In March, the Supreme Court requested the government’s views on a PIL seeking to impose a lifetime ban on contesting elections for those sentenced to imprisonment for more than two years. Currently, the ban extends to six years after the completion of a sentence. The proposed change, which is supported by the Election Commission, would effectively end the electoral career of many prominent political leaders.
This case could be the latest amongst a series of Supreme Court decisions modifying the electoral process in recent years: the court has held that citizens are entitled to cast a ‘none of the above’ vote, that prisoners are disqualified from standing for election during periods of incarceration, that the concealment of criminal antecedents constitutes a corrupt practice under the law, and that electoral appeals to caste and religion are impermissible.
Around the turn of the century, the court increasingly began making decisions addressing the ‘criminalisation of politics’. Early decisions focussed on disclosure and transparent process — ensuring, for instance, that candidates declared assets and liabilities, educational qualifications, and criminal antecedents. Yet, it was left to the wisdom of the electorate to decide whom to vote for. Similarly, parties were tasked with determining whether it would be appropriate to field candidates with criminal antecedents.
Disquieting developments
More recently, however, the court has gone further; it has attempted to gradually reshape the ballot. At first glance, these come across as welcome developments — after all, who could fault the court for preventing prisoners or those with criminal records from contesting elections? Yet, they raise fundamental questions about the nature of our democracy, and are deeply disquieting for a number of reasons.
First, the court has increasingly used the regrettable, caste-based taxonomy of ‘purity’ and ‘pollution’ in its decisions. For example, in 2013, it endorsed the decision of the Patna High Court observing that candidates with criminal records pollute the electoral process, affect the sanctity of elections and taint democracy. The court’s language is symptomatic of its conception of its own role — as a sentinel of democracy seeking to ‘disinfect’ the electoral process. This is more than a poor choice of words. The court has the power to frame debate and influence the language of argument in ways that perhaps no other institution does.
Second, the court’s recent decisions have meant that whether the right to vote is a constitutional right or merely a statutory privilege is still a matter of contestation. Article 326 of the Constitution provides for universal adult suffrage, but does not specifically mention the right to vote. Rights that are not explicitly set out in the Constitution, such as the right to privacy, have routinely been impliedly read into the text. But the court has refused to categorically recognise the right to vote as an inalienable constitutional right, frequently holding that it is a privilege that can be taken away as easily as it is granted.
It is disconcerting that the court still does not clearly acknowledge a constitutional right to vote. Participation in the electoral process is often seen as a gateway right, or a ‘right of rights’. Our only response to citizens whose candidate of choice has not been elected is to point towards their right to exercise that choice in the first place. The absence of a constitutional right to vote has real consequences, for it makes it easier to impose wide restrictions on who can exercise that right, and the circumstances in which they may do so.
Closely tied to this refusal to clearly recognise a constitutional right to vote is the court’s endorsement of the embargo on the voting rights of prisoners. Blanket prohibitions on voting are the surest way of alienating a political community. The embargo is particularly draconian, for all prisoners, regardless of the seriousness of their offences or the length of their sentences, are denied the vote. Moreover, prisoners awaiting trial are also denied this ‘privilege’.
It is one thing for the court to introduce transparency-promoting measures with a view to allowing change to take place organically, but quite another to change the rules of the game to match its conception of the ideal electoral system. The right to vote and the right to contest elections are fundamental markers of citizenship in a constitutional democracy. Incrementally yet decisively, the court is changing what it means to be a citizen of this country. It may soon take another step in that perilous direction.
Chintan Chandrachud is an Associate at Quinn Emanuel Urquhart & Sullivan LLP, London.
