“If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas…We can only hope that the country will throw up such men in abundance.”
Dr. Rajendra Prasad on 26th November, 1949 before putting the motion for passing of the Constitution of the floor.[i]
A person who aspires to contest elections in India, whether by elections or by nomination, must be qualified, and must not be disqualified, under the Constitution or under any law for such membership. Qualifications are those positive attributes of a person which make him eligible to occupy a particular position, post or public office. Disqualifications, on the other hand, are those negative aspects of a person which militate against his occupying such position, post or public office.[ii] Qualification and disqualification for becoming a member of the Parliament is provided under Article 84 and Article 102 respectively and under Article 173 and Article 191 respectively under the Constitution of India for becoming a member of the State Legislature. Further statutory disqualifications are also provided in the Representation of People’s Act, 1951. Article 102 provides that a person shall be disqualified from being member of either House of Parliament if the person holds any office of profit under the Government, if he is of unsound mind, if he is an undischarged insolvent, if he is not a citizen of India or if he is disqualified by or under any law made by Parliament. Article 191, also provides for the same set of disqualifications for contesting elections in the State Legislature. All these disqualifications show that the purpose is to maintain the integrity of the electoral process. These disqualifications aim at avoiding a clash between the duties and interests of an elected member so that purity of the legislature remains unaffected.[iii]
Article 243F (1) of the Constitution of India provides for disqualifications to contest the Panchayat Raj Elections and it reads as follows:-
- A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-
- 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;
- If he is disqualified by or under any law made by the Legislature of the State.
The essay aims at analyzing this discretionary constitutional power conferred upon the State legislature to provide disqualifications for Panchayat Raj Elections. The Essay analyzes every aspect of the Haryana Panchayati Raj (Amendments) Act,2015 passed by the State Government and the judgment rendered by the Supreme Court on 10th December on the grounds that firstly, the intention of the legislature was not to choose the competent person but to choose someone who can express the will of the people. Secondly, the essay aims to assess the anomaly of treating right to vote and right to contest election as two different issues different and tries to establish that these two are interlinked with each other. Thirdly, the Essay aims to show that how the State by virtue of its power under Article 243F of the Constitution of India violates Article 14 of the Indian Constitution bringing into light the arbitrariness test which was considered as an antithesis to equality[iv] and aims at keeping in control the majoritarian democracy. Fourthly, the Essay aims at understanding the purpose behind the 73rd Constitutional Amendment and how the Haryana Panchayati Raj Amendments as well as affirming of the same by the Supreme Court makes the purpose of the 73rd otiose by disqualifying three fourth of the population from contesting elections. Lastly, it argues that the State has breached its constitutional power under Article 243 F of the Constitution of India by infringing upon Article 15 of the Constitution of India.
As Haryana passed the Haryana Panchayati Raj Amendment Act 2015, questions loom large over the extent to which State’s powers to disqualify a person form contesting democratic elections exists. As the discretionary power of the State under Article 243F of the Indian constitution remains unspecified and has been left to the wisdom of the State, fears of this discretionary power leading to arbitrariness have arisen. The new addition to Section 175 of the Haryana Panchayati Raj Amendment Act,1994 which provides for no. of disqualifications to contest the election to any one of the offices under the Act[v] reads as follows:-
(t) Fails to pay arrears of any kind due to him to any primary Agriculture Co-operative Society, District Central Co-operative Bank and District Primary Co-operative Agriculture Rural Development Bank; or
(u) fails to pay arrears of electricity bills; or
(v) has not passed matriculation examination or its equivalent examination from any recognized institution/board;
Provided that in case of a woman candidate or a candidate belonging to Scheduled Caste, the minimum qualification shall be middle pass;
Provided further that in case of a woman candidate belonging to Scheduled Caste contesting election for the post of Panch, the minimum qualification shall be 5th pass; or
fails to submit self -declaration to the effect that he has a functional toilet at his place or residence.
After the said Act was passed, three petitioners challenged the Act by filing a writ petition in the Supreme Court on the grounds that it is violative of Article 14 of the Indian Constitution as the amendments are arbitrary and unreasonable in nature. The said Amendments, as claimed by petitioners create unreasonable restrictions on the right of voters to contest elections and create an artificial classification among the voters and also there is no reasonable nexus between the classification and the object to be achieved by the legislature.
The Supreme Court rejected the petition and upheld the validity of the said Amendments to the Haryana Panchayati Raj Act, 1994. Before the analysis and far reaching implications of the said judgment is taken up for discussion, it is important to note down some important points made by the Supreme Court with regards to education.
- It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Thus, the prescription of minimum education criteria is not irrelevant for prescription of minimum education criteria.
- While rejecting the argument on no. of persons who will be disqualified from contesting elections by the said impugned Act, the Supreme Court in Para 86 notes down that the Question is not their number but a constitutional assessment about suitability of persons belonging to those classes to hold constitutional offices.
The Supreme Court recognizes that 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 and further adds that since there exists an intelligible differentia and a nexus between the classification and the object to be achieved, the provision is valid. The Supreme Court strikes chord with the argument of the Attorney General that the nexus is reasonable one as one of the functions of the Gram Panchayat is to promote education and if the leaders are educated themselves, they would prove to be good administrators and would be an example before the rest of the population. The Court commits a fallacy here because the question is not whether the most ‘competent’ person is chosen or not but the question is whether the person who is chosen is according to the will of the people. In a truly representative democracy, voters determine the qualities that are most important in those they elect. The Supreme Court in the case of S. Narayanaswami v. G. Panneerselvam[vi] held that,
“The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents… it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge, experience, and wisdom which satisfy certain standards. It may well be that the Constitution makers, acting upon such a presumption, had intentionally left the educational qualifications of a candidate for election from the graduates constituency unspecified.”
In the case of Inspector of Police and ors v. Battenapatka venkata Ratnam and ors[vii],it was held that the State must not only show intelligible differentia and rational nexus but also legitimate purpose. Thus, as far as elections are concerned, it cannot be the legitimate purpose to choose the most competent person. The belief that those who have no formal education are incapable of governing and representing their needs or that those who have higher education somehow become ‘model political representatives’ incapable of corrupt practices by virtue of their financial conditions smacks of its classist prejudices.[viii] In the case of People’s Union for Civil Liberties vs. Union of India[ix] while deciding on requirement of MLA or MP election candidates to disclose their educational qualifications, it was observed as follows:
“Consistent with the principle of adult suffrage, the Constitution has not prescribed any educational qualification for being Member of the House of the People or Legislative Assembly……. To think of illiterate candidates is based on a factually incorrect assumption. To say that well educated persons such as those having graduate and post-graduate qualifications will be able to serve the people better and conduct themselves in a better way inside and outside the House is nothing but overlooking the stark realities……… Much depends on the character of the individual, the sense of devotion to duty and the sense of concern to the welfare of the people. These characteristics are not the monopoly of well educated persons.”
On the one hand, the court recognized that the right to vote and the right to contest an election are integrally linked and that one flows from the other, and yet it has held that the right to vote in an election is based on adult universal franchise but the right to contest an election is not a universal right. But what is the universal right given to every citizen to vote without the concomitant right to contest an election and the right to choose a candidate of one’s choice?[x] The problem is hinged on as to how the two rights, i.e. the right to contest and the right to vote are seen where, right to contest is treated as a statutory right and right to vote as a constitutional right. The fact is that these two rights are interrelated and one right without the other is meaningless. Even if it were to be accepted that these two rights are different in its character where one is a statutory right and the other a constitutional right and wherein the legislature has the power to prescribe constraints on the right to contest elections, the power of the legislature under Article 243 F of the Indian Constitution shall not take over the constitutional guarantees which is the idea of Universal Adult Franchise. The Court has gone wrong in not protecting the constitutional right of a person to vote in the democratic elections. By this measure, panchayati raj—an institution designed for providing the much-needed mechanism of self-rule at the local levels—stands eroded in spirit and substance.[xi] By creating two classes of citizens, one which can vote but not govern and the other which can do both, the judgment reduces franchise to a mere statutory privilege which can be subject to the whims of those who hold political power.[xii]
The Petitioners challenged the Amendments on the ground of arbitrariness and hence violative of Article 14 of the Indian Constitution. The Court rejected the arbitrariness test by saying that it is not permissible for this Court to declare the law as unconstitutional. The Court committed a fallacy here by basing its justification upon AP v McDowell[xiii] whereas the Court in McDowell case seems to suggest that arbitrariness is not completely ruled out but mere formulation of something being ‘arbitrary’ is meaningless: the issue of why something is arbitrary must depend on constitutional analysis. What the Court said was, “Some or other constitutional infirmity…” is needed.[xiv]
The Court also recognizes the case of Malpe Vishwanath Acharaya v. State of Maharashtra[xv], wherein a Bench clearly leaves the door open for challenging the validity of the laws on the basis of it being arbitrary in nature. Thus, the Court has clearly rejected the test of arbitrariness by considering it irrelevant and only relies upon the intelligible differentia and reasonable nexus test. What the Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme.[xvi] It is true that the reasonable nexus test rules the roost for Article 14 but it is this ‘arbitrariness test’ that keeps a check on both the object as well as the mode of achieving the object. As argued by Gautam Bhatia, a legal scholar, the classification test is empty and almost circular – any classification can be defended by producing some purpose with which it bears a rational nexus. Therefore, all that it achieves is to prevent governmental opacity – the State has to produce some justification, and the very requirement of making its reasons public will, in some sense, constrain the kinds of purposes it puts forth. By putting forth the contention that the Amendments aims to promote sanitation, educational facilities, financial regularities of a person contesting elections, the State might be able to establish a reasonable nexus but as considered in the EP Ropyappa v. State of Madras[xvii] case, that the test of arbitrariness should also be included and if the Court had not outrightly rejected this test , it would have realized that reasonable nexus hits directly at one of the core fundamentals of a democracy i.e. a citizen’s right to vote.
Gautam Bhatia, notes down two important points from Justice Chelameshwar’s dissenting opinion in the NJAC Judgment:-
- The first is that the admission that the right to participation in the electoral process is part of the basic structure. This would mean that restrictions upon participation in the electoral process must can only be justified through very strong reasons, and in a way that the core of the basic feature – democracy – is not damaged.
- Justice Chelameshwar suggests that age is a reasonable restriction on Article 326 as a belief is that a certain maturity is required before contesting elections.
But, it is argued that education, debt disqualifications place a group of people in a position of perpetual minority deeming their class or socio- economic status to disqualify them from acting as responsible participants in the process of governance.[xviii]
Thus, Justice Chelameshwar recognizing that elections are a part of basic structure of the Constitution and that reasonable restrictions can be imposed on the same, a high burden lies on the shoulders of the State to show the reasonableness as well as non-arbitrariness of the said Amendments.
Referring to the Constituent Assembly Debates, it is clear that the educational requirements go against the concept of Universal Adult Franchise. The opponents felt that illiterate population would fail to exercise its choice in the correct manner and supporters relied on the fact that democratic legitimacy is founded upon popular sanction.
SECC data would show that about 61.24 % population would not be able to meet the criteria of 8th pass, and 74.17% population would not be able to meet the criteria of matriculate pass as envisaged in the impugned ordinance, therefore excluding almost three fourths of populations of the state of Haryana from being eligible to contest for becoming a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad.[xix]. According to the census, 31.4% of households in the state do not have access to toilets. Of the nearly three million rural households in the state, 42.3% defecate in the open. At the same time, the Court has equated inability to pay electricity bills with the concept of insolvency which is totally different. One wonders how the Court has ended up placing these two on equal footing.
The Supreme Court turns a blind eye to the far reaching implications of the said disqualification where a large no. of people will be disqualified from contesting elections. The Judgment relies upon the ‘wisdom’ of the State government that would have kept the ultimate benefit of the people in mind. Ronald Dworkin suggests there is a difference between goals/policies and rights. The legislature has the power to set up the polity’s goals while the Court’s task is to ensure that in pursuing these goals the government does not infringe on rights. The Supreme Court in the case of Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors[xx]has held that a legislation is not valid merely because there is reasonable classification and that it has rational relation with the object but a legislation would prove to be unconstitutional if it results in discrimination of one section of minority, even if the legislation passes muster under Article 14. The said Amendments passed by the State are unconstitutional as it results in discrimination of those people who, due to socio- economic backwardness, have not been able to fulfil the criteria specified by the State Government in the Act. While interpreting the statutory provisions, Courts have to be mindful of the consequence of disqualifying a candidate from being chosen……. The Court has to bear in mind that, what is at stake is the right to contest an election……. A practical view, not pedantic basket of tests must therefore guide the Courts to arrive at an appropriate conclusion.
At this point it is important to take into consideration the relevant part from the Statement of Object and Reasons of the Panchayati Raj Act, 1994 which reads as follows:-
Though the Panchayati Raj Institutions have been existence in the country for a long period, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies due to a variety of reasons including absence of regular elections, prolonged supersessions, inadequate representation of weaker sections like Scheduled Castes and women, insufficient devolution of powers and lack of financial resources.
In the case of Dulari Devi and Others v. State of Rajasthan and Others[xxi], it was observed by the Court that State of Rajasthan where the literacy rate as well as opportunities of formal education is very little low, prescription of education for contesting elections is violative of right to equality under Article 14 of the Indian Constitution. The Panchayati Raj Institutions foster democratic principles of governance at the grass root level. The Court noted down that Article 40 in Part IV (Directive Principles of State Policy) which provides for an organisation of village panchayats puts an obligation on the State to take steps to organise village panchayats and endow them with such powers and authority as may be necessary, to enable them to function as units of self-government. The entire body of villagers are given rights to participate in the meetings of the Panchayat for inclusive self -governance, self -rule and self -determination for social upliftment, which is not dependent on any educational qualification. 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 self -governance, except for disqualifications, which have material object to achieve, such as the character, integrity or morality of the person to represent. In order to lead in a democratic governance, a person is required to understand the needs of social development and require the mental attribute of being wise in the estimation of the people, who elect her for representation.
The State by imposing such restrictions makes the 73rd and 74th Amendments, a farce whose basic purpose was to strengthen the people living in rural areas by giving them an opportunity to rule themselves.
The impugned ordinance, is violative of Article 15 of the Constitution. That Article 15 not only provides that the State shall not discriminate against any citizen on grounds only of sex, but Article 15 (3) also provides that nothing in the said Article shall prevent the State from making any special provision for women and children. It is submitted that, the parliament in its wisdom has brought in the 73rd Constitutional amendment, whereby Article 15 (3) has been further given expression in terms of providing 50% reservation for women in Panachyati Raj Institutions vide Article 243D. Moreover the data stated herein above also indicates that female illiteracy is very high in Haryana. Thus, in such circumstance, the impugned ordinance makes the special provision of reservation for women an otiose and a large segment of women would be disqualified to contest election and would not be able to reap the benefits of special provisions made in their favour.[xxii]
The Court’s justification for affirming such disqualifications arises from the decision of this Court in the case of Javed v State of Haryana[xxiii] wherein a person having more than two children was barred from contesting elections, the Court in the above mentioned case observed that family planning is one of the objectives of the Haryana Panchayati Raj Act, 1994, thus the classification has a reasonable nexus.
In Odisha, Maharashtra and Gujarat, too, persons having more than two children are debarred from contesting panchayat elections. In the case of Gujarat, the Gujarat Municipalities Amendment Act, 1963, disqualifies a person from continuing as a municipal councillor if he or she has more than two children.
In the case of Assam Municipal Act 1956 , it was prescribed that a voter should be a law graduate as well as should have paid the tax to qualify for voting in the Municipal elections. In the case of S. Rana v S.D.M.,[xxiv] these qualifications were held to be valid. It is evident that the constitutional power guaranteed to the State under Article 243 F has been breached several times.
Article 243-F(1)(a) mandates that the disqualifications for an MLA and a panchayat member should be the same under the Constitution and the Representation of the People Act, 1951. A serious questions which arises henceforth is, Does the Haryana law and the other State’s Panchayat Law not create an anomalous situation that a person facing disqualification in Panchayat elections can contest the elections for MP and MLA?[xxv] The answer to this question and many more still remain.
The State while exercising its discretion under Article 243 F of the Constitution cannot breach the constitutional provisions and the fundamental rights guaranteed to every citizen which are the very foundation of democracy. There is an urgent need to put some more clarity on the definition of a reasonable classification as well as the object sought to be achieved. The whole spirit of 73rd and 74th Constitutional Amendment Act which is to ensure democratic decentralization on the Gandhian principle of participatory democracy and acquiring the necessary status and function with dignity by inspiring respect of common man[xxvi] will be lost.
This post has been authored by Krutika Goyal, 2nd Year student at the Gujarat National Law University, Gandhinagar. The essay was the 2nd prize winning essay of the Fourth D.D. Basu Essay Competition.
[i] ‘Electoral Disqualifications’, 244th Law Commission Report, accessed on January 29, 2016, http://lawcommissionofindia.nic.in/reports/report244.pdf.
[ii] V. S. Rama Devi and S. K. Mendiratta, How India Votes (Election laws, practice and procedure), (2013) 356-7.
[iii] SC Raju v. V.P. Kumar Dev, AIR 1992 SC 1959.
[iv] AIR 1974 SC 555.
[v] ‘Haryana Panchayati Raj (Amendment) Act 2015’, accessed on January 31, 2016, http://www.harpanchayats.gov.in/hidden/-/asset_publisher/BIldmM0nyFKQ/content/haryana-panchayati-raj-amendment-act-2015/5579304.
[vi] AIR 1972 SC 2284.
[vii] AIR 2015 SC 2403.
[viii] Rajgopal Saikumar, “Uprooted from Democracy: Rajbala v. State of Haryana”, The Hindu, December 31, 2015, accessed on January 30, 2016, http://www.thehinducentre.com/the-arena/current-issues/article8049649.ece.
[ix] 2003 (4) SCC 399.
[x] Indira Jaising, “A Judgement on Democracy that is Frightening in its Implications”, The Wire, December 11, 2015, accessed on January 30, 2016, http://thewire.in/2015/12/11/the-supreme-courts-judgement-is-frightening-in-its-implicatons-17131/.
[xi] Megha Bahl and Sharmila Purkayastha, “Contempt of People”, Economic and Political Weekly, December 19, 2015, accessed on January 30, 2016, http://www.epw.in/journal/2015/51/letters/contempt-people.html#sthash.M9vUqbVx.dpuf.
[xiii] AIR 1996 SC 1627.
[xiv] Mihir Naniwadekar, “The Rejection of the Arbitrariness Doctrine in the Panchayati Raj Judgment”, Indian Constitutional Law and Philosophy, December 31, 2015 accessed on January 29, 2016, https://indconlawphil.wordpress.com/tag/arbitrariness/.
[xv] (1998) 2 SCC 1.
[xvii] AIR 1974 SC 555.
[xviii] Gautam Bhatia, “Ambedkar on Citizenship And The Right To Hold Office under the State”, Indian Constitutional And Legal Philosophy, November 11, 2015, accessed on January 30, 2016, https://indconlawphil.wordpress.com/category/local-government-panchayati-raj/.
[xix] ‘PIL: PUCL v. State of Haryana and Ors.’, accessed January 29, 2015, http://pucl.net/wp-content/uploads/2015/09/PUCL_PIL_Punjab_Haryana_Panchayat-Ordinance_Aug-2015.pdf.
[xx] 1973 1 SCC 500.
[xxi] AIR 2015 Raj 84.
[xxiii] AIR 2003 SC 2507.
[xxiv] T.K. Rajalakshmi, “Controversial Ordinance On Local Elections”, Frontline, January 23, 2016, accessed on January 29, 2016, http://www.frontline.in/the-nation/controversial-ordinance-on-local-elections/article6756559.ece.
[xxv] Barkha Deva, “Big Questions For Our Generation”, The Hindu, December 21, 2015, accessed on January 30, 2016, http://www.thehindu.com/opinion/lead/big-questions-for-our-generation/article8011048.ece?ref=relatedNews.
[xxvi] Bhanumati v. State of UP  7 SCR 585.