India's Participatory Model: The Right to Information in Election Law

Abstract

Among liberal democracies, India stands out as a polity that broadly defines the right to free speech to include the right to information in elections, and has been at the forefront of innovative transparency reforms. Although the United States is often represented as an ideal democracy, mass participation in the U.S. is limited by the particular nature of its representative democracy, and negative rights-based campaign finance reform regime that limits opportunities for meaningful participation. Drawing on insights from India, this article advances a “positive rights participatory model” of speech based on the Indian Supreme Court’s right to information jurisprudence, an active role of the state in facilitating participation, and strong oppositional state institutions that check state power and foster robust civil society and social movements. The article critically challenges conceptions of the public sphere in contemporary liberal democracy as a framework for analyzing the Indian case. I argue that we must analyze the particular constitutional and political context of Indian democracy in order to understand India’s right to information regime as a distinct participatory model for speech. I then explore how Indian model addresses the shortcomings of liberal democracy, by drawing on the literatures in state-society and democratic participation. I conclude by suggesting that the positive rights participatory model can achieve “participatory equilibrium” between state and civil society in promoting autonomy, access, and accountability.

Keywords: Right to Information, Positive Rights, India, Indian Constitution, Supreme Court of India, Election Law, Campaign Finance Reform, Citizens United, Free Speech, Liberal Democracy, Autonomy, Deliberative Democracy, Discursive Democracy, Free Speech, Habermas, Fraser, Social Movements