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Questions aplenty on Haryana panchayat poll law -Krishnadas Rajagopal
-The Hindu

Bench offers limited and unidimensional explanations to petitioners’ queries

The Supreme Court judgment upholding the new Haryana panchayat law, which limits the voter’s freedom to choose his own candidate in a participatory democracy, offers limited and unidimensional explanations to questions and issues raised by parties in court.

The judgment by a Bench led by Justice J. Chelameswar does not explain why it considers the reasons for disqualification in Section 175 of the Haryana Panchayati Raj (Amendment) Act 2015, which include the lack of minimum educational qualification, electricity bill arrears, agricultural loan arrears and absence of a functional toilet at home, reasonable.

In fact, the entire verdict hinges on the argument that these disqualifications were introduced by the Harayana Legislative Assembly in its “wisdom”.

The Hindu’s analysis of the records of the case shows that the questions posed, and issues raised, by the three women panchayat candidates, represented by advocate Kirti Singh and organisations such as the People’s Union for Civil Liberties through its counsel, Sanjay Parekh, range from the purely constitutional to the commonsensical.

Why do the same disqualifications not apply to the MLAs of the Haryana Assembly? Article 243-F (1)(a) mandates that the disqualifications for an MLA and a panchayat member should be the same under the Constitution and the Representation of the People Act, 1951.

Does the Haryana law not create an anomalous situation that a person facing disqualification in panchayat elections can contest the elections for MP and MLA?

Is it not true that though the State legislature has the power to make laws under Article 243(1)(b), these laws cannot be contrary to the constitutional provisions or against the very foundation of democracy?

The 73rd and 74th Constitutional Amendments introduced Panchayati Raj to focus on issues such as poverty, illiteracy, shelter, unemployment at the grassroots level. So should the representative at the panchayat level not be someone who is aware of these problems?

India is a signatory to the United Nations International Covenant on Civil and Political Rights. Is the Haryana law not contrary to Article 25 of the Covenant that persons, otherwise eligible to stand for election, should not be excluded by discriminatory requirements such as education, residence, descent or political affiliation?

Is the Haryana law not violative of the Supreme Court’s own judgment by Justice Krishna Iyer in Mohinder Singh Gill v. Chief Election Commissioner that the “little man’s right to rise to prime ministership or presidentship cannot be wished away”?

Was the Haryana law not violative of the Supreme Court judgment in Union of India v. Association for Democratic Reforms of 2002 which held that no law can restrict a voter’s right to decide for himself whether educational qualification or property of a person is relevant for the latter to be elected or re-elected as his representative?

On educational qualifications

The Haryana law mandates that matriculation is required for a general male candidate, middle pass for a general woman candidate and for Scheduled Caste (SC) male candidate and only Class 5 pass for a SC woman candidate. Man or woman, SC or general, the functions of a panchayat member are the same. So if a Class 5 pass is enough to discharge a member’s function, why has a higher qualification of middle pass and matriculation pass been imposed?

If politics is indeed the “last refuge of a scoundrel” as T.T. Krishnamachari said in the Constituent Assembly debates or if basic education helps a human being distinguish between good and bad, right and wrong, why do none of the povisions on elections of President (Article 58), Vice-President (Article 66(3)), Member of the Lok Sabha, the Rajya Sabha or Member of the Legislative Assembly (Articles 84, 102, 173 and 191), not have education as a qualification or disqualification?

Did the Supreme Court not observe in its 2004 judgment in People’s Union of Civil Liberties vs. Union of India that character, sense of devotion to duty and concern for the welfare of the people are not the monopoly of well-educated persons?

Article 21A has made education up to the age of 14 as a Fundamental Right. Is it not because of poverty and inaccessibility that families are not able to provide education to their children?

On a ‘functional’ toilet

A ‘functional’ toilet requires, as it is understood, a flush system and lots of water. There is no data produced by the State of Haryana that a pipeline is available to all the people in the State. Without pipeline, can a functional toilet facility be run?

On electricity bill arrears

The judgment found no “constitutional infirmity” in the Haryana government’s argument that the disqualification was introduced to help power generation and distribution companies collect their dues. How can a candidate who has paid electricity bill be more suitable than a person who has not paid the electricity bill?

Why did the law not take into consideration that a person may not be able to pay his bill on time due to poverty; or for the simple reason that the bill was not delivered by the discom on time; or the meter is faulty; or the possibility of wrong calculation of arrears or the person is bona fide unaware of his dues?

On loan defaulters

The judgment acknowledges the phenomenon of debt-ridden farmers committing suicide, but says the farmers in Haryana are “more prosperous.” The Haryana government justifies insolvency as a disqualification to help Primary Agricultural Cooperative Societies and the Agricultural Rural Development Banks/Primary Land Development Banks recover.

The provision concerned in the 2015 Act only uses the phrase “any arrears of any kind.” It is not an amount adjudicated by any quasi-judicial or court of law. In contrast, the Constitution provides that a person cannot contest as MP or MLA only if he is an “undischarged insolvent” — that is, he should be declared insolvent by a court of law. Is this not discriminatory?

Why did the court not question the Haryana law’s intention to use the Sarpanch as a “deterrent” against defaulters?

Did the judgment take into consideration the reports of the NCRB that a total number of 2,70,940 farmers committed suicide from 1995-2011?

Did the judgment take into consideration that as per the Arjun Sengupta Report of the National Commission on Enterprises in the Unorganised Sector (2007) the average monthly income of farmers per household from all sources is estimated at Rs. 2,150, while per capita income is as low as Rs.385, at all India level and the per day consumption of a member of a farmer’s family is about Rs.15 per day?