Imagine that the NDA were to amend the Representative of People’s Act through the ordinance route days before the next general elections. Would the polity countenance this usurpation of the legislature’s domain even though the BJP commands a ‘brute majority’ and could technically get the amendments passed? This is precisely what has happened in Rajasthan.
Days before the panchayat polls, the state promulgated an ordinance to mandate that a person wanting to contest them must have at least passed Class 8 or Class 10. It is estimated that 80% of rural Rajasthan will be disqualified from contesting. However, another equally important aspect of this ordinance is the fact that executive power was used to amend an electoral law bypassing all Opposition parties.
The Constitution states that “a person shall be disqualified for being chosen as, and for being, a member of a panchayat if he is so disqualified by or under any law made by the legislature of the state” (note, legislature of the state and not the state executive). This is not a mere technicality. The legislature includes Opposition parties whose opinion must be taken into consideration while making laws. The structure of the legislature — deliberative process, question hour, standing and select committees — exists to ensure that the voice of the Opposition is counted.
In a multi-party democracy, electoral laws ensure a level playing field. This is why the Election Commission has held that electoral reform must be “consensual”. However, in Rajasthan, all Opposition parties, representing 55% of the vote, oppose the ordinance. The ordinance route is an interim measure and must be ratified by the legislature, implying scope for both rejection and amendment. However in Rajasthan, the legislature will have no scope for either since the polls would have concluded and would necessarily have to rubberstamp what is in effect an executive decision. The fact that the BJP has majority in Rajasthan is no guarantee that it would have managed to pass these amendments, given its own legislators scuttled its amendments to the land Bill. Moreover, 23 of its own legislators do not meet the standards laid down by this ordinance and would likely have lobbied against such a Bill.
It is thus worth asking what could be a possible motive of the government in bringing about this ordinance given the opposition across party lines, including within sections of the BJP. One theory is that this is an attempt by the BJP to destabilise the Congress power base in rural Rajasthan. The Congress swept the panchayat polls in 2010, winning 25 out of 33 zila pramukhs and 159 out of 248 samiti pradhans. A sure way to destabilise the above set-up is to mandate eligibility criteria to disqualify a majority of these older political leaders. Which is exactly what the ordinance has done: More than 70% of elected panchayat samiti members and 77% Scheduled Caste panchayat samiti representatives are now debarred from contesting. Additionally, the ordinance will exclude the most marginalised sections from contesting since they are unlikely to have the educational qualifications. Thus, another theory doing the rounds is that this is an attempt by the BJP to facilitate an elite capture of the government, more in line with its ‘reforms’. The state government has used its executive power to amend an electoral law just before elections for partisan considerations. Can such a blatantly unconstitutional use of executive power also be legal?
Ruchi Gupta works with the AICC
The views expressed by the author are personal