Rajasthan High Court’s (interim) Decision on the Panchayati Raj Elections

Previously on this blog, we had discussed the constitutional challenge to the Rajasthan Panchayati Raj Ordinance, which imposes formal educational qualifications to run for elected office at the local government level. We had discussed precedents in cases such as Javed vs State of Haryana, which – in treating the right to vote and run for office as purely statutory rights – had rejected challenges to similar restrictions. We had also argued that the last decade has seen a shift in the Supreme Court’s understanding of the role of elections in a democracy, starting with Union of India vs Association for Democratic Reforms (2002 SC), in which the Court held that the right to vote, while not a fundamental right, was nonetheless a ‘constitutional right’, and through PUCL vs Union of India (2003 SC) to PUCL vs Union of India (the NOTA case, 2013 SC), where the Court held that the act of voting is an exercise of Article 19(1)(a) freedoms. In conclusion, a legislative enactment that goes beyond simply regulating the modalities of voting (and therefore affects the statutory ‘right to vote’) and actually disenfranchises sections of the population (thereby affecting the constitutional ‘freedom of voting’) must be subjected to more rigorous scrutiny than a standard Article 14-rationality review (as in Javed). The logic of voting applies equally to the logic of running for office.

After the Supreme Court dismissed the challenge and granted liberty to the petitioners to approach the Rajasthan High Court, the case was heard by a division bench of the High Court on the 12th of January. Yesterday, the Court passed an order refusing to interfere with the workings of the ordinance. The petitioners had asked for an extension on the nomination period and a stay on the disqualification provisions pending a full adjudication of the dispute, so that in the upcoming elections this month, a large section of the population would not be excluded. The Court’s refusal to agree to either request means that the elections will now go ahead, and even if the Ordinance is eventually held unconstitutional, there will be no remedy until 2020.

Before the Court, detailed arguments were made about the nature and purpose of Panchayati Raj institutions, the arbitrariness of the formal-education requirement, and its disproportionate impact upon rural women (where it would act to exclude 95% of them). The State contended that this was a matter of electoral reform, that the performance of financial and administrative tasks requires formal eduction, and and that the Court ought not to interfere with legislative wisdom in matters of policy.

The core of the Court’s reasoning may be found in paragraphs 32 to 37. In paragraph 32, the Court notes that the State Government has failed to produce empirical data showing that there are enough qualified (i.e., formally educated persons) in the village (especially women), in order to demonstrate that the Ordinance will not exclude a significant section of the population. The Court then notes that even if such evidence was produced, “the exclusion of those who did not have an opportunity of formal education, could not have been denied participation in democratic institutions… the poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualifications.” In paragraph 33, the Court repeats these observations, and adds that the legislation is prima facie “arbitrary, irrational and unreasonable.” In paragraph 34, it states that it is unconvinced by the State’s argument that the financial and administrative tasks of local government require formal education.

We then come to the operative part, in paragraph 35. According to the Court:

If the disqualification prescribed by the Ordinance deprives a large section of the society to participate in the democratic institution of Panchayati Raj, and runs counter to the objectives of the 73rd Amendment, it may be declared as unconstitutional by the Court of law. We, however, find that neither the petitioners nor the respondents have placed sufficient data before us, to form any opinion as to whether the Ordinance is discriminatory as it will exclude a large section of the population from taking part in elections of the Panchayati Raj institutions. Both the petitioners and the Respondents have produced a large number of papers without sufficient opportunity of collection of the datas (sic) and the other side to reply.”

The Court then holds that the matter will therefore require a full-fledged hearing, and that it does not need to decide upon the constitutionality of the ordinance “at this stage”.

Two preliminary points may be noted. The reason why there was “no opportunity” for the parties to collect data was because the Ordinance was introduced four days before the announcement of the election program (in late December), and the elections itself were to take place through the month of January. It was the State that chose to promulgate the Ordinance literally days before the elections. In effect, the Court’s holding that the parties had no time to prepare data for a proper hearing was entirely the State’s fault, which the Court then allowed the State to benefit from by refusing to stay the disqualification provisions. This is bizarre logic and flies in the face of the basic legal principle, that no man (including the State) ought to benefit from their own wrong.

Secondly, it is hard to understand what data the Court needs apart from the following (most of which was provided to it): the population of Rajasthan at the last census, overall literacy rates, urban literacy rates, rural literacy rates, and urban-male, urban-female, rural-male and rural-female literacy rates. The degree of exclusion, and its gendered nature, will be abundantly clear from these figures, and was specifically argued before the Court.

There is, however, a deeper problem with this judgment. And that is the Court’s belief that discrimination is a problem only when a sufficiently large number of people is discriminated against. Let us recall the words of Article 14:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The right to equal treatment, and the right not to be discriminated against, is a right vested in individuals. The Constitutional freedom to vote (and run for office) as an aspect of Article 19(1)(a) is an individual freedom. A law that specifically bars me, as a single, individual citizen of India, from participating in the democratic process, is as unconstitutional as a law that bars every citizen but me from participation. When it comes to personal freedoms as constitutional rights, numbers don’t matter. And this is because the whole purpose of rights is to act as a check against majoritarian democracy. We vest rights in people because we are aware that majoritarian sentiment, expressed through elected parliaments, can often ride roughshod over core human interests. To then require that the petitioners demonstrate that a “large section of the population is affected” undermines the entire basis of Part III of the Constitution.

There are echoes here of Koushal vs Naz, the Supreme Court’s 2013 decision re-criminalising homosexuality. In the single paragraph of reasoning found in that judgment, the Court labeled the homosexual community as a “minuscule minority”, and held that there was no evidence showing that the “so-called rights of the minuscule minority” had been jeopardised by S. 377. Earlier in 2014, dealing with the educational rights of disabled children, the Delhi High Court signaled a potential shift away from this position by clearly stating that “though a small minority (2.1% of the population), they [the children] deserve no less than the rights under the PWD Act and the RTE.” But yesterday, the Rajasthan High Court echoed Koushal. The only result is a further erosion of constitutionalism and the idea of constitutional rights.

Data is important in this case, but it is important for a reason that the Court does not quite grasp. The challenge to the constitutionality of the Rajasthan Ordinance is two-pronged, and it is important to separate the two prongs. The first is the claim that by disallowing people who lack formal education to contest the elections, the Ordinance is discriminatory under Article 14, and also violates Article 19(1)(a)’s freedom of democratic participation. The second is that the male-female and urban-rural divide ensures that the Ordinance disproportionately burdens women in general (which would be an Article 15 claim), and rural women in particular (another Article 14 claim, if we assume that – following the Court’s previous judgments – intersectional claims cannot be brought within Article 15). The second claim is one of disparate impact: i.e., that a facially neutral statute has a ‘disparate impact’ on one section of the population, and is therefore discriminatory. To take a very simple (and extreme) example, a statute prohibiting the employment of “pregnant persons” is facially gender-neutral, but for very obvious reasons, will work to exclude only women. More complex arguments of disparate impact, by their very nature, require data at the threshold stage: data that demonstrates that the representation of one particular group, as a result of the statute, is far smaller than their representation in society as a whole.

But while the argument claiming that the Ordinance discriminates against women does require data (and such data was provided), the more basic flaw with the Ordinance – that it disenfranchises individuals – does not require facts, statistics or reports. All that it requires is the Court to ask whether the disenfranchisement is justified by any compelling State interest in preserving the integrity of the electoral process, as an aspect of republican democracy. And since the State has deprived people of their constitutional rights, the State must bear the burden of proving its case. If it cannot do so, then the law must fail – or at least, its operation be stayed, pending complete adjudication.

The impact of the Rajasthan High Court’s decision is highly unfortunate. It is also incorrect, and in complete violation of constitutional norms and standards.


Filed under Disparate Impact, Elections, Free Speech, Non-discrimination

14 responses to “Rajasthan High Court’s (interim) Decision on the Panchayati Raj Elections

  1. Malavika

    The Delhi HC didn’t signal a shift away from the position, it pointed out that axiomatically, that could never have been the position for adjudicating rights. 😛

  2. Manas

    I am not a law student, but enjoy reading this blog and am a subscriber.
    Along with underlining the important parts in the article, could you also provide a summary at the bottom. That way, common folks like me can quickly know what’s going on, without going into the details. Thanks.

  3. Manas

    As someone, whose family still stays in a villages, I welcome this decision. Panchayats are dominated by local goons and drunkards. Even if a Sarpanch has good intentions, they cannot do any work if they are illiterate. As a result villagers suffer.
    The debate should be why illiteracy exists.

    • Hi Manas – thanks for your comment. I definitely appreciate your concern, but I’m not sure if educational requirements are going to weed out local goons and drunkards (especially given how severely they affect women!). If we want to weed out local goons and drunkards, then surely we’re better off adopting a more direct approach (e.g., disqualification if booked for an offence like drunken affray).

      I also think that, given that after Article 21A, the State has an obligation to provide basic education, disenfranchising citizens because they lack formal education essentially penalises them for something the State is bound to do, under the Constitution.

      • Manas

        Thanks Gautam for your response. RTE (however imperfect it may be) came into effect few years ago, so state was not bound to educate people before 2009. Or is it retrospective?

        Ignore the drunkard point, it may not be universal. (in my village you cannot find the Sarpanch sober after 11am)
        Still, paper work, writing applications, keeping records, checking accounts etc.- are needed. Unlike MP/MLAs, Sarpanchs don’t have any backoffice team to do these work. How is a Sarpanch supposed to communicate with collectors/ BDOs/ engineers if she is illiterate? Yes, it is discriminatory but so are other jobs which need you to read/write/ communicate.
        Sarpanch is in a better position to help other illiterate villagers and I feel that her being literate is even more important than it is for an MLA. Or should we do away with written applications in government work and wait till we reach universal literacy.

        I was just saying from my personal experience, not from constitutional point of view. I am sure many other villagers will share the same concern.

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  6. Malavika

    The challenge to the promulgation of the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 can also be contested on the ground that it could potentially amount to a colourable exercise of authority by the State Government, given a) its timing, and b) the fact that the “immediate action” needed to be taken in the “circumstance” of poor literacy rates, is not the promulgation of ineligibility conditions for candidature in Panchayati elections, based on literacy. Article 213 says:
    213. Power of Governor to promulgate Ordinances during recess of Legislature
    (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided… [xxx xxx xxx]
    (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance
    (a) shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
    (b) may be withdrawn at any time by the Governor
    Explanation [xxx]
    (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall be void:
    [xxx xxx xxx]

    After the decisions in R.K. Garg v. Union of India, AIR 1981 S.C. 2138 and AK Roy v. Union of India, AIR 1982 SC 710 the position has become clear that although the powers under Art. 213 (and Art. 123) appear to be executive, the true nature of the power in the hands of the Governor (and the President) is legislative. Such legislative power cannot be seen as a parallel power alongside that of the legislative assemblies (or Parliament). Instead, the provisions must be seen to invest the Governor (or the President) with legislative power that otherwise rests with the legislatures, only for the period when they are not in session. Such a position comes from an excessively rigid reading of sub-clauses (2) and (3) of Art. 213 and Art. 367 (2). These provisions, no doubt, clarify that ordinances have the force and effect of “laws”, and even that the power to promulgate an ordinance is the legislative power, that temporarily vests in the executive. However, they do not lend themselves to the proposition that the authority wielding ordinance-promulgation powers *function* as legislatures do and a deeming assumption in their favour can cause more harm than good.
    Given the view in R K Garg and A K Roy however, the law is settled that the existence of circumstances that form the necessity to take immediate action is left to the subjective satisfaction of the Governor, because if a legislation cannot be unconstitutional for being unnecessary, neither can an ordinance See M/S. S. K. G. Sugar Ltd v. State of Bihar, AIR 1974 SC 1533, 1975 SCR (1) 312. Likewise, it is also accepted that non-application of mind cannot be a ground for invalidating an ordinance, since the executive’s power is akin to that of a legislature i.e. plenary within its field and without limitations upon that power, excepting Part III. See K. Nagraj v. State of A.P. AIR 1985 SC 551. More relevantly, K Nagaraj also held that the argument of mala fides is misconceived when made in context of motives of ordinances, just as a legislature cannot be accused of having passed a law for extraneous purposes or driven by ulterior motives. Compelling arguments can be made to question this position; Shubhankar Dam offers some insightful commentary on point in Shubankar Dam, Making Motives Count: Judicial Review of Ordinances in India, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862531.

    The position, then, is clear – one cannot challenge first, the existence of circumstances necessitating immediate action i.e. whether the State interest in encourage literacy is an emergency requiring immediate action, second, the non-application of mind in promulgation of the ordinance, i.e. whether the immediate action taken has any rational nexus with the circumstances necessitating action, and third, the promulgation being impelled by ulterior motives.

    But I think one argument remains to be made. D C Wadhwa v. State of Bihar, AIR 1987 SC 578 found that the colourable exercise of power in re-promulgating lapsed ordinances, after sessions of the Bihar Assembly were prorogued, without ever enacting them into legislation, was a ground for striking down ordinances. Here, several ordinances had been kept alive for as long as 12-14 years, without ever being subject to the consideration of the legislature. It was held that constitutional authorities cannot do indirectly, what they are not constitutionally permitted to do, directly. Assuming the ordinance is promulgated on the first day after the end of session, it can be operational for a total period of six months, which is the maximum duration between sessions of the Legislative Assembly, and an additional six weeks, which is the period of time permitted for enacting the ordinance into legislation, before it lapses. In all, constitutionally, the life of an ordinance cannot exceed seven and a half months. A limited exception was carved out for a session facing time constraints owing to a large volume of legislative business, where re-promulgation may be legitimately necessary. Thus, the Court’s view was that ordinances can never constitutionally be operational for decades, without committing a “fraud on the constitution”. Specifically, the Court held:

    Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine whether the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh & Ors. v. Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943 PC 818; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper v. Union of India, [1970] 3 SCR 530. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satisfaction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him.

    The political timing of the Rajasthan ordinance could be argued to be an attempt to do indirectly, what is not permissible directly, *particularly if the Ordinance is not brought before the Assembly*. (At present, concededly, such a proposition is speculative). While we are required to take, as a given, the satisfaction of the Governor that there exist circumstances necessitating the immediate promulgation of new eligibility conditions for candidature, the proximity of the promulgation to the elections can be called into question. In other words, while the existence of circumstances is beyond the pale of scrutiny, the manner in which the action is taken, procedurally, and not on merits (for merits would qualify for an ‘application of mind’ inquiry), may be questioned.
    Consider that the disqualification from candidature on these grounds (ignoring, for a moment, that they are unconstitutional) could easily have been enacted in Assembly in the last session, in September. Equally, these conditions could easily have waited till the commencement of the next session of the Legislature to be enacted (in mid-March, at the latest). The promulgation of these eligibility conditions six days before the election, compel the necessary inference that they were intended to govern the election presently underway. Given that the ordinance seeks to regulate elections that take place once every five years, such an ordinance need only be operational till the elections are conducted. Such ordinance, if allowed to lapse once the Legislature is in session, would nonetheless have served the purpose of irrevocably altering the eligibility conditions for the present election. By executive fiat then, it is possible to alter eligibility conditions when elections are right around the corner, every five years. The remedy against such a colourable exercise of power, if sought after the Ordinance lapses, would be a striking down of the Ordinance for voidness, which would require fresh elections, which is a rather costly administrative exercise.

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  8. In your previous blog (https://indconlawphil.wordpress.com/2015/01/05/the-constitutional-challenge-to-rajasthans-panchayati-raj-ordinance/) you have written:
    Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional?

    Here you have written:
    Court held that the right to vote, while not a fundamental right, was nonetheless a ‘constitutional right’,

    So is ‘Right to Vote’ a constitutional right or a statutory right or it is ambiguous due to different interpretation by Supreme Court?

    • Good spot. Yes, you’re correct – I think it’s ambiguous. I also think that the ‘constitutional right’ framing is an outlier, apart from being very… strange, as a legal concept.

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  10. Robbin

    Great Article. Thanks for the info. Does anyone know where I can find a blank form SC DoR SC1040?

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