Seminar Ten

[vasuj...@nujs.edu]

Notes on the NOTA Case

- Vasujith Ram

I would like to record some thoughts on the case of PUCL v UoI, now popularly called the NOTA case. The Court in this case recognized the right to abstain with secrecy, and directed that the 'None of the Above' (NOTA) button be included in the EVMs.

Contrary to several media reports, the case did not recognize a right to reject. In fact, the Election Commission issued a clarification that even if NOTA gets the highest number of votes, the candidate with the next highest number would be declared the winner. Thereafter, the right to reject was opposed by many including former former Chief Election Commissioners such as Dr. SY Quraishi. Recently, even the Law Commission recommended against the implementation of a right to reject (in its latest report on electoral reforms). By right to reject, I mean an active right to vote negatively against all candidates (as against existing rights to vote for one or abstain from voting). This would imply the possibility of a re-election, if a certain threshold is crossed. I have consistently argued for a right a reject. In this note, I will highlight some arguments against the recognition of such a right, and my responses to the same.

The foremost argument is that a re-election would cost the state enormous resources - which simply cannot be afforded. However, the Supreme Court has repeatedly held that finances cannot be an excuse for denial of fundamental rights. More specifically in the context of election-expression rights, in the VVPAT case, the Supreme Court ordered that VVPATs be installed irrespective of the costs. Moreover, the chances of a re-election is minimal, given that the Law Commission itself cites that NOTA has been used only by 1.1% of the voters so far. A second argument is that recognition of the right to reject would affect the right to contest. Even if we assume that such a right would be violated, it is clearly that "public interest" or a "basic structure right" would prevail in case of a conflict of rights. Thirdly, the Law Commission has argued that the NOTA decision was rendered only in the context of secrecy of voting and that there is no "justificatory rationale" for a right to reject. However, in a 2015 case, Krishnamoorthy v Sivakumar (regarding undue influence and false affidavits), there appears to a wide application of the NOTA case.

Rejection itself is an act of expression - and given the recent (in my opinion, philosophy and constitutionally unjustified) push towards compulsory voting, right to reject is a topic to be given serious thought.

[kruthi...@gmail.com]

Thought Paper: NALSA v. Union of India

Kruthika N. S.

The fundamental leap forward made by the NALSA judgment, according to me is the recognition of transgenders’ right to self identity and expression through the constitutional mechanism provided under Article 19(1)(a). By asserting that the rights of transgenders have been embodied not only as a right of privacy, but also as a right of expression, the judgment has been one of the most progressive of late. This is best understood by tying the social scenario with respect to transgenders, the kinds of protection provided under the two rights (that are, privacy and expression) and the capabilities approach as explained by Amartya Sen.

Consider a situation (A), wherein the court had only allowed transgenders to exercise their rights under Article 21, without a mention of Article 19(1)(a). In that case, although it would be a welcome change from the Koushal scenario, the focus would still only be on the right to privacy. The basis of such an argument, in the crudest possible words, would be to allow an individual to be free to live as he chooses within the confines of his personal or domestic space. It would be so because the State has no business interfering in that sphere.

However, if one considers another situation (B), such as this case, the court has explicitly brought in Article 19(1)(a). This, according to me, seems to be another step forward as this recognition of one’s rights was extended not only to the confines of the personal realm, but much beyond that. This implied that not only does the State have no business policing the private sphere owing to privacy, but it cannot do so in the public sphere either. So, not only can one be a member of the transgender, but also can show or express it without state restriction.

From the social viewpoint, this makes miles of difference as it then asserts that the presence of transgender culture is not a decency or morality issue any longer. It hence accepts the transgender community as a vibrant culture that is a part of society, and that it can exist as the majority. Hence, the elimination of the morality or decency issues surrounding the transgender community has proved to enhance their capability of leading a normal, whole life. While in situation (A), they might have not had the capability to express their identity out in the open, but in situation (B), they have the capability, and all the right to do so.

[man...@nujs.edu]

Thought Paper - 3

 

M.S.M. Sharma v. Shri Krishna Sinha, AIR 1959 SC 395

 

Mansi Binjrajka

 

This extremely deferential case calls for criticism on several grounds. Firstly, with regard to the Parliament’s power to prohibit publications of its proceedings, the Court seems to have disregarded its entire review of the same power in the context of the British House of Commons. The analysis showed that the purpose of this power was to maintain secrecy and prevent interference from the King. Also, with the practice of reporters attending the proceedings, and parliamentarians actively editing and correcting their speeches before its publication, the power seems to have become redundant. However, since it was a power, which existed at the time of the enactment of the Constitution, the majority recognized it in India. The majority decision paid no heed to the limited context in which this right existed in England and how sparingly it was exercised. Instead, the Court’s deference is visible from the trust it places in the Parliament regarding using the law in very specific circumstances.

 

Further, in this case, the journalist had merely reproduced the speech that had been made by one member of the House. The fact that some parts of the speech had been expunged by the Speaker was not intimated to the press and hence, there seems to be no intended malice on part of the journalist. The show cause notice was issued after more than a year of the publication. However, the majority did not look into this at all.

 

The Court’s deference is again evident from its holding that the parliamentary privileges cannot be subject to fundamental rights. However, what Justice Subba Rao pointed out in his dissent seems to be the better interpretation. Article 105(3) was enacted as a transitory measure, which was intended to be replaced by a statute on parliamentary privileges. When codified, they would be subject to the fundamental rights and hence, it is clear that the constitution framers intended the same. In my opinion, this argument can be stretched a little further. Article 105(3) lays down the privileges of the Parliament generally. Any notice or order issued under it must necessarily be subject to fundamental rights since they are law within the meaning of Article 13.

 

In holding Article 19(1)(a) as subordinate to Article 105(3) the majority adopts a strange reasoning by declaring the former as a general provision and the latter as a special one without providing any sort of reasoning for categorizing parts of the Constitution into the said two categories.

[ravee...@gmail.com]

Thought paper 2:

Hamdard Dawakhana v Union of India

Raveena Rao Kallakuru - 213018

                          

This case essentially deals with a fundamental question as to whether commercial speech falls within the speech envisaged by the Constitution. The Court opines that advertisements which are for purely commercial purposes do not enjoy the protection of the Constitution. On a philosophical level that seems debatable. Looking through the framework of the Constitution, it isn’t. The Court is simply wrong.

In our first few classes we studied the concept of valuing speech – wherein we place political speech or speech essential to the functioning of a democracy at a higher level than other forms of speech. In Sakal Papers as well, the Court came up with the concept of protecting speech because speech was essential to maintain democracy. Through these cases, I notice that the Court is looking at free speech as something we protect because it helps maintain a democracy. At a superficial level, this approach seems laudable. However, I think that this is a scary argument because this leads to a slippery slope. The Court must act as the interpreter of the Constitution and I find no value judgment passed on any form of speech in the Constitution itself.

The Court talks about the “essential concept of the freedom of speech”. In my opinion, the Constitution guarantees the freedom of speech. That’s all it does. If we start protecting speech only when it contributes to some great intellectual goal, then we are leaving a huge chunk of speech unprotected. Let’s face it, every second person is no Aristotle, though the Court clearly thinks that’s the speech that needs to be protected. This is similar to the entire problem of interpretation of obscenity as done in Ranjit Udeshi and film censorship as done in K.A.Abbas, where the Court is willing to protect art that contributes to some perceived social interest. Just as we discussed in class, art must be something for art’s sake. And the same logic applies for speech.

The Court also confused me at a point because despite accepting that advertisement is a form of speech it moves on to say that it isn’t up for protection. When I argue that this is wrong, I do not mean that advertisements do advertise anything. They are subject to the restrictions imposed on free speech. Whether the advertisement could be curtailed due to Article 19 (2) would depend on each case. In this instance, I don’t believe that it could be curtailed simply because I find 19 (2) not covering such a case.