It is unfortunate that the Supreme Court upheld the BJP-ruled Hayana government's attempt to debar certain citizens from standing for Panchayat elections.

Eyebrows will be raised when one finds that the post of Governor has the least qualifications prescribed under the Constitution. To become a Governor, one must have completed 35 years of age. An added disqualification for the post of the President of India is he should not be of unsound mind and an insolvent. All constitutional posts except those pertaining to the higher judiciary do not have any educational qualification to hold the post.

However, the Supreme Court in the Rajbala vs. State of Haryana case (Dec. 2015) >upheld the validity of the Haryana Panchayati Raj (Amendment) Act requiring that a matriculate alone can hold the post of Panchayat president or ward member. Section 175 of the Act provides for a number of disqualifications from contesting a Panchayat election. A person will be disentitled to contest the election if he faces a criminal case for which 10-year imprisonment is prescribed and a charge has been framed. If he has to pay arrears to a co-operative society or has not cleared electricity bills, then also he will be disqualified. If a person does not have a functional toilet, he will be barred from contesting the election. These amendments made by the Bharatiya Janata Party government in Haryana take us back to the days of district boards of the thirties when the landed gentry alone were eligible to hold posts in local bodies.

Strange logic of exclusion



The Supreme Court adopted a strange logic while upholding these disqualifications. It held that 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”.

K. Chandru K. Chandru

It did not matter to the Court that out of 96 lakh eligible voters, 42 lakh will be disqualified from contesting the elections. In case of Scheduled Castes, 68 per cent women and 41 per cent men will be disqualified from contesting.

The Court upheld the law by saying: “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.”

> Also read: Questions aplenty on Haryana panchayat poll law

Take past as precedent



It failed to note as to why the framers of the Constitution did not think it fit to include educational qualification as a basic requirement for the Members of Legislative Assemblies and Parliament. The judges themselves were appointed by the President of India, for which post itself no educational qualification is required. Article 171 provides for the composition of Legislative Councils in a State. It makes separate constituencies of graduates to elect members to the Legislative Council. It is obligatory to be a graduate to elect a certain proportion of members of the Legislative Council, but it is immaterial if the person elected is a graduate. The Supreme Court ruled in the S. Narayanaswami vs. G. Panneerselvam case in 1972: “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.”

For better part of the last 70 years, Tamil Nadu was ruled by at least seven Chief Ministers who were not matriculates. Many functionaries, both at the Centre and in States, have not completed school. It is by a 2002 constitutional amendment that education has been made compulsory for all children up to the age of 14 years. The law giving effect to the provision was brought in some years later. Under that law, it is compulsory to educate children only up to class 8. The law made by Haryana is really anti-poor, anti-Dalit and pro-rich and if enforced will create oligarchies.

Strange is the logic of disqualifying persons in arrears to electricity boards and cooperative societies. Non-payment of electricity charges will result in disconnection of supply and there may be disputes regarding service deficiency. How is such a condition to be made a disqualification?

Similarly, when people do not have their own shelter, insisting upon a functional toilet is a clear case of excluding the poor from the management of Panchayats. It is a duty of the Municipalities under Article 243W to provide for public conveniences. In the case of Panchayats, no reference is made to public conveniences and Article 243G only provides for panchayats to take care of health and sanitation. Crores of public and private funding have gone into providing for toilets in rural areas after taking note of lack of such facilities. Even today rural houses are given planning permits even when they have no provision for toilets in the plans.

A decade ago, a Haryana law making the two-child norm a requisite qualification for standing in elections was upheld by the Supreme Court ( Javed vs. Haryana, 2003).

The BJP-ruled States are experimenting with the Panchayat laws to make them elitist political institutions. It is unfortunate that the Supreme Court should uphold these provisions and make Panchayats non-representative bodies.

The fundamental flaw is due to courts holding the right to get elected as a statutory right and not a constitutional empowerment.

(K. Chandru is a retired judge of the Madras High Court.)