A disaster for democracy

Published : Dec 23, 2015 12:30 IST

At Lahli village in Haryana, Kamlesh, a labourer, stands next to the community toilet near her home. Her application to contest for the village council was rejected apparently because her home did not have a toilet.

At Lahli village in Haryana, Kamlesh, a labourer, stands next to the community toilet near her home. Her application to contest for the village council was rejected apparently because her home did not have a toilet.

THE recent Supreme Court ruling in Rajbala and Others vs the State of Haryana , by a two-judge bench of Justices J. Chelameswar and Abhay Manohar Sapre, must rank as one of the most retrograde judgments in the history of that august court. It dismissed the challenge to the constitutionality of the Haryana Panchayati Raj (Amendment) Act of 2015. In effect, it can be interpreted as a direct attack on democracy, with extremely adverse implications for the process of making our political system more inclusive, accountable and representative. Indeed, it goes against the very spirit of the Constitution and the founding vision of Dr B.R. Ambedkar, ironically the man whom the Central government has belatedly chosen to honour.

The case was brought against the Bharatiya Janata Party-run government of Haryana, which recently passed a law in the State legislature to prevent people who do not meet certain criteria from contesting panchayat elections. The Constitution already allows debarring of candidates for elected office on the basis of mental incapacity, insolvency issues that could create conflict of interest with the office, or criminal conviction. However, the Haryana Act goes much further in restricting the category of eligible candidates to what would become a minority of the total eligible voters.

The new provisions of the Act ensure that a person cannot contest panchayat elections if s/he

(1) has not been convicted but charges have been framed in a criminal case for an offence, punishable with imprisonment of not less than 10 years;

(2) fails to pay any arrears of any kind due by him to any Primary Agriculture Cooperative Society, District Central Cooperative Bank and District Primary Cooperative Agriculture Rural Development Bank;

(3) fails to pay arrears of electricity bills;

(4) has not passed matriculation examination or its equivalent examination from any recognised institution/board (for women Scheduled Caste candidates, minimum middle school pass; and for women S.C. candidates for post of Panch, 5th class pass);

(5) fails to submit a self-declaration to the effect that s/he has a functional toilet at her/his place of residence.

Haryana is not the only State to have passed such a regressive law—the State of Rajasthan, also ruled by the BJP, passed a similar law recently. But the Supreme Court judgment is particularly appalling because if it is not challenged and taken to a full bench (which surely should have been done in the first instance for such a significant decision) it can become the standard for the entire country.

Damaging implications

Each of these conditions on eligibility to contest panchayat elections has huge implications that are very damaging for democracy and for the constitutional rights of citizens. Let us consider each of these in turn.

The curb on the candidacy of those who have been charged but not convicted of crimes is a serious problem because all those who have had false cases slapped against them for various reasons would be prevented from exercising their right to contest elections. It is well known that trade union leaders, social activists and other citizens who are actually keeping our democracy alive through their activities in mobilising people against injustice run very high risks of having extremely severe and punitive cases against them, often on flimsy or non-existent grounds. The irresponsibly slow pace of our judicial system means that such cases can drag on for years, if not decades. This judgment will mean that such people, even if they are completely wrongfully charged, cannot contest in local level elections that would promote grass-roots democracy.

By contrast, local strongmen and actual criminals with political clout who can manage to have the cases against them removed, could continue to participate as candidates.

The second addition disqualifies those who have any arrears with local cooperative credit agencies of various kinds. Note that this is really sweeping because it refers simply to having arrears rather than being declared insolvent, which is a more widespread provision. The high levels of indebtedness of farmers and other small producers in local areas and the difficulties of repayment in the context of greatly increased uncertainties in cultivation and in input and crop prices are so well known that the learned judges also note them in their judgment. Preventing those with any arrears from contesting elections would amount to preventing those who are directly aware of the suffering of cultivators through their own experience from having a say in local self-government.

Bizarre argument

The bench’s verdict that this is justifiable is based on an argument that is both bizarre and cynical and therefore deserves to be quoted at some length: “We can certainly take judicial notice of the fact that elections at any level in 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 would be beyond the economic capacity of such persons. In our opinion, the challenge is more theoretical than real. Assuming for the sake of argument that somebody who is so indebted… is still interested in contesting the panchayat elections, nothing in law stops such an aspirant from making an appropriate arrangement for clearance of the arrears and contest elections” (pages 55-56). This betrays a breathtaking ignorance of the actual conditions prevailing in the countryside for millions of small peasants, as if the act of non-payment of such dues is simply a voluntary decision that can be casually reversed.

A similar argument can be brought against the restriction on those with arrears of electricity bills, even when these are disputed. More to the point, this seems like an extremely discriminatory response to poor rural people with debts that are large relative to their income but small in absolute value, when those who run large corporations that have been habitual offenders in terms of not paying their debts are not just allowed but often positively encouraged to run for elections at State and national levels. The elitist mindset that runs through such a position is unfortunately only too evident.

But such elitism reaches its apogee in the verdict’s justification of disqualification on the basis of educational qualifications. By their own reckoning, the judges note that the suggested criteria would immediately disqualify more than half of the women in rural Haryana from contesting panchayat elections. In addition, deprived categories would be especially hard hit: 68 per cent of S.C. women and 41 per cent of S.C. men would be ineligible to contest panchayat elections. (Among the many ironies involved in this, note that the legislature that passed this law includes one MLA declared as “illiterate”, four as less than matriculate and eight who have just passed their matriculate examinations.)

However, the judgment finds that this widespread exclusion is not a problem. It states: “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” (pages 50-51). In other words, unless no candidates can be found who meet the criteria, it is a valid basis for restriction, even if it excludes most of the people and particularly the most vulnerable groups.

What is worse is that these people are being penalised for no fault of their own, since it is the state that is responsible for education or the lack of it. If the state has failed (and it has indeed dismally failed for more than six decades) to provide universal good quality schooling for all, why should citizens who have suffered from this lack of provision be discriminated against?

In any case, those who are too old to have benefited from the relatively recent Right to Education Act and are now adults can hardly put themselves through school and are unlikely to be admitted into any schools even if they so desire, so there is nothing they can do about their condition. Since, once again, it is the poor and marginalised groups that are worst affected, it means that they will be disproportionately excluded from the possibility of being elected people’s representatives.

But why is this restriction considered necessary when so many governments at the Central and State levels have included elected representatives and Ministers who have not met these criteria but have distinguished themselves in office and left a mark in history?

This is because the learned judges have come to the following conclusion: “It is only education which gives a human being the power to discriminate between right and wrong, good and bad” (page 49). Surely this is a perfect example of an oxymoron, in this case a sentence that contradicts itself, at least insofar as a judgment that springs from such highly educated sources can be seen as quite “wrong” and even “bad”.

Toilet question

The insistence on a functional toilet may be a nod in the direction of one of the current Central government’s flagship schemes, the Swachh Bharat Abhiyaan. But anyone who has tracked the often haphazard and hasty way in which this is being sought to be implemented will know that this is medicine that is being administered without any real consideration for the illness or the requirements of the patients.

Any kind of functional toilet is considered acceptable (even those that continue to be cleaned by manual scavenging) but it has to be within the home. What about those who are homeless (according to the 2011 Census, nearly one third of the population has no permanent residence)? Or those whose cramped conditions in tiny plots simply do not allow it, and so they are forced to depend on communal lavatories? Indeed, many government programmes actually build such communal toilets in small settlements. Why should such people be prevented from contesting local elections? The judges believe that “if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will” (page 59). But this is yet another sign of ignorance of the ground realities prevailing in many parts of the country, especially about poor and socially marginalised communities.

This judgment of the Supreme Court is especially worrying because it comes in the wake of other trends that are suggesting a reinforcement of elite control—and in some cases even corporate control—of local bodies. The recent takeover of a panchayat in Kerala by the “Corporate Social Responsibility” wing of a textile company is a case in point. Apparently, courts and elections commissions alike do not take cognisance of the clear possibility of conflict of interest in such cases. The company concerned had earlier been involved in disputes with the previous elected panchayat over the contamination of water sources and the prevention of trade union activities within the company.

These are extremely serious issues for anyone concerned with the fate of Indian democracy. The necessity of an appeal against this judgment and consideration by a full bench of the Supreme Court is obvious. But if even the Supreme Court fails to uphold the spirit of the Constitution, it is important for people across the country to mobilise themselves for legislative changes that will prevent such attempts at elite control.

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