma v. State of Bihar, the Supreme Court dealt with a challenge by a government servant against an order of compulsory retirement issued against him. While quashing the impugned order, the Court held that the power of the State to terminate a civil servant under Article 311, which deals with the dismissal, removal, and reduction in the rank of civil servants, is not absolute and the Court can lift the veil to determine whether or not the order is punitive:

[E]ven though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. (Emphasis supplied)

 

Being a constitutional functionary, the termination of the SEC must be subjected to an even higher threshold of judicial scrutiny. In the present case, retaliatory action against the SEC for his ‘misconduct’ was camouflaged as an order of cessation. The Ordinance is, therefore, liable to be quashed.

Curtailment of the SEC’s tenure has resulted in varying the conditions of service to his disadvantage

The second argument of the government is that since the terms “conditions of service” and “tenure of office” have been mentioned separately under Article 243K(2), and thereafter, only the term “conditions of service” has been mentioned in the second part of the proviso, this indicates that both the terms have separate connotations and the SEC’s tenure is not a condition of his service. Consequently, according to the government, the curtailment of the SEC’s tenure does not amount to varying the conditions of his service on which he was appointed, to his disadvantage. Moreover, Section 21 of the GCA states that the power to issue a rule also includes the power to amend or vary the same. Could it then be argued that the Governor who has the power to determine the conditions of service and tenure of office of the SEC, also has the power to amend the same after his appointment? In my opinion, such interpretation is untenable as it would lead to inconsistency and create an illogical situation. If the SEC’s tenure is not a condition of his service, the corollary would be that the Governor has the power to vary his tenure to his disadvantage, as the second part of the proviso states that “[T]he conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment”. However, this interpretation would be contradictory to and render the first part of the proviso meaningless, which, as discussed above, precludes the Governor from curtailing the SEC’s tenure after his appointment. Thus, the proviso has to be interpreted harmoniously along with the main provision so as to give effect to both the parts thereof and avoid this anomalous situation.

Concluding remarks

To summarize, once appointed, the SEC holds office during good behaviour, and not during the pleasure of the Governor. Unlike a government servant, there is no employer and employee relationship between the SEC and the Governor. The Ordinance causes the premature termination of the SEC by curtailing his tenure, which tends to put him on the same footing as a government servant. This, however, is entirely contrary to the intent of Article 243K(2), which confers the SEC with an irremovability protection in order to preserve his independence. Hence, the Ordinance is ultra vires the Constitution.


  • Note: The texts of the Ordinance and the amendment to Section 200 of the Act were not available on the Andhra Pradesh e-gazette at the time of publishing of this post.

Guest Post: Prisoners’ Right to Vote in India

[This is a guest post by Jyotishka Guha.]


Introduction

In a recent judgment, the Delhi High Court upheld the validity of Section 62(5) of Representation of People’s Act, 1951, which disqualifies prisoners from voting in an election. Since the Court had not much scope to deal with the issue, as the Supreme Court had already decided the validity of the section in Anukul Chandra Pradhan vs Union of India, in this post I would like to point out some of the loopholes in the arguments against prisoners’ right to franchise.

The 1997 Judgment

Section 62(5) of the Act prohibits any person, who is in prison or in the lawful custody of the police, to vote (except the people who are in preventive detention). The said provision was challenged on the ground that it violates Article 14 of the Constitution, as it makes an arbitrary distinction between people who are in prison and people who are out on bail or parole. Further, the restriction applies to a person who is in the lawful custody of the police. This includes a person detained during investigation before a chargesheet is filed against him, and also under-trial prisoners, due to their inability to furnish bail. The Court rejected these contentions by primarily citing three reasons: i) lack of resources and police forces; ii) a person who is in prison due to his ‘own’ conduct cannot claim equal freedom of movement and expression guaranteed under Article 19 of the Constitution and, (iii) that it serves the larger purpose of preventing ‘criminalization of politics’.

While the first ground is purely an administrative concern, the other two are legal. The argument that prisoners cannot claim equal freedom of movement and expression guaranteed under Article 19 does not stand, because the Apex Court itself in State of Maharashtra v Prabhakar Pandurang held that a prisoner retained the freedom of expression, when it allowed an imprisoned person to publish a book that he had written while he was in prison. The Court rejected the Government’s contention that a prisoner could only enjoy those privileges which were conferred to him by the Order, and held that since ‘personal liberty’ was guaranteed under Article 19 and 21 of the Constitution, any law depriving personal liberty could only be valid if it did not infringe both Article 19 and 21.

While the right to vote is not a fundamental right, the Court in PUCL vs Union of India has nonetheless made a distinction between the right to vote and freedom of voting. The Court has held that although the right to vote is only a constitutional right (Article 326), the freedom of voting falls under the ambit of ‘expression’ under Article 19(1)(a) of the Constitution. This means that while a statute can decide the modalities of voting, the act of voting is guaranteed under Article 19(1)(a) of the Constitution. However, even a statute deciding the modalities of voting need to pass the non-arbitrariness test enshrined under Article 14 of the Constitution.

The Court also held that there was an intelligible differentia between people who are in prison and who are outside, and that the prohibition serves the larger purpose of preventing ‘criminalization of politics’ and maintains electoral probity. The Court, however, failed to establish why people who are in prison are a threat to electoral probity, while people who are out in bail, are not. Given the fact that getting bail often requires a substantial amount of money, the classification does not always take into account the gravity of the offence. Further, the Court held that preventive detention is a separate class, as there has been no conviction; however, the Court failed to take into account the case of under-trial prisoners, who have not also been convicted, but are nonetheless in prison. Finally, in the last paragraph, the Court contradicted itself where it held that since the right to vote is a statutory right, a challenge to any provisions of the Statute could not be made on the touchstone of fundamental rights (Para 12). Had this been the case, then the Court should not have discussed fundamental rights in the first place!

Foreign Judgments

The NICRO CASE

South Africa acknowledges Universal Adult Franchise under Section 1 of its Constitution. Despite this, the Parliament brought an amendment that debarred prisoners, serving imprisonment without the option of fine, from voting. When it was challenged, the government’s argument was primarily based upon two grounds: namely, lack of resources to ensure prisoner’s right to vote, and that because prisoners had been deprived of their liberty, it was fair to deny them franchise rights as well. The first argument was rejected by the Court on the ground that since arrangements had been made for prisoners who were serving a sentence with a fine, this meant that logistics were available to ensure their franchise rights. To nullify the second argument, the Court used the ‘proportionality principle’ enshrined in Section 36 of the Constitution. This principle tries to balance between interests of those whose rights have been limited and interests of State, by asking whether less restrictive means could have been used to achieve the same purpose. The Court concluded that a blanket ban on prisoner’s franchise rights could not be justified merely on the ground of a policy decision of addressing the alarming crime rate, since the government had failed to furnish sufficient data on how restricting franchise rights would reduce the rate of crime.

The HIRST CASE

Just like India, UK law puts a blanket ban on prisoner’s voting rights. When this was challenged as being violative of Article 3 of Protocol No 1 of European Convention, the ECHR held that although the right to vote is not an absolute right, a blanket ban on prisoner’s franchise rights, irrespective of the gravity of the crime and duration of the sentence, was not justified since it breached the ‘margin of appreciation’. It is interesting to note that, here, the government argued that, in effect, only 48000 prisoners would be deprived of voting, since it would not include people detained on remand or those who had failed to pay the fine. However, the Court opined that 48000 was still a significant number, and there was no evidence that Parliament had ever sought to weigh the competing interests of the prisoner’s right to vote as opposed to the State’s interest. Unfortunately, the UK has still not acknowledged this despite another ECHR Judgment in 2010, which asked the Parliament to bring a law to address the issue. Although a Bill is pending, which gives franchise rights to prisoners serving one year of sentence or less, it has still not seen the light of the day.

In both cases, the arguments made against the prisoner’s franchise rights were similar to that of India. In both cases, however blanket bans were rejected by the courts.

Conclusion

Depriving prisoners of voting rights come from the archaic concept of ‘civic death,’ which advocates that since prisoners have broken the ‘social contract’, they are not entitled to the rights enjoyed by normal citizens. This may be contrasted with the ‘Universality Principle,’ which argues that some rights are so basic, that every human being ought to be able to enjoy them. The right to vote has been acknowledged under Article 21 of the UDHR and Article 25 of ICCPR as a human right. But India remains one of the very few countries that retains a blanket ban on prisoner franchise rights, despite being a party to both the Conventions.

 

 

Guest Post: Engineering a Constitutional Crisis in Maharashtra

[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]


To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including “independents.”
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including “independents” supporting the Government from outside.

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.

Guest Post: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”?: A Response to Mihir Naniwadekar

(This is a Guest Post by Goutham Shivashankar.)


This post is a response to Mihir Naniwadekar’s excellent and thought-provoking posts on the Bombay High Court’s decision in Vijay Namdeorao Wadettiwar v State of Maharashtra. Naniwadekar’s posts are available here and here. Naniwadekar argues that the High Court erred in failing to hold the recent induction of Radhakrushna Vikhe Patil (“RVP”) as a Cabinet Minister in Maharashtra’s BJP-led government to be a fraud on the constitution. As I understand it, his analysis is based on certain suspect premises. I hope to set out these shaky premises, and in the process, defend the High Court’s eventual ruling from Naniwadekar’s principal line of attack, i.e., fraud on the constitution.

Naniwadekar’s analysis stands on a misreading of the text of Article 164 of the Constitution: most critically, he fails to properly distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”, both of which find mention in Article 164. This distinction is crucial, especially in bicameral states like Maharashtra, which have Legislatures consisting of a Legislative Assembly and a Legislative Council and where the Council’s membership is not entirely elected. This primary error leads to a secondary suspect assumption. He assumes, arguably incorrectly, that Article 164(4) mandates that a Minister must necessarily be “elected” as a member of the Legislature of the State. The text of Article 164(4) does not seem to prohibit a “nominated” member. But some discussion in the Constituent Assembly debates and previous decisions of the Supreme Court do lend some support to his assumption that Article 164(4) does require a Minister to be an “elected” member of the State Legislature. Finally, his analysis also proceeds on a potentially incorrect reading of the Representation of People Act, 1951 (the “ROPA, 1951”). Naniwadekar assumes that the Petitioner’s contention in the case is correct, i.e., that the ROPA, 1951 prohibits by-polls being conducted to fill in casual vacancies that arise in the fag-end of an Assembly’s term.The ROPA, 1951 however, contains is no such prohibition. At least, I was unable to find any.

The Facts Restated (with one significant correction)

Naniwadekar’s posts capture the facts of the case with precision, except for one significant error. I do not propose to reinvent the wheel, but simply extract his summary. I also indicate in bold the erroneous factual assumption which he makes, and explain its significance. Naniwadekar summarises the facts as follows:

Mr. Radhakrushna Vikhe Patil (“RVP”) was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.

In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.

However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.

RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra).

Naniwadekar’s summation is correct except in stating that the Representation of the People Act, 1951 (the “ROPA”) precluded the possibility of holding a by-poll for RVP’s “Assembly Seat (or any other by-poll).” This is incorrect on two counts.

Firstly, the ROPA, 1951, on a plain reading, does not contain any bar on holding a by-poll in the last six months/one-year of a Legislative Assembly’s term. Secondly, the ROPA, 1951 also certainly does not enact any such bar on by-polls to casual vacancies that may arise in the State’s Legislative Council.

Subject to this significant correction, the Naniwadekar’s account of the facts is entirely apposite. I will back my correction up in my analysis below. I will also indicate how this correction is crucial to the proper analysis of the case at hand.

Summarizing Naniwadekar’s Argument for Constitutional Fraud

Naniwadekar’s line of argument, broadly, appears to be this:

(i) A person appointed as a Minister in a State Government’s Council of Ministers must become a member of the State’s Legislative Assembly within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.

(ii) To appoint a person as Minister, where there exists no possibility at all that she could comply with the requirement in (i) above, would be constitutional fraud, since it would undermine ministerial responsibility.

(iii) There was “no possibility at all” of RVP being elected as a member of Maharashtra’s Legislative Assembly within 6 months of his induction as a Minister. This was because the Legislative Assembly was in the last six-months of its term and the ROPA, 1951 precluded by-polls to casual vacancies at this stage.

(iv) An implicit assumption in (i) – (iii) above, is that Article 164(4) requires that an inducted Minister must be “elected” as a member of the Legislature (if he is not already one at the time of his appointment as a Minister) within the prescribed six-month period. The mode of entry into the Legislature must be election, and not nomination.

A couple of extracts from Naniwadekar’s posts would be appropriate in culling out the above arguments. For instance, when distinguishing the Supreme Court’s judgment in Manoj Narula in his first post, Naniwadekar, presumably alluding to Article 164(4) of the Constitution, asserts that:

The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with… …But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.” (emphasis supplied)

In his second post, Naniwadekar states:

In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister.(emphasis supplied)

As I understand it, each of these premises are erroneous. But before I set out why, it is necessary for me to extract the relevant legal provisions.

The Relevant Provision of Law

Constitutional Provisions

Article 164 (2) and (4) of the Constitution are relevant. They state as follows:

164. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

Additionally, Articles 168 and 171 are important. Article 168 provides that for Maharashtra, the Legislature shall consist of the Governor, and two Houses, i.e., Legislative Assembly and the Legislative Council. Article 171 prescribes the composition of the Legislative Council. Articles 171(3) (a)-(d) envisage that a total 5/6th of the Council’s membership shall be filled through elections by different electorates. Article 171(3)(e) envisages that the remaining 1/6th of the Council’s membership is to be “nominated” by the Governor. Lastly, Article 171(2) provides that: “the Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions of law made by Parliament by law.

Provisions of the ROPA, 1951

Sections 15, 150- 151A of the ROPA, 1951 are relevant. Section 15 states as follows:

Notification for general election to a State Legislative Assembly. —(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, the Governor or Administrator, as the case may be shall by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1), of article 172 or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.

Section 150 of the ROPA provides for by-polls to casual vacancies in State Legislative Assemblies. Section 151 provides for by-polls to casual vacancies in State Legislative Councils. Section 151A, which allegedly contains the “bar” precluding by-polls in the fag-end of a Legislative Assembly’s term actually states as follows:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if— (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.”

 

Section 151A is the only provision of the ROPA, 1951 cited by the Petitioner before the High Court to substantiate his contention regarding a bar.

Four points are crucial to note here.

Firstly, Article 164(2) of the Constitution provides for “collective responsibility” of the Council of Ministers to the “Legislative Assembly”. In contrast, Article 164(4) requires that a Minister shall be a member of the “Legislature” of the State. The two terms are not synonymous. In a bicameral state, the “Legislature” of the State will include the Legislative Council as well.

Secondly, membership of the State Legislature can be achieved in at least 4 ways. One can become: (i) a Governor; (ii) a member of the Legislative Assembly chosen by “direct elections from the territorial constituencies of the State (Art. 170(1)); (iii) an “elected” member of the Legislative Council (Arts 171 (3) (a)-(d)); (iv) a “nominated” Member of the Legislative Council (Arts 171 (3)(e)). Textually, Article 164(4) does not seem to preclude a Minister securing membership of the State Legislature through any of these modes, though membership by becoming a Governor can safely be ruled out on grounds of the absurdity of a person being both Governor and Minister.

Thirdly, a Legislative Assembly has a fixed term subject to dissolution. In contrast, the Legislative Council of a State is a permanent body that is not subject to dissolution, and usually subject to biennial elections. To speak of the last 6-months of the term of the Legislative Council is erroneous.

Fourthly, neither Section 15 nor Section 151A bar the conduct of by-polls to casual vacancies arising in the fag-end of the Legislative Assembly’s term. Section 15(2) proviso merely prohibits the Election Commission from notifying the general elections too early, i.e, even before six month prior to the expiry of the Assembly’s term. The main portion of Section 151A mandates a time limit of six-months to hold by-polls in relation to casual vacancies that may arise either in the Legislative Assembly or the Legislative Council. The proviso to the section only carves out an exception to the six-month time limit in the event that the remainder of the “term of a member” in relation to a vacancy is less than one year. It does not preclude a by-poll at that stage, it merely exempts the Election Commission from adhering to the six-month limit.

The Errors in Naniwadekar’s Analysis

From my analysis of the provisions of law above, the following points emerge in relation to the Naniwadekar’s argument.

Firstly, proposition (i) of his argument as stated above is incorrect. There is no constitutional requirement that a minister must become a “member of the Assembly” within six-months in order to continue as a Minister. Article 164(4) says nothing of the kind. It states that a minister must become a “member of the Legislature”. Naniwadekar fails to distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”. Both terms appear in Article 164 of the Constitution, the former in Article 164(4) and the latter in Article 164(2). He has not considered that Maharashtra has a Legislative Council that is a part of the State’s Legislature. It is a permanent House, with biennial elections, one-third of whose members retire approximately every two years. There always existed the possibility of by-polls to fill up casual vacancies due to resignation or death of other Council members that may arise in the Legislative Council within 6-months of RVP’s appointment as a Cabinet Minister.

If I am correct, proposition (i) of Naniwadekar’s argument must be corrected to state: “A person appointed as a minister in a State Government’s cabinet must become a member of the State’s Legislature within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.”

If proposition (i) is restated as above, proposition (ii) would still be valid. If this restatement is not made, however, proposition (ii) would manifestly become incorrect. Put simply, it would be wrong to assert that appointing a person as Minister amounts to constitutional fraud merely because he is incapable of being elected to the Legislative Assembly within six-months of his appointment. It may, however, be correct to argue that it would amount to constitutional fraud to appoint a person as Minister if he in incapable of becoming a member of the State Legislature.

Proposition (iii) is incorrect because, as explained above, the ROPA contains no bar on conduct of by-polls in the last six-months of a Legislative Assembly’s term.

Proposition (iv) is unsubstantiated by the text of Article 164(4). The plain text does not require “election” to the State Legislature to continue holding the post of a Minister. Even “nomination” to the Legislative Council would suffice as per the plain text. However, the Constituent Assembly’s debates and many decisions of the Supreme Court do seem to proceed on the assumption that a Minister would be an elected member of the Legislature.

The upshot is this. The Bombay High Court was correct in rejecting an argument that RVP’s appointment was a fraud on the constitution. To that limited extent, Naniwadekar’s analysis is suspect. Otherwise, his analysis is brilliant. If you haven’t read his posts, please do so immediately.

 

Civil Rights at the Bar of the High Courts: The Madras High Court on Gag Orders and the Kerala High Court on Voting Rights

Two High Court judgments delivered this month have restated certain important constitutional principles.

The Madras High Court and Injunctions

The first is the judgment of the Madras High Court in Ms Menaka v Arappor Iyakkam, delivered on 3 June by R. Subramanian J. In this case, a politician and certain government contractors [“the Applicants”] had filed a defamation suit against the Respondents. The Respondents had published certain claims regarding corruption in the award of government contracts involving the applicants. The applicants also filed for a broad, pre-trial injunction/gag order, asking the Court to “grant an order of ad-interim injunction, restraining the respondents/defendants their men and agents from in any manner, holding any press meet, releasing or distributing any statement to the Print and Electronic Media or to any one against the applicant/plaintiff and its business imputing the character or insinuating the reputation or linking the name of the applicant/plaintiff with any person(s) or defaming the name of the applicant/plaintiff in any manner, pending disposal of the above suit.”

These widely-worded prayers for injunctions are an increasingly common feature of defamation suits, and are granted with frequent regularity. As I argued recently, the purpose of such prayers is to effectively shut down any speech about the applicant by the respondent, until the final disposal of the suit (which could take years). This is because the civil law of defamation comes with certain inbuilt defences (truth, fair comment, etc.). In other words, you can make a defamatory statement (i.e., any statement that lowers the reputation of the plaintiff) without committing defamation (if that statement is true, or a fair comment etc.) However, these broad-ranging prayers, in the way they are framed, effectively take away the option of defences altogether, thus settling the case in favour of the plaintiff before a trial.

In this case, however, the Subramanian J. refused to grant the injunction prayed for. What is remarkable about his judgment is how unremarkable it is: Subramanian J. reached his conclusion not by making grand statements about the freedom of speech, but simply by following the law. As he noted, the common law rule in Bonnard v Perryman was clear: if, in a defamation suit, the defendant pleaded justification (i.e., the defence of truth), then a Court could only grant an injunction if it was prima facie clear that the defendant had no chance of proving the defence at trial. (paragraph 20) Bonnard v Perryman had been followed by the Delhi High Court in Tata Sons v Greenpeace (paragraph 26), and continued to be good law in England (paragraphs 24 & 25) as well as in Canada (paragraph 29). Consequently, Subramanian J. held that:

An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. (paragraph 30)

On the facts before him, Subramanian J. found himself prima facie satisfied that the Respondents were not acting out of malice, and that the veracity of their statements would have to be tested at a trial (i.e., they could not be declared false out of hand) (paragraphs 36 – 40). That was enough for him to decline – on the basis of existing law – the prayers for injunction.

Subramanian J. also made it clear that the case presented no privacy claims, as the comments concerned a politician’s official functions (paragraph 24). He, therefore, nipped in the bud what has become (of late) a disturbing tendency to invoke the Supreme Court’s privacy judgment in Puttaswamy as a sword to curtail other rights, rather than as a shield against State intrusion (paragraphs 3133) (a good example of this is the Ramdev injunction, which the Madras High Court expressly declined to follow).

The Madras High Court’s judgment joins a slow – but hopefully steady – judicial push back against trigger-happy judicial injunctions in defamation cases – a trend exemplified by the Bombay High Court recently, as well as the Karnataka High Court lifting the gag order in the Tejaswi Surya case.

The Kerala High Court and Voting Rights

The second judgment comes from the Kerala High Court. A. Subair v The Chief Election Commissioner involved the deletion of a voter from the voting rolls, on the basis of a “house to house check.” The State also argued that a draft electoral roll had been published, and objections had been invited from deleted individuals. Rejecting this argument, and reading S. 22 of the Representation of the People Act – which required an opportunity to be heard – the Chaly J. held that “… the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned. Bearing the said aspects in mind, it is clear, no such serious exercise is undertaken by the officer, before removing the name of the petitioner. It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law. (paragraph 10)

The highlighted part is particularly crucial. This is because, in recent years, there have been reports of large-scale voter deletions, caused by the use of faulty software by the EC. In other words, deletions happen through an automated process. This has been challenged in the Hyderabad High Court where the case has been pending for many months now. One of the crucial issues at stake involves the concept of the “right to an explanation”: that is, if I am deprived of a right by an automated decision, taken by a machine, then I have the right to be given an explanation for how that decision has been taken.

One of the major arguments use to dodge that in the case of voter deletions is that the right to vote is merely a statutory right. As I have attempted to explain before, that argument is flawed: voting is a statutory right in the sense that the procedure and modalities of voting are determined by statute, but the act of voting itself is a fundamental freedom protected by Article 19(1)(a) of the Constitution. Therefore, the denial of voting altogether is a constitutional violation, and must be treated as such. Consequently, whether or not the Election Commission uses technology to “clean up voter rolls” (and the constitutional issues with that are another matter), the basic point remains that before a voter’s name is deleted, they must be heard: as the Kerala High Court correctly observed, the process where the name is first deleted, and then the burden is placed upon the voter to come forward and protest, is entirely illegal – no matter how well-publicised the deletions are, and how many “opportunities” are given.

The underlying basis should be obvious: the burden of being able to exercise a fundamental right is not on the citizen, but upon the State, when the latter seeks to deprive her of it. The Kerala High Court judgment is a crucial endorsement of that rather basic constitutional principle; and it is to be hoped that in the ongoing challenges to the EC’s actions before the Hyderabad High Court, that principle will be adhered to.

Financing the General Elections: Electoral Bonds and Disclosure Requirements under the Constitution

The electoral bonds scheme was introduced by the 2017 Finance Act, challenged before the Supreme Court in 2018, and made headlines in 2019 when the court finally began hearing the matter and passed an interim order. Briefly, the scheme allows individuals and companies to purchase “electoral bonds” issued by the State Bank of India and subsequently donate the bonds to a political party. Under the scheme, only a political party registered under the Representation of People’s Act 1951 (RPA) is eligible to receive and encash electoral bonds. Electoral bonds are therefore bespoke campaign finance instruments to allow donors, or ‘contributors’, to contribute to political parties. The bonds are issued in denominations ranging from one thousand rupees up to one crore.

Crucially, through several legislative changes (discussed below), political parties do not have to disclose to voters either the identity of the contributor, or the amount received through electoral bonds. The electoral bonds scheme itself provides that,

the information furnished by the buyer shall be treated [as] confidential by the authorised bank and shall not be disclosed to any authority for any purposes, except when demanded by a competent court or upon registration of criminal case by any law enforcement agency.

One of the grounds on which the scheme has been challenged is that citizens have a right to know the identity of the contributors and the amounts being contributed to each party. In its interim order, the Supreme Court required all political parties to submit to the court (in a sealed cover) the details of money received under the electoral bonds scheme.

On this blog we discussed the concerns raised by the Supreme Court’s interim order (here). In this post I argue that the electoral bonds are part of a more comprehensive legislative agenda which increases the overall volume of campaign contributions and decreases the information voters have about these contributions. I then examine whether the electoral bonds scheme is constitutional in light of the Supreme Court’s jurisprudence on a citizen’s “right to know” under Article 19(1)(a) of the Constitution. Exploring the rationale behind a voter’s “right to know”, I argue that disclosing campaign contributions is necessary because it allows voters to better understand a candidate or party’s position on important issues and evaluate whether a candidate (and eventually, elected official) is “too compliant” with the wishes of their contributors.

Recent changes in campaign finance law

The current government has made several changes to campaign finance laws in the last two years. Firstly, the government removed the cap on corporate donations contained in Section 182 of the Companies Act 2013 under which a company could not contribute more than 7.5% of its net profits for the previous three years. The amendment also removed the requirement that companies disclose the total amount contributed and identity of the political party that the company contributed to. There is now no cap on how much money a company can contribute to a political party. Further, by removing the requirement that the political contributions must come from profits, there is a risk that donors set up shell companies that do not actually conduct any legitimate business but exist solely to funnel money to political parties.

The government also amended the Foreign Contributions Registration Act (FCRA). Under the FCRA as it stood before the amendment, companies that were more than 50% foreign owned were prohibited from donating (or “contributing”) to political parties. The amendments removed this 50% threshold, permitting companies that are 100% foreign owned to contribute to political parties.

Circling back to the electoral bonds scheme, prior to the amendments by the government, political parties were required to report all contributions over twenty thousand rupees (under Section 29C of the RPA) and keep a record of the name and address of all such contributors (under Section 13A of the Income Tax Act). Under the government’s amendments, both these reporting requirements were removed in the case of contributions made through electoral bonds.

Thus, it is important to recognise that electoral bonds are part of a sustained and comprehensive legislative agenda that is likely to see a significant increase in campaign contributions to Indian political parties and a significant decrease of information about these contributions to voters. As I argue below, both these outcomes have consequences on the functioning of democracy under the Constitution.

Some Context on Campaign Finance

Campaign finance is a vast and nuanced area of law and political theory, and the intention here is merely to touch on a few simple points to provide context to the legislative changes introduced by the government.  Firstly, a core tenet of democracy is that citizens collectively choose a representative government. Only a government chosen by the citizens is legitimate. Therefore, the process by which citizens choose their representatives (elections) is of paramount important. If elections do not provide citizens with a free and fair method of selecting a candidate of their choice, then the elected government cannot be said to be chosen by the people, and would be illegitimate.

Elections in all countries cost money. However, methods of financing elections vary greatly, from systems of publicly funded elections, to systems of unlimited private contributions. India is somewhere in the middle, private contributions are permitted, but spending by political candidates is capped. In a system where public money is used to finance elections, voters have no interest in knowing how candidates are financed, because all candidates are using public money. However, as we move towards private contributions, and unrestricted private contributions, things get a bit trickier. Where private contributions are permitted, who is funding a candidate becomes an essential part of the candidate’s platform, because contributors will donate to candidates who support their ideas, and candidates may even modify their ideas to secure funding. Thus, a candidate’s stance on issues and who is funding them becomes intricately linked. Thus, in an electoral system where candidates are privately funded (and as I argue in detail below) voters do have an interest in knowing who is funding a candidate.

Corruption

Lastly, it is important to separate campaign contributions from corruption. Corruption, simply, is when a candidate (as a potential elected official) uses their position to enrich themselves personally. Campaign contributions do not enrich the candidates personally, but rather are used by candidates to acquire more votes. (It is possible that some candidates use contributions to enrich themselves, but that is a separate debate.)

The real problem that that campaign contributions can raise is a “quid-pro-quo” deal. Where a candidate takes money from a contributor, and once elected, votes in favour of laws that benefit the contributor. This concern is articulated by the U.S. Supreme Court in Nixon v Shrink Missouri Government PAC, where the court noted that the concern raised by political contributions is a concern “not confined to bribery of public officials, but extending to the broader threat from politicians [being] too compliant with the wishes of large contributors.” But when is a politician “too compliant”? Is it merely when she votes against the interests of the majority of her constituents? Arguably, in a democracy, it is desirable that voters signal to candidates what their preferences are, both through votes, as well as political contributions. Subsequently, when an elected legislator votes in line with these preferences, they are merely being responsive to the needs of their constituents. Say for example, a rich religious minority that has been historically persecuted contributes large amounts to a candidate, who subsequently votes for a law which prevents future persecution of that minority, can we say that such a candidate is “too compliant”? It is highly likely that such a candidate would have voted the same way irrespective of the contributions. As I argue below, disclosures help with this as well.

One problem that increased contributions can result in is the translation of economic inequality to political inequality. If elected officials respond to issues that have received the greatest support from their constituents in the form of the maximum contributions, the legislative agenda may represent the interests of the largest contributors, and not all individuals in their constituency. This may drown out the political demands of economically weaker sections of society. However, this is a risk inherent in all systems that allow private political contributions and is unlikely to disappear until we either have publicly funded elections or the wider economic inequalities in society are tackled.

Article 19 and the “Right to Know

The most recent hearings on electoral bonds centred around whether the Constitution grants voters the “right to know” who contributed to which political parties, and how much they contributed. Article 19(1) of the Constitution grants all citizen’s a right to free speech. The Article also grants citizens the right to receive information from a person who is willing to speak and share their speech. However, typical conceptions of the freedom of speech do not grant a citizen a right to receive information from an unwilling speaker. In other words, the freedom of speech typically provides a negative right against interference from receiving ‘generally available’ information, but not a positive right to gather or acquire information.

To take an example, the freedom of speech grants a journalist the right to publish an article about a failed military operation by the government. The freedom of speech also protects a citizen’s right to receive the article from the journalist. If the government were to ban the journalist’s article on its failed military operation, this would violate not just the journalist’s freedom of speech but also the citizen’s right to receive information that the journalist wishes to share. However, the freedom of speech does not typically grant the citizen a right to demand details of the failed military operation from the government itself. This would require a separate positive right to acquire information (e.g. as provided by the Right to Information Act 2005).

However, the Indian Supreme Court has expressly recognised that Article 19(1) of the Constitution confers on citizens a positive right to know information about electoral candidates. The Supreme Court has been fairly categorical about this position, noting in its Union of India v Association of Democratic Reforms  decision (Union v ADR)  that, “There is no reason to that freedom of speech and expression would not cover a right to get material information with regard to a candidate who is contesting elections for a post which is of utmost importance in the country.

One of the key roles of freedom of speech in a democracy is to ensure public discourse so that all voices and ideas are heard at the time of collective decision making. By including a positive right to know about electoral candidates, the court has stated that for the effective functioning of democracy under the Constitution, it is not enough that the voice of all candidates are heard. Rather, what is required is that voters receive a minimum standard of information that allows them to make an informed decision, even if the candidates would otherwise be unwilling to provide this information. This is perhaps best articulated in Romesh Thappar v State of Madras where the Supreme Court noted, “The public interest in freedom of discussion stems from the requirement that members of democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

In later decisions, the Supreme Court has been far more explicit about the fact that voters must not merely be provided access to the ideas a candidate wishes to portray, but also other objective information that will ensure that the voter makes an sufficiently informed decision. For example, in Union v ADR the court noted that, “Casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect democracy seriously.” What the court is articulating is that standard to be applied to the functioning of democracy under the Constitution, and the standard is not satisfied merely by ensuring that all candidates can freely speak and disseminate their ideas. It requires, at a bare minimum, that voters be sufficiently apprised of their electoral candidates to the point where they can make an informed decision about which candidate is likely to best represent their interests in government. To ensure this, Article 19(1) grants voters a positive right to acquire information about candidates, even if the candidates are unwilling to provide this information.

In Union v ADR ruled that electoral candidates must disclose their assets, educational qualifications, and their involvement in criminal cases for voters to be make an informed decision. This sets a high threshold for the standard of information a voter must possess before voting, leaving the government hard-pressed to argue that voters do not need to know the identity and amounts of political donations received by candidates and parties. As I argue below, the identity of a candidate’s contributors is crucial in allowing voters to make an informed decision.

Disclosures in a Democracy

Recall that the electoral bonds scheme and the surrounding legislative amendments have two primary consequences, (1) they increase the total volume of political contributions, and (2) make it neigh impossible for voters to discern the identity and volume of donations made to candidates. The most obvious function of disclosures is that where the conduct of a legislator blatantly panders to a political contributor without any public utility, disclosures bring to light such behaviour. As the Supreme Court noted in People’s Union of Civil Liberties v Union of India, “There can be little doubt that exposure to the public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.”

However, beyond this, disclosures allow voters themselves to decide when an elected official is being “too compliant” with the wishes of their contributors. As noted above, it is often difficult to determine when an elected official is “too compliant” with the wishes of their contributors. It is likely that individuals will disagree over when an elected official’s action is “too compliant”. However, when contributions are disclosed, each voter can decide for herself when an official’s behaviour is “too compliant” with the interests of their respective contributors and punish the legislator by not voting for them in the next election. As the U.S. Supreme Court noted when examining the constitutionality of campaign finance disclosures in the landmark decision of Buckley v Valeo (Buckley), disclosures “provide the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” Knowing whether an official is likely to represent, or only represent, the wishes of their political contributors is crucial information for an individual voter in deciding whether the official will represent that individual voter’s interest in government.

Lastly, as noted by Elizaabeth Garrett, campaign contribution disclosures allow voters to understanding where a candidate stands on key issues. For example, a voter may not have the time or expertise to discern whether a candidate is in favour of the coal industry based on a candidate’s manifesto or draft legislation. However, when the voter learns that the candidate receives most of her campaign contributions from the coal industry, the voter may understand that the candidate is in favour of the coal industry. This is because the interest groups closest to the issue (the coal industry) would only have contributed to the candidate’s campaign because they believe that the candidate will support legislation beneficial to the coal industry. Because contributing to a campaign is “an observable and costly effort on the part of the contributor”, knowing who contributed to a campaign allow voters to discern a candidate’s likely position on issues. (Garrett also cites empirical studies where voters informed of whom contributed to a candidate were able to vote on-par with candidates who had actively researched candidates – her paper on disclosures and voter competence can be found here.)

Recall that the Supreme Court has already stated that for voters to effectively exercise their role as voters under the Constitution, they must be provided with certain basic information. A key question in case of electoral bonds scheme is whether the identity of the contributor and the quantum of the contributions received by the candidates is part of this essential information a voter should receive to be sufficiently informed. By denying voters this information, the electoral bonds scheme makes it impossible for voters to understand when their elected politicians are acting in favour of large political contributors – even the politicians may be blatantly doing so. Further, electoral bonds allow politicians to hide their position on certain issues by receiving funding from interest groups anonymously. A voter might be inclined to vote for a candidate based on their publicly available information such as a candidate’s speeches or track record. However, that same voter may hesitate if they discovered that the candidate received large amounts from interest groups promoting religious persecution, or tax cuts for large business.

The Government’s Arguments

In defending the electoral bonds scheme, the government has argued that electoral bonds reduce the amount of ‘black’ (i.e. illicitly obtained) money in elections, as contributions are routed through the State Bank of India which performs ‘Know-Your-Customer’ checks on contributors. This does not eliminate the risk that a contributor will merely funnel ‘black’ money through a legitimate or ‘clean’ company or individual, especially as neither companies nor political parties are required to keep a record of large donors any more. In short, the electoral bonds scheme does nothing to ensure that the origin of the money contributed is legitimate.

Another argument that may be used to defend the electoral bonds scheme is one of contributor privacy. As discussed earlier on this blog (here), individuals have a right to the privacy in their associations, and this would include a contributor seeking to donate to a candidate. Take the example of a candidate who speaks out in favour of a religious minority. If the state were to publish the names of all the people who contributed to this outspoken candidate, these contributors might be dissuaded from contributing to the outspoken candidate. Worse, the contributors may face persecution precisely for contributing to the outspoken candidate (something they have a constitutionally protected right to do). Thus, by not protecting the privacy of their  (political) associations, the state would be violating their right to participate in the electoral process.

This is certainly a concern and arguably, where contributors are at risk, a balance must be struck. Garrett notes that in Buckley, as well as in Brown v Socialist Workers, the U.S. Supreme Court exempted campaigns from making disclosures where there existed “specific evidence of hostility, threats, harassment and reprisals.” This is a balanced solution. In the general, where there are no risks to contributors, the voters right to know requires candidates to disclose their contributors and contributions. In specific instances, where a credible risk exists that compelling disclosures will dissuade or put at risk contributors, their privacy must be maintained. Electoral bonds however, exempt disclosures in all situations. Thus, unless the government is able to reverse this – generally requiring disclosures, and creating a nuanced system as to when parties can be keep the source of contributions anonymous, the electoral bonds scheme violates the voters right to know.

Conclusion

To provide some context to the scale of the problem, information procured under the Right to Information Act from the State Bank of India noted (here) that over six hundred crores worth of electoral bonds were purchased between March and October of 2018. The Supreme Court’s interim order in the electoral bonds case is troubling. By refusing strike down the electoral bonds scheme and compel parties to disclose to the citizens of the country who is financing them, the court has taken a step back from its previously strong jurisprudence on a voter’s right to know. Striking down these amendments would have sent a strong signal that any amendments to campaign finance laws must respect that democracy under the constitution requires an informed and empowered voter.  As noted above, who is funding a candidate is vital information that allows a voter to understand where a candidate stands on key issues. That the court refused to do this during an ongoing general election, when this information is most relevant to voters, makes the court’s current stance particularly egregious.

Guest Post: Electoral Bonds and the Political Party as a Vehicle of Representation

(This is a Guest Post by Udit Bhatia, in the context of the ongoing electoral bonds case before the Supreme Court).


The case against secret election funding would appear obvious enough that it barely needs drawing out. However, given recent events in the Supreme Court in India, it seems that we can no longer rely on this assumption. This case rests on three premises: (1) The power of the political party in the legislative process (2) The potential impact of private funding on the legislative process and (3) The benefits of transparency in funding.

Political parties elsewhere serve as intermediaries between voters on the grounds and their representatives in parliament. However, representatives retain their autonomy from their party leaders in various ways. They are allowed to break from the party line during legislative votes. In some jurisdictions, party elites have little influence over the re-selection of candidates for elections. This allows legislators to cultivate a strong following among local party members, enabling them to secure nomination to stand for office again through the same party ticket. In doing so, they can cultivate a personal vote that undercuts the power of organised interests acting upon the party machinery. In both respects, the Indian party system allows little autonomy to the legislator vis-a-vis her party. Her ability to cast a dissenting vote is circumscribed through the anti-defection vote. Moreover, party leaders possess a monopoly over the candidate nomination process, and can threaten to de-select any legislator who might question the party line. The party in this context does not act so much as an intermediary between voters and representative. Rather, the party is more adequately characterised as the vehicle of representation.

Having established parties’ pivotal role in the legislative process, let me now turn to where funding fits into the picture. Funding can affect the legislative process in at least two ways. First, it can lead to straightforward quid pro quo. As several commentators have argued, it can lead a party to formulate policies conducive to the interests of its funders. Second, it can also bias policy-makers to the interests of funders even when there exists no straightforward quid pro quo. Policy-making is governed by the tacit social and economic worldview of decision-makers. Even when policy-makers act in their considered view of the public interest, their perspectives can be skewed by latent biases—biases that are a product of the people that have greatest access to, to organisations that they interact most with, to individuals who are best placed to affect their political prospects. Much of the debate over campaign finance in India has focused on straightforward corruption. But we must not lose track of how non-transparent funding affects political actors even if we attribute less morally dubious intentions to both, funders, and those who benefit from secret funding. The latent biases, in turn, can affect the content of policies in various ways. First, it can skew the agenda: decision-makers can become inclined to keep things off the political agenda if they believe this might put off their funders. Second, it can affect how issues on the political agenda are decided. Wealth has implications for political ideology—research elsewhere has shown that large donors are associated with more extreme views than ordinary citizens; they are also more prone to conservative views on distributive justice than the regular voter.

The arguments outlined here give us a strong case for caps on money that parties can receive from private sources. Perhaps their implications are even stronger in that they give us a strong case for eliminating private money from the political process altogether, and turning instead to a model of public financing of parties. However, as long as unlimited private money is there to stay, transparency offers a next-best solution. Transparency can mitigate the problematic impact of secret funding in at least two ways. First, it can make beneficiaries of such funds more reflexive about their actions in anticipation of the public’s reactions. Both, straightforward this-for-that as well as more tacit biases, can be better checked merely by virtue of decision-makers’ knowledge that the public is aware of who funds them and how this influences their favoured policies. Second, where decision-makers fail to refrain from quid pro quo or check their funder-friendly biases, transparency allows voters to punish them through the ballot.

Recent events in the Indian Supreme Court have demonstrated an impoverished understanding of the link between voters, party and the legislature on the one hand, and between donors and political parties on the other. Perhaps now the response to campaign finance reform must be a political one rather than a judicial one. And here lies a further irony—any political attempt to overturn this dubious framework will itself be affected significantly by large donors who have vested interests in retaining this framework.