Indian Supreme Court in Association for Democratic Reforms v Union of India unanimously overruled the Scheme of Electoral Bonds as unconstitutional due to violation of the right to information of voters under 19(1)(a) of the Constitution. The court then, deviating from its standard practice of not matching up its rhetoric with equally efficacious remedy, gave a slew of directions to disclose the donations received by political parties from electoral bonds and identity of donors alike, which invariably provided a pattern of corporate interests trying to influence public policy and criminal processes through large scale corporate donations. 

While much of the commentary around the judgment has been built from the angle of election reforms and privacy in political funding, through this piece, it is argued that central to the judgment was an affirmation of a central feature of Representative Democracy, i.e., Equal Access to Political Processes.

The article first gives a brief primer into what entails such a representation-reinforcement judicial review as advocated for by John Hart Ely. It then tries to parse through the distorting effects the Electoral Bond Scheme had on access and representation of the common public within political processes. Finally, the article analyses the SC’s judgment as an affirmation of equal concern and respect for the common citizenry within the political representation process. Ultimately, the authors try to argue that in declaring the scheme unconstitutional, SC has tried to cure possible maladministration and blockage of political processes to favour large corporate interests over the interests of the little man of politics. 

Process Oriented Judicial Review – A Primer

The primary motivation for Ely in laying down a new framework for judicial review was a three-fold concern which he sought to balance –

1. A readily identifiable, objectively valid principle of judicial review (to ensure judges cannot import their own subjective values into the statutes/constitution in the garb of interpretation) 

2. The anti-democratic nature of judicial review (as it involves checking the exercise of  representatives selected by the people themselves, i.e., a revision of popular wisdom).

3. The counter-majoritarian nature of the judiciary (emphasized the importance of the protection it afforded the minorities from majoritarian imposition). 

For Ely, an interpretivist approach to judicial interpretation, which was purely a search for values within the constitutional text itself, was unable to fulfil a constitution’s enduring promise as, for certain provisions, which necessitated to look beyond the text. A non-interpretivist approach based upon subjective value-imposition equally had the ability to provide courts unlimited discretionary power and to overrule popular decisions based on personal value preferences. The alternative he advocates then is a process-oriented approach led by Warren Court. 

This process-oriented approach was based on two basic premises: – 

• Political Process Participation:- The fundamental promise of such a process approach is to ensure that the political process – which is where values are properly identified, weighed, and contested – is open to all viewpoints for equal respect and concern. 

The assumption behind Ely’s faith in this idea of a representative government in which a few reflect the interests of the many was “Association of Interests,” i.e., while representatives do have some superior facilities and certain privileges, they are, nevertheless, a part of the “people.” The implication is that they would live and be bound by the same laws and policies and not create exemptions for themselves, which would then act as insurance against oppressive legislation.

• Minority Protection:- The other broader concern was that if political officials choose to provide or protect some values for some people, they must ensure that everyone was being similarly accommodated or give a rational justification for the discrimination. 

Ely’s first imperative of judicial review, i.e., ensuring access to the political process, is based on the assumption that access by itself would lead to conciliation and serve the interests of minorities and majority alike (pluralism); however, Ely’s second premise acknowledges that this assumption isn’t necessarily true especially when the inequalities which were supposed to end are still prevalent. 

The majority then can receive legitimacy by providing access to minorities, but because their political power is marginal, their interests can be ignored and laws can be made to their detriment without a genuine threat to their re-election, i.e., despite them having access to political power, their representation is effectively denied. This essentially means that these minorities are blocked from creating an association of interests by building on their differences and excluding them (while not formally but in effective realization of their process rights). 

A better idea was then evolved, which extended the association of interest theory to ensure that various minorities are not deliberately pushed out of the system and are excluded from the political process. 

This is the idea of “virtual representation,” i.e., the interests of those with political power must be tied to those without political power. This, however, doesn’t mean that protection should be offered only to those minorities who are formally disenfranchised but also extended to minorities who, though enfranchised formally, lack the political bargaining power to actually affect the policies in any meaningful way, like women, LGBTQ+ communities. For Ely, then, an additional role of his framework is to ensure that the legislature cannot practice this exclusion from the association of interests of minorities by removing blockages that inhibit their participation through playing on stigma or prejudices. 

Translating this theory into constitutional language thus, Ely argued that constitutions do not reflect a singular belief in laying down substantive values like Equality or Liberty; while substantive values are in themselves important for a transitional document like a constitution, the focus of the constitutions is on providing for the process which provides and guards such substantive values like by establishing representative government or by fourth-branch regulatory institutions, i.e., a belief in processes to achieve the values themselves. 

In this context, the abolition of discriminatory treatment or Affirmative Action can be seen as an instance of ensuring the process of equal representation in decision-making is secured; fourth-branch institutions can be seen as instances of ensuring separation of powers is maintained, and one branch does not over-impose itself by creating exceptions for itself. The guarantee of Freedom of speech and expression herein can be seen as ensuring that the governmental processes are open to varied perspectives and views and act as a check on the state when it goes out of bounds.

A concern for procedural fairness then lays down the groundwork for Ely’s theory of judicial review – Courts should only interfere when the political space is malfunctioning, i.e., when the process cannot be trusted as it is – 

a. It is choking off channels of political change. 

This demands that courts play an active role against political entrenchment, which is antithetical to the utility of representation itself. This essentially means guarding against explicit acts of entrenchment like partisan implementation of criminal laws to jail political opposition close on the heels of a national election or voter intimidation/ disenfranchisement but also being vigilant against implicit acts of entrenchment. 

Mark Tushnet builds on the same by arguing for safeguards against the propensity of the ruling dispensation to make decisions that have an inter-temporal nature, i.e., decisions that are enacted keeping in mind short-term electoral gain without necessarily considering their long-term effects. They are different from mere populist policies like free housing or welfare services and correspond directly to modifying the democratic structure by manipulating election rules or threatening the fairness of the elections indirectly (like partisan gerrymandering), intending to erect an impenetrable wall around the party in power. 

b. The majority is systematically disadvantaging minorities out of simple prejudice and refuses to recognize their commonality of interests. 

This demands when an unusual deprivation has been placed on a section of people because of their race, religion, politics, sex, or an official’s dislike; it is a denial of due process and a malfunction in the system that needs to be rejected and the process started over. Note that the theory isn’t concerned with outcomes, i.e., the same outcome could/couldn’t result from a properly functioning system, but in a malfunctioning system, it is gamed to produce the undesirable outcome, which is always wrong.

An illustration of such a judicial role can be found in the Benett Coleman case, wherein newsprint policy had an equally imperative motivation of conserving wood pulp, was overruled by the Supreme Court because the print policy was designed in such a way that newspapers which were critical of Mrs Gandhi were systematically targeted and their circulation restricted to disadvantage them.

To summarize thus, Ely’s Representation-Reinforcement Approach to Judicial Review would perform two inter-connected functions –

1. Providing equal access to varied and diverse communities to represent their interests.  

2. Preventing blockages to political processes, i.e., asking for rational justifications for discriminatory treatment or invalidating them entirely. 

Prabhash is a fourth-year B.A.LL.B. student at NALSAR University of Law. His interest areas include constitutional law, public policy, and political science. Praseem is also a fourth-year B.A. LL.B. student at NALSAR University of Law. His areas of interest include human rights and general corporate and commercial laws.

[Ed. Note: Edited by Jeetendra Vishwakarma and published by Baibhav Mishra from the Student Editorial Team]

The Part II of this series can be accessed here.