The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance

(H/T to Mythili Vijay Kumar for pointing out Javed vs State of Haryana and helping me through the attendant issues)

Today, the Supreme Court dismissed a challenge to the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 (approved by the Governor on December 19, 2014). The dismissal was on procedural grounds. As far as I can understand, the petitioners were granted liberty to approach the High Court. Considering that the nomination period ends tomorrow, and (again, to the best of my understanding) the Court refused to grant an extension, it is likely that the challenge is now (for the time being, at least) infructuous. Nonetheless, we have probably not heard the last of this. This post considers some of the issues involved.

This ordinance makes certain educational qualifications a necessary pre-requisite for contesting local government (Panchayat) elections.  The petitioners have argued that the Ordinance is discriminatory, and “abrogates their constitutional right to contest elections.” They contend that in light of low literacy levels in Rajasthan, the Ordinance is especially slanted against the rural poor. Others have pointed out the gendered impact of the Ordinance, 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.

Whatever we may think of the legislative wisdom of the Ordinance, the constitutional challenge, nonetheless, has to overcome a significant hurdle. This is because the “right” to vote (and, by extension, the right to run for office) has never been considered by the Supreme Court to be 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. For instance, claims that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) have been dismissed on the ground that because there is no “antecedent” right to stand for election, there is no constitutional violation. Citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law.

This was the reasoning of the Supreme Court in an analogous case in 2003, called Javed vs State of Haryana. In Javed, a provision of the Haryana Panchayati Raj Act stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children.” The constitutionality of this provision was challenged under Articles 14, 21 and 25. A three-judge Bench of the Court rejected the challenge.

At the heart of the Court’s Article 14 reasoning was the proposition that since the right to stand for election is not an antecedent constitutional right, standard principles of rationality review under Article 14 will apply. It observed:

“The classification is well-defined and well- perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing 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. The number of children, viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.“

Responding to the contention that the number of children one had bore no relevance to one’s capabilities to discharge the duties of one’s elected office, the Court held that “we have already stated that one of the objects of the enactment is to popularize Family Welfare/Family Planning Programme.” Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny.

One can easily see how a similar argument will squarely apply to the Rajasthan Ordinance. By making literacy a pre-requisite to contesting local elections, the “objective” is to promote literacy in India (something nobody can have an objection to). 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.

Notwithstanding this, one must also note that the understanding of the place of voting and elections within the constitutional scheme has changed 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 invoked the familiar argument that at the heart of the 19(1)(a) guarantee were ideas of republican democracy. Consequently:

“Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

In 2013, this view was affirmed by the famous “NOTA judgment” of the Supreme Court. 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).

Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? When examining the NOTA judgment, I’ve suggested that the only way of reconciling the two is as follows: the legislature is permitted and entitled to regulate the election process (which it does through the Representation of Peoples 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 “possesses 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 more rigorous scrutiny than a ‘rational review’ standard.

In particular, the State should not be allowed to introduce extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation. This would amount to what is called an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution. 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 a 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, I would argue, with respect, that the Court was incorrect in dismissing the petition, because there are crucial constitutional issues involved. If this case comes back before the judiciary, it is to be hoped that some of these issues will be considered.