Haryana’s Educational Qualifications Ordinance Becomes an Act

Previously on this blog, we have discussed the Rajasthan legislature’s imposition of educational qualifications as a pre-requisite to contest local body elections, via an Ordinance, strategically passed last December, just before local body polls. The Supreme Court and Rajasthan High Court’s refusal to expeditiously deal with the issue meant that the elections went ahead, disenfranchising a large segment of the population. The case is still pending adjudication.

The other state that has introduced a similar requirement is Haryana. On August 22, the Chandigarh High Court stayed the operation of Haryana’s ordinance. Two weeks later – late this Monday, in fact – the Haryana parliament 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 is that once the schedule is announced, the election process is deemed to have been set in motion, and according to the jurisprudence of the courts, may not be stayed until completion.

While the judge-made rule against staying elections once the process has begun is a hoary one, the State can hardly be said to have clean hands in this case! The Ordinance was stayed specifically because a constitutional challenge was raised. The legislature’s move – converting it into a law, and then announcing the schedule within the space of a few hours – is clearly designed to avoid a judicial challenge and stay on the very same issue on which the Court has already granted a stay. Surely, if ever there was a time to depart from the principle that elections ought not to be stayed once the schedule has been announced, this is it.

Rajasthan and Haryana are now two states that have property and literary-based disqualifications in place for running for elected office. In the trajectory of enfranchisement throughout world democracies, this places them somewhere in the 1920s. In the nine months since this began, the Supreme Court as well as the High Courts have failed to respond. If this manner of disenfranchisement continues unchecked, it must surely rank as one of the more serious instances of the courts’ abdication of their role as guardians of civil and constitutional rights.

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5 Comments

Filed under Elections, Free Speech, Local Government (Panchayati Raj)

5 responses to “Haryana’s Educational Qualifications Ordinance Becomes an Act

  1. Darpan sachdeva

    The rule against staying elections once the process begins isn’t judge made. It stems from section 81 of The Representation of the People Act, 1951. In fact, the Courts have now carved out various exceptions to the rule..

    • Correct me if I’m wrong, but isn’t S. 81 limited to challenges under Ss. 100 and 101 of the RP Act? Presumably, a constitutional challenge would not be constrained by the bar under S. 81?

      Also, I’m not really familiar with the RP Act, but my impression was that it did not apply to local government elections?

  2. Darpan Sachdeva

    Well, it is settled, and you have argued elsewhere on this blog that the Constitutionality of any Act or Amendment has to be presumed. Any stay granted by the Courts would go against the grain of this doctrine.

    While the RP Act does not apply to local bodies’ elections, the States have adopted various provisions of the RP Act. In Haryana, s. 176 of the Haryana Panchayati Raj Act, 1994 is pari materia to s.81 of the RP Act.

    But it’s true that any challenge to the Constitutionality of various Election laws cannot probably be the subject matter of an Election Petition..

  3. what are the governor and president doing ? president as ‘custodian of constitution’ must owe to his oath and should ask the intention behind such unethical and undemocratic practice of law making .

  4. Pingback: The Educational Disqualifications Case: A Round-Up | Indian Constitutional Law and Philosophy

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