REDEFINING CITIZENSHIP: Chintan Chandrachud

http://www.thehindu.com/opinion/op-ed/redefining-citizenship/article18081165.ece

Redefining citizenship*: Chintan Chandrachud

Excerpts:

“First, the court has increasingly used the regrettable, caste-based taxonomy of ‘purity’ and ‘pollution’ in its decisions. For example, in 2013, it endorsed the decision of the Patna High Court observing that candidates with criminal records pollute the electoral process, affect the sanctity of elections and taint democracy. The court’s language is symptomatic of its conception of its own role — as a sentinel of democracy seeking to ‘disinfect’ the electoral process. This is more than a poor choice of words. The court has the power to frame debate and influence the language of argument in ways that perhaps no other institution does.

Second, the court’s recent decisions have meant that whether the right to vote is a constitutional right or merely a statutory privilege is still a matter of contestation. Article 326 of the Constitution provides for universal adult suffrage, but does not specifically mention the right to vote. Rights that are not explicitly set out in the Constitution, such as the right to privacy, have routinely been impliedly read into the text. But the court has refused to categorically recognise the right to vote as an inalienable constitutional right, frequently holding that it is a privilege that can be taken away as easily as it is granted.

It is disconcerting that the court still does not clearly acknowledge a constitutional right to vote. Participation in the electoral process is often seen as a gateway right, or a ‘right of rights’. Our only response to citizens whose candidate of choice has not been elected is to point towards their right to exercise that choice in the first place. The absence of a constitutional right to vote has real consequences, for it makes it easier to impose wide restrictions on who can exercise that right, and the circumstances in which they may do so.

Closely tied to this refusal to clearly recognise a constitutional right to vote is the court’s endorsement of the embargo on the voting rights of prisoners. Blanket prohibitions on voting are the surest way of alienating a political community. The embargo is particularly draconian, for all prisoners, regardless of the seriousness of their offences or the length of their sentences, are denied the vote. Moreover, prisoners awaiting trial are also denied this ‘privilege’.

It is one thing for the court to introduce transparency-promoting measures with a view to allowing change to take place organically, but quite another to change the rules of the game to match its conception of the ideal electoral system. The right to vote and the right to contest elections are fundamental markers of citizenship in a constitutional democracy. Incrementally yet decisively, the court is changing what it means to be a citizen of this country. It may soon take another step in that perilous direction.”

*The Hindu, April 18, 2017