Thoughts on economics and liberty

Draft Writ Petition to the Supreme Court of India against compulsion for political parties to swear by the “principles of socialism”

Based on info here, and preliminary comments from a few people, a draft petition has now been prepared to be lodged in the Supreme Court by any capable and interested person on behalf of Swarna Bharat Party, for issue of a writ by the Supreme  Court against a specific requirement in section 29A(5) of the Representation of People Act 1951,  for all political parties of India to swear allegiance to the “principles of socialism”.

I’m sharing this preliminary draft widely, to invite all those with an interest in the principles of liberty and with ability to view the issue from a stringent legal perspective, to (a) comment on this draft petition and to (b) consider taking this forward on behalf of SBP to the Supreme Court.

This is fairly urgent, since the party is trying to get its act together, and this is a key legal obstacle.

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Download

the full petition here (in Word). Presented below is the key argument:

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  1. This writ petition challenges the compulsion imposed upon Swarna Bharat Party by the Respondents through the Representation of People Act 1951 (“ROP Act”) to swear allegiance to “the principles of socialism”. The petitioner will demonstrate that either there are no “principles of socialism” and such affirmation is futile and violative of Article 14 of the Constitution; or that these are real ideological principles, and therefore such affirmation is violative of Article 19 of the Constitution.

FACTS

  1. The petitioner was registered by the Election Commission of India (henceforth referred to as the “Election Commission”) as a political party vide. No. 56/102/2013/PPS-1 dated xx. A copy of the registration letter is annexed hereto and marked as Annexure xx.
  2. The application form for a political party to be registered by the Election Commission requires that the objectives of the party should be in consonance with the Constitution of India. In addition, it requires a declaration to the effect that the party “shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India”. A copy of the form for registration is annexed hereto and marked as Annexure xx. [http://eci.nic.in/eci_main/ElectoralLaws/guidelinesandformat.pdf]
  3. The Indira Gandhi government (through her Law Minister H.R. Gokhale) introduced the Constitution (42nd Amendment) Bill 1976 on 28 August 1976, during the Emergency. On 2 November 1976 the Constitution was duly amended. Section 2 of the Act inserted the words “socialist” and “secular” into the Preamble of the Constitution. A copy of the Constitution (42nd Amendment) Act 1976 is annexed hereto and marked as Annexure xx.
  4. Accordingly, the Preamble of the Constitution now commences with the assertion about “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”.
  5. It may be noted here that the words “socialist, secular” are explicitly excluded from the Constitution (Application to Jammu and Kashmir) Order, 1954.
  6. Perhaps consequentially but in a fundamentally different way, Section 6 of the Representation of the People (Amendment) Act 1989 (Act 1 of 1989) under the Rajiv Gandhi government inserted a Part IVA (which deals with the Registration of Political Parties) comprising Section 29A(5) in the Representation of the People Act 1951 (RPA). A copy of the Representation of the People (Amendment) Act 1989 is annexed hereto and marked as Annexure xx.
  7. Section 29A(5) reads as follows:

“(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.”

  1. Since mid-1994, every political party in India (including previously registered parties) has mandatorily been required by the Election Commission to swear allegiance to the “principles of socialism”. The Petitioner has no questions or dispute about the principles of secularism and democracy and therefore does not question the requirement in the registration form for political parties to swear allegiance to the “principles of secularism and democracy”.
  2. The Petitioner is, however, unclear about the “principles of socialism”. No explanation or details have been provided by the Election Commission in regard to these specific principles. Perhaps it is not the job of the Election Commission under India’s Constitution to define the principles of various economic ideologies.
  3. The Petitioner’s party remains committed, being a liberal party, to abolish the term “socialist” from the Preamble of the Constitution, through the democratic process. The Petitioner has a liberal agenda that needs to be canvassed with the people of India.
  4. The petitioner had no choice but to swear allegiance to the “principles of socialism” as a condition of registration, for it was impossible to operate as a functional organisation without such registration. The State Bank of India refused to open a bank account for the party unless it was registered. Further, registered political parties are allowed to offer an income tax exemption to their donors – not having registration would deprive the Petitioner of a significant proportion of donations that would otherwise be received. Without registration, the Swarna Bharat Party would have had no hope of even starting a bank account, leave alone soliciting donations.

Independent candidates not required to swear

  1. The Third Schedule to the Constitution, which contains the texts of oaths to be taken by candidates to the election of Lok Sabha and of the State legislatures has also not been modified following the amendment to the Preamble to the Constitution and the amendment to the ROP Act. The text of oaths required to be taken by individual candidates continue to be limited to swearing true faith and allegiance to the Constitution of India as by law established without any reference to the “principles of socialism”.
  2. The oath of allegiance to the principle of socialism is insisted upon only in cases of associations of persons wishing to be registered as a political party. The Petitioner further submits that the provisions of the ROP Act which deal with qualification and disqualification for membership to Legislature do not impose any such precondition. Nor do the provisions which lay down the requirement of a valid nomination lay down any such precondition.
  3. The effect of the relevant provisions of the ROP Act is that whereas individual candidates i.e. those not set up by a registered political party may contest elections without having to bear any allegiance to the (undefined) “principles of socialism”, parties which seek registration for the same purpose are required to do so.

Preamble as a derivative of the Constitution

  1. In the BeruBari vs Union case, the Supreme Court held that the Preamble is not a part of the Constitution. It is only “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the Preamble is not a part of the Constitution, therefore:

“it has never been regarded as the source of any substantive power. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted if necessary. However, if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought from the objectives enshrined in the preamble and construction which fits the Preamble may be preferred.”

  1. The Preamble notes that the Constitution refers to India being a “socialist republic”. It does not refer to any “principles of socialism”, nor require allegiance to any such principles anywhere in the body of the Constitution.
  2. The Petitioner bears unequivocal true faith and allegiance to the Constitution of India. By doing so, the Petitioner also swears allegiance to the power, through Article 368, to change the Constitution (including its Preamble) without altering its basic structure.
  3. There is, however, no obligation (in accordance with the BeruBari vs Union case) upon the Petitioner to bear true faith and allegiance to any specific elements of the Preamble which do not directly and precisely derive from the main body of the Constitution. In particular, the Petitioner rejects allegiance to India’s being a “socialist republic”. The insertion of “socialist republic” in the Preamble is irrelevant for purposes of this petition, as the Petitioner has never separately and specifically sworn allegiance to the Preamble.

Identifying the meaning of the “principles of socialism”

  1. Before attempting to understand the principles of something, one must first understand its meaning. The “principles of secularism” or of “democracy” are clear enough. It is also clear that India accepts the standard dictionary meaning for these words. However, it appears that India may not follow the dictionary meanings of socialism, which makes the need for a specific definition even more pressing.
  2. In the absence of any clear definition by the Respondent, the Petitioner has unilaterally searched for the meaning of “socialism”. The Petitioner finds that the term “socialism” has been applied to a large spectrum of theories over the last two centuries. The origin of the underlying political philosophy of socialism can be attributed to Rousseau, or even (in part) to Plato. However, the specific word “socialism” first appeared on 13 February 1832 in French newspaper Le Globe. In England, Robert Owen used the term “socialism” independently around the same time. A diverse array of doctrines and social experiments associated with Robert Owen, Charles Fourier, Pierre-Joseph Proudhon, Louis Blanc and Saint-Simon developed the ideas of socialism further. Key features included the reorganization of society along collectivist lines (mainly government ownership of the means of production).
  3. Marxian socialism with its theory of surplus value, Fabian socialism with its approach of Fabian deception, and guild socialism were among the many further developments of socialism. Socialism first shot into global prominence with Bolshevik scientific socialism and the violent creation of the USSR. Class conflict theories underpinned this form of socialism; its focus was on nationalization, central planning of the economy and dictatorship of the proletariat. There followed a few other versions, including Maoist and Guevarist, mostly on the same lines.
  4. Given this historic evolution of nearly 200 years, the word “socialism” is now widely understood (in the academic world of experts in political science and economics) to mean an economic system with a focus on equality of outcomes (not equality of opportunity), administered prices, minimal or non-existent property rights and significant (if not total) state control over the means of production.
  5. The following definitions of “socialism” illustrate the world-wide meaning of the word:
    1. social and economic doctrine that calls for public rather than private ownership or control of property and natural resources. [Source: Encyclopedia Britannica]
    2. a political and economic theory of social organization which advocates that the means of production, distribution and exchange should be owned or regulated by the community as a whole. [Source: Oxford Dictionary]
    3. political and economic theory of social organization which advocates that community as a whole should own and control the means of production, distribution and exchange; policy or practice based on this theory”. [The Concise Oxford Dictionary]
    4. a way of organizing a society in which major industries are owned and controlled by the government rather than by individual people and companies [Source: Merriam-Webster dictionary]
    5. “Under socialism all the means of production are the property of the community” – Ludwig von Mises, in Economic Calculation in the Socialist Commonwealth.
    6. “Central to the meaning of socialism is common ownership” – World Socialist Movement.
  6. In the Constituent Assembly, Dr. Ambedkar contrasted the socialist way of economic organisation with “the capitalist organisation of society”. This clearly indicated that he too, thought of socialism as an economic ideology which was the antonym of capitalism.
  7. In his presidential address to the Lucknow Congress in 1936, Nehru said that there was no way of ending the poverty and subjugation of the Indian people except through socialism. He was, he said, speaking of socialism not in a vague, humanitarian way, but in the ‘scientific, economic sense’, which would entail: “vast and revolutionary changes in political and social structure, the ending of vested interests in land and industry, as well as the feudal and autocratic Indian states system. That means the ending of private property, except in a restricted sense and the replacement of the present profit system by a higher ideal of cooperative service. It means ultimately a change in our instincts and habits and desires. In short, it means a new civilization, radically different from the present capitalist order.” [http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195645866.001.0001/acprof-9780195645866-chapter-9]
  8. Nehru was particularly influenced by Harold Laski whose key theoretical contribution was an (unsuccessful) attempt to combine socialism with democracy. To that extent, upon becoming Prime Minister, Nehru attempted to restrict private property but within the framework of the Indian Constitution, which is predominantly a liberal document. An example of this ungainly and highly questionable approach was to shelter land ceiling laws under Schedule 9 of the Constitution.
  9. The Indira Gandhi government’s reasoning regarding the term “socialist” can be deduced from the Statement of Objects and Reasons of the Constitution (42nd Amendment) Bill 1976, which said, inter alia:

“The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now. It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the nation”. [http://www.constitution.org/cons/india/tamnd42.htm]

  1. Indira Gandhi’s “socialism” was therefore seemingly about (a) ending poverty and ignorance, and (b) ensuring equality of opportunity. This interpretation, as can be clearly seen, is entirely at odds with standard definitions of “socialism”. Such a definition would be far more appropriately attributable to “liberalism”, to which the Petitioner subscribes. In fact, if any word represents the political ideology underpinning the Indian Constitution, it is liberalism.
  2. In 2005, Mr Sharad Joshi, MP proposed a Private Members Bill in the Rajya Sabha to seek abolition of the requirement to swear to the “principles of socialism”. In speeches made after his speech, Mr Ram Jethmalani, MP recognised socialism as a specific economic doctrine:

“The strongest point that Mr. Joshi, has made is that socialism is one of the many economic doctrines that have arisen in this world throughout the core world’s economic history. To say that you are bound down to a particular economic doctrine, is to curtail the liberty of speech, and which is inconsistent with democracy.”

  1. Having recognised this, Mr Ram Jethmalani amazingly said: “Today, socialism and supporters of socialism are becoming unpopular. There are some political parties which bravely say that they do not believe in socialism. It is their right to say it and they should be allowed to exist. It is not a practical wisdom to pursue this Bill here.” It appears that the Parliament is being operated on the basis not of Constitutional protections but on the basis of “practical wisdom” and hypocrisy.
  2. This overview suggests that across the entire world, socialism refers to a particular economic ideology that involves reduced property rights, truncation of the market system, and greater control by the government of the means of production. The essential part of all brands of socialism is the notion of the paramountcy of society over an individual, and social decision-making over individual behaviour. In India, however, there appears to be at least some confusion about its stated meaning, although evidence shows that at least until 1991, Indian governments led by all parties did follow the doctrinaire meaning that the rest of the world understands.

Indian courts’ opinions

  1. It is the role of the Supreme Court to clarify and interpret laws for the people of India. Its interpretations are also expected to be consistent with commonly understood interpretations.
  2. In Excel Wear vs. Union of India, (1978) 4 SCC 224, the Court stated that the “Concept of socialism or socialistic state has undergone changes from time to time, from country to country and from thinkers to thinkers. But some basic concept still holds the field. In the case of Akadasi Padhan, the question for consideration was whether a law creating a state monopoly is valid under the latter part of Article 19(6). The Court pointed out the difference between the doctrinaire approach to the problem of socialism and the pragmatic one. But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, it is not possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely (or to a very large extent) the interests of another section of the public – namely, the private owners of the undertakings. [1030 G-H. 1031 E-G]” [https://indiankanoon.org/doc/947038/]
  3. This suggested that a doctrinaire approach to socialism based merely on the Preamble was unlikely to be acceptable to the courts, given the overwhelmingly liberal nature of the Indian Constitution.
  4. In 2008, a Public Interest Litigation (PIL) was lodged in the Supreme Court seeking direction to delete the word “socialist” from the Preamble. While the petition was ultimately withdrawn, a bench comprising Chief Justice K G Balakrishnan, Justice R V Raveendran and Justice J M Panchal reportedly said, “Why do you (petitioner) take socialism in a narrow sense defined by (the) Communists. In broader sense, it means welfare measures for the citizens. It is a facet of democracy.” Further: “It hasn’t got any definite meaning. It gets different meaning in different times,” the bench observed. [Source: http://articles.economictimes.indiatimes.com/2008-01-09/news/27693385_1_word-socialist-pil-meaning]
  5. In 2013, a PIL was lodged by activist and trade union leader Subhash Sawant and businessman Ajay Mafatlal in the Bombay High Court to seek a precise definition of “socialism”. A division bench of Chief Justice Mohit Shah and Justice M S Sanklecha heard a petition. It was reported in the press that: “To give a precise definition of ‘socialism’ would be extremely difficult, said the Bombay High Court dismissing a PIL. … They said any endeavour to define socialism would bring to one’s mind celebrated words of eminent Fabian socialist, C E M Joad that “socialism was like a hat which had lost its shape because too many people had worn it”. [Source: http://timesofindia.indiatimes.com/city/mumbai/PIL-seeking-definition-of-socialism-quashed/articleshow/21889499.cms]
  6. The Courts therefore seem to think that socialism has no definite meaning; that giving a precise definition of socialism would be very difficult; or that it cannot be applied in any “doctrinaire” manner.
  7. It would be very hard for anyone to argue that “socialism” is meaningless. That would require showing that a government would deliberately undertake the effort to include a meaningless word into the Constitution.
  8. The only interest the Petitioner has at this stage in the word “socialism” is in the context of identifying the “principles of socialism” – to which political parties are asked to swear allegiance to by the ROP Act. If “socialism” has no meaning, then what do the “principles of socialism” mean? Or are these merely principles of convenience, like a joker in a pack of cards that can take any value or meaning?
  9. If the Election Commission considered verifying this party’s declaration of allegiance to the “principles of socialism”, it would first need to precisely define these principles. But since India does not have a legally valid understanding of “socialism”, the Election Commission would surely fail in this enterprise.

Rejection of the inclusion of “socialism” in the Constitution by the Constituent Assembly

  1. India’s Constituent Assembly, it appears, was far clearer about the meaning of the word “socialism”. And it did not think it fit to be included anywhere in the Constitution.
  2. On 15 November 1948, Prof. K T Shah proposed the following amendment: “India shall be a Secular, Federal, Socialist Union of States.” Shah made the following case for the inclusion of socialism. “By the term `socialist’ I may assure my friends here that what is implied or conveyed by this amendment is a state in which equal justice and equal opportunity for everybody is assured, in which everyone is expected to contribute by his labour, by his intelligence, and by his work all that he can to the maximum capacity, and every one would be assured of getting all that he needs and all that he wants for maintaining a decent civilised standard of existence,” said Prof. Shah.
  3. To this, Dr. Ambedkar responded: “Sir, I regret that I cannot accept the amendment of Prof. K T Shah. … [T]he Constitution … is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism whereby particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority of people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see, therefore, why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.” [Source: http://parliamentofindia.nic.in/ls/debates/vol7p6.htm; CAD, Vol. VIII, pp.401-402
  4. Later, the Constituent Assembly considered the Preamble, after the debates on every other provision had been concluded. The sentiments reflected in the Constitution found voice in the carefully crafted Preamble.
  5. During this concluding process of Constitution making, a member – Shri Brajeshwar Prasad – moved an amendment seeking the inclusion of the establishment of a “Socialist Order” within the Preamble.
  6. This was rejected by the Constituent Assembly. This suggests that the Constituent Assembly did think that “socialism” was a specific economic ideology, and hence unsuitable for inclusion in the Constitution.

Socialism as a failed economic system

  1. By 1980, socialism was considered a ridiculous doctrine the world over. First, China switched from an extreme form of socialism to a far more market based economy in 1979 and is till today reaping the rewards of such a shift in economic policy; then, India was bankrupted by its socialist policies and forced to liberalise the economy. Finally, the USSR collapsed in December 1991 under the weight of its radically socialist policies. The historic fall of the Soviet Union put an end to the march of socialism.
  2. Socialistic economics has been found to be bad not only in theory but also in practice. Across the world, socialist countries have collapsed under the weight of their own non-viability. Even the Government of India admitted to the numerous errors of its socialist past and since 1991, moved onto an increasingly market-oriented path. Foreign Direct Investment in multi-brand retail, disinvestment of public enterprises (limited though they may be currently) and removal of unnecessary barriers on production: these are all signature policies of a liberal (or market-oriented) rather than a socialist economy. The fact that we have multiple providers of mobile phone services now (instead of only a government provider) is also a well-understood illustration of why India is less socialist even in the doctrinaire way.
  3. The Petitioner’s analysis shows that socialism is at the root of India’s poor economic performance over the past 65 years – relative to the performance of countries that were similarly placed to India but chose the policies of freedom and have performed 10 times better. The only real gains in India’s economic performance have come since 1991 from policy initiatives (commonly known as liberalisation) that removed the stranglehold of the government over the economic decisions of the people and hence moved away from socialism.
  4. It is now accepted almost universally that mankind has, to date, not invented anything better than the market mechanism for arriving at the best decisions and allocation of resources for a society. In the guise of socialism, decision-making for society was hijacked across the world by a few individuals for their self-advantage. Instead, it is individuals pursuing the fulfilment of their unique personality and goals, and freely interacting with each other in the marketplace, that tends to produce the most desirable results. There are no “Masters”, either spiritual or economic, in such a free society. That was also the instinct found in the Indian Constitution till the reference to socialism was introduced.
  5. To the extent various governments of India have moved away from socialist principles, they may now be in violation of the Preamble to the Constitution.

QUESTIONS OF LAW

  1. Given these facts, some questions of law arise.

Laws must be unambiguous

  1. The word “socialism” either has a doctrinaire/ ideological meaning, or – as some Indian Courts seem to suggest – no meaning at all. The Petitioner, upon reviewing the available information, has concluded that “socialism” does have a doctrinaire, ideological meaning. The petitioner’s worldview is diametrically opposed to the ideological interpretation associated with the term “socialist”.
  2. This would imply the existence of actionable “principles of socialism”, although there would potentially be a legitimate debate in the academia about the extent and relative priority of some of these principles. If “socialism” is “real”, then any compulsion to swear allegiance to it impacts upon the Petitioner’s fundamental right to thought and speech (Article 19).
  3. Should this Court confirm that the word “socialism” has no legal meaning, a question of law would arise regarding the ROP Act’s mandatory requirement being arbitrary, hence in violation of Article 14. A requirement to declare allegiance to a tenet that is shrouded in vagueness serves no possible purpose and is an unnecessary and arbitrary law.

Laws must be enforceable

  1. In the absence of any legally accepted definition of the “principles of socialism”, there is no possibility for the Election Commission to conduct any verification of the truth of any party’s oath to the “principles of socialism” in its memoranda or regulations; nor accordingly any instance of registration being denied to or withdrawn from any party on the basis of the proven falsehood of such an oath.
  2. This makes the imposition of such a law arbitrary and whimsical. There is no need of “make-believe” laws and “make work” forms.

GROUNDS

  • That, being aggrieved by the impugned actions of the Respondent 1 in enacting the ROP Act and of Respondent 2 in enforcing the requirement through a form which does not clarify the “principles of socialism”, thus violating either Article 14 or 19 of the Constitution, in addition to numerous other reductions in the basic rights, the Petitioner is constrained to invoke the jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India on the following (amongst other) grounds which are taken in the alternative and without prejudice to one another.

a) If the word “socialism” has any actionable meaning

Violation of Article 19 (a) of the Constitution

  1. It is a first principle of democracy that social and economic policy must be determined by the people of each generation. The Constitution must prescribe the rules of the game, not the outcome.
  2. If the word “socialism” has an actionable meaning, then for the ROP Act to mandate all political parties to bear allegiance to the “principles of socialism” (yet to be defined) as a precondition of registration, violates the fundamental right of freedom of expression and thought.
  3. Section 29(A)(5) of the ROP Act, in as much as it compels an association or a political party to bear allegiance to the principle of socialism as a precondition to its applying for registration as a political party, has the effect of hindering and inhibiting the formation of a political party with full advantages of registration and its functioning in the political arena of the country, unless it conforms to a certain point of view. The said provision is not saved by sub-clauses 2 and 4 of article 19 in that it has no bearing on the sovereignty and integrity of India or public order.
  4. This constitutes an unreasonable and unjustified denial of the advantages of registration only because of the fact that, as an association, the said individuals are non-socialists.
  5. Forcing all Indian political parties to believe in socialism as the only valid system for the economic organisation of India is tantamount to forcing all Indians to believe in a particular view of the creation of humanity or a particular view about God.

Violation of Article 19 (c) of the Constitution

  1. That socialists have the possibility of organising themselves as political parties while those having problems of conscience in declaring adherence to socialism (assuming it has any actionable meaning) should be stopped from organising themselves in to a political party is wholly discriminatory, and hence, clearly in breach of the fundamental right of association (Article 19(c)). The right of a non-socialist citizen to hold his personal views and be entitled to all the privileges enjoyed by the socialist fellow-citizens cannot be denied. Compulsion makes it a moral dilemma for the petitioner. Should the party abide by the real meaning of socialism or the take shelter under the defence of the vagueness and meaningless of the word?

Different rules for different candidates is violation of Article 14 of the Constitution

  1. It is submitted that for the purposes of the said Act, namely to confer and regulate the right to contest election, there is no intelligible differential between political parties and individual candidates. There is no mention of political parties in the Constitution. The fact that the Government can create a separate law applicable to regulate political parties is not being questioned. The fact that candidates form political parties are held to a different standard than other candidates is an issue. The provision i.e. Section 29(A)(5) which only requires political parties to bear allegiance to the “principles of socialism” is wholly discriminatory and void being in violation of Article 14 of the Constitution of India.

Vagueness is a violation of Article 14

  1. Sections 29(A)(5) of the ROP Act suffers from the vice of vagueness in that it compels an association to swear allegiance to the “principles of socialism” without any attempt to define or even indicate the meaning of the term “socialism”. The Section is, therefore, illegal and unconstitutional being arbitrary and, therefore, violative of article 14 of the Constitution of India.

Violation of the basic intent and structure of the Constitution

  1. Democracy is a fundamental part of the basic structure of the Constitution. Democracy is about pluralism in opinion. Similarly, secularism is about pluralism in religious belief. However, the 42nd Amendment creates a particular ideological bias, which is against the principles of a multi-party democracy and affects its basic structure. The ROP Act compels all parties to follow a particular ideology, thus almost entirely sabotaging the possibility of any future amendment to the Preamble through the party’s access to the Legislature. It is not consistent with democracy (hence with the basic intent of the Constitution) to impose a specific Western idea (“principles socialism”) on all political parties of India.
  2. Further, the essence of democracy is that a citizen must have the right and the possibility (at par with any other citizen) to canvass – by constitutional means, such as by forming a political party – to change the dispositions of the Constitution in accordance with his inclinations, howsoever unreasonable they may look to others. Section 29(A)(5) of the ROP Act blocks committed non-socialists (such as the Petitioner) from agitating as an organised political party in favour of getting the Constitution modified in their favour by entering the Legislature. The restriction imposed by Section 29(A) has the effect of virtually denying the right to attempt an amendment of the political philosophy reflected in the Constitution of India.
  3. The right of a non-socialist citizen to hold his personal views and be entitled to all the privileges enjoyed by the socialist fellow-citizens cannot be denied. In particular, to access the legislative body as a party cannot be hindered by denying him the privileges of registration if he questions allegiance to the “principles of socialism”.
  4. It is not conceivable for India to call itself a democracy while at the same time forcing all its political parties into the straightjacket of socialism.

Oath of allegiance to the Constitution and to “principles of socialism” mutually contradictory

  1. The meaning of the word “socialism”, as commonly understood, is quite different to the system based on justice and liberty that is envisaged in the Constitution of India. Certain traits of socialism are repugnant (if not opposed) to the basic principles and structure of the Constitution of India; for example, dictatorship of the proletariat and even atheism. Despite significant truncation of property rights, for instance, there do continue to be a significant level of property rights and associated fundamental rights in the Constitution. Such rights do not exist in like measure in a socialist society.
  2. The idea of a socialist India is incompatible with its Constitution. It follows that oath of allegiance to both the Constitution of India and to the “principles of socialism” are in good part mutually contradictory.

Breach of the purpose of the ROP Act

  1. Section 29(A)(5) makes a hostile and invidious discrimination between political parties which bear allegiance to the principles of socialism, and those which do not.
  2. It is submitted that qua the election law, the differences in beliefs or political philosophies which parties may hold cannot become a ground for discriminating between them, so as to confer certain privileges only on parties holding one set of beliefs as long as the beliefs do not contradict or adversely affect the sovereignty and integrity of India or public order. Such a difference, as is sought to be emphasized by section 29(A)(5), is without any basis and has no nexus with the purpose of the Act, which is avowedly an Act which provides “for the conduct of elections to the Houses of Parliament and to the House or Houses of Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decisions of doubts and disputes arising out of or in connection with such elections”.

b) If the word “socialism” has no actionable meaning

  1. If the word “socialism” has no actionable content, why is it even present in the Indian Constitution and why does the ROP Act require allegiance to the “principles of nothingness”? In that case, the use of the words “principles of socialism” in the ROP Act is violative of Article 14 and must be expunged.

AVERMENT

  1. The petitioner avers that the proper meaning of the word “socialism” refers to a specific way of organising the economy. If that is true, then, as Dr. Ambedkar had clarified, it is not the business of a Constitution to prescribe the specific way by which an economy is to be organised. When Mrs Indira Gandhi introduced the word, “socialist” into the Preamble, she was responsible for effectively (in Dr. Ambedkar’s own words) “destroying democracy altogether”.
  2. The Petitioner seeks relief from being forced to reject his own analytically formed beliefs in order to exercise the basic democratic right of continuing as a registered political party in India.
  3. That the Petitioner has not filed any other or similar Petition before this or any other court in respect of the issues raised in the present Writ Petition.
  4. The Petitioner states that his rights are protected under the Constitution of India and the Petitioner is entitled for the reliefs prayed herein.
  5. The Petitioner craves leave to add to, to alter, to amend, to delete, to vary any of the grounds urged hereinabove if necessity may demand or occasion may require.

PRAYER

It is therefore prayed that this Hon’ble Court may be pleased:

  1. if it is determined that the word “socialism” has an actionable meaning, to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ order or direction and thereby strike down Section 29(A)(5) of the Representation of the People Act 1951 to the extent that it mandates adherence to the “principles of socialism”, thus being a violation of Articles 14, 19(1)(a) and 19 (1)(c) of the Constitution, apart from being a violation of the basic intent of the Constitution.
  2. if it is determined that the word “socialism” has no actionable meaning, to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ order or direction and thereby strike down Section 29(A)(5) of the Representation of the People Act 1951 to the extent that it mandates adherence to the “principles of socialism” as being arbitrary and unnecessary, thereby in violation of Article 14 of the Constitution.
  3. Pass such other and further orders as this Court may deem fit and proper in the facts and circumstances of this case.
  4. To award costs of the petition.

Sanjeev Sabhlok

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