Guest Post I: The Panchayati Raj Ordinance Case and Article 14 – A Codicil

(We are continuing with our analysis of the Rajasthan Panchayati Raj Ordinance, which imposes educational qualifications as pre-requisites for running for elected office in local government, and its fate in the courts. This is a guest post by Vasujith Ram, a student at the National University of Juridical Sciences (NUJS), Kolkata)

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In a challenge to the Ordinance No. 2 of 2014, which imposes educational disqualifications for the Rajasthan Panchayats, the Rajasthan High Court refused to accept the stay applications and pass interim orders. The order has been previously analysed here on this blog as a “complete violation of constitutional norms and standards”. While I certainly agree with the substance of the analysis, I would like to add some auxiliary notes in this post.

My first point is with respect to the “object-nexus” test under Article 14. In the earlier case of Javed v State of Haryana, previously referred to on this blog here, one of the contentions made was that the differentiating statutory provision – mandating the disqualification of those violating the two child norm – would not have any rational nexus with the object sought to be achieved by the Act. Rejecting the contention, the Court referred to Article 243G(b), which states that powers and responsibilities that may be entrusted in the Panchayats in pursuance of economic development and social justice are referred to in the 11^th Schedule to the Constitution. As per the Schedule, Family Welfare and Women & Child Development form part of the duties of the Panchayats. Moreover, Section 21 of the Haryana Panchayati Raj Act, 1994 also listed family welfare as one of the callings of the Panchayats. Thus the Court justified the endurance of constitutional scrutiny by arguing that the electoral disqualification only furthers the statutory purpose.

In the present case, the Rajasthan High Court could have mimicked the Supreme Court’s reasoning – item 17 in the 11th Schedule of the Constitution provides for “Education, including primary and secondary schools”; item 19 refers to “adult and non-formal education”. Similarly the First Schedule of the Rajasthan Panchayati Raj Act, 1994 (operationalizing Section 50 of the Act, providing for powers and functions of the Panchayats) lists primary education and literacy programs as one of its priorities (item XV and XVI). It is manifest that the basic error committed by the Supreme Court in Javed was to conflate the two different objects of lending legal recognition to the Panchayats (vide the 73^rd Amendment and the Panchayati Raj Act) – (1) One is to create a right of political participation and self-governance by opening up positions to institutions with statutory power for those hitherto deprived of it; (2) the other is to encourage such constituted bodies to engage in certain activities and promote certain goals. Imposing a restriction on (1) to ostensibly serve the object of (2) is dubious logic. A statutory amendment, in order to survive the object-nexus test, ought to be consistent with the corresponding object of the main Statute or the Constitutional Amendment authorizing the statute. The High Court here aptly identifies this distinction –

 “The disqualification for membership, under Article 243F of the Constitution, to be prescribed by the Legislature of the State, could not have provided for any such condition attached, which may have taken away the rights of the self governance, except for disqualifications, which have material object to achieve, such as the character, integrity or morality of the person to represent […] Any other disqualification will negate the object of self governance at grass root level, peoples participation, and social justice”.

Identifying this, the Court further held –

“In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic […] The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion.”

This distinction between the two objects is one of crucial importance. The 73^rd Amendment itself states that one of the objects of constitutionalizing the Panchayati Raj institutions is to remedy the “insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women”. In order to fulfil the object-nexus test, a statutory amendment to a law ought to be consistent with the corresponding object of the constitutional amendment or provision authorizing such a law. If one of the stated objects of the 73^rd Amendment could effectively be subverted (despite the seat reservations) by setting electoral bars in pursuance of goals the constituted body is to pursue (a different object), then the object of the Constitutional Amendment would be defeated. For example, item 14 of the 11^th Schedule mentions rural electrifications and item 16 mentions poverty alleviation. No statutory amendment imposing such electoral restrictions ought to withstand the “object-nexus” constitutional scrutiny.

If on the other hand, there is a bar which fulfills and furthers recognizes material objects of constituting a political body – such as “character, integrity and morality” of the person, it must withstand constitutional scrutiny. And this is precisely what the Rajasthan High Court held in response to the Advocate General’s contention that a previous ordinance had disqualified those convicted and sentenced to imprisonment of 6 months or more. It observed –

“The persons who are engaged in unlawful activities or are defaulters, or acquired any disqualification which may have any nexus with the object, sought to be achieved, namely for representation, may be excluded participation in Panchayats.”

It is also pertinent to note that one factor weakening the State’s stand in the instant case was that the Ordinance had no Statement of Objects and Reasons.

Secondly, this order has perhaps foreclosed the possibility of any argument on the basis of history. I do not have primary materials, but secondary accounts (see for example, M Galanter and Upendra Baxi, “Panchayat Justice: An Indian Experiment in Legal Access”, in M Galanter, Law and Society in Modern India (OUP)) do indicate that there were literacy qualifications in the pre-constitutional period. But the Court here clarified –

“In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a republic. It is a negation of the very object of purpose of enacting the Constitution of India, described in its preamble. The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that she does not have educational qualification for such inclusion […] The republicanism in the country has allowed many persons, who did not even have any formal education, to rise and lead. Some of them had also rises to the position of Chief Ministers of the States.”

Thus the Court has created a distinction between a constitutional regime and a non-constitutional one. What may have been present historically need not necessarily be a sound presence in a democratic republic promising political justice.

My third and last point is with respect to the right to contest. I had noted in an earlier post on I-CON that this case presents a clear opportunity to clarify the nature of the right to contest. I had argued that the judicial decisions so far indicate that there is no fundamental right to contest, and that the statutory creation of the right has only been tested on grounds of reasonableness. Here in this case, while the Advocate General contended that the right to contest is a statutory right and not a fundamental one, the Court did not make any observations in this respect. It rather went on to directly examine the Ordinance’s reasonableness (its consistence with Article 14). Surprisingly, there was no argument on the basis of Articles 21A and 45, where it is the State’s obligation to provide all children free and compulsory education. Having failed in its obligation, the State has further imposed a disqualification on such persons.