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Flushing Democracy Down the Toilet: Rajasthan's New Voter Laws

14/11/2015 12:45 AM IST | Updated 15/07/2016 8:25 AM IST
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India revolutionized democracy when it introduced the 73rd and 74th amendment in 1994 calling for 1/3rd seat reservation for women in the Panchayat Raj. Twenty years later, these gains are being rolled back by new qualifications for running for office: a bathroom and an education. What is the correlation between a bathroom and running for office?

For the Haryana and Rajasthan government in Northern India, there is a connection between a functioning toilet and effective leadership. In amendments to the Panchayati Raj Act, new criteria were added to contest a panchayat election. These new requirements range from education criteria to a running toilet to no outstanding debts on cooperative loans.

This year is the 100 year anniversary of Guinn v. United States, a landmark US case that abolished literacy tests in federal elections, and in three years, it will be the 100 year anniversary of the election of the first woman to be elected to the British House of Commons. Now, despite a century of progress, democracy is being eroded by myopic voter laws that undermine the foundations of democracy itself.

The Haryana state's development and panchayat minister explained the decision as a method to ensure better candidates:

"The idea behind making these changes, especially the education criteria, was that panchayats deal with a lot of financial issues. There are heavy money transactions and usually when something goes wrong, members say their thumb impressions were taken and they are unaware of what actually transpired. Panchayat leaders do not even have enough money to hire trustworthy staff who can help them. This is why we brought in the minimum educational qualification for panchayat level elections," Om Prakash Dhankar said.

The toilet requirements were added as a part of the Swachh Bharat Abhiyan national campaign to improve sanitation across the nation.

While the move by the local governments might have had good intent, the new decision has been challenged by one of India's top human rights lawyers, Indira Jaising. From the Bhopal tragedy, to the famous Mary Roy case, Jaising has spearheaded human rights in India for close to 40 years.

In the pending case before the Indian Supreme Court, Jaising contends that the Rajasthan state legislature lacks the power to impose new qualifications for contesting an election - indeed Part IX of the Constitution of India allows for specific disqualifications, but does not allow for specific qualifications. This distinction is an important part of Jaising's case, as she argues the education criteria is a qualification, not a disqualification.

However, on a more fundamental level, Jaising sees the new measure as a violation of our underlying human rights. The right to equality under the law is enshrined in Article 14 of the Indian Constitution, and as Jaising explains in her Writ Petition to the Supreme Court of India, the "requirement of having education to contest for such an election has no rational nexus with the object of immediate political empowerment, rather it goes against it, and hence, the classification is bad in law and violative of Article 14 of the Constitution."

Practically speaking, many poor villages do not even have running water, let alone functioning toilets - it's a requirement that leapfrogs the infrastructure present and establishes a clear inequality in India's corpus of suffrage law.

"How can you talk of ownership of a toilet when you don't have a home? There are large numbers of homeless in our country," explains Jaising. "Moreover, people have the right to decide how to spend their money - there may be more pressing needs for a family even if they do have a home. Some have with a thatched roof, others have makeshift homes which collapse with the onslaught of nature: how can they own a toilet? Anyway, why is a person who owns a toilet more capable of representing the community then one who does not have one?"

Some have claimed that the education requirements constitute a subtle caste war - a reaction to a number of dalit women being elected as panchayat heads. The Dalit caste was historically considered the "untouchables." According to the 2011 census, only 20 percent of dalit women meet the education requirements of the new laws, effectively forcing dalit women out of political participation. This marginalization is especially dangerous in the wake of the increasing number of crimes against dalit women across India: the National Crime Records Bureau reveals a 19.4 percent increase in crimes against dalit women in 2014 as compared to the previous year.

The education criteria also ignores the basic fact that many Indians do not have access to formal education. According to Jaising, 40 percent of Indians do not have the opportunity to get a formal education - instead many find innovative and entrepreneurial methods of becoming self-educated.

Jaising shares a potent anecdote of the kind of people the new law undermines: "My petitioner in the Rajasthan High Court, Noroti, did not have a formal education. Yet she was computer literate, was a trainer for others, and has even been to the UN representing the cause of women. She was twice elected to the panchayat but now cannot contest since she does not have a formal education."

Ultimately, like many other voter suppression laws in the past, the new statues disproportionately affect the segment of India's population that need representation the most.

"What the new law has done is disqualified women and men in older age groups. Typically women and men in their 50s do not tend to have an educational qualifications, whereas the young are move likely to have such a qualification," said Jaising.

"The qualification also disproportionately impacts women and they tend not to have formal qualifications, but who under panchayat Raj have been very effective leaders and role models."

Most importantly, Jaising is challenging the antiquated franchise concepts in India's legal system. According to India's case law, "the right to contest an election is not a fundament right nor is the right to vote a fundamental right." In the 1952 case, N.P. Ponnuswami vs Returning Officer the Indian Supreme Court determined that "The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it." As a part of this case, Jaising is aiming to break down this "unsustainable" position, and establish new franchise rights for all Indian citizens. So far, there's been progress: the Supreme Court temporarily reversed the laws in Haryana, but nothing is set in stone. It's a bold job - but perhaps there's no one better suited to do it.

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