The Educational Disqualifications Case: A Round-Up

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

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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

(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)

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

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.

Basic Structure – II: The Argument from Democracy

Let us now consider some possible arguments in defense of the basic structure doctrine. I will commence with political and philosophical defenses – are there principles that justify substantive limitations upon parliament’s amending authority? In what follows, I list various potential principles. (While I do not necessarily agree with them, I will nonetheless try to state them in their strongest form.)

The most common argument against the doctrine is that it gives unelected judges the power to restrict the activity of an elected legislature, thus encroaching upon its activity, and violating the doctrine of separation of powers. Furthermore, it goes against democracy, majoritarianism and popular sovereignty, as democracy mandates that the final say on all issues concerning society (including a bill of rights that constrains the very actions of the majority) must be left to the majority of the people, acting through their elected representatives (see, e.g., R. Ramachandran, The Supreme Court and the Basic Structure Doctrine, in Supreme But Not Infallible, and his review of Professor Sudhir Krishnaswamy’s book here).

To this, four separate responses may be made: first, even in a democracy, there are certain decisions which, in principle, must not be left to the majority; secondly, in practice, the degree of representation and public support political parties in power enjoy in modern democracies is questionable; thirdly, the framing of the Preamble to the Constitution suggests that it is meant to resemble a social contract, where the people have the power to reserve certain rights to themselves; and fourthly, India follows a model of Constitutional sovereignty, which places limits upon ordinary legislative power.

Democracy and Majoritarianism: The Argument from Principle

 The core of the basic structure debate revolves around a dispute about the true meaning of “democracy.” Opponents of the doctrine claim that the doctrine is “undemocratic” on the ground that it places limitations on the powers of the political majority (acting through the legislature). The unarticulated premise of this argument is that democracy must necessarily equal the majority will. Therefore (the argument proceeds) a violation of the latter automatically means a violation of the former, and hence is undesirable. (It is crucial to note here that arguments such as equal political participation or promoting efficiency, are arguments about the ends served, and not features intrinsic to, majoritarianism.)

The counter-argument from democracy would have it that this argument misunderstands the true nature of democracy, as well as the purpose of the basic structure doctrine. If a particular conception of governance is to be defended as good and desirable, it must be shown that either that it possesses certain intrinsic values that we consider basic or fundamental, or that it serves or promotes such values and ends. It is clear that majoritarianism does not possess any intrinsic qualities of this nature (recall Isiah Berlin’s acute observation that oppression is oppression, whether it is imposed upon me by one person or by ninety-nine out of a hundred). Professor Dworkin therefore argues for redefining “democracy” to mean a system of government where all citizens are treated with “equal concern and respect” (because it is only under such a regime, which grants everyone equal concern and respect, that an individual can legitimately be treated as a joint-author of all laws, including those that go against one’s interest, and thus be expected to obey them). By using a concept of “moral membership in a community” (a person is a moral member when every community decision treats him with equal concern and respect, and this, in turn, happens when he is provided a voice in, a stake in, and an independence from, the collective), Dworkin demonstrates how the most popular arguments in favour of majoritarianism, i.e., it promotes liberty, equality and community feeling, are fundamentally misplaced. Majoritarian institutions are to be upheld as long as they serve the democratic objective of fulfilling moral membership for all individuals, and not simply by virtue of being majoritarian institutions. In most cases, majoritarian institutions will and do end up serving the purpose; however, what this argument does is to abandon unqualified support for majoritarianism, and abandon equating it with democracy (see Dworkin, Freedom’s Law, Preface). The difference, as described by Professor Freeman, is between a purely procedural view of democracy on the one hand, and a substantive view on the other, which, in addition to the principle of majoritarianism, also incorporates other values such as respect for individual rights, the rule of law etc. within the definition of democracy (since it is only these rights, when allied with the majoritarian process), that actually serve the goal of equal concern and respect.

Two important points may be raised now: First, certain questions of grave Constitutional importance often arise that pit the interests of the majority against the minority. Allied to this is the fact that most of the basic human rights are rights against the majority. In such a situation, allowing the majority (through Parliament) to be the ultimate arbiter would be tantamount to it judging its own cause, and deciding upon matters that it has a close and intimate interest in. This problem is clearly recognized by Professor Sathe, who points out that the basic structure doctrine is essentially the “ultimate counter-majoritarian” check upon democracy” (see Sathe, Judicial Activism in India). The argument above, of course, is different in that it defines democracy itself as separate from majoritarianism, but the basic point remains that it is axiomatic that the deciding authority must be of a non-majoritarian character and so, cannot be the Parliament.

Secondly, certain principles are by their very nature beyond the pale of majoritarian authority. These include the most basic individual rights against the State, e.g., the right to life, equality and the fundamental freedoms, and the right to freedom of conscience. These are matters to be governed by individual autonomy, central to how an individual decides to order and determine his own life, and cannot be subjected to external majoritarian authority – because to make even those rights subject to majoritarian control would destroy individual autonomy in a way that would not be consistent with according equal concern and respect to all. Professor Dworkin gives the classic example of an orchestra conductor. “An orchestra’s conductor can decide, for example, how the orchestra will interpret a particular piece: there must be a decision of that issue binding on all, and the conductor is the only one placed to make it… but it would plainly be [unjustified]… if the conductor tried to dictate not only how a violinist should play under his direction, but what standards of taste the violinist should try to cultivate”. (see Dworkin, Freedom’s Law, Preface) Once again therefore, a counter-majoritarian check is required to ensure that such rights are not encroached upon, whether by legislation through an ordinary majority, or a Constitutional amendment through a super-majority.

The argument is extended by Professor Marneffe, who points out that the test of violation of democracy must be one of impact. If, therefore, the Court protects only those fundamental and basic rights that are essential to democracy as we understand it, and leaves all other political decisions to the legislature, this would not be undemocratic in impact.          

A necessary question then arises: who determines the content of those basic principles and values that lie beyond the power of the majority? For reasons explained above, the power cannot lie with the Parliament. For the same reasons, it cannot lie with the executive. Therefore, within the framework of separation of powers, the judiciary must be the authority within which this power is vested. To this argument by default, it may be added out of the three wings of State, the judiciary is undoubtedly and by far, the weakest. Unlike the legislature and the executive, the judiciary cannot take any positive action, it holds neither the “sword, nor the purse strings” (see Hamilton in Federalist 78), and the maximum impact it can have upon the society is negligible, as compared to the other wings. Therefore, it may be argued that ex majore cautela, the judiciary is the ideal organ within which to vest the highest power of the State (of overruling the decisions of the popular majority), as it has the least ability to abuse that power and all the vast implications that it carries. While in Kesavananda, the judges in the majority conceded that the “possibility of abuse” of the amendment power had no bearing upon determining its scope and the limitations – it nonetheless seems obvious that when deciding the question of whether the highest form of State power ought to be limited, and if so, the nature of such limitation, the possibility of abuse and the extent to which such abuse can be taken are crucial and relevant considerations.

In summation therefore, the strongest argument against the basic structure doctrine is premised upon the flawed assumptions that democracy equals majoritarianism, and that the power of the majority in a democratic society must be absolute and unfettered. It is flawed because on a substantive conception of democracy, legislative procedures embodying bare majority rule are not identifiable with democracy; instead, they are only a part of the institutional framework of a democratic regime. Furthermore, majoritarian power cannot be unrestricted, as this would entail sacrificing those rights that, as a matter of principle are morally independent, to the whims of a majority. Therefore, once the majoritarian premise is dissolved, the associated objection, i.e. the rhetoric against “unelected judges” sitting in judgment over the choices of the majority is also found to be without foundation. Both by default and by virtue of strong independent reasons, the judiciary is the correct and only authority to legitimately enforce the basic structure doctrine within the framework of separation of powers.

It must also be noted that this entire argument not only justifies the basic structure doctrine, but also provides a method of identifying the basic features. This issue, and the seeming conflict it brings up with the way the Supreme Court has actually gone about identifying the basic features, will be dealt with subsequently.

Is there an Interpretive Methodology for Construing Colonial-era Statutes?

Much of the focus on Naz Foundation has centred upon how S. 377 of the IPC (the impugned provision that outlaws homosexuality) is a “colonial-era law“. That much is true. It is also true that, assuming the values of our colonial government were fundamentally different from the values that animate our democratically elected legislature, there is a strong case for legislatively repealing S. 377. However, what does the colonial nature of legislation imply for the Courts that are tasked with interpreting it, or adjudicating upon its constitutional validity? A change in values cannot, in itself, be a guiding principle, because surely the best judgment of societal values – at least in theory – will be made by the institution that is most accountable to the people. There is, therefore, a problem of institutional competence in the Court substituting its analysis of public values for the legislature.

At the same time, however, there is an important question of process to consider here. What is it that we value about democracy, and why do we consider democratic decisions presumptively legitimate? It surely cannot be simply because they are taken by a majority vote; as Isaiah Berlin rightly pointed out in his seminal Two Concepts of Liberty,  there is no real difference in being oppressed by a minority and being identically oppressed by a majority. Democratic theory scholars, therefore, focus on the manner in which decisions are arrived at. Dworkin, for instance, argues  that a functioning democracy must accord equal concern and respect to all members of the polity by ensuring that they have a voice in, a stake in, and an independence from, collective decisions (see the Preface to Dworkin’s Freedom’s Law). In other words, what is key here is participation: if I am allowed to participate in the decision-making process in a way that my interests and autonomy are given appropriate respect, then I can reasonably accept the final decision as being, in a sense, my own decision (and therefore binding upon me), even though I might substantively disagree with it.

What this implies is that the legitimacy we accord to democratic decisions is conditional – conditional upon substantive participation by the members of the polity. In a famous book called Democracy and Distrust, Harvard scholar John Hart Ely made this the central idea of his theory of judicial review. Ely recognised the centrality of process to the democratic legitimacy – and he understood that the democratic process often functions – in real life – in a way that is less than perfect. A process of periodic, nationwide elections could end up ensuring the systematic exclusion of “discrete and insular minorities” (a phrase that has its genesis in Footnote Four of the US Supreme Court’s famous Carolene Products case). And this is where the Court would step in – judicial review was consistent with democracy insofar as the Court’s decisions voiding or otherwise interfering with legislative choices played essentially a “representation reinforcing” role. Ely’s theory of democracy, therefore, is essentially a representative-participatory theory that combines majoritarianism with judicial protection of minority rights on the basis of their exclusion from meaningful participation.

The shape of the argument will now be evident: colonial-era statutes, being passed by the dominion legislature, suffer from a fundamental lack of democratic legitimacy, being the decisions of a distinctly unrepresentative process. But here’s the catch: the Indian Constitution has an express savings clause for dealing with precisely this issue. According to Article 372(1):

“… all the laws in force in the territory of India immediately before the commencement of this Constitution… shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

So even if the democratic legitimacy of colonial laws was suspect, the Constitution itself, the ultimate source of law, validates them through inaction: parliament confers democratic legitimacy on colonial legislation by omitting to repeal them. This makes eminently good sense both as a matter of principle and pragmatically: as a matter of principle, legislative imprimatur can be given both by commission and by omission (as long as the omission is intentional, as it is here); and practically,  it would have been an administrative nightmare in 1947 to wipe out all laws and start from a clean slate.

So that seems to be the end of the matter. Article 372 indicates that colonial-era legislation is to be treated no different from ordinary legislation merely by reason of its origin. Yet, is it? Let us consider the following illustration:

Griswold v Connecticut and Roe v Wade are two famous American decisions that, by locating an “interstitial” constitutional right to privacy not found in the express words of the American Constitution, struck down laws prohibiting contraceptives and abortion respectively. Critics and defenders of the decision have divided over whether a right to abortion as a facet of the right to privacy can actually be extracted out of the text and structure of the Constitution. However, in his book, America’s Unwritten Constitution, Professor Akhil Amar offers a different argument: he points out that the laws at issue in Griswold and in Roe were both passed before the Nineteenth Amendment to the United States Constitution, that first accorded the right to vote to women, in 1920; in other words, both legislations were passed at a time when women could not vote. The Nineteenth Amendment recognised that not allowing women to vote was fundamentally illegitimate, and had always been so. Therefore, by virtue of this reason, laws before 1920 were undemocratic because unrepresentative; and in true John Hart Ely-esque fashion, the Court’s decisions in Griswold and Roe can be seen as protecting the interests of those who were blocked from participating in the decision-making process that gave rise to the impugned laws. 

But here’s the problem: by this logic, every law – and not just Connecticut’s anti-contraceptive law and Texas’ abortion statute at issue in Griswold and Roe – before the Nineteenth Amendment is illegitimate. Yet what Article 372 of the Indian Constitution makes explicit, is implicit more generally: in the ninety-three years after the Nineteenth Amendment, if certain laws haven’t been repealed, surely that means that whatever their democratic status before, they have been impliedly accepted by a democratic, participatory legislature’s failure to repeal them.

Yet let us now make a distinction between two kinds of law: laws that, while based on an exclusionary decision-making process, have little or nothing to do with the groups that have been excluded (e.g., contract legislation); and laws that directly affect the interests of excluded groups (e.g., an abortion statute). The implication-by-failure-to-repeal argument works well for the first kind of laws; but there are at least two reasons to question it for the second: first, that by reason of neutrality, the first kind would have come out much the same regardless of exclusion; and once the exclusion issues are corrected, because these laws are of general application, repealing them if they are generally inconvenient would not be too difficult. For the second kind of laws, which, because of their particularity, would be affecting a specific group, it is the group would then have to make the move to have them repealed. This explains why – even in the absence of Article 372 – we might consider the Indian Contract Act presumptively constitutional after 1947 – arguably, the unrepresentative nature of the colonial legislature did not significantly affect the law, and in any event, it would be very easy to have it repealed if it was no longer in conformity with the democratic will. These conditions are absent for the second kind of – interest-affecting – laws.

And secondly – and much more importantly –  if the second type was allowed to stand, then – in the words of Ely – you are essentially imposing a double-burden upon the once-excluded group (see p. 169, Democracy and Distrust): not only did they have no say in the framing of the original legislation that touched upon their interest, but now the burden is being placed upon them to drudge up the necessary parliamentary support to have them repealed. Not only is this more difficult because these laws are of a specific-interest type, but purely as a matter of fairness: surely it is far more equitable to reverse the onus: it should be for those who wish to maintain the legislation after the representation issued have been resolved, who should have to make the effort to do so. Here is Ely on point:

“To put on the group affected the burden of using its recently unblocked access to get the offending laws repealed would be to place in their path an additional hurdle that the rest of us do not have to content with in order to protect ourselves – hardly an appropriate response to the realisation that they have been unfairly blocked in the past.”

We now have strong reasons of democracy to question the presumptive constitutionality of pre-1947 laws of the second type; there is no doubt that S. 377 falls within this category, because it fundamentally affects the interests of a specific group (homosexuals), and was passed without their representation (some would argue that homosexuals are even now a discrete and insular minority, in Ely’s terms, but we need not go into that at the moment). Does Article 372 stand in the way? No, it doesn’t – because we are not arguing that S. 377 is impliedly repealed. What we are arguing, however, is that S. 377 should not be accorded the standard protection of the presumption of constitutionality – because for all the reasons above, the presuppositions that justify that presumption are conspicuously absent.

Let us summarise the argument in the following steps:

a) S. 377 is a piece of legislation that was passed without representation from the constituency that it negatively impacts, i.e., homosexuals; therefore, it cannot be treated as presumptively constitutional

b) After the entry into force of the Constitution, let us assume that homosexuals were fully represented; nonetheless, to argue that S. 377 became constitutional by virtue of the (now representative) legislature’s failure to repeal it imposes an unjust burden upon the previously unrepresented homosexuals

c) Article 372 provides a barrier to treating the law as void, but provides no barrier to removing the presumption of constitutionality

This, I would submit, is how the colonial-era nature of S. 377 is constitutionally relevant to the Court’s enquiry in Naz; and further, how the Court should – as a matter of principle – approach other legislation in which the law in question is a pre-1947 law.

PUCL v Union of India: The Supreme Court and Negative Voting

(This is an immediate response to the judgment; I hope to have a couple of guest posts on this in the coming week)

Yesterday, the Supreme Court, in PUCL v. Union of India, upheld the constitutional right of citizens to cast a negative vote in elections. The exact political ramifications of this judgment will probably become clear once the Election Commission comes up with the modalities of its implementation; from a constitutional point of view, this judgment is important as it further underscores the centrality of Article 19(1)(a) to election disputes.

In PUCL v. Union of India, the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. Both sides agreed on the fact that thecombined effect of these rules was that persons who did not vote in elections were recorded (by the presiding officer) as having not voted. The petitioners argued that this was a violation of the right to secret balloting, protected by Articles 19(1)(a) and 21 of the Constitution.

Relying upon Kuldip Nayar v. Union of India, the State raised a preliminary objection on the ground that since voting was not a fundamental or constitutional right, but only a “statutory right” brought into existence by the Representation of Peoples Act, this wasn’t an Article 32 fundamental rights petition in the first place. Rejecting this contention, the Court distinguished between the “right to vote” and the “freedom of voting as a species of the freedom of expression“. [Paragraph 19] This is what explained the Court’s earlier decisions in PUCL v. Union of India and Association for Democratic Reforms v. Union of India, where  the right to know the antecedents of politicians had been brought within the ambit of Article 19(1)(a) as part of the “right to know”. [Paragraph 20]

The Court then found that in a system of direct elections, secrecy was essential in order to ensure the effectiveness of the vote – that is, elections could not be free and fair unless secrecy was maintained (that much is logical; naturally, the only way of preventing bribery, coercion and post-election reprisals is secrecy).  Further, since the freedom to vote naturally included the freedom not to vote, it would be arbitrary to extend secrecy to one and not the other. [Paragraph 31]  It buttressed its argument by invoking Indira Nehru Gandhi v. Raj Narain and Kihoto Hollohan v. Zachilhu for the unexceptionable proposition that an effective democracy functioning through periodic fair and free elections is part of the basic structure of the Constitution. [Paragraph 45] In addition, the act of not voting was as much a positive exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection [Paragraph 49].  The Court therefore directed the Election Commission to introduce a “None of the Above [NOTA]” option into the Electronic Voting Machines. [Paragraph 61]

The judgment of the Court is important, as it clarifies the constitutional status of voting. What does it mean to say that the right to vote is only statutory, but the act of voting is an exercise of free speech protected by Article 19(1)(a)? Only this: the right to vote is statutory insofar as the modalities of voting are regulated by statute (the Representation of Peoples Act); questions of who can vote, when and in what manner, what restrictions and rules political parties must abide by, and so on – these are matters undoubtedly determined by statute, and subject to the control of the legislature. The act of voting, however, is – at least in theory – the most important act of expression through which the citizen participates in a representative democracy. So while the right to vote remains only a statutory right, parliament nonetheless may not erect any formal or substantial barriers that render voting ineffective or nugatory. Consider the following hypothetical: parliament tomorrow repeals the Representation of Peoples Act, and substitutes it… with nothing (effectively creating itself as a permanent oligarchy). Can one seriously suggest that that act would be constitutional? It is in this sense that the freedom to vote is – in its abstract sense – a constitutional and a fundamental right, the contours and lineations of which are to be worked out by parliament through statute.

This conclusion follows inexorably from Article 19(1)(a) and from the structure of the Constitution itself. On this blog, we have often discussed how, in a series of cases, the Court has located the philosophy of Indian free speech in a functioning liberal democracy where speech plays the important role of raising political awareness, communicating views to government, and so on; would this mean anything if the basic mechanism that defines a representative democracy – periodic change in government through elections – was compromised or made ineffective (for a similar argument deriving the right to free speech from the right to petition government for grievances, see Charles Black, Structure and Relationship in Constitutional Law)? In addition, Part XV  of the Constitution is devoted entirely to the conduct of elections, including non-discrimination rules (Article 325); and Article 326 expressly states that elections to the House and the Assemblies are to be on the basis of adult suffrage; what would be the point of all this if the government was free to abolish elections altogether? And lastly, representative democracy – as discussed above – is a basic feature of the Constitution; potentially, the government might someday come up with an alternative way of doing representative democracy that dispenses with elections. Until that time, however, effective elections – and consequently, an effective vote – remain a constitutional right and a fundamental right.

It is submitted, therefore, that the Supreme Court’s decision is correct, and that it’s analysis of the relationship between elections, the right to vote, and Article 19(1)(a) is substantially correct as well. One minor objection might be made: it was enough for the Court to have said – as, in substance, it did – that the freedom envisioned by Article 19(1)(a) is the freedom to have a say in government through the mechanism of the vote, and that naturally must include the option to not vote as well; but it was a mistake to further ground the right by referring to potential negative consequences of revealed identity. It is easy enough to imagine how, if one’s vote is revealed after an election, the winning (or losing) party might exact reprisals – which, in turn, will affect how one votes in the election. Yet it is difficult to see how by not voting at all (for anyone), and having that fact as public knowledge, would lead to repression or reprisal. That remains, however, a minor quibble.

And lastly, as a closing aside, it is worthwhile to note while the challenge was made under Articles 19(1)(a) and 21, the final holding turned only upon Article 19(1)(a) [see paragraph 61]. In an age where it is often said that Article 21 has been transformed into a bottomless receptacle for the judiciary to pour in its own ideas of the right and the good, the Court’s conscious resistance to Article 21’s siren call is to be commended.