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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.

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Filed under Book Discussions, How India Became Democratic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Constitutional History, Elections, How India Became Democratic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Grammar of Section 123(3)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Election Disqualifications and the Constituent Assembly Debates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Haryana’s Educational Qualifications Ordinance Becomes an Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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