The Supreme Court Judgment on the Haryana Panchayati Raj Act Privileges the Privileged

The Haryana Panchayati Raj (Amendment) Act, 2015, which was upheld by the Supreme Court on 10 December. prescribes a set of criteria because of which prospective candidates will be prohibited from contesting the civic body elections on the basis of their education, debt payments and property Hindutan Times
17 December, 2015

On 13 December 2015, a story in The Indian Express highlighted a peculiar predicament that the residents of Nimkheda—a village with a reported population of 1,674 people in the Mewat district of Haryana—are confronted by. Nimkheda, which elected the country’s first all-women gram panchayat ten years ago, continues to be governed by a council that is predominantly female, comprising seven women and three men. However, none of these ten members will be eligible for the upcoming Panchayat elections. In fact, as the report stated, the village may not even succeed in finding suitable candidates for the three seats that are reserved for women in the council. This is because of the Haryana Panchayati Raj (Amendment) Act, 2015, which was upheld by the Supreme Court on 10 December. The act prescribes a set of criteria because of which prospective candidates will be prohibited from contesting the civic body elections on the basis of their education, debt payments and property.

It disqualifies prospective candidates from standing for the post of the panch or sarpanch if they are: men from the general category who have not passed Class 10; men belonging to the scheduled castes or women who have not completed their education up to class 8 and; women from the scheduled castes who have not graduated from class 5. The act also prohibits candidates on the basis of their unpaid arrears on agricultural loans, electricity bills and the lack of a functional toilet at home.

The situation that Nimkheda finds itself in is a side-effect of this problematic verdict. Both, the possible consequences of the ruling, and the reasoning the court used to arrive at it, are deeply disturbing.

It is not difficult to predict which section of society this judgment will affect the most, based solely on the caveat around education. The court recorded the numbers itself, observing that its decision would render 43 percent of the rural population, 68 percent of the scheduled caste women and 41 percent of the scheduled caste men in Haryana ineligible for the elections.

Curiously, the judgment went on to note that it did not have access to exact figures regarding the number of people disqualified under each separate category. However, much of this data was available through the findings of the 2011 Census and was cited extensively by Kirti Singh—the lawyer representing Rajbala, Kamlesh and Preet Singh who have challenged this act. Rajbala is a former Panchayat Samiti member who is now a women’s rights activist in Fatehbad at Haryana, and is literate but not educated. Kamlesh, is a literate scheduled caste candidate from Kaimri village in Hisar, who lost the last Panchayat elections by a narrow margin. Preet Singh is a farmer who has had no formal education, although both his sons are educated. He has been working against the atrocities inflicted on Dalits and women in Bhambheva village. (Disclaimer: I briefly assisted on the case, drafting all the pleadings on behalf of the petitioners, along with Kirti Singh, who is my mother-in-law.)

The court noted, for instance, that although a uniform academic qualification of “middle pass”—passing class 8has been prescribed for men from a scheduled caste, “how many men under these categories would be qualified to contest is not clear, as the exact data regarding their respective educational qualifications is not available on the record.” However, the petitioners had submitted this information to the court. The findings indicated that roughly 62 percent of the scheduled caste men in the state would be excluded from contesting the elections for the post of panch or sarpanch simply due to the educational criteria. In fact, nearly 56 percent of the men above the age of 20 in the general category; 68 percent of the women about 20 years in the general category; and a staggering 83 percent of the scheduled caste women above the age of 20 would not be able to contest the elections. The disqualifications that this act has mandated based on debt, electricity arrears and toilet facilities will presumably result in an expected increase in these figures.

As the numbers clearly suggest, the women of Haryana and the state’s poorest sections from its rural population will feel the cumulative effect of the criteria the most severely. The disqualifications based on the accumulation of debts, for instance, will act as a barrier for families that may not be in a position to repay their loans, despite having the intention to do. Similarly, people who belong to villages which are characterised by basic inadequacies such as historically underequipped schools, fewer irrigation facilities or weak sewage infrastructure would find themselves drastically disenfranchised when compared to their more prosperous counterparts. The bulk of those who will be penalised by the act would most likely belong to already backward groups—such as impoverished households or agrarian families facing crop failures—not middle-income or relatively well-to-do homes.

The court’s response to this nuance is surprising. It acknowledges that “in rural India, particularly people in the agricultural sector suffer from the problem of indebtedness,” and that this has led to farmer suicides across the country. However, it goes on to note “It is the submission of the respondents [the government of Haryana] that such incidents are very negligible in the State of Haryana as the agricultural sector of Haryana is relatively more prosperous compared to certain other parts of the country.” Cementing its position in this regard, the court states, “We do not wish to examine the statistical data in this regard nor is much of it available on record.”

This stance is particularly hard to digest. Less than a year ago, the government of Haryana had combated what the court has termed “negligible incidents” by announcing partial waivers of electricity bills for farmers in the state. This decision was taken on account of the losses the farmers had incurred due to extensive crop damage during the untimely rains and storms in March and April

Perhaps a more sensitive approach would have been for the court to draw a distinction between those who lack the ability to comply, particularly when it comes to repayment of debts, and those who choose not to as an act of defiance. Creating an exception for the former may also have reflected some degree of fairness in the decision. Instead, the court observes that “the justness of such a situation” is in the realm of legislative, not judicial, wisdom. Through this qualifier, it conveniently dismisses its role in examining whether it is just to penalise a person for his or her debt.

The most perplexing part of the reasoning, however, is the Supreme Court’s observation that elections are an expensive affair, as it states that a deeply indebted person would usually not have the means to contest one in any case. In an extension of this logic, the court calls the challenge “more theoretical than real,” raising questions about whether an individual’s rights can be disregarded simply because it is difficult to exercise them.

In its haste to give educational criteria the constitutional nod, the Supreme Court took certain positions that were surprisingly condescending towards the “uneducated.” The court notes, “It is only education which gives a human being the power to discriminate between right and wrong, good and bad.” This rationale forms the backbone of the decision in one sense. It is the plank upon which the court finds a “reasonable nexus” between the legislation and objective it seeks to achieve by implying that an educated person would be able to discharge his or her duties as an elected Panchayat official more effectively than someone who is uneducated. This “reasonable nexus”—a link between the act and its aim—is an essential condition for upholding the law in case it is challenged on grounds of the right to equality. The remark stands out because it is an assertive view, not an observable fact or a settled principle of law, and is therefore, completely unsubstantiated. By saying that it is only education which enables one to discern good from bad and right from wrong, the verdict completely ignores the astounding work done by many uneducated, former Panchayat office holders nationwide, including the petitioners. Yet, it is this very view that has rendered the act constitutional.

The court’s reasoning acquires a myopic overtone in the context of its findings on toilets. Simply because there are schemes in Haryana that pay rural households for the construction of toilets, the court concludes that any person without a functional toilet lacks the requisite will to own one. It does not entertain the idea of attributing this situation to other causes, such as the failure of these schemes in certain areas, the paucity of necessary infrastructure such as septic tanks and sewage systems, the diversion of funds at the local level, or maintenance costs. It also fails to consider the homeless, who would be ineligible to avail of such schemes as they have no place of residence. The reasoning rests on the assumption that, despite the risk of disease, people without toilets enjoy defecating in the open.

The implication of this decision on the broader democratic process in villages is disquieting. Through various disqualifications that essentially target the same section of the population multiple times, the judgment has made it much harder for members from marginalised communities to elect representatives from among themselves. This also dilutes the vision behind Panchayati Raj institutions—to organise villages into units of local self-governance, where the people would govern themselves. The decision affirms that the Constitution gives Panchayats extensive powers, authority, and responsibilities. Yet, it does not grant disadvantaged groups the agency to benefit from such structures.

Quite possibly, though, the most troubling consequence of the Haryana Government’s move is the manner in which it shirks responsibility for failures of the state, and instead punishes its citizens. Additionally, the Haryana Government’s guarantee of free and compulsory education did not become enforceable until 2010. Yet, the court does not address the concerns of the current aspirants who may not even have had the opportunity to be formally educated when they were younger. While the judgment tries to engage with possible steps that people could take to mitigate issues such as debts, electricity bills and toilets, it is silent on how aspirants can tackle their lack of formal education. The decision contains no discussion on the existence and state of education infrastructure, or the resources and facilities that the government should have provided over the last few decades.

It is unsettling that the Supreme Court has decided to deny a majority of Haryana’s rural people a chance to represent themselves in the next Panchayat polls. But what makes it worse, is the lack of sensitivity and respect with which the court did so.