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The Supreme Court’s Haryana Panchayati Raj Judgment Is Not Backed By The Constitution

By Professor  

On 10 December 2015, when the world was marking Human Rights Day, the Supreme Court of India delivered its judgment in the case of Rajbala vs the State of Haryana. The court was ruling on the validity of amendments to the Haryana Panchayati Raj Act of 1994, introduced earlier this year by the state government. The amendments disqualify those who lack formal education, have no functioning toilet in their home and are in debt, from contesting Panchayat elections. However, the apex court upheld the amendments, delivering a blow to several principles enshrined in the Constitution and disenfranchising a significant part of the population of the state.

There are many grounds on which this judgment can be criticised. For one, it ignores that the right to vote cannot be separated from the right to contest elections and that if the legislature indeed makes a law restricting or regulating not how the electoral process ought to be carried out but who is entitled to participate in it, then the standard of scrutiny should be higher.

 

For another, the court remains blind to the socio-economic realities of the people, and to the questions of access and opportunity to education and sanitation and rural indebtedness. The decision, which debars at least two-thirds of electorate from contesting panchayat elections by imposing minimum educational criteria, disproportionately affects its most marginalised and most vulnerable citizens. The court also leaves out the fact that historically, the privilege of education has belonged only to the upper caste, and rarely to women, Dalits and other marginalised groups. The Indian Supreme Court, which already has a poor history of understanding the contours of substantive equality especially for women and the most marginalised, never acknowledges that discrimination is not only in words, but also in effect. The “last refuge of the oppressed and the bewildered” condescendingly states that “if people still do not have a toilet, it is not because of their poverty but because of their lacking the requisite will.” It ignores all data that shows how schools are still also a breeding ground for caste-based discrimination, with lower caste students often asked to sit separately in the verandah outside the classroom, and forced to clean toilets. It does recognise that the impact of this judgment will mean that 68 percent of Scheduled Caste women, 41 percent of Scheduled Caste men and over 50 percent of all women in Haryana will be barred from contesting elections. It recognises the numbers and ignores the same.

The faults of the judgment, however, do not end with its classist stance. Not only is the judgment faulty, it also lacks basis in constitutional philosophy.

 The judgment suggests that the court’s understanding and treatment of education is a significant departure from the history and evolution of the right to education. According to Article 45 of the Indian constitution, it was the duty of the state to provide free and compulsory primary education. In 2002, this duty was transformed to a corresponding right in the form of introduction of Article 21A by the 86th Amendment to the constitution. Subsequently, in 2009, the parliament enacted the Right of Free and Compulsory Education Act (RTE), which highlighted the importance of primary education, and reiterated the right of every citizen to claim it of the government.

This change, of defining education as more than a duty of the state, was hugely important. It acknowledged that even if the state were to duly provide education, every citizen was not able to access it. It reiterated the existence of large-scale illiteracy and the absence of basic education. In other words, it confirmed that merely the presence of schools or a government framework for education was not guaranteeing an educated and literate citizenry.

For the Supreme Court to then use education as a means of determining candidacy goes against the very grain of the RTE; it shifts the burden of the state’s responsibility to the individual, and simultaneously punishes those who suffer the most due to unequal access (such as women, Dalits and the economically backward) by denying them an equal opportunity to contest elections.

From a reading of constitutional provisions, it is also clear that additional qualification to contest for membership of parliament or the legislative assembly can only be prescribed by the parliament. The state legislature does not have the power to prescribe any qualification, nor is there any power to prescribe a qualification in Article 243F, which articulates the grounds for “disqualification” of membership to serve on the Panchayat. This is evocative of one of the stated objectives of the 73rd Amendment, which notes that the object of constituting the Panchayati Raj institutions is to remedy the “insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women.” The court in Rajbala remains blissfully oblivious to the distinction between qualification and disqualification to contest election and brushes aside the distinction as one being purely semantic. Qualification must necessarily precede disqualification because disqualification has the effect of removing or disabling someone who has already been qualified to exercise a particular right. But can education be a qualification to hold public office? The general tone of constitutional debates in the Assembly suggests that education was not considered to be an absolute necessity to run the country. For example, Constituent Assembly member Professor KT Shah had suggested that there should be educational qualification prescribed for ministers, to which BR Ambedkar, the principal architect of the constitution, had responded that it is something best left to the legislature. Another member, the freedom fighter Mahavir Tyagi, too, had intervened:

“The majority in India are illiterate persons. Why should they be denied their share in the administration of the country? I wonder, why should literacy be considered as the supreme achievement of men. Why should it be made as the sole criterion for entrusting the governance of a country to a person, and why Art, Industry, Mechanics, Physique or Beauty be not chosen as a better criterion, Ranjit Singh was not literate. Shivaji was not literate. Akbar was not much of a literate. But all of them were administering their States very well. I submit. Sir, that we should not attach too much importance to literacy.”

Again, when responding to the freedom fighter and member of the assembly Purnima Banerji on the issue of property-based qualification, Ambedkar had remarked that there was “certainly no intention that the property qualification should be included as a necessary condition for candidates.

Precedents, and sometimes bad precedents, set by larger benches of the judiciary inextricably bind it. The Rajbala judgment, too, draws on a 2003 judgment of the Supreme Court: Javed vs State of Haryana, where another stipulation of the Haryana Panchayati Raj Act of 1994 was challenged. The stipulation stated that only citizens with two children or fewer may contest panchayat elections. This was done as a means of encouraging citizens to avail the family welfare programme offered by the state and to incentivise family planning.

 

However, the Javed judgment itself struck a terrible blow to the equality guaranteed by the Article 14 of the constitution, which includes equality before law and equal protection of law. The article permits classification only if it is reasonable, for the purpose of achieving specific ends, and never “arbitrary, artificial or evasive.” This means that in order to be reasonable, first, the classification must be founded on intelligible differentia, which distinguishes persons or things that are grouped together (in this case, those with two or fewer children) from others left out from the group (persons who have more than two children). Secondly, the differentia must have a rational relation (often called the rational nexus test) to the objective that the classification seeks to achieve. When there is no reasonable basis for this classification, the law making such a classification would, under the provisions of Article 14, be declared discriminatory.

In the Javed case, the court held that the classification was indeed founded on intelligible differentia, and that the object of the law was “to create a disincentive in keeping with the family welfare programme and policy through a disqualification for a panchayat office, which at any rate was only a statutory right.” The judgment did not address the fact that the number of offsprings has no bearing on any candidate’s ability to govern. Simply put, the judgment effectively stated that in the case of elections, the objective for disqualifying candidates might be considered “reasonable” even if it was not at all related to the objective of the conducting elections themselves.

The ghost of Javed haunts Rajbala as well. On the constitutional platter of equality and non-discrimination, the Supreme Court was called upon to examine whether creating two classes of people—those who were “educated,” had access to toilets, and were free of debt; and those who were not—had any rational nexus to the objective of a panchayat candidacy. The court tried to link education with competence to effectively discharge various duties of the elected representatives of the Panchayat. The court justified this exclusion to a country where the “lexicon of democratic literacy” thrives on largely non-functional schools and caste, class and gender-ridden exclusion. In a country where rural poverty rates are among the highest in the world, the court further justified the logic of debt-based disqualification by stating that election is an expensive affair, and that a debt-ridden person would not, in any case, be eligible to contest.

 

In 2006, an eerily similar case was brought before the Supreme Court of Pakistan. Four years previously, in 2002, then president Pervez Musharraf had made changes to the Constitution and brought a requirement of candidates possessing a bachelor’s degree to contest the national assembly elections, effectively disenfranchising 97 percent of the country. However, the Supreme Court of Pakistan justified the promulgation of the law and refrained from evaluating how it stepped into the citizens’ fundamental right to contest election. In the language of the court, the law was upheld since it was a step towards “transformation of political culture.” However, in 2008, a larger bench reversed the decision. It held the amendment to be in dissonance with the Constitution amongst other grounds, and on failing to satisfy the twin test of intelligible differentia and reasonable nexus. The judgment found the “classification based on educational qualification for contesting election is unreasonable” and that ruling out candidates was “against the spirit of democracy.”

 

In an earlier case on election symbols, the dissenting Justice Chelameswarwho delivered the Rajbala judgment—had noted, “Electoral rights and the electoral process, are the source and product of the constitutional scheme of establishing a democratic republic. If a principle laid down by the Supreme Court is demonstrably inconsistent with the scheme of the constitution it becomes the duty of the Supreme Court to correct the wrong principle laid down.” In the Rajbala case, the court lost an opportunity to correct Javed by at the least referring the matter to a larger bench. In doing so, the court willfully ignored that social condition and financial capability are a result of a structural inequality.

A republican and democratic form of government is the basic structure of the Indian Constitution. The principle of universal adult suffrage is embedded in Articles 325 and 326 of the Constitution. The right to be chosen is enshrined in Articles 84 (Parliament), 173 (Legislative Assembly) and 243 (C) (Composition of Panchayats). Increasing literacy cannot be a rational justification for introducing educational disqualification in the matter of exercising one’s civil and political rights.

Haryana is not the first state to impose educational qualification as a condition to contest local election and after Rajbala, it is unlikely that it will be the last. Last year, Rajasthan introduced similar restrictions, amending the law by passing an ordinance just days before the local election. Earlier this year, Bihar followed suit and introduced amendments disqualifying candidates who did not have toilets in their home from contesting panchayat and urban local body elections in the state.

While the Supreme Court of India rose to the stature of the supreme court of Indians in the post-Emergency judicial eighties, the structural adjustment of the court to align itself with the political society in the nineties have betrayed a conservative turn that has resulted in a series of disappointing judgments. Rajbala vs State is only the latest addition to this long list. The objective and purpose of election is surely to enable people to take decisions about their own destiny and not to create an exclusionary structure. A deliberative democracy, by nature, must not be exclusionary. The court should see even though justice may be blind.