Supreme Court Upholds Haryana Panchayati Raj Act

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. On having read it, I find myself unable to do so, for the simple reason that the judgment has no reasoning at all. I will extract the relevant paragraphs, and say res ipsa loquitur.

Paragraph 40, on educational requirements:

“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.”

Pause. Read again. “It is only education which gives a human being the power to discriminate between right and wrong, good and bad.”

One line. One blanket assertion. That is all that the Court provides for an excuse for reasoning in a constitutional case involving basic political rights. One line. One assertion. That is the respect that this Court has for the Constitution, and for equality. It does not even condescend to justify its conclusion.

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. Here, the Court does not even make a pretence of a reasoning as to how there is a 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 this judgment contains zero analysis about 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 contains zero analysis about standards and burdens of proof under Article 14; and zero analysis about how the proposed restrictions meet the test of Article 14. It is based upon a series of assertions, generalisations and stereotypes.

As a judgment, it is incorrectly decided, unreasoned, and profoundly anti-democratic.

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13 Comments

Filed under Article 14, Equality, Uncategorized

13 responses to “Supreme Court Upholds Haryana Panchayati Raj Act

  1. Sneha D

    I thought we had universal adult franchise and the fundamental right to equality.
    Apparently not.
    Next they’ll say smokers should not contest, because a potential candidate “must lead by example”.
    After that they’ll say that people who don’t know how to fight or people who don’t have links with hooligans should not contest, because politics involves a lot of muscle power (and not just money power).
    Finally they’ll tell us that “experience in politics” is a prerequisite, giving way to nepotism.

  2. Udit

    You’re quite right about the complete lack of argument. But do you think the rejection of the relevance of disparate impact in para 87 needs highlighting? There’s something of a distinction drawn here between disparate impact (numerical dimension of such classes), and complete breakdown of the institution under question (where holding of elections to these various bodies becomes completely impossible). The Court suggests that only the latter triggers judicial intervention.

    Hardly an argument, really. But perhaps worth emphasising the distinction it draws. It did seem strange that it laboured over the statistics showing disparate impact only to fleetingly say that this wasn’t a standard it was applying in any case.

  3. Kushpak Pedia

    Dis is contemt……. How dare u disrespect learned judges with over 70 years experience on the bench…. Who are u? U think a scholarship so obviously borne out of sycophancy makes u someone special? D reality s dat I don’t even give a shit to a person like u…..

  4. Dhruva Gandhi

    “The impugned provision creates two classes of voters – those who are qualified by virtue of their educational accomplishment to contest the elections to the PANCHAYATS and those who are not. The proclaimed object of such classification is to ensure that those who seek election to PANCHAYATS have some basic education which enables them to more effectively discharge various duties which befall the elected representatives of the PANCHAYATS. The object sought to be achieved cannot be said to be irrational or illegal or unconnected with the scheme and purpose of THE ACT or provisions of Part IX of the Constitution. 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.”

    I think there is sufficient justification in what the court says, unlike what you seek to contend. Object is the better administration of Panchayats, education is a means to such better administration and the metric to determine what education must entail has been laid down in the law. The reasonable nexus test has been met and the intelligible criterion exists.

    You may say that better administration can be attained even with the presence of non-educated, experienced persons. But, I think that falls within the realm of the legislature. They have chosen a mode which they think is fit to promote better administration and the court only has to see whether it satisfies Article 14. The court has done what was asked of it.

    Previously, you have also argued that in light of what is at stake, a more rigorous standard of scrutiny must be adopted. But, there is no case law to support this and hence, the standard of review is appropriate. The Court has provided concise and due reasons for its conclusion.

    Moreover, as for the indebted bit- I think you have under quoted the judgement. To be fair, what you have extracted is not the essence of, or the sole bit of, reasoning provided. It must be read along with the comparisons made to insolvency and the fact that a person who is intent to contest can clear basic arrears like electricity dues. The statute does not put an absolute bar or completely exclude the poor because they are poor, once and for all.

    What is troublesome about this judgement though, is the following bit-
    “87. If it is constitutionally permissible to debar certain classes of people from seeking to occupy the constitutional offices, numerical dimension of such classes, in our opinion should make no difference for determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible. ”

    There seems to be no basis for this.

    • Dhruva Gandhi

      *When I say that the Court had provided sufficient justification/ due reasons, I keep Javed in the backdrop. With Javed (though not cited on this point), the Court did not need to analyse any more.

  5. I think a major part of the judgement that inspired this reasoning (and the lack of it) was an (uncontested) assertion by the AG that “administrative efficiency … is the sole object of the 73rd constitutional amendment.” Most of the judgement’s conclusions use this assumption as a springboard. No analysis on whether there is a representative function served by panchayat elections. That and a shockingly callous attitude to standards of reasonableness and review under 14.

    • That might well be the unarticulated premise of the judgment. But they don’t even subject that to Article 14 scrutiny! No evidence on the rational nexus between administrative efficiency and education/toilets/debt.

      In fact, the Petitioners had argued that in light of the fact that the Act itself provides for many officers to assist the elected representatives in discharging their functions, the State’s argument that uneducated people would be hoodwinked into signing random forms, was clearly misplaced.

  6. I think a major part of the judgement’s reasoning was inspired by this (uncontested) assertion by the AG that “administrative efficiency … is the sole object of the 73rd constitutional amendment”. Most of the conclusions in the judgement use this notion as a springboard. No analysis on whether there is a representative function served by panchayat elections. That and a shockingly callous attitude towards reasonableness and review standards under 14. Especially when so much space was devoted to recognising how the right to contest is a constitutional right.

  7. Gautam Bhatia writes, ‘In recent years, the Indian judiciary has also caught up with international developments, and has begun to hold that discrimination must be examined from the perspective of both intention, and effect. Unfortunately, in its Panchayati Raj judgment, the Court entirely ignored the effect of the restrictions upon the political participation of lower castes and of women, two groups that the Constitution specifically singles out for protection and advancement.’

    I think I know the reason why the Judiciary writes poor judgments on Panchayati Raj. They are ignorant and illiterate about the implications of the 73rd and 74th amendments.

    In January 2008, I got a rare opportunity to speak at a seminar at the National Judicial Academy, to an audience of about 40 High Court judges. Actually, it was nothing more than a training programme; but since Judges have such outsize egos and we have to pander to them because we fear being docked for contempt of court, no training programmes at the National Judicial Academy is named so; they are all called either ‘seminars’ or ‘conferences’. Anyway, that’s besides the point.

    I was supposed to speak in a panel discussion, on the subject of the inter-relationship between higher level governments with local governments. I explained the provisions of the 73rd and 74th amendments and made the case that our constitution, while it did guarantee fundamental rights for individuals, with access to fast track legal methods such as invoking the writ jurisdiction of courts in case these rights were violated, it did not provide any enforceable rights for levels of government. Thus, inter-governmental disputes could not be agitated in court through writs; they had to be settled through other means. After the presentation (I was really overawed at first, because the other two panelists were Mr. F.S. Nariman and the late Justice Verma, former Chief Justice of India), many of the judges came up to me and confessed that they did not know much about the 73rd and 74th amendments and appreciated that I had opened their eyes. I then remarked that this has happened because our Constitutional law education is not comprehensive. Law students are taught only the fundamental rights and a few other areas where a considerable jurisprudence has accumulated, (i.e., articles 1 to 32). A course in Constitutional law does not cover nearly 90 percent of the other provisions of the Constitution. In Political Science, what is covered is the historical evolution of the Constitution and the relationships between Parliament, the Judiciary and the Executive. There is some discussion on federalism, but local governments are not covered. Students of economics cover very little of public finance and even if they do, the study of inter-governmental fiscal arrangements is restricted to arrangements between the Centre and the States.

    All in all, the implications and the design of the 73rd and 74th amendments are not covered in any academic stream; they are not studied except in the most superficial terms at best, by students of law, political science, or economics.

    This is not the first judgment by they way, where the judiciary has exhibited its rank ignorance of the implications of the Constitutional provisions and the laws relating to local governments. The judgments in the MPLADs case (2010), the Arkavathi case (2010) are other instances where legal arguments based on the 73rd and 74th amendments were brushed aside by judges who knew no better.

  8. Dr. V. Visvanathan

    First 377, now this. What else is there left to say but: ” ‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass—a idiot.’ ” Charles Dickens, Oliver Twist.

  9. Pingback: Contrapuntal Reading: Outlines of a Theory | Indian Constitutional Law and Philosophy

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