The States

Act of exclusion

Print edition : October 16, 2015

Manohar Lal Khattar, Chief Minister of Haryana. He said the amendments aimed to "improve the quality of leadership and governance in panchayati raj institutions". Photo: AHILESH KUMAR

The Haryana government postpones local elections after the Supreme Court, in response to a PIL petition, orders a stay of the amendments to the Haryana Panchayati Raj Act fixing minimum educational qualifications for candidates.

On September 22, the Haryana government decided to postpone the panchayat elections following a public interest litigation (PIL) petition filed in the Supreme Court challenging its decision to amend the Haryana Panchayati Raj Act. These amendments introduced certain conditions for people wanting to contest elections.

On September 7, in a move that defied logic and smacked of elitism, the Bharatiya Janata Party (BJP)-led government in the State passed amendments to the Haryana Panchayati Raj Act, 1994, placing extraneous criteria such as having a minimum educational qualification, possessing a pucca toilet, and not having defaulted on any bank loan or electricity dues on persons desirous of filing their nominations.

With one stroke, the amendment, which was brought in initially through an ordinance on August 14, debarred thousands of otherwise-eligible candidates from contesting the elections. It was, in effect, a penalty for being poor. Article 326 of the Constitution has already laid down grounds for disqualification; these were additional criteria passed by the State legislature.

According to the amendments, general category candidates require a minimum qualification of Class X pass, men contesting in Scheduled Caste category and women in general category need to be Class VIII pass, while women in the Scheduled Caste category need to be Class V pass to be eligible.

Further, those who have failed to repay loans taken from any primary agricultural cooperative society, district central cooperative bank or district primary cooperative agricultural rural development bank or those who have defaulted in the payment of electricity bills or failed to submit a self-declaration that they had a functional toilet at their residence would also be unable to contest.

The ordinance was first challenged in the Punjab and Haryana High Court, which, on August 21, stayed the expanded criteria for disqualification. Even as a decision on that writ petition was awaited, the government moved the amendment to the Act on the last day of the monsoon session of the State Assembley which passed it without any difficulty. However, the Act was challenged in the Supreme Court, which granted a stay on September 17. The State government, represented by Attorney General Mukul Rohtagi, appealed for the vacation of the stay on the grounds that contesting elections was not a fundamental right but a statutory right and that the main objective of the legislation was to provide an educated leadership in panchayats/panchayat samitis and zila parishads so that the function of these institutions could be discharged efficiently. The State government also contended that the minimum educational qualification was a policy decision not open to judicial scrutiny.

The writ petition, filed under Article 32 by three individuals— Preet Singh of Bhambheva village, Jhajjar district; Rajbala from Matana village, Fatehabad district; and Kamlesh from Kaimri village, Hisar district—averred that the amendment as well as the notification passed by the State Election Commission violated fundamental rights.

Counsel for the petitioners, Kirti Singh, Sanjay Parikh and others, argued that a minimum educational qualification could not be considered a necessary condition for the effective discharge of duties by a person holding public office. They quoted a previous order of the Supreme Court passed in 2003 ( PUCL vs Union of India) where the court had held that “to say that well educated persons such as those having graduate and postgraduate qualifications will be able to serve the people better and conduct themselves in a better way inside and outside the house is overlooking the stark realities”. They quoted an even more recent order, passed in 2011, where the court had held that village-level democracy was the bedrock of a long career in public life and that disqualifying people from contesting such elections could prove disastrous to democracy at the grass-roots level.

Interestingly, while hearing arguments on the appeal challenging the stay, the Supreme Court opined that going by the literacy figures given by the government, the fixing of minimum educational qualifications to contest panchayat elections would “straightaway” debar 50 per cent of Indians. The bench, consisting of Justices Jasti Chelameswar and A.M. Sapre, expressed particular concern over the condition relating to educational qualification.

Seeking vacation of the stay, the Attorney General said that as the elections had been notified on September 8 under the new law, several persons had already filed nominations. Counsel for the petitioners argued that the Act would defeat the purposes originally espoused in the 73rd Amendment of the Constitution, such as people’s participation, grass-roots democracy and equality of opportunity. Going by Census 2011, they said that 56.8 per cent of people above 20 and in the general category would be excluded from contesting if the criterion of a pass in matriculation was applied (47.42 per cent males and 66.94 per cent females). It would exclude 83.06 per cent of the Scheduled Caste women and 71.76 per cent of all women from contesting zila parishad elections.

It was also argued that the absence of a functional toilet at one’s residence would in no way deprive one the ability to perform effectively one’s functions in public life, that it was the state’s responsibility to provide its citizens with basic amenities. Likewise, the state had a duty to provide free and compulsory education to its citizens, it was pointed out. It was also argued that failure to pay electricity bills or agricultural loan arrears was unrelated to the classification and object of the Act and their default could arise from a number of reasons.

Biased against farmers

The petitioners held that the provision was biased against impoverished farmers and that Indian agriculture was undergoing severe distress at the moment. They also held that it was violative of the Representation of the People Act, 1951, as neither the Act nor the Constitution prescribed any such disqualifying grounds. It was highly contentious that while privileged persons with greater access to opportunities were not required to receive a formal education in order to contest elections, the most disadvantaged sections were, the petitioners said.

Sixty-two year old Preet Singh, a farmer leader of the All India Kisan Sabha, was elected as the panch of the Bhambheva Gram Panchayat in 1991-94. He, along with the two petitioners in their districts, has been an active campaigner for women’s rights and against honour killings and atrocities on Dalits. Under the new Act, all three stood disqualified because of their low educational qualifications. While Preet Singh belongs to the general category (Jat), Kamlesh is a Dalit and Rajbala belongs to the OBC (Other Backward Class). Preet Singh pointed out that there were three legislators in the Haryana Assembly who had failed Class VIII.

Apparently, the inspiration to put in place the disqualification criteria was Rajasthan, also ruled by the BJP, the underlying logic being that they would, in the words of Chief Minister Manohar Lal Khattar, “improve the quality of leadership and governance in panchayati raj institutions”. The High Court of Rajasthan, while hearing a similar plea challenging the amendment to the Rajasthan Panchayat Act, had observed that such disqualification criteria would negate the object of self-governance at the grass-roots level, people’s participation and social justice. As the election process had started and nominations had been filed, the new law came into force in Rajasthan despite widespread opposition to it.

The Haryana government argued that illiteracy was an excuse commonly used by elected representatives for the poor functioning of gram panchayats, panchayat samitis and zila parishads. In a note explaining the amendments, the government stated that most elected members were dependent on their friends or relatives or government functionaries who often took advantage of them. But it is argued that accountability should lie with government officials.

According to Ranbir Singh, former Dean, Social Sciences, Kurukshetra University, the Haryana government’s move can be viewed as a progressive decision on the one hand but a retrograde one on the other. He recalled that the Haryana Administrative Reform Commission had recommended in its “Report on Functional and Financial Empowerment of Panchayati Raj Institutions” (2011) that “the minimum qualification of middle, matriculation and graduation be fixed for election as sarpanch, chairperson/vice-chairperson of panchayat samiti and president/vice-president of zila parishad”. These recommendations had been accepted by the then Chief Minister, Bhupinder Singh Hooda, at the conference of the representatives of gram panchayats, panchayat samitis and zila parishads held at panchayat bhawan, Karnal, on January 11, 2011.

For the moment, the elections have been postponed as the court’s final verdict is awaited.

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