The Supreme Court judgment upholding the new Haryana panchayat law, which limits the voter’s freedom to choose his own candidate in a participatory democracy, offers limited and unidimensional explanations to questions and issues raised by parties in court.
The judgment by a Bench led by Justice J. Chelameswar does not explain why it considers disqualifications in Section 175 of the Haryana Panchayati Raj (Amendment) Act 2015, including the lack of minimum educational qualification, electricity bill arrears, agricultural loan arrears and absence of a functional toilet at home, reasonable.
In fact, the entire verdict is hinged on the argument that these disqualifications were introduced by the Harayana Legislative Assembly in its “wisdom”.
The Hindu goes through the records of the case to realise that the questions posed and issues raised by the three women panchayat candidates represented by advocate Kirti Singh and organisations like People's Union for Civil Liberties through its counsel Sanjay Parekh range from the purely constitutional to the commonsensical.
Here are some of these questions drawn out from the court papers:
Legal questions:
1. Why do the same disqualifications not apply to the MLAs of Haryana Assembly?
2. Article 243-F (1)(a) mandate that the disqualifications for an MLA and a panchayat member should be the same under the Constitution and the Representation of the People Act, 1951.
3. Does the Haryana law not create an anomalous situation that a person facing disqualification in panchayat elections can contest the elections for MP and MLA?
4. Is it not true that though State legislature has the power to make laws under Article 243(1)(b) of the Constitution, these laws cannot be contrary to the constitutional provisions or against the very foundation of democracy?
5. The 73rd and 74th Constitutional Amendments introduced Panchayati Raj to focus on issues like poverty, illiteracy, shelter, unemployment at the grass root level. So should the representative at the panchayat level not be someone who is aware of these problems?
6. India is a signatory to the United Nations International Covenant on Civil and Political Rights. Is the Haryana law not contrary to Article 25 of the Covenant that persons otherwise eligible to stand for election should not be excluded by discriminatory requirements such as education, residence, descent or political affiliation?
7. Is the Haryana law not violative of the Supreme Court’s own judgment by Justice Krishna Iyer in Mohinder Singh Gill v. Chief Election Commissioner that the “little man’s right to rise to prime ministership or presidentship cannot be wished away”?
8. Was the Haryana law not violative of the Supreme Court judgment in Union of India v. Association for Democratic Reforms of 2002 which held that no law can restrict a voter’s right to decide for himself whether educational qualification or property of a person is relevant for the latter to be elected or re-elected as his representative?
Questions on minimum educational qualification:
1. The Haryana law mandates that matriculation is required for a general male candidate, middle pass for a general woman candidate and for Scheduled Caste (SC) male candidate and only Class 5 pass for a SC woman candidate. Man or woman, SC or general, the functions of a pnchayat member is the same. So if a Class 5 pass is enough to discharge a member’s function, why has a higher qualification of middle pass and matriculation pass been imposed?
2. If politics is indeed the “last refuge of a scoundrel” as T. T. Krishnamachari said in the Constituent Assembly Debates or if basic education helps a human being distinguish between good and bad, right and wrong, why does none of the pertaining to elections of President (Article58), Vice President(Article 66(3)), Member of Lok Sabha, Rajya Sabha or Member of Legislative Assembly(Articles 84, 102, 173 and 191), not have education as a qualification or disqualification?
3. Did the Supreme Court not observe in its 2004 judgment in People’s Union of Civil Liberties vs. Union of India that character, sense of devotion to duty and concern for the welfare of the people is not the monopoly of well-educated persons?
4. Article 21A of the Constitution has made education up to the age of 14 as a Fundamental Right. Is it not because of poverty and inaccessibility that families are not able to provide education to their children?
Question on the requirement of a ‘functional’ toilet at home:
1. A ‘functional’ toilet requires, as it is understood, a flush system and lots of water. There is no data produced by the State of Haryana that a pipeline is available to all the people in their State. Without pipeline, can a functional toilet facility be run?
2. Questions on requirement that a person going to contest panchayat polls should have electricity bill arrears:
3. The judgment found no “constitutional infirmity” in the Haryana government’s argument that the disqualification was introduced to help power generation and distribution companies collect their dues. How can a candidate who has paid electricity bill be more suitable than a person who has not paid the electricity bill?
4. Why did the law not take into consideration that a person may not be able to pay his bill on time due to poverty; or for the simple reason that the bill was not delivered by the discom on time; or the meter is faulty; or the possibility of wrong calculation of arrears or the person is bonafide unaware of his dues?
Questions on the requirement that a person should not have defaulted in payment of loans to contest as Sarpanch:
1. The judgment acknowledges the phenomenon of debt-ridden farmers committing suicide, but says the farmers in Haryana are “more prosperous”. Haryana government justifies insolvency as a disqualification to help Primary Agricultural Cooperative Societies (PACS) and the Agricultural Rural Development Banks/Primary Land Development Banks (PLDBs) recover.
2. The provision concerned in the 2015 Act only uses the phrase “any arrears of any kind”. It is not an amount adjudicated by any quasi-judicial or court of law. In contrast, the Constitution provides that a person cannot contest as MP or MLA only if he is an “undischarged insolvent” – that is he should be declared insolvent by a court of law. Is this not discriminatory?
3. Why did the court not question the Haryana law’s intention to use the Sarpanch as a “deterrent” against defaulters?
4. Did the judgment take into consideration the reports of the NCRB that a total number of 2,70,940 farmers committed suicide from 1995-2011?
5. Did the judgment take into consideration that as per the Arjun Sengupta Report of the National Commission on Enterprises in the Unorganised Sector(2007) the average monthly income of farmers per household from all sources is estimated at Rs.2, 150, while per capita income is as low as Rs.385, at all India level and the per day consumption of a member of a farmer’s family is about Rs.15 per day?
