Tag Archives: suffrage

The Colonial Antecedents of the Supreme Court’s Jurisprudence on the Rights to Vote and Stand

(In this guest post, Rohan Kothari, who represented one of the interveners before the Supreme Court in the recently concluded hearings on the constitutionality of the Haryana Panchayati Raj Act, discusses the tangled history of the jurisprudence on the right to stand for elections)

Oral arguments in the dispute over the amendments to the Haryana Panchayati Raj Act, 1994 were concluded in the latter half of October, and the matter is reserved for judgment. However, in the interim, Justices Chelameshwar and Sapre had allowed parties to hand over additional written submissions dealing with certain issues that were discussed in haste during the proceedings. What is to follow is slightly altered version of one of the submissions made to the Court with regard to the nature and status of the right to vote and right to contest.

Unfortunate as it is, there is still no clear line of judicial thinking on the question of what is the meaning of this right to vote and right to contest. We still are hazy on whether they are symmetrical or not, whether they ought to be included as an implicit part of Part III of the Constitution, whether they occupy a separate place in the Constitution as “constitutional” but not fundamental rights, or are they mere statutory rights as contended by the State of Haryana throughout the proceedings.

I wont go into detail here as to why a conclusion on the status of the right to vote and contest was important to the dispute, since previous posts on the blog have dealt with that point quite well. But suffice it to say, should the Court find that the right to contest is a mere statutory right, the chance of it finding the amendments to the Haryana Act unconstitutional might be somewhat lower.

While reviewing the Supreme Court’s slightly awkward and sometimes awfully contrary determinations of the right to vote and contest, there came up a need to find the source of the dispute, the origin of the controversy. And this took us back to 1952-to the Supreme Court’s decision in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (1952 SCR 218), where the rights in question were first discussed. Now this decision becomes important for two reasons: (i) that it was the first time that the right to contest was debated upon, and (ii) the contention of the State of Haryana, that the rights to vote and contest were mere statutory rights and not fundamental or constitutional in nature was derived from a line of cases decided by the Supreme Court, the first of which was Ponnuswami.

In paragraph 19 of Ponnuswami, the Court relied upon the decision of the Privy Council rendered in the case of Joseph Théberge and Anr. v. Phillipe Laudry (1876) 2 AC 108 and observed (as obiter) that the following position of law emerges:

“(1) The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”

One should note here that the context in which these observations were made was that of the powers of the High Court to hear an election dispute, and the effect of the constitutional bar found in Article 329(b) on such powers.

The abovementioned observations have formed the foundations of an election jurisprudence in India that has identified at certain points, the rights to vote and contest as merely statutory, and at other points as constitutional or even fundamental. Given this, we contended that the observations made in Ponnuswami’s Case (and later followed in several other decisions of Supreme Court) were arrived by relying upon the ratio of Theberge v. Laudry, which was decided in a very specific context, i.e., that of colonial England, and as such the same could not be applied to the context of an independent and democratic India.

The decision of the Privy Council in the case of Theberge v. Laudry centered around roughly the same issues that arose in Ponnuswami’s Case– whether the Crown Court (equivalent to the High Court) could entertain an appeal from election petition when there existed a specific statutory provision that prohibited the entertainment of any such appeal, before any court. This is where the the history and scheme of the enactment in question in Theberge v. Laudry became important, as it provided for that vitally differentiation of the decision from the Indian context, making its ratio non-transposable, if not entirely inapplicable.

The Act of Parliament in question in the Theberge v. Laudry was the Quebec Controverted Elections Act of 1875. That Act had repealed an Act of Quebec Legislature of 1872 which was called “An Act to provide for the Decision of Controverted Elections by the Judges, and to make better Provision for the Prevention of Corrupt Practices at Elections.”

 Section 90 of the 1875 Act stated: “Such judgments shall not be susceptible to appeal.”

The Privy Council spoke about the Legislations in the following manner:

“These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their Character. They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assemble to be distinctly and speedily known…”

“…The whole scheme, therefore, of the Act of Parliament is that, once the action of the Superior Court takes places, and the decision of the Superior Court arrived at, the machinery is to go on just as it had formerly gone on inside the Legislative Assembly;- writs are to be issued, seats are tot be taken, other proceedings are to be had, as would have been the case before the Court was called into operation, and when the Legislative Assembly decided these matters by its own authority.”

The Council went on to observe that:

“Now, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members. Those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place.”

 The quoted paragraphs tell us that the rights to elect and those of electors were administered in a very different fashion in England at the time when this decision was rendered. Since supremacy existed with the legislative (Parliament), the rights of the members of the legislative were also, originally, adjudicated upon by the legislative. This power to adjudicate upon these rights was, as can be surmised from the decision of the Privy Council, vested in a very narrow way. The power vested with a particular Tribunal through the medium of a particular statute, and hence no other court could claim to have jurisdiction over such a matter.

We contended that the rights commented upon in Theberge v. Laudry were administered in a vastly different manner than they are in India. Article 326 of the Constitution provides for universal adult franchise, therefore unlike in Colonial England, the right to elect does not find its origins in the supremacy of the legislature, but in the Constitution. Additionally, while parliamentary privileges are matters outside the jurisdiction of Courts even in India, no legislature in India has ever assumed the powers to adjudicate disputes relating to election petitions. The Constitution does not grant either the Parliament or the State Legislatures such a power, and Article 329 which deals with election petitions, specifies the manner in which such a dispute is to be heard, and by what authority.

It was on this basis that we concluded by stating that the observations made in Ponnuswami’s Case, which formed the basis of a large part of India’s electoral jurisprudence, were not something than could be as easily relied upon as put forward by the State, and that the conclusions drawn (in the several decisions that followed) need to be revisited and reconsidered. Given the reception of the Court in Raja Bala, I’m reasonably sure that this odious exercise might be evaded, but lets hope that the Court at least realizes that Ponnuswami was a little more complicated than it is made out to be.

(The author is a Delhi-based advocate)

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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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Election Disqualifications and the Constituent Assembly Debates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Sex Discrimination and the Constitution – XI: The Justification of the Anti-Stereotyping Principle

We have seen that in Anuj Garg, the Supreme Court adopted the anti-stereotyping principle: sex-based classifications could not be saved under Article 15(1) if their only justification was to invoke stereotypes about women’s sexual or social roles in the community. What, however, is the basis of this principle? Since the Supreme Court borrowed it from American jurisprudence, we must take a brief detour, and examine the history of constitutional sex discrimination claims in the United States. That history throws up a surprising link: between sex equality, and the right to vote.

Until 1919, women in the United States did not have the right to vote. The denial of this right was justified – among other things – on a theory of virtual representation: that the interests of women were represented (before marriage) by their fathers and (after marriage) their sons, so there was no need for a separate vote. The idea of virtual representation was not restricted to the sphere of voting, but extended to an entire legal regime known as coverture: through which men disposed off property, entered into contracts and engaged in commercial relations on behalf of their wives or daughters. The social philosophy underlying the law of coverture is now called “the separate spheres” theory: i.e., it holds that men and women belong to naturally-ordained separate spheres – the public sphere for men, and the private sphere for women. To perform the functions required of one’s sphere is a natural obligation, and the two spheres are exclusive and non-overlapping.

The denial of the right to vote, therefore, rested upon the legal framework of coverture, which, in turn, was justified by the social theory of the separate spheres. So when the women’s suffrage movement in the United States’ concretely demanded the right to vote, it was not simply asking for access to the ballot box, but challenging the legal regime of coverture and the philosophy of the separate sphere itself. This is evident from the 1848 Seneca Falls Declaration, widely believed to herald the start of the suffrage movement. The Declaration accused man of “claiming it as his right to assign for [woman] a sphere of action, when that belongs to her conscience“, and attempting to “destroy her confidence in her own powers, to lessen herself-respect, and to make her willing to lead a dependent and abject life.” The twin ideas of dependency and an imposed restriction of social roles formed the heart of the claim for suffrage. This was understood by opponents of the movement as well, who linked the right to vote and the transformation of the separate spheres, askingif our ladies will insist on voting and legislating, where, gentlemen, will be our dinners and our elbows? where our domestic firesides and the holes in our stockings?” The American legal scholar, Reva Siegel, argues therefore that “the arguments of suffragists and their opponents tied the idea of women voting to the prospect of women’s emancipation from traditional roles in marriage and the market. Once the question of woman suffrage was infused with this social meaning – once the question of woman suffrage was known simply as the “woman question” – the nation’s debate about whether women should vote turned into a referendum on a whole range of gendered institutions and practices.”

Of course, between 1848 and 1919, the suffrage movement developed multiple currents, not all of which were in harmony. Around the turn of the century, for instance, another strand of the movement began to invoke the separate sphere to justify the claim for suffrage, arguing that because of women’s unique knowledge about issues related to welfare, the bringing up of children, sanitation and hygiene etc., they ought to be allowed the power of the ballot box in shaping policy. A decade later, yet another strand raised the spectre of the recently-enfranchised African-American community overwhelming the Whites at the polls, and asked for the vote to counteract this threat (See Alieen Kraditor, The Ideas of the Woman Suffrage Movement). As is the case with al social movements, it is impossible to tell which strand had the greatest contribution towards ultimate constitutional success. However, what is important to note is that the 19th Amendment, which granted the women the vote, was framed as a right. Neither the second, nor the third arguments for the vote, that we have outlined above, were framed in the language of constitutional principles or rights. It was only the first, and original suffragist argument against the theory of the separate spheres, that was framed in the vocabulary of rights. Consequently, whatever the intentions of the drafters of the Nineteenth Amendment, its very language reflects the constitutional acceptance of the anti-separate spheres movement. More importantly, this is how the Courts understood it – at least initially. In 1923, in Adkins vs Children’s Hospital, the Supreme Court struck down differential working hours of men and women. In so doing, it overruled the pre-Nineteenth Amendment case of Muller vs Oregon (which some of our courts have relied upon), noting that “… the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued ‘with diminishing intensity.’ In view of the… revolutionary changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment… these differences have now come almost, if not quite, to the vanishing point.” Fifty years later, in Frontiero vs Richardson, the judgment which kickstarted the modern American law of sex discrimination, Justice Brennan referred to “traditional belief that the “paramount destiny and mission of women are to fulfill the noble and divine offices of wife and mother”, before stating:

“As a result of notions such as these, our statute books gradually became laden with gross, stereotypical distinctions between the sexes and, indeed, throughout much of the 19th century the position of women was, in many respects, comparable to that of blacks under the pre-Civil War slave codes.”

Justice Brennan’s opinion makes the link between the anti-stereotyping principle and the separate spheres theory. The transformative moment that changed separate-sphere based stereotypes from accepted classificatory tools to unconstitutional, discriminatory ones, was the Nineteenth Amendment, which repudiated virtual representation and its underlying justifications by affirming the right of women to vote.

It is, of course, dangerous to draw connections between jurisdictions in too facile a manner. Two things ought to be noted, however. The first is that the link between the right to vote and the repudiation of separate spheres is a conceptual link, and not jurisdiction-specific. And the second is that a brief look at our pre-Constitutional history reveals some striking similarities. Scholars like Partha Chatterjee and Tanika Sarkar have demonstrated that the public/private divide in the form of ghar/bahir (although in a subtly different form) arose in India towards the end of the nineteenth century, with British efforts at social reform resisted on the grounds of interference with the “inner domain” of community life, which was often represented by the figure of the woman. Chatterjee notes, for instance:

“The world is [deemed to be] a treacherous terrain of the pursuit of material interests, where practical interests reign supreme. It is also typically the domain of the male. The home in its essence must remain unaffected by the profane activities of the material world – and woman is its representation. And so one gets an identification of social roles by gender to correspond with the separation of social space into ghar and bahir.”

This, as we can see, closely corresponds to the separate spheres theory (again, one must be careful of too much reductiveness in comparisons – for the purposes of this argument, however, a rough analogy will suffice). The separate spheres theory spilt over powerfully into the nascent demand for self-representation during the 1920s and 1930s phase of the freedom movement. Initially, during the first opening up of suffrage by the colonial government, separate electorates were proposed for women. As Wendy Singers points out, these “characterized a candidate as a stand-in for her constituency. In other words, separate electorates for women made manifest the idea of a women’s constituency that represented women’s issues and was embodied by the candidate.” (See Singers, A Constituency Suitable for Ladies 25) This was strongly resisted by the All India Women’s Conference (AIWC) and other organisations; on the other hand, as Gerladine Forbes points out, the proposition that only women could represent the interests of the “home” was endorsed by leading figures such as Sarojini Naidu, who urged “women to utilize their housekeeping skills to put the ‘national house’ in order.” This was also reflected – as Forbes notes – in initial demands to restrict suffrage to educated women, who were better placed to advocate social reform. The fact that suffrage was being demanded on two very different grounds, which were based on two incompatible visions of society, was clearly understood by the representatives of the women’s movement during the Second Round Table Conference. Mrinalini Sinha notes that “the representatives speaking on behalf of the Indian women’s movement had insisted that women were neither a “minority” nor a “special interest”, but an integral part of the people… Hence they demanded only universal adult suffrage and a declaration of fundamental rights in the new constitution that removed sex, along with caste, class and religion, as the grounds for any political disqualification.” (Mrinalini Sinha, Spectres of Mother India 223) Here, for the first time, we see the implicit connection between the right to vote, separate electorates, separate spheres, and equality and non-discrimination, being made explicit.

This is, admittedly, a sketchy history; what is worth pointing out, however, is that the Indian Constitution rejected both separate electorates for women and educational qualifications for suffrage. The intentions behind the framers’ decisions are complex, but what matters is that the text of the Constitution merely speaks about adult suffrage. This, in turn, would suggest – based upon our previous arguments – a rejection of the separate spheres theory, much along the lines of the Nineteenth Amendment in the United States.

The anti-stereotyping principle, therefore, is grounded in the transformative nature of the Constitution, which – in simultaneously guaranteeing women the unconditional right to vote along with a guarantee of non-discrimination, rejected separate spheres (and therefore, stereotypes) as justifications for sex-based classifications. Consequently, the line of High Court cases culminating in Anuj Garg was correctly decided, and should be followed in the future. Of course, as Reva Siegel points out, “anti-stereotyping” is an empty phrase without more; to decide whether or not classifications are based on stereotypes needs detailed historical enquiry, tracing the roots of the classifications and their evolution over time. It is an enquiry that the Court is yet to seriously embark upon, but Anuj Garg has, at least, laid the foundation for the future.

(A more detailed version of my argument drawing a link between sex equality, anti-stereotyping, and the right to vote, is available here)

 

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Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Sex Equality