Haryana Panchayati Raj (Amendment) Act, 2015
On December 11, 2015, the Supreme Court has upheld the Haryana Panchayati Raj (Amendment) Act, 2015 that disqualified sizeable segment of the population from contesting Panchayat elections. The state law was challenged under via Rajbala v. State of Haryana case.
Key features of the law
The amended state Panchayat Raj Act barred five categories of people from contesting Panchayat elections. These were:
- Persons who are charged in a criminal case for an offence that could be punished with imprisonment for not less than 10 years.
- Those who defaulted on agriculture loans.
- Persons with outstanding payments of electricity bills.
- Those who do not have the minimum specified education qualification.
- Those who do not have a functional toilet at their residence.
The minimum education qualification to contest Panchayat poll is Class X for general candidates, Class VIII pass for women and Dalits, Class V for Dalit women. We note here that in Haryana, 41 per cent of Scheduled Caste men have not passed class VIII; and 68 per cent of SC women have not made it to class V. Around 45 percent of rural households do not have a toilet and that figure roses to 55 percent among SC households.
Other States with Similar Law
Rajasthan is the first state to brought minimum qualification of Class X for contesting the Zilla Parishad or Panchayat Samiti polls, Class VIII to contest Sarpanch elections, and Class V for scheduled areas. The candidate should not suffer from leprosy. In Bihar, toilet in house is mandatory for contesting in Panchayat polls. In Andhra Pradesh, hearing and speech impaired, and leprosy patients cannot contest for Panchayat elections. Odisha also enacted similar criterion where no hearing, speech impaired, tuberculosis or leprosy patients are allowed to contest. In Karnataka, toilet at home is must or the candidate must give written undertaking to build it within one year. In Maharashtra, to contest for Panchayat election, the candidate cannot have more than two children and the state also disqualifies those who defecate in the open. In Gujarat and Chhattisgarh, toilet at home is must to contest for elections.
On what grounds the law was challenged?
A brief discussion about various grounds on which the law was challanged is as follows:
The anomalous condition
Constitution of India has not prescribed any educational qualification to contest for the Parliament and the State Assemblies. The Haryana law creates an anomalous situation where a person who cannot contest in Panchayat election can contest for the elections for MP and MLA. Although better educated people should be part of the political system, more ground reforms are required before implementation of such law. Thus, the root cause of the issue is a strange anomaly in our Constitution.
Violation of Article 326
Article 326 of the Constitution stipulates that elections must be conducted on the basis of adult suffrage. In its previous judgements, the Supreme Court concluded that the right to contest elections is a constitutional right. A constitutional right can be curtailed only on the grounds specified in the constitution. It cannot be taken away by statutory laws.
Violation of Article 14 under Fundamental Rights
The right to vote and contest do not find a place in the list of fundamental rights. But the Haryana Law was challenged under Article 14 (Right to Equality). Under Article 14, whenever any law creates a two class of persons, the classification must be reasonable. Now the question is whether the minimum education qualification is a reasonable criterion to create two classes of people. The argument was that the law without examining any evidence on the actual functioning of the Panchayati Raj institutions on the ground had disenfranchised a large section of the population. It is wisdom that plays a greater role than education at local governance level, especially villages. Further, possession of minimum education depends on several factors such as existence of proper schools, availability of teachers etc. The state has no right to disqualify a person for the inadequacies or inefficiencies in the proper provisioning of these.
Arguments against toilets
The argument was that the rural indebtedness is primarily structural. It can be because of a crop failure from bad monsoon. The same is true for having toilet at home which is also a function of the availability of money and land. A substantial section of the rural population lacks even proper pucca housing despite the government’s efforts to provide them. The poor can hardly be blamed for not having a proper toilet at home.
Supreme Court Verdict
The court observed that there is nothing irrational or illegal in prescribing minimum education for contesting elections and possession of basic education would enable the candidates to effectively discharge their duties. Education gives the power to the human being to discriminate between good and bad, right and wrong. Regarding the other eligibility conditions of clearance of electricity bills and agriculture loans, the bench observed that the conditions were similar to insolvency that rendered people to contest any election. On the condition of having toilet at home, the bench said the primary duty of any civic body was to maintain sanitation. The elected representative should become an example for other people.
The court also said that there is nothing wrong in having such conditions as the Constitution itself had imposed limitations in contesting the election to the posts in the Parliament, the Assemblies, or the offices of the President and Vice-President.
Way forward
Currently, the new qualifications have disenfranchised 68% of Dalit women and over 50% of all women from contesting Panchayat elections. The civil society is still vociferous against the law. They say that state instead of empowering these communities is now penalising them by disenfranchising them. The process of empowerment is not just the right to vote but also to contest elections and thereby raise the voice of the marginalised.
