The Courts and the Constitution – 2023 in Review, Panel 1: Electoral Laws and Democratic Legitimacy 


The panel discussion on “Electoral Laws and Democratic Legitimacy” provided an insightful analysis of India’s electoral governance, highlighting challenges like executive overreach and institutional weaknesses. The panel comprised of Dr. Anupama Roy (Professor, Jawaharlal Nehru University), Ms. Jasmine Joseph (Assistant Professor, NLSIU), Mr. Nizam Pasha (Advocate, Supreme Court of India), and Mr. Aradhya Sethia (Ph.D. Candidate, University of Cambridge), and the discussion was moderated by Mr. Aymen Mohammed (NALSAR).

Speaker 1 – Dr. Anupama Roy (Professor, Jawaharlal Nehru University)

Dr. Anupama Roy provided insights into the role of the Election Commission of India (“ECI”) and the constitutional framework surrounding electoral democracy. She discussed the historical context of electoral democracy, tracing it back to the Constituent Assembly (“CA”) debates. She noted that the CA initially did not see electoral democracy as a design problem but put its faith in parliamentary democracy to address challenges. To this end, it adopted a parliamentary style of democracy with a first-past-the-post voting system.

She highlighted the notion of legal and electoral exceptionalism, which suggests that the governance of election times should be exceptional because they are a time of heightened political activity. This exceptional governance should be guided by normative concerns such as democratic principles, ensuring fairness, transparency, and accountability in the electoral process, particularly those related to deliberative democracy. 

Throughout her speech, she referenced several case laws to illustrate her point, primarily Association for Democratic Reforms v. Union of India (2024), in which the electoral bond scheme was held to be unconstitutional, and Anoop Baranwal v. Union of India (2023) (“Anoop Baranwal”), in which the Supreme Court (“SC”) had addressed concerns regarding the erosion of the ECI’s independence by the executive’s heavy influence over appointments. 

She elucidated the trajectory of Article 324 (on the role of the Election Commission) through judicial interpretations, highlighting contradictory tendencies in its application. She referenced landmark cases such as the People’s Union for Civil Liberties (PUCL) v. Union of India (2003) and the Anoop Baranwal case, which underscore the significance of transparency and accountability in the electoral process. She argued that while Article 324 has been “entrenched” through judicial pronouncements, there remains a trajectory of “containment” and “constriction”, particularly evident in the appointment of the Chief Election Commissioner (“CEC”) and Election Commissioners (“ECs”) where the SC has intervened (in Anoop Baranwal) to prevent the executive from being able to dictate appointments. This trajectory reflects tensions between the autonomy of the ECI and the influence of the executive in deciding the conduct of elections.

She then delved into the controversy surrounding the Representation of the People Act, 1951 (“RPA”), focusing on provisions related to the disqualification of candidates with criminal backgrounds. She cited cases such as Lily Thomas v. Union of India (2013) and Manoj Narula v. Union of India (2014), which addressed the issue of criminalisation of politics and transparency in electoral processes. She highlighted the judiciary’s role in preventing abuse by ensuring compliance with transparency measures and promoting accountability among political parties. 

To this end, she highlighted the SC’s efforts to ensure the right to know about candidates’ criminal antecedents, citing cases like Brajesh Singh v. Sunil Arora (2021) and subsequent directions from courts for compliance mechanisms. The court mandated political parties to publish candidates’ criminal histories within 48 hours of selection, replacing the previous requirement of at least two weeks before nominations. It also directed the ECI to create a mobile app for easy voter access and issued directives for website publication and awareness campaigns to enhance electoral transparency and accountability.

She also addressed the integration of Aadhaar into the electoral ecosystem, which has raised concerns among activists regarding possible disenfranchisement, coercion, and privacy issues. While the ECI maintains that providing Aadhaar is optional, the process is facilitated through Form 6B, introduced by the Election Laws (Amendment) Act, 2021. Some voters even reported being told that not providing their Aadhaar details could result in their names being deleted from voter rolls. Additionally, privacy concerns also arise from potential privacy breaches and the risk of political micro-targeting. The SC issued a notice to the government on a challenge to the linking exercise, highlighting the need to address these concerns, especially in areas where alternative documents may not be readily available.

Dr. Roy also emphasised the normative context of electoral governance, emphasising the need to address design challenges, promote transparency, and decriminalise politics. She lamented that the entire value of a vote in India has, in many ways, been demolished. 

Speaker 2 – Ms. Jasmine Joseph (Assistant Professor, NLSIU)

Ms. Jasmine Joseph opened with a stark observation: democracy is in decline globally, threatened by populist leaders, declining pluralism, and unchecked authoritarianism. She emphasised that this decline jeopardises core democratic values like freedom, transparency, and accountability. 

Turning to the integrity of elections, she emphasized the crucial role of Electoral Management Bodies (“EMBs”), responsible for organising and overseeing elections. Jasmine explained two models of EMBs worldwide, which are the statutory model and the “fourth-branch” model, with India exemplifying the latter. In this model, EMBs are constitutional bodies entrusted with safeguarding electoral integrity.

However, these “fourth-branch” institutions face many problems, particularly in India. She identified three key potential pitfalls of such institutions:

Firstly, partisan capture or interference can affect fourth-branch institutions. The legislature can manipulate them to favour certain parties. Additionally, partisan interests may influence the design and structure of EMBs during their formation, challenging their independence.

Secondly, though the constitutional intent was for electoral machinery to be independent of executive control, she noted that achieving true independence has been challenging. She discussed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Act, 2023 (“EC Act”), which deviates from the framework established by the SC in Anoop Baranwal, altering the appointment process and the service conditions of the CEC and ECs by putting a heavier emphasis on the executive. This legislative shift poses what Ms. Joseph calls the “Legislative Antithesis” to the court’s directives. Critics expressed concerns regarding the EC Act, specifically its provisions like formalising the appointment procedure and setting up a search committee. In a challenge to the EC Act, the petitioner in the ongoing case of Association For Democratic Reforms, has contended that the change by the Act undermines the independence of the ECI and exposes the appointment process to manipulation by the ruling party.

The petitioner also raised concerns about passing the EC Act in the Lok Sabha when a significant portion of opposition Members of Parliament were suspended, suggesting that the Selection Committee lacks necessary checks and balances. The SC issued notice on the plea but refused to grant interim relief, citing a pending matter. She highlighted that this response by the judiciary reflects a broader failure in protecting fourth-branch institutions. This would exacerbate the shortcomings of fourth-branch institutions in protecting democratic integrity, as they rely on the judiciary to safeguard their autonomy. The refusal to grant a stay petition undermines this reliance and exposes the vulnerabilities of these institutions to legislative interference.

She also discussed T.N. Seshan, Chief Election Commissioner of India v. Union of India (1995), underscoring the foundational principle that the responsibility for conducting free and fair elections should be entrusted to an independent body insulated from political and executive interference. The Court highlighted how these institutions play a crucial role in upholding democratic norms and preventing abuses of authority by ensuring that electoral processes are free, fair, and transparent. This is done by creating an independent entity that operates alongside the traditional branches of government (executive, legislative, and judicial) to check their power. 

However, while autonomy is crucial for electoral management bodies to function impartially and resist external pressures, it can potentially lead to a lack of accountability if not appropriately balanced. Ms. Joseph’s discussion delves into the complexities of striking this balance; she underscores the importance of maintaining a delicate equilibrium between independence and accountability to uphold the democratic legitimacy of electoral processes.

Speaker 3 – Mr. Aradhya Sethia (Ph.D. Candidate, University of Cambridge)

Mr. Aradhya Sethia delved into the significant role of political parties within the Indian electoral landscape, particularly in light of three pivotal cases: Anoop Baranwal (2023), Association for Democratic Reforms (2024), and Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023). 

He pointed out that while these cases may seem disparate at first glance, they all revolve around the intricate dynamics of political parties within the constitutional framework. Anoop Baranwal highlighted the imperative of maintaining the de-partisanship of the ECI and ensuring its independence. Association for Democratic Reforms shed light on the complex interplay between political parties and external actors, particularly concerning party funding. Finally, Subhash Desai underscored the internal workings of political parties, especially in defection. All three judgments underscored the critical role of political parties in shaping the electoral landscape and the broader constitutional framework. This shift in focus towards political parties marks a departure from the traditional treatment of parties as peripheral entities within constitutional discourse, highlighting the evolving significance of their role in governance and democracy.

His discussion on constitutional silences focused on the absence of explicit provisions regarding political parties in the Constitution. He began by elucidating the classical view of the role of political parties, which traces its roots back to the Anglo-American constitutional theory of the 18th and 19th centuries. This view posited that elections were primarily a relationship between voters and individual candidates, divorcing policy-making from the electoral process. The Indian Constitution, influenced by this classical perspective, initially marginalised political parties, considering them extraneous to the constitutional scheme. During the framing of the Indian Constitution, political parties were often viewed as extraneous or disruptive elements, distorting the constitutional process in a perception of “empirical irritancy”. This perception, reinforced by the Congress party’s early dominance, became inadequate as India evolved into a multi-party democracy. The Anti-Defection Amendment was introduced in 1985 in response to the growing importance of political parties in ensuring stable governance within a parliamentary system. This legislative evolution reflected a departure from keeping political parties outside the constitutional framework.

The Electoral Bonds judgment marked a significant milestone in recognising the centrality of political parties to the electoral process. By declaring the Electoral Bonds scheme unconstitutional, the SC acknowledged that elections in India revolve around political parties. This recognition has far-reaching implications, shifting the focus from individual candidates to the broader institutional framework of political parties in electoral reforms. In his paper titled Where’s the party?: towards a constitutional biography of political parties,” Sethia explores the role of political parties in Indian democracy and argues for their centrality in the electoral process. The SC’s judgment on the Electoral Bonds Scheme cited Sethia’s paper, recognising the importance of party-centered representation in India. This acknowledgement significantly departed from the previous focus on individual candidates in electoral reforms. He emphasised that political parties are not merely civil society organisations but integral to the democratic process. They play a fundamental role in shaping public policy, mobilising voters, and articulating competing visions for governance. As such, their internal affairs and organisational structure have far-reaching implications for the functioning of the constitutional system.

Mr. Sethia’s discussion on Subhash Desai and the  ECI order in the Shiv Sena controversy sheds light on the complex interplay between political parties, constitutional principles, and institutional dynamics within India’s democratic framework. The Court’s recognition of party organisations as entities with disciplinary powers underscores the need to regulate internal party processes. 

His analysis of the Subhash Desai case questioned the traditional reliance on the legislative majority to assess a government’s legitimacy, suggesting that this case challenges that notion. The SC’s observations depart from conventional parliamentary norms, especially regarding party organisations’ role in disciplining legislators. The Court implied that party organisations, not legislative bodies, may be better equipped to handle discipline. This recognition raises questions about the relationship between political parties and constitutional governance, emphasising the need for greater transparency and accountability within party structures.

Thus, from being initially sidelined to being aggressively regulated and finally recognised as central to the democratic process, political parties have undergone a significant transformation. This recognition opens avenues for future reforms to enhance political parties’ functioning and strengthen democratic institutions.

Speaker 4 –  Mr. Nizam Pasha (Advocate, Supreme Court Of India)

Mr. Nizam Pasha examined the intricacies of electoral laws and democratic legitimacy in light of recent cases such as the Shiv Sena judgment and the interpretation of Section 8 of the RPA. His insightful analysis touched upon the misuse of legal provisions, the challenges of partisanship, and the need for impartiality in electoral processes.

On the interpretation of Section 8, he noted how, apart from the widely publicised case of Rahul Gandhi, the case of Mohammad Azam Khan v. Election Commission of India (2022) serves as a pertinent illustration of how Section 8 has been misused in the electoral landscape. Pasha criticised the disqualification of the petitioner, a Member of the Legislative Assembly (“MLA”) in Uttar Pradesh, under Section 8 due to a conviction under Section 153A of the Indian Penal Code. He questioned the Court’s reasoning in convicting the petitioner, emphasising the need for a fair assessment of his electoral candidature, given the pending appeal against his conviction for alleged hate speech. Pasha underscored the urgency in ensuring that disqualification only occurs upon the finality of conviction, citing potential misuse, as seen in Khan’s case.

The SC’s recent judgment in the Maharashtra political crisis case in Shubhash Desai sheds light on the complex interplay between constitutional functionaries and the application of the Tenth Schedule of the Indian Constitution, which deals with anti-defection laws. This case involved a factional dispute within the Maharashtra Legislative Assembly and underscored the challenges posed by partisan actions of key political figures, particularly the Speaker, within the constitutional framework.

In a unanimous decision by a five-judge bench, the Court outlined nine conclusions regarding disqualification petitions and the Speaker’s role. “Conclusion C” stated that the Speaker’s decisions on disqualification would only apply prospectively, not affecting past proceedings. This laid down the Speaker’s role in resolving legislative disputes. The judgment addressed the contradiction of the Speaker’s impartiality versus their partisan nature, acknowledging the challenges. To address concerns, an interim measure allows the Speaker to rule on challenges to their jurisdiction, subject to judicial review. However, the Speaker’s political affiliations may limit the practical implementation of this measure, potentially affecting their impartiality.

Moreover, the Court rejected arguments for bypassing the authority of the Speaker in deciding disqualification petitions, citing the principles established in Kihoto Hollohan v. Zachillhu (1992). In Kihoto, the Court emphasised the importance of upholding the integrity of the Speaker’s office and adhering to parliamentary procedures in resolving factional disputes. However, the judgment also acknowledged the challenges the vacant Speaker’s office posed during the alleged disqualification acts, which may have facilitated partisan manoeuvres within the legislature. However, the Court also recognised the role of judicial review in scrutinising the Speaker’s decisions under the Tenth Schedule. The Court established a presumption of validity in favour of the Speaker’s decisions on disqualification petitions; unless proved otherwise, the decisions of the Speaker are presumed to be valid and binding. Mr. Pasha argued that the model established in the Kihoto case has faltered, particularly regarding the impartiality of the Speaker in deciding defection cases. 

In the Nabam Rebia v. Deputy Speaker (2016), the SC held that the Speaker was barred from adjudicating disqualification petitions if a motion for their removal was pending.  Mr. Pasha highlighted the conflict between the Kihoto and Nabam Rebia regarding the Speaker’s role as a tribunal. This potentially allowed defecting MLAs to avoid disqualification by disabling the Speaker from proceeding with the petitions. The conflict was analysed in the Subhash Desai case, where the matter was referred to a larger bench to reconsider the substantial question of law arising from the conflict. 

These concerns regarding the speaker’s impartiality, especially in disqualification petitions for anti-defection, were illustrated by Pasha by analysing Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly (2020). The court highlighted the potential bias in the Speaker’s position, which depended on the majority and a party member. It emphasised the need for an independent adjudicatory mechanism, like a tribunal, to ensure fairness in defection cases. The SC’s decision in the Maharashtra political crisis case showed the contradiction between the Speaker’s impartial role and their political ties. Despite recognising biased Speaker actions, the Court upheld the Speaker’s powers. However, it also emphasised the need for reform, echoing the Keisham Meghachandra Singh case.

Pasha described how the Speaker, often affiliated with a political party, might prioritise cases based on the party’s interests. He provided an example from Himachal Pradesh, where the Speaker expedited proceedings related to defection cases involving members of his party while delaying those involving opposition members. This selective approach raised questions about the Speaker’s impartiality and adherence to procedural fairness. Furthermore, Pasha emphasised Justice Nariman’s directive in the Keisham case, suggesting that disqualification cases should be decided within a specified timeframe, ideally three months, to prevent undue delays. However, Pasha noted that this directive was often disregarded in practice. He highlighted instances where Speakers delayed proceedings indefinitely, potentially influencing the outcome of disqualification petitions based on partisan politics.  

Pasha concluded by criticising the failure of institutions to uphold electoral integrity, citing instances such as where political influence compromised fair proceedings, as illustrated in the case of Mohammad Azam Khan. He emphasised the need for the judiciary to intervene decisively to safeguard electoral processes from partisan manipulation.  

Written by: Barkha Singh

Edited by: Rujul Arora

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