Tag Archives: representation

Ambedkar on Citizenship and the Right to Hold Office under the State

Previously on this blog, we have discussed in detail the pending constitutional challenge to the Haryana Panchayati Raj Act, which imposes educational, property and debt-based disqualifications upon candidature in local government elections. Part of the argument has focussed upon the link between the right to vote (or the right to representation) and the right to stand for office, two sides of the same coin that, together, form the core of republican democracy. This leads to the conclusion that notwithstanding the absence of these rights from the fundamental rights chapter, State attempts to curtail them must meet a heavy burden of justification.

As we’ve also discussed on this blog, the qualification and disqualification provisions for parliamentary eligibility were introduced and elaborately defended by Ambedkar, during the Constituent Assembly Debates. Interestingly, today I came across a piece of history, from thirty years before the drafting of the Constitution. In 1919, Ambedkar was called upon to give evidence to the Southborough Committee on Franchise, which was set up to look into designing a system of representation for the Indian dominion. Ambedkar’s complete written submissions can be accessed here. What I found of particular interest was the following passage, in the context of the disabilities suffered by the Untouchables:

“Citizenship is a bundle of rights such as (1) personal liberty, (2) personal security, (3) rights to hold private property, (4) equality before law, (5) liberty of conscience, (6) freedom of opinion and speech, (7) right of assembly, (8) right of representation in a country’s Government and (9) right to hold office under the State. The British Government by gradual growth may be said to have conceded these rights at least in theory to its Indian subjects. The right of representation and the right to hold office under the State are the two most important rights that make up citizenship.”

Notice that Ambedkar runs together rights that are presently in Part III (or, as in the case of property, used to be), and specifically two others which are not: the right to representation, and the right to office. Notice also that whereas rights (1) to (7) are civil rights (previously in the same paragraph, Ambedkar refers to the prohibition of access to public spaces such as roads a denial of civil rights), representation and office (8) and (9) are political rights. It is therefore hardly a coincidence when Ambedkar goes on to state that “the right of representation and the right to hold office under the State are the two most important rights that make up citizenship”: it signifies, also, that representation and office are not hermetically sealed claims that operate in isolation from each other, but rather, are two complementary aspects of citizenship.

Ambedkar’s remarks here can help throw some light on his defence of representation disqualifications in the Constituent Assembly, and the structure of the final Constitution, because they demonstrate that underlying the text of the Constitution was the consistent conviction about the role and place of representation and office in the constitutional scheme. As we have discussed before, much has been made in the Supreme Court’s jurisprudence over the years, about the fact that voting is not a fundamental right, but a “mere statutory right.” The history of the framing of the Constitution, and indeed, the political thinking of its chief architect, reveals that this argument is something of a red herring. It is of course true – and trivially so – that the absence of voting or standing for elected office in Part III of the Constitution precludes a specific Part III claim merely on that ground. However, if it is true that representation and occupying (elected) State office are the fundamental, structuring principles of citizenship in a republican democracy (which has been held to be part of the basic structure), then the State’s attempts to deprive a section of the populace from exercising those rights must be scrutinised carefully by the judiciary. In the Haryana Panchayati Raj case, for instance, the primary claim is that of discrimination under Article 14. In such a situation – as we have argued on this blog – it is the nature and importance of the rights to representation and elected office as structuring principles of the Constitution – that require the Court to abandon its normally deferential Article 14 approach, and apply a level of strict(er) scrutiny, placing high evidentiary burdens upon the State to justify its claims that the restrictions are essential to the integrity of the political process. It also disqualifies the State from invoking unrelated justifications (such as debt-free citizens being “model citizens” and an “example” to others) to defend its law.

(N.B. The full text of Ambedkar’s submissions make for a fascinating read, and repay close study. Of further interest in the present context are his remarks on suffrage, in paragraphs 29 and 30).

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Filed under Ambedkar, Article 14, Basic structure, Constituent Assembly Debates, Constitutional History, Equality, Local Government (Panchayati Raj), Suffrage, The Basic Structure and Democracy

Edward Said, Alessandro Portelli, Law’s Representing Power, and Judicial Humility

In a piece called Death and the Sovereign (the reference is unmistakable), Pratap Bhanu Mehta has an important critique of the Rajasthan High Court’s Santhara judgment. He argues that legal categories (such as “suicide” and “attempted suicide”) are insufficient and inaccurate placeholders for understanding the range and complexity of religious practices, as well as them meaning and significance they carry for their adherents.

Mehta’s argument reminds me of something Edward Said wrote about in Culture and Imperialism: that representation is an act of power, and one way to recognize an unequal relationship is by observing how it acts to silence, exclude and marginalize the experiences of the subjects of representation. Said writes:

Power even in casual conversation to represent what is beyond metropolitan borders derives from the power of an imperial society, and that power takes the discursive form of a reshaping or reordering of ‘raw’ or primitive data into the local conventions of European narrative and formal utterance, or in the case of France, the systematics of disciplinary order. And these were under no obligation to please or persuade a ‘native’ African, Indian, or Islamic audience: indeed, they were in most influential instances premised upon the silence of the native. When it came to what lay beyond metropolitan Europe, the arts and the disciplines of representation – on the one hand, ficton, history and travel writing, philology, racial theory – depended on the powers of Europe to bring the non-European world into representations, the better to be able to see it, to master it, and, above all, to hold it.

Said’s point resonates. In the Santhara judgment, the Rajasthan High Court takes the “raw” or “primitive” data (i.e., the fact that some Jains are undergoing a fast unto death). The Court shoehorns it into the “local conventions” of legal “narrative and formal utterance” (which can equally well be classified as a disciplinary order), i.e., the prohibition against abetment to “suicide”. This, of course, is premised upon the “silence of the… [Jains]”. The questions whether they regard it as “suicide”, and whether there a divergence between how they experience Santhara, and how the law understands suicide, are not addressed.

In a similar vein, Alessandro Portelli, the oral legal historian, writes about the anatomy of an Italian terror trial in the 1970s. In defining a political movement as a criminal conspiracy, Portelli argues that the magistrates were thus involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history, oral history specifically, given the nature of most sources used.” A trial, according to Portelli, always involves reconstructing (or constructing history), through documents and – where there are gaps in the documents – through oral testimonies. This, of course, is another form of representation, and another form of power: through its final judgment, the Court will declare one version of history to be true, which may well be contrary to the experiences of its participants (note, for instance: any finding of guilt must, by necessity, affix whole and complete responsibility upon individuals, rather than structural or social causes. Portelli extracts the evidence of a prosecution witness, before observing that “prosecution witness Romito favors political over social history: mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaderswhose influence on the working class was never more than marginal anyway.”)

The judge’s task, therefore, repeatedly requires her to answer questions that are centrally anthropological (what is the character of Santhara?) or historical (what was the cause of the terror attack?), without obligating her to adhere to the rigorous standards of method and scholarship required of an anthropologist or a historian. Paradoxically, however, the judge has far more power than the anthropologist or historian. While the latter’s conclusions are provisional, tentative and always open, the judge’s findings assume the crystalline immutability of “judicial truth” one they are ensconced in a judgment. More than that, of course, they have very real consequences. As Robert Cover points out, “legal interpretation takes place in a field of pain and death.” In the Santhara case, that is literally true.

All this points to an urgent need for judicial humility. Hard questions should be approached with an awareness of the judge’s privileged subject position, the power that she wields to impose a representation of the “truth”, the further power to convert that representation into actual facts on the ground, and the consequent need to be wary of sweeping, assured positions. True “demosprudence” would require the judge to listen to the experiences of those who will soon be represented in judgments, especially when their experiences seem not to fit easily into pre-defined, a priori, universalising legal categories. It is a trait that, as Mehta points out, is unfortunately completely missing in the Rajasthan High Court’s judgment.

Judicial humility, I suspect, will be a recurring theme when the historians of the future, finally unshackled by contempt of court laws, sit down to write the history of the present Court. In particular, I think they will marvel at how easily our judges liberated themselves from the gravitational pull of doubt, which keeps most of us earthbound, and escaped into the stratosphere of diamond-bright moral certainty. Recently, in confirming a death sentence (Edit: V. Venkatesan has kindly pointed out that it was an abetment to suicide case, and not a death penalty confirmation. My thanks to Mr. Venkatesan), Justice Dipak Misra stated that judges have a duty to respond to the “collective cry of society”. We have heard such words before – in the mouths of prophets and madmen, who have considered themselves to have privileged communion with the Voice of God (vox dei or vox populi, the clarity of the moral vision never dulls). Prophets and madmen, however, have no need of explaining themselves. Judges do, because they live under the Constitution, like the rest of us, and have as much a duty of fidelity to the Constitution as the rest of us do.

What is the collective? How can you know that there is only one collective, which speaks with one voice (one “cry”)? How can you know that the collective is right? And above all else, how can you be so sure that you, among all citizens, have correctly heard and interpreted this “collective cry”? Such pretensions would provoke laughter, did they not have such real and tragic consequences.

Almost five hundred years ago, Oliver Cromwell wrote to the synod of the Church of Scotland, stating thus: “I beseech you… think it possible that you might be mistaken.” It is a plea that one wishes would be heard by the present judges of the Court.

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The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance

(H/T to Mythili Vijay Kumar for pointing out Javed vs State of Haryana and helping me through the attendant issues)

Today, the Supreme Court dismissed a challenge to the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 (approved by the Governor on December 19, 2014). The dismissal was on procedural grounds. As far as I can understand, the petitioners were granted liberty to approach the High Court. Considering that the nomination period ends tomorrow, and (again, to the best of my understanding) the Court refused to grant an extension, it is likely that the challenge is now (for the time being, at least) infructuous. Nonetheless, we have probably not heard the last of this. This post considers some of the issues involved.

This ordinance makes certain educational qualifications a necessary pre-requisite for contesting local government (Panchayat) elections.  The petitioners have argued that the Ordinance is discriminatory, and “abrogates their constitutional right to contest elections.” They contend that in light of low literacy levels in Rajasthan, the Ordinance is especially slanted against the rural poor. Others have pointed out the gendered impact of the Ordinance, which will act to exclude women on a much larger scale than men.

The contention that literacy requirements are designed to exclude already marginalised groups from the political-democratic process is neither new, nor limited to India. As the historian Alexander Keyssar notes, in his magisterial account of the history of the right to vote in the United States, property and/or literary qualifications were consistently used to constrict the scope of the right to vote, excluding, at various points, landless labourers, women and blacks. The link is not difficult to spot: access to education is mediated by socio-economic status. The constituency that has not received a basic formal education is most likely to be overwhelmingly poor (economic reasons), female (social and economic reasons), and migrant.

Whatever we may think of the legislative wisdom of the Ordinance, the constitutional challenge, nonetheless, has to overcome a significant hurdle. This is because the “right” to vote (and, by extension, the right to run for office) has never been considered by the Supreme Court to be a “constitutional” right. The Court has repeatedly stated that it is (albeit “anomalously”) a pure statutory right, created by law and therefore regulated by it. For instance, claims that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) have been dismissed on the ground that because there is no “antecedent” right to stand for election, there is no constitutional violation. Citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law.

This was the reasoning of the Supreme Court in an analogous case in 2003, called Javed vs State of Haryana. In Javed, a provision of the Haryana Panchayati Raj Act stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children.” The constitutionality of this provision was challenged under Articles 14, 21 and 25. A three-judge Bench of the Court rejected the challenge.

At the heart of the Court’s Article 14 reasoning was the proposition that since the right to stand for election is not an antecedent constitutional right, standard principles of rationality review under Article 14 will apply. It observed:

“The classification is well-defined and well- perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.

Responding to the contention that the number of children one had bore no relevance to one’s capabilities to discharge the duties of one’s elected office, the Court held that “we have already stated that one of the objects of the enactment is to popularize Family Welfare/Family Planning Programme.” Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny.

One can easily see how a similar argument will squarely apply to the Rajasthan Ordinance. By making literacy a pre-requisite to contesting local elections, the “objective” is to promote literacy in India (something nobody can have an objection to). That literacy bears no relevance to one’s ability to perform the duties of electoral office is – per Javed – irrelevant, because the legislative policy is something else altogether.

Notwithstanding this, one must also note that the understanding of the place of voting and elections within the constitutional scheme has changed over the last decade. In Union of India vs Association for Democratic Reforms, decided one year before Javed, the Supreme Court distinguished between the “right” to vote (statutory) and the “freedom” to vote (constitutional). This latter freedom was grounded in Article 19(1)(a) (freedom of speech and expression). The Court invoked the familiar argument that at the heart of the 19(1)(a) guarantee were ideas of republican democracy. Consequently:

Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

In 2013, this view was affirmed by the famous “NOTA judgment” of the Supreme Court. The directions to include a “None of the Above” option in the EVMs was grounded in the reasoning that voting – as an integral part of the democratic process – is protected expression under Article 19(1)(a).

Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? When examining the NOTA judgment, I’ve suggested that the only way of reconciling the two is as follows: the legislature is permitted and entitled to regulate the election process (which it does through the Representation of Peoples Act, and other similar statutes). The legislature can prescribe the modalities of how elections are to be carried out, and thus it can (within reason) determine how the freedom to vote is to be exercised. However, if the legislature makes a law that regulates or restricts not how the electoral process is to be carried out, but who is entitled to participate in it, then such a law must be subjected to rigorous scrutiny by the Courts – because that goes to the very heart of the constitutional freedom itself.

The right/freedom to vote, and the right/freedom to stand for office are conceptually inseparable, as they form equally integral parts of the democratic process. Consequently, the same logic applies to the latter. Admittedly, Article 84 of the Constitution (dealing with the legislature) requires candidates “possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”, thus expressly envisaging the possibility that Parliament may pass a law limiting the entitlement to participate in the democratic process on the basis of certain qualifications. Nonetheless, the freedom-of-voting decisions of the Supreme Court indicate that legislation that directly disenfranchises persons (by ‘disenfranchise’, I mean both the right to vote and the right to stand for office) ought to be subjected to more rigorous scrutiny than a ‘rational review’ standard.

In particular, the State should not be allowed to introduce extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation. This would amount to what is called an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution. Secondly, the State should be required to justify the relationship between the restrictions that it has imposed, and the fundamental place of the electoral process in a republican democracy. For instance, a law that prohibits persons with criminal convictions from standing for elections has a demonstrable nexus with the role of elections in a the democratic process. A law that prohibits persons on the basis of literacy does not.

Republican democracy is based upon the core idea that every citizen has the freedom to participate in the workings of democracy, whether by voting or by standing for elected office. Every limitation upon this freedom is problematic. This is especially true when the limitation affects those most marginalised by the political process. Consequently, I would argue, with respect, that the Court was incorrect in dismissing the petition, because there are crucial constitutional issues involved. If this case comes back before the judiciary, it is to be hoped that some of these issues will be considered.

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