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.