The legislative design of the Bill did not treat women’s reservation as an isolated reform.  Instead, it situated it within a broader framework involving the redrawing of electoral constituencies and a potential expansion of parliamentary seats. This coupling became the central point of contestation during parliamentary debates, as several political actors expressed concern that delimitation could significantly alter the balance of political representation among states. Delimitation, as envisaged under Articles 82 and 170 of the Constitution, is intended to ensure that representation in legislative bodies reflects population changes; however, in the Indian context, this exercise has been suspended for decades through constitutional amendments designed to incentivize population control.

The proposed framework for delimitation further intensified these concerns by introducing substantive changes to the constitutional scheme. It envisages advancing implementation by relying on the 2011 Census instead of waiting for a fresh post-2026 enumeration, thereby departing from the original statutory design that linked reservation to a future census and subsequent delimitation. It also contemplates a substantial expansion in the strength of the Lok Sabha from 543 seats to approximately 800-816 seats, with nearly 273 seats reserved for women, reshaping the scale of parliamentary representation. More significantly, it enables Parliament to determine, through ordinary legislation, the timing and basis of delimitation, thereby shifting what was historically conceived as a constitutionally anchored and quasi-independent process into the domain of legislative discretion. Such a move has been criticised as potentially altering the constitutional compact by permitting the political executive to exercise greater influence over the architecture of representation.

These issues must be seen in light of the Constitution’s separation of powers as here Lok Sabha representation is not only demographic, but also balances state influence in the Union, and such major seat changes disrupt this balance. Population-based redistribution, especially using old census data, risks unfairly penalizing states that have controlled growth, undermining federal fairness. Moving delimitation decisions to ordinary legislation could erode the constitutional safeguards meant to protect the process from politics.

In this context, the position of the Supreme Court of India in Kishorchandra Chhanganlal Rathod v State of Gujarat, clarified that orders of the Delimitation Commission are not absolutely immune from judicial review, particularly where there is a demonstrable violation of constitutional principles. While reaffirming the need for finality in electoral processes, the Court emphasized that such finality cannot override the supremacy of the Constitution. This position introduces a narrow but critical avenue for judicial scrutiny, ensuring that delimitation exercises do not operate in a constitutional vacuum.

The controversy deepens due to a departure from the original constitutional design, which envisages delimitation as a neutral, expert-driven exercise conducted after each census and insulated from political influence. The Supreme Court of India in S R Bommai v Union of India affirmed that federalism and the balance of representation form part of the Constitution’s basic structure. By allowing reliance on earlier census data and granting Parliament discretion over implementation timelines, the proposed framework risks undermining this balance, exposing a constitutionally insulated process to potential political influence.

The failure of the Women’s Reservation Bill does not signify a rejection of gender equality, but instead reveals deeper institutional concerns surrounding federal balance, electoral fairness, and the redistribution of political power. By linking women’s representation with delimitation, a broadly supported reform became entangled in a far more complex constitutional question, making consensus difficult. This moment marks a critical juncture in India’s and such countries’ constitutional trajectory, underscoring that meaningful representation must rest not only on inclusion but also on the structural integrity of democratic institutions. A calibrated approach that separates gender justice from delimitation can better preserve equality, federalism, and democratic legitimacy.

Contested Claims

Protestors have expressed confusion over Sunak’s claims, saying that their protests have been entirely peaceful. Further, the groups have expressed gratitude for the police, who have helped control the occasional bad actor who infiltrates a march. They understand the Prime Minister’s speech to be the “scrambling” of an unpopular government ahead of a major election.

Regardless of the veracity of Sunak’s claims, government policy is shifting. London Police have blocked pro-Palestinian demonstrations in the city. UK Communities Secretary Michael Gove recently introduced a new expansive definition of “extremist” – the spearhead of an effort to ban certain advocacy groups from public life. The new definition is projected to include many large Muslim coalitions within the country, and places them in a category of proscription alongside far-right nationalist groups.

The Right to Dissent

The government’s formal understanding of ceasefire protest groups as extremist forbids them from holding meetings with government officials, not to mention deprecates their stated intentions. The redefinition is a clear attempt to dissuade protestors from exercising their right to speech, and figures as the latest effort by the UK government to restrict and criminalize protest activity.

Political speech and assembly are broadly, but not absolutely, protected under international human rights law. Governments retain a limited right to suspend or proscribe protests in certain circumstances – for instance, during public health emergencies, or if they are certain to result in widespread property destruction.

Human rights organisations assert that UK anti-protest measures have long constituted a decisive breach of human rights. A full argument for whether the most recent measures are legally justified, which takes that history into account, would be far too intricate for this blog post. However, a short list of elements important to that discussion may include the following:

• The UK government would need to demonstrate that the ceasefire protests indeed advocate for national, racial, or religious hatreds that constitute incitement to discrimination or hostility.
• Specific to the contentions of extremism, they would need to prove that their new definitions of “extremist” are not so broad as to curtail or discourage peaceful assembly.
• The UK government would also need to prove that the mechanisms for redress are sufficiently speedy, such that delays do not nullify the importance of the contested speech.

Illuminating the first point, a UK Adviser on Social Cohesion has called the designation of protestors as Islamist extremists outrageous, noting that: “Some [protestors] are not even pro-Palestinian people, just anti-war. There are clearly Jewish people there, there’s a whole range of people there, and to try to frame these demonstrations as Islamist extremism is completely far-fetched and untrue.”

Regarding the second, the government’s independent watchdog for terrorism legislation has described the new definition of extremism as “… a move away from people who are doing bad things, towards people who think bad things or have a bad ideology.” Compounding the risk of arbitrary enforcement, the conservative government has a history of censuring Muslim advocacy groups without justification.

Finally, the government is internally aware that such sweeping actions come with a significant risk of legal challenge, but have yet to publicize an appeals mechanism for advocacy groups that fall afoul of the new definition.

Every day, the civilian death toll in Gaza ticks upwards, as Israel bombs refugee camps, hospitals, and bread lines. The UK is one of a few global powers that has the cache to influence Israel’s assault on Gaza, and a shift in its foreign policy could have the ability to save countless lives. Protest is critical at this juncture, and the UK’s cynical attempt to suppress it belies a lack of concern for the humanitarian crisis at hand, let alone a lack of respect for the right to protest.

Internationally, the right to form political parties is a relatively new right. It is not included in the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights (ICCPR). As Chilton and Versteeg note, in 1946 a mere 8 percent of constitutions included the right to form political parties, but by 2016 that number had grown to 65 percent. Since the right is relatively novel, its contours are less defined and ripe for interpretation by specific countries.

The ECP’s order

On 22 December 2023, the ECP invoked the Election Act 2017 (the Act) to declare that PTI was ineligible to obtain the election symbol they had applied for. The ECP alleged that the PTI failed to comply with section 209 of the Act, which required the PTI to, “within seven days from completion of intra party elections”, submit a certificate to the ECP confirming that elections were held in accordance with PTI’s constitution. The ECP made its order on the basis that no evidence was provided that a Federal Election Commission was appointed for intra-party elections under PTI’s Constitution.

The right to vote: intra-party or national?

Article 17 of the Constitution of the Islamic Republic of Pakistan provides every citizen the right to form or be a member of a political party. For the SCP, if intra-party elections were not held in a party, it rendered that party “a mere name without meaning” [26]. It also violated a person’s right to form or be a member of a political party, which includes the ability to put oneself forward as a candidate and vote for candidates of their choice [31]. The SCP, quoting judgments of various US States, held that the right to freely choose candidates for party office is “as valuable” as a right to vote for them after they are chosen [54].

The SCP’s reasoning introduces a tension between two related rights. The first is the right to vote freely for a candidate of one’s choice at a national level. Any restrictions on that right strike “at the heart of representative government” (Justice Shah at Elahi v ECP [1]). The second is the right to be a member of a party, which, according to the SCP, must also cover the ability to vote for party candidates. While holding these rights to be equally “valuable”, the SCP appears to have disregarded the national position. The fact that PTI has lost its electoral symbol makes the elections inaccessible to voters who cannot read. As the Peshawar High Court noted, the use of a symbol has a “unifying effect” and ultimately helps in the establishment of a democracy [23].

A historical construction?

The SCP also noted the ECP was a constitutional body which had duties confirmed by Workers’ Party Pakistan v Federation of Pakistan [39], such as the duty of “regulating intra-party affairs”. That duty was set out against the backdrop of the previous version of Article 17 of the Constitution, which had required that “every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders” [44]. The duty of PTI to submit a certificate under section 209 of the Act could only be fulfilled after the conclusion of intra-party elections [55]. Against that, the SCP held there was no evidence provided by counsel to show intra-party elections were held, noting the absence of nomination forms [28].

The SCP gave questionable weight to repealed laws on ‘intra-party’ elections. The present laws were enacted by a democratically elected Parliament and, as the SCP noted, “must be abided by” [43]. Bearing Pakistan’s fragile experience with democracy in mind, the decision also sets two worrying precedents. First, the ECP can make inquiries about the way intra-party elections are held. This means that parties can be deprived of their electoral symbol for mere procedural errors, which harms the ability of voters who cannot read to express their choices. Second, the SCP can, beyond assessing errors of law, make a finding of fact as to whether an election was held at all. The SCP’s appeal to repealed law and its fact-finding approach is difficult to reconcile with the decision of the Peshawar High Court, which found that elections did take place (“widely reported in print electronic media not only in Pakistan but even internationally” [8]) and that it was not for the ECP to question their legitimacy [19].

In a nation where no prime minister has yet served their full five-year term, another tool has emerged to take away political choice from the people.

A democratic society, in theory, provides a fertile ground for the effective protection and realisation of human rights. In order to build such a democratic society, the right to vote – based on the free expression of the will of the electorate – must be guaranteed by law. Article 25 of ICCPR plays a fundamental role in ensuring governments are elected based on citizens’ will and consent. In contradiction of this, the Draft law confers on the President the exclusive right to choose a Governor and Deputy Governor. Although Article 10(2) mentions a role for the Local People’s Representative Council in providing opinions or recommendations, such involvement is arguably futile, as only the President has the final say on appointments. Such a violation of political rights under the ICCPR not only eliminates public participation in these elections, but further presents the President with a pandora’s box in which he may install his crony within local government. Thus, the Governor is liable to act according to the President’s needs, and not the people’s aspirations.

Although the Human Rights Committee in Mazon Costa v Spain emphasised that Article 25 of ICCPR does not impose a specific political model or structure, in its Concluding Observations on Swaziland, the Committee highlighted that the concentration of power into one branch is incompatible with Article 25. The withdrawal of the right to vote from the people to the President, without any meaningful intervention from the legislative branch, indicates such concentration of power to the executive. Hence, it is a palpable violation of Article 25 of ICCPR.

The exercise of the rights under Article 25 of the ICCPR may indeed be excluded on grounds which are established by law and which are objective and reasonable. However, the criteria of objectivity and reasonableness are not clear, as they have been decided thus far on case-by-case basis. The Indonesian House of Representatives presented two main reasons for its proposal in the Draft, namely, the expense of elections and the need to increase central government’s effective management of many national assets in Jakarta. While the high cost of elections is not an exclusive problem of Jakarta, the protection of national assets can still be achieved by coordination between central and local government. Therefore, it is clear that the Draft manifestly breaches the rights to participate in public affairs and to vote.

Indonesia has a clear historic example of how the designation of Governor by the President has previously resulted in manipulations of democracy, violations of economic and social rights by means of corruption, as well as the exploitation of local resources during New Order Era. Under Act. No. 5 of 1974, President Suharto (New Order Era) specified the hierarchy of local government and appointed them either directly or through the Ministry of Home Affairs. Hence, the appointed Governor served more as agent of central government rather than the independent leader of an autonomous local government. In the first parliamentary election under Suharto’s rule in 1971, these designated Governors, along with military and civilian bureaucrats, were required to persuade their subordinates and local voters to vote for Golkar (also of President Suharto’s Party). Consequently, the rights to fair election, freedom of expression, and to information were systematically abused. Citizens were accordingly forced to vote for Golkar, while the opposition and its aspirations were suppressed, facilitated by local elites also designated by the President. Through these elites, the President was capable of the mass exploitation of local natural and human resources, producing environmental degradation that still persists today.

These consequences are amplified by the fact that Jakarta – as the current capital of Indonesia – retains a significant role in politics, the economy, and demography. As the most populous city, the decisions carried out by its local government affect 10.68 million inhabitants. Precisely because of the scale of the deprivation of rights proposed by the House of Representative, it is critical that we continue to scrutinise Indonesia’s putative democratic values and civil rights.

The Court held that traditional councils were not democratically elected and consequently did not have the power to impose taxes, levies, duties, and surcharges. The Court also concluded that the imposed levy was contrary to customary law because it was not voluntary or enacted with consent. This judgment sheds light on the role of traditional authorities in a democratic South Africa, highlighting that they do not have the power to assume the duties and responsibilities of a democratically elected government. The judgment also indicates the importance of consultation under customary law.

The case concerned the constitutionality of section 25 of the Act. According to section 25(1), traditional councils, on the approval of the Provincial Premier, have the power to levy a traditional council rate to all taxpayers living under the concerned traditional community. Section 25(2) provides that the levy of traditional council rates shall be made known by the Premier through notice in the Government Gazette and shall enter into force from the date mentioned in such notice. In section 25(3), the Act provides that a taxpayer who fails to pay the traditional council levy may be dealt with in accordance with the customary laws of the traditional community concerned.

The applicants in the case reside within traditional communities in Limpopo and had been subjected to paying levies under the provisions in the Act. They argued that the levies were compulsory and imposed without consultation with community members. These levies were charged for different things, including for the report of a death in a family, relocation to another village, the allocation of a residential stand, or the transfer of property ownership, among others. Significantly, the applicants also argued that in cases where they failed to pay the levy, traditional authorities denied them essential services, including the installation of toilets, access to grazing fields, and assistance with the burial of loved ones.

At the core of the case was whether section 25 of the Act was inconsistent with sections 228 and 229 of the Constitution, which deal with provincial taxes and municipal fiscal powers and functions, respectively. In this regard, the Court considered the meaning of the word ‘levy’ under section 25 of the Act read together with section 77 of the Constitution, which regulates bills that involve public money, and held that levies were equivalent to taxes [18]. However, because traditional councils were not democratically elected, they did not have the power to impose taxes, levies, duties, and surcharges.

Another important issue at stake was whether imposed or compulsory levies are permissible under customary law. These levies are collected with the aim of assisting the institutions of traditional leadership in running their affairs [25]. The Court held that, in terms of customary law, the contributions to traditional authorities must be made voluntarily and subject to consultation and agreement with community members [22]. In this case, the traditional authorities enforced the payment of levies by withholding certain services – they were not voluntary. Consequently, customary law and the Constitution did not support the imposition of compulsory levies or taxes by traditional authorities [30].

In sum, the judgment states that traditional authorities do not have the power to impose involuntary levies under customary law. But not only that: it also states that the legislature is also not constitutionally permitted to promulgate legislation that grants traditional authorities the power to impose involuntary levies. This decision highlights the importance of consultation within customary law and promotes traditional governance through processes that are participatory in nature. The High Court, through the lens of customary law, adds to the jurisprudence of the Constitutional Court on public participation within South Africa’s constitutional democracy. While the implementation of the judgement is likely to present a challenge where complicated relationships between traditional councils and community members already exist, the significance of this decision cannot be gainsaid.

Want to learn more?

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• Depathologising Gender Identity at the United Nations: A Call to South Africa