Keeping them out

Surprisingly, the Supreme Court has upheld the validity of Haryana’s initiative of compulsory “educational qualification” to contest the elections of local bodies. Whatever may be the rationale of the Court, extraneous conditions and qualifications like ‘compulsory education’, ‘two-child norm’, ‘functional sanitary toilet’, ‘payment of electricity bills and other agricultural loan dues’ are unpersuasive, untimely, exclusionary, patriarchal and oligarchic. They are not only against the socio-economic and demographic conditions of the state but also do not pass the test of constitutionality.
The habit of excluding the marginalised sections from the electoral process in the name of efficiency is not new but an outcome of a colonial hangover. During the British regime in India, not only were voting rights granted on elite qualifications but also the electoral contests were limited to the educated and propertied class. It was achieved through the Minto-Morley Reforms, 1909 and the Montague Chelmsford Reforms, 1919 which widened the participation of people in the local self-government.
The Southborough Committee, constituted by the Government of India Act 1919, argued that educated electorate are “potentially more capable of understanding issues submitted to its judgment and hence prima facie better equipped to exercise political power”. The Lothian Committee on franchise in 1932 also reached a similar conclusion. Our Constituent Assembly adopted the principle of “universal adult franchise” keeping in view that a majority of the population was illiterate in India. The attainment of “universal adult franchise” was the outcome of a long struggle and thus incorporated in our Constitution as Article 326.
The present “disqualification” legislations of either Rajasthan or Haryana, by their very nature, are arbitrary and against the principles of “constitutionalism”. The legislations are not in consonance with the provisions of Fundamental Rights like Article 14, 15 and 19(1)(a) because of denial of political rights to a majority of the people to contest the Panchayat/Municipal elections. The right or freedom to vote under Article 19(1)(a) and the idea of “universal adult suffrage” conceptually imply the right and freedom to contest elections with an idea of “universal adult right to contest”. With the same logic, states should not interfere intentionally to disrupt the democratic process through erroneous legislation and extraneous considerations like educational qualification.
The ultimate object of the 73rdAmendment to ensure the sufficient “representation of weaker sections like Scheduled Castes, Scheduled Tribes and women” in local governance is also compromised. All norms of “social justice” appear to be suspended as the majority of the marginalised sections are denied of the equality of opportunity to contest the local elections.
Despite the significant strides in education, majority of the rural electorates belonging to Scheduled Castes, Scheduled Tribes and women are uneducated. The 2011 census data suggests that in rural Haryana, 83 per cent of Scheduled Caste women, 72 per cent of general category women, 71 per cent of Scheduled Caste men and 56 per cent of general category men in Haryana will be rendered ineligible on the education criterion alone. Almost 67 per cent of women in urban Haryana would also be disqualified. The regional disparities in term of literacy across Haryana are extreme and will affect the chances of the marginalised to contest local elections adversely.
Surprisingly, the marginalised communities are further penalised for the crime they did not commit voluntarily. Pervasive illiteracy is the result of policy failure of the government. The so called progressive legislations would have served the purpose if government would have fulfilled its constitutional obligation to provide all children free and compulsory education guaranteed under Article 21A and 45. It was only after 2002 that education was treated as a fundamental right and thus the Right to Education Act came in 2009. However, given the poor educational facilities, poor infrastructure, poverty, absence of schools in India, a law depriving the people from the right to contest elections on educational ground is not justified.
Admittedly, as per Article 243-F (1)(b) of the Constitution, state legislatures are authorised to prescribe qualifications or disqualifications to become members of a Panchayat. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952) and Jagan Nath v. Jaswant Singh (1954), the Supreme Court held in Jyoti Basu v. Debi Ghosal (1982): “A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.”
While arguing on a similar line and invoking the object-nexus principle, the Supreme Court in Javed v. State of Haryana (2003), popularly known as the two-child norm qualification case opined: “There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.” In this case, Supreme Court also argued that the “legislative wisdom” of the “two-child norm” classification is linked with the object of “popularizing the family welfare/family planning programme” and thus does not “suffer from any arbitrariness”. However, this object-nexus test of the Supreme Court was based on dubious logic and may be questioned for both its reasoning and consequences.
In the case of educational qualifications, the rational object of promoting literacy and efficiency should not be achieved through “disenfranchisement” and undemocratic denial of right to contest in elections and participate in the electoral process of the local governance.
In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh (2001), the Supreme Court observed: “Clean, efficient and benevolent administrations are the essential features of good governance which in turn depends upon persons of competency and good character”.
Similarly, in People’s Union for Civil Liberties (PUCL) & Another V. Union of India and Another (the famous NOTA case, 2013), the Supreme Court emphasised that “for democracy to survive, it is fundamental that the best available man should be chosen as the people’s representative for proper governance of the country and the same can be at best be achieved through persons of high moral and ethical values who win the elections on a positive vote.” Given these judicial pronouncements, it would be wrong to argue that only an educated representative will be effective and efficient, ethical and moral.
In Union of India v. Association for Democratic Reforms (2002), the Court held: “In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative.”
In the best spirit of this judgment, government should allow the voters to exercise their right to elect or reject the candidates having education or no education. Let us not create a contest between individuals having formal education and individuals having experience but strive for both. The focus should be more on the representative who should have practical and vocational training to understand the problems of the people and not only on creating a utopian model of Plato’s Ideal State governed by the wisest Philosopher King.
The law prohibiting the uneducated from contesting the election will deepen corruption because of the strong possibilities of the rise of an education mafia that may engage in the business of providing certificates, mark sheets and degrees through unfair means. If we are interested in incentivising education in local governance then a model political culture has to be created by political parties who should give tickets to educated individuals of their own free will. Laws should be made to maximise the participation of the marginalised in the electoral process of the country but not to deprive them from the power-structures of society.