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).