Earlier this year, the state of Haryana – following the state of Rajasthan – amended its Panchayati Raj Act. Through the Amendment, it introduced certain restrictions upon the right to contest Panchayat elections. These restrictions included the requirement of education (up to a certain level), having a functional toilet in one’s house, and being debt-free. As any student of history knows, educational, property and debt restrictions upon voting and standing for elections, were a standard tool used by regressive States to contain the political power of suppressed constituencies, whether it was the blacks in Jim Crow America, or Indians under the colonial British government. Haryana’s move was promptly challenged in the Supreme Court. In a judgment that came as a surprise to many, on December 10, 2015, the Court rejected the challenge, and upheld the law, disenfranchising a significant number of people.
The rights to vote and contest
The root of the controversy is a strange anomaly in our Constitution. Despite the fact that our nation is built upon the foundation of republican democracy (which the Supreme Court has held to be part of the Constitution’s basic structure), the rights to vote and contest find no place in the list of fundamental rights guaranteed by Part III of the Constitution. While Article 326 of the Constitution does stipulate that elections must be conducted on the basis of universal suffrage, there is no “fundamental right” to vote, or to stand for election. For this reason, the challengers to Haryana and Rajasthan’s laws could not directly claim the violation of a right; instead, they argued that the law violated Article 14 of the Constitution, which guarantees equal treatment to all. Restrictions based upon education, upon debt, and upon property, placed an unjustified burden upon the class of people that they disenfranchised, and therefore, violated the right to equality.
Interestingly, on a survey of its prior jurisprudence, the Court first concluded that the right to contest elections, despite not being a fundamental right, was nonetheless a “constitutional right”. The Court did not explain the distinction between a fundamental right, a constitutional right, and a mere legal right (that can be created and taken away by the simple passage of a law). Presumably, however, a “constitutional right” occupies a place somewhat lower than a “fundamental right” (which can be curtailed only on grounds specified within the Constitution), but somewhat above a legal right.
Equality and its discontents
It is at this stage, however, that the judgment suddenly changes track. After holding that the right to contest was a constitutional right, the Court moved to examine the Article 14 question. Ordinarily, an Article 14 challenge involves a multi-layered enquiry. Once it is shown that a law creates two classes of persons, whom it treats differently, Article 14 is violated unless it can be shown that the classification follows an “intelligible differentia”, and that it bears a “rational nexus” with a legitimate governmental aim. For instance, the State may place a high rate of tax upon cigarettes. This tax, which burdens smokers more heavily than non-smokers, will be constitutional because the two categories (smokers and non-smokers) are intelligibly different, and because the burden is rationally connected to the State’s legitimate interest in promoting public health.
The key question at the bar, therefore, was whether the educational, property and debt restrictions, which created two classes of people (those who could, and those who could not contest), bore any rational nexus with a legitimate government aim. Given that the Court had already held that the right to contest was a “constitutional right”, one would have expected it to hold the government to a strict standard of proof, requiring it to adduce evidence showing that the restrictions were actually needed in the context of ensuring the integrity of the electoral process, or necessary for performing the functions asked of elected representatives.
The Court, however, did no such thing. On the question of education, it simply noted that education is required for distinguishing between right and wrong, and between good and bad. On the basis of this gross stereotype, and without examining any evidence about the actual functioning of Panchayati Raj institutions on the ground, the Court in one fell swoop disenfranchised a large section of the population who had lacked the privilege needed to access education in a country as riddled with poverty and exclusion as India.
The Court’s treatment of the debt and property (toilet) questions was even more cavalier. On the first, the Court held – astonishingly – that since elections were an expensive affair, persons in debt were unlikely to even try and contest – and that consequently, the question was more “theoretical” than real. In any event, the Court held, debt-free citizens could serve as an “example” to the rest of the community, and that therefore, there was nothing wrong with excluding the indebted from fighting elections.
Once again, the Court’s observation reflects a very basic moral and intellectual failure. The positing of indebtedness as an individual choice, which reflects personal weakness of character (which, in turn, makes one unfit to serve as an elected representative) ignores the fact that the cause of indebtedness – and primarily, rural indebtedness – is primarily structural, not individual. It could arise out of crop failure, a bad monsoon, and above all else, the absence of any viable social safety net provided by the State. Much like in the case of education, the Court perversely penalised the most vulnerable members of society for having been failed by the State and the community. The Court’s reasoning on toilets reflected a similar (classist) bias: pointing to the government’s extensive toilet program (and ignoring evidence to the contrary), the Court ended with a bizarre generalisation, stating that if persons do not possess a toilet in their house, it is not because of their povery, but because of a “lack of will.”
In sum, the Court’s analysis makes a mockery of one of the foundational rights of the Constitution: the right to equality. By upholding the deprivation of the important constitutional right to contest elections on the basis of stereotypes and generalisations, the Court has abdicated its basic role as the guardian and sentinel of fundamental rights.
Discrimination in intent and effect
There is one other sin of omission in the Court’s judgment. The restrictions, while based on ostensibly “neutral” criteria such as education, debt, and property, in effect would operate to exclude the most vulnerable sections of society – such as women, and lower castes. The discriminatory effect of seemingly neutral laws has been understood and acted upon by Courts all over the world. The highest courts of Canada, South Africa, and the United Kingdom, when scrutinising laws for compliance with the principle of non-discrimination, do not merely ask whether, by its very words, the law burdens women, or blacks, or homosexuals, but whether it does so in its effects. At the root of this is the understanding that discrimination is not always the result of perverse individual motivation, but arises out of structures and institutions that are designed in such a manner that unfairly burden already vulnerable communities. For instance, the denial of pregnancy leave in the workplace, while seemingly only targeting people who get pregnant, ultimately acts as a serious disincentive for women who are attempting to balance a career and a family.
In recent years, the Indian judiciary has also caught up with international developments, and has begun to hold that discrimination must be examined from the perspective of both intention, and effect. Unfortunately, in its Panchayati Raj judgment, the Court entirely ignored the effect of the restrictions upon the political participation of lower castes and of women, two groups that the Constitution specifically singles out for protection and advancement.
Why Vote?
Lastly, the Court failed entirely to ask itself a very basic question: why is it that we have a system of voting, and of elections? Is it to select the “best” candidates, those who can – in the words of the Court – set an “example” to the rest? Or is it to effectuate the peoples’ sovereign, democratic choice, where that choice includes the right to select a candidate who might not be the best, or the most efficient, but who faithfully and truly reflects the voters’ aspirations? At the dawn of our Constitution, by guaranteeing universal suffrage in a country racked with inequality and illiteracy, our framers took a great leap of faith. By allowing the State to artificially curtail the pool of eligible candidates whom the voters could choose from, the Court has radically undermined this faith. The judgment, in essence, is an affront to democracy.
Gautam Bhatia is a practicing lawyer in Delhi. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (OUP 2015) will be available in bookstores from 14 December. He assisted the petitioners in this case, challenging the constitutionality of the Panchayati Raj amendments.
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The rights to vote and contest
The root of the controversy is a strange anomaly in our Constitution. Despite the fact that our nation is built upon the foundation of republican democracy (which the Supreme Court has held to be part of the Constitution’s basic structure), the rights to vote and contest find no place in the list of fundamental rights guaranteed by Part III of the Constitution. While Article 326 of the Constitution does stipulate that elections must be conducted on the basis of universal suffrage, there is no “fundamental right” to vote, or to stand for election. For this reason, the challengers to Haryana and Rajasthan’s laws could not directly claim the violation of a right; instead, they argued that the law violated Article 14 of the Constitution, which guarantees equal treatment to all. Restrictions based upon education, upon debt, and upon property, placed an unjustified burden upon the class of people that they disenfranchised, and therefore, violated the right to equality.
Interestingly, on a survey of its prior jurisprudence, the Court first concluded that the right to contest elections, despite not being a fundamental right, was nonetheless a “constitutional right”. The Court did not explain the distinction between a fundamental right, a constitutional right, and a mere legal right (that can be created and taken away by the simple passage of a law). Presumably, however, a “constitutional right” occupies a place somewhat lower than a “fundamental right” (which can be curtailed only on grounds specified within the Constitution), but somewhat above a legal right.
Equality and its discontents
It is at this stage, however, that the judgment suddenly changes track. After holding that the right to contest was a constitutional right, the Court moved to examine the Article 14 question. Ordinarily, an Article 14 challenge involves a multi-layered enquiry. Once it is shown that a law creates two classes of persons, whom it treats differently, Article 14 is violated unless it can be shown that the classification follows an “intelligible differentia”, and that it bears a “rational nexus” with a legitimate governmental aim. For instance, the State may place a high rate of tax upon cigarettes. This tax, which burdens smokers more heavily than non-smokers, will be constitutional because the two categories (smokers and non-smokers) are intelligibly different, and because the burden is rationally connected to the State’s legitimate interest in promoting public health.
The key question at the bar, therefore, was whether the educational, property and debt restrictions, which created two classes of people (those who could, and those who could not contest), bore any rational nexus with a legitimate government aim. Given that the Court had already held that the right to contest was a “constitutional right”, one would have expected it to hold the government to a strict standard of proof, requiring it to adduce evidence showing that the restrictions were actually needed in the context of ensuring the integrity of the electoral process, or necessary for performing the functions asked of elected representatives.
The Court, however, did no such thing. On the question of education, it simply noted that education is required for distinguishing between right and wrong, and between good and bad. On the basis of this gross stereotype, and without examining any evidence about the actual functioning of Panchayati Raj institutions on the ground, the Court in one fell swoop disenfranchised a large section of the population who had lacked the privilege needed to access education in a country as riddled with poverty and exclusion as India.
The Court’s treatment of the debt and property (toilet) questions was even more cavalier. On the first, the Court held – astonishingly – that since elections were an expensive affair, persons in debt were unlikely to even try and contest – and that consequently, the question was more “theoretical” than real. In any event, the Court held, debt-free citizens could serve as an “example” to the rest of the community, and that therefore, there was nothing wrong with excluding the indebted from fighting elections.
Once again, the Court’s observation reflects a very basic moral and intellectual failure. The positing of indebtedness as an individual choice, which reflects personal weakness of character (which, in turn, makes one unfit to serve as an elected representative) ignores the fact that the cause of indebtedness – and primarily, rural indebtedness – is primarily structural, not individual. It could arise out of crop failure, a bad monsoon, and above all else, the absence of any viable social safety net provided by the State. Much like in the case of education, the Court perversely penalised the most vulnerable members of society for having been failed by the State and the community. The Court’s reasoning on toilets reflected a similar (classist) bias: pointing to the government’s extensive toilet program (and ignoring evidence to the contrary), the Court ended with a bizarre generalisation, stating that if persons do not possess a toilet in their house, it is not because of their povery, but because of a “lack of will.”
In sum, the Court’s analysis makes a mockery of one of the foundational rights of the Constitution: the right to equality. By upholding the deprivation of the important constitutional right to contest elections on the basis of stereotypes and generalisations, the Court has abdicated its basic role as the guardian and sentinel of fundamental rights.
Discrimination in intent and effect
There is one other sin of omission in the Court’s judgment. The restrictions, while based on ostensibly “neutral” criteria such as education, debt, and property, in effect would operate to exclude the most vulnerable sections of society – such as women, and lower castes. The discriminatory effect of seemingly neutral laws has been understood and acted upon by Courts all over the world. The highest courts of Canada, South Africa, and the United Kingdom, when scrutinising laws for compliance with the principle of non-discrimination, do not merely ask whether, by its very words, the law burdens women, or blacks, or homosexuals, but whether it does so in its effects. At the root of this is the understanding that discrimination is not always the result of perverse individual motivation, but arises out of structures and institutions that are designed in such a manner that unfairly burden already vulnerable communities. For instance, the denial of pregnancy leave in the workplace, while seemingly only targeting people who get pregnant, ultimately acts as a serious disincentive for women who are attempting to balance a career and a family.
In recent years, the Indian judiciary has also caught up with international developments, and has begun to hold that discrimination must be examined from the perspective of both intention, and effect. Unfortunately, in its Panchayati Raj judgment, the Court entirely ignored the effect of the restrictions upon the political participation of lower castes and of women, two groups that the Constitution specifically singles out for protection and advancement.
Why Vote?
Lastly, the Court failed entirely to ask itself a very basic question: why is it that we have a system of voting, and of elections? Is it to select the “best” candidates, those who can – in the words of the Court – set an “example” to the rest? Or is it to effectuate the peoples’ sovereign, democratic choice, where that choice includes the right to select a candidate who might not be the best, or the most efficient, but who faithfully and truly reflects the voters’ aspirations? At the dawn of our Constitution, by guaranteeing universal suffrage in a country racked with inequality and illiteracy, our framers took a great leap of faith. By allowing the State to artificially curtail the pool of eligible candidates whom the voters could choose from, the Court has radically undermined this faith. The judgment, in essence, is an affront to democracy.
Gautam Bhatia is a practicing lawyer in Delhi. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (OUP 2015) will be available in bookstores from 14 December. He assisted the petitioners in this case, challenging the constitutionality of the Panchayati Raj amendments.
