The Case of the Rajasthan Panchayats and the Right to Contest

Special Series: Perspectives from Undergraduate Law Students
B.A/LL.B. (Hons) Student Contribution

–Vasujith Ram, National University of Juridical Sciences, Kolkata; Editor of the Journal of Indian Law and Society

The Ordinances No. 1 & 2 of 2014 passed by the Governor of Rajasthan have received a barrage of criticism ever since their passage and notification on December 20, 2014. The Ordinances amend the Rajasthan Panchayati Raj Act, 1994 (A statute which operationalizes institutions of local self government in Rajasthan) to include additional disqualifications for contesting for the position of a ‘Panch’ or a member of the local government.

These additional disqualifications are: 1) the potential candidate “does not have a functional sanitary toilet in the house and any of his family members defecate in the open”; or 2) the potential candidate has not passed Class V (in case of Sarpanch of a Scheduled Area) or Class VIII (in case of Sarpanch or other areas) or Class X (in case of member of Zila Parishad or Panchayat Samiti).

Only 34.9% of the households in Rajasthan have any form of toilets. By comparison, according to the data from the latest Census in 2011, the literacy rate among rural women in Rajasthan stands at 45.8%, though it is much worse for Scheduled Caste women, with the rate standing at roughly 34.38%.

The Ordinances have been opposed in public discourse primarily on grounds of public policy. In this post, however, I would like to highlight a core constitutional issue arising under the Ordinances: the legal position of the right to contest.

Most of the cases follow an earlier precedent set in NP Ponnuswami v Returning Officer ((1952) 1 SCR 218) and Jyoti Basu v Debi Ghoshal ((1982) 3 SCR 318). In these cases, the Supreme Court held that the right to elect (i.e., the right to vote) and the right to be elected (i.e., the right to contest) are both “pure and simple” statutory rights (and not fundamental or common law rights). The Court moreover held that “concepts familiar to common law and equity must remain strangers to Election Law”.

The position with respect to the right to vote has seen a marked change with the post-2000 decisions in Union of India v ADR ((2002) 5 SCC 294) and PUCL v Union of India ((2013) 10 SCC 1), where the Court held the act of voting to be a form of freedom of expression (a fundamental right under Article 19(1)(a)). However, the position on the right to contest remains unchanged – it is still to be only a statutory right.

Will the statute creating the right to contest itself be subject to a fundamental rights challenge?

In Jumuna Prasad Mukhariya v Lachhi Ram ((1955) 1 SCR 608), a five-judge bench held: “The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statue. The Fundamental Rights Chapter has no bearing on a right like this created by statute”. In Javed v State of Haryana ((2003) 8 SCC 369), the Court rejected a challenge to a statutory provision disqualifying potential Panchayat election candidates with more than two children. The Court first rejected contention based on Article 14 (equality before law) by reasoning that it satisfies the tests of intelligible differentia and rational nexus to the Statute’s object. However, with respect to the contentions based on Article 21 (right to life) and Article 25 (freedom of religion), the Court endorsed the decision in Lachhi Ram. The logic was that a person is otherwise free to exercise his or her fundamental rights, but if he or she wants to contest elections, the rules must be followed. Similarly a five-judge bench in Sakhawat Ali v State of Orissa ((1955) 1 SCR 1004) considered a statute disqualifying legal practitioners who had against against the Municipality and once again admitted the Article 14 challenge but rejected it on the basis of constitutional tests. The challenge on the basis of Article 19(1)(g) (freedom of trade & occupation) was treated as inapplicable on the basis on the above-mentioned logic.

In other words, the only protection that is available against statutes creating the right to contest is the test for reasonable classification and rational nexus. I must reiterate that there are two aspects here: one, the substantive fundamental/constitutional right to contest[1], and two, the consistency of the statute creating the right to contest with other fundamental rights. Both stand on a dubious footing in India. The former is absent and the latter is susceptible only to a check of reasonableness. This trend is quite concerning and has the potential to undermine free and fair elections and democracy, both declared to be part of the “basic structure” of the Indian Constitution.

In Dhirendra Pandua v State of Orissa ((2008) 17 SCC 311), where a statutory provision barring leprosy or tuberculosis patients from contesting was challenged, only a “faint” challenge was made on grounds of Article 14 violation – and there was no mention of Article 21 (right to life with dignity) at all.

The Ordinances recently passed by the Governor of Rajasthan were challenged in Aruna Roy v State of Rajasthan (WP (C) D No. 1 of 2015). However, the Court disposed of the petition (on procedural grounds), granting liberty to the petitioners to approach the High Court first.

Should the case ultimately go up to the Supreme Court, it will be an opportune moment for the Court to change its stand. It is likely that arguments on the basis of Article 21A (state’s obligation to provide free and compulsory education) and Article 21 (right to live with dignity) will be made. While the contention under Article 14 may go either way (itself a topic for another post), venturing into challenges under other fundamental rights will go a long way in protecting the Indian Constitution’s preambular aspiration of democracy and political justice.

Suggested Citation: Vasujith Ram, The Case of the Rajasthan Panchayats and the Right to Contest, Int’l J. Const. L. Blog, Jan. 7, 2015, at: http://www.iconnectblog.com/2015/01/the-case-of-the-rajasthan-panchayats-and-the-right-to-contest

[1] Such as that provided in both the UDHR and ICCPR: every citizen shall have the right and opportunity to be elected without unreasonable restrictions or distinctions. Here there is scope for the candidate to ask for equal opportunity in the form of state funding of elections, free copies of election rolls, airtime for advertisements on state run channels, etc.