Tag Archives: panchayati raj

Paragraph 85 of Justice Chelameshwar’s Dissenting Opinion in the NJAC Case

While re-reading Justice Chelameshwar’s dissenting opinion in the NJAC Judgment, I just came across – what seems to me to be – a rather significant observation. In paragraph 85, Justice Chelameshwar writes:

“Article 326 prescribes that election to Lok Sabha and the Legislative Assemblies shall be on the basis of adult suffrage. One of the components is that the prescription of the minimum age limit of 18 years. Undoubtedly, the right created under Article 326 in favour of citizens of India to participate in the election process of the Lok Sabha and the Legislative Assemblies is an integral part (for the sake of convenience, I call it an ELEMENT) of the basic feature i.e. democracy. However, for some valid reasons, if the Parliament were to amend Article 326 fixing a higher minimum age limit, it is doubtful whether such an amendment would be abrogative of the basic feature of democracy thereby resulting in the destruction of the basic structure of the Constitution. It is worthwhile remembering that the minimum age of 18 years occurring under Article 326 as on today came up by way of the Constitution (Sixty-first Amendment) Act, 1988. Prior to the amendment, the minimum age limit was 21 years.”

The observation is significant because Justice Chelameshwar is one of the two judges hearing the constitutional challenge to the Haryana Panchayati Raj Act, which mandates educational, property and debt-based restrictions upon running for Panchayat office. In this paragraph, there are two important points. The first is the admission that the right to participation in the electoral process (which would include both voting and standing for election) is part of the basic structure, despite not being an express “fundamental right” under Part III (an omission which has done significant damage to civil rights over the years). This would mean that restrictions upon participation in the electoral process must can only be justified through very strong reasons, and in a way that the core of the basic feature – democracy – is not damaged (using the “width and identity” test propouned in Nagaraj’s Case for deciding a basic structure violation).

Secondly – and even more significantly – I suggest that the restriction which Justice Chelameshwar deems to be acceptable, throws significant light upon that which is not acceptable. The restriction he talks about is an age barrier – whether 18 or 21. To sharpen the issue, let’s take a hypothetical: a mandatory minimum age for the consumption of alcohol, which is found in all jurisdictions (or an age of consent). Let us say that we are agreed that there has to be some minimum age barrier for alcohol consumption; the principle behind it is that the possible deleterious consequences of alcohol consumption requires needs to attain a certain degree of physical and mental maturity before one is allowed to consume alcohol. We may disagree over what that minimum age is – perhaps you may think that it should be 16, and I may think that it should be 18. But we do agree that there’s no bright line test for physical and mental maturity. Any line that we set, whether 16 or 18, will be underdetermined. It will end up excluding some people who would be physically and mentally mature enough, and including some people who aren’t. So whether the government ends up making it 16 or 18, we can’t really claim that it is an irrational classification, because the very nature of the process requires a there to be a rough estimate (age), which will not map exactly upon the rationale for the classification (maturity) – but it is the best that we have.

If we code this in Article 14 language, the intelligible differentia is age (our bright line); the governmental purpose is protecting people not in a position to make responsible choices from self-harm (legitimate, as everyone would agree); the rational nexus is a rough link between age and maturity (we agree that there is a rough connection, and also that it is impossible to be more precise).

But now compare this with a general restriction upon the sale of alcohol, as passed by some States, which also has an exemption for 5-Star establishments.  This is an entirely different case. Here the law implies that poorer people, who do not frequent 5-Star establishments, have less of an ability to control themselves on consumption of alcohol. In other words, the basic logic is the same – government acts to protect people who cannot make responsible choices from self-harm – but extends its classification to equate socio-economic status with perpetual minority, or the inability to make a responsible choice (a Kerala High Court decision upholding a liquor ban on these lines was upheld by the High Court, and has presently been stayed on appeal).

Let us now come back to voting and participating in elections. An age bar is exactly akin to an age bar on alcohol consumption. The basic logic is the same: the intelligible differentia is the bright line of age. The purpose is to maintain the integrity of the electoral process, since only people who have attained a certain degree of mental maturity are expected to make a responsible choice about who will govern them, or to actually carry on governance (this also explains why unsoundness of mind is another disqualification). The rational nexus is that age bears a rough relationship with maturity, and that greater precision is impossible.

Educational, property and debt disqualifications, on the other hand, are exactly like a liquor ban that exempts 5-Star establishment: it places a group of people in a position of perpetual minority, deeming their class or socio-economic status to disqualify them from acting as responsible participants in the process of governance (notice that the restriction operates upon voters (by circumscribing their range of choices) as well as candidates).

In stating that participation in elections is part of the basic structure, and that reasonable regulations can be imposed upon it, such as age restrictions, Justice Chelameshwar is entirely correct. The basis of the regulation is not in dispute, and the impossibility of an exact fit is not in dispute. Neither of those two conditions are met in the Panchayati Raj Act, and more importantly, if participation in elections is part of the basic structure, then the Government bears the burden of showing that essentially, the Panchayati Raj Act is akin to an age restriction. Consequently, Justice Chelameshwar should now extend his own logic, and strike it down.

(In the next – and my last post on the subject – I will argue that in any event, the Panchayati Raj Act should be held to a higher standard of scrutiny under Article 14 than mere “rational review”, and that for independent reasons, the affirmative burden should be on the government)

 

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

Guest Post – II: The History of Educational Qualifications for Democratic Participation in India

(This is a guest post by Udit Bhatia, a DPhil candidate (political theory) at the University of Oxford. Udit is writing his dissertation thesis on the role of education in political exclusion)

(This wraps up our four-part series on the Rajasthan Panchayati Raj Ordinance.

Post I: On the constitutionality of the Ordinance from the perspective of Article 19(1)(a)

Post II: A critique of the Rajasthan High Court’s refusal to intervene

Post III: The Ordinance as seen from the prism of Article 14

Post IV: The History of Educational Qualifications for political participation)

The Rajasthan Government’s recent ordinance on Panchayati elections raises once more the question of the relationship between education and political participation. Before I discuss the history of debate on this relationship, it is important to remember that this issue is likely to remain of political significance for years to come, in spite of increased access to education. This is because the generations which shall continue to constitute a large share of our political class for the next few years will be those that did not enjoy the benefits of the kind of educational access available today. Further, as this number shrinks, it is likely that illiterate persons will become even more politically vulnerable. To put things in perspective: one member of the Constituent Assembly suggested that it was unfortunate that the adult suffrage had to be extended to illiterate persons. But he also conceded that the very notion of adult suffrage would be rendered meaningless if it were denied to the illiterate because it was such a large share of the population. There has, hitherto, been some strength in numbers.

The view that education is necessary for the exercise of democratic citizenship played an important role in the colonial government’s postponement of self-government in British India. The Southborough Committee, constituted to offer recommendations on the franchise by the Government of India Act 1919, stated that “education does help in the formation of an electorate which will be potentially more capable of understanding issues submitted to its judgment and hence prima facie better equipped to exercise political power”. Similarly, in offering recommendations for the Government of India Act 1935, the Lothian Commission noted that, in addition to the size of its population, illiteracy constituted one of “the two special problems which confront India in setting on foot a system of responsible government”. Illiteracy prevented access to knowledge, and therefore, an intelligent exercise of the franchise. One finds across the colonial government’s discussion on the franchise, the suggestion that self-government continued to remain the ‘ideal’, but one that had been rendered ‘impracticable’ due to this particular feature of illiteracy, which affected the vast majority of the Empire’s subjects.

In addition to the idea that literacy was a marker of political intelligence, it was also urged that wedding the franchise to one’s educational qualifications would help encourage the expansion of education. This argument figured in deliberations of the Roundtable Conference’s Subcommittee on the Franchise, and later, the Lothian Commission’s Report, both of which favoured an educational qualification for obtaining a vote. The educational qualification was conceived as an enabling one, which allowed educated persons who did not meet the property qualification to nevertheless cast a vote. However, from the perspective of the disenfranchised, one’s lack of education, in addition to property, now prevented them from obtaining the vote.

The Empire’s assumption about the necessity of education for democracy did not go uncontested. For instance, in the deliberations of the Roundtable Conference’s Subcommittee, one finds three distinct lines of critique against the educational qualification. The first emphasized the irrelevance of educational qualification in matters of political judgment. While some urged that illiterate people had a “horse sense” which allowed them to make intelligent political judgment, others criticized the narrow understanding of education as formal instruction on which defences of such proposals rested. The illiterate had ‘practical’ or ‘vocational’ training as labourers or farmers even if they had not obtained formal qualifications. Aruna Roy, in a recent article, has alluded to the politically astute character of some of the unlettered poor she has worked with. She suggests that democratic illiteracy has to do with specialized modes of governance which have no necessary connection with the ability to read and write. Secondly, critics of the literacy qualification highlighted the culpability of the colonial government in failing to ensure wider access to education. It was, according to this critique, unfair for the government to penalize persons for not obtaining educational qualifications, which it had failed to provide. A contemporary version of this argument urges that educational qualifications disadvantage certain sections of the population for whom the state failed to provide equal access to education. A final line of critique against literacy qualification urged that political participation was itself an important means of education about public affairs. This argument drew upon a Mill-ian understanding of politics as an educative process—ironically, Mill had endorsed the disenfranchisement of the illiterate—and suggested that illiterate people had become more politically aware through participation in previous elections, and would continue to do so if given the opportunity.

However, it would be a mistake to believe that the Empire’s assumed connection between capacity for democratic participation and illiteracy vanished at the stroke of the midnight hour. In addition to doubts about the wisdom of universal adult suffrage in the face of illiteracy, suspicion about illiterate persons’ capacity to manage a system of proportional voting as well as the cumulative vote emerged during the Constituent Assembly’s deliberations on the electoral system. Of more recent interest is the Assembly’s discussion on educational qualifications for elections to parliament (Article 84) and legislatures in the states (Article 173). Clause (c) of both provisions requires members to possess “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”. Professor KT Shah, a prominent educationist, unsuccessfully proposed that literacy ought to be a requirement for legislators in addition to citizenship and attainment of the stipulated age. Mahavir Tyagi, a Kisan leader from the United Provinces, objected that such a qualification would have excluded many like him from the very forum in which he was able to participate and voice objections to proposals such as Shah’s. Speaking on these provisions, BR Ambedkar clarified the ambit of clause (c) by suggesting that it was intended to cover “bankruptcy, unsoundness of mind, residence in a particular constituency and things of that sort”. Opposing the explicit formulation of a literacy qualification, Ambedkar argued that this was a matter best left to the Legislatures. “If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it”, he stated. Thus, the framers of the Constitution left open the option of limiting membership of legislative bodies to educated individuals.

Even as adult suffrage was introduced in postcolonial India, the political elite’s views on ability for democratic participation and its relationship with education did not constitute a clear break from the colonial government’s perspective. It is in this dishonourable tradition that one must locate the Rajasthan Government’s recent ordinance on educational qualification for elections to Panchayati institutions. Engagement with the past alerts us not merely to question the kind of exclusions such qualifications generate, but also argumentative resources that can be deployed to resist them.

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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)

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 11th 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 73rd 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 73rd 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 73rd 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 11th 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.

 

 

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