In December 2014, the government of Rajasthan passed an ordinance making certain educational qualifications a necessary pre-requisite for contesting Panchayat elections in the State. The ordinance was passed merely days before the elections were scheduled. Urgent challenges to the ordinance’s constitutionality before the Rajasthan High Court and the Supreme Court met with no success. The elections went ahead under the new rules, and the issue of constitutionality is still pending before the Rajasthan High Court.



Now, another similar controversy has sprung up in Haryana. Following Rajasthan, Haryana also passed an ordinance requiring – among other things – educational qualifications for Panchayat candidates. On August 22, the Chandigarh High Court stayed it. Two weeks later, the Haryana assembly passed the Panchayati Raj Amendment Bill, in substance converting the Ordinance into an Act. The next morning, it announced the schedule of the elections.



The reason for this – clearly – was that once the schedule is announced, the election process is deemed to have been set in motion, and according to the Indian Courts, may not be stayed until completion. Nonetheless, on Thursday, September 17, the Supreme Court stayed the election; arguments will continue on Monday.



Discriminatory moves



What the states of Rajasthan and Haryana are doing is fiercely controversial. Critics have argued that educational qualifications are discriminatory, and “abrogate their constitutional right to contest elections.” They contend that in light of low literacy levels, such laws are especially slanted against the rural poor. Others have pointed out their gendered impact, which will act to exclude women on a much larger scale than men.



The contention that literacy requirements are designed to exclude already marginalised groups from the political-democratic process is neither new, nor limited to India. 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. The link is not difficult to spot: access to education is mediated by socio-economic status. The constituency that has not received a basic formal education is most likely to be overwhelmingly poor (economic reasons), female (social and economic reasons), and migrant.



Nonetheless, the Indian Supreme Court has consistently declined to hold that voting (and, by extension, running for office) is a “constitutional” right. The Court has repeatedly stated that it is (albeit “anomalously”) a pure statutory right, created by law and therefore regulated by it. In an analogous case in 2003, called Javed vs State of Haryana, the Supreme Court upheld a law that restricted the right to hold an elected Panchayat position to persons with two or fewer children. Responding to a challenge under Article 14 of the Constitution, the Court held that



“one of the objects sought to be achieved by the legislation is popularising the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness.”



Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny, which permits reasonable classification.



Promoting literacy?



One can easily see how a similar argument could be invoked here, on the ground that the “objective” of Rajasthan and Haryana’s ordinances and laws is to incentivise literacy in India. That literacy bears no relevance to one’s ability to perform the duties of electoral office is – per Javed – irrelevant, because the legislative policy is something else altogether.



Nonetheless, the understanding of the place of voting and elections within the constitutional scheme has undergone a significant change over the last decade. In Union of India vs Association for Democratic Reforms, decided one year before Javed, the Supreme Court distinguished between the “right” to vote (statutory) and the “freedom” to vote (constitutional). This latter freedom was grounded in Article 19(1)(a) (freedom of speech and expression). The Court observed that at the heart of the 19(1)(a) guarantee were ideas of republican democracy, and held that the voter’s speech or expression – i.e., the act of casting the vote – was protected under Article 19(1)(a) as an integral part of democracy. In 2013, this view was affirmed by the famous “NOTA judgment”. The directions to include a “None of the Above” option in the EVMs was grounded in the reasoning that voting – as an integral part of the democratic process – is protected expression under Article 19(1)(a).



Right vs Freedom



What does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? One way of understanding this is that the legislature is permitted and entitled to regulate the election process (which it does through the Representation of the People Act, and other similar statutes). The legislature can prescribe the modalities of how elections are to be carried out, and thus it can (within reason) determine how the freedom to vote is to be exercised. However, if the legislature makes a law that regulates or restricts not how the electoral process is to be carried out, but who is entitled to participate in it, then such a law must be subjected to rigorous scrutiny by the Courts – because that goes to the very heart of the constitutional freedom itself.



The right/freedom to vote, and the right/freedom to stand for office are conceptually inseparable, as they form equally integral parts of the democratic process. Consequently, the same logic applies to the latter. Admittedly, Article 84 of the Constitution (dealing with the legislature) requires candidates “possess(ing) such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”, thus expressly envisaging the possibility that Parliament may pass a law limiting the entitlement to participate in the democratic process on the basis of certain qualifications. Nonetheless, the freedom-of-voting decisions of the Supreme Court indicate that legislation that directly disenfranchises persons (by “disenfranchise”, I mean both the right to vote and the right to stand for office) ought to be subjected to rigorous judicial scrutiny.



In particular, the State should not be allowed to introduce extraneous considerations such as “family planning” or “increasing literacy” to justify such legislation. Secondly, the State should be required to justify the relationship between the restrictions that it has imposed, and the fundamental place of the electoral process in a republican democracy. For instance, a law that prohibits persons with criminal convictions from standing for elections has a demonstrable nexus with the role of elections in the democratic process. A law that prohibits persons on the basis of literacy does not.



Republican democracy is based upon the core idea that every citizen has the freedom to participate in the workings of democracy, whether by voting or by standing for elected office. Every limitation upon this freedom is problematic. This is especially true when the limitation affects those most marginalised by the political process. Consequently, it is to be hoped that Haryana’s blatant efforts to subvert the Constitution are thwarted by the Courts, and that Rajasthan’s ordinance is struck down at least in time for the next elections, in 2020.



