The Constitution of India is premised on the idea that the ability to discern right from wrong and good from bad is innate in every human being. Despite the fact that the nascent nation comprised a large number of illiterate and poor people living mostly in villages, India chose to be a democratic sovereign republic with a parliamentary form of democracy based on adult suffrage. It was not, and could not be doubted that illiterate Indians possessed the wisdom to decide upon and elect their representatives. Even then when Panchayat system was entrenched in the Constitution by the 73rd Amendment in 1992, the promise of universal adult suffrage was implicit.
The right to contest an election is a corollary to the right to vote -- two sides of a coin.
The Indian Supreme Court, on 10 December, 2015 -- World Human Rights Day, ironically -- rendered a decision in Rajbala vs. Haryana, and upheld the requirement introduced by a state legislature that in order to contest elections at village level, the candidate must have passed "matriculate examination". If such a candidate is a woman or from scheduled caste, the qualification is reduced to Class 8, and if such candidate is a woman from the scheduled caste category contesting for village headwoman, then she is not eligible unless she has passed Class 5. The further qualifications that have been upheld by the Supreme Court are (a) the candidate has not failed to pay any arrears due to any agricultural cooperative bank or society; (b) The candidate has not failed to pay arrears of electricity bills; and, (c) The candidate has a functional toilet at his place of residence.
The right to contest an election is a corollary to the right to vote -- two sides of a coin. A system of election can be called "fair" if and only if those who vote are equally entitled and free to contest, should they wish to. The right to vote has been acknowledged as an expression of the right to freedom of speech, and therefore the unqualified ability to contest an election is also a facet of freedom of speech and expression. The right to contest election can only be restricted to the extent of maintaining the fairness of the election - such as keeping criminals out. Since a democratic form of governance is a basic feature of the Constitution, it ought to follow that right to vote or contest election, even if provided by statutes is really in the realm of essential Constitutional rights. Absence or truncation of such rights would make the Constitution itself unworkable.
The Supreme Court has wiped out decades of jurisprudence built by itself, brick by brick, to protect its people against unbridled state power and arbitrary action.
Unfortunately, while acknowledging that both the right to vote and the right to contest elections are constitutional rights and not statutory rights, simplicitor, the Court does not examine the implications of its findings, except to observe that every person who is entitled to be a voter by virtue of the scheme of the Constitution is not automatically entitled to contest in any of the elections to constitutional offices. Being a higher right, it is guaranteed stronger protection, but this analysis is found lacking in the judgment. With this judicial approval, other states are following the suit.
The Supreme Court has wiped out decades of jurisprudence built by itself, brick by brick, to protect its people against unbridled state power and arbitrary action. In a country, where inflated (and consequentially unpaid) electricity bills are the norm, and drought is pushing the rural population into indebtedness, the introduction and upholding of financial wellness as a condition to contest elections is, on the face of it, mischievous. The system of election, ideally, has to be such that a person contesting could do so free of cost.
The Supreme Court, in its majestic wisdom, has assumed for instance that:
"It is only education which gives a human being the power to discriminate between right and wrong, good and bad."
The eligibility condition of education, toilets and not being in arrears, are only manifestation of the will of the elite that dominate the law-making body, and by upholding it the Supreme Court has done greatest disservice to the teeming millions whom it is obliged to protect. While Gandhi has been quoted to support the reasoning, it is highly unlikely that the Father of the Nation would have supported a view which disenfranchises the poorest of the poor from participating in the democracy.
The Supreme Court has done greatest disservice to the teeming millions whom it is obliged to protect.
The Court has further said that:
"It is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned to Panchayats."
The prescribed educational qualification "necessary" for carrying out "the functions" cannot vary if the candidate is a man, a woman or a person from the scheduled caste category. It is unfortunate that the Supreme Court could not see through the systematic disenfranchisement of large sections of people. Rather it itself notes that 68% of the scheduled caste women and 41% of the scheduled caste men would be ineligible to contest Panchayat elections by virtue of the said law, only to brush aside these alarming figures to hold that in constitutional analysis, the numerical dimension of such classes, should make no difference. It is ironic that the same Supreme Court while deciding the constitutionality of anti-sodomy laws in the case of Koushal had held that:
"...a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders... and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution."
The underlying bases of the Supreme Court's judgment in Rajbala , dismissing the challenge to an elitist, disenfranchising and anti-poor law is that:
(1) No enactment can be struck down by just saying that it is arbitrary.
(2) That doing so would amount to making value judgments and
(3) That such value judgments are the domain of the legislature and not for courts to make.
The above reasoning is at best hypocritical since, as Thomas Nagel points out in his paper "Ronald Dworkin: The Moral Quest", that:
"In fact, judges have to make value judgments all the time, not only in major constitutional cases, but in cases of negligence, employment discrimination, defamation, copyright infringement, and so on."
In a system of democracy, even a homeless person should not only be eligible to vote but should also be eligible to contest in an election.
The Hon'ble Supreme Court of India in the past has developed a rich jurisprudence around making value judgments by imposing positive duties on the State and spelling out rights which do not find explicit mention in the Constitution, like the right to food, or the right to night shelter, right to emergency medical health care and a host of other socio-economic rights. These are all value judgments made by the same Supreme Court. To say that rendering justice and deciding what is right and wrong does not involve value judgments is a view which suffers from a serious fallacy and is at best a lame abdication of its judicial responsibility.
By making the right of a person to contest elections to local bodies contingent upon not being in arrears, or having a toilet in his residence or having a prescribed educational qualification, relegates the right itself to the position of privilege depending upon a person's financial and social status. In a system of democracy, even a homeless person should not only be eligible to vote but should also be eligible to contest in an election.
The Supreme Court's judgment is divorced from the ground realities in India, where a large section of the population would fail to fulfil the criteria laid down by the law, thus depriving them of their valuable constitutional right to contest elections and thereby destroying any hope for a deliberative democracy.
The authors are advocates practising before the Supreme Court of India.
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