History of Article 326: Why did India choose Universal Adult Franchise?

Article 326 of the Indian Constitution states there every citizen of India who is not less than 18 years of age shall be entitled to be registered as a voter. The Constitution or any law made by the Parliament such as Representation of Peoples’ Act can restrict a citizen to be a registered as a voter only on the grounds of ‘non-residence, unsoundness of mind, crime or corrupt or illegal practices’. But before the Constitution was enacted there were several reservations against Article 326 of the Constitution. In this article, the author will analyse the reasons which made the founding fathers choose a universal adult franchise over the limited franchise.

India’s History and the Committee Reports

When India attained independence in August 1947, the citizens were lacking basic standards of education and literacy. They were divided broadly into different classes, linguistic and religious groups. Ivor Jennings, a constitutional thinker, advised that India must create a limited franchise. Even the Report on Indian Constitutional Reform of 1918 recommended what Ivor Jennings advised- a limited franchise. It was in 1930 that the Report on Indian Statutory Commission recommended ‘an extension of the vote to correspond to growth in adult literacy. This was a colonial logic which was based on the assumption that only the educated masses can vote in a democracy. Even the Report of the Indian Franchise Committee which was published in 1932 recommended that uneducated and illiterate masses don’t have an informed ‘outlook towards public affairs and political participation’.

The Indian organisations such as the Indian National Congress and the Muslim League were mostly divided on issues of power in the colonial administration. It was the Motilal Nehru Committee of 1928 which responded to the Commission reports by demanding a Universal Franchise for free India. The logic of the Committee report was that the exclusion of those who are kept out of franchise will be harmed and they might ‘de-legitimise’ the democratically elected government as well because those in power will not be their ‘own‘ representatives. Even the Sapru Committee in 1945 advocated for Universal Adult Franchise. The Sapru Committee observed that the substantial changes can be made only if there is full responsibility accredited to the government. There must be a fear of getting voted out from power. If those in power will know that a certain section of the society will not decide their fate in the next election, then they will not work for the welfare of that section as those citizens are denied voting rights. Hence, the ‘Indian’ committees recommended for Universal Franchise as opposed to the committees made by the Englishmen.

 De Facto exclusion of Lower Caste

During the colonial period and even before that, the citizens belonging to the so-called lower castes were not allowed to attain education and they were forced to do odd-jobs. Education was for the elite and the ‘upper castes’. Dr B.R. Ambedkar aware of this fact pressed for inclusion of lower caste in the franchise as ‘qualifications based on education and property during colonial rule meant the de facto exclusion of the lower caste’. For Ambedkar, who negotiated with the colonial rulers, right to vote became a focal point as he believed that ‘suffrage could itself serve an instructive role and that participation in political life would bring about consciousness among the lower castes’. As L.T. Hobhouse says in his work 1911 text Liberalism that “the success of democracy depends on the response of the voters to the opportunities given to them. But, conversely, the opportunities must be given in order to call forth that response”. To Ambedkar, the right to vote was not a privilege but a right! He believed that if it is treated as a privilege then “political emancipation of the un-enfranchised will be entirely at the mercy of those that are enfranchised”.  For ‘lower caste’, first, education was denied and then, the franchise was denied because of education. Hence, if education was kept as a criterion then it would have been erroneous and arbitrary.

Participatory Democracy and Adult Franchise

As Madhav Khosla in his book says “the apparent relationship between restrictions in the franchise and good governance had little truth”. A Parliament without any reform that is to say the inclusion of all sections of society is “not a blessing to anyone”. Democracy and participation are like Vikram and Betaal, where ‘democracy is solely about the expression of preferences at the ballot box’. Participation in an election is equivalent to the removal of isolation of a person because when a person casts her vote, she feels that her voice is being heard and she is there in the law-making process (through her representative) which will be governing her behaviour in a democratic society. ‘If democracy was about shaping the associations in one’s life, a limitation on suffrage would place the lower classes under the control of the powerful. It would mean that such classes would be deprived of the chance to shape interactions in their life.’ Putting limitations on suffrage is a form of coercion on someone’s right.

In Conclusion

Some members of the constituent assembly, like Thirumala Rao, considered universal adult franchise as ‘a dangerous weapon’ and Mahavir Tyagi considered it a ‘monstrous experiment’. K.T. Shah, a celebrated personality in the Assembly, stated that imposition of literacy as a requirement for the franchise would ‘ensure better governance’. But such a model will discourage the government from creating and spreading education and literacy among the illiterate classes as those classes might vote-out the government in the future elections if their demands are not met.

The Assembly ignored the idea of the limited franchise. The founding fathers chose universal adult franchise over limited franchise giving every citizen (who is above 18 years of age) a Right to Vote. A citizen has a right to express her opinion at the ballot box after every five years and choose their representatives. It is the most celebrated rights in the Indian Constitution which allow the marginalised and the ill-treated communities to choose the fate of their leaders. The country chose to tackle the issues of illiteracy among others by universal adult franchise!

[The author would like to thank Professor Madhav Khosla for his book “India’s Founding Moment: The Constitution of a Most Surprising Democracy” and the single quotes used in this article are from his book only.]

Case Study on State Assemblies of North East India: Need for Reservations for Women

[Editorial Note: Constitutional Renaissance’s Research on State assemblies of North East can be accessed here]

In this article, we conducted a research on the incumbent Members of Legislative Assembly (‘MLAs’) in eight states of North East (Assam, Tripura, Manipur, Mizoram, Arunachal Pradesh, Sikkim, Meghalaya and Nagaland) as a sample data to analyse the number of women MLA in these regions, their family backgrounds, political parties and their income, whether they are from a relatively poor or rich background (click here to see our summarised research). This research tries to answer the question “whether women are proportionally represented in the State Assemblies according to their population in the state.” As the Tribune reports, ‘the Perception of Electoral Integrity Index gave India 40/100, under the Varieties of Democracy’s Female Rights Index, with India performing its lowest in political power. In the EIU’s Democracy Index (2019), India suffered a downfall in political participation from 7.22 to 6.67.’ Currently, in-state assembly elections, there is no proportional reservation for women, unlike in the third tier of government (Panchayats) where we have 33% reservation for women. Through this research, we will be proposing that there is a requirement for proportional reservation for women in the state assemblies and in Parliament to avoid ‘political lockout’ and to keep our democracy legitimate.

Liberal Constitution and ‘political lockout’

In liberal constitutions, like that of India, the state has an indispensable duty to protect the rights of the citizens and to ensure that the freedoms and civil liberties are not compromised at any cost. Although the denial of these civil liberties presents many stability problems for democracy. But ‘political lockout’ of a section of society out of power raises concerns with regard to the whole legitimacy of the democracy. That section of society could be Scheduled Castes, Scheduled Tribes, Other Backward Classes or women as well. In the words of Tarunabh Khaitan, political lockout means ‘when a group comprehensively loses any genuine prospects of garnering even a threshold level of political power at least some of the time, it has been ‘locked out’ of power’. We have always thought of political representation debate with regard to caste and religion. But keeping a whole group, which is women, out of politics may also repose serious threat to the legitimacy of the liberal order established by the Constitution. For instance, if a particular group is kept out of power for long and they are refused to participate in decisions which affect their lives, then that group will lose faith in the democracy as their interests are not fulfilled either represented in the law-making body. We have seen in the past when committees are formed for a particular purpose but they keep out a section of a society which are the most affected section, then it raises alarming concerns about that committee, to an extend delegitimizing it (for instance, see this). Through our research, we have found that women in north-east have been kept out of power for some time and they have been denied equal participation in the law-making process. In the northeast alone, out of 498 seats (MLAs) spread over eight different states, there are only 24 elected women representatives.

The research displays a lot of flustering concerns: about the legitimacy of democracy. Scholar Choudhary argues in his book that

‘the ambition of liberal constitutionalism is that a constitutional order must both be legitimate and must enjoy the allegiance of a sufficient number of its citizens.’

If a group, be it, women, any caste, any class, is kept out of power for some time then ‘that has the capacity to destabilise the constitutional settlement’. Through our research, we saw that the women who are in politics, and who become MLAs, are relatively richer to those women who do not get into politics. The data shows that all of the women MLAs who get elected are relatively richer with assets ranging from Rs. 1,49,77,798 (of a member from Tripura) to Rs. 1,86,28,851 (of a member from Assam). The plight of a woman who is not relatively rich and is not represented in the law-making process is so much that it might make the state assemblies illegitimate and no longer liberal as it does not represent democracy, rather a ‘plutocracy’. Plutocracy is a society that is ruled or controlled by people of great wealth or income. A majority group, who is relatively poor, is kept out of power.

Research shows us that there are no single women in all the states who are ‘relatively poor’ as compared to others. The MLA with the lowest income among all of them is from Tripura (CPI(M) party) who has assets worth Rs. 7,05,142 (But we never know if this has increased after getting elected as an MLA). If a set of group, which has a defining characteristic that is relatively poor and not-men, is kept out of political power (even the minimum share of power), then ‘the guarantee of fair political opportunity has been compromised’ (see Tarun Khaitan’s research). If need to make a democracy legitimate of authority beyond the formal declaration of ‘free and fair elections’, we must address the issues of ‘political lockout’, under-representation and every group must get a chance to represent itself in the position of power.

As Geetika Dang, Research analyst from Brookings India put it ‘while Mizoram has never elected a female member Parliament [as also shown through our research even in the case of state assemblies], perhaps the starkest example of the lack of female representation comes from Nagaland that has failed to elect a single female MLA in 55 years of statehood. Rano Shaiza, a member of United Democratic Party, was the first and only woman in this state who was elected to Lok Sabha in 1977.’ Our research shows that currently in Mizoram and Nagaland there are no women MLAs in an area where the population of women is 5.41 lakhs and 9.53 lakhs respectively. There is no state in North East India which does not regularly make laws for women but the voices of the women are not heard in the halls of the legislature as there is no one to represent them. Further, the data from Manipur raises more alarming concerns as for 14.17 lakhs women, there is only one MLA.

We also found something interesting that out of these total 24 elected MLAs in the North East region, only 4 of them have some kind of political background. Rest of them did not have any sort of political background, neither their husbands nor their parents are in politics. This shows a positive trend that women are becoming independent and without any political support, they are standing up and coming into a profession which is termed as ‘dirty’ in common parlance (but we are not sure about their political connection through other connections).

Although, it is true that every woman in North-East have a right to vote guaranteed by the Constitution, but just formal declaration of equality cannot justify the inequality faced by women in the law-making process (or even in their share of political power). Hence, there is a need for a minimum reservation of seats for women in the legislative assemblies.

 Answering the ‘inequality’ in Representation: A ‘Localised’ Solution?

One of the methods to ensure women representation in North-East region is by making sure all the women come together to support other women, basically lobby the support. This needs to be done through the Gandhian methods of localising the issues and answering them through a bottoms-up approach. As Simi Malhotra, Director of the Centre for North East Studies and Policy Research, Jamia Millia Islamia, said in a Development Seminar in 2019 that, “the paternalistic baggage of ethnicity, and hence the ethnic divide within the northeastern states, has been an impediment in this direction.  At the grassroots level, the women’s movement in the northeast and associated synergies and outlets of solidarity have to be explored.” But this casts another issue which is inevitable that only those women who are relatively richer will be able to organise women and get the support like how we see in national politics. Even the first generation politicians have strong economical backing. We hardly see any MP or MLA from a relatively poor background. As we have seen through our research that most of the women who are elected as MLAs are from an economically richer section of society.

Further, this, bottoms-up approach, is not an absolute guarantee that women will be represented in the assembly because keeping women out of politics is not just a problem of political parties who do not give chance to women, but also a constitutional and a social problem. The preamble uses the words ‘We the People’ gives ourselves this constitution, but if the ‘supreme document’ cannot guarantee a group minimum power in the political machinery, then the faith of that group would be shaken and hence, the problems need constitutional insurance/reservations.

‘Political Assurance’: Proportionate Reservation

Political empowerment of women is a necessity in eliminating gender inequality and discrimination. Political power is a (sort) of guarantee to the women which will ensure that the elected regime remains legitimate addressing all the issues related to women. If we look at the historical account of the efforts made to reserve seats for women in Lok Sabha and State Assemblies, we can trace a ‘background note’ by the Law Ministry which shows that efforts made to reserve seats for women in State Assemblies and House of People always failed due to lack of political consensus.

Again in 2008, Rajya Sabha’s Department related to Parliamentary Standing Committee on Personnel, public grievances, law and justice presented its 36th Report on The Constitution (One Hundred and Eighth Amendment) Bill, 2008 in which the committee recommended for proportionate reservation for women in Lok Sabha and State Assemblies. Further AIDMK member orally stated before the committee on the need for reservation for women.

Reservation for women is not a bounty but it is an honest recognition of their contribution to social development and to the society at large.

We have seen the justices of the High Court in the past few years (as well) making “misogynistic observations” in cases involving penal sections like Rape, Assault etc. It shows the mindset of the society towards the women that is horrific and has no place in the 21st century and it enhances the need for a political assurance as ‘there is no logic in saying that women are deficient in physical, mental and intellectual capabilities. Still, they have been forced to be earmarked as the weaker sections of the society. In fact, by keeping 50 per cent of the society weaker we have made the whole society weak. In such a situation, some compulsory legislative measures need to be taken for proportionate representation of the women in the State Assemblies and the Lok Sabha as well.’

The arguments against the reservation of women state that women empowerment cannot be done through such measures, instead, we need a societal change where everyone changes from within. But such ‘Gandhian’ bottom’s up approach fails in the long run as the people do not have an incentive to change their attitude and behaviour towards the other gender. Rather, constitutional insurances which guarantee formal equality accelerates the ‘process of change’ in the society as seen in the case and experiment of Reservation of 33% for women in Panchayati Raj. The Committee which recommended the reservation for women also observed that ‘the data shows that through 1/3rd reservation of seats for women in Panchayats and Nagarpalikas, they have been able to make meaningful contributions and that the actual representation of women in Panchayati Raj institutions has gone up to 42.3% i.e., beyond the reservation percentage.’

Impossibility of Reservation in Rajya Sabha: ‘Article 80 of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through a single transferable vote.  This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on.  This system cannot accommodate the principle of reserving a certain number of seats for a particular group.  Currently, Rajya Sabha does not have a reservation for SCs and STs. Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system.’

Anyhow, leaving the Rajya Sabha aside, the Preamble of the Indian Constitution states and guarantees that every citizen must be secured of ‘equality of status and opportunity’. These commitments in the Preamble must be the objective of the legislature which they must seek to achieve while enacting an amendment for reservation of women. The data shows that the women are not represented equally in the Assemblies and there is a need for change, or else questions against the legitimacy of the democracy will strengthen. Equality for women is not just a game of mockery and gimmickry for ‘International women’s day’, but it is a continuous effort to eradicate various social, economic and political gaps between the genders.

This is a research conducted by Chaitanya Singh, Founder and Editor of Constitutional Renaissance Blog. The author would like to thank Ms Raksha Tripathy, Ms Sulagna Sarkar and Mr Yuvraj Ranolia for assisting in data analysis and research.

Guest Post: Analyzing the Scope of Voluntary Forfeiture of Political Party Membership

[This is a guest post by Rohan Bhatnagar]

The Anti Defection Law under the Tenth Schedule of the Indian Constitution ensures that legislators maintain their allegiance towards their respective political factions. This article precisely analyzes the reasons behind members voluntarily forfeiting their party’s membership and provides solutions for curbing the same.

Introduction

Defection lures the Members of the Legislature to secure powerful berths. It is used as a bait for obtaining their services. Defection weakens the Opposition and India’s democratic foundations. The Tenth Schedule of the Indian Constitution specifies voluntary forfeiture of a political party’s membership as a basis for disqualifying a Member of the Legislature. The author purports to provide precise analysis and solutions regarding the issue in this article.

Analyzing Statutory Provisions to determine Voluntary Forfeiture of Party Membership

Paragraph 2 (1) (a) of the Tenth Schedule stipulates voluntary forfeiture of political party membership as a ground for defection. According to this provision:

“2. Disqualification on ground of defection— (1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) If he has voluntarily given up his membership of such a political party. ”

The provision necessitates that members must adopt the principles of political dignity and morality for prohibiting defection within the Legislature. Diligently adhering to these principles preserves the Legislature’s reputation. Further, it affirms allegiance to one’s political affiliation. 

The expression ‘voluntarily gives up membership’ is wider than the term ‘resignation’. A member may forfeit his party membership expressly or impliedly. It is discernible through his conduct. It must be authentic and must not be made under coercion. It becomes effective upon the occurrence of such an event. 

Rival parties entice members into assessing and affirming considerations such as ministerial berths. Factors including offering pecuniary benefits, differences in ideological and policy-related affairs and a party’s functioning style constitute defections.

The Tenth Schedule also includes splits outside the floor of the House within its purview. When members form a separate faction within the same political party by voluntarily forfeiting its membership, it attracts disqualification proceedings. 

In Rajasthan, several members of the State Legislature allegedly visited Delhi to collude with the opposing faction. The Speaker disqualified them for attempting to topple the State Government. Similarly, in Madhya Pradesh and Karnataka, legislators voluntarily resigned and defected to the opposing faction, inviting disqualification under the Tenth Schedule. 

The onus of proving lies on the person alleging that such a faction created a split in the original party. The test is a split involving one third party member. The time for engineering such a split is immaterial. A floor test determines public confidence in a party’s leadership. 

Article 191 (1) disqualifies members under any one of the following heads, namely, “being chosen as” a member or for “being a member” of the House. Article 191 (2), on the other hand, uses the phrase “for being a member of the House”. Thus Article 191 (2) and Paragraph 2 of the Tenth Schedule employ the same language.  

It implies that disqualification under the Tenth Schedule differs from the other categories enunciated under Article 191 (1). Members are not barred from consequently contesting elections, thus avoiding subsequent prohibition from becoming members of the Legislature. Further, Section 36 (2) of the Representation of People Act, 1951 empowers the Returning Officer to reject a candidate’s nomination. 

The Speaker or the Chairman acts as a Tribunal in disqualification proceedings. He must act in a quasi-judicial capacity for determining the question. His decision must be based on objective facts. The 33rd Constitutional Amendment mandates that the Speaker must accept a member’s resignation. 

Thus members cannot resign unilaterally. He inquires about the resignation’s genuineness upon its receipt. ‘Genuineness’ refers to its authenticity and the members’ personal choice to resign. It may be rejected if forged or made under coercion. However, the Courts may review his decision.

The Court’s scope for judicial review under Articles 136, 226 and 227 respectively is confined to the grounds of mala fides, violation of constitutional mandate, perversity in the Speaker’s decision and non-compliance with the principles of natural justice.  

Consequently, it bars members from using privileges such as the right of publishing proceedings and its prohibition, the right of excluding strangers, disciplinary powers, the power for punishing for contempt and regulating internal proceedings if found guilty of defection. 

Other Provisions

  • The Constitution of India, 1950: Articles 75(1B), 164(1B) and 361B bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any political post from the date of disqualification till the date of expiry of his office term or his date of re-election to the legislature, whichever is earlier. 
  • The Representation of the People Act, 1951: Section 9(1) of the Representation of the People Act, 1951 mentions disloyalty to the State as a ground for disqualification. Such a Member may be disqualified for 5 years from the date of disqualification. 
  • The Members of Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 3(a) of the Rules stipulates that the ruling party’s leader must submit a written statement listing the names and particulars of his party members. Rule 4(2) states that Members must furnish information concerning their particulars as required by Form-III before the Secretary-General of the House. 
  • The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 10 and Rule 11 are framed on identical lines as Rules 3(a) and 4(2) of the Rajya Sabha Disqualification Rules, requiring the Ruling Party’s leader to submit a written statement listing the names and particulars of his party members. Further, the members shall also furnish information concerning their particulars before the Secretary-General of the House.

Using Judicial Precedents for analyzing the Scope of Voluntary Forfeiture of Party Membership

Scope of the Tenth Schedule

In Kihoto Hollohan v. Zachillhu, the Supreme Court observed the role of political parties in the electoral process and remarked that the Tenth Schedule must exist to avoid tarnishing the society’s conscience and moral fabric. The Court further observed that Paragraph 2 (1) (a) of the Schedule provided for equal application of the principles of political propriety and morality across the vast spectrum of the Legislature. 

Thus, members of the Legislature must be prohibited from defecting to restore public faith in the electoral process. The Court also struck down Paragraph 7 which barred the Court’s jurisdiction to adjudicate matters concerning disqualification of members.

The 52nd Constitutional (Amendment) Act’s purpose was ensuring that Members of the Legislature do not change their sides easily, since these acts are capable of destabilizing the system. Explanation (a) to Paragraph 2 (1) creates a deeming fiction. Courts assume a grave situation and consider that such material facts exist. They pronounce their judgment accordingly. Fully enforcing it ensures that the defecting member cannot circumvent the legal provisions. 

Preserving Freedom of Speech and Expression

The Court in Kihoto Hollohan’s case observed that the provisions of the Tenth Schedule neither violated the freedom of speech and expression nor infringed the Parliamentary and the State Legislature proceedings stipulated under Articles 105 and 194.

The scope of the expression ‘Voluntarily Given Up Membership’ 

The term ‘voluntary’ implies that the resignation is not based on threat, force or coercion. The scope of the expression ‘voluntarily given up membership’ was examined in Ravi S. Naik vs. Union of India & Ors. The Court observed that ‘voluntarily giving up membership’ cannot be equated with ‘resignation’. It has a wider connotation. Further, a member’s conduct sufficiently infers that he has voluntarily forfeited his party’ membership. 

In G. Viswanathan vs. The Hon’ble Speaker Tamil Nadu Legislative Assembly, where members of the Legislature met the Governor and submitted him a letter requesting him to dissolve the Assembly, it invited disqualification under Paragraph 2 (1) (a) of the Tenth Schedule. It was held that voluntarily giving up party membership may be express or implied. The essential condition is a member joining an opposing political faction. 

Separate Factions within the same party and Coalition Governments 

Members can be disqualified under Paragraph 2 (1) (a) of the Tenth Schedule if separate factions exist within the same political party. The time gap of such a split is immaterial. It may occur through unilateral severance or detachment from party links. However, the provision is inapplicable where a member having a different political affiliation withdraws his support to the Chief Minister in a coalition government. Its rationale is that their allegiance lies to the people and not towards members of a particular political party. 

Conclusion

Defection is a social evil striking at the foundation of the Indian democracy. It is anti-democratic and corrupt as it involves only a personal gain and not a conscientious change of heart of the legislator. Political parties must lead the way in ethical governance by not indulging such practices. Defecting members should be eternally barred from contesting elections. Intraparty splits must also be prohibited. Further, the Election Commission’s opinion in disqualification proceedings as a sine qua non in disqualification proceedings before the President or the Governor advert to their final decision restores public faith in the electoral mechanism. 

The ‘disastrous effect’ of lockdown and Abrogation of Article 370

[This is a post by Suvechha Sarkar, Contributing Member]

Introduction

The situation regarding the coronavirus pandemic had been getting worse since the last two months and is deteriorating till now. It is known to us that there is massive lockdown throughout the nation, the effects of which still persist and have been huge on the whole country including that of unemployment, hunger, migrating worker’s crisis etc. This issue has almost put the matter of the Indian Government’s revocation of the special status which was given by Article 370 of the Indian Constitution.

The indefinite curfew which was imposed on Jammu and Kashmir was the result of the extension of the state of emergency, invoked under Article 356.

What is Article 370 about?

Article 370 of the Indian Constitution gave a special status to Jammu and Kashmir. The history of it dates back to the time when India had just gained independence and there were many princely states existing independently. The Indian Government made all the other princely states to be annexed within Indian states but Jammu and Kashmir became one of the most disputed areas with Pakistan wanting its control over it and the residents opting for independent status.

To solve this dispute, it was proposed by the representatives of the constituent assembly that only the clauses of the original Instrument of Accession should be applicable on Jammu and Kashmir. The rest of the Constitution of India would not apply to them. They would be provided with autonomy and when the State’s Constituent Assembly would be formed, it would further decide on the matters of the State. Thus, the State had its own functioning Constitution. Non-residents were not allowed to buy lands in Jammu and Kashmir except the permanent residents, along with this article and under the Article 35A which was in turn in violation to the Article 14 of the Indian Constitution which stated: “Equality before the Law”.

Why the Article 370 was revoked and how was it done?

In April 2018, it was stated by the Supreme Court of India that Article 370 had gained a state of permanency as the State Constituent Assembly was ceasing to exist. It was at this point that the Government opposed the ruling of the Supreme Court and thus, claimed Article 370 as “inoperative” in spite of its sheer existence in the Constitution. On 5th August 2019, the President issued an order namely- the Constitution (Application to Jammu and Kashmir) Order, 2019 thus suspending the Constitution (Application to Jammu and Kashmir) Order, 1954. By the issuing of this Presidential Order, it was declared that all the provisions of the Indian Constitution were applicable on the State. The President’s rule was imposed thus negating the role of the state’s Governor and Jammu and Kashmir came under the list of the Union Territories.

Talking about how the revocation was made, we have to discuss the clauses which were present in the following Article. The President issued the order with the “concurrence of the Government of State of Jammu and Kashmir”. As the State Constituent Assembly ceased to exist, the President took control of the state by invoking Clause I of Article 370, which clearly stated that in this situation the President had the power to modify and change the subjects related to Jammu and Kashmir on the Indian Constitution. In order to carry out this power, the first change was made by him in Article 367 and a new clause was added because this Article dealt with the interpretation of the Indian Constitution.

The phrase “Constituent Assembly of the State” was replaced with “the Legislative Assembly of the State”. As the State Constituent Assembly was suspended, the Legislative Assembly needed to be referenced on the following matter, to which the Order stated that any reference made to the Legislative Assembly would be interpreted as a reference made to the Governor of Jammu and Kashmir. The Governor of the State is appointed by the President, who in turn works mostly on the advice of the Cabinet and the Prime Minister. Consequently, it would mean that the central Government would be functioning in place of the State Legislative Assembly.

The passing of the Resolution

The Home Minister of India moved the Resolution in the house of Rajya Sabha in order to provide the President with any kind of additional recommendations or suggestions on the Order. The Resolution was being highly debated and was passed by the Rajya Sabha with 125 votes i.e., 67% of the total votes in its approbation on 5th August 2019 and with 61 votes i.e., 33% of the total votes against it.

The bill was sent to the Lok Sabha for its reorganisation and after much debate, the bill was passed with 370 votes i.e., 86% of the total votes, in its favour and 17 votes i.e., 14% of the total votes against it on the 6th of August, 2019. Alongside with the resolution for reorganisation, the resolution which recommended the revocation of Article 370 was passed with 351 votes in its approbation and 72 against it.

Part II of the Jammu and Kashmir Reorganisation Act of 2019 clearly stated that:

3. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— “Kargil and Leh districts”, and thereupon the said territories shall cease to form part of the existing State of Jammu and Kashmir.

4. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.

This part stated that the governance of the state would directly go to the President thus taking away the autonomous power of the State, which was now turned into a Union Territory.

The effects of lockdown in the “Heaven on Earth”

A year has passed with the revocation of Article 370. The conditions in Jammu and Kashmir have not got any better. Long before the lockdown due to pandemic situation, the state had been going through several curfews, lockdowns, restrictions on communication mediums and also the infringement of various fundamental rights due to the imposition of the State of Emergency under Article 356. Various political leaders had been arrested including the previous chief minister of the State.

The revocation of autonomy of the State had spurred up the residents which led to massive protests and widespread unrest. The Right to access the internet of the state was being taken away as the connection was being cut off except for some of the working agencies. This infringed their Right to Privacy. It subsequently has separated the whole valley from the rest of India as well as the rest of the world. There are no particular judgements by the Supreme Court regarding the question of whether the Right to access the internet is a fundamental right or whether it falls under the Right to Privacy. In the famous case of Faheema Shirin v. State of Kerala and ORS, it was stated that it falls under the Right to Education and Privacy under Article 26 and Article 21 of the Indian Constitution.

The voice of Kashmir has been further diminished by the limitations imposed on the newspapers and press release there, thus infringing the Right to information of the people living there. The Indian Supreme Court had been flooded with several pleas regarding the lockdown which mainly consists of petitions of Habeas Corpus. While some of the pleas have been heard, several others are still pending which consists of petitions challenging the revocation of Article 370, and against the atrocities which are being committed in the State.

Conclusion

There is no free flow of information, no internet or broadband connection, no proper security or no proper means for the people of Jammu and Kashmir till today, even after more than 1 year of the revocation has passed away. The “Heaven on Earth” may be easily compared to “hell” at the present.

The whole of India has been silent and the world is still unaware of the problems which the residents are facing. Human Rights are being threatened each and every day. Being citizens of the same country, it becomes our duty to stand beside our fellow brothers and sisters instead of turning a blind eye. The delays in the hearing of the Petitions, the ignorance of the population has been the big question as to when will the lockdown in Jammu and Kashmir be lifted and when will the “Paradise” return to its previous beautiful and peaceful state.

(The views are personal)

Executive Aggrandisement and Democratic Backsliding in India: A Conceptual Analysis

In the starting of the year 2020, there was a headline that “India falls to 51st position in Democratic Index” by a survey done by the Economist’s Intelligence Unit. Further back in 2018, the Indian National Congress, the main opposition party in the Parliament, launched a campaign called “Save the Constitution”. There are many incidents and events wherein the People claim that democracy is dying. Is democracy really crumbling?

The Constitution of India is based on democratic principles and the very democracy has been jeopardised by the elected government in the past (as well). But now it is not like the 20th century when we saw Mrs Gandhi’s emergency of 1975 and military coup in Pakistan (coup d’état by Musharraf), which shattered the democracy and the democratic principles of India and her adjoining neighbour. But how is the situation in 2020 different from 1975?  What we are witnessing now is not ‘shattering’ of the democracy, it is more like a gradual erosion. A democratic decay.

The Indian Constitution has established three organs of the state: Judiciary, legislature and executive, each of them are assigned a definitive sphere of powers and functions. To check upon these institutions, we have the idea of “Constitutionalism”— which is, various sorts of accountability demand to keep a check on the powers of the organs of the state in the form of rights against the state, limiting the scope of the authority of the organs among various other checks. Herein, a question arises, despite all these checks then how is the democracy backsliding or decaying in India in 2020?

Executive Aggrandisement and democratic backsliding

Democratic backsliding, as Bermeo says, is “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy”, which basically means that when the state eliminates or dismantles the aforementioned “checks” on its powers to sustain themselves in power. Backsliding happens precisely where oppositions are already incapacitated by electoral failures and other internal divisions like lack of leadership. In parliamentary democracies, like India, the political executive is discerned as the “sole repository” of the democratic mandate, which is the Modi-led-Cabinet in India (as the Executive’s political party, i.e. the BJP is mostly in majority in the legislature). In the book, “Constitutional Democracy in Crisis?”, Elkins states that “most, if not all, of the concerns regarding constitutional democracy, has to do with an executive”. When this executive weakens the checks on executive power by a series of institutional changes that hamper the power of opposition (accountability seeking) forces to challenge executive preferences, this ‘kind of’ democratic backsliding is called “Executive Aggrandisement”. The values of constitutionalism and democracy are hampered by the aggrandisement of the executive; institutional accountability is the key and inseparable from the “efficient institutional design”. The change brought by the democratically elected executive in weakening the checks upon itself is often done by labelling independent checking institutions as “anti-establishment/anti-government” or by “packing them with the cadre of their political party”, as reflected by Professor Khaitan of Oxford University. When there is a crisis of executive accountability, we can witness gradual erosion of accountability-seeking mechanisms such as 1. Electoral accountability (there is always fear and probability of electoral fraud and tampering, see here and here); 2. Accountability by the judiciary (power of judicial review, see Article 13) and legislature (see Article 74 and read here); and 3. Accountability to civil societies, media and the academics (read here and here).

The accountability to the legislature is mostly done away it, as the majority party-led by the Executive always controls the House and there is a little scope for the opposition to come forward and create pressure on the executive. Furthermore, in India, accountability to the “upper house or the Rajya Sabha” is also overridden by introducing important bills as ‘money bills’ (see Aadhar Act). The judiciary is already restricted due to many reasons such as it gets to ‘review’ the orders of the executive ex-post facto, it may be inefficient or be overworked and surprisingly, the Apex Court has become an “Executive Court” in India already, as Bhatia calls it. Hence, the final check on the Executive must come from the electorate, media, civil societies and academics as they are neither appointed nor elected by the executive. These external checks are really necessary to occlude the executive from backsliding democracy. However, the executive tends to tempt the electorates by showing them (illusory) short term promises and ‘cheaper methods’ like caste and communal politics, reservation etc to coax the voters to vote for their political party.

How is ‘executive aggrandisement’ done?

The most visible democratic backsliding can be seen when there is an attempt to side-line the right to free speech and expression (such as filing FIRs against journalists and activists) and judicial autonomy (such as transfers of the constitutional court’s judges who pass orders ‘against’ the executive and further, the ‘micro-assaults’ of the executive cannot be assessed individually by the Judiciary). Other ways are also brought in force such as blocking websites (read here and here), discouraging dissent, and enactment of draconian laws (which are usually against the principle of ‘innocent until proven guilty’). Most bizarre and not-so-open way of democratic backsliding lies where when the ‘big media outlets’ are often owned (through holding companies) by those businesses which are dependent on government contracts. Hence, there rises a conundrum for the journalist between freedom of speech and expression (and) a job, basically a Hobbesian choice.

There are certainly other ways in which backsliding is done and the amusing thing about these particular ways is that these issues seem is to be ‘normal’, when seen individually, for any mass protests and any individual or collective dissent. Those who speak against the executive, either any former judge or any opposition party member, is framed as a person having “special interests” or in general anti-national, a common term in India. Those who work for the disadvantaged groups and question the executive for its actions are banned and booked under state-made draconian laws. Many times, there remains a lack of collective action towards the ‘ill-actions’ of the government and the majority of the population is lost in the trance (of government’s short-sighted actions like the building of various religious congregations).

Furthermore, the “democratically” elected executive tends to make laws (which are usually passed without debates and discussions) which goes against the very basic human rights of the individuals, but challenging such laws is “highly risky” as the person who challenges may face many barriers such as, first, she is called a ‘foreign element’ for challenging or raising the voice against the “law”, second, attributing ‘nefarious purpose’ to the law is often difficult (as the intention of the Parliament cannot be brought under Judicial scrutiny) and third, all the changes made by the law has some ambiguous justification ( as the “intention” is to deepen the democracy, instead of destroying it). The “rules” of law are a major setback for those who want to come together and raise their voices against the actions taken by the executive. The laws framed to govern and protect the individuals are used against those very individuals.

All this is worrisome because of the reason that these changes came into force by the democratically elected government with a strong majority in the Parliament and the popular support of the masses. In a Democracy, where the executive doesn’t have any check is more likely to erode the very principles of democracy by taking one piece at a time from the “collage of institutions”.

A way forward?

This aggrandisement happens due to lack of devout action plan, nor any consensus, within the opposition party, media, academia and the citizens, to impart cohesion. The separation of opinion amidst the checkers of the executive lead to the point where democracy stands alone in a lonely corner. There needs to be a collective voice against the actions of the executive to prevent backsliding. As Sunil Khilnani (The Idea of India) says fasts, silences, penances are just techniques of an eccentric parent but are not designed to nourish the accountability of a democratic institution. In the absence of any institutional challenges to the executive, we [as citizens] should take lessons from the pre-independence Congress party wherein the mass organisation of people became the key to establish the democratic constitution. It shall be successful, as we already have seen how mass mobilisation of The People have also helped in reversing the most erroneous decisions of the Supreme Court (For example Mathura Rape Case).

There must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny. Other institutions which are not tied to the executive through the umbilical cord (political party) can work efficiently to hold the executive accountable for its actions and they must inform citizens about the actions of the executive in an unbiased way. As professor Khaitan says the reason for informing citizens will help the voters, as “they [voters] cannot exercise their function of holding governments to account at the ballot box unless they are properly informed”.

There needs to be scrutiny and review of every action of the government as ‘the very rules of the game are being changed’ now. We the People of India need to come together to “retrieve and build constitutionalism without the courts”, as the Constitution is so much more than just the Courts (as we all see it as). To conclude, as said by professor Khaitan said,

“Democracy is being killed by a thousand cuts—incrementally to avoid the noise and mess of big guns—but systemically. These mortal cuts are being inflicted by democrats themselves, who are justifying their expediency in the name of democracy itself (as surgery, rather than assault)”

[Note: If would like to read more extensive on this topic, then kindly proceed to Constitution Database page (Under the heading: Constitutionalism)]