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How Haryana And The Supreme Court Struck Against The Foundation Of Democratic Polity

11/12/2015 10:18 AM IST | Updated 15/07/2016 8:25 AM IST
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Indian women voters cover their faces as they stand in a queue to cast their votes during a re-polling of the parliamentary elections in Rehna village, in the northern Indian state of Haryana, Thursday, May 15, 2014. The Election Commission had ordered re-polling in some polling stations in the state following complaints. Official election results are expected on Friday, but exit polls by at least six major Indian TV stations show the Hindu nationalist Bharatiya Janata Party likely to win enough seats to form a coalition government. Hindi on the wall reads, "Save the girl child, save the nation."(AP Photo/Altaf Qadri)

In its judgment upholding the Haryana Panchayati Raj (Amendment) Act, 2015, the Indian Supreme Court on Thursday argued that "It is only education which gives a human being the power to discriminate between right and wrong, good and bad". With these words, the Court declined to strike down educational qualifications for candidates in Panchayat elections*.

Incidentally, this is not the first time the Indian judiciary has commented on the capacities of uneducated persons for self-determination. Take, for instance, Justice Katju's (then judge at the Allahabad High Court) insistence in 1997 that: "An uneducated man is only an animal.. an educated men has a totally different approach to things as compared to an uneducated person. The former can think out ways of changing society. On the other hand, an ignorant person is usually a fatalist, he suffers from lack of confidence and inferiority complex... his rebellion or protest against injustice even when it occurs, is not in the creative field but in the field of crime or some other anti-social activity, because he has no creative ability to either improve his own condition or change society".

In 2002, Justice Sethi had defended laws on sedition in India on the grounds that "The legislature appears to have kept in mind to bring the law on the subject into line with modern trends of thinking in other countries without ignoring the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled".

To return to its comments on Thursday, it is perfectly possible to endorse the judges' statement and yet reject the Haryana Assembly's legislation. One could do this by not equating education with formal instruction. This is the view that several Indian leaders adopted over debates on the franchise with the colonial government.

The view that education is necessary for the exercise of democratic citizenship played an important role in the colonial government's postponement of self-government in British India

Neither this legislation, nor the justification offered for it by the Haryana Government is novel to India. The view that education is necessary for the exercise of democratic citizenship played an important role in the colonial government's postponement of self-government in British India. The Southborough Report, drafted to offer recommendations on the franchise in the aftermath of the Government of India Act 1919, had suggested that "education does help in the formation of an electorate which will be potentially more capable of understanding issues submitted to its judgment and hence prima facie better equipped to exercise political power". Similarly, in offering recommendations for the Government of India Act 1935, the Lothian Commission held that, in addition to the size of its population, illiteracy constituted one of "the two special problems which confront India in setting on foot a system of responsible government".

Indian Political leaders engaging with the British were sensitive to the strategic appeal to education as a justification for disenfranchisement. They argued that education ought to be understood as a broader concept of which formal instruction was a small, and by no means necessary element. Take, for instance, NM Joshi's statement at the Roundtable Conference: "Education does not mean literacy only; a man who carries on agriculture efficiently and earns his own living and maintains a staff is not uneducated simply because he cannot write his name and has to make a mark or sign". Gandhi had famously argued along similar lines: "Literacy is not the end of education nor even the beginning". The suggestion that education is necessary for democracy, therefore, did not lead to an emphasis on acquiring formal qualifications.

In addition to drawing upon a notion of education as the sum of one's lived experiences, Indian political leaders also suggested that democratic participation itself was a form of education. This argument goes back to John Stuart Mill's suggestion that part of the defence for democracy lies in its ability to stimulate engagement between citizens, and help form opinions on complex matters in a collaborative effort with others. Various leaders at the Roundtable Conference, and in their submissions to the Joint Committee for the Government of India Act 1935, argued that Indians must be allowed to participate actively in democratic affairs. As one leader put it, "it is only in that way that political sense will be created amongst the people". This suggestion is not entirely fanciful. James Fishkin, political scientist at Stanford University has shown that citizens' participation in small groups, convened for the purpose of deliberation and voting on political issues, leads to an improvement in their knowledge of the relevant substantive and procedural matters.

Curiously, the Court's judgment describes the clear disparate impact this legislation shall have upon disadvantaged groups like women and scheduled castes. It acknowledges that 68% of the scheduled caste women and 41% of the scheduled caste men would be ineligible to contest elections under the new amendments. Further, it also states that 50% of all women would be rendered similarly ineligible. It was concerns like these that led Ambedkar to express wariness against the equation of political intelligence with education. "Statistics will show that the intelligentsia and the Brahmin caste are exchangeable terms. The disposition of the intelligentsia is a Brahmin disposition. Its outlook is a Brahmin outlook", he argued. Similarly, representatives of women, and organisations like the Women's Indian Association, urged the colonial government that educational qualifications were poised to unevenly disenfranchise them when they were already politically disadvantaged.

Even if we did not adopt the above approach of educational qualifications as a calculated strategy of exclusion, there are three arguments against adopting them in the light of disparate impact.

One way of assessing disparate impact is to suggest that it is the very point of such qualifications rather than a by-product of measures intended to meet other valuable goals. The history of the United States, for instance, shows that various states adopted literacy tests in order to disenfranchise groups. For instance, in the 1850s, states began adopting such tests in order to block voting rights for Irish immigrants who had arrived in the country following Ireland's Great Famine. In the aftermath of the American Civil War, several Southern states adopted literacy qualifications to disenfranchise black persons. This allowed them to circumvent civil rights legislation that otherwise prohibited discrimination on the basis of race.

But even if we did not adopt the above approach of educational qualifications as a calculated strategy of exclusion, there are three arguments against adopting them in the light of disparate impact. The first relevant argument here is that it is unfair to deny political office to persons who were let down by the state in the provision of education. Faced with a similar question in 2008, the Pakistan Supreme Court articulated this with great clarity:

"The State was obliged, inter alia, to promote with special care the education and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. To achieve these objectives no time limit was fixed whereas the condition of being a graduate was imposed instantly... the inaction of the State in not providing equal opportunities of education in the country does not entail any penal consequences. Nevertheless, the inaction of citizens in not acquiring educational qualification has been made punishable instantly and the non- graduates deprived of contesting election. Indeed, this is an anomalous situation"

Uneven distributions of education reflect a state of injustice where persons were structurally precluded from obtaining what is stipulated as the basis for political power. The absence of equal opportunity for education therefore translates into unequal opportunity for political power.

The absence of equal opportunity for education therefore translates into unequal opportunity for political power.

The second argument against educational qualifications in the face of disparate impact appeals to the quality of decisions that it produces. Educational qualifications are justified on the basis of their epistemic benefit. By epistemic benefit, I mean the superiority in the quality of political decisions that such qualifications are purported to bring about. But educational qualifications instead lead to epistemic distortions rather than better pooling of knowledge. This is because education is distributed unevenly across different groups, which means that those favoured by educational qualifications are likely to belong to groups that do not have access to the interests and problems of the disadvantaged.

The final argument against such qualifications appeals to the problematic equation of education with formal qualifications, and the latter with ethically sensitive decisions. Even if formal qualifications demonstrate better political expertise, they do not necessarily guarantee that it will be used for the right ends. They might instead aim to maximize their own interests rather than adopting decisions that are in everyone's interest even if they are better aware of ways in which the interests of all could be protected.

Thus, Ambedkar argued that: "It must also be recognized that while the intelligentsia is a very necessary and a very important part of Indian society, it is drawn from its upper strata and, although it speaks in the name of the country and leads the political movement, it has not shed the narrow particularism of the class from which it is drawn". This argument acquires particular sting once we look towards the structural injustice that is reflected by uneven distribution of education across demographic groups. Educational qualifications are premised on an already weak assumption that those awarded political power shall exercise it in good faith to secure the interests of the disadvantaged. The emphasis on structural injustice weakens this assumption even further by pointing to the role of the privileged group in supporting, or failing to dismantle factors that preclude disadvantaged groups from accessing education.

Before concluding, I wish to emphasize an aspect in this debate that has escaped judicial attention: the rights of the voter. In various countries around the world, the conditions for candidacy of political office remain the same as those for voting. Even if we were to inject doubt about the capacities of the lesser educated to govern, the key idea remains that democracy must place faith in the ability of citizens to choose their representatives. This foundational idea cannot be altered by the current political dispensation since it is a constitutive rule of the game: the one rule from which all subsequent ones derive their legitimacy. The act in Haryana and the Supreme Court's refusal to overturn it might come across as damaging and yet tolerable breaches of the political framework. They are, in fact, a strike against the foundational norm of any democratic polity.

*Although the Court also upheld other conditions like ensuring that candidates have toilets, are not insolvent, or have criminal convictions--all of which deserve further scrutiny--I have only focused here on its acceptance of educational qualifications.

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