The Supreme Court’s judgment upholding the Haryana’s Panchayati Raj (Amendment) Act 2015 is wrong — anti-poor, anti-people, anti-women and elitist. Coming as it from Justice Chelameswar, a progressive and balanced judge, it provokes surprise. Justice Sapre provided a supporting judgment on some of the disqualifications by observing "education is must" and "functional toilets" are a good thing.
Is the SC joining PM’s Swachh Bharat campaign: and I assume, that the toilets of the judges and bureaucrats in India are generally plumber free most of the time. Does functioning toilets mean an election can be challenged if, on the date of nomination, the toilet built on bricks in the fields is not-functional?
The first leg of Justice Chelameswar’s judgment enters into several futile controversies as to whether the right to vote and perforce the right to contest elections (which I will call electoral rights) are constitutional or statutory rights. The purpose behind making this constitutional/electoral distinction is that if it is statutory the legislature has greater leeway to infringe and restrict these rights. The Supreme Court’s position on this has hitherto wavered but does have clarity. It certainly did not require the huge discussion resulting in what was already settled. In the PUCL (candidate’s duty to disclose relevant information) case (2003), the court called electoral rights not fundamental but constitutional rights — a view followed by the DDMK case (2013) — echoing an earlier view in the Jyoti Basu case (1982) that it is not a statutory right, pure and simple. This should have closed the controversy.
There are constitutional rights (other than fundamental rights) like the right to property (Article 300A) which have been given great substance by the court. Unfortunately, this judgment does not elaborate the implications of electoral rights being constitutional rights. In the property case, the Supreme Court excelled itself by comprehensively laying down important principles. The essential distinction is that in election petition cases, the only "law" to be examined was statutory but in cases having constitutional implications, such as basic electoral rights, the entire considerations are not just of a statutory nature.
Justice Chelameswar ignored this fundamental distinction in holding that the right to vote and contest recognised are electoral rights (pr 31), but eventually recognising that “every citizen has a constitutional right to elect or be elected Parliament or state legislatures” (pr 40), subject to qualificatory and disqualificatory conditions, mercifully extending at least this constitutional courtesy to Panchayat elections. But, surely these imposed conditions cannot be arbitrary or discriminatory. But having come this far, the judgment derails itself.
The derailment was that having established electoral rights as constitutional rights, it treated them as statutory rights without giving weight to their constitutional status. The first step of derailment is the view that an enactment cannot be declared unconstitutional on the ground it is arbitrary! Good grief why not? If a statutory qualification is discriminatory and breeds arbitrariness of content and empowerment that is surely a consideration. The excuse that courts do not make value judgments (pr 45) is simply pretence — an excuse rather than a reason, almost an abdication of judicial responsibility.
Now look at the effect. The Bhagwati test for infringement in Maneka Gandhi’s case is the “direct and inevitable” test. Applied to this case, it is clear the effect will be that a large number of people will get disenfranchised. The government has to justify whether the classification used by the statute is arbitrary, unreasonable and discriminatory. This test under article 14 (equality) is always available. Even in the liquor cases, where Khoday’s case (1995) ruled that the business in liquor is not constitutionally protected, the equality (Article 14) was available. Article 14 applies against statute and administrative exercise.
On the education test, the judgment recognises that Haryana’s population is 1.65 crore, of which 96 lakh (58 per cent) can vote. Of these only 57 per cent have the minimum education qualification to contest (that is about 50 lakh). So, the educational qualification would disqualify the rest from contest. Wow! And all because education enriches democracy and the poor uneducated are anathema to democracy, including women who have to be educated till class five. From SC/ST 68 per cent of SC women and 41 per cent of men cannot contest. The educated middle class have an edge in the mind of the electorate because of the statutory exhortation to prefer the educated.
The second major disqualification is non-payment of electricity or cooperative bodies’ bills. Of course, in Parliament and state elections, insolvency is a disqualification. But it has to be determined by a court. Refusing to factor in rural indebtedness properly, these provisions were also upheld with the saving grace that an aspirant can make payments under protest and seek adjudication forum. Another wow!
The third category of disqualification is not having a functional toilet in a state that has 8.5 lakh house holders (at least double to include women) below the property line. The reason for upholding the disqualification is that those forced to defecate outside their houses spread diseases. Right-wing Niall Furguson is invoked for the stink in 15th century London! It is not clear what the basis of this judgment is. Is the legislation incentive based? Quite clearly not, because of its immediate disqualificatory effect. Get a functional toilet, make sure it works to contest elections. Get educated or lose your democratic rights. Don’t borrow money. If you do, pay the loan or appear to do so. This judgment deserves a review.