India'S Participatory Model: The Right To Information in Election Law

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INDIA’S PARTICIPATORY MODEL: THE RIGHT TO

INFORMATION IN ELECTION LAW
MANOJ MATE*
INTRODUCTION
This Article analyzes the development and evolution of the con-

stitutional right to information in election law in India. I argue
that this evolving jurisprudence reflects a unique “positive rights”
participatory model of speech,1 distinct from other models of
speech in liberal democracy, including deliberative democracy.2
The primary problem with contemporary conceptions of public
discourse in liberal democracies like the United States is that they
* Associate Professor of Law, Whittier Law School, Professor (by courtesy) of Politi-
cal Science, Whittier College; Director, Center for International and Comparative Law;
Member, California Bar; Chair-elect (2015–present), Section on Law and South Asian
Studies, American Association of Law Schools (AALS); Ph.D. 2010, Political Science, Uni-
versity of California, Berkeley; M.A. 2010, Political Science, University of California, Berke-
ley; J.D. 2000, Harvard Law School; B.A. 1997, Political Science, University of California
Berkeley. This Article was recently selected for presentation at the 2015 Annual Meeting
of the AALS Section on Comparative Law. Special thanks to Teemu Ruskola for serving as
a discussant and for his valuable comments and feedback, and to Seval Yildirim for her
insights on the project. I also thank Robert Post, Bruce Cain, Jonathan Glater, David Men-
efee-Libey, Thad Kousser, Stewart Chang, and Erez Aloni for comments. All errors are my
own.
1. See generally Robert Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of
Public Discourse, 64 U. COLO. L. REV. 1109 (1993) [hereinafter Post, Meiklejohn’s Mistake]
(critiquing the failure of the collectivist model of free speech to protect the autonomy of
speech and public discourse and articulating a “participatory model” of speech); ROBERT
POST, CITIZENS DIVIDED: CAMPAIGN FINANCE REFORM AND THE CONSTITUTION (2014) [here-
inafter POST, CITIZENS DIVIDED] (analyzing the relationship between discursive democracy
and representative democracy in U.S. politics and suggesting that campaign finance
reform regulations on corporate speech could be justified by the interest in electoral
integrity).
2. See infra Parts I and II (discussing pluralist, deliberative, and participatory theories
of democracy). See ROBERT DAHL, PREFACE TO DEMOCRATIC THEORY 125 (1956) (advancing
a pluralist theory of representative democracy); JÜRGEN HABERMAS, BETWEEN FACTS AND
NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 165 (1992)
(advancing a proceduralist model of deliberative democracy theory); CAROLE PATEMAN,
PARTICIPATION AND DEMOCRATIC THEORY 2, 17–21 (1970) (analyzing the historical geneal-
ogy of participatory democracy theory).
377
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378 The Geo. Wash. Int’l L. Rev. [Vol. 48
are based on a contextual understanding of autonomy that ignores

underlying inequality and distortions within public discourse.3
This conception of autonomy limits the possibility and scope of
state intervention in the public sphere aimed at mitigating the
effects of inequality on participation and governance. Indeed, con-
temporary scholarship on political reform in the United States sug-
gests that the unchecked rise of corporate power, coupled with a
laissez-faire constitutional and regulatory framework, threatens to
erode the foundations of republican democracy.4
From a global perspective, the decisions in Citizens United and
McCutcheon represent a stark conception of free speech in “liberal
democracy.”5 This vision is grounded in an understanding of the
First Amendment as providing almost absolute protection of the
autonomy of public discourse and speech in elections against gov-
ernment interference, including protections for corporate speech.
As Robert Post has argued, contemporary free speech jurispru-
dence in the United States is based on a unique “participatory
model” of speech that is premised on the autonomy of public dis-
course and on the formation of public opinion through individual
expression in “discursive democracy.”6 The primary goal of free-
dom of speech, according to Post, is one of democratic legitima-
tion through individual expression in autonomous public
discourse.7
This Article critically assesses models of free speech in liberal
democracy that are based on advancing a particular conception of
autonomy. I suggest that India’s right to information regime
presents an alternate model that can enhance participation and
promote informed public discourse. This alternate model is based
3. See Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually
Existing Democracy, 25/26 SOCIAL TEXT 56, 56–57, 60–63, 65–67, 71–76 (1990) (analyzing
the shortcomings of Habermas’ theory of the public sphere).
4. See LAWRENCE LESSIG, REPUBLIC LOST: HOW MONEY CORRUPTS CONGRESS AND A
PLAN TO STOP IT 17–20 (2011) (describing the problem of “dependence corruption” in
U.S. politics); see also Joseph Fishkin & William Forbath, The Anti-Oligarchy Constitution, 94
B.U. L. REV. 669, 669–71 (2014) (arguing that extreme levels of economic inequality and
oligarchic concentrations of power pose threats to republican democracy); TIMOTHY
KUHNER, CAPITALISM V. DEMOCRACY: MONEY IN POLITICS AND THE FREE MARKET CONSTITU-
TION 9–11 (2014) (tracing how the U.S. Supreme Court’s campaign finance reform juris-
prudence has allowed corporate power to dominate democracy).
5. Citizens United v. FEC, 558 U.S. 310, 311 (2010); KUHNER, supra note 4, at 12–14; R
Zephyr Teachout, Neoliberal Political Law, 77 LAW & CONTEMP. PROBS. 215, 219 (2015) (dis-
cussing the First Amendment rationale for the majority’s opinion in Citizens United); see
McCutcheon v. FEC, 134 S. Ct. 1434, 1438 (2014).
6. POST, CITIZENS DIVIDED, supra note 1, at 36–37. R
7. Id.
2016] India’s Participatory Model 379
on a distinct conception of speech in which the state and other

institutions play a central role in informing voters, regulate and
broaden the scope of public discourse in elections, and shape how
voters and citizens interact with the state through the exercise of
informational access rights that effectuate governance
accountability.
Through a series of recent decisions, the Supreme Court of
India and Delhi High Court have held that Article 19 of the Indian
Constitution guarantees voters a positive constitutional right to
information in elections.8 In Union of India v. Association for Demo-
cratic Reforms, the Supreme Court of India held that the right of the
voter to know the antecedents of a candidate, including informa-
tion about candidates’ financial assets, criminal records, and edu-
cation, is part of the right to know, protected by Article 19(1)(a).
The court further noted that protecting this right is essential to the
survival of democracy and is the basis for free and fair elections.9
In subsequent judicial and administrative decisions, that right and
its underlying rationale, has been held to mandate disclosure of
information regarding the assets and criminal records of legislative
candidates,10 has been drawn on to evaluate the constitutionality
and legality of election manifestos promising “freebies” to voters,11
and has been held to include the right to vote for “none of the
above.”12 This jurisprudence is based on a fundamentally distinct
understanding of public discourse in the public sphere, the rela-
8. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 (India)
(holding that Article 19(1) of the Indian Constitution guarantees a voters’ constitutional
right to know the financial, criminal, and educational antecedents of candidates in elec-
tions); People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399, 403–04
(India) (reaffirming voters’ right to information in elections and invalidating a legislative
provision enacted to override and limit the Supreme Court’s earlier decision in Union of
India v. Association v. Democratic Reforms, (2002) 5 SCC 294 (India)).
9. Union of India, 5 SCC at 294. For scholarship on election law and reform in
India, see David Gilmartin & Robert Moog, Introduction to Election Law in India, 11 ELECTION
L.J. 136 (2012); see also Ujjwal Kumar Singh, Between Moral Force and Supplementary Legality:
A Model Code of Conduct and the Election Commission of India, 11 ELECTION L.J. 149 (2012);
M.V. Rajeev Gowda & E. Sridharan, Reforming India’s Party Financing and Election Expenditure
Laws, 11 ELECTION L.J. 226 (2012).
10. People’s Union for Civil Liberties, 4 SCC at 403–04.
11. S. Subramaniam Balaji v. Union of India, (2013) 9 SCC 659 (India) (holding that
political parties’ promises of “freebies” to voters in election manifestos do not constitute
corrupt practices under Representation of People Act of 1951, but recommending that
Election Commission of India issue directives regulating how party manifestos include
freebies).
12. People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 (India)
(holding that the right to vote for “none of the above” is protected as part of the freedom
of speech and expression under Article 19(1) of the Indian Constitution).
tionship between the state and civil society, understandings of elite

political discourse, and the role of the state under India’s
Constitution.
Through descriptive analysis of decisions and orders of the
Supreme Court of India, Election Commission of India, and Cen-
tral Information Commission, this Article challenges contemporary
understandings of the nature of public discourse and popular par-
ticipation in liberal democracy.13 It argues for distilling insights
from critical theories of liberal democracy through the lens of
India’s unique constitutional and political structures, its historical
traditions and narratives, and the socio-economic realities of
India’s democracy. In addition, these judicial and administrative
decisions must be analyzed in light of the unique challenges facing
India’s political system. As Amartya Sen and Jean Dreze argue,
India faces significant challenges in the area of development, and
high levels of inequality, poverty, and illiteracy that can affect dem-
ocratic participation.14 India’s political system is also beset by sig-
nificant corruption, criminality, and weak accountability
mechanisms.15
India’s unique constitutional structure and traditions of judicial
activism offer a distinct framework for addressing key weaknesses
of liberal democracy, including challenges in developing democra-
cies.16 If fully implemented, the positive rights participatory model
13. This Article advances a conception of the participatory model that is analytically
distinct from Robert Post’s participatory model. See Manoj Mate, High Courts and Election
Law Reform in the United States and India, 32 B.U. INT’L L.J. 104–05, 131–32 (2014) (compar-
ing the jurisprudential approaches of the U.S. and Indian Supreme Courts in electoral
reform and detailing differing free speech and First Amendment approaches).
14. Sunila Kale, The State of the States, in THE STATE OF INDIA’S DEMOCRACY 209–218
(Sumit Ganguly et. al. eds., 2007) (analyzing the impact of spatial inequality at the state
level on Indian democracy); see JEAN DRÈZE & AMARTYA SEN, INDIA: DEVELOPMENT AND PAR-
TICIPATION 347–63 (2002) (analyzing the gap between functional democratic institutions
and democratic practices and the impact of social and economic equality on democratic
participation); see infra Part V.A. See generally FRANCINE FRANKEL, INDIA’S POLITICAL ECON-
OMY 1947-2004: THE GRADUAL REVOLUTION (Oxford Univ. Press, 2d ed. 2005) (1978) (pro-
viding a political history of the evolution of economic policy from early statist socialism
through the post-liberalization era); see generally Pranab Bardhan, Inequality, Inefficiency, and
the Challenges for Social Democracy in India’s Economic Transition, in AN INDIAN SOCIAL DEMOC-
RACY, ACADEMIC FOUNDATION 18–39 (S. Khilnani & M. Malhoutra eds., 2013) (explaining
the detrimental effect of India’s pervasive social, political, economic, and educational ine-
quality on its ability develop a “social democracy” and the need to develop and agree on
social protection ideology and programs to combat the inequality).
15. See generally DRÈZE & SEN, supra note 14 (analyzing the gap between functional R
democratic institutions and democratic practices and the impact of social and economic
equality on democratic participation).
16. See infra Part III.
can help counteract the high level of distortion in developing

democracies that is a product of elite domination of public dis-
course and governance, and pervasive corruption and criminality.17
In India, the positive rights participatory model could help address
the gap between elite-dominated political discourse and govern-
ance, as well as mass discourse.18
Within the context of an activist constitutional state like India, I
suggest that courts and independent agencies can play an impor-
tant oppositional role vis-à-vis other state actors in enhancing pub-
lic discourse and participation. In India, this oppositional role can
help address key problems, including the lack of informed voting,
the elite skew of media and political discourse, corruption and
criminality, and the resistance of political parties to reform.
Under the positive rights participatory model, these oppositional
state actors, along with civil society, media, and other institutions,
can effectuate meaningful participation in several ways. First, they
can promote greater degree of autonomy within the public sphere
through regulations aimed at curbing distortion of the political sys-
tem by private corporate, criminal, and other entities that have
weakened representative democracy. Second, enforcing the posi-
tive right to information can help enhance the inclusivity of the
public sphere by catalyzing new social movements. Third, opposi-
tional state institutions can play a crucial role in regulating public
discourse in order to ensure greater access to and inclusivity within
public discourse and to promote ideologically-based debate within
democracy. A key takeaway highlighted by this Article is that
courts, commissions, and other oppositional actors, play a key role
in constructing the meaning of the right to information in India.
Part I of this Article analyzes conceptions of participation and
speech in theories of liberal democracy. Part II critically analyzes
conceptions of the public sphere in deliberative democracy by
identifying the flaws in that model, including the challenges of
autonomy, access, and accountability. Part III traces the develop-
ment and implementation of the right to information in elections
in India through analysis of recent judicial and administrative deci-
sions. In Part IV, the Article advances a “positive rights” par-
17. Cf. JEAN DRÈZE & AMARTYA SEN, AN UNCERTAIN GLORY: INDIA AND ITS CONTRADIC-
TIONS 265–69 (2013) (discussing how the dominance of upper class and intellectual elites
distorts news media coverage and political discourse in India).
18. See SUDIPTA KAVIRAJ, THE IMAGINARY INSTITUTION OF INDIA: POLITICS AND IDEAS
20–22 (2010) (discussing the significant gap between elite and mass discourse in Indian
politics and governance).
ticipatory model of speech based on insights from the Indian right

to information regime. Part V analyzes how the positive rights par-
ticipatory model may address the shortcomings of deliberative
democracy by promoting participatory equilibrium.
I. PARTICIPATION AND SPEECH IN LIBERAL DEMOCRACY THEORY

The uniqueness of India’s right to information jurisprudence
must be understood in terms of India’s constitutional and political
traditions, including distinct understandings of the nature of
speech and public discourse. Significantly, India’s right to infor-
mation regime rests on particular understandings of speech and
public discourse and their relationship to participation in democ-
racy, which are fundamentally distinct from understandings of
speech and participation in the United States and traditions of
western liberal democracy.
As a modern liberal democracy forged within the context of a
post-colonial legacy, India’s constitutional structure and political
system were based in part on features of western liberal constitu-
tionalism.19 India’s constitutional structure includes a system of
parliamentary democracy and a constitution that recognizes a set
of justiciable fundamental rights, judicial review, and an indepen-
dent judiciary.20 However, India’s constitutional structure and
political system also developed key features that were unique,
including a set of aspirational directive principles.21 As illustrated
in Part III, these principles were aimed at effectuating social and
economic change and transformation, and courts in India have
invoked these principles in expanding the scope of rights, and cre-
ating new rights. In the right to information cases, courts have
interpreted these principles, in conjunction with the right to free
speech and expression, to impose positive obligations on the state
to provide information to voters and citizens.
This Section analyzes and assesses conceptions of participation
within theories of liberal democracy. At the heart of liberal demo-
cratic theory lies a core tension between liberalism and republican
democracy.22 This entails reconciling the domains of the econ-
19. See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION 50–51 (1966); GARY JACOBSOHN,
WHEEL OF LAW: INDIA’S SECULARISM IN COMPARATIVE PERSPECTIVE 189–91 (2003) (analyzing
the Supreme Court of India’s approach to secularism in key decisions).
20. See AUSTIN, supra note 19. R
21. Id. at 76. The directive principles were in part based on the Irish Constitution’s
Directive Principles of State Policy.
22. See Owen Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1407–08 (1986)
(advancing a collectivist model of the First Amendment); see also Fraser, supra note 3, at 63 R
omy, and of civil society and the public sphere, with the domain of
government.23 Elements of pluralist-representative democracy and
deliberative democracy dominate modern democratic systems.
Both conceptions create opportunities for distortion in governance
and discourse by dominant economic elites, and both heavily con-
strict the possibility of active participation in discourse and govern-
ance. A positive rights participatory model based on the right to
information can address these weaknesses.
A. Pluralism and Representative Democracy

At the turn of the twentieth century, scholars of democratic the-
ory began challenging “classical” participatory theories of democ-
racy based on direct and active citizen participation.24 In
alignment with the emergence of systems of representative democ-
racy, scholars argued for a more elite-centered conception of
democracy.25 In the early 1940s, Joseph Schumpeter offered a cri-
tique of classical democratic theory and articulated a theory of rep-
resentative democracy.26 Schumpeter challenged the role of
citizens in participation and decision making in the classical theory
and instead suggested that democracy must be understood as a
“political method” that provides for certain “institutional arrange-
ment for arriving at political decisions in which individuals acquire
the power to decide by means of a competitive struggle for the
peoples’ vote.”27 Schumpeter argued for a system of democracy
based on competitive elections in which the scope of voters’ partici-
pation was limited to voting for candidates in elections.28 Accord-
ingly, Schumpeter emphasized the functioning of representative
democracy and competitive party systems as a mechanism for
aggregating interests and preferences.29
(highlighting how social and economic inequality undermines participatory parity in

democracy).
23. See Fraser, supra note 3, at 65–68, 71–76. R
24. See PATEMAN, supra note 2, at 17–21; see also JÜRGEN HABERMAS, Three Normative
Models of Democracy, in J. HABERMAS, THE INCLUSION OF THE OTHER 239 (Ciara Cronin &
Pablo de Greiff eds., 1998).
25. PATEMAN, supra note 2, at 2 (describing the development of scholarship advocat- R
ing for elite-ruling democracy). Early scholarship includes JOSEPH SCHUMPETER, CAPITAL-
ISM, SOCIALISM AND DEMOCRACY (1943); ROBERT DAHL, PREFACE TO DEMOCRATIC THEORY
(1956); ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957).
26. PATEMAN, supra note 2, at 3–4 (citing SCHUMPETER, supra note 25, at 242). R
27. Id. at 3–4.
28. Id.
29. Id.
In the 1950s, scholars including Robert Dahl and David Truman

articulated a more comprehensive theory of representative democ-
racy explicitly based on pluralism. This new scholarship empha-
sized the important role and power of interest groups in U.S.
politics, and in his work, Dahl argued for a theory of democracy as
polyarchy—rule by multiple minorities.30 Dahl’s polyarchy fused
competitive elections and representative democracy with a pluralis-
tic conception of rule by minorities in a political system.31 Argua-
bly, most representative democracies in the West have embraced
variants of welfare state bureaucracies dominated by interest group
politics consistent with pluralist model.32
B. Deliberative Democracy
A second conception of democracy in western liberal scholarship
is deliberative democracy.33 In recent years, scholars have shown
renewed interest in deliberative or discursive democracy and have
framed it as an alternative to the pluralist model.
1. The Proceduralist Model of Popular Sovereignty

In his work on deliberative democracy, Jürgen Habermas has
articulated a model of democracy based on the relationship
between public discourse and popular sovereignty.34 Habermas
30. See generally DAVID TRUMAN, THE GOVERNMENTAL PROCESS (1951); DAHL, supra note
25, at 84. R
31. See Richard Krouse, Polyarchy and Participation: The Changing Democratic Theory of
Robert Dahl, 14 POLITY 441, 443–44 (1982) (citing DAHL, supra note 25, at 75, 84). R
32. See ROBERT DAHL, DILEMMAS OF PLURALIST DEMOCRACY (1982). Habermas argues
that as nations in Europe moved past the enlightenment to an era of democratization, the
ideals of rational deliberation in public discourse was displaced by interest-group politics.
See JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE 105–08,
130–33 (1962).
33. For a definition of deliberative democracy, see Seyla Benhabib, Democracy and Dif-
ference: Contesting the Boundaries of the Political, in DELIBERATIVE DEMOCRACY: ESSAYS ON REA-
SON AND POLITICS (James Bohman & W. Rehg, eds., 1997); see also JOHN DRYZEK,
DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS, in DELIBERATIVE
SYSTEMS: DELIBERATIVE DEMOCRACY AT THE LARGE SCALE (John Parkinson & Jane Man-
sbridge eds., 2012). This Article analyzes discursive democracy as distinct from, but par-
tially overlapping with “deliberative democracy.” While aspects of deliberative democracy
may be understood as constituting part of discursive democracy, deliberative democracy
also includes actual mechanisms for promoting deliberation. In contrast, this Article
understands discursive democracy as referring to the discursive processes of the public
sphere that result in the formation of public opinion. See POST, CITIZENS DIVIDED, supra
note 1, at 49. R
34. For a non-exhaustive list of some of the leading works of Habermas referenced in
this Section, see generally HABERMAS, STRUCTURAL TRANSFORMATION, supra note 32, at 4–5 R
(explaining the importance of the public sphere to our political order); HABERMAS,
BETWEEN FACTS AND NORMS, supra note 2, at 287–95 (describing deliberative politics as a R
argues that “all political power derives from the communicative

power of citizens,” and that public discourse is the source of popu-
lar sovereignty.35 Habermas’ procedural model of popular sover-
eignty can thus be contrasted with pluralism, which articulates a
mechanism for the aggregation of interests and preferences
through voting and elections, and participatory or civic republican
conceptions of democracy, which seek to advance direct participa-
tion in the political system.36
Habermas’ “procedural” model of popular sovereignty is based
on a “two-track” model of deliberative democracy that encompasses
both (1) the formation of public opinion within the public sphere,
and (2) the processes of democratically institutionalized will-forma-
tion that guide decision making in legislative and other representa-
tive governmental institutions.37 The first “track” refers to
discursive democracy—the autonomous communicative processes
of public opinion-formation within the public sphere of civil soci-
ety.38 The second track refers to the democratic processes of will-
formation that take place within parliamentary and other legisla-
tive bodies related to “the cooperative solution of practical ques-
tions, including the negotiation of fair compromises.”39 For
Habermas, these decision-making “publics” are “structured
predominantly as a context of justification.”40
In contrast to the regulated domain of democratic processes in
this second track, Habermas argues that the communicative
processes of opinion-formation in the public sphere must necessa-
rily be unregulated and autonomous of both the state and the mar-
ket.41 Habermas argues that “weak publics” are the vehicle for the
formation of “public opinion” in this first track, noting “opinion-
formation uncoupled from decisions is effected in an open and
inclusive network of overlapping, subcultural publics having fluid
temporal, social, and substantive boundaries.”42
procedural concept of democracy); JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE

ACTION, VOLUME 1: REASON AND THE RATIONALIZATION OF SOCIETY (1981).
35. HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 170; Jeffrey Flynn, Commu- R
nicative Power in Habermas’s Theory of Democracy, 3 EUR. J. POL. THEORY 433, 434 (2004).
36. See Flynn, supra note 35, at 437; see also HABERMAS, Three Normative Models, supra R
note 24, at 239–46. R
37. See Flynn, supra note 35, at 437–43. R
38. See HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 298–301. R
39. Id. at 304–08.
40. Id. at 307.
41. Id.
42. Id.
In contrast to the pluralist model that is based on aggregation of

interests and preferences, and the participatory model based on
representation through self-rule, Habermas’ model of discursive
democracy focuses on the use of public reason in the actual
processes of public debate and discourse.43 Public discourse refers
to an ongoing process that must be autonomous, free and open,
occur within a culture of political equality, and governed by princi-
ples of rationality (public reason).44 The deliberative processes of
public discourse must be undistorted and unregulated in order to
be legitimate.45 For Habermas, the source of popular sovereignty
is not “the people” acting collectively and directly through self-rule,
but rather “is found in those subjectless forms of communication
that regulate the flow of discursive opinion and will-formation in
such a way that their fallible outcomes have the presumption of
practical reason on their side.”46
Significantly, Habermas’ theory of discursive democracy focuses
on two distinct but interrelated forms of deliberative politics: the
realm of informal public discourse in civil society, and the realm of
institutionalized deliberative processes.47 Habermas articulates
processes by which opinion-formation in public discourse in “weak
publics” translates to the process of will-formation in democratic
legislative processes of government.48 Crucially, this model rests
on a delineation of the spheres of civil society serving as the social
basis of “autonomous public spheres.”49 Civil society, for
Habermas, must be distinct from both the economic system and
administrative power.50
2. Civic Republicanism
A variant of deliberative democracy is the theory of civic republi-
canism.51 Theories of civic republicanism build on aspects of delib-
43. Id. at 308–10.
44. See Flynn, supra note 35, at 438; see also HABERMAS, BETWEEN FACTS AND NORMS, R
supra note 2, at 298–301. R
45. HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 298–301. Cf. ROBERT C. R
POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM (2012) (arguing that a primary goal
of the First Amendment is democratic legitimation).
46. HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 486. R
47. Id. at 307–08.
48. See id. at 308.
49. See id. at 299, 358.
50. See id. at 368, 370–74.
51. See Frank Michelman, Law’s Republic, 97 YALE L.J. 1493, 1494–95 (1988) (advanc-
ing a diaological approach to republican theory); see also Cass Sunstein, Beyond the Republi-
can Revival, 97 YALE. L.J. 1539, 1541 (1988) [hereinafter Sunstein, Beyond the Republican
Revival] (analyzing the key components of civic republican theory).
erative and participatory democracy traditions.52 Civic

republicanism eschews the interest group politics of pluralism, and
instead embraces deliberation as an ideal mechanism for translat-
ing the preferences of the public into policy-making.53 In contrast
to Habermas’ proceduralist model, civic republicanism embraces
the concept of “civic virtue” as a collectively understood and
accepted conception of the public good that guides the polity in its
deliberative processes.54 Thus, civic republicanism does not view
deliberation as instrumental, but instead as a mechanism for incul-
cating virtue and an ethos of community into citizens.55 In con-
trast to pluralist models, which emphasize the status of citizenship
in terms of the “negative liberties” that citizens hold as private per-
sons, civic republicanism views citizenship as the exercise of “posi-
tive liberty.”56
C. Participatory Democracy
A third conception of democracy is participatory democracy,
which emphasizes direct and equal participation by individuals in
the political process.57 Rousseau envisioned a political system in
which citizens would participate directly in political decision-mak-
ing processes as equal and independent individuals who are also
interdependent on each other and equally dependent on all the
others who are collectively viewed as sovereign.58 The core princi-
ple of Rousseau’s theory of participatory democracy—the general
will—is centered on the idea that men should be governed by laws,
and not by men.59 The general will requires political equality of all
individuals participating in the decision-making process such that
52. See HANNAH ARENDT, THE HUMAN CONDITION (1958); see also ARISTOTLE, POLITICS
(Ernest Barker ed. & trans., Oxford Univ. Press 1972).
53. See Sunstein, Beyond the Republican Revival, supra note 51, at 1541 (arguing that R
most conceptions of civic republicanism consists of four key attributes: deliberation, politi-
cal equality, universalism and citizenship).
54. See id. at 1541, 1550–51; see Michelman, supra note 51, at 1503–04; see also R
HABERMAS, Three Normative Models, supra note 24, at 239–42, 245 (comparing the liberal and R
civic republican models of democracy to the proceduralist model of deliberative
democracy).
55. Sunstein, Beyond the Republican Revival, supra note 51, at 1556; see Michelman, supra R
note 51, at 1503 (arguing that “political engagement is considered a positive human good R
because the self is understood as partially constituted by, or as coming to itself through,
such engagement.”).
56. See Michelman, supra note 51, at 1503–04. R
57. This Section draws heavily from PATEMAN, supra note 2 (analyzing the history of R
participatory democracy theory).
58. See id. at 24.
59. See id. at 24–25.
they can only vote for policies acceptable to all individuals voting,
and requires a process in which the benefits and burdens of
enacted policies are shared equally.60
Modern participatory theorists, including Carole Pateman and
Jane Mansbridge, revived interest in the value of participation in
democratic systems. Drawing on earlier insights from classical the-
orists, Pateman critiqued representative democracy institutions as
insufficient to provide for full democracy.61 Instead, Pateman sug-
gested the need for a model of democracy based on equal partici-
pation in the actual making of decisions, and political equality.62
Moreover, Pateman’s ideal form of democracy would provide for
participatory democracy in all aspects of the polity and in society,
including industry and the workplace.63
II. CRITIQUING LIBERAL DEMOCRACY: DELIBERATIVE DEMOCRACY

AND THE PUBLIC SPHERE
As illustrated in the foregoing Section, one of the core elements

of deliberative democracy is the promotion of autonomous public
discourse in the public sphere. However, there are several key fac-
ets of deliberative democracy that present a key challenge to the
goal of promoting and enhancing participation.64 Among the
major problems with contemporary liberal democracy’s concep-
tion of the public sphere are the problematic nature of autonomy,
the lack of access, and the lack of governmental accountability .65
A. Autonomy and the Public Sphere

One of the main problems with deliberative democracy theory
lies in its conception of autonomy. In deliberative democracy, pub-
lic discourse within an autonomous public sphere plays an impor-
tant role in producing public opinion. For deliberative democrats,
autonomy is crucial because it allows for unfettered rational dis-
course in the public sphere to generate public opinion that can
60. Id. at 24 (citing JEAN JACQUES-ROUSSEAU, THE SOCIAL CONTRACT, bk. II, ch. 3 (Pen-
guin Classics ed. 1968). A corollary of Rousseau’s ideal general will model is that organ-
ized groups should not be present in the decision-making process because it would allow
for the triumph of particular wills over the general will.
61. PATEMAN, supra note 2, at 42. R
62. Id. at 43.
63. Id. at 43, 45–84, 102–11.
64. See Fraser, supra note 3, at 60–67, 72–77. R
65. See id. Owen Fiss arguably anticipated some of Fraser’s critiques of the public
sphere in his scholarship. See Fiss, supra note 22, at 1412–13. R
guide decision making by legislative bodies and the administrative/

executive branches of government.66
Habermas argues that the autonomy of the public sphere is a
pre-requisite to the proper functioning of his proceduralist model
of popular sovereignty.67 His “discourse theory” model rests on a
respect for the “boundaries between ‘state’ and ‘society’ but it dis-
tinguishes civil society, as the social basis of autonomous public
spheres, from both the economic system and public administra-
tion.”68 According to Habermas, popular sovereignty “flows” from
the process of autonomous public opinion formation within the
public sphere to the deliberative bodies that make decisions in the
polity.69 In order to be legitimate, the process of opinion forma-
tion within the public sphere must be based on rational discourse,
equality, and universality.70
Within the civic republican model, public discourse is more lim-
ited than in Habermas’ procedural model, and is structured
around rational discussion aimed at achieving “the common
good.” Through reasoned discussion in the public sphere, the
people in the civic republican model seek “to promote a common
good that transcends the mere sum of individual preferences,” and
in this process “participants are transformed from a collection of
self-seeking private individuals into a public-spirited collectivity,
capable of acting together in the common interest.”71
Habermas argues that where the economic system and the state
intrude upon and invade civil society, this can threaten the auton-
omy of the public sphere.72 As Habermas argues in The Transforma-
tion of the Public Sphere, the shift from the enlightenment period to
the era of state-led welfare capitalism brought about a fundamental
transformation in the nature of public discourse in the public
sphere, from one of enlightened, rational discourse to an era in
which public discourse was by the influence of corporations, mass
media, and the actual institutions of the state itself.73 Habermas’
deliberative democracy model is thus based on a conception of
66. See HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 298–300; see also POST, R
CITIZENS DIVIDED, supra note 1, at 36–37, 48–49, 53–54. R
67. See HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 298–99. R
68. Id. at 299.
69. Id.
70. See id. at 300–01.
71. Fraser, supra note 3, at 72. R
72. HABERMAS, THE STRUCTURAL TRANSFORMATION, supra note 32, at 131–32, 161, R
175–79.
73. Id. at 161–63, 175–79.
autonomy that envisions some degree of independence and separa-

tion of the public sphere from both the economic system and the
state.74
I argue that the major problem with this conception of auton-
omy in deliberative democracy is the insistence on autonomy from
the state. In embracing this conception of autonomy, the state and
its institutions are effectively constrained from playing a meaning-
ful role in facilitating, and enhancing participation in the public
sphere by directly addressing structural problems that may be
weakening or distorting participation.75 Autonomy in the public
sphere requires both freedom from material domination, as well as
other forms of political oppression and coercion. In order to be
able to effectively participate in public discourse in the public
sphere, and in politics generally, individuals must have both the
financial resources that free them from the state of necessity,76 as
well as the ability to be free from domination, oppression, and
coercion that limits individual agency and choice.77 As Fraser
argues, two major problems with the nature of the public sphere in
both civic republican and deliberative democracy models are: (1)
the problem of dominance and subordination by elites; and (2)
the “bracketing” of the actual conditions of social inequality that
may limit and constrain effective participation in the polity.78
1. Domination and Justice: The Problem of “Voice” in

Deliberation
Habermas suggests that the concept of autonomy is related to
the idea of domination and justice.79 Habermas draws on the work
of Iris Marion Young, who observed that “[d]omination consists in
institutional conditions which inhibit or prevent people from par-
ticipation in determining their actions or the conditions of their
74. Id. at 169–72.
75. See Fraser, supra note 3, at 73–75. R
76. See HANNAH ARENDT, THE HUMAN CONDITION 5 (1958). As Fraser argues, social
and economic equality is a pre-requisite to true social democracy, and as such, govern-
ments should address structural inequalities as a preliminary matter. Fraser, supra note 3, R
at 74. However, for purposes of this Article, I focus here on how the proposed par-
ticipatory model could complement efforts at ameliorating social and economic inequality
by also focusing on remedying social and political oppression and other forms of domi-
nance and subordination that may inhibit meaningful participation in the political
process.
77. See JOSEPH RAZ, THE MORALITY OF FREEDOM 369–73 (1986) (suggesting that auton-
omy is directly linked to individuals’ ability to meaningfully choose between available
options).
78. See Fraser, supra note 3, at 63. R
79. HABERMAS, BETWEEN FACTS AND NORMS, supra note 2, at 420–21. R
actions.”80 The concept of justice, within social welfare states, must

extend beyond distributive justice to also refer to guaranteeing the
institutional conditions that allow for “development and exercise
of individual capacities and collective communication and cooper-
ation.”81 Thus, for Habermas, oppression and subordination
through legal and political discrimination on the basis of gender
and other identities threatens autonomy of the public sphere by
denying oppressed groups the conditions and resources they need
to effectively exercise autonomy and effective participation.82
The concept of domination, however, can extend far beyond
legally sanctioned discrimination and exclusion. Citing to studies
of feminist movements, Nancy Fraser argues that that deliberation
in the public sphere has often served as a mask for domination,
and that deliberation processes aimed at consensus can themselves
constitute a form of oppression and constrain voices through sub-
tle forms of control and coercion83 Citing to Jane Mansbridge’s
work, Fraser observes that deliberation processes aimed at consen-
sus can themselves constitute a form of oppression and constrain
voices through subtle forms of control and coercion.84 Within the
bourgeois public sphere, language can serve as a restriction on
expression, and “[s]ubordinate groups sometimes cannot find the
right voice or words to express their thoughts, and when they do,
they discover they are not heard.”85 In addition, Fraser observes
that within the context of stratified societies, the particular aspects
of a dominant culture can also affect oppression, as subordinated
groups often “develop unequally valued cultural styles.”86 As a
result, cultural factors can give rise to “powerful informal pressures
that marginalize the contributions of members of subordinated
groups—both in everyday life contexts and in official public
spheres.”87
80. Id. at 420.

81. Id. at 419.
82. Id. at 420.
84. Id.
85. Id.
86. Id. at 64, 67. It should be noted here that Fraser relies on Gayatri Spivak’s concep-
tualization of the “subaltern” in examining how the public sphere in liberal democracy
excludes subordinated social groups, and leads these groups to seek and create alternative
spaces of discourse. See Gayatri Spivak, Can the Subaltern Speak, in MARXISM AND THE INTER-
PRETATION OF CULTURE 271–13 (Cary Nelson & Larry Grossberg eds., 1988); see also RITA
FELSKI, BEYOND FEMINIST AESTHETICS (1989).
2. The Bracketing of Inequality

For Fraser, the problem of the autonomy of the political can also
be traced back to what she calls the “bracketing” of social and eco-
nomic inequality in liberal democracy theories of the public
sphere.88 Fraser challenges Habermas’ idealization of the liberal
public sphere,89 and in stressing the importance of the economic
and class bases of oppression and domination, suggests the bour-
geois public sphere has historically facilitated forms of oppres-
sion.90 Fraser argues that the public sphere has “functioned to
legitimate an emergent form of class rule.”91 She cites to the work
of Geoff Eley, who argues that the bourgeois public sphere served
as the vehicle for effecting a “historical transformation in the
nature of political domination” from “a repressive mode of domi-
nation to a hegemonic one, from rule based primarily on acquies-
cence to superior force to rule based primarily on consent
supplemented with some measure of repression.”92 In particular,
culture can interact with the market forces of political economy to
create significant levels of distortion in public discourse.93
The autonomy of the public sphere can be threatened not only
by cultural dominance, but also by the power of corporate con-
trolled media that have the power to frame, shape, and control
public discourse. Fraser notes that “the media that constitute the
material support for the circulation of views are privately owned
and operated for profit,” and as a result, “subordinated social
groups usually lack equal access to the material means of equal
participation.”94 This line of critique is consistent with the work of
scholars including Adorno and Habermas, who have argued that in
late capitalist systems, public discourse has been transformed by
the expansion of mass capitalism and consumerism.95
Additionally, elite media framing of news coverage, and of politi-
cal discourse generally, has a powerful elite skew, which effects a
form of domination and exclusion, as issues of importance to sub-
88. Id. at 63–65.

89. See id. at 59.
90. Id. at 59–61.
91. Id. at 62.
92. Id. (citing Geoffrey Eley, Nations, Publics and Cultures: Placing Habermas in the Nine-
teenth Century (Univ. of Mich., CSST Working Paper #42, 1990)).
93. Id. at 64.
94. Id. at 64–65 n.18 (also noting Habermas’ work addressing the “concentration of
media ownership in late capitalist societies.”).
95. See THEODOR W. ADORNO, THE CULTURE INDUSTRY 9, 12, 21 (1991); see also
HABERMAS, THE STRUCTURAL TRANSFORMATION, supra note 32, at 162–63, 172–73. R
altern groups are excluded from media framing.96 This directly

translates to the ignorance of issues of pressing national concern
and urgency in policy-making and governance, as reflected in
India’s failure to meaningfully address systemic poverty and malnu-
trition.97 The key problem, then, is that the public sphere in late
capitalist democracies is not autonomous of other private and social
institutions.
Within India, both social and economic inequality and other
forms of oppression and subordination are pervasive and under-
mine autonomy and active participation in public discourse.98
Structural problems like poverty, malnutrition, poor health, and
illiteracy already create significant obstacles to active individual
participation in the political process.99 In addition, at the village,
state, and national level, both oppression and criminality in gov-
ernance and elections at all levels present obstacles to the realiza-
tion of meaningful autonomy in the public sphere.100
As illustrated in Part III, India’s positive rights model is based on
a fundamentally distinct understanding of the relationship
between the state and society, and autonomy. In this model, the
state must play some role in not only ameliorating social and eco-
nomic inequality in the private sphere, but also in addressing
problems of distortion and subordination by dominant groups.
The primary problem with the liberal democratic conception of
the public sphere is its resistance to the idea of state intervention
in public discourse. However, this Article suggests that a par-
ticipatory model that empowers independent state institutions to
address these forms of domination, oppression, and subordination
is crucial to ensuring effective participation in democracy.
96. See ADORNO, supra note 95; see also HABERMAS, THE STRUCTURAL TRANSFORMATION, R
supra note 32, at 162–63, 172–73. R
97. See DRÈZE & SEN, supra note 14, at 355. See generally AKHIL GUPTA, RED TAPE: R
BUREAUCRACY, STRUCTURAL VIOLENCE, AND POVERTY IN INDIA (2012). See infra Part V (dis-
cussing the elite skew and distortion of media and political discourse in India, and failure
of media elites to discuss poverty as a crisis).
98. See id.; see also infra discussion in II.B. See generally Patrick Heller, Democracy, Par-
ticipatory Politics and Development: Some Comparative Lessons from Brazil, India and South Africa,
44 POLITY 643 (2012) (discussing the relationship between, civil society, state institutions,
and the concept of effective citizenship and associational autonomy).
99. DRÈZE & SEN, supra note 14, at 266. R
100. See Patrick Heller, Toward a Sociological Perspective on Democratization in the Global
South: Lessons from Brazil, India, and South Africa 10, 12 (Comparative Research Workshop,
Yale Univ., Feb. 8, 2011).
B. Inclusiveness and Access in the Public Sphere

A second major critique of liberal theory’s conception of dis-
course in the public sphere is that the public sphere excludes dif-
ferent “publics” and groups. According to Fraser, Habermas’
conception of the public sphere fails to account for and acknowl-
edge the possibility of the existence of multiple alternate and
“competing publics” which may, in fact, advance participation and
democracy.101 Fraser then considers the merits of a single compre-
hensive, or overarching, public versus multiple publics in two dif-
ferent ideal-types of societies—stratified societies and egalitarian
multi-cultural societies.
By stratified societies, Fraser refers to “societies whose basic insti-
tutional framework generates unequal social groups in structural
relations of dominance and subordination.”102 In contrast, egalita-
rian, multi-cultural societies refer to those “whose basic framework
does not generate unequal social groups in structural relations of
dominance and subordination.”103 Fraser suggests that the exis-
tence of one overarching, comprehensive public sphere in both
types of societies is problematic.104 India arguably lies closer to the
conception of a stratified society based on a history of discrimina-
tion on the basis of caste, class, religion, gender, and other catego-
ries in addition to the urban-rural divide.105 However, India’s
constitutional and political framework is directly aimed at amelio-
rating disparities and inequality along these lines, and embracing
secularism and pluralism.
In stratified societies, Fraser argues that “contestation among a
plurality of competing publics better promote the ideal of par-
ticipatory parity than does a single, comprehensive, overarching
public sphere.”106 In addition, she suggests that alternative publics
including “subaltern counterpublics” can allow for spaces for sub-
ordinated social groups to “invent and circulate counterdiscourses,
which in turn permit them to formulate oppositional interpreta-
tions of their identities, interests, and needs.”107 Fraser thus argues

102. Id.
103. Id. at 68.
104. Id. at 68–69.
105. See id.
106. Id. at 66.
107. Id. at 66–67. It should be noted that Fraser derives this term from Gayari Spivak’s
term the “subaltern,” and Rita Felski’s use of the term “counterpublic.” See Gayatri Spivak,
Can the Subaltern Speak, in MARXISM AND THE INTERPRETATION OF CULTURE 271–313 (Cary
Nelson & Larry Grossberg, eds., 1988); see also FELSKI, supra note 86, at 154–55, 164. R
for a more pluralistic understanding of alternate publics in which

participation takes place. She concludes that a multiplicity of pub-
lics is superior to one overarching public given that public spheres
are not a space of “zero degree culture.”108 Rather, public spheres
are “culturally specific institutions” that may be understood as “cul-
turally specific rhetorical lenses that filter and alter the utterances
they frame; they can accommodate some expressive modes and not
others.”109
The positive rights participatory model would help address the
problem of exclusivity by promoting mobilization of social move-
ments. As Joshua Cohen has observed, one of the key problems
with Habermas’ conception of the public sphere in deliberative
democracy is that its strict requirement of autonomy places great
restrictions on the processes by which social movement mobiliza-
tion can take place.110 Habermas’ deliberative democracy model
posits that “initiative and subsequent organized influence on legis-
lative and administrative power” must “come from outside institu-
tionalized, routinized power.”111 Thus, it is only when such
initiative and organized influence break free from the “unofficial
circulation of this unlegitimated power,” that power flows properly
from the rational discourse of equal citizens in the public sphere to
the realm of decision making and administration.112 However, as
Cohen argues, this expectation is unrealistic, given that many polit-
ical and social movements have been the product of activity within
political institutions and by political actors and that political elites
often help to mobilize support.113
C. Accountability
The positive rights participatory model would also address the
third shortcoming of deliberative democracy theory—the lack of
accountability between deliberative and decision-making bodies,
and the public sphere. The relationship between the state, the
public sphere, and civil society is crucial for understanding the
108. Fraser, supra note 3, at 66–67.
109. Id. at 59. Fraser here suggests a broader conception of public spheres in observ-
ing that these spheres may consist of “various journals and various social geographies of
urban space.” This suggests that various forms of news media, publications, as well as the
spatial design of communities each can play a role in controlling and shaping public dis-
course in the public sphere.
110. See generally Joshua Cohen, Reflections on Habermas on Democracy, 12 RATIO JURIS 385
(1999).
111. Id. at 409.
112. Id.
113. Id.
problem of accountability in liberal democracy.114 Underlying the

bourgeois conception of the public sphere is the idea of a strong
separation between civil society and the state.115 The public sphere
refers to the “informally mobilized body of nongovernmental dis-
cursive opinion that can serve as a counterweight to the state,” and
the “extragovernmental character of the public sphere that confers
an aura of independence, autonomy, and legitimacy on the ‘public
opinion’ generated in it.”116
In critiquing Habermas’ conception of the public sphere, Fraser
distinguishes between “strong publics” and “weak publics.” Strong
publics refer to democratic decision-making bodies—“publics
whose discourse encompasses both opinion-formation and deci-
sion-making”— while “weak publics” refer to “publics whose delib-
erative practice consists exclusively in opinion-formation and does
not also encompass decision-making.”117 The problem with the
strict separation between strong and weak publics in deliberative
democracy theory is that it does not allow for hybridization of the
opinion-making and decision-making functions of strong and weak
publics.118
Fraser notes that the bourgeois conception of the public sphere
does not allow for weak publics to engage in both opinion-making
and decision making, as “this would threaten the autonomy of pub-
lic opinion—for then the public would effectively become the
state, and the possibility of a critical discursive check on the state
would be lost.”119 In addition, Fraser notes that the emergence of
parliamentary sovereignty complicates our understanding of the
division between the state, public sphere, and civil society, as parlia-
mentary bodies are strong publics “whose discourse encompasses
both opinion-formation and decision-making.”120 Fraser concludes
by suggesting that “any conception of the public sphere that
requires a sharp separation between (associational) civil society
and the state will be unable to imagine the forms of self-manage-
ment, inter-public coordination, and political accountability that
are essential to a democratic and egalitarian society.”121
114. See generally HABERMAS THE STRUCTURAL TRANSFORMATION, supra note 32 (discuss- R
ing the relationship between the state, market, civil society, and the public sphere).
115. Id.
116. Fraser, supra note 3, at 75 (emphasis added). R
117. Id. at 75–76.
118. Id. at 76.
119. Id. at 75.
120. Id. at 76.
121. Id.
III. THE RIGHT TO INFORMATION IN ELECTION LAW IN INDIA

A. The Constitutional and Regulatory Framework
India’s statutory framework governing election law is set forth in
the Representation of the People Act of 1951 (RPA).122 The RPA
specifically sets forth and regulates individual level offenses of can-
didates, including electoral offenses and corrupt practices.123
Additionally, the Indian Penal Code of 1960 also contains prohibi-
tions on election-related offenses.124 The Election Commission of
India is the main agency charged with regulating and overseeing
Indian elections.125 The Supreme Court of India and High Courts
have also played a crucial role in defining the parameters and con-
tours of Indian constitutional law governing elections, including
the doctrines of freedom of speech and expression in elections,
and the right to information. Finally, other institutions including
the Law Commission of India, and the Central Information Com-
mission play a critical role in the regulation of elections.
India’s election law speech framework is unique in that it allows
the state to restrict the speech and conduct of candidates and par-
ties in ways that other liberal democracies do not. Article 19 of the
Indian Constitution contains the core protections for freedom of
speech and protection in India.126 Unlike the United States, the
Indian Supreme Court has held that Article 19(1)’s free speech
protections only apply to citizens and natural persons, and that cor-
porations do not have free speech rights protected by Article
19(1).127 In addition, the Indian Supreme Court has interpreted
122. Representation of the People Act, No. 43 of 1951, INDIA CODE.

123. Ujjwal Kumar Singh, Between Moral Force and Supplementary Legality: A Model Code of
Conduct and the Election Commission of India, 11 ELECTION L.J. 149, 150 n.3 (2012) (noting
that offenses under RPA include bribery, undue influence, promoting enmity (Section
123)).
124. Id. Article 19 (1)(a) of the Indian Constitution provides that all citizens shall have
the right to freedom of speech and expression. Article 19(2) provides, “Nothing in sub-
clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of [the sovereignty and integ-
rity of India,] the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence.” INDIA CONST. art. 19(a)(2), amended by The Constitution (First Amendment) Act,
1951.
125. See LLOYD RUDOLPH & SUZANNE RUDOLPH, IN PURSUIT OF LAKSHMI: THE POLITICAL
ECONOMY OF THE INDIAN STATE (1987); see also Alistair McMillan, The Election Commission of
India and the Regulation and Administration of Electoral Politics, 11 ELEC. L.J. 187 (2012).
126. INDIA CONST. art. 19.
127. LAW COMM’N OF INDIA, REPORT NO. 255: ELECTORAL REFORMS 39 (Mar. 2015),
http://lawcommissionofindia.nic.in/reports/Report255.pdf (citing State Trading Corp. v.
Article 19 of the Indian Constitution as not providing absolute pro-

tections for candidate and party speech and conduct, in part
because Article 19(2) contains a “saving clause” provision that
allows for reasonable restrictions on speech that advance decency
and morality.128
Since the early 1990s, reform efforts led by civil society, NGOs,
and government institutions within India have sought to address
the increasing criminalization of Indian politics and elections.
Much of the reform efforts were aimed at altering the Representa-
tion of the People Act of 1951, the national legislative framework
governing Indian elections. The Right to Information Act estab-
lished the Central Information Commission, a new agency charged
with enforcing the right to information.129
Civil society groups such as the Mazdoor Kisan Shakti Sangathan
(MKSS) in Rajasthan, the Association for Democratic Reforms
(ADR) and the People’s Union for Civil Liberties (PUCL) played a
crucial role in helping advance the right to information through
social movements and through litigation in the High Courts and
Supreme Court of India.130 In 1993, the Vohra Committee
released a report documenting the criminalization of India’s politi-
cal system, and highlighting the nexus between criminal networks
of criminals, bureaucrats, and politicians. The release of this
report helped galvanize a national “Right to Information” cam-
paign seeking new disclosure reforms. The Election Commission,
Law Commission, and Supreme Court of India have each played
key roles in advancing electoral reform, including disclosure, nega-
tive voting (“none of the above or NOTA”), and transparency in
campaign finance.131 From the early 1970s through the early
1990s, various Chief Election Commissioners presented proposals
CTO, A.I.R. 1963 S.C. 1811 (India); Barium Chemicals v. Co. Law Bd., A.I.R. 1967 S.C. 295
(India)).
128. See Mukhariya v. Ram, (1955) S.C.R. 608 (India) (holding that candidate speech
in elections is based in statutory, not constitutional rights, and therefore is not absolutely
protected under Article 19 of the Indian Constitution).
129. Ministry of Law and Justice (Right to Information Act) No. 22, 2005, The Gazetter
of India Extraordinary, sec. I (2) (June 15, 2005), http://www.righttoinformation.gov.in/
rti-act.pdf.
130. See Rob Jenkins & Anne Marie Goetz, Accounts and Accountability: Theoretical Impli-
cations of the Right-to-Information Movement in India, 20 THIRD WORLD Q. 603 (1999) (analyz-
ing the development and impact of the MKSS farmers’ movement on India’s political
system); see also Trilochan Sastry, Toward Decriminalization of Elections and Politics, 49 ECON. &
POL. WKLY 34 (2014).
131. CORE-COMMITTEE ON ELECTION REFORMS, MINISTRY OF LAW & JUSTICE, GOVERN-
MENT OF INDIA, BACKGROUND PAPER ON ELECTORAL REFORMS (Dec. 2010).
for election and political reforms that were aimed at eliminating

criminalization in Indian politics.132
B. The Right to Information Decisions

In 1997, the Supreme Court and the Election Commission of
India, in response to the Vohra Committee report, called for new
efforts to take on the problems of corruption and criminalization
of Indian politics. That year, the Supreme Court of India in the
Dinesh Trivedi case recommended that corruption and criminaliza-
tion required the creation of a new body that could monitor, inves-
tigate, and prosecute corruption, and that in the interim, a high
level committee should be appointed to further investigate the
findings of the Vohra Report.133 The Commission also asserted an
expanded role in taking on criminalization and corruption.134
In August 1997, Chief Election Commissioner G.V.G.
Krishnamurthy argued for new legislation and administrative mea-
sures aimed at criminalization and corruption, observing that in
the 1996 national elections, the Commission “seized illegal arms
which included 2,000 guns, 11,000 cartridges, 175 explosives and
57,000 bombs; of the 13,952 candidates who contested, nearly
1,500 had criminal records; and almost 700 members of state legis-
lative assemblies (MLAs) out of 4,722 in the country were involved
in criminal cases and trial was pending against them.”135 Accord-
ing to the Election Commission, forty out of the 545 members of
Parliament, and 700 of the 4,072 members of legislative assemblies
had a criminal background.136
National concerns about corruption and criminalization also led
to the calling of a special session of Parliament in August 1997, in
which leaders unanimously resolved to push for electoral
reforms.137 The Government ordered the Law Commission to
132. K. Subramanian, Towards Free and Fair Elections in India, HINDU (July 2, 2008),
http://www.thehindu.com/todays-paper/tp-opinion/towards-free-and-fair-elections-in-
india/article1288143.ece (last visited Aug. 24, 2014).
133. Trivedi v. Union of India (1997) 4 SCC 306 (India).
134. EC Focus on Crime-Politics Ties, INDIAN EXP. (Aug. 21, 1997), http://
archive.indianexpress.com/Storyold/10279/.
135. Subramanian, supra note 132. R
136. The Unholy Nexus, INDIAN EXP. (Aug. 22, 1997), http://archive.indianexpress.com/
Storyold/10370/. The Election Commission also issued an order in August 1997 that clari-
fied the scope of Section 8 of the Representation of People Act of 1951 as requiring that
disqualification of candidates under this Section would begin from the date of conviction.
See generally V. Venkatesan, Crime and Politics, FRONTLINE, Vol. 18, Issue 26, Dec. 22,
2001–Jan. 04, 2002.
137. Subramanian, supra note 132. R
review the Representation of the People Act to “make the electoral

process more fair, transparent, and equitable and to reduce the
distortions and evils that have crept into the Indian electoral sys-
tem” and to recommend reform measures.138
In July 1998, the Election Commission suggested that persons
chargesheeted for offences punishable with imprisonment for five
or more years be disqualified from contesting elections to Parlia-
ment and the State legislatures.139 In May of 1999, the Law Com-
mission submitted its 170th report recommending electoral
reforms to the Law Ministry.140 The Law Commission recom-
mended that candidates convicted of certain criminal offences be
barred from contesting seats in the Lok Sabha, the lower house of
the Indian Parliament. In addition, the report also recommended
that all candidates for the Lok Sabha be required to disclose prior
criminal records, as well as a statement of the financial assets
owned by the candidate and the candidates’ family.141 However,
the Government failed to take any action in implementing the Law
Commission report recommendations because of a lack of consen-
sus and support among political parties in Parliament.142
1. Association for Democratic Reforms v. Union of India (2001)

In 1999, the Association for Democratic Reforms filed a Public
Interest Litigation claim (PIL) in the Delhi High Court, seeking a
direction to implement the recommendations of the Law Commis-
sion’s 170th report, and a writ directing the Election Commission
to gather information regarding the criminality of all candidates in
an election and to provide such information to the public and to
the media.143 The Law Commission report recommended the
insertion of a new Section 4-A into the RPA that modified the qual-
ifications for membership in Parliament and state legislative assem-
blies or council, requiring that all candidates shall not be qualified
to file nomination papers or contest elections unless they filed dec-
larations of all financial assets, as well as all criminal charges
138. See Ass’n for Democratic Reforms v. Union of India, 2001 AIR 126 (Del.) 128–32
(India), citing to 170TH REPORT OF THE LAW COMMISSION OF INDIA: REFORM OF THE ELECTO-
RAL LAWS, http://www.lawcommissionofindia.nic.in/lc170.htm (last visited Nov. 22, 2015).
139. Id. at 131.
140. Id. at 131–32.
141. Id. at 128–29.
142. Id. at 126, 130.
143. Id. at 128–29. Notably, the High Court also provided an in-depth review of the
history of government commissions, reports, books, and articles that documented the rise
of criminalization in Indian politics.
related to any offence referred to in Section 8B of the RPA.144 The

report further recommended that forms 2A to 2E under the Con-
duct of Election Rules, 1961 be modified in line with the above
changes.
In response to the petition, the ECI filed an affidavit expressing
its agreement that amendments should be made to the electoral
laws and that the ECI had previously endorsed and recommended
modifying Section 8 of the RPA to allow for the disqualification of
candidates and for new disclosure requirements regarding candi-
dates’ assets and criminal records.145 The ECI also submitted that
it had previously issued an order in August 1997 requiring the fil-
ing of candidate affidavits about convictions covered under Section
8 of the RPA.146
In its decision, the Delhi High Court held that citizens had a
fundamental right to receive information regarding the criminal
activities and financial assets of candidates prior to casting their
vote, and directed the Election Commission to issue directives
requiring that candidates for the Lok Sabha and State Legislative
Assembly be required to disclose any prior criminal record and a
record of financial assets.147 Significantly, the Delhi High Court
cited and referenced reports of the Election Commission of India
and the Law Commission documenting the criminalization of
Indian politics and the high number of Members of Parliament
and cabinet ministers with criminal records.148 In addition, the
Delhi High Court also referenced two additional sources docu-
menting the extraordinary level of criminality and corruption: the
Vohra Committee Report of 1995 and S.S. Gill’s The Pathology of
Corruption.149 These reports documented the nexus between poli-
ticians and criminal syndicates business and other groups at all
levels of government, and on the use of violence to win elec-
144. Id. at 128.

145. See id. at 129.
146. Id. The ECI also noted that in a letter from the CEC to the Prime Minister in
September 1997, it recommended that Section 8 of the RPA be amended because of major
inconsistencies in that provision that allowed for convicted criminals to be disqualified for
a certain period of time and then contest elections after that period even while serving the
final years of a prison sentence. The ECI proposed that Section 8 be amended to provide
that disqualifications of candidates sentenced to prison for six months or more should be
barred from contesting elections for the period of the sentence plus an additional six
years.
147. Id. at 135–38.
148. Id. at 133–34.
149. Id. at 134. India, Report of the Vohra Committee.
tions.150 Gill, a state legislator, stated that “[u]nless you have hun-
dred men with guns you cannot contest elections in Bihar,” and
another minister admitted, “I am honest enough to declare that I
keep goondas. For, without them, it is virtually impossible to win
elections.”151
In expanding the right to information, the Court drew on its
earlier free speech decisions interpreting Article 19(1)(a), which
provides that citizens have a right to freedom of speech and expres-
sion. These decisions recognized that Article 19(1)(a) also encom-
passed a citizen’s right to receive information and right to know.152
In Indian Express Newspapers v. Union of India (1985), the Court held
that Article 19(1)(a) must be broadly interpreted to include the
right to circulate view through speech, writing, and audio and vis-
ual media, including the print media, radio, and television.153 The
Delhi High Court concluded that the right to freedom of speech
and expression encompasses several inter-related rights, including
the right to voice one’s opinion, the right to seek information and
ideas, the right to receive information, and the right to impart
information.154
In the Airwaves case, the Supreme Court held that the freedom
of speech and expression included the right to acquire and receive
information and the right to disseminate it. The Court held that
“[f]reedom to speech and expression is necessary, for self-expres-
sion which is an important means of free conscience and self-fulfill-
ment. It enables people to contribute to debates . . . [i]t is the only
vehicle of political discourse so essential to democracy.”155 Signifi-
cantly, the Court also recognized that the right to information also
was based in protections of liberty and equality, in citing to the
Preamble, Article 14 (“the state shall not deny to any person equal-
ity before the law”) and Article 38(2) of the Directive Principles
(“[t]he State, shall, in particular-endeavor to eliminate inequalities
in status, facilities and opportunities, not only amongst individuals
but also amongst groups of people.”)156
150. Id.
151. Id. at 134.
152. See id. at 135 (citing State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428
(India)).
153. Id. at 136 (citing Indian Express Newspapers v. Union of India, (1985) 1 SCC 641
(India)).
154. Id. at 136–37.
155. Id. at 135 (citing Sec’y, Ministry of Info. & Broad. v. Cricket Ass’n of Bengal,
(1995) 2 SCC 161 (India)).
156. Id.
The Airwaves decision concluded that the right to information

was not just grounded in the negative right to free speech and
expression in Article 19(1)(a), but also in the broader structural
protection and obligations and commands of Article 14 and Article
38(2).157 The Supreme Court thus held that “the State is not
merely under an obligation to respect the fundamental rights guar-
anteed by Part III but under an equal obligation to ensure condi-
tions in which those rights can be meaningfully and effectively
enjoyed by one and all.”158 Drawing on this precedent, the Delhi
High Court recognized that directive principles provide support
for a positive rights-based conception of the right to
information.159
Significantly, the High Court in ADR also cited to the Supreme
Court’s decision in the SP Gupta case in suggesting that the push
for openness and transparency in government is based on two
rationales—allowing voters to cast informed votes and also
allowing voters to evaluate ongoing governmental policies as part
of more active engagement with the political process. According to
the Court, expanded disclosure would enable voters to “exercise
sound judgment on the conduct of the government and the merits
of public policies, so that democracy does not remain merely a spo-
radic exercise in voting but becomes a continuous process of gov-
ernment—an attitude and habit of mind.”160
The High Court ordered the Election Commission to require
disclosure of facts “giving insight to candidate’s competence,
capacity and suitability for acting as parliamentarian or legislator
including details of his/her educational qualifications” and infor-
mation which the election commission deemed “necessary for
judging the capacity and capability of the political party fielding
the candidate for election to Parliament or the State Legisla-
ture.”161 The High Court went further in directing that the Elec-
tion Commission issue orders and directives requiring that debates
be held before elections that would be telecast by Doordarshan
(the national state-run television station) in which representatives
from the various parties would present their “election manifestoes,
programmes, plans and background and capabilities of their candi-
157. Id.
158. Id. at 136 (citing Sec’y, Ministry of Info. & Broad. v. Cricket Ass’n of Bengal,
(1995) 2 SCC 161 (India)).
159. Id.
160. Id. at 136 (citing S.P. Gupta v. Union of India, AIR 1982 SC 149 (India)).
161. Id. at 138.
dates, and answer questions posed by the audience relating

thereto.”162
2. Union of India v. Association for Democratic Reforms (2002)

The BJP Government challenged the High Court’s decision on
appeal in the Supreme Court, and the Congress Party also inter-
vened in the action. On appeal, the People’s Union for Civil Liber-
ties joined the action, filing a PIL writ petition in support of
heightened disclosure requirements.163 The Government and
Congress Party argued that the High Court should not have issued
any directions to the Election Commission until Parliament had
enacted amendments to the Representation of People Act of 1951
and Election Commission Rules.164 On appeal, the Supreme Court
of India effectively upheld the Delhi High Court’s decision.165
In affirming the High Court’s decision, the Supreme Court
addressed two key issues. First, the Supreme Court held that the
Election Commission of India did have the power to issue the
directions ordered by the Delhi Court, under Article 324 of the
Constitution.166 Second, the Court elaborated on the right to
know, reiterating many of its earlier rulings that were cited and
discussed by the High Court.167 The Supreme Court went further,
in observing that “democracy cannot survive without free and fair
election, without free and fairly informed voters.”168 The Supreme
Court also cited to international law principles, specifically Articles
19(1) and (2) of the International Covenant for Civil and Political
Rights, which provided that “(1) [e]veryone shall have the right to
hold opinions without interference. (2) [e]veryone shall have the
right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds.”169
Third, the Supreme Court noted that it also had significant
power to fill the “void” left by the legislature and executive pursu-
ant to its jurisdiction under Articles 32, 141, 142, and 324. In justi-
fying its directives to the ECI to promulgate new disclosure
requirements for legislative candidates, Justice Shah cited to the
criminalization of politics referenced in the Vohra Report and
162. Id.
163. Union of India v. Ass’n for Democratic Reforms, (2002) 5 SCC 294, 303 (India).
164. Id. at 306.
165. Id.
166. Id. at 312–14, 319–21.
167. Id. at 316–17.
168. Id. at 317.
169. Id. at 321.
other publications, including the growth and spread of criminal

gangs, drug mafias, and other syndicates that infiltrated the Indian
bureaucracy and government.170
The Court in ADR directed the EC to issue orders requiring that
candidates for Parliament and state legislatures be required to dis-
close the following information as a part of their nomination
papers. First, candidates were required to disclose whether the
candidate was convicted, acquitted, or discharged of any criminal
offence in the past, and whether the candidate was punished with
any type of imprisonment or fine.171 Second, candidates were
required to disclose whether, in the six months preceding the fil-
ing of nomination, the candidate was accused in any pending case,
of any offense punishable with imprisonment of two years or more,
and in which charge is framed or cognizance is taken by the court
of law, and the details thereof.172 Third, candidates were required
to disclose all financial assets and liabilities of the candidate,
spouse, and dependents.173 Fourth, candidates were required to
disclose information regarding their educational qualifications.174
3. PUCL v. Union of India (2003)

Following the Court’s decision in Union of India v. ADR, the Cen-
tral Government enacted the Representation of People (Amend-
ment) Ordinance of 2002, and later, following an initial hearing in
PUCL v. Union of India, Parliament repealed the ordinance and
enacted the Representation of the People (Third Amendment) Act
of 2002.175 While the amended version of the Act did in fact seek
to provide for some disclosure, petitioners PUCL challenged the
validity of Section 33-B of the Amendment Act (which was identical
to Section 33-B of the Ordinance).176 Petitioners argued that Sec-
tion 33-B’s weaker disclosure requirements violated the right to
information.
While Section 33B did include some of the disclosure require-
ments set forth in the Court’s earlier decision in ADR, including
requiring disclosure of information related to past criminal record
and pending criminal cases, Section 33B altered and diminished
the disclosure requirements by stipulating that candidates would
170. Id. at 301–04, 317–18, 320–21.
171. Id. at 322.
172. Id.
173. Id. at 306.
174. Id.
175. People’s Union for Civil Liberties, (2003) 4 SCC 399, 418–20 (India).
176. Id. at 421–24
not be required to disclose information on cases in which they

were acquitted or discharged of criminal offences. It also did not
require disclosure of the candidates’ financial assets, liabilities,177
and educational qualifications.178 In addition, Section 33-B specifi-
cally contained language stating that the new amended version of
the RPA effectively superseded the disclosure requirements set
forth by the Court in the ADR decision (hereinafter referred to as
the “notwithstanding clause”).
Writing for the three-judge bench, Justice Shah held that Section
33-B was invalid because through the enactment of the amend-
ment to the RPA, Parliament was effectively overruling the Court’s
earlier decision in ADR through ordinary legislation.179 In address-
ing the validity of Section 33-B’s notwithstanding clause, Justice
Shah and Justices Reddi and Dharamadakari all held that while
Parliament did have the power to enact legislation removing or
changing the basis of a decision and could change a law in general,
such power must be exercised “subject to constitutional provision,
particularly, legislative competence and if it is violative of funda-
mental rights . . . such law would be void . . . . The legislature also
cannot declare any decision of a court of law to be void or of no
effect.”180
Justice Shah held that since the Court’s decision in ADR firmly
established that Article 19(1)(a) guarantees and protects the right
of the voter to know the antecedents of a legislative candidate, that
right could only be abridged by laws pursuant to Article 19(2).181
Article 19(2) provides that Parliament may enact laws imposing
reasonable restrictions on the right contained in Article 19(1)(a)
in the “interests of the sovereignty and integrity of India, the secur-
ity of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defama-
tion or incitement to an offence.”182
While Justice Dharmadakari concurred with Justice Shah’s opin-
ion, Justice Reddi dissented from the majority in holding that the
177. Section 33-B of the amended Representation of People Act only required disclo-
sure of assets and liabilities of a candidate and a candidates’ spouse and dependent chil-
dren to the Speaker of the Lok Sabha after a candidate was successfully elected to office.
Representation of People Act, No. 43 of 1951, INDIA CODE [hereinafter Representation of
People Act].
178. Id. at 80.
179. People’s Union for Civil Liberties, (2003) 4 SCC 399, 402–03 (India).
180. Id. at 438.
181. Id. at 434.
182. Id. at 438 (citing INDIA CONST. art. 19(1)(a), 19(2)).
earlier disclosure directives issued by the Court to the ECI in the

ADR decision were “intended to operate only till the law was made
by the legislature.”183 In addition, Justice Reddi held that Section
33-B’s failure to require disclosure of candidates’ educational qual-
ifications did not infringe on voters’ freedom of expression under
Article 19(1)(a). Under Section 33B, candidates would not have to
disclose information regarding cases of acquittals or discharges.184
The Court in PUCL emphasized the need to provide maximal
disclosure to voters in order to counteract the problems of “muscle
and money power,” reiterating many of the same arguments made
in the earlier ADR decision. Justice Shah’s lead opinion in PUCL
in fact went further than his earlier opinion in ADR in its discus-
sion of the high levels of corruption and criminalization in Indian
elections and politics.185 His opinion also referenced reports of
the Law Commission, National Commission to Review the Working
of the Constitution, and other reports in noting that disclosure of
the antecedents of candidates, including assets and liabilities, was
essential for “saving the democracy from the evil influence of
criminalisation of politics, for saving the election from muscle and
money power” and “for having true democracy and for controlling
corruption in politics.”186
The three-judge bench also addressed the issue of whether the
right to vote was a statutory or fundamental right. Justice Shah
held that the right to vote was a statutory right, in line with earlier
decisions, but also held that voters have a fundamental right to
know the antecedents of a candidate that is independent of the
statutory right to vote, because the right to information is part of
the freedom of speech and expression under Article 19(1)(a).187
However, in their separate opinions, Justices P. Venkatarama
Reddi and Justice Dharmadhakari analyzed the right to vote differ-
ently. In contrast to Justice Shah, Justice Reddi held that the right
to vote was a constitutional right (in that it is referenced in the
Constitution), not a fundamental right, but that the voters’ right to
make choices by way of the ballot itself was a fundamental right
because it is part of the freedom of expression protected under
Article 19(1)(a).188 Justice Dharmadakari went further in his sepa-
183. Id.
184. Id. at 423.
185. See id. at 425–30.
186. Id. at 430.
187. Id. at 450, 453.
188. Id. at 459–60.
rate opinion in holding that the right to information was a funda-

mental right and that this “freedom of a citizen to participate and
choose a candidate at an election is distinct from exercise of his
right as a voter which is to be regulated by statutory law on the
election like the RP Act.”189
The three separate opinions in the PUCL decision each
advanced distinct understandings of the status of the right to vote
along a “sliding scale” of constitutional strength, though each opin-
ion acknowledged that the right also implicates separate funda-
mental rights. Shah and Dharmadakari both held that voters had a
fundamental right to information or right to know information
about the antecedents of candidates in elections, while Justice
Reddi held that the actual act of casting a ballot constituted a form
of expression, and that this aspect of the right to vote was therefore
a fundamental right protected as freedom of expression under
Article 19(1).190
4. The Right to Vote for None of the Above
The Supreme Court recently expanded the scope of the right to

information and its doctrinal contours in recognizing the right of
voters to cast “None of the Above” (NOTA) votes in secrecy. In
People’s Union for Civil Liberties v. Union of India (2013), the reform
group P.U.C.L. filed a writ petition under Article 32 challenging
the validity of Rules 41(2) and (3) and 49-O of the Conduct of
Elections Rules, 1961, on the ground that the provisions violate
secrecy of voting which is fundamental to free elections, and is
mandated by Section 192 of the RPA and Rules 39 and 49-M of the
Elections Rules.191 The petitioners also sought relief in the form of
a direction to the ECI to mandate that both paper ballots and elec-
tronic voting machines offer a NOTA option, and orders providing
that voters can exercise the right to vote NOTA in secret under the
RPA, Conduct of Elections Rule, and pursuant to Article 324 of the
Constitution.192
The Court had originally heard the matter in a division bench in
2009, which referred the matter to a larger three-judge bench,
189. Id. at 476.

190. Id. at 402–04.
191. People’s Union for Civil Liberties v. Union of India, (2013) 12 SCR 283 (India).
192. Id. The division bench in the PUCL case referred the matter to a larger bench to
resolve doubts regarding the status of the right to vote as laid out in the Court’s decision in
Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (India).
which decided the case in 2013.193 One of the main issues referred
to the larger bench was the issue of the maintainability of the writ
petition under Article 32. During the hearings before the original
two-judge bench, respondent Union of India argued that the writ
petition was not maintainable under Article 32 on the grounds that
the right claimed by petitioners (the right to vote) was not a funda-
mental right under Part III of the Constitution, but rather a statu-
tory right recognized under the Representation of People Act.194
The division bench referred the matter to a larger bench because
of some confusion and ambiguity about the status and nature of
the right to vote as expressed in the Court’s decisions in the earlier
ADR and PUCL decisions in 2002 and 2003, and a later decision,
Kuldip Nayar v. Union of India (2006).
In adjudicating the threshold issue of maintainability, the three-
judge bench held that the writ was maintainable because while the
right to vote was a statutory right (and not a fundamental or consti-
tutional right) under Section 79(d) of the Representation of Peo-
ple Act, the actual casting of a ballot during an election is part of
the fundamental right to expression guaranteed and protected
under Article 19(1)(a) of the Constitution.195 Writing for the
bench, Chief Justice Sathasivam further clarified that the actual
casting of a vote is “a facet of the right of expression” under Article
19(1)(a) as held by the Court in the earlier ADR (2002) and PUCL
(2003) decisions.196
The Supreme Court invalidated Rules 41(2) and (3) and Rule
49(O) of the rules as ultra vires Section 128 of the RPA and Article
19(1)(a) of the Constitution “to the extent they violate secrecy of
voting.”197 Section 49(O) required that voters seeking to cast a
NOTA vote must first inform the presiding officer of their inten-
tion of casting a ‘none of the above’ vote, and required that the
presiding officer must then record an entry in a rulebook after
recording the signature of the voter.198 According to the PUCL,
Section 49(O) was violative of the constitutional provisions guaran-
teed under Article 19(1)(a) (Freedom of Speech and Expression)
and Article 21 (Right to Liberty) and violated the concept of secret
ballot.
193. People’s Union for Civil Liberties v. Union of India, (2013) 12 SCR 283, 294
(India).
194. Id. at 295.
195. Id. at 307–08.
196. Id. at 307.
197. Id. at 322.
198. Id. at 315.
In reaching this ruling the Court relied crucially on its under-

standing of the nature of the right to vote as a statutory right, and
the actual casting of the vote as a fundamental right and form of
freedom of expression. Because casting a NOTA vote was viewed
as an exercise of the right to expression under Article 19(1)(a), the
Court was able to justify recognizing NOTA as constitutionally pro-
tected activity.199 In addition, the Court recognized NOTA voting
as a valuable alternative form of expression and voice in the politi-
cal system.200 The Court noted that the right to vote NOTA via
secret ballot was effectively eliminated as India shifted to electronic
voting machines which required that voters sign a declaration
affirming that the voted for none of the above.201
The Court thus emphasized that providing a “NOTA” button on
electronic voting machines “will accelerate the effective political
participation in the present state of democratic system and the vot-
ers in fact will be empowered.”202 Finally, the Court again reaf-
firmed the importance of free and fair elections, and that secrecy
of voting is integral to free and fair elections. The Court thus held
that only affording secrecy to voters who cast a vote for a candidate,
and not to those casting NOTA votes violated Article 14’s non-arbi-
trariness and equality requirements. In addition, the Court held
that NOTA voting would effect significant changes in Indian polit-
ics, in observing that:
Such an option gives the voter the right to express his disap-
proval with the kind of candidates that are being put up by the
political parties. When the political parties will realize that a
large number of people are expressing their disapproval with
the candidates being put up by them, gradually there will be a
systemic change and the political parties will be forced to accept
the will of the people and field candidates who are known for
their integrity.203
B. Political Parties and Transparency

Although the Supreme Court’s decisions in the Association for
Democratic Reforms and PUCL v. Union of India were ground-break-
ing in requiring the ECI to issue orders requiring that candidates
for elective office must submit affidavits disclosing assets and liabili-
ties, the Court’s decision, and the ECI’s order, did not extend dis-
199. Id. at 317.

200. Id. at 318.
201. Id. at 315.
202. Id. at 319.
203. Id. at 320.
closure requirements to political parties.204 Again, the Election

Commission played a key role in initiating a new round of reforms
in its 2004 report, by recommending that parties should be
required to publish and disclose information on their finances,
and should be audited by the Comptroller and Auditor General
offices.205 These second generation reforms were met with strong
resistance from the political parties and elected branches of the
central Government.206
Significantly, the Supreme Court of India has been cautious in
adjudicating subsequent cases regarding the actual scope of the
Right to Information in the context of elections. As reflected in
the subsequent analysis, the Court has often declined to issue
definitive judgments regarding the constitutionality of certain laws
and practices, and has deferred to the Election Commission of
India to issue guidelines in many areas, including opinion and exit
polls and election manifestos. In other areas, including trans-
parency of political party financing and judicial transparency, it is
the Delhi High Court and Central Information Commission that
have issued key decisions.
The Supreme Court, High Courts, Election Commission, and
Central Information Commission have, since the 1990s, sought to
expand disclosure and transparency in political party financing
and expenditures, but these efforts have been met with strong
resistance and non-compliance. Political parties have resisted
these efforts either through overt non-compliance and legislative
override, or through a type of “conduit circumvention” whereby
parties find new loopholes or ways to get around expenditure
limitations.207
Under Indian election law, there are restrictions capping cam-
paign expenditures by parties and candidates, but no restrictions
on total contributions.208 However, parties, candidates, and com-
panies are required to disclose information regarding contribu-
tions and expenditures.209 In contrast to the United States,
however, disclosure of this information was largely through the
204. BACKGROUND PAPER ON ELECTORAL REFORMS, supra note 131, at 29. R

205. Id.
206. Sastry, supra note 130. R
207. See M.V. Rajeev Gowda & E. Sridharan, Reforming India’s Party Financing and Elec-
tion Expenditure Laws, 11 ELECTION L.J. 226 (2012); McConnell v. FEC, 124 S. Ct. 619,
672–73 (2003) (discussing the problem of conduit circumvention in U.S. election law).
208. See Gowda & Sridharan, supra note 207, at 233. R
209. Id. at 228, 231.
Income Tax Act, and not through direct disclosure through the
Election Commission or other agencies.210
1. Common Cause v. Union of India (1996)

Prior to the Court’s decisions in Association for Democratic
Reforms and PUCL and the enactment of the Right to Information
Act in 2005, NGO advocacy for transparency focused on statutory
non-compliance with disclosure requirements under India’s Com-
panies Act, Income Tax Act, and the Representation of People’s
Act of 1951. In Common Cause v. Union of India (1996), the NGO
Common Cause filed a PIL challenging the political parties’ non-
compliance with mandatory disclosure provisions of Section 293A
of the Companies Act of 1956, Section 13A of the Income Tax Act
of 1961, and Section 77 of the RPA of 1950.
Section 293A(1) of the Companies Act of 1956 prohibited gov-
ernment companies and other companies that had been in exis-
tence for less than three fiscal years to contribute directly to
political parties or to any person for any political purpose.211 Sec-
tion 293A(2) allowed all other companies not covered under
293A(1) to contribute to political parties, provided that the total
amounts did not exceed five percent of a companies’ average net
profits during the preceding three financial years.212 Section
293A(4) required that companies disclose in their profit and loss
account the amounts contributed to any person, including for
political purposes.213 Section 13A of the Income Tax Act required
that political parties keep and maintain records regarding their
annual income, including information regarding the name and
address of all individuals making contributions over ten thousand
rupees; this section also required that the accounts of political par-
ties be audited by accountants.214 Finally, Section 77 of the Repre-
sentation of Peoples Act of 1951 required that all political parties
maintain records regarding all expenditures associated with their
election, but exempted disclosure of expenditures made by politi-
cal parties in support of candidates.215
Petitioners in Common Cause also highlighted how political par-
ties had effectively ignored and failed to comply with the account
210. See Common Cause v. Union of India, (1996) 2 SCC 752, 754 (India).
211. Id. at 755.
212. Id.
213. Id. at 756.
214. Id.
215. Id. at 756–57.
keeping and filing requirements of the Corporation Act and Sec-

tion 13A of the Income Tax Act, and that most of the political par-
ties had not been filing returns of income in violation of the Act.216
The Companies Section 13A of the Income Tax Act, enacted in
1979, required parties to file tax returns each year since the
1979–1980 year.217 With the exception of the AIADMK, the DMK,
and the Communist Party of India, no other parties (including the
Indian National Congress and BJP) filed returns after 1979, and
notices were issued for the first time to Indian political parties in
1990.218
The Court held that political parties had violated their statutory
obligations under the Income Tax Act and ordered that the secre-
tary of the Ministry of Finance, Department of Revenue launch
investigations against each of the parties that have defaulted on
their obligations and initiate necessary actions. In addition, the
Court ordered the Ministry of Finance to appoint a new govern-
ment body to investigate and ascertain why and under what circum-
stances the provisions of the Income Tax Act were not enforced
against the political parties.219 Finally, the Court held that political
parties that fail to maintain audited and authenticated accounts
and that fail to file tax returns could not claim the benefit of the
exemption for party spending for candidates under Explanation 1
to Section 77 of the Representation of People Act of 1951.220
2. The Legality of “Freebies”: Balaji v. Tamil Nadu

The regulation of political parties in India is currently governed
by the Model Code of Conduct, promulgated by the Election Com-
mission of India. The Indian judiciary’s decisions and election
commission orders in the area of the right to information have
focused primarily on disclosure and reporting requirements for
individual candidates. The Supreme Court has also sought to pro-
vide guidance to the Election Commission regarding regulation of
the manifestos of political parties.
In 2013, the Court in Balaji v. Tamil Nadu (2013) adjudicated a
challenge to the practice of including the promise of “freebies” in
election manifestos of the DMK parties.221 Petitioners in Balaji
216. Id. at 757.

217. Id. at 758.
218. Id.
219. Id. at 767–68.
220. Id. at 768.
221. S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659 (India).
argued that the DMK’s promise of freebies such as free televisions,

computers, goats, and dowries for brides constituted corrupt prac-
tices in violation of the Representation of People Act of 1951.222 In
a remarkable decision, the Court upheld the validity of freebies,
holding that they did not constitute corrupt practices, and held
that they were consistent with the aspirational social-egalitarian
vision of the directive principles and equality as codified in Article
14 of the Constitution.223 However, the Court also noted that while
the distribution of freebies did not constitute a violation of the
Representation of People Act, they still have an influence in elec-
tions and the practice “shakes the root of free and fair
elections.”224
Although the Court upheld the constitutionality and validity of
such practices, it issued directions to the Election Commission of
India to issue new guidelines and directives governing parties’ elec-
tion manifestos, citing the need for ensuring a “level playing field,”
the “purity of the election process,” and the potential for corrup-
tion resulting from such practices.225 Following the Court’s deci-
sion, the Election Commission modified the Model Code of
Conduct by adding a new Part VIII covering regulation of party
manifestos. Part VIII provided that while promises about freebies
and welfare measures were permitted, “it is expected that manifes-
tos also reflect the rationale for the promises and broadly indicate
the ways and means to meet the financial requirement for it. Trust
of voters should be sought only on those promises which are possi-
ble to be fulfilled.”226 Thus, the new Model Code of Conduct
directly incorporates a new “feasibility” requirement or test for
freebies and other promises in manifestos.227
3. The Statutory Right to Information and Party Transparency

Significantly, while the Supreme Court’s RTI decisions have
been successful in securing some compliance in the implementa-
tion of disclosure reforms, the enforcement of a statutory right to
222. Id. at 688, 708, 712.

223. Id. at 712–13.
224. Id. at 713.
225. Id. at 713.
226. See Vasujith Ram, On Freebies and Election Manifestos, LAW & OTHER THINGS (Mar.
18, 2015), http://lawandotherthings.blogspot.com/2015/03/on-freebies-and-election-
manifestos.html (analyzing the potential application of the Model Code of Conduct on
freebies in the manifestos of the Aam Aadmi Party (AAP), the Bharatiya Janata Party (BJP),
and Congress Party).
227. See id.
information under the Right to Information Act has been less suc-
cessful. This is illustrated by ongoing non-compliance of political
parties with disclosure regulations and orders of the Supreme
Court.228
However, in Subash Chandra Agrawal v. Indian National Congress
and Other Parties (2013), the Central Information Commission
ruled that political parties constituted “public authorities” under
the Right to Information Act and therefore were required to dis-
close information regarding all aspects of parties’ campaign
finance under the Act.229 The CIC’s decision highlights the extent
to which the Indian government itself provides free office space,
rent, television time, and tax exemptions to political parties.230
Like earlier judicial decisions, none of the major political parties in
India have complied with the CIC’s decision.231
IV. RETHINKING THE PARTICIPATORY MODEL: THE INDIAN CASE

The Indian judiciary’s jurisprudence on the right to information
in elections, and party transparency, represents a unique positive
rights participatory model of speech. The right to information
regime in India reflects a distinct understanding of speech and par-
ticipation in democracy, and is based on a fundamentally distinct
understanding of the relationship between state institutions, civil
society, political parties, and candidates. This model rejects the
absolute autonomy of public discourse in the public sphere, and
envisions the need for intervention and regulation by an activist
state that can promote informed voting and participation, a strong
anti-criminality/anti-corruption orientation of state regulation,
and the importance of oppositional state actors.
A. Positive Rights and the Role of the State

India’s constitutional exceptionalism, along with its recent his-
tory of social movements and mobilization, helps account for its
unique electoral reform jurisprudence.232 This jurisprudence
228. See Gowda & Sridharan, supra note 207. R

229. Interim Order, Agrawal v. Indian Nat’l Cong., File No. CIC/SM/C/2011/001386
& 00838, ¶¶ 2–3 (2013).
230. Id.
231. Prakash Kamat, CIC Issues Notices to Six Political Parties for Hearing on Nov. 21,
HINDU, (Nov. 10, 2014), http://www.thehindu.com/news/national/other-states/cic-issues-
notices-to-six-political-parties-for-hearing-on-nov-21/article6583006.ece.
232. See generally Teemu Ruskola, Legal Orientalism, 101 MICH. L. REV. 179, 190 (2002)
(discussing how the colonial administration of British India contributed to modern Indian
law).
offers a radical conception of free speech, distinct from other lib-

eral democracies, authorizing an expansive role for the state in
effectuating those rights. Western conceptions of free speech and
participation are firmly grounded in particularly liberal concep-
tions of democracy and the public sphere. In systems like the
United States, liberal democracy is based on particular elite-based
understandings of representative democracy, as well as liberal con-
ceptions of public discourse associated with theories of deliberative
democracy.
India’s positive rights participatory model can be contrasted with
two of the dominant theories of democratic speech in the United
States—the collectivist model and Post’s participatory model.
According to the collectivist model of free speech, the First
Amendment is primarily concerned with promoting self-govern-
ment and informed collective decision making, and protecting
“the communicative processes necessary to disseminate the infor-
mation and ideas required for citizens to vote in a fully informed
and intelligent way.”233 Alexander Meiklejohn, an early proponent
of this approach argued that “the point of ultimate interest is not
the words of the speakers, but the minds of the hearers, so that the
First Amendment is seen as safeguarding collective processes of
decision making rather than individual rights.”234
For Post, the primary constitutional value advanced by the collec-
tivist model is democratic competence, which “refers to the cogni-
tive empowerment of persons within public discourse, which in
part depends on their access to disciplinary knowledge.”235
According to Post, Meiklejohn’s town hall meeting model is an
example of a “managerial” typology of a structure of authority.236
By contrast, under Post’s participatory model, individuals’ unfet-
tered participation in free speech is central to the First Amend-
ment.237 Post’s model emphasizes the role of “public discourse in
establishing democratic legitimacy” and “focuses on speakers as
participants in the autonomous construction of democratic iden-
233. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88
CALIF. L. REV. 2353, 2367 (2000).
234. Id.
235. POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM, supra note 45, at 33–34 R
(2012).
236. Post, Meiklejohn’s Mistake, supra note 1, at 1113; Robert C. Post, Between Governance R
and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1775
(1987).
237. See Post, Reconciling Theory and Doctrine, supra note 233, at 2367–68. R
tity.”238 In elections, Post argues that his model “would require

that public discourse remain sufficiently open to citizens and can-
didates as to serve for them the function of securing democratic
legitimacy by enabling the reconciliation of individual and collec-
tive self-determination.”239
The Indian positive-rights participatory model is distinct from
Post’s participatory model in that it is based on (1) an understand-
ing of free speech rights to information as a positive right based on
Articles 19, 14, and 38(2) of the Indian Constitution, and (2)
embraces a more active role of the state in effectuating that posi-
tive right. In addition, the Indian model goes much further than
the collectivist model in effectuating informational rights and the
goal of informed self-governance and “democratic competence,”240
by directly embracing a role for the state and civil society in facili-
tating informed discourse, debate, and participation in elections
and governance.
The radical nature of the Court’s right to information jurispru-
dence can in part be explained by India’s unique constitutional
structure and political history. The Indian Constitution was in part
drafted as an instrument and tool for social and egalitarian reform
and transformation.241 Gary Jacobsohn has gone further and
argued that the Indian Constitution is a “militant” constitution that
sought to reform and ameliorate the fundamental social and eco-
nomic inequalities and injustice in Indian society.242 This unique
constitution orientation is illustrated by the inclusion of a set of
non-justiciable Directive Principles in the Indian Constitution,
which provide aspirational goals for social, economic, and political
reforms that India must achieve.243 Here, understanding the right
to freedom of speech in Article 19(1)(a) of the Indian Constitu-
tion in terms of the tension between universalist and particularist
conceptions of rights is significant. The Indian Supreme Court has
interpreted the scope of Article 19 as allowing for greater state reg-
238. See Robert Post, Regulating Election Speech Under the First Amendment, 77 TEX. L. REV.
1837, 1841 (1998–1999).
239. Id.
240. See POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM, supra note 45, at 37–41 R
(recognizing that in certain areas of First Amendment jurisprudence, the Court has held
that certain areas of speech are protected because they advance the value of democratic
competence).
241. AUSTIN, supra note 19, at 26–46. R
242. JACOBSOHN, supra note 19, at 91; GARY JACOBSOHN, THE DISHARMONIC CONSTITU- R
TION 12 n.27, http://uchv.princeton.edu/constitutionalism/Jacobsohn.pdf.
243. See AUSTIN, supra note 19, at 41–44, 75–83. R
ulation of candidate and party speech and conduct in elections,

and as not extending to corporate speech.244
The positive right to information in India is based on this unique
constitutional structure. In interpreting Article 19(1)(a) (freedom
of speech and expression), the Court has recognized both negative
and positive rights aspects to freedom of expression by relying on
the broader structural protection and obligations, as well as com-
mands of Article 14 and Article 38(2). Article 14 contains protec-
tions for the broader right to equality, and through the Court’s
jurisprudence since the late 1970s, the scope of equality in Article
14 has been broadened significantly.245 Article 38(2) of the Direc-
tive Principles also contains sweeping language about the role of
the Indian state in ameliorating inequality, providing that “The
State shall, in particular, strive to minimise the inequalities in
income, and endeavor to eliminate inequalities in status, facilities
and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different
vocations.”246
The Delhi High Court in the Association for Democratic
Reforms decision cited to the Supreme Court’s decision in the Air-
waves case where the Court held that under the Indian Constitu-
tion, “the State is not merely under an obligation to respect the
fundamental rights guaranteed by Part III, but under an equal obli-
gation to ensure conditions in which those rights can be meaning-
fully and effectively enjoyed by one and all.”247 The Court
recognized that the directive principles provide support for a posi-
tive rights-based conception of the right to information, but also
that the state must play an active role in ensuring that negative and
positive rights can be exercised in a meaningful way.248
The Indian model thus offers a radically different understanding
of the relationship between the state and public discourse vis-a-vis
democratic self-government models. The Indian model is based
244. See supra Part III for discussion accompanying note 178.
245. Article 14 provides that “the State shall not deny to any person equality before the
law.” INDIA CONST. art. 14.
246. Article 38 (1) of the Indian Constitution provides: “The State shall strive to pro-
mote the welfare of the people by securing and protecting as effectively as it may a social
order in which justice, social, economic and political, shall inform all the institutions of the
national life.” Article 38(2) states that: “(2) The State shall, in particular, strive to mini-
mise the inequalities in income, and endeavor to eliminate inequalities in status, facilities
and opportunities, not only amongst individuals but also amongst groups of people resid-
ing in different areas or engaged in different vocations.”
247. Ass’n for Democratic Reforms v. Union of India, 2001 AIR 126 (Del.) 136 (India).
248. See Mate, supra note 13. R
on a recognition that the autonomy of the public sphere, if

unchecked and unregulated, can lead to distortions in political dis-
course that ultimately undermine the representative nature of
democracy.249 India’s right to information regime rejects elevating
the protection of autonomy as a primary goal of Article 19’s free
speech and expression protections, and instead embraces the goal
of leveling the playing field and effectuating the rights of all voters
to exercise informed voting.250 In addition, the Indian model
directly recognizes the duty and obligation of the state to directly
confront and ameliorate inequality and distortion in the public
sphere.251
B. Anti-Criminality and Anti-Corruption Rationales

A second key facet of the Indian model is the anti-criminality
and anti-corruption orientation of the Court’s right to information
jurisprudence. In its decisions, the Court has framed the right to
information around narratives related to the purity and health of,
and the need to “cleanse” the political system.252 Consequently,
the right to information in elections is not part of a neutral dis-
course about government transparency, but rather a response to
perceived criminality and corruption.
As illustrated in Part III, the Court has held that the primary
objectives of recognizing the right to information, and mandating
disclosure requirements are countering criminality and corrup-
tion. In addition, courts have noted the failure of the Central Gov-
ernment to address these issues in directing the Election
Commission to issue interim orders requiring disclosure for legisla-
tive candidates. For example, the Delhi High Court directly relied
on reports of the Election Commission, Law Commission, and the
Vohra Committee in directly documenting the corrosive effects of
criminalization and corruption on the Indian political system.253
C. The Right to Information and Oppositional Actors

A third key aspect of the Indian participatory model lies in the
fundamentally oppositional nature of state institutions, including
249. See Fraser, supra note 3. R
250. LAW COMM’N OF INDIA, ELECTORAL REFORMS REPORT NO. 255 (2015) [hereinafter
ELECTORAL REFORMS REPORT]. See generally Sec’y, Ministry of Info. & Broad. v. Cricket Ass’n
of Bengal, (1995) 2 SCC 161 (India).
251. See Sec’y, Ministry of Info. & Broad. v. Cricket Ass’n of Bengal, (1995) 2 SCC 161
(India).
252. Id.
253. See ELECTORAL REFORMS REPORT, supra note 250, at 1.3. R
courts and other independent commissions, and civil society

groups—vis-à-vis the party-centric system of government. A signifi-
cant aspect of the Court’s development of the right to information
regime is premised on a rejection of parliamentary sovereignty,
and an embrace of constitutional supremacy that is unique to
Indian constitutional exceptionalism.254 In its decisions, the
Supreme Court of India has embraced a conception of the right to
information in which the judiciary, Election Commission, and Law
Commission each play an important role in defining the scope of
the right to information as a limit on parliament’s power.
The Court’s expansion of the right to information, and its orders
and directives mandating disclosure are arguably driven by a fun-
damental distrust and rejection of the legitimacy and trustworthi-
ness of electoral processes and governance. This is further
illustrated by the Court’s decision in PUCL v. Union of India (2013),
in which the Court recognized the right to vote for ‘none of the
above’ as a fundamental right, and one protected within the right
to speech:
Such an option gives the voter the right to express his disap-
proval with the kind of candidates that are being put up by the
political parties. When the political parties will realize that a
large number of people are expressing their disapproval with
the candidates being put up by them, gradually there will be a
systemic change and the political parties will be forced to accept
the will of the people and field candidates who are known for
their integrity.255
In India, courts and independent state commissions, like the
Election Commission and Law Commission, work together to
define and reshape the nature of public discourse in elections,
both through the right to information jurisprudence and the
reform and regulation of party manifestos through the Model
Code of Conduct. Working within this evolving framework of par-
ticipatory rights, civil society groups have mobilized in opposition
to corruption and criminality in elections and governance. Oppo-
sitional actors within the state play a key role in preventing the
state from overwhelming civil society entirely and compromising
the autonomy of the public sphere.
254. See People’s Union for Civil Liberties v. Union of India, (2013) 12 SCR 283, 294
(India) (holding that “the doctrine of parliamentary sovereignty as it obtains in England
does not prevail here except to the extent and in the fields provided by the Constitution.
The entire scheme of the Constitution is such that it ensures the sovereignty and integrity
of the country as a republic and the democratic way of life by parliamentary institutions
based on free and fair elections.”).
255. Id. at 320 (upholding the right to vote for none of the above via secret ballot).
V. THE PARTICIPATORY MODEL AND INDIAN DEMOCRACY:

THEORETICAL IMPLICATIONS
This final Section analyzes how the Indian positive-rights par-

ticipatory model can address the weaknesses of participation and
public discourse in liberal democracy theory.256 The Indian right
to information regime reveals important insights about how we
conceptualize access to information within the framework of free
speech rights. However, obstacles to full implementation of this
right, as reflected in the failure of political parties to comply with
CIC decisions regarding disclosure requirements, suggest that even
positive-rights based transparency regimes have important
limitations.
In India, scholars have also highlighted key structural obstacles
to making participation effective and real. Amartya Sen and Jean
Dreze distinguish between democratic ideals, democratic institu-
tions, and democratic practice, highlighting the gap between dem-
ocratic institutions and democratic practice in India, specifically
focusing on barriers to effective democratic practice.257 While
India has functioning democratic institutions, it has fallen short of
making effective democratic practice a reality for most voters. Sen
and Dreze highlight key obstacles or challenges to the three key
foundations of democratic practice: facility or functional demo-
cratic institutions, involvement (referring to informed public
engagement with these institutions), and equity (referring to the
level of fairness in the distribution of power within a particular
system).258
In order to address how the positive-rights participatory model
can address weaknesses in liberal democracy conceptions of dis-
course and participation, this Section draws on insights from litera-
ture on state-in-society scholarship, and development and
participation in Indian politics. As such, this Section posits that the
positive rights participatory model can help achieve “participatory
equilibrium” by addressing the problems of autonomy, access, and
accountability.
256. See infra Sections V.A–V.C.

257. DRÈZE & SEN, supra note 14, at 347–50. R
258. Id. at 353.
A. Autonomy and Democracy in India

As noted earlier, one of the key challenges facing contemporary
representative democracy is the autonomy of the public sphere.259
There are two aspects of autonomy that are crucial to achieving
maximal participation in the polity—internal and external auton-
omy.260 Internal autonomy refers to the autonomy of individuals
and groups within the public sphere of a democracy to effectively
participate and exercise speech, associational, and other rights.261
External autonomy refers to the freedom of individuals and groups
within civil society from coercion, oppression, or interference from
the state or other institutions, groups, or organizations that might
repress autonomy.262 The positive rights participatory model can
help bolster both types of autonomy.263
In his scholarship on democratization in India and other coun-
tries, sociologist Patrick Heller has identified two axes of democ-
racy—the vertical and horizontal—building on insights from the
state-in-society literature. The state-in-society literature analyzes
the ways in which state institutions and bureaucracy interact with
society.264 According to Heller, the vertical axis of democracy
refers to the relationship between the state and society, while the
horizontal axis focuses on the “internal qualities of associational
life” within civil society.265 The horizontal dimension encompasses
both concerns about associational autonomy and baselines of
socio-economic equality and access. The vertical dimension
focuses on the extent to which the state institutions limit or con-
strain civil society so as to limit meaningful participation in public
259. Here, in contrast from existing conceptions of autonomy in the literature on First
Amendment free speech, and deliberative democracy, this Section relies on literature from
state-society and democratization in delineating a more robust conception of autonomy.
260. Theorists and scholars have offered competing conceptions and dichotomies for
understanding different facets of autonomy. See HABERMAS, BETWEEN FACTS AND NORMS,
supra note 2, at 84–94 (1996); see also Heller, Democracy, Participatory Politics and Development, R
supra note 98, at 646–47. R
261. See Heller, Democracy, Participatory Politics and Development, supra note 98, at 6. R
262. Id. at 647.
263. See Patrick Heller, Degrees of Democracy: Some Comparative Lessons from India, 52
WORLD POLITICS 484, 517–19 (2000) (tracing interactions between democratic institutions
and social processes in order to understand obstacles to democratic deepening in India).
264. Among the leading state-in-society pieces of scholarship are JAMES SCOTT, SEEING
LIKE A STATE 2–5 (1998) and JOEL MIGDAL, STRONG SOCIETIES AND WEAK STATES: STATE-
SOCIETY RELATIONS AND STATE CAPABILITIES IN THE THIRD WORLD 260–77 (1988).
265. Patrick Heller, Democratic Deepening in India and South Africa, 44 J. ASIAN & AFR.
STUD. 123, 125–26 (2009) (analyzing trajectories of democratization in India and South
Africa and arguing that subordinate groups have limited opportunities for meaningful
engagement with state institutions).
discourse, elections, and governance.266 In this Section, I use the

terms “internal autonomy” (or “associational autonomy”) to corre-
spond to Heller’s horizontal axis of democracy, while “external
autonomy” corresponds to the vertical axis of state-society
relations.
1. Internal-Associational Autonomy and Effective Citizenship
In order to achieve internal autonomy, a political system must

address the socio-economic equality that is necessary for effective
participation, the provision and effectuation of meaningful citizen-
ship rights (including voting rights, education, and access to infor-
mation), and active promotion and facilitation of social
movements and other channels of democratic engagement.267 The
problem of exclusivity and access to the public sphere for multiple
publics can be understood in terms of the particular hurdles and
obstacles that exist within polities for groups to mobilize and attain
influence within the public sphere and discourse. In order to pro-
mote and enhance the involvement of individuals and groups in
democratic systems operating in the context of stratified societies,
one must deal with the structural and institutional realities of citi-
zenship, and how citizens interact with the state and civil society.
As Rueschmeyer et al. argue, “the capacity of subordinate classes to
secure their material interests through electoral politics ultimately
depended on their success in surmounting significant obstacles to
collective action.”268
While the presence of strong civil society institutions may be a
precondition for the autonomy of citizens and group mobilization,
both civil society institutions and the state can play a crucial role in
fostering and promoting democratic engagement and participa-
tion, or what Heller refers to as “effective citizenship.”269 Heller
defines effective citizenship as the ability of citizens to exercise free
will, rights of association and voting rights autonomously, noting
that “this capacity of rights-bearing citizens to associate, deliberate,
and form preferences in turn underwrites the legitimacy of demo-
cratic political authority.”270
266. Id. at 126.

267. Id. at 125, 131–132.
268. Heller, Democracy, Participatory Politics, supra note 98, at 644 (citing R. DIETRICH R
RUESCHEMEYER ET. AL., CAPITALIST DEVELOPMENT AND DEMOCRACY (1992)).
269. Id. at 645.
270. Id.
Heller argues that the “core democratic deficit” in developing

democracies is the lack of effective citizenship, and that “[c]lassical
and contemporary theories of democracy all take for granted the
decision-making autonomy of individuals as the foundation of
democratic life.”271 He then delineates two key challenges to the
effective mobilization of groups in developing democracies—the
“vertical problem of state-society relations” and the “horizontal
problem of perverse social inequalities [that] undermine the asso-
ciational autonomy of citizens.”272 In order to guarantee associa-
tional autonomy in liberal democracy, particularly in the context of
stratified developing democracies, the state must provide a mini-
mal access to equal resources, and information for individuals to
be able to effectively exercise effective citizenship.273
The positive rights participatory model, through the active
advancement of informational rights and transparency by the state
and state institutions, can help promote effective citizenship and
associational autonomy. The Indian case illustrates how state inter-
vention and involvement can enhance participatory democracy. As
Heller describes, decentralized forms of participatory governance,
facilitated by the collaboration of the state and civil society institu-
tions, can help bolster democracy.274 In India, social and political
movements that have effected dramatic changes have often
originated within formal spheres of governance. In addition, while
social movements and NGOs have often been at the leading edge
of public interest litigation in India, in some instances, courts and
other institutions have also helped catalyze, drive, and shape social
movements. For example, the Supreme Court of India’s public
interest litigation decisions in the late 1970s and early 1980s
helped catalyze litigation and grassroots movements aimed at
addressing human rights and the cause of social justice reforms
such as prison reform.275
This is also illustrated by some of the Court’s decisions in the
right to education cases, the right to food litigation, and the right
to information litigation, with many of these decisions helping
shape and influence subsequent social movements, agitation, and
271. Id.
272. Id. at 647.
273. Id. at 647–48.
274. Id. at 646–48.
275. See CHARLES EPP, THE RIGHTS REVOLUTION (1994); see Manoj Mate, The Rise of Judi-
cial Governance in the Supreme Court of India, 33 B.U. INT’L L.J. 169, 191–98 (2015).
government legislation.276 These movements illustrate how state

intervention and interaction with civil society can bolster internal
autonomy by bolstering grassroots social movements. The
Mazdoor Kisan Shakti Sangathan (MKSS) farmers’ movement in
Rajasthan that helped catalyze the national right to information in
India also illustrates these dynamics. Although this movement
arguably started outside of the formal channels of politics, it ulti-
mately helped reorient and reshape the terrain of grassroots polit-
ics—how citizens and social movements could interact with the
state to broaden the space for ordinary citizens to interact with the
state in profoundly important ways.277 In addition, the success of
the MKSS movement not only helped inspire state and regional
RTI movements, but also helped galvanize the national RTI move-
ment, resulting in the 2002 and 2003 judgments of the Supreme
Court of India, and the enactment of the Right to Information Act
of 2005.278
The activity of the judiciary and the election commission,
together with the work of civil society movements like ADR, PUCL
and other groups, further illustrates potential synergies between
the state and civil society.279 Civil society, courts, and other govern-
mental entities can play complementary roles and functions to
enhance and promote rights to information and transparency and
facilitate channels of public discourse. Another example of state
interaction with grassroots participation can be seen in the enact-
ment of the 73rd and 74th constitutional amendments in India
that established the panchayati raj regime, a decentralized system
276. See Sanjay Ruparelia, A Progressive Juristocracy: The Unexpected Social Activism of
India’s Supreme Court (Kellogg Inst., Working Paper No. 391, Feb. 2013). Yet another exam-
ple of coordination between social movements, civil society, and oppositional state institu-
tions can be seen in the right to food movement in India. It began as a social movement in
which subaltern and subordinate groups, including peasant farmers groups, worked with
civil society and legal groups to address famine prevention. See Jean Drèze, Democracy and
The Right to Food, 39 ECON. & POL. WKLY. 1723, 1726–28 (2004) (describing right to food
social movement and right to food litigation in the Supreme Court of India).
277. See generally Rob Jenkins & Anne Marie Goetz, Accounts and Accountability: Theoreti-
cal Implications of the Right-to-information Movement in India, 20 THIRD WORLD Q. 603 (1999)
(tracing the development of the MKSS movement, and its broader impact on the national
right to information movement).
278. Sudha Venu Menon, Right to Information Act and NREGA: Reflections on Rajasthan,
MUNICH PERSONAL REPEC ARCHIEVE, http://mpra.ub.uni-muenchen.de/id/eprint/7351
(last visited July 24, 2015).
279. A recent example of the inter-related nature of social movements within the pub-
lic sphere, and political movements can be seen in the emergence of the Aam Aadmi Party,
which had its roots in the national RTI movement. See generally Andrew Wyatts, Arvind
Kejriwal’s Leadership of the Aam Aadmi Party, 23 CONTEMP. S. ASIA 167 (2015).
of local governance.280 As Dreze and Sen and others have argued,

this decentralization of politics fundamentally transformed the
nature of participation in Indian democracy and reconfigured
power relationships between subordinate groups and state and
local actors.281
2. External Autonomy
The positive rights participatory model can also help promote

external autonomy—a precondition to effective citizenship. As
noted earlier, external autonomy refers to freedom of individuals
and groups within civil society from coercion or oppression by the
state, political parties, social actors, and other groups. The con-
cept of external autonomy is thus based on the underlying notion
that there should be some balance between the power of the state
and civil society. As Rueschemeyer et al. note, “the existence of a
strong civil society enjoying relative autonomy from the repressive
capacities of the state was critical to working class political
formation.”282
Reuschemeyer et al. argue that understanding the relationship
between civil society and the state is crucial for understanding the
unique nature of democratization in India.283 Prior to the 1920s,
the Indian National Congress party was effectively a “reformist
party of urban professionals and progressive elements of the eco-
nomic elite.”284 Gandhi expanded the party’s appeal beyond the
elites through mass politics, transforming it into a “legitimate
national organization with a mass base.”285 However, in this pro-
cess of mass mobilization, subordinate classes, including tenant
farmers, poor peasants, and landless laborers were largely excluded
and “never mobilized on their own terms as an independent politi-
cal force with interests and strategies of their own.”286 Although
land reform in the 1950s and 1960s did redistribute some landed
wealth, “land ownership remained largely confined to local domi-
280. See INDIA CONST., 73rd Amendment and 74th Amendments; see also Heller, Toward
a Sociological Perspective, supra note 100, at 14–15 (discussing the impact of the 73rd and R
74th amendments on Indian democracy).
282. See Heller, Democracy, Participatory Politics and Development, supra note 98, at 644 R
(citing DIETRICH RUESCHMEYER ET. AL., CAPITALIST DEVELOPMENT AND DEMOCRACY (1992)).
283. Id.
284. Heller, Degrees of Democracy, supra note 263, at 504. R
285. Id.
286. Id.
nant castes.”287 In addition, efforts aimed at local democratization

“were defeated by elite capture.”288
In India, Heller suggests that the unique system of patronage
politics that characterized the rule of the Congress party govern-
ments through the late 1980s further undermined the authority
and capacity of an inherently weak Indian state.289 Congress’s
dominance in national politics was achieved through the creation
of vertical patronage networks consisting of a broad range of inter-
ests and groups.290 Ronald Herring argues that this model of state-
society relations constituted a form of “embedded particularism”
that led to rent-seeking by interest groups and further undermined
state capacity in the area of public good provision and reform of
institutions.291 In the early 1990s, as India shifted from the one-
party dominance of Congress to the rise of multiple parties, includ-
ing the Hindu Right BJP, the leftist party coalitions, and the
regional and caste-based parties, the “basis for mobilization . . .
shifted from patronage to identity populism.”292 In this new era,
Indian governance became increasingly dominated by identity
politics and claims for government quotas and other particularist
treatment and privileges resulting in, what Pranab Bardhan has
called, “equal-opportunity plundering by all interest groups.”293
Heller argues, as follows:
[T]he state enmeshed itself in a matrix of accommodations and
patronage networks and thus undermined its ability to pursue
transformative projects, including the extension of public legal-
ity to rural areas. While this mode of engagement did provide a
basic framework for political order, it failed to build institution-
ally robust arenas of civic associationalism and severely curtailed
both the instrumental and the authoritative efficacy of the
state.294
In the Indian context, both state and non-state actors have signif-
icantly restricted external autonomy since the early years of the
Indian republic. For example, following independence and incep-
tion of the constitutional republic in 1950, the ruling Indian
287. Id. at 505.

288. Id.
289. Id. at 504–505.
290. Id. at 494.
291. Id. (citing Ronald Herring, Embedded Particularism: India’s Failed Developmental State,
in THE DEVELOPMENTAL STATE (Meredith Woo-Cummings ed., 1999)).
292. Id.
293. Id. (citing Pranab Bardhan, Sharing the Spoils: Group Equity, Development, and
Democracy (unpublished manuscript, UC Berkeley, 1997)).
294. Id. at 505 (arguing that Kerala was far more successful in its efforts at democratiza-
tion and promoting civic associationalism).
National Congress party regimes repressed civil society in many

respects. One crucial example of this was the outright domination
and co-optation of labor unions and the labor movement by the
Congress party governments in the early years of Indian
independence.295
As Vivek Chibber has demonstrated, both private capitalists and
Congress party effectively blocked the formation of independent
labor parties and made labor organizations highly dependent on,
and the effective instruments of, the Congress party.296 The end
result was the establishment of an industrial planning regime “that
subordinated labor’s interests to the imperatives of promoting cap-
ital investment.”297 Consequently, political parties in India argua-
bly weakened and impeded industrial planning and development
by weakening labor unions and strengthening the relative power of
national corporate elites.298
Another example of restrictions on external autonomy can be
seen in the dominance of caste elites at the state and local level in
Indian politics, embedded within a broader system of state and
local clientelist politics.299 Heller suggests that the lack of an impo-
sition of strong vertical state power vis-à-vis the state and local gov-
ernments in India has given way to a clientelist regime of power in
which the “permeability of state authority” is “most dramatically
exposed by the existence of private caste armies (especially in
Bihar) and elite control over local police forces.”300 The domi-
nance of caste-based elites and other elites at the state and local
level since Indian independence has significantly restricted the
autonomy of the public sphere at the state and local level.301
Although there has been some weakening of clientelist regimes as
295. VIVEK CHIBBER, LOCKED IN PLACE: STATE-BUILDING AND LATE INDUSTRIALIZATION IN

INDIA 110–26 (2003) (tracing how party and capitalist elites co-opted labor parties in
India).
296. See Heller, Democratic Deepening, supra note 265, at 135 (citing Vivek Chibber, From R
Class Compromise to Class Accommodation: Labor’s Incorporation into the Indian Political Economy,
in SOCIAL MOVEMENTS IN INDIA: POVERTY, POWER, AND POLITICS 32–61 (Raka Ray & Mary
Fainsod Katzenstein eds., 2005)).
297. Id.
298. See CHIBBER, supra note 295, at 127–52, 170–82, 193–200 (arguing that the co- R
optation of labor parties in India enabled capitalist elites to strongly resist and weaken
industrial planning efforts); see Heller, Degrees of Democracy, supra note 263, at 494 (arguing R
that “[l]abor unions have rarely extended beyond the protective confines of the organized
sector (large factories and public employees) and in many instances have become little
more than vehicles for the political ambitions of local bosses.”).
299. See Heller, Degrees of Democracy, supra note 263, at 493. R
300. Id.
301. Id.
democracy has expanded in India, these new political forces still

remain firmly embedded in the social cleavages, including caste
divisions still remaining in India today.302
In addition, the pervasiveness of patronage, criminality, and cor-
ruption directly restricts autonomy in the public sphere.303 As
described earlier, patronage networks can undermine state capac-
ity and allow for elites at the subnational level to capture state and
local institutions and undermine external autonomy. In addition,
patronage and corruption may stymie actual debates and issue-
based contestation by emphasizing the provision of material bene-
fits to voters.304 Finally, criminality in elections and governance
dissuades and intimidates voters in elections, and also undermines
effective participation.305
The positive rights participatory model can help counteract
threats to external autonomy in several ways, by strengthening state
institutions and state capacity in the area of political and electoral
regulation, (including bolstering the right to information),
increasing transparency, and providing coordinating mechanisms.
Strengthening state capacity in elections, policy-making, and
administration can reduce opportunities for rent-seeking, corrup-
tion, and elite capture at the state and local level—actions that can
reduce external autonomy.306 Courts and other institutions can
play a crucial oppositional role in checking abuses of state power.
The positive rights model can bolster civil society by providing
greater levels of information to groups about the functioning of
government, and catalyze social and political movements. Addi-
tionally, the positive rights model can bolster state capacity so as to
“check” local elites from dominating subaltern groups.
As Heller notes, many states in India have not had the fortuitous
political trajectory of Kerala; as such, efforts should be undertaken
to promote the conditions under which democratic deepening, the
exercise of effective citizenship, and maximizing individual and
group participation in elections and governance occurs.307 Per
Heller, Kerala presents a striking example of a state characterized
302. See generally KANCHAN CHANDRA, WHY ETHNIC PARTIES SUCCEED (2004).
303. See Arjun Appadurai, Success and Failure in the Deliberative Economy, in DELIBERATION
AND DEVELOPMENT: RETHINKING THE ROLE OF VOICE AND COLLECTIVE ACTION IN UNEQUAL
SOCIETIES 67, 69 (Patrick Heller & Vijayendra Rao eds., 2015).
304. See DRÈZE & SEN, supra note 14, at 364–65. R
305. Id. at 365–66.
306. See Manoj Mate & Adnan Naseemullah, State Security and Elite Capture: The Imple-
mentation of Antiterrorist Legislation in India, 9 J. HUM. RTS. 262, 275–76 (2010).
307. Heller, Degrees of Democracy, supra note 263, at 510–14. R
by democratic deepening over time, suggesting that Kerala’s suc-

cess can be explained by how the system allowed for the ventila-
tion, open debate, and consideration of class demands; this paved
the way for dynamic interaction between political and civil society,
“crowding in” effects, and a strong and healthy relationship
between political parties and social movements.308
B. Access and Inclusivity in the Public Sphere

This Section explores how social and economic inequality results
in distortion of discourse in the public sphere and in elections and
governance. As Fraser and other critical scholars of liberal democ-
racy have observed, the nature of discourse in the public sphere in
liberal democracies also suffers from exclusivity. In stratified socie-
ties characterized by high levels of inequality, the idea of single
comprehensive overarching public is problematic; it inevitably
excludes a wide array of groups and interests and therefore, “it is
not possible to insulate special discursive arenas from the effects of
societal inequality.”309 As a result, “where societal inequality per-
sists, deliberative processes in public spheres will tend to operate to
the advantage of dominant groups and to the disadvantage of sub-
ordinates.”310 In the context of single comprehensive public
spheres, subordinate groups “would have no arenas for delibera-
tion among themselves about their needs, objectives, and strate-
gies.”311 In India, the actual nature of democratic discourse and
opinion and of will formation is dominated by political, intellec-
tual, and corporate elites, a phenomenon that highlights a major
gap between elite and mass discourse.
1. Elite Dominance of Political Discourse

India’s unique free speech jurisprudence must be understood
and contextualized within the broader framework of historical nar-
ratives of nation-building, as well as broader frameworks of social
and political reform. From the decades preceding India’s inde-
pendence, up through the early decades of the Indian republic,
the nature of the colonial and post-colonial political ideology of
the Indian National Congress movement, and Congress party, was
shaped and influenced both by the unique post-colonial context
and influence of western liberal democracy norms, as well as by the
308. Id.
310. Id.
311. Id.
elite composition and character of the leadership of the Congress

itself.312
Sudipta Kaviraj, a leading theorist of Indian history and politics,
has critically analyzed the elite orientation of the ideology and dis-
course of the Indian National Congress party.313 Kaviraj highlights
the gulf between elite and mass discourse in the pre and post-inde-
pendence eras, and suggests that tensions between the elite-charac-
ter of Nehru’s own ideological discourse and political leadership
must be juxtaposed against Gandhi’s efforts to broaden the appeal
of Congress and the independence movement to a mass audi-
ence.314 Because Nehru was ultimately able to pursue his own ide-
ology and agenda of constitutional and political reform through
the Constituent Assembly and economic policy-making in the nas-
cent Indian bureaucracy, Kaviraj suggests that in the early years of
the republic, Nehruvian policy-making had a distinctly elite charac-
ter—shaped primarily by the influences of the urban and landed
elites and the professional classes.315 The core failing then of
Nehru’s Congress party was that it turned completely away from
the mass politics ideology and mass discursive strategy of Gandhi,
instead turning “inwardly,” back into the elite spheres of govern-
ance by bureaucracy and planning.316
Additionally, Congress arguably undermined and thwarted leftist
social movements and stifled subaltern discourse.317 Kaviraj sug-
gests that the key failing of the Nehruvian Congress regime was its
failure to broaden its discursive strategies to appeal beyond the
realm of the urban and propertied elites to the masses, including
the rural villages of India. He notes that Congress “did not try
deliberately to create or reconstitute popular common sense about
the political world, taking the new conceptual vocabulary of rights,
institutions, and impersonal power into the vernacular everyday
discourses of rural or small-town Indian society.”318
312. See KAVIRAJ, supra note 18, at 23–31. R

313. Id.; see RAJNI KOTHARI, CASTE IN INDIAN POLITICS 362 (1970).
314. See KAVIRAJ, supra note 18, at 23–31. R
315. Id. at 23–24 (arguing that Nehru “enjoyed a silent but subtle and massively signifi-
cant cultural approval among the modern elite.”).
316. See id. at 28–29.
317. Id. at 24 (“But recent historical research has also shown how quickly the main
Congress leadership was able to shut off such space, or bring their movements under
control.”).
318. Id. at 29 (further arguing that Congress “neglected the creation of a common
thicker we-ness (something that was a deeper sense of community than merely the com-
mon opposition to the British) and the creation of a single political language for the entire
polity.”).
India’s right to information jurisprudence arguably reflects a

tension between the Nehruvian and Gandhian narratives of nation
building. On one level, the Court’s rights jurisprudence reflects
the broader project of social and political reform—aimed at ame-
liorating social, political, and religious inequality—as reflected in
the Court’s decisions in Airwaves, Association for Democratic Reforms,
and PUCL decisions, which articulate an active role for the state in
transforming fundamental rights into meaningful rights that facili-
tate participation in Indian democracy. However, at another level,
the elite orientation of this jurisprudence highlights an important
weakness in the dominant political, historical, and constitutional
narratives of power. In articulating a positive rights participatory
model, the state, in a collaborative partnership with civil society,
must find ways to engage with competing or alternate publics and
narratives at the national, local, and subaltern levels.
Although India underwent massive political transformation in
the late 1980s and early 1990s, shifting from one party rule to an
era of multipartyism with new caste and regional parties, distor-
tions in political discourse reflects the dominance of business and
intellectual elites.319 Dreze and Sen argue that media coverage on
political and other newsworthy stories is heavily skewed toward the
interests of upper-class urban elites in India.320 Dreze and Sen also
cite to the scholarship of Ashok Rudra, who argues that “the edu-
cated population of India, with a shared interest in the benefits to
be derived from social inequality, has become part of the ‘ruling
coalition’ which dominates policy discussions, and as a conse-
quence, also governs what happens in the country.”321
The power of corporate money and criminal syndicate financing
has also exerted tremendous influence over Indian elections and
politics, as corporations, including private news media companies,
donate billions in unregulated “black money” to politicians.322 The
319. Id.
320. See DRÈZE & SEN, supra note 17, at 266 (noting that “there is very little coverage of R
rural issues in the mainstream media: a recent study found that rural issues get only 2 per
cent of the total news coverage in national dailies (in spite of national dailies being widely
read in rural areas). The interests of what is described as the Indian ‘middle class’ (even
though most members of this class are way above the middle of the spectrum of affluence
of Indians as a whole) receive enormously more attention than the concerns of the under-
privileged, with a bias that slants the papers and broadcast channels towards such subjects
as fashion, gastronomy, Bollywood and cricket.”).
321. DRÈZE & SEN, supra note 17, at 268 (citing Ashok Rudra, Emergence of the Intelligent- R
sia as a Ruling Class in India, 24 ECON. & POL. WKLY. 142, 147–49 (1989)).
322. See Milan Vaishnav, The Market for Criminality: Money, Muscle, and Elections in India
(Univ. of Penn. Working Paper, Aug. 31, 2011).
role of money has increased dramatically in politics and elections

in India.323 By some estimates, the average costs of contesting elec-
tions per Lok Sabha constituency in 2014 approached 10 crore
(100 million rupees or about $1.5 million U.S. dollars).324 India’s
political system has also struggled with the challenges of the
criminalization of politics at levels that interfere with core notions
of the rule of law, responsiveness, and accountability.
The positive rights participatory model can address the unequal
and distorted nature of discursive democracy in each of these
domains. In contrast to Post’s participatory model, I suggest that
the Indian positive rights model rejects a “passive” conception of
public opinion formation in the public sphere, and instead repre-
sents a more “active” model in which the state itself can actively
bolster and promote robust political discourse and deliberation, by
facilitating processes and channels of communication. Thus,
under the positive rights participatory model, the state can play a
leading role in regulating and expanding participation in public
discourse.
First, the state can provide greater levels of information to voters
and directly confront the reality of elite level distortion in news
media coverage and political discourse by providing more channels
for debate and public deliberation to civil society groups, and to a
broader range of candidates and parties to enable a broader range
of voices to be heard in political and electoral discourse. Within
liberal democracy, the passive conception of participation as voting
has been accompanied by a decline in the deliberative aspects of
democracy, including a decline in individuals’ ability to participate
and shape public opinion through public discourse.325 This is
magnified in countries like India which have a high degree of ine-
quality and social stratification, where voting is limited to retro-
spective voting, and individuals lack the ability to participate in
discourse.
A second area of reform that states must undertake is con-
fronting the challenge of corporate control over the media, the
elite biases and skew of news coverage, and the elite nature of pub-
lic and political discourse, especially at higher levels of governance.
The state has a crucial role to play here in countering the high
323. A.T., Campaign Finance in India: Black Money Power, ECONOMIST (May 4, 2014),
http://www.economist.com/blogs/banyan/2014/05/campaign-finance-india.
324. ELECTORAL REFORMS REPORT, supra note 250. R
325. See Vaishnav, supra note 322. R
levels of distortion in public discourse, and the positive rights par-

ticipatory model can play a major role.
In terms of access, the state must play a crucial role in opening
up access to the public sphere and countering distortion by corpo-
rate and other elite groups. Finally, through oppositional entities,
the state can facilitate and empower social movements and
empower subaltern counterpublics. Fraser argues that in stratified
societies, social movements must play a significant role in reducing
“disparities in voice” among subaltern groups.326 As noted in Part
II, Fraser argues that subaltern counterpublics can allow for dis-
course by subordinated social groups to “invent and circulate
counterdiscourses, which in turn permit them to formulate opposi-
tional interpretations of their identities, interests, and needs.”327
Fraser suggests that these counterpublics can simultaneously serve
as spaces of “withdrawal and regroupment” as well as “bases and
training grounds for agitational activities directed toward wider
publics.”328 Greater coordination between state institutions and
civil society can facilitate social movements that link subaltern
counterpublics with other public spheres, elite discourse within
government and other fora, and with dominant discourse at higher
levels of the state.
C. Accountability
Jean Dreze and Amartya Sen distinguish between democratic
ideals, democratic institutions, and democratic practice, highlight-
ing the gap between democratic institutions and democratic prac-
tice in India, specifically focusing on barriers to effective
democratic practice.329 In particular, Dreze and Sen highlight key
obstacles or challenges to the three key foundations of democratic
practice: facility or functional democratic institutions, involvement
(informed public engagement with these institutions), and equity
(the level of fairness in the distribution of power within a particular
system). Dreze and Sen, and other scholars, have highlighted
some of the main problems with the state of representative democ-
racy in India.330 These include political corruption in government
and criminality in elections and government. In this Section, I ana-
326. See Fraser, supra note 3; see NANCY FRASER, TRANSNATIONALIZING THE PUBLIC SPHERE R
ON THE LEGITIMACY AND EFFICACY OF PUBLIC OPINION IN A POST-WESTPHALIAN WORLD
(2007).
327. Fraser, supra note 3. R
328. Id. at 68.
329. DRÈZE & SEN, supra note 17, at 246–48, 250–57, 259–61. R
330. See id. at 81–82, 86, 88–91, 94–99, 246–48, 250–51.
lyze two distinct conceptions of accountability in Indian politics.

The first is electoral accountability—the accountability of represen-
tative government to the electorate. The second is governance
accountability, which refers to the accountability of the state to
public opinion. Within India, structural challenges and problems
have undermined both conceptions of accountability.331
1. Electoral Accountability
Representative democracy provides limited opportunities for
meaningful individual participation in political processes and gov-
ernance beyond retrospective voting. India’s party system has con-
tinued to largely be a top-down system, with party leaders at the
national level controlling selection of parliamentary candidates in
elections. In conceptualizing the ideal approach to enhancing
participation in democratic processes, it is crucial to identify and
understand the nature of obstacles to making participation
meaningful.
India’s embrace of a right to information regime has largely
been driven by a desire to rein in the twin evils of criminalization
and corruption in politics by promoting informed voting and par-
ticipation. Enhancing the quality of public discourse and political
participation through the adoption of the positive rights par-
ticipatory model can help counter corruption and criminality in
politics in India. The role and influence of money has increased
dramatically in politics and elections in India, and in the 2014 elec-
tion, over 300 billion rupees (the equivalent of $5 billion dollars)
was spent in the national Lok Sabha elections in which Narendra
Modi’s BJP won a landslide victory at the polls.332 India’s political
system has also struggled with the challenges of the criminalization
of politics at levels that interfere with core notions of the rule of
law, responsiveness, and accountability.
In order to address the “influence gap” inherent in representa-
tive democracy, the participatory model can improve both the
331. The Indian model suggests that the right to information can be conceptualized
both in terms of speech (Article 19), as well as other core rights, including equality in
Article 14, and due process in Article 21. As S.P. Sathe has argued, this suggests two
dimensions of the right to information in India—a speech-based instrumental right to
facilitate expression and voting and an accountability-based conception that is actually
based on equality and due process that seeks to facilitate citizens’ ability to interact with
and ensure accountability from the state in its performance of its duties vis-à-vis citizens.
See DRÈZE & SEN, supra note 17, at 81–82, 86, 88–91, 94–99, 250–51. R
332. Sruthi Gottipati & Rajesh Kumar Singh, India Set to Challenge U.S. for Election-Spend-
ing Record, REUTERS (Mar. 9, 2014), http://in.reuters.com/article/2014/03/09/india-
election-spending-idINDEEA2804B20140309.
nature of the right to participation, and remedy the flaws within

the actual structure and operation of democratic systems them-
selves. The Supreme Court’s decisions in the right to information
cases directly sought to counter the problem of corruption and
criminality by providing voters with information about the anteced-
ents of candidates. However, one of the main problems facing
Indian democracy today is that political parties have successfully
evaded transparency regulations and reforms.333 The Election
Commission of India has also sought to regulate party transparency
and activity through promulgation of and subsequent changes to
the Model Code of Conduct, though the Central Information
Commission’s efforts to enforce party transparency have largely
been unsuccessful.
Closer scrutiny of party speech and party manifestos could also
help further enhance meaningful participation in Indian elections.
Because voters in modern democratic systems are largely limited to
retrospective voting based on past results, and vague agendas
offered by undifferentiated ideological parties, voters have a lim-
ited range of choices in elections, despite the number of parties
that participate in elections.334 In light of the lack of clarity and
distinctiveness in election manifestos, it can be difficult for voters
in elections to meaningfully distinguish between parties.335 Pro-
moting the right to information, as well as closer regulation of par-
ties, could offer voters real and meaningful choices in elections.
2. Governance Accountability: Facilitating Countervailing

Power
As Fraser argues, one major weakness of deliberative democ-
racy’s conception of the public sphere is that it is based on a strict
separation between the public sphere and state. Fraser suggests
that “any conception of the public sphere that requires a sharp
separation between civil society and the state will be unable to
imagine the forms of self-management, inter-public coordination,
and political accountability that are essential to a democratic and
egalitarian society.”336 As noted earlier, patronage and clientelist
politics have undermined the efficacy of government programs in
India.337 The positive rights participatory model can improve gov-
333. See Sastry, supra note 130. R

334. See Vaishnav, supra note 322. R
335. See Heller, Democratic Deepening, supra note 265. R
337. See id.
ernance outcomes, by empowering civil society groups to play a

more vigilant role in monitoring and scrutinizing government per-
formance in such areas as the provision of health, food, and educa-
tion. The Indian Supreme Court’s right to information
jurisprudence can thus be conceived of as a mechanism for struc-
tural reform and critiques of the state and electoral processes. At a
basic level, the right to information provides a crucial check on the
systemic corruption and criminality that exists in India in terms of
the unchecked power of political parties and candidates.
Citing John Kenneth Galbraith, Dreze and Sen argue that the
right to information represents a form of “countervailing power”
that can be wielded vis-à-vis state institutions that are besieged by
criminality and/or corruption.338 According to Dreze and Sen,
“the remedy must lie in developing and reinforcing the counter-
vailing institutions that can give greater ‘voice’ to those who have a
stake in the efficient provision of public services.”339 The theory of
countervailing power posits that countervailing institutions can
check and moderate other institutions, and this can help promote
greater levels of accountability.340
The right to information, along with active initiatives by courts,
commissions, and other state actors all help facilitate and empower
social movements that help check corruption, malgovernance, and
maladministration, as illustrated by the MKSS’s success in Rajas-
than.341 The state can play a key role in helping to cultivate,
develop, and support civil society, which can serve as a form of
countervailing power against the state. In elections, the right to
information in India has been wielded effectively by civil society
groups, lawyers, and other actors as a check against government
corruption, the criminality of candidates, and arbitrariness and
maladministration.342
CONCLUSION: TOWARDS PARTICIPATORY EQUILIBRIUM

Deliberative democracy has become increasingly important as a
mechanism for opinion formation within contemporary liberal
representative democracy.343 In line with this shift, constitutional
339. Id.
340. Id.
341. See Jenkins & Goetz, supra note 130. R
342. See Sastry, supra note 130 (describing partial successes of right to information R
movement).
343. See HABERMAS, Three Normative Models, supra note 24; cf. POST, CITIZENS DIVIDED, R
supra note 1. R
jurisprudence in the United States and some polities have recog-

nized conceptions of the right to speech and expression that are
predicated on protecting the autonomy of public discourse. How-
ever, as these conceptions of autonomy present significant obsta-
cles to interventions by the state and civil society aimed at
enhancing effective participation.
India’s positive-rights participatory model of speech offers an
alternative approach to rival conceptions of speech in liberal
democracy for enhancing the ability of individuals and groups to
participate meaningfully in elections, public discourse, and govern-
ance. Moving forward, reformers must find a way of improving the
efficacy of participation in democracies where the impact of retro-
spective voting is limited. India’s right to information regime sug-
gests that the state can play a critical role in enhancing
participation at all levels of government. This can include mea-
sures to improve the quality of public discourse by increasing
access to information to voters and facilitating higher degrees of
transparency and accountability of parties through the Model
Code of Conduct.
This Article has illustrated that liberal democracy theory fails to
grapple with the core problems facing most democracies today.
Chief among these are the social and economic inequalities within
society that inhibit mass participation and the structural corrup-
tion and distortion within both public and electoral discourse and
routine governance in representative democracy.344 These
problems pose a challenge to democracies worldwide. Concep-
tions of democracy within liberal democratic theory fail to address
how to reform public discourse so as to enhance the responsive-
ness and accountability of representative democracy.345
The Indian positive-rights participatory model addresses these
problems through a regime that embraces an activist state role in
the regulation of speech and discourse that can help maintain the
ideal levels of internal and external autonomy and access in the
public sphere. The Indian model can arguably help reform the
deeply distorted nature of political, media, and electoral discourse
by narrowing the gap between elite and mass discourse, and
restricting the influence of corporate and criminal power in Indian
politics. Additionally, the Indian model can thus help bolster
344. See generally Fraser, supra note 3. R

345. See POST, CITIZENS DIVIDED, supra note 1 (arguing for the compelling interest of R
electoral integrity which is based on alignment between representative and discursive
democracy).
informed voting, and expand the scope and power of civil society
institutions and social movements by leveling the playing field
through equalized informational access. Furthermore, opposi-
tional state actors can help bolster social movements and civil soci-
ety groups with the resources necessary to promote accountability
in elections and governance.346
Effectuating a positive-rights participatory model in developing
democracies like India can help the state achieve what this Article
refers to as “participatory equilibrium”—the proper balance
between the role of the state, and the role of civil society in effectu-
ating democratic participation.347 The positive-rights participatory
model can help enhance participation by reforming discursive
democracy by increasing autonomy and access to the public
sphere, “scaling up” grassroots participation to magnify the impact
of social movements and mass participation, and “pushing down”
national governance to the local level through participatory
democracy reforms.348
Challenges still remain to the full effectuation of participatory
parity, and deeply embedded social and economic inequality con-
strains the possibility of democratization in India. Implementation
of the right to information and transparency regimes must be
accompanied by efforts by the state and civil society to ameliorate
social and economic inequality to allow for meaningful participa-
tion in governance. In addition, the Supreme Court, political par-
ties, government agencies, and other institutions continue to resist
compliance with the right to information regime, and structural
problems like corruption, criminality, and patronage politics have
arguably narrowed the scope of actual differences in the agendas
of parties. These prevailing issues suggest the need for bolstering
“internal accountability” institutions that enforce anti-corruption
and anti-criminality norms within the political structure such as the
Lokpal, as well as bolstering civil society groups and social move-
346. See JEAN COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY 19
(Thomas McCarthy ed., 1992); see also Mark Tushnet, The Constitution of Civil Society, 75
CHI.-KENT L. REV. 379 (2000). Cf. JONATHAN ISHAM, THOMAS KELLY, SUNDER RAMASWAMY
SOCIAL CAPITAL AND ECONOMIC DEVELOPMENT: WELL-BEING IN DEVELOPING COUNTRIES
(2002).
347. Participatory equilibrium is a concept distinct from the concept of “democratic
equilibrium” developed by Adam Przeworski. See generally Adam Przeworski, Democracy as
an Equilibrium, 123 PUBLIC CHOICE 253 (2005).
348. See Heather Gerken, Federalism as the New Nationalism: An Overview, 123 YALE L.J.
1626 (2013) (proposing reforms that push governance and decision-making process to the
state and local level); Archon Fung & Erik Olin Wright, Deepening Democracy: Innovations in
Empowered Participatory Governance, 29 POL. & SOC’Y 5 (2001).
ments that can provide “external accountability” checks to ensure

that political actors are held accountable in elections and
governance.349
349. See generally Mitu Sengupta, Anna Hazare’s Anti-Corruption Movement and the Limits of
Mass Mobilization in India, 13 SOCIAL MOVEMENT STUD. 406, 406–08 (2014) (discussing
Hazare’s social movement to establish a Lokpal in India).

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txt unknown Seq: 1 11-JAN-16 16:01

INDIA’S PARTICIPATORY MODEL: THE RIGHT TO

This Article analyzes the development and evolution of the con-

378 The Geo. Wash. Int’l L. Rev. [Vol. 48

are based on a contextual understanding of autonomy that ignores

2016] India’s Participatory Model 379

on a distinct conception of speech in which the state and other

380 The Geo. Wash. Int’l L. Rev. [Vol. 48

tionship between the state and civil society, understandings of elite

2016] India’s Participatory Model 381

can help counteract the high level of distortion in developing

382 The Geo. Wash. Int’l L. Rev. [Vol. 48

ticipatory model of speech based on insights from the Indian right

I. PARTICIPATION AND SPEECH IN LIBERAL DEMOCRACY THEORY

2016] India’s Participatory Model 383

A. Pluralism and Representative Democracy

(highlighting how social and economic inequality undermines participatory parity in

384 The Geo. Wash. Int’l L. Rev. [Vol. 48

In the 1950s, scholars including Robert Dahl and David Truman

1. The Proceduralist Model of Popular Sovereignty

2016] India’s Participatory Model 385

argues that “all political power derives from the communicative

procedural concept of democracy); JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE

386 The Geo. Wash. Int’l L. Rev. [Vol. 48

In contrast to the pluralist model that is based on aggregation of

2016] India’s Participatory Model 387

erative and participatory democracy traditions.52 Civic

388 The Geo. Wash. Int’l L. Rev. [Vol. 48

II. CRITIQUING LIBERAL DEMOCRACY: DELIBERATIVE DEMOCRACY

As illustrated in the foregoing Section, one of the core elements

A. Autonomy and the Public Sphere

2016] India’s Participatory Model 389

guide decision making by legislative bodies and the administrative/

390 The Geo. Wash. Int’l L. Rev. [Vol. 48

autonomy that envisions some degree of independence and separa-

1. Domination and Justice: The Problem of “Voice” in

2016] India’s Participatory Model 391

actions.”80 The concept of justice, within social welfare states, must

80. Id. at 420.

392 The Geo. Wash. Int’l L. Rev. [Vol. 48

2. The Bracketing of Inequality

88. Id. at 63–65.

2016] India’s Participatory Model 393

altern groups are excluded from media framing.96 This directly

394 The Geo. Wash. Int’l L. Rev. [Vol. 48

B. Inclusiveness and Access in the Public Sphere

101. Fraser, supra note 3, at 66. R

2016] India’s Participatory Model 395

for a more pluralistic understanding of alternate publics in which

396 The Geo. Wash. Int’l L. Rev. [Vol. 48

problem of accountability in liberal democracy.114 Underlying the

2016] India’s Participatory Model 397

III. THE RIGHT TO INFORMATION IN ELECTION LAW IN INDIA

122. Representation of the People Act, No. 43 of 1951, INDIA CODE.

398 The Geo. Wash. Int’l L. Rev. [Vol. 48

Article 19 of the Indian Constitution as not providing absolute pro-

2016] India’s Participatory Model 399

for election and political reforms that were aimed at eliminating