Friday, December 11, 2015

Satya Prakash: Apex court order on Haryana panchayat polls may hurt the weak // INDIRA JAISING: A Judgement on Democracy That is Frightening in Its Implicatons

The court was for the first time in its history deciding whether the right to content 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: Indira Jaising

One needs to have certain minimum educational qualification to contest panchayat polls but there is no such requirement for a person attempting to be an MP or an MLA: Satya Prakash

The Supreme Court’s verdict upholding the validity of a Haryana law making it mandatory for a candidate contesting panchayat elections to have certain minimum educational qualification and a functional toilet raises many vital questions on the state of democracy in India. First, it has created an anomalous situation. One needs to have certain minimum educational qualification to contest panchayat polls but there is no such requirement for a person attempting to be an MP or an MLA.

The Supreme Court upheld the eligibility criteria keeping in view the powers, authority and the responsibilities of Panchayats as also the powers given to them to impose taxes and utilization of funds. “It is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned to Panchyats,” a bench of Justice J Chelameswar and Justice AM Sapre said.

My Lords! Doesn’t the same hold true for legislators?

Second, the verdict renders almost half the population, mostly poor and women, in Haryana ineligible to contest panchayat polls. Only 71.42% of the rural population in Hayrana is literate and the female literacy rate is just 66.8%. Most of them are just literates and not matriculates or educated up to class 8 or class five as required under the new law. This goes against the democratic spirit of the Constitution as it inadvertently excludes a large section of society from taking part in the dance of democracy at the grassroots.

“The Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest. No doubt such prescriptions render one or the other or some class or the other of otherwise eligible voters, ineligible to contest,” the SC said.

“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,” it said rejecting the challenge to the Haryana Panchayati Raj (Amendment) Act, 2015.

The Haryana law requires every panchayat candidate to have a functional toilet and no unpaid agricultural loan or electricity dues. This may be understandable as those seeking public office should be good citizens first. The top court may be right in holding that every person who is entitled to vote is not automatically entitled to contest for every office under the Constitution.

But to uphold the validity of a law that excludes the poor from the democratic process may force them to turn to undemocratic means to get their share of power in the system. This can have serious repercussions for the process of democratization and changing power equations in a largely feudal society that India is. Howsoever pious the ends may be, if the process of achieving those results into exclusion of a large section of country then it must be frowned upon.

Of late, courts have been showing more interest in larger issues bothering the society – be it air pollution, river pollution, criminalization of politics, or even nursery admissions. The judiciary is primarily meant to adjudicate disputes and protect fundamental rights of individuals rather than correcting larger malaise afflicting the system. Democracy has its own way of evolving and correcting its ills. That process hinges on participation of all sections of the population – educated, literate or Angootha Chhaap (illiterate).

The judgment of the Supreme Court in the Raj Bala case deals a near fatal blow to the health of the Indian democracy. In essence, the court has held that those who have no formal education, those who have no “functioning toilet” and those who are in rural indebtedness cannot contest an election for the position of sarpanch. The judgment effectively disenfranchises – and it recognises this – 68% of Scheduled Caste women, 41% of Scheduled Caste men and over 50% of all women in Haryana from contesting a panchayat election. Several other BJP-ruled states including Rajasthan have similar restrictions.

On the one hand, the court has recognised that the right to vote and the right to contest an election are integrally linked and the one flows from the other, and yet it has held that the right to vote in an election is based on adult universal franchise but the right to contest an election is not a universal right. But what is the universal right given to every citizen to vote without the concomitant right to contest an election and the right to choose a candidate of one’s choice? While one can disqualify a person from contesting if he or she has a criminal record, can the fact that you don’t have an education or a “functioning” toilet be equaled with having a criminal record? Apparently it can, as per the opinion of the Supreme Court of India.

Universal adult franchise, which carries with it the right to contest an election, is so fundamental to the very concept of republicanism and democracy the world over that no genuinely democratic country has imposed the requirement of formal education as a pre-condition to contest an election. Nor is there any such disqualification from contesting an election for MPs and MLAs in India. Mahatma Gandhi in his concept of Swaraj and self-rule had surely meant self-rule for the literate self and illiterate self alike. The judgment reinforces the power of the elite and will concentrate power in entrenched hierarchies.
In the opinion of the apex court, “It is only education which gives a human being the power to discriminate between right and wrong, good and bad”. To begin with, what is education is not defined; here it appears to be confined to a formal school education.

Secondly, while displaying a touching faith in formal education, the court betrays its innocence about fact that recent history has shown that highly educated politicians are today being prosecuted for corruption of a high order. When it comes to toilets, the Supreme Court appears impressed by the assurances of the Haryana government that it has a scheme under which it provides an amount of Rs. 12,000/- for the construction of a toilet. Relying on the statement made by the state that of the 8.5 lakhs house holders classified as families falling below the poverty line (BPL), 5 lakhs families have availed the benefits of the scheme, the court holds that the condition of owning a functioning toilet for contesting an election is a reasonable one.

The Court ignores the 2011 census data that more than 29% households in rural areas have no permanent residence – the homeless surely cannot own a toilet  – 27% of the households have grass or thatched roof homes, 38% have mud floor homes and 25% live in single room accommodation. Even if one were to take the figures of the state at face value, the toilets still have open drainage with no underground sewage system to take care of human excreta. More than 13.7% households do not have drainage facilities and almost two out of three houses have open drains.

Open pits and sewage tanks are still serviced by manual scavenging, the legacy of the abiding caste system. Swachha Bharat Mission guidelines themselves prohibit construction of insanitary latrines. Yet pit latrines and septic tanks are also counted as “functional latrines” from which excreta is removed by humans, thus qualifying a person to contest an election. The horrible picture that emerges is of insanitary latrines which can be a bigger threat to health and safety than no latrines. All this was brought to the notice of the court, of which there is no mention in the judgment.

In essence, cosmetic considerations seems to have prevailed over constitutional rights. 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.” This is like saying that people are poor because they want to be poor, unhealthy because they want to be unhealthy, uneducated because they want to be so . There is not a word in the judgment about the failure of the state to fulfil its own constitutional obligation to provide education and sanitation universally. Such tender handling of the state reminds me of the phrase used in the ADM Jabalpur judgment during the days of the Emergency (1975-77) by the late Justice Chandrachud, “ I have a diamond-bright, diamond-hard hope” that the state will treat its citizens like a benign mother.

On rural indebtedness being a disqualification from contesting a election, the petitioners pointed out that indebtedness was such that it was leading to large scale suicides. The court agreed with the state that such incidents are “very negligible” in Haryana as the agricultural sector of the state is relatively more prosperous compared to certain other parts of the country. As a result of this law, a member of a panchayat who owes money to a private electricity provider will be disqualified from contesting an election. Panchayats will thus become instruments of debt recovery for the private sector. Be a “role model”, says the court to the aspiring sarpanch. An entrenched elite will now take over panchayats. We already see the controversy in Kerala of the corporate sector capturing power in a panchayat election and the conflict of interest this brings about.

Perhaps the most frightening thing about the Supreme Court’s judgment is the methodology by which it has reached its conclusion. The court was for the first time in its history deciding whether the right to content 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. The judgment is also unacceptable for the reason that it expresses the view that several earlier judgments of the courts on the concept of the right to vote were given in ignorance of the correct position in law. However, those judgments too were binding on this court and for that reason too, if the court disagreed with them, they were bound to refer the matter to a larger bench. Judicial discipline required that to be done.

Finally this judgment will have to be described as one in which the court has abdicated its responsibility as a constitutional court for it holds “Justness of such a situation is once again in the realm of the wisdom of the legislation. We do not sit in judgement over the same.” Perhaps the public messaging on the Swachha Bharat campaign has entered so deep into the consciousness of the court that it has become its most prominent ambassador. 

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