The fight to make the right to contest elections a fundamental right is on, but in the meanwhile, hundreds of thousands of poor, Dalit and Adivasi people, religious minorities and women in two states are waiting in limbo.
New Delhi: By any account, Norti Bai is a trailblazer. As a construction worker in 1981, she won a legal fight on the chronic gender pay gap between men and women workers. Thereafter, she became computer literate, even though she’d had to drop out of school as a child.
She contested panchayat elections, becoming the first Dalit woman sarpanch in the village of Harmara in Rajasthan. As sarpanch, Norti Bai organised computer training lessons for the girls in the village, fought land mafia to build a hospital and had three thousand trees planted by villagers who she ensured were employed under the MNREGA scheme.
As a highly capable and effective sarpanch, who fearlessly stood up to powerful upper caste men in the village, built latrines and roads, hand-pumps and solar streetlights, she exemplified the spirit of the 73rd amendment, the central aim of which was to decentralise government in India.
Norti Bai should have been celebrated as a shining example of the success of the panchayati raj system, and a strong example of the power of those battling the horrors of gender, caste, and class discrimination in India.
Instead, right before the elections that Norti Bai would have re-contested were due to be announced in 2014, an ordinance was issued that disqualified her from running for sarpanch again.
Speaking at a panel discussion organised by the National Law University, Delhi and Dialogue for Democracy in New Delhi last week, Norti Bai said: “I got my rights for five years, and then they got taken away. In those five years, many women had started asking questions of the establishment. They have been let down. If we can manage the home, we can absolutely take part in the political process.”
Why was Norti Bai disqualified?
The Rajasthan Panchayati Raj Act, 1994, said that any candidates had to meet the following requirements in order to be eligible for contesting Panchayat elections:
- They had to have ‘a functional sanitary toilet in the house.’
- They had to have cleared Class X to become a member of a Zila Parishad or Panchayat Samiti. To run for sarpanch, they should have cleared Class V if contesting in a scheduled area, and Class VIII if in a non-scheduled area.
These amendments were passed by the Rajasthan state legislature on March 28, 2015, effectively amending the Rajasthan Panchayati Raj Act, 1994. They had an immediate and devastating impact on the political participation of poor people, Dalit-bahujan and Adivasi people, women and religious minorities in the state.
A full 75% of the rural population over the age of 20 became ineligible to contest sarpanch elections, and a much higher number was automatically disqualified from contesting block and district panchayat polls. A vast majority of women belonging to the Scheduled Castes – 93% – became disqualified.
Rajasthan is not the only state to have taken this step. Haryana too passed these amendments, first as an ordinance, and then as an Act. In Haryana, a general candidate must have passed class X to contest panchayat elections, while SC and women candidates need to have passed Class VIII in order to qualify. Any SC woman who wishes to contest the post of ‘panch’ must have completed Class V.
The Haryana amendments also include the clause for ‘a functional toilet’, and add property-based disqualifications such as failure to pay arrears to any agriculture co-operative society or banks, or even the failure to pay electricity bill dues.
Speaking about the consequences of the amendments on the political participation of women in Haryana, general secretary of the All India Democratic Women’s Associate Jagmati Sangwan said, “After the 73rd amendment, women were beginning to enter the mainstream of political life with the panchayat elections. There were debates about what they would do: would they go to meetings, would they go out to campaign, etc. Women were moving ahead with a lot of enthusiasm. But as soon as these amendments came into force, the dreams of lakhs of women who wanted to serve their communities and their panchayats were shattered.”
Preet Singh, a former sarpanch from Haryana who has also been disqualified from contesting, said, “I am speaking about my work from experience, not formal education. We may not be educated, but we know what we are doing. We can educate people with degrees about the issues affecting rural Haryana. A person with a PhD will not have the same knowledge. And people who can afford to are producing false certificates in order to qualify, whereas our honest and honourable work is being dismissed.”
Impact of the amendments
As a result of these amendments, both states have seen a large number of seats go uncontested or be won unopposed because only one candidate turned out to be eligible under the new criteria. Many seats lie vacant because nobody who qualifies can be found. In Rajasthan, 260 sarpanches were elected unopposed in the 2015 panchayat elections, while more than half of Haryana’s panchs were elected unopposed.
The criteria have had a detrimental effect on villages that languish without a sarpanch, and have wreaked havoc on potential benefits that affirmative action once provided. For example, 13 panchayats in Rajasthan went unopposed, of which 12 were reserved for SC/ST and women.
“Research shows that the connection between formal education and the panchayat system doesn’t exist. There is no connection between how much you have studied, and your ability empathise with people and meet their needs,” said Mani Shankar Aiyar, former Minister for Panchayati Raj.
Neera Chandhoke, professor of political science at Delhi University said, “To bar people and not recognise their political competency just because of formal education seems to me a violation of democracy.”
Chandhoke added, “Whose fault is it that people have not been educated? These amendments are punishing people for being disadvantaged. The kind of formal education we do have needs to be questioned, since the public university is in serious crisis. At the local level, people speaking back to power is a kind of education that is equally needed in India.”
Speaking of the clause to have a functional toilet, Bezwada Wilson, convenor of the Safai Karmachari Andolan said, “Can anyone make their own toilet functional? You can’t, but you are eligible because you have one. But the poor Dalit or Adivasi women workers who make your toilets functional are uneducated? Your problem is not toilets or education, it’s the fact that you don’t want to see this section of society within the political system at all.”
The Supreme Court judgement
The amendments were challenged at the Supreme Court, and a two-judge bench upheld the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, in a judgement that has since been heavily criticised for its conflation of the uneducated with the corrupt, the criminal and the inept. The Court ruled that “it is only education which gives a human being the power to discriminate between right and wrong, good and bad.” It dismissed the exclusionary impact of the amendments, and declared that if people did not have functional toilet in the house, it was not due to poverty but “because of their lacking the requisite will.” The judges also claimed that they were not sure whether “deeply indebted” people would be “genuinely interested in contesting elections.”
Both Norti Bai and Preet Singh expressed their objections to the judgement, taking a strong stance against what they assert is a criminalisation of poor people. “We had hoped the Supreme Court would hear our concerns, but our hopes were dashed,” said Singh.
Writing about the judgment, senior lawyer Indira Jaising, who argued the case on behalf of interveners from Rajasthan, said: “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.”
Speaking at the panel discussion, Jaising added, “What is painful about this judgment is that it is naked in its elitism. There is no attempt to disguise it. It is time for civil society to protest and say that certain Supreme Court judgements are just not acceptable.” Pointing out that the link between education and corruption is arbitrary, Jaising said, “This is the same court which has sent A. Raja to prison in connection with the 2G scam, and he has a law degree.”
Independent law researcher Dr. Usha Ramanathan said, “The idea of treating people in poverty as criminal is reflected in the fact that corruption is being used as a justification to keep them out. It is completely absurd to attribute corruption to poverty when the Vijay Mallyas of the world are getting away with defaulting on crores of rupees. What is more, there is no disqualification for people who build dry toilets in their houses, which means that the practice of untouchability is not being punished.”
Ramanathan added that the educational qualifications too are arbitrary and do not necessarily qualify one to become a panchayat leader. “It’s a shame how little we seem to know about the people we’re making decisions about. This is totally non-representative,” she said. “It is clearly a move to recapture spaces of power by the country’s elites.”
In March this year, the Opposition pushed through an amendment to the President’s address, which sought to force the Central Government to secure “the fundamental right of all citizens to contest elections at all levels, including to Panchayats to further deepen democracy.”
In April, Leader of Opposition Ghulam Nabi Azad introduced a private member’s’ bill in the Rajya Sabha to amend the Constitution. Azad’s bill seeks to override the amendments passed in Rajasthan and Haryana by making the right to contest elections a fundamental right.
Also in April, the National Commission of Scheduled Castes issued notifications to both state governments, asking them to respond to the exclusionary aspects of the amendments within 15 days.
While these steps are being taken, the people affected by these amendments continue to wait in limbo, twice humiliated – once by the state government and once by the Supreme Court – for reasons of systemic oppression and a profound failure of the state.