By Venkatesh Nayak*
On December 10, the Supreme Court of India pronounced its judgement on a challenge to a set of recent amendments to the law relating to Panchayati Raj institutions in the north Indian State of Haryana. In the matter of Rajbala & Ors vs State of Haryana & Ors. [Writ Petition (Civil) 671/2015] the Apex Court has held that the action of the State Legislature of Haryana of introducing three grounds for disqualifying voters from contesting elections to the Panchayats at all 3 levels (village, taluka/tehsil and district) on the grounds of:
- not possessing minimum educational qualifications;
- non-payment of electricity Bills or dues to cooperative banks; and
- (believe it or not)not having a toilet in their homes.
The Apex Court has held that these disqualifications do not violate the right to equality guaranteed by Article 14 of the Constitution and they are not unreasonable or arbitrary. One of the judges on the Bench which delivered the judgement in a separate concurring opinion said that these disqualifications have a reasonable nexus with the objectives sought to be achieved by making the changes in the law and that such disqualifications must be applicable across the country and not only in the State of Haryana.
What was the core issue?
The Petitioners described as ‘political activists’ by the Apex Court, recently challenged the constitutionality of an amendment made by the Haryana State Legislature in the Panchayati Raj Act, 1994 (PR Act). Earlier this year the State Government of Haryana secured legislative approval for a set of new grounds on which voters in Haryana will be disqualified from contesting elections to the offices of the Sarpanch (elected village headman) and Panchas (other elected members of the Panchayat) at all three levels of the Panchayati Raj structure.
The Petitioners challenged three of these disqualifications listed above on the following grounds: that they violated Article, 14 of the Indian Constitution which guarantees the right to equality of every person before the law and equal treatment of the law; that the amendment was arbitrary in nature; that it would prevent more than 50% of the citizenry in Haryana from contesting elections to these rural local self-governing bodies and that the classification of voters based on their education qualifications, debts owed to public service providers and cooperative banks is an unreasonable classification where the criteria were not defensible under the Constitution.
How did the Apex Court decide the matter?
The Apex Court threw out the challenge, lock stock and barrel through a line of reasoning which will be discussed shortly below. However, before deciding the core issue, the Court took upon itself the job of determining whether the right to vote and contest elections to constitutional bodies with particular reference to Panchayats was a constitutional right or not.
Earlier Benches of the Court, including a Constitution Bench had held differently on this issue. In the matter of People’s Union for Civil Liberties (PUCL) & Anr. vs Union of India & Anr. [(2003) 4 SCC 399], celebrated as the reiteration of the voter’s right to know the financial and educational background and criminal antecedents of candidates (if any) contesting elections to Parliament and State Legislatures, the Court had held that the right to contest elections to Parliament and Legislatures as well as the offices of the President and Vice President was a constitutional right guaranteed under Article 326. While this position was reiterated in some later judgements, in the matter of K. Krishna Murthy (Dr.) & Ors. v Union of India & Anr. [(2010) 7 SCC 202] a Constitution Bench (CB) of the Apex Court had ruled that the right to vote and contest in elections was only a statutory right arising from the Representation of the People Act, 1951.
The Court’s observations in PUCL earlier were not noticed by the CB before giving its opinion. The Apex Court in the Raj Bala matter set the record straight that the right to vote and contest elections to all constitutional bodies such as panchayats was a constitutional right.
However, the Court threw out the Petitioners’ challenge to the new grounds for disqualification from contesting elections to Panchayats in Haryana on the following grounds:
1) Article 243F of Part IX inserted in the Constitution through the 73rd Amendment empowers State Legislatures to enact laws that stipulate both qualifications and disqualifications for candidates contesting elections to the Panchayats. However the Court noted that Parliament does not have similar power to vary the qualifications and disqualifications for people to contest elections to the office of the President and the Vice President or the Parliament or State Legislatures above and beyond what is mentioned in the relevant constitutional provisions.
2) The Apex Court reiterated its position pronounced in a catena of judgements that the constitutionality of a statue cannot be successfully challenged merely on the ground of “arbitrariness”. The vires of a statue can be challenged only on the ground that the legislative body enacting the law does not have the power to so do, or that the provisions of the law violate the fundamental rights guaranteed by the Constitution or any other constitutional provision. Therefore merely claiming that a law is arbitrary cannot be an adequate ground for holding it as violative of Article 14 of the Constitution which guarantees the right to equality to all persons.
3) On the Petitioner’s plea that the educational grounds for disqualification of a candidate would amount to creating a new class of persons eligible for contesting panchayat elections at the detriment of others who do not belong to that class, the Apex Court held that such a classification was not unreasonable. While the Petitioners stated that as a result of the amendments more than 50% of the voters would be disqualified from contesting elections, the Court examined the data relating to the population of Haryana and the literacy of men, women and those belonging to the Scheduled Castes submitted by the Attorney General of India (AGI) from the National Population Register.
The AGI also argued that minimum educational levels were necessary for the elected representatives to perform their functions effectively. The Court accepted the fact that the education level based disqualification would render a large segment of the voter population in Haryana ineligible to contest elections. What followed is the reasoning applied by the Court to justify the disqualification. The Court ruled:
“85. The impugned provision creates two classes of voters – those who are qualified by virtue of their educational accomplishment to contest the elections to the PANCHAYATS and those who are not. The proclaimed object of such classification is to ensure that those who seek election to PANCHAYATS have some basic education which enables them to more effectively discharge various duties which befall the elected representatives of the PANCHAYATS. The object sought to be achieved cannot be said to be irrational or illegal or unconnected with the scheme and purpose of THE ACT or provisions of Part IX of the Constitution. It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration of the PANCHAYATS. The classification in our view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved. [emphasis supplied]
4) Further, in relation to the disqualification of candidates for non-payment of electricity Bills and dues to cooperative banks, the Petitioners had argued that a very large proportion of the rural population was indebted already and they would all be disqualified from contesting elections to Panchayats. The Court held that insolvency was a ground for disqualifying citizens from contesting elections to the offices of the President, VP, Parliament and State Legislatures. The Apex Court observed:
“92. No doubt that rural India, particularly people in the agricultural sector suffer the problem of indebtedness. The reasons are many and it is beyond the scope of this judgment to enquire into the reasons. It is also a fact that there have been cases in various parts of the country where people reportedly commit suicides unable to escape the debt trap. But, it is the submission of the respondents that such incidents are very negligible in the State of Haryana as the agricultural sector of Haryana is relatively more prosperous compared to certain other parts of the country.
“We do not wish to examine the statistical data in this regard nor much of it is available on record. In our view, such an enquiry is irrelevant for deciding the constitutionality of the impugned provision. We are also not very sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections whether at PANCHAYAT level or otherwise. We can certainly take judicial notice of the fact that elections at any level in this country are expensive affairs. For that matter, not only in this country, in any other country as well they are expensive affairs.
“In such a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it would be beyond the economic capacity of such persons. In our opinion, the challenge is more theoretical than real. Assuming for the sake of argument that somebody who is so indebted falling within the prescription of clauses (t) and (v) of Section 175(1) of the Act is still interested in contesting the PANCHAYAT elections, nothing in law stops such an aspirant from making an appropriate arrangement for clearance of the arrears and contest elections.
“At this stage, an incidental submission is required to be examined. It is submitted that there could be a genuine dispute regarding the liability falling under the clauses (t) and (v) and therefore it would be unjust to exclude such persons from the electoral process even before an appropriate adjudication. Justness of such a situation is once again in the realm of the wisdom of the legislation. We do not sit in the judgment over the same. But we must make it clear nothing in law prevents an aspirant to contest an election to the PANCHAYAT to make payments under protest of the amounts claimed to be due from him and seek adjudication of the legality of the dues by an appropriate forum. We do not see any substance in the challenge to clauses (t) and (v) of Section 175(1) of the Act.” [emphasis supplied]
5) The Petitioner’s challenge to the ground of disqualification of a candidate for not having a toilet in one’s home was dismissed by the Court with the following words:
“95. It is a notorious fact that the Indian population for a long time had this unhealthy practice of defecating in public. The Father of the Nation wrote copiously on this aspect on various occasions. He took up with a missionary zeal the cause to eradicate this unhealthy practice. At some point of time, he even declared that the priority of this country should be to get rid of such unhealthy practice than to fight for independence. It is unfortunate that almost a hundred years after Gandhiji started such a movement, India is still not completely rid of such practice. The reasons are many. Poverty is one of them. However, this unhealthy practice is not exclusive to poorer sections of not in a position to construct a toilet.
“As rightly pointed by the respondents, if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will. One of the primary duties of any civic body is to maintain sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and administer them must set an example for others. To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in our view, can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the object sought to be achieved by the Act.” [emphasis supplied]
Justice Sapre who concurred with this judgement penned by Justice Chelameswar said the following in his concurring but separate opinion:
“11. Now coming to the question regarding constitutionality of Section 175(w) of the Act, which provides that if a person has no functional toilet at his place of residence, he/she is disqualified to contest the election. In my view, this provision too has reasonable nexus and does not offend any provision of the Constitution. Indeed, there are no grounds much less sustainable grounds available to the petitioners to question the validity of this provision.
“This provision in my view is enacted essentially in the larger public interest and is indeed the need of the hour to ensure its application all over the country and not confining it to a particular State. Moreover, the State having provided adequate financial assistance to those who do not have toilet facility for construction of toilet, there arise no ground to challenge this provision as being unreasonable in any manner.” [emphasis supplied]
What is problematic in this judgement?
1) The judgement ignores important international human rights standards that India has accepted and agreed before the international community to comply with in relation to its own people. Article 25 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) which India acceded to in 1979 prohibits discrimination between human beings in relation to voting or contesting elections in the following words:
“Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free ex pression of the will of the electors;…” [emphasis supplied]
Article 2 of the ICCPR states:
“Article 2. 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [emphasis supplied]
Further Article 26 of the ICCPR states as follows:
“Article 26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [emphasis supplied]
In the text of the judgement in Raj Bala there is nothing to show that this important commitment that India has made before the international community was raised by the Petitioners. Perhaps the Petitioners did so and the Court did not find it a persuasive argument enough to include in its opinion. Clearly, “other status” mentioned in the Articles of the ICCPR cited above would include educational status, status of indebtedness and also the status of not being the owner of a toilet. It is strange that the Apex Court which is often sensitive to India’s international human rights commitments did not go the extra mile to check whether their judgement would be tenable in the light of those international commitments.
There is a clear case for the Petitioners and others in civil society and academia to bring this judgement as well as the stance of the Government of India in collaborating to make a large segment of the voter population in Haryana ineligible to contest Panchayat elections, to the notice of the international agencies such as the UN Human Rights Council and the Human Rights Committee- the treaty monitoring body for the ICCPR complaining that India has violated a major human rights commitment it made internationally 36 years ago.
2) Should the rural folk of Haryana be held to fault that they have not been able to avail themselves of the opportunities of going to school when the entire primary and secondary education system in the public sector across the country is in a huge mess? Look at the irony:
If you are a woman who is only a 6th Class pass, you cannot contest elections in Haryana in the non-reserved category but you can successfully contest elections to Parliament from anywhere in India and become the Union Cabinet Minister for Water Resources and work to rejuvenate river Ganges. Or you could contest elections successfully to the Haryana State Legislature. According to the data uploaded on the website MyNeta.Info by the Association for Democratic Reforms (ADR), there are at least two MLAs in Haryana who have not completed even matriculation level studies.
One woman member of the Haryana Legislative Assembly is said to be unlettered. So these three MLAs will be be disqualified from contesting elections to Panchayats but there is no bar on their becoming MLAs. Ergo, the bar for contesting elections to lower level public offices is higher than the bar on contesting elections to higher level constitutional offices! Somehow this logic defies basic commonsense and the values of justice and fair play.
While looking at the statistics regarding the unlettered or poorly educated segments of society in Haryana collected by that controversial exercise called National Population Register, the Apex Court did not go into the issue of whether people who have the necessary qualifications to contest panchayat elections are evenly distributed across all panchayats in Haryana. What if some villages do not have any candidate who meets the necessary educational qualification? Will the panchayat remain without an elected body? Unfortunately, the Apex Court has not gone into the implications of its judgement while giving its opinion – a sacrosanct duty of any Court which is empowered to adjudicate on the rights between parties appearing before it.
Can formal education alone be the benchmark for testing the intelligence of people? Can only formally educated people discriminate between good and bad and right and wrong as the judge held? If, so why is the air in New Delhi so polluted today? Surely it is not the unlettered people living in this city who are contributing to this pollution. It is mainly because of the educated and well off people who have recklessly abandoned every care for the environment in their consumerist fervour.
3) Equating “rural indebtedness” with “insolvency” is like pouring salt over an already festering wound. Mere indebtedness does not amount to insolvency to the ebst of my knowledge. The disqualification for contesting elections to high constitutional offices is for insolvency not for mere indebtedness. They are in two different categories and recognised as such by the law. Leaving the legal interpretation aside, so many thousands of candidates many of whom have successfully been elected to Parliament and State Legislatures in Haryana and elsewhere have declared unpaid Bills and loans in their election affidavits which are publicly available on website of the Election Commission of India. Should they not be prohibited from contesting elections using the Apex Court’s reasoning?
For example, according to the data uploaded on ADR’s website, one Lok Sabha MP from Vijayawada has declared liabilities to the tune of Rs. 710 million in his election affidavit in 2014 while contesting elections. 3 MPs from Punjab, Gujarat and Maharashtra have outstanding dues of more than Rs. 400 million each. 70% of the MPs (384 out of 543) in the Lok Sabha have declared dues ranging Rs. 10,000 to Rs. 300 million. 17.5% of the MPs (95) in the Lok Sabha have declared dues of more than Rs. 100 million each. A prominent MLA in Haryana has declared Rs. 100 million as outstanding dues. A large number of MLAs in Haryana have declared dues between Rs. 100,000 to Rs. 100 million. Should the Constitution be amended to declare them all “insolvents” and debar them from contesting elections to Parliament and the State Legislatures in future?
If such action cannot be even contemplated against the MPs and MLAs, why are more than 50% of the rural folk in Haryana subjected to such stepmotherly treatment? Why should such patently discriminatory laws be extended to other parts of the country by following the Apex Court’s wishful thinking? The large volume of non-performing assets in public sector banks is not due to the poor rural people taking loans but wealthy people in the business and the industry exerting their influence on the powers that be from taking action against them. They may be barred from contesting elections to panchayats in Haryana but they can happily contest and even win elections to the Haryana State Assembly and Parliament. It is most unfortunate that the Apex Court ‘s reasoning lends itself to these implications.
4) Can the people be blamed for not having toilets when the Governments have done precious little to curb corruption in the Total Sanitation Campaign which is nowadays subsumed into the Swacch Bharat Abhiyan (Clean India Campaign). Case after case is reported by the media abut corruption in these programmes. Instead of pulling up the Governments for preventing such corruption and ensuring better delivery of project outputs, the Apex Court has held the actions of the Haryana State Legislature valid. Thanks to this judgement, the very poor, unlettered, the indebted and the underprivileged are being “cleaned out” of the political scene in Haryana
5) Although the 2015 amendments to the PR Act in Haryana also introduced a disqualification for candidates who had criminal charges framed against them, where they would serve not less than ten years in prison upon conviction, the Apex Court observed that the Petitioners had not challenged that ground. A reader of the Raj Bala judgment notices unmistakably the Court’s mildly couched disappointment at not being called upon to interpret the constitutionality of this ground for disqualification. Readers will recollect that introduction of such a disqualification has been a major demand of a large number of civil society actors and NGOs working for electoral reforms for several years now.
6) With the deepest respect to the wisdom of the Apex Court, it must be said that it has elected to ignore the main objective of the 73rd Constitutional Amendment, namely, entrenching grass roots level democracy. That entrenchment cannot be achieved if a large majority of the people are disqualified from contesting elections. The solution is not to bar people from contesting elections, but to roll out targeted programmes to help them acquire quality adult education, enable them to clear their dues on reasonable terms, and provide corruption free assistance to construct individual toilets in their homes.
In a democracy laws must be designed to empower the disempowered people. Instead the amendments to the PR Act empower the State to disqualify people from participating in one of most basic activities in a democracy – namely, contesting local body elections. The amendments appear to be punitive and retributionist in nature, imposed by a State that is frustrated by the lack of desired outcomes in its developmental programmes targeting poverty, illiteracy and sanitation.
7) Unfortunately, the AGI while representing the Union before the Apex Court seems to have forgotten to include in his brief, a reference to the promise made by the Hon’ble Prime Minister in his election campaign in 2014 – “sabka saath sab ka vikaas” (with all and development for all = inclusion of the excluded). Or else he might have argued differently. This amendment to the PR Act in Haryana is not a programme of inclusion. It is a diabolical programme of exclusion of the most disempowered and marginalised people from even participating in the shaping of their collective destiny.
With the deepest respect to the wisdom of the Supreme Court of India, it must be said that the people of Haryana did not deserve this gift on International Human Rights Day (December 10). I hope the Bar will move the Apex Court to re-examine the wisdom of this judgement, sooner than later because if this precedent were allowed to remain, the High Court in Rajasthan, will in all probability uphold similar education related disqualifications introduced in the PR Act of that State which is under challenge before it and other States may feel encouraged to make similar amendments to their panchayati raj laws.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi