Kanishk Pandey
“The author would like to thank Sukarm Sharma for all his help”
INTRODUCTION
On 12th August, the Government of National Capital Territory of Delhi (Amendment) Act 2023 (“GNCTD”) received the President’s assent. The GNCTD severely diminishes the powers of the Delhi Government in relation to its control over civil servants operating in the capital. It is the latest in a series of legislations by the Lok Sabha aimed at diluting the powers of the Delhi Legislative Assembly.
Existing literature has discussed issues pertaining to the constitutionality of such acts which dilute the powers of state governments (See here, here and here). The arguments there concern questions like constitutional interpretation, federal theory and the violation of the basic structure. This article takes a detour from that discourse and analyses federalism through a perspective of fundamental rights. An obvious objection to the same is why read federalism into Part III of the Constitution when it is already included within the basic structure and enjoys robust protection? I submit that approaching federalism through the lens of fundamental rights serves to render federalism-related concerns more tangible in the lives of ordinary individuals.
Questions of federalism, such as the abrogation of Article 370 and the passing of the GNCTD, are deeply interwoven into people’s lives. Recent scholarship on Indian Constitutionalism, such as Rohit De’s “A People’s Constitution”, has attempted to understand the whole Constitution as a document which advances the rights of the average Indian. This article attempts to supplement that understanding by linking federalism to fundamental rights. I argue that a right to vote and self-governance can be read into Article 19(1)(a), and consequently, a violation of the federal structure is a fundamental rights violation.
EXTRACTING A RIGHT TO VOTE AND SELF-GOVERNANCE UNDER ARTICLE 19(1)(a)
The working of democracy depends on whether the people can decide the fate of their elected government, through elections and voting. Voting is a mechanism for citizens to express themselves politically in a democracy. But can this right be considered a fundamental right within freedom of expression under Article 19(1)(a)?
Indian jurisprudence for most of its history has hesitated in terming the right to vote a fundamental right and has restricted it to a constitutional right under Article 326. However, a contextual analysis of (a) the constituent assembly debates, and (b) some recent jurisprudence, can help us read the right to vote as a fundamental right.
(a) Constituent Assembly Debates
Upon examining the debates of the constituent assembly, it becomes evident that the original framers had intended to incorporate the right to vote in Part III of the Constitution itself. However, they were unable to do so due to unique circumstances surrounding Princely States’ autonomy. Clause 12, which encompassed the right to vote, was referred to the advisory committee for review based on a report by the Fundamental Rights Sub-Committee. The inclusion of the clause was also supported by the Minorities Sub-Committee. Within the Advisory Committee, Dr. Ambedkar strongly advocated for its inclusion as a fundamental right. According to Ambedkar, at the core of establishing this right was a promise of universal suffrage to every Indian citizen who was unable to exercise this right under colonial rule. However, other members of the Committee objected because the representatives of the Princely States would perceive such a suggestion as a violation of their autonomy as unelected monarchs. Therefore, granting voting rights as a fundamental right could be seen as contradictory to their established systems.
Additionally, there were concerns regarding the federal structure of the nation. When this discussion came up for debate, there was a lack of clarity on how exactly the elections will take place. Govind Pant raised this issue in the assembly when he argued that there is a possibility that India might opt for indirect elections and people may not get to directly exercise voting as a fundamental right. Therefore, despite Dr. Ambedkar’s opposition, the right to vote was not included in Part III.
However, both these objections do not have merit anymore. The Princely States have ceased to exist. India also opted for a form of elections where every citizen over 18 years of age has a vote in Parliamentary elections. The argument that such a right cannot be inculcated within fundamental rights does not have merit as well. In K.S. Puttaswamy, the Court considered whether the non-inclusion of a right in the original Constitution can be grounds for not including it within fundamental rights. The Court rejected this notion and held that constitutional understanding must continuously evolve to fit the needs of the present and cannot be frozen in the past.
(b) Recent Jurisprudence
Recent jurisprudence also indicates a shifting perception of the right to vote and its consequences on self-governance. In Anoop Baranwal, Justice Rastogi wrote a concurring judgment stating that a right to vote must necessarily exist under Article 15, 19, and 21 as that right is crucial for allowing people from all sections of the society to be involved in the democratic process. His reasoning was based on constitutional assembly debates, the promise of adult suffrage in international law, and prior judicial observations. While hearing a PIL, Justice Chandrachud opined that the right to vote is a part of Article 19(1)(a)as it gives the people the power to express themselves in a democracy.
Similarly, in a recent case from July, the Supreme Court also observed that the right to vote not being a fundamental right is paradoxical to the aims of democracy. The facts of this case revolved around the voter’s right to know about the antecedents of a candidate such as total assets, past convictions, etc. The court held that a right to vote, based on an informed choice, is fundamental to democracy. The reason it is fundamental to democracy is that people have a right to be governed in the way they want, by the people they choose. This line of reasoning was applied in PUCL v. UOI, where the majority opinion held that the freedom to know about the candidate’s antecedents is directly linked to Article 19(1)(a) as it allows people to decide by whom they want to be governed.
While the Supreme Court of India has not expressly held that the “right to vote” as a fundamental right yet, based on the aforementioned reasons, it can be concluded that the right to vote and the consequent ability to decide who you want to be governed by can be read under Article 19(1)(a). The next section will now outline how a violation of the country’s federal structure will therefore be a violation of these fundamental rights.
VIOLATING FEDERALISM LEADS TO VIOLATING RIGHTS
The framers of the Constitution believed that a federal government was essential to ensure the distribution of power. This division of power was intended to safeguard the rights and interests of the people at both national and state levels. Pertinently, safeguarding people’s rights was the force behind adopting federalism.
The Constitution aimed to create a ‘welfare state’, which is a governmental system where the state, or a robust network of social institutions, safeguards and advances the economic and social prosperity of its populace. India chose federalism as the framers of the Constitution believed that it not only addresses its diverse socio-economic fabric but also safeguards the rights of its citizens. Federalism’s decentralized structure allows states to have a significant degree of autonomy in managing local issues, which in turn facilitates the protection of rights and interests tailored to regional contexts. For example, state legislatures have control over certain subjects, such as police and civil servants, and can make laws tailored to particular contexts.
The electorate demonstrates an awareness of the necessity for decentralized governance by strategically exercising their voting power to align with local needs. This strategic approach is reflected in the adjustment of voting preferences based on the level of the election. This is particularly evident in India’s political landscape. Among the country’s 30 legislative assemblies, only 9 are ruled by the BJP, despite their sweeping victory in the general elections. This pattern of voting behaviour illustrates how citizens make informed choices based on their assessment of different parties’ competencies and policies at varying levels of governance. It underscores the multifaceted nature of Indian democracy, where voters exercise their agency to ensure that both local and national interests are best represented through strategic voting.
However, what if this authority is disregarded and the Central Government assumes control from the state? Inevitably, the Central Government’s approach would likely be broad and may not adequately address specific needs. This seizure of power would negatively impact the autonomy of local residents and could also jeopardize the safeguarding of their rights.
This Author argues that such usurpation of power is in contradiction with the democratic principle which forms the basis for the “right to vote”— i.e., the ability to self-govern. This is because it fails to truly represent the people’s electoral mandate.
Let us try to analyze this in light of the GNCTD’s passing. The people in Delhi, overwhelmingly, chose the Aam Aadmi Party in the assembly elections. In 2019, the same people elected 7/7 BJP MPs in the general elections. The above assertion that voters adjust their voting preferences based on their specific interests, according to the body the representatives are being elected to, holds in this context as well. Therefore, it can be concluded that Delhi’s electorate believed that the AAP represents their local interests better. The passing of the GNCTD, which takes major powers away from the state government, is a violation of the electorate’s agency. The Act takes away the Delhi government’s control over civil servants and gives it to the Centre. This can negatively impact the governance method of the Delhi government, and consequently, disrespect the electorate’s mandate.
The electoral mandate is a representation of the right to vote and self-governance under Article 19(1)(a), as people choose the governance which best suits their interests. Therefore, any violation of the federal structure which impedes the electoral mandate can potentially bein contradiction of the rights under Article 19(1)(a).
CONCLUSION
The aim of this article was not to present a fool-proof case to include potential violations of the federal structure under Part III rights. Rather, it was to promote a discourse which recognizes federal issues as a people’s issue. Whatever is going on in the Article 370 case might be a constitutional question specific to federalism; however, it is important to realize that at its core lies the people, and the repercussions the abrogation of Article 370 holds for the people of Jammu and Kashmir. Similar questions can be raised in Delhi’s context, as the Centre continues to usurp power from the state. How will there be a right to choose governance, when the chosen government will have no power to govern? The questions remain unanswered but this Author hopes that the thought that federalism is a citizen’s issue stays in the Readers’ minds.
The author is a student at National Law School of India University, Bengaluru
Image Credits: The Hindu
Constitutional Law Society 
Leave a comment