The Haryana Panchayati Raj Judgment Is Not Backed By The Constitution

14 December 2015
The Supreme Court judgment on the amendments to the 1994 Haryana Panchayati Raj Act disproportionately affects its most marginalised and most vulnerable citizens.
Manoj Dhaka / Hindustan Times / Getty Images
The Supreme Court judgment on the amendments to the 1994 Haryana Panchayati Raj Act disproportionately affects its most marginalised and most vulnerable citizens.
Manoj Dhaka / Hindustan Times / Getty Images

On 10 December 2015, when the world was marking Human Rights Day, the Supreme Court of India delivered its judgment in the case of Rajbala vs the State of Haryana. The court was ruling on the validity of amendments to the Haryana Panchayati Raj Act of 1994, introduced earlier this year by the state government. The amendments disqualify those who lack formal education, have no functioning toilet in their home and are in debt, from contesting Panchayat elections. However, the apex court upheld the amendments, delivering a blow to several principles enshrined in the Constitution and disenfranchising a significant part of the population of the state.

There are many grounds on which this judgment can be criticised. For one, it ignores that the right to vote cannot be separated from the right to contest elections and that if the legislature indeed makes a law restricting or regulating not how the electoral process ought to be carried out but who is entitled to participate in it, then the standard of scrutiny should be higher.

For another, the court remains blind to the socio-economic realities of the people, and to the questions of access and opportunity to education and sanitation and rural indebtedness. The decision, which debars at least two-thirds of electorate from contesting panchayat elections by imposing minimum educational criteria, disproportionately affects its most marginalised and most vulnerable citizens. The court also leaves out the fact that historically, the privilege of education has belonged only to the upper caste, and rarely to women, Dalits and other marginalised groups. The Indian Supreme Court, which already has a poor history of understanding the contours of substantive equality especially for women and the most marginalised, never acknowledges that discrimination is not only in words, but also in effect. The “last refuge of the oppressed and the bewildered” condescendingly states that “if people still do not have a toilet, it is not because of their poverty but because of their lacking the requisite will.” It ignores all data that shows how schools are still also a breeding ground for caste-based discrimination, with lower caste students often asked to sit separately in the verandah outside the classroom, and forced to clean toilets. It does recognise that the impact of this judgment will mean that 68 percent of Scheduled Caste women, 41 percent of Scheduled Caste men and over 50 percent of all women in Haryana will be barred from contesting elections. It recognises the numbers and ignores the same.

The faults of the judgment, however, do not end with its classist stance. Not only is the judgment faulty, it also lacks basis in constitutional philosophy.

The judgment suggests that the court’s understanding and treatment of education is a significant departure from the history and evolution of the right to education. According to Article 45 of the Indian constitution, it was the duty of the state to provide free and compulsory primary education. In 2002, this duty was transformed to a corresponding right in the form of introduction of Article 21A by the 86th Amendment to the constitution. Subsequently, in 2009, the parliament enacted the Right of Free and Compulsory Education Act (RTE), which highlighted the importance of primary education, and reiterated the right of every citizen to claim it of the government.

Jhuma Sen is an Assistant Professor at O.P. Jindal Global University. She can be reached at sen.jhuma@gmail.com

Keywords: Supreme Court Indian Supreme Court Haryana Constitution Panchayati Raj Rajbala
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