THE CONSTITUTIONAL, LEGISLATIVE AND JUDICIAL FRAMEWORK OF DISENFRANCHISEMENT IN INDIA: A CRITICAL EXEGESIS

I. INTRODUCTION

“In spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule… If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… ”

-Alladi Krishnaswamy Ayyar, Constitutional Assembly Final Debates, 23rd November 1949[i]

On 10th December 2015, the Supreme Court upheld the Haryana Panchayati Raj Act amendments, which imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections.[ii] Initially, an ordinance known as “Haryana Panchayat Raj (Amendment) Ordinance, 2015 was promulgated on 14th August 2015, then replaced by the Haryana Panchayati Raj (Amendment) Act, 2015[iii] which was passed by the Haryana Legislature on 7th September 2015 and subsequently notified. The constitutionality of the Amendment Act was upheld by the Court, spurring considerable debates surrounding the province of judicial review over legislative prescription of qualifications for contesting elections, the politics of disenfranchisement[iv] and the Constitutional framework pertaining to these spheres.

Similarly, the Ordinances No. 1[v] & 2[vi] of 2014 passed by the Governor of Rajasthan sought to amend the Rajasthan Panchayati Raj Act, 1994[vii] to include additional disqualifications for contesting for the position of a ‘Panch’ or a member of the local government. These disqualifications were: “1) the potential candidate “does not have a functional sanitary toilet in the house and any of his family members defecate in the open”[viii]; or 2) the potential candidate has not passed Class V (in case of Sarpanch of a Scheduled Area) or Class VIII (in case of Sarpanch or other areas) or Class X (in case of member of Zila Parishad or Panchayat Samiti).[ix] The Supreme Court dismissed the challenge to the ordinances under procedural grounds, granting the liberty to the petitioners to approach the Rajasthan High Court, which in turn passed an order refusing to interfere with the workings of the ordinance.[x] The Constitution provides for disqualifications for membership of Panchayats in Article 243F[xi] The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State.

While these Ordinances and Acts have been opposed in public discourse, primarily on grounds of public policy, this essay seeks to highlight a core constitutional issue arising under the Ordinances: the legal position of the right to contest. An epistemological and critical analysis of the epistemology of disenfranchisement in India is followed by a scrutiny of the reasons afforded by the Supreme Court for imposing educational disqualifications in Rajbala. [xii] Moreover, a comprehensive review of arbitrariness and rationality review is undertaken, along with a review of educational suffrage in the domestic and international context to offer a comprehensive legal and policy evaluation of the constitutional power to disqualify people from contesting elections.

II. ANALYZING THE CONSTITUTIONAL FRAMEWORK: REVIEWING THE LEGAL-JUDICIAL EPISTEMOLOGY OF DISENFRANCHISEMENT

With reference to free and fair elections, there has been a series of Supreme Court rulings including Constitution bench Judgments in Indira Gandhi v. Raj Narain,[xiii] Kihoto Hollohon v. Zachillhu,[xiv] as well as more recent judgments like PUCL v. Union of India,[xv] and NOTA case,[xvi] where the Apex Court has held that free and fair elections, being an intrinsic part of democracy, is a part of the basic structure of the Constitution.

Most of the decisions before 2000 accord the right to elect (i.e., the right to vote) and the right to be elected (i.e., the right to contest) the status of both “pure and simple” statutory rights, and not fundamental or common law rights. In fact, in Jyoti Basu v Debi Ghoshal,[xvii] the Court moreover held that “concepts familiar to common law and equity must remain strangers to Election Law”. It expressly recognized the anomaly imbricate in such interpretation of the right to elect (and by extension, the right to dispute election), which, “fundamental though it is to democracy”, was, albeit “anomalously enough”, neither a fundamental right nor a Common Law Right.[xviii]

The post- 2000 decisions mark an attitudinal shift in the Court’ approach- in Union of India v ADR[xix] and PUCL v Union of India,[xx] the Court held the act of voting to be a form of freedom of expression (a fundamental right under Article 19(1)(a). However, the position on the right to contest remains murky – it is still to be only a statutory right, or at best a constitutional right, but never a fundamental right. One possible way to reconcile the distinction between the “right” to vote (statutory) and the “freedom” to vote (constitutional) is that while the legislature is permitted and entitled to prescribe modalities for regulating the election process (which it does through the Representation of Peoples Act, and other similar statutes), essentially determining how the right to vote is exercised, the freedom to vote itself, and consequent disenfranchisement of those entitled to participate in it, is as much within the realm of legislative policy formulation as judicial review, for it is integral to constitutional freedom itself.[xxi]

In this context, it is essential to review whether the statute creating the right to contest itself can be subject to a fundamental rights challenge. In Jumuna Prasad Mukhariya v Lachhi Ram,[xxii] the SC held that the right to contest an election is not a common law right but a special right created by statute and can only be exercised on the conditions laid down by the statue, thus eliminating any connection with the Fundamental Rights Chapter. Thus the contentions that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) were dismissed owing to the absence of any “antecedent” right to stand for election. Thus citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law or statute.

The Supreme Court also rejected a challenge to a statutory provision disqualifying potential Panchayat election candidates with more than two children in Javed v State of Haryana.[xxiii]  With regard to the contentions based on Article 21 (right to life) and Article 25 (freedom of religion), the Court reiterated the stand taken in Lachhi Ram- no citizen is barred from exercising fundamental rights, but if he seeks to contest elections, the rules must be followed. The contention based on Article 14 (equality before law) was also rejected, by reasoning that it satisfies the tests of intelligible differentia and rational nexus to the Statute’s object. Ostensibly, the “well-defined” and “perceptible” classification of persons into those not having more than two children and those having more than two living children, clearly had rational connection with the object of the legislation- popularizing the family welfare/family planning programme. Significantly, it noted that the disqualification did not suffer from arbitrariness, as the number of children which served as a criterion of distinction was solely under the realm of legislative wisdom and policy considerations, which were not within the bounds of judicial scrutiny. The point made regarding arbitrariness is especially noteworthy, given the context of Article 14, and the subsequent vehement refusal of the Court to use the standard of arbitrariness in its latest decision on the Haryana Act.

Where Javed[xxiv] needs serious review is the inconsistency of application of the object-nexus text to a statutory amendment corresponding object of the main Statute or the Constitutional Amendment authorizing the statute.[xxv]  By recognizing the bar on persons with more than two living children to contest elections, the objective of family welfare was unduly sought to be commixed with increased political participation in self-governance. Thus the High Court’s order in the Rajasthan case correctly notes that the disqualification for membership, under Article 243F of the Constitution, to be prescribed by the Legislature of the State, could not have provided for any such condition attached, which may have taken away the rights of the self governance, except for disqualifications, which have material object to achieve, such as the character, integrity or morality of the person to represent.  Any other disqualification would “negate the object of self governance at grass root level, peoples participation, and social justice”.

Moreover, it asserted the dichotomy imbricate in prescription of educational qualification for contesting elections, which would be antithetical to the democratic governance of the institution in a republic, “unless there is strong nexus with the object, to be achieved”.[xxvi] This clarification is of immense interest for the Indian constitutional framework, as it may well be a forerunner for the grounding of a stronger rationality standard review. While that may be of academic interest as of now, one point, however, is clear- drawing the rational nexus in the context of disenfranchisement is a meticulous judicial exercise, and it certainly merits sufficient evidence and justifications to be adduced to demonstrate that such nexus corresponds to the proposed amendment, not an objective seeking to restrict the constitutional provision itself.

Thus it is apparent that while the substantive fundamental right to contest elections is completely absent, the only barometer in the realm of fundamental rights, which can be applied to statutes creating the right to contest, is the test for reasonable classification and rational nexus.[xxvii] This raises significant concerns regarding the conduct of free and fair elections and representative democracy, both reiterated to be part of the “basic structure” of the Indian Constitution numerous time

III. Rajbala v. State of Haryana: LOCATING CONSTITUTIONAL POWER TO DISQUALIFY PEOPLE FROM CONTESTING ELECTIONS

By the Amendment Act,[xxviii] five more categories of persons are rendered incapable of contesting elections for any one of the elected offices under the Act. These categories are: (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years, (ii) persons who fail to pay arrears, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank, (iii) persons who have arrears of electricity bills, (iv) persons who do not possess the specified educational qualification and lastly (v) persons not having a functional toilet at their place of residence.[xxix]

The Court[xxx] asserted that the Constitution recognizes the distinction between the ‘Right to Vote’ at various elections contemplated under the Constitution and the ‘Right to Contest’ at such elections. An examination of the scheme of Articles 58, 66, 102, 191, 84, 173 indicates that every person who is entitled to be a voter by virtue of the declaration contained under Article 326 is not automatically entitled to contest in all of the elections enumerated therein.[xxxi] The court reasons that these provisions, by implication, create a constitutional right to contest elections to these various constitutional offices and bodies since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right. Moreover, the Court found that the distinction between qualifications and disqualifications is purely semantic[xxxii]

The Court also examined the statistics provided by the petitioners as to the dempgraphic distribution of the groups affected by the Act. Out of the 96 lakhs of rural population, 35 lakhs men, 20 lakhs women are literate above primary level, so Even if we assume all the 20 lakhs women are matriculate and, therefore, eligible to contest any election under the Act, they would contribute less than 50% of the otherwise eligible women and 68% of the scheduled caste women and 41% of the scheduled caste men would be ineligible to contest Panchayat elections. A large number of women (more than 50% of the otherwise eligible women) in general and scheduled caste women in particular would be disqualified to contest Panchayat elections by virtue of the Impugned Act. [xxxiii]

One of the most troubling observations in the judgment is that “if it is constitutionally permissible to debar certain classes of people from seeking to occupy the constitutional offices, numerical dimension of such classes, in our opinion should make no difference for determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible.” (emphasis supplied). By lumping all constitutional assessments of suitability of persons for contesting elections, such as undischarged insolvency, unsoundness of mind, etc. under one group, the Court tragically not only conflates the criteria of disqualification, but also suggests that disparate impact (numerical dimension of such classes) is irrelevant and it is only complete breakdown of the institution under question (where holding of elections to these various bodies becomes completely impossible) that triggers judicial intervention.

Another significant aspect of this judgment is its emphasis on numerical data at the cost of individual freedom. Where Article 14 specifically grants that the State shall not deny to “any person” equality before the law or the equal protection of the laws, the right to equality and the Constitutional freedom to vote rooted in Art. 19(1)(a) clearly inhere in the individual. When it comes to personal freedoms as constitutional rights, numbers don’t matter, simply because our rights are essential checks to the oppression of majoritarian democracy. Thus to mandate that the petitioners should have produced ample data to show that a “large section of the population is affected” undermines the very nature of civil and political rights granted in Part III of the Constitution. The disparate impact of a facially neutral statute on one section of the population, in this particular context, therefore was sufficiently manifest to require precise numerical data. The insistence on numbers, despite clear recognition of disenfranchisement, is thus baffling and raises serious questions about the very nature of our fundamental rights itself.

It appears that despite the accordance of constitutional status to the right to contest elections, a fundamental debate underlying the nature of this right has not been resolved in praxis. This involves the duality between privilege and right- if voting/standing for office is a mere privilege, then obviously there cannot be any antecedent claim if the legislature decided to take it away by passing a law to that effect.[xxxiv] On this interpretation, as recognized in Lacchi Ram, the omnibus clauses in Articles 84 and 102 provide a carte blanche to the legislature to impose whatever disqualifications it chooses to. If, on the other hand, voting is a right, then the discretion of the lawmaker to take it away must accordingly be curbed: a law taking away a right has to pass a higher threshold of justification. Secondly, there exists a dichotomy between discerning the true purpose of elections- if the purpose be to select the most suitable and competent candidate, then imposition of a priori disqualifications by the legislature are perfectly justified; however if the intent is to give effect to the choice of the people, then there is no justification for limiting that choice on the assumption that by allowing everyone to contest, there is a possibility of the wrong, or less qualified candidates, being chosen.

The words [xxxv] shall be entitled” in Article 326 show that suffrage, under the Constitution, is a question of right, not of privilege. Moreover, the rejection of the arguments for literacy requirements along with their underlying bases as potential disqualifications (the language of Article 326 being exhaustive) answers the second question: the vision of democracy is one based not on ensuring the most “competent” candidate wins (by whatever a priori definition of “competence”), but on giving effect to the people’s choice. In that case, prior screening out of candidates is a clear violation of this principle. The disqualifications in Art. 102 such as holding an office of profit, unsoundness of mind, being an undischarged insolvent, and not being a citizen of India are often argued to be envisaged as maintaining the integrity of the electoral process, and not relating to the individual competence or quality of individual candidates.[xxxvi] While unsoundness of mind broaches closely upon individual competence, it may be pointed out that there is certainly an appreciable qualitative difference between illiteracy and unsoundness of mind, and between the State’s role to play in these two spheres.[xxxvii] 

Disqualifications enacted in law must also cleave to the principle of maintaining the integrity of the electoral process (e.g., disqualification of all persons convicted of cognisable offences), but cannot be imposed simply on the basis of some a priori ideas about what makes a good or effective candidate.[xxxviii]  It may be noted that the property disqualification (having a functional toilet in the house) is an even more blatant constitutional violation. In fact, on 2nd June 1949, Ambedkar expressly stated that it was not the purpose of the aforementioned omnibus clause to permit property-based disqualifications.[xxxix]

IV. THE RATIONALITY REVIEW STANDARD: ARTICLE 14 AND DISENFRANCHISEMENT

Under the United States Equal Protection clause, these issues are addressed under a three-pronged tiered structure of judicial scrutiny.[xl] The lowest tier is “rationality review”, commonly applied to economic and tax legislation, which matches our basic Article 14 test. Then there is “intermediate scrutiny”, which, inter alia, applies to sex discrimination and commercial speech cases and is akin to a proportionality test, where the State is required to show a substantial fit between the law and some important governmental objective, but need not show an exact fit. The highest standard is “strict scrutiny”, which applies, for instance, to affirmative action. Here, the State must show that the law is “narrowly tailored” to achieve a “compelling State interest”. The varying levels of scrutiny are meant to track the importance of the constitutional rights at stake.

The Indian Judiciary has not yet sought to adopt this hierarchical model under Article 14 primarily because the Articles 15 and 16 of the Indian Constitution- for which there is no parallel equivalent under the American Constitution – expressly prohibit discrimination on grounds of caste, race, sex etc. Thus, discrimination jurisprudence need not be drawn out from an omnibus Article 14, but finds explicit and clear mention in Articles 15 and 16.[xli]

Notwithstanding the presence of these Articles, however, the Indian Supreme Court became conscious of the inadequacy of the rationality review standard which was too deferential to the State. A “rational connection” between a classification and a purpose is, in fact, an extremely low threshold; in certain cases, it is no threshold at all, as any classification will have a rational connection with some purpose. Unless the State is unwilling to state that purpose in Court (for political or other reasons), or if the purpose is itself unconstitutional, Article 14 provides little more than a parchment barrier against State action. The Court therefore created a new “arbitrariness” test in  E. P. Royappa v. State Of Tamil Nadu & Anr[xlii] holding that “Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law.” But if rationality review was too deferential to the State, the “arbitrariness” test vested unconstrained discretion in the hands of judges, with no guidelines for determining what must happen for a legislation to be considered “arbitrary”. [xliii]  Thus the arbitrariness test may well be intellectually indefensible, as proved by its latest outright rejection in the Rajbala case[xliv].

An important consideration of why the rationality review standard has been preferred so far gives an important insight into its justiciability in the immediate context. While it is certainly true that legislature has greater expertise to frame policy than courts do , as in case of economic legislation, having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal-policy legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc., for taxation,[xlv] what is even more remarkable is that the legislature has the legitimacy to frame policy because it is elected by the people, and the Courts are not. In the classical framework, courts are counter-majoritarian institutions protecting the sanctity of individual rights in majoritarian democracy, while legislature is a body that can trace its authority to the people (through elections). Thus  if the legislative policy tries to change the ground rules of the electoral process itself, then it loses the presumption that operates in its favour.[xlvi] This is because every law that restricts the franchise, or restricts who can stand, impacts the democratic legitimacy of the body that will be formed as a result of those restrictive elections.

Consequently, the primary basis of the low Article 14 standard of rational review is undermined when the law itself takes away the foundation of why the low standard is justified in the first place. Therefore, for laws that affect the political process, such as restrictions on voting and standing, should be subjected to a higher standard of review. It is apt to note the observation of erstwhile Chief Justice Earl Warren of the United States Supreme Court in Kramer vs Union Free School District:[xlvii] “the presumption of constitutionality and the approval given “rational” classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.” In India, in Subhash Chandra v. Delhi Subordinate  Services Selection Board.[xlviii], the Indian Supreme Court made an observation of note- “Courts must guard against that protective discrimination clauses are not used as pretexts for an invidious purpose… The government must have a overwhelming compelling interest to justify limitations on the freedom of association, free exercise of religion, free speech, right to vote, right to travel et al.” The interesting and significant aspect of this observation is the inclusion of “the right to vote” in a list of fundamental rights in Part III- 19(1)(c), 25, 19(1)(a), 19(1)(d), etc.

In Rajbala,[xlix] the SC refused to use the standard of arbitrariness since such an exercise implied a value-judgment and it observed that courts did not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution.[l] While offering a lengthy exposition of the reasons for rejection of the standard of arbitrarinesss, the drawing of the rational nexus was hastily summed up in one paragraph. The Act, according to the Court, 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, for achieving the proclaimed object of such classification, i.e. 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.[li] The only substantive reason afforded was – “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 was not “irrelevant” for better administration of the Panchayats and the classification had reasonable nexus with the object sought to be achieved.[lii]

Curiously, the High Court’s order in the Rajasthan case did in fact note that electoral participation ought not be curtailed on grounds of educational disqualification, and that the legislation is prima facie “arbitrary, irrational and unreasonable”, it refused to decide upon the constitutionality of the Ordinance. It was clearly acknowledged that deprivation of a large section of the society to participate in the democratic institution of Panchayati Raj, runs counter to the objectives of the 73rd Amendment. Yet dubiously enough, it “refused to form an opinion” whether the Ordinance was discriminatory, because of lack of sufficient data placed before the Court to evince the number that would stand excluded.[liii]

V. EDUCATIONAL DISQUALIFICATIONS: A BRIEF REVIEW

The practice of imposing educational suffrage has a long and much-denounced history, as may be observed in the U.S.A. where it offered a facially neutral front for blatant racial, class and gender discrimination.[liv] The justification for such denunciation is easily inferred- the presumption that access to education is universally distributed, and had no link to socio-economic status, automatically disenfranchised the marginalized sections, such as migrant and landless laborers, women, the “blacks”, who did not receive basic formal education due to such marginalization in the first place.

In India, the intended imposition of such educational qualifications played an important role in the colonial government’s postponement of self-government in British India. The Southborough Committee, constituted to offer recommendations on the franchise by the Government of India Act 1919, stated that “education does help in the formation of an electorate which will be potentially more capable of understanding issues submitted to its judgment and hence prima facie better equipped to exercise political power”.[lv] Similarly, in offering recommendations for the Government of India Act 1935, the Lothian Commission noted that, in addition to the size of its population, illiteracy constituted one of “the two special problems which confront India in setting on foot a system of responsible government”. However, what is noteworthy is that despite this emphasis on education, the colonial administration and policy makers was clearly cognizant of the impracticability of imposing this qualification due to high rates of illiteracy (although they extended it to signify complete denial and predicted high probability collapse of self-government as a consequence). [lvi]

The very assumption of literacy as an indicator of political intelligence has however long been contested. For instance, in the deliberations of the Roundtable Conference’s Subcommittee, one finds three distinct lines of critique against the educational qualification.[lvii] The first emphasized the irrelevance of educational qualification in matters of political judgment. While some urged that illiterate people had a “horse sense” which allowed them to make intelligent political judgment, others criticized the narrow understanding of education as formal instruction on which defences of such proposals rested- they expressly pointed towards the vocational or ‘practical’ training that these illiterate peasants and laborers were endowed with.

Secondly, critics of the literacy qualification highlighted the culpability of the colonial government in failing to ensure wider access to education. It was, according to this critique, unfair for the government to penalize persons for not obtaining educational qualifications, which it had failed to provide. Thus it is observed that the argument that educational qualifications disadvantage certain sections of the population for whom the state failed to provide equal access to education has in fact been taken up a long time ago itself.[lviii]

Finally, it was urged that political participation was itself an important means of education about public affairs. This argument drew upon a Mill-ian understanding of politics as an educative process[lix] and suggested that illiterate people had become more politically aware through participation in previous elections, and would continue to do so if given the opportunity. The Constituent Assembly’s debates on Clause (c) of educational qualifications to be included in the ambit of Article 84 (for elections to parliament) and Article 173 (legislatures in the states) affords an illuminating illustration of opposition of  the explicit formulation of a literacy qualification.[lx]

Coincidentally, the issue of educational disqualification has been last debated in Pakistan, in 2008.[lxi] While the right to vote is a fundamental right in Pakistan, some of the Court’s observations in the 2008 decision relating to liability of state to provide equal access to education and the problem of disenfranchisement are similarly apposite in the Indian context. The Court observed  that according to Article 37 of the Constitution of Pakistan, the State was obliged, inter alia, to promote with special care the education and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. To achieve these objectives no time limit was fixed whereas the condition of being a graduate was imposed instantly. Under Article 30(2) of the Constitution of Pakistan, validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy and that no action shall lie against the State. Thus, the inaction of the State in not providing equal opportunities of education in the country did not entail any penal consequences, while the inaction of citizens in not acquiring educational qualification had been made punishable instantly and the non-graduates deprived of contesting election. This manifest anomaly was termed electoral apartheid, and the Court held that the qualification was ultra vires Articles 17(2) and 25 of the Constitution (right to form political parties from which flows the right to contest and the right to equality), since it was not in pursuance of protecting the integrity and sovereignty of Pakistan and nor did it satisfy the twin test of intelligible differentia and reasonable nexus.

VI. CONCLUSION

The empirical data from the latest status in 2011 shows the magnitude of potential numbers that stand excluded. The literacy rates among rural women and Scheduled Caste women in Rajasthan stand at 45.8% and 34.38% respectively, while only 34.9% of the households in Rajasthan have any form of toilets. A distinctly gendered disenfranchisement of a significant group of stakeholders in the political process emerges as an inevitable aftermath of enforcing such disqualifications. As for Haryana, the petitioners had pleaded in the Raj Bala case that the State’s actions had the effect of disqualifying 56.80% of the state’s population who would need to be matriculation pass (69,86,197) and 79.76% of the population who would need to be middle-pass (10,83,052), in order to contest elections.[lxii] The introduction of hitherto-extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation is insidious because, in the ultimate analysis, it will tantamount to an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution.

This post has been authored by Aratrika Choudhuri, 2nd Year student at the West Bengal National University of Juridical Sciences, Kolkata and a member of the Constitutional Law Society. The essay was the winning essay of the Fourth D.D. Basu Essay Competition.  

VII. END NOTES:

[i] Centre for Law and Policy Research, Constituent Assembly Debates, available at http://cadindia.clpr.org.in/ , last seen on 31/01/2016.

[ii] Rajbala & Others v. State of Haryana & Others, Writ Petition (Civil) No. 671/2015, delivered on 10/12/2015

[iii] (Act 8 of 2015).

[iv] In the context of this essay, disenfranchisement is taken to mean abrogation of the right to vote, as well as the right to contest elections

[v] http://www.rajsec.rajasthan.gov.in/Files/Upload/Law/PRI/Notification_1531_PRI_English.pdf

[vi] MANUAL OF PANCHAYATI RAJ ELECTION LAW (RAJASTHAN) (A compilation of statutory provisions governing elections to Panchayati Raj Institutions) (As on 23.12.2014) STATE ELECTION COMMISSION, RAJASTHAN, JAIPUR 2015

[vii] Which effectuates local self-governance in Rajasthan

[viii] Inserted by Notification No. F.4(1)Vidhi/2/2014 dt. 8.12.2014 (Ordinance No. 1 of 2014).

[ix] Inserted by Notification No. F.4(3)Vidhi/2/2014 dt. 20.12.2014 (Ordinance No. 2 of 2014).

[x] The petitioners had asked for an extension on the nomination period and a stay on the disqualification provisions pending a full adjudication of the dispute, so that in the upcoming elections this month, a large section of the population would not be excluded. The Court’s refusal to agree to either request means that the elections will now go ahead, and even if the Ordinance is eventually held unconstitutional, there will be no remedy until 2020.

[xi] 243F. Disqualifications for membership. – (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat – (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.”

[xii] Rajbala & Others v. State of Haryana & Others, Writ Petition (Civil) No. 671/2015, delivered on 10/12/2015

[xiii] 1975 Supp SCC 1

[xiv] 1992 Supp (2) SCC 651.

[xv] (2003) 4 SCC 399.

[xvi] (2013) 10 SCC 1

[xvii] (1982) 3 SCR 318

[xviii] Id.

[xix] (2002) 5 SCC 294

[xx] (2013) 10 SCC 1

[xxi] Keyssar, Alexander. The right to vote: The contested history of democracy in the United States. Basic Books, 2009.

[xxii] (1955) 1 SCR 608

[xxiii] (2003) 8 SCC 369

[xxiv] Id.

[xxv] See McKay-Panos, L., 2004. Right to VoteLawNow29, p.66.

[xxvi] Uggen, C. and Manza, J., 2002. “Democratic contraction? Political consequences of felon disenfranchisement in the United States”. American Sociological Review, pp.777-803.

[xxvii] Vasujith Ram, The Case of the Rajasthan Panchayats and the Right to Contest, Int’l J. Const. L. Blog, Jan. 7, 2015, at: http://www.iconnectblog.com/2015/01/the-case-of-the-rajasthan-Panchayats-and-the-right-to-contest

[xxviii] Haryana Panchayati Raj (Amendment) Act, 2015

[xxix] Section 175 of the Haryana Panchayati Raj Act, 1994 mandates that persons suffering from any one of the disqualifications mentioned in Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can they continue in office if they incur any one of the disqualifications, after having been elected.

[xxx] Writ Petition (Civil) No. 671/2015 ate : 10/12/2015

[xxxi] The Constitution prescribes certain basic minimum qualifications and disqualifications to contest an election to any of the above mentioned offices or bodies. Insofar as election to the Office of the President and Vice President are concerned, they are contained under Articles 58 and 66 respectively. Insofar as Parliament and the State Legislatures are concerned, such qualifications are stipulated under Articles 84 and 173, and disqualifications under Articles 102 and 191 respectively. The Constitution also authorises Parliament to make laws prescribing both further qualifications and disqualifications. Interestingly, insofar as elections to Office of the President and Vice President are concerned, the Constitution does not expressly authorise either Parliament or Legislative Assemblies of the State to prescribe any further qualifications or disqualifications to contest an election to either of these Offices. It stipulates only two conditions which qualify a person to contest those Offices, they are – citizenship of the country and the minimum age of 35 years. Under Articles 58(1) (c) and 66(3)(c), it is further stipulated that a person who was otherwise eligible to contest for either of the above mentioned two Offices shall not be eligible unless he is qualified for election as a Member of the Lok Sabha or the Rajya Sabha respectively.

[xxxii]In common parlance, it is understood that a qualification or disqualification is the existence or absence of a particular state of affairs, which renders the achievement of a particular object either possible or impossible. Though there are two sets of Articles purporting to stipulate qualifications and disqualifications, there is neither any logical pattern in these sets of Articles nor any other indication which enables discernment of the legal difference between the two expressions. We reach such a conclusion because citizenship of India is expressly made a condition precedent under Articles 84 and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also expressly stipulated to be a disqualification for membership of either of the above mentioned bodies under Articles 102 and 191. In view of the stipulation under Articles 84 and 173 – citizenship is one of the requisite qualifications for contesting election to either Parliament or the State Legislature, we do not see any reason nor is anything brought to our notice by learned counsel appearing on either side to again stipulate under the Articles 102 and 191 that lack of citizenship renders a person disqualified from contesting elections to those bodies. Learned counsel appearing on either side are also unanimously of the same opinion. We are, therefore, of the opinion that the distinction between qualifications and disqualifications is purely semantic.”

See also Manoj Narula v. Union of India, (2014) 9 SCC 1 Para 110. Article 84 of the Constitution negatively provides the qualification for membership of Parliament. This Article is quite simple and reads as follows: “84. Qualification for membership of Parliament – A person shall not be qualified to be chosen to fill a seat in Parliament unless he – (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age, in the case of a seat in the House of the People, not less than twenty-five years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.”

[xxxiii] The Court also suggested that “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” and  “if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will…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.”

The merits of these suggestions are certainly reviewable.

[xxxiv] Manza, J. and Uggen, C., 2006. Locked out: Felon disenfranchisement and American democracy. Oxford University Press, USA.

[xxxv] “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”

[xxxvi] Fletcher, G.P., 1998. Disenfranchisement as punishment: Reflections on the racial uses of infamia. UClA l. reV.46, p.1895.

[xxxvii] Id.

[xxxviii] Id.

[xxxix] Supra note 1.

[xl] Ewald, A., 2002. ‘Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the United States. Wisconsin Law Review, pp.1045-1132.

[xli] Id.

[xlii] 1974 AIR 555

[xliii] A good example is Air India Etc. Etc vs Nergesh Meerza & Ors.  1981 AIR 1829 where the Supreme Court held that terminating employment upon first pregnancy was arbitrary, but terminating it upon the third pregnancy was not!

[xliv] Rajbala & Others v. State of Haryana & Others, Writ Petition (Civil) No. 671/2015, delivered on 10/12/2015

[xliv] (Act 8 of 2015).

[xlv] Federation of Hotels and Restaurants Association of India v. Union of India, 1988 AIR 1291.

[xlvi] Shapiro, Andrew L. “Challenging criminal disenfranchisement under the Voting Rights Act: A new strategy.” Yale Law Journal (1993): 537-566.

[xlvii] 395 U.S. 621

[xlviii] 2009 (11) SCALE 278

[xlix] Rajbala & Others v. State of Haryana & Others, Writ Petition (Civil) No. 671/2015, delivered on 10/12/2015

[l]To undertake such an examination would amount to virtually importing the doctrine of “substantive due process” employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation…even in United States the doctrine is currently of doubtful legitimacy. This court long back in A.S. Krishna & Others v. State of Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution…”

[li] “Section 21. Functions and duties of Gram Panchayat.—Subject to such rules as may be made, it shall be the duty of the Gram Panchayat within the limits of the funds at its disposal, to make arrangements for carrying out the requirements of sabha area in respect of the following matters including all subsidiary works and buildings connected therewith:– XI. Non-conventional Energy Sources- (1) Promotion and Development of non-conventional energy schemes. (2) Maintenance of community non-conventional energy devices, including bio-gas plants and windmills. (3) Propagation of improved chulhas and other efficient devices. XXI. Social Welfare including Welfare of the Handicapped and Mentally Retarded- (1) Participation in the implementation of the social welfare programmes including welfare of the handicapped, mentally retarded and destitute. (2) Monitoring of the old age and widows pension scheme.”

[lii] See Behrens, A., Uggen, C. and Manza, J., 2003. Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–20021. American Journal of Sociology109(3), pp.559-605.

[liii] Two preliminary points may be noted. The reason why there was “no opportunity” for the parties to collect data was because the Ordinance was introduced four days before the announcement of the election program (in late December), and the elections itself were to take place through the month of January. It was the State that chose to promulgate the Ordinance literally days before the elections. In effect, the Court’s holding that the parties had no time to prepare data for a proper hearing was entirely the State’s fault, which the Court then allowed the State to benefit from by refusing to stay the disqualification provisions. This is bizarre logic and flies in the face of the basic legal principle, that no man (including the State) ought to benefit from their own wrong.

Secondly, it is hard to understand what data the Court needs apart from the following (most of which was provided to it): the population of Rajasthan at the last census, overall literacy rates, urban literacy rates, rural literacy rates, and urban-male, urban-female, rural-male and rural-female literacy rates. The degree of exclusion, and its gendered nature, will be abundantly clear from these figures, and was specifically argued before the Court.

[liv] As the historian Alexander Keyssar notes, in his magisterial account of the history of the right to vote in the United States, property and/or literary qualifications were consistently used to constrict the scope of the right to vote, excluding, at various points, landless labourers, women and blacks.

[lv] Supra note 1.

[lvi] Id.

[lvii] Id.

[lviii] Id.

[lix] ironically, Mill had endorsed the disenfranchisement of the illiterate

[lx] BR Ambedkar clarified the ambit of clause (c) by suggesting that it was intended to cover “bankruptcy, unsoundness of mind, residence in a particular constituency and things of that sort”.

[lxi] Muhammad Nasir Mahmood and another v. Federation of Pakistan CONSTITUTION PETITION NO. 1 OF 2008

[lxii] Rajbala & Others v. State of Haryana & Others, Writ Petition (Civil) No. 671/2015, delivered on 10/12/2015

Advertisements
This entry was posted in Articles and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s