Governance · Law

Are Minimum Qualifications to Contest Elections Really Constitutional?

Anyatama Nayak breaks down and highlights the flaws in the minimum educational qualification requirement for political candidates in India, in this essay.

On the concluding day of the monsoon session, the Haryana State Assembly had passed a bill that fixed a minimum educational qualification for elections to the Panchayati Raj institutions. It also laid down various other criteria which can lead to the disqualification of a person contesting elections like failure to pay arrears of loans, electricity bill, not having a functional toilet at home and having charges framed against the contestant in a criminal case.[i] Such restrictions will have a colossal effect on the foundation on which democracy is based and established. With such changes, the very idea of democracy is being questioned. This rule limits the entry of the less privileged groups to take part in the level of government that is closest to them. With the aspiration to encourage literacy and elect better representatives, this bill ignores the discriminatory aspect and the repercussions that it can lead to. Excluding people on the above-mentioned basis would result in curbing the right and freedom of a person to contest in the election and to enjoy the political rights bestowed upon one by the Constitution. This limitation not only restricts one from contesting elections, but also interferes with the choices available for the voter to choose a representative collectively.

   The movement for having minimum educational qualification for contesting elections was first started by the State of Rajasthan. In December, 2014, an ordinance was passed, making certain minimum educational qualifications compulsory for contesting elections. It was named as The Rajasthan Panchayati Raj (Second Amendment) Act, 2015. As this ordinance was passed some days before the election was scheduled, the challenges regarding the constitutionality of this act in front of the High Court and the Supreme Court did not succeed. The regulations were such that a minimum of standard eighth pass for the post of Sarpanch excluding the tribal areas and standard fifth and standard tenth for elections to the Zila Parishad and Panchayat Samiti elections were required.[ii] Such educational criteria also lead to vacancies in Panchayat posts at certain places and also reports of fake certificates being bought and submitted.[iii]Some emphasized the fact that discrimination on the basis of education goes against the very spirit of the Indian constitution.[iv] The bill has fixed matriculation as the qualification for the general contestants whereas the qualification for women and Schedule Caste candidates would be the eighth standard. And for a woman candidate belonging to the Schedule Caste category the qualifying requirement will be standard fifth pass.[v] Such educational qualifications are discriminatory and infringe upon the right of a person to contest elections. The Supreme Court, in this case, treated the right of a person to contest elections as a statutory right whereas the right to vote is a constitutional right.[vi]This classification of the Supreme Court triggers the debate on the fact that the right to vote is statutory but the freedom to vote is constitutional in nature. The right and freedom of a citizen to vote and to stand for elections are inseparable and an integral part of a democracy.

   The gendered impact of this bill will exclude women from contesting elections at a far higher rate than it does for men[vii]. When the problems of under-representation of women in public bodies come to the limelight, such regressive laws that bar a majority of women from participating in the building block of Indian government is evident as erroneous. An example of this can be seen in the small village of Nimkheda in Haryana’s Mewat district where few women make the cut for elections and those women are also employed by the local Anganwadi centres, because of which they do not wish to quit their jobs in order to contest elections. Thus, the seats reserved too could have gone unrepresented.[viii] However, the results showed that the very same village that had ten years earlier made a record by electing the first all-female Panchayat, restored male dominance with seven men and only four women being elected to the Panchayat.[ix]

   On the restriction of people who are indebted and have not paid their arrears of loans and electricity bill, the court provides for the reasoning that such a challenge to the bill is more theoretical than practical. Further, the court states that elections being an expensive affair should not be taken up by those who are indebted.[x] Such assumptions would render exclusion of a large group of people from exercising their constitutional right because the Supreme Court categorizes it as a reasonable restriction. And when indebtedness is characterized as an individual choice due to which one becomes unfit to stand as a candidate, it rules out the possibility that, most specifically rural, indebtedness is structural and not individual.[xi] It can arise from the basic fact that the government has failed to provide for a feasible social safety net.

   When it is evident that the right to vote and the right to stand for office cannot be separated it should be treated as such. Democracy is based on the idea of every citizen having the freedom to participate in government. Standing for elections and contesting to be the choice of the public as their representative is an important part of the workings of democracy and restricting people from this right through seemingly just and neutral criteria is wrong. The court has also not taken into consideration the effect of such law, which reflects a class-based bias especially against the rural poor.

References:

[i]The Haryana Panchayati Raj Amendment Act, 2015 (http://www.harpanchayats.gov.in/hidden/-/asset_publisher/BIldmM0nyFKQ/content/haryana-panchayati-raj-amendment-act-2015/5579304)

[ii] Rajasthan passes bill on eligibility for Panchayat polls , The Hindu, http://www.thehindu.com/news/national/other-states/rajasthan-passes-bill-on-eligibility-for-panchayat-polls/article7041483.ece

[iii] New Educational Criteria leaves Panchayat Posts Vacant, The Hindu, http://www.thehindu.com/news/cities/Delhi/new-education-criteria-leave-panchayat-posts-vacant/article6846736.ece

[iv] Against the grain, Indian Express (Last accessed- Dec 11 2015) http://indianexpress.com/article/opinion/editorials/against-the-grain-7/

[v] Minimum qualification set as Haryana passes Panchayati Raj Bill, The Hindu (Last accessed-Sep 8 2015)

http://www.thehindu.com/news/national/other-states/minimum-qualification-set-as-haryana-passes-panchayati-raj-bill/article7626719.ece

[vi] Upendra Baxi, Supreme Error, Indian Express,http://indianexpress.com/article/opinion/columns/supreme-error/

[vii]Govt. can’t punish us for lack of education: Women on Haryana new poll law, The Hindu , http://www.thehindu.com/news/national/women-candidates-hit-back-at-haryanas-new-poll-law-on-education-qualification/article7735734.ece

[viii]Ritika Chopra, Thanks to Haryana Law and SC order these Women and Their village will Fall off the Map , Indian Express,http://indianexpress.com/article/india/india-news-india/thanks-to-haryana-law-and-sc-order-these-women-and-their-village-will-fall-off-the-map/

[ix] Haryana: Class X rule means only young women elected, only four of them, Indian Express

http://indianexpress.com/article/india/india-news-india/class-x-rule-means-only-young-women-elected-only-four-of-them/

[x] Utkarsh Anand, SC upholds Haryana law which makes education must for Panchayat candidates.

[xi] The anti-democratic verdict of the unelected: The Supreme Court on the Haryana Panchayati Raj Act, The Scroll,http://scroll.in/article/775203/the-anti-democratic-verdict-of-the-unelected-the-supreme-court-on-the-haryana-panchayati-raj-act

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