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.

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

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).

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)