Democracy and Free and Fair Elections

Article 326, headed Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage, is the democratic promise in its plainest form: "The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage."

Read together they pose the problem. Article 368(1) says "any provision", and article 326 is a provision. Can Parliament repeal adult suffrage by a two-thirds majority?

Broken down

Article 326 does four things.

1. It fixes the electorate for two Houses only, the House of the People and each State Legislative Assembly. The Rajya Sabha and the Legislative Councils are chosen otherwise.
2. It sets the qualification: a citizen of India "not less than eighteen years" of age on the date fixed. The figure was twenty-one until the Sixty-first Amendment substituted eighteen with effect from 28 March 1989.
3. It permits four disqualifications and no more: non-residence, unsoundness of mind, crime, and corrupt or illegal practice.
4. It leaves the machinery to statute. A qualified person is "entitled to be registered as a voter", and registration is done under a law made under article 327, dealt with in [Articles 325 to 329].

Two further clauses of article 368 show Parliament trying to shut the question down. Clauses (4) and (5), inserted by the Forty-second Amendment in 1976, said that no amendment "shall be called in question in any court on any ground" and that "there shall be no limitation whatever on the constituent power of Parliament". The Legislative Department's footnote records that the section which inserted them "has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others". That report has not been read here, so the case is named without a citation.

The doctrine

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225, decided 24 April 1973. The head of a Kerala mutt petitioned under article 32 against the Kerala Land Reforms Act 1963. While the petition was pending the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments were passed, and the challenge became a challenge to them. The report describes the Bench as "a special bench of thirteen Judges, larger than any previous bench".

Held. The amending power in article 368 is neither narrow nor unlimited. Sikri C.J. held that "every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same", listing as basic features the supremacy of the Constitution, the "Republican and Democratic form of Government", its secular character, separation of powers and its federal character. Shelat and Grover JJ. gave a list of six, again including "Republican and Democratic form of Government". Khanna J. put it at its sharpest: "amendment" postulates that the old Constitution survives without loss of its identity, and "it would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha."

Why it matters. Democracy is not merely a value the Preamble announces, it is a limit on the amending power. Note what Kesavananda did not do. It struck down no election law and settled no election question. It gave a doctrine, and the doctrine waited two years for a case.

The doctrine applied

Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347, decided 7 November 1975. The Allahabad High Court had held the Prime Minister's election void for corrupt practice. While her appeal was pending, Parliament passed the Thirty-ninth Amendment, inserting article 329A. Clause (4) provided that no law made before the amendment should apply to the election of a person holding the office of Prime Minister or Speaker, that such an election "shall not be deemed to be void or ever to have become void", and that any court order to the contrary "shall be and shall be deemed always to have been void and of no effect".

Held. Clause (4) was unconstitutional and void. The Judges did not agree on a single ground, which is itself worth learning. Khanna J. struck it down "on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy": it abolished the forum without providing another, and "extinguishes both the right and the remedy to challenge the validity of the aforesaid election". Chandrachud J. held the clause "an outright negation of the right of equality conferred by Article 14", the Prime Minister's unique position being an intelligible differentia with no nexus to a law placing her election above all law. Ray C.J. held that the validation was "not by applying any law and it, therefore, offends rule of law". Mathew J. agreed that clause (4) was bad.

Why it matters. A constitutional amendment was struck down for the first time, and elections were the ground. The vice was not that the amendment favoured one person, though it did; it was that it removed both right and remedy, so that however gross the malpractice the election could not be questioned. The Court nonetheless allowed the appeal and upheld the election under the Representation of the People Act as amended, because ordinary legislation is tested for competence and Part III, not for basic structure. And article 329A did not survive: the Constitution's own text records it as "Omitted by the Constitution (Forty-fourth Amendment) Act, 1978" with effect from 20 June 1979.

The doctrine restated

Facts. Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686, 1992 SCC SUPL. (2) 651, decided 18 February 1992. The Fifty-second Amendment had inserted the Tenth Schedule, disqualifying a legislator for defection, giving the Speaker the final word under paragraph 6 and, by paragraph 7, ousting the jurisdiction of every court. Petitions challenged the Amendment as destructive of the basic structure and as passed without the ratification the proviso to article 368(2) requires.

Held. Unanimously, that paragraph 7 excluded the jurisdiction of all courts and so changed the operation of articles 136, 226 and 227, and the Bill therefore "would require ratification in accordance with the proviso to Articles 368(2)". The majority held paragraph 7 alone void and severable, leaving the Speaker's decision under paragraph 6 that of a tribunal open to judicial review; the minority held the whole Amendment void for want of ratification. On democracy the majority said: "Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution. So is the need to protect and sustain the purity of the electoral process." It also adopted the observation in Jyoti Basu, whose report has not been read here and which is named without a citation, that a right to elect "is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right."

Why it matters. It supplies the two halves a good answer needs. Democracy is a basic feature and periodic elections are essential to it; but the right to vote is statutory, not fundamental. A student who learns one writes half an answer. The Tenth Schedule is worked in [Defection and the Tenth Schedule].

What it does NOT mean

It does not mean an election law is tested for basic structure. Only a constitutional amendment is. Indira Nehru Gandhi is explicit: the amending Acts of 1974 and 1975 were upheld because ordinary laws answer two tests only, legislative competence and article 13.

It does not mean the right to vote is a fundamental right. Kihoto Hollohan adopts the contrary. What is constitutionally protected is the scheme: adult suffrage under article 326, one general electoral roll under article 325, a Commission under article 324. The individual right to be registered and to poll comes from statute made under article 327.

It does not mean Parliament cannot legislate about elections. It can, and article 327 tells it to. What it cannot do, on Indira Nehru Gandhi, is leave a particular election immune from any law and any forum.

A worked example

Parliament passes a constitutional amendment, by the majority article 368(2) requires, providing that the term of the House of the People shall be twelve years and that the validity of the amendment shall not be questioned in any court. Meera, a voter, petitions under article 32.

Step one, is there power to amend? Yes. Article 368(1) covers "any provision of this Constitution", and the article fixing the term of the House is a provision like any other.

Step two, was the procedure followed? Check clause (2), then the proviso: does the amendment change anything in the five listed classes, so that ratification by one-half of the State Legislatures was needed too? On Kihoto Hollohan the proviso is a constitutional limitation on the power, and non-compliance is fatal to at least the offending part.

Step three, is the ouster clause good? No. On Kihoto Hollohan a provision excluding the jurisdiction of every court changes the operation of articles 136, 226 and 227 and attracts the proviso; and clauses (4) and (5) of article 368 were themselves declared invalid.

Step four, does the amendment damage the basic structure? This is the real question. Periodic elections are essential to the democratic system on Kihoto Hollohan, and the republican and democratic form of Government is a basic feature on Kesavananda. A twelve-year term does not abolish elections, so Meera must argue degree: at what interval does an election stop being periodic? The doctrine gives no bright line, which is the standing criticism of it.

Step five, what is the relief? A declaration that the amendment is void so far as it damages the basic structure. Severance may not be available: in Indira Nehru Gandhi clause (4) was struck down entire because its parts were "so integrally connected and linked with each other".

Quick revision

• Article 368(1): Parliament may amend "any provision of this Constitution" by the procedure in clause (2); the proviso adds State ratification for five classes.
• Kesavananda (1973), thirteen judges: the power does not extend to damaging or destroying the basic structure. Sikri C.J.'s list names the republican and democratic form of Government. Khanna J.: amendment cannot "change the democratic government into dictatorship or hereditary monarchy" nor abolish the Lok Sabha and the Rajya Sabha.
• Indira Nehru Gandhi (1975): clause (4) of article 329A struck down, the first amendment ever held void. Grounds differed: free and fair elections (Khanna J.), article 14 (Chandrachud J.), rule of law (Ray C.J.).
• The vice was extinguishing both right and remedy. Article 329A was itself omitted by the Forty-fourth Amendment, with effect from 20 June 1979.
• Kihoto Hollohan (1992): democracy is a basic feature; elections at regular prescribed intervals are essential to it; the purity of the electoral process must be protected. But the right to elect is a statutory right.
• Ordinary election legislation is not tested for basic structure, only for competence and Part III.
• Article 326: adult suffrage, eighteen years since the Sixty-first Amendment, four permitted disqualifications.

Test yourself

1. State the holding in Kesavananda on the amending power, and give two of the basic features the judgments list.

2. What exactly did clause (4) of article 329A do, and on what different grounds did Khanna J., Chandrachud J. and Ray C.J. hold it void?

3. Indira Nehru Gandhi struck down an amendment but upheld the election. Explain why there is no contradiction.

4. "Democracy is a basic feature but the right to vote is not a fundamental right." Reconcile the two propositions using Kihoto Hollohan.

5. A constitutional amendment provides that elections to a State Assembly shall be conducted by a committee of Ministers instead of the Election Commission. Set out the argument you would make and the case you would put first.