WHILE the ‘sound bytes’ of the high decibel ‘event’ of commemorating the ‘Constitution Day’ on November 26 and the discussion on the contribution of Dr Babasaheb Ambedkar and the making of the Constitution in the parliament marked the formal kicking off of the winter session had hardly died down, the Supreme Court came out with a shocker. Doubtlessly, that this year marks the 125th birth anniversary of Dr Ambedkar added to the solemnity of this discussion. This is notwithstanding the controversy over the appropriateness of the choice of November 26 over the customary January 26. Of course, this betrayed an attempt by the ruling dispensation to gloss over its conspicuous absence in the freedom struggle and contrarian ideological underpinnings on the citizenship based foundations of the ‘idea of India’ enshrined in the Constitution.

It will be pertinent to recall what Dr Ambedkar famously stated while commending the draft Constitution to the Constituent Assembly for adoption. He observed that ‘we are giving ourselves’ a basis to provide a system of ‘one man, one vote’, but we are a long way off from creating a society where we can have ‘one man, one value’; obviously referring to the existence of extreme economic and social inequality. Reiterating that the objective of the Constitution would be to pursue such a goal would be a cliché.

Ambedkar’s overarching constitutional vision was not an empty rhetoric, but emerged out of debates in the drafting committee and the assembly. In responding to the suggestion that educational qualification be provided for elected representatives, Ambedkar left it to the wisdom of legislatures. But a member and freedom fighter Mahavir Tyagi was more emphatic, “The majority in India are illiterate persons. Why should they be denied their share in the administration of the country? I wonder why literacy should be considered as the supreme achievement of men. Why should it be made as the sole criterion for entrusting the governance of a country to a person, and why art, industry, mechanics, physique or beauty be not chosen as a better criterion”. Similarly, on the issue of property-based qualification, Ambedkar observed that there was “certainly no intention that the property qualification should be included as a necessary condition for candidates”.

Therefore, the republican constitution unequivocally moved away from the British colonial legacy of creating a ‘limited electorate’ towards a system based on universal adult franchise from day one.

THE RAJBALA

JUDGMENT

The two judge Supreme Court bench comprising Justices J Chelameshwar and Abhay Manohar Sapre on December 10, validated a Haryana law which bars those who are illiterate from contesting panchayat polls. The law under challenge in Rajbala was introduced by the BJP-run Manohar Lal Khattar government in Haryana in 2015, as an amendment to the Haryana Panchayati Raj Act, 1994. The amendment introduced five new disqualifications for those who seek to stand for any post in panchayat elections.

Under this amendment, those now disqualified from standing for elections are persons:

1.                    Against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than 10 years,

2.                    Who fail to pay arrears, if any, owed by them to either a primary agricultural cooperative society or district central cooperative bank or district primary agricultural rural development bank,

3.                    Who have arrears of electricity bills,

4.                    Who do not possess the specified educational qualification,

5.                    Not having a functional toilet at their place of residence.

Without going into the detailed data which was submitted by the petitioners and the fudging which was taken recourse to by Haryana government, the judgment is shocking in the cavalier attitude with which applies the criterion of ‘reasonable restrictions’ while granting the freedom to the legislature to impose such conditions under the garb of desirable public policy goals to strike at the very roots of ‘universal adult suffrage’.

Even a cursory glance at the new conditions proposed by the 2015 amendment would unmistakably establish a terrible contempt for inclusive and democratic representation and imposes the onus of achieving the targets of ‘public policy’ exclusively on the citizens themselves and overwhelmingly absolving the governments as enshrined in the Constitution.

On the question of criminal charges, the judgment overturns the existing jurisprudence of treating individuals as ‘innocent till proven guilty’. The wisdom of this gets accentuated in the light of the widespread public perception about partisan utilisation of the police administration against political rivals by the respective ruling dispensation and ‘framing’ them with grave charges. In such conditions to deny the accused the right to exhaustive judicial scrutiny is fraught with serious adverse ramifications. This is apart from the apparent vulnerability of the poor and the weak to secure fair justice from the existing administrative and judicial processes.

On the other grounds of disqualification, the naiveté of the judgment is even more galling. Is the failure in educational attainment attributable to the individual citizen? Apart from treating ‘education’ as restricted to criterion of formal access to schooling, the court’s approach is deeply flawed. The enshrining of ‘right to education’ as fundamental right and the subsequent enactment of the RTE clearly establishes the onus on the governments concerned to ensure them. The bench dismissed all pleadings to these structural issues cursorily by stating “It is only education which gives a human being the power to discriminate between right and wrong, good and bad." As if those not having such formal attainments are incapable of displaying such wisdom!

Similarly, indebtedness, particularly rural indebtedness in the country is clearly a structural question and born out of deep seated economic and social inequality. The proof of the contemporary agrarian distress prevailing in Haryana countryside and the incidence of farmers’ suicides for perhaps, the first time is perfunctorily wished off by accepting the trivialisation of the problem by the state government with fudged data. The court has ruled that an inquiry on the indebtedness of distressed farmers was "irrelevant", and held that "we are also not sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections". Who will run the panchayat then? The obvious answer is: the upper castes, rich and propertied people only.

A similar pattern emerges on clearance of electricity dues and possessing pucca toilets to be eligible to contest. In effect, the grounds of disqualification become bargaining counter for private electricity companies and fictitious signpost for achievements on sanitation for the Haryana government! The court holds, “As rightly pointed by the respondents (state of Haryana), if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will.” Even if one accepts the desirability of these requirements and wishes off the grim reality that hamstring and exclude a large number of potential contestants, can these become the ground for disempowering them in being part of an inclusive process of democratic participation in institutions of local self governance, let alone representing the people whose prerogative of having a choice is severely curtailed!

DEVASTATING

IMPACT

That the impact of all these is devastating is there for all to see. Forget about the flawed computation of data independent of what has been provided by the government and complete overlooking of those rendered by the 2012 census, the court itself accepts that out of 96 lakh eligible voters, 42 lakh will be disqualified from contesting the elections. In case of Scheduled Castes, 68 percent women and 41 percent men will be disqualified from contesting.

This is big time exclusion! And this is despite the fact that, the principle of universal adult suffrage is embedded in Articles 325 and 326 of the Constitution. The right to be chosen is enshrined in Articles 84 (parliament), 173 (legislative assembly) and 243 (C) (composition of panchayats). Increasing literacy cannot be a rational justification for introducing educational disqualification in the matter of exercising one’s civil and political rights. Stated objectives of the 73rd Amendment noted that the object of constituting the panchayati raj institutions is to remedy the “insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women”. It is an irony that this judgment delivers a body blow to this stated constitutional objective.

Justice Chelameshwar himself in a dissenting observation elsewhere pointed out -“Electoral rights and the electoral process are the source and product of the constitutional scheme of establishing a democratic republic. If a principle laid down by the Supreme Court is demonstrably inconsistent with the scheme of the Constitution it becomes the duty of the Supreme Court to correct the wrong principle laid down.” It is his own laid down principle which needs to be applied on the current judgment!

These amendments initiated by the BJP led government in Haryana harks back to the days of district boards of the thirties when the landed gentry alone were eligible to hold posts in local bodies.

The BJP-ruled states are attempting to convert panchayats into elitist political institutions. It is unfortunate that the Supreme Court should uphold these provisions and facilitate such obnoxious designs. The fundamental flaw lies in courts holding the right to get elected as a statutory right and not a constitutional empowerment. Thus, even after having concluded that that the right to vote and the right to stand for elections is a constitutional right, the judgment makes it a prisoner to the present day policy goals of the state government.

An undercurrent that betrays this judgment is a disinclination to believe that institutions of panchayati raj can perform their function as representatives of India’s rural milieu without the patronising guidance of the State to redeem their constitutional responsibility. In this, the Supreme Court’s judgment in Rajbala reflects the middle class and upper class bias of its present composition.

The Supreme Court of India elevated itself to be the Supreme Court of Indians in the post-emergency judicial eighties. The structural adjustment of the court in aligning itself with the neo-liberal paradigm of the nineties has betrayed a conservative turn that has resulted in a series of disappointing judgments. Rajbala vs. State is perhaps, the starkest addition. Earlier the SC was famously described as the “last refuge of the oppressed and the bewildered”; but now the same apex court condescendingly states that “if people still do not have a toilet, it is not because of their poverty but because of their lacking the requisite will.” 

TOWARDS REMEDIAL

ACTION

The court was for the first time in its history deciding whether the right to contest an election was a constitutional right. For this reason alone, it was obliged to refer the case to a bench of five judges as required by Article 145 of the Constitution. It did not do so, despite a plea to that effect, of which there is no mention in the judgment. With the many brazen inconsistencies and self contradictions it has now become imperative that the constitutionality of the 2015 Haryana Amendment on the right to contest in panchayat elections be referred to a full Constitution bench for a review through an appropriately framed petition.

At the same time, it has become incumbent on the parliament to suitably amend the Constitution to set at rest all possible ambiguities and scope for conflicting interpretations on the principle of universal adult suffrage and the right to contest elections on that basis. The government faces the imperative of adopting that course if it has political will to translate its intentions stated on the floor of the parliament in course of the debate on observing the Constitution Day.