Land, Citizens, and Farmers: Recognising Political Constitutionalism

Indian political and legislative processes are far from perfect. Recently, this has led to arguments (on this blog, and elsewhere) exploring the possibility of increased judicial intervention in the legislative process – where the judiciary ‘examines the validity of procedures leading to enactment’. In this post, I suggest that judicial scrutiny of legislative activity should not underestimate the power of democratic processes to produce respect for the rule of law and rights. However, this approach requires us to locate the ‘constitutionality’ of legislative action in the legitimate decision-making processes of the political system (as opposed to the legal system). Through an examination of the events surrounding the Land Acquisition Bill (2015), the Citizenship Amendment Act (2019), and the three agricultural laws (2020), I highlight how actors beyond courts may impact the constitutionality of legislation.

I briefly outline the two approaches to ‘constitutionality’ under the rubrics of legal and political constitutionalism and then analyse the three legislative events from the lens of political constitutionalism. I do not suggest a wholesale bar on judicial interventions in the legislative process (nor do authors who advocate judicial interventions suggest abandoning other means to improve the legislative process). I also do not delve into how political or legislative reforms may be achieved. The purpose of this post is merely to highlight how democratic processes can also be an avenue to achieve constitutional goods.

Legal and Political Constitutionalism

Legal constitutionalism suggests that because citizens and legislators may not always embrace the values necessary for constitutional democracy, the respect for these values needs to be protected by judges. Therefore, judges serve as a key restraint on legislative power – evaluating whether legislation satisfies constitutional values. (E.g., the Supreme Court invalidating legislation that violates the freedom of speech.) Stepping outside the grammar of rights, such exercises of legislative power typically involve substantive and fundamental competing interests (e.g., public order v free speech), and legal constitutionalism suggests that judges are best situated to settle these crucial issues. However, dissenting opinions and overruled judgements indicate that judges themselves disagree over which outcomes uphold constitutional values. Therefore, the ‘correctness’ of these outcomes largely stems from legal structures that confer jurisdiction on courts to settle these disputes and confer finality on judicial determinations on competing societal interests.

Political constitutionalism argues that ‘the democratic process is equally, if not more legitimate and capable than courts at resolving these substantive and fundamental disagreements.’ Rather that suggesting judicial oversight, it focuses inter alia on: (i) improving the democratic process through improving electoral and parliamentary systems (e.g., proportional representation and parliamentary scrutiny); (ii) creating multiple inflection points where power is balanced (federalism, off-set election cycles, and independent bodies); and (iii) political parties competing for the support of diverse interest groups who themselves have cross-cutting interests, compelling political parties to listen varied viewpoints and often compromise. Crucially, it ‘locates the ‘constitutionality’ of legislation within the political and not the legal system’ by focusing on how decision making procedures can be made legitimate through balancing institutions and ensuring transparent participation. Where legal constitutionalism may emphasise judicially policed rights as central to constitutional culture, political constitutionalism sees democratic participation as causing citizens to identify with a constitutional system.

This may sound idyllic, and caveats must be made in the Indian context. India’s political and legislative structures contain several democratic weaknesses (role of the governor, ordinance powers, anti-defection, partisan speakers, lack of intra-party democracy, imbalanced federalism). As a result, the efficacy and visibility of constraints on power envisioned by political constitutionalism may vary or be entirely absent. In all the three legislative instances discussed below, there was immense public pressure in the form of demonstrations, speeches, strikes, and vigils despite fragile protections for civil liberties. The need for such resistance to hold power accountable does not undermine the argument for political constitutionalism (such actions are firmly within the democratic process envisioned by political constitutionalism) but rather points to the urgent need to reform our political structures to allow for public opinion, contestation, and compromise through elected officials without blood having to be shed.

Readers will forgive my painfully brief explanation of three complex legal issues. The goal here is merely to identify when the structures of political constitutionalism are at play (I tag them in italics for brevity).

Land Acquisition Bill

On 24 February 2015, the Government introduced a bill (Land Acquisition Bill) to replace an ordinance which amended the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Land Acquisition Bill identified certain situations when the government did not need to obtain landowners’ consent or conduct a social impact assessment before acquiring land. The Land Acquisition Bill passed the Lok Sabha on 10 March but the government did not advance the Bill in the Rajya Sabha because it lacked a majority in the upper house (bi-cameralism and federalism). The existing ordinance was due to expire on April 5, but the Rajya Sabha session continued till 8 May. As ordinances cannot be passed when Parliament is in session, the ordinance looked certain to expire until, on 28 March, the President prorogued (terminated the session of) the Rajya Sabha, allowing the government to re-issue the ordinance on April 3, effectively circumventing Parliamentary approval. These actions were challenged in the Supreme Court as an ‘abuse of the President’s ordinance powers’.  

The Land Acquisition Bill was referred to a Joint Parliamentary Committee. In the BJP chaired committee, it was reported that all eleven BJP MPs moved amendments reinstating the need to acquire landowners consent and conduct social impact assessments (parliamentary scrutiny and intra-party contestation). However, the Land Acquisition Bill never passed the Rajya Sabha, and in August 2015 the ordinance was allowed to lapse two months before the 2015 Bihar elections (staggered electoral cycles). The Supreme Court would eventually dismiss the court challenge as infructuous.

Citizenship Amendment Act

The Citizenship Amendment Act, 2019 (CAA) allows illegal migrant to apply for citizenship if: (i) they entered India before 31 December 2014; (ii) they receive exemptions under the Passports and Foreigners Acts; (iii) they are from Afghanistan, Bangladesh, or Pakistan; and (iv) they are Hindu, Sikh, Christian, Parsi, Jain, or Buddhist. The Government claimed the intention of the law was to protect religious minorities in Afghanistan, Bangladesh, and Pakistan from persecution, and the exclusion of Muslim migrants was a ‘reasonable classification’ within the legislature’s discretion given that Muslims constituted a majority in these three countries.

However, critics of the CAA argued that for the Act to be constitutional, the classification must be connected to the purpose of the legislation. If the goal of the CAA was to protect individuals from religious persecution, then the test under the Act must be – is the individual being persecuted? In other words, the law cannot (without basis) presume that Muslims are not persecuted in Afghanistan, Pakistan, and Bangladesh. The exclusion of Muslims was thus disconnected from the goal of protecting individuals from persecution, and hence violated Article 14 (equality before law). It was also pointed out that the exclusion of Rohingya Muslims from Myanmar suggested an unprincipled (and potentially discriminatory) use of legislative power.

The adoption of the CAA led to sustained nationwide protests. The CAA was also opposed by several states and the Union Government received resolutions the legislatures of Meghalaya, West Bengal, Tamil Nadu, Kerala, and Punjab denouncing the CAA (federalism). Kerala and Rajasthan would go on to sue the Union Government under Article 131 of the Constitution over the CAA. The Government has not repealed the CAA. However, despite Parliamentary manuals requiring that subordinate legislation (rules) for the legislation be adopted within six months of a law passing, two years later, the Union Government is yet to adopt any rules for the CAA (as of writing, the Home Ministry has requested time till January 2022). In the two years since the passage of CAA, 140 petitions have been instituted challenging the constitutionality of the legislation, but the Supreme Court has yet to render a verdict.

Agricultural Laws

In 2020, the Government introduced three laws aimed at reforming the agricultural sector (Farm Laws), discussed in detail here. The laws were passed in the Rajya Sabha using a voice vote instead of a division vote. A voice vote is where the chairperson places the issue before the house and decides the vote based on whether the yes’s or no’s are louder. This may be fine to quickly dispose of issues on which there is significant consensus. However, for more closely contested votes, the process of a division vote exists (where MPs vote electronically). It stands to reason that any vote that is won during a voice vote should also be able to pass in a division vote (otherwise the vote is wholly illegitimate as the chairperson has usurped the collective decision-making of the house and replaced it with their own singular discretion). To guard against this risk, the Rajya Sabha Rules expressly provide that if the outcome of a voice vote is challenged, there must be a division vote (r. 253).

The Farm Laws were passed amongst pandemonium in the Rajya Sabha, and the Chairperson contended that opposition MPs were not in their seats when they challenged the voice vote (a claim contradicted by video footage of the day but an issue also not helped by the fact that the audio feed from the Rajya Sabha was cut for half an hour). After the Farm Laws were passed, the leader of the opposition met the President who protested the breaches of parliamentary procedure and requested the President to refuse assent (another structural inflection point). Soon after, the NDA Government lost its oldest coalition partner (the SAD) (coalitions as a restraint on power). The yearlong protests by farmers and the incident at Lakhimpur Kheri have sufficiently entered the popular consciousness that they need not be repeated here. Towards the end of this stalemate, an MP from the ruling party introduced a private members bill to secure some of the protections sought by protesting farmers (intra-party contestation). Eventually, in December 2021 the Farm Laws were repealed in the lead-up to state elections in Uttar Pradesh and Punjab (staggered electoral cycles).

Conclusion

This piece began by noting that the shortfalls in our political and legislative system to meet our needs for legitimate government can be addressed both through judicial interventions and through political structures. The goal of the above examples is to highlight how political structures such as bi-cameralism, federalism, staggered elections, coalition politics, intra-party democracy, and public protests can restrain power, arrive at decisions about contentious issues in legitimate ways, and respond to breaches of the rule of law. These structures are by no stretch perfect. However, reform of political structures must begin from an understanding that they are worth reforming. At a bare minimum, this requires a discourse which situates the constitution in the political system beyond courts. It also requires us to be able to look past political double-speak and understand when political structures are at play.

There is also reason to be cautious of increased judicial intervention. It is notable than in all three of the above examples, constitutional courts have been conspicuous in their inability or unwillingness to intervene. It is always possible to examine individual situations and argue that a court acting as it is supposed to, could have done better. But this ignores the reality that just as political actors do not always act in conformity with their roles, courts are also not perfect functionaries. Arguments for increased judicial intervention must address the reality that constitutional courts in India have their own structural and behavioural weakness. Lastly, where judicial interventions may vest more power in judges, a focus on reforming electoral systems and structuring institutions so that governmental power is constantly subject to meaningful competition and accountable to cross-cutting interests creates space for a broader set of actors to engage in constitutional authorship.

Notes From a Foreign Field: An Instant Classic – The Kenyan High Court’s BBI Judgment

On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Ors vs The Attorney General and Ors. [“the BBI Judgment”]. Through the course of this judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world, in the days to come.

The Context

The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” [“BBI Taskforce”], which was mandated to come up with “recommendations and proposals for building a lasting unity in the country.” After the BBI Taskforce submitted its report, the President appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report.” The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution [“The Constitution of Kenya Amendment Bill, 2020].

Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257(1)). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its component parts – was challenged before the High Court, through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.

The Court framed a total of seventeen issues for disposal.

The Basic Structure

As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the Constitution itself (the “basic structure” question).

The Constitutional Provisions

To understand this better, let us briefly consider Articles 255 – 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the Constitution: through Parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission [“IEBC”], approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).

Article 255 of the Kenyan Constitution places a further requirement for certain kinds of amendments. If an amendment falls into one of ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, Presidential terms etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum, by simple majority (and certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.

The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257); it also divides the Constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 – 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.

The History

To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model … of participatory constitution building process.” (para 402) This meant that the public was meant to be involved with every step of the Constitution-making process, as opposed to the “20th century model”, where Constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version (para 403).

Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from Independence in 1963). The first was a “culture of hyper-amendment” (para 406), where Presidents amended Constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “Constitutions without constitutionalism” (para 407).* This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party State, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.

The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at para 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the President sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” (para 413), efforts to centre the citizen in the Constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya” (para 415), and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process (para 420). The Constitution of Kenya Review Commission [“the CKRC”] implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the Commissioners’ Report (para 425). After a long process that included considering more than 35,000 submissions from the people, a draft Constitution was prepared by 2002. This process was, however, short-circuited when the then-President Moi dissolved Parliament before the 2002 general election (para 427).

In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory Parliamentary process that resulted in a fresh document called “the Wako Draft.” Attempts to force through the Wako Draft were forestalled when the High Court of Kenya, in 2004, famously held that the draft would have to be put to a referendum; in 2005, when the referendum did take place, the Wako Draft was voted down 58-42 (paragraph 433).

Constitutional reform came back onto the table after the large-scale violence in the aftermath of the 2007 Kenyan election, which needed international mediation (paragraph 435). The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft Constitution was passed with 68.55% of Kenyans voting in its favour (paragraph 450).

The Analysis

Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.” (para 469) This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation – in the Constitution-making process – required four distinct steps:

a) Civic education to equip people with sufficient information to meaningfully participate in the constitution-making process;

b) Public participation in which the people – after civic education – give their views about the issues;

c) Debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and

d) Referendum to endorse or ratify the Draft Constitution. (para 469)

The Court thus found:

What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010. (para 470)

The Court labeled this the “primary Constituent power” – i.e., the power possessed by the People themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256) (para 472). The “primary Constituent power” was located outside of the Constitution’s amendment provisions, and was plenary and unlimited; it followed that there were substantive limitations upon the which amendments secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a Constitution – lay only with the primary Constituent power, i.e., with “the People.” (paragraph 474)

Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order, but – for obvious reasons – does not spell that out. The assumption is that if a Constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan Constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-Constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.

It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the Constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis (para 474), while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).

A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the Constitution could not be altered without going back to the People. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.

The Popular Initiative and the BBI Process

A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?

The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. (para 481) Here, the President’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters (para 491). This was also impermissible because the scheme of 257 made the President the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match” (para 492), if he was also allowed to initiate proceedings. Thus, as the Court summed up:

It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests. (para 497)

While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.

In this case, however, it meant that the BBI Process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal (para 553). An executive-led amending process was unknown to the Constitution: it had to be Parliament (Article 256) or People and Parliament (Article 257).**

The Court also found the BBI Process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10 (readers will recall similar arguments being made before the Supreme Court of India in the Central Vista Case), that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages (readers will recall a similar issue about changes to Indian environmental legislation, that were made available only in English). Thus the Court held:

The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments. (para 572)

Constituency Apportionment and Delimitation

A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units.” The Bill sought to introduce seventy new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”) The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission [“IIBRC”] had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89 (para 650).

The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies were not part of the eternity clauses, the provisions dealing with the method of delimitation were:

Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level … Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies. (paras 669 – 670)

Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional (paragraph 681). Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):

We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law. (paragraph 696)

Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.

Miscellanous Issues

There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.

Conclusion

If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.

But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the Constitution. In a world that is too full of Imperial Presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of Courts and Constitutions at their very best.


*Although Indians, with our 103 amendments in seventy years, may be bemused by the twenty-six constitutional amendments between the twenty-seven year period of 1964 – 1991 that the Court singled out as an illustration!).

** This depends, of course, on Parliament being a relevant, independent, and powerful body, which is no longer the case in many formally parliamentary democracies.

Guest Post: RTI and Transparency in Electoral Bonds

[This is a guest post by Siddhanth Sharma and Ashwin Vardarajan.]


Background

On 21st December 2020, the Central Information Commission (‘CIC’), a body authorised under the Right to Information Act (‘RTI Act’) to receive and inquire into the complaints of RTI applicants, dismissed an appeal from an application which sought, inter alia, the disclosure of the details of those who made political donations through the Electoral Bonds Scheme (‘EBS’), which was introduced under the Finance Act, 2017 (‘Finance Act’). The CIC held that disclosure of such information would amount to an infringement of Section 8(1)(e) and 8(1)(j) of the RTI Act. Further, they held that there was no ‘larger public interest’ involved and that the applicant was not justified in interfering with the ‘right to privacy’ of the donors, without really explaining how.

Subsequently on 26th March 2021, the Supreme Court of India (‘SC’), refused to stay the sale of electoral bonds that would be issued between April 1 and April 10, 2021, in the backdrop of elections in four Indian states. 

Earlier, donors and donees were mandated to reveal the details of political donations made and received under the Companies Act, 2013 (‘Companies Act’) and Representation of People’s Act, 1951 (‘RP Act’), respectively; however, this mechanism is not available anymore, after the Finance Act amended them. The efficacy of the RTI Act too, in culling out such information, has been compromised through the CIC’s formulaic December order. While the CIC’s and SC’s rulings are based on different legal questions and facts, there is an underlying commonality between them: both establish in definite terms that there is no public interest in revealing details of anonymous political donors under the EBS and that the apprehensions about illicit political funding are totally misconceived.

In this essay, we argue that the disclosure of information on political donations, via the EBS, is possible under the RTI in ‘larger public interest’. We thereafter conclude by briefly reading the effects of the CIC’s and SC’s orders together.  

Disclosure in ‘Larger Public Interest’ under the RTI Act

The right to information is traceable not only to the RTI Act, but also to Article 19(1)(a) of the Constitution, as has been observed by the SC in State of U.P. v. Raj Narain (1975). The RTI Act prescribes a formal process to extract information from the authorities subjected to it. Section 4(a) of the RTI Act states that all public authorities shall “maintain all its records … in a manner and form which facilitates the right to information”, while Section 8 lists down a number of exceptions whereby the information sought may be exempted on narrowly worded grounds. Sections 8(1)(e) and 8(1)(j) exempt disclosure of information held in a fiduciary capacity, and if it is personal information, respectively. However, the Central Public Information Officer (‘CPIO’), or a competent authority under the RTI Act, may disclose the information if a ‘larger public interest’ exists.  

The RTI Act neither defines the expression ‘larger public interest’ nor lays down any parameters to be followed by the deciding authority in interpreting it. However, recently, the SC’s ruling in CPIO v. Subhash Chandra(2019) gave pertinent insights on how such a ‘larger public interest’ is to be determined by an authority under the RTI Act. According to the SC, a larger public interest would be satisfied if the disclosure relates to a matter of public concern (para.71). A matter of public concern includes matters which are integral to free speech and expression and entitle everyone to seek the truth and comment fairly about. The SC, further, had cited Union of India v. Association of Democratic Reforms (2002), wherein judicial directions had been issued for the disclosure of information relating to the personal assets, educational qualifications and criminal antecedents of election candidates, despite the same being personal and confidential information. Such a disclosure, the Court had held, was justified in light of the ‘larger public interest’ of having an informed electorate, fair elections and a dialectal democracy. The SC further noted that a larger public interest would exist if the disclosure would contribute to debates on inefficiency or wrongdoing, and the accountability of officials. Even though such debates may even ‘offend, shock or disturb’, the court/information officer, must not interpret the effect of the disclosure according to their personal value judgment.  (see, paras.99-101).

While Sections 8(1)(e) and 8(1)(j) of the RTI Act guarantee protection of informational privacy of individuals, the SC, in Subhash Chandra, observed that the right to privacy is not absolute and can be infringed, provided that the infringement adheres to the test of proportionality laid down in Puttaswamy v. Union of India (2017). Accordingly, an authority, while dealing with challenges under Sections 8(1)(e) and 8(1)(j) must see the following before disclosing private information in ‘larger public interest’: (Puttaswamy, para.180)

  1. There must be ‘law’ enabling the measure violating someone’s privacy; 
  2. Such violation must be pursuant to a legitimate aim;
  3. The measure adopted under the law must have a reasonable nexus with the legitimate aim; and
  4. The measure must be the least-intrusive of the right to privacy.

After applying these prongs to each and every category of information sought in an application, the deciding authority must cumulatively assess,  and after giving precedence to the right to information, disclose through a cogently reasoned order whether the disclosure is justified (on a case-to-case basis). Keeping this test in mind, we shall see whether disclosure of information of donors and donees under the EBS is justified under the RTI Act.

Anonymity of Electoral Bonds and Public Interest

In a multi-party democracy like ours, political parties perform significant public functions. As non-state actors, they act as pressure groups influencing Governmental policies. They also enjoy tax exemptions and substantial indirect financing through the Government exchequer. Once elected, they hold the power to decide the functions of the Government and its various policies, which directly affect the lives of billions. Thus, public interest operates against political parties too and citizens have a right to know about their activities, including the sources of their campaign funding. This necessity led the CIC to extend the RTI Act to political parties in Anil Bairwal v. Parliament of India (2013). 

In the midst of such demands for greater financial transparency, the Government introduced the EBS in the Parliament, claiming that that it would formalise political donations and maintain the purity of free and fair elections. The EBS allows political parties to purchase bonds in denominations ranging from Rs.1,000 to Rs. 1 Crore, issued by specified branches of the State Bank of India (‘SBI’), available for a period of 10 days at the beginning of every quarter of a year. The EBS is notified by the Central Government under Section 31(3) of the Reserve Bank of India Act, 1934. Any individual or company can purchase such bonds within 15 days of being issued. However, the donor’s identity is kept anonymous and only known to the SBI. The EBS is a popular source of donation amongst political parties. Between March 2018 and October 2020, bonds worth Rs.6492.43 Crore were purchased.

The value of money power in elections is not new. The 255th Law Commission Report has highlighted that political donations enable big donors to secure favourable policies from legislators and also mislead and align public interest with their vested motivations. Democracy becomes a bidding process, where the highest contributor gets to influence the policies affecting billions (pp.7-11). In the midst of it all, hefty campaign donations translate to financial superiority in elections, which enables political solicitation, advertising and publicity and eventually increases the chance of winning elections. Furthermore, the EBS also allows funding from foreign persons and companies, thereby making India’s electoral process prone to external influence. Identifying who funds political parties would ensure an informed electorate. Voters be enabled to conduct thorough fact-check on the antecedents of parties, and elect only those to power whom they believe possess and incorruptible sense of public duty. 

The arguments of anti-disclosure proponents – that the identity of the donors must be kept private – are mistaken. Section 29C of the RP Act and Section 182(3) of the Companies Act had anyways required disclosure of such information in the financial statements of the donee and donor, respectively. Although formalising the process of political funding through the EBS is welcome, there were no arguments presented by the Government as to why the identity of the donors must be protected. However, for the sake of an argument, let us assume that privacy of donors must be protected. By applying the test of proportionality to justify the violation of the donor’s right to privacy, we see that the object sought to be achieved (i.e., electoral transparency, in line with the preceding paragraph) finds a rational nexus with the legitimate action (i.e., revealing the donor’s identity) through a valid law (i.e., the RTI Act) in the least intrusive way (merely revealing the identity of the donors, which happened earlier too). Since the proportionality test squarely applicable, and since public interest evidently outweighs the right of privacy of the donors, it would be justified to disclose the identity of the donors in ‘larger public interest’ under Sections 8(1)(e) and 8(1)(j) of the RTI Act. The CIC’s order, unfortunately, did not discuss any of the points enumerated above, and thus was evidently deficient in its reasoning.

Conclusion

We now briefly discuss the SC’s refusal to stay the EBS. The SC, in its order, had an (inutile) conversation on how persons seeking information on funds received by political parties under the EBS can cull out the information through the financial statements of the corporate-donors and party-donees. Thus, they felt that the existing scheme was sufficiently transparent, and it was not as though the transactions were behind “iron curtains”, “incapable of being pierced”. However, the SC did not consider the amendments to Section 29C(b) of the RP Act, and Section 182(3) of the Companies Act vide the Finance Act, whereby corporate-donors and political parties are not obligated to disclose such information to either the registrar of companies or the Election Commission, respectively. Ironically, the SC also noted that the only grounds for disclosing of the donors’ identity is when it is “demanded by a competent court or upon registration of a criminal case by any law enforcement agency” (para.18). Thus, they assumed that the filing of annual incomes by donor-companies and other financial statements by political parties would enable a person to cull out information on party funding through a ‘match the following’ without even considering the opaque changes introduced the Finance Act. 

Such loose reasonings manifesting in a formal SC Order, tagged alongside the CIC’s ruling, leaves very little, or no room for someone to know the identity of those who donate considerable sums of money to political parties, perhaps even in return for political favours. That is sincerely against the right to information guaranteed to all citizens, and imperils the electoral process in India of becoming a corporate-run show. The CIC’s order is a dangerous precedent, and the position of law must be obverted in the interest of a truly transparent, fair and free electoral process.

Guest Post: Prisoners’ Right to Vote in India

[This is a guest post by Jyotishka Guha.]


Introduction

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

The 1997 Judgment

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

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

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

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

Foreign Judgments

The NICRO CASE

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

The HIRST CASE

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

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

Conclusion

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

 

 

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

(This is a Guest Post by Goutham Shivashankar.)


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

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

The Facts Restated (with one significant correction)

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

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

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

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

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

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

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

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

Summarizing Naniwadekar’s Argument for Constitutional Fraud

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

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

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

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

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

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

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

In his second post, Naniwadekar states:

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

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

The Relevant Provision of Law

Constitutional Provisions

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

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

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

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

Provisions of the ROPA, 1951

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

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

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

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

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

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

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

 

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

Four points are crucial to note here.

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

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

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

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

The Errors in Naniwadekar’s Analysis

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

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

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

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

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

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

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

 

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

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

The Madras High Court and Injunctions

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

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

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

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

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

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

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

The Kerala High Court and Voting Rights

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

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

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

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

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

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

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

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

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

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

Recent changes in campaign finance law

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

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

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

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

Some Context on Campaign Finance

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

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

Corruption

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

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

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

Article 19 and the “Right to Know

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

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

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

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

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

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

Disclosures in a Democracy

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

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

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

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

The Government’s Arguments

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

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

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

Conclusion

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

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

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


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

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

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

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

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

Navtej Johar v Union of India: Rethinking Rajbala, and the Way Forward

(This is the concluding post in our series of essays examining the Supreme Court’s judgment in Navtej Johar v Union of India. An earlier version of this piece appeared in Scroll.)

As the dust settles over Navtej Johar v Union of India, attention must turn to the future. When, last year, the Supreme Court delivered the famous privacy judgment, it was immediately clear that it was both important in its own right, but also, equally important in the possibilities that it opened up for future expansion of civil rights. Navtej Johar – as I mentioned in my initial essay – was itself made possible by the privacy judgment. And Navtej Johar – in turn – now opens up a series of possibilities. Here are three of them:

A. “Manifest arbitrariness” as a ground for striking down laws

As readers of the blog are aware, we have previously discussed the long judicial tussle between the “classification” and the “arbitrariness” tests under Article 14 of the Constitution. To cut the long story short, the traditional rational classification standard under Article 14 has always been deferential towards the State, and incapable of addressing complex inequalities. Arbitrariness was introduced to mitigate the shortcomings of the classification standard, but has itself ended up being rather … arbitrary. Notwithstanding that, there has always been controversy over whether the arbitrariness standard is limited to invalidating executive action (which would, essentially, reduce it to a glorified Wednesbury principle), or whether it can be applied to invalidate statutes as well.

In the Triple Talaq judgment last year, at least two judges out of five held that “manifest arbitrariness” could, indeed, be applied by courts to invalidate statutes. It was unclear whether the “swing opinion” – that of Joseph J. – endorsed this principle. Subsequent judgments (delivered by two judges) appeared to believe that it did. However, the controversy has now been set to rest. In Navtej Johar – as Abhinav Chandrachud points out in his guest post – all five judges partially strike down S. 377 on grounds of manifest arbitrariness.

What does this mean for civil rights? There is one immediate implication. Three years ago, in Rajbala v State of Haryana (which I have analysed here), the Supreme Court upheld the State of Haryana’s amendments to the Panchayati Raj Act, which had imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. The judgment expressly held that the “arbitrariness standard” could not – and would not – be applied to test the law under Article 14. As Mihir Naniwadekar pointed out at the time, there was a strong argument that the Rajbala bench was bound to apply the arbitrariness standard, under existing precedent. Two judges out of five believed so in Triple Talaq, when they expressly stated that Rajbala stood overruled on this point. And that view has not been vindicated by the verdict of all five judges in Navtej JoharRajbala, therefore, requires reconsideration.

(N.B. I should add that, as previously discussed on this blog, I do not think the arbitrariness standard – as it stands, and without further development – is constitutionally defensible. However, it is what it is.)

B. Discrimination as a contextual enquiry

Justice Chandrachud’s concurring judgment in Navtej Johar argues at great length that the question of whether a law or a rule has a discriminatory effect must be answered by taking into account the background social context in which the law operates. In 2013, in its judgment upholding Section 377, the Supreme Court in Koushal v Naz Foundation had held that in criminalizing “carnal intercourse against the order of nature”, the section only penalized “acts”, and not persons; consequently, the question of discrimination did not arise. In a detailed repudiation of this facile argument, Justice Chandrachud examines how, when Section 377 interacts with the existing social and moral proscriptions, its effect is to confine the LGBT+ community to the proverbial closet, causing great harm to their individuality, personhood, and dignity. Whatever the form of the law, therefore, its effect – when placed within the social context – is discriminatory.

This focus on effect and context has the potential to significantly advance discrimination jurisprudence in India. As an example, take once again the judgment in Rajbala v State of Haryana. While upholding educational disqualifications in that case, the Court noted that it was only education that allowed people to distinguish between right and wrong. What the Court didn’t take into account, however, was that despite our legal and constitutional framework, access to education continues to be skewed along caste, gender, and economic lines, for a multiplicity of reasons (ranging from stereotypes about women’s role in the family, to simple economic stress that does not permit the luxury of sending children to school). This has been pointed out repeatedly, and is well-documented. For example:

A glimpse at Haryana’s background tells us how deeply it is entrenched in patriarchy. It has one of the most skewed sex ratios in India — 877 overall and 837 in the 0-6 year age group. Male literacy rate is 85 pc, against 66 pc for females, a significant gap.

 

Therefore, while the law in Rajbala appeared to be about incentivizing education (a laudable goal), its effect was to further marginalize from the political process those who were already most marginalised. If Chandrachud J.’s reasoning in Navtej Johar is followed, this background context cannot be ignored.

The Supreme Court has an immediate opportunity to correct its error in Rajbala: the State of Rajasthan passed a very similar law at around the same time, which is yet to be adjudicated upon by the Court.

It is, after all, never out of season to dream.

 C. Analogous grounds

In her concurring opinion, Justice Indu Malhotra argues that discrimination on grounds of sexual orientation violates Article 15(1) of the Constitution. Article 15(1) prohibits discrimination on grounds of sex, race, religion, caste, and place of birth. Justice Malhotra takes the view, however, that Article 15(1) covers not only these five stipulated grounds, but also “analogous” grounds: that is, characteristics that bear a family resemblance to sex, race, religion etc. What is common to the “grounds” under 15(1) – Justice Malhotra argues – is that they are either immutable (i.e., impossible or extremely difficult to change), and/or deeply linked to personal autonomy. Sexual orientation, thus, is an “analogous ground”, and therefore protected under Article 15(1).

Malhotra J.’s interpretation is difficult to sustain on the text of Article 15(1), which makes it clear that it refers to a “closed list of grounds” – i.e., the Court cannot add to the five grounds stipulated therein. However, if Justice Malhotra’s view is accepted in future judgments, it does open up Article 15(1) to a range of discrimination claims: for example, age, disability, political belief, and economic status are just a few of the possible “grounds” that can be invoked as analogous, and therefore, protected by a non-discrimination guarantee. Here, once again, the Court must tread carefully, and develop the law in an incremental and rigorous fashion.

Conclusion

For a long time now, the Indian Supreme Court’s thinking on issues of equality and non-discrimination has been static. This is contrary to other jurisdictions such as Canada and South Africa, where judges have deepened their understanding of these questions, over time. Navtej Johar’s judgment provides us with a gateway to updating our own understanding of Articles 14 and 15(1) of the Constitution, to match with ever more sophisticated accounts of what constitutes inequality and discrimination. However, it is only the foundation stone: the future development of the law is now in the hands of the courts.

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

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

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

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

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

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

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

  1. Genealogy of the ‘people’:

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

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

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

  1. Chronosophy of ‘citizenship’:

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

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

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

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

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

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