Polity: the Constitution, representation, pressure groups and regulatory bodies

Elections were held together until 1967. The cycle broke when Houses were dissolved early.

The case for holding them together

Cost: One exercise instead of many, with staff and security forces deployed once.

Governance time: The model code freezes new decisions each time a state goes to the polls.

The accountability objection

Fewer chances to judge: A voter who must wait five years has less hold over a government.

The confidence rule weakens: A House that falls early is replaced only for the unexpired term.

National issues crowd out local ones: Studies suggest voters tend to back the same party in both polls.

What it would take

Amendments are needed: Articles 83, 85, 172 and 174 would all have to change.

The current attempt: The Kovind Committee, 2024 proposed a two step move. Bills are before a joint committee.

The savings are real but modest. The cost falls on accountability, which is harder to rebuild. Any move must keep the confidence rule intact.

Decode

Discuss a claim with two halves. Accept the first, then test the second.

Implicit demand

The real question is the confidence principle. A government must be able to fall.

Architecture

The history → the case for → the accountability objection → what it would take → verdict.

Articulation

Anchor: the cycle until 1967, Articles 83, 85, 172 and 174, the Kovind Committee. Money line: the cost falls on accountability, which is the harder thing to rebuild.

The case for holding them together

Elections were simultaneous in 1952, 1957, 1962 and 1967, so the idea is not new.

The Law Commission and a parliamentary standing committee have both examined it.

The NITI Aayog paper of 2017 argued for two phases of polling every five years.

A single electoral roll is part of the same proposal.

Repeated deployment of central forces strains both policing and the school calendar.

The accountability objection

Article 83 and Article 172 fix a five year term, subject to earlier dissolution.

A mid term poll would be for the unexpired term only.

A House elected for eighteen months has little reason to fear its own voters.

Federal concern: a state may be governed by a mandate given on national questions.

There is also a temptation to use Article 356 to bring cycles into line.

The wider debate

The Kovind Committee reported in 2024 and proposed local body polls within a hundred days.

A new Article 324A was proposed for panchayat and municipal elections.

The proposal on local bodies needs ratification by half the states.

South Africa and Sweden hold national and provincial polls together, under different systems.

Germany offers the alternative: a fixed term with a constructive vote of no confidence.

Articles 102 and 191 allow Parliament to prescribe disqualifications. The Representation of the People Act, 1951 is that law.

Grounds of disqualification

Conviction for listed offences: Section 8(1) covers offences such as promoting enmity, bribery and untouchability.

Certain economic offences: Section 8(2) covers hoarding, profiteering and food adulteration.

Any offence with two years: Section 8(3) disqualifies on conviction, and for six years after release.

No shield for sitting members: Lily Thomas, 2013 struck down the clause that gave them three months.

Corrupt practices: Section 8A applies once a court finds a corrupt practice proved.

Dismissal for corruption: Section 9 bars a dismissed government servant for five years.

Contracts and offices: Sections 9A and 10 cover government contracts and offices under state companies.

Election accounts: Section 10A bars a candidate who fails to lodge expenses, for three years.

Remedies available

Appeal and stay: A stay of conviction removes the disqualification, as Lok Prahari, 2018 confirmed.

A mere suspension of sentence is not enough: The conviction itself must be stayed.

Election petition: A challenge lies to the High Court within forty five days.

The constitutional route: Under Articles 103 and 192 the President decides, on the opinion of the Election Commission.

Relief from the Commission: Section 11 lets it remove or reduce a disqualification.

Writ jurisdiction: Articles 32 and 226 remain open where the process itself is challenged.

The grounds are wide and the remedies are real. The weak point is timing. A conviction can end a career before an appeal is heard.

Decode

Two plain demands. List the grounds, then set out the remedies.

Implicit demand

Keep the constitutional grounds separate from the statutory ones.

Architecture

The source of the power → grounds → remedies → verdict.

Articulation

Anchor: Articles 102 and 191, Sections 8, 8A, 9 and 11, Lily Thomas, Lok Prahari. Money line: the weak point is timing.

Grounds of disqualification

Article 102 itself lists office of profit, unsound mind, insolvency and loss of citizenship.

Section 8(1) also covers offences on foreign contributions and national honour.

A conviction with only a fine still disqualifies, for six years from that date.

The Tenth Schedule is a separate track. Defection is decided by the Speaker, not by a court.

Section 123 defines corrupt practices, which feed into Section 8A.

Remedies available

Lily Thomas v. Union of India, 2013 made disqualification immediate on conviction.

Lok Prahari v. Election Commission, 2018 held that a stay of conviction restores membership.

An election petition must be filed within forty five days of the declaration of result.

Section 116A gives a direct appeal to the Supreme Court from the High Court.

The opinion of the Election Commission under Articles 103 and 192 binds the President.

Section 11 relief has been granted where the disqualification was for a technical default.

The wider picture

Special courts for cases against sitting legislators were set up on court direction.

The Law Commission, 244th report examined disqualification at the stage of framing charges.

Candidates must declare criminal cases and assets in Form 26, following a 2002 ruling.

Failure to disclose is itself a ground of challenge in an election petition.

Parties must publish the criminal antecedents of candidates, and give reasons for selecting them.

Section 123 defines corrupt practices. A finding can come only from a court, on an election petition.

Why the present procedure fails

Only one route: The petition lies to the High Court, and nobody else may act.

It takes years: Many petitions are decided after the five year term has run out.

The standard is criminal: A corrupt practice must be proved almost beyond doubt.

What simplification should mean

Time bound trial: A statutory deadline of one year, with hearings from day to day.

Dedicated benches: A designated bench of the High Court to hear election petitions.

A role for the Commission: Power to inquire and refer, on the model of Section 10A.

What it should not mean

Not a lower standard of proof: Disqualification ends a career, so the burden must stay high.

The problem is delay, not difficulty. Simplify the procedure and fix the timeline. Leave the standard of proof where it is.

Decode

Comment on a proposal. Agree in part, and say clearly what should not change.

Implicit demand

Separate the procedure from the standard of proof. Only the first should be simplified.

Architecture

The present route → why it fails → what simplification should mean → what it should not → verdict.

Articulation

Anchor: Section 123, the election petition route, Section 10A, the Law Commission proposals. Money line: the problem is delay, not difficulty.

Why the present procedure fails

An election petition is filed under Section 80A before the High Court.

Section 86(7) asks for a trial within six months. In practice it is rarely met.

A petition abates on the death of the returned candidate, and often on a technicality.

Abhiram Singh, 2017 read the appeal to religion in Section 123(3) broadly.

The Election Commission has asked for power to act against paid news and false affidavits.

Proposals on record

The Law Commission, 255th report, 2015 examined electoral reform in detail.

It proposed making paid news a corrupt practice under Section 123.

It also examined disqualification once charges are framed for a serious offence.

The Election Commission has sought power to countermand a poll where bribery is established.

Section 10A shows the simpler model. Failure to file accounts is decided by the Commission itself.

The counter argument

Presumption of innocence applies until a court records a finding.

Charges are easy to file and hard to disprove before an election.

Political rivals could use the process itself as the punishment.

The better route is speed in the trial, not an easier finding of guilt.

Special courts for legislators were created for the same reason, and their record is mixed.

Article 368 gives Parliament the power to amend. There is no separate constituent assembly, and the hurdles are modest.

Procedural limitations

Only Parliament may begin: A bill can be introduced in either House, but not in a state legislature.

Special majority: A majority of the total membership, and two thirds of those present and voting.

Each House separately: There is no joint sitting to resolve a disagreement on an amendment.

State ratification for some: Half the states must agree where federal provisions are touched.

Which provisions: Election of the President, the High Courts and the Seventh Schedule.

Assent is not discretionary: The 24th Amendment made presidential assent obligatory.

Some changes need no amendment: Articles 4 and 169 allow certain changes by simple majority.

The substantive limitation

The basic structure: Kesavananda Bharati, 1973 held that the essential framework cannot be destroyed.

How the doctrine arrived: Shankari Prasad and Sajjan Singh allowed everything. Golaknath, 1967 turned the other way.

It has been used: Indira Nehru Gandhi, 1975 struck down a clause shielding an election from review.

And again: Minerva Mills, 1980 held that limited amending power is itself part of the structure.

Even the Ninth Schedule: I. R. Coelho, 2007 opened later insertions to review.

What has been included: Judicial review, federalism, secularism, free elections and judicial independence.

What this means in practice

The procedure rarely stops anything: More than a hundred amendments have passed.

The doctrine does: It has struck down parts of amendments passed by large majorities.

The procedural hurdles are low, so a determined majority clears them. The real limit is substantive, and the Court supplied it.

Decode

The stem gives a claim. Examine both kinds of limitation against it.

Implicit demand

The comparison is the answer. Procedure is weak, and the substantive limit does the work.

Architecture

Article 368 → procedural limits → the basic structure → the comparison → verdict.

Articulation

Anchor: Article 368, the special majority and ratification rule, Kesavananda, Minerva Mills and Coelho. Money line: the real limit was supplied by the Court.

Procedural limitations

The proviso to Article 368(2) lists the provisions needing state ratification.

These include the representation of states in Parliament and the extent of executive power.

Ratification requires only a simple majority in half the state legislatures.

There is no time limit within which the states must ratify.

Article 4 covers changes to state boundaries and names, by simple majority.

Article 169 allows abolition or creation of a legislative council in the same way.

The substantive limitation

Kesavananda Bharati v. State of Kerala, 1973 was decided by thirteen judges, seven to six.

Indira Nehru Gandhi v. Raj Narain, 1975 applied the doctrine to an amendment for the first time.

Minerva Mills, 1980 struck down clauses of the 42nd Amendment.

Waman Rao, 1981 fixed 24 April 1973 as the date for reviewing Ninth Schedule laws.

S. R. Bommai, 1994 treated secularism and federalism as part of the structure.

NJAC judgment, 2015 added judicial independence in appointments.

The debate around it

The doctrine has no textual basis, which is the standing criticism against it.

There is no closed list of basic features, so each case decides afresh.

Supporters point to the 42nd Amendment as proof that a limit was needed.

The 44th Amendment, 1978 undid much of it and restored judicial review of emergency.

Germany has an eternity clause in its Basic Law. That is the textual version of the idea.

Constitutional morality means fidelity to the values of the Constitution. Dr Ambedkar warned that it must be cultivated.

What the doctrine holds

The text is not enough: Institutions work only if those who run them respect its spirit.

It outranks popular sentiment: A majority view cannot decide the content of a right.

How the courts have used it

Naz Foundation, 2009: Popular morality cannot be a ground for restricting a right.

Manoj Narula, 2014: It was read as a duty on holders of constitutional office.

Navtej Singh Johar, 2018: Social morality gave way, and Section 377 was read down.

Sabarimala, 2018: A long standing custom was tested against equality, and failed.

The caution

The dissent has force: Justice Indu Malhotra warned it can become the judge's own view.

The content is not fixed: No provision defines it, so meaning shifts.

Constitutional morality stops a majority from reading the Constitution down to its own preference. Its strength depends on judges tying it to the text.

Decode

Explain, with decisions. The cases are not decoration here, they are the demand.

Implicit demand

The contrast with popular or social morality is what the doctrine actually means.

Architecture

The meaning → what it holds → the cases → the caution → verdict.

Articulation

Anchor: Dr Ambedkar in the Constituent Assembly, Naz Foundation, Navtej Johar and Sabarimala. Money line: it stops a majority from reading the Constitution down.

The origin of the phrase

Dr Ambedkar took the expression from the historian George Grote, writing on Athens.

Grote described it as a settled habit of obeying forms while criticising freely.

Dr Ambedkar quoted this in the Constituent Assembly on 4 November 1948.

He said constitutional morality is not a natural sentiment, and has to be cultivated.

His fear was that the form was democratic while the soil remained undemocratic.

He also warned against hero worship in politics, which belongs to the same argument.

What the doctrine actually asks for

Obedience to the text is the least of it. The spirit behind the text matters more.

It protects the person who is in a minority, whether of religion, gender or opinion.

An office holder should follow the purpose of a power, not only its words.

It tells a court to prefer the constitutional value over the prevailing social view.

It also supports conventions, which no court can enforce but which hold the system together.

Popular morality is what most people feel. Constitutional morality is what the document requires.

The decisions

Naz Foundation v. NCT of Delhi, 2009 is the first prominent use by an Indian court.

Manoj Narula v. Union of India, 2014 concerned ministers facing serious criminal charges.

Puttaswamy, 2017 located privacy in dignity, which is the same family of reasoning.

Joseph Shine, 2018 struck down the offence of adultery on similar grounds.

Indian Young Lawyers Association, 2018 is the Sabarimala case, decided four to one.

Government of NCT of Delhi v. Union of India, 2018 used it for the conduct of constitutional office.

Navtej Singh Johar, 2018 stated the contrast with social morality most clearly.

The criticism

Justice Indu Malhotra held that courts should not test religious practice by their own notions.

She warned that the doctrine could become a weapon in the hands of a judge.

The doctrine has no fixed content, so its meaning can change from bench to bench.

Critics say it lets a court read its own preferences into an open ended phrase.

The safeguard is to tie every use to a specific provision of the Constitution.

The review petitions arising from Sabarimala are still pending before a larger bench.