Tag Archives: elections

Of Missed Opportunities and Unproven Assumptions: The Supreme Court’s Election Judgment

On Monday, a seven-judge bench of the Supreme Court split 4 – 3 on the interpretation of Section 123(3) of the Representation of the People Act. Section 123(3) defines a “corrupt electoral practice” as:

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

The interpretive question before the Court was whether the underlined “his” qualified only the candidate (and his agent etc), or whether it qualified the person to whom the appeal was addressed; in other words, whether “his religion…” referred to the religion of the candidate or the religion of the elector. Four judges (“the Majority”) held that “his” was to be interpreted broadly, and referred to the religion of the candidate, his agent, or any other person who, with the candidate or his agent’s consent, was making the “appeal” for votes, as well as the religion of the elector. Justice Lokur wrote for himself and for Justice Nageswara Rao, while Justice Bobde and Chief Justice Thakur wrote concurring opinions.

Justice Chandrachud wrote the dissent, for himself and on behalf of Justices Lalit and Goel. He held that the word “his” was to be construed narrowly, as applying only to the speaker (i.e., the person who made the appeal for votes, whether the candidate or his agent, or any other person with their consent).

In my view, the Majority holding is open to doubt, both linguistically and philosophically. Before that, however, note that this judgment is important not only for what it holds, but for what it refuses to hold; in particular, on the relationship between elections and the freedom of expression.

Free Speech, Elections, and the Strange Case of Jamuna Prasad

One of the arguments raised by Shyam Divan, senior counsel for the Petitioners, was that a broad reading of Section 123(3) ought to be avoided, since it would run afoul of Article 19(1)(a) of the Constitution (freedom of speech and expression). Justice Lokur’s majority opinion addressed this contention at the end, and cursorily. Justice Lokur held:

“Although it was submitted that a broad interpretation given to sub-section (3) of Section 123 of the Act might make it unconstitutional, no serious submission was made in this regard. A similar submission regarding the constitutional validity of Section 123(5) of the Act was dealt with rather dismissively by the Constitution Bench in Jamuna Prasad Mukhariya v Lachhi Ram when the sweep of the corrupt practice on the ground of religion was rather broad.”

The Court then cited the relevant paragraph from Jamuna Prasad, and concluded: “We need say nothing more on the subject.”

Let us, however, look a little more closely at what Jamuna Prasad – a five-judge bench case from 1954 – actually said:

“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

There are at least five reasons why the argument in Jamuna Prasad is not only erroneous, but manifestly erroneous. FirstJamuna Prasad misconstrues what is at stake. By characterising Section 123 has “prescribing conditions” for entering Parliament, it ignores the fact that Section 123 regulates campaign speech, which is an example par excellence of political speech, and political speech, in turn, is at the heart of the constitutional guarantee of freedom of speech and expression.

Secondly, Jamuna Prasad’s logic reduces freedom of speech to a formality, by allowing the State to restrict large swathes of speech under the guise of “prescribing conditions”; tomorrow, for instance, if the State was to ban all speaking in public places, Jamuna Prasad would justify it on the basis that it merely prescribes conditions for entering public places. The extreme end of this logic would justify any penal prohibition on speech by holding that it merely prescribes a condition for staying out of jail.

ThirdlyJamuna Prasad’s logic was rejected five years later in In Re Kerala Education Bill, which laid down the doctrine of unconstitutional conditions: even if an individual has there is no constitutional right to “x” – and even if “x” is only a privilege – the State cannot make his access to “x” conditional upon his giving up a fundamental right. Concretely, the State cannot tell me – without further constitutional justification – that I am allowed to stand for parliament only if I give up my fundamental right to freedom of speech and expression.

FourthlyJamnua Prasad’s logic was expressly rejected by two Constitution Benches in the 1960s – Kameshwar Prasad and O.K. Ghosh – in the context of the workplace. In both these cases, laws restricting the freedom of association at the workplace were challenged, and in both cases, they were struck down. The State argued that the laws were not infringing anyone’s fundamental rights, since they were only conditions for joining government employment. A person was free not to join government employment, and associate with whomever she pleased. The Court rightly made short shrift of this argument, holding that a person did not give up her fundamental rights after joining government employment. Similarly, a person does not give up their right to freedom of speech and expression on deciding to contest an election.

Fifthly, whatever the status of the right to contest elections at the time of Jamuna Prasad, it is now well-settled in a number of cases that the right to contest elections is more than a statutory right; it is a “constitutional right” (what, precisely, this means has not yet been clarified); and furthermore, the “freedom” to vote is an aspect of the freedom of speech and expression under Article 19(1)(a), a fundamental right. It has also been held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to receive information. Consequently, at the very least, from the perspective of the voters, Section 123 implicates the freedom of speech and expression.

Consequently, there were strong reasons for the Court to reconsider Jamuna Prasad, and rethink the relationship between freedom of speech and elections. Its failure to do so – and to continue to endorse the line of cases that counterintuitively places free speech and elections in isolated, hermetically sealed spheres, is disappointing.

The Grammar of Section 123(3)

Let us return to Section 123(3). Paring it back to its essentials, it states: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.” 

At the outset, there is one way in which the Majority is clearly incorrect. The word “his” cannot qualify both the speaker and the audience (the electors). When the section reads “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion…“, the placement of the word “his”, as a matter of grammar, requires it to qualify only one potential subject.

Once that is clear, it becomes even more obvious that the majority’s interpretation is unsustainable as a matter of language, and no amount of purposive interpretation can save it. This is because Section 123(3) contains only one subject: the speaker (whether it is the candidate, his agent, or any person with their consent). The Section does not say “the appeal by a candidate… to any person to vote or refrain from voting for any person on the ground of his religion…” If that was the language of the statute, then, linguistically, it would be equally plausible for “his” to qualify “to any person” (i.e., the elector), or to qualify “the candidate”. We would then have to look to the purpose of the statute to determine which of the two was the correct interpretation. However, when we have the sentence “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion“, there is only one plausible interpretation: “his religion” refers to the religion of “any person”, who is to be voted (or not voted) for.

In my respectful submission, therefore, the matter should have ended here. The language of Section 123(3) could not sustain the meaning that the Majority placed upon it.  What Justice Lokur did then, however, was to marshal historical evidence in support of his broad interpretation (interestingly, in his dissenting opinion, Justice Chandrachud used the same historical material to arrive at the opposite conclusion). According to him, the legislative policy was to preserve the “purity” of elections by prohibiting appeals to “divisive” and “fissiparous” tendencies; religion, caste, language, and community were examples par excellence of such tendencies. If this was the goal of the statute, then, according to Justice Lokur, it made no sense to limit the reach of the statute only to the religion (etc) of the candidates; rather, the intention clearly was to eradicate appeals of these kinds from the electoral process as a whole.

If one accepts Justice Lokur’s reading of the legislative history behind the provision, then one will probably accept the broader reading of Section 123. However, as pointed out above, Justice Lokur’s reliance on draft bills and statements on the floor of the house was countered by Justice Chandrachud, who pointed to categorical statements by the drafters, to the effect that the kinds of statements they were concerned about were the “I am a Muslim, vote for me” kind. If the legislative history is ambiguous, and does not admit of a clear answer, then there are two huge assumptions in Justice Lokur’s argument. The first is that “divisiveness” and elections are antithetical to each other. This, however, is a deeply counter-intuitive proposition. Elections are centrally about divisiveness: candidates seek to set themselves apart from their rivals by putting themselves forward as best-placed to protect the interests of their constituents. What, precisely, is illegitimate about a candidate promising to protect his constituents’ religious or linguistic interests? Or, to take another kind of example, class divisions can be every bit as divisive, and potentially violent, as religious divisions; in fact, Section 123(3A) prohibits promoting enmity “between classes”. Divisiveness, therefore, seems to be an incomplete justification of Section 123(3).

Secondly, Justice Lokur’s argument assumes that from the point of view of the electoral process, there is no difference between what an election candidate can legally do, and how a voter ought to exercise their vote. It is on the basis of this assumption that he bases his argument that it would make little sense to apply Section 123(3) only to candidates. In doing so, however, he does not engage with the important argument made by Justice Chandrachud in dissent: that there is a non-trivial distinction between a candidate and his electors, since the candidate, in a democracy, is meant to represent his constituency as a whole. The candidate cannot directly claim, therefore, that he will represent only a subset of his constituency.  There is, however, no similar constraint upon the voter. If this distinction holds (and I admit that it is tenuous, given that candidates are always appealing to specific sectors in their constituencies), then limiting the reach of Section 123(3) to candidates makes sense.

Lastly, Thakur CJI, in his concurring opinion, adds to Justice Lokur’s argument by making the claim that Indian secularism requires religion to be excluded entirely from the secular sphere. I respectfully disagree. The Court’s own jurisprudence suggests the contrary: at the heart of its “essential religious practices” test under Article 25 jurisprudence is judicial intervention into the tenets of religion, and judicial selection of which of those tenets constitute “essential practices”. There are other examples, but this is enough to demonstrate that the categorical statement excluding religion from the secular sphere needs further argument before it is to be accepted.

(I shall be engaging upon a more elaborate defence of Justice Chandrachud’s dissent elsewhere).

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Paragraph 85 of Justice Chelameshwar’s Dissenting Opinion in the NJAC Case

While re-reading Justice Chelameshwar’s dissenting opinion in the NJAC Judgment, I just came across – what seems to me to be – a rather significant observation. In paragraph 85, Justice Chelameshwar writes:

“Article 326 prescribes that election to Lok Sabha and the Legislative Assemblies shall be on the basis of adult suffrage. One of the components is that the prescription of the minimum age limit of 18 years. Undoubtedly, the right created under Article 326 in favour of citizens of India to participate in the election process of the Lok Sabha and the Legislative Assemblies is an integral part (for the sake of convenience, I call it an ELEMENT) of the basic feature i.e. democracy. However, for some valid reasons, if the Parliament were to amend Article 326 fixing a higher minimum age limit, it is doubtful whether such an amendment would be abrogative of the basic feature of democracy thereby resulting in the destruction of the basic structure of the Constitution. It is worthwhile remembering that the minimum age of 18 years occurring under Article 326 as on today came up by way of the Constitution (Sixty-first Amendment) Act, 1988. Prior to the amendment, the minimum age limit was 21 years.”

The observation is significant because Justice Chelameshwar is one of the two judges hearing the constitutional challenge to the Haryana Panchayati Raj Act, which mandates educational, property and debt-based restrictions upon running for Panchayat office. In this paragraph, there are two important points. The first is the admission that the right to participation in the electoral process (which would include both voting and standing for election) is part of the basic structure, despite not being an express “fundamental right” under Part III (an omission which has done significant damage to civil rights over the years). This would mean that restrictions upon participation in the electoral process must can only be justified through very strong reasons, and in a way that the core of the basic feature – democracy – is not damaged (using the “width and identity” test propouned in Nagaraj’s Case for deciding a basic structure violation).

Secondly – and even more significantly – I suggest that the restriction which Justice Chelameshwar deems to be acceptable, throws significant light upon that which is not acceptable. The restriction he talks about is an age barrier – whether 18 or 21. To sharpen the issue, let’s take a hypothetical: a mandatory minimum age for the consumption of alcohol, which is found in all jurisdictions (or an age of consent). Let us say that we are agreed that there has to be some minimum age barrier for alcohol consumption; the principle behind it is that the possible deleterious consequences of alcohol consumption requires needs to attain a certain degree of physical and mental maturity before one is allowed to consume alcohol. We may disagree over what that minimum age is – perhaps you may think that it should be 16, and I may think that it should be 18. But we do agree that there’s no bright line test for physical and mental maturity. Any line that we set, whether 16 or 18, will be underdetermined. It will end up excluding some people who would be physically and mentally mature enough, and including some people who aren’t. So whether the government ends up making it 16 or 18, we can’t really claim that it is an irrational classification, because the very nature of the process requires a there to be a rough estimate (age), which will not map exactly upon the rationale for the classification (maturity) – but it is the best that we have.

If we code this in Article 14 language, the intelligible differentia is age (our bright line); the governmental purpose is protecting people not in a position to make responsible choices from self-harm (legitimate, as everyone would agree); the rational nexus is a rough link between age and maturity (we agree that there is a rough connection, and also that it is impossible to be more precise).

But now compare this with a general restriction upon the sale of alcohol, as passed by some States, which also has an exemption for 5-Star establishments.  This is an entirely different case. Here the law implies that poorer people, who do not frequent 5-Star establishments, have less of an ability to control themselves on consumption of alcohol. In other words, the basic logic is the same – government acts to protect people who cannot make responsible choices from self-harm – but extends its classification to equate socio-economic status with perpetual minority, or the inability to make a responsible choice (a Kerala High Court decision upholding a liquor ban on these lines was upheld by the High Court, and has presently been stayed on appeal).

Let us now come back to voting and participating in elections. An age bar is exactly akin to an age bar on alcohol consumption. The basic logic is the same: the intelligible differentia is the bright line of age. The purpose is to maintain the integrity of the electoral process, since only people who have attained a certain degree of mental maturity are expected to make a responsible choice about who will govern them, or to actually carry on governance (this also explains why unsoundness of mind is another disqualification). The rational nexus is that age bears a rough relationship with maturity, and that greater precision is impossible.

Educational, property and debt disqualifications, on the other hand, are exactly like a liquor ban that exempts 5-Star establishment: it places a group of people in a position of perpetual minority, deeming their class or socio-economic status to disqualify them from acting as responsible participants in the process of governance (notice that the restriction operates upon voters (by circumscribing their range of choices) as well as candidates).

In stating that participation in elections is part of the basic structure, and that reasonable regulations can be imposed upon it, such as age restrictions, Justice Chelameshwar is entirely correct. The basis of the regulation is not in dispute, and the impossibility of an exact fit is not in dispute. Neither of those two conditions are met in the Panchayati Raj Act, and more importantly, if participation in elections is part of the basic structure, then the Government bears the burden of showing that essentially, the Panchayati Raj Act is akin to an age restriction. Consequently, Justice Chelameshwar should now extend his own logic, and strike it down.

(In the next – and my last post on the subject – I will argue that in any event, the Panchayati Raj Act should be held to a higher standard of scrutiny under Article 14 than mere “rational review”, and that for independent reasons, the affirmative burden should be on the government)

 

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Election Disqualifications and the Constituent Assembly Debates

On this blog, I – as well as guest essayists – have written extensively about Rajasthan and Haryana’s moves to impose educational and other restrictions upon the right to contest Panchayati Raj elections. One way or another, this issue will be resolved next week, when a two-judge bench of the Supreme Court decides the constitutional validity of Haryana’s Panchayati Raj Act (the operation of the Act has been stayed in the meantime). Recall that the Haryana Act (as amended) disqualifies people from contesting Panchayat elections if they haven’t been educated beyond Class VIII (the bar is lower for certain constituencies), if they do not have a functional toilet in their house, and if they owe arrears of electricity bills, agricultural cooperative loans, etc. Previously on this blog, we have argued that such provisions are unconstitutional on the grounds of Article 14 (equal protection of laws), 15(1) (documented disparate impact upon women), and 19(1)(a) (the freedom to vote being part of the freedom of expression). In this essay, I want to explore the framers’ ideas about suffrage, and how educational and property-based disabilities are inconsistent with those ideas.

Relying upon the Constituent Assembly Debates to advance an argument against electoral disabilities is a perilous enterprise. This is for two reasons. First, the Constitution itself seems to leave the matter of electoral qualifications to the statute. Article 84, which deals with eligibility for membership of Parliament, requires a candidate to be a citizen of India, at least 25 or 30 years 0f age (depending upon the House), and possessing “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.” Article 102 disqualifies an individual from membership of either House if he holds a governmental office of profit, is of unsound mind, is an undischarged solvent, is a foreign citizen, or “if he is so disqualified by or under any law made by Parliament.” Part IX of the Constitution, which contains the provisions for Panchayati Raj, makes no substantial departure from this position. Article 243F states that a person may be disqualified from being chosen as a member of the Panchayat if “he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned… [or] if he is so disqualified by or under any law made by the Legislature of the State.” A combined reading of all these provisions suggests that it is open to the legislature to introduce disqualifications through legislation (such as the Representation of the People Act).

Secondly, there is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment made by K.T. Shah, that literacy requirements be incorporated into the Constitution, Ambedkar replied that “I think that is a matter which might as well be left to the Legislatures. If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it.” This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given to Parliament under the omnibus clauses of (what became) Articles 84 and 102, included the power to prescribe literacy qualifications. 

I will argue, however, that the overall tenor of the Constituent Assembly Debates makes it clear that educational requirements go against the concept of suffrage and democracy that the framers meant to write into the Constitution. As Dworkin has correctly pointed out, there might often be a clash between the framers’ intentions about the words they were using, and what they intended the words would do – in other words, between the concepts that they laid down in the Constitution, and the concrete conceptions that they thought were the correct interpretation of those concepts. I will attempt to show that Ambedkar’s conception of suffrage and political candidature that is reflected in his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.

Let me foreground this discussion by drawing two important distinctions about the electoral process. First: historically, voting (and concomitantly, standing for elected office) has been considered to be either a privilege (i.e., a benefit extended to you by the State in return for some service, such as fighting in the army, paying tax etc.), or a right. Secondly: the purpose of an election can either be that it is expected to return the best (or most competent) candidate to power, or it can be that the person chosen by the electors is returned to power.

These distinction are important because of the following reasons. If voting/standing for office is a mere privilege, then obviously there cannot be any antecedent claim if the legislature decided to take it away by passing a law to that effect. On this interpretation, the omnibus clauses in Articles 84 and 102 provide a carte blanche to the legislature to impose whatever disqualifications it chooses to. If, on the other hand, voting is a right, then the discretion of the lawmaker to take it away must accordingly be curbed: a law taking away a right has to pass a higher threshold of justification. Secondly, if the purpose of the election is to select the most competent candidate, then conceivably, the legislature may impose a priori disqualifications on the basis that these qualifications create a preliminary threshold of competence, ensuring that people who fall below this threshold aren’t even eligible to participate in the process (whether as electors, or as candidates). In fact, this is precisely the justification that Rajasthan and Haryana have used in defence of their laws: Rajasthan drew a link between education and accountability, for instance. On the other hand, if the purpose of suffrage is to give effect to the choice of the people, then there is no justification for limiting that choice on the assumption that by allowing everyone to contest, there is a possibility of the wrong, or less qualified candidates, being chosen.

With this in mind, let us return to the Constituent Assembly Debates. The first important thing to note is that there was a significant dispute in the Assembly over whether or not to enshrine the principle of universal suffrage into the Constitution. In his proposed amendment, H.V. Kamath noted the extent of illiteracy in the country and the dangers it presented, and expressed regret that the franchise itself had not been restricted on grounds of literacy. His amendment – which Ambedkar rejected in the quotation abstracted above – was a second-best option aimed at limiting the damage wrought by universal suffrage. For Alladi Krishnaswamy Ayyar, on the other hand, this was one of the crowning achievements of the Constitution. He noted:

“More than any other provision in the Constitution. I should think the boldest step taken by this Assembly is in the matter of universal adult suffrage with a belief in the common man and in his power to shape the future of the country.”

Subsequently, during the final debates on 23rd November 1949, he observed that “in spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule and in the full belief that the introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life, the comfort and the decent living of the common man. The principle of adult suffrage was adopted in no lighthearted mood but with the full realisation of its implications. If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… This Assembly deserves to be congratulated on adopting the principle of adult suffrage and it may be stated that never before in the history of the world has such an experiment been so boldly undertaken.”

That same day, R.V. Dhulekar also stated that “a very great achievement is adult suffrage. Every person who is twenty-one years of age, who does not possess any of the disqualifications enumerated in the Constitution, has an opportunity of rising to the Presidentship, the highest honour that this country can give. And that is a great thing.” Soon after, Frank Anthony decried what the Assembly had done, observing that “I am one of those who can only express the very sincere hope that when the next elections are fought or the elections after that and with an electorate which will be predominantly illiterate, with an electorate which will be predominantly unaware of exercising the franchise on a basis of being able to analyse political issues in a rational way, that this electorate will not be stampeded by empty slogans by meretricious shibboleths into chasing political chimeras which will not only lead to chaos but to the very destruction of the democracy which we have chosen to give them.”

What these exchanges reveals is that there was a common understanding that the Constitution had conferred universal suffrage (and, at least for Dhulekar, by extension, the right to stand for elections), both among its supporters and its opponents. As the excerpts show, opponents feared that an illiterate populace would fail to exercise its choice in the “correct” way; supporters relied upon the basic idea that democratic legitimacy is founded upon popular sanction. But whether supporter or opponent, there was consensus over what the Constitution actually said. This was reflected finally in what are now Articles 325 and 326 of the Constitution. Article 326 states that “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election…” Article 325, by way of abundant caution, states that “no person shall be ineligible for inclusion in any such [electoral] roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”

The phrase “shall be entitled” in Article 326 answers our first question: suffrage, under the Constitution, is a question of right, not of privilege. And the rejection of the arguments for literacy requirements along with their underlying bases as potential disqualifications (the language of Article 326 is exhaustive) answers the second question: the vision of democracy is one based not on ensuring the most “competent” candidate wins (by whatever a priori definition of “competence”), but on giving effect to the people’s choice. Obviously, prior screening out of candidates violates that principle.

But what of Articles 84 and 102, it may be asked. Does not the Constitution itself stipulate the principles of disqualification? Let us read the disqualifications of 102 more closely: holding an office of profit, unsoundness of mind, being an undischarged insolvent, and not being a citizen of India. What is common to these is that they relate not to the quality of the individual candidate, but to maintaining the integrity of the electoral process. Holding an office of profit, citizenship, unsoundness of mind and insolvency are not related to how well a candidate might perform while in elected office, but are aimed at tackling possible conflicts of interest and propensity to corruption (admittedly, unsoundness of mind is uneasily close to a candidate-based disqualification, although it can certainly be argued that there is a qualitative difference between illiteracy and unsoundness of mind). This also helps us in interpreting the omnibus clause: “if he is so disqualified by or under any law made by Parliament.” Disqualifications enacted in law must also cleave to the principle of maintaining the integrity of the electoral process (e.g., disqualification of all persons convicted of cognisable offences), but cannot be imposed simply on the basis of some a priori ideas about what makes a good or effective candidate. As Ambedkar himself noted during the debate, the purpose of putting in a few of the disqualifications into the Constitution was to provide for some “basic” principles. What I have tried to argue is that the disqualifications that the Assembly did finally put in are to be understood in the context of the two key questions I asked earlier: the nature of suffrage, and the purpose of elections. The answers that come out of a study of the Debates make the case that any further disqualifications imposed by Parliament must also be faithful to them. The restrictions under the Rajasthan and Haryana Acts manifestly fail to be: educational requirements, requirements of toilets, and of clearing existing arrears are all justified by an a priori invocation of the probably competent candidate. This goes against the principles of universal suffrage, and also, by denying the voters the exercise of their full and unconstrained choice by screening out certain candidates, it defeats the reason why the framers put in place the mechanism of elections as the bulwark of Indian democracy.

How might this be tangibly used in the constitutional challenge to the Act? One option is under the broad Article 14 argument. As held by the Supreme Court in the Sanction for Prosecution case, under Article 14, the State must not only show intelligible differentia and rational nexus, but also a legitimate purpose. We have tried to argue here that selection of the most “competent” candidate is not a legitimate purpose in the context of elections. Consequently, if the State cannot find any other justification but this, the requirements of the Act must fail Article 14 scrutiny.

N.B. Much of the argument here has focused upon the educational disqualification. It may be noted that the property disqualification (having a functional toilet in your house) is an even more blatant constitutional violation. In fact, on 2nd June 1949, as part of the same speech I quoted at the beginning of this essay, Ambedkar expressly stated that it was not the purpose of the omnibus clause to permit property-based disqualifications.

 

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Haryana’s Educational Qualifications Ordinance Becomes an Act

Previously on this blog, we have discussed the Rajasthan legislature’s imposition of educational qualifications as a pre-requisite to contest local body elections, via an Ordinance, strategically passed last December, just before local body polls. The Supreme Court and Rajasthan High Court’s refusal to expeditiously deal with the issue meant that the elections went ahead, disenfranchising a large segment of the population. The case is still pending adjudication.

The other state that has introduced a similar requirement is Haryana. On August 22, the Chandigarh High Court stayed the operation of Haryana’s ordinance. Two weeks later – late this Monday, in fact – the Haryana parliament passed the Panchayati Raj Amendment Bill, in substance converting the Ordinance into an Act. The next morning, it announced the schedule of the elections. The reason for this is that once the schedule is announced, the election process is deemed to have been set in motion, and according to the jurisprudence of the courts, may not be stayed until completion.

While the judge-made rule against staying elections once the process has begun is a hoary one, the State can hardly be said to have clean hands in this case! The Ordinance was stayed specifically because a constitutional challenge was raised. The legislature’s move – converting it into a law, and then announcing the schedule within the space of a few hours – is clearly designed to avoid a judicial challenge and stay on the very same issue on which the Court has already granted a stay. Surely, if ever there was a time to depart from the principle that elections ought not to be stayed once the schedule has been announced, this is it.

Rajasthan and Haryana are now two states that have property and literary-based disqualifications in place for running for elected office. In the trajectory of enfranchisement throughout world democracies, this places them somewhere in the 1920s. In the nine months since this began, the Supreme Court as well as the High Courts have failed to respond. If this manner of disenfranchisement continues unchecked, it must surely rank as one of the more serious instances of the courts’ abdication of their role as guardians of civil and constitutional rights.

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BBMP Elections and the Karnataka High Court’s Validation of a Constitutional Fraud (Guest Post)

(In this guest post, Dheeraj K. explores a constitutional controversy around local government elections in Bengaluru)

Recently the Karnataka High Court while dealing with petitions against the inaction of the State government to hold elections to Bengaluru’s urban local body, the Bruhat Bengaluru Mahanagara Palike (‘BBMP’) gave a rather astonishing verdict. The decision of the division bench of the Court, in effect extended the term of the BBMP beyond the permissible limit of five years. The decision came after the State government preferred an appeal against the order of a single judge who had directed the State and the election commission to complete the election process before May 30, 2015.

In the year 2010 elections to BBMP were held and the newly constituted corporation had its first meeting on April 23, 2010. As per Article 243U of the Constitution of India which deals with the duration of municipalities, the term would expire on April 22, 2015 after the completion of five years and it is not constitutionally permissible for the term to be extended beyond this date. However, the State Government which is charged with the responsibility of notifying delimitation of wards under Article 243S and reservation of seats under Article 243T had failed to do so, thereby hindering the election process. Petitions were filed before the Hon’ble Court against such governmental inaction. The single judge had ruled against the government and directed it to complete the process in time. During the pendency of the appeal, the State Government notified in the official gazette on April 4, 2015 the dissolution of the BBMP in exercise of the powers vested with it under Section 99(1) of the Karnataka Municipal Corporation Act, 1977 (‘Act’) which empowers it to dissolve the corporation.

The appellant State contented that in light of such a dissolution as per Article 243U(3)(b) the time period for holding elections upon dissolution of a municipality is six months from the date of dissolution and hence, due to the change in factual circumstances, the direction of the single judge is liable to be set aside. The respondents on the other hand contended that the wording in Article 243U(1) is quite clear as far as the maximum term of a municipality is concerned and the same cannot exceed five years.

The dissolution of the BBMP four days before the expiry of its term, meant that the Court was faced with a very pertinent question as to whether six months duration would be granted to the state within which it was to hold elections or the time limit as ordered by the single judge was to be adhered to by the government. Ruling the former would mean that a judicial precedent would be set for governments to unnecessarily dissolve the municipalities a few days prior to the end of its term in order to push off elections. On the other hand ruling with the latter would mean a violation of Article 243U(3)(b) in so far as restricting the period for holding elections which is beyond the scope of the judiciary.

Interestingly, the court did contemplate the judicial precedent it would set if it validated the dissolution as dissolving a municipality four days prior to the end of its term and thereby extending the term is in contravention of constitutional provisions and future government could take refuge under this decision. Despite this grave concern, the Court ruled in favour of the State government and provided them with a period of six months to hold elections. It however added that the government and the election commission must perform its constitutional obligations and ensure the timely re-constitution of BBMP.

This ruling meant that the dissolution under Section 99 of the Act was valid and the responsibility to oversee the functions of the Corporation in absence of elected councilors rested with the administrator appointed by the State Government. This judgment apart from paving the way for a slippery slope, where governments could rely on this precedent and impose its authority over elected municipal corporations also validated a fraud on the constitution.

In the words of Justice P.N. Bhagwati in D.C. Wadhwa v State of Bihar, a constitutional authority cannot do indirectly what is not permitted by the constitution to do directly. By dissolving the municipality four days prior to the end of its term and appointing an administrator for six months from the date of dissolution, the government has extended the term of a municipality well beyond five years. Article 243U(1) is clear in its wordings that the municipality will continue to for a period of five years and no longer. This puts a maximum limit on the term of a municipality at five years. The State government through its acts has in essence violated this constitutional mandate and the Court in permitting it has validated a fraud on the constitution.

The mandate under Article 243U(3)(b) is one which envisages timely elections to the municipalities. The six months time duration fixed by it is a maximum time limit within which elections have to be held. The administrator is appointed in the interim to look after the functioning of the municipality till the time an elected body takes over. The provisio clause to Article 243U(3) provides that elections need not be conducted if the remainder of the term upon dissolution is less than six months. It can be inferred that the six months time period is merely for the elections to be held and to prevent any mischief of delaying the process of elections and thus allowing a nominated body to function. Furthermore, Article 243U(4) states that the municipality constituted upon dissolution shall only continue for the remainder of the period the dissolved municipality would have continued had it not been dissolved. This clearly states that under no circumstance can the five year cycle envisaged by the Constitution be disturbed let alone extended. The view was upheld by the Gujarat High court in the case of Gujarat Pradesh Panchayat Parishad v State Election Commission and others where is held that any attempt by the Executive or the Legislature not to hold elections cannot be permitted.

Article 243U(3)(a) directs the state government to complete the election process before the expiration of the five year period. The process of elections must have taken place well in advance. The state government has failed to fulfill this responsibility. It was held in Indira Nehru Gandhi v Raj Narain, that democracy postulates that there should be periodical elections. The Apex Court further held that periodic elections forms a part of the basic structure doctrine. The State government has violated this constitutional mandate as well. Interestingly, the Court does not address this issue at all but advised the State and the Election Commission to conduct periodic elections. Such an approach by the Court is lamentable.

The government has perverted the Constitution in as much as it has acted inconsistently and in opposition to the spirit of the Constitution. In this case the Court was charged with a huge responsibility since the interpretation given by the High Court would have become the law. The High Court had an opportunity to address these issues in detail and come out with a reasoned and possibly a landmark judgment outlining the lacuna that exists in such a case of dissolution of a municipality few days prior to its termination. It was open for the Court to invoke the doctrine of fraud on the Constitution in order to prevent the government from employing subterfuge. However, the High Court has failed to discharge this burden and turned a blind eye to these unconstitutional actions of the State Government.

(The writer is a third-year student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata)

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Guest Post I: The Panchayati Raj Ordinance Case and Article 14 – A Codicil

(We are continuing with our analysis of the Rajasthan Panchayati Raj Ordinance, which imposes educational qualifications as pre-requisites for running for elected office in local government, and its fate in the courts. This is a guest post by Vasujith Ram, a student at the National University of Juridical Sciences (NUJS), Kolkata)

In a challenge to the Ordinance No. 2 of 2014, which imposes educational disqualifications for the Rajasthan Panchayats, the Rajasthan High Court refused to accept the stay applications and pass interim orders. The order has been previously analysed here on this blog as a “complete violation of constitutional norms and standards”. While I certainly agree with the substance of the analysis, I would like to add some auxiliary notes in this post.

My first point is with respect to the “object-nexus” test under Article 14. In the earlier case of Javed v State of Haryana, previously referred to on this blog here, one of the contentions made was that the differentiating statutory provision – mandating the disqualification of those violating the two child norm – would not have any rational nexus with the object sought to be achieved by the Act. Rejecting the contention, the Court referred to Article 243G(b), which states that powers and responsibilities that may be entrusted in the Panchayats in pursuance of economic development and social justice are referred to in the 11th Schedule to the Constitution. As per the Schedule, Family Welfare and Women & Child Development form part of the duties of the Panchayats. Moreover, Section 21 of the Haryana Panchayati Raj Act, 1994 also listed family welfare as one of the callings of the Panchayats. Thus the Court justified the endurance of constitutional scrutiny by arguing that the electoral disqualification only furthers the statutory purpose.

In the present case, the Rajasthan High Court could have mimicked the Supreme Court’s reasoning – item 17 in the 11th Schedule of the Constitution provides for “Education, including primary and secondary schools”; item 19 refers to “adult and non-formal education”. Similarly the First Schedule of the Rajasthan Panchayati Raj Act, 1994 (operationalizing Section 50 of the Act, providing for powers and functions of the Panchayats) lists primary education and literacy programs as one of its priorities (item XV and XVI). It is manifest that the basic error committed by the Supreme Court in Javed was to conflate the two different objects of lending legal recognition to the Panchayats (vide the 73rd Amendment and the Panchayati Raj Act) – (1) One is to create a right of political participation and self-governance by opening up positions to institutions with statutory power for those hitherto deprived of it; (2) the other is to encourage such constituted bodies to engage in certain activities and promote certain goals. Imposing a restriction on (1) to ostensibly serve the object of (2) is dubious logic. A statutory amendment, in order to survive the object-nexus test, ought to be consistent with the corresponding object of the main Statute or the Constitutional Amendment authorizing the statute. The High Court here aptly identifies this distinction –

 “The disqualification for membership, under Article 243F of the Constitution, to be prescribed by the Legislature of the State, could not have provided for any such condition attached, which may have taken away the rights of the self governance, except for disqualifications, which have material object to achieve, such as the character, integrity or morality of the person to represent […] Any other disqualification will negate the object of self governance at grass root level, peoples participation, and social justice”.

Identifying this, the Court further held –

“In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic […] The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion.”

This distinction between the two objects is one of crucial importance. The 73rd Amendment itself states that one of the objects of constitutionalizing the Panchayati Raj institutions is to remedy the “insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women”. In order to fulfil the object-nexus test, a statutory amendment to a law ought to be consistent with the corresponding object of the constitutional amendment or provision authorizing such a law. If one of the stated objects of the 73rd Amendment could effectively be subverted (despite the seat reservations) by setting electoral bars in pursuance of goals the constituted body is to pursue (a different object), then the object of the Constitutional Amendment would be defeated. For example, item 14 of the 11th Schedule mentions rural electrifications and item 16 mentions poverty alleviation. No statutory amendment imposing such electoral restrictions ought to withstand the “object-nexus” constitutional scrutiny.

If on the other hand, there is a bar which fulfills and furthers recognizes material objects of constituting a political body – such as “character, integrity and morality” of the person, it must withstand constitutional scrutiny. And this is precisely what the Rajasthan High Court held in response to the Advocate General’s contention that a previous ordinance had disqualified those convicted and sentenced to imprisonment of 6 months or more. It observed –

“The persons who are engaged in unlawful activities or are defaulters, or acquired any disqualification which may have any nexus with the object, sought to be achieved, namely for representation, may be excluded participation in Panchayats.”

It is also pertinent to note that one factor weakening the State’s stand in the instant case was that the Ordinance had no Statement of Objects and Reasons.

Secondly, this order has perhaps foreclosed the possibility of any argument on the basis of history. I do not have primary materials, but secondary accounts (see for example, M Galanter and Upendra Baxi, “Panchayat Justice: An Indian Experiment in Legal Access”, in M Galanter, Law and Society in Modern India (OUP)) do indicate that there were literacy qualifications in the pre-constitutional period. But the Court here clarified –

In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic. It is a negation of the very object of purpose of enacting the Constitution of India, described in its preamble. The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion […] The republicanism in the country has allowed many persons, who did not even have any formal education, to rise and lead. Some of them had also rises to the position of Chief Ministers of the States.”

Thus the Court has created a distinction between a constitutional regime and a non-constitutional one. What may have been present historically need not necessarily be a sound presence in a democratic republic promising political justice.

My third and last point is with respect to the right to contest. I had noted in an earlier post on I-CON that this case presents a clear opportunity to clarify the nature of the right to contest. I had argued that the judicial decisions so far indicate that there is no fundamental right to contest, and that the statutory creation of the right has only been tested on grounds of reasonableness. Here in this case, while the Advocate General contended that the right to contest is a statutory right and not a fundamental one, the Court did not make any observations in this respect. It rather went on to directly examine the Ordinance’s reasonableness (its consistence with Article 14). Surprisingly, there was no argument on the basis of Articles 21A and 45, where it is the State’s obligation to provide all children free and compulsory education. Having failed in its obligation, the State has further imposed a disqualification on such persons.

 

 

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Filed under Article 14, Equality, Local Government (Panchayati Raj)

Rajasthan High Court’s (interim) Decision on the Panchayati Raj Elections

Previously on this blog, we had discussed the constitutional challenge to the Rajasthan Panchayati Raj Ordinance, which imposes formal educational qualifications to run for elected office at the local government level. We had discussed precedents in cases such as Javed vs State of Haryana, which – in treating the right to vote and run for office as purely statutory rights – had rejected challenges to similar restrictions. We had also argued that the last decade has seen a shift in the Supreme Court’s understanding of the role of elections in a democracy, starting with Union of India vs Association for Democratic Reforms (2002 SC), in which the Court held that the right to vote, while not a fundamental right, was nonetheless a ‘constitutional right’, and through PUCL vs Union of India (2003 SC) to PUCL vs Union of India (the NOTA case, 2013 SC), where the Court held that the act of voting is an exercise of Article 19(1)(a) freedoms. In conclusion, a legislative enactment that goes beyond simply regulating the modalities of voting (and therefore affects the statutory ‘right to vote’) and actually disenfranchises sections of the population (thereby affecting the constitutional ‘freedom of voting’) must be subjected to more rigorous scrutiny than a standard Article 14-rationality review (as in Javed). The logic of voting applies equally to the logic of running for office.

After the Supreme Court dismissed the challenge and granted liberty to the petitioners to approach the Rajasthan High Court, the case was heard by a division bench of the High Court on the 12th of January. Yesterday, the Court passed an order refusing to interfere with the workings of the ordinance. The petitioners had asked for an extension on the nomination period and a stay on the disqualification provisions pending a full adjudication of the dispute, so that in the upcoming elections this month, a large section of the population would not be excluded. The Court’s refusal to agree to either request means that the elections will now go ahead, and even if the Ordinance is eventually held unconstitutional, there will be no remedy until 2020.

Before the Court, detailed arguments were made about the nature and purpose of Panchayati Raj institutions, the arbitrariness of the formal-education requirement, and its disproportionate impact upon rural women (where it would act to exclude 95% of them). The State contended that this was a matter of electoral reform, that the performance of financial and administrative tasks requires formal eduction, and and that the Court ought not to interfere with legislative wisdom in matters of policy.

The core of the Court’s reasoning may be found in paragraphs 32 to 37. In paragraph 32, the Court notes that the State Government has failed to produce empirical data showing that there are enough qualified (i.e., formally educated persons) in the village (especially women), in order to demonstrate that the Ordinance will not exclude a significant section of the population. The Court then notes that even if such evidence was produced, “the exclusion of those who did not have an opportunity of formal education, could not have been denied participation in democratic institutions… the poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualifications.” In paragraph 33, the Court repeats these observations, and adds that the legislation is prima facie “arbitrary, irrational and unreasonable.” In paragraph 34, it states that it is unconvinced by the State’s argument that the financial and administrative tasks of local government require formal education.

We then come to the operative part, in paragraph 35. According to the Court:

If the disqualification prescribed by the Ordinance deprives a large section of the society to participate in the democratic institution of Panchayati Raj, and runs counter to the objectives of the 73rd Amendment, it may be declared as unconstitutional by the Court of law. We, however, find that neither the petitioners nor the respondents have placed sufficient data before us, to form any opinion as to whether the Ordinance is discriminatory as it will exclude a large section of the population from taking part in elections of the Panchayati Raj institutions. Both the petitioners and the Respondents have produced a large number of papers without sufficient opportunity of collection of the datas (sic) and the other side to reply.”

The Court then holds that the matter will therefore require a full-fledged hearing, and that it does not need to decide upon the constitutionality of the ordinance “at this stage”.

Two preliminary points may be noted. The reason why there was “no opportunity” for the parties to collect data was because the Ordinance was introduced four days before the announcement of the election program (in late December), and the elections itself were to take place through the month of January. It was the State that chose to promulgate the Ordinance literally days before the elections. In effect, the Court’s holding that the parties had no time to prepare data for a proper hearing was entirely the State’s fault, which the Court then allowed the State to benefit from by refusing to stay the disqualification provisions. This is bizarre logic and flies in the face of the basic legal principle, that no man (including the State) ought to benefit from their own wrong.

Secondly, it is hard to understand what data the Court needs apart from the following (most of which was provided to it): the population of Rajasthan at the last census, overall literacy rates, urban literacy rates, rural literacy rates, and urban-male, urban-female, rural-male and rural-female literacy rates. The degree of exclusion, and its gendered nature, will be abundantly clear from these figures, and was specifically argued before the Court.

There is, however, a deeper problem with this judgment. And that is the Court’s belief that discrimination is a problem only when a sufficiently large number of people is discriminated against. Let us recall the words of Article 14:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The right to equal treatment, and the right not to be discriminated against, is a right vested in individuals. The Constitutional freedom to vote (and run for office) as an aspect of Article 19(1)(a) is an individual freedom. A law that specifically bars me, as a single, individual citizen of India, from participating in the democratic process, is as unconstitutional as a law that bars every citizen but me from participation. When it comes to personal freedoms as constitutional rights, numbers don’t matter. And this is because the whole purpose of rights is to act as a check against majoritarian democracy. We vest rights in people because we are aware that majoritarian sentiment, expressed through elected parliaments, can often ride roughshod over core human interests. To then require that the petitioners demonstrate that a “large section of the population is affected” undermines the entire basis of Part III of the Constitution.

There are echoes here of Koushal vs Naz, the Supreme Court’s 2013 decision re-criminalising homosexuality. In the single paragraph of reasoning found in that judgment, the Court labeled the homosexual community as a “minuscule minority”, and held that there was no evidence showing that the “so-called rights of the minuscule minority” had been jeopardised by S. 377. Earlier in 2014, dealing with the educational rights of disabled children, the Delhi High Court signaled a potential shift away from this position by clearly stating that “though a small minority (2.1% of the population), they [the children] deserve no less than the rights under the PWD Act and the RTE.” But yesterday, the Rajasthan High Court echoed Koushal. The only result is a further erosion of constitutionalism and the idea of constitutional rights.

Data is important in this case, but it is important for a reason that the Court does not quite grasp. The challenge to the constitutionality of the Rajasthan Ordinance is two-pronged, and it is important to separate the two prongs. The first is the claim that by disallowing people who lack formal education to contest the elections, the Ordinance is discriminatory under Article 14, and also violates Article 19(1)(a)’s freedom of democratic participation. The second is that the male-female and urban-rural divide ensures that the Ordinance disproportionately burdens women in general (which would be an Article 15 claim), and rural women in particular (another Article 14 claim, if we assume that – following the Court’s previous judgments – intersectional claims cannot be brought within Article 15). The second claim is one of disparate impact: i.e., that a facially neutral statute has a ‘disparate impact’ on one section of the population, and is therefore discriminatory. To take a very simple (and extreme) example, a statute prohibiting the employment of “pregnant persons” is facially gender-neutral, but for very obvious reasons, will work to exclude only women. More complex arguments of disparate impact, by their very nature, require data at the threshold stage: data that demonstrates that the representation of one particular group, as a result of the statute, is far smaller than their representation in society as a whole.

But while the argument claiming that the Ordinance discriminates against women does require data (and such data was provided), the more basic flaw with the Ordinance – that it disenfranchises individuals – does not require facts, statistics or reports. All that it requires is the Court to ask whether the disenfranchisement is justified by any compelling State interest in preserving the integrity of the electoral process, as an aspect of republican democracy. And since the State has deprived people of their constitutional rights, the State must bear the burden of proving its case. If it cannot do so, then the law must fail – or at least, its operation be stayed, pending complete adjudication.

The impact of the Rajasthan High Court’s decision is highly unfortunate. It is also incorrect, and in complete violation of constitutional norms and standards.

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Filed under Disparate Impact, Elections, Free Speech, Non-discrimination