The Meaning and Limits of Democracy under the Constitution: Perspective on NCT of Delhi v Union of India

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Article 239, constitutional interpretation, democracy

On this blog (here) we recently analysed the Supreme Court’s verdict in the NCT of Delhi v Union of India. Now that the dust has settled on the judgement and its immediate outcomes, it is worth considering where the judgement stands in our constitutional jurisprudence, the idea of democracy under the constitution.

The crux of the dispute in NCT of Delhi came down to an interpretation of Article 239AA. The article creates a legislature directly elected from the constituencies of Delhi, led by a council of ministers that are “collectively responsible” to the legislature This council will “aid and advise” the Lieutenant Governor (LG). Article 239AA(4) stipulates that in the event of a disagreement between the council and the LG “on any matter”, the LG can refer the disagreement to the President. As we know, the Supreme Court held that the “aid and advice” of the council of ministers is binding on the LG, whose express approval is not required for every initiative of the Delhi government. The LG can disagree on certain matters (we will discuss this later). In interpreting Article 239AA, the Supreme Court relied on certain “principles” that it used to justify its interpretation, chief amongst these was democracy.

In this post, I seek to examine the principle of democracy espoused by the court. The court’s judgement provides a defence of democracy that stems from the political legitimacy created by every individual having a vote, and thus a say in the running of government. The court uses this foundational principle to outline what it means to be democratic within our constitutional framework. Ultimately, in interpreting when the LG can disagree with the council of ministers, the court also highlights the limits of the political legitimacy that voting creates. In other words, the democratic nature of the constitution requires all citizens to be able to influence government. The views of the citizens form the inputs of the governmental decision-making process, and all views must be heard for the decisions of government to be legitimate. However, sometimes, the needs of the citizens must be balanced with the need for the continued existence of the government itself.

The political legitimacy of democracy

Broadly speaking, the constitution uses two methods to ensure the State does not dominate its citizens: (1) by ensuring government policies treat all citizens with equal respect; and (2) ensuring all views are heard when determining government policies. An example of the former would be a fundamental rights challenge under Article 14, while an example of the latter would be preserving democracy, free speech, and free and fair elections. It is this second limb that the court focuses on in NCT of Delhi judgement.

Without making the theoretical case for democracy, some context of the republican notion of democracy is necessary to appreciate the court’s observations. In a pluralistic society, the spectrum of ideas and needs of the citizenry is immensely wide. However, some amount of convergence or coordination is necessary to decide how society should function. If we acknowledge that all citizens are autonomous moral agents worthy of equal respect, then the decision-making procedure must respect the ideas and needs of all agents equally. Democracy through voting, permits exactly this. In the words of the political philosopher Richard Bellamy, it offers a process that “acknowledges the equal moral right of all citizens to be regarded as autonomous reasoners”. In the NCT of Delhi decision J. Misra espouses exactly this justification for democracy:

“The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others” (⁋50)

Similarly, when outlining the underlying principles of the Constitution, J. Chandrachud notes, “One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise” (⁋9). It is crucial to understand that arriving at decisions consensually does not necessarily mean everybody agrees with the outcome of the decision, rather that everybody acknowledges the inherent legitimacy of the process used to make the decision. What the court is recognising is that the equal respect for all views grants legitimacy to the decisions taken by democratic means. Irrespective of whether you agree with the decision or not, it is the outcome of a process in which you had as much of a say as the next person (we will examine limits of this later).

A second crucial facet of democracy that the court highlights is political accountability, or how reflexive the State is to the needs of the citizens. J. Chandrachud defines accountability as, “the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be.” (⁋35) If the role of democratic voting is to determine the “needs and abilities” of the citizens in a society at any given time, then there must exist a direct link between those who vote and those frame laws. This accountability allows citizens to inform political representatives of their “needs and abilities” and most importantly, reject those representatives who do not frame laws that track the citizens “needs and abilities”. Obvious examples of this are not re-electing a representative, or at an indirect level, a ‘no-confidence motion’ against the government. But as we shall see, the principle of accountability is far more widespread. As J. Chandrachud notes, “The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society.” (⁋11)

The democratic credentials of the council of ministers and the LG

Recall that Article 239AA creates a legislature elected from the territorial constituencies of Delhi, which is led by a council of ministers. By contrast, the LG is appointed by President on the advice of the Central Government. Also recall that the High Court ruled that all initiatives of the Delhi government needed the express approval of the LG. This conclusion of the High Court directly contradicts the view of democracy espoused by the court, as the LG neither represents the “needs and abilities” of the citizens of Delhi, nor is he accountable to these citizens. However, the LG is the appointee of a body that is answerable to the people, the central government. If the power exercised by every appointed official was considered unconstitutional on the ground that they were not elected or directly answerable to the people, the government would come to a halt. The court’s final holding is therefore not that the LG is undemocratic, rather than the council of ministers have stronger democratic credentials which cause power to vest in them.

The court argues that no power under the Constitution is conferred unless it is ultimately accountable to the people. How true this is, given the recent antics by governors is a debate for another day, but the court states,

“The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul.”

In other words, where constitution vests power in two posts, there exists a presumption in favour of the power ultimately vesting in and being exercised by individuals or offices directly responsible to the citizens. This presumption is based on two parliamentary doctrines that are based on the twin ideas of all voices being heard and political accountability. These are the doctrines of “aid and advice” and “collective” responsibility.

Aid and Advice

The first constitutional doctrine discussed by the court is that of “aid and advice”. The constitution stipulates that the President, Governor, and at the level of the Union Territory, the LG, shall act on the “aid and advice” of their respective council of ministers. The question in NCT of Delhi was whether the “aid and advice” of the Delhi council of ministers was binding on the LG. A detailed discussion on this doctrine can be found in an earlier post on the High Court judgement (here). However, in the context of our current discussion on democracy it is important to understand the role the doctrine plays in a parliamentary democracy.

J. Chandrachud notes, “The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible.” (⁋43). To ensure that the unelected official in whom the Constitution appears to vest power (e.g. the President, or the LG) acts in accordance with the “needs and abilities” of the citizens they govern, this unelected official is bound to act in accordance the “aid and advice” of elected individuals. The legitimacy of the “aid and advice” of these elected officials comes from the fact that all citizens had an equal chance to choose these elected officials based on the interests the officials represented. (This raises the question, why have an LG at all? Which I address in the last section of the post.)

Collective Responsibility

Collective responsibility means two things: (1) that every minister in government is responsible for her ministry; and (2) all ministers in parliament are collectively responsible for the policies of the government as a whole (the government here is not the entire legislature, but rather the ruling party or coalition). Thus, each minister is vicariously liable for the actions of all the other ministers in government. The reason why parliamentary democracy requires the principle of collective responsibility is best articulated by J. Chandrachud when he notes, “Collective responsibility governs the democratic process, as it makes a government liable for every act it does.” (⁋37) It makes the government, “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support” (⁋33).

By making the entire government responsible for the act of each minister, collective responsibility greatly enhances the liability of government. A single wayward act of a minister can potentially threaten a government’s rule, prompting a no-confidence motion. This results in both intra-governmental accountability, and accountability to the direct representatives of the citizens. As J. Chandrachud concludes, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” (⁋50).  Similarly, J. Mishra states, “the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.” (⁋267)

This highlights the second aspect of democracy discussed above, that of political accountability. It is not sufficient that an office of power is vicariously answerable to the people. Democracy demands a direct nexus between those in power and the citizen’s whose needs and values they represent. The Central Government that appoints the LG represents the needs of the entire country, of which Delhi is a minute fraction. If the constitution demands democratic government for Delhi, it necessarily requires a government that is directly accountable to the citizens of Delhi. The council of ministers possess this accountability, and the LG does not.

The limits of democracy

This post has so far focussed on the ­legitimacy derived from the inputs to the democratic decision-making process. Democracy ensures that all citizens can voice their views equally prior to taking any decision that governs all citizens. However, as has been noted before on this blog (here) we also care about the outcomes of the democratic decision-making process. The discussion for whether democracy needs counter-majoritarian restrains is beyond the scope of this post. However, the NCT of Delhi judgement is notable in delineating the limits of political legitimacy within the constitutional framework.

This conflict is best highlighted by J. Chandrachud when he notes,

“The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.” (⁋55)

The conflict touched upon by the court is not merely about the distribution of powers between the elected government of Delhi and the Central Government. It is highlighting that for all the political legitimacy that democratic inputs generate, there exist certain areas of debate where the democratic process cannot be allowed to reign supreme. A common example of this is the denial of referendums and even popular government to areas that threaten to separate from the union. The court is alluding to the fact that the entire constitutional scheme is situated in a State-centric view of the world, and where the idea of democracy may be used to question the existence of the state itself, a delicate balance must be struck. J. Chandrachud articulately captures this tension when he notes, “Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.” (⁋55).  Despite Article 239AA granting a democratically elected government to Delhi, Delhi is still of crucial importance to India as a State, practically and symbolically. Thus, there are limits to the legitimacy generated by granting each citizen of Delhi a vote.

Conclusion

Earlier we noted that ensuring the voice of all citizens influences the government’s decisions, and the government is accountable to this influence, is a crucial method of restraining governmental power. Thus, the decision in NCT of Delhi should be considered on par with any landmark fundamental rights case in terms of securing freedom. By highlighting democracy as an underlying principle of the constitution and utilising it to interpret a provision that enabled representative governance, the court has restrained the ability of the government (in this case the Central Government) to disregard the “needs and abilities” of the people. How the principles of the equality that voting is founded on and accountability that parliamentary processes create will influence future decisions of the court will be interesting to see. For example, would the anti-defection law survive a basic structure challenge based on the principles articulated here? More realistically, one hopes that in future cases of electoral reforms/restrictions, campaign finance and parliamentary affairs, the court does not forget these principles.

ICLP Book Discusion – Ornit Shani’s “How India Became Democratic”: Round-Up

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book discussion, democracy, round-table

Here is a Round-Up of the essays that form part of our book discussion on Ornit Shani’s How India Became Democratic:

1. Laying the Foundations, by Suhrith Parthasarathy
2. Constituting the People, by Professor Anupama Roy
3. The Transformative Constitution, by Gautam Bhatia
4. The Author Responds, by Ornit Shani

With gratitude to everyone who participated.

ICLP Book Discussion – Ornit Shani’s “How India Became Democratic” – IV: The Author’s Responses

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book discussion, democracy, round-table

(In this concluding part of our Blog Round-Table on Ornit Shani’s How India Became Democratic, the author responds to the preceding three essays.)

—

I am grateful to Gautam Bhatia for initiating this round table discussion on How India Became Democratic. I am honoured that The Indian Constitutional Law and Philosophy Blog, which forms a valuable source for understanding developments in Indian constitutional and legal affairs is hosting this discussion. I am thankful to Suhrith Parthasarathy, Professor Anupama Roy and Gautam Bhatia for their thorough engagement with the book, and so soon after it was published.

Response to Suhrith Parthasarathy

Parthasarathy presents superbly the main themes and arguments of the book about how the preparation of electoral rolls on the basis of universal franchise, ahead of the constitution, engendered struggles for citizenship, driven from below by Indians of modest means; about the tremendous administrative efforts the making of the universal franchise for the largest electorate in democratic history entailed, and the rewriting of the bureaucratic imagination it necessitated; and how the preparation of rolls on the ground informed the process of constitution making. Parthasarathy rightly stresses the commitment to equality and to the right to vote that drove the making of universal adult franchise, not just as a constitutional vision, but also in practice, even before the constitution was finalised and came into force.

Parthasarathy focuses on a case where the government of Travancore refused to register on the electoral roll Tamilians who resided in the state but were not Travancore naturalised subjects of the state. In redressing the grievance of these Tamilians against the government of Travancore, the Joint Secretary of the Constituent Assembly, determined that the state had to register them as voters on the grounds that the state could not legislate or set qualifications that were inconsistent with the provisions of Part III [Fundamental Rights] of the draft constitution. It was inconsistent, in this instance, with the prohibition of discrimination on the basis of a place of birth. So, in this case, a fundamental right provision was inextricably interlinked with and protected by the draft (prospective) constitutional provision (289 B, and finally article 326), which entitled every citizen of India to be registered as a voter at elections to the legislator of the State.

Parthasarathy discusses this case to reflect critically on the Supreme Court’s decisions and reasoning on the status of the right to vote in recent law cases (In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), Rajbala v. State of Haryana, (2015), and in Javed & Others v. State of Haryana & Others). Strikingly, the legal status of the right to vote has been a subject of debate for some time.[1] The court has debated whether the right to vote is a fundamental right, constitutional right, or whether it is a right created by statute. Parthasarathy argues, on the basis of his analysis of the case of the Tamilians from Travancore, and the commitment to equality at large, which drove the making of the universal franchise, that it was ‘clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III’, and that ‘the fundamental rights enshrined in Part III cannot be isolated from the electoral process.’ I would like to make a few observations and some proposals to further strengthen Parthasarathy’s arguments. I will do so from both the perspective of the constitution makers’ intentions and their actions. I am not trained in the law, and therefore the proposals I offer below should be seen as based on my historical investigation and understanding of the actual making of the right to vote under universal franchise.

1. The Constituent Assembly Secretariat undertook the preparation of the draft electoral rolls on the basis of universal franchise, thus implementing the right to vote, from November 1947, to ensure the holding of ‘fresh general elections as early as possible after the new Constitution comes into force’. (p. 91). They did so on the basis of the Constituent Assembly’s decision, while discussing the Interim Report of the Advisory committee on the Subject of Fundamental Rights, to adopt the principle that every adult citizen shall have the right to vote.
2. Realising the idea of one women/man one vote – institutionalising equality for the purpose of voting – was fundamental to the building of a democratic edifice for India. The seriousness of purpose that was demonstrated in implementing this idea during the registration of India’s prospective voters, based on a deep commitment to procedural equality and on a comprehensive inclusive drive – attending, for example, even to the voting rights of vagrants living in huts erected illegally was fully aligned with the fundamental constitutional vision of creating a democracy for India. It is reasonable to argue that implementing the right to vote through the preparation of rolls was the first constitutional promise to be fulfilled by the new republic.
3. During the preparation of the rolls, people grew to conceive of their voting right as a basic guarantee of the constitution. As I show in the book, a number of citizens’ organisations were established in order ‘“To safeguard the right of franchise as guaranteed by the new constitution”’ (p.64). Numerous others fought for a place on the roll to ensure their citizenship and voting rights.
4. Most importantly, perhaps, as a result of the implementation of the right to vote through the preparation of rolls, especially the experience of distinct forms of attempted disenfranchisement on the ground at the state level, constitution makers agreed towards the end of the constitutional debates on a ‘radical change’ (p. 185) in the election provisions. It aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicit expression to the notion of universal franchise on the basis of a single joint electoral roll. The new article stipulated that the election machinery for all elections to parliament and to the legislatures of every state would be vested in a single independent central Election Commission at the centre. The implementation of the right to vote, a perennial and iterative process in a democracy, was removed from of the purview of the states, as it was originally set to be.

In conclusion, constitution makers agreed in April 1947 to the suggestion of the Advisory Committee that the provisions on the right to vote ‘should find a place in some other part of the Constitution’, rather than in the part on Fundamental Rights, as was suggested by both the Fundamental Rights Sub-Committee and the Minorities Sub-Committee. I agree with Parthasarathy that this was a ‘judgment founded on form’. The Advisory Committee unanimously supported the principle of adult franchise, free and fair elections and the management of these elections by a body that is independent of the government of the day. It is true that some of its members doubted whether franchise would ordinarily be part of fundamental rights, and whether dealing with franchise broadly was within the Committee’s jurisdiction. But in June 1949, on the basis of the actual implementation of the right to vote, constitution makers erected a constitutional fortress safeguarding the right to vote within the constitution. The Election Commission is the guarantor, in practice, of the right to vote. As some scholars have argued, the Indian constitution moved beyond the classic separation of powers in its creation of an independent Election Commission.[2] As an autonomous edifice within the structure of the separation of power, should it not be considered part of the constitution’s basic structure? Nehru’s insistence, when some doubts were raised about the universal franchise, that ‘It is one of the basic laws, according to me’[3], is a footnote to these observations, which I hope strengthen Parthasarathy’s arguments.

Response to Anupama Roy

Prof. Roy addresses two broad themes of the book: the making of democratic citizenship and the fashioning of a democratic political imaginary, which I suggest were driven by the preparation of electoral rolls and the contestations for citizenship that emerged in this process. Roy presents my broad arguments about these themes, and raises some important questions about each of them, and about the relations between the two.

Roy asks ‘how the big connection between a bureaucratic process [the preparation of electoral rolls] and democratic imagination could be made’, and asks me to think about the idea that Indians became voters before they were citizens, and about the preparation of rolls as a state building process.

The question of the connection between the bureaucratic process and the democratic imagination is very important. Three main interlinked processes, which together constituted the actual process of implementing electoral democracy, and which produced engagement with shared democratic experiences among civil servants and between people and administrators, played a role in connecting the two. These were the rewriting of the colonial bureaucratic imaginations and habits on franchise and voting rights; the way the universal franchise became a meaningful political order in which Indians would believe and to which they would become committed; and the ongoing numerous interactions between people and administrators about the preparation of the electoral rolls.

The task of the administrators was to operationalise the notion of procedural equality for the purpose of electoral voting. They had to imagine a joint list of all adults in the land – women and men of all castes and classes – each carrying the same weight as equal voters. Designing instructions for the preparation of electoral rolls on that basis required a rewriting of the pre-existing bureaucratic colonial imagination on franchise and voting rights. This process began over four months of consultations between and among administrators at all levels throughout the country, during which they were asked to envision how the lists should be best prepared, the difficulties they might encounter and how these could be overcome. This all-India administrative exercise in guided democratic political imagination imbibed the notion of universal franchise and of procedural equality for the purpose of voting within the administrative machinery. This process deepened in the context of the intense struggles for citizenship and for a place on the roll that arose once the registration of voters began. The commitment to procedural equality that was cultivated in the process of the preparation of the electoral rolls, and that went beyond a notion of efficiency in election management, was strikingly demonstrated when the collector of Bombay, for example, took in November 1948 proactive steps to ensure the voting rights of vagrants, servants and footpath dwellers.

I suggest in the book, that it would not have sufficed for a democratic vision based on adult franchise to become merely embedded in the institution of electoral democracy. The abstract principle of universal franchise also had to be embedded in the imagination of people. They had to find meaning in it, to own it, and to find a place for themselves in it. They had to make it personal. I argue that the storytelling about the preparation of rolls connected people to a popular democratic political imagination. Stories about the preparation of rolls were published in governments’ press notes and in the press. There was not a single ‘pervasive popular narrative’. Numerous different stories, which represented varying concerns, and fragmented reporting from across the country appeared in the press, press notes and in the correspondences between people and administrators. These disparate stories appeared in relatively regular installments. They represented different concerns related to the core plot of the preparation of the electoral rolls. This contributed to the dynamic of a serialisation of the story of making universal franchise. It was a story of a monumental historical significance, grand in scope, and therefore like an epic tale of India becoming a democracy.

These stories stimulated peoples’ engagement with the making of the universal franchise. People began thinking about the universal franchise and to imagine their place on the roll from their personal perspective. Their correspondence with administrators about the preparation of rolls evidenced that. That people also began recognising their power in ensuring the success of the operation was illustrated when a labour union from Madras port, for example, wrote to the government that ‘It will be a waste to the Government both financially and politically if we do not actively extend our co-operation in their attempt for reparation of electoral rolls based on Adult Franchise on which depends the fate of toiling millions…’ (p. 119) This was in the context of their employer’s notification that they would not observe the days declared as public holiday by the government for the purpose of conducting the enumeration. Indeed, the success of the bureaucratic efforts were heavily contingent on the participation of people and their sense of commitment to and identification with the normative vision the universal franchise entailed. To borrow from Parthasarathy’s discussion, the democratic principle this vision entailed had to rest in peoples’ hearts, and be embedded in their minds, before any law or constitution could save it. All this informed peoples’ struggles in pursuit of their citizenship and voting rights on the ground in the preparation of the electoral rolls.

In the context of the contestations for a place on the roll, people essentially already acted as engaged, even passionate citizens, while the constitutional citizenship provisions were still undecided and debated. Since a prospective voter had to be a citizen, the preparation of the electoral rolls at the time was the most concrete and inclusive means by which people could be Indians and feel a belonging to the new state. The first draft electoral roll on the basis of universal franchise was ready just before the commencement of the constitution. It was prepared on the basis of tremendous efforts to include all the adult population. As I state in the conclusion to my book, the all-encompassing national identity of Indians on the eve of the commencement of the constitution was that of being equal voters. ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5). It is in this sense that Indians were voters before they became citizens. And their identity as such has become, and remained, very meaningful to them. It was not about the legal affirmation of being voters before citizens. In fact, formally-legally that would happen later on when the rolls would be finalised after the enactment of the election law. I therefore agree with Roy that this was not a matter of sequential development. And as Roy shows in her important book Mapping Citizenship in India (Oxford University Press, 2010), the life of legal citizenship in India has remained a contentious matter, and in some respects a thorny issue from the perspective of democracy.

The preparation of the electoral rolls on the basis of universal franchise was indeed a large-scale democratic state building project. In contrast to other state building processes at the time, it was not based on state distinctions between, for example, good or bad refugees; displaced or intended evacuees. There was no distinction between good or bad voters. The principles that underlay the logic of this state building process were equality and universal inclusion. The production of a register of more than 173 million people that were bound together as equal citizens for the purpose of authorising their government rendered existent the idea of ‘the people’, even before they became ‘We the People of India’ with the enactment of the constitution. It concretised, and made real the fiction that is called the people.

I thank Roy for the interesting questions that she raised, and I hope that they have been successfully addressed.

Response to Gautam Bhatia

In his essay Bhatia discusses the implications of the arguments in How India Became Democratic for contemporary constitutional interpretation. In doing so, he expands Parthasarathy’s analysis of the impact of the book’s themes on Indian constitutionalism. Bhatia addresses the question of ‘how to accurately characterise the moment of constitutional creation’. This question lies at the heart of various issues that came before the Supreme Court over the years, including decisions pertaining to fundamental rights. The Court has debated whether the constitution represents a moment of continuity with past colonial constitutional frameworks and therefore a stage in a constitutional evolution, or whether it was a transformative moment. The former view has prevailed in India’s constitutional jurisprudence. This, Bhatia argues, ‘has a direct impact upon modern-day constitutional interpretation’, and clearly an adverse one, in his view.

Bhatia shows how the view of the transfer of power as incremental and evolutionary enabled the court on various occasions to uphold colonial law, endorse colonial practices and to maintain a restrictive interpretation on fundamental rights. Paradoxically, on the basis of a rather teleological understanding of the moment of the creation of India’s democracy as a stage in a process of evolution, the court sometimes reinstated autocratic forms of colonial rule.

Bhatia argues that the moment of constitution creation was transformative. And that the transformation in the constitutional structure ‘will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.’ It is not, then, simply the letter of the law, but the meaning with which it is imbued in the particular context of that transformation. This is a fascinating argument.

Bhatia suggests three ways in which ‘universal franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society’: the leap in the size of the new electorate; its nature – unlike under all the colonial constitutional frameworks the individual was prior to the group; and its character as universal. To add a footnote to Bhatia’s point about the scale of the transformation in the character of the electorate, the franchise provisions in the Government of India Act, 1935 (Sixth Schedule), contained so many qualifications for being a voter for a divided and restricted electorate that this was sub-divided into 12 parts spread over 51 pages. Underlying his analysis, Bhatia picks up what to me is perhaps among the most, if not the most, revolutionary aspects of the moment of rupture from colonial rule and constitutional frameworks that the making of the universal franchise wrought (and which I already mentioned in my response to Roy): ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5).

I would like to attempt a small contribution to Bhatia’s arguments about the ways the making of the universal franchise marked a transformative constitutional moment. I will do so by thinking about the ‘constitution creation moment’ as a process. I will dwell here further on some of the points I made in more detail in my response to Parthasarathy.

The transformative nature of the making of the universal franchise also lay in the bold effort of undertaking it in anticipation of the drawing up of the constitution. The preparatory work started from November 1947. This was an extraordinary display of confidence in the fundamental principle of equality for the purpose of voting, and in the universality of the franchise, which marked the biggest rupture from colonial rule and its system of representation without democracy. Taking this leap resulted in a far more fundamental constitutional transformation. As I suggested in discussing the status of the right to vote, the experience of preparation of the electoral rolls on the basis of universal franchise, particularly the realisation of attempted disenfranchisement on the ground must be overcome, drove a radical change in the constitutional provisions for elections and their management. The new provisions, which set up an independent central election commission, was meant to supersede states rights over the universality of the franchise, and to create an institution that would protect citizens’ right to vote.

This roundtable and the questions raised by Bhatia suggest that a closer history of other constitutional provisions might throw more light on the question of ‘how to accurately characterise the moment of constitutional creation’?

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[1] Also see Aditya Sondhi, ‘Elections’, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of The Indian Constitution, Oxford: Oxford University Press, 2016, pp. 196-200.

[2] See Bruce Ackerman, ‘The New Separation of Powers’, Harvard Law Review 113, no. 3, 2000, pp. 715– 16; Madhav Khosla, The Indian Constitution, New Delhi: Oxford University Press, 2012, pp. 38– 43.

[3] H. V. Iengar, Oral History Transcript, p. 146, Nehru Memorial Museum Library.

ICLP Book Discussion: Ornit Shani’s How India Became Democratic – III: The Transformative Constitution

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book discussion, democracy

(This is the third essay in our round-table discussion of Ornit Shani’s How India Became Democratic. In this essay, I discuss the implications of Shani’s argument for constitutional interpretation. Following this, we shall have a response by the author.)

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In 1964, a seven-judge bench of the Supreme Court was asked to decide whether certain forest rights granted by the ruler of a princely state to some of his subjects continued to exist even after the accession of the princely state to the Union of India. Could these people continue to enforce the old ruler’s commitments against a new sovereign? A narrowly divided Court (split 4 – 3) held that they could not, agreeing with the contention of the State of Gujarat that the takeover of the princely states was “an Act of State” that automatically extinguished all subsisting rights, and that those rights remained extinguished unless specifically recognised by the new ruler.

To decide this question, however, the Court had to first answer another question: what was the nature of the transfer of power from the princely rulers to the newly-birthed Union of India? In his concurring opinion, Justice Shah characterised it thus:

“… [the] promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign.”

The Respondents relied upon the judgment of Justice Vivian Bose in Virendra vs State of UP. Justice Bose had held that the Independence had been a transformative moment, ushering in a new legal order where the reign of arbitrariness and despotic power was replaced by the rule of law. Consequently, the “Act of State” doctrine – which placed certain actions of the State beyond the pale of the legal system – simply had no application in the post-Constitutional era. Justice Shah disagreed:

“These assumptions are not supported by history or by constitutional theory. There is no warrant for holding at the stroke of mid-night of the 25th January, 1950, all our pre- existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new sovereignty: it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.”

In our constitutional history, for the most part, Justice Shah’s views have carried the day. The argument is a familiar one: from the 1919 Government of India Act, which first introduced representative government under the colonial regime, there had been incremental progress towards Independence. Waymarked by events such as the 1935 Government of India Act, it is argued that this incremental progress almost imperceptibly culminated in the grant of Independence. The ruler changed; partial suffrage became full suffrage; the legislative assembly replaced the Office of the Governor-General as the supreme law-making body; and all of this was a logical evolution from what came before. Fundamentally, nothing changed: the old laws remained, the old governing structures remained, the old forms of rule remained.

This is not an academic debate. The question of how to accurately characterise the moment of constitutional creation has a direct impact upon modern-day constitutional interpretation. For example, it was on the basis of the evolutionary theory that the Bombay High Court, in Narasu Appa Mali, uncritically accepted the characterisation of “personal laws” by the colonial Courts; it was on this unstated basis that the Supreme Court, in Kathi Kalu Oghad, used colonial penal laws such as the Identification of Prisoners Act to narrow the scope of Article 20(3) of the Constitution, reasoning that, after all, the framers could not have intended to frame so wide a guarantee against self-incrimination that the Identification of Prisoners Act would be made redundant; and, until a long-overdue course-correction in Krishna Kumar, it was by invoking the Governor-General’s near-absolute powers of Ordinance-making in the pre-Constitutional era that the Supreme Court granted an almost unchecked discretionary power to the Executive to issue ordinances under the Constitution. The upholding of colonial laws, the endorsement of the continuity of colonial practices, and the restrictive interpretation of Part III of the Constitution – these three staple features of our constitutional jurisprudence are all founded upon the unarticulated premise that the Constitution represents a moment of continuity (or, at best, “evolution”), rather than transformation.

It is in this context that Ornit Shani’s How India Became Democratic is a work of great importance in thinking about the Indian constitutional tradition. As Suhrith and Anupama have demonstrated in their essays, in its granular and detailed elaboration of independent India’s first general election, How India Became Democratic challenges the simplistic claim that the grant of universal franchise was an easy or natural evolution from the representative institutions that existed under the colonial regime. As Shani points out in her Introduction:

“The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people.” (p. 5)

How did this happen? Shani writes about the preparation of the first electoral roll, the strenuous efforts that were made on the ground, and geared towards inclusion rather than exclusion, and the commitment of bureaucrats and officials towards realising the goal of universal adult franchise. At a more abstract level, however, what comes through Shani’s account is that there were three significant ways in which universal adult franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society. First, sheer numbers: under the colonial regime, the extent of representation never crossed 10% of the electorate. From 10% to an aspiration of universality is not an “incremental evolution” – it is, more properly, a fundamental change. Secondly, consistent with the colonial practice of viewing Indian society as an agglomeration of groups that had normative priority over the individual, under the 1919 and 1935 Acts, representative government was conducted through separate electorates. This was repudiated in the Constitution, which envisioned a single electoral roll and universal adult suffrage – thus emphasising the priority of the individual ver the group. And thirdly, the colonial regime treated voting as a privilege, and threw up substantial barriers in order to ensure that only the “worthy” were able to vote. These included property and educational requirements, and for women, these requirements were linked to the status of their husbands. Consistent with Nehru’s observation that any procedural barriers towards exercising the right to vote would amount to a negation of democracy itself, the Constitution removed these disqualifications, placing instead universal adult franchise at its heart.

Therefore, in the size of the electorate, the nature of the electorate, and the character of the electorate, there was absolutely nothing “incremental” about what the Constitution did: it was a foundational and radical change. It is in this context that we can understand what Shani means when she writes that suffrage instituted procedural equality in a deeply hierarchical and unequal society.

We are therefore in a position to see that Justice Shah’s characterisation of the Constitution as creating only a “new governmental setup” and having nothing to do with a change of “sovereignty” is flawed. It is flawed because it puts the cart before the horse: from the fact that colonial laws and legal structures survived into the post-Constitutional era, it is extrapolated that the framing of the Constitution was more a conservative moment than a transformative one. This, then, becomes a self-fulfilling prophecy in a case like Kathi Kalu Oghad, where the existence of colonial legal structures imperceptibly mutates into a justification for them. The logic, however, works the other way: the character of the Constitutional moment should be judged on its own terms (as Shani does), and it should then be asked (as Justice Bose did) how, within the new democratic system, the continuing legal structures ought to be understood. Indeed, Justice Bose’s crucial insight in Virendra was precisely this: that a fundamental change in the constitutional structure (from autocracy to democratic institutions) must necessarily have an impact on constitutional rights (even though the content of the laws would remain the same).

The American legal scholar Akhil Amar provides a good example of this. He examines the First Amendment to the American Constitution, which guarantees “the freedom of speech.” Now, the freedom of speech, as it existed in English common law, was a very limited right in the late-eighteenth century, providing protection only against prior restraint. However, Amar points to the fact that freedom of speech in the British Parliament was virtually absolute, and this was at least partly because according to British constitutional theory, sovereignty rested in Parliament. Amar then argues that the American revolution marked a fundamental shift in this understanding, and in the new American republic, sovereignty was deemed to vest in the people. From this, Amar concludes that when the First Amendment guaranteed “the freedom of speech”, the fact that sovereignty had shifted from Parliament to People indicated that the (absolute) free speech rights enjoyed by Parliament now vested in the people.

I do not here want to comment on the historical accuracy of Amar’s argument. The point, however, is this: a transformation in the underlying constitutional structure (including the form of government) will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same. Laws that had a certain meaning and content under an authoritarian regime must have a very different meaning under a democratic system (and this, precisely, was the reasoning of the Court in Krishna Kumar, when it rejected the colonial understanding of the Ordinance-making power).

For this reason, Shani’s demonstration that universal franchise was a transformative structural change provides us with a powerful argument to think through – and indeed, rethink – many of the features of our constitutional jurisprudence that have become virtually sedimented by the passage of time. Suhrith has written about the Rajbala judgment, but there are many others: for example, is it consistent with the framers’ commitment to prioritising the individual over the group through a common electoral roll for the Court to continue prioritising the group over the individual by excluding personal laws from constitutional scrutiny? Is it consistent with the conscious decision of the framers that women were to be treated as public citizens for the Court to continue to apply gendered stereotypes while deciding cases under Article 15(1)? And above all else, is it consistent with the Constitutional commitment to transform subjects into citizens for regimes of legal impunity (under laws such as AFSPA and the UAPA) continue to flourish with the blessing of the Court?

In his critique of Justice Shah’s judgment, K.G. Kannabiran notes that:

This interpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom, the repressive legal structures on whose altars people were sacrificed and their dreams shattered. It ignores the aspirations of the people to build a better society for themselves. The rise of political democracy leading to liberation from foreign domination is not a mere matter of evolution. There can always be a break in the continuity, a severance from the past, without being preceded by violence and destruction. There cannot be, there should not be two social histories one for political theorising and another for legal theorising. The setting up of a Constituent Assembly and the passing of the Indian Independence Act, 1947 are a consequence, a culmination of the struggle for independence. It was the shared belief of a large section of the people that there was a political severance on August 15, 1947. and a severance constitutionally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution. The people who met in the Constituent Assembly were nor mere technicians who had gathered there to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our undemanding or interpretation of the Constitutio With that understanding absent, the institutions under the Constitution were looked upon as a continuation of the colonial system of administration.

In the continuing struggle to breathe life into Kannabiran’s constitutional philosophy, in the teeth of a judicial tradition that has too often treated the Constitution as an extension of what came before, Shani’s account of independent India’s first general election is invaluable: it is a point of departure for all of us to think more deeply about what 1947 meant, and how the transformative character of that moment ought to map onto how we think about our Constitution, our citizenship, and our rights.

ICLP Book Discussion: Ornit Shani’s How India Became Democratic – II: Constituting the People

Tags

book discussion, democracy, elections

(In this second essay in our Roundtable on Ornit Shani’s How India Became Democratic, political philosopher Professor Anupama Roy, author of Gendered Citizenship, examines some of the book’s central claims.)

It is not often that one comes across a book which is an outcome of meticulous spadework in the archives opening up for scholarly attention a lesser known aspect of the making of the Indian Republic and democracy. Ornit Shani’s book on the preparation of the electoral roll for the first general election in India, which followed for the first time, the principle of universal adult franchise, is remarkable – quite like the feat Shani has studied in the book – both in terms of the enormity of the task and fortitude in the face of the labour involved.

Through an examination of the bureaucratic processes of the preparation of the electoral roll, Shani seeks to establish two points, both of which are of significance to the way in which scholars have thought about citizenship in India. Shani argues that Indians became voters before they became citizens (p.5). Indeed, it was in the course of the preparation of the preliminary electoral rolls from November 1947, set in motion by the ‘the note’ sent from the Constituent Assembly Secretariat to the various provinces and states of India that the process of inserting ‘the people’ into the administrative structures of the state was initiated. Indeed, it was the quest for a ‘place in the roll’, argues Shani, which prepared the ground for ‘the conceptions and principles of democratic citizenship that were produced in the process of constitution making from above’ (p.7).

A second point that Shani makes is about the relationship between democracy and the political imagination of the people of India, arguing that it was the implementation of universal franchise that elicited ‘both a sense of Indianness and commitment to democratic nationhood…’ (p.2). Moreover, she argues that it was in the contestations and the language of interaction that was produced at the ground level, in the process of making the roll, that political imagination itself was democratised (p.6).

These points are made painstakingly through a study of archival sources drawn primarily from the Election Commission’s internal records, which Shani was fortunate to access for two years before they were shifted to the National Archives in Delhi, Constituent Assembly Debates, and other official sources along with newspaper archives and interviews with Election Commissioners. Each of the six chapters which comprise the book, work out an aspect of the preparation of the electoral roll, and together they cover roughly the period between 1947-48 and 1949-1950. This was broadly the period from the beginning of the preparation of the electoral roll to the time the Election Commission started functioning as an integrated institution, under Sukumar Sen, the first Chief Election Commissioner of India.

In my discussion of these points, I will tease out some of the broad arguments which emerge in the book to show their complexity, but also how in each case there could be space for another argument, or an argument different from the one Shani makes.

1. Genealogy of the ‘people’:

The concept of the ‘people’ is central to the universalist imaginings of modernity. It is abstract but also historically specific and can be traced through many genealogies, in which it assumes diverse forms. If one were to trace a particular genealogy of the people, one has to work out its formation in specific historical contexts, the meanings that are attributed to it, and the manner in which it operationalises itself. In the postcolonial context in India, the people were constituted at a pan-Indian scale of anti-colonial struggles for self-determination, but also in, and through specific sites where struggles took place against local power formations. The people were also constituted as the repository of sovereign power when they gave themselves the constitution on 26^th November 1949 – a Constitution that they had enacted (through the Constituent Assembly). That the people also held constituent power was stated emphatically in Article 395 of the Constitution, which repealed the Indian Independence Act, severed all relations with colonial authority, and rejected the chain of validation which required that the Indian Constitution be placed before the Crown-in-Parliament for validation. The electoral domain was another space where the people acquired meaning and form – the people were constituted through a collective act of voting ‘simultaneously’ in a manifestation of unfettered popular sovereignty, achieved through the deferral of political authority, which is concentrated in the apparatus of the state.

The meaning of the people communicated through these diverse forms is identified with a specific ‘action’, which when expressed, constitutes the people as a collective body – emblematic as well as physical and corporeal. Ornit Shani makes a significant argument about the way in which ‘universal’ franchise inserted the principle of equality in the electoral roll and consequently a democratic disposition (p.18) among the people who were responsible for preparing the roll. On the other hand, in the process of acquiring a ‘place on the roll’, adult franchise played a role in connecting the people to a popular democratic imagination (p.19). I was curious how the big connection between a bureaucratic process and democratic imagination could be made. If one were to read the documents and communications among the administrators as accounts of how they managed to achieve the impossible task of registering Indians as voters, as a prelude to the next step of actually voting in an election (described by Sukumar Sen as ‘a massive act of faith’), it could appear to be a problem of administering an election efficiently, rather than making people feel equal, and make the leap to a horizontal camaraderie of equals.

In chapter 3 on the electoral roll as a ‘serialised epic’, Shani suggests that preparation of the electoral roll on the basis of universal adult franchise became part of the ‘popular narrative’. This narrative played a role in connecting people to a popular democratic imagination, ‘referring to manner in which it became not merely a system of rules that were to be observed but also part of the normative world of people and the stories, individuals make of it themselves’ (p.86). In the conclusion (p.253) Shani takes the argument further to say that through a process of consultation, the Constituent Assembly Secretariat engaged public officials, people and citizens association in the details of voter registration and citizenship, mentoring them into both the abstract principle and practices of electoral democracy. so much so that ‘people and administrators began using the draft constitution to pursue their citizenship and voting rights, and they linked its abstract text to their everyday lives’ (p. 252-53). Most of the material Shani discusses concerns the humungous ask of enrolling the entire adult population, in which ‘awkward’ categories – the refugees, displaced persons and women presented challenges of different kinds. This took place in an absence of an electoral law on the modalities of elections, without a precise legal-constitutional framework on citizenship, and the provinces were beset with specific problems pertaining to registration. In this literature it is difficult to find a corresponding ‘pervasive popular narrative’ on franchise, which according to Shani was of an order which ‘communicated substantially and therefore convincingly, India’s movement towards becoming a democracy’ (p.89). One would assume that such a narrative did exist, but a tangible and substantial expression of that is not present convincingly in what Shani calls the ‘serialised epic’.

2. Chronosophy of ‘citizenship’:

Immanuel Wallerstein cautioned against a linear narrative of historical change, to argue that historical transformations do not take place sequentially in ascendant or descendant forms, but are uneven and undulating, punctuated by conscious decisions made along the way. When Shani makes the point about Indians becoming voters before they became citizens, she is perhaps referring to the fact that the legal affirmation of citizenship happened only with the commencement of the Constitution. While there was a legal vaccum on who were Indian citizens (there were in fact two periods of such vacuum between 1947 and 1949 and then again between 1949 and 1955, when the Citizenship Act of India was passed by the Parliament), it did not mean that questions of legal citizenship were not being addressed in ‘problem’ cases through instructions from the CAS. Indeed, the questions of legal citizenship were coming up and were being addressed primarily in the context of preparing the electoral roll, since only citizens could vote. Indeed, rather then a sequential development, one could perhaps see them as overlapping and simultaneous, taking shape through documentation practices of the state, and alongside the development of the institutions of the state and their functional differentiation. Indeed, over the years, (and controversially so) resolution of the contest over citizenship in the preparation of electoral roll has come within the purview of the ‘superintendence and control’ of elections function of the Election Commission of India (under Article 324).

An important point that Shani seems to be making is that in the process of finding a place on the electoral roll, a political community organised on the principle of horizontal camaraderie of equals could now be ‘imagined’. We may see the imagination of a community of equals marking the transcendental moment of independence, the emphatic rupture from the past, and the ‘triumphal’ democratic imaginary, which is a component of democratic citizenship. This imagination can, however, exist independent of the constitutional/legal frameworks of citizenship, as well as the statutory frameworks determining who can vote. Indeed, the peculiarity of the electoral roll and the legal and conceptual association/dissociation of the two – voter and citizen – is evident in the contests over the electoral roll in Assam. In the National Register of Citizens being prepared in Assam, a citizen-resident of Assam is required to trace his/her lineage to the electoral roll of 1971 in Assam, and then buttress it with the legacy data going back to the 1951 NRC of the state.

3. Constitutionalism, State Formation and ‘Anticipatory Citizens’:

The period 1947 to 1950 is replete with polyrhythms of the democratic imaginary, one of which Shani writes about, i.e., the preparation of the electoral roll. The framing of the Constitution was another rhythm of democracy being produced at the time. As a deliberative body which was entrusted with the task of making the higher order rules from which all future governments would draw their authority and legitimacy, the debates in the Constituent Assembly enacted a space for the public, where questions concerning the future polity were debated and resolved. Baxi sees this process as following the imperative of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’. These struggles shaped the project of writing the constitution, the ‘specific modes of governance and production of juridical norms’, and also the relationship between the constitution, law and the ongoing state formative practices (Baxi, 2008, 93). The process of enrolling electors broke free from the colonial practice of what Shani calls the ‘guided democracy’ disposition of the colonial bureaucracy (p.34) to instill a new set of bureaucratic attitude in the bureaucracy based on the ‘procedural equality of voting’. While agreeing that the enrollment practices marked a rupture from the colonial past, is it possible to see the registration of electors as part of another tendency, which has to do with state formation? Indeed, as a body framing the Constitution, the Constituent Assembly also alternated as the Legislature and the government, taking decisions, which were percolating down to officials at the local levels. The various flows of communication between the government functionaries, across Ministries and Departments, the Constituent Assembly and the Legislative Assembly, give an insight into the ‘innards’ of the state, the manner in which the separation of powers among institutions, their own understanding of these powers, the problem of drawing boundaries between and among institutions, and more generally the emergence of broad patterns of settling in of institutions and institutional practices, and the governmentalisation of the state was taking place through deliberations.

The governmental regime of enrolling voters, for example, involved working with a new principle of registration (procedural equality) but at the same time it was also a task of sifting and sorting, of devising administrative and legal categories e.g., displaced persons, refugees, evacuees, abandoned women, classifying and categorizing those occupying the liminal spaces of citizenship, to include them in different ways. The excision of ‘descriptive’ women from the universal roll is one example. The other example is how displaced persons continued to pose a problem for the Election Commission when the electoral roll was being finalised before the first general election, after the Representation of the People Acts came into existence. As Shani has mentioned, the Constituent Assembly had decided that the names of all displaced person be included in the voter’s list on the strength of their oral declaration. According to the narrative report of the Election Commission of India on the first general election, the states were instructed to enroll all such persons in the electoral rolls and a distinguishing mark be placed against their names, so that their citizenship status may be confirmed later after the Constitution came into force. In finalizing the electoral roll, the marked voters presented and also experienced problems. In Delhi, for example, which had a large number of displaced persons who resided in temporary shelters when the electoral rolls started being prepared, had by September 1951, when the rolls were published and publicized, shifted to colonies and townships set up for their rehabilitation. These voters were then not entitled to vote in the polling stations, which were set up in the localities in which they came to finally reside. The localities in which they were originally resident and had enrolled to vote, now formed a part of another constituency. The displaced persons experienced their enrollment as voters differently, therefore, and aspired for ‘natural constituencies’ based on shared interests, rather than constituencies following a territorial grid. On page 129 Shani does argue that ‘the preparation of the electoral roll was a state building project of the largest possible scale in terms of its population and territorial reach’. This argument would then indicate a logic of state building in terms of reaching to its population spread over a definitive territory (embracing and encompassing functions of the modern state, as John Torpey would say) pointing towards an imperative different from that of a democratic imaginary. Read with the earlier argument on enrollment practices contributing towards making a democratic imaginary of a people, this argument presents a paradox, which inheres in all democracies.

I learnt a lot from Shani’s work and I’m looking forward to her next work on the first general elections in independent India.

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

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Constitutional History, democracy, elections, round-table

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

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

—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 

The Educational Disqualifications Case: A Round-Up

Tags

democracy, educational qualifications, voting

Today, the Supreme Court finished hearing arguments and reserved judgment in constitutional challenge to the Haryana Panchayati Raj Act, bringing to an end a protracted judicial process that began last year with the passage of a similar ordinance in Rajasthan. On this blog, we have been covering the developments since that time. Here is a curated list of blog posts on the subject, as we await judgment in this important civil rights case.

1. The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance, January 5, 2015 (arguing that educational and other disqualifications contravene the freedom to vote and to contest elections, which are protected by Article 19(1)(a)), available here
2. The Rajasthan High Court’s (interim) Decision on the Panchayati Raj Elections, January 16, 2015 (arguing that the High Court’s focus on the number of people disenfranchised by the law ignores the character of an individual right), available here
3. Guest Post – I: The Panchayati Raj Ordinance Case and Article 14: A Codicil, January 17, 2015 (Vasujith Ram argues that educational restrictions bear no nexus with the stated objectives of the 73rd and 74th Constitutional Amendments, designed to introduce local government), available here
4. Guest Post – II: The History of Educational Qualifications for Democratic Participation in India, January 20, 2015 (Udit Bhatia discusses the history of educational qualifications on voting and contesting, from colonial times to present day), available here
5. Guest Post: The (New) Rajasthan Educational Qualifications Ordinance: Lessons from Pakistan, August 3, 2015 (Ayushi Singhal argues that Article 21A casts an obligation upon the State to provide education, because of which it cannot penalise its citizens for not having one by disqualifying them form contesting; she also draws upon the experiences of the Supreme Court of Pakistan, which struck down a similar legislation), available here
6. Haryana’s Educational Qualifications Ordinance Becomes an Act, September 9, 2015, available here
7. Election Disqualifications and the Constituent Assembly Debates, October 1, 2015 (arguing that a close reading of the Constituent Assembly Debates prohibits the kinds of disqualifications imposed by the Rajasthan and Haryana laws), available here
8. Paragraph 85 of Justice Chelameshwar’s Dissenting Opinion in the NJAC Case, October 19, 2015 (drawing out the conceptual distinction between age-based restrictions and substantive restrictions upon voting and contesting), available here
9. Election Disqualifications, Representation Reinforcement, and the Case for a New Standard of Article 14 Review, October 22, 2015 (arguing that the structure of a democratic republic and the nature of judicial review requires a higher threshold under Article 14 for laws that tinker with the election process), available here

—

For the reasons that I’ve provided in the essays above, I believe that the Haryana Act violates Articles 14, 15(1) and 19(1)(a) of the Constitution, and is completely inconsistent with the structural foundations of republican democracy that form part of the basic structure of the Constitution. The basic purpose of elections is not to select the most effective, or most competent candidates based on some a priori screening process that excludes certain sections of the population altogether, but to give effect to the peoples’ choice. Consequently, a bar upon standing for political office is equally a restriction upon the right to vote. Furthermore, the restrictions – educational, property and debt-based – target the most vulnerable sections of the society (especially women), and ensure further exclusion and marginalisation from political power.

It remains to be seen whether the Court will look at things the same way. However, at the very least, it is to be hoped that it will seriously engage with the constitutional questions, and not merely give us the trite “the right to stand is only a statutory right” slogan. That is true, but as I (and others) have tried to show, the issue is far deeper and more complex than the simple absence of a right to stand in the constitutional text.

The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance

Tags

democracy, elections, freedom of speech, representation

(H/T to Mythili Vijay Kumar for pointing out Javed vs State of Haryana and helping me through the attendant issues)

Today, the Supreme Court dismissed a challenge to the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 (approved by the Governor on December 19, 2014). The dismissal was on procedural grounds. As far as I can understand, the petitioners were granted liberty to approach the High Court. Considering that the nomination period ends tomorrow, and (again, to the best of my understanding) the Court refused to grant an extension, it is likely that the challenge is now (for the time being, at least) infructuous. Nonetheless, we have probably not heard the last of this. This post considers some of the issues involved.

This ordinance makes certain educational qualifications a necessary pre-requisite for contesting local government (Panchayat) elections.  The petitioners have argued that the Ordinance is discriminatory, and “abrogates their constitutional right to contest elections.” They contend that in light of low literacy levels in Rajasthan, the Ordinance is especially slanted against the rural poor. Others have pointed out the gendered impact of the Ordinance, which will act to exclude women on a much larger scale than men.

The contention that literacy requirements are designed to exclude already marginalised groups from the political-democratic process is neither new, nor limited to India. As the historian Alexander Keyssar notes, in his magisterial account of the history of the right to vote in the United States, property and/or literary qualifications were consistently used to constrict the scope of the right to vote, excluding, at various points, landless labourers, women and blacks. The link is not difficult to spot: access to education is mediated by socio-economic status. The constituency that has not received a basic formal education is most likely to be overwhelmingly poor (economic reasons), female (social and economic reasons), and migrant.

Whatever we may think of the legislative wisdom of the Ordinance, the constitutional challenge, nonetheless, has to overcome a significant hurdle. This is because the “right” to vote (and, by extension, the right to run for office) has never been considered by the Supreme Court to be a “constitutional” right. The Court has repeatedly stated that it is (albeit “anomalously”) a pure statutory right, created by law and therefore regulated by it. For instance, claims that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) have been dismissed on the ground that because there is no “antecedent” right to stand for election, there is no constitutional violation. Citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law.

This was the reasoning of the Supreme Court in an analogous case in 2003, called Javed vs State of Haryana. In Javed, a provision of the Haryana Panchayati Raj Act stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children.” The constitutionality of this provision was challenged under Articles 14, 21 and 25. A three-judge Bench of the Court rejected the challenge.

At the heart of the Court’s Article 14 reasoning was the proposition that since the right to stand for election is not an antecedent constitutional right, standard principles of rationality review under Article 14 will apply. It observed:

“The classification is well-defined and well- perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.“

Responding to the contention that the number of children one had bore no relevance to one’s capabilities to discharge the duties of one’s elected office, the Court held that “we have already stated that one of the objects of the enactment is to popularize Family Welfare/Family Planning Programme.” Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny.

One can easily see how a similar argument will squarely apply to the Rajasthan Ordinance. By making literacy a pre-requisite to contesting local elections, the “objective” is to promote literacy in India (something nobody can have an objection to). That literacy bears no relevance to one’s ability to perform the duties of electoral office is – per Javed – irrelevant, because the legislative policy is something else altogether.

Notwithstanding this, one must also note that the understanding of the place of voting and elections within the constitutional scheme has changed over the last decade. In Union of India vs Association for Democratic Reforms, decided one year before Javed, the Supreme Court distinguished between the “right” to vote (statutory) and the “freedom” to vote (constitutional). This latter freedom was grounded in Article 19(1)(a) (freedom of speech and expression). The Court invoked the familiar argument that at the heart of the 19(1)(a) guarantee were ideas of republican democracy. Consequently:

“Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

In 2013, this view was affirmed by the famous “NOTA judgment” of the Supreme Court. The directions to include a “None of the Above” option in the EVMs was grounded in the reasoning that voting – as an integral part of the democratic process – is protected expression under Article 19(1)(a).

Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? When examining the NOTA judgment, I’ve suggested that the only way of reconciling the two is as follows: the legislature is permitted and entitled to regulate the election process (which it does through the Representation of Peoples Act, and other similar statutes). The legislature can prescribe the modalities of how elections are to be carried out, and thus it can (within reason) determine how the freedom to vote is to be exercised. However, if the legislature makes a law that regulates or restricts not how the electoral process is to be carried out, but who is entitled to participate in it, then such a law must be subjected to rigorous scrutiny by the Courts – because that goes to the very heart of the constitutional freedom itself.

The right/freedom to vote, and the right/freedom to stand for office are conceptually inseparable, as they form equally integral parts of the democratic process. Consequently, the same logic applies to the latter. Admittedly, Article 84 of the Constitution (dealing with the legislature) requires candidates “possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”, thus expressly envisaging the possibility that Parliament may pass a law limiting the entitlement to participate in the democratic process on the basis of certain qualifications. Nonetheless, the freedom-of-voting decisions of the Supreme Court indicate that legislation that directly disenfranchises persons (by ‘disenfranchise’, I mean both the right to vote and the right to stand for office) ought to be subjected to more rigorous scrutiny than a ‘rational review’ standard.

In particular, the State should not be allowed to introduce extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation. This would amount to what is called an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution. Secondly, the State should be required to justify the relationship between the restrictions that it has imposed, and the fundamental place of the electoral process in a republican democracy. For instance, a law that prohibits persons with criminal convictions from standing for elections has a demonstrable nexus with the role of elections in a the democratic process. A law that prohibits persons on the basis of literacy does not.

Republican democracy is based upon the core idea that every citizen has the freedom to participate in the workings of democracy, whether by voting or by standing for elected office. Every limitation upon this freedom is problematic. This is especially true when the limitation affects those most marginalised by the political process. Consequently, I would argue, with respect, that the Court was incorrect in dismissing the petition, because there are crucial constitutional issues involved. If this case comes back before the judiciary, it is to be hoped that some of these issues will be considered.

Basic Structure – VIII: Conclusion (of sorts)

Tags

basic structure, democracy

Over the last few of posts, we have examined the basic structure doctrine as enunciated and developed by the Indian Supreme Court. There are two broad questions before us: first, from an external point of view, it is principally justified for the judiciary to impose substantive limitations upon the power of the Parliament to amend a written Constitution? The external question is further divided into two further questions: is there anything in the Constitution that supports this doctrine? And what – if it exists – is the philosophical justification for it? And secondly, from an internal point of view, is the manner in which these limitations have been imposed by the Court consistent and coherent with the principled justifications? In the process, we have discussed the two basic types of objections that have been raised against the doctrine and which, indeed, are standard objections against any Constitutional doctrine: first, that what the doctrine seeks to accomplish is morally illegitimate, as it violates the principle of our understandings of democracy; and secondly, as the doctrine itself lacks a firm Constitutional basis, it is constitutionally illegitimate.

These questions are important because, at the very least, it is undeniable that the basic structure doctrine confers wide-ranging powers upon the Court. And at the end of the day, such powers need to be justified on grounds firmer than the technical meaning of the word “amend”. They need to be justified upon the same grounds that justify our Constitution itself – popular sovereignty, republicanism, representative democracy, and so on.

We began by considering a non-majoritarian understanding of both democracy and individual rights, one that understands democracy itself as predicated upon the guarantee of basic rights as essential checks upon the powers of majoritarian institutions such as the Parliament. This naturally raised the question: who should determine and enforce these limitations? The logical answer is a non-majoritarian institution which, in our culture, is the Court.

We then considered a second justification that, unlike the substantive-rights argument, focuses on process. It holds that the framing of the Constitution was the culmination of a heightened, lengthy and sustained process of public engagement (through the freedom struggle) which, because of the depth of involvement of the people, is a “higher form of lawmaking” than the ordinary legislative and amendment processes – and that therefore, the values entrenched by that process can be preserved from change until another similar process comes along. In this context, we located Indira Gandhi’s actions in the 70s as a failed constitutional moment – one that attempted to make changes as far-reaching as the framing, but failed to have this vision accepted by the People.

Subsequently, we examined the textual, historical and structural bases given to the doctrine by the Supreme Court, and inquired whether the doctrine that emerged as a result of this was consistent with the principled justifications argued for earlier. It was found that but for the glaring example of federalism, both approaches yielded largely the same results. We focused on the manner the doctrine has been developed, i.e. the highly abstract formulation of basic features, and the Court’s refusal to provide a complete list of the same. We found that there were good reasons for holding that this practical operation of the basic structure is fully consistent with the principles that justify the doctrine in the first place, as it leaves the widest possible room for the legislature to operate, and also averts the nightmare of  inflexible rigidity.

And lastly, we considered a third approach to justification, one that seeks to avoid the pitfalls of both the substantive approach (an intuitive laundry-list of rights that just seem important) and the procedural approach (no ultimate constraints on the majority). We argued that if our system of government, a representative democracy, is to be truly effective, there must exist a structure of meaningful dialogue and deliberation, through which individual preferences are formed, modified, modulated and transformed, and ultimately expressed in public decisions. Meaningful dialogue itself presupposes a broad right of free speech, a rough parity between the participants (equality), an umpiring of the process itself (judicial review), participation (republican democracy) – that is, many of the basic features. The basic structure doctrine, then – which we saw is even implicated by the common law – provides a structural framework of constraint upon the democratic process, that makes it meaningful and worthwhile to engage in the process in the first place.

In summation, therefore, there exist arguments – perhaps not dispositive, but good arguments nonetheless – that the basic structure doctrine is  justified on the following three broad levels: first, its existence, as a matter of political and moral principle; secondly, its enforcement, in terms of the institutional authority (the judiciary) responsible for its enunciation and development; and thirdly, its application, that is, the manner in which the judiciary has applied it.

Therefore, we can – tentatively – conclude by submitting that the basic structure doctrine should not necessarily be viewed as a vague and imponderable chimera used by a tyrannical judiciary to arrogate supreme State power to itself, and as a weapon to destroy the foundations of democracy. It need not even necessarily be viewed as a necessary evil, a counter-majoritirian check to correct the worst excesses of democracy, but a regrettable restriction nonetheless. In the last analysis, the basic structure is – plausibly – an essential aspect of democracy itself, a set of constraints that makes democracy work.

Does that mean that everything is perfect? Of course not, because the workings of the basic structure are left to judges who are, after all, fallible human beings. So far, the judiciary has shown both restraint and wisdom in its handing of the basic structure doctrine, but of course, there is no guarantee that it will always be so. Yet if our judges occasionally go wrong, as they are bound to, if at times their decisions stultify the scope of Parliamentary action more than is necessary or called for, it is only the inevitable cost we must bear for vesting ultimate State power in fallible human beings. The basic structure doctrine seeks to achieve a fine balance between majoritarianism, democracy, separation of powers, and basic individual rights. By the very virtue of its complexity, its implementation can never be perfect; but then, as Aristotle understood so long ago, nothing ever can.

Basic Structure – III: “We the People”, Higher Lawmaking and the Idea of Dualist Democracy

Tags

42nd amendment, basic structure, bruce ackerman, democracy, dualist democracy, rawls

In his written submissions in Kesavananda, Mr. Palkhivala argued that the “ultimate legal sovereignty of the people” could not be vested in the Parliament. This draws support from the preambular phrase – “We the People… do hereby enact, adopt and give to ourselves this Constitution” – suggesting that the Indian Constitution is meant to embody a form of social contract between the people of India. The contractarian theory is premised upon the idea that institutions of a political democracy (including the rule of the majority) are the result of a consensus between free and equal individuals who have joined together to form the State. The basis of democracy, therefore, is the equal freedom of sovereign democratic citizens. The concept of “freedom” contains within it not only equal political participation, but also – as Rawls argues – basic rights and liberties such as the freedom of thought and conscience, the rule of law, etc (see Rawls, A Theory of Justice, p. 440). Giving up these rights would be tantamount to depriving oneself of both freedom and sovereignty, and would take away the basic premise of contractarian democracy (a point made by both Locke and Montesquieu). Therefore, in a Constitution that is founded upon a social contract (as the Indian Constitution purports to be), the people are entitled to reserve certain basic rights to themselves, which the government cannot take away or abridge.

But how, it may be objected, do we know what equal citizenship entails? And why, after all, ought we leave the responsibility of determining features of equal citizenship to unelected judges often drawn from a narrow pool of society? To that, the answer is that the requirements of equal citizenship – that is, the elements of the basic structure, are drawn from the Constitution itself, because “We the People” wrote them in. In other words, the theory of legislative sovereignty cannot exist in India. This is because a written Constitution, possessing the “validity of a statute emanating from the sovereign people”, and which defines the fundamental political arrangements of the State, is clearly superior to the “ordinary legislative organ.” (see the arguments of E.S. Corwin) Furthermore, not only has the Constitution defined the nation’s fundamental political arrangements, it has also brought into existence the three wings of State, and has allocated the distribution of powers between them. Therefore, the power of the legislature is clearly subordinate to that of the Constitution, and co-ordinate to the other branches of government. In this context, it may be argued, the legislature, which derives its power and its very existence from the Constitution, cannot use that power to destroy it. Secondly, none of the three State organs can use its power to destroy or abrogate the powers and functions of any of the other organs, as the Constitution clearly postulates, at the very least, the existence of the three organs with clearly defined and separate types of powers (or, in Seervai’s terms, this is what distinguishes the framing power, which is not subject to the separation of powers, from the amending power, which is; see Seervai, Vol. III, p. 3119). For example, the legislature clearly cannot pass a Constitutional amendment abolishing the judiciary. However, both these possibilities would be realized in the case of unlimited amending power. Therefore, such a construction of the Parliament’s amending power must be rejected. Thus – the argument goes – the allegation that the basic structure doctrine replaces parliamentary sovereignty with judicial supremacy simply holds no force. It is the Constitution which is sovereign and supreme, not any of the three wings of State. Undoubtedly, what the doctrine has done is to give the judiciary the last word on interpreting the Constitution. But that is all.

But now, consider a further difficulty. If the authority of the Constitution is ultimately derived from “We the People”, then surely “We the People” are allowed to change Our minds – including Our determination of what constitutes equal citizenship. Not only that, the Constitution itself provides the mechanism by which We the People can change Our minds – the supermajoritarian amendment procedure! Thus, the objection continues, if the Constitution is indeed the creation of We the People, what on earth justifies the judges in denying to the People the right to change Their minds, through the very procedure They wrote into the Constitution to do just that, even if it is to make mutable the principles They once considered immutable?

This is a difficult question, and clearly, if it cannot be answered, then the basic structure doctrine fundamentally lacks legitimacy. To answer it, we need to introduce, at this point, a new concept: that of dualist democracy, originated by Bruce Ackerman in his book, We the People.

It would be impossible to do justice to the richness and complexity of the Ackermanian theory in this short space: nonetheless – briefly – Ackerman argues that lawmaking occurs at different levels of public engagement and participation, with degrees of legitimacy accorded to each level depending upon the nature of participation. The reason, for Ackerman, why we have a representative democracy (as opposed to Athenian-style direct democracy) lies in the fact that we are both private citizens and private citizens; that is, we not only engage with the political process as citizens, through instances such as the vote, but an integral part of our lives is the private, non-political aspect. It is this private aspect that makes our lives wholesome, rich and worthwhile – indeed, there would be something distinctly incomplete about a life spent perennially engaged in politics. This, then, is what justifies representative democracy, which is nothing more than We the People delegating day-to-day political decision-making to their chosen representatives, leaving themselves free to pursue their private aims and goals, and construct their private lives.

Yet there are times when this changes. Times of great political upheaval, excitement and change, when there is great public mobilization over core issues, extensive public deliberation and debate, where what is at stake is the set of fundamental principles that structure the polity itself. In the context of American history, Ackerman identifies three such “moments”: the framing of the Constitution, the post-Civil War Reconstruction, when slavery was abolished, and the New Deal, when laissez faire capitalism was repudiated in favour of the regulatory state. For Ackerman, these periods are defined by a transformation of some of the most basic ideas that governed society, as well as the broad and deep public participation that shaped the transformation. This, then, is a higher level of lawmaking (hence, dualist democracy – dualist in that there is a difference between “ordinary lawmaking”, as undertaken by majoritarian legislatures in normal times, and “higher lawmaking”, that happens in rare moments of extensive public mobilization to debate issues of fundamental importance); and crucially, for Ackerman, the point of constitutional law (and, by extension, judicial review) is to ensure that the principles established during periods of higher lawmaking are protected from change by the majoritarian legislative process precisely because the circumstances of their framing lend them greater popular and democratic legitimacy than ordinary lawmaking.

We are now in a position to apply this argument to India. We have, of course, a parliamentary legislative procedure for ordinary times. We have a supermajoritarian amendment procedure – but, as the 98 amendments over the last 64 years demonstrate, while this is admittedly a higher form of lawmaking – it isn’t so by much (compare the 29 amendments to the American Constitution in 225-odd years). The Article 368 procedure itself is only slightly more onerous than regular lawmaking, in that it requires a two-thirds majority in each house, and some state consent in some cases.

But now consider, in comparison, the circumstances of the framing of the Constitution. Recall that it was the culmination of an independence movement that enjoyed an extraordinary broad amount of support and participation from all sections of society; the Constituent Assembly itself consisted of popular leaders of that independence movement, many of whom had served as elected representatives under the 1935 Government of India Act regime; and moreover, what was at stake was not just the transfer of power from a colonial government, but the very character of a newborn nation (see, e.g., the Constituent Assembly Debates). In short, the Ackermanian conditions for lawmaking at the highest level are here fulfilled (spoilt, in part, by the absence of a ratification process, no doubt, but for the purposes of argument, we can let that be for the moment).

And if that is the case, then we can easily understand why the most basic principles that were agreed upon – that India would be a republican democracy, governed by a written constitution, and founded upon the pillars of equality, fundamental freedoms to speak, associate and move, and secularism – these principles that now form part of the basic structure, can legitimately be preserved against both the ordinary legislative process, and the supermajoritarian amendment process that is only slightly less commonplace. What would be sufficient to change this? Another upheaval of a comparable degree to the freedom movement, one that has its animating goal changes as far-reaching, and draws upon extensive and deep public engagement. 

In this context, Indira Gandhi’s Emergency can be considered to be a failed constitutional moment (in Ackermanian terms). Not only did Mrs Gandhi proclaim a grave national emergency and an existential threat to the nation, but also, the changes she sought to bring about –  that is, complete subordination of basic rights to the whim of the parliament, the constitutionalization of bills of attainder, drastic reductions in the power of the judiciary and the strengthening of executive prerogative – much of this through the 42nd Amendment –  were an attempt at a fundamental transformation of the framers’ proposed system of governance (see Henry Hart’s take). Yet, the most far-reaching aspects of the proposed changes were struck down by the Court (first in Indira Nehru Gandhi v Raj Narain, and then in Minerva Mills v Union of India) on basic structure grounds; and We the People validated the Court’s stance by voting out Mrs Gandhi – both herself and her party – at the first general election after the revocation of the Emergency, one that was widely regarded as a referendum on the same; and the succeeding Janata Party undid the rest through the 44th Amendment. Had Mrs Gandhi, however, been returned victorious in the 1977 general election, surely that would have been seen as a vindication of her agenda – and a possible case for a transformative constitutional moment on par with the framing itself. And admittedly, we would now probably have had a very different Constitution, with no basic structure doctrine at all.

To sum up, then: the moment of the framing represents, in Ackermanian terms, an instance of “higher lawmaking”, one that possesses great political and democratic legitimacy because of the depth of public engagement and the transformative nature of the issues involved. It is therefore justified, then, for Courts to preserve the fundamental essentials of the framing from lower-level lawmaking procedures such as ordinary legislation and amendment, until We the People engage in higher lawmaking again. Indira Gandhi’s Emergency represents a failed constitutional moment, where We the People rejected her transformative proposals; we await the next attempt at doing so.