TMI Blog2015 (12) TMI 1685X X X X Extracts X X X X X X X X Extracts X X X X ..... while examining the constitutional validity of certain provisions of The Act. The learned Judge R.C. Lahoti (as his Lordship then was) speaking for the Bench held that right to contest an election is neither a Fundamental Right nor a common right. It is a right conferred by statute. His Lordship went on to hold that "at the most, in view of Part IX having been added in the Constitution, a right to contest the election for an office in Panchayat may be said to be a constitutional right. We are bound by this view taken by a three Judge Bench while deciding this question in this writ petition. In the light of aforementioned two authoritative pronouncements, we are of the considered opinion that both the rights namely "Right to Vote" and "Right to Contest" are constitutional rights of the citizen. Keeping in view the powers, authority and the responsibilities of Panchayats as specified in Article 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of the Panchayats as specified in Article 243-H, it is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o effectuate such obligation of the State, Constitution authorised (even prior to the 73rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make laws with respect to; 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Laws have been made from time to time by State Legislatures establishing a three-tier Panchayat system by 1980 s. It was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of a three-tier Panchayati Raj institutions be provided under the Constitution. Hence, the 73rd Amendment of the Constitution by which Part IX was inserted with effect from 24.4.1993. 4. Under Article 243B [Article 243B. Constitution of Panchayats (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause ( 1 ), Panchayats at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt out in Article 243G and 243H. Such powers and responsibilities are to be structured by legislation of the State. The establishment of an autonomous constitutional body to superintend the election process to the PANCHAYATS is stipulated under Article 243K. 7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as THE ACT ) was enacted to bring the then existing law governing PANCHAYATS in the State in tune with the Constitution as amended by the 73rd amendment. As required under Article 243B[ See Footnote 1 ], a three tier Panchayat system at the Village, Samiti and District level is established under THE ACT with bodies known as Gram Panchayat, Panchayat Samiti and Zila Parishad. Part V Chapter XX of THE ACT deals with provisions relating to elections to the PANCHAYATS. 8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall be divided into wards [Section 162. Electoral division: Every sabha area, block and district shall be divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act]. 9. Section 165 [Section 165. Persons qualified to be registered as voters.- Every person who is entitled to be registered as voter in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the enactment is violative of Article 14 of the Constitution. It is argued on behalf of the petitioners that (i) the impugned provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution. They create unreasonable restrictions on the constitutional right of voters to contest elections under the ACT [ That the Respondents have passed the impugned Act and Notification without any consideration, regard or appreciation for the empirical data pertaining to the number of people that would be prevented from contesting Panchayati Raj elections by its actions. That the Respondents actions have the effect of disqualifying 56.80% of the population who would need to be matriculation pass (69,86,197) and 79.76% of the population who would need to be middle-pass (10,83,052), in order to contest elections. That by its actions, the Respondents have prevented an overwhelming majority of the population from contesting elections, in contravention of Article 14, without any regard for Constitutional principles. [See: Ground G of the Petition]; (ii) they create an artificial classification among voters (by demanding the existence of certain criter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the legislature best comprehends the needs of the society [Maru Ram v. Union of India Others, (1981) 1 SCC 107] . The decision to prescribe such a qualification is in the realm of wisdom of the legislature [In Re: The Kerala Education Bill, 1957, (1959) SCR 995] and the Courts do not sit in review of such wisdom on the ground that the legislative decision is arbitrary [State of A.P. Others v. Mcdowell Co. Others, (1996) 3 SCC 709 (See para 43)]. 18. Answers to questions raised by the petitioners in this writ petition, in our opinion, inevitably depend upon answer to the question whether right to vote or the right to contest an election to any of the constitutional bodies is a constitutional or a statutory right, since the extent to which curtailment or regulation of such right is permissible depends upon the nature of the right. 19. Prior to the 73rd Amendment of the Constitution, the Constitution contemplated elections to the office of the President, Vice-President, the two Houses of the Parliament known as Rajya Sabha and Lok Sabha and the State Legislatures. The Legislatures in certain States are bicameral. They are known as Legislative Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother v. Election Commission of India, (2012) 7 SCC 340: every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution . . [Para 101. In my opinion, therefore, subject to the fulfillment of the various conditions stipulated in the Constitution or by an appropriate law made in that behalf, every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution-the straight conclusion of Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, that every Indian has a right to elect and be elected-subject to statutory regulation , which rights can be curtailed only by a law made by the appropriate legislation, that too on grounds specified under Article 326 only.] No doubt, it was a part of the dissenting opinion. It was a case dealing with allotment of election symbols and the right of a political party to secure . an election symbol on a permanent basis irrespective of its participation and performance judged by the vote share it commanded at any election. [ For complete discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loser scrutiny in an appropriate case for more than one reason. One of them is that the inquiry in the said judgment commenced with the examination of Article 326 which has no application to elections to the Legislative Councils. The text of Article 326 is express that it only deals with the adult suffrage with respect to Lok Sabha and Legislative Assemblies. In our opinion the statement (extracted earlier from para 20 of the said judgment) is made without analysis of relevant provisions of the Constitution apart from being unnecessary in the context of the controversy before the Court and is further in conflict with the later judgment in PUCL s case. 26. In K. Krishna Murthy (Dr.) Others v. Union of India Another, (2010) 7 SCC 202 para 77, speaking for a Constitution Bench of this Court, Balakrishnan, CJ. recorded that: it is a well-settled principle in Indian Law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights . . For recording such conclusion reliance was placed on certain observations made in an earlier judgment (decided by a bench of two judges) of this Court in Mohan La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case for invalidating the restrictions that have been placed on these rights as a consequence of reservations in local self-government. We do not agree with this contention. Para 80. In this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in view of the legitimate governmental objective of safeguarding the interests of weaker sections by ensuring their adequate representation as well as empowerment in local self-government institutions. The position has been eloquently explained in the respondents submissions, wherein it has been stated that the asymmetries of power require that the chairperson should belong to the disadvantaged community so that the agenda of such panchayats is not hijacked for majoritarian reasons . (Cited from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [The judgment of Allahabad High Court is dated 19.2.1991 and the appeal in this Court is decided on 15.5.1992] in Mohan Lal case. 30. Again in Krishnamoorthy v. Sivakumar Others, (2015) 3 SCC 467, this court observed that the right to contest an election is a plain and simple statutory right [Para 60. The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right ] 31. We are of the opinion that observations referred to above are in conflict with the decisions of this Court in PUCL case and DMDK case, which were rendered after an elaborate discussion of the scheme of the Constitution. We are of the clear opinion that the Constitution recognises the distinction between the Right to Vote at various elections contemplated under the Constitution and the Right to Contest at such elections. There are various other electoral rights recognised or created by the statutes and the Representation of the People Act, 1951 recognises the same [Section 123(2). Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the Anglo Indian Community. 33. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised under Articles 325 and 326 subject to limitations (qualifications and disqualifications) prescribed by or under the Constitution. On the other hand the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to Members of the Electoral Colleges specified under Article 80(4) (5) and Article 171 (3)(a), (b), (c), (d) [Article 171(3) Of the total number of members of the Legislative council of a State:] (a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All that we can infer from our constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents.] . 34. The Electoral College for election to the Office of the President consists of elected members of both Houses of Parliament and elected members of the Legislative Assemblies of the State while the Electoral College with respect to the Vice President is confined to Members of both Houses of Parliament. Right to Contest 35. The Constitution prescribes certain basic minimum qualifications and disqualifications to contest an election to any of the above mentioned offices or bodies. Insofar as election to the Office of the President and Vice President are concerned, they are contained under Articles 58 and 66 respectively. Insofar as Parliament and the State Legislatures are concerned, such qualifications are stipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinction between those two expressions. In common parlance, it is understood that a qualification or disqualification is the existence or absence of a particular state of affairs, which renders the achievement of a particular object either possible or impossible. Though there are two sets of Articles purporting to stipulate qualifications and disqualifications, there is neither any logical pattern in these sets of Articles nor any other indication which enables discernment of the legal difference between the two expressions. We reach such a conclusion because citizenship of India is expressly made a condition precedent under Articles 84 and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also expressly stipulated to be a disqualification for membership of either of the above mentioned bodies under Articles 102 and 191. In view of the stipulation under Articles 84 and 173 - citizenship is one of the requisite qualifications for contesting election to either Parliament or the State Legislature, we do not see any reason nor is anything brought to our notice by learned counsel appearing on either side to again stipulate under the Articles 102 and 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather amorphous, may realise their growing strength. Unfortunately, effect of these changes by way of constitutional amendment has not been fully realised in the semi-feudal set-up of Indian politics in which still voice of reason is drowned in an uneven conflict with the mythology of individual infallibility and omniscience. Despite high ideals of constitutional philosophy, rationality in our polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation. The Seventy-third Amendment of the Constitution is addressed to remedy these evils.] for which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any reason to take a different view. 43. On the other hand, this Court in Javed Others v. State of Haryana Others, (2003) 8 SCC 369, held that right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disqualified by or under any law for the time being in force for the purposes of elections to the Legislatures of the State concerned is also disqualified for being a member of PANCHAYAT. In other words qualifications and disqualifications relevant for membership of the Legislature are equally made applicable by reference to the membership of PANCHAYATS. Though such qualifications and disqualifications could be stipulated only by Parliament with respect to the membership of the Legislature of a State, Article 243F authorises the concerned State Legislature also to stipulate disqualifications for being a member of PANCHAYAT. 47. The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State. 48. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 175 reads as follows: Section 175. Disqualifications.-( 1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who- (a) has, whether before or after the commencement of this Act, been convicted- (i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22 of 1955 ), unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or (ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his release; or (aa) has not been convicted, but charges have been framed in a criminal case for an offence, punishable with imprisonment for not less than ten years; (b) has been adjudged by a competent court to be of unsound mind; or (c) has been adjudicated an insolvent and has not obtained his discharge; or (d) has been removed from any office held by him in a Gram Panchayat, Panchayat Samiti or Zila Parishad under any provision of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e along with interest at the rate of twenty-one percentum per year in pursuance of a general or special order of the prescribed authority within the time specified by it; or (p) being a Sarpanch or Panch or a Chairman, Vice-Chairman or Member, President or Vice-President or Member of Panchayat Samiti or Zila Parishad has in his custody prescribed records and registers and other property belonging to, or vested in, Gram Panchayat, Panchayat Samiti or Zila Parishad and does not handover the same in pursuance of a general or special order of the prescribed authority within the time specified in the order; or (q) x x x (r) admits the claim against Gram Panchayat without proper authorization in this regard; (s) furnishes a false caste certificate at the time of filing nomination: Provided that such disqualifications under clauses (r) and (s) shall be for a period of six years. (t) fails to pay any arrears of any kind due to him to any Primary Agriculture Co-operative Society, District Central co-operative Bank and District Primary co-operative Agriculture Rural Development Bank; or (u) fails to pay arrears of electricity bills; (v) has not passed matriculation ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contingencies disqualified from contesting elections. 53. At the outset, we must make it clear that neither learned counsel for the petitioners nor other learned counsel (who were permitted to make submissions though they are not parties, having regard to the importance of the matter) made any specific submission regarding constitutionality of sub- section (1)(aa) of Section 175 which prescribes that (1) No person shall be a .. or continue as such who (aa) has not been convicted, but charges have been framed in a criminal case for an offence, punishable with imprisonment for not less than ten years . The challenge is confined to clauses (t), (u), (v) and (w) of Section 175(1). 54. We first deal with the submission of violation of Article 14 on the ground of arbitrariness. 55. The petitioners argued that the scheme of the Constitution is to establish a democratic, republican form of Government as proclaimed in the Preamble to the Constitution and any law which is inconsistent with such scheme is irrational and therefore arbitrary . 56. In support of the proposition that the Constitution seeks to establish a democratic republic and they are the basic features of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been placed on various decisions including S.G. Jaisinghani v. Union of India [(1967) 2 SCR 703], Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212], Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311] to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In Mardia Chemicals case a three- Judge Bench held Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to be unreasonable and arbitrary and violative of Article 14 of the Constitution. Section 17(2) provides for condition of deposit of 75% of the amount before an appeal could be entertained. The condition has been held to be illusory and oppressive. Malpe Vishwanath Acharya v. State of Maharashtra [(1998) 2 SCC 1], again a decision of a threeJudge Bench, setting aside the decision of the High Court which upheld the provisions of Sections 5(10)(b), 11(1) and 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 pertaining to standard rent in petitions where the constitutional valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 6-A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is also declared invalid. ] 60. Coming to the Indian Council of Legal Aid Advice Others v. Bar Council of India Others, (1995) 1 SCC 732, it was a case where the legality of a rule made by the Bar Council of India prohibiting the enrolment of persons who completed the age of 45 years was in issue. The rule was challenged on two grounds. Firstly, that the rule was beyond the competence of the Bar Council of India as the Advocates Act 1961 did not authorise the Bar Council of India to prescribe an upper age limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 45 years. The rule, in our view, therefore, is clearly discriminatory. Thirdly, it is unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in the service of government or quasi-government or similar institutions at any point of time. Thus, in our view the impugned rule violates the principle of equality enshrined in Article 14 of the Constitution. ] 62. We are of the opinion that in view of the conclusion recorded by the Court that the rule is beyond the competence of Bar Council of India, it was not really necessary to make any further scrutiny whether the rule was unreasonable and arbitrary. Apart from that, in view of the conclusion recorded that the rule was clearly discriminatory, the inquiry whether the choice of the upper age limit of 45 years is arbitrary or not is once again not necessary for the determination of the case. At any rate, the declaration made by this Court in the said case with regard to a piece of subordinate legislation, in our view, cannot be an authority for the proposition that a statute could be declared unconstitutional on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t treatment by classifying them as a separate group merely because of the delay in taking the remedial action already decided upon. We do not doubt that the Judge s friend and counselor, the common man , if asked, will unhesitatingly respond that it would be plainly unfair to make any such classification. The common sense response that may be expected from the common man, untrammeled by legal lore and learning, should always help the Judge in deciding questions of fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory. (Para 20) 64. Petitioners placed reliance on the last sentence which said that the action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory in support of their submission that an Act could be declared unconstitutional on the ground that it is arbitrary. 65. We are of the opinion that Prabhakar Rao case is not an authority on the proposition advanced by the petitioners. The ratio of Prabhakar Rao case is that there was an unreasonable classification between the employees of the State of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt-III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed: 7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis. 44. It is this paragraph which is strongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament or the State legislatures. This Court has definitely ruled that the doctrine of due process of law has no place in our Constitutional system: A. K. Gopalan v. State of Madras, 1950 SCR. 88. Kania, C.J., observed (at p. 120):- There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. . . . . it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can join a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment. ] . As pointed out by Frankfurter, J., arbitrariness became a mantra. 69. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is arbitrary . 70. We shall examine the next facet of the challenge i.e. each of the four impugned clauses have created a class of persons who were eligible to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualification prescribed in the IMPUGNED ACT. 75. On the other hand, it is stated in the affidavit filed on behalf of respondent as follows: 10. That as per the National Population Register 2011, total rural population in the State is 1.65 cr out of which 96 lac are above 20 years of age. Further 57% of such population, who are over 20 years of age, is eligible to contest even after the introduction of impugned disqualification in respect of having minimum education qualification. 76. According to the Annexure-5 (to the said affidavit of the respondents) the details of the educational qualification of the persons above 20 years of age (under Section 173(2) [Section 173 (2). Every person who has attained the age of twenty- one years and whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected from any electoral division.] of THE ACT the minimum qualifying age for contesting any PANCHAYAT election is 21 years) are as follows: NATIONAL POPULATION REGISTER 2011 Number of persons above 20 years of age vis- -vis their educational qualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course to other qualifications and disqualifications prescribed by law. Of the 96 lakhs, 36 lakhs are illiterate and about 5 lakhs are literate but below primary level of education. The remaining 54.5 lakhs are educated, though the chart does not clearly indicate the exact break-up of the above 54.5 lakhs and their respective educational qualifications i.e. whether they are educated up to primary or middle or matriculation level and above. The said 54.5 lakhs constitute 57% of the rural population who are otherwise eligible to contest PANCHAYATS election by virtue of their being in the age group of 20 years and above. Of the 96 lakhs of rural population, 50 lakhs are men and 46 lakhs are women. Of them, 35 lakhs men, 20 lakhs women are literate above primary level, though exact break-up of educational qualification is not available. Even if we assume all the 20 lakhs women are matriculate and, therefore, eligible to contest any election under THE ACT, they would contribute less than 50% of the otherwise eligible women. 79. The abovementioned figures include all classes of the population including scheduled caste. 80. Coming to the statistics regarding scheduled caste populat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to Section 21 of THE ACT which catalogues the functions and duties of Gram Panchayat falling under 30 broad heads. To demonstrate the range of those heads, he pointed out some of the duties of a Gram Panchayat [ Section 21. Functions and duties of Gram Panchayat.-Subject to such rules as may be made, it shall be the duty of the Gram Panchayat within the limits of the funds at its disposal, to make arrangements for carrying out the requirements of sabha area in respect of the following matters including all subsidiary works and buildings connected therewith:-- XI. Non-conventional Energy Sources- (1) Promotion and Development of non-conventional energy schemes. (2) Maintenance of community non-conventional energy devices, including bio-gas plants and windmills. (3) Propagation of improved chulhas and other efficient devices. XXI. Social Welfare including Welfare of the Handicapped and Mentally Retarded- (1) Participation in the implementation of the social welfare programmes including welfare of the handicapped, mentally retarded and destitute. (2) Monitoring of the old age and widows pension scheme. ] and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be achieved. 86. The only question that remains is whether such a provision which disqualifies a large number of persons who would otherwise be eligible to contest the elections is unconstitutional. We have already examined the scheme of the Constitution and recorded that every person who is entitled to vote is not automatically entitled to contest for every office under the Constitution. Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest. No doubt such prescriptions render one or the other or some class or the other of otherwise eligible voters, ineligible to contest. When the Constitution stipulates [Articles 102(1)(c) and 191(1)(c). ] undischarged insolvents or persons of unsound mind as ineligible to contest to Parliament and Legislatures of the States, it certainly disqualifies some citizens to contest the said elections. May be, such persons are small in number. Question is not their number but a constitutional assessment about suitability of persons belonging to those classes to hold constitutional offices. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 6. Acts of insolvency.-(1) A debtor commits an act of insolvency in each of the following cases, namely:- (a) if, in India or elsewhere, he makes a transfer of all or substantially all his property to a third person for the benefit of his creditors generally; (b) if, in India or elsewhere, he makes a transfer of his property or of any part thereof with intent to defeat or delay his creditors; (c) if in India or elsewhere, he makes any transfer of his property, or of any part thereof, which would, under this or any other enactment for the time being in force, be void as fraudulent preference if he were adjudged an insolvent; (d) if with intent to defeat or delay his creditors,- (i) he departs or remains out of the territories to which this Act extends; (ii) he departs from his dwelling-house or usual place of business or otherwise absents himself; (iii) he secludes himself so as to deprive his creditors of the means of communicating with him; (e) if any of his property has been sold in execution of the decree of any Court for the payment of money; (f) if he petitions to be adjudged an insolvent under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with him; e) if any of his property has been sold or attached for a period of not less than twenty-one days in execution of the decree of any Court for the payment of money; f) if he petitions to be adjudged an insolvent; g) if he gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts; h) if he is imprisoned in execution of the decree of any Court for the payment of money. (2) Without prejudice to the provisions of sub- section (1), a debtor commits an act of insolvency if a creditor, who has obtained a decree or order against him for the payment of money (being a decree or order which has become final and the execution whereof has not been stayed), has served on him a notice (hereafter in this section referred to as the insolvency notice) as provided in sub- section (3) and the debtor does not comply with that notice within the period specified therein: Provided that where a debtor makes an application under sub- section (5) for setting aside an insolvency notice-- a) in a case where such application is allowed by the Court, he shall not be deemed to have committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons. It is also a fact that there have been cases in various parts of the country where people reportedly commit suicides unable to escape the debt trap. But, it is the submission of the respondents 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. We do not wish to examine the statistical data in this regard nor much of it is available on record. In our view, such an enquiry is irrelevant for deciding the constitutionality of the impugned provision. We are also not very sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections whether at PANCHAYAT level or otherwise. We can certainly take judicial notice of the fact that elections at any level in this country are expensive affairs. For that matter, not only in this country, in any other country as well they are expensive affairs. In such a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it would be beyond the economic capacity of such persons. In our opinion, the challenge is more theo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee (ODF) status. For this purpose, both the Center and State of Haryana have also been providing financial incentive to the people below poverty line (BPL) in the rural areas of State of Haryana. Besides few other Above Poverty Line (APL) household categories namely, all SCs, small farmers, marginal farmers, landless labourers with homestead, physically handicapped and women headed households were also identified for the purpose of granting financial incentive since 01.04.2012 under the said scheme. 5. That the financial incentive is also being provided to Below Poverty Line (BPL) households for the construction and usage of individual household latrines (IHHL) in recognition of their achievements. In Haryana total rural BPL households are 8,56,359 and against it, 7,21,038 households have been provided incentive for the construction of IHHL. Similarly, Above Poverty Line (APL) households restricted to SCs/STs, small and marginal farmers, landless labourers with homestead, physically handicapped and women headed households have also been provided financial assistance w.e.f. 04.04.2012. Presently, w.e.f. 02.10.2014 the financial incentive is being given to above category of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such practice. The reasons are many. Poverty is one of them. However, this unhealthy practice is not exclusive to poorer sections of rural India. In a bid to discourage this unhealthy practice, the State has evolved schemes to provide financial assistance to those who are economically not in a position to construct a toilet. As rightly pointed by the respondents, if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will. One of the primary duties of any civic body is to maintain sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and administer them must set an example for others. To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in our view, can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the object sought to be achieved by the Act. 96. For the above-mentioned reasons, we see no merit in this writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned brother rightly took note of the few decisions, which had while deciding the main questions involved in those cases also incidentally made some observations on these two issues, which we feel were not in conformity with the law, laid down in the aforementioned two decisions. 7. Coming now to the question of constitutional validity of Section 175 (1)(v) of the Act which provides that candidate must possess certain minimum educational qualification if he/she wants to contest an election. In my opinion, introduction of such provision prescribing certain minimum educational qualification criteria as one of the qualifications for a candidate to contest the election has a reasonable nexus with the object sought to be achieved. 8. In fact, keeping in view the powers, authority and the responsibilities of Panchayats as specified in Article 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of the Panchayats as specified in Article 243-H, it is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned to Panchyats in Part IX. It is the legislative wisdom ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
