This morning, the Supreme Court upheld the Haryana Panchayati Raj Act amendments, which imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. On this blog, we have argued in detail that the Act was unconstitutional, and ought to have struck down (all posts may be accessed here).
I began to read this judgment with a view to engaging with, and responding to the reasons provided by the Court to reach the contrary view. The reasoning – as far as I can make out – is found in paragraph 40:
“It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration of the PANCHAYATS. The classification in our view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved.”
However, this is only a blanket assertion, without any further justification. Then, on debt restrictions, in paragraph 92, the Court declines to examine the statistics on the extent of rural indebtedness. It then observes:
“We are also not very sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections whether at PANCHAYAT level or otherwise. We can certainly take judicial notice of the fact
that elections at any level in this country are expensive affairs. For that matter, not only in this country, in any other country as well they are expensive affairs. In such a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it would be beyond the economic capacity of such persons. In our opinion, the challenge is more theoretical than real.”
In other words, because poor people normally would be unable or unwilling to fight elections, it is permissible to debar them altogether. But surely this is no rational nexus under Article 14.
On the issue of functional toilets, the Court notes sanitation schemes carried out by the government, and then observes in paragraph 95:
“As rightly pointed by the respondents, if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will. One of the primary duties of any civic body is to maintain sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and administer them must set an example for others. To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in our view, can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the object sought to be achieved by the Act.”
In other words, in order to ensure that only people who “can set an example to others” are allowed to stand for elections, the State can simply debar everyone else.
I have made detailed arguments before about why this law was unconstitutional. There is little purpose to rehearsing them here. Suffice it to say that the judgment does not engage with the place and structure of voting and contesting elections in a democratic republic (despite a few paragraphs that purport to do so, and bear no relation with the core of the judgment); it does not engage with standards and burdens of proof under Article 14; and it does not explain how the proposed restrictions meet the test of Article 14. The reasoning, unfortunately, seems to be based upon a series of assertions, generalisations and stereotypes.