Law

A Judgement on Democracy That is Frightening in Its Implicatons

Credit : Wikipedia Commons

Credit : Wikipedia Commons

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 judgment 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.

Indira Jaising is a Delhi-based lawyer in the Supreme Court. She argued the case against the Haryana law for the interveners from the State of Rajasthan.

  • S.Thiyagarajan

    Some people are in the habit of protesting about anything and everything just for the sake of it. The states have empowered women at the grassroot level by reserving certain percentage of Sarpanch posts for them. It is a open secret that the husbands act as proxies for many women sarpanchs because they are totally illiterate. If the sarpanchs are atleast functionally literate this potential problem can be averted. Moreover the main function of the local bodies is to maintain sanitation in their area and if the sarpanch himself/herself defecating in the open, how can he/she enforce sanitation in his area. that is the reason the SC has added this condition for sarpanchs. This is a well thought out judgement. The point on minimum qualification will motivate families to send their children to schools and the dropout rate will be much reduced. Actually the right to vote is absolute but the right to contest an election is not. Already there are restrictions like insanity, insolvency, conviction for more than two years and absconders and tax defaulters. So the SC has just added some more classes to the existing list. This judgement will create a huge awareness in the rural masses about home toilets and minimum education and the results will be felt in the years to come. There is absolutely no constitutional violation.

    • abhi

      Well said , Sir .

  • Swaraj

    I don’t agree with Ms Jaising’s criticism. It is high time we force people to educate themselves (even if its formal) for a few decades. Its like reservation, we need compulsory education in this country for next few decades, after that we can review and decide. We have had too much democracy. We have to start somewhere, we cannot continue to hope people will do it themselves. They haven’t done it for 65 years. Have we stopped producing children like crazy – don’t we see that we will destroy this country if we continue our population growth at current levels. We produce children even though we can’t educate them or give them a decent life. No doubt the government must improve and make education freely available to all. Have we kept this country clean – No. Lack of Education is the root of all evil in this country.

    • abhi

      Satya vachan .

    • kautilya_in

      Yes, lets first have compulsory education, which also means there are schools close to every village.

  • dilip

    Class, gender-related and caste prejudices are not expected to enter the judicial process. The SC is meant to uphold the basic structure of the Indian Constitution. Matters regarding how many children we produce and how much education was made available to us, etc., should be debated in society at large. There are two simple but profound points that show up the opinion of the 2-judge bench to be grossly violative of the constitution: “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.” (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). This judgement is deeply flawed and needs to be reconsidered by a full Bench. Democratic minded citizens will need to launch a satyagraha against it.

    • Swaraj

      Agree, this rule must apply to all elected representatives – MPs, MLAs etc. An uneducated person cannot have the world view to govern. 90% of the time s/he will only fill his pockets and find ways to make money as s/he has no other skill to earn his/her living.

  • Nandakumaran Paruvakat

    What was the obvious benefit of not having this restriction all these years?

  • Gargi Harithakam

    What I dont understand is, how is the supreme court verdict going to ‘force’ people to educate themselves in villages without schools, in villages without enough affordability to send children to schools. These people who have commented at the bottom are ignorant about the basic facts of the country. If there is enough food and enough facilities, and people dont send children to schools, then too it becomes the government’s problem to solve it, not the people’s. The goverment is for,by, and of the people – it cannot force its convictions on them. This verdict is very sad, and anti-people.

    • vaibhav

      don’t you think people also have some role to play in democracy? it would be very selfish of us if we expect govt. to feed us everything in mouth. If we want development everybody needs to stand up and contribute.
      Also in haryana there are enough schools to educate everyone and i think you must have heard of “RIGHT TO EDUCATION” under which everyone is entitled to free education 🙂

  • Sahil

    You say that Higher educational attainment has not prevented the politicians from being corrupt.Point taken.

    But let me ask you this, even after all these years of having the right to contest the elections,why have the panchayat leaders not been able to provide basic toilets to most villagers as you mentioned in your article?

    And how far have the Illiterate Panchayat and local body leaders been helpful in the development of the villages??

    Mrs Jaising,Perhaps you need to leave these topics to the judges.They know better.

  • Arun Ohri

    Open school examination system allows any one above age of 15 to directly appear in matric examination without any formal education.

    State of Harayana should provide similar direct examination facility for middle standard.

    Given the fact that next election will be held after 5 years, all prospective contestants have enough time to qualify for same.
    Numbers given in article are not tallying with supreme court judgement. For women and SC’s criteria is middle pass

    If person have a mud floor they can still make a toilet in their premises. Pucca house has no connection with toilets. Even houses with mud floors can have a functional toilets

    I think that act provides you can have debts but not unpaid arrears. I would love to know name of private electricity distributor who has dared to agree to distribute electricity in rural areas given the problems enumerated by Ms Jaisingh herself, he deserves to be honored by hammering his share prices given the level of risk he has undertaken

    Persons who feel that it should have been decided by 5 judges bench are free to take matter by way of curative petition.

    Incidentally to contest election you don’t have to reside in that village so if someone feels unrepresented as a block can import a candidate

    I agree that these qualifications/disqualification should also be applied to MPs/MLAs

    Incidentally in Maharashtra under cooperative society act, you can not contest a society election if you owe money to them (I am told similar law exists in multiple locations), given that primary agriculture credit system is financed by State Government I can see nothing wrong in protecting their interest

    More interesting part of the judgement is that a law can be arbitrary if some how their is nexus with objectives it is trying to achieve. I am not certain about this logic. Today it is arbitrary for good purposes though linkage are poor but what happens when objectives themselves are questionable