Haryana’s move to make educational qualification a must
The BJP government’s move to introduce reforms such as making educational qualification mandatory for contesting elections to panchayati raj institutions (PRIs) in Haryana, though being criticised by opposition parties, appears to be on a sound legal footing, at least for now, and draws strength from Rajasthan experience.chandigarh Updated: Aug 13, 2015 10:54 IST
The BJP government’s move to introduce reforms such as making educational qualification mandatory for contesting elections to panchayati raj institutions (PRIs) in Haryana, though being criticised by opposition parties, appears to be on a sound legal footing, at least for now, and draws strength from Rajasthan experience.
The proposed amendments-making educational qualification mandatory for contesting elections to PRIs; debarring persons against whom charges have been framed by court for grave criminal offences punishable by not less than 10 years imprisonment from contesting, debarring those who did not clear their outstanding electricity bills and defaulted on cooperative loans- means debarring certain classes of persons from contesting.
The legal sustainability of such provisions to be inserted by way of an amendment in Haryana Panchayati Raj Act was examined by the top two law officers of the state - the legal remembrancer (LR) and the advocate general (AG) who said the proposed amendments were legally permissible and can be carried out. The opinion of the AG was taken as the amendments were likely to be challenged in a court.
The LR in his advice said that Article 243-F of the Constitution provided for disqualification for membership mentioning that a person shall be disqualified by or under any law made by the state legislature.
“Thus, the state legislature in its own wisdom may make a law laying down the disqualification for the persons to be chosen as or being a member of a panchayat. It is also pointed out that in Haryana Panchayati Raj Act, 1994, section 175 provides for the disqualification for being a sarpanch or a panch of a gram panchayat or a member of panchayat samit or zila parishad. It is pertinent to mention that section 175 (q) provided that a person is disqualified from being sarpanch or panch or member if he has more than two living children. This provision was challenged before the Punjab and Haryana high court and thereafter before Supreme Court. The apex court while holding the said provisions as constitutional held that the challenge to the constitutional validity of section 175(1)(q) and section 177(1) fails on all counts and both the provisions were held intra-vires (within the legal power or authority) of the constitution, salutary and in public interest," the advice reads.
The three-member SC bench of Justices RC Lahoti, Ashok Bhan and Arun Kumar, in Javed and others v/s state of Haryana held that the disqualifications provided in 175 (1)(q) on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability and rather it is a disqualification conceptually devised in national interest.
"The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic justice, the advancement of nation as a whole and the philosophy of distributive justice - economic, social and political - cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights…," said a three member apex court bench of Justices RC Lahoti, Ashok Bhan and Arun Kumar.
Rajasthan did it first
The BJP government in Rajasthan was the first ones to carry out similar amendments by way of an ordinance in December 2014 which were challenged in the Supreme Court and later in Rajasthan high court (HC). While the Supreme court disposed off the petitions as withdrawn, granting liberty to petitioners to approach the HC, the high court did not pass any interim order and also rejected the application seeking stay on the controversial ordinance.
High court seeks data
However, despite refusing to stay the Rajasthan ordinance, the HC bench of acting chief justice, Sunil Ambwani and Prakash Gupta left the matter delicately poised till the next hearing.
Asking the petitioners and state government to prepare and collect data and material on the subject, the bench in its January 15 order said: “We do not find the state government has placed before us any empirical data which may suggest that there are sufficient number of qualified persons available in rural areas which will not amount to exclusion of large number of people in villages especially women to be represented to lead the PRIs. We are also satisfied that even if such empirical data was collected, the exclusion of those who did not have an opportunity of formal education could not have been denied participation in the democratic institutions and for this reason, no educational qualifications have been prescribed for elections in any of the institutions including PRIs or in the legislative assembly, or Parliament. One such attempt failed in the Maharashtra. In fact, prescription of educational qualification for inclusion for contesting elections in any democratic institution, unless there is strong nexus with the object to be achieved is an antithesis to the democratic governance of the institution. It is a negation of the very object of purpose of enacting the Constitution described in its preamble. The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that they does not have educational qualification for such inclusion.”