THE recent judgment of Supreme Court (Rajbala & Ors. Vs. State of Haryana & Ors) upholding the amendments to the Haryana Panchayati Raj Act has been widely perceived as unjust, anti people, and exclusionary.  In effect, it disqualifies a majority of persons including the most poor and marginalised sections of Haryana from contesting elections. 

These amendments add certain educational and other disqualifications for contesting elections to the three-tier panchayati raj institutions. They stipulate that a person has to pass the matriculation examination to contest. However, a woman candidate or a SC candidate has to pass middle school (8th class) to contest for any post and a SC woman is required to pass Class V to contest for the post of a panch only. Apart from this if a person fails to pay his electricity bills and any arrears due from him to any Primary Agricultural Cooperative Society, District Central Co-operative Bank and District Primary Co-operative Agriculture Rural Development Bank, he is also disqualified from contesting for any post. All candidates are also required to submit a self-declaration to the effect that he has a functional toilet at his place of residence.  

The amendments were challenged by three petitioners, two of whom (Kamlesh and Rajbala) are members of AIDWA and one (Preet Singh) a member of the Kisan Sabha. Two of these petitioners had earlier been elected to the panchayat / panchayat samiti and all of them wanted to contest the forthcoming panchayat elections. They all have a long history of struggle for social and political causes which was also detailed in the petition. Though they were literate, they had not been formally educated. They challenged that their right to equal opportunity to contest elections was violated by these amendments under the equality clause,  Article 14 of the Constitution. They pointed out that the stated objective of the amendments, to provide good governance and to have people who were “model representatives” of the panchayat, had no connection with the amendments and that the amendments were discriminatory, unjust and arbitrary. It was also pointed out that MPs and MLAs who performed far more onerous tasks of legislating and discussing policy and passing the budget etc had no such disqualifications prescribed for them to contest elections.

The petition quoted census figures to show that the amendment prescribing educational qualifications will exclude a large number from contesting election for no fault of theirs but because of the failure of the State to provide them education. It was pointed out that the State of Haryana only promulgated the Right to Education Rules in 2011 and had not provided schools with teachers etc to the petitioners and others who were eligible to stand. The disaggregated data presented to the Supreme Court by the petitioners showed that 55.63 percent of non SC men had not passed matriculation, 68.65 percent of non SC women, 62.16 percent of SC men, and 83.06 percent of SC women had not passed the required 8th Class and for contesting the post of only a panch 67.52 percent of SC women had not passed the required 5th Class and all these would be disqualified from contesting. The government led by the attorney general had only provided figures which counted all those who had studied upto class V and above together and tried to misguide the court by stating that only 43 percent people will be ineligible to stand. It also stated that panchayat members had to be educated because they had to perform important executive functions while MPs and MLAs did not perform any such functions!

The SC  held that 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 educational qualification is relevant for better administration of the panchayats.” The fact that earlier judgments of the court had held that what matters in an elected representative is his “character and sense of devotion to duty and the sense of concern to the welfare of the people” and that these characteristics were not the monopoly of the educated (PUCL vs. Union of India,2003 SC) and that the 73rd amendment had specifically been brought about to make panchayati raj more inclusive and to replace the “village oligarchy” with the rule of the common man (Bhanumati & Ors. Vs State of Uttar Pradesh & Ors., 2010 SC). A Rajasthan High Court judgment had also recently held that, ”in order to lead in a democratic governance, a person is required to understand the needs of social development and require the mental attribute of being wise in the estimation of the people, who elect her for representation.  Any law which disqualifies a large section of rural population on the ground of non-attaining the educational qualifications, is thus, prima-facie, arbitrary, irrational and unreasonable.”

 The court further held that since an insolvent could not contest election to the parliament and the state assembly there was “no harm” in disqualifying persons who had not paid their debts to agriculture cooperative banks etc and those who had not paid their electricity dues. The petitioners argued that Haryana was in a state of agricultural crises and that many farmers, due to unseasonal rain and consequent crop failure this year and because of mounting debts and inability to survive have committed suicide and that the suicide rate in Haryana has been 3 to 4 times more than in Punjab and Himachal Pradesh during the past decade.  This fact has even been acknowledged by the chief minister of Haryana with promises of rescheduling payment of crop loans and waiver of power tariff of farmers.  Even in the NSS, Key Indicators of Debt and Investment in India, 2013, the incidence of indebtedness in a cultivator family was 32.92 percent and total number of indebtedness in rural families is approximately 24 percent.  It would be highly discriminatory on the part of the State to punish and disqualify those who have not been able to pay debts because of reasons beyond their control and because of poverty. It was also pointed out that while those who had taken huge amounts of agricultural loans from commercial banks were not disqualified from contesting, only those who belonged to the poor and most marginalised sections were being targeted. The Court however, relied upon the contentions of the respondent that the agricultural sector in Haryana “is relatively more prosperous compared to other parts of the country” and that incidents of suicide were ‘very negligible’! It also shockingly pronounced that “elections at any level at this country are expensive affairs…….. in such a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it could be beyond the economic capacity of such persons. In our opinion, the challenge is more theoretical than real”.  No mention was made of the fact that heavily indebted persons can and do contest elections to parliament and the legislative assemblies.

The petitioners had also argued that failure to have a toilet was also a result of abject poverty and due to homelessness. They had attached the census data and a 2013 study conducted by the 69th NSSO on Key Indicators of Drinking Water and Sanitation Hygiene and Housing Conditions in India to show that approximately 25 percent  of the houses were found to be without toilets. The Court relied upon the data produced by the State that approximately 7.2 lakh BPL households out of 8.5 lakh BPL households had availed of a scheme by the government to construct a toilet and it was because persons did not want to have a toilet that they had failed to construct one. It commented on the ‘unhealthy practice’ of defecating in public and squarely blamed the people for ‘lacking the requisite will’ to build one and stated that ‘those who aspire to get elected must set an example for others’.

In short, the judgment squarely lays the blame on the underprivileged and marginalised citizens of Haryana for what is widely recognised as failures of the State to provide them education and other basic facilities and for reasons beyond their control.