AS India completes seven decades as an independent democracy, two contradictory pulls in which the polity is moving are discernable. One is an impetus for expansion and inclusion; the other, a push in the direction of shrinking and exclusion. Representative democracy, though in itself not capable of dismantling the elite-mass divide, is nevertheless expected to bridge the gap between the two. More importantly, throwing the gates open for all citizens to enter is expected to broad-base the category of the elite. The contradiction of India’s democracy lies in the fact that even as this opening of gates took place through political practice, measures have also been afoot to close the gates on the masses.

In the 1990s, analysts of Indian politics detected a new trend: an expansion of democracy. This expansion had a numerical dimension, but even more, a qualitative one whereby new and hitherto marginalized sections were incorporated into the electoral arena. These new sections were mostly from the underprivileged classes – the poor, rural residents, dalits, adivasis, backward castes, minorities and women. Various processes have contributed to this churning and the resultant inclusiveness of electoral politics.¹ Why is it then that two decades down the line, the extant discussion reflects more a shrinking of the democratic space than an expansion?

Part of the answer may lie in the subsequent rise of assertive participation and agenda setting by the urban middle classes. The turnout among urban and middle class voters picked up post-1999, in part neutralizing the relative advantage earlier enjoyed by the rural and less privileged voter.² The rise of an anti-corruption agitation and emergence of the Aam Aadmi Party (AAP) as a dominant force in Delhi, signalled the increased agenda-setting powers of the same strata of society, a tendency that was later reflected in the victory of Narendra Modi and the BJP in 2014. Intriguingly, these developments dovetailed with the various institutional measures taken or contemplated during this period in order to ‘streamline’ electoral democracy. In the nineties, this tendency was manifested in the almost anti-political approach taken by the then Chief Election Commissioner (T.N. Seshan, 1990-96) who became hugely popular as the measures he proposed were enthusiastically welcomed by a range of civil society actors.

 

The political actors themselves who were at the receiving end of Seshan’s aggressive cleaning up have, however, not shied away from adopting measures for streamlining electoral politics in another sense. Even as the prime minister’s repeated appeals to think about holding simultaneous elections to the Lok Sabha and state legislatures elicited only a muted debate, the effort to ‘streamline’ democracy was more starkly visible in the local elective bodies. This makes the irony of our democracy apparent: ordinary citizens can engage with politics most easily at the local level of electoral politics; however, it is precisely at that level that we witness many experiments of restricting democracy with approval from many political players as well as sections of the judiciary.

Though the formulations of a democratic upsurge and resultant excitements of the nineties were more explicitly derived from trends emerging in the electoral arena of parliamentary and state legislative elections, a somewhat less celebrated but potentially rich development was simultaneously taking shape at the local levels. Just around the time when an increasing number of people began to vote and get involved in the gigantic and faceless electoral processes, a new window was opened at the local level by constitutionally reorganizing the local government institutions through the 73rd and 74th amendment acts. These acts, and their follow up in most states, exemplify a democratic turn in the structural arena, reflective of the somewhat artificial and top-down approach typical of the one-step-forward-two-steps-backward style of democratic progress in India. State governments till then were often less than willing to democratize the local government arena and even after these amendments, remain loath to recognize local bodies as representative of local opinion. But the establishment of constitutionally ordained local bodies is now an institutional fact. Slowly, almost unwillingly, states were ‘forced’ to fall in line and a more or less uniform system of regularly elected local bodies has come into being.

 

This essay does not intend to either celebrate or bemoan the state of local democracy in India. It seeks to flag various measures that constrict local democracy by initiating practices that are patently inconsistent with the democratic spirit. The lackadaisical and contradictory attitude toward local bodies by the states better helps us understand the immediate context of a larger malady.³

As often happens in any top-down measure, the 73rd and 74th amendments to the Constitution introduced some radical institutional mechanisms. Both in the case of elected representatives as also office bearers, these acts created a system of guaranteed (reserved) representation for women, dalits, adivasis (and states were even empowered to reserve seats for OBCs). This formal institutional mechanism nicely tied up with the political environment of the nineties. Even though the women’s reservation bill repeatedly failed to get legislative approval, there was much discussion and near unanimity about the need to ensure a greater share to women in politics and elected bodies.

 

Similarly, following the acrimonious debate over Mandal, most parties came to recognize both the political force of and democratic value in acceding a greater share of power to OBCs by the mid-nineties. The measures mandated/enabled by these amendment acts were indeed instances of institutionally generated social engineering. The system chose to create this legal-systemic space for new, and weaker, social sections to enter politics. Its artificiality apart, this measure complemented the democratic upsurge witnessed in elections to state assemblies and the Lok Sabha.

Possibly because these measures were handicapped by the artificiality of a top-down approach, they were sabotaged from the very beginning. Thus began an effort to block, as far as possible, the entry of the weaker sections in the local arena of politics. These attempts to undermine the possibilities of a democratic expansion are reflective of a long-standing elite contempt and unease about democratizing the most grassroot units of politics. The governments of Rajasthan, Gujarat and Haryana have already introduced measures that are likely to force weaker sections out of the local electoral arena. But let us also not make the mistake of accusing the BJP alone for this bias. The story of introducing restrictive measures goes back to the nineties, when the Congress and other parties were at least partially complicit.

 

It seems that at the time when ‘grassroots democracy’ was being celebrated as the centrepiece of radical democratic legislation, some policy makers, alerted to the demographic implications of a rising population, came up with the brilliant idea that local representatives should not have more than two children! There is no convincing explanation as to what this specifically has to do with local representatives alone. The origin of the idea can be traced back to the Karunakaran Committee (1992) on population. The committee, incidentally, had sought such a limitation on all representatives – state and national legislators included. Unsurprisingly, while nothing happened about altering the qualifications of state and national legislators, many states such as Haryana, Rajasthan, Gujarat, Maharashtra, Andhra Pradesh, to name a few, adopted this measure at the local level.

 

The proposal to disqualify persons with more than two children from being people’s representatives displays both a weak understanding of population growth dynamics and the idea of representation. It is known that the incidence of having more children is generally prevalent among the less well-to-do social sections. Given that members of these sections may find it easier to contest local elections rather than legislative elections, such a restriction automatically tends to push them out of the local electoral arena. Moreover, against the backdrop of an assured representation to women in local bodies and among office bearers of local bodies, it can easily be imagined what a two-child norm would mean for women representation.⁴

The fact that women lack control over their bodies is well documented. This unthinking measure clearly discriminates against women in general and those from a more backward social section in particular. So, while women from SC, ST, OBC categories are entitled to reservations among the quota for those communities, the two-child norm means that many from those sections would be ineligible or subsequently disqualified to enter local bodies. So much for women empowerment! Though the Supreme Court held: ‘We do not think that with the awareness arising in Indian womenfolk, they are so helpless as to be compelled to bear a third child, even though they do not wish to do so,’⁵ one cannot but beg to differ with this assessment.

 

The ‘ignorant’ idea that representatives should not have more than two children, was followed by a demand that local representatives must have toilets in their homes. States like Maharashtra (under Congress-NCP rule) and now Haryana, have taken the lead in making it necessary to have a functioning toilet for members of local bodies. Again, this is an instance of an important social reform unthinkingly linked to the idea of representation. No doubt, public defecation is a problem. Yet, more than high profile campaigns involving film stars, it requires a huge provisioning for not just constructing toilets (for which states do often make funds available) but also for ensuring water supply. Every local body should therefore be empowered – not in terms of taking action against defaulters, but in having adequate monetary and water resources to meet this objective. Unfortunately, by imposing an eligibility condition, state governments have displayed not just cavalier tokenism but also an utter disregard to the different purposes of the two issues involved.

Open defecation is a practice that undermines both the privacy and dignity of a person and thus needs to be addressed through entirely different measures. In a rural set-up, who is least likely to have a functioning toilet at home? Unfortunately, the disturbing conclusion is that the socially and economically disprivileged sections such as the landless, dalits, adivasis, are most likely to be the ‘offenders’. So, even as the Constitution both seeks and provides for their entry into local power circles, state governments, in the guise of social reform, ensure that they cannot effectively and freely enter the arena – a second instance of democracy being trumped by unrelated criteria applied unfairly.

 

The latest in a series of policies that undermine the impetus towards democratic expansion is the conditionality of minimum education, with local representatives are required to have a certain level of school education. Again, there cannot be two opinions about the need to universalize school education. And educationists have regularly pointed out the scale of investment for school buildings, teachers and so on required to bring this about. But our political masters do not want to do that; rather they seem to be satisfied with a token gesture – make education an eligibility condition for local body members. The effect is clear; dalits, adivasis and Muslims, and women among these sections, more than other women, would be the major ‘culprits’ and therefore barred from becoming representatives. Their parents probably could not afford school education for them and they must be punished for their parents’ poverty. Haryana has taken the lead in imposing this disqualification.

It must be underlined that even as these measures were challenged in the courts, they have been granted judicial approval. But going beyond the court rulings, one must take a closer look at the flawed imagination that these measures betray.

Let us examine the arguments in support of these measures. At a legal-technical, but politically important, level the argument advanced is that unlike the right to vote, the right to contest is not a constitutional right. What is ignored here is that the idea of rights is evolutionary and while the Constitution does list specific rights, as a democratic society we have over the years come to recognize other rights as emanating from fundamental rights or being implicitly part of fundamental rights. Consequently, the right to contest elections needs to be understood in this larger context instead of the narrow construction of its status merely as a statutory right.

Moreover, the right to vote, if it is conceded to be a constitutional right (it finds mention in Article 326 of the Constitution), would itself be adversely affected if the right to contest elections was not available to all citizens (usual conditions apply).⁶ The idea of elections is predicated on freedom to contest without which an election would be considered rigged. The above eligibility requirements tend to rig the elections against a specified set of people. If narrowing the right to contest restricts choice and exercise of the right to vote, it is necessary to treat the right to contest as integral to right to vote and not separate from it.

 

Supporters of the legality of these provisions also argue that since no class of citizens is deliberately discriminated against, this exercise of states’ power is admissible. This is a tenuous claim because in each of these instances, while the law itself does not discriminate, its effect is discriminatory. One could say that even if the law makers did not explicitly intend to discriminate, the socio-structural effect of the laws has been/is bound to be discriminatory and thus the law makers have erred in ignoring the discriminatory effect of these measures. The emanating discrimination is bound to adversely affect both the underprivileged sections and the original intent of the (73rd and 74th) amendment acts. It is a moot question as to how a law can undermine, through its effect, the purpose of the original policy and constitutional provision for which the law was made an instrument of furthering that policy and provision.

 

But beyond questions of legislative competence and discrimination, there is a larger issue that the policy makers need to consider – about the purpose behind these legislative measures. For all three – two-child norm, toilet and education – a common purpose seems to form the core argument. There are many social evils that we must address and arguably local ‘representatives’ must be role models – exemplars – of these good things. This expectation and the idea that just because representatives would set an example these evils would be tamed, is not just naïve and simplistic but, as a basis for policy, harmful. Therefore, these measures require an urgent rethink. There are at least three core concerns that should persuade everyone to rethink the legislative penchant for imposing such measures and unreasonable restrictions on the right to contest local elections.

In the first place, in deciding the structure of local bodies, state legislatures must take into account the requirements of representation. Therefore, the key test can only be one: does a particular factor/behavioural trait or a particular practice becomes a hindrance to the ability to represent? Or is a particular practice or trait so obnoxious as to demean the representative office? If so, barring individuals on those grounds from becoming representatives can be defensible. Following a two-child norm or acquiring a level of education are desirable traits, whether among ordinary citizens or their representatives. Similarly, we abhor open defecation, whether by elected representatives or any member of the public. However, these characteristics in themselves cannot be shown to have an adverse effect on the function of representation. Rather, all such proposed measures would tend to push a large section out of the electoral arena.⁷ Education is a case in point: we ordinarily take pride that the Constituent Assembly of India, in the late 1940s, when illiteracy was far more widespread than it is today, took a bold step and chose not to make any educational requirement a qualification for being a representative in legislatures. That democratic logic must apply to the present debates. Unfortunately, we seem to be moving away from the democratic logic privileged by the Constitution we have adopted.

 

Two, what is the basic measure of representative democracy? Only when it becomes inclusive is democracy truly representative. The history of representative democracy is one of a gradual expansion of the idea of who is to be represented and by whom. Today, it means an institutional arrangement whereby everyone has a chance not only of being represented but of being a representative. Therefore, the right to contest elections cannot be de-coupled from the right to vote and the idea of democratic representation. The Constitution did not have to specify the right to contest as a right because democracy as a system of government envisioned by the Constitution is not possible without recognizing that both the right to vote and contest are two sides of the same coin. It is no exaggeration to argue that in as much as democracy is the central pillar of government in India, the right to vote and right to contest together become a basic feature of the Constitution. Violating either will damage the very foundations of democracy.⁸

 

Finally, it is possible to argue that over time these restrictions will become redundant: education is spreading; the practice of open defecation is becoming less common, and a small family norm is increasingly becoming a reality among vast sections of the population. So, why worry about the restrictions which in the near future may be irrelevant as a criteria for disqualification?

This way of thinking, however, deflects attention from the larger theoretical, and possibly practical, malady – our thinking about both the idea and architecture of democracy. Details, arguments and legalities apart, these measures suggest that elected law makers themselves tend to imagine democracy in a somewhat restrictive manner. Today, one set of measures are being enforced; tomorrow others may be introduced in order to ‘streamline’ competitive politics to the detriment of competitiveness itself.

In conclusion, while these measures are problematic so far as possibilities of entry into local elite circles are concerned, the wider and worrying implication is the thinking behind them, which betrays a blinkered or narrow view of who is/should be the citizen and who among our citizens should be entitled to knock at the doors of the elite political club. Minimally, these measures imagine two different sets of citizens: those who are represented and those who can represent.

In any representative democracy, elite and mass is an inevitable reality against which the system formally seeks to guard itself by upholding the principle of political equality. That principle seeks to contest, fight and neutralize the effects of social inequalities at least in the political and electoral arena. The principle of political equality seeks to ensure that the political elite will not be a self-perpetuating and frozen group of persons drawn from common social backgrounds.

 

The decision of the framers of the Indian Constitution to not include qualifications, such as level of education, for contesting elections reflects a valuable political-moral choice. In contrast, the measures discussed here, enthusiastically and in the name of better representation, narrow the social pool from which representatives must always come.

Given the sustained efforts in many states to similarly narrow the base of democracy at the local level, and given the judicial approval these efforts have elicited, makes one wonder if a new consensus about the idea of representation and the right to represent is acquiring shape. This is indeed a paradox of India’s democracy that two decades after an upsurge, democracy seems to be settling back to the ‘normal’ where neither social nor political power is effectively challenged; instead, the new normal pushes back the possibilities of democracy.

 

Footnotes:

1. Javeed Alam, Who Wants Democracy? Orient Longman, New Delhi, 2004, provocatively argued that the underprivileged classes had invested more in the democratic process and they constituted the bulwark of protection and qualitative enhancement of democracy in India. Yogendra Yadav, detecting the early trends emerging in the first half of the nineties, famously claimed that the changes occurring both in voting patterns and patterns of campaign participation (and therefore party affiliation) constituted India’s second ‘democratic upsurge’; see Yogendra Yadav, ‘India’s Third Electoral System, 1989-99’, Economic and Political Weekly, 21-28 August 1999, pp. 2293-99.

2. Suhas Palshikar and Sanjay Kumar, ‘Participatory Norm: How Broad-based is it?’ Economic and Political Weekly, 18 December 2004, pp. 5412-17 and Sanjay Kumar, ‘Patterns of Political Participation’, Economic and Political Weekly, 26 September 2009, pp. 47-51.

3. Many supporters of decentralization believe that local bodies and their constitutional status are steps in the direction of further democratization at the local level. However, instances in this essay and many other methods adopted by state governments to undermine the autonomy of local bodies – and particularly the autonomy of the State Election Commissions and disregarding the recommendations of the State Finance Commissions – suggests that states do not look upon local elected bodies as further instruments of democratization. One glaring instance is the scheme of the Gujarat government to give prizes to villages that unanimously elect panchayats. For the position of state government of Gujarat, see https://panchayat.gujarat.gov.in/panchayatvibhag/english/schemes/samras-yojna.htm; accessed 20 November 2016 and for an academic analysis, see Madhusudan Bandi, Samras in Gujarat Gram Panchayats: A Constructive Experiment or Challenge to Electoral Democracy? Working Paper 215, Gujarat Institute of Development Research, Ahmedabad, 2013; http://gidr.ac.in/pdf/WP%20215.pdf

4. The Ministry of Panchayati Raj commissioned a study in 2009 to ascertain the effects of this measure – albeit only in the case of ‘fifth schedule area states’. See the study conducted by Institute of Social Development, Udaipur, 2009: https://www.google.co.in/search?q= Dak+on+Two+child+norm&ie=utf-8&oe=utf-8&client=firefox-b-ab&gfe_rd=cr&ei=z KAxWLTSNe3n8AeN6YEQ. Also see, for a broad-based critique covering five states, Nirmala Buch, ‘Law of Two-Child Norm in Panchayats’, Economic and Political Weekly, 11 June 2005, pp. 2421-29.

5. http://judis.nic.in/supremecourt/imgs1. aspx?filename=19165; accessed 20 November 2016.

6. While various rulings of the Supreme Court arrive at different conclusions on this matter, the latest one, involving the Haryana Act making education as a compulsory condition for contesting local elections, does recognize the right to contest as a constitutional one, albeit through a different reasoning from the one adopted here; Rajabala and Others, 2015, ruling by Justice Chelameswar, para 37; http://supremecourtofindia.nic.in/FileServer/2015-12-10_1449739272.pdf; accessed 21 November 2016.

7. When Maharashtra decided to make the toilet condition applicable, it was reported that out of about 2.5 lakh representatives, 60,000) would lose their membership – http://www. ndtv.com/india-news/build-toilets-or-lose-candidature-maharashtra-govt-to-village-heads-437463; accessed 21 Nov. 2016.

8. A classic case of interfering in both right to vote and right to contest can be found in the decision of the Gujarat government in 2015 to make voting compulsory (stayed by the High Court) and also incentivizing villages to elect the panchayat without elections – by consensus!